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DecisionDescriptionPERC Vol.PERC IndexDate
2544Ea Bellflower Unified School District
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
A cease-and-desist order draws its meaning from the specific violation found in the context of the entire decision. (William S. Hart Union High School District (2018) PERB Decision No. 2595, p. 13.) The cease-and-desist order disallowed renewed unilateral subcontracting without an adequate defense. more or view all topics or full text.		 46 143 03/24/22
2544Ea Bellflower Unified School District
1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof
Within a reasonable period post-termination, terminated employees have a duty to mitigate losses by taking steps consistent with the inclination to find new work and be self-supporting. (County of Lassen (2018) PERB Decision No. 2612-M, pp. 8-9.) A respondent that violated the law has the burden of establishing that an employee did not make a good faith effort to mitigate damages. (Id. at p. 8.) First, the respondent must show that: “(1) a number of positions were available that are substantially equivalent to the one previously held by the claimant; (2) the claimant would have qualified for one of these positions; and (3) the claimant did not apply for these positions.” (Fresno County Office of Education (1996) PERB Decision No. 1171, adopting proposed decision at p. 4.) If the respondent establishes each of these elements, the employee may still satisfy the duty to mitigate by showing other reasonable efforts via testimony or other reliable evidence of good faith job hunting efforts. (Id., adopting proposed decision at pp. 4-5.) As with other issues causing uncertainty in the amount of damages owed, PERB resolves uncertainty about mitigation against the wrongdoer. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 27.) Resolving whether an employee made reasonable efforts does not turn on any single category of potential job applications, much less any one application. more or view all topics or full text.		 46 143 03/24/22
2544E Bellflower Unified School District
1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof
A finding by the Board that an unfair labor practice was committed is presumptive proof that at least some backpay is owed. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10.) Notwithstanding this presumption, in compliance proceedings the charging party bears the burden of proving damages caused by the respondent’s unfair practices. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 56.) The charging party, however, need not prove damages with precision. Rather, make-whole relief usually involves predictions and estimates, and thus an approximation of actual damages may be sufficient to meet the charging party’s burden. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 14 (Pasadena).) PERB resolves uncertainties as to the amount owed against the wrongdoer. (Id. at p. 27; City of Culver City (2020) PERB Decision No. 2731-M, p. 26.) Moreover, provided that an estimate has a rational basis, and is not so excessive as to be punitive, it appropriately serves both a compensatory and deterrent function. (Pasadena, supra, PERB Order No. Ad-406-M, p. 13.) more or view all topics or full text.		 42 70 12/15/17
2544Ea Bellflower Unified School District
1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof
The respondent has the burden of proving its compliance with each part of the Board’s order. more or view all topics or full text.		 46 143 03/24/22
2544Ea Bellflower Unified School District
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
Records such as Form W-2s, Form 1040s, and other wage and income records are typically sufficient evidence of employee losses, mitigation efforts, and interim earnings. more or view all topics or full text.		 46 143 03/24/22
2544Ea Bellflower Unified School District
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
Compliance proceedings should generally not lead to protracted litigation and should be commensurate to the scope of relief at issue. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 21-22.) more or view all topics or full text.		 46 143 03/24/22
2544Ea Bellflower Unified School District
1107.02000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Weight Given to ALJ's Proposed Decision: Findings, Conclusions, Credibility Resolutions
Although the Board reviews exceptions to a proposed decision de novo, to the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, we defer to such assessments unless the record warrants overturning them. (County of Santa Clara (2019) PERB Decision No. 2629-M, pp. 8-9.) If a proposed decision adequately addressed issues raised by certain exceptions, the Board need not further analyze those exceptions. (Id. at p. 6.) The Board also need not address alleged errors that have no material impact on the outcome. (Ibid.) more or view all topics or full text.		 46 143 03/24/22
2544Ea Bellflower Unified School District
101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent
Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, we consider federal precedent for its potential persuasive value. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner, et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10.) more or view all topics or full text.		 46 143 03/24/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
In a technical refusal to bargain case, PERB can issue litigation sanctions if any party takes a frivolous position in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11; see also Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4.) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
Respondent employer committed a technical refusal to bargain in order to achieve a unit modification, in addition to obtaining appellate review of underlying unit determination. PERB found that the Respondents’ shifting positions and tactics, combined with Respondents’ failure to file a unit modification petition as required by PERB precedent, merit make-whole relief outside of the charging party union’s costs of litigating this case. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
