Mount San Jacinto Community College District (PERB 2605E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANTHONY G. VASEK,
Charging Party, Case No. LA-CE-5921-E
V. PERB Decision No. 2605
MOUNT SAN JACINTO COMMUNITY December 12, 2018
COLLEGE DISTRICT,
Respondent.

Appearances: Anthony G. Vasek, on his own behalf; Atkinson, Andelson, Loya, Ruud & Romo,
by William A. Diedrich and Paul Z. McGlocklin, Attorneys, for Mount San Jacinto Community
College District.
Before Banks, Winslow, and Krantz, Members.
DECISION

KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Mount San Jacinto Community College District (District)
to the attached proposed decision of an administrative law judge (ALJ). The ALJ found that
the District retaliated against charging party Anthony G. Vasek (Vasek) in violation of the
Educational Employment Relations Act (EERA)! by issuing him a “final formal warning” on
November 7, 2013, for sending an e-mail on November 4, 2013 (November 4 e-mail). The
District asserts that Vasek’s e-mail was not protected by EERA, and that the e-mail in any
event lost its protection because it included threatening language. The District further argues

that its final warning to Vasek concerned only the threating speech contained in his e-mail, was

not directed at the remainder of the text, and accordingly was not issued in retaliation for

' EERA is codified at Government Code section 3540 et seq. All statutory references
herein are to the Government Code, unless otherwise specified.

