No Dismissal of Allegation Unless in Warning Letter

Lake Elsinore Unified School District (2018) PERB Decision No. 2548 (Issued on 2/2/18)

This case involved an unfair practice charge that alleged various forms of retaliation. After being amended three times, and a warning letter being issued, the Board agent dismissed the charge. On appeal, the Board reversed the dismissal for further consideration by the Office of the General Counsel. Specifically, the Board held that the warning letter and dismissal did not consider an alternative theory of retaliation advanced by the charging party.

Board held that,

[O]ur Regulations generally prohibit dismissal of any allegation in a charge without notice to the charging party of any deficiencies. [Citations omitted] Although the District’s position statement argued that the charge was untimely and that, even if timely, there could be no logical nexus between Edwards’ protected activity in 2015 and an adverse action occurring in 2007-2008, these points were not mentioned or addressed in the warning letter. Consequently, even if we agreed with the District on these points, because they were not included in a warning letter, they cannot be used to justify dismissal of the charge in the current posture of this case. We therefore vacate the dismissal and remand the matter to the Office of the General Counsel for further proceedings.

Comments:

  1. I think the Board’s view of its regulations on issuing warning letters is too strict. The reality is that many times an unfair practice charge is written as a “narrative” and the Board agent and respondent are forced to guess at the specific allegations. This is especially true with pro per litigants. Here, the Board agent considered several allegations of retaliation, which was clearly the crux of the charge. The fact that the Board agent did not discuss every possible theory of retaliation in the warning letter, in my opinion, should not require reversal, even under PERB Regulation 32620(d).
  2. As part of PERB’s efficiency project, many representatives of both management and labor complained about the current practice of issuing warning letters which takes a tremendous amount of time to write. Many representatives favor a simple phone conversation with the Board agent or some other alternative. This decision appears to confirm that any change to the current system will require changing PERB’s regulations. In my opinion that change should happen sooner than later.
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Board: Written Letter Constituted Declaration of Impasse

City of Salinas (2017) PERB Order No. Ad-457-M (Issued on 1/4/18)

One of the triggers for requesting factfinding under the MMBA is a “written notice of a declaration of impasse.” (Gov. Code §3505.4.) The issue in this case was whether a letter from a City stating that it had met its obligations to meet and confer with the union—but never uses the term “impasse”—nevertheless constitutes a written declaration of impasse under the MMBA. The Office of the General Counsel held that such a letter did not constitute a declaration of impasse.  The Board reversed.

The Board held that the meaning of the City’s letter was clear: that the City believed it had fulfilled its obligation to meet and confer because the parties were at a point where continued negotiations would be futile. The Board also noted that the City did not respond to the union’s request for clarification on whether it had declared impasse. The Board conceded that the City’s letter would “undoubtedly be clearer” if it used the term “impasse.” But the Board held that PERB looks at the substance of a party’s words, not their form, to determine their legal effect. Here, under these facts, the Board held that the City’s letter constituted a written declaration of impasse even though it did not use that term.

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Rare Case of PERB Taking Jurisdiction Over a Transit Agency

San Diego Metropolitan Transit System (2018) PERB Order No. Ad-460-M (Issued on 1/23/18)

This case was interesting because most independent transit districts, such as the San Diego Metropolitan Transit System (System), are not subject to PERB’s jurisdiction.  But here, the System’s enabling statutes give the State Mediation and Conciliation Service (SMCS) jurisdiction to investigate and issue determinations concerning representation. These enabling statutes were enacted back when SMCS was under the jurisdiction of the Department of Industrial Relations. But in 2012, SCMS was transferred to PERB. Following the transfer PERB issued regulations governing SMCS’s handling of cases arising under the various public transit statutes.

In this case, the Transit Electromechanics Union’s (TEU) filed a petition for certification to represent certain employees at the System. SMCS denied the petition on the grounds that federal authority did not allow the severing of a smaller unit of employees from an existing bargaining unit. Initially, the Office of Appeals said that it did not have jurisdiction over this matter. However, the Board held that under its regulations, it did have jurisdiction to consider TEU’s appeal.

Comments:

  1. I thought this case was interesting because it’s rare for an independent transit agency to fall under PERB’s jurisdiction. Here, it’s the very narrow area of dealing with petitions for certification. Under PERB’s regulations, the Board is required to apply the “relevant federal law and administrative practice developed under the Labor Management Relations Act, 1947, as amended” in resolving questions of representation.
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Board: Original Signatures Only for Proof of Support

Regents of the University of California (2018) PERB Order Ad-459-H (Issued on 1/19/18)

The San Diego House Staff Association (Association) filed a petition for unit modification seeking to add employees to an existing bargaining unit. As proof of support, the Association provided printouts of employees’ electronic signatures in favor of representation by the union. The Office of the General Counsel dismissed the petition on the grounds that the Association did not provide the employees’ original signatures. The Board affirmed. Continue reading

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Board Declines to Order “Live Reading” Remedy

United Teachers of Los Angeles (2017) PERB Decision No. 2545-E (Issued on 12/28/17)

I’ve been meaning to discuss this case which was issued late last year.  The most interesting issue in this case was the union’s request for a “live reading” order as a remedy to the unfair practices by the employer. In this case, a pair of charter schools were found to have violated the rights of the union and employees when the principal of one of the schools terminated an after-school meeting between a union organizer and teachers, and made coercive statements. The other school principal was found to have refused to allow union organizers to enter into one of the schools to meet with teachers. Continue reading

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