Decision 2905M – Consolidated Irrigation District

SA-CE-1231-M

Decision Date: June 24, 2024

Decision Type: PERB Decision

Description:  The complaint alleged that Respondent Consolidated Irrigation District violated the Meyers-Milias-Brown Act by interfering with the protected rights of employees and Charging Party Operating Engineers Local 3, AFL-CIO (OE3), dominating or interfering with OE3’s administration, and failing and refusing to meet and confer in good faith with OE3. As to the interference allegations, the complaint specifically alleged two claims: (1) that District agents held at least one meeting with an OE3 member to discuss instructions for talking to other unit members about executing a decertification petition and promising unit members that they would receive a raise in exchange for decertifying OE3; and (2) that a District employee, whether by actual, apparent, or ratified authority, or coercion, solicited signatures from OE3 members to support a petition to decertify OE3; informed unit members that they would receive a pay raise in exchange for their signatures in support of OE3’s decertification; and submitted to PERB a petition in Case Number SA-DP-284-E, seeking to decertify OE3 as the exclusive representative of the unit. The complaint further alleged a violation of the Prohibition on Public Employers Deterring or Discouraging Union Membership. After a formal hearing, the administrative law judge sustained the bad faith bargaining claim and dismissed the remaining allegations.

Disposition:  The Board affirmed the proposed decision as supplemented by additional discussion and adjusted the remedial order.

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Decision Headnotes

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.04000 – Blocking Charge

A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3, fn. 3, quoting City of Fremont (2013) PERB Order No. Ad-403-M, p. 6, fn. 11.) (p. 12, fn. 7.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

The hearsay exception for contemporaneous declarations under Evidence Code section 1240 requires that “(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.” Even assuming that the September 2021 staff meeting was a sufficiently startling occurrence, an OE3 witness’ text message about a manager referring to a particular employee as “shop and yard foreman” is not spontaneous and unreflecting as she did not send it until at least two hours after the meeting ended. (See Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1169 [“spontaneous” means “actions undertaken without deliberation or reflection”]; People v. Merriman (2014) 60 Cal.4th 1, 64 [spontaneous utterance is one in which “the reflective faculties may be stilled”].) Because OE3 did not offer any non-hearsay evidence to corroborate its witness’ testimony regarding the September 2021 meeting, her testimony cannot support a finding that the manager referred to the employee as “shop and yard foreman.” (pp. 17-18.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.16000 – Adverse Inferences

The Board declined OE3’s invitation to draw an adverse inference against the District under Evidence Code section 413, which provides that “[i]n determining what inferences to draw from the evidence or facts in the case against a party, a trier of fact may consider . . . the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him.” OE3 argues that the Board should draw an adverse inference because the District failed to call a particular manager as a witness to testify regarding the statements an employee witness attributed to him, and that failure “itself leads to the inference that his testimony would not have contradicted the other witnesses’ accounts.” (Alliance Environmental Science and Technology High School et al. (2020) PERB Decision No. 2717-E, p. 23; see Regents of the University of California (1987) PERB Decision No. 640-H, adopting proposed decision at pp. 88-90.) But by calling three different employees to testify, the District presented evidence within its control that directly controverted the witness’ account on a disputed material fact. The Board therefore found that an adverse inference is not appropriate. (p. 19.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

“[A] hearing officer who has observed the testimony of witnesses under oath is better positioned than the Board itself to make credibility determinations based on observational factors, such as the demeanor, manner, or attitude of witness[es].” (State of California (Department of Social Services) (2019) PERB Decision No. 2624-S, p. 11.) For that reason, the Board deferred to the ALJ’s ultimate credibility determination regarding the specifics of a meeting between Irrigation Specialists and management, despite disavowing the language the ALJ used to characterize a particular witness’ demeanor. (p. 19.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

“[A] hearing officer who has observed the testimony of witnesses under oath is better positioned than the Board itself to make credibility determinations based on observational factors, such as the demeanor, manner, or attitude of witness[es].” (State of California (Department of Social Services) (2019) PERB Decision No. 2624-S, p. 11.) For that reason, the Board deferred to the ALJ’s ultimate credibility determination regarding the specifics of a meeting between Irrigation Specialists and management, despite disavowing the language the ALJ used to characterize a particular witness’s demeanor. (p. 19.)

