Court of Appeal Clarifies Legal Standards Applicable to Claims of Retaliation for Protected Union Activity

01.31.2024

The California Court of Appeal recently issued a decision in Visalia Unified School District v. Public Employees Relations Board, which concerns issues that all school districts, community college districts, and county offices of education should be aware of in case of future labor disputes.

In this case, PERB had ruled that holding office in a union qualifies as a protected activity under the Educational Employment Relations Act (“EERA”). This overruled PERB’s own precedent to the contrary; however, the court of appeal found that PERB was correct to do so. The court’s opinion includes a brief but illuminating discussion of how this might affect future courts’ decisions in retaliation cases based on union officer status as a protected activity.

That said, despite agreeing with PERB’s interpretation of the EERA, the court of appeals disagreed with PERB’s overall decision. The case concerned the termination of an employee who served as a local union chapter president. The employee alleged that she had been terminated for engaging in protected union activity, and in response, the Visalia School District raised the affirmative defense that it would have terminated her for her performance, regardless of any protected activity. PERB sided with the employee. The court of appeal, however, held that Visalia proved its affirmative defense.

In cases such as this, a court must strike a balance between ensuring employees have all the protections they are entitled to and ensuring employers have a “sensible latitude for managerial decisionmaking.” Being able to provide a thorough record of misconduct makes it easier for courts to decide how to resolve this problem.

Union Officer Status as a Protected Activity

The court’s conclusion that the EERA protects union officer status was partly based on the EERA’s plain language protecting “exercise of rights guaranteed by” the EERA. But the court also stated that, in interpreting the EERA, it considered the “persuasive value” of the National Labor Relations Act (“NLRA”) and its jurisprudence. The United States Supreme Court decided that “Holding union office clearly falls within the activities protected” under the NLRA. This is worth keeping in mind, should any future disputes under the EERA resemble past disputes under the NLRA.

For public education employers and their legal counsel, the most important thing to note about this may be the court’s discussion of temporal proximity. In a retaliation case, courts will infer an employer’s retaliatory motive based partly on the temporal proximity of an adverse action to an employee’s protected activity. An adverse action closer in time to a protected activity provides stronger support for a retaliatory motive.

Visalia argued that if holding union office were a protected activity, then any adverse action taken by an employer against an employee who held union office would be close in time to a protected activity. The court of appeal disagreed and provided the following analysis of the issue: “The longer an employee holds office without experiencing adverse action, the less likely it is that any adverse action was due to the employee’s union status.” If an employee’s retaliation claim is based solely on holding office as a protected activity, then a court should consider the temporal proximity between the adverse action and the time the employee assumed that office.

The Burden of Proof for an Affirmative Defense

The court agreed not only with PERB’s interpretation of protected activity, but with its inference that Visalia terminated the employee with a retaliatory motive. Nevertheless, the court sided with Visalia overall. After an employee successfully establishes an inference of retaliatory motive, the burden of proof shifts to a school district to establish an affirmative defense. The court held Visalia had met its burden of proof.

Visalia’s employee had repeatedly made errors in student attendance reports, creating false academic records and exposing the school to a $750,000 liability. The court found that although the employee in this case did not ultimately cause serious harm, Visalia prevailed because, based on its documentation of the employee’s past misconduct, the court was convinced that the potential for harm was extremely severe. This shows how important it is to maintain thorough documentation of employee misconduct. To be able to show, by a preponderance of the evidence, that an unrealized, potential harm existed is critical to an affirmative defense.

As the court noted, the employee’s misconduct placed not only the school but also its students at risk. The district was able to show that these errors went back several years. Because of this, the court disagreed with PERB’s holding that termination was a disproportionate response to the employee’s conduct.

Significance of Decision

Public education employers and their legal counsel should be aware of how this case deals with the precedent on protected activities and temporal proximity analysis. They should ensure they are prepared to build clear timelines of employee performance and investigation. The subtler point of this case is that keeping track of matters like this will be valuable not only in preparation for litigation, but in anticipating possible future harms to students and schools. Expecting these things is obviously valuable in its own right, and this case shows that courts will be receptive if those expectations can be backed up with evidence, even if no actual harm has occurred yet.

Please consult with your AALRR legal counsel with any questions.