PERB Finds Retaliation But No Denial Of Right To Union Representation

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Mar 04, 2024

Sean Kane worked as a pharmacist for the State of California (California Correctional Health Care Services) (CCHCS) at California State Prison Corcoran (Corcoran).  Kane was also an AFSCME, Local 2620 job steward.  Kane reported to Michael Conner, the Pharmacist-In-Charge at Corcoran.  Conner reported to CCHCS Chief Executive Officer Celia Bell.

Between January 2020 and November 2020, Conner repeatedly advised staff to wear a face mask and stay six feet away from other staff in accordance with COVID-19 restrictions.

Kane filed a grievance alleging that Conner had violated the parties collective bargaining agreement by discontinuing pharmacists’ standby assignments, thereby eliminating their ability to earn extra pay, and instead using voluntary callback procedures.  Bell denied the grievance.

On November 4, 2020, Kane sent identical information requests in separate e-mails to Conner, Labor Relations Advocate Elane Jalil, and Personnel Specialist Helen Ybarra.  In each e-mail, Kane identified himself as an AFSCME steward and asked if any Corcoran pharmacists had received standby pay since September 14.

After exchanging several emails on November 3 about Kane’s efforts to purchase a needed medication, Conner asked Kane to meet with him in his office on November 4.  Kane arrived and remained standing in Conner’s doorway.  As Conner attempted to discuss how to acquire the needed medication, Kane interrupted and demanded responses to the e-mails Kane had sent in his capacity as an AFSCME steward regarding standby assignments.  This back and forth continued, before Kane demanded union representation.  Conner told Kane that their meeting was not disciplinary, and that no representative was necessary.  Kane continued to talk over Conner and request representation, at which point Conner told Kane that his actions may constitute insubordination.

Kane, still in the doorway, called for another employee to join as a witness.  Conner then stood up, walked to the doorway, and told the other employee to remain at her workstation.  Kane turned back toward Conner, leaned forward and curled his fingers.  Conner, noticing that Kane’s face mask was too low to cover his mouth and nose, asked Kane to step back and pull up his mask.  Kane pulled up his mask but did not immediately step back.  Conner then said that Kane should return to his workstation.  Kane complied.

On November 5, Corcoran administrators convened a workplace violence committee meeting and decided that Kane would be temporarily reassigned.  When Kane was being escorted to his new work location, Kane passed Conner’s office.  Kane kicked the 100-pound steel office door, slamming the door shut and startling Conner.

Following an investigation, CCHCS issued Kane a Notice of Adverse Action (NOAA), dismissing him for allegedly violent conduct on November 4 and 5.  Kane appealed to the State Personnel Board (SPB).  The SPB ruled that Kane’s conduct, while inappropriate, was not violent as CCHCS alleged, and lowered the discipline to a one-month suspension.

AFSCME filed an unfair practice charge against CCHCS, alleging that CCHCS unlawfully denied Kane’s request for union representation during the November 4 discussion at Conner’s office, and that CCHCS had terminated Kane in retaliation for his protected conduct.  PERB’s Office of the General Counsel (OGC) issued a complaint.  Following a hearing before an administrative law judge (ALJ), both parties filed exceptions.

PERB found that AFSCME failed to establish that Conner unlawfully denied AFSCME or Kane representational rights.  PERB noted that Conner began the meeting with a discussion of routine work matters.  If Conner and Kane had discussed the specifics of the pending information requests relevant to the grievance, that would have triggered representational rights.  But nothing required Conner to discuss the information requests during a brief, work-related meeting Conner had called, and Conner declined to do so when Kane mentioned them.  PERB also found that it was a closer question whether representational rights had been triggered when Conner told Kane that his actions may constitute insubordination—a comment that came after the employee first demanded union representation.  Nevertheless, after Kane called the other employee to join the meeting, Conner told the employee to stay at her workstation, asked Kane to comply with COVID-19 protocols, and ended the meeting without any investigative questions or further mention of insubordination.  None of these events triggered representational rights.

On Kane’s retaliation claim, PERB found Kane’s protected activity was at least a substantial or motivating cause of the decision to discipline.  In support of that finding, PERB noted that Kane’s protected requests for information occurred within days before his discipline, and that management exaggerated the facts of the Kane’s misconduct.

PERB found insufficient record evidence to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities.  PERB was particularly interested in evidence regarding the disciplinary penalties for other employees, who had no previous adverse actions – like Kane.

PERB remanded the matter for mediation and, absent a settlement, for further proceedings to determine what level of discipline CCHCS would have imposed absent the employee’s protected activities.

State of California (California Correctional Health Care Services) (2024) PERB Dec. No. 2888-S.

Note:  This case also discusses the collateral estoppel effect of the State Personnel Board’s decision on the UPC. 

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