Decision I063E – Clovis Unified School District

PEDD 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. Deter or discourage means to tend to influence an employee’s free choice regarding whether or not to (1) authorize union representation, (2) become or remain a union member, or (3) commence or continue paying union dues or fees. (p. 30.)

To establish a prima facie case of a section 3550 violation, the charging party need only show that the challenged conduct or communication is reasonably likely to deter or discourage employee free choice, not that the conduct actually did deter or discourage employees. In cases that involve union organizing, section 3550 leaves it to employees on opposite sides of the organizing debate to lobby their colleagues without the employer’s involvement, except where a business necessity compels the employer to take some action that may also incidentally influence employee free choice. (p. 30.)

Several days after the rival nonexclusive representative announced its organizing campaign to the school district and in response to concerns that the district was showing clear favoritism toward the existing nonexclusive representative, an associate superintendent stated that the existing nonexclusive representative had served as advocates and representatives for teachers. The associate superintendent also said the school district’s close relationship with the preferred nonexclusive representative is simply a fact of how business has been conducted at the district. Then the superintendent sent an e-mail to employees crediting the existing nonexclusive representative with securing a $4,000 one-time payment to employees, and recommending a salary increase, a two-day decrease of duty days, and increased school district contributions to healthcare premiums. (pp. 30-31.) The content of these communications tends, in several ways, to influence employees’ choice whether or not to authorize representation by the rival nonexclusive representative. First, they create the impression that the existing nonexclusive representative is already the teachers’ established bargaining representative, causing teachers to doubt the rival nonexclusive representative’s status as a legitimate employee organization. Second, the communications suggest that it is the existing nonexclusive representative, not the rival nonexclusive representative, that can achieve better working conditions for teachers because of its close relationship with school district administration. Third, the communications evince the school district’s animus toward unionization. According to a historical school district document, which is given to newly-hired teachers and posted in the school district’s boardroom, the school district is proud to not have collective bargaining. Additionally, teachers reported hearing of a principal telling teachers that if employees signed in support of the rival nonexclusive representative’s petition, and if the area superintendent found out, he would transfer employees to a particular school site where students with behavioral issues are sent. (pp. 32-33.) The school district’s communications, viewed as a whole, tended to influence employee choice about whether or not to authorize representation by the rival nonexclusive representative by strongly suggesting that unionization is against the school district’s longstanding viewpoint and has no place when the existing nonexclusive representative provides the representation the rival nonexclusive representative could provide. Based solely on the content of the communications, reasonable cause existed to believe the school district violated PEDD section 3550. (p. 33.)

Many of the school district’s communications to employees showing a preference for the existing nonexclusive representative occurred in the two months after the rival nonexclusive representative announced its organizing campaign. This timing strengthens their impact, as does circulating similar messages on a repeated basis, which would tend to cause a reasonable employee to believe the messages were particularly urgent and important to the school district. (pp. 33-34.) Additionally, the communications were sent against the backdrop of the school district providing essentially all the resources needed for the existing nonexclusive representative to operate, and its pervasive involvement in the existing nonexclusive representative’s internal affairs. This context further supported finding reasonable cause that the school district deterred or discouraged support for the rival nonexclusive representative in violation of PEDD section 3550. (pp. 34-35.)

A charging party union need not establish employer intent or actual diminution in its level of support in order to succeed in a charge under EERA section 3543.5, subdivision (d). The Board found that there was substantial information to suggest that the school district’s conduct has led to diminished support for the rival nonexclusive representative, thereby further supporting the conclusion that there is reasonable cause to believe the school district violated—and continued to violate—EERA section 3543.5, subdivision (d) by showing preference for one nonexclusive representative over the other. (p. 29.)

To show a prima facie violation of EERA section 3543.5, subdivision (d), the charging party must allege facts which demonstrate that the employer’s conduct tends to interfere with the internal activities of an employee organization or tends to influence employees’ choice between employee organizations. Whether an employer has violated EERA section 3543.5, subdivision (d) is based on the totality of the circumstances. Proof that an employer intended to unlawfully dominate, assist, or influence employees’ free choice is not required. Nor is it necessary to prove that employees actually changed their support as a result of the employer’s conduct. (p. 18.)

