Regents of the University of California (PERB 0366H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY POLICE
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-117-H
PERB Decision No. 	366-H
December 16, 	1983
Appearances; 	Robert A. 	Jones, 	Representative 	for Statewide
University Police Association, 	Donald L. 	Reidhaar,
James N. 	Odle 	and Marcia J. 	Canning, 	Attorneys 	for 	the Regents
of 	the 	University 	of California.
Before Tovar, Morgenstern and Burt, 	Members.
DECISION 	AND 	ORDER
BURT, 	Member: 	This 	case 	is before 	the Public Employment
Relations Board 	(Board) 	on 	exceptions 	filed 	by 	the Statewide
University Police Association 	(SUPA) 	to 	the 	attached 	proposed
decision 	of 	the 	administrative 	law judge 	(ALJ) 	and 	the 	response
of 	the 	Regents of 	the University of California 	(University).
SUPA 	excepts 	to 	the 	dismissal 	of 	its 	charges 	alleging 	that 	the
University violated subsections 3571(a), 	(b), 	(c) 	and 	(d) 	of
the 	Higher 	Education Employer-Employee 	Relations 	Act 	(HEERA)1
by 	the 	conduct 	of 	a police 	chief 	who made promises 	of 	benefits
1The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq.
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to 	bargaining 	unit 	employees 	conditional 	upon 	abandonment 	of
their 	membership 	in SUPA.
The 	Board 	has 	carefully 	reviewed 	the 	entire 	record 	in 	this
case 	in 	light 	of 	the exceptions 	and 	the 	response 	thereto. 	We
adopt 	the ALJ's 	findings of 	fact 	and 	conclusions 	of 	law, 	and
hereby ORDER the 	unfair 	practice 	charge 	in Case No. 	SF-CE-117-H
DISMISSED.
Members Tovar 	and Morgenstern 	joined 	in 	this Decision.
2
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-117-H
PROPOSED 	DECISION
(2/25/83)
Appearances; 	Robert A. 	Jones, 	representative 	for 	the Charging
Party, 	Statewide 	University Police Association; 	Marcia J.
Canning, 	attorney 	for 	Respondent Regents of 	the 	University of
California.
Before; 	Marian Kennedy, Administrative Law Judge •
PROCEDURAL 	HISTORY
On May 	7, 	1982, 	the Charging Party, 	Statewide University
Police 	Association 	(hereafter 	SUPA) 	filed 	an 	unfair 	practice
charge 	against 	the Respondent, 	Regents 	of 	the University of
California 	(hereafter 	Respondent 	or 	UC) 	alleging 	that
Respondent violated sections 3571 	(a), 	(b), 	(c) 	and 	(d) 	of the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(hereafter
HEERA or 	the Act).l 	The 	charge 	alleged 	that 	a supervisor 	of
Respondent made promises of 	benefits 	to bargaining 	unit
1HEERA 	is 	codified 	at 	California Government Code
section 	3560, 	et 	seq., 	all 	section 	references are 	to the
Government 	Code 	unless 	otherwise 	stated.

employees 	conditional 	upon 	abandonment of 	their membership 	in
SUPA.
A complaint was 	issued 	on June 	10, 	198 2, 	and Respondent
filed 	its 	answer 	on June 	30, 	1982, 	admitting certain facts but
denying 	that 	parts 	of 	the 	alleged 	statements 	were 	made 	and
denying 	that 	any 	statements 	actually made 	constituted 	an 	unfair
practice.
An 	informal 	conference 	was 	conducted 	by 	an 	administrative
law 	judge 	of 	the 	Public 	Employment 	Relations 	Board 	(hereafter
PERB or 	the Board) 	on July 1, 	1982, 	in Berkeley, 	California but
the dispute 	was 	not 	resolved.
A Notice of Hearing 	was 	issued on July 	27, 	1982, 	and 	a
formal 	hearing 	was 	conducted 	by Administrative 	Law 	Judge 	Gerald
Becker2 on November 	1 and 	2, 	1982, 	in Santa Barbara. 	After
each 	party 	filed briefs, 	the matter 	was 	submitted 	for 	proposed
decision on January 19, 	1983.
FINDINGS 	OF FACT
At 	all 	times 	relevant 	herein SUPA was 	the 	exclusive
representative 	of 	police 	officers 	employed 	by 	Respondent.
2The 	undersigned 	Administrative 	Law 	Judge 	was 	assigned 	to
decide 	this 	case 	pursuant 	to 	PERB Regulation 	32168(b) 	after
Mr. 	Becker 	left 	the employ of 	the PERB. 	As 	is 	evident from 	the
discussion 	that 	follows, 	the 	decision herein does 	not 	depend
upon 	any 	credibility 	resolutions 	between 	conflicting 	testimony
of 	the 	various witnesses. 	Therefore, 	Respondent's 	"motion,"
made 	in 	its 	post-hearing 	brief, 	to 	reopen 	the 	record 	for
additional 	testimony 	if 	the 	decision 	herein must 	turn on 	the
credibility of 	witnesses 	is 	hereby 	denied.
22

