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DecisionDescriptionPERC Vol.PERC IndexDate
2822E Victor Valley Union High School District
409.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Failure to Exhaust Administrative Remedies
PERB rejected the District’s argument that because the union did not move to quash the deposition subpoena nor instruct the union president not to answer the questions objected to, it failed to exhaust its administrative remedies and therefore was barred from bringing the charge. A charging party is not required to exhaust all administrative remedies in another forum prior to filing a charge alleging interference. In this case, the union attorney objected to questions individually and lodged a standing objection to any questions about communications protected by associational privacy. PERB found those objections sufficient to preserve the issue for review. more or view all topics or full text.		 47 11 06/14/22
A490E Pasadena Area Community College District
1106.01000: CASE PROCESSING PROCEDURES; DISCOVERY; In General
When discovery disputes arise under the current regulatory scheme, ALJ’s may undertake in camera review of the disputed documents, apply the balancing test, and ultimately rule on whether the records should be disclosed. PERB Regulation 32170, subdivision (b)(12) resolves any ambiguity about Board agents’ ability to conduct in camera review that may have arisen from State of California (Department of Corrections) (2009) PERB Order No. Ad-382-S. more or view all topics or full text.		 46 109 01/27/22
A490E Pasadena Area Community College District
1106.01000: CASE PROCESSING PROCEDURES; DISCOVERY; In General
A subpoena that merely asks for all documents relevant to a claim or defense is overbroad and must be modified. more or view all topics or full text.		 46 109 01/27/22
A490E Pasadena Area Community College District
1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications
The qualified negotiations protection is not narrowly construed to maintain confidentiality only for pending negotiations, though PERB may consider the status of negotiations as part of all circumstances in its balancing test. more or view all topics or full text.		 46 109 01/27/22
A490E Pasadena Area Community College District
1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications
PERB has repeatedly recognized a protection for both public employers’ and unions’ internal negotiation strategy communications. (See, e.g., County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [an “employer benefits . . . from the . . . limited privilege that protects both unions and employers from being forced to reveal to the other party their internal collective bargaining strategies or tactics”]; Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 4 [PERB follows Berbiglia, supra, 233 NLRB 1476 by protecting certain confidential bargaining communications].) more or view all topics or full text.		 46 109 01/27/22
A490E Pasadena Area Community College District
1104.01000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; In General; Conduct of Hearing
When discovery disputes surrounding allegedly protected documents arise under the current regulatory scheme, ALJ’s may undertake in camera review of the disputed documents, apply the balancing test, and ultimately rule on whether the records should be disclosed. PERB Regulation 32170, subdivision (b)(12) resolves any ambiguity about Board agents’ ability to conduct in camera review that may have arisen from State of California (Department of Corrections) (2009) PERB Order No. Ad-382-S. more or view all topics or full text.		 46 109 01/27/22
2826M Tahoe-Truckee Sanitation Agency
1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated
The Board has on occasion denied a request to withdraw an unfair practice charge, e.g., in order to avoid infringing on statutory rights (Lake Elsinore Unified School District (2019) PERB Decision No. 2633, p. 1, fn. 1), or when an appeal involves a matter of continuing public interest and a precedential ruling on the matter will be instructive to all parties similarly situated (Oakland Unified School District, supra, PERB Order No. Ad-171a, p. 1). The Board, for example, has denied requests to withdraw in the interest of justice in representation matters involving large bargaining units (id. at p. 2; Grossmont, supra, PERB Order No. Ad-380, p. 2), and to address allegations that the State of California unlawfully implemented furloughs (State of California, supra, PERB Decision No. 2152-S, p. 5). more or view all topics or full text.		 47 30 07/07/22
2826M Tahoe-Truckee Sanitation Agency
1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated
The Board has discretion to grant or deny requests to withdraw and dismiss cases pending before the Board itself. (§§ 3509, subd. (a), 3541.3, subds. (i) and (n); PERB Reg. 32320, subd. (a)(2) [“The Board itself may . . . [¶] . . . take such other action as it considers proper.”]; County of Riverside (2020) PERB Decision No. 2707-M, p. 2.) The Board has a longstanding policy favoring voluntary settlement of disputes. (Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a.) The Board generally grants such requests where it finds the request to be in the best interest of the parties and consistent with the purposes of the applicable Act. (See, e.g., County of Riverside, supra, PERB Decision No. 2707-M, p. 3; Sanitation Districts, supra, PERB Decision No. 2656-M, p. 2; Santa Rosa, supra, PERB Decision No. 2653-M, p. 2.) more or view all topics or full text.		 47 30 07/07/22
2826M Tahoe-Truckee Sanitation Agency
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
