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.

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Decision Headnotes

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.)

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
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.

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
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.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
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.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
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.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
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.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.)