All notes for Subtopic 409.01000 – Business Necessity
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2770M | City of Bellflower 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Employer failed to show a valid business necessity justifying its decision to grant an incumbent union’s request for copies of competing union’s decertification petition proof of support documents, which tends to interfere with protected rights. The request did not establish incumbent union’s ultimate right to the requested documents. Rather, it triggered employer’s duty to assess the request and respond lawfully. Where a union’s request is presumptively relevant but would invade legally protected confidentiality or privacy interests, the employer must bargain with the requesting union to accommodate the union’s interest in the information and the legally protected privacy right. In such negotiations, narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information. Here, the employer did not engage in discussions with either union over the incumbent union’s request for proof of support documents, and the record does not reveal that the employer attempted to weigh countervailing interests. Moreover, the incumbent union did not have a need for the documents that outweighed employee confidentiality interests. Proof of support is a unique type of statement supporting a union, which labor law principles have long protected, both in the private sector and in the California public sector since the Legislature enacted a bill to reverse San Juan Unified School District (1977) EERB Decision No. 12. more or view all topics or full text. | 45 | 119 | 06/08/21 |
| A448E | Community Learning Center Schools, Inc. 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Although motive is not relevant to a prima facie interference allegation, it may be part of the respondent’s affirmative defense, such as a legitimate business purpose. In such cases, PERB analyzes the proffered defense similar to a “mixed motive” discrimination case, by determining not only whether the employer’s stated justification is legitimate, but also whether it was the reason for the employer’s action. Thus, motive and specifically whether a respondent’s proffered motive is pretextual, may be an issue relevant to an employer’s defense to an interference allegation. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| A448E | Community Learning Center Schools, Inc. 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Although motive is not relevant to a prima facie interference allegation, it may be part of the respondent’s affirmative defense, such as a legitimate business purpose. In such cases, PERB analyzes the proffered defense similar to a “mixed motive” discrimination case, by determining not only whether the employer’s stated justification is legitimate, but also whether it was the reason for the employer’s action. Thus, motive and specifically whether a respondent’s proffered motive is pretextual, may be an issue relevant to an employer’s defense to an interference allegation. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| 2822E | Victor Valley Union High School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The questions asked of the union president were broad in scope and not narrowly tailored to the allegations in the statement of charges or the union president’s involvement in the bargaining unit member’s defenses, particularly regarding the claims of retaliation for reporting unsafe working conditions and requesting accommodations. If the District had narrowly tailored its questions to the union president’s involvement in co-authoring a complaint, the personal observations of the bargaining unit member’s misconduct, or the involvement in securing accommodations for the bargaining unit member, the District’s interest in obtaining that information may have outweighed the harm to protected rights. The District failed to show it narrowly tailored its actions to attain an important purpose while limiting harm to protected rights to the extent possible. With regard to most of the questions, the questions were not narrowly tailored and District’s need for the answers does not outweigh the employees’ strong interest in confidentiality. more or view all topics or full text. | 47 | 11 | 06/14/22 |
| 2771M | City of Long Beach 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Employer failed to show a valid business necessity justifying its decision to grant an incumbent union’s request for copies of competing union’s decertification petition proof of support documents, which tends to interfere with protected rights. The request did not establish incumbent union’s ultimate right to the requested documents. Rather, it triggered employer’s duty to assess the request and respond lawfully. Where a union’s request is presumptively relevant but would invade legally protected confidentiality or privacy interests, the employer must bargain with the requesting union to accommodate the union’s interest in the information and the legally protected privacy right. In such negotiations, narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information. Here, the employer did not engage in discussions with either union over the incumbent union’s request for proof of support documents, and the record does not reveal that the employer attempted to weigh countervailing interests. Moreover, the incumbent union did not have a need for the documents that outweighed employee confidentiality interests. Proof of support is a unique type of statement supporting a union, which labor law principles have long protected, both in the private sector and in the California public sector since the Legislature enacted a bill to reverse San Juan Unified School District (1977) EERB Decision No. 12. more or view all topics or full text. | 46 | 1 | 06/09/21 |
