PERB Decision No. 0317E•San Francisco Unified School District (PERB 0317E)
San Francisco Unified School District (PERB 0317E)
PERB Decision No. 0317ECalperb8 juin 1983
Texte intégral
S'l'ATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN FRANCISCO FEDERATION OF TEACHERS,
AFT LOCAL 61,
Charging Party,
V •
SAN FRANCISCO UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
_____________________ )
Case No. SF-CE-654
PERB Decision No. 317
June 8, 1983
Ap;eearances: Stewart Weinberg, Attorney {_Van Bourg, Allen,
Weinberg & Roger) for San Francisco Federation of Teachers, AFT
Local 61 ; Celia Ruiz, Attorney (Breon, Galgani, Godino &
O'Donnell) for San Francisco Unified School District.
Before Gluck, Chairperson; Tovar and Morgenstern, Members.
DECISION
MORGENSTERN, Member: The San Francisco Federation of
Teachers, AFT Local 61 (AFT or Charging Party) appeals the
dismissal of its unfair practice charge by the regional
attorney of the Public Employment Relations Board (PERB or
Board). The Charging Party alleged that the San Francisco
Unified School District (District) violated subsection
3543.S(a) of the Educational Employment Relations Act (EERA or
Act)1 when School Board President Rosario Anaya sent a letter
to all District employees which concerned certain remarks of
James E. Ballard, AFT Local 61 president.
lEERA is codified at Government Code section 3540FACTS AFT Local 61 is the exclusive representative of a unit of paraprofessional employees. On Tuesday, March 16, 1982, the San Francisco Examiner published an article referring to the parties' negotiations. Ballard was extensively quoted. He indicated, inter alia, that, as a member of the San Francisco Labor Council, he would not agree to endorse Board President Anaya. Thereafter, on March 17, 1982, Anaya responded to Ballard's points in a letter prepared using District facilities and resources and sent to every District employee. The letter set forth Anaya's record concerning her opposition to layoffs and her fear that wage increases could cause staff cutbacks. Anaya criticized Ballard and expressed confidence that her own labor relations record would demonstrate .her commitment to proper wages and working conditions for all District employees. et seq. All statutory references are to the Government Code unless otherwise specified. Subsection 3543.S(a) states: 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. 2
On June 2, 1982, PERB's regional attorney dismissed AFT's
charge and concluded that Anaya's letter was not violative of
EERA. PERB advised the charging party:
Anaya's letter cannot be seen, as
constituting a threat or promise to
employees. It does not, for example,
promise to condition her support of the
paraprofessional contract on Labor Council
endorsement, nor does it threaten any action
absent endorsement. Absent evidence of a
prohibited threat, or promise, the letter
itself does not constitute a violation of
the Act.
While facially non-coercive speech, such as
Anaya's letter, does not constitute a prima
facie violation of the Act, such speech may
constitute a violation when considered as
part of a total course of conduct aimed at
interfering with guaranteed rights.
{Citations omitted.) Your charge contains
no facts which would indicate that Anaya's
March 17 letter was anything more than an
isolated expression of her views regarding
issues important to District employees.
Therefore, no prima facie violation is
stated.
On June 21, 1982, AFT appealed the dismissal of the charge
arguing that an employer's conduct or speech can interfere with
rights of employees "even though it may not contain a threat of
reprisal or force or promise of benefit." AFT also urges that
Anaya's letter impliedly promises a benefit to her employee
supporters. It also argues that Anaya's letter is improper
because permissible employer expressions must relate to the
District's position relevant to matters of legitimate employer
concern. Additionally, AFT claims that Anaya's letter was an
3effort to communicate directly with the employees and thereby bypass the exclusive representative and interfere with the union's intimate relationship with its members. The District's response to AFT's appeal was submitted on July 7, 1982, and characterizes Anaya's letter as permissive free speech consistent with PERB precedent. DISCUSSION In Muroc Unified School District (12/15/78) PERB Decision No. 80, the Board first announced that the public school employer is not precluded from freely expressing its views despite the fact that EERA does not expressly protect employer speech. Thereafter, in Antelope Valley Community College District (7/18/79) PERB Decision No. 97, the Board found that statements made by the employer violated EERA because they were "calculated to interfere with, restrain and coerce the employees" and "created a threatening and coercive climate •••• " In Rio Hondo Community College District (5/19/80) PERB Decision No. 128, the Board expressly adopted the free speech standard of the National Labor Relations Board and held: ••• that an employer's speech which contains a threat of reprisal or force or promise of benefit will be perceived as a means of violating the Act and will, therefore, lose its protection and constitute strong evidence of conduct which is prohibited by section 3543.5 of the EERA. 4
