Regents of the University of California (California State Employees Association) (PERB 0362H)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
I
CALIFORNIA
	STATE
	EMPLOYEES
	ASSOCIATION,
Charging
	Party,
v.
REGENTS
	OF
	THE
	UNIVERSITY
	OF
	CALIFORNIA,
Respondent.
)
)
)
)
)
)
)
)
)_____________________ )
Case	
No. 	SF-CE-134-H
PERB
	Decision
	No. 	362-H
December
	7,
	1983
Appearances:	
Steve
	Diamond, 	Shop
	Steward,
	for
	California 	State
Employee~
	Association:
	and 	Edward
	M.
	Opton,
	Jr.,
	Attorney 	forthe
	Regents
	of 	the 	University 	of 	California.
Before Tovar,
	Jaeger
	and
	Burt,
	Members.
DECISION
TOVAR,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(Board) 	on 	an
	appeal
	by
	the
	California State
Employees'Association
	(CSEA)
	to
	the 	attached 	decision 	of 	the
Board's 	regional 	attorney 	refusing 	to 	issue
	a
	complaint
	and
dismissing 	the
	unfair 	practice
	charge
	against
	the
	Regents
	of
the 	University 	of 	California 	for
	failure 	to
	state
	a
	prima
	facie
violation 	of 	the
	Higher 	Education
	Employer-Employee
	Relations
Act
	(HEERA)
.1
After 	considering 	the
	entire
	record 	in
	light
	of
	CSEA's
arguments 	on
	appeal, 	the
	Board
	affirms 	the 	regional 	attorney's
factual 	findings
	and
	conclusions 	of
	law.
lHEERA
	is 	codified 	at
	Government 	Code
	section
	3560
	et
	seq.

ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the Board 	ORDERS 	that 	the 	charge 	filed 	by 	CSEA 	is 	hereby
DISMISSED.
Members 	Jaeger 	and 	Burt 	joined 	in 	this 	Decision.
2

srxn.:
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CAllFO'lr+IA
---------
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ru::1.u
	EMPLOYMENT
RELATIONS(
	JA~D	
c
~_.,n
	Frcmdsco Regional Office
Post Street, 9th Floor
•.::.::n
	Francisco, California
94108
(415)
557-1350
f'7})__·
February 28, 1983
Steve
Diamon:l
CSEA,
Chapter
	41
2039
Shattuck
Avenue,
	?l:207
Berkeley,
CA
	94704
James
O::Ue
Office
of
the
General.
Counsel
590
University
F.all
2200
University
Avenue
Berkeley,
CA	
94720
OF
	Re:
	REFUSAL TO ISSUE
C01PIArnl'
A.'ID
DISMISSAL 	UNFAIR PRACTICE
OIAF:GE
California
St3.te Employees
Asscciaticn
v.
	Regents
of
	the
University
of
California.
Charge No. SF-CE-134-H
Dear
Parties:
Pursuant
to
Public
Employment
	Board
	(P
a carrplaint
will
not
be	
issued in
the
above-referenced
case
and
the
per.ding
charge
is
hereby dismissed because
	it
fails
	to allege
facts sufficient
to
state
a prL~a
facie
violaticn of
	the Higher Education Eiiployer-Ernployee-
Relations
Act 	{HE8RA)
Relations
	ERB}
	Regulation section 32730,
·
.l 	The reasoning which
underlies
	this
decision
follcus.
(CSEA.}
	On October
14,
	1982
the
califomia
State
Employees
Asscciation
	filed
an
unfair practice
charge
against the
Regents
of
the University
of
California
(University)
	alleging
violatic.'1
of section
3571, sub:livisions
	(a}
	and
	(b}
	of
HEERA.2	
entered
	More
si;:ecifically,
CSEA
alleged
that:
	the University
	a
settlement
agreement wit.h
	its
organization
on May
7,
	1981; Mr. Vasquez, one
of
the
employees oovered
by the
agreement, was
to
be
hired
"in the
career 	.
positicn of
Custcrlian"
	as of
Hay
1,
	1981;
	instead,
Vasquez was
hired as a
!	
et
	References to the
HEERA
are to
C-overnment Cede
sections
3560
	seq.
PERB Regulations are ccdifiecl
at califomia
Administrative Cooe,
Title 8.
2section 3571, subdivisions 	(a) 	and 	(b)
	state:
It
shall be
	unlawful for 	the higher education
employer
	to:
(a) 	Lup::,se or threaten to impose repris~ls on