Respondent 	and 	SUPA engaged 	in 	collective 	negotiations 	which
reached 	impasse 	in February 	1982 	and 	were 	at 	impasse 	at 	the
time of 	the 	following 	events.
On April 26, 	1982 Russell E. 	Stone, 	Chief of Police at 	the
UC 	Santa Cruz 	campus 	and 	a member 	of 	the 	UC collective
bargaining 	team, 	was 	interviewed 	at 	Santa Barbara 	for 	the
position of 	Chief of 	Police of 	the 	UC 	Santa Barbara campus.
One 	of 	the 	several 	interview panels 	with 	which 	Stone met 	was 	a
panel made 	up of 	rank 	and 	file 	employees of 	the 	Santa Barbara
campus 	police department. 	That 	interview covered 	a number 	of
subjects 	which 	were 	raised 	in questions put 	to Stone 	by 	the
panel members. 	At 	some point during 	the 	interview, 	either 	in
response 	to a question or 	on his 	own 	initiative, 	Stone made 	the
statements 	discussed 	below.3 The 	record 	does 	not 	reveal
3The 	parties 	dispute 	some 	of 	the details 	of 	Stone's
challenged 	statements 	and 	certainly 	the 	inferences 	to be 	drawn
therefrom, 	but 	the essence of 	Stone's 	statements 	is 	the same 	in
both 	his 	testimony 	and 	that 	of 	SUPA President 	Daniel 	Hilker.
Stone 	did 	not 	testify 	to 	the 	precise 	order 	of 	his 	statements.
The 	order 	reconstructed 	herein 	is 	based 	upon 	the 	testimony of
Daniel Hilker 	to 	the 	extent 	that 	it 	is 	uncontradicted. 	The
particular 	order 	of 	the 	statements 	is 	not 	crucial 	since 	Stone
testified 	that 	the 	entire 	exchange 	in dispute 	took only 	1 	to
1-1/2 	minutes.
The 	testimony of 	the other 	two 	employee 	witnesses 	is 	also
generally 	consistent 	with 	the 	facts 	stated 	below. 	Their
testimony 	is 	not 	discussed 	separately 	because 	neither 	witness
had 	a 	very clear 	memory of 	what 	Stone 	said 	and 	tended, 	much
more 	than Stone 	and Hilker, 	to 	testify 	to general 	impressions
of 	the 	conversation 	rather 	than 	Stone's 	actual 	statements.
Hilker 	and 	the 	other 	two 	employee 	witnesses 	also 	testified
regarding 	their 	personal 	reactions 	to 	and 	interpretations 	of
Stone's 	statements.
33

anything 	about 	other 	subjects 	discussed 	at 	the 	interview.
Either 	in 	response 	to a 	question or 	on 	his 	own
initiative,4 Stone 	told 	the 	employees 	on 	the 	panel 	at 	the
interview 	that 	he 	felt 	that 	collective 	bargaining 	was 	"a
shame". 	He said:
I 	think 	the 	University 	is 	a good 	employer.
I 	don't 	like 	the 	adversary climate 	that 	it
[collective 	bargaining] 	causes 	and 	the
umbrella of 	collective 	bargaining 	that makes
it 	really hard 	to, 	you 	have 	to watch your
words, 	be careful what you say.
SUPA President, Daniel Hilker, who was present 	as 	a member
of 	the 	interview 	panel 	responded 	with: 	"I 	really don't 	want 	to
hear 	this." 	Stone 	responded: 	"[Y]ou must 	be 	the 	union
president," 	and Hilker 	answered: 	"Yes 	I 	am."
Stone 	commented 	that 	what 	he 	was 	saying 	"might 	be 	an 	unfair
practice 	charge". 	He 	stated 	that 	his 	employees 	at 	the Santa
Cruz 	campus 	were 	going 	to 	withdraw 	from SUPA because 	"they were
disenchanted 	based 	on 	the 	lack 	of 	communication." 	Stone
testified 	that 	he 	said 	further:
[L]et me 	tell you something else, 	the
University chiefs 	met 	at 	UCLA 	this month 	and
we 	discussed 	recruitment 	and 	retention 	and
the Olympics 	and 	the 	fact 	that 	we're
11 percent 	behind 	the Cal State 	system. 	And
we, 	then, decided an end-run, some way we
could 	go 	back 	to 	our 	individual 	chancellors
4There 	is 	a 	conflict 	in 	the 	testimony regarding whether
or 	not Stone's 	comments 	on 	collective 	bargaining were 	in
response 	to 	a question or 	initiated 	by 	him. 	While 	the
difference might 	be 	important 	in 	some 	circumstances, 	based 	upon
the 	analysis 	of 	the 	comments 	set 	out 	below, 	I 	find 	the
distinction 	not 	determinative 	here.
4

