Appellate Court Overturns PERB

City of Escondido v PERB (2017) Court of Appeal Case No. D070462 (Issued on 3/8/17) (Unpublished)

The courts of appeal give a lot of deference to PERB. As such the majority of PERB cases that are challenged are affirmed. This is one of those rare cases where PERB gets overturned. This case involved a decision by the City of Escondido to lay off several full-time code enforcement officers, and the City’s subsequent decision to assign some of the work previously performed by the full-time employees to part-time employees who are not in the bargaining unit. In PERB’s view, both decisions happened simultaneously and without proper notice to the union so the City’s actions constituted an unlawful transfer of bargaining unit work.

The Court of Appeal applied the standard that PERB’s factual determinations must be affirmed if supported by substantial evidence, and that PERB’s legal conclusions should be given deference when those interpretations fall within PERB’s expertise. After examining the evidence, the Court of Appeal found no evidence that the City made a firm decision to assign additional duties to the part-time employees at the time it decided to lay off the full-time employees. Accordingly, the Court of Appeal held that PERB’s finding was not supported by substantial evidence.

Comments:

A request to publish this decision was denied, so this decision remains unpublished. However, I thought this case was worth mentioning because of how rare it is for PERB to be overturned.
Based on my recollection, the last time a PERB decision was overturned was in California Faculty Ass’n v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609. In that case, the Court of Appeal said that PERB’s analysis was deficient and remanded the case back to PERB. On remand, PERB affirmed its original decision with additional discussion. (Trustees of the California State University (2009) PERB Dec. No. 1876a-H.) So although PERB was overturned, its original holding was eventually affirmed.
Before the CSU case, I believe the last case where PERB was overturned was in Turlock Joint Elementary School Dist. v. Public Employment Relations Bd. (2003) 112 Cal.App.4th 522 (review denied and ordered not to be officially published). This was the “button” case where PERB held that teachers had the right to wear union buttons in the classroom. The Court of Appeal disagreed and held that wearing union buttons in the classroom constitutes political activity that is subject to restriction by a school district.
If any of my readers has a better memory than me of the last time a PERB case was overturned please let me know. But unless I’m wrong, it’s been 14 years since PERB has truly been overturned.
One last interesting note. In my opinion the recent Fresno Superior Court case has a lot of similarities with the Turlock case. Both involve the union’s right to display insignia in the workplace. The Fresno Superior Court case is now on appeal (click here for my blog post) in the same 5^th District Court of Appeal that decided Turlock. So it will be interesting to see what happens.