California State University (Pomona) (Hollis) (PERB 0710H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
W. 	SLATER HOLLIS,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY
(POMONA),
Respondent.
Case No. 	LA-CE-222-H
PERB Decision No. 	710-H
December 21, 	1938
Appearances: 	Dr. 	W. 	Slater Hollis, 	on his own behalf; 	William G.
Knight, 	Attorney, 	for California State University.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment Relations 	Board
(Board) 	on appeal 	by Charging Party of 	the 	Board agent's
dismissal, 	attached hereto, 	of his charge that the Respondent
violated section 3571, 	subdivisions 	(a), 	(c) 	and 	(d) 	of the
Higher Education Employer-Employee 	Relations Act. 	We have
reviewed the dismissal 	and, 	finding it to be 	free of prejudicial
error, 	adopt it as 	the Decision of the Board itself.
The unfair practice 	charge 	in Case No. 	LA-CE-222-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By the 	BOARD1
1 Member Camilli 	did not participate 	in this 	Decision.
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
September 30, 	1988
Dr. W. Slater Hollis, Ph.D., J.D.
Re: 	W. 	Slater Hollis v. 	California State University
System. 	Case No. 	LA-CE-222-H - Amended Charge
DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
Dear Dr. Hollis:
Your amended charge was filed on June 28, 	1988. 	It alleges
violations 	of 	the Higher Education Employer-Employee Relations
Act (HEERA) sections 3571(a), (c) and (d).
Essentially, 	you have alleged that 	the employer had entered
into 	an 	illegal 	agreement with the exclusive 	representative.
You 	allege 	that 	the employer 	interfered 	with 	and met 	and
conferred 	in bad 	faith with the exclusive 	representative. 	You
base 	this 	allegation on your dissatisfaction with certain
provisions of the agreement.
You alleged in a companion charge 	(LA-CO-15-H) 	against the
exclusive 	representative that 	it 	had breached 	its duty of 	fair
representation because 	it 	created 	a 	two-tier Faculty Early
Retirement Program (FERP). 	The organization, 	faced with a
proposal 	to completely eliminate the program, 	negotiated a
two-level FERP, 	i.e., 	FERP would be available to all faculty
members 	except 	those in hard to 	recruit/replace disciplines.
You were 	in a designated hard to 	recruit/replace discipline,
business. 	A warning 	letter was 	issued on this charge.

You believe that 	the employer entered 	into 	a collusive contract
to your detriment. 	You believe that 	the employee organization
committed an unfair practice 	in doing 	so 	and you believe 	that
the employer 	likewise committed 	an unfair practice.
I 	indicated to you 	in my attached 	letters dated August
30, 	1988 that the above-referenced charge did not state a prima
facie case. 	You were advised that 	if 	there were any factual
inaccuracies or 	additional 	facts 	that would correct 	the
deficiencies explained 	in that 	letter, 	you should amend the
charge 	accordingly. 	You were 	further 	advised that unless you
amended the charge to state a prima facie case, 	or withdrew it
prior to September 29, 	1988, 	the charge would be dismissed.
1 	have not 	received either 	a 	request 	for withdrawal or 	a 	second
amended charge. 	I 	am therefore dismissing 	the charge based on
the facts and reasons contained in my August 30, 	1988 	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 	(California Administrative Code, 	title 8,
section 32135). 	Code of Civil Procedure section 1013 	shall
apply. 	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
(California Administrative Code, 	title 8, 	section 32635(b)).
Dr. W. Slater Hollis, Ph.D., J.D.
September 30, 1988
Page 2

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 California
Administrative Code, 	title 	8, 	section 32140 	for 	the 	required
contents 	and 	a 	sample 	form.) 	The document will 	be 	considered
properly 	"served" 	when 	personally delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
Extension 	of 	Time
A 	request 	for 	an extension of 	time 	in which to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A 	request 	for 	an
extension must 	be 	filed 	at 	least 	three 	calendar 	days 	before 	the
expiration of 	the 	time 	required 	for 	filing 	the document. 	The
request must 	indicate good cause 	for 	and, 	if 	known, 	the
position of 	each other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by proof 	of 	service 	of 	the 	request 	upon each
party 	(California Administrative Code, 	title 8, 	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,
CHRISTINE ACHRISTINE A. BOLOGNA	R
General Counsel
By John W. 	S p i t t l e r
SS 	Assistant General Counsel	Counsel
Attachment.
cc: 	William G. 	Knight, 	Assistant General Counsel
Office 	of 	the 	General 	Counsel
The 	California 	State 	University
400 	Golden 	Shore
Long 	Beach, 	CA 90802
5364d
Dr. W. 	Slater Hollis, Ph.D., 	J.D.
September 30, 	1988
Page 3
. .
A 	coun~

