Decision 2517C – Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C

SA-CE-14-C

Decision Date: February 27, 2017

Decision Type: PERB Decision

 * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C * * *

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Perc Vol: 41
Perc Index: 140

Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.05000 – Precedential Authority of PERB Decisions

As part of its de novo review, the Board itself may address matters not excepted to correct an error or prevent a serious mistake of law from becoming part of Board precedent. Although neither party had excepted, the proposed decision contained a typographical error whose effect was to suggest that an employer may restrict employees from solicitation during nonworking time, which is contrary to Board precedent. The Board corrected the editing oversight to avoid confusion regarding Board precedent. (p. 3, fn. 5.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

As part of its de novo review, the Board itself may address matters not excepted to correct an error or prevent a serious mistake of law from becoming part of Board precedent. Although neither party had excepted, the proposed decision contained a typographical error whose effect was to suggest that an employer may restrict employees from solicitation during nonworking time, which is contrary to Board precedent. The Board corrected the editing oversight to avoid confusion regarding Board precedent. (p. 3, fn. 5.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.18000 – Review of Findings Not Excepted To

As part of its de novo review, the Board itself may address matters not excepted to correct an error or prevent a serious mistake of law from becoming part of Board precedent. Although neither party had excepted, the proposed decision contained a typographical error whose effect was to suggest that an employer may restrict employees from solicitation during nonworking time, which is contrary to Board precedent. The Board corrected the editing oversight to avoid confusion regarding Board precedent. (p. 3, fn. 5.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

The Legislature directed that complaints alleging any violation of the Trial Court Act or of any local rules and regulations adopted by a trial court be investigated as an unfair practice charge and that PERB apply and interpret unfair labor practices consistent with existing judicial interpretations of the Meyers-Milias-Brown Act (MMBA), where the language of the two statutes are the same or substantially similar. In light of this legislative delegation of authority, PERB concluded that its adjudication of unfair practice allegations under the Trial Court Act does not violate the constitutional separation of powers doctrine nor invade the province of Superior Court judges to control their courtrooms. (p. 9.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

The Legislature directed that complaints alleging any violation of the Trial Court Act or of any local rules and regulations adopted by a trial court be investigated as an unfair practice charge and that PERB apply and interpret unfair labor practices consistent with existing judicial interpretations of the Meyers-Milias-Brown Act (MMBA), where the language of the two statutes are the same or substantially similar. In light of this legislative delegation of authority, PERB concluded that its adjudication of unfair practice allegations under the Trial Court Act does not violate the constitutional separation of powers doctrine nor invade the province of Superior Court judges to control their courtrooms. (p. 9.)

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

The Legislature directed that complaints alleging any violation of the Trial Court Act or of any local rules and regulations adopted by a trial court be investigated as an unfair practice charge and that PERB apply and interpret unfair labor practices consistent with existing judicial interpretations of the Meyers-Milias-Brown Act (MMBA), where the language of the two statutes are the same or substantially similar. In light of this legislative delegation of authority, PERB concluded that its adjudication of unfair practice allegations under the Trial Court Act does not violate the constitutional separation of powers doctrine nor invade the province of Superior Court judges to control their courtrooms. (p. 9.)

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

The Legislature directed that complaints alleging any violation of the Trial Court Act or of any local rules and regulations adopted by a trial court be investigated as an unfair practice charge and that PERB apply and interpret unfair labor practices consistent with existing judicial interpretations of the Meyers-Milias-Brown Act (MMBA), where the language of the two statutes are the same or substantially similar. In light of this legislative delegation of authority, PERB concluded that its adjudication of unfair practice allegations under the Trial Court Act does not violate the constitutional separation of powers doctrine nor invade the province of Superior Court judges to control their courtrooms. (p. 9.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.04000 – Amendments

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Although the charging party’s motion to amend the complaint to add a separate interference allegation was rejected as untimely because it was made after the close of the evidentiary record, the Board considered the substance of the amendment as an unalleged violation, after determining that each of the requirements of PERB’s unalleged violations test was met. (pp. 13-24.) Under PERB’s unalleged violations doctrine, the Board may consider allegations not included in the charge or complaint when: (1) the respondent has had adequate notice and opportunity to defend against the unalleged matter; (2) the unalleged conduct is intimately related to the subject matter of the complaint and is part of the same course of conduct; (3) the matter has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on the issue; and (5) the unalleged conduct occurred within the same limitations period as those matters alleged in the complaint. The evidence justifying application of the unalleged violations doctrine should be expressly stated, so that all parties are aware of the basis for finding that an unalleged violation can be heard without unfairness. (p. 13.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Although the charging party’s motion to amend the complaint to add a separate interference allegation was rejected as untimely because it was made after the close of the evidentiary record, the Board considered the substance of the amendment as an unalleged violation, after determining that each of the requirements of PERB’s unalleged violations test was met. (pp. 13-24.) Under PERB’s unalleged violations doctrine, the Board may consider allegations not included in the charge or complaint when: (1) the respondent has had adequate notice and opportunity to defend against the unalleged matter; (2) the unalleged conduct is intimately related to the subject matter of the complaint and is part of the same course of conduct; (3) the matter has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on the issue; and (5) the unalleged conduct occurred within the same limitations period as those matters alleged in the complaint. The evidence justifying application of the unalleged violations doctrine should be expressly stated, so that all parties are aware of the basis for finding that an unalleged violation can be heard without unfairness. (p. 13.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Although the charging party’s motion to amend the complaint to add a separate interference allegation was rejected as untimely because it was made after the close of the evidentiary record, the Board considered the substance of the amendment as an unalleged violation, after determining that each of the requirements of PERB’s unalleged violations test was met. (pp. 13-24.) Under PERB’s unalleged violations doctrine, the Board may consider allegations not included in the charge or complaint when: (1) the respondent has had adequate notice and opportunity to defend against the unalleged matter; (2) the unalleged conduct is intimately related to the subject matter of the complaint and is part of the same course of conduct; (3) the matter has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on the issue; and (5) the unalleged conduct occurred within the same limitations period as those matters alleged in the complaint. The evidence justifying application of the unalleged violations doctrine should be expressly stated, so that all parties are aware of the basis for finding that an unalleged violation can be heard without unfairness. (p. 13.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Because the charging party referenced the substance of the unalleged violation in its statement, and argued the issue in its brief before the ALJ, the Board determined that the respondent had adequate notice of the issue for purposes of the unalleged violations doctrine. (pp. 14-15.) The notice requirement for PERB’s unalleged violations doctrine may be satisfied by a number of circumstances, including when the charging party identifies the issue in its opening statement and argues the issue in its post-hearing briefing. So long as a respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, it cannot complain of a variance between administrative pleadings and proof. (p. 14.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Because the charging party referenced the substance of the unalleged violation in its statement, and argued the issue in its brief before the ALJ, the Board determined that the respondent had adequate notice of the issue for purposes of the unalleged violations doctrine. (pp. 14-15.) The notice requirement for PERB’s unalleged violations doctrine may be satisfied by a number of circumstances, including when the charging party identifies the issue in its opening statement and argues the issue in its post-hearing briefing. So long as a respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, it cannot complain of a variance between administrative pleadings and proof. (p. 14.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Because the charging party referenced the substance of the unalleged violation in its statement, and argued the issue in its brief before the ALJ, the Board determined that the respondent had adequate notice of the issue for purposes of the unalleged violations doctrine. (pp. 14-15.) The notice requirement for PERB’s unalleged violations doctrine may be satisfied by a number of circumstances, including when the charging party identifies the issue in its opening statement and argues the issue in its post-hearing briefing. So long as a respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, it cannot complain of a variance between administrative pleadings and proof. (p. 14.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

The Board found that the unalleged conduct was intimately related to the subject matter of the complaint and was part of the same course of conduct because it arose from the same rules of conduct adopted by the Court that were the subject of the complaint. (pp. 15-16.) Even though they may involve different theories of liability, for purposes of the unalleged violations doctrine, unalleged matters are intimately related to matters included in the charge or complaint when they stem from the same incident or course of conduct. (p. 15.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

The Board found that the unalleged conduct was intimately related to the subject matter of the complaint and was part of the same course of conduct because it arose from the same rules of conduct adopted by the Court that were the subject of the complaint. (pp. 15-16.) Even though they may involve different theories of liability, for purposes of the unalleged violations doctrine, unalleged matters are intimately related to matters included in the charge or complaint when they stem from the same incident or course of conduct. (p. 15.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

