Regents of the University of California (PERB 1804H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RANDOLPH D. ROCK,
Charging Party, Case No. LA-CE-868-H
Vv. PERB Decision No. 1804-H
REGENTS OF THE UNIVERSITY OF January 4, 2006
CALIFORNIA,
Respondent.

Appearances: Randolph D. Rock, on his own behalf; Consulting Services and Labor Relations,
University of California, Irvine by Ann T. Finan, Manager, for Regents of the University of
California.
Before Duncan, Chairman; Whitehead, Shek and McKeag, Members.
DECISION

WHITEHEAD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by Randolph D. Rock (Rock) of a Board agent’s dismissal
of his unfair practice charge (attached). The unfair practice charge alleged that the Regents of
the University of California (University) violated the Higher Education Employer-Employee
Relations Act (HEERA)' by failing to reclassify Rock’s position because of his protected
activity. Rock alleged that this conduct constituted a violation of HEERA section 3571 (a), (b)
and (c).

The Board has reviewed the entire record in this matter, including the unfair practice

charge, the University’s response, the Board agent’s warning and dismissal letters, Rock’s

appeal, and the University’s response to Rock’s appeal. In light of our review, the Board finds

'HEERA is codified at Government Code section 3560, et seq.

the Board agent's dismissal to be free from prejudicial error and adopts the dismissal as the
decision of the Board itself.2
ORDER
The unfair practice charge in Case No. LA-CE-868-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan, Members Shek and McKeag joined in this Decision.
2The Board will not consider the June 19, 2005 amended appeals letter, which was filed
a month after the case was docketed and notice was issued that filings were complete. Not
only is this addendum late-filed but it provides new information without any showing of good
cause. (PERB Regulation 32635(b); PERB regs. are codified at Cal. Code Regs., tit. 8, sec.
31001, et seq.)
2

,,,
STATE OF CALIFORNIA 	A~LD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax: (510) 622-1027
April 13, 2005
Randolph D. Rock
483 E. First Street
Tustin, CA 92780-3311
Re: 	Randolph D. Rock v. Regents of the University of California
Unfair Practice Charge No. LA-CE-868-H
DISMISSAL LETTER
Dear Mr. Rock:
...
)'
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the Regents of the University
of California, Irvine violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by discriminating against you because of your protected activity.
I indicated to you in my attached letter dated March 29, 2005, 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 April 8, 2005, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my March 29, 2005 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 I 00 I et seq.

LA-CE-868-H
April 13, 2005
Page 2
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. (Regulation 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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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. 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. (Regulation 32132.)
Final Date
Ifno appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel

LA-CE-868-H
April 13, 2005
Page 3
B
z
Regional Director
Attachment
cc: Ann T. Finan
Therese Leone

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
.
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax: (510) 622-1027
1
March 29, 2005
Randolph D. Rock
483 E. First Street
Tustin, CA 92780-3311
Re: 	Randolph D. Rock v. Regents of the University of California
Unfair Practice Charge No. LA-CE-868-H
WARNING LETTER
Dear Mr. Rock :
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the Regents of the University
of California, Irvine violated the Higher Education Employer-Employee Relations Act
(HEERA) 1 by discriminating against you because of your protected activity.
My investigation revealed the following. 	You were employed on August 23, 20002 at UC
Irvine in the Graduate School of Management as an Administrative Assistant II, a
classification which is exclusively represented by the Coalition of University Employees
(CUE). In October 2000, you received your original job description. In May 2002, the job
description was revised to include graduation support. 	·
On September 17, 2002, you requested that your classification be reclassified to
Administrative Specialist. The request was evaluated and ultimately denied by Department
Manager Katherine Gonzalez on November 19, 2002. 3 On November 15, 2002, you filed a
grievance regarding the reclassification issue. The step one response issued on December 5,
2002, denied the grievance; however, Central Human Resources reviewed the classification
matter. On December 17, 2002, the reclassification request was denied. After several
information requests, you withdrew the grievance on March 13, 2003.
On August 16, 2004, you voluntarily gave notice of your intent to resign. Your last day of
work at the University was August 27, 2004. During the approximate time of your departure, a
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 October 16, 2000 was also given as the date of hire. Whichever date is correct has no
bearing on the outcome of the unfair practice charge.
3 Your supervisor until December 2002, Clare Lorenzo, submitted a letter to PERB on
your behalf indicating that she felt you were worthy of a salary increase, including a re-class,
as early as September 2001. However, she conceded that the decision to approve an increase
was beyond her level of

LA-CE-868-H
March 29, 2005
Page 2
new Dean of the Graduate School was appointed (August 1, 2004), along with two new
Assistant Deans (July 26 and August 16, 2004). A major restructuring of the office occurred
during which the Deans identified new support needs. A new position description was written,
evaluated and classified, which included the need for executive assistant level support. Duties
included supporting the new Assistant Dean, including counseling PhD students and
conducting research and analysis on potential donors, analytical projects for the Dean and
Associate Deans, development and weekly presentation of a highly public electronic event
display, and serving as Executive Assistant to the Associate Dean. The new position was
classified as an Assistant Administrative Analyst and excluded from the CUE clerical unit.
The position was posted on September 1 and filled on October 4, 2004. Your former position
was either eliminated or reorganized. Your former duties were either eliminated, or reassigned
to the Assistant Administrative Analyst, the Executive Assistant to the Dean, the Development
Coordinator, the faculty Assistant Supervisor, the Business Office or the Instructional Support
staff.
CUE filed a grievance on your behalf on October 1, 2004 alleging violations of various
contract articles. On February 1, 2005, the University denied the grievance and the requested
remedies for various reasons, including Article 7.D which states that grievances filed by
individuals who resign their employment are deemed withdrawn. CUE filed for arbitration on
March 1, 2005.
You indicate that you have exercised protected rights by participating in CUE activities. Your
participation includes the following: 	interim secretary for Irvine CUE local (January 2002-
February 2003); sympathy strike effort with AFT (October 1-16, 2002); promotional poster
with newspaper article (October 22, 2002); candidate for Irvine local bargainer (March-June
2001); bargainer training sessions (March-June 2001); delivery of flyers at union campaigns
(March 2001-August 2004); participant at statewide Executive Board meetings (April 2001-
November 2002); UC Irvine campus discussions regarding CUE (January 2001-August 2004);
CUE statewide trustee (January 2002-December 2002); Irvine CUE local meetings participant
(October 2000-March 2003 and January 2004-August 2004); CUE/UC bargaining sessions
attendee/participant (June 2003 and August 2004); wearing of union buttons; and, staffing the
CUE table at the staff picnic.
You also allege that "decision makers at GSM were hostile to Unions and its activities." You
indicate that your last supervisor told you directly that she disagreed with unions, that the
previous Senior Assistant to the Dean strongly opposed your activity, and that you had to keep
silent your union activities especially when you used vacation days to perform duties with the
Union.
Although you do not provide a specific legal theory to support your charge, it is appropriate to
evaluate your allegations using a both a discrimination and interference analysis. Simply
stated, you argue that the University did not grant your reclassification requests because of
your protected activity. Confirmation of your suspicions is demonstrated by the actions taken
by the University upon your resignation, i.e., an employee was hired at a higher classification

LA-CE-868-H
March 29, 2005
Page 3
(Assistant Administrative Analyst)4 than your former classification (AAII), and the new
classification was excluded from the CUE unit.
The statute of limitations under HEERA is six (6) months. (HEERA sec.3563.2(a). It is well
settled that the limitations period begins to run once a charging party knows or should have
known of the conduct underlying the charge. (Fairfield-Suisun Unified School District (1985)
PERB Decision No. 547.) In addition, a charging party's belated discovery of the legal
significance of the underlying conduct does not excuse an otherwise untimely filing. (UCLA
Labor Relations Division (1989) PERB Decision No. 735-H (UCLA.) In this case, you were
informed of the decisions regarding your reclassification request on November 19, 2002 and,
as part of the grievance process, on December 17, 2002. You withdrew your reclassification
grievance on March 13, 2003. Your discovery of the University's creation of a new position or
reclassification of your former position after you gave notice and departed does not re-start the
limitations period. Accordingly, your allegation that the University discriminated against you
by denying your reclassification requests for protected activities is untimely.
Even if your charge were timely filed, it fails to state a prima facie case for the reasons that
follow. 	To demonstrate a violation ofHEERA 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 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California {Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
{Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
4 The Assistant Administrative Analyst is a higher classification than the
reclassification you sought to Administrative Specialist.

LA-CE-868-H
March 29, 2005
Page 4
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
,
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
There is no question that you exercised rights under HEERA as evidenced by the wide range of
activities in which you participated on behalf of CUE. The University apparently had
knowledge of some of the activities in which you were involved during your active four year
tenure, as evidenced by your receipt of authorized time to attend union functions and activities.
However, you do not provide information that demonstrates that you were denied your
reclassification or suffered any other adverse actions because of the exercise of those rights.
The allegation that the University denied your reclassification requests for discriminatory
reasons would also have to be dismissed for this reason.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
You provide no specifics in order to evaluate your interference allegations. You do not
provide information regarding when and what was specifically said by your last supervisor
when she expressed her dislike of unions. Similarly, you do not indicate when and by what
actions or speech the Senior Assistant strongly opposed your union activity.
The test for whether a respondent has interfered with the rights of employees under the
HEERA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The Board described the standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. (State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad

LA-CE-868-H
March 29, 2005
Page 5
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union. Local 99 (Kimmett} (1979)
PERB Decision No. 106.)
Under the above-described test, a violation may only be found ifHEERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding of coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity. As stated
above, your interference allegations are not supported with information to support a prima
facie violation.
In addition, you do not provide information regarding a constructive discharge. To establish a
prima facie case of constructive discharge, a charging party must demonstrate: (1) that the
burden imposed upon the employee must cause, and be intended to cause, a change in the
employee's working conditions so difficult or unpleasant as to force the employee to resign; and
(2) the burden was imposed because of the employee's protected activity. (Hacienda La Puenta
Unified School District (1988) PERB Decision No. 685.) You voluntarily gave notice and
resigned your position on August 27, 2004. You did not receive negative evaluations or any
other adverse actions because of your protected activity. The only apparent adverse action, i.e.,
denial of your reclassification request, occurred on December 17, 2002, well outside PERB 's
six months statute of limitations. Since you provide no information which demonstrates that
your resignation was forced or coerced due to your participation in union affairs, this allegation
does not state a prima facie violation.
Finally, the Board has held that an individual employee does not have standing to pursue
violations of the rights of an employee organization. (State of California (Department of
Corrections) (1993) PERB Decision No. 972-S.) CUE, as the exclusive representative of the
clerical unit, is the sole entity that is entitled to question, challenge, or bargain the effects
related to the University's elimination of a classification, or its creation of a new classification,
including whether or not the new classification belongs in the clerical unit.
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
are any factual inaccuracies in this letter or additional facts that 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 signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. IfI do not receive an
amended charge or withdrawal from you before April 8, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.

LA-CE-868-H
March 29, 2005
Page 6

Sincerely,
QA N)

Anita I. Martinez
Regional Director

AIM