Decision 0328S – State of California (Department of Parks and Recreation) * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M

LA-CE-70-S

Decision Date: July 29, 1983

Decision Type: PERB Decision

* * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M * * *

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Perc Vol: 7
Perc Index: 14211

Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

ALJ's credibility determination is supported by record as whole.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.03000 – Activities for Nonexclusive Representative – Protected Right

Job steward for union.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Grievance related matters involving interaction with park supervisors.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.10000 – Solicitation/Organizing

Four week leave of absence for union organizing and wearing union button constitute protected activity.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

Application of Novato.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

Even though counseling memo is not placed in file, considered more serious than verbal warning, and distribution to other supervisors makes documents adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Denial of promotional opportunity is adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

Written reprimand evidences disparate treatment. Demand to remove button evidences disparate treatment. Ill defined and inconsistently applied coffee rule discloses disparate treatment.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Timing of reprimands suggest inference of unlawful motivation.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Shifting justification evidences pretextual motivation.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.14000 – Other/In General

Discipline based on unsubstantial allegations or on mere technical violations of employer work rules may raise inference of unlawful motivation.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of Knowledge of Protected Activity

Panel's lack of knowledge of protected activity not defense where panel relied on tainted evaluation ratings.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

ALJ's credibility determination is supported by record as whole.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

Employee discriminated against in selection for promotion, not given position, but rather ordered at top of list for next available position. Not shown incumbent was inferior to charging party in ratings or is other than innocent party.