Regents of the University of California (Berkeley) (PERB 0308H)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE EMPLOYEES' 	ASSOCIATION,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE UNIVERSITY 	OF
CALIFORNIA 	(BERKELEY),
Respondent.
Case No. 	SF-CE-20-H
PERB Decision No. 	308-H
May 16, 	1983
Appearances: 	Philip E. 	Callis 	and Christine A. 	Bologna,
Attorneys 	for 	California State Employees' 	Association;
Claudia Cate, 	Attorney 	for 	the Regents of 	the University of
California.
Before Gluck, 	Chairperson; 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: 	This 	case 	is before 	the Public
Employment Relations Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the California State Employees' 	Association 	(CSEA or
Charging 	Party) 	and 	the 	Regents 	of 	the University of California
(University) 	to 	the 	hearing officer's proposed 	decision. 	In
that 	proposed 	decision, 	the 	hearing 	officer 	found 	that 	the
University 	had violated 	subsection 	3571(a) 	of 	the Higher
Education Employer-Employee 	Relations Act 	(HEERA)1 by
1The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	references 	hereafter 	will be 	to 	the Government
Code 	unless 	otherwise 	indicated.
Subsection 3571(a) 	states:
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limiting 	employees 	utilizing 	grievance 	and 	administrative
review procedures 	to one 	representative.
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(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.
The 	University 	disputes 	the 	hearing 	officer's 	conclusion
that 	HEERA provides 	higher 	education 	employees 	with 	the 	right
to present 	grievances 	to 	their 	employer 	or 	to do 	so with 	the
aid of more 	than one 	representative. 	It also contests 	the
hearing 	officer's 	finding 	that 	the 	University's 	rule 	resulted
in harm to 	employees 	and 	that 	the 	rule 	was 	not 	a legitimate
manner 	of 	eliminating 	past 	disruption. 	In CSEA's 	exceptions,
it 	argues 	that 	the hearing 	officer 	erred 	in dismissing 	the
charged 	violation 	of 	subsection 	3571(b)2 by 	concluding 	that,
as 	the 	nonexclusive 	employee organization, 	it 	enjoyed 	no 	right
to 	represent 	its 	members 	in grievances 	or 	administrative 	review
proceedings.
2Subsection 	3571(b) 	of HEERA states:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

FACTS
Beginning 	in September 	1978,3 	managerial personnel of 	the
University 	applied 	provisions 	of 	Staff 	Personnel 	Policies 	280
and 	290 	by 	imposing 	a 	limitation on 	the 	number 	of
representatives 	an employee 	could 	utilize 	in employee
grievances 	and 	administrative 	reviews, 	respectively. 	Policies
280 	and 	290 	are 	part of 	the University's Staff Personnel
Manual, 	a series 	of 	systemwide 	rules which delineate 	the
employment 	relationship 	between 	staff 	(nonacademic) 	employees
and 	the 	University.
Rule 	280 	sets 	forth 	the 	employee 	grievance 	procedure 	which
is 	available 	to employees 	challenging 	certain personnel matters
such as salary decreases, 	demotions, 	suspensions, warnings of
such actions, dismissals, discriminatory practices, 	and
improper 	implementations of 	the policy. 	Under 	rule 	280, 	the
employee 	can 	utilize 	an 	informal 	review process 	and 	a 	formal
hearing 	process. 	The 	University's 	hearing 	officer 	or 	committee
or 	an alternate 	conducts 	the 	hearing 	in which 	each 	party 	is
permitted 	to 	examine 	witnesses 	and 	introduce 	relevant
evidence. 	Certain 	types of 	decisions 	rendered 	under 	the
3until July 1, 	1979, 	higher 	education employees were
covered 	by provisions of 	the George Brown Act, 	codified 	at
Government Code 	section 	3525 	et 	seq., 	and 	not 	by HEERA. 	This
case 	does 	not 	concern 	any 	allegation 	that 	the University
unlawfully 	adopted 	the 	representation 	rule 	in September 	1978.
33

