Regents of the University of California (California State Employees Association) (PERB 0403H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION, 	CHAPTER 41,
Charging 	Party,
v.
REGENTS 	OF 	THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-145-H
PERB Decision No. 	403-H
September 6, 	1984
Appearances; 	Ernest Haberkern 	for 	California 	State 	Employees'
Association; 	Edward M. 	Opton, 	Jr. 	for The Regents of the
University of 	California.
Before Tovar, 	Jaeger and Morgenstern, 	Members.
DECISION
TOVAR, 	Member: 	This 	case 	is before 	the 	Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	appeal 	filed by the
California State Employees' 	Association, 	Chapter 41 	(CSEA,
Association or 	Charging Party) 	of 	a 	regional 	attorney's 	partial
refusal 	to 	issue 	a 	complaint 	and partial 	dismissal 	of 	an unfair
practice 	charge 	(pursuant 	to 	PERB regulation 	section 	32630) 	for
failure 	to 	state 	a prima 	facie 	violation of 	the Higher
Education 	Employer-Employee 	Relations 	Act 	(HEERA).1
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	statutory references 	are 	to the Government 	Code
unless 	otherwise 	specified.
PERB 	rules 	and 	regulations 	are 	codified 	at 	California
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The 	regional 	attorney dismissed 	part 	of 	the 	charge 	on 	the
basis 	that 	the 	Association 	did not 	establish 	the 	necessary
"nexus" 	showing 	that 	the 	employer's 	actions 	were motivated by
Charging 	Party's 	participation 	in protected 	activity, 	but
issued 	a 	complaint 	on 	that 	part 	of 	the 	charge alleging prima
facie 	violation 	of 	Liebman's 	right 	to have 	union 	representation
at 	a meeting 	convened on February 	2, 	1983, 	by an employer
representative.
Upon review of his basis 	for dismissal, 	CSEA's appeal, 	the
University's 	response 	thereto and the 	entire 	record, 	we
conclude 	that 	the 	regional 	attorney 	erred 	in 	refusing 	to 	issue
a 	complaint 	on the dismissed portions of 	the 	charge, 	for 	the
reasons 	discussed below.
FACTUAL 	SUMMARY
On December 	28, 	1982, 	CSEA filed the 	instant 	unfair
practice 	charge 	against 	the 	University of 	California 	(UC or
University) 	alleging 	violation 	of HEERA subsection 	3571(a).2
Administrative Code, 	title 8, 	section 31001 et seq.; 	section
32630 states:
If 	the 	Board agent 	concludes 	that 	the 	charge
or 	the 	evidence 	is 	insufficient 	to 	establish
a prima 	facie case, 	the Board agent 	shall
refuse to 	issue complaint, 	in whole or 	in
part. 	The 	refusal 	shall 	constitute a
dismissal of 	the charge. 	The 	refusal,
including 	a 	statement 	of 	the 	grounds 	for
refusal, 	shall be 	in writing and 	shall be
served 	on 	the 	charging 	party and 	respondent.
2Section 	3571(a) 	makes 	unlawful 	certain conduct by the
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The 	charge alleges 	that, 	within the 	six month period
immediately preceding 	the 	filing 	of 	the 	unfair 	practice 	charge,
Ms. 	Nikki Bailey, 	a 	long-term employee of the Department of
Computing Affairs, 	was 	discharged 	from employment 	in 	reprisal
for 	seeking and obtaining 	representation 	from the Association
and participating 	in PERB Case No. 	SF-CE-78-H.
On April 18, 	1983, 	April 20, 	1983 and May 9, 	1983, 	the
charge 	was 	amended 	to allege 	that 	the 	University had 	similarly
unlawfully discriminated 	against 	employee 	Ellen Liebman 	in
reprisal 	for her 	exercise 	of protected 	activity. 	This
protected 	activity 	consisted 	of 	being 	a 	named plaintiff 	and
witness 	in 	the 	unfair 	practice 	charge 	and hearing 	against 	the
University in PERB Case No. 	SF-CE-78-H.
Ms. 	Liebman's immediate supervisor, 	Margaret Baker, 	took
the 	stand 	to 	counter 	Liebman's 	testimony on 	the 	78-H
proceeding. 	CSEA alleges 	that 	Peter 	Rauch, 	another one of
Liebman's 	supervisors, 	also participated 	in the hearing.
higher 	education employer. 	It 	states:
It 	shall be unlawful 	for 	the higher
education 	employer 	to:
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.
W	
3

