PERB Decision No. 0130E•Long Beach Unified School District (PERB 0130E)
Long Beach Unified School District (PERB 0130E)
PERB Decision No. 0130ECalperb28.05.1980
Gesamter Gesetzestext
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD LONG BEACH FEDERATION OF TEACHERS, LOCAL 1263, AFT, AFL-CIO, Charging Party, v. LONG BEACH UNIFIED SCHOOL DISTRICT, Respondent. Case No. LA-CE-171 PERB Decision No. 130 May 28, 1980 ) ) ) ) ) ) ) ) ) ) _____________________ ) ~eearances: Henry R. Fenton, Attorney (Levy, Koszdin, Goldschmid and Sroloff) for Long Beach Federation of Teachers, Local 1263, AFT, AFL-CIO; Ted R. Huebner, Attorney (McLaughlin and Irvin) for Long Beach Unified School District. Before: Gluck, Chairperson; Gonzales and Moore, Members. PROCEDURAL HIS~QRX On August 24, 1977, the Long Beach Federation of Teachers, Local 1263, AFT, AFL-CIO (hereafter Federation or Charging Party) filed an unfair practice charge against the Long Beach Unified School District (hereafter District). The Federation alleged that the District had violated sections 3543.S(a), (b) and (d) and 3543.l(b) of the Educational Employment Relations Act (hereafter 1 EERA or Act) • In part, the factual allegations set forth by the Federation pertained to District 1The BERA is codified at Government Code section 3540
conduct
which,
the Federation
asserted,
evidenced
preferential
treatment of the
Teachers
Association of
Long
Beach
(hereafter
et
seq.
Unless
otherwise noted,
all
statutory
references are
to the
Government Code.
The
provisions of the
EERA
cited
by
the
Federation are
as
follows.
Section 3543.S(a),
{b) and (d)
states:
It
shall
be
unlawful
for
a
public
school
employer
to:
(a) Impose
or
threaten to
impose
reprisals
on
employees,
to discriminate
or
threaten todiscriminate against
employees,
or otherwise
to
interfere
with,
restrain,
or coerce
employees
because
of
their
exercise
of
rights
guaranteed
by
this
chapter.
(b) Deny
to
employee
organizations
rights
guaranteed
to
them by
this
chapter.
(d)
Dominate
or
interfere
with theformation
or administration
of
any employee
organization,
or
contribute financial
or
other support to
it,
or in
any
way
encourageemployees
to join
any
organization in
preference to another.
Section 3543.l(b)
states:
(b) Employee
organizations shall
have
the
right of access
at
reasonable times to areasin
which employees work,
the
right to
use
institutional bulletin
boards, mailboxes,
and
other
means
of
communication,
subject toreasonable regulations,
and
the right to
use
institutional facilities at
reasonable times
for the purpose
of
meetings concerned
w1cn
the exercise of the
rights
guaranteed
by
this chapter.
2Association) and unlawful discrimination against the Federation. The charge also challenged various rules adopted by the District to regulate the activities of employee organizations. The Association requested permission to join the action and on October 24, 1977, the Public Employment Relations Board (hereafter Board or PERB) granted the request. Thereafter, pursuant to settlement negotiations, the parties reached an agreement which resulted in the withdrawal of the allegations concerning the District's preferential and discriminatory conduct and the Association's withdrawal as a party to the instant unfair practice charge. A hearing was held on October 26 and 27, 1977, concerning the Federation's challenge to the District's rules pertaining to employee organization activity. A PERB hearing officer rendered a proposed decision in this case on June 2, 1978, to which the District excepted. The Board itself has considered the Federation's allegations and has reviewed the entire record in the case. The hearing officer's findings of fact as contained in the proposed decision, attached hereto, are free from prejudicial error and are adopted by the Board itself. DECISION The issues raised by the instant unfair practice charge concern an employee organization's right of access as provided 3
by section 3543.l(b) of EERA, set forth supra. In that subsection, an employee organization is expressly granted the right of access at reasonable times to areas in which employees work, the right to the use of bulletin boards, mailboxes and other means of communication, subject to reasonable regulations, and the right to use institutional facilities at reasonable times. Therefore, as to each of the District's access rules challenged by the Federation's charge, the Board must determine whether the rule falls within the employer's right to establish "reasonable" regulations to implement the access procedure. In striking this balance, the Board has considered, as stated in Richmond Unified School District/Simi Va!_!~Y Unified School District (8/1/79) PERB Decision No. 99, that an employer's regulation of an organization's access rights is reasonable if it is consistent with the basic labor law principles set forth in EERA which are designed to insure effective and nondisruptive organizational communications. Each aspect of the Federation's challenge will be discussed separately. A. Organizational Activity Outside of Duty Hours of the Wor: kday2 2The District's rule regarding organizational activity states, in pertinent part: Employee Association Business--All activities concerning association business, 4
By its access rules promulgated in October 1976, the District sought to establish that all activities concerning association business3 would be conducted outside of duty hours of the workday for the individuals involved. The District's coordinator of Employee Relations testified that duty time for teachers is synonymous with workday. The District's rules included a definition of workday which, combined with the rule on organizational activity, produced the result that all organizational activity was prohibited during the 20 minutes prior to the start of a teacher's first class and the 20 minutes after the completion of the teacher's last class.4 as defined, shall be conducted outside duty hours of the workday for the individuals involved. All association business when on district property shall be conducted away from students and other non-employees. (Emphasis in original.) 3As defined in the District's rules, employee association business refers to "any activity related to recruitment of members, circulation of petitions, election campaigning, or other matters relating to unit determination hearings and exclusive representation elections." 4specifically, the rules set forth the following definition of "workdays": 1. Teachers (includes Math/Reading Specialists)--Normally, the teacher 1 s workday extends from 20 minutes before the first assigned period to 20 minutes after the last assigned period; including class, 5
The subject of organizational activity and the right of access under the National Labor Relations Act (hereafter NLRA) has been extensively considered by the National Labor Relations Board (hereafter NLRB) and the courts. The NLRA, however, does not specifically include a provision similar to section 3543.l(b) of EERA and these decisions have considered the propriety of an employer's rule concerning organizational activity in terms of resultant interference with employees' rights. Nevertheless, both section 3543.l(b) and the cases under the NLRA are directed to the same end: ensuring access conference, and p~eparation periods. (Kindergarten teachers have the same workday as other elementary teachers. Elementary teacher-librarians work on a 7-hour day.) It also includes additional related service time such as after school and evening supervision of student body activities and other extra-curricular duties. 2. Other Employees--All other regular full time employees have an eight-hour day,exclusive of a lunch period. 3. Nutrition and Lunch··•-No part of theduty-free nutrition and lunch periods(except for passing time supervision ofstudents when assigned) is considered to be duty time. 4. Child Development Center and Other Part-time Employees----Meetings for these employees may be arranged at work sites solong as they do not conflict with the individual employee's duty time and do not disrupt the work function of employees still on duty. 6
of employee organizations to employees. Therefore, the Board has considered applicable labor law precedent in determining whether the employer's rule concerning organizational activity is reasonable and therefore permissible under the EERA. (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616-17 [116 Cal.Rptr. 507; 87 LRRM 2453]; and Richmond/Simi, supra, at p. 16.) In Republic Aviation Corp!... v. NLRB (1945) 324 U.S. 793 [16 LRRM 620], the Supreme Court adopted the presumption that a rule prohibiting union solicitation by employees outside working time was an unreasonable impediment to self organization. Subsequent decisions in this area have attempted to accommodate the employees' rights to freely participate in the activities of employee organizations with the right of the employer to maintain order and discipline. (~~RB v. Babcock & Wilcox, CC?_:_ (1956) 351 U.S. 105 [38 LRRM 2001].) In striking this adjustment, the Board established in Stoddard Quirk Mfg. Co!... (1962) 138 NLRB 615 [51 LRRM 1110] a distinction between distribution of literature and solicitation. Restrictions on employee solicitation during nonworking time and restrictions on distribution during nonworking time and in nonworking areas are violative of section 8 (a) (1) of the NLRA5 unless the 5section 8(a) (1) of the NLRA provides: It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce 7
employer justifies the rules by a showing of special circumstances which make the rule necessary to maintain production or discipline. (Also, see Okaloosa-Walton Jr. College v. PERC (Fla. Dist. Ct. App. 1979) 372 So.2d 1378 [102 LRRM 2419] .) In this case, however, the District's regulation of employee association business does not distinguish solicitation from distribution. Rather, the record reveals that the District sought to prohibit both types of organizational activities directed at employees during the two twenty-minute periods. Therefore, as applied to solicitation and distribution in nonworking areas, the propriety of the District's rule depends on whether the 20-minute per1oa befure and after classroom duties is determined to be nonworking time. In seeking to accurately characterize the two twenty-minute periods, the Board is not persuaded by the District's argument t because s are required to be present at school during this time it is preparation time rather than free, nonworking time. While the Board acknowledges that a component employees in the exercise of the rights guaranteed in section 7; 8
of a teacher's job duties includes preparation time, the record does not demonstrate that the two twenty-minute periods are expressly and/or uniformly reserved for preparation time. In fact, it reveals that the majority of teachers do not work during these times. The mere possibility that an instructor could do his/her classroom or other preparation during this time, or might in individual circumstances have duties assigned by school administrators during this time, does not support a conclusion, that, under normal circumstances, the 20-minute periods are working time for all or most employees. Thus, to the extent that the District's ban on organizational activity prohibited solicitation and distribution efforts directed at teachers who were not assigned work during the 20-minute periods before and after classes and who were in nonworking areas, the rule is unreasonable. (Essex International, __ !~~_:_ (1974) 211 NLRB 749 [86 LRRM 1411] .) Similarly, the Board adopts the hearing officer's conclusion that, as to organizational activities directed at instructional aides, the District's rule was unlawfully applied.6 On its face, the District's 20-minute rule is 6The Board considered and rejects the District's argument, as set forth in its exceptions, that it was notadvised that application of the organizational activity rule tothe work schedule of instructional aides was under submission to the hearing officer, and that it was thereby denied due process of law. To the contrary, the substance of the 9
inapplicable to the instructional aides since they are not required to report to work 20 minutes before their assignments nor required to remain at the school 20 minutes after their assignment. The record also reveals that the instructional aides were not afforded lunch breaks or uniformly granted rest periods. Thus, implementation of the District's organizational activity rule as interpreted by the District effectively precluded employee organization representatives' access to these employees because the instructional aides were not granted the nonworking periods of time during which the rule permitted organizational activity. The Board, therefore, affirms the hearing officer's determination that the District violated section 3543.S(b) of the Act by denying the Federation its right of access to nonworking employees occupying nonworking areas. Federation's charge, both as set forth in its unfair practice charge and as addressed at the hearing, clearly established that the rule and its application was challenged. Federation witness Ribar provided ample testimony as to the specific problems confronted during her attempts to organize instructional aides. The District was afforded full opportunity to cross-examine Ribar and, in fact, questioned its own witness, Marmion, about the application of the organizational activity rule to instructional aides. Having fully and fairly been heard on the issue, the District's due process argument is rejected. (See Santa Clara Unified School District (9/26/79) PERB Decision No. 104 and cases cited tnere fn at pages 18 and 19.) 10
B. Distribution of Literature During Non-Duty Hours? The Federation also challenged the District's rule which restricted the employees' right to distribute literature to their "non-duty" hours and restricted the nonemployee 7The District's rule regulating the distribution of literature provides: 1. Site Mailboxes and Bulletin Boards--Association representatives who are employees of the district may distribute materials to employees during the employees' non-duty hours or may place materials in employee mailboxes. Also, materials may be posted on employee bulletin boards designated for associations. Association representatives who are not district employees may distribute materials in mailboxes during hours when schools and offices are regularly open and may distribute materials to district employees during the district employees' non-duty time. 2. Conditions--Materials distributed or posted must be properly identified as to source and must not be distributed in such away as to interfere with classroom instruction, regular district routines, or conditions of cleanliness or safety. Notices should be posted for no more than15 workdays and must not include campaign material related to municipal, state, or national elections; statements or other written material containing implications of a derogatory or unprofessional nature relating to any person~ statements that will be disruptive to the site operation; or discussion of personnel problems or grievances with reference to specificcases. Materials that do not meet these regulations will be withdrawn from circulation until such time as correctionsare made. 11
representative's right to distribute literature to employees during the employees' 11 non-duty 11 hours. The Board is in agreement with and hereby affirms the hearing officer's decision that the rule is impermissible to the extent that it fails to distinguish actual working time from periods during the workday when employees are free from duties. This failure is critical because cases arising under the NLRA have established that a private sector employer may not prohibit the distribution of literature to nonworking employees in nonworking areas.8 (Essex International, supr~; Stoddard Quirk Mfg. Co., supra; ~~~~dyke Tran~ort, Inc. v. ~LRB (10th Cir. 1976) 530 F.2d 137 [91 LRRM 2405] .) The Board finds that the application of this principle to the public school employer is amply justified by the need to insure reasonable avenues of communication to employees. This finding is likewise consistent with and in furtherance of the Legislature's intent, as evidenced by the inclusion of section 3543.l(b), set forth 8while not applicable to the instant case, an exception to this general rule permits an employer to impose greater restrictions on solicitation and distribution in certain employment environments such as retail department stores and hospitals where the potential for interference with the employer's operation is caused by the presence of customers or patients. (May D~pt. Stores Co. (1944) 59 NLRB 976 [15 LRRM 173], enforced as modified, (8th Cir. 1946) 154 F. 2d 533 [17 LRRM 985]; Beth Israel Hospital v. NLRB (1978) 437 U.S. 483 [98 LRRM 2727].) 12
suEra, to expressly grant employee organizations the right of access to and communication with employees. The Board concludes that in this case, the District's rule regarding distribution of literature is unreasonable because it does not clearly permit nonworking employees to distribute material to other nonworking employees or to receive organization material in nonworking areas. In addition to the impermissible restriction suggested by the ambiguous language of the rule, the application of the rule to instructional aides exposes an equally serious impediment to an employee organization's right of access. The fact that instructional aides did not have personal mailboxes effectively obstructed the organizer 1 s efforts to disseminate literature to these employees. As the facts in this case amply demonstrate, the concept of reasonable access must necessarily include some form of reasonable accommodation to the particular employment conditions and circumstances relevant to instructional aides and other significant groups of employees in the district. As applied to the organizational efforts aimed at instructional aides, the District's rule imposed nearly insurmountable obstacles and thwarted efforts to provide these employees with 13
organizational literature which is essential to the free exercise of organizational rights.9 C. Identification Cardsl0 9with specific regard to the organization's right ofaccess to instructional aides, the Board notes that certain school administrators attempted to accommodate the District's mailbox rule, set forth supra, to the fact that instructional aides did not have personal mailboxes assigned. For example, in some schools, the employee organization representative was instructed to leave materials near the aides' sign-in book or to place the materials in the mailboxes of the regular teachers in hopes that they would be passed on to the aides. In other schools, the representative was permitted only to leave the materials with the principal's secretary. In one such school, the representative left the materials with the secretary and later that day returned to the school and observed the secretary removing the materials from beneath the counter. Based on the fact that only some schools afforded alternatives and that such alternatives did not uniformly or adequately provide for actual distribution to the instructional aides, we find that the District's efforts resulted in an ineffective means of access and imposed substantial burdens on the employee organization's right to communicate with employees. lOThe District's rule regarding identification cards provides: Identification of Representatives ofNon-Verified Employee Associations 1. When an association wishes to pursue employment matters with employees but does not have any district employees as members and/or has not applied for recognition as a verified association, its representative must apply to the district 1 s Office of Employee Relations (Board of Education Building, 701 Locust Ave.) for approved identification cards and/or verifiedassociation status. 2. Upon proper presentation of credentials, such representative of an association will 14
The Federation's unfair practice charge challenges the District's rule which requires that all employee organization representatives who are visiting at a site where they are not employed by the district must obtain an identification card issued by the District Office of Employee Relations. In reviewing the identification card requirement, the Board recognizes that it is clearly within the public school employer's legitimate authority to require that unknown visitors to its school sites identify themselves to school administrators. It is noted that the District's rule also requires that school visitors sign in at the main office and state their business and their whereabouts while on campus. In the Board's view, compliance with this portion of the rule be issued identification cards without delay and will be authorized access to district sites for the purpose of arranging meetings with employees. The District's rule defines a verified association as: ... any employee association which wishes to be acknowledged or has been acknowledged by the Board of Education for the purpose of representing members and of qualifying for dues deduction privileges prior to the selection of an exclusive representative. Those who represent verified associations including district employees and non-employees will be issued identification cards by the Office of Employee Relations to be used in making contracts to district schools and offices. 15
adequately protects the employer's interest in monitoring on-site visitors. A visiting employee organization representative may legitimately be required to identify him/herself to school administrators; however, the District's rule appears to demand a specific method of identification which is different from the procedure required of other school visitors. The Board finds, therefore, that the District's rule is unreasonable because it discriminates against union representatives by requiring, without justification, a visitor identification procedure more onerous than is normally required of other visitors. Moreover, because only the employer can supply an organization representative with an acceptable form of identification, the rule demands that union organizers must provide the employer with advance notice of its visiting representatives and invites the possibility that administrative delays will further obstruct access rights.11 The Federation has demonstrated that, in this fashion, the rule interferes with its ability to effectively utilize the assistance of organizers whose availability is sporadic and unpredictable. The rule is therefore unreasonable in that it unnecessarily llwhile the record does not conclusively establish that administrative delays actually occurred, the Board notes that the possibility for delays is inherent in the rule's requirement demanding administrative processing of the identification cards. 16
restricts the Federation's ability to exercise its right of access. The District's legitimate purposes can be met without such broad intrusion into the Federation's organizational rights. For the reasons set forth above, the Board finds that the District's identification card rule unlawfully interferes with the employee organizations' right of access to employees. D. Three Person Conversation and Prior Arrangement Rulesl2 2 1 The District's rules concerning the three person limitation and prior arrangement requirement provide in pertinent part: Approved Association Activities by EI!!E,~oyees The following activities may be conducted by employees who work at a site during non-duty hours as established and understood by the site manager or supervisor and the affected employee(s}: B. Communicating on association business matters with not more than three employees on an informal basis in lounges, workrooms, lunchrooms, or other areas where employees ordinarily gather. NOTE: Employees engaged in such conversations shall refrain from disrupting or interfering with other district employees who are otherwise engaged and who do not wish to be a party to the discussion on association matters. Where a discussion between individuals becomes a small group meeting, arrangements must be made for an 17
The District's rules regarding on-site meetings with employees provide that an employee organization representative may meet informally with no more than three employees at a time alternate meeting place as per section v., paragraph D. of this bulletin.) . . . . . . . . . . . . . . . . . . . . . . . Organizing Activity bl__!~eloyee Associations A. Identification of Representatives of Verified Associations 1. Site Employee as Representative--Where an employee assigned to work at the site is also the verified association's representative, he/she shall make advance arrangements with the appropriate site manager or supervisor on all matters related to this bulletin. Arrangements shall be made sufficiently in advance to allow site managers time to study requests. 2. Non-site Employee or Verified Association Staff Employee as Representative----Where the association representative who wishes to implement sections of this bulletin is not an employee as the site, he/she shall make arrangements in advance and shall officially identify himself/herself as per paragraph C below. D. Facilities Arrangements 1. Association or Personal Business -----with Individual Emp~--An association representative who is not employed at the site may meet privately with up to three individual employees during non-duty hours in a lounge, workroom, lunchroom, or other similar area so long as the conversation 18
and that the District will provide rooms for meetings with four or more employees. The rules require that representatives who do not work on the campus where the meeting takes place must make arrangements for both types of meetings one day in advance and on-campus representatives must make arrangements one day in advance for meetings with four or more employees. The Board finds that the organization's right of access which extends to nonworking employees in nonworking areas cannot be subjected to an artificial limitation based on the number of employees with whom the representative meets. While an employer may properly prohibit organizational activity which is disruptive of school functions or the educational environment, the instant rule is will not disrupt or interfere with others. The lounge or other area may be specified by the site manager or supervisor. 2. Association Business with Groups of Employees--When it is anticipated that association business is to be conducted informally or formally with a group of four or more employees, room arrangements must be made at least one day in advance of the meeting. The request for access must be made to the site manager or supervisor and shall include the specific date, time, and size of a facility requested. The principal or office head will evaluate the request and normally authorize use of the facilities while mindful of the district's need to balance fairly the rights of all employees, of other associations, and of the district itself. Failure to make arrangements in advance shall be grounds for prohibiting any such meetings at the site. 19
unreasonable because it assumes without factual basis that all discussions with more than three employees necessarily assume a disruptive quality. Moreover, when the District's rule limiting informal discussions to three persons is considered together with the rule which permits, under normal circumstances, only two representatives per school site,13 an employee organization can optimally hope to reach only six employees at any one time. Thus, these rules may in fact increase the likelihood of so called "disruption" which the District seeks to control by causing the organization representative to have to make repeated visits to certain school sites in order to communicate with employees. Therefore, when viewed in their entirety, the District's rules lack reasonable justification and are plainly seen as an attempt to unlawfully limit an organization's right of access to employees. 13rn its unfair practice charge, the Federation alleged that the District unreasonably interfered with its right of access by promulgating a rule which states "Normally, no more than two representatives from the same association will be permitted at a site for a single visit." The hearing officer concluded that, absent evidence concerning inflexibleapplication of this rule, it was not an unreasonable regulationof access rights. The Federation did not object to the h2aring officer's decision as to the two person limitation. Therefore this issue is not before the Board, and we have not consideredthe propriety of this regulation. 20
The District asserts that its rule was designed to protect against the disruption visited on employees who do not wish to hear from organization representatives. While the District may legitimately promulgate rules to prohibit disruptive conduct, the EERA does not establish the public school employer as the guardian of the employees' undisputed right to refrain from participating in the activities of an employee organization.14 By specifically granting employee organizations the right of access, the statute clearly recognizes the essential need to communicate with and approach those nonworking employees whom organizations seek to represent. By characterizing such communications as disruptive, the District ignores the fact that the employee organization's access right must necessarily include the initial right to address nonworking employees some of whom may elect to extricate themselves from further organizational attempts. In balancing the right of access of organizations and the right of individual employees to participate or refrain from participating in organizational activities, the Board finds the latter right is adequately protected in that disinterested employees are not a captive audience and may 14The EERA provides in section 3543 that public schoolemployees shall have the right "to refuse to join or participate in the activities of employee organizations." 21
simply leave the nonworking areas or otherwise ignore the organizational activities. The Board finds that the District's rule is reasonable and it may legitimately require that one day advance notice be given in order for an employee organization to secure the use of rooms not normally used by nonworking employees. However, to the extent that the District's rule appears to require that all meetings with four or more employees be conducted at such pre-arranged facilities, the regulation is unreasonable. The Board recognizes, of course, that in certain settings, unlike lounges, lunchrooms or other nonworking areas, large gatherings of employees may be disruptive of the educational process unless they are conducted in appropriate facilities, for which advance notice is generally required. However, absent the nonavailability of appropriate facilities or a showing of probable disruption of school functions, there is no justification for the District's rule which has the result of denying an employee organization the right to use such facilities for organizational activity conducted during nonworking hours. Consistent with the foregoing discussion, the Board finds that the Federation's right of access, as guaranteed by section 3543.l(b) of EERA, was subjected to unreasonable regulation by the District's rules in violation of section 3543.S(b) of EERA. Additionally, it is concluded that the District's rules 22
