Decision 2283E – Jurupa Unified School District

A prima facie case of interference is established by allegations that an employer’s conduct tends to or does result in some harm to employee rights under our statutes. (Carlsbad Unified School District (1979) PERB Decision No. 89.) Employees have the right to engage in activities protected by EERA, viz., forming, joining and participating in activities of an employee organization for the purpose of representation. (EERA, § 3543.5(a).) Employer conduct which tends to or does result in some harm to an employee’s exercise of these rights interferes therewith in violation of the EERA. (EERA, § 3543.5(a).) Charging party alleges that a memo criticized those employees who, with charging party, had joined together to file through counsel a grievance and complaint seeking to enforce workplace rights. Such alleged conduct by the District’s assistant superintendent for personnel is attributable to the District. Employees reading the memo would understand the District to be hostile to their participation in activity protected by the EERA. We conclude this would result in at least some harm to employee rights. Thus, we conclude that the allegation states prima facie an instance of impermissible interference with employee rights.

Charging party alleges that a memo criticized those employees who, with charging party, had joined together to file through counsel a grievance and complaint seeking to enforce workplace rights. Such alleged conduct by the District’s assistant superintendent for personnel is attributable to the District. Employees reading the memo would understand the District to be hostile to their participation in activity protected by the EERA. We conclude this would result in at least some harm to employee rights. Thus, we conclude that the allegation states prima facie an instance of impermissible interference with employee rights.

Charging party alleges that a memo criticized those employees who, with charging party, had joined together to file through counsel a grievance and complaint seeking to enforce workplace rights. Such alleged conduct by the District’s assistant superintendent for personnel is attributable to the District. Employees reading the memo would understand the District to be hostile to their participation in activity protected by the EERA. We conclude this would result in at least some harm to employee rights. Thus, we conclude that the allegation states prima facie an instance of impermissible interference with employee rights.

To be effective, the right to union representation in an investigatory interview includes an opportunity for the employee prior to the interview to confer with the union. Where the employer schedules the interview in such fashion that the employee has no opportunity to confer with the union on the employee’s own time prior to the interview, then upon request of either the employee or the union representative the employer must provide a reasonable time for the employee and the union representative to confer, in private, before proceeding with the interview so that the union representative “can provide meaningful representation” not merely be an observer. Under EERA a union designates the union’s agents, including without limitation union agents who will represent employees in investigatory interviews. EERA does not oblige an employer or the union to accommodate an employee’s choice of union representative, either in scheduling or conducting an investigatory interview; provided that, where an employee’s preferred union representative is available, an employer may not insist upon a different representative. (Consolidation Coal Co. (1992) 307 NLRB 976.) Nor does EERA afford an employee the right to be represented by the employee’s own attorney in an investigatory interview conducted by employer officials. (California Teachers Association, Solano Community College Chapter, CTA/NEA (Tsai) (2010) PERB Decision No. 2096.)

A prima face case of retaliation is established by allegations that the employee engaged in protected activity, the employer knew thereof, the employer took action against or adverse to the interest of the employee, and the employer acted “because of” the employee’s protected activity. The motive (“because of”) element is established by direct proof or inferred from the record as a whole. An inference of unlawful motive, i.e., the “nexus” between the protected conduct and the employer’s challenged action, may be found in facts which suggest an unlawful motive, including suspicious timing, disparate treatment, departure from established policies and procedures, and employer justifications which are exaggerated, inadequate, inconsistent or contradictory.

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.

We treat the issue whether a consecutive annual evaluation of a permanent certificated employee is adverse as one of first impression. Requiring a consecutive year evaluation of a permanent employee treats the permanent employee as though she were probationary and simultaneously signals a performance deficiency requiring remediation and or termination. As to a permanent certificated employee subject normally to bi-annual evaluation under collectively-bargained procedures tracking Education Code sections 44660 et seq., a directive that the employee undergo a consecutive annual evaluation is the functional equivalent of an unsatisfactory evaluation, and thus adverse.

Unlawful motive is the specific nexus required in the establishment of a prima facie case. Unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. PERB has developed and applies a set of “nexus” factors in determining whether a charging party has alleged a prima facie case of retaliation. Although suspicious timing of the employer’s adverse action in proximity to the employee’s protected conduct is an important factor (North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate 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 additional factors must also be present: (1) the employer’s disparate treatment of the employee (State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the employer’s departure from established procedures and standards when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the employer’s inconsistent or contradictory justifications for its actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the employer’s failure to offer the employee justification at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the employer’s unlawful motive. (North Sacramento; Novato Unified School District (1982) PERB Decision No. 210.)

An employee organization’s duty of fair representation runs to the employee, and is enforced by a charge against the employee organization, not against the employer.

An employee organization’s duty of fair representation runs to the employee, and is enforced by a charge against the employee organization, not against the employer. A prima face case of retaliation is established by allegations that the employee engaged in protected activity, the employer knew thereof, the employer took action against or adverse to the interest of the employee, and the employer acted “because of” the employee’s protected activity. The motive (“because of”) element is established by direct proof or inferred from the record as a whole. An inference of unlawful motive, i.e., the “nexus” between the protected conduct and the employer’s challenged action, may be found in facts which suggest an unlawful motive, including suspicious timing, disparate treatment, departure from established policies and procedures, and employer justifications which are exaggerated, inadequate, inconsistent or contradictory.

Under our precedents only an employee organization, and not an individual employee, may bring a charge of domination or interference with an employee organization. Charging party, who makes her allegations as an individual employee and not as an organizational agent or representative, lacks standing to charge her employer with domination or interference with administration of an employee organization.

Background events may be relied upon in characterizing conduct falling within the limitations period. (Sacramento City Unified School District (1982) PERB Decision No. 214; Marin Community College District (1980) PERB Decision No. 145, Proposed Decision, p. 45; Machinists Local v. National Labor Relations Board (1960) 362 U.S. 411, 416 [events occurring prior to the limitations period may be utilized to shed light on the true character of matters occurring within the limitations period].)

Background events may be relied upon in characterizing conduct falling within the limitations period. (Sacramento City Unified School District (1982) PERB Decision No. 214; Marin Community College District (1980) PERB Decision No. 145, Proposed Decision, p. 45; Machinists Local v. National Labor Relations Board (1960) 362 U.S. 411, 416 [events occurring prior to the limitations period may be utilized to shed light on the true character of matters occurring within the limitations period].)

Charging party’s allegations establish a prima facie case for tolling EERA’s six-month limitations period while charging party processed a complaint under a non-binding bi-lateral complaint procedure contained in the collective agreement covering charging party’s employment. Charging party’s use of a non-binding bi-lateral complaint procedure qualifies for equitable tolling under PERB precedents where: (1) the procedure is contained in the collective bargaining agreement; (2) charging party’s complaint under the procedure sought to resolve a dispute which is the subject of the unfair practice charge; (3) charging party reasonably and in good faith pursued the procedure; and (4) tolling does not frustrate the purpose of the limitations period by causing surprise or prejudice to the employer.