Decision 2613M – County of Santa Clara

SF-CE-1339-M

Decision Date: December 21, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 104

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

There is no more fundamental right afforded employees under the statutory scheme than the right to communicate with others about working conditions, which include the circumstances underlying and surrounding an investigation into alleged employee misconduct.

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

A prima facie case of interference is established by allegations that an employer’s conduct tends to or does result in some harm to employee rights under our statutes. If the harm to protected rights is slight and the employer offers justification based on operational necessity, the competing interests are balanced. If the harm to employee rights outweighs the asserted business justification, a violation will be found. Where the employer’s conduct is inherently destructive of protected rights, it will be excused only on proof that it was caused by circumstances beyond the employer’s control and that no alternative course of action was available.

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

Directive prohibiting employee from communicating with co-workers about matter for which he was being investigated prevented him from contacting potential witnesses, making inquiries that could help him prepare for investigatory interview, and from assisting the union in representing him.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Employer failed to meet burden of establishing justification for overbroad directive because it made no attempt to do so, but rather only claimed, without basis, that various external laws prohibited it from attempting to do so.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Noncompliance with PERB Regulation 32300, subdivision (a), can result in dismissal of the exceptions without review of the merits of the excepting party’s claims. However, based on public policy favoring resolving cases on their merits, the Board may exercise its discretion to disregard noncompliance.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Failure to advance an argument in exceptions constitutes abandonment of the argument.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.11000 – Request for Oral Argument

The Board typically denies such requests when an adequate record has been prepared, the parties had ample opportunity to present briefs and have availed themselves of that opportunity, and the issues before the Board are sufficiently clear as to make oral argument unnecessary.