PERB Decision No. 2106SA•State of California (Department of Personnel Administration) * * * OVERRULED IN PART by Los Angeles County Superior Court (2018) PERB Decision No. 2566-C (PERB 2106SA)
State of California (Department of Personnel Administration) * * * OVERRULED IN PART by Los Angeles County Superior Court (2018) PERB Decision No. 2566-C (PERB 2106SA)
PERB Decision No. 2106SACalperb1 mar 2011
Testo completo
OVERRULED IN PART by Los Angeles County Superior Court (2018) PERB Decision No. 2566-C STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION, Charging Party, V. STATE OF CALIFORNIA (DEPARTMENT OF PERSONNEL ADMINISTRATION), Respondent. Case No. SA-CE-1636-S PERB Decision No. 2106a-S March 1, 2011 Appearances: Carroll, Burdick & McDonough by Gregg McLean Adam and Erick V. Munoz, Attorneys, for California Correctional Peace Officers' Association; Christopher E. Thomas, Labor Relations Counsel, for State of California (Department of Personnel Administration). Before Dowdin Calvillo, Chair; McKeag and Wesley, Members. DECISION WESLEY, Member: This case is before the Public Employment Relations Board (PERB or Board) on appeal by the California Correctional Peace Officers' Association (CCPOA) of a Board agent's dismissal of its unfair practice charge. The charge alleged that the State of California (Department of Personnel Administration) (DPA or State) violated the Ralph C. Dills Act (Dills Act)1 by interfering with and discriminating against union members when it provided enhanced dental benefits at a reduced cost to non-union members.2 CCPOA alleged that this conduct constituted a violation of Dills Act section 3519(a). The Board agent dismissed the charge for failing to state a prima facie case of discrimination or interference. The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. 2 CCPOA withdrew a unilateral change allegation during the investigation of the charge.
The Board reviewed the dismissal and the record in light of CCPOA's appeal, DP A's The Board reviewed the dismissal and the record in light of CCPOA's appeal, DPA's response to the appeal and the relevant law. Based on this review, the Board reverses the response to the appeal and the relevant law. Based on this review, the Board reverses the dismissal of the unfair practice charge. PROCEDURAL HISTORY PROCEDURAL HISTORY CCPOA filed the instant unfair practice charge on December 7, 2007. The charge, as CCPOA filed the instant unfair practice charge on December 7, 2007. The charge, as amended, alleged that the State violated Dills Act section 3519(a) by providing enhanced amended, alleged that the State violated Dills Act section 3519(a) by providing enhanced dental benefits to non-members at a lower cost than that paid by CCPOA members. The Boarddental benefits to non-members at a lower cost than that paid by CCPOA members. The Board agent found that the allegations failed to establish a prima facie case under either a agent found that the allegations failed to establish a prima facie case under either a discrimination or interference theory and dismissed the charge. discrimination or interference theory and dismissed the charge. CCPOA appealed the dismissal to the Board. On April 30, 2010, the Board issued State CCPOA appealed the dismissal to the Board. On April 30, 2010, the Board issued State of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S.of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S. In that decision, the Board affirmed the dismissal of the discrimination allegation but found the In that decision, the Board affirmed the dismissal of the discrimination allegation but found the charge established a prima facie case of interference. The Board remanded the case to the charge established a prima facie case of interference. The Board remanded the case to the Office of the General Counsel for issuance of a complaint on the interference allegation. Office of the General Counsel for issuance of a complaint on the interference allegation. On May 28, 2010, CCPOA filed a petition for writ of mandate in Alameda Superior On May 28, 2010, CCPOA filed a petition for writ of mandate in Alameda Superior Court, seeking to compel PERB to issue a complaint on the discrimination allegation in its Court, seeking to compel PERB to issue a complaint on the discrimination allegation in its charge based on Campbell Municipal Employees Assn. v. City of Campbell (1982) 131charge based on Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell). On September 27, 2010, the superior court granted CCPOA'sCal.App.3d 416 (Campbell). On September 27, 2010, the superior court granted CCPOA's petition and ordered PERB to issue a complaint on the discrimination allegation. As part ofpetition and ordered PERB to issue a complaint on the discrimination allegation. As part of PERB's compliance with that order, the Board hereby vacates State of California (DepartmentPERB's compliance with that order, the Board hereby vacates State of California (Department of Personnel Administration), supra, PERB Decision No. 2106-S and replaces it with thisof Personnel Administration), supra, PERB Decision No. 2106-S and replaces it with this decision. decision. 2 dismissal of the unfair practice charge. 2
BACKGROUND BACKGROUND CCPOA is the exclusive representative of the employees in State Bargaining Unit 6. CCPOA is the exclusive representative of the employees in State Bargaining Unit 6. CCPOA and the State are parties to an expired memorandum of understanding (MOU) with a CCPOA and the State are parties to an expired memorandum of understanding (MOU) with a term of July 1, 2001 through July 2, 2006. For many years, CCPOA and the State agreed thatterm of July 1, 2001 through July 2, 2006. For many years, CCPOA and the State agreed that the CCPOA Benefit Trust Fund would provide certain benefits to Unit 6 members, including the CCPOA Benefit Trust Fund would provide certain benefits to Unit 6 members, including dental and vision benefits.3 Article 13.02 of the MOU required the State "to provide CCPOAdental and vision benefits.' Article 13.02 of the MOU required the State "to provide CCPOA the net sum of $44.33 per month per eligible employee for the duration of this agreement tothe net sum of $44.33 per month per eligible employee for the duration of this agreement to provide a dental benefit through the CCPOA Benefit Trust Fund." provide a dental benefit through the CCPOA Benefit Trust Fund." Prior to expiration of the MOU, CCPOA and the State initiated negotiations for a Prior to expiration of the MOU, CCPOA and the State initiated negotiations for a successor agreement. Negotiations eventually stalled and the parties participated in impassesuccessor agreement. Negotiations eventually stalled and the parties participated in impasse procedures with a mediator. On September 6, 2007, the mediator confirmed that CCPOA hadprocedures with a mediator. On September 6, 2007, the mediator confirmed that CCPOA had withdrawn from mediation. On September 18, 2007, DPA notified CCPOA that the State was withdrawn from mediation. On September 18, 2007, DPA notified CCPOA that the State was implementing its last, best and final offer (LBFO). implementing its last, best and final offer (LBFO). The LBFO "rolled-over" numerous provisions of the expired MOU, including The LBFO "rolled-over" numerous provisions of the expired MOU, including Article 13.02. Pursuant to this article, the State continued to provide funding to CCPOA to Article 13.02. Pursuant to this article, the State continued to provide funding to CCPOA to provide Unit 6 employees with a dental benefit through the Benefit Trust Fund. provide Unit 6 employees with a dental benefit through the Benefit Trust Fund. On October 29, 2007, the Benefit Trust Fund administrator sent a letter to the State On October 29, 2007, the Benefit Trust Fund administrator sent a letter to the State Controller's Office (SCO) requesting that the SCO stop collecting and remitting to the Benefit Controller's Office (SCO) requesting that the SCO stop collecting and remitting to the Benefit Trust Fund the dental and vision benefit contributions from non-union member employees. Trust Fund the dental and vision benefit contributions from non-union member employees. The letter further stated: The letter further stated: 3 The CCPOA Benefit Trust Fund is an independent corporation established by CCPOA The CCPOA Benefit Trust Fund is an independent corporation established by CCPOA and maintained in accordance with the terms of the federal Employee Retirement Incomeand maintained in accordance with the terms of the federal Employee Retirement Income Security Act of 1974 (ERISA). Three trustees are selected by CCPOA members and twoSecurity Act of 1974 (ERISA). Three trustees are selected by CCPOA members and two trustees are appointed by the CCPOA president. In addition, the CCPOA president and thetrustees are appointed by the CCPOA president. In addition, the CCPOA president and the treasurer are ex-officio trustees. The Benefit Trust Fund defines a "Participant" as "a persontreasurer are ex-officio trustees. The Benefit Trust Fund defines a "Participant" as "a person who is or was a member of CCPOA or Bargaining Unit No. 6 or who may become eligible forwho is or was a member of CCPOA or Bargaining Unit No. 6 or who may become eligible for benefits under the Plan or who otherwise qualifies as a participant under ERISA." benefits under the Plan or who otherwise qualifies as a participant under ERISA." 3
As such, it will be the responsibility of the DPA to arrange for As such, it will be the responsibility of the DP A to arrange for
these benefits to be provided to the impacted employees through these benefits to be provided to the impacted employees through
another source. another source.
