Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2674M	Orange County Employees Association (Hamilton) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board Although the Board reviews exceptions to a proposed decision de novo, to the extent an adopted proposed decision properly resolves issues underlying particular exceptions, the Board need not further address those exceptions. (p. 7.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver Although the Board reviews exceptions to a proposed decision de novo, to the extent an adopted proposed decision properly resolves issues underlying particular exceptions, the Board need not further address those exceptions. (p. 7.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 800.05000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Mode or Adequacy of Representation/Advocacy Though mere negligence or poor judgment in handling a grievance do not constitute a breach of the duty of fair representation, a union’s negligence may rise to the level of arbitrary conduct in cases where the individual interest is strong and the union’s failure to perform a ministerial act completely extinguishes the employee’s right to pursue his claim. (p. 8.) When a union’s failure to fairly represent an employee in grievance processing is so extreme that it cannot be relied on to represent the employee further in the proceeding, potential remedies include an order to pay outside counsel to represent the employee or to reimburse the employee’s attorney fees. (pp. 8-9.) Attorney fees, however, may only be awarded when the employee hires private counsel to pursue the claims in the grievance impacted by the union’s unlawful conduct. (p. 10.) Because the employee’s lawsuit against her employer did not encompass the MOU violation alleged in her grievance, attorney fees were not justified as damages for the union’s violation. (p. 11.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 800.01000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; In General; Prima Facie Case Though mere negligence or poor judgment in handling a grievance do not constitute a breach of the duty of fair representation, a union’s negligence may rise to the level of arbitrary conduct in cases where the individual interest is strong and the union’s failure to perform a ministerial act completely extinguishes the employee’s right to pursue his claim. (p. 8.) When a union’s failure to fairly represent an employee in grievance processing is so extreme that it cannot be relied on to represent the employee further in the proceeding, potential remedies include an order to pay outside counsel to represent the employee or to reimburse the employee’s attorney fees. (pp. 8-9.) Attorney fees, however, may only be awarded when the employee hires private counsel to pursue the claims in the grievance impacted by the union’s unlawful conduct. (p. 10.) Because the employee’s lawsuit against her employer did not encompass the MOU violation alleged in her grievance, attorney fees were not justified as damages for the union’s violation. (p. 11.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent Analogous federal precedent, while not controlling, often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 7, fn. 7.) more or view all topics or full text.	44	76	10/15/19
2674M	Orange County Employees Association (Hamilton) 101.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General Analogous federal precedent, while not controlling, often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 7, fn. 7.) more or view all topics or full text.	44	76	10/15/19
A474E	Sonoma County Junior College District 1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated As part of the Board’s authority to take any action in a pending case that the Board deems necessary to discharge its duties and effectuate the purposes of the labor relations laws that PERB enforces, the Board has discretion to grant or deny requests to withdraw and dismiss cases pending before the Board itself, as well as to vacate or otherwise withdraw administrative determinations and other decisions or orders issued at any level of PERB. (EERA, § 3541.3, subds. (i) and (n); MMBA, § 3509, subd. (a); City of Santa Rosa (Fire Department) (2019) PERB Decision No. 2653-M, p. 2.) Board found union’s unopposed request to withdraw its appeal and the underlying unit modification petition, and to vacate administrative determination pursuant to a settlement agreement between the parties, to be consistent with EERA’s purpose of promoting harmonious labor relations. Matter closed and compliance deemed complete. more or view all topics or full text.	44	46	08/12/19
2614Ea	Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279 1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs Employer renewed request for monetary sanctions against charging party with lengthy history of filing repetitive unfair practice charges that feature frivolous claims and/or which seek to relitigate issues that have already been resolved dismissed without prejudice. Charging party may be subject to monetary sanctions should she continue to abuse PERB processes. more or view all topics or full text.	44	41	08/08/19
2614Ea	Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279 1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General Employer renewed request for monetary sanctions against charging party with lengthy history of filing repetitive unfair practice charges that feature frivolous claims and/or which seek to relitigate issues that have already been resolved dismissed without prejudice. Charging party may be subject to monetary sanctions should she continue to abuse PERB processes. Moreover, litigation sanctions ordered against a charging party with history of filing repetitive and frivolous unfair practice charges remain in effect. more or view all topics or full text.	44	41	08/08/19
