Regents of the University of California (Higgins) (PERB 1058H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARY G. 	HIGGINS,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-392-H
PERB Decision No. 	1058-H
September 15, 	1994
Appearance: 	Mary G. 	Higgins, 	on her own behalf.
Before Blair, 	Chair; 	Garcia and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Mary G. 	Higgins
(Higgins) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	Higgins 	filed the unfair practice 	charge 	on
December 16, 	1993, 	alleging that the Regents of the University of
California 	(University) 	discriminated against 	her 	in violation of
section 	3571(a) 	of 	the Higher Education Employer-Employee
Relations Act 	(HEERA).1 After 	investigating 	the 	charge, 	the
'HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references are 	to 	the
Government Code. 	Section 3571(a) 	reads, 	in pertinent part:
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.
)
)
)
)
)
)
)
)
)
)
________________ )

Board agent 	dismissed her 	charge 	for 	failure 	to 	state 	a prima
facie violation of 	HEERA.
The Board has 	reviewed 	the 	entire 	record, 	including 	the
Board agent's warning and dismissal 	letters 	and Higgins' 	appeal,2
and we 	hereby affirm the 	dismissal.
JURISDICTION
The 	Board 	finds 	that 	it 	has 	jurisdiction 	in this 	case 	for
the 	following reasons: 	(1) 	Our review of 	the 	file 	indicates 	that
Higgins' 	charge was 	timely filed; 	(2) 	Higgins 	is an employee and
the University is 	an employer within 	the meaning of 	HEERA section
3562; 	(3) 	Higgins alleges a violation of HEERA section 3571(a);
and 	(4) 	PERB 	is not 	required to defer this action under the
parties' 	contractual grievance procedure.3
HIGGINS' APPEAL
Higgins 	appeals 	the dismissal 	on several 	grounds, 	which fall
into 	two main categories. 	The 	first 	category consists 	of
2No 	response 	to 	the appeal 	was 	filed by 	the University.
3Higgins' 	charge alleged 	that 	the University discriminated
against her 	in two ways: 	(1) 	by issuing her a negative
performance evaluation, 	and 	(2) 	by eliminating a job duty. 	The
contractual 	grievance 	and arbitration procedures 	were 	not
available 	for either of 	those 	disputes 	for 	the 	following 	reasons:
Disputes 	over negative 	ratings 	on a performance 	evaluation
are 	expressly 	excluded 	from the 	contractual 	grievance
procedure when, 	as in Higgins' 	case, 	the overall performance
rating is satisfactory. 	(CBA Art. 	10, 	sec. 	C.)
Although 	removal 	of 	a 	job duty based 	on union affiliation
was 	arguably grievable 	as 	a violation 	of Article 	4.A.2 	of
the 	CBA, 	Higgins 	could no 	longer grieve 	it when she 	filed
her unfair practice 	charge 	because 	the 	30-day 	contractual
deadline 	for presenting 	grievances 	had expired. 	Member
Johnson 	concurs 	in the 	result 	and 	finds 	that 	PERB has
jurisdiction based 	solely 	on 	the 	collective 	bargaining
agreement's 	(CBA) 	non-binding arbitration clause with
respect 	to the 	issues before 	PERB.
22

