Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2775M	County of San Joaquin 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right Even California public employers providing sensitive services, such as acute patient care and classified national defense research, must narrowly tailor their access rules to avoid overbroad, unnecessary interference with statutory rights. (UCLA Medical Center, supra, PERB Decision No. 329-H, p. 10; Lawrence Livermore, supra, PERB Decision No. 212-H, pp. 13-14 [rejecting employer’s argument that the presumptive right of access either does not apply or is rebutted by national security requirements].) The Board has previously addressed access rights in workplaces that deal with private information, applying the operative test in a fact-intensive inquiry that carefully considers the sensitive work being performed and the safeguards needed to protect such work while still affording statutory rights to the degree possible. (See, e.g., Riverside, supra, PERB Decision No. 2233-M, p. 9; Lawrence Livermore, supra, PERB Decision No. 212-H, p. 14.) (p. 28.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right Access principles are applied uniformly, irrespective of whether a union’s access charge involves employee representatives, non-employee representatives, or a combination. (p. 27.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right The MMBA affords both employee and non-employee representatives of employee organizations access to areas in which employees work. (County of Tulare (2020) PERB Decision No. 2697-M, p. 18.) A union’s presumptive right of access is subject to reasonable regulation. (Regents of the University of California Lawrence Livermore National Laboratory (1982) PERB Decision No. 212-H, pp. 14-15; State of California (California Department of Corrections) (1980) PERB Decision No. 127-S, p. 6.) It is the employer’s burden to demonstrate that its restriction of a union’s access is reasonable. (Regents of the University of California (2012) PERB Decision No. 2300-H, p. 20, fn. 8.) For an access restriction to be reasonable, the employer must establish two elements: (1) the regulation must be shown to be necessary to the efficient operation of the employer’s business or the safety of its employees and others; and (2) the regulation must be narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. (County of Riverside (2012) PERB Decision No. 2233-M, p. 8 (Riverside); see also Lawrence Livermore, supra, PERB Decision No. 212-H, pp. 13-15 & adopting proposed decision at pp. 51-53; Regents of the University of California, University of California at Los Angeles Medical Center (1983) PERB Decision No. 329-H, pp. 4-6 (UCLA Medical Center).) In other words, the inquiry is “whether the regulations established by the employer are properly related to justifiable concerns about disruption of [the employer’s] mission, and whether the rules are narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights.” (Lawrence Livermore, supra, PERB Decision No. 212-H, p. 15.) (pp. 26-27.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver Answer setting forth Respondent’s affirmative defense that “its actions were reasonable based upon justifiable business reasons” sufficiently pled the defense that its actions were based on the need to maintain privacy or confidentiality of clients’ personally identifiable information. PERB does not strictly construe pleadings. (p. 26.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 401.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; In General; Prima Facie Case. A prima facie case of interference is established when a charging party shows the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by the MMBA. (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 42 (Petaluma); see also Carlsbad Unified School District (1979) PERB Decision No. 89, pp. 10-11.) No showing of unlawful motive, purpose, or intent is required. (Petaluma, supra, PERB Decision No. 2485, p. 42.) Once a prima facie case is established, the burden shifts to the employer. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 23 (judicial review pending); Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, pp. 18-19.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (County of San Joaquin, supra, PERB Decision No. 2761-M, p. 23; Contra Costa County Fire Protection District, supra, PERB Decision No. 2632-M, p. 22.) For conduct that is harmful but not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Ibid.) Within the category of actions or rules that are harmful but not inherently destructive, the asserted business need is balanced against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.) When balancing, the stronger the tendency to harm, the greater the respondent’s burden becomes to show its business need was important and that its actions or rules were narrowly tailored to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (p. 24-25.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay Testimony recounting the out of court statements of the Director of the agency would qualify as a party admission because the Director was an agent of the employer. (pp. 22-23.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay Testimony about an access request being denied was offered to show the access denial, not to prove the truth of the reasoning for the denial. Therefore, the testimony was not hearsay but was instead original testimonial evidence sufficient to support a finding. (p. 21.