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

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The Board first established its current interference test in Carlsbad Unified School District (1979) PERB Decision No. 89, p. 5 (Carlsbad). To establish a prima facie interference case under the Carlsbad standard, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes we enforce. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) A charging party need not establish that the employer held an unlawful motive. (Ibid.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive (which we sometimes label “comparatively slight”), the respondent may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, we balance the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at p. 36, fn. 19.) PERB precedent considers interfering conduct and employer justifications on a continuum, holding that if conduct rises to the level of “inherently destructive,” then the employer must justify it by demonstrating circumstances beyond its control, leaving it with no alternative course of action. (Carlsbad, supra, PERB Decision No. 89, pp. 10-11.)