Regents of the University of California (University of California Davis Medical Center) (PERB 2314H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FREDERICK C. KING,
Charging Party, 	Case No. SA-CE-296-H
PERB Decision No. 2314-H
REGENTS OF THE UNIVERSITY OF 	March 21, 2013
CALIFORNIA (UC DAVIS MEDICAL CENTER),
Respondent.
Appearances: Frederick C. King, on his own behalf; Travis J. Lindsey, Employee & Labor
Relations Manager, for Regents of the University of California (UC Davis Medical Center).
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Frederick C. King (King) from the dismissal of his unfair practice charge.
The charge, as amended, alleges that the Regents of the University of California (UC Davis
Medical Center) (University) violated the Higher Education Employer-Employee Relations Act
(HEERA)' by changing King's work schedule in retaliation for having engaged in protected
activity. The PERB Office of the General Counsel dismissed the charge for failure to state a
prima facie case. King filed a timely appeal. The University filed a timely statement in
opposition to the appeal.
The Board has reviewed the record in its entirety and given full consideration to the issues
raised on appeal. Based on the Board's review, we reverse the dismissal for the reasons discussed
below and remand the case to the Office of the General Counsel for issuance of a complaint based
on the alleged retaliatory conduct of the University.
HEERA is codified at Government Code section 3560 et seq. All further statutory
references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FREDERICK C. KING,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (UC DAVIS MEDICAL CENTER),
Respondent.
Case No. SA-CE-296-H
PERB Decision No. 2314-H
March 21, 2013
Appearances: Frederick C. King, on his own behalf; Travis
J.
Lindsey, Employee & Labor
Relations Manager, for Regents
of
the University
of
California (UC Davis Medical Center).
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Frederick C. King (King) from the dismissal
of
his unfair practice charge.
The charge, as amended, alleges that the Regents
of
the University
of
California (UC Davis
Medical Center) (University) violated the Higher Education Employer-Employee Relations Act
(HEERA) 1 by changing King's work schedule in retaliation for having engaged in protected
activity. The PERB Office
of
the General Counsel dismissed the charge for failure to state a
prima facie case. King filed a timely appeal. The University filed a timely statement in.
opposition to the appeal.
The Board has reviewed the record in its entirety and given full consideration to the issues
raised on appeal. Based on the Board's review, we reverse the dismissal for the reasons discussed
below and remand the case to the Office of the General Counsel for issuance of a complaint based
on the alleged retaliatory conduct of the University.
1 HEERA is codified at Government Code section 3560 et seq. All further statutory
references are to the Government Code.

SUMMARY OF FACTUAL ALLEGATIONS
King is a radiologic technologist employed by the University in a bargaining unit whose
exclusive representative is American Federation of State, County and Municipal Employees
Local 3299. King's supervisor is Darcie Abrams (Abrams). David DelPizzo (DelPizzo) is the
manager of Imaging Services.
Since September 7, 2006, King had worked the same weekly swing shift schedule:
Tuesday through Friday, 2:00 p.m. through 12:30 a.m., with Saturday, Sunday and Monday off.
On August 3, 2011, Abrams sent the following e-mail to King and his fellow swing shift
workers':
Subject: 	Voluntary shift change
Hi everyone,
During our last Supervisor meeting, it was brought to my attention
that the Monday swing shift is struggling because they are short
staffed. We are unable to hire someone at this time, so we are
asking someone to volunteer a shift change. The only criteria [sic]
is that you work Monday from 1400-0030. You can pick any day
off during the week with Saturday and Sunday off. Please talk this
over with your family and let me know by August 19". I know we
all enjoy the schedule we have but if we can help to provide better
patient care then lets [sic] do it.. [sic] Thank you.
Darcie Abrams
is summary is derived from the initial and amended unfair practice charge. In
determining whether a charging party has stated a prima facie case, the Board must credit
charging party's factual allegations over those of the other parties. (Golden Plains Unified School
District (2002) PERB Decision No. 1489.) Additional facts provided by a respondent made
under penalty of perjury, as provided for in PERB Regulation 32620, subdivision (c), and not
contradicted by the charging party may be considered by PERB in determining whether a charge
should be dismissed. (King In-Home Supportive Services Public Authority (2009) PERB Decision
No. 2009-M; Service Employees International Union #790 (Adza) (2004) PERB Decision No.
1632-M.) In this case, however, the University chose not to submit a position statement during
the charge processing and investigation stage of the proceedings. (PERB Regs. can be found at
Cal. Code Regs., tit. 8, $ 31001 et seq.)
"The e-mail was addressed to King, Jeffrey Trester, Martin Do and Liberty Prestoza.
DelPizzo was copied on the e-mail.
2
SUMMARY OF FACTUAL ALLEGATIONS2
King is a radiologic technologist employed by the University in a bargaining unit whose
exclusive representative is American Federation
of
State, County and Municipal Employees
Local 3299. King's supervisor
is
Darcie Abrams (Abrams). David DelPizzo (DelPizzo) is the
manager
of
Imaging Services.
Since September
7,
2006, King had worked the same weekly swing shift schedule:
Tuesday through Friday, 2:00 p.m. through 12:30 a.m., with Saturday, Sunday and Monday off.
On August 3, 2011, Abrams sent the following e-mail to King and his fellow swing shift
workers3 :
Subject: 	Voluntary shift change
Hi everyone,
During our last Supervisor meeting, it was brought to my attention
that the Monday swing shift
is
struggling because they are short
staffed. We are unable to hire someone at this time, so we are
asking someone to volunteer a shift change. The only criteria [sic]
is that you work Monday from 1400-0030. You can pick any day
off during the week with Saturday and Sunday off. Please talk this
over with your family and let me know by August
19 th . I know we
all enjoy the schedule we have but
if
we can help to provide better
patient care then lets [sic] do it.. [sic] Thank you.
Darcie Abrams
ThThis summary is derived from the initial and amended unfair practice charge. In
determining whether a charging party has stated a prima facie case, the Board must credit
charging party's factual allegations over those of the other parties. (Golden Plains Unified School
District (2002) PERB Decision No. 1489.) 	Additional facts provided by a respondent made
under penalty
of
perjury, as provided for in PERB Regulation 32620, subdivision (c), and not
contradicted by the charging party may be considered by PERB in determining whether a charge
should be dismissed. (King In-Home Supportive Services Public Authority (2009) PERB Decision
No. 2009-M; Service Employees International Union #790 (Adza) (2004) PERB Decision No.
1632-M.) In this case, however, the University chose not to submit a position statement during
the charge processing and investigation stage of the proceedings. (PERB Regs. can be found at
Cal. Code Regs., tit. 8, § 31001 et seq.)
3 The e-mail was addressed to King, Jeffrey Trester, Martin Do and Liberty Prestoza.
DelPizzo was copied on the e-mail.
2

No one on King's swing shift volunteered for the schedule change. On an unspecified date
after Abrams sent the e-mail, Abrams approached King to inform him that, given his lack of
seniority, he had been selected for the shift change. King responded that he would "go to the
union to fight the shift change."
According to the amended charge, on March 1, 2012, Abrams approached King to inform
him that he "was being forced to start working a split shift." By "split shift," King is referring to
a shift in which the three days off are interrupted by a work day." King was told his new swing
shift schedule would be Monday, Wednesday, Thursday and Friday with Tuesday, Saturday and
Sunday off. King told Abrams that having to work a split shift was unfair. Abrams agreed.
e adopt King's meaning of split shift in this decision.
Following King's March 1 encounter with Abrams, King sent his union representative,
Puneet Kanur (Kanur), the following e-mail:
Hello Puneet Kanur,
I'm Frederick King, and I work at UC Davis medical center in
Sacramento, as an X-ray tech. I've worked here in radiology since
September 7, 2006, on swing shift, tuesday through friday, from
2:00pm, till [sic] 12:30 am.
My boss tells me that I am going to be forced to change my work
days. New schedule will be Monday, take off tuesday, work
wednesday through friday, Saturday and sunday off.
My boss says they can do this because of shift seniority. I do have the
lowest seniority on swing shift, but not in the department.
I do not want to do this. The contract I signed when I was hired was
not for working a split-shift.
Radiology employs per diem persons, and there are many other
workers with less seniority than me.
Can I be forced to take this shift change?
Thank you,
Fred
33
No one on King's swing shift volunteered for the schedule change. On an unspecified date
after Abrams sent the e-mail, Abrams approached King to inform him that, given his lack
of
seniority, he had been selected for the shift change. King responded that he would "go to the
union to fight the shift change."
According to the amended charge, on March
1,
2012, Abrams approached King to inform
him that he "was being forced to start working a split shift." By "split shift," King is referring to
a shift in which the three days
off
are interrupted by a work day. 4 King was told his new swing
shift schedule would be Monday, Wednesday, Thursday and Friday with Tuesday, Saturday and
Sunday off. 5 King told Abrams that having to work a split shift was unfair. Abrams agreed.
W	We adopt King's meaning
of
split shift in this decision.
5 Following King's March 1 encounter with Abrams, King sent his union representative,
Puneet Kanur (Kanur), the following e-mail:
Hello Puneet Kanur,
I'm
Frederick King, and I work at UC Davis medical center in
Sacramento, as an X-ray tech. I've worked here in radiology since
September 7, 2006, on swing shift, tuesday through friday, from
2:00pm, till (sic] 12:30 am.
My boss tells me that I am going to be forced to change my work
days. New schedule will be Monday, take off tuesday, work
wednesday through friday, Saturday and sunday off.
My boss says they can do this because
of
shift seniority. I do have the
lowest seniority on swing shift, but not in the department.
I do not want to do this. The contract I signed when I was hired was
not for working a split-shift.
Radiology employs per diem persons, and there are many other
workers with less seniority than me.
Can I be forced to take this shift change?
Thank you,
Fred

On March 6, 2012, DelPizzo approached King to inform him that the 30-day countdown
toward the schedule change had started." King alleges that DelPizzo "behaved very aggressively,
as if to physically intimidate me, getting very close, only inches from my face." King responded
that he needed his days off "in one piece in order to recooperate [sic] from a physically difficult
work week." According to King, DelPizzo told him that he was lucky to have a job. King
interpreted DelPizzo's statement as a threat against his continued employment.
On March 29, 2012, King, his union representative Kanur, DelPizzo and two human
resources representatives met to discuss the schedule change. King reiterated that he needed his
three days off in a row. DelPizzo replied that the change was inconvenient, but that King had to
do it. After the meeting, King talked to Kanur who agreed to speak to management about
allowing King to work Monday through Thursday, so that his days off would not be interrupted
by a work day. King never heard back from the union.' On April 16, 2012, King began working
"Article 12 of the parties' agreement states: "In the event the University decides to
abolish, establish or change work schedules in work areas, the University shall inform AFSCME
at least thirty (30) calendar days prior to taking such action."
7By e-mail to Kanur dated April 5, 2012, King stated:
hello Puneet,
Have you said anything to management regarding changing the shift
to monday through thursday, instead of the split week?
Maybe we should talk again. I heard last night that we have two per
diem workers that have been working full time for over six months,
and are going to have to be hired full time , as per contract. It would
seem to me that this might be used to help keep me from having to
work a split week.
Also, do I have the option to bump a less senior person, to avoid this
bad shift change?
