Filed 9/30/19
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION FIVE


 TEAMSTERS LOCAL 2010,
            Plaintiff and Respondent,
                                                     A155188
 v.
 REGENTS OF THE UNIVERSITY OF                        (Alameda County
 CALIFORNIA,                                         Super. Ct. No. RG17886561)
            Defendant and Appellant.


        Defendant Regents of the University of California (Regents) appeals from an order
denying its special motion to strike under Code of Civil Procedure section 425.16 (the
anti-SLAPP statute). 1 The parties agreed that plaintiff Teamsters Local 2010 (Teamsters)
filed an action that arose out of protected activity. Regents argues the trial court erred in
denying its anti-SLAPP motion after concluding Teamsters had demonstrated a
probability of prevailing on its claim. We affirm.
                                        I. BACKGROUND
        A. Facts
        Teamsters is a labor union that represents skilled crafts employees at two of
Regent’s campuses: University of California Los Angeles (UCLA) and University of



        1
         A strategic lawsuit against public participation, or SLAPP suit, is one which
“ ‘seeks to chill or punish a party’s exercise of constitutional rights to free speech and to
petition the government for redress of grievances.’ ” (Contreras v. Dowling (2016) 5
Cal.App.5th 394, 404.) “When a special motion to strike is filed, ‘the trial court
evaluates the merits of the plaintiff’s claim using a summary-judgment-like procedure at
an early stage of the litigation.’ ” (Ibid.)

                                              1
California San Diego (UCSD). In 2017, it was campaigning to unionize the skilled crafts
employees of University of California Davis (UCD).
       During its campaign, Teamsters distributed a flyer making a number of statements
about the impact that unionizing had upon the skilled crafts employees at UCLA and
UCSD. In response, in May 2017, Regents distributed a flier to the skilled crafts
employees at UCD entitled “HR Bulletin.” The flier was issued through the Employee
and Labor Relations Department at UCD, and stated:
       “Dear Colleague,
       “Currently there is an organizing campaign in progress for the Skilled Crafts Unit
(K3) on the UC Davis campus. As previously stated, the University is neutral on the
issue of unionization and supports the right of each employee to make an independent
decision on whether or not to be represented by a union. The University believes that its
role is to ensure that employees have the information they need to make an informed,
voluntary choice and understand the process when faced with this important decision.
       “The Skilled Crafts groups at both UCLA and UCSD had been in extensive
contract negotiations, which had the effect of freezing salaries for several years. As a
result, the initial increase provided by the new contracts had to account for multiple
missed increases. This is an important distinction from the current status at UC Davis,
where employees continue to receive annual merit increases based on performance.
       “UC Davis is committed to paying its Skilled Crafts employees market-
competitive wages. Additionally, UC Davis Skilled Crafts employees enjoy an average
annual cost of $384 for comprehensive health benefits as compared to the average
American workers who will pay more than $5,200 annually for less generous health
benefits.
       “It is also important to note that UC Davis has a complaint process located in
PPSM-70 (outlined here) that acts as a grievance procedure for non-represented
employees. At any time, you may file a complaint based on a specific
management action.



