March 2023 Board Decisions Summary

In March 2023, the Board issued two decisions. The decision descriptions and dispositions are below.

Decision No. 2855

Employer: The Accelerated Schools

Case Nos. LA-CE-6431-E, LA-CE-6473-E, LA-CE-6505-E and LA-CE-6515-E

Issued date: March 17, 2023


Description: An administrative law judge considered whether The Accelerated Schools (TAS) violated EERA when it eliminated a union steward’s Health Services Coordinator position, laid her off, and created an unrepresented Registered Nurse position to provide higher-level health care services. The ALJ concluded that these actions were not retaliation for protected activity. But the ALJ found TAS liable for not affording the steward’s union adequate notice and an opportunity to meet and negotiate before the layoff, and the ALJ ordered back pay without reinstatement. Only the union excepted, claiming primarily that the ALJ should have upheld its retaliation claim and, in the alternative, that the ALJ should have ordered reinstatement to remedy the bargaining violation.

Disposition: The Board did not sustain the exceptions. The Board clarified that an employer that fails to bargain effects must generally provide back pay from the first date that employees began to experience harm until the earliest of: (1) the date the parties reach an agreement, typically as part of complying with PERB’s effects bargaining order; (2) the date the parties reach a good faith final impasse, including exhaustion of any required or agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects negotiations in good faith. The shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. The Board overruled, in part, eight older decisions that had extended Transmarine beyond this scope.

Decision No. 2856-M

Employer: Alameda Health System

Case No. SF-CE-1793-M

Issued date: March 23, 2023


Description: This case came before the Board on SEIU’s exceptions to the proposed decision of an administrative law judge (ALJ), which dismissed the complaint in its entirety. The complaint, as amended, alleged that Alameda Health System (AHS) violated the Meyers-Milias-Brown Act (MMBA) by conduct including releasing an AHS employee from probation in retaliation for his protected activity, and interfering with MMBA protected rights by the release from probation and by several verbal and written communications in April 2020. SEIU filed timely exceptions, urging the Board to overturn the ALJ’s dismissal of each interference allegation. AHS filed a timely response to SEIU’s exceptions, asking the Board to affirm the proposed decision.

Disposition: The Board affirmed in part and reversed in part the ALJ’s legal conclusions. The Board found that, in context, an AHS Board of Trustees member’s statement during a public meeting that “political theater is not acceptable” fell outside the safe harbor for employer free speech and constituted unlawful interference under the MMBA. The Board otherwise affirmed the proposed decision’s dismissal of the interference allegations, including because the harm caused by releasing an employee from probation shortly after he engaged in protected activity was outweighed by AHS’s right to release an employee from probation for serious work performance issues, and because the ALJ properly addressed each of the remaining interference allegations under the employer speech standard.