Earlier this week, PERB upheld a retaliation claim made by four employees, all nurses, whose employer, the Rocklin School District, laid them off subsequent to telling them that they were “increasingly being seen as adversarial” as the result of their involvement with their Union. Like other labor-relations statutes (including the MMBA), the Educational Employment Relations Act bars retaliation for exercising union member activity protected under EERA.

The District failed to rebut evidence of a retaliatory motive. It emphasized that statements by District representatives were made, in some instances, years before the layoff. PERB affirmed the finding that the older statements were not isolated. The District representatives made negative statements about the nurse's Union activity for years leading up to their layoff as well as a subsequent decision by the school board to eliminate their positions entirely.

The District argued the decision was made to lay off all nurses and many other district staff, and therefore, there was no evidence of retaliation. But PERB found that, under the circumstances, other evidence demonstrated the District’s retaliatory motive. The Superintendent sent an email to the nurses and all school board members stating that the nurses’ decision to attend the layoff hearing (itself a protected activity) was “regrettable.” Two witnesses testified the Superintendent had stated he included the board members because he thought his email would convince members to vote in favor of the layoff and also to approve elimination of the four nurses’ positions all together.

PERB also agreed that the argument that layoffs were solely for budgetary reasons held no water. No evidence of a budget crisis existed by the time the nurses were laid off. In addition, the District further campaigned for the layoff of the nurses—and elimination of their positions—in a presentation to the school board using proposed budget figures PERB stated were “taken from thin air in that the elements of the alternative health care services delivery option are not costed out.”

Finally, the District cited difficulties with its interactions with the nurses as a reason to restructure its health care services, but PERB affirmed that this demonstrated the presence of retaliatory motive. This is because District representatives had told the board that the highest-quality option for delivery of health care would be “the status quo,” meaning the retention of the nurses. PERB stated that, moreover, the “difficulties” the District had with the nurses smacked of a retaliatory motive: “Considering that the very issue at the heart of the nurses’ protected activities—communication, workload and leadership—are the same issues cited by the District as justification for terminating the nurses' employment, we are all the more persuaded that the District's justifications were pretextual, not the true reason for the layoff of the school nurses, and that the District's affirmative defense is wholly without merit.”

Comment: In this instance, evidence of retaliatory motive seems obvious. But members should be aware that the right to engage in union activities is also protected where more subtle conduct shows a retaliatory motive. Although motive evidence in this case dated back a few years, the retaliatory motive became more obvious in recent events, as reflected in the witness’ testimony regarding the Superintendent’s stated motives. Although such evidence is compelling, it is not necessary. In fact, it is often the case that circumstantial evidence is the only evidence. The law takes into account that an employer may try to hide a retaliatory motive underneath a permissible one. For example, courts have found that the timing of an employer’s adverse action in relation to protected activities in itself may provide adequate evidence of a retaliatory motive.

If you have any questions, please contact Jennifer Stoughton at jennifer@majlabor.com.