Decision 2756H – Regents of the University of California

SF-PE-5-H

Decision Date: March 1, 2021

Decision Type: PERB Decision

Description: This case came before the Board on Teamsters Local 2010’s appeal of the Office of the General Counsel’s (OGC) dismissal of Teamsters’ unfair practice charge, which alleged that the University violated the PEDD when, in response to a Teamsters organizing flyer, it posted a document on its website which compared salary increases between represented and unrepresented staff, and then made a series of claims about the University’s efforts to compensate, protect, and support unrepresented employees.

OGC dismissed the charge for failing to identify any statements in the University’s communication that did not fall within the protection of the safe harbor for non-coercive speech set by HEERA section 3571.3). The Board applied the standard articulated in Regents of the University of California (2021) PERB Decision No. 2755-H to the facts, and found that Teamsters’ unfair practice charge stated a prima facie case that the University’s posting tends to influence employee free choice.

Disposition: The Board reversed the dismissal of the unfair practice charge, and remanded to the Office of the General Counsel to issue a complaint alleging that the Regents of the University of California’s November 26, 2018 posting deterred or discouraged public employees from authorizing union representation and/or becoming union members in violation 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 creates a new and more robust protection that is not subject to the free speech safe harbor of HEERA section 3571.3. (p. 7.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – In General; Standards

Where a charging party shows employer conduct tended to influence employee decisions about whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees, the burden then shifts to the employer to plead and prove a business necessity as an affirmative defense. (p. 7.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.01000 – In General; Standards

By its plain language, PEDD section 3550 applies broadly to employer conduct toward “public employees or applicants.” The statute restricts an employer’s influence over employee decisions whether or not to authorize union representation, become or remain a union member, or commence or continue paying union dues or fees “irrespective of whether employees are exclusively represented by a union.” (Regents, supra, PERB Decision No. 2755-H, p. 39.) Indeed, employee decisions whether or not to authorize representation occur frequently when employees are unrepresented. Although Regents of the University of California (2021) PERB Decision No. 2755-H involved communications to represented employees, the plain language of the statute suggests no reason a different test would necessarily apply where, as here, the employer’s conduct or communication is directed toward unrepresented employees. (p. 8.)

410.00000 – EMPLOYER DETERRENCE OR DISCOURAGEMENT
410.02000 – 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.)