Decision 1994M – City of Modesto
SA-CE-486-M
Decision Date: December 19, 2008
Decision Type: PERB Decision
Description: The Association alleged that the City retaliated against an employee for appealing a proposed suspension by increasing the suspension from two days to five days.
Disposition: The Board affirmed the ALJ’s dismissal of the complaint. The department head who imposed the final five-day suspension had no knowledge of the employee’s appeal. Further, although two employees who prepared the final notice of suspension knew of the appeal, neither knew that the notice of proposed suspension had purported to impose a two-day suspension, with three days held in abeyance.
Perc Vol: 33
Perc Index: 24
Decision Headnotes
300.05000 – Grievances
An employee’s attempt to assert rights established by the terms of a negotiated agreement constitutes participation in the activities of an employee organization. Employee’s appeal of proposed suspension pursuant to provision of memorandum of understanding between his employer and his exclusive representative was protected under MMBA.
503.02000 – Suspension, Dock in Pay
Final notice of suspension is an adverse action.
504.14000 – Other/In General
No nexus between employee’s appeal of proposed suspension and employer’s imposition of five-day suspension when employees who knew of appeal and prepared final notice of suspension for department head’s signature were unaware that notice of suspension purported to suspend employee for two days, with three days held in abeyance.
501.03000 – Knowledge of Protected Activity
Employer had knowledge of employee’s protected activity of appealing his proposed suspension when two employees who prepared final notice of suspension for department head’s signature, but not department head himself, knew of employee’s appeal.
505.13000 – Other
Employer had knowledge of employee’s protected activity of appealing his proposed suspension when two employees who prepared final notice of suspension for department head’s signature, but not department head himself, knew of employee’s appeal.
1107.11000 – Request for Oral Argument
The Board will deny a request for oral argument when an adequate record has been prepared, the parties had ample opportunity to present briefs and have availed themselves of that opportunity, and the issues before the Board are sufficiently clear to make oral argument unnecessary. Oral argument request denied because all criteria for denial were met.
1107.14000 – Informational Briefs
The Board has discretion to allow the filing of a reply brief when a response to exceptions raises new issues, discusses new case law or formulates new defenses to allegations. Board declined to exercise discretion because reply brief merely provided additional argument and record citations to bolster arguments made in exceptions.