Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2654E	Claremont Unified School District 503.15000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Other Placing documents that could support future discipline in an employee’s personnel file is an adverse action. The document need not be disciplinary itself or include a threat of discipline; it is enough that the document conclusively accuses the employee of misconduct or substandard performance. (pp. 14-15.) The District’s Cease and Desist Letter definitively accused the employee—already facing potential dismissal for inappropriate conduct—of “once again” insubordinately engaging in inappropriate communications contrary to prior directives. Because the letter warned the employee that further such communications may be used to amend pending disciplinary charges and advised that it would be placed in his personnel file, a reasonable person in the employee’s place would consider the letter adverse to his or her employment. (pp. 15-16.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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 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 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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 for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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
2667P	San Diego Metropolitan Transit System 1309.15000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); PUC Transit District Units Employee preference alone is not sufficient to justify severance of a separate bargaining unit. PERB must determine based on the totality of the evidence presented at the hearing whether severance of the requested unit is appropriate. (pp. 33-34.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General Under PERB Regulation 93080, when deciding transit district representation cases under the Public Utilities Code, the Board shall apply the relevant federal law and administrative practice developed under the Labor Management Relations Act, 1947, as amended. (p. 17.) In doing so, the Board shall apply federal law unless (1) the question presented is governed by an explicit provision of the applicable transit district act, or (2) considerations unique to public sector labor relations require deviation from federal law. (pp. 17-18.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General Under PERB Regulation 93025, a determination by SMCS in a transit district representation case arising under the Public Utilities Code is appealable to the Board itself. (p. 17, fn. 9.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General PERB Regulation 93040, governing hearings before SMCS, does not prohibit consideration of hearsay evidence. SMCS and the Board may thus consider hearsay evidence while taking into account its hearsay nature when determining how much evidentiary weight to give it. (p. 30, fn. 21.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Under PERB Regulation 93080, when deciding transit district representation cases under the Public Utilities Code, the Board shall apply the relevant federal law and administrative practice developed under the Labor Management Relations Act, 1947, as amended. (p. 17.) In doing so, the Board shall apply federal law unless (1) the question presented is governed by an explicit provision of the applicable transit district act, or (2) considerations unique to public sector labor relations require deviation from federal law. (pp. 17-18.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Under PERB Regulation 93025, a determination by SMCS in a transit district representation case arising under the Public Utilities Code is appealable to the Board itself. (p. 17, fn. 9.) more or view all topics or full text.	44	60	09/06/19
2667P	San Diego Metropolitan Transit System 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) PERB Regulation 93040, governing hearings before SMCS, does not prohibit consideration of hearsay evidence. SMCS and the Board may thus consider hearsay evidence while taking into account its hearsay nature when determining how much evidentiary weight to give it. (p. 30, fn. 21.) more or view all topics or full text.	44	60	09/06/19
2654E	Claremont Unified School District 300.01000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; In General EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 300.04000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Individual/Concerted/Activities/Self-Representation EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards Interference does not require evidence of unlawful motive, only that the employer conduct at issue tends to or does create at least slight harm to employee rights. If the prima facie case is established, PERB balances the degree of harm to protected rights against any legitimate and substantial business justification asserted by the employer. (p. 20, 22.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont 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. (p. 20.) In cases involving broad no-contact directives, the employer bears the burden of proving the existence of an operational necessity for the directive as to that specific employee under the particular circumstances. (pp. 20-21.) The key to an appropriate directive is that it be tailored to the circumstances, particularly the unprotected conduct, at issue. (pp. 23-24.) A blanket prohibition on any communications with other District employees based on asserted concerns regarding harassment and intimidation is overbroad where the employee’s precipitating communication was neither harassing nor intimidating. (p. 23.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity 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. (p. 20.) In cases involving broad no-contact directives, the employer bears the burden of proving the existence of an operational necessity for the directive as to that specific employee under the particular circumstances. (pp. 20-21.) The key to an appropriate directive is that it be tailored to the circumstances, particularly the unprotected conduct, at issue. (pp. 23-24.) A blanket prohibition on any communications with other District employees based on asserted concerns regarding harassment and intimidation is overbroad where the employee’s precipitating communication was neither harassing nor intimidating. (p. 23.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.) An overbroad directive prohibiting an employee from “discussing his working conditions with his coworkers” violates this right, even if the directive allows him to communicate with his union representatives, including those who are also employees. (pp. 21-22.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 409.02000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Conduct Ineffective A finding of interference, coercion, or restraint does not require evidence that any employee subjectively felt threatened or intimidated, or was in fact discouraged from participating in protected activity; the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity. Thus, the fact that an employer’s no-contact order did not stop a particular employee from continuing to engage in protected communications does not preclude a finding that the order would have discouraged a reasonable employee from doing so. (p. 22.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case To establish a prima facie case of retaliation in violation of the EERA, the charging party must show that: (1) the employee exercised rights under EERA, (2) the employer had knowledge of the exercise of those rights, (3) the employer took adverse action against the employee, and (4) the employer took the action because of the exercise of those rights. (p. 13.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence 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.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence 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.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence 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 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General The Board uses an objective standard to determine whether an employer’s action is adverse and will not rely on either the employee’s subjective reaction or the employer’s intent. (pp. 14, 15.) The test is whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. (p. 14.) more or view all topics or full text.	44	24	07/10/19
2654E	Claremont Unified School District 503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations Placing documents that could support future discipline in an employee’s personnel file is an adverse action. The document need not be disciplinary itself or include a threat of discipline; it is enough that the document conclusively accuses the employee of misconduct or substandard performance. (pp. 14-15.) The District’s Cease and Desist Letter definitively accused the employee—already facing potential dismissal for inappropriate conduct—of “once again” insubordinately engaging in inappropriate communications contrary to prior directives. Because the letter warned the employee that further such communications may be used to amend pending disciplinary charges and advised that it would be placed in his personnel file, a reasonable person in the employee’s place would consider the letter adverse to his or her employment. (pp. 15-16.) more or view all topics or full text.	44	24	07/10/19
2667P	San Diego Metropolitan Transit System 1309.12000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Skilled Crafts A unit of skilled craft workers may be severed from an existing represented unit in California’s public transit district systems. The question is whether the proposed bargaining unit is an appropriate skilled craft unit. (p. 18.) more or view all topics or full text.	44	60	09/06/19