All notes for Subtopic 409.06000 – Free Speech
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2856M | Alameda Health System 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech The MMBA gives employers the right to express even unflattering views on a union’s actions so long as the statements did not include any threats of reprisal or promises of benefit. (See City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26.) That some employees felt a Board of Trustees member belittled protected activities by labeling them as “political theater” did not convert that phrase into a threat or promise. But his direct statement that protected activity is “not acceptable [in] a time of crisis” sent a different message, one that was not confined to opinion. An employee could reasonably infer that he or she would be punished for engaging in the types of actions which the Board of Trustees member labeled “not acceptable.” That is because a reasonable employee would understand “not acceptable” to mean disallowed or prohibited. While the Board of Trustees member did not state explicitly that employees would be punished, his use of the phrase “not acceptable” was sufficiently coercive to fall outside the safe harbor for free speech. (pp. 35-36.) more or view all topics or full text. | 47 | 144 | 03/23/23 |
| 2856M | Alameda Health System 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech In an interference case involving employer speech, the surrounding circumstances are relevant to determine if an employee or union representative would objectively tend to feel that the communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer does not commit an interference violation if it expresses or disseminates its views, arguments, or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. This safe harbor for employer speech does not apply, however, “to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.” The Board examines the context of employer statements to determine whether they convey a threat of reprisal or force, promise of benefit, or demonstrate a preference for either one organization over another, or one group or another within a single organization. In cases involving employer speech, PERB considers the accuracy of the communication in conjunction with the employer’s need to communicate in deciding whether the employer can establish an affirmative defense. (pp. 31-32.) more or view all topics or full text. | 47 | 144 | 03/23/23 |
| 2747M | City of San Diego 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech In evaluating whether employer speech constitutes interference with protected rights, “the Board will look to the surrounding circumstances in which employer speech occurs, including the employer’s power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another.” (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.) E-mail from manager to unit member fell outside the range of permissible employer speech in two respects. First, it was coercive in that it suggested that employees may lose desirable assignments due to protected activity. Next, management e-mail suggested that employee might avoid adverse action and/or obtain preferential treatment for opposing union leadership. It is of no consequence whether unit member shared manager’s e-mails with any other employees or Union representatives. Manager’s coercion was unlawful even if no one other than unit member receiving e-mail knew of it. (See, e.g., Claremont Unified School District (2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision No. 834, p. 13 [a brief statement made only to one person is sufficient to support an interference claim].) Furthermore, employer’s e-mail also tended to interfere with others’ protected conduct given the possibility that unit member might forward it to other employees or share the message contained in the e-mail. more or view all topics or full text. | 45 | 45 | 10/06/20 |
| 2660S | State of California (Office of the Inspector General) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech An employer’s expression of any views, argument, or opinion generally does not constitute or serve as evidence of an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit. This protection extends to an employer’s interpretation of the law provided that it is not such a misrepresentation of the law so as to constitute an illegal threat. (p. 34.) more or view all topics or full text. | 44 | 48 | 08/15/19 |
| 2648M | City of Arcadia 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech No violation found where manager, having been told by multiple people that Association attorney called him a liar, told a group of Association members that he had not lied and backed up his contention with a brief discussion of the timeline of events. more or view all topics or full text. | 44 | 1 | 06/12/19 |
| 2387M | City of Oakland 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech To fully effectuate the MMBA’s purpose of “promot[ing] full communication between pubic employers and their employees” the employer should be free to speak its mind, without incurring liability for every impulsive act or intemperate remark by one of its managers or representatives. Generally, an employer’s expression or disseminate of views, arguments or opinions shall not constitute, or be evidence of an unfair labor practice unless such expression contains a threat of reprisal, force, or promise of benefit or expresses a preference for one employee organization over another employee organization. more or view all topics or full text. | 39 | 23 | 08/04/14 |
| 2119M | County of Riverside 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech County supervisors’ statements during public meeting that County would consider elimination of temporary employee program if union efforts to organize temporary employees continued was not protected free speech because supervisors’ predictions of increased cost of program were not based on objective fact and cost was within County’s control. more or view all topics or full text. | 34 | 108 | 06/24/10 |
| 2024S | State of California (Department of Corrections and Rehabilitation) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech An employer may communicate with its employees about labor relations matters provided the communication does not contain a promise of benefit or a threat of reprisal or force. The Board uses an objective standard when assessing employer communication and considers the overall context to determine if the statements have a coercive meaning. more or view all topics or full text. | 33 | 86 | 05/13/09 |
| 1341E | Oxnard Unified School District and Oxnard Federation of Teachers and California School Employees Association 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech An employer has the right to express its views on employment related matters over which it has legitimate concerns in order to facilitate full and knowledgeable debate. However, the right of employer speech is not unlimited, and speech which contains a threat of reprisal or force or promise of benefit will be perceived as a means of violating the Act and will, therefore, lose its protection. In the instant case, repeated statements by a supervisor to his subordinates that they would be better off with one competing organization rather than another were clearly improper. However, in light of the small number of employees to whom the statements were addressed, and the fact that two of those employees were activists of the disparaged competing organization throughout the campaign, the Board determined that the probable impact of supervisor's statements was minimal and insufficient to warrant setting aside the election. more or view all topics or full text. | 23 | 30145 | 08/03/99 |
| 1355S | California State Employees Association (Hutchinson) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Statements of intentions to pursue legal remedies is protected speech and do not constitute an illegal threat; p. 6, warning letter. more or view all topics or full text. | 23 | 30177 | 10/07/99 |
| 1286E | Oak Park Unified School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech No EERA violation when District distributed flyers to bargaining unit employees which stated that "the District started this process based upon the principles of Interest Based Bargaining" and that the District's flyer is "the most accurate characterization of [the Association's] actions," because PERB generally permits employers to communicate directly with employees, so long as the communication contains neither threat of reprisal or force, nor promise of benefit. During negotiations, an employer is obligated to present factually accurate information and may not engage in conduct to derogate the exclusive representative's authority; p. 4, warning letter; citations. more or view all topics or full text. | 22 | 29161 | 09/24/98 |
| 1264E | Ventura County Community College District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Once an exclusive representative is selected, the employer must refrain from bargaining directly with bargaining unit employees. However the employer does have a free speech right. An employer's speech does not generally violate the EERA, unless the speech contains a threat of reprisal or promise of benefit; p. 5, warning letter. more or view all topics or full text. | 22 | 29091 | 05/12/98 |
| 1263H | Regents of the University of California (University Professional and Technical Employees) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Cases construing the employer's right of free speech establish that a statement containing a threat of reprisal loses its protection, and will be found unlawful if the employer shows no overriding operational necessity justifying it; p. 44. more or view all topics or full text. | 22 | 29090 | 04/28/98 |
| 1188H | Regents of the University of California (University Professional and Technical Employees) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech PERB applies an objective standard to determine if an employer's speech contains a threat or promise of benefit, view the employer's statement in light of the surrounding circumstances and places considerable weight on the accuracy of the speech; p. 23. When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's statement that if employee's elected an exclusive representative their pay increase would be subject to bargaining described consequences of a union victory that did not flow naturally from the collective bargaining relationship and were totally within the employer's control. Therefore, the speech contained a threat of reprisal and lost its free speech protection; p. 26. Employer's good faith understanding of its bargaining obligation is irrelevant. Employer's good faith understanding of its bargaining obligation is irrelevant. more or view all topics or full text. | 21 | 28067 | 03/19/97 |
| 1179S | State of California (Department of Personnel Administration) (California Union of Safety Employees) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech PERB views employer statements in their overall context to determine if they have a coercive meaning; p. 4, warning letter. PERB considers accuracy, but even if the statements are false or misleading, they do not constitute unlawful communication if they do not contain a threat or promise of benefit; p. 4, warning letter. The employer may not solicit employees to withdraw from union membership, but may bring to employees' attention their right to resign if the communication is free of threat and coercion or promise of benefit; p. 4, warning letter. Employer's statement of opinion regarding the reasons for lack of progress in negotiations although possibly incomplete and/or misleading does not constitute prima facie evidence of bad faith bargaining as long as the communication is not threatening and coercive; p. 5, p. 6, warning letter. bargaining as long as the communication is not threatening and coercive; p. 5, p. 6, warning letter. more or view all topics or full text. | 21 | 28017 | 12/04/96 |
| 1176S | State of California (Department of Transportation) (International Union of Operating Engineers) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer memos conveying information to employees concerning the right to resign from union membership simply communicate that the right exists and do not advocate a course of action are permitted under employer free speech and are not interference; p. 3, warning letter. The employer memos do not establish that the State solicited employees to withdraw from membership, only that the State informed employees of their right to do so; p. 3, warning letter. more or view all topics or full text. | 21 | 28016 | 11/18/96 |
| 1144S | State of California (Department of Food and Agriculture) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer's statements that contract had expired and employees could save $26.00 per month by dropping out of union and allowing union members use of its offices to fill out payroll papers to withdraw from union does not constitute offer of a "benefit" and is covered by free speech; p. 1, dismissal letter. more or view all topics or full text. | 20 | 27059 | 03/04/96 |
| 0841E | Temple City Unified School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Portions of written communications by the District to the employees were threatening and coercive where the District stated that negotiations on financial matters could not continue and no financial commitments could be made until all grievances were resolved. District's statement of intention to call in professional negotiators not a threat. Employer does not violate EERA merely by being critical of a union or making unfavorable comparisons with exclusive representatives for other units. more or view all topics or full text. | 14 | 21186 | 09/20/90 |
| 0834E | Chula Vista City School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Statements by school administrators regarding the progress of negotiations, including some statements which could be construed as putting the blame for salary situation on the association, were not threats of force or promise of benefit and therefore constituted protected free speech. Case contains thorough analysis of employer free speech defense; pp. 5-14. more or view all topics or full text. | 14 | 21162 | 08/16/90 |
| 0777H | California State University (California State Employees Association) 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer newsletter, published during negotiations, violated HEERA by announcing that as a result of the State budget employees would receive a 4 percent pay increase for non-faculty staff, effective January 1, 1988. Negotiations were not yet completed and the statements had the effect of undercutting the bargaining relationship envisioned under the Act. Comment constituted unlawful interference and was not protected under section 3571.3. more or view all topics or full text. | 14 | 21003 | 11/21/89 |
| 0560E | Alhambra City and High School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Accurate communication to employees concerning negotiations, where there is no evidence of threat or coercion, nor of intent to bypass or undermine union, is lawful. more or view all topics or full text. | 10 | 17046 | 01/08/86 |
| 0533E | Office of Kern County Superintendent of Schools 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer went beyond free speech when it predicted what would happen if collective bargaining agreement was negotiated, including loss of certain benefits. more or view all topics or full text. | 9 | 16237 | 06/09/85 |
| 0366H | Regents of the University of California 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech If challenged speech by an employer contains no threat of reprisal or force or promise of benefit, then it constitutes speech protected by 3571.3. In this case, speech found protected; p. 11. more or view all topics or full text. | 8 | 15007 | 12/16/83 |
| 0317E | San Francisco Unified School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer's right of free speech allows speech which does not contain threat of reprisal or force or promise of benefit and is relevant to matters of legitimate employer concern. more or view all topics or full text. | 7 | 14172 | 06/08/83 |
| 0259E | Sacramento City Unified School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Statement that a union is weak and a waste of money contains no threat of reprisal; p. 4. Supervisor's expression of personal opinion on strike contains no threat of reprisal; p. 5. more or view all topics or full text. | 7 | 14005 | 11/18/82 |
| 0985E | Covina-Valley Unified School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Employer has the right to free speech, unless determined by an objective standard that the employer's speech contains a threat of reprisal or force or a promise of benefit. (Chula Vista City School District (1990) PERB Decision No. 834.); p. 4, warning letter. At a staff meeting with teachers, in a flyer sent to teachers, and conversation with a fairly new teacher, an employer's comments were insufficient to show from which it could be objectively determined that District's conduct contained a threat of reprisal or force or a promise of benefit; p. 4, warning letter. more or view all topics or full text. | 17 | 24067 | 03/26/93 |
| 0128E | Rio Hondo Community College District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Even though EERA contains no free speech language, Board holds that a public school employer is entitled "to express its views on employment related matters over which it has legitimate concerns;" the Board will balance propriety of speech with impact on employee who may be susceptable to coercion or intimidation. Letters about including part-time faculty in Faculty Association covered by free speech; pp. 18-25. Employer speech which contains a threat of reprisal or force of promise of benefit will lose protection and constitute strong evidence of unlawful conduct; p. 20. more or view all topics or full text. | 4 | 11089 | 05/19/80 |
| 0097E | Antelope Valley Community College District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Board declines to reach issue of constitutional protection for speech of public employer but holds that employer cannot use speech to violate 3543.5; p. 21. more or view all topics or full text. | 3 | 10098 | 07/18/79 |
| 0070E | Chula Vista City School District 409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech Non-exclusive rep.'s presentation to school board created no danger to rights of exclusive rep. that would justify curtailing non-exclusive rep.'s free speech rights; p. 3; pp. 7-11, proposed dec. more or view all topics or full text. | 2 | 2186 | 09/18/78 |