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

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 protected union and/or employee rights. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36 (San Diego).) A charging party need not establish that the employer acted because of an unlawful motive. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 20.) If a charging party establishes a prima facie case, the burden shifts to the employer. (San Diego, supra, PERB Decision No. 2747-M, p. 36.) 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 operational necessity. (Ibid.) In such cases, PERB balances the asserted business need 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 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 pp. 36-37, fn. 19.) (pp. 20-21.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.18000 – Review of Findings Not Excepted To

Findings not excepted to are not before the Board but remain final and binding on the parties. (p. 20, fn. 11.)

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.01000 – In General

“Agency is employed to impose liability on the charged party for the unlawful acts of its employees or representatives even when the principal is not at fault and takes no active part in the action.” (City of San Diego (2015) PERB Decision No. 2464-M, adopting proposed decision at p. 39, affd. sub nom. Boling v. Public Employment Relations Board (2018) 5 Cal.5th 898; Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, p. 44 [judicial appeal pending].) “Although labor boards adhere to common law principles of agency, they routinely apply these principles with reference to the broad, remedial purposes of the statutes they administer, rather than by strict application of concepts governing an employer’s responsibility to third parties for the acts of its employees.” (City of San Diego (2020) PERB Decision No. 2747-M, p. 15; Trustees of the California State University (2014) PERB Decision No. 2384-H, p. 40; International Ass’n of Machinists, Tool and Die Makers Lodge No. 35 v. National Labor Relations Board (1940) 311 U.S. 72, 88.) The party asserting an agency relationship bears the burden of proving it. (Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767, 780.) Agency may be established by showing: (1) the purported agent had actual authority to act on behalf of the employer; (2) the purported agent had apparent authority to act on behalf of the employer; or (3) the employer ratified the purported agent’s conduct. (City of San Diego (2015) PERB Decision No. 2464-M, adopting proposed decision at pp. 38-39.) (pp. 21-22.)

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.01100 – Actual Authority

Actual agency exists “when the agent is really employed by the principal.” (Civ. Code, § 2299.) “Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” (Id., § 2316.) Because an actual agent is employed by the principal, the primary inquiry in assessing actual authority is whether the agent was acting within the scope of his or her authority. (City of San Diego (2015) PERB Decision No. 2464-M, p. 15; Inglewood Unified School District (1990) PERB Decision No. 792, p. 19; Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 312.) The Board concluded that OE3 failed to establish a District employee acted with actual authority when he solicited signatures in support of a decertification petition as there was no evidence in the record that the District conferred actual authority upon the employee to act on the District’s behalf or allowed the employee to believe he possessed such authority. (pp. 22-23.)

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.01200 – Apparent Authority

Apparent authority is “such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ. Code, § 2317.) “PERB and the courts have held that apparent authority to act on behalf of the employer may be found where the manifestations of the employer create a reasonable basis for employees to believe that the employer has authorized the alleged agent to perform the act in question.” (Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 9-10, quoting West Contra Costa County Healthcare District (2011) PERB Decision No. 2164-M, p. 7.) The inquiry is best framed as whether under the circumstances a reasonable employee would believe the alleged agent “was reflecting company policy and speaking and acting for management.” (Compton Unified School District (2003) PERB Decision No. 1518, p. 5, fn. 3, quoting Great Am. Products (1993) 312 NLRB 962, 963.) This is an objective inquiry. (City of San Diego (2015) PERB Decision No. 2464-M, p. 18; Chula Vista Elementary School District (2004) PERB Decision No. 1647, pp. 8-9.) Examining the facts in totality, the Board found that a District employee did not act with apparent authority in collecting signatures for a decertification petition. While certain facts indeed suggest that the employee received preferential treatment from the District—e.g., he was the only Irrigation Specialist to reside in fully subsidized housing on District property, to retain a company vehicle for work and personal use, and to absent himself from daily morning meetings with impunity—the Board considered them against the facts that management never referred to the employee as a “shop and yard foreman” during a meeting between Irrigation Specialists and management, or otherwise, and that the employee did not have any supervisory authority aside from occasionally overseeing the spray crew. (pp. 23-24.)

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.01300 – Ratification

To find that a principal ratified the acts of another, thereby establishing agency after the fact, it must be shown that the principal knew or was on constructive notice of the agent’s conduct and failed to disavow that conduct. (Civ. Code, § 2310; Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, pp. 51-52; Chula Vista Elementary School District (2004) PERB Decision No. 1647, p. 8; Compton Unified School District (2003) PERB Decision No. 1518, p. 5.) The Board concluded that OE3 did not meet its evidentiary burden to prove the District ratified its employee’s actions. The employee solicited signatures on the District yard, in the open, before and after work, where he could have been seen by management. However, as the Board explained, OE3 did not demonstrate that any District managers knew that the employee was collecting signatures in the yard. The only District manager to testify at hearing never observed the employee soliciting signatures for the decertification petition. Moreover, OE3 failed to show that any District managers had constructive notice of the employee’s involvement in the decertification petition by virtue of the mechanic shop and yard being located within view from the office. The prospect that “a manager could have seen” the employee soliciting signatures in the yard, as OE3 argues, without more, did not serve as constructive notice to the District. (pp. 24-25.)

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.01000 – In General

In assessing whether an employer has dominated an employee organization or interfered with its formation or administration, PERB looks to whether the employer’s conduct tends to interfere with the organization’s ability to maintain an arm’s length relationship with the employer. (Clovis Unified School District (2021) PERB Decision No. IR-63, p. 18.) In such cases, PERB considers the level of the employer’s involvement in the organization’s internal affairs. (Id. at p. 19.) To establish a claim of unlawful domination, a charging party need not show the employer’s conduct actually impacted employee free choice, nor that the employer intended to dominate an organization, interfere with its internal affairs, or infringe on an organization’s ability to maintain an arm’s length relationship with the employer. (Id. at p. 18; City of Arcadia (2010) PERB Decision No. 2648-M, pp. 24-25; West Contra Costa County Healthcare District (2011) PERB Decision No. 2164-M, p. 6.) Because OE3 did not establish agency, its claim that the District, acting through an employee, interfered with OE3’s ability to maintain an arm’s length relationship with the District, failed. (pp. 26-27.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – In General; Standards

The test for whether conduct or communication deters or discourages employees in making the choices enumerated in section 3550 is objective. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 24.) It is the charging party’s burden to show that the conduct or communication tends to influence employee free choice, not that the conduct actually did influence employee choice. (Ibid.) PERB will look first to the conduct or communication itself in determining whether it tends to influence employee free choice. (Ibid.) But context matters in even the objective assessment. (Ibid.) Therefore, we also will examine the context surrounding the conduct or communication when determining whether such conduct is reasonably likely to deter or discourage employee choices on union matters. (Ibid.) Because OE3 did not establish agency, its claim that the District deterred or discourages public employees or applicants to be public employees from becoming or remaining members of OE3, from authorizing representation by OE3, or from authorizing due or fee deductions to OE3, was dismissed. (pp. 27-28.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the specific conduct involved. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) In contrast, the totality of conduct test applies to allegations of bad faith bargaining conduct that do not constitute a per se refusal to bargain. (Id. at p. 35.) Under the totality test, a party is permitted to maintain a “hard bargaining” position on one or more issues, if the entire course of its bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 7-8.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 7.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a party has failed to bargain in good faith. (City of San Jose (2013) PERB Decision No. 2341-M, p. 19.) However, PERB generally considers multiple factors, including bad faith indicia such as: (1) failing to respond to proposals in a timely manner (State of California (Department of Personnel Administration) (1989) PERB Decision No. 739-S, pp. 4-5); (2) dilatory or evasive tactics, canceling meetings, failing to prepare adequately for negotiations, or failing to take one’s bargaining obligation seriously (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26; Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34); and (3) any other conduct that tends to frustrate negotiations without adequate reason.

