Decision 2300H – Regents of the University of California

SF-CE-858-H, SF-CE-862-H

Decision Date: December 20, 2012

Decision Type: PERB Decision

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Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1 and El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 953, both established that PERB has exclusive initial jurisdiction to determine unfair practice charges and fashion a remedy, or not, where the conduct in question is arguably protected or prohibited by the statutes administered by PERB. Subsequent opinions from the courts of appeal amplified this doctrine, holding that if the alleged conduct at issue was either arguably protected or arguably prohibited under EERA, exclusive initial jurisdiction required the dispute to be brought to PERB in the first instance, regardless of how the case was pleaded, and even if there were constitutional issues to be decided. The Legislature intended that PERB exercise jurisdiction over matters that could be unfair practices or other violations of EERA, even if the claims also alleged constitutional violations. Where there is a reasonable probability that PERB’s adjudication of non-constitutional issues could obviate consideration of the constitutional challenges, PERB does have exclusive initial jurisdiction over the matter. Moreover, the parties are required to exhaust administrative remedies. If the administrative proceedings do not resolve the constitutional issues, the aggrieved party is not precluded from raising the constitutional issues in subsequent judicial proceeding. Even in cases where the underlying conduct unquestionably meets one or both prongs of the arguably-protected-or-prohibited test, courts relying on the local concern exception have refused to cede jurisdiction to the labor agency if the matter mainly touches upon matters within the traditional police powers of the state and in which adjudication by a superior court will not pose a substantial danger of interference with administrative adjudication by the labor board. Thus, the labor board will not have exclusive jurisdiction where mass picketing blocks ingress or egress; or where there was violence; or in cases of libel; or in cases of intentional infliction of emotional distress. Even though leafleting is a constitutionally protected activity, subject to reasonable time, place and manner restrictions, the question of unilateral change in the employer’s leafleting policy can be decided without resort to enforcing constitutional rights. As noted earlier, if the parties believe that our decision fails to resolve underlying constitutional issues, or that our decision intrudes on constitutional rights, they will be free to seek redress in the courts, having exhausted their administrative remedies. The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc.

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1 and El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 953, both established that PERB has exclusive initial jurisdiction to determine unfair practice charges and fashion a remedy, or not, where the conduct in question is arguably protected or prohibited by the statutes administered by PERB. Subsequent opinions from the courts of appeal amplified this doctrine, holding that if the alleged conduct at issue was either arguably protected or arguably prohibited under EERA, exclusive initial jurisdiction required the dispute to be brought to PERB in the first instance, regardless of how the case was pleaded, and even if there were constitutional issues to be decided. The Legislature intended that PERB exercise jurisdiction over matters that could be unfair practices or other violations of EERA, even if the claims also alleged constitutional violations. Where there is a reasonable probability that PERB’s adjudication of non-constitutional issues could obviate consideration of the constitutional challenges, PERB does have exclusive initial jurisdiction over the matter. Moreover, the parties are required to exhaust administrative remedies. If the administrative proceedings do not resolve the constitutional issues, the aggrieved party is not precluded from raising the constitutional issues in subsequent judicial proceeding. Unilateral change issues are squarely within PERB’s authority and expertise to decide. From the earliest days of this agency, the Board has articulated and applied its test for determining whether an employer’s unilateral actions constitute a violation of the duty to bargain in good faith. Even in cases where the underlying conduct unquestionably meets one or both prongs of the arguably-protected-or-prohibited test, courts relying on the local concern exception have refused to cede jurisdiction to the labor agency if the matter mainly touches upon matters within the traditional police powers of the state and in which adjudication by a superior court will not pose a substantial danger of interference with administrative adjudication by the labor board. Thus, the labor board will not have exclusive jurisdiction where mass picketing blocks ingress or egress; or where there was violence; or in cases of libel; or in cases of intentional infliction of emotional distress. Even though leafleting is a constitutionally protected activity, subject to reasonable time, place and manner restrictions, the question of unilateral change in the employer’s leafleting policy can be decided without resort to enforcing constitutional rights. As noted earlier, if the parties believe that our decision fails to resolve underlying constitutional issues, or that our decision intrudes on constitutional rights, they will be free to seek redress in the courts, having exhausted their administrative remedies. The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc. Also within PERB’s expertise and jurisdiction is the ability to assess whether the employer’s defense of waiver through collective bargaining agreement language or bargaining conduct is valid.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.11000 – Distribution of Literature

Even though leafleting is a constitutionally protected activity, subject to reasonable time, place and manner restrictions, the question of unilateral change in the employer’s leafleting policy can be decided without resort to enforcing constitutional rights. As noted earlier, if the parties believe that our decision fails to resolve underlying constitutional issues, or that our decision intrudes on constitutional rights, they will be free to seek redress in the courts, having exhausted their administrative remedies. This Board has consistently described leafleting to advertise a labor dispute as presumptively protected activity. The Board held that the distribution of leaflets by community college faculty members to members of the public attending the college’s graduation ceremonies was protected conduct under EERA. As in this case, the leaflets criticized the employer’s policies in the context of a labor dispute and were distributed on the college’s property.

302.00000 – UNFAIR PRACTICE ISSUES; PICKETING
302.01000 – In General

The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc.

