PERB: Police Search Was Adverse Employment Action

Trustees of the California State University (San Marcos) (2009) PERB Dec. No. 2070-H (Issued on 10/15/09)

This case involved an appeal from a dismissal. The unfair practice charge alleged that the California State University (San Marcos) (“CSU”) violated the Higher Education Employer-Employee Relations Act (HEERA) by: (1) unilaterally transferring bargaining unit work to non-unit employees; and (2) retaliating against an employee for using union representation in a dispute over his work assignments. The Board agent dismissed both allegations for failure to state a prima facie case. The Board affirmed the dismissal of the allegation that CSU unlawfully transferred bargaining unit work.  However, the Board reversed the dismissal on the retaliation charge.

With respect to the retaliation charge, the union alleged that one of its bargaining unit members, Rafael Lopez, was retaliated against for filing grievances and utilizing union representation. One of the issues PERB considered was whether the union established that Lopez suffered an adverse employment action. The unfair practice charge alleged that Lopez’ supervisor initiated a false complaint against him that resulted in Lopez’ car being searched by campus police.

In its decision, PERB noted that it had previously held that the filing of a citizen's complaint against an employee with the knowledge that it would lead to an investigation by the employer can constitute an adverse employment action. (California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S.)  Here, the union alleged that Lopez’ supervisor filed a complaint with campus security claiming that Lopez had stolen state property.  The complaint resulted in campus police searching Lopez' personal vehicle.  Under these facts, PERB held that, “A reasonable person would be concerned about the effect of the search on his or her employment because it could lead to discipline, criminal charges, or both.  Thus, despite the fact that Lopez was never disciplined or charged based on the search, we find the vehicle search was an adverse action.”

Comments:

This case caught my attention because of the report to campus police.  The fact that the alleged adverse employment action was based on a police report should normally trigger the absolute protection of Civil Code section 47(b).  Significantly, Section 47(b) was apparently not raised by the parties; or at least it was not addressed by PERB.

Section 47(b) establishes an absolute privilege for statements made during judicial proceedings. The courts have held that Section 47(b) “gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350.)  Section 47(b) has been held that bar all tort causes of action, except a claim for malicious prosecution, based on statements made in a judicial proceeding such as a report to law enforcement.

One of the key cases in this area is Brown v. Department of Corrections (2005) 132 Cal.App.4th 520 (“Brown”). In Brown, an employee of the Department of Corrections filed a whistle-blower complaint under Labor Code section 1102.5 alleging that the department made a police report against him because of his whistleblower activities.  The court held that the department’s report to the police was absolutely privileged under Section 47(b).  While acknowledging the public policy underlying the whistleblower statute, the court nevertheless found that the “importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual.  Thus the absolute privilege is essential.”

Under Brown, the absolute privilege of Section 47(b) has been held to trump discrimination statutes.  Similarly, I believe the statutory protections of HEERA must similarly yield to the absolute privilege of Section 47(b).  While there is certainly a public policy in preventing retaliation against employees who participate in protected union conduct, that public policy cannot trump the policy in favor of promoting the reporting of crimes—even if made in bad faith—to law enforcement.  Indeed, that’s exactly the point of the absolute privilege. 

Thus, even though this decision is precedential, I believe that if the Section 47(b) defense is properly raised, PERB will have no choice but to recognize that a police report cannot form the basis of an adverse employment action.

PERB Stops Strike in Palo Alto

On September 23, 2009, PERB sought and received a temporary restraining order (TRO) from the superior court prohibiting certain health and safety employees in the City of Palo Alto from engaging in a strike called by SEIU Local 521. That TRO applied to public safety dispatchers, water quality control operators, mechanics, and electrical workers, among other employee classifications. On October 15, 2009, the court issued a preliminary injunction, extending the injunction set forth in the TRO indefinitely. In the preliminary injunction, the court specifically found that:

“1. Plaintiff has established the probable validity of its claims and the probability that there is an immediate danger that Defendant SEIU will violate the Government Code by engaging in a strike or work stoppage. Failure to issue this Preliminary Injunction would result in an imminent threat to public health, safety and welfare.

2. This is a proper case for issuance of a Preliminary Injunction, and unless a Preliminary Injunction issues, the City of Palo Alto will face substantial and irreparable injury.”

Comments

This is only the second time this year that PERB has sought injunctive relief on behalf of a party. The first was back in July when PERB obtained a TRO against AFSCME Local 3299, prohibiting it from engaging in a strike against the University of California. Since then PERB has received several requests for injunctive relief, mainly by unions seeking to prevent employers from imposing last, best and final offers. To date, all those requests have been denied, presumably because PERB found no “irreparable harm" as any violation could be remedied later on.

