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504.14000 – Other/In General

If the effect of the employer’s conduct on protected rights is comparatively slight, the balancing analysis focuses on whether that conduct was “reasonably adapted” to achieve the legitimate business purposes asserted. (NLRB v. Brown (1965) 380 U.S. 278, 288.) In such cases, the question of the employer’s motive is still very much at issue. In “comparatively slight” cases, if the employer comes forward with evidence that it acted for a legitimate and substantial purpose, the charging party must produce evidence of unlawful motive to sustain the charge. However, because we find the University’s conduct was inherently destructive of protected rights, no further proof of anti-union motive is necessary. Under Carlsbad Unified School District (1979) PERB Decision No. 89, an employer’s inherently destructive conduct “will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.” (Id. at pp. 10-11.) Private-sector authorities decided both before and after Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 articulate a slightly different standard, whereby the Board must balance the employer’s asserted business interest against the severity of the harm to protected rights. If the employer’s asserted business justification outweighs the harm to protected rights, there is no liability. However, if the asserted justification is insufficient to outweigh the harm to protected rights, the employer will be held liable for an unfair labor practice. Under this balancing analysis, the Board may find an unfair labor practice, even if the employer produces evidence that it acted for a legitimate business purpose. In the present circumstances, we find it unnecessary to reconcile the divergent tests under Carlsbad and the private-sector authorities from which Campbell draws its inspiration. Both lines of cases derive from NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26 and, under either analysis, the University has failed to justify its inherently destructive conduct. Program Director’s animus toward UC-AFT, which both prompted and infected University decisionmaker’s decision, was not a circumstance beyond the University’s control. Even under the apparently more lenient private-sector standard, the resulting harm outweighed the University’s asserted business justification. The permanent separation of the employees from their employment through layoffs, and their wholesale replacement with other, nonunionized employees, coupled with the destruction of the collective bargaining relationship itself resulting from subcontracting Young Musician’s Program, outweighs any legitimate business purpose asserted by the University in this case. (pp. 90-93.)