PERB Decision – Protected Union Speech and Personnel Investigations

07.02.2025

On November 15, 2024, the California Public Employment Relations Board (“PERB”) affirmed the findings and upheld the decision of an administrative law judge (“ALJ”) addressing claims brought by the California School Employees Association Chapter 115 (“Chapter 115”) against Hacienda La Puente Unified School District (“District”) for violating the Educational Employment Relations Act (“EERA”). Specifically, PERB found the District violated the EERA by disciplining an employee for engaging in protected speech (speech related to legitimate labor and employment concerns) related to their role as the Chapter 115 President.

Ruling:

PERB followed past precedent to conclude that when an employee is acting in their capacity as a union official in collective bargaining, investigating or presenting grievances, or administering agreements with the employer, the employer is not authorized to threaten the use of its disciplinary process for official acts taken on behalf of the union. PERB further opined that when an employer is investigating an employee for suspected misconduct and discovers that the employee’s alleged misconduct is related to protected union activities, the employer is required to cease investigation into those allegations unless the employer can prove the employee’s speech lost protection due to being maliciously dishonest or so insubordinate to cause substantial disruption to employer operations.

Case Summary and PERB Analysis:

From 2019 to early 2021, the Chapter 115 President, Margaret Caldera, regularly raised concerns about the conduct of District administrators, particularly during the COVID-19 pandemic. Caldera advocated for safety measures, criticized District policies, and mobilized union members to participate in collective action. In response, the District launched multiple investigations into Caldera, some of which relied on complaints from the same administrators she had criticized. The District interviewed Caldera, disciplined her, and directed her to refrain from speaking about the investigations. In one investigation, an outside investigator concluded that the District’s claims against Caldera lacked merit. Fearing termination if she continued to speak out, Caldera stepped down as Chapter President.

Chapter 115 filed an unfair practice charge with PERB in September 2021, with the ALJ issuing a proposed decision in April 2024 concluding that the District violated the EERA. The EERA protects employee and union speech on covered topics, including criticism of management, working conditions, or union leadership, unless the employer meets its burden to prove that such speech was maliciously dishonest or so insubordinate or flagrant that it causes a substantial disruption to the workplace. Here, the ALJ found that Caldera’s speech was a protected union activity because it was related to legitimate labor and employment concerns (criticism of District officials and encouraging other employees to engage in concerted activity), that the District’s investigation and disciplinary actions were retaliatory against Caldera and discouraged further exercise of her protected rights, and that the District improperly withheld information from Chapter 115. The decision ordered the District to cease and desist from retaliating against Caldera for exercising her rights under the EERA, interfering with the rights guaranteed to employees under EERA, and interfering with Chapter 115’s right to represent bargaining unit employees.

In its order, PERB affirmed the findings of the proposed decision and upheld the ALJ’s proposed remedy. Relying on Novato Unified School District (1982) PERB Decision No. 210, PERB agreed that Caldera’s conduct was a protected activity, that the District did not meet the burden necessary to show her speech lost protection, and that the District took adverse action in response to a protected activity. PERB upheld and modified the ALJ remedy, concluding that when an employee is acting in their capacity as a union official in collective bargaining, investigating or presenting grievances, or administering agreements with the employer, the employer is not authorized to threaten the use of its disciplinary process for official acts taken on behalf of the union.

This decision impacts public employer investigations into employee misconduct that concern protected union activity. As such, when an employer is investigating an employee for suspected misconduct and discovers that the employee’s alleged misconduct may be related to protected union activities, the employer should pause its investigation into those allegations until it determines whether or not the speech is protected. If the employer can prove the employee’s speech lost protection due to being maliciously dishonest or so insubordinate to cause substantial disruption, the employer may continue the investigation. Failure to conduct such analysis may result in costly grievance and unfair practice proceedings.

Due to the complexities in analysis related to these topics, we recommend contacting legal counsel for assistance navigating union claims regarding protected activities. Please contact your regular AALRR counsel or the authors of this alert if you have any questions.

Special thanks to Emilio Avila, our SCELPG law clerk, for his extensive work on this alert.