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
City of Yuba City (2018) PERB Decision No. 2603-M (Issued on 12/12/18)
Under the MMBA, an employer must hold a “public hearing” regarding the impasse between the parties before it may implement its last, best, and final offer (LBFO). (Gov. Code § 3505.7) In this case the union argued that the employer failed to comply with this requirement because the city council agenda item was listed as “Local 1 Imposition” rather than as a public hearing regarding the impasse between the parties. The Board rejected the union’s arguments. Continue reading
Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279 (2018) PERB Decision No. 2614-E (Issued on 12/21/18)
This case involved an appeal of two unfair practices charges that were dismissed in 1987. That’s not a typo. Not surprisingly, the Board noted that the appeal was untimely “by more than a quarter century” and affirmed the dismissal. Continue reading