Decision 2452E – Hartnell Community College District

SF-CE-2984-E

Decision Date: September 4, 2015

Decision Type: PERB Decision

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Perc Vol: 40
Perc Index: 56

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Charging party’s request to be represented in investigative proceedings by someone other than a representative of the exclusive representative was not protected by EERA.) An employee’s threat to seek legal assistance from the Union or to file his or her own charge with PERB is protected, so long as made in good faith. The statutory protection does not depend upon the merits of the threatened charge or legal action. Employee’s threat, made to high-ranking human resources official, to file a charge with PERB is employee’s rights were not respected protected by EERA. p. 39.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.03000 – Activities for Nonexclusive Representative – Protected Right

Charging party’s request to be represented in investigative proceedings by someone other than a representative of the exclusive representative was not protected by EERA.

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

An employee’s threat to seek legal assistance from the Union or to file his or her own charge with PERB is protected, so long as made in good faith. The statutory protection does not depend upon the merits of the threatened charge or legal action. Employee’s threat, made to high-ranking human resources official, to file a charge with PERB is employee’s rights were not respected protected by EERA. p. 39.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.06000 – Demands for Change in Working Conditions

An employee’s threat to seek legal assistance from the Union or to file his or her own charge with PERB is protected, so long as made in good faith. The statutory protection does not depend upon the merits of the threatened charge or legal action. Employee’s threat, made to high-ranking human resources official, to file a charge with PERB is employee’s rights were not respected protected by EERA. p. 39.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.12000 – Insistence on Union Representation

Because charging party has not alleged that an individual was an officer, representative or agent of the exclusive representative, and, in fact, admitted that the individual was not authorized to act on behalf of the exclusive representative, charging party has not sufficiently alleged that s/he engaged in protected activity by requesting the presence of that individual at an investigative meeting. p. 35. Although EERA guarantees public school employees the right to act in concert with other employees for the purpose of bargaining collectively or for providing mutual aid or protection to one another, where a majority of employees in an appropriate unit has chosen a representative, EERA expressly limits the rights of all unit employees, including their rights to self-representation and to act in concert with others, to further the statutory scheme of collective bargaining through exclusive representation. pp. 36-37.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

An employer may freely express or disseminate its views, arguments or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. The safe harbor for employer speech does not apply, however, to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship or deliberate exaggerations. The Board looks to the surrounding circumstances in which employer speech occurs, including the employer's power to control terms and conditions of employment and the economic dependence of employees on the employer, to determine whether, when viewed in context, employer speech conveys a threat of reprisal or force, a promise of benefit or a preference for one employee organization over another. p. 25. Although PERB’s test for employer interference requires a balancing of protected rights against the employer’s asserted justification of operational necessity, because, as noted above, during the initial investigation of a charge. PERB accepts the charging party's factual allegations as true, it is generally not appropriate to dismiss without a hearing interference allegations on the basis of an affirmative defense, such as an employer's right to free speech, unless the defense can be established as a matter of law. p. 25. Resolving factual disputes raised by the employer's affirmative defense should be considered in a formal hearing and not during the initial investigation into a charge or upon Board review of a dismissal/refusal to issue a complaint. p. 29.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.01000 – In General

Because EERA protects both the employees’ choice of a representative and their representative’s designation of its agents from employer interference, allegation that human resources official told employee that she, rather than employee, would choose employee’s union representative for him constituted prima facie case of interference with protected rights. Employer statements that assert a right to influence or direct employees’ choice of a representative interfere with protected rights, because they convey the impression that engaging in union or other concerted activity is futile. pp. 56-57.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

Because EERA protects both the employees’ choice of a representative and their representative’s designation of its agents from employer interference, allegation that human resources official told employee that she, rather than employee, would choose employee’s union representative for him constituted prima facie case of interference with protected rights. Employer statements that assert a right to influence or direct employees’ choice of a representative interfere with protected rights, because they convey the impression that engaging in union or other concerted activity is futile. pp. 56-57.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.01000 – In General

Employer statements asserting a right to influence or direct the employees’ choice of a representative are impliedly coercive, because they convey the impression that engaging in union or other concerted activity is futile. Allegation that human resources official told employee that she, rather than employee, would choose employee’s union representative for him constituted prima facie case of interference with protected rights.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.02000 – Express or Implied Threats

Employer statements asserting a right to influence or direct the employees’ choice of a representative are impliedly coercive, because they convey the impression that engaging in union or other concerted activity is futile. Allegation that human resources official told employee that she, rather than employee, would choose employee’s union representative for him constituted prima facie case of interference with protected rights.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Charging party did not allege sufficient facts to demonstrate that he was entitled to probationary status, and corresponding pre-termination procedural rights, under the Education Code, or that employer departed from established procedure, where charging party alleged only that he was “offered” additional work, but did not specify the relevant time period of this offer, how much additional work was offered, or whether he accepted the offer, so that it was unclear whether he had worked sufficient time in consecutive semesters to qualify for due process protections under Education Code at the time of his termination.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Employer’s efforts to discover and provide a legitimate, nondiscriminatory reason for terminating employee after he was already terminated supports inference of unlawful, discriminatory motive, because any legitimate, non-discriminatory reason for taking adverse action would have already been known to employer’s decision makers as of the date of its decision to terminate employee. p. 44.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.12000 – Employer Statements or Conduct; Threats

