Decision 2586E – Chula Vista Elementary School District (Yvellez)

LA-CE-5732-E

Decision Date: September 28, 2018

Decision Type: PERB Decision

Description:  A public school employee excepted to a proposed decision dismissing his complaint and underlying unfair practice charge.  The complaint alleged the employer unlawfully threatened the employee with discipline and investigated him for sending to all District teachers an e-mail expressing concerns regarding the District’s Human Resources Director.  An administrative law judge dismissed the complaint on the ground the e-mail was not protected activity under the EERA.

Disposition:  The Board reversed, holding the employee’s e-mail constituted protected activity, and that the employer retaliated against the employee and interfered with his exercise of protected rights.

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Perc Vol: 43
Perc Index: 60

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

Employee speech, including emails, is generally protected if it relates to matters of legitimate concern to employees as employees, though it may lose its statutory protection in accordance with Rancho Santiago Community College District (1986) PERB Decision No. 602.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.15000 – Speech

The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, e.g., applies to how the speech was made, the speech is protected unless it is so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

Concerns that public employers’ email systems are taxpayer-financed or that allowing employees to send intra-agency emails gives other employee recipients the false impression their employer endorses the email’s content do not constitute “special circumstances” justifying restrictions on employees’ right to engage in protected speech via their employer’s email system.

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

To establish a prima facie case of unlawful interference, the charging party must establish that the respondent’s conduct tends to or does result in some harm to employee rights granted under EERA. The charging party need not suffer an adverse effect; rather, where employer conduct would reasonably tend to discourage protected activity, the likely chilling effect may, itself, constitute unlawful interference.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.09000 – Mail Systems

Under Napa Valley Community College District (2018) PERB Decision No. 2563, all employees granted rightful access to their employer’s email system in the course of their employment have a presumptive right to use the email system to engage in EERA-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances, necessary to

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. The reasonable person test applies when the employer’s alleged adverse action is a threat.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Where the employer’s investigation notice stated the employee inappropriately used the employer’s email system to share derogatory information, a reasonable person may conclude from such notice that misconduct had already been found and discipline was forthcoming. In this case, such notice of an impending investigation is sufficiently unequivocal about future discipline to constitute an adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

An investigation into alleged employee misconduct may constitute an adverse action against the investigated employee, regardless of whether disciplinary action ultimately results. Thus, an investigatory interview, occurring after the employer unequivocally accused the employee of misconduct and after the employer notified the employee it was considering imposing discipline, was an adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

Where the employer’s investigation notice stated the employee inappropriately used the employer’s email system to share derogatory information, a reasonable person may conclude from such notice that misconduct had already been found and discipline was forthcoming. In this case, such notice of an impending investigation is sufficiently unequivocal about future discipline to constitute an adverse action.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

Where an employer’s words or actions reveal that the employer took adverse action against an employee in response to his or her protected activity, such conduct serves as direct evidence of an unlawful motive connecting the protected activity and adverse action.

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

Where an employer’s words or actions reveal that the employer took adverse action against an employee in response to his or her protected activity, such conduct serves as direct evidence of an unlawful motive connecting the protected activity and adverse action.

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

To establish a prima facie case of retaliation, the charging party must show that: (1) the employee exercised rights protected by EERA; (2) the employer knew of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the employee’s exercise of those protected rights.

402.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES
402.01000 – In General

In balancing the competing interests, interference with employee rights outweighs the employer’s proffered business justifications where the employer compounds its error by never informing the employee that it had concluded its investigation and would not impose discipline, thus leaving the employee in an uncertain state and further chilling his protected conduct.

402.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES
402.01000 – In General

Unlawful interference where employer initiates investigation, and corresponding threat of discipline, based solely upon an employee’s email, not after receipt of a facially valid third-party complaint, without taking any time to factually investigate whether the email constituted protected activity.

402.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES
402.01000 – In General

An employer does not commit unlawful interference when it investigates an employee based upon a facially valid complaint of misconduct, even if the alleged misconduct occurs during the employee’s exercise of arguably protected activity, provided that (i) the nature of the complaint legitimately calls into question whether the employee conduct was protected, and (ii) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. Once the employer has sufficient information to determine that the employee’s conduct did not lose its protected status, continuing the investigation is an unfair practice.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.09000 – Mail Systems

Concerns that public employers’ email systems are taxpayer-financed or that allowing employees to send intra-agency emails gives other employee recipients the false impression their employer endorses the email’s content do not constitute “special circumstances” justifying restrictions on employees’ right to engage in protected speech via their employer’s email system.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

An investigation into alleged employee misconduct may constitute an adverse action against the investigated employee, regardless of whether disciplinary action ultimately results. Thus, an investigatory interview, occurring after the employer unequivocally accused the employee of misconduct and after the employer notified the employee it was considering imposing discipline, was an adverse action.