likewise interfered with the rights of employees to participate in the activities of an employee organization and deprived the employees access to the organizational efforts and communications of the Federation representatives. The Board finds that the rationale proffered by the District in support of its rules fails to evidence operational necessity or conduct based on circumstances beyond the employer's control where no alternative course of action was available. (Carlsbad Unified School District (1/30/79) PERB Decision No. 89.) Therefore, consistent with the holding in San Francisco Community College District (10/12/79) PERB Decision No. 105, we find that the District's rules concurrently contravened section 3543.S(a) of the Act. The Board affirms the hearing officer's conclusion that the facts fail to demonstrate a violation of section 3543.S(d) of the Act. ORDER Based on the foregoing facts, conclusions of law and the entire record in this case, it is hereby ORDERED that the Long Beach Unified School District: 1. Cease and desist from adopting and applying rules and regulations which unreasonably interfere with employee organizations' rights of access; 2. Post copies of the attached notice marked 11 Appendix 11 at all school sites and in all other work locations where notices 23
to employees customarily are placed for a period of 30 workdays. Copies of this notice, after being duly signed by the superintendent of the District, shall be posted immediately after receipt thereof. Reasonable steps should be taken to insure that said notices are not altered, defaced or covered by any other material; and 3. Notify the appropriate regional director of the Public Employment Relations Board, in writing, within 20 days from the date of this Decision, of what steps the District has taken to comply herewith. This Order shall become effective immediately upon service of a true copy thereof on the District. By: -Barbara D. Moore, Member Member Raymond J. Gonzales' dissent begins on page 26. 24 By: -Barbara D. Moore, Member
Appendix: Notice NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD, An Agency of the State of California After a hearing in Case No. LA-CE-171, in which all parties had the right to participate, it has been found that the Long Beach Unified School District violated sections 3543.S(a) and (b) of the Educational Employment Relations Act by adopting and applying rules and regulations which unreasonably interfered with employee organizations' rights of access to employees as granted by section 3543.l(b) of the Act. As a result of this conduct, we have been ordered to post this notice. we will abide by the following: We will not apply or in the future adopt any rule or regulation which will unreasonably interfere with employee organizations' access rights. LONG BEACH UNIFIED SCHOOL DISTRICT By: Superintendent Dated: This is an official notice. It must remain posted for 30 consecutive days from the date of posting and must not be defaced, altered or covered by any material. 25
Raymond J. Gonzales, Member, dissenting in part: While I concur in the majority's decision that certain rules imposed by the District unreasonably restrict employee organization access under section 3543.l(b), I find that other rules struck down by the majority reasonably accommodate the access rights of employee organizations with the rights of the District to maintain discipline. A. The twenty-minute rule. Section 3543.l(b) gives employee organizations the right of access at reasonable times to areas in which employees work. I agree with the majority's interpretation of "reasonable times" to mean nonwork time. It would indeed be unreasonable to allow employee organization representatives the right to interrupt employees during worktime. But I cannot agree with the majority's interpretation of nonwork time. Nonwork time is time allocated for employees' personal use, for relaxing or eating. It is not time when employees should be, but are not, working. The majority, however, apparently believes that nonwork time is time when employees are not ig fact working, regardless of their actual assignment. This is clearly demonstrated by the majority's decision giving employee organizations a right of access to teachers during two twenty-minute preparation periods. Preparation time is worktime under the majority's ruling in San Mateo City School District (5/20/80) PERB Decision No. 129: 26
As a requirement of the teaching "job,"preparation time is a component of the teachers' employment obligation in the same sense as are classroom instruction and other mandated duties .... But preparation, unlike classroom instruction, is a relatively unstructured activity: even what appear to be casual conversations may in fact be work-related discussions. Thus it is difficult to monitor teacher activity during time allocated to preparation and districts have generally not attempted to do so. As a result, teachers in Long Beach have apparently been using the preparation time before and after classes for other purposes. Because some teachers do not work during preparation time, the majority finds that at least 40 minutes of the time provided by the District for preparation is nonworkin~ time in which teachers are entitled to engage in organizational activities. That the District intends this 40 minutes to be working time is apparently irrelevant; according to the majority, the fact that some teachers choose not to work means that the time is not worktime after all, that the District is instead providing 40 minutes a day of additional paid break-time.l lThe majority notes that the two twenty-minute periodsare not ~~_pressly reserved for preparation time. This creates an interesting presumption: time during the workday, unless specifically allocated to a particular work activity, is nonwork time. A much more reasonable presumption is that time during the workday which has not been designated as breaktime or lunchtime is worktime to be used for work activities. 27
This blurring of the distinction between working and nonworking time could affect teachers in several ways. First, there is the impact on those teachers who actually prepare during the time allocated for preparation. Under the majority rule, any teacher in a nonworking area is subject to solicitation during the 20-minute periods before and after classes. Lounges are considered strictly nonworking areas by the majority;2 therefore, any teacher using the lounge to prepare for classes, as many do,3 may be interrupted and encouraged to stop working and discuss organizational issues. Thus, the majority not only sanctions the use of preparation time as nonworking time but also sanctions interference with those employees who choose to work during the 20-minute preparation period before and after classes. Second, there will undoubtedly be an impact on the negotiation of preparation time.4 Districts may be reluctant 2Majority opinion, p. 22, ante. 3Teachers may choose to work in faculty lounges insteadof their classrooms for many reasons, including smoking privileges and freedom from student interruptions. K-12 teachers do not normally have offices. 41n San Mateo, ~upr~, PERB Decision No. 129, the majority found that preparation time is negotiable. I dissented,arguing that preparation is a professional responsibility, thatnegotiations on such an idiosyncratic matter are impractical, and that finding preparation time negotiable would have anenormous impact on educational policy considerations. 28
to agree to additional preparation time when that time can so easily become nonworking time available for organizational activities under the majority's direction in this case. Third, the decision is likely to have an impact on the day-to-day activities of teachers. Teachers will not gain additional time for organizational activities; what they will gain is additional direct supervision. If teachers have been abusing the time allotted for preparation by using it for personal purposes and union activities, districts are unlikely to officially sanction this abuse by allowing employee organization access. They are much more likely to attempt to stop the abuse by supervising teachers to ensure that they are actually working during preparation time. B. Distribution of literature. I agree with the majority that literature can be distributed to employees during nonworking time in nonworking areas. I disagree with the majority's contradictory opinion to the extent that it considers the 20-minute periods before and after classes to be nonworking time. I further disagree with the implied finding that the District must go beyond the statutory requirements of allowing access to instructional aides during their nonworking time or the use of institutional bulletin boards, mailboxes, and other means of communication by affirmatively creating a new means of communication with those employees. 29
The majority finds that "[t]he fact that instructional aides did not have personal mailboxes effectively obstructed the organizer's efforts to disseminate literature to these employees." (Maj. opn., ante, p. 13) Further, in a footnote, the majority states: Based on the fact that only some schools afforded alternatives and that such alternatives did not uniformly or adequately provide for actual distribution to the instructional aides, we find that the District's efforts resulted in an ineffective means of access and imposed substantial burdens on the employee organization's right to communicate withemployees. (Maj. opn., ante, p. 14) Thus, the majority apparently requires the District to do more than provide access to instructional aides. Indeed, since the solution of placing materials near the aides' sign-in books was considered inadequate (see Maj. opn., ~nte, fn. 9, p. 14), the majority is apparently ordering the District to actively help employee organizations distribute materials to aides. This goes far beyond what section 3543.l(b) requires and even beyond the requirements of the majority's decision in Richmond Unified School District/Simi Valley Unified School District (8/1/79) PERB Decision No. 99. In those cases, the mail systems already existed and the districts only had to allow employee organizations to use them. Here, the majority is apparently requiring the District to create some new means of communication with aides not for 30
District
use
but
specifically
for the
use
of
employee
organizations.
While
I
do
not
believe
that
districts
should
unreasonably hinder
employee
organization
access
to
employees
during
nonworking
time,
neither
do I
believe
that
they
must
actively
aid
employee
organizations in
their
organizational
efforts.
As
I
stated
in
my
dissent
in
Richmond/Simi:
The
specific
requirements of
section
3543.l(b}
oblige
school
districts
to
do no more
than provide access
to
work
areas,
bulletin
boards
and
mailboxes.
Providing access
to
work
areas or
meeting
rooms
requires
little
or
no
involvement
of
district
personnel; the
public
school
employer must
merely
refrain
from
interfering
with
an
employee
organization's
right
to
communicate
with
employees.
By
contrast,
transporting
and
distributing
organizational material
does
require
such
involvement
....
Clearly, there
is
a
difference
between
permitting
access
to
inanimate
district
resources
and
requiringthe
district
to
provide personnel
to assist
employee
organizations in the
distribution
of
their
organizational materials.
{pp.
34-35.)
Even
the
majority
should recognize
some
distinction
between
allowing the
use
of
existing
means
of
communication and
requiring the
creation
of
additional
means. Yet
this
decision
indicates that
the majority
does not respect
this distinction;
if
a
district
does not
have an
adequate communications system,
it
must be improved
for the
benefit of
employee
organizations.
I
find
it
difficult
to believe that the
Legislature
intended such a
subsidy to
employee
organizations.
31Furthermore, this may require an expenditure of tax monies that could be construed as a gift of public funds. C. Three-Person Conversation and Prior Arrangement Rules The District's rule providing that an employee organization representative may meet informally with up to three employees in lounges, lunchrooms, or similar areas is a reasonable attempt to retain the character of those areas as places where all teachers can work or relax free from student interruption. The majority's decision, on the other hand, would allow employee organizations to appropriate these areas for their organizational activities, since it sanctions the use of lounges and lunchrooms for large gatherings of employees: The Board recognizes, of course, that in certain settings unlike lo~ges, lunchrooms or other nonworking__~reas, large gatheringsof employees may be disruptive of the educational process unless they are conducted in appropriate facilities, for which advance notice is generally required. (Maj. opn. at p. 22, emphasis added.) While I agree with the majority that the employer is not the statutorily-appointed guardian of the right of employees to refrain from participating in the activities of employee organizations, I also believe that a district has a responsibility to ensure that areas provided for the use of all teachers remain available to all teachers and are not taken over by any particular faction. The District's rule does this, without denying employee organization representatives the right 32
to approach all nonworking teachers individually to ascertain their interest in further organizational communication. If a teacher is interested in hearing more about the organization, the representative can solicit that teacher's attendance at a meeting in another room, without disturbing the activities of those employees who may at the time not be interested in the organization's meeting.5 While the majority acknowledges that not all employees may be interested in the activities of an employee organization, its concern for those uninterested teachers who wish to relax in nonworking areas is minimal: they can "simply leave the nonworking areas or otherwise ignore the organizational activities." Needless to say, the majority does not explain where these displaced teachers can go to take their breaks or eat their lunches, or how it is possible to ignore a large gathering of employees in a room that may be smaller than a classroom. I find the District's solution to the problem of balancing the access rights of employee organizations with the rights of individual employees to be much more reasonable. Employee organization representatives can meet with small groups of teachers in lounges, lunchrooms, or other nonworking areas. If 5Thus, two representatives can reach far more than six employees during a period of nonworking time; the majority exaggerates the limitations imposed by the District's rules. 33
they wish to address a larger group, they can make arrangements to use a classroom or other appropriate facility. The District, of course, must exercise good faith in making facilities available; it should not assign employee organizations to inconvenient locations unless there are no alternatives.6 However, if the District does act in good faith, its three-person rule maintains lounges and other nonworking areas as places available to all teachers while allowing reasonable access to employee organizations under section 3543.l(b). The District's rule requiring advance notice to secure a room for a large meeting is reasonable. But to the extent the rules require advance notice by off-campus organizers seeking to approach individual teachers or meet with small groups during nonworking time, they impose an unreasonable restriction on employee organization access. Finally, I believe the majority fails to address an important aspect of section 3543.l(b). This section differs 6There was some evidence in the record that one organizer had difficulties in obtaining rooms to meet with aides. The hearing officer did not address the issue of whether the advance notice rule was being applied in an unreasonablemanner, and I do not reach that issue here except to note thatthe District should not use reasonable rules (requiring employee organization meetings to take place in areas notnormally used by nonworking employees) to unreasonably restrict access (by being "unable" to find available rooms or finding rooms only in inconvenient locations). 34
significantly from the rules developed by the NLRB to govern union solicitation and distribution of literature in the private sector in that it allows nonemployees the right to come onto the work site to organize employees. 7 This additional factor changes the dynamics of on-site organizing, and, I believe, underlies many of the District's rules in this case. The majority apparently adopts the private sector view that an accommodation must be reached between the employees' right to organize and the employer's right to maintain discipline: [The Board must adjust] the undisputed rights of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Republic Aviation Corp v. ~LRB (1945) 324 U.S. 793, 798 [16 LRRM 620]. Yet the majority evidences no sensitivity to the EERA's more liberal access rule, which, by allowing outside organizers onto the work site, may raise additional employer disciplinary concerns that may necessitate a balancing of rights different than that reached in the private sector. For example, the District, despite knowledge that many teachers do not work 7compare section 3543.l(b) with NLRB v. Babcock & Wilcox Co. ( 19 5 6 ) 3 51 U • S • 10 5 [ 3 8 LRRM 2 001 ]-.- 35
during the twenty minutes before classes, may have chosen not to make an issue of that practice. Turning a blind eye to teachers talking among themselves is, however, very different than sanctioning the use of the time for organizational activities by allowing access to outside organizers. The latter, it seems to me, has a far more disruptive effect on discipline. Another example is the three-person conversation rule. Teachers normally have conversations among themselves in nonwork areas; such conversations can hardly be considered disruptive. But the presence of outsiders changes the dynamics of the situation: an outside organizational representative has a limited amount of time to persuade as many people as possible to join the organization. Naturally, that person's tactics are going to differ from the tactics of on-site employees who see each other every day and have regular opportunities to solicit support on a one-to--one basis. The outsider may try to address as many people at one time as possible, thereby monopolizing the nonwork area. The District's rule seeks to avoid this, not by preventing nondisruptive solicitations of small groups of employees, but by requiring that more disruptive organizational techniques take place in a separate area. I believe that this Board, in determining whether employer regulations are reasonable, must consider the interests of all participants in the organizational process--organizations, 36
employees, and the employer--and seek to reach an accommodation among them. The majority in this case is highly sensitive to the interests of employee organizations but demonstrates much less concern for the equally legitimate interests of uninterested employees and the District. While this is hardly surprising, given previous decisions by the majority, I nevertheless feel compelled once again to indicate my concern for the direction this Board is taking. 37 By: -Barbara D. Moore, Member
PUBLIC EMPLOYMENT RELATIONS BOARD OF THE STATE OF CALIFORNIA LONG BEACH FEDERATION OF TEACHERS, LOCAL 1263, AFT, AFL-CIO, Charging Party, v. LONG BEACH UNIFIED SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) ____________ ) Unfair Practice Case No. LA-CE-171 PROPOSED DECISION (6/ 2 /78) Appearances: Henry R. Fenton, Attorney (Levy, Koszdin,Goldschmid and Sroloff) for Long Beach Federation of Teachers Local 1263, AFT, AFL-CIO; Ted R. Huebner, Attorney (McLaughlin and Irvin) for Long Beach Unified School District. Before Ronald E. Blubaugh, Hearing Officer. PROCEDURAL HISTORY This case involves a challenge to the le.gality of various rules adopted by a school district to regulate the on-campus activities of employee organizations. The rules have a partic- ular impact on the ability of organizations to gain access to employees in order to solicit members. On August 24, 1977, the Long Beach Federation of Teachers, Local 1263, AFT, AFL-CIO, 1 filed an unfair practice charge against the Long Beach Unified School District. 2 The charge 1 Hereafter the Long Beach Federation of Teachers, Local 1263,AFT, AFL-CIO, will be referred to as tha "Federation." 2 Hereafter the Long Beach Unified School District will be referred to as thei. "District." -1-
in essence alleges that the District violated Government Code sections 3543.5(a), 3543.5(b), 3543.5(d) 3 4 and 3543.l(b) by: 1) Conducting secret and exclusive negotiations with and giving preferential treatment to the Teachers Association of Long Beach at a time when there was no exclusive represent- ative; 2) Rejecting a one-month leave of absence sought by a Federation member in order to work for the Federation while granting a reduced schedule to an officer of the Teachers Association of Long Beach; 3) Enforcing a leave policy which fixed the maximum amount of leave time for employee organization business in relation to the number of members in the organization, thereby 3 Government Code section 3543.5 reads as follows: It shall be unlawful for a public school employer to: (a) Impose or 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 exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. . (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. (d) Dominate or interfere with the formation or admin- istration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another. (e) Refuse to participate in good faith in the impasse procedure set forth in Article 9 (commencing with Section 3548). 4 Government Code section 3543.l(b) reads as follows: Employee organizations shall have the right of access at reasonable times to areas in which employees work, the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation, and the right to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of the rights guaranteed by this chapter. -2-
discriminating against the Federation because of its smaller membership; 4) Enforcing an organizational activity policy which illegally restricted the Federation's ability to solicit members. On September 23, 1977, the District answered the charge specifically denying each accusation of illegal conduct and alleging that the policies it had adopted were lawful. The parties held a settlement conference on September 27, 1977 but were unable to resolve the dispute. On October 5, 1977, the District made a motion to dismiss the charge. On October 11, 1977, the Teachers Association of Long Beach applied to join the action as a party and the request was granted on October 24, 1977. Prior to the start of the formal hearing on October 26, 1977, the parties again entered settlement negotiations and reached an agreement which led to a withdrawal of the first three allegations listed in the original charge. As a result of the agreement, the Teachers Association of Long Beach withdrew from participation at the hearing. The hearing was conducted in Los Angeles on October 26 and 27, 1977. The respondent's October 5 motion to dismiss and another oral motion to dismiss made at the hearing were both taken under submission for disposition in the written decision. -3-
FINDINGS OF FACT The Long Beach Unified School District is located in the city of Long Beach. The District has 54 elementary schools, 14 junior high schools, five regular senior high schools, one combination junior-senior high school and a continuation high school. These various schools occupy approximately 75 separate sites. In addition, the District has a number of child develop- ment centers, about five or six of which are located on sites separate from any other school. It is approximately eight miles between the Long Beach schools which are the farthest apart. There are 59,000 students, some 2,500 teachers and approx- imately 1,000 teacher aides within the District. At the time of the hearing, the Teachers Association of Long Beach had approximately 1,800 members and the Federation had between 225 and 250 members. Because of its large size, the Teachers Association had members at all District schools although there were some schools at which it had no building representative. The Federation had members in all the high schools and all but one of the junior high schools but there were many schools in which it had no members. On October 1, 1976, the District promulgated a series of administrative regulations which are the subject of the present action. The regulations were issued in a bulletin from William H. Marmion, coordinator of employee relations, to all District management and supervisory employees and to all employee 4-
organizations. The regulations set forth District rules relating to on-campus activities by employee organizations. Regulations relating to employee organizational activity had been in existence within the District since 1965 when they 5 were drawn up following passage of the Winton Act. Mr. Marmion testified that upon enactment of the Educational Employment Relations Act 6 he was requested by the District superintendent to revise and update the regulations. Early drafts of the revision were prepared in the fall of 1975 and the spring of 1976. A final draft was circulated among employee organizations for comment in September of 1976. The bulletin begins with a recitation of the applicable sections of the EERA followed by a statement of intent which provides in part as follows: .. The primary purpose of these regulations is to preserve a work climate in the district that will enable instructional and support service staffs to accomplish thejob tasks for which they have beenemployed . In general, the bulletin sets forth these restrictions which are under attack by the Federation: 1) A prohibition against all soliciting and other organ- izational activities during duty hours which, in the case of teachers, includes the 20 minutes prior to a teacher's first assigned class and the 20 minutes after the last assigned class; 5 Former Education C sec. 13080 et seq. 6 Government Code sec. 3540 et seq. -5-
2) A requirement that all organizers who do not work at a particular campus receive an identification card from the District Office of Employer Relations prior to visiting a campus on organizational business; 3) A prohibition against a visit by more than two repre- sentatives of an organization to a particular campus on a single occasion; 4) A prohibition against an organizational representa~ tive meeting with more than three employees at a time in a school work room, lounge, lunchroom or similar area; 5) A requirement that off-campus organizers register at least one day prior to visiting a school, and that all organizers register at least one day prior to conducting a meeting with four or more persons. 6) A prohibition against the distribution of materials to employees except under limited circumstances. By the date of the hearing, the Federation had been involved in two organizing efforts which allegedly were hampered by the District policy. In the spring of 1977 there was an organizing effort from March through June which was aimed at instructional aides. In the fall of 1977, the Federation conducted another organizing effort aimed at teachers in the Distr t's child development centers. The various rules in the Dis ict policy work together and in some measure it is difficult to discuss them separately. Nevertheless, it seems clear that the rule which consistently -6-
presented the most difficulty for the Federation was the prohibition against solicitation during the workday. The rule reads as follows: Employee Association Business---All activities concerning association business, as defined, shall be conducted outside [emphasis in original] duty hours of the workday for the individuals involved. All association business when on district property shall be conducted away from students and other non-employees. (Example: No association business shall be conducted during such events as PTA or Advisory Council meetings, Open Houses, etc., or in the presence of VIPS or other non-employees.) As applied to teachers, the rule is a good deal more expansive than a mere prohibition against organizational activity during the hours of preparation and instruction. Mr. Marmion testified that "duty" time for teachers means the 7 same as "workday." The rule is not limited solely to work 7The District policy defines the term "workdays" as follows: Teachers (includes Math/Reading Specialists)--Normally, the teacher's workday extends from 20 minutes before the first assigned period to 20 minutes after the last assigned period; including class, conference, and preparation periods. [Emphasis in original.] (Kindergarten teachers have the same workday as other elementary teachers. Elementary teacher-librarians work a 7-hour day.) It also includes additional related service time such as after school and evening supervision of student body activities and other extra-curricular duties. Other Employees--All other regular full time employees have an eight-hour day, exclusive of a lunch period. Nutrition and Lunch--No part of the duty-free nutrition and lunch periods (except for passing time supervision of students when assigned) is considered to be duty time. Child Development Center and Other Part-time Employees-- Meetings for these employees may be arranged at work sites so long as they do not conflict with the individual employee's duty time and do not disrupt the work function of employees still on duty. -7-
