PERB: Mea Culpa Insufficient To Prevent Unlawful Interference

Jurupa Unified School District (2013) PERB Decision No. 2309-E (Issued on 3/08/13)

This case involved an allegation of retaliation against a teacher for protected activity. The teacher at issue was placed on a 39-month re-employment list pursuant to Education Code section 44978.1. She then filed a grievance. In September 2010, the grievance was denied on the ground that the teacher was no longer an employee. Nine months later, in July 2011, the district sent the teacher a letter clarifying that she remained on the re-employment list. According to the decision, the teacher remained an employee while on the re-employment list and therefore the statement in the grievance denial that the she was no longer an employee was in error.

One of the issues before the Board was whether the district’s July 2011 letter constituted a “retraction” that nullified any coercive effect from the September 2010 grievance denial. In Sacramento City Unified School District (1985) PERB Decision No. 492 (Sacramento) the Board adopted the NLRB doctrine that an honestly given retraction can erase the effects of a prior coercive statement if the retraction was made in a manner that “completely nullified the coercive effects of the earlier statement.” Here, the Board found that the district’s July 2011 did not meet the standards set forth in Sacramento. The Board held that the July 2011 letter was both inadequate and untimely. In terms of adequacy, the Board noted that the July 2011 letter did not address the incorrect statements made in the September 2010 grievance denial. As for timing, the Board stated that an effective retraction should be made within a few days at most.

Comments:

This case highlights the availability of the “retraction” doctrine. You don’t see it that often but practitioners should be aware of its existence. It really just applies to interference cases where an act of the employer is alleged to interfere with, restrain, or coerce employees because of their exercise of protected rights. To my knowledge it has never been applied in the unilateral change or discrimination context.
I’ve argued in the past that there should be some type of safe harbor in the unilateral change context that allows an employer to withdraw a planned change before it occurs and avoid an unfair practice. (See my post here.) Maybe some day PERB will adopt such a holding. But until then, there is still the retraction doctrine in interference cases.
As for the retraction doctrine, this case makes it clear that any retraction must be adequate and timely. An adequate retraction appears to require an acknowledgement of the error or wrongdoing. As for timing, this decision states that any retraction should occur with “days.” These two strict requirements will make retraction difficult for many employers to utilize. However, it’s a doctrine that exists and can be helpful in some cases.