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DecisionDescriptionPERC Vol.PERC IndexDate
2756H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
To the extent the University alleges that its posting was necessary to respond to Teamsters’ flyer, we consider that an affirmative defense. The University raised such a defense in its response to the charge, but sufficient material factual disputes exist to warrant a hearing on the merits. A hearing will give the parties the opportunity to present evidence of the context in which the University’s communication was made and received, an important consideration in determining a PEDD section 3550 violation. The formal hearing process is the appropriate venue for the Union to prove its case, and the Employer to present its affirmative defense, viz. to demonstrate that its asserted business necessity outweighs the tendency of its communication to influence employee free choice. (p. 9.) more or view all topics or full text.
03/01/21
2756H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
By its plain language, PEDD section 3550 applies broadly to employer conduct toward “public employees or applicants.” The statute restricts an employer’s influence over employee decisions whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees “irrespective of whether employees are exclusively represented by a union.” (Regents, supra, PERB Decision No. 2755-H, p. 39.) Indeed, employee decisions whether or not to authorize representation occur frequently when employees are unrepresented. Although Regents of the University of California (2021) PERB Decision No. 2755-H involved communications to represented employees, the plain language of the statute suggests no reason a different test would necessarily apply where, as here, the employer’s conduct or communication is directed toward unrepresented employees. (p. 8.) more or view all topics or full text.
03/01/21
2756H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Where a charging party shows employer conduct tended to influence employee decisions about whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees, the burden then shifts to the employer to plead and prove a business necessity as an affirmative defense. (p. 7.) more or view all topics or full text.
03/01/21
2756H Regents of the University of California
101.1000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General
PEDD section 3550 creates a new and more robust protection that is not subject to the free speech safe harbor of HEERA section 3571.3. (p. 7.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
1407.1000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles
When interpreting statutory language, PERB begins with the fundamental rule that it should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Where the language of a statute is clear and unambiguous the construction intended by the Legislature is obvious from the language used. Statutes are to be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers. Further, every statute should be construed with reference to the whole system of which it is a part so that all may be harmonized and have effect. Where the provisions of a statute are subject to two or more reasonable interpretations, the interpretation which will harmonize rather than conflict with other provisions thereof should be adopted. (pp. 20-21.) Generally, when the Legislature uses a word or phrase in a particular sense in one statute, the word or phrase should be understood to carry the same meaning when it appears in another statute dealing with the same subject matter. Government Code sections 16645 and 3550 deal with the same subject matter—employer conduct related to employee decisions about union support. The Legislature’s use of “deter” in both statutes thus indicates it intended for the word to be interpreted similarly in each. (p. 23.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
A variety of contextual factors may be relevant in assessing an employer’s asserted business justification for conduct which otherwise deters or discourages employee free choice, and will depend on the evidence and circumstances of each particular case. For example, truthfulness, whether an employer is responding to a misleading union communication, and employer motive, as well as the mode, frequency, and/or timing of a communication, may all be relevant considerations. (pp. 36-37.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
The Board applies a balancing test where an employer raises a legitimate business necessity for conduct which deters or discourages employees from authorizing union representation, choosing to become or remain a union member, or commencing or continuing to pay union dues or fees. Where a charging party shows employer conduct tended to influence employee decisions on one of these topics, the burden shifts to the employer. The degree of likely influence dictates the employer’s burden. If the likely influence is “inherently destructive” of employee free choice, then the employer must show that the deterring or discouraging conduct was caused by circumstances beyond its control and that no alternative course of action was available. For conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity and PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. Within the category of conduct or communications that are not inherently destructive of section 3550’s protections, the stronger the likelihood to influence employee free choice, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its conduct or communication to attain that purpose while limiting influence on employee free choice to the extent possible. If the likelihood of influence outweighs the asserted business necessity, PERB will find a violation. (pp. 35-36.