DISCRIMINATION/PROTECTED EMPLOYMENT CLASSES UNDER PERB

Visalia USD v. Public Employment Relations Board – California Court of Appeal, Fifth District (Case No. F084032)

MEMBER(S) INVOLVED: Visalia Unified School District

IMPORTANCE OF STATEWIDE ISSUE:

This case challenged a decision of the Public Employment Relations Board (PERB) finding that employees are deemed part of a protected class simply by virtue of holding union office. Employees protected for holding union office are insulated from discipline even if the reason for the discipline is unrelated to a protected union activity. This insulation makes it difficult for local educational agencies to manage their personnel and programs.
SUMMARY OF THE CASE:
In CSEA, Chapter 83 v. Visalia Unified School District (2022) PERB Decision No. 2806, PERB held that the Visalia USD (District) improperly retaliated against classified employee and California School Employees Association (CSEA) chapter President Gladys Ramirez, by terminating her for engaging in activity protected by the Educational Employees Relations Act (EERA).

This case began in early 2018, when the District learned from a parent that Ramirez had misreported attendance data used for apportionment for its dependent independent-study charter school. Shortly afterwards, the District investigated and discovered significant reporting errors between 2016 and 2018. As a result, the District initiated termination proceedings. Ramirez was eventually terminated on April 9, 2024, following a full evidentiary hearing.

However, Ramirez was also a member of CSEA leadership, initially serving as vice president but assuming the role of president in early 2018, near the time the District learned of her performance issues from the complaining parent. Around that time, Ramirez also made several comments critical of the District’s superintendent at a district board meeting.

On the last day of the six-month limitations period to file an unfair labor practice charge following her dismissal, CSEA filed an unfair labor practice charge claiming Ramirez had been terminated not for her performance issues but in retaliation for engaging in protected activity — that is, serving in union leadership and speaking at a public board meeting. PERB found in Ramirez’s favor. In doing so, PERB found, contrary to its earlier precedent, that Ramirez’s mere service as a union officer qualified as protected activity sufficient to support a retaliation charge. This was a concerning change in PERB caselaw, making it virtually impossible to discipline union officers without risking an unfair practice charge of retaliation.

Appellate Outcome and ELA Involvement:
The District appealed the decision to the California Court of Appeal, and ELA filed a supporting amicus brief. In its brief, the ELA argued that PERB’s decision was contrary to the plain language of the EERA because it relied on language from a statutory scheme that does not apply to school employees (the Meyers-Milias-Brown Act) and prior PERB precedent. The ELA also argued that PERB’s holding would have significant, negative policy implications. Specifically, under PERB’s holding, school employees — entrusted with the education and care of the state’s student population — could shield themselves from legitimate discipline simply by holding union office. This is because, under the Visalia decision, an employee who holds office is always engaging in protected activity and can thus always claim that discipline is improper retaliation for such activity.

On Jan. 9, 2024, the court issued a decision upholding the District’s decision to terminate Ramriez. While this was a victory for the District, the court also agreed with PERB that mere service as a union officer constitutes protected activity for purposes of a retaliation claim under the EERA. The court also dismissed the policy concerns raised by the ELA (as well as the District), instead trusting PERB to thoroughly evaluate whether a union officer’s discipline was truly motivated by their participation in union leadership.

Applying this standard, the court agreed with PERB that the District retaliated against Ramriez, in part due to her status as union officer. To do so, the court reviewed PERB’s application of fact-intensive legal test. While the court disagreed with some of PERB’s analysis, the court found that numerous factors demonstrated retaliatory intent, including the District’s demonstrated animosity toward the union, as well as the fact that Ramriez was disciplined in close temporal proximity to her comments at the District’s January 2018 board meeting.

But, in a twist, the court still upheld Ramirez’s termination because it found the District would have terminated whether she engaged in protected activity or not. The court held that Ramirez’s errors, and the District’s discovery of them, “were entirely divorced from any union activity” and disagreed with PERB and CSEA’s arguments that Ramirez’s errors were so minor that they did not cause any harm. The court also dismissed CSEA and PERB’s claim that the District did not implement progressive discipline and should have allowed Ramirez additional opportunities to address her deficiencies before termination. A competent employee dealing with attendance, grades and related administrative tasks was of great importance, and the court found the District was entitled to impose discipline when these requirements were not met. Having earlier in its opinion assured the District that PERB would carefully review retaliation cases on a case-by-case basis and ensure they have merit, the court appears to have attempted to set an example for PERB regarding how to properly analyze such a case.

CURRENT STATUS AND/OR OUTCOME:
Following the appellate decision, CSEA filed a petition for rehearing, which was denied by the Court of Appeal. Shortly afterwards, CSEA attempted to appeal to the California Supreme Court, and asked that the appellate decision be depublished. However, the Supreme Court declined both requests. As a result, the litigation is complete, and the appellate decision should be used to guide LEAs moving forward.
“Placing the best possible staff in the classroom and in support positions is a critical part of our efforts to strengthen student achievement and well-being and that includes retaining the ability to discipline and remove staff who fall short of the performance or conduct standards needed to serve our kids. So, we were thrilled that CSBA’s Education Legal Alliance helped prevent further erosion of the limited discretion LEAs have to manage underperforming employees and strengthened our hand in the PERB process.”

— Paul McGlocklin,
CCSA President-elect

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