PERB Schedules Oral Argument on Interpretation of Gov Code 3550

AFSCME Local 3299 v Regents (Case No. SF-CE-1188-H); UPTE Local 9119 v Regents (SF-CE-1189-H); Teamsters Local 2010 v Regents (SF-CE-1192-H); Teamsters Local 2010 v Regents (SF-PE-5-H)

PERB has scheduled a virtual combined oral argument in these cases for July 23, 2020, at 1:30 p.m. Next week PERB will be releasing a link where the public may view the oral argument via a live stream on PERB’s YouTube channel.

The Board rarely grants oral argument in cases. This will be the first oral argument held by the Board under Governor Newsom. The last time PERB held oral argument was in 2014 in San Bernardino County Public Attorneys Association v. County of San Bernardino (PERB Case Nos. LA-CE-431-M; LA-CE-554-M). Before that, the Board held oral argument once in 2013 and once in 2002. So this will be only the fourth oral argument held by the Board in more than 20 years

As set forth in the notice of oral argument, the Board has requested that the parties address the following issues:

1. What statutory construction best describes the relationship (if any) between §3550 in the PEDD and §3571.3 in HEERA?

2. When interpreting the terms “deter” and “discourage,” what is the relevance (if any) of (a) the definition of “deter” in subdivision (a) of §16645; (b) the employer’s motive; (c) the truthfulness or misleading nature of the employer’s communication or conduct; (d) the specific context in which the communication or conduct occurred; and (e) any other potentially relevant circumstances.

Notably, in addition to the ALJ decision in these cases, PERB ALJs have issued three other proposed decisions (Alliance Schools, Orange County IHSS, Gridley USD) interpreting Gov. Code section 3550, each with a slightly different take on the meaning of the statutory language. PERB is also a defendant in a federal case alleging that Gov. Code section 3550 impermissibly chills the free speech rights of elected officials in California (Barke v Banks, C.D. Cal. Case No. 8:20-cv-00358-JLS-ADS).

Comments:

  1. Because I am counsel to the Regents in these cases and will be doing the oral argument I will not comment any further right now. I will just say I am looking forward to addressing PERB’s questions on the 23rd…

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