Decision I057M – City of Fremont

SF-CE-1028-M

Decision Date: October 25, 2013

Decision Type: Injunctive Relief

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Perc Vol: 38
Perc Index: 68

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.03000 – Purpose of the Act

The MMBA’s stated purposes are to: (1) promote full communication between public employers and employees; and (2) improve personnel management and employer-employee relations. To accomplish these goals, the Legislature enacted a comprehensive statutory scheme that gives employees of local agencies the right to organize and be represented by employee organizations, and requires employers both to meet and confer in good faith with employee representatives on wages, hours and other working conditions, and to endeavor to reach binding agreements on such matters. The MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including procedures for recognizing employee representatives as the exclusive bargaining agent for units of employees, as well as for decertifying an exclusive representative organization. That section specifically provides, however, that no public agency shall unreasonably withhold recognition of employee organizations. Moreover, it is an unlawful practice for a public agency to violate its own local rules, or to adopt and enforce local rules not in conformance with the provisions or purposes of the MMBA. The purposes of the MMBA are promoting full communication between public employers and employees and improving personnel management and employer-employee relations by recognizing the right of public employees to join organizations of their own choice and to be represented by these organizations in their employment relationship with public agencies. To achieve these purposes, in 1968 the Legislature established in the MMBA a system of collective bargaining and conferred on employees, employers and employee organizations particular rights and duties. Among those rights and duties are the right of employees to select their representative free of employer interference, and the right of the selected representative to engage the employer in collective negotiations over wages, hours and employment terms and conditions. PERB’s function under MMBA is to exercise its exclusive initial jurisdiction to interpret and administer the statute, including the determination of whether an unfair practice charge is justified and, if so, what remedies are most appropriate to effectuate the proposes of the MMBA. PERB determines in the first instance whether a party’s conduct constitutes a failure to bargain in good faith. PERB’s role as the expert agency charged with administering the MMBA is to initiate and conduct administrative proceedings to determine whether an unfair practice has occurred and what remedy, if any, is appropriate. In so doing, PERB must conduct hearings in order to develop a sufficient factual record to: (1) allow the Board to resolve in a final decision any dispute as to an alleged violation of the MMBA; and (2) allow for meaningful judicial review of a final Board decision.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

MMBA section 3503 vests public employees with the right to form, join and participate in the activities of employee organizations for the purpose of representation on employment matters, as well as the right to refrain from engaging in those activities. It is unlawful for a public agency to impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by the MMBA.

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

MMBA section 3503 vests public employees with the right to form, join and participate in the activities of employee organizations for the purpose of representation on employment matters, as well as the right to refrain from engaging in those activities. It is unlawful for a public agency to impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by the MMBA. The purposes of the MMBA are promoting full communication between public employers and employees and improving personnel management and employer-employee relations by recognizing the right of public employees to join organizations of their own choice and to be represented by these organizations in their employment relationship with public agencies. To achieve these purposes, in 1968 the Legislature established in the MMBA a system of collective bargaining and conferred on employees, employers and employee organizations particular rights and duties. Among those rights and duties are the right of employees to select their representative free of employer interference, and the right of the selected representative to engage the employer in collective negotiations over wages, hours and employment terms and conditions.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.01000 – In General; Prima Facie Case.

The MMBA accords recognized employee organizations the right to represent their members in their employment relations with public agencies, and it is unlawful for a public agency to deny these organizations the rights guaranteed to them under the MMBA. The MMBA prohibits public agencies from interfering with the formation and administration of any employee organization, or to encourage employees to join any employee organization in preference to another. The MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including procedures for recognizing employee representatives as the exclusive bargaining agent for units of employees, as well as for decertifying an exclusive representative organization. That section specifically provides, however, that no public agency shall unreasonably withhold recognition of employee organizations. Moreover, it is an unlawful practice for a public agency to violate its own local rules, or to adopt and enforce local rules not in conformance with the provisions or purposes of the MMBA. The employer’s duty to bargain in good faith is owed to the recognized employee organization. Where the duty exists, an employer’s outright refusal to bargain with a recognized employee organization violates the duty to bargain in good faith. The purposes of the MMBA are promoting full communication between public employers and employees and improving personnel management and employer-employee relations by recognizing the right of public employees to join organizations of their own choice and to be represented by these organizations in their employment relationship with public agencies. To achieve these purposes, in 1968 the Legislature established in the MMBA a system of collective bargaining and conferred on employees, employers and employee organizations particular rights and duties. Among those rights and duties are the right of employees to select their representative free of employer interference, and the right of the selected representative to engage the employer in collective negotiations over wages, hours and employment terms and conditions.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.02000 – Discrimination Favoring Organization Over Another

The MMBA prohibits public agencies from interfering with the formation and administration of any employee organization, or to encourage employees to join any employee organization in preference to another. Where two employee organizations are competing for the right to represent the same employees, the employer must remain neutral. If an employer does not maintain neutrality, the employer is deemed to encourage employees to prefer one organization over another, which violates the employees’ right to choose an organization free of employer interference. In assessing such conduct, the Board asks whether the employer’s conduct tends to influence employee free choice of organization.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.11000 – Dues Deductions/Check Off/Agency Fee

