| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A477H |
Regents of the University of California
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board in this consolidated matter granted two Charging Parties’ appeal from an administrative determination which rejected their joint exceptions as untimely. The Board noted that the parties’ stipulation that they intended and understood one Charging Party’s request for an extension of time was on behalf of all Charging Parties was a reasonable and credible explanation for the untimely filing. Further, the Board noted that the confusion caused by the multiple parties and consolidated proceedings distinguished the circumstances from instances where the Board has found an attorney error is not good cause for late filing. more or view all topics or full text. |
45 | 105 | 03/04/20 |
| 2635Ma |
City of Santa Monica
1105.01000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
By his exceptions, charging party asserted that the ALJ relied on arguments that the prevailing employer never offered. PERB takes a practical, fact-based approach to deciding unfair practice charges. Once a party pleads a general theory of violation (or, as here, a defense), PERB employs a flexible approach to determining whether the evidence presented at hearing supports the parties’ claims. (See e.g. San Diego Community College District (2019) PERB Decision No. 2625, adopting proposed decision at p. 19; Bellflower Unified School District (2017) PERB Decision No. 2544, pp 5-6.) PERB held that when ALJs are analyzing unfair practice charges through well-established legal tests such as the Novato framework, they need not ignore legally salient facts even if a party has not specifically urged that they be considered or has failed to offer arguments as to their relevance. These principles certainly hold true in discrimination and retaliation cases, where “the trier of fact may consider the totality of evidence and draw inferences reasonably justified therefrom.” (California State University, Hayward (1991) PERB Decision No. 869-H, adopting proposed decision at p. 23, fn. 13); see also Los Angeles Unified School District (2016) PERB Decision No. 2479, pp. 29-30.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
It is logical to treat employer statements differently in the interference and discrimination contexts. In assessing a prima facie interference case, motive is normally not at issue, and PERB must determine whether an employer statement is itself a violation, irrespective of motive. In such cases, a manager’s statement “causes no cognizable harm to employee rights unless it contains threats of reprisal or force or promise of a benefit . . . Thus, the charging party must show that the employer’s communications would tend to coerce or interfere with a reasonable employee in the exercise of protected rights.” (County of Riverside (2010) PERB Decision No. 2119- M, p. 17, citations and internal quotation marks omitted.) In contrast, in a discrimination case, PERB must determine motivation, often from circumstantial evidence. Therefore, “context is always relevant,” and PERB looks at “any other” fact or circumstance that may help it resolve the fundamentally difficult task of determining intent. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11 and adopting proposed decision at p. 30].) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
While PERB considers all management statements, among many other factors, in assessing nexus (and in assessing the employer’s affirmative defense in mixed motive cases), the persuasive value of particular management statements will vary depending on differing contexts. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Applying City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) in recent decisions, PERB explained that an employer’s statements may or may not be evidence of an unlawful motivation, depending on the circumstances, irrespective of whether they qualify as threats or promises. (See City of Arcadia (2019) PERB Decision No. 2648-M, p. 30; State of California (Department of Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16; California Virtual Academies (2018) PERB Decision No. 2584, p. 29.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Charging party relied heavily upon alleged management statements suggesting that unlawful animus could have been present at a sufficient level for such animus to qualify as a motivating or substantial factor behind his employer’s promotion decision. The proposed decision cited City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) for the proposition that PERB cannot consider manager statements as evidence of animus unless such statements are themselves a threat or reprisal. The Board disagreed and explained that City of Oakland does not categorically prohibit it from considering employer statements in context, as part of nuanced evaluation of an employer’s motive. Citing NLRB precedent, the Board held: “[A]n employer’s expression of views or opinions against a union, which cannot be deemed a violation in and of itself, can nonetheless be used as background evidence of antiunion animus on the part of the employer.” (CSC Holdings, LLC (2017) 365 NLRB No. 68, p. 17.) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
Where management had no opportunity to choose between charging party employee and other promotional candidates until well after charging party began engaging in protected activity, the timing factor had less relevance. In that case, the Board did not find timing to be a particularly probative factor one way or the other. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