2684E	Modoc County Office of Education 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest PERB’s standard remedy for an employer’s unlawful unilateral change includes appropriate make-whole relief including back pay and benefits with interest. (p. 19.) Limited back pay remedy appropriate where employer reduced employee’s daily work hours, and employee later obtained sufficient hours to return to the prior status quo. (p. 20.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General PERB’s standard remedy for an employer’s unlawful unilateral change includes a cease-and-desist order. (p. 19.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 1404.03000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; General Principles of Contract Interpretation In interpreting a contract, the Board relies on traditional rules of contract interpretation and uses the California Civil Code as a guide. Hence, the Board begins analyzing a contract by examining the parties’ intent, as demonstrated by the ordinary and plain meaning of the contract language. (p. 15.) When contract terms are ambiguous, PERB may look to extrinsic evidence such as bargaining history to discern the parties’ intent. Bargaining proposals and parties’ discussions of those proposals are the most probative forms of extrinsic evidence in interpreting a collective bargaining agreement. Testimony regarding a party’s subjective understanding of a contract provision is of minimal value absent evidence that the parties mutually discussed their respective understandings during bargaining. (pp. 16-17.) PERB may ascertain established policy from past practice where the contract is silent or ambiguous as to a policy. (p. 17.) “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.” [Citation.] However, evidence of past practice based upon a union’s acquiescence to a previous unilateral change is not relevant to a waiver defense because such acquiescence does not operate as a waiver of the right to bargain for all times. (p. 18.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 1404.02000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; Board's Jurisdiction To Interpret Contracts Although the Board does not have authority to resolve purely contractual disputes, it may interpret contracts when necessary to resolve an alleged unfair practice. (p. 15.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo Union’s failure to demand to bargain in past instances where the employer gave notice of a decision to reduce unit employees’ work hours did not waive union’s right to negotiate over any subsequent reduction of work hours. (p. 19.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer may take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. (p. 11.) A waiver of statutory rights must be “clear and unmistakable,” and the evidence must demonstrate an “intentional relinquishment” of a given right. (p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” [Citation.] “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” [Citation.] (pp. 11-12.) “Waiver is most readily apparent where the specific subject is covered by the express terms of an existing collective bargaining agreement.” [Citation.] To constitute a waiver, the contract language must “specifically reserve for management the right to take certain action or implement unilateral changes regarding the issues in dispute.” [Citation.] (p. 12.) Waivers must be specifically expressed or necessarily implied, and broadly-worded management rights clauses are often inadequate to constitute a waiver of the right to negotiate over a specific subject. (pp. 12-13.) PERB will not infer a waiver based upon contractual silence. (p. 16.) In order for PERB to find a waiver when contract language is ambiguous, the bargaining history must show a matter was “fully discussed” or “consciously explored” and the representative “‘consciously’ yielded its interest in the matter.’” [Citation.] (p. 17.) This standard was not met where the record contained no evidence of negotiations that led to the adoption of contract language claimed to constitute a waiver of the Union’s right to bargain over reductions in work hours. more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 1000.02157: SCOPE OF REPRESENTATION; Working Day/Work Time Employees’ daily work hours are within the scope of representation. (p. 10.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 1000.02076: SCOPE OF REPRESENTATION; Lay-Offs An employer’s decision to lay off employees is not a matter within the scope of representation, and only the effects of the layoff decision are negotiable. (p. 10.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 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 When the exclusive representative first learns of a change after the decision has been made, “by definition, there has been inadequate notice.” [Citation.] (p. 10.) more or view all topics or full text.	44	104	11/27/19
2684E	Modoc County Office of Education 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General To establish a prima facie case of an unlawful unilateral change, the charging party must show: (1) the employer took action to change policy; (2) the change in policy concerned a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action has a generalized effect or continuing impact on terms and conditions of employment. (pp. 9-10.) more or view all topics or full text.	44	104	11/27/19
2654E	Claremont Unified School District 505.03000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct The District argued it took adverse action against an employee in the larger context of his continuing harassing and intimidating behavior toward co-workers. The Board found this context of minimal weight where the conduct for which the employee received the adverse action was neither harassing nor intimidating. (pp. 17-19.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.) The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason justification for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General Under PERB Regulation 32300, the Board cannot consider matters not contained in the record when deliberating a party’s exceptions. Thus an external investigator’s report cited in the employer’s exceptions but that it failed to enter into the record could not be considered in determining whether the employer had a legitimate business justification for issuing an employee an order not to contact other employees. (p. 17, fn. 14.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Under PERB Regulation 32300, the Board cannot consider matters not contained in the record when deliberating a party’s exceptions. Thus an external investigator’s report cited in the employer’s exceptions but that it failed to enter into the record could not be considered in determining whether the employer had a legitimate business justification for issuing an employee an order not to contact other employees. (p. 17, fn. 14.) more or view all topics or full text.	44	24	07/10/19