hours. No organizational activity is allowed during the 20 minutes prior to the start of a teacher's first class and the 20 minutes after the completion of a teacher's last class. The 20-minute restriction removed from Federation organ- izers two of the time periods when teachers are most accessible. Under District policy, teachers are required to be at school 20 minutes prior to the start of their first class and to remain at school until 20 minutes after the completion of their last class. During the two time periods, teachers can be assigned various duties and some teachers are required to supervise students just before and just after the school day. The decision on whether to assign duties during those two 20-minute periods is left to the. discretion of local school administrators. It is clear that many, if not most, teachers have no assigned duties during the two 20-minute periods. It was the uncontradicted testimony that at the high schools, it is relatively rare for a teacher to have duties assigned during the 20 minutes either before or after school. At the junior high schools, a small percentage of the faculty on a rotating basis is assigned to watch students outside and at the bus lines. Even at the elementary school level, according to uncontradicted testimony, there always are a number of teachers in the teacher's lounge until just before the start of class. During the time after school, there occasionally is a fa ty meeting which teachers must attend but it also is common that many teachers leave school before the 20 minutes has elapsed. -8-
According to the testimony, the teachers' parking lot at Long Beach Polytechnic High School is more than half empty by the time 20 minutes have elapsed after school. The problem presented by the rule was illustrated by an experience of Robert Ciriello, a District teacher who took a brief leave of absence to organize for the Federation. He said he went one day to the Carver Elementary School to speak to teachers. He arrived prior to the start of the school day but was not permitted to go immediately to the lounge, even though it was earlier than the 20-minute prohibition period. He said the principal detained him until she could call the District headquarters and verify that it was all right for him to speak. Mr. Ciriello said the verification process took about 10 minutes which put him close to the 20-minute prohibi- tion period. The principal escorted him to the lounge, announced that he was from the Federation and said that anybody who wanted to leave could do so. She then stood nearby while he spoke to teachers individually and cut him off in mid- sentence when it became 20 minutes prior to the start of the first class. Although on its face the 20-minute rule applies only to teachers, it also hampered efforts of a Federation organizer to talk to instructional s. The organizer, Barbara Ribar, was a former instructional aide who tr d to solicit members for the Federation from March through June of 1977. She testified that she consistently was told that the 20-rninute -9-
rule applied to instructional aides. This made personal contact with aides most difficult. The aid~s typically work 15 hours a week. Many of them are college students whose work hours are scheduled around their classes. Some aides work in the morning, some in the middle of the day and others in the late afternoon. Unlike teachers, aides are not required to be present 20 minutes before their first class or remain until 20 minutes after their last class. As a result, many of them did not arrive until five minutes early. Aides do not have a lunch period and Ms. Ribar said she was prevented from talking to them during recess, even if they had no duties during this time. For the most part, therefore, aides were unavailable to her. The 20-minute rule was not applied to teachers in the child development centers and Federation organizers were allowed to meet with them just before or just after work, during lunch or while teachers were on a 15-minute break. The District's identification card rule requires an out- side representative of an employee organization to produce a D trict-issued identi cation card before conducting organiza- tional activities at a school or other work site. The rule provides as follows: When an association wishes to pursue employ- ment matters with employees but does nothave any dis ct employees as members and/or has not applied for recognition as a verifiedassociation, its representative must apply to the district's Office of Employee Relations(Board of Education Building, 701 Locust Ave.) -10-
for approved identification cards and/or verified association status.8 Upon proper presentation of credentials, such representative of an association will be issued identification cards withoutdelay and will be authorized access to district sites for the purpose of arranging meetings with employees. Any person from a verified or non-verified association who is not an employee assignedto a district site being visited must present a proper identification card as issued by the Office of Employee Relations to the respective manager or supervisor. Such persons will be required to sign in at the main office, state their business and where they can be reached, and sign out upon the completion of the visit. Normally, nomore than two representatives from the same association will be permitted at a site for a single visit. Federation representatives without identification cards encountered substantial delays. Ms .. Ribar visited about 25 schools prior to receiving her card and was delayed about 15 to 25 minutes at each school while school officials telephoned 8As used in the District rules, a nverified 11 organization is defined as: . any employee association which wished to be acknowledged by the Board of Education for the purpose of representing members and of qualifying for dues deduction privileges prior to the selec- tion of an exclusive representative. Those who represent verified associations including dis t employees and non-employees will be issued identication cards by the Office of Employee Relations tobe used in making contacts to district schools and offices. -11-
9 the District office to get approval for her visit. This problem of delays limited the Federation's flexibility in deciding how to use workers who suddenly became available but who did not have identification cards. Mr. Marmion testified that the purpose of the identification card is to control access to school grounds by outsiders. He said that any visitor to a school site is expected to report to the office and state the purpose of the visit. Persons who fail to do so are subject to removal from school property. Moreover, he said, a person carrying a District-issued employee organization card has been advised about the contents of the District regulations. He said the relationship between school managers and organization representatives goes more smoothly if the representatives know the content of the regulations. The restriction on the number of organization representatives who can visit a school site at any one occasion presents a problem for the Federation at large schools. The Federation's president, Mr. King, testified that the number of teachers at individual school sites ranges from eight to about 120. He said that at the high schools and other larger sites there are a number of lounges and various places where teachers go to eat. 9 There is a conflict in the evidence about why it took so long for Ms. Ribar to receive an identification card. However, inorder to decide the issues presented in this case it is notnecessary to determine whether Ms. Ribar's card was held up because the Federation failed to apply for it or the Districtfailed to issue it. -12-
Two organizers simply cannot contact persons spread all over a campus during a half-hour lunch period. Mr. Marmion testified that it might be possible to have more than two organizers on a site, depending on the circumstances. He said that would have to be worked out in consultation with the principal of the site. However, he said, the Federation had never asked to use more than two organizers at a school. The District's three-person conversation rule and its prior room arrangement rule are interwoven. The regulations, which appear in Section V-D of the bulletin, read as follows: Association or Personal Business with Individual Employees-- An association representative who is not employed at the site may meet privately with up to three individual employees during non- duty hours in a lounge, workroom, lunch- room, or other similar area so long as the conversation will not disrupt or interfere with others. The lounge or other area may be specified by the site manager or supervisor. Association Business with Groups of Employees-- When it is anticipated thatassociation business is to be conducted informally or formally with a group of four or more employees, room arrangementsmust be made at least one day in advance of the meeting. The request for access must be made to the site manager or supervisor and shall include the specificdate, time, and size of a facility requested. The principal or office head will evaluate the request and normally authorize use of facilities while mindful of the district's need to balance fairly the rights of all employees, of other associations, and of the district self. Failure to make arrangements in advance shall be grounds for prohibiting any such meetings at the site. -13-
Notices of Meetings-- The association shall prepare and post notices of meetings involving association business matters so that all employees may be aware of them. In a memorandum dated October 22, 1976 to all principals and office heads, Mr. Marmion clarified the prior arrangement rule to cover both informal meetings with up to three employees and the more formal meetings with groups of four or more. Thus, an off-campus representative must make arrangements at least one day in advance in order to meet with employees either privately, in groups of up to three or in large meetings. Organizers who work on campus have slightly more flexibility. They apparently can meet on an informal basis with groups of up to three employees without prior registration. However, even on-campus representatives must make advance registration 10 if they want to speak to four or more employees. his testimony, Mr. Marmion cited Section IV-B of the bulletin as authority for this requirement. It provides as follows: IV. Approved Association Activities by Employees The following activities may be conducted by employees who work at a site during non-duty hours as established and understood by the site manager or supervisor and the affected employee(s): B. Communicating on association business matters with not more than three employees on an informal bas in lounges, workrooms, lunchrooms, or other areas where employees ordinarily gather. NOTE: Employees engaged in such conversations shall refrain from disrupting or interfering with other district employees who are otherwise engaged and who do not wish to be a party to the discussion on association matters. \Jhere a discussion between individuals becomes a small group meeting, arrangements must be made for an alternate meeting place as per section V., paragraph D. of this bulletin. [Section V-D is reproduced above.] -14-
The purpose of the three-person conversation rule, according to Mr. Marmion, is to prevent disruption of employees who are not interested in listening to the organizer. Under the rule, organizers who wish to speak to larger groups are required to register in advance for a separate facility where they can speak and not disrupt those who do not wish to listen. The prior registration rule has presented various problems for Federation organizers. It was the consistent experience of Federation organizers that a meeting room could not be secured by simply making a telephone call a day in advance. There was frequently a difficulty in reaching a person at the school who could authorize a room. Often, the school simply did not have an extra room. Ms. Ribar contacted 70 schools during her efforts to organize the instructional aides. At every school she was told she could not talk to the aides without advance arrangements and although she never called with fewer than three days notice she was able to secure a meeting room in only three schools. At Franklin Junior High School she contacted the principal five times and five times was told there was no room available and if one became available he would not know until 15 minutes before she wanted to meet with the aides. At one of the three schools where she was successful, access to the room was hampered by a detour caused by the painting the doors. At another school she was placed in a bungalow in a remote part of the campus. At the third school she placed leaflets announcing her -15-
meeting in the mailboxes of two teachers but they were never distributed and no aides attended the meeting. Aside from the problem of getting a room, the en~ire process of advance registration presented a serious handicap to the Federation's ability to make rapid decisions on the use of available organizing help. Mr. King testified that the decision about where to send various persons often could not be made in advance because it depended upon what had happened the day before. Yet with the advance registration rule, the Federation was committed to make prior registration or be barred from a campus. The District's rule on the use of mailboxes and bulletin boards provides as follows: Site Mailboxes and Bulletin Boards-- Association representatives who are employees of the district may distribute materials to employees during the employees' non-duty hours or may place materialsin employee mailboxes. Also, materials may be posted on employee bulletin boards designed for associations. Association representatives who are not district employees may distributematerials in mailboxes during hours when schools and offices are regularly open and may distributematerials to district employees during the district employees' non-duty time. Conditions-- Materials distributed or posted must be properly identified as to source and must not be distributed in such a way as to interfere with classroom instruction, regular district routines, or conditions of cleanlinessor safety. Notices should be posted for no more than 15 workdays and must not include campaign material related to municipal, state, or national elections; statements or other written materialcontaining implications of a derogatory or unprofessional nature relating to any person; statements that will be disruptive to the siteoperation; or discussion of personnel problems or grievances with reference to specific cases. Materials that do not meet these regulations willbe withdrawn from circulation until such time as corrections are made. -16-
The Federation encountered a considerable amount of difficulty in attempting to distribute literature to the instruc- tional aides. Ms. Ribar testified that some principals tried to prevent her from distributing literature to aides during the 20 minutes immediately prior to the start of an aide's day. Sh~ said she was told she could distribute literature to aides only by leaving it in the school office. Because aides do not have mailboxes, there was no convenient place she could leave Federation materials. At some schools she was allowed to put materials in the mailboxes of teachers who used instructional aides on the hope that the teachers would then pass the material onto the aides. About one-fourth of the schools had books where aides were required to sign in each day. At those schools, she left the literature by the sign-in books. At other schools, she had to leave the literature with the principal's secretary. Ms. Ribar testified that she left literature on the office counter at the Burnett Elementary School. When she returned to the school two hours later she saw the secretary removing the literature from beneath the counter just as she arrived. She testified that at Lincoln School the principal would not allow distribution of the literature because he was not sure it had been approved by the District. Mr. Marmion testified that he had given verbal rectives to the pr ipals that literature for the aides could be placed either in the mailboxes of the teachers who worked with aides or on the office counter near the sign-in sheets for aideso He said he received no complaints from the Federation about difficulties in distributing the literature or in obtaining meeting rooms. -17-
LEGAL ISSUES Whether either by adoption or implementation of the regula- tions the District has: 1) Violated Government Code section 3543.S(b) by denying the Federation rights guaranteed to it by the EERA? 2) Violated Government Code section 3543.S(a) by imposing or threatening to impose reprisals on employees, discriminating or threatening to discriminate against employees or otherwise interfere with, restrain or coerce employees because of their exercise of rights guaranteed by the EERA? 3) Violated Government Code section 3543.S(d) by dominating or interfering with the Federation or contributing financial or other support to an employee organization or encouraging employees to join any organization in preference to another? CONCLUSIONS OF LAW Initially, it should be noted that the Federation does not attack -- and this proposed decision does not consider -- all the provisions of the October 1, 1976 bulletin. In the case of some of the rules, it is not the wording but the application which is under attack. ' 11 Under Government Code section 3543.l(b), the Federation has the right of access to areas in which employees work and the' right to use various means of communication with employees 0 This right of access is limited to "reasonable times" and the code section gives the District the right to write "reasonable" regulations to implement the access procedure .. 11 See footnote No. 4, supra. -18-
If the Federation has requested access to District employees at "reasonable times" and the District has refused, the District will have denied the Federation a right guaranteed to it by the 12EERA, thereby violating Government Code section 3543.S(b). Similarly, if the District has adopted an access regulation which is unreasonable, the District will have violated the EERA. The Public Employment Relations Board has yet to consider the meaning of "reasonable time" and "reasonable regulation" in a case. However, a considerable body of precedent about employee organization access has developed under the National Labor Relations Act. Under the federal law, employees have the right 13to join and participate in the activities of labor organizations. It is an unfair labor practice for an employer to interfere with, restrain or coerce :employees in their exercise of this right or to d iscourage . memb ers h.ip in . any 1 a b or organization._l4 · · Under these 12see footnote No. 3, supra. l3In Section 7, the National Labor Relations Act provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). 14section 8(a) of the NLRA provides, in part, as follows: Sec, 8. ( It 1 be an unfair labor pract for an employer-- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organiza- tion: Provided That. -19-
provisions in the federal law, the National Labor Relations Board and the federal courts have found it unlawful for an employer to adopt blanket restrictions against employee organ- izational activity, It is clear under federal precedent that an employer generally can prohibit solicitation for union membership during the hours employees actually are working. But the employer ordinarily may not prohibit union solicitation during such nonworking times as rest breaks and lunch, Employer rules which apply only to non- working periods are presumed valid while rules which apply to both working and nonworking hours are presumed invalid, Peyton Packing Co. (1943) 49 NLRB 828 [12 LRRM 183] enf'd. 142 F.2d 1009 (5th C.Ao) [14 LRRM 792] as cited by the United States Supreme Court in Republic Aviation Corp. v. NLRB (1945) 324 UoSo 793 [16 LRRM 15 620)0 15 Quoting from Peyton Packing, the Supreme Court wrote in Republic Aviation: The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer topromulgate and enforce a rule prohibiting union solicitation during working hourso Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purposeo It is no less true that time outsideworking hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company propertyo It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, althoughon company propertyo Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circum- stances make the rule necessary in order to maintain production or discipline. -20-
In more recent decisions, the NLRB has refined the presump- tions to distinguish cleanly between employer rules which prohibit solicitation during "working hours" and those which prohibit solicitation during "working timeo" In Essex International, Inco (1974) 211 NLRB 749 [86 LRRM 1411] the board held that the term "working hours" generally is understood to mean the entire period of time between when an employee begins and completes a shifto Because a rule prohibiting solicitation during "working hours" would extend the ban through lunch and rest periods, it is presumed illegaL The board held that the term "working time" generally is understood to mean only that portion of a shift when an employee actually is workingo Because a rule prohibiting solicitation during "working time" would exclude lunch and rest periods, it is presumed legaL See e.g., Groendyke Transport, Inc. (1974) 211 NLRB 921 [86 LRRM 1636] enf'd.530 Fo2d 139 (10th C.A.) [91 LRRM 2405] o Where an employer's no solicitation rule is presumptively invalid, the employer bears the burden of producing evidence to demonstrate that the rule is necessary to maintain order, discipline and production. Walton Manufacturing Company (1960) 126 NLRB 697 [45 LRRM 1370] enf'd, 289 F.2d 177 (5th C.A.) [47 LRRM 279L!-]. See also the partial dissent of Member Fanning in Tri-County Medical Center (1976) 222 NLRB 1089 [91 LRRM 1323 at 1325]0 In addition to lunch and rest periods, employees also are entitled to engage in organizational activity during the time they spend on the company's property prior to the start of a work -21-
shift and following the completion of a shifto Employer rules which prohibit solicitation during these time periods are presumed to be invalid and an employer with such rules must produce justi- fication or be found in violation of the federal lawo John Ascuaga's Nuggett (1977) 230 NLRB Noo 43 [95 LRRM 1298]; Contra Costa Times (1977) 228 Noo 71 [96 LRRM 1019]; Barney's Club, Inco (1976) 227 NLRB No. 74 [94 LRRM 1444]; Blue Cross (1975) 219 NLRB 1 [90 LRRM 1063] o Even though the employer ordinarily cannot prohibit employees from soliciting their fellow workers during nonworking periods, the employer may be able to restrict the solicitation to nonworking areaso Meir & Frank Co. (1950) 89 NLRB 1016 [26 LRRM 1081]; May Department Stores (1944) 59 NLRB 976 [15 LRRM 173] enforced as modified 154 Fo2d 533 [17 LRRM 985]0 If the solicitation is accompanied by the distribution of literature, federal precedent frequently supports an employer's requirement that the activity be conducted in a nonworking areao In Stoddard-Quirk Mfg. Co. (1962) 138 NLRB 615 [51 LRRM 1110] the NLRB sustained a rule which prohibited distribution of literature in working areas even during nonworking time. The NLRB reasoned that the distribution of literature reasonably could be thought to create a litter This reasoning has been followed in a number of more recent caseso Bankers Club, Inco (1975) 218 NLRB 22 [89 LRRM 1812]; Seng Go. (1974) 210 NLRB 936 [86 LRRM 1372]; McDonald's Corp. (1973) 205 NLRB 404 [84 LRRM 1316]; but compare McBride's of Naylor Rd. (1977) 229 NLRB No. 120 [95 LRRM 1196]. -22-
Wbile federal precedent protects employee organizers who solict during nonworking hours in nonworking areas, nonemployee organizers have far fewer rights. Employers validly may post their property against nonemployee distribution of literature if reasonable alternative channels of communication are available and the employer does not discriminate against the union by allowing other distribution. NLRB v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [38 LRRM 2001]. Under precedent from both the California Supreme Court and the PERE, it is appropriate that the Long Beach access regulations be analyzed in light of these federal decisions. Fire Fighters Union v. City of Vallejo (1974) 12 C.3d 608 [116 Cal.Rptr. 507]; Pajaro Valley Education Association (5/22/78) PERE Decision No. 51; Sweetwater Union High School District (11/23/76) EERB Decision No. 4. The Prohibition Against Duty-Hour Solicitation The District rule provides that ''all activities concerning association business ... shall be conducted outside duty hours of the workday for the individuals involved." In its attack on the rule, the Federation relies heavily on NLRB and federal court precedent. The Federation argues that while on its face the rule would appear to prohibit organizational activities only during working periods, the prohibition in practice extends beyond that. The Federation notes that in application the prohibition includes the 20 minutes before a teacher's first class and the 20 minutes after a teacher's last class. The Federation notes that while all teachers are required to be present during those time periods, most teachers have no assigned duties during those periods. Many employees spend that time in lounges or doing -23-
what they wisho Relying on Essex International, supra, 211 NLRB 749, and related cases, the Federation argues that the District has applied the rule to cover nonworking periods and it therefore is invalido The District argues that the 20-minute periods are working time for teachers and a ban on organizational activity during that time is lawful under the federal precedento The District reasons that the length of time teachers must be present on campus prior to school in order to prepare for class is a matter of discretion for the board of education, citing as authority, Robinson Vo Sacramento City Unified School District (1966) 245 CaloAppo2d [53 CaloRptro 781] and Warner Vo City of Los Angeles (1965) 231 Cal.App.2d 904 [42 CaloRptro 502]0 It should be noted that the Federation makes no attack on the District's rule that teachers must report to school 20 minutes prior to their first class and remain until 20 minutes after their last classo The dispute in the present case does not involve the discretion or flexibility of the District in determining such matterso The dispute is about whether the District can prohibit employee organ ation activity during those two 20-minute periods, if it can be shown that the periods are nonworking timeo On its face, as the Federation suggests, the policy seems to be in conformity with federal precedento But its application has been too broado It is undisputed that the policy is used to ban all solicitation efforts during the 20 minutes before a -24-
teacher's first class and the 20 minutes following the last classo Clearly, some teachers are working during the two 20- minute periods and the policy properly may be applied to themo Teachers who are on yard duty or bus patrol, or who are in their classrooms preparing for students, are working and the District may lawfully ban efforts to solicit themo However, there is uncontradicted evidence that a number of teachers spend all or part of the two 20-minute periods in the teacher lounges, drinking coffee and conversing with each othero Plainly, those teachers in the lounge are not working. The very nature of spending time in the lounge suggests that the teachers so occupied are on a rest break. The rule is unreasonable insofar as it prohibits efforts to conduct organizational activity among teachers who are not working and who are in nonworking areas during the 20-minute periods before and after school. In the case of the instructional aides, the rule has been applied to prevent efforts to contact them during their rest breaks and during the 20-minute periods before and after their workday. Instructional aides are not required to be present at school 20 minutes before their first class and they are not required to remain at school until 20 minutes after their last classo It is not reasonable, under NLRB precedent, for the District to ban organizational activity at times completely outside an employee's workday. It is concluded, therefore, that the Federation had a right of access to District teachers who were not working and -25-
who were in nonworking areas during the 20 minutes before their first class and the 20 minutes after their last class. In addition, the Federation had a right of access to all instructional aides who were present at school before or after their work shift and to those instructional aides who had rest breaks during the day. Because the District employed the 20- minute rule to deny the Federation access to nonworking employees, the District is found to be in violation of Government Code section 3543.S(b). The Federation does not challenge the prohibition against organizational activity in the presence of students and non- employees and the legality of that rule is not considered in this proposed decision. The Identification Card Rule Under the District policy, Federation organizers who do not work at a particular campus must have a District-issued identification card in order to conduct organizational business on that campus. The Federation argues that the identi cation card rule constitutes "a direct res ction upon solicitation during nonworking hours" and is therefore invalid under Republic Aviation Corp., supra, 324 U.S. 793. The Federation reasons that the Dis t 1 s interest in identifying persons who arrive on the campus can be achieved satisfactorily by requiring an organizer to provide any valid identification. -26-
The District argues that to require an identification card for non-site employees "not only is rational by the dictates of common sense [but] it would be a dereliction of duty for the Dist ct not to do so. 11 The D t ct argues that it is entrusted with the responsib ity for the proper and safe administration of its schools and it would be irrational to suggest it improper for a school to require a stranger to register at the office. Under NLRB v. Babcock and Wilcox Co., supra, 351 U.S. 111, a nonemployee organizer has no automatic right of access to an employer's property. However, California law is different because Government Code section 3543.l(b) provides that an employee organization has the right of access to a school. In Government Code section 3540.l(d) the term "employee organization" is defined to "include any person such an organization authorizes 11 to act on its behalf. 16 Without·doubt, an off-campus organizer, including a nonemployee, fits within this definition. Thus, Federation representatives have a statutory right of access to school grounds. 16 Government Code section 3540.l(d) provides as follows: 3540.1. As used in this chapter: (d) "Employee organization" means any organization which includes employees of a public school employer and which has as one of its primary purposes representing such employees in the relations with that public school employer. "Employee organization" shall also elude any person such an organization authorizes to act on its behalf.
