Coalition of Unviersity Employees (Buxton) (PERB 1517H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHARON BUXTON,
Charging Party,
V .
COALITION OF UNIVERSITY EMPLOYEES,
Respondent.
Case No. LA-CO-91-H
PERB Decision No. 1517-H
April 7, 2003
Appearances: Sharon Buxton, on her own behalf; Leonard, Carder, Nathan, Zuckerman, Ross,
Chin & Remar by Arthur Krantz, Attorney, for Coalition of University Employees.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Sharon Buxton (Buxton) of a Board agent's dismissal of her
unfair practice charge. The charge alleged that the Coalition of University Employees (CUE)
violated the Higher Education Employer-Employee Relations Act (HEERA)' by failing to
adequately represent her in a grievance against the Regents of the University of California
(University) and failing to inform her of the results of that grievance in a timely fashion.
Buxton alleged that this conduct constituted a violation of HEERA sections 3571.1(e) and
3578.
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

After review of the entire record in this matter, including the Board agent's dismissal,
Buxton's appeal and CUE's response to Buxton's appeal, the Board affirms the Board agent's
decision consistent with the following discussion.
BACKGROUND
Buxton had been employed with the University of California San Diego Medical Center
since January, 1991, had worked as an administrative assistant, and was exclusively
represented by CUE. On July 14, 1999, the University sent Buxton notice of her layoff, which
was effective August 31, 1999. At that time CUE had not yet negotiated a collective
bargaining agreement (CBA) with the University and the parties were following the terms of
an expired agreement between the University and CUE's predecessor. On August 9, 1999,
CUE filed a grievance on Buxton's behalf. The dispute centered on whether the University had
used the appropriate layoff units in laying off Buxton.
On August 31, 1999, CUE appealed Buxton's grievance to Step 2. On November 1,
1999, CUE sent a letter to Labor Relations Advocate, Belinda M. Hein, indicating its desire to
proceed with Buxton's grievance to Step 3.
On April 15, 2000, Buxton requested information from the University regarding her
grievance. Buxton wrote the request for information herself after calling CUE Representative
Judie Murray (Murray), who had indicated that she could not make sense out of Buxton's file.
Murray later informed Buxton that her request for information had been forwarded to the
University. Murray told Buxton that she would communicate with her when she heard from
the University and that Murray did not want Buxton contacting her because she did not want to
"The University had an agreement with CUE's predecessor, the American Federation of
State, County and Municipal Employees (AFSCME), dated November 1, 1994 to June 30,
1997.
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be interrupted unnecessarily. Buxton alleges that Murray had promised to contact her if
Murray received a response from the University. Buxton further claims that Murray falsely
indicated that the University was not required to respond to Buxton's Step 3 information
request. Buxton believes that Murray was worried about upsetting the University's labor
relations staff and deliberately sabotaged Buxton's grievance in order to protect herself by
blocking Buxton's access to appropriate University staff and failing to aggressively challenge
the information provided by the University. In summary, Buxton alleges that CUE failed to
challenge the information provided by the University and failed to enforce the bargaining unit
members' rights under the contract and under HEERA.
Sometime in March or April 2001, Buxton called CUE regarding a matter unrelated to
her grievance and learned that her grievance had been denied. On April 17, 2001, Buxton
received from CUE a copy of the University's denial of her grievance, dated June 6, 2000.
From the University's June 6 letter, Buxton learned that the University communicated with
Murray regarding Buxton's grievance on April 26, 2000, but Murray neither replied to the
University's	University nor informed Buxton of the communication. The University's June 6 letter
indicated that the grievance could not be taken to arbitration as the CBA with AFSCME had
long expired and CUE had not yet negotiated a new CBA with an arbitration clause. Although
Buxton alleges that April 17, 2001 was the first time she obtained the University's
correspondence denying her grievance, CUE counters that the University sent Buxton a copy
of the June 6, 2000 letter when it was initially issued.' Buxton however asserts that April 17,
The Board agent included in the warning letter a statement from CUE that the
University had provided Buxton with a response to her grievance when it was initially issued.
This statement is not in the record and therefore, the Board should delete this finding from the
decision. (Golden Plains Unified School District (2002) PERB Decision No. 1489.) In any
case, the Board agent did not use this statement as a basis for the dismissal.
