Decision 1299S – State of California (Department of Industrial Relations)
LA-CE-398-S
Decision Date: November 2, 1998
Decision Type: PERB Decision
Description: State and Union flied exceptions to Board agent’s proposed decision finding the State violated the Dis Act when it retaliated against a probationary employee for exercise of his protected rights.
Disposition: Dismissed. Board determined that the State demonstrated that its actions would have occurred irrespective of probationary employee’s protected activity.
Perc Vol: 23
Perc Index: 30012
Decision Headnotes
505.01000 – In General
In retaliation cases, once an inference of unlawful motivation is drawn, the burden shifts to the employer to establish that it would have taken the action regardless of the employee's protected conduct, citing Novato; p. 11. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Ca.3d 721; pp. 11-12. The Board will find the employer's conduct to be unlawful if it determines that the action would not have been taken but for the employee's protected conduct;p. 12.
504.14000 – Other/In General
Since direct proof of unlawful motivation is not often present, the Board reviewed the record as a whole to determine if the inference of unlawful motive should be drawn; pp. 10-11. The temporal proximity of employee's protected conduct with the State's actions and the fact that the performance deficiencies memorandum and employee's second probationary report made specific reference to the employee's contact with the union representative supports the inference of unlawful motivation by the State; p. 11.
300.01000 – In General
Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721; pp. 11-12.
501.02000 – Burden of Proof; Evidence
Board review of evidence in this case led to the same conclusion as the State Personnel Board (SPB) which had found substantial evidence supporting the probationary rejection and concluded that the employee had been rejected primarily because he had failed to follow the instructions of his supervisor; both SPB and PERB determined that rejection of probaiton was justified; p. 14. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions, city Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721; pp. 11-12.
504.04000 – Timing of Action
Factors which may support an inference of unlawful motivation include the timing of the employer's adverse action in relation to the employee's protected conduct. In this case, employee's call to his union occurred only days before he received a performance deficiencies memorandum from his supervisor; p. 11. The temporal proximity of employee's protected conduct with the State's actions and the fact that the performance deficiencies memorandum and employee's second probationary report made specific reference to the employee's contact with the union representative supports the inference of unlawful motivation by the State; p. 11.
1107.13000 – Administrative and Judicial Notice
While the SPB decision denying employee's appeal of his probationary rejection is not afforded collateral effect in this PERB proceeding, it forms a part of the record before the Board; p. 14.
1405.01000 – In General
The doctrine of collateral estoppel precludes a party to an action from relitigating in a second proceeding, matters litigated and decided in a prior proceeding, citing People v. Sims 1982) 32 Cal.3d 468; p. 8. Collateral estoppel is an aspect of, but not co-extensive with, the broader concept of res judicata. Collateral estoppel traditionally has barred religation of an issue if: (1) the issue is identical to one necessarily decided at a previous proceeding; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding, city People v. Sims; p. 9. The Board concluded that collateral estoppel effect can not be given to the SPB proceeding in this case since the issue considered by the The Board concluded that collateral estoppel effect can not be given to the SPB proceeding in this case since the issue considered by the established in People v. Sims has not been met; p. 10.