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

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To analyze allegations of employer interference with the rights of employees or employee organizations, PERB uses the standard articulated in Carlsbad Unified School District (1979) PERB Decision No. 89. A charging party establishes a prima facie case of interference where an employer’s conduct tends to or does result in at least slight harm to protected rights. The test for whether a respondent has interfered with protected rights does not require that unlawful motive be established. Once a charging party has established a prima facie case, the burden shifts to the respondent. The degree of harm dictates the respondent’s burden. If the harm is “inherently destructive” of protected rights, the respondent must show that the interference results from circumstances beyond its control and that no alternative course of action was available. For conduct that is harmful but not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. In such cases, PERB balances the asserted need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. 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 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.