Regents of the University of California (Lawrence Berkeley) (PERB 0998H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MICHAEL T. 	BAUBLITZ,
Charging 	Party,
v.
UNIVERSITY OF CALIFORNIA 	(LAWRENCE
BERKELEY 	LABORATORY),
Respondent.
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) 	Case No. 	S-CE-53-H
PERB Decision No. 	998-H
May 26, 	1993
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Appearance; 	Michael T. 	Baublitz, 	on his own behalf.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Michael 	T. 	Baublitz
(Baublitz) 	of the Board agent's dismissal, 	attached hereto, 	of
his 	unfair practice 	charge 	alleging 	that 	the University of
California 	(Lawrence Berkeley Laboratory) 	violated 	section
3571(a) 	of 	the Higher Education Employer-Employee Relations
Act 	(HEERA)1.
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
HEERA section 3571 	states, 	in relevant 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
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.

The 	Board has 	reviewed 	the 	Board 	agent's 	warning 	and
dismissal 	letters, 	and finding 	them to be 	free 	of prejudicial
error, 	adopts 	them as 	the 	decision of 	the Board 	itself 	together
with 	the 	following discussion.
DISCUSSION
Baublitz's 	charge was 	dismissed 	for 	failing 	to 	state a prima
facie 	case. 	On appeal 	he presents additional 	evidence 	in support
of his allegations. 	However, 	PERB Regulation 32635(b)2 prohibits
the 	introduction of 	new evidence 	on appeal 	absent 	a 	showing of
good cause.
(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
Therefore, 	as Baublitz has not alleged any facts 	to show good
cause, 	the Board 	cannot 	consider the new evidence presented 	in
his appeal.
ORDER
The unfair practice 	charge 	in Case No. 	S-CE-53-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
2PERB 	regulations 	are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 26, 	1993
Michael T. 	Baublitz
Re: 	Michael T. 	Baublitz v. 	University of 	California 	(Lawrence
Berkeley 	Laboratory)
Unfair Practice Charge 	Case No. 	S-CE-53-H
DISMISSAL 	LETTER
Dear Mr. Baublitz:
On January 29, 	1993, 	you filed a 	charge 	in which you allege 	that
the University of 	California Regents, 	(Lawrence Berkeley
Laboratory) 	(University), 	violated section 3571(a) 	of the
Government 	Code 	(Higher Education Employer-Employee 	Relations Act
(HEERA or Act)) 	by denying your request 	for 	reasonable
accommodation, 	by denying your request be 	reinstated to 	full-time
status 	with an accommodation 	to work part 	time 	at 	home 	and by
terminating 	your 	employment.
I 	indicated to you, 	in my attached letter dated February 4, 	1993,
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 	which would 	correct 	the
deficiencies 	explained in 	that 	letter, 	you 	should amend 	the
charge. 	You were further advised that, 	unless you amended the
charge 	to 	state a prima facie 	case 	or withdrew it 	prior to
February 11, 	1993, 	the charge would be dismissed.
On February 10, 	1993, 	you spoke to Regional Attorney Bernard
McMonigle and requested an extension of 	time until 	February 	18,
1993 	to 	file an amended charge. 	Regional 	Attorney McMonigle
agreed to give you an extension of 	time until 	February 18, 	1993.
On February 19, 	1992, 	you filed an amended charge.
On February 22, 	1993, 	I spoke with you and informed you that your
charge 	did not 	contain a proof 	of 	service 	indicating 	that 	you 	had
served 	the 	respondent with a 	copy of 	the amended charge. 	You
responded 	that 	you did not 	feel 	you were 	given 	enough 	time 	to
file an amended charge and 	that you 	did not 	recall 	if you had
served 	the 	respondent 	with a 	copy of 	the amended 	charge. 	On
February 24, 	1993, 	you telephoned me and stated 	that you had been
confused 	regarding 	the proof 	of 	service 	and would 	send me 	a
completed proof 	of 	service.

Michael E. 	Baublitz
Case No. 	S-CE-53-H
February 26, 	1993
Page 2
I 	have 	summarized 	the 	following 	allegations 	contained 	in your
amended 	charge:
On August 21, 	1992, 	the management of Medical
Services 	(persons unknown) 	cancelled a
meeting arranged weeks 	in advance 	between 	the
Director, 	Dr. 	Henry Stauffer, 	Workers
Compensation Attorney Jim Kreelie 	[sic] 	and
yourself 	to address 	a 	long 	standing 	request
to be 	transferred out 	of Department 	due 	to
job stress 	and 	for health 	reasons.
All 	your requests 	for medical 	release and
"reasonable accommodation" 	in order to
fulfill 	approved 	"career plan" 	were denied.
Department 	Head, 	Robert 	Fink acted on orders
of his 	superiors 	to have you suspended 	from
your job for three 	(3) 	days, 	without pay and
you were 	threatened with 	further action
leading to dismissal.
On September 17, 	1992, 	a letter of intent to
dismiss was presented to you by Mr. 	Fink with
a 	threatened 	termination date 	of 	October 	1,
1992, 	to deny you any recourse to a grievance
hearing.
On or about September 17, 	1992, 	you asked
your supervisor, 	Linda Smith to postpone any
issuance of papers 	for one day, 	which the
Department 	Head 	rejected.
On or about September 17, 	1992, 	when you told
your supervisor 	that 	you were 	so upset 	by 	the
impending 	threat 	of 	termination and asked 	to
go 	to Medical 	Services 	to 	see 	the Doctor 	in
charge, 	Mr. 	Fink proceeded to come 	into your
office 	unannounced and 	delivered 	a 	sealed
envelope 	to you by dropping 	it 	on your 	chair.
You 	informed Mr. 	Fink that 	"I believe my
rights 	are being denied. 	I 	am entitled 	to
have representation. 	. 	.I 	asked my supervisor
to 	defer 	this until 	tomorrow and allow me 	to
go to medical. 	. 	." 	Mr. 	Fink replied 	"I
don't 	think so."
Mr. 	Fink continued to 	intimidate 	threaten and
anger you 	by 	assuming 	all 	supervisory

Michael E. 	Baublitz
Case No. 	S-CE-53-H
February 26, 	1993
Page 3
functions; 	even denying you meetings with
your 	supervisor.
Mr. 	Fink's 	calculated steps 	to 	remove you
from your 	job 	in 	effect 	terminated your
"career plan" 	which was 	approved 	for 	several
years 	in order 	to allow you advancement 	to 	a
full 	time 	career position based 	on your
attaining an advanced degree 	(MA) 	which would
entitle you 	to do 	research with and 	for your
employer as 	well 	as 	conduct 	"educational
outreach" 	in the 	interests 	of 	science
education.
You were 	denied any 	opportunity 	to pursue
your long approved 	"career plan" 	in effect
denying you 	any 	career advancement 	and 	equal
opportunity 	for 	full 	employment 	at 	UC-LBL.
Your amended charge appears 	to allege 	that 	the University denied
your request 	for representation during a meeting 	on September 	17,
1992, 	when Mr. 	Fink delivered a letter of 	intent 	to dismiss 	you.
In NLRB v. 	Weingarten. 	Inc. 	(1975) 	420 US 251 the U.S. 	Supreme
Court upheld 	the 	right 	of an employee 	to have a union
representative 	present 	at 	an 	investigatory 	interview with 	the
employer which 	the 	employee 	reasonably believes 	may 	result 	in
disciplinary action. 	The rule 	includes all 	offenses, 	but
excludes 	"such run-of-the-mill 	shop-floor conversations as, 	for
example, 	the giving of 	instructions 	or training or needed
corrections of work techniques." 	Quality Mfg. 	Co., 	(1972) 	195
NLRB No. 	42 at 	122. 	In Baton Rouge Water Works 	Company 	(1979)
246 NLRB 995, 	the NLRB reaffirmed its 	rule 	that 	the 	right 	to
union representation applies 	to a disciplinary 	interview, 	whether
labeled 	investigatory or not, 	so 	long as 	the 	interview 	in
question 	is 	not merely for the purpose 	of 	informing 	the 	employee
that 	he 	or she 	is 	being disciplined.
The 	Public Employment Relations Board 	(PERB or Board), 	in Regents
of the University of California 	(1983) 	PERB Decision No. 	310-H
adopted 	the Weingarten 	rule 	as 	applying 	to 	employees 	covered by
the HEERA. 	PERB, 	in Rio Hondo Community College District 	(19 82)
PERB Decision No. 	260, 	also adopted a 	rule affording Weingarten
rights 	to employees. 	However, 	quoting from Baton Rouge, 	supra,
PERB 	stated:
To 	the 	extent 	that 	the Board has 	in the past
distinguished between 	investigatory 	and

