City of San Diego (2020) PERB Decision No. 2747-M, p. 27.

Summary

City of San Diego (2020) PERB Decision No. 2747-M, p. 27.

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2747M
Decision 2747M – City of San Diego
LA-CE-1229-M
Decision Date: October 6, 2020
Decision Type: PERB Decision
Description:
Charging Party claimed the City of San Diego: (1) bargained in bad faith while engaging in negotiations required under a grievance settlement; (2) retaliated against the Union and employees it represents for their protected activities; and (3) sent three e-mails that constituted unlawful interference with MMBA rights. After an administrative law judge held an evidentiary hearing, the Board directed that the record and the parties’ post-hearing briefs be submitted directly to it for decision pursuant to PERB Regulation 32215.
Disposition:
The Board determined that the Union established that two of the three challenged e-mails interfered with protected rights, but the Union established neither its bad faith bargaining claim nor its retaliation claim.
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Perc Vol: 45
Perc Index: 45
Decision Headnotes
400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards
To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to protected rights under our statutes. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 3.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, then the employer must show that the interference was caused by circumstances beyond its control and that no alternative course of action was available. (Id. at pp. 3-4.) On the other hand, for employer conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity. (Id. at p. 3.) In such cases, PERB will balance the employer’s asserted interests against the tendency to harm protected rights; if the tendency to harm outweighs the asserted business justification, PERB finds a violation. (Ibid.)
400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards
In Regents of the University of California (2018) PERB Decision No. 2610-H, the Board explained that conduct is inherently destructive if its “natural and probable consequence” is to discourage protected activity, including but not limited to requiring employees to give up protected activity to receive a pay increase; maintaining an overbroad restriction that bars a mix of protected and unprotected activities; or implementing a wholesale replacement of represented employees with non-represented employees. (Id. at pp. 58-61 & 71.)
400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards
Once a prima facie case is established, the Board has categorized employer conduct as “inherently destructive” or having a “comparatively slight” impact (see, e.g., Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 3), but the latter descriptor signifies only that the tendency to harm protected rights is something less than inherently  destructive; it does not mean that the tendency to harm is necessarily “slight.” Within the category of employer actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights to the extent possible. (See, e.g., County of San Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 36 [“The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm.”]; Claremont Unified School District (2019) PERB Decision No. 2654, p. 23 [“The key to an appropriate directive is that it is tailored to the particular circumstances.”]; Regents of the University of California (2004) PERB Decision No. 1700-H, adopting proposed decision at p. 60 [in devising access rules for its main administrative building, employer may have had legitimate concern that demonstrators might block ingress and egress or otherwise disrupt operations, but employer broadly prohibited all demonstrations rather than narrowly drawing its rules to address legitimate operational needs].)
400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards
In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another.” (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.) E-mail from manager to unit member fell outside the range of permissible employer speech in two respects. First, it was coercive in that it suggested that employees may lose desirable assignments due to protected activity. Next, management e-mail suggested that employee might avoid adverse action and/or obtain preferential treatment for opposing union leadership. It is of no consequence whether unit member shared manager’s e-mails with any other employees or Union representatives. Manager’s coercion was unlawful even if no one other than unit member receiving e-mail knew of it. (See, e.g., Claremont Unified School District (2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision No. 834, p. 13 [a brief statement made only to one person is sufficient to support an interference claim].) Furthermore, employer’s e-mail also tended to interfere with others’ protected conduct given the possibility that unit member might forward it to other employees or share the message contained in the e-mail.
400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards
MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer also may violate this clause by interfering in an employee organization’s internal affairs, even in the absence of competing unions. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 22-34 (Arcadia).) To demonstrate such interference, a charging party must establish facts showing that the employer’s conduct tends to interfere with the internal activities of an employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An employer may not take a position on internal union affairs or put its thumb on the scale in favor of or against a particular union leader. (Id. at pp. 25-30.)
405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.01000 – In General
In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another.” (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.) E-mail from manager to unit member fell outside the range of permissible employer speech in two respects. First, it was coercive in that it suggested that employees may lose desirable assignments due to protected activity. Next, management e-mail suggested that employee might avoid adverse action and/or obtain preferential treatment for opposing union leadership. It is of no consequence whether unit member shared manager’s e-mails with any other employees or Union representatives. Manager’s coercion was unlawful even if no one other than unit member receiving e-mail knew of it. (See, e.g., Claremont Unified School District (2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision No. 834, p. 13 [a brief statement made only to one person is sufficient to support an interference claim].) Furthermore, employer’s e-mail also tended to interfere with others’ protected conduct given the possibility that unit member might forward it to other employees or share the message contained in the e-mail.
409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech
In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another.” (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.) E-mail from manager to unit member fell outside the range of permissible employer speech in two respects. First, it was coercive in that it suggested that employees may lose desirable assignments due to protected activity. Next, management e-mail suggested that employee might avoid adverse action and/or obtain preferential treatment for opposing union leadership. It is of no consequence whether unit member shared manager’s e-mails with any other employees or Union representatives. Manager’s coercion was unlawful even if no one other than unit member receiving e-mail knew of it. (See, e.g., Claremont Unified School District (2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision No. 834, p. 13 [a brief statement made only to one person is sufficient to support an interference claim].) Furthermore, employer’s e-mail also tended to interfere with others’ protected conduct given the possibility that unit member might forward it to other employees or share the message contained in the e-mail.
501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15 )  If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the exact same action even absent protected activity. (Ibid.) This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.)
503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General
PERB uses an objective test to determine whether an employer’s action is adverse. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 19 (San Francisco), citing Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 24-25 (Chula Vista).) “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” (San Francisco, at pp. 19-20, citing Chula Vista, at p. 25 (internal citation omitted).) Context is highly relevant in determining whether non-punitive directives are adverse. (San Diego Unified School District (2019) PERB Decision No. 2683, p. 9.)
503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General
PERB precedent provides that a threat of action and carrying out the action are separate adverse acts. (San Diego Unified School District (2017) PERB Decision No. 2538, pp. 12-13; City of Davis (2016) PERB Decision No. 2494, p. 42; Regents of the University of California (2004) PERB Decision No. 1585-H, pp. 7-8.)
503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities
Reducing work opportunities constitutes an adverse action. (See, e.g., El Dorado Union High School District (1986) Decision No. 564, pp. 21-25 [district engaged in adverse action by declining to offer bus drivers an opportunity to drive on weekend trips and instead arranging travel via Greyhound].)
504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.14000 – Other/In General
To resolve a union’s retaliation claim, the Board must consider the employer’s motivations. In doing so, the Board keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.)
505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General
To resolve a union’s retaliation claim, the Board must consider the employer’s motivations. In doing so, the Board keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.)  The City prevailed on its affirmative defense where Board found that the Union established that discriminatory animus was a motivating factor in the Fire Chief’s decision to modify the composition of the City’s elite swiftwater rescue team (SWR Team), but the City demonstrated that it would have taken the same action, at the same time, even absent the Union’s protected activities.
505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General
Because the record revealed dual motives, PERB must determine if the District met its burden to show it would have taken identical action, even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 15-16.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive, in order to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.)  The Board found that Fire Chief was already contemplating the change to the composition of the City’s elite swiftwater rescue team for legitimate reasons that predated any protected activity. Accordingly, the Board found that the City established its affirmative defense—that it would have taken exactly the same action at the same time even absent any protected activity—by a preponderance of the evidence.
601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific conduct involved and its effect on the negotiating process. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34 (Arcadia).) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) The totality of conduct test applies to bad faith bargaining allegations that our precedent has not identified as constituting a per se refusal to bargain. (Id. at p. 35.) Under this test, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith. (Ibid.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Ibid.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (City of San Jose (2013) PERB Decision No. 2341-M, p. 19.)
606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General
In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific conduct involved and its effect on the negotiating process. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34 (Arcadia).) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) The totality of conduct test applies to bad faith bargaining allegations that our precedent has not identified as constituting a per se refusal to bargain. (Id. at p. 35.) Under this test, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith. (Ibid.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Ibid.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (City of San Jose (2013) PERB Decision No. 2341-M, p. 19.)
606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General
If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (City of San Ramon, supra, p. 7, fn. 9; County of Riverside, supra, p. 11.) Here, the Board found the City did not take any such steps—it did not even declare impasse.
606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer
“Making proposals that are predictably unacceptable to the other party is a well-established indicium of bad faith bargaining.” (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 33.) The Board noted that the City’s opening proposal was identical, or nearly so, to the policy which led to the dispute, but found the City’s proposal was not predictably unacceptable where the City showed flexibility on the proposal from the outset and the City’s conduct did not frustrate negotiations.
606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other
Where there is an obligation to do so, failure to return to the status quo, if proven, would be an indicator of bad faith. (County of Kern (2018) PERB Decision No. 2615-M, p. 11, fn. 8 [restoring the status quo is a necessary condition for meaningful bargaining to occur]; City of San Ramon (2018) PERB Decision No. 2571, p. 15 [good faith bargaining is not possible when employer has already “imposed the very terms under discussion, thereby forcing [the union] to start from a position of having to talk the [employer] back to the status quo.”]; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 49 [compelling a union to bargain back to the status quo makes impossible the give and take that is the essence of good faith bargaining]; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24 [bargaining “from a hole” is futile, and restoring the status quo is necessary so that “bargaining may proceed on a level playing field.”].)
606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other
If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (City of San Ramon, supra, p. 7, fn. 9; County of Riverside, supra, p. 11.) Here, the Board found the City did not take any such steps—it did not even declare impasse.
700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.01000 – In General
MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer also may violate this clause by interfering in an employee organization’s internal affairs, even in the absence of competing unions. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 22-34 (Arcadia).) To demonstrate such interference, a charging party must establish facts showing that the employer’s conduct tends to interfere with the internal activities of an employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An employer may not take a position on internal union affairs or put its thumb on the scale in favor of or against a particular union leader. (Id. at pp. 25-30.)
700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.02000 – Domination vs Assistance
MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer also may violate this clause by interfering in an employee organization’s internal affairs, even in the absence of competing unions. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 22-34 (Arcadia).) To demonstrate such interference, a charging party must establish facts showing that the employer’s conduct tends to interfere with the internal activities of an employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An employer may not take a position on internal union affairs or put its thumb on the scale in favor of or against a particular union leader. (Id. at pp. 25-30.)
700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.04000 – Management Aid or Instigation in Forming Unions Committees, Etc.; Statements in General; Free Speech
MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer also may violate this clause by interfering in an employee organization’s internal affairs, even in the absence of competing unions. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 22-34 (Arcadia).) To demonstrate such interference, a charging party must establish facts showing that the employer’s conduct tends to interfere with the internal activities of an employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An employer may not take a position on internal union affairs or put its thumb on the scale in favor of or against a particular union leader. (Id. at pp. 25-30.)
700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality
MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer also may violate this clause by interfering in an employee organization’s internal affairs, even in the absence of competing unions. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 22-34 (Arcadia).) To demonstrate such interference, a charging party must establish facts showing that the employer’s conduct tends to interfere with the internal activities of an employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An employer may not take a position on internal union affairs or put its thumb on the scale in favor of or against a particular union leader. (Id. at pp. 25-30.)
1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.02000 – Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine
The MMBA generally precludes PERB from issuing a complaint based on an unfair practice occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089-1092.) However, the limitations period begins to run once the charging party knew or reasonably should have known of the conduct underlying the charge. (United Teachers of Los Angeles (Raines, et al.) (2016) PERB Decision No. 2475, p. 57.) The Union’s amendment of its charge to add an interference claim was not barred by the statute of limitations where there was no dispute that the Union first learned of management’s internal e-mails (which formed the basis for the interference charge) by virtue of the City’s response to a subpoena, well within the six months prior to the Union’s request to amend the complaint.
1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.02000 – Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine
Under the relation-back doctrine, a charging party may amend a charge to add alleged violations that it discovered more than six months earlier “if the amended charges are closely related to the actions in the original charge.” (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, p. 37, quoting Gonzales Union High School District (1984) PERB Decision No. 410, pp. 19-20.) Because the Union raised the interference allegations within six months of discovering management’s’ e-mails, PERB did not need to determine whether the relation back doctrine would apply to these facts.
1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions
The Teamsters’ motion to amend the complaint during the hearing was appropriate under PERB Regulation 32648, which provides that the Board agent shall permit an amendment if the Board agent determines that amendment of the charge and complaint is appropriate. In determining the appropriateness of the amendment, the Board agent shall consider, among other factors, the possibility of prejudice to the respondent. The Board found that even if the addition of a new theory of liability based on conduct that occurred more than two years prior—but not discovered by Teamsters until three months before its motion to amend—would constitute prejudice, any such prejudice was dispelled because the City had four months to prepare to defend against the new interference allegations, which were fully litigated during the remaining days of hearing. (See Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [“Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case.”].)
1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay
Union witness testimony, recounting conversation with his superior, falls within the party admission exception to hearsay, because superior was an agent of the City.  (Bellflower Unified School District (2014) PERB Decision No. 2385, p. 10.)

Retrieval chunks

• #1

  Home | Decisions | 2747M Decision 2747M – City of San Diego LA-CE-1229-M Decision Date: October 6, 2020 Decision Type: PERB Decision Description: Charging Party claimed the City of San Diego: (1) bargained in bad faith while engaging in negotiations required under a grievance settlement; (2) retaliated again…

• #2

  In Regents of the University of California (2018) PERB Decision No. 2610-H, the Board explained that conduct is inherently destructive if its “natural and probable consequence” is to discourage protected activity, including but not limited to requiring employees to give up protected activity to receive a pay increase;…

• #3

  In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determin…

• #4

  MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer al…

• #5

  In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determin…

• #6

  In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determin…

• #7

  To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent t…

• #8

  PERB precedent provides that a threat of action and carrying out the action are separate adverse acts. (San Diego Unified School District (2017) PERB Decision No. 2538, pp. 12-13; City of Davis (2016) PERB Decision No. 2494, p. 42; Regents of the University of California (2004) PERB Decision No. 1585-H, pp. 7-8.) 503…

• #9

  Because the record revealed dual motives, PERB must determine if the District met its burden to show it would have taken identical action, even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 15-16…

• #10

  606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES 606.01000 – In General In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, d…

• #11

  “Making proposals that are predictably unacceptable to the other party is a well-established indicium of bad faith bargaining.” (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 33.) The Board noted that the City’s opening proposal was identical, or nearly so, to the policy which led to the di…

• #12

  If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571, p. 7, fn. 9; …

• #13

  MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer al…

• #14

  MMBA section 3506.5, subdivision (d) proscribes public agencies from “interfer[ing] with the . . . administration of any employee organization.” While much PERB precedent addresses an employer’s duty to remain strictly neutral when two different employee organizations are in competition with each other, an employer al…

• #15

  Under the relation-back doctrine, a charging party may amend a charge to add alleged violations that it discovered more than six months earlier “if the amended charges are closely related to the actions in the original charge.” (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, p. 37, quoting G…