Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2804E	South Orange County Community College District 1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal The Board reviews the Office of the General Counsel’s (OGC) dismissal of a charge de novo, applying the same legal standard OGC applied to the allegations in the charge. At this stage of litigation, “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.” The Board thus assumes the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. Thus, at this stage of the case the Board generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. Rather, if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. Where a material factual dispute turns on the respondent’s state of mind, the Board takes into account that motive is generally within the respondent’s own knowledge and that there is little opportunity for pre-hearing discovery, and the Board accordingly imposes on the charging party a relatively low burden to allege facts tending to show the requisite state of mind. (p. 9.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.13000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Unusually Harsh Treatment The Board held that the allegation that Charging Party did not receive progressive discipline before being terminated implicates the disproportionate punishment nexus factor. In considering whether the punishment appears disproportionate to the alleged misconduct, PERB does not determine whether the employer had just cause to impose the particular punishment. Rather, the inquiry is whether the employer’s choice to impose the particular punishment instead of a lesser punishment indicates a retaliatory motive. Thus, in certain contexts, an employer’s decision to terminate an employee rather than pursue progressive discipline may indicate the employer wished to rid itself of a known union supporter. In such cases, the decision to terminate often is intertwined with an inadequate investigation of the employee’s alleged misconduct. (p. 14.) The Board noted that despite the Skelly officer dismissing two-thirds of the charges against Charging Party, the school district did not reduce the proposed discipline but instead proceeded to terminate Charging Party based on the remaining 11 charges. Although we cannot say based upon the allegations in the amended charge that termination was a disproportionate punishment for the remaining 11 charges, the school district’s persistence in terminating Charging Party’s employment despite the weakness of a large portion of its charges suggests that termination was a predetermined outcome to rid the school district of a known union activist. The Board found that this was another instance of inadequate investigation and disproportionate punishment nexus factors. (p. 16.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats The Board found that the amended charge alleged facts showing the school district had animosity toward Charging Party’s EERA-protected activities. The day before the meeting at which the school district served Charging Party with the Notice of Intent to Discipline, Charging Party’s supervisor told Charging Party the meeting was about her unauthorized union release time. These statements show that Charging Party’s supervisor disapproved of Charging Party’s union activities, thus supporting an inference that her animus toward those activities played a role in Charging Party’s termination. (p. 17.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation The Board found that the allegations in the amended charge established both the inadequate investigation and disproportionate punishment nexus factors. The school district’s one-sided investigation of Charging Party’s alleged time theft consisted of comparing Charging Party’s texts saying she would be late or absent with her entries in the school district’s timekeeping system. Based on this investigation, the school district proposed to terminate Charging Party for 36 alleged instances of time theft. The school district never interviewed Charging Party about any of these instances; she first became aware of the allegations when she was served with the Notice of Intent to Discipline. Then, based on Charging Party’s presentation at her Skelly hearing, the Skelly officer found 25 of the 36 alleged instances were unfounded. The Board found that this suggests that if the school district adequately investigated to learn the true facts, including interviewing Charging Party, it would have discovered it had no basis for 25 of the charges. The Board found that the school district’s failure to undertake this additional investigation supports an inference that it was not interested in obtaining evidence that might conflict with its desired result. (pp. 14-15.) The Board noted that despite the Skelly officer dismissing two-thirds of the charges against Charging Party, the school district did not reduce the proposed discipline but instead proceeded to terminate Charging Party based on the remaining 11 charges. Although we cannot say based upon the allegations in the amended charge that termination was a disproportionate punishment for the remaining 11 charges, the school district’s persistence in terminating Charging Party’s employment despite the weakness of a large portion of its charges suggests that termination was a predetermined outcome to rid the school district of a known union activist. The Board found that this was another instance of inadequate investigation and disproportionate punishment nexus factors. (p. 16.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee The Board found that the amended charge alleged facts showing the school district had animosity toward Charging Party’s EERA-protected activities. Charging Party’s supervisor denied her request for leave to attend the union’s annual conference. Several weeks later, Charging Party’s supervisor complained to the school district about the number of union meetings Charging Party attended. (p. 16.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. (p. 12.) The allegations in the amended charge establish sufficiently close timing to support an inference of unlawful motivation for Charging Party’s termination. At the time the school district decided to terminate Charging Party, she was serving as the union chapter vice president and a member of the union’s bargaining team. The initial Notice of Intent to Discipline informing Charging Party of the school district’s intent to terminate her employment was served approximately one month after Charging Party raised issues about a proposed contractual equity clause. Additionally, in the six months preceding the Notice, Charging Party had requested information from the school district about a new salary schedule containing a lower hourly rate, raised concerns about family care leave and other leaves and about the hourly rate calculation, and requested contractual the union release time to attend the union annual conference. (pp. 12-13.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures The Office of the General Counsel found that neither the allegation that Charging Party did not receive progressive discipline nor the allegation that acting vice chancellor of human resources lied about the policy allowing the school district to place Charging Party on unpaid administrative leave pending her due process hearing showed a departure from established procedures. Given the lack of allegations in the amended charge as to the school district’s existing disciplinary or administrative leave procedures, the Board agreed that Charging Party failed to allege a departure from established procedures. (p. 13.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 503.07000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Discharge; Layoffs; Constructive Discharge; Rejection During Probation The Board held that the Office of the General Counsel correctly found that the school district’s termination of Charging Party’s employment constituted an adverse action. (p. 11.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 502.01000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General The Board held that the amended charge sufficiently alleged that Charging Party participated in EERA-protected activity. Specifically, at the time of her termination, Charging Party was the union chapter vice president and a member of the union’s negotiating team. Charging Party also engaged in EERA-protected activity when she: (1) requested information from the school district about a new salary schedule containing a lower hourly rate, and raised concerns about family care leave and other leaves; (2) requested contractual leave to attend the union annual conference; (3) raised issues about the hourly rate calculation with the school district; and (4) raised concerns with the school district over a proposed equity clause in the union contract. (p. 10.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 501.03000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Lack of Knowledge of Protected Activity Charging Party’s supervisor knew that she used union release time and requested leave to attend the union’s annual conference. Charging Party’s supervisor also complained about Charging Party’s attendance at union meetings. The acting vice chancellor of human resources knew of Charging Party’s request for leave to attend the union’s annual conference and of Charging Party’s concerns about the proposed contractual equity clause. The Board inferred that the acting vice chancellor of human resources was aware of Charging Party’s information request and concerns over leave, and her concerns over the hourly rate calculation. The acting vice chancellor of human resources issued the Notice of Intent to Discipline informing Charging Party of the charges against her and the school district’s intent to terminate her employment. The Board held that the amended charge thus sufficiently alleged that at least one person involved in Charging Party’s termination knew of her protected activities. (p. 11.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case To establish a prima facie case of retaliation sufficient to support issuance of a complaint, a charging party must allege facts showing that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more of the employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (p. 9.) more or view all topics or full text.	46	111	01/28/22
2804E	South Orange County Community College District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards Charging Party alleges she was prevented from returning to campus for union meetings after she was issued a Notice of Intent to Discipline and escorted off campus. The Board held this argument failed for two reasons. First, a directive for an employee not to communicate with her union while on suspension would unlawfully interfere with the employee’s EERA-protected rights. But the amended charge did not allege, nor did the filings contain, the terms of Charging Party’s suspension, so there were no alleged facts showing such a prohibition. Second, even if Charging Party could not attend union meetings on campus, the amended charge did not allege facts showing the school district prevented Charging Party from communicating with union representatives by other means, such as telephone, e-mail, or meeting off-campus. And to the extent Charging Party claimed her suspension precluded her from addressing the school district board of trustees about a proposed contractual equity clause, the amended charge alleged no facts showing that the terms of her suspension barred her from attending and participating in what presumably was a meeting open to the public. For these reasons, the Board affirmed the Office of the General Counsel’s dismissal of the interference allegation based on Charging Party’s suspension. (p. 18.) more or view all topics or full text.	46	111	01/28/22
2797E	Carpinteria Unified School 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	86	11/16/21
2797E	Carpinteria Unified School District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications To the extent the requested records include notes covering internal union meetings or caucuses in which no District representatives were present, they are subject to a qualified protection. In Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113 (Colton), PERB found that a bargaining party generally need not disclose its internal strategy discussions regarding negotiations or grievance handling. (Id. at p. 6, citing Berbiglia, Inc. (1977) 233 NLRB 1476, 1495; see also County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9; Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 4.) Pursuant to this qualified protection, we balance the negotiating party’s interest in maintaining confidentiality versus the competing interests in disclosure, if any. (Colton, supra, PERB Order No. Ad-113, p. 8.) CAUSE’s internal notes from bargaining sessions fall under this protection, particularly as the District’s tenuous arguments for relevance weigh against disclosure. more or view all topics or full text.	46	86	11/16/21
2797E	Carpinteria Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 40-41.) To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 33 (Palo Verde).) As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (See Novato Unified School District (1982) PERB Decision No. 210, p. 14 [“[a]fter all the evidence is in, it is a question of the sufficiency of the proof proffered by the various parties”].) more or view all topics or full text.	46	86	11/16/21
2797E	Carpinteria Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee “Where the employer’s words or actions reveal that the adverse action was taken in response to the employee’s protected activity, such conduct serves as direct evidence of unlawful motive.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 26.) The Board found direct evidence of unlawful motive because the disciplinary notices were explicitly based in part on protected activity. more or view all topics or full text.	46	86	11/16/21
2797E	Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Conduct included in a disciplinary notice was protected by EERA because Union president was acting in his capacity as Union president in representing bargaining unit members in their relations with the District. The District failed to meet its burden of showing any behavior that was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference [in the workplace]” as to lose statutory protection. (See Pomona Unified School District (2000) PERB Decision No. 1375, p. 16 [finding a letter that used “forceful but not abusive” language to describe the author’s displeasure with how school administration had represented her employment status to third parties retained its statutory protection because it was the type of conduct “that labor relations personnel are likely to encounter at least occasionally in the routine course of business”].) more or view all topics or full text.	46	86	11/16/21
2797E	Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee conduct and speech related to a labor and employment dispute is protected unless it is so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to substantially disrupt or materially interfere with employer operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13 (Rancho Santiago).) The Rancho Santiago standard encompasses two different tests. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 19, fn. 9.) The first test, which applies when an employer or union claims that an employee has leveled a false criticism, is largely content-based: the speech only loses protection if it was maliciously false. (Ibid.) The second test is conduct-based and analyzes whether the employee engaged in face-to-face communications with a manager or supervisor in a manner that substantially disrupts operations. (Ibid.) This fact-intensive inquiry generally considers, at least: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was in any way provoked by the employer’s unfair labor practice. (Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 11.) more or view all topics or full text.	46	86	11/16/21
2797E	Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech EERA generally protects union and employee speech related to legitimate labor and employment concerns. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15.) For instance, an employee is typically protected in criticizing management, working conditions, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Because labor and employment disputes tend to engender ill feelings and strong responses, the parties are afforded wide latitude to engage in “uninhibited robust, and wide-open debate” during those disputes. (City of Oakland (2014) PERB Decision No. 2387-M, p. 23.) Public employees’ right to engage in concerted activities therefore permits them some leeway for “impulsive” and “intemperate” behavior, including moments of “animal exuberance.” (Ibid.) more or view all topics or full text.	46	86	11/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief Without an injunction, it is likely that the rival nonexclusive representative’s organizing efforts will be further irreparably harmed and there exists a probability that the purposes of EERA will be frustrated because the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless by the school district’s continuing conduct. An injunction thus is necessary to preserve PERB’s ability, if it finds the school district committed the alleged unfair practices, to restore the situation as nearly as possible to what it would have been had the school district not committed the violations. (pp. 40-41.) more or view all topics or full text.	46	93	12/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief Diminution of support for the