Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
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 Both PERB and California courts recognize that, in several respects, the language of our public sector bargaining laws is “considerably broader” than the federal law on which NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256 rests. (p. 25.) 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 An investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee relations” and Dills Act section 3515 therefore grants state employees representational rights that are at least as broad as those afforded private sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 and other federal authorities interpreting section 7 of the National Labor Relations Act. (pp. 24-25.) 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 Based on the facts of this case, the Office of the Inspector General (OIG) had a duty not to interfere with the protected rights of correctional officers or their exclusive representative. The subject-matter of the interviews—the officers’ observations during their work at the prison—were work-related. Although OIG did not conduct the interviews at the request of the Department of Corrections and Rehabilitation (CDCR), CDCR management cooperated with and supported the interviews. OIG coordinated with local prison management to have the officers made available for the interviews, and directed officers to report at a specified time and place for the interviews. OIG held the interviews at the officers’ job sites, before or during the officers’ on-duty time. Moreover, some OIG agents apparently recognized the validity of the officers’ requests for representation and permitted their union representatives to participate in and record the interviews. (p. 20.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 201.01000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; In General The Board found that the Office of the Inspector General (OIG) was acting as the employer of correctional officers when OIG interviewed them pursuant to a Senate Rules Committee-authorized review of the practices at a state prison. The subject-matter of the interviews—the officers’ observations during their work at the prison—were work-related. Although OIG did not conduct the interviews at the request of the Department of Corrections and Rehabilitation (CDCR), CDCR management cooperated with and supported the interviews. OIG coordinated with local prison management to have the officers made available for the interviews, and directed officers to report at a specified time and place for the interviews. OIG held the interviews at the officers’ job sites, before or during the officers’ on-duty time. Moreover, some OIG agents apparently recognized the validity of the officers’ requests for representation and permitted their union representatives to participate in and record the interviews. (p. 20.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 201.01000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; In General A state agency is subject to liability under Dills Act section 3519, subdivisions (a) and (b), if it is the appointing authority or when it acts as an employer. (p. 17.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 201.01000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; 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) 1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles The fundamental task in statutory construction is ascertaining the intent of the Legislature so as to effectuate the purpose of the law. The Board first examines the statutory language, giving words their usual and ordinary meaning. If the terms of the statute are unambiguous, we assume the Legislature meant what it said; the plain meaning of the language controls and there is nothing to interpret or construe. “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” [Citation.] If the statutory terms are ambiguous, then we may resort to extrinsic sources, including the purpose of the statute and the legislative history. (pp. 15-16.) more or view all topics or full text.	44	48	08/15/19
2660S	State of California (Office of the Inspector General) 201.01000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; 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) 201.01000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; 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
2698M	City and County of San Francisco 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing Unless the Board limits the posting requirement, PERB’s traditional remedy for an employer’s unfair practice includes a notice posting requirement on a unit-wide basis. “The purpose of posting a notice incorporating the terms of the order is educational for the represented employees. It is to notify employees of the conduct that was found to be unlawful, assure all employees affected by the decision of their rights and PERB’s conclusions, and inform employees that the controversy is now resolved and the employer is ready to comply with the remedy ordered.” [Citation.] The posting requirement also serves the purpose of “prevent[ing] the recurrence of the prohibited conduct on a unit-wide basis.” [Citation.] (pp. 12-13.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General The Board rejected the employer’s argument that it was absolved of any duty to meet and confer with the union over redactions in an investigation report concerning a bargaining unit employee because the union never made such a request. Following the union’s original request for information and receipt of a heavily-redacted investigation report, the union next attempted to obtain clarification regarding the redactions. After the employer responded in a conclusory manner, the union made two subsequent requests for a full, unredacted copy of the report. Almost three months later, the employer provided a report with fewer redactions. In all instances the employer solely determined what information to redact, thereby “converting the applicable procedure from a two-way negotiation to a unilateral decision.” [Citation.] Although these follow-up efforts clarified the dispute, they were not a necessary element to proving the employer’s violation; a union has no duty to request to meet and confer if an employer has unilaterally determined what information to redact and presented its decision as a fait accompli rather than as a proposal. (pp. 11-12.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General Although neither MMBA section 3503 nor section 3506 explicitly contains a meet and confer obligation, the duty to meet and confer under MMBA section 3505 extends to requests for information during the contractual grievance process. (p. 9.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General While the MMBA does not expressly provide for an exclusive representative’s right to information, the Board has repeatedly recognized that an exclusive representative’s statutory right to represent employees carries with it ancillary rights, including the right to obtain necessary and relevant information and to bargain with the employer over any alleged privacy concerns. Conversely, the MMBA prohibits employers from interfering with bargaining unit employees’ right to be represented by their exclusive representative, which by extension precludes interference with an exclusive representative’s right to necessary and relevant information. (p. 9.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General When a union requests information relevant to a potential disciplinary grievance, the employer must raise any privacy concerns in a timely fashion so the parties can negotiate over accommodating those concerns before the union’s time to file a grievance has expired. (pp. 7-8.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General An employer’s duty to provide information abides even where third party privacy rights are concerned, because “a union’s unique representational functions gives it a right to arguably private information.” [Citation.] When a union seeks information that implicates “significant privacy rights of third parties,” the employer may not simply refuse to provide the information but must instead “meet and negotiate in good faith to accommodate all legitimate competing interests.” [Citation.] (p. 7.) more or view all topics or full text.	44	143	02/24/20
2698M	City and County of San Francisco 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General Under the MMBA and other statutes that PERB administers, an exclusive representative is entitled to all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. The terms “necessary” and “relevant” are interchangeable; thus, a charging party can meet its burden by showing its request meets one prerequisite or the other. Information pertaining to mandatory subjects of bargaining is presumed relevant, and the employer must provide such information unless it can show that the information is plainly irrelevant or provide adequate reasons why it cannot supply the information. PERB uses a liberal, discovery-type standard to determine relevance. (pp. 6-7.) more or view all topics or full text.	44	143	02/24/20
2694M	City of Glendale 1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief Having found a unilateral subcontracting violation, PERB ordered City not only to cease and desist from future subcontracting of bargaining unit work without notice and an opportunity to meet and confer, but also to rescind or modify any unilaterally adopted contracts that cover work of a type traditionally done by bargaining unit employees. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo As is customary in cases where there have been unlawful unilateral changes, such as the unilateral subcontracting here, the most critical remedies needed to effectuate California’s labor laws are orders requiring the City to cease and desist from its failures and refusals to bargain, and to restore the prior status quo to the extent necessary to make the exclusive representative and employees whole for any losses, upon request by the exclusive representative. City ordered to restore the status quo that existed before the premature imposition, upon request from the exclusive representative. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest City ordered to make bargaining unit employees made whole for any losses they may have suffered due to the City’s unlawful unilateral imposition of terms and conditions of employment, along with interest at the rate of 7 percent per annum from date of imposition until such time as the City restores conditions as they existed before imposition, or until the effective date of any new collective bargaining agreement between the parties, whichever is earlier. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 1201.02000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Reinstatement City directed to reinstate the eliminated bargaining unit classifications, retroactively fill those classifications (from the laid off employees, in seniority order) with the number of employees reinstated commensurate with the amount of bargaining unit work performed by non-bargaining unit employees at all relevant times, and to provide make-whole relief (total compensation including benefits) as part of retroactively restoring the status quo. PERB’s Compliance Officer provided specific guidance regarding how to address the above factors in compliance proceedings, putting the burden on the City to prove any periods of time in which there was so little traditional bargaining unit work being performed that certain of the layoffs and/or failure to recall were during those times the result of a non-bargainable reduction in work rather than a bargainable decision to use non-bargaining unit workers to perform remaining and future work. Remedial order is appropriate even though it necessarily will require PERB’s Compliance Officer to make approximations in resolving remedy disputes. (City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14 & 26-27.) Doing so is generally preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied. (Id., p. 26.) more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General A City’s decision to eliminate all positions in a classification was based upon both a non-bargainable decision to reduce the amount of that classification’s work being performed on behalf of the City, at least temporarily, and a bargainable decision to subcontract and to use non-bargaining unit City employees to perform the classification’s remaining and future work. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621.) The Board was careful to remedy only those layoffs and involuntary demotions resulting from bargainable decisions. The Board adjusted the proposed remedial order to ensure it did not provide a remedy for any layoffs or demotions that would have occurred solely based on the non-bargainable decision to reduce (at least temporarily) the amount of work performed by the classification. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, at p. 11, fn. 9; Riverside, supra, at p. 11.) City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. An impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse PERB precedent defines “impasse” as a point at which the parties’ differences remain so substantial and prolonged that further meeting and conferring would be futile. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures,” and its “conduct is free of unfair labor practices.” (San Ramon, supra, PERB Decision No. 2751-M, p. 6; City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Regents of the University of California (1985) PERB Decision No. 520-H, p. 17.) However, both parties must believe they are at the “end of their rope.” (Riverside, supra, PERB Decision No. 2360-M, p. 13.) more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse Administrative determinations regarding MMBA factfinding requests do not preclude contrary findings after a formal hearing in a related unfair practice charge. Administrative determinations of MMBA factfinding requests do not generally provide either a charging party or a respondent a basis for prevailing in a related bad faith bargaining case. For instance, such an administrative determination does not establish whether there existed a legitimate, good faith impasse permitting an employer to impose the terms of its last offer. (See City & County of San Francisco (2014) PERB Order No. Ad-415-M, p. 12 [Although an MMBA factfinding request may involve issues that overlap with those in a related unfair practice case, determinations made as part of the factfinding request generally do “not prejudice or determine the ultimate outcome in the unfair practice case”].) This is because OGC must reach an administrative determination after a very limited investigation that does not create a reliable evidentiary record like that developed during a formal hearing on an unfair practice charge. more or view all topics or full text.	44	135	02/03/20
2694M	City of Glendale 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, at p. 11, fn. 9; Riverside, supra, at p. 11.) City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. An impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work. more or view all topics or full text.	44	135	02/03/20