EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality
Single Topic for Decision 2770M
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700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality
MMBA section 3506.5, subdivision (d) consists of three clauses, providing that public agencies shall not: (1) “dominate or interfere with the formation or administration of any employee organization,” (2) “contribute financial or other support to any employee organization,” or (3) “in any way encourage employees to join any organization in preference to another.” PERB has consistently held that this provision requires an employer to remain strictly neutral when two unions are in competition with one another. The test is “whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other.” Thus, a strict neutrality violation requires neither proof of the employer’s motive nor proof that the employer conduct did, in fact, influence employees. (County of San Bernardino (2018) PERB Decision No. 2556-M, adopting proposed decision at p. 22.) An employer does not tend to tilt the scales toward or away from a union if it merely complies with its legal duty to provide information, or, conversely, honors legally protected privacy rights by instead negotiating an appropriate accommodation of privacy and the union’s need for the information. In this case, however, the employer deviated from such an approach and thereby tilted the scales toward the incumbent union.