Trustees of the California State University (East Bay) (PERB 2391H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WENJIU LIU,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Respondent.
Case No. SF-CE-995-H
PERB Decision No. 2391-H
September 2, 2014
Appearances: 	Wenjiu Liu, on his own behalf; Dawn
S.
Theodora, University Counsel, for
Trustees
of
the California State University (East Bay).
Before Martinez, Chair; Huguenin, and Winslow, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Wenjiu Liu (Liu) to a proposed decision (attached) by
a PERB administrative law judge (ALJ). The PERB complaint alleged that Trustees
of
the
California State University (East Bay) (CSUEB or University) violated section 3571(a)
of
the
Higher Education Employer-Employee Relations Act (HEERA)1 by denying Liu tenure and
promotion, restricting him from campus grounds, and suspending and terminating him for
engaging in the protected activity
of
filing grievances, participating in a grievance hearing, and
filing an unfair practice charge.
CSUEB denied committing any unfair practices, and, as an affirmative defense,
contended that the complaint should be deferred to arbitration pursuant to PERB
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Regulation 32620(b)(6).2 The portions of the PERB complaint related to CSUEB's suspension
and termination of Liu were eventually deferred to final and binding arbitration, which resulted
in an arbitration award. The ALJ issued a proposed decision dismissing the remaining
allegations. In his exceptions to that proposed decision, Liu challenged the ALJ's order
deferring the suspension and termination matters to arbitration, and he challenged the
arbitration award on the grounds that it was repugnant to the purposes ofHEERA.
The Board has reviewed the entire record in this case, including the ALJ' s findings of
fact and conclusions oflaw, Liu's exceptions, and CSUEB's response thereto. The ALJ's
findings of fact are supported by the record. Accordingly, we adopt the ALJ' s findings of fact
as the findings of the Board itself, augmented by our discussion below.
The ALJ's conclusions oflaw with regard to Liu's allegation that CSUEB retaliated
against him by denying him tenure and promotion and by restricting him from campus grounds
are well reasoned and in accordance with applicable law. We therefore adopt the ALJ's
conclusions, as supplemented by our discussion below of issues raised by Liu's exceptions.
We also address Liu's five-part motion to the Board, filed after the evidentiary record in this
case was closed.
For reasons discussed below, we also affirm the ALJ's interlocutory order deferring
Liu's allegations concerning his suspension and dismissal to arbitration and the ALJ's
determination that the arbitrator's award was not repugnant to HEERA.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

PROCEDURAL HISTORY
Charge and Complaint
Liu filed the initial charge in the present matter on September 30, 2011.3 Liu filed an
amended charge on or about January 9, 2012. On March 27, 2012, the Office of the General
Counsel issued a complaint alleging that CSUEB violated HEERA section 3571(a) by denying
Liu tenure and promotion, restricting him from campus grounds, and suspending and
terminating him for engaging in the protected activities of filing approximately 15 grievances
between April and June 2011, participating in a May 9, 2011, grievance meeting and filing an
unfair practice charge on or about September 30, 2011.
Answer and Motion to Defer to Arbitration
On April 20, 2012, CSUEB answered the complaint, denying any violation ofHEERA
and including affirmative defenses. Specifically, CSUEB contended that the entire complaint
3 The ALJ found that Liu "efiled" his unfair practice charge on September 30, 2011, but
that the effective filing date was October 17, 2011, the date that PERB received an original
hard copy of the charge. Prior to July 1, 2013, charging parties were pennitted to file their
unfair practice charge using "on-line filing" as defined by former PERB Regulation 32613. As
of September 30, 2011, PERB Regulation 32135(b) stated, in relevant part:
All documents ... shall also be considered "filed" when received
during a regular PERB business day by ... on-line filing as
defined in Section 32613.
Therefore, Liu's charge was considered "filed" as of September 30, 2011. The filing
date was not affected by the requirement in the version of PERB Regulation 32135(c) in effect
at the time, which stated, in relevant part:
A party filing documents by ... on-line filing must also deposit
the original, together with the required proof of service and the
required number of copies, in the U.S. mail or with a delivery
service for delivery to the appropriate PERB office.
We conclude, contrary to the ALJ, that the effective filing date of the charge was
September 30, 2011 at 4:24 p.m., as time stamped on the charge by PERB's "on-line filing"
service.
3

should be deferred because Article 10.36 of the collective bargaining agreement (CBA)
between CSUEB and the California Faculty Association (CPA), (Liu's exclusive
representative), provides: "No reprisals shall be taken against any employee for the filing and
processing of any grievances."
CSUEB filed a pre-hearing motion to defer the allegations in the complaint to the
arbitration procedures, to which Liu objected.
CSUEB asserted that Liu had filed grievances on each of the alleged retaliatory acts
· alleged in the unfair practice charge and agreed that it would allow Liu to amend each of his
grievances to allege violations of CBA section 10.36 or would allow for the filing of
grievances under CBA section 10.36. CSUEB waived any procedural objection to proceed to
arbitration.
The ALJ set a pre-hearing conference for May 18, 2012 to respond to the motion to
defer. At the end of the pre-hearing conference, the ALJ granted the motion, and issued a
written ruling on May 22, 2012, deferring the allegations in the PERB complaint to
arbitration.4 The unfair practice case was thereafter placed in abeyance.
By June 19, 2012, CFA decided not to represent Liu at his arbitration regarding:
(1) the denial of tenure and promotion; and (2) the issuance of the Penal Code section 626.4
order banning him from campus grounds. As CF A controlled access to arbitration on these
two issues, and Liu could not proceed to arbitration without CF A's concurrence, the ALJ
scheduled September 11-14, 2012, for formal hearing on these two issues-denial of
Four of Liu's grievances covered the same allegations in the PERB complaint, i.e., the
denial of his promotion and tenure, his suspension and termination and his temporary exclusion
from the CSUEB campus pursuant to Penal Code section 626.4. The factual scenario
regarding the denial of tenure and promotion and the issuance of the Penal Code section 626.4
order banning him from campus grounds are discussed in further detail below.
4

promotion and tenure, and the Penal Code section 626.4 ban. The suspension and termination
issues remained deferred to arbitration.
An arbitration hearing was conducted on August 21-24, and September 17-18, 2012.
The details of this hearing are described below.
Quashing of Liu's Subpoena
During the PERB formal hearing, Liu sought a subpoena to obtain a memorandum
entitled "Report on Review of Dean Terri Swartz" (Report), which was sent by the "Review
Committee for the Dean and Associate Dean, College of Business and Economics, 2010-2011"
(Review Committee) to CSUEB President Mohammad Qayoumi (Qayoumi) on May 12, 2011.
The ALJ reviewed the Report in camera and quashed the subpoena, on the grounds that
the material contained in the Report was irrelevant to detennining whether Qayoumi's decision
to deny Liu tenure and promotion was affected by Liu's grievance-filing activity.
The ALJ proceeded with the evidentiary hearing. Post-he!lring briefs were submitted
on November 8, 2012, and the proposed decision issued on May 8, 2013. Timely exceptions
were filed by Liu and a timely response to those exceptions was filed by CSUEB.
FACTUAL SUMMARY
Tenure and Promotion Process at CSUEB
The retention, tenure and promotion (RTP) process, set forth in the CBA and in
CSUEB's RTP Policy and Procedures, is a multi-step process where an assistant professor is
evaluated at the department and college levels as to retention, and the department, college and
university levels as to tenure and promotion (TP). At each level, a faculty committee,
consisting of rank-and-file, full-time, tenured professors, elected by their peers, evaluates the
assistant professor. After the three-member department RTP faculty committee (Department
5

Faculty Committee) conducts its evaluation, it prepares a recommendation report and forwards
it to the department chair. The department chair then issues his/her recommendation.
At the college level, the five-member college TP faculty committee (College Faculty
Committee) evaluates the candidate and forwards its recommendation report to the college
dean. The college dean similarly prepares a recommendation report and forwards it to the
university level. At the university level, the five-member university TP faculty committee
(University Faculty Committee) prepares and forwards its report to the university president.
The final decision as to tenure and/or promotion belongs to the university president.
The faculty recommendation reports are prepared after the committees review the
assistant professor's working personnel action file (WPAF), dossier and student evaluations.
Each committee level reviews the same source documents presented by the assistant professor
and the prior recommendation reports submitted by the prior committees and department
chair/college dean. The candidate being reviewed receives a copy of each recommendation
report and may submit a letter of rebuttal to each negative recommendation.
All faculty committees and the department chair/college dean/university president are
charged with making their recommendation/decision without professional or personal bias.
The University Faculty Committee is charged with determining whether bias played a role in
the recommendation(s) at the lower level(s). Each faculty committee reviews the candidate in
five areas: (1) possessing the requisite degree; (2) instructional achievement (teaching);
(3) academic achievement (publications, papers, speaking engagements, etc.); (4) university
service (participating in various university committees, etc.); and (5) community service
(participating in local or state government boards and supervising community service projects).
These five areas are usually reduced to three areas: instructional achievement, academic
achievement, and university and community service.
6

Liu's Employment at CSUEB
CSUEB hired Liu as an assistant professor to work in the college of business and
economics, department of management and finance5 in the 2005-2006 academic year.
For each year until the 2010-11 academic year, the faculty committee unanimously
recommended Liu's retention, although beginning in the 2008-2009 academic year, he was
warned that his relative lack of published working papers rendered him not "academically
qualified/professionally qualified." Liu attempted to obtain "early tenure," but this was.
denied. In May 2008, Dean Teresa Swartz (Swartz) "reluctantly" supported retention for Liu
for the 2008-2009 academic year. 	She cited student complaints about his attitude and behavior
in the classroom and the lack of progress in his journal productivity, despite the fact that he
had been given a "significant block of time to facilitate his research activities." However, a
year later in May 2009, Swartz supported Liu for retention and commended him for progress in
his academic achievement and university and community service.
On November 15, 2010, the Department Faculty Committee voted unanimously to
recommend against promoting Liu to associate professor. Two days later, Liu filed his first
grievance. This grievance, filed with the office of the pro;ost,6 alleged that Liu's dean
5 The department's name was later changed to the department of accounting and
finance.
6 The record does not indicate why Liu initially filed his grievances with the office of
the provost. Article 10 of the CBA ("Grievance Procedure"), subsections 10.3 and 10.4, state
that a grievant "may file a Level I grievance with the President ... " (Respondent Exh. 202,
p. 2), and that the "appropriate administrator may refuse consideration of a grievance not filed
on a grievance form required by this Article." (Id.) According to subsection 10.2(d), the term
"appropriate administrator" means "the individual who has been designated by the President to
act pursuant to the procedures set forth in this Article." (Id.) The record does not indicate
whether or not the CSUEB president designated the office of the provost to receive Liu's
grievances. Subsection 10.11 ("Appeal to the Faculty Hearing Committee") states, in relevant
part, that "[i]n the event the grievance is not settled to the grievant's satisfaction at the Level I
meeting or by the Level I response by the appropriate administrator, the individual employee
grievant ... may file a grievance appeal with the Academic Vice President/Provost President
7

(Swartz) allegedly made it difficult for Liu to obtain teaching releases for the Winter 2010
academic term.
On December 17, 2010, the Department Faculty Committee issued its 16-page
"Subsequent Tenure Recommendation" and "Subsequent Promotion Recommendation" after
consideration of Liu's rebuttal. The committee revised its vote to a unanimous
recommendation against tenure and upheld its original unanimous recommendation against
promotion. The committee stated other deficiencies which Liu failed to address including:
Liu's high grading scale and distribution and unfavorable student comments in their
evaluations. Swartz was not part of this committee.
On January 4, 2011, Liu filed a second grievance with the office of the provost
complaining about the department faculty report recommendation against his tenure and
promotion.
On January 13, 2011, Department Chair Micah Frankel (Frankel) issued two
memoranda, respectively, agreeing with the Department Faculty Committee to recommend
against granting tenure and promotion to Liu. Frankel went into more detail when reviewing
the comments of student evaluations, both positive and negative. The negative student
comments covered cancelling class early; inappropriate sexual jokes; and difficulty in
understanding Liu's English. Some of these negative comments were repeated over multiple
classes and years.
Frankel's memo also cited a number of concerns set forth in other faculty committees,
as well as his prior reports/recommendations. Frankel mentioned his observations of how Liu
systematically attempted to intimidate faculty through bullying behavior. Frankel admitted
that he issued Liu prior favorable retention recommendations, but distinguished between the
or designee ... " (Id. at p. 4) The record does not indicate whether Liu believed his initial
grievances were governed by subsection 10.11.
8

R TP procedural standards for retaining an assistant professor and granting tenure and/or
promoting to an assistant professor.
Frankel testified that he could not state whether he knew Liu had filed any grievances at
the time he issued his recommendation. He admitted that at some time, he found out that Liu
filed grievances, but it never factored into any of his decision-making.
On February 7, 2011, the College Faculty Committee, consisting of Professors
Gary McBride (McBride), Ching-Lih Jan, Anthony Lima, Kenneth Pefkaros, and
Norman Smothers, issued its reports recommending by four votes to one that Liu be denied
tenure and promotion. The reports were almost identical in content. The reports noted Liu's
overall positive ratings by student evaluations, but that on average he gave higher grades than
the department average and he sometimes cut class short and told inappropriate jokes. The
majority believed that Liu' s dossier did not contain enough evidence to substantiate
performance and promise into the future in the area of instructional achievement. In regards to
academic achievement, the committee noted that Liu had three published articles and one
article in submission, which did not contain enough evidence to substantiate performance and
promise into the future. The majority believed Liu's university and community service to be
minimal. The one dissenting committee member strongly objected to the majority's
conclusions and reasoned that Liu should be granted tenure "because he has shown promise
and will likely continue to contribute into the future to the development of the University in the
areas of instructional achievement, professibnal achievement, university service, and
community service." (Respondent Exh. 226, p. 4.) The dissenting member reasoned that Liu
should be promoted because "Dr. Liu has shown effectiveness in the areas of instructional
achievement, professional achievement, university service, and community service, and that
promotion to the rank of Associate Professor should be granted." (Respondent Exh. 227, p. 4.)
9

On February 18, 2011, Liu filed a grievance alleging that Frankel and Professors
Nancy Mangold (Mangold) and McBride violated college policy by not holding office hours in
accordance with that policy. Liu filed another grievance on the same day alleging that Frankel
manipulated the summary sheet of the Fall of 2010 teaching evaluation statistics "out of self-
interest." (Respondent Exh. 230.)
On March 8 and March 15, 2011, Swartz affirmed the recommendations of the lower
levels of review that Liu not be granted promotion or tenure.
Between April 1 and April 26, 2011, Liu filed three more grievances alleging that
Frankel continued to violate the office hours policy; that Swartz "spoke to him in a finn tone"
when Liu was checking his e-mails at a computer; and that Swartz awarded her "favorite"
professors a grant of $13,999 for publications which Liu described as "ill-made research
policy."
On April 27, 2011, the University Faculty Committee voted 4-1 that Liu be granted
tenure, but denied promotion by a vote of 3-2. From May 5 to 27, 2011, Liu filed six more
grievances, most of which were directed at Frankel and Swartz, complaining about their
assignment of non-finance professors to teach finance courses, permitting McBride to engage
in a full-time business in exchange for his allegedly false statements against Liu in the RTP
process, Swartz' appointment of a friend of hers to a directorship at CSUEB, Frankel's failure
to conduct meaningful academic research in years, and the purchase of a 30-inch monitor for
the dean's office. On May 31, 2011, Liu e-mailed Qayoumi informing him that Liu believed
he was going to be investigated by CSUEB because he had been documenting alleged
corruption.
On June 1, 2011, Qayoumi issued a letter stating that he was denying Liu tenure,
because Liu' s WP AF demonstrated that he did not meet the university standards in the areas of
10

instructional achievement, academic achievement and university and community service. Liu
was also notified that his next academic year (2011-2012) would be his final year of service
(terminal year notice). 	Liu was informed that ifhe wanted to have his denial of tenure
reconsidered, he should provide new evidence in the three areas. On June 8, 2011, Qayoumi
issued a letter stating he was not approving Liu for promotion to associate professor as Liu did
not meet the university standards in the areas of instructional achievement, academic
achievement and university service. Qayoumi testified without contradiction that he actually
made the decisions regarding denial of tenure and promotion about a week before the issuance
of the June 1, 2011 and June 8, 2011 letters, respectively. 7
Liu filed five more grievances between June 9 and 30, 2011, alleging that he had been
unfairly denied tenure and promotion.
In addition to the grievances, Liu filed the unfair practice charge in this case on
September 30, 2011, which alleges that CSUEB violated HEERA section 3571(a) by denying
him tenure and promotion, restricting him from campus grounds, and disciplining him for
engaging in the protected activities of filing grievances and participating in a grievance
hearing. On January 9, 2012, Liu amended his unfair practice charge to include allegations
that his termination from employment in November, 2011 also constituted retaliation for his
grievance filings, although he did not specifically allege that his tennination was done in
retaliation for filing this unfair practice charge. On March 27, 2012, the Office of the General
Counsel issued the complaint in this case, which included the allegation that Liu's tennination
was done in retaliation for his filing the original unfair practice charge.
7 The ALJ credited Qayoumi's testimony on this subject, and Liu presented no evidence
to discredit Qayoumi's testimony and articulated no reason the ALJ's crediting this testimony
should be disturbed.
11

Employee Complaints About Liu
Beginning March 1, 2010, CSUEB received complaints from other employees about
Liu's conduct, including verbal altercations and related invasion of personal space, as well as
stating that he would "fight to the death" over the right to teach a finance course. Campus
police were called in on some of these complaints, and Liu received a reprimand for
misconduct on September 20, 2010.
On January 6, 2011, CSUEB Police Chief Jan Davis (Davis) convened a threat
assessment team meeting to discuss whether to order Liu to a fitness-for-duty examination.8
CSUEB Interim Associate Provost Linda Dobb (Dobb) explained how Liu was nervous about
his tenure status, which was making the rest of the staff"nervous and jumpy." Dobb recounted
some of Liu's past behavior as reported by various CSUEB employees, including kicking an
office door, slamming something on his desk, taking photographs of staff offices, getting too
close to people, suddenly appearing in hallways and bathrooms and asking, "[i]sn't [it] strange
we are both here," requesting to record meetings, and loitering in the parking lot. Swartz
stated that other staff were seeking employment elsewhere because of Liu's behavior, and she
was frightened over Liu's statement that he would "fight to the death" over the right to teach a
finance course. Davis wanted to increase university police presence when Liu received the
next negative letter related to his tenure. Liu was also accused of harassment by other faculty.
Dobb played no role in any level of review of Liu's tenure or promotion.
The record does not indicate whether the threat assessment team issued a particular
recommendation and, if so, to whom.
12

In July 2011, CSUEB provost office staff contacted the president's office and stated
that they were frightened of Liu and did not want Liu to come to the provost's office again.9
The president's chief of staff directed Dobb to "handle it." Dobb discussed the matter with the
director of human resources and they agreed that Liu could bring his grievances to the
department of human resources, and human resources staff would take the grievance(s)
upstairs to the provost's office. On July 15, 2011, Dobb sent Liu a written notification stating
that CSUEB had received a complaint of Liu's behavior from the provost's office staff, and
that ifhe was to deliver anything to the office of the provost, he was to use the campus mail or
personally deliver it to the receptionist at the human resources office.
On August 24, 2011, Provost James Houpis (Houpis) suspended Liu from
September 19 to December 13, 2011, because of the conduct described above and additional
charges, including intimidating a faculty member, attaching a global positioning system
tracking device to the automobile of a faculty member to monitor his whereabouts, and taking
photos of students without justification.
On September 28, 2011, Liu dropped off a grievance package at the president's office
and then walked over to the office of the provost to drop off a copy of the same documents.
The door was locked, and when employee Gina Traversa came to the door, she told Liu to go
to the human resources office and not to come to the provost office. Liu' s actions were in
violation ofDobb's July 15, 2011, directive to him to refrain from delivering materials in
person to the office of the provost.
On Friday, September 30, 2011, Liu sent an e-mail to the human resources director that
addressed the human resources staff and made a reference to "killing" them. Campus police
believed that Liu's e-mail was attempting to intimidate the human resources staff. CSUEB
Dobb was unaware at the time that her staff contacted the president's office about Liu.
The record does not specify why the staff said they were frightened.
13

Police Chief James Hodges (Hodges)10 convened a threat assessment team meeting11 on
September 30, 2011, between 2:00 p.m. and 3:00 p.m., at which time the team decided that
immediate action needed to be taken pursuant to Penal Code section 626.4 to order the
withdrawal of the University's consent for Liu to be on campus for 14 days. 12
Chief Hodges contacted CSUEB Chief of Staff Don Sawyer (Sawyer) to discuss getting
authorization for the Penal Code section 626.4 exclusion order. Chief Hodges discussed all of
the details of the basis for the order with Sawyer. As President Leroy Morishita13 (Morishita)
10 Hodges had replaced Davis as Police Chief.
11 Present were eight team members: Nyassa Love of Risk Management, Human
Resources Manager Andre Johnson, Director of Accessibility Services Katherine Brown,
University Police Department Commander Kirk Gaston, Associate Vice President of Student
Affairs Stan Hebert, Director of Student Health and Counseling Andrea Wilson, Chief Hodges
and Dobb. Dobb was present telephonically and contributed as a team member.
12 Penal Code section 626.4 states, in relevant part:
(a) The chief administrative officer of a campus or other facility
of a community college, a state university, the university, or a
school, or an officer or employee designated by the chief
administrative officer to maintain order on such campus or
facility, may notify a person that consent to remain on the campus
or other facility under the control of the chief administrative
officer has been withdrawn whenever there is reasonable cause to
believe that such person has willfully disrnpted the orderly
operation of such campus or facility.
( c) Consent shall be reinstated by the chief administrative officer
whenever he or she has reason to believe that the presence of the
person from whom consent was withdrawn will not constitute a
substantial and material threat to the orderly operation of the
campus or facility. 	In no case shall consent be withdrawn for
longer than 14 days from the date upon which consent was
initially withdrawn.
13 President Qayoumi left CSUEB on July 1, 2011.
14

was out-of-town, Sawyer telephoned President Morishita who gave authorization to issue the
order. Sawyer then communicated the authorization to ChiefHodges. 14
University police department officers served Liu with the Penal Code section 626.4
order near his office at approximately 4:33 p.m., on September 30, 2011. Liu was informed
that he was forbidden to return to campus, and ifhe returned during the 14-day period, he
would be arrested.
On November 3, 2011, Houpis issued the final disciplinary letter terminating Liu's
employment effective November 21, 2011, for threatening other faculty members,
unauthorized distribution of materials in other professors' classrooms, communicating with the
office of academic affairs despite previous admonishments to refrain from such conduct,
writing harassing and threatening e-mails to the human resources staff, disrupting the orderly
operation of the CSUEB campus by the aforementioned conduct, lurking outside of other
professors' offices during their office hours, identifying another professor as a faculty member
whose students have a low average "GP A," and using e-mail to threaten the health and safety
of Liu's fellow employees in violation of the CSUEB Acceptable Computing Use Policy and
Workplace Safety and Security Policy.
Liu appealed his dismissal by letter to CSUEB President Morishita on November 5,
2011, invoking Article 19.lOa of the CBA. 15 He reiterated his intent to arbitrate his suspension
14 Chief Hodges explained that he had authority to issue the Penal Code section 626.4
order without the University president's authorization in exigent circumstances, but whenever
he can, he receives authorization from the University president.
15 The record also contains an Individual Grievance Fonn dated November 19, 2011
which also alleges that Morishita terminated Liu's employment in retaliation for Liu's exercise
of grievance rights. On this form Liu checked a box indicating that he elected the "faculty .
hearing c01mnittee (the statutory procedure)" as the method to determine the merits of his
grievance. However, subsequent events show that Liu and CSUEB intended to submit this
grievance to binding arbitration as provided in Articles 19 .13 and 19 .14, which prescribes a
procedure for agreeing to an arbitrator, or seeking assistance from the American Arbitration
15

and dismissal on May 18, 2012, in the pre-trial hearing conducted by the ALJ regarding CSU's
motion to defer.
Arbitration of Deferred Grievances
Liu represented himself at the arbitration hearing, with Attorney Mark Hostetter
(Hostetter) present on some days as his advisory attorney. The arbitration hearing occurred on
August 21, 22, 23, and 24, and September 17 and 18, 2012.
The issues presented to the arbitrator were as follows:
(1) whether there was just cause for Liu' s suspension; and
(2) whether there was just cause for Liu's termination.
Both sides acknowledged in opening argument that Liu would be raising the argument
that CSUEB retaliated against Liu because he had engaged in HEERA protected activity.
Arbitrator Catherine Harris (Harris) indicated that Liu's argument that his pre-termination
grievance filing activity may have had a bearing on his termination had potential relevance.
Liu raised the issue of his filing of the instant unfair practice charge as protected activity in his
opening statement, and he engaged in cross-examination of CSUEB's witnesses at multiple
times regarding his filing of the unfair practice charge, without objection from CSUEB's
attorney. It is also clear from the ALJ's pre-hearing order deferring the unfair practice
complaint to arbitration, that the parties believed the arbitrator was to consider the question of
whether Liu was terminated because he filed an unfair practice charge on September 30, 2011.
From a review of the official arbitration transcript, the ALJ found that during the first
four days of the arbitration hearing, Liu caused delay in the proceedings by constantly
interrupting CSUEB's direct examination to make an argument in support of his case;
providing unsworn testimony to contradict witnesses; asking questions about the City of Bell;
Association (AAA), and striking from a list provided by the AAA. By February, 2012, Liu and
CSUEB were in correspondence with AAA about the selection process.
16

prolonging witness testimony by editorializing; summoning the California Highway Patrol to
take a report against California State University's (CSU) counsel; refusing to proceed with the
hearing for a three-hour period, because he needed to speak to Hostetter; voicing objection to
testimony he believed to be inaccurate; and arriving an hour late for the hearing. The arbitrator
later determined in her final award that these actions by Liu unduly prolonged the hearing and
interfered with CSUEB's presentation of its case-in-chief.
On September 16, 2012, the day before the September 17, 2012, hearing date, Liu sent
an e-mail to CSUEB Vice Chancellor of Human Resources Gail Brooks accusing CSUEB
witnesses of perjury. He sent copies of this e-mail to some of the witnesses, some of whom
were scheduled to testify at the arbitration hearing. After this, Liu e-mailed some of these
addressees asking for their physical addresses so that he could serve a legal document related
to a perjury charge. He demanded a response by the afternoon of September 18, 2012.
At the September 17, 2012 hearing, Arbitrator Harris expressed concern over Liu's
e-mail sent the day before. Harris stated that she was concerned that witnesses subpoenaed to
testify at the arbitration would feel insecure about presenting themselves to give their
testimony. Harris ordered Liu to refrain from sending additional e-mails to witnesses, and
allowed the hearing to proceed.
Liu eventually walked out of the arbitration hearing on September 18, 2012, after the
arbitrator refused to allow him to put on his case-in-chief before CSUEB had completed its
case-in-chief.
On September 19, 2012, Liu wrote the arbitrator that he had no intention ofreturning to
the arbitration at any time. He asked the arbitrator to find in his favor based upon the evidence
presented in his cross-examination of the CSUEB witnesses and voluminous documents that he
left with her on September 18, 2012. The arbitrator replied to Liu that absent an agreement to
17

conclude the matter in a manner which would allow both parties the right to have a full
opportunity to present their cases, the arbitrator would entertain a motion to dismiss the appeal
or allow CSUEB to complete its case. On October 2, 2012, CSU filed a motion to dismiss
Liu' s appeal of his suspension and dismissal. Liu filed his written opposition to this motion on
October 16, 2012 and urged Harris to rule in his favor based on the evidence he brought forth
on his cross-examination of CSU witness and on the material he left with her when he left the
arbitration hearing.
On November 15, 2012, Harris issued her "Arbitrator's Rulings on Cross Motions of
Parties and Final Award." The arbitrator dismissed Liu's appeals of the discipline imposed on
him. She found that Liu failed to adhere to AAA Labor Arbitration Rules 19 and 2616;
interfered with the CSUEB's presentation of its case; defied the arbitrator's directives and
rulings; and undermined the integrity of the arbitration hearing. The arbitrator specifically
declined to resolve the "just cause" issue as it pertains to Liu's suspension and termination.
Nor did she resolve the statutory issue: whether Liu was retaliated against for engaging in
protected activities.
16 According to Harris' award, AAA Labor Arbitration Rule 19, stated as of the date the
award was issued:
The parties shall respond to requests for hearing dates in a timely
manner, be cooperative in scheduling the earliest practicable date,
and adhere to established deadlines and hearing schedules.
According to Harris' award, AAA Labor Arbitration Rule 26, stated as of the date the
award was issued:
The arbitrator may vary the nonnal procedure under which the
initiating party first presents its claim, but in any case shall afford
full and equal opportunity to all parties for the presentation of
relevant proofs.
18

PROPOSED DECISION
The ALJ :framed the issues before him as follows:
1. 	Did CSUEB retaliate against Liu by denying him tenure and
promotion because of the grievances he filed and grievance
meetings he attended?
2. 	Did CSUEB retaliate against Liu by issuing a Penal Code
section 626.4 order restricting him from campus grounds for
14 days because of the grievances he filed and grievance
meetings he attended?
3. 	Should Arbitrator Harris's award be deemed repugnant to
HEERA?
Applying the Novato test (Novato Unified School District (1982) PERB Decision
No. 210 (Novato)), 17 the ALJ first identified the protected activities Liu engaged in-.filing
grievances and attending meetings attendant to the grievance process. Without dispute, these
are protected activities under HEERA section 3565. (Trustees of the California State
University (2009) PERB Decision No. 2038-H.)
Liu also claimed that his sending numerous e-mails very critical of his Department
Chair (Frankel) and College Dean (Swartz) constituted protected activity. These e-mails
included: a February 1, 2010, e-mail to Qayoumi and Houpis criticizing Swartz for hiring
"low-quality candidates," paying them above-market salaries, and treating her :friends
favorably; June 1 and 29, 2010, e-mails to Houpis that Liu was treated disfavorably by not
being assigned to teach an options and futures course; a September 17, 2010, e-mail to Dobb
expressing Liu's personal views that Swartz pushed staff to file false police reports against
7 Under Novato, supra, PERB Decision No. 210, to succeed in a charge alleging that
an employer discriminated or retaliated against an employee on the basis of protected activity,
the charging party must show that: ( 1) the employee exercised rights protected under HEERA;
(2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse
action against the employee; (4) the employer took action because of the exercise of protected
rights.
19

him, played favorites, was unfair to him in the RTP process, and jeopardized accreditation
based on the candidates she hired; and a May 31, 2011, e-mail contending that he was being
investigated for his disclosure of office-hour policy violations and the finance department's
purchase of a 30-inch monitor.
The ALJ held that Liu's e-mails to CSUEB staff did not constitute protected activity
under HEERA, because they were more in the nature of "a complaint undertaken for his own
benefit versus a continuation of group activity." (Proposed Dec., p. 58.)
1. 	Retaliation By Denying Tenure And Promotion To Liu
With regard to the protected grievance-filing activity, the ALJ found that the relevant
decision-makers were unaware of Liu' s grievance activity before denying him
tenure/promotion. Qayoumi's decision to deny tenure/promotion was based upon Liu's
marginal performance in the three areas of instructional achievement, academic achievement
and university and community service. The ALJ found that Liu failed to demonstrate a prima
facie case ofretaliation for the denial of tenure/promotion and dismissed this allegation.
The ALJ also found no evidence of subordinate bias liability under County of Riverside
(2011) PERB Decision No. 2184-M (Riverside). 18 He noted that the concerns cited by
Qayoumi in his decision to deny tenure and promotion (lack of recent published papers,
In Riverside, supra, PERB Decision No. 2184-M, the Board held, in relevant part:
These facts present a classic scenario that triggers application of
the subordinate bias liability theory. Under this theory, a
supervisor's unlawful motive may be imputed to the
decisionmaker when: (1) the supervisor's recommendation,
evaluation, or report was motivated by the employee's protected
activity; (2) the supervisor intended for his or her conduct to
result in an adverse action; and (3) the supervisor's conduct
caused the decisionmaker to take adverse action against the
employee.
(Riverside, p. 15, citations omitted.)
20

minimal involvement in university and community service) had been raised by the Department
Faculty Committee before Liu filed his first grievance on November 17, 2010. Moreover, the
ALJ concluded that Liu failed to demonstrate that the members of the two faculty committees
were motivated by Liu's protected activity.
2. 	Retaliation By Issuing A Penal Code Section 626.4 Order
The ALJ held that, although the proximity of Liu's grievances and the related grievance
meetings on May 31, 2011 (Grievance One); March 9, 2011 (Grievance Two); May 9, 2011
(Grievance Six, informal meeting); and May 31, 2011 (Grievance Ten) are sufficiently close in
time to establish a temporal proximity between the protected activity and the Penal Code
section 626.4 order on September 30, 2011, Liu failed to demonstrate that CSUEB's threat
assessment team's recommendation to issue the order or Morishita's confirmation of the
issuance of the order was unlawfully motivated by his protected activities. The ALJ
determined that Liu failed to demonstrate the actual decision-makers' knowledge of his
protected activity or subordinate bias liability, and concluded that Liu failed to demonstrate a
prima facie case of retaliation with respect to the University's issuance of a Penal Code
section 626.4 order. The ALJ dismissed the retaliation allegation.
3. 	Repugnancy Review
As the proposed decision notes, PERB Regulation 32620(b)(6) requires the Board agent
to place an unfair practice charge arising under HEERA in abeyance if the dispute is subject to
final and binding arbitration and to dismiss the charge at the conclusion of the arbitration
process "unless the party demonstrates that the ... arbitration award is repugnant to the
purposes of ... HEERA."
Based on the standards set forth in Dry Creek Joint Elementary School District (1980)
PERB Order No. Ad-8la (Dry Creek), in which the Board adopted the post-arbitration deferral
21

standard enunciated by the National Labor Relations Board (NLRB) in Spielberg
Manufacturing Company (1955) 112 NLRB 1080 (Spielberg), the ALJ found it appropriate to
defer to the arbitrator's award dismissing Liu's appeals of his suspension and termination.
(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: 	(I) 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 was not "clearly repugnant to the purposes and
policies of the Act." (Id. at p. 6.)
The ALJ noted that Liu's suspension and termination retaliation issues were never fully
adjudicated at the arbitration hearing. However, the ALJ found that all four of the Santa Ana,
supra, PERB Decision No. 1951 repugnancy elements weighed in favor of deferring to the
arbitration process. He addressed each of Liu's objections to the arbitration process.
a. 	Selection/Appointment of Arbitrator Harris
The ALJ dismissed Liu's allegation that he was never allowed to participate in the CBA
procedure in selecting an arbitrator, noting that he was allowed to do so, but did not do so in a
timely manner. (ALJ's Proposed Dec., p. 69.)
b. 	Arbitration Hearing-Related Allegations
Regarding Liu's decision to walk out of the arbitration hearing before presenting his
case-in-chief, the ALJ wrote:
A policy question therefore arises as to whether Liu should be
able to avoid the deferral order by walking out of a hearing for
which he was unhappy in how it was proceeding and, as a result,
the deferral issue was not "fully presented." To allow Liu to
escape the deferral order by his obstructionist and contumacious
conduct would be to put the control of the enforcement of the
deferral order in his hands rather than the ALJ issuing the order.
While Liu was not happy with the speed of the arbitration
22

proceedings, he greatly contributed to its delay. Additionally, the
two disciplinary actions involved multiple charges and witnesses.
The arbitration record supports the assertion that the arbitrator
was willing to hear his protected activity defense and rule on it.
In light of the unusual circumstances surrounding the conclusion
of these proceedings, and the arbitrator's willingness to hear his
defense, the element that the arbitrator was presented generally
with the facts relevant to resolving the unfair labor practice has
been met.
(Proposed Dec., p. 68.)
Addressing Liu's contention that the arbitration proceedings were not fair and regular
because they were unduly time-consuming, the ALJ noted that the disciplinary actions
included multiple charges and several witnesses. Because Liu himself interfered with the
arbitrator's ability to provide both parties with an equal opportunity to present evidence, the
ALJ concluded that "any irregularity of the proceeding was caused by Liu." (Proposed Dec.,
p. 69.)
c. 	Post-Arbitration Hearing Events
The ALJ dismissed Liu's contention that because the arbitrator's November 15, 2012
award was untimely issued, it should not be binding. The ALJ held that the arbitrator's award
(which ruled on CSUEB's motion to dismiss Liu's action and Liu's responsive
opposition/motion) was timely, since the governing CBA did not dictate a time deadline for the
issuance of awards based upon motions. (ALJ's Proposed Dec., pp. 70-71.)
The ALJ also dismissed Liu's contention that the arbitrator could not dismiss his
appeals, but could only order the hearing to continue in his absence. Relying on Voluntary
Labor Arbitration Rule 27 of the AAA, 19 the ALJ concluded that although it was within the
arbitrator's authority to proceed in the absence of a party, the arbitrator's decision to dismiss
Liu's case was "not palpably wrong," given the "continuum of interference and misconduct"
19 Rule 27 allows an arbitration to proceed in the absence of a party if a party fails to
appear at the arbitration hearing after it has been noticed.
23

which culminated in Liu's ultimatum to the arbitrator demanding that she allow him to put on
his case then and there, or he would walk out.
The ALJ concluded that Liu had not met his burden to show that the arbitration
proceedings and the award were repugnant to the purposes of HEERA.
LIU'S EXCEPTIONS
Liu filed 37 pages of exceptions, along with a 56-page supporting brief. These
exceptions can be summarized as follows:
• 	The ALJ indicated his desir~ to reduce his caseload, and dismissed the case to
reduce his caseload;
• 	None of the charges should be deferred to arbitration;
• 	CSUEB's attorney coached CSUEB's witnesses to lie, and CSUEB's witnesses
committed perjury on the stand;
• 	Harris was not selected according to the AAA rules;
• 	CSUEB 's attorney bullied Liu on the stand at the arbitration hearing;
• 	The ALJ excluded grievance documents introduced by Liu;
• 	Harris violated AAA's rnles and CBA provisions, followed the CSUEB attorney's
hand signals, needlessly dragged out the duration of the arbitration hearing, and
missed the deadline to issue the arbitration award;
• 	The ALJ chose the date of issuance of his proposed decision to deprive Liu of the
opportunity to file exceptions;
• 	The ALJ' s proposed decision is contrary to the preponderance of the evidence;
• 	Liu's e-mails to the CSUEB administration are a logical continuation of protected
group activity of attempting to oust Swartz;
24

• 	The relevant decision-makers in charge of denying Liu's tenure and promotion had
full knowledge of Liu's grievances at each level of Liu's tenure and promotion
review, and they retaliated against Liu because of the filing of his grievances;
• 	Harris' award is repugnant to the purpose of HEERA;
• 	The Penal Code section 626.4 exclusion order constituted retaliation against Liu for
filing grievances and "working with PERB"; and
• 	The ALJ did not address the status of the instant unfair practice charge as protected
activity with regards to CSUEB's Penal Code section 626.4 order.
CSUEB'S RESPONSE TO EXCEPTIONS
CSUEB filed its response to Liu's exceptions on July 8, 2013. CSUEB contends that
Liu' s exceptions are based on conjecture, most of the brief is unintelligible and based on
hearsay allegations, and Liu raises matters that he either did not raise during the evidentiary
hearing or that were not admitted into evidence.20
DISCUSSION
We note that Liu's exceptions fail to cite to any part of the record that contradicts either
the ALJ's proposed decision or CSUEB's arguments. We find that CSUEB has demonstrated
that it had, and acted because of, the alternative non-discriminatory reason based on Liu's
improper workplace conduct. We find that Liu's improper workplace conduct gave the
employer cause for non-discriminatory discipline, and that CSUEB has proved through
independent and competent evidence both the existence of such improper workplace conduct
and that this conduct motivated its response. We explain our reasons for our findings and
address other matters raised by Liu's exceptions in the discussion that follows.
20 Pursuant to PERB Regulation 32300(b) (8 CCR,§ 32300(b)), during the Board's
consideration of this matter, we have disregarded any matters outside the hearing record.
25

Denial of Tenure and Promotion
As the ALJ did, we apply the Novato, supra, PERB Decision No. 210 test in reviewing
Liu's exceptions to the ALJ's conclusion that Liu failed to establish that he was denied tenure
and promotion in retaliation for his protected activities. It is incontrovertible that invoking the
procedures and protections of a collective bargaining agreement by filing grievances is
protected activity. (Jurupa Unified School District (2012) PERB Decision No. 2283.)
We agree with the ALJ that Liu failed to establish that any of the decision-makers in
the tenure/promotion process knew of his protected activity.21 A review of the timing of
several of his grievances shows that Liu often filed grievances after he received notice of an
adverse decision by a Department Faculty Committee or College Faculty Committee. His first
grievance was filed on November 17, 2010, two days after the department committee
recommended against tenure. This grievance was not directed at any professor who served
either on the Department Faculty Committee or on the College Faculty Committee, but instead
complained that Swartz did not grant Liu sufficient teaching releases. This grievance, like
virtually every subsequent grievance, was filed with the office of the provost, and the record is
Liu excepts to the ALJ's conclusion that the relevant decision-makers did not know
of his protected grievance filing activity prior to taking adverse action against his employment,
but he cites to no evidence in the record th.at supports this exception. Instead, he cites to
documents he appended to his exceptions (viz. "Exhibits El to ES").
PERB Regulation 32300 (8 CCR, § 32300) states, in relevant part:
( c) Reference shall be made in the statement of exceptions only
to matters contained in the record of the case.
( d) An exception not specifically urged shall be waived.
An excepting party's failure to comply with PERB's regulations renders the appeal
"fatally defective." (Temecula Valley Unified School District (1990) PERB Decision No. 836,
p. 4). We therefore need not consider this exception. However, even if we were to consider
this exception, the record does not support Liu's assertion.
26

devoid of facts showing who was notified of the filing of the grievance, or allegations included
in any grievance, or when they were notified, if they were notified.
Liu's second grievance, filed on January 4, 2011, with the office of the provost,
complains about the Department Faculty Committee report of December 7, 2010,
recommending denial of tenure. The individuals who participated in that committee did not
participate in any further consideration of Liu's tenure, promotion, or subsequent adverse
actions. There is no credible evidence in the record that the actual decision-makers responsible
for denying Liu's tenure and promotion and imposing disciplinary action against Liu (none of
whom were members of the Department Faculty Committee) took such actions in retaliation
for Liu's grievance filed against the Department Faculty Committee.
On January 13, 2011, Frankel supported the recommendation of the Department Faculty
Committee that Liu be denied tenure and promotion. On February 8, 2011, Liu filed the first
of several grievances in which he alleges that Frankel did not keep office hours according to
University policy and unfairly categorized student evaluations.
Liu also filed several grievances against Swartz. His first grievance, filed on
November 17, 2010, complained that she did not give him adequate teaching releases. She was
also identified in his January 4, 2011, grievance alleging that she and the Department Faculty
Committee misrepresented aspects of his academic work in their tenure reports. The record is
devoid of facts showing that Swartz was notified of these grievances or of their allegations,
and if so, when she was notified. Liu has therefore failed to demonstrate employer knowledge
with respect to any adverse action attributable to Swartz.
The next grievance by Liu identifying Swartz was filed on April 25, 2011. This
grievance alleged that she spoke to him in a firm tone. The following day, Liu filed a grievance
against her alleging that she displayed favoritism toward certain professors by awarding them
27

cash grants for undeserving research. Yet Swartz issued her recommendations against Liu' s
tenure and promotion on March 8 and 15, 2011. She, therefore, could not have been motivated
to take this adverse action because of these April 2011 grievances Liu filed against her.22
Liu also criticized Swartz in complaints beginning on February 1, 2010, when Liu
wrote to Qayoumi requesting that Swartz be replaced as dean, because she hired "low-quality"
candidates and over-paid them, divided the faculty, and exhibited unwarranted favoritism
toward her friends on the faculty. The record does not show that Swartz was aware of this
criticism. We note that after this communication to Qayoumi, on May 5, 2010, Swartz
supported the department's recommendation that Liu be retained for the following academic
year.
Absent from the proposed decision is a discussion of Swartz' motivation or knowledge.
Swartz was not called as a witness in this case, so we do not have a first-hand account of what
she knew about Liu's grievance claims and when she knew of them in relation to her decision
to support the faculty committee recommendations denying Liu tenure and promotion.
Nevertheless, we affirm the ALJ's discussion of subordinate bias liability. Swartz was not the
final decision-maker here. Qayoumi was, and the facts in the record support the ALJ's finding
that Qayoumi did not know of any of Liu's grievances when he determined that Liu should not
be granted tenure.
The facts also support the ALJ's conclusion that Qayoumi based his decision to deny
Liu's tenure/promotion on CSU's assessment that Liu's performance in the areas of
instructional achievement, academic achievement and university and community service was
marginal. We affirm the ALJ's findings and conclusions that Liu failed to establish that any of
22 The fonnal level 1 meeting on the January 4, 2011, grievance occurred on March 9,
2011, but the record does not indicate whether she was present at this meeting.
28

the faculty committee members who generated the detailed recommendations against
tenure/promotion were aware of his grievances or were motivated by this protected activity
when they made their recommendations. We note, for example, that some of the same
concerns about Liu's performance had been raised as early as March 1, 2010, eight months
before he filed his first grievance.23 In sum, Liu has failed to establish any factual or legal
basis to attribute to Qayoumi any bias that may have been harbored by any of his subordinates,
let alone that any subordinates harbored bias based on Liu's grievance activities. For these
reasons, we agree with the ALJ's conclusion that Liu failed to establish a prima facie case for
retaliation or discrimination on the basis of his protected activities.
Even assuming, arguendo, that Liu did establish a prima facie case for retaliation in
CSUEB' s denial of tenure/promotion, we join with the ALJ in concluding that CSUEB
established that it had a legitimate non-discriminatory reason for denying Liu tenure/promotion
and that it acted because of that non-discriminatory reason and not because of Liu' s protected
activity.
In adjudicating a charge of employer discrimination or retaliation where the employer
alleges it was justified in its actions because of the charging party's misconduct, PERE uses
the following burden-shifting analysis, articulated most recently in Palo Verde Unified School
District (2013) PERB Decision No. 2337:
Our analysis of the prima facie case and the affinnative defense
accords to each party certain burdens. Once the charging party
establishes that the responding party was motivated in whole or
part by statutorily protected conduct, the burden shifts to the
23 In March 2010, the Department Faculty Committee recommended 2-1 to retain Liu
for the 2010-2011 academic year, but the committee report noted that he exaggerated his
accomplishments, and that the grade point averages in his classes were higher than those of
other instructors. Liu did send a memo to Qayoumi on March 10, 2010, complaining that the
Department Faculty Committee was prejudiced against him, but this was not a grievance.
Because this memorandum raised only individual, as opposed to collective concerns, we do not
consider it to be activity protected under HEERA.
29

respondent to demonstrate that the employer had, and acted
because of, an alternative non-discriminatory reason. Where such
alternative reason is alleged to be improper workplace conduct of
the charging party, which is claimed to give the employer cause
for non-discriminatory discipline or discharge, the employer must
prove through independent and competent evidence both the
existence of such improper workplace conduct and that this
conduct it [sic] motivated the employer's response.
(Id. at p. 23)
We agree with the ALJ that CSUEB demonstrated that it had, and acted because of, an
alternative, non-discriminatory reason for denying Liu tenure and promotion. The record
supports the ALJ's factual finding that Qayoumi based his decision on Liu's performance in
the areas of instructional achievement, academic achievement and university and community
service. Qayoumi cited student evaluations that noted Liu's ending classes early, sexual joking
and cancelling classes. Qayoumi also believed that Liu had only minimal involvement in
university and community service and in fact quit one committee because Liu believed it was
too much work. As for academic achievement, Qayoumi noted that Liu did not have any
recently-published papers and had none in the pipeline. All of these concerns had been noted
by faculty committees as early as March 2010, prior to Liu's grievances.
These facts taken as a whole, demonstrate that CSUEB had, and acted upon, a non-
discriminatory reason for denying Liu tenure and promotion.
Penal Code Section 626.4 Order
The ALJ's conclusion that the individuals who decided to exclude Liu from the
university campus pursuant to Penal Code section 626.4 (viz., the threat assessment team
members and Morishita) were unaware of his grievances and participation in grievance
meetings is fully supported by the facts in the record. Liu excepts to this finding, and in
support of this exception cites only to a document that he appended to his exceptions
(viz. "Exhibit H"), without citation to the record. The only evidence in the record to which he
30

cites is a section of the PERB formal hearing transcript in which the ALJ refers to Liu as "a
peaceful person." For reasons discussed above at page 26, we will not consider documents that
were not admitted into the record as supportive of any exception. The fact that the ALJ
referred to Liu as a "peaceful person" has no bearing on whether those who decided to impose
the Penal Code section 626.4 exclusion order knew of his protected activity.
The ALJ did not discuss whether Liu's unfair practice filing motivated CSUEB's
decision to exclude him from campus. Liu's only reference in the exceptions to this issue
consists of a statement, "[r]etaliations on working with PERB should not be deferred to
arbitration."24 Besides this statement, he claims that the arbitrator refused to consider the
PERB filing activity. We do not read this statement as one that complies with PERB
Regulation 32300(c) for the purpose of excepting to the ALJ's failure to consider whether the
filing of the unfair practice charge caused CSUEB to issue the Penal Code section 626.4
exclusion order.25
Even had Liu properly excepted on this ground, based on our review of the record, we
conclude that there is no evidence to support a finding that CSUEB's exclusion order was
issued in retaliation for Liu's filing this unfair practice charge. Although Liu's exceptions
allege retaliation by CSUEB because of the filing of the instant PERB unfair practice charge,
the charge was filed approximately nine minutes before the Penal Code section 626.4 exclusion
_order was served on him. While the charge was technically filed prior to the service of the
order, the charge was clearly filed after Hodges convened the threat assessment team meeting
which led in quick succession that day to the issuance of the order. More importantly, Liu has
24 PERB Regulation 32300 (8 CCR, § 32300) states, in relevant part:
(c) 	An exception not specifically urged shall be waived.
25 We address, infra, Liu's challenge to the deferral to arbitration of his allegation that
he was retaliated against for filing an unfair practice charge.
31

not proven that Hodges knew that the charge had been filed minutes before he served the order.
For this reason, we find that Liu has not sustained his burden of proving that his protected
activity of filing the unfair practice charge could have motivated CSUEB's adverse action of
issuing the Penal Code section 626.4 order.
The day before the Penal Code section 626.4 order was issued, Liu sent a
September 29, 2011 e-mail with a "cc:" line that includes the name "Leroy Morishita," but that
does not include an actual e-mail address for Morishita. The e-mail states: "I am currently
working with [sic] California Public Employment Relations Board regarding the unfair labor
practices at CSUEB, i.e. illegal manipulations by Linda Dobb of the grievance hearing
process." However, Liu introduced neither evidence of the e-mail address that corresponded to
the "Morishita" reference, nor evidence that Morishita or any other relevant decision-maker
saw or learned of the contents of this e-mail prior to the issuance of the Penal Code
section 626.4 exclusion order, or prior to the convening of the threat assessment meeting that
led to the exclusion order. In the absence of such evidence, we deny Liu's exceptions.
Nor can we conclude that Liu's e-mails discussed above, at pages 19-20, motivated
CSUEB to retaliate against Liu by issuing the exclusion order. 	Of the two e-mails that were
arguably protected, only one was sent by Liu prior to the issuance of the Penal Code
section 626.4 order.26 Despite its timing, this e-mail does not affect our decision to affinn the
26 One e-mail, dated August 10, 2011, and addressed to Houpis, acknowledged receipt
by Liu of "discipline package," and asserts that "you may have directly violated California
Faculty Association (CBA) Article 19." There is no indication that this email was sent or
forwarded to anyone other than Houpis, who was not on the threat assessment team which
recommended Liu's exclusion from the campus under Penal Code section 626 and who was
not involved in the decision to issue the exclusion order.
A second e-mail, dated October 12, 2011, and addressed to Hodges, asserts that Liu' s
right to the grievance process "should not be affected by the illegal 626 thing." This post-dates
the exclusion order.
32