In 2010 the NLRB began including daily compound interest in all monetary relief. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 41, fn. 23 [judicial appeal pending] (Bellflower), citing Kentucky River Medical Center 356 NLRB 6, 6.) The Board declined to reach that issue in Bellflower due to an agreement between the parties to apply simple annual interest. (Ibid.) Although the Board similarly did not reach the issue in this matter in light of the parties’ request to withdraw, it noted the possibility of considering whether PERB should adopt that method of calculating interest in a future case. more or view all topics or full text.		 47 30 07/07/22
2818I Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee
1404.03000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; General Principles of Contract Interpretation
In Lodi Unified School District (2020) PERB Decision No. 2723 (Lodi), the Board held that the traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (Id. at p. 12.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Ibid.) “[T]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Ibid.) Thus, the Board in Lodi held that we “must avoid interpreting contract language in a way which leaves a provision without effect.” (Ibid., citing State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.) Additionally, the Board has held that “[w]here contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning.” (Lodi, supra, PERB Decision No. 2723, p. 12, citing Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.) more or view all topics or full text.		 46 167 05/05/22
2818I Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee
1404.02000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; Board's Jurisdiction To Interpret Contracts
Although PERB does not resolve contract disputes, PERB may interpret contractual provisions as necessary to resolve unfair practice allegations. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 39-40; Modoc County Office of Education (2019) PERB Decision No. 2684, p. 15.) more or view all topics or full text.		 46 167 05/05/22
2818I Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee
602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
Past practice can be used to establish the status quo from which we assess an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous written language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) However, the inquiry is fundamentally different when analyzing the parties’ past practice to help ascertain the meaning of ambiguous contract language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In such circumstances, the past practice is but one tool for interpreting the contract, and therefore need not be as definitive as when it is defining the status quo in the absence of a contract term. (Id. at p. 22.) Union failed to establish either manner of past practice violation based on insufficient testimony and past practice consistent with the language of the MOU. more or view all topics or full text.		 46 167 05/05/22
2818I Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee
602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy
“PERB has always recognized newly created, implemented or enforced policy as subject to its unilateral action doctrine.” (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) more or view all topics or full text.		 46 167 05/05/22
2823S State of California (California Correctional Health Care Services)
1107.18000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Review of Findings Not Excepted To
Pursuant to PERB Regulation 32300, subdivision (e), the Board considers issues not raised in exceptions only where there is good cause to do so. (p. 10, fn. 9.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1107.02000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Weight Given to ALJ's Proposed Decision: Findings, Conclusions, Credibility Resolutions
To the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, PERB defers to such assessments unless the record warrants overturning them. (Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.) (p. 9.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Pursuant to PERB Regulation 32300, subdivision (e), the Board considers issues not raised in exceptions only where there is good cause to do so. (p. 10, fn. 9.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02159: SCOPE OF REPRESENTATION; Workloads
Davis Joint Unified School District (1984) PERB Decision No. 393 (Davis) does not establish a broad management right to change job duties. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 31 [Davis cannot be broadly construed].) Management must bargain if it assigns tasks that are not reasonably understood to be among existing duties or increases “the quantity of work.” (Davis, supra, PERB Decision No. 393, p. 26 & fn. 11.) (pp. 11-20.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02159: SCOPE OF REPRESENTATION; Workloads
An employer must bargain if it materially alters employees’ workload. (County of Santa Clara (2022) PERB Decision No. 2820-M, pp. 5-6 & fn. 4; Cerritos Community College District (2022) PERB Decision No. 2819, p. 30; County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) A change in workload may be found even when the nature of duties assigned does not materially change—for instance, if an employer assigns fewer employees to perform a steady amount of work. (See, e.g., Fullerton Union High School District (1978) PERB Decision No. 53, pp. 7-8.) The converse can also be true: an employer can impose materially new duties without increasing overall workload, as alleged in County of Santa Clara, supra, PERB Decision No. 2820-M. However, these two types of material changes often occur in concert with one another and establishing one can aid in proving the other. For instance, if new duties increase employee workload, that tends to show that the new duties may not have been reasonably comprehended within existing duties. Physicians who work in state prisons were reasonable in understanding that California Correctional Health Care Service expected them to provide patients experiencing substance use disorder with materially new services beyond prescribing medication, including behavioral modification. (pp. 11-20.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02071: SCOPE OF REPRESENTATION; Job Duties