The regional attorney's dismissal of the charge accurately referred to the above-mentioned cases and appropriately concluded that Anaya's letter was not coercive or threatening to employees. On appeal, however, AFT asserts that an employer's communication can interfere with employees' rights even though it contains no threat of reprisal or force or promise of benefit. AFT cites the Chairperson's concurrence in Rio Hondo which states: ••• it is conceivable that under certain circumstances employer speech may be free of such explicit character and yet so impliedly intimidating or coercive as to interfere with the exercise of employee rights. The regional attorney's dismissal did not speak in terms of "implied" intimidation. It did, however, expressly consider and reject the possibility that, while facially noncoercive, Anaya's letter was coercive when considered as a part of a total course of conduct. In this regard, the regional attorney found that no factual allegations were included in the charge and thus no inference could be drawn. We agree. In this appeal, AFT also asserts that a condition precedent to affording free speech protection to an employer's communication is that the comment must be a permissible expression of the District's position relevant to matters of legitimate employer concern. It argues that the District has no legitimate interest in securing Anaya's reelection. In light of the factual circumstances in this case, we disagree. 5
We find that Anaya's letter was directly relevant to the ongoing negotiations and the school board's role in rejecting the Charging Party's pay raise proposal. Finally, AFT argues that the regional attorney failed to find that Anaya's letter was an improper effort to bypass the exclusive representative. In Modesto City Schools (3/8/83) PERB Decision No. 291, the Board perceived the district's Staff Update as communication which was intended to derogate the exclusive representative's authority. The Board viewed the newsletter as representing to employees that an offer had been made to the union. Since no offer had been made, the newsletter, in effect, directly presented an offer to employees which had not been presented to their representative. Anaya's letter makes no offer to employees nor does it appear directed to undermine AFT's authority to negotiate on behalf of the unit employees. Thus, while we affirm the conclusion noted in Rio Hondo, supra, that under certain circumstances an employer's communication will not be protected if it evidences an attempt to bypass the exclusive representative, we find no such purpose in Anaya's letter. ORDER Upon the foregoing decision and the entire record in this case, the Public Employment Relations Board ORDERS that the regional attorney's dismissal of the unfair practice charge in Case No. SF-CE-654 is hereby AFFIRMED. Chairperson Gluck and Member Tovar joined in this Decision. 6
?UBU<.: EMPLOYMENT RE'...ATION~ SOARD fam f ranci$CO Regional Offic& 177 Post St., 9th Floor Son fran=o, CaJifomia 94108 (415) 557-1350 Jtme 2, 1982 Stewart Weinberg Van Balrg, Allen, Weinberg & Ebger 875 Battery St;reet .. San Francisco, CA 94lll !IJMUNO G. ~ Ja.. Co1•1w Re: San Franciso::> Unified School District, Charge No. SF-cE-654 Dear Mr. Weinberg: YOJr charge alleges that School Board President Rosario Anaya violated the EERA by s~rxling District employees a letter responding to remarks made by Union President James Ballard. I indicated to you in a letter dated May 10, 1982 that the charge did not state a prima facie violation of the EERA. (Gov't. Code 3540 et seg.} Your letter of May 12, 1982 did not cure the deficiencies in your cnarge. The fact that Ms. Anaya may have improperly expended public funds in mailing the letter does not necessarily mean that her conduct interfered with rights guaranteed tmder the EEFA. Moreover, I have found no case authority for the proposition that the misuse of public noney serves to__ rerrove the ronduct complained of here from the realm of employer free -:-· . speech. Therefore, for the reasons stated in my letter of May 10, and reiterated here, I am dismissing your charge with leave to amend. Anaya's letter was written in response to a San Francisco Examiner article of March 16, 1982. The article cx,ncerned pending negotiations between San Franciso::> Federation of Teachers CFI'/AET (hereafter Union) and the District over salary increases for District paraprofessionals. Union President James Ballard was quoted in the article as saying: ''When there are three members of the school board saying they're anxious to have it," said Ballard, "then there's something that can be done •. Anaya will be running for re-election. She will want an endorsement from the San Francisco Labor Council. The fact that I'm sitting on the San Francisco Labor Council Board means it \>."Ould not be surprising if I \>."Ould not be at all anxious for the Labor Council to endorse her."
Stewart Weinberg
,June 2, 1982
Page 2
In response to this article, the next day Anaya wrote an open letter to
all San Francisco Unified School District staff. The first paragraph of
the letter stated that Anaya had been a long-term supporter of "proper
wages an3 working con:Utions" and that she was "distressed" by Ballard's
threat to withhold. l.aoor endorsement of her school board.election bid on
the basis of her position during paraprofessional negotiations. The
letter went on to detail (1) Anaya's voting record on teacher layoff
issues; (2} her positicn in the paraprofessional negotiations; (3) her
voting record on.other C'Ollective bargaining agreements that have come
before the board. Finally, the letter criticized BaJJard's attempts to
blcx::k her endorsement by the Labor Council and ur9ed the·staff to consider
her performance as school board member before making an endorsement.
