California State University (California State Employees Association/Service Employees International Union Local 1000) (PERB 0890H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION/SEIU 	LOCAL 	1000,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
SAN DIEGO,
Respondent.
Case No. 	LA-CE-278-H
PERB Decision No. 	890-H
June 19, 	1991
Appearances: 	Howard Schwartz, 	Attorney, 	for California State
Employees' 	Association/SEIU Local 	1000; 	William B. 	Haughton,
Attorney, 	for California State University, 	San Diego.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the California 	State
Employees' 	Association/SEIU Local 	1000, 	of a Board agent's
dismissal 	(attached hereto) 	of 	its 	charge that the California
State University, 	San Diego violated 	section 3571(b) 	of the
Higher Education Employer-Employee 	Relations Act 	(HEERA).1
We have reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt 	it as 	the decision of the Board itself.
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher 	education
employer to do 	any of 	the 	following:
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
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The unfair practice 	charge 	in Case No. 	LA-CE-278-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Shank 	joins 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	3.
N
	2

Hesse, 	Chairperson, 	concurring: 	Consistent with my dissent
in State 	of 	California 	(Department 	of 	Parks 	and 	Recreation)
(1990) 	PERB Decision No. 	810a-S, 	I 	find that the alleged conduct
is 	covered by the collective bargaining agreement. 	Therefore, 	I
would defer 	and dismiss 	the 	entire 	unfair practice 	charge 	to
binding 	arbitration.
The 	unfair practice 	charge 	alleges 	that 	the 	California 	State
University, 	San Diego 	(CSU) 	unlawfully discriminated against
Christina A. 	Jackson 	(Jackson) 	in retaliation for her protected
activity. 	Specifically, 	California State Employees'
Association/SEIU Local 	1000 	(CSEA) 	alleges 	that Jackson was 	not
chosen 	for 	a permanent 	appointment 	and was 	terminated 	after 	she
had 	asked CSEA 	for 	assistance 	in an 	informal 	meeting with 	her
supervisor. 	The unfair practice 	charge 	alleges 	that 	this 	conduct
violated sections 	3571 	(a), 	(b) 	and 	(c) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA).
Although HEERA 	is 	governed by the deferral 	standards 	set
forth 	in Dry Creek Joint 	Elementary 	School 	District 	(1980) 	PERB
Order No. 	Ad-81a 	(Dry Creek),1 some of 	the deferral principles
enunciated 	in Lake 	Elsinore 	School 	District 	(1987) 	PERB 	Decision
No. 	646 	(Lake Elsinore) 	are 	similar. 	The language of 	section
3541.5(a)(2) 	of the EERA expressly 	states 	that the Public
Employment Relations 	Board 	(Board) 	shall not:
1Although this 	case 	arose under the 	Educational 	Employment
Relations Act 	(EERA), 	and was 	overruled on statutory grounds, 	the
rationale 	is 	still 	applicable to 	cases 	under HEERA. 	(Regents 	of
the 	University of California 	(1984) 	PERB Order No. 	Ad-13 9-H;
California State University 	(1984) 	PERB Decision No. 	392-H.)
3

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.
Pursuant to Lake Elsinore, 	the Board is 	required to dismiss 	and
defer an unfair practice 	charge 	if: 	(1) 	the grievance procedure
of 	the parties' 	collective bargaining agreement culminates 	in
binding arbitration, 	and 	(2) 	the conduct alleged in the unfair
practice 	charge 	is prohibited by the parties' 	collective
bargaining agreement. 	Under HEERA, 	deferral 	is 	appropriate
where: 	(1) 	the dispute arises within a stable collective
bargaining 	relationship where 	there 	is 	no 	enmity by 	the
respondent toward the charging party; 	(2) 	the respondent 	is 	ready
and willing 	to proceed 	to 	arbitration and must waive 	the
contract-based procedural defenses; 	and 	(3) 	the contract and 	its
meaning 	lie 	at the 	center of the dispute. 	(See Dry Creek and
Collyer 	Insulated Wire 	(1971) 	192 	NLRB 	837 	[77 	LRRM 	1931].)
