November 2018 Newsletter – Community College Districts
Employee Email and EERA Protections
PERB continues to refine the contours of employee access and use of employer-provided email systems after adopting the NLRB’s Purple Communications standard, discussed in our September newsletter. A new decision illuminates the type of conduct that may constitute retaliation and interference with EERA-protected rights.
In Chula Vista Elementary School District (Yvellez) (Sept. 28, 2018) PERB Decision No. 2586E, PERB overturned an ALJ’s decision and held that the threat of discipline and an investigation for an employee’s mass-email critical of District management was an unlawful interference with the rights of the employee. By doing so, PERB further provided clarity regarding both protected employee speech and employer interference, and ultimately adopted the NLRB’s standard regarding baseless investigations. In Yvellez, a kindergarten teacher, who was not serving in an official capacity with the exclusive representative, sent an email from his personal email account criticizing the appointment of one of the leaders of the teachers’ union as the district’s human resources director, suggesting that the district should dismiss her from her new position and entreating other employees copied on the email to share his concerns with others. The teacher then used his district email account, again on non-working time, to forward the message to a distribution list that included all of the K-6 teachers in the district with additional criticism. Neither the District’s policies nor the collective bargaining agreement limited or defined acceptable uses of the email system. Nevertheless, the district responded by informing that teacher that he was inappropriately using the district’s e-mail service to share derogatory information that could be construed as slanderous and litigious, and that he could be subjected to possible disciplinary action. Although it commenced an investigation, no findings were submitted to the employee after approximately four months. Instead, the district and the union commenced negotiation over an email policy.
PERB’s analysis of the issue turned on whether the teacher’s emails were protected under the EERA and whether the prior articulation of their test was clear. Specifically, PERB adopted the NLRB standard in Rancho Santiago Community College District ((1986) PERB Decision No. 602) stating that a party claiming that employee speech is unprotected must prove that: 1) The employee’s statement was false, and 2) the employee made the statement with knowledge of its falsity or with reckless disregard for the truth of the statement. The Board acknowledged that the standard has not always been articulated in the same manner, and stating its desire to avoid confusion and potential misapplication of the prior standard, PERB clarified that:
[S]peech related to matters of legitimate concern to employees as employees so as to come within the right to participate in the activities of an employee organization for the purpose of representation on matters of employer-employee relations is protected unless the speech is (1) demonstrably false and (2) the employee knew the speech was false or acted with reckless disregard for whether it was false.
Under its standards in Napa Valley/Purple Communications, PERB found that because the teacher had legitimate access to the email system and sent his email messages on non-working time, he had sufficiently established a presumption that his speech was protected under the EERA. (See Napa Valley Community College Dist. (2018) PERB Decision No. 2563.) PERB further indicated there was nothing in the record indicating that the teacher’s email statements were demonstrably false. In finding the teacher’s speech protected, PERB turned to the question of whether the district retaliated against the teacher because of his protected activity. Specifically, PERB turned to the Superintendent’s message to determine whether it was an adverse action:
- [Y]ou are inappropriately using our [e-mail] service…
- This case is being reviewed by our district attorney…
- [R]ecommending possible disciplinary action.
- [C]ontact [your] union representative or personal attorney.
PERB found that the Superintendent’s communications were likely to convey to a reasonable person that a decision had been made, that misconduct had been found, and that discipline would soon follow, making it an adverse action. Further, because the investigation took place after this adverse action, and after the Superintendent alluded to misconduct having already been found, PERB concluded that the investigation itself constituted an adverse action. As a result, PERB found there was a causal connection (or “nexus”) between the teacher’s email and the adverse actions, therefore establishing a prima facie case of retaliation.
PERB adopts NLRB Standards on Interference
While respecting public employees protected rights, public school employers have an affirmative duty to investigate and prevent misconduct. Citing with approval NLRB precedent, PERB recognized that it is not an unfair labor practice to investigate a complaint of misconduct occurring during the exercise of protected rights. However, PERB determined that continuing an investigation after obtaining sufficient information to determine that the employees conduct was protected is an unfair practice. Under the NLRB, this rule protects employee rights by preventing employer from initiating baseless investigations to dissuade or punish employee for exercising their rights. Against this backdrop, PERB articulated its holding:
[A]n employer does not interfere with employee rights when it conducts an initial investigation of arguably protected activity based on a facially valid complaint, provided that (i) the nature of the complaint legitimately calls into question whether the employee conduct was protected, and (ii) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome.
PERB placed emphasis on the fact that the district’s investigation of the teacher was not motivated by a facially valid complaint, but was triggered by the administration’s disagreement and displeasure with his email correspondence. PERB also took issue with the fact that the district never notified the teacher of the investigation results, instead leaving him in a “perpetual cloud of uncertainty” about potential discipline. Instead, PERB suggested that the district should have sought legal advice regarding the teacher’s emails before investigating, before communicating, and before demanding that the teacher appear for questioning.
From this decision, districts should keep the following in mind: 1) district administrators should maintain a neutral and moderated tone in all communications, and particularly where those communications may “chill” or interfere with employee rights; 2) districts should carefully evaluate all available evidence of misconduct prior to communicating with an implicated employee in order to ensure that investigations are conducted in a timely manner and are not tainted by any improper behavior; and 3) involving legal counsel early in the process can provide a critical perspective regarding perceived misconduct and potential disciplinary issues.
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