Regents of the University of California (Coalition of University Employees) (PERB 1314H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COALITION OF UNIVERSITY EMPLOYEES,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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)
) 	Case No. 	LA-CE-522-H
PERB Decision No. 	1314-H
February 	1, 	1999
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Appearances: 	Scott Miller 	for Coalition of University
Employees; 	Doug Kierbel, 	Labor Relations Specialist, 	for Regents
of 	the University of 	California.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of the Coalition of University Employees' 	(CUE) 	unfair
practice 	charge. 	As amended, 	the 	charge alleges 	that 	the Regents
of 	the University of 	California 	(University) 	violated section
3571(a), 	(b) 	and 	(c) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA)1 when it withheld information from and
HEERA 	is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Section 3571 provides, 	in relevant 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

medically 	separated Marita 	Enescu 	in 	retaliation 	for her
protected activities 	and when 	it 	unnecessarily delayed 	the
provision 	of 	information 	necessary and 	relevant 	to 	CUE'S
representational 	activities.
applicant 	for 	employment or] reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge and amendments 	thereto, 	the
warning and dismissal 	letters, 	CUE'S appeal, 	and the University's
response 	thereto. 	The Board finds 	that 	the warning and dismissal
letters 	are 	free 	from prejudicial 	error and adopts 	them as 	the
decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-522-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey 	and Member Amador 	joined 	in 	this 	Decision.
22

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
October 8, 	1998
Scott Miller
Coalition of University Employees
724 S. Sycamore Avenue, 	Suite 201
Los Angeles, 	CA 	90036
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Coalition of University Employees v. 	The Regents of the
University of California
Unfair Practice Charge No. 	LA-CE-522-H; 	Second Amended
Charge1
Dear Mr. Miller:
The above-referenced unfair practice charge, 	filed May 28, 	1998,
and amended July 10, 	1998, 	alleges the Regents of the University
of California 	(University) 	refused to provide information to the
exclusive 	representative and discriminated against 	employee
Marita Enescu. 	The Coalition of University Employees 	(CUE)
alleges this conduct violates Government Code section 3571(a) 	and
(b) 	of the Higher Education Employer-Employee Relations Act
(HEERA or Act).
I indicated to you, 	in my attached letter dated July 22, 	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 July
29, 	1998, 	the charge would be dismissed. 	I later extended this
deadline to August 19, 	1998.
On August 17, 	1998, 	I received a second amended charge. 	The
second amended charge' includes a* twenty-one. . . . " .
" (21) page narrative
and nearly 100 additional pages of exhibits, 	many of which are
correspondence between the parties. 	A summary of the allegations
in the second amended charge, 	and its exhibits follows.
1 The Second Amended Charge, 	filed August 17, 	1998, 	was
mistakenly titled 	"First Amended Charge."
!
------

Dismissal 	Letter
LA-CE-522-H
Page 2
In the first amended charge, 	Charging Party alleged the
University refused to provide CUE with information 	regarding 	the
layoff 	of 	employee Marita Enescu and further discriminated
against Ms. 	Enescu by requiring her to sign a form allowing the
University to release her medical records 	to CUE. 	In my July 22,
1998, 	letter, 	I informed Charging Party that facts provided
failed to demonstrate 	the University refused to provide
information and discriminated against Ms. 	Enescu. 	The second
amended charge attempts 	to address those deficiencies noted in my
July 22, 	1998, 	letter. 	Additionally, 	the second amended charge
alleges Ms. 	Enescu has been medically separated from the
University because of her protected activities.
I. 	Request for Information
On May 6, 	1998, Marita Enescu, 	an Administrative Assistant II, 	at
the UCLA School of Dentistry, 	requested a copy of her personnel
file be made available to CUE representative Scott Miller. 	On
May 14, 	1998, Mr. Miller signed and dated a copy of Ms. 	Enescu's
written request, 	signifying that he had received a sealed copy of
Ms. Enescu's personnel file.
Upon opening the packet of information, 	which was approximately
an inch and one-half thick, 	Mr. 	Miller determined that 	it did not
contain a complete copy of Ms. 	Enescu's personnel file. 	Charging
Party does not explain how such a determination was made or what
documents were missing. 	Mr. 	Miller then telephoned the School of
Dentistry's Human Resources Office to obtain what he believed was
the remainder of Ms. 	Enescu's file. 	During Mr. Miller's
conversation with Minette Ozuna, 	an employee in the Human
Resources Department, 	Ms. 	Ozuna stated that there were documents
in Ms. 	Enescu's personnel file that were not included in the
packet.- 	Ms. 	Ozuna then asked Mr. 	Miller to specify which
documents he believed were not 	included in the packet. 	Mr.
Miller responded that he did not need to specify which documents
he wanted. 	Ms. 	Ozuna indicated that Human Resources Officer,
Susan Fisher would respond to his inquiry. 	To date, 	Ms. 	Fisher
has not responded to Mr. 	Miller's inquiry.
On May 15, 	1998, Mr. Miller faxed a letter to Ms. 	Fisher, 	which
stated in pertinent part:
As you know, 	Article 17 of the UC/AFSCME
agreement, 	which currently sets the terms and
conditions of employment for employees 	in the
Clerical Bargaining Unit, 	entitles employees
and their representatives 	to one copy of
their entire personnel file.
. . . . 	. . .

Dismissal 	Letter
LA-CE-522-H
Page 3
As I indicated to your staff, 	the personnel
file of Marita Enescu which I received
yesterday appears to be incomplete. 	I would
appreciate it 	if you would review your
records and provide me with all material 	that
was not included. 	Also, 	please consider this
letter an ongoing request 	for any information
not currently in Ms. 	Enescu's file as it
becomes available.
On May 19, 	1998, Ms. Fisher responded to Mr. Miller's request
stating that some medical 	information was not released to Mr.
Miller, 	as Ms. 	Enescu had not signed a release for this
information. 	Under state and federal law, 	the release of medical
information requires 	specific authorization from the real party
in interest.
On May 27, 	1998, Ms. 	Enescu sent the University an authorization
letter, 	which authorized release of her medical records to Mr.
Miller. 	On May 28, 	1998, Mr. Miller sent a letter to Ms. 	Fisher
regarding the remainder of Ms. 	Enescu's personnel file. 	Mr.
Miller further stated that if Ms. 	Fisher was refusing to release
certain documents from Ms. 	Enescu's file, 	that the University
provide a list of what documents were not being disclosed.
On or about June 1, 	1998, Ms. 	Fisher rescinded Ms. Enescu's
layoff notice. 	On June 12, 	1998, Ms. 	Fisher provided Mr. Miller
with the remainder of Ms. 	Enescu's personnel file, 	including Ms.
Enescu's medical information.
In the second amended charge, 	Charging Party contends the
University's unlawful motive 	is demonstrated by the 	fact 	that
when Mr. 	Miller received the additional 	information on June 12,
1998, 	non-medical information was included in the packet.
Charging Party contends, 	thus, 	that the University deliberately
withheld information, 	in violation of Government Code sections
3571(a), 	(b) and (c). 	However, Charging Party's contention is
still misplaced.
In Stockton Unified School District 	(1980) 	PERB Decision No. 	143,
PERB relied on federal precedent to conclude that an exclusive
representative has a right to all 	information that 	is necessary
and relevant to the discharge of its duty to represent employees.
The employer is obligated to provide this 	information within a
reasonable time period. 	(Compton Community College District
(1990) 	PERB Decision No. 	790.) 	Reasonable promptness depends
upon the circumstances of the charge. 	(See also, 	Colonial Press.
Inc. 	(1973) 	204 NLRB No. 126.) 	In Colonial Press, 	supra. 	the
- -	NLRB found that 	the employers 	two month delay in providing the
union with a list of all employees was unreasonable given the

