I.

STATEMENT OF CONDUCT CONSTITUTING UNFAIR PRACTICE

The Lawrence Livermore National Laboratory Security Police Officers Association ("SPOA" or "Union") is the certified bargaining representative for Security Police Officers employed by the Regents of University of California at Lawrence Livermore National Laboratory ("Laboratory"). Charles Quinones and Matthew Zipoli were employed by the Laboratory as non-probationary Security Police Officers ("SPO") until September 28, 2001, when the Laboratory terminated their employment. SPOs are not peace officers under California law.

Quinones was the SPOA President and Zipoli the SPOA Vice-President at the time of their terminations. Both Quinones and Zipoli held leadership positions in the SPOA for sometime and participated in contract negotiations and processed grievances as union representatives.

The SPOA and the Laboratory were parties to a collective bargaining agreement that expired on September 30, 2000 ("CBA"). Prior to that time, the parties engaged in negotiations for a successor agreement until an impasse was declared. Following mediation and fact-finding, the parties eventually agreed to a successor agreement on August 27, 2001.

The SPOA and the Laboratory have a long history of labor strife dating back to the early 1990s. Over the years, the SPOA filed numerous unfair practice charges and grievances challenging the Laboratory’s unlawful actions. In addition, the SPOA successfully defended Laboratory-supported decertification efforts and an attempt to eliminate the SPOA’s fair share fee arrangement. The Laboratory’s dislike for the SPOA, and organized labor in general, was reflected in its actions.

When Quinones and Zipoli assumed leadership roles in the SPOA, the Union took a more aggressive approach to enforcing its collective bargaining rights and those of its members. Quinones and Zipoli succeeded in building the SPOA’s membership and strength through zealous advocacy and educating bargaining unit members about theirs rights and the benefits of unionization. Quinones and Zipoli were outspoken supporters of the SPOA and critics of the Laboratory’s treatment of bargaining unit members.

In 1999, the Laboratory implemented changes in the work schedules and work hours for SPOs that were not were not well received by bargaining unit members. The Laboratory forced SPOs to work 12-hour shifts rather than the standard 8-hour shifts called for in the CBA. SPOs were also required to work 60 hours per week instead of 40 hours per week, and were scheduled to work additional mandatory overtime. Many SPO’s had their days off routinely cancelled and were forced to work in excess of 72 hours per week on a regular basis. Although the Laboratory asserted that the changes were only temporary, SPOs continued to work the oppressive hours through most of 2000.

In early 2001, the SPOA and Laboratory participated in arbitration proceedings pertaining to further changes in work schedules and work hours. Two additional arbitration proceedings concerned the Laboratory’s unilateral cancellation of scheduled days off and the imposition of discipline on certain personnel without affording due process.

In April 2001, the Laboratory unilaterally changed the SPOs’ work schedules and cancelled their days off. This caused about 30 SPOs to call in sick on the cancelled days off. The Laboratory did not investigate the incident or discipline any SPO for what the Laboratory regarded as a "sickout."

Throughout 2001, Quinones and Zipoli met with the Department of Energy’s ("DOE") Inspector General to report the mistreatment of SPOs, poor working conditions, safety concerns and issues relating to security procedures at the Laboratory. Laboratory management was fully aware that Quinones and Zipoli were making such reports. The Inspector General investigated the issues raised by Quinones and Zipoli and issued an extensive classified report. The Laboratory was initially briefed on the report’s findings in July 2001. On or about September 2001, the Inspector General provided the Laboratory with a comprehensive explanation of the report, including the validation of complaints made by Quinones and Zipoli. Those validated safety and security concerns have a significant impact on DOE’s contract with the University of California to manage the Laboratory.

In early August 2001, Stan Howell, Laboratory Staff Relations Representative, had several discussions with Quinones about a rumored sickout by the SPOA on August 6, 2001. August 6^th is the anniversary of the bombing of Hiroshima and typically brings protests and demonstrations at the Laboratory. Quinones explained to Howell that August 6^th had been identified by the SPOA at the beginning of the year as a possible date for concerted labor action if the bargaining impasse was not resolved. Quinones and Howell discussed a variety of labor relations issues including the fact that some SPOs were frustrated with the Laboratory’s decision to cancel their days off and to require them to work on Hiroshima day. Quinones, however, advised Howell that the SPOA was not going forward with a sickout or any other job action on August 6, 2001.

On August 2, 2001, Howell called and left a message at Quinones’ home inquiring about the rumored sickout. Quinones responded to the call and left a message attempting to answer the questions and concerns expressed in Howell’s message. After receiving Quinones’ message, Howell called him and requested that he inform bargaining unit members that a sickout would be unlawful and advise against such action. James Cain, Laboratory Staff Relations Representative, also contacted Quinones and requested that he issue a letter to bargaining unit members advising that the SPOA was not initiating, encouraging or sanctioning a sickout.

On August 3, 2001, Quinones issued a letter to bargaining unit members advising that although August 6, 2001 had been identified months earlier as a date for possible concerted activity, since May 2001 the SPOA decided that no concerted activity would occur in the immediate future. Quinones further stated that despite the Union members’ frustration with Laboratory management, the SPOA had not initiated or organized any labor actions for the immediate future.

Following issuance of Quinones’ letter, Cain directed a letter to Quinones dated August 3, 2001, stating in part:

On August 3, 2001, the Laboratory issued a notice to all SPOs advising that participation in a sickout was unlawful and that individuals who participated in such activities could be subject to discipline.

In the meantime, Quinones and Zipoli reiterated during union board meetings and in direct discussions with bargaining unit members that the SPOA was not initiating, organizing or encouraging any concerned labor action. Quinones and Zipoli repeatedly stated that the SPOA was not supporting a sickout.

Approximately 50 SPOs, including Quinones and Zipoli, called in sick on August 6, 2001. A number of the SPOs who did not report to work were not SPOA members.

The Laboratory conducted an investigation of the alleged sickout. As part of the investigation, the Laboratory sought to identify those individuals who were SPOA members and those who were not. The Laboratory also asked questions about whether the SPOA, and Quinones in particular, encouraged a sickout. None of the SPOs interviewed implicated Quinones, Zipoli or the SPOA as initiating or encouraging a sickout on August 6, 2001.

On August 28, 2001, the Laboratory issued notices of intent to dismiss to Quinones and Zipoli. The Laboratory alleged that Quinones and Zipoli violated, among other things, the CBA’s no-strike clause by encouraging and participating in an illegal sickout on August 6, 2001. On August 30, 2001, Joseph Kruger, Manager of the Safeguards and Security Department, issued a memorandum to all protective force personnel stating that "Two officers will be subject to more serious corrective action for their role in leading and encouraging the ‘sickout’".

No other SPOs were disciplined for allegedly violating the no-strike provision of the CBA.. Nor were any other SPOs charged with violating Article 36 of the CBA for allegedly failing to minimize unwarranted absences. Quinones and Zipoli were the only SPOs charged with dishonesty. Finally, only Quinones and Zipoli were terminated for allegedly participating in a sickout. No other officer received more than a written warning for calling in sick on August 6, 2001. Those SPOs who produced medical documentation for their illnesses received no corrective action whatsoever, except for Zipoli. The Laboratory summarily rejected his medical documentation.

On October 9, 2001, Quinones and Zipoli appealed their terminations pursuant to the grievance and arbitration procedures in the expired CBA. Quinones and Zipoli alleged that the terminations were without "cause" and constituted disparate treatment. During the appeals process, Quinones and Zipoli asserted that the discipline was undertaken in response to their activities and status as union officers. Although the acts upon which the Laboratory allegedly terminated Quinones and Zipoli arose after the CBA expired, the Laboratory agreed to process the appeals pursuant to the CBA’s grievance and arbitration procedure. The procedure culminates in binding arbitration before a neutral arbitrator selected by the parties.

While the disciplinary appeals were proceeding to arbitration, Quinones and Zipoli appealed the Laboratory’s denial of unemployment insurance benefits. Following separate hearings before the Unemployment Insurance Appeals Board, Quinones and Zipoli were awarded unemployment insurance benefits in decisions rendered on December 27, 2001 and January 10, 2002. In each case, a different Administrative Law Judge found that the Laboratory presented no evidence that Quinones or Zipoli encouraged and participated in a union sickout.

