Fresno Irrigation District * * * VACATED by Fresno Irrigation District (2004) PERB Decision No. 1565a-M (PERB 1565M)

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VACATED by Fresno Irrigation District
(2004) PERB Decision No. 1565a-M

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FRESNO IRRIGATION DISTRICT EMPLOYEES
ASSOCIATION,

Charging Party, Case No. SA-CE-29-M

Vv. PERB Decision No. 1565-M

FRESNO IRRIGATION DISTRICT, December 16, 2003

Respondent.

Appearance: Sagaser, Franson & Jones by Howard A. Sagaser, Attorney, for Fresno Irrigation
District.

Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Fresno Irrigation District (District) to a proposed decision
of the administrative law judge (ALJ). The proposed decision found that the District violated
the Meyers-Milias-Brown Act (MMBA)' by refusing to allow the Fresno Irrigation District
Employees Association (FIDEA) use of the District’s maintenance meeting room for a FIDEA
membership meeting. The ALJ found that the District’s refusal constituted: (1) a denial of
FIDEA’s protected rights; (2) an unlawful unilateral change in the terms and conditions of
employment; and (3) unlawful discrimination for the exercise of protected rights. The District

excepts to all of these findings.

'The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

After reviewing the entire record in this case, including the proposed decision and the
District's exceptions2, the Board declines to adopt the decision of the ALJ. Instead, the Board
will issue its own decision below.
BACKGROUND
Jurisdiction
The parties stipulated that FIDEA is a recognized employee organization and that the
District is a public agency within the meaning of the MMBA.
Employer-Employee Relations Policy
Following the passage of Senate Bill 739 (Solis, Ch. 901, Stats. of2000), the District
began drafting a set of Employer-Employee Relations Policies (EER policies) to ensure
compliance with the MMBA. On or about June 5, 2001, the District wrote to FIDEA seeking a
response to its proposed EER policies.3 On June 11, 2001, FIDEA's attorney sent a letter to
the District memorializing twenty-one objections to the proposed EER policies. FIDEA based
many of its objections on the anticipated effect of SB 739 which vested PERB with jurisdiction
over various aspects of the MMBA. On June 25, 2001, FIDEA's attorney sent another letter to
the District asking for a response to the objections set forth in the June 11, 2001, letter. 	On
June 27, 2001, the District responded to FIDEA's objections in writing. The District disputed
many of FIDEA's objections, agreed with some, and requested more information on others.
2The District's request for oral argument is denied. The record and briefs in this matter
adequately present the issues and positions of the parties.
3The MMBA requires that a public agency consult in good faith with employee
organizations over the adoption of any rules and regulations implementing the MMBA.
(MMBA sec. 3507.)
2

That same day, the Board
of
Directors for the District provisionally adopted the EER policies
with instructions to District staff to continue meeting and conferring with FIDEA. The Board
of
Directors requested that any proposed amendments to the EER policies be presented
by
the
end
of
July 2001. After a series
of
letters and extensive bilateral discussions, most
ofFIDEA's
concerns were eventually resolved. On August 29, 2001, the Board
of
Directors formally
adopted the EER policies.
FIDEA Affiliation With Local 3
On August 21, 2001, FIDEA members voted to affiliate with the Operating Engineers
Local Union No. 3 (Local 3). On August 28, 2001, Kurt Benfield, a Business Agent for
Local 3, wrote to Gary Serrato (Serrato), Chief Administrative Officer for the District, to
inform Serrato
of
the affiliation. On September 13, 2001, Serrato responded with a letter
stating that, "to the extent that [Local
3]
is attempting to replace FIDEA as the employee's
[sic] official representative, that request is rejected." On September 20, 2001, both Local 3 and
FIDEA responded by explaining that Local 3 was not substituting itself as the exclusive
representative, but was merely operating as a service provider in much the same manner as the
District's attorney acts as a resource and spokesman for the District. These letters apparently
clarified the situation for the District which began dealing with Local 3 as the service provider
for FIDEA.
Request to Use Meeting Room
According to Mark Cardoza (Cardoza), President
of
FIDEA, for the last few years prior
to 2001, FIDEA had been able to hold membership meetings in the District's maintenance
3

