All notes for Subtopic 409.08000 – Special Circumstances
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 3003H |
Regents of the University of California (Los Angeles)
409.08000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Special Circumstances
An employer must prove special circumstances to justify restrictions on protected recording activity. (pp. 31-32.) more or view all topics or full text. |
02/09/26 | ||
| 2926S |
State of California (Department of Corrections and Rehabilitation)
409.08000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Special Circumstances
Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.)
Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.) more or view all topics or full text. |
49 | 80 | 10/22/24 |