grievance 	procedure 	are 	final. 	Others 	are 	advisory decisions
presented 	to 	the 	chancellor 	for 	final 	review.
Specifically 	in contention 	in 	this 	case, 	with 	regard 	to
rule 	280 procedures, 	is 	rule 	280.31 which provides:
Representation. 	An employee may 	be
self-represented 	or 	may 	be 	represented 	by
another 	person 	at 	any 	stage 	of 	the 	review of
a grievance. 	If 	the 	employee 	is 	represented
by 	legal counsel, 	the University shall be
represented 	by 	the Office 	of 	the General
Counsel. 	Otherwise, 	the University shall be
represented 	as 	the 	Chancellor 	deems
appropriate.
Rule 	290 	sets 	forth 	the 	administrative 	review procedure
applicable 	to specific 	management 	actions 	such 	as 	those 	which
adversely 	affect 	the 	employee's 	terms 	and 	conditions 	of
employment, 	including 	transfer 	or 	promotion selections,
position classifications, merit 	salary 	increases, 	performance
evaluations 	and 	releases 	of 	probationary 	employees.
Administrative 	review 	contemplates 	an 	informal 	and 	formal
review 	by 	an 	independent 	party. 	The 	independent 	party 	is 	a
University 	employee 	with 	whom 	each 	party 	to 	the 	complaint 	has
an 	opportunity 	to meet 	and 	directly 	present 	information.
Decisions 	rendered 	under 	the 	administrative 	review 	procedure
are 	not 	final. 	The chancellor 	or 	president 	has 	final 	review
authority.
Specifically at 	issue 	regarding 	these 	procedures 	is 	rule
290.17 which provides:
4

Representation. 	An employee may 	be
self-represented 	or 	represented 	by 	another
person 	at 	any 	stage of 	the process. 	The
University 	shall 	be 	represented 	as 	the
Chancellor 	deems 	appropriate.
Evidence 	introduced 	at 	the 	hearing 	in 	the 	instant 	case
concerned 	specific 	incidents 	which 	arose 	under 	both 	grievance
and 	administrative 	review procedures. 	As 	discussed 	more 	fully
infra f 	CSEA witnesses 	testified 	as 	to 	specific 	instances 	where
management's 	application 	of 	the 	one-representative 	rule
allegedly 	resulted 	in difficulties. 	The 	one-representative
rule, 	CSEA asserts, 	denied 	employees 	a second 	representative
familiar 	with 	the 	actual 	job functions 	involved 	in 	the
complaint, 	able 	to 	take 	notes 	and 	assist 	the 	spokesperson,
available 	to 	gain 	training 	or 	to offset 	the 	number 	of
management 	representatives.
The 	University's 	witnesses 	testified 	as 	to 	instances where
the 	presence 	of 	more 	than 	one 	representative 	caused 	disruption
and 	delay.4 They 	described 	instances 	where 	the 	employee's
representatives 	asked 	numerous 	questions 	and 	interrupted
University officials, 	and 	where 	the 	participation of 	numerous
4Some 	of 	these 	circumstances 	occurred 	prior 	to 	the
adoption of 	the 	rule 	in September 	1978. 	Other 	incidents
occurred 	during 	an 	eight-month 	period 	when, 	by preliminary
order 	of 	the Alameda Superior 	Court 	in 	a 	lawsuit 	initiated 	by
the American Federation of State, 	County and Municipal
Employees, 	Local 1695, 	the University was 	enjoined from
enforcing 	its 	one-representative 	rule.
5

employee 	representatives 	was 	said 	to 	have 	obstructed 	resolution
and 	settlement.5
CSEA 	cross-examined 	University 	witnesses 	and 	introduced
direct 	testimony 	from 	its 	own witnesses 	in 	order 	to dispel 	the
contention 	that 	a 	correlation 	existed 	between multiple
representatives 	and 	delay 	and 	disruption.
DISCUSSION
Higher 	education employees 	have 	a 	right 	under HEERA 	to
present 	grievances 	to 	their 	employers. 	The 	language 	of 	section
3565 	affords 	employees 	the 	right 	to participate 	in 	the
activities 	of 	an 	employee 	organization 	regarding 	matters 	of
5The 	University 	witnesses 	also 	testified 	that 	the
one-representative 	rule 	was 	not 	absolute 	and 	argued 	that
exceptions 	to 	the 	rule 	are 	permissible 	under 	authority
delegated 	from 	the 	chancellor 	and 	have 	been granted.
CSEA 	witnesses 	rebutted 	that 	assertion 	and 	testified 	that
they 	were 	not 	aware of 	the 	fact 	that 	the University's
interpretation 	of 	the 	personnel policies 	contemplated
exceptions 	to 	the 	one-representative 	rule.
The 	hearing 	officer 	did 	not 	discuss 	the 	existence 	of
exceptions 	to 	the 	representation rules. 	We 	conclude, 	however,
that 	the 	University's 	rules 	do 	not 	contemplate 	flexibility.
The wording of 	the 	rules 	is 	unambiguous. 	They permit a
"person" 	to represent an employee. 	The 	rules do not state that
exceptions 	will 	be 	granted 	nor 	did 	the University 	advise 	the
employees 	or 	the 	employee 	organizations 	that 	exceptions 	would
be 	permitted. 	The 	record 	fails 	to 	identify 	if 	or 	for 	what
reasons 	exceptions were granted 	in 	the past. 	In light of 	this
lack of 	evidence, 	we 	are 	particularly disinclined 	to 	rely on
the University's eleventh-hour 	assurance 	that, 	in the 	future,
multiple 	representatives will be permitted. 	Thus, 	in the
discussion which 	follows, 	we 	analyze 	the 	legality of 	the 	rules
pursuant 	to 	their 	unambiguous 	facial meaning 	which 	precludes
flexibility or 	variance.
66

employer-employee 	relations.6 Under 	the 	Educational
Employment 	Relations Act 	(EERA)7 the 	Board 	has 	found 	that
participation 	in 	employee 	organization 	activities 	includes 	the
right 	of 	employees 	to 	be 	represented 	by 	an 	employee
organization 	in grievance 	proceedings.8 While 	the 	language
in EERA 	is 	not 	identical 	to 	section 	3565 of HEERA, 	it 	is
sufficiently 	similar 	to 	warrant 	application 	of 	the 	Board's
prior 	decisions. 	In this case, 	therefore, 	the Board must
determine 	whether 	the 	University violated 	subsection 	3571(a) 	by
unlawfully 	interfering 	with 	this 	employee 	right 	by 	limiting
6 Section 	3565 	provides:
Higher 	education 	employees 	shall 	have 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose of
representation 	on 	all matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of meeting 	and 	conferring. 	Higher
education 	employees 	shall 	also 	have 	the
right 	to 	refuse 	to 	join 	employee
organizations 	or 	to participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible 	under 	this 	chapter.
7EERA 	is 	codified 	at 	section 	3540 	et 	seq. 	of 	the
Government Code 	and 	section 	3543 	grants 	public 	school
employees, 	inter 	alia, 	the right to "form, 	join, and
participate 	in 	the 	activities of 	employee 	organizations."
8See 	Victor 	Valley 	Joint 	Union 	High 	School 	District
(12/31/81) 	PERB Decision No. 	192; 	North Sacramento School
District 	(12/20/82) 	PERB Decision No. 	264; 	Rio Hondo Community
College District 	(12/28/82) 	PERB Decision No. 	272.
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employees 	to one 	representative 	in grievance 	and
administrative 	review 	proceedings.
In Carlsbad 	Unified 	School District 	(1/30/79) 	PERB Decision
No. 	89 	and 	in Novato Unified 	School District 	(4/30/82) 	PERB
Decision No. 	210, 	the Board 	has 	considered 	the 	necessary
components 	of 	a charge 	that 	the 	employer's 	conduct 	has
interfered 	with 	employees' 	statutory 	rights.9 A nexus or
connection must 	be 	demonstrated 	between 	the 	employer's 	conduct
and 	the 	exercise 	of 	a protected 	right 	resulting 	in harm or
potential harm to 	that 	right which, 	in balance, 	outweighs 	the
employer's 	proffered 	business 	justification.
Thus, 	in order 	to sustain 	its charges, 	CSEA is 	required 	to
demonstrate 	that, 	as 	a result of 	the University's 	limitation on
representatives, 	the 	rights 	of 	the 	employees were harmed.
However, 	merely demonstrating 	that 	multiple 	representatives
would 	provide 	better 	representation 	is 	insufficient. 	The
University's 	rule 	is 	unlawful 	if 	the 	impact of 	it 	is 	to deprive
employees 	of 	their 	statutory 	rights 	to 	effectively 	present
9 The 	Board 	interprets 	CSEA's 	charge 	to 	be 	that 	the
University's 	policy 	interfered 	with 	employees' 	rights 	although
the 	actual 	language 	of 	the 	charge 	claims 	the 	policy 	deprived
CSEA and 	its 	members 	of 	rights 	and 	acted 	with 	the 	unlawful
motivation 	of discouraging 	the 	exercise 	of 	such 	rights.
While 	the 	standard 	relied 	on 	by 	the 	Board 	in Carlsbad,
supra, 	and Novato, 	supra, 	emerged under 	the EERA, 	it has been
applied 	to cases 	involving 	alleged 	violations 	of 	subsection
3571 (a) 	of HEERA. 	California State University, 	Sacramento
(4/30/82) 	PERB Decision No. 	211-H.
8

