February 2024 Board Decisions Summary
In February 2024, the Board issued five decisions. The decision descriptions and dispositions are below.
Employer: State of California (California Correctional Health Care Services)
Case No. SA-CE-2198-S
Issued date: February 8, 2024
Precedential
Description: The complaint alleged that California Correctional Health Care Services (CCHCS) violated the Dills Act by: (1) denying a request for union representation from an employee, Sean Kane, during a meeting between Kane and his supervisor; and (2) terminating Kane in retaliation for protected activities, including his work on behalf of his union. While the parties litigated at PERB, Kane appealed his dismissal to the State Personnel Board (SPB), which found that Kane engaged in misconduct but directed CCHCS to reduce Kane’s discipline to a one-month suspension. After SPB’s decision became final, a PERB ALJ found that CCHCS unlawfully denied Kane’s request for union representation and terminated him in retaliation for protected activities. The ALJ partially agreed with CCHCS on its affirmative defense, finding that it would have suspended Kane for one month based on his proven misconduct, absent his protected activities. The ALJ therefore matched SPB’s remedy, ordering CCHCS to reduce Kane’s penalty to a one‑month suspension. In their exceptions, both parties asked the Board to rely on certain parts of SPB’s decision.
Disposition: The Board explained that when PERB resolves a Dills Act discrimination charge after SPB has already resolved whether the state had adequate cause to issue discipline: (1) claim preclusion does not apply; and (2) issue preclusion can apply as to certain issues that are common to both cases, but SPB’s decision does not necessarily control either the ultimate retaliation issue before PERB, or related remedial issues. The Board then applied PERB’s retaliation framework to the record (including those SPB findings meriting preclusive effect) and found no sufficient basis to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. The Board therefore remanded the matter for mediation and, absent a settlement, for further proceedings to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. Finally, a two-member Board majority found that CCHCS did not unlawfully deny Kane’s request for union representation, while one member wrote separately in favor of affirming the ALJ’s decision on that claim.
Employer: Regents of the University of California (Irvine)
Case No. LA-CE-1395-H
Issued date: February 9, 2024
Non-Precedential
Description: Charging Parties, five UC Irvine (UCI) employees in two UAW-represented bargaining units, filed grievances alleging that UCI violated the applicable MOU for each bargaining unit by requiring Charging Parties to report their participation (if any) in a strike. UCI refused to process Charging Parties’ grievances because UAW had filed a systemwide grievance regarding the same violations. Charging Parties allege that UCI violated HEERA by refusing to allow them to present grievances through a representative of their own choosing. PERB’s Office of the General Counsel (OGC) dismissed the charge for failure to state a prima facie case.
Disposition: In a non-precedential decision, the Board reversed and remanded to OGC to issue a complaint. The applicable MOUs permitted Charging Parties to file their own grievances and pursue them via a representative of their own choosing, at all stages prior to arbitration. Therefore, the charge stated a prima facie case that UCI failed or refused to process Charging Parties’ grievances in violation of HEERA’s qualified right to self-representation.
Employer: El Centro Regional Medical Center
Case No. LA-CE-1566-M
Issued date: February 21, 2024
Precedential
Description: This case came before the Board on exceptions by El Centro Regional Medical Center to the proposed decision of an administrative law judge, which concluded that the hospital violated the Meyers-Milias-Brown Act (MMBA) when it failed to pay the Laboratory Unit employees an annual raise because they engaged in protected activities. The ALJ also determined that the hospital’s decision to not pay the wage increase was a unilateral change to the status quo, and that the hospital’s refusal to pay the increase constituted discrimination and interference. The ALJ’s proposed decision included a backpay award backpay for all current and former Laboratory Unit employees who had commenced employment before January 1, 2021, for an amount equal to two (2) percent of any wages earned between July 4, 2021 and July 26, 2022, augmented by interest at a rate of seven (7) percent per annum.
Disposition: The Board affirmed the ALJ’s determinations, supplemented the ALJ’s analysis, and modified one aspect of the remedy. The Board determined that, by failing to pay the Laboratory Unit employees the July 2021 wage increase, ECRMC unlawfully committed a unilateral change and engaged in unlawful discrimination and interference. Regarding remedies, the Board modified the remedy and adopted a new policy under which interest on backpay will be compounded on a daily basis (rather than annually). Consistent with the Board’s practice, daily compounding interest will apply retroactively in the instant case and in all pending cases.
Employer: City and County of San Francisco
Case No. SF-CE-2037-M
Issued date: February 22, 2024
Non-Precedential
Description: Charging Party San Francisco City Workers United (SFCWU) appealed an administrative determination by PERB’s Appeals Office rejecting as untimely SFCWU’s appeal of a dismissal by PERB’s Office of the General Counsel.
Disposition: The Board affirmed the Appeals Office’s rejection of Charging Party’s late filing.
Employer: City and County of San Francisco
Case No. SF-CE-1779-M
Issued date: February 27, 2024
Precedential
Description: The complaint alleged that the City and County of San Francisco violated the MMBA by refusing to provide SEIU with certain data it requested to investigate a class action grievance alleging that the City discriminated against African American employees, including by extending their probationary period and/or releasing them from probation. Among the categories of information that the City refused to provide was disaggregated race/ethnicity data for employees who the City released from probation or who had their probationary periods extended. After an ALJ issued a proposed decision in SEIU’s favor, the City excepted as to liability, while SEIU’s exceptions sought attorney fees for litigating its information request UPC and arbitrating its discrimination grievance.
Disposition: The Board denied both parties’ exceptions. The City did not prove that disclosing disaggregated race/ethnicity information to SEIU would invade privacy in a manner that is serious in both its nature and scope, much less that there is a serious privacy invasion that outweighs SEIU’s purpose in investigating potential discrimination. The Board did, however, order SEIU not to release or use the disaggregated information other than as needed to investigate and/or seek to prevent, lessen, ameliorate, or remedy potential workplace discrimination or other potential legal or contractual violations. The Board found no basis for attorney fees for litigating the UPC given that the case involved an issue of first impression before PERB. The Board also found no basis for the compliance officer to consider SEIU’s request for attorney fees in arbitration given that SEIU had kept the UPC in abeyance until after the arbitration was complete.