Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563 (PERB 1979C)

OVERRULED IN PART by Napa Valley Community College
District (2018) PERB Decision No. 2563
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 575,
Charging Party,
V.
LOS ANGELES COUNTY SUPERIOR COURT,
Respondent.
v
Case No. LA-CE-2-C
PERB Decision No. 1979-C
October 7, 2008
Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for American
Federation of State, County and Municipal Employees, Local 575; Wiley, Price & Radulovich
by Joseph E. Wiley, Attorney, for Los Angeles County Superior Court.
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Los Angeles County Superior
Court (Court), to the proposed decision of an administrative law judge (ALJ). The complaint
alleged that the Court violated the Trial Court Employment Protection and Governance Act
(Trial Court Act ) 1 by serving Court employee Carole Prescott (Prescott), who was also the
president of American Federation of State, County and Municipal Employees, Local 575
(AFSCME), a notice of intent to suspend for five days without pay for violating the Court's
e-mail use and courtroom reservation policies.
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated, all statutory references are to the Government Code.

ALJ's proposed decision, the Court's exceptions and supporting brief, and AFSCME's
response thereto. Based on this review, we find that the Court's discipline
of
Prescott, on the
whole, did not violate the Trial Court Act for the reasons discussed below.
BACKGROUND	BACKGROUND
ALJ's proposed decision, the Court's exceptions and supporting brief, and AFSCME's
The Court employs approximately 5,000 employees at over 50 courthouses throughout
Los Angeles County. AFSCME represents a bargaining unit
of
approximately 780 judicial
assistants and court clerks with unit members at each
of
the courthouses. At all times relevant
to this matter, Prescott was a judicial assistant at the Stanley Mosk Courthouse in downtown
Los Angeles. 	She was also president
of
AFSCME during this time.
Court's E-mail Use Policy	Court's E-mail Use Policy
The Court employs approximately 5,000 employees at over 50 courthouses throughout
Effective August
1,
2000, the Court adopted a policy for use
of
its electronic
communications systems which provided in relevant part: "Computer systems, e-mail and the
Internet should only be used to conduct Court business. Personal use is not acceptable."
Shortly thereafter, the Court began negotiating with its employee unions over issues
arising from the unification
of
the superior and municipal courts as mandated by State law. As
part
of
this process, in late 2003 AFSCME and the Court began negotiating over a new
e-mail use policy. The parties exchanged several proposals on the subject. The Court
proposed to prohibit all use
of
its e-mail system for union purposes. Conversely, AFSCME
proposed that it be given unlimited access to the Court's e-mail system to communicate with
bargaining unit members. The parties failed to reach agreement and the Court implemented its
last, best and final offer on the e-mail use policy effective February
1,
2004.
Effective August 1, 2000, the Court adopted a policy for use of its electronic
Shortly thereafter, the Court began negotiating with its employee unions over issues
arising from the unification of the superior and municipal courts as mandated by State law. As
part of this process, in late 2003 AFSCME and the Court began negotiating over a new
e-mail use policy. The parties exchanged several proposals on the subject. The Court
proposed to prohibit all use of its e-mail system for union purposes. Conversely, AFSCME
proposed that it be given unlimited access to the Court's e-mail system to communicate with
bargaining unit members. The parties failed to reach agreement and the Court implemented its
last, best and final offer on the e-mail use policy effective February 1, 2004.
The 2004 electronic communications systems policy states, in relevant part:
2
The 2004 electronic communications systems policy states, in relevant part:
The Court provides access to its electronic communications
systems for the purpose of facilitating the performance of court-
related business
....
Employees may not use the system in a
manner or to a degree that is disruptive or detrimental to the
Court or to the employee's performance
....
	Any violation of
this policy may subject an employee to discipline.
The Court provides access to its electronic communications
response thereto. Based on this review, we find that the Court's discipline of Prescott, on the
whole, did not violate the Trial Court Act for the reasons discussed below.
Los Angeles County. AFSCME represents a bargaining unit of approximately 780 judicial
assistants and court clerks with unit members at each of the courthouses. At all times relevant
to this matter, Prescott was a judicial assistant at the Stanley Mosk Courthouse in downtown
Los Angeles. She was also president of AFSCME during this time.
communications systems which provided in relevant part: "Computer systems, e-mail and the
Internet should only be used to conduct Court business. Personal use is not acceptable."
systems for the purpose of facilitating the performance of court-
related business. . . . Employees may not use the system in a
manner or to a degree that is disruptive or detrimental to the
Court or to the employee's performance. . . . Any violation of
this policy may subject an employee to discipline.

At the PERB hearing, Jeffrey Tend (Tend), the Court's former Assistant Director
of
Human Resources who was the Court's lead negotiator in the policy talks, testified that the
2004 e-mail policy acknowledged the reality that it is impossible for the Court to monitor
every employee e-mail to determine whether or not it pertains to Court-related business. He
also testified that in practice there was no difference between the 2000 and 2004 policies
because the Court never disciplined employees for sending e-mail that it did not consider
detrimental or disruptive to Court operations or employee performance. Thus, according to
Tend, the 2004 policy codified how the Court had actually applied the 2000 policy.2
At the PERB hearing, Jeffrey Tend (Tend), the Court's former Assistant Director of
Tend testified that the 2004 policy revision was primarily concerned with prohibiting
employees from sending non-Court business e-mails to a large number
of
recipients, i.e.
"broadcast" e-mails. 	Tend acknowledged that the Court allowed e-mails between union
stewards, including Prescott, and individual employees on representation matters, and also
allowed AFSCME to send broadcast e-mails into the Court's e-mail system from the outside.
Prescott and AFSCME Representative Damian Tryon (Tryon), both
of
whom were on
AFSCME's negotiating team during the policy negotiations, testified that while AFSCME was
pleased with the Court's "relaxation"
of
the e-mail use policy, it had concerns about whether
the Court would consider union e-mails on topics such as strikes to be detrimental or
disruptive. According to Tryon, during negotiations AFSCME presented several hypotheticals
to determine how the Court would apply this policy language. The Court's responses indicated
it was concerned that excessive personal use
of
the e-mail system would have a negative
impact on employee performance. However, Tryon did not recall the Court specifically
expressing concern over broadcast e-mails.
Tend testified that the 2004 policy revision was primarily concerned with prohibiting
Prescott and AFSCME Representative Damian Tryon (Tryon), both of whom were on
AFSCME's negotiating team during the policy negotiations, testified that while AFSCME was
pleased with the Court's "relaxation" of the e-mail use policy, it had concerns about whether
the Court would consider union e-mails on topics such as strikes to be detrimental or
disruptive. According to Tryon, during negotiations AFSCME presented several hypotheticals
to determine how the Court would apply this policy language. The Court's responses indicated
it was concerned that excessive personal use of the e-mail system would have a negative
impact on employee performance. However, Tryon did not recall the Court specifically
expressing concern over broadcast e-mails.
2Because AFSCME did not rebut this testimony, we find that the practice codified in
the 2004 e-mail use policy was in effect at all times relevant to this matter.
.
3
cause AFSCME did not rebut this testimony, we find that the practice codified in	Be
3
Human Resources who was the Court's lead negotiator in the policy talks, testified that the
2004 e-mail policy acknowledged the reality that it is impossible for the Court to monitor
every employee e-mail to determine whether or not it pertains to Court-related business. He
also testified that in practice there was no difference between the 2000 and 2004 policies
because the Court never disciplined employees for sending e-mail that it did not consider
detrimental or disruptive to Court operations or employee performance. Thus, according to
Tend, the 2004 policy codified how the Court had actually applied the 2000 policy
employees from sending non-Court business e-mails to a large number of recipients, i.e.
"broadcast" e-mails. Tend acknowledged that the Court allowed e-mails between union
stewards, including Prescott, and individual employees on representation matters, and also
allowed AFSCME to send broadcast e-mails into the Court's e-mail system from the outside.
the 2004 e-mail use policy was in effect at all times relevant to this matter.

Prescott's E-mails
During 2002 and 2003, the Court disciplined Prescott three times for violating its
e-mail use policy. On each occasion, she had sent a broadcast e-mail to bargaining unit
members about AFSCME's position on a particular labor relations issue. Prescott received
verbal counseling for the first two violations. For the third violation, she received a written
reprimand.
During the summer
of
2004, AFSCME and the Court were negotiating a successor
memorandum
of
understanding to replace the one that had expired in March
of
that year. 	On
August 12, 2004, Prescott sent an e-mail to all bargaining unit members in the Mosk
Courthouse announcing a union meeting on August 17 in the Department One courtroom
where she worked. The e-mail said the meeting would involve "business
of
importance
regarding the status
of
your contract with the Court" and members should attend to "learn how
the current status
of
the contract impacts you!" The e-mail also encouraged members to wear
"REMEMBER 1997" buttons, a reference to a prior strike by judicial assistants and court
clerks. 	Prescott testified that she called this meeting to get members' views about issues on
which the Court and AFSCME had not yet reached agreement.
During 2002 and 2003, the Court disciplined Prescott three times for violating its
During the summer of 2004, AFSCME and the Court were negotiating a successor
memorandum of understanding to replace the one that had expired in March of that year. On
August 12, 2004, Prescott sent an e-mail to all bargaining unit members in the Mosk
Courthouse announcing a union meeting on August 17 in the Department One courtroom
where she worked. The e-mail said the meeting would involve "business of importance
regarding the status of your contract with the Court" and members should attend to "learn how
the current status of the contract impacts you!" The e-mail also encouraged members to wear
"REMEMBER 1997" buttons, a reference to a prior strike by judicial assistants and court
clerks. Prescott testified that she called this meeting to get members' views about issues on
which the Court and AFSCME had not yet reached agreement.
On August 13, 2004, Prescott sent an e-mail to all unit members countywide reminding
recipients to wear their "REMEMBER 1997" buttons. A supervisor at the Santa Monica
Courthouse, Janet Eggleston (Eggleston), responded to the e-mail. A series
of
e-mails between
Prescott and Eggleston followed within the next hour. Each e-mail was sent to the entire list
of
employees who received Prescott's initial e-mail. Two unit members joined the exchange in
support of AFSCME.
4
On August 13, 2004, Prescott sent an e-mail to all unit members countywide reminding
Prescott's E-mails
On September 17, 2004, Prescott sent an e-mail to all unit members countywide
reminding them of a strike authorization vote to be taken at AFSCME's union hall on the
On September 17, 2004, Prescott sent an e-mail to all unit members countywide
e-mail use policy. On each occasion, she had sent a broadcast e-mail to bargaining unit
members about AFSCME's position on a particular labor relations issue. Prescott received
verbal counseling for the first two violations. For the third violation, she received a written
reprimand.
recipients to wear their "REMEMBER 1997" buttons. A supervisor at the Santa Monica
Courthouse, Janet Eggleston (Eggleston), responded to the e-mail. A series of e-mails between
Prescott and Eggleston followed within the next hour. Each e-mail was sent to the entire list of
employees who received Prescott's initial e-mail. Two unit members joined the exchange in
support of AFSCME.
reminding them of a strike authorization vote to be taken at AFSCME's union hall on the

