EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Union Consent or Waiver

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The employer failed to meet its burden to establish waiver. As a defense to its decision to limit access rights, the employer argued that when the unions agreed in their respective CBAs that each of them “shall designate up to two (2) authorized representatives who shall be granted access to Palomar Health facilities during hours of operation for the purposes of ensuring compliance with the [CBA], adjusting grievances, and updating [union] bulletin boards,” they waived their statutory right to leaflet or table in various non-work areas of a medical center. These arguments failed because the blanket prohibition against solicitation and distribution of literature, without any demonstrated reasonable alternatives, seriously impaired employees’ rights to communicate about union matters and thus could not be waived as a matter of law; because an agreement to grant access to a specific number of representatives for specific reasons does not clearly and unmistakably indicate that the unions waived access for other representatives or for other protected reasons; and because ample record evidence of the parties’ practices under the CBAs included regular leafletting and tabling in the areas the employer then asserted such activities were not allowed, further confirming that the unions did not clearly waive their statutory access rights. (pp. 34-37.)