August 2023 Board Decisions Summary

In August 2023, the Board issued six decisions. The decision descriptions and dispositions are below.

Decision No. 2857a

Employer: Barstow Community College District

Case No. LA-CE-6666-E

Issued date: August 2, 2023


Description: This case came before the Public Employment Relations Board (PERB or Board) on a request by California School Employees Association, Chapter 176 (CSEA) that the Board reconsider its decision in Barstow Community College District (2023) PERB Decision No. 2857 (non-precedential). In that decision, the Board affirmed the proposed decision of an administrative law judge (ALJ) that dismissed CSEA’s underlying unilateral change allegation. However, the Board dismissed CSEA’s charge on different grounds than the ALJ, vacating the ALJ’s analysis that the Education Code superseded bargaining on the alleged unilateral change, and instead finding the Barstow Community College District established a past practice affirmative defense to CSEA’s remaining allegations.

CSEA sought reconsideration of the Board’s ruling that the District established past practice as an affirmative defense to CSEA’s alleged unilateral change. The District opposed the request for reconsideration but separately requested that the Board designate the underlying decision as precedential.

Disposition: The Board found no prejudicial error of fact in the underlying decision or any other basis for reconsideration. The Board denied CSEA’s request for reconsideration of Barstow Community College District (2023) PERB Decision No. 2857. The Board denied the District’s request that Decision No. 2857 be re-designated as precedential.

Order No. Ad-504-M

Employer: Consolidated Irrigation District

Case Nos. SA-DP-284-M

Issued date: August 14, 2023


Description: This case came before the Board on Consolidated Irrigation District’s appeal of an administrative determination (AD) by PERB’s Office of the General Counsel (OGC). In November 2021, Operating Engineers Local 3, AFL-CIO (OE3), was certified as the exclusive representative of employees in the District’s Water Irrigation Specialist Unit (Unit). In January 2023, before OE3 had negotiated a first contract with the District, a group of employees filed a petition to decertify OE3 as the Unit’s exclusive representative. In March 2023, OE3 filed a blocking charge, alleging that the District violated the Meyers-Milias-Brown Act and the Prohibition on Public Employers Deterring or Discouraging Union Membership by: (1) facilitating the circulation and submission of the decertification petition through an Assistant Foreman, (2) instructing that Assistant Foreman and another Unit member to circulate the decertification petition, (3) promising benefits in exchange for decertifying OE3, and (4) refusing to negotiate with OE3 pending the resolution of the decertification proceedings. OE3’s blocking charge included a request that PERB stay the decertification election pending resolution of the charge, alleging that the District’s conduct, if true, would likely interfere with employee free choice and influence employees in their vote. OGC agreed and stayed the election. The District appealed the AD, and OE3 urged the Board to uphold the stay.

Disposition: The Board found that applicable law and the unfair practice allegations support the AD’s analysis, including the AD’s findings that the District’s alleged conduct is likely to impact employee free choice, and therefore upheld the stay and adopted the AD as the decision of the Board itself.

Decision No. 2868-M

Employer: El Camino Healthcare District et al.

Case No. SF-CE-1698-M

Issued date: August 15, 2023


Description: Service Employees International Union, United Health Care Workers West (SEIU) filed charges against three Respondents: (1) El Camino Healthcare District; (2) El Camino Hospital (ECH), a California nonprofit corporation whose sole member is the District; and (3) Silicon Valley Medical Development, LLC (SVMD), a single-member limited liability corporation wholly owned by ECH. The case arose when SVMD began operating five clinics it purchased from Verity, an NLRA-covered entity. SEIU had represented a bargaining unit at the former Verity clinics. SVMD acknowledged that it was a successor employer and had to bargain with SEIU, but four disputes nonetheless arose. First, the parties dispute whether SVMD is subject to the NLRA or the MMBA. Second, the parties dispute whether only SVMD must bargain over terms and conditions at the former Verity clinics, or whether all Respondents must do so. Third, the complaint alleged unlawful unilateral changes and interference. Finally, the complaint alleged that Respondents unlawfully disseminated unilateral mass communications concerning employee decisions whether to support SEIU. After an administrative law judge (ALJ) held a formal hearing, the ALJ transferred to a different state agency without having issued a proposed decision. The Board then resolved the case based on the record.

Disposition: First, the Board determined that SVMD is an MMBA-covered employer. Second, the Board concluded that Respondents have a single-employer relationship and therefore all three Respondents had a bargaining obligation. Third, the Board dismissed an allegation concerning allegedly unlawful discipline but sustained five central claims: outright failure to bargain when ECH refused to join negotiations over the former Verity clinics; unilateral changes to an employee dress code; a further unilateral change, and interference, via a new solicitation and distribution policy; failure to bargain over the effects of a work relocation; and failure to meet and confer prior to disseminating mass communications concerning employees’ right to support their union or to refrain from doing so.

Decision No. 2869

Employer: South Orange County Community College District

Case No. LA-CE-6579-E

Issued date: August 23, 2023


Description: The complaint alleged that the South Orange County Community College District terminated Maria-Ester Nunez in retaliation for protected activities. An administrative law judge (ALJ) held a formal hearing and found in the District’s favor. The ALJ concluded that Nunez did not establish a prima facie case of discrimination, and even if she had established discrimination to be a substantial or motivating cause of the adverse action against her, this would be a dual motive case and the District proved its affirmative defense, viz., that it would have taken the exact same action even absent protected activity. Nunez timely filed exceptions.

Disposition: In a non-precedential decision, the Board affirmed the ALJ’s decision to dismiss the complaint and underlying charge. The Board found that although Nunez established a prima facie retaliation case, the District established its affirmative defense that it more likely than not would have terminated Nunez even if she had not engaged in protected activities.

Decision No. 2870

Employer: Inglewood Unified School District

Case No. LA-CE-6680-E

Issued date: August 24, 2023


Description: An administrative law judge issued a proposed decision finding that the Inglewood Unified School District violated EERA when it decided not to renew Charging Party Gavin English’s employment for the following school year because of his protected activities. While the District’s exceptions were pending before the Board, Charging Party filed an unopposed request to withdraw the underlying unfair practice charge with prejudice after the parties executed a settlement agreement resolving their issues.

Disposition: The Board found the withdrawal of the underlying unfair practice charge pursuant to the parties’ agreement to be consistent with EERA’s purpose of promoting harmonious labor relations, and granted the request.

Decision No. 2871-P

Employer: Sacramento Regional Transit District

Case No. SA-PC-23-P

Issued date: August 31, 2023


Description: American Federation of State, County & Municipal Employees Local 146 (AFSCME) filed a petition to represent a bargaining unit of 13 unrepresented Superintendents at Sacramento Regional Transit District. The parties stipulated that the Superintendents’ duties are sufficient to qualify them as supervisors and/or managers. The District claimed Superintendents have no collective bargaining rights under its enabling statute, the Sacramento Regional Transit District Act (Sacramento RTD Act, PUC, § 102000 et seq). AFSCME disagreed. A hearing officer appointed by the State Mediation and Conciliation Service (SMCS) ruled in AFSCME’s favor, and the District filed exceptions. In its response and cross-exceptions, AFSCME supported the hearing officer’s decision but also asserted that the hearing officer should have found the District is estopped from making its argument since it has long recognized AFSCME as the exclusive representative of a separate supervisory unit.

Disposition: The Board affirmed the hearing officer’s conclusion that Superintendents have collective bargaining rights under the Sacramento RTD Act and there is no need to resolve AFSCME’s estoppel argument. The Board explained that federal law and practice are generally relevant to unit determinations under the PUC transit enabling acts unless the question presented is governed by an explicit provision of the applicable transit district statute, or considerations unique to public sector labor relations require a deviation from federal law. Federal law and practice are not relevant in this instance given that: (1) the Sacramento RTD Act does not share the NLRA’s explicit exclusion of supervisors, nor its legislative history underlying the managerial exclusion; and (2) precedent from the Department of Industrial Relations, PERB, and the courts of appeal, as well as decades of practice, confirm that the federal supervisory and managerial exclusions are not relevant to the PUC transit enabling acts. The Board directed SMCS to continue processing AFSCME’s petition.