October 2022 Board Decisions Summary

In October 2022, the Board issued ten decisions. The decision descriptions and dispositions are below.

Order No. Ad-495-H

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

Case No. SF-CE-1221-H

Issued date: October 4, 2022


Description: Charging Party Stephen Malloy filed an interlocutory appeal of an Administrative Law Judge’s (ALJ) denial of his requests for disability accommodation. Malloy’s accommodation requests seek PERB’s appointment of counsel to represent Malloy at hearing and issuance of a protective order insulating Malloy from providing testimony. The ALJ certified Malloy’s interlocutory appeal to the Board itself on August 26, 2022, pursuant to PERB Regulation 32200. The formal hearing for the case is scheduled to begin on October 10, 2022. Because the interlocutory appeal raises issues that could fundamentally impact the parties’ ability to present their cases at hearing, the Board immediately stayed all activity in the Division of Administrative Law.

Disposition: In a non-precedential order, the Board stayed all proceedings in the Division of Administrative Law pending the Board’s resolution of the interlocutory appeal.

Order No. Ad-496-M

Employer: County of Orange (Orange County Sheriff’s Department)

Case No. LA-CE-1603-M

Issued date: October 6, 2022


Description: The complaint alleged that the County of Orange discharged Charging Party Jaime Avila because he engaged in conduct protected by the MMBA. The ALJ deferred the dispute to binding arbitration under an MOU between the County and the union that represents Avila’s bargaining unit. Avila asked PERB to reverse the ALJ’s deferral order and find that the arbitration process, including the arbitration decision that ultimately issued, was repugnant to the MMBA.

Disposition: The Board affirmed the ALJ’s deferral order, finding that the parties submitted the MMBA retaliation question as one of the issues for the arbitrator to resolve and that he did so, applying the statutory standard. The Board exercised its discretion to resolve Avila’s post-arbitration repugnancy claim rather than remanding it to the ALJ and found that the arbitration process and decision were not repugnant to the MMBA. Accordingly, the Board dismissed the complaint and underlying unfair practice charge.

Decision No. 2834

Employer: Butte-Glenn Community College District

Case No. SA-CE-2996-E

Issued date: October 7, 2022


Description: An administrative law judge (ALJ) sustained one of three claims Charging Party UPTE brought against Butte-Glenn Community College District, finding that the District responded inadequately to a request for information (RFI). Specifically, the ALJ found the District assessed and answered the RFI as if it arose under the California Public Records Act (CPRA) and consequently failed to explore means of obtaining requested information that was not in its central course database. The ALJ ordered the District to provide, upon UPTE’s request, all outstanding responsive information. The District filed exceptions on the RFI claim. The ALJ ruled against UPTE on two other claims, but neither party excepted to those findings.

Disposition: The Board rejected the District’s exceptions. First, the Board found that UPTE did not have to reassert or clarify its RFI after receiving the District’s response, because a union need not do so if it is sufficiently clear that the response did not fully satisfy the request, as it was in this case. Second, the Board held that when requested information exists in some form, the fact that the employer cannot retrieve it from a centralized database—and instead may have to compile it from various sources (including employees’ memories)—does not excuse the employer from producing it, unless the employer can prove doing so would be unduly burdensome and has offered to bargain to alleviate the burden. Here, the District did not notify UPTE that its request was unduly burdensome, thereby waiving any such argument.

Decision No. 2835-H

Employer: Regents of the University of California

Case No. SF-CE-1314-H

Issued date: October 7, 2022


Description: After a hearing officer granted Teamsters’ unit modification petition to accrete the Administrative Officer II (AO2) classification into its Clerical and Allied Services Bargaining Unit, the University sent a communication to AO2s that included a set of four Frequently Asked Questions (FAQs) and answers. One of the FAQs addressed union membership and one addressed union dues. The complaint alleged that the University violated the Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD), the Higher Education Employer-Employee Relations Act (HEERA), and PERB Regulations by distributing a communication to employees in the AO2 classification concerning their choice whether to join or support Teamsters Local 2010, without first meeting and conferring with Teamsters. After an ALJ held a formal hearing, the Board transferred the record to the Board itself for decision pursuant to PERB Regulation 32320, subdivision (a)(1).

