Decision 1971M – City of Torrance
LA-CE-316-M; LA-CO-43-M
Decision Date: August 21, 2008
Decision Type: PERB Decision
Description: Consolidated Cases AFSCME alleged that the City retaliated against its president by demanding reimbursement and threatening discipline for alleged unauthorized use of release time because AFSCME had campaigned against the successful mayoral candidate.
The City alleged that AFSCME breached its duty to meet and confer in good faith by refusing to bargain over the City’s presidential release time proposal.
Disposition: The Board affirmed the ALJ’s conclusion that the City’s conduct constituted both retaliation against the union president and interference with the president’s and AFSCME’s protected rights under MMBA. The Board also affirmed the ALJ’s conclusion that AFSCME breached its duty to meet and confer in good faith by refusing to bargain over the City’s release time proposal.
Perc Vol: 32
Perc Index: 126
Decision Headnotes
300.01000 – In General
Union president’s active role in union’s election campaign against successful mayoral candidate, including questions asked at city council meeting pursuant to a vote of the union’s membership and governing board, and writing a letter to the editor in the local newspaper that identified her as the union president, constituted protected activity because the union’s election campaign was a matter of employer-employee relations. Union president’s letter to the editor and recorded phone call critical of the successful mayoral candidate that identified the president only as a city employee were not protected activity because they were not part of the union’s election campaign and did not concern matters of employer-employee relations.
300.13000 – Holding Union Office
Union president’s active role in union’s election campaign against successful mayoral candidate, including questions asked at city council meeting pursuant to a vote of the union’s membership and governing board, and writing a letter to the editor in the local newspaper that identified her as the union president, constituted protected activity because the union’s election campaign was a matter of employer-employee relations. A letter to the editor and recorded phone call critical of the successful mayoral candidate that identified the president only as a city employee were not protected activity because they were not part of the union’s election campaign and did not concern matters of employer-employee relations.
300.17000 – Other
Union president’s active role in union’s election campaign against successful mayoral candidate, including questions asked at city council meeting pursuant to a vote of the union’s membership and governing board, and writing a letter to the editor in the local newspaper that identified her as the union president, constituted protected activity because the union’s election campaign was a matter of employer-employee relations. A letter to the editor and recorded phone call critical of the successful mayoral candidate that identified the president only as a city employee were not protected activity because they were not part of the union’s election campaign and did not concern matters of employer-employee relations.
400.01000 – In General; Standards
Employer’s conduct in seeking reimbursement of release time and threatening discipline against union president and mayor’s expressions of union animus to union president interfered with union president and union’s protected rights under MMBA by discouraging president from continuing to serve as union officer.
409.01000 – Business Necessity
No business necessity defense where employer conduct that interfered with protected rights under MMBA was not required for enforcement of presidential release time MOU.
501.01000 – In General; Elements of Prima Facie Case
Reprisals constitute a prohibited form of discrimination under MMBA section 3506 and PERB Regulation 32603(a).
503.01000 – In General
Employer’s order that union president take only three days of release time per week was not adverse action because employer was merely enforcing the MOU. Employer’s demand for reimbursement of release time in excess of three days per week, threat to discipline union president for unauthorized use of release time and investigation into union president’s use of release time were adverse actions.
503.15000 – Other
Employer’s order that union president take only three days of release time per week was not adverse action because employer was merely enforcing the MOU. Employer’s demand for reimbursement of release time in excess of three days per week, threat to discipline union president for unauthorized use of release time and investigation into union president’s use of release time were adverse actions.
504.04000 – Timing of Action
Employer’s demand for reimbursement of release time and threat of discipline for unauthorized use of release time made to union president within two months after election of mayor against whom union had campaigned supports an inference of retaliation.
504.08000 – Cursory Investigation
Employer conducted cursory investigation of union president’s allegedly unauthorized use of release time because employer was aware of evidence that union president’s supervisor and department head had authorized the release time yet did not contact either the union president or department management to follow up on the evidence and continued to seek reimbursement of release time and threaten discipline after it became aware of the evidence.
504.12000 – Employer Statements or Conduct; Threats
Mayor’s statements to union president that he would hold president personally responsible for the union’s election campaign against him and that he could only work with the union if she were not president indicated mayor’s animus toward union. Mayor’s animus imputed to employer City because mayor had authority over employer’s decision to seek release time reimbursement and threaten union president with discipline.
505.01000 – In General
Employer failed to establish it would have taken adverse actions against union president in the absence of president’s protected activity because adverse actions were not necessary to enforce the presidential release time MOU.
505.13000 – Other
Employer failed to establish it would have taken adverse actions against union president in the absence of president’s protected activity because adverse actions were not necessary to enforce the presidential release time MOU.
804.02000 – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)
Union’s refusal to bargain over employer’s proposal to reduce union president’s release time constituted per se violation of duty to meet and confer in good faith.
806.01000 – In General
Employer did not engage in conditional bargaining because it did not condition further bargaining on the union’s acceptance of its proposal that both parties withdraw their unfair practice charges. Further, the employer did not make its mutual withdrawal proposal until after the union had twice refused to bargain and therefore the alleged conditional bargaining could not excuse the refusal to bargain.
806.08000 – Waiver
Employer did not waive right to bargain over presidential release time by entering into MOU pertaining solely to that subject which contained no fixed term. The MOU was not incorporated into the parties’ collective bargaining agreement and therefore was subject to renegotiation upon request at any time.
1103.05000 – Answer or Other Defense/Waiver
A defense that the other party to negotiations engaged in conditional bargaining is in the nature of an affirmative defense because it essentially alleges an unfair practice. Union did not raise employer’s conditional bargaining as a defense in its answer nor did it move to amend the answer at hearing to include the defense. ALJ properly declined to address the conditional bargaining defense in the proposed decision.