| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2854E |
Antelope Valley Community College District
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
In accord with the Board’s standard unilateral change remedy, the Board found it appropriate to order the District to cease and desist from the unlawful conduct found in this decision, to meet and negotiate with the Faculty Union upon request over changes to instructors’ work calendar, and to post physical and electronic notices of its violation. (p. 7.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The Board found it appropriate to order the District to make employees whole for any losses suffered as a result of the District’s failure to meet and negotiate in good faith over changes to the academic calendar that altered distribution of instructors’ workdays, holidays, and workload. Although the Faculty Union presented no evidence that any employee suffered a loss as a result of the calendar changes, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the Faculty Union will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss of compensation or benefits as a result of the changes to the 2020 2021 calendar and its continuation in subsequent academic years. (p. 7.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
In cases where an employer fails to fulfill its bargaining obligation before altering instructors’ work calendar as part of adjusting the student academic calendar, PERB has delayed its requirement to restore the status quo when necessary to prevent unwarranted disruption or interference with student instruction or district operations. The Board found such a delay appropriate here, though the parties were afforded the opportunity to modify the rescission date by mutual agreement. The record shows that the District adopted the calendar changes on December 9, 2019, in order to implement them for the 2020-2021 academic year. The Board ordered a similar timeline for rescinding those changes. Thus, absent mutual agreement, the District must rescind the unilaterally adopted changes to the calendar at the beginning of the next successive academic year following the date the decision is no longer subject to appeal. If that date falls after December 9 of an academic year, rescission must occur at the beginning of the second successive academic year after that date. (pp. 6-7.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1000.02156: SCOPE OF REPRESENTATION; Workdays/Workyear
While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1000.02064: SCOPE OF REPRESENTATION; Hours of Work
While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1000.02016: SCOPE OF REPRESENTATION; Calendar
While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.) more or view all topics or full text. |
02/23/23 | ||
| 2854E |
Antelope Valley Community College District
1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Under EERA, an employer must bargain over a decision if: “(1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not significantly abridge [its] freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of [its] mission.” While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent applying the three-part test distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. (pp. 3-5.) more or view all topics or full text. |
02/23/23 | ||
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1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
PERB’s standard remedy for an employer’s unlawful unilateral change includes restoration of the prior status quo and appropriate make-whole relief including back pay and benefits with interest. Despite the Associations’ request that the Board restore the status quo ante by invalidating the portions of the Board of Supervisors’ resolution that placed the disputed Measure P amendments on the November 2020 ballot, and the Board’s authority to order such a remedy, the Board declined to do so here. The parties subsequently reached letters of agreement resolving all meet-and-confer issues arising out of the measure amendments the Board found could not be adopted or implemented without bargaining, and it would not effectuate the MMBA’s purposes to disturb that agreement. (pp. 29-30.) more or view all topics or full text. |
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| 2772Ma |
County of Sonoma
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
Order to cease and desist from placing measures on the ballot that affect subjects within the scope of representation without notice and meeting and conferring upon request with the Associations over the decision or its effects and to post electronic and physical notices of the violation was the appropriate remedy for the County’s unlawful unilateral change, where the parties subsequently reached letters of agreement resolving all meet-and-confer issues arising out of the Measure P amendments the Board found could not be adopted or implemented without bargaining. (pp. 29, 31.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1202.02000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; Agreement Between. the Parties
The Board declined to order restoration of the status quo ante because the parties subsequently reached letters of agreement resolving all meet-and-confer issues arising out of the Measure P amendments the Board found could not be adopted or implemented without bargaining. It would not effectuate the MMBA’s purposes to disturb that agreement. (p. 30.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Prior Notice and Opportunity to Bargain
Public agencies must comply with the MMBA’s meet-and-confer requirement before submitting to voters an initiative affecting matters within the scope of representation. An employer’s obligation to provide adequate notice and opportunity to meet and confer is identical for both “a decision involving a negotiable subject [and] a negotiable effect of a non-negotiable decision.” The County failed to provide the Associations sufficient notice or opportunity to meet and confer over the decision to place Measure P on the ballot where the Associations first learned of the decision immediately before the County Board of Supervisors voted to place the measure on the ballot. The County also provided insufficient notice or opportunity to meet and confer over effects of the decision because the Board of Supervisors’ vote constituted implementation of the decision. (pp. 28-29.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1000.02125: SCOPE OF REPRESENTATION; Salaries or Wages
Several disputed Measure P provisions significantly and adversely affected Association-represented employees’ working conditions by creating a second, independent investigatory path. While a second independent investigation may or may not ultimately lead to an officer’s discipline, employees would reasonably view it as significantly and adversely affecting wages and promotional opportunities. Hearing testimony established that an officer who is under investigation will not be appointed to a specialty assignment or promoted. In such circumstances, the officer would not receive additional pay that comes with the specialty assignment or promotion, and the loss of the specialty assignment or promotional opportunity could adversely impact the officer’s career development. In addition, Measure P adversely affects Association-represented employees’ wages regardless of whether they are the subject of the investigation or only a witness, as the measure is silent about whether any employee subpoenaed by the second investigatory body to testify in an investigation will be paid if the interview takes place outside of the employee’s duty hours. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 21, 26.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1000.02029: SCOPE OF REPRESENTATION; Disciplinary Action
New investigative procedures adversely affect employment when they create a potential for discipline that did not previously exist. Investigation and discipline lie at the core of traditional labor relations and are particularly amenable to collective bargaining—both for peace officers and other employee groups. But in cases involving law enforcement agencies, the countervailing management interest is unique given that peace officers “exercise tremendous power in the name of the public.” On the continuum of possible measures to enhance police accountability or improve police-community relations, management’s need for unencumbered decisionmaking tends to outweigh the benefit of bargaining in relation to measures focused squarely on public safety and community relations, such as revising use-of-force policies, implementing a racial profiling study, or requiring officers to wear body worn cameras. Thus, because peace officers sometimes use force—a unique aspect of their role in society—the scope of representation balancing test in law enforcement cases can turn on factors that do not matter for other employee groups. Most notably, a law enforcement agency generally has no decision bargaining obligation for an isolated change to an unwritten past practice related to peace officer investigations, where the practice was more protective than the Public Safety Officers’ Procedural Bill of Rights Act. Here, Measure P was a broad sea change consisting of many interrelated changes, creating an independent investigatory path even after County peace officers have been cleared in a Sheriff’s Office’s investigation. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 19, 24-26.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In determining whether an employer’s decision is within the scope of representation under MMBA section 3504, the Board first determines into which of three categories of managerial decisions the decision falls: (1) decisions that have only an indirect and attenuated impact on the employment relationship and thus are not mandatory subjects of bargaining, such as advertising, product design, and financing; (2) decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls, which are always mandatory subjects of bargaining; and (3) decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve a change in the scope and direction of the enterprise or, in other words, the employer’s retained freedom to manage its affairs unrelated to employment. “When a decision falls into the third category, we first determine whether the decision has ‘a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees’ that ‘arises from the implementation of a fundamental managerial or policy decision.’ If both requirements are met, we determine whether ‘the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.’”
