Gov. Newsom Makes First Appointment to PERB

Lou Paulson at LA County Fire Department news conference in 2015

In one of his first acts, Governor Newsom has appointed Lou Paulson to the Board of the Public Employment Relations Board (PERB).  Mr. Paulson is the immediate past President of the California Professional Fire Fighters association, the officially chartered state council for the International Association of Fire Fighters. He has served on numerous state and national boards and committees, including the Executive Board of the California Federation of Labor and the Advisory Board for the University of California Labor Center.

Mr. Paulson joins the three other members of the Board at PERB: Eric Banks, Arthur Krantz, and Erich Shiners. A fifth board seat remains open.

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PERB: Employee Birthday Celebrations are “Non-Work” Activities

County of Orange (2018) PERB Dec. No. 2611-M (Issued on 12/19/18)

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

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A December to Forget for Employers

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:
2016-17: 90.9%
2015-16: 95.8%
2014-15: 76.9%
2013-14: 78.9%
2012-13: 85.7%

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….

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PERB Affirms Adoption of Johnnie’s Poultry

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

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Weingarten Rights: Not Just For Interviews Anymore

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

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