Decision 1975M – County of Merced
SA-CE-502-M
Decision Date: September 5, 2008
Decision Type: PERB Decision
Description: AFSCME alleged that the County retaliated against an employee for using union representation in a dispute over proposed discipline by denying him an extension of medical leave, providing him with a notice of termination and notice to vacate his County-owned residence, terminating him and changing the locks to the park where the residence was located.
Disposition: The Board adopted the Board agent’s warning and dismissal letters finding that the charge failed to allege facts establishing a nexus between the employee’s protected activity and the County’s adverse actions against him. The Board also found no good cause to consider allegations raised for the first time on appeal.
Perc Vol: 32
Perc Index: 137
Decision Headnotes
300.01000 – In General
Employee’s use of union representation in dispute with employer over proposed suspension of employee was protected activity under MMBA.
300.04000 – Individual/Concerted/Activities/Self-Representation
Employee’s use of union representation in dispute with employer over proposed suspension of employee was protected activity under MMBA.
300.17000 – Other
Employee’s use of union representation in dispute with employer over proposed suspension of employee was protected activity under MMBA.
503.01000 – In General
Unequivocal notice of the employer’s intent to impose discipline is an adverse action. Letter to employee stating that he was absent without leave and would be terminated unless he returned to work by a specific date was not adverse action because it did not indicate the employer had made a firm decision to terminate the employee. Notice for employee to vacate employer-provided residence was adverse action because it unequivocally stated employer’s intent to eliminate a term or condition of employment.
503.03000 – Warning Letters, Reprimands, Evaluations
Unequivocal notice of the employer’s intent to impose discipline is an adverse action. Letter to employee stating that he was absent without leave and would be terminated unless he returned to work by a specific date was not adverse action because it did not indicate the employer had made a firm decision to terminate the employee. Notice for employee to vacate employer-provided residence was adverse action because it unequivocally stated employer’s intent to eliminate a term or condition of employment.
503.13000 – Employer-Owned Housing
When employee is entitled to reside in employer-owned residence as a term or condition of employment, requiring employee to vacate the residence is an adverse action.
1100.05000 – Dismissal of Charge; Appeal
Under PERB Regulation 32635(b), the Board may not consider new allegations or supporting evidence raised for the first time on appeal unless the charging party establishes good cause. No good cause to consider new allegations raised on appeal when the information underlying the allegations could have been obtained through reasonable diligence prior to the Board agent’s dismissal of the charge.