On October 31, 2007, in a letter to the Department of Corrections and Rehabilitation, On October 31, 2007, in a letter to the Department of Corrections and Rehabilitation,
the Benefit Trust Fund administrator stated: the Benefit Trust Fund administrator stated:
[E]ffective November 1, 2007, the CCPOA Benefit Trust Fund [E]ffective November 1, 2007, the CCPOA Benefit Trust Fund
("Trust Fund") is no longer able to provide former fair share ("Trust Fund") is no longer able to provide former fair share
members with dental and vision benefits through the CCPOA members with dental and vision benefits through the CCPOA
Dental and Vision Plans. Therefore, it is absolutely necessary Dental and Vision Plans. Therefore, it is absolutely necessary
that notice be provided to these individuals immediately to that notice be provided to these individuals immediately to
inform them of this change and advise them to immediately inform them of this change and advise them to immediately
contact their State Personnel Offices to enroll in another State of contact their State Personnel Offices to enroll in another State of
California vision and dental plan. California vision and dental plan.
4
In a letter dated November 5, 2007, DPA notified non-union member employees In a letter dated November 5, 2007, DPA notified non-union member employees
that the Benefit Trust Fund had terminated their dental and vision benefits effective that the Benefit Trust Fund had terminated their dental and vision benefits effective
October 31, 2007. Non-union members were told they would automatically be enrolled in October 31, 2007. Non-union members were told they would automatically be enrolled in
the state-sponsored vision plan. DPA also invited non-union members to enroll in one of the state-sponsored vision plan. DPA also invited non-union members to enroll in one of
several existing state-sponsored dental plans that were offered to other state employees. several existing state-sponsored dental plans that were offered to other state employees.
As a result, while the State's contribution toward a union member's dental benefit remains at As a result, while the State's contribution toward a union member's dental benefit remains at
$44.33 per month, the State's contribution for non-union members can, according to the $44.33 per month, the State's contribution for non-union members can, according to the
charge, be as much as $93.75 per month. After enrolling in a state-sponsored dental plan, charge, be as much as $93. 7 5 per month. After enrolling in a state-sponsored dental plan,
non-union members with two dependents pay $30.94 per month toward their dental benefit non-union members with two dependents pay $30.94 per month toward their dental benefit
premiums, while CCPOA members with two dependents pay a dental premium of $41.80 per premiums, while CCPOA members with two dependents pay a dental premium of $41. 80 per
month. DPA did not offer the lower cost dental plan to union members. month. DPA did not offer the lower cost dental plan to union members.
DISCUSSION DISCUSSION
This case presents an opportunity for the Board to clarify PERB' s interference and This case presents an opportunity for the Board to clarify PERB's interference and
discrimination standards. Before doing so, however, it is instructive to examine the discrimination standards. Before doing so, however, it is instructive to examine theinterference and discrimination standards under the National Labor Relations Act (NLRA), * a interference under 4 and discrimination standards the National Labor Relations Act (NLRA), ass well as California courts' application of those standards in cases arising under the Meyers-well as California courts' application of those standards in cases arising under the Meyers- Milias-Brown Act (MMBA). 5 Milias-Brown Act (MMBA). 1 . 1. Interference and Discrimination Under the NLRA Interference and Discrimination Under the NLRA Section 7 of the NLRA provides, in relevant part: Section 7 of the NLRA provides, in relevant part: Employees shall have the right to self-organization, to form, join, Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or concerted activities for the purpose of collective bargaining or other mutual aid or protection. other mutual aid or protection. Under section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer Under section 8(a)(l) of the NLRA, it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in"to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7]." To establish interference, the NLRB's general counsel must prove that: section [7]." To establish interference, the NLRB's general counsel must prove that: (1) employees engaged in protected activity; (2) the employer's conduct tends to interfere with, (1) employees engaged in protected activity; (2) the employer's conduct tends to interfere with, restrain, or coerce employees in the exercise of those activities; and (3) the employer's conduct restrain, or coerce employees in the exercise of those activities; and (3) the employer's conduct \,Vas not justified by legitimate business reasons. (Fun Striders, Inc. v. NLRB (9th Cir. 1981)was not justified by legitimate business reasons. (Fun Striders, Inc. v. NLRB (9th Cir. 1981) 686 F.2d 659, 661-662.) The general counsel need not prove that the employer acted with686 F.2d 659, 661-662.) The general counsel need not prove that the employer acted with unlawful intent or motive. (American Freightways Co. (1959) 124 NLRB 146, 147.) unlawful intent or motive. (American Freightways Co. (1959) 124 NLRB 146, 147.) Under NLRA section 8(a)(3), it is an unfair labor practice for an employer "byUnder NLRA section 8(a)(3), it is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." The n1ajority employment to encourage or discourage membership in any labor organization." The majority 4 The NLRA is codified at 29 U.S.C. section 151 et seq. Although it is not bound byThe NLRA is codified at 29 U.S.C. section 151 et seq. Although it is not bound by decisions of the National Labor Relations Board (NLRB), the Board will take cognizance ofdecisions of the National Labor Relations Board (NLRB), the Board will take cognizance of NLRB precedent, where appropriate, as an aid in interpreting identical or analogous provisionsNLRB precedent, where appropriate, as an aid in interpreting identical or analogous provisions in the statutes PERB administers. (Carlsbad Unified School District (1979) PERBin the statutes PERB administers. (Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).) No. 89 (Carlsbad).) 5 The MMBA is codified at Section 3500 et seq. Although PERB must follow 5 The MMBA is codified at Section 3500 et seq. Although PERB must follow judicial interpretations of the MMBA in unfair practice cases arising under that statute judicial interpretations of the MMBA in unfair practice cases arising under that statute (MMBA, § 3509, subd. (b )), it is not bound by those interpretations in cases arising under the(MMBA, $ 3509, subd. (b)), it is not bound by those interpretations in cases arising under the other statutes it administers, including the Dills Act. other statutes it administers, including the Dills Act. 5
of section 8(a)(3) cases are decided under the framework set out by the NLRB in Wright Line of section 8(a)(3) cases are decided under the framework set out by the NLRB in Wright Line (1980) 251 NLRB 1083 (Wright Line). The object of the Wright Line analysis is to determine(1980) 251 NLRB 1083 (Wright Line). The object of the Wright Line analysis is to determine whether the employer took an adverse action against an employee because of the employee'swhether the employer took an adverse action against an employee because of the employee's protected activity. (Id. at p. 1089.) To establish a prima facie case of discrimination underprotected activity. (Id. at p. 1089.) To establish a prima facie case of discrimination under Wright Line, the general counsel must prove that the employee's protected activity was a Wright Line, the general counsel must prove that the employee's protected activity was a motivating factor in the employer's decision to take the adverse action. (Ibid.) Once a primamotivating factor in the employer's decision to take the adverse action. (Ibid.) Once a prima facie case is established, the employer bears the burden of demonstrating that it would havefacie case is established, the employer bears the burden of demonstrating that it would have taken the same action in the absence of the employee's protected activity. (Ibid.) Thus, undertaken the same action in the absence of the employee's protected activity. (Ibid.) Thus, under the Wright Line discrimination standard, the general counsel must prove that the employer the Wright Line discrimination standard, the general counsel must prove that the employer acted with unlawful intent or motive. (NLRB v. Transportation Management Corp. (1983)acted with unlawful intent or motive. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 401.) 462 U.S. 393, 401.) Not all section 8(a)(3) cases, however, require the general counsel to establish the Not all section 8(a)(3) cases, however, require the general counsel to establish the employer's unlawful motive. In NLRB v. Great Dane Trailers (1967) 388 U.S. 26 (Greatemployer's unlawful motive. In NLRB v. Great Dane Trailers (1967) 388 U.S. 26 (Great Dane), the U.S. Supreme Court set out a two-part standard for determining discrimination in Dane), the U.S. Supreme Court set out a two-part standard for determining discrimination in violation of section 8(a)(3): violation of section 8(a)(3): First, if it can reasonably be concluded that the employer's First, if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important discriminatory conduct was "inherently destructive' of important employee rights, no proof of an anti union motivation is needed employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is 'comparatively discriminatory conduct on employee rights is ' comparatively slight,' an antiunion motivation must be proved to sustain the slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible legitimate objectives since proof of motivation is most accessible to him. to him. (Id. at p. 34; emphasis in original.) (Id. at p. 34; emphasis in original.) 6 6
The Court did not require the general counsel to establish the employer's unlawful The Court did not require the general counsel to establish the employer's unlawful motive in "inherently destructive" conduct cases, finding that such conduct in itself motive in "inherently destructive" conduct cases, finding that such conduct in itself demonstrates the employer's unlawful motive. (Great Dane.) In a subsequent decision, the demonstrates the employer's unlawful motive. (Great Dane.) In a subsequent decision, the Court emphasized that, even in "inherently destructive" conduct cases, the NLRB must weigh Court emphasized that, even in "inherently destructive" conduct cases, the NLRB must weigh the effect of the employer's conduct on employee rights against the employer's business the effect of the employer's conduct on employee rights against the employer's business justifications to determine whether an unfair labor practice has been committed. (Metropolitan justifications to determine whether an unfair labor practice has been committed. (Metropolitan Edison Edison Co. v. NLRB (1983) 460 U.S. 693, 703.) Co. v. NLRB (1983) 460 U.S. 693, 703.) 7 The Great Dane discrimination standard applies when the employer has treated groups The Great Dane discrimination standard applies when the employer has treated groups of employees differently based on their participation in protected activity. (National of employees differently based on their participation in protected activity. (National Fabricators v. NLRB (5th Cir. 1990) 903 F.2d 396 [employer selected for layoff those Fabricators v. NLRB (5th Cir. 1990) 903 F.2d 396 [employer selected for layoff those employees likely to engage in picketing]; Northeast Constructors (1972) 198 NLRB 846 employees likely to engage in picketing]; Northeast Constructors (1972) 198 NLRB 846 [employer refused to rehire laid off employees who had previously served as union stewards].) [employer refused to rehire laid off employees who had previously served as union stewards].) However, because the Great Dane standard is nearly identical to the NLRB's interference However, because the Great Dane standard is nearly identical to the NLRB's interference standard, it is difficult to discern what circumstances trigger the application of one standard or standard, it is difficult to discern what circumstances trigger the application of one standard or the other. Often the NLRB applies the Great Dane standard to both 8(a)(3) and 8(a)(1) the other. Often the NLRB applies the Great Dane standard to both 8(a)(3) and 8(a)(l) allegations based on the same facts. (E.g., Peerless Pump Co. (2005) 345 NLRB 371; HB.allegations based on the same facts. (E.g., Peerless Pump Co. (2005) 345 NLRB 371; H. B. Zachry Co. (1995) 319 NLRB 967.) On the other hand, the NLRB has used the Great Dane Zachry Co. (1995) 319 NLRB 967.) On the other hand, the NLRB has used the Great Dane standard to find 8(a)(l) violations in cases where the conduct at issue was not alleged to also standard to find 8(a)(1) violations in cases where the conduct at issue was not alleged to also violate section 8(a)(3). (E.g., Mainline Contracting Corp. (2001) 334 NLRB 922; Matador violate section 8(a)(3). (E.g., Mainline Contracting Corp. (2001) 334 NLRB 922; Matador Lines, Lines, Inc. (1997) 323 NLRB 189.) In both types of cases, the same result would have Inc. (1997) 323 NLRB 189.) In both types of cases, the same result would have occurred had the NLRB simply applied its interference standard. Thus, the Great Dane occurred had the NLRB simply applied its interference standard. Thus, the Great Dane discrimination standard and the standard appear to be interchangeable practice. discrimination standard and the interference standard appear to be interchangeable in practice. 7
2. 2. Interference and Discrimination Under the MMBA Interference and Discrimination Under the MMBA MMBA section 3502 provides that "public employees shall have the right to form, join, MMBA section 3502 provides that "public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for theand participate in the activities of employee organizations of their own choosing for the purpose ofrepresentation on all matters of employer-employee relations." Section 3506 makespurpose of representation on all matters of employer-employee relations." Section 3506 makes it unlawful for public agencies and employee organizations to "interfere with, intimidate, it unlawful for public agencies and employee organizations to "interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of theirrestrain, coerce or discriminate against public employees because of their exercise of their rights under Section 3502." rights under Section 3502." Only a handful of court decisions have addressed discrimination and interference under Only a handful of court decisions have addressed discrimination and interference under Officers Assn. v. City of MMBA section 3506. In the earliest of these, San Leandro Police Officers Assn. v. City of MMBA section 3506. In the earliest of these, San Leandro Police San Leandro (1976) 55 Cal.App.3d 553 (San Leandro), the city created a deferredSan Leandro (1976) 55 Cal.App.3d 553 (San Leandro), the city created a deferred compensation plan that would give a benefit equal to three percent of base salary to all compensation plan that would give a benefit equal to three percent of base salary to all management employees except those who were members of the police and firefighters unions. management employees except those who were members of the police and firefighters unions. treatment constituted discrimination and (Id. at p. 556.) The court held this differential treatment constituted discrimination and (Id. at p. 556.) The court held this differential interference in violation of Section 3506. (Id. at p. 558.) The court reached this conclusion interference in violation of Section 3506. (Id. at p. 558.) The court reached this conclusion with minimal analysis and no citations to authority other than the statute. (Id. at pp. 557-558.)with minimal analysis and no citations to authority other than the statute. (Id. at pp. 557-558.) In Campbell, the association and the city agreed during bargaining that all negotiatedIn Campbell, the association and the city agreed during bargaining that all negotiated increases in salary and medical insurance premium contributions would be paid retroactive to increases in salary and medical insurance premium contributions would be paid retroactive to October 1, 1978, the same retroactive date agreed upon by all other city employee unions. October 1, 1978, the same retroactive date agreed upon by all other city employee unions. (Id. at p. 419.) The association and the city reached impasse over two other issues. (Ibid.) In (Id. at p. 419.) The association and the city reached impasse over two other issues. (Ibid.) In the final step of the mandated impasse procedures, the city council ruled in favor of the city onthe final step of the mandated impasse procedures, the city council ruled in favor of the city on the two disputed issues; it also made the increases retroactive to February 1, 1979 instead of the two disputed issues; it also made the increases retroactive to February 1, 1979 instead of October 1, 1978. (Id. at p. 420.) As a result, employees represented by the October 1, 1978. (Id. at p. 420.) As a result, employees represented by the association received three fewer months of the salary and premium contribution increases than other received three fewer months of the salary and premium contribution increases than other represented city employees. represented city employees. 8 8
