Escondido Union Elementary School District (2009) PERB Decision No. 2019-E (Issued on 4/30/09); County of Yolo (2009) PERB Decision No. 2020-M (Issued on 4/30/09); Alvord Unified School District (2009) PERB Decision No. 2021-E (Issued on 4/30/09).
A couple of weeks ago PERB released a trio of decisions all involving allegations of discrimination for protected union activities. If you’ve handled a discrimination case before PERB, you know that the main issue is often the motive behind an employment action—what is referred to as the “nexus.” PERB has a set of factors it analyzes in order to determine whether the necessary “nexus” has been established. In addition to timing, these factors are: 1) the employer’s disparate treatment of the employee; (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; and (5) the employer’s offering of exaggerated, vague, or ambiguous reasons to justify its conduct; (6) employer animosity towards union activists; and (7) any other facts that might demonstrate the employer’s unlawful motive.
The Yolo County decision was a fairly standard case. The Board ended up dismissing the charge and the decision doesn’t break any new legal ground; it’s just an application of law to facts. However, this case was interesting because the Board actually took the time to analyze each of the elements of a discrimination case, including all of the above-enumerated factors. You don’t see that too often in PERB decisions, so if you’re litigating a discrimination charge before PERB this case may be worth a read
Alford Unified School District involved an appeal from a dismissal. Nothing new here. The only interesting aspect was that the Board affirmed the Board agent’s finding that the charging party did not allege facts sufficient to demonstrate an adverse employment action. Here, charging was a teacher who was assigned a new teaching schedule that required him to prepare for 3 classes on some days instead of 2. PERB said that without more, the mere fact that the new schedule required more preparation time did not demonstrate that the change was an adverse action.
The Escondido Union Elementary School District decision was the most involved of the three. This was a highly fact intensive case. In the end, PERB sustained some of the ALJ’s findings of discrimination and dismissed others. Because it was very fact sensitive, it’s hard to draw any conclusions. But basically the case involved a situation familiar to all of us: how do you discipline an employee for cause when the employee has also engaged in some form of protected activity? Answer: very carefully. But seriously, if there is a lesson from this case it is that if you (as the employer) have a situation where you need to discipline an employee who has recently engaged in protected activity, you must ensure that you are following all the rules (progressive discipline, proper investigation, etc.) and then take some extra steps to eliminate whatever suspicions might be caused by the unfortunate timing. Here, the combination of bad timing and other shortcomings by the employer lead the Board to conclude that discrimination had indeed occurred.