Decision 2611M – County of Orange

Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. However, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.)

Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. However, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.)

The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, the Board analyzes whether the manner in which the employee communicated was so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection. (p. 8.)

Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Moreover, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.)

An employer may restrict non-business activities during work time, but it may not single out union activities for special restriction or enforce general restrictions more strictly with respect to union activities. (p. 3.) The employer violated this premise because it was aware of and permitted employee-run social committees to engage in non-business activities during work time but singled out union activity (e.g., soliciting information regarding working conditions or ongoing grievances) as being inappropriate non-business activities during work time. (pp. 4-5.)

Though a social committee’s activities may support an employer’s efficient operations (e.g., increasing morale, team building, and generating a productive workforce), the employer may not distinguish between such non-business activities and those of the exclusive bargaining representative when there is no significant difference in the nature or extent of the employer’s and union’s activities. Such distinction results in the overbroad, discriminatory application of an otherwise lawful regulation. (pp. 6-7.)

Employer unlawfully removed workload grievances posted by the union on its designated bulletin boards, claiming a legitimate business interest in removing derogatory materials from the bulletin boards. Under Rancho Santiago, communications about working conditions are permitted some leeway for intemperate language without losing statutory protection. Though the grievances were uncomplimentary of management, the rhetoric therein was typical of that used in labor disputes, and was thus protected speech. (pp. 9-10.)

While work time is for work, and an employer may therefore restrict non-business activities during work time, an employer fails to meet its burden to establish a legitimate business interest where it singles out or enforces a general rule more strictly with respect to union-related activities. (pp. 3-5.)

Employer’s changes to union release time policies and practices had more than a de minimis impact on employees’ and their representatives’ representational rights. (p. 12.) Because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment, the employer’s changes, unlike in Claremont Police Officers Assn. v. City of Claremont (2009) 39 Cal.4th 623, resulted in denials of paid release time employees would have otherwise received under the employer’s past practices. (pp. 11-12.)

A binding past practice is one which is “unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties,” or which is “regular and consistent” or “historic and accepted.” (pp. 10-11, fn. 7.) Though no specific period of time is required to develop a past practice, periods of eighteen months and one year were, in combination with other factors, sufficient to establish past practices allowing multiple union representatives to attend meetings and granting employees release time to file grievances, respectively. (Ibid.)

Though it failed to prove employee representatives engaged in release time abuse, proving such abuse would not relieve the employer of its obligation to bargain proposed changes to release time policies in good faith. (p. 13.)

Release time policies are not a fundamental managerial prerogative. (p. 13.)

Employer’s changes to union release time policies and practices had more than a de minimis impact on employees’ and their representatives’ representational rights. (p. 12.) Because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment, the employer’s changes, unlike in Claremont Police Officers Assn. v. City of Claremont (2009) 39 Cal.4th 623, resulted in denials of paid release time employees would have otherwise received under the employer’s past practices. (pp. 11-12.)

Union release time falls within the scope of representation because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment. (p. 11.)

Retaliation is demonstrated where: (1) the employee exercised statutory rights under a PERB-administered statute, (2) the employer had knowledge of the exercise of those rights, (3) the employer took adverse action against the employee, and (4) the employer took the action because of the exercise of those rights. If the charging party proves all of the elements of its case, the burden of proof shifts to the employer to establish that it had an alternative, non-discriminatory reason for taking the adverse action, and that it, in fact, acted because of this proffered reason and not because of the employee’s protected activity. (pp. 14, 18-19.)

PERB does not determine whether the employer had cause to discipline the employee; rather, it will examine the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.)

An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.)

Separate but related unfair practices may provide circumstantial evidence of union animus, thus supporting a finding that adverse actions were taken because of that animus. (p. 17) Two supervisors involved in or aware of the employer’s prior interference with and unilateral changes to representation rights consulted on an investigation of alleged misconduct by an employee representative, resulting in discipline. The ALJ appropriately considered these relevant facts, in addition to other nexus elements, to impute union animus to the supervisors. (pp. 17-18.)

PERB examines the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.)

An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.)

PERB examines the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.)

Factual findings may not be based solely on hearsay evidence. (PERB Reg. 32176.) Witnesses’ testimony regarding complaints they received about an employee, without more, is uncorroborated hearsay insufficient to prove the events described in the complaints actually occurred. (pp. 13, 20-21.)

An ALJ’s factual findings and conclusions of law to which neither party excepts are not before the Board on appeal and are therefore binding only upon the parties. (p. 2, fn. 2.)

An ALJ’s factual findings and conclusions of law to which neither party excepts are not before the Board on appeal and are therefore binding only upon the parties. (p. 2, fn. 2.)