Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2830S	State of California (State Water Resources Control Board) 1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations Complaint alleges independent interference violation unless liability for interference cannot be established independently of another violation. (p. 13.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [judicial appeal pending].) In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. (p. 10.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General In Contra Costa Community College District (2019) PERB Decision No. 2652 (Contra Costa), the union did not allege that the employer interfered with representational rights by refusing to provide sufficient information about the accusations to allow meaningful representation. (Id. at p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on the employer’s refusal to provide copies of written complaints against two accused employees. (Ibid.) The Board found no right to obtain such complaints at the investigatory interview stage, though it noted that after the investigatory interview stage and in advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer must normally work with the union on any necessary redactions or other privacy accommodations and normally must provide such records. (Contra Costa, supra, pp. 9, 17 & 25.) (p. 11.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General In addition to prohibiting interference with protected rights, the Dills Act also prohibits an employer from failing or refusing to meet and confer in good faith. (Gov, Code, § 3519, subd. (c).) Pursuant to this duty, an employer must normally provide an exclusive representative with “all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining.” (City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) Because discipline is a mandatory subject of bargaining, information pertaining to actual or potential discipline is presumptively relevant, even if the only contemplated disciplinary forum is extra-contractual. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 9.) Thus, while a charging party can allege a state employer violated Dills Act section 3519, subdivisions (a) and (b) by denying a request for sufficient information to allow meaningful representation at an investigatory interview, a charging party can independently allege the employer violated its duty to meet and confer in good faith. (pp. 9-10.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In Contra Costa Community College District (2019) PERB Decision No. 2652 (Contra Costa), the union did not allege that the employer interfered with representational rights by refusing to provide sufficient information about the accusations to allow meaningful representation. (Id. at p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on the employer’s refusal to provide copies of written complaints against two accused employees. (Ibid.) The Board found no right to obtain such complaints at the investigatory interview stage, though it noted that after the investigatory interview stage and in advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer must normally work with the union on any necessary redactions or other privacy accommodations and normally must provide such records. (Contra Costa, supra, pp. 9, 17 & 25.) (p. 11.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Where the union requests sufficient information to allow meaningful representation at an investigatory interview, bad faith bargaining and interference can be alleged as independent claims, because proving one does not necessarily prove the other. For instance, because an investigatory interview can occur with minimal lead time (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 31, fn. 19), there may be no information request until just before or even after the interview begins, and such a request may be in the form of an employee’s question, e.g., “what are the accusations against me?” Failing to answer that question sufficiently can interfere with protected rights without violating the obligation to bargain in good faith. In other cases, an employer may schedule an investigatory interview on a slower track. In such an instance, an employer may violate its duty to meet and confer in good faith if it refuses, without an adequate basis, a union’s information request. And while failure to provide information always constitutes at least derivative interference with protected rights, it can also constitute an independent interference violation, for instance if it leaves a union and employee without sufficient information to allow meaningful representation at an investigatory interview. (p. 10.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [judicial appeal pending].) In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. (p. 10.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In Contra Costa Community College District (2019) PERB Decision No. 2652, the Board specifically noted that PERB precedent protects representational rights to a greater extent than National Labor Relations Board precedent, and that it disagrees with Pacific Telephone and Telegraph Co. (1982) 262 NLRB 1048 to the extent it arguably allows an employer to provide very general notice of alleged misconduct. (Id., p. 27.) Instead, “[PERB’s] touchstone is what is necessary to allow meaningful representation.” (Ibid.) (p. 9.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews As part of protected representation rights, the union and the represented employee have the right to receive information about the nature of any alleged wrongdoing sufficiently in advance of the investigative interview to allow for consultation before, and thus meaningful representation during, the interview. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 26-30.) The employer must provide more than merely a vague summary such as “a vehicle accident you were involved in on [a specific date],” or “insubordination and/or sabotaging of the [employer’s] mission.” (Id. at p. 27.) After receiving sufficient information, the union and employee have the right to consult for an amount of time that is reasonable given the nature of the allegations and the information provided. (Id. at pp. 29-30.) Assessing such issues is typically fact intensive. (Id. at p. 30.) (pp. 8-9.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews A union has the right to represent an employee it exclusively represents in an investigatory interview, and the employee has a corresponding right to union representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 7 (Contra Costa); Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-14; Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 13-14.) Under the Dills Act and the other labor relations statutes PERB enforces, an employer interferes with union and employee representational rights if it does not allow meaningful representation during an investigative interview. (Gov. Code, § 3519, subds. (a) & (b); Contra Costa, supra, PERB Decision No. 2652, p. 26, citing State of California (Department of Corrections) (1998) PERB Decision No. 1297-S, adopting proposed decision at p. 12.) (p. 8.) more or view all topics or full text.	47	42	08/10/22
2517Ca	Fresno County Superior Court 1107.08000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Proceedings During or After Court Enforcement, Review, or Remand On remand from court of appeal, the Board vacated certain findings pursuant to the court’s order and issued a modified order. more or view all topics or full text.	43	163	04/12/19
