Decision 2408H – Trustees of the California State University (East Bay)
Decision Date: January 13, 2015
Decision Type: PERB Decision
Description: The charging party, a public school employee, appealed the dismissal of her unfair practice charge alleging that the exclusive representative had violated its duty of fair representation by failing to grieve the charging party’s probationary release from employment.
Disposition: The Board adopted the dismissal of the charge as untimely because the charging party did not file her charge with PERB until approximately one and one-half years after her release and after her last contact with the representative who had advised charging party that it would not file a grievance on her behalf.
Perc Vol: 39
Perc Index: 87
300.05000 – Grievances
(HEERA section 3567 grants employees a right to file grievances without the interference of their exclusive representative.) When a grievance reaches the stage of arbitration, the individual’s right to present grievances and have them adjusted comes to an end. The “right” to an independent, neutral evaluation of a grievance is not established by HEERA. While HEERA section 3567 provides an employee the right to present grievances to his or her employer, the statute does not prescribe how the employer will process and consider such grievances and does not require a factfinding that is free of management influence or control. When the right to file grievances and have grievances considered is also set forth internally in the CBA itself, a grievant can look to those processes in determining whether his statutory rights have been interfered with.
400.01000 – In General; Standards
Failure by CSU to implement faculty hearing committee’s final and binding recommendation for a dean to issue a letter of apology to charging party as a resolution of a grievance harms charging party’s right to receive the remedy he was afforded pursuant to the grievance process. Five-month delay in CSU’s performing audit ordered by a faculty hearing committee’s final and binding recommendation as a resolution of a grievance was justified by the insufficient number of auditors facing multiple simultaneous audit requests and charging party’s failure to show that he was harmed by the delay. Charging party fails to demonstrate a prima facie case that slight harm was caused to his grievance rights, because CSU’s acceptance of the faculty hearing committee’s recommended decision to modify the university and college office hours policy was limited to the committee’s recommended decision itself. CSU produced more than an adequate business justification to support decision to have law enforcement present during grievance hearings and overcame any slight harm to charging party’s grievance rights, including its zero tolerance for violence policy, charging party’s previous threatening behavior, his suspension and termination therefore, charging party’s refusal to come to the CSU police station prior to the next grievance hearing, and charging party’s announcement that he would take some type of unspecified action if he saw police present. Liu has not demonstrated any harm that he was denied his grievance rights when CSU refused to convert a “contractual procedure” grievance to a “statutory procedure” grievance, as the parties did not stipulate to the change of the character of the grievance, and the governing CBA does not authorize such a change.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board need not consider exceptions which do not at least substantially comply with PERB Regulation 32300 governing exceptions to proposed decisions. A party fails to comply with PERB Regulation 32300(a)(2) by failing to state the specific issues of procedure, fact, law or rationale to which an exception is taken, failing to identify any page or part of the ALJ’s proposed decision to which an exception is taken, and failing to state the grounds for an exception.
1205.03000 – Notices; Posting, Reading, and Mailing
The purpose of posting a notice incorporating the terms of PERB’s order is educational for the represented employees. It is to notify employees of the conduct that was found to be unlawful, assure all employees affected by the decision of their rights and PERB’s conclusions, and inform employees that the controversy is now resolved and the employer is ready to comply with the remedy ordered. Charging party’s request that the posting be placed on the CSU system wide website or the CSUEB campus website therefore is overbroad for the purposes of fulfilling the notification requirement to represented employees, because the visitors to the system wide and campus websites are not only faculty or employees, but students, parents, and members of the public