EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Union Activity of Discriminatee

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Premature cessation of employee’s out-of-class (OOC) assignment relevant as evidence of unlawful intent. The record amply supports finding that employee’s union duties motivated State employer to end OOC assignment prematurely. When employee requested union leave to represent another employee in an internal affairs investigation, employer told HR staff that he was ending employee’s OOC assignment immediately as he was concerned that employee’s representational duties would interfere with his completion of the OOC duties. Employee had served for just over two weeks in the OOC position, an assignment scheduled to last for 120 days or until the permanent position was filled. Concern that employee’s representational duties would interfere with performing the OOC position dues is an unlawful rationale, as the Dills Act protects employee’s work as a union steward. Forcing an employee to give up a temporary promotive position—and thereby lessen his chances to fill the position permanently—demonstrates an inclination to levy a heavy price on those exercising protected rights. (Cf. State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16 [resistance to requests for union-related leave evidence of CCHCS’s animus].) Moreover, prematurely removing employee from the OOC position assignment and leaving the position vacant for nine months runs counter to established practice and thus serves as substantial evidence of unlawful motive.