Regents of the University of California (Waters) (PERB 0716H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
B. 	BENEDICT WATERS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
B. 	BENEDICT WATERS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
CaseNo.LA-CE-216-H
LA-CE-221-H
PERB Decision No. 716-H
December 30, 1988
CaseNo.LA-CE-217-H
Appearances; 	B. 	Benedict Waters, 	on his own behalf; 	Claudia Cate
and Susan H. 	Von Seeburg, 	Attorneys, 	for the Regents of the
University 	of 	California.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	The 	above-captioned unfair labor practice
cases 	are 	before 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	on exceptions 	filed by the 	Regents 	of the 	University of
California 	(University or 	Respondent) 	to 	the 	Statement 	of 	Reasons
for 	Dismissal 	of 	Complaint 	(attached hereto) 	issued by the 	PERB
)
)
)
)
)
)
)
)
)
)
______________ )
)
)
)
)
)
)
)
)
)
)
)
______________ )

administrative law judge 	(ALJ).1 The cases, 	filed by B. 	Benedict
Waters 	(Waters), 	were 	consolidated on appeal because they each
raise 	the 	same 	issue.
BACKGROUND
The ALJ dismissed each of 	the 	complaints 	based upon 	the
charging party's 	failure 	to 	present 	evidence 	sufficient 	to
establish a prima 	facie 	case 	of violation of 	the 	Higher 	Education
Employer-Employee Relations Act 	(HEERA).2 Both unfair labor
practice 	charges 	arose 	out of 	the 	University's 	handling of 	two
grievances 	that had been 	filed by Waters. 	At 	each of 	the
hearings, 	the ALJ determined that Waters 	had not 	established that
his 	complaints were 	subject 	to 	the 	grievance 	procedure 	set 	forth
in the 	collective 	bargaining agreement. 	The ALJ 	concluded 	that
since 	Waters 	failed to 	show his 	complaints 	were 	properly 	subject
to the 	grievance procedure, 	the University's 	actions with respect
to that procedure, 	whatever they might have been, 	caused no harm
1Although the ALJ 	stated his 	reasons 	for dismissing 	the
complaints 	at the hearings, 	the 	University requested that the
reasons 	be 	set 	forth in writing.
2HEERA is 	codified at Government Code 	section 	3560 	et 	seq.
The 	complaints 	in both cases 	alleged a violation of 	section
3571(a), which states:
It 	shall 	be unlawful 	for the higher education employer 	to:
(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.
N	2

to Waters 	and thus 	did not 	constitute 	a 	cognizable 	violation of
HEERA.
While not 	challenging the dismissals 	themselves, 	the
University 	excepts 	to 	the 	language 	contained 	in 	each 	Statement 	of
Reasons 	for 	Dismissal 	of 	Complaint on the 	grounds 	that portions
thereof 	could be 	"read out 	of 	context" 	and misconstrued as 	a
binding, 	substantive ruling of 	contract 	interpretation. 	The
University also excepts 	to 	some 	factual 	statements. 	In both
cases, 	Waters 	objected to the 	exceptions 	by asserting that 	the
University has 	no 	standing 	to 	file 	them.
The Board, 	after review of the entire record, 	finds 	that the
dismissals 	of 	the 	complaints were 	proper and that the 	Statements
of 	Reasons 	for Dismissal 	adequately 	set 	forth the 	grounds 	for
those dismissals. 	With minor modifications 	to 	some 	of 	the
findings 	of 	fact,3 we affirm the ALJ's decisions, 	consistent with
3In Case No. 	LA-CE-216-H/221-H, 	the University excepts 	to
the 	factual 	finding that 	"Waters' 	grievances 	were denied at the
first level of the grievance procedure" 	(emphasis added). 	The
University contends that: 	(1) 	the record in Case No. 	LA-CE-217-H
establishes 	that only one 	of 	the 	two 	grievances was 	denied 	at
first level; 	and 	(2) 	the University was precluded from
introducing the 	history of 	the 	second grievance 	in Case 	No.
LA-CE-216-H/221-H, 	We have 	reviewed the record 	and agree 	that 	it
contains 	no evidence 	as 	to 	the 	fate 	of 	the 	second grievance 	at
the 	first level.
In Case No. 	LA-CE-217, 	the University excepts to the ALJ's
finding 	that Waters 	and Martinez 	mentioned 	the 	collective
bargaining 	agreement 	in the 	course 	of 	their discussion 	over
Waters' 	desire to 	file a 	formal grievance. 	(Statement of Reasons
for Dismissal 	of Complaint, 	p. 	2.) 	Upon a review of the record,
we 	agree 	that 	the 	record 	contains 	no evidence 	to 	support 	a
finding 	that 	the 	collective 	bargaining 	agreement was 	discussed.
(TR., vol. 	I, pp. 	24-26, 	103, 	107.)
In both cases, 	the University excepts 	to the 	finding that
3

