California Faculty Association (Chapman and Druzgalski) (PERB 1933H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BARBARA S. CHAPMAN and CHRISTOPHER
DRUZGALSKI,
Charging Parties,
V.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
Case No. SA-CO-62-H
PERB Decision No. 	1933-H
December 21, 2007
Appearances: Barbara S. Chapman and Christopher Druzgalski, on their own behalf; Rothner,
Segall & Greenstone by Bernhard Rohrbacher, Attorney, for California Faculty Association.
Before Shek, McKeag and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal of a Board agent's dismissal of an unfair practice charge filed by
Barbara S. Chapman and Christopher Druzgalski (Charging Parties). 	The charge alleges that
the California Faculty Association (CF A) violated the Higher Education Employer-Employee
Relations Act (HEERA) 1 by interfering with Charging Parties' statutory rights and failing to
fairly represent them.
Specifically, Charging Parties allege that CF A blocked implementation of certain
grievance procedures, thus requiring its members to use a grievance procedure that does not
provide the procedural standards required by Education Code section 89542. 5. In addition, the
charge alleges CFA interfered with Charging Parties' efforts to convince the Academic Senate
1HEERA is codified at Government Code section 3560, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

to implement certain grievance procedures. The Board agent found the charge to be untimely
filed and dismissed the charge.
Based on a review
of
Charging Parties' appeal and the entire record in this case, the
Board affirms the dismissal for the reasons discussed below.
BACKGROUND
Education Code section 89542.5 requires the California State University (CSU) to
establish grievance and disciplinary action appeal procedures. Among other procedures,
Education Code section 89542.5 provides for peer review and binding arbitration. Prior to
October 2001, HEERA section 3572.5 authorized CFA and CSU to supersede the grievance
requirements
of
Education Code section 89542.5 when negotiating a memorandum
of
understanding (MOU).
In October 2001,
SB
12122 was enacted to modify the supersession provisions in
HEERA. HEERA section 3572.5(6) requires that Education Code section 89542.5 procedures
must, at a minimum, be included in the grievance procedure3 negotiated by CF A and CSU.
Under the terms
of
SB 1212, however, the parties may negotiate greater benefits or rights than
those set out in Education Code section 89542.5. SB 1212 applied to MOUs entered into after
January
1,
2002.
CFA and CSU were parties to a MOU effective July
1,
1998 through June 30, 2001.
The MOU contained procedures for contract grievances (Article 10), faculty status grievances
(Article 10) and disciplinary action appeals (Article 19). The contract grievance procedure
included three steps: "Level I - Campus Level Review," "Level II - System Level Review,"
2Statutes of 2001, chapter 808.
3The grievance procedure herein refers to both grievance and disciplinary action appeal
procedures.
2

and final and binding arbitration. The contract grievance procedure did not include peer
review. However, the faculty status grievance procedure contained a peer review option.
When
SB
1212 was enacted, CF A and CSU were engaged in negotiations over a
successor agreement. In early 2002, the parties determined they were not going to quickly
reach agreement on revisions to the grievance procedure to implement SB 1212. On March
3,
2002, CF A and CSU agreed to "extend the terms
of
Article 10 and
19
until such time as an
agreement on
SB
1212 implementation is reached or until the statutory bargaining process
applicable to the
SB
1212 implementation issue
is
completed."
CF A and CSU reached an agreement on the remainder
of
a successor contract, which
was effective May 14, 2002 through June 30, 2004.4 The MOU included the following
statement as a footnote to Articles
10
and
19:
At the time
of
this printing, Article 10 [and Article 19,
respectively] is subject to negotiations as described in the
Memorandum
of
Understanding 'SB 1212' contained in
Appendix F. When negotiations are completed, an updated
version
of
Article 10 [and Article 19] will be available.
Negotiations on the implementation
of
SB 1212 continued and eventually the parties
reached impasse. 	On October 15, 2003, CFA filed an unfair practice charge alleging CSU had
unlawfully insisted to impasse that CF A waive statutory rights. In essence, CF A and CSU
disputed whether there could be limits on the authority
of
the arbitrator to resolve grievances. 5
4At some point CFA and CSU extended the MOU to June 30, 2005.
5Prior to SB 1212, the contractual grievance procedure, among other provisions, limited
an arbitrator's authority to decide faculty tenure disputes to procedural matters and to
circumstances when the decision of the campus president was arbitrary. In Trustees of the
California State University (2006) PERB Decision No. 1823-H, the Board agreed with CF A
that SB 1212 precluded limits on the authority of the arbitrator to decide the merits of these
disputes. On September 26, 2007, the Court of Appeal reversed the Board's determination and
directed the Board to vacate its decision. (Board of Trustees of California State University v.
Public Employment Relations Board (2007) 155 Cal.App.4 th 866 [66 Cal.Rptr.3d 389].)
3

Charging Parties are faculty members employed by CSU and are members
of
the
bargaining unit exclusively represented by
CF A.
On May 19, 2004, Christopher Druzgalski (Druzgalski) filed a grievance alleging a
violation
of
various terms
of
the MOU. Druzgalski's contract grievance was processed
pursuant to Article 10, which did not include peer review by a faculty review committee.
Ultimately, CSU rejected the grievance in November 2004. In April 2005, CF A declined to
submit the grievance to arbitration.
In November 2004, Barbara Chapman (Chapman) exchanged numerous emails with
CF A officials regarding the status
of
the implementation
of
SB 1212. Chapman asserted that
CF A had prohibited faculty from exercising their right
to
peer review and binding arbitration
of
grievances. Chapman believed that
SB
1212 removed the grievance procedure from the
scope
of
representation thus prohibiting CFA from negotiating with CSU over the terms
of
a
grievance procedure. Chapman contended that after
SB
1212 was enacted, peer review was
exclusively within the purview
of
the Academic Senate where grievances would be heard by
faculty review committees established by the Academic Senate.
In a December 13, 2004 letter to Chapman, CFA Director
of
Representation, Edward
Purcell (Purcell), described CF A's ongoing efforts to reach agreement with CSU on the
implementation
of
SB 1212. He stated that CF A had filed an unfair practice charge involving
the dispute. Purcell reported that as negotiations progressed, CF A and CSU reached a tentative
agreement to give employees the option of two different grievance procedures, including one
that incorporated the provisions of Education Code section 89542.5. CF A stated that this
represented a higher level of benefits as allowed by SB 1212 by giving employees a choice of
grievance procedures. However, Purcell told Chapman that CF A and CSU had not concluded
the grievance procedure negotiations.
4

In January 2005, Chapman informed the Academic Senate
of
the requirements
of
SB
1212, opining that it had an obligation to form faculty review committees to review faculty
grievances. Thereafter, CF A President, John Travis, addressed the Academic Senate and
reported that CFA continued to bargain with CSU over implementation
of
SB 1212. The
Academic Senate later advised Chapman that it would not consider implementation
of
SB 1212
as the grievance procedure was a negotiable subject outside the purview
of
the Academic
Senate.
Chapman and Druzgalski filed their unfair practice charge on March 11, 2005. 	On
September 28, 2005, the Board agent dismissed the charge as untimely filed.
CHARGING PARTIES' APPEAL
Charging Parties contend the charge is timely because they did not become aware
of
CF A's opposition to implementation
of
the statutory grievance procedures until receiving
Purcell's December 13, 2004 letter. 	Charging Parties contend this was their first indication that
CF A had deliberately delayed restoration
of
faculty due process rights.
Furthermore, Charging Parties contend CF A processed Druzgalski's grievance within
the statutory limitations period using procedures that violated his right to peer review. 	They
further assert that CF A interfered with Chapman's efforts to convince the Academic Senate to
implement SB 1212 when CF A informed academic senators that CF A continued to negotiate
changes to the grievance procedure. Alternatively, Charging Parties claim that CF A's conduct
demonstrates a continuing violation.
Regarding the substance of their charge, Charging Parties contend CF A interfered with
employee rights by blocking peer review of faculty grievances. They cite Druzgalski's
grievance as an example where Druzgalski was denied peer review and arbitration of his
grievance. 	Charging Parties also believe CF A breached its duty of fair representation by
5

requiring employees to use a grievance procedure that did not meet minimum statutory
standards, failing to inform employees
of
their rights under SB 1212, and by bargaining over
faculty rights that were not within the scope
of
representation.
In response to the appeal, CF A believes the Board agent correctly found the charge
untimely filed. 	Even on the merits
of
the charge, however, CF A contends the Charging Parties
have not alleged facts that state a prima facie case
of
interference or a breach
of
the duty
of
fair
representation.
DISCUSSION
Initially, we must decide whether the charge was filed within the statutory limitations
period. 	HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating
that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision
No. 1024; State
of
California (Department oflnsurance) (1997) PERB Decision No. 1197-S.)
On March
3,
2002, CF A and CSU entered into an agreement to maintain the existing
grievance procedure while they continued to negotiate implementation
of
SB 1212. On
May 14, 2002, CFA and CSU reached agreement on the remainder
of
the terms and conditions
of
employment. 	The May 14, 2002 agreement included a statement that the parties continued
to negotiate the implementation of SB 1212. It stated that the provisions of the revised
grievance procedure would be added when negotiations were completed. Clearly, Charging
Parties knew or should have known on or soon after May 14, 2002 that CF A had not
6

implemented the terms
of
SB
1212.6 The charge was filed on March 11, 2005, nearly three
years after the MOU was effective.
Furthermore, on May 19, 2004, Druzgalski filed his grievance under Article 10, a
procedure that did not include peer review. 	Simply by reviewing the grievance article in the
MOU, Druzgalski knew or should have known his grievance would be processed under a
procedure that did not include consideration by a faculty review committee. As the date
of
the
grievance also falls outside the statutory limitations period, the allegations that CF A interfered
with employee rights and breached its duty
of
fair representation by failing to implement
SB 1212 is untimely filed. 7
An unfair practice allegation may still be considered to be timely filed
if
the alleged
violation is a continuing one. To establish a continuing violation a charging party must
demonstrate that the violation has been revived by subsequent unlawful conduct within the
statutory limitations period. (San Dieguito Union High School District (1982) PERB Decision
No. 194; UCLA Labor Relations Division (1989) PERB Decision No. 735-H.) However, a
continuing violation will not be found where the employer's conduct during the limitations
period constituted an unfair practice only by its relation to the original offense. (El Dorado
Union High School District (1984) PERB Decision No. 382 (El Dorado UHSD).)
Charging Parties assert they did not learn
of
CF A's opposition to the implementation
of
SB 1212 until receiving Purcell's December 13, 2004 letter. 	Charging Parties do not allege a
Although we do not need to reach the merits
of
this allegation, clearly CF A had no
authority to unilaterally modify the grievance procedure absent an agreement with CSU.
7 Assuming Charging Parties are alleging CF A breached its duty of fair representation
when it refused to submit Druzgalski's grievance to arbitration in April 2005, this allegation
does not state a prima facie case. Charging Parties have not alleged facts that CF A's decision
declining to arbitrate the grievance demonstrated bad faith, discrimination or arbitrary conduct.
(United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258; Reed District
Teachers Association, CTA/NEA (Reyes) ( 1983) PERB Decision No. 332.)
7

