Decision 2637S – State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000)

To demonstrate that an employer has discriminated or retaliated against an employee in violation of Dills Act section 3519, subdivision (a), the charging party must show: (1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. (p. 12)

The right to engage in union activity during nonwork time is protected activity. (p. 13)

Union presented specific evidence of supervisor’s hostility towards employee’s union activity, namely her embittered response to employee during a discussion regarding after-hours union duties. (p. 15)

Because it can be difficult to “show the true character” of an employer’s motivations, PERB has routinely relied on evidence of prior unfair practices, including events occurring before the six-month statute of limitations or outside the “four corners” of the charge, to determine whether a respondent acted for an unlawful motive. (p. 17)

The Board will ascribe significant weight to evidence of prior demonstrations of antipathy towards union activists in attempting to identify the true motivation for an adverse action. (p. 17)

Inconsistent or contradictory justifications for an employer’s actions may support an inference of unlawful motive. (p. 15)

The Board may consider previously unalleged protected activities under the same test that it uses for unalleged violations: (1) charging party has provided defendant with adequate notice and opportunity to defend; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the parties have fully litigated the unalleged violation(s); and (4) the parties have had the opportunity to examine and be cross-examined on the issue(s). (pp. 16-17)

Under California law, a party may be collaterally estopped from relitigating an issue if: (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.

In mixed motive cases where an employer’s action is animated both by discriminatory and nondiscriminatory reasons, the Board uses a “but for” test to determine whether the employer would have taken the same action regardless of its improper motivation. Once a charging party establishes a prima facie case of discrimination, the burden shifts to the employer to show by a preponderance of evidence that it would have taken the adverse action regardless of the employee’s protected activity. To prevail on its affirmative defense, the employer must establish that it had a legitimate, nondiscriminatory reason for taking the adverse action and that the reason proffered was, in fact, the employer’s reason for taking the adverse action. (p. 20)

The Boar will bar an employer from meeting its burden of proof when its stated reason for taking the adverse action was discovered through an investigation that itself was tainted by unlawful motive. (p. 20)