and 	see 	if 	they 	could go 	to Systemwide 	and
see 	if we 	really were 	Broke or 	there was, 	in
fact, monies available.
On further 	examination 	by Respondent's 	attorney, 	however,
it 	became 	clear 	that 	Stone 	did 	not 	in 	fact 	say 	everything 	just
quoted. 	He 	did make 	a 	reference 	to 	the 	chiefs making 	an
"end-run" 	to try to get 	police officers 	an 	11 percent 	raise 	and
he may 	have 	said 	that 	the 	UC police 	officers 	were 	11 	percent
behind 	the 	Cal State 	system 	in wages. 	However, 	Stone's actual
statement 	about 	an 	"end-run" 	did 	not 	refer 	to 	either 	an 	end-run
through 	the 	chancellors 	around 	systemwide 	or 	an 	end-run 	around
collective 	bargaining 	or 	the 	union.
Hilker's 	version 	of 	Stone's 	statements 	does 	not 	differ
substantially 	from Stone's 	except 	with 	regard 	to 	Stone's
alleged 	derogatory characterization 	of 	SUPA. 	Hilker 	testified
that 	Stone 	raised 	the 	issue 	of 	the 	union 	in 	the 	context 	of
saying why 	he 	wanted 	to 	be 	chief 	in Santa Barbara. 	He 	"made
mention 	to 	our 	group about 	our 	union 	being 	sour, 	having 	a 	sour
union."
After 	he made 	mention about 	the 	union, 	he
started 	to 	go 	into a 	little 	more 	about 	the
bargaining 	process, 	and 	I 	advised 	him that
this 	was 	not 	the 	forum 	to 	be 	speaking 	about
collective 	bargaining 	. . . .
After 	I made mention 	that 	I 	didn't 	think
that 	he 	should 	be 	talking, 	he 	confronted me
with, 	"who are you, 	the union president?"
And I 	said, 	I am, 	but 	that 	really wasn't an
issue. 	And 	he went on 	to say that, 	well,
what 	I'm going 	to 	say 	now 	is 	probably 	an
UT	
5

unfair 	labor 	practice, 	but 	I'm going 	to 	say
i t 	anyway 	. . . .
He 	said 	that 	all 	of 	his 	officers 	at 	Santa
Cruz 	had 	given 	him 	letters 	saying 	that 	they
wished 	to 	withdraw 	from 	the 	union 	and 	that
he was 	taking 	care 	of 	them on 	his 	own 	there,
and 	that 	he 	was 	trying 	to do 	things 	for 	the
union 	by 	him and 	several other 	chiefs 	"doing
an 	end-run 	and 	trying 	to 	get 	us 	11 	percent."
(TR. p. 26)
Stone 	testified 	that 	prior 	to 	the 	parties 	reaching 	impasse
in negotiations 	and 	prior 	to 	the 	date 	of 	the 	interview 	in
question, 	Respondent 	had 	made 	no offer 	of wage 	increases 	to
SUPA greater 	than 	6 	percent.
Respondent 	presented 	testimony 	from 	the 	three 	police
officers 	working 	at 	the 	Santa Cruz 	campus 	who 	had 	been SUPA
members 	but 	who 	had 	withdrawn 	their 	memberships 	in February of
1982. 	All 	three 	witnesses 	testified 	that 	they withdrew out 	of
dissatisfaction 	with 	SUPA 	and 	not 	because 	of 	any 	pressure 	or
promises 	by 	Stone. 	One 	witness 	testified 	that 	he 	had 	told
Stone 	of 	his withdrawal 	of membership and 	the 	reasons 	therefor.
Respondent 	also 	presented 	evidence 	to 	show 	Stone's
generally positive 	attitude 	toward 	police 	officer 	unions. 	Both
Stone 	and 	another 	witness 	testified 	that 	Stone 	had 	been a
member 	of 	and 	had 	actively 	supported 	a 	union 	of 	police 	officers
in 	his 	former 	position 	with 	the 	Pasadena 	police 	force 	during
the 	period 	variously 	identified 	by 	Stone 	as 	1966-1968 	and 	by
the other 	witness 	as 	1971-72.
Finally, 	Respondent 	offered 	the 	following 	letter 	in 	support
6
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of 	its 	argument 	that 	even 	if 	Stone's 	statements 	did constitute
an 	unfair 	practice, 	the 	violation 	had 	been 	cured 	by Respondent
disavowing 	the 	misconduct. 	The 	letter 	was 	addressed 	to 	all
police employees, 	dated May 	24, 	1982, 	signed 	by Thomas M.
Mannix, 	Director 	of 	Collective 	Bargaining 	Services 	on 	the
letterhead of 	the Office of 	the General Counsel, 	and 	carried 	a
reference 	to 	the 	charge 	number 	which 	is 	the 	subject 	of 	this
case. 	It read:
Very recently, 	the 	Statewide 	University
Policeman's Association 	filed 	an 	unfair
practice 	charge 	against 	the 	University of
California. 	The 	charge 	alleged 	that 	a
police 	chief 	(and member 	of 	the 	bargaining
team) 	made 	certain statements 	in front of
unit 	employees 	about 	SUPA's 	effectiveness 	at
bargaining 	and 	due 	to 	this 	the 	charge
alleged 	that 	the 	University 	is 	not
bargaining 	with SUPA 	in 	good 	faith.
The 	Regional Office 	of 	the 	Public
Employment Relations Board, 	where 	the 	charge
was 	filed, 	has 	not 	yet 	determined 	if 	the
charge 	sets 	forth a violation 	under 	the
statute, 	the Higher 	Education
Employer-Employee Relations Act. 	No
complaint 	against 	the 	University has 	issued
at this 	time.
The 	Public Employment 	Relations 	Board
must 	initially 	determine 	if 	the 	charge
itself 	"as 	stated" 	sets 	forth 	a violation.
If 	it makes 	this 	determination 	the 	case 	will
be 	set 	for 	hearing 	which will 	give 	both
parties 	an opportunity 	to 	set 	forth 	their
versions. 	An Administrative 	Law Judge 	will
first 	decide 	at 	that 	time 	if 	the 	statements
were made 	as 	alleged and, 	if 	so, 	the Judge
will 	determine 	if 	the 	statements made
constitute 	an 	unfair 	practice.
7

It must 	be left 	to 	the 	Public
Employment Relations Board 	processes, 	as 	set
forth 	above, 	to make 	these determinations.
It 	is 	not 	legally permissible 	for 	the
University 	to 	deal 	directly 	with 	employees
about 	the merits 	of 	the 	charge. 	However,
without addressing 	these matters, 	I want 	to
reassure 	all 	employees 	that 	the 	alleged
statements 	in 	the 	charge 	filed 	by SUPA do
not 	reflect 	the 	position 	of 	the 	University's
bargaining 	team or 	of 	The Regents 	of 	the
University 	of 	California.
The 	University 	of 	California 	recognizes 	that
police 	employees 	have 	collective 	bargaining
rights 	and 	we 	have 	been 	bargaining 	in 	good
faith 	and will 	continue 	to 	bargain 	in good
faith 	with SUPA, 	with 	the 	intent 	to 	reach 	a
contract.
A police 	officer 	witness 	employed 	at 	the 	Santa 	Barbara
campus 	testified 	that 	he 	recalled 	seeing 	the 	above 	letter
posted 	on 	the 	bulletin 	board 	at 	the 	police 	station 	"around
May". 	No 	testimony 	was 	offered 	regarding 	how 	long 	the 	letter
was 	posted.
ISSUES
1. 	Whether 	statements made 	by Stone 	at 	the April 26, 	1982
interview 	with 	bargaining 	unit 	employees 	constituted 	a 	promise
of 	benefits 	to 	employees 	conditioned 	upon 	their 	withdrawal 	from
membership in SUPA in violation of HEERA section 3571 (a), 	(b),
(c) and (d) .
2. 	Whether 	the 	notice 	to 	all 	police 	employees 	posted 	by
Respondent 	in May 	1982 	cured 	any 	unfair 	practice 	which 	may 	have
been 	committed 	as 	stated 	in 1.
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CONCLUSIONS 	OF 	LAW
SUPA 	contends 	that 	the 	statements 	made 	by 	Stone5 in 	front
of 	employees 	constitute 	violations 	of 	the 	following
subparagraphs 	of 	section 	3571 	of 	HEERA:
3571. 	It 	shall 	be 	unlawful 	for 	the 	higher
education 	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 	engage 	in meeting 	and
conferring 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	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; 	. 	. 	.
Specifically, 	SUPA contends 	that 	section 	3571 	was 	violated
in 	that 	Stone's 	statements 	constituted 	an 	offer 	directly 	to
employees 	of 	higher 	raises 	than 	had 	been 	offered 	to 	SUPA 	in
collective 	negotiations 	(11 	percent 	versus 	6 	percent) 	with 	the
implication 	that 	such 	higher 	raises 	would 	result 	from
5 There 	is 	no 	dispute 	that 	Stone's 	statements 	are
attributable 	to 	Respondent. 	Stone 	was 	a 	supervisor 	and 	a
member 	of 	Respondent's 	collective 	negotiating 	team.
9

employees' 	withdrawing 	their 	membership 	from SUPA. 	Although
SUPA does 	not 	offer 	a 	separate 	theory 	for 	each 	of 	the
subsections 	of 	3571 	allegedly violated, 	the 	possible 	violations
will 	be 	discussed 	separately.
The Alleged Section 	3571 (a) 	Violation
HEERA section 	3571.3 	provides:
The expression of any views, 	arguments, 	or
opinions 	or 	the 	dissemination 	thereof,
whether in written, printed, graphic, or
visual form, 	shall not constitute, or 	be
evidence 	of, 	an 	unfair 	labor 	practice 	under
any provision of 	this 	chapter, 	unless 	such
expression 	contains 	a 	threat 	of 	reprisal,
force, or promise of benefit; 	provided,
however, 	that 	the 	employer 	shall not 	express
a 	preference 	for 	one 	employee 	organization
over 	another 	employee 	organization.
With 	the 	exception of 	the 	addition of 	the 	last 	clause, 	this
section 	is 	identical 	to NLRA section 	8(c). 	In Rio Hondo
Community College 	District, 	supra, 	the PERB adopted NLRB
precedent 	with 	respect 	to 	section 	8(c) 	and 	held 	that 	it would
evaluate 	allegedly unlawful 	employer 	speech 	to 	determine
whether 	it 	"contains 	a 	threat 	of 	reprisal or 	force 	or 	promise
of benefit".6
6 The 	Board 	also 	noted 	that 	otherwise 	protected 	employer
speech may 	escape 	protection 	if 	it 	is 	a direct 	communication
with 	employees 	and 	evidences 	an 	employer's 	attempt 	to 	bypass
the exclusive 	representative. 	This 	aspect 	of Respondent's
speech will 	be 	discussed 	below with 	regard 	to 	the 	3571(b) 	and
(c) violations.
The 	Rio Hondo case 	arose 	under 	the 	Educational Employment
Relations Act 	which 	does 	not 	contain 	any provision 	similar 	to
10

