UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

Single Topic for Decision 2930E

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PERB no longer follows a singular test for finding speech unprotected. The superseded test had found speech unprotected if it was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to cause “substantial disruption of or material interference” with operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602.) However, the Board now analyzes whether: (1) speech is proven, by clear and convincing evidence, to have been maliciously false; or (2) speech was sufficiently flagrant or insubordinate as to cause substantial disruption in the workplace, based on all relevant circumstances, including but not limited to: (a) place or forum in which the speech occurred; (b) its subject matter; (c) nature of what occurred; and (d) the extent to which the speech was provoked. (SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19; Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 21-23; Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14.)