Decision 1339S – State of California (Department of Corrections)
Decision Date: August 3, 1999
Decision Type: PERB Decision
Perc Vol: 23
Perc Index: 30146
401.01000 – In General; Prima Facie Case.
In cases involving allegedly discriminatory access rules, the Board analyzes the employer's rule as a potential interference with employee exercise of protected rights. In an interference case, it is not necessary for the charging party to show that the respondent acted with an unlawful motivation. (Regents of the University of California (1983) PERB Decision No. 305-H.
401.04000 – Access – Union Right
The text of the Dills Act does not explicitly grant employee organizations a right of access to the employer's property for purposes of communication with members. Even absent statutory authorization, it is well established in federal cases that employee organizations may in some circumstances gain access rights to an employer's property. (NLRB v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [38 LRRM 2001].) Such access rights become available in two circumstances: (1) when the usual means of communication are ineffective or unreasonably difficult, or (2) when the employer's prohibition on access is discriminatory on its face or as applied. This rule has been adopted by the PERB. (See State of California (Department of Transportation, et al.) (1981) PERB Decision No. 159b-S; Sierra Sands Unified School District (1993) PERB Decision No. 977; State of California (Department of Personnel Administration, et al.) (1998) PERB Decision No. 1279-S.) The burden of proof in meeting this requirement is on the charging party. Even though union had other means of communication, lack of a private meeting room at least slightly hinders it in doing so and denial of the room is a violation.
404.04000 – Meetings
The Department's prohibition of union access to the IST classrooms meets at least the "slight" harm element of the Carlsbad test.
505.11000 – Legitimate Business Purpose/Business Necessity
Failure of employer to "invite" union as opposed to other outside groups to use the meeting room is not a valid defense to a claim of interference based on discriminatory denial of access.