Decision 2591M – County of Riverside

LA-CE-787-M

Decision Date: October 23, 2018

Decision Type: PERB Decision

Description:  Union appealed from an ALJ’s proposed decision dismissing charge. ALJ found that County terminated employee based on employee’s knowingly false statements in a federal First Amendment lawsuit against the County.

Disposition:  In precedential decision, the Board reversed the ALJ’s proposed decision.  The Board found that statements were not made with actual malice and therefore were protected. Accordingly, the County committed unfair practices under MMBA section 3505, subd. (b) by terminating employee for her protected activity.  As a remedy, Board issued cease and desist order and notice posting, and ordered that employee be offered reinstatement and made whole.

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Perc Vol: 43
Perc Index: 66

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

PERB precedent encourages the parties to respond to problematic speech with more speech, rather than via retaliatory discipline.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. Employee terminated for making allegedly unfounded assertions about working conditions in federal court litigation reinstated where statements found to be protected; employer did not show by clear and convincing evidence that employee exhibited actual malice in making assertions.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard.


504.14000 – Other/In General

Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected.