State of California (Department of Corrections) (PERB 0561S)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM SCHWARTZMAN, 	M.D.,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SF-CE-68-S
PERB 	Decision No. 	561-S
January 	9, 	1986
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Appearances; 	William Schwartzman, 	M.D., 	on his own behalf.
Before Hesse, 	Chairperson; Jaeger and Porter, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(Board) 	on appeal by William Schwartzman, 	M.D.
(Charging Party) 	of 	the Board agent's proposed decision,
attached hereto, 	which dismissed without 	prejudice 	Charging
Party's 	unfair practice 	charge 	against 	the 	State 	of 	California,
Department of 	Corrections.
We have 	reviewed 	the 	entire 	record 	in 	this 	case 	and 	the
proposed decision and, 	finding 	it 	free 	from prejudicial 	error,
adopt 	it 	as 	the 	Decision of 	the 	Board 	itself.
ORDER
The 	Board agent's 	dismissal 	without 	prejudice 	in Case 	No.
SF-CE-68-S 	is 	hereby AFFIRMED.
Chairperson 	Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM 	SCHWARTZMAN.
Charging 	Party.
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF CORRECTIONS).
Respondent.
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) 	Unfair 	Practice
Case No. 	SF-CE-68-S
PROPOSED
DECISION AND ORDER
DISMISSING COMPLAINT
(5/20/85)
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Appearances: 	William 	Schwartzman, 	charging 	party; 	Edmund 	K.
Brehl, 	attorney 	for 	respondent.
Before: 	Barry Winograd. 	Administrative Law Judge.
PROCEDURAL 	HISTORY AND FACTUAL 	BACKGROUND
Respondent 	has 	moved 	that 	the 	complaint 	be 	dismissed
because 	the 	subject matter 	is 	covered 	by the 	grievance and
binding 	arbitration 	machinery 	of 	an 	applicable 	collective
bargaining 	agreement. 	For 	the 	reasons 	noted 	below,
respondent's motion 	is 	granted.
. 	William Schwartzman filed 	this 	charge 	on February 	15. 	1985
and 	submitted 	an amendment 	on February 28. 	1985. 	The
respondent 	is 	the State of California. 	Department 	of
Corrections. 	Schwartzman has 	alleged 	that 	on or 	about
December 	1. 	1984 	he was 	not 	hired 	for 	a 	psychiatrist 	position
at 	San Quentin Prison, 	and 	that 	this was 	a 	discriminatory
refusal 	in violation of 	section 	3519(a) 	of 	the State
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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_____)

Employer-Employee Relations Act 	(hereafter SEERA or Act).1
The PERB 	issued a 	complaint 	on March 12. 	1985. 	Respondent
filed 	its 	answer 	on April 	3. 	1985. 	admitting certain facts 	but
generally denying 	the 	allegations 	of 	unlawful 	conduct.
Respondent 	also 	advanced 	a 	number 	of 	affirmative 	defenses,
including 	an 	objection 	that 	the 	complaint was 	subject 	to
grievance 	and 	arbitration 	deferral 	and 	should 	be 	dismissed
pursuant 	to 	section 3514.5(a)(2) 	of 	the SEERA.22 In
connection with 	this 	affirmative 	defense, 	respondent 	stated 	its
willingness 	to waive 	timeliness 	and 	procedural 	defenses
regarding 	a 	possible 	grievance, 	and 	contended 	that 	there was 	no
showing 	of 	futility 	to 	excuse 	utilization 	of 	the 	contractual
1The 	Act 	is 	codified 	at 	Government 	Code 	section 	3512,
et 	seq., 	and 	is 	administered 	by the Public Employment Relations
Board 	(hereafter 	PERB 	or Board). 	All 	statutory references 	are
to 	the Government 	Code unless 	otherwise 	indicated. 	Section 	3519
provides 	in relevant 	part 	that 	it 	shall 	be unlawful 	for 	the
state 	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.
2That 	section 	states 	that 	the 	PERB 	shall 	not,
. 	. 	. 	(2) 	issue a complaint against conduct
also 	prohibited 	by 	the 	provisions 	of 	the
agreement 	between 	the 	parties 	until 	the
grievance machinery of 	the agreement, 	if 	it
exists 	and 	covers 	the matter 	at 	issue, 	has
been exhausted, 	either 	by settlement 	or
binding arbitration. 	. 	. 	.
