California State University (Jenkins) (PERB 0853H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIE E. 	JENKINS,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
Respondent.
Case No. 	LA-CE-265-H
PERB Decision No. 853-H
December 5, 	1990
Appearance: 	Willie E. 	Jenkins, 	on his own behalf.
Before Hesse, 	Chairperson; 	Camilli and Cunningham, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by charging party,
Willie E. 	Jenkins 	(Jenkins), 	of the regional attorney's
dismissal, 	attached hereto, 	of an amended unfair practice 	charge
for 	failure 	to 	state a prima 	facie 	case. 	Jenkins 	alleged that
the California 	State 	University 	(University) 	violated his 	rights
under 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act
(HEERA) 	when 	it discriminated/retaliated 	against him 	for having
engaged 	in protected activities. 	Although Jenkins 	did not
identify 	a 	specific 	section of 	HEERA that was 	violated,2 the
regional attorney, 	after conducting an investigation, 	concluded
1 HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code.
22Jenkins 	alleged 	that 	the 	University 	violated 	"HEERA Article
1 	Thru 	[sic] 	6.5."
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he was 	attempting to allege a violation of 	section 	3571(a)3 on
the 	grounds 	that he was 	discriminatorily demoted 	from the
position of 	Mailroom Supervisor 	I4 to Mailroom Leadperson. 	On
appeal, 	Jenkins asserts 	16 	exceptions to the dismissal of his
charge. 	Included with the appeal 	are a variety of 	exhibits. 	One
exhibit, 	in particular, 	is entitled 	"Listing of Events" 	and
contains an itemized statement of 	38 	incidents, 	complete with
dates, 	apparently offered 	in 	support of his 	claim of
discrimination/retaliation. 	Some 	of 	the 	enumerated 	incidents
contained 	in the 	exhibit 	appear to 	be 	restatements 	of 	allegations
contained 	in the 	third amended charge, 	but 	include 	additional
factual 	information establishing 	the dates 	of 	the 	alleged
incidents. 	Other incidents 	identified in the exhibit, 	as well as
in the third amended charge, 	appear to describe 	conduct not
previously 	alleged 	by Jenkins.
3Section 3571(a) 	states:
It 	shall 	be unlawful 	for the higher 	education
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
4The title 	for this position, 	as 	it appears 	in the
collective bargaining agreement, 	is 	"Mail Services 	Supervisor I"
(Class. 	Code 	1504).
22

We have reviewed the dismissal and, 	finding 	it to be 	free 	of
prejudicial 	error, 	adopt 	it as 	the Decision of the Board 	itself
consistent with 	the 	discussion below.
FACTS
Jenkins 	filed his original charge on November 7, 	1989.
Thereafter, 	the charge was 	amended three times. 	The 	first
amended charge was 	filed on November 28, 	1989; 	the 	second amended
charge was also 	filed on November 28, 	1989. 	With the exception
of 	a 	single word change 	in the 	second amended charge, 	the two
amended 	charges 	are 	identical 	to 	the 	original 	charge 	and provided
no new factual 	information to 	support Jenkins' 	claim. 	On
June 	12, 	1990, 	the regional attorney sent a warning letter
notifying Jenkins 	that 	unless 	additional 	information was
provided, 	his 	charge would be dismissed on the 	following grounds:
(1) 	if Jenkins' 	claim is that he has been demoted from a
supervisory position to a member of the bargaining unit, 	then the
charge must be dismissed because, 	under HEERA 	section 	3580,
supervisory 	employees 	do not have 	the 	right 	to 	file 	an unfair
practice 	charge 	to 	remedy violations 	of 	their rights;
alternatively, 	(2) 	if his position is not supervisory,5 then the
charge must 	be dismissed because he has 	failed to 	state
sufficient 	facts 	to 	establish a prima 	facie 	case of
5The 	regional 	attorney's 	investigation revealed 	that,
notwithstanding 	inclusion of 	the word 	"supervisor" 	in Jenkins'
job title, 	the position is, 	in fact, 	not a supervisory position,
but rather, 	is 	included in bargaining Unit 7, 	exclusively
represented by the California 	State Employees Association, 	and
covered by 	a 	collective 	bargaining 	agreement.
33

discrimination/retaliation. 	The 	regional 	attorney 	further 	noted
that 	Jenkins 	alleged only 	in very general 	terms 	that he had
engaged 	in protected 	activity 	and 	failed 	to 	indicate 	how the
demotion constituted an adverse action by the 	employer, 	as 	there
was 	no change 	in salary or working conditions, 	but rather, 	a
change 	in title 	only.
A third 	amended 	charge was 	filed by Jenkins 	on June 	26,
1990,6 in which he: 	(1) 	reasserted his discrimination claim and
supporting facts; 	(2) 	alleged that the University violated
specific 	provisions 	of 	the 	collective 	bargaining agreement when
it changed his 	job title, 	duties, 	and job description, 	and failed
to give notice prior to those changes; 	and, 	(3) 	according to the
regional 	attorney, 	Jenkins 	appeared to 	state new facts 	alleging
discriminatory conduct by the University. 	As 	a 	result 	of 	the
alleged violations 	of the contract, 	the regional attorney
determined 	that 	the 	entire 	charge must 	be 	dismissed 	and deferred
to 	arbitration.7 The 	regional 	attorney 	also 	concluded:
. 	. 	. 	many of the allegations of adverse
actions 	attached 	to 	the 	third 	amended 	charge
at numbers 	1 through 39, 	pages 2 and 3, 	are
also dismissed as 	falling outside 	the 	six
month 	statute of 	limitations period, 	HEERA
6The 	third amended 	charge was 	originally due 	to 	be 	filed 	not
later than June 	19, 	1990. 	The regional attorney, 	however,
granted Jenkins a one week extension, 	until June 26, 	1990, 	in
which to 	file his 	amended charge.
v7The regional 	attorney's 	investigation revealed, 	among other
things, 	that Article V, 	section 	5.14 	of 	the contract provides
that 	"an employee 	shall 	not 	suffer reprisals 	for participation 	in
union activities." 	Also, 	Article VII, 	sections 	7.16 	and 7.22,
provides 	for 	final 	and binding 	arbitration of 	grievances 	and 	that
only 	the Association may 	request 	arbitration.
4

