The Accelerated Schools (PERB 2855E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 99,
Charging Party,
v.
THE ACCELERATED SCHOOLS,
Respondent.
Case Nos. LA-CE-6431-E
LA-CE-6473-E
LA-CE-6505-E
LA-CE-6515-E
PERB Decision No. 2855
March 17, 2023
Appearances: Rothner, Segall & Greenstone by Carlos Coye, Attorney, for
Service Employees International Union, Local 99; Liebert Cassidy Whitmore by
Adrianna Guzman and Anni Safarloo, Attorneys, for The Accelerated Schools.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Service Employees International Union, Local 99
(SEIU) to a proposed decision of an administrative law judge (ALJ). The proposed
decision addressed four unfair practice charges SEIU filed against The Accelerated
Schools (TAS), a nonprofit public benefit corporation operating charter schools within
the Los Angeles Unified School District. PERB consolidated the four cases after the
Office of the General Counsel (OGC) issued a complaint in each case alleging that
TAS violated the Educational Employment Relations Act (EERA).1
1 EERA is codified at Government Code section 3540 et seq. All undesignated
statutory references are to the Government Code.

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In the first two cases, the complaints alleged interference with protected
activities, and the ALJ found in favor of SEIU. Specifically, the ALJ found that TAS
Chief Executive Officer Johnathan Williams interfered with protected activity when he:
(a) threatened SEIU organizer Jorge Roman and SEIU chief steward Hilda
Rodriguez-Guzman while they distributed bargaining updates on a public sidewalk
outside the main TAS campus; and (b) monitored and surveilled Roman while he
attempted to meet with employees.
In the third and fourth cases, the complaints alleged that TAS violated EERA in
multiple respects when it eliminated Rodriguez-Guzman’s Health Services Coordinator
position, laid her off, and created an unrepresented Registered Nurse (RN) position to
provide higher-level health care services. The ALJ concluded that these actions were
not retaliation for protected activity. The ALJ also dismissed, without any analysis, an
allegation that TAS engaged in unlawful direct dealing when it presented
Rodriguez-Guzman with a severance agreement. But the ALJ found TAS liable for not
affording SEIU adequate notice and an opportunity to meet and negotiate before TAS
laid off Rodriguez-Guzman. The ALJ directed TAS to bargain and to pay
Rodriguez-Guzman monetary compensation until bargaining is complete, but the ALJ
did not direct TAS to reinstate her.
TAS filed no exceptions and urges us to affirm the proposed decision. SEIU
primarily excepts to: (1) the ALJ’s conclusion on the retaliation claim; (2) the ALJ’s
failure to analyze the direct dealing claim; and (3) the ALJ’s decision not to reinstate
Rodriguez-Guzman.
Having reviewed the proposed decision, the parties’ arguments, and the record,

3
we do not sustain SEIU’s exceptions. For the reasons explained below, we find that
TAS did not retaliate against Rodriguez-Guzman and that the proper remedy in this
matter does not include reinstatement. In resolving the remedy question, we clarify
and update PERB precedent on remedying effects bargaining violations. While the
ALJ should have analyzed the direct dealing allegation, we exercise our discretion not
to resolve or remand that claim given that our remedial order already orders TAS to
bargain with SEIU over the effects of its layoff decision. (City of Bellflower (2021)
PERB Decision No. 2770-M, p. 10 [declining to resolve or remand a claim that would
not materially alter the Board’s remedy even were it proven]; County of San Joaquin
(2021) PERB Decision No. 2761-M, p. 83 [same]; City of Glendale (2020) PERB
Decision No. 2694-M, pp. 58-59 [same] (Glendale).)2
FACTUAL AND PROCEDURAL BACKGROUND
TAS is a public school employer within the meaning of EERA section 3540.1,
subdivision (k). TAS operates three charter schools: an elementary and middle school
known as The Accelerated School (TAS K-8), the Accelerated Charter Elementary
School, and the Wallis Annenberg High School. SEIU, an exclusive representative
within the meaning of EERA section 3540.1, subdivision (e), represents employees at
all three schools who are classified as preschool teachers, instructional aides, office
technical employees, and operational support employees.
2 No interference allegations are before us. We express no opinion on these
now-uncontested claims and direct TAS to cease and desist from such conduct in the
future. The below Factual and Procedural Background restates the proposed
decision’s factual findings related to interference only to the extent that such facts are
relevant to SEIU’s exceptions on its retaliation claim.

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I. 	Rodriguez-Guzman’s Employment and Protected Activities
In 2007, TAS hired Rodriguez-Guzman as a Health Office Aide. In that role,
Rodriguez-Guzman administered first aid to ill or injured students, helped them with
prescribed medications, contacted parents about student health issues, and kept
student health records. At that time, TAS had approximately 1,000 enrolled students.
In 2008, Rodriguez-Guzman helped lead SEIU’s organizing drive at TAS, and
thereafter she became an SEIU steward. Subsequently, Rodriguez-Guzman was an
SEIU bargaining team member during three rounds of contract negotiations.
In 2012, Rodriguez-Guzman sought increased pay and responsibility. In
response, TAS created the Coordinator position and promoted Rodriguez-Guzman to
that position. In the Coordinator role, she was responsible for organizing and
monitoring health screenings, conducting site assessments, developing individual
student health care plans, coordinating annual in-service training for staff and
administrators, providing care to students with chronic illnesses, researching health
and medical care issues, and responding to emergency medical situations to “ensur[e]
appropriate immediate medical attention and related follow-up action.” According to
the job description, an employee could fill the Coordinator position without holding any
license other than certificates in first aid and cardio-pulmonary resuscitation.
In July 2018, Rodriguez-Guzman and Roman distributed a bargaining update,
called the Panther Report, on a public sidewalk in front of the TAS main campus.
Rodriguez-Guzman also left copies in an employee breakroom. Williams removed the
flyers from the breakroom, loudly confronted Rodriguez-Guzman and Roman about
their leafletting, and threatened to report them to their supervisors. That confrontation

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led SEIU to file its first charge alleging interference, PERB Case No. LA-CE-6431-E.
In October 2018, Rodriguez-Guzman spoke at a candlelight vigil in support of
SEIU’s bargaining demands. TAS management in attendance included Williams, TAS
Human Resources Manager Asha Marshall, and TAS K-8 Principal Francis Reading.
Before the vigil began, Williams approached Rodriguez-Guzman and other
employees, yelled at them, and threatened to call the police. Williams also openly
photographed Rodriguez-Guzman and other participants with his cell phone.
In November 2018, Williams monitored and surveilled Roman while he was on
campus, thereby impeding Roman and TAS employees from speaking with one
another and discouraging them from engaging in protected activities. This conduct led
SEIU to file its second charge alleging interference, PERB Case No. LA-CE-6473-E.
During a December 2018 public meeting of the TAS Board, Rodriguez-Guzman
complained about Williams’ conduct.
In January 2019, Rodriguez-Guzman supported a strike by a bargaining unit of
TAS teachers represented by a different union.3 Rodriguez-Guzman joined the picket
line and attended press conferences, among other activities supporting the strike. She
also appeared in multiple Los Angeles Times photos about the strike.
In February, TAS removed Williams as CEO. In March, Williams began serving
as TAS’s Head of Governmental Affairs and Fundraising.
II. 	Management’s Actions Adverse to Rodriguez-Guzman
On April 15, TAS placed Rodriguez-Guzman on paid administrative leave,
3 All further dates refer to 2019 unless otherwise noted.

