Decision 2755H – Regents of the University of California

SF-CE-1188-H, SF-CE-1189-H, and SF-CE-1192-H

Decision Date: March 1, 2021

Decision Type: PERB Decision

Description: These consolidated cases came before the Board on exceptions and cross-exceptions, essentially seeking to establish what it means to “deter or discourage” under the recently enacted PEDD section 3550. At the parties’ request, the Board conducted Oral Argument on these matters.

The PEDD 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 found, drawing from existing court and Board precedent, “deter or discourage” means 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. The test for “tends to influence” is objective; it is a charging party’s prima facie burden to 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. When conducting this prima facie analysis, the Board treats 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 dues or fees. Section 3550 thus does not merely duplicate the existing interference standard; it creates a new and more robust protection that is not subject to the free speech safe harbor of HEERA section 3571.3.

Upon finding a prima facie section 3550 violation, the Board will analyze an employer’s business necessity argument as an affirmative defense that the employer has the burden to plead and prove. The Board will resolve such an asserted defense by weighing the tendency to deter or discourage against the employer’s asserted business necessity. Finally, where a charging party proves that the employer violated section 3553 by failing to meet and confer in good faith with the charging party before issuing a mass communication concerning public employees’ rights to join or support, or to refrain from joining or supporting, an employee organization, a rebuttable presumption arises that the communication also violates section 3550. The employer may rebut the presumption by proving that the communication does not deter or discourage employee decisions protected by section 3550.

After articulating this standard, the Board applied it to the facts presented by these consolidated cases, which included the University’s distribution of a letter and FAQ regarding the impact of the United States Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) 585 U.S. ___, 138 S.Ct. 2448 (Janus). The Board found the University failed to rebut the presumption of a section 3550 violation created by its unchallenged violation of section 3553, and further, that even if the University had not presumptively violated section 3550, Charging Parties established a prima facie case that the University’s communications tended to influence employee free choice. Balancing all relevant factors, the Board found the University failed to establish an affirmative defense that its business need to communicate regarding Janus in the manner it did outweighed the communications’ tendency to influence employee free choice.

Disposition: The Board affirmed in part and reversed in part the conclusions of the proposed decision, and established the standard used in evaluating violations of PEDD section 3550.

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Decision Headnotes

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

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.

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

To establish a prima facie interference case, a charging party must show that a respondent’s conduct tends to or does result in some harm to protected rights under our statutes. Once a charging party establishes a prima facie case, the burden shifts to the employer. The degree of harm dictates the employer’s burden. (p. 52.)

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

Violations of PEDD section 3550 do not require a showing of coercive effect, and thus do not give rise to derivative interference violations. (p. 53.)

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

In resolving an interference claim involving employer speech, the Board considers the employer’s statement in its overall context, i.e., in light of surrounding circumstances, to determine if an employee or union representative would objectively tend to feel that the statement coerces, restrains, or otherwise interferes with protected rights. One relevant factor is the extent to which a statement is truthful or misleading. (pp. 52-53.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – 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.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – 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.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – 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.

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – 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.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.02000 – 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.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.02000 – 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.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

When interpreting statutory language, PERB begins with the fundamental rule that it should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Where the language of a statute is clear and unambiguous the construction intended by the Legislature is obvious from the language used. Statutes are to be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers. Further, every statute should be construed with reference to the whole system of which it is a part so that all may be harmonized and have effect. Where the provisions of a statute are subject to two or more reasonable interpretations, the interpretation which will harmonize rather than conflict with other provisions thereof should be adopted. (pp. 20-21.) Generally, when the Legislature uses a word or phrase in a particular sense in one statute, the word or phrase should be understood to carry the same meaning when it appears in another statute dealing with the same subject matter. Government Code sections 16645 and 3550 deal with the same subject matter—employer conduct related to employee decisions about union support. The Legislature’s use of “deter” in both statutes thus indicates it intended for the word to be interpreted similarly in each. (p. 23.)