But there are competing considerations. The District has the statutory obligation to protect students and to insure that strangers not disrupt school premises. School authorities are given considerable power to exclude persons who have no legitimate business on school grounds 17 and it is a misdemeanor for a person who has been requested to leave a school to refuse to do so. 18 It is not unreasonable, therefore, that employee organization representatives be required to identify themselves when they enter a school and to produce documentation of their identity. However, as the Federation argues, the District's "interest in identifying organizers for the union can be achieved just as easily by requiring any valid identification when the organizer arrives on the school premises . II The problem with the District's process is that it contains inherent delays. Some period of time must pass between when application is made and a District-issued identification card is received. Because of this built-in delay, the Federation is not able to use the services of an organizer who might become suddenly available but who has no District-issued identification card. The D ct can protect its interests by insisting that Federation organizers produce satisfactory identification before going onto a school campus .. For example, the combination of a driver's license and a Federation identification card should be suffi- cient to satisfactorily demonstrate the identity of any Federation 17S ee Education Code sections 32211 and 44810. 18s ee Penal Code section 626.8. -28-
organizer. By requiring such a combination of documents, the District could meet its need to keep strangers off a school ground and the Federation could meet its need of obtaining access to employees without delay. If the District desires, it could continue to offer a special identification card for organization representatives who wish it. But a requirement that all organization representatives have such a card is an impediment to the Federation which satisfies no District need that cannot be met with less difficulty for the organization. It is concluded that the requirement that an employee organization representative have a District-issued identifica- tion card inhibits the access of an employee organization to a school facility. The identification card requirement is therefore found to be in violation of Government Code section 3543. 5 (b). The Limitation on Organization ~epresentatives The District rule provides that "normally, no more than two representatives from the same association will be permitted at a site for a single visit." According to the evidence, the limitation of two organizers presents a problem at large schools which have as many as 120 faculty members. the hearing, Dis ct cated at it might be possible for more than two organizers to visit a large school, depending on the circumstances. The Federation argues that the limitation to two organizers lacks the flexibility which is required by the PERB in Magnolia -29-
Educators Association v. Magnolia School District (6/27/77) EERB Decision No. 19. The Federation contends that the regulation is a continuing violation which has a cooling effect upon the rights of the Federation to engage in organizational activities. The District describes the Federation's contentions as "make weight" and argues that Magnolia is inapplicable because it relates to release time. Moreover, the District observes that the regulation provides that "normally" only two repre- sentatives will be allowed because in a small school two representatives could handle the task. However, the District continues, there is clear evidence the District would be flexible in allowing more than two representatives on a larger school site. Government Code section 3543.l(b) assures employee organiza- tions of the right of access to school facilities "at reasonable times" subject to "reasonable regulation" by the employer. Both parties have reasonable competing interests in any limita- tion on the number of employee organization representatives who visit a campus. The employee organization wants to put enough organizers on the campus to reach all of the teachers in the time available. The District wants to prevent any disruption of its educational program which could be caused when a large number of outsiders descend on a campus to engage organizing. In actual practice, the parties do not appear far apart on this matter. The Federation's only complaint about the rule is its application to the high schools and large schools, -30-
generally. The District agrees there is room for flexibility at the larger schools. On its face, the rule is not unreasonable. It sets the two-organizer limitation as the "normal" restriction. The implication on the face of the rule is that in some circum- stances the District will allow more than two organizers. In testimony at the hearing, the District stated that the rule is flexible. There is no evidence about how the rule actually is implemented because the Federation never asked to have more than two organizers on a particular campus at one time. Because the rule is reasonable on its face, a violation of the EERA could be found only if the rule were implemented in a manner that is not reasonable. By the date of the hearing, it had never been tested because the Federation had never attempted to place more than two organizers on a large campus. If the District were to apply the rule inflexibly so that it is never possible for an employee organization to have more than two organizers on a campus at one time, no matter what the circumstances, that likely would be a violation. However, there is no evidence of such inflexibility. It is concluded, therefore, that the two-representative rule is reasonable and the District did not violate Government Code sect 3543.S(b) by adopting it. The Three-Person Conversation and Prior Arrangement Rules The Dis t' s rule about number of persons with whom an organizer can speak and the rule about advance registration for a facility are complicated and difficult to understand. I In essence, they provide as follows: 1) An organization representative meeting informally with employees in lounges, workrooms, lunchrooms and similar areas -31-
may speak with no more than three employees at a time; 2) The District will provide a room or other facility, depending upon availability, to an employee organization representative who wishes to speak with four or more employees simultaneously; 3) Organization representatives who do not work on a particular campus must make arrangements at least one day in advance in order to speak with employees on that campus, regardless of whether the meeting is to be with small groups of up to three or larger groups of four or more in a prearranged facility; 4) Organization representatives who work on a campus must make arrangements at least one day in advance in order to speak to a group of four or more in a prearranged facility. The Federation argues that the three-person conversation rule must fail under both PERB and federal precedent. Citing Magnolia, supra, EERB Decision No. 19, the Federation argues that the District's rule is inflexible and "does not take into account private conversations . which are in no way disruptive of the privacy . of other employees." Under federal precedent, the Federation continues, even a showing that conversations with four or more employees are necessarily noisy would not be sufficient justification for the rule. The Federation cites various NLRB cases involving solicitation rules at hosp als 19 in support of this argument. 19The Supreme Court has granted certiorari in one of the hospital cases. NLRB v. Beth Israel Hospital, cert. granted 46 L. W. 3446, 3453. In NLRB v. Beth Israel Hospi~ the NLRB found invalid a hospital rule which prohibited solicitation and distribution of literature patient areas. -32-
The District contends that the three-person conversation rule is a legitimate restriction. The District argues that employees have the right to refuse to participate in organiza- tional activities and the rule protects that right. The District argues that it has adopted regulations to protect teachers in faculty rooms and lunchrooms in accord with the requirements of the California Supreme Court. Los Angeles Teachers Union v. Los Angeles City Board of Education (1969) 71 Cal.2d 551 [78 Cal.Rptr. 723). 20 As for the prior arrangement rule, the District argues that only Ms. Ribar had difficulty securing a room and the District attributes that difficulty to Ms. Ribar and not the policy. In those cases where rooms were not available, the District argues that it had no obligation to provide other arrangements. By adoption and enforcement of these policies, the District seeks to vindicate its interest in protecting employees who do not wish to be bothered by organizational solicitations and to insure that the educational program is not disrupted. The Federations competing interest is to obtain access to District employees in the easiest manner possible. Almost without doubt, the District can adopt a regulation prohibiting meetings which are disruptive or which terfere with employees who do not wish to take part. Moreover, it is 20As noted by the Federation in its reply brief, this case offersthe District no solace. Indeed, the case might be read as a strong indication that the District's regulations violate the basic First Amendment rights of District employees. -33-
almost without doubt that the District can require any organiza- tion to register in adyance in order to use a District room or other facility for a large meeting. School facilities are for teaching and any other use must be scheduled around use for instruction. But the rules which the District has adopted go far beyond those requirements. Under the District's approach, all organiza- tion representatives who do not work on a campus must give at least a one-day notice before appearing on campus. While advance notice is justifiable if an organization desires to obtain a room, no justification was given for why an organization must register in advance in order to meet quietly with employees who are on a rest break and in a nonworking area. Since no facilities are required, there is no scheduling problem which the District must try to solve. The rule simply stands as an impediment for an organization like the Federation which must rely heavily on visits by persons who do not work at a particular school site. Likewise, there was scant justification given for why conversations are restricted to three employees at a time. It is not demonstrable that a conversation with four persons or five persons cannot be quiet and nondisruptive. It is legitimate to require that the organizing be nondisruptive. But the District's artificial restriction on conversations to a maximum of three employees at at presents an unreasonable impediment to access. It is concluded that the District's three-person conversa- tion rule is an unreasonable limitation on an organization's access to employees. It further is concluded that the District's -34-
one-day advance registration requirement for organizational representatives who do not work on a campus is an unreasonable limitation on an organization's access to employees. However, it is concluded that the District may prop~rly require advance registration bz any organization desiring to have a District facility set aside for its exclusive use. Restrictions on the Distribution of Literature The District's rule on the distribution of literature allows employees to distribute materials during "non-duty" hours. Organization representatives who are not employees may stribute literature to employees during non-duty hours of the employees to whom they are distributing materials. Non-employees also may place materials in employee mailboxes at any time during business hours. The Federation argues that regardless of the policy's wording, the District implemented the rule to block distribution of materials by Ms. Ribar to the instructional aides. The District responds that the failure in distribution of the materials lies with the Federation. On its face, the rule presents some ambiguity. It is not clear whether the rule bans employee distribution of literature at all times during the work day or merely bans distribution during times when employees actually are working and permits it during rest breaks. Likewise, it is not clear whether non- employees are prohibited from distributing literature to employees at all times during the work day or just during those -35-
times while employees are working. Under Essex International, supra, 211 NLRB 749 and related cases, the District may not prohibit the distribution of literature in nonworking areas while employees are on rest breaks or at lunch. An employer may ban the distribution of literature during work times and, under some circumstances, may ban distribution at all times in work areas. The evidence suggests that the rule was enforced so as to impede Ms. Ribar's distribution of literature at all times and all places. By the District's application of the 20-minute rule Ms. Ribar was precluded from directly distributing litera- ture to aides at all but three campuses. On many campuses she was hindered in her efforts to place literature in locations where aides could receive it. Because of the ambiguity in the wording of the rule and because of the manner in which it was enforced against Ms. Ribar, it is concluded the rule is an invalid restriction on an employee organization's right to distribute materials. Alleged Violations of Government Code Sections 3543.S(a) and 3543.S(d) In its original charge the Federation accused the District of violating Government Code sections 3543.S(a) and (d). These contentions were consistent with the allegations made by the Federation in that original charge. However, prior to the start of the hearing the Federation withdrew the factual allegations which were consistent with -36-
subsection (a) and (d) violations. In its briefs, the Federation argues that the District's conduct denied rights guaranteed by Government Code section 3543.l(b), the provision listing rights assured to employee organizations. This would be consistent with an argument that the District violated Government Code section 3543.S(b), the provision making it an unfair practice to deny an organization rights guaranteed to it under the EERA. There is no evidence consistent with a violation of Government Code sections 3543.S(a) or 3543.S(d) and in its brief(s) the Federation does not discuss a theory for how the District's conduct might have been in violation of those sections. There~ fore, it is concluded that the Federation has failed to prove any violation of Government Code sections 3543.S(a) and 3543.S(d). Accordingly, the allegation that these sections were violated is hereby dismissed. THE REMEDY It is appropriate that an order be issued to the District that it cease and desist from enforcing those regulations which are in violation of the Federation's right of access to employees. Such an order is in accord with Government Code section 3541.S(c) under which the PERB is given: the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. -37-
It is clear that unless the District is directed to cease enforcement of certain of its rules, employee organizations will continue to have difficulty in gaining access to District employees. It also is appropriate that the District be required to post a copy of this order. Posting of the order will provide employees with notice that the District has acted in an unlawful manner and is being required to cease and desist from this activity. It effectuates the purposes of the EERA that employees be informed of the resolution of this controversy. A posting requirement has been upheld in~ California case involving the Agricultural Labor Relations Act, Pandol and Sons v. ALRB and UFW (1978) 77 Cal.App.3d 822. Posting orders of the NLRB also have been upheld by the United States Supreme Court, NLRB v. Empress Publishing Go. (1941) 312 U.S. 426 [8 LRRM 415]; Pennsylvania Greyhound Lines, Inc. v. NLRB (1938) 303 U.S. 261 [2 LRRM 600]. ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record of this case, it is found that the District has violated Government Code section 3543.S(b), and pursuant to Government Code section 3541.S(c) of the Educational Employment Relations Act it is hereby ordered that the Long Beach Unified School District, Board of Education, superintendent and represent- atives shall: A. CEASE AND DESIST FROM: 1. Enforcing District regulations so as to prevent employee organizations from having access to employees and -38-
conducting solicitation for membership or other organizational business during the time employees are present on District facilities but are not actually engaged in work, either before, during or after the work day; 2. Enforcing the District regulation which requires employee organization representatives to obtain District-issued identification cards in order to visit District facilities on organizational business; 3. Enforcing the District regulation which precludes employee organization representatives from speaking to more than three persons simultaneously in lounges, workrooms, lunch- rooms and similar areas; except that the District may require that such conversations be conducted in a quiet and nondisruptive manner; 4. Enforcing the District regulation which requires an employee organization representative to register at least a day in advance to speak informally with employees in District lounges, workrooms, lunchrooms or similar areas; except that the District may require registration at least one day in advance where the representative seeks exclusive use of a District facility; 5. Enforcing Dis ct regulations so as to t employee organization representatives from distributing literature to employees during periods when the loyees are on Dis ct facilit s but are not actually working. -39-
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE ACT: 1. Prepare and post at its headquarters office and in each school for twenty (20) working days in a conspicuous place at the location where notices to certificated and classified employees are customarily posted, a copy of this order; 2. At the end of the posting period, notify the Los Angeles Regional Director of the Public Employment Relations Board of the action which has been taken to comply with this order. It is further ordered that: 1. The Federation's allegation that the District violated Government Code section 3543.S(b) by its adoption of the two- representatives-on-campus-at-a-time rule is hereby dismissed, and 2. The Federation's allegation that the District violated Government Code sections 3543.S(a) and 3543.S(d) by its adoption and implementation of the access rules is dismissed. Pursuant to Title 8, California Administrative Code 32305, this proposed decision and order shall become final on June 27, 1978, unless a party files a timely statement of exceptions. See Title 8, California Administrative Code 32300. Dated: June 2, 1978 Ronald E. Blubaugh Hearing Officer u -40-
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LONG BEACH FEDERATION OF TEACHERS,
LOCAL 1263, AFT, AFL-CIO,
Charging Party, Case No. LA-CE-171
Ve PERB Decision No. 130
LONG BEACH UNIFIED SCHOOL DISTRICT,
May 28, 1980
Respondent.
Sor? ener aga? at Manat Natl eae Rae gael? Manel? Sth
Appearances: Henry R. Fenton, Attorney (Levy, Koszdin,
Goldschmid and Sroloff) for Long Beach Federation of Teachers,
Local 1263, AFT, AFL-CIO; Ted R. Huebner, Attorney (McLaughlin
and Irvin} for Long Beach Unified School District.
Before: Gluck, Chairperson; Gonzales and Moore, Members.
PROCEDURAL HISTORY
On August 24, 1977, the Long Beach Federation of Teachers,
Local 1263, AFT, AFL-CIO (hereafter Federation or Charging
Party) filed an unfair practice charge against the Long Beach
Unified School District (hereafter District). The Federation
alleged that the District had violated sections 3543.5(a), (b)
and (d) and 3543.1(b) of the Educational Employment Relations
Act (hereafter EERA or Act). In part, the factual
allegations set forth by the Federation pertained to District
ighe EERA is codified at Government Code section 3546
conduct
which,
the Federation
asserted,
evidenced
preferential
treatment of the
Teachers
Association of
Long
Beach
(hereafter
et
seq.
Unless
otherwise noted,
all
statutory
references are
to the
Government Code.
The
provisions of the
EERA
cited
by
the
Federation are
as
follows.
Section 3543.S(a),
{b) and (d)
states:
It
shall
be
unlawful
for
a
public
school
employer
to:
(a) Impose
or
threaten to
impose
reprisals
on
employees,
to discriminate
or
threaten todiscriminate against
employees,
or otherwise
to
interfere
with,
restrain,
or coerce
employees
because
of
their
exercise
of
rights
guaranteed
by
this
chapter.
(b) Deny
to
employee
organizations
rights
guaranteed
to
them by
this
chapter.
(d)
Dominate
or
interfere
with theformation
or administration
of
any employee
organization,
or
contribute financial
or
other support to
it,
or in
any
way
encourageemployees
to join
any
organization in
preference to another.
Section 3543.l(b)
states:
(b) Employee
organizations shall
have
the
right of access
at
reasonable times to areasin
which employees work,
the
right to
use
institutional bulletin
boards, mailboxes,
and
other
means
of
communication,
subject toreasonable regulations,
and
the right to
use
institutional facilities at
reasonable times
for the purpose
of
meetings concerned
w1cn
the exercise of the
rights
guaranteed
by
this chapter.
2
Association)
and
unlawful
discrimination against
the
Federation.
The
charge
also
challenged various
rules
adopted
by
the
District
to regulate
the
activities
of
employee
organizations.
The
Association requested permission
to
join
the
action
and
on
October 24, 1977,
the Public
Employment
Relations
Board
(hereafter
Board
or
PERB)
granted the
request. Thereafter,
pursuant to settlement negotiations,
the
parties
reached
an
agreement
which
resulted
in the withdrawal
of the
allegations
concerning
the
District's
preferential
and
discriminatory
conduct
and
the
Association's
withdrawal as
a
party to
the
instant
unfair
practice
charge.
A
hearing
was
held
on
October
26
and
27, 1977,
concerning the
Federation's challenge
to the
District's
rules pertaining to
employee
organization
activity.
A
PERB
hearing
officer
rendered
a
proposed
decision
in
this
case
on
June
2, 1978,
to
which
the
District
excepted.
The
Board
itself
has
considered the
Federation's allegations
and
has reviewed
the
entire
record in the
case.
The
hearing
officer's
findings of
fact
as contained in the proposed
decision, attached hereto, are free
from
prejudicial error
and
are
adopted by
the Board
itself.
DECISION
The
issues raised
by the
instant unfair practice
charge
concern
an employee
organization's right of access as provided
3
by
section
3543.l(b) of
EERA,
set
forth
supra.
In
that
subsection,
an employee
organization
is
expressly granted the
right
of
access
at
reasonable
times
to
areas in
which
employees
work,
the
right
to
the
use
of
bulletin
boards,
mailboxes
and
other
means
of
communication,
subject
to reasonable
regulations,
and
the
right
to
use
institutional
facilities
at
reasonable times. Therefore, as
to
each
of the
District's
access
rules
challenged
by
the
Federation's
charge, the
Board
must
determine
whether
the
rule
falls
within the employer's
right
to
establish
"reasonable"
regulations to
implement
the
access procedure.
In
striking this
balance, the
Board
has
considered, as
stated
in
Richmond
Unified
School
District/Simi
Va!_!~Y
Unified
School
District
(8/1/79)
PERB
Decision
No.
99,
that
an
employer's
regulation
of
an
organization's
access
rights is
reasonable
if
it
is
consistent
with
the basic labor
law
principles set
forth in
EERA
which
are
designed
to
insure
effective
and
nondisruptive organizational
communications.
Each
aspect
of
the
Federation's challenge
will
be
discussed
separately.
A.
Organizational Activity
Outside
of
Duty Hours
of the
Wor:
kday2
2The
District's
rule regarding
organizational activity
states,
in
pertinent part:
Employee
Association Business--All
activities
concerning association business,
4
By its access rules promulgated in October 1976, the
District sought to establish that all activities concerning
association business3 would be conducted outside of duty
hours of the workday for the individuals involved. The
District's coordinator of Employee Relations testified that
duty time for teachers is synonymous with workday. The
District's rules included a definition of workday which,
combined with the rule on organizational activity, produced the
result that all organizational activity was prohibited during
the 20 minutes prior to the start of a teacher's first class
and the 20 minutes after the completion of the teacher's last
class.4
as defined, shall be conducted outside duty
hours of the workday for the individuals
involved. All association business when on
district property shall be conducted away
from students and other non-employees.
(Emphasis in original.)
3As defined in the District's rules, employee association
business refers to "any activity related to recruitment of
members, circulation of petitions, election campaigning, or
other matters relating to unit determination hearings and
exclusive representation elections."
4specifically, the rules set forth the following
definition of "workdays":
1. Teachers (includes Math/Reading
Specialists)--Normally, the teacher 1 s
workday extends from 20 minutes before the
first assigned period to 20 minutes after
the last assigned period; including class,
5
The
subject
of
organizational
activity
and
the
right
of
access
under
the
National
Labor
Relations
Act
(hereafter
NLRA)
has
been
extensively
considered
by
the
National
Labor
Relations
Board
(hereafter
NLRB)
and
the
courts.
The
NLRA,
however,
does
not
specifically
include
a
provision similar to section
3543.l(b) of
EERA
and
these
decisions
have
considered the
propriety
of
an
employer's
rule
concerning
organizational
activity
in
terms
of
resultant
interference
with
employees'
rights.
Nevertheless,
both
section
3543.l(b)
and
the
cases
under
the
NLRA
are
directed to
the
same
end:
ensuring access
conference,
and
p~eparation
periods.
(Kindergarten
teachers
have
the
same
workday
as other
elementary
teachers.
Elementary
teacher-librarians
work on a
7-hour
day.)
It
also
includes
additional related service
time such
as
after
school
and
evening
supervision of student
body
activities
and
other
extra-curricular duties.
2. Other Employees--All
other regular
full
time employees have an
eight-hour day,exclusive of
a
lunch
period.
3. Nutrition
and
Lunch··•-No
part of theduty-free nutrition
and
lunch
periods(except for
passing
time
supervision ofstudents
when
assigned)
is
considered
to
be
duty time.
4. Child Development Center and Other
Part-time
Employees----Meetings for
these
employees
may be arranged
at
work
sites
solong as they
do
not
conflict
with the
individual employee's duty time
and do
not
disrupt the
work
function of
employees
still
on duty.
6
of employee organizations to employees. Therefore, the Board
has considered applicable labor law precedent in determining
whether the employer's rule concerning organizational activity
is reasonable and therefore permissible under the EERA. (See
Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,
616-17 [116 Cal.Rptr. 507; 87 LRRM 2453]; and Richmond/Simi,
supra, at p. 16.)
In Republic Aviation Corp!... v. NLRB (1945) 324 U.S. 793 [16
LRRM 620], the Supreme Court adopted the presumption that a
rule prohibiting union solicitation by employees outside
working time was an unreasonable impediment to self
organization. Subsequent decisions in this area have attempted
to accommodate the employees' rights to freely participate in
the activities of employee organizations with the right of the
employer to maintain order and discipline. (~~RB v. Babcock &
Wilcox, CC?_:_ (1956) 351 U.S. 105 [38 LRRM 2001].) In striking
this adjustment, the Board established in Stoddard Quirk Mfg.
Co!... (1962) 138 NLRB 615 [51 LRRM 1110] a distinction between
distribution of literature and solicitation. Restrictions on
employee solicitation during nonworking time and restrictions
on distribution during nonworking time and in nonworking areas
are violative of section 8 (a) (1) of the NLRA5 unless the
5section 8(a) (1) of the NLRA provides:
It shall be an unfair labor practice for an employer --
(1) to interfere with, restrain, or coerce
7
employer
justifies
the
rules
by a
showing
of
special
circumstances
which
make
the
rule
necessary
to
maintain
production
or
discipline.
(Also,
see
Okaloosa-Walton
Jr.
College
v.
PERC
(Fla.
Dist.
Ct.
App.
1979)
372
So.2d
1378 [102
LRRM
2419]
.)
In
this
case,
however,
the
District's
regulation
of
employee
association
business
does
not
distinguish
solicitation
from
distribution.
Rather, the record
reveals
that
the
District
sought
to
prohibit
both types of
organizational
activities
directed
at
employees
during the
two
twenty-minute
periods.
Therefore, as
applied to
solicitation
and
distribution
in
nonworking
areas,
the
propriety of the
District's
rule
depends
on
whether
the
20-minute
per1oa befure
and
after
classroom
duties
is
determined
to
be
nonworking
time.
In
seeking
to accurately characterize
the
two
twenty-minute
periods,
the
Board
is
not persuaded by the
District's
argument
t
because
s
are required to
be
present
at
school
during
this
time
it
is
preparation
time
rather
than
free,
nonworking
time.
While
the
Board acknowledges
that
a
component
employees
in the exercise of the
rights
guaranteed
in section
7;
8
of
a
teacher's
job
duties
includes
preparation
time, the record
does
not demonstrate
that
the
two
twenty-minute
periods
are
expressly
and/or uniformly
reserved for
preparation
time. In
fact,
it
reveals
that
the
majority of teachers
do
not
work
during
these times.
The
mere
possibility
that
an
instructor
could
do
his/her
classroom or
other preparation
during
this
time,
or might
in
individual
circumstances
have
duties
assigned
by
school
administrators
during
this
time,
does
not
support
a
conclusion,
that,
under normal
circumstances, the
20-minute
periods are
working time
for
all
or
most
employees. Thus,
to
the
extent
that
the
District's
ban on
organizational
activity
prohibited
solicitation
and
distribution efforts
directed
at
teachers
who
were
not assigned
work
during
the
20-minute
periods
before
and
after classes
and who were
in
nonworking
areas,
the
rule
is
unreasonable.
