EMPLOYER DETERRENCE OR DISCOURAGEMENT – Defenses
Single Topic for Decision 2835H
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410.02000 – Defenses
Once a charging party establishes a prima facie section 3550 violation, the burden shifts to the employer to prove a business necessity defense. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 35.) The University asserts that it had a legitimate business purpose for sending the FAQs, namely the Administrative Officer IIs’ (AO2) accretion and “a sudden influx of questions” that were “largely prompted by the Teamsters[’] own communication that it sent on October 16, 2020.” The Board found that the University failed to establish a business necessity defense for circulating its FAQs to employees. Even assuming the University had a business necessity to communicate with its employees about the accretion prior to completing meeting and conferring with Teamsters, it could have sent the statement that the University drafted and Teamsters approved on October 16, which provided the most pertinent information about the accretion: that the AO2s had been accreted into the Clerical and Allied Services Bargaining Unit and that bargaining between Teamsters and the University would begin soon. Not only could that statement be lawfully distributed under section 3553, but it did not have the same tendency to deter or discourage employee choice because it was not drafted in the prejudicial manner of the FAQs.
Furthermore, the University did not prove any urgency to respond to an allegedly high volume of employee inquiries about the accretion. The University’s evidence in support of its business necessity defense consisted of just three employee e-mails. Two employees inquired—after the University sent the FAQs—about whether they were properly classified as AO2s. The third employee asked simply, “Do you know anything about this?” in reference to Teamsters’ welcome e-mail. None of the employees’ questions were about becoming a Teamsters member or paying dues. Moreover, the University’s statement that it “knew there would be questions about joining the union and union dues” belies its own claim that it sent its communication in response to an “influx” of employee queries. The University did not establish that it narrowly tailored its communication to address employees’ actual inquiries about the accretion. (pp. 24-25.)