their 	grievances.10
As 	evidence 	of 	the 	harm 	suffered 	as 	a 	result 	of 	the
representative 	rule, 	CSEA witnesses 	involved 	in grievances 	and
administrative 	reviews 	testified. 	Five 	such 	incidents 	in which
harm 	allegedly 	occurred 	were 	examined.
In 	the 	case 	of employee Nancy 	Gusack, 	the 	grievant
requested 	that 	certain 	letters placed 	in 	her 	personnel 	file 	be
removed 	and 	that 	management 	apologize 	for 	placing 	them 	in 	her
file. 	The University 	contested 	the grieveability of 	this
dispute. 	At a meeting 	scheduled 	to discuss 	this 	issue, 	CSEA
wanted 	two 	representatives, 	the 	job 	steward 	who 	had 	attended
the 	informal meetings 	and 	another 	who 	was 	familiar 	with 	the
technical 	question 	of 	GRIEVABILITY. 	The 	University 	refused 	to
permit 	two 	representatives 	and 	the 	grievant 	refused 	to proceed
with 	one 	representative.
Although 	the 	record 	demonstrates 	that 	the 	University
advised 	Gusack 	that 	the 	letters 	were 	in 	fact 	removed 	from 	her
file, 	CSEA claims 	the 	grievant 	was 	denied 	assurances 	that 	such
had 	been 	accomplished 	and 	an 	apology 	for 	the 	action.
10Consistent 	with 	this 	analysis, 	we 	necessarily do not
perceive 	the 	University's 	rule 	to 	be 	inherently 	destructive 	of
the 	employee's 	rights 	and 	agree 	with 	the 	University's 	argument
that 	the 	language 	of 	HEERA does 	not 	specifically 	grant 	higher
education 	employees 	the 	right 	to more 	than one 	representative.
9

