EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES – Promise of or Withholding of Benefits

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During the election process, the employer may not grant or withhold benefits unless: (1) operational necessity or factors other than the pendency of the election justify the decision and timing; or (2) the action is consistent with past practice; p. 30. Neither granting or withholding benefits during the election process is per se unlawful. The test is whether the employer manipulates benefits to influence the employees' decision during the union's organizing campaign; p. 30. PERB applies an objective standard to determine if an employer's speech contains a threat or promise of benefit, view the employer's statement in light of the surrounding circumstances and places considerable weight on the accuracy of the speech; p. 23. When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's consequences of a union victory that did not flow naturally from the collective bargaining relationship and were totally within the employer's control. Therefore, the speech contained a threat of reprisal and lost its free speech protection; p. 26. Employer's good faith understanding of its bargaining obligation is irrelevant.