State of California (Department of Personnel Administration) * * * VACATED by State of California (Department of Personnel Administration) PERB Decision No. 2106a-S (PERB 2106S)

VACATED by State of California (Department of Personnel Administration)
PERB Decision No. 2106a-S
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS' ASSOCIATION,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL 	ADMINISTRATION),
Respondent.
Case No. SA-CE-1636-S
PERB Decision No. 2106-S
April 30, 2010
Appearances: Carroll, Burdick & McDonough by Gregg McLean Adam and Erick V. Munoz,
Attorneys, for California Correctional Peace Officers' Association; Christopher E. Thomas,
Labor Relations Counsel, for State of California (Department of Personnel Administration).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Correctional Peace Officers' Association
(CCPOA) of a Board agent's dismissal of its unfair practice charge. The charge alleged that
the State of California (Department of Personnel Administration) (DPA or State)1 violated the
Ralph C. Dills Act (Dills Act)2 by interfering with and discriminating against union members
when it provided enhanced dental benefits at a reduced cost to non-union members3. 	CCPOA
1 PERB initially incorrectly cited the charge as filed against the Department of
Corrections and Rehabilitation.
2 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
3 CCPOA withdrew a unilateral change allegation during the investigation of the
charge.

alleged that this conduct constituted a violation
of
Dills Act section 3519(a). The Board agent
dismissed the charge for failing to state a prima facie case
of
discrimination or interference.
The Board reviewed the dismissal and the record in light
of
CCPOA's appeal, DPA's
response to the appeal and the relevant law. Based on this review, the Board affirms in part,
and reverses in part, the dismissal
of
the unfair practice charge.
BACKGROUND
CCPOA is the exclusive representative
of
the employees in State Bargaining Unit
6.
CCPOA and the State are parties to an expired memorandum
of
understanding (MOU) with a
term
of
July
1,
2001 through July 2, 2006. For many years, CCPOA and the State agreed that
the CCPOA Benefit Trust Fund would provide certain benefits to Unit 6 members, including
dental and vision benefits.4 Article 13.02
of
the MOU required the State "to provide CCPOA
the net sum
of
$44.33 per month per eligible employee for the duration
of
this agreement to
provide a dental benefit through the CCPOA Benefit Trust Fund."
Prior to expiration
of
the MOU, CCPOA and the State initiated negotiations for a
successor agreement. Negotiations eventually stalled and the parties participated in impasse
procedures with a mediator. On September 6, 2007, the mediator confirmed that CCPOA had
withdrawn from mediation. On September 18, 2007, DP A notified CCPOA that the State was
implementing its last, best and final offer (LBFO).
4 The CCPOA Benefit Trust Fund is an independent corporation established by CCPOA
and maintained in accordance with the terms of the federal Employee Retirement Income
Security Act of 1974 (ERISA). Three trustees are selected by CCPOA members and two
trustees are appointed by the CCPOA President. In addition, the CCPOA president and the
treasurer are ex-officio trustees. The Benefit Trust Fund defines a "Participant" as "a person
who is or was a member of CCPOA or Bargaining Unit No. 6 or who may become eligible for
benefits under the Plan or who otherwise qualifies as a participant under ERISA."
2

The LBFO "rolled-over" numerous provisions
of
the expired MOU, including
Article 13.02. Pursuant to this article, the State continued to provide funding to CCPOA to
provide Unit 6 employees with a dental benefit through the Benefit Trust Fund.
On October 29, 2007, the Benefit Trust Fund administrator wrote to the State
Controller's Office (SCO) requesting that the SCO stop collecting and remitting to the Benefit
Trust Fund, the dental and vision benefit contributions from non-union member employees.
The letter further stated:
As such, it will be the responsibility
of
the DP A to arrange for
these benefits to be provided to the impacted employees through
another source.
On October 31, 2007, in a letter to the Department
of
Corrections and Rehabilitation,
the Benefit Trust Fund administrator stated:
[E]ffective November
1,
2007, the CCPOA Benefit Trust Fund
("Trust Fund") is no longer able to provide former fair share
members with dental and vision benefits through the CCPOA
Dental and Vision Plans. Therefore, it is absolutely necessary
that notice be provided to these individuals immediately to
inform them
of
this change and advise them to immediately
contact their State Personnel Offices to enroll in another State
of
California vision and dental plan.
In a letter dated November 5, 2007, DPA notified non-union member employees
that the Benefit Trust Fund had terminated their dental and vision benefits effective
October 31, 2007. Non-union members were told they would automatically be enrolled in
the state-sponsored vision plan. DP A also invited non-union members to enroll in one
of
several existing state-sponsored dental plans that were offered to other state employees.
As a result, while the State's contribution toward a union member's dental benefit remains at
$44.33 per month, the State's contribution for non-union members can, according to the
charge, be as much as $93. 7 5 per month. After enrolling in a state-sponsored dental plan,
3

