EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Free Speech

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In an interference case involving employer speech, the surrounding circumstances are relevant to determine if an employee or union representative would objectively tend to feel that the communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer does not commit an interference violation if it expresses or disseminates its views, arguments, or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. This safe harbor for employer speech does not apply, however, “to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.” The Board examines the context of employer statements to determine whether they convey a threat of reprisal or force, promise of benefit, or demonstrate a preference for either one organization over another, or one group or another within a single organization. In cases involving employer speech, PERB considers the accuracy of the communication in conjunction with the employer’s need to communicate in deciding whether the employer can establish an affirmative defense. (pp. 31-32.)