Decision 0869H – California State University, Hayward (Dees)

SF-CE-252-H

Decision Date: February 25, 1991

Decision Type: PERB Decision

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Perc Vol: 15
Perc Index: 22051

Decision Headnotes

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Pursuant to the Board's decision in North Sacramento School District (1982) PERB Decision No. 264, suspicious timing is evidence which suggest an unlawful motive; proposed decision; p. 23.


504.14000 – Other/In General

The totality of the circumstance suggests a hostile attitude from which an unlawful motive may be drawn from the record as a whole; p. 24, proposed dec.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

After charging party has proven prima facie case, to avoid finding of discrimination, employer must show that it would have taken adverse action against employee even if that employee had not engaged in protected activity; pp. 20-21, proposed dec. CSU met its burden of showing that employee would have been terminated in absence of protected activity where CSU showed that it was employee's insistence on certain working conditions and his mental health and not his protected activities which caused his termination; pp. 15-16, proposed dec.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.02000 – Background Evidence and Matters Not Alleged

Trier of fact may consider totality of evidence, even events outside statute of limitations to draw inferences; p. 23, proposed dec.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

An inference of unlawful motive, may be drawn from the record as a whole; p. 24, proposed dec. Inference of unlawful motive may be drawn if reasonably based on the totality of the circumstances; p. 24, proposed dec.

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

Violations of the Education Code and/or the constitution must be taken up in another forum other than PERB; proposed decision; p. 32.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Participation in Board's unfair practice procedures is protected conduct; p. 22, proposed dec.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

To establish violation of section 3571(a), charging party bears the burden of showing that employee engaged in protected activity, that the employer knew of the activity, and that the protected activity was a motivating factor in the transfer; p. 20, proposed dec.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

In applying the "but for" test in discrimination cases, trier of fact is required to weigh both direct and circumstantial evidence in order to determine whether an action would not have been taken against an employee "but for" the exercise of protected rights; p. 21, proposed dec. After charging party has proven prima facie case, to avoid finding of discrimination, employer must show that it would have taken adverse action against employee even if that employee had not engaged in protected activity; pp. 20-21, proposed dec. CSU met its burden of showing that employee would have been terminated in absence of protected activity where CSU showed that it was employee's insistence on certain working conditions and his mental health and not his protected activities which caused his termination; pp. 24-28, proposed dec. health and not his protected activities which caused his termination; pp. 24-28, proposed dec.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Under Palo Verde Unified School District (1988) PERB Decision No. 689, Board applied an objective test in determining whether action taken by the employer actually resulted in harm to subject employee; p. 20, proposed dec.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.14000 – Involuntary Leaves

It is clear that an employee suffers adverse action as a result of CSU's unilateral decisions to place employee on leave and to eventually terminate him; p. 22, proposed dec.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.02000 – Board’s Jurisdiction To Interpret Contracts

The Board has no authority to enforce collective bargaining agreements; however, the Board has the authority to interpret a contract to determine if an unfair practice has been committed; p. 30; proposed dec.