Keyword Search by Headnotes

DecisionDescriptionPERC Vol.PERC IndexDate
2835H Regents of the University of California
411.01000: EMPLOYER MASS COMMUNICATIONS UNDER SECTION 3553; In General
Any mass communication addressing the general subject matter of union membership or dues is a communication “concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization” under section 3553, subdivision (b), regardless of whether the communication expresses any particular viewpoint on those subjects, or no viewpoint at all. A content neutral mass communication would not provide a defense to a section 3553 violation. (pp. 16-17.) more or view all topics or full text.
47 69 10/07/22
2835H Regents of the University of California
1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles
PERB’s fundamental task in statutory construction is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 20 (Regents); Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 32 (Region 2).) In construing a statute, we first examine the statutory language, “affording the words their ordinary and usual meaning.” (Region 2, supra, PERB Decision No. 2701-I, p. 33.) If the statutory language is clear, we generally assume the Legislature meant what it said. (Ibid.; State of California (Office of the Inspector General) (2019) PERB Decision No. 2660-S, p. 15.) Moreover, we are to give statutes a “reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers.” (Regents, supra, PERB Decision No. 2755-H, p. 20, internal citation omitted.) In doing so, we interpret a statutory provision with “reference to the whole system of which it is a part so that all may be harmonized and have effect.” (Ibid., internal citation omitted; Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14.) We turn to extrinsic aids such as legislative history and the wider historical circumstances of the statute’s enactment only when the plain meaning of a statute is unclear. (Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, pp. 16-17.) (p. 13.) more or view all topics or full text.
47 69 10/07/22
2835H Regents of the University of California
411.01000: EMPLOYER MASS COMMUNICATIONS UNDER SECTION 3553; In General
To state a prima facie case of a PEDD section 3553, subdivision (b) violation, an exclusive representative must show: (1) the employer’s communication is a “mass communication” that was delivered to multiple recipients; (2) the mass communication is one “concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization”; and (3) the employer did not meet and confer with the exclusive representative about the content of the mass communication before distributing it to employees. (pp. 12-17.) more or view all topics or full text.
47 69 10/07/22
A500E Pasadena Area Community College District
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulation 32700, subdivision (d) does not allow electronically signed proof of support from exclusively represented employees. For most of PERB’s history, the agency’s regulations have disallowed electronically signed proof of support. (Regents of the University of California (2018) PERB Order No. Ad-459-H, p. 4.) This partially changed on February 15, 2021, when revisions to PERB Regulation 32700 took effect. Revised Regulation 32700, subdivision (d)(4), added an electronic signature option for “employees who are not exclusively represented by an employee organization.” The plain language of the revised regulation thus left PERB’s longstanding requirement of original signatures unchanged for exclusively represented employees who wish to change or decertify their representative or sever themselves from a represented unit. (p. 7.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) (p. 5, fn. 5.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles
A cardinal rule of statutory construction is that we must give “meaning to every word of the statute, if possible, [to] avoid a construction that makes any word surplusage.” (Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, p. 16.) PERB’s regulations must be read as a whole so that every part is harmonized. (County of Santa Clara (2015) PERB Decision No. 2431-M, p. 16.) PERB cannot interpret a regulation in a manner that defeats its apparent purpose. In Region 2 Court Interpreter Employment Relations Committee & California Superior Courts Region 2 (2020) PERB Decision No. 2701-I, p. 36. (pp. 10-11.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles
The same interpretive principles apply to statutes and regulations. (Grossmont Union High School District (2018) PERB Order No. Ad-466, p. 3.) (p. 10, fn. 10.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
Regulation 32700 governs proof of support for all petitions filed with PERB, but it does not govern petitions filed with an employer under the Meyers-Milias-Brown Act, section 3500 et. seq. (MMBA), or other acts permitting an employer to establish local rules regarding representation. The MMBA grants employers certain discretion in establishing rules that balance employee rights and stable labor relations. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 13.) The Board expressed no opinion as to what rules on electronic proof of support such an employer may reasonably adopt. (p. 11, fn. 11.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
PERB Regulation 32700, subdivision (b) gives parties a full year to collect proof of support. (p. 9, fn. 7.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
PERB Regulation 32700, subdivision (d) does not allow electronically signed proof of support from exclusively represented employees. For most of PERB’s history, the agency’s regulations have disallowed electronically signed proof of support. (Regents of the University of California (2018) PERB Order No. Ad-459-H, p. 4.) This partially changed on February 15, 2021, when revisions to PERB Regulation 32700 took effect. Revised Regulation 32700, subdivision (d)(4), added an electronic signature option for “employees who are not exclusively represented by an employee organization.” The plain language of the revised regulation thus left PERB’s longstanding requirement of original signatures unchanged for exclusively represented employees who wish to change or decertify their representative or sever themselves from a represented unit. While the February 2021 regulatory changes allowed electronic signatures for unrepresented employees, the changes did not impose any new limit on represented employees’ ability to decertify or change representatives. Rather, represented employees retain the same rights to do so that they have had since EERA’s enactment. By allowing electronic signatures only in the limited instance of petitions to represent unrepresented employees, PERB declined to liberalize decertification processes, thereby rejecting a potentially destabilizing change. (pp. 7, 9.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1302.01000: REPRESENTATION ISSUES; DECERTIFICATION; In General; Filing Requirements
So long as there is no contract bar in effect, EERA allows a decertification petitioner the right to: (a) augment the proof of support it filed in conjunction with a pending petition; or (b) file a new petition if its initial petition was withdrawn or dismissed for insufficient proof of support. (American Indian Model Schools (2018) PERB Order No. Ad-468, pp. 1-2 [where petitioner claimed PERB denied it the opportunity to cure its proof of support, issue was moot because petitioner simply filed a new petition to the same effect].) In Pittsburg Unified School District (1978) PERB Order No. Ad-49, the Board explained the governing principles. First, the Board noted that PERB Regulations are silent on curing proof of support for decertification petitions, because that opportunity ceases whenever a new contract bar takes effect, meaning PERB cannot issue a regulation guaranteeing a set period to cure in all cases. (Id. at p. 3.) In contrast, when there is no contract bar in effect (including for all petitions to represent unrepresented employees and for decertification and severance petitions when the contract bar has lapsed), then the opportunity to cure exists at the very least because the petitioner can file a new petition. (Id. at p. 4.) (p. 12.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
When appealing an administrative determination, an appellant must show that the challenged decision departs from the Board’s precedent or regulations. (City and County of San Francisco (2022) PERB Order No. Ad-497-M, p. 15.) (p. 6.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) Interlocutory appeals are a subset of administrative appeals involving controlling issues of law the resolution of which will materially advance case resolution. (PERB Reg. 32200.) For that reason, “in most cases it is appropriate for a Board agent certifying an interlocutory appeal to the Board itself to pause activity in the case pending the Board’s resolution of the issue(s) on appeal.” (Regents of the University of California (San Francisco) (2023) PERB Order No. Ad-499-H, p. 8.) (p. 5, fn. 5.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in finding “that electronic, non-original signatures may be used for proof of support for decertification petitions under PERB Regulation 32700(d)(5).” The Board reversed the AD because the Board agent misconstrued the applicable regulation on proof of support. (p. 6.) more or view all topics or full text.
01/11/23
A500E Pasadena Area Community College District
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) Interlocutory appeals are a subset of administrative appeals involving controlling issues of law the resolution of which will materially advance case resolution. (PERB Reg. 32200.) For that reason, “in most cases it is appropriate for a Board agent certifying an interlocutory appeal to the Board itself to pause activity in the case pending the Board’s resolution of the issue(s) on appeal.” (Regents of the University of California (San Francisco) (2023) PERB Order No. Ad-499-H, p. 8.) (p. 5, fn. 5.) more or view all topics or full text.
01/11/23
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1402.04000: GENERAL LEGAL PRINCIPLES; WAIVER; By Acquiescence/Conduct
Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses
Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1402.01000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing
The ALJ issued a standard order requiring the employer to physically post and electronically distribute a notice to ensure that all affected employees learn the outcome of this matter. (City of Sacramento (2013) PERB Decision No. 2351-M, pp. 44 [adding electronic distribution to PERB’s standard notice posting remedy].) The Board denied union’s request to order broader notice posting and distribution, as record did not prove that employer announced a new policy or policy interpretation with respect to any employees outside the bargaining units represented by the union. (Cf. City and County of San Francisco (2017) PERB Decision No. 2536-M [Board required posting and distribution in a manner calculated to reach all employer’s employees where employer maintained an unreasonable rule affecting all of its employees, not just those represented by the charging party union].) (pp. 18-19.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1101.07000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Waiver; Estoppel
An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
The limitations period begins to run on the date the charging party knew, or should have known, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) The limitations period for a unilateral change allegation begins to run when the charging party has actual or constructive notice of the respondent’s clear intent to implement the change in policy, provided there is no conduct after that date evincing a wavering of such intent. (Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 16.) (p. 8.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
Absent a recognized exception, PERB cannot issue a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) Before a complaint issues, a charging party bears the burden to allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3, 30.) After a complaint issues, a respondent bears the burdens of pleading untimeliness as an affirmative defense in its answer, and then proving that the statute of limitations bars the charge. (Id. at p. 30.) (pp. 7-8.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
1000.02167: SCOPE OF REPRESENTATION; Exclusive Representative's Right to File Grievances
Chula Vista City School District (1990) PERB Decision No. 834 held that EERA grants an exclusive representative the right to file grievances in its own name. The Board based this holding on EERA section 3543.1, subdivision (a), which states in relevant part: “Employee organizations shall have the right to represent their members in their employment relations with public school employers.” Critically, Chula Vista noted that this statutory right is based on the fundamental principle that employees have the right to act collectively through their union. (Id. at p. 22.) The MMBA mirrors EERA in providing unions with a “right to represent”: “Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies.” (MMBA, § 3503.) In Omnitrans (2009) PERB Decision No. 2010-M, the Board found that the MMBA, like EERA, provides an exclusive representative with a statutory right to file union grievances seeking relief on a collective basis. (Id., adopting proposed decision at p. 5.) Any waiver of this union right must be clear and unmistakable. (Ibid.) (p. 15.) more or view all topics or full text.
12/20/22
2847M * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority
608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To prove waiver by inaction, it is necessary to prove “conscious abandonment” of the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 [internal quotation marks omitted].) (p. 17.) more or view all topics or full text.
12/20/22