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409.06000 – Free Speech

In evaluating whether employer speech constitutes interference with protected rights, “the Board will look 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.” (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.) E-mail from manager to unit member fell outside the range of permissible employer speech in two respects. First, it was coercive in that it suggested that employees may lose desirable assignments due to protected activity. Next, management e-mail suggested that employee might avoid adverse action and/or obtain preferential treatment for opposing union leadership. It is of no consequence whether unit member shared manager’s e-mails with any other employees or Union representatives. Manager’s coercion was unlawful even if no one other than unit member receiving e-mail knew of it. (See, e.g., Claremont Unified School District (2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision No. 834, p. 13 [a brief statement made only to one person is sufficient to support an interference claim].) Furthermore, employer’s e-mail also tended to interfere with others’ protected conduct given the possibility that unit member might forward it to other employees or share the message contained in the e-mail.