Coalition of University Employees (Hall) (PERB 2095H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHARDA A. HALL,
Charging Party,
V.
COALITION OF UNIVERSITY EMPLOYEES,
Respondent.
Case No. SF-CO-170-H
PERB Decision No. 2095-H
February 4, 2010
Appearances: Lou Ann Bassan, Attorney, for Sharda A. Hall; Beeson, Tayer & Bodine by
Zachary N. Leeds, Attorney, for Coalition
of
University Employees.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Sharda A. Hall (Hall)
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
(HE ERA) 1 by opposing the reclassification
of
Hall's position. The Board agent dismissed the
charge for failure to state a prima facie case
of
either a breach
of
the duty
of
fair representation
or discrimination.
The Board has reviewed the dismissal and the record in light
of
Hall's appeal, CUE' s
response and the relevant law. 	Based on this review, the Board affirms the dismissal
of
the
charge for the reasons discussed below.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government

BACKGROUND
Hall is employed by the University of California at San Francisco (UC) as an
Administrative Assistant III (AA III) in the Department of Dermatology (Department). The
AA III classification is within the clerical and allied services bargaining unit (CX Unit)
exclusively represented by CUE. Article 2, section E of the collective bargaining agreement
(CBA) between UC and CUE requires UC to notify CUE in writing of any proposed
reclassification that would remove a position or title from the CX Unit. CUE may challenge
the reclassification in writing within 30 days of UC's notice. The parties must then meet to
discuss the reclassification. If agreement is not reached, UC may commence PERB unit
modification procedures.
On April 16, 2008, the Department approved reclassification of Hall's position from
AA III to Analyst I, a classification outside the CX Unit. The following day, Robert Dale
(Dale), a human resources analyst for the Department, notified the president of the CUE local
in writing in accordance with the CBA that UC was proposing to reclassify Hall's position out
of the CX Unit. A copy of the new job description for the reclassified position was attached to
the letter.
On May 2, 2008, Mary Higgins (Higgins), secretary of the CUE local, handwrote the
following on a copy of Dale's April 17, 2008 letter:
CUE does not agree to the removal from bu [bargaining unit].
We believe she is still doing bu work. CUE does agree and
encourages vvhatever salary increase that vvould be given, in fact,
be given. 	5/2/082
On June 10, 2008, Higgins met with UC Labor/Employee Relations Representative
Michael Lum, Department Human Resources Director Stefanie Mott (Mott), and a "Staffing
2 It is unclear from the record whether this notation was made in a meeting between UC
and CUE or if it was written on the letter and returned to UC.
2

and Compensation person."3 Hall was not informed of the meeting and did not attend. 	On
June 13, Mott told Hall that CUE disagreed with the reclassification of Hall's position.
On June 16 and 17, 2008, Hall and Higgins corresponded by email about CUE's
position on the reclassification. Higgins wrote Hall that CUE believed the work Hall
performed as an i\.. .LA.\. III \Vas bargaining unit \Vork and that other .LL\dministrative Assistants in
the CX Unit did the same type of work. Higgins also stated that she recommended UC pay
Hall equivalent to the Analyst I salary. In response to further questioning, Higgins wrote that
CUE and UC were currently litigating the issue before PERB and that this litigation would
resolve the issue for Hall and other Administrative Assistants in the CX Unit.
Over the next several months, Hall attempted to meet with both CUE and UC staff to
discuss her reclassification; no such meeting ever occurred. Also during this time, Hall sought
a copy of CUE's written rejection of her reclassification from both CUE and UC but neither
provided one to her.
Hall filed the instant unfair practice charge on December 1, 2008. Hall amended the
charge on January 23, 2009, and CUE filed a position statement on February 10, 2009. The
Board agent dismissed the charge on I\1arch 23, 2009.
The Board agent found the charge failed to state a prima facie case that CUE breached
its duty to fairly represent Hall because it alleged no facts showing that CUE's disagreement
over Hall's proposed reclassification was arbitrary, discriminatory, or in bad faith. 	The Board
agent also found the charge failed to state a prima facie case of discrimination because CUE' s
3 Based on a string of emails about scheduling the meeting, it appears Dale was the
"Staffing and Compensation person." These emails and a copy of Dale's April 17, 2008 letter
with Higgins' handwritten comments were attached as exhibits to CUE's position statement.
In evaluating whether an unfair practice charge states a prima facie case, PERB is not required
to ignore facts provided by the respondent and consider only the facts provided by the charging
party. (Service Employees International Union #790 (Adza) (2004) PERB Decision No.
1632-M.)
3

disagreement over the reclassification was not an adverse action.4 On appeal, Hall makes the
same allegations as in the amended charge and adds an allegation that CUE breached its duty
of fair representation by not pursuing higher pay for Hall based on her working out of class.
DISCUSSION
1.
Hall alleged that CUE breached its duty of fair representation in violation of HEERA
section 3578. To state a prima facie violation of this section, the charging party must allege
facts showing that the exclusive representative's conduct was arbitrary, discriminatory or in
bad faith. 	(Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H.)
To establish that the exclusive representative's conduct was arbitrary, the charge:
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 rational basis or
devoid of honest judgment.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.)
The burden is on the charging party to show how an exclusive representative abused its
discretion, and not on the exclusive representative to sho\v ho\v it properly exercised its
discretion. (United Teachers - Los Angeles (Wyler) (1993) PERB Decision No. 970.)
"A union's duty of fair representation extends to contract negotiations, contract
administration, and other activities which have a substantial impact upon the relationship of
unit members to their employer." (UY!ited Teachers of Los Angeles (Valadez, et al.) (2001)
PERB Decision No. 1453.) Acting as the representative of the entire bargaining unit
sometimes requires the exclusive representative to place the interest of the majority over that
Because Hall's appeal does not challenge the Board agent's dismissal of the
discrimination allegation, we do not address this allegation further.
4
4

of individual employees. As the United States Supreme Court stated in Ford Motor Co. v.
Huffman (1953) 345 U.S. 330, 338:
Inevitably differences arise in the manner and degree to which the
terms of any negotiated agreement affect individual employees
and classes of employees. The mere existence of such
differences does not make them invalid. The complete
satisfaction of all vvho are represented is hardljl to be expected. A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in the
exercise of its discretion.
Thus, an exclusive representative does not breach its duty of fair representation by taking a
position that is unfavorable to an individual unit member but beneficial to the bargaining unit
as a whole. (California School Employees Association & its Chapter 379 (Dunn) (2009) PERB
Decision No. 2028; Castro Valley Unified School District (1980) PERB Decision No. 149.)
That is exactly what happened here. According to Higgins' handwritten notes of May 2,
2008, on Dale's April 17 letter, and her emails to Hall on June 16 and 17, 2008, CUE refused to
agree to the reclassification of Hall's position to Analyst I because it believed Hall was
performing bargaining unit work. As Higgins explained to Hall in one of those emails, CUE
believed UC was trying to reclassify Administrative Assistants to Analyst I positions "in an
attempt to weaken the union." Higgins also informed Hall during this email exchange that UC
and CUE were currently litigating similar proposed reclassifications before PERB.5
An exclusive representative has an interest in ensuring that bargaining unit work is not
removed from the bargaining unit. (See Rialto Unified School District (1982) PERB Decision
No. 209 [holding transfer of work out of bargaining unit is a mandatory subject of bargaining
in part because "diminution of unit work by transferring functions weakens the collective
5 The appropriate unit placement of six UC Administrative Assistant positions is
currently before the Board on exceptions to an administrative law judge's proposed decision in
Case Nos. SF-UM-620-H and SF-UM-621-H.
5

strength of employees in the unit and their ability to deal effectively with the employer and can
affect the viability of the unit itself'].) Consequently, the charge fails to establish that CUE's
decision to oppose the reclassification of Hall's position out of the CXUnit "was without a
rational basis or devoid of honest judgment."
Hall nonetheless argues that CUE' s decision was not based on an honest judgment
because it never "reviewed any job description or compared job descriptions for
Administrative Assistant III and Analyst I." Dale's April 17, 2008 letter to the CUE local
president stated that a copy of the new job description for the reclassified position was
attached. The charge alleged no facts from which PERB could conclude that the job
description was not attached to the letter or that CUE did not review the job description before
deciding to oppose the reclassification.
The charge also fails to allege any facts showing that CUE' s decision was
discriminatory. Indeed, based on Higgins' emails to Hall, it appears that CUE took the same
position with regards to other proposed reclassifications of Administrative Assistants to
Analyst I positions. Nor does the charge establish that CUE acted in bad faith. 	In fact, CUE
recommended that UC pay Hall the salary she vvould have received had CUE agreed to the
reclassification. For these reasons, the charge failed to state a prima facie case that CUE
breached its duty to fairly represent Hall.6
6 Hall also contends that CUE was required to negotiate with UC over her
reclassification instead of merely opposing it. The duty to bargain in good faith is owed only
between the exclusive representative and the employer. (Oxnard School District (Gorcey and
Tripp) (1988) PERB Decision No. 667.) Therefore, because the union's duty to bargain in
good faith is owed to the employer and not to the individual employees, individual employees
do not have standing under HEERA to allege that a union has breached that duty. (Oxnard
Educators Association (Gorcey and Tripp) (1988) PERB Decision No. 664.)
6

2.
	New Allegations on Appeal
Hall's appeal contains new allegations not presented to the Board agent. "Unless good
cause is shown, a charging party may not present on appeal new charge allegations or new
supporting evidence." (PERB Reg. 32635(b).)7 "The purpose
of
PERB Regulation 32635(b)
is to require the charging party to present its allegations and supporting evidence to the Board
agent in the first instance, so that the Board agent can fully investigate the charge prior to
deciding whether to issue a complaint or dismiss the case." (Regents
of
the University
of
California (2006) PERB Decision No. 1851-H.) The Board has not found good cause to
consider new allegations presented on appeal when the evidence underlying the allegations was
available to the charging party prior to the dismissal
of
the charge and the appeal fails to
explain why the allegations could not have been made to the Board agent during the
investigation. (E.g., California School Employees Association & its Chapter 183 (Richards)
(2004) PERB Decision No. 1716; University
of
California (Lawrence Berkeley Laboratory)
(1993) PERB Decision No. 998-H.)
Hall alleges for the first time in her appeal that CUE breached its fiduciary duty to her by
failing
to pursue higher compensation
for the out
of
class
V'
✓
ork
she
vvas
performing. The
amended charge alleged that Higgins asked Hall in a December
1,
2008 email whether Hall
wanted CUE to pursue a higher salary for her. Thus, it is clear that Hall knew as
of
that date that
CUE had not taken action on increasing her compensation. Because Hall knew
of
CUE's alleged
breach prior to filing her amended charge,
\Ve
find no good cause to consider this
nevv
allegation
on appeal.
7 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
7

ORDER
The unfair practice charge in Case No. SF-CO-170-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
8