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay Testimony regarding an out-of-court statement that is not offered to prove the truth of the matter asserted is not hearsay. (People v. Sanchez, supra, 63 Cal.4th at p. 674; People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1019.) “Where the fact that a particular statement was made is of itself a relevant fact, regardless of the truth or falsity of such statement, the statement is admissible in evidence as an independently relevant fact[,]” and the hearsay rule does not apply because the statement is akin to a verbal act. (Store of Happiness v. Carmona & Allen, Inc. (1957) 152 Cal.App.2d 266, 274; see Smith v. Whittier (1892) 95 Cal. 279, 293-294 [“If the fact sought to be established is that certain words were spoken, without reference to the truth or falsity of the words, . . . the testimony of any person who heard the statement is original evidence, and not hearsay”].) (p. 20.) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay “Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content.” (People v. Sanchez (2016) 63 Cal.4th 665, 674-675.) Hearsay is defined by the Evidence Code as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), emphasis added.) “Senate committee comments to Evidence Code section 1200 explain that a statement ‘offered for some purpose other than to prove the fact stated therein is not hearsay.’” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675, quoting Sen. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3.) A “statement” may be either an “oral or written verbal expression” or the “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675, quoting Evid. Code, § 225.) “Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true.” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675.) (pp. 19-20) more or view all topics or full text.	46	20	06/30/21
2775M	County of San Joaquin 1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board The Board reviews exceptions to a proposed decision de novo. Under this standard of review, the Board is free to draw its own, and perhaps contrary, inferences from the evidence presented, and form its own conclusions. (p. 19.) more or view all topics or full text.	46	20	06/30/21
2765E	Gompers Preparatory Academy 1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal Certifying an interlocutory appeal would signify to the Board that a critical issue in this case needed immediate resolution. The Board could have expeditiously resolved the issue and returned the case to the ALJ to either order limited briefing on the merits if his Order was affirmed, or setting a hearing if his Order was reversed. (p. 19.) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal When determining whether to certify an interlocutory appeal to the Board, Board agents should be guided by PERB’s longstanding policy against “depriv[ing parties] of the opportunity to have their issues heard on the merits due to legal technicalities.” (p. 19) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal Whether good cause existed to accept a late-filed answer was an appropriate issue for an interlocutory appeal pursuant to PERB Regulation 32200. In order for an ALJ to join in the request and certify the interlocutory appeal to the Board itself, three elements must be found: (a) the issue involved is one of law; (b) the issue involved is controlling in the case; and (c) an immediate appeal will materially advance the resolution of the case. (Ibid.) Because the existence of good cause requires the application of a legal standard, it is an appropriate issue to certify to the Board. Because the ALJ construed the late-filed answer as resulting in the respondent admitting all material factual allegations in the complaint and charge, waiving all affirmative defenses, and waiving its right to a hearing, finding no good cause was sufficiently controlling to warrant an interlocutory appeal. Certifying an interlocutory appeal would have avoided duplicative briefing, so the appeal would have materially advanced the resolution of the case. (p. 18) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards When respondent provided its answer to the ALJ and Charging Party 10 days after it was originally due, and over three months before the first day of hearing, no prejudice would have resulted from accepting the late-field answer. (p. 17) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards The Board has never adopted a categorical rule that an attorney’s conduct can never constitute good cause to excuse a late filing. While an attorney’s erroneous interpretation of the law or misunderstanding of PERB’s regulations does not normally constitute good cause, there is no categorical bar to finding good cause for an attorney’s honest mistakes. (p. 16) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards Finding good cause to excuse answer filed 10 days late when attorney for Respondent’s declaration in support of its motion to file a late answer explained that the answer was not timely filed due to “an honest mistake and miscommunication between departments” within the law firm that resulted in a calendaring error. The answer was drafted five days prior to the filing deadline, and Respondent had mistakenly believed that the answer was filed. The mistake and miscommunication were due to staff adjustments to working entirely from home with reduced hours and modified assignments in the first weeks of the stay-at-home order due to the COVID-19 pandemic. The attorney along with some of the staff responsible for calendaring and administrative support struggled with illness and caring for family members, in addition to performing their job duties from home during the beginning of the pandemic. The complaint was issued less than one month after California’s