We do 	not 	find 	in 	the 	record 	any 	evidence 	that 	the
University's 	rule 	effectively 	prevented 	Gusack 	from
participating 	in 	the 	grievance 	process. 	Contrary 	to CSEA's
claim, 	it 	is highly speculative 	that, 	had 	the meeting been
conducted 	with 	the 	assistance 	of 	two 	representatives, 	the
grievant 	would 	have 	gained 	assurances 	and/or 	apologies 	from 	the
employer. 	The 	remedy 	provided 	for 	by 	the 	personnel policy does
not 	include 	issuance 	of 	letters 	of 	apology.11 Further, 	the
grievant 	could 	have 	reviewed 	her 	file 	personally 	to 	determine
whether 	the University had 	complied. 	(See Cal. 	Civ. 	Code,
section 	1798.34.)
The 	case 	of 	David Weinberg 	involved 	the 	administrative
review of 	the dismissal of 	this 	probationary employee. 	Two
representatives 	were 	desired, 	one 	an 	experienced 	grievance
handler 	and 	another 	who 	possessed 	technical 	knowledge
concerning 	the 	grievant's 	classification 	and 	duties 	as 	a
mechanician's 	helper. 	Weinberg 	was 	denied 	two 	representatives
at 	a meeting 	with 	the 	appointed 	independent 	party 	assigned 	to
investigate 	the 	administrative 	appeal. 	While CSEA 	attempted 	to
11Rule 	280.27 	provides:
Remedy. 	If 	the management 	action grieved 	is
determined 	to 	be 	in violation of 	staff
personnel policy 	or 	the 	Chancellor's
implementing procedure 	or 	if 	the 	corrective
action or 	dismissal 	is 	determined 	not 	to be
reasonable 	under 	the circumstances, 	the
remedy 	shall 	not 	exceed 	restoring 	to 	the
employee the pay, 	benefits, 	or 	rights lost
as 	a result of 	the 	action, 	less 	any 	income
earned 	from 	any 	other 	employment.
10

have 	the 	investigator's 	ruling 	overruled, 	the 	University
advised Weinberg 	that 	he 	had 	15 	days 	to meet 	with 	the
investigator 	with 	one 	representative. 	No meeting 	was 	arranged
and 	the 	grievant's 	appeal 	was 	denied. 	A CSEA witness 	testified
that 	he 	had 	been 	planning 	to make 	arguments 	at 	the 	meeting 	with
the 	investigator 	but was 	denied 	the 	opportunity 	to do 	so.
The 	University 	argues 	that 	Weinberg 	was 	harmed 	not 	by 	the
University 	rule, 	but 	by 	the 	decision 	to 	forfeit 	participation
in 	the 	investigative process. 	The 	procedure provided 	by
rule 	290 	does 	not 	involve a 	formal hearing. 	It 	is an
investigation 	by 	an 	"independent 	party" 	appointed 	by 	the
chancellor 	which 	provides 	the 	complainant 	with 	an 	opportunity
to meet 	with 	and 	present 	information 	to 	the 	investigator. 	The
University 	witness 	testified 	that 	a 	party 	can 	identify 	other
persons 	for 	the 	independent 	party 	to 	interview 	and 	can 	submit
written 	documents 	for 	consideration.
We 	therefore 	find 	that 	CSEA 	failed 	to 	substantiate 	its
allegation 	that 	employee Weinberg 	was 	harmed 	as 	a 	result 	of 	the
University's 	representation 	rule. 	An 	employee 	representative
familiar 	with 	the 	technical 	aspects 	of 	the 	grievant's 	job 	could
have 	been 	identified 	and 	interviewed 	by 	the 	investigator.
Evidence 	concerning 	the 	arbitration 	of 	employee
John Ella 	Reese 	was 	also 	presented. 	The 	dispute 	involved
recall 	rights 	of 	a 	laid-off 	employee. 	A 	second CSEA
11