(Essex
International,
__
!~~_:_
(1974)
211
NLRB
749 [86
LRRM
1411]
.)
Similarly,
the
Board
adopts the hearing
officer's
conclusion
that,
as
to organizational
activities
directed
at
instructional aides, the
District's
rule
was
unlawfully
applied.6
On
its
face, the
District's
20-minute
rule
is
6The Board
considered
and
rejects
the
District's
argument, as
set
forth in
its
exceptions, that
it
was
notadvised that application of the organizational activity rule tothe
work
schedule of instructional aides
was under submission
to the hearing
officer,
and
that
it
was
thereby denied due
process of
law.
To
the contrary, the substance of the
9
inapplicable to the instructional aides since they are not
required to report to work 20 minutes before their assignments
nor required to remain at the school 20 minutes after their
assignment. The record also reveals that the instructional
aides were not afforded lunch breaks or uniformly granted rest
periods. Thus, implementation of the District's organizational
activity rule as interpreted by the District effectively
precluded employee organization representatives' access to
these employees because the instructional aides were not
granted the nonworking periods of time during which the rule
permitted organizational activity. The Board, therefore,
affirms the hearing officer's determination that the District
violated section 3543.S(b) of the Act by denying the Federation
its right of access to nonworking employees occupying
nonworking areas.
Federation's charge, both as set forth in its unfair practice
charge and as addressed at the hearing, clearly established
that the rule and its application was challenged. Federation
witness Ribar provided ample testimony as to the specific
problems confronted during her attempts to organize
instructional aides. The District was afforded full
opportunity to cross-examine Ribar and, in fact, questioned its
own witness, Marmion, about the application of the
organizational activity rule to instructional aides. Having
fully and fairly been heard on the issue, the District's due
process argument is rejected. (See Santa Clara Unified School
District (9/26/79) PERB Decision No. 104 and cases cited
tnere fn at pages 18 and 19.)
10
B.
Distribution
of
Literature
During
Non-Duty Hours?
The
Federation
also
challenged
the
District's
rule
which
restricted
the
employees'
right
to
distribute
literature
to
their
"non-duty" hours
and
restricted
the
nonemployee
7The
District's
rule regulating
the
distribution
of
literature
provides:
1. Site
Mailboxes
and
Bulletin
Boards--Association
representatives
who
are
employees
of
the
district
may
distribute
materials to
employees
during the
employees'
non-duty hours
or
may
place
materials
in
employee
mailboxes. Also,
materials
may
be
posted
on employee
bulletin
boards
designated for
associations.
Association
representatives
who
are
not
district
employees
may
distribute
materials in
mailboxes during hours
when
schools
and
offices
are
regularly
open and may
distribute
materials to
district
employees
during
the
district
employees' non-duty time.
2. Conditions--Materials
distributed
or
posted
must
be
properly
identified
as
to
source
and must
not
be
distributed
in
such
away
as to
interfere
with classroom
instruction,
regular
district
routines,
or
conditions of cleanliness
or
safety.
Notices should
be
posted for
no more
than15 workdays and must
not include
campaign
material related to municipal,
state,
or
national elections;
statements or other
written material containing implications of
a
derogatory or unprofessional nature
relating
to
any person~
statements
that will
be
disruptive to the
site
operation; or
discussion of personnel problems or
grievances with
reference to specificcases. Materials that do not
meet
these
regulations will
be withdrawn from
circulation until
such time as correctionsare
made.
11
representative's right
to
distribute
literature
to
employees
during
the
employees'
11
non-duty
11
hours.
The
Board
is
in
agreement with
and
hereby
affirms the hearing
officer's
decision
that
the
rule
is
impermissible
to
the
extent
that
it
fails
to distinguish actual
working
time
from
periods during
the
workday when
employees
are free
from
duties.
This
failure
is
critical
because
cases
arising
under
the
NLRA
have
established that
a
private
sector
employer
may
not
prohibit
the
distribution
of
literature
to
nonworking employees
in
nonworking
areas.8
(Essex
International,
supr~; Stoddard
Quirk
Mfg.
Co., supra;
~~~~dyke
Tran~ort,
Inc.
v.
~LRB
(10th
Cir.
1976)
530
F.2d
137
[91
LRRM
2405]
.)
The
Board
finds
that
the
application
of
this
principle
to the public
school
employer
is
amply
justified
by the
need
to insure reasonable
avenues
of
communication
to
employees. This
finding
is
likewise
consistent
with
and
in furtherance of the
Legislature's intent,
as evidenced by
the inclusion of section 3543.l(b),
set forth
8while not
applicable to
the
instant case,
an
exception
to
this
general rule
permits
an employer
to
impose
greater
restrictions
on
solicitation
and
distribution
in
certain
employment
environments such as
retail
department
stores
and
hospitals
where
the
potential
for
interference
with the
employer's operation is
caused by
the presence of customers or
patients.
(May
D~pt.
Stores
Co. (1944) 59
NLRB
976
[15
LRRM
173], enforced as modified, (8th
Cir.
1946) 154 F. 2d 533
[17
LRRM
985]; Beth
Israel
Hospital
v.
NLRB
(1978) 437
U.S.
483
[98
LRRM
2727].)
12
suEra, to expressly grant employee organizations the right of
access to and communication with employees.
The Board concludes that in this case, the District's rule
regarding distribution of literature is unreasonable because it
does not clearly permit nonworking employees to distribute
material to other nonworking employees or to receive
organization material in nonworking areas.
In addition to the impermissible restriction suggested by
the ambiguous language of the rule, the application of the rule
to instructional aides exposes an equally serious impediment to
an employee organization's right of access. The fact that
instructional aides did not have personal mailboxes effectively
obstructed the organizer 1 s efforts to disseminate literature to
these employees. As the facts in this case amply demonstrate,
the concept of reasonable access must necessarily include some
form of reasonable accommodation to the particular employment
conditions and circumstances relevant to instructional aides
and other significant groups of employees in the district. As
applied to the organizational efforts aimed at instructional
aides, the District's rule imposed nearly insurmountable
obstacles and thwarted efforts to provide these employees with
13
organizational
literature
which
is essential
to
the
free
exercise
of
organizational
rights.9
C.
Identification
Cardsl0
9with
specific
regard
to
the
organization's right
ofaccess
to
instructional aides,
the
Board
notes
that
certain
school
administrators
attempted
to
accommodate
the
District's
mailbox
rule, set
forth
supra, to the
fact that instructional
aides
did not
have
personal
mailboxes
assigned.
For
example,
in
some
schools,
the
employee
organization representative
was
instructed
to
leave
materials
near
the
aides' sign-in
book
or
to place the
materials
in the
mailboxes
of the
regular teachers
in
hopes
that
they
would be
passed
on
to
the
aides.
In
other
schools,
the
representative
was
permitted
only
to
leave the
materials
with the
principal's
secretary.
In
one such
school,
the
representative
left
the
materials
with
the
secretary
and
later
that
day
returned to
the school
and
observed
the
secretary
removing
the
materials
from
beneath the
counter.
Based
on
the
fact that
only
some
schools afforded
alternatives
and
that
such
alternatives
did not uniformly or adequately
provide for
actual distribution
to
the
instructional aides,
we
find
that
the
District's efforts
resulted
in
an
ineffective
means
of access
and imposed
substantial
burdens
on
the
employee
organization's right
to
communicate
with employees.
lOThe
District's
rule
regarding
identification
cards
provides:
Identification
of Representatives ofNon-Verified
Employee
Associations
1.
When an
association
wishes
to
pursue
employment
matters with
employees
but does
not
have any
district
employees
as
members
and/or has
not applied for recognition
as
a
verified association,
its
representative
must apply
to the
district
1 s
Office of
Employee
Relations
(Board
of Education
Building,
701
Locust Ave.)
for approved
identification
cards and/or
verifiedassociation status.
2. Upon proper
presentation of credentials,
such
representative of
an
association will
14
The Federation's unfair practice charge challenges the
District's rule which requires that all employee organization
representatives who are visiting at a site where they are not
employed by the district must obtain an identification card
issued by the District Office of Employee Relations. In
reviewing the identification card requirement, the Board
recognizes that it is clearly within the public school
employer's legitimate authority to require that unknown
visitors to its school sites identify themselves to school
administrators. It is noted that the District's rule also
requires that school visitors sign in at the main office and
state their business and their whereabouts while on campus. In
the Board's view, compliance with this portion of the rule
be issued identification cards without delay
and will be authorized access to district
sites for the purpose of arranging meetings
with employees.
The District's rule defines a verified association as:
... any employee association which wishes
to be acknowledged or has been acknowledged
by the Board of Education for the purpose of
representing members and of qualifying for
dues deduction privileges prior to the
selection of an exclusive representative.
Those who represent verified associations
including district employees and
non-employees will be issued identification
cards by the Office of Employee Relations to
be used in making contracts to district
schools and offices.
15
adequately protects the employer's interest in monitoring
on-site visitors. A visiting employee organization
representative may legitimately be required to identify
him/herself to school administrators; however, the District's
rule appears to demand a specific method of identification
which is different from the procedure required of other school
visitors. The Board finds, therefore, that the District's rule
is unreasonable because it discriminates against union
representatives by requiring, without justification, a visitor
identification procedure more onerous than is normally required
of other visitors. Moreover, because only the employer can
supply an organization representative with an acceptable form
of identification, the rule demands that union organizers must
provide the employer with advance notice of its visiting
representatives and invites the possibility that administrative
delays will further obstruct access rights.11 The Federation
has demonstrated that, in this fashion, the rule interferes
with its ability to effectively utilize the assistance of
organizers whose availability is sporadic and unpredictable.
The rule is therefore unreasonable in that it unnecessarily
llwhile the record does not conclusively establish that
administrative delays actually occurred, the Board notes that
the possibility for delays is inherent in the rule's
requirement demanding administrative processing of the
identification cards.
16
restricts the Federation's ability to exercise its right of
access. The District's legitimate purposes can be met without
such broad intrusion into the Federation's organizational
rights. For the reasons set forth above, the Board finds that
the District's identification card rule unlawfully interferes
with the employee organizations' right of access to employees.
D. Three Person Conversation and Prior Arrangement
Rulesl2
2 1 The District's rules concerning the three person
limitation and prior arrangement requirement provide in
pertinent part:
Approved Association Activities by EI!!E,~oyees
The following activities may be conducted by
employees who work at a site during non-duty
hours as established and understood by the
site manager or supervisor and the affected
employee(s}:
B. Communicating on association business
matters with not more than three employees
on an informal basis in lounges, workrooms,
lunchrooms, or other areas where employees
ordinarily gather.
NOTE: Employees engaged in such
conversations shall refrain from disrupting
or interfering with other district employees
who are otherwise engaged and who do not
wish to be a party to the discussion on
association matters. Where a discussion
between individuals becomes a small group
meeting, arrangements must be made for an
17
The District's rules regarding on-site meetings with
employees provide that an employee organization representative
may meet informally with no more than three employees at a time
alternate meeting place as per section v.,
paragraph D. of this bulletin.)
. . . . . . . . . . . . . . . . . . . . . . .
Organizing Activity bl__!~eloyee Associations
A. Identification of Representatives of
Verified Associations
1. Site Employee as Representative--Where
an employee assigned to work at the site is
also the verified association's
representative, he/she shall make advance
arrangements with the appropriate site
manager or supervisor on all matters related
to this bulletin. Arrangements shall be
made sufficiently in advance to allow site
managers time to study requests.
2. Non-site Employee or Verified
Association Staff Employee as
Representative----Where the association
representative who wishes to implement
sections of this bulletin is not an employee
as the site, he/she shall make arrangements
in advance and shall officially identify
himself/herself as per paragraph C below.
D. Facilities Arrangements
1. Association or Personal Business -----with
Individual Emp~--An association
representative who is not employed at the
site may meet privately with up to three
individual employees during non-duty hours
in a lounge, workroom, lunchroom, or other
similar area so long as the conversation
18
and that the District will provide rooms for meetings with four
or more employees. The rules require that representatives who
do not work on the campus where the meeting takes place must
make arrangements for both types of meetings one day in advance
and on-campus representatives must make arrangements one day in
advance for meetings with four or more employees. The Board
finds that the organization's right of access which extends to
nonworking employees in nonworking areas cannot be subjected to
an artificial limitation based on the number of employees with
whom the representative meets. While an employer may properly
prohibit organizational activity which is disruptive of school
functions or the educational environment, the instant rule is
will not disrupt or interfere with others.
The lounge or other area may be specified by
the site manager or supervisor.
2. Association Business with Groups of
Employees--When it is anticipated that
association business is to be conducted
informally or formally with a group of four
or more employees, room arrangements must be
made at least one day in advance of the
meeting. The request for access must be
made to the site manager or supervisor and
shall include the specific date, time, and
size of a facility requested. The principal
or office head will evaluate the request and
normally authorize use of the facilities
while mindful of the district's need to
balance fairly the rights of all employees,
of other associations, and of the district
itself. Failure to make arrangements in
advance shall be grounds for prohibiting any
such meetings at the site.
19
unreasonable
because
it
assumes
without
factual
basis
that
all
discussions
with
more
than
three
employees
necessarily
assume
a
disruptive quality.
Moreover,
when
the
District's
rule
limiting
informal
discussions to three
persons
is
considered
together
with
the
rule
which
permits,
under normal
circumstances,
only
two
representatives
per school
site,13
an
employee
organization
can
optimally
hope
to
reach only
six
employees
at
any one
time.
Thus,
these
rules
may
in
fact
increase
the
likelihood
of
so
called
"disruption"
which
the
District
seeks
to control
by
causing the
organization
representative
to
have
to
make
repeated
visits
to
certain
school
sites
in order
to
communicate
with
employees.
Therefore,
when
viewed
in
their entirety,
the
District's
rules
lack reasonable
justification
and
are
plainly
seen as
an
attempt to unlawfully
limit
an
organization's right
of access
to
employees.
13rn
its
unfair practice
charge, the Federation alleged
that
the
District
unreasonably
interfered
with
its
right of
access
by
promulgating
a
rule
which
states
"Normally, no more
than
two
representatives
from
the
same
association will
be
permitted
at
a
site
for
a
single
visit."
The
hearing
officer
concluded
that,
absent evidence concerning
inflexibleapplication of
this rule,
it
was
not an
unreasonable
regulationof access
rights.
The
Federation did not object to the h2aring
officer's
decision as to the
two
person
limitation. Therefore
this
issue is
not before the Board,
and
we
have
not consideredthe propriety of
this regulation.
20
The
District
asserts that
its
rule
was
designed
to
protect
against
the
disruption
visited
on
employees
who do
not
wish
to
hear
from
organization
representatives.
While
the
District
may
legitimately
promulgate
rules to prohibit disruptive
conduct,
the
EERA
does
not
establish
the
public
school
employer
as
the
guardian of the
employees'
undisputed
right
to
refrain
from
participating
in the
activities
of
an employee
organization.14
By
specifically
granting
employee
organizations
the
right
of access,
the
statute clearly
recognizes the
essential
need
to
communicate
with
and
approach
those
nonworking employees
whom
organizations
seek
to
represent.
By
characterizing
such communications
as
disruptive,
the
District
ignores the
fact that
the
employee
organization's
access
right
must
necessarily
include the
initial
right
to
address
nonworking employees
some
of
whom
may
elect
to
extricate
themselves
from
further organizational
attempts.
In balancing the
right
of access of organizations
and
the
right
of individual
employees
to
participate
or
refrain
from
participating
in organizational
activities,
the
Board
finds the
latter right is
adequately protected in that
disinterested
employees
are not
a
captive audience
and may
14The
EERA
provides in section
3543
that
public schoolemployees
shall
have the right "to refuse to join or
participate in the
activities
of
employee
organizations."
21
simply
leave the
nonworking
areas
or
otherwise
ignore
the
organizational
activities.
The
Board
finds
that
the
District's
rule
is
reasonable
and
it
may
legitimately
require
that
one day advance
notice
be
given
in order for
an employee
organization to
secure the
use
of
rooms
not normally
used
by
nonworking
employees.
However,
to
the
extent
that
the
District's
rule
appears
to require
that
all
meetings with four or
more
employees
be
conducted
at
such
pre-arranged
facilities,
the
regulation
is
unreasonable.
The
Board
recognizes, of course,
that
in
certain settings,
unlike
lounges,
lunchrooms
or
other
nonworking
areas, large gatherings
of
employees
may
be
disruptive
of the educational process
unless they
are
conducted
in appropriate
facilities,
for
which
advance
notice
is
generally required.
However,
absent the
nonavailability of appropriate
facilities
or
a
showing
of
probable
disruption of
school
functions, there
is
no
justification
for the
District's
rule
which
has the
result
of
denying
an employee
organization the
right to
use such
facilities
for
organizational
activity
conducted during
nonworking
hours.
Consistent
with the foregoing
discussion,
the
Board
finds
that the Federation's right of access, as guaranteed by
section
3543.l(b) of
EERA, was
subjected to unreasonable regulation
by
the
District's
rules in violation of section
3543.S(b)
of
EERA.
Additionally,
it
is
concluded that the
District's
rules
22
likewise
interfered
with the
rights
of
employees
to
participate
in
the
activities
of
an employee
organization
and
deprived the
employees
access
to
the
organizational
efforts
and
communications
of the Federation
representatives.
The
Board
finds
that
the
rationale
proffered
by
the
District
in support
of
its
rules
fails
to
evidence
operational necessity
or conduct
based
on
circumstances
beyond
the employer's
control
where
no
alternative
course
of action
was
available.
(Carlsbad
Unified
School
District
(1/30/79)
PERB
Decision
No.
89.)
Therefore,
consistent
with the holding
in
San
Francisco
Community
College
District
(10/12/79)
PERB
Decision
No.
105,
we
find
that
the
District's
rules concurrently
contravened
section
3543.S(a)
of
the
Act.
The
Board
affirms
the hearing
officer's
conclusion
that
the
facts
fail
to
demonstrate
a
violation
of
section
3543.S(d)
of the Act.
ORDER
Based on
the foregoing
facts,
conclusions of
law and
the
entire
record in
this
case,
it
is
hereby
ORDERED
that
the
Long
Beach
Unified School
District:
1.
Cease and
desist
from
adopting
and
applying
rules
and
regulations
which
unreasonably
interfere
with
employee
organizations' rights
of access;
2.
Post copies of the attached notice
marked
11
Appendix
11
at
all
school
sites
and
in
all
other
work
locations
where
notices
23
to
employees
customarily are
placed for
a
period of
30
workdays.
Copies
of
this
notice,
after
being duly
signed
by
the
superintendent of the
District, shall
be
posted immediately
after receipt thereof.
Reasonable
steps
should
be
taken
to
insure
that said notices
are not
altered,
defaced or covered
by
any
other
material;
and
3.
Notify the
appropriate regional
director
of the Public
Employment
Relations
Board,
in
writing,
within
20
days
from
the
date
of
this
Decision, of
what
steps
the
District
has
taken
to
comply
herewith.
This
Order
shall
become
effective
immediately
upon
service
of
a
true
copy
thereof
on
the
District.
By:
-Barbara
D. Moore, Member
Member Raymond
J.
Gonzales'
dissent
begins
on page 26.
24
By:
-Barbara
D. Moore, Member
Appendix: Notice
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD,
An Agency of the State of California
After a hearing in Case No. LA-CE-171, in which all parties
had the right to participate, it has been found that the Long
Beach Unified School District violated sections 3543.S(a) and
(b) of the Educational Employment Relations Act by adopting and
applying rules and regulations which unreasonably interfered
with employee organizations' rights of access to employees as
granted by section 3543.l(b) of the Act. As a result of this
conduct, we have been ordered to post this notice. we will
abide by the following:
We will not apply or in the future adopt any rule or
regulation which will unreasonably interfere with employee
organizations' access rights.
LONG BEACH UNIFIED SCHOOL DISTRICT
By: Superintendent
Dated:
This is an official notice. It must remain posted for 30
consecutive days from the date of posting and must not be
defaced, altered or covered by any material.
25
Raymond
J.
Gonzales,
Member,
dissenting
in
part:
While
I
concur
in
the
majority's
decision
that
certain
rules
imposed by
the
District
unreasonably
restrict
employee
organization
access
under
section 3543.l(b),
I
find
that
other
rules
struck
down by
the
majority
reasonably
accommodate
the
access
rights
of
employee
organizations
with
the
rights
of the
District
to maintain
discipline.
A. The
twenty-minute
rule.
Section 3543.l(b) gives
employee
organizations
the
right
of
access
at
reasonable
times
to areas in
which employees work.
I
agree with the
majority's interpretation
of "reasonable
times"
to
mean nonwork
time.
It
would
indeed
be
unreasonable
to
allow
employee
organization representatives
the
right
to
interrupt
employees
during
worktime.
But
I
cannot agree with the
majority's interpretation
of
nonwork
time.
Nonwork
time
is
time
allocated
for
employees'
personal use, for relaxing or
eating.
It
is
not
time
when
employees
should be, but are not,
working.
The
majority,
however,
apparently believes that
nonwork
time
is
time
when
employees
are not
ig
fact
working,
regardless of
their actual
assignment. This
is clearly
demonstrated
by
the
majority's
decision giving
employee
organizations
a
right
of access
to
teachers during
two
twenty-minute
preparation periods.
Preparation
time
is
worktime under the majority's ruling in
San Mateo
City School
District
(5/20/80)
PERB
Decision
No. 129:
26
As
a
requirement
of the teaching
"job,"preparation
time
is
a
component
of the
teachers'
employment
obligation
in
the
same
sense as
are
classroom
instruction
and
other
mandated
duties
....
But
preparation,
unlike
classroom
instruction,
is
a
relatively
unstructured
activity:
even
what
appear
to
be
casual
conversations
may
in
fact
be
work-related
discussions.
Thus
it
is
difficult
to
monitor
teacher
activity
during
time
allocated
to preparation
and
districts
have
generally
not attempted
to
do
so.
As a
result,
teachers in
Long Beach have
apparently
been
using
the
preparation
time
before
and
after
classes
for other
purposes.
Because
some
teachers
do
not
work
during
preparation
time,
the
majority finds
that
at least
40
minutes of the time
provided
by
the
District
for preparation
is
nonworkin~
time
in
which
teachers are
entitled
to
engage
in organizational
activities.
That the
District
intends
this
40
minutes
to
be
working time
is
apparently
irrelevant;
according
to the
majority, the
fact that
some
teachers
choose not
to
work means
that
the
time
is
not worktime
after
all,
that
the
District is
instead providing
40
minutes
a
day
of additional paid
break-time.l
lThe
majority notes
that
the
two
twenty-minute
periodsare not ~~_pressly
reserved for preparation time. This
creates
an
interesting
presumption: time during the
workday,
unless
specifically allocated to
a
particular
work
activity, is
nonwork
time.
A much more
reasonable presumption
is that
time
during the
workday which has not been designated as breaktime
or lunchtime
is
worktime
to
be used for
work
activities.
27
This
blurring
of the
distinction
between working and
nonworking
time could
affect
teachers in several
ways.
First,
there
is
the
impact
on
those
teachers
who
actually
prepare
during the
time
allocated
for
preparation.
