Decision 1970H – Trustees of the California State University
LA-CE-899-H
Decision Date: July 18, 2008
Decision Type: PERB Decision
Description: CSEA alleged that CSU retaliated against an employee for filing grievances and an unfair practice charge by failing to interview him for a permanent position which he had held as a temporary appointee for the preceding three years
Disposition: The Board adopted the ALJ’s conclusion that Respondent retaliated against the employee for engaging in protected activity. The Board also held that no adverse inference is to be drawn when a party fails to a call favorable witness to testify if the other party could also have called the witness.
Perc Vol: 32
Perc Index: 118
Decision Headnotes
300.05000 – Grievances
Employee engaged in protected activity by filing three grievances and an unfair practice charge.
300.09000 – Participation in Board Process
Employee engaged in protected activity by filing three grievances and an unfair practice charge.
503.06000 – Blacklisting; Hire; Refusal to Recommend
Denial of opportunity to interview for permanent position when employee had held same position for three years as a temporary appointee constituted adverse action.
504.06000 – Meritorious or Satisfactory Work Record; Prior Promotion or Wage Increase
Ranking of applicant last among candidates, when he had held position in temporary status for three years with no discipline or unsatisfactory performance reviews, supported inference of unlawful motive.
504.14000 – Other/In General
Modifying job description to make former temporary holder of position less competitive as an applicant for permanent position and appointing a selection committee where two out of four members were biased against the applicant supported inference of unlawful motive.
505.13000 – Other
Employer may rebut inference of unlawful motive by showing it would have taken the same action had the employee not engaged in protected activity. While employer had legitimate reasons for modifying job description and ranking applicant last among four candidates, employer failed to establish that it would have taken these same actions had applicant not engaged in protected activity when he held the position as a temporary appointee.
1105.16000 – Adverse Inferences
Based on party’s failure to call presumably favorable witness to testify at hearing, ALJ drew inference that witness’ testimony would have been adverse to party. In light of California Evidence Code section 412, PERB does not draw an adverse inference when either party could have called the witness to testify but neither did so.