Menlo Park Fire Protection District (PERB 1983M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN MATEO COUNTY FIREFIGHTERS
LOCAL 2400,
Charging Party,
V.
MENLO PARK FIRE PROTECTION DISTRICT,
Respondent.
Case No. SF-CE-390-M
PERB Decision No. 	1983-M
October 28, 2008
Appearances: Davis & Reno by Duane W. Reno, Attorney, for San Mateo County Firefighters
Local 2400; Burke, Williams & Sorensen by William F. Kay, Attorney, for Menlo Park Fire
Protection District.
Before Neuwald, Chair; Mckeag and Dowdin Calvillo, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the San Mateo County Firefighters, Local 2400 (Local 2400)
of
a dismissal
of
an unfair practice charge. 	The charge alleged that the Menlo Park Fire
Protection District (District) violated the Meyers-Milias-Brown Act (MMBA)1 by imposing
discipline on Fire Captain Troy Holt (Holt) for engaging in protected activity. 	Local 2400
alleged that this conduct constituted a violation
of
MMBA section 3506.
We have reviewed the entire record, including but not limited to, the unfair practice
charge, the District's position statement, the warning letter, the amended charge, the dismissal
letter, Local 2400' s appeal, and the District's response. 	Based on this review, we find the
dismissal
of
this case was proper for the reasons set forth below.
1MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
2
The District staffs a special Swift Water Rescue team (SWR) and also sponsors the
California Task Force 3 Urban Search and Rescue Team (US&R). The instant charge begins
in August 2005 when both the SWR and the US&R teams were deployed to New Orleans to
aid in disaster relief following Hurricane Katrina.
Holt
is
a fire captain for the District and a member
of
the US&R team. Local 2400 is
his exclusive representative. 	At the time
of
the events leading to this charge, Holt served on
the board that reviewed firefighter applicants and determined who would be accepted/rejected
for firefighter positions in the District.
Rudy Torres (Torres) is a mechanic for the District and is training to become a
firefighter. 	Torres is not one
of
Holt's subordinates and is not in Holt's chain
of
command. In
addition, Torres is not a member
of
the bargaining unit represented by Local 2400.
A.	A. 	Holt's Investigation
of
Torres
Although he was a member
of
the US&R team, Holt was not deployed to
New Orleans.2 Torres, on the other hand, was deployed. According to Local 2400, after
learning
of
Torres' deployment, Holt developed some concerns regarding safety issues because
he believed Torres was not adequately trained for the tasks associated with such duty. 	In
Holt's opinion, Steve Strom (Strom), another District mechanic, was adequately trained and,
therefore, should have been deployed in lieu
of
Torres.
Upon Torres' return from New Orleans, Holt questioned Torres regarding the duties he
performed in New Orleans. 	Specifically, Holt asked Torres about his "Code 3" training and
2The SWR team was the first team deployed to New Orleans. Holt was available for
deployment but was not selected. It is unclear from the record why Holt was not sent with the
SWR team. A few days later, the US&R team was deployed. According to the Local 2400,
Holt sustained an injury that prevented him from participating in the deployment with the
US&R team.	team.
2

3
whether he drove Code 3 during the deployment.3 Following this conversation, Holt sent an
e-mail dated October 6, 2005, to a Local 2400 representative requesting an investigation into
this matter. Local 2400 notified Chief Schapelhouman (Schapelhouman) of Holt's concerns
but did not request a formal investigation.
On November 26, 2005, Holt attended an officers' conference. Captain Phil Van Orden
(Van Orden), Torres' instructor at the Menlo Park Fire Academy, also attended the conference.
While at the conference, Holt questioned Van Orden regarding the status of Torres' training.
In particular, he asked Van Orden if Torres would be required to make-up the classes he
missed due to the Katrina deployment or if he would be given "a pass". Holt warned
Van Orden that there would be "consequences" ifhe gave Torres "a pass".
Holt met with Fire Chief Douglas Sporleder (Sporleder) on November 29, 2005, to
discuss his concerns regarding the US&R team, Torres, and other issues regarding his staff.
Among other things, Holt told Sporleder that personnel who did not meet the minimum
qualifications were deployed to New Orleans. Holt also informed Sporleder that Torres drove
Code 3 but was neither trained not qualified to perform such duty. In addition, Holt indicated
he was retaliated against when members from outside the District were deployed to Katrina
when Holt was available for deployment. Sporleder indicated he would look into the matters
discussed and get back to Holt.
3"Code 3" refers to the use of both lights and siren on a moving emergency vehicle.
The use of lights and siren on a stationary vehicle is not a Code 3 violation.
3

B. 	Other Complaints Regarding Torres
In addition to Holt's concerns regarding Torres, at least two other employees raised
concerns about Torres to District management. 	Strom, the mechanic that was not deployed to
New Orleans, asked Sporleder for an explanation regarding the decision to deploy Torres to
New Orleans. A meeting was held on November 16, 2005, to address Strom's concerns. The
meeting was attended by Strom, Torres, Sporleder, Shapelhouman, Chief Randy Shurson
(Shurson), Chief Frank Fraone, Rob Dehoney (Dehaney), and two other fire chiefs. Holt did
not participate in the meeting. 	At the conclusion
of
the meeting, Torres indicated he did not
have any issues to bring up to the chiefs.4
Firefighter Bill Moore (Moore), a member
of
Holt's crew, complained to Holt on two
separate occasions that Torres was getting preferential treatment by circumventing the chain
of
command. On both occasions, Holt encouraged Moore to file a complaint with Shapelhouman.
Following Holt's advice, Moore telephoned Shapelhouman and expressed his concerns. 	By
e-mail, dated November 29, 2005, Shapelhouman informed Moore that Torres' conduct did not
violate the District's policy. However, Shapelhouman did indicate he wanted to develop a
policy addressing Moore's concerns and asked Moore for his assistance.
C. 	Torres' Formal Complaint	
C.
On December 5, 2005, Torres met with Shurson and asked to be removed from his
US&R duties. When asked why he sought the removal, Torres indicated Holt, Moore and
Strom had been harassing him. Torres stated Holt confronted him, made threats over his
4According to the e-mail summarizing this meeting, Dehoney, based on "recent and
ongoing conversations that took place between individuals," took exception with Torres'
assertion that he did not have any other issues that required consideration. Dehoney' s
conversations, however, were not summarized in the e-mail. In addition, the e-mail required
Torres and Strom to "address and treat each other with respect and maintain a professional
work environment" and to "attend conflict resolution and communication enhancement
training."
4

deployment to New Orleans and threatened Torres regarding his future as a firefighter.
Thereafter, on December 21, 2005, Torres filed formal complaints against Holt, Moore and
Strom in which he alleged their threatening behavior created a hostile work environment.
All three complaints were investigated by outside investigators. Both Moore and Strom
were exonerated. Holt, however, was given a written reprimand on April 27, 2006. The
reprimand found Holt's interaction with Torres violated, among other provisions, the District's
anti-harassment policy. 	In addition, the reprimand included a summary of the independent
investigator's findings, which provided in relevant part:
You were not happy that Mr. Torres was part of the US&R team
that was deployed to New Orleans to Hurricane Katrina. You
also were not happy that you were not deployed. 	When
Mr. Torres returned from New Orleans in September 2005, you
said to Mr. Torres 'You took food out of my kid's mouth'
because Mr. Torres had gone to New Orleans and had the
opportunity to earn certain overtime that you did not. 	You also
made similar comments to other personnel about this decision to
send Mr. Torres and not you to New Orleans.
On another occasion, you questioned Mr. Torres in an accusatory
manner regarding his activities while in New Orleans. You asked
Mr. Torres ifhe had been driving with 'lights and siren on.' 	You
also asked if Mr. Torres went out with the Coast Guard doing
rescues. You made your inquiries to Mr. Torres outside the chain
of command, and apparently, with the hopes of learning of
inappropriate actions by Mr. Torres or orders from Menlo Fire's
Chief Officers while Mr. Torres was deployed.
Making matters worse, you explicitly went on to tell Mr. Torres
that, if he did not report alleged improprieties by Menlo Fire's
Chief Officers, it could get Mr. Torres in trouble if he wanted to
become a firefighter with Menlo Fire. This threat also entirely
inappropriate.
5
You also told Mr. Torres on October 17, 2005 that he was getting
an 'Orley Hatfield' reputation. 	Orley Hatfield was a prior
candidate for firefighter that was rejected at the oral board stage.
You served on Mr. Hatfield's oral board which apparently
rejected Mr. Hatfield, at least in part, because you resented
Mr. Hatfield's good relationship with certain Chief Officers.
Thus, your comment to Mr. Torres conveyed that, if he did not

