Decision 2804E – South Orange County Community College District

Charging Party alleges she was prevented from returning to campus for union meetings after she was issued a Notice of Intent to Discipline and escorted off campus. The Board held this argument failed for two reasons. First, a directive for an employee not to communicate with her union while on suspension would unlawfully interfere with the employee’s EERA-protected rights. But the amended charge did not allege, nor did the filings contain, the terms of Charging Party’s suspension, so there were no alleged facts showing such a prohibition. Second, even if Charging Party could not attend union meetings on campus, the amended charge did not allege facts showing the school district prevented Charging Party from communicating with union representatives by other means, such as telephone, e-mail, or meeting off-campus. And to the extent Charging Party claimed her suspension precluded her from addressing the school district board of trustees about a proposed contractual equity clause, the amended charge alleged no facts showing that the terms of her suspension barred her from attending and participating in what presumably was a meeting open to the public. For these reasons, the Board affirmed the Office of the General Counsel’s dismissal of the interference allegation based on Charging Party’s suspension. (p. 18.)

To establish a prima facie case of retaliation sufficient to support issuance of a complaint, 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 of the 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. (p. 9.)

Charging Party’s supervisor knew that she used union release time and requested leave to attend the union’s annual conference. Charging Party’s supervisor also complained about Charging Party’s attendance at union meetings. The acting vice chancellor of human resources knew of Charging Party’s request for leave to attend the union’s annual conference and of Charging Party’s concerns about the proposed contractual equity clause. The Board inferred that the acting vice chancellor of human resources was aware of Charging Party’s information request and concerns over leave, and her concerns over the hourly rate calculation. The acting vice chancellor of human resources issued the Notice of Intent to Discipline informing Charging Party of the charges against her and the school district’s intent to terminate her employment. The Board held that the amended charge thus sufficiently alleged that at least one person involved in Charging Party’s termination knew of her protected activities. (p. 11.)

The Board held that the amended charge sufficiently alleged that Charging Party participated in EERA-protected activity. Specifically, at the time of her termination, Charging Party was the union chapter vice president and a member of the union’s negotiating team. Charging Party also engaged in EERA-protected activity when she: (1) requested information from the school district about a new salary schedule containing a lower hourly rate, and raised concerns about family care leave and other leaves; (2) requested contractual leave to attend the union annual conference; (3) raised issues about the hourly rate calculation with the school district; and (4) raised concerns with the school district over a proposed equity clause in the union contract. (p. 10.)

The Board held that the Office of the General Counsel correctly found that the school district’s termination of Charging Party’s employment constituted an adverse action. (p. 11.)

The Office of the General Counsel found that neither the allegation that Charging Party did not receive progressive discipline nor the allegation that acting vice chancellor of human resources lied about the policy allowing the school district to place Charging Party on unpaid administrative leave pending her due process hearing showed a departure from established procedures. Given the lack of allegations in the amended charge as to the school district’s existing disciplinary or administrative leave procedures, the Board agreed that Charging Party failed to allege a departure from established procedures. (p. 13.)

Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. (p. 12.)

The allegations in the amended charge establish sufficiently close timing to support an inference of unlawful motivation for Charging Party’s termination. At the time the school district decided to terminate Charging Party, she was serving as the union chapter vice president and a member of the union’s bargaining team. The initial Notice of Intent to Discipline informing Charging Party of the school district’s intent to terminate her employment was served approximately one month after Charging Party raised issues about a proposed contractual equity clause. Additionally, in the six months preceding the Notice, Charging Party had requested information from the school district about a new salary schedule containing a lower hourly rate, raised concerns about family care leave and other leaves and about the hourly rate calculation, and requested contractual the union release time to attend the union annual conference. (pp. 12-13.)

The Board found that the amended charge alleged facts showing the school district had animosity toward Charging Party’s EERA-protected activities. Charging Party’s supervisor denied her request for leave to attend the union’s annual conference. Several weeks later, Charging Party’s supervisor complained to the school district about the number of union meetings Charging Party attended. (p. 16.)

