May 2019 Newsletter – Community College Districts
Avoiding Interference Charges: Revisiting the No-Contact Directive
In a recent decision, Zink v. San Diego Unified School District (Zink), March 22, 2019, the Public Employment Relations Board (PERB Decision No. 2634) has further established the permissible scope of employee directives during investigatory and disciplinary interviews. Following the decision in Perez v. Los Angeles Community College District (2014) PERB Decision No. 2404 (LACCD), PERB has affirmed its standard for finding that a broad “no contact” directive interferes with the EERA-protected rights of employees.
In Zink, the charging party was a longtime math teacher at a public high school. Charging party asserted two possible theories under which the employer had committed an unfair practice. First, the charging party alleged that the District had retaliated against the employee by placing her on administrative leave, changing her assignment, and reassigning her to a different worksite. In addition, the charging party alleged that the District interfered with EERA-protected rights by issuing a directive that prevented the charging party from engaging in protected conduct.
The facts in Zink were largely undisputed. A contingent of parents at the school lodged a series of complaints and, when the charging party was removed from the classroom and placed on administrative leave, created a petition to prevent charging party from returning to her classroom. While PERB found that the teachers reassignment was an adverse action, the retaliation charge was unsupported and the District had adequate justification (largely supported by parent and student complaints) to change the employee’s assignment and place her on administrative leave pending an investigation. However, the interference charge was upheld.
The District placed the teacher on paid administrative leave while it investigated the initial report, and again when further allegations were received. In its administrative leave letter, the District directed Zink not to report for work, or to appear on District premises, and that:
You are not to discuss the matters of this investigation with any staff member. Should you choose not to follow this directive, we will consider this misconduct, hindering a fair and thorough investigation. Nothing in this letter is intended to restrict your ability to communicate with your union representative or legal counsel about these allegations or any other matter. [Emphasis added.]
Though the directive clearly established that it was not intended to prevent Zink from contacting her representative or private counsel, PERB found that the emphasized portion of the letter constituted interference with EERA-protected rights.
In order to prove a prima facie case of interference, an unlawful motive is not required. Instead, PERB will examine the conduct to determine whether is has a tendency to create at least “slight harm” to employee rights. (LACCD, supra.) In both LACCD and Zink, PERB clearly indicated disapproval for “broad, vague directives that might chill lawful speech or other protected conduct.” (Zink, supra at p. 17.) Where a directive can be reasonably construed to prohibit an employee from participating in protected activities, including the discussion of working conditions with coworkers, the directive interferes with employees protected rights.
Going forward, districts should be cognizant of the directives given to employees in the context of investigatory and disciplinary interviews. Unless there is an operational necessity for the directive – removing employees from a position responsible for making decision about complainants, safeguarding student safety and success, or preventing retaliation when the facts indicate it to be likely – districts should be careful not to employ a broad prohibition against protected activity, such as the directive above. As the Zink decision advises, a desire not to “stir up staff members” is insufficient justification to issue a broad “no contact” order, even when districts recognize the right of employees to consult with their union representatives.
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