Regents of the University of California (Waters) (PERB 0694H)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
B. 	BENEDICT WATERS,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case No. 	LA-CE-220-H
PERB Decision No. 	694-H
July 26, 	1988
Appearances: 	B. 	Benedict Waters, 	on his own behalf; 	Susan H.
von Seeburg, 	Attorney, 	for 	The Regents 	of 	the University of
California.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is before 	the Public 	Employment 	Relations 	Board
(Board) 	on 	appeal by 	Charging 	Party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge 	that 	the 	Respondent
violated section 3571, 	subdivisions 	(a) 	and 	(d) 	of the Higher
Education 	Employer-Employee 	Relations 	Act. 	We have 	reviewed
the dismissal 	and, 	finding 	it 	to be 	free of prejudicial 	error,
adopt 	it 	as 	the 	Decision of 	the 	Board 	itself.
The 	unfair practice 	charge 	in Case 	No. 	LA-CE-220-H is
hereby 	DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD
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STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
(213)736-3127
Los Angeles, CA 90010-2334
3530 Wilshire Blvd , Suite 650
Los Angeles Regional Office
PUBLIC EMPLOYMENT RELATIONS BOARD
e
February 	2, 	1988
B. 	Benedict Waters
Of California, 	DISMISSAL OF UNFAIR PRACTICE CHARGE
Re: LA-CE-220-H, B. Benedict Waters v. Regents of the University
Dear Mr. Waters:
alleged 	to violate Government Code sections 3571(a) 	and 	(d).
County and Municipal Employees 	(AFSCME). 	This conduct is
between 	the University and the American Federation of State,
failing 	to distribute copies of 	the memorandum of understanding
California 	(University) 	interfered with employees' 	rights by
21, 	1987, 	alleges that the Regents of the University of
The 	above-referenced unfair practice charge, 	filed on September
prior 	to February 1, 	1988, 	it would 	be dismissed.
amended 	the charge to state a prima 	facie case, 	or withdrew 	it
charge accordingly. 	You were 	further 	advised that unless you
deficiencies explained 	in that letter, 	you should amend 	the
inaccuracies or 	additional facts which would correct the
case. 	You 	were advised that 	if there 	were 	any factual
that the 	above-referenced charge did 	not 	state 	a prima 	facie
I 	indicated to you 	in my attached letter dated January 25, 	1988
the facts and reasons contained in my January 25, 	1988 	letter.
amended charge and am therefore dismissing the charge based on
I have not received either a request for withdrawal or 	an
Right to Appeal
(See section 32135.) 	The Board's address 	is:
filing. 	Code of Civil Procedure section 1013 	shall apply.
States mail postmarked no later 	than 	the 	last date 	set 	for
(5:00 p.m.), 	or 	sent by telegraph, 	certified or Express United
received by 	the Board 	itself before 	the close of business
original and five copies of such appeal must be actually
Code, 	t i t l e 8, 	section 32635 (a)). 	To be timely filed, 	the
after 	service of 	this dismissal 	(California Administrative
an 	appeal to the Board 	itself within 	twenty 	(20) 	calendar days
may obtain a review of this dismissal of 	the charge by filing
----------	 Pursuant to Public Employment Relations Board 	regulations, 	you
Sacramento, CA 95814
1031 18th Street
Public Employment Relations Board

February 	2, 	1988
Dismissal 	of 	UPC/LA-CE-220-H
Page 	2
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
(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 	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 	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 	(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 	SPITTLER
Acting 	General 	Counsel
By Donn Ginoza
Regional 	A t t o r n e y
Attachment
cc: 	Susan H. 	Von Seeburg

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd . Suite 650
Los Angeles, CA 90010 2334
(213)736-3127
January 	25, 	1988
B. 	Benedict 	Waters
Re: 	LA-CE-220-H, 	B. 	Benedict Waters 	v. 	Regents 	of 	the 	University
of 	California
Dear Mr. 	Waters:
The 	above-referenced 	unfair 	practice 	charge, 	f i l e d 	on 	September
21, 	1987, 	a l l e g e s 	that 	the 	Regents 	of 	the 	University of
California 	(University) 	interfered 	with 	employees' 	rights 	by
f a i l i n g 	to distribute 	copies 	of 	the 	memorandum 	of 	understanding
between 	the 	University 	and 	the 	American 	Federation 	of 	State,
County 	and 	Municipal Employees 	(AFSCME). 	This 	conduct 	is
alleged 	to v i o l a t e 	Government 	Code 	sections 	3571(a) 	and 	(d) .
