Regents of the University of California (Scudder) (PERB 1285H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

KENNETH EDWARD SCUDDER,

Charging Party, Case No. SF-CE-506-H

Vv. PERB Decision No. 1285-H

THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,

September 18, 1998

Respondent.

Me ee ee ee ee ee ee ee a et

Appearances; Kenneth Edward Scudder, on his own behalf; Susan H.
von Seeburg, University Counsel, for The Regents of the
University of California.
Before Dyer, Amador and Jackson, Members.
DECISION

JACKSON, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Kenneth Edward Scudder
(Scudder) of a Board agent's dismissal (attached) of his unfair
practice charge. As amended, Scudder's charge alleges that The
Regents of the University of California (University) violated

section 3571(a) of the Higher Education Employer-Employee

Relations Act (HEERA)* by laying him off from his position as a

"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

legal 	research analyst 	on July 	11, 	1997 	and by dismissing his
grievance on November 25, 	1997.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	Scudder's appeal and the University's 	response. 	The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	from
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-506-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
applicant 	for employment 	or 	reemployment.
2

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
June 24, 1998
Doug Brown
University Professional 	& Technical 	Employees
P.O. 	Box 40123
Berkeley, 	CA 	94704
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Kenneth Edward Scudder v. 	The Regents of the University of
California
Unfair Practice Charge No. 	SF-CE-506-H
Dear Mr. Brown:
The above-referenced unfair practice charge, 	filed May 22, 	1998,
alleges 	the Regents 	of 	the University of California 	(University)
discriminated against 	Kenneth Scudder by laying him off 	and by
dismissing his grievance. 	Charging Party alleges 	this 	conduct
violates Government Code section 3571(a) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA or Act).
I indicated to you, 	in my attached letter dated May 27, 	1998,
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. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to June
3, 	1998, 	the charge would be dismissed. 	I later extended this
deadline until June 12, 	1998.
On June 12, 	1998, 	I received a first amended charge. 	The amended
charge reiterates 	the allegations contained in the original
charge and adds 	the 	following. 	Charging Party's original 	charge
seemed to contend that the University laid Mr. 	Scudder off
because of his protected activities. 	The amended charge
clarifies that Mr. 	Scudder is alleging the University failed to
properly process his grievance regarding the layoff, 	because of
his protected activity.
On July 11, 	1997, 	the University temporarily laid off Mr. 	Scudder
and two fellow employees, 	Tom Hogan and Mujahidum Sumchai. 	On
July 29, 	1997, Mr. 	Scudder and his fellow employees filed
grievances alleging the layoff 	failed to conform to PPSM Sections
r

Dismissal 	Letter
SF-CE-506-H
Page 2
60A-D. 	Mr. 	Scudder identified UPTE representative Doug Brown as
his representative.
On August 6, 	1997, 	University representative, 	Booker McClain,
responded to Charging Party's grievance via a letter to Mr.
Brown. 	Mr. 	McClain informed Mr. 	Brown that he needed further
information regarding the grievance, 	as 	PPSM sections cited in
the grievance did not appear to apply to Mr. 	Scudder's case. 	Mr.
McClain set a deadline of August 18, 	1997, 	for the information.
Apparently due to an incorrect address, 	Mr. 	Brown did not receive
Mr. 	McClain's letter and failed to respond by the deadline. 	On
September 25, 	1997, 	Mr. McClain communicated to Charging Party
that the grievance was 	"abandoned" as Mr. 	Brown had failed to
respond. 	On October 15, 	1997, Mr. McClain agreed to establish a
new deadline 	for the 	requested information and Charging 	Party's
appeal of Mr. 	McClain's previous decision. 	Charging Party and/or
his 	representative 	failed to provide the 	requested information by
the second deadline as well.
Despite Mr. 	McClain's prior statements that the grievance was
abandoned, 	Mr. 	McClain again agreed to extend the deadline for
the appeal until November 14, 	1997. 	After speaking with Charging
Party's attorney, 	Mr. 	McClain gave a final deadline of November
21, 1997.
On November 21, 	1997, 	Charging Party placed the information Mr.
McClain requested in an inter-office mail box. 	Mr. 	McClain did
not receive the information until November 24, 	1997, 	three days
after the deadline. 	On November 25, 	1997, Mr. McClain responded
to Charging Party's appeal by stating that the appeal was denied
as 	it was untimely filed.
Based on the above stated facts, 	the charge as presently written
fails to state a prima facie violation, 	and is therefore
dismissed.
Charging 	Party contends 	the University discriminated against him
in the processing of his grievance by failing to allow the appeal
of his grievance to be processed. 	In support of this allegation,
Charging Party contends 	the grievances 	filed by his 	fellow
employees were processed in a timely fashion without 	incident.
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