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Where a charging party meets its burden to prove an employer violated PEDD section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550. A section 3553 violation shifts the burden to the employer to prove the mass communication does not tend to influence employee free choice. (p. 37.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PEDD section 3550 is not subject to the free speech safe harbor limitations of HEERA section 3571.3 because it does not duplicate the interference standard. (p. 28.) By the plain language of the statutes, section 3550 is not limited by section 3571.3. (p. 29.) Because the PEDD is in its own chapter separate from HEERA, section 3571.3 by its plain terms does not apply to conduct subject to section 3550. (p.30.) This interpretation is also supported by the overall statutory framework, precedent, legislative history, and longstanding labor law principles. more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PERB treats PEDD section 3550 even-handedly as prohibiting public employer conduct which tends to influence employee choices as to whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues. (p. 25.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.1000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
“Deter or discourage” in the context of PEDD section 3550 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. 21.) PERB looks first to the conduct or communication itself in determining whether it tends to influence employee free choice. But the Board 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. (p. 24.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
404.2000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS; Statements
In resolving an interference claim involving employer speech, the Board considers the employer’s statement in its overall context, i.e., in light of surrounding circumstances, to determine if an employee or union representative would objectively tend to feel that the statement coerces, restrains, or otherwise interferes with protected rights. One relevant factor is the extent to which a statement is truthful or misleading. (pp. 52-53.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
400.1000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
Violations of PEDD section 3550 do not require a showing of coercive effect, and thus do not give rise to derivative interference violations. (p. 53.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
400.1000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to protected rights under our statutes. Once a charging party establishes a prima facie case, the burden shifts to the employer. The degree of harm dictates the employer’s burden. (p. 52.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
101.1000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; In General
PEDD section 3550 is not subject to the free speech safe harbor limitations of HEERA section 3571.3 because it does not duplicate the interference standard. (p. 28.) By the plain language of the statutes, section 3550 is not limited by section 3571.3. (p. 29.) Because the PEDD is in its own chapter separate from HEERA, section 3571.3 by its plain terms does not apply to conduct subject to section 3550. (p.30.) This interpretation is also supported by the overall statutory framework, precedent, legislative history, and longstanding labor law principles. more or view all topics or full text.
03/01/21
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
In addition to the test for negotiability set forth in Anaheim Union High School District (1981) PERB Decision No. 177, where an employer contemporaneously decides to terminate bargaining unit work and replace employees with those of an independent contractor to do the same work under similar conditions, such decisions do not involve a change in the scope and direction of the enterprise or a core entrepreneurial decision beyond the scope of the collective bargaining obligation. When this kind of subcontracting is involved, there is thus no need to inquire into labor costs or to apply Anaheim or any other tests for negotiability, as the U.S. Supreme Court, the NLRB, and PERB have all concluded that, as a matter of law, such decisions are negotiable. (p. 37.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Using the test PERB set forth in Anaheim Union High School District (1981) PERB Decision No. 177 for the negotiability of subjects not specifically enumerated by statute as within the scope of representation, the Board has found subcontracting decisions to be negotiable if the management decision does not change the scope or direction of the enterprise. While a subcontracting decision may involve a managerial decision “at the core of entrepreneurial control” and “be based on factors not amenable to negotiation” (Ventura County Community College District (2003) PERB Decision No. 1547, p. 19), decisions involving personnel matters, such as absenteeism, workplace efficiency and employee turnover, are suitable for collective bargaining. Decisions to outsource which are based on labor costs, viz., “overall enterprise costs,” are “peculiarly suitable for resolution through the collective bargaining framework,” because the union has control over some enterprise costs (labor costs) and may make concessions through negotiations that “substantially mitigate the concerns underlying the employer’s decision, thereby convincing the employer to rescind its decision.” (Ibid.) (pp. 36-37.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