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

PERB has held that access rules are negotiable and unilateral changes in those rules are unfair practices under HEERA. This Board has consistently described leafleting to advertise a labor dispute as presumptively protected activity. The Board held that the distribution of leaflets by community college faculty members to members of the public attending the college’s graduation ceremonies was protected conduct under EERA. As in this case, the leaflets criticized the employer’s policies in the context of a labor dispute and were distributed on the college’s property. The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc. Union access rules are negotiable. Access to the public employer’s property for the purpose of communicating the union’s message implicates a variety of issues that the mediatory influence of collective bargaining is likely to resolve, such as reasonable time, place and manner restrictions, and the designation of places that the employer may legitimately reserve for itself as an area in which it is the only permitted speaker. The regulation at issue here purports to regulate more than traditional access to employees, as its scope reaches to union hand billing the general public and other staff on university property. We find that these broader regulations on union leafleting activity designed to reach both the public and employees are also within the scope of negotiations. A union’s publicizing its dispute over terms and conditions of employment to the public at large as well as to its members and other employees goes to the essence of the employment relationship. Providing information to the public and urging it to support labor’s demands with the public employer is one of the more important levers employees and their representative organizations have in securing demands over wages, benefits and other terms and conditions of employment. Few subjects could be more closely related to or involved with the employment relationship. The right of access to facilities where employees work is presumptive and employer restrictions on that right must be narrowly drawn. In the absence of facts demonstrating why daily access to break rooms would be disruptive to university operations, the employer may not prevail here by simply saying the union had all the access it needs. Such a position does not meet the standard of a narrowly drawn regulation that avoids overbroad and unnecessary interference. Further, it is not for the employer to determine how much access is “needed” by the union, especially in the absence of evidence that such frequent access was or tended to be disruptive.

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

The summary manner in which union organizers were ordered to leave their meetings amounted to at least slight harm to both the Union’s right to communicate with employees and to employees’ right to participate in these meetings, thereby triggering the Carlsbad Unified School District (1979) PERB Decision No. 89 test. Under that test, the University simply failed to justify its actions as a legitimate operational necessity.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.03000 – Discontinuance of Illegal Activity; Retraction; Repudiation; Public Disavowal

An honest retraction of a coercive statement can erase the effects of that illegal statement or threat. PERB has refused to credit a retraction where it was incomplete and did not reach all of the employees who were subjected to the original coercive statements. We do not believe the university’s retraction to a union organizer renders its violations de minimis because it was an incomplete retraction. It was not communicated to the employees affected by the wrongful conduct. Nor can it be said that the original interference was unintentional or inadvertent, coming as it did in the context of other actions that deprived the union and employees of their right of access. Seen in the context of the university’s overly restrictive interpretation of the collective bargaining agreement’s access provisions, its assertion that it alone has the right to grant or deny access, and its aggressive attitude toward both organizers as they sought to increase their presence in the workplace as the labor dispute grew increasingly heated, we do not view the retraction given to one union organizer alone erases the coercive effect the organizer’s original ejection from the workplace had on employees’ protected rights.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.05000 – Union Consent or Waiver

Also within PERB’s expertise and jurisdiction is the ability to assess whether the employer’s defense of waiver through collective bargaining agreement language or bargaining conduct is valid.

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

The Board has long recognized the harm to collective bargaining caused by an employer’s unilateral actions with respect to negotiable terms and conditions of employment. Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment and must of necessity obstruct bargaining. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice without also finding the employer guilty of over-all subjective bad faith. (Pajaro Valley Unified School District (1978) PERB Decision No. 51; NLRB v. Katz (1962) 369 U.S. 736.) To prove up a unilateral change, the charging party must establish that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; (4) the action had a generalized effect or continuing impact on terms and conditions of employment. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262.) An employer may neither unilaterally add new terms to nor repudiate provisions in an existing collective bargaining agreement. The duty to refrain from taking unilateral action concerning negotiable terms and conditions of employment applies in all stages of the collective bargaining process, including during negotiation of successor collective bargaining agreements.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

An employer may neither unilaterally add new terms to nor repudiate provisions in an existing collective bargaining agreement.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

The duty to refrain from taking unilateral action concerning negotiable terms and conditions of employment applies in all stages of the collective bargaining process, including during negotiation of successor collective bargaining agreements.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Because the collective bargaining agreement (CBA) is ambiguous as to whether it applies to this conduct, the employer has not sustained its burden to prove its Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) defense. The university argues that even if it had previously refrained from enforcing its leafleting rules, it was privileged to do so in 2008 because the CBA allowed such enforcement. Marysville establishes that an employer does not waive its right to enforce the clear terms of a CBA even if it had allowed a benefit that was more generous than the agreement. Because the record is devoid of evidence about whether the CBA provision applies to leafleting to the public, the employer cannot rely on Marysville, as the CBA is not clear and unambiguous. We reject the university’s claim that an abandoned negotiating proposal constitutes a waiver. By dropping its demand, the union loses what it sought to gain, but it does not thereby grant management the right to subsequently institute any unilateral change it chooses.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

A subject is within the scope of representation if: (1) it involves the employment relationship; (2) is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict; and (3) the employer's obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer's mission.

1000.00000 – SCOPE OF REPRESENTATION
1000.02002 – Access – Subject of Bargaining

PERB has held that access rules are negotiable and unilateral changes in those rules are unfair practices under HEERA. Union access rules are negotiable. Access to the public employer’s property for the purpose of communicating the union’s message implicates a variety of issues that the mediatory influence of collective bargaining is likely to resolve, such as reasonable time, place and manner restrictions, and the designation of places that the employer may legitimately reserve for itself as an area in which it is the only permitted speaker. The regulation at issue here purports to regulate more than traditional access to employees, as its scope reaches to union hand billing the general public and other staff on university property. We find that these broader regulations on union leafleting activity designed to reach both the public and employees are also within the scope of negotiations.