All notes for Subtopic 502.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2530E Monterey Peninsula Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
An employee has standing to file an unfair practice charge against a former employer to allege that such employer interfered with the employee’s attempt to obtain and/or retain subsequent employment. more or view all topics or full text.
42206/19/17
2423M County of San Bernardino (Office of the Public Defender)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Publically employed attorneys have rights under the MMBA. more or view all topics or full text.
3916505/15/15
2342E Coachella Valley Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Both the record of hearing and charging party’s unfair practice charge, as amended, support his contention that his reports concerned teacher (co-worker) misconduct, not student misconduct, during standardized testing. We conclude that charging party’s conduct in reporting cheating by teachers is not protected conduct under EERA. PERB’s jurisdiction is limited to the determination of unfair practices arising under EERA and the other public sector labor statutes which we administer. Whistleblowing in California K-12 public schools is protected under section 44100 et seq., of the Education Code. It is well established under PERB precedent that we do not have jurisdiction to enforce the Whistleblower Act or pure Education Code violations. Charging party’s reporting of alleged cheating by teachers did not seek to enforce employee workplace rights or rights stated in the CBA. Thus, it is not protected under EERA. more or view all topics or full text.
389512/09/13
2381E Monterey Peninsula Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Neither of charging party’s e-mails was part of a collectively bargained for grievance procedure, addressed the collective concerns of the bargaining unit, nor sought to enforce rights stated in the CBA. The correspondence concerned complaints about charging party’s behavior and his defense of his behavior was undertaken alone and for his sole benefit. Because the e-mail did not refer to a grievance, did not appear to address a contract violation and was not on the grievance form required under the collective bargaining agreement, the “tangential reference” in the e-mail to the union president was insufficient to provide a connection to any collective concerns of the bargaining unit. Charging Party’s e-mail concerns an issue undertaken by himself and for his sole benefit. As such, it is not a “logical continuation of group activity” and is not protected under EERA. Absent any demonstration that charging party and co-worker had a right to a key to the multi-purpose room (MPR) under the collective bargaining agreement or that their hours of employment were altered because of the Principal’s key system, charging party has failed to demonstrate that his request for his and co-worker’s own keys to the MPR was EERA protected conduct. Because charging party has not shown that he and his co-worker had a statutory right to a key, we distinguish this case from those where employees jointly prosecute alleged violations of workplace rights that are not contained in the collective bargaining agreement, but contained in external law. We disagree with charging party that the Office of the General Counsel determined that his e-mails were not protected because of their number and tone. The dismissal letter clearly points out that the e-mails in question lack EERA protection, because they were not undertaken as group activity or a logical continuation thereof. The dismissal letter merely points out that the Monterey County Superior Court found that the number and tone of charging party’s e-mail communications were sufficient to form the basis for dismissal on the grounds of persistent refusal to obey school laws or regulations, a basis for dismissal under the Education Code, not EERA. more or view all topics or full text.
391206/27/14
2283E Jurupa Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Joining with another employee or employees to enforce external law regarding workplace rights, is itself group activity protected by EERA against employer interference and retaliation. (Franklin Iron & Metal Corp. (1994) 315 NLRB 819, enf’d (6th Cir. 1996) 83F.3d 156; Eastex, Inc. v. NLRB (1978) 437 U.S. 556.) Seeking individually to enforce provisions of a collectively-bargained agreement is “a logical continuation of group activity” and protected under EERA. The Board does not distinguish between those collectively-bargained provisions which reflect rights also protected and enforceable under external law, and other collectively-bargained rights which spring solely from the bargained agreement. Our concern in either case is not with the substance of the collectively-bargained rights, but rather with their source in the agreement and the employee’s use of collectively-bargained enforcement procedures. It is that activity which is implicated by charging party’s allegations, and protected by EERA. Protected employee activity includes, without limitation: (1) seeking to enforce collectively-bargained agreements, either individually or jointly with other employees; and (2) with one or more other employees, seeking to enforce workplace rights through administrative or judicial means. (Oakdale Union Elementary School District (1998) PERB Decision No. 1246; Franklin Iron & Metal Corp. (1994) 315 NLRB 819, enf’d (6th Cir. 1996) 83F.3d 156.) In addition, protected activity includes representation rights, known colloquially as “Weingarten rights,” so named for a decision of the United States Supreme Court affirming the National Labor Relations Board (NLRB) decision which enforced them. (NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251.) These rights protect an employee’s request for union representation, inter alia, when an employer seeks to question an employee under circumstances which are unusual or could lead to discipline for the employee. more or view all topics or full text.
08/21/12
2221E Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Under EERA section 3543.5, subdivision (a), “employee” includes an applicant for employment or reemployment; subsequent to charging party’s reapplication to be a support provider in the Beginning Teacher Support and Assessment (BTSA) Induction Program and retirement, charging party remained an “employee” within protection of statute given status as an applicant for reemployment. more or view all topics or full text.
368811/23/11
2147E Fontana Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
PERB has consistently held that filing complaints with outside agencies and regarding issues such as race or gender based discrimination does not qualify as protected activity. This is because outside agencies often have rules and regulations in place to prevent unlawful retaliation for filing complaint and because PERB does lacks the authority to address race or gender based discrimination claims. more or view all topics or full text.
351012/10/10
2118S State of California (Department of Corrections and Rehabilitation)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Although certain communications with an employer taken on behalf of unit employees may be considered protected activity, an employee’s communication with the employer is for his/her own benefit is not protected. more or view all topics or full text.
3410206/15/10
1945E Journey Charter School * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Three teachers engaged in protected conduct when they sought the assistance of the Association and decided to join the union. The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action. One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. Nexus can be proven by evidence of the employer’s inconsistent or contradictory justifications for its actions. However, the record is devoid of evidence that a charter school’s justification for its action was inconsistent or contradictory. A charter school did not give a clear reason to the teachers for its non-renewal of their contracts. Nevertheless, the totality of the circumstances indicated that a charter school did not renew two teacher’s contracts because they distributed a letter. The Board was unable to draw a reasonable inference of unlawful motivation based solely on the proximity of the charter school’s action and its failure to give the teachers a clear justification for their decision. The Board found that a charter school did not to renew teachers’ contracts due to the contents of a letter they distributed rather than the teachers’ attempt at union organization. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded that the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity. more or view all topics or full text.
324502/28/08
1930E Los Angeles Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
No evidence that a teacher’s request that a school administrator be investigated for fraud was union activity or otherwise protected conduct. more or view all topics or full text.
321011/28/07
1826S State of California (Department of Corrections)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Filing a fraudulent claim in a grievance is not protected activity. more or view all topics or full text.
308203/03/06
1552E Los Angeles Unified School District * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Bailey’s complaints on her own behalf to a supervisor about a subordinate do not rise to the level of protected activity. This is distinguished from cases in which the Board found that an employee’s complaint concerned an issue impacting employees generally and thus, was protected. more or view all topics or full text.
28710/21/03
1539M City of Folsom
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
As Siroky had not worked for the City of Folsom since 1998 but worked for the State of California at the time the alleged protected activity and adverse action occurred (2002), he is not a “public employee” under MMBA sections 3501(c), (d) and 3506 for purposes of this charge. more or view all topics or full text.
279906/26/03
1529E Oakland Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Employee memo to school principal complaining about unresolved committee issues involving teacher morale and teacher recommendations is protected activity. more or view all topics or full text.
279106/20/03
1497S State of California (Department of Motor Vehicles, Unemployment Insurance Appeals Board, State Personnel Board and Department of Justice)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Where there is no support in the charge to suggest that charging party ever was a civil service employee and charging party failed to establish he was a bona fide applicant for any state job, failure to establish eligibility for state service precludes a finding of harm by any refusal to consider an application for state employment or reinstatement. more or view all topics or full text.
263311508/27/02
1484S State of California
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Where there is no evidence in the record to suggest that charging party ever held a civil service position and was a civil service employee within the meaning of Section 3513(c) and charging party failed to establish he was a bona fide applicant for a vacant civil service position within the meaning of Section 3519(a), charging party has not established that the decisions made by various agencies to no longer purchase his services as an interpreter were covered by the Dills Act. more or view all topics or full text.
263307706/06/02
1263H Regents of the University of California (University Professional and Technical Employees)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Employees' submission of "potential sick leave" notices was protected activity; p. 50. more or view all topics or full text.
222909004/28/98
1230E Centinela Valley Union High School District (Garcia)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Applicants for employment are employees within the meaning of EERA section 3543.5(a); p. 4, warning letter. more or view all topics or full text.
222901011/13/97
1188H Regents of the University of California (University Professional and Technical Employees)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Nonrepresented employees have the protected right to participate in a PERB conducted representation election to select an exclusive representative; p. 22 and 28. more or view all topics or full text.
212806703/19/97
1063S State of California (Department of General Services) (Strickland)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
It is not improper for bargaining unit members to participate on interview panels or to oversee the work assignments, to some degree, of other bargaining unit employees; p. 26, proposed dec. more or view all topics or full text.
192600310/27/94
0787S State of California (Department of Personnel Administration)
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Under the Dills Act it is found that all employees in state service, unless specifically exempted by section 4 of Article 7 of the Constitution, are civil service employees. Board overruled, in part, Decision No. 110d-S. more or view all topics or full text.
142104001/11/90
0685E Hacienda La Puente Unified School District  * * * SUPERCEDED by amendment to EERA section 3543.5, subdivision (a) Stats. 1989, Ch. 313
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Applicants for employment are not employees protected by Government Code section 3543.5(a). Note: Statute amended after decisions. more or view all topics or full text.
121911306/24/88
0686E Los Angeles Unified School District
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Applicants for employment have no standing to file an unfair practice charge as EERA's protection extends only to employees. Note: Statute amended after decisions. more or view all topics or full text.
121911406/24/88
0978E Fresno County Office of Education
502.1000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; In General
Amended charge that contained numerous conclusionary statements regarding discriminatory attitute and disparate treatment failed to demonstrate evaluation of individual was because of union activity; p. 2, dismissal letter. more or view all topics or full text.
172405203/09/93