| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 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 found that the record of five short-duration strikes over the course of one year did not provide reasonable cause to believe the Unions’ presumptively protected activities were unlawfully intermittent because the walkouts were: (1) called by different bargaining units, with others going out in sympathy; (2) in part precipitated or provoked by a public employer’s alleged unfair conduct; (3) preceded by a notice period of sufficient length to permit the University to prepare for continued operations during the strike; and (4) separated by variable intervals of time sufficient to dispel the notion that the Unions planned their activities in advance or embarked on a coordinated strategy of rolling economic strikes. While the presence of any of these indicia may be sufficient to rebut an intermittent strike allegation, insofar as the Unions’ strikes presented all four, there was no reasonable cause to believe their activities were unlawful. Finally, even if there were reasonable cause to believe an unfair practice occurred, the University’s contention that these strikes would cause disproportionate economic harm did not demonstrate that an injunction would be just and proper. (pp. 2-3.) 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)
1204.03000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
The statutory limitation on the Board’s remedial authority to award damages should it later conclude that the Unions’ strikes were unlawful in no way renders meaningless the Board’s procedures or power in general. For instance, if the University’s charges merit complaints and its evidence ultimately supports an unfair practice finding, the Board would, at a minimum, order each offending party to cease and desist its unlawful conduct. In reminding the Board that it lacks the power to issue strike damages, Government Code section 3563.3 does not undermine the efficacy of such customary remedies or otherwise alter the equitable balance it must strike in these cases. Likewise, the Legislature’s limitation of the Board’s authority does not create a new expansive mandate to seek injunctions against striking employees and their organizations. (pp. 11-12.) 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)
804.03000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Strike as Unlawful Pressure Tactic
Like any type of protected concerted activity, strikes require a certain degree of coordination to be successful. That degree necessarily increases when unions commit to giving the employer advanced notice of their intent to strike, as occurred here. The Board could not understand the University’s charge to have alleged that any and all such coordination was evidence of an unlawful pressure tactic because such an assertion would undermine the very possibility of concerted activities like sympathy strikes, which are clearly protected under PERB law. (p. 7, fn. 6.) 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)
804.03000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Strike as Unlawful Pressure Tactic
The Board relied on facts developed in the General Counsel’s investigation of the University’s injunction request and supporting unfair practice charges to assess the existence of reasonable cause. In doing so, the Board found no pattern of conduct that it believed constituted an unlawful pressure tactic. First, the first three strikes were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. Second, the two most recent of these strikes were preceded by the filing of various unfair practice charges. There is no question that a strike provoked by an employer’s unfair labor practices is protected at any time it occurs during the negotiating process. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. Third, the Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. Finally, a significant period of time elapsed between each strike, indicating again that the Unions did not intend to pick and choose when to work without any regard for the safe and efficient operation of the workplace. (pp. 7-9.) 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)
301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General
When an employer refuses to yield, whether on questions concerning its bargaining proposals or alleged unfair conduct, a strike becomes the ultimate, and often only, recourse available to employees. While the right to strike may be qualified depending on the circumstances, e.g., pre- or post-impasse, the protected activity itself is always meant to impose a cost on the employer. In other words, every strike is meant to inflict economic harm on the employer to achieve the union’s collective goals. If the Board were to accept the notion that a protected strike becomes unprotected (or unlawful, as the University here contends) simply because it threatens “disproportionate” economic harm to the employer, then public employees would have the right to engage only in those work stoppages that their employers are economically prepared and willing to resist. This would blunt the ultimate tool for forcing the employer to bargain in good faith, and for no other purpose than to save employers money. Furthermore, it would encourage a rule which focuses on the proportionality of harm suffered by the employer versus striking employees, without any metric to consider the risks and costs borne by individuals. In other words, far from encouraging a resolution, an injunction to prevent vigorous strike activity would tend only to prolong the parties’ dispute. (pp. 10-11.) 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)
301.05000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Intermittent
Like any type of protected concerted activity, strikes require a certain degree of coordination to be successful. That degree necessarily increases when unions commit to giving the employer advanced notice of their intent to strike, as occurred here. The Board could not understand the University’s charge to have alleged that any and all such coordination was evidence of an unlawful pressure tactic because such an assertion would undermine the very possibility of concerted activities like sympathy strikes, which are clearly protected under PERB law. (p. 7, fn. 6.) 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)
301.10000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Notice of Intent to Strike
The Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. While such notice is not statutorily required, the fact that the Unions gave more than 10-days’ notice for each strike indicates that they did not convert their protected activities into an unlawful pressure tactic. At the very least, this advance notice was completely inconsistent with the notion that these were “‘hit and run’ strikes engaged in as part of a planned strategy intended ‘to harass the company into a state of confusion[.]’” [Citation.] (p. 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)
301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice
Two out of five strikes at issue in employer’s request for injunctive relief were preceded by the filing of various unfair practice charges. There is no question that a strike provoked by an employer’s unfair labor practices is protected at any time it occurs during the negotiating process, and the Board is not at liberty to ignore such charges when faced with a request to enjoin strike activity. Thus, the Board could not infer an unlawful intent to engage in an intermittent strike when the employer’s alleged unfair practices were squarely at issue. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. (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)
301.06000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Sympathy
Three out of five strikes at issue in employer’s request for injunctive relief were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. This series of primary and sympathy strikes could as easily be characterized as a reflection of the University’s decision to bargain separately with each bargaining unit. That is, each bargaining unit maintained a separate and distinct right to take what actions it considered necessary to protect its members and position at the bargaining table. The Board would not infer impermissible coordination based solely on the University’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. (pp. 7-8.) 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)
301.05000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Intermittent
The Board relied on facts developed in the General Counsel’s investigation of the University’s injunction request and supporting unfair practice charges to assess the existence of reasonable cause. In doing so, the Board found no pattern of conduct that it believed constituted an unlawful pressure tactic. First, the first three strikes were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. Second, the two most recent of these strikes were preceded by the filing of various unfair practice charges. There is no question that a strike provoked by an employer’s unfair labor practices is protected at any time it occurs during the negotiating process. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. Third, the Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. Finally, a significant period of time elapsed between each strike, indicating again that the Unions did not intend to pick and choose when to work without any regard for the safe and efficient operation of the workplace. (pp. 7-9.) 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)
301.05000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Intermittent
The Board found that the record of five short-duration strikes over the course of one year did not provide reasonable cause to believe the Unions’ presumptively protected activities were unlawfully intermittent because the walkouts were: (1) called by different bargaining units, with others going out in sympathy; (2) in part precipitated or provoked by a public employer’s alleged unfair conduct; (3) preceded by a notice period of sufficient length to permit the University to prepare for continued operations during the strike; and (4) separated by variable intervals of time sufficient to dispel the notion that the Unions planned their activities in advance or embarked on a coordinated strategy of rolling economic strikes. While the presence of any of these indicia may be sufficient to rebut an intermittent strike allegation, insofar as the Unions’ strikes presented all four, there was no reasonable cause to believe their activities were unlawful. Finally, even if there was reasonable cause to believe an unfair practice occurred, the University’s contention that these strikes would cause disproportionate economic harm did not demonstrate that an injunction would be just and proper. (pp. 2-3.) 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)
301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General
When an employer refuses to yield, whether on questions concerning its bargaining proposals or alleged unfair conduct, a strike becomes the ultimate, and often only, recourse available to employees. While the right to strike may be qualified depending on the circumstances, e.g., pre- or post-impasse, the protected activity itself is always meant to impose a cost on the employer. In other words, every strike is meant to inflict economic harm on the employer to achieve the union’s collective goals. If the Board were to accept the notion that a protected strike becomes unprotected (or unlawful, as the University here contends) simply because it threatens “disproportionate” economic harm to the employer, then public employees would have the right to engage only in those work stoppages that their employers are economically prepared and willing to resist. This would blunt the ultimate tool for forcing the employer to bargain in good faith, and for no other purpose than to save employers money. Furthermore, it would encourage a rule which focuses on the proportionality of harm suffered by the employer versus striking employees, without any metric to consider the risks and costs borne by individuals. In other words, far from encouraging a resolution, an injunction to prevent vigorous strike activity would tend only to prolong the parties’ dispute. (pp. 10-11.) more or view all topics or full text. |
44 | 94 | 11/07/19 |
| 2540Ma |
City and County of San Francisco
1107.08000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Proceedings During or After Court Enforcement, Review, or Remand
In accordance with the Court of Appeal’s opinion and order setting aside parts of City & County of San Francisco (2017) PERB Decision No. 2540-M, the Board vacated the discussion and related conclusions of law in PERB Decision No. 2540-M, addressing the first, second, and fourth sentences of City Charter section 8A.104, subdivision (o), and the first three sentences of City Charter section 8A.104, subdivision (q). The Board also vacated its original order and issued a modified order. more or view all topics or full text. |
44 | 97 | 11/15/19 |
| 2700M |
County of Riverside
1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated
The Board has discretion to grant or deny requests to withdraw and dismiss cases pending before the Board itself. While the Board has on occasion denied a request to withdraw an unfair practice charge, e.g., in order to avoid infringing on statutory rights, no such circumstances appeared to be present here. Rather, the Board found withdrawal of the parties’ exceptions and cross-exceptions and request for dismissal of the complaint and underlying unfair practice charge pursuant to a settlement agreement between the parties to be consistent with the Meyers-Milias-Brown Act’s (MMBA) purpose of promoting harmonious labor relations. Moreover, none of the settlement’s terms required employees to release future rights, such as the right to file PERB charges, or otherwise offended the policies and purposes of the MMBA. (pp. 2-3.) more or view all topics or full text. |
44 | 149 | 03/12/20 |
| 2708E |
Solano County Community College District
1100.06000: CASE PROCESSING PROCEDURES; CHARGE; Withdrawal of Charge
In this case (like most cases except those involving a continuing violation), the distinction between a withdrawal with prejudice and one without prejudice is meaningless because the underlying claims were already more than six-months old at the time of the withdrawal, and thus could not form the basis for a new complaint. (p. 3.) more or view all topics or full text. |
44 | 162 | 04/16/20 |
| 2708E |
Solano County Community College District
1100.06000: CASE PROCESSING PROCEDURES; CHARGE; Withdrawal of Charge
The Board found that the ALJ’s notice of withdrawal did not comply with the express requirements of PERB Regulation 32625 because it failed to indicate whether the withdrawal was with or without prejudice. This was clear error insofar as the regulation gave the ALJ no authority to grant withdrawal of the charge without such a determination. At a minimum, the ALJ should have solicited charging party’s intent and the employer’s position before granting the withdrawal. Similarly, when the employer brought the error to her attention, the ALJ should have undertaken the required determination and corrected the notice to comply with the regulation. (p. 3.) more or view all topics or full text. |
44 | 162 | 04/16/20 |
| A475Ea |
Bellflower Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB precedent requires that, to obtain monetary sanctions, including attorney fees or other reasonable litigation expenses, the moving party must demonstrate that the claim, defense, motion or other action or tactic was “without arguable merit” and pursued in “bad faith.” [Citations.] As interpreted by most appellate courts, the standard for determining whether an action or litigation tactic is “frivolous,” as opposed to merely meritless, is whether the claim, defense, action or tactic is so manifestly erroneous that no prudent attorney would have filed or maintained it. Here, the employer’s request for reconsideration was without arguable merit: it failed to comply with the basic requirements of the reconsideration regulation, ignored recent PERB decisional law directly on point, and included no serious argument for extending, modifying, or reversing existing law or for establishing new law to permit reconsideration of administrative determinations. The Board also found the request was filed in bad faith based on the fact that the employer has engaged in delaying tactics before as well as the fact that in this particular case the District sought reconsideration of a decision that granted it the very relief it requested. The District’s refusal to take yes for an answer, in this context, is clear and convincing evidence that its request for reconsideration was frivolous and “intended to cause unnecessary delay.” [Citations.] Thus, the Board ordered the employer to reimburse the union for reasonable attorney fees for the preparation and filing of its response to the employer’s request for reconsideration. (pp. 4-5.) more or view all topics or full text. |
44 | 98 | 11/12/19 |
| A475Ea |
Bellflower Unified School District
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
Because “the reconsideration procedure is limited to Board decisions based on a proposed decision and developed factual record following a formal hearing or stipulated record” a party may not seek reconsideration of a decision arising from an administrative appeal. [Citation.] (p. 3.) more or view all topics or full text. |
