Decision 2381E – Monterey Peninsula Unified School District

SF-CE-2830-E

Decision Date: June 27, 2014

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 12

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

Constitutional due process rights are beyond PERB’s remit to enforce. PERB only has jurisdiction to enforce the statutes it is charged with administering and has no jurisdiction to enforce constitutional protections.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

Constitutional due process rights are beyond PERB’s remit to enforce. PERB only has jurisdiction to enforce the statutes it is charged with administering and has no jurisdiction to enforce constitutional protections.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – 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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

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. 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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

To establish a prima facie case of retaliation in violation of EERA section 3543.5(a), the charging party must show that: (1) the employee exercised rights guaranteed by EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took action against or adverse to the interest of the employee; and (4) the employer acted because of the employee’s exercise of the guaranteed rights. (Novato Unified School District (1982) PERB Decision No. 210.).

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – 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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

An employer giving an employee notice of the intent to terminate or discipline (viz., a threat of termination or discipline) for an unlawful reason would also violate employees’ statutory protections and thus by itself constitute an unfair practice. Where a charging party challenges as unlawful under our statutes an employer’s notice of intent to terminate or discipline, and thereafter, upon completion of the dismissal proceedings terminates or disciplines the employee, a timely filed charge, alleging that the notice of termination or discipline either was unlawfully motivated or interfered with the exercise of employee rights, will be deemed sufficient notice to the employer that the notice of termination or discipline, and any action taken thereafter by the employer based on that notice, are subject to review by this Board. A responding party is not prejudiced by having to defend against the allegation that a notice of dismissal or discipline (viz., the threat to dismiss or discipline) and an actual imposition of dismissal or discipline are related violations. The second action, imposition, is but the implementation of the first. District’s directive that charging party not contact employees who wished not to have such contact is not an adverse action, since no employee was obliged to assist charging party with his defense, and charging party could compel testimony even from recalcitrant employee witnesses by subpoena. Although a directive that an employee not contact other employees may conceivably interfere with employee rights explicitly protected by EERA to “form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation” (EERA, § 3543(a)) or rights arguably protected under EERA for mutual aid and protection, charging party has failed to allege a prima facie case for interference under EERA. To establish a prima facie case of interference, a charging party must allege that the employer’s conduct does or tends to result in some harm to employee EERA rights. Requiring employees to meet the requirements of their profession is not an adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

An employer giving an employee notice of the intent to terminate or discipline (viz., a threat of termination or discipline) for an unlawful reason would also violate employees’ statutory protections and thus by itself constitute an unfair practice. Where a charging party challenges as unlawful under our statutes an employer’s notice of intent to terminate or discipline, and thereafter, upon completion of the dismissal proceedings terminates or disciplines the employee, a timely filed charge, alleging that the notice of termination or discipline either was unlawfully motivated or interfered with the exercise of employee rights, will be deemed sufficient notice to the employer that the notice of termination or discipline, and any action taken thereafter by the employer based on that notice, are subject to review by this Board. A responding party is not prejudiced by having to defend against the allegation that a notice of dismissal or discipline (viz., the threat to dismiss or discipline) and an actual imposition of dismissal or discipline are related violations. The second action, imposition, is but the implementation of the first.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

An employer giving an employee notice of the intent to terminate or discipline (viz., a threat of termination or discipline) for an unlawful reason would also violate employees’ statutory protections and thus by itself constitute an unfair practice. Where a charging party challenges as unlawful under our statutes an employer’s notice of intent to terminate or discipline, and thereafter, upon completion of the dismissal proceedings terminates or disciplines the employee, a timely filed charge, alleging that the notice of termination or discipline either was unlawfully motivated or interfered with the exercise of employee rights, will be deemed sufficient notice to the employer that the notice of termination or discipline, and any action taken thereafter by the employer based on that notice, are subject to review by this Board. A responding party is not prejudiced by having to defend against the allegation that a notice of dismissal or discipline (viz., the threat to dismiss or discipline) and an actual imposition of dismissal or discipline are related violations. The second action, imposition, is but the implementation of the first.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

An employer giving an employee notice of the intent to terminate or discipline (viz., a threat of termination or discipline) for an unlawful reason would also violate employees’ statutory protections and thus by itself constitute an unfair practice. District’s directive that charging party not contact employees who wished not to have such contact is not an adverse action, since no employee was obliged to assist charging party with his defense, and charging party could compel testimony even from recalcitrant employee witnesses by subpoena. Although a directive that an employee not contact other employees may conceivably interfere with employee rights explicitly protected by EERA to “form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation” (EERA, § 3543(a)) or rights arguably protected under EERA for mutual aid and protection, charging party has failed to allege a prima facie case for interference under EERA. To establish a prima facie case of interference, a charging party must allege that the employer’s conduct does or tends to result in some harm to employee EERA rights. Requiring employees to meet the requirements of their profession is not an adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

While disparate enforcement of any work rule by an employer would be circumstantial evidence of improper motive, charging party provided no evidence, other than mere speculation, that other District teachers were not required to produce lesson plans.


504.14000 – Other/In General

Unlawful motive is “the specific nexus required in the establishment of a prima facie case” of retaliation. “[D]irect proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus . . . unlawful motive can be established by circumstantial evidence and inferred from the record as a whole.” (Novato Unified School District (1982) PERB Decision No. 210).

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

The limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. This policy recognizes that the question of whether a public employee may be terminated or disciplined is frequently subject to due process procedures under a collective bargaining agreement or memorandum of understanding, or under other regulatory or statutory procedures, and, consequently, there may be a significant delay between an employer’s announcement of the intent to terminate or discipline, and the parties’ ensuing completion of applicable due process procedures. Where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.02000 – Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine

The limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. This policy recognizes that the question of whether a public employee may be terminated or disciplined is frequently subject to due process procedures under a collective bargaining agreement or memorandum of understanding, or under other regulatory or statutory procedures, and, consequently, there may be a significant delay between an employer’s announcement of the intent to terminate or discipline, and the parties’ ensuing completion of applicable due process procedures. Where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

The limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. This policy recognizes that the question of whether a public employee may be terminated or disciplined is frequently subject to due process procedures under a collective bargaining agreement or memorandum of understanding, or under other regulatory or statutory procedures, and, consequently, there may be a significant delay between an employer’s announcement of the intent to terminate or discipline, and the parties’ ensuing completion of applicable due process procedures. Where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.04000 – Continuing Violation

The limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. This policy recognizes that the question of whether a public employee may be terminated or disciplined is frequently subject to due process procedures under a collective bargaining agreement or memorandum of understanding, or under other regulatory or statutory procedures, and, consequently, there may be a significant delay between an employer’s announcement of the intent to terminate or discipline, and the parties’ ensuing completion of applicable due process procedures. Where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

The limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. This policy recognizes that the question of whether a public employee may be terminated or disciplined is frequently subject to due process procedures under a collective bargaining agreement or memorandum of understanding, or under other regulatory or statutory procedures, and, consequently, there may be a significant delay between an employer’s announcement of the intent to terminate or discipline, and the parties’ ensuing completion of applicable due process procedures. Where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.