The disciplinary appeals of Quinones and Zipoli were consolidated into a single arbitration hearing held on June 13, 14 and 26, and July 9, 2002. The arbitrator issued his Opinion and Award on December 13, 2002, and held that the Laboratory had reasonable cause to discipline Quinones and Zipoli under the CBA. Although the Laboratory did not have any direct evidence that Quinones or Zipoli instructed or encouraged any SPOA member to engage in a sickout on August 6, 2001, the arbitrator concluded that Quinones and Zipoli violated the CBA’s no-strike clause by calling in sick on August 6, 2001. The arbitrator sustained the termination of Quinones, but reduced Zipoli’s termination to a 30-day suspension. In the Matter of the Controversy between the Security Police Officers Association and Lawrence Livermore National Laboratory (December 13, 2002).

II.

THE LABORATORY UNLAWFULLY DISCRIMINATED AND RETALIATED AGAINST QUINONES AND ZIPOLI BASED ON THEIR STATUS AND ACTIVITIES AND UNION OFFICERS

To state a prima facie case of discrimination or retaliation under HEERA, the charging party must show that (1) he or she engaged in protected conduct known to the employer; (2) the employer took adverse action against the charging party; and (3) the adverse action was unlawfully motivated. Trustees of California State University v. Public Employment Relations Board, 6 Cal.App.4^th 1107, 1123 (1992); Novato Unified School District, 6 PERC ¶ 13114 (1982).

Unlawful motive is the specific nexus required in the establishment of a prima facie case of discrimination or retaliation. Trustees of California State University, supra, 6 Cal.App.4^th at 1124; Novato Unified School District, supra, 6 PERC ¶ 13114, p. 443. Direct proof of unlawful motive is rarely possible, but such intent can be established by circumstantial evidence. Timing of the employer’s conduct and disparate discipline may support an inference of unlawful intent. Trustees of California State University, supra, 6 Cal.App.4^th at 1124; Novato Unified School District, supra, 6 PERC ¶ 13114, p. 443. For example, the PERB found unlawful intent when a campus police officer who was also the union president suffered a transfer and demotion because of misconduct for which other officers were not disciplined. San Joaquin Delta Community College District, 7 PERC ¶ 14011 (1982), p. 32. In another case, a union president and vocal union advocate was singled-out for discipline while other bargaining unit employees who engaged in the same conduct were not disciplined. California State University, 14 PERC ¶ 21090 (1990).

In this instance, all elements for a prima facie case of discrimination or retaliation are present. Quinones and Zipoli are high profile union officials who engaged in protected union activity known to the Laboratory, most notably their complaints to the DOE Inspector General. The Laboratory selectively disciplined Quinones and Zipoli by terminating their employment a few weeks after the Inspector General fully briefed the Laboratory on the validated complaints and concerns raised by Quinones and Zipoli. The timing and disparate character of the disciplinary action taken against Quinones and Zipoli establishes the Laboratory’s unlawful intent to discriminate and retaliate against them because of their status and activities as union officers.

When the employer’s action is "inherently destructive" of employee rights, the PERB has stated that unlawful intent may be presumed. Coast Community College District, 6 PERC ¶ 13237 (1982), p. 921; see N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963)(stating that unlawful intent of antiunion discrimination may be "founded [on] the inherently discriminatory or destructive nature" of employer conduct). According to the United States Supreme Court, "some conduct carries with it ‘unavoidable consequences which the employer not only foresaw but which he [or she] must have intended’ and thus bears ‘its own indica of intent.’" N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 1797-1798, 18 L.Ed.2d 1027 (1967). The United States Supreme Court has held that disciplining union officials more severely than other employees for participating in an unlawful work stoppage is "inherently destructive" of protected rights because it discriminates solely on the basis of union status. Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983).

To avoid a finding of discrimination or retaliation, the Laboratory must prove that its actions against Quinones and Zipoli would have been the same despite their status and activities as union officials. In other words, "but for" their status as the SPOA President and Vice-President would the Laboratory have terminated their employment. McPherson v. Public Employment Relations Board, 189 Cal.App.3d 293, 304 (1987). When the employer’s conduct is "inherently destructive" of employee rights, however, the PERB has stated that such conduct "will be excused only on proof that it was occasioned by circumstances beyond the employer’s control[,] and that no alternative course of action was available." Carlsbad Unified School District, 3 PERC § 10031 (1979), p. 108.