Thank you,
fred
44
On
March 6, 2012, DelPizzo approached King to inform him that the 30-day countdown
toward the schedule change had started. 6 King alleges that DelPizzo "behaved very aggressively,
as
if
to physically intimidate me, getting very close, only inches from my face." King responded
that he needed his days
off
"in one piece in order to recooperate [sic] from a physically difficult
work week." According to King, DelPizzo told him that he was lucky to have a job. King
interpreted DelPizzo
's
statement as a threat against his continued employment.
On March 29, 2012, King, his union representative Kanur, DelPizzo and two
human
resources representatives met to discuss the schedule change. King reiterated that he needed his
three days
off
in a row. DelPizzo replied that the change was inconvenient, but that King had to
do it. After the meeting, King talked to Kanur who agreed to speak to management about
allowing King to work Monday through Thursday, so that his days
off
would not be interrupted
by a work day. King never heard back from the union. 7 On April 16, 2012, King began working
6 Article 12
of
the parties' agreement states: "In the event the University decides to
abolish, establish or change work schedules in work areas, the University shall inform AFSCME
at least thirty (30) calendar days prior to taking such action."
7 By e-mail to Kanur dated April 5, 2012, King stated:
hello Puneet,
Have you said anything to management regarding changing the shift
to monday through thursday, instead
of
the split week?
Maybe we should talk again. I heard last night that we have two per
diem workers that have been working full time for over six months,
and are going to have to be hired full time, as per contract. It would
seem to me that this might be used to help keep me from having to
work a split week.
Also, do I have the option to bump a less senior person, to avoid this
bad shift change?
Thank you,
fred

his new schedule. As of the filing of the charge, King was the only employee in diagnostic
radiology who was working 10- to 12-hour shifts without having three days off in a row.
King filed the initial charge on October 15, 2012. After receiving a warning letter
pointing out the deficiencies of the charge allegations, King filed an amended charge on
December 18, 2012. The amended charge clarified that the retaliatory act was in being forced to
work a schedule in which he no longer would be permitted to take his three days off in a row or,
as he (King) calls it, a split shift.
THE DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office of the General Counsel determined that the charge allegations satisfied three of
the elements of a prima facie case of retaliation. Regarding the element of protected activity, the
Office of the General Counsel determined that "[sometime prior to March 1, 2012, King
informed [the University] that he would go to the union and fight his shift change. Therefore,
King engaged in protected activity by threatening to seek out union representation to address his
concern." Regarding the element of employer knowledge, the Office of the General Counsel
determined that "sometime prior to March 1, 2012, [King] told Abrams that he would go to the
union and fight the shift change. Therefore, [King] has established that [ the University] had
knowledge of his protected activity." Regarding the element of adverse action, the Office of the
General Counsel determined that reassigning King to a split shift constitutes adverse action for
purposes of reprisal.
Regarding the fourth element, the Office of the General Counsel determined that the
requisite nexus between the protected activity and the adverse action had not been satisfied
because the adverse action pre-dated the protected activity. The Office of the General Counsel
reasoned that King's statement to Abrams that he would go to the union to fight the schedule
change occurred after the act of reassignment.
55
his new schedule. As
of
the filing
of
the charge, King was the only employee in diagnostic
radiology who was working 10- to 12-hour shifts without having three days
off
in a row.
King filed the initial charge on October 15, 2012. After receiving a warning letter
pointing out the deficiencies
of
the charge allegations, King filed an amended charge on
December 18, 2012. The amended charge clarified that the retaliatory act was in being forced to
work a schedule in which he no longer would be permitted to take his three days off in a row or,
as he (King) calls it, a split shift.
THE DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office
of
the General Counsel determined that the charge allegations satisfied three
of
the elements
of
a prima facie case
of
retaliation. Regarding the element
of
protected activity, the
Office
of
the General Counsel determined that "[s]ometime prior to March
1,
2012, King
informed [the University] that he would go to the union and fight his shift change. Therefore,
King engaged in protected activity by threatening to seek out union representation to address his
concern." Regarding the element
of
employer knowledge, the Office
of
the General Counsel
determined that "sometime prior to March
1,
2012, [King] told Abrams that he would go to the
union and fight the shift change. Therefore, [King] has established that [the University] had
knowledge
of
his protected activity." Regarding the element
of
adverse action, the Office
of
the
General Counsel determined that reassigning King to a split shift constitutes adverse action for
purposes
of
reprisal.
Regarding the fourth element, the Office of the General Counsel determined that the
requisite nexus between the protected activity and the adverse action had not been satisfied
because the adverse action pre-dated the protected activity. The Office of the General Counsel
reasoned that King's statement to Abrams that he would go to the union to fight the schedule
change occurred after the act of reassignment.

KING'S APPEAL AND THE UNIVERSITY'S OPPOSITION
King contends on appeal that the Office of the General Counsel erred in determining that
the adverse action pre-dated the protected activity. As King's argument goes, Abrams first
approached King only to inform him that he was going to be required to work Mondays, not that
he would no longer have the option of choosing his third non-weekend day off. It was not until
March 1, 2012, that Abrams informed King that he would be required to work a split shift.
King's protected activity occurred at the earlier date when Abrams first informed him that he had
been selected for the schedule change. Therefore, according to King, his protected activity pre-
dated the adverse action.
The University makes three arguments in its opposition to the appeal. It contends that
King has failed to state a prima facie case for the reason stated in the dismissal, i.e., King was
informed of the shift change prior to threatening to seek union representation. The University did
not address the specific nexus issue raised by King on appeal that the adverse action is not the
imposition of the Monday swing shift, which he was apprised of by Abrams when she first
approached him, but rather, the imposition of a split shift, which he was apprised of by Abrams
when she approached him on March 1, 2012. The University also contends that the charge is
untimely because King knew or should have known of the underlying conduct no later than
March 1, 2012, when he contacted his union representative for assistance. Finally, the University
contends that PERB should not consider new allegations raised by King for the first time on
appeal.
