Housing Authority of the City of Los Angeles (PERB 2166M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DARRELL
J.
MOORE, SR.,
Charging Party,
V.
HOUSING AUTHORITY OF THE CITY OF
LOS ANGELES,
Respondent.
Case No. LA-CE-572-M
PERB Decision No. 2166-M
February 25, 2011
Appearance: Darrell
J.
Moore, Sr., on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Darreli
J.
Moore, Sr. (Moore)
of
a Board agent's dismissal
of
his unfair practice charge. 	The charge alleged that the Housing Authority
of
the City
of
Los Angeles (HACLA) violated the Meyers-Milias-Brown Act (MMBA) 1 by refusing
to
allow
Moore to return to his position at HACLA following a medical leave. 	The Board agent
dismissed the charge based in part on timeliness, and on Moore's failure to state a
prima
facie
case that HACLA retaliated against him or interfered with his right to union representation.
The Board has reviewed the dismissal and the record in light
of
Moore's appeal and the
relevant law. Based on this review, the Board affirms the dismissal
of
the charge for
the
reasons discussed below.
1 The MMBA is codified at Government Code section 3500 et seq.

FACTUAL BACKGROUND
In 2002, Moore was hired as an Eligibility Interviewer by HACLA and he worked as a
"casual employee" (temporary employee) from 2002 to 2004. In early 2004, Moore was laid
off, but shortly thereafter he was rehired to the same position.
On or around March 2005, Moore contends that he became ill due to stress in the
workplace. He requested leave from work and was instructed to file worker's compensation
forms prior to taking leave. 	While on leave, Moore was treated by a HACLA doctor who
determined that Moore had a "non-industrial" injury and discharged him with instructions to
obtain private treatment. Moore received private medical treatment and appears to have been
cleared to return to work in or around early 2006. Before HACLA would permit him to return
to work, Moore was required to see its in-house doctor once again. It appears that Moore did
not see the HACLA doctor. Moore asserts that HACLA refused to allow him to return to work
even though he was "finally released as permanent and stable in May
of
2006 to return to
work."
On or around September 2005, Moore applied for unemployment benefits and HACLA
appealed the decision to award Moore benefits, contending that Moore was still considered an
employee
of
HACLA.
Moore contends that in "late 2009" he contacted the union for assistance, however it
was "to no avail, because HACLA claimed that Moore was not entitled to Union representation
because he was a temporary employee." On November 2, 2009, Moore filed the instant unfair
practice charge with PERB, alleging retaliation and interference.
2

DISCUSSION
Jurisdiction
Moore contends that HACLA retaliated against him by refusing to allow his return to
work following a medical leave. PERB is prohibited 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. (Coachella Valley Mosquito and Vector Control District
v.
Public
Employment Relations Board (2005)
35
Cal.4th 1072.) A charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision
No. 1197-S.) 2 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.) Moore filed the instant unfair practice charge on
November 2, 2009, which means that his statutory window extended back to May
1,
2009. 	In
his amended charge, },1oore contends that he was medically released to return to
v.rork
in
or
around May 2006, but HACLA did not allow him to do so. Accordingly, in or around
May
2006, Moore knew or should have known that HACLA was not allowing him to return to work
and the limitations period began to run at that time. 	Moore did not file the instant charge until
nearly three years later. Therefore, Moore's retaliation charge is untimely and this allegation is
dismissed.
Additionally, Moore alleges that HACLA violated a variety
of
state and federal
statutory schemes including the Fair Employment and Housing Act (FEHA), Title VII
of
the
Civil Rights 	of 1964 (Title VII), the 	With Disabilities 	(ADA),
	Age
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
3

Discrimination in Employment Act, worker's compensation laws and whistle blower protection
laws. Moore also alleges that HACLA violated his rights under both the United States
and
the
California Constitutions. PERB has previously found that it lacks jurisdiction over each
of
these claims. (State
of
California (Department
of
Personnel Administration) (2009)
PERB
Decision No. 2085-S [California Constitution]; Alvord Educator's Association (Bussman)
(2009) PERB Decision No. 2046 [ADA, U.S. Constitution, whistleblower protection laws];
San Mateo County Community College District (2008) PERB Decision No. 1980 [Title VII];
Trustees
of
the California State University (2005) PERB Decision No. 1741-H [FEHA];
California State Employees Association (Carrillo) (1997) Perb Decision No. 1199-S [age
discrimination]; State
of
California (Franchise Tax Board) (1992) PERB Decision No.
954-S
[worker's compensation laws].) Therefore, PERB lacks jurisdiction to address these
issues
in
Moore's unfair practice charge.
Interference
Moore contends that in "late 2009," HACLA prevented him from receiving
union
representation because HACLA asserted that Moore was not a permanent employee
and
therefore not a member
of
the bargaining unit represented by the union. The test for
whether
a
respondent has interfered with the rights
of
employees under the MMBA does not
require
that
unlawful motive be established, only that at least slight harm to employee rights results from
the conduct. The courts have described the standard as follows:
All [a charging party) must prove to establish an interference
violation
of
section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise
of
those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
(Public Employees Association
of
Tulare County, Inc.
v.
Board
of
Supervisors
of
Tulare
County (1985) 167 Cal.App.3d 797, 807.)
4

In essence, Moore argues that HACLA denied him access to union representation
because the agency does not include temporary employees in the bargaining unit. Further,
there are no facts indicating that, in his capacity as an employee
of
HACLA, Moore requested
union assistance to enable him to return to work and that HACLA was aware
of
his request.
Therefore, Moore has not established a prima facie case
of
interference and this allegation is
also dismissed.
ORDER
The unfair practice charge in Case No. LA-CE-572-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.