Decision 2822E – Victor Valley Union High School District

To avoid acting in excess of its authority, PERB has an obligation to determine whether it has jurisdiction over a dispute, regardless of whether the parties themselves have raised the issue. The Legislature has granted and the courts have consistently upheld PERB’s primary and exclusive jurisdiction over alleged unfair practices. PERB rejected the argument that because the Education Code grants the Office of Administrative Hearings jurisdiction over teacher dismissal proceedings, including pre-hearing discovery, it deprives PERB of jurisdiction over the inquiry into whether the District’s questioning of a union president during a deposition interfered with EERA-protected rights. The allegations in the complaint that the District interfered with employee and union rights under EERA by extensively questioning the union president regarding protected communications with a bargaining unit member, other unit members, and a California Teachers Association staff member, are squarely within PERB’s jurisdiction.

To avoid acting in excess of its authority, PERB has an obligation to determine whether it has jurisdiction over a dispute, regardless of whether the parties themselves have raised the issue. The Legislature has granted and the courts have consistently upheld PERB’s primary and exclusive jurisdiction over alleged unfair practices. PERB rejected the argument that because the Education Code grants the Office of Administrative Hearings jurisdiction over teacher dismissal proceedings, including pre-hearing discovery, it deprives PERB of jurisdiction over the inquiry into whether the District’s questioning of a union president during a deposition interfered with EERA-protected rights. The allegations in the complaint that the District interfered with employee and union rights under EERA by extensively questioning the union president regarding protected communications with a bargaining unit member, other unit members, and a California Teachers Association staff member, are squarely within PERB’s jurisdiction.

To avoid acting in excess of its authority, PERB has an obligation to determine whether it has jurisdiction over a dispute, regardless of whether the parties themselves have raised the issue. The Legislature has granted and the courts have consistently upheld PERB’s primary and exclusive jurisdiction over alleged unfair practices. PERB rejected the argument that because the Education Code grants the Office of Administrative Hearings jurisdiction over teacher dismissal proceedings, including pre-hearing discovery, it deprives PERB of jurisdiction over the inquiry into whether the District’s questioning of a union president during a deposition interfered with EERA-protected rights. The allegations in the complaint that the District interfered with employee and union rights under EERA by extensively questioning the union president regarding protected communications with a bargaining unit member, other unit members, and a California Teachers Association staff member, are squarely within PERB’s jurisdiction.

Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, PERB considers federal precedent for its potential persuasive value.

To analyze allegations of employer interference with the rights of employees or employee organizations, PERB uses the standard articulated in Carlsbad Unified School District (1979) PERB Decision No. 89. A charging party establishes a prima facie case of interference where an employer’s conduct tends to or does result in at least slight harm to protected rights. The test for whether a respondent has interfered with protected rights does not require that unlawful motive be established. Once a charging party has established a prima facie case, the burden shifts to the respondent. The degree of harm dictates the respondent’s burden. If the harm is “inherently destructive” of protected rights, the respondent must show that the interference results from circumstances beyond its control and that no alternative course of action was available. For conduct that is harmful but not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. In such cases, PERB balances the asserted need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible.

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. PERB applies private sector labor law principles finding that when an interference claim is based on the employer’s conduct during litigation discovery, the employer’s interest in acquiring the information sought must be balanced against the impact disclosing the information would have on statutorily-protected rights.

PERB adopted the three-part test in Guess?, Inc. (2003) 339 NLRB 432 as the legal standard for determining whether deposition questions interfere with protected rights under the PERB-administered statutes: First, the questioning must be relevant. Second, if the questioning is relevant, it must not have an illegal objective. Third, if the questioning is relevant and does not have an illegal objective, the employer’s interest in obtaining this information must outweigh the employees’ protected rights. Given this broad scope of discovery in teacher dismissal proceedings, PERB could not conclude that the District’s questions were plainly irrelevant to material issues in the dismissal proceeding. PERB did not need to resolve whether the questioning had an illegal objective because it would not change the outcome of the inquiry. PERB found the District’s interest in obtaining the information did not outweigh the president’s and bargaining unit employees’ confidentiality interests, because inquiring into employees’ communications with union representatives chills their exercise of protected rights and the District did not show it had no other means of obtaining the information sought.