In contrast, PERB has appeared willing to grant requests for injunctive relief when health and safety employees threaten to strike. In my opinion, this is as it should be. By definition, strikes by health and safety employees have the potential to cause irreparable harm to the general public. As such, these situations are tailor-made for PERB’s injunctive relief powers. Quite frankly, I still believe it would be more efficient and make more sense to allow public entities to go directly to superior court to seek injunctive relief, instead of having to detour to PERB first. However, I'm glad that PERB has acted aggressively in stopping these strikes.

10 New Employment Laws You Probably Haven't Heard Of . . .

Last week the Governor signed over two hundred bills and vetoed at least that many. Over the next few weeks, I’m sure we will all be receiving various bulletins describing the major new labor and employment laws in California.  So instead of duplicating that effort, I decided to highlight 10 obscure new laws that affect public sector employment in California.  Have fun reading.

1.  AB 32 (D-Lieu) - Public officials: Personal Information.
Allows an elected or appointed official, or his or her employer, to obtain an injunction against any person or entity that publicly posts on the Internet the home address or telephone number of that official.

2.  AB 381 (D-Block) - Unemployment Compensation Disability Benefits: Academic Employees.  Allows community college districts to elect to provide state disability insurance (SDI) coverage to academic employees who are permanent, part-time, or temporary; and, to management, confidential, and employees who are not part of a bargaining unit.

3.  AB 485 (D- Carter) - Civil Air Patrol: California Wing: Employment Leave.
Requires an employer to provide 10 days of unpaid leave to an employee called to service by the Civil Air Patrol.  (Not just a public sector law)

4.  AB 567 (R- Villines) - Government Practices.
Amends the California Whistleblower Protection Act (CWPA) to cover as “employees” those persons appointed to state boards or commissions

5.  AB 681 (D- Hernandez) - Confidentiality of Medical Information: Psychotherapy.
Allows for the disclosure of confidential medical information (as opposed to a mere Tarasoff warning) by a psychotherapist when there is a serious imminent threat to the health and safety of a reasonably foreseeable victim or victims. Disclosure must be pursuant to a request for information from law enforcement or the target of the threat (which presumably would include employers and/or employees that are targeted).  (Not just a public sector law)

6.  AB 955 (D- León) - Public Safety Officers Procedural Bill of Rights Act: Discipline.
Amends the Public Safety Officers Procedural Bill of Rights Act to clarify that a public agency is not be required to impose discipline within the one-year limitations period; only the investigation and notice of discipline must be completed within the year.

7.  AB 1227 (D- Feuer) - Workers’ Compensation: Public Employees: Leaves of Absence.
Expands the availability of Labor Code 4850 leave—which allows injured peace officers to receive a full year’s pay tax-free—to include local park rangers, community college police, and school district police officers.

8.  AB 1245 (D- Monning) - Recovery of Public Records.
Establishes a procedure by which the Secretary of State can recover governmental records, belonging to the state or a local agency that are found in possession of non-governmental entities or persons (for example, a former employee).

9.  SB 169 (R- Benoit) - Identification: Honorably Retired Peace Officers.
Empowers the head of a local agency that employs peace officers to bestow upon retirees an honorary badge or other emblem that states that person's position as an honorable retired peace officer from that agency.

10.  SB 644 (R- Denham) - Civil Service Examinations: Veterans’ Preference.
Increases the veterans' preference points provided on open, non-promotional state civil service entrance examinations from 10 to 15 points for disabled veterans, and from 5 to 10 points for all other veterans.

SB 656 Vetoed

Back in May, I wrote about SB 656 (DeSaulnier) which sought to remove from PERB’s jurisdiction any bargaining unit comprised of a majority of peace officers as defined by Penal Code section 830.1. (830.1 officers.).  I was partly ambivalent on the bill but opposed to it on the principle that it’s bad public policy to have certain employees covered by PERB and not others.  I’m pleased to report that the Governor has vetoed SB 656 for the same reasons. Here is the Governor’s veto message:

“To the Members of the California State Senate:

I am returning Senate Bill 656 without my signature.

While I am supportive of employee rights, this bill would create an inconsistent treatment of non-peace officer employees in unions with peace officer majorities and similar non-peace officer employees that are in unions without a peace officer majority. I do not believe a sufficient case can be made why one group should circumvent the existing dispute resolution process that currently exists through the Public Employment Relations Board. For these reasons, I am unable to sign this bill.

Sincerely,

Arnold Schwarzenegger”