Regents of the University of California (University of California Los Angeles) (PERB 1035H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAUL ATHANS,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA 	(UCLA),
Respondent.
Case No. 	LA-CE-380-H
PERB Decision No. 	1035-H
February 3, 	1994
Appearance; 	Paul Athans, 	on his own behalf.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Paul Athans 	(Athans) 	of a
Board agent's 	dismissal 	(attached hereto) 	of 	his unfair practice
charge. 	Athans 	alleged that 	the Regents 	of 	the University of
California violated section 3571(a) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA)1 by denying his 	request
for arbitration 	of 	a grievance 	he 	filed 	challenging his
termination.
HEERA 	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.
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The Board has 	reviewed the 	entire 	record 	in this 	case,
including Athans' 	charge, 	the Board agent's dismissal 	letter and
Athans' 	appeal. 	The Board finds 	the Board agent's dismissal 	to
be 	free 	of prejudicial 	error and adopts 	it 	as 	the 	decision of 	the
Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-380-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Garcia 	joined 	in 	this 	Decision.
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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
November 18, 1993
Paul Athans
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. LA-CE-380-H, 	Paul Athans v. Regents of the
University of California 	(UCLA)
Dear Mr. Athans:
In the above-referenced charge, 	filed October 20, 	1993, you
allege that UCLA committed an unfair practice, 	violating the
Higher Education Employer-Employee Relations Act 	(HEERA), by
disallowing your representative's request for arbitration
involving a grievance filed over your termination. 	You have
chosen not to be represented by the exclusive representative, 	the
International Union of Operating Engineers, 	Local 501 	(IUOE).1
During our telephone conversation on November 16, 	1993, 	you
waived the issuance of a Warning Letter prior to the issuance of
this Dismissal and Refusal to Issue Complaint. 	On November 17,
1993, 	we briefly discussed this dismissal and your right to
appeal to the Board.
My investigation and the charge reveal 	the 	following information.
You claim UCLA terminated you around December 1992 	regarding your
extended sick leave. 	You filed a grievance 	(Grievance No.
501 GR 93-07). 	By letter dated March 26, 	1993, you advised UCLA
that your legal representative was Thomas J. Coleman, 	Jr., 	Esq.,
Law Offices of Leroy S. Walker. 	By letter dated May 27, 	1993,
Mr. 	Coleman requested arbitration on your behalf, 	under the
Collective Bargaining Agreement. 	You have not requested that
IUOE, 	the exclusive representative, 	represent you regarding your
latest grievance. 	By letter dated June 4, 	1993, 	UCLA advised Mr.
Coleman that Article 26, 	section A 	(Request for Arbitration)
provides in part, 	that a request for arbitration may only be made
by IUOE. 	Thus, 	UCLA would not accept the arbitration request.
Part of your charge alleges that 	"UCLA allows it 	[the grievance]-
to go through the steps under their control 	(within UCLA), but
1I am treating your charge as alleging a
reprisal/discrimination violation of HEERA section 3571(a) 	making
it unlawful 	for the University to 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
guaranteed rights.
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when it comes to be heard in front 	(sic) 	an objective trier of
fact, 	(arbitration) 	they deny to proceed claiming a section of
the contract that states, 	'only the union can request
arbitration'." 	In your charge, 	you ask whether UCLA's conduct is
an unfair practice under the following facts. 	You are not a
union member and IUOE is hostile to you and refuses 	to represent
you. 	You base this on a previous sexual orientation
discrimination grievance you 	filed against UCLA approximately one
year prior to your December 1992 termination. 	You allege that in
that matter, 	IUOE sent a representative supporting UCLA instead
of supporting you. 	Next, 	it is alleged that you were terminated
by a union member in good standing who teaches 	classes at the
"Union school," 	and who is closely related with union
management.2 You believe that James Lowe and George Reich, 	two
unit members, 	filed grievances long ago and were allowed to go to
arbitration represented by non-union counsel. 	Thus, 	you are
contending that you were treated in a disparate manner by riot
being allowed to go to arbitration with your own attorney.
It appears from my investigation that Mr. 	Lowe was put on
investigatory leave on May 12, 	1984, 	and was given an Intent to
Dismiss Notice on June 22, 	1984.3 The Notice of Dismissal was
effective July 24, 	1984. 	A grievance alleging discrimination was
filed on August 8, 	1984. 	It alleged violations of the Staff
Personnel Policy 	(SPP), 	not of the collective bargaining
agreement. 	The matter proceeded to arbitration and Mr. 	Lowe had
a non-union representative.
