City of San Diego (PERB 1738M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TANYA LEA DULANEY,

Charging Party, Case No. LA-CE-48-M

PERB Decision No. 1738-M

CITY OF SAN DIEGO,
January 20, 2005

Respondent.

TANYA LEA DULANEY,

Charging Party, Case No. LA-CO-5-M

SAN DIEGO MUNICIPAL EMPLOYEES'
ASSOCIATION,

Respondent.

Appearances: National Right to Work Legal Defense Foundation, Inc., by John R. Martin, Attorney, for
Tanya Lea DuLaney; Michael Rivo, Deputy City Attorney, for City of
San Diego; Tosdal, Smith, Steiner & Wax by Ann M. Smith, Attorney, for San Diego Municipal
Employees' Association.
Before Duncan, Chairman; Whitehead and Shek, Members.

DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board (PERB or

Board) on exceptions filed by the San Diego Municipal Employees' Association (Association) to an
administrative lawjudge's (ALJ) proposed decision (attached). The unfair

practice charge alleged that the City of San Diego (City) and the Association violated the Meyers-

Milias-Brown Act (MMBA)! by denying a non-agency fee payor the ability to use

‘The MMBA is codified at Government Code section 3500, et seq.

pretax money to enroll in employee group dental and eye care plans. The complaint alleged
that this violated MMBA sections 3502, 3506 and 3515.7(b). The charge alleged under
section 3515.7(b) was later withdrawn and a notice
of
partial withdrawal was issued June 18,
2002.
The case went to hearing before an ALJ. The ALJ found that Tanya Lea DuLaney
(DuLaney) participated in protected activity when she chose not to be a member
of
the
Association. He further found that because Association members were able to receive benefits
of
specific dental and eye care plans that were denied to DuLaney because she was not a
member
of
the Association, an agency fee payor or conscientious objector, there had been an
adverse action.
Following the issuance
of
the proposed decision by the ALJ, the City withdrew its
exceptions and only the Association proceeded. The City and the Association then went
forward with the meet and confer portion
of
the proposed remedy. That aspect is therefore
moot.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the amended charge, the parties' briefs, the proposed decision, the exceptions filed by
the Association and the response filed by DuLaney. We find the ALJ proposed decision to be
free
of
prejudicial error and adopt it as the Board's own decision, subject to the discussion
below.
DISCUSSION
DuLaney is a criminologist with the City. She has been employed in this capacity since
1995. She is in one of four professional bargaining units represented by the Association. She
is not a member of the Association.
2

In the comprehensive memorandum
of
understanding (MOU) between the City and the
Association for the term July
1,
1998 through June
1,
2002, a flexible benefit plan was
included in Article 28.
In the flexible benefit plan, the City made a specific contribution
of
pretax money
toward each employee's benefits. Using this money, each employee was required to select one
health insurance policy and one life insurance policy. With the remaining money the employee
had a choice among additional benefits. Two
of
the options were for Association members
only. One was an eye care plan and one was a dental plan.
The MOU noted that the only dental plan available under the flexible benefits plan was
the plan only available to Association members. The only eye care plan was the one open only
to Association members.
That MOU had no agency shop provision, but on October 31, 2001, a separate MOU
was signed between the City and the Association regarding agency shop. The City and the
Association agreed on procedures for implementing agency shop elections in three
of
the four
professional units, including DuLaney's.
A new comprehensive MOU was executed on May 14, 2002. Article 28 continued the
flexible benefits plan, stating, in part "An employee must be either an [Association] member,
or where appropriate, an agency fee payor to be eligible for [Association's] dental and eye care
plans."
At hearing, it was stipulated by the parties that Article 28
of
the new MOU would be
interpreted as allowing an employee like DuLaney, neither an Association member nor
required by law or contract to be an agency fee payor or conscientious objector, to enroll in the
Association eye care and/or dental plan by voluntarily assuming the role of agency fee payor or
conscientious objector.
3

DuLaney then testified at hearing that she would enroll in the Association dental plan
if
she were not required to become a member
of
the Association or agency fee payor, but she
would not become an agency fee payor just to enroll. She also testified she was not a
conscientious objector as defined by the agency shop memo.2
The PERB complaint against the Association alleges that the Association has violated
MMBA section 3506 and PERB Regulation 32604(b)3 by discriminating against DuLaney, by
interfering with employee rights and by engaging in conduct "inconsistent with [its] duty to
fairly represent employees."
Discrimination
The City and the Association argued that the denial
of
this benefit opportunity was not
an adverse action subject to discrimination law. Although they relied on Palo Verde Unified
School District (1988) PERB Decision No. 689 (Palo Verde) for the premise that must prove
an adverse action as part
of
a prima facie case, the ALJ was not persuaded.
In Palo Verde an employee office relocation was at issue.
The ALJ found Palo Verde distinguishable. He stated that an office relocation may be
favorable or unfavorable but that the loss
of
a benefit opportunity is unfavorable.
He noted that the test in that case is "whether [a] reasonable person under the same
circumstances would consider [such] action adverse". He reasoned that the benefit itself is,
when looked at objectively, a positive. He noted that it was described by the Association as an
inducement for· employees to join the Association. He concluded that
if
it is favorable enough
2The MOU defined conscientious objector as an employee "who is a member
of
a bona
fide religion, body or sect that has historically held conscientious objections to joining or
financially supporting public employee organizations."
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
4

