EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES – In General; Standards

Single Topic for Decision 2404E

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PERB does not look favorably on overbroad employer directives that employees would construe as prohibiting lawful speech or other protected activity; to prove interference, a charging party need not establish that the rule was promulgated in response to protected activity, that it expressly restricts protected activity or that it expressly threatens discipline; rather, the question is whether the employer rule would tend to chill employees in the exercise of their statutory rights; when given its reasonable meaning, considered in the context in which it was given and construed against the employer to the extent of any ambiguities, the employer’s directive not to contact faculty, staff or students in a letter stamped “confidential” would tend to chill employees in the exercise of protected activities including discussing concerns about working conditions with co-workers or pursing a grievance; while an employer may demand confidentiality in its investigations in certain circumstances, the burden is squarely on the employer to demonstrate that confidentiality is necessary to preserve the integrity of the investigation; an employer fails to establish its affirmative defense based on operational necessity where it routinely prohibits employees placed on administrative leave from talking about the substance of the investigation without justifying its desire for confidentiality.