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telling her that it could no longer reasonably accommodate requested work
restrictions.4 Meanwhile, TAS conducted its annual survey in March and April, as part
of seeking stakeholder input to update its local control and accountability plan (LCAP).
When TAS distributed the survey at a TAS K-8 parent meeting, 84 parents returned
completed surveys. LCAP Data Coordinator Simone Barclay reviewed these 84
responses and created a summary. The summary showed that 16 responses
mentioned hiring a nurse, 11 mentioned hiring a psychologist, and 17 mentioned hiring
more fully credentialed teachers. On April 22, Barclay provided the summary to
Principal Reading and Assistant Principal Ashley Zartner.5
TAS Chief Financial Officer Vincent Shih created a working group to consider
whether TAS should hire an RN. The members of the working group were Reading,
Special Education Administrator Randhir Bains, and Office Manager Janet Mixquitl.
4 There is no claim before us that TAS made this decision in retaliation for
activity that EERA protects. However, SEIU supports its retaliatory layoff claim by
alleging that Marshall, at reasonable accommodation meetings on March 26 and
May 1, suggested that TAS managers harbored discriminatory animus against
Rodriguez-Guzman. We consider that evidence post at page 12.
5 Barclay authenticated and laid a foundation for the summary. It is not hearsay
because it falls within the official records exception. (Bellflower Unified School District
(2014) PERB Decision No. 2385, p. 9 (Bellflower USD I).) SEIU nonetheless argues
that the summary is inadmissible because TAS did not introduce the underlying survey
responses. The Evidence Code grants discretion to admit secondary evidence to
prove the content of a writing if the evidence is otherwise admissible, though the trier
of fact should reject such evidence where there is a genuine and material dispute
about the content of the writing (Evid. Code, § 1523, subd. (a)) or admission would be
unfair (id., subd. (b)). The Evidence Code adds further restrictions on oral secondary
evidence (Evid. Code, § 1523), but in this case the secondary evidence was a written
summary. SEIU has not persuaded us to reject the summary under Evidence Code
section 1521, subdivision (a) and/or (b).

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The working group concluded that a full-time RN could improve services and
implement a broad program of health education and services.
TAS management came to believe that an RN could offer services and
education that a non-RN could not, and that even as to those services the Coordinator
had performed in the past, an RN would provide fundamentally upgraded services.
Among the new and higher level services TAS believed an RN could provide were:
meeting the needs of students with disabilities; serving as an information conduit to
and from the medical community; providing vision and hearing screenings; providing
immediate critical care to students experiencing acute illness or injury; training other
staff on medical-related issues; and handling an array of devices such as epinephrine
injection pens and catheters.
In June, Robert French replaced Marshall as the TAS Director of Human
Resources. Shih told French that TAS had decided to hire a nurse and eliminate the
Coordinator position. French thereafter created an RN job description, posted the
opening, and began the selection process. French, Shih, Reading, and Bains took part
in this process.
In July, French e-mailed Rodriguez-Guzman that TAS was eliminating the
Coordinator position, replacing it with an RN position, and laying her off. French
attached to the e-mail a one-page notice of layoff and a severance agreement.
Williams did not take part in the decision to establish an RN position and lay off
Rodriguez-Guzman.
In September and October, SEIU filed its two charges about management’s
actions in creating the RN position, eliminating the Coordinator position, and laying off

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Rodriguez-Guzman. One charge, Case No. LA-CE-6505-E, alleged failure to meet and
negotiate in good faith. The other charge, Case No. LA-CE-6515-E, alleged retaliation
for protected activity.
After OGC issued complaints with respect to all four of SEIU’s charges, the ALJ
consolidated them and held a formal evidentiary hearing over eight nonconsecutive
days between July 2021 and January 2022. The parties then filed post-hearing briefs
and the ALJ issued his proposed decision in August 2022.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
However, if a proposed decision has adequately addressed issues raised by certain
exceptions, the Board need not further analyze those exceptions. (Ibid.) The Board
also need not address alleged errors that would not affect the outcome. (Ibid.) To the
extent an ALJ assesses credibility based upon observing a witness in the act of
testifying, we defer to such assessments unless the record warrants overturning them.
(Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.)
Before turning to the substantive issues, we address a procedural issue.
Revisions to PERB Regulations that took effect in January 2022 direct an excepting
party to file a single, integrated document—which may be in the form of a brief—while
also authorizing a later reply brief focused on responding to new issues that the
responding party raised in its opposition. (PERB Regs. 32300, subds. (b) and (d),
32312, subd. (c).)6 SEIU instead followed a practice permitted under the former
6 PERB Regulations are codified at California Code of Regulations, title 8,

9
version of PERB Regulations, concurrently filing one document entitled “Exceptions to
Proposed Decision” and another entitled “Brief in Support of Exceptions to Proposed
Decision.” We have discretion whether to accept or reject either or both documents.
(Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 14 (Bellflower
USD II) [although the respondent’s exceptions failed to cite to legal authority as
required by PERB Regulations, Board nonetheless “thoroughly analyzed the record
and applicable law” to ensure that its order was correct]; Adelanto Elementary School
District (2019) PERB Decision No. 2630, p. 8 [Board exercised its “discretion to
address [charging party’s] exceptions despite their technical non-compliance with
Regulation 32300”].) Either of SEIU’s two filings alone is sufficiently clear to allow us
to research and resolve this matter, and we have exercised our discretion by
considering only the document filed in the form of a brief.
I. 	Retaliation
To establish a prima facie case of retaliation, a charging party has the burden to
prove, by a preponderance of the evidence, that: (1) one or more employees engaged
in activity protected by a labor relations statute that PERB enforces; (2) the
respondent had knowledge of such protected activity; (3) the respondent took adverse
action against one or more of the employees; and (4) the respondent took the adverse
action “because of” the protected activity, which PERB interprets to mean that the
protected activity was a substantial or motivating cause of the adverse action. (City
and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the
section 31001 et seq.

