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PUBLICATION UPDATE
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California Public Sector
Labor Relations
Publication 176 Release 35 June 2024
HIGHLIGHTS
• Chapters have been revised
and updated.
• Recent Case Updating.
• Recent PERB Decisions.
• Recent Legislation.
Covered Employers and Em-
ployees
The Legislature Employer-
Employee Relations Act (LEERA).
The Legislature Employer-Employee
Relations Act (LEERA). becomes
operative on July 1, 2026, and pro-
vides collective bargaining rights for
employees of the Assembly and the
Senate, respectively. LEERA defines
“employer” to mean “the Assembly
Committee on Rules or the Senate
Committee on Rules, or their desig-
nated representatives.” LEERA de-
fines “employee” as “any employee
respectively of either house of the
Legislature,” except all of the follow-
ing: members of the Legislature; ap-
pointed officers of the Legislature,
such as the Secretary of the Senate
and the Chief Clerk of the Assembly;
department or office leaders, such as
chiefs-of-staff, staff directors, and
chief consultants; confidential em-
ployees; and excluded employees.
LEERA provides that “notwithstand-
ing any other provision of this chap-
ter, the employer shall have the sole
and exclusive authority to designate
employees as department or office
leaders, confidential employees, or
excluded employees,” as defined in
the statute, “except that department
or office leaders, confidential em-
ployees, and excluded employees
shall not, collectively, exceed one-
third of the total employee positions
authorized by the employer.” See
§§ 2.29, 3.12, and additions to most
other chapters.
Private Entities Owned by Public
Entities. In El Camino Healthcare
Dist., El Camino Hosp., and Silicon
Valley Medical Development, LLC
(2023) PERB Dec. No. 2868-M, pp.
27–34 [judicial appeal pending on
other grounds], PERB held that a
single-member limited liability cor-
poration (LLC) that operates outpa-
tient clinics and is wholly owned by a
nonprofit hospital wholly owned by a
public hospital district is subject to
the MMBA. PERB found that the
LLC qualifies as a political subdivi-
sion subject to the MMBA because it
is subject to the control of a public
agency, receives public funds, and
serves a public purpose (providing
healthcare to the public). See
§ 3.04[1][a].
Single-Employer Doctrine. In El
Camino Healthcare Dist., El Camino
Hosp., and Silicon Valley Medical
Development, LLC (2023) PERB
Dec. No. 2868-M, pp. 35–47, PERB
held that a single-employer relation-
ship existed among three respon-
dents: (1) a healthcare district, (2) a
California nonprofit corporation hos-
pital whose sole member is the dis-
trict, and (3) a single-member LLC
wholly owned by the hospital. PERB
found three of the four applicable
factors pointed toward a single-
employer relationship. These find-
ings were based on the following
facts, among others: the contractual
relationship between the hospital and
LLC was not at arms’ length; the
LLC’s president is appointed by, and
reports to, the hospital’s CEO; the
LLC’s profits and losses are allocated
to the hospital; at the time the dispute
arose, the LLC’s lead labor relations
officer was on loan from the hospital;
the hospital and LLC ran an inte-
grated health network under a com-
mon business name; and the hospital
is integrally involved in most LLC
operations. See § 3.04[1][b].
Supervisors and Managers at
Transit Districts. In Sacramento Re-
gional Transit District (2023) PERB
Decision No. 2871-P, PERB held that
Superintendents have collective bar-
gaining rights under the Sacramento
Regional Transit District (Sac RTD)
Act. While federal law and practice
are generally relevant to unit deter-
minations under the PUC transit en-
abling acts, they were not relevant in
this instance given that: (1) the Sac
RTD Act shares neither federal law’s
explicit exclusion of supervisors, nor
its legislative history underlying the
managerial exclusion; and (2) prec-
edent from DIR, PERB, and the ap-
pellate courts, as well as decades of
practice, confirm that the federal su-
pervisory and managerial exclusions
are not relevant to the PUC transit
enabling acts. See 5.04[2].
