Court and Public Employment Relations Board (PERB) decisions, commentary on California public sector labor relations

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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 Invites Comments on Proposed Regulations on Continuances, Exceptions, Recusals, Discovery, SMCS

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PERB has invited public comments on proposed regulations regarding continuances, exceptions, recusals, discovery, and SMCS. According to the Initial Statement of Reasons, “As revealed through the stakeholder meetings that were part of the Case Processing Efficiency Initiative, many of PERB’s case processing regulations are unnecessarily complicated, incomplete, obsolete, or ambiguous. These problems often cause litigants to commit errors or missteps, which delay case adjudication. Aside from the delays, these errors create additional work for PERB’s attorneys and judges. For this reason, the Board concluded it was necessary to amend the regulations to make them user-friendly, detailed, and understandable.”

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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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PERB Constituent Survey

In 2017, PERB launched a Case Processing Efficiencies Initiative to find ways to streamline its processes and procedures. The goal was to reduce PERB's backlog of cases. Since then the Board has implemented many of the key recommendations from the Initiative while others are awaiting regulatory approval. PERB is now asking constituents to take a survey to receive feedback on the improvements that have been made, as well as identify other areas that may need attention. The announcement of the survey is here. Click here for the actual survey.

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