Looking to federal precedent, the court adopted and applied the Great Dane standard.Looking to federal precedent, the court adopted and applied the Great Dane standard. (Id. at pp. 423-424.) Like the U.S. Supreme Court in Great Dane, the court of appeal (Id. at pp. 423-424.) Like the U.S. Supreme Court in Great Dane, the court of appeal concluded that it need not determine the level of harm to employee rights because the cityconcluded that it need not determine the level of harm to employee rights because the city offered no justification for its conduct other than to reward those unions that did not utilize the offered no justification for its conduct other than to reward those unions that did not utilize the impasse procedures. (Id. at p. 424.) The court thus held, citing San Leandro, that the cityimpasse procedures. (Id. at p. 424.) The court thus held, citing San Leandro, that the city discriminated against employees represented by the association in violation of Section 3506.discriminated against employees represented by the association in violation of Section 3506. (Ibid.) In so holding, the court did not make a finding that the city's actions were unlawfully (Ibid.) In so holding, the court did not make a finding that the city's actions were unlawfully motivated. motivated. Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683 (Los Angeles County), involved similar facts. The county reached a tentative agreement 683 (Los Angeles County), involved similar facts. The county reached a tentative agreement on health insurance contributions with a coalition of unions representing its employees. (Id. at on health insurance contributions with a coalition of unions representing its employees. (Id. at p. 685.) The county board of supervisors then passed an ordinance approving the increase only p. 685.) The county board of supervisors then passed an ordinance approving the increase only for those unions that had reached agreement with the county in wage negotiations. (Ibid.) The for those unions that had reached agreement with the county in wage negotiations. (Ibid.) The court, relying on Campbell and San Leandro, held that the differential treatment constitutedcourt, relying on Campbell and San Leandro, held that the differential treatment constituted discrimination prohibited by Section 3506 because the purpose of the ordinance was to rewarddiscrimination prohibited by Section 3506 because the purpose of the ordinance was to reward those unions that had reached agreement with the county on wages. (Id. at pp. 688-689.) As inthose unions that had reached agreement with the county on wages. (Id. at pp. 688-689.) As in Campbell, the court did not find that the county's actions were unlawfully motivated. Campbell, the court did not find that the county's actions were unlawfully motivated. Public Employees Association of Tulare County, Inc. v. Board of Supervisors of TularePublic Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797 (Tulare County), is the only published case to address County (1985) 167 Cal.App.3d 797 (Tulare County), is the only published case to address interference under Section 3506. In that case, the employer proposed to pay the fuU amount ofinterference under Section 3506. In that case, the employer proposed to pay the full amount of a lump sum salary payment if the parties reached agreement on a successor MOU by a certain a lump sum salary payment if the parties reached agreement on a successor MOU by a certain date. (Id. at p. 802.) the of applicable impasse procedures, ofdate. (Id. at p. 802.) At the conclusion of the applicable impasse procedures, the board of supervisors adopted the county's last offer, but reduced the amount of the lump sum paymentsupervisors adopted the county's last offer, but reduced the amount of the lump sum payment 9 9
to reflect the two pay periods that had passed since the proposed agreement date. (Id. atto reflect the two pay periods that had passed since the proposed agreement date. (Id. at p. 803.) Applying a standard identical to the NLRB's 8(a)(l) interference test,6 the court heldp. 803.) Applying a standard identical to the NLRB's 8(a)(1) interference test, the court held that the county's reduction of the lump sum payment did not interfere with the union's right tothat the county's reduction of the lump sum payment did not interfere with the union's right to invoke and participate in the impasse procedures. (Id. at pp. 806-807.) invoke and participate in the impasse procedures. (Id. at pp. 806-807.) It is clear from the above cases that the courts have applied the nearly identical 8(a)(3) It is clear from the above cases that the courts have applied the nearly identical 8(a)(3) Great Dane discrimination standard and 8(a)(l) interference standard under the MMBA. Great Dane discrimination standard and 8(a)(1) interference standard under the MMBA. Indeed, even though the courts in San Leandro, Campbell, and Los Angeles County labeled the Indeed, even though the courts in San Leandro, Campbell, and Los Angeles County labeled the employer's unlawful conduct "discrimination," each analyzed the conduct under a test identical employer's unlawful conduct "discrimination," each analyzed the conduct under a test identical to the interference standard, i.e., whether the employer's conduct harmed or impeded employee to the interference standard, i.e., whether the employer's conduct harmed or impeded employee rights and was not justified by reasons that outweighed the harm. Thus, the interference and rights and was not justified by reasons that outweighed the harm. Thus, the interference and discrimination standards under the MMBA mirror those under the NLRA. discrimination standards under the MMBA mirror those under the NLRA.7 33. PERB's Interference and Discrimination Standards PERB's Interference and Discrimination Standards In its early decisions, PERB also looked to NLRB precedent for guidance in In its early decisions, PERB also looked to NLRB precedent for guidance in formulating a standard for interference and discrimination under section 3543.S(a) of the formulating a standard for interference and discrimination under section 3543.5(a) of the The court formulated the following standard: The court formulated the following standard: Ali [a charging party] must prove to establish an interference All [a charging party] must prove to establish an interference violation of section 3506 is: (1) That employees were engaged in violation of section 3506 is: (1) That employees were engaged in protected activity; (2) that the employer engaged in conduct protected activity; (2) that the employer engaged in conduct which tends to interfere with, restrain or coerce employees in the which tends to interfere with, restrain or coerce employees in the exercise of those activities, and (3) [the] employer's conduct was exercise of those activities, and (3) [the] employer's conduct was not justified by legitimate business reasons. not justified by legitimate business reasons. (Tulare County, supra, at p. 807.) (Tulare County, supra, at p. 807.) 7 In Santa Clara County Counsel Attorneys Association v. Woodside (1994) 7 Cal.4th In Santa Clara County Counsel Attorneys Association v. Woodside (1994) 7 Cal.4th 525 (Woodside), the California Supreme Court suggested that the Wright Line 8(a)(3) 525 (Woodside), the California Supreme Court suggested that the Wright Line 8(a)(3) discrimination standard would apply to an alleged violation of Section 3506 in a case where andiscrimination standard would apply to an alleged violation of Section 3506 in a case where an employee was discharged or disciplined for engaging in activity protected by the MMBA.employee was discharged or disciplined for engaging in activity protected by the MMBA. (Woodside, supra, at pp. 556-557.) (Woodside, supra, at pp. 556-557.) 10
Educational Employment Relations Act (EERA).8 (San Dieguito Union High School District Educational Employment Relations Act (EERA). (San Diegueto Union High School District (1977) EERB9 Decision No. 22; Carlsbad.) In Carlsbad, the Board observed that, unlike the(1977) EERB' Decision No. 22; Carlsbad.) In Carlsbad, the Board observed that, unlike the NLRA, EERA's prohibitions on interference and discrimination are contained in the same NLRA, EERA's prohibitions on interference and discrimination are contained in the same subsection of the statute. Accordingly, the Board laid out a single standard to establish a subsection of the statute. Accordingly, the Board laid out a single standard to establish a violation of EERA section 3543.5(a): violation of EERA section 3543.5(a): 11 establishes that employer's 2. 2. Where the charging party establishes that the employer's Where the charging party the conduct tends to or does result in some harm to employee rights conduct tends to or does result in some harm to employee rights granted under the EERA, a prima facie case shall be deemed to granted under the EERA, a prima facie case shall be deemed to exist; exist; 3. 3. Where the harm to the employees' rights is slight, and the Where the harm to the employees' rights is slight, and the employer offers justification based on operational necessity, the employer offers justification based on operational necessity, the the competing interest of the employer and the rights of the competing interest of the employer and rights of the employees will be balanced and the charge resolved accordingly;employees will be balanced and the charge resolved accordingly; 4. 4. Where the harm is inherently destructive of employee rights, Where the harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond the employer's control and occasioned by circumstances beyond the employer's control and that no alternative course of action was available; that no alternative course of action was available; 5. 5. Irrespective of the foregoing, a charge will be sustained where Irrespective of the foregoing, a charge will be sustained where it is shown that the employer would not have engaged in the it is shown that the employer would not have engaged in the complained-of conduct but for an unlawful motivation, purpose complained-of conduct but for an unlawful motivation, purpose or intent. or intent. This standard incorporates the "inherently destructive"/"comparatively slight" framework from This standard incorporates the "inherently destructive"/"comparatively slight" framework from Great Dane, along with elements of the NLRA section 8(a)(l) interference standard. Great Dane, along with elements of the NLRA section 8(a)(1) interference standard. 8 EERA is codified at Section 3540 et seq. EERA section 3543.5(a) states, in relevant EERA is codified at Section 3540 et seq. EERA section 3543.5(a) states, in relevant part, that: part, that: It is unlawful for a public school employer to . . . It is unlawful for a public school employer to ... (a) Impose or threaten to impose reprisals on employees, to (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. of their exercise of rights guaranteed by this chapter. 9 Prior to January 1, 1978, PERB was known as the Educational Employment Relations9 Prior to January 1, 1978, PERB was known as the Educational Employment Relations Board (EERB). Board (EERB). 11
In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the BoardIn Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board separated the discrimination and interference standards by adopting the NLRB' s Wright Lineseparated the discrimination and interference standards by adopting the NLRB's Wright Line standard for cases "where it is alleged that the school employer has taken reprisals againststandard for cases "where it is alleged that the school employer has taken reprisals against employees for participation in protected activity." In such cases, the charging party canemployees for participation in protected activity." In such cases, the charging party can establish a prima facie case by showing: (1) the employee exercised protected rights; (2) the establish a prima facie case by showing: (1) the employee exercised protected rights; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse actionemployer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of thoseagainst the employee; and (4) the employer took the action because of the exercise of those rights. (Ibid.) Once a prima facie case is established, the employer bears the burden of provingrights. (Ibid.) Once a prima facie case is established, the employer bears the burden of proving that it would have taken the adverse action even if the employee had not engaged in protected that it would have taken the adverse action even if the employee had not engaged in protected activity. (Ibid.) activity. (Ibid.) In Novato, the Board also affirmed that the Carlsbad standard would still apply in cases In Novato, the Board also affirmed that the Carlsbad standard would still apply in cases alleging interference with employee rights. Though it has formulated the test slightlyalleging interference with employee rights. Though it has formulated the test slightly differently over the years, the Board continues to apply the Carlsbad standard in interference differently over the years, the Board continues to apply the Carlsbad standard in interference cases, including those arising under the Dills Act. (E.g., State of California (Employmentcases, including those arising under the Dills Act. (E.g., State of California (Employment Development Department) (1999) PERB Decision No. 1365-S; State of CaliforniaDevelopment Department) (1999) PERB Decision No. 1365-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S; State of California Department of Corrections) (1995) PERB Decision No. 1100-S; State of California (Departments of Personnel Administration, Developmental Services, and Mental Health)Departments of Personnel Administration, Developmental Services, and Mental Health) (1986) PERB Decision No. 601-S.) (1986) PERB Decision No. 601-S.) 12 Although Carlsbad and Campbell both adopted the Great Dane framework, the Although Carlsbad and Campbell both adopted the Great Dane framework, the Campbell court's use of the term "discrimination" rather than "interference" has led to someCampbell court's use of the term "discrimination" rather than "interference" has led to some confusion over the years. In some of its early decisions under the MMBA, PERB stated thatconfusion over the years. In some of its early decisions under the MMBA, PERB stated that harm to employee rights the Campbell standard could be used to establish adverse harm to employee rights under the Campbell standard could be used to establish adverse action in reprisal cases under Novato. (County of Santa Cruz (2006) PERB Decision No. 1849-M;in reprisal cases under Novato. (County of Santa Cruz (2006) PERB Decision No. 1849-M; 12