2
l
2

procedure.3w Accompanying 	its 	answer, 	as 	required 	by PERB
regulations, 	respondent 	filed a motion to dismiss urging
deferral.4
The 	deferral 	question was 	argued 	by 	the 	parties 	on
April 	30. 	1985. 	at 	the time of 	the scheduled 	settlement
conference. 	On 	that 	date, 	the 	intended 	ruling 	on respondent's
motion was 	announced, 	thereafter 	to 	be 	formalized 	in this
written decision and 	order. 	(Schwartzman on May 	15. 	1985 	filed
a motion 	for 	reconsideration 	of 	the 	intended 	ruling.)
3Section 3514.5(a) 	provides 	in part 	that,
. 	. 	. 	when the charging party demonstrates
that 	resort 	to 	contract 	grievance 	procedure
would 	be 	futile, 	exhaustion shall 	not 	be
necessary.
4Board 	regulations 	(hereafter 	PERB Rules) 	are 	set 	forth
in the California Administrative Code, 	title 8, 	section 31001,
et seq. 	PERB Rule 	32646(a) 	establishes 	the procedure for
raising 	the 	deferral 	claim:
If 	the 	respondent 	believes 	that 	issuance 	of
the complaint is inappropriate 	. 	. 	. 	because
the dispute 	is 	subject 	to 	final 	and 	binding
arbitration . 	. 	. 	the respondent shall assert
such a 	defense 	in 	its 	answer 	and 	shall move
to dismiss 	the 	complaint, 	specifying fully
the 	legal 	and 	factual 	reasons 	for 	its motion.
Rule 	32644(c)(6) 	also 	provides 	that 	the 	answer must 	include
affirmative defenses 	on respondent's 	behalf. 	The Board's
rulemaking authority 	is 	contained 	in section 3541.3(g),
incorporated 	in the SEERA by section 	3513(g).
A 	second 	motion 	by 	the 	employer 	challenged 	the 	sufficiency
of 	the 	charging 	party's 	claims 	of 	protected 	concerted
activity. 	Given the 	ruling on the deferral 	issue, 	the 	second
motion was 	not 	decided.
w	
3

The 	relevant 	facts 	drawn 	from 	the 	pleadings 	and
declarations 	of 	the 	parties 	may be 	summarized 	briefly.
Schwartzman has 	been a 	psychiatrist 	at Napa 	State Hospital
for many years. 	As 	a medical 	doctor 	he 	is 	included within
Unit 	16 	of 	the 	State 	of California. 	The 	exclusive
representative 	for 	that unit 	is 	the Union of American
Physicians 	and Dentists 	(UAPD). 	Schwartzman's 	charge alleged
that 	between December 	1982 	and 	June 	1984 	several 	grievances
were 	filed, 	mostly 	linked 	to working 	conditions 	that 	he
believed were unsafe 	and 	to 	related 	disciplinary measures.
During 	this 	period, 	he 	also 	pursued 	cases with the 	State
Personnel 	Board 	and 	the 	Division 	of 	Labor 	Standards
Enforcement. 	On 	some 	of 	these 	grievances 	and 	administrative
matters 	he 	handled 	the 	proceedings 	himself, 	while 	on others 	he
was—and 	continues 	to 	be—represented 	by 	his 	union.
According 	to 	the 	charge, 	in November 	1984 	Schwartzman was
interviewed 	for 	a 	psychiatrist 	position at 	San Quentin Prison,
but, 	two weeks 	later, 	was 	informed 	that 	the 	job would 	be
offered 	to 	another 	candidate 	instead. 	Schwartzman 	claims 	that
comments 	made 	during 	the 	interview referring 	to 	his 	disputes 	at
Napa 	State 	formed a 	basis 	for 	the refusal 	to hire, 	as 	reflected
in 	the 	later 	letter 	denying 	him the 	job. 	Schwartzman 	contends
that 	by relying on the Napa 	State 	situation, 	which 	involved
protected 	activity on his 	part, 	San Quentin's decision
4

constituted 	discrimination.sun
Unit 	16 	employees 	are 	covered 	by a 	collective 	bargaining
agreement 	that 	includes 	an 	article 	tracking 	the 	statutory
protection available under 	section 	3519(a) 	of 	the Act:
The 	State 	and UAPD shall 	not 	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
the 	State Employer-Employee 	Relations Act.
Another 	relevant 	contract 	provision 	is 	the 	article
governing health and 	safety, 	which 	includes 	the promise 	that
the 	"State 	shall 	attempt 	to 	provide 	a 	safe 	and 	healthy work
place for State employees 	. 	. 	.," 	and allows for expedited
treatment 	of 	related 	grievances.
