PERB Moves Forward on Regulatory Packages

Update on Regulatory Packages

At its meeting on December 12, 2019, PERB’s Board instructed staff to move forward with its EFile regulations. The Board had previously instructed staff to move forward with proposed regulations on the State Mediation and Conciliation Service, continuances, and recusals. Once staff have prepared these regulatory packages they will be sent to the Office of Administrative Law to begin the formal process under the Administrative Procedure Act.

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NLRB Overrules Purple Communications; No Change Expected by PERB

On December 17, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014). In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the NLRB, according to its press release, “reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis.” Before, under Purple Communications, employees with access to their employer’s email system for work-related purposes had a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. 

In Caesars Entertainment, the NLRB held that, “employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.” The NLRB created a narrow exception to this rule in situations where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. 

Impact on California Public Sector

In Napa Valley CCD (2018) PERB Decision No. 2563-E, the Public Employment Relations Board (PERB) adopted the holding in Purple Communications. However, as I noted in my blog post at the time, PERB took great pains to emphasize that California law provides even stronger support for employee use of an employer’s e-mail system than under federal law. I referred to Napa Valley CCD as a “heightened” version of Purple Communications.

Because PERB grounded the Napa Valley CCD decision on California law, in my opinion the NLRB’s decision in Caesars Entertainment has no immediate impact on the public sector in California. Moreover, I can’t see the current PERB following the NLRB on this issue even if given the opportunity. Accordingly, my advice to California public employers is to continue to abide by Napa Valley CCD.

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PERB Invites Comments on Revised EFile Regulations

PERB has invited public comments on its revised EFile regulations to be considered at its December 12, 2019 meeting. The draft regulatory package can be found here. PERB is asking that stakeholders provide comments in person at its meeting on December 12, 2019, or preferably in writing before that date.

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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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Governor Signs AB 355: Adds OCTA to PERB Jurisdiction

The Governor has signed AB 355 which adds the Orange County Transportation Authority (OCTA) to PERB’s jurisdiction. Last year Governor Brown vetoed AB 2886 which would have added the OCTA and the San Joaquin Regional Transit District to PERB’s jurisdiction. In his veto message, Governor Brown noted that PERB’s jurisdiction has steadily increased over the years while its funding has not. According to Governor Brown, until PERB is able to handle its workload its jurisdiction should not be further expanded.

Now that Governor Newsom has signed AB 355 it will be interesting to see whether other transit agencies will also seek to be added to PERB’s jurisdiction.

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