meeting room4 every one or two months. The procedure for requesting the use of the
maintenance meeting room, for at least the last five years, was to submit a request to
management approximately one week prior to the anticipated meeting date. Before August 21,
2001, access to the room had been denied only once, when the room was previously scheduled.
During that instance FIDEA merely had to reschedule its meeting for the following week.
Shortly after affiliating with Local 3 - sometime after September 20, 2001, but before
September 26, 2001 - Cardoza requested to use the District's maintenance meeting room for a
FIDEA meeting. The District responded to the request through Regina Davis (Davis), the
District's human resources director. Davis had begun working for the District just a few weeks
earlier on August 13, 2001. On September 26, 2001, Davis denied Cardoza's request in
writing to use the maintenance meeting room. The denial states, in its entirety:
I informed Gary Serrato of your request to use the Maintenance
Meeting Room for your October 1, 2001 meeting. As I
understand, your association's use of the room was previously
granted because you had no other site in which to meet. Now that
you are affiliated with Operating Engineers Union Local 3, you
now have access to their local facility in which to hold your
meetings. Therefore, your request to use the Maintenance
Meeting Room is denied.
Please contact me with any questions.
(Resp. ex. 18.)
On October 16, two FIDEA representatives approached Serrato seeking an explanation
and/or a reconsideration of the denial. Serrato said he would think about it and get back to
them. 	On October 19, FIDEA received a second letter from Davis, which states in its entirety:
Jim Ellison and Robert Armas spoke with Gary Serrato on
Tuesday, October 16, 2001 regarding reconsideration of the use
4The maintenance meeting room houses employee lockers, both locked and unlocked,
time clocks and cards, and a display board with keys to all of the District vehicles, both on-
and off-road, i.e. bulldozers, skip loaders and other heavy equipment.
4

of
the Maintenance Meeting Room. Mr. Serrato and I have
discussed this request again and have agreed that the original
decision is still valid. The use
of
the meeting room is denied.
Please contact me with any questions.
(C.P. ex. B.)
FIDEA did not make any further contacts with Davis on this matter, but filed the instant charge
on December 12, 2001. On December 21, 2001, PERB issued a complaint against the District
alleging violations
of
MMBA sections 3503, 3505 and 35065, as well as PERB
Regulation 32603(a), (b) and
(c)6.
	On January 22, 2002, Davis wrote to Cardoza offering to
meet and confer over the allegations in the complaint. The letter states in its entirety:
5MMBA section 3503 states, in pertinent part:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies.
MMBA section 3505 states, in pertinent part:
The governing body
of
a public agency
...
shall meet and confer
in good faith regarding wages, hours, and other terms and
conditions
of
employment with representatives
of
such
recognized employee organizations
...
and shall consider fully
such presentations as are made by the employee organization on
behalf
of
its members prior to arriving at a determination
of
policy or course
of
action.
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.
6PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq. PERB Regulation 32603 states, in pertinent part:
It shall be an unfair practice for a public agency to do any of the
following:
5

On January 17, 2002, representatives
of
the Fresno Irrigation
District met with representatives
of
Operating Engineer's Local 3
regarding the outstanding dispute stemming from the District's
denial
of
your request to use the facilities
of
Fresno Irrigation
District for a union meeting on October
1,
2001. As set forth in
our letter dated September 26, 2001, it was and remains the
District's position and belief that you have alternative facilities
available for such meetings through Operating Engineer's Local
Union No. 3. You have not responded to the September 26,
2001, letter except for the filing
of
an unfair labor practice charge
on December 7, 2001. At no time have your representatives
informed us that you believe that the alternative meeting facilities
were inadequate, nor have you requested to meet and confer on
this issue.
By
this letter, I wish to confirm that the Fresno Irrigation District
is willing to meet with the FIDEA to discuss this issue and see
if
a resolution acceptable to both parties can be reached through the
meet and confer process. As set forth in our communications to
PERB and to your designated representative, the District does
have security concerns stemming from the September 11, 2001,
Twin Towers attack and therefore any request to use the District
facilities must take into mind the security concerns
of
the District.
If
you wish to schedule a meet and confer session over the issue
of
the use
of
the District's facilities, please feel free to call me so
we can set up a meeting.
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because
of
their exercise
of
rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
(b) Deny to employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3508(c)
or 3508.5 or by any local rule adopted pursuant to Government
Code section 3507.
(c) Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code
section 3505 or any local rule adopted pursuant to Government
Code section 3507.
6

FIDEA did not respond to this letter. Cardoza testified that prior to the January 22, 2002,
letter, the District had never mentioned security as one
of
the reasons for its refusal to allow
FIDEA the use
of
the maintenance meeting room.
At the hearing, Davis testified that she discussed FIDEA's request with Serrato. Davis
testified that she and Serrato denied FIDEA' s request primarily because
of
security concerns
following the terrorist attacks
of
September 11, 2001. Although Davis testified that security
was the District's primary concern, it is undisputed that Davis failed to mention security
concerns in her September 26, and October 19, 2001, letters. When asked
if
she thought it
would have been prudent to provide FIDEA with the reason for the District's denial, Davis
responded, "No, I do not always give the reasons."
Serrato testified that after the District first denied FIDEA's request, two FIDEA
representatives came to speak with him in person. The representatives asked Serrato to
reconsider the decision to deny FIDEA the use
of
the maintenance meeting room. 	Serrato did
not recall whether he informed the FIDEA representatives
of
the District's security concerns.
Serrato testified that he informed the FIDEA representatives only that he would reconsider the
decision. 	Serrato then testified that he discussed FIDEA's request with Davis. Serrato stated
that he and Davis had security concerns over FIDEA's use
of
the room. 	Serrato admitted that
he never asked Davis to inform FIDEA
of
the District's security concerns. Serrato also
admitted that he never discussed his security concerns with FIDEA.
Despite the fact that the District never conveyed its security concerns to FIDEA, the
District insists that it was legitimately concerned about security in the wake of the
September 11, 2001, terrorist attacks. The District notes that the meeting room is in the same
building that contains the District's computer room. The computer room controls the District's
7

telemetry system. Any individual with access to this system is capable
of
opening the head
gates for all
of
the District's 800 miles
of
canal systems. However, such access requires
knowledge
of
confidential computer access codes. The District also notes that when it holds
the after-hours public meetings
of
its Board
of
Directors, it hires outside security guards to
monitor the meeting attendees.
Further, the District contends that its denial
of
the use
of
the room had nothing to do
with FIDEA's affiliation with Local
3.
	Instead, the District maintains that its primary reason
for denying the use
of
the room was security. In any event, the District argues that it has
complete discretion to allow or deny FIDEA's use
of
the room under the recently enacted EER
policies. Specifically, the District cites to Rule
23
of
the EER policies which provides, in
pertinent part:
23. USE OF FRESNO IRRIGATION FACILITIES
FID facilities shall be available to Certified Employee
Organizations as follows:
(a) FID. Certified Employee Organizations may be granted the
use
of
FID facilities for meetings composed
of
FID employees
provided such meetings are held outside regularly scheduled
working hours for the group which is meeting and provided space
can be made available without interfering with FID operations.
Certified Employee Organizations wanting to use FID facilities
for meetings must secure the written permission
of
the FID
official who schedules the use
of
FID facilities.
(Resp. ex. 13.)
This particular rule was not the subject
of
one ofFIDEA's twenty-one objections conveyed to
the District. No mention
of
the rule appears in the correspondence between the District and
FIDEA. Cardoza testified that his understanding was that Rule 23 merely codified the existing
policy and practice regarding use of the maintenance meeting room. Cardoza's understanding
was that the use of the room would continue to be granted subject to scheduling.
8

Finally, the District contends that FIDEA failed to exhaust its administrative remedies
under the District's local rules. Rule
33
of
the EER policies states:
33. RULES AND REGULATIONS
Subject to the requirements
of
the Meyers-Milias-Brown Act, the
General Manager is authorized to establish rules and procedures
to carry out the intent
of
these Rules. He shall also have the
authority to administratively interpret these Rules.
Interpretations made by the General Manager are subject to
appeal to the Board
of
Directors and subject to review under
Government Code Section 3509,
to
the extent permitted by law.
(Resp. ex. 13.)
The District argues that pursuant to Rule 33, FIDEA was required to appeal the denial to the
District's Board
of
Directors. The District further contends that a negative decision
by
the
District's Board
of
Directors may be appealed to an impasse procedure pursuant to
EER
Rules 26 and 27. Since FIDEA has not filed such an appeal, this charge is defective argues the
District.
After the denial
of
the use
of
the meeting room, FIDEA held its meetings twice
on
the
grounds just outside the District's property line and once at Brook Ranch, a nearby restaurant.
Meetings are usually held after work at 4:35 p.m., but during the summer they are delayed until
after 7:00 p.m., when the employees finish their workdays. According to Cardoza, FIDEA
considered and rejected using Local 3 's facilities because it would have entailed a 20 to 30
minute drive. Cardoza testified that FIDEA's members live much closer to the District's
headquarters than Local 3's office in central Fresno. The District counters that Cardoza's
testimony is based on speculation and argues that the majority
of
its employees live in the
direction of Local 3 's office.
9

