Terminating the Employment Relationship

Whether an employee may be terminated for physical or mental inability to perform the duties of the job is a complicated legal determination involving workers’ compensation, disability accommodation and/or protected leave laws. These situations may also require an employer to apply for a disability retirement on behalf of the employee. Liebert Cassidy Whitmore recommends that managers and supervisors seek advice from their agency’s human resources professionals and/or legal counsel before initiating discipline in this context.

LCW Practice Advisor

5. R ETALIATION FOR U NION A CTIVITY

The Meyers-Milias-Brown Act (“MMBA”) (and other statutory sections governing employer/employee relations) and possibly the First Amendment prohibit discrimination and retaliation on the basis of union activity. 52 Accordingly, public employers must consider their liability exposure when terminating someone who is actively involved in a union (e.g., a union representative, officer or steward). A manager or supervisor must make two basic decisions when considering whether to terminate an employee who frequently engages in union activity. The manager/supervisor must: (1) determine whether the employee was acting primarily in his/her role as an employee, as a union steward, or as both; and (2) consider the relevance of the employee’s actual role at the time of the offense. In Ellins v. City of Sierra Madre , Ellins, the police officer union president, led the union in a vote of no confidence against the city’s chief of police. In a press release, Ellins criticized the chief’s management style. Soon after the vote, Ellins submitted an application to the chief for a training certificate which would trigger a 5% pay raise. The training certificate application required the chief to affirm that she felt Ellins was of good moral character. The chief refused to sign off on the training certification application and Ellins filed a federal district court action alleging retaliation for exercising his First Amendment rights. The Ninth Circuit determined that while personal grievances are not matters of public concern, collective grievances raised by unions may be matters of public concern. In addition, the court noted that Ellins’ daily professional duties as a police officer did not include acting as a union representative or serving as the union’s president. Therefore, the court found that Ellins spoke out as a private citizen when he led the no-confidence vote. 53

Arbitrators consider the following principles regarding dual roles:

A union steward is subject to the same standard of behavior as the other employees in the organization when acting solely as an employee.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 32