Regents of the University of California (Harris) (PERB 1239H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM L. 	HARRIS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case No. 	LA-CE-490-H
PERB Decision No. 	1239-H
December 4, 	1997
Appearances: 	William L. 	Harris, 	on his own behalf; 	Leslie L.
Van Houten, 	Attorney, 	for Regents 	of the University of
California.
Before Dyer, 	Amador and Jackson, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by William L. 	Harris 	(Harris)
of a Board agent's 	dismissal 	(attached) 	of his unfair practice
charge.
Harris 	alleged that 	the Regents 	of 	the University of
California 	(University) 	violated section 3571(a) 	and 	(b) 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA)1 by
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Section 3571 provides, 	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
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denying his 	request 	for a 	salary 	increase.
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
The Board has 	reviewed the entire 	record in 	this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
unfair practice charge, 	Harris' 	appeal, 	and the University's
response.2 The 	Board 	finds 	the warning and dismissal 	letters 	to
be 	free of prejudicial error and, 	therefore, 	adopts 	them as 	the
decision of 	the Board 	itself.
ORDER
The unfair practice charge in Case No. 	LA-CE-490-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Jackson 	joined 	in 	this 	Decision.
2We 	note 	that 	Harris 	submitted additional 	material 	after 	the
filings were complete. 	PERB Regulation 32635(b) 	(PERB regs, 	are
codified at Cal. 	Code of Regs., 	tit. 	8, 	sec. 	31001 et seq.),
provides 	that:
Unless good cause 	is 	shown, 	a 	charging party
may not 	present 	on appeal 	new 	charge
allegations 	or new supporting 	evidence.
The documents Harris 	submitted indicate, 	among other things,
that: 	(1) 	a departmental 	reorganization occurred effective
August 1997; 	and 	(2) 	on October 1, 	1997, 	Harris was given a
layoff notice, 	which he asserts was a result 	of his 	reluctance 	to
follow the 	reorganization 	schedule.
We 	find 	that 	good cause 	exists 	to 	consider 	these
supplemental 	filings, 	since 	the 	information involves 	recent
events 	and 	could not 	have been offered earlier. 	(Santa 	Clarita
Community College District 	(1996) 	PERB Decision No. 	1178; 	Regents
- -of 	the University of California 	(1994) 	PERB Decision No. 	1058-H.)
Furthermore, 	it 	is 	relevant 	to the instant unfair practice
charge. 	However, 	after considering these filings, 	we agree with
the 	Board agent's 	conclusion that 	Harris 	has 	not 	stated a prima
facie case.
22

STATE OF CALIFORNIA 	c 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
June 9, 	1997
Cliff Fried, 	Vice-President
Union of 	Professional and Technical 	Employees
1015 Gayly Avenue, 	Suite 115
Los Angeles, 	California 93010
Re: 	William L. 	Harris v. 	Regents of the University of California
Unfair Practice Charge No. 	LA-CE-490-H
DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Dear Mr. Fried:
In the above-referenced charge William L. 	Harris alleges the Regents
of the University of California 	(University) 	violated the Higher
Education Employer-Employee Relations Act 	(HEERA or Act) 	§§ 3571 	(a),
(b) 	by discriminating against him in denying his request for a salary
increase.1 On May 27, 	1997, 	I spoke with Harris regarding this
charge. 	On May 29, 	1997, 	I issued a warning letter. 	On May 30, 	1997,
Cliff Fried, 	filed a notice of appearance on Harris' 	behalf. 	On June
4, 	1997, 	I received a letter from Harris which provided:
Your letter of May 29, 	1997, was received last
night. 	The contents of which indicates the lack
of understanding of my situation. 	I am aware of
the rules, 	if the rules have been applied
consistently the difference between my salary and
my fellow employees would be greatly reduced.
Neither your office or my employer mention the
procedures used in the case of 	fellow employees
Gene Cabico, 	Eimee Miura, 	and the use of 	(3) 	times
same money, 	to validate
equity/reclassification...and the 	department 	audit
report, 	which reflect poor performance by the very
employees who received the 	increases...you have
copies.
If my employer followed personnel procedures 	I
doubt 	I would have requested equity increase. 	I
also doubt 	the department performance would be the
same. 	The question of amend charge...I failed to
see relationship between my case and the can-
1The charge also cited HEERA §§ 3571(d) 	and 3565. 	However
the charge did not allege any facts demonstrating the University
dominated or interfered with the 	formation or administration of
an employee organization.
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information in your letter to me. 	No one in my
department other than myself have undergone this
procedure(s).
LA-CE-490-H
Warning 	Letter
May 29, 	1997
Page 2
If you dismiss my charge, 	I will be back.
The May 29, 	1997, 	Warning Letter indicated the charge failed to allege
any facts 	indicating the Department's actions were unlawfully
motivated. 	More specifically, 	the Warning Letter indicated the charge
failed to allege facts demonstrating Harris engaged in any protected
activity. 	The June 3, 	1997 letter and its attachments do not correct
the above-mentioned deficiencies. 	Thus, 	the charge fails to
demonstrate a prima facie violation and must be dismissed.
The June 3, 	1997 letter alleges the University failed to apply its
rules consistently. 	As indicated in the May 29, 	1997, 	Warning Letter,
an employer's departure from procedures may be indicative of nexus
between an employee's protected activity and an employer's 	adverse
action. 	However, 	facts demonstrating the employee engaged in a
protected activity are a prerequisite to establishing nexus. 	This
charge fails to allege such facts and therefore the charge must be
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 Regs., tit. 8, 	sec. 32635(a).)
Any document 	filed with the Board must contain the case name and
number. 	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 Regs., tit. 8, 	sec. 32135.) 	Code of Civil Procedure
section 1013 	shall apply. 	The Board's address is:
Attention: Appeals Assistant
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 Regs., 	tit. 	8,
sec. 32635(b).)
\
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LA-CE-490-H
Warning Letter
May 29, 	1997
Page 3
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 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 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
Tammy L. 	Samsel
Regional Director
Attachment
cc: James Odell

c	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
May 29, 	1997
William L. 	Harris
3412 Rio Hato Court
Camarillo, 	CA 93010
Re: 	William L. 	Harris v. 	Regents of the University of California
Unfair Practice Charge No. 	LA-CE-490-H
WARNING LETTER
Dear Mr. Harris:
In the above-referenced charge you allege the Regents of the
University of California 	(University) 	violated the Higher
Education Employer-Employee Relations Act 	(HEERA or Act) 	§§ 3571
(a), 	(b) 	by discriminating against you by denying your request
for a salary increase.1 On May 27, 	1997, 	I spoke with you
regarding this 	charge. 	My investigation revealed the 	following
information.
The University hired Harris as a Buyer III in the Materials
Management Department of the UCLA Medical Center. 	The University
subsequently reclassified the Buyer III positions 	to Buyer IV.
In December 1995, 	Harris requested his department review his
salary and provide him an equity increase.
On February 20, 1996, Harris' supervisor, Eimee Miura, informed
Harris that his request had been reviewed, 	and denied. 	In March
1996, 	Harris 	filed a formal grievance protesting that decision.
On May 3, 	1996, 	Compensation Manager, Maure Gardner, 	concluded
the original decision to deny Harris an equity increase was
appropriate and that the University's policies had not been
violated. 	On May 7, 	1996, 	Employee Relations Manager, 	Jim
Justiss, 	notified Harris of Gardner's decision. 	Harris requested
the decision be reviewed by an Independent 	Party Reviewer. 	On
August 3, 	1996, 	Charles Maxey, 	Independent Party Reviewer,
concluded the University violated two of its policies, 	but that
Harris' 	requested increase was properly denied.
On February 27, 	1997, Deputy Director, Helene Desruisseaux,
adopted the 	Independent 	Party Reviewer's 	findings and in
accordance with those findings, 	ordered Miura to evaluate Harris'
performance. 	On February 28, 	1997, 	Justiss informed Harris of
1The charge also cited HEERA §§ 3571(d) 	and 3565. 	However
the charge did not allege any facts demonstrating the University
dominated or interfered with the formation or administration of
an employee organization.
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•

Desruisseaux's 	findings and notified Harris 	that 	the University
considered the grievance 	closed.
LA-CE-490-H
Warning 	Letter
May 29, 	1997
Page 2
The above-stated information does not 	factually demonstrate a
prima facie violation of the HEERA for the reasons that follow.
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 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.)
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-·; 	Nort----------h 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 of HEERA section 3571(a).
On March 27, 	1997, 	I called and spoke to you regarding the above-
referenced charge. 	I asked you why you believed the University
denied the salary increase you requested. 	You indicated that the
University was not 	following the proper policies and that 	the
University was mismanaged. 	I explained the elements of a prima
facie violation of 	the HEERA, 	and indicated it would be necessary
to demonstrate 	the University was unlawfully motivated by your
participation in a protected activity. 	This charge does not
allege the University denied your request because of your
participation in a protected activity. 	The charge fails to
I 	(

demonstrate: 	you engaged in a protected activity, 	that the
University had knowledge of your participation in a protected
activity and a 	connection between the protected activity and the
University's actions.
LA-CE-490-H
Warning Letter
May 29, 	1997
Page 3
2
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 June 6. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director
2This 	letter only refers 	to your rights under the HEERA and
does not address your rights under other state or federal laws.