ALJ's proposed decision, as Liu points to no evidence that any relevant decision-makers were
aware of this e-mail prior to the issuance of the Penal Code section 626.4 order.
For these reasons, we find that the ALJ's decision with regard to the Penal Code
section 626.4 order is fully supported in the record. Liu presented no evidence to support his
conjecture that the relevant decision-makers behind the Penal Code section 626.4 order had
any knowledge of his grievance activities, unfair practice charge filing, or other protected
activity prior to making their respective decisions.
Other Protected Activity
In addition to his grievance activities and this unfair practice charge, Liu claims that he
engaged in other protected activity that caused CSUEB to deny him tenure and promotion in
retaliation for that activity. He asserts that he was a part of faculty group activity to oust
Swartz (and that such protected activity motivated CSUEB to impose adverse actions against
him). The evidence Liu cites to in support of his claim consists of his own testimony at the
hearing in which he recounted that in the Fall of 2009, he spoke to ten to fifteen other CSUEB
professors whom he believed were organizing an early review of Swartz to have her ousted.27
(Transcript, Vol. II, 108:3-10.) He also cites to his own testimony stating that he
e-mailed and spoke to Mangold about Swartz being "no good," and that he e-mailed and told
Dobb and Frankel that Swartz was "bad." (Transcript, Vol. II, 107:16 to 114:1.)
For Liu's remaining allegations of participation in this alleged group activity, he cites
only to documents he appended to his exceptions (viz. Exhs. Dl to D8), without citations to
exhibits that were entered into the record. The CSUEB exhibits to which he cites (viz. CSUEB
Exhs. 76, 81 and 160) do not appear in the record, as the CSUEB exhibits start at number 200.
The Liu exhibit to which he cites (viz. Liu Exh. 147) also does not appear in the record, as
27 In the same section of the transcript, Liu described his intent to "compare data" with
the other professors, without elaborating on the meaning of this phrase.
33

Liu' s exhibits only reach Exhibit 42. Liu has failed to prove by a· preponderance of admissible
and reliable evidence that his criticisms of Swartz were part of a group effort or that such
activity motivated the CSUEB' s decision to deny him promotion and tenure.
Liu's charge also alleges that a series of e-mails he sent to various faculty members
constituted protected activity for purposes of his retaliation charge. After reviewing the
exhibits admitted into the record in this matter, we could discern only two e-mails which could
conceivably amount to protected activity as an extension of collective activity. (See fn. 26.)
However, both e-mails were sent subsequent to CSUEB's denial of Liu's tenure or promotion.
Therefore, neither e-mail affects our decision to affirm the ALJ's proposed decision with
respect to the denial of Liu's tenure and promotion. Also, nothing in the record shows that
those who made the decision to exclude Liu from campus either knew of these two e-mails, or
if they did, that the content of the e-mails motivated their decision to invoke Penal Code
section 626.4.
Although Liu's exceptions argue that by CSUEB retaliated against him because of the
filing of the instant PERB unfair practice charge, Liu's charge filing date of September 30,
2011, was subsequent to the June 2011 denial of tenure and promotion.
In sum, we affirm the ALJ's findings of fact and conclusions oflaw regarding Liu's
denial of tenure/promotion and the Penal Code section 626.4 order for the reasons discussed
above.
We turn now to the question of deferral. Liu excepts both to the ALJ' s decision of
May 22, 2012, to defer all of Liu's unfair practice allegations to arbitration (the pre-arbitral
deferral decision) and to the ALJ's refusal to consider the arbitrator's award repugnant to
HEERA (post-arbitral deferral).
34

Pre-Arbitral Deferral
Unlike the Educational Employment Relations Act (EERA),28 HEERA contains no
specific provision directing PERB when to defer unfair practice charges to arbitration.29
Nevertheless, PERB Regulation 32620(b)(6) and our case precedents apply the deferral
doctrine to HEERA. (Regents of the University of California (San Francisco) (1984) PERB
Order No. Ad-139-H; Dry Creek, supra, PERB Order No. Ad-8la.) These cases, in turn, make
clear that PERB looks to the deferral doctrine as developed by the NLRB in assessing both pre-
arbitration deferral and post-arbitration repugnancy claims. (Dry Creek.)
When considering whether to defer an unfair practice charge to arbitration, the Board,
following Collyer Insulated Wire (1971) 192 NLRB 837 (Collyer), applies a three-part test:
(1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the
respondent is willing to waive contract-based procedural defenses to the grievance or
arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning
lie at the center of the dispute. In our recent decision, Claremont Unified School District
(2014) PERB Decision No. 2357 (Claremont), we formalized an additional requirement: that
the exclusive representative be willing to arbitrate the dispute if the parties to the unfair
practice case are not the same as the parties to the collective bargaining agreement.
28 EERA is codified at Government code section 3540 et seq.
29 Cf. EERA section 3541.5(a)(2) provides, in pertinent part:
[T]he board shall not .... [,r.] Issue a complaint against conduct
also prohibited by the provisions of the agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration .... The board shall have
discretionary jurisdiction to review the settlement or arbitration
award reached ... solely for the purpose of detennining whether
it is repugnant to the purposes of this chapter.
35

In considering CSUEB's motion to defer all ofLiu's allegations contained in the instant
unfair practice complaint to arbitration, the ALJ determined that the relevant collective
bargaining relationship, which is between CSU and the CF A, was stable. CSUEB was willing
to waive any procedural defenses and permit Liu to file additional grievances challenging the
adverse actions under Article 10.36 of the CBA, prohibiting reprisals for filing grievances. As
to the third prong of the Collyer test, the ALJ determined that retaliation for filing grievances,
an allegation contained in the unfair practice complaint, is also prohibited by Article 10.36 of
the CBA. Thus, the contract covered Liu's allegations that he was denied tenure/promotion,
suspended from employment, and was excluded from the campus pursuant to Penal Code
section 626.4 because these actions were allegedly motivated by Liu's filing grievances.
With respect to Liu's allegation that he was terminated for filing grievances and for
filing this unfair practice charge, the ALJ noted that this adverse action is also covered by the
CBA because Article 19 .16 requires that all disciplinary actions be taken for "cause." Thus,
according to the ALJ, the arbitrator who is presented with the issue of whether discipline was
supported by "cause," must also evaluate evidence of anti-union animus. On that basis, the
ALJ deferred all allegations contained in PERB's unfair practice complaint to arbitration,
including the allegation that Liu was retaliated against for utilizing PERB's remedies, i.e.,
filing this unfair practice charge.
The ALJ issued his written ruling on pre-arbitration deferral on May 22, 2012, in the
form of a notice of abeyance, and denominated it as an interlocutory order. The ruling
included instructions for a party to object to an interlocutory order pursuant to PERB
Regulation 32200.30
30 PERB Regulation 32200 provides:
36

As noted above, the denial of tenure/promotion and the Penal Code section 626.4 issue
returned to PERB, as CFA refused to arbitrate these issues. But Liu excepts generally to the
ALJ' s pre-arbitration deferral order and specifically asserts that it was an error for the ALJ to
defer to an arbitrator his claim that he was retaliated against for filing the unfair practice
charge. This claim has merit.
Under the National Labor Relations Act (NLRA),31 unfair labor practice charges
alleging that employees have been retaliated against for filing unfair labor practice charges are
not deferred for important policy reasons explained in·Filmation Associates, Inc. ( 1977)
227 NLRB 1721 (Filmation):
The prohibition expressed in Section 8(a)(4) ... is a fundamental
guarantee to employees that they may invoke or participate in the
investigative procedures of this Board without fear of reprisal 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 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
A party may object to a Board agent's interlocutory order or
ruling on a motion and request a ruling by the Board itself. The
request shall be in writing to the Board agent and a copy shall be
sent to the Board itself. Service and proof of service pursuant to
Section 32140 are required. The Board agent may refuse the
request, or may join in the request and certify the matter to the
Board. The Board itself will not accept the request unless the
Board agent joins in the request. The Board agent may join in the
request only where all of the following apply:
( a) The issue involved is one oflaw;
(b) The issue involved is controlling in the case;
(c) An immediate appeal will materially advance the resolution
of the case.
31 The NLRA contains an explicit provision in Section 8(a)(4) defining as an unfair
labor practice an employer's discharge or other discrimination "against an employee because
he has filed charges or given testimony under this Act."
37

solely within the Board's province to decide we will not apply the
Spielberg doctrine to such issues.
(Id. at p. 1721, emphasis in original.) (See also McKinley Transport Limited (1975)
219 NLRB 1148.)
Although HEERA does not specifically replicate NLRA section 8(a)(4), it is beyond
doubt that filing unfair practice charges under HEERA and any of the other statutes PERB
administers, and participating in PERB processes, are protected conduct. (Regents of the
University of California (1984) PERB Decision No. 403-H [appearing as a witness in a PERB
unfair practice hearing was deemed protected]; Los Angeles Unified School District (1992)
PERB Decision No. 957; Trustees of the California State University (2008) PERB Decision
No. 1970-H, ALJ Proposed Dec., p. 19.) The same policy considerations articulated in
Filmation, supra, 227 NLRB 1721 apply with equal force to PERB proceedings.
Parties are implicitly guaranteed access to PERB without fear ofreprisal or
discrimination, and safeguarding that access is a function that more appropriately lies with the
Board, rather than an arbitrator. PERB has adjudicated retaliation claims since its inception,
has developed and refined a workable test for assessing such claims, and applies the test
uniformly to all the statutes it administers. Even if a retaliation claim could arguably fall
within an arbitrator's jurisdiction where, as in this case, the CBA contains a just cause clause,
the meaning of the CBA does not generally lie at the center of the dispute in such cases. The
third prong of the Collyer test is therefore not satisfied where the question to be decided is
whether an employee was retaliated against because he or she filed an unfair practice charge or
otherwise participated in PERB's processes.
Unlike a typical contract interpretation matter, for which arbitration is uniquely suited
and bargained for, retaliation cases do not require the trier of fact to discern the meaning of a
CBA. These cases are more appropriately handled by the expert agency that is charged with
38

not only administering statutes under its jurisdiction, but with protecting access to its own
remedial procedures.
Additionally, providing adequate and speedy remedies for cases in which retaliation for
using PERB processes is proven is critical for PERB to perform its function of preserving
those processes from abuse. The only assurance PERB and the parties have that an arbitrator
correctly applies the statutory standard in judging retaliation claims is through the repugnancy
process, which adds a layer of delay onto cases that should be decided without delay.
For these reasons, we determine that we will henceforth follow the rule enunciated in
Filmation, supra, 227 NLRB 1721, and not defer unfair practice charges filed under HEERA
that allege retaliation for filing PERB charges or otherwise participating in PERB processes.
We see no reason to make this rule retroactive. (Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375, p. 49.)
We do not believe that a remand to the Division of Administrative Law to determine
whether Liu was dismissed because he filed this unfair practice charge is appropriate. As
noted earlier, the ALJ initially deferred the entire complaint in this case to arbitration, having
determined that the CBA covered all the matters alleged in the unfair practice complaint
(denial of promotion and tenure, Penal Code sect~on 626 exclusion order, and the suspension
and termination). When CFA refused to arbitrate the tenure/promotion and the Penal Code
exclusion order, the ALJ determined that those matters must return to PERB for a
determination of Liu' s claims under HEERA.
This Board recently held in Claremont, supra, PERB Decision No. 23 57: "in cases
where the affinnative defense of deferral is asserted and the charging party cannot invoke
binding arbitration independent of the exclusive representative, the Office of the General
39

Counsel, ... shall determine ... whether the exclusive representative is ready and willing to
proceed to arbitration before deferring the matter to arbitration." (Id. at p. 2.) In re-asserting
PERB's jurisdiction over Liu's claims regarding promotion and tenure and the Penal
Code 626.4 exclusion order once CFA declined to arbitrate those issues, the ALJ's order
preserved Liu's right to have his claims adjudicated as Claremont, supra, PERB Decision
No. 2357 requires.
However, we reject Liu's argument that the suspension and dismissal matters, which he
claims should not have been deferred to an arbitrator in the first instance, should now be
remanded to PERB for a fonnal hearing.
At the time of the ALJ's May 18, 2012 deferral decision, Liu had already elected to
submit his app<;:al of his suspension and termination to arbitration under the CBA, and the
parties had already selected an arbitrator through the AAA. At the May 18, 2012 pre-hearing
conference, the ALJ asked Liu to choose between pursuing his discrimination allegations in the
PERB unfair practice case or through arbitration. Liu responded that he intended to arbitrate
the matter. Thus, at the time of the deferral order, Liu had already elected arbitration and had
participated in AAA procedures to select an arbitrator. He re-affirmed his election to arbitrate
his suspension and dismissal at the pre-hearing conference in this case.
In this procedural posture, the ALJ properly deferred to arbitration Liu's claims
regarding his suspension and dismissal.
This matter is analogous to Duba Manufacturing Corp. (1963) 142 NLRB 431 (Duba),
which held that in situations such as the present matter, where parties' disputes are pending
resolution through the arbitration procedure and the dispute has been submitted voluntarily to
that procedure, deferral to that arbitration procedure is appropriate.
40

Because Liu elected to arbitrate his suspension and dismissal claims, Duba, supra, 142
NLRB 431 would not require the ALJ to rescind his deferral order, thus undoing the agreement
to arbitrate, simply because the tenure/promotion denial and Penal Code exclusion order were
later rendered non-deferrable by CF A's refusal to arbitrate those matters. Moreover, we note
that the Duba, supra, 142 NLRB 431 deferral rule is not absolute. For example, Duba does not
preclude the Board from reviewing an arbitration award to assure the dispute was resolved in a
manner consistent with the criteria of Spielberg, supra, 112 NLRB 1080, i.e., the unfair
practice issue must have been presented and considered by the arbitrator; the arbitral
proceedings appear to have been fair and regular; the parties agreed to be bound by the arbitral
award; and the award is not clearly repugnant to the purposes and policies of the NLRA.
(Chapin Hill at Red Bank & Local 707, Health Employees Alliance Rights & Trades
(HE.A.R.T.) (2013) 359 NLRB 125.)
At the time the ALJ deferred Liu's charges and when some of those charges returned. to
PERB jurisdiction, there was no reason to believe the arbitration procedure would not resolve
Liu's disputes in a manner consistent with the Spielberg criteria. Thus, the ALJ did not err
either in his May 22, 2013 pre-arbitration deferral ruling or in his decision to re-assert
jurisdiction over Liu's tenure and exclusion order claims.
For similar reasons, our new rule adopting Filmation, supra, 227 NLRB 1721 does not
require a remand to the ALJ for consideration of whether Liu was suspended and terminated
from his employment because he filed an unfair practice charge. Because Liu elected to
arbitrate his appeal of his suspension and tennination, and because his claim that his
tennination was motivated by his· filing this unfair practice charge was clearly presented to the
41

arbitrator for consideration, Liu could have received a decision on that issue from the
arbitrator. Dubo, supra, 142 NLRB 431 thus supports our refusal to remand.32
Additionally, as a matter of equity, we are not willing to afford Liu another opportunity
to litigate his claim that he was disciplined because of his protected activity. He was provided
that opportunity before the arbitrator. But by his own conduct, Liu thwarted the arbitration
process, most particularly by walking out of the hearing in the middle of the proceedings. He
cannot now come before PERB and seek to benefit from his own forfeiture of that procedure.
Post-Arbitral Repugnancy Review
We also reject Liu's exception to the ALJ's conclusion that the arbitration award was
not repugnant to the purposes of HEERA. Liu may not, by his own conduct, defeat deferral by
refusing to participate in the arbitration, and then claim the arbitration award was repugnant to
HEERA. To hold otherwise and pennit Liu a second opportunity to litigate his discipline case
would undennine the balance struck by the deferral policy.
This holding is supported by relevant PERB authority. (Trustees of the California State
University (Long Beach) (2011) PERB Decision No. 2201-H, p. 8: "A party cannot avoid
deferral simply by failing to pursue available contractual procedures.")
Neither may a party avoid defe1Tal by abandoning the process by walking out of the
arbitration hearing. By this conduct, Liu prevented the arbitrator from reaching a decision on
the merits of his claims. He, therefore, waived his right to claim the award against him was
repugnant to HEERA.
By this decision we do not intend that Dubo, supra, 142 NLRB 431 will necessarily
be applicable in all situations in which a party (either a party to a collective bargaining
agreement or an individual) has elected to move a grievance to arbitration. Instead, we rely on
Dubo to explain why under the facts of this particular case, a remand is not required. In the
future, we will examine the applicability of Dubo on a case-by-case basis.
42

Decision To Quash Subpoena
Liu excepts to the ALJ's decision to quash Liu's subpoena for the report which was
sent by the "Review Committee for the Dean and Associate Dean, College of Business and
Economics, 2010-2011" to CSUEB President Qayoumi on May 12, 2011. However, Liu fails
to explain how the ALJ's decision to quash had any prejudicial effect on the proposed
decision.
For this reason, we deny this exception.
Miscellaneous Exceptions
Liu alleges in his exceptions that the CSUEB attorney coached the employer's
witnesses to lie and that they committed perjury in the PERB hearing. Yet Liu points to no
basis in the record supporting such a claim.
With respect to the arbitration proceeding, Liu claims in his exceptions that CSUEB's
attorney "bullied" him on the witness stand, that the arbitrator was not selected in accordance
with the AAA rules, and that the arbitrator violated the CBA and AAA rules and needlessly
dragged out the hearing and was late in issuing the award. We interpret these claims to be in
the nature of a complaint that the arbitration hearing was not fair and regular and that the
award should therefore be deemed repugnant. vVe reject these claims for the reasons discussed
above, at p. 42 in our discussion of Liu' s repugnancy claim.
Liu also raised additional claims: that the ALJ excluded grievance documents proffered
by Liu; that the ALJ chose the date of the issuance of the proposed decision to deprive Liu of
an opportunity to file exceptions; and that the ALJ dismissed this case in order to reduce his
workload. None of these contentions has merit. We consider each of them.
Liu does not indicate in his exceptions how the proffered documents were relevant to
the issues the ALJ had to decide. This exception fails to comply with PERB
43

Regulation 32300(a)(4), which requires the excepting party to state the grounds for each
exception, so we deny it.
Liu's assertion that the ALJ purposely chose the date to issue the proposed decision to
deprive Liu of the right to file exceptions is belied by the fact that he filed voluminous
exceptions accompanied by a 56-page brief. Liu was also granted an extension of time to file
these exceptions. Therefore, we deny this exception.
Regarding Liu's assertion that the ALJ dismissed his case in order to reduce the ALJ's
workload, we find no basis in the record to support this allegation. The ALJ thoroughly
analyzed the voluminous record in this case and produced a 73-page decision. 	Such effort
indicates the opposite of what Liu contends. Moreover, the ALJ's task is complete when the
proposed decision issues, regardless of whether the charges are upheld or dismissed. This
exception is also denied.
LIU'S OCTOBER 31, 2013 FIVE-PART MOTION
On October 31, 2013, Liu filed with PERB by facsimile a motion requesting that PERB
order the following: 	(1) re-open the record in the instant case for the purpose of receiving new
evidence; (2) make public the Report regarding Dean Swartz; (3) impose perjury charges on
Dobb; (4) issue an immediate order regarding PERB Charge No. SF-CE-1009-H; and
(5) consolidate this case with SF-CE-1009-H.33
33 We note that the proof of service for the motion omits the county in which the
declarant is employed or resides. This omission violates PERB Regulations 32140(a) which
states, in relevant part:
All documents required to be served shall include a "proof of
service" declaration signed under penalty of perjury which
contains the following information: ... (2) the county and state in
which the declarant is employed or resides.
PERB Regulation 32135 states, in relevant part:
44

This Motion lists in its caption both Case Nos. SF-CE-995-H and SF-CE-1009-H. Liu bases
his motion on PERB Regulation 32320, which states, in relevant part:
(a) The Board itself may:
(1) Issue a decision based upon the record of the hearing, or
(2) Affirm, modify or reverse the proposed decision, order the
record re-opened for the taking of further evidence, or take such
other action as it considers proper.
We address each request in order:
Request To Re-Open the Record in Case No. SF-CE-995-H
PERB has determined that the standard to be applied to motions to reopen the record
and take new evidence is the same as that which governs requests for reconsideration. (County
of Riverside (2010) PERB Decision No. 2132-M.) The PERB regulation governing requests
for reconsideration is set forth in PERB Regulation 324 IO(a) which states, in relevant part:
Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date of service of the
decision .... The grounds for requesting reconsideration are
limited to claims that: (1) the decision of the Board itself
contains prejudicial errors of fact, or (2) the party has newly
discovered evidence which was not previously available and
All documents ... must also be accompanied by proof of service
pursuant to Section 32140.
We also note that the facsimile filing of the motion did not include the telephone
number of the agent transmitting the document. This omission violates PERB
Regulation 32135(d)(l) which states, in relevant part:
A facsimile or electronic mail filing shall include the following
infonnation: (1) The name of the party serving or filing papers
and the name and telephone number of the agent transmitting the
document.
(Emphasis added.)
For these reasons, the motion was not appropriately filed under PERB's regulations.
Notwithstanding the procedural defects of the motion, we address each request in order.
45

could not have been discovered with the exercise of reasonable
diligence. A request for reconsideration based upon the
discovery of new evidence must be supported by a declaration
under the penalty of perjury which establishes that the evidence:
(1) was not previously available; (2) could not have been
discovered prior to the hearing with the exercise of reasonable
diligence; (3) was submitted within a reasonable time of its
discovery; (4) is relevant to the issues sought to be reconsidered;
and (5) impacts or alters the decision of the previously decided
case.
Liu's request does not include a declaration in compliance with PERB
Regulation 32410(a) that any of the new evidence he wishes to introduce into the record was
newly discovered, was not previously available, or could not have been discovered with the
exercise of reasonable diligence.
Notwithstanding the omission of such a declaration, neither of the two documents that
Liu seeks to introduce satisfies the standard in PERB Regulation 32410(a). The first document
that Liu seeks to introduce is entitled "Jerry34 Liu's June 25, 2013 <RECONSIDERATION OF
PERB Order No. IR-56-H ON INJUNCTIVE RELIEF REQUEST> [sic]." Liu's request
states: "Due to the [many events in] this case, it was very difficult to discuss every important
detail in the 4-day hearing. . . . This 180-page document contains [extensive] evidence related
to my leading role in a faculty group campaign to oust the rogue dean." (Motion, p. 2.) With
respect to this document, the request fails to demonstrate that the document meets the
requirements under PERB Regulation 32410(a).
The second document that Liu seeks to introduce is entitled "Jerry Liu's September 17,
2013 Whistleblower Letter to the State Auditors," which Liu claims "documents CSU Lawyer
Theodora's illegal bribing of the Arbitrator with a large amount of state [funds]. On
September 17, 2013, the letter was submitted to both the PERB Board and CSU Chancellor
34 "Jerry" is Liu's nickname.
46

Tim White." (Motion, p. 3.) With respect to this document, the request fails to demonstrate
that the document meets the requirements under PERB Regulation 32410(a).
,For these reasons, we deny Request No. 1.35
Request to Disclose the Swartz Report
This request asks that the Board reverse the ALJ's refusal to make the Report public.
The ALJ quashed Liu's subpoena for the Report after reviewing it in camera. In his motion,
Liu does not assert that the ALJ erred in making this evidentiary decision that the Report was
not relevant to the issues before the ALJ. Instead, Liu argues that the Report is somehow a
public record and PERB has an obligation to release it.
PERB 's jurisdiction does not extend to public records disclosure issues, unless such
documents are part of the official records of PERB unfair practice or representation cases.
Because the ALJ quashed Liu's subpoena for this document and did not admit it into the
record, the Report is not part of the record in this or any other PERB case, and therefore it is
not a document that PERB has the power or authority to disclose.
Liu does not argue that the ALJ's decision to quash the subpoena had any prejudicial
effect on the proposed decision. Nor does he cite to any statutory or regulatory basis for
making this request. Nor does he establish that in quashing the subpoena, the ALJ abused his
discretion.
For all these reasons, we deny Request No. 2.
Impose Perjury Charges Against Linda Dobb
This request asks that the Board contact the District Attorney's office and press' perjury
charges against Dobb. Liu cites to no statutory or regulatory basis for making this request.
35 On July 15, 2014, Liu submitted another request to the Board to re-open the record
for consideration of a memo to President Morishita dated July 14, 2011, signed by four
assistants to the CSUEB Provost. We deny this request for the same reasons we discuss above.
This request fails to comply with PERB Regulation 32410(a).
47

Liu, as an individual who believes he has been harmed, has the right to notify the District
Attorney's office of alleged perjury.
Moreover, even if the Board were amenable to Liu's request, he does not cite to
evidence in the record of Dobb' s alleged perjury. His only reference to the record in support
of his request is an extended section of the ALJ hearing transcript, for which he cites to page
and line numbers, but not to volume number.36 In the referenced portion of the transcript,
Dobb repeatedly testifies that she received e-mails from Liu that allegedly mention "murder
and rape." Liu argues that the e-mails to which Dobb refers in her testimony did not contain
mention of murder or rape. However, Liu fails to cite to the exhibits in the record where these
e-mails exist, thus preventing us from determining ifDobb's allegations are consistent or not
with those e-mails.
For these reasons, we deny Request No. 3.
Grant Remedies Requested in Case No. SF-CE-1009-H
This request asks the Board to make the following three orders: (1) order CSU
Chancellor Tim White to immediately write Liu a letter of apology; (2) order an audit to be
conducted immediately by an outside auditing firm; and (3) order CSU to immediately conduct
hearings for Liu's Grievances Nos. 29, 42, and 43.
Liu cites :te. no statutory or regulatory basis for this request. Moreover, we have not yet
considered the merits of SF-CE-1009-H and have previously refused to consolidate that case
with the instant matter. It is, therefore, premature to grant a remedy at issue in Case
No. SF-CE-1009-H.
For these reasons, we deny Request No. 4.
On our own examination, we have determined the quoted section appears in
Volume IV of the transcript.
48

Reconsideration of PERB's Decision Regarding Consolidation of Case Nos. SF-CE-995-H and
SF-CE-1009-H
This repeats a request Liu made previously to consolidate the instant case with his other
unfair practice case in Case No. SF-CE-1009-H. The Board's Appeals Assistant declined
Liu's prior request to consolidate the two cases and notified Liu of that decision by letter from
the Appeals Office on December 2, 2013.37 Liu did not appeal that determination pursuant to
PERB Regulation 32360. He therefore waived review of this determination. Moreover, we
decline to construe the present motion to be an appeal pursuant to PERB Regulation 32360.
For these reasons, we deny Request No. 5.
CONCLUSION
Having reviewed the record in its entirety, we affirm the ALJ's dismissal of the charges
that CSUEB violated HEERA section 3571(a) by retaliating against Liu, because of his
protected activity when it denied him tenure and promotion and issued a Penal Code
section 626.4 exclusion order. Under the limited and unique facts of this case, we likewise
affirm the ALJ's orders regarding pre-and post-arbitration deferral on the basis of Liu's own
conduct, which constituted a waiver of his right to challenge those determinations. We deny
the remedies that Liu requests in his statement of exceptions. We likewise deny Liu's
October 31, 2013, motion in its entirety.38
37 PERB has generally declined a motion to consolidate two or more cases filed after
submission of the cases to the Board without citation or comment. (See, e.g., Trustees of the
California State University (San Marcos) (2004) PERB Decision No. 1584-H, p. 2.)
38 We note that in the ALJ's proposed decision in Case No. SF-CE-995-H, the ALJ's
citation to an e-mail from California Faculty Association President Brian McKenzie to CSUEB
Qayoumi (marked as Charging Party Exhibit 20) was in error, as this document was not
admitted into the formal record. However, the Board did not consider this document while
reaching its detennination in this matter.
49

ORDER
Based upon the foregoing findings of fact and conclusions of law, the complaint and
underlying unfair practice charge in Case No. SF-CE-995-H are hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this
50

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
WENJIU "JERRY" LIU,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-995-H
PROPOSED DECISION
(May
8,
2013)
Appearances: Wenjiu "Jerry" Liu, in propria persona; Dawn
S.
Theodora, University Counsel,
for Trustees
of
the California State University (East Bay).
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges that a higher education employer denied tenure and promotion,
restricted from campus grounds, suspended, and terminated an employee for filing grievances,
participating in a grievance hearing, and filing an unfair practice charge. The employer denied
committing any unfair practices, and, as an affirmative defense, contended that the complaint
should be deferred to arbitration pursuant to PERB Regulation 32620(b)(6). 1
On October 17, 2011,2 Wenjiu "Jerry" Liu (Liu) filed an unfair practice charge (charge)
against Trustees
of
the California State University (East Bay) (CSUEB). · On March 23, 2012,
Liu filed a partial withdrawal
of
a number
of
allegations in the charge including, but not
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq:
2 While the unfair practice charge was efiled on September 30, 2011, the originals were
not received until October 17, 2011. PERB Regulation 32135(a) provides:
All documents shall be considered "filed" when the originals, and
the required number of copies, if any, are actually received by the
appropriate PERB office during a regular PERB business day.
(Emphasis added.)

limited to allegations concerning: conduct occurring outside of the six-month statute of
limitations period; national origin discrimination, sexual harassment and whistleblower
retaliation;3 and a September 20, 2010 reprimand and violation of confidentiality. The notice
of partial dismissal was issued on March 27, 2012.
On March 27, 2012, the Office of the General Counsel of the Public Employment
Relations Board (PERB) issued a complaint alleging that CSUEB violated the Higher
Education Employer-Employee Relations Act (HEERA) section 3571(a)4 by denying Liu
tenure and promotion, restricting him from campus grounds, suspending him, and terminating
him for filing approximately 15 grievances between April and June 2011, participating in a
May 9, 2011 grievance meeting and filing an unfair practice charge on or about September 30,
2011.
On April 20, 2012, CSUEB answered the complaint, denying any violation ofHEERA
and including affirmative defenses. Specifically, CSUEB contended:
The Complaint and the Charge should be deferred to the
grievance and arbitration procedures of the applicable Collective
Bargaining Agreement on the basis that the provisions of the
Collective Bargaining Agreement cover the matter at issue.
Charging Party has filed grievances asserting similar allegations,
which are currently awaiting processing. Charging Party has
also filed appeals of his disciplinary actions, which are pending
determination by binding arbitration.
3 Some of the incidents for which Liu claimed he was retaliated against during the
hearing were not protected activities under HEERA, but more akin to "protected disclosures"
under the California Whistleblower Protection Act, Government Code section 8547, et seq.
Retaliation for such protected disclosures is not covered as an unfair practice under HEERA.
(Union of American Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.)
Liu's allegations are to be restricted by PERB's limited jurisdiction.
4 Unless otherwise indicated, all statutory references are to the Government Code.
HEERA is codified at section 3560 et seq.
2

Motion to Defer to Arbitration
On April 20, 2012, CSUEB filed a motion to defer the allegations in the complaint to
the arbitration procedures set forth in the Collective Bargaining Agreement (CBA).
Specifically, the CBA between the California State University (CSU) and the California
Faculty Association (CFA), section 10.36, provides:
No reprisals shall be taken against any employee for the filing
and processing of any grievances.
The motion included multiple attachments and grievances filed by Liu. On April 30, 2012, the
Administrative Law Judge (ALJ) wrote the parties seeking that CSUEB clarify statements
made in its motion, including the extent to which CSUEB was willing to waive its procedural
defenses. On May 7 and 11, 2012, Liu filed objections to the motion. On May 11, 2012,
CSUEB answered the ALJ questions stating Liu had filed grievances on each of the alleged
retaliatory acts. CSUEB agreed that it would allow Liu to amend violations of CBA
section 10.36 in each of the grievances or would allow for the filing of grievances under CBA
section 10.36 and waive any procedural objection to proceed to arbitration. CSUEB stated that
although CFA was not going to be representing Liu at his grievance/arbitrations, Liu was
proceeding forward and had a pending disciplinary arbitration scheduled for August 21 through
24, 2012.
A prehearing conference was set for May 18, 2012, to discuss the motion and its
opposition and to rule on the motion. At the end of the prehearing conference, the ALJ granted
the motion.
The ALJ issued a written ruling on May 22, 2012 deferring all four grievances to
arbitration. The case was placed in abeyance. The ruling stated:
Accordingly, the motion to defer to arbitration is granted. This
complaint is deferred to arbitration and is placed in abeyance.
After 90 days has passed from the issuance of this ruling, the ALJ
will determine the status of the grievance/arbitration proceedings,
3

and whether the parties are meeting their obligation to process the
grievances/arbitrations and what action, if any, should be taken.
The June 7 and 8, 2012 hearing dates are cancelled. The parties
are strongly encouraged to take all permissible actions which
advance grievances concerning the denial of tenure and
promotion and the issuance of the Penal Code section 626.4 order
to the arbitration level.
(Emphasis added; fn. omitted.)
By June 19, 2012, CFA decided not to represent Liu at his grievances regarding the
denial of tenure and promotion and the issuance of the Penal Code section 626.4 order banning
him from campus grounds. As CFA controlled the grievance on these two issues and Liu
could not proceed to arbitration without CF A's concurrence, the ALJ scheduled
September 11 through 14, 2012, for formal hearing on these two issues and the suspension and
termination issues remained deferred to arbitration.
On September 11 through 14, 2012, formal hearing was held. During the hearing, Liu
sought to obtain an investigation regarding Dean Swartz's treatment of staff. The ALJ
reviewed the document in camera and quashed the subpoena as the material contained in the
investigative report was irrelevant in determining whether the President's decision to deny
Liu's tenure and promotion was affected by Liu's grievances.
. Post-hearing briefs were submitted on November 8, 2012.
On November 15, 2012, Arbitrator Harris issued her "Arbitrator's Rulings on Cross
Motions of Parties and Final Award." In short, Arbitrator Harris dismissed Liu's appeal from
suspension and termination and declared the disciplinary actions final. Although not utilizing
the proper terminology, Liu objected to the ruling and award as repugnant and requested that
PERB schedule hearings to adjudicate the reprisal actions of suspension and termination. The
ALJ set forth briefing dates for the parties to argue whether the arbitration award should be
deemed repugnant. The parties submitted their briefs by December 14, 2012. On
4

December 24, 2012, the ALJ asked the parties to provide him the emails5 between the parties
and the American Arbitration Association (AAA)regarding the selection/appointment of the
arbitrator. Those documents were provided by January 18, 2013, and on that day the matter
was deemed submitted for proposed decision.
FINDINGS OF FACT
Jurisdiction
The Trustees of the CSU are a higher education employer under HEERA
section 3562(g). CSUEB is a university within the CSU system. CFA is the exclusive
representative of an appropriate bargaining unit of employees, which includes Assistant
Professors, under HEERA section 3562(i). Liu was a higher education employee under
HEERA section 3562(e).
Retention, Tenure and Promotion at CSUEB
An Assistant Professor has a probationary period of six years. After Assistant
Professors are hired, they must be evaluated yearly to determine whether they are to be
retained for the next school year (retention). At the beginning of the sixth year, an evaluation
process begins which determines whether an Assistant Professor should be granted tenure and
promoted to the classification of Associate Professor (promotion). The retention, tenure and
promotion (RTP) process is set forth in the CBA between CFA and CSU and more
comprehensively in the CSUEB RTP Policy and Procedures.
The RTP process is a multi-layered process where an Assistant Professor is evaluated at
the department and college levels as to retention, and the department, college and university
levels as to tenure and promotion. At each level, a faculty committee, consisting of rank and
5 Liu primarily uses emails as his preferred mode of communication.
5

file, full-time, tenured professors, elected by their peers,6 evaluate the Assistant Professor.
After the Department RTP Faculty Committee (Department Faculty Committee), consisting
of
three members, conducts its evaluation, it prepares a recommendation report and forwards it to
the Department Chair. The Department Chair then issues his/her recommendation. At the
college level, the College TP7 Faculty Committee (College Faculty Committee), consisting
of
five members, prepares and forwards its recommendation report to the College Dean.
The
College Dean similarly prepares a recommendation report and forwards it to the university
level. At the university level, the University TP Faculty Committee (University Faculty
Committee), consisting
of
five members, prepares and forwards its report to the University
President. The final decision as to tenure and/or promotion belongs to the University
President.
The faculty recommendation reports are prepared after the committees review the
Assistant Professor's working personnel action file (WPAF), dossier and student evaluations.
Each committee level reviews the same source documents presented by the Assistant Professor
and the prior recommendation reports submitted by the prior committees and Department
· Chair/College Dean. The candidate being reviewed receives a copy
of
each recommendation
report and may submit a letter
of
rebuttal to each negative recommendation.
All faculty committees and the Department Chair/College Dean/University President
are charged with making their recommendation/decision without bias. The University Faculty
Committee is charged with determining whether professional or personal bias played a role in
the recommendation(s) at the lower level(s). Each faculty committee reviews the candidate in
five areas: possessing the requisite degree; instructional achievement (teaching); academic
6 Each faculty member elected on a committee elects the chair of that committee.
7 The College and University level committees are primarily for tenure and promotion
only, but may be asked to evaluate applications for retention.
6

achievement8 (publications, papers, speaking engagements, etc.); university service
(participating in various university committees, etc.); and, community service (participating in
local or state government boards and supervising community service projects). These five
areas are usually reduced to three areas: instructional achievement, academic achievement and
university and community service.
The RTP Policy and Procedures provide in pertinent part:
5.0 	RETENTION
5 .1 	Expectations
Reappointment of an untenured faculty member is not
routine; an untenured faculty member must demonstrate to
the University that he or she is worthy of retention. A
recommendation for retention carries no obligation for
future award of tenure. However, it assumes that the
candidate meets not only the criteria in Section ... , but
also shows promise of satisfying the criteria for tenure and
promotion as described in Sections . . . There shall be
greater evidence of achievement the closer the candidate
is to being considered for tenure 7
6.0 	TENURE
6.1 	Expectations
Tenure constitutes more than recognition of past teaching
performance and scholarly work. It is a judgment by the
faculty that the candidate will continue to contribute into
the future to the development of the University. Tenure is
a commitment (into the future) in anticipation of
contributions to the University in the areas of instructional
achievement, [academic] achievement, university service,
and community service, and should only be granted within
this framework.
8 In retention evaluations, the committee may look to "substantial progress toward"
academic achievement to qualify or satisfy this requirement.
7

7.0 	PROMOTION FROM ASSISTANT TO ASSOCIATE
PROFESSOR
7 .1 	Expectations
The Assistant Professor in the early stages of his or her
appointment is typically facing a full teaching load for the
first time. It is necessary to combin~ teaching with the
continuance of scholarly interest and contribution.
Additional University responsibilities may include
committee work and administrative assignments. An
Assistant Professor should have completed the Doctorate,
or the normal terminal degree, or, in exceptional cases, the
equivalent thereof, to be eligible for promotion to
Associate Professor. Effectiveness in teaching,
[academic] contributions, university service, and
community service should be the general criteria for
promotion to Associate Professor rank.
Academic Background of Liu
Liu received his Bachelor's Degree in Economics at Nankai University in 1989. He
obtained a Master's Degree in Economics from the University of California Santa Barbara in
1996; a Master's Degree in Mathematical Finance and a doctorate in Business Administration
from the University of Wisconsin-Madison. He had been employed as a visiting Assistant
Professor in the Department of Finance with the University of California Riverside for the
2001-2002 academic year; University of Notre Dame for the 2002-2003 academic year; and the
prestigious Purdue University Krannert School of Management for the 2003-2004 and
2004-2005 academic years. He was a nominee of the Non-Senate Distinguished Teaching
Award in April 2002 and received the Dean's Recognition of Excellence in Teaching in
August 2003.
CSUEB hired Liu as an Assistant Professor to work in the College of Business and
Economics (CBE or College), Department of Management and Finance9 in the 2005-2006
9 The department's name was later changed to the Department of Accounting and
Finance.
8

academic year. At the time, Sam Basu was the CBE Interim Dean and Joyendru Bhadury
(Bhadury) was the Department Chair.
Retention for the 2006-2007 Academic Year
On November 28, 2005, the Department Faculty Committee unanimously
recommended Liu for retention as an Assistant Professor for the 2006-2007 academic year.
The recommendation noted that he was currently working on five papers to be submitted for
publication in the future and that he had developed an insurance curriculum at CSUEB. On
December 6, 2005, Department Chair Bhadury expressed his concurrence in the retention of
Liu, but advised Liu to concentrate on getting more published works in his first year.
Retention for the 2007-2008 Academic Year
On December 1, 2006, the Department Faculty Committee unanimously voted to
recommend Liu for retention for the 2007-2008 academic year. It was noted that he had
excellent teachers evaluations and three papers in the publication process. He also served on
the Technology and Instruction Subcommittee and was working to develop an insurance
curriculum. On December 6, 2006, Department Chair Bhadury concurred with the
committee's recommendation. Bhadury noted that the department awarded him a Summer
Research Grant in Summer 2006 and allowed him to defer or "bank" his Fall 2006 teaching to
Summer 2007 in order to provide him with an uninterrupted block of time for research.
On February 5, 2007, Dean John Kohl agreed with the recommendations to retain Liu
for the 2007-2008 academic year, but encouraged him to maintain his efforts to publish in
refereed/peer reviewed journals in the upcoming year. On February 15, 2007, Interim Provost
Fred Dorer notified Liu that he was reappointed as an Assistant Professor for his 2007-2008
academic year. Teresa Swartz (Swartz) took over as the CBE Interim Dean in July 2007.
9

Retention for the 2008-2009 Academic Year
On February 28, 2008, the Department Faculty Committee of Professors Nancy
Mangold (Mangold), Ching-Lih Jan (Jan) and Frank Lowenthal (Lowenthal) issued a
unanimous recommendation to retain Liu for the 2008-2009 academic year. The
recommendation report noted that Liu received the Excellence in Teaching Award for 2006
from the Office of Faculty Development and Faculty Center for Excellence at Teaching at
CSUEB. Regarding the academic achievements section of the report, the committee
summarized:
Based on his recent accomplishments in research and publications
in 2007, Dr. Liu has shown that he has been very productive in
research. While recognizing Dr. Liu's achievement in publishing
his paper in the top insurance journal in 2007, the committee
wishes to caution Dr. Liu that the criteria for promotion and
tenure in the area of [academic] achievement require greater
productivity than what is currently presented in the dossier. The
committee encourages Dr. Liu to pursue publishing his working
papers in finance journals in 2008 and believes that Dr. Liu will
continue to produce important scholarly work and make
significant contributions in research and publications.
(Emphasis added.)
The faculty committee noted Liu's university service contributions with the CBE
Curriculum Committee and the Technology and Instruction Subcommittee. He also worked on
the Division of Continuing Education Committee to set up a CSUEB insurance program and
organized two meetings for the Bay Area Chinese Finance Seminar group reflecting his
university and community service contributions.
On March 6, 2008, Department Chair Christopher Lubwama (Lubwama) concurred
with the recommendation that Liu be retained for the 2008-2009 academic year. Lubwama
also encouraged Liu to increase his efforts in getting his working papers published. Lubwama
stated that under CBE classification criteria, Liu was not "academically
10

qualified/professionally qualified" (AQ/PQ) as he had only one peer-reviewed article published
since be obtained his Ph.D. over five years ago.
On March 13, 2008, Liu prepared a memo to Department Chair Lubwama and Dean
Swartz explaining how he met AQ status under the CBE classification status, based on other
criteria than publication. The memo was thoroughly documented.
On May 9, 2008, Dean Swartz submitted her retention recommendation as "reluctantly"
supporting Liu for his retention for the 2008-2009 academic year. 	Specifically, Dean Swartz
expressed the following reservations of Liu:
However, there are no reported peer reviews of his teaching,
which are a necessary and required part of the evaluation of
instructional achievement. Further, on more than one occasion I
have had complaints from different students regarding Dr. Liu's
behavior and attitude in the classroom. As a result I have a mixed
view of his teaching effectiveness. The complaints are such that I
do have concern and have talked with Dr. Liu regarding some of
these issues ....
In the past, Dr. Liu received both college and university grants
and banked his teaching (Fall 2006 shifted to Summer 2007) to
provide him with a significant block of time to facilitate his
research activities. Unfortunately, based on the dossier,
Dr. Liu's journal review pipeline is no different than it was in
December 2005, as is also true with his journal acceptances.
This 2 ½ year lapse is not consistent with the expectations at the
CBE. Dr. Liu currently identifies four manuscripts to be
submitted at varying times during the first half year of 2008, as
well as a number of research projects to be completed later this
year. I strongly encourage him to keep his research pipeline
flowing. 	Given the time from submission to publication at
quality journals, he is encouraged to get his working papers in the
review pipeline as soon as possible. Further, I encourage him to
continue his focus on quality, not quantity. While Dr. Liu shows
research promise, this has been the case in his last two annual
reviews with no change in journal productivity. Given this, I
am hesitant to recommend retention to a fourth year,
although I am doing so.
(Bolding in original.)
11

On May 30, 2008, Provost Michael Mahoney (Provost Mahoney) reappointed Liu as an
Assistant Professor for the 2008-2009 academic year.
Retention for the 2009-2010 Academic Year
On February 26, 2009, the Department Faculty Committee of Professors Mangold, Jan
and Gary McBride (McBride) issued its unanimous recommendation to retain Liu for the 2009-
2010 academic year. After complimenting Liu on his ability as an effective instructor, the
report noted that in 2008 Liu had two additional papers published in top-ranked finance
journal. He also had a working paper, "The Manipulation of Google Stock," which had been
published in the San Francisco Chronicle. He was also activ~ in paper presentations. The
report noted thatLiu was also on the University Writing Skills Subcommittee, although he was
no longer on the CBE Curriculum Committee, the Technology and Instructio~ Subcommittee,
and the Division of Continuing Education Committee.
On March 10, 2009, Department Chair Lubwarna concurred with the faculty's
recommendation. Regarding the category of academic achievement, Lubwarna summarized:
Dr. Liu has worked very hard in the area of [academic]
achievement in his 4th year of being retained as an Assistant
Professor at CSUEB. He is entering his 5th year of retention
standing on strong [academic] achievement. In terms of our CBE
AQ/PQ classification criteria, Dr Liu is AQ. I congratulate him
on his hard work and encourage him to keep up the good work.
On May 11, 2009, Dean Swartz supported Liu for retention for the 2009-2010 academic
year. Dean Swartz commended Liu for his progress in his academic achievement and that Liu
more than satisfied his requirements for university and community service for someone at his
stage of his career. On June 9, 2009, Provost Mahoney reappointed Liu to the 2009-2010
academic year.
12

Liu's
Request for
New
Leadership at CBE
On
February 1, 2010, Liu sent an email to CSUEB President Mohammad
"Mo"
Qayoumi (Qayoumi) and Provost James Houpis (Houpis) requesting that they look for new
leadership
in
the CBE and replace Dean Swartz as she hired "low-quality" candidates and paid ·
them above-market salaries; divided faculty into "friends" and "enemies"; and treated her
friends favorably in granting them class release for scholarly work. Liu did not receive a
response.
Retention for the 2010-2011 Academic Year
On March
1,
2010, the Department Faculty Committee
of
Professors McBride, Jan and
Diane Satin (Satin) voted two to one to recommend retaining Liu for the 2010-11 academic
year. The report expressed a number
of
reservations concerning Liu representations
of
his
academic achievements. 	The first reservation was that Liu listed one
of
his publications
on
the
Social Science Research Network (SSRN) as being from the more prestigious Krannert School
of
Management at Purdue University rather than from CSUEB. Additionally, Liu represented
that the Securities Exchange Commission (SEC) was looking into his article regarding the
manipulation
of
Google, Inc., stock. The committee stated that while Liu may have sent his
article to the SEC, the SEC could not confirm or deny whether it was investigating the matter.
Liu was admonished not to sensationalize his Google, Inc., article. Liu was also admonished
for exaggerating his accomplishments as he stated he was the "driving force" leading the effort
to combine the finance and accounting groups as forming a new department, quit the CBE
Curriculum Committee as it was too much work, and stated that he helped set up an insurance
program at CSUEB when it actually never started due to a lack
of
enrollment. Additionally,
the mean Grade Point Average (GPA)
of
students in Liu's classes was high compared to other
instructors. The minority vote to deny retention cited to Liu's false and misleading statements
or omissions in his dossier.
13

On March 10, 2010, Liu sent a memo to President Qayoumi, Provost Houpis and
Associate Vice Provost Linda Dobb (Dobb), complaining of prejudice by the Department
Faculty Committee. He contended there was one other professor who gave a higher GP A than
his in the Finance 3300 course and the report left out some of his contributions in university
service.
On March 15, 2010, Department Chair Micah Frankel (Frankel) concurred with the two
to one vote recommending that Liu be retained. Fr.ankel opined that Liu's Google, Inc., article
was a good quality paper, but cautioned that Liu should not sensationalize it. Frankel opined
that Liu's university service was limited and noted that Liu's teaching evaluations were very
good and enrollment in his courses was excellent. Liu was encouraged to actively participate
in college and university level committees.
On May 5, 2010, Dean Swartz supported the recommendation for Liu's retention for the
2010-2011 academic year. While Dean Swartz commended Liu on his efforts in teaching a
significant number of students, she commented on Liu making joking comments in a class such
as making the class tough as he did not want to see many students in the class. Dean Swartz
commented that she expected to see Liu more actively engaged in university service as he was
currently only involved in the University Writing Skills Committee. In sum, Dean Swartz
found that Liu met the requirements for retention of his sixth year. On June 1, 2010, Provost
Houpis reappointed Liu for the 2010-11 academic year.
Request to Teach Options and Futures Course
On June 1, 2010, Liu emailed Provost Houpis that Professor Scott Fung (Fung) had
received special treatment over him in the past and therefore Liu should be assigned to teach
. the Options and Futures course instead of Professor Fung. Liu copied President Qayoumi on
the email.
14

On June 29, 2010, Liu emailed Dean Swartz stating that he was "appalled" to discover
that he was not assigned to teach the Options and Futures course. He copied President
Qayoumi, Provost Houpis, Department Chair Frankel and CFA Representative Jennifer Eagan
(Eagan).
September 17, 2010 Letter to Associate Vice Provost Dobb
On September 17, 2010, Liu sent an email to Associate Vice Provost Dobb entitled
"Criminal Actions of Dean Swartz and [t)he Damages [s)he [b]rought to CBE." The lengthy
email qualified that Liu's views in the email were his personal views and he went on to request
that CSUEB investigate Dean Swartz for her actions against him. The email complained that
Dean Swartz was "pushing" staff to file false police reports against him; was unfair to Liu in
the RTP process; played favorites with some staff and discriminated against others (marketing
professors v. non-marketing professors) in the areas of compensation; jeopardized
accreditation by losing two professors and hiring poor professors; poorly instructed students
based upon student's on-line ratings; and was "showering" every tenured professors with
release time or stipends. Liu sent a copy of the email to President Qayoumi, Provost Houpis,
CFA representative(s) and Lt. James Hodges (Lt. Hodges). 10
Denial of Tenure and Promotion: Department Faculty Committee Level
On November 5, 2010, the Department Faculty Committee, invited the faculty to
provide input as to Liu's application for tenure.11 The meeting was scheduled for November 9,
10 Lt. Hodges was later promoted as the Interim Chief of CSUEB University Police.
11 RTP Policy and Procedures section 10.2.2 provides in pertinent part:
The Department Committee shall carefully examine all the
documentation supporting each candidacy, and may seek
additional relevant evidence and consult with other department
faculty ....
(Emphasis added.)
15

2010. Liu protested that he did not remember Professor Fung or Professor Tammie Simmons-
Mosely having similar hearings and considered the November 9, 2010 meeting to be
discriminatory. As it turned out, none of the faculty submitted a letter to the committee.
On November 15, 2010, the Department Faculty Committee of Professors Mangold,
Lubwama and Satin issued its recommendation voting two to one againstgranting Liu tenure.
Professor Mangold was the one vote who recommended granting Liu tenure. 12 Prior to issuing
the reports, Professor Mangold knew nothing of Liu intending to file grievances and the
committee did not discuss his intent to file grievances.
While the committee believed Liu's student evaluations for teaching to be satisfactory,
the majority13 would have liked to see more breadth in the courses taught. The majority also
believed that Liu's three published papers to be of good quality, however, the majority of the
committee found:
Regarding Dr. Liu's [academic] achievement, the majority of the
committee believes that while Dr. Liu meets the minimum
requirements for being academically qualified in the College of
Business and Economics, he fails to demonstrate unambiguous
potential to contribute in the future to the development of the
university through [academic] achievements. For example,
during the last ten years for which Dr. Liu has been in academia,
he has only been able to publish three refereed journal articles,
two of which are in 2009, his ninth year.
After listing Liu's service, the committee noted that Liu was currently serving on the
University Subcommittee on Writing Skills. The majority believed that Liu had limited
university and community service. In closing, the majority stated:
According to RTP guidelines, tenure is not granted as recognition
of past teaching performance and scholarly work, but a
commitment (into the future) in anticipation of contributions to
the University in the areas of instructional achievement,
[academic] achievement, university service, and community
12 Professor Mangold was the only member of the committee who testified.
13 Majority meaning the two votes against granting tenure.
16

service, and should only be granted within this framework.
Given the extremely low publication rate, limitedness of courses
taught, and the limited university and community service, the
majority of the committee has serious concerns that this does not
predict future contributions and excellence. Therefore, the
majority of the committee would not recommend Dr. Liu be
awarded tenure.
(Emphasis added.)
On November 15, 2010, the Department Faculty Committee voted unanimously, three
votes to none, to recommend against promoting Liu to Associate Professor. The report was
similar to the tenure report, except there was not a minority view.
Grievance Number One
On November 17, 2010, Liu filed a grievance stating that Dean Swartz had
intentionally made it difficult for him to obtain teaching releases for Winter 2010. A formal
level one meeting was conducted on May 31, 2011, to which Liu attended.
Rebuttal to Department Faculty Committee Recommendation
On November 24, 2010, Liu submitted his rebuttals to the Department Faculty
Committee report denying him tenure and promotion which included extensive quotations from
prior retention recommendation reports which placed him in a positive light. 14 Liu admitted
that he only taught five courses at CSUEB, but explained that teaching assignments were made
by the department chairs. Liu also included an email in the beginning of the academic 2010-
2011 year where he expressed interest in serving on other university, college and department
committees. Liu added that in October 2010, he was elected to be on the board of directors of
the Bridgeway Place Homeowners Association.
On November 24, 2010, Liu requested to meet with the Department Faculty Committee
on his negative recommendation of his denial of tenure and promotion. On December 7, 2010,
Mangold notified Liu that the faculty committee would meet with him on December 9, 2010.
14 The rebuttals on tenure and promotion were almost identical.
17

Liu brought a camera to the meeting. Mangold left and returned stating that the Provost would
not allow the recording of the meeting. Liu replied that the RTP procedures did not set forth
such a prohibition. Liu stated that he would write the faculty affairs committee and obtain a
ruling and it would be better to reschedule the meeting after he obtained such a ruling.
After Liu's rebuttal, the Department Faculty Committee decided to look closer into
Liu's WPAF, dossier and student evaluations. On December 17, 2010, the Department Faculty
Committee of Professors Mangold, Lubwama and Satin issued its 16-page "Subsequent Tenure
Recommendation" and "Subsequent Promotion Recommendation" after consideration of Liu's
rebuttal. The committee revised its vote to a unanimous recommendation against tenure and
upheld its original unanimous recommendation against promotion. The committee stated other
deficiencies which Liu failed to ad4ress including: reviewing Liu's high grading scale and
distribution and unfavorable student comments in their evaluations.15 Additionally, the
committee provided:
The Committee is disturbed to find that Dr. Liu listed the same
three publications in his 2010-2011 dossier as he did in his 2008-
2009 dossier. Contrary to the committee's and Dean's
recommendations, Dr. Liu has no new publications or a pipeline
of submissions that will result in publications since the
Committee's letter on February 26, 2009 .... The Committee
believes that Dr. Liu has not satisfied the Department RTP
committee's and Dean's recommendations urging him to
continue quality research and publication. Section 5 .1 of the
RTP document states that "there shall be greater evidence of
achievement the closer the candidate is to being considered for
tenure." The committee believes that Dr. Liu has not shown
greater evidence of achievement the closer he is to being
considered for tenure since there was no evidence of continuing
publications after his two papers were accepted in 2008 and
published in 2009. The Committee believes Dr. Liu has not
provided evidence that "the candidate will continue to contribute
15 Some of the comments were quite alarming and included comments about classes
being substantially cut short; inappropriate jokes about females; and comments about making
his class tough in order to get rid of students. Some of the comments included, "often makes
inappropriate jokes in references to girls and guys" and "[ d]rop the 'Sexy girl stuff please."
18

into the future to the development of the university . .. in the area
ofprofessional achievement."
(Bolding and italics in original.)
The supplemental recommendation reports went on for a number of pages and
addressed numerous other issues as well.
Professor Mangold explained that after the committee received Liu' s rebuttal, they
decided to look more thoroughly into Liu's tenure files. 	They discovered some of the student's
comments about Liu's classes which caused concern. Professor Mangold who initially was in
favor of Liu being granted tenure changed her vote to recommend denial of tenure as she could
not ignore the evidence against Liu. Professor Mangold was unaware of any grievances filed
by Liu when the committee submitted its supplemental report and the committee did not
discuss Liu's filing of a grievance.
Grievance Number Two
On January 4, 2011, Liu filed a grievance with the Provost's Office alleging that the
recommendation reports submitted by the Department Faculty Committee (specifically
Committee Chair Professor Mangold), the College Faculty Committee for retention
(specifically Professor McBride) and Dean Swartz continuously misrepresented in the tenure
reports that he attributed work he made while employed with CSUEB to Purdue University in
the SSRN,.when the error was made by SSRN staff. The formal level one meeting was held
March 9, 2011, to which Liu attended.
Threat Assessment Team Meeting
On January 6, 2011, CSUEB Chief of Police Jan Davis (Davis) convened a Threat.
Assessment Team meeting regarding Liu. Present at the meeting along with others were
Department Chair Frankel, Lt. Hodges, Dobb and Dean Swartz. They discussed whether to
order Liu to a fitness-for-duty examination. Dobb explained how Liu was nervous about his
19	I

tenure status and it was making the rest of the staff "nervous and jumpy." Dobb recounted
some of Liu's past bizarre behaviors including kicking an office door, slamming something on
his desk, taking photographs, getting too close to people, suddenly appearing in hallways and
bathrooms and asking, "isn't [it] strange we are both here," requesting to record meetings and
loitering in the parking lot. Dean Swartz stated that other staff were seeking employment
elsewhere and she was frightened over Liu's statement that he would "fight to the death" over
the right to teach a finance course. Chief Davis wanted to increase university police presence
when Liu received the next negative letter related to Liu's tenure. 16
Denial of Tenure and Promotion: Department Chair Recommendation
On January 13, 2011, Department Chair Frankel issued his 22-page and 21-page memos
agreeing with the Department Faculty Committee to recommend against granting tenure and
promotion, respectively. The memos were almost identical in content. Frankel went into more
detail when reviewing the comments of student evaluations, both positive and negative. The
negative student comments covered cancelling class early; inappropriate sexual jokes; and
difficulty in understanding Liu's English. Some of these negative comments were repeated
over multiple classes and years which Liu taught. Frankel's memo also cited a number of
concerns set forth in other faculty committees, as well as his prior reports/recommendations.
Frankel also mentioned his observations of how Liu systematically attempted to intimidate
faculty through bullying behavior. Frankel admitted that he issued Liu prior favorable
retention recommendations, but distinguished between the differing standards under the RTP
Policy and Prncedures for retaining an Assistant Professor and granting tenure and/or
promoting an Assistant Professor.
16 Liu attributed the comment about the "next negative letter" as a conspiracy that his
tenure reviewers had already predetermined a course of action to deny him tenure. Frankel
stated that he already knew which direction he was going at the time of the January 6, 2011
Threat Assessment Team meeting in regards to recommending that Liu be denied tenure.
20

Frankel could not state whether he knew Liu had filed any grievances at the time he
issued his recommendation. He admitted that at some time he found out that Liu filed
grievances, but it never factored into any of his decision-making.
On January 18, 2011, Liu emailed University Faculty Committee Chair Lettie Ramirez
(Ramirez) and asked her to remove Professor McBride from his tenure review committee,
alleging that McBride searched for negative material in his dossier. Liu contended that
McBride wanted to add negative documents to his WPAF. On January 22, 2011, Liu sent a
memo to Frankel and Ramirez requesting the University Faculty Committee conduct an
investigation on the plot to deny him tenure and promotion.
Denial of Tenure and Promotion: College Faculty Committee
The College Faculty Committee consisted of Chair Professor McBride and Professors
Jan, Anthony Lima, Kenneth Pefkaros, and Norman Smothers. On February 7, 2011, the.
College Faculty Committee issued its reports recommending by four votes to one that Liu be
denied tenure and promotion. The reports were almost identical in content. The report noted
Liu's overall positive ratings by student evaluations, but on the average he gave higher grades
than the Department average and he sometimes cut class short and told inappropriate jokes.
The majority believed that Liu's dossier did not contain enough evidence to substantiate
performance and promise into the future in the area of instructional achievement. In regards to
academic achievement, the committee noted that Liu had three published articles and one
article in submission which did not contain enough evidenceto substantiate performance and
promise into the future. The majority believed Liu's university and community service to be
minimal. The one member of the minority strongly objected to the majority's conclusions and
reasoned that Liu should be granted tenure and promotion.
On February 18, 2011, Liu submitted a response to the College Faculty Committee's
report recommending denial of tenure and promotion to the committee and to University
21

Faculty Committee Chair Ramirez. 	Specifically, Liu stated that his GPA target for the
introductory Finance 3300 course was 2.95. Liu wanted the students to have an interest in
finance as a major/career. Liu also argued that other instructors gave a lower overall GP A
because they "hated" students and another Assistant Professor also gave a high GP A to
students. Liu also believed that during the 2009-2010 academic year he served on two
committees and made twice the contributions as his peers and cited the names of other
professors who were granted tenure with less service. Liu blamed McBride as the one who had
played a role in unfairly denying him early tenure and promotion in the past.17 Liu did not
want the committee to reconsider its recommendation, but to transfer his tenure and promotion.
files to Dean Swartz.
On February 28, 2011, the College Faculty Committee issued its report stating that
Liu's rebuttal letter did not persuade the majority to change its original vote.
Grievance Number Three
On February 18, 2011, Liu submitted a grievance to the Provost's Office alleging that
Department Chair Frankel violated the College office hours policy by not holding office hours
on February 7, 2011 and that Professors Mangold and McBride similarly violated the office
hours policy in Winter 2011.
Grievance Number Four
On February 18, 2011, Liu submitted a grievance to the Provost's Office alleging that
Department Chair Frankel manipulated the summary sheet of the Fall 2010 teaching evaluation
17 RTP Policy and Procedures section 6.5 Early Tenure, and 6.5.1: provides:
The normal period of probation is six years. Any deviation from
this standard is unusual and shall require such an unusually strong
profile of performance in all aspects of tenure criteria or other
factors as to make the case unambiguously compelling.
22

summary statistics, especially in dividing instructors into categories of "Finance" and "No
Finance." Liu believed this artificial division had a negative impact on his RTP process.
Dean's Recommendation
On March 8 and 15, 2011, Dean Swartz issued one-paragraph affirmations of the
College Faculty Committee, Department Chair, and Department Faculty Committee
recommendations denying Liu's tenure and promotion. In support of her recommendation, she
cited to RTP Policy and Procedures sections 6.1. and 7.1.
Grievance Number Five
On April 1, 2011, Liu filed a grievance with the Provost's Office that Department Chair
Frankel continued to violate the office hours policy by not holding office hours for the
requisite number of hours in February and March 2011 and McBride did not hold the requisite
number of office hours in Spring Quarter 2011.
Grievance Number Six
On April 25, 2011, Liu submitted a grievance with the Provost's Office alleging that on
March 28, 2011, Dean Swartz "spoke in a firm tone" to him to leave the Valley Business and
Technology (VBT) Building Room 408 when he was checking his emails at a computer. Liu
requested an apology from Dean Swartz. The informal level one meeting was held on
May 9, 2011. According to Liu's subsequent grievance (Grievance Number Eleven, filed on
May 17, 2011 ), Dobb placed a police officer two yards from him during that meeting.
Grievance Number Seven
On April 26, 2011, Liu submitted a grievance with the Provost's Office alleging that
Dean Swartz awarded favorite professors $13,995 for publications based upon an ''ill-made
research policy."
23

Tenure and Promotion: University Faculty Committee
The University Faculty Committee consisted of Committee Chair Professor Ramirez,
and Professors Jessica Weiss, Julie Glass, Iliana Holbrook and Cesar M. Maloles, III
(Maloles). Liu stated that Maloles and Frankel met him at the Chef's Experience China Bistro
Restaurant to discuss his tenure review on October 27, 2010. Because of that meeting, Liu
suspected that Maloles would vote against him as Maloles and Frankel were friends. Maloles
explained in an email that he only met Liu as he was concerned for Liu's mental health and to
express that he would not prejudge his case. When it came time to cast his vote at the
University Faculty Committee, Maloles was very supportive of Liu.
On April 27, 2011, the University Faculty Committee issued its report recommending
Liu be awarded tenure voting four to one and recommending against promotion three votes to
two. The tenure and promotion recommendations emphasized that its conclusion was based
upon Liu's dossier, WPAF, student evaluations and "strictly" on the RTP documents. The
tenure recommendation listed portions of Liu's retention reports from 2006 through 2010 and
concluded that he met the standards for tenure in instructional achievement. The committee
noted some of the disturbing comments in student evaluations which led the minority to vote
against Liu as satisfying the requirement of instructional achievement. In the area of academic
achievement, the report acknowledged that Liu had published three articles in top peer-
reviewed journals, presented papers at several conferences in finance and had a paper which
was a semi-finalist in the Financial Management Association Annual Meeting Competitive
Papers Award program, but noted that he had submitted the same articles for publications for
years. In the area of university and community service, the majority believed Liu could have
done more, but felt he received conflicting advice to concentrate on his publications. The
report made note of Liu's behavioral and ethical issues and explained:
24

Other levels of review have made much of the alleged behavioral
and ethical issues that attend Dr. Liu's candidacy. While the
Majority empathizes with their concerns, the Majority strongly
feels that such issues are not germane to the determination of his
fitness for tenure. Instead, if deemed valid, these issues should
be addressed through different channels.
The minority based its recommendation against tenure upon its opinion that Liu did not
meet the standard that Liu would contribute in the future to the development of the University.
In the report recommending against promotion, it cited the same negative aspects in the tenure
report to deny him a promotion to Associate Professor.
The University Faculty Committee inspected the prior recommendations to determine if
there was any bias in their reports and did not find any. The committee reviewed the emails
and communications from Liu on this matter and all of the tenure and promotion reports at the
various levels. Pursuant to the RTP procedure, the committee is not allowed to review issues
of bias until it is time for them to conduct their review. The committee was unaware of any
grievances filed by Liu and Dobb did not discuss Liu's behavioral issues with them.
Grievance Numbers Eight through Fourteen
On May 5, 2011; Liu submitted a grievance (Grievance Number Eight) with the
Provost's Office alleging that Department Chair Frankel did not assign Finance 4315 course
according to the students' needs, but according to the instructor's desire when to teach the
course. Additionally, Liu alleges that Department Chair Frankel and Dean Swartz assigned
non-finance instructors to teach finance courses.
On May 11, 2011, Liu filed a grievance (Grievance Number Nine) with the Provost's
Office alleging that Dean Swartz and Department Chair Frankel abused their power by
condoning McBride engaging in a full-time business without producing a quality research
publication in exchange for McBride's false statements against Liu in the RTP process.
25

On May 16, 2011, Liu submitted a grievance (Grievance Number Ten) with the
Provost's Office alleging that Dean Swartz appointed her friend, Luanne Meyer, to the
directorship of the Human Investment Research and Education Center. A formal level one
meeting was conducted on May 31, 2011.
On May 17, 2011, Liu submitted a grievance (Grievance Number Eleven) with the
Provost's Orfice alleging that during his informal level one meeting on May 9, 2011, Dobb
was biased by placing a police officer about two yards away from him. A formal level one
meeting was held on June 1, 2011.
On May 27, 2011, Liu submitted a grievance (Grievance Number Twelve) with the
Provost's Office alleging that Professor Frankel had not conducted meaningful research in
years, yet required Liu to do so.
On May 27, 2011, Liu submitted a grievance (Grievance Number Thirteen) with the
Provost's Office alleging that McBride erroneously claimed Department Chair Frankel to be an
AQ professor and that on September 20, 2010, Liu stated during a departmental meeting that a
department professor was not AQ.
On May 27, 2011, Liu submitted a grievance (Grievance Number Fourteen) with the
Provost's Office alleging that on February 4, 2011, Liu discovered that a 30-inch monitor was
purchased for the Dean's Office and sent an email reporting it to the College on
March 28, 2011. Liu believes he is currently being investigated in retaliation for "exposing
corruption."
Denial of Tenure and Promotion: University President's Decision
On May 31, 2011, Liu sent an email to President Qayoumi stating that Liu was going to
be investigated by the CSUEB for his documenting "corruptions" related to office hour policy
violations and the purchase of a 30-inch monitor by the Dean's Office during a budget crisis,
Liu explained that hundreds of students signed a petition in his support. He complained how
26

Dean Swartz gave several raises, chair positions and jobs in exchange for their vote against
Liu. He explained that Department Chair Frankel told him that every recommendation of Liu
would be negative. 18 CFA Chapter President Brian McKenzie also sent an email to President
Qayoumi in support of Liu and that Liu had been the subject of a "misunderstanding."19
On June 1, 2011, President Qayoumi issued his letter stating that he was denying Liu
tenure as Liu's WPAF demonstrated that he did not meet the university standards in the areas
of instructional achievement, academic achievement and university service. Liu was also
notified that his next academic year would be his final year of service (terminal year notice).
Liu was informed that ifhe wanted to have his denial of tenure reconsidered, he should provide
new evidence in the three areas. On June 8, 2011, President Qayoumi issued his letter stating
he was not approving Liu for promotion to Associate Professor as Liu did not meet the
university standards in the areas of instructional achievement, academic achievement and
university service. Qayoumi testified that although the letters were dated June 1 and 8, 2011,
respectively, his decisions on tenure and promotion had been made approximately a week
before the dates on the letter as the letters were drafted by the Academic Affairs Office.
President Qayoumi reviewed between 100 to 150 retention, tenure and promotion issues
as CSUEB President. 20 His general process of review was to have his Chief of Staff21 review
the tenure and promotion files and determine whether all the required materials were present.
In a majority of cases, there was a concurrence of recommendation at all levels. Most of the
18 Department Chair Frankel denied stating this. Frankel's fear of Liu makes it highly
unlikely that he would make such a statement to Liu for fear of what Liu would do.
19 This was not a support letter for Liu to be granted tenure and/or promotion, but in
support of Liu's right to express a dissenting opinion.
20 President Qayoumi averaged about 30 to 40 retention, tenure and promotion reviews
a year.
21 President Qayoumi' s Chief of Staff was also a former chair of the academic senate.
27