Post-hearing briefs 	in 	that 	case 	were 	completed 	on
January 24, 	1983.3
In the 	instant 	case, 	Charging Party alleges 	the
University's 	unlawful 	conduct 	to consist of 	(1) 	changing
Ms. 	Liebman's work schedule; 	(2) denying Ms. 	Liebman the right
to have 	a 	union 	representative 	present 	during a 	meeting with 	a
supervisor; 	(3) 	sending Ms. 	Liebman a letter of warning
threatening 	dismissal 	on 	the 	grounds 	that 	she 	refused both 	to
attend 	the 	meeting without her 	union 	representative 	and 	to
distribute evaluation 	forms 	to her 	students; 	and 	(4) 	sending
her 	a 	letter 	of warning threatening dismissal 	if 	she 	refused 	to
comply with her 	recently 	revised 	work 	schedule.
Several weeks prior to January 12, 	1983, 	Liebman and a
fellow employee, 	Paul 	Chase, 	had made a request to their
supervisors, 	Baker and Rauch, 	for a reclassification and 	job
audit. 	Liebman had asked 	Rauch 	to meet 	with Kevin McCurdy, 	her
union representative, 	to discuss 	the 	reclassification. 	This
request 	was 	denied.
On January 12, 	1983, 	Liebman and Chase 	submitted a request
to Baker 	for 	job audit 	forms 	as 	part 	of 	a University-established
appeal procedure.
On January 13, 	1983, 	the work schedule Liebman had worked
since March 1977, 	was changed. 	Paul 	Chase's 	schedule was
A
3The	3 The 	ALJ's proposed decision was 	issued on April 	16, 	1984.
4

likewise 	changed. 	Prior 	to 	this development, 	Liebman and Chase
enjoyed 	a 	schedule 	and duties 	similar 	to 	those 	of 	approximately
20 other programmers 	and assistant programmers; 	but 	only
Liebman 	and 	Chase 	experienced 	a work-schedule 	change.
On February 	2, 	1983, 	Rauch asked to meet 	with Liebman
regarding her 	request 	for 	job audit 	forms. 	Liebman 	refused 	to
attend without 	a 	union representative, 	fearing possible
disciplinary consequences 	of 	such 	a 	meeting.
Subsequently, 	Liebman 	received 	a 	letter of 	warning
threatening her with discipline, 	including dismissal, 	if 	she
continued 	to work her 	old 	schedule.
DISCUSSION
PERB Regulation 	32620 states 	in part 	as 	follows:
(b) 	The powers 	and duties of 	such Board
agent 	shall be 	to:
(5) 	Dismiss 	the 	charge or 	any part
thereof as provided 	in 	section 	32630 	if
it 	is 	determined 	that 	the charge or 	the
evidence 	is 	insufficient 	to establish a
prima 	facie 	case 	. . . .
The Board has 	ruled that, 	in cases where 	it 	is alleged that 	the
employer's 	action 	is 	undertaken as 	a 	reprisal4 against 	an
4Subsection 	3571(a) provides:
It 	shall be unlawful 	for 	the higher
education 	employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
•
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employee because of his/her exercise of a protected right, 	a
prima 	facie 	charge 	will be 	sustained 	if 	the 	Charging 	Party-
establishes 	that 	the 	employer's 	conduct 	was 	motivated by the
employee's 	exercise 	of 	a 	statutory right. 	Novato Unified
School District 	(4/30/82) 	PERB Decision No. 	210; 	Regents of the
University of 	California 	(Lawrence 	Livermore 	National
Laboratory) 	(4/30/82) 	PERB Decision No. 	212-H.
In order 	to sustain a charge of 	reprisal 	in this 	case,
Charging 	Party needs 	to 	state 	the 	protected 	activity
Ms. 	Liebman was 	involved 	in, 	respondent's knowledge of
Ms. 	Liebman's participation 	in such an activity, 	and how her
participation 	in 	that 	protected 	activity was 	a motivating
factor 	in the change 	in her work schedule. 	Novato, 	supra. 	The
regional 	attorney 	concluded 	that 	CSEA 	failed 	to 	establish 	these
essential points.
In 	considering 	an appeal 	of 	dismissal 	of 	an unfair 	practice
charge 	all 	facts 	alleged 	in 	the 	charge 	must be 	deemed 	true.
State 	of 	California 	(Department 	of Transportation) 	(8/18/83)
PERB Decision No. 	333-S.
Contrary to the 	regional attorney's 	finding, 	we 	feel
Charging 	Party has 	demonstrated 	a 	nexus 	sufficient 	to 	establish
a prima 	facie 	case.
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
6

