Regents of the University of California (University Professional and Technical Employees) (PERB 1188H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL AND
TECHNICAL EMPLOYEES 	(UPTE), 	CWA
LOCAL 9119, 	AFL-CIO,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
)
)
) 	Case No. 	SF-CE-414-H
PERB Decision No. 	1188-H
March 19, 	1997
)
)
)
)
)
)
)
Appearances; 	Eggleston, 	Siegel 	& LeWitter by James E. 	Eggleston,
Attorney, 	for University 	Professional 	and Technical 	Employees
(UPTE), 	CWA Local 9119, 	AFL-CIO; 	Susan H. von Seeburg, Attorney,
for The Regents 	of 	the University of 	California.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Regents 	of 	the University of 	California 	(University) 	to an
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found 	that 	the 	University violated 	the 	Higher 	Education Employer-
Employee Relations Act 	(HEERA) 	section 3571(a) 	and 	(b)1 by
'HEERA	1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	HEERA section 3571 	states, 	in pertinent
part:
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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations rights
guaranteed 	to 	them by 	this 	chapter.
retaliating 	against 	technical 	unit 	employees because 	of 	their
exercise 	of 	the 	right 	to select 	the University Professional 	and
Technical Employees, 	CWA Local 9119, 	AFL-CIO 	(UPTE) 	as their
exclusive 	representative. 	The ALJ also 	found that 	the University
violated HEERA section 3571(a), 	(b) 	and 	(c)2 by unilaterally
refusing 	to 	implement 	a 	salary 	increase plan for 	technical 	unit
employees 	and 	failing 	to meet 	and 	confer with UPTE.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the hearing 	transcript, 	the ALJ's proposed decision and
the 	filings 	of 	the parties. 	The Board finds 	that 	the University
violated HEERA section 3571(a) 	and 	(b) 	by 	interfering with the
right 	of 	technical 	unit 	employees 	to 	select 	an employee
organization 	as 	their 	exclusive 	representative 	and by
discriminating 	against 	technical 	unit 	employees 	for 	their
exercise 	of 	protected 	rights 	by denying 	them a 	salary 	increase 	to
which they were 	entitled. 	The Board 	finds 	that 	the allegation
pertaining to HEERA section 3571 (c) 	is hereby dismissed.
2HEERA section 3571 (c) 	provides that:
Refuse 	or 	fail 	to 	engage 	in meeting and
conferring with 	an 	exclusive 	representative.
22

PROCEDURAL 	BACKGROUND
On December 28, 	1994, 	UPTE 	filed an unfair practice 	charge
against 	the University. 	On March 9, 	1995, 	the PERB General
Counsel's 	office 	issued a 	complaint 	alleging violations 	of 	HEERA
section 3571(a), 	(b) 	and 	(c) 	by the University. 	First, 	the
University's 	August 	and November 	1994 	correspondence 	stating 	that
proposed wage 	increases 	for 	employees 	becoming 	exclusively
represented by January 1, 	1995, 	would be 	subject 	to HEERA
bargaining 	allegedly 	constituted 	interference 	with 	employee
rights 	in violation of HEERA section 3571(a) 	and 	(b). 	Second,
the 	University allegedly 	changed 	its 	policy 	from granting
nonexclusively 	represented 	employees 	salary 	increases 	under 	the
"no 	trigger" 	plan by denying 	the 	retroactive payment 	of 	salary
increases 	to 	employees 	who became 	exclusively 	represented after
the plan's 	effective date, 	without 	affording UPTE with notice 	or
the 	opportunity 	to negotiate. 	This 	conduct 	allegedly constituted
a 	refusal 	to meet 	and 	confer 	in good 	faith 	in violation of 	HEERA
section 3571(c). 	This 	same 	conduct also violated HEERA section
3571(a) 	and 	(b). 	Third, 	the University's refusal to pay
technical unit employees 	the 	"no trigger" 	salary increases, 	after
the 	employees 	exercised their 	right 	to participate 	in a mail
ballot 	election and elect 	an exclusive 	representative, 	allegedly
violated HEERA section 3571(a).
A 	PERB-conducted 	settlement 	conference 	did 	not 	resolve 	the
dispute. 	Following a formal hearing in June 1995, 	a proposed
decision was 	issued January 12, 	1996.
33

