Decision 2479E – Los Angeles Unified School District

Substitute employees are “at-will” under the Education Code and, as provided therein, subject to dismissal at any time; they are not entitled to Education Code due process procedures afforded permanent school employees; substitute employees are, however, “public school employees” with the meaning of EERA and, as provided therein, enjoy the same rights to form, join and participate in the activities of employee organizations of their own choosing as any other public school employee; the elements of a prima facie case remain the same, regardless of an employee’s at-will or similar status and regardless of the procedural protections to which the employee might be entitled to in a different forum.

Substitute employees are “at-will” under the Education Code and, as provided therein, subject to dismissal at any time; they are not entitled to Education Code due process procedures afforded permanent school employees; substitute employees are, however, “public school employees” with the meaning of EERA and, as provided therein, enjoy the same rights to form, join and participate in the activities of employee organizations of their own choosing as any other public school employee; the elements of a prima facie case remain the same, regardless of an employee’s at-will or similar status and regardless of the procedural protections to which the employee might be entitled to in a different forum.

An employer that is not required to show “cause” to terminate an employee under a different statutory scheme is still required to overcome a charging party’s proven prima facie case with persuasive evidence that it took adverse action against the charging party for a non-retaliatory reason; a charging party has the right to attempt to discredit or undermine the employer’s stated reason for the adverse action notwithstanding the charging party’s at-will status; the role PERB plays in retaliation cases is shaped by the specific labor relations concern underlying the statutory scheme; PERB’s role is to ensure that public employees can exercise their right to participate in union and other organizational activities free of adverse action by the employer; the reason proffered by the employer for the adverse action is necessarily what must be examined by PERB in determining whether it is pretextual or, in cases involving dual motives, whether it is the “but for” cause for the adverse action; it matters not whether the proffered reason for the adverse action meets external law or contractual standards except to the extent that deficiencies in the employer’s discipline case against the employee evidences an unlawful retaliatory motive; in a case involving the termination of an at-will employee, PERB must examine the employer’s exercise of discretion, but not to second guess or judge it for any other reason than to ensure that the employer’s exercise of discretion was not motivated by the employee’s exercise of protected rights; when assessing the persuasiveness of the employer’s affirmative defense, PERB must inquire fully into all issues in order to establish that the employers’ affirmative defense was honestly invoked and its justification was in fact the cause of the adverse action.

PERB and NLRB have long recognized the appropriateness of assessing witness credibility based on non-observational criteria, such as inconsistent pretrial statements or other documentary evidence; selective memory on cross examination, evasive, exaggerated or inconsistent testimony; a party’s failure to offer available witness testimony; inherent probabilities and reasonable inferences.