DISCUSSION
report alleged improprieties by Chief Officers, Mr. Torres would
also suffer when he interviewed with the oral board.
On September 20, 2006, Local 2400 filed the instant unfair practice charge in response
to the issuance of this reprimand.
DISCUSSION
To establish a prima facie case of discrimination/retaliation in violation of MMBA
section 3506 and PERB Regulation 32603(a),5 the charging party must show that: (1) the
employee exercised rights under MMBA; (2) the employer had knowledge of the exercise of
those rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained, or coerced the employee
because of the exercise of those rights. 	(Campbell Municipal Employees Assn. v. City of
Campbell (1982) 131 Cal.App.3d 416 [182 Cal.Rptr. 461] (Campbell); San Leandro Police
Officers Assn. v. City of San T,eandro (1976) 55 CaLApp.3d 553 [127 Cal.Rptr. 856]
(San Leandro).)
A. 	Holt Engaged in Both Protected Conduct and Non-Protected Conduct
PERB has held that reports by employees regarding safety concerns may be protected.
In Regents of the University of California (1983) PERB Decision No. 319-H (Regents), the
Board held that an employee's report regarding safety concerns to his exclusive representative
was protected. In Los Angeles Unified School District (1995) PERB Decision No. 1129
(LAUSD), the Board held that an employee's report regarding a safety related incident to an
employer was protected. More recently, the Board held that, under certain circumstances, an
employee's report regarding safety concerns to third parties can also be protected. 	(Oakdale
Union Elementary School District (1998) PERB Decision No. 1246 (Oakdale).)
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
6

consider after a formal hearing.
In its appeal, Local 2400 argues that Holt was engaged in protected conduct when he
questioned Torres regarding his deployment in New Orleans and reported his concerns to
Local 2400. The District, on the other hand, argues that Holt's conduct amounted to
harassment, intimidation and threats and, therefore, was not protected by the MMBA.
Clearly, there is a dispute between the parties regarding the nature of Holt's conduct.
However, when determining whether a charging party has stated a prima facie case, the Board
agent must credit the charging party's factual allegations over those of other parties. (Golden
Plains Unified School District (2002) PERB Decision No. 1489.) Consequently, any disputed
facts or competing theories of law should properly be left for an administrative law judge to
consider after a formal hearing.
Based on the foregoing, we find Local 2400 presented sufficient evidence to establish
that: (1) Holt harbored safety concerns regarding Torres' deployment to New Orleans; (2) Holt
questioned Torres to determine if those concerns were warranted; and (3) that Holt reported
those concerns to his exclusive representative. Thus, based on Regents, we conclude Holt's
e-mail to his union representative regarding his safety concerns about Torres's deployment to
New Orleans was protected by the MMBA. In addition, based on LAUSD, we find Holt's
November 29, 2005, discussion with Sporleder regarding his safety concerns about Torres's
deployment was also protected by the MMBA.
Local 2400 also claims Holt engaged in protected activity when he questioned
Van Orden regarding Torres' make-up work in the fire academy classes. However, one of the
key elements to finding protected conduct under Regents and LA USD is the actual reporting of
the safety concerns to either the exclusive representative or to the employer. In this case,
Holt's questioning of Van Orden occurred after Holt reported his concerns regarding Torres to
the union and there is nothing in the record to suggest Holt reported (or intended to report)
77

facts derived from this conversation to either Local 2400 or to the District. As such, this
conduct was not protected under Regents or LAUSD.
8
B. 	The District was Aware that Holt Exercised Protected Rights
As discussed above, Holt reported his concerns regarding Torres' deployment to a
Local 2400 representative and requested an investigation into the matter. In response to this
request, Local 2400 informed Shapelhouman of Holt's concerns but did not request an
investigation. In addition, Holt met with Sporleder on November 29, 2005, to discuss his
complaints regarding the Hurricane Katrina deployment, including his complaint that Torres
should not have been deployed. Based on the foregoing, we find the District was aware of
Holt's protected conduct. Accordingly, the second element of the prima facie case is satisfied.
C. 	The District Imposed an Adverse Action on Holt
With respect to the next element, the Board has held that the issuance of a written
reprimand constitutes an adverse action. 	(Trustees of the California State University (2006)
PERB Decision No. 1853-H.) Thus, Holt's April 27, 2006, reprimand satisfies this element of
the prima facie case. 	Consequently, the remaining issue is whether the District took the action
because of Holt's protected conduct.
D. 	Local 2400 Failed to Establish a Nexus Between Holt's Conduct and the Reprimand	D.
In its appeal, Local 2400 argues that the issuance of the reprimand constitutes an unfair
labor practice because it threatens Holt with additional disciplinary actions if he attempts to
address safety concerns through his union. 	Although not expressly set forth in the statement of
exceptions, it appears that Local 2400 is arguing that the reprimand, on its face, provides direct
evidence that Holt was disciplined for his protected conduct.
8

