Decision 1738M – City of San Diego

LA-CE-48-M

Decision Date: January 20, 2005

Decision Type: PERB Decision

Description:  MMBA violation alleged where city denied a non-agency fee payer pre-tax dollars to enroll in specific employee group dental and eye-care plans exclusively for union members.

Disposition:  MMBA violation found where city denied a non-agency fee payer the ability to use pre-tax dollars to enroll in union-only group dental and eye-care plans.

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Perc Vol: 29
Perc Index: 57

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.02000 – Abstention From Concerted Activity – Protected Activity

Employee engaged in protected activity by abstaining from participation in the Association. (pp. 5-6.)

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.01000 – In General; Prima Facie Case

The Board found that the Association violated its duty of fair representation by negotiating an MOU that discriminated against non-Association members. (p. 6.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.12000 – Employee Benefits; Insurance, Pensions, Vacations, Holiday Leave, Etc.

Applying the Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 standard, the Board found the employer discriminated against employee by denying her a benefit based upon the fact that she was not an Association member. There was no dispute that the benefit opportunity in question, i.e., the opportunity to use pretax money to enroll in employee group dental and eye care plans, was objectively a good thing. If the benefit opportunity is a good thing, favorable enough to be an inducement, then being denied that opportunity is unfavorable and adverse. (p. 9 and adopting proposed decision at pp. 7-8.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.05500 – Discrimination

The Board found that the Association discriminated against employee by negotiating an MOU that denied her a benefit based upon the fact that she was not an Association member. (adopting proposed decision at p. 10.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.02000 – Right Not to Participate

Employee engaged in protected activity by abstaining from participation in the Association. The benefit policy in question tended to interfere with non-Association employees by denying them a benefit opportunity. The more the employees needed or wanted that benefit opportunity, the more they were coerced into abandoning their protected activity of non-participation in the Association, and the employer had no legitimate business justification for that policy. (adopting proposed decision at p. 11.)

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.01000 – In General; Prima Facie Case

MMBA does not expressly impose a statutory duty of fair representation on employee organizations. In Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th 1213, however, the court stated that under the MMBA “unions owe a duty of fair representation to their [unit] members, and this requires them to refrain from representing their [unit] members arbitrarily, discriminatorily, or in bad faith.” Because the Board found that the City and Association negotiated an MOU that discriminated against employees who abstained from participation in the Association, it also found that the Association’s actions in negotiating that MOU were discrimination and in violation of its duty of fair representation. (adopting proposed decision at pp. 11-12.)

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

The Board did not give collateral estoppel effect to a federal court order where (1) it did not appear that the order granting motions to dismiss was final, (2) it did not appear that charging party is in privity with any party to the federal proceeding, and (3) the issue before the federal court was solely one of federal constitutional law, not MMBA law. (adopting proposed decision at pp. 12-13.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

The Board found that the remedial order in the consolidated cases should not apply only to the individual charging party as the cases were not only about discrimination against her, and the remedy was not only retrospective. Furthermore, the complaints alleged not only discrimination against employees but also interference with employee rights and a violation of Association’s duty of fair representation. These allegations on their face were not limited to one employee, nor should the remedy be. (adopting proposed decision at p. 13.)

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.01000 – In General

The Board found that the remedial order in the consolidated cases should not apply only to the individual charging party as the cases were not only about discrimination against her, and the remedy was not only retrospective. Furthermore, the complaints alleged not only discrimination against employees but also interference with employee rights and a violation of Association’s duty of fair representation. These allegations on their face were not limited to one employee, nor should the remedy be. (adopting proposed decision at p. 13.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

Charging party’s appeal did not comply with PERB Regulation 32635(a) as required for an appeal to the Board. Instead, the appeal reiterated the facts alleged in the unfair practice charge and did not specifically address why the dismissal should be reversed. (adopting warning letter at p. 2.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

Even if charging party’s statement to a fellow charge nurse that he was pro-union and had served as a union steward during previous employment experiences constituted protected activity, the charge failed to demonstrate that the county knew of charging party’s statements and that the county terminated charging party because of his protected activity. While charging party’s termination came within three weeks of his protected statement, charging party received his first negative evaluation before he made the statement. The charge failed to present any other nexus factors. (adopting warning letter at p. 3.)