PERB has released its report on its Case Processing Efficiency Initiative. (Click here.) The goal of the initiative was to find ways to improve PERB’s processing of cases. A series of meetings were held at PERB’s regional offices to gather stakeholder input. In addition, PERB held a series of internal meetings with its staff. The final report lists all the ideas presented at these forums in order of High, Medium, and Low priority.
PERB has scheduled two meetings in March to review the report. The meetings are:
- March 14, 2018 at 10:00 a.m. at the PERB Headquarters Office, 1031 18th Street, Room 103, Sacramento, CA.
- March 15, 2018 at 10:00 a.m. at the California Dept. of Tax, 505 North Brand Blvd., Ste 700 (Room 705), Glendale, CA.
The PERB has also invited the submission of written comments on the report by March 9, 2018, so that the Board can review them in advance of the public meetings.
Governor Brown has announced the appointment of three Board Members to the Public Employment Relations Board (PERB). (Click here for the press release.) Priscilla Winslow was re-appointed to the Board. Member Winslow has been a Member of PERB since 2013. The Governor also announced two new Board Members: Ari Krantz and Erich Shiners. Mr. Krantz is an attorney with Leonard Carder LLP, a prominent union-side law firm. Mr. Shiners is an attorney with Liebert Cassidy, and formerly an attorney with Renne Sloan Holtzman Sakai LLP, where he represented public agencies in all areas of labor and employment law. Here are the bios of the appointees from the Governor’s new release: Continue reading
The Supreme Court held oral argument in the Janus v. AFSCME case this morning. A transcript of the oral argument can be found here. Overall, the argument was very similar to the one held in Friedrichs v. California Teachers Association last year. Here are some highlights of the questions and answers:
How are union agency fees any different than student activities fees or bar association fees? (Questions from Justices Ginsburg and Sotomayor) William Messenger, the attorney for Mark Janus, responded that compelling state interests justify these other types of fees, but not for union agency fees. Continue reading
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