PROPOSED DECISION
The proposed decision first addresses the issue
of
whether the District violated the
MMBA by denying FIDEA the use
of
the maintenance meeting room. 	Analogizing to the
other public sector statutes administered by PERB, the ALJ held that an implicit right
of
access
to the employer's premises exists under the MMBA. (See State
of
California (California
Department
of
Corrections) (1980) PERB Decision No. 127-S (Corrections).) PERB has held
that restrictions on the right
of
access must be narrowly drawn. (The Regents
of
the University
of
California, University
of
California at Los Angeles Medical Center (1983) PERB Decision
No. 329-H.) The ALJ concluded that the District's denial
ofFIDEA's
request did not meet this
standard. 	Thus, the ALJ found that the District violated MMBA section 3503 and PERB
Regulation 32603(b
).
The ALJ further concluded that the District's denial was not a one-time event, but
intended to implement a change in policy. Since the change in policy was within the scope
of
representation, the District should have provided FIDEA notice
of
the change and an
opportunity
to
request negotiation. Since it did not, the ALJ found that the District also
violated MMBA section 3505 and PERB Regulation 32603(c).
Finally, the ALJ found that the District denied FIDEA's request because
ofFIDEA's
recent affiliation with Local
3.
	Since FIDEA's affiliation was protected activity, the District's
denial was unlawful discrimination. Accordingly, the ALJ also found that the District violated
MMBA section 3506 and PERB Regulation 32603(a).
EXCEPTIONS
The District vigorously challenges the ALJ's findings. 	Specifically, the District argues
that its denial of FIDEA's request was legitimately motivated by security concerns in the wake

of the terrorist attacks of September 11, 2001. Further, the District argues that the ALJ's
finding that a right of access exists under the MMBA is flawed. 	To the contrary, the District
contends that the MMBA allows right of access to be determined by local rule. Under the
District's local rule, the District maintains the complete discretion to grant or deny use of its
facilities. 	Thus, according to the District, it had an absolute right to deny FIDEA's request.
DISCUSSION
ISSUE I: Denial of Employee Organization Rights (Right of Access)
Right of Access Under Local Rules
The MMBA provides that a public agency may adopt reasonable rules and regulations
governing access to work locations by employee organization officers and representatives.
(MMBA sec. 3507(f).) Pursuant to this authority, the District adopted Rule 23 of its BER
policies. The District argues that the intent of Rule 23 was to reserve to the District the
complete discretion to grant or deny use of the District's facilities by FIDEA. In essence, the
District argues that under Rule 23, it may grant or deny requests for any reason or no reason at
all. The evidence does not support such a position.
Cardoza's undisputed testimony is that the intent of Rule 23 was to codify the District's
long-standing practice and policy regarding the use of its facilities by FIDEA. According to
Cardoza, the past practice was for FIDEA to provide the District at least one week's notice for
any request to use the District's meeting room. The District's practice was to grant such
requests if there was no scheduling conflict. It is undisputed that in the past five years,
FIDEA's requests have only been denied once. In that instance, there was a scheduling
conflict for the date requested by FIDEA. The situation was resolved by FIDEA simply
moving its meeting to the following week at the same location.
11

