Board Decisions Summary – November 2021
In November of 2021, the Board issued five decisions. The decision descriptions and dispositions are below.
Employer: Palmdale School District
Case No.: LA-CE-6489-E
Issued date: November 1, 2021
Description: Charging Parties Joei Dyes and the AnonymousKnowNothings (Charging Parties) appealed a dismissal by PERB’s Office of the General Counsel (OGC) finding that: (1) PERB lacked jurisdiction over the alleged breach of contract, the alleged defamation, retaliation and/or discrimination based on a protected class (race, gender and age), and any violation of the Labor Code; (2) Charging Parties lacked standing to allege that the employer violated section 3543.5, subdivision (d); (3) Charging Parties failed to establish a prima facie violation of Educational Employment Relations Act (EERA) based on blacklisting or defamation; and (4) Charging Parties’ allegations in the amended charge related to discrimination failed to establish a prima facie case that the employer treated Dyes disparately, departed from established procedures, offered inconsistent or contradictory justifications for its actions, or any other facts that might demonstrate the employers’s unlawful motive. The amended charge also alleged that the employer violated the Public Employee Communication Chapter (PECC) by failing to provide the exclusive representative with Dyes’ contact information within 30 days of her conditional offer of employment. OGC’s dismissal letter did not address this allegation.
Disposition: The Board found that the newly alleged PECC violation predated the amended charge by more than six months and Charging Parties did not allege facts indicating that the relation back doctrine or another recognized exception to the statute of limitations applies. Thus, the new PECC allegation was untimely. Accordingly, the Board found that alleged PECC violation, along with Charging Parties’ remaining allegations, were properly dismissed.
Employer: Alliance Marc & Eva Stern Math & Science High School et al.
Case No.: LA-CE-6362-E through LA-CE-6366-E and LA-CE-6372-E through LA-CE-6377-E
Issued date: November 3, 2021
Description: These consolidated cases came before the Board on exceptions and cross-exceptions, and supplemental briefing after the issuance of Regents of the University of California (2021) PERB Decision No. 2755-H and Regents of the University of California (2021) PERB Decision No. 2756-H, in which the Board articulated the standard for what constitutes a violation of Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD) section 3500. This case arose after a union filed petitions with PERB to seek to represent certificated employees at three of the schools within a charter school management organization, and in response the charter school management organization and several of the schools’ principals and assistant principals sent e-mail messages about the union’s organizing efforts to certificated employees. The complaints issued alleged that these e-mail messages violated the Educational Employment Relations Act (EERA) and the PEDD.
Disposition: The Board held that the e-mails deterred or discouraged support for the union because the e-mails had a strong tendency to influence employee choice about whether or not to authorize representation, as they clearly suggested that unionization, especially with the union, would harm employees’ paychecks, their employment, students, and the continuation of their charter school. The Board thus found sending the e-mails was a violation of PEDD but did not interfere with employee or union rights in violation of EERA.
Employer: Bellflower Unified School District
Case No.: LA-CE-6519-E
Issued date: November 8, 2021
Description: The complaint alleged that the Bellflower Unified School District violated EERA by unilaterally altering the status quo without providing Bellflower Teachers Association notice and the opportunity to meet and negotiate. Specifically, the complaint alleged that the District changed the status quo by requiring employees to attend on-site meetings after the normal on-site workday ended, without obtaining their consent. The ALJ found the District liable for the alleged violation. The proposed decision ordered the District, among other things, to compensate nine teachers with one-half hour of extra pay for attending a mandatory on-site meeting that lasted past the end of their normal on-site workday. The District filed exceptions.
Disposition: The Board affirmed the ALJ’s conclusion. The Board determined the District deviated from the parties’ contract, implemented new policies, and/or enforced existing policy in a new way. The Board also concluded that the deviation had a “generalized effect or continuing impact” on terms and conditions of employment. The other unilateral change elements were not in dispute. Finally, the Board partially granted one of the District’s exceptions regarding the ALJ’s remedial order and directed the Office of the General Counsel to determine in compliance proceedings the number and identity of any teachers entitled to monetary compensation.
Employer: Carpinteria Unified School District
Case No.: LA-CE-6522-E
Issued date: November 16, 2021
Description: The Carpinteria Unified School District filed exceptions to a PERB ALJ’s determination that it retaliated against Carpinteria Association of United School Employees, Local 2216 (CAUSE or Union) President Jay Hotchner because of his protected activities, and thereby denied CAUSE its right to represent its members, in violation of Educational Employment Relations Act (EERA) section 3543.5, subdivisions (a) and (b). Central to the dispute were two Notices of Unprofessional Conduct the District issued to Hotchner. The first Notice included three incidents the District described as unprofessional conduct: Hotchner’s classroom knock-knock joke, his conduct at and surrounding layoff “bumping” meetings, and his interaction with the District’s HR director related to an employee’s personnel file review. The second Notice was for voicemail messages Hotchner left on a parent’s phone.
The Board affirmed the ALJ’s finding that a majority of the conduct underlying the Notices was related to labor and employment disputes, and not so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to substantially disrupt or materially interfere with employer operations, and thus lose protection. (Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13 (Rancho Santiago).) The Board affirmed that these protected activities were the but-for cause of the Notices, and not outweighed by the District’s affirmative defense that it would have issued both the Notices absent Hotchner’s protected activity based on his alleged misconduct. The Board also upheld the ALJ’s subpoena rulings and his remedial order.
Disposition: The Board affirmed the proposed decision, finding that the District retaliated against Hotchner and denied CAUSE its right to represent its members.
Employer: Sanitation Districts of Los Angeles County
Case No.: LA-CE-1339-M
Issued date: November 30, 2021
Description: Respondent Sanitation Districts of Los Angeles County filed exceptions challenging a proposed decision issued by a PERB Administrative Law Judge. The ALJ found that the Respondents had unilaterally used GPS data to investigate potential timekeeping abuse by an employee, failed to adequately respond to Charging Party’s information request, and terminated an employee in retaliation for engaging in protected activity. The Board affirmed the findings of unilateral change and failure to adequately respond to the request for information, but reversed the finding of retaliation.
Disposition: Non-Precedential decision. Proposed decision partially affirmed, partially dismissed.