non-union members with two dependents pay $30.94 per month toward their dental benefit
premiums, while CCPOA members with two dependents pay a dental premium
of
$41.80
per
month.
	DPA
did not offer the lower cost dental plan to union members.
DISCUSSION
Dills Act section 3 515 provides state employees with "the right to form, join, and
participate in the activities
of
employee organizations
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations." Interference with or
discrimination against employees because
of
their participation in union activities is an unfair
practice. Dills Act section 35 l 9(a) states that it is unlawful for the State 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 this chapter.
Early PERB decisions show the Board looked to the National Labor Relations Board
(NLRB) for guidance5 in applying an identical statute under the Educational Employment
Relations Act (EERA).6 (San Dieguito Union High School District (1977) EERB7 Decision
No. 22; Carlsbad.) The National Labor Relations Act (NLRA)8 contains similar, but not
5 Although it is not bound by decisions
of
the NLRB, the Board will take cognizance
of
NLRB precedent where appropriate, as an aid in interpreting identical or analogous provisions
of
the statutes. (Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).)
6
EERA is codified at Section 3540 et seq. EERA section 3543.5(a) states, in relevant
part, that it is unlawful for a public school employer 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 this chapter.
7 Prior to January I, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
8 The NLRA is codified at 29 U.S.C. sec. 151 et seq.
4

identical, language prohibiting employer interference and discrimination. NLRA section
8(a)(l) provides that it is an unfair labor practice for an employer "to interfere with, restrain, or
coerce employees in the exercise
of
the rights guaranteed in section 157." (Emphasis added.)
Unlawful intent or motive is not a necessary element
of
a Section 8(a)(l) interference charge.
(American Freightways
Co.
(1959) 124 NLRB 146, 147.) NLRA section 8(a)(3) makes it
unlawful for an employer "by discrimination in regard to hire or tenure
of
employment or any
term or condition
of
employment to encourage or discourage membership in any labor
organization." (Emphasis added.) Unlawful motive is in most cases a required element to find
discrimination in violation ofNLRA section 8(a)(3). (NLRB
v.
Transportation Management
Corp. (1983) 462 U.S. 393, 401.)
In Carlsbad, the Board observed that, unlike the NLRA, EERA's prohibitions on
interference and discrimination are contained in the same subsection
of
the statute.
Accordingly, the Board laid out a single test to establish a violation
of
both the interference
and discrimination prohibitions in EERA section 3543.5(a):
2.	
Where the charging party establishes that the employer's
conduct tends to or does result in some harm to employee rights
granted under the EERA, a prima facie case shall be deemed to
exist;
3. \\lhere the harm to the employees' rights is slight, and the
employer offers justification based on operational necessity, the
competing interest
of
the employer and the rights
of
the
employees will be balanced and the charge resolved accordingly;
4. Where the harm is inherently destructive
of
employee rights,
the employer's 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;
5. Irrespective of the foregoing, a charge will be sustained where
it is shown that the employer would not have engaged in the
5

complained-of conduct but for an unlawful motivation, purpose
or intent. [9l
In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board
clarified the separate standards
of
proof for interference and discrimination violations. 	The
Board adopted the NLRB' s test for discrimination set out in Wright Line (1980)
251
NLRB
1083, holding that unlawful motive is an essential element
of
a discrimination violation. As
for interference allegations, the Board explained that the test for whether a respondent
interfered with employee rights does not require that unlawful motive be established, only that
at least slight harm to employee rights results from the conduct.
Interference
To establish a prima facie case
of
unlawful interference under the Dills Act, a charging
party must establish that the employer's conduct tends to or does result in some harm to
employee rights granted under the statute. (Novato; State
of
California (Department
of
Developmental Services) (1983) PERB Decision No. 344-S.) In Clovis Unified School District
(1984) PERB Decision No. 389, the Board held that a finding
of
coercion does not require
9 The Board was clearly influenced by the standard set forth in NLRB
v.
Great Dane
Trailers (1967) 388 U.S. 26 (Great Dane). In Great Dane, the U.S. Supreme Court found an
employer's conduct to be "discriminatory" under NLRA section 8(a)(3) if: 	(1) its effect on
employee rights was "inherently destructive" and the employer was unable "to establish that he
was motivated by legitimate objectives;" or (2) the effect was "comparatively slight" and the
employer could not justify a substantial and legitimate business purpose. (Id., at p. 34.)
Unlike the standard 8(a)(3) discrimination test, the Great Dane test does not require the
charging party to establish the employer's unlawful motive. In this respect, the Great Dane
standard is similar to the NLRB's test for interference under NLRA section 8(a)(l), which
requires that: (1) employees engaged in protected activity; (2) the employer's conduct tends to
interfere with, restrain or coerce employees in the exercise of those activities; and (3) the
employer's conduct was not justified by legitimate business reasons. (Fun Striders, Inc.
v.
NLRB (9th Cir. 1981) 686 F.2d 659.) Despite this similarity, federal courts and the NLRB
have continued to apply Great Dane to find 8(a)(3) violations in cases where employers treated
groups of employees differently based on their participation in protected activity. (National
Fabricators
v.
NLRB (5th Cir. 1990) 903 F.2d 396 [employer selected for layoff those
employees likely to engage in picketing]; Northeast Constructors (1972) 198 NLRB 846
[employer refused to rehire laid off employees who had previously served as union stewards].)
6

evidence that the employee actually felt threatened or intimidated or was in fact discouraged
from participating in protected activity.
Once a prima facie case
of
interference is established, the burden shifts to the employer
to justify its conduct due to operational necessity
if
the harm is slight, or where the harm is
inherently destructive
of
employee rights, to show that its conduct should be excused because
of
circumstances beyond the employer's control. (Carlsbad; Novato.)
On October 31, 2007, the CCPOA Benefit Trust Fund notified the State that it would
stop providing dental benefits to non-union members effective November 1, 2007. The Benefit
Trust Fund advised the State to inform non-union members to enroll in another state dental
benefit plan. DP A quickly notified non-union members
of
their option to enroll in the state-
sponsored dental plans. CCPOA contends that the State created a disparity when non-union
members were able to obtain enhanced dental benefits at a slightly lower cost than union
members. The option to enroll in state-sponsored dental plans was not offered to union
members.
CCPOA contends the State has provided "enhanced" dental benefits to non-union
members because the amount
of
the State's contribution for the state-sponsored dental plan is
larger than the State's contribution toward the CCPOA dental plan. This claim fails, however,
because there are no facts to show that the state-sponsored dental plan provides greater
benefits. The mere fact that the State pays more for the state-sponsored plan does not
demonstrate that the State plan provides enhanced benefits over the CCPOA dental plan.
CCPOA union member employees exercised rights protected by the Dills Act when
they chose to become members of the union. CCPOA has not alleged that the difference in
benefit costs for union and non-union members resulted in actual harm to the rights of union
members. There is no evidence that any union member employees opted to resign their union
7