My 	investigation 	revealed 	the 	following 	facts. 	Charging Party
became 	employed 	at 	the 	University 	of 	California 	at 	Los 	Angeles
(UCLA) 	on May 20, 	1986 	in a casual p o s i t i o n . 	As 	a casual
employee, 	Charging 	Party was 	covered 	by 	the memorandum of
understanding 	negotiated between AFSCME 	and 	the 	University,
covering 	Unit 	11 	(Service) 	and Unit 	12 	(Clerical and Allied
Services).
Article 	2, 	section 	N.1. 	of 	the 	memorandum of understanding,
e f f e c t i v e 	from July 	1, 	1986 	through 	June 	30, 	1988, 	provides 	as
follows:
The 	employer 	shall 	be 	responsible 	for
reproducing 	a 	sufficient 	number 	of 	copies 	of
this 	Agreement. 	The 	University 	shall
determine 	the 	number 	of 	copies 	it 	needs 	in
order 	to 	provide 	copies 	of 	this 	Agreement 	to
i t s 	managerial, 	supervisory 	and 	confidential
personnel. 	The 	University 	shall 	be
responsible 	for 	the 	cost 	associated 	with 	the
reproduction 	of 	the 	number 	of 	copies 	it
needs. 	The 	Union 	shall be 	responsible 	for
for 	the 	cost 	of 	the 	number 	of 	copies 	needed
to provide 	a 	copy of 	this 	Agreement 	to 	each
employee 	presently 	covered 	by 	the 	Agreement
whether 	or 	not 	such 	employee 	is 	a member 	of
the 	Union. 	The 	Union 	shall 	also 	be
responsible 	for 	the 	cost 	of 	a 	sufficient
number 	of 	copies 	to 	provide 	new 	employees
with 	copies 	of 	the 	Agreement, 	whether 	or 	not
such 	new employees 	are 	or 	become 	members 	of
the 	Union. 	Additionally, 	the 	Union 	shall 	be

LA-CE-220-H
January 	25, 	1988
Page 2
responsible 	for 	the costs 	of 	any copies 	that
it 	needs 	for Union uses of 	the Agreement.
Article 2, 	section N.2. 	provides as follows:
Based 	upon 	a 	reasonable 	estimate of 	the
number 	of copies 	the 	respective parties 	need
to 	fulfill 	their 	respective 	obligations 	and
needs 	for copies, 	the University 	shall
inform the Union 	of 	that portion of 	the
reproduction costs 	which 	is 	to 	be paid 	by
the Union. 	Upon 	receipt of payment 	from the
Union 	for 	its 	share of 	the 	reproduction
costs, 	the University shall distribute one
copy 	of 	this Agreement 	and 	shall commence
distribution of one copy of 	the 	agreement 	to
each 	new employee 	covered 	by 	the 	Agreement
as 	those 	employees 	are 	hired. 	Concurrent
with 	the 	distribution 	to 	employees currently
covered 	by 	the 	agreement 	the 	University will
provide 	the Union with 	the number 	of copies
which 	are 	to be made 	available 	for Union
purposes.
Charging 	Party 	has 	alleged 	in 	related 	unfair 	practice charges
that 	he 	became 	the 	victim of 	employment 	discrimination
beginning 	on or 	after 	February 	2, 	1987 	and 	attempted 	on
February 	7, 	1987 	to file a grievance over 	the matter
(LA-CE-217-H). 	An agent of the University, Frank Martinez,
Personnel 	Representative 	for 	UCLA's Facilities Division,
Personnel 	and 	Payroll Department, 	allegedly 	falsely 	informed
him 	that 	he 	was 	required 	to complete 	the 	informal 	resolution
stage 	of 	the grievance process prior 	to 	filing 	a grievance,
when 	in 	fact the memorandum of 	understanding 	indicates 	that 	a
grievant must 	file 	a grievance 	within 	thirty 	(30) 	days 	of 	the
occurrence of 	the violation, 	regardless 	of 	the outcome of 	any
attempts 	at 	informal 	resolution. 	When 	he 	did 	file 	the
grievance 	in May 	1987, 	the University 	initially 	rejected 	the
grievance 	as being 	untimely. 	He claims 	that not having 	a copy
of 	the 	memorandum 	of 	understanding 	prevented 	him 	from 	knowing
about 	the 	timeliness 	requirements of 	the 	agreement.
