Headnote for 2868M, 401.05 Union Activity During Nonworking Time or in Nonworking Areas - California Public Employment Relations Board

EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Union Activity During Nonworking Time or in Nonworking Areas

Single Topic for Decision 2868M

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401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.05000 – Union Activity During Nonworking Time or in Nonworking Areas

An employer typically does not afford reasonable access if it infringes on an employee’s ability to engage in protected activity either in a nonwork area or during a nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, p. 20.) For this reason, any employer rule must clearly allow protected activity in nonwork areas and nonwork time. (Ibid. [employers must refrain from overbroad restrictions such as those that apply “during the workday,” without differentiating between times an employee is working and times an employee is taking a break]; see also Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 195-197 [rule prohibiting protected activities in “working areas” was unlawfully overbroad because it could be interpreted as categorical ban on all such activities anywhere on employer’s premises].) Even if a workplace includes sensitive areas focused on acute patient care, the employer must narrowly tailor its rules and afford access to the fullest degree possible given its unique constraints. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 28, 33-34, 38-39; County of Riverside (2012) PERB Decision No. 2233-M, p. 9 (Riverside); Regents of the University of California, University of California at Los Angeles Medical Center (1983) PERB Decision No. 329-H, p. 10 (UCLA).) A hospital’s non-discriminatory restriction on non-business solicitation and distribution is presumptively valid if it covers only immediate patient care areas. (Regents of the University of California (2018) PERB Decision No. 2616-H, p. 11; Riverside, supra, PERB Decision No. 2233-M, p. 9.) But a hospital must normally allow both employee and non-employee union representatives to traverse patient care areas if necessary to reach areas where PERB precedent allows non-business activities. (Riverside, supra, PERB Decision No. 2233-M, pp. 9 & 11; UCLA, supra, PERB Decision No. 329-H, pp. 9-10, 14, 16-17.) (pp. 55-56.)