The 	crux 	of 	Ellen 	Liebman's 	protected 	activity was her
participation 	in 	the 	SF-CE-78-H 	case.5 she 	was 	a 	named
plaintiff 	who 	testified 	against 	the 	University. 	Her 	immediate
supervisors 	were 	aware 	of her 	participation 	since 	Baker was 	a
witness 	on behalf of 	the University. 	Although 	the hearing on
that 	case 	concluded on September 	1, 	1982, 	the controversy
continued 	since 	post-hearing briefs 	were 	not 	submitted 	until
January 24, 	1983, 	and a proposed decision not 	issued until
April 16, 	1984.
The 	University's 	subsequent 	interactions 	with Liebman
appear 	to have been 	affected by 	the 	fact 	that 	she brought
charges 	against 	the University 	in 	the 	78-H case.
On June 13, 	1982, 	the day after Liebman submitted to her
supervisor 	a 	request 	for 	job audit 	forms, 	the work 	schedule
which 	Liebman had maintained 	since 	1977 was 	changed. 	Except
for Paul 	Chase, 	other programmers 	did not 	experience 	a 	similar
work 	schedule 	change.6 The 	timing 	of 	the 	employer's 	conduct
5we 	reject 	the 	regional 	attorney's 	conclusion 	that
Charging 	Party may not 	incorporate 	by 	reference 	allegations
made 	in the 	78-H charge. 	We acknowledge 	the 	regional
attorney's 	attempts 	to 	"assist" 	the 	Charging 	Party by
developing 	interrogatories; 	however, 	it was unreasonable 	for
him to have 	demanded 	that 	Charging 	Party 	respond 	to all 	the
questions 	or 	suffer 	dismissal, 	particularly when none 	of 	the
questions 	addressed 	the 	issue 	of 	Baker's 	knowledge 	of 	Liebman's
protected 	activity.
6 the 	charges 	made 	with 	respect 	to 	Paul 	Chase 	are
dismissed 	because 	Charging 	Party 	failed 	to 	establish 	a prima
facie 	case. 	Since he did not participate 	in the 	SF-CE-78-H
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in 	relation 	to 	the 	employee's 	performance 	of protected activity
and 	the 	employer's 	disparate 	treatment 	of 	employees 	engaged 	in
such activity may support 	an 	inference of unlawful 	motive. 	See
Radio Officer Union v. 	NLRB 	(1954) 	347 U.S. 	17 at pp. 	43-44 [33
LRRM 2514]; 	Novato Unified School District, 	supra.
The 	change 	in work 	schedule 	detrimentally affected 	Liebman
because 	she 	no 	longer had 	the 	flexible 	time 	other 	employees had
and which 	she had 	enjoyed 	for 	several 	years.
Liebman's 	participation 	in 	SF-CE-78-H 	is 	clearly a
protected 	activity under 	section 	3565 	of 	the 	Act.7 We,
thus, 	find 	that an 	inference of unlawful motivation 	is 	fairly
raised by the 	facts 	presented here. 	Liebman's 	immediate
supervisors had knowledge 	of her protected 	activity, 	and 	the
case, 	Charging Party has 	not 	raised 	the 	necessary 	inference
that 	the 	change 	in his 	work 	schedule 	was 	in 	retaliation 	for his
having 	participated 	in 	that 	protected 	activity.
7Section 	3565 provides 	that:
Higher 	education 	employees 	shall have 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	employee 	organizations of
their 	own 	choosing 	for 	the purpose 	of
representation on all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of 	meeting 	and 	conferring. 	Higher
education employees 	shall 	also have 	the
right 	to 	refuse 	to 	join 	employee
organizations 	or 	to participate 	in the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security provision
permissible 	under 	this 	chapter.
8

