Decision 2453E – Cabrillo Community College District

SF-CE-2994-E

Decision Date: September 17, 2015

Decision Type: PERB Decision

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Perc Vol: 40
Perc Index: 57

Decision Headnotes

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

A finding of interference, coercion or restraint does not require evidence that any employee subjectively felt threatened or intimidated or was in fact discouraged from participating in protected activity; rather the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity. If the harm to protected rights is slight and the employer offers justification based on operational necessity, the competing interests are balanced. If the harm to employee rights outweighs the asserted business justification, a violation will be found. Where the employer’s conduct is inherently destructive of protected rights, it will be excused only on proof that it was caused by circumstances beyond the employer’s control and that no alternative course of action was available. A charge of interference will be sustained where it is shown that the employer would not have engaged in the complained-of conduct but for an unlawful motivation, purpose or intent.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.01000 – In General; Prima Facie Case.

A finding of interference, coercion or restraint does not require evidence that any employee subjectively felt threatened or intimidated or was in fact discouraged from participating in protected activity; rather the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.01000 – In General

A finding of interference, coercion or restraint does not require evidence that any employee subjectively felt threatened or intimidated or was in fact discouraged from participating in protected activity; rather the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.02000 – Express or Implied Threats

A finding of interference, coercion or restraint does not require evidence that any employee subjectively felt threatened or intimidated or was in fact discouraged from participating in protected activity; rather the inquiry is an objective one which asks whether, under the circumstances, an employee would reasonably be discouraged from engaging in protected activity.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

If the harm to protected rights is slight and the employer offers justification based on operational necessity, the competing interests are balanced. If the harm to employee rights outweighs the asserted business justification, a violation will be found. Where the employer’s conduct is inherently destructive of protected rights, it will be excused only on proof that it was caused by circumstances beyond the employer’s control and that no alternative course of action was available.

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

To establish a prima facie case of retaliation in violation of EERA section 3543.5(a), the charging party must show that: (1) the employee exercised rights guaranteed by EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took action against or adverse to the interest of the employee; and (4) the employer acted because of the employee’s exercise of the guaranteed rights. Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer's motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

Unlawful motive is the specific nexus required in the establishment of a prima facie case of retaliation. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer's motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. If the charging party establishes a prima facie case, the burden shifts to the employer to prove by a preponderance of the evidence that it would have taken the same course of action, regardless of any protected activity.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

To the extent that the Office of the General Counsel determined that the withdrawal of tentatively scheduled employment and all future employment is an adverse action, we concur. Placing charging party on involuntary paid leave is an adverse action.

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

To the extent that the Office of the General Counsel determined that the withdrawal of tentatively scheduled employment and all future employment is an adverse action, we concur.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

To the extent that the Office of the General Counsel determined that the withdrawal of tentatively scheduled employment and all future employment is an adverse action, we concur.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.14000 – Involuntary Leaves

Placing charging party on involuntary paid leave is an adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive.

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

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive.

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

To assist with assessing circumstantial evidence of unlawful motive, PERB has developed a set of “nexus” factors. Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive.

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

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. Lack of evidence regarding an independent investigation by the District prior to its taking adverse action against charging party suggests that the District’s justification was pretextual. The District has not described how it conducted a thorough investigation of charging party’s academic credentials in the two days between charging party’s November 4, 2012, e-mail and the District’s November 6, 2012 adverse action. In addition, the undated evidence that was first submitted to PERB by the District in its March 6, 2013, position statement is arguably “after the fact,” and therefore unconvincing justification for its November 6, 2012, adverse action. As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier decision to impose adverse action. We conclude, therefore, that charging party has sufficiently alleged that the District’s motive for placing him on involuntary, paid administrative leave, withdrawing its tentative offer of employment for Spring 2013 and foreclosing the possibility of future employment with the District, was charging party’s protected conduct and not the District’s concerns about charging party’s qualifications and or his alleged failure to document or disclose prior employment.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. Lack of evidence regarding an independent investigation by the District prior to its taking adverse action against charging party suggests that the District’s justification was pretextual. The District has not described how it conducted a thorough investigation of charging party’s academic credentials in the two days between charging party’s November 4, 2012, e-mail and the District’s November 6, 2012 adverse action. In addition, the undated evidence that was first submitted to PERB by the District in its March 6, 2013, position statement is arguably “after the fact,” and therefore unconvincing justification for its November 6, 2012, adverse action. As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier decision to impose adverse action. We conclude, therefore, that charging party has sufficiently alleged that the District’s motive for placing him on involuntary, paid administrative leave, withdrawing its tentative offer of employment for Spring 2013 and foreclosing the possibility of future employment with the District, was charging party’s protected conduct and not the District’s concerns about charging party’s qualifications and or his alleged failure to document or disclose prior employment.


