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

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Charging party relied heavily upon alleged management statements suggesting that unlawful animus could have been present at a sufficient level for such animus to qualify as a motivating or substantial factor behind his employer’s promotion decision. The proposed decision cited City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) for the proposition that PERB cannot consider manager statements as evidence of animus unless such statements are themselves a threat or reprisal. The Board disagreed and explained that City of Oakland does not categorically prohibit it from considering employer statements in context, as part of nuanced evaluation of an employer’s motive. Citing NLRB precedent, the Board held: “[A]n employer’s expression of views or opinions against a union, which cannot be deemed a violation in and of itself, can nonetheless be used as background evidence of antiunion animus on the part of the employer.” (CSC Holdings, LLC (2017) 365 NLRB No. 68, p. 17.) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus.