Board: District’s Elimination Of Contract Provision Was Retaliation

Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M (Issued on 1/20/12)

Facts

This case is one of those rare occasions where the Board reverses a dismissal. The facts are somewhat convoluted, but here are the essentials as set forth in the decision. The Stanislaus Fire Protection District (District) and the Stanislaus Consolidated Firefighters, Local 3399 (Union) had a Memorandum of Understanding (MOU) effective through June 30, 2010. Section 20-2 of the MOU allowed firefighters to hold union meetings during work hours. The provision provided examples of how coverage would be maintained during union meetings and provided that, “The Duty Chief can make a determination that emergency situations or operational needs override the ability to provide coverage.”

On June 14, 2010, the District informed the Union that it was proposing to eliminate Section 20-2 from the MOU so that on-duty personnel would no longer be able to attend union meetings. When union representatives asked why the District was proposing to eliminate Section 20-2, the Chief responded that the provision did not foster good employer-employee relations. When the union followed-up by asking whether the Chief was referring to three recently-filed grievances, the Chief responded, “Uh … ya.” Later on the Chief clarified that it was the “totality of the situation including employer-employee relations which led the District to make the decision.” During negotiations the District did not formally propose to eliminate Section 20-2. However, it was the District’s position that it had already notified the Union that the provision would be eliminated and that the Union never requested to bargain over the subject during negotiations.

Board Decision

The charge contained numerous allegations of unfair practices. The Board agent issued a
complaint on some and dismissed others. The Union appealed the partial dismissal. Three specific issues are worth noting:

Unilateral Change: The Union alleged that the District unilaterally eliminated Section 20-2 without bargaining. The Board agent initially found that since there was never a formal proposal to eliminate Section 20-2, the provision was never changed and remained in the MOU. The Board rejected that reasoning and ordered that a complaint be issued based on the District’s repudiation of Section 20-2. In issuing its decision, the Board’s commented: “The District asserts that Local 3399 “was afforded proper notice of the District’s proposal to remove Section 20-2 and afforded the opportunity to meet and confer regarding removal even thought [sic] the District was not required to meet and confer.” The District cannot have it both ways. It cannot, on the one hand, profess to be in compliance with its bargaining obligations by offering to meet and confer and, on the other, assert that it has no bargaining obligations based on management prerogative.”
Discrimination: The Union also alleged that the District eliminated Section 20-2 for discriminatory reasons. Specifically, the Union alleged that the District eliminated Section 20-2 because of unrelated grievances that the Union had filed. The Board found that all the elements of discrimination were present and therefore ordered that a complaint be issued on this charge.
Interference: Similarly, the Union alleged the District’s elimination of Section 20-2 unlawfully interfered with employee rights. Following past precedent, the Board noted that unlawful motive was necessary to demonstrate unlawful interference. Instead, the Union must simple demonstrate that the action tended to or did result in harm to employee rights. The Board found that the District’s elimination of Section 20-2 did indeed interfere with employee rights because, whether intended or not, the action discouraged employees from utilizing the grievance machinery under the MOU.

Comments:

As noted above, the Board stated in its decision that, “The District cannot have it both ways. It cannot, on the one hand, profess to be in compliance with its bargaining obligations by offering to meet and confer and, on the other, assert that it has no bargaining obligations based on management prerogative.” This caught my attention as it is fairly common for a union to make a proposal on a subject matter that the employer does not believe is within the scope of representation. The employer will, of course, refuse to “bargain.” However, many employers will nevertheless engage in the union in discussions (or even outright “bargain”) about the subject in the hope of avoiding a grievance or unfair practice charge. Moreover, it is very common for an employer to agree to a provision in a MOU covering a non-mandatory subject of bargaining in order to obtain a concession on a mandatory subject of bargaining. So in some sense the employer is trying to have its cake and eat it too in these situations. At first blush, this statement by the Board calls this practice into question. But upon closer reading, I think the Board is focused on situations where the employer insists a subject is not negotiable—making it clear that it will not bargain—and then later defends its actions by asserting that the union never requested to bargain. There is plenty of PERB precedent holding that if an employer makes it clear that its mind is already made up, the union doesn’t need to go through the motions of requesting to bargain.
The discrimination and interference discussion also caught my attention because at first it seemed like this case involved a bargaining proposal by the employer. To my knowledge, PERB has never found a bargaining proposal to be discriminatory or to constitute unlawful interference. Here, although it may seem like the employer made a “proposal” the Board sets out the facts in a way to suggest that the employer did not make a proposal but engaged in a unilateral change. If so, then the Board is really just saying that a unilateral change, while unlawful in itself, can also constitute discrimination and/or interference. However, I worry that unions in the future may cite this case for the proposition that an employer’s proposal can constitute unlawful discrimination or interference. I certainly don’t read this case for that proposition.