All notes for Subtopic 504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

DecisionDescriptionPERC Vol.PERC IndexDate
2712M City and County of San Francisco
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Union’s allegations regarding the employer’s unusual, discriminatory, or otherwise suspicious conduct surrounding job reclassification constituted an adequate factual basis to state a prima facie case that the employer may have been substantially motivated by unlawful animus in its later adverse actions against employee. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17 [earlier events are relevant in assessing a respondent’s motive]; County of Santa Clara (2019) PERB Decision No. 2629-M, adopting proposed decision at p. 30 [“Context is always relevant in determining motive.”].) (pp. 26-27.) Although employer’s issuance of a performance improvement plan and related written warning and letter of instruction occurred more than six months prior to the amended charge, those actions likely bear on the ultimate determination of employer motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17.) However, PERB did not consider whether the complaint should allege those earlier adverse actions to constitute MMBA violations, because they appeared to have occurred outside the six-month statute of limitations. (p. 20, fn. 4.) more or view all topics or full text.
05/06/20
2611M County of Orange
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Separate but related unfair practices may provide circumstantial evidence of union animus, thus supporting a finding that adverse actions were taken because of that animus. (p. 17) Two supervisors involved in or aware of the employer’s prior interference with and unilateral changes to representation rights consulted on an investigation of alleged misconduct by an employee representative, resulting in discipline. The ALJ appropriately considered these relevant facts, in addition to other nexus elements, to impute union animus to the supervisors. (pp. 17-18.) more or view all topics or full text.
4310112/19/18
2387M City of Oakland
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord (An employer’s spontaneous reaction or taking offense to personal criticism by a union representative or employee engaged in protected activity is not, by itself, determinative of unlawful motive. While evidence of unlawful motive that occurred outside the six-month limitation period cannot be used to establish an independent violation, it can serve as background evidence of a respondent’s motive for conduct that is part of a timely allegation. The Board considered evidence of the employer’s prior conduct in negotiations, including evidence of direct dealing with employees, surface bargaining and coercive statements by managers, to show anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Offering or conferring promotional opportunities or other employment benefits to an employee to work against an employee organization is an unfair practice and may serve as evidence of unlawful motive in a separate allegation that an employer has discriminated against a union officer by selecting her for layoff. Undisputed evidence that bargaining unit employee was made part of management’s bargaining team in negotiations against her own exclusive representative was probative evidence to show employer’s hostility to collective bargaining and, by inference, unlawful motive in later selecting union officer for layoff. Although employer threats or other coercive statements are analyzed as “interference” violations for which no showing of unlawful motive is required, it is well-settled that collateral evidence of an employer's coercive statements or conduct, even when occurring outside the six-month limitations period, may be properly considered as evidence of anti-union motivation for allegations that are within the applicable limitations period. The Board considered evidence of a manager’s coercive statements to other employees, as evidence of anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Although walking out of negotiations or a grievance meeting that is still in progress may be evidence of unlawful motive, manager who took offense to union’s statements and abruptly left negotiations was not probative evidence of animus because employer’s chief negotiator and other bargaining team members remained at the table and negotiations continued in the manager’s absence. A manager’s elimination of an alternative work schedule and telecommuting policy popular with employees shortly after the exclusive representative refused to agree to a minimum billable hours proposal championed by the same manager was evidence of the manager’s hostility towards the union and, by inference, the employer’s unlawful motive in later selecting a union officer for layoff. An employer may communicate directly with represented employees about employment matters, though it may not use these communications to alter or waive rights on negotiable subjects or undermine the authority of the exclusive representative. Employer’s presentation of its bargaining proposals to employees, even after representative objected, may be used to show employer hostility to the procedures of collective bargaining and, by inference, unlawful motive in later selection of union officer for layoff. more or view all topics or full text.
392308/04/14
2453E Cabrillo Community College District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. more or view all topics or full text.
405709/17/15
2302H Regents of the University of California
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
In assessing the evidence presented in a retaliation case, PERB’s task is to determine whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive. Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. PERB does not determine whether the employer had just cause to take adverse action, nor whether it was correct in its determination that the employee engaged in misconduct. Although there was direct evidence that the employer was motivated in part by employee’s protected activity in deciding to take adverse action, employer established that it would have taken the same action even if employee had not engaged in the protected activity. The evidence further failed to establish that the employer’s true motivation in deciding to suspend and terminate employee was based upon his protected activity rather than on its expressed concerns over his behavior in the workplace. more or view all topics or full text.
12/21/12
1746E Los Angeles Unified School District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
No evidence of nexus was provided to show that the audit or notice of recommended discipline were a result of Fykes filing unfair practice charges. more or view all topics or full text.
297002/01/05
1674E Fresno County Office of Education
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership more or view all topics or full text.
2821908/19/04
1641M City of Milpitas
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Charging party’s history of filing complaints some of which were denied does not warrant an inference of discrimination where there was no evidence of ongoing conspiracy and employer had credible explanation for alleged disparate treatment. more or view all topics or full text.
2817506/14/04
1579S State of California (Department of Corrections) * * * VACATED by State of California (Department of Corrections (2006) PERB Decision No. 1826-S
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Vacated by PERB Decision No. 1826-S. Unlawful animus may be imputed where an employment action is taken, even innocently, based on inaccurate or biased information. more or view all topics or full text.
284712/31/03
1524M County of San Joaquin (Health Care Services)
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Nexus demonstrated by decision to discipline employee for bad attitude because the attitude had been provoked by supervisors retaliatory investigation of employee; proposed dec., p. 29. more or view all topics or full text.
277405/14/03
1442E Fremont Unified School District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Previous PERB charges offered as "evidence of previous collusion" insufficient to assist charging party in establishing a prima facie violation of EERA. more or view all topics or full text.
253208206/07/01
1512E Oakland Unified School District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Without other evidence of discrimination, the fact that charging party acted as a union advocate two years prior to her termination fails to establish the required “nexus” necessary for a prima facie case. more or view all topics or full text.
274503/25/03
1237E Los Rios College Federation of Teachers (Deglow)
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Union's request for sanctions against charging party is not a finding of discrimination. more or view all topics or full text.
222902012/02/97
1087H Regents of the University of California (Costa)
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Although timing of adverse action alone is sufficient to justify an inference of unlawful motivation it, may when coupled with other factors, constitute a basis for such conclusion. more or view all topics or full text.
192606503/01/95
1953M Carmichael Recreation and Park District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Charging Party failed to prove that a park district discriminated against two employees because of their protected activity where the only factor raising an inference of unlawful animus is timing. more or view all topics or full text.
326904/17/08
1945E Journey Charter School * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. more or view all topics or full text.
324502/28/08
1946E San Mateo County Office of Education
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
The central dispute surrounds whether or not the charging party alleged sufficient facts to support the allegation that his employer’s reprimand was issued because of his protected conduct and thereby retaliation. more or view all topics or full text.
324802/29/08
0145E Marin Community College District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Supervisor's prior history of antipathy towards union activist is evidence of anti-union motivation. more or view all topics or full text.
41119811/19/80
0994E Lake Tahoe Unified School District
504.1000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
Finding of nexus was bolstered by allegations in a previous unfair practice charge that referred to a dozen adverse actions allegedly taken in retaliation. The complaint and settlement agreement in that case were attached to the instant charge. more or view all topics or full text.
172408904/30/93