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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PERB: Vaccination Mandate a Management Right During Pandemic

Regents of the University of California (2021) PERB Dec. No. 2783-H (Issued on 7/26/21)

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[Full Disclosure: I represented the University in this case so I don’t claim to be unbiased.]

In July 2020, the University of California issued an Executive Order, effective for the 2020-2021 flu season, requiring that students, faculty, and staff who are living, learning, or working at any University location be vaccinated against influenza by November 1. The University issued the order at the recommendation of health professionals who were worried that the intersection of the 2020-2021 flu season with the ongoing COVID-19 pandemic would create an unprecedented public health emergency. Specifically, the University’s experts feared that a winter surge of COVID-19, along with the normal winter surge for influenza, would overwhelm hospitals throughout California. Based on this threat to public health, the University took the position that the Order as it applied to union-represented employees was a managerial right; and therefore the Order was not negotiable with the unions other than over its effects.

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PERB: Union Authorization Forms Are Confidential

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City of Bellflower (2021) PERB Dec. No. 2770-M (Issued on 6/08/21)

The Bellflower City Employees Association (BCEA) filed a petition to decertify and replace AFSCME Local 3745 as the exclusive representative of three bargaining units within the City of Bellflower. While the petition was being processed, AFSCME requested that the City provide it with copies of BCEA’s authorization forms. In response, the City provided AFSCME with unredacted copies of the authorization forms submitted by BCEA. The City did so without notifying BCEA or receiving its consent.

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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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PERB: Mediation Not Required Before Factfinding Under MMBA

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County of Santa Clara (2020) PERB Dec. No. A483-M (Issued on 12/17/20)

In this case a union declared impasse in its negotiations with a county and requested factfinding under MMBA section 3505.4. The county’s local rules, however, require that the parties engage in mediation when there is an impasse in negotiations. Since the union did not request mediation, the county challenged the union’s request to PERB for factfinding. The Office of the General Counsel approved the union’s factfinding request and the Board affirmed.

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