City of Calexico (2017) PERB Decision No. 2541-M (Issued on 10/20/17) and Turlock Unified School District (2017) PERB Decision No. 2543-E (Issued on 11/14/17)
In both these cases, the proposed ALJ decision found that the employer had committed an unfair practice. The legal issues involved were not novel, but what caught my attention was that in both cases the ALJ held that the employer made a key admission by admitting material allegations in the Answer. In affirming both proposed decisions, the Board held that if the Answer to the Complaint admits facts in the Complaint, such an admission constitutes a “judicial admission which conclusively removes the issue from controversy.” (Turlock, p. 8.) The Board went on to hold that the effect of admitting facts in the Answer is that it “forbids consideration of contrary evidence…” (Turlock, p. 9.)
- While this rule is not new, it does seem like the Board is being more strict on applying it than before. In both of these cases there was some ambiguity, in my opinion, as to whether the admitted facts precluded the defenses proffered by the employers.
- Nevertheless, this brings up a couple of practice pointers. When answering the allegations in a Complaint, the respondent generally must ADMIT or DENY each material allegation. However, the regulations do allow the respondent to state that it “does not have knowledge of information sufficient to form a belief as to the truth of a particular allegation…” (PERB Reg. 32644.) This statement then acts as a denial of the allegation. So if you’re responding to a Complaint and don’t have sufficient facts to ADMIT or DENY, keep this option in mind.
- Next, it’s not uncommon to learn more facts about a case after filing the Answer. I always recommend double-checking that all the necessary affirmative defenses have been set forth in the Answer at least a few months before hearing. Based on these cases, it would also be wise to double-check what facts were ADMITTED. In Turlock, the Board noted that Answers, just like Complaints, can be amended. The key issue in whether an amendment is allowed is often times whether the other party will suffer any prejudice. That’s why if you need to amend the Answer it should be done early enough so that there is no argument of prejudice by the other side.
PERB has released its annual report for fiscal year 2016-2017. (The report is available here.) Here is my annual summary of the statistics in the report:
Unfair Practice Charges
672 unfair practice charges (UPCs) were filed in fiscal year 2016-17. In fiscal year 2015-2016, there were 652 UPCs. This means fiscal year 2016-17 saw a 3.1% increase in UPCs compared to the prior year. The changes under the various statutes were generally minor: The Dills Act saw a 13.2% increase (increase to 60 from 53). EERA saw a 1.7% increase in UPCs (increase to 240 from 236). HEERA saw an 8% increase (increase to 81 from 75). The Trial Court Act saw an increase to 15 UPCs from 9 the prior year, while the Interpreter Act saw a decrease from 4 UPCs the prior year to 1. Continue reading
In 2013, the Governor signed AB 218 which “banned the box” on employment applications asking for criminal conviction information. AB 218 added Labor Code section 432.9 which prohibits state and local agencies from asking an applicant to disclose conviction history until the agency has determined the applicant meets the minimum employment qualifications for the job. Continue reading
The Legislature has expanded PERB’s jurisdiction again. On October 15, 2017, the Governor signed AB 83, the “Judicial Council Employer-Employee Relations Act.” This new act allows for the unionization of Judicial Council employees, who are distinct from trial court employees.
Cases under this new act will be designated with the letter “J”. Example: SA-CE-0001-J.
On October 7, 2017, the Governor signed SB 285 which provides that, “A public employer shall not deter or discourage public employees from becoming or remaining members of an employee organization.” Currently, Government Code section 16645.6 provides that, “A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing.” According to the author of SB 285, the loophole in Government Code section 16645.6 is that it only prohibits discouraging the unionization of unrepresented employees, and not whether individual employees should join the union once it is established. SB 285 is meant to close this “loophole.”
- In my opinion, this law is another preemptive measure by organized labor to deal with the potential loss of agency fees depending on the outcome of the Janus case.
- PERB has jurisdiction to enforce this new law.
- My initial concern with SB 285 was how broadly “deter” and “discourage” would be interpreted. For example, if an employee asks human resources how he or she can discontinue union membership, can human resources respond truthfully, even if it has the effect of deterring or discouraging union membership? Can a public employer put out truthful information about the benefits and costs of union membership? For example, can an employer inform employees how much in dues are collected from members? However, looking at the legislative history, my assumption is that NLRB and PERB precedent in this area will continue to be applied; namely, that employers will continue to have the right to non-coercive freedom of speech.