Regents of the University of California (PERB 1854H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COALITION OF UNIVERSITY EMPLOYEES,
LOCAL 6,
Charging Party, Case No. SF-CE-773-H
V. PERB DecisionNo. 1854-H
REGENTS OF THE UNIVERSITY OF August 29, 2006
CALIFORNIA,
Respondent.

Appearance: Terrence Ryan, Representative, for Coalition of University Employees, Local 6.
Before Shek, McKeag and Neuwald, Members.
DECISION

NEUWALD, Member: This case comes before the Public Employment Relations
(PERB or Board) on appeal by the Coalition of University Employees, Local 6 (CUE) of a
Board agent's dismissal (attached) ofan unfair practice charge. The charge alleged that the
Regents of the University of California violated the Higher Education Employer-Employee
Relations Act (HEERA)' by removing union flyers. CUE alleged that this conduct constituted
a violation of HEERA section 3560.

' The Board has reviewed the unfair practice charge, the amended unfair practice charge,
the warning and dismissal letters, and the appeal of the dismissal. The Board finds the Board
agent's dismissal to be free of prejudicial error and adopts it as a decision of the Board itself.

On appeal, CUE presents new charge allegations and new supporting evidence that

were not previously presented that were known to CUE when it filed its unfair practice charge

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

and amended unfair practice charge. PERB Regulation 32635(b)2 precludes a charging party
from raising new allegations or new supporting evidence on appeal without good cause. 	CUE
has failed to demonstrate good cause for the presentation of new allegations and/or supporting
evidence on appeal, therefore it is not being considered.
ORDER
The unfair practice charge in Case No. SF-CE-773-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Shek and McKeag joined in this Decision.
PERB	PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
22

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax:(510)622-1027
February 6, 2006
Terrence Ryan, Union Representative
Coalition of University Employees, Local 6
1659 Divisadero St., #2
San Francisco, CA 94115-3009
Re: 	Coalition of University Employees, Local 6 v. Regents of the University of California
Unfair Practice Charge No. SF-CE-773-H; First Amended Charge
DISMISSAL LETTER
Dear Mr. Ryan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 23, 2005. The Coalition of University Employees,
Local 6 alleges that the Regents of the University of California violated the Higher Education
Employer-Employee Relations Act (HEERA)1 by removing union flyers.
I indicated to you in my attached letter dated January 12, 2006, 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 January 19, 2006, the charge would be
dismissed. I later extended this deadline to January 26, 2006 and then to February 2, 2006.
On January 31, 2006, I received a first amended charge. The first amended charge states in its
entirety as follows:
In fact, much other material was posted in the same areas that it
was represented as being banned by the Fire Marshall. However,
only union material was removed. Many union members have
seen these left posted when security has removed union flyers.
A recitation of the relevant facts are as follows. CUE and the University are parties to a
collective bargaining agreement that expired on September 30, 2004. 	With regard to the
posting of union flyers, Article 1 provides as follows:
HEERA 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.

SF-CE-773-H
February 6, 2006
Page 2
CUE shall have access to general-purpose bulletin boards and
shall have the use of those bulletin boards. Any materials posted
must be dated and initialed by the union representative
responsible for the posting and a copy of all materials posted
must be provided to the appropriate University representative at
the location at the time of posting. At those locations where the
University is responsible for posting material on bulletin boards,
the University will post copies of the CUE-provided material
within one business day.
On September 13, 2005, CUE representatives posted flyers near the elevators at UCSF's
Mount Zion Campus. These notices were not on general-purpose bulletin boards. On that
same date, UCSF Security personnel removed the union's flyers, indicating that the removal
was done at the direction of the San Francisco Fire Marshall.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie violation of the HEERA, for the reasons provided below.
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
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 if HEERA 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.
Herein, the parties bargained over union access rights, including the posting of union notices.
As the union placed notices in an area beyond the bargained for area, the University's removal
was not unlawful. 	Charging Party appears to miss the point in arguing that other organizations
are permitted to post near the elevators. 	Charging Party and the University have bargained for
specific posting rights. 	As the union flyers were posted in an area outside of that agreed upon
by the parties, the University conduct in removing the flyers does not constitute a violation of
the HEERA.

SF-CE-773-H
February 6, 2006
Page 3
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
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
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-773-H
February 6, 2006
Page 4
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
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,
Kristin L. Rosi
Regional Attorney
Attachment
cc: Therese Leone
Judy Frates

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax:(510)622-1027	PERB
January 12, 2006
Terrence Ryan, Union Representative
Coalition of University Employees, Local 6
1659 Divisadero St., #2
San Francisco, CA 94115-3009
Re: 	Coalition of University Employees, Local 6 v. Regents of the University of California
Unfair Practice Charge No. SF-CE-773-H
WARNING LETTER
Dear Mr. Ryan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 23, 2005. The Coalition of University Employees,
Local 6 alleges that the Regents of the University of California violated the Higher Education
Employer-Employee Relations Act (HEERA) 	by removing union flyers.
Investigation of the charge revealed the following. 	CUE is the exclusive bargaining
representative for the University's Clerical and Allied Services Units. 	CUE and the University
are parties to a collective bargaining agreement that expired on September 30, 2004. With
regard the positing of union flyers, Article 1 provides as follows:
CUE shall have access to general-purpose bulletin boards and
shall have the use of those bulletin boards. Any materials posted
must be dated and initialed by the union representative
responsible for the posting and a copy of all materials posted
must be provided to the appropriate University representative at
the location at the time of posting. At those locations where the
University is responsible for posting material on bulletin boards,
the University will post copies of the CUE-provided material
within one business day.
On September 13, 2005, CUE representatives posted flyers near the elevators at UCSF's
Mount Zion Campus. These notices were not on general-purpose bulletin boards. On that
same date, UCSF Security personnel removed the union's flyers, indicating that the removal
was done at the direction of the San Francisco Fire Marshall.
HEERA 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.

SF-CE-773-H
January 12, 2006
Page 2
Based upon the above stated facts, the charge as presently written, fails to state a prima facie
violation of the HEERA, for the reasons provided below.
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
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 if HEERA 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.
Herein, the parties bargained over union access rights, including the posting of union notices.
As the union placed notices in an area beyond the bargained for area, the University's removal
was not unlawful. Moreover, the University's removal of the notices was done at the behest of
the Fire Marshall who indicated that no notices, union or otherwise, may be posted near
-
medical center elevators. As such, this charge fails to state a prima facie violation of the
HEERA.
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 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 January 18, 	shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi

SF-CE-773-H
January 12, 2006
Page 3

Regional Attorney

KLR