District's Directive to Employee to Not Contact Other Employees or Students Regarding Initiation of Fitness-for-Duty Examination Violated His Union Rights

Category: Client Update
Date: Jan 23, 2015 01:16 PM

On February 18, 2013, the Los Angeles Community College District (District) advised Carlos E. Perez, an adjunct faculty member, that effective February 19, he would be placed on paid administrative leave while the District initiated a fitness-for-duty examination.  The letter was stamped "Confidential," and stated: "You are hereby directed not to contact any members of the faculty, staff, or students."

Perez filed an unfair practice charge alleging that the District violated the Educational Employment Relations Act (EERA) by retaliating against him because of his protected conduct and interfering with the exercise of his protected rights.  The Office of the General Counsel of the Public Employment Relations Board (PERB) issued an unfair practice complaint on the interference allegations.  The matter was heard in front of an administrative law judge (ALJ), who concluded that the District's directive to Perez not to contact any members of the faculty, staff, or students constituted unlawful interference with protected rights.  The District filed exceptions to the ALJ's proposed decision, but PERB affirmed the proposed decision.  

The EERA protects the right of public school employees to "form, join, and participate in the activities of employee organizations" in matters concerning employer-employee relations.  It also makes it unlawful for a public school employer to interfere with employees because of their exercise of rights under the EERA.  Interference does not require evidence of unlawful motive, only that at least "slight harm" to employee rights results.  In order to establish a prima facie case, the charging party must demonstrate that the employer's conduct tends to or does result in harm to employee rights.  If the charging party establishes a prima facie case, PERB balances the degree of harm to the protected rights against any legitimate business interest asserted by the employer.  Where the harm is slight, the employer may raise the defense of operational necessity, and PERB will balance the competing interests. 

In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct.  Cases decided by the National Labor Relations Board (NLRB) have similarly found that blanket rules prohibiting discussion of employment conditions violate protected rights.  In Banner Health System (2012) 358 NLRB No. 93, the NLRB addressed employer prohibitions on employee discussion of ongoing investigations, and found that the employer's "generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights."  It further stated that it was the employer's burden "to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being fabricated, or there [was] a need to prevent a cover up." 

PERB reasoned that if employees are prohibited from discussing wages, hours, and working conditions at the workplace, they are less equipped to make free and informed decisions about whether to exercise their EERA rights to form, join, or participate in a union.  In this case, the District's directive not to contact faculty, staff, or students would reasonably be interpreted as prohibiting Perez from participating in a variety of protected activities, such as discussing his working conditions with his union or initiating a grievance. While the District argued that Perez was not prohibited from contacting his union, and that his union was copied on the letter containing the directive, PERB held that copying the union on the letter did not clearly notify Perez that it did not intend to intrude on his protected rights.  The fact that the letter was labeled "confidential" could reasonably be construed to prohibit any discussion of the matter. The language in the letter was broad and absolute, and contained no clarifiers.  PERB stated that, "[i]n circumstances not present here, the employer may have the right to demand confidentiality of its investigation."  It noted, however, that the employer will have the burden of establishing a legitimate justification for the prohibition, and that in this case, the District did not explain why its directive was necessary to preserve the integrity of its investigation.  Therefore, PERB held that the District's directive infringed on Perez's protected rights. 

Note: 

Public employers routinely issue "gag" orders during the course of administrative investigations.  Though this decision did not involve an investigation, the Banner Health System decision, upon which PERB relies, did involve an investigation.  In that case, the NLRB held that a "general" concern about protecting the integrity of an investigation is not sufficient to prohibit employees from discussing matters under investigation.  Rather, the employer must now show that witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated or there is a need to prevent a cover up.  It is recommended that agencies do not issue "blanket" gag orders.  Rather, agencies that want to prevent employees from discussing an investigation are urged to identify one of the elements set forth in this decision as a legitimate reason for prohibiting such communications.  It is also recommended that agencies state, in writing, that employees are not prohibited from exercising their protected rights.

Los Angeles Community College District (2014) PERB Decision No. 2404, __ PERC ¶ __.

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