Regents of the University of California (Chan) (PERB 1069H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NING-PING 	CHAN,
Charging 	Party,
v.
REGENTS 	OF 	THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-398-H
PERB Decision No. 	1069-H
November 23, 	1994
Appearance: 	Ning-Ping Chan, 	on her own behalf.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Ning-Ping 	Chan
(Chan) 	of a Board agent's dismissal 	(attached hereto) 	of her
unfair practice 	charge. 	In her charge, 	Chan alleged that 	the
Regents 	of 	the 	University of 	California violated 	section 	3571
of 	the Higher Education Employer-Employee Relations Act 	(HEERA)1
by undertaking various 	discriminatory 	acts 	against 	her.
'HEERA
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________________ )
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1HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
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.

The Board has 	reviewed Chan's appeal, 	the warning and
dismissal 	letters, 	and Chan's 	original 	and amended charges.
The Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
DISCUSSION
PERB Regulation 32635(a)2 provides 	that an appeal 	of 	the
dismissal 	of 	a 	charge 	shall:
(1) 	State the specific 	issues 	of procedure,
fact, 	law or rationale to which the appeal 	is
taken;
(2) 	Identify the page or part 	of 	the
dismissal 	to which each appeal 	is 	taken;
(3) 	State 	the grounds 	for each 	issue 	stated.
On appeal, 	Chan simply asserts 	that 	the Board agent 	failed
to address 	factual 	inaccuracies 	in 	the warning 	letter based 	on
the 	information provided 	in her 	first 	amended 	charge. 	This
appeal 	does 	not 	comply with PERB Regulation 32635 	as 	it 	does 	not
identify any 	specific 	factual 	error or address 	the 	timeliness 	of
her unfair practice 	charge.
The 	Board has 	held 	that 	compliance 	with 	regulations
governing appeals 	is 	required 	to afford 	the 	respondent 	and 	the
Board with an adequate 	opportunity 	to address 	the 	issues 	raised,
and noncompliance will warrant dismissal 	of 	the appeal. 	(Oakland
Education Association 	(Baker) 	(1990) 	PERB Decision No. 	827.) 	The
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

Board, 	therefore, 	rejects 	the appeal 	for failure to comply with
PERB regulations.
ORDER
The unfair practice charge 	in Case No. 	SF-CE-398-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle and Garcia 	joined 	in 	this Decision.
3
3

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
May 31, 	1994
Ning-Ping 	Chan
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Ninq-Ping Chan v. 	Regents 	of 	the University of 	California
Unfair Practice Charge No. 	SF-CE-398-H
Dear Ms. 	Chan:
The above-referenced unfair practice 	charge, 	filed on April 	7,
1994, 	alleges 	that 	the Regents of 	the University of California
(University) 	miscalculated Ning-Ping Chan's years 	of professional
service, 	disciplined her 	for participating 	in union activities^
demanded her 	resignation, 	failed 	to address an issue 	in a
grievance, 	and discriminated against 	her because 	of 	her race,
sex, 	and national 	origin. 	This 	conduct 	is alleged to violate
Government 	Code 	section 	3571 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated May 18, 	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 May
26, 	1994, 	the charge would be dismissed. 	On May 31, 	1994, 	you
filed 	a 	five 	page 	letter and 	submitted 	an amended 	charge by
facsimilie 	transmission 	containing 	additional 	factual 	allegations
and corrections to the May 18, 	1994 letter.
The 	additional 	allegations 	fail 	to establish that 	the 	charge 	is
timely 	filed. 	Chan asserts 	that 	she 	did not know of 	or grieve
the 	failure 	to grant 	a 	three-year appointment 	in her April 	18,
1993 	grievance, 	but 	that 	she only grieved the failure of the
University 	to perform a post-six evaluation. 	The 	original 	charge
contains 	copies 	of 	three grievances which appear to have been
filed in 	1993. 	Each form includes 	the date 	"4-18-93" 	after the
section 	"Date 	of 	occurrence 	or date grievant had knowledge 	of
alleged violation." 	While 	the 	grievances 	do not 	specifically
allege 	the denial 	of a three-year appointment, 	it appears 	that
the 	reason why 	this was 	not 	alleged is because 	two conditions
precedent 	to a three-year appointment are required: 	(1) 	a
University determination 	of 	a 	continuing need 	for 	instruction 	in
the employee's 	field, 	and 	(2) 	a favorable evaluation conducted