to be considered an inducement, then to be denied the opportunity is unfavorable and therefore
adverse. The ALJ also noted that if the situation were reversed and Association participants
were denied a benefit because they belonged to the Association, he thought they would
certainly believe that involved an adverse action.
Interference
The test for whether a respondent has interfered with the rights of employees under the
MMBA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
(Public Employees Assn. v. Board of Supervisors (1985) 167
Cal.App.3d 797, 807 [213 Cal.Rptr. 491].)
The ALJ noted that DuLaney engaged in protected activity by abstaining from
participation in the Association. She and any other employees who choose not to join the
Association have every right not to. He found no legitimate business reason for the policy
here. This was another violation ofMMBA section 3506 and a violation of PERB
Regulation 32603(a) against the City, and a violation ofMMBA section 3506 and PERB
Regulation 32604(b) against the Association.
The Association, in its exceptions, argues that this is a relatively minor employer action
therefore not adverse (Association's Statement of Exceptions, p. 6:8-10). The Association
disagrees with the ALJ and believes his reliance on Campbell Municipal Employees Assn. v.
City of Campbell (1982) 131 Cal.App.3d 416,423 [182 Cal.Rptr. 461] (Campbell) is
misplaced.
5

The ALJ cited Campbell, concluding that this situation is one of discrimination against
DuLaney and others like her because of the fact that she is excluded from the Association
plans is "inherently destructive of important employee rights, because it targets the employee
right that is most fundamental to MMBA: the right to join and participate in employee
organizations, or to refuse to join or participate in employee organizations."
Duty of Fair Representation
The ALJ also found a violation of the duty of fair representation by the Association for
negotiating an MOU that discriminates against DuLaney and other employees like her who
abstain from participation in the Association. This was a violation of the Association's duty
of fair representation and an additional violation of MMBA section 3506 and PERB
Regulation 32604(b ).
DISCUSSION
We disagree with the conclusion of the exceptions filed by the Association. At p. 25,
the conclusion states:
The facts of this case may not fit the mold of prior cases which
have come before PERB for adjudication. Certainly, there is not
even a remote similarity between the facts here and those which
warranted action in prior PERB and state court cases to redress
true discrimination and interference with employees' protected
rights.
On the contrary, just as the ALJ has set forth, this is exactly a case of discrimination.
Whether it applies to one person or a cast of thousands, it is still a situation in which a person
is being denied a benefit because of protected activity. It just happens that in this case that
protected activity is not joining the Association rather than joining it. Just as there should be
no adverse action for joining the Association, there should be no adverse action for not joining
it. It comes down to whether Palo Verde is on point or Campbell is.
6

In Palo Verde, the issue was an office relocation. There, a union activist teacher was
given an extra duty assignment of overseeing the district computer program. He had to drive
from his campus to the district office a couple of days a week to perform those duties. The
office he used for the extra duty assignment was adjacent to the office of the superintendent
and he could see and hear a lot of what went on in the superintendent's office.
The district then relocated the extra duty work from the district office to the campus
where he taught after the possibility of a teacher's strike was raised. The teacher filed an
unfair practice charge alleging the move was because of his union activities. The Board found
that in a technical sense the union activities resulted in the relocation, but that the district
overcame any inference of unlawful motive.
The district knew of the teacher's union activities when he was originally appointed to
the position. It was the possibility of a strike and the district preparing for that possibility that
caused the need to relocate the teacher, not the teacher's activities, according to the Board.
The Board held that the relocation was not unlawful where the employee suffered no adverse
consequences from the move. The test was a reasonable person standard regarding adverse
consequences. In footnote 5 the Board stated, "While the employee may reasonably have felt
that he was in fact injured by the relocation, as the dissent argues, his reaction is still a
subjective one if, as here, the facts do not support the alleged injury." (Palo Verde.)
In Campbell, the City of Campbell adopted a date for retroactive payment of salary and
medical insurance premium increases that were less favorable for members of one organization
over another.
The Campbell Municipal Employees Association (CMEA) went to impasse with the
city over the issue of establishing wages and conditions of employment. The negotiations had
entered "meet and confer" sessions to negotiate a memorandum of understanding. In the
7

middle of the sessions, the city decided they should wait until after the election to see if
Proposition 13 passed. CMEA agreed and also agreed that existing salaries and insurance
coverage would continue.
By January 1979 they agreed on all but two issues. Those issues were the amount of
the city's 1978-1980 contribution on health care premiums for city employees and the method
of disposing of any savings realized by the city from the anticipated depooling of participation
in the Public Employees' Retirement System. The increases were to be paid retroactive to
October 1, 1978.
Also in January 1979, the city negotiating committee requested an impasse meeting.
They met and still were unable to resolve the two issues. The parties then went to mediation.
It was unsuccessful. In accordance with the city's impasse procedures the issues then went to
the city council. At that point, the city council did not limit itself to the two issues still in
dispute and reached back into the settled issues and made modifications.
CMEA filed charges alleging that the only issues subject to determination by the city
council under the impasse procedures were those still unresolved when impasse was requested.
One of the problems created was that "the date the City Council fixed for retroactivity
of increases for those represented by CMEA was at variance not only with the date that was
agreed upon earlier but also with the date fixed for retroactivity of increases for employees
represented by all other organizations which negotiated with the City." The only difference
asserted being that CMEA, unlike other organizations, chose to utilize the impasse procedure.
(Campbell at p. 422.)
The court pointed out that "the City had in effect discriminated against employees
represented by CMEA by withholding from them a degree of retroactivity in wage and fringe
8

benefit increases which had been agreed upon in earlier negotiations and which was granted to
all other employees." (Id. at p. 424.)
We agree with the ALJ that Palo Verde is not on point and that Campbell is. We
therefore recommend that the ALJ proposed decision be adopted as the Board's own. 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 when there was an adverse action by treating members of
one union differently than members of others. Here, the benefit is denied to non-union
members.
ORDER IN CASE NO. LA-CE-48-M
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is found that the City of San Diego (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3506 and Public Employment Relations Board (PERB)
Regulation section 32603(a), by discriminating against Tanya Lea DuLaney (DuLaney), and by
interfering with employee rights, in the availability of dental and eye care plans under the
flexible benefits plan established by the City's memorandum of understanding with the San
Diego Municipal Employees' Association (Association).
Pursuant to MMBA section 3509(b), it is hereby ORDERED that the City, its governing
council and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against DuLaney because of her non-participation in the
Association, in the availability of dental and eye care plans under the flexible benefits plan.
2. 	Interfering with employee rights of non-participation in the Association,
in the availability of dental and eye care plans under the flexible benefits plan.
9

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post copies of the Notice attached hereto as Appendix A at all work locations
where notices to bargaining unit employees are customarily posted. The Notice must be signed
by an authorized agent of the City, indicating that the City will comply with the terms of this
Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The City shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on DuLaney.
ORDER IN CASE NO. LA-CO-5-M
Based on the foregoing findings of fact, conclusions of law, and the entire record in
this case, it is found that San Diego Municipal Employees' Association (Association) violated
the Meyers-Milias-Brown Act (MMBA), Government Code section 3506 and Public
Employment Relations Board (PERB) Regulation section 32604(b ).
Pursuant to the MMBA, it is hereby ORDERED that the Association, its administrators
and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against Tanya Lea DuLaney (DuLaney) because of her
non-participation in the Association, in the availability of dental and eye care plans under the
flexible benefits plan.

2. 	Interfering with employee rights
of
non-participation in the Association,
in the availability
of
dental and eye care plans under the flexible benefits plan.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Within ten (10) workdays following the date this decision is no longer
subject to appeal, post copies
of
the Notice attached hereto as Appendix
Bat
all work locations
where notices to bargaining unit employees are customarily posted. The Notice must be signed
by an authorized agent
of
the Association, indicating that the Association will comply with the
terms
of
this Order. Such posting shall be maintained for a period
of
thirty (30) consecutive
workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced in size,
altered, defaced or covered with any material.
2. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
PERB, or the General Counsel's designee. The Association
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on DuLaney.
Members Whitehead and Shek joined in this Decision.
11

1

APPENDIX A
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. LA-CE-48-M, Tanya Lea DuLaney v. City
of San Diego, in which all parties had the right to participate, it has been found that the City of
San Diego (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code section
3506 and Public Employment Relations Board (PERB) Regulation section 32603(a). The City
has violated MMBA section 3506 and PERB Regulation 32603(a) by discriminating against
Tanya Lea DuLaney (DuLaney) and by interfering with employee rights, in the availability of
dental and eye care plans under the flexible benefits plan established by the City's
memorandum of understanding with the San Diego Municipal Employees' Association
(Association).
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Discriminating against DuLaney because of her non-participation in the
Association, in the availability of dental and eye care plans under the flexible benefits plan.
2. 	Interfering with employee rights of non-participation in the Association, in the
availability of dental and eye care plans under the flexible benefits plan.
Dated: --------- CITY OF SAN DIEGO
By: --------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIXB 
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. LA-CO-5-M, Tanya Lea DuLaney v.
San Diego Municipal Employees' Association, in which all parties had the right to participate,
it has been found that the San Diego Municipal Employees' Association (Association) violated
the Meyers-Milias-Brown Act, Government Code section 3506 and Public Employment
Relations Board Regulation section 32604(b ).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1.	
Discriminating against Tanya Lea DuLaney because
of
her non-participation in
the Association, in the availability
of
dental and eye care plans under the flexible benefits plan.
2. 	Interfering with employee rights
of
non-participation in the Association, in the
availability
of
dental and eye care plans under the flexible benefits plan.
Dated:
---------
SAN DIEGO MUNICIPAL EMPLOYEES'
ASSOCIATION
By:
--------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
v
TANYA LEA DULANEY,
Charging Party,
V.
CITY OF SAN
DIEGO,
Res ondent.
TANYA LEA DULANEY,
Charging Party,
v.
SAN DIEGO MUNICIPAL EMPLOYEES'
ASSOCIATION,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-48-M
UNFAIR PRACTICE
CASE NO. LA-CO-5-M
PROPOSED DECISION
(6/10/03)
Appearances: National Right to Work Legal Defense Foundation
by
John R. Martin,
Staff
Attorney, for Tanya Lea DuLaney; Michael Rivo, Deputy City Attorney, for City
of
San Diego; Tosdal, Levine, Smith, Steiner & Wax
by
Ann M. Smith, Attorney, for San Diego
Municipal Employees' Association.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In these two cases, a public employee alleges that her employer unlawfully
discriminated against her and interfered with employee rights, and that her union also
unlawfully discriminated against her, interfered with employee rights, and violated its duty
of
fair representation. The employer and the union deny that their conduct was unlawful.
Tanya Lea DuLaney (DuLaney) filed unfair practice charges against the City
of
San
Diego (City) and the San Diego Municipal Employees' Association (Association or MEA) on

March 6, 2002. The general counsel of the Public Employment Relations Board (PERB)
issued complaints against the City and the Association on June 18, 2002. The Association
filed an answer on July 11, 2002; the City filed an answer on September 12, 2002.
On September 9, 2002, DuLaney filed a request to amend the complaints, which was
granted in part and denied in part on October 24, 2002. A formal hearing was held on
February 19, 2003. With receipt of the final post-hearing brief on May 30, 2003, the cases
were submitted for decision.
FINDINGS OF FACT
DuLaney is a public employee within the meaning of Government Code section
3501(d) of the Meyers-Milias Brown Act (MMBA). 1 The City is a public agency within the
meaning of MMBA section 350l(c) and PERB Regulation 32016(a).2 The Association is an
employee organization within the meaning ofMMBA section 3501(a), a recognized employee
organization within the meaning of MMBA section 3501 (b), and an exclusive representative
within the meaning of PERB Regulation 32016(b).
DuLaney has been employed by the City as a criminalist since 1995. She is in the
professional unit of City employees, one of four bargaining units represented by the
Association. She is not a member of the Association.
There was a comprehensive Memorandum of Understanding (MOU) between the City
and the Association for the term July 1, 1998, through June 30, 2002. Article 28 of this MOU
provided a flexible benefits plan, under which the City made a specific contribution of pretax
money toward each employee's benefits. For the fiscal year beginning July 1, 2002, this
1 MMBA is codified at Government Code sec. 3500 and following.
2 PERB Regulations are codified at Cal. Code of Regs., tit. 8, sec. 31001 and following.
2

contribution was set at $4,175. Using this money, each employee was required to select one
health insurance policy and one life insurance policy. With the remaining money, the
employee could select among the following additional benefits:
1. 	Dependent Care Reimbursement
2. 	Dental/Medical/Vision Reimbursement
3. 	Cash Payment (taxable)
4. 	401(k)
5. 	M.E.A. Dental Plan (must be M.E.A. member)
6. 	M.E.A. Eye Care Plan (must be M.E.A. member)
7. 	Cancer and Catastrophic Illness Insurance
While the City's contribution increased in later years, as did the cost of various benefits, the
employees' basic options remained more or less the same.
As the MOU indicated, the only dental plan available under the flexible benefits plan
was the "M.E.A. Dental Plan," which was available only to Association members, and the only
eye care plan was the "M.E.A. Eye Care Plan," also available only to Association members.
Non-members could use the City's contribution for other purposes (including dental/medical/
vision reimbursement and a taxable cash payment), but they could not use that contribution for
the only employee group dental and eye care plans.
This comprehensive 1998-2002 MOU had no agency shop provision. On October 31,
2001, however, the City and the Association executed a special and separate MOU regarding
agency shop. Pursuant to MMBA section 3502.5 (as amended effective January 1, 2001), the
City and the Association agreed in the MOU on procedures for implementing agency shop
elections in three of the Association's four bargaining units, including DuLaney's professional
unit. The MOU provided that in any unit that voted in favor of agency shop each employee
"shall have the choice of either becoming a member of [the Association], or of being a non-
member and paying a service fee or conscientious objector fee." The MOU defined a
3

