Decision 2744E – San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.)

SF-CO-839-E

Decision Date: August 31, 2020

Decision Type: PERB Decision

Description:  Philip Crawford and Dennis Meakin alleged in an amended charge that San Jose/Evergreen Federation of Teachers, AFT Local 6157 and its parent union, American Federation of Teachers, retaliated against them in violation of EERA. Crawford and Meakin sat on the Local 6157 Executive Board, and this case arose from a severe schism between two board factions. PERB’s Office of the General Counsel dismissed the charge, and Crawford and Meakin timely appealed.

Disposition:  The Board affirmed OGC’s dismissal. The Board found several allegations in the amended charge related back to allegations in the initial charge, while other new allegations were untimely.  Analyzing the timely-filed allegations, the Board found that even if proven true, they would not establish that an agent of either respondent took any adverse, retaliatory action that impacted either of charging parties’ employment relationships.

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Decision Headnotes

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

In evaluating a discrimination or retaliation claim, PERB generally applies the same test irrespective of whether the respondent is an employer or a union. In order to establish a prima facie case of retaliation, a charging party must allege facts showing that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes these factors, certain fact patterns nonetheless allow a respondent to prove, by a preponderance of the evidence, that it would have taken the same action even absent the protected activity. (Id. at pp. 15-16.) Additionally, in an unfair practice charge alleging that a union discriminated or retaliated against protected activity, the charging party must allege facts showing that the union’s conduct impacted the employer-employee relationship. (California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S, pp. 27-28; California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S, pp. 13-17, citing Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.04000 – Union Rules and Discipline in General; Union Dues and Fees; Fines, Assessments, Etc.

Even if parent labor organization investigating a schism between a local union’s warring factions were a proper respondent, charging party could not state a prima facie case because he complained of purely internal union matters. By censuring charging party and ordering him to attend board meetings telephonically, parent labor organization did not impact his employment relationship with the employer. Nor did parent labor organization fine him or impact his membership, meaning these allegations do not fall into the narrow Kimmett exception for allegations that a union has failed to establish or follow reasonable internal procedures regarding disciplinary fines or membership restrictions. (See, e.g., Coalition of University Employees (Higgins) (2006) PERB Decision No. 1855-H, adopting warning letter at pp. 2-3 [dismissing charge against union that removed its elected president but issued no fine or membership suspension].)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.04000 – Union Rules and Discipline in General; Union Dues and Fees; Fines, Assessments, Etc.

The Board found no factual allegations suggesting that parent labor organization failed to establish or follow reasonable procedures in conducting investigation of local union schism. In this inquiry, PERB’s touchstone is fairness. (California Association of Professional Scientists (Rachlis) (2015) PERB Decision No. 2417-S, p. 10.) In order for internal union procedures to be fair, an accused union member must receive notice of alleged wrongdoing and “rudimentary rights of defense” that provide “substantial justice,” but “the refined and technical practices which have developed in the courts cannot be imposed upon the deliberations of workingmen and the form of the procedure is ordinarily immaterial if the accused is accorded a fair trial.” (Ibid., internal quotations and citations omitted.) Indeed, even when a union unreasonably applies or departs from its own rules, a charging party must show how the alleged unfairness impacted the outcome. (Id. at p. 11.) Technical or minor imperfections are not sufficient to show that a union denied a charging party substantial justice. (Id. at pp. 11-14.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.05500 – Discrimination

In evaluating a discrimination or retaliation claim, PERB generally applies the same test irrespective of whether the respondent is an employer or a union. In order to establish a prima facie case of retaliation, a charging party must allege facts showing that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes these factors, certain fact patterns nonetheless allow a respondent to prove, by a preponderance of the evidence, that it would have taken the same action even absent the protected activity. (Id. at pp. 15-16.) Additionally, in an unfair practice charge alleging that a union discriminated or retaliated against protected activity, the charging party must allege facts showing that the union’s conduct impacted the employer-employee relationship. (California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S, pp. 27-28; California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S, pp. 13-17, citing Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.05500 – Discrimination

It is well-established that initiating an investigation of alleged misconduct is an adverse action. (Service Employees International Union, Local 221 (Gutierrez) (2012) PERB Decision No. 2277-M, p. 9; California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S, p. 12.) However, a union’s decision to investigate an internal discrimination complaint does not normally impact a bargaining unit employee’s relationship with his or her employer. This was an unusual case in which an internal union action initially appeared not to impact any employer-employee but ultimately appeared to do so when the union’s internal investigation report later provided the basis for the District’s written reprimand.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.08000 – Other

In determining that charging parties did not state a prima facie case of interference, Board noted union officials lacking control over the employment relationship do not have the same capacity as an employer’s agent to discourage protected activity. (Oxnard Federation of Teachers (Collins) (2012) PERB Decision No. 2266, adopting warning letter at p. 6; California Faculty Association (Hale) (1988) PERB Decision No. 693-H, adopting warning letter at p. 5; see also City of Oakland (2014) PERB Decision No. 2387-M, p. 25, fn. 5; (Hartnell Community College District (2015) PERB Decision No. 2452, p. 25.)

805.00000 – UNION UNFAIR PRACTICES; CAUSING EMPLOYER TO VIOLATE ACT
805.01000 – In General

The Board noted, but did not resolve, split of authority as to whether an employee may bring a charge that a union violated EERA section 3543.6, subdivision (a) by causing or attempting to cause the employer to violate EERA. There is split authority as to whether an employee may bring such a charge or only an employer may do so. (See Santa Maria Joint Union High School District Faculty Association (2015) PERB Decision No. 2445, p. 18, fn. 19.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

On appeal from dismissal of an amended charge, the Board assumes that a charging party’s factual allegations are true, and views them in the light most favorable to the charging party. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on a respondent’s responses if they explicitly or implicitly create a factual conflict with a charging party’s factual allegations, even if the respondent’s contrary responses are stated more persuasively or appear as though they may be backed up by more supporting evidence, when compared to the charging party’s allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 13.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

At the pleading stage, PERB will not penalize a charging party for failing to assert a theory that may fit the allegations, and instead the Office of General Counsel must issue a complaint based on any and all legal theories for which the alleged facts state a prima facie case. (Hartnell Community College District (2015) PERB Decision No. 2452, p. 51, fn. 20.) Accordingly, the Board assessed potential theories that charging parties did not assert but determined the facts did not state any cognizable claims.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.02000 – Amended Charge or Complaint; Withdrawal of Charge; Relation Back Doctrine

When a charging party amends an unfair practice charge and thereby adds new allegations, the statute of limitations for the newly-added allegations is generally the six months prior to the date the charging party filed the amended charge, unless the new allegations relate back to the allegations in the initial charge, or another recognized exception applies. (County of Santa Barbara (2012) PERB Decision No. 2279-M, p. 10.) Newly-added factual allegations in an amended charge relate back to those in the initial charge if they clarify or provide further detail regarding the facts initially alleged or assert facts that are a logical and sequential manifestation of the same course of conduct initially alleged. (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, pp. 37-39.) The relation back doctrine also allows a charging party to add new legal theories, provided that such new theories rely on allegations included in the initial charge and/or allegations that satisfy the relation back standard. (Id. at pp. 37-38.) The Board found several of the new allegations in the amended charge related back to allegations in the initial charge because they were a logical and sequential manifestation of the same course of conduct alleged in the initial charge, but other new allegations were untimely because they did not relate back to the initial charge.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

In resolving a dismissal appeal, the Board reviews OGC’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore).) At this stage of the case, a charging party’s burden “is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) Furthermore, “where a material factual dispute turns on the respondent’s state of mind,” the Board considers that motive is generally within the respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. The Board therefore imposes on a charging party a relatively low burden to allege facts tending to show the requisite state of mind. (Ibid.) Mere legal conclusions, however, are insufficient to state a prima facie case. (Lake Elsinore, supra, PERB Decision No. 2548, p. 18.) Moreover, although the Board does not resolve conflicting factual allegations, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 9.)

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.02000 – Statute of Limitations

When a charging party amends an unfair practice charge and thereby adds new allegations, the statute of limitations for the newly-added allegations is generally the six months prior to the date the charging party filed the amended charge, unless the new allegations relate back to the allegations in the initial charge, or another recognized exception applies. (County of Santa Barbara (2012) PERB Decision No. 2279-M, p. 10.) Newly-added factual allegations in an amended charge relate back to those in the initial charge if they clarify or provide further detail regarding the facts initially alleged or assert facts that are a logical and sequential manifestation of the same course of conduct initially alleged. (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, pp. 37-39.) The relation back doctrine also allows a charging party to add new legal theories, provided that such new theories rely on allegations included in the initial charge and/or allegations that satisfy the relation back standard. (Id. at pp. 37-38.) The Board found several of the new allegations in the amended charge related back to allegations in the initial charge because they were a logical and sequential manifestation of the same course of conduct alleged in the initial charge, but other new allegations were untimely because they did not relate back to the initial charge.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

A union, like an employer, is liable for the acts of those bearing either actual or apparent authority to act on its behalf. (National Union of Healthcare Workers (2012) PERB Decision No. 2249-M, p. 14.) Actual authority is that which an organization intentionally confers upon the agent, or intentionally or negligently allows the agent to believe himself or herself to possess. (Chula Vista Elementary School District (2004) PERB Decision No. 1647, p. 7.) Apparent authority may be found from manifestations by the principal that create a reasonable basis for others to believe that the principal has authorized the alleged agent to perform the act in question. (Ibid.) In general, a respondent' s high-ranking officials, particularly those whose duties include employee or labor relations matters, are presumed to act and speak on behalf of the respondent, meaning that the respondent is generally liable for their conduct. (City of San Diego (2015) PERB Decision No. 2464-M, p. 23.) However, there is no blanket rule that an elected union representative always acts as the union’s agent. (Morgan Hill Unified School District (1986) PERB Decision No. 554a, p. 7.)

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

Union officials or candidates may take a variety of actions that are not necessarily imputed to the union. In a dispute between two sharply divided union executive board factions, certain acts may arguably have been motivated by the other faction’s protected activity, but none were official acts of the Union that could give rise to a charge against the organization.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

Rank-and-file bargaining unit members are not agents of a union. (San Bernardino Public Employees Association (White, et al.) (2018) PERB Decision No. 2572-M, partially adopting proposed decision at p. 28; Los Angeles Community College District (1982) PERB Decision No. 252, p. 17.)