Decision 2895M – * * * JUDICIAL APPEAL PENDING * * * Palomar Health

PERB’s jurisdiction preempts a court’s jurisdiction if the conduct at issue is “arguably protected” or “arguably prohibited” by a labor relations statute administered by PERB and the controversy presented to the state court “may fairly be termed the same” as that presented to PERB. (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 953-960 (El Rancho); accord Pittsburg Unified School Dist. v. California School Employees Assn. (1985) 166 Cal.App.3d 875, 887.) Preemption prevents and avoids “‘conflicting adjudications which may interfere with [a labor] board’s ability to carry out its statutory role.’” (El Rancho, supra, 33 Cal.3d at pp. 960-961, citing Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 75.) “In deciding whether something is an unfair labor practice, and whether PERB consequently has exclusive jurisdiction to hear a matter (Gov. Code, § 3563.2), [the courts] consider the underlying conduct on which the suit is based rather than a superficial reading of the pleadings.” (Teamsters Local 2010 v. Regents of University of California (2019) 40 Cal.App.5th 659, 669.)

The Court of Appeal articulated its reasons for finding that the employer’s lawsuit in a corollary to this unfair practice charge was preempted by the MMBA, and properly adjudicated at PERB: “[t]he conduct at issue, i.e. the alleged trespass by CNA and CHEU representatives within [Escondido Medical Center] and leafletting at the hospital’s entrance, will be adjudicated by PERB as either protected or unprotected by the parties’ agreement and the MMBA. This is the identical question presented before the trial court in this litigation. There is unquestionably a risk of conflicting decisions in these two competing forums. Because the questions are the same, we agree with the unions that PERB has exclusive jurisdiction of this dispute.” (Palomar Health v. National Nurses United (2023) 97 Cal.App.5th 1189, 1208.)

Where a charging party alleges that a respondent has interfered with or retaliated against protected activities via litigation-related conduct, PERB applies the principles articulated in Bill Johnson’s Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, thereby following “a qualified litigation privilege that preserves parties’ ability to litigate colorable legal rights while disallowing baseless, bad faith conduct that tends to harm protected labor rights.” (Victor Valley Union High School District (2022) PERB Decision No. 2822, p. 10 (Victor Valley).) Under these principles, the charging party must prove that the respondent acted without any reasonable basis and for an unlawful purpose. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 11.) Here, the Board applied the traditional Bill Johnson’s analysis, and concluded that the entirety of the employer’s lawsuit, which alleged trespassing and unlawful picketing and sought to ban union representatives from non-work areas of a public medical center, was without a reasonable basis and for an unlawful purpose, and thus constituted interference.

An employer must allow an exclusive representative reasonable access to employer property to communicate with bargaining unit employees, distribute literature, investigate workplace conditions, and assess contractual and statutory compliance. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 26-39 (San Joaquin).) An employer bears the burden of proving that a restriction on access to its premises is: (1) necessary to safe or efficient operations; and (2) narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (Id. at p. 27.) These principles apply irrespective of whether the person seeking access is a bargaining unit member or a union representative who does not work for the employer. (Ibid.) An employer generally does not afford reasonable access if it infringes on an employee’s ability to engage in protected activity either in a nonwork area or during a nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 19-20; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 45-47 (Petaluma).) Even if a workplace includes sensitive areas focused on national defense, acute patient care, or social services, the employer must narrowly tailor its rules and afford access to the fullest degree possible given its unique constraints. (San Joaquin, supra, PERB Decision No. 2775-M, pp. 28, 33-34, 38-39.) In assessing an employer’s claim that it has narrowly tailored its rule to a particularized operational need, PERB considers whether the rule allows access to alternative venues that are a reasonable substitute for the restricted venue. (San Joaquin, supra, PERB Decision No. 2775-M, p. 29.)

Foundational labor law principles under each PERB-administered labor relations statute protect nondisruptive picketing (San Marcos Unified School District (2003) PERB Decision No. 1508, p. 27 (San Marcos USD)), as well as “leafleting to advertise a labor dispute” (Regents of the University of California (2012) PERB Decision No. 2300-H, pp. 3 & 16). As summarized in Petaluma, supra, PERB Decision No. 2485, both unions and employees engage in protected activity when they conduct “peaceful picketing” or “distribution of leaflets or other materials to advertise grievances or solicit support from employees and the public.” (Id. at p. 43.)

