UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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EERA allows employee and union speech on protected topics to be impulsive, intemperate, disparaging, or inaccurate, and thereby engender ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate, opprobrious, or flagrant as to cause substantial disruption in the workplace. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 13-14, 16; Mt. San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 9-14; County of Riverside (2018) PERB Decision No. 2591, p. 9; Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16.) Where an employer claims that speech was so flagrant or insubordinate as to disrupt operations, PERB conducts a fact-intensive inquiry that considers all relevant circumstances, including but not limited to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of what occurred; and (4) the extent to which the speech or conduct at issue can fairly be said to have been provoked by the employer. (Carpinteria, supra, PERB Decision No. 2797, p. 14.) When the speech at issue occurred by text message, e-mail, social media, or in another manner that was not face-to-face, there tends to be less likelihood of disruption. (Id. at p. 14, fn. 10.) In the instant matter, the Board found each of these factors favored the protected nature of Gibbons’s May 4 and May 5 e mails. (pp. 21-22.)