C
Dismissal, etc.
SF-CE-398-H
May 31, 	1994
Page 2
"in accordance with applicable 	campus 	review procedures 	in effect
at the time." 	(Art. 	VII, 	sec. 	C.2(a); 	see also Art. 	VII, 	sec.
F.)
Nevertheless, 	the grievances also 	reflect 	an attempt 	to plead the
denial 	of 	a 	three-year appointment 	in the 	alternative. 	In the
second grievance, 	signed by Chan on August 	6, 	1993, 	under the
section asking 	the 	grievant 	to 	state 	the 	action being grieved,
the 	form contains 	the 	following statement: 	"in 	1991 when grievant
was 	incorrectly 	informed by UCB 	that 	the number of her years 	of
accumulated 	service 	would not 	trigger 	the 	three-year appointment
required by 	the 	contract." 	Chan's 	assertion clearly 	implies
awareness 	of 	the University's 	improper denial 	of 	a 	three-year
appointment. 	In addition, 	the grievance 	specifically cites
Article VII, 	"Appointment," 	section 1, 	which provides, 	in
subsection 	(b), 	that reappointments 	shall be made 	for three year
periods 	for 	those 	reappointments 	commencing after 	six years 	of
service. 	Chan received a post-six year appointment 	for 	only one
year, 	which ended in the 	spring of 	1993.
In the third grievance, 	signed by Chan on November 29, 	1993, 	a
factual 	summation of 	the grievance and the 	time 	of 	the 	contract
violation states, 	in pertinent part:
The 	grievant 	first had knowledge 	of 	the
extent 	of 	UC's 	contractual 	violation on
4-18-93. 	The UC-AFT 	filed a 	formal 	grievance
on her behalf 	in a 	timely manner on
5-18-93. 	This 	is 	in accordance with the
Grievance 	Procedure 	listed 	in 	the MOU. 	She
simply did not 	know 	that 	the 	University was
required by the MOU to give her a 	three-year
contract 	at 	that 	time until 	4-18-93.
Therefore 	she 	could hardly have 	filed a
grievance 	earlier. 	Based on her post 	six
year service 	(Ms. 	Joan Spangler 	informed her
that 	she 	had accumulated 5.5 	year 	[sic] 	of
service by December 1991), 	all along she
thought 	she was being 	evaluated as 	Current
Long-Term Appointee. 	Neither the number of
net 	total years 	of her service nor the
termination date 	is 	subject 	to 	specification
in an appointment 	letter 	to 	the 	extent 	to be
inconsistent with the MOU 	[sic].
Chan also asserts 	that 	she did not 	know 	that 	the 	University had
taken 	the position 	of 	denying her 	credit 	for 	service 	in 	certain
titles until 	the University prepared its October 	14, 	1993 	Step
III 	response 	to 	the grievance.

Dismissal, etc.
SF-CE-398-H
May 31, 	1994
Page 3
While 	it may be alleged that 	Chan was not 	aware 	of 	the basis 	of
the University's 	calculation, 	this does 	not 	cure 	the 	timeliness
defects with 	the 	current 	charge. 	Chan has 	not 	established that
she did not 	know, 	or did not have 	reason to know, 	of 	the
University's violation of her rights prior to October 14, 	1993.
(Regents 	of 	the University of California 	(1983) 	PERB Dec. 	No.
369-H.)
Chan 	also alleges 	that 	the 	University 	interfered with her 	right
to process 	a grievance by asking 	to have her grievance moved
directly 	to 	Step 	III 	and by 	rewarding Chan's 	grievance
representative with a promotion, 	"within six months 	of 	4-7-94."
These 	allegations 	fails 	to 	state 	a prima 	facie violation.
(Calrsbad Unified School District 	(1979) 	PERB Dec. 	No. 	89;
Regents 	of 	the University of California 	(1983) 	PERB Dec. 	No.
308-H.)
Therefore, 	I am dismissing the 	charge based on the 	facts 	and
reasons 	stated above and 	those 	contained in my May 18, 	1994
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. 	(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"

Dismissal, etc.
SF-CE-398-H
May 31, 	1994
Page 	4
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.)
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
Regional 	Attorney
IN GINOZA
Attachment
cc: 	Debra Harrington
•