Employee’s allegation that human resources official told him that she would choose his union representative was evidence of employer hostility to protected rights and thus supported inference that employee was later terminated in retaliation for protected activity.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

The charging party is entitled to a warning letter identifying any deficiencies before the charge is dismissed. (PERB Reg. 32620, subd. (d).) Because charging party’s allegation that he was denied payment for hours actually worked in retaliation for his protected activity, the dismissal was reversed and the charge remanded for issuance of a complaint.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

The charging party is not required to provide legal authority or identify the legal theory or theories of the case. PERB will disregard discrepancies or omissions in the specific statutory provisions cited by a charging party and focus instead on the substantive theories of liability implicated by the charging party’s factual allegations. Where charging party alleges facts that support separate interference and discrimination allegations, PERB should consider both theories. pp. 50, fn. 20, 53-54.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

The charging party is not required to provide legal authority or identify the legal theory or theories of the case. PERB will disregard discrepancies or omissions in the specific statutory provisions cited by a charging party and focus instead on the substantive theories of liability implicated by the charging party’s factual allegations. Where charging party alleges facts that support separate interference and discrimination allegations, PERB should consider both theories. pp. 50, fn. 20, 53-54.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.11000 – Response to Charge

Although PERB’s test for employer interference requires a balancing of protected rights against the employer’s asserted justification of operational necessity, because, as noted above, during the initial investigation of a charge. PERB accepts the charging party's factual allegations as true, it is generally not appropriate to dismiss without a hearing interference allegations on the basis of an affirmative defense, such as an employer's right to free speech, unless the defense can be established as a matter of law. p. 25. Resolving factual disputes raised by the employer's affirmative defense should be considered in a formal hearing and not during the initial investigation into a charge or upon Board review of a dismissal/refusal to issue a complaint. p. 29.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

Following Board review of a dismissal, it was unnecessary to remand to the Office of the General Counsel for further investigation, where the charge and supporting documents already contained sufficient information to state a prima facie case of employer interference with protected employee rights. Newly-submitted evidence that became available only after dismissal of the charge may be considered on appeal upon a showing a good cause. However, the evidence, which concerned charging party’s satisfactory performance of job duties for an employer other than the respondent was only marginally relevant at this stage of the proceedings and did not affect any of the issues on appeal.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

Following Board review of a dismissal, it was unnecessary to remand to the Office of the General Counsel for further investigation, where the charge and supporting documents already contained sufficient information to state a prima facie case of employer interference with protected employee rights. Newly-submitted evidence that became available only after dismissal of the charge may be considered on appeal upon a showing a good cause. However, the evidence, which concerned charging party’s satisfactory performance of job duties for an employer other than the respondent was only marginally relevant at this stage of the proceedings and did not affect any of the issues on appeal.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

PERB Regulation 32620, subdivision (d), entitles the charging party to a warning letter identifying any deficiencies before any allegations in the charge is dismissed. Because charging party’s allegation that he was denied payment for hours actually worked in retaliation for his protected activity, the dismissal was reversed and the charge remanded for issuance of a complaint. Pursuant to PERB Regulation 32635, subdivision (b), the Board may supplement the record of an appeal with new supporting evidence only for “good cause.” PERB has generally found “good cause” to do so, when the new allegations or supporting evidence presented in an appeal could not have been discovered by the charging party with the exercise of reasonable diligence before the charge was dismissed, such as when the events giving rise to the new evidence did not occur until after the charge was dismissed. The newly-available evidence, which concerned charging party’s satisfactory performance of job duties for an employer other than the respondent was only marginally relevant at this stage of the proceedings and, although considered by the Board, did not affect any of the issues on appeal.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32620, subdivision (d), entitles the charging party to a warning letter identifying any deficiencies before any allegations in the charge is dismissed. Because charging party’s allegation that he was denied payment for hours actually worked in retaliation for his protected activity, the dismissal was reversed and the charge remanded for issuance of a complaint. Pursuant to PERB Regulation 32635, subdivision (b), the Board may supplement the record of an appeal with new supporting evidence only for “good cause.” PERB has generally found “good cause” to do so, when the new allegations or supporting evidence presented in an appeal could not have been discovered by the charging party with the exercise of reasonable diligence before the charge was dismissed, such as when the events giving rise to the new evidence did not occur until after the charge was dismissed. The newly-available evidence, which concerned charging party’s satisfactory performance of job duties for an employer other than the respondent was only marginally relevant at this stage of the proceedings and, although considered by the Board, did not affect any of the issues on appeal.