Dismissal 	Letter
LA-CE-522-H
Page 	4
circumstances. 	However, 	in United Engines. 	Inc. 	(1973) 	222 NLRB
50, 	91, 	the NLRB 	found that 	an employer did not violate 	the NLRA
when 	it 	provided most 	of 	the 	information 	requested within a month
of 	the 	request 	and 	two weeks before bargaining was 	supposed 	to
start.
In the 	instant 	charge, 	Charging 	Party asserts 	the University
failed to promptly provide 	the 	information 	requested. 	Facts
provided demonstrate, 	however, 	that 	Charging 	Party 	received most
of the information in Ms. 	Enescu's personnel 	file within six
working days 	of 	the 	request. 	Charging 	Party does 	not 	provide any
facts 	demonstrating 	this 	six day 	"turn around" 	violates 	the
HEERA. 	Additionally, 	upon receiving authorization 	from Ms.
Enescu to 	release her medical 	information, 	the University
provided 	the 	remainder 	of 	the 	information within 	ten working
days. 	Thus, 	all 	of 	the 	information requested was provided within
at most 	10 working days 	of each request. 	Further, 	CUE 	fails 	to
demonstrate why waiting 	10 	working days 	to 	receive 	the
information is unreasonable. 	Indeed, 	Charging 	Party requested
the 	information 	in 	conjunction with a grievance 	they 	intended 	to
file over Ms. 	Enescu's layoff notice. 	On or about June l, 	1998,
the University rescinded the 	layoff notice. 	As 	such, 	it 	seems
CUE was 	not 	harmed or prejudiced 	in any way by waiting 	10 	days 	to
receive the information. 	(See, 	Partee Flooring Mill 	(1954) 	107
NLRB 	1177 	(15-day delay not unreasonable.) 	Moreover, 	most 	of 	the
information requested by Mr. 	Miller, 	and necessary 	for 	the
grievance, 	was 	received in less 	that 	seven working days. 	As
such, 	the allegation 	fails 	to 	state a prima 	facie 	case 	and must
be 	dismissed.
II. 	Discrimination
The 	first 	amended charge alleged Ms. 	Enescu was 	retaliated
against 	when 	the University 	requested 	she 	sign a medical 	release
form, 	allowing the University to 	release her medical 	records 	to
CUE. 	Although Charging 	Party does 	not 	provide 	any additional
facts 	regarding this allegation, 	this Regional Attorney has 	had
several 	conversations with Mr. 	Miller regarding 	this 	allegation
and thus will 	reiterate 	the deficiencies 	in 	this 	contention.
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

Dismissal 	Letter
LA-CE-522-H
Page 5
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Ms. 	Enescu 	exercised protected 	rights 	by requesting 	a 	copy 	of 	her
personnel 	file 	on May 	6, 	1998.2 Charging 	Party 	contends 	the
University 	failed to release 	the 	information 	to Mr. 	Miller and
required Ms. 	Enescu 	to specifically authorize 	release 	of medical
information, 	because Ms. 	Enescu exercised her right 	to 	receive
the 	information. 	It 	is unclear whether any adverse action
occurred 	in the 	instant 	charge 	as Ms. 	Enescu's 	representative
received 	the 	information 	in a 	timely manner. 	Further, 	even
assuming 	the 	above 	stated actions 	constitute 	"adverse 	action,"
facts 	provided do not demonstrate 	the amount 	of 	time 	it 	took 	to
receive 	the 	information was 	elongated based on Ms. 	Enescu's
request 	through her union representative. 	As 	such, 	the
allegation 	fails 	to 	state a prima 	facie 	case.
III. 	Medical 	Separation
Article 	25 	of 	the AFSCME/University contract, 	which serves 	as 	the
parties 	status 	quo, 	states 	the 	following with regard to Medical
Separation.
A. 	When 	the University determines 	that 	an
employee 	is 	unable 	to 	perform satisfactorily
essential 	assigned 	functions 	due 	to a
disability or other medical 	condition, 	that
employee may be medically separated. 	. 	. 	.
If 	a non-probationary career employee 	who 	is
on an appropriate 	leave 	of 	absence 	related 	to
a medical 	condition has 	a 	specific 	return 	to
work 	date 	established by 	a 	health
practitioner licensed by 	the 	state 	in which
he/she 	practices 	and 	such 	return 	to work date
is within 180 	days 	of 	the beginning of 	the
leave of absence, 	the non-career employee
shall 	not, 	during 	the period between 	the
beginning 	of 	the 	leave 	of 	absence and 	the
initially established 	return 	to work date 	(a
maximum of 	180 	days) 	be medically separated.
C. 	Written notice 	of 	intent 	to medically
separate 	shall 	be 	given 	to 	the 	employee
2 Charging 	Party also 	contends Ms. 	Enescu engaged 	in
protected 	activity 	several 	years 	ago when 	the unit 	was
represented by AFSCME. 	However, 	these protected activities 	are
remote 	in time 	to the alleged 	"adverse action" 	herein, 	and thus
do not 	satisfy 	the nexus 	requirement 	of 	timing.

