All notes for Subtopic 504.05000 – Union Activity of Discriminatee
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2806E | * * * JUDICIAL APPEAL PENDING * * * Visalia Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee The Board found that the District’s Notice of Paid Administrative Leave indicated animus toward employee/union president’s protected activity. The Notice barred employee from entering District property, where it knew the union held its meetings, and from contacting District employees about the investigation, which would undermine employee’s ability to prepare for her investigatory interview and mount her own defense. Despite being advised of these problems, the District did not immediately modify the prohibitions and instead kept them in place for almost six weeks. (p. 35.) more or view all topics or full text. | 46 | 115 | 02/07/22 |
| 2806E | * * * JUDICIAL APPEAL PENDING * * * Visalia Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Principal’s comment to employee who was nominated for union vice president supported an inference of animus. When employee told the principal about her nomination, the principal asked employee not to accept it. Whether the principal expressly or impliedly asked employee not to accept the nomination, in either instance her conduct exhibited hostility towards employee’s union activity. (pp. 34-35.) more or view all topics or full text. | 46 | 115 | 02/07/22 |
| 1742M | Contra Costa County Health Services Department 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Even if charging party’s statement to a fellow charge nurse that he was pro-union and had served as a union steward during previous employment experiences constituted protected activity, the charge failed to demonstrate that the county knew of charging party’s statements and that the county terminated charging party because of his protected activity. While charging party’s termination came within three weeks of his protected statement, charging party received his first negative evaluation before he made the statement. The charge failed to present any other nexus factors. (adopting warning letter at p. 3.) more or view all topics or full text. | 29 | 65 | 01/26/05 |
| 1738M | City of San Diego 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Even if charging party’s statement to a fellow charge nurse that he was pro-union and had served as a union steward during previous employment experiences constituted protected activity, the charge failed to demonstrate that the county knew of charging party’s statements and that the county terminated charging party because of his protected activity. While charging party’s termination came within three weeks of his protected statement, charging party received his first negative evaluation before he made the statement. The charge failed to present any other nexus factors. (adopting warning letter at p. 3.) more or view all topics or full text. | 29 | 57 | 01/20/05 |
| 2804E | South Orange County Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee The Board found that the amended charge alleged facts showing the school district had animosity toward Charging Party’s EERA-protected activities. Charging Party’s supervisor denied her request for leave to attend the union’s annual conference. Several weeks later, Charging Party’s supervisor complained to the school district about the number of union meetings Charging Party attended. (p. 16.) more or view all topics or full text. | 46 | 111 | 01/28/22 |
| 2797E | Carpinteria Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee “Where the employer’s words or actions reveal that the adverse action was taken in response to the employee’s protected activity, such conduct serves as direct evidence of unlawful motive.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 26.) The Board found direct evidence of unlawful motive because the disciplinary notices were explicitly based in part on protected activity. more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2760S | State of California (Correctional Health Care Services) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Premature cessation of employee’s out-of-class (OOC) assignment relevant as evidence of unlawful intent. The record amply supports finding that employee’s union duties motivated State employer to end OOC assignment prematurely. When employee requested union leave to represent another employee in an internal affairs investigation, employer told HR staff that he was ending employee’s OOC assignment immediately as he was concerned that employee’s representational duties would interfere with his completion of the OOC duties. Employee had served for just over two weeks in the OOC position, an assignment scheduled to last for 120 days or until the permanent position was filled. Concern that employee’s representational duties would interfere with performing the OOC position dues is an unlawful rationale, as the Dills Act protects employee’s work as a union steward. Forcing an employee to give up a temporary promotive position—and thereby lessen his chances to fill the position permanently—demonstrates an inclination to levy a heavy price on those exercising protected rights. (Cf. State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16 [resistance to requests for union-related leave evidence of CCHCS’s animus].) Moreover, prematurely removing employee from the OOC position assignment and leaving the position vacant for nine months runs counter to established practice and thus serves as substantial evidence of unlawful motive. more or view all topics or full text. | 45 | 91 | 04/12/21 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee The University’s decision to close and subcontract the Young Musician’s Program may be fairly characterized as “inherently discriminatory” or what the Campbell and Great Dane courts referred to as “discrimination in its simplest form.” (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423, citing NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, 32.) While the layoff and subcontracting decisions did not facially distinguish between groups of employees on the basis of protected activity, as a response to the Churning Grievance, they “directly and unambiguously penalize[ ] or deter[ ] protected activity” by laying off employees and replacing them with a non-unionized workforce to perform what are, essentially, the same duties. (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757-758.) Moreover, laying off employees severs the employment relationship altogether and thus “creat[es] visible and continuing obstacles to the future exercise of employee rights,” while wholesale replacement of unionized employees with a non-union workforce has “far reaching effects which could hinder future bargaining,” because it negates employee choice and removes the very basis for collective bargaining. (Esmark, Inc. v. NLRB (7th Cir. 1989) 887 F.2d 739, 748.) Because we find that Program Director’s animus can be imputed to University’s decisionmaker inasmuch as it prompted his proposal and eventual decision to layoff and subcontract the Program, the University’s conduct also demonstrates hostility to the process of collective bargaining itself and makes it appear futile in the eyes of employees. (pp. 88-89.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Board found direct evidence of nexus in the form of Program Director’s well-documented disdain for UC-AFT and Program Instructors’ protected activity, in addition to suspicious timing and other circumstantial evidence of unlawful motive. Regardless of University decisionmaker’s stated motives, it was clear that his decision-making process was tainted by Program Director’s hostility to the University’s collective bargaining obligations in general and to UC-AFT in particular. Under the subordinate bias liability theory, unlawful motive of a supervisor, manager or other lower-level official may be imputed to the decision-maker responsible for authorizing an adverse action, when the lower-level official recommended taking adverse action, the recommendation was motivated by protected activity, and the recommendation was a motivating factor or proximate cause of the decision to take adverse action. Even where the decision-maker’s action was entirely free of animus, the employer will nonetheless be held liable, if the decision was influenced by the unlawful animus of the lower-level official. Thus, to the extent Program Director’s demonstrably anti-union views were a contributing factor in the University’s decision to close and subcontract the Young Musician’s Program, there is direct evidence of nexus or inherently discriminatory conduct. (p. 84.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee In Coast Community College District (1982) PERB Decision No. 251, the Board distinguished between the Carlsbad interference and Novato discrimination standards, but also explained that, employer conduct directed against union officials or organizers may be appropriately analyzed under either or both standards, as such conduct not only constitutes discrimination, but also “clearly interferes with the right of employees to form and participate in employee organizations.” (Id. at p. 20; Carlsbad Unified School District (1979) PERB Decision No. 89; Novato Unified School District (1982) PERB Decision No. 210.) Accordingly, under PERB precedent, and unlike private-sector precedent, such conduct may be deemed “inherently destructive” for either a discrimination or interference allegation. (p. 60, fn. 25.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2637S | State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Union presented specific evidence of supervisor’s hostility towards employee’s union activity, namely her embittered response to employee during a discussion regarding after-hours union duties. (p. 15) more or view all topics or full text. | 43 | 164 | 04/17/19 |
| 2637S | State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Because it can be difficult to “show the true character” of an employer’s motivations, PERB has routinely relied on evidence of prior unfair practices, including events occurring before the six-month statute of limitations or outside the “four corners” of the charge, to determine whether a respondent acted for an unlawful motive. (p. 17) more or view all topics or full text. | 43 | 164 | 04/17/19 |
| 2637S | State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee The Board will ascribe significant weight to evidence of prior demonstrations of antipathy towards union activists in attempting to identify the true motivation for an adverse action. (p. 17) more or view all topics or full text. | 43 | 164 | 04/17/19 |
| 2605E | Mount San Jacinto Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2605E | Mount San Jacinto Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Where employee’s protected email was impetus for employer’s adverse action, employer did not meet its burden to prove that it would have taken same action in the absence of employee’s protected activity. (p. 20.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2612M | County of Lassen 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.) more or view all topics or full text. | 43 | 102 | 12/19/18 |
| 2453E | Cabrillo Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee 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. | 40 | 57 | 09/17/15 |
| 2349M | Santa Clara Valley Water District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee An employer’s decision to deny an employee’s request for reclassification was not based on the employee’s union activity where the decision maker had denied 18 of the last 20 requests for classification as part of a general policy of redistributing employee duties to achieve costs-savings rather than grant reclassifications. more or view all topics or full text. | 38 | 96 | 12/19/13 |
| 2121M | Omnitrans 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Admittedly taking adverse action against an employee because of the employee’s protected activity provides direct evidence of the employer’s unlawful motivation and is sufficient in itself to establish the required nexus between the employee’s protected activity and the employer’s adverse action. Prima facie case of retaliation established when employer fired employee in part for absences on days when employee was conducting union business. more or view all topics or full text. | 34 | 110 | 06/25/10 |
| 1697H | Trustees of the California State University 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Cornelius did not state facts showing a nexus between her protected conduct (signing up for steward training) and the adverse actions (notice of termination and refusal to hire her for other positions). Rather, evidence shows that CSU approved her steward training and that Cornelius was terminated for misconduct.) more or view all topics or full text. | 28 | 264 | 09/30/04 |
| 1674E | Fresno County Office of Education 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee 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. | 28 | 219 | 08/19/04 |
| I055M | County of San Joaquin (Health Care Services) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Injunctive relief granted where Board found reasonable cause to believe that employer suspended employee because he was union’s primary organizer. Timing of employee’s suspension during election period coupled with employer’s vague and ambiguous justifications for suspension established the nexus required for a prima facie case. more or view all topics or full text. | 25 | 32109 | 09/05/01 |
| 1469E | Los Angeles Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Employees tenure as union site's chapter chair, filing of previous unfair practice charge and various discussions with principal on behalf of fellow teachers sufficient to establish protected activity. more or view all topics or full text. | 26 | 33023 | 11/29/01 |
| 1413S | State of California (Department of Social Services) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Review of circumstances to be examined in determining whether nexus was present, provided insufficient evidence to support a charge that Clayton's dismissal was the result of his protected activities; pp. 10-15, proposed dec. more or view all topics or full text. | 25 | 32008 | 10/19/00 |
| 1159H | Regents of the University of California (Higgins) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Charging party is not protected from an investigation by her employer merely because she is acting as a union steward; p. 2, warning letter. more or view all topics or full text. | 20 | 27112 | 06/18/96 |
| 1087H | Regents of the University of California (Costa) 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Complaints over procedures for the use of time clocks over a two year time in which Department manager stated was an issue that was "a thorn in his side" and timing of the decision and implementation of the charging party's layoff demonstrated an inference of unlawful motive; pp. 10-11, proposed dec. more or view all topics or full text. | 19 | 26065 | 03/01/95 |
| 0368E | San Diego Community College District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee An inference of unlawful motivation is raised by evidence of board knowledge of protected activity, threatening statements of District administrator following speech, proximity in time, belated justification and disparate treatment; pp. 19, 21. more or view all topics or full text. | 8 | 15009 | 12/22/83 |
| 0104E | Santa Clara Unified School District 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Discrimination found where teacher-applicant sought union advice regarding part-time position and subsequently was denied position; pp. 15-16. more or view all topics or full text. | 3 | 10124 | 09/26/79 |