City & County of San Francisco (2004) PERB Decision No. 1664-M.) In City of San DiegoCity & County of San Francisco (2004) PERB Decision No. 1664-M.) In City of San Diego (2005) PERB Decision No. 1738-M (San Diego), the Board addressed whether Campbell or (2005) PERB Decision No. 1738-M (San Diego), the Board addressed whether Campbell or Palo Verde Unified School District (1988) PERB Decision No. 689 (Palo Verde) 10 was thePalo Verde Unified School District (1988) PERB Decision No. 689 (Palo Verde) was the appropriate test for establishing adverse action under the Novato standard. In San Diego, theappropriate test for establishing adverse action under the Novato standard. In San Diego, the charging party was denied access to dental and vision benefits under a negotiated flexible charging party was denied access to dental and vision benefits under a negotiated flexible benefits plan because she was neither a union member nor an agency fee payer. The Board benefits plan because she was neither a union member nor an agency fee payer. The Board held that "there is an adverse action when an employee is denied a benefit based on whether or held that "there is an adverse action when an employee is denied a benefit based on whether or not he or she is a union member just as in Campbell." (Ibid.) not he or she is a union member just as in Campbell." (Ibid.) 13 We disagree with the Board's application of Campbell in San Diego. Instead of using We disagree with the Board's application of Campbell in San Diego. Instead of using Campbell to establish adverse action under the Novato standard, the Board should have Campbell to establish adverse action under the Novato standard, the Board should have analyzed the facts under the standard set out in Campbell itself, i.e., whether the denial ofanalyzed the facts under the standard set out in Campbell itself, i.e., whether the denial of benefits could have harmed employee rights to some extent and whether the employer's and benefits could have harmed employee rights to some extent and whether the employer's and union's justification for the denial outweighed that harm. Accordingly, we overrule that union's justification for the denial outweighed that harm. Accordingly, we overrule that portion of San Diego which applied the Novato standard to find discrimination. 11 In so doing,portion of San Diego which applied the Novato standard to find discrimination." In so doing, we also hold that Palo Verde, not Campbell, sets forth the proper test for determining whetherwe also hold that Palo Verde, not Campbell, sets forth the proper test for determining whether an employer's action is adverse under the Novato standard. an employer's action is adverse under the Novato standard. "P on alo Verde requires an objective showing of an adverse effect on the employee's Palo Verde requires an objective showing of an adverse effect the employee's employment. In a later decision, the Board further explained that: employment. In a later decision, the Board further explained that: The test which must be satisfied is not whether the employee The test which must be satisfied is not whether the employee found the employer's action to be adverse, but whether a found the employer's action to be adverse, but whether a reasonable person under the same circumstances would consider reasonable person under the same circumstances would consider the action to have an adverse impact on the employee's the action to have an adverse impact on the employee 's employment. employment. (Newark Unified School District (1991) PERB Decision No. 864; emphasis added; (Newark Unified School District (1991) Decision No. 864; emphasis added; fn. omitted.) fn. omitted.) 11 We note, however, that the Board also found the union and the city interfered with We note, however, that the Board also found the union and the city interfered with the charging party's rights under the standard set out in Tulare County, which is nearly the charging party's rights under the standard set out in Tulare County, which is nearly identical to the NLRB's 8(a)(l) interference standard and consistent with PERB's Carlsbad identical to the NLRB's 8(a)(1) interference standard and consistent with PERB's Carlsbad interference standard. interference standard. 13
In light of the above discussion, we clarify that under applicable case law there are In light of the above discussion, we clarify that under applicable case law there are three standards for establishing a violation of the provisions of PERB-administered statutes, three standards for establishing a violation of the provisions of PERB-administered statutes, such as Dills Act section 3519(a), that make it unlawful for an employer to "[i]mpose or such as Dills Act section 3519(a), that make it unlawful for an employer to "[ijmpose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by" the statute: exercise of rights guaranteed by" the statute: 1 As noted, the Tulare County standard, which applies in interference cases under the 12 As noted, the Tulare County standard, which applies in interference cases under the MMBA, is consistent with the Carlsbad interference standard. MMBA, is consistent with the Carlsbad interference standard. 14 1 . 1. The Novato discrimination/retaliation standard applies in cases where an The Novato discrimination/retaliation standard applies in cases where an employer is alleged to have taken an adverse action against an individual employee because of employer is alleged to have taken an adverse action against an individual employee because of the employee's participation in protected activity. Once the charging party establishes that the the employee's participation in protected activity. Once the charging party establishes that the employer's action was motivated at least in part by the employee's protected activity, the employer's action was motivated at least in part by the employee's protected activity, the burden shifts to the employer to prove that it would have taken the action even if the employee burden shifts to the employer to prove that it would have taken the action even if the employee had not engaged in protected activity. had not engaged in protected activity. 2. 2. The Carlsbad interference standard applies in cases where an employer is The Carlsbad interference standard applies in cases where an employer is alleged to have interfered with the rights of employees, or restrained or coerced employees in alleged to have interfered with the rights of employees, or restrained or coerced employees in their exercise of their rights. To establish a prima facie case, the charging party must their exercise of their rights. To establish a prima facie case, the charging party must demonstrate that the employer's conduct tends to or does result in harm to employee rights. demonstrate that the employer's conduct tends to or does result in harm to employee rights. Once a prima facie case is established, the burden shifts to the employer to justify its conduct. Once a prima facie case is established, the burden shifts to the employer to justify its conduct. If the harm to employees' rights is slight, and the employer offers justification based on If the harm to employees' rights is slight, and the employer offers justification based on operational necessity, the competing interest of the employer and the rights of the employees operational necessity, the competing interest of the employer and the rights of the employees will be balanced to determine if the employer's conduct constitutes an unfair practice. If the will be balanced to determine if the employer's conduct constitutes an unfair practice. If the harm is inherently destructive of employee rights, the employer's conduct will be excused only harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond the employer's and noon proof that it was occasioned by circumstances beyond the employer's control and that no alternative course of action was available. 12 alternative course of action was available. 14
3. 3. The Campbell discrimination standard applies in cases where an employer is The Campbell discrimination standard applies in cases where an employer is alleged to have discriminated between two groups of employees because one of the groups alleged to have discriminated between two groups of employees because one of the groups participated in protected activity. To establish a prima facie case under this standard, theparticipated in protected activity. To establish a prima facie case under this standard, the charging party must show that the employer engaged in conduct which could have harmedcharging party must show that the employer engaged in conduct which could have harmed employee rights to some extent. Once a prima facie case is established, the burden shifts to the employee rights to some extent. Once a prima facie case is established, the burden shifts to the employer to justify its conduct. If the harm to employees' rights is slight, and the employeremployer to justify its conduct. If the harm to employees' rights is slight, and the employer offers justification based on operational necessity, the competing interest of the employer andoffers justification based on operational necessity, the competing interest of the employer and the rights