James Cxlle
Steve
Diamond
February
28, 1983
Page
2
laver
paid
"Senior
Custcx:Uan;" and, such
a:mduct
breaches
	the
terms
of
the
settlement
agreement there!:¥
violating
the
HEER.A
provisions
cited
above.
Further,
CSFA
alleges
	that
although
paid
at
different rates,
	custodians
classified
as
Custcrlians and
Senior
CUsta:1ians perform work whic.~
requires
"substantially
equal
effort,
	skill
and
responsibility;"
	the difference
exists
because
historically
the better-paid
group has been
represented
by American
Federation
of
State,
County and Municipal
Emploiyees,
Lccal
371
	(AFSCME);
	and,
"the
maintenance
of
o,,o
separate
pay
scales
and working
conditions"
violates
HEERA.
My
investigation
revealed
the
follaving.
	On March
4,
	1981,
CSE.A.
filed
an
unfair
practice
charge
	(SF-CE!-46-H)
	against
the University, alleging
that
	four
University
employees were
fired discriminatorily
because
of
their
association
with
CSEA..
	That charge
was
settled
by
agreement,
	dated
May
7,
	1981.
Mr.
Vasquez was employed
at
	the
time
of
the
alleged discrimination
as
a Fcod
Service
Worker
	III.
	The agreement
promised
him a promotion
to
higher
paid
employment
at
	the International
	("I'')
	House 	{Berkeley carnpus)
	"in
the
careerp::sition
of
Custodian."3	
He
began
...-ark
as
a
custodian
at
"I"
House during
the
first
week
of
May
1981.
There were two
categories
of
campus
custodian
in
existence
at
	the
time
the
parties
concluded
the settlement
agreement: Custodian, and
the
lower
paidSenior
CUsto::1ian. 	Apparently, 	t.he
parties' 	settlement
discussions
did
notinvolve reference to
	the existence of
	two
distin8t
custodian
classifications
o.r
	the
particular
salary
Mr. Vasquez
w-ould
receive
	in
his
new
	job.
Thereafter,
Hr.
Vasquez
was
employed
at
the "I"
House;
	but,
	unknown
	to him
or
CSFA,
	until
approxi~ately
one year
later,
	he was
classifiea
as
	a Senior
custodian
and
	paid
at
the lower
	rate. 	In July
1982,
CS&\
representatives
employees,
	to
discriminate or threaten
todiscriminate against
employees,
or otherwise
to
interfere
with,
	restrain,
	or
ooerce e.it1ployees
because
of their exercise of rights
guaranteed by
this
chapter.
(b) 	Deny
to
ernployee organizations
rights
guaranteed
	to
them bJ
this
chapter.
3The 	greement oontained
several additional
terms incluaing, but not
limited to,
	promises
of
	advarice.-rnent
	to
one
	individual
and monetary awards
	to
all
four.
	None
of the other terms are alleged 	to
have been breached.
a

