Decision 3048M – City of Novato

To establish a prima facie interference case, the facts must show that a respondent’s conduct tends to or does result in some harm to protected rights. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36 (San Diego).) A charging party need not show that the respondent acted because of an unlawful motive. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 20.) If a charging party union or employee establishes a prima facie interference case, the burden shifts to the employer. (San Diego, supra, PERB Decision No. 2747 M, p. 36.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at pp. 36-37, fn. 19.) (pp. 5-6.)

Surveillance of protected activity, as well as the appearance of such surveillance, constitutes conduct that tends to chill the exercise of protected rights. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 43-48 (Palomar); County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21 (San Bernardino).) Accordingly, a charging party pleads a valid prima facie case of interference by alleging that an employer’s agent has gone beyond merely observing open, public protected activity near the employer’s property and instead has: (a) photographed, video recorded, or engaged in other recordkeeping of protected activities, or (b) created the appearance of such conduct. (Palomar, supra, pp. 43-48; San Bernardino, supra, pp. 20-21.) (p. 6.)

Surveillance of protected activity, as well as the appearance of such surveillance, constitutes conduct that tends to chill the exercise of protected rights. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 43-48 (Palomar); County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21 (San Bernardino).) Accordingly, a charging party pleads a valid prima facie case of interference by alleging that an employer’s agent has gone beyond merely observing open, public protected activity near the employer’s property and instead has: (a) photographed, video recorded, or engaged in other recordkeeping of protected activities, or (b) created the appearance of such conduct. (Palomar, supra, pp. 43-48; San Bernardino, supra, pp. 20-21.) (p. 6.)

The appearance of surveillance by an employer’s agent is sufficient to establish a prima facie interference case. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 47-48; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 21-22.) (pp. 6-7.)

Neither the public nature of picketing nor the fact that the union and media outlets post images of picketers defeats an otherwise valid claim based on surveillance or the appearance thereof. PERB precedent recognizes that an employer’s surveillance or the appearance thereof tends to intimidate employees from engaging in protected activity, even when the protected activity is public facing. (See, e.g., Palomar Health (2024) PERB Decision No. 2895-M, pp. 44-45 (Palomar) [leafletting patrons at a public facility’s front entrance].) This is consistent with other decisions in which PERB has noted that employers are unique in that their control over discipline makes their conduct more likely to discourage protected activity. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23.) Also instructive is F.W. Woolworth Co. (1993) 310 NLRB 1197 (Woolworth), cited with approval in Palomar, supra, PERB Decision No. 2895-M, p. 43 and County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21. In Woolworth, even though the union had notified local media that employees would be leafletting store entrances, resulting in at least one television spot that included interviews with employees engaged in leafletting, the National Labor Relations Board found the employer liable for unlawfully photographing and video recording the leafletting. (Woolworth, supra, 310 NLRB 1197-1198 [affording little weight to the fact that the union chose to publicize its protected activities]; see also National Steel and Shipbuilding Co. v. National Labor Relations Bd. (D.C. Cir. 1998) 156 F.3d 1268, 1272 [upholding surveillance violation despite fact that union invited local media to attend rally]; John Ascuaga’s Nugget (1990) 298 NLRB 524, 554 fn. 105 [fact that media reporters and photographers were covering an event did not detract from conclusion that surveillance by employer tended to chill protected activity].) (pp. 8-9.)

Where charging party alleged facts amounting to a prima facie case of surveillance or the appearance of surveillance of picketing activity, the respondent can contest charging party’s factual allegations at the formal hearing. The respondent can also present evidence that it had a legitimate business need outweighing the tendency to harm protected rights, and that it narrowly tailored its conduct to that business need while limiting harm to protected rights as much as possible. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 42-48; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-23.) (pp. 6-7.)

In resolving an appeal from a dismissal, the Board reviews OGC’s determinations de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2 (San Francisco).) At the pre-complaint stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven, would state a prima facie case. (Ibid., citing County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) The Board assumes that charging party’s factual allegations are true and views them in the light most favorable to the charging party. (San Francisco, supra, p. 2; Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. (San Francisco, supra, p. 2; Cabrillo I, supra, p. 8.) If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), OGC should issue a complaint. (San Francisco, supra, pp. 2-3; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298 M, p. 13.) Furthermore, a complaint must ordinarily issue when there are contested, colorable legal theories. (San Francisco, supra, p. 3; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13.) In contrast, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (San Francisco, supra, p. 3; Cabrillo I, supra, PERB Decision No. 2453, p. 9.) (pp. 2-3.)

In resolving an appeal from a dismissal, the Board reviews OGC’s determinations de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2 (San Francisco).) At the pre-complaint stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven, would state a prima facie case. (Ibid., citing County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) The Board assumes that charging party’s factual allegations are true and views them in the light most favorable to the charging party. (San Francisco, supra, p. 2; Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. (San Francisco, supra, p. 2; Cabrillo I, supra, p. 8.) If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), OGC should issue a complaint. (San Francisco, supra, pp. 2-3; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298 M, p. 13.) Furthermore, a complaint must ordinarily issue when there are contested, colorable legal theories. (San Francisco, supra, p. 3; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13.) In contrast, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (San Francisco, supra, p. 3; Cabrillo I, supra, PERB Decision No. 2453, p. 9.) (pp. 2-3.)