Decision 2930E – Hacienda La Puente Unified School District

PERB no longer follows a singular test for finding speech unprotected. The superseded test had found speech unprotected if it was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to cause “substantial disruption of or material interference” with operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602.) However, the Board now analyzes whether: (1) speech is proven, by clear and convincing evidence, to have been maliciously false; or (2) speech was sufficiently flagrant or insubordinate as to cause substantial disruption in the workplace, based on all relevant circumstances, including but not limited to: (a) place or forum in which the speech occurred; (b) its subject matter; (c) nature of what occurred; and (d) the extent to which the speech was provoked. (SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19; Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 21-23; Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14.)

EERA allows employee and union speech on protected topics to be impulsive, intemperate, disparaging, or inaccurate, and thereby engender ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate, opprobrious, or flagrant as to cause substantial disruption in the workplace. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 13-14, 16; Mt. San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 9-14; County of Riverside (2018) PERB Decision No. 2591, p. 9; Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16.)

Except for cases involving alleged facial discrimination, PERB considers a charging party’s discrimination or retaliation claim under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 12 & fn. 6.) Under the Novato framework, the charging party’s prima facie case requires each of the following four elements: (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 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. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) (pp. 17-18.)

PERB uses an objective test to determine whether an employer’s action is adverse. (City of San Diego (2020) PERB Decision No. 2747-M, p. 27.) “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” (Ibid.) Context is highly relevant in determining whether non-punitive directives are adverse. (Ibid.) (p. 24.)

While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) (pp. 26-27.)

If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) 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.) 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.) Even direct evidence of unlawful motivation does not bar a respondent from proving that an employee’s protected activity was not the true motivation for its action. (Regents of the University of California (2012) PERB Decision No. 2302-H, p. 4.) (p. 35.)

A spoken notice reading is one example of a non-standard remedy that is warranted “whenever customary remedies are insufficient.” (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 56.) Here, the District’s actions caused the Chapter President to decline to run for that office when her term was up, and could leave other employees chilled by its retaliatory acts. The Board therefore found that this case called for a non-standard remedy. “Notice reading is a way to let in a ‘warming wind of information’ to not only alert employees to their rights but also impress upon them that, as a matter of law, their employer or union must and will respect those rights in the future. Reading the notice (and any explanation of rights) aloud disseminates that information through the work force in a clear and effective way.” (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 42-43 citing Noah’s Ark Processors, LLC D/B/A WR Reserve (2023) 372 NLRB 80, p. 6, citations omitted.) (pp. 42-43.)

The Legislature has vested PERB with broad authority to decide what remedies are necessary to effectuate the purposes and policies of EERA and the other acts we enforce. (EERA, § 3541.5, 1st par. & subd. (c); Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB remedies must serve the dual purposes of compensating for harms that an unfair practice causes and deterring further violations. (County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; The Accelerated Schools (2023) PERB Decision No. 2855, p. 16 (Accelerated Schools); Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 26.) Our de novo review on exceptions to a proposed decision includes review of the proposed remedy. (Accelerated Schools, supra, PERB Decision No. 2855, pp. 16-31).) Here, in reviewing the remedy de novo, the Board supplemented the remedy to include a verbal reading of the notice posting by a District representative to those District employees in the bargaining unit.