Decision 2835H – Regents of the University of California

To state a prima facie case of a PEDD section 3553, subdivision (b) violation, an exclusive representative must show: (1) the employer’s communication is a “mass communication” that was delivered to multiple recipients; (2) the mass communication is one “concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization”; and (3) the employer did not meet and confer with the exclusive representative about the content of the mass communication before distributing it to employees. (pp. 12-17.)

PERB’s fundamental task in statutory construction is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 20 (Regents); Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 32 (Region 2).) In construing a statute, we first examine the statutory language, “affording the words their ordinary and usual meaning.” (Region 2, supra, PERB Decision No. 2701-I, p. 33.) If the statutory language is clear, we generally assume the Legislature meant what it said. (Ibid.; State of California (Office of the Inspector General) (2019) PERB Decision No. 2660-S, p. 15.) Moreover, we are to give statutes a “reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers.” (Regents, supra, PERB Decision No. 2755-H, p. 20, internal citation omitted.) In doing so, we interpret a statutory provision with “reference to the whole system of which it is a part so that all may be harmonized and have effect.” (Ibid., internal citation omitted; Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14.) We turn to extrinsic aids such as legislative history and the wider historical circumstances of the statute’s enactment only when the plain meaning of a statute is unclear. (Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, pp. 16-17.) (p. 13.)

Any mass communication addressing the general subject matter of union membership or dues is a communication “concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization” under section 3553, subdivision (b), regardless of whether the communication expresses any particular viewpoint on those subjects, or no viewpoint at all. A content neutral mass communication would not provide a defense to a section 3553 violation. (pp. 16-17.)

While section 3550 prohibits certain conduct and communications, section 3553 can apply to communications not prohibited by section 3550, requiring the employer to bargain before issuing them. (p. 16, fn. 9.)

The University failed to prove that Teamsters waived its right to meet and confer over the FAQs. Teamsters did not receive a copy of the FAQs before the University sent them to certain bargaining unit employees. Without advance notice of the entirety of the University’s intended communication to unit employees, Teamsters could not have intentionally relinquished its right to meet and confer over the FAQs. (p. 18.)

A waiver of the statutory right to meet and confer must be “clear and unmistakable,” with the evidence demonstrating an “intentional relinquishment” of the right to bargain. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) An employer asserting a waiver defense must prove that: “(1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38, underline in original.) Because of the notice requirement, “a union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue, until after the employer had already reached a firm decision.” (Regents of the University of California (2018) PERB Decision No. 2610-H, p. 47.)

Under this well-established precedent, the University failed to prove that Teamsters waived its right to meet and confer over FAQs. Teamsters did not receive a copy of the FAQs before the University sent them to certain bargaining unit employees. Without advance notice of the entirety of the University’s intended communication to unit employees, Teamsters could not have intentionally relinquished its right to meet and confer over the FAQs. (See City of Sacramento (2013) PERB Decision No. 2351-M, pp. 39-40 [when the exclusive representative first learns of a unilateral change after it has been implemented, “the ‘notice’ is nothing more than ‘notice’ of a fait accompli and the question of waiver never arises”].) (pp. 18-19.)

A waiver of the statutory right to meet and confer must be “clear and unmistakable,” with the evidence demonstrating an “intentional relinquishment” of the right to bargain. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) An employer asserting a waiver defense must prove that: “(1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38, underline in original.) Because of the notice requirement, “a union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue, until after the employer had already reached a firm decision.” (Regents of the University of California (2018) PERB Decision No. 2610-H, p. 47.)

Under this well-established precedent, the University failed to prove that Teamsters waived its right to meet and confer over FAQs. Teamsters did not receive a copy of the FAQs before the University sent them to certain bargaining unit employees. Without advance notice of the entirety of the University’s intended communication to unit employees, Teamsters could not have intentionally relinquished its right to meet and confer over the FAQs. (See City of Sacramento (2013) PERB Decision No. 2351-M, pp. 39-40 [when the exclusive representative first learns of a unilateral change after it has been implemented, “the ‘notice’ is nothing more than ‘notice’ of a fait accompli and the question of waiver never arises”].) (pp. 18-19.)

To constitute a waiver of the right to meet and confer under Government Code section 3553, the exclusive representative’s communication to unit employees, or the context in which it was made, must clearly indicate that the representative intentionally relinquished its right to bargain over the content of the employer’s communication. Although we do not foreclose a scenario where an employer could successfully assert a waiver defense to section 3553, subdivision (b), the University did not meet its burden to prove such a defense here. (p. 19.)

To constitute a waiver of the right to meet and confer under Government Code section 3553, the exclusive representative’s communication to unit employees, or the context in which it was made, must clearly indicate that the representative intentionally relinquished its right to bargain over the content of the employer’s communication. Although we do not foreclose a scenario where an employer could successfully assert a waiver defense to section 3553, subdivision (b), the University did not meet its burden to prove such a defense here. (p. 19.)

Section 3550 provides that a “public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.” The Board interprets “deter or discourage” as to tend to influence an employee’s free choice regarding whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues or fees. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 21 (Regents).) The test for whether an employer’s communication “tends to influence” is objective. (Id. at p. 24.) The charging party has the burden to show that the communication tends to influence, not that it actually did influence free choice. (Ibid.) We will first examine the content of the communication itself to determine whether it tends to influence employee free choice, and then consider the communication’s context. (Id. at pp. 24-25.) Preliminarily, however, “where a charging party meets its burden to prove an employer violated section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550.” (Id. at p. 37.)