section 3563.2(a) 	(applies 	to all of these
adverse actions except 4, 	5, 	6, 	7, 	10, 	11,
12, 	13, 	15, 22, and 39). 	The original charge
was 	filed on or about November 7, 	1989. 	The
third amended 	charge was 	filed on June 	25,
1990, 	and many of these adverse actions
appear 	to 	raise 	new discriminatory/
retaliatory 	conduct 	not 	found within 	the
original 	charge, 	or which appear to be
unrelated to the initial charge. 	Since, 	in
most cases, 	you have not provided dates 	or
alleged whether 	the 	adverse 	actions 	occurred
on December 25, 	1989 or thereafter, 	the
aforementioned 	allegations 	are 	dismissed 	as
untimely. 	See The Regents 	of 	the University
of California 	(1990) 	PERB Decision No. 	826-H.
(Regional Attorney Dismissal, 	p. 	7.)
DISCUSSION
While we 	agree with the 	regional 	attorney's 	conclusions 	that
Jenkins 	has 	failed,to 	state 	a prima 	facie 	case 	of discrimination
and 	that 	the 	entire 	charge 	must be 	deferred to 	arbitration under
Article V of 	the 	collective bargaining agreement, 	it 	is 	not 	clear
that 	all 	of 	the 	allegations 	were 	correctly 	addressed 	or dismissed
by the 	letter of dismissal.
Specifically, 	the regional attorney states 	that 	"many" 	of
the 	allegations 	fall 	outside 	the 	six-month 	statute 	of 	limitations
period and, 	therefore, 	cannot be used to 	support the unfair
practice 	charge. 	The 	statement 	is 	then qualified by the
conclusion that this analysis 	"applies to all 	. 	. 	. 	adverse
actions 	except 	[those 	specifically 	listed 	in parenthesis 	above]."
This 	phrase 	could be 	read 	to 	mean that 	anything 	not 	included 	in
the 	listed exceptions 	is 	dismissed as untimely. 	We note,
however, 	that Jenkins 	alleged 	in his 	third amended charge:
55

Since the original charge was 	filed, 	other
unlawful 	acts 	have 	occurred.[8] The 	CSU has
committed 	the 	following 	Unfair 	Labor 	Practice
acts against me:
1. 	Wrongful 	suspension and termination
beginning on 	11 	May 	1990 	for misconduct.
We 	do not view this 	allegation as 	falling outside 	the
six-month 	statute 	of 	limitations 	period applicable 	to 	the 	third
amended charge. 	Accordingly, 	Jenkins' 	contention that he was
"suspended and terminated" 	on May 	11, 	1990, 	for engaging in
protected activity 	is 	not dismissed 	as 	untimely. 	The 	allegation
is, 	however, 	as the regional attorney also correctly analyzed,
deferred to arbitration because Article V, 	section 	5.14 	of 	the
collective 	bargaining 	agreement prohibits 	the 	employer 	from
taking 	reprisals 	against 	an employee 	for participation 	in union
activities.'
It 	is 	also not 	clear what 	the 	regional 	attorney meant by his
statement 	that 	the 	third 	amended 	charge:
8It appears 	that Jenkins alleged 	3 9 	separate acts 	of
discriminatory/retaliatory 	conduct 	by 	the 	University 	have
occurred 	"since the original 	charge was 	filed." 	However, 	after
comparing the 	latest 	allegations with those 	in the 	original,
first and 	second amended charges, 	it 	is 	apparent that the third
amended 	charge 	merely 	reasserts 	several 	allegations 	contained 	in
the original charge. 	Specifically, 	allegations numbered 4, 	5, 	6,
7, 	8, 	10, 	11, 	12, 	14, 20, 	22 and 38 appear to allege adverse
actions 	which were 	contained 	in or related to 	the 	original
charge. 	Thus, 	it is clear those allegations could not have
occurred 	"since 	the original 	charge was 	filed." 	(Emphasis 	added.)
9The 	regional 	attorney 	also 	found 	that Jenkins 	did 	not
request 	arbitration of 	grievances 	and 	failed 	to present
sufficient 	information 	demonstrating 	futility.
6