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. PERB applies private sector labor law principles finding that when an interference claim is based on the employer’s conduct during litigation discovery, the employer’s interest in acquiring the information sought must be balanced against the impact disclosing the information would have on statutorily-protected rights.

PERB adopted the three-part test in Guess?, Inc. (2003) 339 NLRB 432 as the legal standard for determining whether deposition questions interfere with protected rights under the PERB-administered statutes: First, the questioning must be relevant. Second, if the questioning is relevant, it must not have an illegal objective. Third, if the questioning is relevant and does not have an illegal objective, the employer’s interest in obtaining this information must outweigh the employees’ protected rights. Given this broad scope of discovery in teacher dismissal proceedings, PERB could not conclude that the District’s questions were plainly irrelevant to material issues in the dismissal proceeding. PERB did not need to resolve whether the questioning had an illegal objective because it would not change the outcome of the inquiry. PERB found the District’s interest in obtaining the information did not outweigh the president’s and bargaining unit employees’ confidentiality interests, because inquiring into employees’ communications with union representatives chills their exercise of protected rights and the District did not show it had no other means of obtaining the information sought.

Where a charging party alleges a respondent has interfered with protected activities via litigation, the charging party faces an extra hurdle that is not present in other interference cases: the charging party must establish that the respondent acted without any reasonable basis and for an unlawful purpose. PERB applies private sector labor law principles finding that when an interference claim is based on the employer’s conduct during litigation discovery, the employer’s interest in acquiring the information sought must be balanced against the impact disclosing the information would have on statutorily-protected rights.

PERB adopted the three-part test in Guess?, Inc. (2003) 339 NLRB 432 as the legal standard for determining whether deposition questions interfere with protected rights under the PERB-administered statutes: First, the questioning must be relevant. Second, if the questioning is relevant, it must not have an illegal objective. Third, if the questioning is relevant and does not have an illegal objective, the employer’s interest in obtaining this information must outweigh the employees’ protected rights. Given this broad scope of discovery in teacher dismissal proceedings, PERB could not conclude that the District’s questions were plainly irrelevant to material issues in the dismissal proceeding. PERB did not need to resolve whether the questioning had an illegal objective because it would not change the outcome of the inquiry. PERB found the District’s interest in obtaining the information did not outweigh the president’s and bargaining unit employees’ confidentiality interests, because inquiring into employees’ communications with union representatives chills their exercise of protected rights and the District did not show it had no other means of obtaining the information sought.

The questions asked of the union president were broad in scope and not narrowly tailored to the allegations in the statement of charges or the union president’s involvement in the bargaining unit member’s defenses, particularly regarding the claims of retaliation for reporting unsafe working conditions and requesting accommodations. If the District had narrowly tailored its questions to the union president’s involvement in co-authoring a complaint, the personal observations of the bargaining unit member’s misconduct, or the involvement in securing accommodations for the bargaining unit member, the District’s interest in obtaining that information may have outweighed the harm to protected rights. The District failed to show it narrowly tailored its actions to attain an important purpose while limiting harm to protected rights to the extent possible. With regard to most of the questions, the questions were not narrowly tailored and District’s need for the answers does not outweigh the employees’ strong interest in confidentiality.

The bargaining unit employees did not waive their confidentiality interest by providing information about their communications with the union president to the District. As part of the disclosures in the dismissal appeal, the bargaining unit member produced the union president’s notes from a meeting with the bargaining unit member as well as e-mail correspondence between the bargaining unit member and the union president. PERB found that this may have weakened the bargaining unit member’s confidentiality interest as to these particular communications, it did not amount to a blanket waiver of confidentiality as to all of bargaining unit member’s communications with the union president. Regarding the other bargaining unit members alleged waiver of confidentiality in their communications with the union president, the District provided no citations to the record for this argument, and PERB therefore need not consider it.

PERB rejected the District’s argument that because the union did not move to quash the deposition subpoena nor instruct the union president not to answer the questions objected to, it failed to exhaust its administrative remedies and therefore was barred from bringing the charge. A charging party is not required to exhaust all administrative remedies in another forum prior to filing a charge alleging interference. In this case, the union attorney objected to questions individually and lodged a standing objection to any questions about communications protected by associational privacy. PERB found those objections sufficient to preserve the issue for review.