The plain language of Rule 23 confirms that it was intended to codify past practice.
Although the first part of Rule 23 provides that the District "may" grant requests by FIDEA for
the use of the District facilities, the remainder of Rule 23 imposes two conditions on the
District's exercise of its discretion. Those conditions are that: (1) the meeting take place
outside of normal work hours; and (2) the meeting not interfere with the District's operations.
The District argues that even where those two conditions are met, it has the complete
discretion to grant or deny FIDEA's request. The Board disagrees. The District's
interpretation of Rule 23 would render superfluous the language discussing the two conditions.
If the District had intended to reserve to itself such complete discretion, there would have been
no need to impose conditions regarding work hours and operational needs. The District could
have simply stated that use of the maintenance meeting room would be granted at its
discretion. Instead, the District drafted Rule 23 to imply that use of the room would be granted
if the two conditions were satisfied. The undisputed testimony of Cardoza confirms this
interpretation. Accordingly, based on the evidence presented in the record, the Board finds
that the District's intent in enacting Rule 23 of its EER policies was to codify its past practice
regarding the use of its facilities by FIDEA. The record further establishes that the District's
past practice was to allow FIDEA use of the District's meeting room provided that meeting
was held outside of normal work hours and there was no scheduling conflict.
Violation of Right of Access and District's Defenses
Having found that the District intended to codify its past practice in Rule 23, the Board
must now tum to the question of whether the District violated Rule 23 when it denied FIDEA's
request to use the room for an October 1, 2001, meeting. It is undisputed that the only reason
publicly proffered by the District for denying FIDEA's request was the purported availability
12

of alternative facilities. However, there is absolutely no evidence that the availability of
alternative facilities was ever considered a factor by the District in the past. The District
responds that it was not until FIDEA affiliated with Local 3 that alternative facilities became
available. While perhaps true, FIDEA's affiliation with Local 3 did not alter the meaning of
Rule 23. Rule 23 was intended to codify past practice and nothing in the District's past
practice allowed it to deny FIDEA access because of the availability of alternative facilities. If
the District believed that FIDEA's affiliation with Local 3 warranted a change in its policy, it
could have sought to amend Rule 23. It did not.
The District also argues that FIDEA's request was properly denied because of security
concerns following the terrorist attacks of September 11, 2001. This contention must be
rejected. It is undisputed that the District never once mentioned security as a concern prior to
the filing of this unfair practice charge. Security was not mentioned in the two letters of denial
sent to FIDEA by Davis. There is also no evidence that Serrato ever mentioned security as a
concern in his meeting with FIDEA's representatives on October 16, 2001. Instead, FIDEA
was repeatedly informed that the denial was based on the fact that they had alternative facilities
available. Despite these facts, both Serrato and Davis testified that, in reality, security was
their "primary" concern in denying FIDEA's request.
The Board does not find the District's assertion that security was its primary concern to
be credible. The District would have the Board believe that despite being its primary concern,
neither Serrato nor Davis saw fit to mention their security concerns to FIDEA. Instead, the
District repeatedly emphasized the availability of alternative facilities, a secondary concern.
The District's credibility is further strained by the fact that FIDEA's request occurred only a
week or two after September 11, 2001. During that time the indelible events of that day were
13

undoubtedly first and foremost on most people's thoughts. It is simply inconceivable that the
District would have failed to mention security if it were in fact the District's "primary"
concern.
Additionally, it is not clear why security would have been a concern to the District.
The testimony in the record is that the FIDEA meeting would have been attended by 30 to 35
members. There is no evidence in the record that non-employees would have been in
attendance. All of FIDEA's members were employees of the District and had access to the
District's meeting room. The District does not explain why its employees - who already had
access to the meeting room during work hours - would constitute any more of a security
concern at a FIDEA meeting.
Lastly, the District argues that the Board lacks jurisdiction to consider this charge
because FIDEA failed to exhaust its administrative remedies. Citing to Social Services Union
v. Board of Supervisors (1978) 82 Cal.App.3d 498, 507 [147 Cal.Rptr. 126], the District
asserts that "a general principle of California law is that administrative remedies must be
exhausted before resorting to formal litigation." Under Rule 33 of the District's EER policies,
FIDEA could have appealed the denial to the Board of Directors. FIDEA's failure to file such
an appeal, argues the District, constitutes a failure to exhaust its administrative remedies.
The District's argument suffers from several flaws. 	First, this PERB proceeding is not
"formal litigation." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [l 09 P.2d
942].) To the contrary, this proceeding is exactly the type of "administrative remedy" that
FIDEA is required to exhaust. Second, the plain language of Rule 33 provides that Serrato's
decision is subject to appeal to the Board of Directors and subject to review by PERB.
14

