Decision 2391H – Trustees of the California State University (East Bay)

Invoking the procedures and protections of a CBA by filing grievances and participating in grievance meetings pursuant to the CBA is protected activity.

Filing unfair practice charges under HEERA and any of the other statutes PERB administers, and participating in PERB processes, are protected conduct.

Invoking the procedures and protections of a CBA by filing grievances and participating in grievance meetings pursuant to the CBA is protected activity. Filing unfair practice charges under HEERA and any of the other statutes PERB administers, and participating in PERB processes, are protected conduct.

Under the facts of this particular case, where Charging Party elected to arbitrate his appeal of his suspension and termination, and because his claim that his termination was motivated by his filing this unfair practice charge was clearly presented to the arbitrator for consideration, deferral to that arbitration procedure is appropriate.

Under the facts of this particular case, where Charging Party elected to arbitrate his appeal of his suspension and termination, and because his claim that his termination was motivated by his filing this unfair practice charge was clearly presented to the arbitrator for consideration, deferral to that arbitration procedure is appropriate.

A denial of tenure and promotion constitute an adverse action. As a Penal Code section 626.4 order essentially places an employee on involuntary administrative leave, it constitutes an adverse action

Charging Party failed to establish any factual or legal basis to attribute to the decision-makers any bias that may have been harbored by any of their subordinates, let alone that any subordinates harbored bias based on Charging Party’s grievance activities. For these reasons, Charging Party failed to establish a prima facie case for retaliation or discrimination on the basis of his protected activities.

CSUEB demonstrated that it had, and acted because of, an alternative, non-discriminatory reason for denying Charging Party tenure and promotion, specifically Charging Party’s inadequate performance in the areas of instructional achievement, academic achievement and university and community service.

Charging Party’s improper workplace conduct gave the employer cause for non-discriminatory discipline, and CSUEB has proved through independent and competent evidence both the existence of such improper workplace conduct and that this conduct motivated its response.

Charging Party failed to present evidence that the decision-makers had knowledge of his protected activity. Charging Party failed to establish any factual or legal basis to attribute to the decision-makers any bias that may have been harbored by any of their subordinates, let alone that any subordinates harbored bias based on Charging Party’s grievance activities. For these reasons, Charging Party failed to establish a prima facie case for retaliation or discrimination on the basis of his protected activities.

PERB will prospectively not defer unfair practice charges filed under HEERA that allege retaliation for filing PERB charges or otherwise participating in PERB processes. Under the facts of this particular case, where Charging Party elected to arbitrate his appeal of his suspension and termination, and because his claim that his termination was motivated by his filing this unfair practice charge was clearly presented to the arbitrator for consideration, deferral to that arbitration procedure is appropriate. Since Charging Party thwarted the arbitration process, most particularly by walking out of the hearing in the middle of the proceedings, thereby preventing the arbitrator from considering unfair practice claims, he cannot now come before PERB and seek to litigate unfair practice claims of retaliation and discrimination.

Charging Party may not, by his own conduct, defeat deferral by refusing to participate in the arbitration, and then claim the arbitration award was repugnant to HEERA. To hold otherwise and permit Charging Party a second opportunity to litigate his discipline case would undermine the balance struck by the deferral policy. A party cannot avoid deferral simply by failing to pursue available contractual procedures.