PERB Decision Interprets Statute Which Prohibits Public Employers From Deterring or Discouraging Union Membership
On March 1, 2021, the Public Employment Relations Board (“PERB” or “Board”) crafted a test for determining whether a public employer has violated the Prohibition on Public Employers Deterring or Discouraging Union Membership Law (“PEDD”), codified in Sections 3550 and 3553 of the Government Code. The Board applied this new test in two decisions. (Regents of the University of California (2021) PERB Decision No. 2755-H (“Regents”); Regents of the University of California (2021) PERB Decision No. 2756-H (“Teamsters”).
Background on PEDD
On June 27, 2018, Governor Jerry Brown signed Senate Bill (SB) 866 into law. This bill was passed partially in response to Janus v. AFSCME (2018) 138 S.Ct. 2448 (“Janus”). In Janus, the United States Supreme Court held that agency fee dues arrangements infringe on public employees’ First Amendment rights. Previously, unions were permitted to collect agency fees from non-union members, based on the benefits that non-members obtain from union representation. Agency fees covered the cost of the union’s negotiation, contract administration, and other activities germane to the functions of the union.
Under the PEDD, public employers are prohibited from exerting any type of influence, whether positive or negative, on employee decisions to: (1) join a union; (2) become or remain a union member; (3) or begin or continue to pay union dues or fees.
New Test for Claims under Government Code Sections 3550 and 3553
The Board delineated the new legal standard for cases brought under Section 3550 in the Regents decision. The Board found Section 3550’s use of “deter or discourage” to mean a public employer’s “tend[ency] to influence an employee’s free choice” whether or not to engage in three activities: (1) authorize union representation; (2) become or remain a union member; or (3) begin or continue to pay union dues or fees.
The Board then announced a new framework for determining whether a public employer violates Section 3550. First, the charging party bears the burden to show a prima facie case by showing that the public employer’s conduct tends to influence employee free choice in any of the three activities above. Under this objective standard, Section 3550 prohibits any employer influence as to these three actions, even if the employer professed neutrality on unionization and refrained from coercive or threatening adverse action.
Alternatively, the charging party can raise a rebuttable presumption that a public employer has violated Section 3550 by presenting a prima facie case under Government Code Section 3553. A claim under Section 3553 requires the charging party to prove that the employer failed 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. If the charging party meets the initial burden under Section 3553, the employer must rebut the presumption that it has also violated Section 3550.
Once a prima facie case has been made, the public employer can raise the business necessity affirmative defense. As with traditional interference claims, the degree of harm dictates the public employer’s burden in raisng this defense. If the employer’s conduct is “inherently destructive” of free choice in any of the three categories listed above, the employer must show that its conduct was caused by circumstances beyond its control and no alternative was available. For the remainder of employer conduct, the employer may justify its actions based on operational necessity and the Board will weigh these interests against the likelihood of influence on employee free choice. Alternatively, if the charging party triggered a presumptive Section 3553 violation, the employer may rebut the presumption of liability by proving that the communication does not deter or discourage employee decisions protected under Government Code Section 3550.
In Teamsters, the Board clarified the scope of the PEDD protections by interpreting Government Code Section 3550 as “broad,” announcing that the protection extended to public employees, regardless of whether or not they were represented by a union, and to public employee applicants.
In the Regents case, the Board found the Regents of the University of California (“Regents”) violated the PEDD. The Regents had issued a mass communication statement to its employees announcing that due to the Janus decision, non-union members were no longer required to pay “agency fees.”
The Board determined the Regents violated the PEDD because, through its mass communication, the University had influenced its non-union employees by connecting the choice to refrain from union membership with a larger paycheck. PERB found that the Regents’ mass communication “tended to influence employee free choice by attaching a financial disincentive to union members without context, and by actively and presumptively subverting the Union’s participation in conversations with bargaining unit employees.” Further, PERB noted that the Regents refused to meet and confer with the union before the mass communication was delivered to employees despite the union’s efforts to discuss the impact of the Janus decision on union membership and activities. Finally, the Board looked at the context of the mass communication, taking into consideration the timing, frequency, duration, and translation of the communication to its employees. Based on the new test outlined above, the Board found that the union had met their burden of proving a prima facie claim under Section 3553. Consequently, the Board found that the union had triggered a presumption that the Regents had also violated Section 3550 based on its showing of a Section 3553 violation.
PERB also found the Regents had not proven a business necessity affirmative defense. The Board discounted the Regents’ claim that it owed an obligation and a right to communicate with its employees regarding the terms and conditions of their employment, specifically as to the urgent impact of the Janus decision. These reasons constituted a “business purpose” instead of a “business necessity,” which did not suffice to state a viable affirmative defense to either PEDD claim.
In Teamsters, the union pursued an unfair practice claim when the Regents of the University of California (“Regents”) published a document on its website responding to a previously published union flyer. The union’s flyer asserted that from 2010-2022, it had negotiated 33% total wage increases and that this was approximately three times greater than the comparable total for unrepresented University employees during the same time frame. The flyer also mentioned benefits union members enjoyed in comparison to non-union members asserting non-union employees had “No Protections at Work.” The Regents responded to the union’s flyer by publishing a document on its website that provided its employees with alternative calculations for wage increases. The Regents’ document asserted that from 2007-2019, unrepresented University employees had received approximately 25% in wage increases. The Regents’ document also challenged the union’s assertion that non-union employees had “No Protections at Work” by stating the Regents had “numerous policies, procedures and personnel to ensure that employees’ concerns and complaints [were] taken seriously and addressed.”
The Board also clarified that the new test for claims brought under Section 3550 extends to all public employees, including unrepresented employees, as well as applicants. As to the merits of the case, the Board found that a prima facie Section 3550 case had been stated, given that the Regents’ document tended to influence employee free choice. PERB based its holding on the context in which this document had been published (during an organizing campaign), as well as the fact that the document contained representations about the merits of union representation. Given this, and the presence of material factual disputes bearing on the Regents’ affirmative defenses, the Board remanded the case so that a hearing could be held.
The Regents and Teamsters decisions are noteworthy in several respects. First, the Board provided new tests for evaluating claims brought under Sections 3550 and 3553 of the Government Code. The Regents case highlights that these protections cover three discrete union activities, and go beyond general interference protections. Second, these decisions reflect that public employers may violate the PEDD through seemingly innocuous and neutral communications, including statements that support unionization and/or union activity. Employers should consider whether communications may influence employee free choice, as a statement’s neutrality will not insulate it from liability. Third, these decisions illustrate that PERB will exercise particular scrutiny on defenses brought by public employers, including the Regents and other large public entities.
Based on the reasoning in and the implications of the Board’s decisions, public employers should tread lightly and carefully evaluate future communications with employees, regardless of their represented status. These cases demonstrate that PERB will recognize broad protections for employees under the PEDD. Please feel free to contact the Authors of this Alert or your regular AALRR counsel with any questions.