EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

Single Topic for Decision 2387M

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Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord (An employer’s spontaneous reaction or taking offense to personal criticism by a union representative or employee engaged in protected activity is not, by itself, determinative of unlawful motive. While evidence of unlawful motive that occurred outside the six-month limitation period cannot be used to establish an independent violation, it can serve as background evidence of a respondent’s motive for conduct that is part of a timely allegation. The Board considered evidence of the employer’s prior conduct in negotiations, including evidence of direct dealing with employees, surface bargaining and coercive statements by managers, to show anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Offering or conferring promotional opportunities or other employment benefits to an employee to work against an employee organization is an unfair practice and may serve as evidence of unlawful motive in a separate allegation that an employer has discriminated against a union officer by selecting her for layoff. Undisputed evidence that bargaining unit employee was made part of management’s bargaining team in negotiations against her own exclusive representative was probative evidence to show employer’s hostility to collective bargaining and, by inference, unlawful motive in later selecting union officer for layoff. Although employer threats or other coercive statements are analyzed as “interference” violations for which no showing of unlawful motive is required, it is well-settled that collateral evidence of an employer's coercive statements or conduct, even when occurring outside the six-month limitations period, may be properly considered as evidence of anti-union motivation for allegations that are within the applicable limitations period. The Board considered evidence of a manager’s coercive statements to other employees, as evidence of anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Although walking out of negotiations or a grievance meeting that is still in progress may be evidence of unlawful motive, manager who took offense to union’s statements and abruptly left negotiations was not probative evidence of animus because employer’s chief negotiator and other bargaining team members remained at the table and negotiations continued in the manager’s absence. A manager’s elimination of an alternative work schedule and telecommuting policy popular with employees shortly after the exclusive representative refused to agree to a minimum billable hours proposal championed by the same manager was evidence of the manager’s hostility towards the union and, by inference, the employer’s unlawful motive in later selecting a union officer for layoff. An employer may communicate directly with represented employees about employment matters, though it may not use these communications to alter or waive rights on negotiable subjects or undermine the authority of the exclusive representative. Employer’s presentation of its bargaining proposals to employees, even after representative objected, may be used to show employer hostility to the procedures of collective bargaining and, by inference, unlawful motive in later selection of union officer for layoff.