appear[s] 	to raise new discriminatory/
retaliatory 	conduct 	not 	found within 	the 	original
charge, 	or which appear[s] 	to be unrelated to the
initial charge.
(Emphasis 	added.)
Because 	of 	the use of 	the word 	"or," 	the 	above 	statement 	could be
interpreted as 	dismissing Jenkins' 	new allegations 	on two
additional but distinct grounds; 	i.e., 	that they 	(1) 	were not
found within the original 	charge; 	and 	(2) 	were unrelated to 	the
initial 	charge.
New allegations may not, 	however, 	be dismissed merely
because 	they 	are 	"not 	found within the 	original 	charge." 	Rather,
new 	factual 	allegations 	unrelated 	to 	the 	original 	charge 	may be
used 	to 	support 	an entirely new charge, 	provided the 	new
allegations 	describe 	conduct which 	occurred within 	six 	months 	of
the date of 	the 	new charge. 	(Riverside 	Unified 	School 	District
(1985) 	PERB Decision No. 	553.)
In the present case, 	Jenkins 	filed his 	third amended charge
on June 	26, 	1990 and appears to 	state 	several 	new allegations 	of
discriminatory conduct by the University. 	However, 	as 	noted 	in
the regional 	attorney's 	dismissal 	letter, 	Jenkins 	failed to
provide 	any 	dates 	indicating whether 	the 	newly 	alleged 	conduct
occurred before or after December 25, 	1989 and, 	further, 	failed
to 	describe 	how the 	new allegations were 	related 	to 	the 	original
charge, 	if at all.10 Accordingly, 	the new allegations may not be
1010 Many of Jenkins' 	3 9 allegations are 	stated in such general
terms 	that 	it 	is 	impossible 	to discern when they occurred.
Specifically, 	Jenkins 	failed to provide 	sufficient 	information to
determine when the 	following 	alleged 	adverse 	actions 	occurred:
allegation numbers 2, 3, 	14, 15, 16, 17, 18, 19, 21, 23, 24, 25,
7

used 	to 	support 	a new charge because 	it 	is 	not 	clear they
describe conduct occurring after December 25, 	1989. 	Further,
since 	the 	new allegations 	are 	not 	alleged 	to have 	occurred within
six months 	of 	the original 	charge 	and Jenkins 	has 	not 	identified
how the 	new allegations 	are related to the original 	charge, 	the
new allegations 	cannot be used 	to 	support 	the 	original 	charge
under the relation back doctrine. 	(Regents 	of 	the University of
California 	(UC-AFT) 	(1990) 	PERB Decision No. 	826-H, p. 	6; 	Regents
of the University of California 	(1987) 	PERB Decision No. 	640-H,
p. 	15; 	cf., 	Burbank Unified School District 	(1986) 	PERB Decision
No. 	589; 	Monrovia Unified School District 	(1984) 	PERB Decision
No. 	460.) 	Therefore, 	the new allegations are insufficient to
establish a prima 	facie 	case 	of discrimination or retaliation.
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37.
In addition to the 	separately numbered allegations, 	Jenkins
further 	alleged:
CSU manager, 	John Sturgeon, 	instituted a set
of 	"work rules" 	which was 	for disparate
impact 	against 	employees 	who participated 	in
Union activities. 	Mr. 	Sturgeon further
stated in a meeting that, 	"I 	can relax these
rules 	or make 	them more 	stringent 	based 	on
whether grievances 	are 	filed."
These 	statements 	also 	fail 	to 	establish a prima 	facie 	case
of 	discrimination/retaliation.11 PERB 	Regulation 	3261512
provides, 	in pertinent part, 	that a charge alleging an unfair
11Even if 	these allegations were 	sufficient 	to 	establish 	a
prima 	facie case, 	as previously stated, 	Article V of the
collective 	bargaining agreement would 	require 	that 	the 	charge 	be
deferred 	to 	arbitration.
12PERB 	Regulations 	are 	codified at California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
88

practice must 	contain 	"(5) 	A 	clear 	and concise 	statement 	of 	the
facts 	and 	conduct 	alleged to 	constitute 	an unfair practice." 	The
above 	allegation 	fails 	to 	satisfy 	this 	requirement 	because
Jenkins 	does 	not 	identify when the rules were 	instituted, 	what
specific 	rules were enforced, 	what union activity(s) 	the rules
were 	instituted 	in response to, 	and when the 	statements 	by
Sturgeon were allegedly made. 	The allegation is, 	therefore,
dismissed.
Finally, 	PERB Regulation 32635(b) 	states:
Unless 	good cause 	is 	shown, 	a charging party
may 	not present 	on appeal 	new charge
allegations 	or new 	supporting 	evidence.
Jenkins 	has 	failed to 	allege any 	facts 	that would 	satisfy
the good cause 	standard. 	Accordingly, 	the additional 	information
contained 	in Jenkins' 	appeal 	identifying when previously alleged
conduct 	occurred 	or 	describing 	new 	conduct 	not previously 	alleged
may not 	be 	considered when determining whether 	a prima 	facia 	case
has 	been 	stated.
ORDER
For the reasons 	stated above, 	the Board DENIES Jenkins'
appeal 	and AFFIRMS 	the regional 	attorney's 	dismissal 	in Case 	No.
LA-CE-265-H, 	WITHOUT LEAVE TO AMEND.
Chairperson Hesse 	and Member Cunningham 	joined 	in this 	Decision.
9
9

PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
July 25, 	1990
Willie 	Jenkins
Re: 	Jenkins v. 	California State University
Unfair Practice Charge No. 	LA-CE-265-H, 	Third Amended Charge
DISMISSAL 	OF 	CHARGE AND 	REFUSAL TO 	ISSUE 	COMPLAINT
Dear Mr. 	Jenkins:
In my warning 	letter to you dated June 	12, 	1990, 	attached hereto,
I 	stated to you 	in part, 	that the 	Second Amended Charge 	failed 	to
state 	a prima 	facie 	case 	of discrimination.1 You were 	given
until June 	19, 	1990 to withdraw the charge or file a third
amended charge. 	On June 	19, 	1990, 	I granted you a one week
extension to June 26, 	1990. 	On June 26, 	1990, 	I received your
"3rd Amendment" 	(appears 	to be 	a third amended charge, 	replacing
the 	second amended charge). 	The third amended charge 	alleges 	in
part 	that 	California 	State 	University 	(University) 	unlawfully
retaliated/discriminated 	against you 	for your 	union 	activity 	by
changing your 	job title, 	duty responsibilities, 	and through all
the 	allegations 	in the charge.
21
The 	third 	amended 	charge 	alleges 	essentially 	the 	following:
1. 	Wrongful 	suspension and termination beginning on 	11 	May
1990 	for misconduct.
2. 	Many 	letters 	of 	reprimand 	for 	self 	serving purposes.
1The 	second 	amended 	charge 	alleges 	that 	you were
discriminatorily demoted 	from your position 	as 	Mailroom
Supervisor 	I 	(or Mail Service Supervisor) 	to mailroom 	leadperson.
This 	conduct 	is 	alleged to violate Article 	1 	through 	6.5 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA).
2Although you 	claim that HEERA Article 	1 	through 	6.5 	and 	the
collective bargaining agreement 	(Agreement) 	between the parties,
Articles 	16.7, 	16.12 and 5.14, 	have been violated, 	it appears
that 	the basis 	of 	your charge 	is 	that 	the 	University has
unlawfully 	discriminated 	against 	you 	by 	its 	conduct.
Accordingly, 	this 	charge will be treated as 	if 	it alleged 	a
violation of 	section 3571(a).

Page 	2
3. 	Retaliation by suspension for 	15 	days.
4. 	Unlawful 	change of 	my 	job title under HEERA Article
6.5, 	Section 	3506.3 	from mailroom 	supervisor to
mailroom 	leadperson.
5. 	Unlawful 	change of my 	job duties.
6. 	Refused or 	failed 	to 	give 	the 	Union 	15 	days 	notice 	in
writing 	before 	changing 	my 	job 	title 	as 	required 	by
CSEA/CSU contract 	16.12.
7. 	Refused or 	failed 	to 	give 	me 	my 	7-days 	notice before
altering 	my 	job description which 	is 	required by
CSEA/CSU 	contract 	16.7.
8. 	Under 	fraud and deceit 	changed 	my 	duty 	title 	and 	job
description 	and 	through 	dishonesty 	claimed 	no 	changes
had been made 	except 	clarification.
9. 	John 	Sturgeon threatened 	and 	carried 	out 	his 	threat
that 	he 	could 	make 	it 	easy 	or 	hard 	for 	an 	employee
depending 	on how many 	grievances 	they 	filed.
10. 	By ordering a management 	audit 	firm to do 	a mailroom
review that 	set 	a precedent 	at 	the C O .
11. 	By publicizing the 	review to C O . 	staff 	to 	solicit
complaints which 	set 	a precedent.
12. 	The 	Personnel 	staff 	conspired with managers 	to design
and plot 	a 	scheme 	to 	insure 	the 	management 	audit 	team
would 	come 	up with 	the 	finding 	they wanted.
13. 	Concealed 	a mailroom 	survey by 	hand-picked 	staff 	to
prevent 	me from. seeing 	the 	result which 	must 	have 	been
in my 	favor 	or 	at 	least 	not what 	they 	expected.
14. 	Suspended me 	for retaliation purposes 	because 	of 	Union
activity.
15. 	Jackie Baird, 	my immediate 	supervisor, 	made untrue
statements against me.
16. 	Ms. 	Baird refused to give me proper 	computer
instruction and 	refused my 	coworker 	to help me 	so 	as 	to
make 	it 	appear that 	I 	was 	refusing 	or 	failing 	to 	do 	my
job.
17. 	Other actions were taken against me 	such as, 	close
supervision, 	letters written against me 	for 	self-
serving purposes, 	and 	sabotage of 	my 	effort 	to do my
job.
18. 	I 	am denied due process 	of 	law by CSU management.
19. 	CSU management required me to wait up to 	3 	hours 	in
Personnel 	for 	harassment 	and 	oppression.
20. 	Personnel manager admonished me 	in 	front 	of 	Personnel
staff, 	and Jackie 	Baird and 	Pam Chapin 	have 	admonished
me 	in 	front 	of 	other 	staff 	for 	embarrassment purposes.
Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 3
21. 	When the minutest mistake 	is 	made by me, 	excessive 	time
is 	spent backtracking, 	blowing 	this 	completely out 	of
proportion 	in order 	to 	discredit 	me.
22. 	Divide and 	conquer 	tactics 	are 	continuously used
between me 	and 	the 	staff 	I 	once 	supervised.
23. 	I was 	constantly harassed over my medical appointments.
24. 	Management has 	refused 	to 	investigate 	my 	allegations
against other 	managers.
25. 	My 	flex-time was 	refused, 	yet 	flex-time 	requests 	were
being 	solicited 	from 	others.
26. 	Receiving 	a biased performance 	evaluation 	from
management 	as 	retaliation during 	this 	period.
27. 	Refused to 	allow me 	to work because my doctor 	suggested
I 	do 	not work 	for my present 	supervisor because 	of
conflict 	and 	management 	refused 	to 	investigate 	but
forced me 	to 	get 	doctor 	to 	change 	his 	recommendation.
28. 	Refused to 	remove 	me 	from under present 	supervisor 	for
the 	purpose 	of 	oppression 	and 	to 	allow her 	to build a
case 	against me 	for dismissal.
29. 	Solicited 	complaints 	against 	me 	from 	other 	employees
and 	refused 	to 	allow me 	to 	see 	them 	and 	kept 	them 	in 	a
secret 	file 	in 	violation 	of 	Union 	contract.
30. 	Refused to 	send me 	to 	a 	SCIF 	doctor 	after 	an 	industrial
injury.
31. 	Refused to provide me with 	IDL to which 	I 	am, 	entitled.
32. 	Attempted to 	force me 	to accept NDI 	instead of 	IDL.
33. 	Forced me 	to work with 	a 	severe back 	injury.
34. 	Refused to 	investigate 	my 	industrial 	injury 	in 	good
faith.
35. 	Required me to bring 	in medical 	excuse 	if 	I 	am out 	for
one 	day even though 	I 	had 	medical 	excused 	(sic) 	from my
doctor prior 	to 	appointment.
36. 	Refusing 	to give 	me 	my yearly performance 	evaluation as
required by 	Union 	contract.
37. 	Baird using oppressive 	management 	style 	by 	requiring 	me
to 	tell her whenever 	I 	am going to be 	out 	of 	the
mailroom 	for more 	than 	10 	minutes 	when 	the
responsibility 	of 	my 	job 	requires 	me 	to 	be 	in and 	out
of 	the 	mailroom 	numerous 	times 	during 	the 	day. 	Baird's
oppressive 	actions 	are 	not 	limited 	to 	this 	complaint.
38. 	By using my attendance as 	a weapon.
39. 	From January 	15, 	1990 	to present while on disability
leave Baird 	refused 	to 	forward 	my 	mail.
My 	investigation 	and 	the 	charge 	also 	revealed 	additional
information. 	During the period, 	April 	1986 	to November 2, 	1989,
you 	filed 	approximately 	seven 	grievances. 	You provided me with

