| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A507M | City of Stockton 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General PERB reviews an MMBA factfinding request only to determine whether the request was procedurally proper, meaning that (1) there was a written declaration of impasse from either party, or a mediator was appointed or selected to assist the parties in bridging their bargaining differences; and (2) the factfinding request was timely filed after one of these triggering events. (City of Compton (2023) PERB Order No. Ad-506-M, p. 4.) (p. 5.) more or view all topics or full text. | 48 | 97 | 12/21/23 |
| 2884H | Regents of the University of California 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Accretions are more common in the public sector given that PERB’s accretion precedent deviates significantly from federal law. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 28; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 5-9, affd. Regents of the University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159.) (p. 11.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 1107.13000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative and Judicial Notice The Board took permissive administrative notice of the parties’ CBA. (See, e.g., Bell v. City of Torrance (1990) 226 Cal.App.3d 189, 192 fn. 2 [taking judicial notice of public sector collective bargaining agreement].) (p. 8, fn. 8.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 608.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; In General After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Pending first contract negotiations (after employees in a previously unrepresented unit become represented), the status quo regarding wage adjustments is measured by employees’ previous expectation. (Daily News of Los Angeles v. National Labor Relations Bd. (D.C. Cir. 1996) 73 F.3d 406, 411-414 (Daily News), cited with approval in County of Kern (2018) PERB Decision No. 2615-M, p. 7, fn. 6; Liberty Telephone & Communication, Inc. (1973) 204 NLRB 317, 318.) (pp. 14-15 & fn. 13.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 502.01000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General During the timeframe that the University litigated the accretion petition’s merits, the petitioned-for class remained unrepresented and the University had no bargaining obligation with respect to the petitioned-for class, but the University would have discriminated against protected activity had it used the pending unit modification petition as a reason to deny the petitioned-for class the wage adjustments due to them as unrepresented employees. (See, e.g., Regents of the University of California (1997) PERB Decision No. 1188-H, pp. 31 & 36 [University discriminated against protected activity by failing to implement wage adjustments for nonexclusively represented employees because representation petition was pending; as a remedy, University ordered to implement such adjustments retroactively].) (p. 13.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case To prove discrimination, a charging party must prove by a preponderance of the evidence that the respondent acted with an improper motive, intent, or purpose. (Contra Costa Fire Protection District (2019) PERB Decision No. 2632-M. p. 40 (Contra Costa).) A charging party may do so using either of two frameworks. First, under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 and its progeny, the charging party’s prima facie case requires each of four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) Alternatively, if conduct facially discriminates based on protected activity, that is “discrimination in its simplest form,” and PERB may infer unlawful discrimination without further evidence of motive. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 27; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) Common examples of facial discrimination include: (1) providing different pay, benefits, or other working conditions based explicitly on union membership or other protected activity; and (2) changing policies in response to protected activity. (City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11 (Yuba City).) The conduct at issue may, but need not, involve disparate conduct toward different employee groups. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 81; LA Superior Court, supra, PERB Decision No. 2566-C, p. 15.) If an employer extends a benefit or increase to an unrepresented employee group while withholding it from a represented employee group (or vice versa), that can establish discrimination under either or both above standards, unless the difference is legitimately based on a non-discriminatory business reason. (Contra Costa, supra, PERB Decision No. 2632-M, pp. 41-42.) The employer has the burden to prove that the difference is based on a non-discriminatory reason, which may include differing skills, qualifications, or duties, market pressures, promotional incentives, or lawful collective bargaining in which a union has exerted pressure to achieve better terms than other employee groups, traded one benefit for another, or rejected a nondiscriminatory offer and thereby fallen behind other groups. (Id. at pp. 38-42 & 51-52; Yuba City, supra, PERB Decision No. 2603-M, pp. 11-13; LA Superior Court, supra, PERB Decision No. 2566-C, pp. 15-17.) (pp. 15-17.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB accordingly considers federal precedent only for its potential persuasive value. (The Accelerated Schools (2023) PERB Decision No. 2855, pp. 20-31; Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19; City of Bellflower (2020) PERB Order No. Ad-480-M, p. 11.) (p. 10, fn. 9.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2881E | West Contra Costa Unified School District 1402.04000: GENERAL LEGAL PRINCIPLES; WAIVER; By Acquiescence/Conduct To establish waiver of the right to bargain based on conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) (pp. 17-18.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses Absent a specific agreement to the contrary, an unratified tentative agreement generally has no effect. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) The Board rejected the union’s argument that the District changed or deviated from the status quo by not following the seniority criteria for temporary employees set out in the parties’ tentative agreement because the record contained no evidence that the parties agreed to apply certain tentative agreements prior to overall ratification. (p. 10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General The appropriate remedy for an employer’s unlawful unilateral change normally includes at least an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 37-38; Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 64.) (p. 18.