Disciplinary Memorandum Held To Be Unfair Labor Practice
[Alisal Union Elementary School District v. California Public Employment Relations Board
(Case No. SF-CE-1901; 22 PERC ¶ 29049)]In this case a long time district employee and union activist was given a memorandum of warning based upon what the District perceived as her acting in an unprofessional and disruptive manner during confrontation with other employees in the District's business office. A copy of the memorandum was placed in her personnel file, and the employee was given an opportunity to file a response which she did. She subsequently requested an opportunity to file a second response. That request was granted.
The second response was critical of the District's investigation of the incident and contended that the memorandum of warning lacked foundation. This second response was also placed in the employee's personnel file. Subsequently, the District's personnel director issued what the Public Employment Relations Board (PERB) characterized as a "lengthy disciplinary memorandum chastising the [employee] for her history of discourteous conduct and cited [her] April response as evidence of her failure to recognize her misconduct or to mend her ways." The memorandum noted that subsequent similar conduct could lead to more serious disciplinary action. The memorandum informed the employee that a copy of the memorandum would be placed in her file and that she could file a response which would also be placed in her file.
The employee subsequently filed an Unfair Labor Practice charge in which she contended that the disciplinary memorandum unlawfully interfered with her protected rights and constituted retaliation for the exercise of those rights. The protected right allegedly violated was the right to represent herself in employment relations with her employer. PERB ordered the disciplinary memo removed from the employee's file.
One member of PERB dissented stating that the employee had not established that the District committed an unfair labor practice. The lesson in this case is that there are times when the employer must show restraint, not escalate matters, and allow the employee to have the last word. As noted in this decision, a "measured" response may have been appropriate.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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