Regents of the University of California (Higgins) (PERB 1159H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARY G. HIGGINS, et al.,
Charging Parties, Case No. SF-CE-430-H
v. PERB Decision No. 1159-H

REGENTS OF THE UNIVERSITY OF June 18, 1996

CALIFORNIA,

Respondent.

Set ee et ee eet ee et et ee ee et

Appearances: Mary G. Higgins on behalf of Mary G. Higgins and
Connie Foerster-Bourges; Leslie L. Van Houten, Attorney, for
Regents of the University of California.
Before Garcia, Johnson and Dyer, Members.

DECISION AND ORDER

JOHNSON, Member: This case is before the Public Employment

Relations Board (Board) on appeal of a Board agent's partial
dismissal (attached) of an unfair practice charge filed by
‘Mary G. Higgins (Higgins) and Connie Foerster-Bourges
(collectively Charging Parties). The charge alleged that the
Regents of the University of California (University) violated

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

Relations Act (HEERA)* when it discriminated against Higgins by

'NRERA is codified at Government Code section 3560 et seq.
Section 3571 provides, in pertinent part:

It shall be unlawful for the higher education
employer to do any of the following:

(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights

investigating 	a 	complaint 	filed against 	her and 	interfered with
Charging 	Parties' 	rights by threatening 	future 	investigations.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the warning and dismissal
letters, 	Charging Parties' 	appeal and the University's 	response
thereto. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	of 	prejudicial 	error and adopts 	them as 	the decision of 	the
Board 	itself.2
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SF-CE-430-H is hereby AFFIRMED.
Member Dyer 	joined 	in this 	Decision.
Member Garcia's 	concurrence begins 	on page 	3.
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2Under PERB Regulation 32620(b)(6), 	the Board will defer
to 	the 	contractual 	grievance 	and arbitration procedure 	only 	if
arbitration 	is 	final 	and binding. 	(PERB 	regulations 	are 	codified
at Cal. 	Code of Regs., 	tit. 	8, 	sec. 	31001 et seq.; 	Regents of
the University of California 	(Higgins) 	(1994) 	PERB Decision
No. 	1058-H.) 	Deferral 	is 	inappropriate 	in this 	case because
Article 4, 	section E.2. 	of 	the applicable collective bargaining
agreement 	expressly 	excludes 	the 	subject 	of 	this 	unfair practice
charge 	from 	final 	and binding 	arbitration.
22

GARCIA, 	Member, 	concurring: 	I 	concur with the majority's
opinion 	to affirm the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	agent's dismissal, 	but my reasons are different.
California 	law and policy 	considerations 	preclude 	the 	Board 	from
taking 	jurisdiction of 	this 	case.
This 	charge alleges both a violation of 	the Higher Education
Employer-Employee Relations Act 	(HEERA) 	and a violation of 	the
parties' 	contract. 	Mary Higgins 	(Higgins) 	did not 	file a
grievance; 	instead she 	filed an unfair practice 	charge. 	Although
HEERA section 3563.2 	does 	not 	require 	exhaustion of 	the
contractual 	grievance 	procedure before 	PERB 	jurisdiction 	can
attach, 	other legal principles preclude 	jurisdiction. 	California
courts will 	refuse 	to 	consider disputes between parties 	to a
collective bargaining agreement 	until 	the parties 	to 	the 	dispute
have 	exhausted 	internal 	remedies under the 	terms 	of 	their
grievance agreement. 	The Court of Appeal has held that:
It 	is 	the general 	rule that a party to a
collective 	bargaining 	contract 	which provides
grievance 	and 	arbitration machinery 	for 	the
settlement 	of 	disputes within the 	scope of
such 	contract must 	exhaust 	these 	internal
remedies before 	resorting 	to 	the 	courts 	in
the absence of 	facts which would excuse him
from pursuing 	such remedies. 	[Citations.]
. 	. 	. 	Such procedures, 	which have been worked
out 	and adopted by 	the parties 	themselves,
must 	be 	pursued 	to 	their 	conclusion before
judicial 	action may be 	instituted unless
circumstances 	exist which would excuse 	the
failure 	to 	follow through with 	the 	contract
remedies. 	[Citations.]
(Cone v. 	Union Oil Co. 	(1954) 	129 Cal.App.2d
558, 	563-564 	[277 P.2d 464].)
33

