Trustees of the California State University (Long Beach) (PERB 2201H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SUZANNE M. SCHOLZ,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (LONG BEACH),
Respondent.
Case No. LA-CE-1026-H
PERB Decision No. 2201-H
September 13, 2011
Appearances: Suzanne M. Scholz, on her own behalf; Donald
A.
Newman, University
Counsel, for Trustees
of
the California State University (Long Beach).
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Suzanne
M.
Scholz (Scholz) from a Regional Director's
dismissal
of
her unfair practice charge. The charge alleged that the Trustees
of
the California
State University (Long Beach) (CSU) violated the Higher Education Employer-Employee
Relations Act (HEERA) 1 by retaliating against her for having filed an unfair practice charge
and contract grievances. Following deferral
of
the charge to arbitration, the 	Regional
Director dismissed the charge after Scholz failed to request a repugnancy review pursuant to
PERB Regulation 32661.2
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

The Board has reviewed the dismissal and the record in light of Scholz's appeal, CSU's
response,3 and the relevant law. Based on this review, we affirm the dismissal of the charge
for the reasons discussed below.
FACTUAL AND PROCEDURAL SUMMARY
Scholz was employed as a lecturer with CSU. On February 6, 2008, Scholz filed an
unfair practice charge alleging that CSU retaliated against her for having previously filed an
unfair practice charge with PERB4 and for filing several contract grievances over the denial of
teaching assignments and the contents of a performance evaluation.
On February 19, 2008, Scholz filed a grievance pursuant to the provisions of a
memorandum of understanding (MOU) between CSU and the California Faculty Association
(CFA). The grievance alleged violations of Articles 3, 10, 11, 12 and 15 of the MOU, and
described the grounds for the grievance as follows:
Grievant eligible to teach classes in Marketing for Spring 2008
semester. The Grievant was not appointed work in Fall 07
because work was not available. In Spring 2008, work became
available and courses were offered to lecturers with one-year
appointments or less. Grievant has one-year appointment in
Marketing. Grievant denied careful consideration and
appointment in applicable courses. Grievant denied preference
for work over lecturer faculty who did not have one-year
appointments. Failure by department and University to offer new
or additional work to Grievant, in classes which the Grievant is
qualified and eligible to teach.
Further, Grievant has filed previous grievance on Spring 2007
evaluation, currently in personnel action file (CSU #ROJ-2007-125).
Grievant alleges that as long as the Spring 2007 evaluation remains
in file, Grievant can not accurately be reviewed and considered for
subsequent work and appointment. Grievant alleges Spring 2007
evaluation contains incorrect factual information.
3 As discussed in footnote 7, infra, we have considered CSU's response filed after the
matter was placed on the Board's docket.
4 PERB Case No. LA-CE-824-H.
2

By letter dated March 11, 2008, CSU asserted that the charge should be deferred to
arbitration because it concerned matters subject to binding arbitration. Specifically, CSU
asserted that Article 10.36 of the MOU provides that "[n]o reprisals shall be taken against any
employee for the filing and processing of any grievances" and that Article 6.16 provides that
"[a] faculty unit employee shall not suffer reprisals for participation in CF A activities."
By letter dated April 22, 2008, the PERB Regional Director informed Scholz that the
standards for deferral pursuant PERB Regulation 32620(b)(6)5 had been met and that the
charge would be deferred to the contractual arbitration process and placed in abeyance until
such time as the arbitration process has concluded. The letter further informed Scholz that,
following the arbitration, the charge would be dismissed unless Scholz sought a repugnancy
review by PERB of the arbitrator's decision under the criteria set forth in Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-8la (Dry Creek). The letter further
advised Scholz that she could amend the charge to address any factual inaccuracies in the letter
or provide additional facts that would require a different conclusion.
Scholz did not file an amended charge. By letter dated May 6, 2008, the Regional
Director issued a notice of abeyance and deferral to arbitration, notifying the parties that the
charge was being deferred to arbitration pursuant to PERB Regulation 32620(6 )(6). The letter
5 Regulation 32620(6 )( 6) requires PERB to:
Place the charge 	abeyance if the dispute arises under MMBA,
HEERA, TEERA, Trial Court Act or Court Interpreter Act and is
subject to final and binding arbitration pursuant to a collective
bargaining agreement, and dismiss the charge at the conclusion of
the arbitration process unless the charging party demonstrates that
the settlement or arbitration award is repugnant to the purposes of
MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter
Act, as provided in section 32661.
3

again notified Scholz that, following the arbitration, the charge would be dismissed unless
Scholz sought a repugnancy review by PERB.
On May 18, 2009, the arbitrator issued an arbitration decision in the matter deferred to
arbitration. Scholz did not file a request for a repugnancy review with PERB. After
attempting unsuccessfully to reach Scholz by telephone,6 on January 7, 2010, the Regional
Director issued a letter dismissing the charge for the reasons set forth in the May 6, 2008
notice of abeyance and deferral to arbitration.
By letter to PERB dated January 14, 2010, Scholz stated that she was not aware that she
could appeal the arbitrator's decision and requested to "move forward with my appeal." That
letter further requested an extension of time to file with PERB. By letter dated January 25,
2010, PERB notified the parties that, pursuant to the parties' agreement, an extension of time
within which to file an appeal from the dismissal of the charge was granted to February 16,
2010.
On February 16, 2010, Scholz filed a document purporting to be an amended charge.
The amended charge includes a copy of the arbitrator's decision and award and asserts that the
arbitrator's decision did not address the retaliation issues raised in her original charge before
PERB.
On June 3, 2010, CSU filed a response to the amended charge. 7
6 The telephone number contained in the charge had been disconnected.
7 Scholz did not file an appeal from dismissal in accordance with the requirements of
Regulation 32635. Nonetheless, the Board has historically treated the filing of an
amended charge after an unfair practice charge has been dismissed as an appeal
dismissal of the charge. (Compton Unified School District (2008) PERB Order No. Ad-374;
Regents of the University of California (2008) PERB Order No. Ad-370-H; Los Angeles Unified
School District (2007) PERB Order No. Ad-368.) Given Scholz's failure to properly identify
the appeal and CSU' s assertion that it believed it would receive notice from PERB of the
deadline to respond, as PERB typically provides when amended charges are filed, the Board
finds good cause to accept CSU's June 3, 2010 response to the appeal.
4

ISSUES
1. 	Did Scholz timely file a request for repugnancy review of the arbitrator's
decision?
2. 	If so, was the arbitrator's decision repugnant to the purposes of HEERA?
DISCUSSION
Timeliness
As indicated above, PERB Regulation 32620(b)(6) requires PERB to place an unfair
practice charge under HEERA in abeyance if the dispute is subject to final and binding
arbitration pursuant to a collective bargaining agreement, and to dismiss the charge at the
conclusion of the arbitration process unless the charging party demonstrates that the
settlement or arbitration award is repugnant to the purposes of HEERA. Pursuant to
PERB Regulation 32661, an unfair practice charge may be filed based on a claim that the
settlement or arbitration award is repugnant to HEERA. Unfair practice charges so filed are
subject to all of the requirements applicable to the filing of unfair practice charges under PERB
Regulation 32615 and must allege with specificity the facts underlying the charging party's
claim that the arbitrator's award is repugnant to the purposes of the applicable statute. (PERB
Reg. 32661(b).)
HEERA section 3563.2, subdivision (a), prohibits PERB from issuing a complaint with
respect to "any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge." The limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177.) A charging party bears the burden of
demonstrating that the charge is timely filed. (Long Beach Community College District (2009)
5

PERB Decision No. 2002.) Thus, Scholz was required to plead facts showing her request for
repugnancy review was timely filed.
The arbitrator issued his decision on May 18, 2009. The amended charge filed nearly
nine months later on February 16, 2010, fails to allege any facts showing when Scholz first
learned
of
the issuance
of
the arbitration award. Moreover, her January 14, 2010 letter states
only that she was not aware that she could appeal the arbitrator's award, but does not indicate
that she was not previously aware
of
the award. Given that the PERB Regional Director twice
informed Scholz that she would have the right to seek a repugnancy review following issuance
of
the arbitration decision, we conclude that Scholz knew or should have known
of
the issuance
of
the arbitration decision shortly after May 18, 2009. Accordingly, the request for repugnancy
review filed on February 16, 2010, was untimely.
We disagree with our colleague that PERB Regulation 3266l(d) authorizes the Board to
decide this case. That section provides that the "Board itself may, at any time, direct that the
record be submitted to the Board itself for final decision." We construe this language to
mea...11
that the Board may itself render a final decision without requiring the matter to be processed first
by the PERB Office
of
the General Counsel as an unfair practice charge. Nothing therein,
however, authorizes the Board to disregard the statute
of
limitations and rule on an untimely
claim.
Merits
of
Repugnancy Claim
Even if we were to consider Scholz' s request for repugnancy review to be timely filed,
we would nonetheless dismiss the charge for failure to meet 	establishing
that the arbitration award is repugnant to the purposes
of
HEERA.
As indicated above, PERB Regulation 32620(6)(6) requires PERB to dismiss a charge
filed under HEERA at the conclusion of the arbitration process unless the charging party
6

demonstrates that the arbitration award is repugnant to the purposes
of
HEERA. In
determining repugnancy claims, PERB utilizes the standards set forth in Dry Creek in which
the Board adopted the post arbitration deferral standard enunciated by the National Labor
Relations Board (NLRB) in Spielberg Manufacturing Company (1955) 112 NLRB 1080
(Spielberg). 8 (Santa Ana Unified School District (2008) PERB Decision No. 1951 (Santa
Ana).) Under this standard, the Board will exercise its discretionary jurisdiction to dismiss and
defer a complaint to the arbitrator's award if: (1) the unfair practice issues were presented to
and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the parties
agreed to be bound; and ( 4) the decision
of
the arbitrator must not have been "clearly
repugnant to the purposes and policies
of
the Act." (Dry Creek.)
In Olin Corp. (1984) 268 NLRB 573,574 (Olin Corp.), the NLRB further described its
standard for deferral to an arbitrator's award:
...
we adopt the following standard for deferral to arbitration
awards. We would find that an arbitrator has adequately
considered the unfair labor practice
if
(
1)
the contractual issue is
factually parallel to the unfair labor practice issue, and (2) the
arbitrator was presented generally with the facts relevant to
resolving the unfair labor practice. In this respect, differences,
if
any, between the contractual and statutory standards ofreview
should be weighed by the Board as part
of
its determination under
the Spielberg standards
of
whether an award is 'clearly repugnant'
to the Act. . . . Unless the award is 'palpably wrong,' i.e., unless
the arbitrator's decision is not susceptible to an interpretation
consistent with the Act, we will defer. [Fns. omitted.]
8 The Dry Creek standards are applicable to cases under HEERA. (Regents
of
the
University
of
California (San Francisco) (1984) PERB Order No. Ad-139-H; California State
University (1984) PERB Decision No. 392-H.)
7

The NLRB further stated that it:
...
would require that the party seeking to have the Board
[}.JLRB]
reject deferral and consider the merits of a given case show that the
above standards for deferral have not been met. Thus, the party
seeking to have the Board [NLRB] ignore the determination
of
an
arbitrator has the burden
of
affirmatively demonstrating the defects
in the arbitral process or award. [Fn. omitted.]
Thus, PERB has found issues decided by an arbitrator to be "factually parallel" to those
raised in an unfair practice charge alleging retaliation where the evidence presented on the
alleged contract violation, including the employer's justification for its conduct, is the same as
the evidence that would be considered by PERB. (Santa Ana; San Diego County Office
of
Education (1991) PERB Decision No. 880 [overruled on other grounds]; Yuba City Unified
School District (1995) PERB Decision No. 1095.)
In this case, the grievance filed by Scholz alleges that CSU' s denial
of
teaching
assignments violated Article 10
of
the MOU. Article 10.36 prohibits reprisals against an
employee for the filing and processing
of
a grievance. In addition, Article 6.16 prohibits
retaliation for engaging in CF A activities. The grievance alleges that Scholz has filed previous
grievances over her Spring 2007 evaluation and that, as long as that evaluation remained in her
file, she cannot be accurately reviewed and considered for subsequent work and appointment.
Thus, the grievance alleges similar facts to those that would be considered in the unfair
practice charge.
In her appeal, Scholz argues that, because the parties failed to include retaliation in the
stipulated issue before the arbitrator, post-arbitral deferral is inappropriate. We disagree. 	The
purpose of the Board's deferral rules is to encourage voluntary resolution of disputes through
agreed upon procedures. A party cannot avoid deferral simply by failing to pursue available
contractual procedures. By failing to specifically include the retaliation claim in her
stipulation of the issues before the arbitrator, Scholz cannot now assert that the arbitrator's
8

award is repugnant to the purposes
of
HEERA. Moreover, in this case, the arbitrator
considered CSU' s justification for its actions and concluded that CSU gave Scholz "careful
consideration" in its decision not to assign her to teach classes. Thus, the arbitrator, stated:
"The totality
of
the evidence reflects that the decision not to reappoint Scholz was not made
'in
bad faith and without careful consideration;' rather the evidence suggests that [the decision
maker] acted in good faith." This conclusion necessarily means that CSU's actions were not
the product
of
unlawful discrimination. Thus, the arbitrator's conclusions encompass the same
factual issues that would have been presented on the retaliation claim.
We also find that the arbitration award itself is not "clearly repugnant to the purposes
and policies"
of
HEERA. Under the Spielberg standards adopted by the Board in Dry Creek,
an arbitration award is not repugnant unless it is "palpably wrong," i.e., not susceptible to an
interpretation consistent with HEERA. (Olin Corp.) No such showing has been made in this
case.9
ORDER
The unfair practice charge in Case No. LA-CE-1026-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member McKeag joined in this Decision.
Member Huguenin's concurrence begins on page 10.
9 We decline to adopt the view of our colleague that allegations of retaliation for having
participated in the Board's processes can never be deferred to arbitration. In this case, there is
simply no showing that the retaliation issues could not have been resolved through the
arbitration process or that the arbitration award is repugnant to the purposes and policies of
HEERA.
9

HUGUENfN, Member, concurring: I agree with the majority that the repugnancy review
claim is tardy. I believe we have the discretion to consider the repugnancy claim under Public
Employment Relations Board (PERB or Board) Regulation 32661(d). 1 The majority disagrees,
and thus they dismiss
the.
repugnancy claim as untimely. ·Since the majority concludes the
repugnancy claim is untimely, I conclude there is no need to address the repugnancy issue.
Therefore, I do not join that discussion.
I write separately for another reason. Were the issue
of
deferral before me, I would
follow the lead
of
the National Labor Relations Board (NLRB) in not deferring to arbitration a
claim that an employee was discriminated against for seeking relief under one
of
the labor
board's statutes. Such a claim was made here and deferred to arbitration. In my view that
deferral was inappropriate.
The National Labor Relations Act contains an express provision2 prohibiting
discrimination against an employee due to filing charges or giving testimony. In Filmation
Associates, Inc. (1977) 227 NLRB 1721, the Board explained why it does not defer such matters
to arbitration:
The prohibition expressed in Section 8(a)( 4) against discharging or
otherwise discriminating against an employee because he has filed
charges or given testimony under the Act is a fundamental
guarantee to employees that they may invoke or participate in the
investigative procedures of this Board without fear ofreprisal and
is clearly required in order to safeguard the integrity of the Board's
processes. In our view the duty to preserve the Board's processes
1 PERB Regulation section 32661(d) states that as to repugnancy matters the "Board itself
may, at any time, direct that the record be submitted to the Board itself for final decision."
PERB regulations are codified at California Code of Regulations, title 8, section 31001, et seq.
2 Section 8(a)(4) provides: "It shall be an unfair labor practice for an employer
...
to
discharge or otherwise discriminate against an employee because he has filed charges or given
testimony under this Act."

from abuse is a function
of
this Board and may not be delegated to
the parties or to an arbitrator. Accordingly, as we conclude that
issues involving Section 8(a)(4)
of
the Act are solely within the
Board's province to decide we will not apply the Spielberg
[3]
doctrine to such issues.
(Id., at p. 1721.)
We have held that filing PERB charges,4 testifying in a PERB hearing,5 and participating
in a PERB informal settlement conference6 are conduct protected from discrimination or
retaliation. These rights arise not from provisions
of
our statutes that protect employee rights to
form, join and participate in activities
of
employee organizations (or to refuse to do so
),
7
but
rather are necessary antecedents to the rights
of
employees to access the remedies afforded by
our statutes against discrimination or retaliation by employers or employee organizations. Like
the NLRB, we must safeguard our processes from abuse and should not delegate the
responsibility to protect employees who use our processes. Accordingly, I would treat
allegations
of
discrimination or retaliation for accessing or participating in PERB's remedial
processes as matters for adjudication by PERB and not for disposition under our routine deferral
rules.
3 Spielberg Manufacturing Company (1955) 112 NLRB 1080.
4 Los Angeles Community College District (2004) PERB Decision No. 1667, affirming
regional attorney's dismissal.
5 Regents
of
the University
of
California 	984) 	Decision. No 403-H; Placer Hills
Union School District (1984) PERB Decision No. 377.
6 Fullerton Elementary School District (2004) PERB Decision No. 1671, adopting the
administrative law judge's proposed decision.
7 Government Code Sections 3502, 3515, 3531, 3543, 3565, 3581.1, 71631, 71813, and
99563. 
11