PERB: EERA Covers Employee's "Professional" Relationship with Employer

March 2015

The Public Employment Relations Board ("PERB") issued a decision expanding employee rights under the Educational Employment Relations Act ("EERA") to include the right to union representation in professional and employment matters.  (Brian Crowell v. Berkeley Unified School District (2/19/15) PERB Dec. No. 2411.)

In Berkeley Unified School District, Crowell, a ninth grade history teacher, emailed his school site principal regarding the "compliance and viability of the 9th grade curriculum."  Crowell claimed that he filed this "complaint" on behalf of himself and two additional teachers who were reticent to bring forward individual complaints due to their probationary status.  In his email to the principal, Crowell advised the principal that he intended to file a "district complaint," but wanted to give the school site the "courtesy of meeting" with him to "resolve the issue." 

In response to Crowell's email, the principal agreed to meet with Crowell and the other teachers.  However, in his response, the principal also raised concerns about Crowell's grading practices.  Soon thereafter, Crowell received a Notice of Unprofessional Conduct and Unsatisfactory Performance ("Notice"), unsatisfactory performance evaluations, and a referral to the Berkeley Peer Assistance and Review Program ("BPAR").

Crowell filed an unfair practice charge with PERB, alleging that the school district issued the Notice and the poor performance evaluations, and placed him in the BPAR program in retaliation for raising a complaint about the school district's curriculum.  The Office of General Counsel dismissed the unfair practice charge, in part, because there was no PERB precedent on which to base a finding that the filing of a complaint regarding educational curriculum constitutes protected activity under the EERA. 

On appeal, PERB found that the EERA protects employees who file complaints regarding curriculum.  In doing so, PERB reasoned that, the EERA uniquely recognizes "the right of public school employees to be represented by employee organizations of their choice in both their professional and employment relationships with public school employers."  Additionally, PERB held that the EERA affords certificated employees "a voice in the formulation of educational policy."  PERB relied on its findings in Rancho Santiago Community College District (1986) PERB Decision Number 602, wherein it concluded that as employees, educators are legitimately concerned about "educational policy and academic freedom."    Consequently, in Berkeley Unified School District,  PERB held that Crowell's complaint about the ninth grade curriculum was a protected activity. 

 

The holding in Berkeley Unified School District has the potential to greatly impact the professional relationship between school districts and their employees.  This decision should be carefully considered by school districts when processing complaints and interacting with employees, and their exclusive representatives, regarding curriculum and other "professional" matters.

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Kerrie E. McNally and Siobhan H. Cullen.
Kerrie is a Partner in the F3 Los Angeles and Inland Empire offices.
Siobhan is an Associate in the F3 Los Angeles office.

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