Charging 	Party 	indicated 	to 	the 	undersigned 	in a 	telephone
conversation on October 	20, 	1987 	that he made 	attempts to
obtain a copy of 	the memorandum of 	understanding 	for 	the
purpose 	of 	ascertaining 	his 	rights 	thereunder. 	These 	attempts
included 	contacting 	representatives 	from 	AFSCME. 	Charging
Party 	indicated 	that 	he 	spoke 	with 	an 	AFSCME 	representative 	at
Bunche Hall 	in February 	1987 	about 	the 	agreement 	and 	that 	she
gave 	him a copy 	at 	that 	time. 	He 	also 	stated 	that 	in 	February
1987 	he spoke to Cliff Fried, 	a representative 	for 	AFSCME, 	who
stated 	that copies of 	the 	agreement 	were 	at 	the Wilshire

LA-CE-220-H
January 	25, 	1988
Page 3
office. 	In 	this conversation 	he 	raised 	the 	problem 	that copies
of 	the 	agreement 	had 	not 	been 	distributed 	to 	employees 	as
required 	by the Article 	2, 	section N.2. 	Charging 	Party
complains 	that 	Fried 	failed 	to 	offer 	him 	a 	copy 	of 	the
agreement 	or 	to 	arrange 	for 	a 	time 	when 	he 	could pick 	up a copy
at 	the Wilshire 	office. 	Charging 	Party 	further 	indicated 	that
he 	had 	heard 	from Andrea 	Ryan, 	an employee 	in 	Campus 	Architects
and 	Engineers, 	that 	copies 	were 	not 	distributed 	to 	employees 	at
the 	same 	time 	the 	managerial 	employees 	received 	their 	copies
because 	AFSCME 	had 	failed 	to provide 	the 	University 	with 	the
necessary 	funds 	for 	reproduction 	of 	the 	document.
Charging 	Party 	alleges 	in 	this 	unfair 	practice 	charge 	that 	the
University, 	acting 	in concert 	or 	collusion 	with AFSCME, 	has
deprived 	members 	of 	the 	bargaining 	unit 	of 	the 	information
contained 	in 	the 	memorandum 	of 	understanding 	by 	failing 	to
distribute 	copies, 	and 	that 	as 	a 	result 	he 	was personally
injured 	when 	the 	University 	rejected 	his 	grievance 	as 	being
untimely on May 	6, 	1987.
In 	support 	of 	the claim of collusion, 	Charging 	Party 	submitted
copies 	of 	an October 	28, 	1987 	Public 	Records Act 	request 	and
the 	University's 	response 	thereto, 	dated November 	9, 	1987 	from
Sandra 	J. 	Rich, 	Assistant Labor 	Relations Manager. 	In this
response 	the 	University 	indicated 	that 	(1) 	the Administrative
Information 	System containing 	a 	list 	of 	all 	employees 	would
have 	been 	used 	to 	calculate 	the 	number 	of 	employees 	initially
entitled 	to 	receive 	copy of 	the contract, 	(2) 	records 	for 	job
openings 	kept 	by 	the 	Employment 	Department provide 	a 	count 	of
the 	number 	of 	new hires entitled 	to 	receive 	a 	copy 	of 	the
agreement 	subsequent 	to the 	initial distribution, 	(3) 	the
distribution procedure 	for 	casual 	employees 	would 	be 	through
the 	Personnel Department, 	and 	(4) 	during 	the past 	several years
new 	employees 	were 	informed 	that 	the 	contract 	is 	available 	from
AFSCME. 	Charging 	Party 	asserts 	that 	this 	information 	request
response 	demonstrates 	that 	there 	has 	been 	no 	distribution of
contracts 	to casual 	employees 	or 	recent 	hires 	for 	several
years, 	although 	the University 	has 	the capability 	to distribute
copies. 	On this basis, 	the Charging 	Party contends 	the
University 	is 	in 	breach of 	its 	obligations 	under 	Article 	2,
section N.1. and 	section N.2.