The Board found that the unalleged conduct was intimately related to the subject matter of the complaint and was part of the same course of conduct because it arose from the same rules of conduct adopted by the Court that were the subject of the complaint. (pp. 15-16.) Even though they may involve different theories of liability, for purposes of the unalleged violations doctrine, unalleged matters are intimately related to matters included in the charge or complaint when they stem from the same incident or course of conduct. (p. 15.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Because the record include exhibits and extensive testimony from both parties’ witnesses on the Court’s prohibition against distributing literature “at any time for any purpose in working areas,” the Board found that the issue was fully litigated for purposes of the unalleged violations doctrine. (pp. 16-20.) For the purpose of the unalleged violations doctrine, a matter has been fully litigated when both parties have presented evidence on the issue. (p. 16.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Because the record include exhibits and extensive testimony from both parties’ witnesses on the Court’s prohibition against distributing literature “at any time for any purpose in working areas,” the Board found that the issue was fully litigated for purposes of the unalleged violations doctrine. (pp. 16-20.) For the purpose of the unalleged violations doctrine, a matter has been fully litigated when both parties have presented evidence on the issue. (p. 16.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Because the record include exhibits and extensive testimony from both parties’ witnesses on the Court’s prohibition against distributing literature “at any time for any purpose in working areas,” the Board found that the issue was fully litigated for purposes of the unalleged violations doctrine. (pp. 16-20.) For the purpose of the unalleged violations doctrine, a matter has been fully litigated when both parties have presented evidence on the issue. (p. 16.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Because the record demonstrated that both sides had had full opportunity to examine and cross-examine witnesses on the Court’s ban on distributing literature “at any time for any purpose in working areas,” the Board found that this requirement of PERB’s unalleged violations doctrine had been met. (pp. 20-21.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Because the record demonstrated that both sides had had full opportunity to examine and cross-examine witnesses on the Court’s ban on distributing literature “at any time for any purpose in working areas,” the Board found that this requirement of PERB’s unalleged violations doctrine had been met. (pp. 20-21.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Because the record demonstrated that both sides had had full opportunity to examine and cross-examine witnesses on the Court’s ban on distributing literature “at any time for any purpose in working areas,” the Board found that this requirement of PERB’s unalleged violations doctrine had been met. (pp. 20-21.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Because the Court’s ban on distributing literature “at any time for any purpose in working areas” was part of the same personnel rules identified in the complaint as unlawful, the matter was timely for purposes of PERB’s unalleged violations doctrine. Where unalleged matters involve the same conduct as that alleged in the complaint, the inclusion of one theory of liability in the complaint reflects a determination by the Office of the General Counsel that other theories arising from the same factual allegations are also timely. (p. 21.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Because the Court’s ban on distributing literature “at any time for any purpose in working areas” was part of the same personnel rules identified in the complaint as unlawful, the matter was timely for purposes of PERB’s unalleged violations doctrine. Where unalleged matters involve the same conduct as that alleged in the complaint, the inclusion of one theory of liability in the complaint reflects a determination by the Office of the General Counsel that other theories arising from the same factual allegations are also timely. (p. 21.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Because the Court’s ban on distributing literature “at any time for any purpose in working areas” was part of the same personnel rules identified in the complaint as unlawful, the matter was timely for purposes of PERB’s unalleged violations doctrine. Where unalleged matters involve the same conduct as that alleged in the complaint, the inclusion of one theory of liability in the complaint reflects a determination by the Office of the General Counsel that other theories arising from the same factual allegations are also timely. (p. 21.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. Because PERB found no persuasive showing of special circumstances to justify the Court’s personnel rule banning distribution and solicitation in working areas

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.10000 – Solicitation/Organizing

Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. Because PERB found no persuasive showing of special circumstances to justify the Court’s personnel rule banning distribution and solicitation in working areas

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.11000 – Distribution of Literature

Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. Because PERB found no persuasive showing of special circumstances to justify the Court’s personnel rule banning distribution and solicitation in working areas

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s analogy to federal cases involving patient-care areas in hospitals to justify its ban on displaying writings or union insignia anywhere in the courthouse visible to the public. (.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s analogy to federal cases involving patient-care areas in hospitals to justify its ban on displaying writings or union insignia anywhere in the courthouse visible to the public. (.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s argument that, because of its constitutional mandate to provide both the appearance and the fact of impartiality and neutrality to all litigants who appear before it, the ban on displaying writings or union insignia anywhere in the courthouse visible to the public is entitled to a presumption of legality. The Board reasoned that an objectively reasonable person viewing buttons or other regalia worn by Court employees and expressing support for the exclusive representative and/or its bargaining demands would not be attributed to the Superior Court judge assigned to the case. (p. 24.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Because some Court employees had regular contact with the public as part of their duties, while others did not, and the record contained little evidence as to particular job classifications the Board rejected the Court’s argument that, because of its constitutional mandate to provide both the appearance and the fact of impartiality and neutrality to all litigants who appear before it, the ban on displaying writings or union insignia anywhere in the courthouse visible to the public is entitled to a presumption of legality. The Board reasoned that an objectively reasonable person viewing buttons or other regalia worn by Court employees and expressing support for the exclusive representative and/or its bargaining demands would not be attributed to the Superior Court judge assigned to the case. (p. 24.) Under the PERB-administered statutes, the organizational right of access to the workplace is presumed and the burden is on the employer to establish that its regulation is reasonable and necessary under the circumstances to prevent disruption of operations. PERB has long held that wearing union clothing, buttons or pins in the workplace is protected, absent a showing of special circumstances to justify the restriction. (pp. 21-22.) The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

