Decision 2485E – Petaluma City Elementary School District/Joint Union High School District

Right of employees under EERA section 3543, subdivision (a), to participate in activities of employee organizations does not include absolute right to attend negotiations between the exclusive representative and the public school employer. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ designated representatives, absent an agreement or established practice to the contrary. pp. 29-34. Similar to union access and released time for employee representatives, PERB regards employee rights to communicate, solicit and distribute information at work as encompassing both statutory rights and negotiable matters. The statutory right of employees to be represented by employee organizations generally includes the right to communicate with one another about working conditions, to show allegiance to the organizations of their choice and to express solidarity with other employees for the purpose of representation or for other mutual aid or protection.

Right of employees under EERA section 3543, subdivision (a), to participate in activities of employee organizations does not include absolute right to attend negotiations between the exclusive representative and the public school employer. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ designated representatives, absent an agreement or established practice to the contrary. pp. 29-34.

Similar to union access and released time for employee representatives, PERB regards employee rights to communicate, solicit and distribute information at work as encompassing both statutory rights and negotiable matters. A categorical prohibition against distributing literature or other means of communication states a prima facie case of employer interference with fundamental rights of employee organizations to represent and communicate with employees and of employees to self-organize and communicate with one another in the workplace.

Similar to union access and released time for employee representatives, PERB regards employee rights to communicate, solicit and distribute information at work as encompassing both statutory rights and negotiable matters. A categorical prohibition against distributing literature or other means of communication states a prima facie case of employer interference with fundamental rights of employee organizations to represent and communicate with employees and of employees to self-organize and communicate with one another in the workplace.

Similar to union access and released time for employee representatives, PERB regards employee rights to communicate, solicit and distribute information at work as encompassing both statutory rights and negotiable matters. The statutory right of employees to be represented by employee organizations generally includes the right to communicate with one another about working conditions, to show allegiance to the organizations of their choice and to express solidarity with other employees for the purpose of representation or for other mutual aid or protection. A categorical prohibition against distributing literature or other means of communication states a prima facie case of employer interference with fundamental rights of employee organizations to represent and communicate with employees and of employees to self-organize and communicate with one another in the workplace.

Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy which expressly singled out for prohibition materials of a “union” content at anytime and anywhere in the workplace stated prima facie case of employer conduct that is inherently destructive of protected employee and organizational rights. Although the employer’s representative allegedly clarified that its e-mail message stating a categorical ban on distributing union literature was intended to address questions from school principals and “was not intended to be shared with staff,” school district did not rebut prima facie case where it never claimed to have publicly and unequivocally disavowed either any inadvertent distribution of the message to teachers or its enforcement by one school principal. Additionally, unless an affirmative defense is established on undisputed facts as a matter of law, it will not rebut a prima facie case at the charge investigation stage of PERB’s unfair practice proceedings.

Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy whereby employees must be off school property when they hand out union literature stated prima facie allegation of employer interference with protected employee and organizational rights. Blanket geographic ban on solicitation, distribution and access rights is overly broad in that it fails to account for the fact that not all time spent on the employer’s premises is “on duty” or otherwise subject to employer restrictions on union or other concerted employee activity. Legitimate employer concerns of ensuring order, production or discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-work areas. Allegation that public school employer promulgated, maintained and enforced policy specifically prohibiting employees from distributing materials of “a political or union nature” stated prima facie allegation of employer interference with protected employee and organizational rights by making impermissible content-based restriction. Because the degree of intrusion into an employer’s property or managerial interests does not vary with the content of the material distributed, an employer’s only legitimate interest in regulating such conduct is in preventing employees from bringing literature onto its premises and distributing it there — not in choosing which messages to condone or suppress. In addition to non-work areas, once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is generally not free to ban other non-disruptive speech or conduct based solely on its content.

Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks.

Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy whereby employees must be off school property when they hand out union literature stated prima facie allegation of employer interference with protected employee and organizational rights. Blanket geographic ban on solicitation, distribution and access rights is overly broad in that it fails to account for the fact that not all time spent on the employer’s premises is “on duty” or otherwise subject to employer restrictions on union or other concerted employee activity. Legitimate employer concerns of ensuring order, production or discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-work areas. Allegation that public school employer promulgated, maintained and enforced policy specifically prohibiting employees from distributing materials of “a political or union nature” stated prima facie allegation of employer interference with protected employee and organizational rights by making impermissible content-based restriction. Because the degree of intrusion into an employer’s property or managerial interests does not vary with the content of the material distributed, an employer’s only legitimate interest in regulating such conduct is in preventing employees from bringing literature onto its premises and distributing it there — not in choosing which messages to condone or suppress. In addition to non-work areas, once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is generally not free to ban other non-disruptive speech or conduct based solely on its content. Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy whereby employees must be off school property when they hand out union literature stated prima facie allegation of employer interference with protected employee and organizational rights. Blanket geographic ban on solicitation, distribution and access rights is overly broad in that it fails to account for the fact that not all time spent on the employer’s premises is “on duty” or otherwise subject to employer restrictions on union or other concerted employee activity. Legitimate employer concerns of ensuring order, production or discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-work areas.

Allegation that public school employer promulgated, maintained and enforced policy specifically prohibiting employees from distributing materials of “a political or union nature” stated prima facie allegation of employer interference with protected employee and organizational rights by making impermissible content-based restriction. Because the degree of intrusion into an employer’s property or managerial interests does not vary with the content of the material distributed, an employer’s only legitimate interest in regulating such conduct is in preventing employees from bringing literature onto its premises and distributing it there — not in choosing which messages to condone or suppress. In addition to non-work areas, once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is generally not free to ban other non-disruptive speech or conduct based solely on its content.

Although the employer’s representative allegedly clarified that its e-mail message stating a categorical ban on distributing union literature was intended to address questions from school principals and “was not intended to be shared with staff,” school district did not rebut prima facie case where it never claimed to have publicly and unequivocally disavowed either any inadvertent distribution of the message to teachers or its enforcement by one school principal. Additionally, unless an affirmative defense is established on undisputed facts as a matter of law, it will not rebut a prima facie case at the charge investigation stage of PERB’s unfair practice proceedings.

Although charging party alleged several recognized “indicia” of bad faith, the charge failed to state a prima facie case that the public school employer had engaged in surface bargaining where the charge allegations demonstrated that the charging party’s own conduct of refusing to meet for negotiations unless employee observers were permitted to attend so frustrated negotiations that it precluded consideration of whether the public school employer had bargained in good faith.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary.

Legislative preference for collective bargaining through exclusive representation generally prohibits employer from presenting its bargaining proposals to employees instead of to their designated representatives. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary.

Legislative preference for collective bargaining through exclusive representation generally prohibits employer from presenting its bargaining proposals to employees instead of to their designated representatives. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary.

Legislative preference for collective bargaining through exclusive representation generally prohibits employer from presenting its bargaining proposals to employees instead of to their designated representatives. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary.

In determining whether a party has unreasonably delayed in responding to a request for presumptively relevant and necessary information, the responding party must exercise the same degree of diligence and thoroughness as it would in other business affairs of importance. Charging party stated a prima facie case that a public school employer had unreasonably delayed providing information by allegedly failing, without explanation, to provide charging party with certain information pertaining to unit members’ wages and benefits for six weeks. Fact that parties were not meeting during the six-week period because of a separate dispute over ground rules to negotiations did not, as a matter of law, excuse public school employer’s failure to provide information or advise employees’ representative that the information was not immediately available, since information was necessary and relevant for evaluating proposals and preparing counterproposals, even in the absence of in-person meetings. In the absence of any contemporaneous explanation by the District for its six-week delay in providing presumptively relevant information, charging party alleged sufficient facts to state a prima facie case that employer unreasonably delayed providing information. Charging party failed to state a prima facie violation of EERA section 3543.5, which makes it unlawful for a public school employer to “[k]nowingly provid[e] an exclusive representative with inaccurate information, whether or not in response to a request for information, regarding the financial resources of the public school employer.” Although the school district provided three different financial scenarios based on different budgetary assumptions, the fact that the information or the manner in which it was presented was confusing or unpersuasive did not either that any difficulty or confusion was deliberate (as alleged in the charge), or that the information was necessarily inaccurate.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate. pp. 29-34; 34-37.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully insisting on or conditioning negotiations on a non-mandatory subject of bargaining. pp. 29-34; 34-37.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully insisting on or conditioning negotiations on a non-mandatory subject of bargaining. pp. 29-34; 34-37.

Charging party failed to state a prima facie violation of EERA section 3543.5, which makes it unlawful for a public school employer to “[k]nowingly provid[e] an exclusive representative with inaccurate information, whether or not in response to a request for information, regarding the financial resources of the public school employer.” Although the school district provided three different financial scenarios based on different budgetary assumptions, the fact that the information or the manner in which it was presented was confusing or unpersuasive did not either that any difficulty or confusion was deliberate (as alleged in the charge), or that the information was necessarily inaccurate.

Although charging party alleged several recognized “indicia” of bad faith, the charge failed to state a prima facie case that the public school employer had engaged in surface bargaining where the charge allegations demonstrated that the charging party’s own conduct of refusing to meet for negotiations unless employee observers were permitted to attend so frustrated negotiations that it precluded consideration of whether the public school employer had bargained in good faith.

Although charging party alleged several recognized “indicia” of bad faith, the charge failed to state a prima facie case that the public school employer had engaged in surface bargaining where the charge allegations demonstrated that the charging party’s own conduct of refusing to meet for negotiations unless employee observers were permitted to attend so frustrated negotiations that it precluded consideration of whether the public school employer had bargained in good faith.

Although charging party alleged several recognized “indicia” of bad faith, the charge failed to state a prima facie case that the public school employer had engaged in surface bargaining where the charge allegations demonstrated that the charging party’s own conduct of refusing to meet for negotiations unless employee observers were permitted to attend so frustrated negotiations that it precluded consideration of whether the public school employer had bargained in good faith.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate.

By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate.

Where charging party alleged three instances in which employee observers were permitted to attend negotiations but the circumstances differed substantially in these instances, charging party failed to allege sufficient facts to show an established practice of permitting employees to attend negotiations. Generally, a one-time occurrence is not enough to show an established practice.

An unfair practice charge should not be dismissed without a hearing, based on an affirmative defense not raised during the investigation of the charge. p. 52.

An unfair practice charge should not be dismissed without a hearing, based on an affirmative defense not raised during the investigation of the charge. p. 52.

An unfair practice charge should not be dismissed without a hearing, based on an affirmative defense not raised during the investigation of the charge. p. 52.

Although charging party’s appeal did little more than reiterate the factual allegations of the charge and advanced no argument or authority that was not already considered and addressed by the Office of the General Counsel’s investigation of the charge, in arguing that the Office of the General Counsel reached the wrong conclusion based on the factual allegations, i.e., incorrectly applied the law to the factual allegations included in the charge, the appeal substantially complied with the requirement that the appeal place the Board and the respondent on notice of the issues, by identifying the substance of the dismissal and the specific issue(s) of fact, law, or application of law to fact, from which appeal is taken. A contrary rule would preclude the Board from reviewing a dismissal, even when the decision was manifestly incorrect.

An unfair practice charge should not be dismissed without a hearing, based on an affirmative defense not raised during the investigation of the charge. p. 52.