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
May 18, 	1994
Ning-Ping 	Chan
Re: 	WARNING LETTER
Ninq-Ping Chan v. 	Regents 	of 	the University of 	California
Unfair 	Practice 	Charge No. 	SF-CE-398-H
Dear Ms. 	Chan:
The above-referenced unfair practice 	charge, 	filed on April 	7,
1994, 	alleges 	that 	the Regents 	of 	the University of 	California
(University) 	miscalculated Ning-Ping Chan's years 	of professional
service, 	disciplined her 	for participating 	in union activities,
demanded her resignation, 	failed to address 	an 	issue 	in a
grievance, 	and discriminated against 	her because 	of her race,
sex, 	and national 	origin. 	This 	conduct 	is alleged to violate
Government 	Code 	section 	3571 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Ning-Ping
Chan began 	teaching Chinese 	at 	the University of 	California at
Berkeley in the 	fall 	of 	1971. 	Over the next 	twelve or more
years, 	she 	taught 	Chinese 	for at 	least 	18 	quarters 	in the East
Asian Languages Department. 	This 	service 	qualified her for the
benefits 	under the Memorandum of Understanding 	(MOU) 	for the
bargaining unit 	of 	non-Senate 	instructors, 	represented by the
University Council 	- 	American Federation of Teachers 	(UC-AFT).
During a portion of 	this 	instructional 	time 	she was 	also pursuing
an 	advanced 	degree.
On September 17, 	1991, 	Chan filed a grievance under the UC-AFT
MOU after 	she was 	notified 	that 	her medical 	benefits 	coverage had
lapsed due 	to a break in service. 	The 	charge does 	not 	indicate
how 	this 	grievance 	concluded.
Sometime 	in approximately October 	1992, 	the University also
informed 	Chan 	that 	she 	would not 	be 	receiving a 	three-year
appointment 	because 	she 	had only 	5.5 	years 	of 	qualified service.
This 	constituted a violation 	of 	the UC-AFT MOU and 	the 	rights 	of
post-six-year appointees. 	The University also 	failed to 	conduct
a performance 	evaluation prior 	to November 	1992, 	as 	required by
the MOU.
In July 	1993, 	the University sent 	Chan a 	form requesting a
forwarding address, 	which Chan 	completed and returned. 	The 	form
was 	a Notice 	of 	Resignation Form, 	which 	the University apparently

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Warning 	Letter
SF-CE-398-H
May 18, 	1994
Page 	2
later asserted 	operated 	to 	deprive 	Chan 	of 	continuing 	employment.
Chan 	filed a grievance protesting 	these 	actions 	on May 	18, 	1993
and amended 	it 	on August 	6, 	1993. 	She was 	represented by Mary
Ruth Gross 	of UC-AFT. 	A central 	issue 	in 	the dispute 	concerned
whether 	time 	spent 	teaching while 	a 	graduate 	student 	in 	the 	title
of Associate 	should 	count 	towards 	the 	six-year 	service
requirement. 	Based on the 	5.5 	years 	of 	service 	calculation,
which Chan 	chose not 	to dispute, 	she 	accepted a 	short 	term
appointment 	in reliance on the 	incorrect 	calculation. 	When that
term was 	completed 	she 	did not 	receive 	a 	three-year appointment
and as a 	consequence 	filed her grievance. 	In an October 14, 	1993
letter to Chan, 	responding to her grievance at 	Step III 	of 	the
grievance procedure, 	University Labor Relations Manager Debra
Harrington 	contended 	that 	the 	grievance 	was 	not 	timely 	filed
because 	it 	should have been 	filed within 	six months 	after Chan
was 	notified of 	the 	5.5 	year 	calculation. 	Harrington also
refused 	to agree 	that 	the 	5.5 	year 	calculation was 	incorrect.
These 	actions 	form the basis 	for Chan's 	claim that 	the University
misrepresented her years 	of 	service.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state a prima 	facie violation of 	the HEERA.
Of 	the various 	allegations 	listed in the 	charge, 	PERB has
jurisdiction 	only 	over 	the 	claim that 	the 	University disciplined
Chan for participating in union activities. 	(See Gov. 	Code, 	sec.
3563.2(b); 	Oxnard School District 	(1988) 	PERB Dec. No. 	667 	[no
jurisdiction 	to 	enforce 	collective 	bargaining 	agreements 	or 	other
statutory schemes].) 	Under section 3571(a), 	the University is
prohibited 	from discriminating 	against 	employees 	because 	of 	the
exercise 	of 	rights guaranteed by the 	HEERA. 	Such 	rights 	include
the 	right 	to present 	grievances 	through an 	employee 	organization
such as UC-AFT. 	(Gov. 	Code, 	sec. 	3567.)
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 	charge does allege protected activity, 	it 	is unclear
what 	form the 	reprisals 	or discrimination 	took. 	The 	charge 	only
(

