Decision 2654E – Claremont Unified School District

EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.)

EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.)

Interference does not require evidence of unlawful motive, only that the employer conduct at issue tends to or does create at least slight harm to employee rights. If the prima facie case is established, PERB balances the degree of harm to protected rights against any legitimate and substantial business justification asserted by the employer. (p. 20, 22.)

In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct. (p. 20.) In cases involving broad no-contact directives, the employer bears the burden of proving the existence of an operational necessity for the directive as to that specific employee under the particular circumstances. (pp. 20-21.) The key to an appropriate directive is that it be tailored to the circumstances, particularly the unprotected conduct, at issue. (pp. 23-24.) A blanket prohibition on any communications with other District employees based on asserted concerns regarding harassment and intimidation is overbroad where the employee’s precipitating communication was neither harassing nor intimidating. (p. 23.)

In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct. (p. 20.) In cases involving broad no-contact directives, the employer bears the burden of proving the existence of an operational necessity for the directive as to that specific employee under the particular circumstances. (pp. 20-21.) The key to an appropriate directive is that it be tailored to the circumstances, particularly the unprotected conduct, at issue. (pp. 23-24.) A blanket prohibition on any communications with other District employees based on asserted concerns regarding harassment and intimidation is overbroad where the employee’s precipitating communication was neither harassing nor intimidating. (p. 23.)

EERA section 3543 protects employees’ “right to communicate with co-workers about working conditions.” (p. 21.) An overbroad directive prohibiting an employee from “discussing his working conditions with his coworkers” violates this right, even if the directive allows him to communicate with his union representatives, including those who are also employees. (pp. 21-22.)

A finding of interference, coercion, or restraint does not require evidence that any employee subjectively felt threatened or intimidated, or was in fact discouraged from participating in protected activity; the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity. Thus, the fact that an employer’s no-contact order did not stop a particular employee from continuing to engage in protected communications does not preclude a finding that the order would have discouraged a reasonable employee from doing so. (p. 22.)

To establish a prima facie case of retaliation in violation of the EERA, the charging party must show that: (1) the employee exercised rights under EERA, (2) the employer had knowledge of the exercise of those rights, (3) the employer took adverse action against the employee, and (4) the employer took the action because of the exercise of those rights. (p. 13.)

Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.)

The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason justification for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.)

The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.)

The Board uses an objective standard to determine whether an employer’s action is adverse and will not rely on either the employee’s subjective reaction or the employer’s intent. (pp. 14, 15.) The test is whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. (p. 14.)

Placing documents that could support future discipline in an employee’s personnel file is an adverse action. The document need not be disciplinary itself or include a threat of discipline; it is enough that the document conclusively accuses the employee of misconduct or substandard performance. (pp. 14-15.) The District’s Cease and Desist Letter definitively accused the employee—already facing potential dismissal for inappropriate conduct—of “once again” insubordinately engaging in inappropriate communications contrary to prior directives. Because the letter warned the employee that further such communications may be used to amend pending disciplinary charges and advised that it would be placed in his personnel file, a reasonable person in the employee’s place would consider the letter adverse to his or her employment. (pp. 15-16.)

Placing documents that could support future discipline in an employee’s personnel file is an adverse action. The document need not be disciplinary itself or include a threat of discipline; it is enough that the document conclusively accuses the employee of misconduct or substandard performance. (pp. 14-15.) The District’s Cease and Desist Letter definitively accused the employee—already facing potential dismissal for inappropriate conduct—of “once again” insubordinately engaging in inappropriate communications contrary to prior directives. Because the letter warned the employee that further such communications may be used to amend pending disciplinary charges and advised that it would be placed in his personnel file, a reasonable person in the employee’s place would consider the letter adverse to his or her employment. (pp. 15-16.)

Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.) The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.)

The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.)

Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.)

The District argued it took adverse action against an employee in the larger context of his continuing harassing and intimidating behavior toward co-workers. The Board found this context of minimal weight where the conduct for which the employee received the adverse action was neither harassing nor intimidating. (pp. 17-19.)

Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.) The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason justification for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.)

Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.)

Under PERB Regulation 32300, the Board cannot consider matters not contained in the record when deliberating a party’s exceptions. Thus an external investigator’s report cited in the employer’s exceptions but that it failed to enter into the record could not be considered in determining whether the employer had a legitimate business justification for issuing an employee an order not to contact other employees. (p. 17, fn. 14.)

Under PERB Regulation 32300, the Board cannot consider matters not contained in the record when deliberating a party’s exceptions. Thus an external investigator’s report cited in the employer’s exceptions but that it failed to enter into the record could not be considered in determining whether the employer had a legitimate business justification for issuing an employee an order not to contact other employees. (p. 17, fn. 14.)