EERA section 3543.5, subdivision (d)’s prohibition on dominating or interfering with the formation or administration of any employee organization looks to whether the employer’s conduct tends to interfere with the employee organization’s ability to maintain an arm’s length relationship with the employer. In such cases, PERB considers the level of the employer’s involvement in the employee organization’s internal affairs. (pp. 18-19.)

To show a prima facie violation of EERA section 3543.5, subdivision (d), the charging party must allege facts which demonstrate that the employer’s conduct tends to interfere with the internal activities of an employee organization or tends to influence employees’ choice between employee organizations. Whether an employer has violated EERA section 3543.5, subdivision (d) is based on the totality of the circumstances. Proof that an employer intended to unlawfully dominate, assist, or influence employees’ free choice is not required. Nor is it necessary to prove that employees actually changed their support as a result of the employer’s conduct. (p. 18.)

EERA section 3543.5, subdivision (d)’s prohibition on dominating or interfering with the formation or administration of any employee organization looks to whether the employer’s conduct tends to interfere with the employee organization’s ability to maintain an arm’s length relationship with the employer. In such cases, PERB considers the level of the employer’s involvement in the employee organization’s internal affairs. (pp. 18-19.)

A prima facie case of unlawful domination or assistance was found where (1) the school district’s official policy held the nonexclusive representative out as the representative for teachers, thereby giving it the school district’s imprimatur, (2) the school district’s official disciplinary policy provided that a teacher may have the nonexclusive representative’s representative present at disciplinary meetings, (3) the school district’s organizational chart shows that the nonexclusive representative’s president reports to the school district Superintendent, (4) the school district and the nonexclusive representative jointly develop a yearly survey, which is administered by the nonexclusive representative’s representatives at each school site, (5) the nonexclusive representative’s representatives needed the school district’s permission to revise its bylaws, and before meeting with teachers in large groups at school sites, and (6) the nonexclusive representative sat on several committees with other employee organizations and administrators that provided recommendations to the school district’s board on employment matters.

The school district’s de facto recognition of the existing nonexclusive representative continued after a rival nonexclusive representative gave notice of its organizing campaign, including by: (1) hosting the existing nonexclusive representative’s webpage on the school district’s website; (2) directing its Technology Department to assist the preferred nonexclusive representative in two elections; (3) offering to have its legal counsel review the preferred nonexclusive representative’s bylaws; (4) allowing the existing nonexclusive representative to use the school district’s survey to poll teachers about their views on the existing nonexclusive representative; and (5) setting up an e-mail list for the existing nonexclusive representative’s president to communicate with teachers via the school district’s e-mail system. The totality of the circumstances established reasonable cause to believe that the school district had—and continued to have—pervasive involvement in the affairs of the existing nonexclusive representative in violation of EERA section 3543.5, subdivision (d). (p. 21.)

EERA section 3543.5, subdivision (d) prohibits contributing “financial or other support” to an employee organization. In determining if an employer has violated this prohibition, PERB examines the totality of the employer’s conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. This is an objective test; it is not necessary to look into the employer’s intent or the employees’ subjective reaction to the employer’s assistance to the employee organization. (pp. 21-22.)

The most common type of unlawful support case involves an employer that provides support to one of two competing nonexclusive representatives. The Board usually resolves such cases by deciding whether the employer failed to remain strictly neutral between the two competing organizations. The school district must treat both nonexclusive representatives equally with respect to financial or other support. (p. 22.) Here, the school district provided a high level of support to the existing nonexclusive representative because it is 100 percent employer-funded. Also, the school district dominated and interfered with the existing nonexclusive representative’s internal affairs and expressed a preference for the existing nonexclusive representative over the rival nonexclusive representative, while failing to offer the rival organization the same support. This was sufficient to establish reasonable cause to believe the school district violated—and continued to violate—EERA section 3543.5, subdivision (d)’s prohibition on contributing financial or other support to an employee organization. (pp. 25-26.)