The Laboratory’s failure to prove that the terminations of Quinones and Zipoli were the result of circumstances beyond its control and that no alternative course of action was available, establishes the Laboratory’s actions as unlawful discrimination and retaliation in violation of HEERA. To the extent the Arbitrator’s Opinion and Award finds otherwise, it is repugnant to the purpose of HEERA.

III.

THE ARBITRATOR’S OPINION AND AWARD

IS REPUGNANT TO HEERA

The Arbitrator determined that "cause" existed for discipline based on an erroneous finding that Article 33 of the CBA imposed a contractual obligation on the Union "not to engage in and/or condone sickouts or other work interruptions." [Arb. Dec., p. 53, lns. 21-22] The Arbitrator, however, completely missed the fact that the CBA expired on September 30, 2000 and that Article 33 was not in effect on August 6, 2001. This monumental error formed the primary basis for the Arbitrator’s finding that "cause" existed for discipline. Indeed, the Arbitrator concluded:

The fact that the CBA expired on September 30, 2002 and no successor agreement was in effect on the date of the alleged sickout is persuasive evidence that the CBA had terminated and that no contract was in effect on August 6, 2001. As for Article 33 specifically, the parties expressly agreed that the no-strike provision would not survive expiration of the CBA absent a written extension of the Agreement. [Arb. Dec., p. 2, ln. 22] The pertinent language provides that "[d]uring the life of this Agreement or any written extensions thereof" there shall be no sickouts. These facts compel a finding that an alleged violation of Article 33 is not cause for discipline.

Although most mandatory subjects of bargaining contained in a CBA survive expiration of the agreement by virtue of the prohibition on unilateral changes (California Department of Forestry and Fire Prevention, 17 PERC ¶ 24112, pp. 330, 332 (1993)), some terms and conditions of employment do not survive expiration of an agreement. California Department of Youth Authority, 17 PERC ¶ 24019 (1992)(citing Litton Financial Printing Division v. N.L.R.B., 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991)). "No-strike" provisions generally are excluded from the unilateral change doctrine in recognition of the right to engage in concerted labor activities. See Litton Financial Printing Division, supra, 501 U.S. at 199, 111 S.Ct. at 2222. Thus, absent persuasive evidence that the parties agreed that Article 33 would survive expiration of the CBA, the no-strike provision did not continue automatically by operation of law following termination of the agreement on September 30, 2000.

No-strike clauses may survive expiration of a labor agreement if the provision was specifically negotiated as a quid pro quo for the right to arbitrate disputes following expiration of the agreement. Southwestern Steel & Supply, Inc. v. N.L.R.B., 806 F.2d 111, 1114 (D.C. Cir. 1986). In this instance, however, there is no evidence that the CBA’s no-strike provision was negotiated in exchange for the right to arbitrate disputes. See Modesto City Schools, 7 PERC ¶ 14090 (1983), p. 351 (holding that a no-strike provision and an arbitration clause need not be negotiated as quid pro quo for the other). Nor is there any evidence that the parties agreed that the no-strike provision would continue following expiration of the CBA if the parties continued to arbitrate disputes arising under the agreement. A waiver of the right to strike during the life of a labor agreement is not a clear and unmistakable waiver of the right to strike beyond the contract term. Southwestern Steel & Supply, Inc., supra, 806 F.2d at 1114.

The parties expressed their clear mutual intent that Article 33 not continue beyond the life of the CBA absent a written extension of the agreement. Despite the requirement for a written agreement continuing the no-strike clause, it is possible that the parties entered into an implied-in-fact agreement that the no-strike clause would continue by virtue of their conduct. See Luden’s Inc. v. Local Union No. 6, Bakery, Confectionery and Tobacco Workers, 28 F.3d 347 (3^rd Cir. 1994). To establish such an implied-in-fact agreement, however, the Laboratory was required to prove that the parties behaved in a manner consistent with an intent to continue the no-strike clause. Id. at 356; see California State University, 21 PERC ¶ 28106 (1997) affirmed, 22 PERC ¶ 29011 (1997)(describing required elements to establish a past practice). In this instance, the Arbitrator stated that the parties were still honoring Article 33 of the Agreement, but provided absolutely no evidentiary support for his conclusion. [Arb. Dec., p. 50, ln. 14] That failure is understandable because the evidence actually demonstrates that the parties did not act in a manner consistent with an intent to continue the no-strike clause following expiration of the CBA.

