What kind of speech and union activity is protected?
When PERB judge Shawn P. Cloughesy ruled that the administrator’s complaint against a union member was frivolous, he had to establish two things:
- The union leader was clearly involved in the union and that his speech was protected.
- The district’s actions qualified as retaliation.
The four elements of retaliation are as such:
- Employees are engaged in protected labor relations.
- The respondent is aware of this protected activity.
- The respondent takes adverse action against the employees.
- The adverse action is a direct response to the protected activity.
The union leader’s speech was about what they referred to as managers, who were majority men, making decisions about work conditions for faculty, who were majority women. According to testimonies from public documents, there is some dispute over whether those majorities are accurate. The union leader said they used the terms “toxic masculinity” and “male ego” through a sociological lens.
“Public employees’ right to engage in concerted activities therefore permits them some leeway for ‘impulsive’ and ‘intemperate’ behavior, including moments of ‘animal exuberance,” according to the PERB findings.
PERB concluded that the speech was opinion-based rather than factual. This distinction is crucial under the EERA, which safeguards employees’ rights to organize and express concerns about employer-employee relations. It also found that the audience the union member spoke to was educated enough to make their own conclusions on this speech.
PERB found that the union leader was “acting in [their] capacity as a representative of United Faculty.”
PERB’s investigation revealed that both Núñez and Ramos violated EERA Section 3543. According to the PERB judge, Ramos initiated an investigation and threat of corrective action, by finding that the union leader had violated the district’s code of ethics.
“Our local unions by and large try to do all that they can to educate employers like North Orange about their obligations, and give them a chance to right their wrongs before resorting to litigation,” said Joseph.
PERB determined that the act of conducting an investigation and filing a complaint against union members constituted “adverse actions” against the union leader.
“It is clear that both Ramos and Núñez were aware of [the union leader’s] advocacy for United Faculty and [their] protected speech,” according to Cloughesy’s findings.
When asked about these allegations, Ramos responded,
The Hornet contacted the Associate Vice Chancellor of Human Resources Julie Kossick, who reports directly to Ramos, through email and phone call, but received no response.