Vasek’s protected speech. The District also contends the warning was not an adverse action.
Vasek contends that each of the District’s arguments is without merit and urges the Board to
affirm the proposed decision.
We have reviewed the entire record in this matter and considered the parties’ arguments
in light of applicable law. We conclude that the ALJ’s findings of fact are supported by the
record, and we adopt them as the findings of the Board itself. The ALJ’s legal conclusions are
generally well reasoned and in accordance with applicable law, and we affirm the proposed
decision, supplemented by the following discussion. In that discussion, we clarify the
appropriate test applicable in cases involving allegedly threatening speech.
BACKGROUND
There is no need to repeat here the ALJ’s factual and procedural history. We
summarize the material background for context.
Vasek, a long-time professor of mathematics and engineering at the District, is a
member of the full-time faculty unit represented by the Mount San Jacinto College Faculty
Association (Association). The proposed decision in this case is not the first time an ALJ has
resolved unfair practice charges that Vasek has filed pertaining to alleged retaliation and
interference for protected e-mails. Vasek’s earlier charges, in summary, involved the
following events. In 2009, Vasek used the District’s e-mail system to communicate with the
District’s 150 faculty members and 600 classified employees to express his opinions regarding
the District’s Human Resources Department (HR), working conditions at the District, the
Association, and negotiations between the Association and the District. On November 9, 2009,
the District issued Vasek a letter stating that his e-mail activity violated its acceptable use
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policies.2 Later, the District hired an independent investigator to address Association President
Karen Cranney’s (Cranney) “Bullying Complaint,” which she filed with the District in
response to Vasek’s October 20, 2012 e-mail that was highly critical of her and other
Association leaders. Vasek filed unfair practice charges against the District and the
Association. In separate decisions that are now final and binding as to the parties, the ALJ
found that the District interfered with and the Association retaliated against Vasek for his
protected use of the District’s e-mail system.3
As the hearing dates before the ALJ were approaching, Vasek sent the November 4
e-mail which is the subject of the instant matter. Vasek sent the e-mail to members of the
Association leadership as well as to the Faculty and Classified distribution lists, in response to
earlier faculty messages about unresolved salary issues and other matters pertaining to a recent
tentative agreement between the District and the Association. Vasek attached to the November
4 e-mail a three-page, single spaced letter with ten sub-parts numbered by Roman
numerals. The majority of Vasek’s message focused on his criticism of Association leaders
and how their alleged failure as negotiators led to the unresolved salary issues. He also
2 District Administrative Procedure (AP) 6505, which governs acceptable uses for
District computer and communications technology generally, prohibits use of District
computing systems “including electronic communications such as electronic mail, to harass or
make defamatory remarks[.]” The policy further specifies that “[f]ailure to abide by these
conditions may result in denial of access to all [District] information systems and may subject
users to formal disciplinary action up to and including dismissal.” AP 6505 prohibits various
e-mail activity including, as relevant to this case “[e]mail that contains threatening, harassing
or menacing language[.]”
3 No exceptions were taken to the proposed decision in case number LA-CE-5789-E,
and it became final and binding on the District and Vasek on May 20, 2015. (PERB Decision
No. HO-U-1168.) Initial exceptions were filed by the prevailing party (Vasek) in case number
LA-CO-1567-E. In an accompanying decision today, we dismiss Vasek’s exceptions; the
ALJ’s decision is now final and binding on Vasek and the Association. (PERB Decision
No. HO-U-1607.)
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commented on the number of faculty who declined to join the Association and raised the idea
of decertifying the Association and replacing it with a new organization.
The parties’ dispute in this case centers on Section IX of the attachment to Vasek’s
November 4 e-mail. Section IX read in its entirety as follows:
To the few of you who are formally involved in [Association]
matters and who are sincere in your efforts to rectify problems
that exist, please be advised that, at some point in the next several
months, some nasty stuff is going to hit the fan, and some of it is
likely going to splatter on you if you’re not careful. So, I suggest
that you take great care to distan[ce] yourself from the
[Association] lest you also suffer untoward consequences; for,
ignorance of the law, or of the facts upon which the law relies, is
not a valid defense in the eyes of the law.
To employ another metaphor, I am warning you, in advance of
the coming judicial proceedings, that I will be taking aim and
pulling the trigger on certain individuals. Your failure to heed
the warning I am now giving you will not dissuade me from
pulling the trigger when the time comes. In essence, I am calling
out for you to crouch down out of the line of fire lest you yourself
become a casualty.
Vasek later testified that the “judicial proceedings” mentioned in his message referred
to the two PERB cases that were then scheduled to be heard in front of the ALJ. Vasek was
not involved in any other legal proceedings at the time.
Shortly after Vasek sent the November 4 e-mail, the District contacted the local police
department and police officers came to Vasek’s home and spoke to him about his e-mail.
There was no evidence that any police report was filed or that the police took any other action
with regard to the e-mail. Association President Cranney testified that she felt fearful after
receiving Vasek’s e-mail. Cranney stated that other employees expressed similar fears, but
none were identified and none testified. District Vice-President of Human Resources Irma
Ramos (Ramos) corroborated that Cranney registered a complaint, and said that other
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employees complained to Human Resources, but none were identified. Vasek testified that he
spoke with several employees who felt that the District overreacted to his e-mail, but Vasek
did not identify any of these employees.
On November 7, 2013, District Interim Associate Dean of Human Resources Victor
Collins (Collins) sent Vasek a letter purporting to be “a final formal warning concerning your
repeated violations [of District policy].” While Collins’ letter referenced Vasek’s 2009 and
2012 e-mails and described them as violations of District policy, the letter focused mainly on
Vasek’s November 4 e-mail. Collins quoted extensively from Section IX of Vasek’s message,
describing the quoted passages as “threatening comments.” Collins stated that “[s]uch emails
constitute a blatant violation of the District’s acceptable use and email policies,” noting that
AP 6506 prohibits e-mails containing “threatening, harassing, or menacing language,” and that
AP 6505 prohibits sending messages to harass or defame others.
In the letter, Collins directed Vasek to:
cease and desist any improper use of [the District]’s computer
and email system to send messages making any threatening,
harassing, or otherwise unprofessional statements. Please be
advised [that], further violation of these policies and/or [the
District’s e-mail policies] will result in the immediate suspension
or revocation of your District computer and email privileges.
Collins closed the final warning letter by stating that the letter and any written response to the
letter would be included in Vasek’s personnel file. Ramos testified that she and Collins were
particularly concerned about Vasek’s “taking aim” and “pulling the trigger” comments.
Ramos stated her belief that the District was required to take any shooting reference seriously.
Ramos was aware that the police paid a call to Vasek, but she never asked for or received a
written report of that visit. She did learn, eventually, that Vasek had not been arrested. The
District did not follow up with the police, investigate Vasek, or even contact Vasek to discuss
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the e-mail or confirm that his use of gun imagery was solely metaphorical. The District took
no action to prevent Vasek, even temporarily, from coming onto campus, teaching his students,
or interacting with faculty and staff.
On or around December 2, 2013, Vasek responded to the final warning letter. In his
response, Vasek stated that the November 4 e-mail was legally protected speech and that the
District’s response violated his rights. He also described his “taking aim” and “pulling the
trigger” statements as “common metaphors” and explained that he was simply trying to warn
others of “potentially embarrassing situations” that might arise if they testified in the PERB
hearings before the ALJ. Vasek filed a second response on January 21, 2015, in which he
requested that the District rescind the final warning letter. The District placed both responses
in Vasek’s personnel file along with the final warning letter. Vasek’s e-mail and computer
privileges remained intact.
DISCUSSION
Although the Board reviews exceptions to a proposed decision de novo, to the extent that
a proposed decision adequately addresses issues raised by certain exceptions, the Board need not
further analyze those exceptions. (City of Calexico (2017) PERB Decision No. 2541-M,
pp. 1-2.) The Board also need not address alleged errors that would not impact the outcome.
(Los Angeles Unified School District (2015) PERB Decision No. 2432, p. 2; Regents of the
University of California (1991) PERB Decision No. 891-H, p. 4.)
To demonstrate that an employer has discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
those rights; (3) the employer took adverse action against the employee; and (4) the employer
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took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210, pp. 6-8.) Here, the primary disputed issues are whether EERA
protects Vasek’s e-mail and whether the District took adverse action against him. We
undertake those inquiries below.
A. 	The Protected Activity Inquiry
Vasek’s claim rests on whether his November 4 e-mail was protected by EERA or lost
its protection because of his comments about “taking aim” and “pulling the trigger.” For the
following reasons, we agree with the ALJ that the November 4 e-mail did not lose its
protection because of the nature of its statements.
1. 	The Subject Matter Test for Determining if Speech is Protected
EERA section 3543, subdivision (a), protects employees’ right to form, join, and
participate in employee organization activities on matters concerning employer-employee
relations. EERA protects employee speech 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.’” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15
(Chula Vista), quoting Rancho Santiago Community College District (1986) PERB
Decision No. 602, p. 12 (Rancho Santiago).) An individual employee’s criticism of
management or working conditions is protected activity when its purpose is to advance other
employees’ interests or when it is a logical extension of group activity. (Chula Vista, supra, at
p. 15, citing Trustees of the California State University (2017) PERB Decision No. 2522-H, p.
16.) Additionally, speech that concerns the “‘autonomy and effectiveness of the exclusive
representative’” falls into the category of protected speech. (Chula Vista, supra, at p. 15,
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citing Rancho Santiago, supra, at p. 12.) Thus, critical statements about union leadership
typically are protected. (Chula Vista, supra, at p. 16; Rio School District (2015) PERB
Decision No. 2449, adopting proposed decision at p. 24.)
We agree with the ALJ that Vasek’s November 4 e-mail qualifies as protected speech.
The majority of his e-mail relates to matters common to all faculty members, including the
ramifications of the recent tentative agreement, salary parity, the effectiveness of the
Association’s leadership, and the possibility of decertifying the Association as the faculty
representative. In addition, Vasek’s e-mail was his response to other faculty who were
similarly discussing the tentative agreement and salary matters. Vasek’s e-mail fit into an
ongoing e-mail conversation among faculty about issues affecting them all. (Napa Valley
Community College District (2018) PERB Decision No. 2563, p. 12 (Napa Valley CCD).)
We also agree with the ALJ’s conclusion that even Section IX of Vasek’s e-mail, at its
core, concerns protected subjects. Although the District argues in its exceptions that its final
warning letter was not intended to address any legitimate union or bargaining-related speech
and was narrowly targeted at allegedly threatening language, the language in question must be
read in context. In Section IX itself, Vasek discusses his intent to address his disputes with
both the District and the Association through upcoming legal proceedings, i.e., the formal
hearings before the ALJ, in PERB case numbers LA-CE-5789-E and LA-CO-1567-E. Filing
and pursuing unfair practice charges with PERB are expressly protected under EERA. (EERA,
§ 3541.5, subd. (a); Los Angeles Community College District (2004) PERB Decision No. 1667,
adopting warning letter at p. 3 [filing unfair practice charge deemed protected activity];
Fullerton Elementary School District (2004) PERB Decision No. 1671, p. 5 [participating in
informal settlement conference in unfair practice case protected activity]; Fresno County
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Office of Education (2004) PERB Decision No. 1674, p. 13.)4 The closer question is whether
Vasek’s speech, when viewed by an objective observer, veered sufficiently into an actual threat
of physical harm and thereby lost its statutory protection. We turn now to that analysis.
2. 	Framework for Assessing Whether Speech on a Protected Subject Loses
Protection
Because disputes over wages, hours, and working conditions are among the disputes
most likely to engender ill feelings and strong responses, the parties are afforded wide latitude
to engage in “uninhibited, robust, and wide-open debate” in the course of those disputes. (City
of Oakland (2014) PERB Decision No. 2387-M, p. 23 (City of Oakland); State of California
(Department of Transportation) (1983) PERB Decision No. 304-S (Caltrans), adopting
proposed decision at pp. 22-28; Old Dominion Branch No. 496, National Assoc. of Letter
Carriers AFL-CIO v. Austin (1974) 418 U.S. 264, 273; Linn v. United Plant Guard Workers of
America, Local 114 (1966) 383 U.S. 53, 69.) The Board has recognized that public
employees’ right “to engage in concerted activities permits ‘some leeway for impulsive
behavior,’ ‘intemperate, abusive and inaccurate statements,’ or ‘moment[s] of animal
4 The District also argued that Vasek’s November 4 e-mail was not protected because it
did not fall within the range of permissible uses for District e-mail, citing Los Angeles County
Superior Court (2008) PERB Decision No. 1979-C (Los Angeles), and the District excepts to
the ALJ’s finding that Los Angeles does not apply. Under Los Angeles, an employee’s e-mail
about union matters is protected only if the e-mail falls within the bounds of permissible non-
business use under an employer’s nondiscriminatory e-mail use policy. The ALJ, in finding
Los Angeles inapposite, determined that Vasek’s e-mail in this case concerned similar subjects
to other e-mail activity already permitted by the District, and that Los Angeles did not permit
the District to restrict Vasek’s e-mail because of its content. (Proposed decision, p. 16.)
In Napa Valley CCD, supra, PERB Decision No. 2563, we overruled Los Angeles to the
extent it held that an employer’s prohibition on non-business e-mail use is permissible as long
as it is not promulgated or enforced in a manner that discriminates against statutorily protected
communications. (Id. at p. 19.) We held, instead, that an employer that provides its employees
access to its e-mail system cannot ban e-mails pertaining to protected topics on nonworking
time, absent a showing of “special circumstances necessary to maintain production or
discipline.” (Id. at p. 19.) The District has not shown such special circumstances here.
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exuberance.’” (City of Oakland, supra, PERB Decision No. 2387-M, p. 23, quoting Caltrans,
supra, PERB Decision No. 304-S, proposed decision at p. 25; Rancho Santiago, supra, PERB
Decision No. 602, pp. 12-14; see also Kiewit Power Constructors Co. v. NLRB (D.C. Cir.
2011) 652 F.3d 22, 26, enfg. (2010) 355 NLRB 708 (Kiewit Power); Prescott Industrial
Products Co. (1973) 205 NLRB 51, 51-52 [types of conduct which lose protection are those
“flagrant cases in which the misconduct is so violent or of such character as to render the
employee unfit for further service”].)
Because “not every impropriety committed during [otherwise protected] activity places
[an] employee beyond the protective shield of the [A]ct” (City of Oakland, supra, PERB
Decision No. 2387-M, pp. 23-24), employee speech that is related to employer-employee
relations will generally not lose its statutory protection unless it is so “opprobrious, flagrant,
insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption
of or material interference” with the employer’s operations. (Chula Vista, supra, PERB
Decision No. 2586, p. 16 (internal quotation marks omitted); City of Oakland, supra, PERB
Decision No. 2387-M, p. 24; Rancho Santiago, supra, PERB Decision No. 602, p. 13; Pomona
Unified School District (2000) PERB Decision No. 1345, p. 16 (Pomona).) Since PERB first
announced this standard in Rancho Santiago, supra, PERB Decision No. 602, PERB has
adapted the standard to track principles articulated by both the California and United States
Supreme Courts in First Amendment cases, as well as the National Labor Relations Board
(NLRB) in cases interpreting federal labor law. (Rancho Santiago, supra, PERB Decision No.
602, p. 12 & fn. 6.)
In Chula Vista, we clarified several important principles in interpreting the Rancho
Santiago standard. First, we noted that the standard encompasses two different tests that the
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NLRB uses to determine whether employee communications are protected. (Chula Vista,
supra, PERB Decision No. 2586, p. 19, fn. 9.) The first test is content-based and looks to
whether the speech is maliciously false. (Ibid., citing Mastec Advanced Technologies (2011)
357 NLRB 103, 107.) This test, in which we apply the “actual malice” standard, normally
applies when an employer or union claims that an employee’s speech has lost protection
because it criticizes the employer, union, or one or more individuals.
The second test that is incorporated into the Rancho Santiago standard, as articulated in
Atlantic Steel Co. (1979) 245 NLRB 814 (Atlantic Steel), is conduct-based and analyzes
whether the manner in which an employee engaged in face-to-face communications with a
manager or supervisor is so “opprobrious” and disruptive to operations that it loses statutory
protection. (Chula Vista, supra, PERB Decision No. 2586, p. 18, fn. 9, citing Triple Play
Sports Bar and Grille (2014) 361 NLRB 308, 311.)5 To determine whether an employee’s
otherwise-protected communication loses protection under Atlantic Steel, the NLRB balances
four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by
an employer’s unfair labor practice. (Atlantic Steel, supra, 245 NLRB 814; see Kiewit Power,
supra, 652 F.3d at p. 26; Plaza Auto Center, Inc. v. NLRB (9th Cir. 2011) 664 F.3d 286, 292,
enfg. in part (2010) 355 NLRB 493 (Plaza I).)
Typically, the NLRB has applied the Atlantic Steel factors to analyze whether face-to-
face communication in the workplace, between an employee and a manager or supervisor,
5 In Chula Vista, we applied the first test to determine whether the employee’s speech
lost its protection because it was maliciously false. (Chula Vista, supra, PERB Decision
No. 2586, p. 18 & fn. 9.) Because the employee’s face-to-face communications with
management were not at issue in Chula Vista, we did not address Atlantic Steel, the second
aspect of the Rancho Santiago standard. (Ibid.)
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constitutes conduct so opprobrious that the employee loses the protection of the Act. (Triple
Play Sports Bar and Grille, supra, 361 NLRB at p. 311.) The NLRB has declined to apply the
multifactor Atlantic Steel analysis to employees’ off-duty, offsite use of social media, noting
that the clear inapplicability of Atlantic Steel’s “place of the discussion” factor demonstrates
that the Atlantic Steel framework is tailored to workplace confrontations with the employer.
(Triple Play Sports Bar and Grille, supra, at p. 311 & fn. 14.)
Here, Vasek’s alleged threat was communicated in an e-mail directed at the Association
and his co-workers, rather than a face-to-face meeting. In that circumstance, we join the
NLRB in declining to strictly apply the multipart Atlantic Steel analysis.6 Rather, as discussed
below, we adapt the third Atlantic Steel factor—the nature of the employee’s outburst—in
considering whether an alleged threat of physical harm loses EERA’s protection.
3. 	Analysis of an Alleged Threat of Physical Harm
In Kiewit Power, after an employer warned its electricians that their morning and
afternoon breaks were too long, two of them responded that things would “get ugly” if they
were disciplined, and one said that the supervisor had “better bring [his] boxing gloves.”
(Kiewit Power, supra, 652 F.3d at p. 24.) The NLRB found this speech protected, finding that
in context their statements were not physical threats, but merely figures of speech made in the
course of a protected labor dispute. (Ibid.) The District of Columbia Circuit Court of Appeals
enforced the NLRB’s order. The court framed the question as whether the outburst “was so
unreasonable as to warrant denying protections that the Act would otherwise afford,” or, stated
another way, “whether the conduct is so egregious as to take it outside the protection of the
6 We considered such off-site, written conduct in Pomona, supra, PERB Decision
No. 1375. There we found that a teacher’s letters to district management threatening them
with a subpoena, grievance, or IRS inquiry did not lose protection where the language used
was “forceful but not abusive.” (Id. at p. 16.)
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Act, or of such a character as to render the employee unfit for further service.” (Id. at pp. 27-
28 (internal quotation marks omitted).) “[T]hat only happens when the employee’s actions are
not simply bad, but ‘opprobrious.’” (Id. at p. 28, quoting Felix Industries, Inc. v. NLRB (D.C.
Cir. 2001) 251 F.3d 1051, 1053.) The court found that the employees’ statements were more
likely to have been a figure of speech, and that they used this language to emphasize their
opposition to a disputed employer policy, rather than literally threatening physical combat.
(Ibid.)
Significantly, the NLRB’s test is not based on a listener’s subjective reaction, but rather
on whether an objective observer would more likely believe that there is a real threat of
violence or that the speech was strong and intemperate but not a legitimate threat. (Kiewit
Power, supra, 652 F.3d at pp. 28-29 & fn. 2; Plaza Auto Center, Inc. (2014) 360 NLRB 972,
974 (Plaza II).) If employees are speaking in metaphor, the meaning of the words is not
objectively threatening. (Kiewit Power, supra, 652 F.3d at pp. 28-29 & fn. 2; Plaza II, supra,
360 NLRB at p. 975 [discussing Kiewit Power].)
We adopt this objective test for determining whether an alleged threat is so
“opprobrious” that it loses statutory protection. In applying the objective test, we are mindful
of First Amendment jurisprudence adopting the following objective standard regarding what
constitutes a “true threat:”
Whether a particular statement may properly be considered to be
a threat is governed by an objective standard—whether a
reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the
statement as a serious expression of intent to harm or assault.
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(Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists
(9th Cir. 2002) 290 F.3d 1058, 1074, citation omitted (Planned Parenthood).)7 “Alleged
threats should be considered in light of their entire factual context, including the surrounding
events and reaction of the listeners.” (Id. at p. 1075, internal quotation marks omitted.) Under
First Amendment precedent, a “true threat” is one “where a reasonable person would foresee
that the listener will believe he will be subjected to physical violence upon his person.” (Ibid.
(internal quotation marks omitted).) Such speech is unprotected by the First Amendment.
(Ibid.)
Although we do not enforce the First Amendment, our task in this instance is similar, in
that we must examine all relevant circumstances to distinguish between intemperate remarks
and actual threats of physical harm. This is a fact-specific inquiry. (Compare Leasco, Inc.
(1988) 289 NLRB 549, 549, fn. 1 [employee who told his supervisor that he was going to “kick
[his] ass” was using a “colloquialism that standing alone does not convey a threat of actual
physical harm”]; Plaza II, supra, 360 NLRB at pp. 974-976 [employee’s statement that if he
were fired, employer “would regret it” was not objectively “menacing” behavior and in context
was an ambiguous statement “threatening legal consequences,” rather than physical harm);
Alpha Resins Corp. (1992) 307 NLRB 1219, 1234 [employee’s impersonal reference to a mass
shooting tragedy was “more symbolistic than threatening and was not accompanied by any
physical manifestations of intent”] with Town and Country Supermarkets (2004) 340 NLRB
1410, 1413 [employee’s repeated statement “next time I see you I’m going to kick your ass,”
7 In Planned Parenthood, supra, 290 F.3d at p. 1074, after publication of a poster
containing the name, address and photograph of an abortion provider, and after the subsequent
murder of the doctor shown on the poster, a pro-life group lost First Amendment protection
under the “true threat” doctrine when it issued a new poster showing the names of murdered
doctors crossed out and the names of wounded doctors greyed out, alongside names and
addresses of additional living doctors.
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arguably followed by a physical challenge, amounted to actual threat]; Omni International
Hotel (1979) 242 NLRB 248, 250 [employees’ speech was unprotected when they told security
guards, among other things, that they would be back and would kill any security guards they
found on the street].)
4. 	Applying the Objective Test to Vasek’s November 4 E-mail
The District’s final warning letter focused on Vasek’s references to “taking aim” and
“pulling the trigger.” However, Vasek’s words were more clearly metaphorical than the
language used in the above-noted cases, because he “contemporaneously qualified” them by
expressly stating that he was “employ[ing] another metaphor.” (Cf. Plaza II, supra, 360
NLRB at p. 976 [ambiguous employee statements often are not contemporaneously qualified,
but even then do not necessarily constitute physical threats].)
Thus, we find that, in context, Vasek’s words were not objectively physical threats.
Rather, the two paragraphs that constitute Section IX were metaphorical speech. The first
paragraph warned those involved in Association matters that “at some point in the next several
months, some nasty stuff is going to hit the fan.” The second paragraph followed with what
Vasek described as “another metaphor,” this one warning “in advance of the coming judicial
proceedings, that I will be taking aim and pulling the trigger on certain individuals.” Not only
were Vasek’s words expressly metaphorical, they were not accompanied by any physical
conduct or other facts indicating that the words were a physical threat rather than a metaphor.8
Association President Cranney testified that she felt fearful after receiving Vasek’s
8 We do not hold that Vasek’s words were shielded because they were unaccompanied
by physical gestures; only that the absence of such gestures is relevant evidence that, in these
circumstances, further points toward the overall conclusion that Vasek was not making a
physical threat. (Kiewit Power, supra, 652 F.3d at p. 29 & fn. 2.)
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e-mail. Human Resources Vice-President Ramos corroborated that Cranney registered a
complaint with her. However, the subjective perception of an employee’s statement is not
dispositive where the comments were objectively not a threat. (Kiewit Power, supra, 652 F.3d
at p. 29, fn. 2, citing Shell Oil Co. (1979) 226 NLRB 1193, 1196.) Here, the record reflects
that Vasek was using intemperate language in expressing his intent to aggressively litigate his
unfair practice charges. (Cf. Plaza II, supra, 360 NLRB at p. 976 [even where employee was
otherwise belligerent, he was plausibly threatening only legal consequences—not physical
harm—in telling manager he would “regret” it if he terminated the employee].) The police
questioned Vasek at his home in the immediate aftermath of the e-mail, and there is no
evidence that the police investigation went further. Vasek was not taken into custody. The
District’s response to the e-mail signals that it understood that Vasek was speaking
metaphorically; it did not alert campus police or take steps to limit Vasek’s presence on
campus or contact with students, faculty, or staff. (County of Riverside (2009) PERB Decision
No. 2090-M, p. 33 (Riverside) [employer that truly believed that employee had made credible
threats of violence would not have permitted him to continue working].) Indeed, the District
did not even contact Vasek to conduct an investigation or discuss his language.
We find that in these circumstances the employer would have had a legitimate basis to
investigate Vasek to double check his meaning and to ascertain all surrounding circumstances.
(Chula Vista, supra, PERB Decision No. 2586, pp. 30-31 [holding that “an employer does not
interfere with employee rights when it conducts an initial investigation of arguably protected
activity based on a facially valid complaint, provided that (i) the nature of the complaint
legitimately calls into question whether the employee conduct was protected, and (ii) if the
employer acquires information indicating that the alleged conduct was protected, the employer
16