Nothing in Rule 33 or the EER policies requires FIDEA to exhaust any appeal procedures prior
to filing an unfair practice charge with PERB.
Right of Access Under MMBA
In addition to the right of access provided by Rule 23, the ALJ also considered whether
an implied right of access exists under the MMBA. The Board has never addressed this
question. As the ALJ noted, both the Educational Employment Relations Act (BERA) 7 and the
Higher Education Employer-Employee Relations Act (HEERA)8 both expressly grant to
employee organizations the "right of access at reasonable times to areas in which employees
work ... " (BERA sec. 3543.l(b); HEERA sec. 3568.) Although the text of the Ralph C. Dills
Act (Dills Act)9 does not contain such language, this Board has held that a similar right is
implicit in the Dills Act because of its purpose and intent. (Corrections.) Finding that the
MMBA has a purpose and intent identical to the Dills Act, the ALJ held that a similar right of
access must exist under the MMBA.
The District vigorously challenges that ALJ's holding. The District argues that the
MMBA is distinct from the Dills Act because it expressly provides that a public agency may
adopt reasonable rules and regulations governing "access of employee organization officers
and representatives to work locations." (MMBA sec. 3507(f).) Thus, argues the District, a
right of access only exists under the MMBA if a public agency adopts such a rule.
7EERA is codified at Government Code section 3540 et seq.
8HEERA is codified at Government Code section 3560 et seq.
9The Dills Act is codified at Government Code section 3512 et seq.
15

While the question of whether an implied right of access exists under the MMBA is an
important one, it is not a question that the Board must decide here. As discussed above, it is an
unfair practice for a public agency to violate its own local rules adopted pursuant to MMBA
section 3507. (PERB Reg. 32603(b).) The Board has already found that the District violated
Rule 23 of its EER policies when it denied FIDEA the use of the District's meeting room for a
membership meeting on October 1, 2001. By doing so, the District violated PERB Regulation
32603(b ). Because of these findings, it is not necessary for the Board to decide whether an
implied right of access also exists under the MMBA and the Board leaves that question to be
answered another day.
ISSUE 2: Unilateral Change in the Terms and Conditions of Employment
Under the MMBA, the District is required to meet and confer in good faith with FIDEA
over any changes to the terms and conditions of employment. (MMBA sec. 3505.) Refusal to
meet and confer in good faith as required is an unfair practice. (PERB Reg. 32603(c).) In
determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c ), PERB utilizes either the "per se" or "totality of the conduct" test, depending on the
specific conduct involved and the effect of such conduct on the negotiating process. 	(Stockton
Unified School District (1980) PERB Decision No. 143.)10 Unilateral changes are considered
"per se" violations if certain criteria are met. Those criteria are: (1) the employer implemented
a change in policy concerning a matter within the scope ofrepresentation, and (2) the change
was implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations. 	(Vernon Fire Fighters v. City of Vernon (1980)
10When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
16

107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Assn.
v.
City
of
Stockton (1984) 161
Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant Joint Union High School District (1982) PERB
Decision No. 196 (Grant).)
The scope
of
representation under the MMBA includes:
...
all matters relating to employment conditions and employer-
employee relations, including, but not limited to, wages, hours,
and other terms and conditions
of
employment, except, however,
that the scope
of
representation shall not include consideration
of
the merits, necessity, or organization
of
any service or activity
provided by law or executive order. 	[MMBA sec. 3504.]
Although the language
ofMMBA
section 3504 differs slightly from EERA, HEERA, and the
Dills Act, all four statutes include within the scope
of
representation "wages, hours, and other
terms and conditions
of
employment." (MMBA sec. 3504; EERA sec. 3543.2; HEERA
sec. 3562(q) and (r); Dills Act sec. 3516.) The Board has long held that the "terms and
conditions
of
employment" include the right
of
access by employee organizations to employee
work locations. (Woodland Joint Unified School District (1987) PERB Decision No. 628;
Davis Joint Unified School District (1984) PERB Decision No. 474; Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375.) Accordingly, there can be little dispute that access by employee
organizations to employee work locations is a subject within the scope ofrepresentation.
Next, overwhelming evidence supports a finding that the District unilaterally changed
its policy on use
of
its meeting room without providing FIDEA an opportunity to negotiate. As
discussed above, prior to October 2001, the District's policy was to allow FIDEA use
of
the
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr.
507].)
17

