All notes for Subtopic 504.12000 – Employer Statements or Conduct; Threats

DecisionDescriptionPERC Vol.PERC IndexDate
2716E * * * JUDICIAL APPEAL PENDING * * * Alliance College-Ready Public Schools, et al.
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Coercive statements made at or around time of adverse action are evidence of unlawful motive, whether or not the complaint alleges that the statements are discrete unfair practice allegations. (Page 16.) more or view all topics or full text.
05/18/20
2716E * * * JUDICIAL APPEAL PENDING * * * Alliance College-Ready Public Schools, et al.
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Where employer is determined to stamp out a nascent union, Board will infer for purposes of analyzing a prima facie case of discrimination that key decisionmakers were inclined to effectuate the employer’s policies by targeting union adherents. (Page 15.) more or view all topics or full text.
05/18/20
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
It is logical to treat employer statements differently in the interference and discrimination contexts. In assessing a prima facie interference case, motive is normally not at issue, and PERB must determine whether an employer statement is itself a violation, irrespective of motive. In such cases, a manager’s statement “causes no cognizable harm to employee rights unless it contains threats of reprisal or force or promise of a benefit . . . Thus, the charging party must show that the employer’s communications would tend to coerce or interfere with a reasonable employee in the exercise of protected rights.” (County of Riverside (2010) PERB Decision No. 2119- M, p. 17, citations and internal quotation marks omitted.) In contrast, in a discrimination case, PERB must determine motivation, often from circumstantial evidence. Therefore, “context is always relevant,” and PERB looks at “any other” fact or circumstance that may help it resolve the fundamentally difficult task of determining intent. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11 and adopting proposed decision at p. 30].) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus. more or view all topics or full text.
01/22/20
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
While PERB considers all management statements, among many other factors, in assessing nexus (and in assessing the employer’s affirmative defense in mixed motive cases), the persuasive value of particular management statements will vary depending on differing contexts. more or view all topics or full text.
01/22/20
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Applying City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) in recent decisions, PERB explained that an employer’s statements may or may not be evidence of an unlawful motivation, depending on the circumstances, irrespective of whether they qualify as threats or promises. (See City of Arcadia (2019) PERB Decision No. 2648-M, p. 30; State of California (Department of Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16; California Virtual Academies (2018) PERB Decision No. 2584, p. 29.) more or view all topics or full text.
01/22/20
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Charging party relied heavily upon alleged management statements suggesting that unlawful animus could have been present at a sufficient level for such animus to qualify as a motivating or substantial factor behind his employer’s promotion decision. The proposed decision cited City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) for the proposition that PERB cannot consider manager statements as evidence of animus unless such statements are themselves a threat or reprisal. The Board disagreed and explained that City of Oakland does not categorically prohibit it from considering employer statements in context, as part of nuanced evaluation of an employer’s motive. Citing NLRB precedent, the Board held: “[A]n employer’s expression of views or opinions against a union, which cannot be deemed a violation in and of itself, can nonetheless be used as background evidence of antiunion animus on the part of the employer.” (CSC Holdings, LLC (2017) 365 NLRB No. 68, p. 17.) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus. more or view all topics or full text.
01/22/20
2603M City of Yuba City
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Statement that employer intended to provide a one-time bonus to all units that negotiated a contract did not evidence intent to discriminate against unit that engaged in protected activity, where there was no indication that the unit that engaged in protected activity could not have obtained the bonus had it reached an agreement. more or view all topics or full text.
439012/12/18
2584E California Virtual Academies
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
An employer’s clear and unequivocal hostility to collective bargaining, even if accomplished without threats of reprisal or promises of benefit, gives rise to a logical inference that it might target union supporters for adverse action. In any event, criticism of protected solicitation of union support and membership as possibly illegal, a breach of “trust,” and involving “lies” and “trick[s],” sailed well outside the safe harbor for protected employer speech. more or view all topics or full text.
435409/21/18
2584E California Virtual Academies
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Anti-union animus of employer’s highest-ranking official, even if she did not make the decision to take an adverse action, is probative of the employer’s culture and the atmosphere in which the decision was made. more or view all topics or full text.
435409/21/18
2450E Jurupa Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
A comment by a District official during her hearing testimony that “[a]t this point, I disbelieve most everything [charging party] says” does not demonstrate bias or animosity against charging party sufficient to constitute improper motive for taking adverse action, since the comment was made after she was involved in investigating the employee’s work conduct, and there was no evidence that she disbelieved employee when she was conducting the investigations. Hostile comments that do not bear on protected activities or a protected group are insufficient to demonstrate animus. Hostility by manager arose because she believed charging party was untruthful, not because of protected activity. A District official’s categorical declaration that allegations in a grievance over working conditions are completely false, made before thoroughly investigating the complaints, suggests improper bias, even when the grievance includes a personal accusation concerning the official’s marital fidelity. District official’s hostility toward employees who filed public complaint is demonstrated by her animus toward the attorney representing the employees. There is nothing unlawful in a manager denying accusations that he or she believes to be untrue, provided the communication does not also convey a threat or promise of benefit. more or view all topics or full text.
