State of California (Employment Development Department) * * * SUPERSEDED by State of California (Employment Development Department) (2001) PERB Decision No. 1365a-S (PERB 1365S)

SUPERCEDED by State of California (Employment Development
Department) (2001) PERB Decision No. 1365a-S
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
~
~
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT DEPARTMENT),
Respondent.
)
)
)
) 	Case No. 	LA-CE-430-S
PERB Decision No. 	1365-S
December 	17, 	1999
)
))
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Appearances: 	Michael D. 	Hersh, 	Attorney, 	for California State
Employees Association; 	State of 	California 	(Department 	of
Personnel Administration) 	by Linda M. 	Nelson, 	Labor Relations
Counsel, 	for State 	of 	California 	(Employment Development
Department).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case 	is before the Public
Employment Relations Board 	(PERB or Board) 	on exceptions 	to a
proposed decision by a PERB administrative 	law judge 	(ALJ) 	filed
by 	the 	State 	of 	California 	(Employment 	Development 	Department)
(EDD or State). 	The ALJ found that 	the State violated section
3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:
(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. 	For purposes 	of
(

interfering with 	the 	exercise 	of protected 	rights 	and
discriminating against 	an employee, 	Alan Constantino
(Constantino), 	for his participation in protected activities,
thereby 	denying 	the 	California 	State 	Employees 	Association 	(CSEA)
its 	right 	to 	represent bargaining unit members.
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the ALJ's proposed decision, 	the 	transcripts 	and
exhibits, 	and the 	filings 	of 	the parties. 	The Board hereby
reverses 	the 	proposed decision and dismisses 	the 	unfair practice
charge 	and 	complaint 	in accordance with 	the 	following decision.
BACKGROUND
CSEA is 	the 	exclusive 	representative 	of 	employees 	in nine
state bargaining units 	including Units 	1, 	4 and 15, 	and the State
is 	the employer within the meaning of 	the Dills Act.
EDD's 	former Long Beach office 	on 	Pine 	Street 	housed
approximately 70 	employees 	including 	10 managers. 	The work
stations 	for the 	60 	rank and 	file 	employees 	located at 	the 	office
were 	contained 	in one 	large area which was 	not 	accessible 	to 	the
public, 	nor did the public have visual 	access 	to the employees'
work area.
The practice at 	the 	Pine Street 	office was 	for employees 	to
take 	a 	15-minute break 	in 	the morning and another 	in 	the
afternoon. 	Employees 	took their morning breaks 	at various 	times
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between 	10:00 	a.m. 	and 	11:00 	a.m.. 	Upon being hired, 	employees
signed up 	for a particular break time; 	however, 	a 	strict 	schedule
was 	not 	normally 	followed and break 	times 	were 	flexible 	for most
employees. 	Certain assignments 	required pre-scheduled
arrangements 	for break time 	so 	that 	telephone 	coverage would be
maintained.
Employee activities 	during break times varied. 	Some
employees 	stayed at 	their desks 	while 	others went 	to 	the break
room or went 	outside 	the building. 	A few employees 	at 	times
engaged 	in 	stretching movements 	at 	their desks 	during 	their
breaks.
On October 8, 	1997, 	employees participated in a CSEA-
promoted 	"unity break" which, 	according to Constantino, 	was
planned at meetings 	in September at which CSEA decided 	to 	conduct
certain worksite activities. 	The purpose 	of 	the planned
activities was 	to publicize 	concerns with the 	status 	of
negotiations 	over new collective bargaining agreements, 	and
demonstrate 	solidarity to employees 	and management. 	The unity
break 	conducted at 	the Long Beach EDD office was 	one 	such
activity. 	It was planned that 	during 	the unity break at 	the 	EDD
office, 	employees would stand 	for one minute and hold up a 	sign
inscribed with a negotiating 	slogan. 	The 	sign was 	a yellow
poster 18 by 24 	inches stating 	"Raises, 	Rights, 	Respect, 	for
State Workers" 	in bright 	red print. 	There was 	no planned
chanting 	or 	other verbal 	activity.
W3

The 	testimony of 	the witnesses varies 	as 	to the 	time 	the
unity break actually 	occurred. 	Constantino 	said 	it 	began at
approximately 10:00 a.m. 	while Kevin Haygood 	(Haygood), 	the EDD
office manager, 	testified that 	it 	occurred at 	approximately
11:00 	a.m. 	According 	to Constantino and other witnesses,
approximately 30 	employees, 	half of 	those whose work stations
were 	located 	in 	the 	large 	area within 	the 	Long Beach office,
participated 	in 	the 	unity break.
While 	similar activities may have been planned 	to 	occur at
other offices, 	the 	record contains 	no evidence 	concerning 	those
activities. 	There 	is no evidence 	that 	similar activities
occurred at 	other locations 	in work areas 	such as 	the 	large 	area
within the 	Long Beach EDD 	office.
When the unity break was 	noticed by EDD managers, 	program
manager Maurice 	Presley 	(Presley) 	left 	a management meeting 	to
talk to 	Constantino, 	who 	Presley believed was 	leading 	the
demonstration. 	Presley and Constantino 	left 	the work area and
were 	in conference 	for five 	or 	ten minutes. 	When they completed
their conference and returned to 	the work area, 	approximately 10
employees were 	still 	standing with their signs. 	First 	Presley
and 	then Constantino 	told 	the 	employees 	that 	the 	demonstration
was 	over and 	the unity break ended. 	Some 	employees 	then 	returned
to work while 	others 	continued 	their break 	in 	the break 	room or
elsewhere.
On October 9, 	1997, 	Haygood gave Constantino a memorandum
which 	stated:
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On October 8, 	1997, 	at approximately 11:00
a.m., 	I became aware of 	some employees
raising signs 	calling 	for a 	raise. 	Some
employees sat at their desks, 	others stood
with signs, 	while others 	including yourself
were 	walking around holding up 	signs.
Maurice 	Presley 	spoke 	to 	you 	and asked what
was going on. 	You advise 	[sic] 	that the
staff 	was participating 	in a 	"Unity Break."
Maurice 	also asked you 	if 	you had 	let me know
about 	this action. 	You replied 	"no" 	and
apologized.
This 	activity 	caused staff 	to 	stop working
for up to five minutes. 	I 	called our Labor
Relations 	office and spoke 	to 	Phyllis Moore.
She advised me 	that 	this 	type 	of
organizational 	union activity was 	not 	to be
held 	inside 	state property, 	nor during state
work time. 	This 	type of activity can be
conducted, 	but must be done outside and
during employee's 	own time.
During a meeting with you, 	Maurice Presley,
Program Manager; 	[sic] 	and Allan Steward,
Program Supervisor, 	you 	indicated this was 	a
planned activity and that 	there was 	going 	to
be another action on October 22, 	1997.
Please be advised, 	you may not 	have an action
such as 	a unity break during 	state 	time 	or
inside 	the building. 	You 	indicated that 	the
action planned for October 22, 	1997, 	would
involve 	an 	outside 	unity break during 	lunch
time.
Ms. 	Moore advised me to put 	this 	in writing
to you. 	Any further activity 	conducted
inside 	the 	office 	and/or on 	state 	time may be
subject 	to Disciplinary Action.
According to EDD, 	the memo did not 	go 	into Constantino's
official personnel 	file, 	but 	it was kept 	in his 	informal 	file at
the 	EDD 	field office.
On October 20, 	1997, 	CSEA filed the 	instant unfair practice
charge. 	The PERB Office 	of 	the General 	Counsel 	issued a
complaint on January 14, 	1998, 	alleging that Constantino
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exercised 	rights 	guaranteed by 	the 	Dills 	Act 	by 	organizing and
engaging 	in 	the unity break and 	that 	the 	State 	took adverse
action against 	Constantino because 	of 	his 	protected activity and
interfered with 	employee 	rights 	to 	engage 	in protected 	conduct,
thereby violating Dills Act 	section 3519(a). 	This 	same conduct
was 	alleged 	to deny CSEA its 	right 	to 	represent 	unit members 	in
violation of Dills Act section 3519(b).
DISCUSSION
Dills Act 	section 3515 	gives 	state 	employees:
. 	. 	• 	the right to form, 	join, 	and
participate 	in the activities 	of 	employee
organizations 	of 	their own 	choosing 	for 	the
purpose 	of 	representation on all matters 	of
employer-employee 	relations.
This 	case 	involves 	allegations 	of 	interference with 	this
protected 	right, 	and discrimination against 	Constantino 	for his
exercise of 	that 	right.