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2001 was the first time that she had seen the June 6 letter and that she had not previously
received a copy when it was initially issued in June 2000.
On January 12, 2000, Buxton filed an unfair practice charge alleging the University
violated the HEERA by unilaterally changing the layoff procedures." After learning that an
individual employee does not have standing to file such a charge, Buxton requested that CUE
file a charge, but CUE refused.
Buxton alleges that all CUE representatives are employed by the University and
therefore have a conflict of interest in providing representation to unit employees.
Buxton filed her charge on October 15, 2001 and an amendment to the charge on
March 15, 2001.
The Board agent's dismissal held that Buxton's charge was in part untimely and
otherwise failed to state a prima facie case. With regard to the finding of timeliness, the Board
agent explained that Buxton filed the charge on October 15, 2001 and under HEERA section
3563.2(a), PERB may not issue a complaint for events occurring before April 15, 2001. The
Board agent found that Buxton was aware that CUE had required her to write her own
information request in April 2000 and that Buxton had learned in April 2000 that Murray	Murray5did
not want Buxton to contact her. Buxton was also aware that CUE refused to file an unfair
practice charge on her behalf at some unknown date, presumably sometime around late
January 2000, when PERB dismissed Buxton's charge against the University. These events
thus fell outside of PERB's jurisdiction.
Unfair practice Case No. LA-CE-564-H, dismissed January 28, 2000.
The Board agent mistakenly identified Robin Luczak, not Judie Murray, as the CUE
representative handling Buxton's grievance during this time.

The Board agent found that for events occurring on or after April 15, 2001, Buxton
failed to state a prima facie case for duty of fair representation. Citing Fremont Unified School
District Teachers Association, CTA/NEA (King) (1980) PERB Decision No. 125 (Fremont
USDTA), United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258 (UTLA
(Collins)), and Reed District Teachers Association, CTA/NEA (Reyes) ( 1983) PERB Decision
No. 332, the Board agent determined that CUE's conduct was not arbitrary, discriminatory or
in bad faith. The amended charge merely repeats allegations in the original charge. Although
not exemplary in processing Buxton's grievance, CUE pursued the grievance through all
available steps despite the failure to inform Buxton of its status.
In addition, CUE's duty to fairly represent Buxton does not extend to filing unfair
practice charges. (California State Employees Association (Bradford) (2001) PERB Decision
No. 1421-S.) Therefore, the Board agent dismissed Buxton's claim regarding CUE's failure to
file a charge on Buxton's behalf against the University alleging that the University unilaterally
changed layoff units.
DISCUSSION
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The charging party bears the burden of
demonstrating that the charge is timely filed. (Tehachapi Unified School District (1993) PERB
Decision No. 1024; State of California (Department of Insurance) (1997) PERB Decision
No. 1197-S.)
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Buxton filed her unfair practice charge on October 15, 2001. Consequently, the Board
may only issue a complaint for events occurring on or after April 15, 2001. The six-month
statutory limitations period begins to run when the charging party knew or should have known
of the conduct giving rise to the alleged unfair practice. (State of California (Department of
Food and Agriculture) (1998) PERB Decision No. 1290-S, citing The Regents of the
University of California (1983) PERB Decision No. 359-H; p. 2, warning letter.) Buxton
alleged that in April 2000, she called Judie Murray regarding the status of her Step 3
information request to the District. Murray informed her that her request had been forwarded
to the University, that Murray would contact her when she received a response from the
University, but that Buxton should not contact Murray because Murray did not want Buxton
interrupting her unnecessarily. Buxton never heard from Murray. In March or April 2001,
Buxton contacted Robin Luczak when she noticed a change in the CBA on CUE's website. On
April 17, 2001, for the first time, according to Buxton, she received the University's denial of
her grievance from CUE. CUE argues that Buxton should have used due diligence to contact
CUE during that time, but given Murray's directive that Buxton not contact her, it may have
been a futile exercise. That, as Buxton alleges, the University's response to her grievance and
the information gleaned from that response were previously unknown to her, the Board
concludes that Buxton's claim regarding CUE's failure to provide this information was timely.