President's time was spent when there was a disagreement of recommendation existed at the
different levels of review. President Qayoumi also consulted with the Provost when there was
a disagreement among the levels of review.
President Qayoumi considered tenure decisions to be extremely serious as these
decisions affected the next 20 to 30 years at CSUEB. In the past, he has agreed with, as well
as overruled, a Dean's recommendation, including Dean Swartz, who he overruled in granting
someone tenure on: one occasion and denying someone else tenure on another occasion. He
has also overruled the University Faculty Committee in the past.
President Qayoumi explained that he does not receive any tenure/promotion file
materials until all of the other levels have completed their reviews and issued their
recommendations. When President Qayoumi conducted his review whether to grant or deny
tenure and/or promotion, he reviewed all of the file materials. President Qayoumi considered
Liu's teaching effectiveness to be troublesome, especially when he reviewed the students'
comments about the cancellation of classes or ending classes early and joking sexually. There
were enough students comments in different courses and time periods that President Qayoumi
could not dismiss these comments as aberrant.
Regarding Liu's research, Qayoumi was concerned that Liu only had three published
papers which were early in his career and had no prospects in the pipeline. Qayoumi was also
concerned about Liu's Google, Inc., article and his generalizations about the involvement of
the SEC' s consideration of his article and that Liu did not attribute some of his articles in the
SSRN to CSUEB, but to Purdue University.
Qayoumi believed that Liu's university and community service was minimal in breadth
and depth. Liu had worked on a couple of occasions with a Chinese community group and had
quit one committee in 2007 because it was too much work for an untenured professor.
28

Qayoumi stated that when he looked at Liu's record of instructional achievement,
academic achievement, and service separately, Liu "may appear" to be an acceptable
candidate, but when Qayoumi looked at all three areas together, he had great difficulty
recommending Liu for tenure. Qayoumi admitted that it was unusual to have a candidate that
was very good in all three areas and a tenure candidate could be marginal in one area and still
be granted tenure, but Qayoumi considered Liu to be marginal in all three areas.
Qayoumi was not aware that Liu had filed any grievances and Liu's grievance activity
played no role in Qayoumi's decision. Although a grievance document may come to the
President's Office, Qayoumi did not see any from Liu. Qayoumi explained that a document
will go to his Chief of Staff, and if Qayoumi needed to see it, he would. 22
Other than what was mentioned in the various recommendation reports, Qayoumi was
unaware of any of Liu' s alleged inappropriate behaviors. Qayoumi made his decision without
any discussion with Dean Swartz, Dobb or Frankel. No one suggested to Qayoumi what
decision he should make regarding Liu.
Qayoumi admitted to getting emails from Liu, but explained that he received a
"barrage" of emails daily23 and Liu's emails did not influence his decision. Qayoumi
remembers the gist of Liu's emails being that he was dissatisfied with Dean Swartz and had
concerns about the Department and the College. When Qayoumi received an email from Liu,
he assigned it to the Chief of Staff or Provost to review. The Provost later returned to
Qayoumi stating that Liu's allegations were baseless.
22 As an example, President Qayoumi was showed a June 11, 2011 (after the date of the
President's decision) first level response of one of Liu's grievance which copied Qayoumi.
Qayoumi stated that he had not seen the response.
23 CSUEB has several hundred full-time faculty, several hundred part-time faculty, over
a thousand staff, and 40,000 students.
29

Grievance Numbers Fifteen through Twenty
Between June 9 and 30, 2011, Liu filed five grievances alleging that Liu was unfairly
denied tenure and promotion; Dobb responded to three grievances which were filed against
her; Dean Swartz, Department Chair Frankel, McBride and Mangold took discriminatory
actions against him in his 2009-2010 early tenure and promotion process, 2009-2010 retention
process, and 2010-2011 tenure and promotion process; Dobb retaliated against him for issuing
him a September 20, 2010 reprimand after he sent Dobb an email on September 27, 2010
complaining of Dean Swartz; CSUEB and CFA representatives tried to get him to sign a
settlement agreement that waived his rights; and President Qayoumi retaliated against him for
filing a whistleblower complaint in May 2011.
Grievance Twenty-One was not filed until November 17, 2011.
Penal Code Section 626.4 Withdrawal of Consent Order
Penal Code section 626.4 provides in pertinent part:
(a) The chief administrative officer of a campus or other facility of
a community college, a state university, the university, or a school,
or an officer or employee designated by the chief administrative
officer to maintain order on such campus or facility, may notify a
person that consent to remain on the campus or other facility under
the control of the chief administrative officer has been withdrawn
whenever there is reasonable cause to believe that such person has
willfully disrupted.the orderly operation of such campus or facility.
(c) Consent shall be reinstated by the chief administrative officer
whenever he or she has reason to believe that the presence of the
person from whom consent was withdrawn will not constitute a
substantial and material threat to the orderly operation of the
campus or facility. In no case shall consent be withdrawn for
longer than 14 days from the date upon which consent was initially
withdrawn. The person from whom consent has been withdrawn
may submit a written request for a hearing on the withdrawal
within the two-week period. The written request shall state the
30

address to which notice of hearing is to be sent. The chief
administrative officer shall grant such a hearing not later than
seven days from the date of receipt of the request and shall
immediately mail a written notice of the time, place, and date of
such hearing to such person.
(Emphasis added.)
CSUEB has a "Workplace Safety and Security Policy," which provides in pertinent
part:
California State University recognizes that workplace violence is
a critical problem requiring strict attention and has therefore
adopted a policy of no tolerance towards this problem and
adopted the Work Place Safety and Security Plan, as the campus
general plan to increase workplace safety and security.
Consistent with this policy, acts or threats of physical violence,
including intimidation; harassment, and/or coercion, which
involve or affect the university or which occur on property owned
or operated by the Board of Trustees, will not be tolerated. Acts
or threats of violence include conduct which is sufficiently
severe, offensive, or intimidating to alter the employment
conditions at the University or to create a hostile, abusive, or
intimidating work environment, for one of several employees.
Examples of workplace violence include, but are not limited to
the following:
1. 	All threats or acts of violence occurring on university
premises, regardless of the relationship between the
University and the parties involved in the incident.
Specific examples of conduct that may be considered threats or
acts of violence include, but are not limited to the following:
2. 	Threatening an individual or his/her family, friends,
associates, or property with harm.
31

Lt. Hodges kept a running log of his contacts with Liu. The log included events which
ranged in their degree of peculiarity and seriousness. Lt. Hodges began the log on
May 26, 2006 and it ran through April 7, 2011. 24
On March 1, 2010, Department Administrative Assistant Jeannie Gee (Gee) reported to
the University Police Department (UPD) a verbal altercation she had with Liu where she
believed Liu confronted her regarding the whereabouts of Liu's retention letter. Specifically,
Gee complained that Liu stood to close to her and invaded her personal space.
On March 9, 2010, Dobb sent an email to Liu stating in pertinent part:
In the meantime, I think it best to let you know that your behavior
recently has had the effect [of] frightening or causing concern
with your fellow employees. This has resulted in one of them
seeking assistance from the University Police and others
approaching the Dean in the College of Business.
On or about June 28, 2010, Dean Swartz contacted Lt. Hodges and complained about
Liu's intimidating behavior with her during a meeting where he stated that he would "fight to
the death" over the right to teach a Finance course. Lt. Hodges asked Liu to come to the police
station and asked him what he meant by the statement. Liu did not want to answer his
question.
On June 29, 2010, Liu shared with Lt. Hodges an email from CFA CSUEB President
Eagan that her impression of Dean Swartz based upon Liu's description was that she was a
"rogue dean." On that same day, Lt. Hodges met with Dean Swartz and stated that Liu's
24 The log is 12 pages long, single-spaced. Of those twelve pages, the log makes
reference that on July 15, 2010, Liu showed Lt. Hodges an email from Professor Eagan that her
impression was Dean Swartz was a rogue dean who made unilateral decisions without the input
of faculty and the Provost Office should be made aware of her, and a January 13, 2011 email
where Liu on January 4, 2011, went to the Provost Office and submitted a grievance against
Dean Swartz, and Professors Mangold and McBride for their bias against him. The rest of the
12 pages dealt with Liu's threatening or aberrant behavior.
32

comment on June 28 would not meet the elements of a criminal threat.25 Lt. Hodges later
confirmed his opinion with the Alameda County District Attorney's Office. Dean Swartz
advised Lt. Hodges that Liu would not be returning to teach at CSUEB until the Fall 2010
quarter.
On September 17, 2010, Lt. Hodges received and reviewed Liu "Criminal Actions ... "
email where he accused Dean Swartz of various criminal conduct. Lt. Hodges did not believe
anything stated by Liu in the email could be interpreted as a criminal action.
On September 20, 2010, Dobb issued a written reprimand to Liu stating in pertinent
part:
Over the past few months, two individuals within the College of
Business and Economics have had occasion to call the police in
regards to your behavior. Before we start a new academic year, I
felt it important to write you directly about your behavior and
what our expectations are regarding how you interact with
colleagues and staff within the University.
Remarks like I will "fight to the death for my right to teach
Finance 4315" and behaviors which seem overly aggressive are
inappropriate. I ask that you keep your remarks and actions brief
and to the point when working with colleagues and staff. I would
certainly anticipate that nothing in your behavior would occasion
a call to the police department. If you are having trouble
controlling your behavior or remarks, I would ask that you seek
help either through your Chair or through our Employee
Assistance Program.
Liu sought the assistance of the CFA and Dobb agreed to withdraw the reprimand if Liu
got some help through the Employee Assistance Program (EAP). On October 7, 2010, Liu
notified Dobb that he had enrolled in the EAP.
25 Lt. Hodges had an extensive law enforcement history. He worked as a law
enforcement officer with the Alameda County Sheriffs Department for 36 years and retired at
the rank of lieutenant. He was later hired with CSUEB as a lieutenant.
33

On November 17, 2010, Dean Swartz sent Lt. Hodges an email alerting him that Liu
may have received a negative tenure and promotion review from his department. Lt. Hodges
called Dean Swartz and everything seemed calm.
On January 5, 2011, Department Chair Frankel reported to UPD Officer Mark Engel
that when he told Liu that he would be incorporating some of the students' comments of the
faculty committee into his tenure review, as some of them were valid, Liu replied that if
Frankel put any of those things in his review letter, it would be a traumatic experience. Liu
then reached into the pocket of his trenchcoat and started to pull an object out of his pocket,
fumbled it and dropped it. Frankel thought Liu was reaching for a recording device in his
pocket. Frankel told the officer he was concerned for Liu's mental state.
On January 6, 2011, Chief Davis convened a Threat Assessment Team26 with
Lt. Hodges, Dobb, and Dean Swartz among others. Dobb explained that Liu's behavior was
"unusual" and he was nervous about tenure. She summarized past reports of Liu's behavior.
On February 7, 2011, McBride emailed UPD that the College R TP letters for candidates
had been completed and forwarded. 	The police department continued their visibility at the
College as the letters were placed in the candidate's mailboxes.
On March 3, 2011, Liu went to see Interim Chief Hodges27 (Chief Hodges) that Gee
came from behind Liu and simulated an action with her foot as if she was kicking Liu in the
rear end. On March 4, 2011, Chief Hodges telephoned Associate Dean Jagdish Agrawal
(Agrawal) that Gee simulating a kick toward Liu was not a criminal offense, but that all faculty
and staff should avoid any activity which could be construed as inappropriate and provoking to
Liu.
26 A Threat Assessment Team is a team of core campus representatives to discuss
threatening information and suggest a course of action to the University President.
27 Lt. Hodges had been promoted to Interim UPD Chief of Police.
34

On March 7, 2011, Frankel went to the UPD to complain that Liu had taken photos of
his students before they were coming to class that day. When Frankel spotted Liu doing this,
Frankel became scared that Liu would attack him and had two students escort him to UPD.
Frankel did not want to press charges, but wanted Liu to stop harassing him.
On March 18, 2011, CBE Budget Analyst Autumn McGrath (McGrath) called UPD to
complain about Liu taking photos in the hallway and outside her door. Chief Hodges saw Liu
in the VBT building and asked to speak with him in his office. Liu explained that he was
taking pictures of vacant and unused space. When Chief Hodges suggested that Liu cease from
the activity, Liu asserted his rights to do so. Chief Hodges encouraged Liu to pursue his tenure
review through proper legal and ethical channels. Chief Hodges then contacted McGrath and
informed her that Liu's photography was not a criminal offense, but needed to be handled
administratively through CSUEB and the College.
On April 4, 2011, Associate Dean Agrawal notified Liu that CSUEB retained the
services of an outside investigator, Deborah Allison (Allison), to investigate whether his
conduct violated Education Code section 89535 and other university policies. The investigator
was to interview Liu on April 15, 2011, but the process was delayed due to Liu's unavailability
and lack of response.
In July 2011, Provost office staff8 contacted the President's Office and stated that they
were frightened of Liu and that they didn't want Liu to come to the Provost Office again.29
The President's Chief of Staff directed Dobb to "handle it." Dobb discussed the matter with
the Director of Human Resources and they agreed that Liu could bring his grievances to the
Department of Human Resources and Human Resources staff would take the grievance(s)
upstairs to the Provost's Office. On July 15, 2011, Dobb sent Liu a written notification stating
28 One of the staffpersons was Gina Traversa (Traversa).
29 Dobb was unaware that her staff contacted the President's Office about Liu.
35

that CSUEB had received a complaint of Liu' s behavior from the Provost's Office staff and
that ifhe was to deliver anything to the Provost's Office that he was to use the campus mail or
personally deliver it to the receptionist at the Human Resources Office.
On August 24, 2011, Provost Houpis issued the final discipline suspending Liu from
September 19 through December 13, 2011. The charges included intimidating Gee; attaching a
Global Positioning System (GPS) tracking device to the automobile of Professor Fung so that
he could monitor Fung's whereabouts to determine Fung's outside activities; telling Dean
Swartz that he would "fight to the death" and "sacrifice his life" to teach Finance 4315;
stalking Department Chair Frankel by loitering outside his office armed with a camera to take
photos; and, taking photos of Frankel's students.
On September 28, 2011, at 3:30 p.m., Liu dropped off a grievance package30 at the
President's Office and then walked over to the Provost's Office to drop off the same
documents. The door was locked and when Traversa came to the door she told Liu to go to
Human Resources Office and not to come to the Provost's Office.
On Friday, September 30, 2011, at 11 :32 a.m., Liu sent the following email to the
Human Resources Director Denise Needleman (Needleman), Human Resources and Provost
Office staff, Traversa; and Chief Hodges:
Dear Ms. Needleman and other Colleagues at HR department,
By this email, I want to discuss Ms. Gina Traversa's
discrimination against HR staff - as second class of citizen who
are inferior to her.
Two days ago, I tried to deliver a package to the Provost Office
and Ms. Traversa initially refused to accept the document and
asked me to go to the Human Resources department. The
assumption that Ms. Traversa made about Liu, an assistant
professor of finance, is that Liu is a risky person who will kill
many people in the. [sic] This is obviously a criminal action of
30 The package may have also been the instant unfair practice charge.
36

open discrimination against Liu. However, in this email, let us
temporarily assume Ms. Gina Traversa' s assumption is true.
Then I wish all members of the HR department to think about the
following question.
If Professor Liu is risky and he may kill other people, then why
did Ms. Traversa knowingly sent [sic] Liu to HR?
It is well known that the designated campus location for faculty
members to deliver grievance forms is the Provost Office.
Why is [sic] Ms. Gina Traversa asks staff members of HR to take
care of things that are solely the responsibility of the Provost
Office?
It is very clear that Ms. Gina Traversa thinks that, at CSUEB, she
is a first-class citizen. Just like the old slave-owners, to
Ms. Traversa, all other CSUEB faculty and staff members are the
black slaves. Those black slaves only deserve to work in the
dirty cotton field, and they can not come to where the slave
owners live (the CSUEB Provost Office).
Staff members of HR department are of a[n] inferior class to
Ms. Traversa.
And if Professor Liu kills someone, then staff members of HR
department should die first.
Here, I want to make the clear statement.
I am a very friendly person and I only take peaceful means to
fight corruption, discrimination, and organized fraud at CSUEB.
I will never hurt any of my colleagues at CSUEB, there is no
need to think of Liu as a risky person.
In this email, I demand an immediate investigation by the Office
of Equity and Diversity on Ms. Gina Traversa's open
discrimination against staff members of HR department and Jerry
Liu[.]
I also demand the HR department conduct an investigation on
Ms. Gina Traversa' s frequent failure to come to work - while
being fully paid by the State of California.
Finally, I demand a written apology from Ms. Traversa to staff
members of HR department and me for her act of open
discrimination.
37

Thank you very much for your attention.
I wish you a nice weekend!
Jerry Liu
(Emphasis added.)
After receiving the email, Chief Hodges believed that Liu was intentionally attempting
to intimidate the Human Resources staff as it was addressed to them and Liu referenced
"killing" them. Chief Hodges convened a Threat Assessment Team meeting between
2:00 p.m. and 3:00 p.m. Present were eight team members, Nyassa Love of Risk Management,
Human Resources Manager Andre Johnson, Director of Accessibility Services Katherine
Brown, UPD Commander Kirk Gaston, Associate Vice President of Student Affairs Stan
Hebert, Director of Student Health and Counseling Andrea Wilson, Chief Hodges and Dobb.
Dobb was present telephonically and contributed as a team member. Chief Hodges provided
the team with his chronological history of concerns regarding Liu's behavior since March 2010
and the team discussed the September 30, 2011 email. Chief Hodges believed that Liu was
.insubordinate to a direct order that Dobb gave him on July 15, 2011 and was disruptive by
handing out pamphlets outside of Frankel's classroom.31 The team decided that immediate
action needed to be taken pursuant to Penal Code section 626.4 to order the withdraw of the
university's consent for Liu to be on campus for 14 days.
Chief Hodges contacted CSUEB Chief of Staff Don Sawyer (Sawyer) to discuss getting
authorization for the Penal Code section 626.4 order to withdraw consent. Chief Hodges
discussed all of the details of the basis for the order with Sawyer. As President Leroy
Morishita32 (Morishita) was out-of-town, Sawyer telephoned President Morishita who gave
31 Chief Hodges admitted that the impetus for calling the Threat Assessment Team
meeting was the September 30, 2011 email.
32 President Qayoumi left CSUEB on July 1, 2011.
38

authorization to issue the order. Sawyer then communicated the authorization to Chief
Hodges.33 President Morishita confirmed the issuance of the order on Monday morning.
At approximately 4:33 p.m., UPD officers served Liu with the Penal Code
section 626.4 order near his office. Liu was upset and animated when he received the
document, but eventually complied as he was allowed to finish faxing a PERB unfair charge
proof of service to the CSUEB President's Office. Liu was escorted off campus grounds to his
vehicle after being allowed to pack up some personal items. Liu was informed that he was
forbidden to return to campus and if he returned during the 14-day period, he would be
arrested.
On October 5, 2011, Chief Hodges sent an email to Liu reflecting his interactions with
the Provost's Office staff on the week of September and he was reportedly going inside a
classroom to pass out flyers which made fellow faculty members uneasy. Chief Hodges
explained that the impetus of the Penal Code section 626.4 order was the September 30, 2011
email to Needleman and Human Resources staff. Liu was eventually provided an appeals
hearing and the order was upheld.34
Post Deferral Repugnancy Review
CBA Article 19 sets forth the "Disciplinary Action Procedure" between CFA and CSU.
Disciplinary action, includes dismissal and suspension without pay (CBA section 19.1). There
33 Chief Hodges explained that he had authority to issue the Penal Code section 626.4
order without the University President's authorization in exigent circumstances, but wheneve
he can, he receives authorization from the University President.
r
34 The issue of whether Liu's appeal rights were denied him was not part of the
complaint, only the Penal Code section 626.4 order.
39

are three appeal options provided in the CBA for a disciplinary action,· including an appeal
through the Disciplinary Arbitration Procedure (CBA section 19.10).35
19.9 Within five (5) days of the receipt of the report,r 613 	the
President shall notify the affected faculty unit employee of his/her
decision to rescind, modify, or affirm the pending disciplinary
action. The effective date of such disciplinary action shall be
included in this notification. . ..
Disciplinary Action Appeal Process
19 .10 A faculty unit employee may appeal a pending disciplinary
action by selecting one (1) of the three (3) following appeal
options at the time. s/he files his/her notice of appeal:
a. 	Within ten (10) days ofreceipt of the notification pursuant
to provision 19.9 above, a faculty unit employee or his/her
representative may file a written notice of appeal with the
President in accordance with the Disciplinary Action
Arbitration Procedure of this Article.
Disciplinary Action Arbitration Procedure
19.13 No later than ten (10) days after the decision to submit the
pending disciplinary action to disciplinary action arbitration, CFA
and the Office of the Chancellor shall agree on a mutually
acceptable arbitrator or shall jointly request the American
Arbitration Association to supply a list of arbitrators pursuant to its
rule, and consistent with the further requirements of 19 .15.
19 .14 Upon receipt of the names of proposed arbitrators pursuant
to 19.15, the parties shall alternately strike names from the list
until one (1) person is ultimately designated as the arbitrator. The
decision as to which party strikes first shall be determined by lot.
Any appeal of a disciplinary action shall be considered withdrawn
if the parties have not, within twelve (12) months after the CFA
has submitted the pending disciplinary action to arbitration, agreed
upon a date and scheduled the case for hearing with the arbitrator
35 The other two options offered in the CBA is an appeal before the State Personnel
Board (SPB) or a hearing before the Faculty Hearing Committee selected from the Faculty
Review Panel.
36 This report is prepared for the President by the Reviewing Officer after the
Reviewing Officer conducts a Skelly hearing. (Skelly v. State Personnel Board (1975)
15 Cal.3d 194.)
40

assigned to the case. This provision shall be extended for an
additional thirty (30) days at a time, in cases where the Union has
agreed to dates proposed by an arbitrator which are unacceptable to
the CSU.
Scheduling Arbitration Hearings
19.15 	a. All disciplinary cases involving suspension, dismissal
or demotion appealed to arbitration pursuant to 19.10 (a) above
shall be scheduled for hearing in arbitration no later than ninety
(90) days from the effective date of the disciplimμy action
contained in the notification issued by the President pursuant to
19.9. The process for selecting the arbitrator shall be that
contained in 19.13 and 19.14. If the parties have mutually agreed
on an acceptable arbitrator then they shall submit jointly a list of
suitable hearing dates to the arbitrator within the ninety (90) day
period. If the hearing is estimated by the parties to require more
than one ( 1) day, then the hearing dates should be consecutive
whenever possible. If the arbitrator cannot offer consecutive
dates to the parties, then he/she may offer his/her soonest
available dates. If the parties have not been able to mutually
agree on an acceptable arbitrator, then they shall submit jointly a
list of suitable hearing dates to the American Arbitration
Association and request them to supply pursuant to its rule a list
of arbitrators each of whom has at least one of those dates
available to hear the appeal within the ninety (90) day period. If
the hearing is estimated by the parties to require more than one (1)
day, then the hearing dates should be consecutive whenever
possible. If the arbitrator cannot offer consecutive dates, then
he/she may offer his/her soonest available dates. The parties shall
then use the strike procedure detailed in 19 .14 to designate an
arbitrator to hear the appeal.
Arbitration Rules and Procedures
19 .16 It shall be the function of the arbitrator to determine
whether cause for disciplinary action existed and to affirm, modify,
or deny the sanction or pending sanction.
19 .17 .Absent a mutual agreement to the contrary, if an
arbitrability question exists, there shall be a bifurcated hearing in
which the arbitrator shall determine the arbitrability question after
the submission of post-hearing briefs and prior to hearing the
formal presentations of the parties on the merits of the grievance.
19 .18 Within ten (10) days from the date the hearing has
concluded, the arbitrator shall issue to the parties a written award
41

stating the decision on the issue(s) submitted. Copies of the award
shall be provided to the parties. The award shall be final and
binding on the parties.
19.19 Both the arbitrator's decision and the recommendation of
the faculty hearing committee shall set forth the findings, reasons,
and the conclusions on the issue(s) submitted no later than thirty
(30) days after the award is issued. Copies of the complete
decision shall be provided to the parties.
19 .20 The Voluntary Labor Arbitration Rules of the American
Arbitration Association shall apply except when the specific
language of this Article shall apply.
19 .24 Each party shall bear the expenses of preparing and
presenting its own case both in arbitration and in hearings before
faculty committees. . . . The cost for the services of the arbitrator
shall be borne by the CSU.
(Emphasis added.)
The AAA Voluntary Labor Arbitration Rules effective at the time of the request for
arbitration and the arbitration hearing provided in pertinent part:
Rule 13. Direct Appointment by Parties
If the agreement of the parties names an arbitrator or specifies a
method of appointing an arbitrator, that designat1on or method
shall be followed. The notice of appointment, with the name
and address of the arbitrator, shall be filed with the AAA by the
appointing party. Upon the request of any appointing party, the
AAA shall submit a list of members of the panel from which the
party may, if it so desires, make the appointment.
If the agreement specifies a period of time within which an
arbitrator shall be appointed and any party fails to make an
appointment within that period, the AAA may make the
appointment.
If no period of time is specified in the agreement, the AAA shall
notify the parties to make the appointment and if within ten days
thereafter such arbitrator has not been so appointed, the AAA shall
make the appointment.
e,r ... ,r:i
42

