Decision 2404E – Los Angeles Community College District
Decision Date: December 24, 2014
Decision Type: PERB Decision
Description: The complaint alleged that respondent violated EERA when it issued charging party a confidential letter placing him on administrative leave pending a fitness-for-duty examination, which directed him not to contact faculty members, staff or students about the subject of the letter.
Disposition: The ALJ concluded that respondent’s directive to charging party constituted unlawful interference with protected rights. The Board affirmed the proposed decision and adopted it as the decision of the Board itself as supplemented by a discussion of the respondent’s exceptions.
Perc Vol: 39
Perc Index: 82
400.01000 – In General; Standards
PERB does not look favorably on overbroad employer directives that employees would construe as prohibiting lawful speech or other protected activity; to prove interference, a charging party need not establish that the rule was promulgated in response to protected activity, that it expressly restricts protected activity or that it expressly threatens discipline; rather, the question is whether the employer rule would tend to chill employees in the exercise of their statutory rights; when given its reasonable meaning, considered in the context in which it was given and construed against the employer to the extent of any ambiguities, the employer’s directive not to contact faculty, staff or students in a letter stamped “confidential” would tend to chill employees in the exercise of protected activities including discussing concerns about working conditions with co-workers or pursing a grievance; while an employer may demand confidentiality in its investigations in certain circumstances, the burden is squarely on the employer to demonstrate that confidentiality is necessary to preserve the integrity of the investigation; an employer fails to establish its affirmative defense based on operational necessity where it routinely prohibits employees placed on administrative leave from talking about the substance of the investigation without justifying its desire for confidentiality.