UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION – In General

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In evaluating a discrimination or retaliation claim, PERB generally applies the same test irrespective of whether the respondent is an employer or a union. In order to establish a prima facie case of retaliation, a charging party must allege facts showing that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes these factors, certain fact patterns nonetheless allow a respondent to prove, by a preponderance of the evidence, that it would have taken the same action even absent the protected activity. (Id. at pp. 15-16.) Additionally, in an unfair practice charge alleging that a union discriminated or retaliated against protected activity, the charging party must allege facts showing that the union’s conduct impacted the employer-employee relationship. (California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S, pp. 27-28; California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S, pp. 13-17, citing Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)