Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2671E	Lake Elsinore Unified School District 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures With no evidence to support charging party’s claimed past practice, charging party failed to prove the employer departed from established procedure or policy. (p. 7.) more or view all topics or full text.	44	72	09/27/19
2671E	Lake Elsinore Unified School District 503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities In determining whether evidence of adverse action is established, the Board uses an objective test and will not rely upon the subjective reactions of the employee. The effect on pay and benefits is not the only determiner of whether a transfer constitutes an adverse action. Other factors the Board looks to in transfer situations are increased preparation time to teach a new curriculum and more difficult students in the new assignment. Here, charging party’s reassignment from first grade to kindergarten was an adverse action because charging party had to spend time learning and preparing for a new curriculum, was subjected to more parental scrutiny, and generally had to provide more assistance and attention to kindergarten students than to first grade students. (Adopting proposed decision at pp. 20-21.) more or view all topics or full text.	44	72	09/27/19
2671E	Lake Elsinore Unified School District 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General Discriminatory enforcement of a work rule for the purpose of harassing or intimidating an employee in retaliation for having engaged in protected activity constitutes an adverse action. Here, the evidence did not show any discriminatory enforcement of the collective bargaining agreement’s class size provisions against charging party because kindergarten class sizes at the school did not differ by more than three students, consistent with the collective bargaining agreement. (Adopting proposed decision at p. 22.) more or view all topics or full text.	44	72	09/27/19
2671E	Lake Elsinore Unified School District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case To demonstrate that an employer discriminated or retaliated against an employee in violation of Educational Employment Relations Act (EERA) section 3543.5, subdivision (a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. The charging party has the initial burden of demonstrating the “because of” element, that is, a causal connection or “nexus” between the adverse action and the protected conduct. Because “retaliatory conduct is inherently volitional in nature,” evidence of unlawful motive is the specific nexus required to establish a prima facie case. (pp. 5-6.) more or view all topics or full text.	44	72	09/27/19
2671E	Lake Elsinore Unified School District 102.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; Enforcement of Settlement Agreements and Contracts 3541.5(b); 3514.5(b); 3563.2(b) Under Educational Employment Relations Act section 3541.5, subdivision (b), the Board “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” Because the Board had no power to enforce the parties’ disputed settlement agreement, it could not act on charging party’s “Motion to Review Settlement Agreement Due to EERA Violations and [to] Compel the [Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.” (p. 2., fn. 2.) more or view all topics or full text.	44	72	09/27/19
2681M	County of Contra Costa 1100.06000: CASE PROCESSING PROCEDURES; CHARGE; Withdrawal of Charge As part of the Board’s authority to take any action in a pending case that it deems necessary to discharge its duties and effectuate the purposes of the labor relations laws that PERB enforces, the Board has discretion to grant or deny requests to withdraw or dismiss exceptions, appeals, and cases pending before the Board, as well as to vacate or otherwise withdraw administrative determinations and other decisions or orders issued at any level of PERB. Here, after reviewing the parties’ settlement agreement, the Board found the joint request for withdrawal to be consistent with the Meyers-Milias-Brown Act’s purpose of promoting harmonious labor relations and therefore granted the withdrawal. (pp. 2-3.) more or view all topics or full text.	44	87	11/06/19
	504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text.
2675E	Lake Elsinore Unified School District 1107.19000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Motion to Reopen Record After the close of the record, one of the charging parties attempted to introduce new evidence. The Board found that the ALJ correctly rejected the charging party’s proffered evidence since she did not file a motion to reopen the record. On exceptions, charging parties again referred to the rejected exhibits without following the proper procedure for making them part of the evidentiary record and thus the Board, like the ALJ, declined to admit or rely upon them. (p. 9, fn. 6.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 1100.06000: CASE PROCESSING PROCEDURES; CHARGE; Withdrawal of Charge In light of the concerns raised by the allegations in charging party’s motion that the employer breached the parties’ settlement agreement and that some of the terms of the agreement violated charging party’s rights under the Educational Employment Relations Act, the Board denied charging party’s request to withdraw the charge in this case. (p. 3, fn. 3.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity Employer established its affirmative defense that it would have scheduled employee for consecutive evaluations even in the absence of protected activity, based solely on concerns relating to employee’s performance. The ALJ correctly weighed the employer’s evidence in support of its affirmative defense against the evidence supporting charging party’s prima facie case and concluded that the employer would have followed the same course of action even absent any protected activity. (p. 10.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity Even if employer’s decision not to place employee on a five-year evaluation cycle could be considered an objectively adverse action, employer established that it would have denied employee’s request to be placed on a five-year evaluation cycle regardless of her protected activities. Indeed, the same evidence of consistent practice that disproved the alleged adverse nature of the decision proves that it was not taken because of charging party’s efforts to vindicate her rights or those of her colleagues. Employer did not treat employee any differently than he treated other bargaining unit members. While employee may have believed she was denied a five-year evaluation cycle because of her protected conduct, the record establishes that such conduct had nothing to do with the decision. (p. 9.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Once a charging party has established a prima facie case of retaliation by a preponderance of the evidence, the burden shifts to the respondent to prove: (1) that it had an alternative nondiscriminatory reason for the challenged action; and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” [Citation.] Where there is evidence that the respondent’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” Here, the evidence showed that the employer acted because of performance concerns rather than to punish protected activity. Because the weight of the evidence supported the employer’s stated reasons for its action, there was no evidence that those reasons were a pretext for retaliation. (Adopting proposed decision at pp. 53-54, 57.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures Administrator’s admission that he did not hold a pre-observation conference with teacher as required by the collective bargaining agreement and that he gave her an unsatisfactory mark on her evaluation without a second observation, which may have been contrary to the collective bargaining agreement, were departures from established procedures that may have indicated unlawful motivation. (Adopting proposed decision at pp. 52-53.