of the employees will be balanced to determine if the employer's conduct constitutes the rights of the employees will be balanced to determine if the employer's conduct constitutes an unfair practice. If the harm is inherently destructive of employee rights, the employer's an unfair practice. If the harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond theconduct will be excused only on proof that it was occasioned by circumstances beyond the employer's control and that no alternative course of action was available. employer's control and that no alternative course of action was available. We acknowledge that the Carlsbad and Campbell standards are nearly identical andWe acknowledge that the Carlsbad and Campbell standards are nearly identical and will in most cases lead to the same result. Nonetheless, at this time Campbell is still valid and will in most cases lead to the same result. Nonetheless, at this time Campbell is still valid and PERB is bound to follow it in cases arising under the MMBA. (MMBA, § 3509, subd. (b).) PERB is bound to follow it in cases arising under the MMBA. (MMBA, $ 3509, subd. (b).) We caution, however, that the Campbell discrimination standard, which mirrors the CarlsbadWe caution, however, that the Campbell discrimination standard, which mirrors the Carlsbad interference standard, is not to be confused with the Novato discrimination standard, which is interference standard, is not to be confused with the Novato discrimination standard, which is actually a test for retaliation. actually a test for retaliation. 4. 4. Application of PERB's Standards to CCPOA's Allegations Application of PERB's Standards to CCPOA's Allegations The charge did not allege that the State took adverse action against an individual The charge did not allege that the State took adverse action against an individual employee because of the employee's participation in protected activity. Therefore, the Novatoemployee because of the employee's participation in protected activity. Therefore, the Novato discrimination/retaliation standard does not apply in this case. Nonetheless, the charge allegeddiscrimination/retaliation standard does not apply in this case. Nonetheless, the charge alleged conduct that falls under the other two standards listed above. conduct that falls under the other two standards listed above. 15 15
a. a. Carlsbad Interference Carlsbad Interference CCPOA contends that the State interfered \Vith union members' rights because non- CCPOA contends that the State interfered with union members' rights because non- union members were able to obtain enhanced dental benefits at a slightly lower cost than union union members were able to obtain enhanced dental benefits at a slightly lower cost than union members. To establish a prima facie case of unlawful interference under the Dills Act, a members. To establish a prima facie case of unlawful interference under the Dills Act, a charging party must establish that the employer's conduct tends to or does result in some harm charging party must establish that the employer's conduct tends to or does result in some harm to employee rights granted under the statute. (Carlsbad; State of California (Department ofto employee rights granted under the statute. (Carlsbad; State of California (Department of Developmental Services) (1983) PERB Decision No. 344-S.) In Clovis Unified School District Developmental Services) (1983) PERB Decision No. 344-S.) In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a finding of coercion does not require (1984) PERB Decision No. 389, the Board held that a finding of coercion does not require evidence that the employee actually felt threatened or intimidated or was in fact discouraged evidence that the employee actually felt threatened or intimidated or was in fact discouraged from participating in protected activity. Once a prima facie case of interference is established,from participating in protected activity. Once a prima facie case of interference is established, the burden shifts to the employer to justify its conduct due to operational necessity if the harmthe burden shifts to the employer to justify its conduct due to operational necessity if the harm is slight, or where the harm is inherently destructive of employee rights, to show that its is slight, or where the harm is inherently destructive of employee rights, to show that its conduct should be excused because of circumstances beyond the employer's control. conduct should be excused because of circumstances beyond the employer's control. (Carlsbad.) (Carlsbad.) the On October 31, 2007, the CCPOA Benefit Trust Fund notified the State that it would On October 31, 2007, the CCPOA Benefit Trust Fund notified State that it would stop providing dental benefits to non-union members effective November 1, 2007. The Benefitstop providing dental benefits to non-union members effective November 1, 2007. The Benefit Trust Fund advised the State to inform non-union members to enroll in another state dental Trust Fund advised the State to inform non-union members to enroll in another state dental state- benefit plan. DPA quickly notified non-union members of their option to enroll in the state- benefit plan. DP A quickly notified non-union members of their option to enroll in the sponsored dental plans. The option to enroll in state-sponsored dental plans was not offered tosponsored dental plans. The option to enroll in state-sponsored dental plans was not offered to union members. union members. According to CCPOA, the State has provided enhanced dental benefits to non-unionAccording to CCPOA, the State has provided enhanced dental benefits to non-union members because the amount of the State's contribution for the state-sponsored dental plan is members because the amount of the State's contribution for the state-sponsored dental plan is larger than the State's contribution toward the CCPOA dental plan. This claim fails, however,larger than the State's contribution toward the CCPOA dental plan. This claim fails, however, because there are no facts to show that the state-sponsored dental plan provides greater because there are no facts to show that the state-sponsored dental plan provides greater 16 16
benefits. The mere fact that the State pays more for the state-sponsored plan does notbenefits. The mere fact that the State pays more for the state-sponsored plan does not demonstrate that the State plan provides enhanced benefits over the CCPOA dental plan. demonstrate that the State plan provides enhanced benefits over the CCPOA dental plan. CCPOA union member employees exercised rights protected by the Dills Act when CCPOA union member employees exercised rights protected by the Dills Act when they chose to become members of the union. CCPOA has not alleged that the difference in they chose to become members of the union. CCPOA has not alleged that the difference in dental benefit costs for union and non-union members resulted in actual harm to the rights of dental benefit costs for union and non-union members resulted in actual harm to the rights of union members. There is no evidence that any union member employees opted to resign theirunion members. There is no evidence that any union member employees opted to resign their union membership in order to obtain dental benefits at a reduced cost, or that any non-union union membership in order to obtain dental benefits at a reduced cost, or that any non-union employees declined membership because of the benefit cost. Nor did CCPOA allege that anyemployees declined membership because of the benefit cost. Nor did CCPOA allege that any union member requested to switch to the state-sponsored plan and was denied. Thus, there is union member requested to switch to the state-sponsored plan and was denied. Thus, there is no evidence of actual harm to employee rights. no evidence of actual harm to employee rights. However, providing benefits at a lower cost to non-union members, while excludingHowever, providing benefits at a lower cost to non-union members, while excluding union members from this option, tends to result in at least slight harm to employees who union members from this option, tends to result in at least slight harm to employees who choose to exercise the right to join a union. A reduced benefit cost available only to non-union choose to exercise the right to join a union. A reduced benefit