A December To Forget For Employers

If you are a “PERB watcher” then you know that PERB issued a lot of decisions in December. 24 to be exact. PERB only issued 61 decisions in all of 2017-18, so 24 decisions in a month is undoubtedly a record. Many of the 24 decisions involve significant new legal pronouncements by PERB which I will continue to blog about in the coming weeks.

But the one thing that immediately jumped out at me about December was that it was not a good month for employers. Of the 24 decisions, 7 were reversals of proposed ALJ decisions. All 7 reversals went against the employer.

Historically, when a proposed decision by an ALJ is challenged, the affirmance rate is high. Here are the stats:

Board’s Affirmance Rate of ALJ Decisions:
2016-17: 90.9%
2015-16: 95.8%
2014-15: 76.9%
2013-14: 78.9%
2012-13: 85.7%

However, in December the affirmance rate was only 64.7%. For fiscal year 2018-19 to date, the affirmance rate is 69.7% (23 out of 33 decisions). Notably, of the 10 ALJ decisions PERB has overturned this fiscal year, all 10 have gone against employers. The one arguable exception is Los Angeles Unified School Dist. (2018) PERB Dec. No. 2588-E where there was a partial reversal in favor of the employer, but the overall finding of a violation was affirmed so I did not include this decision among the 10 reversals.

So if you’re an employer that lost a decision in December, you’re not alone….