Decision 2712M – City and County of San Francisco

Union alleged that employee engaged in protected activity by serving as union chapter president, e-mailing employer regarding health and safety concerns, e-mailing employer to document an account of harassment and discrimination, requesting and receiving release time for bargaining training, seeking union assistance for a recruitment process, seeking to meet and confer with the employer over a job reclassification and its effects, and participating in successor contract negotiations between the union and the employer. (p. 19.)

Union alleged that employee engaged in protected activity by e-mailing management representatives regarding health and safety concerns relating to working conditions. (p. 19.)

Under Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, an employee’s role as a union officer constitutes protected activity irrespective of whether the employee exercises specific duties in that role. Thus, there is no categorical requirement that a union’s retaliation charge on behalf of a union officer necessarily allege specific duties the officer exercised. A charging party seeking to prove employer knowledge and nexus may be well-advised to introduce evidence of specific times a union officer exercised his or her role, but such evidence may not be needed if the charging party presents other strong evidence and the respondent is not able to present a persuasive non-discriminatory explanation for having taken adverse action. (p. 17.)

Employee speech is protected if it is “related to matters of legitimate concern to the employees as employees so as to come within the right to participate in the activities of the employee organization for the purpose of representation on matters of employer-employee relations.” (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 15, quoting Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12.)

Absent evidence that a respondent took action that was facially or inherently discriminatory, a charging party has the burden to establish a prima facie case of retaliation by proving, via 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 interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (p. 15.)

PERB uses an objective test to determine whether an employer’s action is adverse. The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. The Office of the General Counsel correctly found that union alleged the employer took adverse actions against employee by not promoting her to an open, more highly paid position, and by issuing her a notice of intent to suspend. In addition, PERB found that union alleged the following adverse actions: (1) failing to encourage employee to take the promotional exam while encouraging her counterparts to do so; (2) failing to notify employee how she could be accommodated to interview for an open position during a period when she would be out on disability; and (3) delaying meeting with employee and declining to provide timely and accurate information concerning the recruitment. A reasonable person in the employee’s circumstances would view such alleged actions as adverse to her employment for multiple reasons, including because they impeded her efforts to progress in her career and suggested any effort on her part to apply for one of the promotional positions would be disfavored. (pp. 19-20.)

The Office of the General Counsel correctly found that union alleged the employer took adverse actions against employee by not promoting her to an open, more highly paid position. (p. 20.)

Written warning and performance improvement plans were adverse actions. (p. 20.)

Union’s allegations regarding the employer’s unusual, discriminatory, or otherwise suspicious conduct surrounding job reclassification constituted an adequate factual basis to state a prima facie case that the employer may have been substantially motivated by unlawful animus in its later adverse actions against employee. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17 [earlier events are relevant in assessing a respondent’s motive]; County of Santa Clara (2019) PERB Decision No. 2629-M, adopting proposed decision at p. 30 [“Context is always relevant in determining motive.”].) (pp. 26-27.) Although employer’s issuance of a performance improvement plan and related written warning and letter of instruction occurred more than six months prior to the amended charge, those actions likely bear on the ultimate determination of employer motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17.) However, PERB did not consider whether the complaint should allege those earlier adverse actions to constitute MMBA violations, because they appeared to have occurred outside the six-month statute of limitations. (p. 20, fn. 4.)

Temporal proximity or lack thereof is rarely the sole determinant of nexus. (p. 17.)

While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, it has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or 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. (p. 21.)

If the charging party meets its burden to establish each of the elements of a prima facie case of retaliation, 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. (pp. 15-16.)

In resolving an appeal of a dismissal, the Board reviews OGC’s decision de novo. PERB assumes that charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. At this stage, PERB generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. It is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), or contested, colorable legal theories, OGC should issue a complaint and generally a formal hearing is needed. Mere legal conclusions are insufficient to state a prima facie case. However, where a material factual dispute turns on the respondent’s state of mind, we take into account that motive is generally within respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. We therefore impose on charging party a relatively low burden to allege facts tending to show the requisite state of mind. (pp. 2-3.)

PERB has relatively few formal pleading rules, though PERB Regulation 32615, subdivision (a)(5) requires that a charging party should provide a clear and concise statement of the facts alleged to constitute an unfair practice. OGC need not scour charges looking for obscure deviations from policy that a charging party fails to point out, but PERB Regulation 32620, subdivision (b)(1) requires OGC to assist the charging party in stating the information that Regulation 32615 requires. These standards apply irrespective of parties’ legal sophistication or whether they are represented by counsel. PERB’s efforts to provide equal access to justice to all are evident, for instance, in its decision in National Union of Healthcare Workers (2012) PERB Decision No. 2249-M. There, PERB noted that while it is useful to explain to a charging party that the goal of an unfair practice charge should be to specify the “who, what, when, where and how” of the charge, that formulation is not a “litmus test” or “hurdle over which every charging party must leap at the risk of dismissal.” (Id. at p. 15.) Sound public policy reasons support PERB’s preference for hearing cases on their merits, notwithstanding technical non-compliance with matters of form. “We are sensitive to the fact that PERB is not a court, but an administrative agency, and that the formalities of practice and procedure in the judicial system are not always appropriate for fulfilment of PERB’s mission, which includes assisting parties and representatives who are laypersons.” (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 28.) (p. 22., fn. 7.)

PERB assumes that charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. At this stage, PERB generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. It is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), or contested, colorable legal theories, OGC should issue a complaint and generally a formal hearing is needed. Mere legal conclusions are insufficient to state a prima facie case. However, where a material factual dispute turns on the respondent’s state of mind, we take into account that motive is generally within respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. We therefore impose on charging party a relatively low burden to allege facts tending to show the requisite state of mind. (pp. 2-3.)

Material factual disputes as to the employer’s motive or motives in not promoting an employee who had engaged in protected activity required resolution at a formal hearing. Among other issues, at hearing the parties would be able to contest evidentiary items such as an organizational chart allegedly showing pre-interview bias, as well as any evidence regarding the relative skills, experience, references, or interview performances of the interviewees. The weight of the overall record would ultimately determine the import of these and other factors. (pp. 23-25.)