EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Access - Union Right
Single Topic for Decision 2300H
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401.04000 – Access – Union Right
PERB has held that access rules are negotiable and unilateral changes in those rules are unfair practices under HEERA. This Board has consistently described leafleting to advertise a labor dispute as presumptively protected activity. The Board held that the distribution of leaflets by community college faculty members to members of the public attending the college’s graduation ceremonies was protected conduct under EERA. As in this case, the leaflets criticized the employer’s policies in the context of a labor dispute and were distributed on the college’s property. The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc. Union access rules are negotiable. Access to the public employer’s property for the purpose of communicating the union’s message implicates a variety of issues that the mediatory influence of collective bargaining is likely to resolve, such as reasonable time, place and manner restrictions, and the designation of places that the employer may legitimately reserve for itself as an area in which it is the only permitted speaker. The regulation at issue here purports to regulate more than traditional access to employees, as its scope reaches to union hand billing the general public and other staff on university property. We find that these broader regulations on union leafleting activity designed to reach both the public and employees are also within the scope of negotiations. A union’s publicizing its dispute over terms and conditions of employment to the public at large as well as to its members and other employees goes to the essence of the employment relationship. Providing information to the public and urging it to support labor’s demands with the public employer is one of the more important levers employees and their representative organizations have in securing demands over wages, benefits and other terms and conditions of employment. Few subjects could be more closely related to or involved with the employment relationship. The right of access to facilities where employees work is presumptive and employer restrictions on that right must be narrowly drawn. In the absence of facts demonstrating why daily access to break rooms would be disruptive to university operations, the employer may not prevail here by simply saying the union had all the access it needs. Such a position does not meet the standard of a narrowly drawn regulation that avoids overbroad and unnecessary interference. Further, it is not for the employer to determine how much access is “needed” by the union, especially in the absence of evidence that such frequent access was or tended to be disruptive.