Decision 2145M – West Contra Costa Healthcare District

SF-CE-641-M; SF-CE-648-M; SF-CO-201-M; SF-DP-281-M

Decision Date: November 30, 2010

Decision Type: PERB Decision

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Perc Vol: 35
Perc Index: 5

Decision Headnotes

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.02000 – Discrimination Favoring Organization Over Another

Employer’s requirement that incumbent union’s non-employee organizers sign in and wear an identification badge to access non-public areas of the employer’s hospital, while not requiring non-employee organizers from the union seeking to decertify the incumbent to do the same, did not interfere with the incumbent union’s or employees’ rights because the requirement affirmed the incumbent’s status as the exclusive representative and did not tend to influence employees to support the rival union.

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

Employer’s requirement that incumbent union’s non-employee organizers sign in and wear an identification badge to access non-public areas of the employer’s hospital did not interfere with the union’s access rights because the hospital imposed the same requirement on other members of the public who wished to access the same areas.

407.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION
407.04000 – Employer Favoritism/Absence of Strict Neutrality

Employer did not violate its duty of strict neutrality during a decertification election campaign when it failed to prevent non-employee organizers from the union seeking to decertify the incumbent from accessing non-public areas of the employer’s hospital on every occasion. The employer responded promptly to each of the incumbent union’s complaints about unauthorized access by the rival union. Nor did the employer’s requirement that non-employee organizers of the incumbent union, but not the rival union, sign in and wear identification badges to access non-public areas violate the duty of strict neutrality because the requirement affirmed the incumbent’s status as the exclusive representative and did not tend to influence employees to support the rival union.

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

Employer’s requirement that incumbent union’s non-employee organizers sign in and wear an identification badge to access non-public areas of the employer’s hospital during an election campaign had a de minimis impact on the union’s access rights. Under Claremont Police Officers Assn. v. City of Claremont, the requirement did not have a significant and adverse effect on a subject within the scope of representation and thus the employer had no duty to meet and confer before adopting and implementing the requirement. No unilateral change in access rights when the employer never imposed a requirement that organizers be escorted by a staff member nor limited the areas to which the incumbent union had access.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

Employer’s requirement that incumbent union’s non-employee organizers sign in and wear an identification badge to access non-public areas of the employer’s hospital during an election campaign had a de minimis impact on the union’s access rights. Under Claremont Police Officers Assn. v. City of Claremont, the requirement did not have a significant and adverse effect on a subject within the scope of representation and thus the employer had no duty to meet and confer before adopting and implementing the requirement.

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

Parties had undisputed past practice that union representatives were allowed to access break rooms in non-public areas of the employer’s hospital without an escort. No unilateral change when the employer never imposed a requirement that representatives be escorted by a staff member to access break rooms or ever restricted representatives to public areas of the hospital.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

In ascertaining whether a misrepresentation by a party during an election campaign interferes with employee rights, PERB looks to whether the statement was made in a fraudulent manner that would prevent an employee from evaluating the truth of the statement. Union flyer instructing employees to give their mail ballots to a “trusted shop steward” did not interfere with employee rights because employees had ample means to learn the proper method for returning the ballot well before the ballot return date: the union immediately issued a corrected flyer, mailed a newsletter containing a correction to each bargaining unit member’s home, and ballot instructions were posted at the employer’s premises and included by PERB with the ballot itself.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.08000 – Other

In ascertaining whether a misrepresentation by a party during an election campaign interferes with employee rights, PERB looks to whether the statement was made in a fraudulent manner that would prevent an employee from evaluating the truth of the statement. Union flyer instructing employees to give their mail ballots to a “trusted shop steward” did not interfere with employee rights because employees had ample means to learn the proper method for returning the ballot well before the ballot return date: the union immediately issued a corrected flyer, mailed a newsletter containing a correction to each bargaining unit member’s home, and ballot instructions were posted at the employer’s premises and included by PERB with the ballot itself.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.04000 – Amendments

Pursuant to PERB Regulation 32648, the charging party may move to amend the complaint by oral motion on the record. In ruling on such a motion, the ALJ should consider prejudice to the respondent, among other factors. Motion to amend complaint on the fourth and last day of hearing to allege that an employee acted as the employer’s agent when he circulated a petition to ban union representatives from employee break rooms was properly denied because amendment would have been prejudicial to the respondent. Given the lateness of the request to amend, and the fact that the issue had not been raised in the charging party’s charge documents, respondent would not have had adequate notice or an opportunity to fully defend against the allegation.

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
1304.03000 – Employer Conduct

In ruling on election objections, PERB’s inquiry is whether the employer’s conduct interfered with employees’ right to choose a representative. An election will be set aside only when the conduct actually affects, or has a natural and probable effect on, employee free choice. The conduct need not constitute an unfair practice to set aside the election. Conversely, conduct amounting to an unfair practice does not necessarily require the election to be set aside. Election objections dismissed when the employer did not grant the challenging union preferential access rights or restrict the incumbent union’s access to employees during a decertification election campaign.

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
1304.05000 – Union Conduct

PERB will not set aside an election based on a party’s misrepresentation during the election campaign unless the misrepresentation was made in such a way that employees would not be able to ascertain the truth of the statement. Union flyer instructing employees to give their mail ballots to a “trusted shop steward” did not interfere with employee free choice because employees had ample means to learn the proper method for returning the ballot well before the ballot return date: the union immediately issued a corrected flyer, mailed a newsletter containing a correction to each bargaining unit member’s home, and ballot instructions were posted at the employer’s premises and included by PERB with the ballot itself.