State of California (Department of Personnel Administration) * * * OVERRULED IN PART by Los Angeles County Superior Court (2018) PERB Decision No. 2566-C (PERB 2106SA)

OVERRULED IN PART by Los Angeles County
Superior Court (2018) PERB Decision No. 2566-C
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. 2106a-S
March 1, 2011
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) violated the
Ralph C. Dills Act (Dills Act)1 by interfering with and discriminating against union members
when it provided enhanced dental benefits at a reduced cost to non-union members.2 CCPOA
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 Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 CCPOA withdrew a unilateral change allegation during the investigation of the
charge.

The Board reviewed the dismissal and the record in light
of
CCPOA's appeal, DP
A's	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 reverses the	response to the appeal and the relevant law. Based on this review, the Board reverses the
dismissal
of
the unfair practice charge.
PROCEDURAL HISTORY	PROCEDURAL HISTORY
CCPOA filed the instant unfair practice charge on December
7,
2007. The charge, as	CCPOA filed the instant unfair practice charge on December 7, 2007. The charge, as
amended, alleged that the State violated Dills Act section 3519(a) by providing enhanced	amended, alleged that the State violated Dills Act section 3519(a) by providing enhanced
dental benefits to non-members at a lower cost than that paid by CCPOA members. The Boarddental benefits to non-members at a lower cost than that paid by CCPOA members. The Board
agent found that the allegations failed to establish a prima facie case under either a	agent found that the allegations failed to establish a prima facie case under either a
discrimination or interference theory and dismissed the charge.	discrimination or interference theory and dismissed the charge.
CCPOA appealed the dismissal to the Board. On April 30, 2010, the Board issued State	CCPOA appealed the dismissal to the Board. On April 30, 2010, the Board issued State
of
California (Department
of
Personnel Administration) (2010) PERB Decision No. 2106-S.of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S.
In that decision, the Board affirmed the dismissal
of
the discrimination allegation but found the	In that decision, the Board affirmed the dismissal of the discrimination allegation but found the
charge established a prima facie case
of
interference. The Board remanded the case to
the	charge established a prima facie case of interference. The Board remanded the case to the
Office of the General Counsel for issuance of a complaint on the interference allegation.	Office
of
the General Counsel for issuance
of
a complaint on the interference allegation.
On May 28, 2010, CCPOA filed a petition for writ
of
mandate in Alameda Superior	On May 28, 2010, CCPOA filed a petition for writ of mandate in Alameda Superior
Court, seeking to compel PERB to issue a complaint on the discrimination allegation
in
its	Court, seeking to compel PERB to issue a complaint on the discrimination allegation in its
charge based on Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131charge based on Campbell Municipal Employees Assn. v. City of Campbell (1982) 131
Cal.App.3d 416 (Campbell). 	On September 27, 2010, the superior court granted
CCPOA'sCal.App.3d 416 (Campbell). On September 27, 2010, the superior court granted CCPOA's
petition and ordered PERB to issue a complaint on the discrimination allegation. As
part ofpetition and ordered PERB to issue a complaint on the discrimination allegation. As part of
PERB's compliance with that order, the Board hereby vacates State
of
California (DepartmentPERB's compliance with that order, the Board hereby vacates State of California (Department
of
Personnel Administration), supra, PERB Decision No. 2106-S and replaces it with thisof Personnel Administration), supra, PERB Decision No. 2106-S and replaces it with this
decision.	decision.
2
dismissal of the unfair practice charge.
2

BACKGROUND	BACKGROUND
CCPOA is the exclusive representative
of
the employees in State Bargaining Unit 6.	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	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 thatterm 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	the CCPOA Benefit Trust Fund would provide certain benefits to Unit 6 members, including
dental and vision benefits.3 Article 13.02
of
the MOU required the State "to provide CCPOAdental and vision benefits.' 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 tothe 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."	provide a dental benefit through the CCPOA Benefit Trust Fund."
Prior to expiration of the MOU, CCPOA and the State initiated negotiations for a	Prior to expiration
of
the MOU, CCPOA and the State initiated negotiations for a
successor agreement. Negotiations eventually stalled and the parties participated in impassesuccessor agreement. Negotiations eventually stalled and the parties participated in impasse
procedures with a mediator. On September 6, 2007, the mediator confirmed that CCPOA hadprocedures with a mediator. On September 6, 2007, the mediator confirmed that CCPOA had
withdrawn from mediation. On September 18, 2007, DPA notified CCPOA that the State was	withdrawn from mediation. On September 18, 2007, DPA notified CCPOA that the State was
implementing its last, best and final offer (LBFO).	implementing its last, best and final offer (LBFO).
The LBFO "rolled-over" numerous provisions of the expired MOU, including	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	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.	provide Unit 6 employees with a dental benefit through the Benefit Trust Fund.
On October 29, 2007, the Benefit Trust Fund administrator sent a letter to the
State	On October 29, 2007, the Benefit Trust Fund administrator sent a letter to the State
Controller's Office (SCO) requesting that the SCO stop collecting and remitting to the Benefit	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.	Trust Fund the dental and vision benefit contributions from non-union member employees.
The letter further stated:	The letter further stated:
3 The CCPOA Benefit Trust Fund is an independent corporation established by CCPOA	The CCPOA Benefit Trust Fund is an independent corporation established by CCPOA
and maintained in accordance with the terms of the federal Employee Retirement Incomeand 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
twoSecurity 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 thetrustees 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 persontreasurer 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 forwho 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."	benefits under the Plan or who otherwise qualifies as a participant under ERISA."
3

