A Guide to PERB Abbreviations

Have you ever wondered what the letters and numbers in a PERB charge mean?  Here's what you need to know.  All PERB charges follow the same rule:  The first two letters denote the PERB office where the charge was filed; the next two letters denote the type of case; next the number is the number of the charge under the Act; and the last letter is the Act under which the charge was filed.

Here's a guide to the abbreviations used:

Location:

• SA = Sacramento
• SF = San Francisco (Note: For those of you wondering, yes, PERB's office is in Oakland.  But it used to be in SF)
• LA = Los Angeles

Charge types:

• AC Amendment of Certification Request
• AR Arbitration Request
• CE Unfair Practice Charge against Employer (Note:  Most common type of charge)
• CO Unfair Practice Charge against Employee Organization  (Note:  Second most common type of charge)
• DP Decertification Petition
• FS Financial Statement Complaint
• HS HEERA Student Participation Complaint
• IM Impasse Request (Mediation and Factfinding)
• OS Organizational Security Election Request
• PC Petition for Certification
• PN Public Notice Complaint
• RR Request for Recognition
• SV Severance Request or Petition
• UM Unit Modification Petition

Acts:

• E = EERA
• H = HEERA
• S = Dills (Note:  It was initially referred to as "SEERA" before being renamed for the late Senator Ralph Dills)
• M = MMBA
• C = Trial Court Employment Protection and Governance Act
• I = Trial Court Interpreter Employment and Labor Relations Act
• T = Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act

PERB’s End of Fiscal Year Numbers

Fiscal year 2009-2010 is over. PERB’s annual report for 2009-2010 is not due until October 1, 2010. However, I have been keeping track of PERB’s decisions throughout the year. So unless there are additional cases issued before June 30th that PERB has not posted on its website, I have the final tally for the year.  For fiscal year 2009-2010, PERB issued 79 decisions.  The year before, fiscal year 2008-2009, PERB issued 89 decisions. However, PERB had five board members in 2008-09, while it had only four board members for most of 2009-2010, and ended the last few months with only three board members. So given that PERB only had about 3.5 board members this year, and was subject to 3-day a month furloughs, 89 decisions is not bad at all.

Here are some other statistics for the 2009-2010 fiscal year:

Decisions by Statute:

• MMBA: 33
• Dills Act: 17
• EERA: 15
• HEERA: 12
• Court Interpreter: 2

Decisions by Type:

• Appeals from Dismissals: 49 (15 of which were DFR’s)
• Exceptions to ALJ Decisions: 23
• Approval of Settlement: 1
• Administrative Appeal: 2
• Reconsideration: 2
• Unit Modification: 1
• Amend Certification: 1

Decisions by Outcome:

• Dismissal Affirmed: 44
• Dismissal Overturned/Partially Overturned: 5
• ALJ Decisions Affirmed: 14
• ALJ Decision Overturned/Partially Overturned: 9

Decisions by Board Member:  

• Dowdin: 29 
• Wesley: 20 
• McKeag: 15 
• Neuwald (Term ended 2/28/10): 15 

Other Interesting Facts:  

• There were 5 dissents in the last year: 2058M (Neuwald); 2107H (McKeag); 2106S (McKeag); 2103M (Dowdin); 2094H (Neuwald).

Comments: 

1. I need to confirm this, but I believe this is the first year that the MMBA has generated the most cases from the Board. Last year, the MMBA and EERA were tied at 34 each. I believe that before that EERA has always been the dominant Act. This year, it wasn’t close. The MMBA generated 33 cases while EERA only generated 17.
2. The only other major statistic that stands out to me is the Board’s affirmance rate. The rate that dismissals were affirmed by the Board was 89.7%, which is consistent with the historical average of 90%+. However, what is surprising to me is that only 60.8% of the proposed ALJ decisions were affirmed in their entirety. 9 out of 23 proposed ALJ decisions were partially or completely overturned. This is a significant statistic because I think it will only drive more cases to the Board.  As a litigant, I’m much more likely to appeal a case to the Board if I have a 40% chance of success (even if it's only a partial success) versus only a 10% chance.  40% isn’t good, but it’s a whole lot better than 10%.