Here, the employer’s policy appeared to be a neutral rule in that it bans all solicitation and distribution, whether union or otherwise. But the Board found it unlawful on its face, because it was not limited to patient care areas and prohibited union representatives from engaging in solicitation and distribution in nonwork areas and during nonwork times. The Board also found the policy unlawful as applied, because the employer failed to show that its rules were necessary for safe or efficient operations, and because the record overwhelmingly disproved any possibility that its rules are narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (pp. 28-34.)

An employer must allow an exclusive representative reasonable access to employer property to communicate with bargaining unit employees, distribute literature, investigate workplace conditions, and assess contractual and statutory compliance. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 26-39 (San Joaquin).) An employer bears the burden of proving that a restriction on access to its premises is: (1) necessary to safe or efficient operations; and (2) narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (Id. at p. 27.) These principles apply irrespective of whether the person seeking access is a bargaining unit member or a union representative who does not work for the employer. (Ibid.) An employer generally does not afford reasonable access if it infringes on an employee’s ability to engage in protected activity either in a nonwork area or during a nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 19-20; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 45-47 (Petaluma).) Even if a workplace includes sensitive areas focused on national defense, acute patient care, or social services, the employer must narrowly tailor its rules and afford access to the fullest degree possible given its unique constraints. (San Joaquin, supra, PERB Decision No. 2775-M, pp. 28, 33-34, 38-39.) In assessing an employer’s claim that it has narrowly tailored its rule to a particularized operational need, PERB considers whether the rule allows access to alternative venues that are a reasonable substitute for the restricted venue. (San Joaquin, supra, PERB Decision No. 2775-M, p. 29.)

Foundational labor law principles under each PERB-administered labor relations statute protect nondisruptive picketing (San Marcos Unified School District (2003) PERB Decision No. 1508, p. 27 (San Marcos USD)), as well as “leafleting to advertise a labor dispute” (Regents of the University of California (2012) PERB Decision No. 2300-H, pp. 3 & 16). As summarized in Petaluma, supra, PERB Decision No. 2485, both unions and employees engage in protected activity when they conduct “peaceful picketing” or “distribution of leaflets or other materials to advertise grievances or solicit support from employees and the public.” (Id. at p. 43.)

Here, the employer’s policy appeared to be a neutral rule in that it bans all solicitation and distribution, whether union or otherwise. But the Board found it unlawful on its face, because it was not limited to patient care areas and prohibited union representatives from engaging in solicitation and distribution in nonwork areas and during nonwork times. The Board also found the policy unlawful as applied, because the employer failed to show that its rules were necessary for safe or efficient operations, and because the record overwhelmingly disproved any possibility that its rules are narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (pp. 28-34.)

An employer must allow an exclusive representative reasonable access to employer property to communicate with bargaining unit employees, distribute literature, investigate workplace conditions, and assess contractual and statutory compliance. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 26-39 (San Joaquin).) An employer bears the burden of proving that a restriction on access to its premises is: (1) necessary to safe or efficient operations; and (2) narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (Id. at p. 27.) These principles apply irrespective of whether the person seeking access is a bargaining unit member or a union representative who does not work for the employer. (Ibid.) An employer generally does not afford reasonable access if it infringes on an employee’s ability to engage in protected activity either in a nonwork area or during a nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 19-20; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 45-47 (Petaluma).) Even if a workplace includes sensitive areas focused on national defense, acute patient care, or social services, the employer must narrowly tailor its rules and afford access to the fullest degree possible given its unique constraints. (San Joaquin, supra, PERB Decision No. 2775-M, pp. 28, 33-34, 38-39.) In assessing an employer’s claim that it has narrowly tailored its rule to a particularized operational need, PERB considers whether the rule allows access to alternative venues that are a reasonable substitute for the restricted venue. (San Joaquin, supra, PERB Decision No. 2775-M, p. 29.)

Foundational labor law principles under each PERB-administered labor relations statute protect nondisruptive picketing (San Marcos Unified School District (2003) PERB Decision No. 1508, p. 27 (San Marcos USD)), as well as “leafleting to advertise a labor dispute” (Regents of the University of California (2012) PERB Decision No. 2300-H, pp. 3 & 16). As summarized in Petaluma, supra, PERB Decision No. 2485, both unions and employees engage in protected activity when they conduct “peaceful picketing” or “distribution of leaflets or other materials to advertise grievances or solicit support from employees and the public.” (Id. at p. 43.)

