All notes for Subtopic 401.05000 – Union Activity During Nonworking Time or in Nonworking Areas
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas An employer typically does not afford reasonable access if it infringes on an employee’s ability to engage in protected activity either in a nonwork area or during a nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, p. 20.) For this reason, any employer rule must clearly allow protected activity in nonwork areas and nonwork time. (Ibid. [employers must refrain from overbroad restrictions such as those that apply “during the workday,” without differentiating between times an employee is working and times an employee is taking a break]; see also Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 195-197 [rule prohibiting protected activities in “working areas” was unlawfully overbroad because it could be interpreted as categorical ban on all such activities anywhere on employer’s premises].) Even if a workplace includes sensitive areas focused on acute patient care, the employer must narrowly tailor its rules and afford access to the fullest degree possible given its unique constraints. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 28, 33-34, 38-39; County of Riverside (2012) PERB Decision No. 2233-M, p. 9 (Riverside); Regents of the University of California, University of California at Los Angeles Medical Center (1983) PERB Decision No. 329-H, p. 10 (UCLA).) A hospital’s non-discriminatory restriction on non-business solicitation and distribution is presumptively valid if it covers only immediate patient care areas. (Regents of the University of California (2018) PERB Decision No. 2616-H, p. 11; Riverside, supra, PERB Decision No. 2233-M, p. 9.) But a hospital must normally allow both employee and non-employee union representatives to traverse patient care areas if necessary to reach areas where PERB precedent allows non-business activities. (Riverside, supra, PERB Decision No. 2233-M, pp. 9 & 11; UCLA, supra, PERB Decision No. 329-H, pp. 9-10, 14, 16-17.) (pp. 55-56.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2717E | Alliance Environmental Science and Technology High School, et al. 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Employer violated EERA when its agent, without business justification, instructed union organizer and off-duty employee to leave the premises and not engage in protected organizing activities on-campus. (Page 29.) more or view all topics or full text. | 44 | 183 | 05/18/20 |
| 2717E | Alliance Environmental Science and Technology High School, et al. 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Employer interfered with protected right to engage in organizing activities while off-duty when it summoned the police in response to employees distributing union flyers. (Page 23.) more or view all topics or full text. | 44 | 183 | 05/18/20 |
| 2697M | County of Tulare (Service Employees International Union Local 521) 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas To be lawful, a rule must not only be nondiscriminatory in language and in application, it must also permit protected activities in nonwork times and nonwork areas. In drafting a prohibition that carves out nonwork time and nonwork areas, an employer should refrain from using vague or overbroad phrases such as “during the workday” or “off school property,” which fail to note explicitly that the prohibition does not apply in those places and times in which the employer tolerates other nonofficial activities, such as during breaks. (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 44-47.) more or view all topics or full text. | 44 | 141 | 02/20/20 |
| 2593H | Regents of the University of California (Irvine) 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Because work time is for work, an employer may restrict non-business activities during work time, but it may not single out union activities for special restriction, or enforce general restrictions more strictly with respect to union activities. more or view all topics or full text. | 43 | 69 | 10/26/18 |
| 1921E | Desert Community College District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas The Board has substantially limited an employer’s ability to censor or impose prior restraints upon the content of union communications. The Board has held that “school employer regulation under section 3543.1(b) should be narrowly drawn to cover the time, place and manner of the activity, without impinging on content unless it presents a substantial threat to school operations.” (Richmond Unified School District/Simi Valley Unified School District (1979) PERB Decision No. 99.) The presence of an item entitled “Board of Trustees Election” on a union meeting agenda does not remove the meeting from protection under section 3543.1(b), which provides unions a right of access to employer facilities to hold meetings to discuss employer-employee relations. The District vice principal’s emails seeking to remove an item referencing an upcoming Board of Trustees election from an agenda for a members-only union meeting to be held at the college premises constituted unlawful interference with the protected rights of the employees and the employee organization. more or view all topics or full text. | 31 | 137 | 08/10/07 |
| 1908E | Delano Union Elementary School District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas The District interfered with the Association’s rights when Principal Bans admonished Kotch both verbally and in writing for interviewing another employee off school grounds and before contract hours. more or view all topics or full text. | 31 | 111 | 06/06/07 |
