Callifornia PERB decision expands employee rights to talk to each

other under mutual aid and protection rights.

PERB Affirms Employees Right to Contact Faculty, Staff or Students About
Investigations, and Holds That An Employers Blanket Confidentiality Directive
Violates the EERA, December 29, 2014 By Robert J. Bezemek.
For years, public employers have insisted that employees under
investigation, or placed on administrative leave, take no action to
communicate with other employees, students, or members of the public,
about their investigations. Similar confidentiality directives have been
issued to employees whose districts have ordered them barred from campus.
For as long, we have argued that such blanket restrictions on employees
violates their rights under the EERA to communicate with others for their
mutual aid and protection. Now PERB has issued a precedential decision
sustaining the position we have argued.
The decision was issued on December 24, 2014, in the case of Los Angeles
Community College District, PERB Decision No. 2402 (2014). An individual
adjunct instructor, Mr. Perez, was involved in a work dispute, that spilled over
into the classroom. This dispute resulted in the District placing Perez on paid
administrative leave and ordering him to attend a fitness-for-duty
examination. The directive included this order:
You are hereby directed not to contact any members of the faculty, staff or
students. If you have any questions during the time that you are on leave,
please contact [the Vice President of Academic Affairs]. (ALJ decision, p. 6)
The PERB General Counsel issued a complaint alleging that this directive
interfered with Perezs protected rights in violation of section 3543.5(a) of the
EERA. After a PERB trial, the ALJ issued a proposed decision holding that the
directive violated the Act, as alleged. The District appealed.
PERB rejected the appeal, and held that the ALJs conclusions were in
accordance with applicable law, supplementing it with a decision rejecting
various employer defenses. In its ruling, PERB concluded:
It is fundamental that employees have the right to discuss their working
conditions amongst themselves. The District's directive infringes on
employees' protected rights by prohibiting Perez from contacting faculty, staff
or students in connection with the actions taken by the District against Perez
and its ongoing investigation. The scope of the directive is overbroad and
vague in that the directive fails to define the specific conduct it sought to
prohibit in a clear manner. And, at no time did the District clarify that
protected communications were excluded from its scope. By failing to

delineate which communications are lawful or unlawful, the directive would

reasonably be construed to mean that all communications, including those
made while engaging in protected activity, are prohibited.
In circumstances not present here, the employer may have the right to
demand confidentiality of its investigation. (See Caesar's Palace (2001) 336
NLRB 271 [confidentiality rule prohibiting employees from discussing ongoing
drug investigation constituted legitimate business justification for intruding
on employees' exercise of protected rights]; but see Phoenix Transit Systems
(2002) 337 NLRB 510 [confidentiality rule prohibiting employees from
discussing sexual harassment complaints after investigation concluded did
not constitute legitimate business justification].) The burden, however, is
squarely on the employer to demonstrate that a legitimate justification exists
for a rule that adversely impacts employees' protected rights. Here, it is
undisputed that employees placed on administrative leave routinely are
directed not to talk to others about the substance of the investigation without
any determination by the District whether such confidentiality is necessary.
The District offers no explanation as to why the directive was necessary to
preserve the integrity of the District's investigation. Under these facts, the
District has not established its affirmative defense based on operational
necessity. (Emphasis added)
The message of the Los Angeles decision is that a blanket employer rule
forbidding employee communications with colleagues, students and others
about their work experiences, including employer investigations, violates the
EERA. NLRB cases places a heavy burden on employers to justify broad,
general directives that silence employees from discussing employer- ordered
investigations, or adverse actions towards employees. PERB agrees in this
new decision.
Our firm also has a case pending with PERB that addresses the scope of such
directives, and employer justifications. We have argued that a blanket
prohibition on employee communications during the course of an employers
investigation inhibits the discovery of exculpatory evidence, and interferes in
a unions right to prepare for an investigatory interview and assist
employees.
We recommend that unions object to any such blanket policies, and carefully
examine any employer attempts to justify confidentiality directives. A copy of
the decision is available at PERBs Recent Decisions page:
http://www.perb.ca.gov/decisionbank/recentdecisionsredir.aspx