Decision 1263H – Regents of the UC (UPTE)

LA-CE-423-H; LA-CE-456-H

Decision Date: April 28, 1998

Decision Type: PERB Decision

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Perc Vol: 22
Perc Index: 29090

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

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.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

Threats are deemded to be interference with portected rights under section 3571 because they tend to or do result in harm to employee rights; p. 43; In general, whether particular comments constitute an unlawful threat depends on the circumstances in which they occurred. A statement may be considered an implied threat of adverse action, depending on the manner in which it was delivered and other surrounding circumstances; p. 45. 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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.04000 – 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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech

Cases construing the employer's right of free speech establish that a statement containing a threat of reprisal loses its protection, and will be found unlawful if the employer shows no overriding operational necessity justifying it; p. 44.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

In order to prevail on a claim of retaliation, the charging party must establish that he engaged in protected activity, that the activity was known to the employer, and that the employer took adverse action because of such activity. The adverse action must involve actual, rather than merely speculative, harm; it must satisfy an objective, "reasonable man" standard considering the impact on the employee's conditions of employment; pp. 47-48. 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 fraught with malice"; p. 46. An employer may expect that employee activity be carried out in a

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Employees' submission of "potential sick leave" notices was protected activity; p. 50.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Involuntary transfer or reassignments of employee was adverse action, despite the fact that employee did not suffer loss of pay or benefits; p. 52.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

Evidence that disciplinary letter and employee's suspension and medical separation were retaliatory included timing, disparate treatment, departure from standard procedures; and exaggerated justification; pp. 55-67.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Evidence that disciplinary letter and employee's suspension and medical separation were retaliatory included timing, disparate treatment, departure from standard procedures; and exaggerated justification; pp. 55-67.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Evidence that disciplinary letter and employee's suspension and medical separation were retaliatory included timing, disparate treatment, departure from standard procedures; and exaggerated justification; pp. 55-67.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Evidence that disciplinary letter and employee's suspension and medical separation were retaliatory included timing, disparate treatment, departure from standard procedures; and exaggerated justification; pp. 55-67.