Although the 	Board 	is 	not 	required to defer under 	the Dry
-
Creek/Collyer 	standard, 	the Board has 	long followed the National
Labor 	Relations 	Board's 	policy of prearbitral 	deferral when 	the
Collyer 	standards 	are met. 	Generally, 	when a dispute arises 	over
the 	application or 	interpretation of 	an 	existing 	collective
bargaining agreement, 	the desireable method 	for 	settlement 	should
be the parties' 	agreed-upon method of dispute resolution. 	(Lake
Elsinore. 	p. 	30 citing Collyer Insulated Wire, 	supra, 	192 NLRB
837. )
44

Applying the 	Dry Creek/Collyer 	standard here, 	the 	three
prongs 	are 	satisfied. 	There 	is 	no 	evidence that the parties 	are
not 	operating within a 	stable 	collective 	bargaining 	relationship,
and 	CSU has 	indicated 	its 	willingness 	to proceed 	to 	arbitration
and waive all procedural defenses. 	Finally, 	the 	Board must
determine whether the conduct 	(matter at 	issue or dispute) 	is
covered by the 	collective bargaining agreement. 	Here, 	the unfair
practice 	charge 	involves 	the 	allegations 	that 	CSU 	unlawfully
terminated 	Jackson 	in retaliation 	for 	her protected 	activity.
This 	allegation directly 	involves 	an 	interpretation of Article V,
Union Rights, 	section 5.14, 	of the collective bargaining
agreement which provides 	"[a]n 	employee 	shall 	not 	suffer
reprisals 	for participation 	in union activities." 	The 	collective
bargaining 	agreement 	also provides 	for 	binding 	arbitration and
defines 	the 	exclusive representative 	as 	a 	grievant when alleging
a 	violation of 	its 	rights 	under the 	collective bargaining
agreement.
As 	the 	conduct 	(CSU's 	denial 	of permanent 	appointment 	and
termination) 	is 	covered by the parties' 	collective bargaining
agreement, 	I 	conclude that the entire unfair practice charge
should 	be 	dismissed 	and 	deferred 	to 	binding 	arbitration.
5

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
' !):'l
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 	90010-2334
(213)736-3127
amPERU
December 5, 	1990
David N. 	Villarino
Labor 	Relations 	Representative
CA State Employees' 	Association/SEIU Local 	1000
Post Office 	Box 	62
Keene, 	California 	93531
Re: 	California State Employees 	Association/SEIU Local 	1000
v. 	California State University. 	San Diego.
Unfair Practice Charge No. 	LA-CE-278-H
DISMISSAL OF 	CHARGE AND 	REFUSAL 	TO 	ISSUE 	COMPLAINT
7
Dear Mr. 	Villarino:
This 	case 	involves 	a 	charge 	that the California 	State 	University
(CSU or University) 	unlawfully discriminated/coinmitted a 	reprisal
against Ms. 	Cristina A. 	Jackson, 	in retaliation for her protected
activity 	in violation of HEERA section 3571 (a)1(b)2and 	(c). 	The
charge was filed on July 31, 	1990.
I 	indicated to you 	in my attached letter dated November 26. 	1990
that the HEERA section 3571(a) 	allegation contained in the above-
referenced charge was 	subject to deferral 	to arbitration. 	I 	also
indicated to you that the 	allegations 	contained 	in the 	charge did
not 	state a prima 	facie violation of HEERA section 3571(b) 	and
(c). 	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 	or withdrew them prior 	to 	December 	3.
1990. 	they would be dismissed.
On December 4, 	1990 	at approximately 	12:15 p.m., 	I 	called you and
asked 	if 	you 	intended to 	file 	an amended 	charge 	or a withdrawal.
You 	stated, 	in relevant part, 	that you believed the University
will 	argue 	at 	the 	arbitration hearing 	that 	it 	could dismiss
Ms. 	Jackson for any reason at all, 	or, 	that it did not have to
give a reason for her dismissal. 	Thus, 	you argued the
arbitration 	is 	futile and any deferral 	to arbitration of 	the
HEERA section 3571(a) 	allegation is 	inappropriate. 	You also
indicated you would provide me with 	some 	case 	authority by
1Alleged in error as 	section 3572(a).
2Alleged in error as 	section 357(b).
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Dismissal 	of 	Charge
LA-CE-278-H
December 5, 	1990
Page 	2
3:30 p.m. 	on December 4, 	1990. 	I 	have not heard from you or
received 	any case 	authority 	since we 	spoke 	on 	December 	4th.
Also, 	as 	indicated in my letter dated November 26, 	1990 and
during our telephone 	conversation, 	no 	futility has 	been 	shown.
Therefore, 	since 	I 	have not received either a request 	for
withdrawal or an amended charge, 	I 	am dismissing the above
allegations which are 	subject to deferral 	to arbitration, 	and
which 	fail 	to 	state a prima 	facie 	case based on this 	letter and
the facts and reasons 	contained 	in my November 	26. 	1990 	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 Code of Regulations, 	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 Code 	of
Regulations, 	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 Code 	of
Regulations, title 8, 	section 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 California Code of 	Regulations,
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.
'

Dismissal 	of 	Charge
LA-CE-278-H
December 5, 	1990
Page 3
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 Code 	of
Regulations, 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,
.T
JOHN W. 	SPITTLER
General 	Counsel
By
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	William B. 	Haughton, 	Esq.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
PERO
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
November 26, 	1990
David N. 	Villarino
Labor 	Relations 	Representative
CA State Employees' 	Association/SEIU Local 	1000
Post Office Box 	62
Keene, 	California 	93531
Re: 	WARNING LETTER, 	California State Employees' 	Association/
SEIU Local 	1000 v. 	California State University. 	San Diego,
Unfair Practice Charge No. 	LA-CE-278-H
Dear Mr. Villarino:
This 	case 	involves 	a charge that the California 	State University
(CSU or University) 	unlawfully discriminated/committed a 	reprisal
against Ms. 	Cristina A. 	Jackson, 	in retaliation for her protected
activity in violation of HEERA section 3571(a)1 (b)2and 	(c). 	The
charge was 	filed on July 31, 	1990.
My 	investigation and 	the 	charge 	revealed 	the 	following
information. 	There 	is a 	collective bargaining agreement
(Agreement) 	between CSEA/SEIU Local 	1000 	and CSU with effective
dates of June 	1, 	1989 through May 31, 	1992. 	Article VII, 	section
7.2 	of 	the Agreement provides 	that 	"The term 'grievant' as 	used
in this Article may refer to the union when alleging a violation
of Union Rights 	as provided for in this Agreement." 	In Article
V, 	Union Rights, 	section 5.14 provides 	"An employee 	shall not
suffer reprisals 	for participation 	in union activities." 	Article
VII, 	section 7.22 provides that the arbitrator's 	award shall be
final 	and binding on both parties.
On March 7, 	1990, 	Ms. 	Jackson met with David Villarino, 	CSEA's
Labor Relations 	Representative 	and asked 	for assistance. 	He
advised her to request an informal meeting between Ms. 	April
StammerJohn, 	Supervisor of Accounts Payable, 	Mr. 	Villarino, 	and
Ms. 	Jackson. 	Ms. 	Jackson made this request to Ms. 	StammerJohn,
but Ms. 	Stammerjohn did not answer the question. 	CSEA has
alleged that on November 23, 	1989, 	Ms. 	Jackson interviewed for
the position of 	Intermediate Account 	Clerk at 	San Diego 	State
University 	along with 	other applicants 	including Mr. 	Fernando
Castro. 	Ms. 	Jackson was 	led to believe that if 	she was 	selected
1Alleged in error as 	section 3572(a).
2Alleged in error as 	section 357(b).
