Decision 2671E – Lake Elsinore Unified School District

Under Educational Employment Relations Act section 3541.5, subdivision (b), the Board “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” Because the Board had no power to enforce the parties’ disputed settlement agreement, it could not act on charging party’s “Motion to Review Settlement Agreement Due to EERA Violations and [to] Compel the [Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.” (p. 2., fn. 2.)

To demonstrate that an employer discriminated or retaliated against an employee in violation of Educational Employment Relations Act (EERA) section 3543.5, subdivision (a), 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. The charging party has the initial burden of demonstrating the “because of” element, that is, a causal connection or “nexus” between the adverse action and the protected conduct. Because “retaliatory conduct is inherently volitional in nature,” evidence of unlawful motive is the specific nexus required to establish a prima facie case. (pp. 5-6.)

Discriminatory enforcement of a work rule for the purpose of harassing or intimidating an employee in retaliation for having engaged in protected activity constitutes an adverse action. Here, the evidence did not show any discriminatory enforcement of the collective bargaining agreement’s class size provisions against charging party because kindergarten class sizes at the school did not differ by more than three students, consistent with the collective bargaining agreement. (Adopting proposed decision at p. 22.)

In determining whether evidence of adverse action is established, the Board uses an objective test and will not rely upon the subjective reactions of the employee. The effect on pay and benefits is not the only determiner of whether a transfer constitutes an adverse action. Other factors the Board looks to in transfer situations are increased preparation time to teach a new curriculum and more difficult students in the new assignment. Here, charging party’s reassignment from first grade to kindergarten was an adverse action because charging party had to spend time learning and preparing for a new curriculum, was subjected to more parental scrutiny, and generally had to provide more assistance and attention to kindergarten students than to first grade students. (Adopting proposed decision at pp. 20-21.)

With no evidence to support charging party’s claimed past practice, charging party failed to prove the employer departed from established procedure or policy. (p. 7.)

While the timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor it does not, without more, demonstrate the necessary connection or “nexus” between the adverse action and the protected conduct. Facts establishing one or more of the following additional factors must also be present: (1) the employer’s disparate treatment of the employee; (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists; or (7) any other facts that might demonstrate the employer’s unlawful motive. (Adopting proposed decision at p. 24.)

In light of the concerns raised by the allegations in charging party’s motion that the employer breached the parties’ settlement agreement and that some of the terms of the agreement violated charging party’s rights under the Educational Employment Relations Act, the Board denied charging party’s request to withdraw the charge in this case. (p. 2., fn. 2.)

Charging party’s request for repugnancy review was denied on grounds of untimeliness and failure to establish that the arbitration decision was based upon the same underlying dispute. (Adopting proposed decision at p. 3.)

The Board has the authority to review unalleged violations when the following criteria are met: (1) adequate notice and opportunity to defend has been provided to respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the opportunity to examine and be cross-examined on the issue. The unalleged violation must also have occurred within the applicable statute of limitations period. (Adopting proposed decision at p. 26.)

PERB will award attorneys’ fees only if the charge is without arguable merit and pursued in bad faith. Bad faith includes conduct that is dilatory, vexatious, or otherwise an abuse of process. Here, the employer requested that charging party be ordered to pay its reasonable attorneys’ fees and costs incurred in this matter because she engaged in dilatory tactics. Specifically, that her slow pace in putting on evidence extended the length of the hearing for an additional two days. While charging party’s pace was deliberate, that had more to do with her inexperience as an advocate than bad faith. Nothing suggests her conduct was intended to delay or otherwise frustrate the proceedings. To the contrary, charging party arrived at each day of hearing prepared to prosecute her case. Accordingly, the employer’s request for reasonable attorneys’ fees and costs was denied. (Adopting proposed decision at p. 27.)