Regents of the University of California (Davis) (PERB 1590H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (DA VIS),
Respondent.
Case No. SA-CE-195-H
PERB Decision No.
	1590-H
January
	26,
	2004
Appearances: Rothner, Segall & Greenstone
by
Bernhard Rohrbacher, Attorney, for American
Federation
of
State, County & Municipal Employees; Barbara Aguirre, Labor Relations
Advocate, for Regents
of
the University
of
California (Davis).
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the American Federation
of
State, County and Municipal
Employees (AFSCME)
of
a Board agent's dismissal
of
their unfair practice charge.
	The
charge alleged that the Regents
of
the University
of
California (Davis) (University) violated
the Higher Education Employer-Employee Relations Act (HEERA)1
by retaliating against
employees for their protected activities by laying them off. AFSCME alleged that this conduct
constituted a violation
of
HEERA section 3571.
Upon review
of
the entire record, including the unfair practice charge, amended charge,
the Board agent's warning and dismissal letters, AFSCME's appeal, the University's
opposition to AFSCME's appeal, and the Board's recent decision in Regents
of
the University
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

2
of
California (2004) PERB Decision No. 1585-H (Sarka), the Board reverses the Board agent's
dismissal and remands the charge to the General Counsel's office for issuance
of
a complaint.
BACKGROUND
In May 2001, the University
of
California Davis Medical Center Blood Gas Lab (lab)
became short-staffed because two employees had quit. By memo dated May 2, 2001, the lab
management offered bonus shifts to employees willing to work beyond their scheduled shifts.
Most lab employees pitched in. In July 2001, lab management contacted AFSCME regarding
non-payment
of
several lab employees for extra shifts worked. On August 7, 2001, lab
employees sent a letter to management asking why the employees were not receiving bonus
shift pay.
On September
7,
2001, AFSCME met with management. Management, including
assistant director
of
nursing Eula Wiley (Wiley), stated that it would only pay for one extra
shift. The other extra shifts would not be reimbursed because the bonus had been rescinded by
"word
of
mouth." So far, only one employee received the extra shift pay for one extra shift.
At this meeting, employees also expressed concern with the number
of
extra shifts worked per
week. 	Wiley responded that extra shifts were worked by choice and that employees could
refuse extra shifts without repercussions. On September 17, 2001, lab employees wrote to
management that they did not wish to work extra shifts until management agreed to
pay
the
extra shift pay pursuant to the May 2 memo and continue such pay until the lab was fully
staffed. Lab employees again met with management in February 2002 and on March 8, 2002.
During the March 8 meeting, Carol Robinson, director
of
nursing, promised to respond to the
employees' concerns but, to date, has not responded.
On April 5, 2002, management met with AFSCME. At this meeting, AFSCME alleges
that management stated that it took the staffs concerns seriously and could see no other
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alternative but to allow only licensed personnel to work in the lab. The four employees
involved in the meetings were unlicensed technicians and thus would be laid off. At this
meeting, management stated that it would consider other options. Wiley and Bill Volz (Volz),
the lab manager, also stated that its proposed action was a direct response to the employees'
complaints regarding scheduling and management's inability to fill shifts because of the
employees' collective action not to work extra shifts. At another meeting on April 12, Wiley
informed the employees that its action was due to employees' complaints about schedules and
had the employees not filed the grievances, the University would not have been forced to
layoff the employees. Within a week, management posted the positions in the local
newspaper.2 On May 10, the employees met again with management to explore other options.
Part of the discussion involved the experience of the employees, and the ability of some of the
employees to obtain licenses in the near future. 	The parties also discussed that management
had previously allowed a male co-worker several years to obtain a license without losing his
job. However, on June 21, 2002, the four employees received a notice of layoffs effective
July 21, 2002.
In July 2002, the night shift of the lab merged with the respiratory therapy unit.
