EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Business Necessity

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Investigations into employee misconduct may serve a legitimate business purpose. PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in their exercise of protected rights. Although a charging party can establish a prima facie case of interference without evidence of the employer’s motive, we may examine motive at the affirmative defense stage of our analysis if the charging party alleges that the employer’s purported business justification was pretextual or was not the “but for” cause of the employer’s action. (p. 4.) PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.)