A prima facie case of unlawful domination or assistance was found where (1) the school district’s official policy held the nonexclusive representative out as the representative for teachers, thereby giving it the school district’s imprimatur, (2) the school district’s official disciplinary policy provided that a teacher may have the nonexclusive representative’s representative present at disciplinary meetings, (3) the school district’s organizational chart shows that the nonexclusive representative’s president reports to the school district Superintendent, (4) the school district and the nonexclusive representative jointly develop a yearly survey, which is administered by the nonexclusive representative’s representatives at each school site, (5) the nonexclusive representative’s representatives needed the school district’s permission to revise its bylaws, and before meeting with teachers in large groups at school sites, and (6) the nonexclusive representative sat on several committees with other employee organizations and administrators that provided recommendations to the school district’s board on employment matters.

The school district’s de facto recognition of the existing nonexclusive representative continued after a rival nonexclusive representative gave notice of its organizing campaign, including by: (1) hosting the existing nonexclusive representative’s webpage on the school district’s website; (2) directing its Technology Department to assist the preferred nonexclusive representative in two elections; (3) offering to have its legal counsel review the preferred nonexclusive representative’s bylaws; (4) allowing the existing nonexclusive representative to use the school district’s survey to poll teachers about their views on the existing nonexclusive representative; and (5) setting up an e-mail list for the existing nonexclusive representative’s president to communicate with teachers via the school district’s e-mail system. The totality of the circumstances established reasonable cause to believe that the school district had—and continued to have—pervasive involvement in the affairs of the existing nonexclusive representative in violation of EERA section 3543.5, subdivision (d). (p. 21.)

EERA section 3543.5, subdivision (d) prohibits contributing “financial or other support” to an employee organization. In determining if an employer has violated this prohibition, PERB examines the totality of the employer’s conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. This is an objective test; it is not necessary to look into the employer’s intent or the employees’ subjective reaction to the employer’s assistance to the employee organization. (pp. 21-22.)

The most common type of unlawful support case involves an employer that provides support to one of two competing nonexclusive representatives. The Board usually resolves such cases by deciding whether the employer failed to remain strictly neutral between the two competing organizations. The school district must treat both nonexclusive representatives equally with respect to financial or other support. (p. 22.) Here, the school district provided a high level of support to the existing nonexclusive representative because it is 100 percent employer-funded. Also, the school district dominated and interfered with the existing nonexclusive representative’s internal affairs and expressed a preference for the existing nonexclusive representative over the rival nonexclusive representative, while failing to offer the rival organization the same support. This was sufficient to establish reasonable cause to believe the school district violated—and continued to violate—EERA section 3543.5, subdivision (d)’s prohibition on contributing financial or other support to an employee organization. (pp. 25-26.)

In cases where two employee organizations are competing for the right to represent the same employees, the employer must remain neutral. To establish a violation of EERA section 3543.5, subdivision (d)’s prohibition on encouraging employees to join any organization in preference to another, the test is whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other. (p. 26.) Since the rival nonexclusive representative announced its organizing campaign, the school district stopped providing a vehicle and credit card for the existing nonexclusive representative’s use, but continued to provide stipends to organization representatives, release time for executive board members, an operating budget, and use of an office. Likewise, the school district continued to maintain policies declaring that the existing nonexclusive representative is the representative of teachers, including for disciplinary matters. The school district’s survey solicited teachers’ views on the existing nonexclusive representative’s representation. The school district continued to meet with the existing nonexclusive representative about matters fundamental to the employment relationship (e.g., length of the school year, wages, health benefits), and made a significant change in benefits without first notifying or meeting with the rival nonexclusive representative. The superintendent sent an e-mail to employees announcing a $4,000 payment and informed them of a recommendation of a 5.5 percent increase to salary schedules, two fewer duty days, and an increase in the school district’s contribution to its health benefits fund. The superintendent credited these recommendations to the existing nonexclusive representative and the other organizations participating on the committee. (pp. 27-28.) Due to this conduct, the Board found that the school district preferred one nonexclusive representative over another and thus failed to maintain strict neutrality.

An employer that does not maintain strict neutrality in the face of competing employee organizations is deemed to encourage employees to prefer one organization over another, in violation of employees’ right to choose an organization free of employer interference. Because the school district continued to provide financial support and other assistance to the existing nonexclusive representative without offering the same level of support to the rival nonexclusive representative, the district’s conduct tends to encourage employees to support the existing nonexclusive representative over the rival nonexclusive representative in order to continue receiving the negotiated benefits from the school district. Thus, the Board found there was reasonable cause to believe the school district breached its duty of strict neutrality in violation of EERA section 3543.5, subdivision (d). (pp. 28-29.)

A prima facie case of unlawful domination or assistance was found where (1) the school district’s official policy held the nonexclusive representative out as the representative for teachers, thereby giving it the school district’s imprimatur, (2) the school district’s official disciplinary policy provided that a teacher may have the nonexclusive representative’s representative present at disciplinary meetings, (3) the school district’s organizational chart shows that the nonexclusive representative’s president reports to the school district Superintendent, (4) the school district and the nonexclusive representative jointly develop a yearly survey, which is administered by the nonexclusive representative’s representatives at each school site, (5) the nonexclusive representative’s representatives needed the school district’s permission to revise its bylaws, and before meeting with teachers in large groups at school sites, and (6) the nonexclusive representative sat on several committees with other employee organizations and administrators that provided recommendations to the school district’s board on employment matters.

The school district’s de facto recognition of the existing nonexclusive representative continued after a rival nonexclusive representative gave notice of its organizing campaign, including by: (1) hosting the existing nonexclusive representative’s webpage on the school district’s website; (2) directing its Technology Department to assist the preferred nonexclusive representative in two elections; (3) offering to have its legal counsel review the preferred nonexclusive representative’s bylaws; (4) allowing the existing nonexclusive representative to use the school district’s survey to poll teachers about their views on the existing nonexclusive representative; and (5) setting up an e-mail list for the existing nonexclusive representative’s president to communicate with teachers via the school district’s e-mail system. The totality of the circumstances established reasonable cause to believe that the school district had—and continued to have—pervasive involvement in the affairs of the existing nonexclusive representative in violation of EERA section 3543.5, subdivision (d). (p. 21.)

EERA section 3543.5, subdivision (d) prohibits contributing “financial or other support” to an employee organization. In determining if an employer has violated this prohibition, PERB examines the totality of the employer’s conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. This is an objective test; it is not necessary to look into the employer’s intent or the employees’ subjective reaction to the employer’s assistance to the employee organization. (pp. 21-22.)

The most common type of unlawful support case involves an employer that provides support to one of two competing nonexclusive representatives. The Board usually resolves such cases by deciding whether the employer failed to remain strictly neutral between the two competing organizations. The school district must treat both nonexclusive representatives equally with respect to financial or other support. (p. 22.) Here, the school district provided a high level of support to the existing nonexclusive representative because it is 100 percent employer-funded. Also, the school district dominated and interfered with the existing nonexclusive representative’s internal affairs and expressed a preference for the existing nonexclusive representative over the rival nonexclusive representative, while failing to offer the rival organization the same support. This was sufficient to establish reasonable cause to believe the school district violated—and continued to violate—EERA section 3543.5, subdivision (d)’s prohibition on contributing financial or other support to an employee organization. (pp. 25-26.)

A prima facie case of unlawful domination or assistance was found where (1) the school district’s official policy held the nonexclusive representative out as the representative for teachers, thereby giving it the school district’s imprimatur, (2) the school district’s official disciplinary policy provided that a teacher may have the nonexclusive representative’s representative present at disciplinary meetings, (3) the school district’s organizational chart shows that the nonexclusive representative’s president reports to the school district Superintendent, (4) the school district and the nonexclusive representative jointly develop a yearly survey, which is administered by the nonexclusive representative’s representatives at each school site, (5) the nonexclusive representative’s representatives needed the school district’s permission to revise its bylaws, and before meeting with teachers in large groups at school sites, and (6) the nonexclusive representative sat on several committees with other employee organizations and administrators that provided recommendations to the school district’s board on employment matters.

The school district’s de facto recognition of the existing nonexclusive representative continued after a rival nonexclusive representative gave notice of its organizing campaign, including by: (1) hosting the existing nonexclusive representative’s webpage on the school district’s website; (2) directing its Technology Department to assist the preferred nonexclusive representative in two elections; (3) offering to have its legal counsel review the preferred nonexclusive representative’s bylaws; (4) allowing the existing nonexclusive representative to use the school district’s survey to poll teachers about their views on the existing nonexclusive representative; and (5) setting up an e-mail list for the existing nonexclusive representative’s president to communicate with teachers via the school district’s e-mail system. The totality of the circumstances established reasonable cause to believe that the school district had—and continued to have—pervasive involvement in the affairs of the existing nonexclusive representative in violation of EERA section 3543.5, subdivision (d). (p. 21.)

EERA section 3543.5, subdivision (d) prohibits contributing “financial or other support” to an employee organization. In determining if an employer has violated this prohibition, PERB examines the totality of the employer’s conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. This is an objective test; it is not necessary to look into the employer’s intent or the employees’ subjective reaction to the employer’s assistance to the employee organization. (pp. 21-22.)

The most common type of unlawful support case involves an employer that provides support to one of two competing nonexclusive representatives. The Board usually resolves such cases by deciding whether the employer failed to remain strictly neutral between the two competing organizations. The school district must treat both nonexclusive representatives equally with respect to financial or other support. (p. 22.) Here, the school district provided a high level of support to the existing nonexclusive representative because it is 100 percent employer-funded. Also, the school district dominated and interfered with the existing nonexclusive representative’s internal affairs and expressed a preference for the existing nonexclusive representative over the rival nonexclusive representative, while failing to offer the rival organization the same support. This was sufficient to establish reasonable cause to believe the school district violated—and continued to violate—EERA section 3543.5, subdivision (d)’s prohibition on contributing financial or other support to an employee organization. (pp. 25-26.)

An employer that does not maintain strict neutrality in the face of competing employee organizations is deemed to encourage employees to prefer one organization over another, in violation of employees’ right to choose an organization free of employer interference. Because the school district continued to provide financial support and other assistance to the existing nonexclusive representative without offering the same level of support to the rival nonexclusive representative, the district’s conduct tends to encourage employees to support the existing nonexclusive representative over the rival nonexclusive representative in order to continue receiving the negotiated benefits from the school district. Thus, the Board found there was reasonable cause to believe the school district breached its duty of strict neutrality in violation of EERA section 3543.5, subdivision (d). (pp. 28-29.)

In cases where two employee organizations are competing for the right to represent the same employees, the employer must remain neutral. To establish a violation of EERA section 3543.5, subdivision (d)’s prohibition on encouraging employees to join any organization in preference to another, the test is whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other. (p. 26.) Since the rival nonexclusive representative announced its organizing campaign, the school district stopped providing a vehicle and credit card for the existing nonexclusive representative’s use, but continued to provide stipends to organization representatives, release time for executive board members, an operating budget, and use of an office. Likewise, the school district continued to maintain policies declaring that the existing nonexclusive representative is the representative of teachers, including for disciplinary matters. The school district’s survey solicited teachers’ views on the existing nonexclusive representative’s representation. The school district continued to meet with the existing nonexclusive representative about matters fundamental to the employment relationship (e.g., length of the school year, wages, health benefits), and made a significant change in benefits without first notifying or meeting with the rival nonexclusive representative. The superintendent sent an e-mail to employees announcing a $4,000 payment and informed them of a recommendation of a 5.5 percent increase to salary schedules, two fewer duty days, and an increase in the school district’s contribution to its health benefits fund. The superintendent credited these recommendations to the existing nonexclusive representative and the other organizations participating on the committee. (pp. 27-28.) Due to this conduct, the Board found that the school district preferred one nonexclusive representative over another and thus failed to maintain strict neutrality.

PERB cannot seek an injunction unless it finds (1) reasonable cause to believe an unfair practice has been or will be committed; and (2) that injunctive relief is just and proper. (p. 16.)

