AFSCME's Leafletting Was Not An Unfair Practice

AFSCME, Local 3299 (2010) PERB Decision No. 2105-H (Issued on 4/21/10)

Facts:

This case involved an unfair practice charge filed by the University of California (UC) against AFSCME. During bargaining, AFSCME began leafleting in front of several medical centers at various UC campuses. The expired contract between UC and AFSCME required the union to abide by specific access guidelines promulgated at each campus. Those guidelines set forth exactly where AFSCME could engage in leafleting and where it couldn’t (for example, because of patient access issues). During the leafleting at issue, it appears undisputed that AFSCME violated the access guidelines by leafleting in prohibited areas. According to the PERB decision, UC officials asked the AFSCME members engaged in the leafleting to move, which they did.

AFSCME then went to court to seek a temporary restraining order (TRO) to enjoin UC from prohibiting the leafletting. The court granted the TRO but later denied a preliminary injunction on the ground that PERB had initial jurisdiction.

In its decision, PERB assumed that AFSCME was in violation of the contract when it engaged in leafleting in areas where the guidelines prohibited such conduct. However, because AFSCME agreed to move when confronted by UC officials, PERB held that AFSCME’s conduct was just an isolated breach of the contract, and not a repudiation of the contract that would constitute an unlawful unilateral change.

Comments:

First, I thought it was ironic that the union went straight to court to seek injunctive relief instead of going to PERB. As many of you know, the issue of whether PERB has exclusive jurisdiction over essential employee strikes is before the California Supreme Court in City of San Jose v. Operating Engineers Local Union No. 3 (Case No. S162647). (In fact, oral argument in San Jose occurred on May 5, 2010—but more on that tomorrow.) The unions have all lined-up solidly in favor of PERB having jurisdiction so that employers cannot go directly to court for injunctive relief. So it’s ironic that the union here went straight to court.
With respect to the merits of this case, the key holding was the Board’s finding that because the union stopped the “breach” (ie stopped leafletting) when asked by UC, it was just an isolated contract violation and not a complete repudiation of the contract. Because isolated breaches do not constitute an unlawful unilateral change, PERB affirmed the dismissal of the charge. By itself, I don’t have a problem with this holding.
I’ve argued before that there should be some type of “safe harbor” provision whereby a party can correct a breach and not be guilty of an unfair practice. For example, in County of Sacramento (2008) PERB Decision No. 1943-M, the Board found a violation even though the County rescinded the change before it ever took effect. My position was that given the rescission, PERB should not have found that the County committed an unfair practice.
Indeed, it’s worth taking a look at what PERB said in County of Sacramento:

“The County argues that by rescinding the ordinance, there is no longer any policy change even arguably subject to meet and confer requirements, and the issue is now moot. In Amador Valley Joint Union High School District (1978) PERB Decision No. 74, however, the Board held that the later reversal or rescission of a unilateral action or subsequent negotiation on the subject of a unilateral action does not excuse a violation. [Citation.] … The fact that the County reversed its position and restored the status quo before the new policy went into effect, does not cure the unlawful unilateral change.”
It’s difficult for me to square what PERB said in County of Sacramento with what happened in this case. I believe the two cases are inconsistent. Here, there was an undisputed breach. It was actually worse than in County of Sacramento since AFSCME actually did engage in leafleting in areas where it was prohibited. In contrast, in County of Sacramento the County rescinded the change before it ever took effect. Yet PERB found a violation in County of Sacramento but not one here. Nevertheless, if I had to choose which holding I like better, it’s the one in this case. Even though the union prevailed in this case, in the future this will benefit employers more than unions since the vast majority of unfair practice charges alleging unlawful unilateral changes are directed against employers.
Lastly, in the interest of full disclosure, I must note that I currently represent the University of California in several PERB cases; although I was not involved in this one. As for the remainder of this case, I do think that there was sufficient evidence that AFSCME improperly disrupted university operations so that a complaint should have been issued. However, that was not the main focus of the Board’s decision so I didn’t delve into that aspect of the case.