DISCUSSION
New Allegations on Appeal
On appeal, King presents new allegations that were not presented in the initial or amended
charge. "Unless good cause is shown, a charging party may not present on appeal new charge
66
KING'S APPEAL AND THE UNIVERSITY'S OPPOSITION
King contends on appeal that the Office
of
the General Counsel erred in determining that
the adverse action pre-dated the protected activity. As King's argument goes, Abrams first
approached King only to inform him that he was going to be required to work Mondays, not that
he would no longer have the option
of
choosing his third non-weekend day off.	
It
was not until
March
1,
2012, that Abrams informed King that he would be required to work a split shift.
King's protected activity occurred at the earlier date when Abrams first informed him that he had
been selected for the schedule change. Therefore, according to King, his protected activity pre-
dated the adverse action.
The University makes three arguments in its opposition to the appeal.	
It
contends that
King has failed to state a prima facie case for the reason stated in the dismissal, i.e., King was
informed
of
the shift change prior to threatening to seek union representation. The University did
not address the specific nexus issue raised by King on appeal that the adverse action is not the
imposition
of
the Monday swing shift, which he was apprised
of
by Abrams when she first
approached him, but rather, the imposition
of
a split shift, which he was apprised
of
by Abrams
when she approached him on March
1,
2012. The University also contends that the charge is
untimely because King knew or should have known
of
the underlying conduct no later than
March 1, 2012, when he contacted his union representative for assistance. Finally, the University
contends that PERB should not consider new allegations raised by King for the first time on
appeal.
DISCUSSION
New Allegations on Appeal
On appeal, King presents new allegations that were not presented in the initial or amended
charge. "Unless good cause is shown, a charging party may not present on appeal new charge

allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU Employees Union,
SEIU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.) The Board has found good cause
when "the information provided could not have been obtained through reasonable diligence prior
to the Board agent's dismissal of the charge." (Sacramento City Teachers Association (Ferreira)
(2002) PERB Decision No. 1503.)
The new allegations concern the assignment of employees from the weekend shift with
less seniority than King to the Tuesday swing shift. King states that this occurred three weeks
prior to being informed he would have to give up the Tuesday swing shift for the Monday shift.
For purposes of reviewing the dismissal of King's charge, the Board declines to consider these
new allegations. The date of the event concerning the reassignment of weekend shift employees
alleged for the first time on appeal predates the dismissal of the charge, and the appeal provides
no reason why these allegations could not have been provided in the initial or amended charge.
Thus, the Board does not find good cause to consider these new allegations on review of the
dismissal.
Timeliness of the Charge
PERB Regulation 32620, subdivision (b)(5), requires dismissal of a charge or any part
thereof if it is determined that the charge is based upon conduct occurring more than six months
prior to the filing of the charge. The statute of limitations is an element of the charging party's
prima facie case. (Long Beach Community College District (2009) PERB Decision No. 2002.) A
charging party bears the burden of demonstrating that the charge is timely filed. (County of
Sonoma (2012) PERB Decision No. 2242-M.) The limitations period begins to run once the
charging party knows, or should have known, of the conduct underlying the charge. (Gavilan
Joint Community College District (1996) PERB Decision No. 1177.)
7
allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU Employees Union,
SEIU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.) The Board has found good cause
when "the information provided could not have been obtained through reasonable diligence prior
to the Board agent's dismissal
of
the charge." (Sacramento City Teachers Association (Ferreira)
(2002) PERB Decision No. 1503.)
The new allegations concern the assignment
of
employees from the weekend shift with
less seniority than King to the Tuesday swing shift. King states that this occurred three weeks
prior to being informed he would have to give up the Tuesday swing shift for the Monday shift.
For purposes
of
reviewing the dismissal
of
King's charge, the Board declines to consider these
new allegations. The date
of
the event concerning the reassignment
of
weekend shift employees
alleged for the first time on appeal predates the dismissal
of
the charge, and the appeal provides
no reason why these allegations could not have been provided in the initial or amended charge.
Thus, the Board does not find good cause to consider these new allegations on review
of
the
dismissal.
Timeliness
of
the Charge
PERB Regulation 32620, subdivision (b)(5), requires dismissal
of
a charge or any part
thereof
if
it is determined that the charge is based upon conduct occurring more than six months
prior to the filing
of
the charge. The statute
of
limitations is an element
of
the charging party's
prima facie case. (Long Beach Community College District (2009) PERB Decision No. 2002.) A
charging party bears the burden
of
demonstrating that the charge is timely filed. 	(County
of
Sonoma (2012) PERB Decision No. 2242-M.) The limitations period begins to run once the
charging party knows, or should have known, of the conduct underlying the charge. (Gavilan
Joint Community College District (1996) PERB Decision No. 1177.)
7

The statute of limitations for new allegations contained in an amended charge begins to
run based upon the filing date of the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to the
initial charge only when it clarifies facts originally alleged in the initial charge or adds a new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
King's new split shift began on April 16, 2012. He filed his unfair practice charge on
October 15, 2012, just within the six-month limitations period. Therefore, King's initial charge is
timely. The new allegations in the amended charge filed on December 18, 2012, clarify facts
originally alleged in the initial charge. Thus, the new allegations relate back to the original
allegations in the initial charge. The amended charge is also timely.
