Regents of the University of California (PERB 2153H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

YI-KUANG LIU,
Charging Party, Case No. LA-CE-1065-H ©
Vv. PERB Decision No. 2153-H
REGENTS OF THE UNIVERSITY OF December 30, 2010
CALIFORNIA,
Respondent.

Appearance: Yi-Kuang Liu, on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Yi-Kuang Liu (Liu) of a Board agent’s dismissal (attached) of his unfair
practice charge. The charge alleged that the Regents of the University of California violated the
Higher Education Employer-Employee Relations Act (HEERA),’ by discriminating against Liu,
wrongfully terminating his employment, breaching his employment contract, defaming his
character, and misrepresenting his scholarly/academic efforts.

The Board has reviewed the dismissal and the record in light of Liu’s appeal and the
relevant law. Based on this review, the Board finds the Board agent’s warning and dismissal
letters to be a correct statement of the law and well-reasoned, and therefore adopts them as the

decision of the Board itself.”

‘ HEERA is codified at Government Code section 3560 et seq.

* The Board does not adopt the references to Campbell Municipal Employees Assn. v.
City of Campbell (1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn. v. City of
San Leandro (1976) 55 Cal.App.3d 553, as support for the well-established discrimination test
set forth in Novato Unified School District (1982) PERB Decision No. 210. (Fontana Unified
School District (2010) PERB Decision No. 2147.)

ORDER
The unfair practice charge in Case No. LA-CE-1065-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
2
Chair Dowdin Calvillo and Member McKeag joined in this Decision.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
F
March 4, 2010
Yi-Kuang Liu
Re: 	Yi-Kuang Liu v. Regents of the University of California
Unfair Practice Charge No. LA-CE-1065-H
DISMISSAL LETTER
Dear Mr. Liu:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009 and was amended on September 30, October 1, and
December 22, 2009. 1 Yi-Kuang Liu alleges that the Regents of the University of California
(UCLA ~r University) violated the Higher Education Employer-Employee Relati_ons Act
(HEERA or Act)2 by discriminating against him, wrongfully terminating his employment,
breaching his employment contract, defaming his character, and misrepresenting his
scholarly/academic "efforts."
Mr. Liu was informed in the attached Warning Letter dated December 3, 2009, that the above-
titled charge did not state a prima facie case. Mr. Liu was advised that, if there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in the
December 3 Warning Letter, he should amend the charge. Mr. Liu was further advised that,
unless he amended the charge to state a prima facie case or withdrew it prior to December 14,
2009, the charge would be dismissed.
On December 8, 2009, Mr. Liu informed the undersigned that his address had changed and that
he did not receive the December 3 Warning Letter. In response, on December 8, 2009, the
undersigned sent the December 3 Warning Letter to Mr. Liu's new address and verbally
1 Since Mr. Liu's initial filing of the above-titled charge, he has sent PERB various
cards and letters expressing his gratitude to PERB for investigating this matter. Mr. Liu was
advised by the undersigned on multiple occasions that PERB is prohibited from considering
documents not accompanied by a completed proof of service form. 	( United Educators of
San Francisco (Banos) (2005) PERB Decision No. 1764; Service Employees International
Union, Local 790 (Fanene) (2003) PERB Decision No. 1513.) Accordingly, the above-
described cards and letters sent by Mr. Liu to PERB were not considered during the
undersigned's investigation of the above-titled charge.
2 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and PERB's Regulations may be found at www.perb.ca.gov.

LA-CE-1065-H
March 4, 2010
Page 2
instructed Mr. Liu to file either an amended charge or a request for withdrawal by December
22, 2009. On December 22, 2009, Mr. Liu filed an amended charge with PERB.
The December 22 amended charge contests the rational of the December 3 Warning Letter and
presents additional facts. 	Mr. Liu asserts that he did not engage in any union activity because
the University "deliberately/systematically sneaked me into a [job] title" that was not
represented by an employee organization. Mr. Liu goes on to argue that he exercised his rights
under HEERA when he filed various complaints with the University. The December 22
amended charge provides in relevant part:
I described some concerns about the unethical activities in 2008
to the [UCLA] Ombuds Office like radioactive material handling,
employment title code misuse, violations of the [UCLA] policies,
discriminations data [sic] integrity, equipment fund usage, major
capital equipment purchase, and others. The data integrity issue
and violation of offer letter/contract was mentioned to the
Postdoctoral Office in 2008. Later[,] I consulted the NIH[3] and
the UCLA grant division about the data integrity issues in
January-February, 2009. I also filed [a] report in Jan[uary]-
Feb[ruary], 2009 to the UCLA compliance office and March,
2009 to the UC compliance office. Due to the confidential
processes, [sic] I was not supposed to know the details. Through
several occasions that the [sic] supervisor would know
immediately the contents of the consultation or discussions with
the related offices (Ombuds) etc., it was clear that the
supervisor/department had been unhappy and could have planned
for the retaliation, including denying my group or protected
activities.
Discussion
1. 	PERB's Jurisdiction
As stated in the December 2 Warning Letter, PERB is a quasi-judicial administrative agency
charged with administering California's collective bargaining statutes covering public
employees. One of the statutes PERB administers is HEERA, which governs labor relations
between public higher education employers (California State University System, the University
of California System and Hastings College of Law) and their employees. However, HEERA is
limited in scope, regulating only certain conduct by employers. (Los Angeles Community
Mr. Liu does not define "NIH."

LA-CE-1065-H
March 4, 2010
Page 3
College District (1979) PERB Order No. Ad-64.)4 For example, HEERA does not address-
and PERB has no jurisdiction over-allegations that a higher education employer breached an
employment contract with an employee, defamed an employee's character or misrepresented
an employee's scholarly/academic efforts. (See generally Union of American Physicians &
Dentists (Menaster) (2007) PERB Decision No. 1918-S [PERB'sjurisdiction does not include,
among other things, enforcement of the Americans with Disabilities Act, the U.S. Constitution,
the Whistleblower Protection Reporting Act, laws governing improper government activity,
laws governing sexual harassnient, laws governing defamation, or laws governing the
unemployment insurance process].) Accordingly, Mr. Liu's allegations that UCLA violated
HEERA by breaching his employment contract, defaming his character, and misrepresenting
his scholarly/academic efforts are hereby dismissed.
2. 	Discrimination/Retaliation
As stated in the December 2 Warning Letter, to demonstrate that an employer discriminated or
retaliated against an employee in violation of HEERA section 3571 (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 exercise of those rights. (Campbell Municipal
Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San Leandro
Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San Leandro); Novato
Uni,lied School District (1982) PERB Decision No. 210 (Novato).)
In determining whether evidence of adverse action is established, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Palo Verde Unified
School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
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), it does not, without more, demonstrate the necessary connection or
4 When interpreting HEERA, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act and California labor relations statutes with parallel
provisions. (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-1065-H
March 4, 2010
Page 4
"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 a/Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (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; San Leandro, supra,
55 Cal.App.3d 553); (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 Unified School District (2003) PERB Decision No. 1529) or
the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) 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 School District, supra,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
HEERA section 3567 provides:
Any employee or group of employees may at any time, either
individually or through a representative of their own choosing,
present grievances to the employer and have such grievances
adjusted, without the intervention of the exclusive representative;
provided, the adjustment is reached prior to arbitration pursuant
to Section 3589, and the adjustment is not inconsistent with the
terms of a written memorandum then in effect. The employer
shall not agree to resolution of the grievance until the exclusive
representative has received a copy of the grievance and the
proposed resolution, and has been given the opportunity to file a
response.
In Regents of the University of California (1991) PERB Decision No. 872-H (Regents), 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 Regents, supra, PERB Decision No. 872-H, a campus police officer filed
multiple grievances pursuant to the University's internal personnel policies, filed a charge with
the Equal Employment and Opportunity Commission (EEOC), challenged work performance
evaluations, and sent a letter to his campus' chancellor urging the chancellor to reject the
creation of a civilian review board for the campus police department. At the time Regents,
supra, PERB Decision No. 872-H was decided, there was no exclusive representative for
campus police officers. In concluding that the campus police officer had not engaged in

LA-CE-1065-H
March 4, 2010
Page 5
activity guaranteed by HEERA, the Board relied heavily on the fact that the campus police
officer's activities were entirely personal in nature and not an extension
of
concerted action.
(Ibid.)
In San Joaquin Delta Community College District (2010) PERB Decision No. 2091 (San
Joaquin),5 the Board held that employee complaints to employers are protected only when
those complaints "are a logical continuation
of
group activity."
PERB Regulation 326 l 5(a)(5)6 requires, among other things, that an unfair practice charge
include a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.) For determining
whether the charge states a prima facie case, the factual allegations in the charge are deemed
true. However, factually unsupported legal conclusions in the charge need not be accepted as
true. (Charter Oak Unified School District (1991) PERB Decision No. 873.)
In the December 22 amended charge, Mr. Liu alleges that his "supervisor/department had
deliberately/systematically sneaked me into a title that I could not have the union [sic]
or
collective bargain [sic] representation. Therefore, their action for this alone was equivalent to
retaliation for my protected activities." Mr. Liu has not presented PERB with any facts in
support
of
this conclusion. Accordingly, Mr. Liu's allegation that the University violated the
Act by intentionally placing him in a job classification that is not represented by an employee
organization is hereby dismissed. (PERB Regulation 32615(a)(5); Charter Oak Unified School
District, supra, PERB Decision No. 873.)
Further, while Mr. Liu alleges that he filed numerous complaints with the University, Mr. Liu
does not allege or present facts establishing that his complaints were a continuation
of
group
activity. (San Joaquin, supra, PERB Decision No. 2091; Regents, supra, PERB Decision
No. 872~H.) For example, although Mr. Liu asserts that he complained to the Office
of
Ombuds Services about "radioactive material handling," Mr. Liu does not provide facts
demonstrating that he filed the complaint because he and his coworkers were concerned about
their safety or for another reason that would show that his complaint was an extension
of
group
activity. 	Consequently, Mr. Liu has not overcome his burden
of
providing PERB with a clear
and concise statement
of
facts demonstrating that he engaged in protected activity.
5 A case decided under the Educational Employment Relations Act (EERA), which
unlike HEERA specifically grants employees "the right to represent themselves individually."
(Gov. Code, § 3543, subd. (a).)
6 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-1065-H
March 4, 2010
Page 6
Consequently, Mr. Liu has not established that the University discriminated against him
because he engaged in protected activity. (Novato, supra, PERB Decision No. 210.)
Accordingly, Mr. Liu's allegation that the University discriminated against him is dismissed.
Right to Appeal
Pursuant to PERB Regulations, Mr. Liu may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Cal. Code Regs, tit.
8,
§ 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code 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
PERB Regulation 32135(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.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
l 031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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with the Board an original and five copies
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a statement in opposition
v-1ithin
twenty (20)
calendar days following the date
of
service
of
the appeal. (Cal. Code Regs, tit. 8, § 3263 5,
subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)

LA-CE-1065-H
March 4, 2010
Page 7
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
the
request upon each party. 	(Cal. Code Regs, tit. 8, § 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
Sean McKee
Regional Attorney
____
---:7'
___
...;..c
____
_
Attachment
cc: 	Maure Gardner, Manager, Labor Relations

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
F
December 3, 2009
Yi-Kuang Liu
Re: 	Yi-Kuang Liu
v.
Regents
of
the University
of
California
Unfair Practice Charge No. LA-CE-1065-H
WARNING LETTER
Dear Mr. Liu:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009 and was amended on September 30 and October
1,
2009. 	Yi-Kuang Liu alleges that the Regents
of
the University
of
California (UCLA or
University) violated the Higher Education Employer-Employee Relations Act (HEERA or
Act) 1 by discriminating against him, wrongfully terminating his employment, breaching his
employment contract, defaming his character, and misrepresenting his scholarly/academic
"efforts." The above-titled charge and amended charges total approximately six-hundred
pages. The following summarizes the relevant facts.
Background as Alleged
Dr. Liu was hired by UCLA as a postdoctoral scholar in June 2006. At all times relevant
herein, Dr. Liu works "in the super-resolution microscopy laboratory in the Anesthesiology
Department in the David Geffen School
of
Medicine" (lab). Dr. Liu's job classification is not
represented by an exclusive representative. UCLA has adopted several employment policies
that permit an employee to file grievances. Dr. Liu' s immediate supervisor is Enrico Stefani.
·when Dr. Liu was first hired by UCLA, he worked alone in the lab. A few months into Dr.
Liu's employment with UCLA, other employees, including Zhaonian Zhang and Hui Zhao,
began working in the lab.
The charge provides in relevant part:
After the new hires arrived, [Dr. Stefani] said [they] were the
experts in my work and [he J asked me to transfer all [
of my
work] to.them. I [responded by stating that] they had their own
projects and this was no[t] in accordance with [UCLA's] offer [
of
employment to me]. After 3
...
discussions, [Dr. Stefani]
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and PERB's Regulations may be found at www.perb.ca.gov.

LA-CE-1065-H
December 3, 2009
Page 2
refused to listen to m[e.] I [then] talked to the Dep[artment]
Chair. . . . The [Department] Chair said she had to talk to [Dr.
Stefani]. 	She did so ... one afternoon. 	[Dr. Stefani] ceased the
pressing actions but he [was] upset [with me because] I did not
follow the chain of command[]. This could be considered my
first grievance.
In an e-mail message dated August 6, 2007, Dr. Stefani advised Dr. Liu:
Today I had a meeting with the Chair, Dr. Kapur. ...
I was surprised that you did not follow the chain of command
with me about your recent concerns. According to the Chair's
point of view and the meetings I had with you, you are not
willing to share your knowledge with junior trainees. This is not
acceptable in our [Department] and in general at David Geffen
School of Medicine at UCLA .... If you do not feel that you can
share this mission, I suggest that you find another place to work
outside of UCLA. ...
With this situation, my support for your advancement to an
academic position is on hold.
In a letter dated November 13, 2007, Dr. Stefani advised Dr. Liu:
I am writing to you to further document and further explain the
issues and the expectations I have concerning your performance
as a member of my laboratory. 	I have counseled you in written
form on these issues since the e-mail on August 6, 2007.
As you are aware, I have counseled you several times then
reiterated in my e-mails of October 10, 2007 and October 24,
2007 that "you start documenting the mechanical and electronic
layout" and "you will prepare a detailed documentation of the
hardware including electronic circuitry, mechanical layout, optic
schemes .... " However, until now this has not happened ....
Your constant refusal (personal and others) to participate in the
training and sharing the information of what you are building
with junior bioengineering trainees is unacceptable ....
In summary, I am very disappointed and concerned about the
negative attitudes you express regarding your refusal to
participate in laboratory meetings, sharing of information of the
microscopes you are building, and teaching of others. I am also

LA-CE-1065-H
December 3, 2009
Page 3
disappointed by the delays in completing the work needed to
report a successful first year. . . . I have explained to you your
duties in detail in the email dated 10/10/2007. I did all I can do
to facilitate your career at UCLA. However, your constant
negativity in sharing information and teaching new trainees,
makes this very unlikely.
If you do not plan or if you are unwilling or unable to perform
these assignments and duties, your academic career will be in
jeopardy .... "
Upon receiving this letter, Dr. Liu contacted the "Postdoctoral office." The Postdoctoral office
informed Dr. Liu that the letter was the first step the University took when it intended to
terminate an employee's employment. The Postdoctoral office referred Dr. Liu to the
"Ombuds office" where Dr. Liu alleges he filed "initial reports."
On December 12, 2007, Dr. Liu submitted a response to the letter (Rebuttal Letter). Dr. Liu
asserts that on December 12, 2007, Dr. Stefani apologized to him for issuing him the letter.
Dr. Stefani then informed Dr. Liu that the letter would be removed from his personnel file and
that the matter was officially closed.
In an e-mail message dated December 17, 2007, Dr. Liu asked Anesthesiology Department
Administrator Sharyn Roberts if there was anything else he needed to provide UCLA in
regards to the November 13 letter. In an e-mail message dated December 18, 2007, Dr.
Roberts responded in relevant part:
I have spoken to the Ombudsman twice now and understand that
you are still concerned about the letter. I would like to make it
clear to you that the letter was part of the "counseling" that
needed to take place to explain to you what was expected of you.
Your performance and behavior were not meeting expectations as
we have discussed in detail and in these cases, we normally
counsel employees and present a letter outlining the points of our
discussion and expectations. That was the spirit of the letter. It
was not meant as a formal warning/disciplinary or a dismissal
letter but a means to tell you what was expected so that you
would have an opportunity to understand and meet those
expectations.
The next day, Dr. Roberts sent Dr. Liu another e-mail message that states in relevant part:
"You need to concentrate your efforts participating in the group and working on your very
important project and not in preparing a formal written response to your counseling letter since
it is not required."

