California Faculty Association (Wang) (PERB 0692H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DR. 	CHENG T. 	WANG,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case 	No. 	LA-CO-11-H
PERB 	Decision 	No. 	692-H
July 26, 	1988
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Appearances; 	Dr. 	Cheng T. 	Wang, 	on his own behalf; 	Reich,
Adell 	& 	Crost 	by 	Glenn 	Rothner 	for 	California 	Faculty
Association.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal by 	Charging 	Party 	of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge 	that 	the 	Respondent
violated section 3571.1, 	subdivisions 	(b) 	and 	(e) 	of the Higher
Education 	Employer-Employee 	Relations 	Act. 	We have 	reviewed
the 	dismissal 	and, 	finding 	it 	to be 	free 	of prejudicial 	error,
adopt 	it 	as 	the 	Decision 	of 	the 	Board 	itself.
The 	unfair practice charge 	in 	Case 	No. 	LA-C0-11-H 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	Board
)
_____________ )

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, California 94108
(415)557-1350
December 14, 	1987
Dr. 	Cheng T. Wang
Re: 	Wang v. 	California 	Faculty Association;
Unfair 	Practice 	Charge No. 	LA-C0-11-H
Dear Dr. Wang:
On September 	16, 	1987, 	you 	filed the above-captioned unfair
practice 	charge 	against 	the 	California 	Faculty Association 	(CFA
or Association) 	alleging 	that 	CFA violated 	section 3571.l(b)
and 	(e) 	of 	the Higher 	Education 	employer-employee 	Relations Act
(HEERA or Act) 	by 	failing 	to 	satisfy 	its 	duty of 	fair
representation.
I 	indicated 	to you 	in 	my attached 	letter 	dated
November 	6, 	1987, 	that 	the above-referenced charge did 	not
state a 	prima 	facie 	case. 	You were advised 	that 	if 	there 	were
any 	factual 	inaccuracies 	or 	additional 	facts 	which would
correct 	the 	deficiencies 	explained 	in 	that 	letter, 	you 	should
amend 	the 	charge 	accordingly. 	You were 	further 	advised 	that
unless 	you amended 	the 	charge 	to 	state a 	prima 	facie 	case 	or
withdrew 	it prior 	to November 	20, 	1987, 	it would be dismissed.
In 	response 	to my letter, 	I 	received three 	separate mailings
including 	numerous 	attachments.
Certain 	items raised 	in your 	letter 	dated November 	11, 	1987,
concern 	alleged 	factual 	inaccuracies 	in 	my 	letter 	to you 	dated
November 	6, 	1987.1 You assert 	that 	you were 	not 	advised by
University President 	Steven Horn on or about March 	12, 	1987 	of
your 	impending 	dismissal, 	but 	rather 	were 	so advised by
June 	Cooper. 	You contend that 	I 	failed to 	include 	the 	fact
Your 	letter dated November 11, 	1987, 	you 	indicate
that 	the 	instant 	charge 	"will 	not be amended." 	Nonetheless,
1In	you hav	lrn e 	included 	certain 	factual 	allegations 	that 	take 	issue
with my 	findings 	and conclusions. 	I have 	considered 	each 	of
these 	submissions 	as 	amendments 	to your 	charge and have
measured 	them 	against 	the 	requirements 	of a 	prima 	facie 	case.
fIATE Of

Dr. 	Cheng T. Wang
December 14, 	1987
Page 	2
that 	you 	instructed Tom Angell, 	the 	University president's
designee, 	to check with 	the 	female 	student who had 	lodged 	the
complaint 	against 	you. 	You contend 	that 	the 	letter 	from
Christine Maitland, 	CFA grievance/arbitration 	specialist, 	was
dated March 20, 	1987, 	not 	received on that date. 	You contend
that 	in your 	letter 	to President 	Horn on or 	about
March 	23, 	1987, 	you referred to possible 	legal action against
the parties 	involved. 	You also dispute 	the 	fact 	that you
advised Horn 	that 	you were not 	a 	CFA member. 	You allege 	that
in your 	discussion with Maitland on or about April 	27, 	1987,
you did not 	disagree 	on whether 	you 	should 	file a 	grievance
against 	Cooper. 	You take 	issue 	with 	the 	statement 	that
Maitland 	assisted 	you 	in 	completing 	the 	contract 	grievance
form. 	You assert 	she 	gave you the blank 	form, 	a booklet which
included 	instructions 	on how 	to 	file a 	charge and, 	to ensure
that 	CFA would not be your 	representative, 	entered the word
"none" 	in the blank 	space 	for 	designation of your
representative. 	You 	indicate 	that 	prior 	to 	the meeting 	on
April 	27, 	1987, 	during which you discussed the possibility of
filing a 	grievance 	against 	Cooper, 	you complained 	to Maitland
that 	she 	was 	unavailable. 	You 	claim Maitland 	said 	she 	was
unable 	to 	return your 	call but, 	you 	find Maitland's assertion
difficult 	to believe. 	You also contend 	that 	on April 	27, 	1987,
you 	mentioned 	the 	appeal 	possibility with 	Maitland and 	she
indicated 	that 	the 	deadline had 	passed. 	You 	contend 	that 	you
argued 	with her 	about 	how 	many days 	were 	permitted 	for 	appeal.
You allege 	that between April 	27 	and May 	19, 	1987 	you made
several 	calls 	to CFA and 	Maitland but 	received 	no 	response 	on
the 	representation 	issue. 	You object 	to my 	statement 	that 	you
indicated 	your 	intention 	to challenge 	the 	University 	in 	a 	civil
lawsuit. 	You 	indicate 	the 	intention you 	conveyed was 	to
probably or 	possibly challenge 	the 	University. 	You 	argue 	that
on or about April 	14, 	1987, 	you made a request of CFA that your
grievance 	proceed 	to 	arbitration and 	that 	you wanted 	a 	meeting
convened with Paul Worthman, 	CFA Associate General Manager, 	to
"discuss 	the 	problem with Maitland." 	You 	indicate 	that 	you
also wanted 	to discuss 	"the 	representation 	issue." 	You
correctly 	indicate 	that 	your 	appeal 	of 	CFA's 	decision 	declining
to take your 	case 	to arbitration was dated August 	24, 	1987,
rather 	than as 	I 	indicated, 	August 	8, 	1987. 	You assert that
your 	request 	of 	September 	5, 	1987, 	to CFA General Manager
Edward 	Purcell 	was 	based 	on 	the 	University's 	failure 	to 	supply
Maitland, 	rather 	than you, 	with documents 	sent 	to the
University. 	You 	contend 	that 	you did 	not 	refer 	to Maitland's
failure 	to return 	telephone calls on March 11 	or 	12, 	1987
because you did not 	leave 	a 	message. 	You 	take 	issue 	with my
statement 	that 	you 	failed 	to attend 	"at 	least 	one 	meeting."
You allege there was only one meeting arranged, 	March 11, 	1987,
which 	you 	decided 	not 	to attend.

