Decision 2635Ma – City of Santa Monica

Although PERB precedent protects representational rights to a greater extent than corresponding precedent under federal law governing private sector labor relations, PERB considers relevant federal precedent for its persuasive value when it is consistent with California authority. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 27, fn. 17.)

To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred ‘but for’ the protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.)

To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred ‘but for’ the protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.)

“To establish the final element of the prima facie case, the charging party must show that the employee’s protected activity was a motivating factor in the employer’s decision to impose the adverse action.” (Omnitrans (2010) PERB Decision No. 2121-M, p. 9.) PERB considers direct evidence, circumstantial evidence, or a combination. (Id. at p. 10.) Direct evidence is rarely attainable, and in any event, there is no hierarchy between direct and circumstantial evidence, as PERB considers all evidence for its persuasive value. (Id. at pp. 9-10; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.)

While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive through circumstantial evidence: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures and standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (See, e.g., City of Sacramento (2019) PERB Decision No. 2642-M, p. 21; San Joaquin Delta Community College District (1982) PERB Decision No. 261, pp. 5-9.)

Board affirmed ALJ’s finding that employer presented consistent reason for its decision to promote another employee over charging party, and found no evidence that employer’s explanation was substantively different from that which was initially expressed to charging party.

One important circumstantial factor when assessing the presence or absence of an unlawful motive is the relative timing of a charging party’s protected activities and a respondent’s adverse action. (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 13.) PERB has repeatedly noted that adverse action taken shortly after an employee’s protected activities tends to suggest more strongly that the two are linked, and this inference weakens as the gap in time grows. (Ibid.) However, irrespective of whether the timing evidence is strong or weak, timing alone is typically not determinative (ibid), and when assessing the relative strength of timing as a factor, there is no “‘bright line’ rule for determining how close in time the protected activity must be to the retaliatory conduct.” (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, p. 12.) Thus, while a charging party typically needs more than just timing evidence to prevail, if the timing evidence is weak then a charging party will normally need to marshal a stronger array of other, non-timing evidence. PERB continues to reject any bright line finding that certain time lags are so remote that timing alone could defeat a retaliation claim, irrespective of the other evidence.

Where management had no opportunity to choose between charging party employee and other promotional candidates until well after charging party began engaging in protected activity, the timing factor had less relevance. In that case, the Board did not find timing to be a particularly probative factor one way or the other.

Charging party relied heavily upon alleged management statements suggesting that unlawful animus could have been present at a sufficient level for such animus to qualify as a motivating or substantial factor behind his employer’s promotion decision. The proposed decision cited City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) for the proposition that PERB cannot consider manager statements as evidence of animus unless such statements are themselves a threat or reprisal. The Board disagreed and explained that City of Oakland does not categorically prohibit it from considering employer statements in context, as part of nuanced evaluation of an employer’s motive. Citing NLRB precedent, the Board held: “[A]n employer’s expression of views or opinions against a union, which cannot be deemed a violation in and of itself, can nonetheless be used as background evidence of antiunion animus on the part of the employer.” (CSC Holdings, LLC (2017) 365 NLRB No. 68, p. 17.) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus.

Applying City of Oakland (2014) PERB Decision No. 2387-M (City of Oakland) in recent decisions, PERB explained that an employer’s statements may or may not be evidence of an unlawful motivation, depending on the circumstances, irrespective of whether they qualify as threats or promises. (See City of Arcadia (2019) PERB Decision No. 2648-M, p. 30; State of California (Department of Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16; California Virtual Academies (2018) PERB Decision No. 2584, p. 29.)

While PERB considers all management statements, among many other factors, in assessing nexus (and in assessing the employer’s affirmative defense in mixed motive cases), the persuasive value of particular management statements will vary depending on differing contexts.

It is logical to treat employer statements differently in the interference and discrimination contexts. In assessing a prima facie interference case, motive is normally not at issue, and PERB must determine whether an employer statement is itself a violation, irrespective of motive. In such cases, a manager’s statement “causes no cognizable harm to employee rights unless it contains threats of reprisal or force or promise of a benefit . . . Thus, the charging party must show that the employer’s communications would tend to coerce or interfere with a reasonable employee in the exercise of protected rights.” (County of Riverside (2010) PERB Decision No. 2119- M, p. 17, citations and internal quotation marks omitted.) In contrast, in a discrimination case, PERB must determine motivation, often from circumstantial evidence. Therefore, “context is always relevant,” and PERB looks at “any other” fact or circumstance that may help it resolve the fundamentally difficult task of determining intent. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11 and adopting proposed decision at p. 30].) Management statements of anti-union animus may serve as circumstantial evidence of retaliatory nexus.

By his exceptions, charging party asserted that the ALJ relied on arguments that the prevailing employer never offered. PERB takes a practical, fact-based approach to deciding unfair practice charges. Once a party pleads a general theory of violation (or, as here, a defense), PERB employs a flexible approach to determining whether the evidence presented at hearing supports the parties’ claims. (See e.g. San Diego Community College District (2019) PERB Decision No. 2625, adopting proposed decision at p. 19; Bellflower Unified School District (2017) PERB Decision No. 2544, pp 5-6.) PERB held that when ALJs are analyzing unfair practice charges through well-established legal tests such as the Novato framework, they need not ignore legally salient facts even if a party has not specifically urged that they be considered or has failed to offer arguments as to their relevance. These principles certainly hold true in discrimination and retaliation cases, where “the trier of fact may consider the totality of evidence and draw inferences reasonably justified therefrom.” (California State University, Hayward (1991) PERB Decision No. 869-H, adopting proposed decision at p. 23, fn. 13); see also Los Angeles Unified School District (2016) PERB Decision No. 2479, pp. 29-30.)