LA-CE-1065-H
December 3, 2009
Page 4
In the Spring of 2008, Dr. Stefani began discussing the possibility of "adjusting" Dr. Liu' s job
title to "Assistant Project Scientist." In several e-mail messages dated between April and June
2008, Dr. Liu expressed his concern to Dr. Stefani that changes to his job title may negatively
impact his duties, pay, and future employment with UCLA. For example, in an e-mail
message dated June 2, 2008, Dr. Liu asked Dr. Stefani: "Today you mentioned that it might be
possible that [my title] will be adjusted to the engineer title first. 	Would you mind letting me
know the reason for it? As we know, it will be more difficult and complicated for adjusting
from non-academic title to the academic one later on."
On June 2, 2008, Dr. Liu sent a separate e-mail message to Dr. Stefani's supervisor,
Anesthesiology Department Chair Patricia Kapur. In the e-mail message Dr. Liu stated in
relevant part:
I am also concerned about the possible delay for catching the
7/1/2008 timeline and being unemployed or being changed to [a]
non-academic position [that might create] difficulties [for me to
get] back o[n] the academic track. If the publications are the
limiting factor[], the key data and analysis of several publications
[Dr. Stefani] mentioned were in his hands for a long time. I am
trying to work with him and find a clear outline. Going into the
project scientist without [a] clear outline of the academic track
could be the graveyard for [my] career.
In November 2008, Dr. Liu consulted the Office of Ombuds Services regarding Dr. Stefani' s
desire to adjust his job title. The Office of Ombuds Services responded by setting up a
mediation session between Dr. Stefani and Dr. Liu. Dr. Liu alleges that Dr. Stefani "was
initially upset by my seeking the mediation from the Ombuds [o]ffice for the title adjustment
and publication issues."
In a letter dated November 17, 2008, Dr. Stefani offered Dr. Liu a "full-time (100%)
appointment as an Assistant Researcher, Step I. ... " The Assistant Researcher position
included a pay raise and greater benefits. 	Shortly after the Assistant Researcher position was
offered to Dr. Liu, Dr. Stefani notified Dr. Kapur that he was putting the offer to Dr. Liu on
"hold." On November 24, 2008, Dr. Liu filed a grievance against UCLA. The current record
does not describe the subject matter of the grievance.
On December 2, 2008, Dr. Liu filed a "report" with the Office of Ombuds Services alleging
that UCLA was discriminating against him because of his age. Dr. Liu alleges that Dr. Stefani
knew that he had filed a discrimination report with the Office of Ombuds Services because Dr.
Stefani made comments to Dr. Liu about the discrimination report.
In mid-December 2008, Dr. Stefani again reassured Dr. Liu that the November 13 letter had
been removed from Dr. Liu's personnel file and that the matter was closed. Dr. Stefani
specifically told Dr. Liu that he did not have to worry about the letter.

LA-CE-1065-H
December 3, 2009
Page 5
On January
8,
2009, Dr. Zhao and Dr. Zhang reported to Dr. Stefani that while they were
working on a microscope in the lab, Dr. Liu suddenly got up from his work station and
confronted them. Dr. Liu allegedly demanded to know what Dr. Zhao and Dr. Zhang
were
doing to one
of
his projects. Dr. Zhao and Dr. Zhang responded by informing Dr. Liu
that
Dr.
Stefani had ordered them to work on the microscope. In a raised voice, Dr. Liu demanded that
they stop working on the microscope because it was his project. Immediately thereafter, Dr.
Stefani had Dr. Liu escorted
off
the UCLA campus by the police.
In a letter dated January 12, 2009, Dr. Stefani informed Dr. Liu "that as a result
of
your actions
on Thursday, January 8, 2009, I am placing you on an investigatory leave with pay during
which time the department shall review your activities in the laboratory on Thursday
afternoon."
UCLA interviewed Dr. Liu, Dr. Stefani, Dr. Zhou, Dr. Zhang and Dr. Mansoureh Eghbali
regarding the January 8 incident. Dr. Zhou and Dr. Zhang were later interviewed a second
time. A summary
of
the interviews and some background information on Dr. Liu were then
forwarded to a "committee" who recommended that Dr. Liu "not return to work
...
and [that]
his University appointment be terminated." Dr. Liu insists that the summary
of
his interview is
not accurate. The summary
of
the interviews also references that Dr. Liu had previously
sought the assistance
of
the Office
of
Om buds Services . The summary
of
the interviews
provides in relevant part: "Three months ago[,] YK sought the advice
of
the Om buds office
based on his belief that he was being mistreated. YK and the Ombuds office (Kathy)
met
with
Dr. Stefani."
In a letter dated January 30, 2009, Dr. Kapur informed Dr. Liu "that it is the intent
of
the
Department
of
Anesthesiology to dismiss you from your employment as a Project Scientist
effective end
of
business on February 1
7, 2009, for inappropriate and disruptive behavior in
the laboratory
of
Dr. Enrico Stefani." The January 3 0 letter concludes in relevant part: 	"You
have a right to respond to this intent to dismiss in writing within
14
calendar days
of
the date
of
this letter." Attached to the January 30 letter was a copy
of
the November
13
letter. 	Dr.
Liu's Rebuttal Letter was not attached to the November
13
letter.
While the current record is not entirely clear, it appears that Dr. Liu either amended his
grievance or filed a new grievance regarding the University's decision to terminate his
employment on February 17, 2009.
Discussion
1. 	PERB 's Jurisdiction
PERB is a quasi-judicial administrative agency charged with administering California's
collective bargaining statutes covering public employees. One of the statutes PERB
administers is HEERA, which governs labor relations between public higher education
employers (California State University System, the University of California System and
Hastings College of Law) and their employees. However, HEERA is limited in scope,