Dismissal 	Letter
LA-CE-522-H
Page 6
either by delivery of 	the notice to the
employee in person, 	or by Proof Of Service.
The notice shall:
1. 	inform the employee of the
action intended, 	the reason for the
action and the effective date of
the action, and
2. 	inform the employee of the
right to respond and to whom to
respond within ten calendar days
from the date of 	issuance of such
notice of intent in accordance with
instructions given by the
University in the written notice
sent to the employee.
D. 	After review of 	the employee's 	timely
response, 	if any, 	the University shall notify
the employee of any action to be taken. 	An
effective date of separation shall be at
least ten calendar days from the date of
issuance of notice of 	intention to separate
(pursuant to Section C, 	above) 	or timely
receipt of the employee's response, 	if any,
whichever is later.
On December 10, 	1997, 	Ms Enescu went out on an indefinite medical
leave.3 While there is some disagreement between Charging Party
and the University as to how the leave is classified for benefit
purposes, 	such disagreement is not relevant to the allegation
herein.. 	On December 18, 	1997, 	Staff Relations Officer, 	Paula
Ross, 	provided written notice to Ms. 	Enescu of her leave status
and further requested Ms. 	Enescu contact the University regarding
whether she chose to use Family Medical Leave for her condition.
On December 19, 	1997, Ms. Enescu telephoned Ms. Ross and
discussed with Ms. 	Ross her benefit rights and obligations while
on medical leave. 	Additionally, Ms. Ross provided Ms. 	Enescu
with information regarding a potential Workman's 	Compensation
claim. 	On. December 23, 1997, Ms. Ross provided written
confirmation of her conversation with Ms. 	Enescu and enclosed
with this letter an pamphlet regarding Ms. 	Enescu's rights and
responsibilities.
3 Apparently Ms. 	Enescu suffered a stroke and thus a return
date was uncertain, 	pending her recovery.