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 	4
five written grievances 	relating to this 	matter, 	filed around
September 	1, 	1989, 	alleging violations of various Articles 	of the
contract, 	Article XVI, 	sections 	16.12 	(now 17.12) 	and 	16.7 	(now
17.7), Article V, 	section 5.14, 	and Article VII, 	section 7.6.
The 	grievances 	indicated 	that 	your 	CSEA 	representative 	was
Richard 	Funderburg.
During our telephone 	conversation on or about June 	28, 	1990, 	you
advised me 	in part that Dr. 	Herbert Carter, 	Executive Vice
Chancellor 	stopped 	or denied your 	grievances 	and 	that 	you have
denial 	letters. 	You 	indicated you did 	not 	ask the 	Union to 	take
your 	grievances 	to 	Level V, 	binding 	arbitration. 	You believe 	the
union told the 	University 	to 	change 	your 	title 	and 	you believe
the union wanted you to drop the 	grievances 	and/or would 	not
represent you. 	Your grievances, 	which were denied, 	were not
elevated above 	Level 	III. 	You 	saw no 	need 	to 	elevate 	them 	to
Level 	IV 	(Office of 	the Chancellor), 	as 	they had been
automatically denied 	and 	those 	persons 	denying 	the 	grievances
worked 	for Dr. 	Carter. 	You 	indicated you had 	filed 	eight or nine
grievances 	and 	that 	the 	allegations 	in 	the 	third 	amended 	charge
had been grieved by 	you.
The union, 	through Mr. 	Richard G. 	Funderburg, 	indicated to me on
or about June 	28, 	19990 	that 	it assisted you on the 	original
grievance 	involving 	the 	change 	in title. 	It would have
represented you 	further 	but 	you 	refused 	their 	advice, 	and did 	not
give 	the Union an opportunity to represent you. 	Further, 	you
alone 	dropped your 	grievances 	at 	or 	around 	the 	third 	level.
Your position was 	part 	of 	a 	bargaining 	unit 	exclusively
represented 	by 	CSEA. 	CSEA 	and 	the 	University 	are 	parties 	to 	an
agreement with the effective date of June 	1, 	1989 	through
May 31, 	1992.
Article 	1, 	section 	7.1 	of 	the Agreement 	states,
The term 	grievance' 	as 	used 	in this Article
refers 	to 	the 	filed 	allegation 	by 	a 	grievant
that there has 	been a violation,
misapplication, 	or misinterpretation of 	a
specific term(s) 	of this Agreement.
3It has 	been 	impossible 	to 	reach 	you 	as 	you 	no 	longer 	have 	a
telephone or a place where 	I 	can leave you a message to 	call me.

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 	5
Article 7, 	section 7.2 defines a grievant, 	in part, 	as a
permanent 	employee who alleges,
that 	he/she has 	been directly wronged 	by 	a
violation, misapplication, 	or a
misinterpretation of a 	specific 	term(s) 	of
this Agreement.
Article 	7, 	section 7.3 	defines 	a representative 	as 	a,
Union 	Representative 	or 	an 	employee who 	at
the grievants' 	request may be present at 	all
levels 	thorough Level 	IV. 	Representation at
Level V 	shall 	be by 	the 	Union only.
Article VII, 	sections 7.16 and 7.22 provide, 	in part, 	for final
and binding 	arbitration and 	that 	if 	the 	grievance 	has 	not 	been
settled at Level 	IV, 	the Union alone, 	may request arbitration.
Article V, 	section 	5.14 provides 	that 	"An 	employee 	shall 	not
suffer reprisals 	for participation 	in 	union activities."
Article VII, 	section 	7.6 	provides 	that 	the 	employee 	shall 	attempt
to 	resolve 	the potential 	grievance 	informally with the 	immediate
non-bargaining 	unit 	supervisor.
Article XVII, 	section 17.7 provides, 	in part, 	that if a position
description will be altered, 	the employee 	shall 	receive a copy of
the 	altered position description at 	least 	seven 	days prior 	to 	its
effective date.
Article XVII, 	section 17.12 provides, 	in part, 	that when the
University 	determines 	that 	a 	study 	to 	develop 	new 	classifications
or to revise current 	classifications 	is 	necessary, 	the 	University
shall 	notify 	the 	union. 	The union may 	then request 	a meeting
with the 	University to discuss 	the 	classification 	study, 	within
fifteen 	(15) 	days 	of being notified.
Based 	on the 	facts 	stated 	above 	and 	PERB 	Regulation 	22620(b)(5)
(California Administrative Code, 	title 8, 	section 32650(b)(5)),
this 	charge 	must 	be dismissed 	and deferred 	to 	arbitration under
the Agreement.
PERB 	Regulation 	32620(b)(5) 	requires 	the board 	agent processing
the 	charge to:

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 6
Dismiss 	the 	charge 	or 	any part 	thereof 	as
provided in section 32630 if 	. 	. 	. 	it is
determined that a 	complaint may 	not be 	issued
in light of Government Code 	sections 	3514.5,
3541.5 	or 	3563.2 	or because 	a 	dispute arising
under 	HEERA is 	subject 	to 	final 	and binding
arbitration.
In Dry Creek Joint 	Elementary 	School 	District 	(1980) 	PERB 	Order
Mo. 	Ad-8la, 	the Board explained that:
[W]hile 	there 	is 	no 	statutory deferral
requirement 	imposed 	on 	the 	National 	Labor
Relations Board 	(hereafter NLRB), 	that agency
has 	voluntarily 	adopted 	such 	a 	policy both
with 	regard to 	post-arbitral 	and 	pre-arbitral
award 	situations. 	(Footnote 	omitted.) 	EERA
section 3541.5(a) 	essentially codifies 	the
policy 	developed by 	the 	NLRB 	regarding
deferral 	to arbitration proceedings 	and
awards. 	It is appropriate, 	therefore, 	to
look 	for guidance to the private 	sector.
(Footnote to Fire 	Fighters 	Union v. 	City 	of
Vallejo 	(1974) 	12 Cal.3d 608.)
Although 	this 	case 	arose 	under 	the 	Educational 	Employment
Relations Act 	(EERA), 	and was overruled on statutory grounds, 	the
rationale 	is 	still 	applicable 	to cases 	under HEERA. 	Regents 	of
the University of California 	(1983) 	PERB Order No. 	Ad-139-H;
California State 	University 	(1984) 	PERB Decision No. 	392-H.
In Collyer Insulated Wire 	192 	NLRB 	837, 	77 	LRRM 	1931 	(1971) 	and
subsequent 	cases, 	the NLRB articulated 	standards 	under which
deferral 	is 	appropriate 	in prearbitral 	situations. 	These
requirements 	are: 	(1) 	the dispute must arise within a 	stable
collective bargaining relationship where 	there 	is 	no 	enmity 	by
the respondent toward the union; 	(2) 	the 	respondent must be 	ready
and willing 	to proceed to 	arbitration and 	must waive 	contract-
based procedural defenses; 	and 	(3) 	the 	contract and 	its 	meaning
must 	lie 	at 	the 	center of the dispute.
These standards 	are met with respect to this case. 	First, 	no
evidence 	has 	been produced 	to 	indicate 	that 	the 	Respondent 	and
the 	Union are 	not 	operating within 	a 	stable 	collective 	bargaining
relationship. 	Second, 	by the attached 	letter from 	its
representative, 	William B. 	Haughton, 	Esq. 	dated June 28, 	1990,
the 	Respondent 	has 	indicated 	its 	willingness 	to proceed 	to

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 7
arbitration and to waive all procedural defenses. 	Finally, 	the
issue 	raised by this 	charge 	that 	the 	Respondent has 	unlawfully
discriminated 	against you 	in violation of 	section 	3571(a)
directly 	involves 	an 	interpretation of Articles 	of 	the Agreement
including Article V, 	section 5.14, 	Article XVII, 	sections 	17.7
and 	17.12, 	and Article VII, 	section 7.6.
Although you have 	argued that 	this 	case 	is 	not 	appropriate 	for
arbitration based upon your disagreement with, 	distrust 	of, 	or
dislike 	for the 	Union, 	you have 	not presented 	enough 	information
to 	show 	futility and/or 	that 	the 	Union 	expressly refused 	to
arbitrate your grievances, 	had 	they 	gotten to the 	appropriate
level. 	See State of California 	(Dept, 	of Corrections)
(Schwartzman) 	(1986) 	PERB Decision No. 	561.
Accordingly, 	this 	charge 	must be 	deferred 	to 	arbitration 	and will
be dismissed without 	leave 	to amend. 	Such dismissal 	is 	without
prejudice to the Charging Party's 	right, 	after arbitration, 	to
seek 	a 	repugnancy review by 	PERB 	of 	the 	arbitrator's 	decision
under the 	Dry Creek 	criteria. 	See 	PERB 	Regulation 	32661
(California Administrative Code, 	title 8, 	section 32661; 	Los
-Angeles Unified School District 	(1982) 	PERB Decision No. 	218; 	Dry
Creek Joint Elementary School 	District, 	supra.
-
In addition, 	many 	of the allegations 	of 	adverse actions 	attached
to the third amended charge at numbers 	1 	through 	39, 	pages 	2 	and
3, 	are 	also dismissed as 	falling 	outside 	the 	six 	month 	statute 	of
limitations period, 	HEERA 	section 	3563.2(a) 	(applies 	to all 	of
these adverse actions except 4, 	5, 	6, 	7, 	10, 	11, 	12, 	13, 	15, 	22,
and 	39). 	The original 	charge was 	filed on or about November 	7,
1989. 	The third amended charge was 	filed on June 	25, 	1990, 	and
many 	of 	these 	adverse actions 	appear to 	raise new
discriminatory/retaliatory 	conduct 	not 	found 	within 	the 	original
charge, 	or which appear to be 	unrelated 	to the 	initial 	charge.
Since, 	in most cases, 	you have 	not provided dates 	or alleged
whether the 	adverse actions 	occurred on December 	25, 	1989 	or
thereafter, 	the 	aforementioned 	allegations 	are dismissed 	as
untimely. 	See The 	Regents 	of 	the 	University of 	California
(1990) 	PERB Decision No. 	826-H.
This 	charge 	is 	also dismissed 	for 	the reasons 	indicated 	in the
attached warning 	letter dated June 	12, 	1990, 	to the extent your
third 	amended 	charge 	reasserts 	allegations 	contained 	in 	your
second 	amended 	charge.

Dismissal 	of 	Charge
LA-CE-265-H
July 25, 	1990
Page 	8
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 	(California
Administrative Code, 	title 8, 	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 	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 	(California
Administrative Code, 	title 8, 	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 California Administrative Code,
title 	8, 	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 	(California
Administrative Code, 	title 8, 	section 32132).

D i s m i s s a l 	of 	Charge
LA-CE-265-H
July 	25, 	1990
Page 	9
F i n a l 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Marc S. 	Hurwitz
Regional 	Attorney
Attachments
cc: William B. 	Haughton, 	Esq.

State 	of 	California 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3330 Wilshire Boulevard. Suite 650
os 	Angeles, CA 	90010-2334
(213)736 3127
L
June 	12, 	1990
Willie 	Jenkins
Re: 	Jenkins v. 	California State University
Unfair Practice Charge No. 	LA-CE-265-H
Second Amended 	Charge
WARNING 	LETTER
Dear Mr. 	Jenkins:
The 	above-referenced 	second 	amended 	charge 	alleges 	that 	you were
discriminatorily 	demoted 	from your position as 	Mailroom
Supervisor I 	(or Mail Service Supervisor 	I) 	to mailroom
leadperson. 	This 	conduct is 	alleged to 	violate Article 	1
through 	6.5 	of 	the 	Higher 	Education 	Employer-Employee 	Relations
Act 	(HEERA).
My 	investigation revealed 	the 	following 	information.1
Mr. 	Jenkins 	has worked 	in the mailroom 	for 	California 	State
University 	(University) 	for approximately 	13 years, 	most recently
as 	a 	Mailroom Supervisor I. 	On August 	8, 	1989 he was 	officially
notified he would be 	reclassified as 	a 	mailroom 	leadperson. 	This
reclassification was 	the 	result of 	a 	June 	1989 	study 	of 	the
mailroom 	conducted by a private 	consulting 	firm. 	One 	of 	the
consulting 	firm's 	recommendations was 	to 	establish 	a 	"working
supervisor" 	in the mailroom. 	As a result, 	the University decided
to retitle Mr. 	Jenkins' 	position as 	mailroom leadperson without
any 	substantive 	change 	in assigned duties 	and no 	change 	in pay.
This 	description was 	reviewed by CSEA 	representative 	Rick
Funderburg. 	Members 	of 	the 	mailroom 	staff 	received 	a memorandum
dated August 	8 	which 	requested them 	to 	meet with 	an 	administrator
to discuss 	the 	job descriptions. 	Mr. 	Jenkins was 	the only member
of 	the 	mailroom to decline this 	invitation.
On August 	9 Mr. 	Jenkins met with Charlie Fernandez, 	the Manager
of Personnel 	Services, 	for the University to discuss 	the change
in job title. 	During this discussion Mr. 	Jenkins 	indicated that
he wanted 	an 	apology 	because 	the 	contract 	had been 	violated when
1On May 	10, 	1990 	I 	called and 	left a message 	for you at your
work telephone 	number. 	The 	other two 	home telephone 	numbers 	I
had 	for 	you were 	no 	longer 	in 	service. 	You did 	not 	return my
call. 	On June 	8 	I 	attempted to contact you at work and was 	told
you were 	no 	longer 	employed 	there.

Warning 	Letter
Willie 	Jenkins
LA-CE-265-H
Page 	2
he was 	not provided 	seven days 	written notice 	of 	the 	change 	in
job title.
On August 	11 	Mr. 	Jenkins 	met with Mr. 	Funderburg and was 	later
joined by Mr. 	Hernandez. 	After a 	lengthy discussion, 	it became
apparent 	that Mr. 	Jenkins would 	not be 	satisfied with 	any 	of 	the
proposed 	solutions 	and 	the meeting 	ended. 	Thereafter Mr. 	Jenkins
filed 	a 	grievance.
Based 	on the 	facts 	described above, 	this 	charge does 	not 	state 	a
prima 	facie 	violation of 	the 	HEERA 	for 	the 	reasons 	which 	follow.
Although 	you claim that 	HEERA Article 	1 	through 	6.5 	has 	been
violated, 	it appears 	that the 	basis 	of your charge 	is 	that 	the
University 	has 	unlawfully 	discriminated 	against 	you 	by 	demoting
you 	from 	Mailroom 	Supervisor 	I 	to 	mailroom 	leadperson.
Accordingly, 	this 	charge will be 	treated as 	if 	it alleged a
violation of 	section 3571(a).
You 	assert 	in the 	charge 	that 	your position as Mailroom
Supervisor 	I 	is 	supervisory under 	the definition of 	HEERA.'Accepting 	this 	as 	true 	(San 	Juan 	Unified 	School 	District 	(1977)
EERB Decision No. 	12), 	it would appear that your charge 	should be
dismissed. 	HEERA section 3580 provides:
Except 	as 	provided 	by 	this 	article,
supervisory 	employees 	shall 	not 	have 	the
rights, 	or be 	covered by, 	any provision or
definition 	established 	by 	this 	chapter.
Since 	your 	right 	to 	file 	an unfair practice 	charge 	is 	established
in 	section 	3563.2, 	supervisory 	employees 	do 	not have 	the 	right 	to
file 	an 	unfair practice 	charge 	to 	remedy 	violations 	of 	their
supervisory rights. 	This 	position has 	been 	specifically 	upheld
by the 	Board 	in the State of 	California. 	Department 	of 	Health
(1979) 	PERB Decision No. 	86-S. 	In that case, 	the Board dismissed
an 	unfair practice 	charge 	filed by 	a 	supervisor 	under 	the 	Ralph
Dills 	Act 	which 	contains 	language 	identical 	to 	that 	contained 	in
HEERA.
2The 	University asserts 	that your position, 	Mail 	Service
Supervisor I 	is 	in bargaining unit 	7 which 	is 	exclusively
represented by CSEA. 	This 	is 	confirmed 	by Appendix A of 	the 	most
recent 	collective bargaining 	agreement 	between CSEA 	and 	the
University effective June 	1, 	1989 through May 31, 	1992, 	which
lists 	the position 	in the bargaining unit.

Warning 	Letter
Willie 	Jenkins
LA-CE-265-H
Page 3
Assuming 	for 	sake 	of 	argument that your position 	is 	not
supervisory, 	then your charge must 	state 	the 	elements 	of 	a prima
facie case of discrimination 	in order 	for a 	complaint 	to 	issue.
To demonstrate 	a violation of 	HEERA 	section 	3571(a), 	the charging
party must 	show that: 	(1) 	the 	employee exercised rights 	under
the EERA, 	(2) 	the employer had knowledge 	of the 	exercise of 	those
rights, 	and 	(3) 	the 	employer 	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. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although your 	charge 	alleges 	in very 	general 	terms 	that you have
engaged 	in protected activity, 	it does 	not 	specifically describe
these activities. 	In addition, 	you have not indicated that your
demotion 	constitutes 	adverse 	action by the 	employer. 	There
appears 	to be 	no change 	in salary or working conditions, 	but
rather only 	a 	change 	in title. 	This 	may be 	insufficient 	to
constitute adverse 	action. 	Palo Verde 	Unified 	School 	District
(1988) 	PERB Decision No. 	689. 	Finally, 	there 	is no evidence that
the 	University's 	decision to demote 	you was 	caused by 	or because
of previous 	protected activity. 	Without 	clear 	facts which
support 	all 	of 	the 	elements of prima 	facie 	case, 	a 	complaint may
not 	issue.
For these reasons, 	the 	charge 	as presently written does 	not 	state
a prima 	facie 	case. 	If there are any factual 	inaccuracies 	in
this 	letter 	or 	any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	above, 	please 	amend 	the 	charge
accordingly. 	The 	amended 	charge 	should be prepared 	on a 	standard
PERB 	unfair 	practice 	charge 	form 	clearly 	labeled 	Third 	Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish to make,
and must 	be 	signed 	under penalty of 	perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served on the 	respondent 	and

Warning 	Letter
Willie 	Jenkins
LA-CE-265-H
Page 4
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not receive 	an 	amended charge 	or withdrawal 	from you 	before 	June
19 f 	1990. 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
MSH:eb

THE CALIFORNIA STATE UNIVERSITY 	STATE
BAKERWULD . CHKO . DOMINGUEZ BALS . FRESNO . FULLERTON . NOIS ARD . HUMBOLDT . LONG WARN
SACRAMENTO . SAN BERNARDINO . SAN DIEGO .	SAN FRANCISCO . SAN JOSE . SAN LUIS OBISPO 	SAN MARCOS . SONOMA . $TAMELAIS
Z VENTHE
OFFICE OF GENERAL COUNSEL
TELEPHONE:	TUDHOHt: 	(213) 	590-5629
VITA
TELEFAX. (213)899-6040
8-435-6040
June 	28, 	1990
By DHL Worldwide Express
-
Marc 	S. 	Hurwitz
Regional 	Attorney
Public 	Employment 	Relations 	Board
3530 	Wilshire Blvd., 	Suite 	650
Los Angeles, 	California 	90010-2334
Re: 	Unfair 	Practice Charge No. 	LA-CE-265-H 	- 	Willie 	Jenkins 	v.
California 	State University; 	Our 	File 	No. 	L89-1490
Dear Mark:
We 	have 	recently been 	served with 	a 	copy 	of 	the 	third 	amended
unfair 	practice 	charge 	in this matter.
Several 	of 	the 	allegations 	therein 	refer 	to 	pending 	contractual
grievances 	as well 	as 	contract 	violations. 	It 	is CSU's
position 	that 	all 	of 	these 	matters 	should 	be 	dismissed 	by 	PERB
and deferred to 	binding 	arbitration. 	Under 	the Collyer
doctrine, 	all 	of 	the 	requirements 	for 	deferral 	exist 	in 	this
case.
If 	these 	allegations 	are 	dismissed 	by PERB 	and 	deferred 	to
arbitration, 	CSU will waive 	its 	procedural 	defenses 	to
arbitrating 	any 	of 	these matters 	including 	timeliness.
Sincerely,
MAYER 	CHAPMAN
Vice 	Chancellor
and 	General 	Counsel
William B HaughtonWilliam B. 	Haughton
Senior 	Labor 	Relations 	Counsel
WBH:mks:0114E
OFF OFFICE OF THE CHANCELLOR • 400 GOLDEN SHORE. LONG BLAH!. (A 	INFORMATION: (213)590-5506
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