evening
of
September 21. On November 1, Prescott e-mailed all unit members countywide
about upcoming nominations for union officers and executive board members.
Court's Courtroom Reservation Policy
evening of September 21. On November 1, Prescott e-mailed all unit members countywide
Court's Courtroom Reservation Policy
On or about April 6, 1999, the Court adopted a written policy for use
of
its courtrooms
by outside organizations. The policy provides that an organization wanting to use courtroom
facilities must submit a written request to the Court's facilities services department. Except in
the case
of
"Movie and Television Companies, Studios, Filming Schools," the organization
must submit the request at least three weeks prior to the event.
The policy applies slightly different rules to certified employee organizations. To use
Court facilities for business purposes, the employee organization must submit a written request
to "the Court Operations (Human Resources) or District Manager" at least five business days
prior to the proposed meeting. On August 16, 2004, Court Labor Relations Manager Fernando
Becerra, Jr. (Becerra) sent a letter to the business agents
of
each
of
the employee organizations
representing Court employees. The letter reminded them that use
of
court facilities for union
business requires prior approval by the Court's "executive officer or designee" and that written
requests must be submitted "as soon as possible prior to the date
of
the requested use."
On or about April 6, 1999, the Court adopted a written policy for use of its courtrooms
The policy applies slightly different rules to certified employee organizations. To use
Court facilities for business purposes, the employee organization must submit a written request
to "the Court Operations (Human Resources) or District Manager" at least five business days
prior to the proposed meeting. On August 16, 2004, Court Labor Relations Manager Fernando
Becerra, Jr. (Becerra) sent a letter to the business agents of each of the employee organizations
representing Court employees. The letter reminded them that use of court facilities for union
business requires prior approval by the Court's "executive officer or designee" and that written
requests must be submitted "as soon as possible prior to the date of the requested use."
A separate, unwritten rule applies when an employee wishes to reserve a courtroom in
the courthouse where he or she works for non-Court business. First, the employee must have
permission from the courtroom's judge to use the courtroom for the proposed use. 	Second, the
employee must check with the court coordinator to make sure the courtroom is not being used
for another purpose during the proposed time
of
use.
	If
the courtroom is available at the
proposed time, the court coordinator will reserve it for the employee.
5
A separate, unwritten rule applies when an employee wishes to reserve a courtroom in
Prescott's Courtroom Reservation	Prescott's Courtroom Reservation
5
About a week before sending the August 12, 2004 meeting notice e-mail, Prescott
asked Court Coordinator Charles Queen (Queen) whether she could use the DepartmentOne
About a week before sending the August 12, 2004 meeting notice e-mail, Prescott
about upcoming nominations for union officers and executive board members.
by outside organizations. The policy provides that an organization wanting to use courtroom
facilities must submit a written request to the Court's facilities services department. Except in
the case of "Movie and Television Companies, Studios, Filming Schools," the organization
must submit the request at least three weeks prior to the event.
the courthouse where he or she works for non-Court business. First, the employee must have
permission from the courtroom's judge to use the courtroom for the proposed use. Second, the
employee must check with the court coordinator to make sure the courtroom is not being used
for another purpose during the proposed time of use. If the courtroom is available at the
proposed time, the court coordinator will reserve it for the employee.
asked Court Coordinator Charles Queen (Queen) whether she could use the Department One

courtroom in which she worked for a lunchtime union meeting on August 17. Finding no
conflict, Queen scheduled the room and placed a corresponding notation on his calendar.
Because Judge Carolyn Kuhl (Judge Kuhl), who was assigned to Department One, was on
vacation at the time Prescott made the reservation, Prescott did not obtain her permission to
use the courtroom on August 17.3
courtroom in which she worked for a lunchtime union meeting on August 17. Finding no
The union meeting took place as scheduled, with 28
bargaining unit members attending.
Court's Investigation and Discipline of Prescott	Court's Investigation and Discipline of Prescott
he union meeting took place as scheduled, with 28
On August 13, 2004, the Court's human resources department learned of Prescott's
union meeting and button reminder e-mails. Later that day, Employee Relations Analyst
Donna Lough (Lough) telephoned Prescott. Lough asked Prescott whether she had
authorization to send the union meeting notice e-mail. Prescott responded that she believed
she could send union meeting notice e-mails because of statements made to her in 2002 when
she was disciplined for sending a union business e-mail. Lough told Prescott that her union
meeting notice e-mail violated the e-mail use policy because it was not "Court-related
business." Lough also asked Prescott if she had authorization to use the courtroom for the
August 17 union meeting. Prescott replied that she did not get Judge Kuhl's permission
because Judge Kuhl was on vacation.
6
On August 13, 2004, the Court's human resources department learned of Prescott's
use the courtroom on August 17." T
On November 17, 2004, the Court delivered Prescott a letter of intent to suspend her for
five days without pay for her violation of the e-mail use and courtroom reservation policies.
The letter stated that "it is inappropriate for you to use the Court's computer system to conduct
union business." It further noted that Prescott had previously been told not to use the Court's
TThere is a factual dispute over whether Prescott told Court management during their
investigation of her courtroom use that Judge Kuhl had previously told Prescott she did not
need Judge Kuhl' s permission to use the courtroom for meetings and only needed to check
with Queen to make sure the courtroom was available at the proposed meeting time. However,
because the Court disciplined Prescott for violating the written reservation policy applicable to
outside organizations, not the employee reservation policy which requires a judge's permission
to use the courtroom, we need not resolve this dispute.
'
On November 17, 2004, the Court delivered Prescott a letter of intent to suspend her for
investigation of her courtroom use that Judge Kuhl had previously told Prescott she did not
here is a factual dispute over whether Prescott told Court management during their
need Judge Kuhl's permission to use the courtroom for meetings and only needed to check
with Queen to make sure the courtroom was available at the proposed meeting time. However,
because the Court disciplined Prescott for violating the written reservation policy applicable to
outside organizations, not the employee reservation policy which requires a judge's permission
to use the courtroom, we need not resolve this dispute.
conflict, Queen scheduled the room and placed a corresponding notation on his calendar.
Because Judge Carolyn Kuhl (Judge Kuhl), who was assigned to Department One, was on
vacation at the time Prescott made the reservation, Prescott did not obtain her permission to
bargaining unit members attending.
union meeting and button reminder e-mails. Later that day, Employee Relations Analyst
Donna Lough (Lough) telephoned Prescott. Lough asked Prescott whether she had
authorization to send the union meeting notice e-mail. Prescott responded that she believed
she could send union meeting notice e-mails because of statements made to her in 2002 when
she was disciplined for sending a union business e-mail. Lough told Prescott that her union
meeting notice e-mail violated the e-mail use policy because it was not "Court-related
business." Lough also asked Prescott if she had authorization to use the courtroom for the
August 17 union meeting. Prescott replied that she did not get Judge Kuhl's permission
because Judge Kuhl was on vacation.
five days without pay for her violation of the e-mail use and courtroom reservation policies.
The letter stated that "it is inappropriate for you to use the Court's computer system to conduct
union business." It further noted that Prescott had previously been told not to use the Court's

