| Decision | Description | PERC Vol. | PERC Index | Date |
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608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To the extent the employer contended that its decision to make the contested schedule changes did not represent a change in policy, but simply a reversion to the parties’ memorandum of understanding, that argument is appropriately framed as an affirmative defense, rather than a negation of the change element of the union’s prima facie case of a unilateral change. (p. 12, fn. 5.) more or view all topics or full text. |
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603.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The Board found that the employer’s e-mail about impending schedule changes, which it sent directly to union members during the pendency of successor contract negotiations, unlawfully bypassed the union. The problem with the e-mail was twofold: first, it dealt with a bargainable topic while ignoring the union and instead directly and exclusively addressing employees. Second, the timing of the e-mail jeopardized the unit members’ perception of the union’s authority precisely at a time such authority was critical, as the tentative agreement had yet to be ratified. Similarly, a manager’s meeting with union-represented employees about the schedule changes prior to the conclusion of successor contract negotiations had the effect of undermining the union’s authority as the exclusive representative by suggesting that employees could communicate directly with the employer about policy changes within the scope of representation. This action hampered the union’s ability to fully meet and confer with the employer during the unfinished negotiations process. (pp. 22-23.) more or view all topics or full text. |
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603.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; In General
An employer’s duty to bargain in good faith requires that it provide the exclusive
representative with notice and an opportunity to negotiate in good faith over matters
within the scope of representation. Consistent with the principle of exclusivity, an
employer may not communicate directly with employees to undermine or derogate the
representative’s exclusive authority to represent unit members. [Citations.] A charging
party may demonstrate that an employer has unlawfully bypassed the exclusive
representative by showing that the employer dealt directly with its employees to create
a new policy of general application, or to obtain a waiver or modification of existing
policies applicable to those employees. [Citations.] (p. 22.) more or view all topics or full text. |
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602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
An employer commits a per se violation of its duty to meet and confer when it fails to afford the employees’ representative reasonable advance notice and an opportunity to bargain before reaching a firm decision to establish or change a policy concerning a negotiable subject. To establish an unlawful unilateral action, the charging party must prove facts showing that: (1) the employer took action to change policy; (2) the change in policy concerns 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 had a generalized effect or continuing impact on terms and
conditions of employment. [Citations.] PERB has recognized three general categories of unlawful unilateral actions: (1) changes to the parties’ written agreements; (2) changes in established past practices; or (3) newly created policies, or application or enforcement of an existing policy in a new way. [Citations.] (pp. 10-11.) more or view all topics or full text. |
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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. |
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400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
The Board found that the employer unlawfully interfered with employees’ rights. To prove employer interference with protected rights, a charging party need only show that the employer has engaged in conduct that tends to or does result in at least slight harm to statutory rights. [Citation.] By communicating directly with unit employees on matters subject to bargaining before the tentative agreement was finalized, the employer interfered with the rights of unit employees to be fully represented by the union. (p. 23.) more or view all topics or full text. |
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| 2721M |
County of San Diego
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
In resolving an appeal of a dismissal, PERB reviews the Office of General Counsel’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore); City of San Jose (2013) PERB Decision No. 2341-M, p. 47.) When the sufficiency of a charge turns on interpreting a statute, contract, or employer rule or policy, the Board must accept the plain meaning of the language at issue if it is “clear and unambiguous on its face.” (County of Monterey (2018) PERB Decision No. 2579-M, p. 8.) If the language is ambiguous, “the parties must be afforded the opportunity to offer evidence in support of their respective interpretations at a formal hearing.” (Ibid.) At the charge investigation stage, “the appropriate question is not which of two competing interpretations . . . is the more plausible, but whether the language in dispute is reasonably susceptible to the charging party’s interpretation and whether that interpretation supports a viable, i.e., non-frivolous, theory of liability under the applicable PERB-administered statute.” (Ibid.) more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2721M |
County of San Diego
1101.04000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Continuing Violation
The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2721M |
County of San Diego
1101.04000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Continuing Violation
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. In unilateral change charges, the new wrongful act doctrine can apply if there are sufficient facts to support the exception, but the continuing violation doctrine does not apply. (See, e.g., City of Livermore (2014) PERB Decision No. 2396-M, p. 6 [“Under the applicable legal standard in unilateral change cases, the statute of limitations begins to run on the date that the charging party has actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy, provided that nothing subsequent to that date evinces a wavering of that intent.”].) more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2721M |
