Decision 2387M – City of Oakland

To fully effectuate the MMBA’s purpose of “promot[ing] full communication between pubic employers and their employees” the employer should be free to speak its mind, without incurring liability for every impulsive act or intemperate remark by one of its managers or representatives. Generally, an employer’s expression or disseminate of views, arguments or opinions shall not constitute, or be evidence of an unfair labor practice unless such expression contains a threat of reprisal, force, or promise of benefit or expresses a preference for one employee organization over another employee organization.

To fully effectuate the MMBA’s purpose of “promot[ing] full communication between pubic employers and their employees” the employer should be free to speak its mind, without incurring liability for every impulsive act or intemperate remark by one of its managers or representatives. Generally, an employer’s expression or disseminate of views, arguments or opinions shall not constitute, or be evidence of an unfair labor practice unless such expression contains a threat of reprisal, force, or promise of benefit or expresses a preference for one employee organization over another employee organization.

Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord (An employer’s spontaneous reaction or taking offense to personal criticism by a union representative or employee engaged in protected activity is not, by itself, determinative of unlawful motive. While evidence of unlawful motive that occurred outside the six-month limitation period cannot be used to establish an independent violation, it can serve as background evidence of a respondent’s motive for conduct that is part of a timely allegation. The Board considered evidence of the employer’s prior conduct in negotiations, including evidence of direct dealing with employees, surface bargaining and coercive statements by managers, to show anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Offering or conferring promotional opportunities or other employment benefits to an employee to work against an employee organization is an unfair practice and may serve as evidence of unlawful motive in a separate allegation that an employer has discriminated against a union officer by selecting her for layoff. Undisputed evidence that bargaining unit employee was made part of management’s bargaining team in negotiations against her own exclusive representative was probative evidence to show employer’s hostility to collective bargaining and, by inference, unlawful motive in later selecting union officer for layoff. Although employer threats or other coercive statements are analyzed as “interference” violations for which no showing of unlawful motive is required, it is well-settled that collateral evidence of an employer's coercive statements or conduct, even when occurring outside the six-month limitations period, may be properly considered as evidence of anti-union motivation for allegations that are within the applicable limitations period. The Board considered evidence of a manager’s coercive statements to other employees, as evidence of anti-union animus and, by inference, unlawful motive in the employer’s later selection of a union officer for layoff. Although walking out of negotiations or a grievance meeting that is still in progress may be evidence of unlawful motive, manager who took offense to union’s statements and abruptly left negotiations was not probative evidence of animus because employer’s chief negotiator and other bargaining team members remained at the table and negotiations continued in the manager’s absence. A manager’s elimination of an alternative work schedule and telecommuting policy popular with employees shortly after the exclusive representative refused to agree to a minimum billable hours proposal championed by the same manager was evidence of the manager’s hostility towards the union and, by inference, the employer’s unlawful motive in later selecting a union officer for layoff. An employer may communicate directly with represented employees about employment matters, though it may not use these communications to alter or waive rights on negotiable subjects or undermine the authority of the exclusive representative. Employer’s presentation of its bargaining proposals to employees, even after representative objected, may be used to show employer hostility to the procedures of collective bargaining and, by inference, unlawful motive in later selection of union officer for layoff.

The absence of retaliatory action against other union adherents does not disapprove a prima facie showing of retaliation against the complainant. A discriminatory motive, otherwise established, is not disapproved by proof that the employer did not attempt to weed out every union adherent. However, where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination. Even where it has unquestioned discretion to act, a public employer is not free to exercise that discretionary authority in a manner that violates the rights of employees or employee organizations. To rebut an employee’s prima facie case of unlawful discrimination, the employer must show not only that a legitimate, non-discriminatory purpose might justify its action, but that, in fact, it took the adverse action in question for the non-discriminatory purpose it asserts. Where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination.

While evidence of unlawful motive that occurred outside the six-month limitation period cannot be used to establish an independent violation, it can serve as background evidence of a respondent’s motive for conduct that is part of a timely allegation. Evidence of an employer’s conduct occurring outside the six-month limitations period, including impliedly coercive statements to employees, may be properly considered as evidence of anti-union motivation for allegations within the applicable limitations period.