Dr. 	Cheng T. Wang
December 14, 	1987
Page 3
None of 	the 	factual 	inaccuracies 	or 	omissions 	noted above 	is
sufficient 	to demonstrate 	that 	CFA acted 	in an arbitrary,
discriminatory or 	in bad 	faith manner. 	For 	example, 	there 	is
no 	legal 	significance 	in 	the 	fact 	that 	you 	advised 	the
University of a 	"possible" 	challenge rather 	than a 	lawsuit.
Nor 	is 	there any 	significance between a 	request 	to discuss 	the
"problem with Maitland" 	as 	opposed 	to a 	desire 	to discuss 	"the
representation 	issue." 	Nor 	is 	there 	significance 	in the 	fact
that 	you 	raised with 	the 	University 	its 	failure 	to 	supply
Maitland 	with 	documents 	rather 	than 	to 	supply you 	with
documents. 	In all, 	the 	specific 	factual corrections noted
above 	do 	not 	demonstrate 	conduct 	on 	the 	part 	of 	CFA that 	rises
to a 	breach 	of 	the 	duty of 	fair 	representation.
You 	raise 	other 	alleged 	factual 	inaccuracies 	that 	bear 	on 	CFA's
conduct. 	You allege that 	Maitland's 	statement 	in her
March 	20, 	1987 	letter 	is 	untrue to the 	extent 	that 	she 	said 	she
discussed 	timelines 	with 	you on 	the 	telephone. 	This disparity
is 	not 	critical. 	As you 	indicate, 	you were entitled to appeal
the 	decision of 	University President 	Horn within 	ten days 	of
your 	receipt 	of 	the 	President's 	decision. 	Horn's 	decision 	was
dated March 	12, 	1987. 	Based on receipt 	of 	Maitland's March 	20
letter 	on 	the 	same day, 	you 	calculate 	that 	you had 	2 days
within 	the 	10 	day period 	to appeal 	after 	receipt 	of 	Maitland's
letter. 	While you may have 	desired more 	time 	to prepare 	your
appeal, 	nothing 	contained 	in the allegations persuades 	me 	that
you would have been 	unable 	to 	submit 	a 	timely appeal.
Moreover, 	assuming Maitland 	did not 	discuss 	appeal 	rights 	with
you 	in her 	telephone 	conversation prior 	to her 	letter, 	you were
advised on 	several 	occasions 	of 	the 	appeal 	timelines. 	In 	the
letter 	dated 	February 	23 	from Horn 	issued by Cooper, 	paragraph
VI 	plainly 	spells 	out 	your appeal 	rights. 	This was 	reiterated
in 	the 	letter 	dated March 	12, 	1987 	from Horn. 	Your 	awareness
of 	the 	appeal 	timelines 	was 	not 	dependent 	upon 	Maitland's
letter 	and 	thus 	I 	conclude 	that, 	by advising you 	of 	the
necessity of heeding 	appeal 	timelines 	by 	letter 	dated 	March 	20,
1987, 	this 	conduct does 	not 	establish a breach 	of 	the duty of
fair 	representation.
Many of 	the 	factual 	assertions 	and 	arguments 	set 	forth 	in your
submission of November 	11, 	1987, 	concern whether or not
Maitland 	was 	aware of 	your 	desire 	to appeal. 	There 	is 	no
contention 	in 	your 	charge 	upon which 	the 	duty 	of 	fair
representation 	violation 	is based 	that 	suggests 	Maitland 	was
unaware of your 	intent 	to appeal. 	In other words, 	Maitland's

