February 2023 Board Decisions Summary

In February 2023, the Board issued five decisions. The decision descriptions and dispositions are below.

Decision No. 2852-H

Employer: Regents of the University of California

Case No. SF-CE-1317-H

Issued date: February 9, 2023


Description: In November 2020, the University of California, Santa Cruz sent a letter to union leaders and representatives announcing that, beginning with winter quarter 2021, it would prohibit employees from concurrently holding academic instructor appointments that are exempt from the federal Fair Labor Standards Act (FLSA) and non-instructional staff appointments that are not exempt from the FLSA. University Council-American Federation of Teachers (UC-AFT) filed an unfair practice charge alleging that the University violated the Higher Education Employer-Employee Relations Act by unilaterally changing its concurrent appointment policy and modifying the Non-Senate Faculty bargaining unit without complying with the parties’ collective bargaining agreement or PERB’s unit modification regulations. After an ALJ held an evidentiary hearing, the Board transferred the record to the Board itself.

Disposition: The Board found in UC-AFT’s favor as to both claims and ordered appropriate relief.

Decision No. 2853

Employer: Hayward Unified School District

Case No. SF-CE-3453-E

Issued date: February 22, 2023


Description: Rocha appealed the dismissal of his unfair practice charge by PERB’s Office of the General Counsel (OGC). Rocha’s charge, as amended, alleged that his former employer, Hayward Unified School District, violated EERA by retaliating against him, creating a hostile workplace, underpaying him, refusing to allow him to work overtime, causing him to lose money, and terminating his employment. It further requested that OGC excuse his untimely allegations on equitable grounds. OGC dismissed the charge for multiple reasons, including its untimeliness and failure to state a prima facie case of any EERA violation.

Disposition: The Board found no reason to disturb OGC’s conclusions and affirmed dismissal of the charge.

Decision No. 2854E

Employer: Antelope Valley Community College District

Case No. LA-CE-6549-E

Issued Date: February 23, 2023


Description: The Antelope Valley Community College District adopted a calendar for the 2020-2021 academic year that eliminated the prior Winter session and expanded the Summer session by four weeks, thereby changing the distribution of instructors’ workdays, holidays, and workload, without negotiating the changes with the instructors’ exclusive representative, Antelope Valley College Federation of Teachers. The Administrative Law Judge found the District made an unlawful unilateral change and bypassed the Federation in violation of the Educational Employment Relations Act, but dismissed other bad faith bargaining allegations. The District filed exceptions challenging only the unilateral change ruling.

Disposition: The Board adopted the ALJ’s proposed decision as supplemented by a clarifying Board decision and ordered appropriate relief.

Order No. Ad-501-H

Employer: Regents of the University of California (San Francisco)

Case No. SF-CE-1221-H

Issued date: February 27, 2023


Description: Stephen Malloy appealed the Board’s decision Regents of the University of California (San Francisco) (2022) PERB Order No. Ad-499-H (non‑precedential). In that decision, the Board found that Malloy is a qualified individual with a disability, but affirmed the denial of his requests for PERB to appoint counsel to represent Malloy and to insulate Malloy from providing testimony. In that decision the Board also affirmed a prior denial of Malloy’s request for a stay of activity at all levels of PERB.

Disposition: Malloy’s “Exceptions” were procedurally premature because a proposed decision has not yet issued based on a developed factual record. For the same reason, the Board explained that even if the filing was a request for reconsideration, such a request would also be procedurally improper. However, because Malloy is currently seeking immediate review of Regents of the University of California (San Francisco), supra, PERB Order No. Ad-499-H (non‑precedential) in the California Court of Appeal, the Board placed this case in abeyance pending resolution of the appellate litigation.

Decision No. 2772a-M

Employer: County of Sonoma

Case No. SF-CE-1816-M & SF-CE-1817-M

Issued date: February 28, 2023


Description: In County of Sonoma v. Public Employment Relations Board (2022) 80 Cal.App.5th 167, the Court of Appeal remanded this matter to the Board to reconsider: (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.

Disposition: The Board concluded that the County failed to give the Associations notice and an opportunity to meet and confer over certain Measure P amendments before placing the measure on the November 2020 ballot. As a remedy, the Board ordered the County to cease and desist from such conduct in the future and to post a notice of its violations. 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.