The key issue becomes whether Buxton has met the standard for showing that CUE
breached its duty of fair representation. She has alleged that the exclusive representative
denied her the right to fair representation guaranteed by HEERA section 3578 and thereby
violated section 3571.1(b). The duty of fair representation imposed on the exclusive
representative extends to grievance handling. (Fremont USDTA; UTLA (Collins).) In order to
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state a prima facie violation of this section of HEERA, Buxton must show that CUE's conduct
(Collins).was arbitrary, discriminatory or in bad faith. In UTLA (Collins), the Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. [Citations.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.
We find that CUE incompetently handled Buxton's grievance but its conduct and the
resulting consequences to Buxton do not meet the standard for arbitrariness under established
state and federal precedent. In order to state a prima facie case of arbitrary conduct violating
the duty of fair representation, a charging party:
. . . must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rationale [sic] basis or devoid of honest judgment.
(Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124; emphasis added.)
The Board has found failure by a union representative to carry through on a promise to
constitute breach of the duty of fair representation arising out of the union's arbitrary conduct.
(San Francisco Classroom Teachers Association, CTA/NEA (Bramell) (1984) PERB Decision
No. 430.) Upon receipt of a denial of his level one grievance, Bramell asked the union to
process his grievance to the second level. He called the union to determine the status of his
grievance and was told that the union had not yet appealed the grievance to the second level.
he union representative apologized, and because the deadline for appeal was imminent,	T
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promised to request an extension of time from the employer. Despite the promise, the union
failed to request the extension and later wrote Bramell a letter stating that it would not pursue
his grievance further because it lacked merit. When the employer replaced Bramell, the union
protested in writing about the method of filling the vacancy but did not request Bramell's
reinstatement. The Board found, at page 9 of the decision, that the union's actions
cumulatively presented a pattern demonstrating an arbitrary failure to represent Bramell fairly
in his employment relationship with the employer. (See also, American Federation of State.
County and Municipal Employees. International, Council 57 (Dehler) (1996) PERB Decision
No. 1152-H.)
Federal precedent further elucidates the standard for a union's arbitrary failure to fairly
represent an employee." The Ninth Circuit Court of Appeals in Dutrisac v. Caterpillar Tractor
Co. (9th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532] (Dutrisac) provided the most
comprehensive description of the term "arbitrary." At page 1272, the court stated:
A union acts arbitrarily if it 'ignore[s] a meritorious grievance or
process[ es] it in a perfunctory fashion.' (Citation.) Although
arbitrary conduct is not limited to acts intended to harm the
employee, Robesky v. Qantas Empire Airways, Ltd. 573 F.2d
1082, 1089 (9" Cir. 1978), the standards for determining when an
unintentional mistake by a union official should be considered
arbitrary' are still evolving. (Citation.)
In Robesky, we stated that an unintentional mistake is arbitrary if
it reflects a 'reckless disregard' for the rights of the individual
employee, but not if it reflects only 'simple negligence violating
the tort standard of due care.' 573 F.2d at 1089-90; accord,
HEERA expressly provides for a duty of fair representation in Section 3578 and makes
the breach of that duty an unfair practice under Section 3571.1(e). Although the National
Labor Relations Act (NLRA) and Railway Labor Act do not expressly provide for the duty of
fair representation, the courts have interpreted the Act to imply such a duty, long utilizing the
same standard described in Section 3578. (Vaca v. Sipes (1967) 386 U.S. 171, 190 [64 LRRM
2369].) Thus, federal decisions interpreting the NLRA in this area may guide the Board's
analysis. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3d 608 [116 Cal.Rptr. 507].)
8

Tenorio v. NLRB 680 F.2d 598, 601 (9" Cir. 1982). 'Reckless
disregard' and 'simple negligence,' however, are merely labels.
In deciding whether the facts of a particular case constitute a
breach of the duty, it is more instructive to compare the types of
unintentional errors in union grievance processing that usually are
held to breach the duty of fair representation with those usually
held not to breach the duty.
Most of the decisions finding 'simple negligence' insufficient to
establish a breach of the duty involve alleged errors in the union's
evaluation of the merits of a grievance (citation), in its
interpretation of the collective bargaining agreement (citations),
or in its decisions concerning presentation of the grievance at the
arbitration hearing (citations). When the challenged conduct is
not an erroneous decision by the union but its failure to perform a
ministerial act required to carry out the decision, courts have been
more willing to impose liability for merely negligent conduct.
(Citations.) [Emphasis added.]
