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DecisionDescriptionPERC Vol.PERC IndexDate
2749E Sacramento City Unified School District
1108.1000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
The Board provided guidance for compliance proceedings to determine the proper amount of legal expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices and to restore the pre-violation status quo. The term “legal expenses,” which is synonymous with “attorney’s fee award” and “attorney’s fees and costs,” is a broad category that includes virtually any item for which a law firm customarily bills a client, including, inter alia, billable professional services (meaning attorney and law clerk services and certain “paralegal” services that may be performed by legal assistants with or without a paralegal license), as well as incidental costs such as filing fees, electronic research fees, or fees for service of process. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 888; see also Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 285-287 [paralegal and law clerk time compensable at prevailing market rate]; Trustees of Const. Indus. and Laborers Health and Welfare Trust v. Redlands Ins. Co. (9th Cir. 2006) 460 F.3d 1253, 1256-1257 [support staff work compensable if those costs not already built into attorney’s hourly fees].) This definition of legal expenses is particularly appropriate in compensatory cases given that PERB precedent allows compensation even for staff who do not work in legal services in any respect. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.3000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Contract Repudiation or Breach
The District deviated from the status quo, changed established past practice, and/or enforced existing policy in a new way because it asserted a non-existent legal right to decide for itself whether the salary schedule agreement incorporated into the CBA was a binding contract and whether related disputes were arbitrable. The District manifestly retained for itself sole discretion to determine the arbitrability of future grievances. Although the District’s conduct in refusing to arbitrate the grievance amounted to a unilateral change, its outright repudiation of the salary schedule provision constituted an alternative basis for finding liability. (Centinela Valley Union High School District (2014) PERB Decision No. 2378, p. 8; Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M, p. 17.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.3000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Contract Repudiation or Breach
A single contract breach qualifies as a deviation from the status quo, change in established past practice, and/or enforcement of existing policy in a new way, if either of two circumstances are present: (1) the contract breach changes a policy or employment term applicable to future situations; or (2) the employer acts unilaterally based upon an incorrect legal interpretation or insistence on a non-existent legal right that could be relevant to future disputes. (Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 25; Hacienda La Puente Unified School District (1997) PERB Decision No. 1186, p. 4 [finding unilateral change because there was “no evidence to suggest” that the employer would in the future refrain from taking similar actions]; see also, e.g., San Bernardino Community College District (2018) PERB Decision No. 2599, p. 8; City of Davis (2016) PERB Decision No. 2494-M, p. 32; County of Santa Clara (2015) PERB Decision No. 2431, p. 19; County of Riverside (2003) PERB Decision No. 1577-M, p. 6.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.3000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Contract Repudiation or Breach
An employer’s failure or refusal to process a grievance in accordance with collectively bargained procedures may be reviewed as a unilateral change. (See, e.g., Omnitrans (2010) PERB Decision No. 2143-M, pp. 6-8; County of Riverside (2003) PERB Decision No. 1577-M, p. 6.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
An employer’s unilateral change concurrently or derivatively violates EERA section 3543.5, subdivisions (a) and (b) because it necessarily interferes with employees and their union in the exercise of protected rights. (San Francisco Community College District (1979) PERB Decision No. 105, pp.19-20.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
Because a unilateral change is a per se violation of the statutory duty to bargain, these standards apply irrespective of whether a party evidences a good faith belief in its mistaken position. (See, e.g., City of Montebello (2016) PERB Decision No. 2491-M, p. 10.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and negotiating in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9 (Merced).) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Merced, supra, PERB Decision No. 2740-M, p. 9.) more or view all topics or full text.
11/02/20
A482M County of Santa Clara
1503.3000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
PERB Regulation 32200 allows the appeal of an interlocutory order to the Board only when the Board agent joins in the request. (p. 3, fn. 4.) Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is not an interlocutory order, and therefore PERB Regulation 32200 does not apply in such circumstances. Rather, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)The Board accepted an administrative appeal, even though it failed to specifically identify any factual, procedural, or legal errors in the appealed administrative decision as required by PERB Regulation 32360(c), where the appellant’s claim that it had already filed a valid administrative appeal gave the Board adequate notice of the primary issue on appeal. (p. 6, fn. 8.)PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.) more or view all topics or full text.
11/02/20
A482M County of Santa Clara
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.)The Board accepted an administrative appeal, even though it failed to specifically identify any factual, procedural, or legal errors in the appealed administrative decision as required by PERB Regulation 32360(c), where the appellant’s claim that it had already filed a valid administrative appeal gave the Board adequate notice of the primary issue on appeal. (p. 6, fn. 8.) more or view all topics or full text.