Dismissal 	Letter
LA-CE-522-H
Page 	7
Ms. 	Enescu did not 	return to work during January, 	February or
March of 1998. 	On March 17, 	1998, 	Ms. 	Enescu spoke with Ms. 	Ross
about a return date. 	At that 	time, 	Ms. 	Enescu 	indicated she
would be able 	to return to work on May 1, 	1998.
On April 	14, 	1998, 	Ms. 	Enescu was 	informed that 	she was being
laid off pursuant 	to Article 	13 	of 	the AFSCME 	contract. 	On May
5, 	1998, 	Mr. 	Miller filed a grievance regarding this 	layoff.
Additionally, 	Mr. 	Miller filed this 	charge and additional 	unfair
practice 	charges 	regarding Ms. 	Enescu. 	Ms. 	Enescu did not 	return
to work on May 1, 	1998. 	Ms. 	Enescu did not 	contact Ms. 	Ross
about her failure to return to work, 	nor did Ms. 	Enescu provide
any 	information 	from her physician 	regarding 	a 	return 	to 	work
date.
On May 26, 	1998, 	the University rescinded Ms. 	Enescu's 	layoff
notice, 	as 	she had not returned to work, 	and therefore 	could not
be afforded layoff 	rights under the 	contract. 	On July 14, 	1998,
after Ms. 	Enescu had used more 	than 180 	days 	of medical 	leave,
the University provided Ms. 	Enescu with written notice 	of 	its
intent 	to medically separate 	her 	from her employment. 	The
University 	further noted 	that 	the medical 	separation was 	a
business 	necessity, 	although the 	contract 	does 	not 	state 	the
University must 	provide a 	reasons 	for 	its 	action.
On July 16, 	1998, 	Ms. 	Enescu provided the University with a
letter from her doctor, 	dated the 	same day, 	stating 	that Ms.
Enescu might be able 	to return to work on September 	l, 	1998.4 On
that same day, 	Ms. 	Enescu spoke with Susan Fisher, 	Human
Resources 	Officer, 	regarding benefit 	eligibility and 	retirement
benefits.
On July 17, 	1998, 	Mr. 	Miller faxed a letter to Tina Simmons,
Employee Relations 	Officer, 	requesting 	further 	information about
the medical 	separation and an explanation as 	to why Ms. 	Enescu
was being separated. 	On that same day, 	Ms. 	Simmons 	faxed Mr.
Miller a 	response 	stating 	the 	University was 	separating Ms.
Enescu pursuant 	to Article 25 	of 	the 	contract.
On July 20, 	1998, Ms. 	Enescu, 	Mr. Miller and University
representatives Ms. 	Fisher and Ms. 	Simmons, 	met 	to discuss 	the
medical separation, 	pursuant to Article 25 (C). 	During this
meeting, 	Mr. 	Miller suggested the University rescind 	the medical
separation and instead allow Ms. 	Enescu 	to exhaust 	her accrued
leave or apply for early retirement. 	Mr. 	Miller also 	claims 	that
during this meeting, 	Ms. 	Simmons stated that 	if Ms. 	Enescu
4 Later 	information provided by Ms. 	Enescu 	demonstrates 	her
physician pushed back this date until November 	1, 	1998.

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LA-CE-522-H
Page 8
returned 	to her 	job 	she would be 	laid off 	as 	the 	job 	was 	being
eliminated. 	The University agreed to 	consider Mr. 	Miller's
alternatives.
On August 	10, 	1998, 	the University informed Ms. 	Enescu that 	she
would be medically separated effective August 	14, 	1998. 	The
University 	further 	stated 	that 	it 	had 	considered Mr. 	Miller's
alternatives, 	but was not willing to rescind its medical
separation. 	The University 	further provided Ms. 	Enescu with
information 	on how to appeal 	the medical 	separation decision.
Charging 	Party 	contends 	the medical 	separation was 	undertaken 	in
retaliation 	for Ms. 	Enescu's protected activities. 	As 	noted 	in
Section II, 	above, 	Ms. 	Enescu engaged in protected activity by
filing a 	grievance 	over her 	layoff 	and by allowing 	herself 	to 	be
the 	subject 	of 	two unfair practice 	charges. 	The University was
aware 	of 	this 	activity and Ms. 	Enescu was medically 	separated by
the University effective August 	14, 	1998. 	However, 	Charging
Party 	fails 	to demonstrate 	the 	requisite 	nexus.
Charging 	Party 	contends 	that 	in addition 	to 	the 	timing 	of 	the
adverse action, 	the University provided 	shifting 	justifications
for 	its action and disparately treated Ms. 	Enescu. 	With 	regard
to the shifting justifications, 	Charging Party contends Ms.
Simmons stated during the July 20, 	1998, 	meeting that 	even if Ms.
Enescu were 	to 	return to work, 	she would be 	laid off 	as 	the
division was 	being 	reorganized. 	Charging 	Party 	contends 	that
this 	reasoning differs 	from the University's 	"business 	necessity"
reason provided in Ms. 	Enescu's notice letter. 	However, 	it 	is
unclear how 	"business 	necessity" 	and 	lack of 	a 	job 	differ 	in
substance. 	The University had made clear, 	by Ms. 	Enescu's
initial 	layoff 	notice, 	that 	they 	intended to eliminate 	the
position. 	The 	elimination of 	a position does 	not 	seem contrary
to an explanation of business 	necessity, 	but 	instead seems 	to
further 	clarify 	the meaning 	of 	"business 	necessity."
Additionally, 	Charging Party contends Ms. 	Enescu was 	disparately
treated. 	As 	evidence of 	this 	disparate treatment, 	Charging 	Party
argues as 	follows. 	Article 25 	states 	that after 	180 	days 	of
medical 	leave, 	the University ma
--y medically separate 	an employee.
Charging 	Party argues 	thus 	that 	because 	the University 	has
discretion to medically separate-employees, 	its 	decision 	to
medically separate Ms. 	Enescu 	is disparate 	treatment. 	This
contention, 	however, 	does not demonstrate disparate treatment.
Charging 	Party does 	not 	provide 	facts 	demonstrating 	that 	other
employees, 	who 	could be medically separated and whose positions
are being eliminated, 	were not medically separated. 	Such 	facts
would demonstrate 	disparate 	treatment. 	The University's 	lawful
use 	of 	the policy does not 	satisfy the nexus 	requirement.