As such, it will be the responsibility of the DPA to arrange for	As such, it will be the responsibility of the DP A to arrange for
these benefits to be provided to the impacted employees through	these benefits to be provided to the impacted employees through
another source.	another source.
On October 31, 2007, in a letter to the Department of Corrections and Rehabilitation,	On October 31, 2007, in a letter to the Department of Corrections and Rehabilitation,
the Benefit Trust Fund administrator stated:	the Benefit Trust Fund administrator stated:
[E]ffective November 1, 2007, the CCPOA Benefit Trust Fund	[E]ffective November 1, 2007, the CCPOA Benefit Trust Fund
("Trust Fund") is no longer able to provide former fair share	("Trust Fund") is no longer able to provide former fair share
members with dental and vision benefits through the CCPOA	members with dental and vision benefits through the CCPOA
Dental and Vision Plans. Therefore, it is absolutely necessary	Dental and Vision Plans. Therefore, it is absolutely necessary
that notice be provided to these individuals immediately to	that notice be provided to these individuals immediately to
inform them of this change and advise them to immediately	inform them of this change and advise them to immediately
contact their State Personnel Offices to enroll in another State of	contact their State Personnel Offices to enroll in another State of
California vision and dental plan.	California vision and dental plan.
4
In a letter dated November 5, 2007, DPA notified non-union member employees	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	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	October 31, 2007. Non-union members were told they would automatically be enrolled in
the state-sponsored vision plan. DPA also invited non-union members to enroll in one of	the state-sponsored vision plan. DPA also invited non-union members to enroll in one of
several existing state-sponsored dental plans that were offered to other state employees.	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	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	$44.33 per month, the State's contribution for non-union members can, according to the
charge, be as much as $93.75 per month. After enrolling in a state-sponsored dental plan,	charge, be as much as $93. 7 5 per month. After enrolling in a state-sponsored dental plan,
non-union members with two dependents pay $30.94 per month toward their dental benefit	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	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.	month. 	DPA did not offer the lower cost dental plan to union members.
DISCUSSION	DISCUSSION
This case presents an opportunity for the Board to clarify PERB' s interference and	This case presents an opportunity for the Board to clarify PERB's interference and
discrimination standards. Before doing so, however, it is instructive to examine the	discrimination standards. Before doing so, however, it is instructive to examine the

interference and discrimination standards under the National Labor Relations Act (NLRA), * a	interference 	under 4
and discrimination standards 	the National Labor Relations Act (NLRA),	
ass
well as California courts' application
of
those standards in cases arising under the Meyers-well as California courts' application of those standards in cases arising under the Meyers-
Milias-Brown Act (MMBA). 5
Milias-Brown Act (MMBA).
1 .
1.
	Interference and Discrimination Under the NLRA	Interference and Discrimination Under the NLRA
Section 7 of the NLRA provides, in relevant part:	Section 7
of
the NLRA provides, in relevant part:
Employees shall have the right to self-organization, to form, join,	Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through	or assist labor organizations, to bargain collectively through
representatives
of
their own choosing, and to engage in other	representatives of their own choosing, and to engage in other
concerted activities for the purpose
of
collective bargaining or	concerted activities for the purpose of collective bargaining or
other mutual aid or protection.	other mutual aid or protection.
Under section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer	Under section 8(a)(l)
of
the NLRA, it is an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise
of
the rights guaranteed
in"to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in
section [7]." To establish interference, the NLRB's general counsel must prove that:	section [7]." To establish interference, the NLRB's general counsel must prove that:
(1) employees engaged in protected activity; (2) the employer's conduct tends to interfere with,
(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
restrain, or coerce employees in the exercise of those activities; and (3) the employer's conduct
\,Vas
not justified by legitimate business reasons. (Fun Striders, Inc.
v.
NLRB (9th Cir. 1981)was not justified by legitimate business reasons. (Fun Striders, Inc. v. NLRB (9th Cir. 1981)
686 F.2d 659, 661-662.) The general counsel need not prove that the employer acted
with686 F.2d 659, 661-662.) The general counsel need not prove that the employer acted with
unlawful intent or motive. (American Freightways
Co.
(1959) 124 NLRB 146, 147.)
unlawful intent or motive. (American Freightways Co. (1959) 124 NLRB 146, 147.)
Under NLRA section 8(a)(3), it is an unfair labor practice for an employer "byUnder NLRA section 8(a)(3), it is an unfair labor practice for an employer "by
discrimination in regard to hire or tenure
of
employment or any term or condition
of
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." The n1ajority
employment to encourage or discourage membership in any labor organization." The majority
4 The NLRA is codified at 29 U.S.C. section 151 et seq. Although it is not
bound
byThe NLRA is codified at 29 U.S.C. section 151 et seq. Although it is not bound by
decisions of the National Labor Relations Board (NLRB), the Board will take cognizance
ofdecisions of the National Labor Relations Board (NLRB), the Board will take cognizance of
NLRB precedent, where appropriate, as an aid in interpreting identical or analogous provisionsNLRB precedent, where appropriate, as an aid in interpreting identical or analogous provisions
in the statutes PERB administers. (Carlsbad Unified School District (1979) PERBin the statutes PERB administers. (Carlsbad Unified School District (1979) PERB Decision
No. 89 (Carlsbad).)	No. 89 (Carlsbad).)
5
The MMBA is codified at Section 3500 et seq. Although PERB must follow
5 The MMBA is codified at Section 3500 et seq. Although PERB must follow
judicial interpretations of the MMBA in unfair practice cases arising under that statute	judicial interpretations of the MMBA in unfair practice cases arising under that statute
(MMBA, § 3509, subd. (b )), it is not bound by those interpretations in cases arising under the(MMBA, $ 3509, subd. (b)), it is not bound by those interpretations in cases arising under the
other statutes it administers, including the Dills Act.	other statutes it administers, including the Dills Act.
5

of
section 8(a)(3) cases are decided under the framework set out by the NLRB in Wright
Line	of section 8(a)(3) cases are decided under the framework set out by the NLRB in Wright Line
(1980) 251 NLRB 1083 (Wright Line). The object
of
the Wright Line analysis is to determine(1980) 251 NLRB 1083 (Wright Line). The object of the Wright Line analysis is to determine
whether the employer took an adverse action against an employee because
of
the employee'swhether the employer took an adverse action against an employee because of the employee's
protected activity. (Id. at
p.
1089.) To establish a prima facie case
of
discrimination underprotected activity. (Id. at p. 1089.) To establish a prima facie case of discrimination under
Wright Line, the general counsel must prove that the employee's protected activity was a	Wright Line, the general counsel must prove that the employee's protected activity was a
motivating factor in the employer's decision to take the adverse action. (Ibid.) Once a
primamotivating factor in the employer's decision to take the adverse action. (Ibid.) Once a prima
facie case
is
established, the employer bears the burden
of
demonstrating that it would havefacie case is established, the employer bears the burden of demonstrating that it would have
taken the same action in the absence
of
the employee's protected activity. (Ibid.) Thus, undertaken the same action in the absence of the employee's protected activity. (Ibid.) Thus, under
the Wright Line discrimination standard, the general counsel must prove that the employer	the Wright Line discrimination standard, the general counsel must prove that the employer
acted with unlawful intent or motive. (NLRB
v.
Transportation Management Corp. (1983)acted with unlawful intent or motive. (NLRB v. Transportation Management Corp. (1983)
462 U.S. 393, 401.)	462 U.S. 393, 401.)
Not all section 8(a)(3) cases, however, require the general counsel to establish
the	Not all section 8(a)(3) cases, however, require the general counsel to establish the
employer's unlawful motive. In NLRB
v.
Great Dane Trailers (1967) 388 U.S. 26
(Greatemployer's unlawful motive. In NLRB v. Great Dane Trailers (1967) 388 U.S. 26 (Great
Dane), the U.S. Supreme Court set out a two-part standard for determining discrimination in	Dane), the U.S. Supreme Court set out a two-part standard for determining discrimination in
violation
of
section 8(a)(3):	violation of section 8(a)(3):
First, if it can reasonably be concluded that the employer's	First,
if
it can reasonably be concluded that the employer's
discriminatory conduct was 'inherently destructive'
of
important	discriminatory conduct was "inherently destructive' of important
employee rights, no proof
of
an anti union motivation is needed	employee rights, no proof of an antiunion motivation is needed
and the Board can find an unfair labor practice even
if
the	and the Board can find an unfair labor practice even if the
employer introduces evidence that the conduct was motivated by	employer introduces evidence that the conduct was motivated by
business considerations. Second, if the adverse effect of the	business considerations. Second,
if
the adverse effect
of
the
discriminatory conduct on employee rights is 'comparatively	discriminatory conduct on employee rights is ' comparatively
slight,' an antiunion motivation must be proved to sustain the	slight,' an antiunion motivation must be proved to sustain the
charge
if
the employer has come forward with evidence of	charge if the employer has come forward with evidence of
legitimate and substantial business justifications for the conduct.	legitimate and substantial business justifications for the conduct.
Thus, in either situation, once it has been proved that the	Thus, in either situation, once it has been proved that the
employer engaged in discriminatory conduct which could have	employer engaged in discriminatory conduct which could have
adversely affected employee rights to some extent, the burden is	adversely affected employee rights to some extent, the burden is
upon the employer to establish that he was motivated by	upon the employer to establish that he was motivated by
legitimate objectives since proof of motivation is most accessible	legitimate objectives since proof of motivation is most accessible
to him.	to him.
(Id. at p. 34; emphasis in original.)	(Id. at p. 34; emphasis in original.)
6	6

The Court did not require the general counsel to establish the employer's unlawful	The Court did not require the general counsel to establish the employer's unlawful
motive in "inherently destructive" conduct cases, finding that such conduct in itself	motive in "inherently destructive" conduct cases, finding that such conduct in itself
demonstrates the employer's unlawful motive. (Great Dane.) In a subsequent decision, the	demonstrates the employer's unlawful motive. (Great Dane.) In a subsequent decision, the
Court emphasized that, even in "inherently destructive" conduct cases, the NLRB must weigh	Court emphasized that, even in "inherently destructive" conduct cases, the NLRB must weigh
the effect of the employer's conduct on employee rights against the employer's business	the effect of the employer's conduct on employee rights against the employer's business
justifications to determine whether an unfair labor practice has been committed. (Metropolitan	justifications to determine whether an unfair labor practice has been committed. (Metropolitan
Edison	Edison Co. v. NLRB (1983) 460 U.S. 693, 703.)	Co. v. NLRB (1983) 460 U.S. 693, 703.)
7
The Great Dane discrimination standard applies when the employer has treated groups	The Great Dane discrimination standard applies when the employer has treated groups
of employees differently based on their participation in protected activity. 	(National	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	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	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].)	[employer refused to rehire laid off employees who had previously served as union stewards].)
However, because the Great Dane standard is nearly identical to the NLRB's interference	However, because the Great Dane standard is nearly identical to the NLRB's interference
standard, it is difficult to discern what circumstances trigger the application of one standard or	standard, it is difficult to discern what circumstances trigger the application of one standard or
the other. Often the NLRB applies the Great Dane standard to both 8(a)(3) and 8(a)(1)	the other. Often the NLRB applies the Great Dane standard to both 8(a)(3) and 8(a)(l)
allegations based on the same facts. 	(E.g., Peerless Pump Co. (2005) 345 NLRB 371; HB.allegations based on the same facts. (E.g., Peerless Pump Co. (2005) 345 NLRB 371; H. B.
Zachry Co. (1995) 319 NLRB 967.) On the other hand, the NLRB has used the Great Dane	Zachry Co. (1995) 319 NLRB 967.) On the other hand, the NLRB has used the Great Dane
standard to find 8(a)(l) violations in cases where the conduct at issue was not alleged to also	standard to find 8(a)(1) violations in cases where the conduct at issue was not alleged to also
violate section 8(a)(3). (E.g., Mainline Contracting Corp. (2001) 334 NLRB 922; Matador	violate section 8(a)(3). (E.g., Mainline Contracting Corp. (2001) 334 NLRB 922; Matador
Lines,	Lines, Inc. (1997) 323 NLRB 189.) In both types of cases, the same result would have	Inc. (1997) 323 NLRB 189.) In both types of cases, the same result would have
occurred had the NLRB simply applied its interference standard. Thus, the Great Dane	occurred had the NLRB simply applied its interference standard. Thus, the Great Dane
discrimination standard and the 	standard appear to be interchangeable 	practice.	discrimination standard and the interference standard appear to be interchangeable in practice.
7

