WRR Protects Workers Rights: 3 Big PERB Cases!

PERB Affirms Right of Union and Represented Employees to Petition Elected Officials Regarding Workplace Issues, Including Bargaining Issues

SEIU Local 221 v. County of San Diego (2020) PERB Decision No. 2721-M.

A public sector union prevailed on its unfair practice charge at the Public Employment Relations Board (“PERB”) against San Diego County Board of Supervisors’ Policy A-93, which prohibits elected members of the County Board of Supervisors from discussing bargaining matters with union representatives and union-represented employees outside of public Board meetings. Under the policy, elected officials must decline to engage in such discussions and refer the union representatives and union-represented employees to the County negotiator instead. The union challenged the policy as interfering with free speech and discriminating against union speech in particular.

The County policy existed since 1982, but the County of San Diego renewed it as recently as 2018. PERB found that the union’s unfair practice charge was timely even though the policy had been in existence since 1982. PERB essentially held that it is never too late to challenge a public employer’s rule that interferes with the rights of unions or union-represented employees or that discriminates against union speech. PERB ordered its Office of General Counsel to issue a complaint alleging that Policy A-93 tended to interfere with the rights of employees and their organizations to petition elected officials.

County of Tulare v. SEIU Local 521 (2020) PERB Decision No. 2697-M.

PERB dismissed the County of Tulare’s direct-dealing charge against a union whose representatives had sent several emails to the County’s Board of Supervisors “to persuade them to direct the County to put money on the table” during bargaining. PERB found that this act was permissible because the emails did not advocate for contract terms different from those that SEIU already sought at the table, and the representative acted “well within” his “right to public advocacy.”

FAQs Regarding the Union’s Right to Communicate with Public Officials

Q: Does the union have a legal right to communicate with elected officials outside of a public meeting, such as a Board of Supervisors or City Council?

A: YES. Union members and representatives, including officers, stewards, and other leaders, have the same rights to communicate with elected officials as any other similarly situated workers, constituents, organizations, and/or members of the public. PERB recently found unlawful discrimination where a County imposed restrictions on a union’s communications with the County Board of Supervisors that are not imposed on the other members of the public.  (County of San Diego (2020) PERB Decision No. 2721-M, pp. 14-17.)

Q: Is the union allowed to communicate directly with elected officials about topics that are within the scope of bargaining, such as wages, benefits, and other terms and conditions of employment?

A: YES. In County of Tulare, PERB held that a union has a right to “engage in direct and indirect advocacy with an employer’s elected and unelected officials, up to and including the employer’s highest levels.” PERB held that the union’s communications relating to terms and conditions of employment with the elected leaders were “protected activity,” which meant it was unlawful for the County enforce or maintain rules prohibiting such communications. (County of Tulare (2020) PERB Decision No. 2697-M, p. 8; see also, County of San Diego (2020) PERB Decision No. 2721-M, pp. 14-17.)

Q: What if the union wants to communicate with elected officials during contract negotiations, while the union is bargaining with the public employer’s designated bargaining representative?

A: The union retains its right to communicate with elected officials even during bargaining. In County of Tulare, the County argued that the union acted unlawfully during bargaining by advocating that the Board of Supervisors instruct the County’s bargaining team to increase their economic proposals. PERB found that the union’s conduct was not unlawful; rather, PERB found that the union’s communications were “protected activity.” (County of Tulare (2020) PERB Decision No. 2697-M, p. 9.) PERB emphasized that the union has a right to persuade elected officials to give instructions to the designated bargaining representative. Such communications by the union are only improper if the union makes bargaining proposals to the Board members that it has not already made to the designated bargaining team. (Id. p.8; see also, County of San Diego (2020) PERB Decision No. 2721-M, p. 15.)

PERB Prohibits Public Employer’s Wholesale Denial of Access to Information and Employer Areas

County of Tulare v. SEIU Local 521 (2020) PERB Decision No. 2697-M.

PERB recently affirmed that an employer cannot categorically deny requests for information on privacy grounds or duty of neutrality grounds. In this case, a union sought internal investigatory reports related to hostile work environment claims impacting employees in the Department of Child Support Services (“DCSS”). At the same time, an agency-shop rescission petition from the union’s DCSS bargaining unit was pending before PERB. The County refused to comply with the union’s information request by claiming that the reports were confidential and the County had a duty to remain neutral during an intra-union dispute, i.e., the pending petition.

PERB held that the County improperly rejected the information request wholesale, noting that employers must specify their particular privacy concerns and negotiate over the private information at issue in the request. Moreover, the pending agency fee rescission petition did not give the County license to refuse a valid information request. PERB added that employers do not have the right to unilaterally decide what information to provide pursuant to a union’s information request.

PERB further reaffirmed that public employers cannot adopt access rules that single out unions or employees’ protected activities, and that access rules must allow protected activities to occur in non-work times and non-work areas. The union challenged the County’s rule prohibiting “employee organizations or any of their members” from engaging “in organizing activities, including distribution of literature within County buildings.” PERB found that the rule was unlawful because it explicitly addressed only protected activities, and made no exception for access during non-work times and in non-work areas.

PERB Safeguards Union Stickers on Public Employees’ Hardhats

Stationary Engineers Local 39 v. City of Sacramento (2020) PERB Decision No. 2702-M.

Union members in the City of Sacramento’s Maintenance Services Division wear hardhats. In a recent decision, PERB held that these workers will be able to keep union stickers and decals on their hardhats, invalidating the City’s unreasonable “safety” rule declaring that City-issued hardhats must “be free of stickers, decals, or any other markings (except for the city seal) and not be painted.” PERB found no special circumstances justifying the City’s rule, and struck it down.

As PERB noted, the City failed to support its argument that the rule was necessary to prevent damage to the hardhats. The record showed that neither the union contract nor the City’s policies prescribed any regular inspection of hardhats. Rather, any inspections performed were casual and often at the discretion of the employees themselves. Further, there was no evidence that the adhesive below the stickers actually damaged the hardhats, and it was common practice for employees to similarly adhere headlamps onto their hardhats. PERB thus reaffirmed its broad protections for employees expressing union support and solidarity on the jobsite.

Weinberg, Roger & Rosenfeld is pleased to have represented the unions in these cases.

If you have any questions, please direct them to your labor law counsel.

By: Zach Angulo, Xochitl Lopez and Kerianne Steele | June 5, 2020

Legal Developments