Trustees of the California State University (San Bernardino) (PERB 1609H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MAURICE WEBB,
Charging Party, Case No. LA-CE-780-H

Vv. PERB Decision No. 1609-H

TRUSTEES OF THE CALIFORNIA STATE April 2, 2004

UNIVERSITY (SAN BERNARDINO),

Respondent.

Appearance: Maurice Webb, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Maurice Webb (Webb) of a Board agent’s dismissal (attached) of his
unfair practice charge. The charge alleged that the Trustees of the California State University
(San Bernardino) violated the Higher Education Employer-Employee Relations Act (HEERA)'
by retaliating against Webb for filing a grievance and by denying Webb a fair grievance
hearing.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters and Webb’s appeal. The Board finds the warning and
dismissal letters to be free of prejudicial error and adopts them as the decision of the Board

itself.

‘HEERA is codified at Government Code section 3560 et seq.

ORDER
The unfair practice charge in Case No. LA-CE-780-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA 	OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8384
Fax: (916)327-6377
December 18, 2003
Maurice Webb
6601 Victoria Avenue, Apt. H-246
Highland, CA 92346
·,,~,
Re: 	Maurice Webb v. Trustees
of
the California State University (San Bernardino)
Unfair Practice Charge No. LA-CE-780-H
DISMISSAL LETTER
Dear Mr. Webb:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 22, 2003. Therein you allege that the Trustees
of
the
California State University (San Bernardino) violated the Higher Education Employer-
Employee Relations Act (HEERA) 1 by retaliating against you and by denying you a fair
grievance pursuant to Article 10, section 10.4
of
the parties' agreement.
I indicated to you in my attached letter dated December 2, 2003, 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 December 12, 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 December 2, 2003 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
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 1001 et seq.

LA-CE-780-H
December 18, 2003
Page 2
C
considered "filed" when received by facsimile transmission before the close
of
business
on
the
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 oftime, 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 	of
the
request upon each party. (Regulation 32132.)

LA-CE-780-H,
December,18,,2003,
Page,3,
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,
General,Counsel,
By
Regional,Attorney,
m,
Marie,A.,Nakamura,
Attachment,
cc:, Elisabeth,Sheh,Walter,

_s_T_A_T_E_O_F_C_A_L_I_F_O_R_N_IA
____
......
(_-
______________
~t·
.OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office1031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
December 2, 2003
Maurice Webb
6601 Victoria Avenue, Apt. H-246
Highland, CA 92346
Re: 	Maurice Webb
v.
Trustees
of
the California State University (San Bernardino)
Unfair Practice Charge No. LA-CE-780-H
WARNING LETTER
Dear Mr. Webb:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 22, 2003. Therein you allege that the Trustees
of
the
California State University (San Bernardino) violated the Higher Education Employer-
Employee Relations Act (HEERA) 1 by retaliating against you and by denying you a fair
grievance pursuant to Article 10, section 10.4
of
the parties' agreement.
Facts
You are a Lecturer in the School
of
Social and Behavioral Sciences at CSU San Bernardino
and are represented by the California Faculty Association. For the 2002-2003 academic year
you received a 94% approval rating in the Student Evaluation
of
Teaching Effectiveness.
On May 30, 2002, you filed a "careful consideration" grievance alleging a violation
of
Article
12, section 12.7
of
the Memorandum
of
Understanding between CFA and CSU.2 A copy
of
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 Article 12, section 12.7 provides:
Each department or equivalent unit shall maintain a list
of
temporary employees who have been evaluated by the department
or equivalent unit.
If
such an employee applies for a position in
that department or equivalent unit or applicant pool for that
department or equivalent unit, the faculty unit employee's
previous periodic evaluations and his/her application shall receive
careful consideration.
If
a temporary employee applies for a
subsequent appointment and does not receive one, his/her right to
file a grievance shall be limited to allegations of a failure to give
careful consideration. Such a grievance would constitute an