If a 	challenged 	statement 	by 	an 	employer 	contains 	no 	threat
of 	reprisal or 	force or 	promise 	of 	benefit, 	then 	it 	constitutes
speech 	protected 	by 	section 	3571.3 	and 	cannot, 	except 	in very
limited circumstances, 	be 	the 	subject of 	an 	unfair 	practice
finding. 	If, 	on the other 	hand, 	a 	threat of reprisal or 	force
or 	promise 	of 	benefit 	is 	found 	in 	the 	challenged 	statement,
then 	such 	statement would violate 	3571.1 (a) 	if 	it 	"tends 	to or
does 	result 	in 	harm 	to 	employee 	rights" 	granted 	under 	the HEERA
and 	the 	employer 	does 	not 	show 	an 	overriding 	operational
necessity 	justification 	for 	the 	statement.7
Applying 	the Rio Hondo 	standard, 	the 	statements made 	by
Stone 	to 	bargaining 	unit 	employees 	do 	not 	contain 	any 	threat 	of
reprisal or 	force or 	promise 	of 	benefits. 	Stone 	testified 	that
he 	said 	that 	he 	thought 	that 	collective 	bargaining 	was 	a
"shame" 	and 	that 	he 	did 	not 	like 	the 	"adversary climate" 	which
collective 	bargaining 	created. 	These 	statements 	are
permissible 	expressions of opinion. 	Even Stone's 	alleged
disparagement 	of 	SUPA as 	a 	"sour 	union", 	which Stone 	denies
saying, 	falls 	within 	the 	scope of protected speech. 	Both 	the
NLRA section 	8(c) 	or 	HEERA section 	3571.3. 	Since 	the PERB was
willing 	to 	apply NLRB precedent 	regarding 	section 	8(c) 	in 	those
circumstances, 	it would obviously apply the 	same precedent
under 	HEERA which 	contains 	a 	"free 	speech" 	clause 	identical 	to
8(c).
7Novato 	Unified 	School District 	(4/30/82) 	PERB Decision
No. 	210; 	Carlsbad Unified School District 	(1/30/79) 	PERB
Decision No. 	89.
11

PERB 	and 	NLRB have 	held 	that 	statements 	of 	opinion 	about 	a
union, 	and 	even 	statements 	disparaging a union, 	are protected
expression of opinion 	so 	long 	as 	they 	do 	not 	contain 	threats 	or
promises.8
The 	remainder 	of Stone's 	statement was, 	according 	to his
testimony, 	that 	his 	employees 	at 	the Santa Cruz 	campus were
going 	to 	withdraw 	or 	had 	withdrawn 	from SUPA because 	they were
disenchanted 	with 	it 	based on 	the lack 	of 	communication, 	that
the 	officers 	were 	paid 	11 	percent 	below 	the 	Cal 	State 	system,
and 	that 	he 	and 	the 	other 	chiefs 	were making 	an 	"end-run" 	to
try 	to get more money 	for 	police 	employees.
Hilker's 	version 	was 	that 	Stone 	said 	that 	the 	Santa Cruz
officers 	had 	given 	him 	letters 	that 	they wished 	to 	withdraw
from 	the 	union 	and 	that 	he was 	taking 	care 	of 	them on 	his 	own
there, 	and 	that 	he 	"was 	trying 	to do 	things 	for 	the 	union 	by
him 	and 	several 	other 	chiefs 	'doing 	an 	end-run 	and 	trying 	to
get 	us 11 percent'".
8 Santa Monica Unified School District et 	al. 	(5/24/78)
PERB Decision No. 	52 	(no violation where 	supervisors 	expressed
discontent 	with 	employee 	association 	because 	their
classifications 	were 	excluded 	from 	the 	bargaining 	unit.);
Fieldcrest Mills, 	Inc. 	(1982) 	259 NLRB No. 	98 	[109 LRRM 1082]
(supervisor 	told 	employees 	that 	union 	"wouldn't 	be 	any 	good"
and 	they 	"were 	just 	talking 	and 	wasting 	our 	money 	as 	far 	as
paying union dues"); 	R.J. Reynolds Tobacco Co. 	(1979) 	240 NLRB
620 	[100 	LRRM 1350] 	(employer 	told employee 	that 	union was
union 	of 	socialists 	and 	communists 	that 	liked 	to 	burn 	and
destroy businesses); 	Elano Corp. 	(1975) 	216 NLRB 691 	[88 LRRM
1485] 	(employer 	made 	disparaging 	and 	profane 	remarks 	regarding
the 	union which 	showed 	his 	contempt 	and 	hatred 	for 	unions).
12

