Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2610H	Regents of the University of California (Berkeley) 602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Adequate Prior Notice and Opportunity to Bargain 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, the 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) 602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Adequate Prior Notice and Opportunity to Bargain 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
2589C	El Dorado County Superior Court 102.02000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes Where the parties to an unfair practice case dispute whether external law, including the public employment retirement laws, removes an otherwise negotiable matter from the scope of representation, or creates a statutory right not subject to waiver or impairment through unilateral employer action, PERB may interpret the provisions of external law as necessary to decide questions arising under the collective bargaining statutes we administer. (County of San Luis Obispo, supra, PERB Decision No. 2427-M, pp. 30-34; City of San Jose (2013) PERB Decision. more or view all topics or full text.	43	64	10/17/18
2633Ea	Lake Elsinore Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration Board denied charging party’s request to reconsider its decision to deny her motion to enforce a settlement agreement because the Board does not have statutory authority to enforce private agreements, and charging party’s request simply contended that the Board erred in reaching this conclusion. Under long-established Board law, a party may not use the reconsideration process to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to “try again.” more or view all topics or full text.	44	20	06/28/19
2633E	Lake Elsinore Unified School District 1107.13000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative and Judicial Notice Although PERB may take official notice of its own files and records, including allegations included in separate unfair practice cases, a blanket citation to an unfair practice case, without “designat[ing] . . . the portions of the record . . . relied upon,” does not comply with PERB Regulation 32300, subdivision (a)(3), requiring parties to designate the portions of the record relied upon, and we decline to scour the entire record of a separate case to determine whether it includes evidence to support the claim urged here by charging parties. more or view all topics or full text.	43	152	03/08/19
2632M	Contra Costa County Fire Protection District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest As in Santa Monica Community College District (1979) PERB Decision No. 103 [denying salary increase after union refused to waive its right to negotiate over salary], the District’s discriminatory conduct in this case consists of denying an employment benefit to some employees, while granting the same benefit to others, on the basis of protected activity. An effective make-whole remedy in this case therefore includes ordering the District to make Association-represented employees whole until such interference and discrimination cease. Additionally, as in Santa Monica CCD, the appropriate measure of backpay and back benefits is not what the employees affected by unlawful discrimination might have obtained through negotiations between their representative and the employer, but the benefit actually granted to other, employees not engaged in protected activity. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest We follow the Legislature’s directive and controlling judicial interpretations of the MMBA in concluding that where a public employer has interfered with and/or discriminated on the basis of protected rights, PERB may properly order awards of backpay and/or retroactive benefits until the interference and/or discrimination have ceased, or such other affirmative relief as may be necessary to effectuate the policies and purposes of the MMBA. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Board finds no merit in the District’s implicit argument that its constitutional power to determine wages precludes PERB from ordering backpay to remedy interference and/or discrimination. The MMBA incorporates by reference the Board’s broad powers under EERA to effectuate the purposes of the Act. (MMBA, § 3509, subds. (a), (b); Gov. Code, § 3541.3, subds. (i), (n).) By contrast, the MMBA expressly limits PERB’s power to award monetary damages only in cases involving an unlawful strike, which is not at issue here. (MMBA, § 3509, subd. (b).) Thus, the principle that the expression of one thing excludes others further confirms that PERB’s broad remedial powers include the power to direct public agencies to compensate employees with backpay, or other forms of remuneration necessary to make employees whole or to otherwise effectuate the statute’s purposes. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity Under Campbell, if an employer’s discriminatory conduct is “inherently destructive” of protected rights, no further proof of improper motivation is needed and we may find the employer guilty of an unfair labor practice even if it introduces evidence that its conduct was motivated by legitimate business considerations. However, even if we were to find the District’s conduct caused only comparatively slight harm to protected rights, we would still find merit to the present charge and complaint, given the combination of direct and circumstantial evidence of discrimination and the pretextual nature of the District’s explanations. The District’s post-hoc arguments, including its alleged financial concerns and its desire to maintain certain benefits for higher-ranking unrepresented managers so as to preserve promotional incentives, have already been considered and found unpersuasive. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity An employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees unlawfully discriminates and interferes with protected rights, because its conduct indicates that employees who choose union representation will automatically forfeit participation or eligibility for the benefit, and/or that the benefit is not subject to negotiation. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General District’s high-ranking labor relations officials repeatedly and expressly relied on the distinction between represented and unrepresented employees as the basis for determining eligibility for employment benefits. These statements provide direct evidence of motive and, indeed, of facially or inherently discriminatory conduct sufficient to support a discrimination allegation. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence District’s high-ranking labor relations officials repeatedly and expressly relied on the distinction between represented and unrepresented employees as the basis for determining eligibility for employment benefits. These statements provide direct evidence of motive and, indeed, of facially or inherently discriminatory conduct sufficient to support a discrimination allegation. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity While motive is not part of the prima facie case of interference, where the respondent has asserted that it acted for a legitimate business purpose, PERB analyzes the affirmative defense, in part, using principles applicable in a “mixed motive” discrimination case. Specifically, the Board may consider not only whether the stated justification is legitimate, but also whether it was, in fact, the reason for the employer’s conduct. Affirmative defense fails where the key distinction at the heart of the unlawful pay structure is not a distinction in which employees earn more due to higher skill or higher level work; to the contrary, the only explanation that accurately describes the District’s pay structure is that the District wanted unrepresented managers to earn more, even if they were at the same level as represented managers. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 405.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES; Promise of or Withholding of Benefits In Carlsbad, the Board explained that employer conduct will be deemed “inherently destructive” of protected rights, if its “natural and probable consequence” would be to discourage the exercise of such rights. The District’s decision to grant longevity differentials only to unrepresented employees not only tended to interfere with protected activity but was so significant that its natural and probable consequence was to interfere with Association and employee rights. By explicitly distinguishing between represented and unrepresented employees and insisting on its intent to compensate the latter group at a higher level, the District’s position inherently discourages union activity. Accordingly, under Carlsbad, the District’s conduct may be excused only on proof that it was occasioned by circumstances beyond the District’s control and that no alternative course of action was available. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 401.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; In General; Prima Facie Case. An interference violation may be found only where the pertinent PERB-administered statute provides the right(s) asserted by the charging party. Consequently, while an interference allegation may arise from an employer’s bargaining conduct, it cannot expand or otherwise alter the scope of the employer’s duty to meet and confer in good faith. (MMBA, §§ 3504, 3505.) [At the same time e]stablishing a bargaining violation is not a prerequisite for proving up an independent interference or discrimination allegation, even when the latter arises from the employer’s bargaining conduct. The MMBA prohibits public agencies from taking actions which are otherwise entirely lawful, when undertaken for an unlawful discriminatory purpose, or, in interference cases, with an unlawful coercive effect without regard to intent. Even where it has unquestioned discretion to act, a public agency is not free to exercise its authority in a manner that violates the rights of employees or employee organizations. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 401.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; In General; Prima Facie Case. Employer statements or other conduct containing a threat of reprisal or force or a promise of benefit on the basis of protected activity are unprotected and constitute a prima facie case of interference, coercion or restraint. (City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26; Rio Hondo Community College District (1980) PERB Decision No. 128, pp. 18-20; NLRB v. Exchange Parts Co. (1964) 375 U.S. 405, 409-410.) Employer statements that convey the impression that collective bargaining is futile may also reasonably tend to discourage participation in protected activity and thereby interfere with the rights of employees and/or employee organizations. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 401.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; In General; Prima Facie Case. The focus of an interference allegation is on the actual or reasonably likely harm of an employer’s conduct to the protected rights of employees, employee organizations, or both. The employer’s motive, intent or purpose is not part of a prima facie case of interference and issues regarding the employer’s subjective state of mind are only germane at all in an interference case where the employer has asserted as an affirmative defense that it acted in good faith for a bona fide business purpose, i.e., for determining whether the employer acted for the reason it has asserted. While the analysis differs depending upon the nature or severity of likely harm ascribed to the employer’s conduct, regardless of how one gets there, an interference violation will be found when the resulting harm to protected rights outweighs the business justification or other defense asserted by the employer. more or view all topics or full text.	43	150	03/07/19
2632M	Contra Costa County Fire Protection District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards The focus of an interference allegation is on the actual or reasonably likely harm of an employer’s conduct to the protected rights of employees, employee organizations, or both. The employer’s motive, intent or purpose is not part of a prima facie case of interference and issues regarding the employer’s subjective state of mind are only germane at all in an interference case where the employer has asserted as an affirmative defense that it acted in good faith for a bona fide business purpose, i.e., for determining whether the employer acted for the reason it has asserted. While the analysis differs depending upon the nature or severity of likely harm ascribed to the employer’s conduct, regardless of how one gets there, an interference violation will be found when the resulting harm to protected rights outweighs the business justification or other defense asserted by the employer. more or view all topics or full text.	43	150	03/07/19
