All notes for Subtopic 410.02000 – Defenses

DecisionDescriptionPERC Vol.PERC IndexDate
2835H Regents of the University of California
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
An employer may attempt to establish a business necessity defense based on an alleged need to correct a union’s inaccurate communication. (See, e.g., Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, pp. 52-75; Regents of the University of California (2021) PERB Decision No. 2756-H, p. 9.) The University did not claim that Teamsters’ communication was inaccurate such that it necessitated a corrective response from the University. Thus, the fact that the University sent its communication in response to Teamsters’ earlier communication does not establish a business necessity defense. (p. 25.) more or view all topics or full text.
476910/07/22
2835H Regents of the University of California
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
Once a charging party establishes a prima facie section 3550 violation, the burden shifts to the employer to prove a business necessity defense. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 35.) The University asserts that it had a legitimate business purpose for sending the FAQs, namely the Administrative Officer IIs’ (AO2) accretion and “a sudden influx of questions” that were “largely prompted by the Teamsters[’] own communication that it sent on October 16, 2020.” The Board found that the University failed to establish a business necessity defense for circulating its FAQs to employees. Even assuming the University had a business necessity to communicate with its employees about the accretion prior to completing meeting and conferring with Teamsters, it could have sent the statement that the University drafted and Teamsters approved on October 16, which provided the most pertinent information about the accretion: that the AO2s had been accreted into the Clerical and Allied Services Bargaining Unit and that bargaining between Teamsters and the University would begin soon. Not only could that statement be lawfully distributed under section 3553, but it did not have the same tendency to deter or discourage employee choice because it was not drafted in the prejudicial manner of the FAQs.Furthermore, the University did not prove any urgency to respond to an allegedly high volume of employee inquiries about the accretion. The University’s evidence in support of its business necessity defense consisted of just three employee e-mails. Two employees inquired—after the University sent the FAQs—about whether they were properly classified as AO2s. The third employee asked simply, “Do you know anything about this?” in reference to Teamsters’ welcome e-mail. None of the employees’ questions were about becoming a Teamsters member or paying dues. Moreover, the University’s statement that it “knew there would be questions about joining the union and union dues” belies its own claim that it sent its communication in response to an “influx” of employee queries. The University did not establish that it narrowly tailored its communication to address employees’ actual inquiries about the accretion. (pp. 24-25.) more or view all topics or full text.
476910/07/22
2795E * * * JUDICIAL APPEAL PENDING * * * Alliance Marc & Eva Stern Math & Science High School et al.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
The Board found that earlier unfair practices by other charter schools affiliated with the charter management organization, which were committed in response to the union’s organizing efforts, including interfering with protected rights by calling law enforcement to stop union handbilling and by directing an employee and a union organizer to leave school premises, interfering with the union’s rights by failing to respond to its request to meet and discuss a fair and neutral organizing process, and denying union organizers access to a school campus and threatening a teacher because of her protected activity on behalf of the union, further undercut the charter schools’ affirmative defense. While the Board would still reach the same outcome if these unfair practices had not occurred, they are additional relevant evidence regarding motive, further suggesting that the charter schools sent the e-mails not because of any legitimate business necessity but as part of their ongoing efforts to squelch the union’s organizing campaign. (pp. 73-74.) 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.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
The content of the e-mails was not narrowly tailored to protect the charter schools’ charters. Rather than discussing only the union’s alleged support for anti-charter legislation and candidates, the e-mails also discussed at length subjects unrelated to the schools’ charters, such as potential impacts of unionization on wages, benefits, and working conditions, as well as administrators’ own personal experience with unions in other school districts. Thus, the Board found that the charter schools’ purported business necessity would not justify most of the statements in the e-mails sent to the charter school employees. (pp. 72-73.) 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.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
The charter schools claimed that the e-mails were necessary to “defend the existence of a legally-constituted charter school” by addressing “the potentially destabilizing influence of [the union]’s attacks” on charter schools. But the e-mails’ timing and content show the charter schools did not narrowly tailor the communications to protect their business from anti-charter political campaigns while influencing employee free choice as little as possible. The union’s purported long history of anti-charter conduct would have posed a potential threat to the charter schools well before the union began organizing the charter school employees. Yet the charter schools did not begin communicating with employees about this alleged threat until after the union began its organizing campaign. The timing of these communications suggests it was the union’s organizing campaign, not its alleged hostility to charter schools, that prompted the charter schools to send the e-mails at issue. (pp. 71-72.) 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.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
As for the defense that the charter management organization was countering the union’s untruthful communications to employees, the charter schools provided scant evidence to support this defense. An employer’s communication may be justified by the need to accurately counter a union’s misleading communication. But none of the union’s communications to the charter schools’ employees are in the record. The Board could not determine whether those communications were misleading or whether the charter schools’ e-mails were necessary to provide accurate information to employees. The Board found that the charter schools’ failure to call even a single witness makes it all but impossible to conclude that its e-mails were in furtherance of, and narrowly tailored to, one or more business necessities. (p. 72.) 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.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
As for the defense that the charter management organization was responding to employees’ complaints about the union’s aggressive organizing campaign, the charter schools provided scant evidence that employees complained to school management about the union’s organizing tactics. The only such evidence is a statement in the charter management organization’s March 22 e-mail that it had “received complaints from many of you” about the union’s visits to employee’s homes, and statements by a principal that some employees lodged complaints about the union’s “bullying during organizing.” These hearsay reports of complaints being made to management are insufficient to support a finding that such complaints were made. Even if there were actual complaints, the vague descriptions of the complaints in these two e-mails provide insufficient foundation or detail to assess what steps such complaints could have necessitated. The Board found that the charter schools did not establish that their e-mails were narrowly tailored to address the purported employee complaints, especially considering that, in addition to informing employees of their rights regarding union solicitation, the e-mails expressed the charter schools’ opinion that the union’s solicitation conduct was coercive and deceitful. (pp. 71-72.) 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.
410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses
When the employer asserts a business necessity defense, PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. 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. Absent evidence sufficient to establish an affirmative defense, section 3550 leaves it to employees on each side of a unionization debate to marshal their arguments. Thus, in the critical debate over whether charter schools’ employees should authorize the union to become their exclusive representative, including but not limited to the question whether the union’s stance on charter schools makes it a poor fit for representing employees, the Board must consider whether the charter schools have established a business necessity showing that they cannot leave it to employees to be the ones to argue against unionization. (pp. 70-71.) more or view all topics or full text.
468211/03/21
2756H Regents of the University of California
410.02000: 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.
458203/01/21
2755H Regents of the University of California
410.02000: 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.
458103/01/21
2755H Regents of the University of California
410.02000: 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.
458103/01/21