Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 608.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Management-Rights Clause; Management Prerogative There are three distinct categories of managerial decisions, each with its own implications for the scope of representation. Regarding the third category, decisions that affect employment conditions but are not concerned primarily with employment, the Board must balance the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. Aspects of a ballot measure that directly affect employment (e.g., investigating and disciplining employees) tend to fall on the negotiable side, unlike measures that relate primarily to public safety. Thus, decision bargaining is required for those amendments. (pp. 36-44.) The Board’s holding in County of Orange (2019) PERB Decision No. 2657-M, that some management decisions “expanding law enforcement oversight” are outside the scope of representation, cannot exclude all decisions related to law enforcement oversight. Applying the balancing test, the Board concluded that only the ballot measure amendments on investigating employees and recommending discipline are within the scope of representation. (pp. 43-44.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception “[U]nder exceptionally limited circumstances, an employer may be excused from negotiating on the basis of true emergency that provides a basis for claiming that a business necessity excused a unilateral change.” To establish this emergency exception, the employer must make a specific and actual showing of an emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. The alleged necessity must be the unavoidable result of a sudden change in circumstance beyond the employer’s control. Emergency is not synonymous with expediency, convenience, or best interests. The County failed prove that it had no alternative to placing the ballot measure on the November 2020 ballot and the expediency, convenience, or best interests served by placing the ballot measure on the November 2020 ballot did not amount to an emergency that excused the County from its obligation under the MMBA to provide the Associations notice and an opportunity to bargain before doing so. (pp. 49-52.) A public agency may be privileged to place a measure on the ballot prior to completing negotiations when it is “faced with an imminent need to act prior to the statutory deadline for submitting the [measure] for the ballot.” But the statutory deadline itself is not such an “imminent need.” No evidence in the record established an “imminent need” for the County to have called a special election to place the ballot measure on the November 2020 ballot. As a result, the County’s obligation to meet and confer over the measure’s negotiable amendments was not excused. (pp. 51-52.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 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 * * * VACATED IN PART on other grounds by County of Sonoma (2023) PERB Decision No. 2772a-M * * * A public agency may be privileged to place a measure on the ballot prior to completing negotiations when it is “faced with an imminent need to act prior to the statutory deadline for submitting the [measure] for the ballot.” But the statutory deadline itself is not such an “imminent need.” No evidence in the record established an “imminent need” for the County to have called a special election to place the ballot measure on the November 2020 ballot. As a result, the County’s obligation to meet and confer over the measure’s negotiable amendments before placing it on the ballot was not excused. (pp. 51-52.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 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 * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * A ballot measure giving a police review agency authority to independently investigate County peace officer misconduct constituted a change in policy where the police review agency previously had no authority to conduct independent investigations. The ballot measure also changed: (1) investigation and disciplinary procedures and standards; (2) body worn camera policies; (3) access and use of confidential documents; and (4) access to Sheriff’s Office witnesses for an investigatory interview. (pp. 28-33.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 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 * * * VACATED IN PART on other grounds by County of Sonoma (2023) PERB Decision No. 2772a-M * * * County Board of Supervisors (BOS) gave affected employee organizations no notice that it would vote to place a ballot measure on the November 2020 ballot; Associations first learned of the County Board of Supervisors’ potential vote immediately before it occurred. Placement of a ballot measure on the ballot on the last day to do so deprived the Associations of their statutory right to meet and confer prior to the BOS arriving at a determination of policy or course of action on the amendments within the scope of representation, as the measure could not be amended prior to the election or after the ballot measure passed. (p. 49.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General * * * VACATED IN PART on other grounds by County of Sonoma (2023) PERB Decision No. 2772a-M * * * A unilateral change to a matter within the scope of representation is a per se violation of the duty to meet and confer in good faith. To establish a prima facie unilateral change violation, the charging party must prove that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms and conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and negotiating in good faith at the union’s request, until the parties reached an agreement or a lawful impasse. (pp. 26-27.) more or view all topics or full text.	46	8	06/23/21