Disposition: The Board found that the University violated PEDD section 3553 by sending the FAQs to AO2s without first providing Teamsters an opportunity to meet and confer over the communication. The Board also found that the University violated PEDD section 3550 by distributing the FAQs because they tended to influence employee free choice about whether to join or support Teamsters, and the University failed to prove a business necessity for their distribution. Finally, the Board denied Teamsters’ request for attorney fees and costs given that, at the time of the parties’ post-hearing briefs the Board had not yet interpreted section 3553, and the University’s section 3550 affirmative defense was not clearly foreclosed by existing PERB precedent.

Decision No. 2836

Organization: United Teachers Los Angeles (Lukens)

Case No. LA-CO-1816-E

Issued date: October 11, 2022


Description: Charging Party Monique Lukens alleges that United Teachers Los Angeles breached its duty of fair representation under the Educational Employment Relations Act by conduct including: “burying” Lukens’ motions to UTLA membership; not enforcing her “no collection of DNA” motion; engaging in racial discrimination against Caucasians; supporting the District’s measures to defund school police; bargaining with the District over vaccine mandates, mask requirements, and other safety measures related to COVID-19; monitoring and/or silencing Lukens in the online member chat; failing to assist unit members assigned to online teaching with reasonable accommodations; and causing Lukens emotional distress and health complications. PERB’s Office of the General Counsel dismissed the allegations because they failed to state a prima facie case of a breach of the duty of fair representation or any other unfair practice. Lukens timely appealed the dismissal of the charge.

Disposition: In a non-precedential decision the Board affirmed the dismissal.

Order No. Ad-497-M

Employer: City and County of San Francisco

Case No. SF-SV-132-M

Issued date: October 17, 2022


Description: This matter came before the Board on the San Francisco Deputy Sheriffs’ Association’s appeal of an administrative determination by PERB’s Office of the General Counsel (OGC). The Association filed a severance petition (Petition) seeking to sever five classifications from existing bargaining units in the City and County of San Francisco (City) currently exclusively represented by Service Employees International Union Local 1021 (SEIU). OGC issued an administrative determination finding that PERB has jurisdiction over the Petition because the City’s local rules do not include a provision that can accomplish severance without an undue burden on the Association, and as a result PERB Regulations apply to “fill the gap.” However, OGC found the Petition was untimely under PERB Regulations and dismissed the Petition. The Association appealed, arguing that the City’s local rules required the City to apply PERB Regulations and process an earlier severance request the Association filed directly with the City, and that PERB erred by not correcting the City’s failure to do. SEIU filed a timely response, urging that OGC should have dismissed the Petition for lack of jurisdiction as the City’s local rules provide a process to remove classifications from a bargaining unit and become formally recognized as an exclusive representative, and further that whether an “undue burden” exists is a factual question that should be adjudicated through a formal hearing.

Disposition: The Board affirmed OGC’s findings that PERB has jurisdiction over the Petition because the City’s local rules do not include a provision that can accomplish severance without an undue burden, and that applying that PERB Regulations the Petition was untimely. The Board therefore dismissed the Petition.

Decision No. 2837

Organization: Santa Ana Educators Association (Felicijan & Hetman)

Case No. LA-CO-1226-E

Issued date: October 17, 2022


Description: Christine L. Felicijan and Wayne Hetman (Charging Parties) alleged that the Santa Ana Educators Association violated the Educational Employment Relations Act (EERA) when it: (1) did not appear at two grievance meetings despite agreeing to represent Charging Parties in the grievance proceedings; (2) without explanation to Charging Parties, did not approve or deny their arbitration request within the 15-day time limit for demanding arbitration under the contractual grievance procedure; (3) failed to ensure that Charging Parties’ employer, Santa Ana Unified School District, removed derogatory materials from Charging Parties’ personnel files despite informing Charging Parties that it had negotiated for the materials to be removed, and (4) failed to assist Hetman in challenging the District’s use of certain personnel information against Hetman in his lawsuit against the District. The administrative law judge (ALJ) concluded that the Association breached its duty of fair representation by failing to respond to Felicijan’s request to arbitrate three grievances. The ALJ found two of these grievances lacked merit or were untimely, and thus declined to order make-whole relief as to those grievances. The ALJ found Felicijan would have prevailed on the third grievance and, as a remedy, ordered the Association to pay Felicijan 4.5 hours of pay plus interest. The ALJ dismissed the remaining allegations. Charging Parties excepted to (1) the proposed decision’s finding that their request to arbitrate a fourth grievance was untimely; and (2) the ALJ’s failure to grant make-whole relief for all of Charging Parties’ grievances. Charging Parties also claimed the ALJ was biased against Hetman and asked that his dismissed allegations be re-tried before a different ALJ.

Disposition: The Board reversed the ALJ’s conclusion that Charging Parties’ request for arbitration of the fourth grievance was untimely, but found no remedy was warranted for the Association’s failure to respond to that request because the grievance lacked merit. The Board otherwise affirmed the proposed decision. The Board also denied Hetman’s request for a new hearing, finding Charging Parties failed to establish the ALJ was biased against Hetman.

Decision No. 2838

Employer: Santa Ana Unified School District

Case No. LA-CE-4939-E

Issued date: October 17, 2022


Description: Charging Party Christine L. Felicijan alleged that Santa Ana Unified School District refused to consult with her to develop an accommodation plan, as required by the District’s Administrative Regulation 4032 (AR 4032), in retaliation for Felicijan’s EERA-protected activities. Following a hearing on the merits, the ALJ dismissed the complaint on the grounds that PERB lacks jurisdiction over the reasonable accommodation process as set forth in the Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). Felicijan filed exceptions to the proposed decision.

Disposition: In a non-precedential decision the Board found that PERB has jurisdiction over the narrow question of whether the District refused to consult with Felicijan as required by AR 4032 in retaliation for her EERA-protected activities. However, the Board affirmed the dismissal of the complaint because Felicijan had failed to prove by a preponderance of the evidence that the District had refused to consult with her as required by AR 4032 and because the record lacked evidence demonstrating retaliatory animus.

Decision No. 2833a

Employer: Pittsburg Unified School District

Case No. SF-CE-3366-E

Issued date: October 26, 2022


Description: Charging Party Pittsburg Education Association, CTA/NEA requested reconsideration of Pittsburg Unified School District (2022) PERB Decision No. 2833, asserting that the decision contained two prejudicial errors of fact.

Disposition:  In a non-precedential decision, the Board considered the factual assertions at issue and found the Association did not show the underlying decision contains factual errors. The Board therefore denied the reconsideration request.

Decision No. 2839-M

Employer: Ventura County Probation Agency

Case No. LA-CE-1443-M

Issued date: October 27, 2022


Description:  Ventura County Professional Peace Officers Association filed exceptions to a proposed decision of an administrative law judge (ALJ). The proposed decision dismissed the Association’s unfair practice charge, which alleged that Ventura County Probation Agency violated the Meyers-Milias-Brown Act (MMBA) and the County’s local rules by issuing a March 23, 2020 Essential Services‑Probation Agency memorandum without affording the Association notice and an opportunity to bargain over the decision or its effects, and thereafter refusing to negotiate upon demand of the Association.

The March 23 Memorandum discussed the Agency’s initial planned response to state and local health orders arising from the global COVID-19 pandemic, including designating essential and non-essential services, and by extension, positions. The Memorandum further directed that employees whose positions were declared non‑essential, but not on a telework schedule nor redeployed to another County agency, could remain at home and use personal leave time.

The proposed decision dismissed the complaint and underlying unfair practice charge, finding no violation of the MMBA or the County’s local rules because the decision underlying the March 23 Memorandum was not within the scope of bargaining, and because the bargainable effects of the Memorandum were covered by an existing County policy. The Association filed timely exceptions, and the Agency filed a timely response, urging the Board to affirm the dismissal of the complaint and adopt the proposed decision.

Disposition:  The Board affirmed the proposed decision, and dismissed the complaint and underlying unfair practice charge.