Decision 1435S – State of California (Department of Corrections)

Acting as a job steward, employee who said he would contact union for legal advise if investigation blocked his promotion and might go to newspapers with health and safety concerns are protected acts.

Acting as a job steward, employee who said he would contact union for legal advise if investigation blocked his promotion and might go to newspapers with health and safety concerns are protected acts.

Acting as a job steward, employee who said he would contact union for legal advise if investigation blocked his promotion and might go to newspapers with health and safety concerns are protected acts.

The Board rejected the State's claim that comments uttered by charging party were violative of PERB case law governing speech in the workplace. To decide whether speech is lawful, a principal consideration is whether the speech contains a "threat of reprisal or force," under an objective rather than a subjective standard. The fact that an employer may interpret statements, which are otherwise protected, as coercive does not necessarily render those statements unlawful. Statements are viewed in their overall context to determine if they have a coercive meaning; pp. 36-43, proposed dec. Board rejected State's claims that charging party was guilty of misconduct with regard to the acts leading up to the investigation, and that he was dishonest during the investigation itself, finding that his acts did not justify adverse action under the circumstances presented; pp. 43-47, proposed dec.

Individual complaints about employment matters, including threats to go to the newspapers, are protected as part of an employee's right to self representation. Even assuming charging party made the comment attributed to him in the letter of reprimand, it would still be protected. The statements related to employment conditions, and there was no merit to the claim that charging party was disloyal or that his comments were untrue; pp. 32-36 proposed dec. Acting as a job steward, employee who said he would contact union for legal advise if investigation blocked his promotion and might go to newspapers with health and safety concerns are protected acts. The Board rejected the State's claim that comments uttered by charging party were violative of PERB case law governing speech in the workplace. To decide whether speech is lawful, a principal consideration is whether the speech contains a "threat of reprisal or force," under an objective rather than a subjective standard. The fact that an employer may interpret statements, which are otherwise protected, as coercive does not necessarily render those statements unlawful. Statements are viewed in their overall context to determine if they have a coercive meaning; pp. 36-43, proposed dec.

The State argued that there was no evidence to impute the knowledge of charging party's supervisors to the warden. In rejecting this argument, the Board found that the letter of reprimand itself cited a protected act as a key reason for the discipline. Unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials; pp. 31-32, proposed dec.