American Federation of State, County and Municipal Employees (Waters) (PERB 0697H)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

B. BENEDICT WATERS,

Charging Party, Case No. LA-CO-13-H

Vv. PERB Decision No. 697-H

AMERICAN FEDERATION OF STATE,

September 26, 19838
COUNTY AND MUNICIPAL EMPLOYEES,

Respondent.

Appearance; B. Benedict Waters, on his own behalf.

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 a Board agent's
dismissal, attached hereto, of his charge that the American
Federation of State, County and Municipal Employees violated
sections 3571.1(a) and (b) of the Higher Education
Employer-Employee Relations Act (codified at Gov. Code sec.
3560 et seq.). We have reviewed the dismissal and, finding it
free from prejudicial error, we adopt it as the Decision of the
Board itself.

The unfair practice charge in Case No. LA-CO~13-H is hereby

DISMISSED WITHOUT LEAVE TO AMEND.

By the Board

-
P

STATE OF CALIFORNIA GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
April 20, 1988
B. Benedict Waters
P.O. Box 191018
Los Angeles, California 90019
Re: LA-CO-13-H, B. Benedict Waters v. American Federation of
State, County and Municipal Employees
PARTIAL DISMISSAL OF UNFAIR PRACTICE CHARGE
Dear Mr. Waters:
The above-referenced unfair practice charge, filed on September
22, 1987 and amended on April 4, 1988, alleges that the
American Federation of State, County and Municipal Employees
(AFSCME) concealed knowledge of benefits under the Memorandum
of Understanding (MOU) negotiated with the employer, the
Regents of the University of California (University) , by
failing to distribute copies of the MOU to employees in the
bargaining unit, including Charging Party. This conduct is
alleged to violate Government Code sections 3571. 1(a) and (b)
of the Higher Education Employer-Employee Relations Act (HEERA) .
I indicated to you in my attached letter dated March 29, 1988
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 accordingly. You were further advised that unless you
amended these allegations to state a prima facie case, or
withdrew them prior to April 5, 1988, they would be dismissed.
I received an amended charge on April 4, 1988. The amended
charge contained several legal arguments as to why a complaint
should issue. 	These arguments were considered but are found to
be without merit. The reasoning stated in my March 29, 1988
letter is restated and incorporated herein by reference.
The only new facts alleged were that another bargaining unit
member , Nancy A. Ridley, requested but was denied a copy of the
MOU. 	This is insufficient to establish a prima facie violation
as to other bargaining unit members. As noted in my letter of
March 29, 1988, even if it were alleged that other members of
the bargaining unit were denied copies upon their request, no
prima facie violation would be alleged without other facts
indicating such employees were also denied the opportunity to
view copies in AFSCME's possession in order that they might
ascertain their rights under the MOU.

LA-CO-13-H
April 20, 1988
Page 2
Also, the amended charge alleges that AFSCME's lack of interest
induced the University not to provide AFSCME with information
necessary for it to ensure the distribution of the contract.
The reasoning is circular. It is not probative of any causal
connection with any conduct of the University that was
detrimental to the rights of employees in the bargaining unit.
I am therefore dismissing those allegations which fail to state
prima facie case based on the facts and reasons contained in
my March 19, 1988 and this letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, you
may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty (20) calendar days
after service of this dismissal (California Administrative
Code, title 8, section 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
(5:00 p.m. ) , or sent by telegraph, certified or Express United
States mail postmarked no later than the last date set for
filing. Code of Civil Procedure section 1013 shall apply.
(See section 32135. ) The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a
complaint, any other party may file with the Board an original
and five copies of a statement in opposition within twenty
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" u 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

LA-CO-13-H
April 20, 1988
Page 3
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 GINGOA
Regional Attorney
Attachment

-

. ATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles. CA 90010-2334
(213) 736-3127
March 29, 1988
B. Benedict Waters
P.O. Box 191018
Los Angeles, California 90019
Re: LA-CO-13-H, B. Benedict Waters v. Regents of the University
of California
Dear Mr. Waters:
The above-referenced unfair practice charge, filed on September
22, 1987, alleges that the American Federation of State, County.
and Municipal Employees (AFSCME) concealed knowledge of
benefits under the Memorandum of Understanding (MOU) negotiated
with the employer, the Regents of the University of California
(University), by failing to distribute copies of the MOU to
employees in the bargaining unit, including Charging Party.
This conduct is alleged to violate Government Code sections
3571 (a) and (b) of the Higher Education Employer-Employee
Relations Act (HEERA ) .
Charging PartyMy investigation revealed the following facts.
became employed at the University of California at Los Angeles
(UCLA ) on May 20, 1986 in a casual position. As a casual
employee, Charging Party was covered by the MOU negotiated
between AFSCME and the University, covering Unit 12 (Clerical
and Allied Services).
Article 2, section N. 1. of the NOU, effective 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
its 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

LA-CO-13-H
March 29, 1988
Page 2
the Union. 	Additionally, the Union shall be
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 to each employee
covered by the 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) . Charging Party alleges that an agent of the
University, Frank Martinez, Personnel Representative for UCLA's
Facilities Division, Personnel and Payroll Department, 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 MOU 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. Charging Party states that not having a copy of the
MOU prevented him from knowing about the timeliness
requirements of the agreement.
Charging Party alleges that in early February 1987 he contacted
Cliff Fried, a grievance representative for AFSCME, to discuss
the filing of his grievance. . He also states that he informed

