April 2024 Board Decisions Summary

In April 2024, the Board issued seven decisions. The decision descriptions and dispositions are below.

Order No. Ad-513-P

Employer: North County Transit District

Case No. LA-DP-470-M (SMCS 23-3-226)

Issued date: April 4, 2024


Description: On appeal from State Mediation and Conciliation Service’s (SMCS) administrative determination to proceed with a decertification election, the exclusive representative Sheet Metal, Air, Rail and Transportation Workers (SMART) requested a stay of activity pursuant to PERB Regulation 32370.

Disposition: The Board found that it had discretion to issue a stay, and because further processing of the decertification petition would be unnecessary if it reverses the administrative determination, granted the request.

Decision No. 2898-M

Employer: Sacramento-Yolo Mosquito & Vector Control District

Case No. SA-CE-1184-M

Issued date: April 10, 2024


Description: Operating Engineers Local Union No. 3 (OE3) filed an unfair practice charge alleging that Sacramento-Yolo Mosquito and Vector Control District, violated the Meyers-Milias-Brown Act (MMBA) by failing to bargain over unilateral changes within the scope of representation. PERB issued a complaint, alleging that the District violated the MMBA by unilaterally implementing: (1) new job duties for its Ecological Management Technicians (EMTs), and (2) a COVID-19 Prevention Plan/Program, without providing OE3 notice or opportunity to bargain.

After hearing and briefing, the Administrative Law Judge (ALJ) issued a proposed decision dismissing the EMT job duties claim as untimely and finding that the District violated the MMBA when it made changes to the COVID-19 Prevention Plan/Program. The ALJ found that the District did not change EMT job duties during the six-month limitations period, as the status quo for EMT job duties included operation of the unmanned drones. OE3 excepted to the ALJ’s untimeliness finding; no party excepted to the COVID-19 Prevention Plan/Program violation.

Disposition: In a non-precedential decision, the Board affirmed the ALJ’s dismissal of the EMT job duties claim. The Board found that EMTs regularly and consistently operated drones for several years prior to the limitations period. Though evidence of pre-implementation wavering intent can restart the limitations period for unilateral change violations, the Board declined to find that this exception applied to the EMT job duties claim. The parties bargained over updates to the EMT job description during the limitations period and did not reach agreement; however, the EMT job duties did not change from the status quo, which included the drone operation duties.

Decision No. 2899-S

Employer: State of California (State Teachers’ Retirement System)

Case No. SF-CE-305-S

Issued date: April 10, 2024


Description: PERB’s Office of the General Counsel (OGC) dismissed a charge filed by Charging Party David Byrd, alleging that Respondent State of California, California State Teachers’ Retirement System violated the Ralph C. Dills Act by deducting service credit for the time Byrd participated in a strike of the Oakland Education Association. OGC dismissed the charge because Byrd did not allege facts showing that he was an employee of the State of California.

Disposition: In a non-precedential decision, the Board affirmed OGC’s dismissal of the charge.

Order No. Ad-514

Employer: Dailey Elementary Charter School

Case No. SA-RR-1211-E

Issued date: April 18, 2024


Description: This representation case came before the Board on a purported appeal by non-party Darcey Severns from an administrative determination by PERB’s Office of the General Counsel (OGC) certifying Fresno Teachers Association (FTA) as the exclusive representative of all certificated teachers and other certificated classroom support professionals at Dailey Elementary Charter School. In the determination, OGC concluded that: (1) FTA submitted sufficient proof of support from a majority of employees in the proposed bargaining unit; (2) no other employee organization properly intervened to seek to represent any of the employees in the petitioned-for unit; (3) Dailey did not dispute that the proposed unit was appropriate; and (4) Dailey had not granted recognition to FTA. Thus, OGC certified FTA as the proposed unit’s exclusive representative pursuant to section 3544.1 of the Educational Employment Relations Act and PERB Regulation 33485.

After OGC issued the administrative determination, Severns, a teacher at Dailey, submitted a letter purporting to appeal the determination. Severns argued that there is no longer majority support for FTA and that she properly filed a petition for intervention.

Disposition: The Board affirmed the administrative determination and adopted it as the decision of the Board itself, as supplemented by additional discussion.

Decision No. 2900-M

Employer: County of Santa Clara

Case No. SF-CE-1859-M

Issued date: April 23, 2024


Description: The complaint alleges that the County of Santa Clara unlawfully refused to bargain with Service Employees International Union Local 521 (SEIU) before its Board of Supervisors (BOS) approved the County medical staff organization’s proposed bylaw revisions, which included new standards for SEIU-represented physician assistants to receive or maintain practice privileges at County hospitals. The administrative law judge (ALJ) found the County did not have a duty to bargain over the BOS decision to approve the bylaw revisions. However, the ALJ found the County violated its duty to bargain with SEIU, prior to the BOS vote, over the decision’s effects on terms and conditions of employment. Both parties filed exceptions.

Disposition: The Board affirmed in part and reversed in part, finding that the County violated its bargaining duties both with respect to the BOS decision and the effects thereof. The Board held that while the County had a decision bargaining duty to the extent of its discretion, the County violated that duty when it flatly refused to bargain. As to effects bargaining, the County admitted that it had a duty to bargain certain effects, and that it refused to bargain. The Board declined the County’s request to rule that certain proposals must be off limits in effects bargaining merely because the County did not have authority to make changes without action by the medical staff organization. Finally, the Board addressed SEIU’s exceptions on remedial issues. The Board rejected SEIU’s argument that the Board should amend its make-whole remedies to include, as a matter of course, attorney fees based on hours spent successfully litigating the case before PERB. However, the Board clarified that existing make-whole principles already provide bargaining and representation related damages, including increased costs and wasted or diverted resources.

Decision No. 2889a-H

Employer: Regents of the University of California (Irvine)

Case No. LA-CE-1395-H

Issued date: April 24, 2024


Description: Charging Parties, five UC Irvine (UCI) employees, asked the Board to reverse the non-precedential designation of Regents of the University of California (Irvine) (2024) PERB Decision No. 2889-H (Regents). In Regents, the Board reversed a decision of PERB’s Office of the General Counsel (OGC) dismissing Charging Parties’ unfair practice charge. The charge alleged that UCI refused to allow Charging Parties to present grievances through a representative of their own choosing and to have their employer process such grievances at all stages prior to arbitration. Treating the charge allegations as true at the initial pleading stage, the Board found they stated a prima facie case that UCI violated HEERA by failing and/or refusing to process Charging Parties’ grievances. The Board designated the decision as non-precedential after reviewing the criteria in PERB Regulation 32320, subdivision (d).

Disposition: In a non-precedential decision, the Board reaffirmed that the criteria in PERB Regulation 32320, subdivision (d) do not warrant designating Regents as precedential. The Board accordingly denied Charging Parties’ request to reverse the non-precedential designation.

Decision No. 2901

Employer: Merced City School District

Case No. SA-UM-888-E

Issued date: April 25, 2024


Description: Merced City Teachers Association, CTA/NEA (MCTA) filed a Unit Modification Petition (Petition) under the Educational Employment Relations Act (EERA) to add 21 unrepresented preschool teachers employed by the Merced City School District to an existing unit of certificated District employees, which MCTA exclusively represents. After a PERB administrative hearing, the hearing officer denied the Petition, relying primarily on Redondo Beach City School District (1980) PERB Decision No. 114 (Redondo Beach). In his analysis, the hearing officer found that: (1) the preschool teachers did not share a community of interest with the existing bargaining unit, and (2) established practices and efficiency of operations weighed against modifying the unit.

Disposition: MCTA filed exceptions seeking to reverse the hearing officer’s decision. MCTA excepted to the hearing officer’s factual findings and legal conclusions, including, inter alia, the conclusion that preschool teachers do not have a community of interest with other bargaining unit employees. The Board reviewed the hearing officer’s legal conclusions de novo, and distinguished Redondo Beach from the instant case. The Board found that the majority of factors weigh in favor of modifying the unit pursuant to MCTA’s Petition, as the preschool teachers are certificated public school employees whose primary work function is to educate students in classrooms, just like the other teachers in MCTA’s bargaining unit.

Accordingly, The Board reversed the hearing officer’s decision, holding that the District preschool teachers are classroom teachers, that they share a community of interest with certificated employees, and that they belong in the MCTA bargaining unit.