evidence 	that 	Higgins 	offers 	for the 	first 	time 	on appeal
regarding 	the 	credibility of Betty Yalich 	(Yalich).4 In 	the
second category, 	Higgins 	lists 	several 	errors 	that 	she believes
the Board agent made 	in analyzing her 	case.5
DISCUSSION
New Evidence 	Raised 	on Appeal
Higgins' 	appeal 	contains new evidence 	to support prior
allegations.6 PERB Regulation 	326357 describes 	the Board's 	scope
of 	review on appeal. 	Regulation 32635 	reads, 	in pertinent part:
(a) 	Within 20 	days 	of 	the date of 	service of
a dismissal, 	the 	charging party may appeal
the dismissal 	to 	the Board 	itself.
4Higgins 	alleged 	that 	she 	requested a 	job description
relevant 	to her charge prior to filing the 	charge, 	but 	the
University 	claimed 	that 	no 	such 	job 	description 	existed. 	On
appeal, 	Higgins 	alleges 	that 	she had recently asked 	for and
received such a job description; 	she argues 	that 	this 	chain of
events 	demonstrates 	the 	fifth 	factor 	in Novato Unified School
District 	(1982) 	PERB Decision No. 	210 	(employer's 	failure 	to
offer 	the 	employee 	justification at 	the 	time 	it 	took action or
the offering of exaggerated, 	vague, 	or ambiguous reasons).
However, 	she does 	not 	allege 	that 	the 	job description existed and
was 	hidden 	from her at 	the 	time 	she 	originally 	requested 	it;
although 	she hints 	that 	there was 	a bad motive 	on the
University's 	part by mentioning Yalich's 	credibility, 	she 	does
not make 	that 	accusation expressly.
5Briefly, 	they 	included her 	claim that 	the 	Board agent made
the 	following errors: 	(1) 	Inadequately analyzing her evidence of
"disparate 	treatment;" 	(2) 	Failing 	to accurately analyze a
certain phone 	conversation, 	relative 	to the negative 	item on
Higgins' 	performance evaluation; 	(3) 	Stating 	(in error) 	that
Yalich had discussed the 	change 	in Higgins' 	job duty before
implementing 	it; 	and 	(4) 	Erroneously concluding 	that 	Higgins had
failed to prove 	the nexus 	element 	of 	a prima 	facie 	case.
6The new evidence, 	described above in the appeal, 	has
"recently 	come 	to 	light" 	and relates 	to 	the 	inferences 	to be
drawn 	from the University's 	failure 	to provide a 	job 	description
before 	Higgins 	filed her 	charge.
7PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
33

(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
(Emphasis 	added.)
Interpreting this 	regulation, 	PERB has been reluctant 	to
find 	that 	good 	cause 	existed 	to allow a party 	to 	raise 	new
allegations 	or new evidence 	for the 	first 	time 	on appeal.8 The
reason 	for 	this 	reluctance 	is 	stated 	in 	South 	San 	Francisco
Unified School District, 	supra:
The purpose of 	PERB Regulation 32635(b) 	is 	to
require 	the 	charging party 	to present 	its
allegations 	and 	supporting 	evidence 	to 	the
Board agent 	in the 	first 	instance, 	so that
the 	Board agent 	can 	fully 	investigate 	the
charge prior to deciding whether 	to 	issue 	a
complaint 	or dismiss 	the 	case.
Furthermore, 	as 	the Board noted 	in California School
Employees Association 	(LaFountain). 	supra. 	when a party has 	the
opportunity 	to 	cure defects 	in his prima 	facie 	case at 	earlier
stages and does not 	do so, 	the Board is 	reluctant 	to allow him to
raise 	such facts or evidence later. 	Higgins' 	warning letter
contained 	the 	standard language which 	stated that 	if 	there were
any 	factual 	inaccuracies 	in 	the warning 	letter 	or any additional
facts 	which would correct 	the 	deficiencies 	explained 	therein, 	she
should amend the 	charge 	accordingly; 	she 	did not.
Since Higgins has not made any showing of good cause, 	we
cannot 	consider the 	"new evidence" 	portion of her appeal.
8See, 	e.g., 	South San Francisco Unified School District
(1990) 	PERB Decision No. 	830; 	Association of California State
Attorneys 	(Winston) 	(1992) 	PERB Decision No. 	931-S; 	California
School Employees Association 	(Watts) 	(1993) 	PERB Decision
No. 	1008; 	California State Employees Association 	(Hackett) 	(1993)
PERB Decision No. 	1012-S; 	California School 	Employees Association
(LaFountain) 	(1992) 	PERB Decision No. 	925. 	In all these cases,
the 	Board 	found 	no 	good 	cause 	existed because 	no 	explanation was
offered.
4

