Decision 2370H – Regents of the University of California (San Francisco)

SF-CE-939-H

Decision Date: April 18, 2014

Decision Type: PERB Decision

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Perc Vol: 38
Perc Index: 155

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.03000 – Enforcement of Settlement Agreements and Contracts 3541.5(b); 3514.5(b); 3563.2(b)

The ALJ did not rule on the merits of charging party’s grievance, but merely described the events that occurred after the Step 2 meeting based on evidence that was presented at hearing and found credible by the ALJ.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

In making the adverse action determination here, charging party’s former position, which no longer existed, could not provide the basis for comparison with the two lower level appointments offered by employer in settlement of the grievance. The appropriate comparison in determining whether the employer’s actions were adverse would be between the two appointments offered and no appointment at all (i.e., lay-off), in which case the employer’s grievance settlement offer was not adverse.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

PERB Regulation 32176 specifically states: “Hearsay evidence is admissible, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” The essence of the hearsay rule is that the declarant is not at the tribunal and subject to cross-examination and is not available for the trier of fact to assess his or her credibility. The union was not a party to this action. Therefore, the hearsay exception for admissions by a party did not apply to testimony supplied by respondent’s witness that union representative had admitted that grievance remedy complied with the collective bargaining agreement. Respondent’s witness’s hearsay statement that union agreed that grievance remedy complied with the collective bargaining agreement is admissible not for its truth, but to demonstrate his state of mind. (Cal. Evid. Code, § 1250.) Hearsay statement is admissible to show that respondent’s witness believed he was interpreting contract article in accordance with the agreement and consistent with union’s interpretation, though it cannot be admitted to prove that union agreed with his interpretation. The ALJ’s finding that respondent did not grant grievance remedy in retaliation for charging party’s protected activity was not solely based on hearsay testimony, but also on respondent’s witness’s direct testimony, therefore the ALJ’s ruling complied with PERB Regulation 32176.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

A party who wishes to challenge a Board agent’s proposed decision may file exceptions pursuant to PERB Regulation 32300. While the form that the exceptions take may vary—a party may file a statement of exceptions, a brief or both—the content of those exceptions is clearly delineated. Thus, we do not agree with respondent that charging party was required to file a supporting brief along with her statement of exceptions, since the regulation, by its very terms, allows the filing of either a statement or a brief or both. Charging party’s exceptions do not comply with PERB Regulation 32300, since they invariably fail adequately to identify the page or part of the decision to which the exception was taken.