Although “[p]rivate-sector cases have concluded that, depending upon the situation, the need to project a certain image may permit an employer to ban union regalia” in areas where employees will have contact with the public, the Board rejected the Court’s argument that its need to project an image of impartiality and neutrality is a special circumstance justifying its restrictions on union regalia in the courtrooms and the rooms where mediations are conducted because the Court put on insufficient evidence to support a finding of special circumstances and it cannot categorically ban all display of union logos or regalia. Additionally, the Court’s history of having no such policy or/and of its lax or non-existent enforcement of any unwritten and apparently unpublicized policy defeated any assertion of special circumstances requiring such a policy now. The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Although “[p]rivate-sector cases have concluded that, depending upon the situation, the need to project a certain image may permit an employer to ban union regalia” in areas where employees will have contact with the public, the Board rejected the Court’s argument that its need to project an image of impartiality and neutrality is a special circumstance justifying its restrictions on union regalia in the courtrooms and the rooms where mediations are conducted because the Court put on insufficient evidence to support a finding of special circumstances and it cannot categorically ban all display of union logos or regalia. Additionally, the Court’s history of having no such policy or/and of its lax or non-existent enforcement of any unwritten and apparently unpublicized policy defeated any assertion of special circumstances requiring such a policy now. The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

The Board found lawful a personnel rule prohibiting distribution on “working time,” where that term was defined, in relevant part, as “the working time of both the employee doing the … distributing and the employee to whom the … [literature] is being directed.” PERB and NLRB precedents recognize that “Working time is for work” and an employer rule that relies on that term, without further specification, is in facial compliance with the law. PERB rejected the charging party’s exception that, by specifying some but not all exceptions, the rule was ambiguous and susceptible to an overly broad reading. An employer rule that identifies some, but not all exceptions to the term “working time” is not per se unlawful and there was no evidence that this portion of the rule was enforced in an overly broad manner. (pp. 26-27.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

The Board found lawful a personnel rule prohibiting distribution on “working time,” where that term was defined, in relevant part, as “the working time of both the employee doing the … distributing and the employee to whom the … [literature] is being directed.” PERB and NLRB precedents recognize that “Working time is for work” and an employer rule that relies on that term, without further specification, is in facial compliance with the law. PERB rejected the charging party’s exception that, by specifying some but not all exceptions, the rule was ambiguous and susceptible to an overly broad reading. An employer rule that identifies some, but not all exceptions to the term “working time” is not per se unlawful and there was no evidence that this portion of the rule was enforced in an overly broad manner. (pp. 26-27.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

The Board adopted the ALJ’s findings and conclusions that the Court’s rule, as written, was ambiguous and overly broad in its potential to discourage employees from engaging in protected activity in mixed-use areas during their non-duty time. Specifically, the rule does not take into consideration that, during regularly-scheduled meal breaks or other times when not in use for official Court business, certain working areas of the courthouse convert into nonworking areas. (p. 28.) The PERB-administered statutes contain a presumptive right of access to public-sector workplaces by union agents, subject to reasonable regulation. To constitute a “reasonable” regulation of this statutory-protected right, the employer must show that the particular regulation is both: (1) necessary for efficient operations and/or for the health and safety of employees or others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Rules directly affecting employee rights must also be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

The Board adopted the ALJ’s findings and conclusions that the Court’s rule, as written, was ambiguous and overly broad in its potential to discourage employees from engaging in protected activity in mixed-use areas during their non-duty time. Specifically, the rule does not take into consideration that, during regularly-scheduled meal breaks or other times when not in use for official Court business, certain working areas of the courthouse convert into nonworking areas. (p. 28.) The PERB-administered statutes contain a presumptive right of access to public-sector workplaces by union agents, subject to reasonable regulation. To constitute a “reasonable” regulation of this statutory-protected right, the employer must show that the particular regulation is both: (1) necessary for efficient operations and/or for the health and safety of employees or others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Rules directly affecting employee rights must also be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