2.	2. 	Interference and Discrimination Under the MMBA	Interference and Discrimination Under the MMBA
MMBA section 3502 provides that "public employees shall have the right to form, join,	MMBA section 3502 provides that "public employees shall have the right to form, join,
and participate in the activities
of
employee organizations
of
their own choosing for theand participate in the activities of employee organizations of their own choosing for the
purpose ofrepresentation on all matters
of
employer-employee relations." Section 3506 makespurpose of representation on all matters of employer-employee relations." Section 3506 makes
it unlawful for public agencies and employee organizations to "interfere with, intimidate,	it unlawful for public agencies and employee organizations to "interfere with, intimidate,
restrain, coerce or discriminate against public employees because
of
their exercise
of
theirrestrain, coerce or discriminate against public employees because of their exercise of their
rights under Section 3502."	rights under Section 3502."
Only a handful of court decisions have addressed discrimination and interference under	Only a handful
of
court decisions have addressed discrimination and interference under
Officers Assn.
v.
City
of	MMBA section 3506. In the earliest of these, San Leandro Police Officers Assn. v. City of	MMBA section 3506. In the earliest
of
these, San Leandro Police
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro), the city created a deferredSan Leandro (1976) 55 Cal.App.3d 553 (San Leandro), the city created a deferred
compensation plan that would give a benefit equal to three percent
of
base salary to all	compensation plan that would give a benefit equal to three percent of base salary to all
management employees except those who were members
of
the police and firefighters unions.
management employees except those who were members of the police and firefighters unions.
treatment constituted discrimination
and	(Id. at p. 556.) The court held this differential treatment constituted discrimination and	
(Id. at p. 556.) The court held this differential
interference in violation
of
Section 3506. (Id. at p. 558.) The court reached this conclusion	interference in violation of Section 3506. (Id. at p. 558.) The court reached this conclusion
with minimal analysis and no citations to authority other than the statute. (Id. at pp. 557-558.)with minimal analysis and no citations to authority other than the statute. (Id. at pp. 557-558.)
In Campbell, the association and the city agreed during bargaining that all negotiatedIn Campbell, the association and the city agreed during bargaining that all negotiated
increases in salary and medical insurance premium contributions would be paid retroactive to	increases in salary and medical insurance premium contributions would be paid retroactive to
October 1, 1978, the same retroactive date agreed upon by all other city employee unions.	October
1,
1978, the same retroactive date agreed upon by all other city employee unions.
(Id. at p. 419.) The association and the city reached impasse over two other issues. (Ibid.) 	In	(Id. at p. 419.) The association and the city reached impasse over two other issues. (Ibid.) In
the final step
of
the mandated impasse procedures, the city council ruled in favor
of the city onthe final step of the mandated impasse procedures, the city council ruled in favor of the city on
the two disputed issues; it also made the increases retroactive to February 1, 1979 instead of	the two disputed issues; it also made the increases retroactive to February 1, 1979 instead of
October 1, 1978. (Id. at p. 420.) As a result, employees represented by the	October 1, 1978. (Id. at p. 420.) As a result, employees represented by the association
received three fewer months of the salary and premium contribution increases than other	received three fewer months of the salary and premium contribution increases than other
represented city employees.	represented city employees.
8	8

Looking to federal precedent, the court adopted and applied the Great Dane standard.Looking to federal precedent, the court adopted and applied the Great Dane standard.
(Id. at pp. 423-424.) Like the U.S. Supreme Court in Great Dane, the court
of
appeal	(Id. at pp. 423-424.) Like the U.S. Supreme Court in Great Dane, the court of appeal
concluded that it need not determine the level
of
harm to employee rights because the cityconcluded that it need not determine the level of harm to employee rights because the city
offered no justification for its conduct other than to reward those unions that did not utilize the	offered no justification for its conduct other than to reward those unions that did not utilize the
impasse procedures. (Id. at
p.
424.) The court thus held, citing San Leandro, that the cityimpasse procedures. (Id. at p. 424.) The court thus held, citing San Leandro, that the city
discriminated against employees represented by the association in violation
of
Section 3506.discriminated against employees represented by the association in violation of Section 3506.
(Ibid.) 	In
so
holding, the court did not make a finding that the city's actions were unlawfully	(Ibid.) In so holding, the court did not make a finding that the city's actions were unlawfully
motivated.	motivated.
Los
Angeles County Employees Assn.
v.
County
of
Los Angeles (1985) 168 Cal.App.3d	Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d
683 (Los Angeles County), involved similar facts. 	The county reached a tentative agreement	683 (Los Angeles County), involved similar facts. The county reached a tentative agreement
on health insurance contributions with a coalition
of
unions representing its employees. 	(Id. at	on health insurance contributions with a coalition of unions representing its employees. (Id. at
p.
685.) The county board
of
supervisors then passed an ordinance approving the increase only	p. 685.) The county board of supervisors then passed an ordinance approving the increase only
for those unions that had reached agreement with the county in wage negotiations. (Ibid.) 	The	for those unions that had reached agreement with the county in wage negotiations. (Ibid.) The
court, relying on Campbell and San Leandro, held that the differential treatment constitutedcourt, relying on Campbell and San Leandro, held that the differential treatment constituted
discrimination prohibited by Section 3506 because the purpose
of
the ordinance was
to
rewarddiscrimination prohibited by Section 3506 because the purpose of the ordinance was to reward
those unions that had reached agreement with the county on wages. (Id. at pp. 688-689.) 	As inthose unions that had reached agreement with the county on wages. (Id. at pp. 688-689.) As in
Campbell, the court did not find that the county's actions were unlawfully motivated.	Campbell, the court did not find that the county's actions were unlawfully motivated.
Public Employees Association
of
Tulare County, Inc.
v.
Board
of
Supervisors
of
TularePublic Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797 (Tulare County), is the only published case to address	County (1985) 167 Cal.App.3d 797 (Tulare County), is the only published case to address
interference under Section 3506. In that case, the employer proposed to pay the
fuU
amount ofinterference under Section 3506. In that case, the employer proposed to pay the full amount of
a lump sum salary payment if the parties reached agreement on a successor MOU by a certain	a lump sum salary payment if the parties reached agreement on a successor MOU by a certain
date. 	(Id. at p. 802.) 	the 	of 	applicable impasse procedures,
	ofdate. (Id. at p. 802.) At the conclusion of the applicable impasse procedures, the board of
supervisors adopted the county's last offer, but reduced the amount of the lump sum paymentsupervisors adopted the county's last offer, but reduced the amount of the lump sum payment
9	9

to reflect the two pay periods that had passed since the proposed agreement date. (Id. atto reflect the two pay periods that had passed since the proposed agreement date. (Id. at
p. 803.) Applying a standard identical to the NLRB's 8(a)(l) interference test,6 the court heldp. 803.) Applying a standard identical to the NLRB's 8(a)(1) interference test, the court held
that the county's reduction of the lump sum payment did not interfere with the union's right tothat the county's reduction of the lump sum payment did not interfere with the union's right to
invoke and participate in the impasse procedures. (Id. at pp. 806-807.)	invoke and participate in the impasse procedures. (Id. at pp. 806-807.)
It is clear from the above cases that the courts have applied the nearly identical 8(a)(3)	It is clear from the above cases that the courts have applied the nearly identical 8(a)(3)
Great Dane discrimination standard and 8(a)(l) interference standard under the MMBA.	Great Dane discrimination standard and 8(a)(1) interference standard under the MMBA.
Indeed, even though the courts in San Leandro, Campbell, and Los Angeles County labeled the	Indeed, even though the courts in San Leandro, Campbell, and Los Angeles County labeled the
employer's unlawful conduct "discrimination," each analyzed the conduct under a test identical	employer's unlawful conduct "discrimination," each analyzed the conduct under a test identical
to the interference standard, i.e., whether the employer's conduct harmed or impeded employee	to the interference standard, i.e., whether the employer's conduct harmed or impeded employee
rights and was not justified by reasons that outweighed the harm. Thus, the interference and	rights and was not justified by reasons that outweighed the harm. Thus, the interference and
discrimination standards under the MMBA mirror those under the NLRA.	discrimination standards under the MMBA mirror those under the NLRA.7
33. 	PERB's Interference and Discrimination Standards	PERB's Interference and Discrimination Standards
In its early decisions, PERB also looked to NLRB precedent for guidance in	In its early decisions, PERB also looked to NLRB precedent for guidance in
formulating a standard for interference and discrimination under section 3543.S(a) of the	formulating a standard for interference and discrimination under section 3543.5(a) of the
The court formulated the following standard:	The court formulated the following standard:
Ali [a charging party] must prove to establish an interference	All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in	violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct	protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the	which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) [the] employer's conduct was	exercise of those activities, and (3) [the] employer's conduct was
not justified by legitimate business reasons.	not justified by legitimate business reasons.
(Tulare County, supra, at p. 807.)	(Tulare County, supra, at p. 807.)
7 In Santa Clara County Counsel Attorneys Association v. Woodside (1994) 7 Cal.4th	In Santa Clara County Counsel Attorneys Association v. Woodside (1994) 7 Cal.4th
525 (Woodside), the California Supreme Court suggested that the Wright Line 8(a)(3)	525 (Woodside), the California Supreme Court suggested that the Wright Line 8(a)(3)
discrimination standard would apply to an alleged violation of Section 3506 in a case where andiscrimination standard would apply to an alleged violation of Section 3506 in a case where an
employee was discharged or disciplined for engaging in activity protected by the MMBA.employee was discharged or disciplined for engaging in activity protected by the MMBA.
(Woodside, supra, at pp. 556-557.)	(Woodside, supra, at pp. 556-557.)
10

Educational Employment Relations Act (EERA).8 (San Dieguito Union High School District
Educational Employment Relations Act (EERA). (San Diegueto Union High School District
(1977) EERB9 Decision No. 22; Carlsbad.) In Carlsbad, the Board observed that, unlike the(1977) EERB' Decision No. 22; Carlsbad.) In Carlsbad, the Board observed that, unlike the
NLRA,
EERA's
prohibitions on interference and discrimination are contained in the same	NLRA, EERA's prohibitions on interference and discrimination are contained in the same
subsection
of
the statute. Accordingly, the Board laid out a single standard to establish a	subsection of the statute. Accordingly, the Board laid out a single standard to establish a
violation of EERA section 3543.5(a):	violation
of
EERA section 3543.5(a):
11
establishes that 	employer's	2.	
2. Where the charging party establishes that the employer's	Where the charging party 	the
conduct tends to or does result in some harm to employee rights	conduct tends to or does result in some harm to employee rights
granted under the EERA, a prima facie case shall be deemed to	granted under the EERA, a prima facie case shall be deemed to
exist;	exist;
3.	
3. Where the harm to the employees' rights is slight, and the	Where the harm to the employees' rights is slight, and the
employer offers justification based on operational necessity, the	employer offers justification based on operational necessity, the
the	competing interest of the employer and the rights of the	competing interest
of
the employer and 	rights
of
the
employees will be balanced and the charge resolved accordingly;employees will be balanced and the charge resolved accordingly;
4.	4. Where the harm is inherently destructive of employee rights,	Where the harm is inherently destructive
of
employee rights,
the employer's conduct will be excused only on proof that it was	the employer's conduct will be excused only on proof that it was
occasioned by circumstances beyond the employer's control and	occasioned by circumstances beyond the employer's control and
that no alternative course of action was available;	that no alternative course
of
action was available;
5.	5. 	Irrespective
of
the foregoing, a charge will be sustained where	Irrespective of the foregoing, a charge will be sustained where
it is shown that the employer would not have engaged in the	it is shown that the employer would not have engaged in the
complained-of conduct but for an unlawful motivation, purpose	complained-of conduct but for an unlawful motivation, purpose
or intent.	or intent.
This standard incorporates the "inherently destructive"/"comparatively slight" framework from	This standard incorporates the "inherently destructive"/"comparatively slight" framework from
Great Dane, along with elements
of
the NLRA section 8(a)(l) interference standard.	Great Dane, along with elements of the NLRA section 8(a)(1) interference standard.
8
EERA is codified at Section 3540 et seq. EERA section 3543.5(a) states, in relevant	EERA is codified at Section 3540 et seq. EERA section 3543.5(a) states, in relevant
part, that:	part, that:
It is unlawful for a public school employer to . . .	It is unlawful for a public school employer to
...
(a) Impose or threaten to impose reprisals on employees, to	(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or	discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because	otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.	of their exercise of rights guaranteed by this chapter.
9 Prior to January 1, 1978, PERB was known as the Educational Employment Relations9 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).	Board (EERB).
11

