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

SA-CE-1184-S

Decision Date: May 11, 2001

Decision Type: PERB Decision

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Perc Vol: 25
Perc Index: 32068

Decision Headnotes

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

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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.13000 – Holding Union Office

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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.05000 – Dishonesty or Disloyalty to Employer

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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of Knowledge of Protected Activity

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.