EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Ban on Distribution or Solicitation

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An access rule is unlawful if, on either a facial or as applied basis, it singles out protected conduct or speech, as compared to non-protected activities or speech. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 18-19.) Even if a rule is nondiscriminatory, it must allow an exclusive representative reasonable access to employer property to communicate with bargaining unit employees, distribute literature, investigate workplace conditions, and assess contractual and statutory compliance. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 26-39.) The employer bears the burden of proving that a restriction on access to its premises is: (1) necessary for safe or efficient operations; and (2) narrowly drawn to avoid overbroad, unnecessary interference with protected rights. (Id. at pp. 26-27.) These principles apply irrespective of whether the person seeking access is a bargaining unit member or a union representative who does not work for the employer. (Id. at p. 27.) (p. 55.)