Regents of the University of California (Irvin) (PERB 0849H)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAVID W. 	IRVIN,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	LA-CE-267-H
PERB Decision No. 	849-H
October 30, 	1990
Appearances: 	Daniel Dillon for David Irvin; 	Sandra J. 	Rich,
Assistant Labor Relations 	Manager, 	for the Regents 	of 	the
University 	of 	California.
Before Hesse, 	Chairperson; 	Shank, 	Camilli and Cunningham,
Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(Board) 	on appeal 	by David W. 	Irvin of 	a Board agent's 	dismissal
(attached hereto) 	of his 	charge that the 	Regents 	of 	the
University of California violated section 3571(a), 	(b), 	(c) 	and
(d) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA).1 We have reviewed the dismissal and, 	finding it to be
free of prejudicial error, 	adopt it as 	the Decision of the Board
itself.2
HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government Code.
2We 	note 	that 	the 	first 	full 	sentence 	on page 	2 	of 	the 	Board
agent's 	July 	18, 	1990 	dismissal 	letter 	currently 	reads, 	"In
addition, 	it states that '[f]ailure to invoke the process described
in this 	section within one hundred and eighty 	(180) 	calendar days
will render the agreements ineligible for arbitration.' 	" 	(Emphasis
)
)
)
)
)
)
)
)
)
)
________________ )

added). 	The word 	"agreements" 	was 	incorrectly typed; 	the correct
word 	should 	have 	been 	"grievance."
The unfair practice 	charge 	in Case No. 	LA-CE-267-H 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By the Board3
3Member Craib did not participate 	in this 	Decision.
22

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 1 8 * Street
Sacramento, CA 	95814-4174
(916) 322-3088
Office 	of 	the 	General 	Counsel
916/323-8015
July 18, 	1990
Daniel 	Dillon
Re: 	David W. 	Irvin v. 	Regents 	of the 	University of California
Unfair Practice Charge No. 	LA-CE-267-H, 	1st Amended Charge
DISMISSAL 	of 	Charge 	and 	Refusal 	to 	Issue Complaint
Dear Mr. 	Dillon:
The 	above-referenced 	charge 	alleges 	that 	the 	University 	of
California 	at 	Los 	Angeles 	(University) 	unilaterally 	interpreted
the 	Memorandum of 	Understanding 	(MOU) 	between the 	University 	and
the 	International 	Union of Operating Engineers, 	Local 	501,
AFL-CIO 	(IUOE) 	to exclude Mr. 	Irvin's 	right to a third party
arbitration of his 	grievance. 	This 	conduct 	is 	alleged to violate
sections 3571(a), 	(b), 	(c) and (d) of the Higher Education
Employer-Employee Relations Act 	(HEERA).
I 	indicated to you in my attached 	letter dated May 	24, 	1990, 	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 June 	18, 	1990, 	the
charge would 	be 	dismissed.
Charging 	Party 	requested 	and was 	granted 	an 	extension 	of 	time 	to
file 	an amended 	charge. 	The amended 	charge was 	filed on June 	28,
1990, 	and 	states 	that the union requested arbitration 	in Mr.
Irvin's 	case on December 8, 	1989, 	but an arbitration has 	yet to
be 	scheduled 	or held. 	Although the 	amended 	charge 	claims 	that
the 	University 	refused to 	allow the 	grievance 	to proceed 	to
arbitration, 	there are no 	specific 	facts 	indicating what 	steps
the 	University has 	taken 	to prevent 	such 	a 	hearing 	from being
held. 	Rather, 	it appears 	that after the 	IUOE 	filed 	its 	request
for 	arbitration 	it 	took no 	further action on this 	case. 	The MOU
in 	effect 	at 	the 	time 	the request 	for 	arbitration was 	made
requires 	in 	section 	(b) 	of Article 	26 	that 	"[w]ithin 	fourteen
(14) 	calendar days 	of a request 	for arbitration, 	the parties
shall 	meet 	and 	attempt 	to 	reach 	an 	agreement 	on 	an

