PERB Cases Pending in the Courts of Appeal

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In November 2019, I created a list of all the PERB decisions being challenged in the courts of appeal. Back then there were 17 cases on appeal. Today there are 13 cases on appeal. In my opinion, the fewer cases on appeal is a function of PERB issuing fewer decisions and not that they are being challenged less. Consider that in January 2020, there were 40 cases on the Board’s docket. As of August 20, 2021, there are only 16. My speculation is that the percentage of Board decisions being challenged remains as high as ever.

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Court of Appeal Modifies Remedy in Retaliation Case

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City of South Pasadena v PERB (2020) PERB Case No. 2692-M; Court of Appeal Case No. B304596

This case involves a firefighter who aggravated an existing back injury in December 2015 while observing a demonstration from another firefighter. The firefighter said that his back began to spasm and that he could not even stand up the day after observing the demonstration. His doctor took him off of work for six weeks. On January 30, 2016, the firefighter participated in the California Spartan Race – an approximately eight-mile run over varied terrain with obstacles. The city subsequently launched an investigation of the firefighter which concluded that he had engaged in dishonesty and abuse of sick leave. The firefighter was terminated.

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Status of PERB Cases in the Courts of Appeal

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Back in November 2019, I did a post listing all the PERB cases being challenged in the courts of appeal. Back then, there were (what I believed to be) a record 17 cases pending in the courts. Most of those cases have now been resolved. With the exception of City and County of San Francisco v PERB (2019) 2019 WL 3296947), all the challenges were rejected by the courts.

However, despite how difficult it is to overturn a PERB decision, the current PERB Board continues to draw challenges. There are now at least 18 cases pending in the courts of appeal. Below, I have provided an update on the cases I listed in my November 2019 post, and below that I have provided a list of the currently pending cases.

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Supreme Court: “California Rule” Stands, But Weakened

Today, the California Supreme Court issued its decision in Alameda County Deputy Sheriff's Association v Alameda County Employees' Retirement Association et. al. The key issue in this case was whether some of the changes mandated by the Public Employees’ Pension Reform Act of2013 (PEPRA) unlawfully infringed upon vested pension rights. Unfortunately for the plaintiffs, the media characterized this case as one of "pension spiking." Given that tagline, it's not surprising that the Court found that the Legislature's efforts to combat pension spiking were lawful and rejected the plaintiffs' arguments. However, what everyone wanted to know was whether the Court would…

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NLRB Overrules Purple Communications; No Change Expected by PERB

On December 17, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014). In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the NLRB, according to its press release, "reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis." Before, under Purple Communications, employees with access to their employer’s email system for work-related purposes had a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor…

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