Davis Joint Unified School District (1984) PERB Decision No. 393 (Davis) does not establish a broad management right to change job duties. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 31 [Davis cannot be broadly construed].) Management must bargain if it assigns tasks that are not reasonably understood to be among existing duties or increases “the quantity of work.” (Davis, supra, PERB Decision No. 393, p. 26 & fn. 11.) (p. 19.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02070: SCOPE OF REPRESENTATION; Job Descriptions
An employer must bargain before materially changing a job qualification unless the change merely complies with an externally imposed change in law. (County of Sacramento (2020) PERB Decision No. 2745-M, p. 17.) While a newly-required qualification is subject to bargaining if it is material and not required by an external change in law, it also may constitute evidence that the employer has materially changed duties. In other words, if an employer requires a new qualification while altering duties, the new qualification tends to show that the new duties were not reasonably comprehended within existing duties. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6; Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp.11-12.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02071: SCOPE OF REPRESENTATION; Job Duties
A charging party can establish that new job duties materially deviated from the status quo by showing that new duties or assignments are not “reasonably comprehended” within employees’ prior duties or assignments. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) “Reasonably comprehended” is an objective standard that refers to what a reasonable employee would comprehend based on all relevant circumstances, including, but not limited to, past practice, training, and job descriptions. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description does not overcome contrary past practice, PERB interprets job descriptions in the context of employees’ overall role].) For instance, the Board has found new duties were not reasonably comprehended within an existing assignment when they required employees to obtain additional credentialing. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 6, citing Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
1000.02069: SCOPE OF REPRESENTATION; Job Assignment
A charging party can establish that new job duties materially deviated from the status quo by showing that new duties or assignments are not “reasonably comprehended” within employees’ prior duties or assignments. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) “Reasonably comprehended” is an objective standard that refers to what a reasonable employee would comprehend based on all relevant circumstances, including, but not limited to, past practice, training, and job descriptions. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description does not overcome contrary past practice, PERB interprets job descriptions in the context of employees’ overall role].) For instance, the Board has found new duties were not reasonably comprehended within an existing assignment when they required employees to obtain additional credentialing. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 6, citing Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp. 10-20.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
602.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Unwritten Past Practice
To determine if an employer materially changed terms and conditions of employment, PERB compares the new conditions (including duties, qualifications, and workload) with the status quo and determines if a reasonable employee would find the changes to be material. Past practice is relevant in determining whether reasonable primary care physicians (PCP) who work in state prisons would view their employer’s new requirements as materially changing their qualifications, duties, and/or workload. PCPs’ job descriptions had limited utility given that they do not attempt to detail which medical conditions PCPs must treat on their own versus which conditions they may refer to specialists in whole or in part. (pp. 12-20.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
602.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A change in policy occurs on the date the employer makes a firm decision from which it never wavers, even if the decision does not take effect immediately or never takes effect. (City of Milpitas (2015) PERB Decision No. 2443-M, p. 15.) (p. 13.) more or view all topics or full text.		 47 23 06/29/22
2823S State of California (California Correctional Health Care Services)
602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy
To determine if an employer materially changed terms and conditions of employment, PERB compares the new conditions (including duties, qualifications, and workload) with the status quo and determines if a reasonable employee would find the changes to be material. (p. 12.) more or view all topics or full text.		 47 23 06/29/22