11/02/20
A482M County of Santa Clara
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
PERB Regulation 32200 allows the appeal of an interlocutory order to the Board only when the Board agent joins in the request. (p. 3, fn. 4.) Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is not an interlocutory order, and therefore PERB Regulation 32200 does not apply in such circumstances. Rather, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.)Although the Board has not yet fully delineated the scope of what constitutes an interlocutory order, interlocutory orders are not limited to rulings made in the course of a hearing. (p. 7, fn. 9.) more or view all topics or full text.
11/02/20
A482M County of Santa Clara
1102.1000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
To prove repugnancy, the charging party must show the arbitration award is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” Under this standard, the “possibility that this Board may have reached a different conclusion in interpreting the parties’ agreement and the evidence does not render the award unreasonable or repugnant.” (p. 9, fn. 11.) more or view all topics or full text.
11/02/20
A482M County of Santa Clara
1102.1000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
Because a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings substantially limits the charging party’s subsequent ability to pursue the allegations in the charge, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 10-11.) more or view all topics or full text.
11/02/20
A481E Gompers Preparatory Academy
1503.3000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
PERB Regulation 32752 adopted a “blocking charge rule” that “serves to insulate an election from unfair practices that may influence its outcome.” (p. 3.) A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (p. 3, fn. 3.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1303.9000: REPRESENTATION ISSUES; ELECTIONS; Stay of
In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1303.4000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (p. 3, fn. 3.)In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1300.4000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; Certification Bar
The bar on processing a representation petition in the 12-month period following certification of an exclusive representative gives the newly certified union “breathing room” to bargain an initial collective bargaining agreement. (p. 7, fn. 5.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
In resolving an appeal of an administrative decision on a request for an election stay, the Board reviews the decision for abuse of discretion. Under this standard, the Board determines whether the decision is supported by the allegations in the blocking charge. (p. 4.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
1107.6000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
In resolving an appeal of an administrative decision on a request for an election stay, the Board reviews the decision for abuse of discretion. Under this standard, the Board determines whether the decision is supported by the allegations in the blocking charge. (p. 4.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
606.5000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Dilatory or Evasive Tactics
An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
601.5000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Other
Because an employer’s refusal or failure to bargain in good faith during first contract negotiations typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship, PERB applies a higher level of scrutiny to bad faith bargaining claims in the context of first-contract negotiations. (pp. 5-6.) In the context of first-contract bargaining, employee disaffection with the union is a natural and probable consequence of the employer’s bad faith bargaining, particularly when accompanied by other unfair practices such as unilateral changes to terms and conditions of employment and refusal to provide information to the union. (p. 7.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.) more or view all topics or full text.
10/22/20
A481E Gompers Preparatory Academy
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Because an employer’s refusal or failure to bargain in good faith during first contract negotiations typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship, PERB applies a higher level of scrutiny to bad faith bargaining claims in the context of first-contract negotiations. (pp. 5-6.) In the context of first-contract bargaining, employee disaffection with the union is a natural and probable consequence of the employer’s bad faith bargaining, particularly when accompanied by other unfair practices such as unilateral changes to terms and conditions of employment and refusal to provide information to the union. (p. 7.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.) more or view all topics or full text.
10/22/20
2747M City of San Diego
1105.6000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
Union witness testimony, recounting conversation with his superior, falls within the party admission exception to hearsay, because superior was an agent of the City. (Bellflower Unified School District (2014) PERB Decision No. 2385, p. 10.) more or view all topics or full text.
10/06/20
2747M City of San Diego
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The Teamsters’ motion to amend the complaint during the hearing was appropriate under PERB Regulation 32648, which provides that the Board agent shall permit an amendment if the Board agent determines that amendment of the charge and complaint is appropriate. In determining the appropriateness of the amendment, the Board agent shall consider, among other factors, the possibility of prejudice to the respondent. The Board found that even if the addition of a new theory of liability based on conduct that occurred more than two years prior—but not discovered by Teamsters until three months before its motion to amend—would constitute prejudice, any such prejudice was dispelled because the City had four months to prepare to defend against the new interference allegations, which were fully litigated during the remaining days of hearing. (See Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [“Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case.”].) more or view all topics or full text.
10/06/20
2747M City of San Diego
1101.2000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine
Under the relation-back doctrine, a charging party may amend a charge to add alleged violations that it discovered more than six months earlier “if the amended charges are closely related to the actions in the original charge.” (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, p. 37, quoting Gonzales Union High School District (1984) PERB Decision No. 410, pp. 19-20.) Because the Union raised the interference allegations within six months of discovering management’s’ e-mails, PERB did not need to determine whether the relation back doctrine would apply to these facts. more or view all topics or full text.
10/06/20