Where the record demonstrated that employees in various departments of the Court take their meal or rest breaks in unused courtrooms and jury rooms as well as at their cubicles, desks or other employee workstations, and even in a file room, such areas are considered “mixed-use” areas. During non-duty time, solicitation and the distribution of literature as well as other nondisruptive concerted activities in so-called mixed-use areas, are statutorily protected. (p. 29.) Because the Court’s categorical ban on distributing literature in such mixed-use areas is reasonably susceptible to an interpretation that unlawfully restricts protected activity during employees’ non-duty time, the Board found it overly broad and in violation of the Trial Court Act. (p. 29.) Rules directly affecting employee rights must be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Where the record demonstrated that employees in various departments of the Court take their meal or rest breaks in unused courtrooms and jury rooms as well as at their cubicles, desks or other employee workstations, and even in a file room, such areas are considered “mixed-use” areas. During non-duty time, solicitation and the distribution of literature as well as other nondisruptive concerted activities in so-called mixed-use areas, are statutorily protected. (p. 29.) Because the Court’s categorical ban on distributing literature in such mixed-use areas is reasonably susceptible to an interpretation that unlawfully restricts protected activity during employees’ non-duty time, the Board found it overly broad and in violation of the Trial Court Act. (p. 29.) Rules directly affecting employee rights must be narrowly drawn to avoid overbroad, unnecessary inference, including the likelihood that latent ambiguity would chill the exercise of protected activity. (p. 28.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

The Board rejected the Court’s argument that it could not be found liable for an overly broad ban on distribution in mixed-use areas because it had never enforced its rule to restrict protected activity during non-duty time. Under the decades-old Carlsbad standard, a prima facie interference violation is established if the employer’s conduct, including its promulgation or maintenance of a rule, tends to or does result in harm to employee rights. (p. 31.) Even absent enforcement, the promulgation or maintenance of an employer rule may interfere with protected rights because its ambiguity creates the reasonable possibility of a broad interpretation in the future that would produce a chilling effect on protected activity. (Ibid.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

The Board rejected the Court’s argument that it could not be found liable for an overly broad ban on distribution in mixed-use areas because it had never enforced its rule to restrict protected activity during non-duty time. Under the decades-old Carlsbad standard, a prima facie interference violation is established if the employer’s conduct, including its promulgation or maintenance of a rule, tends to or does result in harm to employee rights. (p. 31.) Even absent enforcement, the promulgation or maintenance of an employer rule may interfere with protected rights because its ambiguity creates the reasonable possibility of a broad interpretation in the future that would produce a chilling effect on protected activity. (Ibid.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.03000 – Ban on Distribution or Solicitation

Instead of using the term “working time” to define the temporal scope of its restriction on solicitation and thereby restating PERB and private-sector decisional law, the Court’s personnel rule instead introduced the separate and undefined term “working hours,” which PERB precedents have treated as suspect, because of its potential to restrict protected activity during all “working hours” when employees are at work, including duty-free time. Given the ambiguity, the Board found the Court’s rule banning solicitation during “working hours” ambiguous and overly broad. While “Working time is for work,” and an employer may therefore prohibit solicitation during “working time,” an employer rule that prohibits solicitation or distribution during “working hours,” but makes no mention of duty-free times during “working hours,” such as meal or rest periods, when employees may solicit one another or distribute literature, may reasonably be interpreted as authoring no such activities during those duty-free periods of the day.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Instead of using the term “working time” to define the temporal scope of its restriction on solicitation and thereby restating PERB and private-sector decisional law, the Court’s personnel rule instead introduced the separate and undefined term “working hours,” which PERB precedents have treated as suspect, because of its potential to restrict protected activity during all “working hours” when employees are at work, including duty-free time. Given the ambiguity, the Board found the Court’s rule banning solicitation during “working hours” ambiguous and overly broad. While “Working time is for work,” and an employer may therefore prohibit solicitation during “working time,” an employer rule that prohibits solicitation or distribution during “working hours,” but makes no mention of duty-free times during “working hours,” such as meal or rest periods, when employees may solicit one another or distribute literature, may reasonably be interpreted as authoring no such activities during those duty-free periods of the day.