The cases in which the courts have found a breach of the duty for mere negligence have
involved the union's failure to perform a ministerial act that foreclosed any forum or remedy
for the employee. For example, in Robesky v. Quantas Empire Airways Limited (9th Cir.
(Robesky),	1978) 573 F.2d 1082 [98 LRRM 2090] (Robesky), the employee was fired. The union filed a
grievance on her behalf which was denied at all preliminary levels by management. Robesky
requested that the union take the grievance to arbitration but without informing her, the union
did not do so. Instead, it negotiated a settlement with the employer, which included reinstating
Robesky without backpay. Robesky, thinking that her grievance was proceeding to arbitration,
refused the settlement, and thus lost her job. The court found two possible theories for breach
of the duty: either (1) the union deliberately failed to tell Robesky of its decision not to take
her grievance to arbitration and the union's decision was therefore without rational basis; or (2)
if unintentional, the union's negligent failure to disclose its strategy was egregious. With
regard to the second standard, the court stated,
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Acts of omission by union officials not intended to harm
members may be so egregious, so far short of minimum standards
of fairness to the employee and so unrelated to legitimate union
interests as to be arbitrary. (Citations.) [Robesky, at p. 1090.]
The court further opined that:
. . it is clear that unintentional acts or omissions by union
officials may be arbitrary if they reflect reckless disregard for the
rights of the individual employee, (citations); they severely
prejudice the injured employee, (citation); and the policies
underlying the duty of fair representation would not be served by
shielding the union from liability in the circumstances of the
particular case, (citation). [Emphasis added.]
In Dutrisac, the employee was discharged and the union filed a grievance on his behalf.
After the employer rejected the grievance at the preliminary levels, the union decided to submit
the grievance to arbitration. The union representative believed he was filing the grievance
within the time limits but actually filed the request two weeks late and the arbitrator dismissed
the grievance as untimely. The court held that Dutrisac stated a claim for breach of the duty of
fair representation based upon the union representative's negligence but limited its holding to
"union negligence . . . [in] cases in which the individual interest at stake is strong and the
union's failure to perform a ministerial act completely extinguishes the employee's right to
pursue his claim." (Dutrisac, at p. 1274; emphasis added.)
The matter before us presents a pattern of alleged intentional and failed communication
between the exclusive representative and the employee. Sometime in or around April 2000,
after asking CUE representative Murray to file the request, according to Buxton, Murray
stated, "I do not work for you. I suggest you pick up your file and see if you can make sense
out of it." Buxton stated that she wrote the request and hand-delivered it to Murray, who told
Buxton that the correspondence had to go through her (Murray). Buxton alleges that Murray
misinformed her that the University did not need to respond to her Step 3 grievance
10

information request. Per Buxton, Murray later called her and told her that she had forwarded
the request with a cover letter to the University, and that Murray would notify Buxton if and
when she received a response. Buxton says that Murray reminded her that the University did
not need to respond to the request. According to Buxton, Murray also told Buxton not to
contact Murray because she did not want her work interrupted unnecessarily and that the
University only allowed her limited time to work on union business. At a different time,
Buxton stated that Murray told her that Buxton's filing an unfair practice charge made the
University labor relations staff mad at her and that Murray did not want to get on the wrong
side of these people. According to the June 6, 2000, Step 3 grievance response from the
University, the University had requested on April 26, 2000, clarification of the information
requested by CUE and did not obtain a response. As a result, the University issued the denial
of Buxton's grievance without receiving any clarification. Finally, Buxton alleges that she did
not learn of the University's denial of her grievance until she contacted the union about another
matter in April 2001 and then saw the response for the first time when she received it in the
mail from CUE on April 17, 2001.
Although CUE did make efforts to process the grievance, it failed to inform Buxton of
its progress, to respond to the University's request for clarification, or to notify Buxton of the
University's ultimate response. CUE's failure to communicate with Buxton coupled with
Murray's instruction that Buxton not contact her approaches the standard for arbitrariness.
On the other hand, Buxton acknowledges that CUE pursued Buxton's grievance
through Step 3 of the process and attachments to Buxton's charge show that CUE made
information requests on Buxton's behalf throughout the grievance process. Buxton also
acknowledges CUE's understanding that it was unable to proceed to arbitration. That
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understanding is based upon the fact that arbitration was not available under an expired CBA,
as also noted in the University's June 2000 Step 3 response.
