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

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SB 1173: $50,000 Penalty for Violation of PECC

SB 1173 was introduced on February 20, 2020, by Senator Durazo. Currently, the Public Employee Communication Chapter (PECC) (Gov. Code, §3555 et. seq.) requires public employers to regularly provide a union with the “name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address …” of the union’s bargaining unit members. SB 1173 would give an employer 10 days to cure an allegation that it provided an inaccurate or incomplete list of employees to the union. If the employer does not timely cure a violation, the union…

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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

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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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Families First Coronavirus Response Act: Updates

Effective Date of FFCRA: The Families First Coronavirus Response Act (FFCRA) states that the law is effective no later than 15 days after enactment, which would be April 2, 2020. However, the Department of Labor (DOL) has apparently declared the law effective a day earlier, on April 1, 2020. (Click here.) Posting Notice of FFCRA to Employees: The FFCRA requires that employers post a notice prepared by, or approved by, the DOL. The DOL has just released a set of posters. (Click here.) I am not aware of what the process is to get a poster "approved" by the DOL.…

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