UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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Employee conduct and speech related to a labor and employment dispute is protected unless it is so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to substantially disrupt or materially interfere with employer operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13 (Rancho Santiago).) The Rancho Santiago standard encompasses two different tests. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 19, fn. 9.) The first test, which applies when an employer or union claims that an employee has leveled a false criticism, is largely content-based: the speech only loses protection if it was maliciously false. (Ibid.) The second test is conduct-based and analyzes whether the employee engaged in face-to-face communications with a manager or supervisor in a manner that substantially disrupts operations. (Ibid.) This fact-intensive inquiry generally considers, at least: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was in any way provoked by the employer’s unfair labor practice. (Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 11.)