The 	exhaustion doctrine 	is 	explained 	in Abelleira v. 	District
Court of Appeal 	(1941) 	17 Cal.2d 280 	[109 	P.2d 942] 	as 	follows:
. 	. 	. 	the rule 	[of exhaustion of
administrative 	remedies] 	is 	that where an
administrative 	remedy 	is 	provided by 	statute,
relief must 	be 	sought 	from the 	administrative
body and 	this 	remedy 	exhausted before 	the
courts will act. 	(Id. 	at 292.)
-
Likewise, 	in George Arakelian Farms, 	Inc. 	v. Agricultural Labor
Relations Bd. 	(1985) 	40 Cal.3d 654 	[221 Cal.Rptr. 	488] 	the
California 	Supreme 	Court 	refused 	to 	consider 	the 	appeal 	of 	a
plaintiff 	who had 	failed 	to 	complete 	the Agricultural 	Labor
Relations Board appeal process, 	stating that his 	failure 	to
exhaust 	his 	administrative 	remedy precluded jurisdiction. 	(Id.
at 	663.)
In County of 	Contra Costa v. 	State 	of 	California 	(1986) 	177
Cal.App.3d 62 	[222 Cal.Rptr. 	750], 	the court emphasized that the
exhaustion of 	remedies doctrine 	operates 	as 	a 	limit 	on
jurisdiction unless 	the party 	can 	establish an 	exception 	to 	the
rule, 	such as 	futility or inadequate remedy. 	(Id. 	at 	77-78.) 	If
no exception applies, 	the 	court held that 	"judicial 	action
without 	exhausting 	[administrative] 	remedies must be 	considered
premature." 	(Id. 	at 76-77.)
Turning to the 	facts of 	this 	case, 	Higgins 	is a union
steward who knows 	the 	grievance procedure 	and appears 	to believe
that 	a possible 	contractual violation occurred, 	since 	she
indicated 	on her unfair practice 	charge 	form that 	a 	grievance
would be 	filed. 	Both under HEERA section 	3567 	and pursuant 	to
the parties' 	contract, 	Higgins has the right to file a grievance
4

in her own name, 	and there are no facts 	to 	indicate 	that 	resort
to 	the grievance procedure would have been 	futile 	or 	that 	it
could not 	have provided an adequate 	remedy. 	In response 	to
footnote 	2 	in the majority opinion, 	I point 	out 	that 	PERB has no
legislative 	authority 	to 	exercise 	its 	jurisdiction 	to 	issue 	a
complaint until 	or unless 	the 	grievance process 	is 	exhausted or
futility 	is 	demonstrated. 	(Eureka City School 	District 	(1988)
PERB Decision No. 	702, 	at p. 	7, 	citing Lake Elsinore School
District 	(1987) 	PERB Decision No. 	646.)
When 	the 	Legislature 	enacted public 	employee 	collective
bargaining statutes, 	it was 	careful 	to refrain from imposing
arbitration on the parties. 	Nowhere 	in HEERA is arbitration
mentioned as 	a pre-condition to deferral. 	PERB has 	no authority
to 	create 	a 	deferral 	doctrine 	conditioned on arbitration 	through
a 	regulation 	that 	promotes 	a policy 	the 	Legislature 	avoided and
which 	is 	contrary to California 	law.
As 	a 	quasi-judicial 	appellate 	board 	operating under
California law, 	it would be error for us 	to take 	jurisdiction of
this 	charge. 	Furthermore, 	it would not be good policy because 	it
promotes 	imposed decisions 	over 	negotiated 	settlements 	and
encourages 	parties 	to 	collective bargaining 	agreements 	to 	ignore
the 	contractual 	remedy they agreed 	to.
5