                                             2
       “Thank you for all that you do for UC Davis. We appreciate the contributions you
make every day to honor our commitment to sustainability, serve students and enable our
University to continue its world-class research.”
       B. Lawsuit
       Teamsters filed an unverified civil complaint against Regents on December 19,
2017, alleging it had violated Government Code section 16645.6. That statute prohibits a
public employer from using state funds to “assist, promote, or deter union organizing.” A
copy of the May 17, 2017 bulletin was attached as Exhibit 1 to the complaint.
       C. Anti-SLAPP Motion
       Regents filed an anti-SLAPP motion on February 20, 2018, arguing (1) the
complaint arose from protected conduct in the form of a “ ‘written or oral statement or
writing made in a place open to the public or a public forum in connection with an issue
of public interest’ ” as well as “ ‘any other conduct in furtherance of the exercise of the
. . . constitutional right of free speech in connection with a public issue or an issue of
public importance;’ ” and (2) Teamsters could not demonstrate a probability of prevailing
on its claim because the action was preempted by the exclusive jurisdiction of the Public
Employment Relations’ Board (PERB) and in any event, nothing in Government Code
section 11645.6 prohibited Regents from engaging in noncoercive speech. (Code of Civ.
Proc., 425.16, subds. (b)(1), (e)(3), (e)(4).) Regents submitted a declaration under
penalty of perjury by Stephen Green, the Executive Director of UCD’s Employee and
Labor Relations Department, explaining the reason for circulating the bulletin:
“Department personnel, myself included, believed that it was necessary to provide
UCD’s skilled crafts employees with additional factual information so they could make
more informed decisions about unionization.” A copy of the bulletin forming the basis of
Teamsters’s complaint was attached as Exhibit D to the declaration.
       The trial court denied the motion. It ruled the claim arose from activity protected
under the statute, but Teamsters had a reasonable probability of prevailing on its claim.
The court noted in its written order that Government Code section 16645.6 prohibited
public employers from using state funds to “influence the decision” about whether to


                                               3
support or join a union, regardless of whether the means used to do so were coercive.
The court concluded its jurisdiction was not preempted by PERB, which had exclusive
jurisdiction over unfair labor practices by Regents, because the bulletin was not coercive
and was not alleged to be an unfair labor practice. The court noted that with respect to
claims filed after January 1, 2018, the law had changed and PERB would have exclusive
jurisdiction to determine the dispute. (See Govt. Code, §§ 3550, 3551, subd. (a), added
by Stats. 2017, ch. 567, §1.)
                                      II. DISCUSSION
       A. Anti-SLAPP Statute
       We review de novo an order granting a special motion to strike under Code of
Civil Procedure section 425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326.) In
doing so, we independently determine each of the two prongs of anti-SLAPP analysis: (1)
whether the defendant has shown that a cause of action arises out of an act done in
furtherance of the defendant’s exercise of a right to petition or free speech under the
United States or California Constitution; and, if so, (2) whether the plaintiff has
demonstrated a probability of prevailing on the claim. (Sylmar Air Conditioning v.
Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056; Governor Gray
Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) The
defendant bears the burden of proof on the first prong; the plaintiff on the second.
(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 15, 19; Navellier v. Sletten (2003) 106
Cal.App.4th 763, 768.)
       The parties agree the current lawsuit arises out of protected activity, and we are
concerned here with only the second prong of the analysis. In conducting our review, we
do not weigh evidence or resolve conflicting factual claims. (Baral v. Schnitt (2016) 1
Cal.5th 376, 384–385.) Instead, we conduct a limited inquiry—akin to review of a
summary judgment—into “whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a favorable judgment.” (Id. at
p. 377.) We accept the plaintiff’s evidence as true and evaluate the defendant’s showing
only to determine if it defeats the plaintiff’s claim as a matter of law. (Ibid.)


                                               4
           B. Violation of Government Code section 16645.6
           Under Government Code section 16645.6, “(a) A public employer receiving state
funds shall not use any of those funds to assist, promote, or deter union organizing.
[¶] (b) Any public official who knowingly authorizes the use of state funds in violation
of subdivision (a) shall be liable to the state for the amount of those funds.” Government
Code section 16645 provides, “ ‘Assist, promote, or deter union organizing’ means any
attempt by an employer to influence the decision of its employees in this state or those of
its subcontractors regarding either of the following: [¶] (1) Whether to support or
oppose a labor organization that represents or seeks to represent those employees. [¶]
(2) Whether to become a member of any labor organization.” Government Code section
16645.8 allows a civil action for violation of this provision if the state Attorney General
declines to bring a civil action within 60 days, with penalties and damages to be paid to
the state treasury and a successful plaintiff being entitled to an award of attorney fees and
costs. 2
           Government Code section 16645.6 was enacted in 2000 as part of Assembly Bill
1889. In enacting Assembly Bill 1889, the Legislature stated, “It is the policy of the state
not to interfere with an employee’s choice about whether to join or to be represented by a
labor union. For this reason, the state should not subsidize efforts by an employer to
assist, promote, or deter union organizing. It is the intent of the Legislature in enacting
this act to prohibit an employer from using state funds and facilities for the purpose of
influencing employees to support or oppose unionization and to prohibit an employer
from seeking to influence employees to support or oppose unionization while those
employees are performing work on a state contract.” (Assem. Bill No. 1889 (1999-2000
Reg. Sess.) § 1.)
           The bulletin sent out by Regents to skilled crafts employees fell within these
provisions. At least, a reasonable trier of fact could so find. Regents complains there



