Decision 2782M – Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.)

SA-CO-144-M, SA-CO-145-M, and SA-CO-146-M

Decision Date: July 26, 2021

Decision Type: PERB Decision

Description: Three consolidated complaints alleged that Operating Engineers Local Union No. 3, which represents a bargaining unit at the Sacramento-Yolo Mosquito & Vector Control District, violated the MMBA by interfering with the rights of three District employees. The complaints specifically alleged that Local 3 interfered with protected rights when it submitted a public records request asking for, among other items, certain e-mails that Charging Parties sent or received over a 15-week period. After receiving cross-motions for summary judgment, the ALJ found Local 3 liable for the violations as alleged in the complaints.

Disposition: The Board reversed and dismissed the complaints and underlying charges. The Board held that where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. The Board found undisputed facts showing that Local 3’s request was not baseless, and the Board therefore found no need to reach any other issue.

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Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, PERB considers federal precedent for its potential persuasive value. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; City of Commerce (2018) PERB Decision No, 2602-M, pp. 9-11; 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”]; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 40 & 45-48 (judicial appeal pending) [considering private sector labor law precedent for its persuasive value while noting certain differences in California public sector labor law precedent]; City of Bellflower (2020) PERB Order No. Ad-480-M, p. 11 [both “statutory differences and distinct principles relevant to agencies serving the public” have “frequently led the Board to craft sui generis precedent”].)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 9-10.) PERB applies these principles because it finds persuasive a private sector labor law decision, Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731 (Bill Johnson’s), which protects labor rights while also preserving parties’ ability to pursue colorable litigation in good faith. Bill Johnson’s principles are thus akin to litigation privilege principles, though less absolute. (See Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 14.) By following Bill Johnson’s, PERB applies a qualified litigation privilege rather than the nearly absolute privilege set forth in Civil Code section 47, subdivision (b), preserving parties’ ability to litigate colorable legal rights while disallowing baseless, bad faith conduct that tends to harm protected labor rights. (County of Riverside (2018) PERB Decision No. 2591-M, p. 7, fn. 5; see generally Zerger et al., editors, California Public Sector Labor Relations (2d ed. 2021) § 13.15.) Applying these qualified principles helps to assure that California’s labor laws are not rendered ineffective. (Cf. People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

The California Public Records Act (CPRA; Gov. Code § 6250 et seq.) was enacted “for the explicit purpose of ‘increasing freedom of information.’” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, internal citations omitted.) Invoking the CPRA—whether via litigation or via correspondence that could lead to litigation—normally should not constitute interference except where such acts are baseless and taken in bad faith, as set forth in Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

MMBA Section 3502 protects employee rights to form, join, and participate in union activities, or to refrain from doing so, and MMBA Section 3506 prohibits interference with such employee rights. To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes we enforce. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) A charging party normally need not establish that the respondent held an unlawful motive. (Ibid.) Once a charging party has established a prima facie case, the burden shifts to the respondent. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the respondent 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 harmful but not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, we balance the asserted need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find 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 need 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.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

PERB applies its interference test to both employer and union respondents. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and 8 American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23 (San Jose/Evergreen).) However, because a union generally lacks control over the employer-employee relationship, it will normally have less capacity to coerce or chill employees from exercising their rights. (Ibid.; see also Hartnell Community College District (2015) PERB Decision No. 2452, p. 25; City of Oakland (2014) PERB Decision No. 2387-M, p. 25, fn. 5; Oxnard Federation of Teachers (Collins) (2012) PERB Decision No. 2266, adopting warning letter at p. 6; California Faculty Association (Hale et al.) (1988) PERB Decision No. 693-H, adopting warning letter at p. 5.) Furthermore, except in cases alleging that a union failed to establish or follow reasonable membership restrictions or disciplinary procedures impacting membership, a charging party must allege facts showing that the union’s conduct impacted the employer-employee relationship. (San Jose/Evergreen, supra, PERB Decision No. 2744, pp. 17-18 & fn. 8.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 9-10.) PERB applies these principles because it finds persuasive a private sector labor law decision, Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731 (Bill Johnson’s), which protects labor rights while also preserving parties’ ability to pursue colorable litigation in good faith. Bill Johnson’s principles are thus akin to litigation privilege principles, though less absolute. (See Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 14.) By following Bill Johnson’s, PERB applies a qualified litigation privilege rather than the nearly absolute privilege set forth in Civil Code section 47, subdivision (b), preserving parties’ ability to litigate colorable legal rights while disallowing baseless, bad faith conduct that tends to harm protected labor rights. (County of Riverside (2018) PERB Decision No. 2591-M, p. 7, fn. 5; see generally Zerger et al., editors, California Public Sector Labor Relations (2d ed. 2021) § 13.15.) Applying these qualified principles helps to assure that California’s labor laws are not rendered ineffective. (Cf. People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.08000 – Other

Complaint alleged that union interfered with protected rights of three special District employees when it submitted a public records request asking for, among other items, certain e-mails that charging parties sent or received over a 15-week period. Where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. (Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731.) The Board found undisputed facts showing that union’s request was not baseless, and the Board therefore found no need to reach any other issue.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.08000 – Other

The California Public Records Act (CPRA; Gov. Code § 6250 et seq.) was enacted “for the explicit purpose of ‘increasing freedom of information.’” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, internal citations omitted.) Invoking the CPRA—whether via litigation or via correspondence that could lead to litigation—normally should not constitute interference except where such acts are baseless and taken in bad faith, as set forth in Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731. Union’s CPRA request was not baseless where precedent does not clearly demonstrate whether union sought records that were exempt, in whole or in part, pursuant to CPRA section 6254, subdivision (c) and section 6255, subdivision (a). Furthermore, charging parties failed to object to disclosure after receiving Marken notices, which provided them with notice of the pending CPRA request and the opportunity to file a “reverse-CPRA” lawsuit seeking to restrict disclosure, or to otherwise suggest that any part of the request was overbroad. (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250.) After charging parties failed to raise any issue, the District proceeded to produce the documents, and as a result, the union’s request was 100 percent successful.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

A Board agent may issue a decision without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 13.)

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

After receiving cross-motions for summary judgment, the ALJ found respondent union liable for the violations as alleged in the complaints. The Board reversed and dismissed the complaints and underlying charges. Union pointed to sufficient undisputed facts to demonstrate that charging parties could not prevail in their interference claims. The Board held that where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. The Board found undisputed facts showing that union’s request was not baseless, making a formal hearing unnecessary.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.15000 – Privileged Communications

Because the statutory litigation privilege is not an evidentiary privilege, it does not bar a court from admitting into evidence statements made during an official proceeding. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [noting that the statutory litigation privilege “does not create an evidentiary privilege” and that “when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent”].)