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1304.03000 – Employer Conduct

Employer distribution of a flyer that contains no threat of loss of benefits is not sufficient to overturn an election. It may be appropriate to consider new evidence that bears directly on timely objections. However, allegedly newly discovered evidence should normally be considered only upon clear and convincing proof that it is not only newly discovered, but also previously unavailable. Board will consider allegations of objectionable conduct which are based on events not raised prior to the formal hearing. Charging Party made no showing that the evidence concerning these events was newly discovered or previously unavailable. Conduct occurring prior to the filing of the petition will be considered in post-election objections only under certain circumstances. Although supervisor's surveillance of union meeting was improper, it lasted only a few minutes and occurred more than one month prior to the filing of the decertification petition, and over three months prior to the election. There was no evidence that this incident was part of a pattern of misconduct, nor was it so egregious as to be considered abusive of PERB's electoral process, and the allegations based on the surveillance were dismissed. An employer has the right to express its views on employment related matters over which it has legitimate concerns in order to facilitate full and knowledgeable debate. However, the right of employer speech is not unlimited, and speech which contains a threat of reprisal or force or promise of benefit will be perceived as a means of violating the Act and will, therefore, lose its protection. In the instant case, repeated statements by a supervisor to his subordinates that they would be better off with one competing organization rather than another were clearly improper. However, in light of the small number of employees to whom the statements were addressed, and the fact that two of those employees were activists of the disparaged competing organization throughout the campaign, the Board determined that the probable impact of supervisor's statements was minimal and insufficient to warrant setting aside the election. Board found that evidence was insufficient to support allegation that District's memo announcing salary bonuses, which was distributed by competing organization, had a probable effect on the election. District did not violate its obligation of strict neutrality merely be writing the memo. The record reflects that the agreement on the bonus was reached pursuant to the contractual salary formula and the established bargaining relationship between the competing organization and the District. Neither the issuance nor the timing of the bonus was unusual, and that the District did not engage in objectionable conduct when it agreed to the salary bonus.