Daniel 	Dillon
July 18, 	1990
Page 	2
arbitrator. 	. . . " 	In addition, 	it 	states 	that 	"[f]ailure 	to
invoke 	the process 	described 	in this 	section within 	one 	hundred
and 	eighty 	(180) 	calendar days will 	render the 	agreements
ineligible 	for 	arbitration." 	The 	University 	asserts 	and 	Charging
Party 	does 	not 	dispute 	that 	typically the 	IUOE 	has 	been
responsible 	for 	initiating 	the 	meeting to 	select 	the 	arbitrator.
In this 	case, 	the 	IUOE 	failed to request 	such a meeting. 	Based
on these 	facts, 	there 	is 	no demonstration of a prima 	facie 	case
against 	the 	University.
Charging 	Party 	also 	asserts 	that 	the 	University 	has 	violated 	the
HEERA by 	firing Mr. 	Irvin under the wrong 	contract. 	Namely, 	that
Mr. 	Irvin would have 	become 	a permanent 	employee by 	operation of
the MOU dated July 	17, 	1989 through June 30, 	1992 	(Article 6 ) , 	as
opposed to Article 	6 	of 	the prior contract dated July 	17, 	1986
through April 	30, 	1989. 	This 	is 	really a dispute over whether
Article 	6 	of 	the new contract has been violated by Mr. 	Irvin's
termination 	and/or 	the 	process 	by which 	the 	University 	terminated
him. 	HEERA section 	3563.2(b) 	states 	that:
The 	Board 	shall 	not 	have 	authority 	to 	enforce
agreements 	between the parties, 	and shall 	not
issue 	a 	complaint 	on any 	charge 	based 	on
alleged violation 	of 	such 	an agreement 	that
would 	no 	also 	constitute 	an unfair practice
under this 	chapter.
Because 	there has 	been no 	demonstration of 	any 	other 	unfair
practice, 	PERB does 	not have 	the 	authority to remedy 	the 	alleged
violation of this 	contract.
Charging 	Party 	also 	asserts 	that 	the 	University has 	refused 	to
allow Mr. 	Irvin to process 	his 	grievance to arbitration 	in
violation of HEERA 	section 	3567. 	This 	section 	states:
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 pursuant to 	section 	3589, 	and the
adjustment 	is 	not 	inconsistent with the 	terms
of a written memorandum then in effect. 	. 	. 	.
However, 	the refusal 	of 	the University to allow Mr. 	Irvin to
represent 	himself 	in 	an 	arbitration proceeding 	does 	not 	violate
this 	section. 	As 	this 	section indicates, 	when a 	grievance

Daniel 	Dillon
July 	18, 	1990
Page 3
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. 	An
almost 	identical 	claim was 	dismissed 	by 	the 	Board 	in 	University
of California. 	San Diego (1989) 	PERB Decision No. 	781-H.
Accordingly, 	this 	charge does 	not 	state a prima 	facie violation
of 	the 	HEERA.
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
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

Daniel 	Dillon
July 	18, 	1990
Page 	4
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,
JOHN W. 	SPITTLER
General 	Counsel
By 	Robert thompsonRobert 	Thompson
Deputy 	General 	Counsel
Attachment
cc: 	Claudia Cate

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento. CA 	95814-4174
(916) 322-3088
Office 	of 	the 	General 	Counsel
916/323-8015 VIA U.S. 	EXPRESS 	MAIL
May 24, 	1990
Daniel 	Dillon
Re: 	David W. 	Irvin v. 	Regents 	of 	the University of California
Unfair Practice Charge No. 	LA-CE-267-H
WARNING 	LETTER
Dear Mr. 	Dillon:
The 	above-referenced 	charge 	alleges 	that 	the 	University 	of
California 	at 	Los 	Angeles 	(University) 	unilaterally 	interpreted
the 	Memorandum 	of 	Understanding 	(MOU) 	between 	the 	University 	and
the International 	Union of Operating Engineers, 	Local 	501, 	AFL-
CIO 	(IUOE) 	to exclude Mr. 	Irvin's 	right to a third party
arbitration 	of 	his 	grievance. 	This 	conduct 	is 	alleged 	to 	violate
Sections 3571(a), 	(b), 	(c) 	and (d) of the Higher Education
Employer-Employee Relations Act 	(HEERA).
My 	investigation revealed the 	following 	information. 	Mr. 	Irvin
was 	employed by 	the 	University as 	a casual 	employee 	(plumber) 	on
September 6, 	1988. 	On March 	6, 	1989, 	he became a probationary
career employee. 	On August 	18, 	1989, 	Mr. 	Irvin was 	released from
employment 	in accordance with Article 	6 	of 	the 	MOU by
David 	Hendry, 	superintendent 	of physical plant 	for the
University. 	On August 	23, 	1989, 	IUOE Representative David
Hamilton wrote 	to 	University 	Representative 	Gayle 	Cowling,
indicating 	that 	Mr. 	Irvin had 	requested a 	meeting 	to 	air 	a
complaint pursuant 	to Article 	28 	of 	the MOU. 	On September 	14, 	a
meeting was 	convened 	to discuss 	the basis 	of Mr. 	Irvin's
complaint. 	At 	that 	time 	Mr. 	Irvin 	indicated 	that 	he 	believed 	he
was 	being 	released do 	to 	his 	national 	origin 	(Scottland). 	On
September 	18, 	1989, 	Mr. 	Irvin also 	filed a grievance against the
University. 	The 	University objected to Mr. 	Irvin 	filing both 	a
grievance 	and 	complaint 	over 	the 	same 	dismissal. 	In 	a 	letter
dated September 	26, 	1989, 	Mr. 	Irvin indicated to the 	University
that 	he 	was 	going 	to 	drop 	the 	complaint 	and 	that 	he 	wished 	to
have his 	problem heard 	as 	a 	grievance.
There 	then followed a 	series 	of 	letters between Mr. 	Irvin, 	IUOE
representatives, 	and 	University 	representatives 	concerning

