Decision 1742M – Contra Costa County Health Services Department


Decision Date: January 26, 2005

Decision Type: PERB Decision

Description:  Alleged unfair practice charged employer discriminated against charging party for protected activity.

Disposition:  Board found complaining about malfunctioning lock on narcotics cabinet not protected activity.  Appeal denied where requirements of PERB Regulation 32635 are not met.  Appeal must set forth the specific issues of procedure, fact, law or rationale to which the appeal is taken, identify the page or part of the dismissal to which each appeal is taken and grounds for each issue stated.

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Perc Vol: 29
Perc Index: 65

Decision Headnotes

1100.05000 – Dismissal of Charge; Appeal

Charging party’s appeal did not comply with PERB Regulation 32635(a) as required for an appeal to the Board. Instead, the appeal reiterated the facts alleged in the unfair practice charge and did not specifically address why the dismissal should be reversed. (adopting warning letter at p. 2.)

504.05000 – Union Activity of Discriminatee

Even if charging party’s statement to a fellow charge nurse that he was pro-union and had served as a union steward during previous employment experiences constituted protected activity, the charge failed to demonstrate that the county knew of charging party’s statements and that the county terminated charging party because of his protected activity. While charging party’s termination came within three weeks of his protected statement, charging party received his first negative evaluation before he made the statement. The charge failed to present any other nexus factors. (adopting warning letter at p. 3.)

1400.01000 – In General

To establish an agency relationship between an employee and the employer, the Board has held that a charging party must allege facts which show that the employee was acting with some direction, instigation, approval or ratification by the employer. (Compton Community College District (1987) PERB Decision No. 649; Inglewood Unified School District (1990) PERB Decision No. 792.) In Moreland Elementary School District (1982) PERB Decision No. 227, the Board stated that nonsupervisory employees would not be found agents absent evidence that such employees were informants or were in some other manner serving as agents or representatives of the employer. Herein, the charge fails to present any facts demonstrating a fellow charge nurse was acting as an informant for management; moreover, she was not a supervisor nor did she serve as charging party’s supervisory in any capacity. As such, this allegation fails to state a prima facie case. (adopting warning letter at p. 3, adopting dismissal letter at p. 2.)