| 2666E | San Diego Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The evidence supporting the employer’s burden on the retaliation allegations is also sufficient to meet its burden in response to the concurrent interference allegations, i.e., that operational necessity justified any harm to charging party’s protected rights. (p. 7, fn. 6.) more or view all topics or full text. | 44 | 55 | 08/27/19 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Where employer conduct is deemed “inherently destructive” of protected rights, it will be excused only when caused by circumstances beyond the employer’s control and when no alternative course of action was available. The Board rejected University’s argument that it was justified in eliminating the Young Musician’s Program because 1) the Program did not fit into the strategic goals of other University departments or programs; and 2) transferring the Program’s operations to a non-University entity, which would retain significant affiliations with the University, was the most practical solution for disposing of endowed funds specifically earmarked for the Program. Even accepting these contentions as true, the Board found that they did not account for the alternatives that were available to the University, including providing UC-AFT with adequate notice of the decision to subcontract the Program, and, upon request, to bargain with UC-AFT over negotiable aspects of this decision. Nothing in HEERA required the University to choose different priorities, to reallocate its resources in a different manner, or to come to a different decision than the one University’s primary decisionmaker reached to close the Program and continue operations under a different organization. HEERA section 3570 does, however, require the University or its representatives to “engage in meeting and conferring with the employee organization selected as exclusive representative of an appropriate unit on all matters within the scope of representation.” This obligation is not extinguished, even in emergency circumstances, and, in any event, the University identified no immutable deadline or managerial interest that would have been negated had implementation been delayed. (pp. 71-72.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Like PERB, the California Court of Appeal has held that the “inherently destructive”/“comparatively slight” framework from NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, may be appropriate in interference cases, as when an employer applies workplace rules that, regardless of motive, have the effect of penalizing employees who are distinguishable only by their prior participation in protected activity. (M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 670, 675–676.) Additionally, the California Supreme Court has held that wholesale replacement of unionized with non-union employees is inherently destructive under Great Dane and similar cases, because it “has a manifest and substantial adverse impact on organizational rights.” (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 758.) (pp. 70-71.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2702M | City of Sacramento 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity A history of union insignia display in the workplace without resulting incidents is relevant to determine whether special circumstances exist (p. 11), and a history of allowing non-union related items on hardhats without incident also weighs against finding special circumstances (p. 14.) An employer need not wait until an actual injury occurs before banning union insignia for safety reasons; but to establish safety-based special circumstances to support such a ban, the employer must present concrete evidence that employee safety is foreseeably threatened by displaying the union insignia and that it has acted consistently with its stated concern. (p. 14.) more or view all topics or full text. | 44 | 153 | 03/25/20 |
| 2702M | City of Sacramento 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Contrary to an employer’s stated safety concerns—banning stickers is necessary to prevent damage to employee hardhats—it failed to produce any evidence that the ban was necessary to prevent hardhat damage. Lack of evidence that the employer conducted any regular inspection of the hardhats for damage undermined those concerns. It also allowed employees to affix other items to their hardhats with adhesive materials without any explanation regarding those materials’ effect on the hardhats. (pp. 12-14.) more or view all topics or full text. | 44 | 153 | 03/25/20 |
| 2702M | City of Sacramento 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity PERB considers several factors in determining whether special circumstances exist that would justify a restriction on the right to display union insignia: whether the insignia could jeopardize employee safety, disrupt employee discipline (e.g., exacerbate employee dissention or cause distraction from work demanding great concentration), or negatively affect the employer (e.g., damage machinery, products, or a certain image necessarily projected for the public). Also important is the specific context in which the prohibition was enacted or enforced, the locations involved, and the parties’ past practice. (p. 10.) more or view all topics or full text. | 44 | 153 | 03/25/20 |
| 2702M | City of Sacramento 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The employer has the burden of establishing that its policy or rule abrogating employees’ right to display union insignia is justified by special circumstances. This analysis is done through a case-by-case approach that considers the particulars of the employer’s operations; the employer must make a concrete, fact-based evidentiary showing that special circumstances exist. (p. 10.) more or view all topics or full text. | 44 | 153 | 03/25/20 |
| 2702M | City of Sacramento 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The right to wear union insignia in the workplace is not unlimited and may be subject to reasonable regulation. However, any restriction on the right to display union insignia and messages in the workplace is presumptively invalid; it is permitted only if special circumstances exist justifying the prohibition. (p. 9.) more or view all topics or full text. | 44 | 153 | 03/25/20 |
| 2687H | Trustees of the California State University (Northridge) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Overruling in part State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S, p. 14, Board clarified that it does not adhere to a “general rule” that investigations into employee misconduct serve a legitimate business purpose. Rather, PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in the exercise of protected rights. more or view all topics or full text. | 44 | 109 | 12/13/19 |
| 2632M | Contra Costa County Fire Protection District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity While motive is not part of the prima facie case of interference, where the respondent has asserted that it acted for a legitimate business purpose, PERB analyzes the affirmative defense, in part, using principles applicable in a “mixed motive” discrimination case. Specifically, the Board may consider not only whether the stated justification is legitimate, but also whether it was, in fact, the reason for the employer’s conduct. Affirmative defense fails where the key distinction at the heart of the unlawful pay structure is not a distinction in which employees earn more due to higher skill or higher level work; to the contrary, the only explanation that accurately describes the District’s pay structure is that the District wanted unrepresented managers to earn more, even if they were at the same level as represented managers. more or view all topics or full text. | 43 | 150 | 03/07/19 |
| 2687H | Trustees of the California State University (Northridge) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity An employer’s conduct during an investigation can be unlawful even if the employer lawfully decided to investigate potential misconduct. (p. 5, fn. 6.) more or view all topics or full text. | 44 | 109 | 12/13/19 |
| 2687H | Trustees of the California State University (Northridge) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Investigations into employee misconduct may serve a legitimate business purpose. PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in their exercise of protected rights. Although a charging party can establish a prima facie case of interference without evidence of the employer’s motive, we may examine motive at the affirmative defense stage of our analysis if the charging party alleges that the employer’s purported business justification was pretextual or was not the “but for” cause of the employer’s action. (p. 4.) PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.) more or view all topics or full text. | 44 | 109 | 12/13/19 |
| 2654E | Claremont Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct. (p. 20.) In cases involving broad no-contact directives, the employer bears the burden of proving the existence of an operational necessity for the directive as to that specific employee under the particular circumstances. (pp. 20-21.) The key to an appropriate directive is that it be tailored to the circumstances, particularly the unprotected conduct, at issue. (pp. 23-24.) A blanket prohibition on any communications with other District employees based on asserted concerns regarding harassment and intimidation is overbroad where the employee’s precipitating communication was neither harassing nor intimidating. (p. 23.) more or view all topics or full text. | 44 | 24 | 07/10/19 |
| 2654E | Claremont Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.) An overbroad directive prohibiting an employee from “discussing his working conditions with his coworkers” violates this right, even if the directive allows him to communicate with his union representatives, including those who are also employees. (pp. 21-22.) more or view all topics or full text. | 44 | 24 | 07/10/19 |
| 2611M | County of Orange 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity While work time is for work, and an employer may therefore restrict non-business activities during work time, an employer fails to meet its burden to establish a legitimate business interest where it singles out or enforces a general rule more strictly with respect to union-related activities. (pp. 3-5.) more or view all topics or full text. | 43 | 101 | 12/19/18 |
| 2613M | County of Santa Clara 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Employer failed to meet burden of establishing justification for overbroad directive because it made no attempt to do so, but rather only claimed, without basis, that various external laws prohibited it from attempting to do so. more or view all topics or full text. | 43 | 104 | 12/21/18 |
| 2595E | William S. Hart Union High School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Business justification for questioning a union steward about employees’ complaints about another employee did not outweigh harm to employee rights. Possibility that steward was ignoring those complaints because of personal relationship with the employee would be only weak evidence that the steward and employee were engaged in misconduct, but struck at the heart of matters in which the employer had no legitimate interest: the adequacy of the steward’s representation of bargaining unit members. more or view all topics or full text. | 43 | 74 | 11/09/18 |
| 2556M | County of San Bernardino 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Photographic or video surveillance may be justified as necessary to gather evidence when the employer reasonably believes that union organizers or employers are engaging in misconduct. more or view all topics or full text. | 42 | 114 | 03/06/18 |
| 2556M | County of San Bernardino 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Business necessity defense is not available to employer that engages in surveillance to document violations of an access policy that is itself unlawful. more or view all topics or full text. | 42 | 114 | 03/06/18 |
| 2522H | Trustees of the California State University 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Allegation that employer’s agent told probationary employee she “should not talk to anyone about the investigation” of a fellow employee’s complaint of abusive treatment against supervisor stated prima facie case of interference with protected rights, since, on its face and without further explanation, a directive not to talk to “anyone” could reasonably be construed to prohibit contacting union representatives, or enlisting the support of other employees for the complaint. (p. 22.) To the extent that an employer’s directive or policy of maintaining “confidentiality” of investigations into employee grievances “muzzles” employees who seek to engage in concerted activity for mutual aid or protection by denying them the very information needed to discuss their wages, hours or working conditions, it necessarily harms employee rights. (p. 21.) Once it is established that the employer’s prohibition on discussing wages, hours or working conditions adversely affects protected rights, the burden falls on the employer to demonstrate “legitimate and substantial business justifications” for its conduct. (21-22.) To overcome a presumption of invalidity stemming from a vague or overinclusive rule, the employer must make it clear to employees that the thrust of an inexplicitly-worded confidentiality rule is not to prohibit discussion of their terms and conditions of employment. (Ibid.) more or view all topics or full text. | 41 | 150 | 03/20/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C, where the Board issued a modified decision after the Court of Appeal partially vacated a portion of the original decision. Specifically, the Court of Appeal: (1) found that the court-employer’s need to appear neutral to the public was a special circumstance sufficient to support a ban on wearing insignia in the courthouse; (2) set aside PERB’s decision regarding display of union images and writings; (3) upheld PERB’s unalleged violations doctrine; and (4) upheld PERB’s decision finding a violation in the court’s prohibition against distributing union literature in work areas visible to the public. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C, where the Board issued a modified decision after the Court of Appeal partially vacated a portion of the original decision. Specifically, the Court of Appeal: (1) found that the court-employer’s need to appear neutral to the public was a special circumstance sufficient to support a ban on wearing insignia in the courthouse; (2) set aside PERB’s decision regarding display of union images and writings; (3) upheld PERB’s unalleged violations doctrine; and (4) upheld PERB’s decision finding a violation in the court’s prohibition against distributing union literature in work areas visible to the public. * * *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. (pp. 24-26.) more or view all topics or full text. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C, where the Board issued a modified decision after the Court of Appeal partially vacated a portion of the original decision. Specifically, the Court of Appeal: (1) found that the court-employer’s need to appear neutral to the public was a special circumstance sufficient to support a ban on wearing insignia in the courthouse; (2) set aside PERB’s decision regarding display of union images and writings; (3) upheld PERB’s unalleged violations doctrine; and (4) upheld PERB’s decision finding a violation in the court’s prohibition against distributing union literature in work areas visible to the public. * * *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. | 41 | 140 | 02/27/17 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity 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. | 41 | 140 | 02/27/17 |
| 2536M | City and County of San Francisco 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Once a prima facie case of interference is established, the burden shifts to the employer to articulate a legitimate justification for its conduct. The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm. Where the harm to employees’ rights is slight and the employer offers justification based on operational necessity, the competing interests will be balanced. But where the harm is inherently destructive of employee rights, the employer’s conduct will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available. more or view all topics or full text. | 42 | 14 | 06/30/17 |
| 2453E | Cabrillo Community College District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity If the harm to protected rights is slight and the employer offers justification based on operational necessity, the competing interests are balanced. If the harm to employee rights outweighs the asserted business justification, a violation will be found. Where the employer’s conduct is inherently destructive of protected rights, it will be excused only on proof that it was caused by circumstances beyond the employer’s control and that no alternative course of action was available. more or view all topics or full text. | 40 | 57 | 09/17/15 |