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations Requiring a consecutive year evaluation of a permanent employee who had previously been rated as meeting required standards signals a performance deficiency and is therefore an adverse action. (Adopting proposed decision at p. 49.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations A heated exchange during a non-disciplinary meeting without any further impact on employment conditions does not amount to an adverse action. (Adopting proposed decision at p. 45.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations School administrators’ five-minute informal observation of teacher’s classroom during the first week of school was not an adverse action. Despite teacher’s assertion that administrators had never before observed his classroom during the first week of school, there was ample evidence in the record that such informal observations were routine and commonplace. Such visits were also expressly allowed under the collective bargaining agreement evaluation article, whether or not an employee was due for formal evaluation. There were no facts demonstrating any impact by the informal observation, let alone a negative one, on teacher’s employment interests. (Adopting proposed decision at p. 44.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations PERB uses an objective test to decide whether an employer’s action is adverse to an employee. The question is “whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” [Citation.] Employer’s denial of employee’s request to be placed on a five-year evaluation cycle was not objectively adverse because no reasonable teacher would infer that such a decision reflected some deficiency in employee’s qualities as a teacher. Specifically, it was undisputed that employer never approved such requests unless and until he had the opportunity to evaluate the employee at least once. Since employer had no such opportunity with the employee, his decision was consistent with his practice. In light of the record evidence, employee’s request amounted to one for special treatment, i.e., employer would have to suspend his normal practice in order to place her on a five-year evaluation cycle. Under these circumstances, the employer’s decision not to create an exception but instead to follow its existing practice did not amount to an adverse action. (pp. 8-9.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case To establish a prima facie case that an employer has discriminated or retaliated against an employee in violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the exercise of those rights. (p. 7.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 300.17000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Other In finding that charging party engaged in protected activity by volunteering to participate in the Peer Assistance and Review program, the attached proposed decision relied on Jurupa Unified School District (2012) PERB Decision No. 2283. In that case, a teacher engaged in protected activity by filing complaints under the collective bargaining agreement seeking to enforce the agreement’s evaluation and nondiscrimination provisions. (Id. at p. 16.) Here, charging party was not attempting to enforce the collective bargaining agreement but merely exercising a right provided to her under the agreement. Thus, Oakdale Union Elementary School District (1998) PERB Decision No. 1246, in which an employee engaged in protected activity by exercising her right under the agreement to report workplace safety issues, provides more apt support for the proposed decision’s finding. (p. 10, fn. 7.) more or view all topics or full text.	44	78	10/17/19
2675E	Lake Elsinore Unified School District 102.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; Enforcement of Settlement Agreements and Contracts 3541.5(b); 3514.5(b); 3563.2(b) Under Educational Employment Relations Act section 3541.5, subdivision (b), the Board “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” Because the Board had no power to enforce a disputed settlement agreement, it could not act on charging party’s “Motion to Review Settlement Agreement Due to EERA Violations and [to] Compel the [Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.” (p. 3, fn. 3.) more or view all topics or full text.	44	78	10/17/19
I062H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119) 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief The Board would not infer impermissible coordination based solely on the employer’s “information and belief” that such coordination must be present [citation], because such unsupported allegations could not overcome the unions’ established and presumptive right to exercise the ultimate recourse to strike and to stand in solidarity with their sister employee organizations. (p. 8.) more or view all topics or full text.	44	94	11/07/19
I062H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119) 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief The University’s “disproportionate economic impact” theory also failed because it did not marshal meaningful evidence to support the argument’s factual predicate. The only evidence the University presented about disproportionate economic impact came from one paragraph in a declaration from the University’s Executive Director of Labor Relations, that he is “informed and believe[s] that virtually all the private companies that provide replacement workers during a strike require at least a 36-hour commitment” and that he is “informed and believe[s]” the cost of a replacement is “at least 1 to 3 times more than the cost of a University employee.” Neither of these statements gave evidence about the actual cost of the University’s replacement workers for the strikes at issue. (p. 11, fn. 9.) more or view all topics or full text.	44	94	11/07/19
I062H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119) 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief In addition to its failure to establish a substantial or non-frivolous theory of an unfair practice, the University’s charges raised no colorable claim that “there exists a probability that the purposes of the [HEERA] will be frustrated unless temporary relief is granted . . . [or] the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless.” [Citation.] This is because the University complained only that the strikes would inflict “a disproportionate level economic harm,” which, even if true, did not warrant injunctive relief in this case. (p. 10.) more or view all topics or full text.	44	94	11/07/19
I062H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119) 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief The presence of any one of the countervailing indicia of lawful intent could well establish that a union’s series of strikes was motivated by distinct, lawful reasons. Here, the fact that the Unions’ walkouts occurred under circumstances indicating several indicia of lawful intent strongly militated against the necessary finding of reasonable cause, i.e., it was far from “probable that a violation of the Act has been committed.” [Citation.] Conversely, direct, incontrovertible evidence of unlawful intent could well require an intermittent strike finding even in the presence of these and other indicia of lawful intent. (pp. 9-10.) more or view all topics or full text.	44	94	11/07/19
I062H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119) 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief “PERB cannot seek an injunction unless it finds (1) ‘reasonable cause’ to believe an unfair practice has been or will be committed; and (2) that injunctive relief is ‘just and proper.’” (San Mateo County Superior Court (2019) PERB Order No. IR-60-C, p. 2, citing Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 895-896.) (p. 2.) more or view all topics or full text.	44	94	11/07/19