LA-CE-1065-H
December 3, 2009
Page 6
regulating only certain conduct by .employers. (Los Angeles Community College District
(1979) PERB Order No. Ad-64.)2 For example, HEERA does not
address-and
PERB has no
jurisdiction
over-allegations
that a higher education employer breached an employment
contract with an employee, defamed
ari
employee's character or misrepresented an employee's
scholarly/academic efforts. (See generally Union
of
American Physicians & Dentists
(Menaster) (2007) PERB Decision No. 1918-S [PERB'sjurisdiction does not include, among
other things, enforcement
of
the Americans with Disabilities Act, the U.S. Constitution, the
Whistle blower Protection Reporting Act, laws governing improper government activity, laws
governing sexual harassment, laws governing defamation, or laws governing the
unemployment insurance process].) Accordingly, Mr. Liu's allegations that UCLA violated
HEERA by breaching his employment contract, defaming his character, and misrepresenting
his scholarly/academic efforts must be dismissed.
HEERA section 3571 clearly sets forth unlawful employer practices under HEERA:
3 571. 	Unlawful employer practices
It shall be unlawful for the higher education employer to do any
of
the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter.
...
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
( c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
(d) Dominate or interfere with the formation or administration of
any employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another. However, subject to rules
and regulations adopted by the board pursuant to Section 3563,
an employer shall not be prohibited from permitting employees to
engage in meeting and conferring or consulting during working
hours without loss of pay or benefits.
When interpreting HEERA, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act and California labor relations statutes with parallel
provisions. (See Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.) 	·

LA-CE-1065-H
December 3, 2009
Page 7
(e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).
(f) Consult with any academic, professional, or staff advisory
group on any matter within the scope
of
representation for
employees who are represented by an exclusive representative, or
for whom an employee organization has filed a request for
recognition or certification as an exclusive representative until
such time as the request is withdrawn or an election has been held
in which "no representative" received a majority
of
the votes cast.
This subdivision is not intended to diminish the prohibition
of
unfair practices contained in subdivision (d). For the purposes
of
this subdivision, the term "academic" shall not be deemed to
include the academic senates.
As an individual employee, Mr. Liu does not have standing to allege violations
of
HEERA
section 3571, subdivisions (b) through (f). (See Orange Unified School District (2004) PERB
Decision No. 1670 [individual employees do not have standing to allege violations
of
sections
of
the Act that protect the collective bargaining rights
of
employee organizations].) However,
Mr. Liu has standing to allege a violation
of
HEERA section 3571 (a). Accordingly, this
Warning Letter analyzes the above-titled charge under HEERA section 3571(a). (Los Angeles
County Office
of
Education (1999) PERB Decision No. 1360 [where the charging party fails to
allege that any specific section
of
the Government Code has been violated a Board agent, upon
a review
of
the charge, may determine under what section the charge should be analyzed].)
While HEERA section 3571 (a) does not address every type
of
"wrongful termination," it does
prohibit a higher education employer from discharging an employee because he exercised
rights guaranteed by HEERA. (California State University, Fresno (1990) PERB Decision
No. 845-H.)
2. 	Discrimination/Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
HEERA section 3571(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 exercise
of
those rights. ( Campbell A1unicipal Employees Assn.
v.
City
of
Campbell (1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro); Novato Unified School District (1982)
PERB Decision No. 210 (Novato).)
In determining whether evidence of adverse action is established, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Palo Verde Unified
If Mr. Liu believes another legal theory exists, please notify me of it.

