Attorneys’ Fees Awarded as Make Whole Remedy for Refusal to Arbitrate

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Sacramento City Unified School District (2020) PERB Dec. No. 2749-E (Issued on 11/02/20)

The district and union in this case were parties to a collective bargaining agreement (CBA) containing a grievance procedure culminating in binding arbitration. The union sought to arbitrate a grievance (the details of which are not relevant to my discussion of this case). The district refused. The union filed a motion to compel arbitration in superior court and prevailed.

The union then filed an unfair practice charge with PERB alleging that the district’s refusal to arbitrate the grievance constituted an unlawful unilateral change; namely, a repudiation of the parties’ CBA grievance provision. The ALJ agreed and PERB affirmed. Notably, PERB affirmed the ALJ’s order that to make the union whole, the district was required to reimburse the union for its attorneys’ fees incurred in bringing the motion to compel arbitration.

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Deferral to Arbitration is Immediately Appealable

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County of Santa Clara (2020) PERB Dec. No. Ad-482-M (Issued on 11/2/20)

The statutory language of EERA, the Dills Act, and JCEERA provides for the deferral of an unfair practice charge to arbitration where certain conditions are met. For example, EERA provides that PERB may not “[i]ssue a complaint against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the matter at issue, has been exhausted, either by settlement or binding arbitration.” (Gov. Code, §3541.5(a)(2).) An unfair practice charge that is deferred to arbitration under one of these acts is dismissed. (PERB Reg. 32620(b)(5).) That dismissal is then appealable to the Board. (PERB Reg. 32635.)

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“Make Whole” May No Longer Be Enough

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Unions have long complained that PERB’s remedial orders are insufficient.  For example, the remedy for an unlawful unilateral change is to return the parties to their prior positions (i.e. status quo ante). However, the unions often argue that merely returning to the status quo ante isn’t sufficient to remedy the harm that has occurred or to serve as a deterrent in the future. Judging from several cases issued in the last year, it appears that the Board is starting to agree. Here are several cases dealing with remedies that practitioners should take note of….

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Marysville Rule: Weakened But Still Alive

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City of Culver City (2020) PERB Dec. No. 2731-M (Issued on 6/10/20)

At issue in this case was a change by Culver City’s police department regarding when employees take a lunch break. For many years, the police department allowed employees to combine their two 15-minute paid rest periods into a single half-hour paid meal period in lieu of an unpaid meal period of one hour. The city relied on contract language to make a change requiring employees to take an unpaid meal period of one hour. Thus, before the change an employee on a 4/10 work schedule worked 10 hours a day, which included a 30-minute paid lunch period. After the change, the same employee’s schedule was 11 hours, which included an unpaid meal period of one hour.

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PERB End of Fiscal Year Numbers for 2019-20

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Overview: PERB issued 101 decisions

PERB’s fiscal year ended on June 30. According to PERB’s website, PERB issued 101 decisions which was the most decisions issued since fiscal year 2004-05. More details on the year will be included in PERB’s annual report which is due on October 15, 2020. Until then, I have some addition numbers that might be of interest to practitioners

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