University of California (Ridley) (PERB 0699H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

NANCY A. RIDLEY,

Charging Party, Case No. LA-~CE-223-H

Ve PERB Decision No. 699-H

REGENTS OF THE UNIVERSITY OF

September 27, 1988
CALIFORNIA,

Respondent.

ee ee Ne ee Sn ee Neel? Se Ne el Set

Appearances: B. Benedict Waters, for Nancy A. Ridley; Claudia
Cate, Attorney for Regents of the University of California.

Before Hesse, Chairperson; Porter, Craib and Shank, Members.

DECISION AND ORDER

This case is before the Public Employment Relations Board
(Board) on appeal by Charging Party of a Board agent's
dismissal, attached hereto, of her charge that the Regents of
the University of California violated section 3571(a) of the
Higher Education Employer-Employee Relations Act (codified at
Gov. Code sec. 3560 et seq.). We have reviewed the dismissal
and, finding it free from prejudicial error, we adopt it as the
Decision of the Board itself.

The unfair practice charge in Case No. LA-CE-223-H is

hereby DISMISSED WITHOUT LEAVE TO AMEND.

By the Board

STATE OF CALIFORNIA
GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 29, 1988
B. Benedict Waters
19
Re: LA-CE-223-H, Nancy A. Ridley v. Regents of the University of
California, DISMISSAL OF UNFAIR PRACTICE CHARGE
Dear Mr. Waters:
The above-referenced unfair practice charge, filed on October
29, 1987, alleges that the Regents of the University of
California (University) interfered with Charging Party's access
to the grievance procedure by failing to cooperate in the
scheduling of the Step 1 meeting and attempting to control the
attendance of witnesses at the meeting. 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 March 22, 1988,
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 accordingly. You were further advised that unless you
amended the charge to state a prima facie case, or withdrew it
prior to March 29, 1988, it would be dismissed.
I have not received either a request for withdrawal or an
amended charge and am therefore dismissing the charge based on
the facts and reasons contained in my March 22, 1988 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. Code of Civil Procedure section 1013 shall apply.
(See section 32135. ) The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814

March 29, 1988
LA-CE-223-H
Page 2
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
(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 section 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 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 (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,
JOHN SPITTLER
Acting General Counsel
By
DONN GINGZA
Regional Attorney
Attachment
cc: Claudia Cate

GEORGE DEUKMEJIAN, Governgy
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Sulbe 430
Los Angeles, CA 90010-2334
(213) 794-3127
March 22, 1968
Benedict Waters
019
Re: LA-CE-223-H, Nancy A. Ridley v. Regents of the University of
California
Dear Mr. Maters:
The above-referenced unfair practice charge, filed on October
29, 1987, alleges that the Regents of the University of
California (University) interfered with Charging Party's access
to the grievance procedure by failing to cooperate in the
scheduling of the Step 1 meeting and attempting to control the
attendance of witnesses at the meeting. This conduct is
alleged to violate Government Code section 3571(a) of the
Higher Education Employer-Employee Relations Act (HEERA).
investigation revealed the following facts. On October 5,
1907, Charging Party filed a grievance t the University
alleging a violation of Article 4 of the Memorandum of
Understanding (MOU) negotiated between the University and the
mer ican Federation of State, County and Municipal Employees.
Article 4 prohibits discrimination in employs nt. 	The
grievance concerned improper conduct in the processing of
Charging Party's vacation request.
Article 4, section E. I. a. provides that a grievance, such as
the one filed by Ridley, which alleges only a violation of
Article 4, requires a meeting at Step 1 of the grievance
procedure, as outlined in Article 6 of the MOU. Article 4,
section E. 1. a. further provides that the appropriate employer
representative is to respond in writing at Step 1 according to
the procedure set forth in Article 6, section H.1. b. Article
4, sections E. 1. b. and E. 1. c. provide that a grievance alleging
only a violation of Article 4 may be appealed to Step 2 of the
grievance procedure but may not be appealed to Step 3, or
elevated to arbitration.
Article 6, section H. 1. b. states, in pertinent part, as follows:
Within fifteen (15) calendar days
after receipt of the grievance a response
will be issued, in writing, to the employee
and the employee's representative. If the
University's written response is not issued
within these time limits or if the grievance

