Court of Appeal holds that service as union officer constitutes protected activity

Decision has potential to make it more difficult to discipline poorly performing employees who serve as union officers

On Jan. 9, the Fifth District Court of Appeal issued a decision, which upheld the Visalia Unified School District (VUSD) board’s decision to terminate an employee who served as a union officer. Despite this VUSD victory, the court also issued a broader holding that VUSD argued against: that mere service as a union officer constitutes protected activity for purposes of a retaliation claim under the Educational Employment Relations Act (EERA). The broader holding creates several policy concerns for local educational agencies in California.

In January 2018, the VUSD employee, Gladys Ramirez, was elected California School Employees Association (CSEA) chapter president. During the same month, Ramirez offered criticism of district leadership during public comment at a school board meeting, and shortly thereafter, VUSD placed her on administrative leave due to concerns about her performance. Ramirez was terminated by VUSD on April 9, 2019, following a dismissal hearing before a hearing officer who upheld the termination. The causes for termination centered on Ramirez’s ongoing pattern of careless and incompetent performance of her duties. The final straw occurred when the district learned via a parent complaint that Ramirez had misreported attendance data used for apportionment to Visalia Charter Independent Study, a dependent charter school. Following an investigation that revealed numerous errors, the district initiated termination proceedings, which led to Ramirez’s eventual termination.

The Court of Appeal, when reviewing the termination on appeal, determined that mere service as a union officer by any employee covered by the EERA constitutes protected activity for purposes of a retaliation claim. This aligns with the underlying Public Employment Relations Board (PERB) decision appealed by VUSD, in which PERB stated that it was overruling its own prior precedent that something more than mere service as a union officer is required for an employee to be deemed engaged in a protected activity under the EERA.

CSBA’s Education Legal Alliance (ELA) filed an amicus brief that emphasized upholding PERB’s decision would mean that union officers are effectively always engaged in protected activity regardless of their actions, thereby creating a continuous nexus between protected activity and adverse actions such as discipline. This could make it more difficult to legitimately impose discipline on poorly performing employees who serve as union officers and could incentivize the creation of additional union officer positions to shield employees from discipline.

The court determined that the plain language of the EERA protects holding union office, despite the fact that the EERA does not specify that holding union office is activity. This is distinct from the Meyers-Milias-Brown Act that applies to other public employees, which specifically provides that union service constitutes protected activity. Despite this clear distinction in the language, the court held that the difference between the language in the two statutes was “immaterial,” and that the legislative intent was for both types of public employees to receive the same protection. The court dismissed the policy concerns raised by the ELA (as well as VUSD), noting that temporal nexus, alone, is not sufficient to demonstrate retaliation and that it believed PERB would carefully evaluate each retaliation claim on the merits, rather than finding retaliation in every case where the employee being disciplined is a union officer.

The court made additional holdings, specific to the facts of the case. First, VUSD argued that Ramirez was required to appeal her termination by the VUSD board pursuant to Education Code’s provisions before she could seek relief from PERB on her retaliation claim. It also argued that she could not raise issues in her PERB charge that she did not raise in her termination hearing. In declining to accept either argument, the court cited to another appellate court’s holding that where there is an alleged violation of the EERA, the remedy lies with PERB. Thus, the employee could not have presented her case for retaliation before the hearing officer but could rightfully present her claim to PERB.

The court also held that VUSD retaliated against Ramirez. The court analyzed each of the eight factors in PERB’s test to determine retaliation, which is a fact-intensive inquiry. While the court disagreed with some of PERB’s holdings regarding the factors, the court ultimately held that VUSD retaliated against Ramirez. Specifically, the court held that numerous factors demonstrated retaliatory intent, including the finding that VUSD demonstrated animosity toward the union and that there was close timing between Ramirez’s criticism of VUSD leadership at the board meeting and her termination.

In a twist, despite finding retaliation, the court nevertheless ruled in favor of VUSD and ruled VUSD properly terminated Ramirez because it would have terminated her anyway, regardless of union activity. The court held that Ramirez’s errors, and VUSD’s discovery of them, “were entirely divorced from any union activity” and disagreed with PERB and CSEA’s arguments that Ramirez’s errors were “minimal” or “minor” and did not cause actual harm.

The court also dismissed CSEA’s and PERB’s claim that VUSD did not implement progressive discipline and should have allowed Ramirez additional opportunities to address her deficiencies before termination. The court noted that Ramirez had numerous performance issues spanning several years and stated, “Were PERB and CSEA correct, employees could commit the same mistake ad infinitum without repercussion.” The court acknowledged the importance to VUSD of having a competent employee dealing with attendance, grades and related administrative tasks and found that VUSD did engage in progressive discipline, all of which outweighed any protections Ramirez had by virtue of being a union officer.

The court, having earlier in its opinion assured VUSD that PERB would carefully review retaliation cases on a case-by-case basis and ensure they have merit, appears to have attempted to set an example for PERB regarding how to properly analyze such a case.