HEERA neither expressly enumerates nor excludes subcontracting decisions from the scope of representation. While such decisions involve managerial decisions regarding the merits, necessity or organization of services, activities or programs, they also unquestionably affect wages, hours and working conditions, including whether employees who have previously performed such work will be employed at all. Where a management decision affects the merits, necessity or organization of any service or activity provided by law, it may nonetheless be negotiable if intertwined with a negotiable decision. Put another way, a decision affecting negotiable matters does not become non-negotiable simply because other, non-negotiable matters are also implicated by the decision. (pp. 34-35.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
The University’s decision to subcontract the Young Musician’s Program was negotiable under either of two lines of PERB and federal cases. First, it was substantially motivated by labor costs and personnel problems which were peculiarly suitable for resolution through collective bargaining. University’s principal decisionmaker acknowledged that his decision to transfer the Program to a non-University entity was influenced by concerns that the Program consumed revenue from another department needed to cover salaries and other human resources expenditures, and that the Program was undergoing a period of growth and expansion, portending additional expenses in the future. Second, its practical effect was to replace University employees with those of another employer, the Young Musicians Choral Orchestra (YMCO), to perform essentially the same services under similar circumstances. The YMCO later “restored” the Program’s operations, pursuant to contractual agreements with the University. The YMCO uses University space for its performances. Its director is the same, its board president is the same, its marketing identity is largely the same, including its use of University trademarks and scripts, its musical instruments are the same, several of its teachers are the same, and the students served by the Program are also the same. We conclude that the University was not authorized to act unilaterally to close the Program and transfer operations to YMCO. (pp. 33, 38, 41.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
By closing the Young Musician’s Program at the UC Berkeley campus, laying off employees, and transferring the Program to an outside entity, the University changed policy. This change also had a generalized effect and continuing impact on terms and conditions of employment, inasmuch as “a bargaining unit is adversely affected when a work transfer results in layoffs or the failure to rehire bargaining-unit workers who would otherwise have been rehired.” (Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 659.) (pp. 32-33.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
504.14000: ; Other/In General
If the effect of the employer’s conduct on protected rights is comparatively slight, the balancing analysis focuses on whether that conduct was “reasonably adapted” to achieve the legitimate business purposes asserted. (NLRB v. Brown (1965) 380 U.S. 278, 288.) In such cases, the question of the employer’s motive is still very much at issue. In “comparatively slight” cases, if the employer comes forward with evidence that it acted for a legitimate and substantial purpose, the charging party must produce evidence of unlawful motive to sustain the charge. However, because we find the University’s conduct was inherently destructive of protected rights, no further proof of anti-union motive is necessary. Under Carlsbad Unified School District (1979) PERB Decision No. 89, an employer’s inherently destructive conduct “will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.” (Id. at pp. 10-11.) Private-sector authorities decided both before and after Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 articulate a slightly different standard, whereby the Board must balance the employer’s asserted business interest against the severity of the harm to protected rights. If the employer’s asserted business justification outweighs the harm to protected rights, there is no liability. However, if the asserted justification is insufficient to outweigh the harm to protected rights, the employer will be held liable for an unfair labor practice. Under this balancing analysis, the Board may find an unfair labor practice, even if the employer produces evidence that it acted for a legitimate business purpose. In the present circumstances, we find it unnecessary to reconcile the divergent tests under Carlsbad and the private-sector authorities from which Campbell draws its inspiration. Both lines of cases derive from NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26 and, under either analysis, the University has failed to justify its inherently destructive conduct. Program Director’s animus toward UC-AFT, which both prompted and infected University decisionmaker’s decision, was not a circumstance beyond the University’s control. Even under the apparently more lenient private-sector standard, the resulting harm outweighed the University’s asserted business justification. The permanent separation of the employees from their employment through layoffs, and their wholesale replacement with other, nonunionized employees, coupled with the destruction of the collective bargaining relationship itself resulting from subcontracting Young Musician’s Program, outweighs any legitimate business purpose asserted by the University in this case. (pp. 90-93.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
504.5000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
