When Is An Individual Employee's Complaint Protected Activity?

Jurupa Unified School District (2012) PERB Decision No. 2283-E (Issued on 8/21/12)

This case involves a fairly convoluted set of facts. Because my focus is on a single sentence in the decision, the relevant facts are simple: The employee, a teacher, was going through a biannual performance evaluation. The employee claims that her reviews became negative after she sought union assistance in responding to an initial report. On June 21, 2010, the employee filed a written complaint under the collective bargaining agreement (CBA) alleging that her evaluation was not conducted in accordance with the contract. That same day, the employee also joined with other employees in filing a group complaint alleging other violations of the CBA.

The Board agent dismissed the portion of the unfair practice charge alleging retaliation for the individual complaint filed on June 21, 2010 on the grounds that it was not a “logical continuance of group activity” and therefore not protected under EERA. In reversing the dismissal, the Board noted that the Board agent did not address whether the complaint procedure was contractual in nature. According to the Board, the employee sufficiently alleged that she was seeking to individually enforce provisions of the contract. The decision then states:

“We hold that seeking individually to enforce provisions of the collectively-bargained agreement is a ‘logical continuation of group activity’ and protected under EERA.”

Comments:

I was drawn to the highlighted sentence above because, at first blush, it seems to contradict recent PERB cases. Early PERB cases recognized that under EERA, an employee has the right to represent himself or herself individual with the employer. (See EERA section 3543; North Sacramento School District (1982) PERB Decision No. 264.) In Pleasant Valley School District (1988) PERB Decision No. 708, PERB extended this concept to hold that an individual employee’s non-contractual safety complaint constituted protected activity. Other PERB cases soon followed suit. (See Livingston Union School District (1992) PERB Decision No. 965; Oakdale Union Elementary School District (1998) PERB Decision No. 1246 (“Oakdale“).)
Beginning in 2003, PERB cases began limiting the protected nature of individual complaints. In Los Angeles Unified School District (2003) PERB Decision No. 1552, the Board noted that in the Oakdale decision, PERB cited with approval a National Labor Relations Board case holding that employee complaints to employers are protected when those complaints “are a logical continuation of group activity.” In contrast, where an employee’s complaint is undertaken for his or her sole benefit, such conduct is not protected. Subsequent PERB cases continued to utilize the “logical continuation of group activity” test for determining whether non-contractual individual complaints are entitled to protection. (See County of Riverside (2009) PERB Decision No. 2090-M (“Riverside“).) These cases emphasize that where “an employee’s complaint is undertaken alone and for his/her sole benefit, that individual’s conduct is not protected.” (Riverside.)
With this background, consider the highlighted sentence: “We hold that seeking individually to enforce provisions of the collectively-bargained agreement is a ‘logical continuation of group activity’ and protected under EERA.” This statement seems to turn the “logical continuation of group activity” test on its head. Under Riverside, a complaint that is a “logical continuation of group activity” is that opposite of one taken for one’s sole benefit. The Board’s statement in this case seems to blend the two tests together and seems to suggest that a complaint taken for one’s sole benefit might be protected simply because it seeks to enforce a collectively-bargained agreement.
So was the intent here to water-down the “logical continuation of group activity” test so that we are effectively back to the Pleasant Valley line of cases? It’s not clear to me. It could be that I’m reading entirely too much into this one sentence. It’s possible that the Board was focused here on enforcing contractual agreements and that it was not trying to signal a change from Riverside when dealing with non-contractual complaints.
I’ll also note that the sentence at issue really wasn’t even necessary. The whole discussion above is only relevant to non-contractual complaints. It is settled law that an individual employee has a protected right to file a grievance or complaint under a CBA. (See EERA section 3543; North Sacramento School District (1982) PERB Decision No. 264.) Thus, once the Board corrected the record to reflect that the June 21, 2010 individual complaint was filed under a CBA, the Board could have stopped there. That’s protected activity. It wasn’t necessary to determine whether the complaint was a “logical continuation of group activity.” So perhaps the highlighted sentence can be considered dicta.
Anyway, as I mentioned above, I could be reading entirely too much into this sentence. But it’s decisions like this that make “PERB-watching” fun…