EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Ban on Distribution or Solicitation

Single Topic for Decision 2517C

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* * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *

The Board adopted the ALJ’s findings and conclusions that the Court’s rule, as written, was ambiguous and overly broad in its potential to discourage employees from engaging in protected activity in mixed-use areas during their non-duty time. Specifically, the rule does not take into consideration that, during regularly-scheduled meal breaks or other times when not in use for official Court business, certain working areas of the courthouse convert into nonworking areas. (p. 28.) The PERB-administered statutes contain a presumptive right of access to public-sector workplaces by union agents, subject to reasonable regulation. To constitute a “reasonable” regulation of this statutory-protected right, the employer must show that the particular regulation is both: (1) necessary for efficient operations and/or for the health and safety of employees or others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Rules directly affecting employee rights must also be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.)