State of California (Employment Development Department) (PERB 1365SA)

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
Remand From Court
PERB Decision No. 1365-S
PERB Decision No. 1365a-S
May 	4 , 	2001
Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: 	This case originally came 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 interfering with the exercise of protected rights and
'TThe	he 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
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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.
otherwise to interfere with, restrain, or coerce employees because of
their exercise of rights guaranteed by this chapter. For purposes of
this subdivision, "employee" includes an applicant for employment
or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
On December 17, 1999, the Board issued State of California (Employment
Development Department) (1999) PERB Decision No. 1365-S (hereafter referred to as
Decision No. 1365-S). In that Decision, the Board reversed the ALJ's proposed decision and
dismissed the entire unfair practice charge and complaint.
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On January 18, 2000, CSEA filed a Petition for Writ of Mandate in the California Court
of Appeal. 	On October 17, 2000, the Court of Appeal granted the petition, affirmed Decision
No. 1365-S with a modification, and remanded the case to PERB for further action.2 Pursuant
to that Order, and after review of the entire record, the Board issues this opinion, which
modifies Decision No. 1365-S by finding that the State of California violated the Dills Act
when it threatened to interfere with protected rights under the Dills Act by issuing an
October 9, 1997, memorandum to Constantino, to the extent that the memorandum prohibited
future unity breaks and related activities in nonwork areas during nonwork time.3 All other
aspects of the charge and complaint are hereby dismissed.
2The Court of Appeal also ordered that its opinion is not to be published in the official
reports.
3In Decision No. 1365-S, the Board dismissed allegations related to the memorandum.
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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 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
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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.
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
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).
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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 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
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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 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, 843-844
[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.
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But there is a critical factual difference between 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 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
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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 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 stations on duty and
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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 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. Accordingly, 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.
With regard to the October 9, 1997, Haygood memorandum, our analysis is different.
That memorandum prohibits Constantino or other EDD employees from engaging in job
actions "during state time or inside the building" in which the EDD office is located. Because
the term "state time" as used in the Haygood memorandum is ambiguous, and because
"nonwork areas" may exist inside the EDD building, the memorandum was overbroad to the
extent that it appears to prohibit communication among employees during nonwork times
and/or in nonwork areas. 	Under the cases discussed above, employees have the right to
communicate with each other at the worksite about their terms and conditions of employment
outside working hours. As PERB held in Richmond, supra, by adopting the United States
Supreme Court's statement in Republic Aviation Corp.:
... 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.
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Accordingly, when the State issued the October 9, 1997, memo to Alan Constantino, it violated
the Dills Act to the extent that the memo appears to prohibit communication among employees
during nonwork times and/or in nonwork areas.
ORDER
Upon the findings of fact and conclusions of law and the entire record in this case, and
pursuant to the Ralph C. Dills Act, Government Code section 3514.5, it is hereby ordered that
the State of California (Employment Development Department) (State) shall:
A. CEASE AND DESIST FROM:
1. 	Interfering with and discriminating against Alan Constantino (Constantino)
for the exercise of protected activity.
2. 	Denying the California State Employees Association its right to represent
bargaining unit members in their employment relations with the State.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. Remove and destroy the October 9, 1997, memo to Constantino.
2. Within 10 days of service of this decision, post at all work locations where
notices to employees customarily are placed, copies of the notice attached as an appendix
hereto. 	Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that this notice is not reduced in size, altered, defaced
or covered by any other material.
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3. Make written notification of the actions taken to comply with this Order to
the Sacramento Regional Director of the Public Employment Relations Board in accordance
with the director's instructions.
Members Baker and Whitehead joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-430-S, California State Employees
Association v. State of California (Employment Development Department), in which all parties
had the right to participate, it has been found that the State of California (Employment
Development Department) (State) violated the Ralph C. Dills Act (Dills Act), Government
Code section 3519(a) and (b).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with and discriminating against Alan Constantino (Constantino)
for the exercise of protected activity.
2. 	Denying the California State Employees Association its right to represent
bargaining unit members in their employment relations with the State.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
Remove and destroy the October 9, 1997, memo to Constantino.
Dated: 	STATE OF CALIFORNIA (EMPLOYMENT
DEVELOPMENT DEPARTMENT)
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.
e	-	 I
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