- -
Michael 	E. 	Baublitz
Case No. 	S-CE-53-H
February 26, 	1993
Page 4
disciplinary interviews. 	In light 	of
Weingarten and our 	instant 	holding, 	we 	no
longer believe 	such 	a distinction 	to be
workable or desirable. 	It was 	this
distinction 	which 	Certified 	Grocers
abandoned, 	and 	to 	that 	extent we 	still
believe 	the decision was 	correct. 	Thus 	the
full 	purview of 	protections 	accorded
employees 	under Weingarten 	apply 	to both
"investigatory" 	and 	"disciplinary"
interviews, 	save, 	only those conducted for
the 	exclusive purpose 	of 	notifying an
employee 	of 	previously 	determined
disciplinary action" 	Baton Rouge Water Works
Company. 	supra at p. 	99 7.
The 	facts 	alleged in your 	charge 	indicate 	that Mr. 	Fink came 	into
your 	office 	and delivered a 	sealed 	envelope 	to you which
contained a letter of 	intent 	to dismiss, 	effective on October 1,
1992. 	The purpose of 	the September 17, 	1992 meeting between you
and Mr. 	Fink was 	to give you the 	letter of 	intent 	to dismiss.
Therefore, 	the University did not violate your rights by refusing
to provide you with a 	representative when Mr. 	Fink presented you
with the 	letter of 	intent 	to dismiss.
None 	of 	the 	remaining allegations 	contained 	in your amended
charge demonstrate a prima 	facie violation of 	the HEERA. 	As 	I
informed you 	in my February 4, 	1993 	letter, 	to demonstrate a
violation of HEERA section 3571(a), 	the 	charging party must show
that: 	(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. 	(Novato Unified School 	District
(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School District
(1979) 	PERB Decision No. 	89; 	Department of Developmental Services
(1982) 	PERB Decision No. 	228-S; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Under HEERA an employee has 	the 	right 	to form, 	join, 	and
participate 	in 	the activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for 	the purpose 	of 	representation on all 	matters 	of
employer-employee 	relations. 	See Government 	Code 	section 3565.
Your amended 	charge 	fails 	to 	establish 	that 	you 	engaged 	in
protected activity. 	Even assuming you 	engaged 	in protected
activity, 	your 	charge 	fails 	to 	establish that 	the University knew
that 	you 	had 	engaged 	in protected activity 	or 	the 	University 	took

Michael E. 	Baublitz
Case No. 	S-CE-53-H
February 26, 	1993
Page 5
adverse 	action against 	you because 	of 	your 	engaging 	in protected
activity. 	Therefore, 	your amended charge 	fails 	to state a prima
facie violation of 	the HEERA.
I 	am therefore, 	dismissing your charge based on 	the 	facts 	and
reasons 	contained 	in 	this 	letter and my February 4, 	1993 	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. 	(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:
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.

Michael E. 	Baublitz
Case No. 	S-CE-53-H
February 26, 	1993
Page 6
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
By
Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Regents 	of 	the University of California
Susan M. 	Thomas, 	University Counsel
Office of 	the General 	Counsel
300 	Lakeside Drive, 	7th Floor
Oakland, 	CA 	94612-3565

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 4, 	1993
Michael T. 	Baublitz
Re: 	Michael T. 	Baublitz v. 	University of 	California 	(Lawrence
Berkeley Laboratory). 	Unfair Practice Charge No. 	S-CE-53-H
WARNING 	LETTER
Dear Mr. 	Baublitz:
On January 29, 	1993, 	you filed a charge in which you allege 	that
the University of 	California Regents, 	(Lawrence Berkeley
Laboratory) 	(University), 	violated section 3571(a) 	of the
Government 	Code 	(Higher 	Education Employer-Employee 	Relations Act
(HEERA or Act)) 	by denying your request 	for reasonable
accommodation, 	by denying your request 	to be 	reinstated to 	full-
time 	status with an accommodation to work part 	time at 	home 	and
by 	terminating 	your 	employment.
On February 3, 	1993, 	I 	spoke with you and informed you that your
charge 	failed 	to 	set 	forth any dates when 	the alleged 	conduct
occurred. 	I also 	informed you 	that 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	has a six month statute of
limitations. 	You 	responded 	that you had 	recently 	learned about
the 	existence 	of 	PERB and that you 	thought 	it was 	unfair 	for 	PERB
to have 	such a short 	statute of 	limitations. 	You also 	informed
me 	that most 	of 	the 	University's 	conduct 	occurred beyond 	the
statute of 	limitations, 	however, 	you were 	served with the 	intent
to dismiss 	letter on September 25, 	1992.
In order 	to 	state 	a prime 	facie 	case 	a 	Charging 	Party must 	allege
and ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred or was 	discovered within 	the 	six-month period
immediately preceding 	the 	filing 	of 	the 	charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194.
Government 	Code 	section 3563.2(a) 	states 	in relevant part:
Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board

Mr. Baublitz
S-CE-53-H
February 4, 199 3
Page 2
shall 	not 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based upon an 	alleged unfair practice'
occurring more 	than 	six months prior 	to 	the
filing of 	the 	charge.
Your charge was 	filed with PERB on January 29, 	1993, 	which means
that 	any alleged unfair practice 	should have 	occurred during 	the
six-month statutory period which began on July 29, 	1992. 	The
allegations 	contained 	in your 	charge 	fail 	to set 	forth any dates
therefore, 	those allegations must be dismissed.
During our telephone 	conversation of 	February 3, 	1992, 	you stated
that 	you 	received your intent 	to dismiss 	letter 	on September 25,
1992. 	To demonstrate a violation of HEERA section 3571(a), 	the
charging party must 	show that: 	(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. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
As presently written, 	this 	charge 	fails 	to demonstrate any of
these 	factors 	and 	therefore 	does 	not 	state 	a prima 	facie
violation of HEERA section 3571(a).
For these reasons 	the charge, 	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 	signe-d 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 February 11, 	1992, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Regional 	Attorney
Michael E. 	Gash