May 2023 Board Decisions Summary
In May 2023, the Board issued three decisions. The decision descriptions and dispositions are below.
Organization: Orange County Employees Association (Sanchez)
Case No. LA-CO-254-M
Issued date: May 2, 2023
Description: The amended complaint alleged that Respondent Orange County Employees Association (OCEA) breached its duty of fair representation under the MMBA by: (1) providing Charging Party Paul Sanchez with insufficient notice to consider and vote on whether to ratify a tentative agreement (TA) between OCEA and the County of Orange, and providing misleading and incomplete information about the TA; (2) denying Sanchez’s requests for the ratification vote totals; and (3) failing or refusing to respond to Sanchez’s requests for OCEA’s policy regarding non-disclosure of contract ratification vote totals. After the ALJ resolved these claims in OCEA’s favor and dismissed the amended complaint, Sanchez filed exceptions.
Disposition: In a non-precedential decision, the Board affirmed the proposed decision and dismissed the complaint and underlying unfair practice charge.
Employer: State of California (State Water Resources Control Board)
Case No. LA-CE-740-S
Issued date: May 2, 2023
Description: In an earlier decision in this case, State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, the Board had partially reversed a proposed decision and remanded to the ALJ to consider an unresolved issue: whether Respondent State of California (State Water Resources Control Board) interfered with rights protected by the Dills Act by failing to provide Professional Engineers in California Government (PECG) with sufficient information for it to meaningfully represent a Water Board employee in an investigatory interview. Following remand, the ALJ issued a second proposed decision and concluded that the Water Board interfered with protected rights in conducting the investigatory interview. The ALJ ordered the Water Board to post a notice and to cease and desist from further interference but rejected PECG’s request for litigation sanctions and rescission of discipline issued against the employee. PECG excepted to the remedy.
Disposition: The Board rejected PECG’s exceptions. The Board found no cause to order the Water Board to rescind the employee’s discipline because the Water Board did not rely on information or admissions obtained during the unlawful interview or employee’s conduct at the interview. The Board did not award litigation sanctions because the Water Board’s position was not frivolous. The Board, however, supplemented the proposed remedial order by directing the Water Board to continue refraining from any reliance on information or admissions obtained during the unlawful interview or employee conduct during the interview.
Employer: Imperial Irrigation District
Case No. LA-CE-1482-M
Issued date: May 8, 2023
Description: The parties’ dispute arose in the initial stages of the COVID-19 pandemic. On March 21, 2020, the District proclaimed a local emergency in response to the novel COVID-19 coronavirus, whereby it directed its staff to “take the necessary steps for the protection of life, health and safety” and approved the District General Manager to take “necessary actions.” On March 26, the District notified IBEW of its plan to sequester a set of critical employees onsite at its facilities to ensure continued energy and water service to its communities, and on April 8, the parties began negotiations over a Sequestration Policy. From the outset and throughout bargaining, the District claimed it had the ability to unilaterally impose terms pursuant to MMBA section 3504.5, while it also stated that it preferred to reach an agreement with IBEW prior to implementing an employee Sequestration Policy. The parties exchanged several proposals and eventually narrowed their outstanding issues to only two, compensation and staffing methodology. On April 17, the District sent IBEW a fourth counterproposal and stated that it would likely be the District’s last offer as implementation was imminent. IBEW sent the District a fifth counterproposal on the same day, but the District did not respond to it anytime thereafter. Instead, on April 20, the District implemented its Sequestration Policy, which impacted unit employees’ terms and conditions of employment including their hours of work, seniority, and overtime compensation. On April 25, the District began sequestering selected employees at its facilities in 21-day periods. During this time, employees worked daily 12-hour shifts, followed by 12-hour non-productive periods, and resided at worksites in individual recreational vehicles the District provided. The District never returned to the bargaining table after implementation.
In the course of bargaining, IBEW also sent requests for information (RFIs) to the District on April 13 and April 16. The District never responded to either request. The proposed decision concluded that the District refused and failed to meet and confer in good faith with IBEW over the Sequestration Policy, unilaterally implemented the Sequestration Policy, and failed to respond to the two RFIs, in violation of the MMBA.
The administrative law judge found that the District refused and failed to meet and confer in good faith with IBEW over the Sequestration Policy, unilaterally implemented the Sequestration Policy, and failed to respond to the two RFIs, in violation of the MMBA. The District excepted.
Disposition: The Board affirmed the ALJ’s liability findings, but departed from the proposed decision’s reasoning with respect to the bad faith bargaining violations. The Board also modified the remedial order.