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charging party meets its burden to prove each of these factors, certain fact patterns
nonetheless allow a respondent the opportunity to prove, by a preponderance of the
evidence, that it would have taken the exact same action even absent protected
activity. (Ibid.) This affirmative defense is most typically available when, even though
the charging party has proven that protected activity was a substantial or motivating
cause of the adverse action, the evidence also reveals a non-discriminatory motivation
for the same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual motive”
cases, the question becomes whether the adverse action would not have occurred
“but for” the protected activity. (Id. at p. 16.)
In this case, no dispute remains as to the first three elements of SEIU’s prima
facie case, as no party filed exceptions to the ALJ’s findings that Rodriguez-Guzman
engaged in protected activity, individuals responsible for Rodriguez-Guzman’s layoff
knew about most of this protected activity, and TAS took adverse action against
Rodriguez-Guzman. Nor does either party explicitly challenge the fourth element,
commonly referred to as the “nexus” factor. The primary liability issue before us
relates to TAS’s affirmative defense, though that issue naturally overlaps with the
nexus question. (State of California (Correctional Health Care Services) (2021) PERB
Decision No. 2760-S, p. 21.)
The ALJ, in concluding that TAS proved it had a non-discriminatory reason for
laying off Rodriguez-Guzman, explained as follows:
“The evidence presented at hearing established that after
evaluating the TAS parent requests, a group of TAS
administrators collaborated and determined the TAS
healthcare services needs required a higher level of
knowledge, skill, and licensure, in large part due to the
increase in the TAS student population. As a result, TAS

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administration made the decision to create and hire a
registered nurse after determining that Rodriguez-
Guzman’s Healthcare Service Coordinator [position] would
be redundant and financially unsound, and, therefore, TAS
made the decision to eliminate the position and lay off
Rodriguez-Guzman.”
In reviewing this conclusion, we consider all facts and circumstances relevant to
motivation. The following factors are the most common means of establishing a
discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in
relation to the employee’s protected conduct; (2) disparate treatment; (3) departure
from established procedures or standards; (4) an inadequate investigation; (5) a
punishment that is disproportionate based on the relevant circumstances; (6) failure to
offer a contemporaneous justification, or offering exaggerated, questionable,
inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity
towards union activists; and (8) any other facts that might demonstrate the employer’s
unlawful motive. (City and County of San Francisco, supra, PERB Decision
No. 2712-M, p. 21.)
Timing of protected activity in relation to an adverse action is not typically
sufficient, by itself, to prove discrimination. (City of Santa Monica (2020) PERB
Decision No. 2635a-M, pp. 45-46.) That is certainly the case here. While it is possible
for an employee to receive a promotion after certain protected activity but then
eventually run into discrimination while engaging in further protected activity, we must
weigh the evidence concerning any such claim. (Id. at pp. 46-47 [if an employee
engages in protected activity for an extended period and the employer only takes
adverse action toward the end of this period, PERB assesses whether animus built
over time, or the employer lacked earlier opportunities to take such action].)

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Here, this assessment turns, in part, on a significant credibility dispute over
alleged statements during March 26 and May 1 accommodation meetings
Rodriguez-Guzman had with Marshall, who was then serving as TAS Human
Resources Manager. According to Rodriguez-Guzman, on March 26 Marshall gave
her a “heads-up” that TAS “administration, meaning principals, executives and the
Board” were discussing ways to “get rid of [her],” including using the parent survey
results. Rodriguez-Guzman asserts that on May 1, Marshall again told her that “they”
are going to use the parent survey results to “get rid of” her. Rodriguez-Guzman also
testified that she told Roman about Marshall’s March 26 statement that same day.
Roman supported Rodriguez-Guzman in general terms, though Roman’s testimony
lacked detail; he recalled hearing that “in the course of labor-management meetings,”
Marshall told Rodriguez-Guzman “to better watch out because they were coming to
get her.” Marshall flatly denied making any of these alleged statements. She further
testified that she was unaware of any TAS plans to separate Rodriguez-Guzman from
employment.
The ALJ credited Marshall over Rodriguez-Guzman and Roman on these
factual disputes. The ALJ found that Marshall’s testimony was clear and precise, and
that as a former employee, she had the opportunity to testify without fear of
repercussion from her employer. Having reviewed the record, we do not disturb the
ALJ’s credibility determination.
In discrediting Rodriguez-Guzman’s critical testimony, the ALJ minimized the
main basis by which SEIU could prevail, particularly given that Williams was not
involved in the layoff or associated decisions. There is no other evidence suggesting

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that Shih appointed the working group for discriminatory reasons, and the record
shows the group spent several months legitimately exploring whether to establish an
RN position. Most importantly, TAS based its eventual decision on legitimate,
nondiscriminatory reasons. Specifically, TAS concluded that student healthcare
services would significantly improve if an RN replaced the unlicensed Coordinator.7
While an employer is liable for discrimination if it exercises a legitimate
management right for a discriminatory reason (County of Lassen (2018) PERB
Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision
No. 1538, pp. 4-5), in this case a preponderance of the evidence shows that TAS
would have reached the same decisions even had Rodriguez-Guzman not engaged in
protected activity. Like the ALJ, we therefore dismiss SEIU’s retaliation claim.
II. 	Bargaining Violation
An employer’s failure to provide an exclusive representative with adequate
notice and an opportunity to bargain is a per se violation of the duty to bargain in good
faith if the decision itself falls within the scope of representation, or if the decision has
reasonably foreseeable effects on terms or conditions of employment. (Regents of the
University of California (2021) PERB Decision No. 2783-H, p. 18; Trustees of the
California State University (2012) PERB Decision No. 2287-H, p. 20.) In the former
instance we refer to the employer as having a “decision bargaining obligation,” while in
7 In its exceptions, SEIU notes that when Barclay summarized 84 parent survey
responses, this represented results from only one of the three TAS schools. While
survey responses from one school do not by themselves prove that TAS acted in a
non-discriminatory manner, these responses tend to show that TAS took parental
input into account in its decision.

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the latter case the employer has an “effects bargaining obligation.” (County of Santa
Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24 (Santa Clara I); County of
Santa Clara (2019) PERB Decision No. 2680-M, p. 12 (Santa Clara II).)8
While TAS now admits it engaged in a bargaining violation, to consider the
appropriate remedy we need to categorize it as either a decision bargaining violation
or an effects bargaining violation. Anaheim Union High School District (1981) PERB
Decision No. 177 (Anaheim) outlines the general test for assessing whether a topic
falls within EERA’s scope of representation.9 However, for certain recurring topics,
PERB follows subject-specific standards that implement the overall scope of
representation test. (City and County of San Francisco (2022) PERB Decision
8 Although an employer engaged in effects negotiations need not bargain over
the policy reasons for its decision, it cannot refuse to bargain over alternatives, as
those alternatives fundamentally impact the employment effects at issue. (Oxnard
Union High School District (2022) PERB Decision No. 2803, p. 51 (Oxnard); County of
Santa Clara (2021) PERB Decision No. 2799-M, p. 27 (Santa Clara III); Anaheim
Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting
proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M,
p. 22 (Sacramento).) Indeed, one purpose of effects bargaining is to permit the
exclusive representative an opportunity to persuade the employer to consider
alternatives that may diminish the impact of the decision on employees. (Oxnard,
supra, PERB Decision No. 2803, p. 52; Santa Clara III, supra, PERB Decision
No. 2799, p. 27.)
9 Under Anaheim, supra, PERB Decision No. 177, a topic falls within the scope
of representation if it is a statutorily-enumerated subject of bargaining or, if: (1) it is
logically and reasonably related to wages, hours or other statutorily enumerated
subjects of bargaining; (2) it is of such concern to management and employees that
conflict is likely to occur, and the mediatory influence of collective bargaining is an
appropriate means for resolving such conflict; and (3) its designation as a negotiable
subject would not significantly abridge the employer's freedom to exercise those
managerial prerogatives (including matters of fundamental policy) that are essential to
achieving its mission. (Id. at pp. 4-5.)