2627E	Oroville Union High School District * * * PARTIALLY VACATED by Oroville Union High School District (2019) PERB Decision No. 2627a * * * 1000.02117: SCOPE OF REPRESENTATION; Released Time * * * VACATED IN PART ON OTHER GROUNDS by Oroville Union High School District (2021) PERB Decision No. 2627a * * * Time necessary to prepare for negotiations is a part of the negotiations process and, thus, qualifies for statutory released time under EERA section 3543.1, subdivision (c), subject to reasonableness and any agreement between the parties. more or view all topics or full text.	43	141	02/22/19
2620M	City of Hayward and Service Employees International Union Local 1021 1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated Based on the Board’s review of the parties’ joint request and their settlement agreement, and the entire record, the Board found granting the request to be in the best interest of the parties and consistent with the purposes of the MMBA to promote harmonious labor relations. more or view all topics or full text.	43	119	01/08/19
2618E	Antelope Valley Community College District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Next, we turn to the Federation’s contention that all affected unit employees are entitled to the above-described remedy regardless of whether the Federation proved that each one opposed the District’s workweek change. We concur with the Federation’s view for two principal reasons. First, we must adopt that approach in order to effectuate the purposes of EERA. We cannot give effect to undocumented and unproven employee “approvals,” especially since the District claims to have obtained these approvals when it refused to honor a contractually-required majority vote and unilaterally adopted a new policy allowing for one-on-one discussions in which supervisors could extract “approvals” from individual employees. Second, the Federation’s approach is more consistent with precedent. As noted, PERB orders make whole relief to compensate employees for the difference between what they actually earned and what they would have earned, but for the employer’s illegal conduct. more or view all topics or full text.	43	113	12/28/18
2618E	Antelope Valley Community College District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Although back pay calculations are a matter for compliance, the parties’ exceptions indicate that our remedy requires clarification in order to provide guidance for the compliance process. We first address the District’s primary argument in its cross-exceptions, which relates to the measure of make whole relief, and we conclude as follows, using an example of an employee working four nine-hour days and one four-hour day. But for the District’s unilateral change, the employee’s ninth hour of work on the first four days of the week would earn either wages or compensatory time off at a premium time-and-a-half rate, per the contract; the District would have a choice between those two options, also per the contract. Thus, such an employee should earn either 42 hours of pay for the week, or should receive 40 hours of pay plus two hours of compensatory time off, at the District’s option. The District is wrong to the extent it suggests that it may choose the compensatory time off option and then offset the employee’s half day off on Friday afternoon against the two hours of compensatory time it owes the employee. That is an analytical error, as an employee who works 40 hours in a week has not used any compensatory time off that week. more or view all topics or full text.	43	113	12/28/18
2618E	Antelope Valley Community College District 603.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees Here, the ALJ cited State of California (Department of Motor Vehicles) (1999) PERB Dec. No. 1347-S (DMV) to support his conclusion that article 11.2 authorized the District to deal directly with unit employees regarding workweek modifications. However, the plain language of the contract in DMV unambiguously waived the union’s right to bargain. Specifically, it allowed the employer to “establish, pursuant to an operational need or a request by either a [union] representative or an employee, flexible work hours.” (Id., adopting partial dismissal letter, p. 2, emphasis added.) In other words, changes to work hours did not require any employee or union approval, and certainly did not require approval by the majority of affected employees. This is not the case here. In these circumstances, the District’s decision to discuss workweek modifications with every employee individually had the effect of nullifying its contractual duty to obtain majority approval. The District sought to obtain a waiver or modification of its contractual promise not to impose modified workweeks without first obtaining the approval of the majority of affected employees. Under our law, this conduct constitutes a paradigmatic example of direct dealing. more or view all topics or full text.	43	113	12/28/18
2618E	Antelope Valley Community College District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy While the parties’ past practice in this case may have been sufficient to meet the Pajaro standard, we need not reach that question, because the inquiry is fundamentally different when the parties’ past practices are considered to help define the meaning of contract language. In such situations, we scrutinize the parties’ application of their own agreement in order to discern its meaning: This rule of practical construction is predicated on the common sense concept that “actions speak louder than words.” Words are frequently but an imperfect medium to convey thought and intention. When the parties to a contract perform under it and demonstrate by their conduct that they knew what they were talking about the courts [and the Board] should enforce that intent. more or view all topics or full text.	43	113	12/28/18
2618E	Antelope Valley Community College District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy The parties’ practical construction of a contract, as shown by their actions, is important evidence of their intent, and helps us to resolve ambiguities in the contract. (See Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 753 (Crestview Cemetery Assn.); Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1814.) more or view all topics or full text.	43	113	12/28/18