Regents of the University of California (Alavarez) (PERB 0983H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LUIS ALONSO ALVAREZ,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-346-H
PERB Decision No. 	983-H
March 22, 	1993
Appearances: 	Mary G. 	Higgins, 	for Luis Alonso Alvarez; 	Edward M.
Opton, 	Jr., 	University Counsel, 	for Regents of the University of
California.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on an appeal 	filed by Luis Alonso Alvarez
(Alvarez), 	to the Board agent's dismissal 	(attached hereto) 	of
his unfair practice 	charge. 	The charge alleged that 	the Regents
of 	the University of 	California violated sections 	3571(b),
3571.l(e), 	3578 and 3579 	of the Higher Education Employer-
Employee 	Relations 	Act 	(HEERA)1 by negotiating 	and 	reaching
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references are 	to 	the
Government Code. 	Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
Section 3571.1 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee

agreement with the American Federation of 	State, 	County
and Municipal Employees, 	Council 10 	(AFSCME), 	exclusive
representative 	for 	the 	systemwide 	clerical 	and patient
care 	technical bargaining units, 	to transfer certain job
classifications 	(classes) 	from the 	clerical 	to the patient
care technical unit. 	Alvarez 	is an Admitting Worker, 	one of
the 	classes 	transferred.
organization to:
(e) 	Fail 	to represent 	fairly and impartially
all 	the employees 	in the unit 	for which it 	is
the 	exclusive 	representative.
Section 3578 provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative
shall 	represent all 	employees 	in the unit,
fairly and 	impartially. 	A breach of 	this
duty 	shall 	be 	deemed 	to have 	occurred 	if
the 	employee 	organization's 	conduct 	in
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.
Section 3579 	states, 	in relevant part:
(a) 	In each case where 	the appropriateness
of a unit 	is an issue, 	in determining an
appropriate unit, 	the board shall 	take 	into
consideration all 	of 	the 	following criteria:
[criteria omitted].
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
de novo2 and, 	finding 	the dismissal 	to be 	free of prejudicial
error, 	adopts 	it as 	the decision of 	the Board itself.3
2The 	substantive 	record 	consists 	of 	the warning 	and
dismissal letters, 	charge, 	amended charge, 	appeal with attachment
and opposition 	to appeal.
3Alvarez 	has 	also 	filed 	charges 	of unlawful 	conduct 	(HEERA,
secs. 	3578 and 3571.l(e)) 	against AFSCME 	(Case No. 	SF-CO-24-H).
22

The unfair practice charge 	in Case No. 	SF-CE-346-H is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Hesse and Caffrey joined 	in 	this Decision.
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STATE .OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350	
PERS
October 1, 	1992
Mary G. 	Higgins
Re: 	DISMISSAL OF 	UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Luis Alonzo Alvarez v. 	The Regents 	of the University of
California. 	Unfair Practice Charge No. 	SF-CE-346-H
The 	above-referenced unfair practice 	charge, 	filed on June 	2,
1992, 	alleges that the Regents of the University of California
(Regents) 	agreed to the transfer of 	classifications 	from the
Clerical 	bargaining unit 	to 	the 	Patient 	Care 	Technical 	bargaining
unit. 	This 	conduct 	is alleged to violate Government Code
sections 	3571(b) 	and 	3579 	of the Higher Education Employer-
Employee Relations Act 	(HEERA).
I 	indicated to you in my attached 	letter dated August 26, 	1992,
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. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case or withdrew it prior to
September 3, 	1992, 	the charge would be dismissed. 	I 	subsequently
granted you extensions 	of 	time 	to 	file 	an amended charge.
On September 30, 	1992, 	you filed an amended charge which 	states
that Mr. 	Alvarez believes 	that he has 	been disadvantaged by the
transfer of his 	classification to 	the 	Patient Care 	Technical
bargaining unit, 	and 	identifies 	specific 	contract provisions
which purport 	to 	confirm his 	perception. 	The amended charge
concludes 	by 	reiterating 	your 	contention that 	the 	harm 	to 	the
wages 	and working conditions 	of Mr. 	Alvarez 	is 	the result of
collusion between AFSCME 	and 	the 	Regents.
The 	issue of whether Mr. 	Alvarez was 	disadvantaged by the
transfer of 	his 	classification was 	not 	a 	matter which 	required
additional 	facts. 	No 	facts whatsoever were provided 	in 	support
of the allegation of 	collusion, 	nor were 	any 	facts 	or argument
submitted 	addressing 	the 	deficiencies 	noted 	in the warning
letter.
Therefore, 	I 	am dismissing the charge based on the 	facts 	and
reasons 	contained 	in my August 	26, 	1992, 	letter and the reasons
set 	forth above.

Dismissal, etc.
SF-CE-346-H
October 1, 	1992
Page 2
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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal, etc.
SF-CE-346-H
October 1, 	1992
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become 	final when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
Chee F mice	Cile,._ 	7M Ll	By
CHARLES F. 	McCLAMMA
Public 	Employment 	Relations 	Specialist
Attachment
cc: 	James Odell
d
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350
August 26, 	1992
Mary G. 	Higgins
Re: 	WARNING LETTER
Luis Alonzo Alvarez 	v. 	The Regents 	of 	the 	University of
California. 	Unfair Practice Charge No. 	SF-CE-346-H
Dear Ms. 	Higgins:
The above-referenced unfair practice 	charge, 	filed on June 	2,
1992, 	alleges that the Regents of the University of California
(Regents) 	agreed to 	the transfer of 	classifications 	from the
Clerical 	bargaining unit 	to 	the 	Patient Care Technical 	bargaining
unit. 	This 	conduct is alleged to violate Government Code
sections 	3571(b) 	and 	3579 	of the Higher Education Employer-
Employee Relations Act 	(HEERA).
My 	investigation revealed the 	following 	facts. 	Luis Alonzo
Alvarez 	is 	employed by the Regents 	at 	the 	University of
California at 	San Francisco as 	an admitting worker. 	His 	job
duties 	are predominantly clerical 	in nature, 	although he has
contact with hospital patients 	in the performance 	of 	these
duties.
On July 	11, 	1983, 	the American Federation of State, 	County and
Municipal 	Employees 	(AFSCME) 	was 	certified by PERB as 	the
exclusive 	representative of 	employees 	of 	the 	Regents 	in 	Unit 	#13
(Patient Care Technical). 	On July 12, 	1983, 	AFSCME was also
certified by PERB 	as 	the 	exclusive representative 	of 	employees 	of
the Regents 	in Unit #12 	(Clerical and Allied Services).
Employees 	in the 	classification of 	admitting worker were 	included
in Unit #12.
On April 	30, 	1992, 	AFSCME, 	through the Executive Director of
AFSCME 	Council 	10, 	concluded 	collective bargaining negotiations
with the Regents. 	A part 	of 	their tentative 	agreement provided
for the transfer of certain classifications, 	including that of
admitting worker, 	from Unit #12 	to Unit #13. 	Members 	of Unit #12
were neither consulted with, 	nor allowed 	to participate 	in the
process 	which 	led to 	the 	agreement 	to 	transfer 	classifications.
A ratification vote 	on the 	tentative 	agreement was 	scheduled 	for
May 26, 	1992, 	in which only AFSCME members within Unit #13 were
allowed to vote.
==-~- 	- 	--
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- - -
Warning 	Letter
SF-CE-346-H
August 26, 	1992
Page 2
On June 	9, 	1992, 	AFSCME Council 	10 	filed a unit modification
petition with PERB 	seeking approval 	of 	the 	aforementioned
transfer. 	The Regents concurred in the request. 	Therefore, 	on
June 	9, 	1992, 	the Regional Director of the PERB San Francisco
Regional 	Office 	issued a 	Unit 	Modification Order 	approving 	the
deletion 	of 	the 	identified 	classifications 	from 	the 	Clerical 	and
Allied 	Services 	Unit 	and 	their 	addition 	to 	the 	Patient 	Care
Technical 	Unit.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state 	a prima 	facie violation of 	the 	HEERA 	for the
reasons 	that 	follow.
In Hanford Joint Union School 	District 	(1978) 	PERB 	Decision No.
58, 	the Board noted that, 	although the right to 	file an unfair
practice- charge extends to any employee, 	employee organization,
or employer, 	the 	specific 	grounds which can be 	alleged 	are
limited. 	The 	Board went on to hold that a 	nonexclusive 	employee
organization may not file a 	section 3543.5(c)1 charge because to
do 	so would 	interfere with the right 	of 	the 	exclusive
representative to determine matters 	on which 	it decides 	to
negotiate.
In Oxnard School District 	(1988) 	PERB Decision No. 	667, 	the Board
extended 	the 	reasoning in Hanford to 	such 	claims 	filed by
individual employees as well. 	However, 	it went on to note the
following:
We 	emphasize 	that 	nothing 	in our decision
today 	shall 	be 	construed to 	limit 	the ability
of 	employees 	to pursue unfair practice
charges 	which 	assert 	individual 	rights 	under
the Act.
Mr. 	Alvarez 	alleges 	that the 	District violated Government Code
section 3571(b), 	which prohibits the denial 	"to employee
organizations 	rights 	guaranteed 	them by this 	chapter." 	On 	its
face, 	this provision provides 	a cause of action to 	employee
1This 	subsection of 	the 	Government Code provides 	as 	follows:
It 	shall 	be unlawful 	for a public 	school 	employer to do
any of 	the 	following:
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in good 	faith
with 	an 	exclusive 	representative.

organizations 	for a 	denial of 	rights 	granted to 	an 	employee
organization. 	However, 	it does 	not provide a cause of action to
an 	individual 	employee. 	To 	extend the right to 	an individual 	in
a 	case 	such as 	this 	would 	lead to 	the 	same 	kind of 	interference
which 	the 	Board 	sought to 	avoid 	in Hanford and Oxnard, 	namely,
interference with the 	right 	of 	an 	exclusive 	representative 	(in
this 	case, 	AFSCME) 	to determine matters on which it chooses 	to
negotiate.
Warning 	Letter
SF-CE-346-H
August 26, 	1992
Page 3
However, 	as 	suggested by the Board in Hanford. 	Mr. 	Alvarez does
have the right to assert his 	individual rights. 	In this 	case, 	he
has 	alleged that the Regents have 	interfered with his 	rights 	by
failing 	to 	allow him to vote or otherwise 	to 	consult with 	him
concerning whether he wished his 	classification 	to 	be 	transferred
to another bargaining unit. 	He alleges 	that the Regents 	have
violated Government Code 	section 	3579 	(HEERA Article 	6. 	Unit
Determinations), 	noting that the HEERA directs 	PERB to resolve
cases where the appropriateness of a unit is 	an issue.
In order to 	state a violation involving interference, 	the
charging party must demonstrate that the employer, 	by 	its
conduct, 	has 	caused at 	least 	slight harm to the 	guaranteed 	rights
of 	the employee. 	(Carlsbad Unified School 	District 	(1978) 	PERB
Dec. 	No. 	89.) 	The rights which Mr. 	Alvarez alleges have been
denied him by the Regents, 	namely, 	the right to vote and to be
consulted 	concerning the unit transfer of 	a 	classification, 	are
not rights 	that are granted to an employee by HEERA, 	and
therefore, 	they are not 	rights which could have been harmed 	or
denied by the Regents. 	Further, 	HEERA section 	3579 	imposes 	no
duty upon an employer, 	but rather imposes 	on PERB the duty to
consider 	the 	criteria 	listed 	in that 	section 	in determining 	an
appropriate unit. 	Such 	consideration by PERB occurs 	only when
raised as 	an issue by a party to a 	PERB proceeding.
PERB, 	through 	its 	regulations 	governing unit modifications
(sections 	32781 through 32786), 	has 	established procedures 	for
either 	an 	employer or 	an 	exclusive 	representative 	to 	raise 	unit
appropriateness 	issues 	involving 	changes 	to 	existing 	bargaining
units. 	However, 	a petition for unit modification may only be
filed by an employer or an exclusive representative, 	or both, 	and
need not be 	filed at all 	if 	they are 	in agreement. 	(PERB
Regulation 	32781.) 	An individual 	employee does 	not have 	standing
to 	file 	a 	unit 	modification petition 	(Riverside 	Unified 	School
District 	(1985) 	PERB Order No. 	Ad-148.), 	and cannot attempt to
accomplish 	the 	same 	result by 	filing 	an unfair practice 	charge.
(Riverside Unified School District 	(1985) 	PERB Dec. 	No. 	512.)
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 	First 	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
the original proof 	of 	service 	filed with PERB. 	If 	I 	do not
receive 	an amended 	charge 	or withdrawal 	from you before 	September
3, 	1992, 	I 	shall dismiss this charge. 	If you have any questions,
please call me at 	(415) 	557-1350.
Warning 	Letter
SF-CE-346-H
August 26, 	1992
Page 4
Sincerely,
Charlie I M Cla
CHARLES F. 	MCCLAMMA
Public 	Employment 	Relations 	Specialist
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