NLRB Overrules Banner Health

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On December 16, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Banner Health System, 362 NLRB 1108 (2015), which held that a “blanket” instruction to employees to maintain confidentiality during a workplace investigation violated Section 7 of the National Labor Relations Act.  In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. According to a press release, the NLRB found that Banner Health “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.”  The NLRB held that the new standard set forth in Apogee “better aligned with other federal guidance, including EEOC enforcement guidance.”

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PERB Awards Attorneys’ Fees Against School District

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Bellflower Unified School District (2019) PERB Decision No. A475-Ea (Issued on November 12, 2019)

In this case the Bellflower Unified School District sought reconsideration of an administrative decision. The Board wasted no time in holding that, “even the most cursory review of Board precedent would have revealed that our Regulations do not permit reconsideration of decisions resolving administrative appeals.” Indeed, I wrote a blog post in 2018 discussing the Board’s decision in Lake Elsinore USD (2018) PERB Dec. No. A446-Ea, in which the Board emphasized that reconsideration is not available for decisions involving an administrative appeal.

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Taking the Battle to the Courts of Appeal

It's no secret that employers are finding themselves on the losing end of more and more cases at PERB. So it shouldn't be a surprise that there are a record number of PERB cases being challenged in the Courts of Appeal. As of today, there are 17 cases in the Courts of Appeal. I have to believe that this is far and away the most cases PERB has ever had challenged at one time. Historically, a party trying to overturn a PERB decision faces long odds as the Courts of Appeal give PERB a lot of deference as an expert…

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PERB: We Have Jurisdiction Over Cops

County of Orange (2019) PERB Decision No. 2657-M (Issued on 7/15/19) The saga continues. In this most recent case PERB provides its most comprehensive explanation yet for why it believes it has jurisdiction over “employee organizations” comprised of Penal Code 830.1 peace officers under the Meyers-Milias-Brown Act (MMBA). There is a very long history to this issue. (Click here for one of my prior post). The dispute essentially involves the interpretation of MMBA section 3511 which states: “The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999–2000 Regular Session of the Legislature…

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PERB: Employee Birthday Celebrations are “Non-Work” Activities

Shutterstock 379011010County of Orange (2018) PERB Dec. No. 2611-M (Issued on 12/19/18)

In this case three county employees, who were union representatives, spent 30 minutes distributing union surveys to employees at their work stations during working hours. They were later told by a county manager to stop distributing the union surveys to employees in work areas during work time. The ALJ found that the county’s directive interfered with protected rights because the County allowed other similar “non-work” activities. The Board affirmed.

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