504.14000 – Other/In General

Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. Unlawful motive is the specific nexus required in the establishment of a prima facie case of retaliation. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. To assist with assessing circumstantial evidence of unlawful motive, PERB has developed a set of “nexus” factors. Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer's motivation. Lack of evidence regarding an independent investigation by the District prior to its taking adverse action against charging party suggests that the District’s justification was pretextual. The District has not described how it conducted a thorough investigation of charging party’s academic credentials in the two days between charging party’s November 4, 2012, e-mail and the District’s November 6, 2012 adverse action. In addition, the undated evidence that was first submitted to PERB by the District in its March 6, 2013, position statement is arguably “after the fact,” and therefore unconvincing justification for its November 6, 2012, adverse action. As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier decision to impose adverse action. We conclude, therefore, that charging party has sufficiently alleged that the District’s motive for placing him on involuntary, paid administrative leave, withdrawing its tentative offer of employment for Spring 2013 and foreclosing the possibility of future employment with the District, was charging party’s protected conduct and not the District’s concerns about charging party’s qualifications and or his alleged failure to document or disclose prior employment.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

To prevail on its affirmative defense, the employer must establish both that a legitimate, non-discriminatory reason existed for taking the adverse action, and that the reason proffered was, in fact, the employer’s reason for taking adverse action.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

When the respondent can establish an affirmative defense as a matter of law based on undisputed facts, the charge must be dismissed even when the charging party has otherwise established a prima facie case. In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

Because this case is an appeal from a dismissal and refusal to issue a complaint by the Office of the General Counsel, our inquiry at this stage is focused on the sufficiency of the charging party’s allegations. In addition, we may also consider information provided by the respondent, but only when such information is submitted under oath, complements without contradicting the facts alleged in the charge, and is not disputed by the charging party. When the respondent can establish an affirmative defense as a matter of law based on undisputed facts, the charge must be dismissed even when the charging party has otherwise established a prima facie case. In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law. Because the function of a Board agent investigating a charge is not to weigh evidence, determine credibility or make findings of fact, it is generally not appropriate at this stage of the proceedings to determine the employer’s true motive for taking adverse action.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

When the respondent can establish an affirmative defense as a matter of law based on undisputed facts, the charge must be dismissed even when the charging party has otherwise established a prima facie case.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.02000 – Issuance of Complaint

In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.05000 – Answer or Other Defense/Waiver

Because the function of a Board agent investigating a charge is not to weigh evidence, determine credibility or make findings of fact, it is generally not appropriate at this stage of the proceedings to determine the employer’s true motive for taking adverse action. An employer’s affirmative defense should be considered at the charge-processing stage of unfair practice proceedings only if raised in a verified and properly served position statement, and only if the asserted defense rests on factual allegations that do not contradict those included in the charge, and which the charging party does not dispute.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Under PERB Regulation 32635(b) a charging party may not present new charge allegations or new supporting evidence on appeal from a dismissal unless good cause is shown. The Board has generally found good cause to do so when the new allegations or supporting evidence could not have been discovered by the charging party through the exercise of reasonable diligence before the charge was dismissed.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

Because this case is an appeal from a dismissal and refusal to issue a complaint by the Office of the General Counsel, our inquiry at this stage is focused on the sufficiency of the charging party’s allegations. In addition, we may also consider information provided by the respondent, but only when such information is submitted under oath, complements without contradicting the facts alleged in the charge, and is not disputed by the charging party.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

Under PERB Regulation 32635(b) a charging party may not present new charge allegations or new supporting evidence on appeal from a dismissal unless good cause is shown. The Board has generally found good cause to do so when the new allegations or supporting evidence could not have been discovered by the charging party through the exercise of reasonable diligence before the charge was dismissed. Both of the “dates” that charging party purports to have received these documents are ambiguous and charging party’s request does not explicitly state that these documents were received after the dismissal of his amended charge on May 19, 2015. Therefore, charging party has not met his burden of showing good cause to present either of these two documents as new evidence on appeal. Although charging party has established good cause to consider the July 26, 2015, the information lacks relevance to the issues before us, viz., motivation of the District for its adverse actions against charging party on and after November 6, 2012.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Because this case is an appeal from a dismissal and refusal to issue a complaint by the Office of the General Counsel, our inquiry at this stage is focused on the sufficiency of the charging party’s allegations. In addition, we may also consider information provided by the respondent, but only when such information is submitted under oath, complements without contradicting the facts alleged in the charge, and is not disputed by the charging party. (PERB Reg. 32620(c).) In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. (PERB Regs. 32620 and 32640.) An employer’s affirmative defense should be considered at the charge-processing stage of unfair practice proceedings only if raised in a verified and properly served position statement (PERB Regs. 32140(a) and 32620(c)), and only if the asserted defense rests on factual allegations that do not contradict those included in the charge, and which the charging party does not dispute. Under PERB Regulation 32635(b) a charging party may not present new charge allegations or new supporting evidence on appeal from a dismissal unless good cause is shown. The Board has generally found good cause to do so when the new allegations or supporting evidence could not have been discovered by the charging party through the exercise of reasonable diligence before the charge was dismissed.