Decision 2775M – County of San Joaquin

The Board reviews exceptions to a proposed decision de novo. Under this standard of review, the Board is free to draw its own, and perhaps contrary, inferences from the evidence presented, and form its own conclusions. (p. 19.)

“Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content.” (People v. Sanchez (2016) 63 Cal.4th 665, 674-675.) Hearsay is defined by the Evidence Code as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), emphasis added.) “Senate committee comments to Evidence Code section 1200 explain that a statement ‘offered for some purpose other than to prove the fact stated therein is not hearsay.’” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675, quoting Sen. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3.) A “statement” may be either an “oral or written verbal expression” or the “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675, quoting Evid. Code, § 225.) “Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true.” (People v. Sanchez, supra, 63 Cal.4th at pp. 674-675.) (pp. 19-20)

Testimony regarding an out-of-court statement that is not offered to prove the truth of the matter asserted is not hearsay. (People v. Sanchez, supra, 63 Cal.4th at p. 674; People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1019.) “Where the fact that a particular statement was made is of itself a relevant fact, regardless of the truth or falsity of such statement, the statement is admissible in evidence as an independently relevant fact[,]” and the hearsay rule does not apply because the statement is akin to a verbal act. (Store of Happiness v. Carmona & Allen, Inc. (1957) 152 Cal.App.2d 266, 274; see Smith v. Whittier (1892) 95 Cal. 279, 293-294 [“If the fact sought to be established is that certain words were spoken, without reference to the truth or falsity of the words, . . . the testimony of any person who heard the statement is original evidence, and not hearsay”].) (p. 20.)

Testimony about an access request being denied was offered to show the access denial, not to prove the truth of the reasoning for the denial. Therefore, the testimony was not hearsay but was instead original testimonial evidence sufficient to support a finding. (p. 21.)

Testimony recounting the out of court statements of the Director of the agency would qualify as a party admission because the Director was an agent of the employer. (pp. 22-23.)

A prima facie case of interference is established when a charging party shows the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by the MMBA. (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 42 (Petaluma); see also Carlsbad Unified School District (1979) PERB Decision No. 89, pp. 10-11.) No showing of unlawful motive, purpose, or intent is required. (Petaluma, supra, PERB Decision No. 2485, p. 42.) Once a prima facie case is established, the burden shifts to the employer. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 23 (judicial review pending); Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, pp. 18-19.) 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. (County of San Joaquin, supra, PERB Decision No. 2761-M, p. 23; Contra Costa County Fire Protection District, supra, PERB Decision No. 2632-M, p. 22.) For conduct that is harmful but not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Ibid.) Within the category of actions or rules that are harmful but not inherently destructive, the asserted business need is balanced against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.) When balancing, the stronger the tendency to harm, the greater the respondent’s burden becomes to show its business need was important and that its actions or rules were narrowly tailored to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (p. 24-25.)

Answer setting forth Respondent’s affirmative defense that “its actions were reasonable based upon justifiable business reasons” sufficiently pled the defense that its actions were based on the need to maintain privacy or confidentiality of clients’ personally identifiable information. PERB does not strictly construe pleadings. (p. 26.)

The MMBA affords both employee and non-employee representatives of employee organizations access to areas in which employees work. (County of Tulare (2020) PERB Decision No. 2697-M, p. 18.) A union’s presumptive right of access is subject to reasonable regulation. (Regents of the University of California Lawrence Livermore National Laboratory (1982) PERB Decision No. 212-H, pp. 14-15; State of California (California Department of Corrections) (1980) PERB Decision No. 127-S, p. 6.) It is the employer’s burden to demonstrate that its restriction of a union’s access is reasonable. (Regents of the University of California (2012) PERB Decision No. 2300-H, p. 20, fn. 8.) For an access restriction to be reasonable, the employer must establish two elements: (1) the regulation must be shown to be necessary to the efficient operation of the employer’s business or the safety of its employees and others; and (2) the regulation must be narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. (County of Riverside (2012) PERB Decision No. 2233-M, p. 8 (Riverside); see also Lawrence Livermore, supra, PERB Decision No. 212-H, pp. 13-15 & adopting proposed decision at pp. 51-53; Regents of the University of California, University of California at Los Angeles Medical Center (1983) PERB Decision No. 329-H, pp. 4-6 (UCLA Medical Center).) In other words, the inquiry is “whether the regulations established by the employer are properly related to justifiable concerns about disruption of [the employer’s] mission, and whether the rules are narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights.” (Lawrence Livermore, supra, PERB Decision No. 212-H, p. 15.) (pp. 26-27.)

Access principles are applied uniformly, irrespective of whether a union’s access charge involves employee representatives, non-employee representatives, or a combination. (p. 27.)

Even California public employers providing sensitive services, such as acute patient care and classified national defense research, must narrowly tailor their access rules to avoid overbroad, unnecessary interference with statutory rights. (UCLA Medical Center, supra, PERB Decision No. 329-H, p. 10; Lawrence Livermore, supra, PERB Decision No. 212-H, pp. 13-14 [rejecting employer’s argument that the presumptive right of access either does not apply or is rebutted by national security requirements].) The Board has previously addressed access rights in workplaces that deal with private information, applying the operative test in a fact-intensive inquiry that carefully considers the sensitive work being performed and the safeguards needed to protect such work while still affording statutory rights to the degree possible. (See, e.g., Riverside, supra, PERB Decision No. 2233-M, p. 9; Lawrence Livermore, supra, PERB Decision No. 212-H, p. 14.) (p. 28.)

The availability of non-work areas within or near the workplace where union representatives may meet with employees during their non-work time may be considered when assessing the reasonableness of an employer’s restrictions. (Riverside, supra, PERB Decision No. 2233-M, p. 9.) But the employer must demonstrate “that such alternative venues are a reasonable substitute for more traditional venues.” (Id. at p. 10, citing UCLA Medical Center, supra, PERB Decision No. 329-H.) (p. 29.)

A union’s right to reasonable access includes access to work areas for the purpose of monitoring workplace health and safety conditions. In this regard, an access request is akin to an information request, and there is no dispute that “workplace safety is firmly within the scope of representation.” (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 23, citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 275.) (p. 30.)

Unions have a significant task in evaluating the many complaints and issues that employees bring to them and deciding which ones merit a grievance or other action, and on-site inspection is a critical component of this task. (New Surfside Nursing Home, supra, 322 NLRB at p. 535 [while employees can report information to union representative based on their direct observations, the union is entitled to investigate independently before deciding whether employees have raised a meritorious issue that union should pursue]; Gilberton Coal Co. (1988) 291 NLRB 344, 348 [onsite inspection allows the Union to “determine the current accuracy of the employees[’] allegations” regarding health conditions at the employer’s facility].) (pp. 31-32.)

Access rights are within the scope of representation. (p. 35.)

Because an access request is a form of information request and SEIU made a presumptively appropriate request, the County was obligated not to summarily refuse it but rather to raise any concerns it had and attempt in good faith to reach an agreement. (See, e.g., Tulare, supra, PERB Decision No. 2697-M, pp. 13-14.)

Employer’s failure to mention any privacy concerns when denying union’s access request waived the employer’s ability to raise privacy concern as a defense at hearing. (pp. 35-36.)

Employer’s failure to mention any privacy concerns when denying union’s access request waived the employer’s ability to raise privacy concern as a defense at hearing. (pp. 35-36.)

The MMBA affords both “employee and non-employee representatives of employee organizations alike, access to areas in which employees work.” (Riverside, supra, PERB Decision No. 2233-M, p. 8.) The MMBA does not require employee stewards to shoulder the burden of handling all union matters that require physical access to work areas. (p. 37.)

While PERB lacks the authority to enforce contracts, it may interpret them when necessary to resolve an unfair practice allegation. (pp. 39-40.)

“A union and employer may agree to restrict union activity during paid, non-working time, as long as the restriction does not seriously impair employees’ right to communicate about union matters.” (Omnitrans, supra, PERB Decision No. 2030-M, p. 21.) However, a “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” (p. 40.)

A “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” The party asserting the affirmative defense of waiver carries “the burdens of production and persuasion.” (p. 40.)

Health and safety concerns are a mandatory subject of bargaining. (Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 19.) (p. 41.)

A long line of precedent illustrates that otherwise valid access restrictions nonetheless interfere with protected rights if they are discriminatory in either scope or application. “Whatever the occasion or cause, if the limited intrusion into worktime and work areas is permitted, it cannot be denied for other, equally or less intrusive solicitation or concerted employee activities.” (Petaluma, supra, PERB Decision No. 2485, p. 50.) Indeed, PERB has many times applied these principles to find that rules restricting union activity during working time are impermissible when a similar level of non-business activity is permitted. (County of Orange, supra, PERB Decision No. 2611-M, pp. 3-4; Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, pp. 8-9.) (p. 44.)

An appropriate remedy for employer’s unlawful access restriction includes a cease and desist order and notice posting.