Regents of the University of California (Dehler) (PERB 1148H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BONNIE 	DEHLER,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-432-H
PERB Decision No. 	1148-H
April 12, 	1996
Appearance: 	Bonnie Dehler, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by Bonnie Dehler
(Dehler). 	In her charge, 	Dehler alleged that the Regents of the
University of 	California violated section 3571 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA)1 by:
1HEERA	EERA 	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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
H
)
)
)
)
)
)
)
)
)
)
________________ )

(1) 	failing 	to properly maintain her payroll 	and personnel
records; 	(2) 	improperly closing a grievance; 	and 	(3) 	failing to
provide 	information.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including Dehler's 	original 	and amended unfair practice 	charge,
the warning and dismissal 	letters 	and Dehler's 	appeal. 	The 	Board
finds 	the warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision 	of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CE-432-H is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
(d) 	Dominate 	or interfere with the 	formation
or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to it, 	or in any way encourage
employees 	to 	join any organization 	in
preference to another. 	However, 	subject to
rules 	and 	regulations 	adopted by 	the 	board
pursuant 	to Section 3563, 	an employer shall
not 	be 	prohibited 	from permitting 	employees
to 	engage 	in meeting and 	conferring or
consulting 	during working 	hours 	without 	loss
of pay or benefits.
22

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 11, 199 6
Bonnie Dehler
Re: 	Unfair Practice Charge No. 	SF-CE-432-H, 	Bonnie Dehler v.
Regents of 	the University of California
DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
Dear Ms. Dehler:
You filed the above-referenced charge on October 11, 	1995. 	The
charge alleges 	the University of California 	(University) 	violated
HEERA section 3571(a), 	(b), 	(c) and (d) by: 	(1) Failing to
properly maintain the payroll and personnel records; 	(2)
improperly closing a grievance; 	and 	(3) 	failing to provide
information.
I 	indicated to you, 	in my attached letter dated December 15,
1995, 	that the above-referenced charge did not state a prima
facie violation of HEERA. 	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
December 29, 	1995, 	the charge would be dismissed. 	On December
21, 	1995, 	I granted your request to extend your deadline to
January 8, 1996.
On January 8, 	1996 you filed an amended charge. 	Although the
amended charge provides additional facts, 	it does not allege any
facts which would alter the primary conclusions of 	the December
15 letter. 	For this reason, 	and as explained more fully below,
your charge is dismissed.
First, 	the allegation that the University mismanaged your payroll
records is untimely under HEERA § 3563.2(a). 	As explained in the
December 15 	letter, 	an alleged unfair practice which occurred or
which you reasonably should have had knowledge of before April
11, 	1995 is time barred. 	The amended charge does not present
additional facts regarding this allegation, 	but merely concludes
the allegations 	in the original 	charge should not be time barred
because the alleged misconduct has not been corrected. 	The
statute of limitations period began running when you learned of
the University's alleged unfair practice, 	and therefore that part
of your charge is dismissed as untimely.
PERS
\

Second, 	the allegation that 	the University retaliated against you
by closing your grievance is not 	factually supported. 	The
December 15 letter, 	explained the original charge failed to
provide 	facts 	demonstrating 	the University improperly closed your
grievance. 	The amended charge reiterates the allegations of the
original charge, 	and alleges the University should have contacted
you before proceeding when Eberhart 	transferred responsibility
for your grievance to Popyack. 	As 	I indicated to you in the
December 15 	letter, 	my examination of the collective bargaining
agreement 	did not 	reveal 	any provision requiring the University
to contact you 	in the event your union representative 	transferred
responsibility for your grievance 	to another union
representative. 	The amended charge does not establish the
University acted contrary to the parties' 	collective bargaining
agreement. 	Thus, 	with regard to this allegation the charge is
dismissed.
Third, 	the allegation that the University failed to provide
information to you does not present 	facts demonstrating a prima
facie violation of HEERA. 	The amended charge disputes 	the
December 15 	letter's characterization of your requests 	for
information as 	"individual 	employee requests," 	because the
requests were made as a part of your grievance. 	However
regardless of the characterization, 	the University's obligation
under HEERA § 	3570 	extends only to the exclusive representative,
and not to an individual employee. 	As explained in the December
15 letter, 	whether another statute imposes a duty on the
University to provide you with the 	requested information is
beyond the scope of this letter, 	and not within the jurisdiction
of the Public Employment Relation Board. 	Accordingly, 	with
regard to this allegation the charge 	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
SF-CE-432-H
January 11, 	1996
Page 2