Dismissal 	Letter
SF-CE-506-H
Page 3
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: 	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 of HEERA section 3571(a).
Charging Party engaged in protected activity by filing a
grievance regarding his layoff. 	However, 	Charging Party fails to
demonstrate the University denied his appeal because of his
protected activity. 	Charging Party contends 	the University's
discriminatory motive 	is demonstrated by the fact 	that his 	fellow
employees had their grievances 	resolved in a timely fashion.
However, 	such an assertion does not demonstrate disparate
treatment.
Charging Party and his 	fellow employees 	engaged in the same
protected activity. 	However, 	only Charging Party's appeal was
denied. 	Facts provided by the Charging Party fail 	to demonstrate
the University denied his appeal 	for any reason other than that
provided by the University. 	The University granted Charging
Party and his representatives 	three extensions of time to file
the appeal. 	Charging Party failed to meet any of these
deadlines. 	While Charging Party may feel 	such a procedural
dismissal is arbitrary, 	the University's actions demonstrate Mr.
Scudder had ample 	opportunity to provide 	the University with an
appeal. 	As such, 	it appears the appeal was denied as it was
untimely filed, 	and not 	for discriminatory reasons. 	Therefore,
the charge is dismissed.

Dismissal 	Letter
SF-CE-506-H
Page 4
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
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.)

Dismissal 	Letter
SF-CE-506-H
Page 5
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 Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Susan Von Seeburg, 	Esq.
Booker McClain, 	Human Resource Manager

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERS
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
May 27, 	1998
Kenneth Edward Scudder
2300 	Shattuck Avenue
Berkeley, 	CA 	94704
Re: 	WARNIN
==---------G LETTER
Kenneth Edward Scudder v. 	The Regents of the University of
California
Unfair Practice Charge No. 	SF-CE-506-H
Dear Mr. Scudder:
The above-referenced unfair practice charge, 	filed May 22, 	1998,
alleges 	the Regents of the University of California 	(University)
discriminated against you by laying you off 	and by dismissing
your grievance. 	You allege this 	conduct violates Government Code
section 3571(a) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA or Act).
Investigation of the charge revealed the following. 	Until July
1997, 	you were employed at the Continuing Education of the Bar
(CEB), 	as a legal research analyst. 	As a research analyst, you
are part 	of 	the bargaining unit 	represented by the University
Professional and Technical Employees 	(UPTE). 	UPTE and the
University do not have a collective bargaining agreement, 	thus
the University's Policies and Procedures Manual 	(PPSM) 	is status
quo between the employees and the University.
On July 1, 	1997, 	you received an electronic message regarding a
meeting to be held on July 3, 	1997. 	You were informed that the
meeting was between yourself and your supervisor to discuss
"personal 	issues." 	After receiving clarification from fellow
employees who received the same meeting notice, 	you were informed
that the meeting concerned 	"personnel 	issues."
On July 3, 	1997, 	during the above-referenced meeting, 	you
received notification from the University of your temporary
layoff, 	effective July 11, 	1997 through November 14, 	1997.
Attached to the letter regarding layoff, 	was the University's
benefits package. 	Additionally, 	the University stated that all
questions 	concerning your layoff 	should be directed to Booker
McClain, 	Human Resources Manager. 	On that same day, 	you contend
your computer and telephone were disconnected, 	and you were
further informed not 	to come onto University property.