According to AFSCME, scheduling problems have worsened, not improved. Many respiratory
therapists have not reported to the lab for work. Two employees have worked 18-plus hour
shifts to cover scheduling shortages. The respiratory therapists are inexperienced in lab work.
Nurses and doctors have complained about lab work errors. 	On July 31, 2002, AFSCME filed
a grievance representing three of the laid-off lab employees. At the meeting, Wiley stated that
"if Deena (the AFSCME representative) had done her job she wouldn't have told you to refuse
to work extra shifts, then we wouldn't have done this." On October 15, 2002, management
2The advertisement posting job notices for the lab was attached to the charge and is
actually dated April 21, 2002.
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4
proposed critical shift pay for respiratory therapists but according to AFSCME, this has not
corrected the scheduling problems.
AFSCME thus alleges in its charge that management laid
off
the four employees in
retaliation for protected conduct
as
a result
of
the employees' concerted action to not work
extra shifts and as evidenced by management comments made on April
5,
May 10, and July 31,
2002. AFSCME filed its charge on October 21, 2002, and the amended charge, on
December 18, 2002.
BOARD AGENT'S DISMISSAL
The Board agent dismissed the charge on the basis
of
untimeliness. Citing the test in
Gavilan Joint Community College District (1996) PERB Decision No. 1177, the Board agent
explained that the limitations period begins when the charging party knows, or should have
known,
of
the conduct underlying the charge. In this case, the Board agent found that
AFSCME knew after the April 5 meeting that the lab would only employ licensed technicians
so that the four employees in question would be laid off. The employees' knowledge was
confirmed by the April 12 meeting and the posting
of
the positions in the newspaper soon after.
The burden is on AFSCME to prove that the charge is timely. 	(Tehachapi Unified School
District (1993) PERB Decision No. 1024; State
of
California (Department oflnsurance) (1997)
PERB Decision No. 1197-S.) The Board agent found that AFSCME did not meet this burden.
AFSCME cited NLRB v. Rapid Bindery, Inc. (2nd Cir. 1961) 293 F. 2d 170 [38 LRRM
2658] (Rapid Bindery) and State
of
California (Department of Developmental Services) (1985)
PERB Order No. Ad-145-S (Developmental Services) to support its argument that the statute
of limitations does not begin until employees received their layoff notices. The Board agent
disagreed and distinguished Rapid Bindery from the instant case. In Rapid Bindery, there was
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rumor that the employer was moving to a new location. However, unlike this case, the court
found that the employer did not give the union actual notice.
The Board agent also distinguished Developmental Services. Developmental Services
involved an employee opposing deferral
of
his case to arbitration because
of
futility. 	The State
argued against futility because the facts at issue occurred more than six months before the
charge was filed. 	The Board found that the State's argument was based upon a
misunderstanding
of
the statute
of
limitations. Only the event constituting the unfair practice
must occur within the six-month period, not facts supporting or opposing deferral to
arbitration. The Board agent found that Developmental Services also does not support
AFSCME's argument since the event triggering the unfair practice, the notice
of
layoff to
AFSCME and to the affected employees, occurred more than six months before the filing
of
the charge; and therefore, the charge was untimely.
DISCUSSION
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." 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.) The statute oflimitations is an affirmative defense
which has been raised by the University in this case. (Long Beach Community College
District (2003) PERB Decision No. 1564.) Therefore, AFSCME now bears the burden
of
demonstrating that the charge is timely filed. 	(Cf. Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
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On appeal, AFSCME argues that the statute should have begun when the University
issued the written notice
oflayoff
to the four unlicensed employees on June 21, or
alternatively, on April 22, the day after the job announcements for licensed employees was
posted in the local newspaper for lab employees. In either event, the October
21
charge would
be timely filed. 	On the other hand, the University argues that the charge was untimely because
the affected employees were provided with firm notice
of
layoffs at the April 5 meeting, or
alternatively, no later than the April
12
meeting with the lab employees, and that, as
of
those
dates, the University had not wavered in its intent to use only licensed employees in the lab.
Recently, in Sarka, the Board adopted a new rule regarding the commencement
of
the
statute oflimitations in discrimination cases. That rule is based upon the California Supreme
Court's decision in Romanov. Rockwell International, Inc. (1996) 14 Cal. 4 th 479 [59 Cal.
Rptr. 2d 20] (Romano) and holds that the date
of
actual termination, not the notice
of
termination, triggers the statute oflimitations under the Fair Employment and Housing Act
(Gov. Code sec. 12900 et seq.). In Sarka, the Board explained that this rule provides a simpler
way
of
determining the onset
of
the limitations period over trying to determine when the
employer has decisively shown its intent to take the action. The Board in Sarka concluded that
the Romano rule better suits allegations
of
discrimination or retaliation. 3
In this case, the unlicensed employees' layoff date was July 21, 2002, less than six
months before the charge was filed on October 21. Consequently, we find AFSCME's charge
to be timely filed.
We next address whether AFSCME has stated a prima facie violation
of
discrimination
under HEERA and find that AFSCME has done so. To demonstrate a violation ofHEERA
3The Board in Sarka distinguished between adverse action and the threat to take adverse
action because of the charging party's protected activity. The Board noted that both the action
itself and the threat to take the action are the basis for separate violations of HEERA. 	Under
Board precedent, the latter violation is still triggered by the threat itself. (Sarka, at pp. 7-8.)
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section 3571(a), AFSCME must show that: 	(1) the employees exercised rights under HEERA;
(2) the University had knowledge
of
the exercise
of
those rights; and (3) the University
imposed or threatened to impose reprisals, discriminated or threatened to discriminate,
or
otherwise interfered with, restrained or coerced the employees because
of
the exercise
of
those
rights. 	(Novato Unified School District (1982) PERB Decision No.
21
0; Carlsbad Unified
School District (1979) PERB Decision No. 89.)
The charge alleged protected conduct. In the charge, AFSCME alleged that because
of
staffing shortages, the University posted a memo requesting that lab employees work extra
shifts for premium pay. The four unlicensed employees worked multiple additional shifts but
only one employee received additional pay for only one extra shift. As a result, on
September 17, 2001, the lab employees wrote a letter to management stating that they no
longer wished to work extra shifts unless they received the promised additional pay.
	The
employees and their union representative met with management on several occasions to discuss
this issue. The September 17 letter and the employees' and AFSCME representative's
meetings with management are clearly protected under HEERA; management obviously had
knowledge
of
the employees' and AFSCME's conduct. (See Los Angeles Unified School
District (1999) PERB Decision No. 1338, ALJ's proposed dee. at pp. 6-7.) Management took
adverse action by laying
off
the affected employees on July 21, 2002.
According to AFSCME, Wiley and Volz stated at the April 5, 12 and July 31, 2002
meetings that because
of
the employees' complaints, management saw no other option but
to
lay off the unlicensed employees and utilize only licensed staff in the lab. Management's
alleged statements constitute direct evidence of unlawful intent, that the University would not
have laid off the unlicensed lab employees but for their protected conduct. Where there is
direct evidence of unlawful intent, it is unnecessary for the Board to determine the existence, or
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lack thereof,
of
circumstantial evidence. (See Berkeley Unified School District (2003) PERB
Decision No. 1538,
p.
4, citing, San Marcos Unified School District (2003) PERB Decision
No. 1508,
p.
45,
fn.
26.)
In light
of
the above allegations, we conclude that AFSCME has stated a prima facie
case
of
discrimination. The Board therefore reverses the Board agent's dismissal and remands
the unfair practice charge to the General Counsel's office for issuance
of
a complaint.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SA-CE-195-H and
REMANDS the case to General Counsel's office for issuance
of
a complaint.
Members Baker and Neima joined in this Decision.
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