Decision 2757M – City and County of San Francisco
SF-CE-1683-M
Decision Date: March 3, 2021
Decision Type: PERB Decision
Description: Respondent excepted to the proposed decision finding no good cause to excuse a four month late filed answer, concluding Respondent waived its right to a hearing, deeming all allegations in the complaint and underlying unfair practice charge to be true, and issuing a proposed remedial order requiring Respondent to return Charging Party to his prior position and make him whole for any financial losses.
Disposition: The Board affirmed the proposed decision and issued a modified remedial order. The Board affirmed the remedial order related to the notice posting, and the cease and desist order. The Board affirmed the make whole order but modified it to include any monetary damages due to Charging Party’s placement on administrative leave.
Perc Vol: 45
Perc Index: 84
Decision Headnotes
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities
PERB has ordered that even when a retaliatory transfer was effectuated in accordance with existing procedures, that fact does not foreclose an order requiring the respondent to offer charging party reinstatement to the former position, or a substantially similar position. (pp. 15-16.)
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.)
1103.05000 – Answer or Other Defense/Waiver
A finding of good cause to excuse a late filing pursuant to PERB Regulation 32136 does not depend on whether the responsible person was an attorney but whether the late filing was occasioned by circumstances that were either unanticipated or beyond the person’s control, whether the responsible person provided a reasonable and credible explanation for their failure to comply, or made a conscientious effort to comply with the filing deadline. (p. 11.) Even where no prejudice to the other party is apparent, PERB must determine whether good cause exists. Respondent counsel’s busy caseload and PERB’s simultaneous issuance of three complaints and eight dismissals in related cases did not establish good cause to excuse a four month delay in filing an answer. (p. 10.)
1103.05000 – Answer or Other Defense/Waiver
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.)
1104.03000 – Proposed Decision
The Board held the ALJ properly found the respondent failed to establish good cause to excuse the late filing of its answer and thereby waived its right to a hearing. The Board further held the ALJ properly deemed the allegations in the complaint and underlying unfair practice charge to be true.
1200.01000 – In General
Order to cease and desist reprisal, discrimination, and interference against all employees is not overbroad and burdensome, because PERB commonly uses broad language referring to all employees, even when the unlawful conduct was directed at only one employee. (p. 14.)
1201.02000 – Reinstatement
PERB has ordered that even when a retaliatory transfer was effectuated in accordance with existing procedures that does not foreclose an order requiring the respondent to offer charging party reinstatement to his former position, or a substantially similar position. (pp. 15-16.)
1201.03000 – Back Pay; Interest
The finding of an unfair practice creates a presumption that employees suffered some financial loss as a result of the employer’s unlawful conduct; thus, it is appropriate to give charging party an opportunity to establish in compliance proceedings that he suffered a financial loss due to his placement on administrative leave and his subsequent reassignment. (p. 14.)
1205.03000 – Notices; Posting, Reading, and Mailing
Unless the Board limits the posting requirement, PERB’s traditional remedy for an employer’s unfair practice includes a notice posting requirement on a unit-wide basis. “The purpose of posting a notice incorporating the terms of the order is educational for the represented employees. It is to notify employees of the conduct that was found to be unlawful, assure all employees affected by the decision of their rights and PERB’s conclusions, and inform employees that the controversy is now resolved and the employer is ready to comply with the remedy ordered.” [Citation.] The posting requirement also serves the purpose of “prevent[ing] the recurrence of the prohibited conduct on a unit-wide basis.” [Citation.] (p. 13.)
1402.07000 – Failure to Timely Raise Affirmative Defense
Failure to file an answer constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing, and precludes the assertion of affirmative defenses. (PERB Regulation 32644, subdivision (c); Regents of the University of California (2018) PERB Decision No. 2601-H, p. 14.) Thus, a respondent’s failure to establish good cause to excuse a late answer may result in a default judgment. (pp. 8, 15, fn. 5.)
1503.02000 – Regulations Considered (By Number)
A finding of good cause to excuse a late filing pursuant to PERB Regulation 32136 does not depend on whether the responsible person was an attorney but whether the late filing was occasioned by circumstances that were either unanticipated or beyond the person’s control, whether the responsible person provided a reasonable and credible explanation for their failure to comply, or made a conscientious effort to comply with the filing deadline. (p. 11.) Even where no prejudice to the other party is apparent, PERB must determine whether good cause exists. Respondent counsel’s busy caseload and PERB’s simultaneous issuance of three complaints and eight dismissals in related cases did not establish good cause to excuse a four month delay in filing an answer. (p. 10.)
1503.02000 – Regulations Considered (By Number)
The absence of a paragraph in the complaint explicitly alleging that charging party was reassigned because of protected activity was a minor error that could be disregarded in accordance with PERB Regulation 32645 when the respondent’s motion to dismiss the complaint shows it understood the complaint to include such an allegation. (p. 12.)