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504.14000 – Other/In General

Board found direct evidence of nexus in the form of Program Director’s well-documented disdain for UC-AFT and Program Instructors’ protected activity, in addition to suspicious timing and other circumstantial evidence of unlawful motive. Regardless of University decisionmaker’s stated motives, it was clear that his decision-making process was tainted by Program Director’s hostility to the University’s collective bargaining obligations in general and to UC-AFT in particular. Under the subordinate bias liability theory, unlawful motive of a supervisor, manager or other lower-level official may be imputed to the decision-maker responsible for authorizing an adverse action, when the lower-level official recommended taking adverse action, the recommendation was motivated by protected activity, and the recommendation was a motivating factor or proximate cause of the decision to take adverse action. Even where the decision-maker’s action was entirely free of animus, the employer will nonetheless be held liable, if the decision was influenced by the unlawful animus of the lower-level official. Thus, to the extent Program Director’s demonstrably anti-union views were a contributing factor in the University’s decision to close and subcontract the Young Musician’s Program, there is direct evidence of nexus or inherently discriminatory conduct. (p. 84.)