EMPLOYER DETERRENCE OR DISCOURAGEMENT – In General; Standards

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The test for whether conduct or communication deters or discourages employees in making the choices enumerated in section 3550 is objective. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 24.) It is the charging party’s burden to show that the conduct or communication tends to influence employee free choice, not that the conduct actually did influence employee choice. (Ibid.) PERB will look first to the conduct or communication itself in determining whether it tends to influence employee free choice. (Ibid.) But context matters in even the objective assessment. (Ibid.) Therefore, we also will examine the context surrounding the conduct or communication when determining whether such conduct is reasonably likely to deter or discourage employee choices on union matters. (Ibid.) Because OE3 did not establish agency, its claim that the District deterred or discourages public employees or applicants to be public employees from becoming or remaining members of OE3, from authorizing representation by OE3, or from authorizing due or fee deductions to OE3, was dismissed. (pp. 27-28.)