All notes for Subtopic 409.04000 – Union or Employee Misconduct

DecisionDescriptionPERC Vol.PERC IndexDate
2687H Trustees of the California State University (Northridge)
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
Factors which PERB considers where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct may vary from caes where employer asserts a business justification defense. (See p. 5, citing Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31 [employer may investigate if it has a valid reason for legitimately believing employee went beyond the bounds of protected activity and engaged in misconduct, but if employer subsequently learns that the facts do not support this belief, the employer must immediately cease the investigation and notify all affected employees regarding its outcome]; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 22-23 [employer’s surveillance unlawful, even though it was intended to document a union’s potential access violation, because the underlying access policy was not lawful].) more or view all topics or full text.
12/13/19
2687H Trustees of the California State University (Northridge)
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.) more or view all topics or full text.
12/13/19
2556M County of San Bernardino
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
County agent’s belief that union organizers were violating access policy was not a defense to unlawful surveillance, where the access policy was itself unlawful. more or view all topics or full text.
4211403/06/18
2440E Capistrano Unified School District
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
The protections afforded by EERA should extend to circumstances in which a representative could have prevented an employee from losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct in the course of the employer’s investigation, and thereby giving the employer additional or alternative grounds for discipline. The right to representation protects employees from not only their admissions as a result of an unlawful interview but from their conduct, including misconduct, occurring as a result of an unlawful interview. Employer who refuses employee’s request for representation with assurance that no discipline will ensue may not then impose discipline as a result of the interview. Protected conduct does not cease to be protected simply because the employer regards the employee as insubordinate. Where employee effectively communicated her desire for representation to supervisor, in the absence of evidence that she had reconsidered or waived her right to representation, her subsequent refusal to respond to supervisor’s questioning was protected and not a proper basis for discipline. more or view all topics or full text.
402406/30/15
1766M City of Monterey
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
This case is distinguishable from Upland Police Officers Association et al. v. City of Upland (2003) 111 Cal. App. 4th 1294 [4 Cal. Rptr. 3d 629], in which the union attorney for a police officer postponed several meetings before the police department informed the officer that he could select another representative. In the instant matter, McCormick did not seek to postpone the hearing or otherwise interfere with the hearing but rather to remain in the hearing as a representative. The City’s concern that the union’s request for multiple representatives might prove disruptive is highly exaggerated and not a valid basis for interfering with protected rights. more or view all topics or full text.
2913005/20/05

409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
County ordinance labeled an urgency measure effective immediately and declared necessary to "protect the public health and safety" and "to prevent the substantial impairment of County departmental operations" allowing suspension of employees during rolling job actions found valid. more or view all topics or full text.
1263H Regents of the University of California (University Professional and Technical Employees)
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
Although employees could reasonably have inferred employer's statement that employees "could lose their jobs" if they elevated a protest regarding sick leave policy carried the threat of dismissal, statement was not unlawful because it was excusable under the circumstances; pp. 45-46. PERB has held that an "employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect." An activity loses its protected character when the activity is "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice"; p. 46. An employer may expect that employee activity be carried out in a lawful manner through the pursuit of lawful means; p. 47; Notices asserting "possible" sick leave are protected. lawful manner through the pursuit of lawful means; p. 47; Notices asserting "possible" sick leave are protected. more or view all topics or full text.
222909004/28/98
0628E Woodland Joint Unified School District
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
Evidence fails to support defense that employee engaged in misconduct. more or view all topics or full text.
111812106/30/87
0224E Mt. San Antonio Community College District
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
Teachers were improperly disciplined for distributing leaflets (at graduation) which were critical of District's fiscal management. Content of leaflets and activity of teachers did not lose protected status since their efforts related to legitimate labor dispute. Fact that the issues are not negotiable subjects not determinative since they are matters on which the union has consultation rights. Thus, teachers' actions fell within right to participate in activities of employee organization. Leaflet not opprobious, malicious or defamatory in context; pp. 5-7. more or view all topics or full text.
61316306/30/82
0217E Konocti Unified School District
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
Employee activity - bus driver made unauthorized stop to address captive audience of students about upcoming strike and that classified employees would appreciate support, including non-attendance at school or having parents call school on behalf of strikers - unprotected. Actions conducted in an indefensible manner, on duty time, to captive audience, interrupting duties to conduct union business without authorization and in violation of work rules; pp. 7-9. more or view all topics or full text.
61315206/29/82
0188E John Swett Unified School District
409.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct
District agent's chastisement of employee who conducted a poll among employee which caused dissension among faculty improper interference with right of employee to engage in protected activity. Certain statements of District agent went beyond bounds of operational necessity and had a coercive meaning viewed in overall context rather than being a legitimate problem-solving conversation; pp. 6-7. District's speech related conduct loses its protection when it carries a coercive meaning as to employee exercise of EERA rights; p. 8. more or view all topics or full text.
61301812/21/81