PERB: Unlawful To "Blacklist" Former Employees

Monterey Peninsula Unified School District (2017) PERB Decision No. 2530-E (Issued on 6/19/17)

Eric Moberg was a former employee of the Monterey Peninsula Unified School District (MPUSD). Moberg alleged that the MPUSD “blacklisted” him because of his protected activities which caused him to lose jobs with subsequent school districts. The key issue addressed by the Board was whether Moberg had standing, as a former employee, to bring an unfair practice charge against the MPUSD for retaliation. The Board held that he did.

First, the Board noted that under EERA, applicants for employment have standing. The Board theorized that nothing in EERA requires an “applicant” from bringing an unfair practice charge against a different employer than the one the applicant was applying to. Second the Board noted that the National Labor Relations Board (NLRB) has held that the prohibition on retaliation against “employees” for protected activities includes “former employees.” (Towne Ford, Inc. (1998) 327 NLRB 193; NLRB v. Mount Desert Island Hospital (1st Cir. 1982) 695 F.2d 634, 642; Madison S. Convalescent Center (1982) 260 NLRB 816, 823.) Accordingly, the Board held that:

EERA’s prohibition against interference, discrimination and reprisals logically encompasses a former employer’s efforts to prevent a charging party from obtaining subsequent work because of the charging party’s protected activity while employed by the former employer. Thus, a charging party may establish a prima facie violation on the basis of blacklisting by showing that a respondent interfered with the employment process by causing or attempting to cause a potential employer to refuse to hire the applicant because of the applicant’s union activities or other conduct protected by EERA.

Comments:

The Board’s ultimate holding is not surprising. In the employment law arena, it is fairly well-established that “blacklisting” an employee because of the employee’s protected activities can be a form of retaliation. (See Robinson v. Shell Oil Co. (1997) 519 U.S. 337; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal. App. 4th 138.) However, the theory utilized by the Board in this case leaves a little room for confusion. This is because the Board appears to articulate two distinct theories to support its holding.
First, the Board appears to approve of the Board agent’s rationale that Moberg was an “applicant” for employment and therefore covered by EERA, even though he was not an applicant of the MPUSD. Essentially, this means that any applicant can file an unfair practice charge against any employer, even if the employer was not the employer to which the applicant applied for employment. This theory seems to be a bit of a stretch to me. Moreover, this theory creates a distinction among the various statutes. This is because while EERA, HEERA, and the Dills Act expressly cover “applicants,” the MMBA and the other acts do not.
Second, the Board cites to NLRB precedent that the term “employees” covers “former employees.” Therefore, the Board reasons, the same should hold true under EERA. I don’t dispute that there are sound public policy reasons to prohibit retaliation against former employees who have engaged in protected activities. But I note that such a more liberal interpretation of the term “employees” under EERA is a departure from Board precedent. Specifically, in Hacienda La Puente Unified School Dist. (1988) PERB Dec. No. 685-E (“Hacienda”), the Board held that the term “employee” under EERA did not include “applicants.” In response, the Legislature passed SB 342 which amended EERA, HEERA, and the Dills Act to expressly include “applicants” as covered persons under the anti-discrimination provisions in each of these acts. (See Hartnell Community College Dist. (2015) PERB Dec. No. 2452-E, fn. 16.) Thus, in Hacienda, the Board applied a very strict interpretation of the term “employees” despite a vigorous dissent which argued public policy favored a more liberal interpretation. So under Hacienda, the term “employees” does not include “applicants”; but under this case the term “employees” does include “former employees.”
Again, I don’t dispute that there are sound public policy reasons to prohibit retaliation against former employees for protected activities. But this case does illustrate that different Boards can have different views on how far the Board can go before it needs to wait for Legislative action.