Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2647E	Los Angeles Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The degree to which evidence constitutes persuasive support for an employer’s affirmative defense necessarily changes with the nature of the adverse action itself. Thus, depending on the quality of the prima facie case, uncorroborated testimony from a single witness is unlikely to be persuasive in the context of a termination premised on a pattern of misconduct. On the other hand, such testimony could well suffice to justify a written warning. Since this case arises from a unique, non-disciplinary displacement of numerous employees, it is necessary to contextualize these decisions before evaluating the persuasiveness of the District’s evidence in support of its non-discriminatory motivations. more or view all topics or full text.	43	197	06/12/19
2647E	Los Angeles Unified School District 503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities Involuntary displacement from former teaching position resulting from magnet school conversion constitutes an adverse action under EERA. more or view all topics or full text.	43	197	06/12/19
	1309.08000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Classroom Teachers PERB must honor the truism that a rebuttable presumption can be rebutted. Indeed, if the Peralta presumption is not overcome in this case—where there is no evidence that employer efficiency is unduly impaired, the community of interest is not strong, extent of organization weighs heavily toward excluding substitutes, a majority of substitutes performed no work in the school year, and the number of substitutes is almost as high as the number of regular teachers—then parties may have reason to wonder what facts might overcome the presumption. In our view, these facts are sufficient. more or view all topics or full text.
A472E	St. Hope Public Schools 1309.02000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Bargaining/Representation History The OGC’s over-emphasis on the traditional community of interest factors prevented the AD from giving proper weight to the fact that the organizing campaign took place almost exclusively among the regular staff, a majority of whom supported SCTA as their exclusive representative. In other words, the AD did not comply with Peralta and EERA section 3545, subdivision (a), which requires the Board to consider established practices, including the extent to which employees in the requested unit have organized themselves into a coherent bargaining unit. In our view, particularly given that day-to-day substitutes’ community of interest with the rest of the unit was weaker than average, the evidence regarding extent of organization is sufficient to tip the analytical balance, rebut the presumption favoring a comprehensive unit, and demonstrate the appropriateness of the requested unit. more or view all topics or full text.	43	86	12/06/18
A472E	St. Hope Public Schools 1309.08000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Classroom Teachers In Peralta Community College District (1978) PERB Decision No. 77 (Peralta), the Board interpreted EERA section 3545 as creating a rebuttable presumption that all classroom teachers should be placed in the same unit. To rebut the presumption, [a petitioner] has the burden to show that its proposed unit is more appropriate than one including day-to-day substitutes, based on three factors: (1) community of interest; (2) established practices including the extent to which employees in different categories have selected [the petitioner] as their representative; and (3) employer efficiency. (EERA, § 3545, subd. (a).) more or view all topics or full text.	43	86	12/06/18
2580S	Cal Fire Local 2881 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Although PERB follows federal precedent protecting certain communications under specified circumstances (see, e.g., State of California (Department of Corrections) (1995) PERB Decision No. 1104-S, pp. 16-20 [endorsing quasi-privileges/protections under Cook Paint and Varnish Co. v. NLRB (D.C. Cir. 1981) 648 F.2d 712 and Johnnie's Poultry Co. (1964) 146 NLRB 770]; Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113, p. 6 [endorsing protections under Berbiglia, Inc. (1977) 233 NLRB 1476]), the California Evidence Code presently includes no privilege protecting communications between a grievant and a non-attorney union representative. (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 888–896.) more or view all topics or full text.	43	43	08/17/18
2580S	Cal Fire Local 2881 800.01000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; In General; Prima Facie Case The law does not impose any obligation to represent employees, unless the exclusive representative possesses the exclusive means by which such member can vindicate an individual right, and the right in question derives from a collective bargaining agreement. (National Education Association-Jurupa (Norman) (2014) PERB Decision No. 2371, pp. 14-15.) A Name-Clearing hearing and State Personnel Board appeal are statutory rather than collectively-bargained for. Therefore, a union owes employees no duty of fair representation in either of these contexts. more or view all topics or full text.	43	43	08/17/18
A467E	Berkeley Unified School District 1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief Employer may be required to restore e-mail access privileges as part of a make-whole award. more or view all topics or full text.	43	39	08/06/18
A472E	St. Hope Public Schools 1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit In Peralta Community College District (1978) PERB Decision No. 77 (Peralta), the Board interpreted EERA section 3545 as creating a rebuttable presumption that all classroom teachers should be placed in the same unit. To rebut the presumption, [a petitioner] has the burden to show that its proposed unit is more appropriate than one including day-to-day substitutes, based on three factors: (1) community of interest; (2) established practices including the extent to which employees in different categories have selected [the petitioner] as their representative; and (3) employer efficiency. (EERA, § 3545, subd. (a).) more or view all topics or full text.	43	86	12/06/18
	1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief Employer may be required to restore e-mail access privileges as part of a make-whole award. more or view all topics or full text.
2651E	Mt. San Jacinto Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General As part of its defense of a charge of retaliatory discipline, employer need not prove that the employee’s protected activity was “was so opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference with [the employer’s] operations.” PERB uses this standard to determine whether an employee communication that would otherwise be protected under the relevant statute lost its protection because of its content or the manner in which it was communicated. This standard does not apply outside the employee communication context. more or view all topics or full text.	44	15	06/24/19
2647E	Los Angeles Unified School District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case When a school district involuntarily displaces teachers in connection with its decision to create a magnet school, the Board will evaluate the district’s motivations under the traditional test for discrimination set out in Novato Unified School District (1982) PERB Decision No. 210. more or view all topics or full text.	43	197	06/12/19
2590E	Petaluma City Elementary School District/Joint Union High School District 401.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation Following remand and a formal hearing in this case, the ALJ concluded that the District interfered with protected rights, as alleged in the complaint, when, on September 5, and October 10, 2014, its agents sent e-mail messages prohibiting employees from distributing “flyers of a political or union nature” and from “handing out pamphlets” anywhere on the District’s premises at any time during the workday, without regard to non-duty time, such as employee breaks, or to unofficial “downtime” to the extent the District authorizes or permits limited employee solicitation for other non-work-related causes during worktime. (See, Petaluma, supra, PERB Decision No. 2485, pp. 50-51.) In finding liability on both counts of interference, the ALJ relied, in part, on uncontested testimony from Local 1881-represented employees that they had received the District’s September 5, 2014 and October 10, 2014 e-mail messages. more or view all topics or full text.	43	65	10/22/18
2579M	County of Monterey 1100.01000: CASE PROCESSING PROCEDURES; CHARGE; In General/Prima Facie Case When a charge alleges the existence of a past practice, the charging party must specifically identify and describe the practice allegedly altered by a unilateral change. However, when, as here, the charging party alleges the employer has established a new policy where none previously existed, “[t]here is no way to more specifically allege the non-existence of something than to state it did not exist.” more or view all topics or full text.	43	33	07/20/18
2579M	County of Monterey 602.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); New Policy or Application or Enforcement of Existing Policy in New Way Absent a clear and unmistakable waiver of the union’s right to bargain, an employer may not unilaterally add new terms to an existing collective bargaining agreement or adopt or enforce new rules of conduct where previously none had existed. This prohibition extends to the enforcement of existing rules. An employer’s more stringent enforcement of an existing policy constitutes a different term or condition of employment for which notice and opportunity to bargain is necessary. (Venture Packaging (1989) 294 NLRB 544, 550; Fry Foods, Inc., supra, 241 NLRB 76, 93; Master Slack (1977) 230 NLRB 1054, 1055-1056.) more or view all topics or full text.	43	33	07/20/18
2687H	Trustees of the California State University (Northridge) 503.15000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Other The initiation of an investigation into allegations which could lead to disciplinary action by the employer may be considered to be an adverse action against the investigated employee, regardless of whether disciplinary action actually results. [Citations.] This is true for investigations initiated at the behest of management [citation], and those that were undertaken as a result of complaints against the employee made by another employee or third parties, including by representatives of the union. [Citations.] (Adopting proposed decision at p. 31.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 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 subjective reactions of the employee. [Citation.] “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.” [Citation.] (Adopting proposed decision at pp. 30-31.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Where there is evidence that the respondent’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.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” [Citation.] (Adopting proposed decision at p. 38.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 409.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity An employer’s conduct during an investigation can be unlawful even if the employer lawfully decided to investigate potential misconduct. (p. 5, fn. 6.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Investigations into employee misconduct may serve a legitimate business purpose. PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in their exercise of protected rights. Although a charging party can establish a prima facie case of interference without evidence of the employer’s motive, we may examine motive at the affirmative defense stage of our analysis if the charging party alleges that the employer’s purported business justification was pretextual or was not the “but for” cause of the employer’s action. (p. 4.) PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.) more or view all topics or full text.	44	109	12/13/19