The University’s decision to close and subcontract the Young Musician’s Program may be fairly characterized as “inherently discriminatory” or what the Campbell and Great Dane courts referred to as “discrimination in its simplest form.” (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423, citing NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, 32.) While the layoff and subcontracting decisions did not facially distinguish between groups of employees on the basis of protected activity, as a response to the Churning Grievance, they “directly and unambiguously penalize[ ] or deter[ ] protected activity” by laying off employees and replacing them with a non-unionized workforce to perform what are, essentially, the same duties. (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757-758.) Moreover, laying off employees severs the employment relationship altogether and thus “creat[es] visible and continuing obstacles to the future exercise of employee rights,” while wholesale replacement of unionized employees with a non-union workforce has “far reaching effects which could hinder future bargaining,” because it negates employee choice and removes the very basis for collective bargaining. (Esmark, Inc. v. NLRB (7th Cir. 1989) 887 F.2d 739, 748.) Because we find that Program Director’s animus can be imputed to University’s decisionmaker inasmuch as it prompted his proposal and eventual decision to layoff and subcontract the Program, the University’s conduct also demonstrates hostility to the process of collective bargaining itself and makes it appear futile in the eyes of employees. (pp. 88-89.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
504.5000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
Board found direct evidence of nexus in the form of Program Director’s well-documented disdain for UC-AFT and Program Instructors’ protected activity, in addition to suspicious timing and other circumstantial evidence of unlawful motive. Regardless of University decisionmaker’s stated motives, it was clear that his decision-making process was tainted by Program Director’s hostility to the University’s collective bargaining obligations in general and to UC-AFT in particular. Under the subordinate bias liability theory, unlawful motive of a supervisor, manager or other lower-level official may be imputed to the decision-maker responsible for authorizing an adverse action, when the lower-level official recommended taking adverse action, the recommendation was motivated by protected activity, and the recommendation was a motivating factor or proximate cause of the decision to take adverse action. Even where the decision-maker’s action was entirely free of animus, the employer will nonetheless be held liable, if the decision was influenced by the unlawful animus of the lower-level official. Thus, to the extent Program Director’s demonstrably anti-union views were a contributing factor in the University’s decision to close and subcontract the Young Musician’s Program, there is direct evidence of nexus or inherently discriminatory conduct. (p. 84.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
504.14000: ; Other/In General
Board found direct evidence of nexus in the form of Program Director’s well-documented disdain for UC-AFT and Program Instructors’ protected activity, in addition to suspicious timing and other circumstantial evidence of unlawful motive. Regardless of University decisionmaker’s stated motives, it was clear that his decision-making process was tainted by Program Director’s hostility to the University’s collective bargaining obligations in general and to UC-AFT in particular. Under the subordinate bias liability theory, unlawful motive of a supervisor, manager or other lower-level official may be imputed to the decision-maker responsible for authorizing an adverse action, when the lower-level official recommended taking adverse action, the recommendation was motivated by protected activity, and the recommendation was a motivating factor or proximate cause of the decision to take adverse action. Even where the decision-maker’s action was entirely free of animus, the employer will nonetheless be held liable, if the decision was influenced by the unlawful animus of the lower-level official. Thus, to the extent Program Director’s demonstrably anti-union views were a contributing factor in the University’s decision to close and subcontract the Young Musician’s Program, there is direct evidence of nexus or inherently discriminatory conduct. (p. 84.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
504.14000: ; Other/In General
Conduct which “directly and unambiguously penalizes or deters protected activity” may appear in a simultaneous form, as where an employer is alleged to have offered, provided or maintained differential pay, benefits, hours, or working conditions between different groups of employees on the basis of union or other protected activity. Facially discriminatory conduct may also be sequential or non-contemporaneous, as when an employer changes policy in response to protected activity. For sequential discrimination, the relevant baseline for comparison is not different treatment between groups of employees, but between the employer’s policies before and after the exercise of protected rights. Here, the allegation is that the University laid off all Young Musician’s Program Instructors in response to the protected activity of some Program employees and their representative in asserting their collectively-bargained rights and prosecuting the Churning Grievance. This allegation is more aptly characterized as one involving sequential discrimination or reprisal for protected activity, rather than simultaneous discrimination against Program Instructors vis-à-vis other, University employees about whom no evidence was presented. (pp. 81-82.) more or view all topics or full text.
4310012/19/18