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402.01000 – In General

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. PERB applies private sector labor law principles finding that when an interference claim is based on the employer’s conduct during litigation discovery, the employer’s interest in acquiring the information sought must be balanced against the impact disclosing the information would have on statutorily-protected rights.

PERB adopted the three-part test in Guess?, Inc. (2003) 339 NLRB 432 as the legal standard for determining whether deposition questions interfere with protected rights under the PERB-administered statutes: First, the questioning must be relevant. Second, if the questioning is relevant, it must not have an illegal objective. Third, if the questioning is relevant and does not have an illegal objective, the employer’s interest in obtaining this information must outweigh the employees’ protected rights. Given this broad scope of discovery in teacher dismissal proceedings, PERB could not conclude that the District’s questions were plainly irrelevant to material issues in the dismissal proceeding. PERB did not need to resolve whether the questioning had an illegal objective because it would not change the outcome of the inquiry. PERB found the District’s interest in obtaining the information did not outweigh the president’s and bargaining unit employees’ confidentiality interests, because inquiring into employees’ communications with union representatives chills their exercise of protected rights and the District did not show it had no other means of obtaining the information sought.