Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2634E	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 taken adverse actions against teacher whether or not she had participated in protected activities. There was sufficient evidence of procedural irregularities by the school district to find that teacher’s protected activity contributed to the school district’s actions. However, there was also sufficient evidence that the school district had other, stronger motivations, thereby leading Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s actions. more or view all topics or full text.	43	156	03/22/19
2634E	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 taken adverse actions against teacher whether or not she had participated in protected activities. There was sufficient evidence of procedural irregularities by the school district to find that teacher’s protected activity contributed to the school district’s actions. However, there was also sufficient evidence that the school district had other, stronger motivations, thereby leading Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s actions. more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In applying the Novato standard (Novato Unified School District (1982) PERB Decision No. 210), we often compare the employer’s proffered reasons with the parties’ evidence regarding any alleged wrongdoing “to determine if the employer exaggerated or otherwise mischaracterized what occurred, thereby evidencing an unlawful motivation.” (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 11.) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities In evaluating whether an involuntary reassignment of duties effectuated while misconduct allegations are pending is objectively adverse to employment, “the charging party must ‘present facts demonstrating that a reasonable employee would consider the transfer an adverse action.’” (Coachella Valley Unified School District (2013) PERB Decision No. 2342, adopted proposed decision at p. 17 (internal citation omitted).) Where charging party had been a certified, secondary math teacher for approximately three decades and a classroom math teacher at the high school for most of that time, no reasonable person under these circumstances would find that an involuntary transfer from a classroom teaching position to a non-classroom tutoring assignment was anything but adverse. (Id. at p. 18 [transferring biology and chemistry teacher to a program where he was no longer able to teach laboratory sciences constituted adverse action].) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 24-25.) “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.” (Id. at p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence While a respondent is free to assert the “but for” affirmative defense in any case in which it claims it took adverse action for a reason other than protected activity, it is often appropriate to separately analyze the affirmative defense when the evidence reveals mixed motives. Ultimately, however, the interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense is less formulaic than it may appear from the Board’s usual articulation of the Novato Unified School District (1982) PERB Decision No. 210, standards. In some cases, there is no need to separately assess the employer’s affirmative defense, if the charging party has already disproven the defense in the course of establishing nexus. more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence When it appears that the employer’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Bros.); Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22. Thus, in a “mixed motive” case in which the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; Martori Bros., supra, 29 Cal.3d at pp. 729-730; Wright Line (1980) 251 NLRB 1083, 1089.) The employer must establish the “but for” affirmative defense by a preponderance of the evidence. (McPherson v. PERB (1987) 189 Cal.App.3d 293, 304.) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 8.) Under Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424 (Campbell), a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14.) In the absence of evidence sufficient to trigger the Campbell standard, we apply the Novato analysis of nexus factors. (Los Angeles County Superior Court, supra, at pp. 14-15, citing Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6 (Novato).) The Novato factors have undoubtedly become the primary avenue for proving discrimination or retaliation allegations. Board relies on them where, as here, the employer’s conduct is not inherently discriminatory and neither party argued that the adverse action was discriminatory on its face under Campbell and its progeny. (County of Santa Clara, supra, PERB Decision No. 2629-M, pp. 8-9.) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards School district’s directive to teacher prohibiting teacher from discussing a pending investigation with any staff member constitutes interference because it can reasonably be construed as prohibiting protected activity, such as teacher’s right to speak to her coworkers about her working conditions. Directive causes at least slight harm to teacher’s protected rights under EERA and school district did not establish any operational necessity for its directive, and accordingly teacher established a prima facie case for interference. more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct. (Los Angeles Community College District (2014) PERB Decision No. 2404, p. 6 (LACCD).) In LACCD, the employer placed an employee on leave while it initiated a fitness-for-duty examination. (Id. at p. 2.) In doing so, it issued the employee a letter that stated, “You are hereby directed not to contact any members of the faculty, staff or students.” (Ibid.) The Board held the directive interfered with the employee’s rights under EERA because it could reasonably be construed to prohibit the employee from participating in a variety of protected activities, including discussing his working conditions with his coworkers. (Id. at p. 9.) It further held the employer did not meet its burden to establish why the directive was necessary to preserve the integrity of its investigation. (Id. at p. 13.) more or view all topics or full text.	43	156	03/22/19