Daniel 	Dillon
May 24, 	1990
Page 2
whether 	Mr. 	Irvin's 	grievance would be arbitrated. 	The 	most
recent 	correspondence 	dated January 	3, 	1990, 	from 	University
Assistant 	Labor 	Relations 	Manager 	Sandra 	Rich 	to 	Mr. 	Hamilton
indicated 	that 	the 	University would 	not 	deny 	IUOE's 	request 	that
Mr. 	Irvin's 	grievance 	be arbitrated. 	The 	letter went 	on to
explain, 	however, 	that 	several 	factors 	indicated a weakness 	in
Mr. 	Irvin's 	case 	and 	that 	if 	the dispute were 	to proceed 	to
arbitration, 	the 	parties 	should be 	initially 	concerned with 	the
procedural 	and 	arbitrability 	questions 	rather 	than 	the 	substance
of the dispute. 	In my 	final discussion with Mr. 	Irvin, 	on
April 	10, 	1990, 	he 	indicated that he was 	meeting with 	the 	IUOE
that 	evening 	concerning 	his 	grievance 	and would 	inform me 	of 	the
outcome 	of 	that discussion. 	I 	have 	not heard 	from him 	since.
Based on the 	facts 	described above, 	this 	charge 	does 	not 	state 	a
prima 	facie 	violation 	of 	the 	HEERA 	for 	the 	reasons 	which 	follow.
The 	thrust of 	Mr. 	Irvin's 	charge 	is 	that 	the 	University
unilaterally 	reinterpreted 	a 	section 	of 	the 	memorandum 	of
understanding 	to 	limit 	or defeat 	his 	ability 	to 	proceed 	to
arbitration on his 	grievance. 	Such a 	unilateral 	change 	of 	an
employer's 	policy 	is 	considered a 	refusal 	to bargain 	in good
faith. 	The Public 	Employment Relations 	Board 	(PERB) 	determined
in Oxnard 	School 	District 	(Gorsey/Tripp) 	(1988) 	PERB 	Decision
No. 	667 	that an 	individual 	employee does 	not have 	the 	standing to
file 	a 	charge 	alleging 	a violation of 	the 	employer's 	duty 	to
bargain 	in good 	faith.1
Even 	if Mr. 	Irvin had 	standing to 	file this 	charge, 	it does 	not
appear 	that 	the 	University 	is 	preventing 	Mr. 	Irvin 	or his
exclusive 	representative 	IUOE 	from pursuing 	his 	grievance 	to
arbitration. 	(See Ms. 	Rich's 	letter of January 	3, 	1990.) 	Thus,
there 	appears 	to 	be 	no 	factual 	basis 	for 	the 	allegations
contained 	in 	this 	charge.
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
1Although 	Oxnard 	School 	District 	was 	decided 	under 	the
Educational 	Employment 	Relations Act 	(EERA), 	the 	reasoning of
this 	case 	is 	applicable 	to 	similar 	situations 	arising 	under 	the
HEERA because 	the 	policy of 	the 	two 	acts 	is 	similar, 	and the
language 	of 	3571(c) 	is 	identical 	to 	that 	of 	EERA 	section
3543.5(c).

Daniel 	Dillon
May 24, 	1990
Page 3
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
June 	18 . 	1990. 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
-
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel
. .