FACTUAL 	BACKGROUND
In 1983, 	PERB established a technical 	employee unit at
the University of 	California. 	The 	systemwide unit 	consists 	of
approximately 4,000 	employees 	on nine 	campuses. 	The numerous 	job
titles 	in the unit 	include 	laboratory assistant, 	projectionist,
computer resource specialist, 	interpreter for the deaf, 	artist
and 	editor.
UPTE 	filed a petition 	for 	technical 	unit 	representation
on March 10, 	1994. 	On June 30, 	1994, 	PERB approved a Consent
Election Agreement 	between 	the University and UPTE. 	The
Agreement 	required 	PERB 	to 	conduct 	a mail 	ballot 	election 	to
determine 	if UPTE would exclusively represent 	the unit, 	mail
ballots 	to eligible employees on October 17, 	1994, 	and count
ballots on November 15, 	1994.
Three different 	personnel 	programs 	cover 	technical 	unit
employees. 	Salary 	increase plans 	for employees 	of 	these programs
also differ. 	Approximately 3,500 	employees 	fall 	under 	the 	Staff
Personnel 	Program 	(SPP). 	The SPP salary plan includes 	range
adjustment 	increases, 	merit 	increases, 	and an incentive award
system. 	Another 	100 	employees are 	in the Administrative and
Professional 	Staff 	Program 	(APSP). 	The APSP salary plan provides
for merit 	increases 	and an 	incentive 	award 	system. 	Lawrence
Berkeley 	Laboratory 	(Laboratory) 	employs 	approximately 	400 	unit
employees. 	Laboratory employees 	receive performance-based 	salary
increases 	under United States 	Department 	of 	Energy 	rules.
Each year during 	its budget process, 	the University
44

develops 	a 	systemwide 	salary plan 	for 	the 	next 	fiscal 	year
covering 	employees 	in each personnel 	program. 	Lubbe 	Levin
(Levin), 	assistant vice president 	for Human Resources, 	oversees
the 	development 	of 	the University's 	salary plans. 	The University
develops 	plans 	across 	all 	categories 	of 	staff with different
plans 	for 	nonexclusively 	represented 	and 	exclusively 	represented
employees.
The 	University 	follows 	the 	same 	budget 	and 	salary plan
process each year. 	In December, 	the University gives 	to the
Governor 	its 	proposed budget 	for 	the 	fiscal 	year beginning 	the
following July. 	The Governor 	issues 	his proposed state budget
in January. 	During 	the 	spring and early summer, 	the University
develops 	a number of 	different 	salary plan 	options 	based 	on
different budget 	scenarios. 	The 	state budget 	is usually approved
by 	the 	Legislature 	and 	signed by 	the 	Governor 	in July. 	Following
the 	signing of 	the 	state budget, 	the University 	finalizes 	its
budget 	and salary 	increase plans.
The 	timing and payment 	of 	salary 	increases 	under 	the plans
varies 	depending on the 	funding source. 	The 	federally-funded
Laboratory employees 	receive 	Department 	of 	Energy-mandated 	salary
adjustments 	every October 	I.3 The 	California 	state budget
partially 	funds 	the 	SPP and APSP 	salary plans, 	but 	the 	state
budget 	contains 	no 	specific 	line 	item for University 	salary
3Neither party disputed 	the 	University's 	consistent 	past
practice 	of 	granting annual 	October 	1 	salary increases 	to 	the
Laboratory 	technical 	unit 	employees 	under Department 	of 	Energy
rules. 	These 	technical 	unit 	employees 	received their 	increases
on October 1, 	1994, 	and their award is not at issue 	in this 	case.
55

increases. 	The University's 	salary plans 	determine 	the 	timing
and amounts 	of 	all 	SPP and APSP staff 	salary increases. 	Over the
past 	seven years, 	there has been no 	consistent 	timing of 	salary
adjustments 	for SPP and APSP employees. 	In recent years, 	the
University has 	delayed salary increases, 	split payment 	of
increases under different 	components 	of 	the program, 	paid no
increases, 	and reduced salaries.
In July 	1994, 	the California state budget 	included a
fiscal year 	1994-1995 	increase 	in state general 	funds 	for the
University. 	Companion legislation allowed the 	State 	Controller
to 	"trigger" 	a mid-year state budget 	cut by November 15, 	1994,
if 	the 	state's 	revenues were projected to be 	insufficient 	to meet
expenditures. 	Based on the different budget 	scenarios, 	two final
salary plans 	for nonexclusively 	represented 	SPP 	and APSP
employees were presented 	to 	the Regents 	of 	the University of
California on July 15, 	1994. 	To address 	the possibility of a
mid-year budget 	cut, 	the University developed a 	"trigger" 	plan.
This 	plan 	included only merit 	increases 	for SPP and APSP
employees. 	If there were no mid-year budget cuts, 	the 	"no
trigger" 	plan added salary 	increases. 	The 	salary 	increases
varied 	for each personnel 	program, 	but 	centered around a 	3
percent projected cost 	of 	living adjustment. 	For SPP 	employees,
the plan 	included a 	2.2 	percent 	range 	adjustment 	payable 	in
January 1995, 	retroactive to October 1, 	1994, 	and a
0.8 	percent 	set 	aside 	for 	incentive 	awards 	and half-year merit
increases. 	For APSP employees, 	the plan included up to 3.5
66

