Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
A475E	Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Here, the Office of the General Counsel’s effort to determine compliance through an exchange of correspondence, which in most cases is sufficient, was understandable. In the particular circumstances of this case, however, the better course would have been to issue a notice of hearing, summon the parties to present their evidence on contested issues, and thus obtain a complete record with the greatest possible speed. First, determination of disputed backpay amounts owed to affected employees, including whether employees failed to mitigate their damages, is well-suited for resolution at a hearing, where PERB Regulations give the parties and the hearing officer ample means to obtain the information necessary to make an accurate and complete determination of the respondent’s obligations. Second, a hearing becomes all the more necessary when the Office of the General Counsel believes, as was the case here, that the respondent is engaged in a pattern of delay or is otherwise acting to evade its obligations under a final Board order. Rather than enable obfuscation of the facts with endless rounds of unsworn correspondence, a formal hearing requires the respondent to put its evidence on the record under penalty of perjury. Finally, a hearing permits the hearing officer to craft a proposed order based on findings of fact and conclusions of law that articulates with specificity the steps the respondent must take to discharge its legal obligations. (pp. 8-9.) 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 Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 8.) more or view all topics or full text.	44	64	09/13/19
A478E	Los Angeles Unified School District 1109.03000: CASE PROCESSING PROCEDURES; ISSUES ON APPEAL; Standard of Review/Deference to Board Decision When the Board decides an appeal of a dismissal, it applies a de novo standard of review and is free to reach different legal determinations than those in the dismissal. (p. 4.) more or view all topics or full text.	44	163	04/16/20
A478E	Los Angeles Unified School District 1100.03000: CASE PROCESSING PROCEDURES; CHARGE; Standing A person or entity’s standing depends on the legal claim at issue in the charge. The Board has never interpreted its statutes or regulations to mean that a nonexclusive representative lacks standing to pursue an unfair practice charge alleging a violation of EERA section 3543.5, subdivision (a), which makes it unlawful for a public school employer to “[i]mpose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.” This is because a public employer’s duty to refrain from the conduct prohibited by section 3543.5, subdivision (a) is not dependent on the existence of an exclusive representative. Nor does such a charge interfere with the rights of an exclusive representative to bargain on behalf of the unit. [Citation.] Thus, the presence of an exclusive representative does not divest employees or their nonexclusive representative of the right to file charges alleging violations of employees’ individual statutory rights. The rights at issue are individual rights that aggrieved parties may assert without regard to the existence of an exclusive representative. (pp. 5-6.) more or view all topics or full text.	44	163	04/16/20
2723E	Lodi Unified School District 1404.03000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; General Principles of Contract Interpretation By the plain language, the District appeared to replace the provisions of one provision—requiring employees over the cap to submit vacation plans and providing that supervisors may schedule vacation on behalf of employees—with a provision to cash out balances over the cap on an annual basis. CSEA was reasonable in its belief that the plain language spoke for itself, and the District should reasonably have anticipated this understanding. In such circumstances, the District negligently agreed to the terms of the agreement, but CSEA was not equally negligent, and the District is bound by its agreement. (See Merced County Sheriff’s Employee’s Association v. County of Merced (1987) 233 Cal.Rptr. 519, 673.) more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 1404.03000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; General Principles of Contract Interpretation The parties’ contract language clearly and unambiguously provided that (1) employees maintain the right to schedule their vacation, subject to work requirements as determined by their supervisors; and (2) at the conclusion of each fiscal year, the District must pay out accrued but unused vacation time over the maximum carryover amount, except that employees experiencing an illness or injury may exceed the carryover cap if their illness or injury prevented them from taking vacation during the fiscal year. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.) more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 1404.03000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; General Principles of Contract Interpretation “PERB may interpret contract language if doing so is necessary in deciding an unfair practice charge case.” (County of Ventura (2007) PERB Decision No. 1910-M, p. 9.) Traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB Decision No. 313, pp. 15-16.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “[T]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.) Thus, the Board must avoid interpreting contract language in a way which leaves a provision without effect. (State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.) more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 602.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Unwritten Past Practice The Board declined to determine whether the parties’ past practice was sufficient to meet the independent standard for a unilateral change, because the inquiry is fundamentally different when the parties’ past practices are considered to help interpret the meaning of contract language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In such circumstances, “the past practice is but one tool for interpreting the contract, and therefore need not be as definitive as when it is defining the status quo in the absence of a contract term.” (Id. at p. 22.) The Board found the District’s conduct—cashing out vacation balances over the maximum carryover amount twice in the year following ratification—indicative of the meaning of the CBA. more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy The parties’ contract language clearly and unambiguously provided that (1) employees maintain the right to schedule their vacation, subject to work requirements as determined by their supervisors; and (2) at the conclusion of each fiscal year, the District must pay out accrued but unused vacation time over the maximum carryover amount, except that employees experiencing an illness or injury may exceed the carryover cap if their illness or injury prevented them from taking vacation during the fiscal year. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.) more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy “PERB may interpret contract language if doing so is necessary in deciding an unfair practice charge case.” (County of Ventura (2007) PERB Decision No. 1910-M, p. 9.) Traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB Decision No. 313, pp. 15-16.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “[T]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.) Thus, the Board must avoid interpreting contract language in a way which leaves a provision without effect. (State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.) more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General It is unlawful for a public school employer to “[r]efuse or fail to meet and negotiate in good faith with an exclusive representative.” (EERA, § 3543.5, subd. (c).) A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove: (1) the employer took action to change policy; (2) the change in policy concerned a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action has a generalized effect or continuing impact on terms and conditions of employment. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9.) The Board has recognized three general categories of unilateral changes: (1) changes to the parties' written agreement; (2) changes in established past practice; and (3) newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) The fundamental dispute between the parties in Lodi Unified School District centers on the first element of the prima facie case: whether the District took actions to change policy, either by changing the terms of the agreement or altering its past practice regarding vacation scheduling and cash out of vacation hours over the maximum carryover amount. more or view all topics or full text.	44	189	05/26/20
2723E	Lodi Unified School District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards The District’s ongoing enforcement of an interpretation contrary to the parties’ agreement concurrently violates EERA 3543.5, subdivision (a) and EERA 3543.5, subdivision (b) because it necessarily interferes with employees in the exercise of protected rights by denying the statutory right of an exclusive representative to represent unit members in their employment relations. (San Francisco Community College District (1979) PERB Decision No. 105, pp.12-13.) more or view all topics or full text.	44	189	05/26/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 505.05000: EMPLOYER DISCRIMINATION; DEFENSES; Dishonesty or Disloyalty to Employer * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Employer did not meet its burden of proving it would have terminated employee even if he had not engaged in protected activities since employer did not adequately establish that employee engaged in the misconduct he was accused of. (Adopting proposed decision at p. 24.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M, where, on remand from the Court of Appeal, the Board modified its remedial order to no longer require the City to expunge from its records, including the subject employee’s personnel file, certain documents related to the investigation and the employee’s termination. * * * Appropriate remedy for unlawful termination includes a cease and desist order. (p. 15.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M, where, on remand from the Court of Appeal, the Board modified its remedial order to no longer require the City to expunge from its records, including the subject employee’s personnel file, certain documents related to the investigation and the employee’s termination. * * * Appropriate remedy for unlawful termination is appropriate make-whole relief including backpay. (p. 15.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 1201.02000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Reinstatement * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M, where, on remand from the Court of Appeal, the Board modified its remedial order to no longer require the City to expunge from its records, including the subject employee’s personnel file, certain documents related to the investigation and the employee’s termination. * * * Appropriate remedy for unlawful termination is appropriate make-whole relief including reinstatement. (p. 15.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Timing of employer’s investigation was suspicious where managers knew of employee’s alleged wrongdoing and did not take any immediate action to investigate the matter. Managers did not mention employee’s alleged misconduct to department chief until nearly three months later, around the same time employee became engaged in a dispute about light duty with the department. (Adopting proposed decision at p. 18.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Employer’s investigation was neither independent nor thorough where interviewee selection process only involved finding department employees of different ranks and excluded people not employed at the department who likely had valuable details about employee’s condition and the reasonableness of his actions. Employer’s investigator made no attempt to speak with employee’s physician or to examine employee’s medical records. Since one of the charges was that employee violated a prohibition against engaging in physical activities while on disability leave, understanding what activities, if any, employer’s doctors considered appropriate seemed to be not only an obvious, but a critical component of employer’s investigation. (Adopting proposed decision at p. 17.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Because PERB assesses all facts and circumstances relevant to an employer’s motivation, the Board may also consider, as part of the overall set of facts, whether the employer’s departure from the law or its own Skelly practices contribute to evidence of unlawful motivation. Although the Board expressed no opinion and made no finding as to whether the employer violated constitutionally-mandated pre-deprivation safeguards required under Skelly, as the issue was not before it, the Board noted the following facts: manager initiated the underlying investigation into employee, was substantially involved in determining which witnesses the investigator should interview, issued the Intent of Notice to Terminate, served as the Skelly officer without any other manager reviewing the matter at the pre-deprivation stage, and ultimately issued the Notice of Termination. (pp. 14-15.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.06000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Meritorious or Satisfactory Work Record; Prior Promotion or Wage Increase * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Employer’s decision to proceed directly to termination was striking when considered against the background of employee’s good standing in the department. Employee had recently received an overall rating of excellent in his performance evaluation, and had been encouraged by his immediate supervisor to take a promotional test. (p. 14.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.02000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Disparate Treatment * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Employer did not rebut the employee’s examples of disparate treatment and instead relied on comparators that were vague and/or dissimilar. (pp. 13-14.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 504.02000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Disparate Treatment * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * The weight of the evidence suggested that employee’s termination was inconsistent with the employer’s historical use of a progressive discipline policy on both informal and formal levels. (p. 13.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 300.13000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Holding Union Office * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Association President’s vigorous and vocal activism was exactly the type of activity Meyers-Milias-Brown Act section 3502.1 was intended to protect. (p. 12.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 300.13000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Holding Union Office * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * The Meyers-Milias-Brown Act section 3502.1’s prohibition against retaliation includes an employee’s service as an executive officer of a union, membership on an exclusive representative’s bargaining team, and participation in a joint labor-management committee. (p. 11.) more or view all topics or full text.	44	131	01/30/20
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 300.13000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Holding Union Office * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * Employee’s service as Association President was protected activity under the Meyers-Milias-Brown Act. (p. 11.) more or view all topics or full text.	44	131	01/30/20