In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the
BoardIn Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board
separated the discrimination and interference standards by adopting the NLRB' s Wright
Lineseparated the discrimination and interference standards by adopting the NLRB's Wright Line
standard for cases "where it is alleged that the school employer has taken reprisals againststandard for cases "where it is alleged that the school employer has taken reprisals against
employees for participation in protected activity." In such cases, the charging party canemployees for participation in protected activity." In such cases, the charging party can
establish a prima facie case by showing: (1) the employee exercised protected rights; (2) the
establish a prima facie case by showing: (1) the employee exercised protected rights; (2) the
employer had knowledge
of
the exercise
of
those rights; (3) the employer took adverse actionemployer 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
thoseagainst the employee; and (4) the employer took the action because of the exercise of those
rights. 	(Ibid.) 	Once a prima facie case
is
established, the employer bears the burden
of
provingrights. (Ibid.) Once a prima facie case is established, the employer bears the burden of proving
that it would have taken the adverse action even if the employee had not engaged in protected	that it would have taken the adverse action even
if
the employee had not engaged in protected
activity. (Ibid.)	activity. (Ibid.)
In Novato, the Board also affirmed that the Carlsbad standard would still apply
in
cases	In Novato, the Board also affirmed that the Carlsbad standard would still apply in cases
alleging interference with employee rights. Though it has formulated the test slightlyalleging interference with employee rights. Though it has formulated the test slightly
differently over the years, the Board continues to apply the Carlsbad standard in interference	differently over the years, the Board continues to apply the Carlsbad standard in interference
cases, including those arising under the Dills Act. 	(E.g., State
of
California (Employmentcases, including those arising under the Dills Act. (E.g., State of California (Employment
Development Department) (1999) PERB Decision No. 1365-S; State
of
CaliforniaDevelopment Department) (1999) PERB Decision No. 1365-S; State of California
(Department
of
Corrections) (1995) PERB Decision No. 1100-S; State
of
California
Department of Corrections) (1995) PERB Decision No. 1100-S; State of California
(Departments
of
Personnel Administration, Developmental Services, and Mental Health)Departments of Personnel Administration, Developmental Services, and Mental Health)
(1986) PERB Decision No. 601-S.)	(1986) PERB Decision No. 601-S.)
12
Although Carlsbad and Campbell both adopted the Great Dane framework, the	Although Carlsbad and Campbell both adopted the Great Dane framework,
the
Campbell court's use
of
the term "discrimination" rather than "interference" has led to someCampbell court's use of the term "discrimination" rather than "interference" has led to some
confusion over the years. In some
of
its early decisions under the MMBA, PERB stated thatconfusion over the years. In some of its early decisions under the MMBA, PERB stated that
harm to employee rights 	the Campbell standard could be used to establish adverse	harm to employee rights under the Campbell standard could be used to establish adverse action
in reprisal cases under Novato. 	(County
of
Santa Cruz (2006) PERB Decision No. 1849-M;in reprisal cases under Novato. (County of Santa Cruz (2006) PERB Decision No. 1849-M;
12

City & County
of
San Francisco (2004) PERB Decision No. 1664-M.) In City
of
San
DiegoCity & County of San Francisco (2004) PERB Decision No. 1664-M.) In City of San Diego
(2005) PERB Decision No. 1738-M (San Diego), the Board addressed whether Campbell or	(2005) PERB Decision No. 1738-M (San Diego), the Board addressed whether Campbell or
Palo Verde Unified School District (1988) PERB Decision No. 689 (Palo Verde)
10
was
thePalo Verde Unified School District (1988) PERB Decision No. 689 (Palo Verde) was the
appropriate test for establishing adverse action under the Novato standard. In San Diego, theappropriate test for establishing adverse action under the Novato standard. In San Diego, the
charging party was denied access to dental and vision benefits under a negotiated flexible	charging party was denied access to dental and vision benefits under a negotiated flexible
benefits plan because she was neither a union member nor an agency fee payer. The
Board	benefits plan because she was neither a union member nor an agency fee payer. The Board
held that "there is an adverse action when an employee is denied a benefit based on whether or	held that "there is an adverse action when an employee is denied a benefit based on whether or
not he or she is a union member just as in Campbell." (Ibid.)	not he or she is a union member just as in Campbell." (Ibid.)
13
We disagree with the Board's application of Campbell in San Diego. Instead of using	We disagree with the Board's application
of
Campbell in San Diego. Instead
of
using
Campbell to establish adverse action under the Novato standard, the Board should have	Campbell to establish adverse action under the Novato standard, the Board should have
analyzed the facts under the standard set out in Campbell itself, i.e., whether the denial
ofanalyzed the facts under the standard set out in Campbell itself, i.e., whether the denial of
benefits could have harmed employee rights to some extent and whether the employer's and	benefits could have harmed employee rights to some extent and whether the employer's and
union's justification for the denial outweighed that harm. Accordingly, we overrule that	union's justification for the denial outweighed that harm. Accordingly, we overrule
that
portion
of
San Diego which applied the Novato standard to find discrimination.
11
In
so
doing,portion of San Diego which applied the Novato standard to find discrimination." In so doing,
we
also hold that Palo Verde, not Campbell, sets forth the proper test for determining whetherwe also hold that Palo Verde, not Campbell, sets forth the proper test for determining whether
an
employer's action is adverse under the Novato standard.	an employer's action is adverse under the Novato standard.
"P 	on	alo Verde requires an objective showing of an adverse effect on the employee's	Palo Verde requires an objective showing of an adverse effect 	the employee's
employment. In a later decision, the Board further explained that:	employment. In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee	The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a	found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider	reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's	the action to have an adverse impact on the employee 's
employment.	employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added;	(Newark Unified School District (1991) 	Decision No. 864; emphasis added;
fn. omitted.)	
fn.
omitted.)
11
We note, however, that the Board also found the union and the city interfered with	We note, however, that the Board also found the union and the city interfered with
the charging party's rights under the standard set out in Tulare County, which is nearly	the charging party's rights under the standard set out in Tulare County, which is nearly
identical to the NLRB's 8(a)(l) interference standard and consistent with PERB's Carlsbad	identical to the NLRB's 8(a)(1) interference standard and consistent with PERB's Carlsbad
interference standard.	interference standard.
13

In light of the above discussion, we clarify that under applicable case law there are	In light of the above discussion, we clarify that under applicable case law there are
three standards for establishing a violation of the provisions of PERB-administered statutes,	three standards for establishing a violation of the provisions of PERB-administered statutes,
such as Dills Act section 3519(a), that make it unlawful for an employer to "[i]mpose or	such as Dills Act section 3519(a), that make it unlawful for an employer to "[ijmpose or
threaten to impose reprisals on employees, to discriminate or threaten to discriminate against	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	employees, or otherwise to interfere with, restrain, or coerce employees because of their
exercise of rights guaranteed by" the statute:	exercise of rights guaranteed by" the statute:
1 As noted, the Tulare County standard, which applies in interference cases under the	12 As noted, the Tulare County standard, which applies in interference cases under the
MMBA, is consistent with the Carlsbad interference standard.	MMBA, is consistent with the Carlsbad interference standard.
14
1 .	1. 	The Novato discrimination/retaliation standard applies in cases where an	The Novato discrimination/retaliation standard applies in cases where an
employer is alleged to have taken an adverse action against an individual employee because of	employer is alleged to have taken an adverse action against an individual employee because of
the employee's participation in protected activity. Once the charging party establishes that the	the employee's participation in protected activity. Once the charging party establishes that the
employer's action was motivated at least in part by the employee's protected activity, the	employer's action was motivated at least in part by the employee's protected activity, the
burden shifts to the employer to prove that it would have taken the action even if the employee	burden shifts to the employer to prove that it would have taken the action even if the employee
had not engaged in protected activity.	had not engaged in protected activity.
2.	2. 	The Carlsbad interference standard applies in cases where an employer is	The Carlsbad interference standard applies in cases where an employer is
alleged to have interfered with the rights of employees, or restrained or coerced employees in	alleged to have interfered with the rights of employees, or restrained or coerced employees in
their exercise of their rights. To establish a prima facie case, the charging party must	their exercise of their rights. To establish a prima facie case, the charging party must
demonstrate that the employer's conduct tends to or does result in harm to employee rights.	demonstrate that the employer's conduct tends to or does result in harm to employee rights.
Once a prima facie case is established, the burden shifts to the employer to justify its conduct.	Once a prima facie case is established, the burden shifts to the employer to justify its conduct.
If the harm to employees' rights is slight, and the employer offers justification based on	If the harm to 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	operational necessity, the competing interest of the employer and the rights of the employees
will be balanced to determine if the employer's conduct constitutes an unfair practice. 	If the	will be balanced to determine if the employer's conduct constitutes an unfair practice. If the
harm is inherently destructive of employee rights, the employer's conduct will be excused only	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 	and 	noon proof that it was occasioned by circumstances beyond the employer's control and that no
alternative course of action was available. 12
alternative course of action was available.
14

3.	
3. 	The Campbell discrimination standard applies in cases where an employer is	The Campbell discrimination standard applies in cases where an employer is
alleged to have discriminated between two groups
of
employees because one
of
the groups	alleged to have discriminated between two groups of employees because one of the groups
participated in protected activity. To establish a prima facie case under this standard,
theparticipated in protected activity. To establish a prima facie case under this standard, the
charging party must show that the employer engaged in conduct which could have
harmedcharging party must show that the employer engaged in conduct which could have harmed
employee rights to some extent. Once a prima facie case is established, the burden shifts to the	employee rights to some extent. Once a prima facie case is established, the burden shifts to the
employer to justify its conduct.	
If
the harm to employees' rights is slight, and the employeremployer to justify its conduct. If the harm to employees' rights is slight, and the employer
offers justification based on operational necessity, the competing interest
of
the employer andoffers justification based on operational necessity, the competing interest of the employer and
the rights
of
the employees will be balanced to determine
if
the employer's conduct constitutes	the rights of the employees will be balanced to determine if the employer's conduct constitutes
an unfair practice.
If
the harm is inherently destructive
of
employee rights, the
employer's	an unfair practice. If 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
theconduct 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.	employer's control and that no alternative course of action was available.
We acknowledge that the Carlsbad and Campbell standards are nearly identical
andWe acknowledge that the Carlsbad and Campbell standards are nearly identical and
will in most cases lead to the same result. Nonetheless, at this time Campbell is still
valid
and	will in most cases lead to the same result. Nonetheless, at this time Campbell is still valid and
PERB is bound to follow it in cases arising under the MMBA. (MMBA, § 3509, subd. (b).)	PERB is bound to follow it in cases arising under the MMBA. (MMBA, $ 3509, subd. (b).)
We caution, however, that the Campbell discrimination standard, which mirrors the
CarlsbadWe caution, however, that the Campbell discrimination standard, which mirrors the Carlsbad
interference standard, is not to be confused with the Novato discrimination standard,
which
is	interference standard, is not to be confused with the Novato discrimination standard, which is
actually a test for retaliation.	actually a test for retaliation.
4.	4. 	Application of PERB's Standards to CCPOA's Allegations	Application
of
PERB's Standards to CCPOA's Allegations
The charge did not allege that the State took adverse action against an individual	The charge did not allege that the State took adverse action against an individual
employee because
of
the employee's participation in protected activity. Therefore, the Novatoemployee because of the employee's participation in protected activity. Therefore, the Novato
discrimination/retaliation standard does not apply in this case. Nonetheless, the charge allegeddiscrimination/retaliation standard does not apply in this case. Nonetheless, the charge alleged
conduct that falls under the other two standards listed above.	conduct that falls under the other two standards listed above.
15	15

a.
a. 	Carlsbad Interference	Carlsbad Interference
CCPOA contends that the State interfered
\Vith
union members' rights because
non-	CCPOA contends that the State interfered with union members' rights because non-
union members were able to obtain enhanced dental benefits at a slightly lower cost than union	union members were able to obtain enhanced dental benefits at a slightly lower cost than union
members. To establish a prima facie case
of
unlawful interference under the Dills Act, a	members. 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	charging party must establish that the employer's conduct tends to or does result in some harm
to employee rights granted under the statute. (Carlsbad; State
of
California (Department
ofto employee rights granted under the statute. (Carlsbad; State of California (Department of
Developmental Services) (1983) PERB Decision No. 344-S.) In Clovis Unified School District	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	(1984) PERB Decision No. 389, the Board held that a finding of coercion does not require
evidence that the employee actually felt threatened or intimidated or was in fact discouraged	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,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
harmthe 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	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.	conduct should be excused because
of
circumstances beyond the employer's control.
(Carlsbad.)	(Carlsbad.)
the	On October 31, 2007, the CCPOA Benefit Trust Fund notified the State that it would	On October 31, 2007, the CCPOA Benefit Trust Fund notified 	State that it
would
stop providing dental benefits to non-union members effective November
1,
2007.
	The
Benefitstop 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	Trust Fund advised the State to inform non-union members to enroll in another state dental
state-	benefit plan. DPA quickly notified non-union members of their option to enroll in the state-	benefit plan. DP A quickly notified non-union members
of
their option to enroll in the
sponsored dental plans. The option to enroll in state-sponsored dental plans was not
offered
tosponsored dental plans. The option to enroll in state-sponsored dental plans was not offered to
union members.	union members.
According to CCPOA, the State has provided enhanced dental benefits to non-unionAccording to CCPOA, 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	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,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	because there are no facts to show that the state-sponsored dental plan provides greater
16	16