The Arbitrator found that the Union engaged in an earlier "sickout" in April 2001 and that the Laboratory did not discipline any employee for allegedly violating Article 33 of the CBA. [Arb. Dec., p. 5, lns. 1-7; pp. 37-38] Based on this finding, neither the Union nor the Laboratory conducted themselves in a manner consistent with an intent or understanding that Article 33 would be honored following expiration of the CBA. Quinones repeatedly testified during the arbitration hearing that Article 33 was not in effect following expiration of the bargaining agreement and the Laboratory presented no evidence to the contrary.

The Arbitrator’s decision is palpably wrong and clearly repugnant to HEERA because Article 33 of the CBA, by its own terms, did not continue beyond the life of the Agreement, there was no written extension of the Agreement and the no-strike provision did not survive expiration of the CBA by operation of law. The parties also did not create an implied-in-fact agreement to continue and honor Article 33 after the CBA expired. If allowed to stand, the Arbitrator’s decision does harm to the well-established principles of contract interpretation and collective bargaining law.

The Arbitrator asserted that "it is so clear Union officers can be disciplined more harshly than rank and file employees for engaging in similar acts they know violate the Agreement." [Arb. Dec., p. 50, lns. 20-22] Although it is generally recognized that union officials may be subject to more severe discipline for actually instigating or taking a leadership role in unlawful union activities, an employer may not impose more severe discipline on union officials solely for failing to honor a no-strike provision. Metropolitan Edison Co., supra, 460 U.S. 693, 103 S.Ct. 1467, 75 L.Ed.2d 387. By erroneously concluding that Quinones and Zipoli could be disciplined more harshly solely for engaging in conduct "they know violate[s] the Agreement" [Arb. Dec., p. 50, lns. 20-22], the Arbitrator failed to recognize or give significance to the inherently destructive character of the Laboratory’s disparate treatment of union officers.

As previously noted, the United States Supreme Court has held that disciplining union officials more severely than other employees for participating in an unlawful work stoppage is "inherently destructive" of protected rights because it discriminates solely on the basis of union status. Metropolitan Edison Co., supra, 460 U.S. 693, 103 S.Ct. 1467, 75 L.Ed.2d 387. Citing the N.L.R.B, the Supreme Court noted:

In Metropolitan Edison Co., union members participated in four work stoppages despite the existence of a no-strike clause in an existing collective bargaining agreement. On each occasion, the employer disciplined all of its employees who participated in the strikes for violating the bargaining agreement, but imposed more severe penalties on the local union officials who participated in the strikes. The employer claimed that the union officials had an affirmative duty to uphold the bargaining agreement and to make "‘every bona fide effort to prevent the unlawful work stoppage.’" The union filed an unfair labor practice charge and the National Labor Relations Board ("NLRB") sustained a complaint against the company. Relying on its own precedent, the NLRB determined that the selective discipline of union officials violated Section 8(a)(1) (interference) and Section 8(a)(3) (discrimination) of the National Labor Relations Act ("NLRA"). The Court of Appeal affirmed the NLRB’s determination and the Supreme Court granted review.

The Supreme Court held that an employer may not impose greater discipline upon a union official for participating in an illegal work stoppage unless the collective bargaining agreement specifies that the officials have an affirmative duty to prevent illegal strikes. The Supreme Court acknowledged that union officials, as leaders of the rank and file, have a legal obligation to support the terms of the collective bargaining agreement and to set a responsible example for their members. The employer, however, may not unilaterally define the actions that a union official is required to take to enforce a no-strike clause and then discipline him for failing to comply. If the agreement does not impose a specific duty on union officials distinct from the union membership as a whole, any disparate treatment of union officials is unlawful.

