California Public Employers Must Remain Neutral on Public Employees’ Right to Organize
The Prohibition on Public Employer Deterring or Discouraging Union Membership (“PEDD,” Gov. Code §§ 3550-3553) provides employees with statutory protections against public employers interfering with protected union activity. The Legislature passed this law in 2018 in anticipation of the Supreme Court’s decision in Janus v. AFSCME Council 31, 138 S.Ct. 2448 (2018), invalidating fair share/agency fees. Government Code Sections 3550 and 3553 require public employers to remain neutral and permit employee free choice in the exercise of statutory rights related to union membership.
Section 3550 requires public employers to remain neutral with respect to an employee’s decision in three specific circumstances: (1) authorizing representation by a union; (2) becoming or remaining a union member; and (3) authorizing union fee deductions/paying dues. This section applies to all California public employers, and protects all public employees, not just those who are currently represented by a union or in the process of authorizing union representation. Section 3553 of the PEDD requires public employers to meet and confer with certified or recognized exclusive bargaining representatives before issuing a mass communication concerning public employees’ rights to join or support (or refrain from joining/supporting) an employee organization. This provision applies to emails, written documents, and even a script for an oral or recorded communication that is intended for delivery to “multiple public employees.”
Section 3550 prohibits employers from “deterring or discouraging” employee free choice. In 2021, PERB issued three decisions that explain what “deter or discourage” means: Regents of the University of California (2021) PERB Dec. No. 2755-H (“Regents I”), Regents of the University of California (2021), PERB Dec. No. 2756-H (“Regents II”), and Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Dec. 2795E (“Alliance”). Deter or discourage means “tends to influence,” which requires an objective evaluation of whether the challenged conduct or communication is reasonably likely to deter or discourage employee free choice. The charging party is not required to show that the employer made a threat or promised a benefit.
PERB’s three decisions listed above found the following communications violated the law:
An FAQ from the UC Office of the President addressing the impact of Janus on public employees’ rights, without meeting and conferring with any of the certified bargaining representatives that represent UC employees prior to sending the documents via email to all UC employees;
A document posted on the UC website during an organizing campaign, comparing salary increases between represented and non-represented staff and making claims about UC’s efforts to compensate, protect, and support unrepresented employees;
Emails sent by human resources and charter school principals and assistant principals, about a union’s organizing drive at various charter schools, praising the union-free atmosphere of the schools. Some unlawful emails contained statements about the union, its organizing tactics, how it spends dues money, and asserted the union takes money while providing very little in return. PERB held these emails conveyed a message of discouraging union membership and would tend to interfere with employee free choice.
Unions should be vigilant and keep an eye on communications sent out to current and potential represented employees that mention employees’ rights to authorize representation by a union, join or remain members of a union, or authorize dues/fee deductions to the union. When a union is a certified or recognized bargaining representative, the public employer must meet and confer prior to disseminating the communication.
Finally, to determine whether there is a 3550 violation, ask whether the communication is likely to influence a reasonable person’s free choice. If the answer is “yes”, there may be a violation of PEDD. If you encounter issues that may implicate the PEDD, consult your labor law counsel.