(

Warning 	Letter
LA-CE-278-H
November 26, 	1990
Page 2
for the position, 	she would become permanent after the duration
of her temporary employment. 	On November 27, 	1989, 	she was
notified 	that 	she 	had been 	selected 	for 	the 	temporary position.
Her 	employment 	in the Accounts 	Payable 	office 	commenced on
November 28, 	1989. 	Mr. 	Castro applied for a separate temporary
10-week appointment which became available 	on or about 	January
15, 	1990. 	He was 	selected for that position.
On March 2, 	1990, 	Ms. 	StammerJohn notified Ms. 	Jackson, 	that she
was 	choosing Mr. 	Castro 	for the permanent appointment which Ms.
Jackson believed she would get. 	Ms. 	Jackson questioned Ms.
Stammerjohn about this, 	and Ms. 	StammerJohn indicated that 	she
didn't think Ms. 	Jackson would fit in. 	She thought that Mr.
Castro would fit better. 	Mr. 	Stammerjohn also 	indicated that Ms.
Jackson 	could 	either 	leave 	at 	that 	time 	or 	stay until 	the 	end of
May 	1990. 	Jackson indicated her desire to 	stay until 	the 	end of
May. 	On March 5, 	1990, 	Ms. 	Jackson met with Ms. 	Stammerjohn to
verify Ms. 	StammerJohn's remarks of March 2, 	1990. 	The prior
information was 	confirmed again on March 	5, 	1990. 	On or about
March 7, 	1990, 	Ms. 	Jackson gave Ms. 	Stammerjohn a memorandum to
confirm their discussions of March 2 	and 5, 	1990. 	It was
requested that Ms. 	Stammerjohn respond 	in writing if 	she
disagreed with the memorandum. 	On March 9, 	1990, 	Ms. 	Stammerjohn
requested authority 	from the personnel 	office to 	fire Ms.
Jackson. 	She requested that Ms. 	Jackson's temporary appointment
expire on March 16, 	1990. 	On March 15, 	1990, 	Mr. 	Villarino came
to the office and Ms. 	Jackson notified Ms. 	Stammerjohn that Mr.
Villarino wished to 	speak with her. 	After a 	short meeting with
Stammerjohn, Mr. Villarino advised Ms. 	Jackson that Ms.
Stammerjohn wasn't willing to talk to him that day, 	but
reluctantly agreed to 	set a date 	for an informal 	meeting. 	Ms.
Stammerjohn needed 	to 	speak with 	someone 	at 	the personnel 	office
before meeting with Mr. Villarino. 	On March 	16, 	1990, 	Mr. 	Grant
Taunton, 	Manager of Classification and Employment, 	delivered a
termination notice to Ms. 	Jackson.
On March 	16, 	1990, 	the termination date, 	Ms. 	Jackson asked why
she was 	being terminated 	since 	she 	thought 	she 	could 	stay 	until
the end of May. 	Ms. 	Stammerjohn replied that under the 	contract
she did not have to give any reason. 	At 	an 	informal 	conference
in April 	1990, 	regarding the grievance 	filed on behalf of Ms.
Jackson, 	Mr. 	Villarino asked Mr. 	Taunton for the reason Ms.
Jackson was 	terminated. 	Mr. 	Taunton indicated that he did not
have to give a reason. 	On May 	16, 	1990, 	Mr. 	Villarino met with
Mr. 	Dan Gilbreath, 	the University Controller, 	regarding the
grievance filed on behalf of Ms. 	Jackson. 	Mr. 	Gilbreath
indicated that 	she was 	terminated due 	to budgetary 	constraints.

Warning 	Letter
LA-CE-278-H
November 26, 	1990
Page 3
Based 	on 	the 	facts 	stated 	above 	and 	PERB 	Regulation 	32620(b)(5)
(California Administrative Code, 	title 8, 	section 32650(b)(5)),
the 	HEERA 	section 	3571(a) 	allegation must 	be dismissed and
deferred 	to 	arbitration under 	the Agreement.
