University of California, San Diego (PERB 0781H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CARMEN MICHELE 	COMSTOCK,
Charging 	Party,
v.
UNIVERSITY OF 	CALIFORNIA,
SAN DIEGO,
Respondent.
Case No. 	LA-CE-246-H
PERB Decision No. 	781-H
December 15, 	1989
Appearances: 	Carmen Michele Comstock, 	on her own behalf; 	Susan
Benjamin, 	University Counsel, 	for University of California,
San Diego.
Before Hesse, 	Chairperson, 	Shank and Camilli, Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by the 	charging party of 	a
Board agent's 	dismissal 	(attached hereto) 	of her charge 	that 	the
respondent violated 	section 	3571(a) 	of 	the Higher Education
Employer-Employee 	Relations Act 	(Government Code 	section 	3560 	et
seq.). 	We have reviewed the dismissal and, 	finding it 	free of
prejudicial 	error, 	adopt 	it as 	the Decision of the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-246-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional O f f i c e
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
April 27, 	1989
Carmen 	Michele 	Comstock
RE: 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT, 	Unfair 	Practice
Charge No. 	LA-CE-246-H, 	Carmen Michele Comstock v.
University of 	California, 	San 	Diego
Dear Ms. 	Comstock:
I 	indicated 	to you 	in my attached 	letter dated 	March 	27, 	1989,
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 	that would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended the 	charge 	to 	state 	a prima 	facie 	case, 	or withdrew 	it
prior to April 	5, 	1989, 	the charge would be dismissed. 	I 	later
gave you an extension of time 	to April 	18, 	1989.
I 	have 	not received 	either 	a 	request 	for withdrawal 	or 	an 	amended
charge. 	In a telephone conversation on April 	14, 	1989, 	however,
you 	raised 	a 	question 	concerning Government 	Code 	section 	3567,
which 	states 	in part 	as 	follows:
Any 	employee 	or 	group 	of 	employees 	may 	at 	any
time, 	either 	individually or through 	a
representative 	of 	their 	own choosing, 	present
grievances 	to 	the 	employer 	and have 	such
grievances 	adjusted, 	without the 	intervention
of 	the exclusive representative; 	provided,
the 	adjustment 	is 	reached prior 	to
arbitration. 	(Emphasis 	added.)
You questioned why, 	considering 	that your 	grievance 	never
actually went 	to 	an 	arbitration hearing, 	you 	could not 	continue
to 	deal 	with 	the 	University directly 	or 	through 	your 	attorney.
The 	answer 	to 	your question 	is 	that 	the 	right 	set 	forth 	in
Government Code 	section 	3567 	has 	been held to be defeasible, 	that
is, 	to be 	subject 	to 	limitation by agreement between the 	employer
(in your 	case, 	the 	University) 	and 	the exclusive 	representative
(AFSCME). 	Chaffey Joint Union High School 	District 	(1982), 	PERB

Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-246-H
April 27, 	1989
Page 2
Decision No. 	202. 1 The 	University and AFSCME did 	in 	fact agree
to 	a 	limitation 	on 	your 	right 	under 	Government 	Code 	section 	3567
in Article 	7, 	paragraph L, 	of 	the 	collective bargaining
agreement, 	which gave AFSCME 	full 	authority 	over 	"a 	grievance
appealed to arbitration" 	(emphasis 	added), 	regardless 	of whether
the 	grievance 	actually went 	to 	hearing.
I 	am 	therefore 	dismissing 	the 	charge 	based 	on the 	facts 	and
reasons 	contained 	in 	this 	letter 	and 	in my 	March 	27 	letter.
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
1This decision 	actually 	interpreted 	Government 	Code 	section
3543. 	The decision 	is 	applicable 	to Government Code 	section
3567, 	however, 	because the 	relevant 	statutory language 	is
virtually 	identical 	and 	the 	same 	policy 	considerations 	apply.

Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-246-H
April 27, 	1989
Page 3
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).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
Thomas J. AllenUOTT\l{)
(Allen
Regional 	Attorney
Attachment
cc: 	Susan Benjamin, 	Esq.