J029E	St. HOPE Public Schools 1311.01000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; In General Board denied request for judicial review of unit determination decision because the underlying determination did not involve a novel issue or statutory interpretation but rather applied a settled statutory interpretation to the particular facts presented. more or view all topics or full text.	43	153	03/11/19
2596M	County of Riverside 1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated Ordinarily, when a party requests to withdraw its exceptions, by operation of PERB Regulation 32305, subdivision (a), the proposed decision becomes final and binding as to the parties, but without precedential effect for future decisions. However, where the parties’ dispute was disposed of via a global settlement of all outstanding issues, including the collateral unfair practice charge, and involved substantial back pay to the affected employees as part of the settlement agreement, the Board exercised its discretion to vacate the proposed decision as part of granting the withdrawal of exceptions. more or view all topics or full text.	43	76	11/16/18
A448E	Community Learning Center Schools, Inc. 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 1106.02000: CASE PROCESSING PROCEDURES; DISCOVERY; Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 1106.02000: CASE PROCESSING PROCEDURES; DISCOVERY; Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Rules of privilege apply in unfair practice hearings. By asserting its reliance on advice of counsel as a defense to interference and retaliation allegations, the respondent waived the attorney-client and attorney work-product privileges with respect to that advice. However, because the scope of any waiver of privilege must be narrowly construed, the Board remanded the matter to the ALJ for greater clarification of the scope of any potential waiver as to documents sought from the respondent’s attorneys by the charging party via a subpoena duces tecum. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. The Board remanded the matter to the ALJ to address the scope of any waiver of attorney-client or attorney work-product privileges with respect to the requested documents. more or view all topics or full text.	42	16	06/29/17
A448E	Community Learning Center Schools, Inc. 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Although motive is not relevant to a prima facie interference allegation, it may be part of the respondent’s affirmative defense, such as a legitimate business purpose. In such cases, PERB analyzes the proffered defense similar to a “mixed motive” discrimination case, by determining not only whether the employer’s stated justification is legitimate, but also whether it was the reason for the employer’s action. Thus, motive and specifically whether a respondent’s proffered motive is pretextual, may be an issue relevant to an employer’s defense to an interference allegation. more or view all topics or full text.	42	16	06/29/17
A445M	City of Watsonville 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse. In situations where it is the employer who has provided the employee organization with a written notice of a declaration of impasse, it is incumbent on the employee organization to keep track of the statutory window period and to file its request for factfinding within that period. Employee organizations’ factfinding request was untimely because it was filed more than one year after the organizations initially provided the city with a written declaration of impasse and the organizations never withdrew the declaration. Neither the parties’ post-impasse conduct nor MMBA section 3505.7’s requirement that unions and employers meet and confer prior to the public agency’s adoption of its annual budget revived the employee organizations’ right to request factfinding upon reaching a second impasse in the same round of negotiations. more or view all topics or full text.	42	9	06/27/17
A455M	County of Solano 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse The timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse. In situations where it is the employer who has provided the employee organization with a written notice of a declaration of impasse, it is incumbent on the employee organization to keep track of the statutory window period and to file its request for factfinding within that period. Employee organizations’ factfinding request was untimely because it was filed more than one year after the organizations initially provided the city with a written declaration of impasse and the organizations never withdrew the declaration. Neither the parties’ post-impasse conduct nor MMBA section 3505.7’s requirement that unions and employers meet and confer prior to the public agency’s adoption of its annual budget revived the employee organizations’ right to request factfinding upon reaching a second impasse in the same round of negotiations. more or view all topics or full text.	42	55	10/25/17
A445M	City of Watsonville 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General The timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse. In situations where it is the employer who has provided the employee organization with a written notice of a declaration of impasse, it is incumbent on the employee organization to keep track of the statutory window period and to file its request for factfinding within that period. Employee organizations’ factfinding request was untimely because it was filed more than one year after the organizations initially provided the city with a written declaration of impasse and the organizations never withdrew the declaration. Neither the parties’ post-impasse conduct nor MMBA section 3505.7’s requirement that unions and employers meet and confer prior to the public agency’s adoption of its annual budget revived the employee organizations’ right to request factfinding upon reaching a second impasse in the same round of negotiations. more or view all topics or full text.	42	9	06/27/17
2820M	County of Santa Clara 1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board PERB reviews the Office of the General Counsel’s (OGC) dismissal de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) At this stage of an unfair practice case, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (Ibid.) PERB does not resolve conflicting factual allegations or make conclusive factual findings. (Ibid.) Rather, PERB assumes that the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. (Ibid.) PERB therefore does not rely on the respondent’s factual statements if they explicitly or implicitly create a material factual conflict with charging party’s version of events, even if the respondent’s contentions appear better supported, or more persuasive, than the charging party’s contrary allegations. (Ibid.) PERB directs OGC to issue a complaint if it finds one or more contested, outcome-determinative facts (or mixed questions of law and fact), or if the parties’ positions reveal contested, colorable legal theories. (Id. at p. 3.) (p. 2.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 1103.02000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint PERB’s Office of the General Counsel must issue a complaint based on all legal theories for which the alleged facts state a prima facie case, even if a charging party has neglected to assert one or more colorable theories. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision No. 2452, pp. 53-54.) (p. 2, fn. 2.) more or view all topics or full text.	46	169	05/12/22