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

Single Topic for Decision 2452E

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An employer may freely express or disseminate its views, arguments or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. The safe harbor for employer speech does not apply, however, to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship or deliberate exaggerations. The Board looks to the surrounding circumstances in which employer speech occurs, including the employer's power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another. p. 25. Although PERB’s test for employer interference requires a balancing of protected rights against the employer’s asserted justification of operational necessity, because, as noted above, during the initial investigation of a charge. PERB accepts the charging party's factual allegations as true, it is generally not appropriate to dismiss without a hearing interference allegations on the basis of an affirmative defense, such as an employer's right to free speech, unless the defense can be established as a matter of law. p. 25. Resolving factual disputes raised by the employer's affirmative defense should be considered in a formal hearing and not during the initial investigation into a charge or upon Board review of a dismissal/refusal to issue a complaint. p. 29.