In Nelson v. Jurupa Unified School District (PERB Decision 2309E, March 8, 2013), the Public Employment Relations Board ("PERB") considered whether a school district committed an unfair labor practice by rejecting a teacher’s grievance because she was on the district's 39-month reemployment list after she had exhausted all her sick leave. PERB affirmed the ALJ’s ruling that teachers on the 39-month reemployment list remain employees of the district and have the right to file grievances against the District.
What This Means To You
Pursuant to this PERB ruling, adverse action taken while the employee is on a 39-month reemployment list may violate the Educational Employment Relations Act (“EERA”).
Ermine Fredrica Nelson (“Nelson”) was a teacher employed by the Jurupa Unified School District ("District"). She took a medical leave of absence in the fall of 2009. In March 2010, the District informed her that she had exhausted all of her paid leave time and would be placed on the District's 39-month reemployment list, during which time she would be allowed to return to work if she became able to resume her duties.
In August 2010, Nelson filed various grievances and complaints with the District alleging violations of state and federal statutes, as well as provisions of collective bargaining agreements the District had entered. In September 2010, the District responded to Nelson that she was no longer a District employee and therefore lacked standing to file complaints and grievances. Nelson was told that her employment with the District had been terminated in March 2010 when she had exhausted her paid leave and was placed on the 39-month reemployment list. In July 2011, the District contacted Nelson to "clarify her rights" and inform her that she remained on the reemployment list and could resume teaching should she become medically able.
Nelson brought an unfair labor practice charge against the District alleging that it had violated the EERA by retaliating against her for filing a grievance when the District informed her that her employment had been terminated. The ALJ determined that she remained employed as a “public school employee” under the EERA and remained a member of the bargaining unit. The ALJ also determined that the District’s letter informing Nelson that she had been terminated in March 2010 was sent in retaliation for her protected grievance activity.
The District filed exceptions to the ALJ ruling with PERB. The District argued three points: (1) that Nelson's employment status while on the 39-month reemployment list was uncertain, (2) that she was not adversely impacted by being informed that she was terminated, and (3) the communication clarifying her rights nullified any perceived adversity from the prior communications.
The status of persons on the 39-month reemployment list is not unclear, PERB noted, citing previous rulings that placement on the list does not constitute a separation from service and that people on the list remain employees of the school district during that period.
As to an adverse impact, the question is "whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee's employment." Here, PERB said, depriving a person of the status of employee, thus effectively stripping that person the rights and benefits accruing to the person under EERA and the applicable collective bargaining agreement, is inherently adverse. Thus, PERB ruled that informing Nelson that she had been terminated and had no right to bring her grievance constituted an adverse action.
The clarifying communication of July 2011 did little to address the coercive aspects of the prior communication. To be effective, any such retraction would have had to have been tendered within "a few days, at most," PERB said. The retraction was therefore both inadequate and untimely and thus not made in a manner that nullified the coercive effects of the earlier statement.
PERB affirmed the ALJ's conclusion that the District committed an unfair labor practice by retaliating against Nelson for bringing a grievance. It ordered the District to cease and desist from retaliating against Nelson by informing her that she had been terminated and to rescind the notice that her employment was terminated.
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