UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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Although labor and employment disputes may engender ill feelings and strong responses, the law encourages “uninhibited, robust, and wide-open debate,” to overcome these disputes. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 13-14 (Carpinteria), citing City of Oakland (2014) PERB Decision No. 2387-M, p. 23.) Thus, employees’ right to engage in concerted activity permits some leeway for impulsive or intemperate behavior. (Carpinteria, supra, pp. 13-14.) Protected speech may lose its status as such only if the employer meets its burden to prove the speech was “maliciously dishonest or so insubordinate or flagrant as to create a substantial disruption or the serious risk thereof.” (SunLine Transit Agency (2024) PERB Decision No. 2928-M, p. 18, citing San Jacinto, supra, PERB Decision No. 2865, pp. 21-22.) Where the 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, p. 14.) (p. 25.)