STATE OF CALIFORNIA 	George DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
August 	30, 	1983
Dr. 	W. 	Slater Hollis, 	Ph.D., 	J.D.
Re: W. Slater
v. California State University System,
Case No. 	LA-CE-222-II 	- Warning 	Letter
Dear Dr. 	Hollis:
Your 	amended 	charge 	was 	filed 	on 	June 	28, 	1988. 	It 	alleges
violations 	of 	the 	Higher 	Education 	Employer-Employee 	Relations
Act 	(HEERA) 	sections 3571(a), 	(c) 	and (d).
Essentially, 	you 	have 	alleged 	that 	the 	employer 	had 	entered
into 	an 	illegal 	agreement with 	the 	exclusive 	representative.
You 	allege 	that 	the 	employer 	interfered 	with 	and 	met 	and
conferred 	in 	bad 	faith with 	the 	exclusive 	representative. 	You
base 	this 	allegation 	on 	your 	dissatisfaction 	with 	certain
provisions 	of 	the 	agreement.
You 	alleged 	in 	a 	companion 	charge 	(LA-CO-15-H) 	against 	the
exclusive 	representative 	that 	it 	had 	breached 	its 	duty 	of 	fair
representation 	because 	it 	created 	a 	two-tier 	Faculty 	Early
Retirement 	Program 	(FERP). 	The 	organization, 	faced with 	a
proposal 	to 	completely 	eliminate 	the 	program, 	negotiated 	a
two-level 	FERP, 	i.e., 	FERP would 	be 	available 	to 	all 	faculty
members 	except 	those 	in 	hard 	to 	recruit/replace 	disciplines.
You 	were 	in 	a 	designated 	hard 	to 	recruit/replace 	discipline,
business. 	A warning 	letter 	was 	issued 	on 	this 	charge.
You 	believe 	that 	the 	employer 	entered 	into 	a 	collusive 	contract
to 	your 	detriment. 	You 	believe 	that 	the 	employee 	organization
committed 	an 	unfair 	practice 	in 	doing 	so 	and 	you 	believe 	that
the 	employer 	likewise 	committed 	an 	unfair 	practice.
1031
S a c r a m e n t o , ,
18TH 	Stl
C A 9 5 8 1 414 4174
(
..--

In 	e 	recent case, 	Oxnard School 	District 	(Gorcey/Tiipp) 	(1988)
PERB Decision No. 	667, 	the Board held that 	individuals did not
have 	legal 	standing 	to bring 	a 	charge of 	bad 	faith bargaining
against 	an employer, 	i.e., 	only the exclusive 	representative
can bring 	such a charge.
The 	Board 	based 	its 	analysis 	on Government 	Code 	section
3543.5(c) 	which makes 	it unlawful 	for 	a public school 	employer
to, 	"refuse or fail 	to meet 	and negotiate 	in good faith with 	an
exclusive 	representative." 	(Emphasis 	added.)
Likcv?ise, 	Government Code section 3571(c) 	makes 	it unlawful 	for
a 	higher education employer 	to, 	"refuse or 	fail 	to engage 	in
meeting 	and 	conferring 	with 	an 	exclusive 	representative."
(Emphasis 	added.)
The 	similarity of the statutes 	is obvious. 	As 	is 	the
applicability of 	the Oxnard 	School 	District decision.
Accordingly you, 	as an individual, 	cannot bring a charge
pursuant to section 3571(c).
An 	interference charge, 	pursuant to section 3571(a) 	must
demonstrate,
[a] nexus . 	. 	. between the employer's
conduct 	and the exercise of 	a 	protected
right 	resulting 	in 	harm or 	potential 	harm to
that right which, 	in balance, 	outweighs the
employer's 	proffered 	business 	justification.
CSEA v. 	Regents of
University_of	University 	of
California (19 83) PERB
Decision No. 	308-H,
p. 8.
In Regents 	of University of California, 	the employee
organization 	charged 	that 	the 	employer 	committed 	an 	unfair
practice 	by 	limiting 	the 	number 	of 	representatives 	available 	to
employees 	utilizing 	grievance 	procedures. 	As 	to 	the 	section
3571(a) 	charge, 	the Board stated,
Slater 	Hollis
August 30, 	1908
Page 	2
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. 	. 	. 	in order 	to 	sustain 	its 	c h a r g e s , 	CSEA
is 	required 	to 	d e m o n s t r a t e 	t h a t , 	as 	a 	result
of 	the 	university's 	limitation 	on
r e p r e s e n t a t i v e s , 	the 	rights 	of 	the 	e m p l o y e e s
w e r e 	harmed. 	H o w e v e r , 	merely 	demonstrating
that 	m u l t i p l e 	representatives 	would 	provide
better 	representation 	is 	insufficient. 	The
U n i v e r s i t y ' s 	rule 	is 	unlawful 	if 	the 	impact
of 	it 	is 	to 	d e p r i v e 	e m p l o y e e s 	of 	their
statutory 	rights 	to 	effectively 	present
their 	g r i e v a n c e s .
Regents of the University
of 	California, 	supra,
PERB Decision No. 	308-H,
pp. 8-9.
The Board went 	on to hold 	that:
[t]o be violative of HEERA, 	the potential
for 	harm must 	emerge 	in the context of
reasonably 	anticipated 	circumstances 	from
which 	it 	is 	logical 	to 	infer or expect 	that
harm to employees' 	rights would 	result.
Regents 	of University of
California, supra, 	PERB
Decision No. 308-H, pp.
14-15.
No 	protected 	right 	has 	been demonstrated by you. 	Participation
in 	FERB 	is 	not 	a 	protected 	right. 	Your exclusive
representative did 	not 	commit 	an 	unfair 	practice 	by 	negotiating
a 	two-level 	FERB plan.
Lastly, 	you have 	alleged 	an unfair 	practice has 	occurred
pursuant to section 3571(d). 	However, 	outside of 	the bare
allegation, 	you have presented no 	factual 	basis 	for 	the charge.
while citing 	much 	authority, 	you 	have 	failed 	to 	allege 	how 	the
employer 	committed 	an unfair 	practice within 	the 	legal 	analysis
reviewable by PERB.
Slater 	Hollis
August 30, 	1983
Page 3

For 	these 	reasons, 	the 	charge 	as 	presently written 	does 	not
state 	a 	prima 	facie 	case. 	If 	you 	feel 	that 	there 	arc 	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 	September 	15, 	1988, 	I 	shall 	dismiss
your 	charge. 	If 	you 	have 	any 	questions 	on 	how 	to 	proceed,
please 	call 	me 	at 	(916) 	323-8015.
Sincerely,
John W. Spittler
Assistant 	General 	Counsel
4946d
Slater 	Hollis
August 30, 	1988
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