Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2760S	State of California (Correctional Health Care Services) 101.02000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession Notwithstanding the State Personnel Board’s jurisdiction to enforce civil service laws, prescribe classifications, and review disciplinary actions against state civil service employees, PERB is authorized to provide a full remedy if such employees experience discrimination for engaging in activity the Dills Act protects. In Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 198, the California Supreme Court explained that PERB’s authority over unfair practices did not infringe on SPB’s jurisdiction to review disciplinary actions because SPB and PERB were created to serve “different, but not inconsistent, public purposes.” (Id. at p. 197.) If the State, in the course of making a personnel decision, discriminates against protected activity in violation of the Dills Act, it transgresses the merit principle as well. (Id. at p. 198.) Thus, the Court declined “to construe article VII, section 3, subdivision (a) [of the State Constitution] in a manner that would deprive all state civil service employees of the important safeguards afforded by [PERB and other] specialized agencies.” (Id. at p. 199.) In reaching this conclusion, the Court noted that when the Legislature enacted the Dills Act, it explicitly tailored the law so as not “to contravene the spirit or intent of the merit principle.” (Dills Act, § 3512.) The Court rejected the argument that granting PERB jurisdiction to “devise remedies for unfair practices” is “irreconcilably in conflict with [SPB’s] jurisdiction to ‘review disciplinary actions’ under [article VII of the State Constitution].” ((Id. at p. 196.) The Court advised that “in those areas in which the [agencies’] jurisdiction . . . overlap, familiar rules of construction” require “harmoniz[ing] the disparate procedures” rather than invalidating one or the other. (Id. at p. 197.) The Court found it would be an overreach to reserve only to SPB all authority to remedy unlawful actions against a civil service employee. (Id. at p. 199.) In State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, the Court reaffirmed Pacific Legal Foundation and its holding that the Constitution allows the Legislature to create “specialized watchdog” agencies such as PERB and the Fair Employment and Housing Commission (FEHC) (id. at pp. 438-439), explaining that it is not difficult to harmonize the agencies’ powers because they serve complementary purposes (id. at p. 438). The Court reiterated that it believed the main source of overlap would be in cases involving discipline and that even in such cases SPB’s jurisdiction does not dislodge the Legislature from creating specialized agencies with complementary roles, such as PERB and FEHC. (Id. at p. 439.) more or view all topics or full text.	45	91	04/12/21
A486M	Central Basin Municipal Water District 1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements In determining whether a petitioner has achieved a majority (or a lower level of support, as applicable in other contexts), PERB’s Office of the General Counsel assesses proof of support based on an employee list as the date the petition was filed and, correspondingly, employee support or lack thereof as of the same date. (Regents of the University of California (2017) PERB Order No. Ad-453-H, p. 21 and adopted administrative determination at p. 5; Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 14.) Purported revocation which postdated petition filing date irrelevant as a matter of law. more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements An employer that does not dispute the appropriateness of a proposed unit, after having been provided an opportunity to do so, waives any argument that the unit is inappropriate. more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements In reviewing a Board agent’s proof-of-support determination, the Board applies an abuse-of-discretion standard. (Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 13.) more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1302.01000: REPRESENTATION ISSUES; DECERTIFICATION; In General; Filing Requirements Decertification is in most instances an appropriate procedure for employees who have changed their mind. However, a decertification petition cannot be filed in at least the first year after recognition or certification (Gov. Code, § 3507, subd. (b)), and no decertification election is possible if unfair practices prevent a fair election from proceeding. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, pp. 5-6.) Because employer unfair practices can make it impossible to hold a decertification election, a clear lesson emerges: an employer concerned about employees’ ability to decertify a union will maximize that ability by refraining from unfair practices. more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1300.02000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; Request for Recognition Because PERB’s Office of the General Counsel determined that petitioning union demonstrated majority support, and the District had not challenged unit appropriateness, the District was obligated to recognize petitioning union as the exclusive representative of the proposed unit; and when the District failed to do so, OGC was required to certify petitioning union. (Gov. Code, § 3507.1, subd. (c).) more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1300.01000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; In General The MMBA grants local public agencies the authority to adopt reasonable rules concerning recognition of unions and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (Gov. Code, § 3507, subd. (a).) However, if an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap. (Gov. Code, § 3509, subd. (a); Morongo Basin Transit Authority (2015) PERB Order No. Ad-430-M, p. 8; County of Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M, p. 17.) more or view all topics or full text.	45	88	03/24/21
A486M	Central Basin Municipal Water District 1300.01000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; In General Under the MMBA, a union seeking to exclusively represent an employee group constituting an appropriate unit may petition for an election. (Gov. Code, § 3507.1, subd. (a).) The union alternatively may require the employer to abide by the results of a “card check” in which a neutral third party determines if the union has collected sufficient proof of support from employees to demonstrate a majority within the unit, though this option is unavailable if another union already exclusively represents the unit or can demonstrate at least 30 percent support in the unit. (Id., subd. (c).) The statutory card check provision establishes an expedited method for certifying an exclusive representative for purposes of meeting and conferring over wages, hours and terms and conditions of employment. (Morongo Basin Transit Authority (2015) PERB Order No. Ad-430-M, p. 11.) more or view all topics or full text.	45	88	03/24/21
2756H	Regents of the University of California 410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses To the extent the University alleges that its posting was necessary to respond to Teamsters’ flyer, we consider that an affirmative defense. The University raised such a defense in its response to the charge, but sufficient material factual disputes exist to warrant a hearing on the merits. A hearing will give the parties the opportunity to present evidence of the context in which the University’s communication was made and received, an important consideration in determining a PEDD section 3550 violation. The formal hearing process is the appropriate venue for the Union to prove its case, and the Employer to present its affirmative defense, viz. to demonstrate that its asserted business necessity outweighs the tendency of its communication to influence employee free choice. (p. 9.) more or view all topics or full text.	45	82	03/01/21
2756H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards By its plain language, PEDD section 3550 applies broadly to employer conduct toward “public employees or applicants.” The statute restricts an employer’s influence over employee decisions whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees “irrespective of whether employees are exclusively represented by a union.” (Regents, supra, PERB Decision No. 2755-H, p. 39.) Indeed, employee decisions whether or not to authorize representation occur frequently when employees are unrepresented. Although Regents of the University of California (2021) PERB Decision No. 2755-H involved communications to represented employees, the plain language of the statute suggests no reason a different test would necessarily apply where, as here, the employer’s conduct or communication is directed toward unrepresented employees. (p. 8.) more or view all topics or full text.	45	82	03/01/21
2756H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards Where a charging party shows employer conduct tended to influence employee decisions about whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees, the burden then shifts to the employer to plead and prove a business necessity as an affirmative defense. (p. 7.) more or view all topics or full text.	45	82	03/01/21
2756H	Regents of the University of California 101.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General PEDD section 3550 creates a new and more robust protection that is not subject to the free speech safe harbor of HEERA section 3571.3. (p. 7.) more or view all topics or full text.	45	82	03/01/21
2755H	Regents of the University of California 1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles When interpreting statutory language, PERB begins with the fundamental rule that it should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Where the language of a statute is clear and unambiguous the construction intended by the Legislature is obvious from the language used. Statutes are to be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers. Further, every statute should be construed with reference to the whole system of which it is a part so that all may be harmonized and have effect. Where the provisions of a statute are subject to two or more reasonable interpretations, the interpretation which will harmonize rather than conflict with other provisions thereof should be adopted. (pp. 20-21.) Generally, when the Legislature uses a word or phrase in a particular sense in one statute, the word or phrase should be understood to carry the same meaning when it appears in another statute dealing with the same subject matter. Government Code sections 16645 and 3550 deal with the same subject matter—employer conduct related to employee decisions about union support. The Legislature’s use of “deter” in both statutes thus indicates it intended for the word to be interpreted similarly in each. (p. 23.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses A variety of contextual factors may be relevant in assessing an employer’s asserted business justification for conduct which otherwise deters or discourages employee free choice, and will depend on the evidence and circumstances of each particular case. For example, truthfulness, whether an employer is responding to a misleading union communication, and employer motive, as well as the mode, frequency, and/or timing of a communication, may all be relevant considerations. (pp. 36-37.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses The Board applies a balancing test where an employer raises a legitimate business necessity for conduct which deters or discourages employees from authorizing union representation, choosing to become or remain a union member, or commencing or continuing to pay union dues or fees. Where a charging party shows employer conduct tended to influence employee decisions on one of these topics, the burden shifts to the employer. The degree of likely influence dictates the employer’s burden. If the likely influence is “inherently destructive” of employee free choice, then the employer must show that the deterring or discouraging conduct was caused by circumstances beyond its control and that no alternative course of action was available. For conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity and PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. Within the category of conduct or communications that are not inherently destructive of section 3550’s protections, the stronger the likelihood to influence employee free choice, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its conduct or communication to attain that purpose while limiting influence on employee free choice to the extent possible. If the likelihood of influence outweighs the asserted business necessity, PERB will find a violation. (pp. 35-36.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards Where a charging party meets its burden to prove an employer violated PEDD section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550. A section 3553 violation shifts the burden to the employer to prove the mass communication does not tend to influence employee free choice. (p. 37.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards PEDD section 3550 is not subject to the free speech safe harbor limitations of HEERA section 3571.3 because it does not duplicate the interference standard. (p. 28.) By the plain language of the statutes, section 3550 is not limited by section 3571.3. (p. 29.) Because the PEDD is in its own chapter separate from HEERA, section 3571.3 by its plain terms does not apply to conduct subject to section 3550. (p.30.) This interpretation is also supported by the overall statutory framework, precedent, legislative history, and longstanding labor law principles. more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards PERB treats PEDD section 3550 even-handedly as prohibiting public employer conduct which tends to influence employee choices as to whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues. (p. 25.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards “Deter or discourage” in the context of PEDD section 3550 means to tend to influence an employee’s free choice regarding whether or not to (1) authorize union representation, (2) become or remain a union member, or (3) commence or continue paying union dues or fees. (p. 21.) PERB looks first to the conduct or communication itself in determining whether it tends to influence employee free choice. But the Board also will examine the context surrounding the conduct or communication when determining whether such conduct is reasonably likely to deter or discourage employee choices on union matters. (p. 24.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 404.02000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS; Statements In resolving an interference claim involving employer speech, the Board considers the employer’s statement in its overall context, i.e., in light of surrounding circumstances, to determine if an employee or union representative would objectively tend to feel that the statement coerces, restrains, or otherwise interferes with protected rights. One relevant factor is the extent to which a statement is truthful or misleading. (pp. 52-53.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards Violations of PEDD section 3550 do not require a showing of coercive effect, and thus do not give rise to derivative interference violations. (p. 53.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to protected rights under our statutes. Once a charging party establishes a prima facie case, the burden shifts to the employer. The degree of harm dictates the employer’s burden. (p. 52.) more or view all topics or full text.	45	81	03/01/21
2755H	Regents of the University of California 101.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General PEDD section 3550 is not subject to the free speech safe harbor limitations of HEERA section 3571.3 because it does not duplicate the interference standard. (p. 28.) By the plain language of the statutes, section 3550 is not limited by section 3571.3. (p. 29.) Because the PEDD is in its own chapter separate from HEERA, section 3571.3 by its plain terms does not apply to conduct subject to section 3550. (p.30.) This interpretation is also supported by the overall statutory framework, precedent, legislative history, and longstanding labor law principles. more or view all topics or full text.	45	81	03/01/21
2610H	Regents of the University of California (Berkeley) 1000.02137: SCOPE OF REPRESENTATION; Subcontracting In addition to the test for negotiability set forth in Anaheim Union High School District (1981) PERB Decision No. 177, where an employer contemporaneously decides to terminate bargaining unit work and replace employees with those of an independent contractor to do the same work under similar conditions, such decisions do not involve a change in the scope and direction of the enterprise or a core entrepreneurial decision beyond the scope of the collective bargaining obligation. When this kind of subcontracting is involved, there is thus no need to inquire into labor costs or to apply Anaheim or any other tests for negotiability, as the U.S. Supreme Court, the NLRB, and PERB have all concluded that, as a matter of law, such decisions are negotiable. (p. 37.) more or view all topics or full text.	43	100	12/19/18
2610H	Regents of the University of California (Berkeley) 1000.02137: SCOPE OF REPRESENTATION; Subcontracting Using the test PERB set forth in Anaheim Union High School District (1981) PERB Decision No. 177 for the negotiability of subjects not specifically enumerated by statute as within the scope of representation, the Board has found subcontracting decisions to be negotiable if the management decision does not change the scope or direction of the enterprise. While a subcontracting decision may involve a managerial decision “at the core of entrepreneurial control” and “be based on factors not amenable to negotiation” (Ventura County Community College District (2003) PERB Decision No. 1547, p. 19), decisions involving personnel matters, such as absenteeism, workplace efficiency and employee turnover, are suitable for collective bargaining. Decisions to outsource which are based on labor costs, viz., “overall enterprise costs,” are “peculiarly suitable for resolution through the collective bargaining framework,” because the union has control over some enterprise costs (labor costs) and may make concessions through negotiations that “substantially mitigate the concerns underlying the employer’s decision, thereby convincing the employer to rescind its decision.” (Ibid.) (pp. 36-37.) more or view all topics or full text.	43	100	12/19/18