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

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Once a prima facie case is established, the Board has categorized employer conduct as “inherently destructive” or having a “comparatively slight” impact (see, e.g., Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 3), but the latter descriptor signifies only that the tendency to harm protected rights is something less than inherently destructive; it does not mean that the tendency to harm is necessarily “slight.” Within the category of employer actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights to the extent possible. (See, e.g., County of San Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 36 [“The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm.”]; Claremont Unified School District (2019) PERB Decision No. 2654, p. 23 [“The key to an appropriate directive is that it is tailored to the particular circumstances.”]; Regents of the University of California (2004) PERB Decision No. 1700-H, adopting proposed decision at p. 60 [in devising access rules for its main administrative building, employer may have had legitimate concern that demonstrators might block ingress and egress or otherwise disrupt operations, but employer broadly prohibited all demonstrations rather than narrowly drawing its rules to address legitimate operational needs].)