EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – In General; Prima Facie Case.

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To establish a prima facie interference case under either section 3519(a) or section 3519(b), a charging party union must show that an employer’s conduct tends to or does result in some harm to protected union and/or employee rights. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 7.) The union need not establish that the employer acted because of an unlawful motive. (Ibid.) If the union establishes a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Id. at pp. 7-8.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Id. at p. 8.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (p. 20.)