44 | 98 | 11/12/19 |
| A475Ea |
Bellflower Unified School District
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
Because of PERB Regulation 32410’s “extraordinary circumstances” requirement, the Board applies the regulatory criteria strictly when reviewing a request for reconsideration. There are only two grounds for reconsideration authorized by PERB Regulations: “(1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party [requesting reconsideration] has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence.” [Citations.] The “extraordinary circumstances” warranting reconsideration are thus limited to asserted errors or omissions of fact. Purported errors of law, including the Board’s alleged improper application of its own Regulations, or a reversal of Board precedent, are not grounds for reconsideration. A party therefore may not use the reconsideration process to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to “try again.” [Citations.] (pp. 2-3.) more or view all topics or full text. |
44 | 98 | 11/12/19 |
| A475E |
Bellflower Unified School District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
“PERB recognizes and adheres to the policy that litigation shall not be had in a piecemeal fashion, so that when a party has a particular claim or defense in a pending cause of action, it must assert it in those proceedings, or it will be waived.” [Citation.] Since the employer never raised the issue of an allegedly indispensable party during the proceedings leading to the Board’s previous decision and order, it forfeited that claim and was barred from raising it during compliance proceedings. (p. 13.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
| A475E |
Bellflower Unified School District
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
In direct response to the employer’s contention that the affected employees should have obtained employment from the unlawful subcontractor, it should be self-evident that a wrongfully terminated employee was not required to break with her union or violate her union convictions under the guise of mitigation. Here, the union correctly protested the employer’s unlawful decision to subcontract school bus services to another school district, therefore the affected employees were under no obligation to abandon their union by accepting employment with the unlawful subcontractor. Indeed, the notion that the duty of mitigation required the affected employees to accept employment from the subcontractor under these circumstances is analogous to a suggestion that unlawfully fired workers must cross a picket line to maintain interim employment and become strikebreakers or else forfeit their right to backpay. The Board rejected such a notion as antithetical to the rights guaranteed by EERA. (p. 11.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
| A475E |
Bellflower Unified School District
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
A finding by the Board that an unfair labor practice was committed is presumptive proof that at least some backpay is owed. The burden of establishing that employees failed to mitigate their economic losses rests squarely on the employer that committed the wrongful acts giving rise to those losses. “To establish a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting. Claimants are not expected to seek a job more onerous that [sic] the one from which they were removed but rather are expected to seek a substantially equivalent job.” [Citation.] A “wrongfully-discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the [employee] be successful in mitigating the damage.” [Citation.] It is well established that “any uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.” [Citation.] (p. 10.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
| A475E |
Bellflower Unified School District
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
In light of the employer’s demonstrated proclivity to delay compliance through frivolous objections and legal maneuvers, the Board delegated to the assigned hearing officer the authority to impose sanctions on the employer for pursuing any claim, defense, motion or other action or tactic in the compliance proceedings that was without arguable merit and pursued in bad faith. (p. 14.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
| A475E |
Bellflower Unified School District
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
In response to the employer’s argument that it was not practical to rescind its unlawful subcontract before it expired by its own terms because rescission would lead to litigation between the employer and the subcontractor, the Board concluded that the employer would have to support that contention at hearing with evidence that it had no legal opportunity to terminate the contract before the expiration date. (p. 12.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
| A475E |
Bellflower Unified School District
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
Since the parties contested, among other matters, the amount of backpay the employer owed the affected employees, and whether the employer complied with the requirement to rescind the unlawful subcontract “as soon as practical,” the Board remanded the matter to the Office of the General Counsel for an expedited hearing on all outstanding compliance issues. The Board emphasized that the purpose of the hearing would be to determine whether, or to what extent, the District had complied with the Board’s order in Bellflower Unified School District (2017) PERB Decision No. 2544. It was not an invitation to relitigate the merits of the underlying decision and order. (p. 9.) more or view all topics or full text. |
44 | 64 | 09/13/19 |
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.