In this instance, even assuming, arguendo, that Article 33 was in effect on August 6, 2001, the provision did not impose any greater duty on union officials to prevent a sickout than applied to the entire union membership. In other words, Article 33 does not identify union officers as being under a distinctly higher duty to prevent a sickout beyond the general obligation imposed on regular union members. The Laboratory, however, sought to impose such a duty upon the union officers, and Quinones in particular, and then disciplined him for not complying with its directive to him. Indeed, Cain’s letter of August 3, 2001 specifically states that Laboratory officials directed him to take certain action to prevent a sickout and that he failed to comply. The notice of termination confirms that this directive was given and Laboratory officials subsequently testified that Quinones did not do enough in their opinion to prevent the sickout. According to the Supreme Court, however, the Laboratory could not unilaterally impose such a duty on Quinones or Zipoli, and then single them out for harsher discipline for failing to follow their directive.

The fact that only Quinones and Zipoli were disciplined for their alleged participation in the sickout establishes the Laboratory’s unlawful intent and antiunion animus. Neither Quinones nor Zipoli had a greater contractual duty to prevent a sick out than any other member of the Union. Nor does a union officer’s mere participation in a sickout establish that the union officer in fact took a leadership role in the job action as an agent of the union. Compton Community College District, 13 PERC ¶ 20076 (1989), p. 262. Yet, only the Union president and vice-president were terminated for allegedly violating Article 33 of the MOU. As the United States Supreme Court stated, such disparate treatment of union officials is "inherently destructive" of protected rights because it discriminates solely on the basis of union status. Metropolitan Edison Co., supra, 460 U.S. at 702-703, 103 S.Ct. at 1474; Taft City School Dist., 25 PERC ¶ 32066 (2001)(holding that inference of unlawful discrimination established by disparate treatment of union official).

Speculation about national security concerns is not a legitimate explanation for selectively disciplining Quinones and Zipoli. Neither union officer had a greater duty or obligation to protect national security than any other union-represented employee. If termination is the appropriate penalty for allegedly disregarding national security, every employee who participated in the alleged sickout should have been terminated, or at least subject to disciplinary action. The Laboratory’s actions demonstrate that its real motive in terminating Quinones and Zipoli was to discriminate and retaliate against them based on their status and activities as union officers.

The arbitrator’s decision is wrong and clearly repugnant to HEERA because it fails to find that the selectively disciplining the union president and vice-president is contrary to the purpose behind all collective bargaining laws. The arbitrator’s decision improperly condones the Laboratory’s unilateral imposition of a higher contractual duty on Quinones and Zipoli and discipline for failing to meet the Laboratory’s expectations. HEERA not only prohibits the unilateral modification and interpretation of contractual agreements (Public Employment Relations Board v. Modesto City Schools Dist., 136 Cal.App.3d 881, 900 (1982); see Glendale City Employees Assn. v. City of Glendale, 15 Cal.3d 328 (1975)(holding that employer may not unilaterally decide meaning of bargaining agreement’s terms)), it prohibits discrimination and retaliation against union officers. Gov. Code § 3571. The arbitrator’s decision sanctions both unlawful acts and cannot be allowed to stand.

IV.

The SPOA requests that the PERB issue an unfair practice complaint against the Laboratory alleging unlawful discrimination, retaliation and interference in violation of HEERA based on the above. In so doing, the SPOA requests that the PERB determine that the Opinion and Award issued by Arbitrator Alexander Cohn In the Matter of the Controversy between the Security Police Officers Association and Lawrence Livermore National Laboratory (December 13, 2002) is repugnant to HEERA.

The SPOA further requests that the PERB find that the Laboratory unlawfully discriminated, retaliated and interfered with the rights of Quinones and Zipoli by terminating their employment on September 28, 2001. The SPOA requests that the PERB order the Laboratory to reinstate Quinones and Zipoli and to their former positions and to make them whole for any and all losses suffered as a result of the Laboratory’s unlawful action.

The SPOA requests that the PERB order the Laboratory to cease and desist from unlawfully discriminating, retaliating and interfering with the rights of SPOA-represented employees under HEERA. The SPOA also requests that the Laboratory be directed to post notice of the entire order and remedy for not less than 30 days in all places where employee notices are usually posted at the Laboratory.

Finally, the SPOA requests that the PERB order the Laboratory to make whole the SPOA for all attorney’s fees, costs and other expenses associated with this action.