Decision 1977M – City of Long Beach

LA-CE-432-M

Decision Date: September 16, 2008

Decision Type: PERB Decision

Description:  Montoya alleged that the City violated MOU mileage reimbursement provision and also retaliated against him for filing a grievance and an EEOC complaint by issuing him a counseling memo.  Montoya raised new allegations and evidence on appeal and failed to properly serve City with filings.

Deposition:  The Board affirmed the dismissal of the charge.  The employee had no standing as an individual to allege a unilateral change and that the charge provided no evidence of a nexus between the employee’s grievance and the counseling memo.  The Board found no good cause to consider new allegations and evidence raised on appeal, except for two documents that did not exist at the time the charge was dismissed.  The Board also excused the employee’s failure to comply with PERB’s service requirements because the City had notice of the filings and was not prejudiced by late service.

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Perc Vol: 32
Perc Index: 140

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Filing a grievance is protected activity under MMBA.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

Counseling memorandum that threatened future discipline and was placed in employee’s personnel file constituted adverse action.


504.14000 – Other/In General

Retaliation charge properly dismissed for failure to establish a nexus between protected activity and adverse action.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.03000 – Standing

Individual employee did not have standing to allege a unilateral change.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

Under PERB Regulation 32635(b), the Board may not consider new allegations or new supporting evidence on appeal unless the charging party establishes good cause. Good cause found to consider supporting evidence raised for the first time on appeal because the documents did not exist at the time the charge was dismissed. No good cause to consider remainder of new supporting evidence and new allegations raised on appeal when charging party knew of the evidence and allegations before dismissal of the charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.05000 – Parties; Service

Board will excuse party’s failure to comply with PERB Regulation 32140 when the opposing party has received actual notice of the filing and defective service did not prejudice the opposing party. Charging party entitled to presumption of service because he provided PERB with a valid proof of service. Respondent failed to rebut the presumption of service and therefore charged with actual notice of charging party’s filings. Respondent not prejudiced by charging party’s failure to concurrently serve it with filings because Board allowed respondent full 20 days to file a response and response was filed.