EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Employer Statements or Conduct; Threats

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It is logical to treat employer statements differently in the interference and discrimination contexts. In assessing a prima facie interference case, motive is normally not at issue, and PERB must determine whether an employer statement is itself a violation, irrespective of motive. In such cases, a manager’s statement “causes no cognizable harm to employee rights unless it contains threats of reprisal or force or promise of a benefit . . . Thus, the charging party must show that the employer’s communications would tend to coerce or interfere with a reasonable employee in the exercise of protected rights.” (County of Riverside (2010) PERB Decision No. 2119- M, p. 17, citations and internal quotation marks omitted.) In contrast, in a discrimination case, PERB must determine motivation, often from circumstantial evidence. Therefore, “context is always relevant,” and PERB looks at “any other” fact or circumstance that may help it resolve the fundamentally difficult task of determining intent. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11 and adopting proposed decision at p. 30].) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus.