Decision 2161M – City of Alhambra
LA-CE-513-M
Decision Date: February 8, 2011
Decision Type: PERB Decision
Description: The complaint alleged that the City rejected Salas on probation because he made protected complaints about working conditions.
Disposition: The Board reversed the ALJ’s proposed decision and held that the City did not retaliate against Salas because of protected activity. The Board found that Salas’ complaints were not protected because they were for his sole benefit and that the City would have rejected him on probation despite the complaints based on his inability to get along with his supervisor and co-workers and his expressed unwillingness to work at the required level.
Perc Vol: 35
Perc Index: 36
Decision Headnotes
300.01000 – In General
Under the MMBA’s right of self-representation, individual employee complaints to the employer are protected only when they are a logical continuation of group activity and are not undertaken solely for the employee’s benefit. Employee’s complaints during staff meeting that his supervisor worked employees too hard were not protected because they expressed his personal dislike of the supervisor’s management style and were not connected to group activity.
300.04000 – Individual/Concerted/Activities/Self-Representation
Under the MMBA’s right of self-representation, individual employee complaints to the employer are protected only when they are a logical continuation of group activity and are not undertaken solely for the employee’s benefit. Employee’s complaints during staff meeting that his supervisor worked employees too hard were not protected because they expressed his personal dislike of the supervisor’s management style and were not connected to group activity.
300.06000 – Demands for Change in Working Conditions
Under the MMBA’s right of self-representation, individual employee complaints to the employer are protected only when they are a logical continuation of group activity and are not undertaken solely for the employee’s benefit. Employee’s complaints during staff meeting that his supervisor worked employees too hard were not protected because they expressed his personal dislike of the supervisor’s management style and were not connected to group activity.
300.17000 – Other
Under the MMBA’s right of self-representation, individual employee complaints to the employer are protected only when they are a logical continuation of group activity and are not undertaken solely for the employee’s benefit. Employee’s complaints during staff meeting that his supervisor worked employees too hard were not protected because they expressed his personal dislike of the supervisor’s management style and were not connected to group activity.
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation
Rejection on probation is an adverse action.
504.04000 – Timing of Action
Timing factor established when an employee was rejected on probation approximately eight hours after making complaints in a staff meeting.
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications
An employer’s failure to offer justification at the time it took an adverse action is not a reliable indicator of discriminatory intent unless the employer was required by law, policy, or past practice to give a reason for the action. No inference of unlawful motive drawn when an employer told an employee he was being rejected on probation because he “no longer fit into the organization” and the record did not establish that the employer was required to give a more specific reason.
504.08000 – Cursory Investigation
An employer’s failure to investigate allegations that an employee did not get along with his supervisor and co-workers, and had returned from the job site early on two days, before rejecting the employee on probation supported an inference of unlawful motive.
504.14000 – Other/In General
Employee established a prima facie case of retaliation when: (1) he was rejected on probation the same day he made complaints in a staff meeting; and (2) the employer did not investigate allegations that the employee did not get along with his supervisor and co-workers, and had returned from the job site early on two days. The employer’s statement to the employee that he was being rejected on probation because he “no longer fit into the organization” did not support an inference of unlawful motive because the employer was not required by law, policy, or past practice to give a specific reason for rejecting an employee on probation.
505.01000 – In General
Employer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work.
505.06000 – Inefficiency or Incompetence
Employer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work.
505.07000 – Offensive Personal Characteristics
Employer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work.
505.13000 – Other
Employer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
PERB Regulation 32300(a) provides that exceptions must be filed within 20 days of the date of service of the proposed decision. PERB Regulation 32130(c) provides an additional five days to file exceptions when the proposed decision is served by mail. Because the proposed decision was served on the respondent by mail, its exceptions filed 25 days after the date of service were timely.
1503.02000 – Regulations Considered (By Number)
PERB Regulation 32300(a) provides that exceptions must be filed within 20 days of the date of service of the proposed decision. PERB Regulation 32130(c) provides an additional five days to file exceptions when the proposed decision is served by mail. Because the proposed decision was served on the respondent by mail, its exceptions filed 25 days after the date of service were timely.