Board precedent corroborates this view. (See Coachella Valley Federation of Teachers.
CFT/AFT (Kok) (1998) PERB Decision No. 1302; relying upon State of California,
Department of Youth Authority (1992) PERB Decision No. 962-S (Youth Authority).) In
Youth Authority, the Board cited the U.S. Supreme Court's decision in Litton Financial
Printing Div. v. NLRB (1991) 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed. 2d 177 [137 LRRM
2441] (Litton) (limiting the holding in Nolde Bros., Inc. v. Bakery Workers (1977) 430 U.S.
243 [94 LRRM 2753] (Nolde Bros.)) for the principle that arbitration clauses do not survive an
expired CBA, except for disputes involving events that occurred before expiration, or that
involved post-expiration conduct that infringes on rights accrued or vested under the
agreement. The Board, in Youth Authority, stated that this is an apparent exception to the
doctrine in NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177], which prohibits unilateral
changes to terms and conditions of employment where an existing agreement has expired and
the parties have not completed negotiations on a new agreement. In Litton, the court stated
that: "[the object of an arbitration clause is to implement a contract, not to transcend it. . . .
[so that] postexpiration grievances concerning terms and conditions of employment [may not]
remain arbitrable." Thus, the court concluded that:
A postexpiration grievance can be said to arise under the contract
only where it involves facts and occurrences that arose before
expiration, where an action taken after expiration infringes a right
that accrued or vested under the agreement, or where, under
normal principles of contract interpretation, the disputed
contractual right survives expiration of the remainder of the
agreement. [Litton, at p. 206.]
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The determination becomes a matter of contract interpretation. (Id., at pp. 207-208.)
In Litton, similar to this case, the court evaluated the arbitration and layoff provisions of an
expired collective bargaining agreement during a campaign by a unit employee to decertify the
union. No contract negotiations occurred while the union's status was uncertain. The National
Labor Relations Board ultimately certified the union and within two months Litton laid off
several unit employees. The court held that the agreement's unlimited arbitration clause "by
which the parties agreed to arbitrate all '[djifferences that may arise between the parties'
regarding the Agreement, violations thereof, or 'the construction to be placed on any clause or
clauses of the Agreement"" is subject to postcontract arbitration. (Id., at p. 205.) However, the
court found that the layoff provision could not be said to create a right that vested or accrued
during the term of the agreement or a contractual obligation that extended beyond expiration.
(Id., at p. 210.) The layoff provision stated that "in case of layoffs, lengths of continuous
service will be the determining factor if other things such as aptitude and ability are equal."
(Id., at p. 209.) In a 5 to 4 decision, the majority of the court held that this provision involved
a "residual element of seniority." (Id.) The court explained that aptitude and ability are factors
that change over time and that the order of layoffs was to be determined primarily with
reference to those factors. (Id.) Therefore, the court found that the layoff provision was not
subject to postexpiration arbitration. (Id.) This is distinguished from the severance payments
provision in Nolde Bros., which was deemed by the same court to be a form of accrued
deferred compensation and thus arbitrable after expiration of the CBA. (Id.)
If the parties wish to agree that CBA provisions be arbitrable postexpiration, the Litton
court suggested that "the parties can consent to that arrangement by explicit
agreement. . . . [or] a collective-bargaining agreement might be drafted so as to eliminate any
hiatus between expiration of the old and execution of the new agreement." (Litton, at p. 201.)
13

Under the Litton test, the Board must look at the applicable provisions of the CBA in
the instant matter to determine whether the layoff provisions are arbitrable. Article 7 -
Arbitration Procedure of the parties' expired CBA states, in pertinent part:
A. Grievances which have not been settled under the procedures
provided in Article 6 - Grievance Procedure, may be appealed to
arbitration. O	[9l nly the Union shall have the right to submit a
grievance to arbitration and only after the timely exhaustion of
the procedures of Article 6 - Grievance Procedure. . . .
Grievances which are not processed within the above time limit,
and/or which do not contain the appropriate Union signature, will
be considered ineligible for appeal to arbitration. If an
unresolved grievance is not appealed to arbitration or heard in
arbitration, the last preceding University written answer shall
become final.
