Public Sector Case Notes
| Jurisdiction | California,United States |
| Author | Kerianne Steele |
| Publication year | 2022 |
| Citation | Vol. 36 No. 6 |
AUTHORS*
Kerianne Steele
Katie McDonagh
PERB ACTED WITHIN ITS DISCRETION IN ORDERING THAT COUNTY ALLOW STRIKING MEMBERS TO USE ACCRUED LEAVE FOR PERIOD AFTER STRIKE
County of San Joaquin v. Pub. Empl. Relations Bd., 82 Cal. App. 5th 1053 (2022)
After granting the employer's petition for writ of review, the California Court of Appeal affirmed the Public Employment Relations Board's (PERB or Board) decision in all respects. In the underlying PERB case, County of San Joaquin, PERB Dec. No. 2761-M (2021), the Board found that the employer had interfered with and discriminated against the protected activity of the union and its members by prohibiting members from returning to work after a noticed strike due to the fact that the employer's contract with a strike replacement company contained a minimum shift guarantee, for refusing to permit members to use accrued leave for the time they were prohibited from returning to work, and for determining that such absences were unauthorized, which could be used as a basis for discipline.
PERB also established a new three-part test under which a public healthcare employer that prohibits striking workers from returning to work due to a minimum shift guarantee could typically establish an affirmative defense. "The test requires a public health care employer to 'prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical healthcare services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees' union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of such a guarantee, and if requested, bargained in good faith over the potential effects on bargaining unit employees.'" After reviewing these factors, PERB determined that the employer was unable to meet any of the three elements of the test.
Upon review, the Court determined that PERB did not act in excess of its authority and its decision was supported by substantial evidence and not clearly erroneous.
S.B. 957 (LAIRD)-PUBLIC EMPLOYMENT RELATIONS BOARD: SANTA CRUZ METROPOLITAN TRANSIT DISTRICT: EMPLOYEE RELATIONS
On September 2, 2022, Governor Gavin Newsom signed S.B. 957 (2022 Cal. Stat. 240), which brings Santa Cruz Metropolitan Transit District (Santa Cruz METRO) under PERB's unfair practice jurisdiction.
Currently, PERB's jurisdiction does not apply to employees of specified transit agencies, including Santa Cruz METRO. As of January 1, 2023, PERB will have jurisdiction...
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