.James Cxlle
Steve
Diarrond
February
23,
	1983
P2.ge 3
complained
to
the University
that
	the
14~:rronth
old
agree..111ent
was
not
being·enforced
correctly.
The
University disp.ites
CSE'A's
claim
that
the
settlement
agreement
is
being
enforced
incorrectly.
	The
University
asserts that:
Vasquez
was
hired, as
pranised,
	to
perform
custodial
~rk
at
the "I"
House;
	all
	the
custodians
at
that
location are
classified
as
Senior Custcdians;
	the use
of capital
"C
11
in
the contract
term "Custodian" was
not
	included
for the
purp:,se
or
with
the
effect of
granting
him
the
higher
paid status;
	and
therefore,
	the
classification
and payment
of
Vasquez
is
consistent
with 	the
terms
of
the
parties
agreement.
The
University
does
not
disp.1te CSFA's
allegations
regarding the derivation
of
the
pay
differential
existing
between
the
Custodians and
Senior
a1stcrlia.is.
Rather, 	the University
defe.TJ.ds
on
legal
grounds, contending
that
the
existence
of	
tw:>
wage
scales
does
not
violate
HEERA.
Two
factors
mandate
dismissal
of
the
charge.
	First,
	breach
of
a
settlement
agreement,
	without
more, 	does not
violate
section
3571 sul:xlivisions 	(a) 	and
(b}.
	HEE:RA
section
3563.2
(b)
	states:
The board
shall
not
have
authority
to
enforceagreements between
the
parties,	
arid
shall
not
issue
a 	o::implaint on any charge based on
alleged
violation
of
such
an agreement
that
v;ould
not
also oonstitute
a,
u:i.fair
practice
under
	this
chapter.
Iesolution by
PERB
of
a disp.1te
about
	the meaning
of
ari agreement must be
ir:cidental
to
	its
	review
of
a charge
alleging separate violations of
HEE:RA.
Victor
VaUey
Joint
Union High
SchCXJl
District
	(12/31/81)
	PERB
Decision
No. 	192; Grant .Joint Union High School
District
	(2/26/82)
	PERB
Decision
No. 	196. 	This
	rule applies to settlement
agreements
as well as
the
parties'
rollective
bargaining agreement.
CSFA
bases
	its
unfair practice
charge on breach
of
an agreement.
However,
	it
argues
that
the
breach
of
an agreement v.nich
	settled
cffl
unfair
practire
charge
affects
HEERA
interests
m::,re
vitally
than dces 	the breach
of
a
rollective
bargaining contract
and,
	therefore, 	the breach
	itself
violates
HEERA.
	There
	is
no
legal authority to
support
	that :rosition.
	Moreover, even
if
	the
Board were a
party to
a
settlement, thereby lending
	its·authority to
the
agreei11ent and rendering
	it
somewhat akin
to
a Board
order,
	a bre,3ch
\-.Duld
"not
constitute
·a per
se separate,
	new
violation of
statute."
	(See
San Francisoo Camumity College
District
	(12/31/82)
	PERB
D2eision No. 	278,
holding
that violation of a Board order
	is
not a separate violation of the

Jan:es O::ile
Steve
Dia.rr.ond
February
28, 1983
Page 4
Educational
Employrr:ent
Relations
Act	
(EE...
0
,..Z\}
	which
	is
codified
at
Government
Code
section
3540
et
~)
Second,
	and
relatedly,
	charging
party
has
failed to
allege or
establish
that
the
employer's conduct
was undertaken
in retaliation
against the
charging
party
for
having
exercised
HEERA
rights
or
	that it.tended to
	interfere or
interferes
with
charging
party's
exercise
of
HEERA
rights.4	
The charging
party
must
allege
facts
establishing
a 	"nexus"
or
"connection" between
the
employer's conduct
and
the
employee's
exercise
of
HEERA
rights.
	(carlsbad
Unified
School
District
	(1/30/79)
	PERB
Decision
No. 	89; Novato School
District
(4/30/82)
	PERB
Decision No. 	210;
	California
State University
	(Sacrarr.ento)
(4/30/82)
	PE.RB
Decision
No.
	2ll-H.)
	CSEA
1 s charge
	is
deficient
for
failing to
allege
a
violation of
HEERA
rights.
	There
is
no
allegation
that
the
University
classified
Vasquez
as
a
Senior
Custo::lian
in retaliation
fer
his
having
exercised
BEEM
rights, or, 	that
such a
classification
tended
to
interfere
or
	interfered with
the
exercise
of
such
rights.	
CSEA
for similar
reasons has
not
stated
a prima
facie
violation of
sections
357l(a)	
arid 	(b)
	by
alleging	
that
there
exist
~
separate
groups
of
employees who,
	while
possessing
essentially identical
skills
and performing
compa.cab,.':':
'"''1,:~~:	
·
...
~·,r·}~
lll'ld-
!'~ ,
t;
~,:.
,a·~:
-,i;
·
~
,.,
,
~
i
LL
~·
,..:,;
	.:in]	
(r-_~::::e.i.
ve
Ji_
tferent
pay.
	There
	is
no
allegati0:.1
that
the
University's
o::induct
constituted
retaliation
against the
lc;Mer
paid
group because
	its
membe?:s
exercised
HEE.RA
rights.
	Nor
	is
	it
alleged that
the
o::mauct
caused harm
to
the
HEERZ\
rights of
ari !?..mployee
and/or 	the
e.'Tif)loyee
organization. 	Finally,
	the
allegations
co
not
establish
a
	11
com1ection
11
between
the
employer I s conduct and
the exercise
of
HEF:
0A
rights.
	For
thereasons
stated
above, 	no
canplaint
will
be
dissued
and
the
charge accordingly
is
dismissed.
4HEE...~
establishes certain rights
on
behalf
of
covered employees.
Section
3565
states:
Higher
	education
e.rnployees
shall
have
	the
right to
form,
	join
and
participate•in
the
activities
of
employee
organizations
of their
a..m
choosing
for 	the
purpose·of representation
on
all
matters of
employer-employee
relations
and for 	the
purJ_X)se
of
meeting and
conferring.
	High2r education employees
shall also
have the
	right to refuse 	to join
~~ployee
organizations or 	to participate in the
activities ofthese organizations subject to the
organizational
security provision permissi!:lle under
	this chapter.