representative, 	who had 	represented Reese 	initially, 	was
desired 	in order 	to provide 	clerical 	assistance 	(note-taking,
monitoring 	tape 	recording operation by University).
The 	arbitrator 	denied 	Reese 	the 	second 	representative
although 	he 	ultimately 	concluded 	that 	Reese 	was 	improperly 	laid
off 	and 	ordered 	reinstated 	with 	back 	pay. 	CSEA claims 	it was
harmed because, 	in subsequent efforts 	to 	resolve questions of
settlement 	"that will 	have 	to 	be pursued," 	better 	notes 	from
the 	arbitration 	would 	be 	helpful. 	By 	denying 	the 	second
representative, 	CSEA avers, 	accurate 	and complete 	record
keeping 	was 	hindered 	and 	future 	settlement 	efforts 	thwarted.
We 	find 	that 	CSEA has 	not 	proved 	that 	harm 	in 	fact 	resulted
because 	a 	second 	representative 	for 	clerical 	assistance 	was
denied. 	Even 	assuming 	that 	actual 	implementation of 	the
arbitrator's 	back 	pay 	award 	proved 	difficult, 	any 	connection
between 	that 	difficulty 	and 	the 	unavailability of
contemporaneous 	notes 	is 	highly 	speculative.12
In 	the Edward Santos 	grievance, 	CSEA sought 	to have 	two
representatives, 	a CSEA 	staff member 	and 	a 	job steward with
12 Also 	in connection with Reese, 	CSEA alleges 	that 	harm
resulted 	when 	the manager 	of 	the 	personnel 	services 	unit
refused 	to permit 	two 	representatives 	to participate 	at 	a
meeting 	convened 	to discuss 	the 	consolidation of 	a 	number 	of
grievances 	filed 	by 	Reese. 	Testimony 	from University witnesses
defeats 	this 	speculative 	assertion. 	The manager 	lacked
authority to consolidate grievances 	and, 	in any event, 	the
grievances 	would 	not 	have 	been 	consolidated 	under 	University
policies.
12

familiarity 	in 	the 	building 	trades. 	The University 	refused 	to
permit 	two 	representatives 	and 	no meeting 	occurred.
Eventually, 	the Santos 	grievance 	was 	rejected 	as 	being outside
the 	scope 	of 	rule 	280 	and was 	referred 	to 	the 	rule 	290
administrative process. 	No appeal 	was 	taken of 	this 	decision
as 	to grieveability nor 	did Santos 	pursue 	the 	dispute 	through
the 	administrative 	review process.
CSEA 	has 	clearly 	failed 	to 	establish 	that 	harm 	resulted
because 	of 	the 	application of 	the 	representation 	rule 	rather
than 	through 	CSEA's 	own 	failure 	to 	further 	pursue 	the
grievant's 	complaint.
Finally, 	CSEA 	introduced 	testimony 	regarding 	the
administrative 	review of 	a 	dispute 	involving 	employee
Joseph 	Light. 	The 	University 	refused 	to permit 	the 	employee
two 	representatives. 	Although CSEA decided 	to 	accede 	to 	this
restriction 	under 	protest, 	the 	representative who participated
testified 	that 	four 	management 	representatives 	were 	present 	at
the 	meeting. 	He 	testified 	that 	he 	felt 	that 	the University was
attempting 	to be 	intimidating 	by 	having 	several people 	present.
The 	University 	argues 	that 	CSEA 	failed 	to 	establish 	that
its 	representative 	was 	in 	fact 	intimidated 	or 	that Light's
complaint was 	adversely 	affected. 	It 	also points out 	that CSEA
did 	not 	request 	affirmative 	relief 	for 	Light.
We 	find 	insufficient 	evidence 	to 	conclude 	that 	actual 	harm
resulted 	to 	the 	employee 	because of 	the 	application of 	the
University's 	rule 	in 	this 	instance.
13

