By Kate Acheson
In Kiona Benton School District, Decision 11563 (EDUC, 2012), the union alleged that the employer committed an unfair labor practice, in retaliating against three, school district employees who exercised their statutory right to participate in an earlier PERC ULP proceeding. PERC hearing examiner Steve Irvin concluded that even though the employees had engaged in protected activities and the employer’s layoffs arguably violated the collective bargaining agreement, the union did not carry its burden of proof that the employer actions were pretextual.
Irvin noted the context of the employer actions:
The events that led to the union’s complaint occurred in 2011, when the employer faced a budget shortfall for the 2011-2012 school year due to projections of a significant reduction in state funding. The employer decided layoffs would be necessary as part of a reduced educational program for the upcoming school year, and the Kiona Benton School District Board of Directors passed a resolution on March 28, authorizing a non-supervisory certificated staff reduction of up to 10 full-time equivalent positions.
Preceding these layoffs, the parties had a strain in their labor relations, which had resulted in arbitrations and ULP hearings. When the layoffs involved three of the union activists, the union filed a complaint.
The first employee, an elementary school teacher, did not have her contract renewed in 2010. This failure to renew was the subject of a grievance against the employer in which the teacher testified. She was reinstated, only to be laid off as part of budget cuts in 2011. The union alleged this lay-off was actually in retaliation for the teacher’s prior testimony.
The second employee, an elementary school substitute teacher, was subpoenaed and appeared, but did not testify at a grievance arbitration hearing. He was later informed by the superintendent that he would not be called as a substitute teacher anymore because some of his students had accused him of engaging in inappropriate action. The union alleged this termination was actually in retaliation for the teacher’s appearance at the grievance arbitration hearing.
The third employee, a high school teacher and building representative, voiced concerns that the superintendent had engaged in threatening actions. That teacher later disregarded an email from the superintendent ordering her to meet with the principal before taking students on a field trip. She received a verbal warning for disregarding the email and for allegedly swearing at the superintendent in a later meeting about the email and the field trip. The union alleged that the email and verbal warning were actually in retaliation for the teacher speaking out against the superintendent.
Irvin explained that under PERC standards, “retaliation” occurs when (1) an employee engages in protected activity; (2) the employer deprives the employee of some ascertainable right, benefit, or status; and (3) there is a causal connection between the protected activity and the deprivation. However, if the employer can show a legitimate reason for their actions, the union must also prove the action was an excuse to enact retaliation or motivated by anti-union sentiments.
Here, Examiner Stephen Irvin found that:
“The employer articulated non-discriminatory reasons for its actions, and the union did not meet its burden of proving the employer’s reasons were pretextual or the employer’s actions were motivated by union animus. As a result, the union’s amended complaint is dismissed.”
Examiner Irvin concluded that the employer had articulated a legitimate, non-discriminatory reason for its actions against each of the three teachers. Budgetary concerns motivated the employer’s decision to layoff the first teacher. Concerns about potential liability attached to retaining a substitute teacher who was the subject of allegations of inappropriate conduct justified the employer’s decision to terminate the employment of the second teacher. The third teacher’s insubordination by disregarding the superintendent’s order to meet with the principal and the likelihood that the teacher had used profanity in the meeting, justified the employer’s verbal warnings.
The union had also alleged that the employer departed from the contractually defined, layoff procedures and that this was evidence of discrimination. Irvin noted these arguments, but concluded that, while these deviations could ultimately be decided by an arbitrator under the CBA grievance arbitration provisions, in the context of the entire record – the union did not demonstrate that these arguable contract deviations were specifically intended to target the union activists.