In light of the Board’s conclusion that the University violated section 3553, subdivision (b), it found that the University presumptively violated section 3550 by unilaterally disseminating the FAQs, and that it did not rebut that presumption by establishing the FAQs fell into the “narrow” category of communications that may concern employee rights to choose whether or not to join or support an employee organization but yet not tend to influence employee decisions on those topics. (pp. 20-21.)

Even without the presumptive section 3550 violation borne of the University’s section 3553, subdivision (b) violation, the Board found that Teamsters proved a prima facie case of a section 3550 violation. The FAQs tended to influence employee free choice on several fronts. FAQ 2, by asking “Must I join the Union?,” couches union membership in a negative light as a potential compulsory obligation that an employee might wish to avoid. FAQ 3 suffers from a similar pitfall. The question, “Will I have to pay monthly union dues?,” treats the choice to join a union as a financial burden an employee may wish to avoid, thereby emphasizing the cost of union membership without any mention of the benefits. (See Regents of the University of California (2021) PERB Decision No. 2755-H, p. 41 [University’s FAQ regarding union dues framed the Janus decision only in terms of a financial advantage to agency fee payers, eliding any hint that the right-to-work framework Janus imposed may ultimately reduce compensation and protections].) By highlighting these questions and labeling them as “FAQs,” the University suggested that AO2s commonly ask these questions, or should ask them, rather than asking about membership benefits. Spotlighting these topics to the exclusion of others reduced the accretion, and by extension the choice to join and support Teamsters, to an overall burden. (pp. 21-22.)

Even without the presumptive section 3550 violation borne of the University’s section 3553, subdivision (b) violation, the Board found that Teamsters proved a prima facie case of a section 3550 violation. The context in which the University distributed the FAQs also supports finding that they tend to deter or discourage employee free choice. The University circulated the FAQs within days of the accretion becoming final, which was a crucial period for Administrative Officer IIs (AO2) to decide whether to join Teamsters. The timing was therefore particularly sensitive to influencing employee free choice. Moreover, the Board noted that the unit employees who received the FAQs were part of a group of employees who received a previous University communication that violated section 3550. That prior communication likely tended to color how AO2s perceived the University’s October 2020 FAQs. (p. 22.)

Once a charging party establishes a prima facie section 3550 violation, the burden shifts to the employer to prove a business necessity defense. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 35.) The University asserts that it had a legitimate business purpose for sending the FAQs, namely the Administrative Officer IIs’ (AO2) accretion and “a sudden influx of questions” that were “largely prompted by the Teamsters[’] own communication that it sent on October 16, 2020.” The Board found that the University failed to establish a business necessity defense for circulating its FAQs to employees. Even assuming the University had a business necessity to communicate with its employees about the accretion prior to completing meeting and conferring with Teamsters, it could have sent the statement that the University drafted and Teamsters approved on October 16, which provided the most pertinent information about the accretion: that the AO2s had been accreted into the Clerical and Allied Services Bargaining Unit and that bargaining between Teamsters and the University would begin soon. Not only could that statement be lawfully distributed under section 3553, but it did not have the same tendency to deter or discourage employee choice because it was not drafted in the prejudicial manner of the FAQs.

Furthermore, the University did not prove any urgency to respond to an allegedly high volume of employee inquiries about the accretion. The University’s evidence in support of its business necessity defense consisted of just three employee e-mails. Two employees inquired—after the University sent the FAQs—about whether they were properly classified as AO2s. The third employee asked simply, “Do you know anything about this?” in reference to Teamsters’ welcome e-mail. None of the employees’ questions were about becoming a Teamsters member or paying dues. Moreover, the University’s statement that it “knew there would be questions about joining the union and union dues” belies its own claim that it sent its communication in response to an “influx” of employee queries. The University did not establish that it narrowly tailored its communication to address employees’ actual inquiries about the accretion. (pp. 24-25.)

An employer may attempt to establish a business necessity defense based on an alleged need to correct a union’s inaccurate communication. (See, e.g., Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, pp. 52-75; Regents of the University of California (2021) PERB Decision No. 2756-H, p. 9.) The University did not claim that Teamsters’ communication was inaccurate such that it necessitated a corrective response from the University. Thus, the fact that the University sent its communication in response to Teamsters’ earlier communication does not establish a business necessity defense. (p. 25.)

To obtain reimbursement of attorney fees or other expenses as a litigation sanction, the moving party must demonstrate that the opposing party’s claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7.) To determine whether a claim, defense, motion, or other action is frivolous, we examine whether it is so manifestly erroneous that no prudent representative would have filed or maintained it. (Ibid., citing Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5, and cases cited therein.) To determine whether a party acted with subjective bad faith, we examine whether the party’s conduct was dilatory, vexatious, or otherwise an abuse of process, and we may infer such intent from circumstantial evidence. (Ibid., citing City of Alhambra (2009) PERB Decision No. 2036-M, p. 19.)

Using this standard, the Board denied Teamsters’ request for attorney fees and costs. Although the Board rejected the University’s argument that section 3553 did not apply to its FAQs, it nonetheless found that the University’s position was not without arguable merit considering the Board had not interpreted section 3553 prior to this decision. Because section 3553 lies at the heart of this case, the Board did not find that the University’s litigation position was so manifestly erroneous that no prudent representative would have maintained it. Nor was the University’s section 3550 affirmative defense clearly foreclosed by existing PERB precedent. Given that the University’s legal arguments did not meet the standard of being without arguable merit, the Board did not separately assess whether such arguments were made in bad faith. (pp. 28-29.)