Decision 2795E – * * * JUDICIAL APPEAL PENDING * * * Alliance Marc & Eva Stern Math & Science High School et al.

PERB lacks authority to rule on constitutional issues because the California Constitution prohibits an administrative agency from declaring a statute unconstitutional, and from refusing to enforce a statute on constitutional grounds unless an appellate court has ruled the statute is unconstitutional. (p. 42.)

PEDD bars all employer communications and conduct tending to influence certain employee decisions—including the decision whether to unionize—unless the employer narrowly tailors its conduct to a business necessity while minimizing the tendency to influence employee free choice as much as possible. The protection is more robust than the pre-existing protection against employer interference, as it prohibits most employer influence even if the employer refrains from threatening reprisals or force, or from promising a benefit. (p. 53.)

Rather than leaving it to anti-union employees to campaign against unionization as PEDD contemplates, the charter schools repeatedly and broadly circulated their own arguments against unionization. Thus, the Board found that based on both content and context, the e-mails tended to influence whether or not employees supported the union, thereby establishing a prima face case. (p. 69.)

The content of e-mails sent to charter school employees by agents of their employer sowed fear and distrust of unionization, the collective bargaining process, and of a specific union. For example, several of the communications conveyed that the union is “vehemently anti-charter” and spends member dues to support political campaigns directed at closing charter schools. (p. 54.) The e-mails also repeatedly sent the message that union organizers will violate employees’ privacy and will deceive and coerce employees. (p. 55.) Some e-mails conveyed opinions that the union and other unions only serve the interests of lazy employees and “disgruntled” employees with “negative” attitudes. (p. 57.) A couple of e-mails attacked the union for allegedly attempting to block employees from discussing or debating unionization, as well as for allegedly excluding teachers from union discussions. (p. 58.) Some e-mails raised fears that the union would require employees to accept onerous or undesirable provisions of the union’s collective bargaining agreement with another school district. (p. 59.) Several e-mails conveyed that unionization causes strife among co-workers, which would cause administrators and other teachers to resign. (p. 60.) Some e-mails expressed that unionization would hurt the quality of education, causing parents to withdraw their students from the charter schools and imperiling the schools’ future. (p. 61.) On their face, these e-mails conveyed that unionization, especially with a specific union, will lead only to potential negative consequences, such as unwanted terms and conditions of employment being forced upon employees by the union, increased strife among employees, lower quality of education for students, resignation of administrators and teachers, and even school closures. (p. 62.) The Board found that the content of the e-mails tended in several ways to influence employees’ choice whether or not to authorize representation by a union.

E-mails sent to charter school employees by agents of their employer indicated that dues would be forced on employees and suggested they would receive little in return. (p. 63.) The e-mails also tended to influence employee choice by suggesting that employees’ wages and working conditions could be worse under union representation. The e-mails suggested that unionization would not lead to increased wages or better working conditions, and that existing employer policies provide sufficient protections for employees. (p. 65.) The Board found that the e-mails tended to influence employee choice by attaching a financial disincentive to union support by repeatedly stressing the dues obligations employees would incur if they exercised their right to join a union, which connected their choice to refrain from joining a union with a larger paycheck.

Viewed as a whole, e-mails sent to charter school employees by agents of their employer tended to influence employee choice about whether or not to authorize representation by the union by strongly suggesting that unionization, especially with the particular union, would harm employees’ paychecks, their employment, the students, and the continuation of their charter school. The Board had no difficulty concluding that a prima facie violation of PEDD section 3550 has been established based solely on the text of the e-mails. (p. 66.)

The charter management organization sent e-mails to charter school employees between March 22 and May 1. The union filed representation petitions for three charter schools on May 2. The charter schools’ principals or assistant principals sent e-mails to charter school employees between April 27 and May 14. The e-mails thus were sent at a time when the union’s organizing efforts were beginning to produce results, at least at three charter schools. (pp. 66-67.) The Board found that the timing of the e-mails would tend to influence employee free choice about supporting the union.