A rival nonexclusive representative established reasonable cause to believe that the school district violated EERA section 3543.5, subdivision (d) by: (1) dominating or interfering with the administration of the existing nonexclusive representative; (2) contributing financial or other support to the existing nonexclusive representative; and (3) violating its duty of strict neutrality by favoring the existing nonexclusive representative over the rival organization. Also there was reasonable cause to believe that the school district communicated with teachers in a way that deterred or discouraged support for the rival nonexclusive representative in violation of PEDD. (p. 17.)

To meet the second prong of the Modesto test, PERB must demonstrate to the court that injunctive relief is just and proper. Although interim injunctive relief is an extraordinary remedy, it may be used whenever an employer or union has committed unfair labor practices which, under the circumstances, render any final order of the Board meaningless or so devoid of force that the remedial purposes of EERA will be frustrated. The just and proper standard is met where there exists a probability that the purposes of EERA will be frustrated unless temporary relief is granted or the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless. (p. 35.)

Injunctive relief is just and proper when an employer is using a company union to hinder an outside union’s efforts to organize its employees. Here, injunctive relief was necessary to prevent the school district’s ongoing unfair practices from eroding support for the charging party nonexclusive representative while PERB adjudicates the underlying unfair practice charges. Since 1977 the school district has treated the existing nonexclusive representative as the representative of its teachers. The school district negotiates wage and benefit changes with the existing nonexclusive representative, and grants it preferential access to meetings, school sites, and the school district’s e-mail system—access it has not granted to the rival nonexclusive representative. The school district also fully funds the existing nonexclusive representative’s operations, pays stipends to its representatives, and provides office space. The existing nonexclusive representative is deeply entrenched as the school district’s longstanding preferred employee organization. Against this backdrop, the school district’s recent communications suggest that the existing nonexclusive representative would be a better representative because of its existing close relationship with school district administration, and explicitly state the school district remains opposed to true collective bargaining. Without an injunction, the school district could continue to use the existing nonexclusive representative as a cudgel to crush the rival nonexclusive representative’s organizing efforts. If those efforts were extinguished before PERB could resolve the underlying unfair practice charges, any remedy PERB could order at the conclusion of its adjudication process would be meaningless. (pp. 38-39.) Thus, injunctive relief was appropriate.

Diminution of support for the rival nonexclusive representative resulting from the school district’s alleged unfair practices is not merely speculative or threatened; the declarations submitted in support of the request for injunctive relief show that loss of support had already occurred because of the school district’s current course of action. Several teachers who supported the rival nonexclusive representative prior to its public announcement have since revoked their support. Some teachers did so out of fear that the school district would know they supported the rival nonexclusive representative, and another because he received a position with the existing nonexclusive representative. Other teachers remain confused about the legal status of the nonexclusive representatives, due in part to the school district’s and the existing nonexclusive representative’s statements about the existing nonexclusive representative’s role in representing teachers. And various teachers expressed their concern over school district retaliation if it discovers their support for the rival nonexclusive representative. This information suggests that the school district’s conduct has already negatively impacted the rival nonexclusive representative’s organizing campaign and that it will continue to be negatively impacted if the school district is allowed to continue on the same course while PERB adjudicates the unfair practice charges. For all these reasons, it was necessary to obtain an affirmative order for the school district to place the rival nonexclusive representative on equal footing with the existing nonexclusive representative while the rival pursues its organizing campaign during the pendency of PERB’s adjudication of the unfair practice charges. Such an affirmative order is appropriate to prevent irreparable harm to the rival union by the defection of its supporters and to prevent the existing union’s entrenchment. Injunctive relief was also necessary here because it is typically not possible to provide employees retroactively the monetary and nonmonetary benefits they might have achieved had they been exclusively represented. (pp. 39-40.)

Without an injunction, it is likely that the rival nonexclusive representative’s organizing efforts will be further irreparably harmed and there exists a probability that the purposes of EERA will be frustrated because the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless by the school district’s continuing conduct. An injunction thus is necessary to preserve PERB’s ability, if it finds the school district committed the alleged unfair practices, to restore the situation as nearly as possible to what it would have been had the school district not committed the violations. (pp. 40-41.)