In 	sum, 	we 	find 	that 	the Charging 	Party has 	failed 	to
demonstrate 	actual 	harm 	to 	support 	its 	unfair 	practice
allegation. 	This 	is 	in accord 	with 	the 	decision 	in City of
Hackensack 	(12/21/77) 	4 NJPERC para. 	4011 where 	the New Jersey
Commission 	adopted 	the 	unexcepted-to 	opinion 	of 	the 	hearing
officer 	(at 	3 	NJPER 280) 	finding 	that 	the 	City did 	not 	commit
an 	unfair 	practice 	by denying 	an 	employee 	the 	right 	to have
more 	than 	one 	union 	representative 	at 	his 	disciplinary
hearing. 	In 	that case, 	the hearing 	officer 	concluded:
It 	is 	not 	unreasonable 	for 	the 	City 	to 	limit
the 	number 	of 	representatives 	at 	a 	hearing
for 	the purpose 	of maintaining order 	and, 	as
in a 	typical courtroom situation, 	one
competent 	representative 	should, 	in most
cases, 	be 	able 	to adequately represent 	the
interest of 	the 	individual 	in question 	and
the Association. 	Accordingly, 	the 	burden of
proof 	here must 	be 	on 	the Association 	to
prove 	that 	they 	could 	not 	receive 	adequate
representation. 	Since 	the Association
failed 	to 	prove 	they 	did 	not 	receive
adequate 	representation, 	the 	undersigned
finds 	the 	City 	did 	not 	commit 	an 	unfair
practice 	in 	limiting 	the 	representatives 	at
[the 	employee's] 	hearing 	to one person.
(Footnote 	omitted.)
Even 	if 	actual harm did 	not 	result 	from 	the 	University's
representation 	limitation, 	the Board may 	find 	that 	the 	rule 	is
violative 	of HEERA subsection 	3571(a) 	because 	it 	has 	a 	tendency
to cause harm to employees' 	rights. 	Carlsbad, 	supra; 	Novato,
supra. 	This potentiality, 	however, 	will 	not 	be based on
boundless 	speculation or 	conjecture. 	To 	be violative 	of 	HEERA,
the 	potential 	for 	harm must 	emerge 	in 	the 	context of 	reasonably
14

anticipated 	circumstances 	from which 	it 	is 	logical 	to 	infer 	or
expect 	that 	harm 	to 	employees' 	rights 	would 	result.
In 	this case, 	CSEA has 	identified 	four 	reasons 	for 	wanting
more 	than 	one 	representative 	available 	to an employee. 	They
are:
a. 	The 	need 	to 	have 	stewards 	present 	with 	different 	areas
of 	expertise;
b. 	The 	need 	to have 	a more 	experienced 	steward 	to 	assist
and 	to 	train 	a 	new 	steward;
c. 	The 	need 	for 	parity 	to 	avoid management 	intimidation;
and
d. 	The 	need 	for 	clerical 	assistance 	during 	complicated
proceedings.
We 	agree 	that 	the 	right 	to 	representation 	includes 	the
right 	to present all 	relevant 	evidence, 	including 	expert
opinion, 	the 	right 	to 	representation 	by a 	trained 	steward, 	the
right 	to 	freedom 	from 	intimidation, 	and 	the 	right 	to 	a 	record
of 	the 	hearing. 	However, 	we 	find 	that 	the 	University's 	rule
does 	not 	deprive 	the 	employee 	of 	these 	rights 	because
achievement 	of 	these 	legitimate 	aims 	is 	not 	dependent 	upon
being 	allowed 	multiple 	representatives.
The 	ability 	to 	utilize 	individuals 	with 	expertise 	in
certain 	areas 	of 	employment 	relevant 	to 	a 	particular 	dispute
may be critical to a successful grievance. 	However, 	the
15