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No. 2846-M, p. 18, fn. 15.) These standards promote consistency and predictability by
obviating the need to “reinvent the wheel” and assess what types of facts are
important each time a subcontracting or transfer of work case arises. (Id. at pp. 18-19,
fn. 15.) Absent such consistent standards, an employer would not know in advance
whether the law requires it to bargain a decision. (Ibid.)
In layoff cases, the overarching rule is that an employer has a decision
bargaining obligation when a layoff is inextricably linked to a bargainable
subcontracting or transfer of work decision, and otherwise the employer has an effects
bargaining obligation. (International Assn. of Fire Fighters, Local 188 v. Public
Employment Relations Bd. (2011) 51 Cal.4th 259, 273-274 & 277 (Richmond Fire
Fighters); Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621-622
(Vallejo); Glendale, supra, PERB Decision No. 2694-M, p. 17, fn. 9; see also id. at
p. 48.) In this case, there is no subcontracting alleged, but SEIU claims TAS
transferred work out of the bargaining unit when it abolished the Coordinator
classification and created a new RN classification. Under Alum Rock Union
Elementary School District (1983) PERB Decision No. 322, an employer must engage
in decision bargaining if creation or abolition of classifications involves transfer of
traditional bargaining unit duties without fundamental changes. (Id. at pp. 10-12.)
SEIU has a colorable argument that TAS transferred out of the unit certain
Coordinator duties, thereby requiring decision bargaining. However, weighing the
evidence and drawing reasonable inferences, we find that in creating the RN job
description, TAS supplemented and upgraded the former Coordinator duties to such a
degree that even the allegedly transferred duties became significantly higher in level

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than they had been as Coordinator duties. (See Santa Clara II, supra, PERB Decision
No. 2680-M, p. 11 [employer had no decision bargaining obligation when it upgraded
its level of protecting the public by replacing a bargaining unit security guard with a
non-unit deputy sheriff].) Given there is no dispute that only an RN could provide the
desired level of service, nor any dispute that RNs fall outside the bargaining unit, TAS
had an effects bargaining obligation rather than a decision bargaining obligation.
TAS no longer disputes that it violated its duty to bargain effects.10 However,
the parties dispute the proper remedy for the bargaining violation.
III. 	Remedy
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the purposes and policies of EERA and the other acts we
enforce. (EERA, §§ 3541.3, subd. (i); 3541.5, 1st par. & subd. (c); Mt. San Antonio
Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d
178, 189.) PERB remedies must serve the dual purposes of compensating for the
harms an unfair practice causes and deterring further violations. (County of San
10 For instance, TAS does not claim it was privileged to implement its changes
before completing effects negotiations based on Compton Community College District
(1989) PERB Decision No. 720, pp. 14-15 (Compton) [employer has the right to
implement changes before completing effects negotiations if: (1) implementation date
is based on 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 decision; (2) employer gives sufficient advance notice of
the decision and implementation date to allow for meaningful negotiations prior to
implementation; and (3) employer negotiates in good faith prior to and after
implementation].) Nothing in this decision precludes an employer from asserting a
Compton defense, including in circumstances where the Education Code sets a
deadline by which layoffs must occur.

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Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068 (San
Joaquin); Bellflower USD II, PERB Decision No. 2544a, p. 26.) While remedial orders
must rely to a degree on estimates, that is preferable to allowing uncertainty caused
by unlawful conduct to leave an unfair practice without any effective remedy.
(Bellflower Unified School District (2021) PERB Decision No. 2796, p. 20 (Bellflower
USD III); Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13
(Lodi); City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.)
In remedying effects bargaining violations, PERB recognizes that they are
equally harmful as decision bargaining violations, as both disrupt and destabilize
employer-employee relations by creating an imbalance in the power between
management and employee organizations. (Santa Clara I, supra, PERB Decision
No. 2321-M, pp. 23-24.) In other words, the effects bargaining obligation is not an
inferior duty. (Id. at p. 24; Santa Clara II, supra, PERB Decision No. 2680-M, p. 13.)
TAS concedes that, because it failed to provide SEIU with notice and an
opportunity to bargain effects, it owes Rodriguez-Guzman “backpay from the date of
her separation in 2019 until TAS has satisfied its obligations under EERA regarding
bargaining the effects of the layoff and the decision to eliminate the Health Services
Coordinator position.” The parties dispute only whether the ALJ erred in not reinstating
Rodriguez-Guzman. Notably, however, resolving this dispute goes to the heart of how
PERB remedies effects bargaining violations, requiring us to integrate and update
disparate precedent covering reinstatement and back pay.11
11 We use “back pay” as a shorthand for all the forms of make-whole relief
discussed in Bellflower USD II, supra, PERB Decision No. 2544a.

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A. 	Reinstatement
In arguing for reinstatement, SEIU relies in significant part on precedent where
the employer had a decision bargaining obligation because layoffs were inextricably
intertwined with a decision to assign non-unit employees or subcontractors work that
was substantially similar to work that bargaining unit employees traditionally
performed. (See, e.g., Regents of the University of California (Berkeley) (2018) PERB
Decision No. 2610-H, pp. 35 & 94-96 [reinstating laid off youth music instructors where
program continued via grant to a non-University entity that amounted to
subcontracting, and holding that even a decision affecting “the merits, necessity or
organization” of a service is subject to decision bargaining if it is “intertwined with a
negotiable decision”]; Sacramento, supra, PERB Decision No. 2351-M, pp. 19-20 & 49
[ordering reinstatement where all that changed as a result of city’s decision to transfer
work was the identity of the employees assigned to perform the duties, in contrast to
cases in which an employer lays off employees because it is changing its level of
services].) These decisions require no clarification. There is no question that where an
employer does not fulfill its decision bargaining obligation, PERB’s standard remedy
includes rescission and make whole relief. (Lodi, supra, PERB Decision No. 2723,
p. 20; see also County of Kern & Kern County Hospital Authority (2019) PERB
Decision No. 2659-M, pp. 16-19 & 26-27.)
Where PERB orders reinstatement, back pay ends on the reinstatement date.
The employer may then provide the union with notice and an opportunity to bargain
over a new, prospective decision, meaning it may eventually effect its desired change
by reaching an agreement or by imposing its last, best, and final offer after bargaining