membership in order to obtain dental benefits at a reduced cost, or that any non-union
employees declined membership because
of
the benefit cost. Nor did CCPOA allege that any
union member requested to switch to the state-sponsored plan and was denied. Thus, there is
no evidence
of
actual harm to employee rights.
However, the lower cost dental benefit was not offered to union members. Providing
benefits at a lower cost to non-union members, while excluding union members from this
option, tends to result in at least slight harm to employees who choose to exercise the right to
join a union. A reduced benefit cost available only to non-union members may influence an
employee's decision to join the union. Accordingly, the charge states a prima facie case
of
mter1erence.• 	C 	10
Discrimination
CCPOA also alleges the State discriminated against union members by providing lower
cost dental benefits to non-union members.
As explained above, the Board in Novato adopted the NLRB's Wright Line standard for
discrimination. To demonstrate that an employer discriminated against an employee in
violation
of
Dills Act section 3519(a), the charging party must show that: (1) the employee
exercised rights under the Dills Act; (2) the employer had knowledge
of
the exercise
of
those
rights; (3) the employer took adverse action against the employee; and (4) the employer took
the action because
of
the exercise
of
those rights. (Novato; State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S.)
Once a prima facie case of discrimination is established, an employer may justify its
conduct by demonstrating that it would have taken the adverse action even if the employee had
10 At this stage of the charge review, the Board decides only whether the factual
allegations state a prima facie case. It is not appropriate at this point to determine whether
DP A's actions were justified due to operational necessity and/or circumstances beyond the
employer's control.
8

not engaged in protected activity. (Novato; Wright Line,· McPherson
v.
PERB (1987) 189
Cal.App.3d 293.)
Clearly, union member employees exercised rights under the Dills Act when they opted
to
join
the union. DPA was aware
of
the employees' union membership status as it sent a
notice only to non-union members regarding the termination
of
their benefits by
CCPOA's
Benefit Trust Fund.
In determining whether evidence
of
adverse action is established, the Board uses an
objective test and will not rely on the subjective reactions
of
the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689 (Palo Verde).) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added;
fn. omitted.)
The charge fails to establish that the State took adverse action against union members.
No action was taken against union members that either imposed discipline or changed their
terms and conditions
of
employment. Union members continued to receive the same dental
benefits at the same employee contribution rate. There was no impact on the employees'
employment.
The Board has held that an adverse action must involve actual, not merely speculative,
harm to the employee's employment. (Palo Verde; City & County
of
San Francisco (2004)
PERB Decision No. 1664-M.) In Palo Verde, a teacher, who served as a union bargaining
team member, performed an extra-duty assignment as the district computer coordinator. When
9

a strike was imminent, the district relocated the teacher from his extra-duty office located next
to the school superintendent's office, to a classroom. The Board held that the teacher was not
adversely affected because his duties and compensation remained the same. The Board refused
to give weight to the teacher's subjective view that he suffered a loss
of
prestige due to the
relocation. The Board has similarly rejected other conduct that did not change an employee's
employment terms. (County
of
Riverside (2009) PERB Decision No. 2065-M [reclassification
not adverse because pay and job duties remained the same]; Alvord Unified School District
(2009) PERB Decision No. 2021 [no impact on compensation or number
of
classes taught by
change in class schedule].)
In City
of
San Diego (2005) PERB Decision No.
173
8-M (San Diego), the Board
adopted the administrative law judge's proposed decision that found the denial
of
a benefit to
be an adverse action. San Diego arises under the Meyers-Milias-Brown Act (MMBA), which
contains a non-discrimination provision similar to the Dills Act.
11
In San Diego, the city and union negotiated an agreement to provide employees with a
flexible benefits plan. Employees were required to apply the employer's benefit contribution
amount to select a health insurance plan and a life insurance plan. With the remaining funds,
employees could select from additional benefit options. However, the dental and vision
benefits were open only to union members and agency fee payers. The charging party in this
11
The MMBA is codified at Section 3500 et seq. MMBA section 3506 states:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
MMBA section 3502 grants public employees "the right to form, join, and participate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations."

case, neither a union member nor an agency fee payer, was denied the opportunity to select the
dental and vision benefits.
12
The Board in San Diego held that the denial
of
the benefit opportunity was an adverse
action. However, the Board incorrectly applied the Novato discrimination standard to find an
adverse action. The Board relied on the "discrimination" test in Campbell lvfunicipal
Employees Assn.
v.
City
of
Campbell (1982)
131
Cal.App.3d 416 (Campbell), as the basis for
applying, in part, the Novato standard for discrimination.
In Campbell, during negotiations for a new contract, the union and the city reached
impasse over two issues. Among the terms on which the parties had reached agreement was
that any wage and fringe benefit increases would be retroactive to October
1,
1978. Following
an impasse hearing before the city council, the city council adopted the city negotiator's
position on the two disputed issues, but also modified the retroactive application
of
benefits
from October
1,
1978 to February
1,
1979, an issue that was not a subject
of
the impasse
proceedings. The court noted that the retroactive date for application
of
benefits for all other
represented employees remained October
1,
1978, and that this union was the only union to
utilize the impasse procedures.
The court in Campbell applied the standard set out in Great Dane to find the city's
conduct was discriminatory. The court found the employees' participation in the impasse
procedures was a protected right. The court then concluded that the city's conduct, changing
the retroactive date, had either an "inherently destructive" or "comparatively slight" effect on
employee rights. The court found it unnecessary to decide the level
of
harm to employee rights
because the city did not provide any justification for its conduct. Although the court labeled
2 The negotiated agency shop provision applied only to newly hired employees.
Existing employees were not required to join the union or pay fair share fees.
11

the city's conduct discriminatory, it did not consider whether the city took adverse action
against bargaining unit employees.
13
Thus, in San Diego, the Board erred in applying the Novato discrimination standard to
find adverse action. Accordingly, that portion
of
San Diego is overruled.
14
As the charge in the present case does not demonstrate that the State took adverse
action against union members when it provided non-union members with a lower cost dental
benefit, the dismissal
of
the discrimination allegation is affirmed.
ORDER
The Public Employment Relations Board (Board) AFFIRMS the dismissal in Case
No. SA-CE-1636-S
of
the allegation that the State
of
California (Department
of
Personnel
Administration) (State) discriminated against union members.
The Board REVERSES the dismissal
of
the allegation that the State interfered with the
rights
of
union members and REMANDS that allegation to the Office
of
the General Counsel
for issuance
of
a complaint consistent with this Decision.
Chair Dowdin Calvillo joined in this Decision.
Member McKeag's concurrence and dissent begins on page 13.
13
Similarly, in San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976)
55 Cal.App.3d 553 (San Leandro), the court found that by providing different benefits to non-
represented management employees and represented rank and file employees, the city both
interfered with and discriminated against union represented employees in violation
of MMBA
section 3506. The court in San Leandro also did not determine that the employer took adverse
action against the employees to find the city's conduct was discriminatory.
14 The Board in San Diego additionally utilized the Campbell interference analysis,
applying the inherently destructive/comparatively slight standard to find that the union's denial
of a benefit to a unit member affected the employee's rights and thus violated the MMBA.
12

McKEAG, Member, concurring and dissenting: I agree with the majority's ruling that
the State of California (Department of Personnel Administration) (State) did not discriminate
against California Correctional Peace Officers' Association (CCPOA) members when it
offered non-members dental insurance normally available to other state employees. I
respectfully dissent, however, from the majority's ruling that the State committed unlawful
interference based on the same conduct.
In order to find unlawful interference, the Public Employment Relations Board (PERB)
has held that the charging party must establish that the respondent's conduct tends to or does
result in some harm to employee rights granted under the Ralph C. Dills Act. (State of
California (Department of Developmental Services) (1983) PERB Decision No. 344-S, citing
Carlsbad Unified School District (1979) PERB Decision No. 89 and Service Employees
International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
In the instant case, CCPOA members continued to enjoy the exact same dental benefits
after the implementation of the State's last best and final offer. When CCPOA Benefit Trust
Fund refused to provide dental benefits to the former CCPOA agency fee payers, the State was
faced with a choice to either offer these employees the dental benefit currently offered to non-
CCPOA members or to provide no dental benefit. Clearly, the latter option was untenable and
would have likely resulted in litigation. Therefore, the State had only one legitimate option,
and it exercised that option. The mere fact that non-CCPOA members were provided dental
benefits available to other non-Bargaining Unit 6 members simply does not constitute a harm
in this instance.
Based on the foregoing, I find the State's conduct simply did not result in any harm to
employee rights. Accordingly, I conclude the interference charge should be dismissed for
failure to establish a prima facie case.
13