Conduct sufficient to amount to one or more separate, contemporaneous unfair practices also indicates bad faith under the totality test. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 21 & 43.) This includes both labor law violations away from the bargaining table and acts that could amount to a per se violation of the duty to bargain (City of Davis (2018) PERB Decision No. 2582-M, pp. 9, 11-13), such as refusing to bargain outright over one or more bargainable topics or effects (City of Glendale (2020) PERB Decision No. 2694-M, pp. 67-70; City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 12-13).

The Board affirmed the ALJ’s finding of a bad faith bargaining violation and additionally found two per se violations of the District’s duty to negotiate in good faith: the District’s flat refusal to bargain from January through March 2023 and its counsel’s statement that the District did not have a duty to negotiate with OE3 during the pendency of the decertification petition. Both of these were also indicators of bad faith under the totality test. (pp. 28-30.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.04000 – Bar To

It may be proper to extend the certification bar and dismiss a decertification petition altogether based on proven unfair practices in cases involving initial contract negotiations. (St. HOPE Public Schools (2024) PERB Order No. Ad-511, pp. 8, 10, fn. 11 (St. HOPE).) As we outlined in St. HOPE, supra, there are normally three potential bases for dismissal if a charging party has prevailed in its blocking charges in whole or in part, as OE3 did here: (1) the proven conduct materially tainted solicitation of employee support or employees’ decision to sign the petition, such that there is a legitimate question whether the petition would have reached the requisite threshold absent unfair practices; (2) the conduct occurred while an emerging union was negotiating for a first contract after recognition, certification, or successorship, thereby warranting retroactive extension of the certification or recognition bar; or (3) the conduct has a continuing prospective tendency to harm employee free choice that PERB’s remedies are unlikely to fully address, even in conjunction with the passage of time and any other relevant factors. (Id. at pp. 10-11.) Here, the ALJ ordered extension of the certification bar to at least 12 months from the commencement of good faith bargaining, subject to extension if the District is found to have engaged in additional unfair practices. The Board concurred with this remedy.

The Board also recognized that the District’s illegal conduct occurred while OE3 was negotiating for a first contract. These circumstances called for heightened protection stemming from the Board’s experiential understanding that “it is particularly difficult to restore a newly recognized or certified union’s standing with its members after early unlawful conduct” and thus “absent unusual circumstances it is proper to extend the recognition bar or certification bar and dismiss the petition altogether based on proven unfair practices during first contract negotiations.” (St. HOPE, supra, PERB Order No. Ad-511, pp. 10, fn. 11 & 10-12; see Gompers Preparatory Academy (2020) PERB Order No. Ad-481, pp. 5-6 & cases cited therein [“an employer’s bad faith bargaining conduct during negotiations for an initial contract typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship because such conduct sends the message that ‘employees [will] see no change in their working lives from having a collective-bargaining representative’”]; Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, adopting administrative determination at pp. 19-20; Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 12, fn. 6.) Dismissal of the decertification petition would accordingly be appropriate. However, in light of the particular procedural posture of this case, viz., the Group of Employees that filed the decertification petition did not appear in this matter, the Board not order dismissal herein but noted that any party could file a motion with OGC to dismiss the decertification petition in Case No. SA-DP-284-M. (pp. 33-35.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.02000 – Effect on Bargaining Obligation

The filing of a decertification petition does not suspend an employer’s duty to bargain in good faith. (p. 30.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

The Board declined to order attorney fees and litigation expenses. The District eventually dropped its argument regarding its bargaining obligations during a pending decertification petition and did not repeat them on exceptions to the Board, thereby precluding a finding of the requisite bad faith. (pp. 36-37.)