Under
the
majority
rule,
any
teacher in
a
nonworking
area
is
subject
to
solicitation
during the
20-minute
periods before
and
after
classes.
Lounges
are considered
strictly
nonworking
areas
by
the
majority;2
therefore,
any
teacher
using the
lounge
to
prepare for
classes,
as
many
do,3
may be
interrupted
and
encouraged
to stop
working and
discuss
organizational issues.
Thus,
the majority
not only
sanctions
the
use
of preparation
time
as
nonworking
time
but
also
sanctions interference
with those
employees
who
choose
to
work
during
the
20-minute
preparation period before
and
after
classes.
Second,
there will
undoubtedly
be an
impact
on
the
negotiation of preparation
time.4
Districts
may be
reluctant
2Majority opinion, p.
22,
ante.
3Teachers
may
choose
to
work
in faculty
lounges
insteadof
their
classrooms for
many
reasons, including
smoking
privileges
and freedom from
student interruptions.
K-12
teachers
do
not normally
have
offices.
41n San Mateo, ~upr~,
PERB
Decision
No.
129, the majority
found
that preparation
time
is negotiable.
I
dissented,arguing that preparation
is
a
professional responsibility, thatnegotiations
on such an
idiosyncratic matter are impractical,
and
that finding preparation
time negotiable
would have anenormous impact on
educational policy considerations.
28
to
agree
to
additional preparation
time
when
that
time
can so
easily
become
nonworking
time
available
for
organizational
activities
under
the
majority's direction
in
this
case.
Third, the
decision
is likely
to
have an
impact
on
the
day-to-day
activities
of
teachers.
Teachers
will
not gain
additional
time
for
organizational
activities;
what
they
will
gain
is
additional
direct
supervision.
If
teachers
have been
abusing the
time
allotted
for
preparation
by
using
it
for
personal
purposes
and
union
activities, districts
are unlikely
to
officially
sanction
this
abuse
by
allowing
employee
organization access.
They
are
much more
likely
to attempt
to
stop the
abuse
by
supervising teachers to
ensure
that
they are
actually
working
during
preparation
time.
B.
Distribution
of
literature.
I
agree with the
majority
that
literature
can
be
distributed
to
employees
during
nonworking time
in
nonworking
areas.
I
disagree
with the
majority's contradictory opinion to
the extent that
it
considers the
20-minute
periods before
and
after classes to
be
nonworking
time.
I
further disagree with
the implied finding
that
the
District
must go beyond
the
statutory
requirements of allowing access to instructional
aides during
their
nonworking time or the use of
institutional
bulletin
boards, mailboxes,
and
other
means
of communication
by
affirmatively creating
a new means
of communication with those
employees.
29
The
majority finds
that "[t]he fact that instructional
aides did
not
have
personal
mailboxes
effectively
obstructed
the
organizer's
efforts
to
disseminate
literature
to
these
employees."
(Maj.
opn., ante,
p.
13)
Further, in
a
footnote,
the
majority
states:
Based
on
the
fact that
only
some
schools
afforded
alternatives
and
that
such
alternatives
did
not uniformly or adequately
provide for
actual
distribution
to
the
instructional
aides,
we
find
that
the
District's
efforts
resulted
in
an
ineffective
means
of access
and imposed
substantial
burdens
on
the
employee
organization's right
to
communicate
withemployees.
(Maj.
opn., ante,
p.
14)
Thus,
the
majority apparently
requires
the
District
to
do
more
than provide access
to instructional
aides.
Indeed,
since
the
solution
of placing materials
near
the
aides' sign-in
books
was
considered inadequate
(see
Maj.
opn., ~nte, fn. 9,
p. 14),
the majority
is
apparently ordering the
District
to actively
help
employee
organizations
distribute
materials to aides.
This goes
far
beyond what
section
3543.l(b) requires
and
even
beyond
the requirements of the
majority's decision in
Richmond
Unified
School
District/Simi
Valley Unified
School
District
(8/1/79)
PERB
Decision
No.
99.
In those cases,
the mail systems already
existed
and
the
districts
only
had
to
allow
employee
organizations to use
them. Here, the majority
is
apparently requiring the
District
to create
some new means
of
communication with aides not for
30
District
use
but
specifically
for the
use
of
employee
organizations.
While
I
do
not
believe
that
districts
should
unreasonably hinder
employee
organization
access
to
employees
during
nonworking
time,
neither
do I
believe
that
they
must
actively
aid
employee
organizations in
their
organizational
efforts.
As
I
stated
in
my
dissent
in
Richmond/Simi:
The
specific
requirements of
section
3543.l(b}
oblige
school
districts
to
do no more
than provide access
to
work
areas,
bulletin
boards
and
mailboxes.
Providing access
to
work
areas or
meeting
rooms
requires
little
or
no
involvement
of
district
personnel; the
public
school
employer must
merely
refrain
from
interfering
with
an
employee
organization's
right
to
communicate
with
employees.
By
contrast,
transporting
and
distributing
organizational material
does
require
such
involvement
....
Clearly, there
is
a
difference
between
permitting
access
to
inanimate
district
resources
and
requiringthe
district
to
provide personnel
to assist
employee
organizations in the
distribution
of
their
organizational materials.
{pp.
34-35.)
Even
the
majority
should recognize
some
distinction
between
allowing the
use
of
existing
means
of
communication and
requiring the
creation
of
additional
means. Yet
this
decision
indicates that
the majority
does not respect
this distinction;
if
a
district
does not
have an
adequate communications system,
it
must be improved
for the
benefit of
employee
organizations.
I
find
it
difficult
to believe that the
Legislature
intended such a
subsidy to
employee
organizations.
31
Furthermore,
this
may
require
an
expenditure of tax
monies
that
could
be
construed
as
a
gift
of public
funds.
C.
Three-Person Conversation
and
Prior
Arrangement
Rules
The
District's
rule
providing
that
an employee
organization
representative
may
meet
informally
with
up
to three
employees
in
lounges,
lunchrooms,
or
similar
areas
is
a
reasonable
attempt to
retain
the
character
of those areas
as
places
where
all
teachers
can
work
or
relax free
from
student
interruption.
The
majority's
decision,
on
the
other
hand,
would
allow
employee
organizations to appropriate these areas for
their
organizational
activities,
since
it
sanctions
the
use
of
lounges
and
lunchrooms
for
large gatherings of
employees:
The Board
recognizes, of course,
that
in
certain settings
unlike
lo~ges,
lunchrooms
or
other
nonworking__~reas,
large gatheringsof
employees
may be
disruptive
of the
educational process unless
they
are
conducted
in appropriate
facilities,
for
which advance
notice
is
generally required.
(Maj.
opn.
at
p. 22, emphasis added.)
While
I
agree with the majority
that
the
employer
is
not
the
statutorily-appointed
guardian of the
right
of
employees
to
refrain
from
participating
in the
activities
of
employee
organizations,
I
also believe that
a
district
has
a
responsibility to ensure
that areas provided for the
use
of
all
teachers
remain
available to
all
teachers
and
are not taken
over
by any
particular faction.
The
District's
rule
does
this,
without denying employee
organization representatives the right
32
to
approach
all
nonworking
teachers
individually to
ascertain
their interest
in further organizational
communication.
If
a
teacher
is
interested
in hearing
more
about
the
organization,
the
representative
can
solicit
that teacher's
attendance
at
a
meeting
in
another
room,
without
disturbing
the
activities
of
those
employees
who may
at
the
time
not
be
interested
in the
organization's
meeting.5
While
the majority
acknowledges
that
not
all
employees
may
be
interested
in
the
activities
of
an employee
organization,
its
concern
for those
uninterested teachers
who
wish
to relax
in
nonworking
areas
is
minimal:
they can "simply
leave
the
nonworking
areas
or otherwise ignore the
organizational
activities."
Needless
to say,
the
majority
does
not
explain
where
these displaced teachers
can
go
to
take
their
breaks
or
eat their
lunches, or
how
it
is
possible to
ignore
a
large
gathering of
employees
in
a room
that
may be
smaller than
a
classroom.
I
find the
District's
solution to
the
problem
of balancing
the access
rights
of
employee
organizations
with the
rights
of
individual
employees
to
be much more
reasonable.
Employee
organization representatives
can meet with small groups
of
teachers in lounges, lunchrooms,
or other
nonworking
areas. If
5Thus, two
representatives
can reach far
more
than
six
employees during
a
period of
nonworking time; the majority
exaggerates the limitations
imposed by
the
District's rules.
33
they
wish
to
address
a
larger
group, they
can
make
arrangements
to
use
a
classroom
or other appropriate
facility.
The
District,
of course,
must
exercise
good
faith
in
making
facilities
available;
it
should not
assign
employee
organizations
to
inconvenient
locations
unless
there are
no
alternatives.6
However,
if
the
District
does
act
in
good
faith,
its
three-person rule
maintains
lounges
and
other
nonworking
areas
as
places available to
all
teachers
while
allowing reasonable access
to
employee
organizations
under
section 3543.l(b).
The
District's
rule requiring
advance
notice to
secure
a
room
for
a
large
meeting
is
reasonable.
But
to
the
extent the
rules require
advance
notice
by
off-campus
organizers
seeking
to
approach
individual teachers
or
meet
with
small
groups
during
nonworking
time, they
impose an
unreasonable
restriction
on employee
organization access.
Finally,
I
believe the majority
fails
to
address
an
important aspect
of
section 3543.l(b).
This
section
differs
6There
was some
evidence
in the record
that
one
organizer
had
difficulties
in obtaining
rooms
to
meet
with
aides.
The
hearing
officer
did not address the issue of whether
the
advance
notice rule
was
being applied in
an
unreasonablemanner, and I do
not reach
that issue
here except to
note
thatthe
District
should not use reasonable rules (requiring
employee
organization meetings to take place in areas notnormally used by
nonworking employees)
to unreasonably
restrict
access
(by
being "unable" to find available
rooms
or finding
rooms
only in inconvenient locations).
34
significantly from the rules developed by the NLRB to govern
union solicitation and distribution of literature in the
private sector in that it allows nonemployees the right to come
onto the work site to organize employees. 7 This additional
factor changes the dynamics of on-site organizing, and, I
believe, underlies many of the District's rules in this case.
The majority apparently adopts the private sector view that
an accommodation must be reached between the employees' right
to organize and the employer's right to maintain discipline:
[The Board must adjust] the undisputed
rights of self-organization assured to
employees under the Wagner Act and the
equally undisputed right of employers to
maintain discipline in their
establishments. Like so many others, these
rights are not unlimited in the sense that
they can be exercised without regard to any
duty which the existence of rights in others
may place upon employer or employee.
Republic Aviation Corp v. ~LRB (1945)
324 U.S. 793, 798 [16 LRRM 620].
Yet the majority evidences no sensitivity to the EERA's more
liberal access rule, which, by allowing outside organizers onto
the work site, may raise additional employer disciplinary
concerns that may necessitate a balancing of rights different
than that reached in the private sector. For example, the
District, despite knowledge that many teachers do not work
7compare section 3543.l(b) with NLRB v. Babcock & Wilcox
Co. ( 19 5 6 ) 3 51 U • S • 10 5 [ 3 8 LRRM 2 001 ]-.-
35
during the
twenty
minutes
before
classes,
may
have
chosen
not
to
make
an
issue
of
that practice.
Turning
a
blind
eye
to
teachers
talking
among
themselves
is,
however,
very
different
than
sanctioning
the
use
of the
time
for
organizational
activities
by
allowing access to outside organizers.
The
latter,
it
seems
to
me,
has
a
far
more
disruptive
effect
on
discipline.
Another
example
is
the
three-person conversation
rule.
Teachers normally
have
conversations
among
themselves
in
nonwork
areas;
such
conversations
can
hardly
be
considered
disruptive.
But
the presence of
outsiders
changes
the
dynamics
of
the
situation:
an
outside organizational representative
has
a
limited
amount
of
time
to
persuade as
many
people as
possible
to join
the
organization. Naturally,
that
person's
tactics
are
going
to
differ
from
the
tactics
of
on-site
employees
who
see
each
other every
day
and have
regular opportunities to
solicit
support
on a
one-to--one
basis.
The
outsider
may
try
to address
as
many
people
at
one
time
as
possible,
thereby monopolizing
the
nonwork
area.
The
District's
rule
seeks
to
avoid
this,
not
by
preventing nondisruptive
solicitations of
small groups
of
employees, but
by
requiring that
more
disruptive organizational
techniques take place in
a
separate area.
I
believe that
this
Board, in determining
whether employer
regulations are reasonable,
must
consider the
interests of
all
participants in the organizational process--organizations,
36
employees,
and
the
employer--and seek
to
reach
an
accommodation
among
them.
The
majority in
this
case
is
highly
sensitive
to
the
interests
of
employee
organizations
but demonstrates
much
less
concern for
the
equally
legitimate
interests
of
uninterested
employees
and
the
District.
While
this is
hardly
surprising,
given
previous
decisions
by
the
majority,
I
nevertheless
feel
compelled
once
again
to
indicate
my
concern
for the
direction this
Board
is
taking.
37
By:
-Barbara
D. Moore, Member
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
OF
THE
STATE
OF
CALIFORNIA
LONG BEACH
FEDERATION
OF
TEACHERS,
LOCAL
1263,
AFT, AFL-CIO,
Charging
Party,
v.
LONG BEACH
UNIFIED
SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________
)
Unfair
Practice
Case
No. LA-CE-171
PROPOSED
DECISION
(6/
2
/78)
Appearances:
Henry
R.
Fenton, Attorney
(Levy,
Koszdin,Goldschmid and
Sroloff) for
Long
Beach
Federation
of
Teachers
Local
1263,
AFT, AFL-CIO; Ted R.
Huebner,
Attorney
(McLaughlin
and
Irvin) for
Long Beach
Unified
School
District.
Before
Ronald
E.
Blubaugh,
Hearing
Officer.
PROCEDURAL
HISTORY
This case involves
a
challenge to the le.gality of various
rules
adopted
by
a
school
district
to regulate the
on-campus
activities
of
employee
organizations.
The
rules
have
a
partic-
ular
impact
on
the
ability
of organizations to gain access to
employees
in order to
solicit
members.
On
August 24, 1977,
the
Long Beach
Federation of Teachers,
Local 1263, AFT, AFL-CIO, 1
filed
an
unfair practice
charge
against the
Long Beach
Unified School
District.
2 The
charge
1
Hereafter the
Long Beach
Federation of Teachers, Local 1263,AFT, AFL-CIO,
will
be referred to as tha "Federation."
2
Hereafter the Long Beach Unified School District will be
referred to as thei. "District."
-1-
in
essence
alleges
that
the
District
violated
Government
Code
sections
3543.5(a), 3543.5(b),
3543.5(d)
3 4
and
3543.l(b)
by:
1)
Conducting
secret
and
exclusive
negotiations
with
and
giving
preferential
treatment to the
Teachers
Association
of
Long Beach
at
a
time
when
there
was
no
exclusive
represent-
ative;
2)
Rejecting
a
one-month
leave
of
absence sought
by
a
Federation
member
in
order to
work
for
the
Federation
while
granting
a
reduced schedule
to
an
officer
of
the
Teachers
Association
of
Long
Beach;
3)
Enforcing
a
leave
policy
which
fixed
the
maximum
amount
of
leave
time
for
employee
organization business
in
relation
to the
number
of
members
in the organization,
thereby
3
Government
Code
section
3543.5
reads
as
follows:
It
shall
be unlawful
for
a
public
school
employer
to:
(a)
Impose
or 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
exercise of rights
guaranteed
by
this
chapter.
(b)
Deny
to
employee
organizations rights
guaranteed
to
them by
this
chapter.
.
(c) Refuse
or
fail
to
meet and
negotiate in
good
faith
with
an
exclusive representative.
(d) Dominate
or
interfere
with the formation or
admin-
istration
of
any employee
organization, or contribute
financial or other support to
it,
or in
any way
encourage
employees
to join
any
organization in preference to another.
(e) Refuse to
participate in
good
faith in the impasse
procedure
set forth in Article
9
(commencing
with Section
3548).
4
Government Code
section 3543.l(b) reads as follows:
Employee
organizations shall
have the right of access at
reasonable times to areas in
which employees work, the right
to use
institutional bulletin boards, mailboxes, and
other
means
of communication, subject to reasonable regulation,
and the right to use
institutional facilities at reasonable
times for the purpose of meetings concerned with the exercise
of the rights guaranteed by this chapter.
-2-
discriminating against
the Federation
because
of
its
smaller
membership;
4)
Enforcing
an
organizational
activity
policy
which
illegally restricted
the
Federation's
ability
to
solicit
members.
On
September 23, 1977,
the
District
answered
the
charge
specifically
denying each
accusation
of
illegal
conduct
and
alleging that
the
policies
it
had
adopted
were
lawful.
The
parties
held
a
settlement
conference
on
September 27, 1977
but
were
unable
to resolve
the dispute.
On
October 5, 1977,
the
District
made
a
motion
to
dismiss the charge.
On
October
11, 1977,
the
Teachers
Association
of
Long Beach
applied
to
join
the
action
as
a
party
and
the request
was
granted
on
October
24, 1977.
Prior
to the
start
of the
formal
hearing
on
October
26, 1977,
the
parties
again entered settlement
negotiations
and
reached
an
agreement which
led to
a
withdrawal
of
the
first
three allegations
listed
in the
original
charge.
As a
result
of
the agreement, the Teachers
Association of
Long
Beach withdrew
from
participation at
the hearing.
The
hearing
was
conducted
in
Los
Angeles
on
October
26
and 27, 1977.
The
respondent's
October
5
motion
to dismiss
and
another
oral
motion to dismiss
made
at
the hearing
were
both taken under
submission for disposition in the written decision.
-3-
FINDINGS
OF
FACT
The
Long
Beach
Unified
School
District is
located in
the
city
of
Long
Beach.
The
District
has
54
elementary
schools,
14
junior
high
schools,
five regular senior
high schools,
one
combination
junior-senior
high school
and
a
continuation high
school.
These
various schools
occupy
approximately
75
separate
sites.
In
addition,
the
District
has
a
number
of
child
develop-
ment
centers,
about
five
or
six
of
which
are
located
on
sites
separate
from any
other
school.
It
is
approximately
eight
miles
between
the
Long Beach
schools
which
are
the
farthest
apart.
There
are
59,000
students,
some
2,500
teachers
and
approx-
imately
1,000
teacher aides within the
District.
At
the
time
of the hearing, the
Teachers
Association of
Long Beach
had
approximately 1,800
members
and
the Federation
had between
225
and
250
members.
Because
of
its
large size,
the Teachers
Association
had
members
at
all District
schools although
there
were
some
schools
at
which
it
had
no
building representative.
The
Federation
had
members
in
all
the high schools
and
all
but
one
of the
junior
high schools but there
were
many
schools
in
which
it
had no members.
On
October 1, 1976,
the
District
promulgated
a
series of
administrative regulations
which
are the subject of the present
action.
The
regulations
were
issued in
a
bulletin
from William
H. Marmion,
coordinator of
employee
relations, to all District
management and supervisory employees and to all
employee
4-
organizations.
The
regulations
set
forth
District
rules
relating
to
on-campus
activities
by
employee
organizations.
Regulations
relating
to
employee
organizational
activity
had
been
in
existence within the
District
since
1965 when
they
5
were
drawn
up
following passage
of
the
Winton
Act.
Mr. Marmion
testified
that
upon
enactment
of the Educational
Employment
Relations
Act
6
he
was
requested
by
the
District
superintendent to
revise
and
update
the
regulations.
Early
drafts
of the
revision
were
prepared
in
the
fall
of
1975
and
the spring of
1976.
A
final draft
was
circulated
among
employee
organizations for
comment
in
September
of
1976.
The
bulletin
begins with
a
recitation
of the
applicable
sections of
the
EERA
followed
by
a
statement of
intent
which
provides
in part
as
follows:
..
The
primary purpose
of these
regulations
is
to preserve
a
work
climate in
the
district
that will
enable
instructional
and
support
service
staffs
to
accomplish
thejob
tasks for
which
they have beenemployed
.
In general, the
bulletin sets forth these
restrictions
which
are
under
attack
by
the Federation:
1)
A
prohibition against
all soliciting
and
other organ-
izational activities
during duty hours which,
in the case
of
teachers, includes the
20
minutes
prior
to
a
teacher's
first
assigned class
and
the
20
minutes
after the last
assigned class;
5
Former Education
C
sec. 13080
et seq.
6
Government Code
sec.
3540
et seq.
-5-
2) A requirement that all organizers who do not work at
a particular campus receive an identification card from the
District Office of Employer Relations prior to visiting a
campus on organizational business;
3) A prohibition against a visit by more than two repre-
sentatives of an organization to a particular campus on a
single occasion;
4) A prohibition against an organizational representa~
tive meeting with more than three employees at a time in a
school work room, lounge, lunchroom or similar area;
5) A requirement that off-campus organizers register at
least one day prior to visiting a school, and that all organizers
register at least one day prior to conducting a meeting with
four or more persons.
6) A prohibition against the distribution of materials
to employees except under limited circumstances.
By the date of the hearing, the Federation had been
involved in two organizing efforts which allegedly were
hampered by the District policy. In the spring of 1977 there
was an organizing effort from March through June which was
aimed at instructional aides. In the fall of 1977, the
Federation conducted another organizing effort aimed at
teachers in the Distr t's child development centers.
The various rules in the Dis ict policy work together
and in some measure it is difficult to discuss them separately.
Nevertheless, it seems clear that the rule which consistently
-6-
presented the most difficulty for the Federation was the
prohibition against solicitation during the workday. The rule
reads as follows:
Employee Association Business---All
activities concerning association business,
as defined, shall be conducted outside
[emphasis in original] duty hours of the
workday for the individuals involved. All
association business when on district
property shall be conducted away from
students and other non-employees. (Example:
No association business shall be conducted
during such events as PTA or Advisory Council
meetings, Open Houses, etc., or in the
presence of VIPS or other non-employees.)
As applied to teachers, the rule is a good deal more
expansive than a mere prohibition against organizational
activity during the hours of preparation and instruction.
Mr. Marmion testified that "duty" time for teachers means the
7
same as "workday." The rule is not limited solely to work
7The District policy defines the term "workdays" as follows:
Teachers (includes Math/Reading Specialists)--Normally,
the teacher's workday extends from 20 minutes before the
first assigned period to 20 minutes after the last assigned
period; including class, conference, and preparation periods.
[Emphasis in original.] (Kindergarten teachers have the
same workday as other elementary teachers. Elementary
teacher-librarians work a 7-hour day.) It also includes
additional related service time such as after school and
evening supervision of student body activities and other
extra-curricular duties.
Other Employees--All other regular full time employees have
an eight-hour day, exclusive of a lunch period.
Nutrition and Lunch--No part of the duty-free nutrition
and lunch periods (except for passing time supervision of
students when assigned) is considered to be duty time.
Child Development Center and Other Part-time Employees--
Meetings for these employees may be arranged at work sites
so long as they do not conflict with the individual employee's
duty time and do not disrupt the work function of employees
still on duty.
-7-
hours. No organizational activity is allowed during the 20
minutes prior to the start of a teacher's first class and the
20 minutes after the completion of a teacher's last class.
The 20-minute restriction removed from Federation organ-
izers two of the time periods when teachers are most accessible.
