Decision 2770M – City of Bellflower

Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent, where California statutory provisions are akin to those found in federal law, we consider federal precedent for its potential persuasive value. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; Contra Costa Community College District (2019) PERB Decision No. 2652, p. 27, fn. 17; see also Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391 [when interpreting California public sector labor relations laws, federal precedent is a “useful starting point,” but it does “not necessarily establish the limits of California public employees’ representational rights”].)

To establish a prima facie interference case, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes PERB enforces. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on business necessity. (Ibid.) In such cases, PERB balances the asserted business necessity against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business necessity was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at p. 36, fn. 19.)

City violated the MMBA by interfering with protected rights when it shared a competing union’s unredacted proof of support documents with incumbent union. Employees covered by the MMBA have comparable rights to those covered by EERA, which explicitly provides for proof of support confidentiality. There is no adequate basis for distinguishing the need for confidentiality under the two statutes, and disclosing proof of support documents has the same tendency to harm protected rights under the MMBA as it does under EERA and the other statutes PERB enforces.

Employer failed to show a valid business necessity justifying its decision to grant an incumbent union’s request for copies of competing union’s decertification petition proof of support documents, which tends to interfere with protected rights. The request did not establish incumbent union’s ultimate right to the requested documents. Rather, it triggered employer’s duty to assess the request and respond lawfully. Where a union’s request is presumptively relevant but would invade legally protected confidentiality or privacy interests, the employer must bargain with the requesting union to accommodate the union’s interest in the information and the legally protected privacy right. In such negotiations, narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information. Here, the employer did not engage in discussions with either union over the incumbent union’s request for proof of support documents, and the record does not reveal that the employer attempted to weigh countervailing interests. Moreover, the incumbent union did not have a need for the documents that outweighed employee confidentiality interests. Proof of support is a unique type of statement supporting a union, which labor law principles have long protected, both in the private sector and in the California public sector since the Legislature enacted a bill to reverse San Juan Unified School District (1977) EERB Decision No. 12.

MMBA section 3506.5, subdivision (d) consists of three clauses, providing that public agencies shall not: (1) “dominate or interfere with the formation or administration of any employee organization,” (2) “contribute financial or other support to any employee organization,” or (3) “in any way encourage employees to join any organization in preference to another.” PERB has consistently held that this provision requires an employer to remain strictly neutral when two unions are in competition with one another. The test is “whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other.” Thus, a strict neutrality violation requires neither proof of the employer’s motive nor proof that the employer conduct did, in fact, influence employees. (County of San Bernardino (2018) PERB Decision No. 2556-M, adopting proposed decision at p. 22.) An employer does not tend to tilt the scales toward or away from a union if it merely complies with its legal duty to provide information, or, conversely, honors legally protected privacy rights by instead negotiating an appropriate accommodation of privacy and the union’s need for the information. In this case, however, the employer deviated from such an approach and thereby tilted the scales toward the incumbent union.

The MMBA grants local public agencies authority to adopt reasonable rules concerning union recognition, elections, and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (MMBA, § 3507, subd. (a).) However, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers 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 Board need not resolve exceptions that would not affect its remedial order. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) Moreover, the parties’ dispute about timing of representation petition processing involves at most minor deviations from City’s local rules during the initial months of the COVID-19 pandemic, which the Board found unlikely to recur. (See Gompers Preparatory Academy (2021) PERB Decision No. 2765, p. 14 [discussing the pandemic’s severe and unusual disruptions to all aspects of life, including labor relations proceedings].)

Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.)

Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.) Among these statutes, only the Educational Employment Relations Act (EERA; § 3540 et seq.) and the Childcare Provider Act (CCPA; Educ. Code, § 8430 et seq.) explicitly provide that proof of support documents are confidential. (EERA, § 3544, subd. (b); Educ. Code, § 8434, subd. (c)(3) [CCPA].) Nonetheless, through rulemaking PERB has interpreted all nine statutes as requiring that proof of support documents filed with PERB are confidential. The differences in statutory wording require harmonization, and accordingly that all California labor relations statutes require confidentiality for proof of support documents. An employer may not apply its local rules in a contrary manner.

All California labor relations statutes require confidentiality for proof of support documents, and an employer may not apply its local rules in a contrary manner. Given that relevant protected rights are substantially the same under the MMBA and under EERA, which explicitly provides that proof of support documents are confidential (EERA, § 3544, subd. (b)), there is no plausible basis for the Legislature to believe that in one instance proof of support may be shared with a competing union while in the other instance such sharing is impermissible. The absence of confidentiality language in seven of the nine statutes PERB enforces is incidental, meaning that confidentiality is required as it is necessary to protect other rights in the statute.