August 2019 Newsletter – Community College Districts
Avoiding Interference Charges: PERB Expands Prohibition Against “No-Contact” Directives
In a recent decision, Lukkarila v. Claremont Unified School District, (July 10, 2019 PERB Decision No. 2654) the Public Employment Relations Board (PERB) affirmed and further expanded the scope for finding that a broad “no contact directive” interferes with the EERA protected rights of employees.
During the course of his employment, Mr. Lukkarila made multiple disturbing comments to both teachers and students, including that he “could understand why Los Angeles Police Officer Christopher Dorner went on a killing spree, as his union was not supporting him.” Approximately 40 of Mr. Lukkarila’s co-workers signed a petition stating that his behavior made them and some of their students fearful, and caused a hostile and stressful work environment. The signatories to the petition requested that the district ensure a secure, safe and effective working environment for all its employees. In response, the district issued Mr. Lukkarila a Notice of Paid Administrative Leave and Related Directives which included, in relevant part, a directive prohibiting Mr. Lukkarila from contacting “any district Employees,” with the exception of his union representatives.
While on administrative leave, Mr. Lukarilla sent an e-mail to numerous CFA officers, which at least one of the CFA officers found “threatening.” The CFA officer notified the district that he “need[ed] to have a safe working environment” and requested that “The District needs to do something.” The district sent an e-mail asking Mr. Lukkarila to “cease contacting [CFA officer] regarding such matters.
Mr. Lukkarila then sent another e-mail to the CFA president, with a copy to approximately 200 CFA union members at their private e-mail addresses, discussing several issues related to Mr. Lukkarila’s proposed dismissal and other employment issues. Mr. Lukkarila closed this e-mail by stating that anyone who does not wish to receive e-mails from him should tell him so, or “just spam” his e-mail address.
The district, believing that Mr. Lukkarila had violated the directive prohibiting him from communicating with district staff, sent Mr. Lukkarila a memo entitled “Continued Inappropriate Email Contact of District Employees. In the email, the district directed Mr. Lukkarila “not to have any contact with any district students or staff members, absent specific prior permission from the Assistant Superintendent, Human Resources,” and that, if he continues to contact district staff “the District will be forced to seek more serious measures, which may include amendment of the pending dismissal charges and/or appropriate legal action in a court of law.”
In ruling for the charging party, PERB acknowledged that the district had an obligation to protect employees from unwanted contact and harassing behavior, and that the district’s “no contact directive” clearly stated that the district did not intend to prevent Mr. Lukkarila from contacting his union representatives or private counsel. However, PERB also found that Mr. Lukkarila’s last e-mail was an attempt to seek support from co-workers for his ongoing position and various disputes with the district and CFA, and was not threatening in nature.
PERB further held that even when the employee has a history of communicating with co-workers about working conditions in an inappropriate or threatening manner, the employer may prohibit only the specific inappropriate behavior, but not all communication with co-workers about employment issues. PERB suggested, for example, that the district could have directed Mr. Lukkarila not to engage in intimidating or harassing conduct, or to “refrain from insensitively referring to incidents of gun violence.” However, because the district’s “no contact directive” and the cease and desist letter included a broad prohibition against contacting all coworkers, PERB found that the district interfered with Mr. Lukkarila’s EERA protected rights.
Going forward, districts should be mindful of the wording used in directives given to employees in the context of disciplinary proceedings. Even when there is an operational necessity for a “no contact directive,” such as protecting district employees form ongoing harassment and unwanted contact, districts should be careful not to employ a broad prohibition against protected activity, such as forbidding all contact with other employees. Instead, districts should carefully word any such directive to specify that only the specific unwanted, inappropriate, or harassing contact is prohibited, and that the district does not prohibit the employee from protected activities, such as discussing his working conditions with his coworkers.
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