Decision 2612M – County of Lassen

Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.)

Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.)

Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.)

MMBA section 3509, subdivision (b), grants PERB wide discretion to determine the appropriate remedy necessary to effectuate the purposes of the Act. The ordinary remedy in a discharge case includes both reinstatement and back pay. Employee should be offered reinstatement to position from which she was terminated; although position required a bachelor’s degree, which employee did not have at time of hire, employee subsequently received her degree prior to reinstatement order.

Employee should be offered reinstatement to position from which she was terminated; although position required a bachelor’s degree, which employee did not have at time of hire, employee subsequently received her degree prior to reinstatement order.

An employee who has suffered an economic loss due to an employer’s discriminatory conduct must make reasonable efforts to obtain alternative employment. (Fresno County Office of Education (1996) PERB Decision No. 1171, pp. 2-5 & adopting proposed decision at pp. 3-10 (Fresno).) The burden of establishing that a discriminatee failed in this duty rests on the employer who committed the wrongful act. (Id. at pp. 3-4 & adopting proposed decision at p. 4.) Any uncertainty is resolved against the employer. (Id. at p. 2, fn. 1 & adopting proposed decision at pp. 4, 7.) To establish a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts “consistent with the inclination to work and to be self-supporting.” (Fresno County Office of Education (1996) PERB Decision No. 1171, p. 2, fn. 1 & adopting proposed decision at p. 4, internal quotation marks omitted.) Claimants are not expected to seek a job more onerous that the one from which they were removed but rather are expected to seek a substantially equivalent job. (Ibid.) The principle of mitigation of damages does not require success; it only requires an honest good-faith effort. (County of Riverside (2013) PERB Decision No. 2336-M, adopting proposed decision at p. 19 (Riverside).)

Even where the employer shows that there were multiple appropriate jobs for which an employee failed to apply, the employee can rebut the employer’s defense by showing that she made reasonable job-hunting efforts. (Fresno County Office of Education (1996) PERB Decision No. 1171, adopting proposed decision at pp. 4-5.)

Employee pursued mitigating employment with sufficient diligence, where pursuing a Master’s degree was not unreasonable, and employee actively sought other jobs from the date of her termination, even while also pursuing her studies. An employee who enrolls in a course of training or avails herself of other educational opportunities during the back pay period may nevertheless be entitled to back pay to the extent that the employee seeks to combine school with job hunting, or reasonably decides that gaining education and changing careers is the best path toward gainful employment.