EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS – In General

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EERA section 3543.5, subdivision (d) bars an employer from contributing “financial or other support” to an employee organization. To effectuate EERA’s purposes, this provision allows an employer to “extend benefits to a labor organization in a spirit of cooperation,” provided it does not “lend so much assistance that the employee organization appears to become a ‘company union.’” (City of Arcadia (2019) PERB Decision No. 2648-M, p. 24 (Arcadia).) In applying this standard, PERB examines the totality of an employer’s conduct to determine whether its support for an organization would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. (Clovis Unified School District (2021) PERB Order No. IR-63 (Clovis), pp. 21-22, citing Arcadia, supra, PERB Decision No. 2648-M, pp. 24-25.) This is an objective test. (Clovis, supra, PERB Order No. IR-63, p. 22.) The key question is whether the employer provides support while engaging in preferential treatment, domination, or interference. (Id. at pp. 22-25 [explaining that EERA section 3543.5, subdivision (d) is not a flat ban on financial or other support to an employee organization, but rather a nuanced one that depends on the circumstances].) For example, an employer offering release time to one nonexclusive representative must offer it equally to all nonexclusive representatives. (Clovis, supra, PERB Order No. IR-63, pp. 25.) As another example, employer support is more likely to make an organization appear to be a company union (and therefore be unlawful) if the organization primarily draws its financial support from the employer rather than from its members. (Id. at p. 24, fn. 15.) In contrast, it is typically lawful for an employer to bargain release time or other support with an exclusive representative that also has substantial other resources, though the employer may not otherwise interfere with or dominate the organization. And an employer that does reach such a deal with an exclusive representative typically need not provide equal support to a nonexclusive representative seeking to decertify the exclusive representative, as a nonexclusive representative is definitionally not comparable to an exclusive representative. (Id. at p. 25.) Employer payments to a union do not create the impression of a company union, and therefore are lawful, if a court or governmental agency orders them to remedy legal violations. (pp. 41-42.)