Decision 2611M – County of Orange

LA-CE-960-M

Decision Date: December 19, 2018

Decision Type: PERB Decision

Description:  County excepted to a proposed decision concluding that it violated the MMBA by:  (1) interfering with AFSCME’s rights to access employees at the workplace and to communicate with employees about grievances; (2) unilaterally changing release time policies and practices; and (3) retaliating against employee representatives by disciplining them for engaging in protected activity.

Disposition:  Precedential Decision.  The Board affirmed and adopted the proposed decision to the extent its conclusions of law were consistent with the Board’s clarification of longstanding precedent.

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Perc Vol: 43
Perc Index: 101

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.10000 – Solicitation/Organizing

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.)

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.12000 – Good Faith; DeMinimus; Temporary Change

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.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02117 – Released Time

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.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

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.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

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.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

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.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

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.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

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.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

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.)

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.06000 – Management-Rights Clause; Management Prerogative

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

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.02000 – Union Bad Faith, Delay, Unreasonable or Unlawful Demands, Violence or Misconduct

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.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

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.)

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

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.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

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.)

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

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.)

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

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.)

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

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.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.06000 – Bulletin Board Use; Posting of Union Notices

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.)

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

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.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

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.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.11000 – Legitimate Business Purpose/Business Necessity

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.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.18000 – Review of Findings Not Excepted To

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.)