In a technical refusal to bargain case, even when there is no cause for litigation sanctions, if an employer pursues an unsuccessful technical refusal over a unit determination, the charging party union may be entitled to reimbursement of its increased costs outside of litigating the technical refusal charge, which may include increased costs for organizing, bargaining, lost dues, or legal costs beyond litigating the charge itself. A charging party is more likely to obtain such relief when a technical refusal to bargain is based on a unit determination issue rather than an election integrity issue. Even when the underlying issue involves a unit determination, PERB has no blanket rule requiring make whole relief in a technical-refusal-to-bargain case. Rather, we consider whether the totality of the respondent’s conduct has disadvantaged the charging party to such a degree that make-whole relief is necessary to effectuate the governing statute’s purposes, such as allowing fair representation and balanced collective bargaining. (See J.R. Norton v. Agricultural Labor Relations Bd., 26 Cal.3d at pp. 39-40 [because remedies must “effectuate the policies of the Act,” make-whole relief in a technical-refusal-to-bargain case turns, most fundamentally, on “factors peculiar to labor relations”].) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In a technical refusal to bargain case, attorneys fees were not awarded because the employer engaged in the technical refusal to bargain to obtain judicial review of PERB’s unit determination and argued in favor of changing existing law in a manner that did not violate PERB’s litigation sanctions standard. (p. 31.) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.05000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Extension of Certification
Following a technical refusal to bargain during the initial 12-month certification period, the Board extended the certification bar to at least 12 months from commencement of good faith bargaining, subject to extension if the employer is found to have engaged in additional unfair labor practices. (p. 30) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General
Following a technical refusal to bargain, an appropriate remedial order includes ordering the employer to meet and confer with the exclusive representative upon request. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent
PERB is not bound by NLRB precedent. EERA generally provides greater protection to representational rights than the NLRA. PERB may refer to NLRB precedent interpreting the NLRA to the extent we find it persuasive and consistent with the language and purposes of EERA. (Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 28-29.) Moreover, when PERB does find federal authority persuasive on a particular issue, PERB is not automatically bound by subsequent developments in federal law on that point because the determinative issue is whether the cases are consistent with the language and purposes of EERA. (Ibid.) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1300.03000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; Amended Certification, Petition for
An amendment in certification changes only the name of the employer or union—it does not change the contours of the bargaining units. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1300.03000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; Amended Certification, Petition for
Based upon evidence contained in the parties’ stipulated record, the union requested an amendment of certification in its post-hearing brief. , Respondents had the opportunity to respond or object to the request, and did so in a post-hearing reply brief, meeting the procedural requirements to amend certification. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1300.03000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; Amended Certification, Petition for
PERB Regulation 32761, subdivision (a) provides that “[a]n employee organization may file . . . a request to amend its certification or recognition in the event of a reorganization, amalgamation, affiliation or transfer of jurisdiction, or in the event of a change in the name or jurisdiction of the employer.” Such a request is generally made by the requesting party sending PERB a letter that affords the employer the opportunity to respond or object. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1310.02000: REPRESENTATION ISSUES; UNIT MODIFICATION; Change in Circumstances
A unit modification may be appropriate upon a party’s demonstration that it is warranted by changed circumstances. (p. 24.) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1310.06000: REPRESENTATION ISSUES; UNIT MODIFICATION; Unfair Practice and Unit Modification
A unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1310.01000: REPRESENTATION ISSUES; UNIT MODIFICATION; In General
PERB regulations and long-established precedent provide that a unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain
Employers cannot assert changed circumstances as a defense to a refusal to bargain. To the extent an employer alleges that changed circumstances render a unit inappropriate, they cannot simply refuse to bargain – they must instead file a unit modification petition. PERB regulations and long-established precedent provide that a unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances. (pp. 17-18.) more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain
Because a respondent in a technical refusal to bargain case should admit it is refusing to comply with the underlying representation order, PERB normally should expedite judicial review by granting judgment on the pleadings at all levels of PERB, treating the prior representation decision as binding with respect to all issues that were, or could have been litigated in the representation proceeding. more or view all topics or full text.		 46 131 02/28/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain
While EERA section 3542, subdivision (a)(2) permits a party to obtain appellate review of a unit determination by engaging in a technical refusal to bargain, a party’s right to do so is limited in several respects. A party engaged in a technical refusal to bargain must rely on evidence already in the administrative record of the unit determination, because the prior representation decision is treated as binding with respect to all issues that were, or could have been litigated in the representation proceeding. A party may not collaterally attack PERB’s determination using evidence that it could have raised in the unit determination proceeding, nor may it use the technical refusal as an attempt to modify a unit while circumventing PERB’s mandatory unit modification procedure. more or view all topics or full text.		 46 131 02/28/22
2804E South Orange County Community College District
1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal
Charging Party did not appeal Office of the General Counsel’s (OGC) dismissal of the alleged Ralph M. Brown Act violation for lack of jurisdiction, nor the dismissal of the allegations that the school district retaliated against Charging Party by placing her on administrative leave, issuing her a Notice of Intent to Discipline, and placing her on an unpaid suspension, all of which OGC found to be untimely. Accordingly, those allegations were not before the Board on appeal. (p. 2, fn. 2.) Because the amended charge alleged facts establishing three recognized nexus factors, the Board reversed the dismissal of the allegation that the school district terminated Charging Party’s employment because of her EERA-protected activity and remanded the matter to OGC for issuance of a complaint on that allegation. Although the Board found the charge allegations established three particular nexus factors, Charging Party remained free to introduce all relevant and admissible evidence of nexus at the formal hearing. (p. 17, fn. 7.) more or view all topics or full text.		 46 111 01/28/22