e-mail system "for any purposes other than Court business." A copy
of
the 2000 e-mail use
policy was attached to the letter. As for the courtroom meeting, the letter stated that "[i]t is
also inappropriate for you to use Court facilities for union business without prior
authorization" from management. No courtroom reservation policy was attached or referenced
in the letter.
On January 21, 2005, the Court delivered Prescott a letter suspending her for three days
without pay for the violations stated in the November 17, 2004 letter. This letter quoted from,
and attached a copy of, the April 6, 1999 courtroom reservation policy for outside
organizations. The discussion
of
Prescott's e-mail use was identical to that in the letter
of
intent.
e-mail system "for any purposes other than Court business." A copy of the 2000 e-mail use
On January 21, 2005, the Court delivered Prescott a letter suspending her for three days
without pay for the violations stated in the November 17, 2004 letter. This letter quoted from,
and attached a copy of, the April 6, 1999 courtroom reservation policy for outside
organizations. The discussion of Prescott's e-mail use was identical to that in the letter of
intent.
ALJ' s Proposed Decision	ALJ's Proposed Decision
The ALJ found that by disciplining Prescott for union activity, the Court harmed or
tended to harm both Prescott's and AFSCME's organizational iights under the Trial Court Act.
The ALJ then examined whether the harm was justified by legitimate business reasons.
First, the ALJ found that the statutory language and stated purposes
of
the Trial Court
Act grant a union a presumptive right
of
access to an employer's facilities and internal means
of
communication. Regarding the Court's e-mail use policy, the ALJ found the record did not
establish that the e-mails for which Prescott was disciplined were disruptive because the Court
did not discipline employees for sending non-union broadcast e-mails. However, "the more
salient fact" to the ALJ was that the Court had sent broadcast e-mail to employees about its
position on labor relations issues and therefore it was discriminatory for the Court to prohibit
AFSCME from using the same means to express its position on those issues.
The ALJ found that by disciplining Prescott for union activity, the Court harmed or
First, the ALJ found that the statutory language and stated purposes of the Trial Court
Act grant a union a presumptive right of access to an employer's facilities and internal means
of communication. Regarding the Court's e-mail use policy, the ALJ found the record did not
establish that the e-mails for which Prescott was disciplined were disruptive because the Court
did not discipline employees for sending non-union broadcast e-mails. However, "the more
salient fact" to the ALJ was that the Court had sent broadcast e-mail to employees about its
position on labor relations issues and therefore it was discriminatory for the Court to prohibit
AFSCME from using the same means to express its position on those issues.
7
As for the courtroom reservation policy, the ALJ concluded that the Court's written
reservation policy was not unreasonable "as it applies to non-employee AFSCME
representatives." Nonetheless, the ALJ found Prescott's discipline discriminatory because she
7
As for the courtroom reservation policy, the ALJ concluded that the Court's written
policy was attached to the letter. As for the courtroom meeting, the letter stated that "[ijt is
also inappropriate for you to use Court facilities for union business without prior
authorization" from management. No courtroom reservation policy was attached or referenced
in the letter.
tended to harm both Prescott's and AFSCME's organizational rights under the Trial Court Act.
The ALJ then examined whether the harm was justified by legitimate business reasons.
reservation policy was not unreasonable "as it applies to non-employee AFSCME
representatives." Nonetheless, the ALJ found Prescott's discipline discriminatory because she

was disciplined for following the same policy as other Court employees who had reserved
courtrooms for non-union events such
as
baby showers and birthday parties.
Court's Exceptions	Court's Exceptions
was disciplined for following the same policy as other Court employees who had reserved
The Court exhaustively excepts to most
of
the ALJ' s findings
of
fact and conclusions
of
law. The Court argues that its e-mail use policy is a reasonable restriction on union access
because there are ample alternate means for AFSCME to communicate with bargaining unit
members. The Court asserts that the ALJ erroneously ignored record evidence that Prescott's
e-mails were disruptive. Further, the Court argues, the ALJ erred in finding its application
of
the e-mail use policy discriminatory because the six e-mails produced by AFSCME at hearing
are insufficient to show that the Court routinely allows employees to send non-union broadcast
e-mails. On the courtroom reservation issue, the Court asserts that it properly applied the
policy for outside organizations to Prescott because she was acting as an agent
of
AFSCME
when she reserved the Department One courtroom for the August 17, 2004 union meeting.
AFSCME's Response to Exceptions	AFSCME's Response to Exceptions
The Court exhaustively excepts to most of the ALJ's findings of fact and conclusions of
8
In response, AFSCME asserts that the Trial Court Act grants unions a presumptive right
of
access to the trial court employer's facilities and e-mail system that may only be limited by
a reasonable rule or regulation. 	AFSCME argues that the Court's evidence failed to show
Prescott's e-mails were disruptive because all e-mails require an employee to at least glance at
them and the Court can ensure that unintended recipients do not receive AFSCME e-mails by
reviewing AFSCME's e-mail groups in advance. AFSCME further argues that the Court
applied its e-mail use policy to Prescott in a discriminatory manner because the Court allows
employees to send non-union broadcast e-mails and the Court itself sends anti-union emails to
all employees. As for the courtroom reservation issue, AFSCME argues that it was
discriminatory for the Court to apply the outside organization policy to Prescott because there
In response, AFSCME asserts that the Trial Court Act grants unions a presumptive right
8
courtrooms for non-union events such as baby showers and birthday parties.
law. The Court argues that its e-mail use policy is a reasonable restriction on union access
because there are ample alternate means for AFSCME to communicate with bargaining unit
members. The Court asserts that the ALJ erroneously ignored record evidence that Prescott's
e-mails were disruptive. Further, the Court argues, the ALJ erred in finding its application of
the e-mail use policy discriminatory because the six e-mails produced by AFSCME at hearing
are insufficient to show that the Court routinely allows employees to send non-union broadcast
e-mails. On the courtroom reservation issue, the Court asserts that it properly applied the
policy for outside organizations to Prescott because she was acting as an agent of AFSCME
when she reserved the Department One courtroom for the August 17, 2004 union meeting.
of access to the trial court employer's facilities and e-mail system that may only be limited by
a reasonable rule or regulation. AFSCME argues that the Court's evidence failed to show
Prescott's e-mails were disruptive because all e-mails require an employee to at least glance at
them and the Court can ensure that unintended recipients do not receive AFSCME e-mails by
reviewing AFSCME's e-mail groups in advance. AFSCME further argues that the Court
applied its e-mail use policy to Prescott in a discriminatory manner because the Court allows
employees to send non-union broadcast e-mails and the Court itself sends anti-union emails to
all employees. As for the courtroom reservation issue, AFSCME argues that it was
discriminatory for the Court to apply the outside organization policy to Prescott because there

was no evidence the Court had ever previously required an employee to follow that policy to
reserve a courtroom for a non-Court business purpose.
DISCUSSION	DISCUSSION
was no evidence the Court had ever previously required an employee to follow that policy to
E-mail Use Policy
Both the Educational Employment Relations Act (EERA)	Both the Educational Employment Relations Act (EERA)"4 and the Higher Education
Employer-Employee Relations Act (HEERA)
and the Higher Education
5 explicitly grant recognized employee
organizations a right of access to the employer's "bulletin boards, mailboxes, and other means
of communication." (EERA sec. 3543.l(b); HEERA sec. 3568.) In the absence of similar
statutory language, PERB has declined to recognize a right of access to the employer's internal
means of communication under the Ralph C. Dills Act (Dills Act)6
xplicitly grant recognized employee
but nonetheless has found
that such access may be required under certain circumstances. (State of California
(Department of Personnel Administration, et al.) (1998) PERB Decision No. 1279-S (State of
California (DP A).) PERB has not addressed union access to internal means of communication
under the other statutes it administers, all of which, like the Dills Act, are silent on the subject.
Here, because the Court has adopted a local rule governing union access to its electronic
communications systems,7
t nonetheless has found
the Board need not decide whether a right of access exists under the
4
e Board need not decide whether a right of access exists under the
EERA is codified at Government Code section 3540 et seq.	ERA is codified at Government Code section 3540 et seq.
5HEERA is codified at Government Code section 3560 et seq.	HEERA is codified at Government Code section 3560 et seq.
6The Dills Act is codified at Government Code section 3 512 et seq.
7
he Dills Act is codified at Government Code section 3512 et seq.
The Trial Court Act allows a trial court employer to adopt its own rules governing
union access to its internal means of communication. Section 71636(a) of the Trial Court Act
states, in relevant part:
A trial court may adopt reasonable rules and regulations, after
consultation in good faith with representatives of a recognized
employee organization or organizations, for the administration of
employer-employee relations under this article. These rules and
regulations may include provisions for:
he Trial Court Act allows a trial court employer to adopt its own rules governing
A trial court may adopt reasonable rules and regulations, after
consultation in good faith with representatives of a recognized
employee organization or organizations, for the administration of
employer-employee relations under this article. These rules and
egulations may include provisions for:
9
E-mail Use Policy
bu
th
E
T
r
reserve a courtroom for a non-Court business purpose.
Employer-Employee Relations Act (HEERA)
organizations a right of access to the employer's "bulletin boards, mailboxes, and other means
of communication." (EERA sec. 3543.1(b); HEERA sec. 3568.) In the absence of similar
statutory language, PERB has declined to recognize a right of access to the employer's internal
means of communication under the Ralph C. Dills Act (Dills Act)
that such access may be required under certain circumstances. (State of California
(Department of Personnel Administration, et al.) (1998) PERB Decision No. 1279-S (State of
California (DPA).) PERB has not addressed union access to internal means of communication
under the other statutes it administers, all of which, like the Dills Act, are silent on the subject.
Here, because the Court has adopted a local rule governing union access to its electronic
communications systems,'
union access to its internal means of communication. Section 71636(a) of the Trial Court Act
states, in relevant part:
e
S
"T