LA-CO-13-H
March 29, 1988
Page 3
Fried of Martinez's statements and that Fried failed to inform
him of the 30-day time limit. As noted in the charge, he
further asserts that the MOU requires that all employees be
given a copy of the contract and argues that AFSCME does not
obey or enforce this provision. When he raised this with
Fried, Fried told him that copies were available at the AFSCME
office on Wilshire, and that Fried could easily obtain a copy
for him. Fried made repeated promises to provide him with a
copy but never did provide him with one. Charging Party relied
on these promises at least through March 2, 1987, or thirty
days following the violation underlying the grievance.
Charging Party also alleges that he is informed and believes
that it is the custom and practice of AFSCME not to retain
copies of the MOU at the Wilshire office in spite of Fried's
claim to that effect.
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
AFSCME, acting in concert or collusion with the University, has
deprived members of the bargaining unit of the information
contained in the MOU by failing to ensure the distribution of
copies by the University. As a result he claims he was
personally injured when the University rejected his grievance
as being untimely on May 6, 1987 and also claims that other
employees are deprived of the information as well.
Charging Party submitted copies of an October 28, 1987 Public
Records Act request to the University 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

LA-CO-13-H
March 29, 1988
Page 4
to casual . employees or recent hires for several years, although
the University has the capability to distribute copies.
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.
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. and, in turn, that AFSCME has failed to enforce
these' provisions of the contract.
The University provided correspondence from Gregory L. Kramp,
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 copies.
Based on the facts as stated above, the allegations that AFSCME
violated the HEERA by (1) failing to ensure that copies of the
MOU were distributed to all employees in the bargaining unit
and concealed knowledge of contractual benefits from all
employees in the unit, and (2) causing or attempting to cause
the University to violate Government Code section 3571 fail to
state a prima facie violation of the HEERA for the reasons
which follow.
Violation As to Other Bargaining Unit Members
Charging Party contends that by its "willful failure to ensure
each employee is provided a copy of the Agreement, " AFSCME has
breached its duty of fair representation and that as a
proximate result of AFSCME's failure to enforce Article 2,
sections N. 1. and N. 2. of the MOU, employees in the unit are
deprived of knowledge of their benefits under the MOU.
In order to state a prima facie violation on the theory of a
breach of the duty of fair representation, Charging Party must
allege facts demonstrating that the union engaged in conduct

LA-CO-13-H
March 29, 1988
Page 5
toward its members that is abritrary, discriminatory or in bad
faith. - Rocklin Teachers Professional Association (Romero)
(1978) PERB Decision No. 124.
Standing alone, the fact that AFSCME failed to invoke the
provisions of Article 2 to ensure that all employees received a
copy of the MOU, fails to demonstrate arbitrary, discriminatory
or bad faith conduct. The fact that the parties in this case
have chosen to include in the MOU a provision enabling
individual employees to receive copies of the NOU does not mean
that providing such copies is required as a matter of statutory
right. There is no authority under PERB construing the HEERA
to require this. If the parties have negotiated the matter,
there is nothing to prevent them from modifying the contract or
waiving a provision under the contract. The fact that AFSCME
may not have had the funds necessary for the printing of copies
for its members or chose to spend its financial resources on
other matters does not establish arbitrary, discriminatory or
bad faith conduct. Moreover, FERB "shall not have the
authority to enforce 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." 	Government Code section
3563. 2(b) .
Charging Party alleges that AFSCME concealed knowledge of
benefits under the MOU from all employees in the unit. This
claim is supported by allegations that AFSCME failed to
participate with the University in the distribution of copies
of the MOU and that it is the custom and practice of AFSCME not
to maintain copies of the MOU at the Wilshire office. Charging
Party has also alleged facts indicating that new employees are
not provided with copies upon their hire. However, no facts
are alleged to demonstrate that other bargaining unit members
requested but were denied copies of the MOU, or that even if
copies are not available to individual employees upon their
request, that such employees cannot make arrangements to view a
copy in AFSCME's possession. Without such allegations, the
charge fails to demonstrate any harm to the rights of these
other employees (Carlsbad Unified School District (1978) PERB
Decision No. 89) or that AFSCME has acted in an arbitrary,
discriminatory or bad faith manner. As noted above, an
employee organization does not violate the HEERA merely by
failing to distribute the copies allegedly in violation of an
express term of the MOU.

LA-CO-13-H
March 29, 1988
Page 6
Violation of Government Code Section 3571. 1(0)
Government Code section 3571. 1(a) provides as follows:
It shall be unlawful for an employee
organization to: (a) Cause or attempt to
cause the higher education employer to
violate Section 3571.
In order to state a violation of Government Code section
3571. 1(a), it must be clear how and in what manner AFSCME
caused or attempted to cause the employer to violate the
HEERA. 	Tustin Unified School District (1987) PERB Decision No.
626. 	Charging Party has not alleged how any action on AFSCME's
part caused the University to violate section 3571. The theory
appears to be that AFSCME caused a violation by causing the
University to violate Article 2, sections N.l. and N. 2.
However, as noted above, merely alleging that a party to the
MOU has breached a provision of the MOU does not establish
interference with employee rights. Therefore, if AFSCME only
caused the University to violate the NOU, that fact is not
sufficient to state a violation of section 3571.1(.).
For these reasons, the allegations that AFSCME violated the
HEERA by (1) failing to ensure that copies of the MOU were
distributed to all employees in the bargaining unit and
concealed knowledge of contractual benefits from all employees
in the unit, and (2) violating Government Code section
3571. 1(a) , as presently written, do 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 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
April 5, 1988, I shall dismiss the above-described allegation
from your charge. If you have any questions on how to proceed,
please call me at (213) 736-3127.
Sincerely,
DONN GINOZA
Regional Attorney