Decision 2072S – State of California (Department of Social Services)

SF-CE-240-S

Decision Date: October 27, 2009

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 177

Decision Headnotes

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.