Warning 	Letter
SF-CE-398-H
May 18, 	1994
Page 3
alleges 	that the University 	"disciplined" 	Chan. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32615(a)(5) 	["clear and concise" 	statement of
conduct 	constituting unfair practice 	required].) 	It 	is 	not 	clear
who disciplined 	Chan or 	that 	that 	person had knowledge 	of 	her
protected activities. 	The 	charge 	does 	not 	establish that 	these
reprisals 	took place within 	six months 	of 	the 	filing 	of 	the
charge 	(i.e., 	on or after October 7, 	1993) 	as 	required by HEERA
section 3563.2(a). 	Assuming that 	the 	reprisals 	involved the
failure 	to grant 	a 	three year appointment 	beginning 	in 	the 	fall
of 	1993 	and the 	"forced resignation," 	these actions 	occurred
before October 	7, 	1993. 	The only conduct 	that 	appears 	to be
timely is 	the October 14, 	1993 	letter from Debra Harrington
responding 	to 	Chan's 	grievance at 	Step 	III 	of 	the grievance
procedure.
In a 	letter to 	the undersigned dated May 9, 	1994, 	Chan asserts
that 	the 	charge 	is 	timely for the 	following reasons: 	(1) 	the
University had never disclosed a basis 	for 	its 	calculation of
service until 	Harrington wrote 	the October 	14, 	1993 	Step 	III
response to the grievance; 	(2) 	Chan is 	entitled to challenge the
assumptions 	that 	underlie 	the University's 	statements 	each 	time 	a
contact occurs; 	(3) 	in May 1993, 	Joan Spangler, 	a University
administrator 	involved 	in the 	dispute 	asserted 	to UC-AFT
representative Gross 	that 	she and Chan agreed 	that 	Chan did not
have 	the 	necessary 	time 	as 	a 	lecturer 	to 	qualify 	for a 	three-year
appointment 	but 	that 	she would 	"look 	into 	the 	issue 	of 	whether
the hiring procedure 	for 	the 	full-time 	lecturer position was 	fair
or not;" 	(4) 	in the summer of 	1993, 	Harrington asked for a copy
of Chan's 	service calculation; 	and 	(5) 	in January 1994,
Harrington 	told 	Chan that 	re-appointment 	was 	a possibility. 	In a
May 28, 	1993 	grievance 	form and a November 27, 	1993 	letter to
Harrington, 	however, 	Chan asserts that 	she 	"had knowledge of UC's
contractual violation 	[i.e. 	denial 	of 	three year appointment] 	on
4-18-93." 	Chan's 	additional 	allegations 	fail 	to 	establish that
she 	reasonably 	discovered 	the 	occurrence 	of 	the 	unfair practice
on or after October 14, 	1993. 	(Regents 	of 	the University of
California 	(1983) 	PERB Dec. 	No. 	359-H.)
The 	charge 	also 	fails 	to 	demonstrate 	the 	necessary connection or
"nexus" 	between 	the adverse action and the protected conduct.
Facts 	establishing one 	or more 	of 	the 	following additional
factors must also be present: 	(1) 	the timing of 	the employer's
adverse 	action 	in 	close 	temporal 	proximity 	to 	the 	employee's
protected 	conduct 	(not 	sufficient 	alone, 	but 	in connection with
one of the following factors); 	(2) 	the employer's disparate
treatment 	of 	the employee; 	(3) 	the employer's departure 	from
established procedures 	and 	standards 	when dealing with 	the
employee; 	(4) 	the employer's 	inconsistent 	or contradictory
justifications 	for its actions; 	(5) 	the employer's cursory
(

Warning 	Letter
SF-CE-398-H
May 18, 	1994
Page 	4
investigation of 	the employee's misconduct; 	(6) 	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 	(7) 	any other facts which might demonstrate the
employer's unlawful motive. 	(Novato Unified School 	District.
supra. 	PERB Dec. 	No. 	210; 	Moreland Elementary School District
(19 82) 	PERB Dec. 	No. 	227; 	North Sacramento School District 	(1982)
PERB Dec. No. 	264.)
As presently written, 	the 	charge 	fails 	to demonstrate 	the
required 	factors 	and 	therefore 	does 	not 	state 	a prima 	facie
violation of HEERA section 3571(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 May 26. 	1994. 	I
shall 	dismiss your charge. 	If you have any questions	- 	, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional 	Attorney
I 	. 	(