the 	discussion below.
DISCUSSION
The 	preliminary issue 	before 	the 	Board 	is whether 	the
University, 	as the responding party, 	has 	standing to challenge a
Statement of Reasons 	for Dismissal 	of Complaint. 	In Palos Verdes
and Pleasant Valley School 	District 	(1979) 	PERB Decision No. 	96,
the 	hearing 	officer 	dismissed 	an unfair 	practice 	charge 	on 	the
grounds 	that 	the 	school 	district had not violated 	its 	duty 	to
bargain, 	but 	in 	so ruling made 	findings 	that 	some 	subjects were
within 	the 	scope 	of bargaining. 	The district 	filed exceptions 	to
attack 	those 	findings. 	In 	finding the 	appeal 	properly before 	the
Board, 	PERB stated that:
It is well-recognized in civil matters, 	while
a 	party may not 	ordinarily appeal 	a 	judgment
in its 	favor, 	an appeal 	is proper if the
judgment 	apparently in a party's 	favor 	is
actually 	against 	that party.
(See 	also 	Fresno 	Unified 	School 	District
(1981) 	PERB Decision No. 	156.)
In 	support of 	its 	conclusion, 	PERB noted that its
regulations 	provide 	that 	a party may 	file 	exceptions 	to 	a 	Board
agent decision. 	The regulations 	do not make 	a party's 	right to
file 	exceptions 	to 	a decision dismissing a 	complaint 	conditional
"The contract was in effect from July 	1, 	1986, 	to June 30, 	1988"
on 	the 	grounds 	that 	said 	contract was 	modified by reopener
negotiations 	in 	1987 	resulting in a new contract 	effective
January 4, 	1988 through June 	30, 	1989. 	We note that PERB's 	files
do 	not 	contain the 	new agreement.
4

upon the outcome of the 	case.4
PERB 	Regulation 	32635 	and 	Duarte 	Unified 	School 	District
(1983) 	PERB Decision No. 	281, 	relied upon by Waters to 	support
his 	argument 	that only a 	charging party may 	file 	exceptions 	to 	a
dismissal, 	are inapposite. 	Both the regulation and the 	case
pertain only to 	the 	appealability 	of 	the dismissal 	of 	a 	charge
based on a 	decision not 	to 	issue 	a 	complaint.5
P'PERB	ERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	part III, 	section 31001 et seq. 	PERB Regulation
32300, 	Exceptions to Board Agent Decision, 	provides, 	in pertinent
part:
(a) 	A party may 	file with the board 	itself
. 	. 	. 	a statement of exceptions to a Board
agent's 	proposed 	decision 	issued 	pursuant 	to
section 32215 	. 	. 	. 	(emphasis added).
Section 	32215, 	entitled Proposed Decision, 	is 	contained in
Chapter 3, 	entitled HEARINGS, 	of PERB's Regulations. 	Thus,
Regulation 	32300(a) 	pertains 	to exceptions 	to dismissals 	of
complaints 	as 	opposed to dismissals 	of 	charges.
S'PERB	PERB 	Regulation section 	32635 	states, 	in pertinent part,
that:
(a) 	Within 20 days of the date of 	service of
a dismissal, 	the 	charging party may appeal
the 	dismissal 	to 	the 	Board 	itself 	. . . .
(b) 	Unless good cause is 	shown, 	a charging
party may not 	present 	on 	appeal 	new charge
allegations 	or new 	supporting 	evidence.
(c) 	If the charging party files 	a timely
appeal 	of the refusal, 	any other party may
file with the 	Board 	itself 	an original 	and
five 	copies 	of 	a 	statement in opposition
within 	20 	days 	following 	the date 	of 	service
of the appeal. 	. 	. 	. 	(emphasis supplied).)
When read 	in the 	context 	of 	the 	entire 	statutory 	scheme 	(See
e.g., 	section 32530), 	the 	"dismissal" 	and "refusal" 	in section
3263 5 must be 	construed to refer to the decision of a Board agent
not 	to 	issue 	a 	complaint based on a 	finding that 	an unfair
5

Although we 	find that 	the 	University in this 	case 	does 	have
standing to except to a Statement of Reasons 	for Dismissal 	of
Complaint, 	we believe 	that the opening paragraph of 	each
Statement 	of 	Reasons 	for 	Dismissal 	of 	Complaint makes 	clear 	the
ground 	for 	the 	dismissal 	as 	does 	the record itself.6
ORDER
For the 	foregoing reasons, 	we 	find the decisions dismissing
the 	complaints 	are 	free 	from prejudicial 	error.
Chairperson Hesse 	and Member 	Camilli 	joined 	in 	this 	Decision.
practice 	charge does not 	state 	a prima 	facie 	case. 	Similarly,
the 	Board's holding in Duarte 	Unified School 	District 	(1983) 	PERB
Decision No. 	281 	must be limited to cases where a 	charge, 	as
opposed to a complaint, 	has been dismissed.
6As 	the 	University itself points 	out, 	the 	University cannot
be 	collaterally 	estopped 	from relitigating 	any 	issue 	that 	it was
precluded 	from 	fully litigating before 	this 	Board. 	The 	entire
record would be 	admissible 	in 	a 	later 	proceeding 	for 	the 	purpose
of 	determining what 	issues were 	fully litigated. 	(See 	generally
7 Witkin, 	Cal. 	Procedure 	(3d ed. 	1985) 	section 255.)
66

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
B. 	BENEDICT WATERS,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case No. LA-CE-216-H
LA-CE-221-H
STATEMENT 	OF 	REASONS 	FOR
DISMISSAL 	OF 	COMPLAINT
At 	the 	close 	of 	presentation 	of 	evidence 	by the 	charging
party in these consolidated cases on May 20, 	1988, 	I dismissed
the 	complaint 	because 	of 	the 	charging party's 	failure 	to
present 	evidence 	sufficient 	to establish a prima 	facie 	case 	of
violation 	of 	the 	Higher 	Education 	Employer-Employee 	Relations
Act 	(HEERA). 	At that time, 	I 	stated my reasons 	for dismissing
the complaint. 	At 	the request of the respondent, 	I 	agreed to
set 	forth 	in 	this 	second 	format 	my reasons 	for 	dismissing 	the
complaint.
FINDINGS OF FACT1
In February 1987 	charging party Benedict Waters, 	then a
casual 	(temporary) 	employee of 	the University of California at
Los 	Angeles, 	became 	dissatisfied with 	two actions 	of 	the
University: 	(1) 	In Waters' 	view, 	the University, 	for racially
•'-The 	facts 	set 	out below are undisputed. 	Almost 	all 	the
facts 	recited here 	are 	admitted 	in the University's Answer 	to
the Complaint.
)
)
)
)
)
)
)
)
)
)
_____________ )

discriminatory 	reasons, 	refused 	to hire him 	for 	a permanent
position; 	and 	(2) 	a managerial 	employee 	in his department made
racially discriminatory 	remarks 	to him about 	purely personal
behavior 	on non-working 	time.
2
On or about 	May 6, 	1987, 	charging party filed a 	grievance
challenging both of these actions, 	alleging that 	each was 	a
manifestation of 	racial discrimination. 	The 	grievance was
filed pursuant 	to Article 4 	of 	the 	collective bargaining
agreement between 	the 	University and 	the 	American 	Federation 	of
State, 	County and Municipal Employees, 	which covered the
"Clerical 	and 	Allied 	Services 	Unit." 	That 	unit 	included Waters
and 	other employees 	in 	similar positions.
On or about May 19, 	1987, 	Waters 	filed a second grievance
alleging 	racial 	discrimination 	in 	the 	University's 	refusal 	to
hire him 	for 	a 	specified permanent 	position.
For 	reasons 	that are not relevant here, 	Waters' 	grievances3W
were 	denied 	at 	the 	first 	level of 	the 	grievance procedure.
He 	sought review of his grievance at 	the 	second level, 	as
defined by 	the 	contract.
On or about June 17, 	1987, 	Waters 	filed with the 	state
Department 	of Fair Employment 	and Housing 	(DFEH) 	a 	charge 	of
2Nothing herein 	is 	intended as 	a 	finding of 	fact 	on 	the
correctness 	of 	the 	charging party's 	allegations 	of
discriminatory 	behavior.
3This 	first-level denial 	was 	the 	subject of 	PERB case
number LA-CE-217-H.
N
	2

employment 	discrimination by the 	University, 	based on 	the
incidents 	that 	were 	the basis 	of his 	two grievances.
On June 	19, 	1987, 	the University informed Waters 	that 	it
would 	not process his May 19 	grievance 	any 	farther because 	the
subject 	of 	the 	grievance was 	the 	same as 	the 	subject 	of 	a
discrimination 	complaint 	that 	Waters 	had 	filed 	with 	the 	DFEH.
On June 	22, 	1987, 	the University informed Waters 	it would
refuse 	to process his May 6 	grievance 	for 	the 	same 	reason.
In refusing to process the 	two grievances, 	the University
relied 	on 	Section 	F 	of Article 	4 	("Nondiscrimination 	in
Employment") 	of 	the 	collective bargaining agreement. 	That
section provided, 	in pertinent part:
Except by mutual 	written 	agreement 	of 	the
University and AFSCME, 	a grievance alleging
a violation of 	this Article 	shall 	not 	be
processed 	through Article 	6 	- Grievance
Procedure on behalf 	of 	any 	employee(s) 	who
files 	or 	prosecutes 	on his/her 	behalf 	. . .
in any court 	or 	governmental 	agency a 	claim,
complaint 	or 	suit 	under 	applicable 	federal,
state, 	county or municipal 	law or 	regulation
complaining 	of 	the action grieved. 	The
grievance 	of 	any employee who 	is 	or becomes
involved 	in 	such actions 	shall 	be 	considered
to be withdrawn at 	the 	time 	such 	employee(s)
becomes 	party to 	such action.
THE 	LEGAL THEORY OF 	THE COMPLAINT
The complaint 	alleges 	that by applying Article 4, 	Section F,
4
the 	University violated Government 	Code 	section 	12940(f),
4The 	complaint 	initially 	specified 	section 	12940(e).
Without objection by respondent, 	it 	was 	amended at hearing 	to
refer to subsection 	(f) 	of section 12940.
w	3

a 	section 	of 	the 	California 	Fair 	Employment 	and 	Housing
Act.
55 By so doing, 	the 	complaint 	alleges, 	the University
violated 	sections 	3598 and 3571(a) 	of HEERA.
Government Code Section 12940 provides, 	in pertinent part,
as 	follows:
It 	shall 	be 	an 	unlawful 	employment
practice 	. 	. 	. 	(f) 	For any employer 	. . . 	to
discharge, 	expel or otherwise discriminate
against any person because the person 	. 	. 	.
has 	filed a 	complaint, 	testified or 	assisted
in any proceeding under 	[the 	Fair 	Employment
and Housing Act].
HEERA section 3598 provides, 	in 	its 	entirety:
No 	memorandum of 	understanding 	shall
contravene any 	federal 	or 	state 	law,
including 	rules 	and 	regulations 	promulgated
pursuant to such laws, 	prohibiting
discrimination 	in employment.
HEERA section 3571(a) 	makes 	it 	unlawful 	for 	a higher
education 	employer 	to 	intefere with 	employees 	in 	their 	exercise
of 	rights 	protected 	by HEERA.
Waters' 	theory in 	this case 	is 	that 	the University
discriminated 	against 	him by basing 	its 	refusal 	to process 	his
grievances 	on 	the 	fact 	that 	he 	filed discrimination 	charges
under 	the 	state's 	Fair 	Employment and Housing Act. 	That 	is,
the University treated him differently, 	and worse, 	than 	it
would have 	treated 	a 	grievant who had 	not 	filed 	a
discrimination 	complaint 	under 	the 	state's 	Fair 	Employment 	and
5The 	Fair 	Employment 	and 	Housing Act 	begins 	with
government 	code 	section 	12900.
44

Housing Act. 	By discriminating against him 	in 	this 	way, 	Waters
argues, 	the University violated section 12940(f).
Further, 	the argument goes, 	because Article 4, 	Section F,
by authorizing 	such 	treatment, 	contravenes 	Government 	Code
section 12940(f), 	(a state law which prohibits discrimination
in employment) 	it violates HEERA section 3598.
Finally, 	the 	complaint 	alleges, 	by violating 	section 3598,
the University also violated 	section 3571(a), 	in that 	its
actions 	interfered with Waters' 	statutory right 	to use 	the
grievance procedure 	of 	the 	collective bargaining agreement.
DISCUSSION AND ANALYSIS
Section 	3565 	of 	the Higher Education Employer-Employee
Relations Act provides, 	in pertinent part:
Higher 	education 	employees 	shall have 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	employee organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation on all 	matters 	of
employer-employee relations. 	. 	. 	.
As noted above, 	HEERA section 3571 provides, 	in pertinent
part, 	that 	it 	shall be 	unlawful 	for 	a higher 	education 	employer
to 	interfere 	with 	employees 	in the 	exercise 	of 	rights protected
by the 	statute.
In 	Regents 	of 	the 	University of 	California 	(1983) 	PERB
Decision No. 	308, 	PERB held that 	section 3565 protects 	the
right 	of higher 	education 	employees 	to present 	grievances 	to
their 	employers. 	In North Sacramento School 	District 	(1982)
PERB Decision No. 	264, 	the 	Board held 	that 	essentially
55

identical 	language 	in 	section 	3543 	of 	the 	Educational
Employment 	Relations Act 	(EERA) 	guarantees 	employees 	the 	right
to 	"assert 	rights 	established by the 	terms 	of 	a 	negotiated
agreement," 	including the 	right 	of 	an 	individual 	employee 	to
file a grievance 	under 	the contract. 	This holding 	is 	cited
with approval by the 	Board 	in 	the Regents decision, 	PERB
Decision No. 308.
The 	AFSCME 	contract 	covering 	the 	"Clerical 	and Allied
Services" 	unit defines a 	"grievance" 	as 	"a written complaint
involving 	an 	alleged 	violation of 	a 	specific provision 	of 	this
Agreement during 	the 	term of 	this Agreement." 	The 	contract
allows 	an 	individual 	employee 	to 	file 	a 	grievance 	under 	the
contract 	(Article 6, 	Section A . 5 . ) .
The 	contract 	includes 	an 	article 	entitled
"Nondiscrimination 	in Employment," 	Article 4. 	That 	article
prohibits discrimination 	in application 	of 	the provisions 	of
the contract: 	The 	first 	sentence of 	that 	article provides, 	in
pertinent part:
The provisions 	of 	this Agreement 	shall be
applied 	to all 	members 	of 	the bargaining
unit 	within 	the 	limits 	imposed by law or
University 	regulations 	without 	regard 	to
race, color, 	. 	. 	. national origin. 	. 	. 	.
This 	sentence declares 	that 	all provisions 	of 	the 	contract
shall be 	enforced without 	discrimination based on race, 	color
6
6
I have 	taken 	official 	notice 	of 	the 	collective
bargaining agreement, 	which is 	in PERB's 	files. 	Mendocino
Community College District 	(1980) 	PERB Decision No. 	144. 	The
contract was 	in effect 	from July 1, 	1986 	to June 30, 	1988.
•
6

or national origin. 	However, 	no other provision of 	the
article, 	and no other provision of the contract, 	speaks 	of
discrimination 	with 	respect 	to aspects 	of 	employment 	that 	are
not 	covered by provisions 	of 	the 	contract.
Article 4 provides 	that 	violations 	of 	the Article 	may be
grievable to various degrees, 	depending on 	the nature 	of 	the
grievance 	alleged.
Waters 1 grievances had 	to do with a hiring decision 	and
with allegedly racist 	comments 	made 	to Waters by a 	supervisor
about 	a personal matter. 	Neither 	of 	these 	subjects 	is 	covered
by 	any provision 	of 	the 	collective bargaining 	agreement.7V
Thus, 	neither 	of 	the actions complained of 	in the grievances
was 	grievable 	under 	the 	collective bargaining 	agreement.
Under this analysis, 	it 	is not necessary to analyze the
meaning of Sections 	12940(f) 	or 3598. 	Waters had no
contractual 	right 	to pursue his 	grievances 	through 	the 	contract
grievance procedure. 	Therefore, 	whatever actions 	the
University took 	in 	connection 	with 	the 	two discrimination
grievances which Waters 	filed, 	the University did not, 	by these
actions, 	deny Waters 	the 	right 	to avail himself of any contract
7It 	is possible 	that 	the 	University provides 	to 	employees
a 	non-contractual 	method 	of 	challenging, 	as 	discriminatory,
employment-related 	actions 	which are 	not 	covered 	by 	the
contract. 	There 	is 	no evidence that Waters 	tried 	to pursue any
other administrative remedy. 	In any event, 	this 	case concerns
only Waters' 	contract 	grievances 	and 	the University's 	response
to them. 	.
77

rights. 	It 	follows 	then that 	the University, 	by these same
actions, 	did 	not 	deny Waters 	any right 	protected by 	the HEERA.
In 	the hearing held 	in this case on May 20, 	the 	undersigned
administrative 	law 	judge 	noted 	that 	all 	the 	factual 	allegations
of 	the 	Complaint 	were admitted by the 	University's Answer. 	The
charging party presented 	as 	evidence 	during his 	case-in-chief
just two exhibits, 	these being the two grievances, 	one 	filed
on May 6, 	the other on May 19, 	1987. 	The charging party did
not 	testify or 	call 	any witnesses 	to testify. 	The
administrative 	law 	judge placed 	in 	evidence 	the 	two University
letters 	advising Waters 	that his 	grievances 	would not 	be
processed, 	in view of the discrimination 	complaints he had
filed with the 	DFEH.
The hearing 	officer 	then advised Waters 	of 	the 	legal
analysis 	set out above, 	and advised him that, 	in the absence of
additional evidence, 	his complaint would be dismissed. 	Waters
chose 	to present 	no additional 	evidence. 	The complaint 	was
thereupon 	dismissed.
Pursuant 	to California Administrative Code, 	title 8,
part III, 	section 32305, 	the dismissal order of May 20, 	1988
shall become 	final 	unless 	a party 	files 	a 	timely 	statement 	of
exceptions with 	the Board 	itself at 	the headquarters 	office 	in
Sacramento within 	20 	days of 	service of 	this 	Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
should 	identify by page citation or 	exhibit 	number 	the 	portions
of the record, 	if any, 	relied upon 	for 	such exceptions. 	See
8

California Administrative Code 	title 8, 	part 	III,
section 	32300. 	A document 	is 	considered 	"filed" 	when actually
received before 	the 	close 	of business 	(5:00 p.m.) 	on 	the 	last
day set 	for 	filing, 	". 	. 	. o r when sent by telegraph or
certified or 	Express 	United States 	mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See California.
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of
exceptions 	and 	supporting brief 	must be 	served 	concurrently
with 	its 	filing 	upon each party to this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy served 	on a party or 	filed
with the Board 	itself. 	See California Administrative Code,
title 8, part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	May 27, 	1988 	Dated tesslerMARTIN 	FASSLER
Administrative 	Law 	Judge
9

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
B. 	BENEDICT WATERS,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case NO. LA-CE-217-H
STATEMENT 	OF 	REASONS 	FOR
DISMISSAL 	OF 	COMPLAINT
At 	the 	close 	of presentation 	of 	evidence by the 	charging
party, 	May 19, 	1988, 	I dismissed the complaint 	in this case
because 	of 	the charging party's 	failure to present 	evidence
sufficient 	to 	establish a prima 	facie 	case 	of 	violation of 	the
HEERA. 	At 	that time, 	I 	stated my reasons 	for dismissing the
complaint. 	However, 	at the request of 	the respondent, 	I agreed
to 	set 	forth 	in 	this 	second 	format 	my reasons 	for 	dismissing
the complaint.
STATEMENT 	OF 	FACTS
In February 1987 	charging party, 	then a casual 	(temporary)
employee of 	the 	University of California at Los Angeles, 	became
dissatisfied with two actions of the University: 	(1) 	In
Waters' 	view, 	the University, 	for racially discriminatory
reasons, 	refused to hire him for a permanent position, 	which,
he alleges, 	he had been told would be his; 	and 	(2) 	a managerial
employee 	in his 	department 	made 	racially discriminatory remarks
)
)
)
)
)
)
)
)
)
)
____________ )

l
to him 	about 	purely personal behavior 	on 	non-working 	time.1
Waters 	consulted with 	Frank Martinez, 	a University employee
with responsibility 	for personnel 	matters 	in Waters'
department, 	Architecture and Engineering. 	Waters 	explained 	to
Martinez his desire 	to 	file a 	grievance about 	each of 	these
matters, 	pursuant 	to the collective bargaining agreement
between 	the 	University and 	the American Federation of 	State,
County and Municipal 	Employees 	(AFSCME) 	covering 	the 	"Clerical
and Allied Services" 	unit, 	which 	included Waters. 	Martinez,
according to Waters' 	testimony, 	told Waters that, 	under the
contract, 	he was 	not permitted to 	file a grievance about 	either
matter 	until 	after 	making an 	"informal" 	effort 	to bring about 	a
resolution of 	the problems.
2
Waters 	pursued 	the 	two problems 	informally with 	the
department chairman, 	Charles Oakley. 	In late April, 	Oakley
sent 	Waters 	a 	letter, 	informing him that 	the permanent 	position
Waters 	was 	seeking was 	not going to be 	filled, 	for 	budgetary
reasons. 	In 	the 	same letter, 	Oakley told Waters 	that whatever
comments 	had 	been 	made 	to Waters 	by the 	managerial 	employee
1Waters 	alleges 	Barbara Corona-Sutton, 	executive
assistant 	in the department which employed Waters, 	criticized
Waters, 	a black man, 	for 	the manner 	in which he walked with his
girl 	friend, 	a white woman, 	during their 	lunch hour, 	on the
UCLA campus.
2 The 	University denies 	the 	accuracy of 	this 	version of
the conversation between Waters and Martinez. 	For 	reasons 	that
will be 	apparent, 	there 	is no need to determine 	the accuracy of
the 	testimony.
N2

about his 	personal 	conduct were not 	made on behalf of 	the
department.
On May 6, 	1987, 	less 	than ten days after he received
Oakley's 	letter, 	Waters 	filed a grievance about both matters.
On May 21, 	1987, 	Gail Cowling, 	a labor relations specialist 	in
the University's personnel department, 	denied the grievance on
the ground 	that 	it 	was not 	filed within 30 	days of the
occurrence of the 	incidents. 	She 	stated in her letter, 	"Any
attempts 	at 	informal 	resolution do not 	waive 	the 	30 	day 	filing
deadline set 	forth 	in Article 6, 	Section D.2. [of the
collective bargaining agreement]"
Waters 	appealed 	this 	decision 	to 	the 	second 	level 	of 	the
grievance procedure, 	where 	it was dismissed 	for reasons not
3
relevant here.
As 	charging party, 	Waters alleges 	that 	the University's
action - 	dismissing his 	grievance 	for 	Untimeliness, 	after 	he
delayed 	initial 	submission of 	the 	grievance based 	on 	(possibly
incorrect) 	instructions 	from a University personnel 	officer 	-
amounts 	to 	interference with Waters' 	statutory right 	to present
a grievance pursuant 	to the collective bargaining agreement, 	in
violation of Government Code Section 3571(a).
DISCUSSION AND ANALYSIS
Section 	3565 	of 	the 	Higher 	Education Employer-Employee
Relations Act provides, 	in pertinent part:
33
3
The	The 	second-level dismissal 	is 	the 	subject of 	two other
complaints, 	numbered LA-CE-216-H and LA-CE-221-H.

Higher 	education employees 	shall have 	the
right 	to 	form, 	join and participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the purpose 	of
representation on all matters 	of
employer-employee 	relations. 	. . .
HEERA section 3571 provides, 	in pertinent part, 	that 	it
shall 	be unlawful 	for 	a higher 	education 	employer 	to 	interfere
with 	employees 	in 	the 	exercise 	of 	rights protected by 	the
statute.
In 	Regents 	of 	the University of California 	(1983) 	PERB
Decision No. 	308, 	PERB held that 	section 3565 protects 	the
right 	of higher 	education employees 	to present 	grievances 	to
their 	employers. 	In North Sacramento School 	District 	(1982)
PERB Decision No. 	264, 	the Board held that 	essentially
identical 	language 	in 	section 3543 	of 	the Educational
Employment 	Relations Act 	(EERA) 	guarantees employees 	the right
to 	"assert 	rights- established by the 	terms 	of a negotiated
agreement," 	including 	the 	right 	of 	an 	individual 	employee 	to
file 	a grievance under 	the contract. 	This holding 	is cited
with approval by the 	Board 	in the 	Regents 	decision, 	PERB
Decision No. 308.
The AFSCME 	contract 	covering 	the 	"Clerical 	and Allied
Services" 	unit allows an 	individual 	employee to 	file 	a
grievance under the contract (Article 6, Section A.5.).4
4 I have 	taken official 	notice 	of 	the 	collective
bargaining agreement, 	which is in PERB's files. 	Mendocino
Community College District 	(1980) 	PERB Decision No. 	144. 	The
contract was 	in effect 	from July 1, 	1986 to June 30, 	1988.
4
4