2634E	San Diego Unified School District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards EERA section 3543 protects public school employees’ right to “form, join, and participate in the activities of employee organizations” in matters concerning employer employee relations. PERB’s interference test does not require evidence of unlawful motive, only that the employer conduct at issue has a tendency to create at least “slight harm” to employee rights. (Los Angeles Community College District (2014) PERB Decision No. 2404, p. 5; Simi Valley Unified School District (2004) PERB Decision No. 1714, p. 17.) To establish a prima facie case, the charging party must demonstrate that the employer’s conduct tends to or does result in harm to employee rights. (Carlsbad Unified School District (1979) PERB Decision No. 89, p. 10 (Carlsbad).) If the prima facie case is established, PERB balances the degree of harm to protected rights against any legitimate business interest asserted by the employer. (Hilmar Unified School District (2004) PERB Decision No. 1725, p. 17, citing Carlsbad, supra, at pp. 10-11.) “Where the harm is slight, the Board will entertain a defense of operational necessity and then balance the competing interests.” (Ibid.) “Where the harm is inherently destructive [of protected rights], the employer must show the interference was caused by circumstances beyond its control.” (Ibid.) more or view all topics or full text.	43	156	03/22/19
2689M	Salinas Valley Memorial Hospital District 1309.07000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Unit Size The small size of the proposed unit is not a disqualifying factor alone. more or view all topics or full text.	44	119	01/13/20
2689M	Salinas Valley Memorial Hospital District 1309.04000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Efficiency of Operation In cases where unit proliferation is at issue, the employer may rely on the adverse impact on its operational efficiency in its unit determination analysis. (Pleasanton Joint School District/Amador Valley Joint Union High School District (1981) PERB Decision No. 169, p. 4.) However, if dismissing the petition effectively denies employees the right to representation, the employer's rejection based on the inappropriateness of the unit is generally warranted only where there is “convincing evidence in support of the . . . claim that efficiency of its operations would be impaired.” (Ibid.) The Board found that the Hospital’s evidence was purely speculative and insufficient to demonstrate concrete operational harm. more or view all topics or full text.	44	119	01/13/20
2689M	Salinas Valley Memorial Hospital District 1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General The Board considered the Hospital’s repeated failure to apply its own rule reasonably and exhaustive history of litigating similar issues in finding the Board was well within its broad remedial authority to order the employer to recognize and commence bargaining with ESC. more or view all topics or full text.	44	119	01/13/20
2689M	Salinas Valley Memorial Hospital District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA does not give an employer the right to determine which employees get the benefit of the statute or which must remain unrepresented, and it does not empower it to determine the number and identity of the employee organizations that represent its employees. (See MMBA, § 3502.) By considering each of the four unit determination factors of its local rule in a vacuum, and willfully disregarding the organizational rights of employees and ESC, the Hospital unlawfully focused on its desired outcome at the expense of rights conferred by the MMBA, and unreasonably applied its local rule. The circumstances surrounding the Hospital’s application of the rule, including its intentions, are relevant where it is apparent that the Hospital’s repeated unlawful conduct and results-oriented approach deprived employees and the employee organization of their rights under the MMBA to choose a representative and be represented in their dealings with the employer. (MMBA, § 3500.) more or view all topics or full text.	44	119	01/13/20
2601H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299) 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) PERB Regulations provide that a late filing may be excused at the discretion of the Board “for good cause only.” (PERB Reg. 32136.) If excused, a late filing is considered timely. (Ibid.) Consistent with the policy favoring preservation of the right to appeal and hearing appeals on their merits, the Board’s application of the Regulation to a variety of factual scenarios reveals that “good cause” is a flexible standard, defined and constrained by considerations of fairness and reasonableness. (Trustees of the California State University (1989) PERB Order No. Ad-192-H, pp. 4-5.) Whether good cause exists is a separate inquiry from whether accepting a late filing would result in prejudice. (Bellflower Unified School District (2017) PERB Order No. Ad-447, p. 5.) more or view all topics or full text.	43	88	12/10/18
2601H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299) 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) Where the respondent has failed even to file any answer, it likewise waives not only its affirmative defenses, but also any specific or general denial it might have asserted, unless it is granted leave to file a late answer and have the untimeliness excused for good cause. (PERB Reg. 32136.) Moreover, PERB Regulation 32644 provides that, “[i]f the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” (PERB Reg. 32644, subd. (c).) Although the language of the regulation appears to be discretionary, when read together with the language of subdivision (b) of 32644 regarding the contents of the answer, the implication is clear that a respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge. That is, without an answer, there can be no general or specific denial of the allegations in the complaint, nor any affirmative defenses. more or view all topics or full text.	43	88	12/10/18
2601H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299) 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) PERB Regulations expressly state that the answer to a PERB complaint “shall” contain, among other things, a “specific admission or denial of each allegation contained in the complaint” and “[a] statement of any affirmative defense[s]” which the respondent wishes to assert. (PERB Reg. 32644, subd. (b)(5), (6).) Requiring parties to give reasonable notice of their claims and defenses is necessary to ensure a fair litigation process, particularly since PERB’s unfair practice procedures do not provide for pre-hearing discovery. more or view all topics or full text.	43	88	12/10/18