2687H	Trustees of the California State University (Northridge) 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards A prima facie case of interference is established by evidence that an employer’s conduct tends to or does result in some harm to employee rights under our statutes. Once a charging party has established a prima facie case of interference, the burden shifts to the employer. The employer’s burden is dictated by the degree of harm involved. Where the employer’s conduct causes or tends to cause only slight harm to protected rights, the employer may justify its actions based on “operational necessity,” and PERB will then balance the employer’s asserted interests against the harm to protected rights; if the harm to employee rights outweighs the asserted business justification, a violation will be found. On the other hand, if the harm is “inherently destructive of protected rights,” the employer must show that the interference was caused by circumstances beyond its control and that no alternative course of action was available. (pp. 3-4.) more or view all topics or full text.	44	109	12/13/19
2600M	County of Ventura 1300.01000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; In General Board ordered the County to process the Union’s certification petition and any future petition the Union may file with respect to Clinic employees, to provide reasonable lists of Clinic employees and associated information, and to cease and desist from enforcing a personnel rule limiting the timeframe that petitions may be filed by the Union. more or view all topics or full text.	43	87	12/07/18
2600M	County of Ventura 1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General The Board ordered the County to process the Union’s certification petition and any future petition the Union may file with respect to Clinic employees, to provide reasonable lists of Clinic employees and associated information, and to cease and desist from enforcing a personnel rule limiting the timeframe during which petitions may be filed by Union. An order to provide such lists is appropriate given that the County has substantially frustrated employee rights by refusing to comply with the Board’s 2009 order and relitigating the extent to which it is an employer of Clinic employees. Board does not issue the more severe remedy—a bargaining order—because it has no basis to conclude that Union attained majority status. In the absence of a bargaining order it is appropriate for the County to provide a list of Clinic employees. While Board cannot undo past delays, this remedy will help to minimize future delays while balancing all competing interests. (p. 44 & fn. 50.) more or view all topics or full text.	43	87	12/07/18
2600M	County of Ventura 201.04000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; Joint Employer, Single Employer, and Alter Ego Doctrines Board maintains jurisdiction over an employer covered under a PERB-administered statute when it enters into a single employer or joint employer relationship with an entity over which PERB does not assert jurisdiction. Thus, PERB maintains jurisdiction over the County, as it is covered by the MMBA and has entered into both a single employer and joint employer relationship role with respect to private non-profit Clinic employees, even if Clinic corporations fall outside PERB jurisdiction. (p. 39-40.) A single employer relationship, like a joint employer relationship, is not a formal merger of separate entities, but rather is a legal construct for collective bargaining purposes. (California Virtual Academies (2016) PERB Decision No. 2484, p. 67 (CAVA) [“Under the single employer doctrine, the ‘single employer’ is . . . an analytical construct that is imposed under judicially developed doctrines on legally distinct but nominally separate and functionally integrated entities solely for the purpose of representation and collective bargaining” (Emphasis in original)].) (pp. 40-41.) Just as PERB will not assert jurisdiction over a private sector entity merely because it enters into a joint employer or single employer relationship with a PERB-covered entity, PERB also does not lose jurisdiction over an entity that enters into a single employer or joint employer relationship with an entity over which we do not assert jurisdiction. This conclusion follows from the principle that a single employer or joint employer relationship is a legal construct for purposes of collective bargaining; it does not mean that two separate entities have legally merged into one. (p. 41.) more or view all topics or full text.	43	87	12/07/18