cost available only to non-union members may influence an employee's decision to join the union. Accordingly, the chargemembers may influence an employee's decision to join the union. Accordingly, the charge states a prima facie case of interference under the Carlsbad standard. states a prima facie case of interference under the Carlsbad standard. b . b. Campbell Discrimination Campbell Discrimination CCPOA also alleges the State discriminated against union members by providing lower CCPOA also alleges the State discriminated against union members by providing lower cost dental benefits to non-union members. To establish a prima facie case of discrimination cost dental benefits to non-union members. To establish a prima facie case of discrimination under Campbell, the charging party must show that the employer engaged in conduct whichunder Campbell, the charging party must show that the employer engaged in conduct which could have harmed employee rights to some extent. Once a prima facie case is established, thecould have harmed employee rights to some extent. Once a prima facie case is established, the burden shifts to the employer to justify its conduct. If the harm to employees' rights is slight, burden shifts to the employer to justify its conduct. If the harm to employees' rights is slight, and the employer offers justification based on operational necessity, competingand the employer offers justification based on operational necessity, the competing interest of the employer and the rights of the employees will be balanced to determine if the employer's the employer and the rights of the employees will be balanced to determine if the employer's 17 17
conduct constitutes an unfair practice. If the harm is inherently destructive of employee rights, conduct constitutes an unfair practice. If the harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was occasioned by circumstances the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond the employer's control and that no alternative course of action was available. beyond the employer's control and that no alternative course of action was available. For the reasons discussed above, under the Campbell standard we find that the State'sFor the reasons discussed above, under the Campbell standard we find that the State's provision of dental benefits at a lower cost to non-union members while excluding unionprovision of dental benefits at a lower cost to non-union members while excluding union members from the same benefit plan could harm employee rights because it may influence members from the same benefit plan could harm employee rights because it may influence employees to decline to join or to resign from CCPOA to obtain the lower cost benefit.employees to decline to join or to resign from CCPOA to obtain the lower cost benefit. Accordingly, the charge states a prima facie case of discrimination under the CampbellAccordingly, the charge states a prima facie case of discrimination under the Campbell standard. standard. At this stage of the charge review, the Board decides only whether the factual At this stage of the charge review, the Board decides only whether the factual allegations state a prima facie case. Having found a prima facie case of interference under the allegations state a prima facie case. Having found a prima facie case of interference under the Carlsbad standard and discrimination under the Campbell standard, our inquiry is thus at anCarlsbad standard and discrimination under the Campbell standard, our inquiry is thus at an end. The determination of whether DP A's actions were justified due to operational necessityend. The determination of whether DPA's actions were justified due to operational necessity and/or circumstances beyond its control are matters to be resolved in further proceedings once and/or circumstances beyond its control are matters to be resolved in further proceedings once a complaint has issued. a complaint has issued. 18 ORDER ORDER The Public Employment Relations Board (PERB or Board) hereby vacates State The Public Employment Relations Board (PERB or Board) hereby vacates State of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S.of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S. The Board hereby REVERSES the dismissal of the unfair practice charge in Case The Board hereby REVERSES the dismissal of the unfair practice charge in Case No. SA-CE-1636-S and REMANDS this case to the Office of the General Counsel for No. SA-CE-1636-S and REMANDS this case to the Office of the General Counsel for issuance of a complaint consistent with this Decision. issuance of a complaint consistent with this Decision. Chair Dowdin Calvillo joined in this Decision. Chair Dowdin Calvillo joined in this Decision. Member Mckeag's dissent begins on page 19. Member McKeag's dissent begins on page 19. 18
McKEAG, Member, dissenting: I respectfully disagree with the majority's ruling that McKEAG, Member, dissenting: I respectfully disagree with the majority's ruling that the California Correctional Peace Officers' Association (CCPOA) established a prima facie the California Correctional Peace Officers' Association (CCPOA) established a prima facie violation of the Ralph C. Dills Act (Dills Act) when, after CCPOA stopped providing former violation of the Ralph C. Dills Act (Dills Act) when, after CCPOA stopped providing former CCPOA agency fee payers with dental insurance, the State of California (Department ofCCPOA agency fee payers with dental insurance, the State of California (Department of Personnel Administration) (State) provided enhanced dental benefits at a reduced cost to these Personnel Administration) (State) provided enhanced dental benefits at a reduced cost to these employees. I dissent for the reasons set forth below. employees. I dissent for the reasons set forth below. In order to find unlawful interference, the Public Employment Relations Board (PERB) In order to find unlawful interference, the Public Employment Relations Board (PERB) has held that the charging party must establish that the respondent's conduct tends to or does has held that the charging party must establish that the respondent's conduct tends to or does result in some harm to employee rights granted under the Dills Act. (State of Californiaresult in some harm to employee rights granted under the Dills Act. (State of California (Department of Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad(Department of Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB Decision No. 89 and Service Employees International Unified School District (1979) PERB Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. l 06.) Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) In the instant case, the CCPOA members continued to enjoy the exact same dental In the instant case, the CCPOA members continued to enjoy the exact same dental benefits after the implementation of the State's last best and final offer. When the CCPOA benefits after the implementation of the State's last best and final offer. When the CCPOA Benefit Trust Fund refused to provide dental benefits to the former CCPOA agency fee payers, Benefit Trust Fund refused to provide dental benefits to the former CCPOA agency fee payers, the State was faced with a choice to either offer the existing dental benefits currently offered tothe State was faced with a choice to either offer the existing dental benefits currently offered to other State employees or to provide no dental benefits at all. Clearly, the latter option wasother State employees or to provide no dental benefits at all. Clearly, the latter option was untenable and would have likely resulted in litigation. Therefore, the State had only one untenable and would have likely resulted in litigation. Therefore, the State had only one legitimate option, and it exercised that option. legitimate option, and it exercised that option. Based on the foregoing, I find the State's conduct simply did not result in any harm to Based on the foregoing, I find the State's conduct simply did not result in any harm to employee rights. Accordingly, I believe this case should be dismissed for failure to establish aemployee rights. Accordingly, I believe this case should be dismissed for failure to establish a prima facie violation of the Dills Act.prima facie violation of the Dills Act. 19 19
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