The sudden participation of principals and assistant principals of the charter schools in the conversation about unionization would tend to influence employee choice. Principals and assistant principals had remained silent during the prior three years of the union’s organizing campaign. Then, just as the campaign was beginning to bear fruit, the principals and assistant principals abruptly decided to e-mail employees regarding unionization and the union. Two of the later e-mails even referenced conditions after the filing of the representation petitions on May 2. (p. 67.) The Board found that receiving such an e-mail from their principal or assistant principal about the union’s organizing campaign, particularly on the heels of four e-mails from the charter management organization about the same subject, would cause a reasonable employee to believe the message was particularly urgent and important. (p. 68.) The Board found this to be another contextual factor that strengthened the e-mails’ tendency to influence employee choice.

The principals’ and assistant principals’ e-mails contained many similarities in theme and some also contained the exact same language. As two of the e-mails themselves indicated, these similarities caused employees to question whether the e-mails were drafted by the charter management organization or were sent as part of an anti-union campaign. (p. 68.) The Board found this to be another contextual factor that strengthened the e-mails’ tendency to influence employee choice.

Although the content of the e-mails themselves tended to influence employee choice, the Board found that tendency was strengthened by the context in which the e-mails were sent: shortly before and after representation petitions were filed, by high-ranking administrators who had never spoken about the organizing campaign before but then did so in the midst of, or shortly after, a series of similar e-mails from the charter management organization, and using related themes and sometimes identical language. (p. 69.)

When the employer asserts a business necessity defense, PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. The stronger the likelihood to influence employee free choice, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its conduct or communication to attain that purpose while limiting influence on employee free choice to the extent possible. If the likelihood of influence outweighs the asserted business necessity, PERB will find a violation. Absent evidence sufficient to establish an affirmative defense, section 3550 leaves it to employees on each side of a unionization debate to marshal their arguments. Thus, in the critical debate over whether charter schools’ employees should authorize the union to become their exclusive representative, including but not limited to the question whether the union’s stance on charter schools makes it a poor fit for representing employees, the Board must consider whether the charter schools have established a business necessity showing that they cannot leave it to employees to be the ones to argue against unionization. (pp. 70-71.)

As for the defense that the charter management organization was responding to employees’ complaints about the union’s aggressive organizing campaign, the charter schools provided scant evidence that employees complained to school management about the union’s organizing tactics. The only such evidence is a statement in the charter management organization’s March 22 e-mail that it had “received complaints from many of you” about the union’s visits to employee’s homes, and statements by a principal that some employees lodged complaints about the union’s “bullying during organizing.” These hearsay reports of complaints being made to management are insufficient to support a finding that such complaints were made. Even if there were actual complaints, the vague descriptions of the complaints in these two e-mails provide insufficient foundation or detail to assess what steps such complaints could have necessitated. The Board found that the charter schools did not establish that their e-mails were narrowly tailored to address the purported employee complaints, especially considering that, in addition to informing employees of their rights regarding union solicitation, the e-mails expressed the charter schools’ opinion that the union’s solicitation conduct was coercive and deceitful. (pp. 71-72.)

As for the defense that the charter management organization was countering the union’s untruthful communications to employees, the charter schools provided scant evidence to support this defense. An employer’s communication may be justified by the need to accurately counter a union’s misleading communication. But none of the union’s communications to the charter schools’ employees are in the record. The Board could not determine whether those communications were misleading or whether the charter schools’ e-mails were necessary to provide accurate information to employees. The Board found that the charter schools’ failure to call even a single witness makes it all but impossible to conclude that its e-mails were in furtherance of, and narrowly tailored to, one or more business necessities. (p. 72.)

The charter schools claimed that the e-mails were necessary to “defend the existence of a legally-constituted charter school” by addressing “the potentially destabilizing influence of [the union]’s attacks” on charter schools. But the e-mails’ timing and content show the charter schools did not narrowly tailor the communications to protect their business from anti-charter political campaigns while influencing employee free choice as little as possible. The union’s purported long history of anti-charter conduct would have posed a potential threat to the charter schools well before the union began organizing the charter school employees. Yet the charter schools did not begin communicating with employees about this alleged threat until after the union began its organizing campaign. The timing of these communications suggests it was the union’s organizing campaign, not its alleged hostility to charter schools, that prompted the charter schools to send the e-mails at issue. (pp. 71-72.)

The content of the e-mails was not narrowly tailored to protect the charter schools’ charters. Rather than discussing only the union’s alleged support for anti-charter legislation and candidates, the e-mails also discussed at length subjects unrelated to the schools’ charters, such as potential impacts of unionization on wages, benefits, and working conditions, as well as administrators’ own personal experience with unions in other school districts. Thus, the Board found that the charter schools’ purported business necessity would not justify most of the statements in the e-mails sent to the charter school employees. (pp. 72-73.)

The Board found that earlier unfair practices by other charter schools affiliated with the charter management organization, which were committed in response to the union’s organizing efforts, including interfering with protected rights by calling law enforcement to stop union handbilling and by directing an employee and a union organizer to leave school premises, interfering with the union’s rights by failing to respond to its request to meet and discuss a fair and neutral organizing process, and denying union organizers access to a school campus and threatening a teacher because of her protected activity on behalf of the union, further undercut the charter schools’ affirmative defense. While the Board would still reach the same outcome if these unfair practices had not occurred, they are additional relevant evidence regarding motive, further suggesting that the charter schools sent the e-mails not because of any legitimate business necessity but as part of their ongoing efforts to squelch the union’s organizing campaign. (pp. 73-74.)

Agency may be established by showing: (1) the purported agent had actual authority to act on behalf of the employer; (2) the purported agent had apparent authority to act on behalf of the employer; or (3) the employer ratified the purported agent’s conduct. (pp. 43-44.)

Agency may be established by showing: (1) the purported agent had actual authority to act on behalf of the employer; (2) the purported agent had apparent authority to act on behalf of the employer; or (3) the employer ratified the purported agent’s conduct. (pp. 43-44.)

Actual agency exists when the agent is really employed by the principal. Actual authority is that authority which a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess. An agent’s authority includes the degree of discretion necessary for the agent to carry out the purposes of the agency in accordance with the interests of the principal. Because an actual agent is employed by the principal, the primary inquiry in assessing actual authority is whether the agent was acting within the scope of his or her authority. (p. 45.)

School principals and assistant principals were actual agents of the school district that employs them when they acted within the scope of their employment by communicating with certificated employees at their respective schools about the union’s organizing campaign. (pp. 45-46.)

The agreements between the charter school management organization and each of the charter schools expressly state the charter school management organization will provide each charter school with human resources and employee relations services. Also, the charter renewal petitions submitted by each charter school to the school district’s board state that the charter school management organization provides oversight and monitors the charter schools’ board of directors adherence to EERA, and charter school management organization’s director of human resources must have advanced education or technical experience in labor relations. The Board found that these facts establish the charter school management organization acted as the charter schools’ actual agent regarding labor relations and human resources matters. Thus, sending e-mails to certificated employees about a union’s organizing campaign was within the scope of the charter school management organization’s actual authority under the agreements. (p. 47.)

Apparent authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess. PERB and the courts have held that apparent authority to act on behalf of the employer may be found where the manifestations of the employer create a reasonable basis for employees to believe that the employer has authorized the alleged agent to perform the act in question. (p. 47.)

The test for apparent authority is an objective inquiry and is best framed as whether under the circumstances a reasonable employee would believe the alleged agent was reflecting company policy and speaking and acting for management. The Board found that the charter schools’ principals and assistant principals acted as agents of their respective schools when they sent e-mails to certificated employees at their schools. Principals and assistant principals are the highest-ranking administrators at a school site, and they directly supervise certificated staff at their respective schools. The e-mails were sent via each school’s e-mail system by a principal or assistant principal and discussed ongoing labor issues at the school related to the union’s organizing campaign. Under these circumstances, a reasonable employee would perceive that the e-mails represented the official view of the school. Thus, in using work e-mail addresses to communicate with their subordinates about a labor matter, the principals and assistant principals had both actual and apparent authority to act in an employer capacity. (pp. 48-50.)

The Board found agency by ratification when a charter school management organization sent four e-mails about a union’s organizing campaign to an all staff e-mail group at individual charter schools, and the schools’ administrators’ had constructive knowledge of the e-mails and failed to disavow them. (p. 51.)