Decision 2445E – Santa Maria Joint Union High School District

In the employment law context, cat’s paw refers to an innocent or unwitting person or entity being used as a conduit to accomplish another’s purpose; PERB employs a cat’s paw theory of liability, referred to as subordinate bias liability; the unlawful motive of a subordinate supervisorial employee may be imputed to the decision-maker responsible for authorizing the adverse action where the lower-level official’s recommendation, evaluation or report was motivated by the employee’s protected conduct, the lower-level official intended for their conduct to result in adverse action, and the lower level official’s conduct was a motivating factor or proximate cause of the decision to take adverse action.

An e-mail from a member of the employee organization’s Election Committee that referred to a bargaining unit member as an “aggressive jerk” may show animus or hostility toward that member but does not demonstrate unlawful animus directed towards that bargaining unit member because of protected activities.

By filing grievances and a PERB charge that aimed to remove an employee from a department chair position, the employee organization did not “attempt” to cause the school district to retaliate against an employee for engaging in protected activity; to establish a violation of EERA section 3543.6, subdivision (a), the school district must demonstrate that if it were to remove the employee from the department chair position, such conduct would constitute an unlawful retaliatory act under Novato and that the employee organization affirmatively caused or consciously attempted to cause the school district to commit the unlawful retaliatory act; where the school district usurped the employee organization’s role in conducting department chair elections, ordered that the name of an employee found ineligible by the employee organization to run in an election for department chair be placed on the ballot, and recognized that employee as the victor in an election that was not sanctioned by the employee organization, the employer failed to satisfy its burden of demonstrating that it was an unwitting tool or mere accomplice in the employee organization’s unlawful retaliatory scheme; instead, the school district was the principal actor that set in motion the circumstances that created the controversy; accordingly, a charge under EERA section 3543.6, subdivision (a) could not stand.

Factual allegations in a related unfair practice charge, where not contradicted or disputed by the charging party, can be relied on to provide a more complete picture of the relevant factual circumstances of the charge under investigation. Although PERB Regulation 32620, subdivision (d), requires the Board agent to advise the charging party in writing of any charge deficiencies in a warning letter, an amendment to a charge does not necessarily require issuance of a second warning letter; while the Board agent has the duty to assist a charging party to state the required information in proper form and answer procedural questions, they have no duty beyond the initial warning letter to assist the charging party in perfecting their charge; the decision whether to issue more than one warning letter in any particular case lies within the sole discretion of the Office of the General Counsel.

In judging the factual sufficiency of charge allegations, PERB looks to see whether the allegations describe the “who, what, when, where and how” of an unfair practice; mere legal conclusions are insufficient to state a prima facie case; statement in a declaration, “[i]n response to my exercise of protected activities I was told by an [sic] Faculty Association Election Committee member that I needed to stop because I was going to ‘[f word] it up,’” lacked sufficient factual detail and context and therefore was insufficient to establish the required nexus element in a retaliation case.