timing 	and disparate 	treatment 	are 	also 	factors 	supporting 	this
inference.
The 	issue 	is 	raised whether 	Liebman had a 	right 	to have
union 	representation 	at 	the 	meeting 	set 	up by Rauch on
February 2, 	1983. 	Relying on Redwoods Community College
District 	(3/15/83) 	PERB Decision No. 	293, 	the regional attorney
found 	that 	Liebman was 	entitled 	to 	such 	representation. 	In
Redwoods, 	the 	Board 	found 	that 	the 	employee was unlawfully
denied 	union 	representation 	at 	a 	meeting 	with management 	where
the 	employee 	was 	to protest her 	immediate 	supervisor's
evaluation.
The 	Board 	concluded 	that 	such 	a meeting 	is 	tantamount 	to an
appeal 	from adverse 	personnel 	action 	and 	is 	distinguishable
from a meeting with evaluators. 	The 	right of 	representation 	in
that 	case 	derived 	from sections 	3540 and 	3543 of 	the
Educational 	Employment 	Relations 	Act 	and 	not 	on Weingarten v.
U.S. 	(1975) 420 U.S. 	251.8
Similarly, 	in the 	instant case, 	Liebman 	is entitled to
representation. 	Everything 	that happened 	to Liebman - 	Rauch's
uncooperativeness 	when 	she 	asked him 	to meet 	with her 	union
representative 	to discuss 	the 	possibility of 	a 	job audit,
Baker's 	unexplained 	refusal 	to provide her 	with 	the 	job audit
8Under 	the Weingarten 	rule 	an employee has 	a 	right 	to
representation 	at 	investigatory 	interviews 	which 	the 	employee
reasonably believes 	could 	result 	in discipline.
99

forms, 	the 	change 	in her 	long-standing 	work 	schedule 	ordered by
Baker 	the 	day after 	she made her 	request 	for 	those 	forms, 	Baker
and 	Rauch's 	continued 	refusal 	to provide 	Liebman with 	standard
forms 	for 	a University-established 	appeal 	procedure 	- 	all
reflect 	unusual 	circumstances 	in 	this 	case 	entitling Liebman 	to
representation 	at 	the 	meeting 	Rauch 	subsequently 	set 	to discuss
her 	request 	for 	forms.
Liebman was 	similarly entitled 	to 	a 	representative 	when 	she
made her 	request 	for 	those 	forms 	since 	a 	job audit 	might 	entail
a 	salary adjustment 	or 	a 	change 	in 	classification 	and 	thus
involves 	matters 	of 	employer-employee 	relations.
The 	right 	to 	representation under 	these 	circumstances
derives 	directly 	from HEERA section 	3565 	and 	subsection
3560(d).9
Finally, 	CSEA maintains 	that 	the 	regional 	attorney did not
provide 	a 	reason 	why 	the 	charge 	was 	dismissed without 	leave 	to
amend pursuant 	to PERB rule 	32630(a), 	or why the 	regional
attorney 	failed 	to 	seek 	particularization of 	the 	charge 	as
required by PERB rule 	32650. 	PERB 	regulations were 	amended 	on
9Subsection 	3560(d) 	states:
The 	people 	and 	the 	aforementioned higher
education 	employers 	each have 	a 	fundamental
interest 	in 	the 	preservation and promotion
of 	the 	responsibilities 	granted 	by 	the
people 	of 	the 	State of 	California.
Harmonious 	relations 	between 	each higher
education 	employer 	and 	its 	employees 	are
necessary to 	that 	endeavor.
10

September 	20, 	1982, 	and there currently is no specific
requirement 	that 	the 	regional 	attorney 	take 	either 	of 	the
actions 	referred 	to by CSEA.
Based 	on 	the 	above, 	the Board concludes 	that 	the
University's 	total 	course 	of 	conduct 	vis-a-vis 	Liebman 	raises
an 	inference 	of 	a pattern 	of 	retaliatory action which began
after her 	participation 	in 	SF-CE-78-H.
We 	also 	affirm 	the 	finding 	of 	a prima 	facie 	violation 	of
her 	right 	to 	representation.
ORDER
Upon 	the 	foregoing Decision and 	the 	record as 	a whole, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that 	the 	regional
attorney's 	Partial 	Refusal 	to 	Issue 	Complaint 	and 	Dismissal
Without 	Leave 	to Amend 	regarding 	Ellen Liebman's 	allegations 	is
reversed. 	The matter 	is 	REMANDED to 	the General 	Counsel 	for
further 	proceedings 	consistent 	with 	this 	Decision.
Member 	Jaeger 	joined 	in 	this 	Decision.
Member 	Morgenstern's 	Concurrence 	and Dissent begins 	on page 	12.
11

