Decision 2605E – * * * JUDICIAL APPEAL PENDING * * * Mount San Jacinto Community College District

LA-CE-5921-E

Decision Date: December 12, 2018

Decision Type: PERB Decision

Description: Mt. Jacinto Community College District (District) excepted to an ALJ’s proposed decision, which found that the District retaliated against charging party Anthony G. Vasek (Vasek) by disciplining him for sending an e-mail to faculty and staff. The District asserted that Vasek’s e-mail was not protected by EERA, and that the e-mail in any event lost its protection because it included threatening language.

Disposition:  The Board affirmed the ALJ’s proposed decision.  The Board further clarified the appropriate test applicable in cases involving allegedly threatening speech.

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Perc Vol: 43
Perc Index: 92

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Filing and pursuing unfair practice charges with PERB are expressly protected under EERA. (p. 8.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

EERA protects employee speech if it is “‘related to matters of legitimate concern to the employees as employees so as to come within the right to participate in the activities of an employee organization for the purpose of representation on matters of employer-employee relations.’” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15 (Chula Vista), quoting Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12 (Rancho Santiago).) An individual employee’s criticism of management or working conditions is protected activity when its purpose is to advance other employees’ interests or when it is a logical extension of group activity. (Chula Vista, supra, at p. 15, citing Trustees of the California State University (2017) PERB Decision No. 2522-H, p. 16.) Additionally, speech that concerns the “‘autonomy and effectiveness of the exclusive representative’” falls into the category of protected speech. (Chula Vista, supra, at p. 15, citing Rancho Santiago, supra, at p. 12.) Thus, critical statements about union leadership typically are protected. (Chula Vista, supra, at p. 16; Rio School District (2015) PERB Decision No. 2449, adopting proposed decision at p. 24.) (pp. 7-8.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Because “not every impropriety committed during [otherwise protected] activity places [an] employee beyond the protective shield of the [A]ct” (City of Oakland (2014) PERB Decision No. 2387-M, pp. 23-24), employee speech that is related to employer-employee relations will generally not lose its statutory protection unless it is so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference” with the employer’s operations. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16 (internal quotation marks omitted); City of Oakland, supra, PERB Decision No. 2387-M, p. 24; Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13; Pomona Unified School District (2000) PERB Decision No. 1345, p. 16 (Pomona).) (p. 10.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Test to determine whether the manner in which an employee engaged in face-to-face communications with a manager or supervisor loses statutory protection is conduct-based and analyzes whether it is so “opprobrious” and disruptive to operations that otherwise-protected communication loses statutory protection. (p. 11.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Employee’s speech loses statutory protection if an objective observer would view it as an actual threat of physical harm. (p. 9.) Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) Board adopts an objective test to determine whether an alleged threat is so “opprobrious” that it loses statutory protection. (p. 13.) Board must make fact-specific inquiry into all relevant circumstances to distinguish between intemperate remarks and actual threats of physical harm. (p. 14.) Board found that, in context, employee’s words were not objectively physical threats, where words were expressly metaphorical, and they were not accompanied by any physical conduct or other facts indicating that the words were a physical threat rather than a metaphor.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. (Chula Vista (2018) PERB Decision No. 2586, pp. 24-25.) “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact of the employee’s employment.” (Id. at p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.) The reasonable person test guides us equally when the employer’s alleged adverse action is a warning of a possible future action. (Chula Vista, supra, at p. 25.) (pp. 17-18.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

When an employer places a document in an employee’s personnel file that impugns the employee’s reputation or otherwise potentially impedes the employee’s professional advancement, such action can constitute adverse action even absent any threat of discipline. (County of Riverside (2009) PERB Decision No. 2090-M, pp. 28, 30 [action need not specifically threaten discipline if it otherwise has an adverse impact on the employee’s employment]; State of California (Department of Youth Authority) (2000) PERB Decision No. 1403-S, pp. 32-33 [adverse action found where employer demeaned employee by issuing a substandard rating for “relationships with people,” and by imposing a documented requirement that a fellow employee had to review budget requests].) (p. 18, fn. 10.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

Where employee’s protected email was impetus for employer’s adverse action, employer did not meet its burden to prove that it would have taken same action in the absence of employee’s protected activity. (p. 20.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.)