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
February 9, 	1996
Mary G. 	Higgins
Re: 	Unfair Practice Charge No. 	SF-CE-430-H, Mary Higgins. et al.
v. 	Regents of the University of California
NOTICE OF 	PARTIAL DISMISSAL
Dear Ms. Higgins:
The above-referenced charge alleges, 	in part, 	the University of
California at San Francisco 	(University) 	is conducting an
investigation into the activities 	of union steward Mary Higgins
in retaliation for her participation in a grievance proceeding.
The charge alleges this conduct violates Higher Education
Employer-Employee Relations Act 	(HEERA or Act) 	sections 3567 and
3571(a) and (b).
I indicated to you, 	in my attached letter dated January 2, 	1996,
that certain allegations 	contained in the 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 these
allegations 	to state a prima facie case or withdrew them prior to
January 12, 	1996, 	the allegations would be dismissed. 	I later
extended this deadline to January 20, 	1996.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing those allegations which
fail 	to state a prima facie case based on the facts and reasons
contained in my January 2, 	1996 	letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may--·obtain a review of this dismissal 	of 	certain allegations
contained in 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:

SF-CE-430-H
February 9, 	1996
Page 2
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of 	the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become 	final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
Tammy 	L.Samsel
Regional Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 2, 199 6
Mary G. 	Higgins
Re: 	Unfair Practice Charge No. 	SF-CE-430-H, Mary Higgins. 	et al.
v. 	Regents of the University of California
PARTIAL WARNING LETTER
Dear Ms. Higgins:
The above-referenced charge alleges, 	in part, 	the University of
California at San Francisco 	(University) 	is 	conducting an
investigation into the activities 	of union steward Mary Higgins
in retaliation for her participation in a grievance proceeding.
The charge alleges this conduct violates Higher Education
Employer-Employee Relations Act 	(HEERA or Act) 	sections 3567 and
3571(a) 	and 	(b). 	My investigation revealed the following
information.
Connie Foerster filed a grievance against her immediate
supervisor, Gary Beyrouti. 	On April 11, 	1995, Mary Higgins
attended a step II grievance meeting as Foerster's union steward.
Prior to that meeting Foerster told Higgins other female
employees had experienced problems with Beyrouti. 	During the
presentation of the union's contentions at the step II meeting,
Higgins referred to a possible history of misconduct by Beyrouti.
In response to Higgins' 	contention, 	Beyrouti filed a sex
discrimination complaint against Higgins. 	The University's
Department 	of Affirmative Action/Equal 	Employment Opportunity
(Department) 	initiated an investigation into the matter pursuant
to federal law.
The charge requests PERB stop the Department's investigation.
However, 	the Director of the Department issued a letter on
October 30, 	1995, 	which concluded the investigation and found
Higgins did not discriminate against Beyrouti on the basis of
sex.

SF-CE-430-H
January 2, 	1996
Page 2
To demonstrate a violation of HEERA section 3571(a), 	the charging
party must show: 	(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. 	(California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Although the timing of the employer's adverse action 	in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, 	without more, 	demonstrate the
necessary connection or 	"nexus" 	between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and 	standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's 	cursory investigation of 	the employee's misconduct;
(5) 	the employer's 	failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District,
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 264.)
The charge appears to allege two distinct adverse actions: 	(1)
the filing of the complaint by Beyrouti, 	and 	(2) 	the Department's
subsequent 	investigation of that 	complaint. 	This letter
addresses only the Department's act 	of 	investigating the
complaint.
The allegations against 	the University for the Department's
conduct fails 	to present a prima facie violation. 	Higgins 	is not
protected 	from an 	investigation by the Department merely because
she is acting as a union steward. 	(See Kaady v. 	Los Angeles
Unified School District 	(1992) 	PERB Decision No. 	957.) 	The
Department may investigate Higgins' 	conduct pursuant to its rules
as 	it would investigate the conduct of any other employee alleged
to have engaged in misconduct. 	To establish a prima facie
discrimination violation, 	the charge must present facts
demonstrating the University initiated the investigation, 	or
conducted it 	in a discriminatory manner, 	because Higgins
exercised protected rights. 	(See Novato Unified School District
(1982) 	PERB Decision No. 	210; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)

SF-CE-430-H
January 2, 	1996
Page 3
The charge does not 	establish the Department 	investigated Higgins
because of her union activities. 	First, 	the charge does not
present any facts 	indicating the Department's 	investigation would
not have occurred if Higgins had not been speaking in her
capacity as a union steward. 	The charge also fails 	to present
any 	facts 	suggesting 	the University departed from the 	rules
established for the 	investigation of 	complaints alleging
discrimination based on sex. 	For example, 	the charge does not
present 	facts 	demonstrating the Department 	exercised discretion
in singling Higgins 	out 	for investigation while allowing
complaints against 	other employees 	to go on without
investigation. 	Nor does 	the charge present facts establishing
the 	investigation was unjustified under the 	federal 	regulations
implementing Title IX of the Education Amendments of 1972. 	For
these reasons, 	this allegation fails to demonstrate the required
nexus between Higgins' 	speech and the Department's 	investigation.
Accordingly, 	the allegation that 	the University violated the Act
by its 	investigation is dismissed.
The 	charge also alleges 	the University is 	involved in an
"elaborate attempt to deny 	[Foerster] 	the use of negative
evidence in her future arbitrations." 	My understanding of the
charging party's 	theory is 	that although the University's
investigation resulted in a finding of 	"no cause," 	Higgins may be
subject 	to further complaints and investigations 	if 	she repeats
her statement about Beyrouti 	in future grievance arenas. 	Higgins
contends the parties' 	contract required her to mention Beyrouti's
possible past 	conduct during the 	formal meeting to reserve 	the
right to use that information during arbitration. 	Higgins also
alleges the possibility of 	future investigations 	is 	interfering
with her right to represent, 	and Foerster's right to be
represented.
A prima facie 	case of an interference violation requires 	the
charging party to demonstrate 	the employer's conduct 	tends 	to or
does result in some harm to employee's rights, 	but does not
require the charging party to prove unlawful 	intent. 	(See
Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89;
Novato Unified School District 	(1982) 	PERB Decision No. 	210;
Regents of the University of California 	(1983) 	PERB Decision No.
308-H.) 	The charge presents no facts demonstrating the
University's 	conduct 	tends to or does 	result 	in some harm to
Higgins' 	or Foerster's rights. 	Higgins' 	allegation that she may
be subject to investigation at a future time is not sufficient.
The 	charge does not 	contain any facts 	establishing the University
is 	involved in any effort to deny Foerster the use of any
evidence in the grievance process.

SF-CE-430-H
January 2, 	1996
Page 4
For these reasons 	the allegation that 	the University
discriminated against you by its 	investigation of Beyrouti's
complaint, 	as presently written, 	does not state a prima facie
case. 	If there are any factual 	inaccuracies in this letter or
additional 	facts which would correct 	the deficiencies 	explained
above, 	please amend the charge. 	The amended charge should be
prepared on a standard PERB unfair practice charge form, 	clearly
labeled First Amended Charge, 	contain all 	the facts and
allegations you wish to make, 	and be signed under penalty of
perjury by the charging party. 	The amended charge must be served
on the respondent and the original proof of service must be filed
with PERB. 	If I do not receive an amended charge or withdrawal
from you before January 12, 	1996, 	I shall dismiss the above-
described allegation from your charge. 	If you have any
questions, please call me at 	(213) 	736-7508.
Sincerely,.
Tammy L. 	Samsel
Regional Attorney