December 2022 Board Decisions Summary

In December 2022, the Board issued three decisions. The decision descriptions and dispositions are below.

Order No. Ad-498

Employer: Barstow Community College District

Case No. LA-CE-6666-E

Issued date: December 13, 2022


Description: Barstow Community College District appealed an administrative determination. PERB’s Appeals Office rejected as untimely the District’s response to exceptions by the California School Employees Association, Chapter 176 (CSEA) to the proposed decision of an Administrative Law Judge (ALJ). The District’s response was due on November 7, 2022 at 11:59 p.m., but was filed on November 8, 2022 at 12:01 a.m.

The District filed a timely appeal asserting good cause for its untimely filing. The District asserted that its counsel, while working remotely, discovered the digital pen he customarily signs documents with had a dead battery, and was delayed trying and failing to print, sign, and scan via his home printer and the looking for a replacement battery. The District argues these circumstances establish good cause for late-filing as an honest mistake arising from circumstances beyond the control of the District’s counsel. CSEA filed a timely opposition to the District’s appeal, arguing that the District failed to establish good cause for its late filing, including because PERB Regulations deem a document to have been signed when electronically filed, meaning even with a faulty pen and malfunctioning scanner, the District’s counsel could have timely filed.

The Board noted that while the brief delay was not prejudicial, it nonetheless did not find that the District established good cause for late filing. A review of the current applicable PERB Regulations would have revealed that District counsel’s customary practice of signing with his digital pen was not necessary. Under PERB Regulation 32092, subdivision (a), a digital pen is not required to execute a valid electronic signature. Under subdivision (b), PERB would have deemed the District’s response to have been signed when it was electronically filed, even without the written signature of the digital pen. Therefore, the District’s counsel could have timely submitted the District’s response through e-PERB without spending time searching for a battery for his digital pen. Furthermore, it was within the District’s counsel’s control to ensure his digital pen was working or to have an extra battery readily available when he knew he planned to use this tool to file.

Disposition:The Board affirmed the Appeals Office’s rejection of the District’s late filing.

Decision No. 2847-M

Employer: Kern County Hospital Authority

Case No. LA-CE-1451-M

Issued date: December 20, 2022


Description: An administrative law judge found Kern County Hospital Authority claimed a categorical right not to process group, class, and consolidated grievances, thereby unilaterally announcing a new policy or policy interpretation without affording SEIU Local 521 adequate notice and an opportunity to bargain. The Authority excepted to certain conclusions, and SEIU cross-excepted to the ALJ’s proposed remedy.

Disposition: The Board affirmed the proposed decision, finding that: (1) SEIU proved that the Authority implemented a new policy or applied or enforced existing policy in a new way; (2) the Authority did not prove its statute of limitations defense, as the record did not show that SEIU knew or should have known of the Authority’s change more than six months prior to the date it filed its charge; (3) The parties’ contract did not constitute a clear and unmistakable waiver; and (4) SEIU did not establish cause to broaden the ALJ’s proposed remedy.

Decision No. 2848-M

Employer: Coachella Valley Water District

Case No. LA-CE-1496-M

Issued date: December 21, 2022


Description: An administrative law judge issued a proposed decision finding that the District violated the MMBA by unilaterally implementing a scale for calculating employees’ overall performance evaluation score that impacted eligibility for merit increases. The District excepted to the proposed decision and the Union filed cross-exceptions. While exceptions were pending before the Board, the Union filed an unopposed request to withdraw the underlying unfair practice charge with prejudice after the parties resolved their dispute as part of successor contract negotiations.

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