Decision 2072S – State of California (Department of Social Services)
SF-CE-240-S
Decision Date: October 27, 2009
Decision Type: PERB Decision
Description: The complaint alleged that the State of California (Department of Social Services) violated the Dills Act by (1) denying an employee the right to be represented by his employee organization at a meeting to discuss his behavior; and (2) retaliating against the employee for engaging in protected activity by issuing him memoranda, placing him on administrative leave as part of the process to reject him on probation, and failing to reinstate him following his separation from employment.
Disposition: The Board upheld the dismissal of the complaint, finding no retaliation. The Board also found that the employee’s right to representation was not violated when the employer ceased its questioning as soon as the employee requested representation.
Perc Vol: 33
Perc Index: 177
Decision Headnotes
408.03000 – Investigatory Interviews
During telephone conversation about employee’s behavior, employee’s assertion that he would not answer any questions without a representative, coupled with his attempt to obtain additional information, was sufficiently clear to establish that an investigatory meeting occurred that employee reasonably believed might result in disciplinary action, and employee communicated a request for representation. Employer did not unlawfully deny representation, where, after asking three times if the employee had any information to provide, it ceased questioning and terminated the interview.
503.01000 – In General
Two draft memoranda setting forth employer’s expectations did not constitute adverse action, where memoranda were never issued to employee or placed in employee’s personnel file.
503.03000 – Warning Letters, Reprimands, Evaluations
Two draft memoranda setting forth employer’s expectations did not constitute adverse action, where memoranda were never issued to employee or placed in employee’s personnel file.
505.01000 – In General
The State met its burden of establishing that it was motivated by legitimate business reasons in deciding first to place employee on administrative time off (ATO) and then to reject him on probation.
505.11000 – Legitimate Business Purpose/Business Necessity
The State met its burden of establishing that it was motivated by legitimate business reasons in deciding first to place employee on administrative time off (ATO) and then to reject him on probation.
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Complaint alleging that placement of employee on administrative leave (ATO) as part of the process to reject him on probation put the employer on notice that the decision to reject employee on probation was included within the scope of the complaint. The decision to reject the employee on probation was properly included within the scope of the hearing, given that the employer presented substantial evidence to explain the basis for its decision, the decision was intimately related to the decision to place him on ATO, the rejection decision was fully litigated and the parties had ample opportunity to examine and cross-examine on the issue.
1103.01000 – In General
Complaint alleging that placement of employee on administrative leave (ATO) as part of the process to reject him on probation can reasonably be construed to include the rejection on probation as part of the alleged adverse action.
1105.01000 – In General
Complaint alleging that placement of employee on administrative leave (ATO) as part of the process to reject him on probation put the employer on notice that the decision to reject employee on probation was included within the scope of the complaint.
1105.02000 – Background Evidence and Matters Not Alleged
Complaint alleging that placement of employee on administrative leave (ATO) as part of the process to reject him on probation put the employer on notice that the decision to reject employee on probation was included within the scope of the complaint. The decision to reject the employee on probation was properly included within the scope of the hearing, given that the employer presented substantial evidence to explain the basis for its decision, the decision was intimately related to the decision to place him on ATO, the rejection decision was fully litigated and the parties had ample opportunity to examine and cross-examine on the issue.