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:

Under the Public Employment Relations Board (PERB) decision being challenged, an employee is deemed to be part of a protected class simply by virtue of holding office in the union. Being part of a protected class insulates an employee from adverse employment actions regardless of whether those actions are related to a protected union activity. If upheld, the ruling would make it difficult to discipline union employees who are also union officers, and it could open the door to unions expanding “officer” roles as a shield to guard against disciplinary actions.

SUMMARY OF THE CASE:

In CSEA, Chapter 83 v. Visalia Unified School District (2022) PERB Decision No. 2806, PERB held that the district retaliated against a classified employee and the California School Employees Association (CSEA), Chapter 83 President Gladys Ramirez, based on her exercise of protected activity under the Educational Employment Relations Act (EERA), when it terminated her employment. Ramirez was terminated by the board of education 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 not performing her duties carefully and competently, which led to numerous errors. Such performance deficiencies predated her time as a union officer.

When the district learned that Ramirez had misreported attendance data used for apportionment for its dependent independent-study charter school, it initiated an investigation to determine what occurred. Following the investigation, which revealed numerous errors, the district initiated termination proceedings on seven separate causes. This led to Ramirez’s termination.

Ramirez was nominated for CSEA chapter vice president in November 2016. The district became concerned about her performance in her current position in December 2016. Ramirez was elected CSEA chapter vice president in January 2017. Between January 2017 and 2018, the district continued to have and express concerns about Ramirez’s performance. In January 2018, Ramirez was elected CSEA chapter president and offered criticism of district leadership during public comment at a school board meeting. On Jan. 18, 2018, Ramirez was placed on administrative leave while the district continued to investigate her performance issues, but she was allowed to continue union activities. Ultimately, as noted above, Ramirez was terminated on April 9, 2019.

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 was terminated in retaliation for engaging in protected activity (i.e., speaking out at a board meeting as CSEA president 14 months prior to her termination). PERB found in Ramirez’s favor. PERB determined that Ramirez engaged in protected activity the entire time she was a union officer, not just on the one occasion she spoke out at a board meeting 14 months before her termination. This change in PERB precedent is concerning, as it will subject school districts and county offices of education to an increase in unfair labor practice charges and will make it virtually impossible for any public school district in the state to terminate (or suspend, discipline, etc.) a union officer going forward as mere status as a union officer is sufficient to show that the employee engaged in protected activity.

CURRENT STATUS AND/OR OUTCOME:

The ELA filed an amicus brief in support of Visalia USD on Jan. 4, 2023. The brief argued that the PERB analysis was contrary to the plain language of the EERA, in that its decision relied on language in a statutory scheme that does not apply to school employees (the Meyers-Milias-Brown Act or MMBA) and a PERB decision interpreting that provision. Moreover, even if citation to that decision was appropriate, PERB misapplied the holding of that case and ignored a more recent precedential PERB decision that supported the district’s argument. The ELA also argued that PERB’s holding would have significant 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 for misconduct or poor performance by simply holding union office. PERB’s holding creates a scenario where every disciplinary action is in temporal proximity to union activity, which could give rise to a discrimination claim for an employee. This is because, under the Visalia decision, holding union office is, by itself and without more, protected activity. Thus, an employee who holds office is effectively always engaging in protected activity for purposes of this analysis. This could lead to an entire class of employees who are, for practical purposes, exempt from disciplinary action even if their actions are harmful to students and/or district or county office operations. Oral argument has been scheduled for Nov. 2, 2023.

Back to Report