19
to a good faith impasse and participating in good faith in all required and agreed upon
impasse procedures. Because reinstated employees are back at work throughout such
negotiations, neither party must bargain from a position of unlawful advantage or
disadvantage. (Bellflower USD II, supra, PERB Decision No. 2544a, pp. 21, 23-24
[reinstatement is a critical part of restoring the status quo, which is necessary before
parties can engage in fair negotiations]; County of Merced (2020) PERB Decision
No. 2740-M, pp. 21-23 [if employer fails to rescind its unlawful decision and restore
the status quo, good faith decision bargaining is impossible].)
If an employer has no decision bargaining obligation but violates its duty to
bargain effects, PERB does not necessarily direct the employer to rescind its
underlying decision.12 (Santa Clara III, supra, PERB Decision No. 2799-M, pp. 28-29.)
As explained below, however, if PERB does not order reinstatement or other forms of
rescission for an effects bargaining violation, full retroactive back pay may be
necessary to provide adequate compensation, deterrence, and a level field for fair
effects negotiations.
B. 	Back Pay
To remedy an effects bargaining obligation, PERB generally directs the
offending employer to provide back pay from the first date that employees began to
experience harm until the earliest of: (1) the date the parties reach an agreement,
typically as part of complying with PERB’s effects bargaining order; (2) the date the
parties reach a good faith final impasse, including exhaustion of any required or
12 However, nothing prevents the employer from cutting off its back pay liability
by voluntarily offering reinstatement before or during effects negotiations.

20
agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects
negotiations in good faith. (Santa Clara III, supra, PERB Decision No. 2799-M, p. 28;
County of Ventura (2021) PERB Decision No. 2758-M, pp. 53 & 56; Region 2 Court
Interpreter Employment Relations Committee & California Superior Courts of Region 2
(2020) PERB Decision No. 2701-I, p. 58; Santa Clara II, supra, PERB Decision
No. 2680-M, p. 14.)
However, this rule requires clarification to explain the extent to which California
public sector labor law jurisprudence should incorporate the shorter back pay remedy
that the federal National Labor Relations Board (NLRB) devised in Transmarine
Navigation Corp. (1968) 170 NLRB 389 (Transmarine). There, the employer closed a
facility while refusing to bargain over foreseeable effects on terms and conditions of
employment. (Id. at p. 389.) Because the employer could close its plant for economic
reasons without bargaining over the decision, the NLRB declined to order back pay
retroactive to the layoff date, instead ordering that back pay should begin when the
parties start effects negotiations and continue for the length of those negotiations or
for two weeks, whichever is greater. (Id. at p. 390.) Transmarine, which certain older
PERB decisions have cited with approval, is therefore incongruous with PERB’s
modern back pay standard for effects bargaining violations.
In the below discussion, we harmonize our precedent, explaining that a
Transmarine remedy effectuates the purposes of California public sector labor law
only in limited circumstances: if the effects negotiations arose because of an
employer’s decision to close a facility or cease offering a service. To show why this is
the case, we analyze precedent and discuss substantial reasons why Transmarine

21
should not extend beyond facility closures and similar decisions. We also overrule, in
part, eight older PERB decisions in which the Board extended Transmarine beyond its
proper scope.
In Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848
(Highland Ranch), the California Supreme Court noted that the Agricultural Labor
Relations Board (ALRB) must follow applicable NLRB precedent (id. at p. 856), and
the Court affirmed the ALRB’s Transmarine remedy for an employer’s failure to
bargain the effects of its decision to sell its business (id. at pp. 862-864). The Court
highlighted the Transmarine remedy’s provenance in federal “cases in which an
employer failed to bargain with a union over the effects of its decision to go out of
business.” (Id. at p. 864; see also, e.g., Vallejo, supra, 12 Cal.3d at p. 616, fn. 8 [under
Transmarine, an employer has the right to “terminate its business and reinvest its
capital in a different enterprise”].) Although Highland Ranch is not controlling
precedent here, we find it persuasive in the limited context of employer decisions to
sell or close a facility or equivalent decisions to cease offering a service.13
13 Highland Ranch was correct in noting that the ALRB must follow applicable
NLRB precedent. (See Lab. Code, § 1148.) In contrast, California public sector labor
relations precedent frequently protects employee and union rights to a greater degree
than does federal precedent governing private sector labor relations, and PERB
considers federal precedent only for its potential persuasive value. (Operating
Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9,
fn. 10; City of Santa Monica, supra, PERB Decision No. 2635a-M, p. 47, fn. 16; City of
Commerce (2018) PERB Decision No, 2602-M, pp. 9-11; see also San Joaquin,
supra, 82 Cal.App.5th at p. 1073 [federal authority is merely persuasive]; Social
Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382,
391 [when interpreting California public sector labor relations laws, federal precedent
is a “useful starting point,” but it does “not necessarily establish the limits of California
public employees’ representational rights”]; County of San Joaquin, supra, PERB

22
Later precedent interpreting Highland Ranch further persuades us to this view.
First, in El Dorado County Deputy Sheriff’s Assn. v. County of El Dorado (2016) 244
Cal.App.4th 950 (El Dorado), the court explained that in Highland Ranch:
“[T]he Supreme Court held that the proper remedy for an
employer's failure to negotiate with a labor union before
shutting down its business (by selling the ranch) was to not
only bargain over the effects of the shutdown but also to
pay the employees during that bargaining period in order to
restore some of the bargaining power lost when the
employer unilaterally shut down. This creative remedy was
necessary because the employer’s action could not be
undone, not because the employer had exercised some
inalienable management right.”
(Id. at p. 964 [citations omitted].) El Dorado, therefore, supports limiting Highland
Ranch to a narrow range of cases.
The same is true of Boling v. Public Employment Relations Bd. (2019)
33 Cal.App.5th 376 (Boling), where a city did not fulfill its bargaining obligation before
the mayor worked with others to place a pension initiative on the ballot. (Id. at p. 381.)
The court, noting that the initiative “could not be undone” by PERB because only a
later quo warranto proceeding could invalidate the initiative, looked to effects
bargaining cases to consider the proper remedy. (Id. at pp. 388-389.) Nonetheless,
the court notably did not order a Transmarine-type remedy. Rather, the court ordered
full make-whole relief from the first date of injury until the city fulfilled its bargaining
Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19 [considering private sector labor law
precedent for its persuasive value while noting certain differences in California public
sector labor law precedent]; City of Bellflower (2020) PERB Order No. Ad-480-M,
p. 11 [both “statutory differences and distinct principles relevant to agencies serving
the public have frequently led the Board to craft sui generis precedent”].)

23
obligation, exactly as we do here. (Id. at p. 389 [measuring damages by the difference
“between the compensation, including retirement benefits, the employees would have
received before the Initiative became effective and the compensation the employees
received after the Initiative became effective”].) As the court explained, this remedy is
“compensatory in that it reimburses employees for the losses they incur as a result of
delays in the collective bargaining process,” and it “reduces the employer’s financial
incentive for refusing to bargain.” (Ibid., internal quotation marks omitted.)
Beyond the above precedent, there are even more important reasons why it is
unsuitable to expand Transmarine by applying “Transmarine-type” remedies in a
broad range of cases, and why we therefore endorse the middle ground approach that
TAS proposes—full back pay from the date of layoff through the end of effects
bargaining, but no reinstatement. We explain the most significant of these reasons.
First, Transmarine arose in a private sector framework in which an employer
must engage in effects bargaining when closing part of its business or changing its
nature or scope, but otherwise generally must engage in decision bargaining over
layoffs. (Pan American Grain Co., Inc. v. NLRB (1st Cir. 2009) 558 F.3d 22, 27-28
(Pan American Grain); Holmes & Narver (1992) 309 NLRB 146, 147 [decision
bargaining required before employer decides “to continue doing the same work with
essentially the same technology, but to do it with fewer employees by virtue of giving
some of the employees more work assignments”].) When a private sector employer
violates that decision bargaining duty, the NLRB grants reinstatement and full back
pay rather than a Transmarine remedy. (Pan American Grain, supra, 558 F.3d at
pp. 28-29 & fn. 8 [rejecting employer’s argument that the court should extend

24
Transmarine to remedy the employer’s failure to bargain regarding layoffs]; NLRB
v. Sandpiper Convalescent Center (4th Cir. 1987) 824 F.2d 318, 321-322 & 324
[reinstatement and full back pay appropriate for failure to bargain over layoffs, since
employer decision did not involve closing down any part of its business or an
equivalent change in its nature or scope]; Lapeer Foundry & Mach. (1988) 289 NLRB
952, 955 [to remedy employer’s failure to bargain over layoffs, “backpay liability shall
run from the date of the layoffs until the date the employees are reinstated to their
same or substantially equivalent positions”].)
In eight PERB decisions issued between 1982 and 1997, the Board
transplanted the private sector’s Transmarine remedy into circumstances that did not
involve closing a facility or any like decision, without acknowledging the significant
expansion.14 The primary means of this expansion was the fact that in the California
public sector, bargaining related to layoffs occurs as part of effects negotiations,
unless the layoffs are inextricably intertwined with subcontracting or transfer of work.
(See discussion ante at pp. 15 & 18.) This difference between the private sector and
public sector is real but not titanic, because a public sector union engaged in effects
14 The eight decisions are: South Bay Union School District Board of Trustees
(1982) PERB Decision No. 207a, pp. 3-4 (South Bay); Solano County Community
College District (1982) PERB Decision No. 219, pp. 17-18 (Solano); Oakland Unified
School District (1983) PERB Decision No. 326, pp. 46-47 (Oakland); County of Kern
(1983) PERB Decision No. 337, p. 14 (Kern); Mt. Diablo Unified School District (1983)
PERB Decision No. 373, pp. 67-71 (Mt. Diablo I); Mt. Diablo Unified School District
(1984) PERB Decision No. 373b, pp. 25-26 (Mt. Diablo II); Placentia Unified School
District (1986) PERB Decision No. 595, p. 11 & adopting proposed decision at pp. 26-
28 (Placentia); and Regents of the University of California (Lawrence Livermore
National Laboratory) (1997) PERB Decision No. 1221-H, p. 4 & adopting proposed
decision at pp. 32-33 (Livermore).

25
negotiations related to layoffs has the right to bargain over most topics that a private
sector union may negotiate in decision bargaining. (Richmond Fire Fighters, supra,
51 Cal.4th at pp. 276-277; see also id. at pp. 272-273 [relying heavily on private sector
labor law principles].)
Richmond Fire Fighters left no doubt that public sector employers must honor
the duty to engage in effects bargaining in layoff cases, while leaving open what
remedy is proper when an employer violates this duty. It is PERB’s role to exercise its
discretion to adopt remedies reflecting the nuanced differences between public sector
and private sector labor law. (San Joaquin, supra, 82 Cal.App.5th at pp. 1073 &
1086-1087.) Given the unique nature of public sector labor law, we hold that an effects
bargaining remedy does not necessarily include reinstatement, even in a layoff case
for which the NLRB would grant reinstatement. But it is injudicious to adopt a
Transmarine remedy (and thereby order neither reinstatement nor retroactive back
pay) in a broad range of cases for which the remedy was not designed, as doing so
eviscerates the purposes of California labor law.
To understand why a different rule is proper for effects bargaining violations
involving a facility closure or decision to cease offering a public service, it is important
to consider, first, that a union cannot meaningfully bargain over most effects (including
the timing, number, and identity of employees subject to layoff) unless negotiations
occur before the employer implements its layoffs. (First Nat. Maintenance Corp.
v. NLRB (1981) 452 U.S. 666, 681-682 [“[B]argaining over the effects of a decision
must be conducted in a meaningful manner at a meaningful time”]; Sacramento,
supra, PERB Decision No. 2351-M, pp. 29 & 40 [same].) Thus, when we issue merely

26
a Transmarine-type remedy years after a layoff, we are unable to provide the union
with a real bargaining opportunity, and we effectively assume the parties would not
have reached a compromise changing the number or identity of bargaining unit
employees subject to layoff. We are willing to risk that problematic assumption where
the employer has closed a facility or ceased offering a service, since
contemporaneous negotiations in those instances have the least likelihood of altering
a planned layoff. We therefore continue to endorse a Transmarine remedy in such
circumstances. (See, e.g., Bellflower USD I, supra, PERB Decision No. 2385, pp. 1
& 12-14 [school district decided to close a school and lay off employees as a result].)
Timely negotiations are important in those circumstances, too, meaning that a
Transmarine remedy is far from perfect even in cases involving a facility closure,
especially because it inadequately deters further violations. Nonetheless, to lessen the
likelihood that we order an employer to do more than it would have done had it
bargained in good faith, we leave Transmarine undisturbed in such cases.
In contrast, when an employer’s effects bargaining obligation does not arise
from a decision to close a facility or cease offering a service, contemporaneous good
faith negotiations have a higher likelihood of effecting change in the employer’s plan,
particularly because a union can offer meaningful concessions and compromises that
it cannot offer years after the fact in the wake of a PERB remedial order. Indeed, if an
employer has decided to institute a layoff but is neither closing a facility nor ceasing a
service, timely negotiations allow economic concessions to be offered in exchange for
reduced layoffs, as well as an opportunity to convince the employer to lay off more
unrepresented supervisors and fewer unit employees. It is therefore more uncertain in

27
such cases whether contemporaneous bargaining would have led to more or different
employees being retained.
As noted at page 17 ante, uncertainty as to what would have occurred
contemporaneously, when caused by a wrongdoer’s unlawful conduct, warrants
placing the risk on the wrongdoer rather than the innocent. (Bellflower USD III, supra,
PERB Decision No. 2796, p. 20.) Therefore, when an employer has neither closed a
facility nor ceased offering a service, a Transmarine-type remedy does not adequately
deter violations, improperly saddles innocent employees with the downside risk of
uncertainty, and insufficiently compensates them for having lost the opportunity to
bargain at a meaningful time.
Here, for instance, a Transmarine-type remedy would assume that negotiations
could not possibly have resulted in a middle ground such as: TAS hiring only a
part-time RN; or finding room to keep the Coordinator at a part-time or full-time level
while perhaps adding other non-health care duties to the Coordinator position; or
retaining Rodriguez-Guzman while she worked toward an RN license. We cannot
assume the outcome of such negotiations, and a Transmarine-type remedy would
improperly do so by offering only a short amount of back pay years later, long after the
layoff and associated changes are complete.
Sacramento, supra, PERB Decision No. 2351-M is in accord, noting how critical
it is to allow meaningful, contemporaneous discussion of alternatives irrespective of
whether the employer must bargain over the decision or the effects:
“Although alternatives to layoffs are analyzed as ‘effects’ of
the decision to layoff, PERB has similarly recognized that
alternatives to layoffs, such as concessions in wages or
benefits, are also appropriate matters for collective

28
bargaining. Whether in situations where the underlying
decision is itself negotiable, such as a transfer of work from
one unit to another, or in situations where only the ‘effects’
of a layoff decision are negotiable, the rationale is
essentially the same: because of the exclusive
representative’s unique ability to offer concessions in
employee wages or benefits, such matters are at least as
amenable to collective bargaining, and quite likely more
amenable, than a ‘lack of work’ situation involving an
elimination, reduction or change in the kind of services
offered.”
(Id. at p. 22, citation omitted.)
Moreover, outside of circumstances where an employer closes a facility or
ceases to offer a service, it is often a close call whether decision bargaining or effects
bargaining is required. As noted at pages 15-16 ante, the decision to transfer
Coordinator duties to an RN while also upgrading those duties could plausibly be
framed as triggering either decision bargaining or effects bargaining. The closeness of
this determination further supports the notion that while an effects remedy need not
include reinstatement, it should at least include retroactive back pay in those
circumstances where the employer has violated its bargaining duty but has neither
closed a facility nor ceased offering a service.
Today’s holding is also necessary to vindicate the principle that effects
bargaining violations and decision bargaining violations are equally harmful. While
there may be less need for deterrence when an employer has decided to close a
facility or cease offering a service, if employers can commit effects bargaining
violations with relative impunity in garden variety cases such as this one, then the
consequence is to make the effects bargaining duty an inferior one.
Notably, the Board has acknowledged the weakness inherent in a

29
Transmarine-type remedy. (See, e.g., Kern, supra, PERB Decision No. 337, adopting
proposed decision at p. 16 [“The question of whether a remedy in a case involving
failure to negotiate the effects of layoff should include a restoration to employment
order with a retroactive back pay award is a difficult one” because “bargaining over the
effects of a decision must be conducted in a meaningful manner at a meaningful
time”].) One reason prior Board precedent refrained from addressing this weakness is
because those decisions did not consider any middle ground between two
dichotomous options: (1) back pay retroactive to the date of harm, plus reinstatement,
for all effects bargaining violations no matter the type of decision at issue; or (2) the
Transmarine formulation—no reinstatement and back pay commencing only after the
parties begin effects negotiations—for all effects bargaining violations no matter the
type of decision at issue.
This view ignored two middle ground possibilities. First, it ignored that PERB
need not remedy all effects bargaining violations in the same manner. Second, it
ignored that reinstatement and retroactive back pay need not go hand in hand.
(Bellflower USD II, supra, PERB Decision No. 2544a, p. 33, fn. 16 [reinstatement and
back pay are separate remedies]; County of Riverside (2013) PERB Decision
No. 2336-M, p. 16 [same].) In this case, we have considered the full range of
possibilities and adopted two compromises. One compromise is that we endorse
Transmarine-type remedies when the employer’s violation arose from closing a facility
or ceasing a service, but not otherwise. Next, we order full back pay, typically without
reinstatement in those instances where Transmarine does not effectuate the law’s
purposes. Such full back pay is the minimum necessary to deter violations and

30
compensate for the loss of a chance to bargain at a meaningful time, which is
exceedingly difficult to restore later. Withholding reinstatement, however, eases the
employer’s ability to promptly rectify its failure to bargain effects without having to fully
restore the status quo.
We therefore overrule those portions of the Board’s older decisions that
improvidently extended Transmarine by adopting Transmarine-type remedies even
though the employer neither closed a facility nor ceased offering a service. We have
identified eight decisions falling within this category. It is possible that isolated other
decisions exist in the same category—for instance, decisions that did not explicitly cite
Transmarine. At present, however, the only decisions overruled, in part, are the
following: South Bay, supra, PERB Decision No. 207a, pp. 3-4; Solano, supra, PERB
Decision No. 219, pp. 17-18;15 Oakland, supra, PERB Decision No. 326, pp. 46-47;16
Kern, supra, PERB Decision No. 337, p. 14; Mt. Diablo I, supra, PERB Decision
No. 373, pp. 67-71; Mt. Diablo II, supra, PERB Decision No. 373b, pp. 25-26;
Placentia, supra, PERB Decision No. 595, p. 11 & adopting proposed decision at
pp. 26-28; and Livermore, supra, PERB Decision No. 1221-H, p. 4 & adopting
15 In Solano, supra, PERB Decision No. 219, the employer initially intended to
cease offering certain services, which would have made a Transmarine remedy
proper, but it ended up continuing the services in question.
16 While we overrule Oakland’s decision to adopt a Transmarine-type remedy,
we note and agree with Oakland’s acknowledgement that “nothing in the language of
EERA” prevents the Board from ordering both reinstatement and retroactive back pay
for an effects bargaining violation. (Oakland, supra, PERB Decision No. 326, p. 45
[reinstatement and retroactive back pay “may be the appropriate remedy for the
employer’s failure to negotiate the decision itself or the failure to negotiate the effects
of that decision provided that so ordering will effectuate the purposes of EERA”].)

31
proposed decision at pp. 32-33.17
In sum, for most effects bargaining violations, back pay runs from the date any
impacted employee began to experience harm until earliest of: (1) the date the parties
reach an agreement, typically as part of complying with PERB’s effects bargaining
order; (2) the date the parties reach a good faith final impasse, including exhaustion of
any required or agreed upon post-impasse procedures; or (3) the date the union fails
to pursue effects negotiations in good faith. In contrast, a Transmarine remedy is
proper where an employer has violated its duty to bargain over the effects of closing a
facility or ceasing a service.18
For the above reasons, TAS need not reinstate Rodriguez-Guzman, but it owes
her back compensation from the date of her separation in 2019 until TAS has satisfied
its effects bargaining obligations.
17 While Livermore found that the employer had only an effects bargaining
obligation, the facts could have equally been framed as triggering a decision
bargaining obligation because the employer transferred duties partially within the unit
(see Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4)
and partially out of the unit. (Livermore, supra, PERB Decision No. 1221-H, adopting
proposed decision at p. 14.)
18 Although TAS asserted contractual waiver below, the ALJ rejected that
defense and TAS filed no exceptions. We express no opinion as to the merits of such
a defense based on the parties’ contract. Nor do we express any opinion whether a
Transmarine-type remedy may be proper if an employer proves that a partial
contractual waiver limited the extent of its effects bargaining violation. We therefore do
not consider, for instance, whether Long Beach Community College District (2008)
PERB Decision No. 1941 was correct in determining that: (1) a union contractually
waived its right to bargain over layoff decisions, effects of layoffs, and subcontracting
decisions, but not over effects of subcontracting (id. at pp. 18-19); and (2) a
Transmarine-type remedy was proper (id. at p. 22; Long Beach Community College
District (2009) PERB Order No. Ad-379, p. 2).

32
ORDER
Based on the foregoing and the entire record in this case, the Public
Employment Relations Board (PERB) finds that The Accelerated Schools (TAS)
violated the Educational Employment Relations Act (EERA), Government Code
section 3543.5, subdivisions (a), (b) and (c), by: (1) unlawfully interfering with
protected rights when TAS Chief Executive Officer Johnathan Williams threatened
bargaining unit member and Service Employees International Union, Local 99 (SEIU)
chief steward Hilda Rodriguez-Guzman and SEIU organizer Jorge Roman for
leafletting, and separately interfered with protected activity when Williams monitored
and surveilled Roman while he attempted to meet with employees; (2) failing to afford
SEIU adequate notice and an opportunity to meet and negotiate regarding reasonably
foreseeable effects on terms and conditions of employment before eliminating the
Health Services Coordinator position, laying off the incumbent, and creating an
unrepresented Registered Nurse (RN) position encompassing both the Coordinator
role and higher-level health care duties. This conduct also interfered with protected
employee and union rights. All other allegations are hereby DISMISSED.
Pursuant to Government Code section 3541.3, it is hereby ORDERED that
TAS, its officials, and its other representatives shall:
A. CEASE AND DESIST FROM:
1. Implementing decisions without first affording SEIU adequate advance
notice and an opportunity to meet and negotiate over reasonably foreseeable effects
on terms and conditions of employment.
2. Threatening employees for engaging in protected activity, monitoring

33
or surveilling such activity, or otherwise interfering with employee rights that EERA
protects.
3. Denying SEIU its rights guaranteed by EERA.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE
PURPOSES OF EERA:
1. Upon SEIU’s request, meet and negotiate over the effects on terms
and conditions of employment of eliminating the Health Services Coordinator position,
laying off the incumbent, and creating an unrepresented RN position encompassing
both the Coordinator role and higher-level health care duties.
2. Make Rodriguez-Guzman whole for all losses incurred, plus interest at
a rate of seven percent per year, from the date of her layoff until the earliest of: (1) the
date the parties reach an agreement on the effects of eliminating the Health Services
Coordinator position, laying off the incumbent, and creating an unrepresented RN
position encompassing both the Coordinator role and higher-level health care duties;
(2) the date the parties reach a good faith impasse and exhaust in good faith the
negotiating and impasse procedures prescribed by EERA; or (3) the date SEIU fails to
request negotiations or fails to bargain in good faith.
3. Within 10 workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to SEIU-represented
employees at TAS are posted, copies of the Notice attached hereto as an Appendix.
An authorized agent of TAS must sign the Notice, indicating that TAS will fulfill the
terms of this Order. TAS shall maintain the posting for a period of 30 consecutive
workdays and distribute it by electronic message, intranet, internet site, and other
electronic means TAS uses to communicate with SEIU-represented employees. TAS

34
shall take reasonable steps to ensure that the Notice is not reduced in size, altered,
defaced, or covered with any other material.19
4. Provide PERB’s General Counsel, or the General Counsel’s designee,
with written notification of all actions taken to comply with this Order, as well as any
such further reports as the General Counsel or designee may direct; and concurrently
serve SEIU with all such notifications and reports.
Chair Banks and Member Paulson joined in this Decision.
19 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to employees with whom it does not communicate through electronic means.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CE-6431-E, LA-CE-6473-E,
LA-CE-6505-E, and LA-CE-6515-E, Service Employees International Union, Local 99
v. The Accelerated Schools, in which all parties had the right to participate, the Public
Employment Relations Board found that the The Accelerated Schools (TAS) violated
the Educational Employment Relations Act (EERA), Government Code section
3543.5, subdivisions (a), (b), and (c), by: (1) unlawfully interfering with protected rights
when TAS Chief Executive Officer Johnathan Williams threatened bargaining unit
member and Service Employees International Union, Local 99 (SEIU) chief steward
Hilda Rodriguez-Guzman and SEIU organizer Jorge Roman for leafletting, and
separately interfered with protected activity when Williams monitored and surveilled
Roman while he attempted to meet with employees; (2) failing to afford SEIU
adequate notice and an opportunity to meet and negotiate regarding reasonably
foreseeable effects on terms and conditions of employment before eliminating the
Health Services Coordinator position, laying off the incumbent, and creating an
unrepresented Registered Nurse (RN) position encompassing both the Coordinator
role and higher-level health care duties. This conduct also interfered with protected
employee and union rights.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. Implementing decisions without first affording SEIU adequate advance
notice and an opportunity to meet and negotiate over reasonably foreseeable effects
on terms and conditions of employment.
2. Threatening employees for engaging in protected activity, monitoring
or surveilling such activity, or otherwise interfering with employee rights that EERA
protects.
3. Denying SEIU its rights guaranteed by EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. Upon SEIU’s request, meet and negotiate over the effects on terms
and conditions of eliminating the Health Services Coordinator position, laying off the

2
incumbent, and creating an unrepresented RN position encompassing both the
Coordinator role and higher-level health care duties.
2. Make Rodriguez-Guzman whole for all losses incurred, plus interest at
a rate of seven percent per year, from the date of her layoff until the earliest of: (1) the
date the parties reach an agreement on the effects of eliminating the Health Services
Coordinator position, laying off the incumbent, and creating an unrepresented RN
position encompassing both the Coordinator role and higher-level health care duties;
(2) the date the parties reach a good faith impasse and exhaust in good faith the
negotiating and impasse procedures prescribed by EERA; or (3) the date SEIU fails to
request negotiations or fails to bargain in good faith.
Dated: _____________________ 	THE ACCELERATED SCHOOLS
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.