UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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PERB-administered statutes protect most union and employee speech related to legitimate labor and employment concerns. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 18 (San Jacinto).) For instance, employees normally have a statutory right to criticize working conditions, management, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Such speech does not lose protection merely because it is intemperate, disparaging, or inaccurate, or engenders ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate or flagrant as to create a substantial disruption or the serious risk thereof. (Id. at pp. 21-22.) The Board no longer applies a formulation derived from Rancho Santiago Community College District (1986) PERB Decision No. 602, which strung together a series of adjectives to describe the types of speech that could lose protection. (Id. at p. 13 [speech unprotected if “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice”].) Instead, the Board applies one or both of the following two tests, depending on the nature of a respondent’s arguments asserting that speech has lost its protection. (See, e.g., Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14 (Carpinteria).) First, if an employer claims that union or employee speech loses protection because it is false, the employer must prove, by clear and convincing evidence, that the speech was maliciously false, meaning that the speaker either knew of its falsity or recklessly disregarded whether it was true or false. (San Jacinto, supra, PERB Decision No. 2865, p. 23.) Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. (Ibid.) Second, if the employer claims that speech was flagrant or insubordinate and therefore disruptive, 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. (San Jacinto, supra, PERB Decision No. 2865, p. 22.) Where speech about workplace issues occurs off duty, it is normally more difficult for the employer to show that it loses protection. (Ibid.; but see Carpinteria, supra, PERB Decision No. 2797, p. 14, fn. 10 [employer can take adverse action against employee who threatens physical harm against a colleague, no matter when or by what means the employee conveys the threat].) (pp. 18-19.)