Jarnes Odle
Steve
Diamond
February 28,
	1983
Page 5
Pursuant
to Public
Employment
Relations
Board
regulation section
32635
(California
Aclministrative Code,
	title
8, part
III},
	you
may
appeal the
refusal
to
	issue
a o:,mplaint 	(dismissal)
	to
the
B:Jard
itself.
Right
to
Appeal
You
may
obtain
a
revia~
of this
dismissal
of
the
charge
by
filing
an
appeal
to
the
Board
itsel£
within
twenty 	(20)
	calendar
days
after
service
of this
Notice
(section 32635(a)).
	To
be
timely
filed,
	the
original
and
five
	(5)
	copies
of
such
appeal
must be
actually
received
by
the Board
	itself
before the
close
of
bJsiness
	(5:00 p.m.) 	on March 21, 1983,
or sent
by telegraph
or certified
United
States
mail
postmarked
not
later
	than March 21,
1983
	(section
32135).
The Board 1 s
	address
	is:
Public
Employment
Relations
Board
103118th
Street
Sacramento, CA 	95814
If
you
file
a
	timely appeal
of
the
refusal
to
issue
a c:omplaint, any
other
party
may
file
with
	the
Board an
original
and
five
	(5)
	ropies
of
a statement
in
opposition within
twenty 	(20)
	calendar
days following
	the date
of service
of
	the appeal 	(section 32635(b)).
Service
.All documents
authorized
to
be
filed
herein
must
also
be
"served
11
	upon
all
parties
	to
the
proceeding, 	and a 	"proof
of
service"
must accompany the
docurr.ent
filed
with
the
Beard
itself
	(see
section
32140
for 	the
required
contents
arrl a sample form) • 	The document
will
be considered properly"served" when
personally delivered or
deposited
	in
the
first-class
mail
postage paid arrl
properly
addressed.
Extension
of
Time
A
request for
	an extension
of
time
	in
which
to
file
a
c1oc1..unent
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}
	calendardays before the expiration of
	the time required for
	filing
	the document. 	The
request
must
	indicate
good cause for 	arid,
	if
knmm, 	the p:,sition of
each
other
party
regarding the extension, 	and
shall
be accompanied by proof of service ofthe request upon each
party 	(section 32132).

. Jan1es
O:ile
Steve
Diamond
E'ebrua.ry 28 ,
	1983Page 6
Final
Date
If
no
appeal
is
filed
within
the
specified
time
limits,
	t.he
dismissal
will
become
final
when
the
	tirr:e
limits
have expired.
Very
truly
yours,
DENNIS
M.
	SULLIVAN
C-.eneral
~el
By	
•..
	/;J/4__/14-~PETER
HABERFELD
R.."'gional
Attorney
1
cc:
	C--eneral Counsel