The Board found that the allegations in the amended charge established both the inadequate investigation and disproportionate punishment nexus factors. The school district’s one-sided investigation of Charging Party’s alleged time theft consisted of comparing Charging Party’s texts saying she would be late or absent with her entries in the school district’s timekeeping system. Based on this investigation, the school district proposed to terminate Charging Party for 36 alleged instances of time theft. The school district never interviewed Charging Party about any of these instances; she first became aware of the allegations when she was served with the Notice of Intent to Discipline. Then, based on Charging Party’s presentation at her Skelly hearing, the Skelly officer found 25 of the 36 alleged instances were unfounded. The Board found that this suggests that if the school district adequately investigated to learn the true facts, including interviewing Charging Party, it would have discovered it had no basis for 25 of the charges. The Board found that the school district’s failure to undertake this additional investigation supports an inference that it was not interested in obtaining evidence that might conflict with its desired result. (pp. 14-15.)

The Board noted that despite the Skelly officer dismissing two-thirds of the charges against Charging Party, the school district did not reduce the proposed discipline but instead proceeded to terminate Charging Party based on the remaining 11 charges. Although we cannot say based upon the allegations in the amended charge that termination was a disproportionate punishment for the remaining 11 charges, the school district’s persistence in terminating Charging Party’s employment despite the weakness of a large portion of its charges suggests that termination was a predetermined outcome to rid the school district of a known union activist. The Board found that this was another instance of inadequate investigation and disproportionate punishment nexus factors. (p. 16.)

The Board found that the amended charge alleged facts showing the school district had animosity toward Charging Party’s EERA-protected activities. The day before the meeting at which the school district served Charging Party with the Notice of Intent to Discipline, Charging Party’s supervisor told Charging Party the meeting was about her unauthorized union release time. These statements show that Charging Party’s supervisor disapproved of Charging Party’s union activities, thus supporting an inference that her animus toward those activities played a role in Charging Party’s termination. (p. 17.)

The Board held that the allegation that Charging Party did not receive progressive discipline before being terminated implicates the disproportionate punishment nexus factor. In considering whether the punishment appears disproportionate to the alleged misconduct, PERB does not determine whether the employer had just cause to impose the particular punishment. Rather, the inquiry is whether the employer’s choice to impose the particular punishment instead of a lesser punishment indicates a retaliatory motive. Thus, in certain contexts, an employer’s decision to terminate an employee rather than pursue progressive discipline may indicate the employer wished to rid itself of a known union supporter. In such cases, the decision to terminate often is intertwined with an inadequate investigation of the employee’s alleged misconduct. (p. 14.)

The Board noted that despite the Skelly officer dismissing two-thirds of the charges against Charging Party, the school district did not reduce the proposed discipline but instead proceeded to terminate Charging Party based on the remaining 11 charges. Although we cannot say based upon the allegations in the amended charge that termination was a disproportionate punishment for the remaining 11 charges, the school district’s persistence in terminating Charging Party’s employment despite the weakness of a large portion of its charges suggests that termination was a predetermined outcome to rid the school district of a known union activist. The Board found that this was another instance of inadequate investigation and disproportionate punishment nexus factors. (p. 16.)

The Board reviews the Office of the General Counsel’s (OGC) dismissal of a charge de novo, applying the same legal standard OGC applied to the allegations in the charge. At this stage of litigation, “the 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.” The Board thus assumes the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. Thus, at this stage of the case the Board generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. Rather, if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. Where a material factual dispute turns on the respondent’s state of mind, the Board takes into account that motive is generally within the respondent’s own knowledge and that there is little opportunity for pre-hearing discovery, and the Board accordingly imposes on the charging party a relatively low burden to allege facts tending to show the requisite state of mind. (p. 9.)

Charging Party did not appeal Office of the General Counsel’s (OGC) dismissal of the alleged Ralph M. Brown Act violation for lack of jurisdiction, nor the dismissal of the allegations that the school district retaliated against Charging Party by placing her on administrative leave, issuing her a Notice of Intent to Discipline, and placing her on an unpaid suspension, all of which OGC found to be untimely. Accordingly, those allegations were not before the Board on appeal. (p. 2, fn. 2.)

Because the amended charge alleged facts establishing three recognized nexus factors, the Board reversed the dismissal of the allegation that the school district terminated Charging Party’s employment because of her EERA-protected activity and remanded the matter to OGC for issuance of a complaint on that allegation. Although the Board found the charge allegations established three particular nexus factors, Charging Party remained free to introduce all relevant and admissible evidence of nexus at the formal hearing. (p. 17, fn. 7.)