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LA-CE-522-H
Page 9
Finally, 	Charging 	Party argues 	the 	University 	failed 	to 	consider
Ms. 	Enescu's 	eventual 	ability 	to 	return 	to work 	in 	considering
the medical 	separation. 	Charging 	Party points 	to 	the 	physician's
letter, 	dated after the medical 	separation notice, 	as 	evidence
that Ms. 	Enescu 	could perform her job duties 	in 	the 	future.
However, 	Ms. 	Enescu 	failed to 	communicate with the University
regarding her condition, 	and that 	she was 	not able 	to 	return 	to
work for more 	than six months. 	The University's 	decision 	to
medically separate Ms. 	Enescu 	came 	four months 	after Ms. 	Enescu
had 	last 	contacted the University and more 	than 	2 	months 	after
she had indicated she would return to work. 	As 	such, 	the
University's 	decision was 	based 	on 	the 	information 	it 	possessed
at 	the time of 	its decision. 	Ms. 	Enescu's doctor's 	letter came
after 	the 	fact, 	and 	the University 	could not 	possibly have 	known
about Ms. 	Enescu's condition. 	As such, 	Charging Party's
contention that Ms. 	Enescu was medically separated because of 	her
protected activities 	is 	dismissed as 	the 	charge 	fails 	to
demonstrate 	the 	requisite nexus.
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,

Dismissal 	Letter
LA-CE-522-H
Page 10
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.)
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: 	Leslie Van Houten, 	Esq.

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
July 22, 	1998
Scott Miller
Coalition of University Employees
724 S. Sycamore Avenue, 	Suite 201
Los Angeles, 	CA 	90036
Re: 	WARNING LETTER
Coalition of University Employees v. 	The Regents of the
University of California
Unfair Practice Charge No. 	LA-CE-522-H; 	First Amended Charge
Dear Mr. Miller:
The above-referenced unfair practice charge, 	filed May 28, 	1998,
and amended July 10, 	1998, 	alleges the Regents of the University
of California 	(University) 	refused to provide information to the
exclusive 	representative and discriminated against 	employee
Marita Enescu. 	The Coalition of University Employees 	(CUE)
alleges this conduct violates Government Code section 3571(a) 	and
(b) 	of the Higher Education Employer-Employee Relations Act
(HEERA or Act).
Investigation of the charge revealed the following. 	Prior to
November 5, 	1997, 	the University's clerical employees were
represented by the American Federation of State, 	County and
Municipal Employees 	(AFSCME). 	The University and AFSCME were
parties to a collective bargaining agreement 	(Agreement) 	which
expires on June 30, 	1998.
Article 17 of the Agreement, 	entitled "Personnel Files", 	states
in pertinent part:
A. 	An employee shall, 	upon written request
to the University, 	have the opportunity to
review his/her personnel file(s) within a
reasonable time in the presence of a
representative of the University. 	At the
time of such request the supervisor, 	to the
extent he/she is aware of the location(s) 	of
such files, 	shall inform the employee of the
location(s) of the file(s).
D. 	Records protected by recognized legal
privilege and records 	excepted from
•
------

