Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2783H	Regents of the University of California 1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request. more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo Although the unions presented no evidence that any employee suffered a loss as a result of noncompliance with the employer’s vaccination policy, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the unions will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss as a result of the vaccination policy, such as discipline, unpaid leave, and out-of-pocket payment of vaccine costs. (p. 32.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision. more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General Although the unions presented no evidence that any employee suffered a loss as a result of noncompliance with the employer’s vaccination policy, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the unions will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss as a result of the vaccination policy, such as discipline, unpaid leave, and out-of-pocket payment of vaccine costs. (p. 32.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision. more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General Bargaining order not appropriate when influenza vaccination policy expired by its own terms at the end of the 2020-2021 flu season. (p. 32.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision. more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay Although a witness did not testify at the hearing, the statements attributed to him are not hearsay because they were made during negotiations while he was acting in his role as Executive Director of Systemwide Labor Relations, and therefore constitute party admissions, a recognized exception to the hearsay rule. Because his statements fall under an exception to the hearsay rule, they would be admissible in a civil action and thus can form the evidentiary basis for a factual finding. (p. 16.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1000.02163: SCOPE OF REPRESENTATION; Work Rules The University’s influenza vaccination mandate was different from an influenza prevention policy requiring nurses who declined to get an immunization or take antiviral medication to wear masks while on duty, which was a work rule that affected nurses’ working conditions and thus was within the scope of representation. The University’s influenza vaccination mandate is more than a mere work rule because it applies to all individuals who work, live, or study on University premises. (p. 26.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1000.02077: SCOPE OF REPRESENTATION; Leaves Placing an employee on unpaid leave has a direct effect on wages, an enumerated subject within the scope of representation. (p. 30.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1000.02029: SCOPE OF REPRESENTATION; Disciplinary Action When a non-negotiable decision has foreseeable effects on discipline, such as creating a new type of evidence that may be used to support discipline or a new ground for discipline, those effects are negotiable. (p. 30.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated The University issued the mandatory influenza vaccination policy because of grave concerns by its experts (as well as the California Department of Public Health and the Centers for Disease Control and Prevention) that the 2020-2021 flu season, combined with the ongoing COVID-19 global pandemic, had the potential to overwhelm its hospitals due to the simultaneous spread of both respiratory illnesses. The implementation of the University’s influenza vaccination policy was a direct response to a potential confluence of the COVID-19 global pandemic and an outbreak of the influenza virus causing catastrophic outcomes and needless loss of life. This potential catastrophe affected not just University employees, but also its students and the general public who may have needed to use University hospitals. Under these unprecedented circumstances, requiring the University to negotiate the decision to require influenza vaccination would abridge its right to determine public health policy during a pandemic. (p. 25.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 608.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Management-Rights Clause; Management Prerogative Because the University relied on the management rights clause in its contracts with Charging Parties when making the decision to require influenza vaccinations, employees could be subject to similar vaccination mandates in the future. (p. 21.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain The University’s refusal to bargain over alternatives to discipline or unpaid leave for employees who did not comply with mandatory influenza vaccination policy was a failure to meet and confer in good faith prior to implementation. (pp. 29-30.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 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 The University’s refusal to bargain over alternatives to discipline or unpaid leave for employees who did not comply with mandatory influenza vaccination policy was a failure to meet and confer in good faith prior to implementation. (pp. 29-30.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 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 The Executive Order changed the written policy for a subset of the medical center employees, and also created a new policy for employees who work at locations other than the medical centers, as they were not previously required to receive an influenza vaccination. (p. 21.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Adequate Prior Notice and Opportunity to Bargain The University issued the Executive Order mandating influenza vaccinations on July 31, but did not provide notice of the change to Charging Parties until August 7. The University clearly did not give Charging Parties advance notice or an opportunity to meet and confer before reaching a firm decision. (p. 22.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General The University issued the mandatory influenza vaccination policy because of grave concerns by its experts (as well as the California Department of Public Health and the Centers for Disease Control and Prevention) that the 2020-2021 flu season, combined with the ongoing COVID-19 global pandemic, had the potential to overwhelm its hospitals due to the simultaneous spread of both respiratory illnesses. The implementation of the University’s influenza vaccination policy was a direct response to a potential confluence of the COVID-19 global pandemic and an outbreak of the influenza virus causing catastrophic outcomes and needless loss of life. This potential catastrophe affected not just University employees, but also its students and the general public who may have needed to use University hospitals. Under these unprecedented circumstances, requiring the University to negotiate the decision to require influenza vaccination would abridge its right to determine public health policy during a pandemic. (p. 25.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining. The subject of influenza vaccinations is not one that divides people along management-union lines, but rather splits people—students, faculty, and staff—into those who can and will get vaccinated versus those who cannot or will not get vaccinated. Thus, the decision to require influenza vaccinations in response to a public health hazard that affects not just employees, but also students and the general population, was not amenable to collective bargaining. more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Under HEERA, “[a] subject is within the scope of representation” “as a ‘term or condition of employment’” “if: (1) it involves the employment relationship, (2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer’s mission.” (p. 23.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects Before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation. Once a firm non-negotiable decision is made, the employer must “provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would be required to do before making a decision on a mandatory subject of bargaining.” (p. 28.) more or view all topics or full text.	46	38	07/26/21
2783H	Regents of the University of California 601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining The decision to require influenza vaccinations in response to a public health hazard that affects not just employees, but also students and the general population, was not amenable to collective bargaining. (p. 24.) more or view all topics or full text.	46	38	07/26/21
2788M	City of Pasadena 1309.14000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Splitting of Classifications While there is no bright line rule against splitting classifications where other factors warrant it, PERB generally disfavors splitting a single classification across multiple units when the employees within the same classification perform the same work under virtually identical conditions of employment. (Oakland Unified School District (2016) PERB Decision No. 2509, at pp. 19-20.) The City reasonably found that this factor cut against granting the severance petition. If the severance request was granted, two classifications would be divided among two bargaining units, the two classifications’ job duties are common across all City departments, and there is no distinction in their work, whether they are assigned to the Police Department or any other City department. more or view all topics or full text.	46	61	09/01/21
2788M	City of Pasadena 1309.13000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Supervisors Where petition did not seek a new stand-alone unit consisting solely of 12 unrepresented Police Supervisors, PERB declined to consider what unit placements might be reasonable for those employees, particularly as that question might turn on whether a union representing an existing City bargaining unit is willing to have the City add the Police Supervisors to such an existing unit. (Santa Clara Valley Water District, supra, PERB Decision No. 2531-M, p. 17.) more or view all topics or full text.	46	61	09/01/21
2788M	City of Pasadena 1309.13000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Supervisors MMBA section 3507.5 explicitly permits an employer to adopt reasonable rules for determining which employees are “managerial” or “confidential,” and an employer may consider such determinations when configuring bargaining units. (City of Palmdale (2011) PERB Decision No. 2203-M, p. 6, fn. 7.) In contrast, while an employer may have reason to label certain employees as “supervisors” for operational reasons, that label has no independent legal significance under the MMBA. (Ibid.) An MMBA employer may not categorically require that all employees with supervisory duties be excluded from any bargaining unit that contains non supervisors; rather, supervisory duties at most may be relevant to unit determination solely as one of numerous community of interest factors. (Id. at p. 14.) more or view all topics or full text.	46	61	09/01/21