The Public Employment Relations Board ("PERB") in Crowell v. Berkeley Unified School District found the anti-retaliation provisions contained in the Educational Employment Relations Act ("EERA"), Cal. Gov. Code § 3540, et seq., to be broader than those of other public employment statutes because EERA specifically identifies the right to be represented by employee organizations for professional relationships, not simply employment relationships.
Brian Crowell is a high school history teacher with the Berkley Unified School District ("District"), and a member of the bargaining unit represented by the Berkley Federation of Teachers. In February 2013, Mr. Crowell filed what he referred to as a "formal complaint" to the Berkley High School principal regarding his concerns with the ninth grade curriculum. In the complaint, Mr. Crowell emphasized that he was pursuing this issue "on behalf of teachers and [himself] for the betterment of the achievement of the ninth grade students." The "formal complaint" Mr. Crowell referred to was, in fact, an email he sent to the principal that included links to the state curriculum standards. Mr. Crowell also alleged that as a union representative, he had advocated for other teachers in separate communications around the same time.
Mr. Crowell alleged that shortly after sending the complaint, the District began to retaliate against him. The alleged retaliation included, among other things, unfounded accusations of improper attendance record keeping, allegations of improper grading policies in his classroom, and being subject to an in-class observation by the vice-principal on a day that Mr. Crowell had specifically informed the vice-principal that he was not feeling well and would more than likely go home early. Ultimately, Mr. Crowell was rated as "needs improvement" on two evaluation standards and "unsatisfactory" in another on his final summative evaluation. Because he was rated as "unsatisfactory" in one criteria, the vice-principal referred him to the Berkeley Peer Assistance and Review Program ("BPAR"). BPAR is remedial two-year program for teachers with performance deficiencies. Mr. Crowell filed a complaint of retaliation in violation of EERA.
The Office of the General Counsel dismissed Mr. Crowell's complaint, finding that his email complaint about the ninth grade curriculum did not amount to protected activity under EERA. The Office of the General Counsel reasoned the purpose of EERA's anti-retaliation provisions was to protect those who sought to enforce rights stated in a collective bargaining agreement or those who jointly prosecute violations of workplace rights. Filing a complaint about academic standards did not further those purposes. PERB disagreed with that narrow definition.
Looking to EERA's language, PERB found EERA specifically recognized that public school employees had the right to be represented by employee organizations for both employment and professional relationships. The inclusion of "professional relationships" under EERA demonstrated broader protections than other statutes that refer only to employment relationships, such as the Meyers-Milias-Brown Act and the Ralph C. Dills Act. Because Mr. Crowell complained about the ninth grade curriculum on behalf of other teachers and himself with the purpose of bettering the achievement of the ninth grade students, his actions constituted a protected activity under EERA.
This case demonstrates the growing trend across many jurisdictions to broadly construe anti-retaliation provisions in favor of employees. Employers should carefully consider whether an employee's conduct could qualify as protected activity and avoid taking employment actions that could be construed as retaliatory following such conduct.
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