Remedy for Retaliation: 4 years of back-pay

Chula Vista Elementary School District (2011) PERB Decision No. 2221-E (Issued on 11/23/11)

This is a fairly run-of-the-mill retaliation case.  The employee involved had been a teacher at the Chula Vista Elementary School District (District) for 39 years.  For the last eight years the teacher had also been a “Support Provider” (SP) for the District’s Beginning Teacher Support and Assessment program.  In the spring of 2008, the teacher reapplied to be a SP for the 2008-09 school year.  Her application was rejected.  She alleged—and both the ALJ and Board agreed—that her application to be a SP for the 2008-09 school year was denied in retaliation for her union activities.

As a remedy, PERB ordered the District to pay the teacher back-pay not only for the 2008-09 school year, but also for the 2009-10, 2010-11, and 2011-12 school years.  PERB
rejected the District’s contention that the teacher had no expectation of employment beyond one year since SP’s must reapply every year.  PERB held that given the teacher’s
long tenure, absent the unlawful retaliation she would have continued to be re-hired every year.

In issuing its remedy, PERB put in the following footnote:

The Board recognizes that the remedy in this case reflects, in part, the length of time this case was pending before the ALJ and on appeal to the Board prior to issuance of the Board’s decision. In cases such as this, in which a respondent invokes the Board’s processes by electing to go to hearing following issuance of a complaint by the General Counsel and files exceptions to the AL’s proposed decision, it runs the risk that exhaustion of the Board’s administrative procedures will increase its liability in the event its appeal is unsuccessful.

While blunt, the footnote states the obvious:  The longer it takes to resolve a case the more the potential liability.  What’s helpful about this case is the illustration of just how long it can take to get a case resolved through PERB.  Unfortunately, neither the ALJ’s proposed decision nor the Board’s decision sets forth any of the key dates in this case.  Although we know the underlying facts arose in the Fall of 2008, we don’t know the date the unfair practice charge was filed, the date the complaint was issued, the date of the complaint, the date of hearing, or the date exceptions were filed.  So it’s difficult to tell why this case took so long to resolve.

However, this case is a good illustration for employers of the potential pitfalls of the
PERB process.  As I mentioned in my prior post about PERB’s advisory committee meeting, PERB has made tremendous progress in reducing the backlog of cases.  But it can still take a long time to go through the process.  Because it can take a long time, the back-pay liability in these types of cases can be large.

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