| 2423M | County of San Bernardino (Office of the Public Defender) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity A Public Defender has a legitimate reason to exclude DDAs from investigatory meetings, at least where the Public Defender’s client confidential information or Public Defender work product is likely to be revealed. It may also be justified in preventing such cross-representation where the representing DDA is the opposing counsel to the DPD in a criminal case, or in other situations in which the rules of professional responsibility or rules of court require that the representation be disclosed to the Public Defender’s client, and/or that either attorney would be forced to disqualify himself or herself from further representation in the criminal case. Internal office procedures for documenting attorney work do not fall within the definition of attorney “work product.” Although the Public Defender had no power over whom the Association appointed as stewards or representatives, or over the fact that the Association had not appointed any DPDs as labor representatives, and although the cross-representation ban was occasioned by circumstances beyond the employer’s control, the Public Defender had the alternative of declining to proceed with the interview and continue its investigation by other means, or redacting sensitive information from materials involved in the investigatory interview. A Public Defender may not seek to secure for itself the benefits of an investigatory interview with an employee suspected of wrongdoing by compelling the employee’s attendance at the interview, while it denies the employee and the Association their respective representation rights, including the employee’s right to decline to be interviewed without threat of insubordination. more or view all topics or full text. | 39 | 165 | 05/15/15 |
| 2300H | Regents of the University of California 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The summary manner in which union organizers were ordered to leave their meetings amounted to at least slight harm to both the Union’s right to communicate with employees and to employees’ right to participate in these meetings, thereby triggering the Carlsbad Unified School District (1979) PERB Decision No. 89 test. Under that test, the University simply failed to justify its actions as a legitimate operational necessity. more or view all topics or full text. | 37 | 141 | 12/20/12 |
| 2285S | State of California (Department of Corrections and Rehabilitation) * * * OVERRULED IN PART by by Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * OVERRULED IN PART by Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, where the Board clarified that PERB does not adhere to a “general rule” that investigations into employee misconduct serve a legitimate business purpose. Rather, PERB examines on a case-by-case basis the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in the exercise of protected rights. * * *Issuance of cease and desist order against union steward conducting union investigation into alleged misconduct by a supervisor for a potential grievance was not justified by legitimate business reason related to maintaining integrity of employer’s investigation, where there is no evidence steward’s conduct interfered with, delayed, distorted or unduly influenced employer’s investigation. Legitimacy of employer’s justification for interfering with employee organizational rights is undermined by: inaccurate way in which information was reported up the chain of command and acted upon without verification; employer’s reliance on a policy manual section that does not appear to support action taken; employer’s proffering of a false equivalency between cease and desist orders given to job steward and supervisor under investigation; and inconsistent understanding among witnesses regarding scope and effect of order. In balancing the competing interests of the parties, interference with employee organizational rights outweighs business justification proffered by employer for its conduct. more or view all topics or full text. | 37 | 72 | 09/17/12 |
| 2031M | Coachella Valley Mosquito and Vector Control District * * * OVERRULED IN PART by City of Roseville (2016) PERB Decision No. 2505-M 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity * * * OVERRULED IN PART ON OTHER GROUNDS by City of Roseville (2016) PERB Decision No. 2505-M. * * *Employer coercively threatened employees with layoff in violation of MMBA section 3506 when, after employees filed unit modification petition, employer told employees that there would be layoffs if they went with the union. The Board rejected the employer’s contention that it was merely stating an honest and reasonable projection of future layoffs because of budget deficits, as it did not implement layoffs because of a legitimate budget deficit, but rather to retaliate against the employees. Even taking the budget defense as legitimate, it is not based solely on legal expenses but on the entire budget, and employer did not give employees an honest and reasonable projection of his own view of the possibility of layoffs, but focused only on the detrimental effect of unionization. more or view all topics or full text. | 33 | 92 | 05/29/09 |
| 2030M | Omnitrans 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity When an employer has produced a legitimate business reason for conduct that interferes with employee or union rights, PERB must balance the competing interests to determine whether a violation has occurred. Employer denied union officer further access to an employee assembly room on the ground that his presence was disruptive. Evidence showed that officer’s presence did not interfere with employer’s operations. Nor did the fact that the officer was discussing with employees a topic of concern to management, rest and meal periods, justify the denial because there was no evidence discussion of that subject actually impaired the employer’s operations. more or view all topics or full text. | 33 | 91 | 05/29/09 |
| 1971M | City of Torrance 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity No business necessity defense where employer conduct that interfered with protected rights under MMBA was not required for enforcement of presidential release time MOU. more or view all topics or full text. | 32 | 126 | 08/21/08 |
| 1766M | City of Monterey 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The City’s exclusion of McCormick from the hearing was not justified by either an alleged violation of the Brown Act or the City’s designation of McCormick as a witness. While it is true that the City Code provides for applicability of the Brown Act and the City’s discretion to sequester witnesses, that discretion does not automatically trump MMBA rights. The authority is permissive and such authority may not be exercised in a manner that violates the rights of employees or employee organizations under the MMBA. The plain language of the City’s Code states that formal rules of evidence do not apply to disciplinary hearings so that the City’s citation of Evidence Code section 777 as support for excluding McCormick from the hearing was unpersuasive. The City excluded McCormick while permitting the City’s representative and chief witness to remain in the hearing. The City Council in this matter is not a “neutral decider of cases,” but rather acted as an agent of the City and responsible for the City’s actions. more or view all topics or full text. | 29 | 130 | 05/20/05 |
| 1664M | City and County of San Francisco 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Although Poon stated a prima facie case of interference, the City contended that her involuntary transfer was due to lack of work in her department. Local 790 was advised of this response in the warning letter but did not file an amended charge to dispute this fact and so did not refute the employer’s claim of legitimate business reasons for its action. more or view all topics or full text. | 28 | 231 | 07/27/04 |
| 1725E | Hilmar Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity The District’s uncorroborated hearsay evidence about harm to the District from allowing the Association direct contact with the health plan administrator was not credited. The District consequently did not provide evidence of operational necessity as balance to the harm to employees from precluding the Association from direct contact with the health plan administrator. more or view all topics or full text. | 29 | 35 | 12/15/04 |
| 1026S | State of California (Department of Parks and Recreation) (International Union of Operating Engineers, Craft-Maintenance Division, Units 12 and 13) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Department did not meet its burden demonstrating an operational necessity for the ban on buttons which would justify the harm caused to employee and union rights by the prohibition of union buttons; p. 21, proposed dec. The protected right to wear union buttons is not unlimited and is subject to reasonable regulation. If special circumstances exist, then the employer may be within its rights to limit or prohibit the wearing of buttons by employees; p. 4, proposed dec. Special circumstances justifying a prohibition of union buttons or insignia exist where buttons could jeopardize employee's safety; damaged machinery or products; exacerbate employee dissension; cause distraction from work demanding great concentration; disrupt the uniformity, discipline or appearance of neutrality among para-military law enforcement employees: or damage the image to the public by the uniformity, discipline or appearance of neutrality among para-military law enforcement employees: or damage the image to the public by the more or view all topics or full text. | 18 | 25011 | 11/17/93 |
| 1006E | Gonzales Union High School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity No interference claim as to the elimination of the mentor teacher program as the harm to employees rights was slight when weighed against the District's clear statutory right and its intent in saving money as its motivation to eliminate the program; p. 17, proposed dec. more or view all topics or full text. | 17 | 24119 | 06/25/93 |
| 0543E | San Mateo Community College District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Reliance on Ed. code provision no defense where inapplicable to situation at bar; reliance on contract ineffective where applicable provisions unenforceable. more or view all topics or full text. | 10 | 17015 | 12/13/85 |
| 2485E | Petaluma City Elementary School District/Joint Union High School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity 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. | 41 | 23 | 06/30/16 |
| 0470H | Regents of the University of California (California State Employees Association) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Employer had valid business reasons for the alleged interference and those reasons were not found to be pretextual; pp. 45-50, proposed dec. more or view all topics or full text. | 9 | 16041 | 12/28/84 |
| 0305H | Regents of the University of California (Berkeley) 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Phone call to employee from personnel officer did not unlawfully interfere with employee's right to representation regarding grievance where any harm was slight and was outweighed by employer's legitimate justification for the telephone call; p. 9. more or view all topics or full text. | 7 | 14139 | 04/28/83 |
| 0292E | Rio Hondo Community College District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity As District could have achieved same result by enforcing its existing policy, change in leave policy cannot be found to be reasonably necessary to avert a serious threat of interruption of educational services and is not justified by business necessity; p. 18. more or view all topics or full text. | 7 | 14091 | 03/08/83 |
| 0251E | Coast Community College District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity Employer's proffered explanation for its actions was reasonable and legitimate and outweighed the harm done to employee rights; thus no interference violation. more or view all topics or full text. | 6 | 13237 | 10/15/82 |
| 0210E | Novato Unified School District 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer employee; p. 21. more or view all topics or full text. | 6 | 13114 | 04/30/82 |