Taking the Battle to the Courts of Appeal

It’s no secret that employers are finding themselves on the losing end of more and more cases at PERB. So it shouldn’t be a surprise that there are a record number of PERB cases being challenged in the Courts of Appeal. As of today, there are 17 cases in the Courts of Appeal. I have to believe that this is far and away the most cases PERB has ever had challenged at one time.

Historically, a party trying to overturn a PERB decision faces long odds as the Courts of Appeal give PERB a lot of deference as an expert administrative agency. But if recent appellate decisions are an indication, the courts may be more willing to scrutinize PERB’s decisions given its recent leanings. For example, PERB has been partially overturned in the last two cases to be decided by the appellate courts. First, in December 2018, the Court of Appeal overturned most of PERB’s decision in Fresno County Superior Court (2017) PERB Dec. No. 2517-C. (Superior Court of Fresno County v PERB (2018) 30 Cal.App.5th 158.) Then, in July 2019, the Court of Appeal overturned much of PERB’s decision in City and County of San Francisco (2017) PERB Dec. No. 2540-M. (City and County of San Francisco v PERB (2019) 2019 WL 3296947) It’s rare for any PERB decision not to be completely affirmed. So for PERB to have two decisions in a row partially overturned is significant.

As mentioned above, there are now a record 17 cases being challenged in the Courts of Appeal. For those of you interested, here is a list I compiled of those 17 cases along with the appellate case numbers:

  1. City & County of San Francisco (2017) PERB Dec. No. 2540-M (Issued on 10/20/17) (Court of Appeal Case No. A152913) (Non-published decision issued on 7/22/19) (Request for publication pending)
  2. State of California (Dept. of State Hospitals) (CAPT) (2018) PERB Dec. No.  2568-S (Issued on 6/12/18) (Court of Appeal Case No. F077764)
  3. California Virtual Academies (2018) PERB Dec. No. 2584-E (Issued on 9/21/18) (Court of Appeal Case No. B293331)
  4. County of Riverside (2018) PERB Dec. No. 2591-M (Issued on 10/23/18) (Court of Appeal Case No. E071683) (Petition denied on 9/20/19)
  5. State of California (Department of Corrections & Rehabilitation) (2018) PERB Dec. No. 2598-S (Issued on 11/27/18) (Court of Appeal Case No. C088562)
  6. County of Ventura (2018) PERB Dec. No. 2600-M (issued on 12/7/18) (Court of Appeal Case No. B294825)
  7. Mount San Jacinto Community College District (2018) PERB Dec. No. 2605-E (Issued on 12/12/18) (Court of Appeal Case No. E071956)
  8. Regents of the University of California (Berkeley) (University Council-AFT) (2018) PERB Dec. No. 2610-H (Issued on 12/19/18) (Court of Appeal Case No. A156228)
  9. Regents of the University of California (CNA) (2018) PERB Dec. No. 2616-H (Issued on 12/21/18) (Court of Appeal Case No. D075218)
  10. Oroville Union High School District (2019) PERB Dec. No. 2627-E (Issued on 2/22/19) (Court of Appeal Case No. C089108)
  11. Contra Costa County Fire Protection District (2019) PERB Dec. No. 2632-M (Issued on 3/7/19) (Court of Appeal Case No. A156897)
  12. Regents of the University of California (UPTE CWA Local 9119) (2019) PERB Dec. No. 2646-H (Issued on 6/3/19) (Court of Appeal Case No. A157597)
  13. San Joaquin Regional Transit District and ATU Local 276 (2019) PERB Dec. No. 2650-P (issued on 6/21/19) (San Joaquin County Superior Court Case No. STK-CV-UWM-2019-0012351)
  14. Claremont Unified School District (2019) PERB Dec. No. 2654-E (Issued on 7/10/19) (Court of Appeal Case No. B299783)
  15. County of Kern & Kern County Hospital Authority (2019) PERB Dec. No. 2659-M (Issued on 8/6/19) (Court of Appeal Case No. F079908)
  16. State of California (Office of the Inspector General) (2019) PERB Dec. No. 2660-S (Issued on 8/15/19) (Court of Appeal Case No. C090346)
  17. County of Santa Clara (2019) PERB Dec. No. 2670-M (Issued on 9/20/19) (Court of Appeal Case No. H047434)

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