LA-CE-223-H
March 22, 1988
Page 2
is not resolved at Step 1 of the Grievance
Procedure, the grievance may be appealed to
Step 2.
By letter dated October- 1.2, 1987, Sandra J. Rich, Assistant
Labor Relations Manager for the University, notified Charging
Party that it was scheduling the Step 1 meeting for October 15,
1987 from 9:00 a.m. and requested a confirmation by contacting
the office of William Cormier, who was designated to conduct
the meeting. The letter was received by Charging Party on
October 13, 1987. On the same day, Charging Party telephoned
Cormier's office to request an alternate time as the proposed
time would not have permitted her sufficient time to make
arrangements for the attendance of her representative and
desired witnesses. 	Cormier was not in the office and
consequently Ridley discussed the matter with Cormier's
receptionist/secretary.
Ridley suggested October 19 as an alternate date and then
contacted her representative for his approval of the time.
Having received her representative's approval, Ridley
telephoned Cormier's receptionist/secretary attempting to
confirm the October 19 date. The charge does indicate the
content of the secretary's response to the proposed
rescheduling, however, it does allege that an agreement was
reached, that it is the common practice of mid-level managerial
personnel to have their calendars maintained by secretaries,
and that at no time did the secretary involved dony she had
authority to reschedule the meeting.
On October 14 Ridley typed and hand-delivered by messenger a
letter addressed to Cormier confirming the October 19 date. By
two letters of the same date and pursuant to the provisions of
Article 6, section F. 2., Ridley notified the supervisors of
employees whose attendance as witnesses she sought at the Step
1 meeting.
Article 6, section F. 2. provides in pertinent part as follows:
A grievant and/or Union representative may
request the availability of bargaining unit
employee witnesses for such grievance
meetings. The availability of bargaining
unit employee witnesses shall be determined
by their immmediate supervisor (s) on the
basis of operational needs, and such

LA-CE-223-H
March 22, 1988
Page
requests shall not be denied
unreasonably . . 	Grievants and the Union
agree that every effort shall be made to
avoid the presentation of repetitive
witnesses and that the absence of any or all
witnesses shall not require the meeting to
be recessed or postponed.
On October 17, 1987, Ridley received notice in the form of a
letter dated October 15, 1967 from Cormier notifying Ridley
that her letter of October 14 was incorrect in stating that the
rescheduled Step 1 meeting had been confirmed for October 19.
He denied that anyone in the office could have confirmed such
time because he had been scheduled to be off-campus on the
19th, 20, and 21st. Cormier offered October 22 as his next
available date. The letter further requests a waiver of the
written response due date. The last sentence of the letter
states : 	"Also, please be advised that I will decide which
ployees need to be interviewed to ascertain the facts of the
matter . " 	Charging Party contends that this statement announces
that the University "has sole discretion to control, restrict
and/or prohibit the presentation of oral information by the
grievant during the grievance process 	(See paragraph 15 of
charge. )
Ridley received the letter and responded with a hand-delivered
letter on October 19 asserting that the meeting in fact had
been arranged for the 19th and that she would be present at
that time.
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.
Charging Party asserts that where a grievance meeting is
mandatory under the MOU, the failure to provide reasonable
advance notice, "ipso facto" constitutes an unfair labor
practice. (See paragraph 30 of charge. ). Alternatively, the
charge alleges that the University's failure to give sufficient
notice caused harm because it prevented Charging Party from
obtaining the witnesses she desired and affording adequate
notice to her representative. 	Charging Party also claims that
the University cannot refuse to attend a grievance meeting
mandated by the MOU because its preferred representative is not
available. Charging Party argues that interference with the

