All notes for Subtopic 410.02000 – Defenses

DecisionDescriptionPERC Vol.PERC IndexDate
2756H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
To the extent the University alleges that its posting was necessary to respond to Teamsters’ flyer, we consider that an affirmative defense. The University raised such a defense in its response to the charge, but sufficient material factual disputes exist to warrant a hearing on the merits. A hearing will give the parties the opportunity to present evidence of the context in which the University’s communication was made and received, an important consideration in determining a PEDD section 3550 violation. The formal hearing process is the appropriate venue for the Union to prove its case, and the Employer to present its affirmative defense, viz. to demonstrate that its asserted business necessity outweighs the tendency of its communication to influence employee free choice. (p. 9.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
A variety of contextual factors may be relevant in assessing an employer’s asserted business justification for conduct which otherwise deters or discourages employee free choice, and will depend on the evidence and circumstances of each particular case. For example, truthfulness, whether an employer is responding to a misleading union communication, and employer motive, as well as the mode, frequency, and/or timing of a communication, may all be relevant considerations. (pp. 36-37.) more or view all topics or full text.
03/01/21
2755H Regents of the University of California
410.2000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
The Board applies a balancing test where an employer raises a legitimate business necessity for conduct which deters or discourages employees from authorizing union representation, choosing to become or remain a union member, or commencing or continuing to pay union dues or fees. Where a charging party shows employer conduct tended to influence employee decisions on one of these topics, the burden shifts to the employer. The degree of likely influence dictates the employer’s burden. If the likely influence is “inherently destructive” of employee free choice, then the employer must show that the deterring or discouraging conduct was caused by circumstances beyond its control and that no alternative course of action was available. For conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity and PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. Within the category of conduct or communications that are not inherently destructive of section 3550’s protections, the stronger the likelihood to influence employee free choice, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its conduct or communication to attain that purpose while limiting influence on employee free choice to the extent possible. If the likelihood of influence outweighs the asserted business necessity, PERB will find a violation. (pp. 35-36.) more or view all topics or full text.
03/01/21