Morgenstern, 	Member, 	concurring and dissenting: 	For 	the
reasons set forth below, 	I 	find 	that 	the regional attorney
erred 	in dismissing 	that portion of 	the 	charge 	alleging 	that
the 	University acted 	unlawfully with 	respect 	to Ellen 	Liebman.
Specifically, 	I 	find sufficient facts to support a prima
facie 	allegation 	that 	Liebman's 	longstanding work 	schedule 	was
altered because 	she engaged 	in protected activities. 	As 	a
charging party 	in 	a prior 	unfair 	practice 	charge 	against 	the
University 	(SF-CE-78-H) 	and as a participant 	in that
proceeding, 	Liebman 	undeniably exercised 	her 	EERA 	rights 	and
1engaged in protected activity.1
I 	also dispute 	the regional 	attorney's 	conclusion 	that CSEA
failed 	to 	allege 	that Liebman 	engaged 	in 	protected 	activities
known to her 	supervisor, 	Margaret Baker, 	the individual who
apparently was 	responsible for 	the work 	schedule change. 	It 	is
noteworthy 	that 	the 	regional 	attorney's 	exhaustive 	list of
interrogatories as 	to 	the altered 	schedule does not 	include 	a
question 	about Baker's 	knowledge 	of Liebman's protected
activities. 	In any event, 	on two separate bases, 	I 	find the
1Subsection 	3541.5(a) 	provides 	in pertinent part: 	"Any
employee 	. 	. 	. 	shall have the right to file an unfair practice
charge . . . 	."
And see section 	8(a)(4) 	of 	the National Labor 	Relations Act
which makes 	it unlawful 	"to discharge or 	otherwise 	to
discriminate 	against 	an employee 	because 	he has 	filed 	charges
or 	given 	testimony under 	this Act."
12

regional 	attorney's 	conclusion 	that Baker 	was 	unaware 	of
Liebman's protected 	activities 	to be 	incorrect.
First, 	while there 	is no specific allegation of Baker's
knowledge of Liebman's 	involvement 	in SF-CE-78-H, 	I 	find 	that
this 	knowledge may well be 	imputed 	to Baker 	simply by virtue 	of
the 	fact 	that Liebman was 	a named charging party. 	The 	Board's
past decisions 	clearly permit 	it 	to 	take 	administrative 	notice
of 	such 	facts. 	Antelope Valley Community College District
(7/18/79) 	PERB Decision No. 	97; 	Rio Hondo Community College
District 	(5/19/80) 	PERB Decision No. 	128; 	Mendocino Community
College District 	(11/4/80) 	PERB Decision No. 	144; 	State of
California 	(Department of Transportation) 	(7/7/81) 	PERB
Decision No. 	159b-S; 	John Swett Unified School District
(12/21/81) 	PERB Decision No. 	188. 	Furthermore, merely by
examining 	the transcript 	in SF-CE-78-H, 	it 	is revealed 	that
both 	Liebman and 	Baker were witnesses 	in 	the hearing 	in
SF-CE-78-H. 	From this fact alone, 	I 	would thus charge Baker
with actual 	knowledge 	that 	Liebman had 	exercised her 	right 	to
file 	an unfair 	practice charge 	against 	the University.
The 	troublesome component of 	this 	case concerns 	the
required 	nexus 	between Liebman's 	protected 	activity 	and 	the
altered work 	schedule. 	The 	unfair 	practice 	charge 	in
SF-CE-78-H was filed on August 3, 	1981, 	and the hearing was
conducted 	in July 	1982. 	Since 	the 	alleged work 	schedule 	change
occurred on January 	13, 	1983, 	six months elapsed between the
date 	of hearing 	and 	the 	employer's 	alleged misconduct. 	While 	a
13