Mr. 	Reich was placed on investigatory leave on May 11, 	1984. 	On
June 19, 	1984, 	he was given an Intent to Dismiss Notice. 	The
Notice of Dismissal was effective July 23, 	1984. 	A grievance
alleging discrimination was filed on August 8, 	1993. 	It alleged
violations of the SPP, 	not violations of the collective
bargaining agreement. 	The matter proceeded to arbitration and
Mr. 	Reich had a non-union representative.
The agreement between the Regents and IUOE was effective through
June 30, 	1993. 	Pursuant to Article 25, 	section A.2, a grievance
may be brought 	to the attention of the University by an
individual employee or by the union. 	Article 25, 	section A.4
gives to the employee the right to be represented at all steps of
the grievance procedure by a person of the employee's choice.
Article 25, 	section B.3 provides, 	in part, 	that IUOE may appeal
the grievance to arbitration.
2You indicate that this is a conflict of interest.
3The first agreement between The Regents and IUOE became
effective on July 19, 	1984, 	and contained similar language giving
only to the union the right to request arbitration.
2
(
2

On November 5, 	1993, 	we discussed the above action by UCLA on
June 	4, 	1993 	whereby it 	refused to accept your representative's
request 	for arbitration. 	I 	indicated that you needed to
demonstrate 	that 	the University's 	action was 	taken in retaliation
for your prior protected activity 	(nexus). 	You 	indicated that
UCLA alleges 	that 	you were 	guilty of 	job abandonment 	which you
deny. 	You contend that Article 26, 	section A, 	giving only to the
union the right 	to request arbitration, 	is a 	"bad" 	contract
provision. 	Also, 	you believe that your termination in December
1992 	was due 	to sexual 	discrimination.4 You believe 	that 	these
factors demonstrate nexus.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima facie violation of HEERA, 	for the 	reasons 	that 	follow.
First, 	Government Code section 3567 of HEERA states 	in relevant
part, 	"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 	[emphasis added]." 	Thus, 	when a grievance reaches
the arbitration stage, 	the employee's 	individual 	statutory right
to present 	grievances 	through 	the 	employee's 	chosen
representative, 	and have 	them adjusted without 	the 	intervention
of 	the exclusive representative, 	comes 	to an end. 	(University of
California. 	San Diego 	(1989) 	PERB Decision No 781-H. 	This, 	plus
the 	language 	of 	the 	contract 	giving 	IUOE 	the 	sole authority 	to
make a request 	for arbitration, 	appears 	to validate 	the
University's 	action 	in refusing 	to accept your non-union
representative's 	request 	for arbitration. 	Also, 	you might have
requested that 	IUOE 	represent you on this 	grievance and/or
elevate 	it 	to arbitration. 	This you chose not 	to do.
Next, 	to demonstrate a reprisal/discrimination violation of HEERA
section 3571(a), 	the you must show that: 	(1) 	you 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
you because of 	the exercise of 	those 	rights. 	(Novato Unified
School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89; 	Department of
Developmental Services 	(1982) 	PERB Decision No. 	228-S; 	California
State University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
4You are aware 	of 	the 	six month statute of 	limitations.
Thus, 	an allegation of 	reprisal as 	to your December 1992
dismissal 	is untimely. 	There 	is no tolling of 	the 	six month
period under 	the 	Higher 	Education 	Employer-Employee 	Relations
Act.
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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.) 	As presently written, 	this charge fails to demonstrate
any of these factors and therefore does not state a prima facie
violation.
You have failed to demonstrate that 	the University had an
unlawful motive, 	or that there was a nexus between your protected
activity and the University's refusal 	to accept your
representative's request for arbitration. 	On the contrary, 	the
University's actions appear to follow the law and the
requirements of the collective bargaining agreement. 	Disparate
treatment has not been shown by the examples you provided
involving Mr. 	Lowe and Mr. Reich. 	This is because the adverse
actions in those two cases did not allege violations of the
contract, but rather, alleged violations of the SPP. 	Thus, 	it
was not 	improper for those two cases to go to arbitration while
the employees were represented by non-union counsel. 	Without the
critical element of nexus, 	a prima facie case has not been
stated. 	I am therefore dismissing the charge.
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.
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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
be accompanied by proof of service of the request upon each
party. 	(€al. 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 Marc S. 	Hurwitz
Regional Attorney
cc: 	Ms. Merle Kaufman, 	UCLA Campus Human Resources
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