Decision 2797E – Carpinteria Unified School District
LA-CE-6522-E
Decision Date: November 16, 2021
Decision Type: PERB Decision
Description: The Carpinteria Unified School District filed exceptions to a PERB ALJ’s determination that it retaliated against Carpinteria Association of United School Employees, Local 2216 (CAUSE or Union) President Jay Hotchner because of his protected activities, and thereby denied CAUSE its right to represent its members, in violation of Educational Employment Relations Act (EERA) section 3543.5, subdivisions (a) and (b). Central to the dispute were two Notices of Unprofessional Conduct the District issued to Hotchner. The first Notice included three incidents the District described as unprofessional conduct: Hotchner’s classroom knock-knock joke, his conduct at and surrounding layoff “bumping” meetings, and his interaction with the District’s HR director related to an employee’s personnel file review. The second Notice was for voicemail messages Hotchner left on a parent’s phone.
The Board affirmed the ALJ’s finding that a majority of the conduct underlying the Notices was related to labor and employment disputes, and not so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to substantially disrupt or materially interfere with employer operations, and thus lose protection. (Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13 (Rancho Santiago).) The Board affirmed that these protected activities were the but-for cause of the Notices, and not outweighed by the District’s affirmative defense that it would have issued both the Notices absent Hotchner’s protected activity based on his alleged misconduct. The Board also upheld the ALJ’s subpoena rulings and his remedial order.
Disposition: The Board affirmed the proposed decision, finding that the District retaliated against Hotchner and denied CAUSE its right to represent its members.
Perc Vol: 46
Perc Index: 86
Decision Headnotes
300.15000 – Speech
EERA generally protects union and employee speech related to legitimate labor and employment concerns. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15.) For instance, an employee is typically protected in criticizing management, working conditions, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Because labor and employment disputes tend to engender ill feelings and strong responses, the parties are afforded wide latitude to engage in “uninhibited robust, and wide-open debate” during those disputes. (City of Oakland (2014) PERB Decision No. 2387-M, p. 23.) Public employees’ right to engage in concerted activities therefore permits them some leeway for “impulsive” and “intemperate” behavior, including moments of “animal exuberance.” (Ibid.)
300.15000 – Speech
Employee conduct and speech related to a labor and employment dispute is protected unless it is so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to substantially disrupt or materially interfere with employer operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13 (Rancho Santiago).) The Rancho Santiago standard encompasses two different tests. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 19, fn. 9.) The first test, which applies when an employer or union claims that an employee has leveled a false criticism, is largely content-based: the speech only loses protection if it was maliciously false. (Ibid.) The second test is conduct-based and analyzes whether the employee engaged in face-to-face communications with a manager or supervisor in a manner that substantially disrupts operations. (Ibid.) This fact-intensive inquiry generally considers, at least: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was in any way provoked by the employer’s unfair labor practice. (Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 11.)
300.15000 – Speech
Conduct included in a disciplinary notice was protected by EERA because Union president was acting in his capacity as Union president in representing bargaining unit members in their relations with the District. The District failed to meet its burden of showing any behavior that was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference [in the workplace]” as to lose statutory protection. (See Pomona Unified School District (2000) PERB Decision No. 1375, p. 16 [finding a letter that used “forceful but not abusive” language to describe the author’s displeasure with how school administration had represented her employment status to third parties retained its statutory protection because it was the type of conduct “that labor relations personnel are likely to encounter at least occasionally in the routine course of business”].)
504.05000 – Union Activity of Discriminatee
“Where the employer’s words or actions reveal that the adverse action was taken in response to the employee’s protected activity, such conduct serves as direct evidence of unlawful motive.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 26.) The Board found direct evidence of unlawful motive because the disciplinary notices were explicitly based in part on protected activity.
505.01000 – In General
In “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 40-41.) To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 33 (Palo Verde).) As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (See Novato Unified School District (1982) PERB Decision No. 210, p. 14 [“[a]fter all the evidence is in, it is a question of the sufficiency of the proof proffered by the various parties”].)
1105.15000 – Privileged Communications
To the extent the requested records include notes covering internal union meetings or caucuses in which no District representatives were present, they are subject to a qualified protection. In Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113 (Colton), PERB found that a bargaining party generally need not disclose its internal strategy discussions regarding negotiations or grievance handling. (Id. at p. 6, citing Berbiglia, Inc. (1977) 233 NLRB 1476, 1495; see also County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9; Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 4.) Pursuant to this qualified protection, we balance the negotiating party’s interest in maintaining confidentiality versus the competing interests in disclosure, if any. (Colton, supra, PERB Order No. Ad-113, p. 8.) CAUSE’s internal notes from bargaining sessions fall under this protection, particularly as the District’s tenuous arguments for relevance weigh against disclosure.
1106.01000 – In General
A subpoena that merely asks for all documents relevant to a claim or defense is overbroad and must be modified.