meeting room provided that any meeting occur outside
of
normal work hours, not interfere
with the District's operations, and there was no scheduling conflict.
	By
its actions in
September and October 2001, the District unilaterally changed its policy to allow FIDEA use
of
the meeting room only when there were no alternatives available. The District's actions
constitute an unlawful unilateral change.
The District responds that FIDEA was denied use
of
the meeting room only once. A
one-time action cannot constitute an unlawful unilateral change, argues the District.
It
is true
that a unilateral change is not unlawful unless it alters a policy that has a generalized effect or
continuing impact. (Grant.) However, the District's denial was not intended as a one-time
action. There is no evidence to suggest that the District would have granted any future
requests while FIDEA remained affiliated with Local 3. To the contrary, the facts establish
that the District's denial was intended to enact a policy whereby use
of
the meeting
room
would be contingent upon no alternatives being available. This is not a one-time action but a
unilateral change in District policy.
The District also argues that there was no unlawful unilateral change because FIDEA
failed to respond to the District's offer to meet and confer. The District's argument is
specious.	
It
did not offer to meet and confer with FIDEA until an unfair practice charge had
been filed. Prior to that time, the District admitted that it refused to provide FIDEA
with
the
reasons for the denial. Further, as discussed above, the evidence establishes that the District
had made a final decision in October 2001.
Lastly, the District argues that any change was authorized by Rule 23
of
the EER
policies. Specifically, the District again asserts that it has complete discretion to grant or deny
requests for use of the meeting room under the EER policies. 	In this matter, the District
18

contends that it merely exercised such discretion to deny permission to use the room. This
contention has already been rejected. As previously discussed, Rule 23 was intended to codify
the District's past practice and does not grant to the District unfettered discretion.
Based on the above, the Board finds that the District unilaterally changed its policy on
use
of
its meeting room without providing FIDEA notice and an opportunity to negotiate. The
District's actions violated MMBA section 3505 and PERB Regulation 32603(c).
ISSUE
3:
	Discrimination
It is an unfair practice to discriminate against employees for exercising rights
guaranteed under the MMBA. (MMBA sec. 3506; PERB Reg. 32603(a).) To establish a
prima facie case
of
discrimination in violation
ofMMBA
section 3506 and PERB Regulation
32603(a), the charging party must show that: (1) the employee exercised rights under MMBA;
(2) the employer had knowledge
of
the exercise
of
those rights; and (3) the employer imposed
or threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained or coerced the employee because
of
the exercise
of
those rights.
(Campbell Municipal Employees Assn. v. City
of
Campbell (1982) 131 Cal.App.3d
416
[182
Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v. City
of
San Leandro (1976)
55 Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
MMBA section 3502 guarantees public agency employees the right to "form,
join,
and
participate" in the activities
of
employee organizations
"of
their own choosing" for the
purposes
of
representation on all matters
of
employer-employee relations. An integral part of
this statutory language is the right to determine in what manner employees will effect such
representation. Thus, the members of FIDEA had a protected right to select Local 3 as their
service provider. They made their selection known to the District on August 28, 2001.
19

Accordingly, FIDEA has established that it exercised protected rights under the MMBA and
that the District had knowledge
of
its protected activity.
Next, FIDEA must establish that the District discriminated against FIDEA members
because
of
their selection
of
Local 3 as a service provider. To establish such nexus, FIDEA
may demonstrate that adverse action was taken by the District shortly after FIDEA's selection
of
Local
3.
	Although the timing
of
the employer's adverse action in close temporal proximity
to
the employee's protected conduct is an important factor, it does not, without more,
demonstrate the necessary connection or "nexus" between the adverse action in protected
conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts
establishing one or more
of
the following nexus factors should be present: (1) the employer's
disparate treatment
of
the employee (Campbell, supra); (2) the employer's departure from
established procedures and standards when dealing with the employee (San Leandro, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro,
supra.); (4) the employer's cursory investigation
of
the employee's misconduct; (5) the
employer's failure to offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous reasons; or (6) employer animosity towards union
activists (San Leandro, supra; Los Angeles County Employees Assn.
v.
County
of
Los Angeles
(1985) 168 Cal.App.3d 683 [214 Cal.Rptr. 350].).
There is no question that the District's denial occurred in close temporal proximity to
the selection
of
Local 3. 	Although the District was first notified on August 28, 2001, it
initially questioned the legitimacy of the affiliation. On September 20, 2001, Local 3 and
FIDEA sent additional letters to the District explaining the affiliation. 	Only days later, the
20