County of San Diego
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2721M |
County of San Diego
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
The Board clarified the continuing violation exception and the new wrongful act exception as those exceptions pertain to challenges to employer rules or policies. The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) The new wrongful act doctrine is a separate exception. It applies if the charging party alleges that within the limitations period the respondent committed a new wrongful act that goes beyond merely reiterating a prior policy. (City & County of San Francisco, supra, PERB Decision No. 2536-M, p. 15.) Normally, a charging party need not rely on the new wrongful act exception when it challenges a rule or policy based on an interference or discrimination theory, as the continuing violation doctrine usually applies in such cases. For claims based upon a unilateral change theory, in contrast, the new wrongful act doctrine tends to have more salience. more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2721M |
County of San Diego
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. more or view all topics or full text. |
44 | 187 | 05/22/20 |
| 2715M |
Eastern Municipal Water District
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
When resolving exceptions to a proposed decision, the Board applies a de novo standard of review. Under this standard, PERB reviews the entire record and is free to make different factual findings and reach different legal conclusions than those in the proposed decision. The Board may affirm, modify, or reverse the proposed decision, order the record re-opened for the taking of further evidence, or “take such other actions as it considers proper.” (PERB Reg. 32320, subd. (a)(2); Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1107.03000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Remand for Further Hearing; Remand to General Counsel
The Board found the proposed decision erred by (1) granting partial summary judgment to charging party despite the presence of material disputed facts; and (2) failing to apply the proper lenient amendment standard to the employer’s motion to amend its answer, and instead finding the equivalent of a waiver or technical default. The Board reversed the partial grant of summary judgment and remanded to the Division of Administrative Law to allow the District to amend its answer and then to resolve the merits of the parties’ claims and defenses based upon a full evidentiary record. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
A Board agent may reach a final decision on the merits without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; see, e.g., Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) PERB reversed the ALJ’s grant of partial summary judgment where there were facts in dispute that were material to the outcome. PERB noted that because discrimination and retaliation cases are inherently fact-specific, it is the rare case that can be decided on a dispositive motion. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. The Board found that the ALJ erred by denying employer’s motion to amend answer despite pendency of charging party’s summary judgment motion. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The Board contrasted the lenient amendment standard which arises before or during a hearing with the stricter unalleged violations standard which attaches after all parties have rested and the hearing is closed. A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1104.01000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; In General; Conduct of Hearing
An ALJ’s primary responsibility is to “[i]nquire fully into all issues and obtain a complete record upon which the decision can be rendered.” (PERB Reg. 32170.) Consistent with this mandate, ALJs should decide the merits of a case on a dispositive motion only when the facts truly are undisputed and the parties have had full opportunity to assert any claims or defenses that do not prejudice the other party. PERB reversed the ALJ’s grant of partial summary judgment where there were facts in dispute that were material to the outcome. PERB noted that because discrimination and retaliation cases are inherently fact-specific, it is the rare case that can be decided on a dispositive motion. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments
Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments
PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) The Board contrasted the lenient amendment standard which arises before or during a hearing with the stricter unalleged violations standard which attaches after all parties have rested and the hearing is closed. A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2715M |
Eastern Municipal Water District
1103.03000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Generally, “[a]dministrative proceedings are not bound by strict rules of pleading.” (City of Davis (2018) PERB Decision No. 2582-M, p. 11, fn. 5, quoting Pacific Gas & Electric Co. v. Public Utilities Com. (2015) 237 Cal.App.4th 812, 862.) Thus, PERB has observed that so long as a party is informed of the substance of the charge or defense and afforded the basic, appropriate elements of procedural due process, the party “cannot complain of a variance between administrative pleadings and proof.” (City of Roseville (2016) PERB Decision No. 2505-M, p. 23.) more or view all topics or full text. |
44 | 176 | 05/13/20 |
| 2680M |
County of Santa Clara
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
While the employer was entitled to unilaterally decide to staff a particular shift with a non-bargaining unit peace officer rather than a bargaining unit employee, it was required to provide the union with notice and an opportunity to bargain the reasonably foreseeable effects of its decision before it implemented the change. (p. 13.) more or view all topics or full text. |
44 | 86 | 10/31/19 |
| 2680M |
County of Santa Clara
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
Because decision bargaining and effects bargaining promote the same purpose, the harm that flows from a violation of the duty to bargain either is equally odious. Chief among these harms are disrupting a union’s ability to effectively represent its members and tipping the balance of power between management and employee organizations. (p. 13.) more or view all topics or full text. |
44 | 86 | 10/31/19 |
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.