conscientious objector as an employee "who is a member of a bona fide religion, body, or sect
that has historically held conscientious objections to joining or financially supporting public
employee organizations." Such a conscientious objector would be required "to pay sums equal
to the dues, initiation fees, or agency shop fees, to a non-religious, non-labor charitable fund,"
to be chosen from a designated list.
Agency shop elections were held in the three bargaining units on December 1, 2001.
Of the three units, only the technical unit voted in favor of agency shop. DuLaney's
professional unit did not, nor did the administrative and field support unit.
On May 14, 2002, the City and the Association executed a new comprehensive MOU
for the term July 1, 2002, through June 30, 2005. Article 14 of this new MOU incorporated by
reference the special MOU regarding agency fee. Article 14 further stated:
Modified Agency Shop: Effective July 1, 2002, each person
hired to fill a position in the Professional or in the Administrative
Support and Field Service Units shall, as a condition of
employment, be required to become a member of MEA or to pay
a service fee. This modified agency shop provision shall also be
made applicable to each person hired to fill a position in the
Technical Unit in the event that, during the life of this MOU, the
agency shop arrangement currently in effect for that unit is
terminated by a lawful vote of the employees in that unit. This
modified agency shop shall be administered on the same terms as
currently in effect for the agency shop arrangement in the
Technical Unit. [Emphasis added.]
Article 28 of the new MOU continued the flexible benefits plan, stating in part:
An employee must be either an MEA member, or where
appropriate, an agency fee payor to be eligible for MEA's Dental
and Eye Care Plans.
The Association's dental and eye care plans continued to be the only such plans available
under the flexible benefits plan.
4

At the hearing, it was stipulated that Article 28 of the new MOU would be interpreted
as allowing an employee like DuLaney, who is neither an Association member nor required by
law or contract to be an agency fee payor or conscientious objector, to enroll in the
Association's dental plan and/or eye care plan by voluntarily assuming the status of an agency
fee payor or conscientious objector.
DuLaney testified at hearing that she would enroll in the Association's dental plan if
she were not required to become an Association member or agency fee payor, but she would
not become an agency fee payor in order to enroll. She also testified that she was not a
conscientious objector as defined by the agency shop MOU.
For the 2002-2003 fiscal year, the City's pretax flexible benefit plan contribution for
each employee was $4,725. DuLaney allocated $75 of this amount to life insurance, $2,801 to
health insurance, $300 to dental/medical/vision reimbursement, $1,000 to a 401(k) plan, and
$549 to a cash payment, for a grand total of $4,725.
ISSUES
1. 	Did the City and the Association unlawfully discriminate against DuLaney?
2. 	Did the City and the Association interfere with employee rights?
3. 	Did the Association violate its duty of fair representation?
CONCLUSIONS OF LAW
MMBA section 3502 states:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
5

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.
PERB Regulation 32603 states in part:
It
shall be an unfair practice for a public agency to do any
of
the
following:
(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.
The PERB complaint against the City alleges that the City has violated MMBA section 3506
and PERB Regulation 32603(a) by discriminating against DuLaney for the exercise
of
her right
under MMBA section 3502 to abstain from Association membership, and by interfering with
employee rights under MMBA.
PERB Regulation 32604 states in part:
It
shall be an unfair practice for an employee organization to do
any
of
the following:
(b) 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.
The PERB complaint against the Association alleges that the Association has violated MMBA
section 3506 and PERB Regulation 32604(b) by discriminating against DuLaney, by
interfering with employee rights, and by engaging in conduct "inconsistent with [its] duty to
fairly represent employees."
6

Discrimination
At first glance, these cases seem quite simple: the City and the Association have
negotiated and maintained a benefit policy that explicitly discriminates between Association
participants and non-participants, offering a benefit opportunity to one group while denying it
to the other. In the final analysis, the cases really are that simple.
The benefit opportunity in question is the opportunity to use pretax money to enroll in
employee group dental and eye care plans. Under the MOU between the Association and the
City, Association participants have this opportunity, because they are Association participants,
while non-participants like DuLaney do not have this opportunity.
In the face of these facts, the City and the Association argue that the denial of this
benefit opportunity is not an "adverse action" subject to discrimination law.3 They rely on
Palo Verde Unified School District (1988) PERB Decision No. 689 (Palo Verde), in which
PERB held that a charging party must prove an adverse action as part of a prima facie case of
discrimination, and that the adversity of the action must be measured by an objective test. (See
also Newark Unified School District (1991) PERB Decision No. 864 (test is whether
reasonable person under same circumstances would consider action adverse).)
The argument of the City and the Association on this point is unconvincing. There is
no dispute in this case that the benefit opportunity in question is, objectively, a good thing. In
its post-hearing briefs, the Association repeatedly and honestly describes the benefit
opportunity as an inducement for employees to join the Association. If the benefit opportunity
is a good thing, favorable enough to be an inducement, then being denied that opportunity is
unfavorable and adverse.
3 Actually, the Association makes the argument; the City simply concurs.
7

