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Tim Yeung is a Partner with the law firm of Sloan Sakai Yeung & Wong LLP in Sacramento, California. He exclusively practices labor and employment law, with a particular focus on the public sector.
About Sloan Sakai Yeung & Wong LLPSloan Sakai Yeung & Wong LLP provides legal representation for cities, counties, school districts, universities, special districts, state agencies, and non-profit organizations in all areas of labor, employment, and general government law. Visit our website at sloansakai.com or call us at: 916.258.8800.
In this case three county employees, who were union representatives, spent 30 minutes distributing union surveys to employees at their work stations during working hours. They were later told by a county manager to stop distributing the union surveys to employees in work areas during work time. The ALJ found that the county’s directive interfered with protected rights because the County allowed other similar “non-work” activities. The Board affirmed. Continue reading
If you are a “PERB watcher” then you know that PERB issued a lot of decisions in December. 24 to be exact. PERB only issued 61 decisions in all of 2017-18, so 24 decisions in a month is undoubtedly a record. Many of the 24 decisions involve significant new legal pronouncements by PERB which I will continue to blog about in the coming weeks.
But the one thing that immediately jumped out at me about December was that it was not a good month for employers. Of the 24 decisions, 7 were reversals of proposed ALJ decisions. All 7 reversals went against the employer.
Historically, when a proposed decision by an ALJ is challenged, the affirmance rate is high. Here are the stats:
Board’s Affirmance Rate of ALJ Decisions:
However, in December the affirmance rate was only 64.7%. For fiscal year 2018-19 to date, the affirmance rate is 69.7% (23 out of 33 decisions). Notably, of the 10 ALJ decisions PERB has overturned this fiscal year, all 10 have gone against employers. The one arguable exception is Los Angeles Unified School Dist. (2018) PERB Dec. No. 2588-E where there was a partial reversal in favor of the employer, but the overall finding of a violation was affirmed so I did not include this decision among the 10 reversals.
So if you’re an employer that lost a decision in December, you’re not alone….
City of Commerce (2018) PERB Decision No. 2602-M (Issued on 12/11/18)
As part of a disciplinary arbitration, the attorney for the employer in this case interviewed two employees who were subpoenaed by the union. The union’s representative objected. However, the city’s attorney proceeded with the interviews and allowed both employees to bring a union representative. According to the decision, during the interviews the city’s attorney did not inform the employees that the interviews were voluntary and that if they chose to participate, the city would not impose any consequences based on their answers or on their refusal to answer any of the questions. The city’s attorney also asked one employee if he knew why the union was calling him as a witness. Continue reading
State of California (Department of Corrections & Rehabilitation) (2018) PERB Decision No. 2598-S (Issued on 11/26/18); San Bernardino Community College District (2018) PERB Decision No. 2599-E (Issued on 12/5/18); County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M (Issued on 12/28/18)
In a trio of decisions, PERB has continued to expand the areas in which an employee is entitled to a union (Weingarten) representative. Continue reading