Under District policy, teachers are required to be at school
20 minutes prior to the start of their first class and to
remain at school until 20 minutes after the completion of their
last class. During the two time periods, teachers can be
assigned various duties and some teachers are required to
supervise students just before and just after the school day.
The decision on whether to assign duties during those two
20-minute periods is left to the. discretion of local school
administrators. It is clear that many, if not most, teachers
have no assigned duties during the two 20-minute periods. It
was the uncontradicted testimony that at the high schools, it
is relatively rare for a teacher to have duties assigned during
the 20 minutes either before or after school. At the junior
high schools, a small percentage of the faculty on a rotating
basis is assigned to watch students outside and at the bus
lines. Even at the elementary school level, according to
uncontradicted testimony, there always are a number of teachers
in the teacher's lounge until just before the start of class.
During the time after school, there occasionally is a fa ty
meeting which teachers must attend but it also is common that
many teachers leave school before the 20 minutes has elapsed.
-8-
According
to
the
testimony,
the
teachers'
parking
lot
at
Long
Beach
Polytechnic
High
School
is
more
than
half
empty
by
the
time
20
minutes
have
elapsed
after
school.
The
problem
presented
by
the
rule
was
illustrated
by
an
experience
of
Robert
Ciriello,
a
District
teacher
who
took
a
brief
leave of
absence
to organize
for
the
Federation.
He
said
he went
one day
to the Carver
Elementary
School
to
speak
to
teachers.
He
arrived prior
to the
start
of
the school
day
but
was
not permitted to
go
immediately
to the
lounge, even
though
it
was
earlier
than the
20-minute
prohibition period.
He
said
the
principal
detained
him
until
she could
call
the
District
headquarters
and
verify that
it
was
all
right
for
him
to
speak.
Mr.
Ciriello said
the
verification
process
took
about
10
minutes
which
put
him
close to the
20-minute
prohibi-
tion period.
The
principal escorted
him
to the lounge,
announced
that
he
was
from
the Federation
and
said that
anybody
who
wanted
to leave could
do
so.
She
then stood nearby while
he spoke
to teachers individually
and
cut
him
off
in
mid-
sentence
when
it
became
20
minutes
prior
to the
start
of the
first
class.
Although on
its
face the 20-minute
rule applies
only
to
teachers,
it
also
hampered
efforts
of
a
Federation organizer
to
talk to instructional s.
The
organizer, Barbara Ribar,
was a
former
instructional aide
who
tr
d
to
solicit
members
for the Federation from March
through June of
1977. She
testified that she consistently
was
told that the 20-rninute
-9-
rule
applied to
instructional
aides.
This
made
personal
contact with
aides
most
difficult.
The
aid~s
typically
work
15
hours
a
week.
Many
of
them
are college students
whose
work
hours
are
scheduled
around
their
classes.
Some
aides
work
in
the
morning,
some
in the
middle
of the
day and
others
in
the
late
afternoon.
Unlike
teachers,
aides are not
required
to
be
present
20
minutes
before
their
first
class
or
remain
until
20
minutes
after their last
class.
As a
result,
many
of
them
did
not
arrive
until
five
minutes
early.
Aides
do
not
have
a
lunch
period
and Ms.
Ribar
said
she
was
prevented
from
talking
to
them
during
recess,
even
if
they
had
no
duties
during
this
time. For
the
most
part, therefore,
aides
were
unavailable to
her.
The
20-minute
rule
was
not applied to teachers in the
child
development
centers
and
Federation organizers
were
allowed
to
meet
with
them
just
before or
just after
work,
during lunch
or while teachers
were
on
a
15-minute
break.
The
District's identification
card
rule requires
an
out-
side representative of
an employee
organization to
produce
a
D
trict-issued identi cation card before
conducting organiza-
tional activities at
a
school or other
work
site.
The
rule
provides as follows:
When
an
association
wishes to pursue employ-
ment
matters with employees but
does
nothave any
dis ct
employees as members
and/or
has not applied for recognition
as
a
verifiedassociation, its representative
must apply to
the
district's
Office of
Employee
Relations(Board of Education Building,
701 Locust Ave.)
-10-
for
approved
identification
cards
and/or
verified
association
status.8
Upon
proper
presentation
of
credentials,
such
representative
of
an
association
will
be
issued
identification
cards withoutdelay
and
will
be
authorized
access to
district sites
for
the
purpose
of arranging
meetings
with
employees.
Any
person
from
a
verified
or
non-verified
association
who
is
not
an employee
assignedto
a
district site
being
visited
must
present
a
proper
identification
card
as
issued
by
the
Office of
Employee
Relations to the
respective
manager
or supervisor.
Such
persons
will
be
required to sign
in
at
the
main
office,
state their
business
and
where
they
can be
reached,
and
sign out
upon
the completion
of
the
visit.
Normally,
nomore
than
two
representatives
from
the
same
association will
be
permitted
at
a
site
for
a
single
visit.
Federation
representatives
without
identification
cards
encountered
substantial
delays.
Ms
..
Ribar
visited
about
25
schools
prior
to receiving her card
and
was
delayed about
15
to
25
minutes
at
each school while school
officials
telephoned
8As
used
in the
District rules,
a
nverified
11
organization
is
defined as:
.
any employee
association
which wished to
be
acknowledged by
the
Board
of Education
for the
purpose of representing
members
and
of qualifying
for
dues
deduction
privileges prior
to the
selec-
tion of
an
exclusive representative.
Those
who
represent verified associations including dis
t
employees and non-employees
will
be
issued identication cards by the Office of
Employee
Relations tobe used in
making
contacts to
district
schools and
offices.
-11-
9
the
District
office
to get
approval
for
her
visit.
This
problem
of
delays
limited
the
Federation's
flexibility
in
deciding
how
to
use workers
who
suddenly
became
available
but
who
did
not
have
identification
cards.
Mr. Marmion
testified
that
the
purpose
of the
identification
card
is
to
control
access to school
grounds
by
outsiders.
He
said that
any
visitor
to
a
school
site
is
expected to
report
to
the
office
and
state
the
purpose
of
the
visit.
Persons
who
fail
to
do
so
are subject
to
removal
from
school
property.
Moreover, he
said,
a
person
carrying
a
District-issued
employee
organization
card has been
advised about the contents of
the
District
regulations.
He
said
the
relationship
between
school
managers and
organization representatives
goes
more
smoothly
if
the
representatives
know
the content of the
regulations.
The
restriction
on
the
number
of organization representatives
who
can
visit
a
school
site
at
any one
occasion
presents
a
problem
for
the
Federation
at
large schools.
The
Federation's
president,
Mr.
King,
testified
that
the
number
of teachers
at
individual
school
sites
ranges
from
eight
to about 120.
He
said
that at
the high schools
and
other larger sites
there are
a
number
of lounges
and
various places
where
teachers
go
to
eat.
9
There
is
a
conflict in the evidence about
why
it
took so long
for
Ms.
Ribar to receive
an
identification card.
However,
inorder to decide the issues presented in this case
it
is notnecessary to determine whether
Ms.
Ribar's card
was
held
up
because the Federation failed to apply for
it
or the Districtfailed to issue
it.
-12-
Two
organizers
simply cannot
contact
persons spread
all
over
a
campus
during
a
half-hour
lunch
period.
Mr. Marmion
testified
that
it
might
be
possible to
have
more
than
two
organizers
on
a
site,
depending
on
the circumstances.
He
said that
would
have
to
be
worked
out
in
consultation
with the
principal of
the
site.
However,
he
said,
the Federation
had
never asked to
use
more
than
two
organizers
at
a
school.
The
District's
three-person conversation
rule
and
its
prior
room
arrangement
rule
are
interwoven.
The
regulations,
which
appear
in
Section
V-D
of
the
bulletin,
read
as
follows:
Association or Personal
Business
with
Individual
Employees--
An
association
representative
who
is
not
employed
at
the
site
may
meet
privately
with
up
to
three individual
employees
during non-
duty hours
in
a
lounge,
workroom,
lunch-
room,
or other similar
area
so long as
the
conversation
will
not
disrupt
or
interfere
with
others.
The
lounge
or
other area
may
be
specified
by
the
site
manager
or supervisor.
Association
Business with
Groups
of
Employees--
When
it
is anticipated thatassociation business
is
to
be conducted
informally or formally with
a
group
of
four or
more
employees,
room
arrangementsmust be
made
at least
one day
in
advance
of the meeting.
The
request for access
must be
made
to the
site
manager
or
supervisor
and
shall
include the
specificdate, time,
and
size
of
a
facility
requested.
The
principal or office
head
will evaluate
the request
and normally authorize
use
of
facilities
while mindful of the
district's
need to balance
fairly
the rights of
all
employees,
of other associations,
and
of
the
district self. Failure to
make
arrangements in
advance
shall
be grounds
for prohibiting
any such meetings
at the
site.
-13-
Notices of Meetings-- The association shall
prepare and post notices of meetings involving
association business matters so that all
employees may be aware of them.
In a memorandum dated October 22, 1976 to all principals
and office heads, Mr. Marmion clarified the prior arrangement
rule to cover both informal meetings with up to three employees
and the more formal meetings with groups of four or more. Thus,
an off-campus representative must make arrangements at least
one day in advance in order to meet with employees either
privately, in groups of up to three or in large meetings.
Organizers who work on campus have slightly more flexibility.
They apparently can meet on an informal basis with groups of
up to three employees without prior registration. However,
even on-campus representatives must make advance registration
10
if they want to speak to four or more employees.
his testimony, Mr. Marmion cited Section IV-B of the bulletin
as authority for this requirement. It provides as follows:
IV. Approved Association Activities by Employees
The following activities may be conducted by employees
who work at a site during non-duty hours as established
and understood by the site manager or supervisor and the
affected employee(s):
B. Communicating on association business matters with not
more than three employees on an informal bas in lounges,
workrooms, lunchrooms, or other areas where employees
ordinarily gather.
NOTE: Employees engaged in such conversations shall
refrain from disrupting or interfering with other district
employees who are otherwise engaged and who do not wish to
be a party to the discussion on association matters. \Jhere
a discussion between individuals becomes a small group
meeting, arrangements must be made for an alternate meeting
place as per section V., paragraph D. of this bulletin.
[Section V-D is reproduced above.]
-14-
The purpose of the three-person conversation rule, according
to Mr. Marmion, is to prevent disruption of employees who are
not interested in listening to the organizer. Under the rule,
organizers who wish to speak to larger groups are required to
register in advance for a separate facility where they can speak
and not disrupt those who do not wish to listen. The prior
registration rule has presented various problems for Federation
organizers. It was the consistent experience of Federation
organizers that a meeting room could not be secured by simply
making a telephone call a day in advance. There was frequently
a difficulty in reaching a person at the school who could
authorize a room. Often, the school simply did not have an
extra room.
Ms. Ribar contacted 70 schools during her efforts to
organize the instructional aides. At every school she was told
she could not talk to the aides without advance arrangements
and although she never called with fewer than three days notice
she was able to secure a meeting room in only three schools.
At Franklin Junior High School she contacted the principal five
times and five times was told there was no room available and
if one became available he would not know until 15 minutes
before she wanted to meet with the aides. At one of the three
schools where she was successful, access to the room was hampered
by a detour caused by the painting the doors. At another
school she was placed in a bungalow in a remote part of the
campus. At the third school she placed leaflets announcing her
-15-
meeting
in
the
mailboxes
of
two
teachers but they
were
never
distributed
and no
aides attended the
meeting.
Aside
from
the
problem
of
getting
a
room,
the en~ire
process
of
advance
registration
presented
a
serious
handicap
to
the
Federation's
ability
to
make
rapid
decisions
on
the
use
of
available
organizing help.
Mr.
King
testified
that
the decision
about
where
to
send
various
persons
often
could
not
be
made
in
advance
because
it
depended
upon
what
had happened
the
day
before.
Yet
with the
advance
registration
rule,
the Federation
was
committed
to
make
prior registration
or
be
barred
from
a
campus.
The
District's
rule
on
the use
of
mailboxes
and
bulletin
boards provides
as
follows:
Site
Mailboxes
and
Bulletin
Boards--
Association
representatives
who
are
employees
of the
district
may
distribute
materials to
employees
during the
employees' non-duty hours
or
may
place materialsin
employee
mailboxes. Also,
materials
may
be
posted
on
employee
bulletin
boards designed
for
associations. Association representatives
who
are not
district
employees
may
distributematerials in
mailboxes during hours
when
schools
and
offices
are
regularly
open and
may
distributematerials to
district
employees
during the
district
employees' non-duty time.
Conditions-- Materials distributed or posted
must be
properly
identified
as
to source
and
must
not
be
distributed
in
such
a
way
as
to
interfere
with classroom
instruction, regular
district
routines, or conditions of cleanlinessor safety.
Notices should be
posted for
no more
than
15
workdays and must
not include
campaign
material related to municipal,
state, or national
elections; statements or other written materialcontaining implications of
a
derogatory or
unprofessional nature relating to
any person;
statements that will
be
disruptive to the
siteoperation; or discussion of personnel problems
or grievances with reference to specific cases.
Materials that
do
not meet these regulations willbe withdrawn from circulation until such time as
corrections are made.
-16-
The Federation encountered a considerable amount of
difficulty in attempting to distribute literature to the instruc-
tional aides. Ms. Ribar testified that some principals tried
to prevent her from distributing literature to aides during the
20 minutes immediately prior to the start of an aide's day.
Sh~ said she was told she could distribute literature to aides
only by leaving it in the school office. Because aides do not
have mailboxes, there was no convenient place she could leave
Federation materials. At some schools she was allowed to put
materials in the mailboxes of teachers who used instructional
aides on the hope that the teachers would then pass the material
onto the aides. About one-fourth of the schools had books where
aides were required to sign in each day. At those schools, she
left the literature by the sign-in books. At other schools,
she had to leave the literature with the principal's secretary.
Ms. Ribar testified that she left literature on the office counter
at the Burnett Elementary School. When she returned to the school
two hours later she saw the secretary removing the literature from
beneath the counter just as she arrived. She testified that at
Lincoln School the principal would not allow distribution of the
literature because he was not sure it had been approved by the
District.
Mr. Marmion testified that he had given verbal rectives
to the pr ipals that literature for the aides could be placed
either in the mailboxes of the teachers who worked with aides or
on the office counter near the sign-in sheets for aideso He said
he received no complaints from the Federation about difficulties
in distributing the literature or in obtaining meeting rooms.
-17-
LEGAL ISSUES
Whether either by adoption or implementation of the regula-
tions the District has:
1) Violated Government Code section 3543.S(b) by denying
the Federation rights guaranteed to it by the EERA?
2) Violated Government Code section 3543.S(a) by imposing
or threatening to impose reprisals on employees, discriminating
or threatening to discriminate against employees or otherwise
interfere with, restrain or coerce employees because of their
exercise of rights guaranteed by the EERA?
3) Violated Government Code section 3543.S(d) by dominating
or interfering with the Federation or contributing financial or
other support to an employee organization or encouraging employees
to join any organization in preference to another?
CONCLUSIONS OF LAW
Initially, it should be noted that the Federation does not
attack -- and this proposed decision does not consider -- all the
provisions of the October 1, 1976 bulletin. In the case of some
of the rules, it is not the wording but the application which is
under attack.
' 11
Under Government Code section 3543.l(b), the Federation
has the right of access to areas in which employees work and the'
right to use various means of communication with employees 0
This right of access is limited to "reasonable times" and the
code section gives the District the right to write "reasonable"
regulations to implement the access procedure ..
11 See footnote No. 4, supra.
-18-
If the Federation has requested access to District employees
at "reasonable times" and the District has refused, the District
will have denied the Federation a right guaranteed to it by the
12EERA, thereby violating Government Code section 3543.S(b).
Similarly, if the District has adopted an access regulation which
is unreasonable, the District will have violated the EERA.
The Public Employment Relations Board has yet to consider
the meaning of "reasonable time" and "reasonable regulation" in
a case. However, a considerable body of precedent about employee
organization access has developed under the National Labor
Relations Act. Under the federal law, employees have the right
13to join and participate in the activities of labor organizations.
It is an unfair labor practice for an employer to interfere with,
restrain or coerce :employees in their exercise of this right or
to d iscourage . memb ers h.ip in . any 1 a b or organization._l4 · · Under these
12see footnote No. 3, supra.
l3In Section 7, the National Labor Relations Act provides:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all
such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
section 8(a)(3).
14section 8(a) of the NLRA provides, in part, as follows:
Sec, 8. ( It 1 be an unfair labor pract for an
employer--
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion: Provided That.
-19-
provisions
in
the
federal
law,
the National
Labor
Relations
Board and
the
federal
courts
have found
it
unlawful
for
an
employer
to
adopt
blanket
restrictions
against
employee
organ-
izational
activity,
It
is clear
under
federal
precedent
that
an employer
generally
can
prohibit
solicitation
for
union
membership
during the
hours
employees
actually
are
working.
But
the
employer
ordinarily
may
not
prohibit
union
solicitation
during
such nonworking
times
as
rest
breaks
and
lunch,
Employer
rules
which
apply only to
non-
working
periods are
presumed
valid
while
rules
which
apply
to both
working
and nonworking
hours
are
presumed
invalid,
Peyton Packing
Co.
(1943)
49
NLRB
828 [12
LRRM
183]
enf'd.
142
F.2d
1009
(5th
C.Ao)
[14
LRRM
792]
as
cited
by
the United
States
Supreme
Court
in
Republic Aviation
Corp.
v.
NLRB
(1945)
324
UoSo
793
[16
LRRM
15
620)0
15
Quoting
from
Peyton Packing,
the
Supreme
Court wrote
in
Republic
Aviation:
The
Act,
of course,
does
not prevent
an employer from
making and
enforcing reasonable
rules
covering the conduct
of
employees on company
time.
Working
time
is
for
work.
It
is therefore within the province of
an employer
topromulgate and
enforce
a
rule prohibiting
union
solicitation
during working hourso Such
a
rule
must be presumed
to
be
valid in the absence
of
evidence
that
it
was
adopted
for
a
discriminatory
purposeo
It
is
no
less true that
time
outsideworking hours, whether before or
after
work,
or during luncheon
or
rest
periods,
is
an employee's time to use as he wishes
without unreasonable
restraint,
although the
employee
is
on
company
propertyo
It is therefore not within the province of
an employer to promulgate and enforce
a
rule prohibiting union
solicitation
by an employee
outside of working hours, althoughon company
propertyo Such a
rule
must be presumed to be an
unreasonable impediment to self-organization
and
therefore
discriminatory in the absence of evidence that special circum-
stances
make
the rule necessary in order to maintain production
or discipline.
-20-
In more recent decisions, the NLRB has refined the presump-
tions to distinguish cleanly between employer rules which
prohibit solicitation during "working hours" and those which
prohibit solicitation during "working timeo" In Essex International,
Inco (1974) 211 NLRB 749 [86 LRRM 1411] the board held that the
term "working hours" generally is understood to mean the entire
period of time between when an employee begins and completes a
shifto Because a rule prohibiting solicitation during "working
hours" would extend the ban through lunch and rest periods, it
is presumed illegaL The board held that the term "working time"
generally is understood to mean only that portion of a shift when
an employee actually is workingo Because a rule prohibiting
solicitation during "working time" would exclude lunch and rest
periods, it is presumed legaL See e.g., Groendyke Transport, Inc.
(1974) 211 NLRB 921 [86 LRRM 1636] enf'd.530 Fo2d 139 (10th C.A.)
[91 LRRM 2405] o
Where an employer's no solicitation rule is presumptively
invalid, the employer bears the burden of producing evidence to
demonstrate that the rule is necessary to maintain order, discipline
and production. Walton Manufacturing Company (1960) 126 NLRB 697
[45 LRRM 1370] enf'd, 289 F.2d 177 (5th C.A.) [47 LRRM 279L!-]. See
also the partial dissent of Member Fanning in Tri-County Medical
Center (1976) 222 NLRB 1089 [91 LRRM 1323 at 1325]0
In addition to lunch and rest periods, employees also are
entitled to engage in organizational activity during the time
they spend on the company's property prior to the start of a work
-21-
shift
and
following the
completion
of
a
shifto
Employer
rules
which
prohibit
solicitation
during
these
time
periods are
presumed
to
be
invalid
and an employer
with
such
rules
must
produce
justi-
fication
or
be
found
in violation
of
the
federal
lawo
John
Ascuaga's
Nuggett
(1977)
230
NLRB
Noo
43
[95
LRRM
1298]; Contra
Costa
Times
(1977)
228
Noo 71
[96
LRRM
1019];
Barney's
Club,
Inco
(1976)
227
NLRB
No. 74
[94
LRRM
1444];
Blue
Cross
(1975)
219
NLRB
1
[90
LRRM
1063]
o
Even
though
the
employer
ordinarily
cannot
prohibit
employees
from
soliciting their
fellow
workers
during
nonworking
periods,
the
employer
may
be
able to
restrict
the
solicitation
to
nonworking
areaso
Meir
&
Frank
Co.
(1950)
89
NLRB
1016 [26
LRRM
1081];
May
Department
Stores
(1944)
59
NLRB
976 [15
LRRM
173]
enforced
as
modified
154 Fo2d 533
[17
LRRM
985]0
If
the
solicitation is
accompanied by
the
distribution
of
literature,
federal precedent
frequently supports
an
employer's requirement
that
the
activity
be conducted
in
a
nonworking areao
In
Stoddard-Quirk
Mfg. Co.
(1962)
138
NLRB
615
[51
LRRM
1110]
the
NLRB
sustained
a
rule
which
prohibited distribution of
literature
in
working
areas
even during
nonworking
time.
The
NLRB
reasoned
that
the
distribution of
literature
reasonably could be thought to
create
a
litter
This reasoning
has been followed
in
a
number
of
more
recent
caseso
Bankers Club, Inco (1975) 218
NLRB
22
[89
LRRM
1812]; Seng Go.
(1974)
210
NLRB
936 [86
LRRM
1372]; McDonald's Corp. (1973)
205
NLRB
404 [84
LRRM
1316]; but
compare McBride's of Naylor Rd.
(1977) 229 NLRB No. 120 [95
LRRM
1196].
-22-
Wbile
federal
precedent
protects
employee
organizers
who
solict
during
nonworking
hours
in
nonworking
areas,
nonemployee
organizers
have
far
fewer
rights.
Employers
validly
may
post
their
property
against
nonemployee
distribution
of
literature
if
reasonable
alternative
channels
of
communication
are
available
and
the
employer
does
not
discriminate against
the
union
by
allowing
other
distribution.
NLRB
v.
Babcock
&
Wilcox
Co.
(1956)
351
U.S.
105
[38
LRRM
2001].
Under
precedent
from
both the
California
Supreme
Court
and
the
PERE,
it
is
appropriate
that
the
Long Beach
access
regulations
be
analyzed
in
light
of
these
federal decisions. Fire Fighters
Union
v.
City
of Vallejo
(1974)
12
C.3d
608
[116
Cal.Rptr.
507];
Pajaro Valley Education
Association
(5/22/78)
PERE
Decision
No.
51;
Sweetwater
Union High
School
District
(11/23/76)
EERB
Decision
No.
4.
The
Prohibition
Against
Duty-Hour
Solicitation
The
District
rule
provides
that
''all activities
concerning
association
business
...
shall
be conducted
outside
duty hours
of the
workday
for the
individuals involved."
In
its
attack
on
the
rule,
the Federation
relies
heavily
on
NLRB
and
federal court precedent.