Rule 19. Date, Time, and Place of Hearing
The parties shall respond to requests for hearing dates in a timely
manner, be cooperative in scheduling the earliest practicable date,
and adhere to established deadlines and hearing schedules ....
Rule 26. Order of Proceedings
The arbitrator may vary the normal procedure under which the
initiating party presents its claim, but in any case shall afford full and
equal opportunity to all parties for the presentation of relevant proofs.
Rule 27. Arbitration in the Absence of a Party or Representative
Unless the law provides to the contrary, the arbitration may
proceed in the absence of any party or representative who, after
due notice, fails to be present or fails to obtain a postponement.
An award shall not be made solely on the default ofa party. The
arbitrator shall require the other party to submit such evidence as
may be required for the making of an award.
Rule 31. Closing of Hearings
The arbitrator shall inquire of all parties whether they have any
further proof to offer or witness to be heard. Upon receiving
negative replies or if satisfied that the record is complete, the
arbitrator shall declare the hearings closed and a minute thereof
shall be recorded. If briefs or other documents are to be filed, the
hearings shall be declared closed as of the final date set by the
arbitrator for filing with the AAA. ...
Rule 46. Interpretation and Application of Rules
The arbitrator shall interpret and apply these rules insofar as they
relate to the arbitrator's powers and duties. . . . All other rules
shall be interpreted and applied by the AAA. l37l
(Emphasis added.)
37 Official notice is taken of these rules. Both parties have cited them in support of
their arguments.
43

Selection/Appointment of Arbitrator and Scheduling of Hearing
On August 24, 2011, Provost Houpis issued the final discipline suspending Liu from
September 19 through December 13, 2011. On September 22, 2011, Liu appealed the
suspension to arbitration. On October 4, 2011, University Counsel Andrea Gunn (Gunn)
emailed Liu and volunteered to write AAA to jointly request a list of arbitrators. On
October 18, 2011, Gunn emailed Liu again, in order that she may request a list of arbitrators
and asked for Liu to reply by the next day. Gunn stated her availability for an arbitration
hearing between January 23 through 27 and February 6 through 29, 2012. She stated that if
she did not hear back from Liu by the next day, she would write AAA.
On October 19, 2011, Liu responded that he was busy dealing with another issue,
needed to finish a financial document and consult with a CFA representative about arbitrators
and would write back to Gunn before October 30, 2011. On October 19, 2011, Gunn
responded that Liu's delays placed them beyond the CBA deadline and she was only asking
Liu's availability for hearing. On October 30, 2011, Liu emailed Gunn that he had a "VIP"
visitor and would have to travel with the visitor until November 2011, but he would send her a
draft letter before December 1, 2011.
On November 3, 2011, Provost Houpis issued the final disciplinary letter terminating
Liu effective November 21, 2011.38 On November 7, 2011, Gunn emailed Liu confirming that
he intended to appeal the termination and she would draft a letter to AAA regarding Liu's
38 The charges included: walking into Associate Dean Agrawal's office uninvited,
asking him about his record of intellectual contributions and threatening to expose him to the
New York Times; leaving several pages of material about department professors' grading in
Professor Satin's and Professor Jan's classes for their students without their permission; passed
out the same materials right before Professor Jin-Wen Yang's class without her permission;
. distributing materials in classrooms and identifying some professors, such a Professor
Lowenthal, as being one of the faculty issuing students a low GP A; frightening Traversa on
September 29, 2011 and sending a threatening email on September 30, 2011; and lurking
outside three professor's offices during their office hours.
44

appeals requesting the "strike list(s)." Gunn requested Liu's availability for hearing over the	appeals requesting the "strike list(s)." Gunn requested Liu's availability for hearing over the
next three to six months so that the process would not be delayed any further. 	On	next three to six months so that the process would not be delayed any further. On
November 8, 2011, Gunn sent an email to AAA and copied Liu requesting a list of arbitrators	November 8, 2011, Gunn sent an email to AAA and copied Liu requesting a list
of
arbitrators
and that the parties would alternately strike the names on the list until one name was left.	and that the parties would alternately strike the names on the list until one name was left.
Gunn cited to CBA section 19.15(a).	Gumi cited to CBA section 19.15(a).
On November 18, 2011, AAA sent a letter by email to Liu and Gunn stating that the	On November 18, 2011, AAA sent a letter by email to Liu and Gunn stating that the
arbitration would be conducted pursuant to the AAA Labor Arbitration Rules and the parties	arbitration would be conducted pursuant to the AAA Labor Arbitration Rules and the parties
should jointly submit a list
of
suitable dates to the AAA pursuant to CBA section 19.15 by	should jointly submit a list of suitable dates to the AAA pursuant to CBA section 19.15 by
November 21, 2011. AAA specified that if it did not get the dates by November 21, 2011, it	November 21, 2011. AAA specified that
if
it did not get the dates by November 21, 2011, it
would provide a list
of
arbitrators with dates available to hear the dates within a 90-day period.	would provide a list of arbitrators with dates available to hear the dates within a 90-day period.
Gunn provided dates in January and February 2012 and Liu provided dates in April, May and	Gunn provided dates in January and February 2012 and Liu provided dates in April, May and
June 2012. AAA then asked Liu to provide dates within a 90-day period.	June 2012. AAA then asked Liu to provide dates within a 90-day period.
On November 29, 2011, AAA sent a letter by email to Liu and Gunn stating that it was	On November 29, 2011, AAA sent a letter by email to Liu and Gunn stating that it was
not able to find mutually agreeable hearing dates within 90 days and it would move forward	not able to find mutually agreeable hearing dates within 90 days and it would move forward
with arbitrator selection. The parties were provided a list
of
ten arbitrators and they were to	with arbitrator selection. The parties were provided a list of ten arbitrators and they were to
alternately strike names
of
arbitrators until they had one arbitrator left by December 9, 2011.	alternately strike names of arbitrators until they had one arbitrator left by December 9, 2011.
On December 2, 2011, Gunn sent Liu an email expressing she wanted to set up a	On December 2, 2011, Gunn sent Liu an email expressing she wanted to set up a
teleconference	teleconference call on December 6 or 7, 2011, to strike the names of arbitrators. Gunn	call on December 6 or 7, 2011, to strike the names
of
arbitrators. Gunn
estimated that it would not take more than an hour. On December 5, 2011, Liu responded that	estimated that it would not take more than an hour. On December 5, 2011, Liu responded that
he did not want to strike arbitrators over the phone due to his limitations in speaking the	he did not want to strike arbitrators over the phone due to his limitations in speaking the
English language and that this was too important to speak over the phone. Liu stated he would	English language and that this was too important to speak over the phone. Liu stated he would
write AAA the next day about arbitration issues and either he or AAA would get back to her.	write AAA the next day about arbitration iss.ues and either he or AAA would get back to her.
That	That same day, Gunn wrote AAA stating that she did not want to meet with Liu in-person due	same day, Gunn wrote AAA stating that she did not want to meet with Liu in-person due
to the cost of flying from Long Beach. She stated she could offer video-conference or Skype.	to the cost of flying from Long Beach. She stated she could offer video-conference or Skype.
45	45

On December 13, 2011, Liu emailed CSUEB President Morishita, Gunn and AAA
requesting CSUEB agree to extension to strike arbitrators until January 20, 2011, because he
needed to concentrate on his PERB litigation. Gunn responded the same day and did not agree
to an extension. Gunn also wrote to AAA challenging two of the arbitrators because they had
been employed at CSUEB in the past.
On December 22, 2011, AAA sent a letter by email, notifying Liu and Gunn that if the
parties had not engaged in the strike procedure for selecting an arbitrator within the next ten
days, AAA would appoint an arbitrator pursuant to Labor Arbitration Rule 13. That same day
Liu blamed CSUEB for not contacting him after December 13, 2011, and tasked AAA with
having CSUEB arrange meetings with him within ten days. Then Liu emailed Gunn to meet
with him within ten days. Gunn said she was unavailable until January 3, 2012, but was happy
to schedule a brief conference call on or after that date. Gunn explained that it was a process
that they could take care of in a few minutes. Gunn asked Liu' s availability on that day or
after January 3, 2012.39 Liu stated that since Gunn was not available in ten days then he would
contact her after January 3, 2012.
On December 27, 2011, AAA emailed Liu and Gunn to provide their availability to
each other no later than January 3, 2012. On December 29, 2011, Gunn provided Liu with a
five-hour window to conduct a telephonic conference on January 3, 2012. On
December 30, 2011, AAA emailed Liu if he was available at any time during the five-hour
window that Gunn was available. On January 2, 2012, at 9:40 a.m.~ Gunn notified AAA that
she had not yet heard from Liu as to his availability for a call on January 3, 2012. On
January 2, 2012 at 11 :31 p.m., Liu sent an email stating that he was "booked" this week but
was available to meet her at the campus on January 9.and 16, 2012. On January 3, 2012, AAA
notified the parties that absent receipt of a name of a mutually selected arbitrator, AAA would
39 January 1, 2012, fell on a Sunday. January 2, 2012, was a CSU holiday.
46

appoint an arbitrator the next day pursuant to the December 22, 2011 letter. That same day,
Liu sent an email to Gunn that because of the importance of the case, an arbitrator must be
selected by a meeting at CSUEB.
On January 4, 2012, Liu emailed AAA accusing them of violating Labor Arbitration
Rule 13 and CBA section 19 .14 as he was not allowed to strike names of arbitrators. On
January 13, 2012, AAA notified Liu that the parties did not select the arbitrator within the
appointed time and AAA would select the arbitrator soon. Again, Liu opposed AAA as
depriving him from his CBA right to participate in the selection of the arbitrator.
On January 17, 2012, Liu emailed Gunn and offered to meet with her face-to-face on
January 18 and 19, 2012, to strike arbitrators. Gunn replied that AAA had already made its
decision to appoint an arbitrator, and if not, would do so soon.
On January 26, 2012, AAA sent a letter to Liu and Gunn stating that Arbitrator
Catherine Harris (Harris) had been appointed to hear the disciplinary arbitrations. The parties
were given until February 10, 2012, to file any objection to Arbitrator Harris serving as the
arbitrator. Within the letter Arbitrator Harris disclosed that she had been selected to arbitrate a
matter between CFA and CSU on May 14 and 15, 2012, in Northridge, California. On
February 10, 2012, Liu filed his objections to the appointment of Arbitrator Harris,40 which
included being deprived of the ability to select an arbitrator. CSU opposed Liu's objections.
On February 28, 2012, AAA decided to reaffirm Arbitrator Harris as the arbitrator appointed to
the case.
Subsequent to the objection letter, Liu attempted on multiple occasions in the months of
February 2012 to meet with CSU representatives to select an arbitrator face-to-face, but
CSUEB representatives refused and desired to proceed to arbitration.
40 Most of the objections have been previously addressed in the ALJ's ruling in the
notice of deferral. For purposes of post-deferral review, the remaining objection is whether
Liu was denied his CBA right to participate in the selection of an arbitrator.
47

On March 5, 2012, Liu emailed AAA and Gunn agreeing to a phone conference to
select arbitrators. He asked to be contacted on March 13, 2012. On March 9, 2012, Gunn
emailed AAA and Liu that CSUEB would be willing to engage in a teleconference call to
engage in the strike process if it occurred on March 13 and 14, 2012. CSUEB specified that
this was its final attempt to engage in the arbitrator selection process. On March 13, 2012, at
11 :20 a.m., Gunn emailed AAA and Liu stating she was waiting to hear back from Liu to
schedule the dates for the telephone call on March 14 and 15. Gunn emailed Liu again at
5:28 p.m. On March 15, 2012, at 12:34 a.m., Liu sent AAA (not Gunn) an email stating that he
was out of town and would set up a meeting with CSUEB in early April. After the email was
eventually forwarded to Gunn, Gunn stated the CSUEB would not wait until early April and
withdrew its offer of March 9 to engage in a teleconference call to strike arbitrators. On
March 16, 2012, Liu sent an email blaming the whole matter on Gunn. He admitted, however,
that he told Gunn that she could contact him by email on March 13.
Disciplinary Arbitration Proceedings
On April 18, 2012, AAA set hearing dates for August 21 through 24, 2012. Arbitrator
Harris conducted arbitration hearings on August 21, 22, 23 and 24, 2012, and Liu represented
himself with Mark Hostetter, Esq. (Hostetter) present on some of these days as his advisory
attorney. In his opening statement, Liu contended that he was being suspended and terminated
because of his filing of grievances and his whistleblowing.41 During the first four days of
hearing, Liu caused delay in the proceedings by constantly interrupting CSUEB's direct
examination to make an argument in support of his case; provide unsworn testimony to
contradict the witness; asking questions about the City of Bell; prolonging witness testimony
by editorializing; summoning the California Highway Patrol to take a report against University
41 During Liu's opening statement at the arbitration, the arbitrator acknowledged the
potential relevance of the filing of grievances prior to the adverse action to his defense.
48

Counsel; refusing to proceed with the hearing for a three-hour period because he needed to
speak to his advisory attorney, Hostetter; voicing objection to testimony he believed to be
inaccurate; and arriving an hour late for the hearing. Due to these delays, at the end of the
fourth day, CSUEB was only able to finish eight of the fifteen to sixteen witnesses it had
scheduled.
On August 30, 2012, AAA set September 17 and 18, November 27 and 28, and
December 10 and 11, 2012, for further days of hearing.
On September 16, 2012, the day before the September 17, 2012 hearing date, Liu sent
an email to CSU Vice Chancellor of Human Resources Gail Brooks (Brooks) which stated:
I would like to keep you updated on the progress on both the
PERB hearing and Arbitration of CSU's retaliations on Liu.
In these hearings, CSU lawyer Dawn Theodora[421 and CSUEB
Interim Associate Provost Linda Dobb pressed each and every
CSU witness to lie under oath on basic facts.
As a matter of fact, it was so easy for Jerry Liu to expose these
perjuries at the hearings that even the CSUEB police officers in
the room were laughing at these obvious liars.
At the PERB hearing, Liu has presented solid proofs that CSUEB
engaged [in] audacious retaliations against Liu's protected
activities. It was also very clear at the hearing that CSU was
pushing these employees to commit perjuries.
Please be sure that PERJURY charges will be filed by Liu against
all the people who ha[ve] committed the felony,
Here is an incomplete name list
Deborah Allison
Nancy Mangold
Micah Frankel
Lettie Ramirez
J agdish Agrawal
Jeannie Gee
42 Theodora had replaced Gunn as University Counsel assigned to Liu's disciplinary
arbitration.
49

Scott Fung
Jame[s] Hodges
Linda Dobb
Mo Qayoumi
Please understand that I am sending this email to you solely out
of my good will.
I urge [the] highest leaders of CSU system [to] think twice about
what charges that these people/employees will do 	after they get
out of prison for perjuries committed under CSUEB
intimidation/pressure.
Finally, I ask you seriously consider the scenario of Jerry Liu,
who has solid evidence on the perjuries,' sending over 10 CSU
employees to prison before the end of 2012_[43]
The email was mailed to the "incomplete name list" as well as others. Those who were
addressees of the email who testified during the first four days of hearing in August 2012 were
Houpis, Alan Monat, Darrell Haydon, Allison, Gee, Professor Fung, Professor Mangold and
Andre Johnson. Those who were addressees of the email and who testified on September 17
and 18, 2012 were Aubrey Wade, McGrath, Agrawal, Dobb and Frankel. After this, Liu
emailed some of these addressees asking for their physical addresses so that he could serve a
legal document related to a perjury charge. The addressees were supposed to provide it to Liu
by the afternoon of September 18, 2012.
Arbitrator Harris conducted hearings on September 17, 2012, and expressed great
concern over Liu's email sent the day before, however, the arbitration hearing went forward.44
43 Official notice is taken of the transcripts of the arbitration proceedings and this email.
Liu included a compact disc of the transcript of the proceedings with his argument opposing
deferral. 	·
44 In the PERB proceedings on September 13, 2012, the ALJ severely rebuked Liu for
inquiring how to prosecute witnesses for perjury in the presence of Dobb who he knew was to
testify for CSUEB soon. After the rebuke and at the request of the ALJ, Liu apologized to
Dobb. The hearing went forward. 	It is befuddling that Liu repeated these actions which were
more blatant than in his arbitration proceedings only three days later.
50

On September 18, 2012, the hearing began with CSUEB calling Frankel as a witness.
After CSUEB began to ask questions to Frankel about the retention, tenure and promotion
process, Liu vehemently objected that CSUEB was attempting drag out the hearing as the
arbitration concerned his suspension and termination and not his denial of tenure and
promotion. The arbitrator stated that Liu's objection had already been overruled. On multiple
occasions, Liu demanded that the arbitrator allow him to present his case that day, even if
CSUEB had not concluded its case, but his request was ruled to be out of order.
DR. LIU: I'm very respectful to the arbitrator. I came here. I
paid extra money to hire lawyer. I came here for six days. I'm
hoping a chance for me to present. This looks to me will never
happen. I know this will never happen. The arbitrator's intention
was to try to delay this forever and cause me extra pain and
suffering. I have to quit.
THE ARBITRATOR: Dr. Liu, are you withdrawing your appeal?
DR. LIU: I will email you later.
(Arbitration Transcript, page 1066: 15-24.)
THE ARBITRATOR: Dr. Liu, if you walk out of the hearing,
you are, in essence, abandoning your appeal.
DR. LIU: I ask the arbitrator to give me a chance to present
today.
THE ARBITRATOR: I will give you a full opportunity to
present your case as soon as she finishes her case.
DR. LIU: Not until I become homeless, jobless, and not until
2013.
THE ARBITRATOR: Dr. Liu, she has the burden of proof.
DR. LIU: She has the burden of killing the time forever. This is
a game two years old can see.
(Arbitration Transcript, page 1068:9-22.)
THE ARBITRATOR: You are trying to put your witnesses on in
the middle of her case, which is totally inappropriate.
51

DR. LIU: You allow her case to go on forever.
DR. LIU: Are you going to allow me to present today?
THE ARBITRATOR: I am allowing you to present your case
after she concludes her case. So if you're going to 	you're
abandoning your appeal, Dr. Liu. Is that what you want to do?
DR. LIU: I'm not abandoning my appeal.
THE ARBITRATOR: You are. Yes,, you are.
(Dr. Liu left the hearing room.)
(Arbitration Transcript, page 1070:1~5, 17-25.)
Before Liu left the hearing room, he deposited three binders on the arbitrators desk
containing his 43 grievances and rebuttal documents to the termination and suspension actions.
After Liu left, the arbitrator invited the CSUEB to file a motion to dismiss the appeal for
failure to prosecute or to consider whether the CSUEB had met its burden based upon the
evidence presented. The CSUEB was to file its motion by October 2, 2012, with Liu
responding by October 16, 2012.
On September 19, 2012, Liu wrote the arbitrator that he had no intention of returning to
the arbitration at any time, but the arbitrator should find in his favor based upon the evidence
presented in his cross-examination of the CSUEB witnesses that he had been retaliated against
because of his grievance filing and whistleblowing activities. The arbitrator replied that absent
an agreement to conclude the matter in a manner which would allow both parties the right to
have a full opportunity to present their cases, the arbitrator would entertain a motion to dismiss
the appeal or allow CSUEB to complete its case.
52

Issuance of Award
On September 27, 2012, Liu emailed AAA that the arbitration ended on
September 18, 2012, and the award should be issued according to the timelines set forth in
CBA sections 19.18 and 19.19.
On October 2, 2012, CSUEB filed its motion to dismiss the appeals as Liu abandoned
his appeals. On October 16, 2012, Liu submitted his opposition of the motion and requested
the arbitrator to rule in his favor based upon the evidence he brought forth from witnesses on
his cross-examination and the binders of evidence he left with the arbitrator on September 18,
. 2012.45
On October 17, 2012, AAA notified Liu that the remaining days of hearing had not
been vacated and will not be vacated unless the parties mutually agree or by order of the
arbitrator.
On November 2, 2012, Liu emailed the PERB ALJ stating that the arbitration was
"finished" and that the ALJ should set aside two days of hearing to conduct the suspension and
termination retaliation actions. The ALJ refused to schedule any further PERB hearings until
CSUEB had a chance to respond. 	CSUEB informed the ALJ of the pending motions. The ALJ
informed the parties that he would wait for Arbitrator Harris's ruling on the motions.
On November 15, 2012, Arbitrator Harris issued her "Arbitrator's Rulings on Cross
Motions of Parties and Final Award." The arbitrator dismissed the appeals and found that Liu
failed to adhere to AAA Labor Arbitration Rules 19 and 26; interfered with the CSUEB's
presentation of its case; defied the arbitrator's directives and rulings; and undermined the
integrity of the hearing.
45 These three binders of evidence (grievances and rebuttal of disciplinary action) were
never marked and admitted as exhibits as copies were not provided to CSUEB. The binders
were never authenticated other than a representation that they were produced at the PERB
hearing ..
53

Arbitrator Harris chronicled in her award Liu's misbehavior on each day of hearing and.
how Liu would not follow the arbitrator's directives. These descriptions included interrupting
the CSUEB's direct examination to make arguments; providing unsworn testimony in an effort
to contradict the witness; making statements instead of cross-examining the witness;
editorializing when the witness gave a response he did not like; justifying his bad conduct by
his lack of English proficiency and familiarity with the legal process; accusing CSUEB
Counsel of misconduct; summoning the California Highway Patrol to take a report; refusing to
resume the hearing until he was able to contact his advisory attorney who was not present that
day causing a three-hour delay; arguing with the witness and ignoring the admonitions of the
arbitrator; commanding the arbitrator not to question his integrity; accusing CSUEB Counsel
and the CSUEB representative of using hand and facial signals to coach witnesses; counting
out loud the number of objections made by CSUEB Counsel even after being warned by the
arbitrator to cease; appearing late for the hearing; sending emails to CSUEB witnesses who it
intended to call that he would be filing perjury charges against them which would cause them
to go to prison; sat in the corner of the room instead of the table where the hearing was
occurring; raising his voice to an unacceptable level; demanding that he be allowed to put on
his case even though CSUEB had not completed his case or he would quit; and finally, walking
out of the hearing when the arbitrator declined his request to wait until CSUEB completed its
case.
In her ruling, Arbitrator Harris explained Liu's undermining of the integrity of the
hearing.
By contacting University witnesses in a manner that discourages
them from coming forward to give testimony, Dr. Liu has 	·
undermined the integrity of the arbitration process. In the
arbitrator's view, the e-mail sent to Vice Chancellor Brooks, as
well as witnesses that the University was intending to call,
contains language that could reasonably be interpreted to rise to
the level of threats and intimidation. E-mails sent to the opposing
54

party's witnesses that insinuate that their testimony may result in
"perjury charges" and "prison" are obviously designed to
discourage testimony favorable to the opposing party. By
sending e-mails of this nature, Dr. Liu has shown profound
disrespect for the arbitration process. Indeed, Dr. Liu, when
confronted by the arbitrator on the record at the hearing, would
only represent to the arbitrator that he would refrain from sending
additional e-mails to University witnesses for the duration of the
hearing. By engaging in conduct tantamount to witness
tampering. Dr. Liu has forfeited the right to pursue an appeal of
the University's disciplinary actions.
Being entitled to a day in court does not imply a right to use any
means, however inappropriate or unethical, in order to influence
the outcome of the proceeding. Even if Dr. Liu were to now
agree to conduct himself in a manner consistent with AAA Labor
Arbitration Rules and the arbitrator's directives, the damage
already done to the hearing process by Dr. Liu is incalculable,
i.e., there is no way of guaranteeing that witnesses who would be
called to any future hearing would be able to testify without fear
of repercussions. Where a party has persisted in a course of
conduct that threatens the integrity of the proceeding, the
arbitrator has no other alternative than to exercise her inherent
authority to decline to resolve the merits of the appeal and to
dismiss the appeal in its entirety. Any other result would reward
Dr. Liu for flagrant misconduct and undermine the effectiveness
of the dispute resolution procedure negotiated by the University
and the Union. In sum, if a party deliberately taints the integrity
of the hearing process, that party is no longer entitled to a hearing
or a decision.
(Italics in original.)
As stated by the arbitrator in the conclusion of her award:
In reaching her conclusion, the arbitrator has specifically declined
to resolve the "just cause" issue as it pertains to Dr. Liu's
suspension and termination. 	Such a determination cannot be
fairly made in the absence of a complete record and a fair hearing
process that allows each party a full and fair opportunity to
present its evidence and arguments. If a party will not allow the
arbitrator to manage the hearing in a manner that affords each
party minimal standards of due process, that party is no longer
entitled to a resolution of the dispute on the merits. As
demonstrated by the voluminous record, Dr. Liu's inappropriate
conduct permeated the hearing but reached a crescendo when he
presented the arbitrator with an ultimatum, i.e., either allow me to
present my case prior to completion of the University's case or I
quit. To date, Dr. Liu continues to insist that he has no intention
55