Temporary Employees Under
the MMBA. Effective January 1,
2024, MMBA Section 3507.7 placed
certain obligations on employers with
respect to temporary employees.
Among other provisions, the MMBA
now requires that, if an employer
hires temporary employees to per-
form the same or similar type of work
that is performed by permanent em-
ployees represented by a union, then,
Upon the union’s request, the tempo-
rary employees shall be included in
the same bargaining unit as the per-
manent employees. See §§ 3.04[2][f],
and 4.02.
Duty to Bargain
Bargaining Obligations When
New Employees Added to Unit.
When a bargaining unit has been
modified by adding new employees
the employer must bargain terms for
the added employees, even if the
contract with the rest of the unit is
closed. To maintain the status quo in
a wage adjustment cycle that occurs
during post-accretion negotiations,
the employer must normally afford
newly added employees all wage ad-
justments mandated by the labor
agreement. But in Regents of the
University of California (2023)
PERB Dec. No. 2884-H, PERB held
that if it is unclear how the adjust-
ments apply to the newly added em-
ployees, then the status quo for that
cycle is the adjustments the newly
added employees would have re-
ceived had they remained unrepre-
sented (i.e. the status quo is defined
by the employees’ previous expecta-
tions). See §§ 6.04[2][b][i] and [ii].
Repudiating Agreements on Per-
missive Subjects. In Oakland Uni-
fied School District (2023) PERB
Dec. No. 1863, PERB partially over-
ruled El Centro Elementary School
District (2006) PERB Dec. No. 1863,
and held that if the parties agree to
include a permissive subject in a
labor agreement, it is a violation of
the duty to bargain for the employer
to repudiate that agreement during
the term of the contract. See
§§ 6.04[2][c] and 8.02[3].
Waiver By Substantive Contract
Provisions. Imperial Irrigation Dis-
trict (2023) PERB Dec. No. 2861-M
held that an MOU provision incorpo-
rating a policy providing that the
employer “may” change employees’
schedule and outlining “four regular
work schedules” did not waive the
union’s right to bargain a schedule
change for sequestered employees
maintaining services during the
COVID-19 pandemic because the
new schedule was not one of the four
regular schedules outlined in the
policy. See § 6.05[c].
Bargaining Obligation in Emer-
gency Situations. In both Imperial
Irrigation District (2023) PERB Dec.
No. 2861-M and County of Santa
Clara (2023) PERB dec. No. 2876-M
(judicial appeal pending), PERB ex-
plained that in the limited situations
when the emergency exception al-
lows employers to make a unilateral
change without completing bargain-
ing obligations, the employer must
provide notice and opportunity to
bargain to the extent practicable, and
changes made must be limited in
duration to the timeframe required by
the nature of the emergency. See
§ 6.05[6].
Scope of Bargaining
Opportunity to Meet and Confer
Over Ballot Measure Effects. On
remand from the California Court of
Appeals, PERB found that the em-
ployer violated the MMBA and
PERB Regulations by not giving the
associations notice and an opportu-
nity to meet and confer over certain
Measure P amendments before plac-
ing the police reform measure on the
November 2020 ballot. (County of
Sonoma (2023) PERB Dec. No.
2772a-M.) See §§ 8.02[2] and
8.04[1].
Work from Home/Telework. In
Oxnard Union High School District
(2022) PERB Dec. No. 2803, PERB
held that a work-from-home policy
was a mandatory subject of bargain-
ing. PERB also held that, although
bargaining obligations might be lim-
ited in an emergency like a pan-
demic, the emergency does not turn a
mandatory topic of bargaining into a
non-mandatory topic. Here, the Dis-
trict failed to abide by its bargaining
obligations when it unilaterally
changed the negotiated telework
policy developed in response to the
emergency. Although the pandemic
conditions had begun to ease when it
deviated from the telework policy,
the District still had a duty to bargain
the change. See § 8.04[15].
