EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case

Single Topic for Decision 2177H

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* * * OVERRULED by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, where the Board held that an employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees, unlawfully discriminates and interferes with protected rights. * * *

To establish a prima facie case under the Campbell discrimination standard, the charging party must show that the employer engaged in conduct which could have harmed employee rights to some extent. Granting a benefit only to non-represented employees does not establish discrimination absent additional facts showing either: (1) the employer suggested employees would lose a benefit if they engaged in protected activity; or (2) the benefit could not be obtained through collective bargaining. No prima facie case when charging party failed to show that employer had rejected bonus proposals or indicated that bonus was not obtainable through collective bargaining.