One important circumstantial factor when assessing the presence or absence of an unlawful motive is the relative timing of a charging party’s protected activities and a respondent’s adverse action. (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 13.) PERB has repeatedly noted that adverse action taken shortly after an employee’s protected activities tends to suggest more strongly that the two are linked, and this inference weakens as the gap in time grows. (Ibid.) However, irrespective of whether the timing evidence is strong or weak, timing alone is typically not determinative (ibid), and when assessing the relative strength of timing as a factor, there is no “‘bright line’ rule for determining how close in time the protected activity must be to the retaliatory conduct.” (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, p. 12.) Thus, while a charging party typically needs more than just timing evidence to prevail, if the timing evidence is weak then a charging party will normally need to marshal a stronger array of other, non-timing evidence. PERB continues to reject any bright line finding that certain time lags are so remote that timing alone could defeat a retaliation claim, irrespective of the other evidence. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.07000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; No reason or Inconsistent Reasons Given; Shifting Justifications
Board affirmed ALJ’s finding that employer presented consistent reason for its decision to promote another employee over charging party, and found no evidence that employer’s explanation was substantively different from that which was initially expressed to charging party. more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
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, we have identified the following factors as being the most common means of establishing a discriminatory motive through circumstantial evidence: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures and 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. (See, e.g., City of Sacramento (2019) PERB Decision No. 2642-M, p. 21; San Joaquin Delta Community College District (1982) PERB Decision No. 261, pp. 5-9.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
“To establish the final element of the prima facie case, the charging party must show that the employee’s protected activity was a motivating factor in the employer’s decision to impose the adverse action.” (Omnitrans (2010) PERB Decision No. 2121-M, p. 9.) PERB considers direct evidence, circumstantial evidence, or a combination. (Id. at p. 10.) Direct evidence is rarely attainable, and in any event, there is no hierarchy between direct and circumstantial evidence, as PERB considers all evidence for its persuasive value. (Id. at pp. 9-10; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
To establish a prima facie case of retaliation, the charging party has the burden to prove, by 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 has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, 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. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation, the charging party has the burden to prove, by 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 has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, 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. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2635Ma |
City of Santa Monica
101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent
Although PERB precedent protects representational rights to a greater extent than corresponding precedent under federal law governing private sector labor relations, PERB considers relevant federal precedent for its persuasive value when it is consistent with California authority. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 27, fn. 17.) more or view all topics or full text. |
44 | 125 | 01/22/20 |
| 2683E |
San Diego Unified School District
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
Board found context highly relevant in determining that a reasonable employee would find requiring a teacher to attend professional development courses in which teachers shared lesson plans constituted an adverse action where the teacher was assigned to a “do nothing” position with no students and consequently had no lesson plans to share. In another context, non-punitive directives may not constitute adverse action. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.) more or view all topics or full text. |
44 | 103 | 11/20/19 |
| 2683E |
San Diego Unified School District
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
The Board affirmed the ALJ’s finding that school teacher established a prima facie case that school district was at least partially motivated by retaliatory animus when it assigned her to report for a job each day that had no duties, but that school district proved its affirmative defense by showing that it would have taken the same actions even in the absence of protected activity. The Board agreed with the ALJ that requiring a teacher to report each day for a “do-nothing” assignment is an adverse action. The Board, however, reversed the ALJ’s conclusions that certain written directives were not adverse actions, finding them to be integrally related to the “do nothing” assignment. The written directives prohibited the teacher from offering to cover classes for other teachers, entering classrooms during instructional time, visiting with teachers during preparation time, and using the school’s instructional supplies or office equipment. The directives also required the teacher to attend professional development courses in which teacher shared lesson plans, even though teacher did not have any lesson plans to share because she had no students. A reasonable employee would see management’s directives as adverse, because they were part and parcel of the “do nothing” job assignment. more or view all topics or full text. |
44 | 103 | 11/20/19 |
| 2683E |
San Diego Unified School District
505.13000: EMPLOYER DISCRIMINATION; DEFENSES; Other
In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions. more or view all topics or full text. |
44 | 103 | 11/20/19 |
| 2683E |
San Diego Unified School District
505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General
In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions. more or view all topics or full text. |
44 | 103 | 11/20/19 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
401.12000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Right to Address Governing Board
