UNION UNFAIR PRACTICES; CAUSING EMPLOYER TO VIOLATE ACT – In General

Single Topic for Decision 2445E

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By filing grievances and a PERB charge that aimed to remove an employee from a department chair position, the employee organization did not “attempt” to cause the school district to retaliate against an employee for engaging in protected activity; to establish a violation of EERA section 3543.6, subdivision (a), the school district must demonstrate that if it were to remove the employee from the department chair position, such conduct would constitute an unlawful retaliatory act under Novato and that the employee organization affirmatively caused or consciously attempted to cause the school district to commit the unlawful retaliatory act; where the school district usurped the employee organization’s role in conducting department chair elections, ordered that the name of an employee found ineligible by the employee organization to run in an election for department chair be placed on the ballot, and recognized that employee as the victor in an election that was not sanctioned by the employee organization, the employer failed to satisfy its burden of demonstrating that it was an unwitting tool or mere accomplice in the employee organization’s unlawful retaliatory scheme; instead, the school district was the principal actor that set in motion the circumstances that created the controversy; accordingly, a charge under EERA section 3543.6, subdivision (a) could not stand.