Decision 1804H – Regents of the University of California
Decision Date: January 4, 2006
Decision Type: PERB Decision
Description: The Board dismissed the unfair practice charge which alleged the university failed to reclassify charging party’s position because of his protected activity.
Disposition: The Board found the charging party failed to sufficiently allege a prima facie case of retaliation or interference.
Perc Vol: 30
Perc Index: 44
400.01000 – In General; Standards
The test for whether a respondent has interfered with the rights of employees under the HEERA does not require that unlawful motive be established, only that at least slight harm to employee rights results from the conduct. In order to establish a prima facie case of unlawful interference, the charging party must establish that the respondent's conduct tends to or does result in some harm to employee rights granted under EERA. A violation may only be found if HEERA provides the claimed rights. A finding of coercion does not require evidence that the employee actually felt threatened or intimidated or was in fact discouraged from participating in protected activity.
501.01000 – In General; Elements of Prima Facie Case
Charging Party must show protected conduct, that the employer knew of protected conduct and a nexus between the protected conduct and any adverse actions.
503.01000 – In General
Evidence of adverse action is also required to support a claim of discrimination or reprisal. In determining whether such evidence is established, the Board uses an objective test and will not rely upon the subjective reactions of the employee. The test which must be satisfied is not whether the employee found the employer's action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee's employment.
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation
To establish a prima facie case of constructive discharge, a charging party must demonstrate: (1) that the burden imposed upon the employee must cause, and be intended to cause, a change in the employee's working conditions so difficult or unpleasant as to force the employee to resign; and (2) the burden was imposed because of the employee's protected activity.
1100.01000 – In General/Prima Facie Case
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." Thus, the charging party's burden 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.
1100.03000 – Standing
The Board has held that an individual employee does not have standing to pursue violations of the rights of an employee organization. The exclusive representative of the clerical unit is the sole entity that is entitled to question, challenge, or bargain the effects related to the University's elimination of a classification, or its creation of a new classification, including whether or not the new classification belongs in the clerical unit.
1101.03000 – Computation of Six-Month Period
It is well-settled that the limitations period begins to run once a charging party knows or should have known of the conduct underlying the charge. In addition, a charging party's belated discovery of the legal significance of the underlying conduct does not excuse an otherwise untimely filing.