PERB: State Properly Imposed Layoffs Prior to Completion of Effects Negotiations

State of California (Department of Corrections & Rehabilitation, Department of Personnel Administration) (2010) PERB Decision No. 2115-S (Issued on 6/10/10)

Facts

This case stems from the State’s decision to close the El Paso De Robles Youth Correctional Facility (El Paso) and the DeWitt Nelson Youth Correctional Facility (DeWitt) in response to an anticipated drop in the juvenile population held by the Department of Corrections and Rehabilitation (CDCR) resulting from the passage of SB 81. In November 2007, CDCR developed preliminary plans to close both the El Paso and the DeWitt facilities effective July 31, 2008. Given the language of SB 81, CDCR determined that closure of these two facilities was required in fiscal year 20082009.  The Governor incorporated the closure of these facilities into his proposed budget in January 2008 by not including funding for juvenile services at those facilities.

On March 24, 2008, the State gave written notice to the California Correctional Peace Officers Association (CCPOA) that the two facilities were closing and that affected employees would be subject to layoff. The parties then met and conferred over the effects of the layoffs on six occasions prior to the July 31, 2008 implementation date.  When no "effects" agreement was reached by July 31 the State went ahead and imposed the layoffs.

Decision

In its decision, PERB affirmed that the decision itself to lay off employees is a fundamental management right that is not subject to bargaining. At the same time, PERB affirmed that the “effects” of a layoff are subject to bargaining. In terms of timing, PERB held that in such a situation the notice, “must be given sufficiently in advance of a firm decision to make a change to allow the exclusive representative a reasonable amount of time to decide whether to make a demand to negotiate."

However, PERB then noted that there is an exception to this rule. Specifically, PERB has held that it is permissible to implement a managerial decision before the completion of bargaining over “effects” where:

1. The implementation date is not an arbitrary one, but is based upon either an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the nonnegotiable decision;

2. Notice of the decision and implementation date is given sufficiently in advance of the implementation date to allow for meaningful negotiations prior to implementation; and

3. The employer negotiates in good faith prior to implementation and continues to negotiate in good faith after implementation as to those subjects not necessarily resolved by virtue of the implementation.

Here, the Board found all 3 factors present. The Board also rejected the union’s contention that the State negotiated in bad faith. Accordingly, the charge was dismissed.

Comments

Many public agencies are currently considering layoffs because the budget situation for this fiscal year is not much better than last year. When public agencies do seek to impose layoffs, some unions adopt a tactic to try to delay the layoffs for as long as possible in the hope that the public agency will change its mind due to external political pressures. These unions will submit voluminous information requests, refuse to meet promptly, and/or otherwise engage in tactics to prevent the employer from quickly reaching impasse on "effects" negotiations. In these situations, employers should remember that is it possible to impose a managerial decision, such as a layoff, even when effects negotiations have not been completed if the elements in this case are present.  Obviously, it’s better to have reached agreement and/or impasse prior to implementation.  However, it’s good to keep this exception in mind.

Supreme Court: PERB Has Initial Jurisdiction Over Strikes

City of San Jose v. Operating Engineers Local Union No. 3 (Case No. S162647) (Issued on July 1, 2010)

The California Supreme Court has just issued its decision in City of San Jose.  The key holding is as follows:

"California allows public employees to go on strike to enforce their collective bargaining demands unless the striking employees perform jobs that are essential to public welfare. But whether a particular employee’s job is so essential that the employee may not legally strike is a complex and fact-intensive matter, and one on which public employee organizations and public entities may disagree.


Here, we address this issue: If a public entity is of the view that a threatened strike by its employees will be unlawful because a strike by some or all of the employees creates a substantial and imminent threat to public health and safety, must the public entity first file an unfair labor practice complaint with PERB and await PERB’s adjudication of the complaint before asking a court for an injunction prohibiting the strike?

We agree with the Court of Appeal that PERB has initial jurisdiction over a claim by a public entity that a strike by some or all of its employees is illegal. In addition, we conclude that a public entity must exhaust its administrative remedies before PERB before seeking judicial relief unless one of the recognized exceptions to the exhaustion of administrative remedies requirement is established."

I'll try to have more on this decision tomorrow.