The University contends that the statute of limitations began to run on March 1, 2012,
when King contacted his union for assistance. Although DelPizzo began the 30-day countdown
on March 6, 2012, the split shift was not imposed until April 16, 2012. In the meantime, there
was a meeting with DelPizzo, a union representative and human resources representatives on
March 29, 2012. There was further e-mail correspondence with his union representative on
April 5, 2012. Until the split shift was actually imposed on April 16, 2012, King continued to
press for further consideration of his circumstances. Given that imposition of the split shift could
have been further delayed, or possibly obviated by an alternate resolution of the issue, the date of
imposition serves as the logical date to begin the running of the limitations period. (See, e.g.,
Regents of the University of California (2004) PERB Decision No. 1585-H [in cases involving
allegations that an employee was terminated from employment in retaliation for having engaged
in protected activities, the statute of limitations begins to run on the date of actual termination,
8
The statute
of
limitations for new allegations contained in an amended charge begins to
run based upon the filing date
of
the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to the
initial charge only when it clarifies facts originally alleged in the initial charge or adds a
new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
King's new split shift began on April 16, 2012. He filed his unfair practice charge
on
October 15, 2012, just within the six-month limitations period. Therefore, King's initial charge is
timely. The new allegations in the amended charge filed on December 18, 2012, clarify facts
originally alleged in the initial charge. Thus, the new allegations relate back to the original
allegations in the initial charge. The amended charge is also timely.
The University contends that the statute
of
limitations began to run on March
1,
2012,
when King contacted his union for assistance. Although DelPizzo began the 30-day countdown
on March 6, 2012, the split shift was not imposed until April 16, 2012. In the meantime, there
was a meeting with DelPizzo, a union representative and human resources representatives on
March 29, 2012. There was further e-mail correspondence with his union representative on
April 5, 2012. Until the split shift was actually imposed on April 16, 2012, King continued to
press for further consideration
of
his circumstances. Given that imposition
of
the split shift could
have been further delayed, or possibly obviated by an alternate resolution
of
the issue, the date
of
imposition serves as the logical date to begin the running
of
the limitations period. (See, e.g.,
Regents
of
the University
of
California (2004) PERB Decision No. 1585-H [in cases involving
allegations that an employee was terminated from employment in retaliation for having engaged
in protected activities, the statute of limitations begins to run on the date of actual termination,
8

rather than the date of notification of the intent to terminate].) The Office of the General Counsel
did not find King's charge to be untimely. We agree.
The Prima Facie Case
To establish a prima facie case that an employer discriminated or retaliated against an
employee in violation of section 3571, subdivision (a), the charging party must show that:
(1) the employee exercised rights guaranteed by HEERA; (2) the employer had knowledge of the
employee's exercise of those rights; (3) the employer took an adverse action against the
employee; and (4) the employer took the adverse action because of the employee's exercise
of guaranteed rights. (Santa Clara County Counsel Attorneys Assn. v. Woodside (1994)
7 Cal.4 555-556; Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
We agree with the Office of the General Counsel that the first three elements of the prima
facie case are met. We briefly summarize that analysis here. Abrams first approached King after
the August 3, 2011, e-mail requesting a volunteer for the schedule change to inform him that he
had been chosen for the change. King responded that he would "go to the union to fight the shift
change." Seeking the assistance of the exclusive representative in connection with a workplace
issue is protected activity. (County of Riverside (2011) PERB Decision No. 2184-M.) Even had
King not consummated his threat, communicating his intention to seek union representation in
exercise of his guaranteed rights is sufficient to establish protected activity. (See, e.g.,
Los Angeles Unified School District (Thomas) (2005) PERB Decision No. 1787 [adopting the
proposed decision of the administrative law judge, the Board found that the charging party
Section 3571, subdivision (a) provides in pertinent part:
It shall be unlawful for the higher education employer to do any of
the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees
because of their exercise of rights guaranteed by this chapter.
rather than the date
of
notification
of
the intent to terminate].) The Office
of
the General Counsel
did not find King's charge to be untimely. 	We agree.
The Prima Facie Case
9
To establish a prima facie case that an employer discriminated or retaliated against an
employee in violation
of
section 3571, subdivision (a),8 the charging party must show that:
(1) the employee exercised rights guaranteed by HEERA; (2) the employer had knowledge
of
the
employee's exercise
of
those rights; (3) the employer took an adverse action against the
employee; and ( 4) the employer took the adverse action because
of
the employee's exercise
of
guaranteed rights. (Santa Clara County Counsel Attorneys Assn.
v.
Woodside (1994)
7 Cal.4
th
555-556; Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
We agree with the Office
of
the General Counsel that the first three elements
of
the prima
facie case are met. We briefly summarize that analysis here. Abrams first approached King after
the August 3, 2011, e-mail requesting a volunteer for the schedule change to inform him that he
had been chosen for the change. King responded that he would "go to the union to fight the shift
change." Seeking the assistance
of
the exclusive representative in connection with a workplace
issue
is
protected activity. (County
of
Riverside (2011) PERB Decision No. 2184-M.) Even had
King not consummated his threat, communicating his intention to seek union representation in
exercise
of
his guaranteed rights is sufficient to establish protected activity. (See, e.g.,
Los Angeles Unified School District (Thomas) (2005) PERB Decision No. 1787 [adopting the
proposed decision of the administrative law judge, the Board found that the charging party
8 Section 3571, subdivision (a) provides in pertinent part:
It shall be unlawful for the higher education employer to do any of
the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees
because of their exercise ofrights guaranteed by this chapter.

engaged in protected activity when she told management that she intended to speak with her
union about filing a grievance].) In addition, the element of employer knowledge is met because
King told Abrams he would go the union to fight the charge. And, in satisfaction of the third
element, the University took adverse action against King by requiring him to work a split shift.