________________________
immediately ceases the investigation and notifies all affected employees regarding its
outcome.”].)9 However, for all the reasons discussed above, an objective reader would more
likely than not take Vasek’s language at face value as a metaphor, as Vasek himself urged in
his message.
We deplore the toll that gun violence is taking in workplaces, schools, and society at
large, and we acknowledge an employer’s duty to investigate an allegedly threatening remark
after receiving a colorable complaint. We similarly acknowledge an employer’s right to
respond to threats of violence with significant consequences. However, when an alleged threat
comes in the context of protected activity, the employer may go forward with adverse action
following an investigation only if the facts satisfy the objective test set forth above. We join
the ALJ in finding that, objectively viewed, Vasek did not actually threaten violence.
B. 	The Adverse Action Inquiry
The District issued Vasek “a final formal warning” concerning alleged repeated
violations of District policy. The letter (1) directs Vasek to cease and desist “any improper
use” of the District’s computer and e-mail system to “send messages making any threatening,
harassing, or otherwise unprofessional statements,” and (2) advises him that further violation
of the District’s e-mail and computer policies “will result in the immediate suspension or
revocation” of his computer and e-mail privileges. The letter and Vasek’s written response
were included in Vasek’s personnel file. The District’s exceptions assert the letter was not an
adverse action.
In determining whether an employer’s action is adverse, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Chula Vista, supra,
9 Not before us are any allegations regarding any investigation the District may have
done or regarding whether the District was warranted in calling the police.
17

________________________
PERB Decision No. 2586, pp. 24-25.) “The test which must be satisfied is not whether the
employee found the employer’s action to be adverse, but whether a reasonable person under
the same circumstances would consider the action to have an adverse impact of the employee’s
employment.” (Id. at p. 25, quoting Newark Unified School District (1991) PERB
Decision No. 864, pp. 11-12.) The reasonable person test guides us equally when the
employer’s alleged adverse action is a warning of a possible future action. (Chula Vista,
supra, at p. 25.) While the District concedes that a threat of future discipline may be
considered an adverse employment action, the District contends that a threat to revoke Vasek’s
computer and e-mail privileges cannot constitute an adverse employment action.
While the November 7, 2013 letter does not expressly threaten future discipline, it is
undisputed that the letter was Vasek’s “final formal warning” that he had violated both AP
6505 and AP 6506. The text of AP 6505 states that violations could result in “formal
disciplinary action, up to and including termination.” It is also undisputed that the letter was
placed in Vasek’s personnel file.10 Under these facts, a reasonable person under the
circumstances would believe that the District could use the letter to initiate future discipline.
(San Diego Unified School District (2017) PERB Decision No. 2538, pp. 11-14.) Moreover, in
this day and age, prohibiting a college professor from accessing workplace computer and e-
mail systems would surely adversely impact his ability to do his job.
10 Moreover, when an employer places a document in an employee’s personnel file that
impugns the employee’s reputation or otherwise potentially impedes the employee’s
professional advancement, such action can constitute adverse action even absent any threat of
discipline. (Riverside, supra, PERB Decision No. 2090-M, p. 28, 30 [action need not
specifically threaten discipline if it otherwise has an adverse impact on the employee’s
employment]; State of California (Department of Youth Authority) (2000) PERB Decision
No. 1403-S, pp. 32-33 [adverse action found where employer demeaned employee by issuing a
substandard rating for “relationships with people,” and by imposing a documented requirement
that a fellow employee had to review budget requests].)
18

Finally, San Francisco Unified School District (2009) PERB Decision No. 2057 (San
Francisco USD), cited by the District, is inapposite. In San Francisco USD, the Board upheld
the dismissal of a complaint for failure to state a prima facie claim of retaliation, finding that
the bare allegation that the employer made disparaging remarks about an employee, in the
absence of facts showing the impact of such statements on the employee’s employment, does
not constitute an adverse action. (Id. at p. 9; see also Los Rios Community College District
(1994) PERB Decision No. 1048, adopting warning letter at p. 3 [no showing that employer’s
disparaging remarks made about employee in presence of another employee “caused harm” or
had impact on employee’s employment].) Here, on the other hand, the “final formal warning”
disparaged Vasek by implying that he made a physical threat, and served as notice that he
might lose access to the District’s e-mail and computer systems, or face formal disciplinary
action, including termination, if he further violated the District’s e-mail and computer use
policies.
This is not to say that the District was required to cast aside Cranney’s complaint. As
discussed above, in these circumstances, the District had a legitimate basis to investigate the
alleged threat. It is puzzling that the District did not do so to determine whether it was an
unprotected actual threat, nor even have a conversation with him about the fact that his
unfortunate metaphor had caused concern among his co-workers. While an employer has a
duty to investigate a colorable complaint about an alleged physical threat, here the District
acted unlawfully when it dispensed with any investigation and came to an incorrect conclusion
that Vasek had made a physical threat.
19