404608/31/15
2458E Jurupa Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Discriminatory motivation was evidenced by a District issuing a written communication to employees, including charging party, that criticized employees for filing a group grievance with the District’s governing board a few days earlier. more or view all topics or full text.
407510/23/15
2494M City of Davis
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
An illegal motive may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. more or view all topics or full text.
413306/30/16
2452E Hartnell Community College District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Employee’s allegation that human resources official told him that she would choose his union representative was evidence of employer hostility to protected rights and thus supported inference that employee was later terminated in retaliation for protected activity. more or view all topics or full text.
405609/04/15
2420E Jurupa Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
A manager’s mere dislike of a charging party does not, in and of itself, demonstrate nexus. From the school principal’s e-mail stating he was “taking out a hit on” charging party, it is apparent that the school principal harbored a bias against charging party, but not because of charging party’s protected activity. The bias instead stemmed from the principal’s belief that he was “bad for kids.” Such bias does not violate EERA. more or view all topics or full text.
3914104/23/15
2337E Palo Verde Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Where a supervisor who has displayed animus discharges an employee, with the support and ratification of the supervisor’s own supervisor, who himself displays animus, we attribute both supervisors’ actions and animus to the employer. Whether or not an employer is required to provide reasons for discipline or discharge, or has a practice thereof, where the employer does offer reasons, the reasons may be considered more or view all topics or full text.
386910/29/13
2309E Jurupa Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
A retraction of a prior coercive statement which did not address the coercive aspects of the prior statement and was not tendered within a few days, at most, of the prior coercive statement was both inadequate and untimely, and thus not made in a manner that completely nullified the coercive effects of the earlier statement. more or view all topics or full text.
03/08/13
2237S State of California (Board of Equalization)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
A corrective memorandum referencing inappropriate actions taken by charging party “regarding the grievance issue” was not direct evidence of unlawful motive; where charging party admitted that his requests for union time off from work to prepare grievances were never denied, charging party failed to establish that a corrective memorandum issued to charging party advising him that grievances were to be prepared outside the work area constituted evidence of unlawful motive. more or view all topics or full text.
3612102/07/12
2244E Los Angeles Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Allegation that principal told substitute teacher that cited incident was not the true reason for her removal could support a finding of inconsistent or contradictory justification or the offering of vague and ambiguous reasons. In addition, allegations that principal told teacher that she had “had problems with other principals in the past and mustn’t take it out on him because of what others dictate” could support a finding that the decision was made by someone else with unlawful motivation. more or view all topics or full text.
3613302/29/12
2241E Lake Elsinore Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
School Districts expressed reasons for non-reelecting probationary teacher because of his lack of support for co-teaching model does not constitute direct evidence of unlawful motivation. more or view all topics or full text.
3612902/27/12
2184M County of Riverside
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Evidence failed to establish that management held animus toward union representation, where witnesses could not recall any statements by management about not using representation. Statement that employer liked employees to resolve issues within the department insufficient, where record showed that employer was responsive to union and no employee was treated adversely as a result of union involvement. more or view all topics or full text.
36206/07/11
2140H Trustees of the California State University (San Marcos)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Charge failed to allege facts establishing that a supervisor’s critical comments about an employee’s work performance were motivated by the employee’s filing of a grievance and unfair practice charge. more or view all topics or full text.
3416511/02/10
2086E Garden Grove Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Charging party failed to establish that supervisor’s statements that she should go into a different line of work and that he believed that she would be placed into a peer review assistance program in the future demonstrated employer’s animus toward protected activities. more or view all topics or full text.
342512/28/09
2070H Trustees of the California State University (San Marcos)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Supervisor’s statements to union steward that he took union’s transfer of work complaint personally, the complaint could lead to unit members not being promoted and warning to steward that “it is not a good thing to be getting involved in these kind of topics” indicated union animus. Manager’s comment that he did not want the union business representative “around here” indicated union animus. more or view all topics or full text.
3317310/15/09
1995H Regents of the University of California (Los Angeles)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level officials. In this case, union animus held by employee’s supervisors is not imputed to decision maker, where decision maker had no knowledge of supervisors’ animus and never consulted them regarding layoff decision. more or view all topics or full text.
332512/19/08
2039M Calaveras County Water District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Nexus not established by board member comment that employees would be fired if they went on strike, because board member was not aware of employee's protected activity and had no role in the adverse action. more or view all topics or full text.
3311006/19/09
1979C Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
An employer’s statement that it is 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. Employer’s written statement that the employee was being suspended for using the employer’s e-mail system “to conduct union business” and for using the employer’s facilities “for union business without prior authorization” constituted direct evidence of the employer’s unlawful motivation sufficient to establish nexus. more or view all topics or full text.
3215110/07/08
1971M City of Torrance
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Mayor’s statements to union president that he would hold president personally responsible for the union’s election campaign against him and that he could only work with the union if she were not president indicated mayor’s animus toward union. Mayor’s animus imputed to employer City because mayor had authority over employer’s decision to seek release time reimbursement and threaten union president with discipline. more or view all topics or full text.
3212608/21/08
1880E Oakland Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
A teacher was labeled as not a “team player” and was questioned by school administrators about his “commitment” to his school and the need to involve “outsiders” when he sought union representation; these facts were all evidence of anti-union animus by the District. more or view all topics or full text.
314501/11/07
1852E Contra Costa Community College District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
In determining whether the District’s interview questions concerned protected activity, the issue is whether a reasonable person would have understood the set of questions to be probing allegiance to faculty or management. more or view all topics or full text.
3015408/21/06
1714E Simi Valley Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
On several occasions, the principal expressed, and other teachers parroted, their mistaken belief that the teacher had filed a grievance about the independent study program.) The memo was the first time that the principal expressed her concerns about the teacher’s work after 6 months of silent visits. The principal’s testimony that the Assistant Superintendent of Personnel Services approved the memo to the teacher scheduling 26 hours of observation conflicts with the testimony of the Assistant Superintendent, who stated that the draft he reviewed was missing the proposed hours of observation. Although the principal testified that she had concerns about the teacher’s teaching style for months, the teacher had an exemplary record. In fact the principal had previously written a glowing recommendation for the teacher’s application as a consulting teacher, in which he would evaluate “teachers in trouble.” The teacher’s performance evaluations included praise for the teacher’s ability to assess students and to modify his teaching style to meet students’ needs. more or view all topics or full text.
291911/29/04
1697H Trustees of the California State University
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
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.
2826409/30/04
1674E Fresno County Office of Education
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
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
1538E Berkeley Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
District’s statement that it took the alleged adverse action, “because the Union had filed a grievance . . .” provides a direct link between the filing of the grievance and the alleged adverse action. Thus, charging party has established the requisite “nexus” in order to establish a prima facie case. more or view all topics or full text.
279506/24/03
1520E Contra Costa Community College District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
It is axiomatic that the purpose of the employment interview is to elicit information from a candidate in order to make a hiring decision. The Board holds that when an employer asks an interviewee whether he or she is sympathetic to other employees exercising their rights under EERA, it creates a strong inference of discrimination and may constitute direct evidence of discrimination, thus, the requirement of nexus is satisfied for purposes of establishing a prima facie case. more or view all topics or full text.
276905/08/03
1188H Regents of the University of California (University Professional and Technical Employees)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Employer's statement that they were withholding a salary increase due to the employees' participation in a representation election establishes nexus; p. 29. more or view all topics or full text.
212806703/19/97
0895E Sonoma County Junior College District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Respondent's aversion toward collective bargaining is supported by his own testimony; p. 21, proposed dec. more or view all topics or full text.
152213208/12/91
0864E Newark Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Employer's refusal to provide information at meeting regarding discriminatory transfer raises specter of unlawful motive; pp. 30-32, proposed dec. Employer's hostile comments and reluctant dealings with teacher group and union are indicative of unlawful motive; p. 31, proposed dec. more or view all topics or full text.
152202301/14/91
0795E Jamestown Elementary School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
No nexus found where little or no evidence that employer aware of protected activity and where comments of employer could not reasonably be interpreted to urge employee to abandon support for incumbent union; pp. 18-19, proposed dec. (Writ summarily denied.) more or view all topics or full text.
142106903/20/90
0764E Cupertino Union School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Statement by employer that employee, "knew one of the reasons for her termination, and it had to do with her activities last summer," without more, does not support an inference of unlawful motivation; p. 15. more or view all topics or full text.
132019409/14/89
0628E Woodland Joint Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Threatening to "get rid of" charging party; warning other employees not to get involved with charging party. more or view all topics or full text.
111812106/30/87
0622E Riverside Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
No threat at meeting when employer told employee that if he did not accept change in starting time, some one else would be obtained to perform the job; pp. 47-48, proposed dec. more or view all topics or full text.
111810706/11/87
0615H Regents of the University of California (Yeary)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Threats to withdraw recognition of representative (p. 21) and threats to advance hearing date on or withdraw appeal not sufficient to imply unlawful motive; p. 22. more or view all topics or full text.
111806003/03/87
0564E El Dorado Union High School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Employer statements virtual admission that cancellation of work the result of union activity. more or view all topics or full text.
101707604/04/86
0378S State of California (Department of Developmental Services, Napa State Hospital) (Matta)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Statements of supervisor considered in light of whole record did not support finding of animus; pp. 24-28. more or view all topics or full text.
81503902/15/84
0368E San Diego Community College District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
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. 19-20. more or view all topics or full text.
81500912/22/83
0287S State of California (Department of Real Estate)
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Board affirmed hearing officer's dismissal of charge where comments by respondent in grievance response did not rise to level of an unlawful threat of reprisal or discrimination; p. 2. more or view all topics or full text.
71408002/24/83
0104E Santa Clara Unified School District
504.12000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Employer Statements or Conduct; Threats
Discrimination found where employer told employee she should come to District before going to union; pp. 16-17. No discrimination found where District threatened teacher with dock in pay for refusing to abide by new teaching schedule - legitimate response to threatened insubordination; pp. 19-21. more or view all topics or full text.
31012409/26/79