PERB Docket at Lowest Level in Recent Memory

As of June 5, 2020, PERB's Docket (the number of cases awaiting decision by the Board itself) stood at 22. Significantly, for the first time in recent memory the Board's docket has no cases that have been at the Board level awaiting decision for longer than a year. As the Board notes, this is a tremendous improvement from only two years ago when the docket stood at 83 cases with 37 cases over a year old. The Board attributes the decrease in the docket to increased productivity by the Board members in addition to structural changes such as the addition…

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Governor Extends Factfinding Deadlines

On May 7, 2020, Governor Newsom issued Executive Order N-63-20 which extended the timelines of various statutes and regulations. With respect to PERB, the order "extended for a period of 60 days" the deadlines to request factfinding under the MMBA (Gov Code 3505.4(a)), EERA (Gov Code 3548.1) and HEERA (Gov Code 3591). The order also suspended any statute or regulation that requires administrative hearings to be held in person as long as: 1) each participant can hear the proceeding and view any exhibits; 2) members of the public can observe the hearing electronically; and 3) the requirements of the ADA…

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The Emergency Exception to Bargaining


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.

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PERB Stakeholder Meeting on February 6, 2020

Just a reminder that PERB is hosting a stakeholder meeting this Thursday, February 6, 2020. The purpose of the meeting is to discuss the Case Processing Efficiency Initiative Recommendations related to the expedited case process and related to pro per information and training. The meeting will be held at the PERB headquarters at 1031 18th Street, First Floor, Room 103, Sacramento CA. The meeting will begin at the conclusion of the regular Board meeting which is estimated to be around 10:30 a.m. 

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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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