Legal Update: Visalia Unified School District v. Public Employment Relations Board

Last month, the California Court of Appeal issued a decision in Visalia Unified School District v. Public Employees Relations Board, impacting personnel disputes in school districts throughout California. This is a must-read for all California school district HR directors.

Overview:

Despite finding that a school district’s decision to fire the union chapter president was retaliatory, the court determined the district would have terminated her anyway due to well-documented performance issues. Once an employee has shown that union activities were a motivating factor in the employer’s decision to discharge him or her, the burden shifts to the employer to show that discharge would have occurred regardless of the union activities.

This case illustrates the importance of thoroughly documenting poor job performance and misconduct. It also shatters the illusion that a union chapter president is immune from termination.

From a practical perspective, this case demonstrates the absurdity of public sector job protections and the difficulty public agencies face in attempting to hold employees accountable. This case involved eleven years of documenting performance, processing through various administrative hearings, and ultimately getting a decision from the Court of Appeal. All to terminate an employee who, according to the district, falsified school district records, created numerous transcript and system errors that resulted in incorrect and false permanent academic records for students, and subjected the district to potential liability of nearly $750,000 for misreporting attendance.

Timeline:

1.     2013: District begins documenting concerns regarding employee’s performance.
2.     2015: District initiates termination proceedings against employee. Parties settle and transfer employee to independent study charter in the district.
3.     2017/2018: District receives and investigates new complaint against employee. District places employee on leave pending investigation, and initiates new termination proceedings.
4.     2019: California School Employees Association (CSEA) files unfair practice charge with PERB alleging district violated EERA by firing employee in retaliation for protected union activity.
5. 5.     2020: PERB files a formal complaint charging district with violating EERA by terminating employee in retaliation for union activity.
6.     2021: ALJ hearing and decision. Both parties file exceptions.
7.     2021/2022: PERB hearing and decision.
8.     2024: Court of appeal decision.

Full Story:

The California School Employees Association (“CSEA”) filed an unfair practice charge with the Public Employment Relations Board (“PERB”) against Visalia Unified School District (“Visalia”) alleging that Visalia violated the Educational Employment Relations Act (“EERA”) by terminating CSEA Chapter President Gladys Ramirez in retaliation for protected union activities.

PERB subsequently filed a formal complaint charging Visalia with violating EERA by terminating the employee for engaging in protected activity: serving as a union officer and advocating on the union’s behalf.

PERB found in the employee’s favor, concluding status as a union officer is activity protected under the EERA, Visalia retaliated against the employee for her union activity, and Visalia failed to prove it would have terminated the employee notwithstanding an antiunion motive.

Notably, PERB’s ruling that holding office in a union qualifies as a protected activity under the EERA overrules PERB’s precedent to the contrary:

“Today’s decision requires us to return to the issue and resolve it. We overrule Trustees of CSU and similar decisions to the extent they hold that an employee must allege “something more” than holding union office to show that he or she has engaged in protected activity under any PERB-administered statute.” 

The Court of Appeal concluded PERB properly found an inference Visalia retaliated against the employee for her union activity, but erred in holding Visalia failed to prove its affirmative defense that it would have terminated Ramirez for poor performance notwithstanding any protected activity.

Evidence of Cause

“The test of employer conduct in a mixed motive situation, where legitimate business reasons arguably concur with anti-union motivations as the basis for an employment decision, is a ‘but for’ test—whether the discharge or other violation of protected activity would have occurred anyway regardless of the improper anti-union motivation. This is an affirmative defense which the employer must establish by a preponderance of the evidence.” Visalia Unified School District v. Public Employment Relations Board (2024), 317 Cal.Rptr.3d 169, 193-194  (cleaned up).

“Ramirez’s errors, and their discovery, were entirely divorced from any union activity. Those errors were real, not fancied or imagined, and they exposed the school to a potential $750,000 liability. The attendant investigation originated not in union activity but in a parent’s legitimate complaint.” Id. at 194.

According to the court, “[e]mployers need not await disaster to abate catastrophe. Potential liability and likely recurrence are sufficient to act.” Id.

Documentation of sufficiency of cause to terminate included reprimand letters and substandard performance reviews, showing that Visalia stressed their concerns repeatedly over time without improvement by Ramirez.

Interplay Between Education Code 45113 and EERA – School Board Determination of Cause is Conclusive

Prior to this case, there was no decisional law discussing the intersection between Education Code section 45113 and the EERA. Education Code section 45113 vests in school boards the power to determine cause for termination. PERB is entitled to review facts and resolve disputes to determine whether retaliation has occurred, but when Education Code section 45113 applies, PERB cannot override a finding sufficient cause for discipline existed.

PERB may still find retaliation, but it cannot negate cause. Here, while there was retaliation, there was also cause for termination, and PERB cannot override the district’s determination of cause.

The Court upheld the termination of Ramirez and awarded costs to Visalia.

Julie Hamill is an attorney with California Policy Center. She is the founder of Alliance of Los Angeles County Parents and a Palos Verde Peninsula Unified School Board Trustee.