Decision 2184M – County of Riverside

Seeking the assistance of the exclusive representative in connection with a workplace issue is protected activity. An employee’s request for representation during a meeting with management is also protected activity.

An employer’s failure to give an “at will” employee a reason for dismissal does not indicate unlawful motive in the absence of evidence that the employer was required by policy or past practice to do so.

Failure to investigate supervisor’s reasons for recommending employee’s release on probation did not support an inference of unlawful motive. A decisionmaker’s reliance on reports by subordinates does not constitute a cursory investigation unless the decisionmaker had reason to believe the reports to be biased or inaccurate. Nothing in the record demonstrates that decisionmaker had any reason to believe supervisor’s reports were not truthful. Recommendations were based on statements employee made to supervisor, not on the incidents themselves. Thus, an investigation into the substance of the incidents would not have addressed the actual reasons for the supervisor’s recommendation. Employer’s failure to interview employee did not evidence unlawful motive, where there was no evidence that the employer regularly interviewed probationary employees before releasing them.

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.

Under the subordinate bias theory, a supervisor’s unlawful motive may be imputed to the decisionmaker when: (1) the supervisor’s recommendation, evaluation, or report was motivated by the employee’s protected activity; (2) the supervisor intended for his or her conduct to result in an adverse action; and (3) the supervisor’s conduct caused the decisionmaker to take adverse action against the employee. While closeness in time between protected activity and supervisor’s recommendation supported an inference of unlawful motive, evidence failed to establish any other factors that would support such an inference.

Once a prima facie case is established, the employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. Thus, when it appears that the adverse action was motivated by both valid and invalid reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” The “but for” test is “an affirmative defense which the employer must establish by a preponderance of the evidence.” When conducting the “but for” analysis, the proper inquiry is whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. In making this determination, “PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive.” Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. In this case, the supervisor’s recommendation to reject employee on probation was based upon three incidents that caused supervisor to doubt employee’s ability to develop as an investigator, while protected activity of listing union representative as a “cc” recipient on a written statement is relatively minor in nature. Thus, Board concludes that employee’s protected activity was not the true motivation for supervisor’s recommendation and the employer proved it would have released employee on probation even if he had not engaged in protected activity.

Supervisors had knowledge of employee’s protected activity in sending copy of written statement about workplace issue to union representative, where union representative’s name appeared directly below supervisor’s name on “cc” line of statement. Although decisionmaker did not have knowledge of protected activity, decision was based solely on recommendation of supervisor who knew of employee’s protected activity. Under the subordinate bias theory, a supervisor’s unlawful motive may be imputed to the decisionmaker when: (1) the supervisor’s recommendation, evaluation, or report was motivated by the employee’s protected activity; (2) the supervisor intended for his or her conduct to result in an adverse action; and (3) the supervisor’s conduct caused the decisionmaker to take adverse action against the employee.

Exceptions adequately notify respondent and the Board of the issues raised on appeal, and are therefore in substantial compliance with PERB Regulation 32300(a). Because the record contains no evidence to support new factual allegations for which no evidence was presented at hearing, the Board will not consider those allegations in review of exceptions.

While the Board will afford deference to the ALJ’s findings of fact which incorporate credibility determinations, the Board is required to consider the entire record, including the totality of testimony offered, and is free to draw its own and perhaps contrary inferences from the evidence presented. Here, the ALJ made no determination that testimony of one witness was more credible than that of another but relied on evidence that charging party contacted his union after the meeting to conclude that it was “more likely than not” that charging party requested a union representative at a meeting with his supervisor and was denied one. Since the record contains no evidence that charging party was aware he could or should seek union representation until after the meeting, Board finds that the evidence did not establish that he requested union representation during the meeting.