Dr. 	Cheng T. Wang
December 14, 	1987
Page 	4
conduct, 	with regard 	to your 	appeal 	of 	the 	disciplinary
decision 	of 	the University, 	did not 	rest 	on her 	assertion 	that
she 	lacked knowledge of your 	intent 	to appeal. 	Thus, 	all of
the 	additional 	factual 	allegations 	demonstrating 	that 	Maitland
was 	aware 	of 	your 	desire 	to appeal 	are 	irrelevant 	to your
charge 	that 	she 	failed 	to provide 	fair 	representation.
You also 	take 	issue with 	the 	conclusion 	that 	Maitland
adequately assisted you 	in 	completing 	your 	grievance. 	As 	you
note, 	she 	provided you a blank 	grievance 	form and 	a booklet
instructing you on how to 	file a 	grievance. 	Since 	the contract
permits you, 	as an individual employee, 	to file a grievance,
the 	conduct 	you 	describe 	with 	regard 	to 	the 	grievance 	form and
Maitland's assistance does not 	rise 	to 	the 	level 	sufficient 	to
establish 	a breach 	of 	the 	duty of 	fair 	representation.
You also 	take 	issue with 	my conclusion 	that 	Maitland's belief
on March 	20, 	1987 	that 	you had 	elected 	to proceed 	on your 	own
behalf was 	not 	unreasonable. 	You correctly note 	that 	one basis
for 	my conclusion 	rests on the 	fact 	that on March 	23, 	1987,
3 days after Maitland's 	letter of March 20, 	1987, 	you told
University President 	Horn 	that 	you 	were 	not 	a 	CFA member 	and
would 	not 	follow 	the 	appeal 	procedures. 	You are 	quite 	correct
that 	Maitland 	could 	not have been aware 	of 	your 	correspondence
with Horn on March 20, 	1987. 	Nonetheless, 	sufficient 	evidence
supports 	the 	conclusion 	that 	Maitland's 	belief was 	not
unreasonable. 	After 	you received notice of 	the 	pending
disciplinary action, 	Maitland 	telephoned 	you on 	or 	about
March 4, 	1987 	and 	set 	up a 	meeting 	for 	March 11, 	1987 with
Angell. 	Maitland 	discussed 	with 	you 	her 	opinion 	that 	you
should 	not 	make 	written 	submissions 	to 	the 	University 	in her
absence. 	You did 	so. 	Maitland arranged 	a 	meeting with Angell,
the 	one 	individual 	with 	whom you 	were 	entitled 	to 	meet 	prior 	to
the 	University President's 	decision. 	You 	canceled 	that 	meeting
in her absence. 	On May 	19, 	1987, 	you advised Purcell of your
dissatisfaction 	with 	Maitland 	and 	your 	decision 	not 	to 	fight
the 	discipline 	procedure because 	the 	issue 	of 	Cooper's 	conflict
of 	interest 	was 	not 	addressed. 	You 	told 	Purcell 	you 	intended
to possibly 	challenge 	the 	University's 	decision 	in a 	civil
matter 	and 	that 	you 	intended 	to pursue 	certain 	grievances. 	In
sum, 	you were 	dissatisfied 	with Maitland's 	representation and
failed 	to heed her 	advise. 	You 	cancelled a 	critical 	meeting 	in
her 	absence and 	made 	submissions 	against her 	recommendations.
Based 	on 	these 	factors, 	Maitland 	did 	not 	act 	unreasonably when
she wrote you on March 	20, 	1987, 	indicating her belief 	that you
elected 	to proceed 	on your 	own behalf.

Dr. 	Cheng T. Wang
December 14, 	1987
Page 	5
You 	raise 	various 	arguments 	with regard 	to CFA's 	representation
policy and your 	awareness 	thereof. 	Pursuant 	to that policy,
CFA recognizes 	its 	obligation 	to represent 	its 	members 	in
grievances 	undertaken 	as 	the 	exclusive 	representative 	in
grievance 	procedures 	reflected 	in 	the 	memorandum of
understanding 	(MOU). 	With 	regard to 	its 	representation 	in
other 	forums, 	CFA indicates 	it will, 	at 	its discretion and as
resources 	allow, 	provided advice and consultation to members 	of
the bargaining 	unit. 	With regard 	to your 	grievances 	initiated
under 	the 	MOU, 	I 	stand by the 	statement 	made 	in my letter 	to
you dated November 	6, 	1987. 	The 	facts as alleged establish no
failure 	on 	the 	part 	of 	CFA to advise you 	of 	your
representational 	rights 	under 	CFA's 	policy. 	The 	right 	to 	seek
review 	of 	CFA's 	decision 	attaches 	when 	the 	decision 	to proceed
to arbitration 	is made. 	It 	is at 	that 	juncture, 	following 	the
last 	pre-arbitration 	step 	of 	the 	grievance 	procedure 	that 	you
were 	entitled 	to the 	Committee's 	review. 	Contemporaneous with
CFA's 	decision not 	to arbitrate your 	grievance, 	you were made
fully 	aware 	of 	the 	Association's 	representation policy.
To 	the 	extent 	you 	contend 	that you were 	not 	advised 	of 	the
policy when Maitland wrote to you on March 	20, 	1987, 	you are
mistaken. 	The 	procedure 	outlined 	in CFA's 	representation
policy refers 	to 	those 	instances 	where 	CFA declines 	to provide
representation. 	This 	does 	not 	encompass 	the 	situation where an
individual 	employee 	wishes 	to protest 	the 	individual
representative 	a 	union has provided. 	I 	know 	of no case
establishing 	that 	a 	union breaches 	its 	duty of 	fair
representation 	by 	failing 	to provide 	an 	individual 	with 	a 	union
representative 	of his/her 	choosing. 	See Castelli 	v. 	Douglas
Aircraft 	Co. 	(9th Cir. 	1985) 	118 LRRM 2717. 	For 	reasons you
have 	articulated, 	you 	were 	dissatisfied 	with 	the 	representation
Maitland 	provided 	and 	gave 	her 	the 	impression 	you had 	made 	a
determination 	to proceed 	without 	her 	as 	your 	representative.
In essence, 	what 	you are 	now contending 	is 	that 	you wanted 	a
CFA representative 	other 	than 	Maitland. 	The 	fact 	that 	CFA was
unwilling 	to provide 	you 	with 	a 	representative 	of your 	choice
does 	not 	establish a 	breach of 	the 	duty of 	fair 	representation.
Among 	the documents 	you 	submitted on November 	11, 	you 	indicate
that 	the parties' 	MOU does not 	satisfy the requirements of
Education 	Code 	section 89542.5, 	which you 	indicate 	requires 	an
independent 	faculty committee hearing. 	In 	conjunction with
this 	Education 	Code provision, 	you provided me 	with a 	copy of 	a
letter dated October 9, 	1987, 	from B. 	Robert Kreiser, 	Associate

Dr. 	Cheng T. Wang
December 14, 	1987
Page 6
Secretary of 	the 	American Association of 	University Professors,
(AAUP) 	addressed 	to University President 	Horn. 	Kreiser
indicates 	that 	neither 	of 	the 	alternative routes 	of appeal 	of
the 	University's 	disciplinary action 	afford you 	sufficient 	due
process 	safeguards as 	required by 	the 	1958 	AAUP 	Statement 	on
procedural 	standards 	and 	faculty dismissal 	proceedings.
PERB's 	jurisdiction 	in a 	case 	where 	the 	charging 	party alleges
a breach 	of 	the 	duty 	of 	fair 	representation 	is 	to analyze 	the
allegations 	in 	the 	charge 	to determine whether 	the 	conduct 	was
arbitrary, 	discriminatory or 	in bad 	faith. 	PERB does 	not have
jurisdiction 	over 	violations 	of 	the 	Education Code 	or 	over
policy 	statements 	issued by AAUP. 	Thus, 	this 	new allegation
does 	not 	establish a breach of 	CFA's 	duty to you.
Additional 	facts 	raised 	in your 	letter 	of November 	11, 	1987,
likewise 	do not 	alter 	my conclusion. 	The 	fact 	that 	Maitland 	in
her 	letter 	of March 	20, 	1987 	referred 	to your 	engaging a 	lawyer
does not, 	contrary to your 	assertion, 	establish 	that 	the 	case
was difficult 	and 	thus, 	was beyond Maitland's abilities. 	Nor
is 	it 	relevant 	that 	it 	is 	costly to retain a 	private attorney
to represent you. 	In 	sum, 	the 	factual allegations 	in your
November 	11, 	1987 	submission do not 	add 	facts 	sufficient 	to
support 	a 	conclusion 	that 	CFA breached 	its 	duty 	of 	fair
representation.
On or about November 	20, 	1987, 	I 	received a 	second 	letter
regarding this matter 	dated November 	17, 	1987. 	Upon 	review 	of
your 	records, 	you allege 	that 	one hour 	prior 	to the 	meeting
with Angell 	on March 	11, 	1987, 	you arranged 	for Maitland 	to
come 	to. your 	office. 	You allege 	that 	although you 	canceled 	the
meeting with Angell, 	you 	never 	canceled 	the 	meeting with
Maitland 	and 	she 	did 	not 	show 	up. 	You 	indicate 	that 	after 	you
canceled 	the 	meeting 	with Angell, 	Maitland made 	no 	effort 	to
contact 	you and 	you 	were 	unsuccessful 	in 	your 	efforts 	to
contact her. 	These 	facts 	do not 	change 	my opinion 	that 	CFA
acted 	in a 	way 	consistent 	with 	its 	duty of 	fair
representation. 	It 	is 	not 	unreasonable 	to conclude 	that 	the
hour 	meeting 	in 	your 	office with Maitland prior 	to your 	meeting
with Angell 	was 	for 	the 	purpose 	of preparing 	for 	the meeting
with Angell. 	Inasmuch as you canceled 	that 	meeting, 	Maitland's
failure 	to 	appear 	for 	that 	meeting does 	not 	evidence
unreasonable or 	arbitrary conduct. 	Facts 	relating 	to your
efforts 	to contact Maitland after March 	11, 	1987, 	are 	the 	same
as 	those 	that 	appear 	in 	the 	original 	change and 	the 	amendments
and 	thus 	do 	not 	alter 	the 	conclusion 	I 	reached based 	on 	your
prior 	submissions.

Dr. Cheng T. Wang
December 14, 	1987
Page 	7
In your 	letter dated April 	17, 	1987 you also refer to a
conversation with Bob Winchell, 	CFA campus president, 	in
April 	1987 	regarding 	the 	lawyer 	referral 	service. 	This 	fact 	is
presented 	to establish 	that 	you never 	ruled 	out 	an appeal. 	As
noted above, 	Maitland's 	or 	CFA's activity on your behalf was
not based on 	their 	assertion 	that 	they were 	unaware 	of your
intent 	to appeal. 	Maitland perceived 	that 	you had 	elected 	to
proceed 	without 	her 	representation 	and 	acted 	accordingly.
Your 	second 	submission also refers 	to the 	fact 	that 	you 	failed
to tape record a meeting with Maitland on April 	27, 	1987. 	The
allegations 	in this document 	do not 	indicate 	the 	content 	of
that 	meeting or 	why it 	is 	significant 	to accessing CFA's
conduct.
Also 	included 	in 	this document 	is reference 	to 	the 	CFA
Representation Committee's determination 	not 	to 	arbitrate 	your
contract 	grievance. 	You 	indicate 	that 	in the 	attached 	letter
dated November 12, 	1987, 	the 	signature of the Representation
Committee chair, 	Joan Edelstein, 	is not her 	signature, 	and you
also 	indicate 	that 	her 	letter 	fails 	to 	refer 	to all 	of 	the
contract 	provisions 	you attest 	are 	raised by your 	grievance.
You 	also 	claim that 	since 	the 	Committee 	met 	on
October 11, 	1987, 	their letter to you dated November 12, 	1987,
is 	late and 	no 	explanation 	for 	this 	lateness has 	been 	offered.
To 	the 	extent 	that 	you wish me 	to consider 	the Committee's
decision 	not 	to pursue 	your 	grievance 	to arbitration as 	an
amendment 	to this 	charge, 	I 	find no 	indicia of 	arbitrary,
discriminatory or 	bad 	faith 	conduct 	based 	on 	Edelstein's 	letter
to you. 	She 	indicates 	that 	the 	Committee 	unanimously voted 	to
sustain 	the 	decision 	of 	the Associate 	General 	Manager 	not 	to
arbitrate 	your 	grievance because 	the 	Committee 	could 	not
identify any 	evidence 	of 	any contractual 	violation 	in 	this
matter. 	Edelstein also notes 	that 	you 	determined not 	to 	follow
the 	disciplinary procedure 	to 	contest 	your 	termination 	and,
therefore, 	CFA is 	unable to provide 	further assistance 	to you
at 	this 	time. 	You have alleged no 	facts 	to assist me 	in my
determination 	of 	the Committee's assessment 	of 	your 	contractual
grievance. 	Thus, 	I 	find nothing in this 	filing to alter my
conclusion 	that 	the 	facts 	you have 	alleged 	in your 	original
charge 	and 	in 	the 	two documents 	you 	forwarded 	to me 	establish 	a
prima 	facie 	case 	of a 	violation of 	the 	duty of 	fair
representation.

Dr. 	Cheng T. 	Wang
December 14, 	1987
Page 	8
On or about 	December 	1, 	1987, 	I received a 	third document 	from
you. 	Although this document was 	received beyond 	the deadline
date, 	November 20, 	1987, 	I will nonetheless consider this
document 	in assessing the 	sufficiency of your allegations. 	You
provided me with a document dated November 	23, 	1987, 	from Glenn
Rothner, 	an attorney with Reich, 	Adell & Crost. 	In this
letter, 	Rothner 	chastises 	you 	for 	personally contacting
Virginia 	Ann 	Chadwick, 	CFA president 	at 	the Long 	Beach 	campus.
Rothner 	asks 	that 	you 	refrain 	from personally 	contacting
Chadwick 	inasmuch 	as 	his 	firm 	is 	the 	designated 	representative
of 	CFA. 	You also 	include a 	letter 	from you dated November 	26,
1987 	in which you 	chastise CFA for 	using 	faculty members' 	funds
to hire an attorney. 	There 	is also attached 	to this document
an 	undated 	letter 	from Chadwick 	indicating 	that 	your 	letter 	to
her dated November 	17, 	1987 was 	forwarded 	to Rothner.
None 	of 	this 	information has any relevance 	to your 	charge 	that
CFA 	failed 	to provide you with adequate 	representation 	in 	your
dispute 	with 	the 	University.
For 	the 	reasons 	stated herein, 	as well as the reasons 	stated 	in
my letter 	to you dated November 	6, 	1987, 	the allegations 	in
your 	charge 	fail 	to establish 	the 	prima 	facie 	case 	that 	CFA
breached 	its 	duty 	of 	fair 	representation 	in 	violation 	of 	the
HEERA.
Right 	to Appeal
Pursuant 	to Public Employment 	Relations 	Board 	regulations, 	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 	dismissal 	(California 	Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such 	appeal 	must 	be 	actually
received by 	the 	Board 	itself before 	the 	close 	of business
(5:00 p.m.) 	or 	sent by telegraph, 	certified or 	Express United
States mail postmarked no 	later 	than 	the 	last 	date 	set 	for
filing 	(section 	32135). 	Code of 	Civil 	Procedure 	section 	1013
shall 	apply. 	The 	Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If you 	file 	a 	timely appeal of 	the 	refusal 	to 	issue a

Dr. Cheng T. Wang
December 14, 	1987
Page 9
complaint, 	any other party may 	file with 	the 	Board an original
and 	five copies 	of a 	statement 	in opposition within 	twenty
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 each copy of 	a 	document 	served upon a
party or 	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 	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.
Sincerely,
John 	Spittler
Acting 	General 	Counsel
By Carol A. 	Vendrillo
Staff 	Attorney
Attachment

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
November 6, 	1987
Dr. Cheng T. Wang
Re: 	Wang v. 	California Faculty Association
Unfair Practice Charge No. 	LA-C0-11-H
Dear Dr. Wang:
I 	am in 	receipt 	of 	the 	above-captioned 	charge 	filed 	on
September 16, 	1987, 	in which you allege that the California
Faculty Association 	(CFA or Association) 	violated 	section
3571.l(b) 	and 	(e) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA or Act) 	by failing 	to 	satisfy 	its duty of
fair 	representation.
My 	investigation has 	revealed 	the 	following 	facts. 	You have
been employed 	by 	the California 	State University 	at 	Long 	Beach
(University) 	as 	an Associate Professor of electrical
engineering. 	On or about February 23, 	1987, 	based on
allegations 	of 	sexual 	harassment, 	you 	received 	notice 	from the
University of 	pending disciplinary 	action 	Thereafter, 	on or
about March 	12, 	1987, 	you were advised by University President
Stephen Horn that you would 	be dismissed 	from employment 	as 	of
May 29, 	1987. 	On or 	about March 4, 	1987, 	you were called by
Christine Maitland, 	CFA Grievance/Arbitration 	Specialist.
Maitland 	advised you 	not 	to 	do 	anything 	regarding 	the 	pending
disciplinary 	request 	until 	she 	returned 	from her 	vacation. 	On
or about March 5, 	1987, 	against Maitland's advice, 	you
submitted 	a 	response to Tom Angell, 	the University President's
designee. 	You 	advised Angell 	that 	you 	felt 	it was 	not
necessary to meet with him but, 	rather, 	requested 	a meeting 	at
the University President's 	level. 	You 	instructed Angell 	to
write 	his 	report 	based 	on 	the 	information provided 	and 	on 	the
basis of the complaining witnesses' 	version of 	the facts. 	You
further 	advised 	him that 	you were 	taking 	this 	action 	against
the advise of your union 	representative.

Dr. Cheng T. Wang
November 	6, 	1987
Page 2
On or about March 20, 	1987, 	you received a letter 	from Maitland
indicating 	that 	she had 	received 	a copy of 	the 	above-referenced
response sent 	to Angell. 	She also indicated 	as 	follows:
Since you 	cancelled our meeting 	and 	the 	one
I 	had 	set up with the administration, 	I
assume you 	intend 	to 	represent yourself 	in
this matter. 	You have received 	a copy of
the disciplinary procedures. 	As 	I 	told you
on the phone, 	it is necessary that the
timelines 	in the procedure be strictly
followed. 	It 	is necessary that you and/or
your 	attorney process 	the 	appeal within
those timelines.
On or 	about March 23, 	1987, 	you addressed correspondence to the
University President 	taking 	issue with 	the dismissal
recommendation. 	You 	indicated that 	since you were not 	a CFA
member, 	you would not 	follow the 	appeal 	procedures 	to 	"fight
against 	the 	parties 	involved."
On or 	about April 	27, 	1987, 	you met with Maitland. 	You advised
Maitland 	that 	you wished 	to 	file grievances 	against 	several
parties. 	Maitland 	advised you 	against 	initiating 	any 	action
against 	a 	female 	student who 	levied 	the 	sexual 	harassment
charges 	against 	you. 	You 	and Maitland 	also disagreed 	on
whether you 	should 	file a grievance against 	June Cooper, 	the
University Vice 	President who was 	responsible 	for 	initiating
the disciplinary 	request 	after 	hearing 	of 	the 	students'
complaints. 	During 	this meeting, 	Maitland assisted you 	in
completing 	a 	contract 	grievance 	form and 	entered 	the word
"none" 	in 	the 	blank space 	reserved 	for 	the name of 	the
employee's 	representative. 	Maitland 	gave you 	instructions 	on
how to 	proceed 	and 	a 	booklet 	about 	the negotiated memorandum of
understanding. 	As 	a 	result of your 	interaction with Maitland,
you 	acquired 	the 	belief 	that 	she could not 	be 	impartial 	and you
requested 	another 	representative. 	Maitland 	denied 	that
request, 	telling you that Paul Worthman, 	CFA Associate General
Manager, 	was 	her 	superior 	at CFA. 	According to your charge,
Maitland 	said 	you 	should 	file your 	complaint 	yourself 	and you
told 	her 	that 	that 	meeting would 	be 	the 	last 	time you would
meet with 	her 	unless 	or until Worthman directed 	her 	to 	conduct
herself 	differently.
On or 	about May 19, 	1987, 	you addressed a 	letter 	to CFA General
Manager 	Edward 	Purcell 	indicating 	your 	dissatisfaction with
Maitland. 	You 	indicated 	that Maitland 	rejected your 	requests
for 	a 	change 	in 	representative on two occasions 	and 	failed to
return 	a 	telephone call 	on one occasion. 	You 	advised 	Purcell
of 	your 	decision not 	to 	follow 	the discipline 	procedure
"because 	the 	issue of 	conflict 	of 	interest was 	not 	addressed."
'

Dr. Cheng T. Wang
November 6, 	1987
Page 3
You 	indicated your 	intention to challenge the University's
decision 	in a civil 	law suit 	and your 	intention to pursue
certain grievances. 	You requested that CFA appoint 	a
representative other 	than Maitland to 	assist you 	in processing
these grievances.
On or 	about May 28, 	1987, 	Purcell 	responded to your 	letter
indicating 	that CFA would not 	assume 	representation of you 	at
the second 	level of 	the grievance procedure. 	Purcell 	indicated
that the grievance at issue had, 	in his assessment, 	no valid
contractual 	basis 	and would not 	serve to undo or modify the
previously 	determined 	disciplinary 	action which you 	chose 	not
to appeal. 	Noting that the contract permitted you to proceed
without CFA's 	involvement 	at 	the 	second 	level 	of 	the grievance
procedure 	and noting your 	unwillingness 	in the past 	to 	accept
CFA's 	advice, 	Purcell 	indicated that CFA declined to represent
you at that time.
On or 	about May 29, 	1987, 	you wrote to Purcell taking issue
with various 	facts 	in his 	letter. 	You 	indicated your belief
that 	only one meeting with CFA did not 	take place 	and that you
were warned 	only once 	about 	the dismissal 	appeal 	timelines.
You 	asked Purcell 	to 	advise you 	as 	to CFA's 	intent 	to 	represent
you 	in 	arbitration of 	the grievances 	filed.
On or 	about June 2, 	1987, 	Purcell 	informed you of his belief
that 	the 	second 	level 	of 	the grievance procedure had not been
completed. 	He 	advised you 	to contact CFA when such decision
issued 	and 	to provide him with 	a 	copy of 	that 	decision 	and with
any other 	documents 	or 	arguments you wished to make.
A level two grievance meeting was held on June 26, 	1987.
Thereafter, 	you 	received the University's decision at 	that 	step
and, 	on or 	about July 14, 	1987, 	you requested that CFA proceed
to 	arbitration on your 	behalf. 	You 	also 	requested that 	a
meeting be convened with Worthman 	in order 	to discuss 	"the
problem with ms. maitland 	(sic)."
On or about August 11, 	1987, 	you again wrote to Worthman
requesting 	a meeting to discuss your 	grievance. 	On or 	about
August 	18, 	1987, 	you wrote to Purcell 	requesting 	a meeting to
discuss your 	difficulty with Maitland. 	You 	indicated that 	if
CFA did not 	submit 	a 	timely response, 	you would consider 	it
CFA's decision not 	to 	represent you.
During 	this 	time period, 	you were 	sent 	two 	letters 	from CFA
which 	apparently crossed 	in the mail with the two 	letters you
sent, 	described in the paragraph above. 	On August 	14, 	1987,
Roberta Frye, 	CFA Administrative Assistant, 	advised you that
CFA had 	submitted your 	grievance 	to 	arbitration 	in 	order 	to

Dr. Cheng T. Wang
November 6, 	1987
Page 4
preserve the time 	limits 	for 	such filing. 	That 	letter
indicated 	that 	CFA had 	not 	completed 	a 	thorough 	review of your
case 	and had made no determination as 	to whether 	it would
pursue 	arbitration. 	You 	were 	advised 	that 	CFA would notify
you 	once 	its 	decision was made 	and would 	advise you 	of 	the
procedure to 	appeal 	to 	the CFA Representation Committee 	should
CFA decide not 	to take your case to 	arbitration. 	Enclosed with
Frye's 	letter was 	a copy of 	the CFA Representation Policy.
On or 	about August 	17, 	1987, 	you received a 	letter from
Worthman 	indicating 	that 	CFA would not 	pursue your 	contract
grievance 	to 	arbitration. 	Worthman stated that 	the matter you
sought 	to 	arbitrate 	should have been 	raised 	in your
disciplinary 	appeal. 	You were advised of your 	right 	to 	appeal
Worthman's 	decision to 	the CFA Representation Committee 	in
writing within 	14 	days of 	receipt of his 	letter. 	By 	letter
dated August 	8, 	1987, 	you 	appealed CFA's decision declining 	to
take your case 	to 	arbitration.
On or 	about September 	5, 	1987, 	you made a 	request to Purcell
that 	CFA 	re-open 	the case 	regarding 	the 	proposed disciplinary
request 	even 	though the 	time 	period 	for 	appeal 	of 	that 	decision
had pasted. 	The 	two 	reasons 	for 	this 	request delineated 	in
this 	letter were 	(1) 	the negligence of CFA representative in
failing 	to 	supply you with 	the CFA Representation 	Policy 	in
March 	1987; 	and 	(2) 	the University's 	failure to 	supply you with
documents you 	sent 	to your CFA representative.
On or 	about September 	10, 	1987, 	Worthman advised you that he
had 	forwarded 	your 	appeal 	to 	CFA's 	Representation Committee.
He 	also 	represented that, 	according 	to Maitland, 	you were 	fully
informed of your 	representation 	rights under 	CFA's 	Policy.
Finally, 	on or about September 11, 	1987, 	you wrote a 	letter to
Purcell 	outlining 	your 	disagreement 	with Worthman's 	assertion
regarding 	Maitland. 	You 	strongly contend 	that Maitland 	failed
to 	inform you 	of 	the Representation Policy 	and 	note 	her 	failure
to mention that Policy in her 	letter dated March 20, 	1987, 	and
her 	entry 	in the grievance 	form indicating 	"none" 	as 	the name
of 	your 	representative. 	You 	also 	indicate 	that Maitland was
unavailable when you 	telephoned 	her 	at 	the Long 	Beach 	campus,
that 	CFA continued 	to direct you 	to call Maitland because 	she
was 	assigned 	to 	that 	campus 	and 	that Maitland was 	not 	at 	home
when you 	telephoned her 	there.
Based 	on the 	foregoing, 	the 	factual 	allegations 	set 	forth 	in
this 	charge 	fail 	to allege 	a prima 	facie violation of 	the HEERA
for 	the 	following 	reasons. 	In order 	to establish that 	the
Association 	failed 	to 	satisfy 	its 	duty 	of 	fair 	representation
and 	thus 	committed 	an unfair 	practice under 	the HEERA, 	you must

Dr. Cheng T. Wang
November 6, 	1987
Page 5
allege, 	in a clear and concise statement of facts, 	that CFA's
conduct in representation was arbitrary, discriminatory or 	in
bad faith. 	California State Employees' 	Association 	(Dees)
(1985) PERB Decision No. 496-H.
You 	allege that Maitland 	failed 	to 	represent you 	adequately 	in
the disciplinary action 	initiated 	by the University. 	In
support of this assertion, 	you refer to Maitland's failure to
return telephone calls 	and what you perceive to be her
withdrawal as your 	representative by her 	letter dated March 20,
1987. 	These facts do not establish a breach of 	the duty of
fair representation. 	In Vaca v. 	Sipes 	(1967) 	386 U.S. 	171, 	the- -
United States 	Supreme Court held that 	a union may not process 	a
meritorious grievance 	in a perfunctory manner. 	While Maitland
may not have been available to answer 	all your calls, 	the
conduct you describe 	in the charge cannot 	reasonably be
characterized 	as 	perfunctory. 	Maitland 	discussed your 	case
with you 	and offered you her opinion 	as 	to how to proceed. 	You
declined 	to follow her 	advice 	and 	failed to 	attend 	at 	least 	one
meeting 	Maitland 	had 	arranged.
Moreover, 	her belief on March 20, 	1987, 	that you had elected to
proceed on your own behalf, 	was not unreasonable. 	It was your
decision to 	ignore Maitland's 	recommendations 	and to 	file the
grievance 	rather 	that 	pursue the disciplinary 	appeal. 	Indeed,
you 	so 	advised 	the University President 	of 	this 	election by
your 	letter dated March 23, 	1987, 	and 	similarly advised Purcell
by letter dated May 19, 	1987. 	Finally, 	Maitland's warning to
you 	regarding 	the 	importance of 	the time 	limits 	in 	appealing
you 	disciplinary 	action belies your 	claim that 	Maitland 	acted
with disregard 	for your 	interests. 	Thereafter, 	she met with
you 	and 	assisted you 	in completing 	the grievance 	form. 	Thus, 	I
do not 	find 	from the 	allegations 	in the charge 	that Maitland
declined to proceed 	as your 	representative. 	In 	sum, 	Maitland's
conduct does 	not 	rise to 	the 	level 	sufficient 	to demonstrate 	a
prima 	facie breach of 	the Association's duty.
You 	also 	allege 	that 	CFA breached 	its 	duty by 	failing 	to notify
you 	of your 	right 	to use 	the Representation Policy until August
14, 	1987, well 	after Maitland discontinued her 	representation
status. 	You have provided me with a copy of 	the CFA
Representation Policy. 	It 	obligates CFA to provide 	advise 	to
potential grievants 	in the 	initial 	stages of 	the proceedings.
This was done. 	Maitland gave you 	advice which you elected 	to
disregard. 	The Policy also 	sets 	forth that 	requests 	for
representation 	"following 	the 	last 	pre-arbitration 	step 	of 	the
grievance procedure" 	be made 	in writing to the General
Manager. 	The decision of 	the General Manager 	or 	his/her
designee must 	be made 	in writing within thirty days. 	At 	this
point 	in the proceeding, 	a unit member may contest the General

Dr. Cheng T. Wang
November 	6, 	1987
Page 6
Manager's decision and 	submit an 	appeal 	to the Select Committee
of 	the CFA Statewide Representational Panel. 	Decisions of the
Select Committee are final.
Assuming the 	facts as you have alleged, 	Maitland's failure to
notify you 	of 	the 	appeal 	procedure under 	the Representation
Policy was 	not unreasonable nor was 	it 	in anyway harmful 	to
your 	rights. 	First, Maitland was assisting you in your 	appeal
of 	the disciplinary matter. 	Your 	inability to 	remedy that
disciplinary decision 	rests 	not with your 	representative but
stems 	from your decision not 	to pursue 	the matter because of
your desire to file a grievance instead. 	Second, 	assuming that
CFA was 	still 	obliged 	to 	represent you 	in your 	grievance
processing, 	a matter which you undertook on your 	own volition
and which you 	are entitled 	to do without 	CFA's involvement, no
failure 	to 	fully 	advise you 	of your 	representational 	rights
under 	CFA's 	policy is 	demonstrated. 	The 	right 	to seek review
under 	the 	terms 	of 	the Representation Policy attaches when the
decision to proceed to arbitration 	is made. 	In the words of
the Policy, 	the decision which is 	reviewed by the
Representation Committee 	is 	that 	of 	the General Manager
"following 	the 	last 	pre-arbitration 	step of 	the grievance
procedure". 	Thus, 	only after you were notified of 	the decision
at the second step, 	on or about July 14, 	1987, 	and only after
CFA decided 	not 	to 	take your grievance 	to 	arbitration were you
entitled 	to 	seek the 	review of 	the Committee. 	In her 	letter 	of
August 	14, 	1987, 	Frye explained your rights under the Policy
and 	forwarded 	a copy of 	that Policy with 	a 	promise to notify as
soon 	as 	CFA 	had made 	its 	decision 	regarding 	arbitration.
Thereafter, 	CFA did notify you and, 	in his 	letter of August 	17,
1987, 	you were 	again advised of your 	appeal 	rights to the
Committee. 	In 	sum, 	assuming Maitland did not 	advise you of 	the
availability of 	the Committee's 	review in March, 	you had no
decision 	to 	appeal 	to 	the Committee 	at 	that 	time 	and thus were
not 	harmed 	by that 	alleged 	failure. 	When 	it was 	appropriate 	to
use 	the 	representation committee, 	you were 	informed on how to
proceed.
For these reasons, 	Charge No. 	SF-CO-16-H, 	as presently written,
does 	not 	state 	a prima 	facie case. 	If you 	feel 	that there 	are
any 	factual 	inaccuracies 	in this 	letter 	or 	any 	additional 	facts
which would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the 	charge 	accordingly. 	The 	amended 	charge 	should be
prepared 	on 	a 	standard 	PERB unfair 	practice 	charge 	clearly
labeled First Amended Charge, 	contain 	all 	facts 	and allegations
you wish to make, 	and 	be 	signed under 	penalty of 	perjury by the
Charging 	Party. 	The 	amended charge must 	be 	served 	on 	the
Respondent 	and 	the original 	proof 	of 	service must 	be 	filed with

Dr. Cheng T. Wang
November 	6, 	1987
Page 	7
PERB. 	If 	I do not 	receive 	an amended charge or withdrawal 	from
you before November 20, 	1987, 	I shall dismiss your charge. 	If
you have 	any questions 	on how to proceed, 	please call me 	at
(415) 557-1350.
Sincerely,
Carol A. Vendrillo
Staff 	Attorney
3233t