Decision 1762S – State of California (Department of Consumer Affairs)

SA-CE-1451-S

Decision Date: April 15, 2005

Decision Type: PERB Decision

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Perc Vol: 29
Perc Index: 121

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

The Board lacks jurisdiction to address claims of race or gender discrimination unless they also allege an independent violation of the Dills Act.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

Under the Dills Act, Weingarten does not confer a right to representation by private counsel instead of her exclusive representative because Weingarten rights are grounded in the employee’s right to participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations and the corresponding right of employee organizations to represent their members in their employment relations with public school employers.


504.14000 – Other/In General

The charge did not allege a prima facie case of retaliation since PERB does not enforce whistleblower statutes, the charge did not allege facts showing the State’s improper motive, the dates or nature of her alleged union activity, and the State’s knowledge of her steward training.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

The charge did not allege a prima facie case of retaliation since PERB does not enforce whistleblower statutes, the charge did not allege facts showing the State’s improper motive, the dates or nature of her alleged union activity, and the State’s knowledge of her steward training. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.”

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of Knowledge of Protected Activity

The charge did not allege a prima facie case of retaliation since PERB does not enforce whistleblower statutes, the charge did not allege facts showing the State’s improper motive, the dates or nature of her alleged union activity, and the State’s knowledge of her steward training. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.”

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

Dills Act Section 3515.5 does not provide a right to self-representation. While Wilson-Combs has the right to meet with her employer without the union, the State is not required to meet and confer with her over terms and conditions of employment.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Dills Act Section 3515.5 does not provide a right to self-representation. While Wilson-Combs has the right to meet with her employer without the union, the State is not required to meet and confer with her over terms and conditions of employment.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

Dills Act Section 3515.5 does not provide a right to self-representation. While Wilson-Combs has the right to meet with her employer without the union, the State is not required to meet and confer with her over terms and conditions of employment. Wilson-Combs right to self-representation under the Dills Act does not include the right to be represented by private counsel. The State’s duty to bargain is owed to the exclusive representative, not to individual employees.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

The Board agent fulfilled the requirements of PERB Regulation 32620 in processing the charge. As required by PERB Regulation 32635, the appeal did not provide facts supporting its allegations that the Board agent did not properly investigate the charge, used ex parte communications with the State in rendering his decision and failed to determine whether the charge should be deferred to arbitration. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.”

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

As required by PERB Regulation 32635, the appeal did not provide facts supporting its allegations that the Board agent did not properly investigate the charge, used ex parte communications with the State in rendering his decision and failed to determine whether the charge should be deferred to arbitration. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.”

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

As required by PERB Regulation 32635, the appeal did not provide facts supporting its allegations that the Board agent did not properly investigate the charge, used ex parte communications with the State in rendering his decision and failed to determine whether the charge should be deferred to arbitration.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

As required by PERB Regulation 32635, the appeal did not provide facts supporting its allegations that the Board agent did not properly investigate the charge, used ex parte communications with the State in rendering his decision and failed to determine whether the charge should be deferred to arbitration. The Board agent fulfilled the requirements of PERB Regulation 32620 in processing the charge. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.”