Prima 	Facie 	Case
The 	remainder of Higgins' 	appeal 	constitutes an attempt 	to
address 	the 	deficiencies 	in her case by 	challenging 	the Board
agent's analysis. 	For example, 	Higgins 	claims 	that 	the Board
agent 	"did not deal with the disparate treatment" 	element, 	as
evidenced by her statement 	in the amended charge 	that Dr. 	Stephen
Cohen 	(Cohen) 	had ordered her on occasion 	"to 	call 	up some
companies 	and yell 	at 	them." 	It 	is 	not 	clear how this
allegation, 	even if true, 	constitutes 	"disparate treatment" 	for
purposes 	of 	the Novato test, 	since 	she does 	not allege 	that 	other
people were 	treated differently by Cohen; 	nor does 	she 	specify
how that 	is 	retaliatory behavior; 	nor does 	she provide 	the nexus
element. 	Higgins' 	statement 	of 	the 	incidents 	still 	falls 	short
of 	establishing a prima 	facie 	case.
Higgins 	also 	claims 	that 	the Board agent 	"misanalyzed" 	her
words 	that 	led to 	the 	rudeness 	complaint. 	Review of 	the 	file
does 	not 	reveal 	any evidence 	that 	his 	analysis 	was 	incorrect 	or
unreasonable; 	hence, 	we conclude that 	she simply disagrees with
the Board agent's 	characterization of 	the 	event.9
Finally, 	Higgins offers a 	"common denominator" 	theory,
urging 	the 	Board 	to 	infer 	retaliatory 	intent 	from the mere 	fact
that 	since many of 	the 	same people 	communicated 	frequently during
9Higgins' 	appeal 	also claims 	that 	the Board agent was
misinformed 	regarding whether Yalich discussed 	the 	change 	in 	job
duty with her before 	implementing 	it. 	Even 	if 	the Board agent
misinterpreted the actual 	order of 	events, 	it did not affect 	the
validity of 	the dismissal, 	because 	it 	is not 	the notice or lack
of notice 	that was at 	issue. 	Rather, 	what 	the Board agent was
assessing 	was 	whether Higgins 	had 	successfully 	established 	a
retaliatory motive by reciting 	this 	chain of 	events. 	We agree
that 	she had not.
55

the 	course 	of business, 	they shared information about Higgins 	and
acted upon 	it. 	Although a vague 	implication emerges 	of 	concerted
activity, 	merely placing persons 	in common situations 	does not,
without more, 	establish either that 	they 	shared 	information or
that 	they retaliated against 	Higgins. 	It was 	her obligation 	to
allege those 	facts, 	and she has not done 	so.
ORDER
The 	Board hereby AFFIRMS 	the 	Board agent's 	dismissal 	of 	the
unfair practice 	charge in Case No. 	SF-CE-392-H.
Member Johnson 	joined 	in 	this 	Decision.
Chair Blair's 	concurrence and dissent begins 	on page 	7.
66

BLAIR, 	Chair, 	concurring and dissenting: 	This 	case 	is
before 	the 	Public 	Employment 	Relations 	Board 	(PERB or Board) 	on
appeal by Mary G. 	Higgins 	(Higgins) 	of a Board agent's dismissal
of her unfair practice charge. 	In her charge, 	Higgins alleged
that 	the 	Regents 	of 	the University of 	California violated 	section
3571(a) 	of 	the 	Higher Education Employer-Employee Relations Act
(HEERA)1 by 	issuing her a negative performance 	evaluation and
eliminating a 	job duty. 	I 	concur 	in the determination that
Higgins 	failed to allege 	facts 	sufficient 	to 	establish a prima
facie case. 	I would, 	therefore, 	affirm the Board agent's
dismissal of Higgins' 	unfair practice charge.
I 	join Member 	Johnson 	in 	expressly 	rejecting Member Garcia's
unsupported 	theory 	on 	PERB's 	jurisdiction as 	contrary 	to 	Board
precedent. 	Member Garcia asserts 	that 	PERB has 	jurisdiction
in this 	case because Higgins 	failed to 	comply with the 	3 0-day
contractual 	time 	frame to 	file a grievance. 	In Eureka City
School District 	(1988) 	PERB Decision No. 	702, 	the Board held
that 	PERB 	does 	not 	obtain 	jurisdiction 	to 	consider a 	dispute
which 	is 	subject 	to 	the 	contractual 	grievance 	and arbitration
11HEERA	HEERA section 3571 states, 	in pertinent part:
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.
77

procedure where 	the 	grievant 	failed 	to meet 	contractual 	time
lines.
PERB properly has 	jurisdiction 	in 	this 	case because
Article 4, 	section E.2. 	of 	the effective 	collective bargaining
agreement prohibits 	the parties 	from submitting 	the 	subject 	of
this 	dispute 	to 	final 	and binding arbitration. 	(Lake 	Elsinore
School District 	(1987) 	PERB Decision No. 	646.)
88

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
April 11, 	1994
Mary G. 	Higgins
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Mary G. 	Higgins v. 	Regents 	of 	the University of 	California
Unfair Practice 	Charge No. 	SF-CE-392-H
Dear Ms. 	Higgins:
The 	above-referenced unfair practice 	charge, 	filed on December
16, 	1993 and amended on February 8, 	1994, 	alleges that the
Regents 	of 	the University of 	California 	(University)
discriminated 	against 	Mary 	Higgins 	by 	issuing 	her 	a 	negative
performance 	evaluation and 	eliminating a 	job duty. 	This 	conduct
is 	alleged 	to violate Government 	Code 	section 3571(a) 	of 	the
Higher Education Employer-Employee 	Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated January 28, 	1994,
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
February 7, 	1994, 	the charge would be dismissed. 	You were
granted an extension 	to 	file 	an amended 	charge. 	On February 	8,
1994, 	you 	filed an amended 	charge.
The 	amended 	charge 	contained additional 	information 	in 	response
to 	the 	deficiencies 	noted 	in 	the 	attached 	letter dated
January 28, 	1994 	letter. 	With regard to 	the 	first 	of 	the 	two
telephone 	calls 	which 	resulted 	in 	the 	criticism 	in 	the 	evaluation
for discourteous 	behavior, 	the amended charge alleges 	that
Higgins 	represented 	a 	grievant 	involved 	in a dispute 	with 	Kathy
Balestreri 	over a 	disciplinary action. 	The employee 	reported to
Balestreri 	but 	worked primarily 	for an Assistant 	Hospital
Director. 	The Assistant 	Hospital 	Director had approached the
grievant 	and 	told 	her 	that 	she 	should withdraw the 	grievance
because 	Balestreri 	would 	retaliate 	against 	her. 	In the 	telephone
conversation which prompted 	the 	report 	from Balestreri 	to 	Yalich,
Balestreri 	made 	an unsolicited 	call 	to Higgins 	returning a
message left 	for her superior, 	Bill 	Kerr, 	Hospital Director,
regarding a union 	complaint 	about 	employee 	health benefits.
/
,/

Dismissal, etc.
SP-CE-392-H
April 11, 	1994
Page 	2
Balestreri said, 	"I 	see you have a call 	into Bill, 	can I help
you?" 	Higgins 	said 	"No. 	If 	I wanted to 	speak to you 	I would
have 	called you." 	Higgins 	then hung up. 	Higgins 	later 	told
Yalich that 	she 	denied 	that 	she hung up 	the telephone. 	The
amended 	charge 	alleges 	that 	Yalich 	conducted 	only a 	cursory
investigation of 	the matter. 	Higgins 	alleges 	that 	she 	told
Yalich 	that 	she 	should 	"check" 	out 	the 	situation with 	the
Assistant Director. 	No 	other 	facts 	supporting 	the 	contention of
cursory 	investigation are 	alleged, 	although Higgins 	does make 	an
assertion 	that 	the 	grievant 	was 	being 	intimidated 	and 	that 	this
inappropriate 	conduct 	suggests 	a motive 	for 	the 	criticism by
Balestreri.
Evidence 	of 	Yalich's 	anti-union motivation 	for her 	inclusion of
Balestreri's 	criticism is 	lacking. 	Yalich did not 	have 	the 	same
motive 	to 	retaliate 	against 	Higgins 	as 	Balestreri 	apparently did.
The 	grievance was 	not 	filed against 	Yalich. 	There 	is 	no 	evidence
that 	Yalich had knowledge 	of 	the 	grievance. 	There 	is 	only
evidence 	that 	Yalich knew 	that 	Higgins 	was 	a union
representative. 	There 	is 	no 	evidence 	that 	Yalich has
demonstrated anti-union bias 	in 	the past 	so as 	to 	support 	an
inference 	that 	she 	would 	have 	desired 	to 	support 	Balestreri's
version of 	the events 	regardless 	of the 	facts. 	Higgins admits 	in
the 	charge 	that 	she 	hung up 	on Balestreri 	when Balestreri 	asked
if 	should 	could 	respond 	to Higgins' 	complaint about 	employee
health benefits 	- - 	a matter which Higgins believed was of no
concern to Balestreri. 	Higgins does not allege 	that 	she
explained 	to 	Yalich 	the 	surrounding 	circumstances 	of 	her
relationship 	with 	Balestreri 	which might 	have 	justified 	further
investigation. 	Even if 	she had, 	the level 	of 	investigation
expected 	to 	support 	an 	informal 	adverse 	comment 	in an evaluation
would not be 	high. 	There 	is 	no evidence 	that Yalich 	failed to
elicit 	favorable 	information 	from Balestreri 	in her 	investigation
of 	the 	incident.
The 	amended 	charge 	also 	contains 	information concerning 	the
second 	telephone 	call 	which prompted 	criticism of 	Higgins'
telephone manners. 	Higgins 	called to 	complain to David Odata,
Assistant Director 	for Medical 	Center Human Resources, 	about 	the
distribution of 	a payroll 	code 	number to various 	supervisors.
This 	number 	had 	traditionally been used 	for employees 	who 	had
been 	transferred 	to 	the Mt. 	Zion 	facility after 	the University
acquired the 	site. 	The 	employees wanted to retain the ability to
have 	their 	checks 	picked up by Higgins 	using the 	exclusive 	code
number. 	When the number was 	given to other supervisors, 	Higgins
would pick up 	checks 	for 	employees 	for whom she 	did not 	have
pick-up authorization. 	Odata's 	office was 	not 	successful 	in
ceasing 	the 	supervisor's use 	of 	the 	code number. 	Therefore,
Higgins 	called Odata 	to 	complain. 	Odata 	reported to Yalich that
( 	(

