CALPELRA Alert/Recent PERB Decisions Show Pattern: UPC's Go To Hearing Before ALJ
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During PERB’s first two decades, from the mid-1970’s to the mid 1990’s, the agency was inclined to allow unfair practice charges to proceed to a hearing. The initial review by the Office of the General Counsel did not result in dismissing a substantial number of cases. Instead a complaint was issued and the matter would be set for a trial-like evidentiary hearing before an Administrative Law Judge. When assessing whether to dismiss a charge, PERB applied several assessment standards, including a presumption that the facts stated in the charge are taken to be true as alleged, and that only a reasonable theory of law need be articulated. Strict application of these standards kept a substantial number of charges from being dismissed without a hearing.

Beginning with the mid-1990’s, PERB agents dismissed a higher percentage of charges without a hearing.  When these dismissals were challenged, PERB often rendered decisions upholding the General Counsel’s finding that the original charge failed to state a prima facie case.  There are a number of reasons for the increased rate of dismissals that began in the 1990s, including: (1) the fact that the total number of PERB cases had more fully developed the body of law governing the cases presented; and (2) the substantial reduction in the number of PERB staff created pressure to reduce the number of cases that had to be handled. These two factors lead to the establishment of more stringent standards for initial review of unfair practice charges.  Because most unfair practice charges are filed by unions and employees, this trend toward an increase in the rate of dismissals generally favored employers.  This trend now appears to be changing.
 
Below we discuss three cases issued last month where PERB reversed the General Counsel’s decisions not to issue complaints. The recently appointed PERB members appear to be returning to the standards of earlier Boards -- that the filing process needs to be less stringent and the bar lowered to allow more charges to heard by ALJs.

County of Riverside [1]
This case involved the County of Riverside's decision to not pay differential and special premium pays when employees were provided official release time for union negotiations. The General Counsel dismissed the charge, but on appeal the PERB determined that: (1) the charge was timely filed because the six-month filing deadline had been equitably tolled by time spent in processing a grievance to advisory arbitration;  (2) the MOU’s release time provisions were sufficiently ambiguous to allow room for the union’s past practice claim; and (3) the union’s charge was sufficient to establish a prima facie case.  PERB concluded that a complaint should be issued to “test a viable theory of law,” thus allowing both parties the opportunity to prove their case in a hearing.

City of Escondido [2]
Due to substantial fiscal constraints, the City of Escondido decided to lay off all full-time code enforcement officers, and provided the union with the opportunity to negotiate the effects of layoff.  After the layoff the city began employing part-time code enforcement officers who were not in the bargaining unit. The union claimed the employment of these non-unit personnel constituted an unlawful transfer of bargaining unit work requiring negotiations over both the decision and the effects. The city argued that the part-timers were employed as part of a reorganization of code enforcement services and that the overall code enforcement work was actually reduced.

PERB reversed the General Counsel’s partial dismissal of the union’s unfair practice charge.  From PERB’s perspective, if the union could show that the work was transferred from the bargaining unit to the non-unit part-timers, then the city owed the duty to negotiate over both the decision and the effects.  On the other hand, if the facts demonstrate a straight elimination of work, then the city only owed a duty to negotiate the effects of layoff.  PERB determined that the union should be allowed to prove in a hearing that the work was transferred, not eliminated. Also, PERB reversed the General Counsel’s reliance on the management rights clause giving the city the right to contract with outside vendors.  PERB explained that without further evidence it could not infer a waiver of the union’s right to bargain.  That too was a matter for a full evidentiary hearing.

Regents of University of California (U.C. Davis Medical Center) [3]
PERB reversed the office of the General Counsel’s dismissal of a charge claiming that a radiologic technologist was retaliated against because he engaged in protected union activity. The medical center was lacking technologist coverage on Mondays, so the medical center selected the technologist to be reassigned to work on Mondays.  The technologist responded that he would "go to the union to fight the shift change," and over the next month protested the schedule change.  Sometime thereafter the technologist was informed that he would not only work the Monday schedule, but that his new scheduled was split so that he no longer had a choice in days off.

PERB determined that the employee articulated sufficient facts to establish a prima facie case of retaliation, including the required “nexus” – the unlawful motive that can be established by circumstantial evidence. PERB ordered that a complaint be issued and a hearing held on whether the medical center retaliated because the employee engaged in union activity, and assured that “the University will have every opportunity at the formal hearing to present an affirmative defense.”

[1] County of Riverside (2013) PERB Decision No. 2307-M.
[2] City of Escondido (2013) PERB Decision No. 2311-M.
[3] Regents of University of California (U.C. Davis Medical Center) (2013) PERB Decision No. 2314-H.

SIGNIFICANCE

Most unfair practices charges are filed by unions and employees.  Fewer charge dismissals at the initial intake stage will require more evidentiary hearings before ALJs. This will increase costs for public employers and will also make day-to-day labor relations more complex and unpredictable.

Public agencies can no longer assume that PERB will be looking for opportunities to dismiss unfair practice charges at the initial stages.  Consequently, agencies will need to be more strategic and convincing when responding to unfair practices at the investigative stage.  You will need to pay closer attention to the standards for stating a prima facie case, and explain why, even if the facts alleged in the charge are assumed to be true, the charge does not state a claim.  Begin your planning with the assumption that the Office of General Counsel will  issue more complaints.
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
CALPELRA President:  Ivette Peña, Superior Court of California, County of Los Angeles
Alert No. 13-12,  Authors:  William F. Kay and Janet Cory Sommer
Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
Copyright © 2013 CALPELRA (California Public Employers Labor Relations Association), All rights reserved.