Article 13 - Layoff and Reduction in Time of the expired CBA provides, in pertinent
part:
B. 3. An indefinite layoff is a layoff for which no date for recall
to work is specified.
C. SELECTION FOR LAYOFF
1. If, in the judgment of the University, budgetary or operational
considerations make it necessary to curtail operations, reorganize,
reduce the hours of the workforce and/or reduce the workforce,
staffing levels will be reduced in accordance with this Article.
The selection of employees for layoff shall be at the sole
discretion of the University.
Although the complete copy of the CBA was not submitted into the record, the Board
may take official notice of the CBA contained in the Board's files pursuant to PERB
Regulation 32120 and 32320(a)(2). (PERB regs. are codified at Cal. Code Regs., tit. 8, sec.
31001 et seq.)
"Article 6 - Grievance Procedure defines grievance as "a written complaint by an
individual employee, a group of employees or the Union involving an alleged violation of a
specific provision of " the CBA during the term of the CBA. Unless otherwise provided in the
CBA, individual employees, groups of employees, or the union may utilize the grievance
procedure. The grievance procedure specifies time limits for submitting the grievance and for
the University's response at each step of the process.
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2. The University shall review and, at its sole non-grievable
discretion, determine when some, any or all casual employees
will be released prior to laying off career employees.
D. 2. e. With regard to indefinite layoff only, the order of
indefinite layoff of employees in the same class within a
department/division shall be in inverse order of seniority except
that the University may retain, at its discretion, employees
irrespective of seniority who possess special skills, knowledge, or
abilities which are not possessed to the same degree by other
employees in the same class and which are necessary to perform
the ongoing function of the department/division. To the extent
permitted by law, the University may also consider workforce
diversity when making layoff decisions and implementing layoff
actions. All such exceptions and the decision to make such
exceptions shall not be subject to Article 7 - Arbitration
Procedure of this Agreement.
(Emphasis added.)
Article 39, Duration of Agreement, states in pertinent part:
A. The terms and conditions of this Agreement shall remain in
full force and effect commencing on November 1, 1994, and shall
terminate at 11:59 p.m. on June 30, 1998.
C. 5. During the period of negotiations on Articles properly
designated for amendments the terms and conditions of this
Agreement, including those Articles already designated for
amendment, shall remain in full force and effect.
Looking at Article 7.A. and Article 39. C.5 of the expired CBA, it appears that the
arbitration provisions were intended to apply to post-expiration grievances during negotiations
for a successor agreement. However, the layoff provisions in Article 13 appear to grant the
University discretion to select which employees to lay off, to retain employees of lessor
seniority who retain special skills, knowledge or abilities necessary for the ongoing function of
"Under Article 34 of the expired CBA, "career positions" are positions established at
50 percent or more of full-time and are expected to continue for at least one year. A "casual
position" is a position established for less than one year, or for less than 50 percent of full-time
regardless of the duration of the position. Under the CBA, employees in career positions
appear to have somewhat more job security than employees in casual positions.
15

a particular department or division, and to consider workforce diversity in making layoff
decisions. The University also has discretion to retain casual employees over career
employees. This discretion is non-arbitrable. These provisions are similar to those in Litton,
which the court found not to "create a right that vested or accrued during the term of the
Agreement or a contractual obligation that extended beyond expiration" because these are
factors that may change over time. In addition, the non-arbitrability of these provisions is
supported by the express exemptions in Article 13 of the CBA, even during its term.
As CUE and Buxton could not pursue Buxton's grievance beyond Step 3 to arbitration,
CUE's understanding that the arbitration procedure is not an available remedy to challenge the
order of Buxton's layoff is reasonable and not evidence of breach of the duty of fair
representation. The fact that CUE's conduct did not extinguish Buxton's ability to pursue
remedies within CUE's control precludes, in this matter, a claim for breach of the duty of fair
representation.
Buxton also alleges that she made various demands upon CUE regarding how she
wanted Murray to argue and otherwise handle the grievance. Failure to pursue the grievance in
the way requested by the employee does not necessarily constitute a breach. (United Teachers
of Los Angeles (Buller) (1984) PERB Decision No. 438.) Buxton's allegations fail to reach
the standard for arbitrary, discriminatory or bad faith conduct.
ORDER
The unfair practice charge in Case No. LA-CO-91-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
16