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

Single Topic for Decision 2610H

View all topics for Decision 2610H

Full Decision Text (click on the link to view): Full Text

The University’s decision to close and subcontract the Young Musician’s Program may be fairly characterized as “inherently discriminatory” or what the Campbell and Great Dane courts referred to as “discrimination in its simplest form.” (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423, citing NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, 32.) While the layoff and subcontracting decisions did not facially distinguish between groups of employees on the basis of protected activity, as a response to the Churning Grievance, they “directly and unambiguously penalize[ ] or deter[ ] protected activity” by laying off employees and replacing them with a non-unionized workforce to perform what are, essentially, the same duties. (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757-758.) Moreover, laying off employees severs the employment relationship altogether and thus “creat[es] visible and continuing obstacles to the future exercise of employee rights,” while wholesale replacement of unionized employees with a non-union workforce has “far reaching effects which could hinder future bargaining,” because it negates employee choice and removes the very basis for collective bargaining. (Esmark, Inc. v. NLRB (7th Cir. 1989) 887 F.2d 739, 748.) Because we find that Program Director’s animus can be imputed to University’s decisionmaker inasmuch as it prompted his proposal and eventual decision to layoff and subcontract the Program, the University’s conduct also demonstrates hostility to the process of collective bargaining itself and makes it appear futile in the eyes of employees. (pp. 88-89.)