Decision 2697M – County of Tulare (Service Employees International Union Local 521)

An exclusive representative has a right to engage in direct and indirect advocacy with an employer’s elected and unelected officials, up to and including the employer’s highest levels, provided that the exclusive representative does not make new collective bargaining proposals that the exclusive representative has not already made in negotiations with the employer’s chosen bargaining team. (Anaheim Union High School District (2015) PERB Decision No. 2434, pp. 52-53; Westminster School District (1982) PERB Decision No. 277, p. 10; San Ramon Valley Unified School District (1982) PERB Decision No. 230, pp. 16-18.) Union representative’s e-mails to County’s Board of Supervisors were protected advocacy and not impermissible direct dealing, where Union representative’s e-mails did not present any proposals that the Union had not already made in negotiations or advocate for contract terms differing materially from previous Union proposals. (PARTIALLY OVERRULING County of Inyo (2005) PERB Decision No. 1783-M, to extent it found that union engaged in direct dealing during a presentation to the employer’s board where there was no allegation that the union made new proposals from those union sought in bargaining during the presentation.)

In following Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731 (Bill Johnson’s). PERB has held that an employer’s decision to litigate claims against a union is generally not an unfair practice, unless the union can demonstrate that the claim had no reasonable basis and was subjectively motivated by an unlawful purpose. (County of Riverside (2018) PERB Decision No. 2591-M, p. 7, fn. 5; State of California (State Personnel Board) (2004) PERB Decision No. 1680-S, adopting warning letter at pp. 2-4; Rim of the World Unified School District (1986) PERB Order No. Ad-161, pp. 16-18; Bill Johnson’s Restaurants, supra, 461 U.S. at pp. 745-747.)

Under the MMBA, a local agency may adopt reasonable access rules. (MMBA, § 3507, subd. (a)(6), (a)(7).) In order to be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (Int’l Federation of Professional & Technical Eng’rs, Local 21 v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.)

The MMBA affords both employee and non-employee representatives of employee organizations access to areas in which employees work, subject to reasonable employer regulation. (County of Orange (2018) PERB Decision No. 2611-M, p. 3 (Orange); County of Riverside (2012) PERB Decision No. 2233-M, p. 8.) Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drafted to avoid overbroad, unnecessary interference with the exercise of statutory rights. (Orange, supra, PERB Decision No. 2611-M, p. 3.) Moreover, an otherwise lawful rule will violate the MMBA if its language or application singles out union or other protected activities, as compared to non-protected activities. (Orange, supra, PERB Decision No. 2611-M, pp. 3-4; Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 8; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 50.)

Challenged local rule stated: “Employee organizations or any of their members shall neither directly nor indirectly [¶ . . . ¶] [e]ngage in organizing activities, including distribution of literature within County buildings.” PERB found such rule inconsistent with the MMBA because it is both discriminatory and overbroad. The rule was discriminatory because it explicitly addressed only protected activities, and there was no evidence that County had a comparable rule restricting employees from soliciting others, or engaging in organizing or publicity in the workplace, about issues or organizations unrelated to protected employee or union rights. The rule was overbroad because by its terms because it included both nonwork times and nonwork areas. The County violated the MMBA by maintaining the rule, irrespective of whether it enforced the rule.

“A categorical prohibition against distributing literature or other means of communication interferes 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.” (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 44, emphasis in original.) Such a rule must not only be nondiscriminatory in language and in application, it must also permit protected activities in nonwork times and nonwork areas. (Id. at pp. 45-47.)

The MMBA affords both employee and non-employee representatives of employee organizations access to areas in which employees work, subject to reasonable employer regulation. (County of Orange (2018) PERB Decision No. 2611-M, p. 3 (Orange); County of Riverside (2012) PERB Decision No. 2233-M, p. 8.) Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drafted to avoid overbroad, unnecessary interference with the exercise of statutory rights. (Orange, supra, PERB Decision No. 2611-M, p. 3.) Moreover, an otherwise lawful rule will violate the MMBA if its language or application singles out union or other protected activities, as compared to non-protected activities. (Orange, supra, PERB Decision No. 2611-M, pp. 3-4; Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 8; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 50.)

To be lawful, a rule must not only be nondiscriminatory in language and in application, it must also permit protected activities in nonwork times and nonwork areas. In drafting a prohibition that carves out nonwork time and nonwork areas, an employer should refrain from using vague or overbroad phrases such as “during the workday” or “off school property,” which fail to note explicitly that the prohibition does not apply in those places and times in which the employer tolerates other nonofficial activities, such as during breaks. (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 44-47.)

An employer’s duty of neutrality between internal union factions does not relieve it from continuing to deal in good faith with the bargaining unit’s chosen representatives during the pendency of the internal dispute, and in doing so the employer complies with its duty of neutrality. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 26.) Similarly, a pending rescission petition did not provide a valid ground for the County to deny Union’s information request, as Union’s rights and duties with respect to representing employees continued unchanged during the pendency of a rescission petition.

PERB would likely have found that County’s refusal to provide information during the pendency of a rescission petition to have tainted election conditions, had Union sought to block or overturn an election result. (See, e.g., Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, adopting administrative determination at pp. 19-22 [failure to provide information taints the neutral conditions required for a fair election, as it tends to prevent the union from properly assisting employees, make the union appear weak, increase employees’ dissatisfaction with the union, and otherwise discourage employees from supporting the union].)

A union is presumptively entitled to information that is necessary and relevant to the union in exercising its right to represent bargaining unit employees regarding mandatory subjects of bargaining, including but not limited to discipline, retirement benefits, workplace safety, and hostile work environment issues. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 15-16, citing other authorities.) This presumptive entitlement to information includes the right to receive investigatory reports relating to hostile work environment claims impacting employees the union represents, though PERB may order appropriate redactions where needed. (City of Redding (2011) PERB Decision No. 2190-M, adopting proposed decision at pp. 17-18.) A refusal to provide presumptively necessary and relevant information upon request constitutes a per se violation of the duty to meet and confer in good faith, as well as interference with protected rights. (State of California (Department of Veterans Affairs) (2004) PERB Decision No. 1686-S, adopting proposed decision at p. 18.)

Defenses to disclosure under the California Public Records Act, Gov. Code sec. 6250 et seq. (CPRA), cannot be imported into labor law, because a union has a greater right to information than members of the general public. (Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 10-11.) Thus, while the CPRA prevents members of the public from obtaining a public entity’s internal deliberative records pertaining to certain of its obligations under California labor law (CPRA, Gov. Code sec. 6254(p)), when a union requests relevant information from an employer, the employer benefits only from the more limited privilege that protects both unions and employers from being forced to reveal to the other party their internal collective bargaining strategies or tactics. (Compare Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113 [adopting the privilege protecting internal discussions regarding strategy for collective bargaining, as set forth in Berbiglia, Inc. (1977) 233 NLRB 1476, 1495] with Trustees of the California State University (2004) PERB Decision No. 1591-H, pp. 2-3 [the deliberative process privilege is not a valid defense to a union’s information request].)

PERB has established the following legal framework covering situations where requested, presumptively relevant documents may contain confidential information that implicates “constitutionally significant privacy rights of third parties”: if a third party possesses a legally protected privacy interest that is based upon an objectively reasonable expectation of privacy, yet the union seeks to invade that privacy in a manner that is serious in both its nature and its scope, then PERB engages in a balancing test; if the serious invasion of privacy outweighs the union’s need for the information, then the union’s presumptive right to relevant information is overcome and narrowly tailored redactions or other accommodations become appropriate. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 13-15, citing County of Los Angeles v. Los Angeles County Employee Relations Commission, et al. (2013) 56 Cal.4th 905, 926, and noting that balancing test applies only if all three elements of a privacy claim exist.) If the circumstances surrounding a union’s request show that third party privacy rights outweigh the union’s presumptive right to information, the employer still may not unilaterally determine how to proceed but must instead negotiate in good faith with the requesting union. (Contra Costa, supra, PERB Decision No. 2652, pp. 18-19; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 12-14.) PERB described several common redaction conventions and other possible accommodations.

An employer may not unilaterally reject an information request based on alleged privacy concerns, as that frustrates the purposes of state labor law “by converting the applicable procedure from a two-way negotiation to a unilateral decision.” (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 19; Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 13.) Where the County flatly denied Union’s request, parties were deprived of the opportunity to work out redactions or a different accommodation. The County waived its privacy concerns by categorically refusing Union’s request instead of offering to meet to seek an accommodation. (Sacramento, supra, PERB Decision No. 2597, p. 12 [employer must raise its confidentiality concerns in a timely manner and then meet with the union to seek an accommodation].

Where an employer has waived its right to negotiate an accommodation of third-party privacy rights with the union, PERB must determine the extent of any appropriate redactions. In most such cases, the best practice is for the ALJ hearing the unfair practice matter to conduct an in camera review and then order production of the full, unredacted document unless there is clear evidence that doing so would lead to a serious invasion of a significant privacy right, in which case the ALJ’s proposed decision should provide clear direction regarding the narrowly tailored redactions that are allowable. Such redactions typically involve replacing names with descriptive but de-identified placeholders, thereby permitting parties to track the important figures within a given record or across multiple records. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 13, fn. 7.)

A union is presumptively entitled to information that is necessary and relevant to the union in exercising its right to represent bargaining unit employees regarding mandatory subjects of bargaining, including but not limited to discipline, retirement benefits, workplace safety, and hostile work environment issues. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 15-16, citing other authorities.) This presumptive entitlement to information includes the right to receive investigatory reports relating to hostile work environment claims impacting employees the union represents, though PERB may order appropriate redactions where needed. (City of Redding (2011) PERB Decision No. 2190-M, adopting proposed decision at pp. 17-18.) A refusal to provide presumptively necessary and relevant information upon request constitutes a per se violation of the duty to meet and confer in good faith, as well as interference with protected rights. (State of California (Department of Veterans Affairs) (2004) PERB Decision No. 1686-S, adopting proposed decision at p. 18.)

A party does not engage in regressive bargaining if it offers a sufficiently credible and rationally supported justification of changed circumstances that explain why it has made a proposal that ostensibly appears to move the parties further away from a resolution. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; City of Arcadia (2019) PERB Decision No. 2648-M, p. 39.)

A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromise—this will typically be true if aggregate movements toward the other party’s position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. (See City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; Charter Oak Unified School District (1991) PERB Decision No. 873, pp. 17-18.) Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items.

Union did not commit a ground rule violation when a Union bargaining team member made a verbal proposal, where the ground rules did not prevent verbal presentations of hypothetical proposals, and permitted either a spokesperson or his or her designee to speak for the bargaining team. Union was not required to reduce its verbal proposal to writing in the short interval between floating the proposal and reaching an overall tentative agreement later that day.

A party does not engage in regressive bargaining if it offers a sufficiently credible and rationally supported justification of changed circumstances that explain why it has made a proposal that ostensibly appears to move the parties further away from a resolution. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; City of Arcadia (2019) PERB Decision No. 2648-M, p. 39.) There were credible and rational changed circumstances supporting Union’s decision to begin covering an additional bargaining unit in its proposals: two months into the negotiations, the County recognized Union as the exclusive representative of the additional bargaining unit.

A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromise—this will typically be true if aggregate movements toward the other party’s position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. (See City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; Charter Oak Unified School District (1991) PERB Decision No. 873, pp. 17-18.) Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items. During the several weeks in which Union allegedly acted in a regressive manner, the parties traded multiple alternative packages, some including resolution of all litigation and some excluding such resolution. County did not meet its burden to show regressive conduct, viz., that Union made regressive new demands that were insufficiently offset by Union’s contemporaneous movements toward compromise.

A complaint included a facial challenge, as it alleged that the County violated the MMBA by “maintaining” the rule, which is a separate act from any alleged enforcement. A facial challenge may be brought at any time where a charging party would risk discipline or other adverse consequences if it were to violate the rule. (City and County of San Francisco (2017) PERB Decision No. 2536-M, pp. 14-15 & fn. 12.)

The ALJ erroneously denied the County’s motion to amend complaint to allege that Union violated bargaining ground rules, which County brought prior to resting its case-in-chief. (See, e.g., Contra Costa Community College District (2019) PERB Decision No. 2669, p. 9 [Even though charging party had rested his case, under PERB’s liberal amendment rules the ALJ should have allowed him to amend the complaint and reopen his case-in-chief, while granting an appropriate continuance if needed to prevent undue prejudice to the responding party].) The Board noted two related principles: (i) The County had no need to amend its complaint, if it sought only to add violation of ground rules as an additional indicator of bad faith, because the complaint need not list all such indicia; and (ii) If the County sought to allege violation of ground rules as an independent violation, then the County could either amend the complaint or satisfy the unalleged violation doctrine. (City of Davis (2018) PERB Decision No. 2582-M, p. 13.) Thus, the County had the right to raise its additional allegation in each of three separate ways—as an indicia of bad faith that need not be spelled out in the complaint, as an amendment to the complaint to assert an independent violation (which the ALJ should have granted), and potentially also as an unalleged independent violation if the unalleged violation doctrine was satisfied.

PERB Regulation 32647 requires a charging party to file an amended charge with its request to amend the complaint, if and only if its request comes before the hearing begins. Union did not file an amended charge with its motion, and thereafter Union neither remedied this deficiency nor renewed its motion orally during the hearing, when there would have been no need to file an amended charge. (PERB Regulation 32648.) Accordingly, ALJ’s denial of motion to amend complaint was procedurally correct.

An exclusive representative has a right to engage in direct and indirect advocacy with an employer’s elected and unelected officials, up to and including the employer’s highest levels, provided that the exclusive representative does not make new collective bargaining proposals that the exclusive representative has not already made in negotiations with the employer’s chosen bargaining team. (Anaheim Union High School District (2015) PERB Decision No. 2434, pp. 52-53; Westminster School District (1982) PERB Decision No. 277, p. 10; San Ramon Valley Unified School District (1982) PERB Decision No. 230, pp. 16-18.) Union representative’s e-mails to County’s Board of Supervisors were protected advocacy and not impermissible direct dealing, where Union representative’s e-mails did not present any proposals that the Union had not already made in negotiations or advocate for contract terms differing materially from previous Union proposals. (PARTIALLY OVERRULING County of Inyo (2005) PERB Decision No. 1783-M, to extent it found that union engaged in direct dealing during a presentation to the employer’s board where there was no allegation that the union made new proposals from those union sought in bargaining during the presentation.)