EMPLOYER DISCRIMINATION; DEFENSES – In General
Single Topic for Decision 2747M
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505.01000 – In General
To resolve a union’s retaliation claim, the Board must consider the employer’s motivations. In doing so, the Board keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.) The City prevailed on its affirmative defense where Board found that the Union established that discriminatory animus was a motivating factor in the Fire Chief’s decision to modify the composition of the City’s elite swiftwater rescue team (SWR Team), but the City demonstrated that it would have taken the same action, at the same time, even absent the Union’s protected activities.