Decision 2704H – Regents of the University of California

In this case, the parties had no neutral, binding arbitration process in place, because the parties’ contract had expired. In lieu of a labor arbitration, the University offered Charging Parties a post-deprivation hearing that involved an arbitrator making a non-binding recommendation to a UCLA Vice Chancellor. After the close of the PERB hearing, the University added to the record a copy of the arbitrator’s recommendation that the terminations be upheld. The ALJ declined the University’s request that the arbitrator’s decision be found to be binding on any issue in the instant case. Neither party excepted to that ruling and we find no cause to defer to the arbitrator’s non-binding ruling on any issue, although we do consider it for its persuasive value. (p. 15, fn. 1.)

PERB’s analytic framework for discrimination allegations differs from that applied by an arbitrator making a just cause determination, though the facts evidencing intent may also be relevant in a just cause determination. (p. 15, fn. 1.)

To demonstrate that an employer has discriminated or retaliated against an employee in violation of the Act, the charging party must show: (1) the employee exercised rights under HEERA; (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, meaning that protected activity was at least a motivating or substantial reason for the adverse action. If a charging party proves each of these elements, a respondent may still prevail by proving that it also had a non-discriminatory reason and would have taken the same actions based solely on that reason, even absent any protected activity. (pp. 14-15.)

To resolve a dispute over whether supervisor knew Charging Parties participated in a lunchtime union demonstration, the Board needed to make a credibility determination. The ALJ credited the supervisor over Charging Parties on this point because of non-observational factors, noting alleged inconsistencies in Charging Party’s testimony and finding supervisor’s testimony relatively consistent. While the Board generally defers to an ALJ’s credibility determination based on observational factors, it accords no particular deference to those aspects of an ALJ's credibility determination, such as those relied on here, that are not based on the ALJ’s firsthand observations. The Board found that supervisor was repeatedly inconsistent or less than truthful when asked about union activity in the shop. Likewise, the Board rejected employer’s arguments that Charging Party was not credible because of minimal differences in various statements he made during the employer’s investigation. Both Charging Party and supervisor showed efforts—common among witnesses in a fraught trial—to bend events to their pre-determined viewpoint. Neither is inherently more believable than the other as to every point. (pp. 16-21.)

To resolve a dispute over whether supervisor knew Charging Parties participated in a lunchtime union demonstration, the Board needed to make a credibility determination. The ALJ credited the supervisor over Charging Parties on this point because of non-observational factors, noting alleged inconsistencies in Charging Party’s testimony and finding supervisor’s testimony relatively consistent. While the Board generally defers to an ALJ’s credibility determination based on observational factors, it accords no particular deference to those aspects of an ALJ's credibility determination, such as those relied on here, that are not based on the ALJ’s firsthand observations. The Board found that supervisor was repeatedly inconsistent or less than truthful when asked about union activity in the shop. Likewise, the Board rejected employer’s arguments that Charging Party was not credible because of minimal differences in various statements he made during the employer’s investigation. Both Charging Party and supervisor showed efforts—common among witnesses in a fraught trial—to bend events to their pre-determined viewpoint. Neither is inherently more believable than the other as to every point. (pp. 16-21.)

Timing of the employer’s adverse action in relation to the protected conduct is an important factor relating to strength of the unlawful inference to be drawn, but temporal proximity alone is generally insufficient to demonstrate the requisite nexus. Charging Parties engaged in the protected union picket on November 4, 2016 and were placed on “investigative leave” on November 29, 2016. The close temporal proximity between Charging Parties’ protected activity and the initiation of the disciplinary process supports the inference of unlawful motive. (pp. 22-23.)

Supervisor deviated from his established procedures with Charging Parties when he initiated a disciplinary investigation. We may infer unlawful motive from a respondent’s departure from existing practices in its dealings with the charging party. To establish such an inference, the charging party must demonstrate what the respondent’s practice is and how the respondent deviated from that practice. Here, supervisor had a practice of reviewing plumbers’ time entries and on-call punches daily, making edits as necessary. He regularly made edits because of plumbers’ errors and did not initiate discipline for such errors. Instead, he contacted plumbers to reconcile inconsistencies in their time records and correct mistakes. Thus, supervisor broke with his customary practice when he did not contact Charging Parties about their unusual timecard punches to ask why they had punched call-back twice. This is probative of unlawful motive because supervisor had good reason to know that there were unusual circumstances and confusion on the hectic days in question, immediately following Thanksgiving. (pp. 23-24.)

An inadequate or cursory investigation supports an inference of unlawful motive because it reveals an employer’s disinterest in whether misconduct truly occurred and thus that the stated reasons for the adverse action are not the actual motivating reasons. While our cases often use the word “cursory” to describe this indicium, it is not merely hasty or perfunctory investigations that indicate unlawful motive. We have found unlawful motive where an employer makes an allegation of misconduct against an employee but fails to investigate critical elements of the accusation. Likewise, an investigation tailored to produce a predetermined outcome indicates unlawful motive. Context is critical when examining whether an inadequate or cursory investigation signals unlawful motive. For example, the Board found that a brief investigation of a grievance was not evidence of unlawful motive where a grievance procedure allowed only five days to conduct an investigation and respond. Here, the University failed to investigate the several critical predicate facts underlying its conclusion that Charging Parties knowingly violated policy, including by seeking out witnesses, campus surveillance, mileage records or other relevant evidence. These missing parts of the investigation were not needless redundancies, but rather go to the heart of whether Charging Parties engaged in conscious and knowing violations as the University claimed when it terminated them. Thus, the University’s failure to pursue these facts indicates disinterest in whether the alleged misconduct actually occurred and strongly signals unlawful motive. Indeed, because an inadequate investigation can prevent an employer from learning the true facts, it can, as here, result in a disproportionate punishment, which is a further indicator of unlawful motive. (pp. 24-28, 41.)

University failed to investigate the several critical predicate facts underlying its conclusion that Charging Parties knowingly violated policy, including by seeking out witnesses, campus surveillance, mileage records or other relevant evidence. These missing parts of the investigation were not needless redundancies, but rather go to the heart of whether Charging Parties engaged in conscious and knowing violations as the University claimed when it terminated them. Thus, the University’s failure to pursue these facts indicates disinterest in whether the alleged misconduct actually occurred and strongly signals unlawful motive. Indeed, because an inadequate investigation can prevent an employer from learning the true facts, it can, as here, result in a disproportionate punishment, which is a further indicator of unlawful motive. (pp. 27-28, 41.)

Some cases have interpreted City of Santa Monica (2011) PERB Decision No. 2211-M, to stand for the proposition that the failure to interview an employee before taking adverse action is evidence of unlawful motive only if the employer routinely interviews employees under such circumstances. This is incorrect. “Departure from established practice” is a distinct indicium of unlawful motive. “Departure from established practice” and “cursory investigation/disproportionate punishment” are not necessarily interrelated. Thus, regardless of whether an employer routinely interviews employees before taking adverse action, failing to do so indicates unlawful motive where it reveals an employer’s disinterest in whether misconduct truly occurred. In City of Santa Monica, it was because the employer had a video recording of the misconduct that its failure to interview the employee did not show a cursory investigation. The fact that the employer did not have a practice of conducting interviews before releasing employees from probation defeated the claim that it departed from established practices. (p. 26, fn. 6.)

Some cases have interpreted City of Santa Monica (2011) PERB Decision No. 2211-M, to stand for the proposition that the failure to interview an employee before taking adverse action is evidence of unlawful motive only if the employer routinely interviews employees under such circumstances. This is incorrect. “Departure from established practice” is a distinct indicium of unlawful motive. “Departure from established practice” and “cursory investigation/disproportionate punishment” are not necessarily interrelated. Thus, regardless of whether an employer routinely interviews employees before taking adverse action, failing to do so indicates unlawful motive where it reveals an employer’s disinterest in whether misconduct truly occurred. In City of Santa Monica, it was because the employer had a video recording of the misconduct that its failure to interview the employee did not show a cursory investigation. The fact that the employer did not have a practice of conducting interviews before releasing employees from probation defeated the claim that it departed from established practices. (p. 26, fn. 6.)

When an employer considers only evidence adverse to the employee and refuses to consider evidence supporting a competing version of events, the Board has found a suspiciously cursory investigation. Here, management’s failure to investigate indicated a rush to judgment and an unlawful motive. (p. 34.)

The Board disallowed University from relying on evidence that Charging Party was dishonest during a service call because that evidence came to light only because of supervisor’s discriminatory departure from practice. (p. 35.)

It is evidence of unlawful motive if an employer presumes dishonesty, without a full investigation, where other reasonable interpretations exist. (p. 37, fn. 9.)

PERB precedent protects employees’ attempts to assert contractual rights, but not if those efforts are fraudulent. If the University had evidence of a truly fraudulent claim, rather than a stark disagreement in how to interpret the relevant contract and policy language, the outcome here would be different. (p. 39, fn. 10.)

When the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” 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. To properly scrutinize an employer’s affirmative defense, we must look both at initiation of the disciplinary process and the discipline itself. Where an adverse action results from a process triggered at least in part by an unlawful motive, the affirmative defense fails if the process would not have been triggered absent the protected activity. Here, the record persuades us that supervisor’s decision to investigate Charging Parties was influenced by their protected activity. It is highly unlikely that a disciplinary investigation would have begun at all had supervisor used his customary practice and contacted Charging Parties to explain their unusual timecard punches. For instance, Charging Party would have explained that he thought he was supposed to punch in that way because he had logged out, in which case supervisor could have directed him to do it differently in the future and then could have deleted the punches. In this case, the disciplinary investigation supervisor triggered based on his unlawful motive was the sole cause of the full year audit. Thus, the University does not meet its burden as to any of the allegedly nondiscriminatory reasons for the adverse actions. (pp. 41-44.)

When the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” 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. To properly scrutinize an employer’s affirmative defense, we must look both at initiation of the disciplinary process and the discipline itself. Where an adverse action results from a process triggered at least in part by an unlawful motive, the affirmative defense fails if the process would not have been triggered absent the protected activity. Here, the record persuades us that supervisor’s decision to investigate Charging Parties was influenced by their protected activity. It is highly unlikely that a disciplinary investigation would have begun at all had supervisor used his customary practice and contacted Charging Parties to explain their unusual timecard punches. For instance, Charging Party would have explained that he thought he was supposed to punch in that way because he had logged out, in which case supervisor could have directed him to do it differently in the future and then could have deleted the punches. In this case, the disciplinary investigation supervisor triggered based on his unlawful motive was the sole cause of the full year audit. Thus, the University does not meet its burden as to any of the allegedly nondiscriminatory reasons for the adverse actions. (pp. 41-44.)