Of 	CALIFORNIA 	GEORGE 	DEUKMEJIAN
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los 	Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles. CA 90010-2334
(213)736-3127
March 27, 	1989
Carmen 	Michele 	Comstock
RE: 	WARNING LETTER, 	Unfair Practice 	Charge 	No. 	LA-CE-246-H,
Carmen Michele 	Comstock v. 	University of California, 	San
Diego
Dear Ms. 	Comstock:
In 	the 	above-referenced 	charge, 	you 	allege 	that 	the 	University 	of
California 	at 	San 	Diego 	(University) 	interfered with 	your 	right
to 	have 	a 	grievance 	processed under 	the 	collective 	bargaining
agreement between 	the 	university and 	the American 	Federation 	of
State, 	County and Municipal 	Employees 	(AFSCME). 	This 	conduct 	is
alleged 	to violate 	Government Code 	section 	3571 	(a) 	of 	the 	Higher
Education 	Employer-employee 	Relations 	Act 	(HEERA).
My 	investigation 	of 	this 	charge 	revealed 	the 	following
information.
You were 	employed 	by 	the 	University 	in 	a 	unit 	for 	which AFSCME
was 	the 	exclusive 	representative. 	The 	University dismissed 	you
from employment on February 	18, 	1986. 	AFSCME declined 	to 	carry
to 	arbitration 	three 	grievances 	leading up 	to 	your 	dismissal.
AFSCME did 	carry 	to 	arbitration a 	grievance 	filed 	on March 	7,
1986, 	challenging your dismissal 	itself.
In 	December 	1986 	an 	arbitration-hearing was 	scheduled 	for 	January
27, 	1987. 	AFSCME Council Representative 	Teresa 	Pascual-
Valladolid 	stated 	she 	would 	not 	represent 	you 	because 	you 	had
inquired 	about 	obtaining 	your 	own 	attorney. 	In 	order 	to 	give
your 	attorney 	time 	to prepare, 	Pascual-Valladolid 	said 	she 	would
obtain a 	continuance 	of 	the 	hearing, 	and 	she 	later 	told 	your
attorney 	and 	his 	secretary 	that 	she 	had 	taken 	the 	appropriate
steps. 	Your 	attorney could not 	take 	those 	steps 	himself, 	because
he 	had 	not 	been 	officially 	designated 	as 	representative 	by
AFSCME, 	but 	he 	had 	orally 	informed 	University 	Labor 	Relations
Officer 	Kerry 	Donnell 	that 	there was 	not 	enough 	time 	to 	prepare
for 	the 	hearing.
Pascual-Valladolid 	failed 	to request 	a 	continuance, 	as 	your
attorney 	learned when 	the 	arbitrator 	called 	him 	on 	the 	scheduled

Warning 	Letter
LA-CE-246-H
March 27, 	1989
Page 2
hearing date. 	Your attorney asked for. a new date, 	but 	the
arbitrator 	said that 	he would not be 	available until 	June 	and
suggested 	that 	the 	parties 	might want 	to 	seek another 	arbitrator.
Your attorney 	also 	spoke with 	Donnell 	on that day.
Two days 	later, 	on January 29, 	1987, 	Donnell told your attorney
for 	the 	first 	time 	that 	the 	University was 	taking 	the 	position
that the 	grievance was no 	longer arbitrable, 	because 	the 	hearing
could not be 	scheduled within 	180 	calendar days of 	the 	filing of
the appeal. 	Article 	7, 	paragraph P, 	of the collective bargaining
agreement 	provides 	in part 	that 	"the 	scheduling of 	the 	hearing
date 	for 	such 	arbitration must 	be 	accomplished no 	later 	than 	one
hundred 	eighty 	(180) 	calendar days 	from the 	date 	the 	grievance
was 	originally 	appealed to 	arbitration." 	Donnell 	stated 	the 	same
position in 	a letter dated January 28, 	1987. 	As 	a result, 	a new
grievance was 	filed on February 25, 	1987, 	regarding the
arbitrability of 	the 	previous 	grievance.
Your attorney meanwhile 	attempted to negotiate a 	settlement, 	but
none was 	reached that you 	could accept. 	AFSCME 	also 	attempted to
negotiate a 	settlement. 	By a letter dated March 28, 	1988, 	AFSCME
presented 	to you 	a 	settlement agreement that 	it and 	the
University had negotiated to resolve both grievances. 	The
settlement 	had 	been 	changed 	from 	an 	earlier 	proposed 	settlement
without your knowledge or consent, 	the 	University having
withdrawn 	a 	demand 	that you not 	seek 	future 	employment 	at 	the
University in exchange 	for AFSCME's withdrawal 	of- its 	demand 	that
certain documents 	be 	removed 	from your personnel 	file. 	AFSCME
told you that 	it 	felt that this was 	a 	fair 	settlement and 	"the
best 	settlement we 	can reach." 	It 	also told you that 	"we 	will
not 	pursue 	your 	case 	to 	arbitration" 	but 	that you 	could 	appeal
this decision 	to AFSCME's 	Executive 	Board.
You did 	appeal 	to the 	Executive 	Board, 	which 	finally decided 	not
to proceed with arbitration* on April 	24, 	1988. 	By a 	letter to
you dated May 	6, 	1988, 	AFSCME's 	Executive Director confirmed the
decision 	and 	stated 	in part 	as 	follows:
The 	Executive 	Board 	informed you 	that 	Council
10 	was 	not 	going 	forward with your
arbitration 	and 	encouraged 	you 	to 	sign 	the
agreement 	offered by 	the 	University. 	So
therefore, 	it 	is your responsibility to
contact 	the 	University 	regarding 	that
agreement. 	Council 	10 	is no 	longer handling
your case .

Warning 	Letter
LA-CE-246-H
March 27, 	1989
Page 3
By a letter dated June 	8, 	1988, 	you wrote 	to University Labor
Relations 	Officer 	Donnell 	indicating 	you had 	an 	attorney who
would contact him. 	By a 	letter dated June 	16, 	1988, 	Donnell
responded that, 	notwithstanding AFSCME's 	failure 	to 	sign a
written agreement, 	the 	University's 	position was 	that AFSCME 	and
the 	University had reached an agreement 	settling 	the 	grievances.
Donnell made reference to Article 	7, 	paragraph L, 	of the
collective bargaining agreement, 	which states 	in part as 	follows:
With regard to 	a 	grievance 	appealed 	to
arbitration, 	AFSCME 	shall have full authority
to settle, 	withdraw, 	or otherwise dispose of
any grievance 	brought 	on behalf 	of 	the 	Union
and/or on the behalf 	of 	employees. 	An
agreement to settle, 	withdraw, 	or otherwise
dispose 	of 	a grievance 	appealed 	to
arbitration 	reached by 	and 	between 	the
University and AFSCME 	shall 	be 	binding 	upon
employees 	represented 	by AFSCME.
Donnell 	stated 	that 	he would recognize AFSCME 	as 	your 	exclusive
representative 	and 	that 	neither 	you 	nor 	your 	attorney 	had
authority 	to 	contact 	him.
Based on the 	facts 	stated above, 	the 	charge 	fails 	to 	state 	a
prima facie 	case, 	for the reasons 	that follow.
Under Government Code 	section 3563.2 	(a), 	the Public 	Employment
Relations 	Board 	"shall 	not 	issue 	a 	complaint 	in respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice 	occurring 	more 	than
six months 	prior to the 	filing of 	the 	charge." 	Because 	your
charge was 	filed on October 24, 	1988, 	only allegations of unfair
practices occurring on or after April 	24, 	1988, 	are timely.
April 	24, 	1988, 	was 	the 	day AFSCME 	finally decided not to proceed
with 	arbitration. 	*
You have 	alleged that 	the 	University violated HEERA 	section 	3571 	,
(a) 	by interfering with your right 	to have 	your 	grievance
processed. 	In order 	to 	state 	a prima 	facie 	case 	of 	interference,
an 	employee 	must 	show that 	the 	employer's 	conduct 	caused 	harm 	or
potential 	harm 	to 	the 	employee's 	statutory 	rights. 	Carlsbad
Unified School 	District 	(1979) 	PERB Decision No 	89; 	Regents 	of
the 	University of California 	(Berkeley) 	(1983) 	PERB Decision No.
308-H.

Warning 	Letter
LA-CE-246-H
March 27, 	1989
Page 	4
An 	employee's 	individual 	statutory 	rights 	to 	grievance 	processing
are 	set 	forth 	in 	HEERA 	section 	3567, 	which 	states 	in part 	as
follows:
Any employee 	or 	group of 	employees may 	at 	any
time, 	either 	individually or through a
representative 	of 	their 	own choosing, 	present
grievances 	to 	the 	employer 	and have 	such
grievances 	adjusted, 	without 	the 	intervention
of the 	exclusive 	representative; 	provided,
the 	adjustment 	is 	reached prior to
arbitration. 	(Emphasis 	added.)
As 	the highlighted proviso 	indicates, 	when a grievance reaches
arbitration, 	an 	employee's 	individual 	statutory right to present
grievances 	and have 	them 	adjusted without 	the 	intervention 	of 	the
exclusive 	representative 	comes 	to an end. 	Consistent with this
proviso, 	the 	collective bargaining agreement between the
University 	and AFSCME 	gave 	AFSCME 	full 	authority 	to 	dispose 	of
any grievance 	appealed 	to 	arbitration, 	and the 	University did not
interfere with 	any 	statutory right 	you had by refusing to 	deal
directly with you or 	your 	attorney, 	or with anyone 	other 	than
AFSCME, 	with regard to the 	grievance.
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 must be 	filed with PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or withdrawal 	from 	you before 	April
5, 	1989, 	I 	shall dismiss 	your charge. 	If you have any questions,
please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
j/