Decision 3018E – Downey Unified School District

An employee’s post separation allegations against an employer or a union are actionable if they are integrally tied to the employment relationship and satisfy all other substantive and procedural requirements. For an employee’s charge against an employer, “integrally tied” normally requires that the post-separation conduct arise directly from the employment relationship or its termination. (See, e.g., Hartnell Community College District (2015) PERB Decision No. 2452, pp. 30-33.) When the respondent is a union, “integrally tied” normally requires that the post-separation conduct directly involve the union’s acts or omissions in a matter in which it owes the employee a duty of fair representation. (See, e.g., Service Employees International Union United Healthcare Workers West (Lacy) (2016) PERB Decision No. 2486-M, adopting proposed decision at pp. 4-7.) (pp. 4-5.)

A categorical bar against charges by a former employee that challenge post-separation conduct would undercut fundamental labor law principles, such as: (1) it is unlawful to retaliate against or interfere with the right to use PERB processes (see Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39 [remedying discrimination for using PERB processes is “critical” to PERB’s “function of preserving those processes from abuse”]); and (2) even when an employer has cause to issue discipline, it may not prospectively bar employees from communicating with one another about such discipline or other employment matters. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 11 & p.18, fn. 15 [noting that California’s public sector labor relations laws contain “no more fundamental right” than the right to communicate with coworkers, and finding employer acted unlawfully when, after issuing employee a notice of notice of intent to dismiss, it barred employee from contacting coworkers].) (pp. 4-5.)

The Board partially overruled California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision No. 1029-S, Monterey Peninsula Community College District (2002) PERB Decision No. 1492, San Francisco Unified School District (2009) PERB Decision No. 2000, and similar decisions to the extent they can be interpreted as categorically barring all charging party employees from challenging any conduct occurring after separation from employment. This change does not alter any statutory provision identifying which individuals and entities can file a charge; rather, it resolves a latent tension in PERB’s precedent by clarifying employees’ right to challenge post-separation conduct that is integrally tied to the employment relationship. (pp. 5-6.)

Former employee’s charge did not state a prima facie case of interference or retaliation, where facts former employee had alleged would not establish that the employer’s lawsuit against him both lacked a reasonable basis and was filed for an unlawful purpose. (See, e.g., Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M, pp. 8-10 [PERB applies a qualified litigation privilege based on the principles first set forth in Bill Johnson’s Restaurants, Inc. v. National Labor Relations Bd. (1983) 461 U.S. 731, requiring a charging party to show that allegedly unlawful litigation lacked a reasonable basis and was filed for an unlawful purpose].) The employer’s lawsuit alleged that former employee violated a settlement agreement by pursuing his PERB charge. Because the charge was protected activity, former employee adequately alleged facts that, if proven, would establish that the lawsuit constituted retaliation for protected activity. However, former employee did not alleged facts that would show the lawsuit was objectively baseless. (pp. 2, 6.)

An employee’s post separation allegations against an employer or a union are actionable if they are integrally tied to the employment relationship and satisfy all other substantive and procedural requirements. For an employee’s charge against an employer, “integrally tied” normally requires that the post-separation conduct arise directly from the employment relationship or its termination. (See, e.g., Hartnell Community College District (2015) PERB Decision No. 2452, pp. 30-33.) When the respondent is a union, “integrally tied” normally requires that the post-separation conduct directly involve the union’s acts or omissions in a matter in which it owes the employee a duty of fair representation. (See, e.g., Service Employees International Union United Healthcare Workers West (Lacy) (2016) PERB Decision No. 2486-M, adopting proposed decision at pp. 4-7.) (pp. 4-5.)

An employee’s post separation allegations against an employer or a union are actionable if they are integrally tied to the employment relationship and satisfy all other substantive and procedural requirements. For an employee’s charge against an employer, “integrally tied” normally requires that the post-separation conduct arise directly from the employment relationship or its termination. (See, e.g., Hartnell Community College District (2015) PERB Decision No. 2452, pp. 30-33.) When the respondent is a union, “integrally tied” normally requires that the post-separation conduct directly involve the union’s acts or omissions in a matter in which it owes the employee a duty of fair representation. (See, e.g., Service Employees International Union United Healthcare Workers West (Lacy) (2016) PERB Decision No. 2486-M, adopting proposed decision at pp. 4-7.) (pp. 4-5.)

Because the laws PERB enforces explicitly protect applicants for employment or reemployment (see, e.g., EERA, § 3543.5(a)), there is no question that these laws bar an employer from impeding a former employee's attempt to secure subsequent employment, where such conduct constitutes retaliation for protected activity. (Monterey Peninsula Unified School District (2017) PERB Decision No. 2530, pp. 7-8.) (p. 4, fn. 2.)

PERB precedent recognizes that a union may pursue a charge challenging employer conduct that tends to harm employee rights even when that conduct is directed at an individual who lacks the right to file a charge, such as a non-covered supervisor or manager. (State of California (Department of Consumer Affairs) (2004) PERB Decision No. 1711-S, pp. 18-19.) This principle—that an unfair practice charge does not necessarily turn on the status of the individual against whom conduct is directed—further supports the conclusion that there is no categorical bar on challenges to adverse actions occurring after an employee’s separation. (p. 5, fn. 3.)

The Board partially overruled California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision No. 1029-S, Monterey Peninsula Community College District (2002) PERB Decision No. 1492, San Francisco Unified School District (2009) PERB Decision No. 2000, and similar decisions to the extent they can be interpreted as categorically barring all charging party employees from challenging any conduct occurring after separation from employment. This change does not alter any statutory provision identifying which individuals and entities can file a charge; rather, it resolves a latent tension in PERB’s precedent by clarifying employees’ right to challenge post-separation conduct that is integrally tied to the employment relationship. (pp. 5-6.)

An employee’s post separation allegations against an employer or a union are actionable if they are integrally tied to the employment relationship and satisfy all other substantive and procedural requirements. For an employee’s charge against an employer, “integrally tied” normally requires that the post-separation conduct arise directly from the employment relationship or its termination. (See, e.g., Hartnell Community College District (2015) PERB Decision No. 2452, pp. 30-33.) When the respondent is a union, “integrally tied” normally requires that the post-separation conduct directly involve the union’s acts or omissions in a matter in which it owes the employee a duty of fair representation. (See, e.g., Service Employees International Union United Healthcare Workers West (Lacy) (2016) PERB Decision No. 2486-M, adopting proposed decision at pp. 4-7.) (pp. 4-5.)

The Board partially overruled California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision No. 1029-S, Monterey Peninsula Community College District (2002) PERB Decision No. 1492, San Francisco Unified School District (2009) PERB Decision No. 2000, and similar decisions to the extent they can be interpreted as categorically barring all charging party employees from challenging any conduct occurring after separation from employment. This change does not alter any statutory provision identifying which individuals and entities can file a charge; rather, it resolves a latent tension in PERB’s precedent by clarifying employees’ right to challenge post-separation conduct that is integrally tied to the employment relationship. (pp. 5-6.)

Because the laws PERB enforces explicitly protect applicants for employment or reemployment (see, e.g., EERA, § 3543.5(a)), there is no question that these laws bar an employer from impeding a former employee's attempt to secure subsequent employment, where such conduct constitutes retaliation for protected activity. (Monterey Peninsula Unified School District (2017) PERB Decision No. 2530, pp. 7-8.) (p. 4, fn. 2.)

An employee’s post separation allegations against an employer or a union are actionable if they are integrally tied to the employment relationship and satisfy all other substantive and procedural requirements. For an employee’s charge against an employer, “integrally tied” normally requires that the post-separation conduct arise directly from the employment relationship or its termination. (See, e.g., Hartnell Community College District (2015) PERB Decision No. 2452, pp. 30-33.) When the respondent is a union, “integrally tied” normally requires that the post-separation conduct directly involve the union’s acts or omissions in a matter in which it owes the employee a duty of fair representation. (See, e.g., Service Employees International Union United Healthcare Workers West (Lacy) (2016) PERB Decision No. 2486-M, adopting proposed decision at pp. 4-7.) (pp. 4-5.)

A categorical bar against charges by a former employee that challenge post-separation conduct would undercut fundamental labor law principles, such as: (1) it is unlawful to retaliate against or interfere with the right to use PERB processes (see Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39 [remedying discrimination for using PERB processes is “critical” to PERB’s “function of preserving those processes from abuse”]); and (2) even when an employer has cause to issue discipline, it may not prospectively bar employees from communicating with one another about such discipline or other employment matters. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 11 & p.18, fn. 15 [noting that California’s public sector labor relations laws contain “no more fundamental right” than the right to communicate with coworkers, and finding employer acted unlawfully when, after issuing employee a notice of notice of intent to dismiss, it barred employee from contacting coworkers].) (pp. 4-5.)

The Board partially overruled California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision No. 1029-S, Monterey Peninsula Community College District (2002) PERB Decision No. 1492, San Francisco Unified School District (2009) PERB Decision No. 2000, and similar decisions to the extent they can be interpreted as categorically barring all charging party employees from challenging any conduct occurring after separation from employment. This change does not alter any statutory provision identifying which individuals and entities can file a charge; rather, it resolves a latent tension in PERB’s precedent by clarifying employees’ right to challenge post-separation conduct that is integrally tied to the employment relationship. (pp. 5-6.)