Decision 2106S – State of California (Department of Personnel Administration) * * * VACATED by State of California (Department of Personnel Administration) PERB Decision No. 2106a-S

SA-CE-1636-S

Decision Date: April 30, 2010

Decision Type: PERB Decision

 * * * VACATED by State of California (Department of Personnel Administration) PERB Decision No. 2106a-S * * *

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Perc Vol: 34
Perc Index: 79

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

Although it is not bound by decisions of the NLRB, the Board will take cognizance of NLRB precedent were appropriate, as an aid in interpreting identical or analogous provisions of the statutes.

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

Union member employees exercised protected rights when they chose to join the union.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

Union member employees exercised protected rights when they chose to join the union.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Initially, the Board laid out a single test to establish a violation of both the interference and discrimination prohibitions. (See Carlsbad Unified School District (1979) PERB Decision No. 89.) Clearly, the Board was influenced by the standard set forth in NLRB v. Great Dane Trailers (1967) 388 U.S. 26. In Novato Unified School District (1982) PERB Decision No. 210, the Board clarified the separate standards of proof for interference and discrimination violations. No evidence established that the difference in dental benefit costs for union and non-union members resulted in actual harm to the rights of union members.

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

Union member employees exercised protected rights when they chose to join the union.

402.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES
402.03000 – Union Activities or Membership

Union member employees exercised protected rights when they chose to join the union.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.03000 – Promise of or Withholding of Benefits

No evidence that the difference in dental benefit costs for union and non-union members resulted in actual harm to the rights of union members. Providing dental benefits at a lower cost to non-union members, while excluding union members from this option, tends to result in at least slight harm to employees who choose to exercise the right to join a union. A reduced benefit cost available only to non-union members may influence an employee’s decision to join the union.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

The Board in City of San Diego (2005) PERB Decision No. 1738-M, held that the denial of a benefit opportunity was an adverse action. However, the San Diego Board erred in applying the Novato discrimination standard to find an adverse action. Accordingly, that portion of San Diego is overruled.

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

The charge does not demonstrate that the State took adverse action against union members when it provided non-union members with a lower cost dental benefit. No action was taken against union members that either imposed discipline or changed their terms and conditions of employment. Union members continued to receive the same dental benefits at the same employee contribution rate. There was no impact on the employees’ employment. The Board in City of San Diego (2005) PERB Decision No. 1738-M, held that the denial of a benefit opportunity was an adverse action. However, the San Diego Board erred in applying the Novato discrimination standard to find an adverse action. Accordingly, that portion of San Diego is overruled.