All notes for Subtopic 300.15000 – Speech
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2865E | Mt. San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The Board found EERA protects on its face Firtha’s communication to the Academic Senate that she and another employee lost their department chair positions in retaliation for safety complaints. (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 26.) If an employer challenges the accuracy of speech, the employer faces a heightened burden, and it 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. Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. The District’s assertion that Brown believed the comments were untrue does not establish by clear and convincing evidence that the statements were maliciously false. (pp. 23-24.) more or view all topics or full text. | 48 | 15 | 06/28/23 |
| 2865E | Mt. San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech 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.) more or view all topics or full text. | 48 | 15 | 06/28/23 |
| 2495E | Walnut Valley Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The right to “form, join, and participate” in union activities includes protesting a management directive regarding educational policy, curriculum issues, or other matter of obvious collective concern. Employee need not know the concerns of, or attempt to enlist, other employees. Employee need not know the concerns of, or attempt to enlist, other employees. If the employee is covered by EERA and raises a concern about a matter that is implicitly part of the employment relationship, then the conduct also falls within the right of self-representation. more or view all topics or full text. | 41 | 34 | 06/30/16 |
| 2797E | Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Conduct included in a disciplinary notice was protected by EERA because Union president was acting in his capacity as Union president in representing bargaining unit members in their relations with the District. The District failed to meet its burden of showing any behavior that was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference [in the workplace]” as to lose statutory protection. (See Pomona Unified School District (2000) PERB Decision No. 1375, p. 16 [finding a letter that used “forceful but not abusive” language to describe the author’s displeasure with how school administration had represented her employment status to third parties retained its statutory protection because it was the type of conduct “that labor relations personnel are likely to encounter at least occasionally in the routine course of business”].) more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2797E | Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech 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.) more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2797E | Carpinteria Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech EERA generally protects union and employee speech related to legitimate labor and employment concerns. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15.) For instance, an employee is typically protected in criticizing management, working conditions, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Because labor and employment disputes tend to engender ill feelings and strong responses, the parties are afforded wide latitude to engage in “uninhibited robust, and wide-open debate” during those disputes. (City of Oakland (2014) PERB Decision No. 2387-M, p. 23.) Public employees’ right to engage in concerted activities therefore permits them some leeway for “impulsive” and “intemperate” behavior, including moments of “animal exuberance.” (Ibid.) more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2712M | City and County of San Francisco 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee speech is protected if it is “related to matters of legitimate concern to the employees as employees so as to come within the right to participate in the activities of the employee organization for the purpose of representation on matters of employer-employee relations.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15, quoting Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12.) more or view all topics or full text. | 44 | 173 | 05/06/20 |
| 2611M | County of Orange 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, the Board analyzes whether the manner in which the employee communicated was so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection. (p. 8.) more or view all topics or full text. | 43 | 101 | 12/19/18 |
| 2586E | Chula Vista Elementary School District (Yvellez) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee speech, including emails, is generally protected if it relates to matters of legitimate concern to employees as employees, though it may lose its statutory protection in accordance with Rancho Santiago Community College District (1986) PERB Decision No. 602. more or view all topics or full text. | 43 | 60 | 09/28/18 |
| 2586E | Chula Vista Elementary School District (Yvellez) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, e.g., applies to how the speech was made, the speech is protected unless it is so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection. more or view all topics or full text. | 43 | 60 | 09/28/18 |
| 2591M | County of Riverside 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech PERB precedent encourages the parties to respond to problematic speech with more speech, rather than via retaliatory discipline. more or view all topics or full text. | 43 | 66 | 10/23/18 |
| 2591M | County of Riverside 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. Employee terminated for making allegedly unfounded assertions about working conditions in federal court litigation reinstated where statements found to be protected; employer did not show by clear and convincing evidence that employee exhibited actual malice in making assertions. more or view all topics or full text. | 43 | 66 | 10/23/18 |
| 2591M | County of Riverside 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected. more or view all topics or full text. | 43 | 66 | 10/23/18 |
| 2605E | Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech EERA protects employee speech if it is “‘related to matters of legitimate concern to the employees as employees so as to come within the right to participate in the activities of an employee organization for the purpose of representation on matters of employer-employee relations.’” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15 (Chula Vista), quoting Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12 (Rancho Santiago).) An individual employee’s criticism of management or working conditions is protected activity when its purpose is to advance other employees’ interests or when it is a logical extension of group activity. (Chula Vista, supra, at p. 15, citing Trustees of the California State University (2017) PERB Decision No. 2522-H, p. 16.) Additionally, speech that concerns the “‘autonomy and effectiveness of the exclusive representative’” falls into the category of protected speech. (Chula Vista, supra, at p. 15, citing Rancho Santiago, supra, at p. 12.) Thus, critical statements about union leadership typically are protected. (Chula Vista, supra, at p. 16; Rio School District (2015) PERB Decision No. 2449, adopting proposed decision at p. 24.) (pp. 7-8.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2605E | Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Because “not every impropriety committed during [otherwise protected] activity places [an] employee beyond the protective shield of the [A]ct” (City of Oakland (2014) PERB Decision No. 2387-M, pp. 23-24), employee speech that is related to employer-employee relations will generally not lose its statutory protection unless it is so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference” with the employer’s operations. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16 (internal quotation marks omitted); City of Oakland, supra, PERB Decision No. 2387-M, p. 24; Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13; Pomona Unified School District (2000) PERB Decision No. 1345, p. 16 (Pomona).) (p. 10.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2605E | Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Test to determine whether the manner in which an employee engaged in face-to-face communications with a manager or supervisor loses statutory protection is conduct-based and analyzes whether it is so “opprobrious” and disruptive to operations that otherwise-protected communication loses statutory protection. (p. 11.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2605E | Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee’s speech loses statutory protection if an objective observer would view it as an actual threat of physical harm. (p. 9.) Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) Board adopts an objective test to determine whether an alleged threat is so “opprobrious” that it loses statutory protection. (p. 13.) Board must make fact-specific inquiry into all relevant circumstances to distinguish between intemperate remarks and actual threats of physical harm. (p. 14.) Board found that, in context, employee’s words were not objectively physical threats, where words were expressly metaphorical, and they were not accompanied by any physical conduct or other facts indicating that the words were a physical threat rather than a metaphor. more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2593H | Regents of the University of California (Irvine) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech During work time, employer may not restrict discussions related to union matters while permitting other non-work discussions. more or view all topics or full text. | 43 | 69 | 10/26/18 |
| 2563E | Napa Valley Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech In general, an employee’s speech is protected if it is related to matters of legitimate concern to the employees as employees. more or view all topics or full text. | 42 | 154 | 05/25/18 |
| 2563E | Napa Valley Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The right of discussion is not limited to conversations about matters specific to the bargaining unit. School employees and employee organizations have a right to communicate at the worksite, free from employer restriction, about specific terms and conditions of employment as well as matters of more general political, social or economic concern to employees. This right is limited if the relationship between the political activity and the employment relationship is so attenuated as to lose its protection. more or view all topics or full text. | 42 | 154 | 05/25/18 |
| 2563E | Napa Valley Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Speech advocating a change in federal spending priorities on education was not so attenuated from the legitimate subject of instructor pay as to lose its protection. more or view all topics or full text. | 42 | 154 | 05/25/18 |
| 2522H | Trustees of the California State University 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Allegation that employer’s agent told probationary employee she “should not talk to anyone about the investigation” of a fellow employee’s complaint of abusive treatment against supervisor stated prima facie case of interference with protected rights, since, on its face and without further explanation, a directive not to talk to “anyone” could reasonably be construed to prohibit contacting union representatives, or enlisting the support of other employees for the complaint. (p. 22.) To the extent that an employer’s directive or policy of maintaining “confidentiality” of investigations into employee grievances “muzzles” employees who seek to engage in concerted activity for mutual aid or protection by denying them the very information needed to discuss their wages, hours or working conditions, it necessarily harms employee rights. (p. 21.) Once it is established that the employer’s prohibition on discussing wages, hours or working conditions adversely affects protected rights, the burden falls on the employer to demonstrate “legitimate and substantial business justifications” for its conduct. (21-22.) To overcome a presumption of invalidity stemming from a vague or overinclusive rule, the employer must make it clear to employees that the thrust of an inexplicitly-worded confidentiality rule is not to prohibit discussion of their terms and conditions of employment. (Ibid.) more or view all topics or full text. | 41 | 150 | 03/20/17 |
| 2449E | Rio School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Comments during governing board meetings pertaining to both the financial status of the employer and the quality of the employer’s education programs constitute protected activity. Comments about the quality of the union’s representation in negotiations constitute protected activity. more or view all topics or full text. | 40 | 45 | 08/31/15 |
| 2282S | State of California (Department of Corrections and Rehabilitation) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Steward’s dismissive gesture towards a supervisor in the course of her representational activities was protected speech and conduct. Party representatives are accorded significant latitude in their representational speech and conduct. Employee speech and conduct are protected under the Dills Act when related to matters of legitimate concern to employees. Discipline for such speech is appropriate only when the employer demonstrates that the speech or action was so disruptive as to lose its presumptively protected status. more or view all topics or full text. | 37 | 55 | 08/21/12 |
| 1986E | Rio School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee organization president’s accusations at school board meeting that school administrators were not properly evaluating teachers constituted protected activity because accusations related to legitimate matters of concern about employer-employee relations and were not so disruptive as to lose protection. more or view all topics or full text. | 33 | 8 | 11/21/08 |
| 1979C | Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563, where the Board held that employees who have access to an employer’s e-mail system as part of their job duties have a right to use that system to engage in EERA-protected communications on nonwork time. * * *An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer. more or view all topics or full text. | 32 | 151 | 10/07/08 |
| 1508E | San Marcos Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Non-disruptive informational picketing is protected activity under EERA; it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. The Board need not and does not speculate regarding the status or definition of other forms of picketing under EERA. more or view all topics or full text. | 27 | 27 | 01/16/03 |
| 1520E | Contra Costa Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee’s statement that he was not unsympathetic to faculty members organizing a no confidence vote is a statement of support of faculty members protesting management practices on matters within scope and therefore protected activity. more or view all topics or full text. | 27 | 69 | 05/08/03 |
| 1371E | Wilmar Union Elementary School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The campaign sign was not simply a communication between employees and their employee organization at the worksite; p. 17. more or view all topics or full text. | 24 | 31053 | 02/09/00 |
| 1375E | Pomona Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Charging party's letters were uncomplimentary to employer and expressed belief that she had been wronged but did not lose their protection as "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice" as to cause "substantial disruption of or material interference with school activities." (Rancho Santiago Community College District (1986) PERB Decision No. 602.) more or view all topics or full text. | 24 | 31060 | 02/28/00 |
| 1365S | State of California (Employment Development Department) * * * SUPERSEDED by State of California (Employment Development Department) (2001) PERB Decision No. 1365a-S 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech * * * SUPERSEDED IN PART by State of California (Employment Development Department) (2001) PERB Decision No. 1365a-S, where the Board held with respect to a memorandum issued in response to unprotected activity that an employer must restrict any future prohibition to only unprotected activities and cannot use ambiguous language that may also include protected activity. * * *Thirty employees conducted the unity break during their morning break in the Long Beach EDD office, they did so in a work area in which approximately 30 other employees were at their work stations on duty. Therefore, the unity break activity did not occur during nonwork time in a nonwork area and EDD may restrict the activity in order to maintain order and production; pp. 10-11. Activities such as the unity break at issue in this case may be restricted by the employer if they do not occur during nonwork time in nonwork areas. In these circumstances, the employer must be given leeway to restrict those activities in order to maintain order, production or discipline. This would include situations in which the employees conducting the activities are on nonwork time, but the activities occur in a work area during a period in which other employees are working; p. 10. more or view all topics or full text. | 24 | 31026 | 12/17/99 |
| 0602E | Rancho Santiago Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech An employee's newsletter articles criticizing the employers' administration is protected speech if it relates to matters of legitimate concern to employees as employees and is not opprobrious, flagrant, insulting, defamatory, insubordinate or fraught with malice as to cause substantial disruption of or material interference with school activities. Exaggerated and over stated language is not, by itself, enough where described events are widely known; pp. 12-13. more or view all topics or full text. | 11 | 18021 | 12/30/86 |
| 2485E | Petaluma City Elementary School District/Joint Union High School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Similar to union access and released time for employee representatives, PERB regards employee rights to communicate, solicit and distribute information at work as encompassing both statutory rights and negotiable matters. The statutory right of employees to be represented by employee organizations generally includes the right to communicate with one another about working conditions, to show allegiance to the organizations of their choice and to express solidarity with other employees for the purpose of representation or for other mutual aid or protection. A categorical prohibition against distributing literature or other means of communication states a prima facie case of employer interference with fundamental rights of employee organizations to represent and communicate with employees and of employees to self-organize and communicate with one another in the workplace. more or view all topics or full text. | 41 | 23 | 06/30/16 |
| 1755H | Trustees of the California State University (Sonoma) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee criticism of a supervisor on employment-related subjects is protected when its purpose is to advance the employees' interests in working conditions; p. 6. more or view all topics or full text. | 29 | 97 | 03/01/05 |
| 0449H | Regents of the University of California (California State Employees Association) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Criticism of a supervisor on employment-related subjects is protected when its purpose is to advance the employees' interests in working conditions. more or view all topics or full text. | 9 | 16014 | 12/04/84 |
| 0368E | San Diego Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Speech concerning wages and hours of unit employees who were officers of Hourly Faculty Senate fell with definition of "employment relations" and was protected; pp. 16-17. more or view all topics or full text. | 8 | 15009 | 12/22/83 |
| 0304S | State of California (Department of Transportation) 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Inaccuracies and exaggeration are not rendered unprotected under the Act; it is only when the statements are made maliciously and are untrue, or with reckless disregard for the truth or falsity; pp. 33-34. more or view all topics or full text. | 7 | 14134 | 04/26/83 |
| 0260E | Rio Hondo Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee speech loses its protected status only if it is so opprobrious or disrespectful of the employer as to seriously impair maintenance of discipline; utterance of the word "chickenshit" is not unprotected; p. 12. more or view all topics or full text. | 7 | 14010 | 11/30/82 |
| 0230E | San Ramon Valley Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Union officer's attempted speech before the school board constituted protected activity, where officer was advocating for the union as opposed to negotiating a union position. more or view all topics or full text. | 6 | 13184 | 08/09/82 |