Board Expands Scope Of Protected Activity Under EERA

Berkeley Unified School District (2015) PERB Decision No. 2411-E (Issued on 02/19/15)

[Note: There was a typo in my original post. I forgot the word “not” in the second sentence below]

This case involves a teacher who alleges that he was retaliated against by his school district for engaging in protected activity. The issue before the Board was what constitutes protected activity under EERA. Specifically, the Office of the General Counsel (OGC) had determined that the employee’s filing of a curriculum complaint was not protected activity because it was not done to enforce a collective bargaining agreement and did not involve concerted activity.

In its decision, the Board noted that the approach of the OGC differentiates “between an employee complaint arising out of, and based on, professional or academic concerns and an employee complaint arising out of, and based on, employment-related concerns.” According to the Board, this approach fails to take into consideration language unique to EERA that “suggests a broader definition of protected activity when evaluating unfair practice charges arising in the public school arena.” Specifically, the Board noted that EERA recognizes the right of public school employees to be represented by employee organizations of their own choice in both their professional and employment relationships with public school employers. (EERA, § 3540.) The other acts under PERB refer only to the employment, and not the professional, relationship between public employees and their public sector employers. The Board held that the inclusion of the term “professional” in EERA is consistent with the idea that certificated employees are afforded “a voice in the formulation of educational policy.” (EERA, § 3540.) Therefore, the Board held:

In sum, EERA protects certificated teachers’ right to be represented in their professional and employment relationship with their public school employer including their right to have a voice in the formulation of educational policy.

Comments:

I’m not sure that I would have given as much weight to the term “professional” in EERA section 3540 as the Board did here. In my mind, it’s almost a distinction without a difference since both the “professional” and “employment” relationships must be with the public school employer. In other words, any “professional” concerns an employee has with his or her employer would almost always also constitute “employment” concerns. Further, I think the Board could have reached the same conclusion without resorting to the term “professional” in EERA section 3540. For example, in the facts provided in this Board decision, the employee alleged that he was making the complaint on behalf of himself and other teachers. If so, such concerted activity over an employment concern should have been sufficient to establish protected activity under current precedent.
Although this decision arguably expands the scope of protected activity under EERA, I don’t think the decision will have a major impact on employers. Again, this is because most “professional” concerns also constitute “employment” concerns and therefore may be protected anyway.
The reason I thought this case was worth mentioning is to highlight the fact that there are differences among the various labor relations statutes administered by PERB and that sometimes those differences are intentional. This point is easily forgotten since the clear trend in the courts and at PERB has been to interpret the various statutes consistently. For example, when the MMBA first came under PERB’s jurisdiction, the statutory language did not provide for deferral to arbitration. Yet the Board felt that it had the authority to issue a regulation applying the deferral doctrine applied to the MMBA. Similarly, the Supreme Court in Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072 held that the statute of limitations for an MMBA unfair practice charge with PERB is six months, even though the statute is silent on that issue. And there are many more examples. But there are also examples of cases, like this one, where either the courts or PERB have recognized that a difference in language warrants a different interpretation. (See, e.g., Regents of the University of California v. PERB (1985) 168 Cal.App.3d 937.) So the key lesson for practitioners is to be aware of these statutory differences, and more importantly, to understand when differences in statutory language may actually make a difference.