Regents of the University of California (University of California Los Angeles) (PERB 0267HA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
UNITED HEALTH 	CARE EMPLOYEES,
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, LOCAL 660, AFL-CIO, CLC,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA 	(UCLA),
Respondent.
Case No. 	LA-CE-10-H
Request 	for 	Reconsideration
PERB Decision No. 	267-H
PERB Decision No. 	267a-H
May 17, 1983
Appearances: 	Susan M. 	Thomas, 	Attorney 	for 	the Regents of 	the
University 	of 	California.
Before Tovar, Jaeger, 	and Morgenstern, Members.
DECISION
MORGENSTERN, Member: 	The 	Public Employment Relations Board
(PERB or 	Board) 	having 	duly considered 	the 	request 	for
reconsideration 	filed 	by 	the 	Regents 	of 	the University 	of
California 	(University), 	hereby denies 	that 	request.
DISCUSSION
In Regents 	of 	the University 	of California 	(UCLA)
(12/21/82) 	PERB Decision No. 	267-H, 	the Board 	found 	that 	the
University violated subsections 	3571(a) 	and 	(b) 	of 	the Higher
Education Employer-Employee Relations Act1 (HEERA) 	by
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
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unilaterally 	increasing 	the 	workday 	of 	laboratory 	technologists
employed 	in 	the 	UCLA blood 	bank 	from 	10 	hours 	to 	10.5 	hours 	per
day 	without 	providing 	United 	Health 	Care 	Employees, 	Service
Employees 	International Union, Local 660, AFL-CIO, 	CLC 	(SEIU),
the 	nonexclusive 	representative, 	with 	an 	opportunity 	to meet
and 	discuss 	the 	change 	prior 	to 	implementation. 	We 	held 	that
the 	obligation 	to 	meet 	and 	discuss 	matters 	fundamental 	to 	the
fulfillment 	of 	the 	nonexclusive 	representative's
representational 	function 	includes 	a 	requirement 	of 	good 	faith
defined 	as 	meeting, 	listening 	and 	considering 	proposals' with 	an
open 	mind 	prior 	to 	arriving 	at 	a 	determination 	of 	policy 	or
course 	of 	action.
We 	found 	that 	the 	University 	evidenced 	bad 	faith 	by
refusing 	to 	delay 	implementation 	of 	the 	change 	of 	hours 	until
after 	the 	parties 	met 	on 	October 	29 	and 	by 	failing 	to 	inform
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified.
Section 	3571 provides, 	in pertinent part:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(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.
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SEIU of 	the 	procedure 	for 	applying 	for 	an exception 	to 	the
University's policy and 	the 	grounds 	on 	which 	such 	exception
could 	be 	granted. 	We, 	therefore, 	affirmed 	the hearing
officer's 	conclusion 	that 	the 	University 	evidenced 	a 	lack 	of
good 	faith, 	meeting 	in 	form only 	with 	a 	fixed 	course 	of 	action
in 	mind 	and 	without 	openly 	seeking 	discussion 	that 	could 	bring
about 	a deviation 	from 	that 	fixed 	course.
Board 	regulation 	324102 provides 	in pertinent part 	as
follows:
(a) 	Any party to a decision of 	the Board
itself 	may, 	because 	of extraordinary
circumstances, 	file a request 	to reconsider
the decision. 	. 	. 	.
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the 	decision 	of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or 	newly discovered evidence or 	law
which 	was 	not 	previously 	available 	and 	could
not 	have 	been 	discovered 	with 	the exercise
of 	reasonable 	diligence.
Here, 	the University does 	not 	seek 	to reverse 	the 	decision
of 	the 	Board. 	It merely requests 	correction 	of 	certain 	alleged
errors.
The 	University 	first 	argues 	that 	the 	Board 	erred 	in 	its
factual 	finding 	that Greg 	Kramp, 	UCLA's labor 	relations
2PERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 310 01 et 	seq.
W	
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manager, 	failed 	to 	inform Carma Rippee, 	the 	blood 	bank
supervisor, 	that 	SEIU had 	requested 	a delay of 	the October 	29
implementation 	date 	to 	provide 	an opportunity 	to meet 	and
discuss 	the 	change 	of 	hours. 	This 	finding 	is 	supported 	by 	the
testimony 	of 	both 	Kramp 	and 	Rippee.3
The 	University 	points 	to 	another 	portion 	of 	Rippee's
testimony where 	she 	states 	that, 	"What he 	[Kramp] 	told me 	is
that 	the 	employee 	representative 	was 	trying 	to postpone 	the
meet 	and 	consult 	for 	I 	don't know what 	reasons." 	This
testimony, 	which clearly 	refers 	to 	"trying 	to 	postpone 	the meet
and 	consult" 	scheduled 	for 	October 	22 does 	not 	contradict
Rippee's 	earlier 	testimony 	or 	our 	finding 	based 	thereon, 	which
refers 	to SEIU's 	attempt 	to postpone 	implementation on
October 	29. 	Thus, 	Rippee's 	testimony 	is 	not 	internally
inconsistent 	and, contrary to the University's contention, 	it
does 	not 	evidence 	any 	confusion or 	misunderstanding 	on 	her 	part.
Moreover, Kramp's testimony 	is clear, direct and
unambiguous. 	His 	testimony 	alone 	is 	sufficient 	to 	support our
finding 	that 	he 	did 	not 	inform 	Rippee 	that 	SEIU had 	requested
that 	implementation 	be 	delayed 	to 	permit meeting 	and
conferring. 	Thus, 	our 	finding was 	not 	erroneous.
The University 	next 	objects 	to 	our 	finding 	that 	Kramp's
failure 	to provide 	Rippee 	with 	this 	information 	raises 	an
3see Reporter's Transcript pp. 	161-162, 	208.
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inference 	of 	bad 	faith, 	given Rippee's 	resistance 	to 	the
proposed 	change 	and 	given 	Kramp's previous 	conduct 	when 	he
asked Rippee 	to 	postpone 	the 	October 	15 	implementation 	date 	and
expressly advised 	her 	of 	the 	reason.
The University's 	objection 	to 	this 	inference on 	the 	grounds
that 	it 	goes 	beyond 	the 	hearing 	officer's 	finding 	is 	without
merit. 	It 	is 	well 	established 	that 	the Board 	is 	required 	to
consider 	the 	entire 	record 	and 	is 	free 	to draw 	its 	own
inferences 	from 	the 	evidence 	presented. 	Santa Clara Unified
School District 	(9/26/79) 	PERB Decision No. 	104; 	and see cases
cited 	therein.
Inasmuch 	as 	our 	factual 	finding 	as 	to Kramp's 	conduct 	was
without 	error, 	the 	inference 	is 	reasonably 	based on 	that
finding 	and 	is 	also without 	error. 	Finding 	no 	error, 	we need
not 	consider 	the 	University's 	further 	claim 	that 	this 	inference
is 	prejudicial 	to Kramp personally 	in 	his 	long-term 	relations
with 	employee 	organizations 	and 	to 	a 	fair 	assessment 	of 	his
credibility 	in subsequent 	hearings. 	However, we note 	that,
even 	if 	this 	inference were 	in error, 	we would 	not find 	this 	to
be 	the 	sort 	of prejudice 	contemplated 	by 	regulation 	32410 	as
providing 	grounds 	for 	reconsideration.
The University's final 	allegation of error 	has merit. 	The
University 	correctly 	points 	out 	that 	the 	hearing 	officer 	who
wrote 	the 	proposed 	decision 	had 	not 	conducted 	the 	hearing 	in
this 	case and, 	therefore, 	did not observe 	the 	demeanor 	and
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credibility of 	the witnesses. 	Thus, 	we erred 	in stating, 	at
page 	7 of 	the 	decision, 	that 	deferral 	to the 	hearing officer 	is
appropriate 	here.
Nonetheless, 	as 	indicated 	in 	the 	sentence 	immediately
following 	this 	erroneous 	statement 	and 	throughout 	the 	remainder
of 	the decision, we, 	in fact, 	engaged 	in a de novo review of
the 	entire 	record 	and 	based 	our 	decision on 	our 	own 	findings.
Thus, 	this statement, 	though 	in error, neither 	caused
substantial 	injury 	nor 	affected 	the 	result 	reached. 	Therefore,
it 	was 	not 	prejudicial within 	the 	meaning 	of 	regulation
32410.4
4 In defining 	prejudicial 	error, 	we 	note 	California Code
of Civil Procedure 	section 	475 which provides 	as 	follows:
No error 	or 	defect 	to 	be 	regarded 	unless 	it
affects 	substantial 	rights
The 	court must, 	in 	every stage 	of an 	action,
disregard 	any 	error, 	improper 	ruling,
instruction, or 	defect 	in 	the pleadings 	or
proceedings 	which, 	in 	the 	opinion of 	said
court, does 	not 	affect 	the 	substantial
rights 	of 	the 	parties. 	No judgment,
decision, or 	decree 	shall be 	reversed or
affected 	by reason 	of any 	error , 	ruling
instruction, or defect, unless 	it shall
appear 	from 	the 	record 	that 	such 	error,
ruling, 	instruction, or defect was
prejudicial, 	and also 	that 	by 	reason of 	such
error, ruling, instruction, or defect, the
said 	party 	complaining 	or 	appealing
sustained 	and 	suffered 	substantial 	injury,
and 	that 	a 	different 	result 	would 	have 	been
probable if such error, 	ruling, 	instruction,
or 	defect 	had 	not 	occurred 	or 	existed.
There 	shall be 	no presumption 	that 	error 	is
.,
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ORDER
The 	request 	by 	the 	Regents 	of 	the 	University of California
that 	the 	Public 	Employment 	Relations 	Board 	grant
reconsideration 	of 	The 	Regents 	of 	the 	University of California
(UCLA) 	(12/21/82) 	PERB Decision No. 	267-H, 	is DENIED.
Members 	Tovar 	and Jaeger 	joined 	in 	this 	Decision.
prejudicial, 	or 	that 	injury was done 	if
error 	is 	shown.
See 	also Black's 	Law Dictionary; 	Witkin, 	California Civil
Procedure, Appeal, 	section 289.
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