2601H	Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299) 1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver Where the respondent has failed even to file any answer, it likewise waives not only its affirmative defenses, but also any specific or general denial it might have asserted, unless it is granted leave to file a late answer and have the untimeliness excused for good cause. (PERB Reg. 32136.) Moreover, PERB Regulation 32644 provides that, “[i]f the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” (PERB Reg. 32644, subd. (c).) Although the language of the regulation appears to be discretionary, when read together with the language of subdivision (b) of 32644 regarding the contents of the answer, the implication is clear that a respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge. That is, without an answer, there can be no general or specific denial of the allegations in the complaint, nor any affirmative defenses. more or view all topics or full text.	43	88	12/10/18
2646H	Regents of the University of California (University Professional and Technical Employees, Communication Workers of America, Local 9119) 1311.01000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; In General University engaged in a technical refusal to bargain in order to obtain judicial review of underlying unit modification decision, after Board declined to join University’s request for judicial review. The Board concluded that University’s conduct constituted a violation of its duty to bargain under HEERA. more or view all topics or full text.	43	196	06/03/19
2646H	Regents of the University of California (University Professional and Technical Employees, Communication Workers of America, Local 9119) 1310.01000: REPRESENTATION ISSUES; UNIT MODIFICATION; In General University engaged in a technical refusal to bargain in order to obtain judicial review of underlying unit modification decision, after Board declined to join University’s request for judicial review. The Board concluded that University’s conduct constituted a violation of its duty to bargain under HEERA. more or view all topics or full text.	43	196	06/03/19
2610H	Regents of the University of California (Berkeley) 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand The University failed to provide UC-AFT with adequate notice of its decision to outsource the Young Musician’s Program. By no later than March 6, 2013, University’s principal decisionmaker acted in consultation with the Young Musician Program’s director and its advisory board to transfer the Program to an outside entity. At that time, the University had not advised UC-AFT of the Program’s impending closure nor that it planned to continue the Program under the auspices of a non-University entity. (pp. 33-34.) more or view all topics or full text.	43	100	12/19/18
2610H	Regents of the University of California (Berkeley) 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand Like the other PERB-administered statutes, the statutory scheme under HEERA presumes that notice of changes to negotiable matters will be provided “in a meaningful manner at a meaningful time.” (City of Sacramento (2013) PERB Decision No. 2351-M, pp. 29-30.) What constitutes meaningful notice will necessarily vary depending on the circumstances of each case, but, at minimum, an employer must give notice sufficiently in advance of reaching a firm decision to allow the representative an opportunity to consult its members and decide whether to request information, demand bargaining, acquiesce to the change, or take other action. By any measure, the University failed to provide UC-AFT with meaningful notice of the decision to transfer the Young Musician’s Program’s operations to a non-University entity. As early as November 2012, the University’s principal decisionmaker asked the campus general counsel to research two options, “each of which would get [the Program] out from under all the personnel issues without damaging the program.” Despite having decided as early as March 2013 to have the Program separate from the University, a University Labor Relations Specialist advised UC-AFT in April 2013 that the University was “seriously considering whether it should continue with the [Program].” In May 2013, the University informed UC-AFT that it had decided to close the Program, effective June 1, 2013. Throughout these communications, the University made no mention of its plans to subcontract or “transfer” the Program’s operations to a successor organization. By the time UC-AFT learned of the University’s decision to transfer the Program to the successor program (as opposed to simply closing it), the transfer was already well underway. (pp. 45-47.) more or view all topics or full text.	43	100	12/19/18
2610H	Regents of the University of California (Berkeley) 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand A union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue until after the employer had already reached a firm decision. Even if an employer does not implement the change in policy until later, or perhaps not at all, its act of reaching a firm decision to do so without first providing meaningful notice and opportunity for bargaining violates the bilateral scheme of collective bargaining contemplated by our statutes. Where, as here, the bargaining representative has no actual or constructive notice of plans to alter negotiable matters, there is no meaningful notice, and thus no issue of waiver of the right to bargain. (p. 47.) more or view all topics or full text.	43	100	12/19/18
2610H	Regents of the University of California (Berkeley) 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 The University’s decision to subcontract the Young Musician’s Program was negotiable under either of two lines of PERB and federal cases. First, it was substantially motivated by labor costs and personnel problems which were peculiarly suitable for resolution through collective bargaining. University’s principal decisionmaker acknowledged that his decision to transfer the Program to a non-University entity was influenced by concerns that the Program consumed revenue from another department needed to cover salaries and other human resources expenditures, and that the Program was undergoing a period of growth and expansion, portending additional expenses in the future. Second, its practical effect was to replace University employees with those of another employer, the Young Musicians Choral Orchestra (YMCO), to perform essentially the same services under similar circumstances. The YMCO later “restored” the Program’s operations, pursuant to contractual agreements with the University. The YMCO uses University space for its performances. Its director is the same, its board president is the same, its marketing identity is largely the same, including its use of University trademarks and scripts, its musical instruments are the same, several of its teachers are the same, and the students served by the Program are also the same. We conclude that the University was not authorized to act unilaterally to close the Program and transfer operations to YMCO. (pp. 33, 38, 41.) more or view all topics or full text.	43	100	12/19/18