EMPLOYER DETERRENCE OR DISCOURAGEMENT – In General; Standards

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Section 3550 provides that a “public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.” The Board interprets “deter or discourage” as to tend to influence an employee’s free choice regarding whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues or fees. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 21 (Regents).) The test for whether an employer’s communication “tends to influence” is objective. (Id. at p. 24.) The charging party has the burden to show that the communication tends to influence, not that it actually did influence free choice. (Ibid.) We will first examine the content of the communication itself to determine whether it tends to influence employee free choice, and then consider the communication’s context. (Id. at pp. 24-25.) Preliminarily, however, “where a charging party meets its burden to prove an employer violated section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550.” (Id. at p. 37.)

In light of the Board’s conclusion that the University violated section 3553, subdivision (b), it found that the University presumptively violated section 3550 by unilaterally disseminating the FAQs, and that it did not rebut that presumption by establishing the FAQs fell into the “narrow” category of communications that may concern employee rights to choose whether or not to join or support an employee organization but yet not tend to influence employee decisions on those topics. (pp. 20-21.)