Decision 1459S – State of California
LA-CE-556-S
Decision Date: August 29, 2001
Decision Type: PERB Decision
Description: The Board denied the charging party’s motion to amend the unfair practice charge and complaint.
Disposition: Motion to amend the unfair practice charge and complaint denied. Charging party has not alleged with a clear and concise statement in the motion that certain persons were acting for the employer, as they were merely employees defending a lawsuit brought by the charging party; there is no equitable tolling of the statute of limitations; and an employer has no obligation to create for a prospective applicant a particular position.
Perc Vol: 25
Perc Index: 32108
Decision Headnotes
503.01000 – In General
Defending a lawsuit, pointing out defects in the suit and that losing party may be subject to attorney’s fees is not an adverse action; p. 6.
503.15000 – Other
Defending a lawsuit, pointing out defects in the suit and that losing party may be subject to attorney’s fees is not an adverse action; p. 6.
505.01000 – In General
An employer is not under any obligation to create a position or the kind of position being sought for a prospective applicant; p. 7.
1101.03000 – Computation of Six-Month Period
The Dills Act states that PERB may not issue a complaint on an underlying charge based upon an alleged unfair practice occurring more than six months before the filing of the charge. This limitations period is mandatory, and is a jurisdictional bar to charges filed outside the six-month period. The limitations period begins to run once a charging party knows or should have known of the conduct underlying the charge. PERB has determined that a charging party's belated discovery of the legal significance of the underlying conduct does not excuse an otherwise untimely filing; p. 6. The doctrine of equitable tolling, under which the statutory limitations period is tolled while a charging party pursues an alternative legal remedy, is not applicable to the statutes administered by PERB; p. 7.
1400.01000 – In General
Party seeking to establish agency bears burden of establishing it by a preponderance of the evidence. Attorneys representing the State in a lawsuit brought by charging party were not shown to be supervisors; p. 6.
1503.03000 – Regulations Considered (By Number) (Continued)
PERB Regulation 32647 allows the charging party, after issuance of a complaint, to move to amend the complaint by filing a request to amend the complaint and an amended charge meeting the requirements of section 32615; p. 5. PERB Regulation 32615(a)(5) requires that an unfair practice charge include a "clear and concise statement of the facts and conduct alleged to constitute an unfair practice." The charging party's burden thus includes alleging the "who, what, when, where and how" of an unfair practice. Mere legal conclusions are not sufficient to state a prima facie case; p. 5.