Decision 2856M – Alameda Health System

It is well established that “advocacy on behalf of a group of employees concerning working conditions is protected activity.” (Berkeley Unified School District (2015) PERB Decision No. 2411, p. 19.) A Board of Trustees member’s characterization of the political theater engaged in by employees and the union is at the heart of this type of protected activity – bringing attention to individual problematic instances to advocate for changes in working conditions. (p. 35.)

An adverse employment action taken against a known union activist need not be inherently destructive if nondiscriminatory reasons warrant the action, because in such circumstances the action does not send the message that union activists will be disadvantaged. (p. 28.) While there are instances where animus establishing a prima facie case also triggers the inherently destructive standard, a nondiscriminatory personnel action need not be inherently destructive. (p. 29.)

The Board rejected any automatic rule that an employer’s affirmative defense to retaliation automatically negates the possibility of harm under a related but independent interference allegation, and clarified that an employer’s business defense is properly considered as part of the Carlsbad balancing analysis. (p. 30, fn. 14.)

Ending the employment of an employee who has recently engaged in protected activity is likely to have a chilling effect on other employees’ likelihood of engaging in similar actions, though that effect may be lessened where serious work performance issues justified the employee’s termination. (p. 30.) While there may be instances when an employer’s established defense to retaliation does not defeat an independent interference allegation based on the same underlying facts, that was not the case here. The harm caused by releasing an employee from probation shortly after he engaged in protected activity is outweighed by the employer’s right to release an employee from probation for serious work performance issues. (p. 31.)

In an interference case involving employer speech, the surrounding circumstances are relevant to determine if an employee or union representative would objectively tend to feel that the communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer does not commit an interference violation if it expresses or disseminates its views, arguments, or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. This safe harbor for employer speech does not apply, however, “to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.” The Board examines the context of employer statements to determine whether they convey a threat of reprisal or force, promise of benefit, or demonstrate a preference for either one organization over another, or one group or another within a single organization. In cases involving employer speech, PERB considers the accuracy of the communication in conjunction with the employer’s need to communicate in deciding whether the employer can establish an affirmative defense. (pp. 31-32.)

The MMBA gives employers the right to express even unflattering views on a union’s actions so long as the statements did not include any threats of reprisal or promises of benefit. (See City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26.) That some employees felt a Board of Trustees member belittled protected activities by labeling them as “political theater” did not convert that phrase into a threat or promise. But his direct statement that protected activity is “not acceptable [in] a time of crisis” sent a different message, one that was not confined to opinion. An employee could reasonably infer that he or she would be punished for engaging in the types of actions which the Board of Trustees member labeled “not acceptable.” That is because a reasonable employee would understand “not acceptable” to mean disallowed or prohibited. While the Board of Trustees member did not state explicitly that employees would be punished, his use of the phrase “not acceptable” was sufficiently coercive to fall outside the safe harbor for free speech. (pp. 35-36.)

If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. Interference can be either an independent violation or derivative of another violation, depending upon whether the facts at issue permit a charging party to establish interference without establishing any other violation. When a complaint alleges both interference and retaliation based on the same set of facts, and PERB sustains a retaliation finding, it will also at least find derivative interference. While retaliation claims may be accompanied by derivative interference claims, where properly pled the same underlying facts may also support an independent interference claim. (p. 26.)