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Ramirez was employed by Visalia Unified School District (VUSD) for more than 20 years. She served as the local union chapter vice president and president between 2016 and 2018. In 2015, VUSD initiated termination proceedings against Ramirez. The parties settled the dispute the next year, and Ramirez agreed to transfer into a position with Visalia Charter Independent Study (VCIS). VCIS “operates traditional and online independent study programs” and “is a dependent charter school, meaning it is part of” VUSD.

In either December 2017 or January 2018, a parent complained a student was erroneously assessed an absence. The VCIS principal investigated the complaint, learned the parent was correct, and, when other attendance discrepancies were noticed, initiated a larger investigation. All told, Ramirez incorrectly entered attendance more than 100 times between September 2016 and January 2018, i.e., the entire period she was assigned to perform the task. Ramirez was placed on leave on January 22, 2018, pending further investigation.

Two weeks prior to Ramirez’s placement on leave, she attended a school board meeting and criticized district policy – and the superintendent – requiring certain employees to appear on school property to write “book reports.

The superintendent investigated “deeper” into Ramirez’s errors. This investigation concluded Ramirez “falsif[ied] school district records,” “created numerous transcript and system errors …. creating incorrect and false permanent academic records for students,” failed to implement policy on double-checking attendance, and misadvised ‘students and parents ….” The investigation placed VCIS’s potential liability for misreporting attendance to the state at nearly $750,000.

VUSD subsequently initiated termination charges against Ramirez. Ramirez contested the charges at a hearing provided by VUSD. Numerous witnesses. The hearing officer concluded all charges, except for falsifying records, were substantiated. About one week later, the VUSD school board voted to terminate Ramirez’s employment.

California School Employees Association (CSEA) filed an unfair practice charge with the Public Employment Relations Board (Board or PERB). The filing alleged Visalia Unified School District (VUSD) violated Government Code section 3543.5, subdivision (a), by firing an employee – a secretary and local union chapter president – “in retaliation for engaging in protected union activity.”

The Board, which has exclusive jurisdiction to adjudicate anti-union allegations brought by public employees against public employers, subsequently filed a formal complaint against VUSD. (See § 3541.5.) The formal complaint charged VUSD with violating section 3543 by terminating the employee for engaging in protected activity: serving as a union officer and advocating on the union’s behalf.

The matter proceeded to a formal hearing presided over by an administrative law judge. The same parties testified to the same general facts. Among other findings, the Board held VUSD failed to establish “it would have terminated Ramirez regardless of her protected activity because of her ongoing performance issues.” The Board recognized “concern with the impact of Ramirez’s errors on students [was] a legitimate one,” but believed that was pretextual.

The Court of Appeal concluded that the Board correctly interpreted the law, properly found an inference VUSD retaliated against the employee for her union activity, but erred in holding VUSD failed to prove its affirmative defense it would have terminated the employee for poor performance notwithstanding any protected activity in the published case of Visalia Unified School Dist. v. Pub. Employment Relations Bd. – F084032 (January 2023).

VUSD asserts on appeal the the Education Code hearing conclusively established sufficient cause to terminate Ramirez. Education Code section 45113, subdivision (b) provides that “the governing board’s determination of the sufficiency of the cause for disciplinary action shall be conclusive.” (See Board of Education v. Round Valley Teachers Ass’n (1996) 13 Cal.4th 269, 287 [“school board’s determination of sufficiency of cause for disciplinary action” is conclusive via statute].)

The Court of Appeal noted that there is no decisional law discussing the intersection between Education Code section 45113 and the Educational Employment Relations Act (EERA). Education Code section 45113 vests in school boards the power to determine cause. PERB is entitled to review facts and resolve disputes to determine whether retaliation has occurred, but when Education Code section 45113 applies, it cannot override a finding sufficient cause for discipline existed.

After reviewing the evidence provided by VUSD the Court of Appeal noted that “Ramirez’s errors, and their discovery, were entirely divorced from any union activity. Those errors were real, not fancied or imagined. The attendant investigation originated not in union activity but in a parent’s legitimate complaint.” And it went on to say that “Here, VUSD was legitimately concerned the state would close VCIS due to misreporting attendance. That is a disastrous consequence. Employers need not await disaster to abate catastrophe. (Social Services, supra, PERB Dec. No. 2624-S at. p. 8.) Potential liability and likely recurrence are sufficient to act.”

The Public Employment Relations Board published decision number 2806-E [46 PERC ¶ 115] was set aside. The Board was directed to modify the decision consistent with this opinion and dismiss the complaint issued against VUSD. (§ 3542, subd. (c).)