County of San Diego (2020) PERB Dec. No. 2721-M (Issues on 5/22/20)
At issue in this case was a County policy prohibiting Members of the Board of Supervisors from discussing with employees any matter that was also the subject to union negotiations. The union challenged the policy even though it had been in place for many years. The Office of the General Counsel dismissed the unfair practice charge as time-barred. The union appealed to the Board.
City of Santa Maria (2020) PERB Dec. No. 2736-M (Issued on 6/30/20)
In this case the Board held that a city’s decision to conduct an open recruitment (one open to outside candidates) versus an internal recruitment (one limited to city employees) was within the scope of bargaining. This was an “easy” decision for the Board. However, to understand how the Board got to this decision you will need a little history…
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.
AFSCME Local 3299 v Regents (Case No. SF-CE-1188-H); UPTE Local 9119 v Regents (SF-CE-1189-H); Teamsters Local 2010 v Regents (SF-CE-1192-H); Teamsters Local 2010 v Regents (SF-PE-5-H) PERB has scheduled a virtual combined oral argument in these cases for July 23, 2020, at 1:30 p.m. Next week PERB will be releasing a link where the public may view the oral argument via a live stream on PERB's YouTube channel. The Board rarely grants oral argument in cases. This will be the first oral argument held by the Board under Governor Newsom. The last time PERB held oral argument was in 2014…
General PERB Rule: The Calexico Emergency Exception
Given the coronavirus pandemic, I’ve gotten a lot of questions about whether there is an “emergency” exception to the duty to bargain over changes within the scope of representation. Yes, there is; it falls under the general “business necessity” defense. The Calexico emergency defense requires an employer to show an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. (Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20 (“Calexico”); see also San Francisco Community College District (1979) PERB Decision No. 105; Compton Community College Dist. (1989) PERB Dec. No. 720; Oakland Unified School Dist. (1994) PERB Dec. No. 1045; County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No. 2423-M.) Notably, in all these cases PERB held that the employer did not meet the elements of the Calexico emergency defense. So while the language of the Calexico exception might appear broad, PERB has interpreted it very narrowly.