Further, 	Charging 	Party has 	asserted 	that 	Antonia 	DeCuir,
Coordinator 	of 	the 	UCLA 	Instant 	Personnel 	Service 	(manages 	all
temporary 	hires 	including 	Charging 	Party), 	stated 	to 	him on
October 	22, 	1987 	that her 	department does 	not distribute 	a copy
of 	the 	contract 	to 	new hires 	and 	has 	never 	been asked 	to 	assist
in determining 	the 	number 	of 	future 	hires 	on which 	to 	base
estimates 	of 	the 	number 	of 	contracts 	which must 	be 	printed.
Frank 	Martinez 	is 	alleged 	to 	have 	also conceded 	that 	new hires
are 	not 	provided 	copies 	of 	the 	contract 	during 	orientation.
The 	University 	provided correspondence 	from Gregory 	L. 	Kramp,

LA-CE-220-H
January 25, 	1988
Page 	4
Deputy Director, 	Office of 	Labor 	Relations 	(Office 	of 	the
President, 	Berkeley Campus) 	to Nadra Floyd, 	Executive Director
of AFSCME, 	dated July 24, 	1986, 	in which Kramp confirms the
parties' 	June 	30, 	1986 meeting during 	which Floyd 	indicated no
interest 	in joining 	the University 	in the printing 	and
distribution of the agreement 	to employees 	in Units 	11 and 	12,
and 	on 	that 	basis 	the 	University denied 	any 	obligation 	to
distribute 	the copies.
Based on the 	facts as described 	above, 	the 	unfair practice
charge 	fails 	to 	state 	a prima 	facie 	violation of 	the 	HEERA for
the 	reasons which 	follow.
Statute 	of 	Limitations
As 	a preliminary matter, 	Charging 	Party 	has 	failed 	to 	file 	this
charge 	in a timely fashion. 	A complaint will 	not 	issue 	in
respect 	of 	any charge 	based 	upon an alleged 	unfair 	practice
occurring 	more 	than 	six months prior 	to 	the 	filing 	of 	the
charge. 	Government Code section 3563.2(a). 	Charging Party 	is
required 	to 	file 	a charge within six months of 	the date 	the
alleged 	violation 	is 	discovered 	or 	reasonably could 	have 	been
discovered. 	Regents 	of 	the University of 	California 	(1983)
PERB Decision Mo. 	359-H. 	In 	this case. 	Charging Party
indicates he 	attempted 	to 	file a grievance 	on 	February 	7,
1987. 	Within that month, 	he had 	received a copy of 	the
contract, 	knew of 	the distribution 	requirement, 	and had
realized 	that 	he had 	not 	received 	a copy upon his 	hire. 	He 	was
then 	on notice 	that 	the University was allegedly 	failing 	to
comply with 	the 	terms of 	the 	agreement. 	By 	speaking 	with
DeCuir 	and Martinez, 	he was 	later 	able to confirm that 	his
failure 	to 	receive 	a copy of 	the 	agreement 	as 	a new employee
was 	allegedly 	the University's policy.
Furthermore, 	the obligation of 	the University to 	reproduce
copies 	of 	the 	agreement 	for 	the 	entire 	bargaining 	unit 	(other
than 	new hires) 	would 	have 	been 	activated when the 	contract was
executed 	in July 	1986. 	Thus 	the 	repudiation would 	have
occurred 	when 	the 	parties 	ascertained 	their 	respective
positions 	regarding 	their 	mutual obligations 	in 	regard 	to 	the
matter. 	The correspondence provided 	by 	the 	University
indicates 	this may have occurred 	in July 	1986. 	Charging 	Party
could 	have 	reasonably discovered 	these 	facts 	or 	others
concerning 	the 	breach prior 	to March 	21, 	1987. 	As 	indicated
above, 	the University 	responded 	to his Public Records Act
request within 	twelve days. 	Since 	he was 	aware of 	the
University's 	obligations 	under 	the 	agreement 	in February 	and
could 	reasonably 	have 	discovered 	that 	the 	University 	had
allegedly 	repudiated 	or 	was 	in 	breach 	of 	the 	agreement 	prior 	to
March 	21, 	1987 	(six months preceding 	the filing), 	his charge 	is
not 	timely 	filed.
Charging Party's 	claim 	that 	the 	violation 	is 	a 	continuing 	one
does 	not 	have merit. 	A continuing 	violation 	will 	not 	be 	found

LA-CE-220-H
January 	25, 	1988
Page 	5
where 	the 	employer's 	conduct 	during 	the 	limitations 	period,
constitutes 	an 	unfair 	practice 	only 	by 	relation 	to 	the 	original
offense. 	El 	Dorado Union High 	School 	District 	(1984) 	PERB
Decision No. 	382.
Section 	3571(a) 	Violation
In 	order 	to 	state 	a prima 	facie 	violation of 	the 	HEERA 	under
Government 	Code 	section 	3571(a), 	it must be 	alleged 	that 	the
employer's 	conduct 	tends 	to 	or 	has 	resulted 	in 	some 	harm 	to
rights 	guaranteed 	by 	the Act. 	Carlsbad Unified 	School 	District
(1978) 	PERB Decision No. 	89.
Charging 	Party 	has 	failed 	to 	allege 	any 	facts 	from which 	it 	can
be 	concluded 	that 	any 	rights 	guaranteed 	by 	the 	HEERA 	have 	been
violated. 	Charging 	Party 	has 	admitted 	that 	he 	obtained 	a 	copy
of 	the 	memorandum 	of 	understanding 	from 	an 	AFSCME
representative 	in 	February 	1987 	and 	that 	he 	was 	told 	by AFSCME
representative, 	Fried, 	that copies were available at 	the AFSCME
office 	on Wilshire. 	Even 	if 	he were 	to deny now that 	he 	had
received 	a copy of 	the 	agreement, 	he 	failed 	to 	take 	sufficient
steps 	to obtain 	a copy 	from AFSCME. 	The mere 	failure 	of 	the
University 	to provide 	a 	copy of 	the 	agreement 	at 	the 	time 	he
became 	employed 	did 	not 	prevent 	him 	from 	ascertaining 	his
rights 	to 	file 	a grievance 	under 	the 	agreement 	and 	taking
appropriate 	steps 	to 	exercise 	them.
Charging 	Party's 	reference 	to Government 	Code 	sections 	3560(d)
and 	3561(a)1 	do 	support 	the 	claim 	that 	any 	injury 	to 	his
1/ 	Government 	Code 	section 	3560(d) 	provides 	as 	follows:
The 	people 	and 	the 	aforementioned
higher 	education 	employers 	each 	have 	a
fundamental 	interest 	in 	the
preservation 	and 	promotion 	of 	the
responsibilities 	granted 	by 	the 	people
of 	the 	State 	of 	California. 	Harmonious
relations 	between 	each 	higher 	education
employer 	and 	its 	employees 	are
necessary 	to 	that 	endeavor.
Government 	Code 	section 	3561(a) 	provides 	as 	follows:
It 	is 	the 	further 	purpose 	of 	this
chapter 	to 	provide 	orderly 	and 	clearly
defined 	procedures 	for 	meeting 	and
conferring 	and 	the 	resolution 	of
impasses, 	and 	to define 	and 	prohibit
certain practices 	which 	are 	inimical 	to
the 	public 	interest.

LA-CE-220-H
January 	25, 	1988
Page 6
rights 	has 	occurred. 	Section 	3560(d) 	establishes 	in 	the
broadest 	terms 	that 	"harmonious 	and 	cooperative 	labor 	relations
between 	the public 	institutions 	of 	higher 	education 	and 	their
employees" 	(Government Code 	section 	3560(a)) 	are 	necessary 	to
the 	universities' 	endeavor 	to provide 	higher 	education pursuant
to 	the 	legislative mandate. 	Government 	Code 	section 	3561(a)
states 	that 	it 	is 	the 	purpose 	of 	the 	HEERA to provide defined
procedures 	for 	collective 	bargaining 	and 	to 	prohibit 	certain
illegal practices. 	Neither 	of 	these 	sections defines what 	is
or 	is 	not 	an 	unlawful 	or 	unfair 	practice 	under 	the 	HEERA.
