Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2712M	City and County of San Francisco 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General PERB uses an objective test to determine whether an employer’s action is adverse. The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. 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, and by issuing her a notice of intent to suspend. In addition, PERB found that union alleged the following adverse actions: (1) failing to encourage employee to take the promotional exam while encouraging her counterparts to do so; (2) failing to notify employee how she could be accommodated to interview for an open position during a period when she would be out on disability; and (3) delaying meeting with employee and declining to provide timely and accurate information concerning the recruitment. A reasonable person in the employee’s circumstances would view such alleged actions as adverse to her employment for multiple reasons, including because they impeded her efforts to progress in her career and suggested any effort on her part to apply for one of the promotional positions would be disfavored. (pp. 19-20.) more or view all topics or full text.	44	173	05/06/20
2712M	City and County of San Francisco 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case Absent evidence that a respondent took action that was facially or inherently discriminatory, a charging party has the burden to establish a prima facie case of retaliation by proving, via a preponderance of the evidence, that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (p. 15.) more or view all topics or full text.	44	173	05/06/20
2712M	City and County of San Francisco 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee speech is protected if it is “related to matters of legitimate concern to the employees as employees so as to come within the right to participate in the activities of the employee organization for the purpose of representation on matters of employer-employee relations.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15, quoting Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12.) more or view all topics or full text.	44	173	05/06/20
2712M	City and County of San Francisco 300.06000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Demands for Change in Working Conditions 300.13000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Holding Union Office Under Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, an employee’s role as a union officer constitutes protected activity irrespective of whether the employee exercises specific duties in that role. Thus, there is no categorical requirement that a union’s retaliation charge on behalf of a union officer necessarily allege specific duties the officer exercised. A charging party seeking to prove employer knowledge and nexus may be well-advised to introduce evidence of specific times a union officer exercised his or her role, but such evidence may not be needed if the charging party presents other strong evidence and the respondent is not able to present a persuasive non-discriminatory explanation for having taken adverse action. (p. 17.) more or view all topics or full text.	44	173	05/06/20
2712M	City and County of San Francisco 300.06000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Demands for Change in Working Conditions Union alleged that employee engaged in protected activity by e-mailing management representatives regarding health and safety concerns relating to working conditions. (p. 19.) more or view all topics or full text.	44	173	05/06/20
2712M	City and County of San Francisco 300.01000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; In General Union alleged that employee engaged in protected activity by serving as union chapter president, e-mailing employer regarding health and safety concerns, e-mailing employer to document an account of harassment and discrimination, requesting and receiving release time for bargaining training, seeking union assistance for a recruitment process, seeking to meet and confer with the employer over a job reclassification and its effects, and participating in successor contract negotiations between the union and the employer. (p. 19.) more or view all topics or full text.	44	173	05/06/20
2660S	State of California (Office of the Inspector General) 100.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA; In General A broad view of Dills Act section 3519 is consistent with the plain language of the statute. Unlike Dills Act section 3513, subdivision (j), section 3519 refers only to the “state” without either qualifying or defining the term. The Board therefore interprets “state” as meaning exactly what it says—the state itself. (pp. 16-17.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 100.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA; In General Section 3519 of the Dills Act makes it unlawful for the “state” to “interfere with, restrain, or coerce employees because of their exercise of rights guaranteed” to them under the Act and to “[d]eny to employee organizations rights guaranteed to them” under the Act. Although the Dills Act does not define the term “state” in this context, the Board has noted that “state” as used in section 3519 is broader than “state employer” in section 3513, subdivision (j). (p. 15.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated 100.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA; In General The Dills Act declares as its purpose the improvement of employer-employee relations through recognition of “the right of state employees to join organizations of their own choosing and be represented by those organizations in their employment relations with the state.” However, the Act does not expressly define “state” and indeed it uses three different terms to refer to state management entities: “state employer,” “employer,” and “state.” Although by appearances similar, these terms address separate subjects and are not synonymous. (p. 14.) more or view all topics or full text.	44	48	08/15/19
2669E	Contra Costa Community College District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is 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	66	09/17/19
2669E	Contra Costa Community College District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is 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	66	09/17/19
2669E	Contra Costa Community College District 300.04000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Individual/Concerted/Activities/Self-Representation EERA section 3543 guarantees covered employees the right to represent themselves in their employment relations. Thus, an employee does not need to prove that their conduct was related to collective activity to establish protected status under EERA. more or view all topics or full text.	44	66	09/17/19
2657M	County of Orange 1000.02164: SCOPE OF REPRESENTATION; Other The Board found that changes to an ordinance concerned only management’s direction to its legal counsel for the performance of legal services and are thus outside the scope of representation. more or view all topics or full text.	44	30	07/15/19
2657M	County of Orange 104.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD; Authority of Board In General; Validity and Application of Regulations (See also 102.01) While Government Code section 3511 excludes from PERB’s jurisdiction claims brought by Penal Code section 830.1 peace officers, PERB has jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent or seek to represent bargaining units composed partially or entirely of Penal Code 830.1 peace officers. more or view all topics or full text.	44	30	07/15/19
2660S	State of California (Office of the Inspector General) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech An employer’s expression of any views, argument, or opinion generally does not constitute or serve as evidence of an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit. This protection extends to an employer’s interpretation of the law provided that it is not such a misrepresentation of the law so as to constitute an illegal threat. (p. 34.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Section 3514.5 of the Dills Act states that the “initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.” The California Supreme Court has interpreted this rule to mean that PERB has “exclusive jurisdiction over activities arguably protected or prohibited by” the Act. [Citation.] Therefore, application of the doctrine of res judicata in this instance would be incongruous with the Legislature’s express intent to commit the questions posed in this unfair practice charge to PERB’s initial and exclusive jurisdiction. (p. 33, fn. 19.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General Court of Appeal decision involving an anti-SLAPP motion in a related state court action did not collaterally estop the Board from deciding whether correctional officers were entitled to representation under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256. In anti-SLAPP motions, the factual record is inherently limited because the filing of a notice of motion immediately suspends all discovery in the action, absent a court order. Accordingly, the union could not have fully litigated the Weingarten issue to the extent it did before PERB. (p. 32.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General Court of Appeal decision did not have preclusive effect because the court analyzed the correctional officers’ right to representation only under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256; it did not analyze their rights under the Dills Act and the more expansive highly unusual circumstances test articulated in Redwoods College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617. Accordingly, even if res judicata did apply, PERB would still be empowered to determine whether the officers were entitled to a representative under the Redwoods test. (p. 31.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General Res judicata gives conclusive effect to a former judgment in subsequent litigation involving the same controversy where the following elements are met: (1) a claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (p. 31.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances Under the circumstances—little to no advance notice of the interviews, no forewarning of the subject matter, and inadequate advisement as to how the Office of the Inspector General (OIG) would use the content of the interviews, all against the background of a historically tense relationship between the union and OIG—it was reasonable for the correctional officers who were summoned to interview to assume that no good could come from being singled out by OIG for a private, compulsory interview that, by all outward indications, was a formal investigation, regardless of OIG’s intention. To the officers, the interviews were indistinguishable from a formal investigation. (p. 30.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances Correctional officers had a right to representation due to the highly unusual circumstances of the Office of the Inspector General’s (OIG) interviews. Several officers declined to participate voluntarily in the interviews, leading OIG to compel their participation by serving each of them with a subpoena. OIG convened the meetings at officers’ jobsites, but in management or other private offices away from the employees’ ordinary worksites. Although OIG investigators are not in the same chain of command as officers, OIG’s role in the interviews lent them an aura of formality which predictably aroused the officers’ anxieties and suspicions. As one officer testified, formal interviews are a rare occurrence at the Department of Corrections and Rehabilitation. Another officer understood OIG’s function as investigating allegations of wrongdoing—even if his belief was unfounded given OIG’s limited statutory mandate—it informed the officer’s perspective that OIG’s involvement in an interview could portend a finding of misconduct. (pp. 29-30.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances In California, a public employee is entitled to representational rights not only when an employee reasonably fears discipline, but also in other “highly unusual” circumstances that are not necessarily disciplinary. (p. 27.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews The following facts demonstrated the investigatory nature of the Office of the Inspector General’s (OIG) interviews of correctional officers: OIG coordinated with local prison management to have the officers made available for the interviews, usually through issuance of direct orders for the officers to report at a specified time and place. OIG went so far as to ask local wardens to direct officers to attend and participate in the interviews. It held the interviews at the officers’ job sites, in office spaces that it arranged for with management, rather than at a neutral or offsite location. OIG gave the officers little to no advance notice of the interviews or their subject matter, and while the deputy inspector generals told the officers the interviews were voluntary, the subpoenas clearly indicated otherwise. Nor did the officers have time to object to the subpoenas since the deputy inspector general proceeded with the interviews on the spot. Contrary to OIG’s assertion, not all of the officers interviewed understood the different functions of the Department of Corrections and Rehabilitation (CDCR) and OIG, or even that OIG was distinct from CDCR. Given OIG and the union’s acrimonious history, as evidenced by some of OIG’s statements from the 2015 Special Review Report, the officers had particular reason to be vigilant when confronted with a deputy inspector general with only a minimum of notice and no background information whatsoever. In this context, the officers could have reasonably feared that they or their colleagues faced punitive action as a result of the interviews, particularly because the interviews covered topics which exposed officers to potential for discipline for failure to report their own or others’ misconduct. The Board found a reasonable basis for such a belief notwithstanding the deputy inspector generals’ caveats that the interviews were part of a review as opposed to an investigation and therefore would not serve as the basis for any discipline. (p. 26.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; In General Regardless of how an employer characterizes an interview, if an interview serves to elicit incriminating or merely negative evidence with the potential to impact the employment relationship, then it is investigatory for purposes of the Dills Act. Context is the guiding question. (p. 26.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 408.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; In General To prove a violation of the right to representation in an investigatory or disciplinary interview, the charging party must establish that: (1) the employee or representative invoked the right to representation on behalf of the employee; (2) for an investigatory meeting; (3) which the employee reasonably believed might result in disciplinary action; and (4) the employer denied the request. Because California law affords employee organizations a statutory right to represent employees in their employment relations, the same elements can be used to demonstrate that an employer violated both an employee’s right to be represented and the union’s right to represent the employee. (p. 25.) more or view all topics or full text.	44	48	08/15/19