2772M	County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * * 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 * * * VACATED IN PART on other grounds by County of Sonoma (2023) PERB Decision No. 2772a-M * * * Effects bargaining contemplates that negotiations may ultimately cause the employer to change its mind about the non-negotiable decision in some way. Because the Associations’ ability to propose alternatives to the County Board of Supervisors’ decision vanished as soon as it placed the ballot measure on the ballot, the County violated the statutory duty to meet and confer. (p. 54.) more or view all topics or full text.	46	8	06/23/21
2761M	County of San Joaquin 503.15000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Other Employer’s use of “Leave Unauthorized” payroll code was adverse action because employees reasonably believed it could lead to discipline. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General A “properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) An appropriate remedy therefore should make whole all injured persons or organizations for the full amount of their losses and should withhold from the wrongdoer the fruits of its violation. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.) In addition to serving restorative and compensatory functions, a Board-ordered remedy should also deter future misconduct, so long as the order is not a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the labor relations laws the Board enforces. (Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 10-11.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, PERB ordered the County to provide all lost compensation, including but not limited to wages, differentials, accruals, and other benefits, to those nurses who were scheduled to work on the three post-strike days, but whom the County barred from work on such a scheduled day. PERB’s Order included nurses who were subsequently called back to work but did not return during that period, given that it was reasonable for employees to believe they had the contractual right not to return once they were furloughed. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations While the complaint in the instant case adequately alleged an independent claim of interference with union’s rights, even setting that conclusion aside, the unalleged violation doctrine provided a basis for the Board to consider interference with both employee and organizational rights. (See, e.g., County of Santa Clara (2017) PERB Decision No. 2539-M, pp. 16-17 [applying unalleged violation doctrine to independent interference claim, after having found complaint did not adequately allege it].) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1107.03000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Remand for Further Hearing; Remand to General Counsel Although the ALJ should have granted union’s motion to amend complaint, the Board declined to remand for the parties to litigate the additional unilateral change claim. This decision best effectuates the MMBA’s purposes because remand would substantially delay the outcome of the matter without providing an opportunity for different make-whole relief. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1105.07000: CASE PROCESSING PROCEDURES; EVIDENCE; Administrative and Judicial Notice PERB frequently takes administrative notice of its own records and files. (See, e.g., Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, p. 2, fn. 3; Regents of the University of California (2019) PERB Decision No. 2646-H, p. 3, fn. 4; Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 2, fn. 3.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions ALJ should have granted union’s motion to amend. The ALJ ruled on the merits of the issue prior to the close of the hearing, which is only appropriate 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 on one or more issues unnecessary. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, pp. 13 & 15.) While there can be occasions in which an ALJ may, on her or his own accord, raise potential summary judgment on a claim, the ALJ here did so without notice to the parties and without an adequate substantive basis. Because the ALJ sought to resolve a theory on the merits without hearing evidence on it, he should have applied “the standard governing the pre-complaint investigation of an unfair practice charge.” (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) In those circumstances, a hearing is required if there were, as here, “contested, colorable legal theories.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions PERB favors a liberal right to amend pleadings, so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 (EMWD).) A party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (Ibid.; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8.) Notably, “prejudice typically means that a party has been prevented from preparing or presenting evidence or argument. It does not typically mean that an amendment improves one party’s pleadings and thereby presents an additional obstacle to the opposing party; were that the case, nearly every proposed amendment would be prejudicial.” (EMWD, supra, PERB Decision No. 2715- M, pp. 11-12.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Id. at p. 8.) This standard remains the same even if a charging party moves to amend its complaint after resting its case-in-chief. (EMWD, supra, PERB Decision No. 2715-M, p. 9, citing Contra Costa Community College District, supra, PERB Decision No. 2669, p. 8.) Thus, at any stage, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? (EMWD, supra, PERB Decision No. 2715-M, p. 9.) In some cases, moreover, a proposed amendment may cause so little prejudice that there is no need for a continuance. (Ibid.