Here, the Court of Appeal affirmed the Board’s determination that the disputed Measure P amendments fell into the third category under this framework because the County has a substantial interest in increasing transparency and fostering community trust in policing and correctional services. Thus, the Board considered whether the decision to place the disputed Measure P amendments on the ballot had “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees,” reviewing all relevant circumstances from the perspective of a reasonable employee. As to the first term, “significant” means “large or important enough to have an effect or to be noticed.” As to the second term, long-settled precedent holds that an employer action is adverse whenever a reasonable employee in the same circumstances “would consider the action to have an adverse impact on the employee’s employment.” Finally, under the reasonable employee standard, the effect of a change need only be reasonably foreseeable to be considered “significant and adverse.” Applying these standards, the Board found that the disputed Measure P provisions significantly and adversely affect Association-represented employees’ working conditions by creating a second, independent investigatory path. (pp. 14-18.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1107.18000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Review of Findings Not Excepted To
Board conclusions not challenged on judicial appeal are binding under the law of the case doctrine. (p. 13, fn. 6.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1406.01000: GENERAL LEGAL PRINCIPLES; MOOTNESS; In General
“A case in controversy becomes moot when the essential nature of the complaint is lost because of some superseding act or acts of the parties.” [Citation.] “A charge that an employer’s unilateral change to a particular term or condition of employment was unlawful does not become moot merely because the parties reach agreement on that term or condition in subsequent negotiations. [Citation.] Only when the agreement clearly settles the issue of whether the respondent’s conduct was unlawful or explicitly waives the charging party’s right to pursue the charge will PERB find a case moot under these circumstances.” [Citation.] An actual dispute remains between the parties even if their subsequent agreement narrows the available relief. (p. 11.) more or view all topics or full text. |
02/28/23 | ||
| 2772Ma |
County of Sonoma
1107.08000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Proceedings During or After Court Enforcement, Review, or Remand
On remand from the Court of Appeal’s opinion and order partially overruling County of Sonoma (2021) PERB Decision No. 2772-M, the Board reconsidered: (1) whether certain Measure P provisions had “a significant and adverse effect on the wages, hours, or working conditions” of Association-represented employees, per the test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623; and (2) the appropriate remedy. (pp. 16-23; 29-31.) more or view all topics or full text. |
02/28/23 | ||
| J029E |
St. HOPE Public Schools
1311.01000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; In General
Board denied request for judicial review of unit determination decision because the underlying determination did not involve a novel issue or statutory interpretation but rather applied a settled statutory interpretation to the particular facts presented. more or view all topics or full text. |
43 | 153 | 03/11/19 |
| A448E |
Community Learning Center Schools, Inc.
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole. more or view all topics or full text. |
42 | 16 | 06/29/17 |
| A448E |
Community Learning Center Schools, Inc.
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. more or view all topics or full text. |
42 | 16 | 06/29/17 |
| A448E |
Community Learning Center Schools, Inc.
1106.02000: CASE PROCESSING PROCEDURES; DISCOVERY; Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt
Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole. more or view all topics or full text. |
42 | 16 | 06/29/17 |
| A448E |
Community Learning Center Schools, Inc.
1106.02000: CASE PROCESSING PROCEDURES; DISCOVERY; Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt
PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. more or view all topics or full text. |
42 | 16 | 06/29/17 |
| A448E |
Community Learning Center Schools, Inc.
1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications
Rules of privilege apply in unfair practice hearings. By asserting its reliance on advice of counsel as a defense to interference and retaliation allegations, the respondent waived the attorney-client and attorney work-product privileges with respect to that advice. However, because the scope of any waiver of privilege must be narrowly construed, the Board remanded the matter to the ALJ for greater clarification of the scope of any potential waiver as to documents sought from the respondent’s attorneys by the charging party via a subpoena duces tecum. more or view all topics or full text. |
42 | 16 | 06/29/17 |
| A448E |
Community Learning Center Schools, Inc.
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. The Board remanded the matter to the ALJ to address the scope of any waiver of attorney-client or attorney work-product privileges with respect to the requested documents. more or view all topics or full text. |
42 | 16 | 06/29/17 |