           2
         The complaint filed by Teamsters alleges it asked the Attorney General to bring
suit and the Attorney General failed to do so within 60 days.

                                                 5
was no evidence presented to show the bulletin was intended to or did in fact “deter”
union organizing within the meaning of Government Code section 16645.6, but
Government Code section 16645 specifically defines “ ‘[a]ssist, promote, or deter union
organizing’ ” as used in that section to mean “any attempt by an employer to influence
the decision of its employees. . . .” (Italics added.) Although the bulletin was not
coercive, in that Regents professed neutrality on the issue of unionization, couched the
communication in terms of providing employees with facts, and did not threaten
employees with reprisals if they unionized, a trier of fact could reasonably find the
bulletin was an attempt to “influence” the employees who were on the receiving end.
Stephen Green made this very point in his declaration, explaining that he and others at
UCD decided to provide employees with additional facts so they could make a more
informed decision about unionization. (See Black’s Law Dict. (10th ed. 2014) p. 898
[defining “influence” as, among other things, “one or more inducements intended to alter,
sway, or affect the will of another, but falling short of coercion”].)3
       Regents cites Government Code section 3571.3, which provides, “The expression
of any views, arguments, or opinions, 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 provision of this chapter, unless such expression contains a threat of
reprisal, force, or promise of benefit; provided, however, that the employer shall not
express a preference for one employee organization over another employee
organization.” But while noncoercive communications falling under Government Code
section 3571.3 will not qualify as unfair labor practices, such communications may still
violate Government Code section 16645.6.




       3
        Regents makes no argument that it was not a pubic employer receiving state
funds. The University of California, of which UCD, UCLA and UCSD are a part and
which is governed by Regents, is a public trust established pursuant to the California
Constitution. (Cal. Const., art. IX, § 9.)


                                              6
       Regents argues Teamsters failed to make the required evidentiary showing of a
probability of prevailing in its opposition to the anti-SLAPP motion, and that the court
should not consider Green’s declaration to fill in the gaps. We disagree. “We see no
reason why [Green]’s declaration could not be considered in assessing [Teamsters]’s
probability of prevailing on the claim. In summary judgment proceedings, gaps in a
party’s evidentiary showing may certainly be filled by the opposing party’s evidence.
[Citation.] This rule is based on the statutory command that the court consider “ ‘all the
papers’ ” in making its ruling. [Citations.] [Code of Civil Procedure s]ection 425.16
similarly directs the court to consider both the ‘supporting and opposing affidavits’ when
ruling on a motion to strike.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.) 4
       Moreover, even if we do not consider Green’s declaration or any of Regents’s
evidence, the bulletin on its face could be construed as an attempt to influence the
employees to whom it is directed. The stated purpose of the bulletin is “to ensure
employees have the information they need. . . .” The evidence thus supported the trial
court’s finding that Teamsters had a reasonable probability of prevailing on its claim that
Regents violated Government Code section 16645.6.
       C. Preemption
       Regents argues that assuming the bulletin violated Government Code section
16645.6, Teamsters had no probability of prevailing on its claim because the superior
court was not the proper forum. It argues that PERB had exclusive jurisdiction over the
claim which preempts this lawsuit. Regents acknowledges there is no statutory provision
granting PERB exclusive jurisdiction, but argues that Teamsters’s claim is substantively

       4
         We note that in Salma, the court also considered plaintiff’s verified pleading as
evidence showing a reasonable probability of prevailing. (Salma, supra 161 Cal.App.4th
at pp. 1289–1290.) This aspect of the court’s decision has been criticized in other cases.
(E.g., Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109, fn. 10;
Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450,
474, fn. 8.) We need not consider the propriety of this part of the Salma court’s ruling,
because the conclusion that it is inappropriate to treat verified pleadings as the equivalent
of evidence on an anti-SLAPP motion does not mean a court cannot look to both parties’
evidence to fill in the gaps on one side.

                                             7
one for violating a statute over which PERB has such jurisdiction. Some context is in
order.
         1. HEERA
         “ ‘Over the past 20 years, the California Legislature has enacted a series of
legislative measures granting public employees, at both the state and local level, a variety
of organizational and negotiating rights somewhat analogous to the rights long afforded
most employees in the private sector by the federal labor relation laws of the 1930’s.
[Citation.] [¶] In 1979, the Legislature added the Higher Education Employer-Employee
Relations Act (HEERA) which is codified at section 3560 et seq. of the Government
Code. The Legislature declared that the act was based on the ‘fundamental interest in the
development of harmonious and cooperative labor relations between public institutions of
higher education and their employees.’ [Citations.] [¶] In administering HEERA, PERB
has certain rights, powers, duties and responsibilities, including, but not limited to,
investigating unfair practice charges, holding hearings, subpoenaing witnesses,
administering oaths, taking testimony or deposition of any person, issuing subpoenas
duces tecum, and bringing an action in a court of competent jurisdiction to enforce any of
its orders, decisions or rulings. [Citation.] [¶] The initial determination as to whether
the charges of unfair practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of HEERA, is a matter within the exclusive jurisdiction of PERB.
(§ 3563.2.)” (Anderson v. California Faculty Assn. (1994) 25 Cal.App.4th 207, 211–212
(Anderson), italics added.)
         Government Code section 3571 defines unlawful (unfair) practices by an employer
under HEERA. As relevant here, that section provides, “It shall be unlawful for the
higher education employer 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. . . . [¶] . . . [¶] (d) Dominate or interfere
with the formation or administration of any employee organization.”



                                               8
       As previously noted, Government Code section 3571.3, which is also a part of
HEERA, provides, “The expression of any views, arguments, or opinions, 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 provision of this chapter,
unless such expression contains a threat of reprisal, force, or promise of benefit;
provided, however, that the employer shall not express a preference for one employee
organization over another employee organization.”
       In deciding whether something is an unfair labor practice, and whether PERB
consequently has exclusive jurisdiction to hear a matter (Govt. Code, § 3563.2), we
consider the underlying conduct on which the suit is based rather than a superficial
reading of the pleadings. (City and County of San Francisco v. International Union of
Operating Engineers, Local 39 (2007) 151 Cal.App.4th 938, 945 (Local 39); Fresno
Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 269
[“Sophistication of pleading actions is not the key to jurisdiction. Preemption exists ‘to
shield the system (of regulation of labor relations) from conflicting regulation of conduct.
It is the conduct being regulated, not the formal description of governing legal standards,
that is the proper focus of concern’ ”].) In Local 39, this Court determined that it did not
matter whether the plaintiff city attempted to characterize its claim against a union as the
violation of mandatory charter provisions rather than an unfair practices charge over
which PERB had exclusive jurisdiction: “The City may not, through artful pleading,
evade PERB’s exclusive jurisdiction.” (Local 39, supra, at p. 945.)
       2. NRLA Cases and Analogy to Preemption by PERB
       Cases determining the scope of PERB’s jurisdiction over unfair labor practices
and considering claims of preemption sometimes look to cases discussing principles of
implied preemption related to the federal National Labor Relations Act (NLRA; 29
U.S.C. § 151 et. seq.). (City of San Jose v. Operating Engineers Local Union No. 3
(2010) 49 Cal.4th 597, 604 (City of San Jose); see also El Rancho Unified School Dist. v.
National Education Assn. (1983) 33 Cal.3d 946, 953 (El Rancho); San Diego Teachers
Assn v. Superior Court (1979) 24 Cal.3d 1, 12.) That law, although inapplicable directly


