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

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To establish a prima facie interference case, 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 PERB enforces. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) 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, the respondent may attempt to justify its actions based on business necessity. (Ibid.) In such cases, PERB balances the asserted business necessity against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds 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 necessity 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.)