June 2024 Board Decisions Summary

In June 2024, the Board issued nine decisions. The decision descriptions and dispositions are below.

Decision No. 2902-I

Employer: Scott Pham v. Santa Clara County Superior Court

Case No. SF-CE-19-I

Issued date: June 5, 2024


Description: PERB’s Office of the General Counsel (OGC) dismissed a charge filed by Charging Party Scott Pham, alleging that Respondent Santa Clara County Superior Court violated the Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act) by retaliating against them for engaging in protected rights and interfering with their ability to exercise these rights. OGC dismissed the charge because Pham did not allege facts sufficient to state a prima facie case of a Court Interpreter Act violation.

Disposition: In a non-precedential decision, the Board affirmed OGC’s dismissal of the charge.

Decision No. 2903-M

Employer: American Federation of State, County & Municipal Employees District Council 36 v. City of Upland; Upland City Employees Association v. City of Upland

Case No. LA-CE-1644-M & LA-CE-1663-M

Issued date: June 10, 2024


Description: In this consolidated case, American Federation of State, County & Municipal Employees District Council 36 (AFSCME) alleged that the City of Upland unreasonably processed its combined decertification and recognition petition as solely a decertification petition and maintained an unreasonable local rule, thereby violating the City’s Employee Relations Ordinance (ERO), the Meyers-Milias-Brown Act (MMBA), and PERB Regulations. Upland City Employees Association (UCEA) argued (1) that AFSCME’s petition was one for decertification only, (2) that AFSCME’s petition was defective, and (3) that the City unreasonably processed AFSCME’s petition, and in so doing violated the ERO and MMBA. The Board designated the decision as non-precedential after reviewing the criteria in PERB Regulation 32320, subdivision (d).

Disposition: In a non-precedential decision, the Board determined that AFSCME’s intent to replace UCEA was clear from its very first petition, and that it had filed a combined decertification and recognition petition. Accordingly, the Board ordered that the City deem AFSCME’s revised petition timely and process it pursuant to the ERO. Because the record evidence demonstrated that the revised petition met the requirements of the ERO, the Board ordered that the City must arrange for a combined decertification and recognition election.

Order No. Ad-515-H

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

Case No. SF-CE-1221-H

Issued date: June 12, 2024


Description: Charging Party appealed the decision by Chief Administrative Law Judge (ALJ) to reassign himself as the ALJ for the underlying unfair practice charge. In the decision, the Chief ALJ analyzed Charging Party’s opposition to his reassignment under PERB’s recusal regulations and determined there was no evidence warranting recusal. In his appeal, Charging Party alleges, in part, that (1) he was not required to present evidence supporting his objection to reassignment and (2) the Chief ALJ’s decision demonstrates bias and prejudgment, requiring recusal.

Disposition: The Board granted Charging Party special permission to appeal the Chief ALJ’s decision not to recuse himself in Case No. SF-CE-1221-H. After consideration of Charging Party’s appeal, the Board denied Charging Party’s request that the Chief ALJ be recused.

Decision No. 2806a

Employer: Visalia Unified School District

Case No. SA-CE-2979-E

Issued date: June 20, 2024


Description: On grant of employer’s writ for extraordinary relief, the Court of Appeal invalidated portions of the Board’s decision and the entirety of the Board’s remedial order in Visalia Unified School District (2022) PERB Decision No. 2806, where the Board concluded that the Visalia Unified School District violated the Educational Employment Relations Act by terminating an employee in retaliation for her protected activities. The Court of Appeal issued a remittitur to PERB.

Disposition: Pursuant to the Court of Appeal’s order, the Board vacated its remedial order in Visalia Unified School District (2022) PERB Decision No. 2806, as well as the following portions of the Discussion: the first sentence of the final paragraph of section II.D.2.a and all of sections II.D.3, II.D.4, II.E, III, and IV. The Board also ordered the unfair practice charge and complaint in Case No. SA-CE-2979-E dismissed with prejudice.

Decision No. 2904

Employer: Clovis Unified School District

Case Nos. SA-CE-3040-E, SA-CE-3047-E, SA-CE-3051-E, and SA-CO-655-E

Issued date: June 20, 2024


Description: Charging Party Association of Clovis Educators (ACE) filed four unfair practice charges relating to its campaign to become the exclusive representative of certificated employees at Clovis Unified School District. The first three charges alleged that the District violated EERA and the PEDD by, among other conduct: (1) dominating and interfering with the administration of the Clovis Unified Faculty Senate, an employee organization that is a joined party in all three charges against the District; (2) providing the Senate with preferential treatment and extensive, unequal support; and (3) encouraging employees to support the Senate while deterring or discouraging them from joining ACE and from authorizing ACE to represent them. ACE filed its fourth charge against the Senate, alleging that the Senate violated EERA by, among other conduct: (1) soliciting and/or accepting unlawful support from the District; (2) causing or attempting to cause the District to violate EERA; and (3) otherwise interfering with teachers’ protected activity. An administrative law judge (ALJ) consolidated the four cases and issued a proposed decision finding in ACE’s favor as to most, but not all, allegations. The ALJ’s proposed remedial order directed the District, among other acts, to rescind unlawful communications and policies and honor its duty to refrain from dominating, interfering with the administration of, or unlawfully supporting an employee organization, or encouraging employees to join one organization over another. The proposed remedial order directed the Senate to refrain from accepting unlawful support, interfering with protected activity, and attempting to cause the District to violate EERA. ACE was the only party to file exceptions to the proposed decision. ACE’s exceptions primarily sought an additional remedy: to disestablish all relationships between the Senate and the District having to do with teachers’ terms or conditions of employment.

Disposition: The Board sustained certain exceptions and rejected others, ruling in ACE’s favor on the central issue of disestablishment. ACE proved the District dominated the Senate, and disestablishment is the standard remedy in cases involving domination. In the alternative, disestablishment is proper because other violations were egregious, recurrent, and persistent. The Board also affirmed two additional remedies to which the parties largely acceded: (1) proof of support for a petition to exclusively represent teachers shall remain valid for longer than normal given the egregious nature of the District’s violations; and (2) the District must conduct spoken notice of the Appendix to the Board’s decision under conditions which increase the likelihood that such notice will reach the greatest number of District.

Decision No. 2905-M

Employer: Consolidated Irrigation District

Case No. SA-CE-1231-M

Issued date: June 24, 2024


Description: The complaint alleged that Respondent Consolidated Irrigation District violated the Meyers-Milias-Brown Act by interfering with the protected rights of employees and Charging Party Operating Engineers Local 3, AFL-CIO (OE3), dominating or interfering with OE3’s administration, and failing and refusing to meet and confer in good faith with OE3. As to the interference allegations, the complaint specifically alleged two claims: (1) that District agents held at least one meeting with an OE3 member to discuss instructions for talking to other unit members about executing a decertification petition and promising unit members that they would receive a raise in exchange for decertifying OE3; and (2) that a District employee, whether by actual, apparent, or ratified authority, or coercion, solicited signatures from OE3 members to support a petition to decertify OE3; informed unit members that they would receive a pay raise in exchange for their signatures in support of OE3’s decertification; and submitted to PERB a petition in Case Number SA-DP-284-E, seeking to decertify OE3 as the exclusive representative of the unit. The complaint further alleged a violation of the Prohibition on Public Employers Deterring or Discouraging Union Membership. After a formal hearing, the administrative law judge sustained the bad faith bargaining claim and dismissed the remaining allegations.

Disposition: The Board affirmed the proposed decision as supplemented by additional discussion and adjusted the remedial order.

Order No. Ad-516-S

Employer: State of California (Department of Corrections and Rehabilitation)

Case No. SA-CE-2173-S

Issued date: June 24, 2024


Description: This case came before the Board on an interlocutory appeal filed by Respondent State of California (Department of Corrections and Rehabilitation) (CDCR) to an administrative law judge’s (ALJ) order denying its two motions to defer an unfair practice charge to arbitration. The ALJ denied Respondent’s motions on the ground that CDCR withdrew its agreement to be bound by an arbitration award when it filed a Petition to Vacate or Correct Arbitration Award in superior court.

Following the order, CDCR’s appeal, and California Correctional Peace Officers Association’s opposition thereto, the ALJ certified CDCR’s appeal to the Board itself pursuant to PERB Regulation 32200.

Disposition: The Board affirmed the ALJ’s conclusion that deferral to an arbitration award is not appropriate when the moving party refuses to be bound by the award. Hence, the Board denied the appeal and remanded the matter to PERB’s Division of Administrative Law for proceedings consistent with its order.

Order No, Ad-517

Employer: Los Angeles Unified School District

Case No. LA-CE-6421-E

Issued date: June 25, 2024


Description: Charging Party appealed an administrative determination issued by PERB’s Office of the General Counsel (OGC). After a hearing and compliance proceedings, OGC dismissed Charging Party’s request for legal expenses and determined that the District had complied with PERB’s compliance order. Charging Party timely appealed to the Board.

Disposition: The Board denied the appeal, finding Charging Party’s assertion that the District must pay her legal expenses and other costs unfounded for two reasons. First, the ALJ did not award legal expenses and fees as part of the proposed decision, and charging party did not file exceptions to the proposed decision. Therefore, she waived any arguments related to legal expenses. Second, even if charging party had filed an exception seeking legal expenses, she was not entitled to those expenses as part of the make whole remedy.

Decision No. 2906

Employer: Oakland Unified School District

Case No. SF-CO-864-E

Issued date: June 28, 2024


Description: The complaint alleged that Oakland Education Association (OEA) held an unlawful pre-impasse strike. OEA argued that its strike was lawful because the District violated EERA as alleged in a separate unfair practice charge (the “school closure charge”). In a prior decision, the Board resolved the school closure charge in OEA’s favor, finding that the District violated EERA when it: (1) failed to afford OEA notice and an opportunity to bargain before implementing a change in a written District policy that had required a nine-month planning period before the District could implement a school closure decision; and (2) began implementing a school closure decision without observing the nine-month planning period and without affording OEA adequate notice and opportunity to engage in good faith effects negotiations. After the Board resolved the school closure charge, the parties submitted post-hearing briefs in this case, and the ALJ issued a proposed decision dismissing the complaint against OEA. The District filed exceptions, to which OEA responded.

Disposition: The Board affirmed the proposed decision. EERA includes a qualified right to strike. One qualification restricts pre-impasse strikes pressuring an employer to make concessions in collective bargaining. As a result, there is a presumption against pre-impasse strikes, but a union may rebut the presumption by showing that employer unfair practices materially provoked the strike. The Board found two independent reasons why OEA did not engage in an unlawful pre-impasse strike. First, the presumption did not apply given that the parties were not in contract bargaining, OEA had no duty to bargain effects since the District began implementing its changes without providing notice or an opportunity to bargain, and the District pointed to no other negotiation giving rise to a duty to bargain. In the alternative, OEA rebutted the presumption because District unfair practices materially provoked the strike.