Decision 2121M – Omnitrans

LA-CE-358-M

Decision Date: June 25, 2010

Decision Type: PERB Decision

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Perc Vol: 34
Perc Index: 110

Decision Headnotes

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

Prima facie case of retaliation established because employer fired employee in part for absences on days when employee was conducting union business. Employer established affirmative defense that it would have fired employee absent protected activity because denials of union business leave were based on legitimate operational need and absences for failure to report for work on days when leave was denied, along with days absent for personal reasons and days for which employee failed to properly request union leave, were sufficient to support termination under parties’ MOU.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – 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.


504.14000 – Other/In General

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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Employer bears burden of proving affirmative defense that it would have taken adverse action even in the absence of employee’s protected activity. Employer proved affirmative defense by showing it would have terminated employee for excessive absences even though some of the absences were for union business. Some absences were for personal business, employee failed to properly request union leave for others, and absences were legitimately charged when employee failed to report for work on days union leave had been denied because employer showed legitimate operational need for denials. Validly charged absences totaled more than enough for termination under attendance provision of MOU.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

Employer proved affirmative defense by showing it would have terminated employee for excessive absences even though some of the absences were for union business. Some absences were for personal business, employee failed to properly request union leave for others, and absences were legitimately charged when employee failed to report for work on days union leave had been denied because employer showed legitimate operational need for denials. Validly charged absences totaled more than enough for termination under attendance provision of MOU.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.11000 – Legitimate Business Purpose/Business Necessity

Employer proved by a preponderance of the evidence that its denials of union president’s requests for union leave were based on a legitimate operational need. Unrebutted evidence showed transit agency was suffering manpower shortage at time leave requests were denied. That agency allowed a few employees to attend a focus group meeting for a few hours on a few days during the same period did not disprove the claimed manpower shortage.