CASE PROCESSING PROCEDURES; CHARGE – In General/Prima Facie Case
Single Topic for Decision 2283E
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1100.01000 – In General/Prima Facie Case
An employee organization’s duty of fair representation runs to the employee, and is enforced by a charge against the employee organization, not against the employer. A prima face case of retaliation is established by allegations that the employee engaged in protected activity, the employer knew thereof, the employer took action against or adverse to the interest of the employee, and the employer acted “because of” the employee’s protected activity. The motive (“because of”) element is established by direct proof or inferred from the record as a whole. An inference of unlawful motive, i.e., the “nexus” between the protected conduct and the employer’s challenged action, may be found in facts which suggest an unlawful motive, including suspicious timing, disparate treatment, departure from established policies and procedures, and employer justifications which are exaggerated, inadequate, inconsistent or contradictory.