Section 	3571(d) 	Violation
Charging 	Party 	has 	also 	failed 	to 	allege 	a prima 	facie
violation under Government 	Code 	section 	3571(d). 	That
subdivision makes 	it 	unlawful 	for 	an employer 	to dominate 	or
control 	the 	administration 	of 	an employee 	organization 	so 	as 	to
render 	the 	employee 	representative 	unable 	to make 	wholehearted
efforts on behalf of 	the employees 	it 	represents. 	Santa Monica
Unified School District 	(1978) 	PERB 	Decision No. 	52; 	Antelope
Valley Community College District 	(1979) 	PERB Decision No. 	97.
See 	Clovis 	Unified 	School 	District 	(1984) 	PERB Decision No.
389. 	"Interference," 	although a 	lesser 	degree of 	intrusion
than 	"domination," 	is considered 	equally unlawful. 	This 	term
includes 	intruding 	into 	the 	internal 	functioning 	of 	the
organization, 	setting 	up a 	rival organization, 	or 	engaging 	in a
campaign 	to 	induce 	employees 	to 	support 	a particular 	union.
See 	Antelope Valley Community 	College 	District, 	supra. 	Lending
financial 	support 	or 	encouraging 	membership 	in a 	particular
union 	has 	also 	been 	found 	by 	PERB 	to constitute 	unlawful
"assistance."
Charging 	Party's 	theory 	appears 	to 	be 	that 	the University 	has
engaged 	in 	collusion 	with 	AFSCME 	in 	the 	non-enforcement 	of 	the
requirements 	in 	the contract 	for 	the 	distribution 	of 	copies 	of
the 	agreement. 	Even 	if 	such 	a 	theory could 	be conceived 	of 	as
unlawful domination, 	interference 	or 	assistance 	the 	facts
alleged 	fail 	to 	state 	a prima 	facie violation. 	The 	failure 	of
the 	University 	on 	this 	count 	does 	not 	render 	the 	employee
representative 	unable 	to make 	wholehearted 	efforts 	to 	represent
its 	employees 	nor 	does 	it 	otherwise 	significantly 	compromise
the union. 	(See, generally, Gorman, Labor Law, at pp. 	201-203;
lawful 	cooperation distinguished 	from 	unlawful 	support).
In 	the 	absence 	of 	any 	showing 	that 	the 	University 	interfered
with 	any 	rights 	guaranteed 	by 	the 	HEERA 	in violation 	of
Government 	Code 	section 	3571(a) 	or 	unlawfully 	assisted 	AFSCME
under 	Government 	Code 	section 	3571(d), 	Charging 	Party's claim
is 	reduced 	to 	that of 	a 	failure 	by the University 	to 	abide 	by
the 	terms of 	the memorandum of 	understanding 	as 	set 	forth 	in
Article 	2, 	sections N.1. and N.2. 	However, 	under 	Government
Code 	section 	3563.2, 	PERB 	"shall 	not 	have authority 	to enforce

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January 	25, 	1988
Page 7
agreements 	between 	the 	parties, 	and 	shall 	not 	issue 	a complaint
on 	any 	charge 	based 	on 	alleged 	violation 	of 	such 	an 	agreement
that 	would 	not 	also 	constitute 	an 	unfair 	practice 	under 	this
chapter." 	Since 	Charging 	Party 	has 	alleged 	no 	independent
theory 	for 	an 	unfair 	practice, 	a 	complaint 	cannot 	issue 	merely
to 	require 	compliance 	with 	the 	memorandum 	of 	understanding.
For 	these 	reasons, 	the 	charge 	as presently written does 	not
state 	a prima 	facie 	case. 	If 	you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	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 	Charge, 	contain 	all 	the 	facts 	and
allegations 	you 	wish 	to make, 	and 	be 	signe	- 	d 	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 	February 	1, 	1988, 	I 	shall dismiss
your charge. 	If you 	have 	any questions on how to proceed,
please call me at 	(213) 	736-3127.
Sincerely,
DONN GINOZA
Regional 	Attorney