District denied FIDEA's request citing the availability
of
alternatives resulting from the
affiliation.
Also supporting a finding
of
animus are the District's inconsistent explanations about
why it denied use
of
the room. On September 26, 2001, Davis initially denied permission to
use the room for an FIDEA meeting. Her letter cited FIDEA's recent affiliation with Local 3
and its resultant access to its facility in Fresno as the reason for the denial. There was no
mention
of
security considerations in this letter. On October 16, two FIDEA representatives
spoke to Serrato to request an explanation for, or reconsideration of, the District's denial.
Although the men engaged in a conversation about the matter, Serrato did not rely on,
or
even
mention, increased security concerns as a reason for the denial. On October 19, Davis sent a
second letter denying permission to use the room for a FIDEA meeting. This letter also failed
to cite security concerns as the reason for the District's denial.
It was not until an unfair practice charge had been filed that the District raised security
as a reason for the denial. At the administrative hearing, the District's witnesses went even
further by testifying that security was in fact their "primary" concern. As discussed above, the
Board finds the District's defense unbelievable. Since the District's security defense is
inconsistent with its previous explanations, it lacks credibility and supports an inference
of
unlawful animus.
Further supporting a finding
of
animus is the existence
of
disparate treatment.
Specifically, the District denied FIDEA the right to use the room but permitted the general
public to enter the same building for meetings of its Board of Directors, with the only
additional precaution of a hired security guard. Certainly the District's employees, who have
been screened by a pre-employment check, pose no greater threat than members of the general
21

public. This disparate District decision regarding after-hours visitors further supports
an
inference
of
unlawful motivation.
Having proffered no legitimate business reasons for its denial, the Board finds that
ample evidence exists to establish that the District discriminated against FIDEA when it denied
use
of
the meeting room.
	By
doing so, the District violated MMBA section 3506 and
PERB
Regulation 32603(a).
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record
in
this
case, it is found that the Fresno Irrigation District (District) violated the Meyers-Milias-Brown
Act (MMBA), Government Code sections 3505 and 3506, and Public Employment Relations
Board (PERB) Regulation 32603(a), (b) and (c), by denying the Fresno Irrigation District
Employees Association (FIDEA) the right
of
access to the District's facilities for
FIDEA
meetings, failing to meet and confer in good faith over matters within the scope
of
representation, and discriminating against its employees because
of
the exercise
of
protected
rights.
Pursuant to Section 3509(b)
of
the MMBA, it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Denying to FIDEA any rights provided by local rule, including
the
right
of
access to the District's facilities;
2. 	Failing to meet and confer in good faith over matters within the scope of
representation; and
3. 	Discriminating against employees for the exercise
of
protected rights.
22

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Reinstate the prior practice
of
allowing FIDEA to use the District's
facilities to conduct meetings with its members
as
long as the meetings take place outside
of
normal work hours and do not interfere with the District's operations.
2. 	Provide FIDEA notice and an opportunity to meet and confer over any
proposed changes to the District's policy on the use
of
its facilities for FIDEA meetings.
3.	
Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies
of
the
notice attached hereto as an Appendix.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the Sacramento Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports
to_
the regional director shall be concurrently served
on FIDEA.
Members Whitehead and Neima joined in this Decision.
23

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-29-M, Fresno Irrigation District
Employees Association
v.
Fresno Irrigation District, in which all parties had the right to
participate, it has been found that the Fresno Irrigation District (District) violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3505 and 3506, and Public
Employment Relations Board (PERB) Regulation 32603(a), (b) and (c), by denying the Fresno
Irrigation District Employees Association (FIDEA) the right
of
access to the District's
facilities for FIDEA meetings, failing to meet and confer in good faith over matters within the
scope
of
representation, and discriminating against its employees because
of
the exercise
of
protected rights.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Denying to FIDEA any rights provided by local rule, including the right
of
access to the District's facilities;
2.	
Failing to meet and confer in good faith over matters within the scope
of
representation; and
3.	
Discriminating against employees for the exercise
of
protected rights.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Reinstate the prior practice
of
allowing FID EA to use the District's
facilities to conduct meetings with its members as long as the meetings take place outside
of
normal work hours and do not interfere with the District's operations.
2. 	Provide FIDEA notice and an opportunity to meet and confer over any
proposed changes to the District's policy on the use
of
its facilities for FIDEA meetings.
Dated: 	FRESNO IRRIGATION DISTRICT
By:
---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.