| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2674Ma |
Orange County Employees Association (Hamilton)
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
Arguing on reconsideration that the Board’s underlying decision contained prejudicial errors of fact, Petitioner claimed the Board’s factual findings were speculative because they were based on inferences drawn from evidentiary documents. However, PERB may draw reasonable inferences from the record. Petitioner’s failure to elicit testimony clarifying those documents or introduce other evidence supporting her position during PERB’s hearing process do not constitute grounds for reconsideration. (pp. 3-4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
The grounds for reconsideration are limited to claims that (1) the Board’s decision contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. (p. 2.) A party 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.” (p. 5.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. Petitioner cannot do so on reconsideration unless the evidence is newly discovered and supported by a declaration establishing several criteria required under PERB Regulation 32410. (pp. 4-5.) The Board denied the request for reconsideration because it was not accompanied by such a declaration and, furthermore, the newly-submitted evidence was available at the time of the hearing. (p. 5.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Arguing on reconsideration that the Board’s underlying decision contained prejudicial errors of fact, Petitioner claimed the Board’s factual findings were speculative because they were based on inferences drawn from evidentiary documents. However, PERB may draw reasonable inferences from the record. Petitioner’s failure to elicit testimony clarifying those documents or introduce other evidence supporting her position during PERB’s hearing process do not constitute grounds for reconsideration. (pp. 3-4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The grounds for reconsideration are limited to claims that (1) the Board’s decision contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. (p. 2.) A party 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.” (p. 5.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1204.04000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Reimbursement of Dues, Fees and Exactions to Employees; Union Liability
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1204.01000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; In General
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. Petitioner cannot do so on reconsideration unless the evidence is newly discovered and supported by a declaration establishing several criteria required under PERB Regulation 32410. (pp. 4-5.) The Board denied the request for reconsideration because it was not accompanied by such a declaration and, furthermore, the newly-submitted evidence was available at the time of the hearing. (p. 5.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
Arguing on reconsideration that the Board’s underlying decision contained prejudicial errors of fact, Petitioner claimed the Board’s factual findings were speculative because they were based on inferences drawn from evidentiary documents. However, PERB may draw reasonable inferences from the record. Petitioner’s failure to elicit testimony clarifying those documents or introduce other evidence supporting her position during PERB’s hearing process do not constitute grounds for reconsideration. (pp. 3-4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
The grounds for reconsideration are limited to claims that (1) the Board’s decision contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. (p. 2.) A party 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.” (p. 5.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2674Ma |
Orange County Employees Association (Hamilton)
800.01000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; In General; Prima Facie Case
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text. |
44 | 108 | 12/11/19 |
| 2712M |
City and County of San Francisco
1103.02000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Material factual disputes as to the employer’s motive or motives in not promoting an employee who had engaged in protected activity required resolution at a formal hearing. Among other issues, at hearing the parties would be able to contest evidentiary items such as an organizational chart allegedly showing pre-interview bias, as well as any evidence regarding the relative skills, experience, references, or interview performances of the interviewees. The weight of the overall record would ultimately determine the import of these and other factors. (pp. 23-25.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
1103.02000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
PERB assumes that charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. At this stage, PERB generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. It is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), or contested, colorable legal theories, OGC should issue a complaint and generally a formal hearing is needed. Mere legal conclusions are insufficient to state a prima facie case. However, where a material factual dispute turns on the respondent’s state of mind, we take into account that motive is generally within respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. We therefore impose on charging party a relatively low burden to allege facts tending to show the requisite state of mind. (pp. 2-3.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
1100.08000: CASE PROCESSING PROCEDURES; CHARGE; Pleading Requirements
PERB has relatively few formal pleading rules, though PERB Regulation 32615, subdivision (a)(5) requires that a charging party should provide a clear and concise statement of the facts alleged to constitute an unfair practice. OGC need not scour charges looking for obscure deviations from policy that a charging party fails to point out, but PERB Regulation 32620, subdivision (b)(1) requires OGC to assist the charging party in stating the information that Regulation 32615 requires. These standards apply irrespective of parties’ legal sophistication or whether they are represented by counsel. PERB’s efforts to provide equal access to justice to all are evident, for instance, in its decision in National Union of Healthcare Workers (2012) PERB Decision No. 2249-M. There, PERB noted that while it is useful to explain to a charging party that the goal of an unfair practice charge should be to specify the “who, what, when, where and how” of the charge, that formulation is not a “litmus test” or “hurdle over which every charging party must leap at the risk of dismissal.” (Id. at p. 15.) Sound public policy reasons support PERB’s preference for hearing cases on their merits, notwithstanding technical non-compliance with matters of form. “We are sensitive to the fact that PERB is not a court, but an administrative agency, and that the formalities of practice and procedure in the judicial system are not always appropriate for fulfilment of PERB’s mission, which includes assisting parties and representatives who are laypersons.” (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 28.) (p. 22., fn. 7.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal
In resolving an appeal of a dismissal, the Board reviews OGC’s decision de novo. PERB assumes that charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. At this stage, PERB generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. It is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), or contested, colorable legal theories, OGC should issue a complaint and generally a formal hearing is needed. Mere legal conclusions are insufficient to state a prima facie case. However, where a material factual dispute turns on the respondent’s state of mind, we take into account that motive is generally within respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. We therefore impose on charging party a relatively low burden to allege facts tending to show the requisite state of mind. (pp. 2-3.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
If the charging party meets its burden to establish each of the elements of a prima facie case of retaliation, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (pp. 15-16.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, it has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (p. 21.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
Temporal proximity or lack thereof is rarely the sole determinant of nexus. (p. 17.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
504.01000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Union’s allegations regarding the employer’s unusual, discriminatory, or otherwise suspicious conduct surrounding job reclassification constituted an adequate factual basis to state a prima facie case that the employer may have been substantially motivated by unlawful animus in its later adverse actions against employee. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17 [earlier events are relevant in assessing a respondent’s motive]; County of Santa Clara (2019) PERB Decision No. 2629-M, adopting proposed decision at p. 30 [“Context is always relevant in determining motive.”].) (pp. 26-27.) Although employer’s issuance of a performance improvement plan and related written warning and letter of instruction occurred more than six months prior to the amended charge, those actions likely bear on the ultimate determination of employer motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17.) However, PERB did not consider whether the complaint should allege those earlier adverse actions to constitute MMBA violations, because they appeared to have occurred outside the six-month statute of limitations. (p. 20, fn. 4.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations
Written warning and performance improvement plans were adverse actions. (p. 20.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
| 2712M |
City and County of San Francisco
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
The Office of the General Counsel correctly found that union alleged the employer took adverse actions against employee by not promoting her to an open, more highly paid position. (p. 20.) more or view all topics or full text. |
44 | 173 | 05/06/20 |
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.
