Trustees of the California State University (East Bay) (PERB I056H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
(t
WENJIU LIU,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Case No. SF-CE-995-H
PERB Order No. JR S 6 H
June 7, 2013
Appearances: Wenjiu Liu, on his own behalf; Dawn S. Theodora, University Counsel, for
Trustees of the California State University (East Bay).
DECISION
This case is before the Public Employment Relations Board (PERB or Board) on the
fifth request for injunctive relief filed by Wenjiu Liu (Liu) against the Trustees of the
California State University (East Bay) (CSUEB). The unfair practice charge filed by Liu
alleges that CSUEB retaliated against him by denying him tenure and promotion, by
suspending him without pay, by banning him from campus pursuant to Penal Code
section 626.4,’ and by terminating his employment. PERB issued a complaint based on these
allegations, and has conducted several days of formal hearing on these charges, the last day of
which was April 5, 2013.
Liu has filed four prior requests for injunctive relief with the Board. All have been
denied. We deny this request as well, for reasons discussed below.
Penal Code section 626.4 permits the chief administrative officer of a California State
University campus (or his/her designee) to withdraw consent for any person to remain on
campus when there is reasonable cause to believe that person "has willfully disrupted the
orderly operation of such campus or facility."

STANDARDS FOR INJUNCTIVE RELIEF
Higher Education Employer-Employee Relations Act (HEERA) section 3563(i)2
empowers the Board, "[u]pon issuance of a complaint charging that any person has engaged in
or is engaging in an unfair practice, the board may petition the court for appropriate temporary
relief or restraining order."
The appropriate test used to determine when PERB will seek injunctive relief requires
that two elements be established: (1) reasonable cause must exist to believe an unfair practice
has been committed; and (2) injunctive relief must be "just and proper." (Public Employment
Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 896 (Modesto);
County of San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M
(San Joaquin).) Traditional equitable considerations "come into play" in determining whether
injunctive relief is just and proper. (Modesto, at p. 896; Antioch Unified School District, et al
(1985) PERB Order No. IR-47, at pp. 21-22: "If the damage is easily ascertain able [sic] and a
money judgment will afford adequate relief, an injunction should be denied.")
Because PERB issued a complaint on Liu’s unfair practice charge, we assume for the
sake of this decision that the first prong of the Modesto test has been satisfied. Showing that
reasonable cause to believe an unfair practice has been committed is not a high burden. The
party seeking the injunction does not need to establish that an unfair practice has in fact been
committed, but only that the theory supporting the claim is not insubstantial or frivolous.
(San Joaquin, at p. 7; Modesto, at p. 896.) We leave to the administrative adjudication process
the question of whether unfair practices have in fact been committed. 3
HEERA is codified at Government Code section 3560 et seq.
In Case No. SF-CE-995-H, the administrative law judge (AU) has issued a decision
dismissing Liu’s unfair practice charge. As of this date, the time for filing exceptions to that
decision has not expired.
2

It is the second prong of Modesto whether injunctive relief is "just and proper" that
is at issue here. Injunctive relief will be deemed just and proper under circumstances in which
the unfair practice, if committed, would render any final order of the Board meaningless or "so
devoid of force that the remedial purposes of the Act will be frustrated." (Modesto, at pp. 902-
903.) However, if the unfair practice can be remedied by back pay or some other type of make
whole remedy without compromising the remedial authority of the Board, an injunction will
generally not be found to be "just and proper," unless the purposes of the labor relations
statutes within our jurisdiction will be frustrated in the absence of injunctive relief.
Thus, PERB has granted a union’s request for injunctive relief on behalf of an
employee who was suspended in the middle of the union’s organizing campaign. The
individual was the union’s only organizer. (San Joaquin.) In that case, PERB recognized that
even if the organizer was ultimately reinstated after an administrative hearing, "the Board
would be unable to remedy the ’serious impact’ of the suspension of the primary union
supporter during the election balloting if injunctive relief is not sought. ....If injunctive
relief is not sought, [employee’s] removal from the workplace would have a severe chilling
effect on any organization efforts." (San Joaquin, at p. 13.)
While each request for injunctive relief is assessed on its individual merit, the Board
has generally looked to traditional equitable principles in cases where individual employees
allege retaliation or discrimination by the employer. In the absence of a union organizing
campaign or where there is no allegation or credible evidence that the alleged unfair practice
will chill the rights of other employees, PERB has typically denied the request for injunctive
relief. In such cases, it is assumed that the remedies available pursuant to PERB
3

Regulation 32325, such as reinstatement and back pay, will make the aggrieved party whole
within the limits of PERB’s jurisdiction at the conclusion of the administrative proceedings. 5
PERB’s injunctive relief authority, when invoked by employees or employee
organizations, serves two purposes: to protect the integrity of the collective bargaining
process, including the right of employees to choose their representative organizations and the
right of employee organizations to organize in the workplace; and to preserve the effectiveness
of PERB’s remedial power while the merits of the case are being decided by an AU.
(Frank/ v. HTH Corp. (2011) 650 F.3d 1334, 1355; San Joaquin.) Like the authority vested in
the National Labor Relations Board in section 100), PERB’s injunctive relief authority seeks
to vindicate the public interest, rather than purely private rights. (Miller v. California Pacific
Medical Center (1994) 19 F.3d 449, 455, [overruled on other grounds, Winter v. National
Resources Defense Council (2008) 555 U.S. 7].) In this way, the injunctive relief available
through collective bargaining statutes differs from traditional injunctive relief available
through the civil judicial system.
Included in the assessment of whether injunctive relief is "just and proper" is whether
the alleged unfair practice will cause irreparable harm to the requesting party. If the wrong can
be remedied by the Board’s order to make the injured party whole, including the restoration of
’ PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
PERB does not have the authority to award punitive damages or compensatory
damages for emotional pain and suffering. (Mark Twain Union Elementary School District
(2003) PERB Decision No. 1548 (Mark Twain); State of California (Secretary of State) (1990)
PERB Decision No. 812-S (Secretary of State).) However, PERB may have concurrent
jurisdiction with the courts in claims that implicate both unfair practices and claims for breach
of contract or libel. (Fresno Unified School Dist, v. National Education Assn. (1981) 125
Cal.App.3d 259; Rim of the World Unified School District (1986) PERB Order Ad-161.)
Whether parties in such cases of concurrent jurisdiction could seek injunctive relief from the
courts where PERB is unable to provide a full and effective remedy is a question that must be
considered on a case-by-case basis.
rd

back pay and benefits and reinstatement, and if there is no other probable harm to the public
interest, to the collective right to organize, or to negotiate in good faith, or to PERB’s ability to
fashion an effective remedy at the conclusion of administrative proceedings, we have generally
concluded that there is no irreparable harm.
LIU’S REQUEST FOR INJUNCTIVE RELIEF
In this case, PERB has issued a complaint on Liu’s behalf alleging that CSU violated
HEERA section 3571(a) by denying him tenure and promotion, restricting him from campus
grounds, suspending him and ultimately terminating him from employment in retaliation for
filing numerous grievances, participating in a grievance meeting and filing an unfair practice
charge. As stated earlier, because PERB has issued a complaint on his unfair practice charge,
we assume for purposes of this discussion, that Liu has established reasonable cause to believe
an unfair practice has occurred. The remaining question is whether injunctive relief is "just
and proper." We conclude that injunctive relief would not be just and proper in this case.
Liu requests injunctive relief and an order from PERB directing CSUEB to immediately
reinstate him to his position as assistant professor with full rights and benefits of that position,
and to refrain from imposing "further police actions" against him. He claims that without this
relief he has and will continue to suffer irreparable damage to his family life, and that an
ultimate back pay award could not compensate him for the pain and suffering in his personal
life, which includes depression and potentially deteriorating health. Liu has alleged he
suffered additional irreparable harm to his reputation because he is prevented from accessing
"necessary resources for research," which prevents him from publishing academic articles,
which in turn, harms his career as an academic. At this stage in the lengthy proceedings,
according to Liu, he has exhausted his savings and "cannot survive financial hardship."
5

Much of what Liu describes as a basis for his claim of irreparable harm is in the nature
of emotional pain and suffering and harm to reputational interests. Because PERB does not
have the authority to grant such relief, either prospectively or at the conclusion of its
administrative proceedings, injunctive relief seeking such a remedy would not be "just and
proper." (Regents of the University of California (2010) PERB Decision No. 2094-H [no
authority to award punitive damages or damages for emotional pain and suffering];
Mark Twain; Secretary of State.)
The other types of injury Liu alleges lost wages and loss of health benefits are the
type of economic harm that can be remedied at the conclusion of the administrative
proceedings in the event Liu’s unfair practice complaint is successful. Although Liu stated a
prima facie case for retaliation for engaging in the protected activity of filing grievances and
an unfair practice charge, there is no allegation that his protected activity was critical to some
other collective action such as a union organizing drive during a representation election. Nor
is there any allegation or evidence that CSUEB’s alleged retaliation against Liu was likely to
chill the rights of other employees to engage in protected activity.
For these reasons, injunctive relief is not necessary to preserve a status quo or to assure
that an ultimate remedy will be effective. We recognize that dismissal from employment is
likely to create financial hardship, but that alone is not a criterion for seeking injunctive relief.
Wenjiu Liu’s fifth request for injunctive relief in Case No. SF-CE-995-H is DENIED
WITH PREJUDICE.
*9141W., V	111
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