Decision 2563E – Napa Valley Community College District

SF-CE-3166-E

Decision Date: May 25, 2018

Decision Type: PERB Decision

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Perc Vol: 42
Perc Index: 154

Decision Headnotes

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

The right to “form, join, and participate” in employee organization activity is not textually limited to those activities sanctioned by the exclusive representative. Additionally, the Board has long held that this right extends to participation in group activity—or actions that are the logical continuation of group activity—not merely employee organization activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

An employee engages in protected activity by asserting a violation of a labor agreement even outside the contractual grievance process.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Grievance processing, whether done by an individual seeking to invoke the protections or benefits of a collectively bargained agreement, or by the exclusive representative seeking to enforce its agreement, is protected activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

In general, an employee’s speech is protected if it is related to matters of legitimate concern to the employees as employees.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

The right of discussion is not limited to conversations about matters specific to the bargaining unit. School employees and employee organizations have a right to communicate at the worksite, free from employer restriction, about specific terms and conditions of employment as well as matters of more general political, social or economic concern to employees. This right is limited if the relationship between the political activity and the employment relationship is so attenuated as to lose its protection.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Speech advocating a change in federal spending priorities on education was not so attenuated from the legitimate subject of instructor pay as to lose its protection.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

The Board will presume that employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in EERA protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

The “but for” test is how PERB assesses the employer’s affirmative defense once a charging party has established a prima facie case of retaliation. It is irrelevant to the analysis of a prima facie case.

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

Taking adverse action for unsubstantiated reasons may be evidence of unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Insufficient allegations of a cursory investigation where charge alleged trivial errors in letter from employer and failed to establish that the employer had a practice of interviewing employees in similar circumstances.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.14000 – Other/In General

The Board has found direct evidence of motive when an employer announces that it is taking or has taken an adverse action because of or in response to an employee’s protected activity.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

The “but for” test is how PERB assesses the employer’s affirmative defense once a charging party has established a prima facie case of retaliation. It is irrelevant to the analysis of a prima facie case.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of Knowledge of Protected Activity

Charge failed to demonstrate employer knowledge of employee’s prior PERB charges. Although employer was aware of a settlement agreement, it was not necessarily aware of the agreement’s contents. Employer’s reference to a court decision discussing the agreement was a readily apparent explanation for its knowledge of the agreement.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

Conclusory allegations without supporting facts are insufficient to establish a prima facie case.