LA-CE-1065-H
December 3, 2009
Page 8
School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
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), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland El~mentary 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;
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (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; San Leandro, supra,
55 Cal.App.3d 553); (4) the employer's cursory investigation of the employee's misconduct
(City a/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 jμstification
at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or
the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) 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 School District, supra,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
HEERA section 3567 provides:
Any employee or group of employees may at any time, either
individually or through a representative of their own choosing,
present grievances to the employer and have such grievances
adjusted, without the intervention of the exclusive representative;
provided, the adjustment is reached prior to arbitration pursuant
to Section 3589, and the adjustment is not inconsistent with the
terms of a written memorandum then in effect. The employer
shall not agree to resolution of the grievance until the exclusive

LA-CE-1065-H
December 3, 2009
Page 9
representative has received a copy of the grievance and the
proposed resolution, and has been given the opportunity to file a
response.
In Regents of the University a/California (1991) PERB Decision No. 872-H (Regents), 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 Regents, supra, PERB Decision No. 872-H, a campus police officer filed
multiple grievances pursuant to the University's internal personnel policies, filed a charge with
the Equal Employment and Opportunity Commission (EEOC), challenged work performance
evaluations, and sent a letter to his campus' chancellor urging the chancellor to reject the
creation of a civilian review board for the campus police department. At the time Regents,
supra, PERB Decision No. 872-H was decided, there was no exclusive representative for
campus police officers. In concluding that the campus police officer had not engaged in
activity guaranteed by HEERA, the Board relied heavily on the fact that the campus police
officer's activities were entirely personal in nature and not an extension of concerted action.
(Ibid.)
Like the police officer in Regents, supra, PERB Decision No. 872-H, Dr. Liu sent e-mail
messages to his supervisors about his employment conditions and rebutted a negative work
performance evaluation.4 Similar to the police officer in Regents, supra, PERB Decision
No. 872-H, Dr. Liu filed a complaint with the Office of Ombuds Services alleging that he was
the victim of age discrimination. Analogous to the police officer in Regents, supra, PERB
Decision No. 872-H, Dr. Liu also filed grievance(s) against the University pursuant to the
University's personnel policies, not a collective bargaining agreement. Accordingly, the
current record shows that all of Dr. Liu' s activities were entirely personal in nature. Therefore,
the current record does not establish that Dr. Liu exercised rights under HEERA because none
of the activities Dr. Liu engaged in were an extension of concerted action. (Ibid.)
Consequently, Dr. Liu has also failed to establish that the University was aware that he
engaged in protected activity and that the University terminated his employment because he
engaged in protected activity.
4 Regents of the University a/California (2006) PERB Decision No. 1851-H is
distinguishable from the present charge because the employee in Regents of the University of
California, supra, PERB Decision No. 1851-H appealed his performance evaluation pursuant
to a specific provision in the CBA. 	Thus, the employee's activity in Regents of the University
of California, supra, PERB Decision No. 1851-H was an extension of concerted activity.

LA-CE-1065-H
December 3, 2009
Page 10
For these reasons the charge, as presently written, does not state a prima facie case. 5 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Dr. Liu may amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled Third Amended Charge, contain all
the facts and allegations Dr. Liu wishes to make, and be signed under penalty of perjury by Dr.
Liu or an authorized agent of Dr. Liu. The amended charge must have the case number written
on the top right hand corner of the charge form. 	The amended charge must be served on the
University's representative and the original proof of service must be filed with PERB. If an
amended charge or withdrawal is not filed on or before December 14, 2009,6 PERB will
dismiss the above-titled charge. Questions concerning this matter should be directed to me at
the telephone number listed above.
Sincerely,
Sean McKee
Regional Attorney
SM
5 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
6 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)