December 16, 2010

Union animus

Union animus
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704

Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).

PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.

Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.

PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.

The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.

The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.

Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”

Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.

As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.

The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.

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