Decision 2806E – * * * JUDICIAL APPEAL PENDING * * * Visalia Unified School District

The Board rejected the District’s argument that the ALJ erred by relying on evidence of motive from outside the six-month statute of limitations. A statute of limitations applies to allegedly wrongful acts, not to evidence regarding motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17; City of Oakland (2014) PERB Decision No. 2387-M, pp. 34-35; see also County of Ventura (2021) PERB Decision No. 2758-M, p. 35 [applying analogous rule to allow evidence of bad faith conduct from prior to limitations period].) (p. 17.)

The Board rejected the District’s argument that the ALJ erred by relying on evidence of motive from outside the six-month statute of limitations. A statute of limitations applies to allegedly wrongful acts, not to evidence regarding motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17; City of Oakland (2014) PERB Decision No. 2387-M, pp. 34-35; see also County of Ventura (2021) PERB Decision No. 2758-M, p. 35 [applying analogous rule to allow evidence of bad faith conduct from prior to limitations period].) (p. 17.)

Serving as a union officer is protected activity. The Board overruled Trustees of the California State University (2009) PERB Decision No. 2038-H and similar decisions to the extent they held that an employee must allege “something more” than holding union office to show that he or she has engaged in protected activity under any PERB-administered statute. (pp. 18-21.)

Because MMBA section 3502.1 merely reinforces existing statutory provisions and given that EERA and the MMBA mirror one another in their main provisions protecting the right to participate in union activities, the Board found that the Legislature did not intend to prescribe differing rules and instead intended unfair practices under the differing statutes to be interpreted in a comparable manner. While including statutory language in only one of several laws dealing with the same general subject can demonstrate an intent to create differing rules, that principle does not apply universally and is not helpful or controlling where, as here, it would create an “inexplicable anomaly.” (p. 20.)

The Board found temporal proximity between employee’s critiques of senior District leaders at a January 9, 2018, Board of Education meeting and the District’s issuance of a January 22, 2018, Notice of Paid Administrative leave. Where the record offered no clear conclusions as to when the District received a parent complaint implicating employee’s data entry error and when the District began to research employee’s possible additional errors, the Board found that the ALJ’s conclusion was the correct one, i.e., that the District more likely than not decided to investigate employee after she spoke at the Board of Education meeting. (pp. 23-24.)

Where an employer likely would not have undertaken an investigation (here, the District’s full-scale audit) absent protected activity, it is generally precluded from relying on information it would not have otherwise uncovered. (p. 24.)

The District exaggerated justifications for employee’s termination by inflating the financial impact of employee’s errors. The District also alleged the errors were the result of falsification and insubordination, both of which require a showing of intent, without providing any proof of such intent. (pp. 24-30.)

The District’s exaggerated justifications for employee’s termination also reflected a rushed or otherwise inadequate investigation, which is further evidence of improper motive. (pp. 26-27, 35.)

The District’s failure to seriously explore any intermediate discipline for employee who engaged in protected activities, consistent with its standard approach to correcting performance deficiencies, was significant evidence of improper motive. (pp. 31-32)

Evidence showed that District treated employee who engaged in protected activities disparately from other employees. First, the District had not terminated any other employee for unintentionally misreporting attendance. And, prior to its investigation of employee, the District had never performed a full-scale audit looking at every data entry in computer program to determine whether an attendance clerk had made incorrect entries. Such disparate treatment indicated unlawful motive. (pp. 31-32.)

Principal’s comment to employee who was nominated for union vice president supported an inference of animus. When employee told the principal about her nomination, the principal asked employee not to accept it. Whether the principal expressly or impliedly asked employee not to accept the nomination, in either instance her conduct exhibited hostility towards employee’s union activity. (pp. 34-35.)

The Board found that the District’s Notice of Paid Administrative Leave indicated animus toward employee/union president’s protected activity. The Notice barred employee from entering District property, where it knew the union held its meetings, and from contacting District employees about the investigation, which would undermine employee’s ability to prepare for her investigatory interview and mount her own defense. Despite being advised of these problems, the District did not immediately modify the prohibitions and instead kept them in place for almost six weeks. (p. 35.)

The Board declined to order backpay to begin on the date the District placed affected employee on paid administrative leave, rather than on the date the Board of Education upheld employee’s termination. This was because the complaint alleged only that the District took adverse action against employee by upholding her termination from employment. While the Board found the District was unlawfully motivated in placing employee on administrative leave, the union failed to raise, much less brief, whether this met the requirements of the unalleged violation doctrine, and the Board declined to consider the doctrine sua sponte. However, nothing in the decision altered the general rule that all categories of losses (including, but not limited to, overtime pay, shift differentials, and holiday pay) are fully compensable based on reasonable estimates. In cases in which PERB either sustains a complaint allegation challenging imposition of paid leave or finds such a violation based on the unalleged violation doctrine, all losses are compensable during the unlawful paid leave. In this case, however, such categories are compensable only after the date of termination. (pp. 39-40 & fn. 14.)

The Board declined to order backpay to begin on the date the District placed affected employee on paid administrative leave, rather than on the date the Board of Education upheld employee’s termination. This was because the complaint alleged only that the District took adverse action against employee by upholding her termination from employment. While the Board found the District was unlawfully motivated in placing employee on administrative leave, the union failed to raise, much less brief, whether this met the requirements of the unalleged violation doctrine, and the Board declined to consider the doctrine sua sponte. (p. 40.)