The
Federation argues
that
while
on
its
face the rule
would
appear to
prohibit organizational
activities
only during working
periods, the prohibition in practice
extends
beyond
that.
The
Federation notes that in application
the
prohibition includes the
20
minutes before
a
teacher's
first
class
and
the
20
minutes
after
a
teacher's last class.
The
Federation
notes that while
all
teachers are required to be present during
those time periods, most teachers have no assigned duties during
those periods.
Many employees spend that time in lounges or doing
-23-
what
they
wisho
Relying
on
Essex
International,
supra,
211
NLRB
749, and
related
cases,
the
Federation
argues
that
the
District
has
applied
the
rule
to
cover
nonworking
periods
and
it
therefore
is
invalido
The
District
argues
that
the
20-minute
periods
are
working
time
for teachers
and
a
ban
on
organizational
activity
during
that
time
is
lawful
under
the
federal
precedento
The
District
reasons
that
the length of
time
teachers
must
be
present
on
campus
prior
to
school
in
order to prepare for class
is
a
matter
of
discretion for
the board
of education,
citing
as
authority,
Robinson
Vo
Sacramento
City Unified
School
District
(1966)
245
CaloAppo2d [53
CaloRptro
781]
and Warner Vo
City of
Los
Angeles
(1965)
231
Cal.App.2d
904 [42
CaloRptro
502]0
It
should
be
noted
that
the
Federation
makes
no
attack
on
the
District's
rule that
teachers
must
report
to school
20
minutes
prior
to
their
first
class
and remain
until
20
minutes
after their last
classo
The
dispute in
the present
case
does
not involve the
discretion or
flexibility
of
the
District in
determining such matterso
The
dispute
is
about whether
the
District
can
prohibit
employee
organ
ation activity
during
those
two
20-minute
periods,
if it
can be
shown
that
the periods
are
nonworking timeo
On
its
face,
as
the Federation suggests, the policy
seems
to
be
in conformity with federal precedento But
its
application
has been too broado
It is undisputed that the policy is used
to ban
all solicitation efforts during the
20
minutes before
a
-24-
teacher's
first
class
and
the
20
minutes
following the
last
classo
Clearly,
some
teachers are
working
during the
two
20-
minute
periods
and
the
policy properly
may
be
applied
to
themo
Teachers
who
are
on
yard
duty
or
bus
patrol,
or
who
are in
their
classrooms
preparing
for students, are
working
and
the
District
may
lawfully
ban
efforts
to
solicit
themo
However,
there
is
uncontradicted
evidence
that
a
number
of
teachers
spend
all
or
part
of
the
two
20-minute
periods
in
the
teacher
lounges,
drinking coffee
and
conversing with
each othero
Plainly,
those teachers
in
the
lounge
are not
working.
The
very
nature of
spending time
in
the
lounge
suggests
that
the
teachers
so
occupied
are
on
a
rest
break.
The
rule
is
unreasonable
insofar
as
it
prohibits efforts
to
conduct
organizational
activity
among
teachers
who
are not
working
and
who
are
in
nonworking
areas
during the 20-minute
periods before
and
after
school.
In the case
of
the
instructional
aides, the
rule
has been
applied to prevent
efforts
to contact
them
during
their rest
breaks
and
during the
20-minute
periods before
and
after their
workday.
Instructional
aides are not required to
be
present at
school
20
minutes
before
their
first
class
and they are not
required to remain
at
school
until
20
minutes
after their last
classo
It
is
not reasonable, under
NLRB
precedent, for the
District
to
ban
organizational activity at
times completely
outside
an employee's workday.
It is
concluded, therefore, that the Federation had
a
right of access to District teachers
who
were not working and
-25-
who
were
in
nonworking
areas
during the
20
minutes
before
their
first
class
and
the
20
minutes
after their last
class.
In
addition,
the Federation
had
a
right
of
access to
all
instructional
aides
who
were
present
at
school
before or
after
their
work
shift
and
to those
instructional
aides
who
had
rest
breaks during the
day. Because
the
District
employed
the
20-
minute
rule
to
deny
the Federation
access to
nonworking employees,
the
District is
found
to
be
in
violation of
Government
Code
section
3543.S(b).
The
Federation
does
not challenge the
prohibition against
organizational
activity
in
the presence
of
students
and
non-
employees and
the
legality
of that rule
is
not considered
in
this
proposed
decision.
The
Identification
Card Rule
Under
the
District
policy, Federation organizers
who
do
not
work
at
a
particular
campus
must have
a
District-issued
identification
card in order to
conduct
organizational business
on
that
campus.
The
Federation argues
that
the
identi cation card
rule
constitutes
"a
direct
res ction
upon
solicitation
during
nonworking hours"
and
is therefore invalid
under Republic
Aviation Corp., supra,
324 U.S. 793. The
Federation reasons
that the Dis
t 1 s
interest in identifying persons
who
arrive
on
the
campus
can be achieved
satisfactorily
by
requiring
an
organizer to provide any
valid identification.
-26-
The District argues that to require an identification
card for non-site employees "not only is rational by the
dictates of common sense [but] it would be a dereliction of
duty for the Dist ct not to do so. 11 The D t ct argues that
it is entrusted with the responsib ity for the proper and
safe administration of its schools and it would be irrational
to suggest it improper for a school to require a stranger to
register at the office.
Under NLRB v. Babcock and Wilcox Co., supra, 351 U.S. 111,
a nonemployee organizer has no automatic right of access to an
employer's property. However, California law is different
because Government Code section 3543.l(b) provides that an
employee organization has the right of access to a school. In
Government Code section 3540.l(d) the term "employee organization"
is defined to "include any person such an organization authorizes
11
to act on its behalf. 16 Without·doubt, an off-campus organizer,
including a nonemployee, fits within this definition. Thus,
Federation representatives have a statutory right of access to
school grounds.
16 Government Code section 3540.l(d) provides as follows:
3540.1. As used in this chapter:
(d) "Employee organization" means any organization
which includes employees of a public school employer
and which has as one of its primary purposes representing
such employees in the relations with that public school
employer. "Employee organization" shall also elude any
person such an organization authorizes to act on its
behalf.
But there are competing considerations. The District
has the statutory obligation to protect students and to insure
that strangers not disrupt school premises. School authorities
are given considerable power to exclude persons who have no
legitimate business on school grounds 17 and it is a misdemeanor
for a person who has been requested to leave a school to refuse
to do so. 18
It is not unreasonable, therefore, that employee organization
representatives be required to identify themselves when they
enter a school and to produce documentation of their identity.
However, as the Federation argues, the District's "interest in
identifying organizers for the union can be achieved just as
easily by requiring any valid identification when the organizer
arrives on the school premises . II The problem with the
District's process is that it contains inherent delays. Some
period of time must pass between when application is made and
a District-issued identification card is received. Because of
this built-in delay, the Federation is not able to use the
services of an organizer who might become suddenly available
but who has no District-issued identification card.
The D ct can protect its interests by insisting that
Federation organizers produce satisfactory identification before
going onto a school campus .. For example, the combination of a
driver's license and a Federation identification card should be suffi-
cient to satisfactorily demonstrate the identity of any Federation
17S ee Education Code sections 32211 and 44810.
18s ee Penal Code section 626.8.
-28-
organizer. By requiring such a combination of documents, the
District could meet its need to keep strangers off a school
ground and the Federation could meet its need of obtaining
access to employees without delay. If the District desires,
it could continue to offer a special identification card for
organization representatives who wish it. But a requirement
that all organization representatives have such a card is an
impediment to the Federation which satisfies no District need
that cannot be met with less difficulty for the organization.
It is concluded that the requirement that an employee
organization representative have a District-issued identifica-
tion card inhibits the access of an employee organization to
a school facility. The identification card requirement is
therefore found to be in violation of Government Code section
3543. 5 (b).
The Limitation on Organization ~epresentatives
The District rule provides that "normally, no more than
two representatives from the same association will be permitted
at a site for a single visit."
According to the evidence, the limitation of two organizers
presents a problem at large schools which have as many as 120
faculty members. the hearing, Dis ct cated at
it might be possible for more than two organizers to visit a
large school, depending on the circumstances.
The Federation argues that the limitation to two organizers
lacks the flexibility which is required by the PERB in Magnolia
-29-
Educators
Association
v. Magnolia School
District
(6/27/77)
EERB
Decision
No.
19.
The
Federation
contends
that
the
regulation
is
a
continuing
violation
which
has
a
cooling
effect
upon
the
rights
of
the Federation to
engage
in organizational
activities.
The
District
describes the
Federation's
contentions
as
"make
weight"
and
argues
that
Magnolia
is
inapplicable
because
it
relates
to
release
time.
Moreover,
the
District
observes
that
the
regulation
provides
that
"normally" only
two
repre-
sentatives
will
be
allowed because
in
a
small school
two
representatives
could handle the
task.
However,
the
District
continues, there
is clear
evidence
the
District
would be
flexible
in allowing
more
than
two
representatives
on
a
larger
school
site.
Government
Code
section
3543.l(b) assures
employee
organiza-
tions of the
right of
access to school
facilities
"at
reasonable
times"
subject
to "reasonable regulation"
by
the
employer.
Both
parties
have
reasonable
competing
interests
in
any
limita-
tion
on
the
number
of
employee
organization representatives
who
visit
a
campus. The employee
organization
wants
to put
enough
organizers
on
the
campus
to reach
all
of
the teachers in the
time
available.
The
District
wants
to prevent
any
disruption
of
its
educational
program which could be caused
when a
large
number
of outsiders
descend on
a campus
to
engage
organizing.
In actual practice, the parties
do
not appear far apart
on
this matter.
The
Federation's only complaint about the rule
is its application to the high schools and large schools,
-30-
generally.
The
District
agrees
there
is
room
for
flexibility
at
the
larger
schools.
On
its
face, the
rule
is
not
unreasonable.
It
sets
the
two-organizer
limitation
as
the
"normal"
restriction.
The
implication
on
the face
of
the
rule is
that
in
some
circum-
stances
the
District will
allow
more
than
two
organizers.
In
testimony
at
the hearing, the
District stated that
the
rule
is
flexible.
There
is
no
evidence about
how
the
rule actually
is
implemented
because
the Federation never
asked
to
have
more
than
two
organizers
on
a
particular
campus
at
one
time.
Because
the
rule is
reasonable
on
its
face,
a
violation
of
the
EERA
could
be found
only
if
the
rule
were implemented
in
a
manner
that is
not reasonable.
By
the date
of
the hearing,
it
had
never
been
tested
because
the Federation
had
never attempted to
place
more
than
two
organizers
on
a
large
campus.
If
the
District
were
to
apply the
rule inflexibly
so
that
it
is
never
possible for
an employee
organization
to
have
more
than
two
organizers
on
a
campus
at
one
time,
no
matter
what
the circumstances,
that likely
would be
a
violation.
However,
there is
no
evidence
of
such
inflexibility.
It
is
concluded,
therefore, that
the two-representative rule
is
reasonable
and
the
District
did not violate
Government Code
sect
3543.S(b) by
adopting
it.
The
Three-Person Conversation
and
Prior
Arrangement Rules
The
Dis
t'
s
rule
about number
of persons with
whom
an
organizer
can speak and the rule
about advance
registration
for
a
facility
are complicated and
difficult
to understand.
I
In essence, they provide as follows:
1) An
organization representative meeting informally with
employees in lounges, workrooms, lunchrooms and similar areas
-31-
may speak with no more than three employees at a time;
2) The District will provide a room or other facility,
depending upon availability, to an employee organization
representative who wishes to speak with four or more employees
simultaneously;
3) Organization representatives who do not work on a
particular campus must make arrangements at least one day in
advance in order to speak with employees on that campus,
regardless of whether the meeting is to be with small groups
of up to three or larger groups of four or more in a prearranged
facility;
4) Organization representatives who work on a campus must
make arrangements at least one day in advance in order to speak
to a group of four or more in a prearranged facility.
The Federation argues that the three-person conversation
rule must fail under both PERB and federal precedent. Citing
Magnolia, supra, EERB Decision No. 19, the Federation argues
that the District's rule is inflexible and "does not take into
account private conversations . which are in no way disruptive
of the privacy . of other employees." Under federal precedent,
the Federation continues, even a showing that conversations with
four or more employees are necessarily noisy would not be
sufficient justification for the rule. The Federation cites
various NLRB cases involving solicitation rules at hosp als
19
in support of this argument.
19The Supreme Court has granted certiorari in one of the hospital
cases. NLRB v. Beth Israel Hospital, cert. granted 46 L. W.
3446, 3453. In NLRB v. Beth Israel Hospi~ the NLRB found
invalid a hospital rule which prohibited solicitation and
distribution of literature patient areas.
-32-
The
District
contends
that
the three-person conversation
rule
is
a
legitimate
restriction.
The
District
argues
that
employees
have
the
right
to
refuse
to
participate
in organiza-
tional
activities
and
the
rule protects that
right.
The
District
argues
that
it
has adopted
regulations
to
protect
teachers
in faculty
rooms
and lunchrooms
in
accord with
the
requirements
of the
California
Supreme
Court.
Los
Angeles
Teachers
Union
v.
Los
Angeles
City
Board
of
Education
(1969)
71
Cal.2d
551 [78
Cal.Rptr.
723).
20
As
for the
prior
arrangement
rule,
the
District
argues
that
only
Ms.
Ribar
had
difficulty
securing
a
room
and
the
District attributes
that
difficulty
to
Ms.
Ribar
and
not the
policy.
In those cases
where
rooms
were
not
available, the
District
argues
that
it
had
no
obligation
to provide
other
arrangements.
By
adoption
and
enforcement
of these
policies,
the
District
seeks
to vindicate
its
interest
in protecting
employees
who
do
not
wish
to
be
bothered
by
organizational
solicitations
and
to
insure that the educational
program
is
not disrupted.
The
Federations
competing
interest is
to obtain access to
District
employees
in the easiest
manner
possible.
Almost
without doubt, the
District
can adopt
a
regulation
prohibiting
meetings which
are disruptive or
which
terfere
with employees
who do
not wish to take part.
Moreover,
it
is
20As
noted by the Federation in its reply brief, this case offersthe District
no solace. Indeed, the case might be read as a
strong indication that the District's regulations violate the
basic First
Amendment
rights of District employees.
-33-
almost without doubt that the District can require any organiza-
tion to register in adyance in order to use a District room or
other facility for a large meeting. School facilities are for
teaching and any other use must be scheduled around use for
instruction.
But the rules which the District has adopted go far beyond
those requirements. Under the District's approach, all organiza-
tion representatives who do not work on a campus must give at
least a one-day notice before appearing on campus. While advance
notice is justifiable if an organization desires to obtain a
room, no justification was given for why an organization must
register in advance in order to meet quietly with employees who
are on a rest break and in a nonworking area. Since no facilities
are required, there is no scheduling problem which the District
must try to solve. The rule simply stands as an impediment for
an organization like the Federation which must rely heavily on
visits by persons who do not work at a particular school site.
Likewise, there was scant justification given for why
conversations are restricted to three employees at a time.
It is not demonstrable that a conversation with four persons
or five persons cannot be quiet and nondisruptive. It is
legitimate to require that the organizing be nondisruptive.
But the District's artificial restriction on conversations to
a maximum of three employees at at presents an unreasonable
impediment to access.
It is concluded that the District's three-person conversa-
tion rule is an unreasonable limitation on an organization's
access to employees. It further is concluded that the District's
-34-
one-day
advance
registration
requirement
for organizational
representatives
who do
not
work
on
a
campus
is
an
unreasonable
limitation
on an
organization's
access
to
employees.
However,
it
is
concluded
that
the
District
may
prop~rly
require
advance
registration
bz
any
organization desiring to
have
a
District facility
set
aside for
its
exclusive
use.
Restrictions
on
the
Distribution of Literature
The
District's
rule
on
the
distribution
of
literature
allows
employees
to
distribute
materials
during "non-duty"
hours. Organization
representatives
who
are not
employees
may
stribute
literature
to
employees
during non-duty hours
of
the
employees
to
whom
they
are
distributing materials.
Non-employees
also
may
place materials in
employee
mailboxes
at
any
time
during
business hours.
The
Federation
argues
that regardless of the
policy's
wording,
the
District
implemented
the
rule to
block
distribution
of materials
by
Ms.
Ribar to the
instructional aides.
The
District
responds
that
the
failure in distribution of the
materials
lies
with the Federation.
On
its
face, the rule presents
some
ambiguity.
It is
not
clear
whether the rule
bans employee
distribution of
literature
at all
times during the
work day
or merely bans
distribution
during times
when
employees
actually are
working and
permits
it
during
rest breaks. Likewise,
it
is not clear whether non-
employees are prohibited
from
distributing literature to
employees
at all
times during the work day or just during those
-35-
times
while
employees
are
working.
Under
Essex
International,
supra,
211
NLRB
749
and
related
cases,
the
District
may
not
prohibit
the
distribution
of
literature
in
nonworking
areas while
employees
are
on
rest
breaks
or
at
lunch.
An
employer
may
ban
the
distribution of
literature
during
work
times and, under
some
circumstances,
may
ban
distribution at
all
times
in
work
areas.
The
evidence suggests
that
the
rule
was
enforced
so
as
to
impede
Ms.
Ribar's
distribution
of
literature
at
all
times
and
all
places.
By
the
District's
application of
the
20-minute
rule
Ms.
Ribar
was
precluded
from
directly distributing
litera-
ture
to aides
at
all
but
three
campuses.
On
many
campuses
she
was
hindered
in her
efforts
to
place
literature
in locations
where
aides
could
receive
it.
Because
of the
ambiguity
in
the
wording
of
the
rule
and
because
of the
manner
in
which
it
was
enforced
against
Ms.
Ribar,
it
is
concluded the
rule is
an
invalid
restriction
on an employee
organization's right
to
distribute materials.
Alleged Violations of
Government
Code
Sections 3543.S(a)
and 3543.S(d)
In
its
original
charge the Federation accused the
District
of violating
Government Code
sections
3543.S(a) and
(d).
These
contentions
were
consistent with the allegations
made
by
the
Federation in that original charge.
However,
prior to the
start of the hearing the Federation
withdrew the factual allegations which were consistent with
-36-
subsection (a) and (d) violations. In its briefs, the Federation
argues that the District's conduct denied rights guaranteed by
Government Code section 3543.l(b), the provision listing rights
assured to employee organizations. This would be consistent
with an argument that the District violated Government Code
section 3543.S(b), the provision making it an unfair practice
to deny an organization rights guaranteed to it under the EERA.
There is no evidence consistent with a violation of
Government Code sections 3543.S(a) or 3543.S(d) and in its brief(s)
the Federation does not discuss a theory for how the District's
conduct might have been in violation of those sections. There~
fore, it is concluded that the Federation has failed to prove
any violation of Government Code sections 3543.S(a) and 3543.S(d).
Accordingly, the allegation that these sections were violated
is hereby dismissed.
THE REMEDY
It is appropriate that an order be issued to the District
that it cease and desist from enforcing those regulations which
are in violation of the Federation's right of access to employees.
Such an order is in accord with Government Code section 3541.S(c)
under which the PERB is given:
the power to issue a decision and
order directing an offending party to
cease and desist from the unfair practice
and take such affirmative action, including
but not limited to the reinstatement of
employees with or without back pay, as will
effectuate the policies of this chapter.
-37-
It
is
clear that
unless
the
District is
directed
to cease
enforcement
of
certain
of
its
rules,
employee
organizations
will
continue
to
have
difficulty
in
gaining
access to
District
employees.
It
also
is
appropriate
that
the
District
be
required
to post
a
copy
of
this
order. Posting of
the
order
will
provide
employees
with
notice that
the
District
has
acted
in
an
unlawful
manner and
is
being
required
to
cease
and
desist
from
this activity.
It
effectuates
the purposes
of
the
EERA
that
employees
be informed
of the
resolution
of
this
controversy.
A
posting
requirement
has
been
upheld
in~
California
case involving the
Agricultural
Labor
Relations
Act, Pandol and
Sons
v.
ALRB
and
UFW
(1978)
77
Cal.App.3d
822.
Posting orders of the
NLRB
also
have been upheld
by
the
United
States
Supreme
Court,
NLRB
v.
Empress
Publishing
Go.
(1941)
312
U.S.
426 [8
LRRM
415];
Pennsylvania
Greyhound
Lines, Inc.
v.
NLRB
(1938)
303
U.S.
261 [2
LRRM
600].
ORDER
Upon
the foregoing findings
of fact,
conclusions
of
law,
and
the
entire
record of
this
case,
it
is
found
that the
District
has
violated
Government
Code
section
3543.S(b),
and
pursuant to
Government
Code
section
3541.S(c)
of the Educational
Employment
Relations
Act
it
is
hereby ordered
that
the
Long Beach
Unified
School
District,
Board
of Education, superintendent
and
represent-
atives shall:
A. CEASE
AND
DESIST FROM:
1. Enforcing District regulations so as to prevent
employee organizations from having access to employees and
-38-
conducting
solicitation
for
membership
or other organizational
business
during
the
time
employees
are present
on
District
facilities
but
are
not
actually
engaged
in
work,
either
before,
during
or
after
the
work
day;
2.
Enforcing the
District
regulation
which
requires
employee
organization representatives
to obtain
District-issued
identification
cards
in order to
visit
District
facilities
on
organizational business;
3.
Enforcing the
District
regulation
which
precludes
employee
organization representatives
from
speaking
to
more
than
three
persons simultaneously
in
lounges,
workrooms,
lunch-
rooms
and
similar
areas;
except
that
the
District
may
require
that
such
conversations
be conducted
in
a
quiet
and
nondisruptive
manner;
4.
Enforcing
the
District
regulation
which
requires
an employee
organization representative
to
register at least
a
day
in
advance
to
speak
informally with
employees
in
District
lounges,
workrooms, lunchrooms
or
similar areas; except
that
the
District
may
require
registration at least
one day
in
advance
where
the
representative
seeks
exclusive
use
of
a
District facility;
5. Enforcing
Dis
ct regulations
so as to
t
employee
organization representatives
from
distributing literature
to
employees during periods
when
the loyees are
on Dis
ct
facilit
s
but are not actually
working.
-39-
B.
TAKE
THE FOLLOWING
AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
ACT:
1.
Prepare
and
post
at
its
headquarters
office
and
in
each
school
for
twenty
(20)
working
days
in
a
conspicuous
place
at
the
location
where
notices
to
certificated
and
classified
employees
are customarily posted,
a
copy
of
this
order;
2. At
the
end
of
the
posting period,
notify
the
Los
Angeles Regional
Director of
the Public
Employment
Relations
Board
of the action
which
has
been
taken to
comply
with
this
order.
It
is further
ordered
that:
1.
The
Federation's allegation that
the
District violated
Government
Code
section
3543.S(b)
by
its
adoption
of
the
two-
representatives-on-campus-at-a-time rule
is
hereby
dismissed,
and
2.
The
Federation's allegation that
the
District violated
Government
Code
sections
3543.S(a) and 3543.S(d) by
its
adoption
and
implementation
of the access
rules
is
dismissed.
Pursuant to
Title
8,
California Administrative
Code
32305,
this
proposed decision
and
order
shall
become
final
on
June
27,
1978,
unless
a
party files
a
timely statement of exceptions.
See
Title
8,
California Administrative
Code
32300.
Dated: June 2, 1978
Ronald E. Blubaugh
Hearing Officer
u
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