PERB Regulation 32620(b)(5) 	requires 	the board agent processing
the charge to:
Dismiss 	the charge or any part 	thereof 	as
provided in section 32630 if 	. 	. 	. 	it is
determined that 	a 	complaint 	may 	not 	be 	issued
in light of Government Code 	sections 	3514.5,
3541.5 	or 3563.2 	or because 	a dispute arising
under HEERA is 	subject 	to 	final 	and binding
arbitration.
In Dry Creek Joint Elementary 	School 	District 	(1980) 	PERB Order
No. 	Ad-81a, 	the Board explained that:
[W]hile there 	is 	no 	statutory deferral
requirement 	imposed 	on 	the 	National 	Labor
Relations Board 	(hereafter NLRB), 	that agency
has 	voluntarily adopted 	such 	a policy both
with 	regard 	to post-arbitral 	and pre-arbitral
award situations. 	(Footnote omitted.) 	EERA
section 3541.5(a) 	essentially codifies 	the
policy developed by 	the 	NLRB 	regarding
deferral 	to arbitration proceedings 	and
awards. 	It is appropriate, 	therefore, 	to
look for guidance to the private 	sector.
(Footnote to Fire Fighters 	Union v. 	City of
Vallejo (1974) 	12 	Cal.3d 	608.)
Although this 	case 	arose under the 	Educational 	Employment
Relations Act 	(EERA), 	and was overruled on statutory grounds, 	the
rationale 	is 	still applicable to cases 	under HEERA. 	Regents 	of
the University of California 	(1983) 	PERB Order No. 	Ad-13 9-H;
California State University 	(1984) 	PERB Decision No. 	392-H.
In Collyer Insulated Wire 	192 	NLRB 	837, 	77 	LRRM 	1931 	(1971) 	and
subsequent 	cases, 	the NLRB articulated 	standards 	under which
deferral 	is 	appropriate 	in prearbitral 	situations. 	These
requirements are: 	(1) 	the dispute must arise within a 	stable
collective bargaining relationship where 	there 	is 	no 	enmity by
the respondent toward the charging party; 	(2) 	the respondent must
be 	ready 	and willing 	to proceed 	to 	arbitration 	and 	must waive

Warning 	Letter
LA-CE-278-H
November 26, 	1990
Page 4
contract-based procedural defenses; 	and 	(3) 	the contract and its
meaning must 	lie at 	the 	center of 	the dispute.
These standards are met with respect to this case. 	First, 	no
evidence has 	been produced to 	indicate that 	the parties 	are 	not
operating within 	a 	stable 	collective 	bargaining relationship.
Second, 	by the attached letter from its 	representative, 	William
B. 	Haughton, 	Esq. 	dated August 6, 	1990, 	the Respondent has
indicated 	its willingness 	to proceed to 	arbitration and to waive
all procedural defenses. 	Finally, 	the issue raised by this
charge 	that 	CSU 	unlawfully 	discriminated 	/committed 	a 	reprisal
against Ms. 	Jackson in retaliation for her protected 	activity,
directly 	involves 	an 	interpretation of Article V, 	section 	5.14 	of
the Agreement.
Accordingly, 	the HEERA 	section 	3571(a) 	allegation must be
deferred to 	arbitration and will 	be dismissed.3 Such dismissal
is without prejudice to the Charging Party's right, 	after
arbitration, 	to 	seek a 	repugnancy review by PERB of 	the
arbitrator's 	decision under the Dry Creek criteria. 	See PERB
- -	Regulation 32661 	(California Administrative Code, 	title 	8,
section 32661; 	Los Angeles Unified School 	District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint Elementary School District,
supra. You recently raised the issue that deferral to arbitration is- -
inappropriate due to 	futility. 	Since Ms. 	Jackson held a
temporary position, 	you 	indicated 	that according to 	the Education
Code, 	the University could dismiss her without cause. 	This
evidence does 	not demonstrate 	futility. 	First, 	futility is not
mentioned in PERB Regulation 32620(b)(5). 	Second, 	assuming that
the concept of 	futility is 	recognized under HEERA, 	it would
operate 	to prevent 	deferral 	to 	arbitration where 	it would be
futile 	for the 	charging party to 	attempt 	to 	arbitrate 	the matter.
This 	is 	shown when, 	for example, 	the charging party is an
individual 	and the 	exclusive 	representative refuses 	to 	take 	the
person's 	case to arbitration. 	Here, 	the charging party's
grievance 	is 	not 	impacted by 	the grievant's 	rights 	under the
Education Code. 	McFarland Unified School 	District 	(1990) 	PERB
Decision No. 	786, 	rev. 	pending. 	Thus, 	no futility has been
shown.
3Based on State of California, 	Department of Parks 	and
Recreation 	(CAUSE) 	(1990) 	PERB Decision No. 	810-S, 	and the
language of the contract which only covers the 	"(a)" 	violation, 	I
will not defer the allegation of a 	"(b)" 	violation.

Warning 	Letter
LA-CE-278-H
November 26, 	1990
Page 5
The allegations 	also 	fail 	to 	state 	a prima 	facie violation of
HEERA section 3571(b) 	for the 	following reasons. 	Section 	3571(b)
provides 	that 	it 	is 	unlawful 	to deny to employee 	organizations
rights guaranteed to them in HEERA. 	However, 	under HEERA,
employee 	organizations 	have 	not been 	granted a 	general 	and
independent 	statutory right to represent unit members 	in their
employment 	relations with 	their 	employer.4 This 	significant
limitation on the 	rights 	of 	employee 	organizations 	under HEERA
has been found to be 	intentional. 	In Regents 	of 	the 	University
of California v. 	Public 	Employment Relations Board 	(1985) 	168
Cal.App.3d 937, 	945, 	214 Cal. 	Rptr. 	698 the Court of Appeal
stated:
We read the 	legislative 	omission as 	merely 	shifting
emphasis. 	The non-exclusive 	employee organization may
continue to represent its members 	in many ways, 	but the
initiative 	for 	representation must 	come 	from the
employee. 	The employee has a right to be represented,
but 	the organization does 	not have an independent 	right
to represent.
The Court's 	analysis 	applies with equal 	force to an exclusive
representative or a 	non-exclusive representative; 	HEERA grants
to 	the 	exclusive 	representative 	only 	an 	independent 	right 	of
representation 	to 	meet and 	confer with the 	employer pursuant 	to
HEERA 	section 	3570.5.
Finally, 	the charge alleges 	insufficient 	facts to 	state a prima
facie violation of HEERA section 3571(c). 	The thrust of this
case 	clearly involves 	allegations 	of 	reprisal 	for protected
activity. 	It does 	not allege 	any 	facts which would give 	rise 	to
a violate of the 	employer's 	duty to bargain.
4The Legislature 	omitted 	enacting a provision 	in HEERA
similar to 	section 	3515.5 	of 	the Dills Act or section 	3543.1(a)
of 	EERA which provided the 	employee 	organization 	the 	right 	to
represent 	their members 	in their 	employment relations 	with the
employer.
sAs will be 	stated hereafter, 	insufficient 	facts have been
alleged to 	support 	an 	independent, 	prima 	facie violation of
section 3571(c), 	refusal or failure of CSU to meet and confer
with the union.

Warning 	Letter
LA-CE-278-H
November 26, 	1990
Page 6
If you 	feel 	that 	there are 	any 	factual 	inaccuracies 	in this
letter or any 	additional 	facts 	which would require 	a 	different
conclusion than the one 	explained above, 	please 	amend the 	charge
accordingly. 	This 	amended 	charge 	should be prepared on a
standard 	PERB 	unfair practice 	charge 	form clearly 	labeled 	First
Amended 	Charges 	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
December 3, 	1990, 	I 	shall dismiss your charge without leave to
amend. 	If you have any questions 	on how to proceed, 	please call
me or Tom Allen at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
Attachment

THE CALIFORNIA STATE UNIVERSITY
• 	• 	• 	• 	• 	• 	•	BAKERSFIELD 	CHICO 	DOMINGUEZ HILLS 	FRESNO 	FULLERTON 	HAYWARD 	HUMBOLDT 	LONG BEACH 	LOS ANGELES • 	•	NORTHRIDGE 	POMONA
SACRAMENTO • 	• 	• 	• 	• 	• 	•	SAN BERNARDINO 	SAN DIEGO 	SAN FRANCISCO 	SAN JOSE 	SAN LUIS OBISPO 	SAN MARCOS 	SONOMA 	STANISLAUS
ONE STAD
vox
VERITIES
SAVITA	OFFICE OF GENERAL COUNSEL
TELEPHONE: ( 2 1 3 ) 	5 9 0 ~ 5 6 2 9 	TELEFAX: (213) 499-6040
8-63M040
August 	6, 	1990
Marc S. 	Hurwitz
Regional 	Attorney
Public 	Employment 	Relations 	Board
3530 Wilshire Blvd., 	Suite 	650
Los Angeles, 	California 	90010-2334
Re: 	Unfair Practice Charge No. 	LA-CE-278-H - CSEA/SEIU Local
1000 	v. 	California 	State University - Alleged Retaliation
for 	Union Activity 	(Cristina 	Jackson) 	- 	San Diego 	State
University; 	Our File No. 	L90-603
Dear Marc:
Enclosed herewith 	is 	a 	copy of 	the grievance which has 	been
filed 	in this matter, 	as 	admitted 	in paragraphs 	5a 	and 5b of
the 	unfair 	practice 	charge.
The 	grievance 	alleges 	a 	violation of Article 	5.14 	of 	the
current 	CSEA-CSU collective bargaining 	agreement, 	a 	copy of
which 	is 	on 	file with PERB. 	This 	article provides:
"An 	employee 	shall 	not 	suffer 	reprisals 	for 	participation
in union activities."
An affidavit of 	the employee, 	Cristina A. 	Jackson, 	dated
March 23, 	1990, 	is 	attached in support of 	the grievance. 	This
is 	the 	identical 	affidavit 	attached as Attachment 	"A" 	to 	the
unfair 	practice 	charge 	to 	support 	the 	allegation of 	reprisals
for 	participation 	in union 	activities.
There 	can 	be 	no 	question 	in 	this 	case 	because 	of 	the 	identical
affidavit 	that 	the 	interpretation 	and meaning 	of 	Article 	5.14
as well 	as Article 	11.5 	of 	the contract 	lies 	at 	the core of
this 	dispute. 	The contract 	contains 	a 	grievance procedure
which can culminate 	in binding 	arbitration 	(Article 	7 ) . 	The
parties 	have 	a 	stabile 	collective 	bargaining 	relationship 	and
CSU will waive 	all 	procedural 	defenses 	it 	has 	to 	arbitrating
OFFICE OF THE CHANCELLOR • 400 GOLDEN SHORE, LONG BEACH, CA 90802-4275 	INFORMATION: (213) 590-5506

Marc S. 	Hurwitz
August 	6, 	1990
Page 2
the dispute, 	including timeliness, 	if PERB dismisses 	this
charge 	based on 	deferral.
All 	of 	the Collyer 	elements 	supporting 	deferral 	to 	arbitration
-are present 	in this case. 	Moreover, 	as 	a matter of policy, 	CSU
should not 	be 	required 	to 	litigate 	the 	same 	issue 	in multiple
forums.
Based on 	the 	foregoing, 	this 	charge 	should be 	dismissed 	by PERB
and 	deferred 	to 	arbitration.
Sincerely,
BRUCE M. 	RICHARDSON
Acting 	General 	Counsel
William B. 	Haughton
Senior 	Labor 	Relations 	Counsel
WBH:mks:0146E
Enclosure