Further, 	the contract includes an article entitled
"Nondiscrimination in Employment," Article 4. 	That article
does not reach all 	forms of nondiscrimination. 	The first
sentence of that article provides, 	in pertinent part:
The provisions of this Agreement shall be
applied to all members of the bargaining
unit within the 	limits 	imposed by law or
University regulations without 	regard to
race, 	color, 	. . . 	national origin. 	. . .
This sentence declares that all provisions of the contract
shall be enforced without discrimination based on race, 	color
or national origin. 	No other provision of the article, 	and no
other provision of the contract, 	speaks of discrimination with
respect to aspects of employment that are not covered by
5
provisions of the contract.
Article 4 provides that violations of 	the Article may be
grievable to various degrees, depending on the nature of the
grievance alleged.
Waters' 	grievance had to do with a hiring decision and with
allegedly racist comments made to Waters by a 	supervisor about
a personal matter. 	Neither of these subjects 	is covered by any
provision of the collective bargaining agreement. 	Thus,
neither of the actions complained of 	in the grievance was
grievable under the collective bargaining agreement. 	It
5Nothing 	in this decision should be 	taken as a 	finding or
suggestion that 	I 	find the discrimination allegations to be
well 	founded. 	No evidence was presented on this question. 	Nor
is anything in this decision intended to be a finding about any
conversation Waters may have had with Martinez. 	The case was
dismissed before the University had an opportunity to present
evidence on this point.
55

follows that even 	if Waters' 	allegations about misleading
statements made 	to him by Martinez are true, 	Waters was 	not
denied 	a 	contractual 	right 	when 	the 	University dismissed his
grievance as untimely. 	And, 	if that 	is correct, 	the
University's 	dismissal 	of 	the 	grievance 	denied Waters 	no
66statutory right protected by sections 	3565 	and 	3571.
In 	the hearing on May 18 and 	19, 	Waters testified about his
conversations 	with Martinez 	and 	presented 	certain documents 	as
exhibits. 	University counsel cross-examined Waters, 	and
presented certain additional documents as 	evidence. 	Waters, 	as
charging party, 	then rested his 	case.
Waters 	was 	then advised by 	the 	administrative 	law 	judge 	of
the 	legal analysis 	set out above, 	and of 	the 	likelihood that
his 	complaint 	would be dismissed 	in 	the 	absence of 	further
evidence. 	He was given an opportunity to present 	additional
evidence. 	He declined to do so. 	The 	complaint was 	then
dismissed.
Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 32305, 	the dismissal of the complaint 	shall
become 	final 	unless a party 	files 	a 	timely statement 	of
6It 	is 	possible 	that 	the 	University makes available 	to
employees 	a 	non-contractual 	procedure by which to challenge
acts 	of 	alleged discrimination 	not 	covered by the 	contract.
However, 	Waters chose to use the contractual grievance
procedure, 	and 	inasmuch as that 	grievance procedure did not
apply to the 	two 	issues he raised, 	he was deprived of no
contractual 	or 	statutory right.
6

exceptions with 	the 	Board 	itself at 	the headquarters office 	in
Sacramento within 	20 days 	of 	service 	of 	this 	memorandum.
In accordance with PERB Regulations, 	the 	statement 	of
exceptions 	should 	identify by page 	citation or 	exhibit 	number
the portions of 	the 	record, 	if any, 	relied upon 	for 	such
exceptions. 	See 	California Administrative Code 	title 8,
part III, 	section 32300.
A document 	is 	considered 	"filed" 	when actually received
before 	the close 	of business 	(5:00 p.m.) 	on the 	last day set
for 	filing, 	". 	. 	. o r when sent by telegraph or 	certified or
Express 	United States mail, 	postmarked not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See California Administrative 	Code,
title 8, 	part III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply.
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently 	with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served
on a party or 	filed 	with the 	Board 	itself. 	See California
Administrative Code, 	title 8, part III, 	sections 32300, 	32305,
and 	32140.
Dated: 	May 26, 	1988
M A R T I N 	F A S S L E R
Administrative 	Law Judge
7