All notes for Subtopic 401.03000 – Ban on Distribution or Solicitation

DecisionDescriptionPERC Vol.PERC IndexDate
2697M County of Tulare (Service Employees International Union Local 521)
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
“A categorical prohibition against distributing literature or other means of communication interferes with fundamental rights of employee organizations to represent and communicate with employees and of employees to self-organize and communicate with one another in the workplace.” (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 44, emphasis in original.) Such a rule must not only be nondiscriminatory in language and in application, it must also permit protected activities in nonwork times and nonwork areas. (Id. at pp. 45-47.) more or view all topics or full text.
02/20/20
2590E Petaluma City Elementary School District/Joint Union High School District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Following remand and a formal hearing in this case, the ALJ concluded that the District interfered with protected rights, as alleged in the complaint, when, on September 5, and October 10, 2014, its agents sent e-mail messages prohibiting employees from distributing “flyers of a political or union nature” and from “handing out pamphlets” anywhere on the District’s premises at any time during the workday, without regard to non-duty time, such as employee breaks, or to unofficial “downtime” to the extent the District authorizes or permits limited employee solicitation for other non-work-related causes during worktime. (See, Petaluma, supra, PERB Decision No. 2485, pp. 50-51.) In finding liability on both counts of interference, the ALJ relied, in part, on uncontested testimony from Local 1881-represented employees that they had received the District’s September 5, 2014 and October 10, 2014 e-mail messages. more or view all topics or full text.
436510/22/18
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s argument that, because of its constitutional mandate to provide both the appearance and the fact of impartiality and neutrality to all litigants who appear before it, the ban on displaying writings or union insignia anywhere in the courthouse visible to the public is entitled to a presumption of legality. The Board reasoned that an objectively reasonable person viewing buttons or other regalia worn by Court employees and expressing support for the exclusive representative and/or its bargaining demands would not be attributed to the Superior Court judge assigned to the case. (p. 24.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act. more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Although “[p]rivate-sector cases have concluded that, depending upon the situation, the need to project a certain image may permit an employer to ban union regalia” in areas where employees will have contact with the public, the Board rejected the Court’s argument that its need to project an image of impartiality and neutrality is a special circumstance justifying its restrictions on union regalia in the courtrooms and the rooms where mediations are conducted because the Court put on insufficient evidence to support a finding of special circumstances and it cannot categorically ban all display of union logos or regalia. Additionally, the Court’s history of having no such policy or/and of its lax or non-existent enforcement of any unwritten and apparently unpublicized policy defeated any assertion of special circumstances requiring such a policy now. The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act. more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
The Board found lawful a personnel rule prohibiting distribution on “working time,” where that term was defined, in relevant part, as “the working time of both the employee doing the … distributing and the employee to whom the … [literature] is being directed.” PERB and NLRB precedents recognize that “Working time is for work” and an employer rule that relies on that term, without further specification, is in facial compliance with the law. PERB rejected the charging party’s exception that, by specifying some but not all exceptions, the rule was ambiguous and susceptible to an overly broad reading. An employer rule that identifies some, but not all exceptions to the term “working time” is not per se unlawful and there was no evidence that this portion of the rule was enforced in an overly broad manner. (pp. 26-27.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
The Board adopted the ALJ’s findings and conclusions that the Court’s rule, as written, was ambiguous and overly broad in its potential to discourage employees from engaging in protected activity in mixed-use areas during their non-duty time. Specifically, the rule does not take into consideration that, during regularly-scheduled meal breaks or other times when not in use for official Court business, certain working areas of the courthouse convert into nonworking areas. (p. 28.) The PERB-administered statutes contain a presumptive right of access to public-sector workplaces by union agents, subject to reasonable regulation. To constitute a “reasonable” regulation of this statutory-protected right, the employer must show that the particular regulation is both: (1) necessary for efficient operations and/or for the health and safety of employees or others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Rules directly affecting employee rights must also be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Where the record demonstrated that employees in various departments of the Court take their meal or rest breaks in unused courtrooms and jury rooms as well as at their cubicles, desks or other employee workstations, and even in a file room, such areas are considered “mixed-use” areas. During non-duty time, solicitation and the distribution of literature as well as other nondisruptive concerted activities in so-called mixed-use areas, are statutorily protected. (p. 29.) Because the Court’s categorical ban on distributing literature in such mixed-use areas is reasonably susceptible to an interpretation that unlawfully restricts protected activity during employees’ non-duty time, the Board found it overly broad and in violation of the Trial Court Act. (p. 29.) Rules directly affecting employee rights must be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
The Board rejected the Court’s argument that it could not be found liable for an overly broad ban on distribution in mixed-use areas because it had never enforced its rule to restrict protected activity during non-duty time. Under the decades-old Carlsbad standard, a prima facie interference violation is established if the employer’s conduct, including its promulgation or maintenance of a rule, tends to or does result in harm to employee rights. (p. 31.) Even absent enforcement, the promulgation or maintenance of an employer rule may interfere with protected rights because its ambiguity creates the reasonable possibility of a broad interpretation in the future that would produce a chilling effect on protected activity. (Ibid.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Instead of using the term “working time” to define the temporal scope of its restriction on solicitation and thereby restating PERB and private-sector decisional law, the Court’s personnel rule instead introduced the separate and undefined term “working hours,” which PERB precedents have treated as suspect, because of its potential to restrict protected activity during all “working hours” when employees are at work, including duty-free time. Given the ambiguity, the Board found the Court’s rule banning solicitation during “working hours” ambiguous and overly broad. While “Working time is for work,” and an employer may therefore prohibit solicitation during “working time,” an employer rule that prohibits solicitation or distribution during “working hours,” but makes no mention of duty-free times during “working hours,” such as meal or rest periods, when employees may solicit one another or distribute literature, may reasonably be interpreted as authoring no such activities during those duty-free periods of the day. more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s analogy to federal cases involving patient-care areas in hospitals to justify its ban on displaying writings or union insignia anywhere in the courthouse visible to the public. (.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act. more or view all topics or full text.
