PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period

PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
CSEA Local 1000 and Westchester County, 32 PERB 3017

Westchester County terminated probationary employee Michael Holcomb.

CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.

PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.

Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”

PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.

PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”

PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
.