Decision 2030M – Omnitrans

LA-CE-323-M

Decision Date: May 29, 2009

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 91

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Access of employer’s premises by union officer for purpose of communicating with employees is protected activity, provided officer’s conduct complies with reasonable time and place regulations adopted by employer. Employer’s access regulation was unreasonable as applied to drivers’ assembly room because it prohibited union activity in a non-work area during non-working time without a legitimate business reason for doing so. Thus, union officer’s use of assembly room to discuss union matters with individual employees was protected activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

Access of employer’s premises by union officer for purpose of communicating with employees is protected activity, provided officer’s conduct complies with reasonable time and place regulations adopted by employer. Employer’s access regulation was unreasonable as applied to drivers’ assembly room because it prohibited union activity in a non-work area during non-working time without a legitimate business reason for doing so. Thus, union officer’s use of assembly room to discuss union matters with individual employees was protected activity.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.01000 – In General; Prima Facie Case.

Employer’s initiation of arrest of employee/union officer for refusal to leave drivers’ assembly room where officer was discussing union matters with individual employees interfered with union’s right to access employees and employees’ right to discuss union matters with union representatives. The officer’s discussion of union matters with employees was a protected activity. The employer failed to establish a legitimate business reason for denying the officer access to the assembly room because the evidence showed the officer was not disrupting the employer’s operations in any way.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

The MMBA grants unions a right of access to an employer’s premises for the purpose of communicating with employees subject to reasonable time and place regulations by the employer.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

An employer may regulate union activity in a non-work area during non-working time only if the regulation is necessary to maintain order, production or discipline. Assembly room where bus drivers congregated before and after shifts was not a work area because, even though work was occasionally performed in the room, its primary purpose was as a place for employees to engage in non-work activities. Drivers who were on “standby” duty waiting for assignment were not on working time, even though they were paid for the time, because they were not performing any actual work duties. MOU provision that required prior permission for union access to on duty employees did not waive the union’s right to access standby drivers during their paid, non-working time without prior permission. Employer failed to show legitimate business reason for having employee/union officer removed from assembly room because the evidence showed the officer was not disrupting the employer’s operations in any way by speaking to individual drivers about union matters.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

When an employer has produced a legitimate business reason for conduct that interferes with employee or union rights, PERB must balance the competing interests to determine whether a violation has occurred. Employer denied union officer further access to an employee assembly room on the ground that his presence was disruptive. Evidence showed that officer’s presence did not interfere with employer’s operations. Nor did the fact that the officer was discussing with employees a topic of concern to management, rest and meal periods, justify the denial because there was no evidence discussion of that subject actually impaired the employer’s operations.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Memorandum of understanding was silent regarding union’s right to access employees in the drivers’ assembly room. The parties’ past practice was to allow union officers to meet individually with drivers about union matters in the assembly room without obtaining prior permission. The employer’s rule requiring the union to obtain prior permission to access employees in the assembly room altered the parties’ past practice and thus its implementation of the rule without providing the union with an opportunity to meet and confer over the change constituted an unlawful unilateral change.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

When a collective bargaining agreement and the parties’ bargaining history are silent regarding a particular policy, the policy may be ascertained from the parties’ past practice. To legally constitute a past practice, the practice must be unequivocal, clearly enunciated and acted upon, and readily ascertainable over a period of time. Over a period of several years, the employer allowed union officers to discuss union business with individual employees in the drivers’ assembly room without obtaining prior permission. Because this practice was regular and consistent over time and accepted by the employer, it constituted a past practice. Therefore, the employer’s imposition of a rule requiring union officers to obtain prior permission to access employees in the assembly room constituted a change of the parties’ past practice.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

PERB has the authority to order payment of attorneys’ fees and costs as part of a make-whole remedy. The employer’s enforcement of its unlawful union access policy directly resulted in the arrest of a union officer for criminal trespass. To make the officer whole, the Board ordered the employer to reimburse the union for reasonable attorneys’ fees it incurred defending the officer against the trespassing allegation.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

The employer’s enforcement of its unlawful union access policy directly resulted in the arrest of a union officer for criminal trespass. The Board ordered the employer to join the officer in petitioning the appropriate court to expunge the officer’s record resulting from the arrest. The Board also ordered the employer to pay reasonable attorneys’ fees and costs incurred by the officer in petitioning the court for expungement of his record.