                                              9
to state employers (State v. Brotherhood of R.R. Trainmen (1951) 37 Cal.2d 412, 418),
forms the template for many of the statutes in HEERA.
       Accordingly, the same rule of jurisdiction applies to PERB with respect to
HEERA that the United States Supreme Court adopted with respect to the National Labor
Relations Board (NLRB) in San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S.
236, 244–245 (Garmon). (City of San Jose at p. 604; Anderson, supra, 25 Cal.App.4th at
p. 214.) Applying the so-called rule of “Garmon preemption,” an administrative agency
such as PERB “ ‘is held to have exclusive jurisdiction over activities arguably protected
or prohibited by’ ” the governing labor law statutes. (City of San Jose, at p. 604.)5
“[T]he aim of this rule is to avoid conflict ‘in its broadest sense’ in the regulation of
labor-management relations.” (El Rancho, supra, 33 Cal.3d at p. 953, citing Garmon at
p. 243.)




       5
         A second preemption doctrine in NRLB cases, articulated in Intl. Ass’n of
Machinists & Aero. Workers v. Wisconsin Emp. Rel. Comm’n (1976) 427 U.S. 132, held
that state laws and state causes of action are preempted when they concern conduct that
Congress intended to leave unregulated. (Id. at p. 140.) This doctrine has been applied in
statutes involving a private employer’s use of state funds to assist, promote or deter
unionization and has been held to bar such provisions (Chamber of Commerce of United
States of America v. Brown (2008) 554 U.S. 60 (Brown) ), but that case is inapplicable
here because the relationship between private employers and their employees is governed
by the NRLA and the court found Congress had expressly and implicitly indicated its
intent to shield noncoercive employer speech about unionization from being regulated.
(Id. at pp. 68–69.)
        Regents has not argued that a Machinists type of preemption applies by analogy to
the question of whether this claim regarding Government Code section 16645.6 should be
heard by PERB. Nor could it do so successfully, when the California legislature, unlike
Congress in the Machinists and Brown cases, did not clearly indicate its intent to leave
the area of expenditure of government funds unregulated. In fact, it indicated the
opposite in the statement of legislative intent accompanying Assembly Bill 1889, of
which Government Code section 16645.6 is a part: “It is the policy of the state not to
interfere with an employee’s choice about whether to join or to be represented by a labor
union. For this reason, the state should not subsidize efforts by an employer to assist,
promote, or deter union organizing.”

                                              10
       3. Analysis
       Teamsters’s complaint against Regents is based on Government Code section
16645.6, prohibiting Regents from spending public money on activities that “assist,
promote, or deter union organizing.” (Govt. Code, § 16645.6.) The Legislature has
expressly provided that a civil action may be filed when a violation of that statute is
alleged: “(a) A civil action for a violation of this chapter may be brought by the Attorney
General, or by any state taxpayer, on behalf of the people of the State of California, for
injunctive relief, damages, civil penalties, and other appropriate equitable relief. All
damages and civil penalties collected pursuant to this chapter shall be paid to the State
Treasury.” If the Legislature had intended PERB to have exclusive jurisdiction over
claims under Government Code section 16645.6, it would not have provided for this
remedy.
       Regents’s argues that Teamsters’s claim is subject to PERB’s exclusive
jurisdiction because it effectively alleged an unfair labor practice over which PERB has
exclusive jurisdiction under principles of Garmon-type preemption. This ignores that by
enacting Government Code section 16645.8, the California Legislature has expressly
indicated that civil actions are not barred by PERB’s jurisdiction over unfair practices. In
any event, we disagree that Garmon-type preemption applies.
       While a violation of Government Code section 16645.6 may in some cases
prohibit conduct that is also an unfair labor practice, it does not necessarily do so.
Government Code section 16645.6 targets a public employer’s use of state funds to
influence employees as to whether to support or oppose a labor union or whether to
become a member of a union; use of private funds for this purpose would not be a
violation. It is the spending of state funds for this purpose that is prohibited.
Government Code section 3571, subdivision (a) makes it an unfair practice, whatever the
source of funding, for a higher education employee to “interfere with . . . employees
because of their exercise of rights guaranteed by this chapter.” Subdivision (d) of that
section provides that it is unlawful for a higher education employee to “[d]ominate or
interfere with the formation or administration of any employee organization. . . .” An


                                              11
attempt to influence employees on the issue of whether to support or join a union by
providing information that is neutral and accurate may be a violation of Government
Code section 16645.6 without “interfer[ing]” with employees or “dominat[ing]” or
“interfer[ing]” with the formation of a union. (Govt. Code, § 3571, subds. (a) & (d).) A
violation of Government Code section 16645.6 is not necessarily an unfair or unlawful
practice under Government Code section 3571. Just as importantly, it is not alleged to be
an unfair practice in this case.
        Regents argues that PERB had exclusive jurisdiction because a noncoercive
communication on the subject of unionization is arguable protected conduct under
Government Code section 3571.3, which is a part of HEERA and exempts certain kinds
of noncoercive communications from the category of unfair labor practices. That section
does not grant any affirmative rights; it merely provides that noncoercive
communications will not be the basis for an unfair labor charge. But no unfair labor
charge is alleged in this case. PERB does not have exclusive jurisdiction over the claim.
       D. First Amendment
       Although Regents has argued that employers (including government employers)
have a First Amendment right to communicate with their employees regarding the subject
of unionization (see Nadel v. Regents of University of California (1994) 28 Cal.App.4th
1251, 1262), they do not argue that Government Code section 16645.6 is unconstitutional
either on its face or as applied. We note that Government Code section 16645.6 does not
directly prohibit public employers from engaging in any type of speech, but provides
instead that state funds shall not be used to influence the decision of its employees as to
whether to support or oppose a labor union or join a labor union.
       E. Senate Bill 285
       Effective January 1, 2018, the Legislature passed Senate Bill 285, which provides,
“A public employer shall not deter or discourage public employees. . . from becoming or
remaining members of an employee organization. . .” and grants PERB jurisdiction over
violations of this statute. (Govt. Code, §§ 3550, 3551.) Neither party argues that these
provisions, which were enacted after the current lawsuit was filed, governs the claim in


                                             12
this case. (Civil Code, § 3; Cabral v. Martins (2009) 177 Cal.App.4th 471, 484 [statutes
not retroactive unless a clear intent to make them retroactive clearly appears on the face
of the statute, the legislative history or the circumstances of the enactment].) We do not
decide whether a claim under Government Code section 16645.6 that arose after January
1, 2018 would be subject to PERB’s exclusive jurisdiction.
                                   III. DISPOSITION
       The judgment is affirmed. Teamsters shall recover its costs on appeal.




                                            13
                                               NEEDHAM, J.




We concur.




JONES, P. J.




SIMONS, J.




Teamsters Local 2010 v. Regents of the University of California / A155188

                                          14
A155188 / Teamsters Local 2010 v. Regents of the University of California


Trial Court: Superior Court of Alameda County


Trial Judge: Hon. Michael Markman


Counsel:     Sloan Sakai Yeung & Wong, Steve Cikes, Timothy G. Yeung, and Stephen
Rowell for Appellant.


      Beeson Tayer & Bodine, Susan K. Garea for Respondent.




                                          15
