Decision 1971M – City of Torrance

LA-CE-316-M; LA-CO-43-M

Decision Date: August 21, 2008

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 32
Perc Index: 126

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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).

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

503.00000 – EMPLOYER DISCRIMINATION; 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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

804.00000 – UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT
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.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
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.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
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.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.