Certainly neither 	version 	of 	these 	statements 	contain 	an
explicit 	conditional promise 	of 	benefits. 	The 	worst 	conclusion
that 	could 	reasonably 	be 	drawn 	from 	these 	statements 	by
bargaining 	unit 	employees 	listening 	to 	them 	is 	that 	some
employees 	were 	no 	longer 	supporting 	the 	union 	and 	that 	Stone
believed 	that 	those 	employees 	did 	not 	need 	the 	union 	to 	get
them 	raises 	because 	the 	chiefs 	were 	trying 	to 	get 	the 	police
officers 	an 11 	percent 	raise.
What 	is missing 	from 	these 	statements 	is 	any 	reasonable
implication 	that 	the 	efforts 	of 	the 	chiefs 	to 	get 	higher 	raises
for 	employees 	was 	either 	conditional 	upon 	employees 	abandoning
the 	union or 	something 	to 	be 	accomplished outside 	the
bargaining 	process.
The 	only 	factual 	basis 	for 	an 	argument 	that 	Stone 	was
promising 	employees 	additional 	benefits 	conditional 	upon 	their
abandoning 	SUPA 	is 	the 	juxtaposition 	of 	his 	comments 	about
police 	officers 	leaving 	SUPA 	because 	of 	dissatisfaction 	with 	it
with 	his 	further 	comments 	about 	the 	chiefs 	trying 	to do 	an
"end-run" 	and 	get more money 	for 	police 	officers. 	No
conditional 	promise 	can 	reasonably be 	read 	into 	these 	two
statements 	taken 	together. 	Rather 	Stone 	appeared 	simply 	to 	be
bragging 	that 	the 	chiefs 	were 	doing 	a 	better 	job on 	behalf 	of
employees 	than 	the 	union.
That 	the 	statements 	cannot 	be 	reasonably 	interpreted 	as 	an
effort or 	threat 	to circumvent 	the 	bargaining process, 	is 	also
13

evident 	from 	the 	context. 	The 	employees 	present 	at 	the
interview 	with 	Stone 	were 	aware 	that 	SUPA had 	been 	bargaining
with 	Respondent 	and 	that 	negotiations 	had 	reached 	an 	impasse.
They may or 	may 	not 	have 	known 	that 	the 	amount 	of 	pay 	raises 	to
be 	given 	employees 	was 	one 	of 	the 	unresolved 	issues.
The 	employees 	present must 	also 	have 	known 	that 	the 	chiefs
themselves 	did 	not 	control 	the 	budget 	for 	salaries 	but 	rather
that 	the 	budget 	was 	controlled 	centrally 	for 	the University
system. 	Thus, 	that 	the 	chiefs would have 	to make an 	"end-run"
to 	try 	to 	get more money 	for 	police 	officers makes 	sense 	in 	the
context 	in which 	the 	parties 	were 	bargaining.
Moreover, 	Hilker's 	version 	of 	Stone's 	statement 	supports
Stone's explanation of 	his 	"end-run" 	comment. 	Hilker 	quoted
Stone 	as 	saying 	that 	he 	"was 	trying 	to do 	things 	for 	the 	union
by him and 	several other 	chiefs 	'doing 	an end-run 	and 	trying 	to
get 	us 	11 	percent1 ". 	That 	statement 	does 	not 	indicate 	an
attempt 	to circumvent 	the 	union 	or 	to 	interfere 	with 	its
representation 	of 	employees.
Finally, 	Stone's 	statement 	cannot 	reasonably be 	interpreted
as 	an offer 	or 	promise 	of 	anything. 	Stone 	said 	that 	the 	chiefs
were 	"trying 	to get" 	employees 	higher 	raises. 	There was 	no
indication 	in 	anything 	that Stone 	said 	that 	he was 	in 	any
position 	to offer 	or 	was 	actually offering 	any 	higher 	raises.
This 	reading 	of 	Stone's 	comments 	is 	particularly
appropriate 	in 	light 	of 	the 	context 	in which 	the 	statements
14

were made. 	Stone 	was 	being 	interviewed 	by a panel of 	employees
for 	the 	job of Chief 	of Police. 	He 	had 	no 	authority over 	those
employees 	since 	they were 	all 	employed 	at 	the 	Santa Barbara
campus 	and Stone was 	chief 	at 	the Santa Cruz campus. 	If
anything, 	contrary 	to 	the 	normal distribution of power 	in
employer-employee relations, 	the 	employees 	in 	these
circumstances 	were 	in a position of 	some power 	in 	relation 	to
Stone 	since 	they 	presumably 	had 	some 	input 	into whether 	he
would be hired 	for 	the 	job. 	At 	the 	very least, 	these were 	not
circumstances 	which would 	tend 	to 	cast 	Stone's 	statements 	in 	a
more 	ominous 	light 	than 	they 	appear 	on 	their 	face. 	The most
reasonable 	interpretation 	of 	Stone's 	comments 	in 	this 	context
was 	that 	he 	was 	attempting 	to 	look 	to 	his 	interviewers 	like 	a
good 	chief 	who 	takes 	care 	of 	his 	officers.
For 	all 	the 	above 	reasons, 	I conclude 	that 	bargaining 	unit
employees 	hearing 	Stone's 	comments 	could 	not 	reasonably 	find
them 	to contain 	any 	threat 	of 	reprisal or 	force 	or 	promise 	of
benefit.9 The 	allegation of 	3571(a) 	violation will 	be
dismissed.10
9see Butler 	Shoes 	(1982) 	263 NLRB No. 	150 	[111 LRRM 1225]
and 	cases cited 	therein. 	In Butler, 	the NLRB found 	that
statements 	to 	bargaining 	unit 	employees, 	that 	benefits 	will 	be
no 	better 	under 	a 	union 	and 	that 	it 	is 	the 	company which 	sets
the wage 	policy and 	provides 	job security, 	not 	the 	union, 	are
simply 	protected 	expressions 	of 	Respondent's 	opinion 	of 	the
relative merits 	of 	unionization within 	section 	8(c) 	of 	the NLRA.
10Over 	objection, 	SUPA presented 	testimony 	from Hilker
and 	two other 	witnesses 	to Stone's 	statements, 	regarding 	their
15

