Decision 2161M – City of Alhambra

LA-CE-513-M

Decision Date: February 8, 2011

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 35
Perc Index: 36

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

Rejection on probation is an adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.