To 	establish unlawful 	interference, 	the 	charging party must
show that 	the 	employer's 	conduct 	tends 	to or does 	result 	in harm
to protected employee rights. 	If 	the harm is 	slight and the
employer's 	conduct 	is 	justified based on operational 	necessity,
the 	competing 	interests 	of 	the 	employer and employee are balanced
to 	resolve 	the 	charge. 	If 	the harm is 	inherently destructive of
protected employee 	rights, 	the employer's 	conduct 	is 	excused only
by 	showing 	that 	it 	resulted 	from circumstances 	beyond 	the
employer's 	control 	and no alternative 	course 	of 	action was
available. 	(Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad) 	at pp. 	10-11.) 	While proof of
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unlawful 	employer motivation 	or actual 	harm to protected 	rights
is 	not 	required in interference 	cases, 	in order to establish
unlawful 	discrimination, 	it must be 	shown that 	the employee
participated 	in protected activity 	of 	which 	the 	employer was
aware, 	and 	that 	the 	employer took adverse action against 	the
employee 	which was 	motivated by 	that participation. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210.)
The 	parties 	dispute 	whether 	the unity break which 	occurred
at 	the 	Long Beach EDD office 	constituted Dills Act 	protected
activity. 	The 	specific 	conduct 	involved an organized activity
during which 	employees 	displayed 	signs 	relating 	to 	CSEA's
contract 	negotiations with 	the 	State 	at 	their work stations
during 	their break period.
Employees 	have 	the 	right 	to 	communicate with 	each 	other at
the worksite about 	their terms 	and 	conditions 	of 	employment.
(Richmond Unified 	School 	District/Simi 	Valley Unified 	School
District 	(1979) 	PERB Decision No. 	99 	(Richmond).) 	In Richmond,
the 	Board adopted 	the 	United States 	Supreme 	Court 	ruling 	in
Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S. 	793
[16 LRRM 620] 	(Republic Aviation Corp.). 	In that ruling, 	the
Supreme 	Court 	stated:
. 	. 	. 	time outside working 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 property.
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, 	although on company
property. 	Such a 	rule must be presumed to be
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an unreasonable 	impediment 	to 	self-
organization 	and 	therefore 	discriminatory 	in
the absence of 	evidence 	that 	special
circumstances make 	the 	rule 	necessary 	in
order 	to maintain production or discipline.
Id.. 	324 U.S. at 803, n. 	10, 	quoting Peyton
Packing Company 	(1943) 	49 NLRB 828, 	843-84	- - 	4
[12 LRRM 183] .
The Board affirmed employees' 	rights 	to 	solicit union membership
and distribute union materials 	at 	the worksite 	in Marin Community
College District 	(1980) 	PERB Decision No. 	145 	and Long Beach
Unified School District 	(1980) 	PERB Decision No. 	130. 	And in Rio
Hondo Community College District 	(1982) 	PERB Decision No. 	260,
the Board cited NLRB v. 	Thor Power Tool 	Co. 	(1965) 	351 	F.2d 584
[60 	LRRM 2237] 	at p. 	585 	for the principle that employees 	engaged
in protected 	conduct must 	be 	given 	some 	leeway 	for 	impulsive
behavior which must 	be balanced against 	the 	employer's 	right 	to
maintain 	order.
But 	there 	is 	a 	critical 	factual 	difference between all 	of
these 	cases 	and 	the 	instant 	case which 	readily distinguishes 	it.
In this 	case, 	the disputed activity occurred in the 	large work
station area within 	the 	Long Beach EDD 	office 	which housed
approximately 60 	employees, 	and while 	the employees who
participated 	in 	the 	unity break did 	so 	during 	their break period,
approximately 	30 	other employees 	at 	adjacent work 	stations 	were
on duty at 	that 	time. 	There are no PERB 	cases which address
analogous 	circumstances. 	However, 	cases decided by the National
Labor Relations Board 	(NLRB) 	offer some guidance 	in this area.
Interestingly, 	the 	excerpt 	from Peyton Packing Company
-
(1943) 	49 NLRB 828, 	843-844 	[12 LRRM 183], 	which the Supreme
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Court 	cited 	in Republic Aviation Corp. 	also 	included the
following:
Working time 	is 	for work. 	It 	is 	therefore
within 	the province 	of 	an employer 	to
promulgate 	and 	enforce 	a 	rule prohibiting
union 	solicitation during working hours.
In G.H. 	Bass 	& Co. 	and Greg Gerritt 	(1981) 	258 NLRB 140
[108 LRRM 1123] 	(G.H. 	Bass), 	the NLRB considered whether an
employee 	had 	the protected 	right 	to distribute union literature
during lunchtime 	to employees 	at 	their work stations. 	Noting
that 	the parties 	did not 	dispute 	the 	right 	to distribute material
"in nonworking areas, 	during nonworking time," 	the NLRB
summarized the 	issue 	in this way:
The 	dispute 	turns 	on whether 	certain work
areas 	during 	the 	lunch break 	in 	the
circumstances 	of 	this 	case 	should be 	treated
as 	nonworking areas 	for the purposes 	of
distributing 	literature.
In G.H. 	Bass, 	the work setting was a shoe manufacturing plant 	to
which 	the public had no access. 	The NLRB 	found that 	the work
area 	in 	question 	essentially became 	a 	lunchroom during 	the 	lunch
period because 	all 	machines 	were 	required 	to be 	shut 	down and
employees punched out during that period. 	Therefore, 	the
distribution 	occurred 	in a 	nonwork area 	during 	nonwork 	time 	and
was 	protected.
In Family Foods 	(1990) 	300 NLRB 649 	[136 LRRM 1212], 	the
NLRB 	found an 	employer's 	restriction 	on 	employee 	solicitation 	of
union membership on company time 	to be 	lawful, 	because 	the
restriction was 	clarified 	so 	that 	it 	did not apply 	to periods
9

when both the 	employee 	solicitor and 	the 	employee being 	solicited
were not 	on duty.
From Richmond and the other cited cases, 	it 	is 	clear that
employees 	have 	the Dills Act protected 	right 	to 	communicate with
each other at 	the worksite 	concerning 	their 	terms 	and 	conditions
of 	employment 	during nonwork time 	in nonwork areas. 	Employees
must be 	given leeway in the 	exercise 	of 	this 	right, 	which may be
restricted by 	the 	employer 	only when 	it 	can be 	demonstrated 	that
it 	is necessary to maintain order, 	production or discipline. 	In
circumstances 	in which employees 	in a work setting not 	accessible
to 	the public all 	take 	their 	lunch or break 	in 	their work area at
the 	same 	time, 	it 	is 	considered a nonwork area during that
nonwork 	time.
But 	the 	cited 	cases 	also 	lead 	to 	the 	conclusion 	that
activities 	such as 	the unity break at 	issue 	in 	this 	case may be
restricted by 	the 	employer 	if 	they do not 	occur during 	nonwork
time 	in nonwork areas. 	In these circumstances, 	the employer must
be 	given 	leeway 	to 	restrict 	those 	activities 	in order 	to maintain
order, 	production or discipline. 	This would include 	situations
in which 	the 	employees 	conducting 	the 	activities 	are 	on nonwork
time, 	but 	the activities 	occur in a work area during a period in
which other 	employees 	are working.
Returning to the facts 	of 	this 	case, 	when Constantino and 30
other 	employees 	conducted 	the 	unity break during 	their morning
break 	in the 	Long Beach EDD office, 	they did so 	in a work area 	in
which approximately 	30 	other employees 	were 	at 	their work
10

stations 	on duty and not 	on break. 	Therefore, 	the unity break
activity did not 	occur 	during 	nonwork 	time 	in a 	nonwork area and
EDD must 	be 	allowed 	to 	restrict 	the activity in order 	to maintain
order 	and production.
Under Carlsbad, 	an allegation of unlawful 	interference must
demonstrate 	that 	the 	employer's 	conduct 	harmed or 	tended 	to harm
protected rights. 	Since 	EDD's 	restriction on the unity break
activity was 	not 	improper, 	CSEA has 	failed to 	show that 	the
State's 	action harmed or 	tended 	to 	harm rights 	protected by 	the
Dills Act. 	In reaching this 	conclusion, 	the Board notes 	that 	the
October 	9 	memorandum Haygood gave 	to 	Constantino 	advised him that
unity break 	activity 	could be 	conducted 	during 	employee 	nonduty
time provided 	it 	did not 	occur 	inside 	the 	office. 	While 	the
record 	contains 	no 	evidence with 	regard 	to 	the 	application of
this policy, 	it appears 	to 	indicate 	that 	the activity could occur
in nonwork areas 	during nonwork 	time 	consistent with 	the 	cases
cited above.
The 	allegation 	that 	the 	State 	interfered with Dills Act
protected 	rights 	by 	restricting 	the 	unity break activity which
occurred within 	the work area 	of 	the 	EDD 	Long Beach office 	on
October 8, 	1997, 	is dismissed.
Consistent with this 	conclusion, 	the Board also 	finds 	that
the 	State did not 	unlawfully retaliate against 	Constantino 	for
his 	exercise 	of protected activity when 	it 	gave him the October 9
memorandum advising 	him of 	the 	restrictions 	on unity break
activity. 	Therefore, 	that allegation is also dismissed.
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ORDER
The unfair practice charge and complaint 	in Case
No. 	LA-CE-430-S are DISMISSED WITHOUT LEAVE TO AMEND.
Members Dyer and Amador joined in this Decision.
12