Decision 1979C – Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563

LA-CE-2-C

Decision Date: October 7, 2008

Decision Type: PERB Decision

 * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563 * * *

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Perc Vol: 32
Perc Index: 151

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

An employer’s use of a particular internal means of communication to state its position on labor relations issues does not entitle a union to use that same means, unless the union can show it has no effective alternate means of communicating its position to employees. Employer’s use of broadcast e-mail messages to update employees about ongoing collective bargaining did not require the employer to grant the union an exemption from its policy prohibiting broadcast e-mails so the union could state its views on labor relations issues via broadcast e-mail, especially when the record clearly showed that the union had ample alternate means of communicating with employees regarding collective bargaining.

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

Even though the complaint characterized it as interference, allegation in the charge that the employer suspended the employee because of the employee’s protected activity should be analyzed under the discrimination standard.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.02000 – Suspension, Dock in Pay

Notice of intent to suspend and suspension itself were both adverse actions.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.12000 – Employer Statements or Conduct; Threats

An employer’s statement that it is taking adverse action against an employee because of the employee’s protected activity provides direct evidence of the employer’s unlawful motivation and is sufficient in itself to establish the required nexus between the employee’s protected activity and the employer’s adverse action. Employer’s written statement that the employee was being suspended for using the employer’s e-mail system “to conduct union business” and for using the employer’s facilities “for union business without prior authorization” constituted direct evidence of the employer’s unlawful motivation sufficient to establish nexus.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

To establish the “but for” affirmative defense in mixed conduct cases, where discipline is based on both protected and unprotected activity, the employer bears the burden of showing it would have imposed the same discipline for the unprotected conduct standing alone as it imposed for the mixed conduct. Board found that the employer would have suspended the employee based solely on the employee’s unprotected activity and therefore the employee’s protected activity was not the true motivation behind the employer’s adverse action. PERB has no authority to determine the appropriate level of discipline for unprotected activity.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

The Board may review violations not alleged in complaint when all of the following requirements are met: (1) adequate notice and opportunity to defend has been provided to the respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on this issue; and (5) the unalleged violation must be within the applicable statute of limitations. Though the complaint alleged only interference, the Board could consider discrimination allegation arising out of the same facts because parties had extensively litigated whether the employer applied its e-mail use policy to an employee’s union e-mails in a discriminatory manner and in its post-hearing brief the employer defended against the allegation on the alternative grounds of interference and discrimination.