Warning 	Letter
LA-CE-522-H
Page 2
disclosure 	by 	law may 	be 	withheld 	from 	the
employee 	and/or 	the 	employee's
representative. 	Neither an employee nor
his/her 	representative 	shall 	be 	entitled 	to
review 	confidential 	pre-employment
information 	or 	confidential 	information
relating 	to 	transfers 	and promotions 	of 	the
employee out of his/her bargaining unit, 	nor
shall 	the 	employee 	or his/her 	representative
be 	entitled 	to 	review documents 	related 	to
internal 	University 	labor 	relations 	or
personnel 	policy or Agreement 	applications.
On November 21, 	1997, 	CUE was 	certified as the clerical
employees' 	exclusive representative. 	The terms and conditions 	of
the AFSCME Agreement 	provide 	the 	terms 	and 	conditions 	for members
of 	the 	clerical bargaining unit, 	until a new agreement 	is 	reached
between 	the 	University and 	CUE.
On May 6, 	1998, 	Marita Enescu, 	an Administrative Assistant II, 	at
the UCLA School 	of Dentistry, 	requested a 	copy of 	her personnel
file be made available 	to CUE 	representative Scott Miller. 	On
May 14, 	1998, 	Mr. 	Miller signed and dated a copy of Ms. 	Enescu's
written 	request, 	signifying 	that 	he had received a 	sealed copy of
Ms. 	Enescu's personnel file.
Upon opening 	the packet 	of 	information, 	which was 	approximately
an 	inch and one-half 	thick, 	Mr. 	Miller determined that 	it 	did not
contain a complete 	copy of Ms. 	Enescu's personnel 	file. 	Charging
Party does 	not 	explain how such a 	determination was 	made 	or what
documents were missing. 	Mr. 	Miller then telephoned the School 	of
Dentistry's 	Human Resources 	Office 	to 	obtain what 	he 	believed was
the remainder of Ms. 	Enescu's 	file. 	During Mr. 	Miller's
conversation with Minette Ozuna, 	an employee 	in the Human
Resources Department, 	Ms. 	Ozuna stated that 	there were documents
in Ms. 	Enescu's personnel 	file 	that were not 	included in the
packet. 	Ms. 	Ozuna then asked Mr. 	Miller to specify which
documents 	he believed were not 	included in the packet. 	Mr.
Miller 	responded 	that 	he 	did not 	need 	to 	specify which documents
he wanted. 	Ms. 	Ozuna indicated that Human Resources 	Officer,
Susan Fisher would respond to his 	inquiry. 	To date, 	Ms. 	Fisher
has not, responded to Mr, 	Miller's 	inquiry.
On May 15, 	1998, 	Mr. 	Miller faxed a letter to Ms. 	Fisher, 	which
stated 	in pertinent part:
As you know, 	Article 	17 	of 	the UC/AFSCME
agreement, 	which currently sets 	the terms 	and
conditions 	of 	employment 	for employees 	in 	the
Clerical Bargaining Unit, 	entitles employees