(
LA-CE-780-H
December 2, 2003
Page 2
grievance was not provided with the charge. Article 10 contains the parties' grievance
procedure and provides in part for Level I, Campus Level Review and Level II, System Level
Review. Level II is an appeal of the Level I decision and is filed with the Office of the
Chancellor. If the grievance is not settled at Level II, it may be appealed to arbitration. 	On
March 12, 2003, the Office of the Chancellor denied your grievance at Level II, and on April
30, 2003, California Faculty Association Administrative Assistant for Representation Dorothy
Poole sent a letter to Assistant Vice Chancellor Human Resources Sam Strafaci withdrawing
the demand for arbitration of your grievance. 3
On June 25, 2003, the Dean of the College of Social and Behavioral Sciences, John A. Conley,
sent you a memorandum regarding "Course Enrollments in Social Science 306 for Spring
2003." The memorandum states in pertinent part:
As you know the enrollment cap for SSCI 306 courses is 26
students. Because you have had a pattern of over enrollment in
SSCI 306 courses in the past, Associate Dean Jenny Zorn and I
have informed you verbally on numerous occasions to closely
manage drops and adds for your courses in order to keep your
enrollment at the maximum of 26 students. In addition, I have
sent you memoranda (9/17/2002, 1/28/2003, 4/8/2003) reminding
you of this maximum. You continue to enroll students beyond
that maximum in direct violation of our instructions to you. If
you continue to fail to comply with directions from Associate
Dean Jenny Zorn and myselfregarding maximum enrollment of
these courses, I will have not choice but to place a letter of
reprimand in your personnel action file.
I called your office on November 19, 24 and December 1, 2003. Each time the phone rang
several times and there was no answer.
Discussion
You allege that you were denied a fair grievance process because "Associate Dean Jenny Zorn
failed to report the facts of my case in an accurate and timely manner." You also allege that
CSU retaliated against you for filing the May 2002 grievance.
PERB Regulation 326 l 5(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
allegation of a contractual violation and would not be a "Faculty
Status Matter" as defined in Article 10 of this Agreement.
3 A copy of this letter was provided by Respondent.

LA-CE-780-H
December
2,
2003
Page 3
(
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.)
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.) The 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.)
First, you allege that CSU denied you a fair grievance when "Associate Dean Jenny Zorn failed
to report the facts
of
my case in an accurate and timely manner. "4 It is not clear what type
of
Government Code section 3571 sets forth unfair practices by an employer under
HEE RA and provides:
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.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
( c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
( d) Dominate or interfere with the formation or administration
ofany employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another. However, subject to rules
and regulations adopted by the board pursuant to Section 3563,
an employer shall not be prohibited from permitting employees to
engage in meeting and conferring or consulting during working
hours without loss of pay or benefits.
( e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).

LA-CE-780-H
December 2, 2003
Page 4
(
an unfair practice violation you allege by this statement. You do not provide an explanation in
the charge as to the "who, what, when, where and how"
of
this allegation.
	If
the grievance
referred
to
in this allegation was the one filed in May 2002, then the allegation is outside the
statute
of
limitations. This charge was filed on August 22, 2003. As such only conduct
underlying the charge that occurred on or after February 21, 2003 falls within the six month
statute
of
limitations .
.It
is incumbent upon you,
as
Charging Party, to demonstrate that this
allegation is timely filed and the "who, what, when, where and how"
of
this allegation.
Second, to demonstrate a discrimination/retaliation violation pursuant to Government Code
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.)
(f) Consult with any academic, professional, or staff advisory
group on any matter within the scope of representation for
employees who are represented by an exclusive representative, or
for whom an employee organization has filed a request for
recognition or certification as an exclusive representative until
such time as the request is withdrawn or an election has been held
in which "no representative" received a majority of the votes cast.
This subdivision is not intended to diminish the prohibition of
unfair practices contained in subdivision (d). For the purposes of
this subdivision, the term "academic" shall not be deemed to
include the academic senates.

LA-CE-780-H
December 2, 2003
Page 5
(
Here, you demonstrate some but not all of the requirement of a retaliation violation. You
exercised rights under EERA when you filed the grievance in May 2002 and when you
appealed through the grievance procedure through March 2003, and then withdrew the
grievance in April 2003. The University took adverse action against you by issuing the letter
of June 25, 2003. However, you have not demonstrated sufficient nexus between the protected
activity and the adverse action. While there is temporal proximity between the withdraw! of
your grievance in late April 2003, and the issuance of the letter in June, you have not
demonstrated any of the other indicia of nexus above. You must provide other indicia of nexus
to demonstrate a retaliation violation.
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 addition.al 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
corner 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. If I do not receive an
amended charge or withdrawal from you before December 12, 2003, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Regional Attorney
MAN