All notes for Subtopic 410.01000 – In General; Standards

DecisionDescriptionPERC Vol.PERC IndexDate
2905M Consolidated Irrigation District
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
The test for whether conduct or communication deters or discourages employees in making the choices enumerated in section 3550 is objective. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 24.) It is the charging party’s burden to show that the conduct or communication tends to influence employee free choice, not that the conduct actually did influence employee choice. (Ibid.) PERB will look first to the conduct or communication itself in determining whether it tends to influence employee free choice. (Ibid.) But context matters in even the objective assessment. (Ibid.) Therefore, we also will examine the context surrounding the conduct or communication when determining whether such conduct is reasonably likely to deter or discourage employee choices on union matters. (Ibid.) Because OE3 did not establish agency, its claim that the District deterred or discourages public employees or applicants to be public employees from becoming or remaining members of OE3, from authorizing representation by OE3, or from authorizing due or fee deductions to OE3, was dismissed. (pp. 27-28.) more or view all topics or full text.
06/24/24
2835H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Section 3550 provides that a “public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.” The Board interprets “deter or discourage” as to tend to influence an employee’s free choice regarding whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues or fees. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 21 (Regents).) The test for whether an employer’s communication “tends to influence” is objective. (Id. at p. 24.) The charging party has the burden to show that the communication tends to influence, not that it actually did influence free choice. (Ibid.) We will first examine the content of the communication itself to determine whether it tends to influence employee free choice, and then consider the communication’s context. (Id. at pp. 24-25.) Preliminarily, however, “where a charging party meets its burden to prove an employer violated section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550.” (Id. at p. 37.)In light of the Board’s conclusion that the University violated section 3553, subdivision (b), it found that the University presumptively violated section 3550 by unilaterally disseminating the FAQs, and that it did not rebut that presumption by establishing the FAQs fell into the “narrow” category of communications that may concern employee rights to choose whether or not to join or support an employee organization but yet not tend to influence employee decisions on those topics. (pp. 20-21.) more or view all topics or full text.
476910/07/22
I063E Clovis Unified School District
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
To establish a prima facie case of a section 3550 violation, the charging party need only show that the challenged conduct or communication is reasonably likely to deter or discourage employee free choice, not that the conduct actually did deter or discourage employees. In cases that involve union organizing, section 3550 leaves it to employees on opposite sides of the organizing debate to lobby their colleagues without the employer’s involvement, except where a business necessity compels the employer to take some action that may also incidentally influence employee free choice. (p. 30.) more or view all topics or full text.
469312/16/21
I063E Clovis Unified School District
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PEDD section 3550 provides that a public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization. Deter or discourage means to tend to influence an employee’s free choice regarding whether or not to (1) authorize union representation, (2) become or remain a union member, or (3) commence or continue paying union dues or fees. (p. 30.) more or view all topics or full text.
469312/16/21
2795E * * * JUDICIAL APPEAL PENDING * * * Alliance Marc & Eva Stern Math & Science High School et al.
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Rather than leaving it to anti-union employees to campaign against unionization as PEDD contemplates, the charter schools repeatedly and broadly circulated their own arguments against unionization. Thus, the Board found that based on both content and context, the e-mails tended to influence whether or not employees supported the union, thereby establishing a prima face case. (p. 69.) more or view all topics or full text.
468211/03/21
2795E * * * JUDICIAL APPEAL PENDING * * * Alliance Marc & Eva Stern Math & Science High School et al.
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PEDD bars all employer communications and conduct tending to influence certain employee decisions—including the decision whether to unionize—unless the employer narrowly tailors its conduct to a business necessity while minimizing the tendency to influence employee free choice as much as possible. The protection is more robust than the pre-existing protection against employer interference, as it prohibits most employer influence even if the employer refrains from threatening reprisals or force, or from promising a benefit. (p. 53.) more or view all topics or full text.
468211/03/21
2756H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
By its plain language, PEDD section 3550 applies broadly to employer conduct toward “public employees or applicants.” The statute restricts an employer’s influence over employee decisions whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees “irrespective of whether employees are exclusively represented by a union.” (Regents, supra, PERB Decision No. 2755-H, p. 39.) Indeed, employee decisions whether or not to authorize representation occur frequently when employees are unrepresented. Although Regents of the University of California (2021) PERB Decision No. 2755-H involved communications to represented employees, the plain language of the statute suggests no reason a different test would necessarily apply where, as here, the employer’s conduct or communication is directed toward unrepresented employees. (p. 8.) more or view all topics or full text.
458203/01/21
2756H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Where a charging party shows employer conduct tended to influence employee decisions about whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees, the burden then shifts to the employer to plead and prove a business necessity as an affirmative defense. (p. 7.) more or view all topics or full text.
458203/01/21
2755H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
Where a charging party meets its burden to prove an employer violated PEDD section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550. A section 3553 violation shifts the burden to the employer to prove the mass communication does not tend to influence employee free choice. (p. 37.) more or view all topics or full text.
458103/01/21
2755H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PEDD section 3550 is not subject to the free speech safe harbor limitations of HEERA section 3571.3 because it does not duplicate the interference standard. (p. 28.) By the plain language of the statutes, section 3550 is not limited by section 3571.3. (p. 29.) Because the PEDD is in its own chapter separate from HEERA, section 3571.3 by its plain terms does not apply to conduct subject to section 3550. (p.30.) This interpretation is also supported by the overall statutory framework, precedent, legislative history, and longstanding labor law principles. more or view all topics or full text.
458103/01/21
2755H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
PERB treats PEDD section 3550 even-handedly as prohibiting public employer conduct which tends to influence employee choices as to whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues. (p. 25.) more or view all topics or full text.
458103/01/21
2755H Regents of the University of California
410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards
“Deter or discourage” in the context of PEDD section 3550 means to tend to influence an employee’s free choice regarding whether or not to (1) authorize union representation, (2) become or remain a union member, or (3) commence or continue paying union dues or fees. (p. 21.) PERB looks first to the conduct or communication itself in determining whether it tends to influence employee free choice. But the Board also will examine the context surrounding the conduct or communication when determining whether such conduct is reasonably likely to deter or discourage employee choices on union matters. (p. 24.) more or view all topics or full text.
458103/01/21