Regents of the University of California (PERB 2756H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEAMSTERS LOCAL 2010,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. SF-PE-5-H
PERB Decision No. 2756-H
March 1, 2021
Appearances: Beeson, Tayer & Bodine by Susan Garea, Attorney, for Teamsters
Local 2010; Sloan Sakai Yeung & Wong by Timothy G. Yeung, Attorney, for Regents
of the University of California.
Before Banks, Chair; Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Teamsters Local 2010 from the Office of the
General Counsel’s (OGC) dismissal of Teamsters’ unfair practice charge against the
Regents of the University of California. Teamsters’ charge alleges that the University
violated the Prohibition on Public Employers Deterring or Discouraging Union
Membership chapter, Government Code section 3550 (PEDD),1 when, in response to
a Teamsters organizing flyer, it posted a document on its website which compared
salary increases between represented and unrepresented staff, and then made a
1 PEDD is codified at Government Code section 3550 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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series of claims about the University’s efforts to compensate, protect, and support
unrepresented employees.
Having reviewed the parties’ arguments and all underlying pleadings, and in
light of the standard the Board articulated in Regents of the University of California
(2021) PERB Decision No. 2755-H (Regents), we reverse the dismissal and remand to
OGC to issue a complaint.
FACTUAL AND PROCEDURAL BACKGROUND2
Teamsters is the exclusive representative of several University bargaining units,
and is seeking to organize the University’s administrative professionals, most of whom
are unrepresented.3 As part of its organizing efforts, Teamsters distributed a flyer
describing the benefits of union representation. The flyer asserted that for fiscal years
2010-2011 through 2021-2022, Teamsters had negotiated 33 percent in compounded
wage increases and that total was approximately three times greater than the
2 In the present procedural posture, we assume that the charging party’s factual
allegations are true, and we view them in the light most favorable to the charging
party. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8
(Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622,
p. 4.) We do not rely on the respondent’s responses if they explicitly or implicitly create
a factual conflict with charging party’s factual allegations, even if the respondent’s
contrary responses are stated more persuasively or appear as though they may be
backed up by more supporting evidence, when compared to the charging party’s
allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas Valley Memorial
Healthcare System (2012) PERB Decision No. 2298-M, p. 13.)
3 On September 9, 2020, PERB granted Teamsters’ petition to place
approximately 1,000 University employees in the Administrative Officer 2 classification
into an existing Teamsters-represented bargaining unit. PERB may take official notice
of its own records and files. (Bellflower Unified School District (2017) PERB Decision
No. 2544, p. 6, fn. 4.)

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comparable total for unrepresented University employees during the same timeframe.
The flyer also asserted that union-represented employees enjoy the following benefits:
“Guaranteed Raises”; “Union Contract & Protections”; “Bargaining & Ratification by
Members”; “Grievance Procedure”; and “Union Representation.” The flyer made
corresponding assertions about unrepresented employees: “Raises when
Management Feels like It”; “No Protections at Work”; “You have No Voice”; “No
Rights”; and “You’re on Your Own.”
On November 26, 2018, the University published a document on its website
(the November 26 posting) responding to Teamsters’ flyer, purportedly to ensure
employees had “accurate information on these topics.” This document asserted that
between fiscal years 2007-2008 and 2018-2019, unrepresented University employees
received approximately 25 percent in non-compounded across-the-board wage
increases while the Teamsters-represented clerical unit received only 23 percent in
wage increases during the same timeframe. This document also disputed the
statements in Teamsters’ flyer by claiming that: (1) “UC has a demonstrated
commitment to paying market wages and providing regular pay raises to policy-
covered employees”;4 (2) “UC has numerous policies to ensure equitable treatment
and to protect employees’ rights”; (3) “There are numerous policies, procedures and
personnel to ensure that employees’ concerns and complaints are taken seriously and
addressed”; and (4) “Various personnel and programs exist to support and advocate
4 The University’s Personnel Policies for Staff Members set the terms and
conditions of employment for unrepresented employees. (Regents of the University of
California (1999) PERB Decision No. 1316-H, pp. 7-8.)