Procedures for Assigning
Courses to Teachers. In West Con-
tra Costa Unified School District
(2023) PERB Dec. No. 2881, PERB
held that procedures for assigning
courses to teachers are bargainable,
as these will determine employee
schedules and assignments. See
§ 8.06[10].
Emergency Conditions. In
County of Santa Clara, County of
Santa Clara (2023) PERB Dec. No.
2876-M (judicial appeal pending),
PERB held that emergency condi-
tions do not relieve a public employer
from giving a union notice and an
opportunity to bargain. PERB con-
cluded that the need to save lives
waived the requirement for the par-
ties to reach impasse or agreement
before taking emergency measures,
but the County nonetheless failed to
comply with its continuing duty to
provide notice and to bargain in good
faith as soon as reasonably practi-
cable. See § 8.07[5].
School Closures. In Oakland Uni-
fied School District (2023) PERB
Dec. No. 1875-E, PERB held that a
decision to close schools is a non-
mandatory subject of bargaining.
However, an employer must bargain
over the amount of notice employees
receive either in effects bargaining,
including implementation, over a
particular school closure decision or
as a mandatory subject if the issue
arises as a proposed new or changed
policy of general application. See
§ 8.32.
Strikes and Picketing
Employer Rule Prohibiting
Strikes. In City & County of San
Francisco (2023) PERB Dec. No.
2867-M (judicial appeal pending),
PERB held that an employer cannot
prohibit economic strikes or threaten
to impose penalties on striking work-
ers, although the employer may law-
fully enforce a rule withholding in-
terest arbitration from a union in any
bargaining cycle in which it engages
in an economic strike. See
§§ 10.4011.01, 11.11, 12.06, .
Picketing Injunctions. In Palo-
mar Health v. National Nurses
United (2023) 97 Cal. App. 5th 1189,
the Court of Appeal ordered dis-
missal of a trespass and unlawful
picketing lawsuit based on PERB’s
exclusive jurisdiction over disputes
involving the right to engage in pick-
eting. Because there was insufficient
evidence that union organizers
blocked the hospital entrance or oth-
erwise impeded access to the hospi-
tal, the Court rejected the employer’s
argument that the suit was based on
obstruction of access claims that
should be considered by a court. See
§§ 11.14[2] and 12.01[3] and [4].
Employee Organization Rights
Access to Worksites. In El
Camino Healthcare District, El
Comino Hospital, and Silicon Valley
Medical Development, LLC (2023)
PERB Dec. No. 2868-M (judicial
appeal pending), PERB explained
that employee organizations must be
able to communicate with unit em-
ployees, distribute literature, ex-
change information, investigate
workplace conditions, and assess
contractual and legal compliance,
and found the access restrictions the
district imposed to be overly broad.
While the right of access is subject to
reasonable regulation, PERB ex-
plained that where the workplace in-
cludes sensitive areas, the employer
must narrowly tailor its rules to af-
ford access to the fullest degree pos-
sible, and held that while non-
business solicitation and distribution
may be restricted in acute patient care
areas, the hospital must allow em-
ployee and non-employee union rep-
resentatives into patient care areas if
necessary to reach areas where PERB
precedent allows non-business activi-
ties. See §§ 14.02[1] and [3][ii].
PERB Jurisdiction and Preemp-
tion
Preemption. In Palomar Health v.
National Nurses United (2023) 97
Cal. App. 5th 1189, the Court of
Appeal ordered dismissal of a tres-
pass and unlawful picketing lawsuit
because PERB’s exclusive jurisdic-
tion over the arguably protected con-
duct preempted the claims presented
in the lawsuit. The Court rejected the
employer’s argument that the suit
involved obstruction of access claims
that were appropriately presented to
the court, noting that in assessing the
issue of PERB’s jurisdiction, courts
consider the underlying conduct on
which the suit is based is not the way
the claim is pled. The Court ex-
plained that allowing the case to pro-
ceed in court would pose a significant
risk of interference with PERB’s ex-
clusive jurisdiction over the claims
raised in the union’s unfair practice
charge. See §§ 11.14[2], 12.01[3]
and [4], 18.01[5][a] and [b], and
[6][a][ii].
Claim Preclusion and Collateral
Estoppel. In State of California
(Correctional Health Care Services)
(2024) PERB Dec. No. 2888-S (judi-
cial appeal pending), PERB ex-
plained that a disciplinary decision of
the State Personnel Board (SPB) did
not have a claim preclusion effect on
an unfair practice charge alleging
retaliation for protected activity be-
cause the two agencies have exclu-
sive jurisdiction over separate types
of claims. The principle of collateral
estoppel applied to the SPB’s find-
ings regarding whether the employ-
ee’s conduct constituted adequate
cause for discipline, but did not apply
to the question of whether the em-
ployer retaliated against the em-
ployee for protected activities, a
question the SPB did not decide.
See§ 18.03[2], [3], and [4].
Unfair Practice Charge Practice
and Procedures
Ex Parte Communications.
PERB’s regulations limit ex parte
communications during the formal
hearing stage, during appeals or ex-
ceptions to the Board itself, and on
matters pending before the Board
except as provided by PERB’s regu-
lations. See § 20.04.
Decisions by the Board Itself. In
The Accelerated Schools (2023)
PERB Dec. No. 2855, PERB exer-
cised its discretion not to resolve or
remand a claim that would not mate-
rially alter the Board’s remedy even
if proven. See § 20.30[2][a].
Remedies
Daily Compound Interest. PERB
switched from simple interest to daily
compound interest on all monetary
damage awards. See § 21.38.
Impact of Settlement. County of
Sonoma (2023) PERB Dec. No.
2772a-M involved an employers’
failure to provide notice and an op-
portunity to meet and confer over a
ballot measure before placing it on
the ballot. PERB ordered the em-
ployer to cease and desist further
similar conduct but withheld other
remedies because the parties had
reached an agreement resolving
meet-and-confer issues arising out of
the ballot measure amendment. See
§ 21.21[1].
Live Reading of Order. In Mt.
San Jacinto Community College Dis-
trict (2023) PERB Dec. No. 2865,
PERB ordered a live reading of its
remedial order because customary
remedies were insufficient. See
§ 21.21[2][c].
Make Whole Remedy to Union
for Employer’s Failure or Refusal
to Bargain in Good Faith. For a
charging party to obtain an award
based on the cost of bargaining or
otherwise representing employees, it
need only show by a preponderance
of the evidence that the offending
party’s conduct caused a harm and
that it is reasonably feasible to esti-
mate the financial impact. See
§ 21.33[2].
Penalties and Attorney Fees for
PECC and PEDD Violations. An
employer can be liable for a civil
penalty and certain attorney fees for
violations of the Public Employee
Communication Chapter (PECC;
Gov. Code § 3555 et. seq.) or the
Prohibition on Public Employers De-
terring or Discouraging Union Mem-
bership (PEDD; Gov. Code § 3550
et. seq.). See §§ 21.02, 21.22[5],
21.33 & 31.35.
Remedies for Effects Bargaining
Remedies. In The Accelerated
Schools (2023) PERB Dec. No. 2855,
PERB overruled certain portions of
prior decisions regarding back pay
calculations for effects bargaining
violations. PERB held that for most
effects bargaining violations (other
than stemming from a decision to
close a facility or cease offering a
public service), back pay runs from
the date any impacted employee be-
gan to experience harm until the ear-
liest of: (1) the date the parties reach
an agreement, typically as part of
complying with PERB’s effects bar-
gaining order, (2) the date the parties
reach a good faith impasse, including
exhaustion of any required or agreed
upon post-impasse procedures, and
(3) the date the union fails to pursue
effects negotiations in good faith. See
§ 21.22[6].
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