The 	contract 	also 	contains 	a 	five-step 	grievance
procedure. 	A grievance may 	be 	initiated 	by an 	individual
employee 	or 	by UAPD. 	An 	employee 	may 	carry 	the 	case 	through
the 	fourth step, 	an appeal 	to 	the Department 	of Personnel
Administration. 	Under 	the 	contract's 	time 	limits, 	this 	should
take no more 	than three 	to 	four months. 	Thereafter, 	only the
union may take a 	case 	to the 	fifth step, 	binding arbitration.
5 In Schwartzman's view, 	the discrimination 	is 	continuing
because 	the 	other 	candidate 	did 	not 	accept 	the 	position and
San Quentin 	reopened 	the 	recruitment 	process 	rather 	than 	offer
the post 	to 	Schwartzman.
s

It 	is undisputed 	that neither 	Schwartzman nor UAPD filed 	a
grievance 	regarding 	the 	San Quentin hiring 	refusal.
Schwartzman 	has 	asserted 	that 	his 	relationship with UAPD 	is
so strained, 	and UAPD so hostile, 	that 	it would 	be 	futile 	to
compel 	utilization 	of 	the 	grievance 	and 	arbitration 	procedures
under 	the 	contract. 	To 	support 	this 	claim, 	on April 	30
Schwartzman 	filed 	an 	extensive 	declaration 	in 	response 	to 	the
employer's 	deferral 	objection. 	In the declaration, 	Schwartzman
recounted 	a 	series 	of 	disputes 	with UAPD representatives
regarding 	case-handling decisions. 	Taken together,
Schwartzman's 	allegations 	amount 	to 	claims 	of 	union misconduct
in 	connection with matters 	that 	largely 	preceded 	the 	filing 	of
this 	charge with the PERB. 	Specifically, 	regarding 	the
San Quentin 	issue, 	Schwartzman also 	stated 	that 	a union 	lawyer,
. 	. 	. 	indicated verbally on several occasions
in and 	around 	early January 1985, 	that 	the
UAPD and 	she 	had 	no 	interest 	in 	full 	[sic]
representing me 	on a 	grievance 	against 	San
Quention, 	and would not arbitrate it. 	if 	it
failed through a Level 	IV review. 	. 	. 	.6
6 In 	another 	paragraph, 	Schwartzman 	claimed 	that 	other
UAPD officials 	who were 	handling 	cases 	related 	to Napa 	State
were aware of 	his 	San Quentin 	job denial, 	but 	they did 	not,
. 	. 	. 	agree to initiate and represent me on
a 	new grievance 	against 	San Quentin.
Despite 	the 	fact 	that 	one 	can 	infer 	a 	request 	for 	UAPD
representation 	on 	a 	San Quentin 	grievance 	from 	the 	above 	quoted
passages, 	other 	exhibits 	suggest 	that 	an express 	request might
not have been made. 	or. 	was 	lost 	in a 	shuffle of profuse
litigation. 	For example, 	no reference 	to a possible
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V
In 	sharp 	contrast 	to 	Schwartzman's 	claims 	about 	UAPD's
failure 	to 	represent 	him. 	the union 	indicated 	by 	letter 	of
April 	25 	and 	by appearance 	on April 	30. 	that 	it was 	prepared 	to
represent 	Schwartzman 	in good 	faith 	if 	an actual 	request was
made 	to 	pursue 	a 	legitimate 	grievance, 	up 	to and 	including
possible 	arbitration.
Schwartzman 	challenged 	the 	union's 	assurance 	and 	requested
an 	evidentiary hearing 	to 	demonstrate 	a 	prior 	refusal 	to
represent 	him, 	and 	the union's 	bad 	faith and 	continuing
hostility. 	The 	request 	for 	a 	hearing was 	denied 	as 	premature,
because, 	as 	a matter 	of 	law for 	the reasons 	enumerated 	below,
there was 	no 	showing 	that 	resort 	to 	the 	contract 	grievance
procedure would 	be 	futile.
San Quentin 	grievance was 	made 	in 	two 	letters written 	by
Schwartzman 	to 	the 	union 	in December 	1984 	and 	January 	1985.
Each dealt 	at 	length with detailed 	aspects 	of 	his 	other 	claims
of 	retaliation 	but 	neither 	San Quentin nor 	a 	union 	failure 	to
represent 	him were mentioned. 	Nor was 	the UAPD's 	alleged
refusal 	to 	represent 	mentioned 	in 	a 	February 	1985 	declaration
to 	PERB 	in 	support 	of 	an 	injunctive 	relief 	request 	in 	this
case. 	Although Schwartzman stated that in his 	"opinion 	. 	. 	.
the 	UAPD would 	not 	expeditiously 	pursue 	the 	remedies 	and
mediation and/or 	arbitration 	procedures," 	he 	commented
elsewhere 	in the 	same 	declaration that, 	even with union
withdrawal 	on 	one 	pending matter.
