EMPLOYER DISCRIMINATION; DEFENSES – Misconduct

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The Board rejected the State's claim that comments uttered by charging party were violative of PERB case law governing speech in the workplace. To decide whether speech is lawful, a principal consideration is whether the speech contains a "threat of reprisal or force," under an objective rather than a subjective standard. The fact that an employer may interpret statements, which are otherwise protected, as coercive does not necessarily render those statements unlawful. Statements are viewed in their overall context to determine if they have a coercive meaning; pp. 36-43, proposed dec. Board rejected State's claims that charging party was guilty of misconduct with regard to the acts leading up to the investigation, and that he was dishonest during the investigation itself, finding that his acts did not justify adverse action under the circumstances presented; pp. 43-47, proposed dec.