of resuming the hearing. Viewing his conduct in its totality,
Dr. Liu has engaged in a wide array of inappropriate tactics, some
of which have inspired fear and alarm on the part of University
employees and managers. An athlete who repeatedly violates the
rules of the game will be ejected by the neutral umpire or referee.
Likewise, a party who persistently refuses to comply with AAA
Labor Arbitration Rules, or to defer to the arbitrator's judgment
as to the appropriate procedures for insuring a fair hearing
process, is no longer entitled to an appeal of disciplinary action.
For all of the above-stated reasons, the arbitrator has no other
reasonable alternative other than to dismiss Dr. Liu's appeal in its
entirety.
ISSUES
1. 	Did CSUEB retaliate against Liu by denying him tenure and promotion because
of the grievances he filed and grievance meetings he attended?
2. 	Did C.SUEB retaliate against Liu by issuing a Penal Code section 626.4 order
restricting him from campus grounds for 14 days because of the grievances he filed and
grievance meetings he attended?
3. 	Should Arbitrator Harris's award be deemed repugnant to HEERA?
CONCLUSIONS OF LAW
Retaliation for Filing Grievances and Attending Grievance Meetings
Higher education employees have the right to "form, join and participate in the
activities of employee organizations of their own choosing." (HEERA, § 3565.) A higher
education employer violates this right when it imposes reprisals on employees because of their
participation in protected activities. (HEERA, § 3571, subd. (a).) To demonstrate that an
employer discriminated or retaliated against an employee in violation of HEERA
section 357l(a), the charging party must show that: (1) the employee exercised rights under
HEERA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took
adverse action against the employee; and (4) the employer took the action because of the
56

exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210
(Novato).)
Protected Activities
It is undisputed that Liu filed approximately 20 grievances between November 17, 2010
and June 30, 2011, on a number of different topics related to his employment. He also
attended grievance meetings on May 31, 2011 (Grievance One); March 9, 2011 (Grievance
Two); May 9, 2011 (Grievance Six, informal meeting); and May 31, 2011 (Grievance Ten).·
Filing grievances and participating in grievance meetings pursuant to the CBA constitute
protected activities pursuant to HEERA section 3565. (Trustees of the California State
University (2009) PERB Decision No. 2038-H, p. 10.)
It is also undisputed that Liu sent a number of emails very critical of his Department
Chair and College Dean including a February 1, 2010 email to President Qayoumi and Provost
Houpis criticizing the Dean for hiring "low-quality candidates," paying them above market
salaries, and treating her friends favorably; June 1 and 29, 2010 emails to Provost Houpis that
he was treated disfavorably by not being assigned to teach an Options and Futures course; a
September 17, 2010 email to Dobb expressing Liu's personal views that Dean Swartz pushed
staff to file false police reports against him, played favorites, was unfair to him in the RTP
process, and jeopardized accreditation based on the candidates she hired; and a May 3 1, 2011,
email contending that he was being investigated for his disclosure of office-hour policy
violations and the purchase of a 30-inch monitor.
HEERA section 3567 provides in pertinent part:
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;
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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.
(Eμiphasis added.)
In Regents of the University of California (1991) PERB Decision No. 872-H, the Board
held that while HEERA section 3567 grants employees a right to file grievances without the
interference of their exclusive representative, it does not grant a statutory right to employees to
represent themselves individually in their employment relations with their employer. In
concluding that a higher education employee had not engaged in activity covered by HEERA,
the Board relied heavily on the fact that the employee's activities were entirely personal in
nature and not an extension of concerted action .. (Regents of the University of California
(2010) PERB Decision No. 2153-H.) The Board has held that employee complaints to
employers are protected when those complaints "are a logical continuation of group activity."
(County of Riverside (2009) PERB Decision No. 2090-M (Riverside); Los Angeles Unified
School District (2003) PERB Decision No. 1552 (Los Angeles).) Where, howe,ver, an
employee's complaint is undertaken alone and for his sole benefit, that individual's conduct is
not protected. (Riverside; Los Angeles; Oakdale Union Elementary School District (1998)
PERB Decision No. 1246.)
Liu's emails to various administrators are better characterized as a complaint
undertaken for his own benefit versus a continuation of group activity. His email's were sent
on his behalf and expressed his own personal views. While some of his complaints were
broadly categorized under the auspices of favoritism and discrimination, they eventually
pertained to how he was paid, assigned classes, and treated under the RTP process by various
administrators. These emails therefore will not be considered protected activity under
HEERA.
58

Adverse Action
A denial of tenure and promotion constitute an adverse action. (Bellevue Union
Elementary School District (2003) PERB Decision No. 1561; McFarland Unified School
District (1990) PERB Decision No. 786 (McFarland), County of Tehama (2010) PERB
Decision No. 2122-M, State of California (Department of Parks and Recreation) (1983) PER
Decision No. 328-S.) As a Penal Code section 626.4 order essentially places an employee on
involuntary administrative leave, it is also found to constitute an adverse action. (Oakland
Unified School District (2003) PERB Decision No. 1529 (Oakland).) Liu has satisfied this
element in establishing that an adverse action has been taken against him by the employer.
B
Knowledge of Protected Activities and Unlawful Motive
1. 	Decisionmaker Liability - Knowledge of Protected Activities
The decisionmaker who denied Liu's tenure and promotion was President Qayoumi.
The decisionmaker who issued the Penal Code section 626.4 order restricting Liu from campus
grounds was President Morishita.
President Qayoumi was unaware of any ofLiu's grievance activity. President Qayoumi
testified without contradiction that he was not made aware of CSUEB grievances, unless it was
required of him. As President Morishita was not called as a witness by Liu, it was never
established whether he was aware of Liu's grievance activities. The last grievance filed by Liu
before President Morishita's September 30, 2011 decision restricting him from campus was on
June 30, 2011 (Grievance Twenty); when President Qayoumi was still the University
President. The first grievance filed by Liu under the tenure of President's Morishita was not
until November 21, 2011, almost two months after the Penal Code section 626.4 order. As it
was not established that either President Qayoumi or President Morishita were aware of Liu's
grievance activity before they denied tenure/promotion or issued the Penal Code section 626.4
order, their actions as the decisionmaker cannot be deemed to be a violation ofHEERA.
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2. 	Subordinate Bias Liability
Pursuant to County of Riverside (2011) PERB Decision 2184, under the theory of
subordinate bias liability theory, a supervisor's unlawful motive may be imputed to a
decisionmaker when (1) the supervisor's recommendation, evaluation, or report was motivated
by the employee's protected activity; (2) the supervisor intended for his or her conduct to
result in an adverse action; and (3) the supervisor's conduct caused the decisionmaker to take
adverse action against the employee.46 (Id. at p. 15.) In this case, it is not disputed that some
of the retention/tenure/promotion committees as well as the Department Chair/College Dean
intended that their recommendations be taken seriously and result in an adverse action (denial
of tenure/promotion) to be taken against Liu. Likewise, the Threat Assessment Team also
intended that their recommendations be taken serious and the President issue a Penal Code
section 626.4 order to Liu. It is also undisputed that these Presidents based their actions on
some of the contents of the committee/team recommendations. The real issue at dispute is the
first element as to whether these committees/team recommendations were motivated by Liu's
protected activity.
a. 	Decision to Deny Tenure/Promotion - Knowledge of Protected Activities
President Qayoumi's decision to deny tenure/promotion was based upon Liu's marginal
performance in the three areas of instructional achievement, academic achievement and
university and community service. Specifically, President Qayoumi cited to concerns of
student comments regarding the cancellation of classes, ending classes early and sexual joking;
a lack of published papers with no prospects in the pipeline; attributing his work on the SSRN
to Purdue University rather than CSUEB; Liu's generalizations about the involvement of the
46 This case is somewhat distinctive in that the recommendation to take an adverse
action was not just made from a "supervisor," but also from coworkers such as faculty and the
Department Chair. 	·
60

SEC in the consideration of his Google, Inc., article; and his minimal involvement in university
and community service, including quitting one committee because it was too much work. .
However, these concerns had been already raised by the Department Faculty
Committees (March 1, 2010 retention report and the November 5, 2010 tenure report) before
Liu filed his first grievance on November 17, 2010, and in the Department Faculty
Committee's Subsequent Recommendation Report dated December 17, 2010.47 Professor
Mangold' s testimony that she was unaware of Liu' s filing of grievances or intent to file
grievances during the preparation and drafting of the November 5, 2010 tenure report and the
December 17, 2010 subsequent tenure report was uncontradicted. Additionally, the department
faculty committee members never discussed Liu filing any grievances. In short, Liu never
demonstrated that these two committees consisting of Professors McBride, Jan and Satin
(department retention committee) and Professors Mangold, Lubwama and Satin (department
tenure committee) were motivated by Liu's grievance filing in issuing their recommendations.
Because President Qayoumi based his decision upon these committees' representations in their
reports, Liu has failed to demonstrate the decisionmaker's knowledge of his protected activity
or subordinate bias liability. As such, Liu has failed to demonstrate a prima facie case of
retaliation for the denial of tenure/promotion and that allegation is dismissed.
47 The March 1, 2010, Department Faculty Committee report on retention for the
2010-2011 academic year referred to the SSRN issue, the sensationalizing of the Google, Inc.,
article, and Liu's quitting the CBE Curriculum Committee because it was too much work. The
November 15, 2010, Department Faculty Committee report referred to the lack of published
work and the limited university and community service. The December 17, 2010 Department
Faculty Committee subsequent tenure report referred to the student comments regarding
cutting short classes and sexual joking, and the lack of publications with no submissions in the
pipeline.
61

b. 	Decision to Issue Penal Code Section 626.4 Order
1) Knowledge of Protected Activities
The decision to recommend the issuance of the Penal Code section 626.4 order was
made by the Threat Assessment Team on September 30, 2011 chaired by Chief Hodges. Of
the eight members of the team, two were aware of Liu's grievance filing: 	Chief Hodges and
Dobb. Chief Hodges was aware in that he assigned police to provide security at an informal
grievance meeting on May 9, 2011, and through the oblique references in Chief Hodges police
contact log about Liu submitting a grievance on January 4, 2011. Dobb, as the Associate Vice
Provost, was aware of Liu's grievance filing as the Provost's Office was the location where
Liu filed his grievances and Dobb assisted in processing such grievances. It is found that both
Chief Hodges and Dobb had knowledge of Liu' s grievance filing prior to the issuance of the
Penal Code section 626.4 order.
2) 	Unlawful Motive
Unlawful motivation is an essential element of a charging party's case. In the
absence of direct evidence an inference of unlawful motivation may be drawn from the record
as a whole, as supported by circumstantial evidence. (Carlsbad Unified School District (1979)
PERB Decision No. 89.) Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct is an important factor
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it
does not, without more, demonstrate the necessary connection or "nexus" between the adverse
action and the protected conduct. (Moreland Elementary School District ( 1982) PERB
Decision No. 227.) Facts establishing one or more of the following additional factors must
also be present: 	(1) the employer's disparate treatment of the employee (State of California
(Department of Transportation) (1984) PERB Decision No. 459-S); (2) the employer's•
departure from established procedures and standards when dealing with the employee
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(Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the employer's
inconsistent or contradictory justifications for its actions (State of California (Department of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory
investigation of the employee's misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland,
supra, PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous reasons
(McFarland, supra, PERB Decision No. 786); (6) employer animosity towards union activists
(Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210.)
The most recent event related to Liu's grievance filing which Chief Hodges was aware
was on May 9, 2011, when he provided police coverage for an informal grievance meeting.
Dobb's would have been aware of the multiple grievances filed by Liu between June 9 and 30,
2011 (Grievances Fifteen through Twenty) and the processing of Liu's grievances. The
proximity of these grievances and grievance meeting is sufficiently close in time to establish a
temporal proximity between the protected activity and the Penal Code section 626.4 order.
Temporal proximity between an employee's protected activities and an employer's adverse
actions is probative, but not determinative, circumstantial evidence of a causal connection
between the two events. (County of Riverside, supra, PERB Decision No. 2090-M.)
Other than timing, Liu claims that the reasons that the Threat Assessment Team
recommended the Penal Code section 626.4 order were exaggerated as he guaranteed his
friendliness and commitment toward a peaceful means in fighting corruption in the
September 30, 2011 email. However, the Threat Assessment Team had every reason not to be
63

assuaged by the guarantee, especially since Liu had used such physically-charged language
before and been warned of its impact. He also copied each of the Human Resources staff of
his comment that they would be killed first. In light of CSUEB's zero tolerance policy
regarding threatening behavior, the team's concern cannot be deemed to be exaggerated.
Liu failed to demonstrate that the team's recommendation was unlawfully motivated by
his protected activities. As Liu has failed to demonstrate the actual decisionmakers'
knowledge of his protected activity or subordinate bias liability, Liu has failed to demonstrate
a prima facie case of retaliation by issuing the Penal Code section 626.4 order and that
allegation is dismissed.
CSUEB's Burden
Once the charging party establishes a prima facie case of retaliation, the burden shifts to
the employer to show it would have imposed the adverse action even if the employee had not
engaged in protected activity. (Novato, supra, PERB Decision No. 210; Martori Brothers
Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line
(1980) 251 NLRB 1083.) Thus, "the question becomes whether the [adverse action] would not
have occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is "an
affirmative defense which the employer must establish by a preponderance of the evidence."
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
In retaliation cases, PERB does not determine whether the employer had cause to
discipline the employee. (San Bernardino City Unified School District (2004) PERB Decision
No. 1602.) Rather, PERB must determine whether the employer took adverse action for an
unlawful reason set forth in one of its labor relations statutes. (McFarland Unified School
Dist. v. Public Employment Relations Bd. (1991) 228 Cal.App.3d 166, 169.)
Although, it has been found that Liu failed to demonstrate a prima facie case of
retaliation, even ifhe did satisfy his burden, CSUEB has amply demonstrated evidence that it
64

would have denied Liu tenure/promotion and issue the Penal Code section 626.4 order, but for
Liu' s protected activity.
There was disagreement48 as to whether tenure should be granted among the various
faculty committees, the Department Chair, the College Dean and the University President. The
only committee that recommended Liu be granted tenure was the University Faculty
Committee. Even that committee expressed reservations in regards to some of the student
comments, Liu' s submitting the same articles for publications over a number of years and the
limited university and community service. Additionally, the University Faculty Committee did
not find any bias in the prior recommendations. It is clear that there was room for a difference
of opinion, and the President's decision was also based upon some of the same findings made
by prior level recommendations which were untainted by Liu's protected activity. The
President did not have a history of following recommendations of subordinate managers. It is
found that President Qayoumi would have made the same decision, but for any protected
activity exercised by Liu.
The impetus for the Threat Assessment Team being convened was Liu's own
September 30, 2011 email. Although Chief Hodges also considered Liu to be insubordinate to
Dobb's July 15, 2011 directive and disruptive by handing out flyers outside Frankel's
classroom, the team would have never been convened without the September 30, ,2011 email.
The team recommended that immediate action be taken. No evidence was presented that the
eight-member team mentioned that its decision was motivated by his protected activities, but
rather based upon the email and the belief that Liu was intentionally attempting to intimidate
48 It should be noted that all faculty committees, the Department Chair, the College
Dean and the University President agreed that Liu should be denied a promotion to Associate
Professor. CSUEB easily satisfies its burden that the decision to deny promotion was not
based upon an unlawful motive.
65

Human Resources staff by referencing "killing" them. This is also what Chief Hodges
discussed with Don Sawyer who discussed it with President Morishita.
The content of Liu' s September 30, 2011 email alone justifies the issuance of the Penal
Code section 626.4 order. The email is copied to the very Human Resources staff which Liu
states should die first. If Liu wanted to make a point about discourtesy, he need not have
copied them. While Liu attempts to ameliorate his comments by guaranteeing his friendliness
and peaceful intentions, such comments still cause great disruption to the workplace.
Additionally, Liu made inflammatory comments in the past and had been warned of their
effect, yet still continued to speak or write them. These facts coupled with the express
provisions ofCSUEB's zero tolerance policy regarding Workplace Safety and Security Policy
and threatening an employee with harm easily demonstrates that Liu "willfully disrupted the
orderly operation of such campus" (Penal Code section 626.4) to justify such an order.
Post Deferral to Arbitration Repugnancy Review
PERB Regulation 32620(b)(6) requires the Board agent to:
Place the charge in 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.
(Emphasis added.)
In determining repugnancy claims, PERB utilizes the standards set forth in Dry Creek
Joint Elementary School District (1980) PERB Order No. Ad-81 a, 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. (Santa Ana Unified
School District (2008) PERB Decision No. 1951.) Under this standard, the Board will exercise
66

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."
(Santa Ana, at p. 6.)
In Olin Corp. (1984) 268 NLRB 573, 574, 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 of review
should be weighed by the [NLRB] 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.
(Emphasis added; fns. omitted.)
The NLRB further stated that it:
would require that the party seeking to have the [NLRB] 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 [NLRB] ignore the determination of an
arbitrator has the burden of affirmatively demonstrating the
defects in the arbitral process or award.
(Emphasis added; fn. omitted.)
Unfair Practice Issues Were Presented and Considered By the Arbitrator
The disciplinary arbitration of the suspension and termination was going to include,
among other affirmative defenses, that the disciplinary actions were taken because of Liu's
grievance filing. 	In this matter, the contractual issue was parallel with that before PERB.
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During Liu's opening statement at the arbitration, Arbitrator Harris acknowledged the
potential relevance of filing grievances prior to the disciplinary actions and stated that she
thought she understood his case of alleged retaliation. Arbitrator Harris then held hearings on
August 21, 22, 23 and 24, and September 17 and 18, 2012. Additional days of hearing had
been set for November 27 and 28 and December 10 and 11, 2012. Before CSUEB finished its
case-in-chief, Liu left three binders of documents including his 43 grievances and his rebuttal
to the disciplinary actions and left the hearing room as the arbitrator would not let him put on
his case that day.
When Arbitrator Harris issued her award on November 15, 2012, she dismissed Liu's
disciplinary appeals and specifically declined to resolve the "just cause" issue as she did not
have a complete record and a fair hearing process which allowed both sides the "full and fair
opportunity to present its evidence and arguments." As such, the suspension and termination
retaliation issues were never fully adjudicated.
A policy question therefore arises as to whether Liu should be able to avoid the deferral
order by walking out of a hearing for which he was unhappy in how it was proceeding and, as a
result, the deferral issue was not "fully presented." To allow Liu to escape the deferral order
by his obstructionist and contumacious conduct would be to put the control of the enforcement
of the deferral order in his hands rather thanthe ALJ issuing the order. While Liu was not
· happy with the speed of the arbitration proceedings, he greatly contributed to its delay.
Additionally, the two disciplinary actions involved multiple charges and witnesses. The
arbitration record supports the assertion that the arbitrator was willing to hear his protected
activity defense and rule on it. In light of the unusual circumstances surrounding the
conclusion of these proceedings, and the arbitrator's willingness to hear his defense, the
element that the arbitrator was presented generally with the facts relevant to resolving the
unfair labor practice has been met.
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Arbitral Proceedings were Fair and Regular
Liu objected that the arbitral proceedings were not fair and regular in that it was unduly
time consuming. Again, each of the disciplinary actions included multiple charges and
witnesses involved. The arbitrator was attempting to provide a full and equal opportunity for
the parties to present evidence, but Liu interfered with her ability to do so. Any irregularity of
· the proceeding was caused by Liu.
Liu raises two additional defects in the arbitral process which, he contends, mandates
that he be allowed to proceed before PERB on his retaliation allegations of the two disciplinary
actions.
1. 	Selection/Appointment of Arbitrator Harris
Liu alleges that he was never allowed to participate in the CBA procedure in selecting
an arbitrator. He is incorrect, he was allowed to do so, but did not do so in a timely manner.
CBA section 19 .14 provides that the parties shall alternately strike names from a AAA
list until they arrived at an arbitrator. The section does include a timeline in which this duty is
to be accomplished. CBA section 19.20 provides that the AAA Voluntary Labor Arbitration
Rules will apply unless the CBA specifically states otherwise. AAA Voluntary Labor
Arbitration Rule 13 provides the time frame in which the parties are to select an arbitrator as
ten days after AAA notified them to make an arbitrator appointment.
On November 29, 2011, AAA sent a list of arbitrators to Liu and CSUEB and they were
to alternatively strike arbitrators by December 9, 2011. Liu insisted that Gunn and he strike
names face-to-face and Gunn wanted to strike arbitrators by teleconference call. Liu told Gunn
he would write AAA about it. A selection was not made by December 9, 2011.
On December 22, 2011, AAA sent another letter warning Liu and Gunn that if they had
not engaged in the strike procedure in ten days, that AAA would appoint an arbitrator. AAA
later extended the deadline to January 3, 2012. Gunn provided a five-hour window in which
69

she was available on January 3, 2012, for a telephonic conference. Liu stated he was booked,
but that he wanted to meet on campus on January 9 and 16, 2012, and that the selection must
occur on campus. On January 13, 2012, AAA notified the parties that it would be appointing
an arbitrator as they had not met the deadline and on January 26, 2012, appointed Arbitrator
Harris.
On March 5, 2012, Liu agreed he would engage in a teleconference call to strike
arbitrators. Gunn replied she would agree if it was done by March 13, 14 or 15, 2012. Gunn
tried to contact Liu by email for the teleconference, but was unsuccessful. Liu never contacted
Gunn. Finally, on March 15, 2012, Liu emailed AAA stating he was out of town and could not
strike arbitrators until early April. CSUEB refused.
The CBA or AAA Voluntary Labor Arbitration Rules does not give a party the right to
strike arbitrators in a face-to-face meeting.49 Liu was given an opportunity on multiple
occasions to participate in the selection of an arbitrator, but refused to do so unless his terms
were met. Finally, in March 2012, Liu was given another opportunity and failed to meet the
deadline again. When he failed to engage in the teleconference call to strike arbitrators and
meet the deadline, he waived his right to ·participate in the selection.
2. 	Timing of the Issuance of the Award
Liu contends that the arbitrator's November 15, 2012 award has no jurisdiction over
him as it was issued more than ten days after his October 16, 2012 opposition to CSUEB's
motion to dismiss and his request for ruling on his behalf. Again, Liu is incorrect.
CBA section 19 .18 provides that the arbitrator shall issue a written award stating the
decision on the issues submitted ten days after the hearing has "concluded." AAA Voluntary
Labor Arbitration Rule 31 provides that a hearing is not declared "closed" until the arbitrator
49 Based upon Liu's affinity for email as a mode of communication, it is hard to believe
that he would not just agree to strike arbitrators by email which would avoid any
communication difficulties.
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has been informed that the parties do not have any further proof to offer or witnesses to be
heard, or the arbitrator is satisfied that the record is complete. On September 18, 2011, when
Liu walked out of the hearing, the record was not complete and CSUEB had further
witnesses/evidence to offer. Additionally, the hearing dates of November 27 and 28 and
December 10 and 11, 2011, had not been vacated.
A motion to dismiss was filed by CSUEB on October 2, 2011, and Liu filed his
responsive opposition/motion on October 16, 2011. At that point, nothing had been
determined to be concluded. The arbitrator could dismiss the appeal or could allow CSUEB to
continue. As the hearing had not been concluded, the arbitrator was not bound by the ten-day
deadline in CBA section 19.18. The arbitrator's ruling on the motion or award was issued
within 30 days ofLiu's responsive pleading. As the CBA does not dictate a time deadline for
the issuance of awards based upon motions, the issuance of the arbitrator's award was timely.
The Parties Agreed to Be Bound by Arbitration
Liu specifically requested that his disciplinary actions be arbitrated. He could have
selected a hearing before SPB or a Faculty Hearing Committee. His opening statements
specifically included the affirmative defenses that he was disciplined because of his grievance
filing and whistleblower activities. He never stated hewithdrew from the arbitration. This
element is therefore satisfied.
Repugnancy of A ward
Liu contends that the arbitrator could not dismiss his appeals, but could only order the
hearing to continue in his absence. Again, Liu narrowly interprets a rule which does not fit his
conduct during the arbitration hearing.
AAA Voluntary Labor Arbitration Rule 27 sets forth a provision which allows an
arbitration to proceed in the absence of a party if a party fails to appear at an arbitration after it
has been noticed and require the other party to proceed as required for the issuing of an award.
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Liu's conduct went beyond a simple failure to appear at the arbitration. Arbitrator Harris
chronicled a continuum of arbitral interference and misconduct which culminated in his
issuance of an ultimatum to the arbitrator: let me put on my case or I leave. While the
arbitrator could have elected to proceed in Liu's absence, she was also not palpably wrong by
dismissing the appeals pursuant to AAA Voluntary Labor Arbitration Rules 19 and 26.
As Liu did not satisfy his burden that the arbitration proceedings and award were
deemed repugnant according to the purposes of HEERA, the retaliation allegations in the
complaint related to the suspension and termination are deferred to the award and dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-995-H
Wenjiu "Jerry" Liu v. Trustees of the California State University (East Bay), are hereby
DISMISSED.
,
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
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A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Cod,e Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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