Warning Letter
LA-CE-522-H
Page 3
and their representatives to one copy of
their entire personnel 	file.
As I indicated to your staff, 	the personnel
file of Marita Enescu which I received
yesterday appears to be incomplete. 	I would
appreciate it if you would review your
records and provide me with all material 	that
was not included. 	Also, 	please consider this
letter an ongoing request 	for any information
not currently in Ms. 	Enescu's file as it
becomes available.
On May 19, 	1998, Ms. Fisher responded to Mr. Miller's request
stating that some medical 	information was not released to Mr.
Miller, 	as Ms. 	Enescu had not signed a release for this
information. 	Under state and federal law, 	the release of medical
information requires specific authorization from the real party
in interest.
On May 27, 	1998, 	Ms. 	Enescu sent the University an authorization
letter, 	which authorized release of her medical records to Mr.
Miller. 	On May 28, 	1998, Mr. Miller sent a letter to Ms. 	Fisher
regarding the remainder of Ms. 	Enescu's personnel file. 	Mr.
Miller further stated that if Ms. 	Fisher was refusing to release
certain documents from Ms. 	Enescu's file, 	that the University
provide a list of what documents were not being disclosed.
On or about June 1, 	1998, Ms. Fisher rescinded Ms. Enescu's
layoff notice. 	On June 12, 	1998, Ms. Fisher provided Mr. Miller
with the remainder of Ms. 	Enescu's personnel file, 	including Ms.
Enescu's medical 	information.
Based on the facts provided, 	the charge as presently written,
fails to state a prima facie violation of the HEERA, 	for the
reasons stated below.
Charging Party contends that the University has 	failed to provide
information to the exclusive representative and has 	retaliated
against Ms. 	Enescu. 	However, 	neither allegation states a prima
facie case.
I. 	Request for Information
In Stockton Unified School District 	(1980) 	PERB Decision No. 	143,
PERB relied on federal precedent 	to conclude that an exclusive
representative has a right to all 	information that 	is necessary
and relevant to the discharge of 	its duty to represent employees.
The employer is obligated to provide this 	information within a
reasonable time period. 	(Compton Community College District

Warning Letter
LA-CE-522-H
Page 4
(1990) 	PERB Decision No. 	790.) 	Reasonable promptness depends
upon the circumstances of the charge. 	(See also, 	Colonial Press.
Inc. 	(1973) 	204 NLRB No. 	126.) 	For example, 	in Colonial Press.
supra. 	the NLRB found that the employers two month delay in
providing the union with a list of all employees was unreasonable
given the circumstances. 	However, 	in United Engines. 	Inc. 	(1973)
222 NLRB 50, 	91, 	the NLRB found that an employer did not violate
the NLRA when it provided most of 	the information requested
within a month of 	the request and two weeks before bargaining was
supposed to start.
In the instant charge, Mr. Miller asserts the University failed
to promptly provide the information he requested. 	Facts provided
demonstrate, 	however, 	that Mr. Miller received most of the
information in Ms. 	Enescu's personnel 	file within six working
days of his request. 	Upon receiving authorization from Ms.
Enescu to release her medical 	information, 	the University
provided the remainder of the information ten working days later.
Thus, 	all of the information requested was provided within at
most 10 working days of each request. 	Further, 	CUE fails to
demonstrate why waiting 10 working days to receive the
information is unreasonable. 	Mr. 	Miller requested the
information in conjunction with a grievance he intended to file
over Ms. 	Enescu's layoff notice. 	On or about June 1, 	1998, 	the
University rescinded the layoff notice. 	As such, 	it seems CUE
was not harmed or prejudiced in any way by waiting 10 	days 	to
receive the information. 	(See, 	Partee Flooring Mill 	(1954) 	107
NLRB 1177 	(15-day delay not unreasonable.) 	Moreover, 	most of the
information requested by Mr. 	Miller, 	and necessary for the
grievance, 	was received in less that seven working days. 	As
such, 	the allegation fails to state a prima facie case.
II. 	Discrimination
Charging Party alleges 	the University discriminated against Ms.
Enescu by failing to provide Ms. 	Enescu's representative with the
requested information and by requiring Ms. 	Enescu to file a
medical release 	form.
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
LA-CE-522-H
Page 5
Ms. 	Enescu exercised protected rights by requesting a copy of her
personnel 	file on May 6, 	1998. 	Charging Party contends the
University failed to release the information to Mr. 	Miller and
required Ms. 	Enescu to specifically authorize release of medical
information, 	because Ms. 	Enescu exercised her right to receive
the information. 	It is unclear whether any adverse action
occurred in the instant charge as Ms. 	Enescu's representative
received the information in a timely manner. 	Further, 	even
assuming the above 	stated actions 	constitute 	"adverse action,"
facts provided do not demonstrate the amount of time it 	took to
receive the information was elongated based on Ms. 	Enescu's
request through her union representative. 	As such, 	the
allegation fails to state a prima facie case.
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 July 29. 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney