Decision 1459S – State of California

LA-CE-556-S

Decision Date: August 29, 2001

Decision Type: PERB Decision

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Perc Vol: 25
Perc Index: 32108

Decision Headnotes

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
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.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.