SF-CE-432-
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
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 Tammy 	L.Samsel
Regional Attorney
Attachment
H
January 11, 	1996
Page 3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 15, 1995
Bonnie Denier
Re: 	Unfair Practice Charge No. 	SF-CE-432-H, 	Bonnie Dehler v.
Regents 	of the University of California
WARNING LETTER
Dear Ms. Dehler:
You filed this charge on October 11, 	1995. 	The charge alleges
the University of 	California 	(University) 	violated HEERA section
3571(a), 	(b), 	(c) and (d) by: 	(1) Failing to properly maintain
the payroll and personnel records; 	(2) 	improperly closing a
grievance; 	and 	(3) 	failing to provide information. 	My
investigation 	revealed the 	information 	summarized below.
The University employs Bonnie Dehler as an administrative
assistant I at the University of California Press 	(Press). 	The
American Federation of State, 	County and Municipal Employees
(AFSCME) 	represents Dehler. 	On May 10, 	1993, Dehler filed a
grievance alleging fraud and mismanagement 	of her payroll 	and
personnel records. 	In connection with that grievance, 	Dehler
made various requests for information throughout 1993, 	and 1994.
Dehler alleges 	the University failed to properly respond to 	these
requests.
AFSCME's Bob Dietrich represented Dehler until September of 	1994.
AFSCME's Howard Eberhart 	represented Dehler until 	sometime 	in
1995, 	when he informed the University that AFSCME's George
Popyack would be handling Dehler's case. 	On March 30, 	1995,
Patricia Donnelly, 	of the University's Employee and Labor
Relations Representative Personnel Services, 	wrote to George
Popyack and indicated that Dehler's grievance was 	resolved based
on the Step 1 response. 	The letter explained,
Enclosed is a copy of my most 	recent
correspondence to Mr. 	Eberhart indicating
that 	the settlement 	I had proposed would be
withdrawn after March 10, 	1995, 	and that the
grievance would resume with a Step 2 meeting
to be scheduled no later than March 27, 	1995.
I contacted your office on March 22, 	1995,
because I had not heard from you or Mr.
Eberhart about 	scheduling a Step 2 meeting.

I 	spoke 	to your assistant and reiterated the
March 27, 	1995 Step 2 deadline. 	She assured
me that either she or you would get back to
me by March 27, 	1995. 	As of the day of this
letter I have yet to hear from her or you.
Therefore, Ms. Dehler's grievance is resolved
based on the Step 2 	response.
On April 11, 	1995, 	Dehler objected to the resolution of her
grievance. 	Dehler alleged the University was not authorized to
contact 	Popyack without 	a written letter designating him as 	her
representative. 	Dehler argued when changing her representative
on a previous occasion the University required a written
confirmation of the change.1
As an initial matter, 	under HEERA section 3563.2(a) 	the board may
not 	issue a complaint based on an alleged unfair practice
occurring more than six months prior to the filing of the charge.
Dehler filed this charge on October 11, 	1995. 	Thus, 	any alleged
unfair practice which occurred or which Dehler reasonably should
have had knowledge of before April 11, 	1995, 	is time barred.2
3
Dehler contends she learned for the first time on April 11, 	1995,
that 	the University considered her grievance resolved. 	Dehler
also contends she learned on April 17, 	1995, 	that the University
did not comply with her latest document request. 	Therefore, 	the
issues within the six-month statute of limitations period
include: 	(1) 	the closing of Dehler's grievance, 	and 	(2) 	the
failure of 	the University to comply with Dehler's 	latest
information request.
The allegation regarding the closing of the grievance 	is 	the
theory of discrimination. 	The charge alleges the University
discriminated against Dehler by 	improperly 	closing her grievance.
To demonstrate a violation of HEERA section 3571(a), 	the charging
l0n November 14, 	1994 the University requested written
confirmation of 	the change of 	representatives 	from Bob Dietrich
to Howard Eberhart.
2The 	charge provides 	information covering a time period 	from
19 84 to the present.
3Even if this allegation was not time barred, 	it does not
present a prima facie discrimination violation under the test
described below.
SF-CE-432-H
December 15, 	1995
Page 2
Therefore 	the allegation regarding the University's mismanagement
of Dehler's payroll and personnel records is dismissed.

