Decision 2237S – State of California (Board of Equalization)

SA-CE-1849-S

Decision Date: February 7, 2012

Decision Type: PERB Decision

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Perc Vol: 36
Perc Index: 121

Decision Headnotes

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.03000 – Investigatory Interviews

Where meeting was 10 to 15 minutes, purpose of meeting was informative and instructional, and charging party was not questioned, meeting was not an “investigatory interview” for purposes of determining whether the respondent violated charging party’s Weingarten rights to union representation during the meeting; in order to establish a Weingarten violation, the nature of the meeting must be investigatory, i.e., a questioning session, interrogation or interview.

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

A corrective memorandum referencing inappropriate actions taken by charging party “regarding the grievance issue” was not direct evidence of unlawful motive; where charging party admitted that his requests for union time off from work to prepare grievances were never denied, charging party failed to establish that a corrective memorandum issued to charging party advising him that grievances were to be prepared outside the work area constituted evidence of unlawful motive.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

Corrective memorandum was not issued in retaliation for engaging in protected activity of preparing a grievance but because charging party insisted on preparing the grievance in an open print shop rather than in a quiet and private area arranged for by management.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.07000 – Bias or Prejudice/Motion to Disqualify

Unless the administrative law judge makes statements indicating a clear predisposition against a party, no bias or prejudice is established; where charging party asserted that the administrative law judge was subjected to an improper attempt by the witness for the respondent to bond with her by referring to the format of the documents being the same as when the administrative law judge worked at the State Personnel Board, charging party failed to establish bias or prejudice as a basis for challenging the authentication of an exhibit entered into evidence at hearing.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

When the Board considers the record, it is free to draw its own and perhaps contrary inferences from evidence; it is a well-established principle, however, that the Board will defer to credibility determinations of the administrative law judge absent evidence to support overturning such conclusions; where charging party asserted that he was more credible than witness for the employer because the administrative law judge incorporated his undisputed testimony into the findings of fact, he was consistent in his own account of what occurred, and his supervisor did not know of any instances in which he lied, credibility determination in favor of witness for employer was not overturned.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

When the Board considers the record, it is free to draw its own and perhaps contrary inferences from evidence; it is a well-established principle, however, that the Board will defer to credibility determinations of the administrative law judge absent evidence to support overturning such conclusions; where charging party asserted that he was more credible than witness for the employer because the administrative law judge incorporated his undisputed testimony into the findings of fact, he was consistent in his own account of what occurred, and his supervisor did not know of any instances in which he lied, credibility determination in favor of witness for employer was not overturned.