PERB Clarifies Standard on Employee Speech; Affirms Adoption of Purple Communications

Chula Vista ESD (Yvellez) (2018) PERB Decision No. 2586-E (Issued on 9/28/18)

[Note: I’ve fallen behind in commenting on recent PERB cases. There have been quite a few significant PERB cases in the last few months.  This is one of the more important ones…]

In 2012, the President of the Chula Vista Educators (CVE) union resigned to become the school district’s Human Resources Director. Once this change was announced, the CVE’s Vice-President sent an email to the new President and other teachers stating, in part:

I am deeply dismayed by your letter describing your ascendency to President of CVE. It does not appear in any way to convey the offense the union should take at what I believe is a clear case of a breach of fiduciary duty by our past President …

The email went on to accuse the former President of a conflict of interest in negotiating for the union when she allegedly was interested in a management position. One of the teachers who received a copy of the email forwarded it to district management. The district believed the email impugned the integrity of the former CVE President/new Human Resources Director and therefore initiated a disciplinary investigation. CVE argued that subjecting its Vice-President to a disciplinary investigation was retaliation for protected activity.

Email Statements Constitute Protected Activity

In the proposed decision, the ALJ found that the email in question did not constitute protected activity because it implied that the new Human Resources Director was untrustworthy, which would necessarily disrupt her ability to productively engage with the CVE.  In reaching this holding the ALJ applied the well-settled standard that, “Employee speech and conduct may lose statutory protection [when] found to be sufficiently opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference in the workplace.” (See Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12 (Rancho Santiago).)

In rejecting the ALJ’s finding, the Board noted that the traditional Rancho Santiago standard “may nonetheless fail to protect speech that is not maliciously false.” To avoid potential misapplication of the Rancho Santiago standard in cases where the content of employee speech is at issue, PERB clarified that speech related to matters of legitimate concern to employees is protected unless the speech (1) is demonstrably false and (2) the employee knew the speech was false or acted with reckless disregard for whether it was false. Here, PERB held that there was no evidence the statements in the email were false or that they were made with recklessness as to their potential falsity.

Use of District’s Email System

As an alternative ground for finding the e-mail unprotected, the ALJ held that the e-mail violated the District’s practice of allowing employees to send only short informational e-mails via its e-mail system. The Board also rejected this conclusion.

The Board noted that the ALJ’s proposed decision was issued before Napa Valley CCD (2018) PERB Decision No. 2563-E (“Napa Valley”) in which PERB adopted the National Labor Relations Board’s holding in Purple Communications, Inc. (2014) 361 NLRB No. 126.  Here, the Board quickly rejected additional arguments from the district as to why PERB should not adopt Purple Communications. Applying the framework set forth in Napa Valley, the Board concluded that the District failed to demonstrate that any restrictions on employees’ non-business use of its e-mail system were justified by “special circumstances” and therefore necessary to maintain production or discipline.

Comments:

  1. The Rancho Santiago standard (i.e., “opprobrious, flagrant, insulting,
    defamatory, insubordinate, or fraught with malice”) was always very difficult to meet. This decision made it that much harder. To establish that an employee made a statement that is: 1) demonstrably false, and that (2) the employee knew the statement was false or acted with reckless disregard for whether it was false is going to be very difficult.  Employers would be wise to keep this in mind.
  2. However, in my opinion, the use of this two-part test for falsity is intended to apply to employee speech designed to communicate with and/or elicit support from other employees, and not necessarily to workplace confrontations between an employee and employer. Indeed, this is the very distinction made by the NLRB in North West Rural Electric Cooperative, 366 NLRB No. 132 (2018), to which the Board cites in this decision. In that case, the NLRB it noted that, “It is well established that although employees are permitted some leeway for impulsive behavior when engaged in protected activity, this leeway is balanced against ‘an employer’s right to maintain order and respect.'” Although the standard is high, the NLRB affirmed that egregious or offensive conduct can cause protected activity to lose its protection. But the NLRB went on to note that these standards are “tailored to workplace confrontations with the employer” and not an employee’s communication with other employees.
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