The reprimand, however, does not state that Holt was disciplined for reporting his
alleged safety concerns to Local 2400. Rather, in addition to several other admonitions, the
reprimand merely states:
To the extent you have concerns with a particular procedure, or
decision or action of others, you should feel free to report it, but
should follow the chain of command. If particular circumstances
clearly preclude this, you should speak to an uninvolved Fire
Manager, rather than use your status as a Captain and/or oral
board member for new firefighter candidates to pressure,
intimidate or threaten other employees.
Clearly, the reprimand directs Holt to follow the chain of command. However, it does
not expressly state it was issued because Holt reported his safety concerns to Local 2400.
Accordingly, we find the reprimand, on its face, does not constitute direct evidence that the
District issued the reprimand because of Holt's protected activity.
9
PERB has long recognized that direct evidence of discriminatory intent is rare. 	(See
Oakdale.) Thus, the Board has held that circumstantial evidence of discriminatory intent may
be sufficient to establish the required nexus. Although the timing of the employer's adverse
action in close temporal proximity to the employee's protected conduct is an important factor,
it does not, without more, demonstrate the necessary connection or "nexus" between the
adverse action and the protected conduct. (Moreland Elementary School District ( 1982) PERB
Decision No. 227.) Facts establishing one or more of the following nexus factors should be
present: 	(1) the employer's disparate treatment of the employee (Campbell); (2) the
employer's departure from established procedures and standards when dealing with the
employee (San Leandro); (3) the employer's inconsistent or contradictory justifications for its
actions (San Leandro); (4) the employer's cursory investigation of the employee's misconduct;
(5) the employer's failure to offer the employee justification at the time it took action or the
offering of exaggerated, vague, or ambiguous reasons; or (6) employer animosity towards
9

10
union activists (San Leandro; Los Angeles County Employees Assn. v. County of Los Angeles
(1985) 168 Cal.App.3d 683 [214 Cal.Rptr. 350]).
1. 	Timing
To establish a nexus, Local 2400 must first show that Holt's protected activity and the
District's adverse action occurred close in time to one another. In this case, Holt sent his
e-mail regarding Torres to Local 2400 on October 6, 2005, and Local 2400 contacted the
District to address Holt's concerns. However, the District did not issue the reprimand until
April 27, 2006. 	Considering the fact that over six months elapsed between the time of Holt's
protected conduct and the adverse action, we conclude the charge lacks the close temporal
proximity between protected conduct and the adverse action to support a finding of nexus in
this case.
2.	2. 	Holt Was Not Subjected to Disparate Treatment
Assuming, arguendo, that timing supported an inference of retaliation, Local 2400 must
also show at least one additional factor to establish a nexus between Holt's protected conduct
and the issuance of the reprimand. 	An employer's disparate treatment of the employee is one
such factor. 	(City of Milpitas (2004) PERB Decision No. 1641-M.) However, it does not
appear that the District's anti-harassment policy was applied differently between the three
individuals implicated in Torres' complaint. Holt, Strom and Moore were investigated by an
outside investigator in response to the complaint, and the District acted upon the separate
findings of all three investigations. Under these circumstances, notwithstanding Holt's
reprimand, we do not find that Holt was treated differently from other, similarly situated
employees.

3.	3. 	The District Did Not Depart From Established Procedures
In its reply to the District's position statement, Local 2400 argues the District departed
from its harassment policy when it failed to require Torres to exhaust the informal harassment
complaint resolution process before initiating the formal complaint process. However, the
District's policy states:
Using the informal complaint procedure is not comfortable for
everyone or appropriate for every situation. Protesting or
objecting to the conduct with the individual(s) involved is not a
prerequisite to filing a formal or an informal complaint.
Local 2400 does not cite to any specific language in the District's harassment policy
that explains why the informal process must be exhausted prior to the initiation of a formal
complaint. To the contrary, the policy expressly states that using the informal complaint
process is not appropriate for every situation. Thus, based on the plain language of the policy,
it does not appear that the District impermissibly departed from established procedures when it
issued Holt's reprimand.
11
4. 	The District Did Not Conduct a Cursory Investigation, or Offer Inconsistent,
Vague or Exaggerated Justifications for the Issuance of the Reprimand
4.
After receiving Torres' formal complaint, the District referred the matter to an outside
investigator. According to the District, the investigator interviewed eight witnesses, including
Holt, and submitted a report summarizing her findings on March 10, 2006. 	The District issued
the reprimand on April 27, 2006.
Based on the foregoing, we find nothing in the record to support the inference that the
District's investigation was cursory. Moreover, it appears the District reasonably considered
and relied upon the report as the basis for the reprimand. Consequently, we find that the
District did not offer inconsistent or contradictory justifications for the issuance of the
11

5.
reprimand, nor did it offer exaggerated, vague, or ambiguous reasons for the issuance of the
reprimand.
5. 	The District Did Not Exhibit Union Animus
Last, a nexus can be established by demonstrating the employer harbors animosity
towards union activists. In this case, however, the District took no action against Holt when it
first learned that Holt reported his concerns regarding Torres to Local 2400 and, in fact,
appeared to cooperate with Local 2400 to address Holt's concerns. Moreover, both Holt and
Moore had union representation during the investigation of Torres' complaint, but only Holt
was disciplined for his conduct. Based on our review of the record, we find nothing to suggest
that the issuance of the reprimand was the product of any union animus on behalf of the
District.
Schapelhouman stated in an e-mail to Holt:
12
In its appeal, Local 2400 noted that in 2003, Holt sent an e-mail to a Local 2400
representative expressing concern regarding the District's use of contract employees who were
paid using funds from the Federal Emergency Management Agency but assigned to perform
work that was not related to US&R. The e-mail identified tasks that contract employees were
assigned to perform and also indicated that the US&R equipment cache suffered because of the
use of the contract employees. 	According to Local 2400, Holt was removed from his
coordinator position for the US&R Logistics Group because of this e-mail. Later,
Schapelhouman stated in an e-mail to Holt:
As an Officer and Manager in the organization you should have
worked through your chain of command to solve these problems
and address these issues. Instead you sent in your Labor
Representatives who brought up your issues of getting rid of
US&R contract employees because they were not used how you
had intended them to be and returning to just using Menlo Park
Fire Personnel and having overtime opportunities returned to our
members. The information you provided was inaccurate, divisive
and counterproductive to the program. 	Many of the issues had
nothing to do with labor and should have been handled through
12

the normal chain of command, and the ones that did involve labor
could have been handled differently.
Although not expressly stated in the appeal, it appears this evidence was offered to
demonstrate the District harbored animosity against Holt for his union activities. 	We find
this evidence does not support that inference. Rather, we find this evidence merely supports
that proposition that Holt has a penchant for operating outside the chain of command. 	We,
therefore, conclude the record does not support the proposition that the District issued the
reprimand due to union animus.
6
Because Local 2400 failed to establish any of the nexus factors, we find Local 2400
failed to establish a prima facie case of retaliation against Holt. Accordingly, this charge was
properly dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-390-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Neuwald joined in this Decision.
Member Dowdin Calvillo's concurrence begins on page 14.
13
6These events clearly occurred outside the six-month statute of limitation and may not
form the basis of an independent unfair practice charge. However, notwithstanding the timing
of these events, they may be used as background evidence of the District's motivation.
(Trustees of the California State University (2008) PERB Decision No. 1970-H .)
13

DOWDIN CALVILLO, Member, concurring: I concur in the majority's conclusion
that the Menlo Park Fire Protection District did not retaliate against Captain Troy Holt (Holt)
for engaging in protected activity. I also join in the majority opinion's analysis, with one
exception. Unlike the majority, I believe it
is
necessary to determine whether Holt's
questioning
of
Rudy Torres (Torres) in October 2005 regarding Torres' New Orleans
deployment was protected activity under the Meyers-Milias-Brown Act (MMBA). For the
following reasons, I would find that the charge did not allege facts establishing that Holt's
questioning
of
Torres was protected by the MMBA.
The Public Employment Relations Board (PERB or Board) has thrice held that
reporting safety concerns
is
protected activity. (Oakdale Union Elementary School District
(1998) PERB Decision No. 1246; Los Angeles Unified School District (1995) PERB Decision
No. 1129; Regents
of
the University
of
California (1983) PERB Decision No. 319-H.)
However, none
of
these cases addresses the issue here: whether and to what extent an
employee's conduct leading up to the safety report is protected. National Labor Relations
Board (NLRB) cases provide relevant guidance on this issue. However, before turning to those
cases, it is necessary to discuss the scope
of
protected activity under MMBA.
MMBA section 3502 provides in relevant part that "public employees shall have the
right to form, join, and participate in the activities
of
employee organizations
of
their own
choosing for the purpose
of
representation on all matters
of
employer-employee relations."
Section 3543(a)
of
the Educational Employment Relations Act (EERA) 1 contains identical
language. 	Section 7 of the National Labor Relations Act (NLRA), on the other hand, provides
in pertinent part that "[e]mployees shall have the right to self-organization, to form, join or
assist labor organizations, to bargain collectively through representatives of their own
14
1EERA is codified at Government Code section 3540 et seq.
14

choosing, and to engage in other concerted activities for the purpose
of
collective bargaining
and other mutual aid or protection."
Despite the differences in language, the Board in Modesto City Schools (1983) PERB
Decision No. 291, found the scope
of
protected activity under EERA section 3543(a) to be the
same as that under Section 7
of
the NLRA. Because the relevant language
of
MMBA section
3502 is identical to that in EERA section 3543(a), the scope
of
protected activity under MMBA
is the same
as
under both EERA and the NLRA.2
Under Section 7
of
the NLRA, "any activity by a single employee may be protected
if
it
seeks to initiate, induce or prepare for group action." (Transit Management
of
Southeast
Louisiana (2000) 331 NLRB 248,249 [170 LRRM 1447].) Similarly, PERB has held that
"individual action with or on behalf
of
others is deemed concerted action and therefore entitled
to protection, but that conduct less than that, divorced from collective concerns," is not
protected. 	(Regents
of
the University
of
California (1987) PERB Decision No. 615-H.) Under
the NLRA, protected concerted activity specifically includes discussions about safety related
issues between two or more employees. (Systems with Reliability, Inc. (1996) 322 NLRB 7 57,
760 [154 LRRM 1096].)
However, the NLRB has only found pre-safety report discussions to be protected when
they address safety concerns already held by the participants and the purpose
of
the discussion
is to pursue further action on behalf
of
the participants. For example, in Anheuser-Busch, Inc.
(1978) 239 NLRB 207 [99 LRRM 1548], the NLRB found an employee engaged in protected
activity by "discussing with his coworkers the safety
of
welding in the grain building and
drafting the questions and comments [to present to management] in consultation with them."
" When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the NLRA and California labor relations statutes with parallel provisions. (Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)
15	
15

16
(Id., at p. 211.) Likewise, in Beverly Health & Rehabilitation Services (2000) 332 NLRB 347
[170
LRRM
1273], the Board found an employee's conversations with co-workers about their
mutual safety concerns to be protected, particularly as the employee then took those concerns
to line management. (Id., at p. 368.)
16
Here, the charge does not establish that
Holt's
questioning
of
Torres was protected
concerted activity. The charge alleges that Holt had safety concerns about Torres' conduct in
New
Orleans. However, it does not show that Torres shared those concerns
or
that he wanted
Holt to present those concerns to management, San Mateo County Firefighters Local 2400 or
a
third party. Instead, the charge indicates that Holt questioned Torres merely to confirm
what
he had heard about Torres so that he could make a report
of
his own safety concerns. Thus, the
discussion between Holt and Torres was not
of
the same character as those found protected in
the NLRB cases above. Further, while the charge alleges that Holt "was told" Torres was
driving Code 3, it does not allege that the employees who made these statements to Holt shared
his safety concerns or that he was acting on their behalf in questioning Torres. For these
reasons, I would find that the facts alleged in the charge fail to establish that
Holt's
questioning
of Torres was protected by the MMBA.	
of
Torres was protected by the MMBA.