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.