Based on the oontents of this letter, and relevant case precedent, your
charge as currently writteh does not state a prima facie violation of the
EERA. In a series of cases, PERB has concluded that, despite the fact
that the EERA does not contain specific language guaranteeing employer
free speech, a free speech right is implied in the language and~
of the Act. Rio Hondo Conmunity College District (5/19/80) PERB Decision
No. 128; P..ntelope Valley Comnunit~ C.ollE;9e District (½18/79) PERB. .
Decision No. 97; ?I.J.Iroc Unified Sc ool D1str1ct (12715 8} PERB DeclSl.O_!:
No .. 80. In Rio Hondo, the Board held that under the EERA, employer ·
speech will be analyzed according to the standards adopted by the NLRB in
L~terpreting section 8(c) of the NLRA.l
Under the NLRA, employer speech which contains a threat of reprisal or
force or promise of benefit will lose the protection of section 8{c}.
Absent such a threat, even speech which is highly critical of a
particular union will not constitute a violation of the Act. (See, e.g.,
The Nestle Company (1980) 248 NLRB 732 (no violation found where employer
told employees that lll'lion was "a loser"). .
Anaya's letter cannot be seen as constituting a threat or promise to
employees. It does not, for example, promise to condition her support of
the paraprofessional contract on Labor Council endorsement, nor does it
lSection B(c) of the NLRA provides:
The expressing of any views, argument, opinion, 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 of the
provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.Stewart Weinberg June 2, 1982 Page 3 threaten any action absent endorsement. Absent evidence of a prohibited threat, or promise, the letter itself does not constitute a violation of the Act. While facially non-cx:,ercive speech, such as Anaya's letter, does not constitute a pr:ima facie violation of the Act, such speech may constitute a violation when considered as part of a total CX>Urse of conduct aimed at interfering with guaranteed rights. Antelo~ Valley Community eoμege District, suPra: NLRB v. Virginia Electric and Pa,,er co. (1941) 314 U.S. 459 [19 LRRM 4051]. Your charge contains no facts which would indicate that Anaya's March 17 letter was anything nore than an isolated expression of her views regarding issues i.rrp:)rtant to District employees. 'l'herefo:re, no prima facie violation is stated. Pursuant to Puplic F.mployment Relations Board regulation section 3263O(b) (California Administrative Code, title 8, part III}, you may either (l} amend the unfair practice charge, or (2) appeal the refusal to issue a o:::,mp;taint to the Board itself. Right to Amendment If you choose to amend, the amended charge must be filed with the San Francisco Regional Office Regional Office of the PERB before the close of business (5:00 p~m.} on June 22, 1982, in order to be timely--:- filed (section 32135). Right toApg=al If you choose :not to amend the charge, you may obtain a review of this dismissal of the charge by filing an appeal to the Board itself within twenty·(20} calendar days after service of this Notice (section 32630(b)). Such aa;>eal must be actually rec-eived by the executive assistant to the Board before the close of business (5:00 p.m.) on June 22, 1982, in order to be time filed (section 32135) at the following address: Public F.inployment Relations Board 103118th Street Sacramento, CA 95814 If you file a timely appeal of the refusal, any other party may file with the executive assistant to the Board an original and four (4) copies of a statement in opposition within twenty (20) calendar days following the date of service of the appeal (section 32630(c)). Service All documents authorized to be filed herein except for amenQIJtents to the charge must also be "served" up:Jn all parties to the proceeding, anct
Stewart Weinberg June 2, 1982 Page 4 a "proof of service" must accompany the document filed with the Recrional Office of the Board itself (sections 32655(a), 3263O(b) and 321.40 for the required contents and a sample form) • The document will be considered properly "served" when personally delivered or dep::>Sited in the first-class mail postage paid and properly addressed. E:xtensioo of Time A request for an extension of time in which to file a document with the Board itself JI1.1St be in writing and filed with the executive assistant tothe Boa.rd at the previously noted address. A request for an extension in which to file a document with the Regional Office should be addressed. to the Regional Attorney. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for filing the subject document. The request must indicate gcod cause for and the position of each other party regarding the extension and shall beaccompanied by proof of service of the request upon each party (section32132). Final Date If r.o arrendoo charge or appeal is filed within the specified time limits, the dismissal. will becane final when the time limits have expired. --'. Very truly yours, DENNIS M. ST.JLI..IW\i.~ General Counsel PETER .HABERFELD Regional Attorney By~ ELAINE FEINGOLD Legal Counsel cc: General Counsel ~~al)
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.