Warning 	Letter
SF-CE-506-H
Page 2
On July 29, 	1997, 	you, 	along with your two fellow co-workers who
were also laid off, 	filed a grievance alleging your layoff failed
to conform with PPSM Sections 	60A-D. 	Section 60 	states 	in
pertinent part: 	"It 	is the policy of the University to minimize
the effects of indefinite layoffs..." 	The grievance alleges the
University failed to minimize 	the effects of your layoff by
sending you an electronic message about 	the meeting,
disconnecting the telephones and computer, 	and by failing to
discuss alternatives 	to your layoff. 	The grievance also alleges
Mr. 	McClain singled you out for layoff because of 	"productivity"
issues. 	You contend productivity is not a valid reason to single
someone out 	for layoff.
On August 6, 	1997, 	Mr. McClain responded to Charging Party's
grievance, 	by sending a letter to Dave Brown, 	Charging Party's
UPTE representative. 	Mr. 	McClain noted that Section 60A-C did
not apply to Charging Party, 	as Charging Party's layoff was
temporary, 	not indefinite. 	With regard to Section 60D, 	Temporar--- ----y
Layoff. 	Mr. 	McClain informed Mr. 	Brown that more information was
-needed in order to process the grievance. 	Mr. 	McClain provided
an August 18, 	1997, 	deadline to receive this information.
Apparently due to an incorrect address, 	Mr. 	Brown did not receive
Mr. McClain's August 6, 	1997, 	letter and failed to respond by the
deadline. 	On September 25, 	1997, Mr. McClain communicated to
Charging Party that 	he understood the grievance 	to be 	"abandoned"
as Mr. 	Brown failed to respond in a timely fashion. 	On October
15, 	1997, 	during settlement negotiations regarding your co-
workers grievances, 	Mr. McClain agreed to allow Mr. 	Brown to
refile your grievance and established new deadlines 	for the
information requested. 	Mr. 	Brown failed to provide Mr. 	McClain
with the information.
On October 28, 	1997, 	Charging Party states he attempted to
"reinstate" his grievance. 	On November 6, 	1997, Mr. McClain sent
Charging 	Party an electronic message stating in relevant part
that Charging Party could not manage his own grievance without
indicating that he no longer wished to have Mr. 	Brown as his
representative. 	As Mr. 	Brown was the representative-of-record,
Mr. 	McClain stated he needed Mr. 	Brown to provide him with the
information requested. 	As neither Charging Party, 	nor Mr. 	Brown,
had provided Mr. 	McClain with the requested information, 	the
grievance was 	considered 	"abandoned" 	for a second time.
Despite Mr. 	McClain's statements in the electronic message, 	on
November 7, 	1997, 	Mr. McClain agreed to extend Charging Party's
deadline to provide information until November 14, 	1997. 	On
November 11, 	1997, 	Charging Party's attorney made a request for
settlement to Mr. 	McClain. 	Mr. 	McClain rejected the settlement

Warning 	Letter
SF-CE-506-H
Page 3
offer, 	and further extended Charging Party's deadline until 	5:00
p.m., November 21, 1997.
On November 21, 	1997 at approximately 9:30 a.m., 	Charging Party
placed his letter to Mr. 	McClain in the inter-office mail box.
Mr. McClain did not receive the letter until November 24, 	1997.
On November 25, 	1997, 	Mr. McClain responded to Charging Party's
appeal by stating that the appeal was denied as 	it was untimely
filed, 	and that no further action would be taken.
Based on the above stated facts, 	the charge as presently written,
fails to demonstrate a prima facie violation of the HEERA, 	for
the reasons 	stated below.
Charging Party contends:
McClain acted in bad 	faith throughout 	the
grievance process, five times . 	. 	. denying
my grievance and subsequent appeal 	on
frivolous grounds, 	and twice rejecting out of
hand reasonable settlement offers. 	His
actions in so doing are clear violations of
Government 	Code 	section 3571(a)--unlawful
discrimination, 	retaliation, 	and bad faith.
Charging 	Party contends 	the University laid him off 	for
discriminatory reasons. 	Government Code section 3563.2(a)
provides 	that 	the Board shall not 	issue a complaint 	in respect of
any charge based upon an alleged unfair practice occurring more
than six months prior to the filing of the charge. 	On July 3,
1997, 	Charging Party was informed of his temporary layoff. 	As
the charge was 	filed more than six months after the notice of
layoff, 	allegations regarding the layoff itself are untimely, 	and
therefore must be dismissed.
Even assuming all allegations to be timely filed, 	the charge
still 	fails to state a prima facie case. 	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.)

Warning 	Letter
SF-CE-506-H
Page 4
In the instant charge, 	Charging Party contends that the
University failed to follow proper procedures 	in processing his
grievance and singled him out 	for layoff 	for an improper reason,
i.e. 	his productivity. 	However, 	in order to state a prima facie
claim of 	retaliation or discrimination, 	Charging Party must
demonstrate he engaged in some protected activity, 	and that the
University chose 	to lay him off 	and/or refused to process his
grievance, 	because of the protected activity. 	Charging Party
fails 	to demonstrate he engaged in any protected activity prior
to his layoff, 	and fails to demonstrate the University laid him
off 	for reasons 	other than those provided by the University. 	As
such, 	the charge fails to state a prima facie case.
To the extent 	that Charging Party is alleging the University
failed to follow its own procedures 	in processing the grievance,
the charge fails to state a prima facie case. 	Such an allegation
is properly analyzed as a unilateral 	change or as bad faith
bargaining. 	However, 	Charging Party lacks standing to allege a
unilateral change or bad faith, 	and as such, 	the allegation fails
to state a prima facie case. 	(Oxnard School District 	(1988) 	PERB
Decision No. 	667.)
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 have the case number written on the top right
hand corner of the charge form. 	The amended charge must be
served on the 	respondent's 	representative 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 3, 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney