Decision 2237S – State of California (Board of Equalization)
SA-CE-1849-S
Decision Date: February 7, 2012
Decision Type: PERB Decision
Description: The charge and complaint alleged that the Board of Equalization denied charging party the right to be represented by his employee organization at an investigatory meeting and retaliated against him for engaging in protected activities.
Disposition: The Board affirmed a proposed decision dismissing the unfair practice charge, concluding that Weingarten rights did not attach to the meeting and there was insufficient nexus between the protected activity and the adverse action for purposes of proving a discrimination/retaliation violation.
Perc Vol: 36
Perc Index: 121
Decision Headnotes
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.
504.12000 – 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.
505.03000 – 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.
1104.07000 – 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.
1105.14000 – 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.
1107.02000 – 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.