| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2751M |
City of San Gabriel
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
It is appropriate to order a party to reinstate a withdrawn offer that it withdrew as part of an overall course of bad faith conduct. Distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered, ordering a bargaining party to return to a prior bargaining position that it abandoned in bad faith is well within the Board’s authority to craft a remedy that compensates affected parties and withholds from the wrongdoer the fruits of its violation. In accordance with these principles, we find that the ALJ’s Mead Corp. order was proper. We also agree with the ALJ that the present circumstances call for an order allowing the Association some choice regarding its preferred method of remedying the City’s violation, as “‘[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.’” (pp. 32-33.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Consistent with City of Glendale (2020) PERB Decision No. 2694-M, the ALJ found that the City demonstrated bad faith when it imposed three terms and conditions of employment that were not reasonably comprehended within its LBFO: the shift
schedule change, the increase of the maximum vacation accrual, and the change in special assignment pay for the paramedic coordinator. (p. 30, fn. 25.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
While “actively campaigning” against a tentative agreement may be another unlawful form of torpedoing, the level of dissenting bargaining team members’ active campaigning that would be sufficient to prove a union’s bad faith remains an unresolved issue. We need not address that question under the facts presented herein as there is no evidence that the Association engaged in any kind of conduct that undermined the negotiations process. (p. 29, fn. 23.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
Because bad faith bargaining allegations require assessment of the totality of conduct, the Board may also consider the charging party’s own conduct, regardless of whether the respondent has filed a countercharge. The City contends that the ALJ erred in concluding that it committed bad faith bargaining under the totality of conduct analysis because the ALJ failed to account for the Association’s own bad faith conduct. We disagree. Once the parties reach a tentative agreement, the duty of good faith implies that the negotiators will take the agreement to their respective principals in good faith. Negotiators have an obligation not to “torpedo” the proposed agreement or undermine the process that has occurred. If either party does not ratify the agreement, then the duty to bargain is revived. Torpedoing may take the form of repudiating an agreement, or making false statements about it. However, there is no evidence here suggesting such false statements or repudiation. The City argues that the ALJ ignored evidence that the Association failed to recommend the tentative agreement the parties reached at mediation, and instead torpedoed it during the ratification vote. While there is no dispute the parties reached a tentative agreement at the mediation, none of the evidence the City cites in support of its claim that the Association “indicated [to its membership] that the proposal should be voted down” persuades us that the Association’s representatives actually undermined ratification of the agreement. There is no evidence in the record that any Association agent actively campaigned against ratification of the agreement or repudiated it. Moreover, recommending a tentative agreement by the negotiations team is never a guarantee that the membership will ratify the proposal. We therefore do not find that any conduct by the Association excuses the City’s bad faith conduct. (pp. 28-30.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The City’s allegedly diligent attempts to meet and confer in good faith before declaring impasse do not comport with the record. Formal bargaining opened on April 12, 2017, at which point the Association presented its first proposal to the City. The City effectively idled for the next three months, finally announcing on July 31, 2017 that it was available to begin negotiations on August 16 or 17, 2017. In total, 139 days passed before the parties held their second bargaining session on August 29, 2017,
when the City presented its first proposal to the Association. The City’s timeline accelerated thereafter. The City did not wait for a third bargaining session or even for the Association’s response to its first proposal before issuing its LBFO on October 10, 2017. The City’s expressions of good faith ring hollow. Foremost, the City’s claimed “repeated attempts” to meet and confer with the Association were limited to the six-week period subsequent to the parties’ first formal bargaining session on August 29, 2017, with no accounting for the preceding 139 day period, during which the City appears to have sat on the Association’s proposal. Moreover, the City’s claimed attempts to meet and confer with the Association in the 42 days between August 29 and October 10, when it issued its LBFO, consists merely of a September 6, 2017 request for an additional bargaining date. Examined in their totality, these facts do not absolve the City of the finding that it rushed to impasse. We conclude, with the ALJ, that the City’s actions did not evince a genuine desire to reach an agreement, but rather a singular focus on achieving the City’s primary end—the elimination of the Flexible Benefit Plan by a date certain—at any expense to the bargaining process. (pp. 24-26.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
A party evinces bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere” (City of San Ramon (2018) PERB Decision No. 2571-M, p. 10), as such action “demonstrate[s] an intent to subvert the negotiating process.” (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures.” (City of San Ramon, supra, PERB Decision No. 2571-M, p. 6.) Thus, an employer is not privileged to impose concessions absent a bona fide impasse and doing so constitutes an illegal unilateral change. The Board considers the totality of circumstances to determine whether a bona fide impasse existed, including the number and length of negotiating sessions between parties, the time period over which the negotiations occurred, and the extent to which the parties have made and discussed counterproposals to each other. (pp. 23-24.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
The Board rejected the City’s arguments that it had a legitimate basis for making an exploding offer. When asked at hearing why the City made its exploding offer, a City bargaining representative testified that it was compelled to do so because of the dictates of CalPERS deadlines and payroll processing. However, the record did not support this claim, as the City acknowledged that it was, in fact, able to timely report open enrollment information to CalPERS. The City also claimed that the exploding offer was justified because it needed to curb ongoing liability for overtime costs related to Flores v. City of San Gabriel (9th Cir. 2016) 824 F.3d 890 (Flores), in which the United States Court of Appeals for the Ninth Circuit held that the City had improperly calculated some of its employees’ regular rate of pay. The ALJ found that any urgency created by the City’s need to comply with Flores was a dilemma of the City’s own making, as it knew by May 2017 that the decision had become final, yet still waited until August 2017 to make its first contract proposal to the union, which was four months after the union made its first proposal. Because an exploding offer risks the same harm as regressive bargaining in that it “telegraphs a threat to move the parties farther apart unless the other party accedes to a particular unilaterally-established deadline,” a party typically must show changed economic conditions or other changed circumstances to support such an offer. The Flores decision constituted neither, as the City knew of its potential liability as early as June 2016, when the Ninth Circuit issued its decision, or by June 2017 at the latest, which is when the City claimed that it learned its petition for writ of certiorari had been denied. Finally, even setting aside the City’s delay, an employer cannot unilaterally choose a date by which it needs to conclude negotiations so that it can begin saving money. (pp. 18-22.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
A party cannot in good faith make an exploding proposal unless it can adequately explain a legitimate basis for doing so. When a party issues an exploding offer without an adequate explanation as to why its bargaining position should become less generous on a given date in the future, it preemptively indicates its intent to engage in regressive bargaining, imposes its own ground rule and deadline, evidences unlawful inflexibility, and manifests a take-it-or-leave-it attitude. Although an exploding offer is not a per se violation, a bargaining party evidences bad faith under the totality of conduct test if it does not adequately justify a threatened change in position that is inherent in an exploding offer. (p. 18.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2751M |
City of San Gabriel
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific conduct involved and its effect on the negotiating process. Per se violations
generally involve conduct that violates statutory rights or procedural bargaining norms, irrespective of a party’s intent. In contrast, the totality of conduct test applies to bad faith bargaining allegations that our precedent has not identified as constituting a per se refusal to bargain. In such surface bargaining cases, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith. The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. Because PERB evaluates the net effect of respondent’s conduct on the course of negotiations, even a single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (pp. 17-18.) more or view all topics or full text. |
45 | 64 | 12/14/20 |
| 2757M |
City and County of San Francisco
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
A finding of good cause to excuse a late filing pursuant to PERB Regulation 32136 does not depend on whether the responsible person was an attorney but whether the late filing was occasioned by circumstances that were either unanticipated or beyond the person’s control, whether the responsible person provided a reasonable and credible explanation for their failure to comply, or made a conscientious effort to comply with the filing deadline. (p. 11.) Even where no prejudice to the other party is apparent, PERB must determine whether good cause exists. Respondent counsel’s busy caseload and PERB’s simultaneous issuance of three complaints and eight dismissals in related cases did not establish good cause to excuse a four month delay in filing an answer. (p. 10.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Failure to file an answer constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing, and precludes the assertion of affirmative defenses. (PERB Regulation 32644, subdivision (c); Regents of the University of California (2018) PERB Decision No. 2601-H, p. 14.) Thus, a respondent’s failure to establish good cause to excuse a late answer may result in a default judgment. (pp. 8, 15, fn. 5.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing
Unless the Board limits the posting requirement, PERB’s traditional remedy for an employer’s unfair practice includes a notice posting requirement on a unit-wide basis. “The purpose of posting a notice incorporating the terms of the order is educational for the represented employees. It is to notify employees of the conduct that was found to be unlawful, assure all employees affected by the decision of their rights and PERB’s conclusions, and inform employees that the controversy is now resolved and the employer is ready to comply with the remedy ordered.” [Citation.] The posting requirement also serves the purpose of “prevent[ing] the recurrence of the prohibited conduct on a unit-wide basis.” [Citation.] (p. 13.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
The finding of an unfair practice creates a presumption that employees suffered some financial loss as a result of the employer’s unlawful conduct; thus, it is appropriate to give charging party an opportunity to establish in compliance proceedings that he suffered a financial loss due to his placement on administrative leave and his subsequent reassignment. (p. 14.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1201.02000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Reinstatement
PERB has ordered that even when a retaliatory transfer was effectuated in accordance with existing procedures that does not foreclose an order requiring the respondent to offer charging party reinstatement to his former position, or a substantially similar position. (pp. 15-16.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
Order to cease and desist reprisal, discrimination, and interference against all employees is not overbroad and burdensome, because PERB commonly uses broad language referring to all employees, even when the unlawful conduct was directed at only one employee. (p. 14.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1104.03000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Proposed Decision
The Board held the ALJ properly found the respondent failed to establish good cause to excuse the late filing of its answer and thereby waived its right to a hearing. The Board further held the ALJ properly deemed the allegations in the complaint and underlying unfair practice charge to be true. more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
A finding of good cause to excuse a late filing pursuant to PERB Regulation 32136 does not depend on whether the responsible person was an attorney but whether the late filing was occasioned by circumstances that were either unanticipated or beyond the person’s control, whether the responsible person provided a reasonable and credible explanation for their failure to comply, or made a conscientious effort to comply with the filing deadline. (p. 11.) Even where no prejudice to the other party is apparent, PERB must determine whether good cause exists. Respondent counsel’s busy caseload and PERB’s simultaneous issuance of three complaints and eight dismissals in related cases did not establish good cause to excuse a four month delay in filing an answer. (p. 10.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
1103.03000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| 2757M |
City and County of San Francisco
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
PERB has ordered that even when a retaliatory transfer was effectuated in accordance with existing procedures, that fact does not foreclose an order requiring the respondent to offer charging party reinstatement to the former position, or a substantially similar position. (pp. 15-16.) more or view all topics or full text. |
45 | 84 | 03/03/21 |
| A485M |
County of Santa Clara
1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations
An independent violation can be proven without also proving another alleged violation, while a derivative violation depends entirely on proving another violation. (p. 9.) more or view all topics or full text. |
45 | 85 | 03/02/21 |
| A485M |
County of Santa Clara
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
When considering whether to defer an unfair practice charge to arbitration, PERB applies a three-part test: (1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the respondent is willing to waive contract-based procedural defenses to the grievance or arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning lie at the center of the dispute. (p. 6.) The contract and its meaning lie at the center of the dispute when (1) the alleged unfair practice is arguably prohibited by the collective bargaining agreement and (2) resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (p. 8.) Deferral is not appropriate unless all factually or legally interrelated allegations are subject to deferral. (pp. 9-12.) The Board concluded the charge was not subject to deferral because, while three of four factually interrelated allegations met the criteria for deferral, the fourth allegation did not. (pp. 12-23.) more or view all topics or full text. |
45 | 85 | 03/02/21 |
| A485M |
County of Santa Clara
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
When considering whether to defer an unfair practice charge to arbitration, PERB applies a three-part test: (1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the respondent is willing to waive contract-based procedural defenses to the grievance or arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning lie at the center of the dispute. (p. 6.) The contract and its meaning lie at the center of the dispute when (1) the alleged unfair practice is arguably prohibited by the collective bargaining agreement and (2) resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (p. 8.) PERB determines the appropriateness of deferring an allegation on a case-by-case basis by focusing on whether an arbitrator would necessarily have to resolve the statutory unfair practice allegation. (p. 18.) Deferral is not appropriate unless all factually or legally interrelated allegations are subject to deferral. (pp. 9-12.) The Board concluded the charge was not subject to deferral because, while three of four factually interrelated allegations met the criteria for deferral, the fourth allegation did not. (pp. 12-23.)
Categorically barring retaliation or discrimination allegations from deferral to arbitration is not appropriate because parties may agree to have an arbitrator decide a statutory unfair practice issue. (pp. 15-18.) While a contractual just cause provision typically does not support deferral of a retaliation or discrimination allegation, deferral may be appropriate when the agreement contains a non-discrimination clause. (p. 19.) A retaliation allegation was subject to deferral when the collective bargaining agreement contained a non-discrimination clause prohibiting the employer from discriminating against employees because of union activity, and the charge alleged a steward was denied paid release time because of her attendance at a meeting on behalf of the union. (pp. 20-22.) more or view all topics or full text. |
45 | 85 | 03/02/21 |
| A485M |
County of Santa Clara
102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
When considering whether to defer an unfair practice charge to arbitration, PERB applies a three-part test: (1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the respondent is willing to waive contract-based procedural defenses to the grievance or arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning lie at the center of the dispute. (p. 6.) The contract and its meaning lie at the center of the dispute when (1) the alleged unfair practice is arguably prohibited by the collective bargaining agreement and (2) resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (p. 8.) Deferral is not appropriate unless all factually or legally interrelated allegations are subject to deferral. (pp. 9-12.) The Board concluded the charge was not subject to deferral because, while three of four factually interrelated allegations met the criteria for deferral, the fourth allegation did not. (pp. 12-23.) more or view all topics or full text. |
45 | 85 | 03/02/21 |
Notice Regarding Use of Generative Artificial Intelligence (“AI”) at PERB
For information about use of AI in PERB filings, see Atwater Elementary Teachers Association, CTA/NEA (Garcia) (2025) PERB Decision No. 2995-E and our FAQ.