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for employees, including HR and ombuds offices, employee assistance programs, and
local staff assemblies and interest groups.”
On February 22, 2019, Teamsters filed the instant charge, alleging that the
University’s November 26 posting violated PEDD section 3550 by deterring or
discouraging public employees from becoming Teamsters members or supporting
Teamsters. On October 2, 2019, OGC dismissed Teamsters’ charge for failing to
identify any statements in the University’s communication that did not fall within the
protection of the safe harbor for non-coercive speech set by section 3571.3 of the
Higher Education Employer-Employees Relations Act (HEERA).5
On October 28, 2019, Teamsters appealed OGC’s dismissal, arguing OGC
applied the wrong standard and failed to consider a timely amended charge.6
Teamsters requested that if the matter was not remanded to cure the procedural
defect, the case be either held in abeyance until resolution of three unfair practice
charges filed against the University by Teamsters and several other unions (“Janus
5 HEERA is codified at section 3560 et seq.
6 Teamsters filed an amended charge by the deadline OGC established, and
the record does not reflect why OGC’s dismissal failed to recount that fact or,
apparently, consider the amended filing. In any event, Teamsters’ amended charge
expands on its legal argument without providing additional facts that would necessitate
further investigation, and we find that a complaint was warranted even absent the
amendment. (See Hartnell Community College District (2015) PERB Decision
No. 2452, p. 55 [finding it unnecessary to remand charge for further investigation
because the charge and supporting documents contained sufficient information to
state a prima facie case].) Accordingly, we do not remand this matter on procedural
grounds and instead address the merits of the appeal.

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letter cases”),7 or consolidated with these cases for purposes of oral argument on the
meaning of PEDD section 3550.8
On March 3, 2020, the Board granted the request for combined oral argument
in the Janus letter cases and the instant matter. The Board provided the following
direction to the parties:
“The Board invites argument as to whether it should apply
its longstanding interference standards in evaluating
alleged violations of Government Code § 3550, and, if not,
what standards the Board should apply, including any
potential defenses. In your argument, please address the
following two questions and any others you believe are
relevant:
“1. What statutory construction best describes the
relationship (if any) between § 3550 in the PEDD and
§ 3571.3 in HEERA?
“2. When interpreting the terms “deter” and “discourage,”
what is the relevance (if any) of (a) the definition of “deter”
in subdivision (a) of § 16645; (b) the employer’s motive;
(c) the truthfulness or misleading nature of the employer’s
communication or conduct; (d) the specific context in which
the communication or conduct occurred; and (e) any other
potentially relevant circumstances.
7 American Federation of State, County & Municipal Employees Local 3299 v.
Regents of the University of California, Case No. SF-CE-1188-H; University
Professional and Technical Employees, Communication Workers of America, Local
9119 v. Regents of the University of California, Case No. SF-CE-1189-H; and
Teamsters Local 2010 v. Regents of the University of California, Case No. SF-CE-
1192-H.
8 PERB consolidated the Janus letter cases for purposes of formal hearing.
When Teamsters filed the instant appeal, the Janus letter cases were pending before
the Board on exceptions and cross-exceptions, which included the University’s
request for oral argument. Later, all parties joined the request for oral argument.