benefits. The mere fact that the State pays more for the state-sponsored plan does notbenefits. 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.	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	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	they chose to become members of the union. CCPOA has not alleged that the difference in
dental benefit costs for union and non-union members resulted in actual harm to the rights of	dental 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
theirunion members. There is no evidence that any union member employees opted to resign their
union membership in order to obtain dental benefits at a reduced cost, or that any
non-union	union 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
anyemployees 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	union member requested to switch to the state-sponsored plan and was denied. Thus, there is
no evidence
of
actual harm to employee rights.	no evidence of actual harm to employee rights.
However, providing benefits at a lower cost to non-union members, while
excludingHowever, 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	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	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
chargemembers may influence an employee's decision to join the union. Accordingly, the charge
states a prima facie case
of
interference under the Carlsbad standard.	states a prima facie case of interference under the Carlsbad standard.
b .	b. 	Campbell Discrimination	Campbell Discrimination
CCPOA also alleges the State discriminated against union members by
providing
lower	CCPOA also alleges the State discriminated against union members by providing lower
cost dental benefits to non-union members. To establish a prima facie case
of
discrimination	cost dental benefits to non-union members. To establish a prima facie case of discrimination
under Campbell, the charging party must show that the employer engaged in conduct
whichunder Campbell, the charging party must show that the employer engaged in conduct which
could have harmed employee rights to some extent. Once a prima facie case is established, thecould have harmed employee rights to some extent. Once a prima facie case is established, the
burden shifts to the employer to justify its conduct. If the harm to employees' rights
is
slight,
burden shifts to the employer to justify its conduct. If the harm to employees' rights is slight,
and the employer offers justification based on operational necessity, 	competingand the employer offers justification based on operational necessity, the competing interest of
the employer and the rights of the employees will be balanced to determine if the employer's
the employer and the rights of the employees will be balanced to determine if the employer's
17	17

conduct constitutes an unfair practice. If the harm is inherently destructive
of
employee rights,
conduct constitutes an unfair practice. If the harm is inherently destructive of employee rights,
the employer's conduct will be excused only on proof that it was occasioned by circumstances	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.	beyond the employer's control and that no alternative course of action was available.
For the reasons discussed above, under the Campbell standard we find that the
State'sFor the reasons discussed above, under the Campbell standard we find that the State's
provision
of
dental benefits at a lower cost to non-union members while excluding unionprovision of dental benefits at a lower cost to non-union members while excluding union
members from the same benefit plan could harm employee rights because it may influence	
members from the same benefit plan could harm employee rights because it may influence
employees to decline to join or to resign from CCPOA to obtain the lower cost benefit.employees to decline to join or to resign from CCPOA to obtain the lower cost benefit.
Accordingly, the charge states a prima facie case
of
discrimination under the CampbellAccordingly, the charge states a prima facie case of discrimination under the Campbell
standard.	standard.
At this stage
of
the charge review, the Board decides only whether the factual	At this stage of the charge review, the Board decides only whether the factual
allegations state a prima facie case. Having found a prima facie case
of
interference
under
the
allegations state a prima facie case. Having found a prima facie case of interference under the
Carlsbad standard and discrimination under the Campbell standard, our inquiry is thus
at anCarlsbad standard and discrimination under the Campbell standard, our inquiry is thus at an
end. The determination
of
whether DP A's actions were justified due to operational necessityend. The determination of whether DPA's actions were justified due to operational necessity
and/or circumstances beyond its control are matters to be resolved in further proceedings once	and/or circumstances beyond its control are matters to be resolved in further proceedings once
a complaint has issued.	a complaint has issued.
18
ORDER	ORDER
The Public Employment Relations Board (PERB or Board) hereby vacates State	The Public Employment Relations Board (PERB or Board) hereby vacates State
of
California (Department
of
Personnel Administration) (2010) PERB Decision No. 2106-S.of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S.
The Board hereby REVERSES the dismissal
of
the unfair practice charge in Case	The Board hereby REVERSES the dismissal of the unfair practice charge in Case
No. SA-CE-1636-S and REMANDS this case to the Office of the General Counsel for	No. SA-CE-1636-S and REMANDS this case to the Office of the General Counsel for
issuance of a complaint consistent with this Decision.	issuance of a complaint consistent with this Decision.
Chair Dowdin Calvillo joined in this Decision.	Chair Dowdin Calvillo joined in this Decision.
Member Mckeag's dissent begins on page 19.	Member McKeag's dissent begins on page 19.
18

McKEAG, Member, dissenting: I respectfully disagree with the majority's ruling that	McKEAG, Member, dissenting: I respectfully disagree with the majority's ruling that
the California Correctional Peace Officers' Association (CCPOA) established a prima facie	the California Correctional Peace Officers' Association (CCPOA) established a prima facie
violation
of
the Ralph
C.
Dills Act (Dills Act) when, after CCPOA stopped providing former	violation of the Ralph C. Dills Act (Dills Act) when, after CCPOA stopped providing former
CCPOA agency fee payers with dental insurance, the State
of
California (Department
ofCCPOA agency fee payers with dental insurance, the State of California (Department of
Personnel Administration) (State) provided enhanced dental benefits at a reduced cost to these	Personnel Administration) (State) provided enhanced dental benefits at a reduced cost to these
employees. I dissent for the reasons set forth below.	employees. I dissent for the reasons set forth below.
In order to find unlawful interference, the Public Employment Relations Board (PERB)	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	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 Dills Act. (State
of
Californiaresult in some harm to employee rights granted under the Dills Act. (State of California
(Department
of
Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad(Department of Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89 and Service Employees International	Unified School District (1979) PERB Decision No. 89 and Service Employees International
Union, Local 99 (Kimmett) (1979) PERB Decision No. l 06.)	Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
In the instant case, the CCPOA members continued to enjoy the exact same dental	In the instant case, the CCPOA members continued to enjoy the exact same dental
benefits after the implementation
of
the State's last best and final offer. When the CCPOA	benefits after the implementation of the State's last best and final offer. When the CCPOA
Benefit Trust Fund refused to provide dental benefits to the former CCPOA agency fee payers,	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 the existing dental benefits currently offered tothe State was faced with a choice to either offer the existing dental benefits currently offered to
other State employees or to provide no dental benefits at all. Clearly, the latter option
wasother State employees or to provide no dental benefits at all. Clearly, the latter option was
untenable and would have likely resulted in litigation. Therefore, the State had only
one	untenable and would have likely resulted in litigation. Therefore, the State had only one
legitimate option, and it exercised that option.	legitimate option, and it exercised that option.
Based on the foregoing, I find the State's conduct simply did not result in any
harm
to	Based on the foregoing, I find the State's conduct simply did not result in any harm to
employee rights. Accordingly, I believe this case should be dismissed for failure to establish aemployee rights. Accordingly, I believe this case should be dismissed for failure to establish a
prima facie violation of the Dills Act.prima facie violation of the Dills Act.
19	19