| 1365Sa | State of California (Employment Development Department) 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Unity break, which consisted of employees displaying signs relating to ongoing contract negotiations at workstations during their break, is not protected activity because other employees were working in the same area at the time. Employees have a protected right to communicate with each other at the worksite concerning the terms and conditions of employment during nonwork time in nonwork areas. If those activities do not occur during nonwork time in nonwork areas, the employer must be given leeway to restrict those activities in order to maintain order, production or discipline. Memorandum which prohibits employees from engaging in job actions "during state time or inside the building" is ambiguous and overbroad because it appears to prohibit communication among employees during nonwork times and/or in nonwork areas. When the state issued such a memorandum in violated the Dills Act. more or view all topics or full text. | 25 | 32057 | 05/04/01 |
| 1365S | State of California (Employment Development Department) * * * SUPERSEDED by State of California (Employment Development Department) (2001) PERB Decision No. 1365a-S 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas * * * SUPERSEDED IN PART by State of California (Employment Development Department) (2001) PERB Decision No. 1365a-S, where the Board held with respect to a memorandum issued in response to unprotected activity that an employer must restrict any future prohibition to only unprotected activities and cannot use ambiguous language that may also include protected activity. * * *Thirty employees conducted the unity break during their morning break in the Long Beach EDD office, they did so in a work area in which approximately 30 other employees were at their work stations on duty. Therefore, the unity break activity did not occur during nonwork time in a nonwork area and EDD may restrict the activity in order to maintain order and production; pp. 10-11. Activities such as the unity break at issue in this case may be restricted by the employer if they do not occur during nonwork time in nonwork areas. In these circumstances, the employer must be given leeway to restrict those activities in order to maintain order, production or discipline. This would include situations in which the employees conducting the activities are on nonwork time, but the activities occur in a work area during a period in which other employees are working; p. 10. The State did not unlawfully retaliate against the employee for his exercise of protected activity when it gave him the October 9 memorandum advising him of the restrictions on unity break activity, because it allowed activity in nonwork areas during nonwork time; p. 11. more or view all topics or full text. | 24 | 31026 | 12/17/99 |
| 0608E | Long Beach Unified School District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Where contract specifically precluded access during the conference period because it is designated as "worktime", it is presumptively unavailable for access; pp. 18-25. 20-minute duty periods before and after school are defined by contract as part of workday and are unavailable for access. In so finding, the Board reversed Long Beach School Dist. (1982) PERB Dec. No. 130 which required a showing that such periods must be "expressly and/or uniformly reserved for preparation" to be considered worktime; pp. 18-25. more or view all topics or full text. | 11 | 18029 | 01/07/87 |
| 2485E | Petaluma City Elementary School District/Joint Union High School District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas 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. 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. more or view all topics or full text. | 41 | 23 | 06/30/16 |
| 0230E | San Ramon Valley Unified School District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Outright banning of union representative from employee lunchroom, or otherwise requiring representative to obtain prior permission constituted an unreasonable restriction violative of the union's statutory right of access; employer's defense that it was protecting employees from the intrusion of "outsiders" rejected. more or view all topics or full text. | 6 | 13184 | 08/09/82 |
| 0174S | State of California (Department of Forestry) and State of California (Governor's Office of Employee Relations) 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas State employer did not interfere with right of rank-and-file union members by restricting participation of supervisor-union members in election campaign. Despite role of certain supervisors as officers of union, State employer has right to maintain its work place free from supervisory influence in election campaign. Restriction is permissible even away from work place because supervisor-subordinate relationship remains even away from work location. more or view all topics or full text. | 5 | 12119 | 09/21/81 |
| 0145E | Marin Community College District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas Employer prohibition against solicitation by employee organization during rest and coffee breaks is presumptively invalid. Employer did not offer adequate justification to rebut the presumption. more or view all topics or full text. | 4 | 11198 | 11/19/80 |
| 0130E | Long Beach Unified School District 401.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Union Activity During Nonworking Time or in Nonworking Areas 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. | 4 | 11098 | 05/28/80 |