EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS – In General

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Neither the public nature of picketing nor the fact that the union and media outlets post images of picketers defeats an otherwise valid claim based on surveillance or the appearance thereof. PERB precedent recognizes that an employer’s surveillance or the appearance thereof tends to intimidate employees from engaging in protected activity, even when the protected activity is public facing. (See, e.g., Palomar Health (2024) PERB Decision No. 2895-M, pp. 44-45 (Palomar) [leafletting patrons at a public facility’s front entrance].) This is consistent with other decisions in which PERB has noted that employers are unique in that their control over discipline makes their conduct more likely to discourage protected activity. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23.) Also instructive is F.W. Woolworth Co. (1993) 310 NLRB 1197 (Woolworth), cited with approval in Palomar, supra, PERB Decision No. 2895-M, p. 43 and County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21. In Woolworth, even though the union had notified local media that employees would be leafletting store entrances, resulting in at least one television spot that included interviews with employees engaged in leafletting, the National Labor Relations Board found the employer liable for unlawfully photographing and video recording the leafletting. (Woolworth, supra, 310 NLRB 1197-1198 [affording little weight to the fact that the union chose to publicize its protected activities]; see also National Steel and Shipbuilding Co. v. National Labor Relations Bd. (D.C. Cir. 1998) 156 F.3d 1268, 1272 [upholding surveillance violation despite fact that union invited local media to attend rally]; John Ascuaga’s Nugget (1990) 298 NLRB 524, 554 fn. 105 [fact that media reporters and photographers were covering an event did not detract from conclusion that surveillance by employer tended to chill protected activity].) (pp. 8-9.)