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations Where conduct set forth in earlier complaint paragraphs could constitute a violation irrespective of motive, the phrase “this conduct also interfered” does not limit a charging party to litigating only a derivative interference theory. The Board partially overruled County of Santa Clara (2017) PERB Decision No. 2539-M, to the extent it can be read to suggest that “this conduct” always refers only to the immediately preceding paragraph of the complaint rather than to the underlying conduct set forth in earlier complaint paragraphs. PERB precedent, as properly construed, does not impose the artificial, deleterious obstacles that the concurrence discerned in County of Santa Clara, supra, PERB Decision No. 2539-M. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations Where a complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent rather than derivative if the interference claim can be established without the other claim being established. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, an independent interference claim is cognizable. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1103.01000: CASE PROCESSING PROCEDURES; COMPLAINT; In General Notice pleading principles do not impose severe requirements in providing a respondent general notice of the claims alleged, especially given that PERB “is not a court, but an administrative agency” and favors “hearing cases on their merits.” (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 22, fn. 7.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1103.01000: CASE PROCESSING PROCEDURES; COMPLAINT; In General In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, the complaint alleged discrimination against union and employee rights, as well as an independent claim for interference with union’s rights, but only a derivative claim for violation of employee rights. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1100.02000: CASE PROCESSING PROCEDURES; CHARGE; Investigation of Charge If PERB’s Office of the General Counsel (OGC) does not address an allegation in a charge, PERB makes no assumption that OGC rejected the allegation. (See, e.g., Trustees of the California State University (2017) PERB Decision No. 2522-H, pp. 6, 18-19 [remand to OGC for further investigation where Board determined that dismissal did not address alternate theory of violation]; Trustees of the California State University (2014) PERB Decision No. 2384-H, pp. 4-5 [remand to OGC for further investigation of any factual or legal issues that were not fully or properly considered]; PERB Reg. 32620, subd. (d).) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 1100.02000: CASE PROCESSING PROCEDURES; CHARGE; Investigation of Charge PERB does not penalize a charging party for failing to label a theory that may fit the factual allegations in its charge; rather, PERB’s Office of the General Counsel must issue a complaint based on all legal theories for which the alleged facts state a prima facie case. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision No. 2452, pp. 53-54.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 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 unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9.) Three primary types of policy changes are sufficient to prove the first element: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Id. at p. 9.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 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 Advance notice and bargaining are the primary means by which the MMBA promotes its central purpose—communication—and would lead to greater understanding and harmony going forward. Work opportunities, hours, and mandatory furlough periods are within the scope of representation. (See, e.g., Modoc County Office of Education (2019) PERB Decision No. 2684, p. 10; City of Long Beach (2012) PERB Decision No. 2296-M, p. 23; County of Fresno (2010) PERB Decision No. 2125-M, adopting warning letter at p. 3.) A decision to contract with a striker replacement company had foreseeable effects on these mandatory subjects of bargaining. The employer therefore was required to provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation. (County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer’s conduct around notice or bargaining can evidence discrimination. (See, e.g., City and County of San Francisco (2020) PERB Decision No. 2712- M, p. 26 [allegation that employer refused to respond to bargaining request in a timely and adequate manner suggested discriminatory motive behind related employer conduct]; County of Orange (2018) PERB Decision No. 2611-M, p. 17 [unilateral change evidenced discriminatory animus].) Context is critical in determining whether particular conduct is persuasive proof of discrimination or an independent interference allegation. Where bargaining conduct evidences discrimination, PERB considers it irrespective of whether it was ever alleged or litigated in an unfair practice charge and irrespective of whether it falls within the statute of limitations. (City of Oakland (2014) PERB Decision No. 2387-M, pp. 35-36.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case PERB uses one of two tests in assessing discrimination cases. When the conduct at issue is not facially discriminatory, PERB applies the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 76; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, pp. 14-15.) To establish a prima facie case under the Novato framework, a charging party must prove four elements: (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. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26.) If the charging party has established a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent has the burden to prove that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.) more or view all topics or full text.	45	92	04/12/21