rival nonexclusive representative resulting from the school district’s alleged unfair practices is not merely speculative or threatened; the declarations submitted in support of the request for injunctive relief show that loss of support had already occurred because of the school district’s current course of action. Several teachers who supported the rival nonexclusive representative prior to its public announcement have since revoked their support. Some teachers did so out of fear that the school district would know they supported the rival nonexclusive representative, and another because he received a position with the existing nonexclusive representative. Other teachers remain confused about the legal status of the nonexclusive representatives, due in part to the school district’s and the existing nonexclusive representative’s statements about the existing nonexclusive representative’s role in representing teachers. And various teachers expressed their concern over school district retaliation if it discovers their support for the rival nonexclusive representative. This information suggests that the school district’s conduct has already negatively impacted the rival nonexclusive representative’s organizing campaign and that it will continue to be negatively impacted if the school district is allowed to continue on the same course while PERB adjudicates the unfair practice charges. For all these reasons, it was necessary to obtain an affirmative order for the school district to place the rival nonexclusive representative on equal footing with the existing nonexclusive representative while the rival pursues its organizing campaign during the pendency of PERB’s adjudication of the unfair practice charges. Such an affirmative order is appropriate to prevent irreparable harm to the rival union by the defection of its supporters and to prevent the existing union’s entrenchment. Injunctive relief was also necessary here because it is typically not possible to provide employees retroactively the monetary and nonmonetary benefits they might have achieved had they been exclusively represented. (pp. 39-40.) more or view all topics or full text.	46	93	12/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief Injunctive relief is just and proper when an employer is using a company union to hinder an outside union’s efforts to organize its employees. Here, injunctive relief was necessary to prevent the school district’s ongoing unfair practices from eroding support for the charging party nonexclusive representative while PERB adjudicates the underlying unfair practice charges. Since 1977 the school district has treated the existing nonexclusive representative as the representative of its teachers. The school district negotiates wage and benefit changes with the existing nonexclusive representative, and grants it preferential access to meetings, school sites, and the school district’s e-mail system—access it has not granted to the rival nonexclusive representative. The school district also fully funds the existing nonexclusive representative’s operations, pays stipends to its representatives, and provides office space. The existing nonexclusive representative is deeply entrenched as the school district’s longstanding preferred employee organization. Against this backdrop, the school district’s recent communications suggest that the existing nonexclusive representative would be a better representative because of its existing close relationship with school district administration, and explicitly state the school district remains opposed to true collective bargaining. Without an injunction, the school district could continue to use the existing nonexclusive representative as a cudgel to crush the rival nonexclusive representative’s organizing efforts. If those efforts were extinguished before PERB could resolve the underlying unfair practice charges, any remedy PERB could order at the conclusion of its adjudication process would be meaningless. (pp. 38-39.) Thus, injunctive relief was appropriate. more or view all topics or full text.	46	93	12/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief To meet the second prong of the Modesto test, PERB must demonstrate to the court that injunctive relief is just and proper. Although interim injunctive relief is an extraordinary remedy, it may be used whenever an employer or union has committed unfair labor practices which, under the circumstances, render any final order of the Board meaningless or so devoid of force that the remedial purposes of EERA will be frustrated. The just and proper standard is met where there exists a probability that the purposes of EERA will be frustrated unless temporary relief is granted or the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless. (p. 35.) more or view all topics or full text.	46	93	12/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief A rival nonexclusive representative established reasonable cause to believe that the school district violated EERA section 3543.5, subdivision (d) by: (1) dominating or interfering with the administration of the existing nonexclusive representative; (2) contributing financial or other support to the existing nonexclusive representative; and (3) violating its duty of strict neutrality by favoring the existing nonexclusive representative over the rival organization. Also there was reasonable cause to believe that the school district communicated with teachers in a way that deterred or discouraged support for the rival nonexclusive representative in violation of PEDD. (p. 17.) more or view all topics or full text.	46	93	12/16/21
I063E	Clovis Unified School District 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief PERB cannot seek an injunction unless it finds (1) reasonable cause to believe an unfair practice has been or will be committed; and (2) that injunctive relief is just and proper. (p. 16.) more or view all topics or full text.	46	93	12/16/21