Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2761M	County of San Joaquin 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case PERB uses one of two tests in assessing discrimination cases. If an employer’s conduct facially discriminates based on protected activity, that is “discrimination in its simplest form,” and PERB may infer unlawful discrimination without further evidence of motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) Common examples of facial discrimination include: (1) providing different pay, benefits, or other working conditions based explicitly on union membership or other protected activity; or (2) changing policies in response to protected activity where the operative comparison is not between two different groups of employees, but between an employer’s policies before and after the exercise of protected rights. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 40 (Contra Costa); City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11.) Thus, the conduct at issue may, but need not, involve disparate conduct toward different employee groups. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 81; LA Superior Court, supra, PERB Decision No. 2566-C, p. 15.) Although inherently destructive conduct and facial discrimination do not always equate to one another, the same conduct can meet both standards, and in such circumstances the employer’s affirmative defense is the same under the two standards. (See, e.g., Contra Costa, supra, PERB Decision No. 2632-M, pp. 36 & 40.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs County allowed nurses to use paid leave for furloughs that have no relationship to protected activity. Singling out the post-strike furloughs for differential treatment from all other furloughs is both facially discriminatory and inherently destructive of protected rights. The County did not justify such conduct with a valid business necessity, much less one reflecting circumstances beyond its control leaving it with no other alternative. Even applying the Novato framework, the County’s disparate treatment of post-strike days meets the nexus element, while illustrating that the County would likely have permitted nurses to use paid leave, absent protected activity. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs County engaged in facial discrimination when it granted preference to non-strikers over strikers by prohibiting striking nurses from returning to work at the end of the strike period for three days unless called to work. Singling out employees who honored picket lines during the strike and reducing their post-strike work opportunities—while granting greater opportunities to employees who did not strike—constitutes facial discrimination under PERB’s discrimination standard and inherently destructive conduct under PERB’s interference standard. (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423 [noting that, under NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, favoring non-strikers over strikers constitutes “discrimination in its simplest form”].) To meet its affirmative defense burden, the County was required to prove that it acted solely due to circumstances beyond its control and no alternative course of action was available. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, pp. 36 & 40.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs Executing a contract specifically for strike replacements is not a mandatory subject of bargaining, but the effects of that decision on bargaining unit employees are bargainable, because post-strike work opportunities, post-strike furloughs, use of paid leave, and appropriate payroll codes are bargainable effects on mandatory subjects of bargaining. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs A public health care employer that prohibits bargaining unit employees from work after an economic or unfair practice strike, due to a minimum shift guarantee for strike replacements, can typically establish an affirmative defense to an interference claim and avoid a finding of discrimination only if it can prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical inpatient services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of a prior guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees. Applying this standard, Board found employer did not meet any of these three required elements. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs Employer harmed protected rights when it prohibited employees from working for multiple days after a strike due to a minimum shift guarantee for strike replacements, prevented employees from using accrued paid leave for these days, and designated both strike days and mandatory days off with a payroll code that can be used for discipline. These actions discouraged employees from authorizing future strikes, and therefore had to be narrowly tailored to a compelling business necessity. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Lockouts and Permanent Replacement of Strikers A California public sector employer cannot lockout or permanently replace its employees. (Fremont Unified School District (1990) 29 PERB Order No. IR-54, pp. 10-11.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.02000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Employer Policies or Actions Regarding Strikes or Picketing Employer harmed protected rights when it prohibited employees from working for multiple days after a strike due to a minimum shift guarantee for strike replacements, prevented employees from using accrued paid leave for these days, and designated both strike days and mandatory days off with a payroll code that can be used for discipline. These actions discouraged employees from authorizing future strikes, and therefore had to be narrowly tailored to a compelling business necessity. more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 406.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; In General A California public sector employer cannot lockout or permanently replace its employees. (Fremont Unified School District (1990) 29 PERB Order No. IR-54, pp. 10-11.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards The Board first established its current interference test in Carlsbad Unified School District (1979) PERB Decision No. 89, p. 5 (Carlsbad). To establish a prima facie interference case under the Carlsbad standard, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes we enforce. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) A charging party need not establish that the employer held an unlawful motive. (Ibid.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive (which we sometimes label “comparatively slight”), the respondent may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, we balance the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at p. 36, fn. 19.) PERB precedent considers interfering conduct and employer justifications on a continuum, holding that if conduct rises to the level of “inherently destructive,” then the employer must justify it by demonstrating circumstances beyond its control, leaving it with no alternative course of action. (Carlsbad, supra, PERB Decision No. 89, pp. 10-11.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees PERB precedent requires an employer seeking an essential employee injunction to contact all companies or other entities potentially able to provide replacement employees or services. (See County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.) more or view all topics or full text.	45	92	04/12/21
2761M	County of San Joaquin 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice It is an unfair practice for a public sector union strike to cause an imminent and substantial threat to the public’s health or safety, and a union may lawfully strike pre-impasse only based upon employer unfair practices. (Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 8 & 10-11; County of San Mateo (2019) PERB Order No. IR-61-M, pp. 5-6.) more or view all topics or full text.	45	92	04/12/21
2704H	Regents of the University of California 505.03000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 300.01000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; In General 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation It is evidence of unlawful motive if an employer presumes dishonesty, without a full investigation, where other reasonable interpretations exist. (p. 37, fn. 9.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.02000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Disparate Treatment 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action 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.) more or view all topics or full text.	44	158	04/14/20
2704H	Regents of the University of California 1105.14000: CASE PROCESSING PROCEDURES; EVIDENCE; Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements 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.) more or view all topics or full text.	44	158	04/14/20