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

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PERB: Reconsideration Not Available for Appeals from Dismissals

Berkeley Federation of Teachers, Local 1078 (2015) PERB Decision No. 2405-Ea (Issued on 4/29/15)

There are two basic ways an unfair practice charge gets before the Board.  First, an unfair practice charge can be dismissed by the Board agent at the initial review stage and then “appealed” to the Board.  Second, an unfair practice charge can result in a complaint which then results in a proposed decision by an administrative law judge.  “Exceptions” can then be taken from the proposed decision to the Board.  So there are basically two types of unfair practice cases before the Board: appeals and exceptions. As the Board notes in this decision, “Exceptions to proposed decisions and review of dismissals arise from two procedurally distinct regulatory tracks.”

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Board: Employees Have Statutory “Right to Strike”

Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M (Issued on 03/30/15)

This case involves bargaining that occurred during the recession in 2009 and 2010. Like many employers during that time period, the employer in this case proposed concessions.  The union refused to agree to them.  The employer then declared impasse and imposed its last, best, and final offer (LBFO). The union then filed an unfair practice charge alleging that: 1) the employer engaged in bad faith bargaining leading up to impasse; and 2) the employer unlawful imposed a no-strike provision as part of its LBFO. After a hearing, the administrative law judge (ALJ) issued a proposed decision dismissing the charge in its entirety. The union then filed exceptions with the Board.

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“Right to Work” Battle May Be Coming to California

  • News

There was an interesting article in the Sacramento Bee last week about Wisconsin becoming the 25th state to enact “right to work” legislation prohibiting mandatory “agency” or “fair share” fees for employees who choose not to join a union. The reality is that such legislation has no chance of being enacted in California any time soon. However, that doesn’t mean the “right to work” battle is a non-issue in California; to the contrary, I think it will be a significant issue in the coming years because of challenges spawned by the Harris v. Quinn decision.

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PERB: LBFO cannot interfere with a “vested” right

County of Tulare (2015) PERB Decision No. 2414-M (Issued on 02/26/15)

The County of Tulare (County) and the Service Employees International Union (SEIU) were parties to a memorandum of understanding (MOU) that expired on August 1, 2011.  The MOU contained a provision “freezing” merit increases during the term of the MOU. However, the MOU provided that “commencing the first full pay period following expiration of the agreement” any frozen merit increases would be restored. In 2011, the parties began bargaining for a successor agreement. Due to the economic environment, the County proposed a continuation of the merit increase “freeze.” SEIU refused. The parties eventually reached impasse and the County imposed its proposal to continue freezing merit increases. SEIU then filed an unfair practice charge with PERB.

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Board Expands Scope of Protected Activity Under EERA

Berkeley Unified School District (2015) PERB Decision No. 2411-E (Issued on 02/19/15)

[Note: There was a typo in my original post.  I forgot the word “not” in the second sentence below]

This case involves a teacher who alleges that he was retaliated against by his school district for engaging in protected activity.  The issue before the Board was what constitutes protected activity under EERA. Specifically, the Office of the General Counsel (OGC) had determined that the employee’s filing of a curriculum complaint was not protected activity because it was not done to enforce a collective bargaining agreement and did not involve concerted activity.

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