Decision 2593H – Regents of the University of California (Irvine)

SF-CE-1085-H

Decision Date: October 26, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 69

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

During work time, employer may not restrict discussions related to union matters while permitting other non-work discussions.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

A prima facie case of interference will be found when the employer has engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by the statute. The employer then has the burden of demonstrating operational necessity or circumstances beyond the employer’s control as justification for the conduct. The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm. If the harm to protected rights is slight, a violation will be found unless the employer’s business justification outweighs the harm to protected rights. If the employer’s conduct is, instead, inherently destructive of protected rights, it will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.05000 – Union Activity During Nonworking Time or in Nonworking Areas

Because work time is for work, an employer may restrict non-business activities during work time, but it may not single out union activities for special restriction, or enforce general restrictions more strictly with respect to union activities.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.05000 – Union Consent or Waiver

Waiver of a statutory right is an affirmative defense, and may be established only by: (1) clear and unmistakable agreement; or (2) bargaining history showing that the issue was fully discussed and consciously explored, and that the waiving party intentionally yielded its interest in the matter.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.05000 – Union Consent or Waiver

Contractual prohibition of “[s]uch internal union business as membership recruitment, campaigning for union office, handbilling or other distribution of literature, and all other union activities shall take place during non-work time” was not a clear and unmistakable waiver of employee rights to discuss union matters during work time.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

PERB Regulation 32300 permits a party to file a statement of exceptions, a brief, or both. When a statement of exceptions and supporting brief together provide all of the information required by PERB Regulation 32300, subdivision (a), the Board will find compliance with the regulation.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

The Board disregarded a typographical error in a statement of exceptions where it was able to discern the intended meaning from the remainder of the exceptions.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.03000 – General Principles of Contract Interpretation

According to the maxim that “a word takes its meaning from the company it keeps” (noscitur a sociis), it is appropriate to adopt a restrictive meaning of a listed item if acceptance of a broader meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.