An exclusive representative has a right to engage in direct and indirect advocacy with an employer’s elected and unelected officials, up to and including the employer’s highest levels, provided that the exclusive representative does not make new collective bargaining proposals that the exclusive representative has not already made in negotiations with the employer’s chosen bargaining team. (Anaheim Union High School District (2015) PERB Decision No. 2434, pp. 52-53; Westminster School District (1982) PERB Decision No. 277, p. 10; San Ramon Valley Unified School District (1982) PERB Decision No. 230, pp. 16-18.) Union representative’s e-mails to County’s Board of Supervisors were protected advocacy and not impermissible direct dealing, where Union representative’s e-mails did not present any proposals that the Union had not already made in negotiations or advocate for contract terms differing materially from previous Union proposals. (PARTIALLY OVERRULING County of Inyo (2005) PERB Decision No. 1783-M, to extent it found that union engaged in direct dealing during a presentation to the employer’s board where there was no allegation that the union made new proposals from those union sought in bargaining during the presentation.) more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments
PERB Regulation 32647 requires a charging party to file an amended charge with its request to amend the complaint, if and only if its request comes before the hearing begins. Union did not file an amended charge with its motion, and thereafter Union neither remedied this deficiency nor renewed its motion orally during the hearing, when there would have been no need to file an amended charge. (PERB Regulation 32648.) Accordingly, ALJ’s denial of motion to amend complaint was procedurally correct. more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments
The ALJ erroneously denied the County’s motion to amend complaint to allege that Union violated bargaining ground rules, which County brought prior to resting its case-in-chief. (See, e.g., Contra Costa Community College District (2019) PERB Decision No. 2669, p. 9 [Even though charging party had rested his case, under PERB’s liberal amendment rules the ALJ should have allowed him to amend the complaint and reopen his case-in-chief, while granting an appropriate continuance if needed to prevent undue prejudice to the responding party].) The Board noted two related principles: (i) The County had no need to amend its complaint, if it sought only to add violation of ground rules as an additional indicator of bad faith, because the complaint need not list all such indicia; and (ii) If the County sought to allege violation of ground rules as an independent violation, then the County could either amend the complaint or satisfy the unalleged violation doctrine. (City of Davis (2018) PERB Decision No. 2582-M, p. 13.) Thus, the County had the right to raise its additional allegation in each of three separate ways—as an indicia of bad faith that need not be spelled out in the complaint, as an amendment to the complaint to assert an independent violation (which the ALJ should have granted), and potentially also as an unalleged independent violation if the unalleged violation doctrine was satisfied. more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
1101.04000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Continuing Violation
A complaint included a facial challenge, as it alleged that the County violated the MMBA by “maintaining” the rule, which is a separate act from any alleged enforcement. A facial challenge may be brought at any time where a charging party would risk discipline or other adverse consequences if it were to violate the rule. (City and County of San Francisco (2017) PERB Decision No. 2536-M, pp. 14-15 & fn. 12.) more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromise—this will typically be true if aggregate movements toward the other party’s position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. (See City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; Charter Oak Unified School District (1991) PERB Decision No. 873, pp. 17-18.) Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items. During the several weeks in which Union allegedly acted in a regressive manner, the parties traded multiple alternative packages, some including resolution of all litigation and some excluding such resolution. County did not meet its burden to show regressive conduct, viz., that Union made regressive new demands that were insufficiently offset by Union’s contemporaneous movements toward compromise. more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
A party does not engage in regressive bargaining if it offers a sufficiently credible and rationally supported justification of changed circumstances that explain why it has made a proposal that ostensibly appears to move the parties further away from a resolution. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; City of Arcadia (2019) PERB Decision No. 2648-M, p. 39.) There were credible and rational changed circumstances supporting Union’s decision to begin covering an additional bargaining unit in its proposals: two months into the negotiations, the County recognized Union as the exclusive representative of the additional bargaining unit. more or view all topics or full text. |
44 | 141 | 02/20/20 |
| 2697M |
County of Tulare (Service Employees International Union Local 521)
804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
Union did not commit a ground rule violation when a Union bargaining team member made a verbal proposal, where the ground rules did not prevent verbal presentations of hypothetical proposals, and permitted either a spokesperson or his or her designee to speak for the bargaining team. Union was not required to reduce its verbal proposal to writing in the short interval between floating the proposal and reaching an overall tentative agreement later that day. more or view all topics or full text. |
44 | 141 | 02/20/20 |
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.