Here, the employer’s policy appeared to be a neutral rule in that it bans all solicitation and distribution, whether union or otherwise. But the Board found it unlawful on its face, because it was not limited to patient care areas and prohibited union representatives from engaging in solicitation and distribution in nonwork areas and during nonwork times. The Board also found the policy unlawful as applied, because the employer failed to show that its rules were necessary for safe or efficient operations, and because the record overwhelmingly disproved any possibility that its rules are narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (pp. 28-34.)

An employer engages in unlawful surveillance when the employer photographs or videotapes employees or openly engages in recordkeeping of employees participating in union activities. (Lake Tahoe Unified School District (1999) PERB Decision No. 1361, adopting warning letter at p. 2.) “Photographing and recordkeeping are proscribed because of their ‘tendency to intimidate.’” (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20.) Here, the Board found that the employer engaged in unlawful surveillance when it photographed union representatives interacting with bargaining unit employees in front of the main entrance to a medical center and when, during a meeting of union representatives and bargaining unit members in the medical center’s cafeteria, it created the impression that it was transmitting, and possibly recording, audio. (pp. 42-48.)

An employer engages in unlawful surveillance when the employer photographs or videotapes employees or openly engages in recordkeeping of employees participating in union activities. (Lake Tahoe Unified School District (1999) PERB Decision No. 1361, adopting warning letter at p. 2.) “Photographing and recordkeeping are proscribed because of their ‘tendency to intimidate.’” (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20.) Here, the Board found that the employer engaged in unlawful surveillance when it took and saved 39 photographs of union representatives interacting with bargaining unit employees in front of the main entrance to a medical center. (pp. 42-47.)

An employer engages in unlawful surveillance when the employer photographs or videotapes employees or openly engages in recordkeeping of employees participating in union activities. (Lake Tahoe Unified School District (1999) PERB Decision No. 1361, adopting warning letter at p. 2.) “Photographing and recordkeeping are proscribed because of their ‘tendency to intimidate.’” (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20.) Here, the Board found that the employer engaged in unlawful surveillance when it, created the impression that it was transmitting, and possibly recording, audio during a meeting of union representatives and bargaining unit members in the medical center’s cafeteria. (pp. 42-48.)

The employer failed to meet its burden to establish waiver. As a defense to its decision to limit access rights, the employer argued that when the unions agreed in their respective CBAs that each of them “shall designate up to two (2) authorized representatives who shall be granted access to Palomar Health facilities during hours of operation for the purposes of ensuring compliance with the [CBA], adjusting grievances, and updating [union] bulletin boards,” they waived their statutory right to leaflet or table in various non-work areas of a medical center. These arguments failed because the blanket prohibition against solicitation and distribution of literature, without any demonstrated reasonable alternatives, seriously impaired employees’ rights to communicate about union matters and thus could not be waived as a matter of law; because an agreement to grant access to a specific number of representatives for specific reasons does not clearly and unmistakably indicate that the unions waived access for other representatives or for other protected reasons; and because ample record evidence of the parties’ practices under the CBAs included regular leafletting and tabling in the areas the employer then asserted such activities were not allowed, further confirming that the unions did not clearly waive their statutory access rights. (pp. 34-37.)

The Board found the employer changed the status quo when it sought an order from the superior court to deny union representatives access to picket, parade, march, stand, sit, walk, or otherwise be present in areas inside or outside of the employer’s facilities, other than the employee parking lot. The record established a unilateral change as both a change in established past practice and a newly created policy or application or enforcement of existing policy in a new way. In the past the unions regularly engaged in protected conduct in the very areas the employer now insisted such activities were disallowed. This past practice was sufficiently “regular and consistent” (or alternately “historic and accepted”) to constitute an established practice. (See Oakland Unified School District (2023) PERB Decision No. 2875, p. 13; Pittsburg Unified School District (2022) PERB Decision No. 2833, p. 12.) Moreover, the employer also created a new policy or applied or enforced policy in a new way when it for the first time sought to block the Unions from non-patient areas. (pp. 37-41.)

The Board affirmed the ALJ’s conclusion that a make-whole award for the unions must include legal expenses because the unions would not have incurred the costs of defending against the lawsuit absent the employer’s unlawful conduct, viz. interfering with protected rights by pursuing a lawsuit seeking to ban union representatives from various non-work areas of its property. Calculating such expense based on the lodestar rate is consistent with Board precedent. The unions were to have an opportunity to establish in compliance proceedings that they suffered losses from the employer’s various proven unlawful conduct. The Board denied the unions’ request for legal fees and costs as sanctions. (pp. 63-67.)