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 	(19 82) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(19 79) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision 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 Decision 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; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.)
This 	charge 	fails 	to present 	any 	facts 	demonstrating 	the 	closing
of Dehler's 	grievance was 	a 	retaliatory act. 	Article 	6, 	Section
H.2.c. 	of 	the parties 	collective bargaining agreement 	requires
the 	University 	to 	schedule 	and 	convene 	a 	Step 2 	meeting within 	15
calendar days 	of 	receipt 	of 	the 	Step 2 	appeal. 	Dehler's
grievance was held in abeyance at Step 2 	until March 10, 	1995.
On February 28, 	1995, 	Donnelly wrote to Eberhart requesting
Eberhart 	accept 	or 	reject 	a proposed 	settlement 	agreement. 	That
letter 	indicated 	if 	Eberhart, 	"chose 	to 	reject 	the proposal 	or to
not 	respond by March 	10, 	the 	Step 	2 	meeting will 	be 	reconvened
within 15 days, 	or by March 27, 	1995." 	As Donnelly's March 30,.
1995, 	letter indicates, 	the March 27, 	1995, 	deadline was not met.
After examining 	this 	timeline, 	it 	appears 	the University 	followed
the 	parties' 	CBA when 	resolving Dehler's 	grievance 	at 	Step 	1.
Dehler contends 	even if 	the March 27, 	deadline was appropriate,
the 	University 	should 	have 	contacted 	Eberhart 	instead 	of 	Popyack.
Dehler alleges 	the 	University 	should not 	have 	allowed 	Eberhart 	to
hand 	over 	the 	handling 	of 	Dehler's 	grievance 	to 	Popyack without
written 	confirmation 	from Dehler. 	My examination of 	the parties'
SF-CE-432-H
December 15, 	1995
Page 3

SF-CE-432-
CBA did not 	reveal any provision requiring such written
authorization from Dehler. 	For these reasons, 	as presently
written, 	this charge does not state a prima facie violation of
HEERA section 3571(a).
The 	charge 	further alleges 	the University violated HEERA by
refusing to adequately respond to Dehler's 	requests 	for
information. 	HEERA § 	3570 	imposes a duty upon employers to meet
and confer with its employees' 	exclusive representatives. 	With
that 	statutory obligation is 	the duty on the part of the employer
to supply information to the employee organization. 	(See
California Faculty Association 	(1987) 	PERB Decision No. 	613-H.)
Under HEERA, 	the employer's duty to provide information does not
extend to individual employee requests such as Dehler's.4
Accordingly, 	this charge does not present a prima facie violation
of HEERA.
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 DECEMBER 29. 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Regional Attorney
4This 	letter addresses 	only the University's 	obligations
under HEERA, 	and does not address statutory rights or obligations
imposed by the California Public Records Act, 	or the Freedom of
Information Act.
H
December 15, 	1995
Page 4