Decision 2736M – City of Santa Maria

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.” Here, the employer’s practice of promoting fire captains from within the rank-and-file had all the attributes of a binding past practice because it constituted the longstanding, accepted status quo. (Pages 17-18.)

An employer cannot rely on its own municipal code or ordinances to establish that a union waived its right to bargain about a subject within the scope of representation. (Pages 18-20.

Following County of Orange (2019) PERB Decision No. 2663-M, the Board concluded that promotional opportunities are generally mandatory subjects of negotiation. This was especially true in this instance because the City’s decision to open the fire captain recruitment to outside candidates directly implicated workplace safety concerns. (Pages 20-24.)

A communication is presumptively protected under the MMBA if its central purpose is to apprise others of a workplace dispute and to enlist their support. Here, the union used its statewide federation to communicate with firefighters in other departments and dissuade them from applying for a fire captain position because the union believed the city’s decision to open the recruitment to outside candidates violated the MMBA. (Page 26.)

Employer could not establish that suspected employee misconduct prompted it to investigate employees and their protected activities. There was no evidence that the employees’ protected activities, viz. issuing a “do not apply” communication to firefighters in outside departments, resulted in any disruption to the employer’s operations. Many protected concerted activities are undertaken for the purpose of disrupting the employer’s unfair practices and operations. In the absence of evidence that such activities “create a substantial and imminent threat to the health or safety of the public” (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564, 586) there is no basis to believe that a communication like the one at issue here was rendered unprotected by its alleged success. (Page 28.)

Employer could not establish that suspected employee misconduct prompted it to investigate employees and their protected activities. There was no evidence that the employees’ protected activities, viz. issuing a “do not apply” communication to firefighters in outside departments, resulted in any disruption to the employer’s operations. Many protected concerted activities are undertaken for the purpose of disrupting the employer’s unfair practices and operations. In the absence of evidence that such activities “create a substantial and imminent threat to the health or safety of the public” (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564, 586) there is no basis to believe that a communication like the one at issue here was rendered unprotected by its alleged success. (Page 28.)

A disciplinary investigation initiated in response to protected activities can constitute an adverse action for purposes of establishing unlawful discrimination under the MMBA. (Pages 28-31.)

An employer’s failure to give the assurances enumerated in Johnnie’s Poultry Company (1964) 146 NLRB 770, enf. den. (8th Cir. 1965) 344 F.2d 617, before interrogating an employee about protected activities is evidence that the interrogation/investigation constituted a retaliatory adverse action. (Pages 29-31.)