The Public Employment Relations Board (PERB) is a quasi-judicial administrative body that handles unfair labor practice charges. It also administers the collective bargaining statutes covering state employees; employees of California's public schools, colleges, and universities; employees of California local public agencies (cities, counties and special districts); trial court employees and supervisory employees of the Los Angeles County Metropolitan Transportation Authority. PERB’s jurisdiction encompasses seven collective bargaining statutes, approximately 7,000 public-sector employers and more than 2 million public-sector employees. The board is comprised of five members appointed by the governor and confirmed by the state Senate.  Members are appointed to five-year terms, with one member’s appointment expiring at the end of each calendar year.

2009-2010 Annual Report (PERB website) (pdf)

The Meyers-Milias-Brown Act (MMBA) in 1968 was the first California law to give public sector employees (city and county employees) the right to collective bargaining. The MMBA was signed by a former union president, Gov. Ronald Reagan. California was the second state in the nation to allow public sector collective bargaining. The first was Wisconsin in 1959, which saw a sharp curtailment of its public sector collective bargaining rights in 2011 that attracted national attention.

Governor Jerry Brown signed the Educational Employment Relations Act of 1976 giving collective bargaining rights to schools and community college employees, and creating the Educational Employment Relations Board, the precursor to PERB.

The name of the board was changed to its current agency title two years later when passage of the Ralph C. Dills Act extended collective bargaining rights to state employees. About 2 million public sector employees and their employers have fallen under the jurisdiction of the board since 2001, with the majority working for California’s public education system, followed by state workers and other public employees in transportation, counties and the courts.

The board’s jurisdiction was expanded in 2004 to include supervisory employees of the Los Angeles County Metropolitan Transportation Authority. That year, it acquired jurisdiction over the Trial Court Employment Protection and Governance Act and the Trial Court Interpreter Employment and Labor Relations Act.

A Little History on the Labor Movement (by Tim Yeung, California PERB Blog)

There are four main organizational elements within the Public Employment Relations Board that carry out its main functions of handling unfair labor practice charges and  administering the process of employees selecting the organizations that will represent them in labor relations.

Office of the General Counsel manages the processing of unfair practice charges and provides legal representation to PERB in all court proceedings. It includes the agency’s chief legal officer and regional attorneys.

Representation Section oversees the statutory process through which employees form a bargaining unit and select an organization to represent them in labor relations with their employer.

Division of Administrative Law houses impartial judges overseeing labor disputes that fall under the board’s jurisdiction. PERB's Administrative Law Judges (ALJ) conduct informal conferences with the parties to unfair practice cases in an effort to settle disputes. If no settlement is reached, ALJs conduct proceedings complete with the presentation of evidence and examination of witnesses under oath. The ALJs then issue proposed decisions consisting of written findings of fact and legal conclusions.

Administration Section provides support services including, accounting, information technology and mail. This section also acts as liaison with the Legislature, the Department of Finance and other agencies within state government.

Unfair Labor Practices

The board investigates and proposes resolutions in unfair practice complaints. The majority of PERB’s unfair labor practice complaints are resolved through voluntary settlement efforts. In fiscal year 2009-2010, the rate of PERB-brokered settlements was more than 50%.

An unfair practice charge alleges that an employer or an employee’s organization engaged in conduct that is unlawful according to the board’s statutes. These might include employers who refuse to negotiate in good faith with the employees’ union; disciplining or threatening of employees for participating in union activities; or promising benefits to employees if they refuse to participate in a union. Employers may file unfair practice charges with the board if they feel unions are threatening employees who refuse to join a union; disciplining a member who files an unfair practice charge against his or her union; or failing to represent bargaining members fairly with their employers.

An unfair practice charge is reviewed by a board agent to determine whether a prima facie violation of the board’s statutes has actually occurred.  If the board finds the answer is no, it sends a warning letter to the charging party, which is given time to either amend or withdraw the charge before it is dismissed.

If a complaint is issued, the parties are called together under the board’s jurisdiction for an informal settlement conference.  If a settlement is not reached, a formal hearing is held before a board administrative law judge, with the board’s rulings bindings on both parties. Decisions of the board itself may be appealed to California’s appellate courts.

Representation

The board administers the representation process that public employees use to freely select their organizations (normally, unions) in negotiations with employers. PERB mediates any disputes over choice of bargaining agent, holds elections and conducts decertification elections if necessary.  

Statutes Administered by the Board

There are seven bargaining statutes administered by the board.  They are:

·  the Educational Employment Relations Act (EERA) from 1976;

·  the State Employer-Employee Relations Act from 1978 (aka the Dills Act);

·  the 1979 Higher Education Employer-Employee Relations Act (HEERA);

·  the 2001 administration of the Meyers-Milias-Brown Act (MMBA)  whose intent was to promote “full communication” between public employees and their employers; 

·  the 2004 oversight of the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act (TEERA);

·  Trial Court Employment Protection and Governance Act (Trial Court Act), which the board acquired jurisdiction of in 2000;

·  the board’s oversight of the Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act) that began in 2002.

How to File UPC by Mail (PERB website)

Laws Overseen by Board (PERB website)

Board Decisions (PERB website)

Board Functions (PERB website)

Almost the entire $6.3 million budget of the board is paid for out of the state General Fund and most expenditures go to salaries, office resources and investigative and appellate costs. Despite cuts throughout state government, PERB’s projected 2011-2012 budget increased 4.4% over the previous year. The Public Employment Relations Board chairperson earned around $132,000 in 2010, while board members received about $128,000.

Public Employment Relations Board Budget (PERB website) (pdf)

3-Year Budget (pdf)

Hot Button

In the middle of heated labor negotiations between the East Whittier School District and its teachers, the school district pressed one particular hot button that the union couldn’t ignore. The district, which is located about 12 miles from downtown Los Angeles, had adopted a policy limiting when employees could wear any signs, buttons or other objects “favoring or opposing any matter that was the subject of negotiations” between the district and the California School Employees Association. The purpose, according to the district, was to keep any matters relating to collective bargaining out of the classrooms.

The Public Employment Relations Board administrative law judge examined the complaints by district employees who were allowed to wear buttons that said “Strength through Unity” in the classroom, but not ones saying “Fair Contract Now.”

After reviewing the case, the board found the district violated the Educational Employment Relations Act and ordered the district to stop prohibiting its employees from wearing buttons pertaining to collective bargaining. The board also ordered the school district to post its Unfair Practice Case notice in the district’s schools.

Board's Whittier Decision  (PERB website) (pdf)

Mandatory Mediation

When PERB took over administration of the Meyers-Milias-Brown Act in 2001, cities and counties were concerned about a power grab by the state. Although the Act guaranteed that a local agency could adopt its own collective bargaining rules and regulations, they feared PERB would eventually try to override them. In February 2011, legislation was introduced that appears to do just that by eating away at the ability of a local agency to adopt its own rules for handling impasses between negotiating parties.

Almost every local agency has its own impasse procedures. Some offer fact-finding services. Many offer mediation and have rules governing the imposition of a “last, best, final offer,” known as an LBFO, when an impasse has been reached.

In February 2011, legislation (AB 646) was introduced that would repeal the right of local agencies to impose an LBFO. Instead, mediation and a fact-finding process would become mandatory. Both processes are time-consuming and costly and there is some question as to how PERB would be able to afford providing these services. 

An employee organization would be able to request a dispute be submitted to a fact-finding panel if a settlement can’t be reached within 15 days of the start of mediation. The fact-finding panel would be authorized to make investigations, hold hearings and issue subpoenas. If the dispute was not settled within 30 days, the fact-finding panel would make findings of fact and recommend terms of settlement. A public agency would be prohibited from implementing its LBFO until at least 10 days after the fact-finders have made their recommendations and the agency has held a public hearing regarding the impasse.

Local Public Employee Organizations: Impasse Procedures (Around the Capitol)

AB 646 Would Impose Mandatory Mediation and Fact-finding under the MMBA (by Tim Leung, California PERB Blog)

The Cat’s Paw

not-infrequent point of contention in unfair labor practice cases is the defense that the person committing the alleged offense was unaware of the real underlying motivation for action. For instance, in cases where a supervisor retaliates against a shop steward by recommending to another unsuspecting supervisor that the employee be disciplined for poor job performance, is the disciplining supervisor committing an unfair labor practice? This is known as “cat’s paw liability,” named after the fable by French poet Jean de la Fontaine about a conniving monkey who convinces an unsuspecting cat to pull chestnuts out of a fire and then scampers away with the booty.

No Liability for Employer

Those alleged to have “cat’s paw liability” argue that cases are seldom as clear cut as the example above because the non-tainted supervisor is probably making independent inquiries into the allegations and doesn’t rely solely on the advice of the tainted supervisor. Federal courts wrestled with this distinction for years, while PERB tended to find the employer liable for unlawful retaliation. In 2008, the board decided two cases in favor of employers but in each one reaffirmed the principle of “subordinate bias liability” that it has supported in cases dating back to 1983. Employers argue that even if the non-tainted supervisor makes no independent inquiry and rubber stamps the decision, it should be upheld unless the tainted supervisor intervened in the process in its later stages. Any law that attempts to parse the responsibility for the decision of a supervisor will be unconstitutionally vague and unenforceable, they argue.

Liability Is Reasonable

Employees argue that at its heart, the “cat’s paw” is an issue of due process. Decision-makers should not blindly accept information from supervisors; they should give employees a chance to tell their side of the story before taking action. They say that all too often a Human Resources department takes the word of a complaining supervisor and puts the burden of proof on the employee to dispute a charge that may not really lie at the heart of their dismissal. In March 2011, the U.S. Supreme Court weighed in on the matter and, while it didn’t quite make a monkey out of employers, it unambiguously placed a large burden on an employer to prove its decision was not motivated by discriminatory animus. In Staub v. Proctor Hospital, the high court rejected an Appeals Court determination that a “cat’s paw” case could not succeed unless the tainted decision maker exercised such “singular influence” over the non-tainted decision maker as to render the decision a product of “blind reliance.” While the high court noted in its unanimous decision written by Justice Antonin Scalia that there are ways an employer can protect itself in a “cat’s paw” case, it clearly stated that the tainted origins of a complaint matter a lot.

Don’t Get Burned By the “Cat’s Paw” Doctrine (by Tim Yeung, California PERB Blog)

Supreme Court Applies “Cat’s Paw” Rule (by Bo Links, Slote & Links law firm)

Beware the Sharp Claws of the Cat's Paw (by Gaye Huxoll, Littler Employment & Labor Law Solutions Worldwide)

The Cat’s Paw Fable Applied in Staub (by Beth Hanson with George Lenard, George’s Employment Blog)

Discrimination by Proxy (by Tom Starner, Human Resource Executive)

Alice Dowdin Calvillo,  2009 – 2011

Tiffany Rystrom, 2009. Rystrom died in office of ovarian cancer at age 66. She had been appointed to the board by Gov. Schwarzenegger in 2007.

Karen L. Neuwald, 2007 – 2009

John C. Duncan, 2004 – 2007

No Chair, 2001 – 2003

David M. Caffrey, 1995 – 2000

Susann M. Williams-Blair, 1993 – 1994

Deborah  M. Hesse, 1984 – 1992

Harry Gluck, 1978 – 1984

Reginald H. Alleyne, Jr., 1976  – 1977