stay-at-home order required all employees deemed “non-essential” to remain at home. The unexpected shift from conducting business in-person to virtually from home caused widespread disruption to business practices. , This explanation was sufficient to establish good cause. (pp. 14-15) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards Good cause is a flexible standard, defined and constrained by considerations of fairness and reasonableness. Consistent with the policy of “not depriv[ing parties] of the opportunity to have their issues heard on the merits due to legal technicalities” a rigid application of the good cause standard is not required. It is appropriate to take the entirety of the circumstances into account in our inquiry – especially in light of the COVID-19 pandemic and the statewide emergency stay-at-home order. (pp. 13-14) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards A late filing will generally be excused when it has resulted in a short and non-prejudicial delay, and it was the result of either “circumstances beyond the control of the filing party or from excusable misinformation, where the filing party’s explanation was credible on its face or was corroborated by other facts or testimony.” (p. 12) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1110.01000: CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING; In General; Standards Generally, good cause to excuse a late filing pursuant to PERB Regulation 32136 exists where the delay is of short duration and based on circumstances that were either unanticipated or beyond the party’s control. (p. 12) more or view all topics or full text.	45	99	04/30/21
2765E	Gompers Preparatory Academy 1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board When resolving exceptions to a proposed decision, the Board applies a de novo standard of review. Under this standard, we review the entire record and are free to make different factual findings and reach different legal conclusions than those in the proposed decision. The Board need not address alleged errors that would not impact the outcome. (p. 11.) more or view all topics or full text.	45	99	04/30/21
2782M	Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Because the statutory litigation privilege is not an evidentiary privilege, it does not bar a court from admitting into evidence statements made during an official proceeding. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [noting that the statutory litigation privilege “does not create an evidentiary privilege” and that “when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent”].) more or view all topics or full text.	46	35	07/26/21
2782M	Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions After receiving cross-motions for summary judgment, the ALJ found respondent union liable for the violations as alleged in the complaints. The Board reversed and dismissed the complaints and underlying charges. Union pointed to sufficient undisputed facts to demonstrate that charging parties could not prevail in their interference claims. The Board held that where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. The Board found undisputed facts showing that union’s request was not baseless, making a formal hearing unnecessary. more or view all topics or full text.	46	35	07/26/21
2782M	Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions A Board agent may issue a decision without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 13.) more or view all topics or full text.	46	35	07/26/21
2782M	Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 801.08000: UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION; Other The California Public Records Act (CPRA; Gov. Code § 6250 et seq.) was enacted “for the explicit purpose of ‘increasing freedom of information.’” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, internal citations omitted.) Invoking the CPRA—whether via litigation or via correspondence that could lead to litigation—normally should not constitute interference except where such acts are baseless and taken in bad faith, as set forth in Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731. Union’s CPRA request was not baseless where precedent does not clearly demonstrate whether union sought records that were exempt, in whole or in part, pursuant to CPRA section 6254, subdivision (c) and section 6255, subdivision (a). Furthermore, charging parties failed to object to disclosure after receiving Marken notices, which provided them with notice of the pending CPRA request and the opportunity to file a “reverse-CPRA” lawsuit seeking to restrict disclosure, or to otherwise suggest that any part of the request was overbroad. (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250.) After charging parties failed to raise any issue, the District proceeded to produce the documents, and as a result, the union’s request was 100 percent successful. more or view all topics or full text.	46	35	07/26/21
2782M	Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 801.08000: UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION; Other Complaint alleged that union interfered with protected rights of three special District employees when it submitted a public records request asking for, among other items, certain e-mails that charging parties sent or received over a 15-week period. Where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. (Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731.) The Board found undisputed facts showing that union’s request was not baseless, and the Board therefore found no need to reach any other issue. more or view all topics or full text.	46	35	07/26/21