(Regents of the University of California (1984) PERB Decision No. 403-H [changing an
individual's work schedule constitutes adverse action].)
The issue presented in this case is whether the element of nexus is met. "Unlawful motive
is the specific nexus required in the establishment of a prima facie case." (Trustees of the
California State University v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1107,
1 124.) Establishing an unlawful motive is essential to a charging party's retaliation case. In the
absence of direct evidence of unlawful motivation, unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole. (Ibid.)
To guide its examination of circumstantial evidence of unlawful motive, PERB has
developed a set of "nexus" factors that may be used to establish a prima facie case. Although the
timing of the employer's adverse action in close temporal proximity to the employee's protected
activity is an important factor (North Sacramento School District (1982) PERB Decision No. 264
(North Sacramento)), it does not, without more, demonstrate the necessary nexus between the
adverse action and the protected activity. (Moreland Elementary School District (1982) PERB
Decision No. 227 (Moreland).)
The premise of a retaliation case is that an employer has taken adverse action against an
employee because of the employee's exercise of rights guaranteed under the applicable labor
relations statutory scheme. Temporally, the protected activity must precede the adverse action.
The Office of the General Counsel determined that the protected conduct did not precede the
adverse action and, on that basis, concluded that there was no nexus between the two events.
10
engaged in protected activity when she told management that she intended to speak with her
union about filing a grievance].) In addition, the element
of
employer knowledge is met because
King told Abrams he would go the union to fight the charge. And, in satisfaction
of
the third
element, the University took adverse action against King by requiring him to work a split shift.
(Regents
of
the University
of
California (1984) PERB Decision No. 403-H [changing an
individual's work schedule constitutes adverse action].)
The issue presented in this case is whether the element
of
nexus is met. "Unlawful motive
is the specific nexus required in the establishment
of
a prima facie case." (Trustees
of
the
California State University
v.
Public Employment Relations Bd. (1992) 6 Cal.App.4
th
1107,
1124.) Establishing an unlawful motive is essential to a charging party's retaliation case. 	In the
absence
of
direct evidence
of
unlawful motivation, unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole. (Ibid.)
To guide its examination
of
circumstantial evidence
of
unlawful motive, PERB has
developed a set
of
"nexus" factors that may be used to establish a prima facie case. Although the
timing
of
the employer's adverse action in close temporal proximity to the employee's protected
activity is an important factor (North Sacramento School District (1982) PERB Decision No. 264
(North Sacramento)), it does not, without more, demonstrate the necessary nexus between the
adverse action and the protected activity. (Moreland Elementary School District (1982) PERB
Decision No. 227 (Moreland).)
The premise of a retaliation case is that an employer has taken adverse action against an
employee because o/the employee's exercise ofrights guaranteed under the applicable labor
relations statutory scheme. Temporally, the protected activity must precede the adverse action.
The Office of the General Counsel determined that the protected conduct did not precede the
adverse action and, on that basis, concluded that there was no nexus between the two events.

(See County of San Bernardino (County Library) (2009) PERB Decision No. 2071-M [timing not
established where the alleged adverse action predates the employee's protected activity].) We
would agree with that analysis if the adverse action ultimately imposed on King were the same as
the adverse action originally contemplated. In other words, if the adverse action had not changed
from notification to imposition, we would conclude that King's protected activity could not be the
basis for inferring unlawful motive even though it preceded imposition. (See, e.g., Alameda
County Medical Center (2004) PERB Decision No. 1707-M [timing not met where employee was
consistently reprimanded for her tardiness prior to engaging in protected activity]; Riverside
Unified School District (1987) PERB Decision No. 639 [protected activity, after decision to take
adverse action, cannot be basis for inferring unlawful motive].)
Where there has been a substantial change in the adverse action, as here, the temporal
relationship between the relevant events changes. (See, e.g., Los Angeles Unified School District
(1985) PERB Decision No. 550 [no nexus because alleged harassment began prior to protected
activity and had not "appreciably changed in kind or increased in intensity" thereafter].) In such
an instance, the protected activity will be found to have preceded the adverse action, thus
establishing the correct temporal relationship for retaliation purposes. In the e-mail of August 3,
2011, King and his fellow Tuesday swing shift employees were told that the only criterion for the
schedule change was that the selected employee would have to work the Monday swing shift.
There were no restrictions on choosing a third day off in addition to Saturday and Sunday.
Therefore, in order to maintain the swing shift practice of having three days off in a row, the
selected employee could work Monday through Thursday under the schedule change as originally
articulated in the e-mail. When Abrams first approached King to inform him that he had been
selected, he responded by telling her he would go to the union to fight the change. When King
was subsequently approached by Abrams on March 1, 2012, however, he no longer had the option
11	11
(See County
of
San Bernardino (County Library) (2009) PERB Decision No. 2071-M [timing not
established where the alleged adverse action predates the employee's protected activity].) We
would agree with that analysis
if
the adverse action ultimately imposed on King were the same as
the adverse action originally contemplated. In other words,
if
the adverse action had not changed
from notification to imposition, we would conclude that King's protected activity could not be the
basis for inferring unlawful motive even though it preceded imposition. 	(See, e.g., Alameda
County Medical Center (2004) PERB Decision No. 1707-M [timing not met where employee was
consistently reprimanded for her tardiness prior to engaging in protected activity]; Riverside
Unified School District (1987) PERB Decision No. 639 [protected activity, after decision to take
adverse action, cannot be basis for inferring unlawful motive].)