Dismissal, etc.
SF-CE-392-H
April 11, 	1994
Page 3
Higgins 	had 	called 	one 	of 	the 	supervisors 	"stupid." 	Higgins
alleges 	that 	she 	did not 	use 	this word, 	but does acknowledge
saying, 	"She doesn't know what 	she 	is doing."
The 	amended 	charge 	alleges 	that a 	third 	complaint 	was made by
Donys 	Powell. 	Yalich 	raised 	it with Higgins 	prior 	to 	the
evaluation. 	Powell 	had apparently 	complained 	that 	Higgins 	was
rude 	in a 	conversation 	concerning 	the 	renewal 	of 	a 	contract with
an outside vendor. 	Higgins 	denied being 	rude. 	Yalich said that
she would 	investigate. 	She 	did not 	tell 	Higgins 	of 	the 	results
of 	the 	investigation. 	The 	evaluation 	form indicates 	that 	only
two 	complaints 	were 	cited by Yalich 	in her discussion of 	the
issue with Higgins. 	The 	University 	indicated 	to 	the undersigned
that 	Powell 	did not 	want 	to 	go 	on 	record 	regarding 	the matter.
Higgins 	does 	not 	allege 	that 	this 	incident was 	one 	of 	the 	two on
which Yalich relied. 	The 	charge 	alleges 	that 	the 	two 	incidents
involved 	individuals 	against 	whom Higgins 	had grievances. 	There
is 	no allegation 	that 	any grievance 	or 	complaint 	had been lodged
against 	Powell. 	Higgins 	does allege 	that at 	the 	time Yalich
asked her about 	this 	incident, 	she 	told Higgins 	that 	she wanted
to 	recommend Higgins 	for 	a 	special 	performance award. 	Higgins
was 	not 	nominated 	for 	the 	award.
The 	allegations 	regarding 	the 	telephone 	complaints 	are
insufficient 	to 	establish 	the 	cursory 	investigation element, 	or
any other element, 	supporting unlawful motivation.
The 	amended 	charge 	also 	contains 	a 	letter 	from Higgins 	to Yalich
complaining about 	the 	removal 	of a job duty, 	which the 	charge
alleges 	was 	retaliatory. 	Higgins 	had been assigned the duty of
processing 	certain 	documents 	referred 	to as 	"Requests 	for 	Payroll
Action Forms." 	Higgins 	alleges 	that 	this was 	implemented without
notice. 	However, 	she also acknowledges 	that, 	prior to
implementation of 	the 	change, 	Yalich asked Higgins 	if 	she
objected. 	Yalich responded 	to Higgins' 	letter, 	explaining why
the 	change 	was 	made 	and 	indicating 	that 	further modifications 	of
the 	processing process 	could be made 	or a 	return 	to 	the previous
process 	explored 	if 	the 	problems 	raised by Higgins 	persisted.
The 	allegations 	with regard 	to 	the 	removal 	of 	the 	job duty 	fail
to 	establish evidence 	of 	unlawful motivation.
The 	amended 	charge 	also 	refers 	to 	other 	conduct 	of 	Yalich and 	the
University which 	is 	claimed 	to 	demonstrate 	an anti-union bias.
This evidence, 	which is not 	recited here, 	has been reviewed, 	but
found 	lacking 	in 	probative 	value.
)	 	,)

Dismissal, etc.
SF-CE-392-H
April 11, 	1994
Page 	4
Based 	on 	the 	analysis 	of 	the 	new evidence 	above 	and 	the 	facts 	and
reasons 	contained 	in my January 28, 	1994 	letter, 	the 	charge 	fails
to 	state 	a prima 	facie violation and 	therefore 	is 	dismissed.
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
( 	(