reprisal 	need 	not 	take place within a 	specific 	time period
after 	the exercise of protected activity, 	the 	time period here
leaves 	some question as 	to whether 	a connection between 	the
relevant events can 	reasonably be 	inferred. 	Nonetheless,
because such a question exists, 	I 	would not dismiss 	the
allegation. 	Given Baker's 	actual 	knowledge of Liebman's
protected conduct, 	I cannot conclude that, 	as a matter of law,
no nexus can be 	inferred 	from these 	facts.
Apart 	from the 	allegation 	that Liebman's 	work 	schedule 	was
altered 	in 	response 	to her 	participation 	in 	the 	earlier 	unfair
practice charge, 	I 	find a separate prima facie case has been
demonstrated. 	CSEA alleged 	that Liebman and her 	coworker, 	Paul
Chase, 	sought a 	reclassification and 	job audit and 	the 	forms 	to
request 	the 	audit 	from Baker 	in order 	to 	utilize 	the
University's 	established appeal procedure. 	Therein 	I 	find a
claim that 	Liebman and Chase 	engaged 	in 	protected 	activity, 	and
that Baker 	was aware 	that 	the 	two employees had engaged 	in
protected 	activity. 	See 	California 	State 	University,
Sacramento 	(4/30/82) 	PERB Decision No. 	211-H; 	The Regents of
the University of California 	(Berkeley) 	(5/16/83) 	PERB Decision
No. 308-H.
Specifically, 	I 	find in the allegations 	that Liebman
exercised protected 	activity for 	several weeks 	prior 	to
January 13, 	1983, 	when she tried to initiate the
reclassification and 	job audit, 	when 	she 	tried 	to get 	Baker's
supervisor, 	Peter Rauch, 	to meet with her 	union representative,
14

and again on January 12, 	1983, 	when she requested the forms 	to
appeal 	the 	ignored or denied audit 	request. 	When 	I 	consider
the fact that on the following day, 	January 13, 	1983, 	Liebman's
work schedule was changed, 	I 	find ample basis to 	issue a
complaint. 	First, 	I 	find it is protected activity to ask 	the
employer 	to conduct 	a meeting with 	a 	union 	representative
regarding a matter 	of employment relations, 	regardless of
whether 	one 	is 	entitled to have 	a 	union 	representative
present. 	Since Baker was refusing 	to cooperate 	in 	the 	job
audit and 	in arranging 	a meeting with 	Rauch 	to discuss 	this
matter 	with 	the 	assistance 	of Liebman's 	union 	representative,
Baker 	is 	charged with 	knowledge 	that 	Liebman 	sought 	such 	a
meeting with Rauch, 	Baker's 	supervisor. 	I 	find these 	facts
sufficient 	to state 	a prima facie case.
In addition, 	I 	find that Liebman engaged 	in protected
activity when 	she 	asked 	Baker 	for 	the 	forms 	necessary 	to
initiate 	the reclassification and job audit. 	As 	is 	the case
when an employee 	seeks to file 	a grievance under 	the contract,
Liebman's 	attempt 	to utilize 	this 	appeal procedure 	certainly
demonstrates 	protected 	activity.
Finally, 	as 	to Liebman's 	right 	to have a union
representative at 	the meeting with Rauch, 	I 	agree with 	the
regional 	attorney that there 	is very 	little upon which 	to base
a conclusion 	that, 	objectively speaking, 	Liebman feared
disciplinary 	action would 	result 	from 	that meeting. 	However,
as 	the majority notes, 	the 	regional attorney did not base his
15

finding 	on Weingarten but 	on 	the 	statutory 	representation 	right
enunciated by the 	Board 	in 	its decision 	in 	Redwoods. 	Mindful
that 	the 	appellate court 	reviewing 	the Board's 	decision 	in
Redwoods2 would 	extend EERA 	representation 	rights 	"only 	in
highly unusual circumstances," 	the 	allegations made 	in 	the
instant case 	refer 	not 	to a 	routine business conversation but
to communications 	crucial 	to Liebman's 	efforts 	to assess her
job duties. 	Thus, 	I 	find a prima facie allegation on the fact
that, 	when Liebman was called 	to 	the meeting to discuss her
request 	for 	the forms to 	initiate a 	job audit, 	she was
partaking 	in 	the 	appeal procedure and was 	entitled 	to have her
union 	representative 	present.
2Redwoods 	Community College 	District 	v. 	Public Employment
Relations 	Board 	(1984) 	Cal.App.3d 	.
16