The MMBA authorizes the deduction of dues and agency fees from employee pay, to afford exclusive representatives the financial means to carry out their representation duties. The MMBA accords recognized employee organizations the right to represent their members in their employment relations with public agencies, and it is unlawful for a public agency to deny these organizations the rights guaranteed to them under the MMBA.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.13000 – Rights Pertaining to Exclusivity (See also 603)

The MMBA accords recognized employee organizations the right to represent their members in their employment relations with public agencies, and it is unlawful for a public agency to deny these organizations the rights guaranteed to them under the MMBA.

407.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION
407.04000 – Employer Favoritism/Absence of Strict Neutrality

The MMBA prohibits public agencies from interfering with the formation and administration of any employee organization, or to encourage employees to join any employee organization in preference to another. Where two employee organizations are competing for the right to represent the same employees, the employer must remain neutral. If an employer does not maintain neutrality, the employer is deemed to encourage employees to prefer one organization over another, which violates the employees’ right to choose an organization free of employer interference. In assessing such conduct, the Board asks whether the employer’s conduct tends to influence employee free choice of organization.

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

The MBMA requires governing bodies of local agencies to meet and confer with employee representatives in good faith regarding wages, hours and other terms and conditions of employment. More specifically, the MMBA makes it unlawful for a public agency to refuse to negotiate in good faith with a recognized employee organization. The employer’s duty to bargain in good faith is owed to the recognized employee organization. Where the duty exists, an employer’s outright refusal to bargain with a recognized employee organization violates the duty to bargain in good faith.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality

The MMBA prohibits public agencies from interfering with the formation and administration of any employee organization, or to encourage employees to join any employee organization in preference to another.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

PERB’s function under MMBA is to exercise its exclusive initial jurisdiction to interpret and administer the statute, including the determination of whether an unfair practice charge is justified and, if so, what remedies are most appropriate to effectuate the proposes of the MMBA. PERB determines in the first instance whether a party’s conduct constitutes a failure to bargain in good faith. PERB’s role as the expert agency charged with administering the MMBA is to initiate and conduct administrative proceedings to determine whether an unfair practice has occurred and what remedy, if any, is appropriate. In so doing, PERB must conduct hearings in order to develop a sufficient factual record to: (1) allow the Board to resolve in a final decision any dispute as to an alleged violation of the MMBA; and (2) allow for meaningful judicial review of a final Board decision.

1207.00000 – REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF
1207.01000 – In General

PERB’s authority to seek injunctive relief under the MMBA is stated in section 3509(a), which incorporates the Board’s authority under section 3541.3(j) of the Educational Employment Relations Act (EERA) to seek temporary relief or a restraining order. Injunctive relief is appropriate where: (1) there is reasonable cause to believe that an unfair practice has been committed, and (2) the injunctive relief sought is just and proper. Absent temporary relief to restore and maintain the status quo ante, PERB’s task of adjudicating and remedying alleged unfair practices is in severe jeopardy.

1207.00000 – REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF
1207.02000 – Standards for Obtaining Injunctive Relief

Injunctive relief is appropriate where the Board concludes that: (1) reasonable cause exists to believe an unfair practice has been committed; and (2) the injunctive relief is just and proper. Injunctive relief must be “just and proper.” That standard is met where there exists a probability that the purposes of the MMBA 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. Absent temporary relief to restore and maintain the status quo ante, PERB’s task of adjudicating and remedying alleged unfair practices is in severe jeopardy. An employer’s failure or refusal to bargain is likely to irreparably injure union representation. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1191, quoting Frankl v. HTH Corp. (9th Cir. 2011) 650 F.3d 1334, 1362.) The Board’s traditional make-whole remedies do not match the full range of harms flowing from the violation. A refusal to bargain, implicit in an employer’s withdrawal of recognition, gives rise to myriad harms. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, pp. 1191-1193 (Avanti).) Absent bargaining, there will be no negotiated agreement or MOU. Employees are thus denied the opportunity to achieve economic and non-economic benefits which a negotiated agreement might contain. Such harm is irreparable, since the Board’s traditional make whole authority does not extend to economic or non-economic benefits that might have been obtained had the employer recognized and negotiated an MOU with the employees’ representative. Moreover, even if such make whole relief could be awarded, the employees would be less than whole since the “right to enjoy the benefits of union representation is immeasurable in dollar terms once it is delayed or lost.” (Avanti, at p. 1192.) The efficacy of the Board’s final order is likewise nullified by the necessary delay accompanying PERB’s administrative procedures, during which an unjustly ousted union suffers loss of support. As time passes, the benefits of representation are lost and the spark to organize is extinguished. The deprivation to employees from the delay in bargaining and the diminution of union support is immeasurable. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1192.)