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“In answering the above questions, please discuss whether
the same or different standards should apply in the two
contexts presently before the Board. First, we seek input on
the standards for determining whether an employer has
violated § 3550 while communicating with unrepresented
employees during a union organizing campaign. Second,
we seek input on the standards for assessing allegations
that an employer violated § 3550 through a mass
communication to represented employees, and we
specifically seek input on the extent to which the outcome
may be influenced by an employer’s compliance with
§ 3553.”
The Board held oral argument via a publicly viewable video-teleconference on July 23,
2020, and advocates appeared on behalf of each party.9 The Board issued its decision
in the Janus letter cases on March 1, 2021. (Regents, supra, PERB Decision
No. 2755-H.)
DISCUSSION
In resolving an appeal of a dismissal, we review OGC’s decision de novo. (Lake
Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5; City of
San Jose (2013) PERB Decision No. 2341-M, p. 47.) At this stage of the case, a
charging party’s burden “is not to produce evidence, but merely to allege facts that, if
proven true in a subsequent hearing, would state a prima facie violation.” (County of
Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) When reviewing a
charge, PERB does not resolve conflicting factual allegations; material factual conflicts
9 The Board initially scheduled the argument to occur in-person in April 2020
but rescheduled several times and ultimately conducted the argument remotely due to
the COVID-19 pandemic.

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must be resolved based upon evidence presented at a formal hearing. (Sacramento
City Unified School District (2010) PERB Decision No. 2129, p. 7.)
The PEDD 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.” (§ 3550.) “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. (Regents, supra, PERB Decision No. 2755-H, p. 21.) The test for “tends
to influence” is objective; it is a charging party’s prima facie burden to 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. (Id. at
p. 24.) Further, and as particularly relevant here, section 3550 creates a new and
more robust protection that is not subject to the free speech safe harbor of HEERA
section 3571.3. (Id. at pp. 28, 33.)
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. (Regents, supra, PERB Decision No. 2755, pp. 35-36.) The degree of likely
influence dictates the employer’s burden. (Ibid.) PERB will resolve such an asserted

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defense by weighing the tendency to deter or discourage against the employer’s
asserted business necessity. (Ibid.)
By its plain language, 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.10
Although Regents, supra, 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.11
Under the standard set out in Regents, Teamsters’ unfair practice charge states
a prima facie case that the University’s November 26 posting tends to influence
employee free choice. The University circulated the communication during an
10 While that is the most common circumstance in which such decisions arise,
decisions whether or not to authorize representation may also occur when employees
seek to decertify their existing exclusive representative and choose a new
representative or no representative.
11 Different factors or differing emphases may be in play when assessing
potential likely influence on employee free choice, as well as an employer’s asserted
business necessity during an organizing campaign. For instance, at the formal hearing
in this matter, the parties may litigate the truthfulness or misleading nature of their
respective communications. But, as with communications to represented employees,
the scope and weight of relevant contextual factors will develop through case law.

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organizing campaign in direct response to Teamsters’ communication seeking
employee support. The November 26 posting suggested that Teamsters’ wage
increases are less substantial than unrepresented clerical employees’ wage
increases, and that unrepresented employees already have sufficient job protections,
thereby tending to influence employee decisions on union membership and support.
To the extent the University alleges that its November 26 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. For example,
Teamsters’ charge alleges the University’s posting is inaccurate and misleading, while
the University alleges its posting is both accurate and necessary to counter the
Teamsters’ purportedly misleading flyer. A hearing also 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. (Regents, supra, PERB Decision No. 2755-H, pp. 24, 36.) Thus, the
formal hearing process is the appropriate venue for Teamsters to prove its case, and
the University to present its affirmative defense, viz. to demonstrate that its asserted
business necessity outweighs the tendency of its communication to influence
employee free choice.
Assuming the factual allegations in the charge are true and viewing them in the
light most favorable to Teamsters, we find Teamsters’ charge alleged a prima facie
case that the University’s November 26 posting deterred or discouraged public
employees in violation of the PEDD. Accordingly, a complaint must issue.

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ORDER
The dismissal of the unfair practice charge in Case No. SF-PE-5-H is
REVERSED. This matter is REMANDED to the Office of the General Counsel to issue
a complaint alleging that the Regents of the University of California’s November 26,
2018 posting deterred or discouraged public employees from authorizing union
representation and/or becoming union members in violation of PEDD section 3550.
Chair Banks and Members Shiners and Krantz joined in this Decision.