Decision 1508E – San Marcos Unified School District
LA-CE-4214-E
Decision Date: January 16, 2003
Decision Type: PERB Decision
Description: The Board partially reversed an ALJ determination. The ALJ found that the District did not violate EERA when it threatened to discipline teachers, and remove their collective bargaining rights for engaging in labor-related, non-disruptive informational picketing outside a school board meeting. The ALJ reasoned that language in the collective bargaining agreement waiving the right to engage in “picketing…or other interference with district operations” waived any rights to any form of picketing, including the conduct at issue in this case. The ALJ found that the District did violate EERA section 3543.5(a) when it threatened to suspend dues deductions, but that the same conduct did not violate section 3543.5(b).
Disposition: Reversed in part: The Board found that the right to engage in non-disruptive informational picketing is protected activity under EERA and that inclusion of the word “picketing” in the contract language, examined alone and in textual and historical context, did not constitute a clear and unmistakable waiver of this fundamental right. Based on that determination, the Board held that the District’s conduct violated EERA section 3543.5(a), (b), and (c) by interfering with employees exercise of EERA-protected rights, threatening to impose reprisals for protected activity, and unilaterally changing the grounds for employee discipline. The Board affirmed the ALJ’s finding that the District violated section 3543.5(a) by threatening to cease dues deductions and, reversing the ALJ, found that the same conduct violated section 3543.5(b).
Perc Vol: 27
Perc Index: 27
Decision Headnotes
300.15000 – Speech
Non-disruptive informational picketing is protected activity under EERA; it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. The Board need not and does not speculate regarding the status or definition of other forms of picketing under EERA.
300.17000 – Other
Non-disruptive informational picketing is protected activity under EERA; it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. The Board need not and does not speculate regarding the status or definition of other forms of picketing under EERA.
302.01000 – In General
Non-disruptive informational picketing is protected activity under EERA; it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. The Board need not and does not speculate regarding the status or definition of other forms of picketing under EERA.
400.01000 – In General; Standards
District’s threat to discontinue dues deductions unlawfully interfered with both employee rights and union rights.
405.01000 – In General
District unlawfully interfered with protected rights by threatening to discipline employees who engaged in non-disruptive informational picketing. District’s threat to discontinue dues deductions unlawfully interfered with both employee rights and union rights.
405.02000 – Express or Implied Threats
District unlawfully interfered with protected rights by threatening to discipline employees who engaged in non-disruptive informational picketing. District’s threat to discontinue dues deductions unlawfully interfered with both employee rights and union rights.
406.01000 – In General
District unlawfully interfered with protected rights by threatening to discipline employees who engaged in non-disruptive informational picketing.
409.05000 – Union Consent or Waiver
Contract provision prohibiting “picketing,” without differentiating between forms of picketing, is insufficient to constitute a clear and unmistakable waiver if the EERA-protected right to engage in non-disruptive informational picketing. Statutorily and constitutionally protected rights – such as the right to engage in non-disruptive informational picketing, can only be divested, by employees or their exclusive representatives, through a “clear and unmistakable waiver.”
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Contract provision prohibiting “picketing,” without differentiating between forms of picketing, is insufficient to constitute a clear and unmistakable waiver if the EERA-protected right to engage in non-disruptive informational picketing. Statutorily and constitutionally protected rights – such as the right to engage in non-disruptive informational picketing, can only be divested, by employees or their exclusive representatives, through a “clear and unmistakable waiver.”
1402.02000 – Union’s Waiver of Employee or Organizational Rights
Contract provision prohibiting “picketing,” without differentiating between forms of picketing, is insufficient to constitute a clear and unmistakable waiver if the EERA-protected right to engage in non-disruptive informational picketing. Statutorily and constitutionally protected rights – such as the right to engage in non-disruptive informational picketing, can only be divested, by employees or their exclusive representatives, through a “clear and unmistakable waiver.”
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
Contract provision prohibiting “picketing,” without differentiating between forms of picketing, is insufficient to constitute a clear and unmistakable waiver if the EERA-protected right to engage in non-disruptive informational picketing. Statutorily and constitutionally protected rights – such as the right to engage in non-disruptive informational picketing, can only be divested, by employees or their exclusive representatives, through a “clear and unmistakable waiver.”