The facts
of
Palo Verde are readily distinguishable.	
In
that case, the alleged adverse
action was the relocation
of
an employee's office. Such a relocation may be favorable or
unfavorable, depending on the circumstances. Even under the same circumstances, reasonable
people may disagree, for purely subjective reasons, on whether the action was favorable or
unfavorable.
Reasonable people will agree, however, that opportunity and choice are good things,
which allow them to maximize their economic advantage and personal happiness. Reasonable
people will disagree, for subjective reasons, on the value
of
a particular opportunity, but
reasonable people consider opportunity and choice to be favorable, and the denial
of
opportunity and choice to be unfavorable.
So it is with the benefit opportunity in this case. Although the opportunity to use pretax
money to enroll in employee group dental and eye care plans will have different subjective
value to different employees, reasonable employees will find the opportunity a favorable
condition
of
employment, and the denial
of
that opportunity an adverse condition
of
employment.
If
the facts
of
these cases were reversed, and Association participants were denied a
benefit opportunity because they were Association participants, would the Association say that
there was no adverse action? I think not.
I conclude that the benefit policy in the MOU does indeed discriminate against
DuLaney for the exercise
of
her right to abstain from participation in the Association, through
the adverse action
of
denying her the opportunity to use pretax money to enroll in employee
group dental and eye care plans. Under MMBA, however, that is not the end of analysis. In
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 [182
8

Cal.Rptr. 461] (Campbell), the court held that
if
discrimination under MMBA is "inherently
destructive"
of
important employee rights, no proof
of
unlawful motivation is needed, even
if
there is evidence the discrimination was motivated by business considerations. The court
further held that
if
the effect on employee rights is "comparatively slight," proof
of
unlawful
motivation is needed,
if
there is evidence
of
legitimate and substantial business justifications.
Applying Campbell to the present cases, I would conclude that the discrimination
against DuLaney is "inherently destructive"
of
important employee rights, because it targets
the employee right that is most fundamental to MMBA: the right to join and participate in
employee organizations, or to refuse to join or participate in employee organizations. (See
MMBA section 3502, quoted above.)
If
the facts
of
these cases were reversed, and Associatio
participants faced discrimination for choosing to be Association participants, I assume the
Association would agree that the discrimination was "inherently destructive"
of
important
employee rights and thus a violation
of
MMBA.
n
Even
ifl
concluded that the effect on employee rights was "comparatively slight," I
would still find a violation
of
MMBA, because there is no evidence
of
"legitimate and
substantial business justifications." For its part, the City has offered no evidence and no
argument that it had a business justification for discriminating against DuLaney. The
Association has just one: the inducement
of
employees to join the Association.
Of
course the Association has the right to encourage employees to join, and there are
many legal ways for it to do so. Surely, however, the inducement
of
membership cannot be a
legal justification for a discriminatory MOU. Any provision that discriminates against non-
members will naturally tend to induce membership.
If
that tendency were enough to justify
9

otherwise prohibited discrimination, then the justification would completely swallow the
prohibition.
In defending these cases, the City and the Association understandably try to distance
themselves from the discriminatory MOU provisions in question. On reading the
Association's post-hearing briefs, one would think that the City and the Association only
negotiated about the amount of the City's flexible benefit plan contribution. Meanwhile, in a
completely separate and unrelated scenario, the Association simply offered dental and eye car
plans as a service to its members. This impression created by the Association's briefs omits
three crucial features of the MOU:
e
1. 	The MOU limits how the City's pretax flexible benefit plan contribution can be
used.
2. 	Under the MOU, there is only one dental plan and one eye care plan for which
the City's contribution can be used.
3. 	This one dental plan and this one eye care plan are only available to Association
members and fee payors.
These features of the MOU did not negotiate themselves into existence. The City and the
Association negotiated them.
I conclude that both the City and the Association did unlawfully discriminate against
DuLaney for the exercise of her right to abstain from participation in the Association, by
denying her the opportunity to use pretax money to enroll in employee group dental and eye
care plans. The City thus violated MMBA section 3506 and PERB Regulation 32603(a). The
Association thus violated MMBA section 3506 and PERB Regulation 32604(b).
10

Interference
Under MMBA, the test for interference with employee rights is parallel to the test for
discrimination. Under Public Employees Assn. v. Board of Supervisors (1985) 167
Cal.App.3d 797 [213 Cal.Rptr. 491], interference is established by proof of (1) protected
activities by employees, (2) conduct that tends to interfere with, restrain or coerce employees
engaging in those activities, and (3) a lack of legitimate business justifications for that conduct.
In the present cases, employees like DuLaney engage in protected activity by abstaining
from participation in the Association. (MMBA section 3502.) The benefit policy in question
tends to interfere with those employees by denying them a benefit opportunity. The more the
employees need or want that benefit opportunity, the more they are coerced into abandoning
their protected activity of non-participation in the Association. As previously discussed, there
is no legitimate business justification for that policy in these cases.
I conclude that the City and the Association have interfered with employee rights under
MMBA. The City has thus again violated MMBA section 3506 and PERB Regulation
32603(a), while the Association has again violated MMBA section 3506 and PERB Regulation
32604(b).
Duty of Fair Representation
MMBA does not expressly impose a statutory duty of fair representation on employee
organizations. In Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th
1213 [42 Cal.Rptr. 2d 389], however, the court stated that under MMBA "unions owe a duty of
fair representation to their [unit] members, and this requires them to refrain from representing
their [unit] members arbitrarily, discriminatorily, or in bad faith."
11

In the present cases, I have concluded that the City and the Association negotiated an
MOU that discriminates against employees like DuLaney who abstain from participation in the
Association. The Association's actions in negotiating that MOU were thus discriminatory and
in violation of its duty of fair representation. The Association has thus again violated MMBA
section 3506 and PERB Regulation 32604(b).
Collateral Estoppel
In its post-hearing reply brief, as well as in a footnote to its opening brief, the
Association argues that PERB should give collateral estoppel effect to a recent federal court
order granting motions to dismiss in Brannian, et al., v. City of San Diego, et al. (S.D. Cal.)
Case No. 02CV1726 BTM (CGA) (order entered May 1, 2003). In Gikas v. Zolin (1993)
6 Cal.4th 841 [25 Cal.Rptr.2d 500], the California Supreme Court reiterated the threshold
requirements for application of the collateral estoppel doctrine:
Traditionally, we have applied the doctrine only if several
threshold requirements are fulfilled. First, the issue sought to be
precluded from relitigation must be identical to that decided in a
former proceeding. Second, this issue must have been actually
litigated in the former proceeding. Third, it must have been
necessarily decided in the former proceeding. Fourth, the
decision in the former proceeding must be final and on the merits.
Finally, the party against whom preclusion is sought must be the
same as, or in privity with, the party to the former proceeding.
In the present case, it appears that most or all of these requirements are unfulfilled.
First of all, it does not appear that the order granting motions to dismiss is final. Also,
it does not appear that DuLaney is in privity with any party to the federal proceeding.
Moreover, the issue before the federal court is solely one of federal constitutional law, not
MMBA law. Thus, the federal court could base its order in part on the proposition that
"neither union members nor non-union members constitute a 'protected class."' That is not
12

MMBA law as it applies to these cases. I conclude that the federal court order should not be
given collateral estoppel effect.
Remedy
MMBA section 3509(b) in part gives PERB jurisdiction to determine "whether the
charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate
the purposes of this chapter [MMBA]." In the present cases, the City and the Association have
been found to have violated MMBA by discriminating against DuLaney and by interfering
with employee rights. The Association has also been found to have violated its dutyof fair
representation. It is therefore appropriate to direct the City and the Association to cease and
desist from such conduct.
It is also necessary and appropriate to direct the City and the Association to take
affirmative actions to effectuate the purposes of MMBA. Without such actions, the current
MOU between the City and the Association will continue to discriminate against DuLaney, to
interfere with employee rights, and to deny non-participants in the Association their right to
fair representation.
The City and the Association argue that any remedy in these cases should apply only to
DuLaney. If these cases were only about discrimination against DuLaney, or if the remedy
was only to be retrospective, I would tend to agree. DuLaney, however, has not sought any
make-whole remedy for past discrimination against her. Furthermore, the PERB complaints,
which I have found to be justified, allege not only discrimination against DuLaney but also
interference with "employee rights" and a violation of the Association's duty "to fairly
represent employees." These allegations on their face are not limited to DuLaney, nor should
the remedy be.
13

The City and the Association also argue that they should not be required to remedy any
violation until their next scheduled negotiations in 2005. I see no reason, however, why the
City and the Association should thus be allowed to continue their interference with employee
rights.4 I nonetheless appreciate that benefit plans cannot be amended overnight, and I would
therefore allow the City and the Association some time to amend the flexible benefit plan.
An issue not fully explored in the briefs is exactly how the City and the Association
may amend the flexible benefit plan to end discrimination and interference. I see at least three
options:
1.	
The Association's dental and eye care plans could be removed from the flexible
benefits plan. The plans could still continue as member benefits outside the flexible plan. (I
appreciate, however, that this option would displease Association members.)
2. 	The Association's dental and eye care plans could be opened up to non-
participants in the Association.
3. 	Additional dental and eye care plans, which are open to non-participants in the
Association, could be added to the flexible benefits plan.
It is also appropriate that the City and the Association be directed to post notices
incorporating the terms
of
the orders in these cases. Posting
of
such notices, signed
by
authorized agents
of
the City and the Association, will provide employees with notice that the
City and the Association have acted in an unlawful manner, are being required to cease and
desist from this activity and to take affirmative remedial actions, and will comply with the
4 Also, I note that a preamble to the current MOU states in part, "The City and MEA
agree to meet and confer during the term
of
this Memorandum only to the extent required by
applicable law." I conclude that applicable law does require them to meet and confer, to
remedy the MMBA violation embedded in the MOU.
14

orders. It effectuates the purposes of MMBA that employees be informed both of the
resolution of this controversy and of the City's and the Association's readiness to comply with
the ordered remedies. (Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER IN LA-CE-48-M
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is found that the City of San Diego (City) violated the Myers-Milias-Brown Act
(MMBA or Act), Government Code section 3506, and regulations of the Public Employment
Relations Board, California Code of Regulations, title 8, section 32603(a), by discriminating
against Tanya Lea DuLaney (DuLaney), and by interfering with employee rights, in the
availability of dental and eye care plans under the flexible benefits plan established by the
City's memorandum of understanding with the San Diego Municipal Employees' Association
(Association).
Pursuant to MMBA section 3509(b), it is hereby ORDERED that the City, its governing
council and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against DuLaneybecause of her non-participation in the
Association, in the availability of dental and eye care plans under the flexible benefits plan.
2. 	Interfering with employee rights of non-participation in the Association,
in the availability of dental and eye care plans under the flexible benefits plan.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Meet and confer with the Association so as to establish, by the time of
the next open enrollment period after this proposed decision becomes final, a flexible benefits
15

plan that does not interfere with employee rights
of
non-participation in the Association, in the
availability
of
dental and eye care plans.
2. 	Post copies
of
the Notice attached hereto as Appendix A, within 10
workdays
of
this proposed decision becoming final, at all work locations where notices to
bargaining unit employees are customarily posted. The Notice must be signed by an
authorized agent
of
the City, indicating that the City will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
30 consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any material.
3. 	Make written notification
of
the actions taken to comply with the Order,
within 10 workdays
of
this proposed decision becoming final, to the San Francisco Regional
Director
of
the Public Employment Relations Board, in accord with the regional director's
instructions.
PROPOSED ORDER IN LA-CO-5-M
Based on the foregoing findings
of
fact and conclusions
of
law, and the entire record in
this case, it is found that the San Diego Municipal Employees' Association (Association)
violated the Myers-Milias-Brown Act (MMBA or Act), Government Code section 3506, and
regulations
of
the Public Employment Relations Board, California Code
of
Regulations, title 8,
section 32604(b), by discriminating against Tanya Lea DuLaney (DuLaney), and by interfering
with employee rights, in the availability
of
dental and eye care plans under the flexible benefits
plan established by the Association's memorandum
of
understanding with the City
of
San
Diego (City).
16

Pursuant to MMBA section 3509(b ), it is hereby ORDERED that the Association, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Discriminating against DuLaney because
of
her non-participation in the
Association, in the availability
of
dental and eye care plans under the flexible benefits plan.
2. 	Interfering with employee rights
of
non-participation in the Association,
in the availability
of
dental and eye care plans under the flexible benefits plan.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Meet and confer with the City so as to establish, by the time
of
the next
open enrollment period after this proposed decision becomes final, a flexible benefits plan that
does not interfere with employee rights
of
non-participation in the Association, in the
availability
of
dental and eye care plans.
2. 	Post copies
of
the Notice attached hereto as Appendix B, within 10
workdays
of
this proposed decision becoming final, at all work locations where notices to
bargaining unit employees are customarily posted. The Notice must be signed by an
authorized agent
of
the Association, indicating that the Association will comply with the terms
of
this Order. Such posting shall be maintained for a period
of
30 consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any material.
3. 	Make written notification
of
the actions taken to comply with the Order,
within 10 workdays
of
this proposed decision becoming final, to the San Francisco Regional
Director
of
the Public Employment Relations Board, in accord with the regional director's
instructions.
17

APPEAL RIGHTS
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and these Proposed Orders shall become final unless a party files a statement
of
exceptions with the Public Employment Relations Board (PERB or Board) itself within
20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031
18 th Street
Sacrament, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB Regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions, (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
p.m.) on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing. (Cal. Code
Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Cover Sheet which
meets the requirements
of
California Code
of
Regulations, title 8, section 32135(d), provided
the filing party also places the original, together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, secs 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
18

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
19
THOMAS"J. 	ALN
Administrative 	Law Judge