[R]epresentation 	by 	the UAPD 	labor 	repre-
sentatives 	continues 	on 	the 	grievances
extant 	and 	on all 	other 	future 	employee
matters 	if 	requested 	by me. 	(Emphasis added.)
Under 	these 	circumstances, 	Schwartzman at 	this 	stage may be
estopped 	from 	inconsistently asserting, 	as 	he 	did 	in his 	later
April 	30 declaration, 	that 	the union was unwilling to take his
case.
7

CONCLUSIONS 	OF 	LAW
While 	one 	can view with 	sympathy 	the 	tribulations 	allegedly
encountered 	by 	Schwartzman 	in his 	disputes with Napa 	State and
others, 	dismissal 	of 	the complaint 	is 	compelled by the Board's
recent 	decision 	in 	State 	of 	California 	(Department 	of
Developmental Services) 	(1985) 	PERB Order No. 	Ad-145-S. 	In
that 	case, 	the 	PERB dismissed 	a 	complaint 	regarding a
discharge, 	and 	required 	deferral 	to 	grievance 	and 	arbitration
machinery, 	despite 	ample evidence 	of 	intra-union political
conflict 	that 	raised 	doubts 	about 	a 	union's 	readiness 	to
provide 	fair 	representation to a 	dissident 	employee. 	(Id., 	at
p. 	14.) 	However, 	the Board 	concluded 	that 	there was 	no
evidence 	that 	the union had 	committed 	itself 	to a 	position 	in
conflict with the 	employee, 	or 	that 	it 	acted 	to 	further 	the
employer's 	aims, 	or 	even condoned 	the 	termination. 	The Board
also 	concluded 	that 	there was 	no 	claim by 	the 	employee 	of 	a
request 	for 	union assistance 	and 	a 	union 	refusal 	that 	rendered
arbitration 	unavailable.
In this 	proceeding 	there 	certainly 	is 	evidence 	in
Schwartzman's 	pleadings 	and 	his April 	30 	declaration 	of
disagreement 	and 	tension between Schwartzman 	and 	the 	UAPD. 	At
the 	time the deferral motion was 	argued, 	Schwartzman also
stated 	that 	he 	did 	not wish 	the union 	to 	represent 	him any
longer, 	and 	opposed 	a 	ruling 	that would 	force 	that upon him.
But Developmental 	Services 	requires 	more 	than disagreement 	or
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personal 	preference 	to 	bypass 	the 	statutory 	deferral
requirement. 	Thus, 	there 	is no evidence that UAPD is 	committed
to a 	position antagonistic 	to Schwartzman's. perhaps 	by
supporting another 	candidate, 	nor 	that UAPD approves 	or
condones 	a 	reprisal 	by denial 	of 	a 	job at 	San Quentin.
Further. 	Schwartzman's 	statement 	that 	representation was
previously 	requested 	and 	denied 	is 	doubtful 	on 	this 	record,
which shows 	no unequivocal 	express 	request 	during 	the 	relevant
time period, 	union 	involvement 	that 	continues 	on 	other 	cases,
and 	UAPD's 	stated 	readiness 	to 	pursue 	a 	legitimate 	grievance.
More 	significantly, 	and 	determinative 	as 	a 	legal 	matter.
Schwartzman 	has 	failed 	to 	offer 	any 	satisfactory 	explanation 	of
why he 	did not 	commence 	the 	grievance 	procedure himself, 	which
would have allowed, 	if 	the 	case went 	that 	far. 	a 	demand 	that
arbitration 	be undertaken 	by UAPD and 	an 	analysis 	of 	the
evidence at 	that 	stage. 	If 	a 	refusal 	to 	arbitrate 	then
occurred, 	according to Developmental 	Services, 	his 	charge would
be ripe for 	refiling with the PERB. 	(Id.. 	at p. 	14.)
This 	approach 	is 	consistent with 	the 	public 	interest 	as
well 	as 	that 	of management 	and 	labor 	in 	securing 	the 	benefit 	of
their 	bargain. 	Management 	and 	the union negotiated 	a 	grievance
and 	arbitration 	procedure 	that 	incorporated 	by 	reference
discrimination 	claims 	arising under 	the 	SEERA. 	By 	so 	doing,
collateral 	and 	possibly 	cumulative 	proceedings 	before 	the 	PERB
are 	avoided, 	taxpayer 	and 	participant 	resources 	are 	preserved.
9

and 	prompt, 	final 	dispositions 	are 	promoted. 	The 	chance 	for
uniform contract 	interpretation also 	is 	enhanced, 	not 	only
because 	the 	arbitration procedure 	applies, 	but 	also 	because
labor 	and 	management 	can monitor 	contract 	performance 	through
other 	levels 	of 	the 	grievance 	procedure, 	ensuring appropriate
responses 	by 	lower 	level 	officials.
These 	substantial 	benefits, 	which unions 	and 	employers
share, 	and which extend 	to 	employees 	as well, 	would 	be
effectively 	eliminated 	if 	an 	individual worker 	could 	opt 	out 	of
the 	contractual 	mechanism without 	any 	evidence 	it 	has 	been
invoked 	at 	all 	and with a 	questionable 	claim of 	futility.
Ultimately, 	too, 	the public 	interest 	in stable, 	consistent
labor 	relations would 	suffer 	if 	the 	interests 	of 	exclusive
representatives 	and 	the 	employer 	could 	be 	cast 	aside 	as 	a
matter 	of 	personal 	preference 	and 	PERB 	jurisdiction 	chosen
instead. 	Clearly, 	the 	statutory deferral 	requirement 	is
intended 	to 	prevent 	the 	kind 	of 	contract 	nullification and
selective 	forum-shopping 	sought 	by 	Schwartzman.
In the 	long run, 	a dismissal 	at this 	stage also will 	be to
Schwartzman's 	advantage. 	If 	a 	complaint went 	forward 	on the
present 	record, 	without 	giving 	the 	grievance 	procedure 	the
minimal 	statutory 	protection 	required, 	a 	jurisdictional 	cloud
would 	hang above 	his 	case, 	impairing 	the 	prospects 	for 	relief
and PERB's 	ability to 	render 	and 	enforce a 	decision. 	If UAPD
actually fails 	to 	satisfy 	its 	representation duty, 	that will 	be
10

known 	soon 	enough and 	the 	door 	to 	PERB will 	be 	open 	once
again. 7
PROPOSED 	ORDER
For 	the 	reasons 	expressed 	above, 	the 	complaint 	in 	this
proceeding 	is 	dismissed without 	prejudice. C
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 	32305, 	this 	Proposed Decision and Order 	shall
become final 	on June 	10. 	1985, 	unless 	a party files a 	timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied upon 	for 	such
exceptions. 	See California Administrative Code 	title 	8.
part 	III. 	section 32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
7The 	charging 	party's 	case 	remains 	viable 	in 	the 	future
because 	the 	statute 	of 	limitations 	under 	the 	SEERA
(sec. 	3514.5(a)) 	is 	tolled while the grievance procedure 	is
utilized. 	(See, 	e.g.. 	Los Angeles Unified School District
(1983) 	PERB Decision No. 	311; 	Department of Water Resources
(1981) 	PERB Order No. 	Ad-122-S.)
8PERB Rule 	32646(a) 	states 	that 	an appeal 	from the
dismissal 	of 	a 	complaint 	following a 	deferral 	motion shall 	be
subject 	to PERB Rule 	32200. 	The 	requirements 	of 	PERB Rule
32200 	governing 	certification 	of 	such appeals 	are met 	because
the 	issue 	is 	one 	of 	law and 	is 	controlling, 	and disposition
will 	materially advance 	resolution 	of 	the 	case. 	The 	ruling 	on
this motion 	is 	not 	simply an administrative decision, 	however,
because 	it 	does 	not 	meet 	the 	narrow definition of 	PERB
Rule 	32350. 	Hence, 	in order 	to ensure due process 	to the
charging 	party, 	the 	procedure 	and 	longer 	timeline 	for 	filing
exceptions 	to 	a 	hearing 	officer 	decision dismissing 	a 	complaint
shall 	be utilized. 	(See PERB Rules 	32214. 	32300.)
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Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 p.m.) 	on
June 	10. 	1985. 	or 	sent 	by telegraph or 	certified United 	States
mail, 	postmarked not 	later 	than the 	last 	day for 	filing 	in
order 	to 	be 	timely filed. 	See California Administrative Code,
title 	8. 	part 	III. 	section 32135. 	Any statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently with 	its
filing upon 	each party 	to 	this 	proceeding. 	Proof 	of 	service
shall 	be 	filed with the Board 	itself. 	See California
Administrative Code, 	title 8. 	part 	III, 	sections 32300 and
32305.
Dated: 	May 20. 	1985
BARRY WINOGRAD
Administrative 	Law Judge
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