Decision 2267M – County of Santa Clara * * * OVERRULED IN PART by Los Angeles Unified School District (2016) PERB Decision No. 2479

SF-CE-646-M

Decision Date: May 25, 2012

Decision Type: PERB Decision

 * * * OVERRULED IN PART by Los Angeles Unified School District (2016) PERB Decision No. 2479 * * *

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Decision Headnotes

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.01000 – In General

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.01000 – In General

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.02000 – Express or Implied Threats

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity. No Weingarten violation established, where employee failed to establish that he made a request for union representation or that the meeting was investigatory in nature.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.02000 – Grievances/Grievance Procedure

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity.

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

Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity. No Weingarten violation established, where employee failed to establish that he made a request for union representation or that the meeting was investigatory in nature.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

Failure to disclose basis for employer’s doubts about veracity of employee’s statements does not demonstrate disparate treatment, departure from standard procedures, or failure to justify.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Failure to disclose basis for employer’s doubts about veracity of employee’s statements does not demonstrate disparate treatment, departure from standard procedures, or failure to justify.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Close timing, without more, is insufficient to demonstrate a nexus between the adverse action and protected conduct.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Evidence that employer discovered additional reasons for termination did nothing to undermine official reason for termination based upon employee’s failure to report for work as directed absent a qualifying medical excuse. Shifting justifications not established.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Evidence failed to establish cursory investigation to support termination based on failure to report for work as directed absent a qualifying medical excuse, where there was little in dispute that would have required investigation. Employee was a victim of his own misunderstanding about his right to be on leave without a medical release. Even this highly charitable view does not reflect animus toward employee’s protected activity.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.01000 – In General; Conduct of Hearing

Claim that ALJ failed to take into account charging party’s medical condition in making credibility determinations at hearing is without merit, where record reflects that ALJ accommodated medical condition by allowing multiple breaks upon request, and there is no evidence in the record to indicate that medical condition or medication affected his ability to testify competently. Communications from county counsel to ALJ concerning communications received from charging party and confirming extension of time, both of which were copied to charging party, did not constitute inappropriate ex parte communications.

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

It is a well-established principle that the Board will give deference to ALJ credibility determinations absent evidence to support overturning such conclusions. Board finds no basis to overturn ALJ’s credibility determinations, factual findings, or legal conclusions.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.19000 – Motion to Reopen Record

When considering a request to reopen the record to admit new evidence, the Board applies the standard set forth in PERB Regulation 32410(a). That standard requires a declaration establishing that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case. New documents fail to meet this standard, where party failed to explain why documents could not have been discovered and submitted previously and failed to demonstrate the relevance of the documents to the issues before the Board or that the proffered evidence impacts or alters the decision in this case.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.01000 – In General

It is a well-established principle that the Board will give deference to ALJ credibility determinations absent evidence to support overturning such conclusions. Board finds no basis to overturn ALJ’s credibility determinations, factual findings, or legal conclusions. Applying standard set forth in PERB Regulation 32410(a), Board finds no good cause to consider new evidence on appeal.