Decision 2556M – County of San Bernardino

LA-CE-923-M

Decision Date: March 6, 2018

Decision Type: PERB Decision

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Perc Vol: 42
Perc Index: 114

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.03000 – Purpose of the Act

Section 3500, subdivision (a), describes the MMBA’s two general purposes: (1) “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations”; and (2) “to promote the improvement of personnel management and employer-employee relations within the various public agencies in the State of California by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their employment relationships with public agencies.”

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.02000 – Exclusive Representatives

An exclusive representative under EERA is “the employee organization recognized or certified as the exclusive negotiating representative of public school employees, . . . in an appropriate unit of a public school employer.”

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.06000 – Nonexclusive Representatives

Nonexclusive representative refers to an employee organization, as defined by section 3540.1, subdivision (d), that has not been recognized or certified as the exclusive representative.

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

If the employer’s conduct interferes with protected conduct, the burden shifts to the employer to articulate a legitimate justification for its conduct. The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm. If the harm to employee rights is slight, a violation will be found unless the employer’s business justification outweighs the harm to employee rights. If the employer’s conduct is, instead, inherently destructive of employee rights, it will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.

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

Employer’s state of mind, including lack of premeditation, is not relevant to whether a prima facie case of interference is established.

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

Employee organizations that have not been recognized have a right to access non-working areas of an employer’s premises to solicit for union membership and distribute literature to employees during their non-work time.

403.00000 – EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE
403.01000 – In General; Unlawful Surveillance

The NLRB has generally found that an employer has engaged in unlawful surveillance when the employer photographs or videotapes employees or openly engages in recordkeeping of employees participating in union activities. The mere observation of open, public union activity on or near the employer’s property, however, does not constitute unlawful surveillance.

403.00000 – EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE
403.02000 – Taking Photographs or Motion Pictures

Photographing and recordkeeping are proscribed because of their tendency to intimidate.

403.00000 – EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE
403.02000 – Taking Photographs or Motion Pictures

Because even creating the impression of surveillance is unlawful, harm to employee rights occurred if employees saw agent of the county taking or appearing to take a photograph.

403.00000 – EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE
403.04000 – Statements to Employees, Creating Impression of Surveillance

Creating the impression of surveillance is unlawful.

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

Photographic or video surveillance may be justified as necessary to gather evidence when the employer reasonably believes that union organizers or employers are engaging in misconduct.

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

Business necessity defense is not available to employer that engages in surveillance to document violations of an access policy that is itself unlawful.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.02000 – Conduct Ineffective

The fact that union organizers “intimidated” county agent into deleting a photograph of employees engaged in protected activity did not mitigate the harm to employee rights, because the test of coercion and intimidation is not whether the misconduct proves effective.

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

Under the Board’s retraction doctrine, an effective retraction must be: (1) timely; (2) unambiguous; (3) specific in nature to the coercive conduct; (4) free from other illegal conduct; (5) adequately publicized to the affected employees; (6) not followed by other illegal conduct; and (7) accompanied by assurances that the employer will not interfere with their protected rights in the future.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.04000 – Union or Employee Misconduct

County agent’s belief that union organizers were violating access policy was not a defense to unlawful surveillance, where the access policy was itself unlawful.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.05000 – Precedential Authority of PERB Decisions

Even if a previous decision is not factually on all fours with, its reasoning may still be persuasive.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

A statutory right may be implied by the statute’s text and purposes.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

The Legislature’s use of one defined term rather than another in a particular statutory provision is significant when interpreting the provision.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

To interpret one of its statutes, the Board looks to case law interpreting its other statutes, mindful that by vesting PERB with jurisdiction over the MMBA, the Legislature intended “a coherent and harmonious system of public employment relations laws.” (Coachella Valley Mosquito and Vector Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1090.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

A statute cannot be interpreted in a manner inconsistent with its purpose.