Dismissal, etc.
SF-CE-392-H
April 11, 	1994
Page 5
be accompanied by proof 	of 	service of 	the request upon each
party. 	(Cal. Code of Regs., 	tit. 8, sec. 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,
ROBERT THOMPSON
Deputy General 	Counsel
By
DONN GINOZA-o -
Regional Attorney
Attachment
cc: 	Lawrence W. 	Hanson
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATlONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
January 28, 	1994
Mary G. 	Higgins
Re: 	WARNING LETTER
Mary G. Higgins v. 	Regents of the University of California
Unfair Practice Charge No. 	SF-CE-392-H
Dear Ms. Higgins:
The above-referenced unfair practice charge, 	filed on December
16, 	1993, 	alleges that the Regents of the University of
California discriminated against Mary Higgins by issuing her a
negative performance evaluation and eliminating a job duty. 	This
conduct is alleged to violate Government Code section 3571(a) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).
Investigation of 	the charge revealed the following. 	Mary G.
Higgins 	is employed by the University as an Administrative
Assistant III in the Administration Section at the University of
California at San Francisco 	(UCSF) 	Clinical Laboratories. 	Her
supervisor is Betty Yalich, 	Management Services Officer III. 	Her
duties generally involve budget and accounting matters,
purchasing, 	billing, 	and personnel and payroll functions. 	She
has engaged in protected activities over a period of years
through her involvement with the American Federation of State,
County and Municipal Employees 	(AFSCME) 	as a job steward and
member of the bargaining team.
The factual statement of the charge states as follows:
My supervisor Betty Yalich - 	UCSF Clinical
Labs gave me an 	"unsatisfactory" 	rating on
one 	item of my P-E 	[performance evaluation]
that I believe was related to my work as a
steward. 	The remarks were in the 	"overall
evaluation" and 	"complies with University
Telephone and House Standards."
In the course of my job, 	I handle thousands
of calls a year. 	Two calls which are the
; 	__ ----J

C
Warning 	Letter
SF-CE-392-H
January 28, 	1994
Page 2
basis of the evaluation rating were either
individuals against whom grievances have been
filed or their advocate. 	I believe their
characterization of the 	circumstances and the
subsequent evaluation are 	in retaliation to
[sic] 	my steward/bargaining team union work.
Further, 	one job duty was removed from me
without any explanation, 	which I also believe
is in retaliation.
The 	"overall 	evaluation" 	section of the evaluation 	(which grades
her "more than satisfactory") 	states as follows:
For the past two years Mary has single-
handedly managed the business office for
extensive periods of time. 	Her ability to
juggle many responsibilities and to quickly
dispense with large volumes of work, 	as well
as her willingness to come in on weekends and
holidays as work volume dictates, 	has
resulted in significant savings 	for the
Hospital. 	Her efforts and talents are
commendable. 	Further, 	her sense of
responsibility regarding ETR and payroll
issues, billing problem resolution, and
benefits 	information dissemination is an
asset to the staff and to the department.
The one detraction from Mary's performance
has been complaints 	from individuals
regarding the style of 	communication they
have received from Mary. 	She has been
perceived as angry and discourteous.
[0]bservance of 	the University House and
Telephone Standards 	is 	required by all
employees.
Overall, 	Mary's performance has been
impressive and her efforts invaluable in
managing the laboratory's business office.
The University does not deny that Higgins has participated in the
activities of AFSCME and that her supervisor had knowledge of
these activities.
(

Warning Letter
SF-CE-392-H
January 28, 	1994
Page 3
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.
To demonstrate a violation of HEERA section 3571(a), 	the charging
party must show that: 	(1) 	the employee exercised rights under
HEERA; 	(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 Dec. No. 	210; Carlsbad Unified School
District 	(1979) 	PERB Dec. No. 	89; Department of Developmental
Services 	(1982) 	PERB Dec. No. 228-S; California State University
(Sacramento) 	(1982) 	PERB Dec. No. 211-H.)
Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, without more, demonstrate the
necessary connection or 	"nexus" between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Dec. No. 	227.) 	Facts establishing one or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and standards
when dealing with the, employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's cursory investigation of the employee's misconduct;
(5) 	the employer's failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District,
supra PERB Dec. No. 210; 	North Sacramento School District 	(1982)
PERB Dec. No. 	264.) 	As presently written, 	this charge fails to
demonstrate any of these 	factors and therefore does not state a
prima facie violation of EERA section 3543.5(a).
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 additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	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
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 February 1. 	1994. 	I

f
Warning 	Letter
SF-CE-392-H
January 28, 	1994
Page 4
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney