Proving retaliation for engaging in protected union activities Rockville Centre Teachers Asso. v PERB, 281 AD2d 425 A Public Employment Relations Board [PERB] Administrative Law Judge [ALJ] ruled that the Rockville Centre Union Free School District had dismissed an employee in retaliation for her union activity — an unfair labor practice under the Taylor Law. PERB reversed its ALJ's determination and the Rockville Teachers Association appealed PERB's decision. The Appellate Division first noted that the employee involved was serving a probationary period and that a probationary employee could be terminated for any reason as long as the termination was not made in bad faith, constituted a violation of statutory or decisional law, or was for unconstitutional or illegal reasons. As the Association contended that school district had terminated the employee because of her protected union activity, it had the burden of proving each of the following elements in order to prevail before PERB: 1. That the employee was engaged in protected activity; 2. That such activity was known to the person making the adverse employment decision; and 3. That the action would not have been taken but for the protected activity. The court said that in order to annul an administrative determination rendered after a hearing, a court must find that the record lacks substantial evidence to support the administrative determination. The Appellate Division said that there was substantial evidence in this record to support PERB's determination that the Association failed to sustain its burden of proof in meeting the third prong of test — the so-called "but for" test — in view of the evidence presented by the district to support its decision to terminate the employee. What was the district's proof? The court said that the school district introduced evidence that the employee had "failed to follow proper school procedures, failed to follow instructions, and failed to adequately safeguard the safety of a student who subsequently fell down a flight of stairs." This, in the view of the court, provided sufficient reasons to justify the district's terminating the individual's probationary employment and thus permitting PERB to conclude that the Association failed to meet the "but for" test. Significantly, the Appellate Division said that "there is no evidence to establish a nexus between the employee's union activity and the decision to terminate her employment." In other words, the probationary employee would have been terminated even if she had not engaged in a protected activity. The Appellate Division also considered the question of the deference due findings by an ALJ by PERB. The opinion states that although the findings of an ALJ made after a hearing are entitled to deference upon review by an administrative board such as PERB, a board is entitled to make its own findings provided that they are supported by substantial evidence. In this instance the Appellate Division found that PERB's substituting its own finding for those of its ALJ was supported by substantial evidence in the record.
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