January 2019 Newsletter – Community College Districts

Employer’s Conduct During the Decision-Making Process Evidences Unlawful Motive In Retaliation Charge

In a recent decision, the Public Employment Relations Board (PERB) issued a decision that provides yet another cautionary tale to employers when disciplining employee who recently exercised their union rights. In California Virtual Academies (Sept. 21, 2018) PERB Decision No. 2584, PERB scrutinized the conduct of managers who terminated an employee after an internal investigation found the employee falsified student records. The employer, a charter school, initiated the investigation into a parent’s complaint of teacher misconduct. After its investigation, the school concluded the teacher falsified records in violation of its “Guidelines for Appropriate Conduct” and dismissed the teacher. In its retaliation charge, the teacher’s union alleged that her termination was actually because the teacher openly participated in a campaign to organize a teachers’ union five months earlier.

Historically, after a sufficient initial showing by the union, an employer would then be able to offer evidence that it actually terminated the employee for another non-discriminatory reason and not because she engaged in protected activity. However, in California Virtual Academies, PERB abandoned the prior framework and increased the employer’s burden of proof by adopting a rule long used by the National Labor Review Board (NLRB), which prohibits an employer from offering evidence of a non-discriminatory reason if that reason was discovered through an investigation that was itself tainted by unlawful motive.

In determining whether the termination was because of the employee’s protected activities, PERB first looked at whether the employer had an unlawful motive for taking the adverse action. Specifically, PERB questioned the employer’s reasons for initiating the investigation and found that the employer exaggerated the seriousness of the parental complaint and shifted its justifications for initiating the investigation. Originally, the employer claimed that the complainant was “upset” and the allegations were “serious.” However, the testimony at the hearing was that the complainant was “not upset, did not complain, and did not request an investigation.”

PERB also found that the internal investigation appeared “superficial” and “one-sided,” failed to consider competing versions of events, and appeared to intentionally avoid information that could conflict with its desired result. PERB also found it suspicious that the employer departed from its established procedure and had an unusual level of involvement from high-level managers. PERB noted that the supervisors most familiar with the employee’s work were not informed of the complaint or subsequent investigation, and were left out of the decision-making process to terminate. In considering the content of the managers’ emails, PERB determined that there was evidence of hostility towards unions and unlawful motive for terminating the employee.

PERB also found that the termination of the employee was uniquely harsh. Specifically, others employees who made similar “entry” errors in student records at around the same time not only experienced no disciplinary action, but were actually offered the opportunity to correct their mistakes. Based on the foregoing, PERB found ample circumstantial evidence that the employer’s motive to terminate the employee was unlawful and made in response to the employee’s ongoing organizing activity.

Accordingly, PERB held that the employer was unable to use the falsified student records as a reason for its termination because the evidence showed that the investigation leading to its discovery was initiated and conducted based upon unlawful motives. As a result, the employer was ordered to reinstate the employee to her former position and required to compensate the employee for backpay and benefits, plus interest.

This case serves as a keen reminder to employers to insure their investigations remain fair and impartial at every stage. It is further recommended that an employer’s conduct remain consistent with established procedures. This is particularly the case when the employee has recently engaged in protected union activity because the employer’s conduct throughout the process will be scrutinized in a retaliation charge.

Should you have any questions regarding the employee discipline or the grounds for a charge of retaliation, please feel free to contact this office.

For more information regarding this article, please contact Rachel Napier at rnapier@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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