The Alleged 	3751(b) 	and 	(c) 	Violations
SUPA also 	alleges 	that 	the 	same 	statements 	by 	Stone
constitute violations of 3571(b) 	and 	(c): 	denial of employees
organizational 	rights 	and 	failure 	to 	engage 	in meeting 	and
conferring 	with 	the 	exclusive 	representative. 	Both
allegations 	are 	presumably 	based 	upon 	the 	claim 	that 	Stone's
interpretation 	of Stone's 	remarks. 	Hilker 	and one 	other
employee 	testified 	that 	they 	interpreted 	Stone's 	statements 	as
an offer 	of 	a higher 	wage 	increase, 	outside 	of 	collective
bargaining, 	if 	employees 	abandoned SUPA. 	The 	third 	employee
said 	that 	he 	thought 	Stone 	was 	just 	trying 	to 	"sort 	of 	impress
us 	with 	his 	ability 	to 	handle 	things 	as 	chief 	and 	sort 	of
instill 	some 	confidence 	in 	the 	chiefs 	as 	representatives 	of 	the
police officers."
The 	evaluation 	of whether 	statements 	of 	an 	employer
interfere with employees' 	rights, 	however, 	is made on an
objective 	rather 	than 	subjective 	basis. 	The 	charging 	party
need 	only 	show 	that 	the 	employer's 	actions 	would 	tend 	to 	coerce
a 	reasonable employee. 	(Gorman, 	Basic Text on Labor 	Law 	(West
1976) 	p. 	132.) 	The NLRB has 	held 	that 	the 	fact 	that 	employees
may 	interpret 	statements 	which 	contain 	only protected
expressions 	of 	opinion 	as 	threats 	does 	not 	render 	those
statements 	unlawful. 	The 	subjective 	reaction of 	employees 	is
not 	controlling. 	BMC Manufacturing Corp. 	(1955) 	113 NLRB 	823
[36 LRRM 1397] .
Although 	PERB 	has 	not 	yet 	specifically addressed 	the
question 	of 	whether 	evidence 	of 	the 	subjective 	impact 	on
employees 	or 	employer 	conduct 	is 	relevant 	in assessing whether
that 	conduct 	constitutes 	interference 	with 	employee 	rights, 	in
Rio Hondo Community College District, 	supra, 	the Board 	held
that 	it would 	assess 	the 	legality 	of 	employer 	speech 	"in 	light
of 	the 	impact 	that 	such 	communication 	had 	or 	was 	likely 	to 	have
on the 	. 	. 	. 	employee 	[who] 	may be more susceptible to
intimidation or 	receptive 	to 	the 	coercive 	import 	of 	the
employer's 	message." 	The Board 	then 	evaluated 	the 	employer's
statements 	at 	issue 	in 	that 	case 	on 	the 	basis 	of 	how 	those
statements 	could 	be 	"reasonably viewed" 	by 	employees, 	thus
using 	an exclusively objective 	analysis. 	Therefore, 	evidence
of 	the 	employees' 	subjective 	reactions 	to Stone's 	statement
here 	is 	not 	determinative 	and 	should 	have 	been 	excluded.
16

comments 	constituted 	an 	offer 	directly 	to 	employees 	of 	an 	11
percent 	raise, 	although Respondent 	had 	never 	offered 	more 	than
a 	6 percent 	raise 	to 	the 	union 	at 	the 	bargaining 	table.
While making 	an 	offer 	directly 	to 	employees 	of 	benefits
greater 	than 	those 	offered 	to 	the 	union prior 	to 	impasse 	would
constitute a violation of 	3571 (c) 	and derivatively of 	(a) 	and
(b)11 as 	found 	above, 	no 	such 	offer 	was made 	in Stone's
comments. 	Not 	every comment 	of 	an 	employer 	to 	employees
concerning 	subjects 	of 	negotiations 	will 	be 	interpreted 	as 	an
attempt 	to 	bypass 	the 	union. 	In Television Wisconsin,! 2 the
NLRB held 	that 	there 	was 	no 	illegal 	attempt 	to 	bypass 	the 	union
when 	a 	supervisor 	called 	an 	employee 	at 	home, 	discussed 	several
points 	that 	were 	in 	negotiation 	between 	the 	employer 	and 	union,
and 	told 	the 	employee 	how many 	of 	his 	coworkers 	had 	resigned
11Direct 	dealing 	with 	employees: 	General Electric Mfg.
Co. 	(2nd Cir. 	1969) 	418 	F.2d 	736, 	762 	[72 LRRM 2530, 	2551],
cert. den. 	(1970) 	397 U.S. 	965 	[73 LRRM 2600].
Derivative 	violations: 	North 	Sacramento School District
(1981) 	PERB No. 	193; 	San Francisco Community College District
(1979) PERB No. 105.
1 2 ( 1 9 7 6 ) 	224 NLRB 722, 	764-65 	[93 LRRM 1494, 1501].
Cases 	in 	which 	the NLRB 	has 	found 	that 	the 	employer 	illegally
attempted 	to 	bypass 	the 	union 	involve 	far 	more 	unequivocal 	and
egregious 	conduct 	than 	that 	alleged 	here. 	See, 	e.g. 	Cincinnati
Cordage 	& Paper Co. 	(1963) 	141 NLRB 72 	[52 LRRM 1277] 	(employer
and 	supervisors 	on 	several 	occasions 	told 	employees 	that 	they
would 	be 	better 	off 	and 	get 	a 	better 	deal 	if 	they 	bargained
with 	the 	employer 	directly; 	employer 	said 	he 	cannot 	give
employees 	more 	money 	or 	do 	them 	any 	favors 	so 	long 	as 	they 	have
a 	union); 	Houston Sheet Metal Contractors Ass'n 	(1964) 	147
NLRB 774 	[56 	LRRM 1281] 	(although 	there was 	no 	impasse 	in
bargaining, 	the 	employer 	offered 	strikers 	increased 	benefits
and wages 	if 	they would return 	to work on a 	"non-union" 	basis).
17

from 	the 	union. 	The 	Board 	found 	that 	there 	was 	no 	evidence
that 	these 	comments 	were 	part 	of 	a 	campaign 	to 	bargain with 	the
union 	through 	employees 	rather 	than 	with 	employees 	through 	the
union. 	As 	discussed 	above, 	the 	interview context 	in which
Stone's 	statements made 	in 	this 	case 	reinforces 	their 	innocent
nature.
I 	conclude 	that 	Stone's comments 	do 	not 	constitute 	an
attempt 	to 	bypass 	the 	collective 	bargaining 	representative 	or 	a
failure 	to meet 	and 	negotiate 	in good 	faith. 	No violation of
section 3571(b) 	or 	(c) 	is found.
The Alleged 	3571(d) 	Violation
SUPA presented no 	facts, 	apart 	from 	those 	already
discussed, 	to support 	its 	allegation of a 3571(d) 	violation.
Section 	3571(d) 	makes 	it 	unlawful 	for 	an 	employer 	to:
(d) 	Dominate 	or 	interfere with 	the
formation or 	administration 	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. 	. 	. 	.
This 	section 	is 	concerned 	with 	preventing 	an 	employer 	from
either 	usurping 	the 	role 	of 	the 	employee 	association 	to 	a
greater 	or 	lesser 	extent 	by 	assuming 	some 	degree 	of 	internal
control 	over 	union 	policy-making 	or 	favoring 	one 	employee
association 	over 	another. 	No 	facts 	were 	presented 	even
18

arguably addressing 	this 	allegation.13 Accordingly, 	this
part 	of 	the 	charge 	will 	also 	be 	dismissed.14
PROPOSED 	ORDER
Based 	upon 	the 	findings of 	fact, 	conclusions 	of law, 	and
the 	record, 	the 	entire 	charge 	and 	complaint 	are 	hereby
DISMISSED.
13Even 	if 	the 	section 3571(a), 	(b) 	and 	(c) 	violations had
been proved, 	a 	section 	(d) 	violation 	is 	not an automatic
derivative 	of 	those 	other 	violations 	but 	requires 	separate
proof 	of 	facts 	showing 	actual 	dominance 	or 	interference 	with
the 	internal 	running 	of 	the 	union 	or 	the 	impermissible
contribution 	of 	support 	of 	it. 	Sacramento City Unified 	School
District 	(4/30/82) 	PERB Decision No. 	214; 	Santa Monica
Community College District 	(9/21/79) 	PERB Decision No. 	103.
See also Gorman, Basic Text on Labor Law, pp 195-208.
14Since 	no 	unfair 	practices 	have 	been 	found, 	it 	is 	not
necessary 	to 	address 	whether 	the 	notice 	posted 	by Respondent
disavowing 	any 	unlawful 	implications 	in Stone's 	statements
would 	be 	sufficient 	to 	cure 	those 	violations 	and 	justify
dismissal of 	the 	complaint.
19

Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision 	and Order 	shall
become 	final on March 	17, 	1983, 	unless a party files 	a timely
statement of 	exceptions. 	In accordance with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part 	III, 	section 32300. 	Such 	statement of exceptions 	and
supporting 	brief must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	of
the 	Public Employment 	Relations 	Board 	in Sacramento 	before 	the
close of 	business 	(5:00 p.m.) 	on March 17, 	1983, 	or 	sent by
telegraph 	or 	certified 	United 	States 	mail, 	postmarked 	not 	later
than 	the last 	day for 	filing 	in order 	to 	be 	timely 	filed. 	See
California Administrative Code, 	title 8, 	part 	III, 	section
32135. 	Any 	statement 	of 	exceptions 	and 	supporting 	brief must
be 	served 	concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with 	the Board
itself. 	See California Administrative Code, 	title 8, 	part III,
section 	32300 and 	32305 .
Dated: 	February 25, 	1983
Marian 	Kennedy
Administrative 	Law 	Judge
20
\