Decision 2632M – Contra Costa County Fire Protection District

The focus of an interference allegation is on the actual or reasonably likely harm of an employer’s conduct to the protected rights of employees, employee organizations, or both. The employer’s motive, intent or purpose is not part of a prima facie case of interference and issues regarding the employer’s subjective state of mind are only germane at all in an interference case where the employer has asserted as an affirmative defense that it acted in good faith for a bona fide business purpose, i.e., for determining whether the employer acted for the reason it has asserted. While the analysis differs depending upon the nature or severity of likely harm ascribed to the employer’s conduct, regardless of how one gets there, an interference violation will be found when the resulting harm to protected rights outweighs the business justification or other defense asserted by the employer.

The focus of an interference allegation is on the actual or reasonably likely harm of an employer’s conduct to the protected rights of employees, employee organizations, or both. The employer’s motive, intent or purpose is not part of a prima facie case of interference and issues regarding the employer’s subjective state of mind are only germane at all in an interference case where the employer has asserted as an affirmative defense that it acted in good faith for a bona fide business purpose, i.e., for determining whether the employer acted for the reason it has asserted. While the analysis differs depending upon the nature or severity of likely harm ascribed to the employer’s conduct, regardless of how one gets there, an interference violation will be found when the resulting harm to protected rights outweighs the business justification or other defense asserted by the employer.

Employer statements or other conduct containing a threat of reprisal or force or a promise of benefit on the basis of protected activity are unprotected and constitute a prima facie case of interference, coercion or restraint. (City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26; Rio Hondo Community College District (1980) PERB Decision No. 128, pp. 18-20; NLRB v. Exchange Parts Co. (1964) 375 U.S. 405, 409-410.) Employer statements that convey the impression that collective bargaining is futile may also reasonably tend to discourage participation in protected activity and thereby interfere with the rights of employees and/or employee organizations.

An interference violation may be found only where the pertinent PERB-administered statute provides the right(s) asserted by the charging party. Consequently, while an interference allegation may arise from an employer’s bargaining conduct, it cannot expand or otherwise alter the scope of the employer’s duty to meet and confer in good faith. (MMBA, §§ 3504, 3505.) [At the same time e]stablishing a bargaining violation is not a prerequisite for proving up an independent interference or discrimination allegation, even when the latter arises from the employer’s bargaining conduct. The MMBA prohibits public agencies from taking actions which are otherwise entirely lawful, when undertaken for an unlawful discriminatory purpose, or, in interference cases, with an unlawful coercive effect without regard to intent. Even where it has unquestioned discretion to act, a public agency is not free to exercise its authority in a manner that violates the rights of employees or employee organizations.

In Carlsbad, the Board explained that employer conduct will be deemed “inherently destructive” of protected rights, if its “natural and probable consequence” would be to discourage the exercise of such rights. The District’s decision to grant longevity differentials only to unrepresented employees not only tended to interfere with protected activity but was so significant that its natural and probable consequence was to interfere with Association and employee rights. By explicitly distinguishing between represented and unrepresented employees and insisting on its intent to compensate the latter group at a higher level, the District’s position inherently discourages union activity. Accordingly, under Carlsbad, the District’s conduct may be excused only on proof that it was occasioned by circumstances beyond the District’s control and that no alternative course of action was available.

While motive is not part of the prima facie case of interference, where the respondent has asserted that it acted for a legitimate business purpose, PERB analyzes the affirmative defense, in part, using principles applicable in a “mixed motive” discrimination case. Specifically, the Board may consider not only whether the stated justification is legitimate, but also whether it was, in fact, the reason for the employer’s conduct. Affirmative defense fails where the key distinction at the heart of the unlawful pay structure is not a distinction in which employees earn more due to higher skill or higher level work; to the contrary, the only explanation that accurately describes the District’s pay structure is that the District wanted unrepresented managers to earn more, even if they were at the same level as represented managers.

District’s high-ranking labor relations officials repeatedly and expressly relied on the distinction between represented and unrepresented employees as the basis for determining eligibility for employment benefits. These statements provide direct evidence of motive and, indeed, of facially or inherently discriminatory conduct sufficient to support a discrimination allegation.

District’s high-ranking labor relations officials repeatedly and expressly relied on the distinction between represented and unrepresented employees as the basis for determining eligibility for employment benefits. These statements provide direct evidence of motive and, indeed, of facially or inherently discriminatory conduct sufficient to support a discrimination allegation.

An employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees unlawfully discriminates and interferes with protected rights, because its conduct indicates that employees who choose union representation will automatically forfeit participation or eligibility for the benefit, and/or that the benefit is not subject to negotiation.

Under Campbell, if an employer’s discriminatory conduct is “inherently destructive” of protected rights, no further proof of improper motivation is needed and we may find the employer guilty of an unfair labor practice even if it introduces evidence that its conduct was motivated by legitimate business considerations. However, even if we were to find the District’s conduct caused only comparatively slight harm to protected rights, we would still find merit to the present charge and complaint, given the combination of direct and circumstantial evidence of discrimination and the pretextual nature of the District’s explanations. The District’s post-hoc arguments, including its alleged financial concerns and its desire to maintain certain benefits for higher-ranking unrepresented managers so as to preserve promotional incentives, have already been considered and found unpersuasive.

Board finds no merit in the District’s implicit argument that its constitutional power to determine wages precludes PERB from ordering backpay to remedy interference and/or discrimination. The MMBA incorporates by reference the Board’s broad powers under EERA to effectuate the purposes of the Act. (MMBA, § 3509, subds. (a), (b); Gov. Code, § 3541.3, subds. (i), (n).) By contrast, the MMBA expressly limits PERB’s power to award monetary damages only in cases involving an unlawful strike, which is not at issue here. (MMBA, § 3509, subd. (b).) Thus, the principle that the expression of one thing excludes others further confirms that PERB’s broad remedial powers include the power to direct public agencies to compensate employees with backpay, or other forms of remuneration necessary to make employees whole or to otherwise effectuate the statute’s purposes.

We follow the Legislature’s directive and controlling judicial interpretations of the MMBA in concluding that where a public employer has interfered with and/or discriminated on the basis of protected rights, PERB may properly order awards of backpay and/or retroactive benefits until the interference and/or discrimination have ceased, or such other affirmative relief as may be necessary to effectuate the policies and purposes of the MMBA.

As in Santa Monica Community College District (1979) PERB Decision No. 103 [denying salary increase after union refused to waive its right to negotiate over salary], the District’s discriminatory conduct in this case consists of denying an employment benefit to some employees, while granting the same benefit to others, on the basis of protected activity. An effective make-whole remedy in this case therefore includes ordering the District to make Association-represented employees whole until such interference and discrimination cease. Additionally, as in Santa Monica CCD, the appropriate measure of backpay and back benefits is not what the employees affected by unlawful discrimination might have obtained through negotiations between their representative and the employer, but the benefit actually granted to other, employees not engaged in protected activity.