lack
of
awareness that CFA had not implemented SB 1212. Rather, they contend that this was
when they learned that CF A was opposed to the requirements
of
SB 1212. This argument
is
unavailing. First, Purcell's letter does not express opposition to the requirements
of
SB
1212. Just the opposite, Purcell described CF A's ongoing efforts to reach an agreement
with CSU to incorporate the mandatory provisions
of
Education Code section 89542.5 into the
grievance procedure. Furthermore, the statute
of
limitations runs from the discovery
of
the
conduct constituting the unfair practice, not from the discovery
of
the legal significance
of
the
alleged unlawful conduct. (Fairfield-Suisun Unified School District (1985) PERB Decision
No. 547.) In March 2002, CFA and CSU agreed to extend the existing grievance procedures
and this was expressly reflected in the May 2002 MOU. There has been no change in CF A's
efforts to implement SB 1212. The fact that Charging Parties received a bargaining update
from CF A within the statutory limitations period does not make this allegation timely filed. 	A
similar argument was expressly rejected by the Board in State
of
California (Department
of
Corrections) (2003) PERB Decision No. 1559-S (Department
of
Corrections).
In Department
of
Corrections, the charging party alleged that his allegations were
continuous violations occurring between April
1,
2000 through July
1,
2002. 	The charging
party argued, among other things, that because he unsuccessfully requested information on
July 1, 2002, his charge, filed on December 21, 2002 was timely filed. 	The Board found,
however, that it was "clear that he was aware
of
these issues in November and December 2000
and cannot argue that they are a continuing violation just because he requested information
about them again in July 2002." Citing other Board decisions, the Board stated in Department
of Corrections that "a violation is not timely where the State's conduct during the limitations
period relates back to the original offense. 	[Citations]" Here, CF A's December 13, 2004 letter
providing a bargaining update relates back to the charging party's original allegations that CF A
8

failed to implement
SB
1212, a failure that charging parties knew or should have known about
in May, 2002.
Charging Parties also contend that CF A's continued use
of
a grievance procedure that
does not include all
of
the Education Code section 89542.5 provisions demonstrates a
continuing violation.
In 2002, when it was unable to reach an agreement with CSU on the implementation
of
SB
1212, CF A and CSU agreed to extend the existing grievance procedure while negotiations
continued. During the period described in the charge, CF A continued to operate under the
existing grievance procedure as it had been unable to reach an agreement with CSU over
revisions to the grievance procedure.
As explained by the Board in El Dorado UHSD, "for a continuing violation, new
conduct independent
of
the original conduct must occur during the limitations period." There
is no evidence that CF
A's conduct during the time in question independently constituted an
unfair practice. Thus, Charging Parties have not established a continuing violation. As
discussed above, Charging Parties knew or should have known shortly after the effective date
of
the May 2002 MOU that CFA had not incorporated the provisions
of
SB 1212. Because the
unfair practice charge was filed nearly three years after the MOU was effective, we find this
allegation was not timely filed.
Finally, Charging Parties allege CF A's communication with the Academic Senate
interfered with their efforts in January 2005 to convince the Academic Senate that it was
responsible for review of faculty grievances. This allegation, while timely filed, does not state
a prima facie case.
To state a prima facie case of interference, a charging party must establish that the
respondent's conduct tends to or does result in some harm to employee rights granted under
9

10
HEERA. 	(State
of
California (Department
of
Developmental Services) (1983) PERB Decision
No. 344-S; Carlsbad Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) A
violation may only be found
if
HEERA provides the claimed rights.
HEERA section 3565 grants employees the right to participate in the activities
of
their
employee organization or to refuse to join the employee organization or participate in its
activities. HEERA section 3562(£)(2) expressly excludes the Academic Senate from the
definition
of
employee organization. Thus, rights involving faculty participation in the
Academic Senate are not covered by HEERA. Charging Parties have not demonstrated that
CF A interfered with their protected rights under HEERA when CF A informed the Academic
Senate that it continued to negotiate with CSU over implementation
of
SB 1212.
ORDER
The unfair practice charge in Case No. SA-CO-62-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Shek and McKeag joined in this Decision.