4114002/27/17
0601S State of California (Department of Personnel Administration, Developmental Services, and Mental Health); State of California (Department of Personnel Administration) (Communications Workers of America/California Association of Psychiatric Technicians)
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Where contract permits deferral of access for safety reasons, the employer may redirect leaflet distribution; p. 70, proposed dec. more or view all topics or full text.
111802012/30/86
2485E Petaluma City Elementary School District/Joint Union High School District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy whereby employees must be off school property when they hand out union literature stated prima facie allegation of employer interference with protected employee and organizational rights. Blanket geographic ban on solicitation, distribution and access rights is overly broad in that it fails to account for the fact that not all time spent on the employer’s premises is “on duty” or otherwise subject to employer restrictions on union or other concerted employee activity. Legitimate employer concerns of ensuring order, production or discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-work areas. Allegation that public school employer promulgated, maintained and enforced policy specifically prohibiting employees from distributing materials of “a political or union nature” stated prima facie allegation of employer interference with protected employee and organizational rights by making impermissible content-based restriction. Because the degree of intrusion into an employer’s property or managerial interests does not vary with the content of the material distributed, an employer’s only legitimate interest in regulating such conduct is in preventing employees from bringing literature onto its premises and distributing it there — not in choosing which messages to condone or suppress. In addition to non-work areas, once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is generally not free to ban other non-disruptive speech or conduct based solely on its content. more or view all topics or full text.
412306/30/16
0329H Regents of the University of California, University of California Los Angeles Medical Center
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Employer's rules restricting access to areas within the acute care hospital are reviewed, some upheld and others rejected. Test of balancing justifiable concerns and avoiding overbroad, unnecessary interference with statutory rights. HEERA provides to employee organization representatives, employee and nonemployee alike, a presumptive right of access to employees at reasonable times in areas where they work; p. 6. Presumptive right can be rebutted by evidence that a ban on access is necessary to prevent disruption of health care operations or disturbance of patients. Employee lounges, locker rooms and classrooms are not immediate patient care areas, and are legitimate avenues of access. Exceptions discussed including employer's right to make reasonable precautions to prevent spreading infections. Employer carries burden of proving disruption would occur. Availability of alternative access is important factor to infections. Employer carries burden of proving disruption would occur. Availability of alternative access is important factor to more or view all topics or full text.
71421408/05/83
0215E Barstow Unified School District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Even when employees or their union may be engaged in unprotected activity, an employer is not free to rescind statutory rights - use of District mail services, bulletin boards, telephones, meeting rooms, access to school sites, fringe benefit payments, and dues deduction, or unilaterally alter sick leave verification policy. more or view all topics or full text.
61313606/11/82
0130E Long Beach Unified School District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Employer's regulations regarding access must be reasonable, i.e., consistent with labor law principles in EERA which ensure effective and nondisruptive organizational communications; prohibition on distribution of and solicitation during 20 minute periods before and after classes unreasonable; rule prohibiting instructional aides from distribution or solicitation during same 20 minute periods unreasonable because those periods not part of workday; requirement that nonemployee union organizers obtain identification cards unreasonable because does not apply to all visitors; limitations on numbers of employees who can meet unreasonable; pp. 4-23. more or view all topics or full text.
41109805/28/80
0097E Antelope Valley Community College District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
District unlawfully interfered with employees' right to organize where its agents attempted to solicit employees to join alternate employee organization; pp. 16-23. more or view all topics or full text.
31009807/18/79
0012E San Juan Unified School District
401.3000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Ban on Distribution or Solicitation
Not unfair practice for an employer to provide proof of support to an employee organization other than the petitioner. Attempt by rival employee organization to obtain withdrawal of signatures is not per se violation of the Act. more or view all topics or full text.
17703/10/77