EMPLOYER DISCRIMINATION; DEFENSES – Inefficiency or Incompetence

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Employer argued that the prime factors that disqualified employee for promotive position were his temperament, performance during the interview, work ethic, and work product. The record only showed employee being argumentative, or having conflicts with others, while performing union duties; the ALJ found no substance to allegations of employee creating workplace conflicts that did not implicate his union duties. Stewards, in fulfilling a union’s statutory duty to represent all bargaining unit employees, are often called on “to resolve divergent and often conflicting interests,” and in that role “may resort occasionally during representational meetings to intemperate speech or less than civil conduct.” (State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 7.) Because stewards’ representational duties often bring them into conflict with management, precedent affords them “significant latitude in their representational speech and conduct.” (Ibid.; see also Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 7 [individual employee’s criticism of management or working conditions is protected activity when its purpose is to advance other employees’ interests or when it is a logical extension of group activity].) Employer did not identify specific facts the ALJ overlooked tending to show workplace conflicts unrelated to employee’s union duties. Moreover, interview panel members’ opinions about employee’s temperament were likely based at least in part on conflict arising from the inherently conflictual job of representing employees in complaints against management, as interview panel members and other decision-makers were aware of employee’s frequent and public representational activities on behalf of himself and others.