Trial Court Act to resolve the issues before it. Accordingly, we leave the general right
of
access question for another day.
Furthermore, the Board need not determine whether the Court's e-mail use policy is
reasonable to decide this case. Neither the charge nor the complaint alleged that the Court's
e-mail use policy was unlawful on its face. 	Rather, the charge alleged that "[t]he Court
continues to exhibit a pattern and practice
of
discriminatory enforcement
of
Court policy and
discipline." (Emphasis added.) Likewise, the complaint alleged that the Court interfered with
Prescott's rights under the Trial Court Act by threatening to discipline her for violating the
Court's e-mail policy. Thus, the only issue before the Board is whether the Court applied its
e-mail use policy to Prescott in a discriminatory manner.
Trial Court Act to resolve the issues before it. Accordingly, we leave the general right of
Furthermore, the Board need not determine whether the Court's e-mail use policy is
reasonable to decide this case. Neither the charge nor the complaint alleged that the Court's
e-mail use policy was unlawful on its face. Rather, the charge alleged that "[the Court
continues to exhibit a pattern and practice of discriminatory enforcement of Court policy and
discipline." (Emphasis added.) Likewise, the complaint alleged that the Court interfered with
Prescott's rights under the Trial Court Act by threatening to discipline her for violating the
Court's e-mail policy. Thus, the only issue before the Board is whether the Court applied its
e-mail use policy to Prescott in a discriminatory manner.
Unalleged Violation	Unalleged Violation
Before addressing the Court's application
of
its e-mail use policy to Prescott, we must
first determine the proper legal standard under which to analyze the Court's action. The
complaint alleged that the Court's threatened discipline
of
Prescott for violating its e-mail use
policy interfered with both Prescott's and AFSCME's rights under the Trial Court Act. As a
result, the ALJ examined Prescott's discipline for e-mail use under PERB's interference
standard. However, when a charge alleges that the employer took adverse action against an
employee because
of
the employee's protected activity, PERB has uniformly applied a
discrimination standard. (See Rancho Santiago Community College District (1986) PERB
Decision No. 602 (Rancho Santiago) [finding that applying a discrimination standard is
appropriate "where an employer not only interferes with the exercise of employee rights, but
Before addressing the Court's application of its e-mail use policy to Prescott, we must
(7)	(7) Use of official bulletin boards and other means of communication
by employee organizations.
Use of official bulletin boards and other means of communication
by employee organizations.
While the Court's e-mail use policy does not pertain solely to union access, it
nonetheless regulates AFSCME's access to the Court's e-mail system and was adopted after
negotiations with employee organizations representing the Court's employees. Therefore, it
constitutes a local rule governing union access pursuant to Trial Court Act section 71636(a)(7).
10
While the Court's e-mail use policy does not pertain solely to union access, it
access question for another day.
first determine the proper legal standard under which to analyze the Court's action. The
complaint alleged that the Court's threatened discipline of Prescott for violating its e-mail use
policy interfered with both Prescott's and AFSCME's rights under the Trial Court Act. As a
result, the ALJ examined Prescott's discipline for e-mail use under PERB's interference
standard. However, when a charge alleges that the employer took adverse action against an
employee because of the employee's protected activity, PERB has uniformly applied a
discrimination standard. (See Rancho Santiago Community College District (1986) PERB
Decision No. 602 (Rancho Santiago) [finding that applying a discrimination standard is
appropriate "where an employer not only interferes with the exercise of employee rights, but
nonetheless regulates AFSCME's access to the Court's e-mail system and was adopted after
negotiations with employee organizations representing the Court's employees. Therefore, it
constitutes a local rule governing union access pursuant to Trial Court Act section 71636(a)(7).

takes adverse personnel action against an employee because
of
the exercise
of
those rights"].)
Here, the charge alleged that the Court took adverse action against Prescott because she used the
Court's e-mail system to send e-mails containing union content. Therefore, the allegation
involving Prescott's e-mail use is properly analyzed as a discrimination claim.
However, because the complaint alleged this
as
an interference claim, the Board can only
address the Court's conduct under the discrimination standard
if
it meets the test for an unalleged
violation. The Board may only consider an unalleged violation when: "(1) adequate notice and
opportunity to defend has been provided the respondent; (2) the acts are intimately related to the
subject matter
of
the complaint and are part
of
the same course
of
conduct; (3) the unalleged
violation has been fully litigated; and (4) the parties have had the opportunity to examine and be
cross-examined on this issue." (Fresno County Superior Court (2008) PERB Decision
No. 1942-C.) The alleged violation also must have occurred within the applicable statute
of
limitations period. (Id.) For the following reasons, we find that the Board may consider the
unalleged discrimination violation in this case.
takes adverse personnel action against an employee because of the exercise of those rights"].)
However, because the complaint alleged this as an interference claim, the Board can only
address the Court's conduct under the discrimination standard if it meets the test for an unalleged
violation. The Board may only consider an unalleged violation when: "(1) adequate notice and
opportunity to defend has been provided the respondent; (2) the acts are intimately related to the
subject matter of the complaint and are part of the same course of conduct; (3) the unalleged
violation has been fully litigated; and (4) the parties have had the opportunity to examine and be
cross-examined on this issue." (Fresno County Superior Court (2008) PERB Decision
No. 1942-C.) The alleged violation also must have occurred within the applicable statute of
limitations period. (Id.) For the following reasons, we find that the Board may consider the
unalleged discrimination violation in this case.
Though the complaint did not allege discrimination regarding e-mail use, the Court had
adequate notice and opportunity to defend a discrimination allegation. In his opening statement,
AFSCME's attorney stated that the City discriminated against Prescott for her union activities by
suspending her. The Court did not object to this characterization and indeed proceeded to argue
and present evidence that it did not act in a discriminatory manner. AFSCME argued both
interference and discrimination in its post-hearing brief. Again, the Court did not object and, in
fact, devoted two and one-half pages of its post-hearing brief to arguing that "Prescott Was Not
Retaliated Against For Engaging In Protected Activity." Finally, the ALJ noted in his proposed
decision that the Court defended "against both allegations on the alternative grounds of
discrimination and interference." The Court did not except to this statement. Accordingly, the
Court has waived its right to assert that it did not have adequate notice and opportunity to defend
11
Though the complaint did not allege discrimination regarding e-mail use, the Court had
11
Here, the charge alleged that the Court took adverse action against Prescott because she used the
Court's e-mail system to send e-mails containing union content. Therefore, the allegation
involving Prescott's e-mail use is properly analyzed as a discrimination claim.
adequate notice and opportunity to defend a discrimination allegation. In his opening statement,
AFSCME's attorney stated that the City discriminated against Prescott for her union activities by
suspending her. The Court did not object to this characterization and indeed proceeded to argue
and present evidence that it did not act in a discriminatory manner. AFSCME argued both
interference and discrimination in its post-hearing brief. Again, the Court did not object and, in
fact, devoted two and one-half pages of its post-hearing brief to arguing that "Prescott Was Not
Retaliated Against For Engaging In Protected Activity." Finally, the ALJ noted in his proposed
decision that the Court defended "against both allegations on the alternative grounds of
discrimination and interference." The Court did not except to this statement. Accordingly, the
Court has waived its right to assert that it did not have adequate notice and opportunity to defend

against the discrimination allegation. (Santee Elementary School District (2006) PERB Decision
No. 1822.)
As for the remainder
of
the unalleged violation test, discrimination is merely an alternate
legal theory to be applied to the exact same conduct that gave rise to the interference allegation
in the complaint. The parties presented extensive testimony and evidence regarding the Court's
e-mail use policy and its application to various e-mails introduced by AFSCME as well as to
Prescott's e-mails. Both parties examined and cross-examined witnesses about the policy and its
application. Finally, because both the discrimination and interference allegations arise from the
exact same facts, and the interference allegation was timely, the discrimination allegation is also
timely.
against the discrimination allegation. (Santee Elementary School District (2006) PERB Decision
As for the remainder of the unalleged violation test, discrimination is merely an alternate
legal theory to be applied to the exact same conduct that gave rise to the interference allegation
in the complaint. The parties presented extensive testimony and evidence regarding the Court's
e-mail use policy and its application to various e-mails introduced by AFSCME as well as to
Prescott's e-mails. Both parties examined and cross-examined witnesses about the policy and its
application. Finally, because both the discrimination and interference allegations arise from the
exact same facts, and the interference allegation was timely, the discrimination allegation is also
timely.
Discrimination	Discrimination
To establish a prima facie case
of
discrimination in violation
of
Trial Court Act section
71635.1 and PERB Regulation 32606(a),8
To establish a prima facie case of discrimination in violation of Trial Court Act section
AFSCME must show that: (1) Prescott exercised
rights under the Trial Court Act; (2) the Court had knowledge
of
the exercise
of
those rights;
and (3) the Court imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained, or coerced Prescott because
of
her
exercise
of
those rights. (Campbell Municipal Employees Assn. v. City
of
Campbell (1982)
131
Cal.App.3d 416 [ 182 Cal.Rptr. 461]; San Leandro Police Officers Assn. v. City
of
San Leandro (1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856].)9
AFSCME must show that: (1) Prescott exercised
rights under the Trial Court Act; (2) the Court had knowledge of the exercise of those rights;
and (3) the Court imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained, or coerced Prescott because of her
exercise of those rights. (Campbell Municipal Employees Assn. v. City of Campbell (1982)
131 Cal.App.3d 416 [182 Cal.Rptr. 461]; San Leandro Police Officers Assn. v. City of
San Leandro (1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856].)
8PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
9
ERB regulations are codified at California Code of Regulations, title 8, section 31001
When interpreting the Trial Court Act, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act (NLRA) and California labor relations statutes
with parallel provisions. (Trial Court Act sec. 71639.3; Fire Fighters Union v. City of Vallejo
(1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)
12
hen interpreting the Trial Court Act, it is appropriate to take guidance from cases
"
'
'P
W
12
No. 1822.)
71635.1 and PERB Regulation 32606(a),
et seq.
interpreting the National Labor Relations Act (NLRA) and California labor relations statutes
with parallel provisions. (Trial Court Act sec. 71639.3; Fire Fighters Union v. City of Vallejo
(1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)

Protected Activity	Protected Activity
The unfair practice charge alleged that Prescott engaged in protected activity by
sending four e-mails regarding union matters to members
of
her bargaining unit. An
employee's speech is protected
if
it is "related to matters
of
legitimate concern to the employees
as employees so as to come within the right to participate in the activities
of
an employee
organization for the purpose ofrepresentation on matters
of
employer-employee relations."
(Rancho Santiago.) At the same time, an employer may limit employees' non-business use
of
its
e-mail system without committing an unfair practice as long as the limitation does not
discriminate along union lines. As the following cases demonstrate, union e-mails that violate an
employer's lawful restriction on non-business e-mail use do not constitute protected activity.
In State
of
California (DPA), PERB addressed employee use
of
an employer's e-mail
system to send union business e-mails. In that case, the employer allowed "incidental and
minimal" use
of
its e-mail system for non-business communications but prohibited employees
from using its system to send union business e-mails. The Board reasoned that once an
employer has opened its e-mail system to a certain level
of
non-business use, "it cannot
prohibit employees from using the same forum for a similar level
of
communication involving
employee organization activities." The Board then held that because the employer's policy
discriminated among e-mails within the permissible range based solely on union content, the
policy interfered with employees' protected rights. In so holding, the Board implicitly found
that sending "incidental and minimal" union business e-mails was protected activity.
13
In State of California (DPA), PERB addressed employee use of an employer's e-mail
system to send union business e-mails. In that case, the employer allowed "incidental and
minimal" use of its e-mail system for non-business communications but prohibited employees
from using its system to send union business e-mails. The Board reasoned that once an
employer has opened its e-mail system to a certain level of non-business use, "it cannot
prohibit employees from using the same forum for a similar level of communication involving
employee organization activities." The Board then held that because the employer's policy
discriminated among e-mails within the permissible range based solely on union content, the
policy interfered with employees' protected rights. In so holding, the Board implicitly found
that sending "incidental and minimal" union business e-mails was protected activity.
The unfair practice charge alleged that Prescott engaged in protected activity by
However, the Board also found that the employer was not required to allow employees to use
its e-mail system to send "regular and voluminous messages about Union business" because it
had never allowed such use. 	Thus, any e-mails that fell outside of the permissible range were
not protected activity and could be prohibited by the employer without violating the Dills Act.
13
However, the Board also found that the employer was not required to allow employees to use
sending four e-mails regarding union matters to members of her bargaining unit. An
employee's speech is protected if it is "related to matters of legitimate concern to the employees
as employees so as to come within the right to participate in the activities of an employee
organization for the purpose of representation on matters of employer-employee relations."
(Rancho Santiago.) At the same time, an employer may limit employees' non-business use of its
e-mail system without committing an unfair practice as long as the limitation does not
discriminate along union lines. As the following cases demonstrate, union e-mails that violate an
employer's lawful restriction on non-business e-mail use do not constitute protected activity.
its e-mail system to send "regular and voluminous messages about Union business" because it
had never allowed such use. Thus, any e-mails that fell outside of the permissible range were
not protected activity and could be prohibited by the employer without violating the Dills Act.

The National Labor Relations Board (NLRB) adopted a similar approach in its recent
decision in The Register-Guard (2007) 351 NLRB No. 70 [183 LRRM 1113] (Register-Guard).
That case involved an employee who, like Prescott, was disciplined by her employer for using
its e-mail system to send union business e-mails. (Id., at pp. *2-3.) The employer's policy
prohibited using its e-mail system to send "non-job-related solicitations." (Id., at p. *7 .) After
observing that "unlawful discrimination consists
of
disparate treatment
of
activities or
communications
of
a similar character because
of
their union or other Section 7-protected
status," the Board examined whether the employer applied its policy in a discriminatory
manner to each
of
the three e-mails for which the employee was disciplined.
10
The National Labor Relations Board (NLRB) adopted a similar approach in its recent
(Id., at p. *9,
emphasis added.)
The employee's first e-mail clarified facts surrounding a union rally the day before.
(Id., at p. * 10.) The Board found this was not a solicitation but instead fell within the
permissible range
of
non-business e-mail use allowed by the employer. 	(Id., at
pp. * 10-11.) As a result, the Board found the e-mail was protected activity. (Id., at
p. * 11.) Thus, because the employer disciplined the employee for sending that e-mail based
solely on its union content, the discipline violated the NLRA. (Ibid.)
(Id., at p. *9,
The employee's first e-mail clarified facts surrounding a union rally the day before.
(Id., at p. *10.) The Board found this was not a solicitation but instead fell within the
permissible range of non-business e-mail use allowed by the employer. (Id., at
pp. *10-11.) As a result, the Board found the e-mail was protected activity. (Id., at
p. *11.) Thus, because the employer disciplined the employee for sending that e-mail based
solely on its union content, the discipline violated the NLRA. (Ibid.)
emphasis added.)
The employee's second and third e-mails asked employees to wear green to support the
union and to participate in the union's entry in a local parade, respectively. (Id., at p. *10.)
The Board found these e-mails constituted solicitations prohibited by the employer's policy
and therefore they were not protected activity. (Id., at p. * 11.) Consequently, the employer's
discipline
of
the employee for sending those e-mails was lawful under the NLRA. 	(Ibid.)
Taken together, State
of
California (DPA) and Register-Guard require us to engage in a
two-part analysis to determine whether the e-mails for which Prescott was disciplined
The employee's second and third e-mails asked employees to wear green to support the
Taken together, State of California (DPA) and Register-Guard require us to engage in a
two-part analysis to determine whether the e-mails for which Prescott was disciplined
1 Before conducting its "as applied" analysis, the Board found the policy did not violate
the NLRA on its face because the policy's language did not discriminate among
e-mails based on union content. (Id., at p. *7.)
14
efore conducting its "as applied" analysis, the Board found the policy did not violate
d."
and there
"B
14
decision in The Register-Guard (2007) 351 NLRB No. 70 [183 LRRM 1113] (Register-Guard).
That case involved an employee who, like Prescott, was disciplined by her employer for using
its e-mail system to send union business e-mails. (Id., at pp. *2-3.) The employer's policy
prohibited using its e-mail system to send "non-job-related solicitations." (Id., at p. *7.) After
observing that "unlawful discrimination consists of disparate treatment of activities or
communications of a similar character because of their union or other Section 7-protected
status," the Board examined whether the employer applied its policy in a discriminatory
manner to each of the three e-mails for which the employee was discipline
union and to participate in the union's entry in a local parade, respectively. (Id., at p. *10.)
The Board found these e-mails constituted solicitations prohibited by the employer's policy
fore they were not protected activity. (Id., at p. $11.) Consequently, the employer's
discipline of the employee for sending those e-mails was lawful under the NLRA. (Ibid.)
the NLRA on its face because the policy's language did not discriminate among
e-mails based on union content. (Id., at p. *7.)

constituted protected activity under the Trial Court Act. First, we must establish the extent
of
permissible non-business e-mail use under the Court's e-mail use policy. Then we must
determine whether each
of
Prescott's e-mails fell within the range
of
permissible use and was
therefore protected activity.
The Court's e-mail use policy prohibits use
of
the Court's e-mail system "in a manner
or to a degree that
is
disruptive or detrimental to the Court or to the employee's performance."
The policy does not define "disruptive or detrimental" but the Court's witnesses testified that
the policy is primarily aimed at preventing employees from sending broadcast e-mails to large
groups ofrecipients.
constituted protected activity under the Trial Court Act. First, we must establish the extent of
The Court's e-mail use policy prohibits use of the Court's e-mail system "in a manner
or to a degree that is disruptive or detrimental to the Court or to the employee's performance."
The policy does not define "disruptive or detrimental" but the Court's witnesses testified that
the policy is primarily aimed at preventing employees from sending broadcast e-mails to large
groups of recipients.
11
Because
of
the policy's ambiguity, we must examine the six e-mails
introduced into the record by AFSCME to determine what constitutes permissible non-business
e-mail use under the policy.
Judge's E-mail	Judge's E-mail
ecause of the policy's ambiguity, we must examine the six e-mails
On October 29, 2003, one
of
the Court's judges sent an e-mail to all Court staff urging
support for a fellow judge who had been nominated to the United States Court
of
Appeals for
the Ninth Circuit. According to the record, judges are not considered employees
of
the Court
and therefore are not subject to the Court's e-mail use policy. For this reason, the judge's
e-mail is irrelevant in determining the extent
of
permissible non-business use under the policy.
Court Executive Officer's E-mail
On October 29, 2003, one of the Court's judges sent an e-mail to all Court staff urging
On July 16, 2004, the Court's Executive Officer/Clerk John Clarke (Clarke) sent an
e-mail to all Court staff containing an update on contract negotiations between AFSCME and
the Court. Clarke sent this e-mail in his capacity as an agent
of
the Court, not as an individual
employee, and it addressed subjects of concern to Court employees. Accordingly, the e-mail
was official Court business not subject to the Court's e-mail use policy. 	Clarke's e-mail
11
On July 16, 2004, the Court's Executive Officer/Clerk John Clarke (Clarke) sent an
The policy provides no guidelines for administrators to use in determining what
constitutes "disruptive or detrimental" e-mail use nor does it provide clear guidance to
employees about what type of e-mails would subject them to discipline under the policy.
15
he policy provides no guidelines for administrators to use in determining what
therefore protected activity.
" B
Court Executive Officer's E-mail
"T
15
permissible non-business e-mail use under the Court's e-mail use policy. Then we must
determine whether each of Prescott's e-mails fell within the range of permissible use and was
introduced into the record by AFSCME to determine what constitutes permissible non-business
e-mail use under the policy.
support for a fellow judge who had been nominated to the United States Court of Appeals for
the Ninth Circuit. According to the record, judges are not considered employees of the Court
and therefore are not subject to the Court's e-mail use policy. For this reason, the judge's
e-mail is irrelevant in determining the extent of permissible non-business use under the policy.
e-mail to all Court staff containing an update on contract negotiations between AFSCME and
the Court. Clarke sent this e-mail in his capacity as an agent of the Court, not as an individual
employee, and it addressed subjects of concern to Court employees. Accordingly, the e-mail
was official Court business not subject to the Court's e-mail use policy. Clarke's e-mail
constitutes "disruptive or detrimental" e-mail use nor does it provide clear guidance to
employees about what type of e-mails would subject them to discipline under the policy.