C. 	The Motivation Inquiry
District Human Resources Vice-President Ramos verified what is plain from the face of
the November 7, 2013 letter: Section IX of Vasek’s November 4 e-mail was the impetus for
the District’s final formal warning. Thus, there is no dispute that Collins and Ramos had
knowledge of Vasek’s protected November 4 e-mail. Moreover, because the District concedes
that its action was taken in response to Vasek’s e-mail, and we find that the November 4, 2013
e-mail, including Section IX, was protected under EERA, such conduct constitutes direct
evidence of unlawful motive. (Chula Vista, supra, PERB Decision No. 2586, p. 26
[employer’s words or actions that reveal the adverse action was taken in response to the
employee’s protected activity serves as direct evidence of unlawful motive].)
Because Vasek has established a prima facie case of retaliation, the burden shifts to the
District to prove that it would have taken the same action in the absence of Vasek’s protected
activity. (Chula Vista, supra, PERB Decision No. 2586, p. 27.) In light of Ramos’s testimony
that Section IX of Vasek’s November 4 e-mail was the impetus for the District’s final warning
letter, we conclude that the District has not met this burden. (See State of California
(Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 14
[employer failed to sustain its burden where it admitted to disciplining an employee for
conduct later determined to be protected].)
REMEDY
If an employer unlawfully places documents into an employee’s personnel file, the
proper remedy is to order the employer to rescind those documents, remove them from the
personnel file, and destroy them. (Alisal Union Elementary School District (2000) PERB
Decision No. 1412, pp. 35-37; Yolo County Superintendent of Schools (1990) PERB Decision
20

No. 838, pp. 12-14.) In such cases, the Board also typically issues a cease and desist order and
directs the employer to post a notice of the violation. (Ibid.) The ALJ’s proposed order
includes these remedies, and the District did not except to any of them.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Mount San Jacinto Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5,
subdivision (a). The District violated EERA by issuing Anthony G. Vasek (Vasek) a
November 7, 2013 letter, described as a “final formal warning,” in retaliation for Vasek’s
protected communications.
Pursuant to EERA section 3541.5, subdivision (c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Vasek for engaging in protected activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the November 7, 2013 letter, remove it from Vasek’s personnel
file, and destroy it.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to District faculty customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. The
District shall also post the Notice by electronic message, intranet, internet site, and other
21

electronic means customarily used by the District to communicate with faculty members.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Vasek.
Members Banks and Winslow joined in this Decision.
22

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5921-E, Anthony G. Vasek v.
Mount San Jacinto Community College District (District), in which all parties had the right to
participate, it has been found that the District violated the Educational Employment Relations
Act (EERA), Government Code section 3541.5, subdivision (a), by issuing Anthony G. Vasek
(Vasek) a November 7, 2013 letter, described as a “final formal warning,” in retaliation for
Vasek’s protected communications.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Vasek for engaging in protected activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Rescind the November 7, 2013 letter, remove it from Vasek’s personnel
file, and destroy it.
Dated: _____________________ 	MOUNT SAN JACINTO COMMUNITY
COLLEGE DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTHONY G. VASEK,
Charging Party,
v.
MOUNT SAN JACINTO COMMUNITY
COLLEGE DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5921-E
PROPOSED DECISION
(August 18, 2015)
Appearances: Anthony G. Vasek, on his own behalf; Atkinson, Loya, Ruud & Romo, by
William A. Diedrich and Paul Z. McGlocklin, Attorneys, for Mount San Jacinto Community
College District.
Before Eric J. Cu, Administrative Law Judge.
In this case, a public school employee claims that his public school employer issued
him a written warning because he engaged in activity protected under Educational
Employment Relations Act (EERA).1 The employer denies any unlawful retaliation.
PROCEDURAL HISTORY
Anthony G. Vasek filed this unfair practice charge with Public Employment Relations
Board (PERB or Board), accusing Mount San Jacinto Community College District (District or
MSJC) of issuing him a “threatening letter” because of his protected e-mail activity. In an
earlier unfair practice charge, case number LA-CE-5789-E, Vasek similarly accused the
District of retaliating against him for his e-mail activity and interfering with his right to
communicate with others. At the times relevant to this case, case number LA-CE-5789-E was
assigned to Administrative Law Judge (ALJ) Valerie Pike Racho for hearing and decision.
1 EERA is codified at Government Code section 3540 et seq.

________________________
The PERB Office of the General Counsel issued a complaint in the present case on
September 24, 2014, alleging that the District issued Vasek a written warning because of his
protected e-mail communications on November 4, 2013. On October 13, 2014, the District
filed its answer to the complaint denying that Vasek engaged in protected activity and also
denying any retaliation. No informal settlement conference was held. Instead, a formal
hearing was scheduled for February 2015.
On January 23, 2015, Vasek requested to place this case in abeyance until case number
LA-CE-5789-E was decided. Vasek asserted that this case overlapped significantly with case
number LA-CE-5789-E, and that he intended on re-litigating issues from the earlier case in the
present matter unless PERB granted his abeyance request. The abeyance request was denied,
but the matter was continued with the parties’ agreement.
On April 23, 2015, ALJ Racho issued her proposed decision in case number LA-CE-
5789-E, dismissing Vasek’s retaliation claim, but sustaining a violation in his interference
claim.
The hearing in the present case began on May 1, 2015, and concluded after a second
day on May 20, 2015. Coincidentally, May 20, 2015, was also the date that ALJ Racho’s
proposed decision in case number LA-CE-5789-E became final pursuant to PERB Regulation
32305, subdivision (a).2 (See PERB Decision No. HO-U-1168-E.) Once that decision became
final, the parties acknowledged and agreed that ALJ Racho’s factual and legal determinations
had collateral estoppel effect, meaning that ALJ Racho’s conclusions in PERB Decision No.
HO-U-1168-E, were binding on both sides.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

The parties filed closing briefs on July 31, 2015. At that point, the record was closed
and the matter was considered submitted for decision.
FINDINGS OF FACT
The Parties
The District and is a public school employer within the meaning of EERA section
3540.1, subdivision (k). The District employs roughly 150 faculty members and 600 classified
employees. Vasek is a public school employee within the meaning of EERA section 3540.1,
subdivision (j), and has been a full-time faculty member at the District for 28 years. District
faculty are in a bargaining unit represented by the Mount San Jacinto College Faculty
Association (Association or MSJCFA).
The District’s E-Mail System and Technology Usage Policies
The District operates an e-mail system for all of its employees. Each employee is
assigned an e-mail account and can e-mail any other employee. The District also maintains
distribution lists for collective e-mails. As relevant to this case, the District has “Faculty” and
“Classified” distribution lists for sending messages to all employees in those categories.
The District also maintains Administrative Procedures (APs) concerning employees’
use of technology. AP 6505 governs acceptable uses for District computer and
communications technology generally. Among other restrictions, AP 6505 prohibits use of
District computing systems “including electronic communications such as electronic mail, to
harass or make defamatory remarks[.]” The policy further specifies that “[f]ailure to abide by
these conditions may result in denial of access to all [District] information systems and may
subject users to formal disciplinary action up to and including dismissal.”
AP 6506 was designed to “outline the policy for the proper use of the District
computing systems for email communications.” That policy also prohibits various e-mail
3

activity including, as relevant to this case “[e]mail that contains threatening, harassing or
menacing language[.]”
Past Examples of Employees’ E-Mail Usage
Although AP 6506 places restrictions on employees’ use of distribution lists, the record
in this case shows that faculty were permitted to use that system widely for communicating
over Association business. In addition, in PERB Decision No. HO-U-1168-E, ALJ Racho
found that Vasek used the District’s e-mail system frequently to express his opinions on the
District’s Human Resources (HR) department, working conditions at the District, the
Association, and negotiations between the Association and the District. ALJ Racho detailed
certain communications from Vasek in November 2009, in which he criticized then-Vice
President of HR Irma Ramos. On November 9, 2009, the District issued Vasek a letter stating
that his e-mail activity violated the District’s acceptable use policies. (Id. at p. 7.)
ALJ Racho further found that Association President Karen Cranney e-mailed all faculty
members in August 2012, regarding a union meeting and progress in contract negotiations with
the District. Her message suggested that District administrators were part of the Faculty
distribution list. On October 17, 2012, Vasek wrote a message to all faculty members
criticizing Cranney for not challenging the District’s inclusion of management on the Faculty
distribution list. (PERB Decision No. HO-U-1168-E, pp. 8-9.)
ALJ Racho also determined that on October 20, 2012, Vasek sent an e-mail to all
faculty with the subject “The Future of Union Negotiations” and including an attachment
entitled “What Lies Ahead.” In the e-mail and attachment, Vasek again criticized Cranney’s
leadership of the Association. He also disparaged other Association leaders and advocated for
replacing the Association leadership with a team picked and led by Vasek. ALJ Racho found
that Cranney filed a complaint with the District against Vasek over his October 20, 2012 e-
4

mail and that Ramos hired an independent investigator, Carla Barboza, to address the
complaint. (PERB Decision No. HO-U-1168-E, pp. 9-11.)
Vasek’s November 4, 2013 E-Mail Message
On November 4, 2013, Vasek sent an e-mail message to members of the Association
leadership as well as to the Faculty distribution list. Vasek sent a courtesy copy, or “cc,” to
both Ramos and to the Classified distribution list. Vasek’s e-mail responded to earlier faculty
messages about the recent tentative agreement between the District and the Association and
unresolved salary issues. Those earlier communications were sent to the Faculty distribution
list, with a copy to Ramos, but did not include the Classified distribution list.
Vasek’s e-mail attached a letter with ten sub-parts numbered by Roman numerals. The
majority of Vasek’s message focused on his critical views of the Association’s leaders and how
the salary matters being discussed could have been avoided by more competent
negotiators. He also commented on the number of faculty who declined to join the Association
and raised the idea of decertifying the Association and replacing it with a more effective
organization.
Section IX forms the central basis of the parties’ dispute in this case and for that reason,
it is quoted in its entirety:
To the few of you who are formally involved in MSJCFA matters
and who are sincere in your efforts to rectify problems that exist,
please be advised that, at some point in the next several months,
some nasty stuff is going to hit the fan, and some if it is likely
going to splatter on you if you’re not careful. So, I suggest that
you take great care to distan[ce] yourself from the MSJCFA lest
you also suffer untoward consequences; for, ignorance of the law,
or of facts upon which the law relies, is not a valid defense in the
eyes of the law.
To employ another metaphor, I am warning you, in advance of
the coming judicial proceedings, that I will be taking aim and
pulling the trigger on certain individuals. Your failure to heed
5

the warning I am now giving you will not dissuade me from
pulling the trigger when the time comes. In essence, I am calling
out for you to crouch down out of the line of fire lest you yourself
become a casualty.
In the final section of his message, Vasek stated that he sent the e-mail the Classified
distribution list because some classified employees expressed appreciation in being included in
other, similar communications.
During the hearing, Vasek said that the “judicial proceedings” mentioned in his
message referred to PERB case number LA-CE-5789-E, and another charge he filed against
the Association, PERB case number LA-CO-1567-E, also assigned to ALJ Racho. Vasek was
not involved in any other legal proceedings at the time.
Initial Reactions to Vasek’s November 4, 2013 E-Mail
During the hearing, Cranney testified that she felt fearful after receiving Vasek’s e-
mail. She also said that other employees expressed similar fears, but none were identified and
none testified. Cranney complained to Ramos about the e-mail. Ramos corroborated that
Cranney registered a complaint, and said that other employees complained to HR, but she too
did not identify any of those people.
Shortly after Vasek sent the e-mail, someone from the District contacted the local
police department, but no one at the hearing could recall who it was. A police office spoke
with Vasek about his e-mail. There was no evidence that any police report was filed or that the
police took any other action about the incident. Vasek testified that he spoke with several
employees who felt that the District overreacted to Vasek’s e-mail. Like Cranney and Ramos,
Vasek did not identify any of these employees, and none testified on his behalf.
6

