Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2795E	Alliance Marc & Eva Stern Math & Science High School et al. 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards Rather than leaving it to anti-union employees to campaign against unionization as PEDD contemplates, the charter schools repeatedly and broadly circulated their own arguments against unionization. Thus, the Board found that based on both content and context, the e-mails tended to influence whether or not employees supported the union, thereby establishing a prima face case. (p. 69.) more or view all topics or full text.	46	82	11/03/21
2795E	Alliance Marc & Eva Stern Math & Science High School et al. 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards PEDD bars all employer communications and conduct tending to influence certain employee decisions—including the decision whether to unionize—unless the employer narrowly tailors its conduct to a business necessity while minimizing the tendency to influence employee free choice as much as possible. The protection is more robust than the pre-existing protection against employer interference, as it prohibits most employer influence even if the employer refrains from threatening reprisals or force, or from promising a benefit. (p. 53.) more or view all topics or full text.	46	82	11/03/21
2795E	Alliance Marc & Eva Stern Math & Science High School et al. 101.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General PERB lacks authority to rule on constitutional issues because the California Constitution prohibits an administrative agency from declaring a statute unconstitutional, and from refusing to enforce a statute on constitutional grounds unless an appellate court has ruled the statute is unconstitutional. (p. 42.) more or view all topics or full text.	46	82	11/03/21
2796E	Bellflower Unified School District 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General PERB’s customary remedy for an employer’s unlawful unilateral change includes directing that the charging party and affected employees be made whole. (Lodi Unified School District (2020) PERB Decision No. 2723, p. 20.) An order that may require the compliance officer to engage in some approximation is preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied.” (Id. at p. 21, fn. 13, citing City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof An order that may require the compliance officer to engage in some approximation is preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied.” (Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13, citing City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings generally should not lead to protracted litigation. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) This principle particularly apt in case where affected teachers will at most be owed 30 minutes of extra pay, plus 7 percent annual interest. With these principles in mind, the Board afforded the compliance officer the discretion to consider any number of methods to expedite compliance. Where the Board directed the compliance officer to resolved in compliance proceedings which teachers more likely than not attended a certain meeting for which they were due compensation, the compliance officer could consider accepting sworn declarations or convening a virtual hearing. Any person who was present at the meeting in question could, depending on the extent of her or his recollection, provide evidence as to who else was present. The Association may subpoena, or the District may agree to produce, any sign-in sheets or other attendance records in the District’s possession. Alternatively, the parties may negotiate to resolve all make-whole relief issues, thereby saving further litigation expenses. more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay While the technical rules of evidence do not apply in a PERB formal hearing, where a party timely objects to evidence based on a meritorious hearsay argument, PERB cannot make a material factual finding based solely on such hearsay evidence. (PERB Reg. 32176.) Union witness’s testimony was not hearsay because she was recounting the statement of a party opponent, while the District’s grievance falls under the official records exception to the hearsay rule. (Bellflower Unified School District (2014) PERB Decision No. 2385, pp. 9-11.) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7). more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7). more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 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 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 language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In these 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.) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 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 There are three primary means of establishing that an employer changed or deviated from the status quo. Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (County of Merced (2020) PERB Decision No. 2740-M, p. 9.) While the first two alternatives require a “reversal of a previous understanding,” the third alternative does not. more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 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 A single deviation from a contract can have a continuing impact rather than merely constituting an “isolated” breach, if the employer has “imposed its own interpretation” on a contractual provision, created a standard not found in the contract, or interpreted the contract in a manner contrary to its intended meaning. (City of Davis (2016) PERB Decision No. 2494-M, p. 20 [explaining the Board’s holdings in three cases involving Regents of the University of California].) Such conduct has a continuing impact to the extent it suggests that a similar scenario may arise in the future and the employer may then take the same approach. (Id. at p. 21; see also Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 9 [single refusal to arbitrate a grievance supported a unilateral change claim because employer asserted the right to act similarly in the future]; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 54, quoting County of Riverside (2003) PERB Decision No. 1577-M, p. 6 [“The failure to properly process even a single grievance has a generalized effect or continuing impact on bargaining unit members’ terms and conditions of employment if ‘the action is based upon the employer’s belief that it had a contractual right to take the action without negotiating with the union.’”]; San Bernardino, supra, PERB Decision No. 2599-M, pp. 7-8 [decision to use GPS to track a single employee had a continuing impact because employer asserted contractual right to do so]; Santa Clara, supra, PERB Decision No. 2431-M, p. 19 [decision not to reimburse single employee for tuition expenses could have continuing impact if it reflected employer’s assertion of incorrect contractual interpretation that could arise again].) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General A contract breach does not constitute an independent EERA violation, and therefore is only actionable at PERB if it would “also constitute an unfair practice.” (EERA, § 3541.5, subd. (b).) A contract breach has a “generalized effect or continuing impact” if either: (1) the breach changes a policy or employment term applicable to future situations; or (2) the employer acts unilaterally based upon an incorrect legal interpretation or insistence on a non-existent legal right that could be relevant to future disputes. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8; see also San Bernardino Community College District (2018) PERB Decision No. 2599, pp. 7-8; City of Davis (2016) PERB Decision No. 2494-M, pp. 20-23; City of Montebello (2016) PERB Decision No. 2491-M, p. 15 [continuing impact or generalized effect found where employer asserts it had a contractual or other right to take the action, essentially asserting a right to repeat the disputed conduct]; County of Santa Clara (2015) PERB Decision No. 2431, p. 19; Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 15 [application of zero tolerance provision of drug testing policy had a generalized effect and continuing impact]; Regents of the University of California (2010) PERB Decision No. 2101-H, p. 25; Hacienda La Puente Unified School District (1997) PERB Decision No. 1186, p. 4 [finding unilateral change because there was “no evidence to suggest” that the employer would in the future refrain from taking similar actions].) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Intent is not necessary in establishing any of the four elements of a prima facie unilateral change case. (City of Montebello (2016) PERB Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M, p. 18 [unilateral changes carry such potential to frustrate negotiations, that they are unlawful “even without evidence of subjective bad faith or malign motive”].) more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit must prove: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. more or view all topics or full text.	46	85	11/08/21
2796E	Bellflower Unified School District 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7). more or view all topics or full text.	46	85	11/08/21
A488E	Los Angeles Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 9.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) In their appeal, the charging party argued that the declarants’ names should be redacted to prevent the employer from retaliating against the declarants, citing PERB Regulation 32125 in support of this contention. But that regulation governs filing confidential information with PERB, such as social security numbers, birthdates, a minor’s identity, and financial account information. The names of potential witnesses in a compliance hearing do not fall under any of those criteria. Also, as identified in subdivision (b), a caveat to redacting sensitive information is that it is “not relevant to resolution of any matter before PERB.” (pp. 9-10.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.) more or view all topics or full text.	46	77	10/12/21
A488E	Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance may be determined based solely on documents submitted to Office of the General Counsel. In some instances, an evidentiary hearing is necessary to resolve disputed factual issues. When it is unclear whether a hearing is necessary, an Order to Show Cause may be used to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. (p. 9.) more or view all topics or full text.	46	77	10/12/21