Board Issues Written Decision Denying IR Request

Trustees of the California State University (East Bay) (2013) PERB Decision No. I056-H (Issued 6/07/13)

PERB has issued a rare written decision denying an Injunctive Relief (IR) request. The IR request came from a CSU professor who alleged that he was terminated from employment for filing numerous grievances. The employee sought IR because of the professional damage, and the financial and emotional distress caused by his unemployment. This was the employee’s fifth request for IR in this case.

In a short decision, the Board examined the IR request under the Modesto standards. The Board assumed that the first prong of Modesto—reasonable cause to believe that an unfair practice has occurred—was satisfied since a complaint had issued. As for the second prong—whether IR is just and proper—the Board emphasized that IR is warranted only in circumstances where the Board’s order would be rendered meaningless absent IR. The Board affirmed its long-standing holding that financial damages caused by a termination generally do not meet this standard since those damages can be awarded later. The Board also held that since it does not have the authority to award emotional distress damages, such damages cannot constitute the necessary irreparable harm under the just and proper prong.

Comments:

To my knowledge, this is the first formal written decision in an IR case since 2001, when the Board issued County of San Joaquin (Health Care Services) (2001) PERB Decision No. I055-M. Since that time, decisions to grant or deny IR have been transmitted in a very short letter from the Office of the General Counsel advising the parties of the Board’s decision. Those transmittal letters do not set forth the Board’s reasons for granting or denying an IR request.
So why did the Board finally issue a formal written IR decision? Reading between the lines, I do not think the Board was trying to set forth a new legal principle. Instead, I think the Board was faced with its fifth IR request in this case and wanted to provide the charging party some sense of why the requests were denied, and perhaps more importantly, signal to the charging party that future requests will also be denied absent some changed circumstance.
Interestingly, this decision was issued “per curiam” which is Latin for “by the court.” Per curiam decisions do not list a Board member as the author. In the past, the Board used the per curiam designation much more often, typically in decisions responding to a motion or some other matter requiring the quick attention of the Board. Based on some quick research, I think the last decision issued per curiam was back in 1990. So it’s a practice that the Board has not used in a very long time that this current Board is apparently bringing back.
One last note, here the Board assumed that the first prong of Modesto—reasonable cause to believe an unfair practice has occurred—was satisfied because a complaint issued. There are some PERB cases holding that the “reasonable cause” standard under Modesto is a higher standard than merely stating a prima facie case. (See Fremont Unified School Dist. (1990) PERB Decision No. IR-54; San Ramon Valley Unified School Dist. (1984) PERB Decision No. IR-46.) However, given the nature of this decision and the fact that it was issued per curiam, I do not think the Board intended to deviate from the prior cases discussing reasonable cause. Instead, I think the Board was just trying to get to the second prong of Modesto quickly since that’s the heart of the decision.