The November 7, 2013 Letter
On November 7, 2013, then-District Interim Associate Dean, HR, Victor Collins, sent
Vasek a letter with the subject line “Violation of Email and Acceptable Use Policies.” In the
letter, Collins referenced Vasek’s November 2009 e-mails which Collins said violated the e-
mail usage policy. Collins also mentioned Vasek’s October 2012 e-mails, stating that a private
investigator concluded that Vasek had violated District policy.
The primary focus of Collins’s letter was Vasek’s November 4, 2013 e-mail. Collins
quoted extensively from Section IX of Vasek’s message, describing it as “threatening
comments.” Collins stated that “[s]uch emails constitute a blatant violation of the District’s
acceptable use and e-mail policies.” Collins noted that AP 6506 prohibits both e-mails
containing “threatening, harassing, or menacing language,” as well as, according to Collins,
“use of District email distribution lists to send messages that are not essential to the proper
execution of daily operations.” He further stated that AP 6505 requires use of District
technology in a responsible, efficient, ethical, and lawful manner, and prohibits sending
messages to harass or defame others.
In the letter, Collins informed Vasek that the “letter shall serve as a final formal
warning concerning your repeated violations [of District policy].” Collins directed Vasek to:
cease and desist any improper use of MSJC’s computer and email
system to send messages making any threatening, harassing, or
otherwise unprofessional statements. Please be advised that,
further violation of these policies and/or MSJC’s [e-mail policies]
will result in the immediate suspension or revocation of your
MSJC computer and email privileges.
Collins closed the letter by stating that the letter and any written response to the letter from
Vasek would be included in Vasek’s personnel file.
7

________________________
Collins, unfortunately, passed away shortly before the hearing in this case. However,
Ramos said that she worked closely with Collins in drafting the letter and reviewed it before
the District sent it to Vasek. Ramos said that she and Collins were concerned about Vasek’s
“taking aim” and “pulling the trigger” comments. She stated her belief that the District was
required to take any shooting reference seriously. She also said that she did not know Vasek’s
mindset at the time, did not know whether he had access to any firearms, and did not meet with
Vasek to discuss any of his e-mail activity. She was also not aware that Collins ever spoke
with Vasek on the subject either.
Vasek’s Responses to the November 7, 2013 Letter
On or around December 2, 2013, Vasek delivered his initial response to the District’s
November 7, 2013 letter. In the response, Vasek stated that his November 4, 2013 e-mail was
legally protected speech and that the District’s response violated his rights. He also described
his “taking aim” and “pulling the trigger” statements as “common metaphors” and said that he
does not own any firearms. Vasek said that he was simply trying to warn others of “potentially
embarrassing situations” if they testified in his PERB hearings on calendar at the time. Vasek
filed a second response on January 21, 2015, where he requested that the District rescind the
November 7, 2013 letter. Both responses were included in Vasek’s personnel file along with
the District’s letter.
ISSUE
Was the District’s November 7, 2013 letter an adverse employment action sent in
retaliation for Vasek’s protected activity?3
3 Vasek alternatively frames the issue in this case as whether the District’s November 7,
2013 letter interfered with his rights to engage in protected activity under the standard
articulated in Carlsbad Unified School District (1979) PERB Decision No. 89, pp. 10-11. I
find, however, that the claims in this case, as described in the PERB complaint, are best
8

________________________
analyzed under PERB’s retaliation doctrine. (See State of California (Department of
Personnel Administration) (2011) PERB Decision No. 2106a-S, p. 14.)
CONCLUSIONS OF LAW
The PERB complaint in this case alleges that the District issued Vasek the November 7,
2013 letter in retaliation for his protected e-mail activity on November 4, 2013. To
demonstrate that an employer discriminated or retaliated against an employee in violation of
EERA section 3543.5, subdivision (a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210, pp. 6-8 (Novato USD).)
The primary issues in dispute here are whether Vasek’s e-mail activity was protected
under EERA and also whether the District’s November 7, 2013 letter was an adverse
employment action. There is no serious dispute that the District knew of Vasek’s e-mail
activity and that the District’s response was sent because of Vasek’s e-mail. Both of those
facts are made clear from the face of the November 7, 2013 letter, and from the testimony of
its HR witness, Ramos. 4 Accordingly, this proposed decision will focus on the more heavily
disputed issues.
1. 	Vasek’s Protected E-Mail Activity
The first issue in dispute is whether Vasek engaged in any activity protected under
EERA. This section will address that question in three sub-parts: (a) the extent to which
4 The District does maintain that there is no circumstantial evidence of any connection
between Vasek’s e-mail and the District’s letter. However, because it is undisputed that the
letter was sent in response to Vasek’s e-mail, I find circumstantial evidence unnecessary here.
(Alisal Union Elementary School District (1998) PERB Decision No. 1248, p. 6.)
9

Vasek’s e-mail activity described in PERB Decision No. HO-U-1168-E should be considered
in the present case; (b) whether the subject matter of Vasek’s e-mails are protected; and (c)
whether those e-mails lost any protected status.
a. 	Consideration of E-Mail Activity From PERB Decision No. HO-U-1168-E
Both parties recognize that there is some overlap between ALJ Racho’s findings in
PERB Decision No. HO-U-1168-E and the present case, as the District’s November 7, 2013
letter references Vasek’s e-mail activity from both November 2009 and October 2012. That
earlier e-mail activity was not described in the PERB complaint in the present case and Vasek
seeks to have it considered. The District opposes. PERB addresses these disputes under its so-
called “unalleged violation” doctrine, which states:
The Board has authority to review unalleged violations where the
following criteria are met: (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 the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241, p. 8 (Lake Elsinore
USD), citing County of Riverside (2010) PERB Decision No. 2097-M; Fresno County Superior
Court (2008) PERB Decision No. 1942-C; Tahoe-Truckee Unified School District (1988)
PERB Decision No. 668.) PERB uses the same approach for requests to consider additional
instances of protected activity not pleaded in the complaint. (Lake Elsinore USD, p. 9; see also
Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 5, fn. 3.)
In Lake Elsinore USD, supra, PERB Decision No. 2241, the Board declined to consider
whether an employer took adverse actions against an employee because of protected conduct
not described in the complaint where the new protected acts were raised for the first time in the
charging party’s closing brief. (Id. at pp. 9-10, citations omitted.) In contrast, in West Contra
10

Costa Healthcare District (2010) PERB Decision No. 2145-M, the Board found that the
employer had adequate notice of a claim not in the complaint because facts relating to the
claim were discussed in the charging party’s original charge, its opening statement, and its
closing brief. (Id. at pp. 16-17.)
Here, the District acknowledges the applicability of the above test, but asserts that it
had insufficient notice that Vasek’s 2009 and 2012 e-mail activity would be an issue here. It
argues that the earlier e-mails were not specifically described in the PERB complaint.
However, that assertion is true in every request to consider “unalleged” violations or protected
activity. The very purpose of PERB’s unalleged violation doctrine is to decide what treatment
to give matters not pleaded in the PERB complaint. Moreover, the record shows that the
District had significant notice that Vasek’s earlier e-mail activity would be relevant in this
case. Most prominently, the District’s November 7, 2013 letter refers directly to Vasek’s 2009
and 2012 e-mail activity and uses those e-mails as support for issuing the “final formal
warning.” In addition, the District acknowledges that Vasek referred to his 2009 and 2012 e-
mail activity in his underlying unfair practice charge in this case. Likewise, on January 23,
2015, Vasek stated his intent to introduce evidence from case number LA-CE-5789-E if PERB
denied his abeyance request. I also referenced the overlap of evidence in pre-hearing
discussions and during the hearing. Based on these facts, the District had sufficient notice that
Vasek’s 2009 and 2012 e-mail activity would be at issue in this case.
The remaining elements of the above test are also met. As stated above, Vasek’s 2009
and 2012 e-mail activity were expressly mentioned in the District’s November 7, 2013 letter,
which is the alleged adverse action in this case. That letter is described as a “final formal
warning” due to Vasek’s “repeated violations” of the District’s e-mail policy. I infer from this
that Vasek’s earlier e-mails are inseparably intertwined with whether the District’s letter
11

constitutes retaliation for protected activity. I also conclude that both parties presented
witnesses and other evidence on this earlier e-mail activity during the hearing in case number
LA-CE-5789-E. ALJ Racho expressly determined that Vasek’s 2009 and 2012 e-mail activity
was protected. (See PERB Decision No. HO-U-1168-E, pp. 28-32.) Both parties had the
chance to file exceptions to those conclusions and neither elected to do so. Instead, both
parties expressly agreed that ALJ Racho’s determinations have collateral estoppel effect here.
(See State Center Community College District (2001) PERB Decision No. 1471, p. 10 (State
Center CCD), citing People v. Simms (1982) 32 Cal.3d 468, p. 484; State of California
(Department of Developmental Services) (1987) PERB Decision No. 619-S, proposed decision,
p. 14.) Under these circumstances, I find that the parties had a sufficient opportunity to
question witnesses and present evidence regarding Vasek’s 2009 and 2012 e-mail activity and
have both litigated those issues to their mutual satisfaction. It is accordingly appropriate to
consider Vasek’s e-mail activity from November 2009 and October 2012 as unalleged
protected activity.
b. 	The Subject-Matter of Vasek’s E-Mail
EERA section 3543, subdivision (a), protects public school employees’ right to form,
join, and participate in employee organization activities on matters concerning employer-
employee relations. As ALJ Racho observed, a central tenet of this right is employees’ ability
to communicate shared concerns over wages, hours, and other working conditions. (PERB
Decision, No. HO-U-1168-E, p. 19, citing Los Angeles Community College District (Perez)
(2014) PERB Decision No. 2404.)
Under these standards, an employee’s public advocacy over terms and conditions of
employment is protected activity. (Livingston Union School District (1992) PERB Decision
No. 965, proposed decision, p. 3; San Ramon Valley Unified School District (1982) PERB
12

Decision No. 230, pp. 15-18.) Accordingly, speech “related to matters of legitimate concern to
employees as employees,” is protected under EERA, including public commentary over “such
subjects as teacher safety, negotiations, leaves, the autonomy and effectiveness of the exclusive
representative and other employee organizations, educational policy and academic freedom.”
(Rancho Santiago Community College District (1986) PERB Decision No. 602, pp. 12-13
(Rancho Santiago CCD).) Furthermore, that “protection extends to speech that is
uncomplimentary to the employer, and even to speech concerning inaccuracies and
exaggerations.” (Trustees of the California State University (Sonoma) (2005) PERB Decision
No. 1755 (CSU Sonoma), p. 6, citing Pomona Unified School District (2000) PERB Decision
No. 1375, State of California (Department of Transportation) (1983) PERB Decision No. 304-
S.) In deciding the protected status of a communication, the main question is whether the
purpose of the statements is to advance employees’ interests in working conditions. (CSU
Sonoma, p. 6, citing Regents of the University of California (1984) PERB Decision No. 449-H,
proposed decision, p. 143.)
Turning first to Vasek’s November 2009 and October 2012 e-mails, ALJ Racho
specifically found that this e-mail activity was protected under EERA. (PERB Decision HO-
U-1168-E, pp. 28-32.) As stated above, the parties are now bound by those conclusions. (See
State Center CCD, supra, PERB Decision No. 1471.)
Vasek’s November 4, 2013 e-mail also qualifies as protected speech. The majority of
his e-mail pertains to matters common to all faculty members, including the ramifications of
the recent tentative agreement, salary parity, the effectiveness of the Association’s leadership,
and the possibility of decertifying the Association as the faculty representative. In addition,
Vasek’s e-mail was his response to other faculty who were similarly discussing the tentative
13

agreement and salary matters. Vasek’s e-mail, at least, broadly, fits into that ongoing
conversation among faculty about issues affecting them all.
Even Section IX of Vasek’s e-mail, at its core, concerns protected subjects. In that
section, Vasek discusses his intent to address his disputes with the Association through
upcoming legal proceedings, i.e., the hearings before ALJ Racho, for PERB case numbers LA-
CE-5789-E and LA-CO-1567-E. Filing and pursuing unfair practice charges or representation
petitions with PERB are expressly protected under EERA. (EERA, § 3541.5, subdivision (a);
Fresno County Office of Education (2004) PERB Decision No. 1674, p. 8, 13.) Likewise,
statements of one’s intent to pursue legal remedies, even those unassociated with PERB
processes, are protected. (California State Employees Association (Hutchinson) (1999) PERB
Decision No. 1355-S, warning letter, p. 6, citing Rio Hondo Community College District
(1980) PERB Decision No. 128.)
The District argues that Vasek’s e-mail was not protected because EERA does not
protect “purely intraunion” communications. This argument is unpersuasive both as a matter
of law and fact. As stated above, EERA protects discussions over a variety of topics, including
critical commentary about an incumbent union. (Rancho Santiago CCD, supra, PERB
Decision No. 602, pp. 12-13.) The case cited by the District in support of its argument,
California State Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision
No. 1411-S (Gonzalez-Coke), is inapposite. The main holding in that case was that the Board
typically refuses to intervene in internal union procedures, such as union member complaint
procedures or union elections, unless it can be shown that those internal procedures
substantially impact the employer-employee relationship. (Id. at p. 23; see also California
State Employees Association (Hutchinson) (1999) PERB Decision No. 1369-S, p. 3.) That
holding does not render employees’ discussions about their union unprotected. To the
14

contrary, the Board in Gonzalez-Coke also stated that employees’ participation in a reform
organization to challenge the current leadership of their union was protected. (Id. at p. 18,
citing California State Employees Association (Hackett, et al.) (1995) PERB Decision
No. 1126-S.) Vasek’s e-mail in this case similarly discusses various ways that faculty could
reform the Association and its leadership.
Moreover, Vasek’s e-mail was not limited to internal union matters. Rather, he
commented on issues such as faculty salary disparity, the possibility of decertifying the
Association, and pursuing unfair practice charges. As explained above, those are protected
subjects. (Rancho Santiago CCD, supra, PERB Decision No. 602, pp. 12-13.)
The District also asserts that Vasek’s November 4 2013 e-mail was not protected
because it did not fall within the range of permissible uses for District e-mail, citing in support
Los Angeles County Superior Court (2008) PERB Decision No. 1979-C (Superior Court).
Once again, I find the District’s cited authority inapplicable. Superior Court addressed an
employer’s decision to discipline an employee under a content-neutral e-mail usage policy for
sending messages on behalf of her union. The Board in that case utilized an “as applied”
analysis, holding that “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.” (Id. at p. 12.) The Board ultimately found that the employer could enforce
that policy against the union activist so long as it did not punish her because of the content of
15

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her messages. (Id. at pp. 12-13.)5 In contrast with this case, there is no dispute here that the
District issued the November 7, 2013 letter because of the content of Vasek’s e-mail.
In addition, ALJ Racho found, and I agree, that the District openly permits faculty to
discuss Association matters via e-mail. (See PERB Decision No. HO-U-1168-E, pp. 26-27.)
Even before Vasek’s November 4, 2013 e-mail, faculty had been e-mailing each other about
salary matters and the tentative agreement. Likewise, in August 2013, Vasek and Association
representatives discussed ratifying the tentative agreement and exchanged critical comments.
ALJ Racho similarly found that, in October 2012, Vasek participated in protected activity by
sending other e-mail to faculty and staff about the Association’s negotiators and executive
board. (HO-U-1168-E, pp. 9-10, 27.) These facts show that Vasek’s e-mail in this case
concerned similar subjects to other e-mail activity already permitted by the District. The
holding in Superior Court, supra, PERB Decision No. 1979-C, does not permit the District to
restrict Vasek’s e-mail because of its content.
c. 	Loss of Protected Status
An employee’s participation in protected activity does not insulate him or her from
legitimate employer action. (Ventura County Community College District (1999) PERB
Decision No. 1323 (Ventura CCD), p. 10, citing Fall River Joint Unified School District
5 Some may question the continued vitality of the Board’s holding in Superior Court,
supra, PERB Decision No. 1979-C, because the Board based its “as applied” analysis in that
case largely from the NLRB’s decision in The Register Guard (2007) 351 NLRB 1110. In
Purple Communications, Inc. (2014) 361 NLRB No. 126, the NLRB expressly overruled The
Register Guard, in favor of a broader access right for employees to use their employer’s e-mail
system for protected communications. (Id. at slip op. pp. 6-7, 12.) PERB has yet to address
whether it will continue to follow the reasoning of The Register Guard, or whether it will
abandon that approach as did the NLRB did in Purple Communications. (See Capistrano
Unified School District (2015) PERB Decision No. 2440, pp. 28-29 [finding that when PERB
elects to “follow federal authority on a particular issue, PERB is not automatically bound by
subsequent developments in federal law on that point”].)
16

(1998) PERB Decision No. 1259, pp. 22-24; Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375, proposed decision, p. 69.) This is because an “‘employee’s right to engage in
concerted activity may permit some leeway for impulsive behavior, which must be balanced
against the employer’s right to maintain order and respect.’” (Rio Hondo Community College
District (1982) PERB Decision No. 260, p. 12 (Rio Hondo CCD), quoting National Labor
Relations Board (NLRB) v. Thor Power Tool Co. (7th Cir. 1956) 351 F.2d 584, p. 585.)
PERB has relied of federal decisions decided under the National Labor relations Act
(NLRA) when striking the balance between protected speech rights and discipline and order in
the workplace. Borrowing language from such federal decisions, the Board has found that
statements about matters of common interest are protected unless the statements are so
“‘opprobrious, flagrant, insulting, defamatory, or fraught with malice,’” that the employee
forfeits any protected under EERA. 	(Mt. San Antonio Community College District (1982)
PERB Decision No. 224 (Mt. San Antonio CCD), quoting Academy of Art College (1979) 241
NLRB 839; see also Oakland Unified School District (2007) PERB Decision No. 1880, p. 21
(Oakland USD); Rancho Santiago CCD, pp. 12-13.) The context of the statements at issue is
critical in deciding whether the statements deserve protection. (See County of Riverside (2010)
PERB Decision No. 2119-M, p. 17, citing Los Angeles Unified School District (1988) PERB
Decision No. 659.)
In general, these standards allow for robust debate among employees over labor
disputes, management practices, the quality of union representation, and other matters relating
to employee working conditions. For instance, in Rancho Santiago CCD, supra, PERB
Decision No. 602, the Board considered newsletters published and distributed by a faculty
member and organizer for a minority union. (Id. at pp. 2-3.) The employee used the
17

newsletters to criticize both her employer and her incumbent union using some notably
provocative language. She likened the employer to “Nazi Germany” after it disciplined her for
the content of prior newsletters, stating that the district used “fear and intimidation” to run the
college. (Id. at pp. 6-7.) She further stated that her dissident union focused on academic
freedom and abuses by the district administration. She contrasted those goals with the
incumbent union which she described as “sell[ing] out” in contract negotiations and the
“weakest in California.” (Id. at pp. 10-11.) The Board found that those subjects were
protected under EERA. (Id. at p. 13.)
The Board in Rancho Santiago CCD, supra, PERB Decision No. 602, further
concluded that language used in the newsletters was not so “flagrant, opprobrious or malicious
as to lose its protected status.” (Id. at pp. 13-14.) In the context of that case, the Board found
that the employee was expressing her opinions on widely known and discussed issues at the
college and that the readers were free to form their own opinions on the issues covered. (Ibid.)
The Board also rejected as too conclusory the district’s evidence that the newsletters disrupted
operations, noting the lack of testimony from non-administration and the lack of evidence of
any actual disruption. (Ibid.)
In Rio Hondo CCD, supra, PERB Decision No. 260, the Board held that a union
officer’s utterance of the word “chickenshit,” towards the district superintendent during a
public assembly because the superintendent declined to answer questions about the status of
the parties’ negotiations was not so disrespectful as to impair the district in its ability to
maintain order and discipline. (Id. at p. 12, citing NLRB v. Blue Bell, Inc. (5th 1955) 219 F.2d
796, p. 797; see also California Teachers Association v. PERB (2009) 169 Cal.App.4th 1076,
p. 1092; Mt. San Antonio CCD, supra, PERB Decision No. 224, pp. 6-7.)
18

In contrast with those cases, Oakland USD, supra, PERB Decision No. 1880, involved,
in relevant part, a memo from a teacher about conflicts with his principal. (Id. at p. 20.) The
Board found that the memo discussed faculty committee activity and school policy reform only
“in passing,” and that the teacher dedicated much of the memo to issues largely irrelevant to
other teachers. Those issues included the principal’s apparent ignorance of the teacher’s
qualifications, and the teacher’s own personal feelings about the site administration. He also
accused the principal of singling him out as a “disloyal enemy,” isolating him, and making an
example out of him for other faculty. (Id. at p. 2, proposed decision, p. 51.) The Board found
that the “overall tone of the memo conveys a mocking and accusatory message” towards the
site administration and the principal in particular. (Id. at pp. 20-21.) For that reason, the
Board held that the memo was an unprotected attempt to “wage his own personal attacks” on
his principal with whom he had several disagreements. (Id. at p. 21.)
The Board in Oakland USD, supra, PERB Decision No. 1880, further concluded that
even if the memo was protected, the employee forfeited that protection through his subsequent
threatening conduct. (Id. at pp. 21-22.) The Board found that the teacher substantially
disrupted school site operations by forcing discussion over the memo during faculty committee
meetings. (Id. at p. 22.) During one of those meetings, the teacher yelled at others and was
rude, compelling a discussion among the participants about the teacher’s mental, emotional,
and physical stability. (Id. at pp. 23-24.) The Board credited testimony from other faculty at
the meeting who said they felt threatened by the teacher’s aggressive behavior. (Id. at p. 25.)
A number of federal decisions have applied the above-referenced standards in cases
involving statements with arguably threatening language. For instance, in Leasco, Inc. (1988)
289 NLRB 549, a group of employees approached their manager at an after-hours lounge to
discuss an unpopular new vehicle assignment policy. When the manager refused to discuss the
19

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policy in that setting, one of the employees in the group said “If you’re taking my truck, I’m
kicking your ass right now.” (Id. at p. 550.) He repeated the comment at least once and also
pointed his finger at the manager. He did not raise his fist or make any other aggressive
gestures. The NLRB found that the driver’s statements were merely a “profane colloquialism
used commonly to verbalize the speaker’s desire to prevail over another person or group.” (Id.
at p. 552.) It accordingly held that the statement, unaccompanied by other indicators of actual
violence did not lose protection. (Ibid.)
In Alpha Resins Corporation (1992) 307 NLRB 1219 (Alpha Resins), an employee
driver went to speak with his manager about perceived favoritism in driving assignments. The
discussion got heated and the employee said “[t]he best thing for me to do is get up and get out
of here before I wind up saying something and I’ll regret it and I’ll kick your ass and I’ll get
fired.” (Id. at p. 1222.) He then said that senior drivers were upset about losing assignments
and that “one of these days and you’re going to piss them off and they’re going to come in here
and it’s going to be worse than the McDonald’s deal [6] out yonder. They’re going to wind up
killing all of us.” The NLRB concluded that the employee’s comments were not so threatening
as to lose their protected status, noting that the employer had tolerated profane language in the
workplace in the past and the employee did not engage in any threatening acts or gestures. (Id.
at p. 1234.) It further concluded that his reference to a mass-shooting was “impersonal” and
was more “symbolistic than threatening.” (Ibid.; see also Kewitt Power Constructors Co. v.
NLRB (D.C. Cir. 2011) 652 F.3d 22, pp. 25, 28-29 [holding that an employee’s statement that,
if he lost his job “it’s going to get ugly and [his manager] better bring [his] boxing gloves,”
6 It was understood by all those present that the “McDonald’s deal” referred to a mass-
shooting by a lone gunman at a restaurant in California. (Alpha Resins Corp., supra, 307
NLRB at p. 1224.)
20

without accompanying gestures or other threatening circumstances was merely an intemperate
figure of speech]; Fieldcrest Cannon, Inc. (1995) 318 NLRB 470, p. 547 [holding that the
comment, “don’t you think [the plant superintendent] would look good in a wheelchair?” was
ambiguous and did not constitute a threat of immediate harm].)
However, the actual context of allegedly threatening statements is paramount and the
turn of a phrase may fundamentally change the analysis. In Town and Country Supermarkets
(2004) 340 NLRB 1410, an employee was an active officer for the incumbent union, but later
signed an authorization card for a rival group organizing the employees at the store. She
contacted the incumbent union president about whether to ratify a new contract and other wage
issues, but he failed to return her calls. When she saw him again, she said “next time I see you
I’m going to kick your ass. I’m not afraid of you.” She later repeated those comments to him
during a ratification vote meeting, in addition to challenging the president’s leadership and
vocally opposing ratification. A majority of the NLRB found that the employee’s comments
amounted to an actual threat of physical harm which was stripped of any protection under the
NLRA. The majority noted that the statements were made in the context of an acrimonious
debate over the two rival unions. It also distinguished the case from Leasco, supra, 289 NLRB
549, because the employee’s statement, that “I’m not afraid of you” made the employee’s
remarks more like an actual threat of a physical confrontation. (Id. at p. 1413.)
In Omni International Hotel (1979) 242 NLRB 248 (Omni Hotel), two employees
debated the merits of an active union organizing campaign with others, some of whom were on
duty at the time. When the conversation started to escalate, security representatives instructed
the two employees to leave because the conversation was disrupting others’ work. As the
employees left, they compared the security representatives to “Nazis.” The employees then
said “that they would be back, that they would kill any security guards they found on the street,
21

and that they would blow up the hotel and get rid of the Nazis.” (Id. at p. 250.) That hotel had
a history of six prior bomb threats in the past two years, each requiring a detailed investigation
from the fire and police departments. (Ibid.) The NLRB found that the threatening statements
were not protected. It rejected the assertion that the employees’ comments were a protected
response towards the employer’s provocation, i.e., directing that the employees cease their
conversation and leave the premises, reasoning that the NLRA contemplates only peaceful
methods for resolving disputes. (Id. at p. 253.)
Regarding Vasek’s November 2009 or October 2012 e-mails, ALJ Racho already
determined that the language those e-mails was not so opprobrious, flagrant, insulting,
defamatory, insubordinate, or fraught with malice that it lost protection under EERA. (PERB
Decision No. HO-U-1168-E, p. 32.) The District raises no arguments to the contrary.
The District does argue that Vasek’s November 4, 2013 e-mail lost any protection
because the “taking aim” and “pulling the trigger,” references constitute threats in violation of
AP 6505 and AP 6506. The District does not maintain that any other aspect of the November
4, 2013 e-mail lost any protected status. Unsurprisingly, those comments are the focal point of
the District’s November 7, 2013 response. Regarding Section IX, Vasek notably states that he
was speaking metaphorically. The comments in question are also clearly part of his discussion
over his upcoming legal proceedings and, in a larger sense, his effort to point out and correct
perceived inadequacies in the Association’s leadership. In this context, it is reasonably clear
that Vasek was describing his plan is to use the legal system to achieve his objectives and that
that the only consequences others may face from him would be the product of those legal
processes, not actual violence.
On the other hand, Vasek could have hardly picked a worse time to employ a gun
metaphor. His November 4, 2013 e-mail was less than two months from a widely-publicized
22

mass-shooting by gunman at a military facility in Washington D.C. (Shear, Gunman and 12
Victims Killed at Shooting in D.C. Navy Yard (Sept. 16, 2013), ¶¶ 1-2.) It was also less than
six months from another shooting at and around a community college in Santa Monica,
California, and less than a year from a particularly devastating shooting at an elementary
school in Newtown, Connecticut. (Lovett and Nagourney, Gunman Kills 4 in California
Before he is Killed (Jun. 7, 2013), ¶ 1; Barron, Children Were All Shot Multiple Times With a
Semiautomatic, Officials Say (Dec. 15, 2012), ¶¶ 1-2.) In addition, the violent imagery Vasek
used was of a different tenor than any other communications in the record. Although Vasek
points out that the District appears to have tolerated other metaphorical language in the past, he
did not produce a single instance of another employee using similarly provocative language. I
do not place Vasek’s references to “taking aim,” “pulling the trigger,” on the same level as
employees’ prior references to putting “the fire to [one’s] feet,” “push[ing] the administration
to the wall,” or teaching a “pig to sing.” I also note that the District hired a private
investigator who concluded that Vasek had engaged in “threatening behavior” towards another
employee. However, that report has limited evidentiary value as it is conclusory, hearsay, and
also based entirely on hearsay. (See PERB Regulation 32176; Palo Verde Unified School
District (2013) PERB Decision No. 2337, pp. 19-20 (Palo Verde USD).)
Evaluating the full context of Vasek’s statements in conjunction with all the relevant
legal authority was not an easy task. However, on balance, I conclude that Vasek’s statements
were not so egregious that they lost protection under EERA. As in Rancho Santiago CCD,
supra, PERB Decision No. 602, Leasco, supra, 289 NLRB 549, Alpha Resins, supra, 307
NLRB 1219, and others, the most reasonable interpretation of Vasek’s comments were that he
was speaking figuratively, not literally. Unlike in Oakland USD, supra, PERB Decision
No. 1880 and Town and Country Supermarkets, supra, 340 NLRB 1410, the statements in
23

question here were not accompanied by threatening actions, gestures, or other circumstances
creating any reasonable perception of actual physical danger. To the contrary, Vasek made the
comments in question via e-mail, which permitted a more measured reaction, including the
opportunity to review Vasek’s full message. And the terms “taking aim” and “pulling the
trigger,” though startling in light of events occurring in the news at the time, are both fairly
common expressions in American vernacular referring respectively to preparing to take action
and initiating an action or response. (See American Slang: The Abridged Edition of the
Classic Dictionary of American Slang (4th Ed. 2008), p. 501; McGraw-Hill’s American Idioms
Dictionary (4th Ed. 2006), pp. 428, 512.)
The news reports of prior gun violence incidents around the time of Vasek’s e-mail are
troubling, but unlike in Omni Hotel, supra, 242 NLRB 248, I do not find that those
contemporaneous outside events increase the likelihood that Vasek’s comments should be
taken literally. In Omni Hotel, the employer in that case received multiple bomb threats from
unknown sources at that time and the employees also made other threatening and angry
remarks, creating a greater sense of apprehension of actual violence. In this case, Vasek’s own
comments are more similar to Alpha Resins, supra, 307 NLRB 1219, where the employee’s
reference to a mass-shooting was merely “symbolistic” with no indication that such an attack
would actually occur. I find that Vasek’s comments were not more than pointed language used
to convey his message about taking legal action to address perceived problems at the District
and within the Association. And although at least one employee, Association President
24

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Cranney, complained about Vasek’s e-mail, there was no evidence of any disruption to District
operations.7
I also note that Vasek’s comments in Section IX were not merely an outburst during his
discussion of protected subjects. Vasek admits that one of his goals was to discourage others
from testifying against him in his then-upcoming PERB hearings. Just as Vasek has the
protected right to pursue his PERB claims against the District and the Association, other
District employees too have the protected right to testify before PERB. (California State
University, Fresno (1990) PERB Decision No. 845-H, p. 10.) Those protections apply even if
their testimony is in opposition to Vasek’s legal positions. That said, I am not persuaded to
change my conclusion that Vasek’s e-mail retained its protected status in this situation. It is
reasonably clear from his e-mail that he was merely informing others of what he believed the
evidence would show at his hearings.8 Healthy debate over disputed subjects inevitably results
in some effort by one side to convince the other to change a position. Individual employees,
such as Vasek may freely engage in those efforts so long as their statements and conduct are
not so opprobrious, flagrant, insulting, defamatory, or fraught with malice that their actions
lose their protected status. As stated above, Vasek’s communications do not cross this line.9
7 Both Cranney and Ramos testified that other employees complained about Vasek’s e-
mail. Vasek alternatively testified that other employees understood the metaphorical context
of Vasek’s message and felt that the District’s reaction was out of proportion. I find all of this
testimony to be uncorroborated hearsay with limited evidentiary value.
8 I might have been inclined to see the matter differently had the police pursued the
matter as some kind of a crime (see e.g., Penal Code 136.1, subd. (a)(1) [making it a crime to
“knowingly and maliciously” attempt to prevent or dissuade a potential witness from testifying
in legal proceedings], or had ALJ Racho concluded that the hearings in case number LA-CE-
5789-E or LA-CO-1567-E were compromised. There was no record that either occurred here.
9 A different analysis would likely be required if the comments in question were made
by a District or union representative. Notably, both employers and employee organizations
have an affirmative duty under EERA not to interfere with employees’ exercise of protected
25

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rights. (EERA, §§ 3543.5, subd. (a); 3543.6, subd. (b); see also State of California
(Department of Corrections) (1995) PERB Decision No. 1104-S, proposed decision, pp. 6, 18
[holding that a supervisor’s pre-hearing meeting with a witness to get him to change his
planned testimony about a disputed policy was unlawful]; AM Holding Group (2007) 350
NLRB 998, pp. 1042-1043 [holding that an employer engaged in unlawful witness coercion by
questioning witnesses about their immigration status, when that status was irrelevant to the
case].)
In sum, Vasek’s November 4, 2013 e-mail, when viewed in its proper context and under
all the surrounding circumstances, I do not conclude that Vasek’s November 4, 2013 e-mail
was so threatening that it lost the protection of EERA. And because his message was not
otherwise unacceptably opprobrious, flagrant, insulting, defamatory, or fraught with malice his
e-mail retained its protected status under EERA. I stress that these conclusions do not amount
to PERB’s endorsement of Vasek’s statements. It is not, however, PERB’s place to evaluate
the wisdom of an employee’s remarks, even when those statements exceed the norms of polite
company. It is nevertheless my sincere hope that the parties recognize that not everything that
can be said should be said.
2. 	The November 7, 2013 Letter as an Adverse Employment Action
The next issue in dispute is whether the District’s November 7, 2013 letter sent in
response to Vasek’s various e-mail activity was an adverse employment action. The central
question is “whether a reasonable person under the same circumstances would consider the
action to have an adverse impact on the employee’s employment.” (Newark Unified School
District (1991) PERB Decision No. 864, pp. 11-12.) Not all writings from an employer meet
this standard. For instance, an “expectations memorandum” issued to an employee that
appeared to be a non-disciplinary clarification of the charging party’s job duties—pursuant to
her own request—was not considered objectively adverse to employment. (State of California
(Department of Transportation) (2005) PERB Decision No. 1735-S, warning letter, p. 4.)
26

Conversely, a formal letter placed in an employee’s personnel file that concluded that the
employee engaged in “inappropriate and negative” conduct was considered adverse. (Alisal
Union Elementary School District (2000) PERB Decision No. 1412, pp. 22-23 (Alisal UESD).)
Similarly, “placing a document that could support future discipline in an employee’s personnel
file is also an adverse employment action.” (City of Long Beach (2008) PERB Decision
No. 1977-M, p. 13.)
In this case, the District’s November 7, 2013 letter was not described as disciplinary
and, as the District points out, does not expressly threaten future discipline. However, it is
undisputed that the letter was Vasek’s “final formal warning” that he violated both AP 6505
and AP 6506. The text of AP 6505 states that violations could result in “formal disciplinary
action, up to and including termination.” It is also undisputed that the letter was placed in
Vasek’s personnel file. Under these facts, a reasonable person under the circumstances would
feel that the District could use the letter to initiate future discipline. For that reason, the letter
is an adverse employment action. (See City of Long Beach, supra, PERB Decision No. 1977-
M, p. 13.)
3. 	The District’s Burden of Proof
Vasek has established all of the elements of a prima facie case. The burden of proof in
the case now shifts to the respondent to show that the adverse action occurred for reasons
unrelated to Vasek’s protected activity. (Chula Vista Elementary School District (2011) PERB
Decision No. 2221, p. 21, citing Novato USD, supra, PERB Decision No. 210; Martori Bros.
Dist. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721.) This burden requires the
employer to establish both:
(1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative
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non-discriminatory reason and not because of the employee’s
protected activity.
(Palo Verde USD, supra, PERB Decision No. 2337, pp. 18-19, citations omitted; see also
County of Orange (2013) PERB Decision No. 2350-M, p. 16.)
In this case, I credit Ramos’s testimony where she states that Section IX of Vasek’s
November 4, 2013 e-mail was the impetus for the District’s November 7, 2013 letter. In doing
so, I conclude that the District would have issued Vasek a substantially similar letter regardless
of whether Vasek had engaged in his 2009 and 2012 e-mail activity. The District had already
responded to that earlier activity and it is unlikely that it would have spontaneously sent
another letter a year later based solely on those earlier e-mails. That said, I have also found
that Vasek’s November 4, 2013 e-mail, including Section IX, was protected under EERA.
Under the circumstances, I cannot conclude that the District would have issued the letter even
if Vasek had not sent this protected e-mail. (See State of California (Department of
Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 14 [holding that the
employer failed to sustain its burden where it admitted to disciplining an employee for conduct
later determined to be protected].)
One other issue raised by the facts of this case is whether the District was entitled to
take some action in response to Cranney’s complaint about Vasek’s November 4, 2013 e-mail.
In Trustees of the California State University (East Bay) (Liu) (2014) PERB Decision
No. 2391-H (CSU East Bay), PERB held that the employer was justified in excluding the
charging party employee from campus after he sent an e-mail stating “if [the charging party]
kills someone, then staff members of HR department should die first.” The employee in that
case also made other statements about “fighting to the death,” in his personnel dispute with his
employer, photographed his students before class, and ignored prior warnings from the
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employer’s police chief to adjust his behavior. (Id. at pp. 31-32, proposed decision, pp. 35-
37.)10 The parties did not litigate whether the employee’s e-mail or other conduct, described
above, was protected.
In Ventura County CCD, supra, PERB Decision No. 1323, the Board found that an
employer was justified in sending an employee a disciplinary letter, placing him on leave, and
requiring a psychological examination because of his angry confrontations with his coworker,
his no-contest plea to a domestic violence incident, and his admission to his supervisor that he
had anger issues. (Id. at p. 10.12.) Again, the Board did not consider whether the employee’s
arguably threatening behavior was protected.
In Oakland USD, supra, PERB Decision No. 1880, the Board found that an employer
was entitled to take “reasonable safety precautions,” such as contacting local authorities after
employees complained about being threatened by another employee’s conduct during a faculty
committee meeting. (Id. at p. 26.) As stated above, the Board in that case expressly found that
the employee’s conduct was not protected under EERA. (Id. at pp. 21-22.)
Here, while the District may have been entitled to initiate some action because of
Cranney’s complaint, because the complaint concerns Vasek’s protected communications, the
District was not justified in sending Vasek a letter which raised the objective possibility of
future discipline. Based on the Board’s position in Oakland USD, supra, PERB Decision
No. 1880, it may have been appropriate for the District to have contacted law enforcement, as
someone did in this case. However, because the lawfulness of this action was neither pleaded
10 At the time this proposed decision issued, the employee filed a petition to review the
Board’s decision in CSU East Bay, supra, PERB Decision No. 2391-H in the First Appellate
District Court, Division Four, case number A145123.
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in the PERB complaint nor litigated in this case, it is ultimately beyond the scope of this
proposed decision to answer this question more specifically.
Vasek has proven all of the elements of a prima facie case for retaliation, and the
District has not met its burden of proving that it would have issued the November 7, 2013
letter in the absence of Vasek’s protected activity. Therefore, the District’s conduct amounts
to unlawful retaliation in violation of EERA section 3543.5, subdivision (a).
REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA. When a
violation occurs, PERB typically aims to restore the status quo. (Baker Valley Unified School
District (2008) PERB Decision No. 1993, p. 16.) EERA section 3541.5, subdivision (c),
states:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
In cases where an employer unlawfully places documents into an employee’s personnel
file, the proper remedy is to rescind those documents, remove them from the personnel file,
and destroy them. (Alisal UESD, supra, PERB Decision No. 1412, p. 35-37; Yolo County
Superintendent of Schools (1990) PERB Decision No. 838, pp. 12-14.) In those cases, the
Board also ordered the employer to cease and desist from interfering with protected rights and
to post a notice of the violation. (Ibid.) These remedies are appropriate and are ordered here.
Accordingly, the District is ordered to rescind the November 7, 2013 letter, remove it from
Vasek’s personnel file, and destroy any copies in its possession. The District is further ordered
to cease and desist from retaliating against Vasek for engaging in protected activity and to post
a notice signed by an authorized representative and incorporating the terms of the order below.
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The notice posting shall include both a physical posting of paper notices at all places where
certificated bargaining unit members are customarily placed, as well as a posting by
“electronic message, intranet, internet site, and other electronic means customarily used by the
District to communicate with its employees in the [faculty] unit.” (Centinela Valley Union
High School District, supra, PERB Decision No. 2378, pp. 11-12, citing City of Sacramento
(2013) PERB Decision No. 2351-M.)11
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Mount San Jacinto Community College District (District) violated
Educational Employment Relations Act (EERA), Government Code section 3543.5,
subdivision (a). The District violated EERA by issuing Anthony G. Vasek the November 7,
2013 letter, described as a “final formal warning,” in retaliation for Vasek’s protected
communications.
Pursuant to EERA Section 3541.5, subdivision (c), the District is hereby is ORDERED
that the District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against Vasek for engaging in protected activity.
11 Vasek also requests that PERB order the District to send press releases to local media
outlets. I find no legal support for this remedy under the circumstances of this case and Vasek
has provided none. Moreover, I conclude that the ordered physical and electronic notice
postings adequately addresses Vasek’s interests.
Vasek also requests unspecified monetary remedies. As part of its authority to order
restoration of the status quo, PERB may order money damages such as back pay for lost
wages, plus interest, resulting from the violation. (City of Pasadena (2014) PERB Order
No. Ad-406-M, p. 13.) However, PERB lacks the authority to remedies designed to punish the
respondent. (Mark Twain Union Elementary School District (2003) PERB Decision No. 1548,
p. 8.) Here, there was no allegation or evidence of monetary losses resulting from the
November 7, 2013 letter. Therefore, I reject Vasek’s request for money damages.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the November 7, 2013 letter, remove it from Vasek’s personnel
file, and destroy it.
2. 	Within 10 workdays of the service of a final decision in this matter, post
at all work locations where notices to District faculty customarily are posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the District, indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of 30 consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Vasek.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered “filed” when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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