A Manager’s Emails Praising An Employee’s Criticism Of Union Interfered With Union’s MMBA Rights

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Jan 25, 2021

California Public, Professional and Medical Employees, Teamsters Local 911 (Union) represents five classifications of lifeguards in two bargaining groups at the City of San Diego.  At all relevant times, the Union and the City were parties to a single memorandum of understanding (MOU) covering both units.

The City’s Police Department receives all emergency 911 calls.  Prior to December 2016, the City’s police dispatchers would transfer certain emergency calls to one communications center to dispatch firefighters and paramedics, and to a separate center to dispatch lifeguards.

On December 15, 2016, the City changed its policy to require dispatchers to first route inland water rescue calls to the firefighters and paramedics.  Under the new policy, dispatchers began to send firefighters as the primary responders to certain calls to which lifeguards had previously responded.  The Union perceived this change caused a loss of bargaining unit work and filed a grievance.  The Union also protested the policy change in letters to the City Councilmembers and the City’s Fire Chief in January and February 2017.

In March 2017, the Union claimed at its press conference that the new dispatch policy had contributed to the drowning of a young child.  Soon afterward, the City held its own press conference to present its view of the tragedy.  At a morning briefing after the Union’s press conference, the City’s Lifeguard Chief told the lifeguards that Department management was “displeased” at the Union’s performance at the press conference and that each lifeguard participant would be held accountable.  A Marine Safety Lieutenant emailed other lifeguards from his personal email account using the subject heading “Lifeguard Union Fail” and indicating that the Union’s press conference had let down City lifeguards and sullied their reputation. The Lifeguard Chief responded to the Marine Safety Lieutenant by email to praise him for his leadership.

In June 2017, the City and the Union executed a settlement agreement requiring the Union to dismiss the 2016 dispatch policy grievance.  In exchange, the City agreed to rescind the new dispatch policy and restore the status quo that existed prior to December 2016.  Additionally, the parties agreed to meet and confer in accordance with the Meyers-Milias-Brown Act (MMBA) on the mandatory subjects of bargaining, including the dispatch procedure for inland water rescue.

Thereafter, the parties met to negotiate on several occasions. The City’s initial proposal for a new dispatch procedure largely mirrored the procedure the City had agreed to rescind under the grievance settlement agreement.  The Union responded by filing an unfair practice charge.  While the parties continued negotiating, they were never able to reach an agreement.  The City maintained the same dispatch policy it had followed prior to the grievance.

During this same time, the Union and the City were also disputing the makeup of the City’s special search and rescue teams and their deployment to Hurricane Harvey.  The Union’s spokesperson held another press conference to protest what he considered to be the Fire Chief’s action to block a City search and rescue team from responding to that hurricane.  The City issued its own press statement in response.  The Fire Chief then decided to reduce lifeguard representation on one of the City’s special search and rescue teams because he did not believe the lifeguards had all of the necessary skills or experience for emergency operations.

Following this press conference, the same Marine Safety Lieutenant emailed an internal distribution list with the subject heading “Union Fail Part V.”  In this email, the Marine Safety Lieutenant referenced a letter from another city’s fire chief that criticized the Union’s comments at the press conference.  He also wrote that based on the Union’s actions, lifeguard representation on a particular search and rescue team was being reduced by 40%.  The Lifeguard Chief once again praised the Marine Safety Lieutenant via email. The Fire Chief then reduced lifeguard representation on the team in question from 11 lifeguards to seven. The City later promoted the Marine Safety Lieutenant to a position in another unit.

The Union then amended its unfair practice charge to allege the City violated the MMBA by 1) negotiating in bad faith during the negotiations required under the grievance settlement; 2) retaliating against the Union and the employees it represents for protected activities, and 3) sending emails that constituted unlawful interference with MMBA rights.

The Public Employment Relations Board (PERB) addressed each of the Union’s allegations in turn.  First, PERB concluded that the City did not bargain in bad faith in the negotiations following the grievance settlement. PERB noted that the City adequately explained its proposals and showed flexibility in its approach from the outset.  In addition, multiple City witnesses testified that the City indeed reverted to the pre-grievance dispatch policy pursuant to the settlement agreement.  PERB dismissed the Union’s bad faith bargaining claim.

Second, PERB considered the Union’s retaliation claim.  To establish a prima facie case of retaliation, the charging party has the burden to prove that: 1) one or more employees engaged in an activity protected by a labor relations statute that PERB enforces; 2) the respondent had knowledge of the protected activity; 3) the respondent took adverse action against one or more employees, and 4) the respondent took the adverse action “because of” the protected activity.  If the charging party meets its burden, the responding party then has the opportunity to prove that it would have taken the same action absent protected activity.

PERB found the Union could establish a prima facie case.  But, PERB ultimately concluded the City could prove that it would have taken the same action, even absent the Union’s protected activities.  PERB found that an email from the Marine Safety Lieutenant to the California Office of Emergency Services Fire and Rescue Chief, more than any protected activity, caused the Fire Chief to reduce lifeguard representation on one of the City’s special search and rescue teams.

Lastly, PERB concluded that two emails the Lifeguard Chief sent to the Marine Safety Lieutenant praising him for the “Union Fail” emails constituted unlawful interference. To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to protected MMBA rights.  First, PERB found that the emails linked the reduction of Union work to the Union’s press conference.  Second, PERB reasoned that lifeguards learning of these emails could infer that they might avoid adverse action or obtain preferential treatment if they opposed Union leadership.  PERB found that this was especially true in light of the Lifeguard Chief’s statement that lifeguards participating in the first press conference would be held accountable.

California Public, Professional and Medical Employees, Teamsters Local 911 v. City of San Diego, PERB Decision No. 2747-M (2020).


This case demonstrates that unfair practice charges often involve numerous distinct claims and incidents.  Management can avoid interference charges by not praising employees for opposing an employee organization’s leadership.

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