Decision 2687H – Trustees of the California State University (Northridge)

LA-CE-1276-H

Decision Date: December 13, 2019

Decision Type: PERB Decision

Description:  Charging Parties Statewide University Police Association (SUPA) and Yolanda Abundiz (Abundiz) excepted to a proposed decision dismissing their charge, which alleged that the Trustees of the California State University (Northridge) (CSU) violated the Higher Education Employer-Employee Relations Act by investigating Abundiz.  The ALJ found that charging parties failed to prove that CSU engaged in unlawful interference or retaliation.

Disposition:  The Board adopted the proposed decision with one adjustment and subject to the Board’s discussion.

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Decision Headnotes

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

A prima facie case of interference is established by evidence that an employer’s conduct tends to or does result in some harm to employee rights under our statutes. Once a charging party has established a prima facie case of interference, the burden shifts to the employer. The employer’s burden is dictated by the degree of harm involved. Where the employer’s conduct causes or tends to cause only slight harm to protected rights, the employer may justify its actions based on “operational necessity,” and PERB will then balance the employer’s asserted interests against the harm to protected rights; if the harm to employee rights outweighs the asserted business justification, a violation will be found. On the other hand, if the harm is “inherently destructive of protected rights,” the employer must show that the interference was caused by circumstances beyond its control and that no alternative course of action was available. (pp. 3-4.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Investigations into employee misconduct may serve a legitimate business purpose. PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in their exercise of protected rights. Although a charging party can establish a prima facie case of interference without evidence of the employer’s motive, we may examine motive at the affirmative defense stage of our analysis if the charging party alleges that the employer’s purported business justification was pretextual or was not the “but for” cause of the employer’s action. (p. 4.) PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

An employer’s conduct during an investigation can be unlawful even if the employer lawfully decided to investigate potential misconduct. (p. 5, fn. 6.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.04000 – Union or Employee Misconduct

PERB’s analysis of an employer’s affirmative defense to an interference allegation may turn on different factors where it appears that its motives were mixed, i.e., where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct. (p. 5.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Where there is evidence that the respondent’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” [Citation.] (Adopting proposed decision at p. 38.)

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 subjective reactions of the employee. [Citation.] “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” [Citation.] (Adopting proposed decision at pp. 30-31.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

The initiation of an investigation into allegations which could lead to disciplinary action by the employer may be considered to be an adverse action against the investigated employee, regardless of whether disciplinary action actually results. [Citations.] This is true for investigations initiated at the behest of management [citation], and those that were undertaken as a result of complaints against the employee made by another employee or third parties, including by representatives of the union. [Citations.] (Adopting proposed decision at p. 31.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.07000 – Parties

Where underlying unfair practice charge listed both union and alleged discriminatee as charging parties, but complaint and proposed decision listed only union as charging party, the Board noted that in practical effect, there is often no difference in the outcome of a discrimination charge, irrespective of whether the charging parties include the alleged discriminatee, her union, or both. Given the possibility that this technical question could impact who has right to seek reconsideration or judicial review of Board’s decision, the Board clarified that both union and alleged discriminatee were charging parties.

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

A prima facie case of interference is established by evidence that an employer’s conduct tends to or does result in some harm to employee rights under our statutes. (County of Santa Clara (2018) PERB Decision No. 2613-M, p. 8.) Once a charging party has established a prima facie case of interference, the burden shifts to the employer. (Ibid; County of Orange (2018) PERB Decision No. 2611-M, adopting proposed decision at p. 31; Carlsbad Unified School District (1979) PERB Decision No. 89, pp. 10-11.) The degree of harm dictates the employer’s burden. (County of Orange, supra, PERB Decision No. 2611-M, adopting proposed decision at p. 31.) Where the employer’s conduct causes or tends to cause only slight harm to protected rights, the employer may justify its actions based on “operational necessity,” and PERB will then balance the employer’s asserted interests against the harm to protected rights; if the harm to employee rights outweighs the asserted business justification, a violation will be found. (County of Santa Clara, supra, PERB Decision No. 2613-M, p. 8.) On the other hand, if the harm is “inherently destructive of protected rights,” the employer must show that the interference was caused by circumstances beyond its control and that no alternative course of action was available. (Ibid.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Overruling in part State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S, p. 14, Board clarified that it does not adhere to a “general rule” that investigations into employee misconduct serve a legitimate business purpose. Rather, PERB examines the facts and circumstances of each specific case in determining the extent to which the employer has demonstrated a legitimate purpose that outweighs any tendency the investigation may have to coerce employees or labor organizations in the exercise of protected rights.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.04000 – Union or Employee Misconduct

Factors which PERB considers where an employer asserts it had reasonable grounds for believing that an employee engaged in misconduct that was intertwined with arguably protected conduct may vary from caes where employer asserts a business justification defense. (See p. 5, citing Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31 [employer may investigate if it has a valid reason for legitimately believing employee went beyond the bounds of protected activity and engaged in misconduct, but if employer subsequently learns that the facts do not support this belief, the employer must immediately cease the investigation and notify all affected employees regarding its outcome]; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 22-23 [employer’s surveillance unlawful, even though it was intended to document a union’s potential access violation, because the underlying access policy was not lawful].)