Trustees of the California State University (PERB 2384H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA ST ATE UNIVERSITY
EMPLOYEES UNION, SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 2579
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STA TE
UNIVERSITY,
Respondent.
Case No. LA-CE-1166-H
PERB Decision No. 2384-H
June 30, 2014
Appearances: Brian Young, Lead Labor Relations Representative, for California State
University Employees Union, Service Employees International Union Local 2579; Daniel A.
Ojeda, University Counsel, for Trustees of the California State University.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California State University Employees Union, Service Employees
International Union Local 2579 (CSUEU) from the PERB Office of the General Counsel's
dismissal of its unfair practice charge. The charge alleged that the Trustees of the California
State University (University) violated section 3571, subdivisions (a), (b) and (c), and
section 3580.5, subdivision (a), of the Higher Education Employer-Employee Relations Act
(HEERA), 1 by refusing to provide information pertaining to the University's investigation of a
complaint by one CSUEU bargaining unit member against another; by destroying records
relevant to a negotiated complaint resolution process; by unilaterally changing its policy for
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

maintaining records pertaining to employee complaints; and, by allowing a supervisor to
represent a non-supervisory employee in a collectively-bargained complaint proceeding. The
Office of the General Counsel dismissed the charge for failure to state a prima facie case as to
each of these theories and for lack of jurisdiction as to the allegation that the University violated
HEERA section 3580.5.
On appeal, CSUEU argues that it lacked notice of any perceived deficiencies in the
charge before dismissal, and that, in dismissing the charge, the Office of the General Counsel
acted contrary to PERB's case processing requirements and principles of due process by
resolving various factual and legal issues. CSUEU urges the Board to reverse the dismissal
and issue a complaint. The University argues that CSUEU's charge fails to state a prima facie
case, that the Office of the General Counsel's warning letter was properly served and that
CSUEU therefore had sufficient notice of the deficiencies in its charge before dismissal, that
the substantive issues raised in CSUEU's appeal are without merit, and that the dismissal
should therefore be affirmed.
The Board has reviewed the entire record in this matter, including CSUEU's initial
charge, its first and second amended charges, the University's position statements, and the
Office of the General Counsel's warning and dismissal letters. In light of applicable law,2 we
have determined that the Office of the General Counsel failed to consider the factual
allegations and legal theories presented in the operative second amended charge, thereby
depriving CSUEU of notice and opportunity to correct any deficiencies before dismissal, as
In reviewing the dismissal of a charge, the Board assumes the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
(San Juan) [before January 1, 1978, PERB was known as the Educational Employment
Relations Board or EERB]; Trustees of the California State University (Sonoma) (2005) PERB
Decision No. 1755 (CSU Sonoma).)
2

required by our regulations. (PERB Reg. 32620, subd. (d).)3 We therefore reverse the
dismissal and remand the matter to the Office
of
the General Counsel for further investigation
of
CSUEU' s allegation that the University unilaterally changed its records retention policy
pertaining to employee complaints, in accordance with the discussion below.4
Contrary to the conclusion reached by the Office
of
the General Counsel, we have
determined that PERB has jurisdiction to consider alleged violations
of
HEERA
section 3580.5. We have also determined that CSUEU has stated a viable legal theory and
alleged sufficient facts to state a prima facie violation
of
that section
of
HEERA and/or that the
University interfered with protected employee rights, in violation
of
HEERA section 3 571,
subdivision (a), by allowing a supervisor to represent a nonsupervisory employee in
collectively-bargained complaint proceedings. In such circumstances, the proper course for
the Board on review
of
a dismissal is to reverse and remand for issuance
of
a complaint, so that
the novel issues may be decided upon a full evidentiary record and with the benefit
of
briefing
by the parties. (City
of
Pinole (2012) PERB Decision No. 2288-M, p. 12; Jurupa Unified
School District (2012) PERB Decision No. 2283 (Jurupa), p. 18.) We therefore direct the
Office
of
the General Counsel to issue a complaint as to the University's alleged violation
of
section 3580.5, subdivision (a), both as a stand-alone allegation and in conjunction with
section 3571, subdivision (a).
To promote consistency and administrative efficiency, we further direct the Office
of
the General Counsel to refrain from issuing the above-described complaint until after it
3 PERB Regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
4 As discussed below, because CSUEU's allegation that the University failed and
refused to provide information pertaining to a bargaining-unit employee's complaint was
withdrawn before the charge was dismissed, we need not address that portion of CSUEU' s
appeal or the Office of the General Counsel's investigation of this allegation.
3

has completed its investigation
of
the other allegations included in the charge. HEERA
sections 3563.2 and 3563.3, and PERB Regulation 32635 recognize the broad authority
of
the
Board to investigate and remedy allegations
of
unfair practices. As part
of
that authority, the
Board may sever, consolidate, expedite, place in abeyance, or otherwise alter the timeline(s) or
sequence in which it investigates some or all
of
the allegations in a charge to promote
uniformity in decisions and administrative efficiency. (Mount Diablo Unified School District,
et
al.
(1977) EERB Decision No. 44
(,'ftvfount
Diablo), p. 2; Washington Teachers Association
(AfcFarland) (1990) PERB Order No. Ad-208; see also Unit Determination for Professional
Scientists and Engineers, Lawrence Livermore National Laboratory,
of
the University
of
California (1983) PERB Decision No. 246b-H (Unit Determination (LLNL)), p. 2 regarding
similar Board discretion to suspend unit determination proceedings for administrative
efficiency.)
In reviewing the dismissal
of
a charge containing multiple, factually distinct
allegations, the Board may direct the issuance
of
a complaint as to some allegations, while
remanding others to the Office
of
the General Counsel for further investigation
of
any factual
or legal issues that were not fully or properly considered before the charge was dismissed.
(Jurupa, supra, PERB Decision No. 2283; California State University, Hayward (1987) PERB
Decision No. 607-H (CSU Hayward); State
of
California (Employment Development
Department) (1985) PERB Decision No. 483-S.) We follow this approach in the present
appeal because, while the Office
of
the General Counsel's investigation
of
the operative
second amended charge was incomplete, we see no reason to require further investigation
of
those issues for which the charging party has already alleged sufficient facts to state a prima
facie case. (Orange Unified School District (2000) PERB Decision No. 1416; Desert Sands
Unified School District (2001) PERB Decision No. 1468.) However, to avoid the unnecessary
4

complication and risk of error that comes with processing different parts of a charge
along separate timelines, and to ensure that all of the factual and legal issues in the
charge are given full and fair consideration (see, e.g., State of California (Departments of
Personnel Administration, Mental Health and Developmental Services) (1985) PERB Decision
No. 542-S), the best course is for the Office of the General Counsel, after completing its
investigation, to issue one complaint that includes all matters in the charge deemed appropriate
for hearing.
FACTUAL5 AND PROCEDURAL HISTORY
CSUEU is the exclusive representative of employees in several bargaining units at the
University, including clerical and administrative support employees in bargaining unit 7, and
technical and professional employees in bargaining unit 9. Muneca Williams (Williams) and
Tonya Belcher (Belcher) are University employees and members of bargaining units 7 and 9,
respectively. They work in the Information Technology Department at the University's
Dominguez Hills campus. Belcher is Williams' "lead" person.
Ronald Bergmann (Bergmann) is the supervising administrator (also referred to as an
"MPP") of both Williams and Belcher. CSUEU alleges that Bergmann is a "supervisory
employee" within the meaning of HEERA, which includes:
Because this matter comes before the Board following dismissal without a hearing, we
are not concerned here with making findings of fact or weighing the parties' conflicting
allegations. (Eastside Union School District (1984) PERB Decision No. 466 (Eastside).)
Rather, at this stage of the proceedings, we treat CSUEU's factual allegations as true and
consider them in the light most favorable to them. (San Juan, supra, EERB Decision No. 12;
Golden Plains Unified School District (2002) PERB Decision No. 1489 (Golden Plains).)
Pursuant to PERB Regulation 32620(c), the Office of the General Counsel may
consider additional information provided by the respondent, when such additional facts are
provided under oath, complement without contradicting the facts alleged in the charge, and are
undisputed by the charging party. (Service Employees International Union #790 (Adza) (2004)
PERB Decision No. 1632-M; Lake Tahoe Unified School District (1993) PERB Decision
No. 994; Riverside Unified School District (1986) PERB Decision No. 562a (Riverside).)
5

any individual, regardless
of
the job description or title, having authority,
in
the interest
of
the employer to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or effectively
to recommend such action, if,
in
connection with the foregoing, the
exercise
of
such authority
is
not
of
a merely routine or clerical nature, but
requires the use
of
independent judgment.
(HEERA, § 3580.3.) Specifically, CSUEU alleges that Bergmann "has the authority to hire, dismiss,
demote, promote, and discipline" both Williams and Belcher.
The University does not dispute Bergmann's status as a supervisor. A position statement
filed by the University in response to the present charge includes a memo from the University's
assistant vice president
of
human resources, dated August 23, 2011, which confirms Bergmann's
authority to perform various "supervisory" functions within the meaning
of
the statute. These
include the authority to assign and direct work performed by Williams and Belcher, to deal with
any deficiencies in Belcher's and/or Williams' work performance through a process called the
"performance management system," to devise, implement and enforce procedures governing
Williams' and Belcher's work processes, including procedures for monitoring and correcting
employee attendance, and to determine the forms
of
corrective action necessary to improve the
"interpersonal skills"
of
employees under his supervision.
The Collectively-Bargained and University Dispute Resolution Procedures
At all times relevant to this appeal, CSUEU and the University have been parties to a
collective bargaining agreement (CBA) that includes a grievance procedure ending in binding
arbitration. The grievance and arbitration procedures are set forth in Article 7 (Grievance
Procedure)
of
the CBA. Article 8
of
the CBA (Complaint Procedure) also includes a complaint
resolution procedure for disputes in which CSUEU or a CSUEU-represented employee alleges
"a violation, misapplication, or misinterpretation of a specific term(s) [sic] of a CSU policy
governing working conditions or CSU work rule." Unlike disputes that are subject to
Article 7, disputes covered by the Article 8 complaint procedure may, by mutual agreement,
6

end in mediation, but are not subject to binding arbitration. Both the Article 7 grievance
procedure and Article 8 complaint procedure include various "steps" or levels
of
appeal and a
dispute filed under one process may be transferred to the other at any time before it reaches the
second step
of
the process in which it was initiated.
By Executive Order No. 928 (EO 928), the University also has a system-wide
complaint procedure for claims arising under Executive Order No. 927 (EO 927), which is the
University's system-wide discrimination, harassment and/or retaliation policy. By its terms,
the EO 928 complaint procedure is available to employees who are not eligible to file a
discrimination, harassment or retaliation complaint or grievance under the terms
of
a
CBA
or
whose CBA incorporates the EO 928 process for such purposes.
CSUEU alleges that Articles 8 (Complaint Procedure) and 25 (Non-Discrimination)
of
the CBA incorporate the EO 928 complaint process for resolving non-arbitrable disputes
involving allegations
of
discrimination and/or harassment. Section 8.34
of
Article 8 includes
language which clearly contemplates that allegations
of
sexual harassment and discrimination
may be processed under the Article 8 complaint procedure. 6 Although the University
characterizes the EO 928 complaint process as "non-contractual," its position statements do not
specifically deny CSUEU's allegation that the parties have agreed to incorporate the EO 928
complaint process into the CBA and, for the purpose
of
this appeal, we accept CSUEU's
allegation that the CBA incorporates the EO 928 process for non-arbitrable disputes involving
allegations
of
discrimination and/or harassment.7
6 Section 8.34
of
the Article 8 complaint procedure requires that "all settlements related
to sexual harassment and discrimination complaints shall be confidential."
7 The parties' positions on this issue are not entirely clear. An exhibit attached to
CSUEU's first amended charge, and incorporated by reference into the second amended
charge, includes University correspondence which asserts that, pursuant to a "Side Letter of
7

Both the Article 8 and the EO 928 complaint procedures provide employees with the
right to representation at each step
of
the process, including at any meetings convened to
investigate and resolve the dispute informally. Under Article 8, the representative "shall be a
Union Representative or an employee who, at the complainant's request, may be present at all
levels through Level III." (Emphasis added.)8 Section 8.35
of
Article 8 further provides that
"[a]n employee" may present a complaint and have the complaint adjusted "without the
intervention
of
the Union," provided that the adjustment "is not inconsistent with the terms
of
a
written agreement then in effect," that the University "will not agree to a resolution
of
a
complaint until [CSUEU] has received a copy
of
the complaint and the proposed resolution,"
Agreement," complaints brought under the University's EO 928 process "are not grievable
under Articles 7 and 8
of
the Contract." The document also asserts that the CBA "does not
cover procedures
of
representation under [EO] 928." These passages may be read as a denial
by the University that the parties have agreed to incorporate the EO 928 complaint process into
the CBA. However, other than these passages in the CSUEU's exhibits, the parties' pleadings
do not mention or discuss the existence
of
a side letter governing the relationship between the
EO 928 complaint process and the CBA. Nor was any side letter or similar document
produced as part
of
the Office
of
the General Counsel's investigation
of
the charge. Although
a charge must be dismissed when the respondent can establish an affirmative defense as a
matter
oflaw
based on undisputed facts (Metropolitan Water District
of
Southern California
(2009) PERB Decision No. 2055-M, p. 4, fn. 4), including in instances where the charging
party undermines its own case by providing documents that clearly demonstrate that material
allegations are false (Los Angeles Community College District (2000) PERB Decision
No. 1377, adopting dismissal letter at p. 3, fn. 4), here there appears to be a genuine factual
dispute as to whether the parties have agreed to incorporate the EO 928 complaint process into
the CBA. Because CSUEU's allegation that the EO 928 process is incorporated into the CBA
is not positively contradicted by undisputed facts, at this stage
of
the proceedings we must
accept it as true (Sacramento City Unified School District (2010) PERB Decision No. 2129,
pp. 5-6, 7, 13; CSU Sonoma, supra, PERB Decision No. 1755-H, p. 6) and allow the matter to
proceed to a hearing where the parties may present their respective evidence and arguments as
to the existence or meaning of any disputed terms in their agreement. (Long Beach Community
College District (2000) PERB Decision No. 1378, pp. 5-6; Riverside, supra, PERB Decision
No. 562a, pp. 5-6, 11-12, and 13-14.)
8 Article 8 does not define the term "employee" and CSUEU has not provided the
CBA's "recognition clause" or similar language to indicate whether, within the context of the
CBA, the term refers specifically to bargaining-unit employees, or any University employees.
8

and, that CSUEU has had the opportunity to file a response to any proposed resolution
of
a
complaint.9
Similarly, the EO 928 complaint process guarantees the "claimant," or "complainant,"
i.e., the employee who has made an informal complaint or who is eligible to make a formal
complaint, the right to representation at all steps
of
the informal and formal options within the
complaint resolution process. The "respondent," i.e., the employee who is the subject
of
the
EO 928 complaint, is also permitted
to
have a representative in instances where,
if
the
allegations were true, the accused employee could reasonably anticipate discipline.
At the option
of
the complainant, the Article 8 complaint procedure may be initiated
through either an informal resolution process, or through the formal (\\-Titten) process. 	The
informal option involves a meeting with, and verbal response from, the "immediate non-
bargaining unit supervisor,"
if
the complainant is an employee.
If
an informal complaint is not
satisfactorily resolved, or
if
the complainant elects to use the formal process, the complaint is
initiated at Level I
of
the process by completing and submitting to the appropriate University
administrator a pre-printed form. The form shall be "agreed to by the parties and provided by
When referring to an employee's "right to representation," the parties' pleadings and
other correspondence do not always indicate whether the right referred to is contractual or
statutory. However, the "right to representation" provided for by Article 8 is, in all material
respects, identical to the language
of
HEERA section 3567 and we therefore find it
unnecessary to resolve this issue. HEERA section 3567 reads as follows:
Any employee or group
of
employees may at any time, either
individually or through a representative
of
their own choosing,
present grievances to the employer and have such grievances
adjusted, without the intervention
of
the exclusive representative;
provided, the adjustment is reached prior to arbitration pursuant
to Section 3589, and the adjustment is not inconsistent with the
terms of a written memorandum then in effect. The employer ·
shall not agree to resolution of the grievance until the exclusive
representative has received a copy of the grievance and the pro-
posed resolution, and has been given the opportunity to file a
response.
9

CSUEU" to the complainant. The form shall include various categories
of
information,
including "the name and telephone number
of
the representative,
if
any," and "the name and
address
of
the Union,
if
the representative is acting as an agent
of
the Union.'' (Emphasis
added.)
Williams' Complaint Against Belcher
On or about July 27, 2011, Williams initiated an EO 928 complaint with the University,
which alleged that Belcher had harassed Williams and created a hostile work environment. It
is undisputed that the University processed Williams' complaint in accordance with the
provisions
of
the EO 928 process. On July 28, 2011, Assistant Vice President
of
Human
Resources Mark Seigle (Seigle) sent a memorandum to Belcher informing her that she was the
subject
of
an EO 928 complaint alleging hostile work environment/harassment and advising
her
of
the right to union representation for the investigation. Seigle's memorandum
characterized the investigation as "confidential" and stated that Belcher "must not discuss this
investigation with any person who does not have a legitimate business need to know this
information." Specifically, Seigle's memorandum instructed Belcher to "refrain from
discussing this case with your co-workers and immediate supervisors." Despite these
instructions, Seigle' s memorandum indicates that a copy was to be forwarded to Bergmann.
In or about August 2011, Seigle met with Williams to investigate Williams' complaint.
CSUEU alleges that, at Williams' request, Bergmann accompanied and "represented" Williams
at this meeting, in violation ofHEERA section 3580.5. The University denies that Bergman
"represented" Williams and insists that he "did not say a word" during the meeting. However,
the University's position statement asserts that the EO 928 process "allows employees to have
a representative of their choosing present" at such meetings, and that Williams "availed herself
of
this right by asking Bergmann to be there" as a "support person." (Emphasis added.)
10

On or about August 15, 2011, and as part of his investigation into Williams' complaint,
Seigle met with Belcher and a CSUEU representative and posed a series of 18 questions which,
along with Belcher's responses, Seigle wrote down. At the end of the meeting, Seigle took
these hand-written notes with him and did not provide a copy to Belcher or her CSUEU
representative.
On or about August 23, 2011, Seigle notified Belcher in writing that he had concluded
his investigation and determined that there was insufficient evidence to demonstrate "probable
cause" that Belcher had discriminated against or harassed Williams. However, Seigle also
concluded that, in various instances, Belcher had acted "inappropriately" towards Williams.
As a result, Bergmann directed Belcher to attend a workshop to improve her interpersonal
skills. 	Seigle's memorandum encouraged Belcher and Williams "to work with Dr. Bergmann"
to improve their business relationship, to be "civil to each other during working hours," and to
"work together so that you can both do your jobs." It also advised Belcher that, "Any
questions [regarding Belcher's or Williams'] work performance will be dealt with by
Dr. Bergmann through the performance management system." Seigle's August 23, 2011
memorandum indicates that a copy of the document was to be placed in Belcher's personnel
file as a record of the investigation and findings of Williams' complaint against Belcher. 10
Belcher's Complaint Against the University
In response to Seigle's memorandum, Belcher requested that Seigle provide Belcher
with various categories of information, including a copy of the 18 questions posed to Belcher
at the August 15, 2011 meeting along with Seigle's hand-written notes ofBelcher's responses
In response to a complaint filed by Belcher (discussed below), Siegle later determined
that the written findings of his investigation should not be placed in Belcher's personnel file and
stated that they would remain only in the University's investigation file.
11

to those questions. The University has refused to produce this information, asserting that
Seigle destroyed his notes upon concluding the investigation.
On or about September 2, 2011, Belcher filed a complaint against the University under
the Article 8 complaint procedure. Belcher's complaint alleged violations of various
provisions of the CBA, EO 927, EO 928, and HEERA. In substance, it alleged that the
University had violated Belcher's cm1fidentiality by allowing or authorizing Bergmann to
involve himself in Williams' complaint against Belcher, that Bergmann' s attendance in the
EO 928 complaint proceedings on behalf of Williams along with his position as the supervisor
of both Williams and Belcher constituted a conflict of interest, and that Seigle had improperly
destroyed documents pertaining to Williams' complaint against Belcher.
On or about October 12, 2011, Seigle issued the University's first level response to
Belcher's complaint. The University's response denied that Bergmann "advocated" for
Williams during the investigation of her complaint against Belcher. However, it also asserted
that the EO 928 complaint procedure "allow[s] for an employee to choose any representative to
accompany him or her" in EO 928 proceedings, including his or her supervisor, and that,
pursuant to her right to representation, Williams was "entitled in this type of complaint to
select Dr. Bergmann to accompany her to a meeting with the campus administrator."
On January 9, 2012, Belcher appealed her complaint to Level II and an amended
version of the complaint with additional exhibits was filed with the University on January 24,
2012.
On or about February 9, 2012, the University issued its Level II response, signed by
Associate Dean Joanne Zitelli. Like the Level I response, the Level II response denied each of
the allegations of the complaint. Like the University's Level I response, the Level II response
also asserted that, pursuant to Williams' "right to representation," Bergmann agreed to
12