LA-CE-223-H
March 22, 1988
Page 4
grievance procedure results from insistence on a particular
representative where that insistence is an excuse for not
meeting within the time limits required by the MOU. In
summary, Charging Party contends that the University's conduct
described above interferes with access to the grievance process.
These allegations fail to state a prima facie violation.
First, the terms for a grievance procedure are established by
the employer and exclusive representative through
negotiations. Anaheim School District (1903) PERB Decision
No. 364. 	HEERA does not establish minimal requirements for a
grievance procedure, but only establishes the right effectively
to present grievances to the employer. 	Regents of the
University of California (1983) PERB Decision No. 308-H.
Accordingly, PERB has no authority to determine that two days
notice is "ipso facto" an unfair practice.
Second, in order to state a prima facie violation alleging
interference with rights guaranteed by the BRERA, the charging
party must allege at least slight harm results from the
employer's conduct. Carlsbad Unified School District (1979)
PERB Decision No. 	89, ingants of the University of California,
"pra. In Regents, 	held that coployet conduct in
connection with the processing of grievances is unlawful "if
the impact of it is to deprive 	ployees of their statutory
rights to effectively present their grievances." That case
found that denying a grievant multiple representatives did not
establish harm to guaranteed employee rights. Assuming that
lack of notice may impact on the right effectively to present a
grievance, Charging Party has failed to allege facts to
demonstrate interference with that right resulted.
Charging Party contends that the lack of notice prevented her
from obtaining witnesses and giving her representative
sufficient advance notice. However, the facts only indicate
that Charging Party was not prepared to meet with her witnesses
and representative on October 15, the first date, scheduled by
the University, and that the University was not prepared to
meet with its representative on October 19, the second date,
scheduled by Charging Party. They also indicate that the
University was willing to meet on a third date, but Charging
Party was unwilling to wait until that time. Therefore the
facts alleged do not demonstrate that the University disposed
of her grievance without hearing the witnesses or allowing the
representative to participate. It is also apparent that two
days notice was only a problem for Charging Party as to the
first meeting. Charging Party's real complaint is that the
Step 1 meeting was not held within 15 days of the filing of the
grievance.

LA-CE-223-H
March 22, 1968
Page 5
But the University's failure to meet within 15 days is at best
a contract violation absent a showing that Charging Party was
denied the right effectively to present her grievance. Unless
a contract violation is also an unfair practice, the matter is
not remediable through the unfair practice procedures.
Government Code section 3563.2(b) . Charging Party has failed
to allege facts which demonstrate that a delay of several days
in meeting at Step 1 and producing a written response
interfered with her right effectively to present her
grievance. Indeed, the MOU's language expressly provides that
the grievant is entitled to proceed to Step 2 if the written
response is not issued in 15 days. (Article 6, section H. 1.b. )
Similarly, the claim that the University may not choose which
representative attends the Step 1 meeting and may not cite the
lack of a representative as an excuse for delaying the meeting
is promised on the contention that the Step 1 meeting must be
held within 15 days and that the University was solely
responsible for the time limit not being met. As noted above,
under the facts alleged, this is at best a contract violation.
Finally, Cormier's statement that he would decide what
witnesses "needed" to be interviewed, even coupled with the
other events, does not raise a reasonable inference that
Charging Party would have been prevented from presenting any or
all of the witnesses she desired or presenting evidence of her
position by other means in either the Step 1 or Step 2 meetings.
For these reasons, the charge as presently written does not
state a prima facie case. If you feel that there are any
factual inaccuracies in this letter or any additional facts
which 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 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 March 29, 1988, I shall dismiss the
above-described allegation from your charge. If you have any
questions on how to proceed, please call me at (213) 736-3127.
Sincerely,
DONN GINOZA
Regional Attorney