Decision 2584E – California Virtual Academies

The solicitation of union support and membership during nonwork time and in nonwork areas lies at the core of EERA’s protections.

Termination is an adverse action.

Unexplained involvement of charter school network’s head of schools in the decision-making process suggested unlawful motive.

In determining the strength of the inference resulting from the temporal proximity between the protected activity and the adverse action, the Board looks at the dates of all protected activity, not just the earliest.

Exaggerated and shifting justifications between employer’s response to unfair practice charge and testimony at hearing is evidence of unlawful motive.

Unexplained and apparently groundless suggestion that employee be told that purported misconduct could result in additional professional consequences provides at least some evidence of unlawful motive.

Once an employer undertakes an investigation into alleged misconduct, its failure to conduct the investigation in a fair and impartial manner can be evidence of nexus. Employer’s failure to interview employee, employee’s direct supervisor, or supervisor’s supervisor suggests that employer was not interested in obtaining evidence that might conflict with its desired result.

An employer’s clear and unequivocal hostility to collective bargaining, even if accomplished without threats of reprisal or promises of benefit, gives rise to a logical inference that it might target union supporters for adverse action. In any event, criticism of protected solicitation of union support and membership as possibly illegal, a breach of “trust,” and involving “lies” and “trick[s],” sailed well outside the safe harbor for protected employer speech.

Anti-union animus of employer’s highest-ranking official, even if she did not make the decision to take an adverse action, is probative of the employer’s culture and the atmosphere in which the decision was made.

Employer’s statement that telephone call to employee “is not going to go well” and that employee would need to be convinced that “this is serious and not retribution for something else” appeared to be an instance of protesting too much, suggesting an unlawful motive.

Employer cannot meet its burden of proof that it would have taken the same adverse action regardless of employee’s protected activity if its proffered reason for taking the action was discovered through an investigation that was itself tainted by unlawful motive.

In determining whether employer has proven it would have taken the same adverse action regardless of the employee’s protected activity, the Board weighs the evidence supporting the employer’s justification for the adverse action against the evidence of unlawful motive.

The Board inferred knowledge of employees protected activity from employer’s statement that telephone call to employee “is not going to go well” and that employee would need to be convinced that “this is serious and not retribution for something else.”

If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.

The Board reviews a proposed decision de novo, may draw contrary inferences from the factual record, and may reverse the ALJ’s legal conclusions. The Board defers to findings of fact that incorporate credibility determinations unless there is evidence to support overturning them.