Where there has been a substantial change in the adverse action, as here, the temporal
relationship between the relevant events changes. (See, e.g., Los Angeles Unified School District
(1985) PERB Decision No. 550 [no nexus because alleged harassment began prior to protected
activity and had not "appreciably changed in kind or increased in intensity" thereafter].) In such
an instance, the protected activity will be found to have preceded the adverse action, thus
establishing the correct temporal relationship for retaliation purposes. In the e-mail
of
August 3,
2011, King and his fellow Tuesday swing shift employees were told that the only criterion for the
schedule change was that the selected employee would have to work the Monday swing shift.
There were no restrictions on choosing a third day off in addition to Saturday and Sunday.
Therefore, in order to maintain the swing shift practice
of
having three days off in a row, the
selected employee could work Monday through Thursday under the schedule change as originally
articulated in the e-mail. When Abrams first approached King to inform him that he had been
selected, he responded by telling her he would go to the union to fight the change. When King
was subsequently approached by Abrams on March 1, 2012, however, he no longer had the option

of choosing his third day off. He was informed that he would have to work a split shift, with his
days off being Tuesday, Saturday and Sunday. Thus, given the factual allegations presented in
the charge, we conclude that King's protected activity occurred prior to the adverse action of
being required to work a split shift.
Turning to the nexus factors, we now examine the temporal proximity of the protected
activity to the adverse action. The proximity in time between the protected activity and the
adverse action goes to the strength of the inference of unlawful motive, but is not determinative
by itself. (California Teachers Association, Solano Community College Chapter, CTA/NEA
(2010) PERB Decision No. 2096.) Where a charge fails to allege when the employee engaged in
the protected activity, PERB is unable to measure temporal proximity for purposes of determining
whether there is a sufficient nexus between the protected activity and the adverse action. (County
of San Diego (2012) PERB Decision No. 2258-M.)
Here, King does not allege the date when Abrams first approached him to inform him that
he had been selected for the change in schedule. That is when King alleges that he engaged in the
protected activity of telling Abrams that he would go to the union to fight the change. We do
know, however, that it occurred sometime between the e-mail of August 3, 2011, and the
subsequent time Abrams approached King on March 1, 2012, to inform him that he was going to
be required to work a split shift. The Board has found a six-month lapse in time to not constitute
temporal proximity sufficient to support an inference of unlawful motive in Los Angeles Unified
School District (1998) PERB Decision No. 1300. In another case, however, North Sacramento,
supra, PERB Decision No. 264, PERB found an inference of unlawful motive where a teacher
who had no reprimands in five years suddenly received repeated reprimands within a six-month
period after filing a grievance over a negative evaluation. Thus, there is no "bright line" rule for
determining how close in time the protected activity must be to the retaliatory conduct. We
12	12
of
choosing his third day off. He was informed that he would have to work a split shift, with his
days off being Tuesday, Saturday and Sunday. Thus, given the factual allegations presented in
the charge, we conclude that King's protected activity occurred prior to the adverse action
of
being required to work a split shift.
Turning to the nexus factors, we now examine the temporal proximity
of
the protected
activity to the adverse action. The proximity in time between the protected activity and the
adverse action goes to the strength
of
the inference
of
unlawful motive, but is not determinative
by itself. (California Teachers Association, Solano Community College Chapter, CTAINEA
(2010) PERB Decision No. 2096.) Where a charge fails to allege when the employee engaged in
the protected activity, PERB is unable to measure temporal proximity for purposes
of
determining
whether there is a sufficient nexus between the protected activity and the adverse action. 	(County
of
San Diego (2012) PERB Decision No. 2258-M.)
Here, King does not allege the date when Abrams first approached him to inform him that
he had been selected for the change in schedule. That is when King alleges that he engaged in the
protected activity
of
telling Abrams that he would go to the union to fight the change. We do
know, however, that it occurred sometime between the e-mail
of
August 3, 2011, and the
subsequent time Abrams approached King on March
1,
2012, to inform him that he was going to
be required to work a split shift. The Board has found a six-month lapse in time to not constitute
temporal proximity sufficient to support an inference
of
unlawful motive in Los Angeles Unified
School District (1998) PERB Decision No. 1300. In another case, however, North Sacramento,
supra, PERB Decision No. 264, PERB found an inference of unlawful motive where a teacher
who had no reprimands in five years suddenly received repeated reprimands within a six-month
period after filing a grievance over a negative evaluation. Thus, there is no "bright line" rule for
determining how close in time the protected activity must be to the retaliatory conduct. We

conclude that there is only an arguably minimally sufficient temporal proximity between King's
protected activity and Abrams' notification on March 1, 2012, that he would be required to work a
split shift. Because temporal proximity goes to the strength of the unlawful motive, based on
temporal proximity alone, the inference of unlawful motive, although present, is weak.
As stated above, timing alone is not determinative of unlawful motive. Although the
timing of the employer's adverse action in close temporal proximity to the employee's protected
activity is an important factor (North Sacramento, supra, PERB Decision No. 264), it does not,
without more, demonstrate the necessary nexus between the adverse action and the protected
conduct. (Moreland, supra, PERB Decision No. 227.) Facts establishing one or more of the
following additional factors must also be present: (1) the employer's disparate treatment of the
employee (State of California (Department of Transportation) (1984) PERB Decision No. 459-$);
(2) the employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation of the employee's misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland Unified
School District (2003) PERB Decision No. 1529)" or the offering of exaggerated, vague, or
ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786);
(6) employer animosity towards union activists (Jurupa Community Services District (2007)
PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision
ut see Sacramento City Unified School District (2010) PERB Decision No. 2129 (an
employer's failure to give an "at will" employee a reason for dismissal does not indicate unlawful
motive by itself in the absence of evidence that the employer was required by policy or past
practice to do so).
13	13
conclude that there is only an arguably minimally sufficient temporal proximity between
King's
protected activity and Abrams' notification on March
1,
2012, that he would be required
to work a
split shift. Because temporal proximity goes to the strength
of
the unlawful motive, based
on
temporal proximity alone, the inference
of
unlawful motive, although present, is weak.
As stated above, timing alone is not determinative
of
unlawful motive. Although
the
timing
of
the employer's adverse action in close temporal proximity to the employee's protected
activity is an important factor (North Sacramento, supra, PERB Decision No. 264), it does not,
without more, demonstrate the necessary nexus between the adverse action and the protected
conduct. (Moreland, supra, PERB Decision No. 227.) Facts establishing one or more
of
the
following additional factors must also be present: ( 1) the employer's disparate treatment
of
the
employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S);
(2) the employer's departure from established procedures and standards when dealing
with
the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action ( Oakland Unified
School District (2003) PERB Decision No. 1529)9 or the offering
of
exaggerated, vague,
or
ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786);
(6) employer animosity towards union activists (Jurupa Community Services District (2007)
PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision
B But see Sacramento City Unified School District (2010) PERB Decision No. 2129 (an
employer's failure to give an "at will" employee a reason for dismissal does not indicate unlawful
motive by itself in the absence
of
evidence that the employer was required by policy or past
practice to do so).

No. 572); or (7) any other facts that might demonstrate the employer's unlawful motive
(North Sacramento, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210).
Accepting King's allegations as true for purposes of evaluating the prima facie case
(Golden Plains Unified School District (2002) PERB Decision No. 1489), we conclude that King
has alleged the existence of several nexus factors sufficient to support an inference of unlawful
motive. King is the only employee in diagnostic radiology who works 10- to 12-hour shifts
without having three days off in a row. This allegation shows disparate treatment. (University of
California (1984) PERB Decision No. 403-H [changing the longstanding work schedules of only
two employees, including one who participated in an unfair practice hearing, out of a workforce
of 20 employees constitutes unlawful disparate treatment].) The adverse action as originally
contemplated would have allowed King to take three days off in a row, as he had done since
September 6, 2006. The adverse action ultimately imposed did not allow King that option, and
instead required him to work a split shift. This allegation shows an implied inconsistency in the
University's justification for its actions.
Thus, the allegations of the charge are sufficient to support an inference of unlawful
motive. We therefore conclude that King has set forth allegations sufficient to state a prima facie
case of retaliation under HEERA. At a formal hearing, King bears the burden of proving the
complaint by a preponderance of the evidence. (PERB Reg. 32178.) Under the burden-shifting
framework in retaliation cases, once a prima facie case is established, the employer bears the
burden of proving it would have taken the adverse action even in the absence of the protected
activity. (Novato, supra, PERB Decision No. 210; Martori Brothers Distributors v. Agricultural
Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB 1083, 1089.)
Thus, "the question becomes whether the [adverse action] would not have occurred 'but for' the
14	14
No. 572); or (7) any other facts that might demonstrate the employer's unlawful motive
(North Sacramento, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210).
Accepting King's allegations as true for purposes
of
evaluating the prima facie case
(Golden Plains Unified School District (2002) PERB Decision No. 1489), we conclude that King
has alleged the existence
of
several nexus factors sufficient to support an inference
of
unlawful
motive. King is the only employee in diagnostic radiology who works 10- to 12-hour shifts
without having three days off in a row. This allegation shows disparate treatment. ( University
of
California (1984) PERB Decision No. 403-H [changing the longstanding work schedules
of
only
two employees, including one who participated in an unfair practice hearing, out
of
a workforce
of
20 employees constitutes unlawful disparate treatment].) The adverse action as originally
contemplated would have allowed King to take three days off in a row, as he had done since
September 6, 2006. The adverse action ultimately imposed did not allow King that option, and
instead required him to work a split shift. This allegation shows an implied inconsistency in the
University's justification for its actions.
Thus, the allegations
of
the charge are sufficient to support an inference
of
unlawful
motive. We therefore conclude that King has set forth allegations sufficient to state a prima facie
case
of
retaliation under HEERA. At a formal hearing, King bears the burden
of
proving the
complaint by a preponderance
of
the evidence. (PERB Reg. 32178.) Under the burden-shifting
framework in retaliation cases, once a prima facie case is established, the employer bears the
burden of proving it would have taken the adverse action even in the absence of the protected
activity. (Novato, supra, PERB Decision No. 210; Martori Brothers Distributors
v.
Agricultural
Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB 1083, 1089.)
Thus, "the question becomes whether the [adverse action] would not have occurred 'but for' the

protected activity." (Martori Brothers Distributors v. Agricultural Labor Relations Bad., supra,
29 Cal.3d at p. 729.) The "but for" test is "an affirmative defense which the employer must
establish by a preponderance of the evidence." (McPherson v. Public Employment Relations Bd.
(1987) 189 Cal.App.3d 293, 304.) The University will have every opportunity at the formal
hearing to present an affirmative defense.
ORDER
The Board REVERSES the dismissal of the unfair practice charge in Case
No. SA-CE-296-H and REMANDS this case to the Office of the General Counsel for issuance
of a complaint consistent with this Decision.
Members Winslow and Banks joined in this Decision.
15	15
protected activity." (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra,
29 Cal.3d at p. 729.) The "but for" test is "an affirmative defense which the employer must
establish by a preponderance of the evidence." (McPherson v. Public Employment Relations Bd.
(1987) 189 Cal.App.3d 293, 304.) The University will have every opportunity at the formal
hearing to present an affirmative defense.
ORDER
The Board REVERSES the dismissal of the unfair practice charge in Case
No. SA-CE-296-H and REMANDS this case to the Office of the General Counsel for issuance
of a complaint consistent with this Decision.
Members Winslow and Banks joined in this Decision.