University's 	rule does 	not 	significantly 	impede 	this 	goal. 	In
grievances, 	such 	individuals may be 	called 	as 	witnesses 	in 	the
formal proceeding 	and, 	unlike 	a 	representative 	or 	spokesperson,
may 	give 	direct 	testimony. 	In 	administrative 	review
proceedings, 	the 	knowledgeable person 	can 	be 	identified 	to 	the
investigator 	and 	in 	that manner 	provide 	his/her 	knowledge 	of
the 	particular 	work 	environment.
Permitting 	a 	novice 	representative 	to 	be 	assisted 	by 	a
second, 	more 	experienced 	representative 	might 	provide 	valuable
training 	to CSEA representatives. 	However, 	we 	do not believe
that 	the 	University 	is 	required 	to 	fashion 	its 	internal dispute
resolution procedures 	to 	facilitate 	this 	result. 	Alternative
methods 	of 	training 	experienced 	and 	skillful 	representatives
are 	available 	to CSEA.
The 	organization 	is 	properly 	concerned 	with 	providing
employees 	with 	representatives 	whose 	effectiveness 	and
abilities 	are 	not 	diminished 	or 	undermined 	by 	virtue 	of 	their
intimidation. 	However, 	there 	is no factual basis 	to support
CSEA's 	claim 	that 	intimidation 	resulted 	from 	the 	disparate
number 	of 	representatives 	of 	the University 	and 	the 	employee.
Neither 	do 	we 	find 	that 	the 	University's 	rule 	is 	inherently
intimidating.
Finally, 	we 	again 	recognize 	that 	clerical 	assistance
provided 	by 	a 	second 	representative 	may 	indeed 	prove 	beneficial
to 	the 	employee's 	representation. 	We 	fail 	to 	find, 	however,
that 	the 	single 	allowed 	representative 	and 	the 	employee
16

himself/herself 	would 	not be 	able, 	between 	them, 	to maintain a
useful 	and 	adequate 	contemporaneous 	record.
CONCLUSION
In sum, 	it 	is 	our 	conclusion 	that 	the 	Charging Party has
failed 	to present 	sufficient 	evidence 	to 	demonstrate 	that 	the
University's 	representation 	rule 	actually 	harmed 	or 	tended 	to
harm employees 	by 	interfering 	with 	rights 	afforded 	them 	by
HEERA provisions. 	Likewise, 	while we 	find 	that CSEA, 	as 	the
nonexclusive 	employee 	organization, 	enjoys 	a 	right 	under 	HEERA
to 	represent 	employees 	in grievance 	and 	administrative 	review
proceedings,13 we 	find 	no 	evidence 	that 	the 	University's 	rule
denied 	the 	employee 	organization 	its 	rights 	in 	contravention 	of
HEERA subsection 	3571(b).
13Although 	HEERA does 	not 	specifically 	grant
representational 	rights 	to a 	nonexclusive 	representative, 	the
Board 	has 	found 	in California State University, 	Sacramento,
supra, 	that 	the 	nonexclusive 	representative 	enjoys 	those 	rights
previously granted 	by 	the 	George Brown Act. 	See 	Regents 	of 	the
University of 	California, 	Lawrence Livermore National
Laboratory 	(4/30/82) 	PERB Decision No. 	212-H; 	Regents of 	the
University of California 	(UCLA) 	(12/21/82) 	PERB Decision
No. 	267-H. 	See 	also 	section 	3528 	of 	the 	George Brown Act,
which provides:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in 	their
employment 	relations, 	including grievances,
with 	the 	state. 	Employee 	organizations may
establish 	reasonable provisions 	for 	the
dismissal 	of 	individuals 	from membership.
Nothing 	in 	this 	section 	shall 	prohibit 	any
employee 	from appearing 	in 	his 	own 	behalf 	or
through 	his 	chosen 	representative 	in 	his
employment 	relations 	and 	grievances 	with 	the
state.
17

Having 	concluded 	that 	the 	representation 	limitation 	did 	not
deprive 	either 	the 	employees 	or 	CSEA of 	rights 	granted 	by
HEERA, 	we 	need 	not address 	the University's 	argument 	that 	the
rule 	was 	legitimately 	enacted 	to prohibit 	multiple
representatives 	and 	thus 	avoid 	disruption 	and 	delay.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the 	entire 	record 	in 	this 	case, 	the 	Public Employment 	Relations
Board 	hereby 	ORDERS 	that 	the 	complaint 	issued 	by 	the 	general
counsel 	and 	the 	underlying 	charge 	filed 	by 	the 	California 	State
Employees' 	Association in Case No. 	SF-CE-20-H be DISMISSED.
Chairperson Gluck, and Member Burt 	joined in this Decision.
18