Decision 2177H – Regents of the University of California (Irvine) * * * Overruled by Contra Costa County Fire Protection District (2019) PERB Decision 2632-M
SF-CE-931-H
Decision Date: March 29, 2011
Decision Type: PERB Decision
* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M * * *
Description: The charge alleged that the University discriminated against CUE-represented employees and interfered with their rights by paying a bonus only to non-represented employees and communicating the bonus via email and a website posting.
Disposition: The Board affirmed the Board agent’s dismissal of the charge. The Board held that granting a benefit exclusively to non-represented employee is not per se discrimination or interference, and that the charge failed to allege any additional facts to show that the bonus payment could harm employee rights. The Board further held that the communications were not coercive because they did not contain a threat or a promise of benefit.
Perc Vol: 35
Perc Index: 70
Decision Headnotes
400.01000 – In General; Standards
* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, where the Board held that an employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees, unlawfully discriminates and interferes with protected rights. * * *
To establish a prima facie case of interference, the charging party must allege facts showing that the employer’s conduct tends to or does result in some harm to employee rights. Employer’s payment of a bonus only to non-represented employees was not interference per se and charge failed to allege facts showing that the payment could harm employee rights in some way. Employer’s communications about the bonus via e-mail and website did not constitute interference because they were not coercive.
405.01000 – In General
* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, where the Board held that an employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees, unlawfully discriminates and interferes with protected rights. * * *
An employer’s statement interferes with employee rights when it contains a threat of reprisal or force, or promise of benefit. Employer’s communications via e-mail and website about a bonus paid only to non-represented employees were not coercive because they did not contain a threat or promise, and no threat or promise could be implied from the circumstances surrounding the communications.
405.03000 – Promise of or Withholding of Benefits
* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, where the Board held that an employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees, unlawfully discriminates and interferes with protected rights. * * *
Employer’s communications via e-mail and website about a bonus paid only to non-represented employees were not threatening because, despite the inability of the employer and union to reach agreement at the bargaining table, the context in which the communications were made did not support an inference that the employer’s statements promised a benefit to employees if they renounced union representation.
501.01000 – In General; Elements of Prima Facie Case
* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, where the Board held that an employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees, unlawfully discriminates and interferes with protected rights. * * *
To establish a prima facie case under the Campbell discrimination standard, the charging party must show that the employer engaged in conduct which could have harmed employee rights to some extent. Granting a benefit only to non-represented employees does not establish discrimination absent additional facts showing either: (1) the employer suggested employees would lose a benefit if they engaged in protected activity; or (2) the benefit could not be obtained through collective bargaining. No prima facie case when charging party failed to show that employer had rejected bonus proposals or indicated that bonus was not obtainable through collective bargaining.