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1109.02000: CASE PROCESSING PROCEDURES; ISSUES ON APPEAL; Statute of Limitations The six-month limitations period for an unfair practice charge begins once the charging party knows, or should know, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) For OGC to issue a complaint, the charging party must allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3 & 30.) After OGC issues a complaint, the respondent bears the burden to plead untimeliness as an affirmative defense and to prove that the statute of limitations bars the charge. (Id. at p. 30.) District failed to establish statute of limitations defense, as union filed charge within six months of learning that the District was using responses to its non0binding survey to assign work opportunities. (pp. 8-9.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations Even if alleged change fell outside the complaint, the record satisfied each element of the unalleged violation doctrine given that: (1) the District had adequate notice and opportunity to defend given the content of union’s charge and opening statement [unilateral change in scheduling/assignment of ESL teachers in summer 2021]; (2) the acts or omissions at issue were intimately related to the subject matter of the complaint and were part of the same course of conduct; (3) the parties fully litigated the allegations; and (4) the parties had the opportunity to examine and cross-examine witnesses regarding the acts or omissions at issue. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, p. 14.) (pp. 13-14, fn. 10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations Unilateral change bargaining violation derivatively interfered with protected union and employee rights. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 2 & 54.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1103.03000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint Employer did not argue that alleged unilateral change falls outside the complaint, and in any event such an argument would be untenable given that PERB follows notice pleading principles. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, p. 15; accord Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [because administrative proceedings are not bound by strict rules of pleading, a party cannot complain that proof varied from allegations, absent a due process violation].) (p. 13.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General The six-month limitations period for an unfair practice charge begins once the charging party knows, or should know, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) For OGC to issue a complaint, the charging party must allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3 & 30.) After OGC issues a complaint, the respondent bears the burden to plead untimeliness as an affirmative defense and to prove that the statute of limitations bars the charge. (Id. at p. 30.) (p. 8.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1000.02069: SCOPE OF REPRESENTATION; Job Assignment Procedures for assigning courses to adult education teachers fall within the scope of representation. (Pittsburg Unified School District (2022) PERB Decision No. 2833, p. 9.) Precedent is clear that employee schedules and assignments are fully bargainable, even though there is no duty to bargain over student schedules. (Id. at p. 10.) (pp. 14-15.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated Establishing a bona fide emergency/necessity at most alters the nature of an employer’s bargaining obligation and does not change the scope of representation. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 28-29 & 32-34 [pandemic did not alter scope of bargaining; rather, it permitted employer to make life-saving decisions without reaching an impasse or agreement, while providing notice and an opportunity to bargain as practicable].) (p. 15.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To establish waiver of the right to bargain based on conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) Moreover, unratified CBA language cannot form the basis for asserting a management right, absent explicit agreement of the parties. (pp. 17-18.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) (p. 12.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Absent a specific agreement to the contrary, an unratified tentative agreement generally has no effect. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) The Board rejected the union’s argument that the District changed or deviated from the status quo by not following the seniority criteria for temporary employees set out in the parties’ tentative agreement because the record contained no evidence that the parties agreed to apply certain tentative agreements prior to overall ratification. (p. 10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo The record did not support the District’s claim it had a practice of assigning work opportunities at its discretion. But even if it did, such a history would not privilege the District to continue making such discretionary decisions without bargaining. (County of Kern (2018) PERB Decision No. 2615-M, pp. 6-9 [employer’s changes are consistent with a dynamic status quo only if the changes follow a nondiscretionary pattern of change].) (p. 12.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception A union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) The Board found that principle especially significant where the District first deviated from its past practice in Spring 2020, when the pandemic privileged it to do so without reaching an impasse or agreement, provided that the District bargained in good faith as practicable. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 32-34.) Because an emergency is not a static event, changes taken during an emergency must be limited to the timeframe that the emergency requires. (Id. at p. 35.) Thus, as the pandemic began to ease and the District moved back toward in-person instruction, the District could have lawfully returned to its established, pre-COVID procedures for assigning and scheduling ESL courses, or it could have bargained with ASTU if it wished to change to a new system. (pp. 12-13.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
