GENERAL LEGAL PRINCIPLES; WAIVER – Union's Waiver of Employee or Organizational Rights

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The ALJ wrongly presumed the City Manager’s bias was extinguished by the passage of time. In the absence of Board precedent on this issue, the ALJ analogized to Board decisions addressing retaliation claims—specifically, when temporal proximity between protected activity by an employee and allegedly retaliatory conduct by an employer can constitute evidence of a causal connection between the two. The ALJ concluded that evidence of City Manager’s bias from 2013 was “too remote in time” to prove that he was still biased against IBEW four years later when he conducted IBEW’s unit determination hearing and rendered the decision on IBEW’s petition. In the context of retaliation allegations, the Board has found that “proximity in time between the protected activity and the adverse action goes to the strength of the inference of unlawful motive, but is not determinative by itself.” The Board found it logical to view timing with respect to bias allegations in the same manner, i.e., the timing nexus exists on a continuum, such that no particular amount of time is dispositive for a finding of bias. In other words, while the Board agreed with the ALJ’s decision to analogize to PERB’s precedent on retaliatory animus, it disagreed with the ALJ’s statement that a four-year gap is necessarily too long for animus or bias to remain, especially given that the Board has recognized that management’s first opportunity to act out of animus may not come for a significant period of time. Therefore, absent IBEW’s waiver, it would have been appropriate for the ALJ to weigh all the evidence as to whether the City Manager demonstrated a “clear disposition” against IBEW. (pp. 24-25.)