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
May 26, 	1983
Ernest Haberkern
California State Employees' Assn.
160 Franklin Street, Suite 302
Oakland, CA 94607
Edward M. Op ton
Office of the General Counsel
590 University Hall
2200 University Avenue
Berkeley, CA 94720
Res 	PARTIAL REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
California State Employees' Association v. Regents of the University of
California, Case No. SF-CE-145-H
Dear Parties:
Pursuant to Public Employment Relations Board 	(PERB) Regulation
section 32620(5), part of the above-referenced charge will not be issued
as a cornp3.aint and it is hereby dismissed because it fails to allege facts
sufficient to state a prima facie violation of the Higher Education Employer-
Employee Relations Act 	(HE3RA)).1 The remaining portions of the charge,
however, will be issued as a complaint. 	The reasoning which underlies this
decision follows.
On December 28, 1982, the California State Employees' Association, Chapter 41
(Association) 	filed an unfair practice charge against the Regents of the
University of California 	(University) 	alleging violation of HEERA
section 	3571(a). 2 The charge alleges that within the six months immediately
1References to the HEERA are to Government Code sections 3560 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.
2Section 3571(a) makes unlawful certain conduct of the higher education
employer. 	It states:
It shall be unlawful for the higher education
employer to:
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.

Edward M. Opton, Jr.
Ernest Haberkern
May 26, 1983
Page 2
preceding the filing of the unfair practice charge, Ms. Nikki Bailey, a long-
term employee of the Department of Computing Affairs, was discharged from
employment in reprisal for seeking and obtaining representation from the
Association and participating in PERB Case No. SF-CE-78-H, the hearing of
which preceded her dismissal by three months. 	On April 1 8 , 1983, April 20,.
1983 and May 9, 1983 the charge was amended to allege that the University had
also unlawfully discriminated against employee Ellen Liebman in reprisal for
her exercise of protected activity. 	More specifically, charging party alleged
the University's unlawful conduct to consist of (1) changing Ms. Liebman's work
schedule; 	(2) denying Ms. Liebman the right to have a union representative
present during a meeting with a supervisor; 	(3) sending M s . Liebman a letter
of warning threatening dismissal on the grounds, first, that she refused to
attend the meeting without her union representative and, second, that she
refused to distribute student evaluation forms to her students; and (4) sending
her a letter of warning threatening dismissal if she refused to comply with her
revised work schedule.
This agency's jurisdiction as to employees at the University of California is
limited to enforcement of certain provisions of 	HEERA.3 The PERB has ruled
that for a charge to state a prima facie case, it must establish a "nexus" or
"connection" between an exercise of a protected right and the employer's
action. 	Novato Unified School District (4/30/82) PERB Decision No. 210;
California State University (Sacramento) 	(4/30/82) PERB Decision No. 211-H;
Regents of the University of California 	(Lawrence Livermore National
Laboratory) 	(4/30/82) PERB Decision No. 212-H. 	Where, as here, anti-union
discrimination or reprisal is alleged, the charging party must allege and
ultimately be able to establish that the employer's conduct would not have
occurred "but for" the employee's exercise of rights. 	Such motivation may be
3Section 	3565 grants employees certain rights. 	It states:
Higher education employees shall have the right to
form, join and participate in the activities of
employee organizations of their own choosing for the
purpose of representation on all matters of employer-
employee relations and for the purpose of meeting
and conferring. 	Higher education employees shall
also have the right to refuse to join employee
organizations or to participate in the activities of
these organizations subject to the organizational
security provision permissible under this chapter.

Edward M. Opton, J r .
Ernest 	Haberkern
May 26, 1983
Page 3
demonstrated 	by circumstantial evidence. 	Novato Unified 	School District,
supra.
Ms. Bailey
Here charging party has alleged that the letter of warning and the performance
evaluation which formed the basis of the University's October 1982 dismissal
of Ms. Bailey were challenged by the Association in SF-CE-78-H as reprisal for
her exercise of protected activity. 	Charging party alleges that PERB's
issuance of a complaint in SF-CE-78-H is explicit recognition that the letter
of warning and performance evaluation constituted a prima facie violation of
Ms. Bailey's HEERA rights. 	It follows that the dismissal from employment also
constitutes a prima facie violation of section 3571(a). 	The complaint will
thus issue as to this allegation.
M s . Liebman
However, charging party has failed to allege, with respect to Ms. Liebman,
that the employer conduct which occurred subsequent to the July 1982 hearing
in SF-CE-78-H was motivated by considerations litigated 	in that case. 	There
is no allegation that the alleged reprisals of the employer against
M s . Liebman involved conduct which was found to constitute a prima facie
violation of section 3571 when the complaint in SF-CE-78-H was issued. 	Nor is
it alleged that the employer representatives responsible for post-July 1982
conduct directed against Ms. Liebman were identical to those individuals
alleged in SF-CE-78-H to have behaved toward her in a discriminatory manner.
Consequently, whether the charge states a prima facie violation of
M s . Liebman's HEERA rights depends on the allegations expressly set forth and
not those additionally incorporated by reference to SF-CE-78-H.
Charging party has alleged sufficient facts to state a prima facie violation
of Ms. Liebman's right to have union representation at a meeting convened on
January 13, 1983 by an employer representative. 	The meeting, according to the
allegations, was held by a higher level supervisor, was part of the employer's
appeal procedure, and concerned her request for a job audit and
reclassification. 	Her request was denied, and she was formally reprimanded
for not attending the meeting. 	Redwoods Community College District 	(3/15/83)
PERB Decision No. 293; Fremont Union High School District 	(4/6/83) PERB
Decision No. 301. 	The complaint will thus issue as to this allegation.
Charging party has failed 	to allege other employer conduct constituting a
prima facie violation of section 3571(a). 	There is no allegation that
Ms. Liebman engaged in protected activities known to her supervisor,
Ms. Baker. 	Moreland Elementary School District (7/27/82) 	PERB Decision

Edward M. Opton, Jr.
Ernest Haberkern
May 26, 1983
Page 4
No. 227. 	Consequently, there is no "nexus" (or connection) between the
exercise of rights by Ms. Liebman and the work schedule change, the demand
for student evaluation forms, or the performance evaluation which rated her
lower because she had revealed that she did not distribute such forms to her
students. 	Nor is there an allegation that Ms. Liebman engaged in protected
activities known to the undescribed University management representative who
issued letters of warning to her on February 9, 1983 and April 12, 1983.
Accordingly, all allegations are dismissed which do not refer to the alleged
violation of Ms. Bailey's HEERA rights or to the alleged denial of
Ms. Liebman's right to be represented by her employee organization at the
January 13, 1983 meeting with employer representative Rauch.4
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
partial refusal to issue a complaint (dismissal) 	to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty (20) calendar days after service of this Notice
(section 32635(a)). 	To be timely filed, the original and five 	(5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on June 15, 1983, or sent by telegraph or certified
United States mail postmarked not later than June 15, 1983 	(section 32135).
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 	95814
4Charging party was provided an opportunity to cure the defects in the
charge as presently written. 	Three amendments were solicited by the regional
attorney. 	On April 25, 1983, charging party was sent a four-page letter
requesting specific information as well as copies of documents relevant to the
charge. 	Charging party was queried explicitly concerning the knowledge of
her alleged representational activity by particular employer representatives
(letter attached; specifically see questions No. 16 (on p. 2 ) , 	(7 (on p. 3)
and 8 (on p. 4)). 	Charging party also failed to comply with the procedures
explained in the regional attorney's letter. 	The document was not timely
filed; nor did it comply with the recommended form.

Edward M. Opton, Jr.
Ernest Haberkern
Kay 26, 1983
Page 5
If you file a timely appeal of the refusal to issue a complaint, any other
party may file with the Board an original and five 	(5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 32635(b)).
Service
All documents authorized to be filed herein must also be "served" upon all
parties to the proceeding, and a "proof of service" must accompany the
document filed with the Board itself 	(see section 32140 for the required
contents and a sample form). 	The document will be considered properly
"served" when personally delivered or deposited in the first-class mail
postage paid and properly addressed.
Extension of Time
A request for an extension of time in which to file a document with the Board
itself must be in writing and filed with the Board at the previously noted
address. 	A request for an extension must be filed at least three (3) calendar
days before the expiration of the time required for filing the document. 	The
request must indicate good cause for and, if known, the position of each other
party regarding the extension, and shall be accompanied by proof of service of
the request upon each party (section 32132).
Final Date
If no appeal is filed within the specified time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
PETER HABERFELD'
Regional 	Attorney
c c : 	General Counsel