therefore is
of
no use in establishing the extent
of
permissible non-business e-mail use under
the policy.
E-mails Sent by Court Employees
therefore is of no use in establishing the extent of permissible non-business e-mail use under
E-mails Sent by Court Employees
the policy.
On November
1,
2004, an employee at the Pomona North Courthouse sent an
e-mail to all staff at that courthouse asking
if
anyone had a play pen for sale. The employee
was verbally counseled by her supervisor that this e-mail violated the Court's
e-mail use policy.	e-mail use policy. 12
On November 1, 2004, an employee at the Pomona North Courthouse sent an
On November 22, 2004, another employee sent an e-mail to all Court
employees countywide asking
if
anyone would adopt two dogs. This employee was also
verbally counseled that her e-mail violated the Court's e-mail use policy.
On February 25, 2005, an employee sent an e-mail to all courtroom assistants in the
Mosk Courthouse announcing the birth
of
a baby boy to one
of
the employees. On June 15,
2005, another employee sent an e-mail to the same group
of
employees regarding an employee
birthday party. Neither
of
the employees who sent these e-mails were disciplined.
n November 22, 2004, another employee sent an e-mail to all Court
On February 25, 2005, an employee sent an e-mail to all courtroom assistants in the
Mosk Courthouse announcing the birth of a baby boy to one of the employees. On June 15,
2005, another employee sent an e-mail to the same group of employees regarding an employee
birthday party. Neither of the employees who sent these e-mails were disciplined. "
13
12Verbal counseling is the first step in the Court's progressive discipline process.	Verbal counseling is the first step in the Court's progressive discipline process.
13
The Court argues that the birth announcement and birthday party e-mails were not
subject to the e-mail use policy. 	Specifically, the Court contends that the e-mails were "Court
business" because they "promote[
d]
camaraderie and team spirit, which, in the view
of
Court
management, boosts employee morale and employee productivity." In State
of
California
(DPA), the State argued that e-mails soliciting athletic club memberships and blood bank
donations, announcing an employee club bicycle ride, and even announcing the sale
of
Girl
Scout cookies were "part of the corporate culture and therefore State business." The Board
rejected this argument, finding no reason why these e-mails but not those about collective
bargaining would constitute State business. Similarly, we see no reason why an e-mail
announcing a union meeting should be treated any differently than e-mails announcing birth
and birthday parties. Therefore, we find that the birth announcement and birthday party
e-mails were subject to the Court's e-mail use policy and therefore can be considered in
establishing the policy's parameters.
s
16
e Court argues that the birth announcement and birthday party e-mails were not
" O
3
12
establishing the policy's parameters.
Th
16
e-mail to all staff at that courthouse asking if anyone had a play pen for sale. The employee
was verbally counseled by her supervisor that this e-mail violated the Court's
employees countywide asking if anyone would adopt two dogs. This employee was also
verbally counseled that her e-mail violated the Court's e-mail use policy.
subject to the e-mail use policy. Specifically, the Court contends that the e-mails were "Court
business" because they "promote[d] camaraderie and team spirit, which, in the view of Court
management, boosts employee morale and employee productivity." In State of California
(DPA), the State argued that e-mails soliciting athletic club memberships and blood bank
donations, announcing an employee club bicycle ride, and even announcing the sale of Girl
Scout cookies were "part of the corporate culture and therefore State business." The Board
rejected this argument, finding no reason why these e-mails but not those about collective
bargaining would constitute State business. Similarly, we see no reason why an e-mail
announcing a union meeting should be treated any differently than e-mails announcing births
and birthday parties. Therefore, we find that the birth announcement and birthday party
e-mails were subject to the Court's e-mail use policy and therefore can be considered in

Based on these four e-mails, it appears that the Court allows employees to send non-
business e-mails to a small group
of
employees at a single location but not to all staff
at
a
single location or to all Court staff countywide.14
Based on these four e-mails, it appears that the Court allows employees to send non-
Thus, we must examine each
of
Prescott's
e-mails to see
if
it was sent to a group larger than that permitted by the e-mail use policy.
15
hus, we must examine each of Prescott's
If
the e-mail falls within the range permitted by the policy, it constitutes protected activity under
the Trial Court Act.
the e-mail falls within the range permitted by the policy, it constitutes protected activity under
f
he Court argues that these four e-mails are insufficient to establish that it tolerated
certain types of non-business e-mail use as a matter of policy. The Court correctly notes that
the evidence here does not approach the large number of non-business e-mails presented in
State of California (DPA). Even so, we find the evidence before us sufficient to establish the
parameters of the Court's e-mail use policy, especially in light of both parties' failure to
present additional e-mails to the ALJ.
TThe Court argues that these four e-mails are insufficient to establish that it tolerated
certain types
of
non-business e-mail use as a matter
of
policy. The Court correctly notes that
the evidence here does not approach the large number
of
non-business e-mails presented in
State
of
California (DP A). Even so, we find the evidence before us sufficient to establish the
parameters
of
the Court's e-mail use policy, especially in light
of
both parties' failure to
present additional e-mails to the ALJ.
15
AFSCME argues that once the Court allowed Clarke's broadcast e-mail regarding
egotiations, the Court could no longer prohibit broadcast e-mails by AFSCME
members about labor relations issues. The Court is not required to provide AFSCME "equal
time" use
of
its e-mail system under such circumstances. PERB has held that California public
sector labor relations statutes provide employer free speech rights identical to those found in
the NLRA. 	(City
of
Fresno (2006) PERB Decision No. 1841-M; Rio Hondo Community
College District (1980) PERB Decision No. 128.) Interpreting the federal Act, the United
States Supreme Court has found that unions "are not entitled to use a medium
of
communication simply because the employer is using it" to state its position on labor relations
issues unless the union can show that it has no effective alternate means
of
communicating its
position to employees. (NLRB v. United Steelworkers
of
America (1958) 357 U.S. 357, 364
[78 S. Ct. 1268].) In that case, the Court held the employer was not required to grant the union
an exemption to its no-solicitation policy so that the union could counter the employer's anti-
union statements via the same means of communication, particularly when the union failed to
show that it had no other way to effectively communicate its position to employees. (Id., at pp.
362-363.) Here, the record is replete with evidence that AFSCME had ample alternate means
of communicating with Court employees, such as e-mail between union stewards and
individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and
a telephone hotline and website where members could obtain information about bargaining and
upcoming meetings. Indeed, the Court even allowed AFSCME to send broadcast e-mails into
its system from the outside. In light of this evidence, the Court was not required to grant
AFSCME an exemption from its e-mail use policy so that the union could state its position on
labor relations issues via internally-generated broadcast e-mail as the Court had done.
contract n
17
FSCME argues that once the Court allowed Clarke's broadcast e-mail regarding
time" use of its e-mail system under such circumstances. PERB has held that California public
sector labor relations statutes provide employer free speech rights identical to those found in
the NLRA. (City of Fresno (2006) PERB Decision No. 1841-M; Rio Hondo Community
College District (1980) PERB Decision No. 128.) Interpreting the federal Act, the United
States Supreme Court has found that unions "are not entitled to use a medium of
communication simply because the employer is using it" to state its position on labor relations
issues unless the union can show that it has no effective alternate means of communicating its
* T
"A
show that it had no other way to effectively communicate its position to employees. (Id., at pp.
17
business e-mails to a small group of employees at a single location but not to all staff at a
single location or to all Court staff countywide."
e-mails to see if it was sent to a group larger than that permitted by the e-mail use polic
the Trial Court Act.
contract negotiations, the Court could no longer prohibit broadcast e-mails by AFSCME
members about labor relations issues. The Court is not required to provide AFSCME "equal
position to employees. (NLRB v. United Steelworkers of America (1958) 357 U.S. 357, 364
[78 S. Ct. 1268].) In that case, the Court held the employer was not required to grant the union
an exemption to its no-solicitation policy so that the union could counter the employer's anti-
union statements via the same means of communication, particularly when the union failed to
362-363.) Here, the record is replete with evidence that AFSCME had ample alternate means
of communicating with Court employees, such as e-mail between union stewards and
individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and
a telephone hotline and website where members could obtain information about bargaining and
upcoming meetings. Indeed, the Court even allowed AFSCME to send broadcast e-mails into
its system from the outside. In light of this evidence, the Court was not required to grant
AFSCME an exemption from its e-mail use policy so that the union could state its position on
labor relations issues via internally-generated broadcast e-mail as the Court had done.
y. I

Prescott sent her August 13, September
17
and November
1,
2004 e-mails to all
bargaining unit members countywide. These e-mails were broadcast e-mails prohibited by the
Court's e-mail use policy and therefore were not protected activity. As a result, the Court's
discipline
of
Prescott for sending these three e-mails was lawful under the Trial Court Act.
We reach a different conclusion regarding Prescott's August 12, 2004 e-mail. Prescott
sent that e-mail, announcing the August
17
lunchtime union meeting, to the approximately
55
court clerks in the Mosk Courthouse. Because it was sent to a small group
of
employees at a
single location, this e-mail was within the range
of
permissible non-business e-mail use under
the Court's policy. Thus, the August
12
e-mail was protected activity. Further, it is clear that
the Court had knowledge
of
Prescott's protected activity because Lough's telephone call to
Prescott on August
13
was the result
of
the Court's discovery
of
her August
12
e-mail.
Prescott sent her August 13, September 17 and November 1, 2004 e-mails to all
We reach a different conclusion regarding Prescott's August 12, 2004 e-mail. Prescott
sent that e-mail, announcing the August 17 lunchtime union meeting, to the approximately 55
court clerks in the Mosk Courthouse. Because it was sent to a small group of employees at a
single location, this e-mail was within the range of permissible non-business e-mail use under
the Court's policy. Thus, the August 12 e-mail was protected activity. Further, it is clear that
the Court had knowledge of Prescott's protected activity because Lough's telephone call to
Prescott on August 13 was the result of the Court's discovery of her August 12 e-mail.
18
Adverse Action	Adverse Action
The unfair practice charge alleged that the Court took adverse action against Prescott by
notifying her
of
its intent to suspend her for five days without pay. "[U]nequivocal notice
of
the employer's intent to impose discipline is an adverse action." (County
of
Merced (2008)
PERB Decision No. 1975-M.) Thus, the Court's November 17, 2004, notice
of
intent to
suspend Prescott constituted an adverse action. Furthermore, the January 21, 2005, letter
informing her
of
the Court's final decision to suspend her for three days without pay also
constituted an adverse action. (See Regents
of
the University
of
California (1983) PERB
Decision No. 310-H [suspension is an adverse action].)
Nexus	Nexus
The unfair practice charge alleged that the Court took adverse action against Prescott by
To show that an adverse action was taken because of the employee's engagement in
protected activity, the charging party must establish a nexus between the adverse action and the
protected activity. In other words, AFSCME must prove that the Court acted with
discriminatory intent in disciplining Prescott for sending the August 12, 2004 e-mail. "PERB
18
To show that an adverse action was taken because of the employee's engagement in
bargaining unit members countywide. These e-mails were broadcast e-mails prohibited by the
Court's e-mail use policy and therefore were not protected activity. As a result, the Court's
discipline of Prescott for sending these three e-mails was lawful under the Trial Court Act.
notifying her of its intent to suspend her for five days without pay. "[Unequivocal notice of
the employer's intent to impose discipline is an adverse action." (County of Merced (2008)
PERB Decision No. 1975-M.) Thus, the Court's November 17, 2004, notice of intent to
suspend Prescott constituted an adverse action. Furthermore, the January 21, 2005, letter
informing her of the Court's final decision to suspend her for three days without pay also
constituted an adverse action. (See Regents of the University of California (1983) PERB
Decision No. 310-H [suspension is an adverse action].)
protected activity, the charging party must establish a nexus between the adverse action and the
protected activity. In other words, AFSCME must prove that the Court acted with
discriminatory intent in disciplining Prescott for sending the August 12, 2004 e-mail. "PERB

has long recognized that direct evidence
of
discriminatory intent - the proverbial 'smoking
gun' - is rarely possible." (Berkeley Unified School District (2003) PERB Decision No. 1538
(Berkeley).) However, this is one
of
those rare cases where direct evidence
of
discriminatory
intent exists.
On November 17, 2004, the Court presented Prescott with written notice
of
its intent to
suspend her for five days, in part for violating the Court's e-mail use policy by sending the
August 12, 2004 union meeting e-mail. The notice stated: "Ms. Prescott, it is inappropriate
for you to use the Court's computer system to conduct union business." This statement
indicates that the Court considered the August
12
e-mail to be a violation
of
its e-mail use
policy because
of
its union content. Therefore, the Court admittedly disciplined Prescott
because
of
her protected activity
of
sending the August
12
e-mail.
has long recognized that direct evidence of discriminatory intent - the proverbial 'smoking
On November 17, 2004, the Court presented Prescott with written notice of its intent to
suspend her for five days, in part for violating the Court's e-mail use policy by sending the
August 12, 2004 union meeting e-mail. The notice stated: "Ms. Prescott, it is inappropriate
for you to use the Court's computer system to conduct union business." This statement
indicates that the Court considered the August 12 e-mail to be a violation of its e-mail use
policy because of its union content. Therefore, the Court admittedly disciplined Prescott
because of her protected activity of sending the August 12 e-mail
16
This constitutes direct
evidence
of
the Court's discriminatory intent and is sufficient in itself to establish the required
nexus between Prescott's suspension and her protected activity. (Berkeley.) Consequently,
AFSCME has established a prima facie case
of
discrimination.
Courtroom Reservation Policy	Courtroom Reservation Policy
his constitutes direct
The complaint alleged that the Court discriminated against Prescott by threatening to
suspend her for five days for "inappropriate use
of
Court facilities" based on her failure to
make a written request to use a courtroom for a union meeting. The ALJ applied PERB' s
interference standard to this allegation. However, because the complaint alleged adverse
action against Prescott, it is properly analyzed under the discrimination standard. (Rancho
Santiago.) Further, there is no unalleged violation issue here because the allegation was pled
6
The complaint alleged that the Court discriminated against Prescott by threatening to
This is strikingly similar to Register-Guard, where the employer's written warning to
the employee stated "you used the company's e-mail system expressly for the purpose of
conducting Guild business." (Id., at p. *2.) Based on this warning, the Board found that the
employer disciplined the employee because of the union content of her e-mail. (Id., at p. * 11.)
19
his is strikingly similar to Register-Guard, where the employer's written warning to
." T
"T
19
gun' - is rarely possible." (Berkeley Unified School District (2003) PERB Decision No. 1538
(Berkeley).) However, this is one of those rare cases where direct evidence of discriminatory
intent exists.
evidence of the Court's discriminatory intent and is sufficient in itself to establish the required
nexus between Prescott's suspension and her protected activity. (Berkeley.) Consequently,
AFSCME has established a prima facie case of discrimination.
suspend her for five days for "inappropriate use of Court facilities" based on her failure to
make a written request to use a courtroom for a union meeting. The ALJ applied PERB's
interference standard to this allegation. However, because the complaint alleged adverse
action against Prescott, it is properly analyzed under the discrimination standard. (Rancho
Santiago.) Further, there is no unalleged violation issue here because the allegation was pled
the employee stated "you used the company's e-mail system expressly for the purpose of
conducting Guild business." (Id., at p. *2.) Based on this warning, the Board found that the
employer disciplined the employee because of the union content of her e-mail. (Id., at p. *1 1.)

as discrimination in the complaint. Accordingly, we apply discrimination analysis to the
courtroom reservation allegation.
To establish a prima facie case
of
discrimination, AFSCME must establish that Prescott
engaged in protected activity, the Court had knowledge
of
that activity, and the Court
disciplined Prescott because
of
that activity. The unfair practice charge alleged that Prescott
engaged in protected activity by reserving the Department One courtroom for a lunchtime
union meeting on August 17, 2004. The Court disciplined Prescott because in making that
reservation she did not follow its written courtroom reservation policy for outside
organizations. Acting in one's capacity as a union officer is protected activity. (City and
County
of
San Francisco (2004) PERB Decision No. 1664-M.) However, as with Prescott's
e-mails, her reservation
of
the courtroom was protected only
if
it did not violate the Court's
courtroom reservation policy.
as discrimination in the complaint. Accordingly, we apply discrimination analysis to the
To establish a prima facie case of discrimination, AFSCME must establish that Prescott
engaged in protected activity, the Court had knowledge of that activity, and the Court
disciplined Prescott because of that activity. The unfair practice charge alleged that Prescott
engaged in protected activity by reserving the Department One courtroom for a lunchtime
union meeting on August 17, 2004. The Court disciplined Prescott because in making that
reservation she did not follow its written courtroom reservation policy for outside
organizations. Acting in one's capacity as a union officer is protected activity. (City and
County of San Francisco (2004) PERB Decision No. 1664-M.) However, as with Prescott's
e-mails, her reservation of the courtroom was protected only if it did not violate the Court's
courtroom reservation policy.
The record establishes that there were two ways to reserve a courtroom for non-Court
business use. A written policy required outside organizations to obtain prior written
permission from the Court's facilities services department to use a courtroom during non-
business hours. 	Certified employee organizations, however, were required to obtain prior
written approval from human resources or the appropriate district manager. However, when an
employee wished to reserve a courtroom in the courthouse where the employee worked, it was
an unwritten rule that the employee only needed to obtain permission to use the courtroom
from the assigned judge and,
if
the courtroom was not in use at the proposed meeting time,
schedule the courtroom with the court coordinator.
The Court disciplined Prescott for not complying with the written reservation policy
applicable to outside organizations. The Court claims that it applied this policy to Prescott
because in reserving the courtroom for a union meeting she was acting as an agent of
AFSCME. However, the record is devoid of evidence that any employee had previously been
The record establishes that there were two ways to reserve a courtroom for non-Court
The Court disciplined Prescott for not complying with the written reservation policy
applicable to outside organizations. The Court claims that it applied this policy to Prescott
because in reserving the courtroom for a union meeting she was acting as an agent of
AFSCME. However, the record is devoid of evidence that any employee had previously been
20	20
courtroom reservation allegation.
business use. A written policy required outside organizations to obtain prior written
permission from the Court's facilities services department to use a courtroom during non-
business hours. Certified employee organizations, however, were required to obtain prior
written approval from human resources or the appropriate district manager. However, when an
employee wished to reserve a courtroom in the courthouse where the employee worked, it was
an unwritten rule that the employee only needed to obtain permission to use the courtroom
from the assigned judge and, if the courtroom was not in use at the proposed meeting time,
schedule the courtroom with the court coordinator.

e
required to submit a written request to use a courtroom in the courthouse where he or she
worked for a union meeting. Indeed, both Becerra, the Court's labor relations manager and
Prescott's predecessor as AFSCME president, and Sandra Ramey, a courtroom assistant and
member
of
AFSCME Local 3022, testified they had always followed the unwritten reservation
rule in reserving courtrooms in the courthouse where they worked for union meetings.
reservation was protected activity.
e
required to submit a written request to use a courtroom in the courthouse where he or she
Because the Court routinely allowed employees to reserve courtrooms for union meetings
without submitting a written request, Prescott did not violate the Court's reservation policy in
reserving the courtroom for the August 17, 2004 union meeting. Accordingly, Prescott's
reservation was protected activity.
The Court knew
of
Prescott's protected activity because Lough asked Prescott about th
upcoming meeting during their telephone conversation on August 13. As for adverse action,
pursuant to the discussion above, both the Court's notice
of
intent to suspend and the final
notice
of
suspension constituted actions adverse to Prescott.
Because the Court routinely allowed employees to reserve courtrooms for union meetings
The Court knew of Prescott's protected activity because Lough asked Prescott about th
upcoming meeting during their telephone conversation on August 13. As for adverse action,
pursuant to the discussion above, both the Court's notice of intent to suspend and the final
notice of suspension constituted actions adverse to Prescott.
Regarding the nexus between Prescott's protected activity and the adverse action, the
record again contains direct evidence
of
the Court's discriminatory intent in disciplining
Prescott. The November 17, 2004 notice
of
intent to suspend states:	
"It
is also inappropriate
for you to use Court facilities for Union business without prior authorization from Mr. Clarke
or his designee." This indicates the Court disciplined Prescott for her protected activity
of
reserving the Department One courtroom for the August 17, 2004 union meeting. Again, the
Court's written admission standing alone is sufficient to establish a nexus between Prescott's
suspension and her protected activity. AFSCME has therefore established a prima facie case
of
discrimination.
without submitting a written request, Prescott did not violate the Court's reservation policy in
reserving the courtroom for the August 17, 2004 union meeting. Accordingly, Prescott's
"But For" Test
Because AFSCME has established a prima facie case of discrimination, the Court bears
the burden of proving that it would have taken the adverse action even if Prescott had not
"But For" Test
Because AFSCME has established a prima facie case of discrimination, the Court bears
the burden of proving that it would have taken the adverse action even if Prescott had not
Regarding the nexus between Prescott's protected activity and the adverse action, the
21
worked for a union meeting. Indeed, both Becerra, the Court's labor relations manager and
Prescott's predecessor as AFSCME president, and Sandra Ramey, a courtroom assistant and
member of AFSCME Local 3022, testified they had always followed the unwritten reservation
rule in reserving courtrooms in the courthouse where they worked for union meetings.
21
record again contains direct evidence of the Court's discriminatory intent in disciplining
Prescott. The November 17, 2004 notice of intent to suspend states: "It is also inappropriate
for you to use Court facilities for Union business without prior authorization from Mr. Clarke
or his designee." This indicates the Court disciplined Prescott for her protected activity of
reserving the Department One courtroom for the August 17, 2004 union meeting. Again, the
Court's written admission standing alone is sufficient to establish a nexus between Prescott's
suspension and her protected activity. AFSCME has therefore established a prima facie case
of discrimination.

engaged in protected activity. (Novato Unified School District (1982) PERB Decision No.
21
O;
Martori Brothers Distributors
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730
[175 Cal.Rptr. 626] (Martori Brothers); Wright Line (1980) 251 NLRB 1083 [105 LRRM
1169].) Thus, where as here, it appears that the employer's adverse action was motivated by
both valid and invalid reasons, "the question becomes whether the [adverse action] would not
have occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is
"an
affirmative defense which the employer must establish by a preponderance
of
the evidence."
(McPherson
v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293,304 [234
Cal.Rptr. 428].) For the following reasons, we find the Court has established this defense.
The Court's suspension
of
Prescott was "based on 'mixed' conduct, that is, conduct
of
which part is protected and part is unprotected." (Belridge School District (1980) PERB
Decision No. 157 (Belridge).) In mixed conduct cases, the Board must determine what portion
of
the discipline is attributable to the unprotected conduct and therefore lawful. (San Ysidro
School District (1980) PERB Decision No. 134 (San Ysidro).)
If
it is impossible to make that
determination, the entire discipline must be rescinded. (Belridge; San Ysidro.) However, where
it is possible to isolate the discipline imposed for unprotected conduct, the Board must determine
whether the employer would have imposed the same discipline for the unprotected conduct
standing alone as it imposed for the mixed conduct. (See Inglewood Unified School District
(1986) PERB Decision No. 593 [assuming that employee's failure to meet with principal was
unprotected, record did not establish that employer would have imposed the same discipline
based solely on the failure to meet].)
engaged in protected activity. (Novato Unified School District (1982) PERB Decision No. 210;
The Court's suspension of Prescott was "based on "mixed' conduct, that is, conduct of
which part is protected and part is unprotected." (Belridge School District (1980) PERB
Decision No. 157 (Belridge).) In mixed conduct cases, the Board must determine what portion
of the discipline is attributable to the unprotected conduct and therefore lawful. (San Ysidro
School District (1980) PERB Decision No. 134 (San Ysidro).) If it is impossible to make that
determination, the entire discipline must be rescinded. (Belridge; San Ysidro.) However, where
it is possible to isolate the discipline imposed for unprotected conduct, the Board must determine
whether the employer would have imposed the same discipline for the unprotected conduct
standing alone as it imposed for the mixed conduct. (See Inglewood Unified School District
(1986) PERB Decision No. 593 [assuming that employee's failure to meet with principal was
unprotected, record did not establish that employer would have imposed the same discipline
based solely on the failure to meet].)
17
17
Register-Guard was not a mixed conduct case because the employee received two
separate written warnings, one based on protected conduct and one based on unprotected
conduct. (Id., at p. * 11.) Because the discipline for protected conduct was not intertwined
with the discipline for unprotected conduct, the NLRB concluded that it need not conduct a
"but for" analysis regarding the written warning based solely on protected conduct. (Ibid.)
Here, because Prescott's suspension was based on both protected and unprotected activity,
PERB case law requires that we conduct a "but for" analysis. Accordingly, we need not and
22
egister-Guard was not a mixed conduct case because the employee received two
"
"R
PERB case law requires that we conduct a "but for" analysis. Accordingly, we need not and
22
Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730
[175 Cal.Rptr. 626] (Martori Brothers); Wright Line (1980) 251 NLRB 1083 [105 LRRM
1 169].) Thus, where as here, it appears that the employer's adverse action was motivated by
both valid and invalid reasons, "the question becomes whether the [adverse action] would not
have occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is "an
affirmative defense which the employer must establish by a preponderance of the evidence."
McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304 [234
Cal.Rptr. 428].) For the following reasons, we find the Court has established this defense.
separate written warnings, one based on protected conduct and one based on unprotected
conduct. (Id., at p. #11.) Because the discipline for protected conduct was not intertwined
with the discipline for unprotected conduct, the NLRB concluded that it need not conduct a
"but for" analysis regarding the written warning based solely on protected conduct. (Ibid.)
Here, because Prescott's suspension was based on both protected and unprotected activity,

While the Court did not explicitly allocate Prescott's three-day suspension to particular
violations, the record allows us to determine what portion
of
the discipline was based
on
unprotected activity. 	Both Tend and Venhuizen testified that even without the courtroom
policy violation they would have suspended Prescott for her unauthorized e-mail use.
AFSCME did not rebut this testimony. Thus, the suspension was based solely on Prescott's
alleged e-mail use policy violations.
When conducting the "but for" analysis, the proper inquiry is whether the employer's
true motivation for taking the adverse action was the employee's protected activity. 	(Regents
of
the University
of
California (1993) PERB Decision No. 1028-H (Regents
of
the UC).) 	On
the record before us, we cannot find that Prescott's protected August 12, 2004 e-mail was the
true motivation behind her suspension, particularly given the three unprotected broadcast
e-mails for which Prescott was lawfully disciplined. As a result, we find that Prescott would
have been suspended regardless
of
her protected activity
of
sending the August 12 e-mail.
Moreover, PERB has no authority to determine whether a three-day suspension is an
appropriate penalty for Prescott's unprotected conduct
of
sending three unauthorized broadcast
e-mails. (Regents
of
the UC; San Ysidro [PERB has no authority to "review disciplinary
actions unrelated to activity protected by EERA"]
.)
Accordingly, because the Court has met
its burden
of
showing that it would have imposed the same discipline absent Prescott's
protected activity, the complaint and underlying unfair practice charge must be dismissed.
While the Court did not explicitly allocate Prescott's three-day suspension to particular
When conducting the "but for" analysis, the proper inquiry is whether the employer's
true motivation for taking the adverse action was the employee's protected activity. (Regents
of the University of California (1993) PERB Decision No. 1028-H (Regents of the UC).) On
the record before us, we cannot find that Prescott's protected August 12, 2004 e-mail was the
true motivation behind her suspension, particularly given the three unprotected broadcast
e-mails for which Prescott was lawfully disciplined. As a result, we find that Prescott would
have been suspended regardless of her protected activity of sending the August 12 e-mail.
Moreover, PERB has no authority to determine whether a three-day suspension is an
appropriate penalty for Prescott's unprotected conduct of sending three unauthorized broadcast
e-mails. (Regents of the UC; San Ysidro [PERB has no authority to "review disciplinary
actions unrelated to activity protected by EERA"].) Accordingly, because the Court has met
its burden of showing that it would have imposed the same discipline absent Prescott's
protected activity, the complaint and underlying unfair practice charge must be dismissed.
do not decide whether it is appropriate for PERB to dispense with "but for" analysis when
discipline is based solely on protected conduct.
23
do not decide whether it is appropriate for PERB to dispense with "but for" analysis when
23
violations, the record allows us to determine what portion of the discipline was based on
unprotected activity. Both Tend and Venhuizen testified that even without the courtroom
policy violation they would have suspended Prescott for her unauthorized e-mail use.
AFSCME did not rebut this testimony. Thus, the suspension was based solely on Prescott's
alleged e-mail use policy violations.
discipline is based solely on protected conduct.

24
ORDER	ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-2-C are
hereby DISMISSED WITHOUT LEAVE TO AMEND.	hereby DISMISSED WITHOUT LEAVE TO AMEND.
The complaint and underlying unfair practice charge in Case No. LA-CE-2-C are
Members McKeag and Wesley joined in this Decision.	Members Mckeag and Wesley joined in this Decision.
24