Decision 2567E – Hartnell Community College District

SF-CE-2984-E

Decision Date: June 12, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 2

Decision Headnotes

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

The Board found it unnecessary to consider most of Charging Party’s exceptions, as they concerned issues that were not material to the outcome of his case. Although the Board’s review of exceptions to a proposed decision is de novo, it need not address arguments that have already been adequately addressed in the same case or that would not affect the result. (pp. 3-4.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

The Board found it unnecessary to consider most of Charging Party’s exceptions, as they concerned issues that were not material to the outcome of his case. Although the Board’s review of exceptions to a proposed decision is de novo, it need not address arguments that have already been adequately addressed in the same case or that would not affect the result. (pp. 3-4.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

The Board found it unnecessary to consider most of Charging Party’s exceptions, as they concerned issues that were not material to the outcome of his case. Although the Board’s review of exceptions to a proposed decision is de novo, it need not address arguments that have already been adequately addressed in the same case or that would not affect the result. (pp. 3-4.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.)

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.01000 – In General

Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.)

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.)

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

Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.03000 – Investigatory Interviews

Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.)

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

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.05000 – Precedential Authority of PERB Decisions

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.)

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

The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.)

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

The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

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

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

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

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.)

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

Absent any clear statement of the issues or the grounds for an exception or, at least some explanation of each exception’s significance within the overall context of the case, the Board declined to consider several of Charging Party’s exceptions for failure to comply with the requirements of PERB Regulation 32300. (p. 13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

Absent any clear statement of the issues or the grounds for an exception or, at least some explanation of each exception’s significance within the overall context of the case, the Board declined to consider several of Charging Party’s exceptions for failure to comply with the requirements of PERB Regulation 32300. (p. 13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Absent any clear statement of the issues or the grounds for an exception or, at least some explanation of each exception’s significance within the overall context of the case, the Board declined to consider several of Charging Party’s exceptions for failure to comply with the requirements of PERB Regulation 32300. (p. 13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Absent any clear statement of the issues or the grounds for an exception or, at least some explanation of each exception’s significance within the overall context of the case, the Board declined to consider several of Charging Party’s exceptions for failure to comply with the requirements of PERB Regulation 32300. (p. 13.)