accompany her to the August 15, 2011 meeting at which she initiated her complaint against
Belcher. The February 9, 2012 Level
II
response is the last piece
of
correspondence associated
with Belcher's complaint in the investigative file
of
the Office
of
the General Counsel.
CSUEU's Unfair Practice Charge
On June
1,
2012, CSUEU filed its initial unfair practice charge (UPC)in this case. The
charge alleged that the University had violated section 3571, subdivisions (a),
11
(b)
12
and (c)
13
and section 3580.5
14
of
HEERA, by destroying documents that were necessary and relevant for
processing a complaint on behalf
of
a CS UEU bargaining unit member, and by allowing a
supervisory employee to represent a non-supervisory CSUEU bargaining unit member in
grievance proceedings.
On July 31, 2012, CSUEU filed an amended UPC, which alleged that the University
had violated HEERA section 3571, subdivisions (a) and ( c ), by unilaterally changing its
records retention policies when it destroyed documents that were relevant and necessary for
processing a complaint arising under a collectively-bargained agreement. The amended charge
also reiterated CSUEU's allegation that the University had violated HEERA section 3580.5, by
11
HEERA section 3571, subdivision (a) makes it unlawful for a higher education
employer to "[i]mpose 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."
12 HEERA section 3571, subdivision (b) makes it unlawful for a higher education
employer to deny to an employee organization any rights guaranteed by HEERA.
13
HEERA section 3571, subdivision (c) makes it unlawful for a higher education
employer to "[r]efuse or fail to engage in meeting and conferring with an exclusive
representative."
14
HEERA section 3580.5 states, in pertinent part, that "[s]upervisory employees shall
not participate in the handling of grievances on behalf of nonsupervisory employees."
13

permitting a supervisor to represent a CSUEU bargaining unit member in a contractual
grievance or complaint procedure.
On August
1,
2012, the University submitted a position statement which admitted
various facts alleged in CSUEU's charge, denied others, and denied any wrongdoing.
Specifically, the University admitted that Williams had filed a discrimination .and harassment
complaint against Belcher, pursuant to a complaint resolution procedure authorized by EO 928.
The University further admitted that, at Williams' request, Bergmann, the supervisor
of
both
Williams and Belcher, accompanied Williams to a meeting
of
the University's complaint
resolution procedure, as
"a
support person" and "pursuant to [Williams'] right to
representation." The University's position statement denied that Bergmann conducted or
spoke at the meeting and concluded that Bergmann therefore did not "participate" in the
"handling
of
[a] grievance[] on behalf
of'
Williams, in violation
of
HEERA section 3580.5,
subdivision (a). As an alternative defense, the University asserted that the EO 928 complaint
procedure is "non-contractual" and therefore does not constitute "grievance" proceedings
within the meaning
of
HEERA section 3580.5, subdivision (a).
The University also denied that it had failed and refused to provide information, as
alleged in the charge. Its position statement asserted that, because "neither HEERA nor any
other laws require that the University preserve notes generated during a complaint
investigation for ... later use by the union," the University was authorized to destroy such
records, once it had investigated and determined the merits
of
Williams' complaint.
Additionally, the University argued that it had no duty to produce the requested records,
because they no longer existed at the time of the request.
On August 8, 2012, the University submitted a second position statement, which
responded to the unilateral change allegation included in the first amended UPC. The
14

University's second position statement asserted that CSUEU's first amended UPC failed to
identify any policy or practice requiring the University to retain "documents related to
[employee] complaints," and that "there is no policy that prevents the [U]niversity from
discarding these types
of
records." The University's second position statement asserted that
CSUEU had failed to state a prima facie case
of
a unilateral change, because, to the extent
CSUEU's allegations relied on the existence
of
a CSU records retention policy, such policy is
"clearly within the employer's managerial rights," "outside the scope
of
representation," and
"of
no concern to employees."
On August 31, 2012, CSUEU faxed to PERB what it characterized as a "second
amended charge." The filing consisted
of
the standard UPC form, a one-page "statement," an
attachment, and proof
of
service.
15
The "statement" consisted
of
a series
of
bullet points which
included various changes to be made to the text
of
the statement included \vith CSUEU' s first
amended charge. Specifically, these amendments included withdrawing the allegations
pertaining to CSUEU's failure/refusal to provide information allegation,16 and providing
additional information in support
of
CSUEU' s unilateral change allegation.
The second amended UPC also reiterated, in slightly revised form, CSUEU's allegation
that Bergmann, a supervisor, had unlawfully represented a non-supervisory, bargaining unit
employee in a "contractual complaint procedure." The second amended UPC now alleged that
15
As discussed below, while PERB's file includes only the facsimile version
of
the
second amended UPC, the University does not contend that the document was not properly
served by U.S. Mail, as indicated in the proof
of
service. The University also. filed a second
position statement specifically responding to the second amended UPC, which indicates that
the University did, in fact, receive the document.
16
The first bullet point in the statement
of
the second amended UPC states that CSUEU
"withdraws its reference in paragraph one of the first amended charge regarding right to
information for the grievance or complaint process."
15

this conduct violated HEERA section 3571, subdivision (d), instead of, or in addition to,
section 3580.5.
17
On September 27, 2012, the Office
of
the General Counsel issued a warning letter,
which did not acknowledge or respond to the amendments included in CSUEU's second
amended charge, which was filed with PERB on August 31, 2012 	almost one month before
the warning letter. Instead, the warning letter advised CSUEU that its first amended charge
failed to state a prima facie case for any
of
the theories included in the charge, and that,
if
the
charge was not amended or withdrawn on or before October 9, 2012, it would be dismissed.
In addition to rejecting CSUEU's allegations that the University had failed and refused
to provide information, and that it had unilaterally changed its records retention policy, the
Office
of
the General Counsel also rejected CSUEU's allegation that a University supervisor
had unlawfully represented a non-supervisory, bargaining unit employee in collectively-
bargained grievance or complaint proceedings. Specifically, the warning letter stated that
PERB lacks jurisdiction to consider alleged violations
of
HEERA section 3580.5, and that
CSUEU'sfirst amended charge included insufficient information to demonstrate that
17
HEERA section 3571, subdivision ( d) makes it unlawful for a higher education
employer to "[ d]ominate or interfere with the formation or administration
of
any employee
organization, or contribute financial or other support to it, or in any way encourage employees
to join any organization in preference to another." For PERB's treatment
of
identical language
in the Educational Employment Relations Act (EERA), § 3540 et seq., regarding employer
domination and unlawful assistance to an employee organization, see Redwoods Community
College District (1987) PERB Decision No. 650; and Oak Grove School District (1986) PERB
Decision No. 582 (Oak Grove); see also Redwood'i Community College Distr.
v.
Public
Employment Relations Bd. (1984) 159 Cal.App.3d 617, 623-624 (agency and court
interpretations of one California public-sector labor relations statute are instructive for
interpreting other statutes contain similar or identical language). As discussed below, because
no information was included in CSUEU' s charge that would appear to support a subdivision
(d) violation, and because CSUEU's appeal makes no mention of this theory, we consider this
allegation withdrawn and do not address it as part of the appeal.
16

Bergmann was acting as an agent of the University or with actual or apparent authority at the
time he allegedly attended a complaint meeting on behalf of a bargaining unit employee.
The Office of the General Counsel also concluded that CSUEU' s factual allegations
regarding Bergmann's involvement in the complaint resolution proceedings failed to state a
prima facie case of interference with employee rights, in violation of HEERA section 3 571,
subdivision (a). In this regard, the warning letter repeated its conclusion that the information
provided by CSUEU failed to demonstrate that Bergmann was acting as an agent of the
University or with actual or apparent authority at the time he allegedly attended a complaint
meeting on behalf of a non-supervisory, bargaining unit employee. Although not fully
explained, the Office of the General Counsel also appears to have rejected CSUEU' s
interference allegation, because, according to the warning letter, HEERA does not guarantee
the particular rights which CSUEU contends were interfered with by the supervisor's alleged
conduct.
Because CSUEU did not withdraw or further amend its charge before the October 9,
2012, deadline specified in the warning letter, on October 23, 2012, the Office of the General
Counsel dismissed the charge. The dismissal letter noted that the charge had been amended on
July 31, 2012, but made no reference to the additional amendments included in the second
amended UPC filed on August 31, 2012. The dismissal letter also referenced the same
deficiencies stated in the warning letter but included no additional or different analysis to
address the amendments included in CSUEU's second amended UPC.
On November 8, 2012, CSUEU filed the present appeal. The appeal asserts two general
categories of errors: (1) CSUEU' s representative did not receive the Office of the General
Counsel's warning letter and thus had no notice of deficiencies before the charge was
17

dismissed; and (2) the Office of the General Counsel improperly resolved contested factual and
legal issues against CSUEU.
CSUEU contends, among other things, that it was improper for the Office of the
General Counsel to credit the University's assertion that the EO 928 complaint procedure is
"not contractual" and therefore not subject to HEERA section 3580.5's prohibition against
supervisory employees participating in the "handling of grievances on behalf of non-
supervisory employees." The appeal also asserts that the EO 928 complaint procedure is
incorporated into the parties' CBA by Articles 8 (Complaint Procedure) and 25 (Non-
Discrimination), and that an EO 928 complaint is therefore a "grievance" within the meaning
of HEERA section 3580.5, subdivision (a).
With respect to CSUEU's failure/refusal to provide information allegation, the appeal
asserts that the University "was bound by its previous[ly] published policies and regulations to
maintain records and provide access to employees and representatives." CSUEU also contends
that the Office of the General Counsel was not authorized to accept the University's contrary
factual or legal assertions, namely, that its records retention policy does not cover the category
of information requested, that the University is legally privileged to destroy investigative notes
so long as it does so consistently, and that the University's interpretation and application of its
records retention policy is not within the scope of representation.
DISCUSSION
A. 	Case-Processing Issues and CSUEU's Right to Notice before Dismissal.
CSUEU contends that it did not receive the Office of the General Counsel's warning
letter until after October 23, 2011, when the charge was dismissed, thereby depriving it of
notice and opportunity to correct any perceived deficiencies. The University contends that the
warning letter was correctly addressed and properly served on CSUEU's designated
18

representative, in accordance with PERB Regulation 32140, that CSUEU therefore "had ample
opportunity to present its case
...
by filing not only the original charge but two amendments to
it" (emphasis original), and that
CSUEU's
"conclusory and unsubstantiated" claim that it never
received the warning letter provides no basis for relief from the dismissal.
PERB Regulation 32620, subdivision (d), requires the investigating Board agent to
"advise the charging party in writing
of
any deficiencies in the charge in a warning letter,
unless otherwise agreed by the Board agent and the charging party, prior to dismissal
of
any
allegations contained in the charge." Pursuant to this regulation, the warning letter must
"identify the facts obtained from the charge or any response to the charge which reveal a
deficiency in the charge" and a dismissal must likewise identify, in writing, the deficiencies in
the charging party's allegations that form the basis for the decision to dismiss.
PERB Regulation 32621 permits the charging party to amend its charge at any time
before the Board agent issues or refuses to issue a complaint. An amended charge must
meet all
of
the procedural requirements
of
an original charge, as specified in PERB
Regulation 3 2615. It must include, among other things, a "clear and concise statement
of
the
facts and conduct alleged to constitute an unfair practice." Additionally, it "must contain all
allegations on which the charging party relies." (PERB Reg. 32621.) Our regulations place no
limit on the number
of
times a party may amend a charge before a warning letter issues or
before the charge is dismissed. New allegations included in an amended charge may not be
dismissed merely because they are not found within the original charge. ( California State
University (1990) PERB Decision No. 853-H (CSU), p. 7.)
In the present case, CSUEU filed a first amended UPC on July 31, 2011, and PERB's
file indicates that the second amended UPC was transmitted to PERB by facsimile on
August 31, 2012. The facsimile transmittal included proof of service and the University does
19

not contend that it was not properly served with the document. Although PERB's files include
only the fax copy
of
the document, and thus give no indication that the original document was
received by mail or private delivery service, PERB's regulations state that a document is
considered "filed" with the agency "when received during a regular PERB business day by
facsimile transmission at the appropriate PERB office together with a Facsimile Transmission
Cover Sheet," and when the party filing the document by facsimile also deposits the document,
with proof
of
service, in the U.S. Mail or private delivery service. (PERB Reg. 32135,
subds. (b ), (c
).
) Because CSUEU complied with the requirements for fax filing a document
and, because the warning and dismissal letters give no indication that the second amended
UPC was rejected as an incomplete filing, we consider the second amended UPC to have been
"filed" with PERB before the Office
of
the General Counsel dismissed the charge. In fact, the
second amended UPC was actually received by PERB either by mail, facsimile, or both,
approximately one month before the Office
of
the General Counsel issued its warning letter.
Additionally, because PERB's regulations place no limit on the number
of
times a party may
amend its charge, so long as the amendments are filed before the charge is dismissed (CSU,
supra, PERB Decision No. 853-H, p. 7), the Office
of
the General Counsel should have
considered the amended allegations included in CSUEU's most recent filing, i.e., the second
amended UPC, before issuing its warning letter, and certainly before dismissing the charge.
(PERB Reg. 32620, subd. (d).)
Arguably, the second amended UPC does not include "all allegations on which the
charging party relies," as required by PERB Regulation 32621, because it appears instead to
reference and make minor changes to the text of the first amended UPC rather than including a
new and "complete" statement of the charge with all of the allegations included in one
document. Without expressly saying so, it appears that CSUEU intended for the second
20

amended UPC to incorporate by reference and amend the text
of
the first amended UPC.
PERB has previously allowed parties to employ this device. (Reed District Teachers
Association, CTAINEA
(Reye:i~
(1983) PERB Decision No. 332,
p. 6;
see also CSU Hayward,
supra, PERB Decision No. 607-H,
p.
21
[PERB regional attorney properly advised the
charging party, a layperson, whether new facts warranted filing a separate charge or an
amendment to the existing charge].)
While the second amended UPC was hardly a model
of
clarity, we think CSUEU's
intent to incorporate by reference and further amend the text
of
the first amended UPC was
sufficiently apparent from the face
of
the document that the Office
of
the General Counsel
should have accepted and addressed the amendments identified in the second amended UPC
before dismissing the charge. Alternatively, to the extent the Office
of
the General Counsel
refused to consider CSUEU's second amended UPC, because it did not contain, in a single
document, "all allegations on which the charging party relies," we hold that, as with other
perceived deficiencies in a charge, the Board agent's warning letter must identify and explain
to the charging party the reason(s) for refusing to consider an "incomplete" or otherwise
deficient filing.
In either event, it should be clear from the warning and dismissal letters which version
of
a charge and which allegations have been considered, when the Office
of
the General
Counsel refuses to issue a complaint.
18
Under the circumstances, even assuming CSUEU
18
It is also possible that the investigating Board agent chose to consider the first
amended UPC, because it appeared to be the version most favorable to CSUEU's case. 	(See
PERB Reg. 32645; and Golden Plains, supra, PERB Decision No. 1489.) As noted above, the
second amended UPC includes no facts to support its allegation of employer domination or
interference with the formation or administration of an employee organization under lIEERA
section 3571, subdivision (d). Again, however, if this was the Office of the General Counsel's
reason for ignoring the more recently filed second amended UPC, then, "unless otherwise
agreed by the Board agent and the charging party, prior to dismissal of any allegations
21

received the Office
of
the General Counsel's warning letter before the charge was dismissed, it
would still not have received adequate notice
of
deficiencies in the charge, as required by
PERB regulations and decisional law, because the warning and dismissal letters provide no
explanation for the Office
of
the General Counsel's failure to consider the timely filed
amendments included in the second amended UPC. Where the investigation
of
a charge does
not adequately address all allegations included in the charge, the matter must be remanded for
further investigation (County
of
Alameda (2006) PERB Decision No. 1824-M (Alameda)) or,
if
it is apparent that the dismissed charge has stated a prima facie case, for reversal and issuance
of
a complaint. (CSU Hayward, supra, PERB Decision No. 607-H.) Because the warning and
dismissal letters did not discuss the information and allegations included in the operative
version
of
the charge or, alternatively, explain why the Board agent's investigation focused
instead on an earlier version, we reverse the dismissal and remand the matter to the Office
of
the General Counsel subject to the following discussion.
B. 	CSUEU's Allegation that Bergmann's Conduct Violated HEERA.
CSUEU alleged that Bergmann's attendance "on behalf
of'
Williams at the EO 928
complaint meeting violated HEERA section 3580.5, subdivision (a), which prohibits supervisory
employees from "participat[ing] in" the "handling
of
grievances" on behalf
of
nonsupervisory
employees. 	CSUEU asserts two, alternative theories with regard to Bergmann's conduct. First,
CSUEU argues that Bergmann's "representation" of Williams interfered with CSUEU's right, as
the exclusive representative, to represent bargaining-unit employees in complaint proceedings, in
contained in the charge," the Board agent should issue a warning letter which clearly indicates
which allegations have been considered and found deficient. (PERB Reg. 32620, subd. (d).)
22

violation
ofHEERA
section 3571, subdivisions (c) and, derivately, (a).
19
Second, CSUEU
asserts that Bergman's admitted attendance "on behalf
of'
Williams violates section 3580.5,
subdivision (a), and/or constitutes interference with employee rights, in violation
of
HEERA
section 3571, subdivision (a).
The Office
of
the General Counsel determined that the allegations regarding Bergrnann's
conduct failed to state a prima facie case
of
any HEERA violation. With respect to the alleged
violation
of
Section 3580.5, the warning letter concluded that PERB lacks jurisdiction over this
provision. The Office
of
the General Counsel also rejected CSUEU's separate "interference"
allegation for lack
of
jurisdiction or perhaps lack
of
standing, because, according to the warning
letter, the rights allegedly interfered with, i.e., those set forth in section 3580.5, are not
guaranteed to employees by HEERA. Additionally, whether plead as an independent violation
of
Section 3580.5, an interference violation under Section 3571, subdivision (a), or as some
combination
of
these two provisions, the warning letter asserts that CSUEU's charge "fails to
19
As noted above, CSUEU's initial charge alleged that Bergmann's conduct at the
EO 928 complaint meeting violated section 3571, subdivisions (a) and (b), whereas the first
and second amended charges alleged that this same conduct violated subdivisions (a) and (c).
CSUEU's appeal also makes no mention
of
a subdivision (b) violation. Because our
regulations prohibit dismissal
of
an allegation without prior notice to the charging party
(Service Employees International Union, Local 715 (Langlois-Dul, et al.) (2007) PERB
Decision No. 1917-M; Alameda, supra, PERB Decision No. 1824-M), we cannot, in the
current procedural posture
of
this case, dismiss CSUEU' s subdivision (b) allegation. However,
to the extent CSUEU has not abandoned this theory, we note that, unlike the other PERB-
administered statutes, HEERA does not provide employee organizations with an independent
right to represent employees, unless the organization is recognized as the exclusive
representative. (Regents
of
the University
of
California
v.
Public Employment Relations Board
(1985) 168 Cal.App.3d 937, 944.) The significance
of
this distinction is that, under HEERA,
conduct that would violate employee organizational rights to represent employees in grievances
under the other PERE-administered statutes must be alleged not as a violation
of
HEER_,\
section 3571, subd. (b), but as either interference with the rights
of
employees to be represented
(HEERA, § 3571, subd. (a)), and/or as a failure and refusal to meet and confer with the exclusive
representative. (HEERA, § 3571, subd. (c); Regents
of
the University ofCal[fornia (1991)
PERB Decision No. 891-H, adopting proposed decision; see also Chaffey Joint Union High
School District (1982) PERB Decision No. 202 (Chaffey), p. 8; Mount Diablo, supra, EERB
Decision No. 44; Zerger, et al., eds., California Public Sector Labor Relations § 30.05[1 ].)
23

demonstrate [that] Bergmann was an agent of [the University] or acted with apparent or actual
authority," when he attended the EO 928 complaint meeting "on behalf of'' Belcher. We address
each of these concerns, beginning with the jurisdictional issues.
1. 	PERB's Jurisdiction Over Alleged Violations of HEERA Section 3580.5
The warning letter asserts, without explanation or citation to authority, that PERB lacks
jurisdiction to enforce HEERA section 3580.5. We disagree.
The Legislature has vested PERB with initial, exclusive jurisdiction to investigate and
remedy conduct which is alleged to constitute either unfair practices (San Diego Teachers
Association v. Superior Court (1979) 24 Cal.3d 1) or other violations of the statutes we
administer. (HEERA, § 3563, subds. (h), (m); see also MMBA, § 3509; Dills Act,§ 3514.5;
EERA, § 3541.3; Trial Court Act,§ 71639.l(c); Court Interpreter Act,§ 71825, subds. (b), (c);
IHSSEERA, § 110015; Pub. Util. Code,§§ 99561, subd. (h); TEERA, § 99561.2.)2° When
called upon to interpret this language, California courts have repeatedly upheld PERB's authority
to consider and remedy alleged violations of the PERB-administered statutes in addition to the
unfair practice provisions of those statutes. (Leek v. Washington Unified School Dist. (1981)
124 Cal.App.3d 43, 48-49; Link v. Antioch Unified School Dist. (1983) 142 Cal.App.3d 765,
768-69; San Jose Teachers Assn. v. Superior Court (1985) 38 Cal.3d 839, 862-63, cert. granted
and judgment vacated on other grounds sub nom. Abernathy v. San Jose Teachers Assn. (1986)
20 The Meyers-Milias-Brown Act (MMBA) is codified at section 3560 et seq.; the
Ralph C. Dills Act (Dills Act) is codified at section 3512 et seq.; the Educational Employment
Relations Act (EERA) is codified at section 3540 et seq.; the Trial Court Employment
Protection and Governance Act (Trial Court Act) is codified at section 71600 et seq.; the Trial
Court Interpreter Employment and Labor Relations Act (Court Interpreter Act) is codified at
section 71800 et seq.; the In-Home Supportive Services Employer-Employee Relations Act
(IHSSEERA) is codified at section 110000 et seq.; and the Los Angeles County Metropolitan
Transportation Authority Transit Employer-Employee Relations Act (TEERA) is codified at
Public Utilities Code, section 99560 et seq.
24

475 U.S. 1063; see also Compton Unified School District (1987) PERB Order No. IR-50
(Compton).)
Because the Legislature delegated its authority to PERB to consider and remedy unfair
practices and other alleged violations
of
HEERA, but included no language in the statute
expressly or impliedly limiting PERB's authority to consider alleged violations
of
Section 3580.5, we disagree with the Office
of
the General Counsel's determination that PERB
lacks jurisdiction to consider an alleged violation
of
this section
of
HEERA.
Having addressed any jurisdictional concerns, we now turn to consider the legislative
purpose
of
Section 3580.5, whether CSUEU has standing to assert a violation
of
this provision
of
the statute, and whether CSUEU has alleged sufficient facts to state a prima facie case that the
statute has been violated.
2. 	Legislative Purpose ofHEERA Section 3580.5
Neither the parties nor the Office
of
the General Counsel have cited to any case law
interpreting HEERA section 3580.5, subdivision (a), and we are unaware
of
any Board or court
precedent on the statutory provision. Nevertheless, in light
of
the plain language
of
the statute
and authorities interpreting similar language in HEERA and other labor relations statutes, we
conclude that Section 3580.5's prohibition against supervisory and nonsupervisory employees
participating in the handling
of
each other's grievances is designed to prevent a division
of
supervisors' loyalties between the interests
of
the higher education employer and the collective-
bargaining interests
of
nonsupervisory employees. (Vanguard Tours (1990) 300 NLRB 250
(Vanguard Tours); Jeffery
j\1.fg.
Co. (1974) 208 NLRB 75, 83 (Jeffery Mfg. Co.); United Clerical
Employr,;es
v.
County
of
Contra Costa (1977) 76 Cal.App.3d 119, 127.) The statute's separation
between supervisory and nonsupervisory employee participation in grievance proceedings and
other collective-bargaining matters serves to protect both the employer's right to a "cadre of
25

[supervisory] employees whose loyalty will not be compromised by concurrent obligations to
the interests
of
those employees who are entitled to negotiate wages, hours, and terms and
conditions
of
employment" (Unit Determination (LLNL), supra, PERB Decision 246b-H,
pp. 7-8),
andthe
rights
of
rank-and-file employees to collective-bargaining representatives
who are single-minded in their loyalty to the employees' interests. (Vanguard Tours, supra,
300 NLRB 250, 250.) We explain.
Under HEERA, supervisors are generally excluded from PERB's jurisdiction. (HEERA,
§ 3580; CSU, supra, PERB Decision No. 853-H; The California State University (1983) PERB
Decision No. 351-H, p.
71.)21	
However, supervisory employees in the higher education context
enjoy some, limited rights to representation and collective bargaining. (HEERA,
§§
3581.1-
3581.6.) Unlike EERA, which categorically excludes supervisory employees in K-14 education
from bargaining units with nonsupervisory employees but affords them full bargaining rights in
units composed solely
of
supervisory employees, section 3580.3 ofHEERA, like section 3522.1
of
the Dills Act, "clearly authorizes the Board to include in representation units employees who
perform some supervisory functions"
if
their performance
of
supervisory functions is only
"sporadic and atypical,"
if
"their exercise
of
authority does not require the use
of
independent
judgment, but is merely routine or clerical in nature,"
of
if, in addition to their supervisory
functions, the employees also perform rank-and-file work and are "sufficiently invested with
rank-and-file interests to warrant their inclusion in bargaining units." (Unit Determination
(LLNL), supra, PERB Decision No. 246b-H, p. 8.)
21
See also State
of
California, Department
of
Health (1979) PERB Decision No. 86-S
and State
of
California (Department
of
Consumer Affairs) (2004) PERB Decision No. 1711-S,
p. 18, which interprets similar jurisdictional limits in section 3513, subdivision ( c) of the Dills
Act and the Bill of Rights for State Excluded Employees, §§ 	et seq.
26

For example, employees with limited supervisory functions may be included in a rank-
and-file unit, when they exercise control only over work processes, which are generally
managerial prerogatives, as distinguished from control or discretion over the employer's
personnel policies and practices, which affect matters within the scope
of
representation. Thus,
"lead employees," whose guidance
of
other employees derives from their greater experience,
technical expertise or knowledge
of
the employer's mission and tasks, may be included in a unit
with rank-and-file employees, because their own wages, hours and working conditions closely
resemble those
of
other employees, and because their absence
of
control over such negotiable
matters as the employer personnel policies and practices makes them sufficiently invested with
rank-and-file interests to warrant their inclusion in bargaining units. (Unit Determination
(LLNL), supra, at pp. 8-9.)
In each case, the overriding concern is to prevent actual or potential conflicts
of
interest
or divided loyalties
of
supervisors because
of
their involvement in the collective-bargaining or
grievance proceedings
of
nonsupervisory employees. The potential for conflict stems primarily
from supervisors' authority to control or influence personnel decisions on matters falling within
the scope
of
representation, as opposed to technical or administrative control over work
processes. (Ibid.; see also Regents
of
the University
of
California (2011) PERB Decision
No. 2217-H (Regents), adopting proposed dee. at p. 15.) The same concerns necessarily apply
to the processing of grievances, which is a form
of
continuing negotiations between the exclusive
representative and the employer over the meaning and content
of
the collectively-bargained
agreement. (Chaffey, supra, PERB Decision No. 202, p. 8, citing NLRB
v.
Acme Industrial Co.
(1967) 385 U.S. 432,437 n. 2; see also Mount Diablo, supra, EERB Decision No. 44.)
Both California and federal statutory and decisional law point to sound policy reasons for
ensuring that those who represent employees in collective bargaining matters, including
27

grievances, are single-minded in their loyalty to the employees' interests. (Vanguard Tours,
supra, 300 NLRB 250,250; Jeffery Mfg. Co., supra, 208 NLRB 75, 83; United Clerical
Employees, supra, 76 Cal.App.3d 119, 129.) An underlying premise
of
the California and
federal labor relations statutes is that, while employees may choose to, or refrain from, forming,
joining or participating in the activities
of
employee or labor organizations,22 their freedom
of
choice does not extend to organizations or individuals acting on behalf
of
the employer.
(HEERA, § 3571, subd. (d); see, e.g., the discussion in
Oak
Grove, supra, PERB Decision
No. 5 82, esp. at pp. 14-15. )
23
Although CSUEU has alleged no facts to support a violation
of
22
Section 8(a)(2)
oftbe
National Labor Relations Act (NLRA), 29 U.S.C. § 151
et seq.,
prohibits employers from dominating or interfering with the formation or administration
of
any
"labor organization," and from providing financial or any other support to such organizations.
Section 2(5)
of
the NLRA defines a "labor organization" broadly to include "any organization
of
any kind, or any agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part,
of
dealing with employers
concerning grievances, labor disputes, wages, rates
of
pay, hours
of
employment, or conditions
of work"
Federal decisional law has consistently held that an employer violates section 8(a)(2),
when it "deals with" a statutory "labor organization" concerning any
of
the matters identified in
the statute, even when such "dealing" does not involve formal "bargaining" or "negotiating."
(See NLRB
v.
Cabot Carbon Co. (1959) 360 U.S. 203, 210-1 	Electromation, Inc. (1992) 309
NLRB 990, enf'd. (7th Cir. 1994) 35 F.3d 1148;
E.I
du Pont de Nemours & Co. (1993) 311
NLRB 893.)
23
When it drafted the definition
of
"supervisory employee" included in section 3580.3
of
HEERA, the Legislature borrowed liberally, in fact verbatim, from section 2(11)
of
the
NLRA and thus, we regard private-sector decisional law as highly persuasive when
interpreting that provision
of
HEERA. (Vallejo, supra, 12 Cal.3d 608, 615-617.) It is true that,
under the NLRA, supervisors are excluded entirely from the rights and protections afforded to
nonsupervisory employees, whereas, under HEERA, supervisors are excluded from PERB' s
jurisdiction but have some, albeit limited, rights to seek and provide mutual aid and protection
to one another and to engage in collective bargaining with the higher education employer.
(HEERA, §§ 3581.1-3581.6.) Although this distinction may be significant in other contexts, it
does not affect our interpretation
of
section 3580.5 as a statutory firewall between supervisors
and nonsupervisors in collective bargaining and grievance proceedings. Indeed
if
anything, the
fact that HEERA permits supervisors to bargain collectively and present grievances to the
employer, and thus potentially blurs the line between supervisory and rank-and-file employees
in ways not contemplated by the NLRA, only emphasizes the need for such a firewall to
prevent conflicts of interest and to ensure that the right of employees to "full freedom
of
28

section 3 571, subdivision ( d), the principle underlying that provision and its analogs in the
NLRA and other statutes is nonetheless instructive. Succinctly stated, that principle is that an
employer may not, through its representatives, sit on both sides of the table in collective
bargaining matters. Indeed, it would be anomalous for the Legislature to enact. language
specifically designed to ensure that employee organizations remain independent and free from all
employer influence, while allowing the employer, by its agent, to exert the same kind of
influence over employees in collective bargaining and grievance matters. ( Omnitrans (2010)
PERB Decision No. 2143-M, p. 6; see also§§ 3518.7, 3513, subd. (c) for Dills Act's prohibition
against managerial and confidential employees holding elective office in an employee
organization, if the organization also represents "state employees," i.e., rank-and-file employees
with collective-bargaining rights.)
Given the similar purposes and provisions of HEERA and the other California public-
sector labor relations statutes, and NLRA, we conclude that HEERA section 3580.5 serves to
protect not only the interests of higher education employers, but also the rights of nonsupervisory
employees, by ensuring that supervisory employees cannot "sit on both sides of the table" in
collective bargaining and grievance proceedings.
3. 	CSUEU's Standing to Assert an Alleged Violation of Section 3580.5
While not specifically identified as such, the Office of the General Counsel's warning
letter raises, at least implicitly, an issue of standing, i.e., whether CSUEU may assert an alleged
violation of Section 3580.5 on behalf of itself and/or employees it represents. To the extent
Section 3580.5 or similar language in other labor relations statutes has been litigated, it has
apparently only been asserted as an employer's affirmative defense (California Correctional
association, self-organization, and designation of representatives of their own choosing."
(HEERA, § 3560, subd. (e).)
29

Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198 (Peace Officers)) or discussed as a
provision designed to protect an employer's interests in unit determination decisions (Regents,
supra, PERB Decision No. 2217-H). The present case is thus the first time the Board has
considered whether the statute's prohibition against supervisory and nonsupervisory employees
participating in each other's collective bargaining and grievance proceedings may be alleged as
an employer unfair practice or other violation of the statute asserted by employees or employee
organizations against an employer.24 Although neither PERB nor a California court has directly
addressed the issue, we find nothing in the language of the statute, nor in the legislative purpose
of HEERA, to suggest that this provision was enacted solely as an affirmative defense for higher
education employers.
In Peace Officers, the Department of Personnel Administration invoked similar language
in Dills Act section 3529 as an affirmative defense against a correctional peace officer
association's petition to compel arbitration of a contractual dispute over whether supervisory and
non-supervisory peace officers could attend and observe the other group's meet-and-confer
sessions. In granting the association's petition to compel arbitration, however, the appellate
court did not reach the merits of the underlying dispute. (Peace Officers, supra, at pp. 210-11.)
Thus, the court in Peace Officers did not discuss the legislative history or purpose of the statute.
Because it was not raised by the facts of that case, neither did the court consider whether the
statute's language could only serve as an employer's affirmative defense or, whether it might
also support an unfair practice allegation against a public employer.
Although not directly on point, more instructive for its reasoning is Regents, supra,
PERB Decision No. 2217-H, in which the Board adopted an administrative law judge's (ALJ)
24 In addition to a handful of non-precedential proposed decisions, which were
not appealed to the Board, see California Correctional Peace Officers Ass 'n v. State of
California (2006) 142 Cal.App.4th 198.
30

proposed decision and order to deny a unit modification petition which would have added
police sergeants who performed some supervisory duties to an existing unit of rank-and-file
police officers. The employer in Regents opposed the petition, asserting that HEERA
section 3580.5 establishes a "clear and unambiguous statutory determination" that supervisors
may not belong to the same bargaining unit as rank-and-file employees. The ALJ relied on
PERB' s initial unit determination decisions under HEERA, which held that supervisors may be
included in the unit with rank-and-file employees, if their performance of supervisory
functions is only "sporadic and atypical," if "their exercise of authority does not require the use
of independent judgment, but is merely routine or clerical in nature," or if their supervisory
functions derive from "greater experience, technical expertise and knowledge of the
employer's mission and tasks" rather than from control over personnel policies and practices.
(Regents, supra, PERB Decision No. 2217-H, proposed dee. at pp. 16-17, citing Unit
Determination (LLNL), supra, PERB Decision No. 246b-H, p. 8.)
Although the ALJ rejected the categorical separation of supervisory and non-
supervisory employees urged by the employer in Regents, on the facts of that case, the ALJ and
the Board agreed with the employer that, "there are multiple areas in which [the police]
sergeants exercise independent judgment in matters defined as supervisorial work under the
statute," and that such responsibilities created "a significant potential for a conflict of interest
... between line officers and management." Because higher education employers are entitled
to a "cadre of [supervisory] employees whose loyalty will not be compromised by concurrent
obligations to the interests of those employees who are entitled to negotiate wages, hours, and
terms and conditions of employment" ( Unit Determination (LLNL), supra, PERB Decision
No. 246b-H, pp. 7-8), and because the supervisory functions performed by the police sergeants
went beyond "the point at which the employees' supervisory obligation to the employer
31

outweighs their entitlement to the rights afforded rank-and-file employees," the ALJ concluded
that the police sergeants "should be excluded from the rank-and-file unit in order to allow the
[employer] to effectively achieve its mission without undue conflict of interest." (Regents,
supra, PERB Decision No. 2217-H, proposed dee. at p. 24.)
While Regents was thus concerned with unit determination and placement issues rather
than the participation of supervisors in the collective bargaining or grievance meetings of
nonsupervisory employees, its reasoning touches on the same "underlying concern," which is
to prevent or limit "the potential for divided loyalties" that necessarily arises when the same
individuals both carry out the employer's personnel policies and practices and purport to
represent employees aggrieved by the implementation or enforcement of those policies and
practices. As one appellate court observed in a similar context involving the MMBA, "It takes
no vivid imagination to see that, due to its closeness to management, ... supervisory personnel
might (and in many instances do) possess divided loyalty, rendering them ill-equipped to
conduct labor negotiations and settle sensitive labor disputes from the standpoint of both the
employer and the union." (United Clerical Employees v. County of Contra Costa (1977)
76 Cal.App.3d 119, 127, emphasis added.)
And, while Regents discussed only the interest of the higher education employer in
preventing divided loyalties among its supervisors, its logic applies equally to protecting the
statutorily-guaranteed rights of rank-and-file employees. The Legislature sought to promote
"harmonious" and "cooperative" labor relations between the State's public institutions of
higher education and their employees, not by demanding that public employees abandon their
demands for improved wages, hours and working conditions and identify with the interests of
their employer, but by providing a system of collective bargaining through which employees
could attempt to resolve their differences with the employer. (HEERA, § 3560, subd. (a).)
32

In the absence
of
a clear statutory directive or legislative history to the contrary,
we
conclude that Section 3580.5 is also designed to protect the rights
of
nonsupervisory employees
to "full freedom
of
association, self-organization, and designation
of
representatives
of
their own
choosing." (HEERA, § 3560, sub. (e).) We note, in particular, that the plain language
of
the
statute's prohibition points equally in both directions. Not only are supervisors prohibited from
participating in the handling
of
grievances on behalf
of
nonsupervisory employees, but
nonsupervisory employees are likewise prohibited from performing these same functions
on
behalf
of
supervisors. (HEERA, § 3580.5, subd. (a).) Whatever protections against potential
or
actual conflicts
of
interest are afforded by the statute to higher education employers were
thus intended by the Legislature to extend equally to nonsupervisory employees.
Thus, we do not read Section 3580's exclusion
of
supervisory employees from
PERB's
jurisdiction as preventing the agency from considering an allegation that, by a supervisor's
conduct, an employer has violated HEERA section 3580, either by itself or in conjunction with
one
of
the employer unfair practice provisions in the statute. Because, unlike State
of
California, Department
of
Health, supra, PERB Decision No. 86-S, which asserted a putative
right
of
supervisors to serve as officers in employee organizations representing nonsupervisory
employees, the present charge seeks to enforce the rights
of
nonsupervisory employees, and
therefore does not run afoul
of
the jurisdictional or standing issues discussed in that decision or
raised, at least implicitly, during the Office
of
the General Counsel's investigation
of
the charge.
While we take no position at this stage
of
the proceedings on the merits
of
CSUEU' s
allegation that Bergmann's attendance at or conduct in the University's EO 928 complaint
process violated HEERA section 3580.5, we reject not only the jurisdictional concerns cited by
the Office of the General Counsel as grounds for dismissing this allegation but any implicit
concerns about CSUEU' s standing to bring that allegation in the present case.
33

4.
	Section 3580.5 and Allegations
of
Employer Interference with Employee Rights
Because we conclude that Section 3580.5's prohibition against supervisory employees'
participation in grievances on behalf
of
nonsupervisory employees may serve to protect
employee rights, we reject the implicit determination
of
the warning and dismissal letters that
Section 3580.5 cannot support an allegation
of
employer interference with employee rights, in
violation
of
HEERA section 3571, subdivision (a).25
HEERA section 3571, sub.division (a), expressly authorizes PERB to investigate,
adjudicate and remedy allegations that a higher education employer has engaged in unfair
practices by "impose[ing] or threaten[ing] to impose reprisals on employees, ... discriminat[ing]
or threaten[ing] to discriminate against employees, or otherwise [by] interfere[ing] with,
restrain[ing], or coerc[ing] employees because
of
their exercise
of
rights guaranteed by this
chapter," where "this chapter" refers to the entire Act. (HEERA, § 3560.) Although the
protected employee rights most frequently litigated in PERB' s unfair practice proceedings are
those set forth in HEERA section 3565,26 nothing in the language
of
section 3571,
subdivision (a), suggests that this provision is limited to enforcing only those rights set forth in
Section 3565. Moreover, there is Board precedent suggesting that Section 3565 is not the sole
source
of
enforceable employee rights under HEERA. For example, in Regents
of
the University
of
California (1984) PERB Decision No. 403-H, the Board held that a higher education
5 We consider it unnecessary at this stage
of
the proceedings to determine whether an
alleged violation
of
Section 3580.5 is more appropriately plead as a "stand-alone" violation
of
HEERA, or in conjunction with one or more
of
the employer unfair practice provisions set
forth in section 3571. Such matters can be more appropriately decided on the basis
of
a fully-
developed evidentiary record and briefing by the parties.
26 HEERA section 3565 grants higher education employees the right "to form, join and
participate in the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations and for the purpose of meeting
and conferring," as well as the right to refrain from such activity.
34

employee's right to representation in a meeting with management "derives directly from HEERA
Section 3565 and subsection 3560(d)."27 (Id. at p. 10, emphasis added; see also Compton, supra,
PERB Order No. IR-50; and El Dorado County Office of Education (1989) PERB Decision
No. 759 [recognizing "general violations" based on similar language in EERA].)
We presume that, if the Legislature had intended to limit the scope of "interference"
violations under HEERA to only those employee rights protected by Section 3565, it would have
said so. Because it chose instead to prohibit employer interference with all employee rights
"guaranteed by this chapter," and because the statutory language must be read broadly to
effectuate its "primary" and "fundamental," remedial purpose of ensuring full participation by
employees in the determination of their employment conditions by recognizing the right to "full
freedom of association, self-organization, and designation ofrepresentatives" (HEERA, § 3560,
subd. (e)), we must reject any interpretation that arbitrarily restricts section 3571, subdivision (a)
to enforcing only some employee rights guaranteed by HEERA. (Jefferson School District
(1979) PERB Order No. Ad-66 (Jefferson); Barstow Unified School District (1997) PERB
Decision No. 1138b (Barstow), p. 23; and International Brotherhood of Electrical Workers v.
City of Gridley (1983) 34 Cal.3d 191, 198-201.)
In interference cases, the question is whether there exists a mingling of supervisory
and employee representative functions, such that nonsupervisory employees would
reasonably tend to be restrained in the exercise of statutory rights. (Ditzler Mech. Contractors
27 HEERA, section 3560, subdivision (d), provides:
The people and the aforementioned higher education employers
each have a fundamental interest in the preservation and
promotion of the responsibilities granted by the people of the
State of California. Harmonious relations between each higher
education employer and its employees are necessary to that
endeavor.
35

(1981) 259 NLRB 610, 612.) Where an individual appears to, or effectively does "sit on both
sides of the table" as both a representative of employees and an agent of the employer with
influence over personnel policies or practices, the interference violation may be "obvious."
(Ibid.) In other cases, there may be difficult legal and factual issues, such as whether mere
attendance as "a support person," "on behalf of' a bargaining-unit employee, and "pursuant to
her right to representation" constitutes "participation" in the "handling of grievances" within the
meaning of the statute. As with other allegations of interference with employee rights, the well-
meaning intent of the employer or the individual supervisor in question is irrelevant (Carlsbad
Unified School District (1979) PERB Decision No. 89).
One such issue that will need to be decided at hearing is whether the Williams' EO 928
complaint constitutes a "grievance" within the meaning of section 3580.5. As noted above, the
parties apparently dispute whether the EO 928 complaint process is "contractual," i.e., whether it
is incorporated into the CBA, and whether it is therefore a "grievance" or some other form of
dispute not covered by the statute, or whether, as the University contends, the parties have
separately agreed to exclude discrimination allegations from the contract, except under special
circumstances.28 We do not resolve this issue at this stage of the proceedings, nor presume what,
if any significance, it may ultimately have in deciding the merits of this case. HEERA includes
no definition of the term "grievance" and that, while not directly on point, insofar as it affects the
exclusive representative's right to represent employees, PERB has previously disregarded any
distinctions between negotiated and non-negotiated grievance procedures.
In Mount Diablo, supra, EERB Decision No. 44, the Board determined that the statutory
right of the exclusive representative to represent unit employees "in their employment relations"
28 According to the University's Level I response to Belcher's grievance, "The parties
have agreed to exclude discrimination allegations from the contract, unless there has been a
violation or misinterpretation of the application of [the EO] 928 [complaint process]."
36

applies to both contractual and non-contractual grievance procedures. In reaching this
conclusion, the Board observed that the term "employment relations" was broad enough to
encompass employee grievances, regardless
of
whether they arose in collectively-bargained or
non-negotiated grievance procedures. It also reasoned that the policy considerations underlying
EERA section 3543 .1, subdivision (a),29 including the rights
of
employees to select a
representative and to be represented, are no less applicable when the bargaining agent carries out
its function in a non-contractual grievance procedure.
(Id.
at p. 1
0;
see also Eastern Sierra
Unified School District (1983) PERB Decision No. 312.)
Although both Mount Diablo and Eastern Sierra arose under EERA, HEERA contains
similarly broad language regarding the respective rights
of
employees and their designated
representative. Section 3560 identifies the statute's purpose as "providing a uniform basis for
recognizing the right
of
[higher education] employees ... to full freedom
of
association, self-
organization, and designation ofrepresentatives
of
their own choosing for the purpose
of
representation in their employment relationships with their employers and to select one
of
these
organizations as their exclusive representative for the purpose
of
meeting and conferring."
(HEERA, § 3560, sub. (e).) Additionally, in language that is identical or nearly identical to that
of
EERA, HEERA section 3565 recognizes the rights
of
higher education employees "to form,
join and participate in the activities
of
employee organizations
of
their own choosing for the
purpose
of
representation on all matters
of
employer-employee relations and for the purpose
of
29
EERA section 3543.1, subdivision (a), provides, in pertinent part, that:
Employee organizations shall have the right to represent their
members in their employment relations with public school
employers, except that once an employee organization is recognized
or certified as the exclusive representative of an appropriate unit
pursuant to Section 3544.l or 3544.7, respectively, only that
employee organization may represent that unit in their employment
relations with the public school employer.
37

meeting and conferring," while Section 3570 directs higher education employers, or such
representatives as they may designate, to meet and confer with the employee organization
selected as the exclusive representative of an appropriate unit "on all matters within the scope of
representation." The similar language ofEERA and HEERA apparently reflects the
Legislature's view, that employees may only exercise their guaranteed rights to "full freedom of
association, self-organization, and designation ofrepresentatives of their own choosing" in an
atmpsphere that is free of employer influence, domination or interference. (HEERA, § 3 571,
subds. (a) and (d); Oak Grove, supra, PERB Decision No. 582; see also NLRB v. Cabot Carbon
Co. (1959) 360 U.S. 203, 210-12.)
We conclude that the charge states a viable legal theory and alleges sufficient facts to
state a prima facie case. As in other interference cases, such questions are to be resolved through
an examination of all the circumstances present. (State of California (Department of Personnel
Administration) (2011) PERB Decision No. 2106a-S; Carlsbad, supra, PERB Decision No. 89.)
However, in the absence of guiding authority, we can see no reason to rule out, as a matter of
law, an allegation that a supervisor's involvement in grievance proceedings on behalf of a
nonsupervisory employee would reasonably tend to interfere with, restrain or coerce employees
in the exercise of their statutory rights, in violation ofHEERA section 3571, subdivision (a).
5. 	Agency Status of Bergmann
We next address the alternative reason cited by the Office of General Counsel for
dismissing CSUEU's allegation that the University violated Section 3580.5. The warning letter
states that CSUEU has not alleged sufficient facts to demonstrate that Bergmann, the admitted
supervisor of both Williams and Belcher, "was an agent of [the University] or acted with actual
or apparent authority of [the University] when he attended the meeting with Seigle on behalf of
38

Williams." Again, we disagree not only with the conclusion but also with the analysis
in
the
warning and dismissal letters.
CSUEU has alleged that Bergmann's attendance at the EO 928 complaint meeting
constituted "participation" in "the handling
of
grievances" on behalf
of
a nonsupervisory
employee. Because Bergmann cannot be held individually liable for unfair practices or other
alleged violations ofHEERA, the issue is whether his conduct may be imputed to the University,
i.e., whether he is acting as an agent
of
the University, by virtue
of
actual or apparent authority,
at the complaint proceeding.
As discussed in Santa Ana Unified School District (2013) PERB Decision No. 2332
(Santa Ana), PERB has previously articulated different tests for agency. For example, in
Compton Unified School District (2003) PERB Decision No. 1518, the Board described the test
as "whether the perception
of
agency is reasonable under the circumstances" and cited with
approval National Labor Relations Board (NLRB) case law: "whether under all circumstances,
employees 'would reasonably believe that the employee in question [the alleged agent] was
reflecting company policy and speaking and acting for management."' (Citations omitted.) In
West Contra Costa County Healthcare District (2011) PERB Decision No. 2164-M, p. 7, the
Board reiterated this test:
Both PERB and the courts have held that apparent authority to act
on behalf
of
the employer may be found where the manifestations
of
the employer create a reasonable basis for employees to believe
that the employer has authorized the alleged agent to perform the
act in question.
In the present matter, CSlJEU alleges, and the university admits, Bergmann's
supervisory status over both Williams and Belcher. Additionally, the University's own
correspondence indicates that Bergmann has supervisory authority and performs supervisory
duties on more than a sporadic or atypical basis and exercises independent judgment over matters
39

affecting Williams' and Belcher's wages, hours and working conditions, including performance
evaluations, corrective actions, and other workplace policies and procedures. Although the
University may raise additional factual or legal arguments in its answer to the complaint,
CSUEU has alleged sufficient facts
to
demonstrate Bergmann's status as a statutory supervisor.
While not dispositive, such allegations are also sufficient to satisfy the separate agency
issue identified in the warning and dismissal letters, i.e., whether Bergmann was acting as an
agent
of
the University when he attended the EO 928 complaint meeting with Belcher. Because
HEERA borrows verbatim its definition
of
"supervisory employees" from section 2(11)
of
the
NLRA, we consider the NLRB' s decisional law regarding the agency status
of
statutory
supervisors highly persuasive. Under the broad principles
of
agency used in federal labor law
and adopted by PERB (see Santa Ana, supra, PERB Decision No. 2332, p. 9), there exists a
presumption that,
"[i]f
they are supervisors, the [employer] is responsible for their conduct."
(Big Three Indus. Gas & Equip. Co. (5th Cir. 1978) 579 F.2d 304,310, enforcing Big Three
Indus. Gas & Equip. Co. (1977) 230 NLRB 392,395; see also Circuit-Wise, Inc. (1992)
309 NLRB 905, 908.) Whether characterized as a "presumption" or as a public policy objective,
the private-sector decisional law is clear that an employer's responsibility for the coercive acts
of
thers is not limited by technical rules
of
agency or strict principles
of
respondeat superior,
but rather must be determined with reference to the broad, remedial purposes
of
the statute.
(International Assn. of}vfachinists, Tool and Die }vfakers Lodge No. 35
v.
NLRB (1940)
311 U.S. 72, 80;
H.
.l
Heinz Co.
v.
NLRB (1941) 311 U.S. 514, 520-521.) 30 Given their similar
3°For federal court decisions interpreting the NLRA, see NLRB
v.
Hart Cotton Mills
(4th Cir. 1951) 190 F.2d 964,974; NLRB
v.
Main Street Terrace Care Center (6th Cir. 2000)
218 F.3d 531, 537-539; Wilson Trophy Co.
v.
NLRB (8th Cir. 1993) 989 F.2d 1502, 1511;
NLRB
v.
Int 'l Medication Sys. Ltd. (9th Cir. 1981) 640 F.2d 1110, 1112, fn. 1; and, Local 636
of
United Assn.
of
Journeymen and Apprentices
of
Plumbing and Pipe Fitting Industry
of
US. and
Canada, AFL-CIO
v.
NLRB (D.C. Cir. 1961) 287 F.2d 354, 359-360. For California judicial
40

language and purposes, we see no reason to follow a different approach for enforcing the rights
guaranteed by California's public-sector collective bargaining statutes. (Vallejo, supra, 12
Cal.3d 608, 615-617; McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d
293, 310-311.)
In addition to the presumptive agency status of a supervisor, CSUEU's charge and its
attachments include additional factual allegations to demonstrate that, under common law
principles of agency, Bergmann was acting in an agency capacity when he attended the EO 928
complaint meeting at Belcher's request. CSUEU alleges, and the University admits, that the
EO 928 complaint meeting was convened and conducted by Seigle, a high-ranking official in the
University's human resources department. By virtue of Seigle's position and responsibilities,
employees may reasonably presume that he is familiar with the University's policies and that he
speaks and acts on behalf of the University in grievance and complaint proceedings. (See, e.g.,
Regents of the University of California (1998) PERB Decision No. 1263-H, proposed dee. at
p. 45.) CSUEU further alleges, and again, the University admits, that Seigle neither objected to
Bergmann's attendance at the meeting "on behalf of' Williams, nor repudiated Bergmann's
conduct after the fact.
To the contrary, in its correspondence with CSUEU and Belcher, its position statements
filed in response to the present charge, and its opposition to CSUEU's appeal, the University
repeatedly insists that Bergmann's attendance at the meeting was permitted by University
policies and by Williams' statutory and contractual rights to representation. The University also
contends that Bergmann' s mere attendance "on behalf of' Williams and "pursuant to [her] right
of representation" does not constitute "participation in the handling of grievances on behalf of' a
decisions interpreting the Agricultural Labor Relations Act (codified at Lab. Code,§ 1140
et seq.), see Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 322;
and, Superior Farming Co. v. Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100, 118.
41

nonsupervisory employee within the meaning
of
HEERA section 3580.5, subdivision (a). While
the University disputes the legal significance
of
CSUEU' s factual allegations, it essentially
admits those factual allegations that support CSUEU's prima facie case for agency. Its own
correspondence suggests that the University's Vice President
of
Human Resources knew about
and did not repudiate Bergmann's attendance in the complaint proceedings "on behalf
of'
a
bargaining unit employee. In our view, CSUEU has stated a viable theory
of
a violation
of
section 3580.5
of
HEERA and alleged sufficient facts that Bergmann had apparent authority to
act as an agent
of
the University at the meeting.
The University may have authorities or additional facts to rebut the presumption that
Bergmann was acting as its agent when he attended the EO 928 complaint meeting "on behalf
of'
Belcher and/or that Bergmann's conduct does not rise to the level
of
"participation," or
otherwise contravene the language
of
Section 3580.5. However, such factual and legal disputes
cannot be resolved at this stage
of
the proceedings. Because an investigating Board agent is not
empowered to rule on the ultimate merits
of
a charge (see PERB Regs. 32630 and 32640),
"where the investigation results in receipt
of
conflicting allegations
of
fact or contrary theories
of
law, fair proceedings,
if
not due process, demand that a complaint be issued and the matter
be sent to formal hearing." (Eastside, supra, PERB Decision No. 466, p. 7.)
On the facts, as alleged by CSUEU and admitted by the University, there is sufficient
information to state a prima facie case
of
either a stand-alone violation
of
HEERA
section 3580.5, subdivision (a), an interference violation
of
section 3571, subdivision (a), and/or
a violation of the two provisions operating in tandem. We therefore remand for issuance
of
a
complaint as to this allegation.
42

6. 	Whether Section 3580.5 is Subject to Waiver
Although not considered by the Office of the General Counsel, we briefly discuss the
issue of waiver. HEERA section 3567, which is modeled closely after section 9(a) of the
NLRA, provides that, "[a]ny employee or group of employees may at any time, either
individually or through a representative of their own choosing, present grievances to the
employer and have such grievances adjusted, without the intervention of the exclusive
representative," subject to certain provisos, which are not at issue here. (Emphasis added.)
Although it is a cardinal rule of statutory interpretation that one provision of a statute should
not be read to conflict with another, a literal reading of Section 3567, or similar language
included in the parties' CBA and/or the EO 928 complaint procedure, could be construed as
authorizing employees to designate a statutory supervisory employee as "a representative of
their own choosing" for the purpose of presenting grievances to the employer.
PERB and federal authorities have previously considered language that is identical or
nearly identical to Section 3567 and determined that it does not "waive" the right of exclusive
representative. In Chaffey, supra, PERB Decision No. 202, PERB adopted federal precedent
which holds that parallel language in the NLRA does not establish an absolute right of
exclusively-represented employees in the selection of a grievance representative. If
exclusively-represented employees are not "free" to disregard the system of majority rule and
exclusive representation by selecting an agent of a rival employee organization as their
grievance representative, then certainly they are not "free" either to choose the employer's
statutory supervisor as their grievance representative.
While the exclusive representative has broad discretion to reach an agreement covering
wages, hours and working conditions in return for various concessions, such agreements "rest
on the premise of fair representation and presuppose that the selection of the bargaining
43

representative remains free." (NLRB
v.
Magnavox
Co.
of
Tennessee (1974) 415 U.S. 322, 325
[internal quotations omitted].) A policy or rule that interferes with the very preconditions
of
employee choice is therefore invalid, even
if
it was adopted through otherwise lawful
meeting and conferring with the representative (County
of
Imperial (2007) PERB Decision
No. 1916-M), or
if
the representative knowingly acquiesced to its restrictions. (International
Brotherhood
of
Electrical Workers
v.
City
of
Gridley (1983) 34 Cal.3d 191, 195, 198-201.)
Where, as here, the primary purpose
of
the statute is "to provide a uniform basis for
recognizing the right
of
public
[]
employees to join organizations
of
their own choice"
(Jefferson, supra, PERB Order No. Ad-66; Barstow, supra, PERB Decision No. 1138b, p. 23),
statutory language aimed at preserving the very conditions necessary for employees to freely
exercise that choice cannot be waived or abridged by the exclusive representative.
Any notion that, CSUEU waived any rights it may have under section 3580.5 by
incorporating general language from HEERA section 3567 is also at odds with the language
of
Article
8,
sections 8.7 and 8.9
of
which specify that the complainant and one representative,
if
any, may initiate the informal complaint process by "discuss[ing] the complaint with the
[complainant's] immediate non-bargaining unit supervisor
....
" 	It is self-evident that the
parties did not contemplate that an immediate, non-bargaining unit supervisor, such as
Bergmann, could act as the complainant's representative,
if
the same individual were to be
sitting across the table as University's representative responsible for adjusting the complaint.
We thus reject the assertion that section 3567 ofHEERA, or similarly-worded language
in a contractual or non-negotiated grievance procedure, can be used to "waive" or otherwise
subvert the fundamental policies the Legislature sought to promote when it enacted HEERA
and California's other labor relations statutes.
44

C. 	CSUEU's Allegation that the University Unilaterally Altered Its Records Retention
Policy.
On remand, the Office
of
the General Counsel must consider CSUEU's second
amended charge, or any subsequent amendments thereto, to determine whether CSUEU has
alleged sufficient facts to state a prima facie case that the University unilaterally altered its
records retention policy, and whether it has alleged sufficient facts to dispute the University's
factual allegations that would constitute a waiver
of
the right to bargain or any other
affirmative defense to CSUEU's unilateral change allegation.
D. 	CSUEU's Allegation that the Universitv Failed and Refused to Provide Information
CSUEU's appeal asserts that its allegation that the University withheld and destroyed
records that were necessary and relevant for representing Belcher in her complaint constituted
a viable theory
of
law, for which a PERB complaint should have issued. It contends that, in
dismissing this allegation, the investigating Board agent improperly considered the merits
of
factual or legal disputes. The appeal includes no reference to, or explanation of, the following
sentence, which appeared as the first bullet point in CSUEU's second amended charge: "The
union withdraws its reference in paragraph one
of
the first amended charge regarding right to
information for the grievance or complaint process."
Although the second amended charge, including the above-quoted language, was not
considered by the Office
of
the General Counsel, we do not regard this omission as providing
any grounds for relief from the dismissal
of
this allegation. When considering an appeal from
a dismissal, the Board examines the entire case file and conducts a de nova review
of
the
factual allegations included the charge. (.Jurupa, supra, PERB Decision No. 2283, pp. 3, 31.)
Thus, regardless of how the charge was handled during its initial investigation, nothing
requires the Board to ignore material in the operative version of the charge which indicates the
charging party's desire to withdraw certain allegations or legal theories.
45

The reasonable inference to be drawn from the above-quoted sentence and its
surrounding context is that CSUEU' s second amended UPC withdrew the factual allegations
included in the previous first amended UPC as support for CSUEU's contention that the
University had failed and refused to provide information that was necessary and relevant for
investigating Belcher's complaint. We consider this allegation to have been withdrawn before
the charge was dismissed and therefore disregard CSUEU's belated attempt to resurrect this
contention in its appeal.31
ORDER
It is hereby ORDERED that the dismissal of the unfair practice charge, as amended, in
Case No. LA-CE-1166-H is REVERSED and the matter REMANDED to the Office of the
General Counsel for further investigation of the California State University Employees Union,
Service Employees International Union Local 2579's (CSUEU) allegation that the Trustees of
the California State University (University) unilaterally changed its policies affecting employee
complaints, and for issuance of a complaint as to CSUEU's allegations that the University has
violated the Higher Education Employer-Employee Relations Act, Government Code
sections 3580.5 and 3571, subdivision (a), in accordance with this decision.
Chair Martinez and Member Huguenin joined in this Decision.
31 We also disregard CSUEU's attempt to amend or supplement its previous factual
allegations by asserting, for the first time, in its appeal, that "CSUEU and Ms. Belcher
requested" the documents that were allegedly withheld and destroyed by the University,
whereas every version of CSUEU' s charge, and all of the supporting documentation, had
alleged that Belcher, acting alone, had requested the documents at issue.
46