percent merit 	increases payable 	in January 1995, 	retroactive 	to
October 1, 	1994, 	and 0.8 percent 	set aside for incentive awards.
Under the 	"no trigger" 	plan, 	the 	incentive and merit 	award
components became 	effective at 	different 	times. 	The APSP merit
awards were retroactive to October 1, 	1994. 	The SPP merit
increases became 	effective January 	1995. 	The APSP and SPP
incentive awards 	became 	effective January or July 	of 	1995
depending on the 	employee's 	award cycle. 	The merit 	and 	incentive
award programs, 	although effective 	in 1995, 	covered fiscal
year 	1993-1994 performance.
Gayle Cieszkiewicz 	(Cieszkiewicz) 	is 	the associate director
of 	the University Office 	of Labor Relations. 	The Office of 	Labor
Relations 	implements 	systemwide 	labor relations 	policies.
Cieszkiewicz 	considered 	the 	salary plans 	to be 	negotiable 	for SPP
and APSP 	technical 	unit 	employees 	if 	they became 	exclusively
represented 	in 	the 	scheduled election. 	Levin and 	Cieszkiewicz
discussed the plans 	in late July 	1994 	in order 	to develop
communications 	for employees and employee 	organizations. 	On
August 10, 	1994, 	the University sent out a notice to all unions,
including UPTE, 	and employees. 	The notice outlined the 	"trigger"
and 	"no 	trigger" 	salary plans. 	The University noted that 	the
State 	Controller would make 	the 	announcement 	that 	could 	trigger
mid-year state budget 	cuts by November 15, 	1994. 	The notice also
included 	the 	following 	language:
Proposed wages 	for staff 	employees 	who are
currently 	exclusively 	represented 	or who
become 	exclusively 	represented 	by 	January
77

1995 	are 	subject 	to meeting 	and 	conferring
under 	HEERA.
Cieszkiewicz 	testified that 	the University was 	aware 	that 	the
only 	nonexclusively 	represented 	employees 	who 	could become
exclusively 	represented by January 	1995 	were 	technical 	unit
employees.
Levin developed a 	similar model 	salary plan 	communication 	to
notice 	employees. 	The University Office 	of 	Human Resources 	sent
that model 	to human 	resources 	directors 	on each campus. 	Based on
that model, 	the 	campuses prepared and sent a notice 	to all 	staff
employees. 	The notice outlined the 	"trigger" 	and 	"no trigger"
plans. 	The 	notice 	included the 	following 	language:
The proposal 	is also subject 	to notice,
consultation, 	and/or meeting and conferring
as 	appropriate under 	the 	Higher Education
Employer-Employee Relations Act 	(HEERA).
Cieszkiewicz 	oversaw 	the 	University's 	election 	campaign.
The University conducted its 	campaign 	from August 	1994 	to
November 15, 	1994. 	Cieszkiewicz developed and distributed
to the 	campuses a series 	of 	30 model 	flyers 	expressing the
University's 	position 	that 	exclusive 	representation 	is
unnecessary within 	the University 	setting. 	The 	flyers 	concerned
a variety of 	issues, 	including: 	why employees 	should vote,
information about union dues, 	decertification, 	election of union
officers, 	technical unit titles eligible to vote, 	agency shop,
strikes, 	and the 	influence of 	the Communication Workers 	of
America on local 	union policies.
88

The University of California, 	Los Angeles 	(UCLA) 	created
additional 	election materials 	beyond 	the 	systemwide 	approved
campaign materials. 	Approximately one-fifth of 	all 	technical
unit members work on the UCLA campus. 	Cieszkiewicz approved a
letter 	sent 	from UCLA Assistant 	Vice 	Chancellor 	Stanley McKnight
to UCLA technical 	unit employees 	on November 9, 	1994. 	The 	letter
noted 	that 	the 	state would apparently not 	pull 	the 	trigger and
salary 	increases would be 	forthcoming. 	The 	letter advised
technical 	unit 	employees 	that 	"receipt 	of 	this 	anticipated 	salary
increase would become 	dependent 	on 	the process 	of 	contract
negotiations, 	if CWA/UPTE wins 	the election which is being
conducted at 	this 	time."
The mail ballot 	listed two choices: 	"UPTE-CWA 9119" 	and 	"No
Representation." 	PERB counted the mail 	ballots 	on November 	15,
1994. 	UPTE 	received 1,215 	of 	the 2,207 votes 	cast. 	Neither
party filed objections to the election. 	On December 1, 	1994,
PERB 	certified UPTE as 	the 	exclusive 	representative 	for 	the
technical 	employees unit.
The University learned that 	the 	state would not pull 	the
trigger, 	and would fully fund the University's 	fiscal year 1994-
1995 budget, 	in early November. 	On November 18, 	1994, 	the Office
of 	Labor Relations 	sent 	a notice 	to UPTE and employees 	stating
that 	the 	University would proceed 	to 	implement 	the 	"no 	trigger"
plan 	for 	nonexclusively 	represented 	SPP 	and APSP 	employees.
While the increase was retroactive to October 1, 	1994, 	the
University 	indicated 	that 	it 	would be unable 	to pay 	the 	increases
99

until 	February 	1995. 	However, 	the notice 	stated that 	"following
PERB 	certification of UPTE/CWA as 	the 	exclusive 	representative 	of
SPP & A&PS 	[APSP] 	covered employees 	in the Technical Unit, 	wages
for Technical 	Unit 	employees 	would be 	subject 	to negotiations
under 	HEERA between 	the 	University 	and UPTE/CWA."
On December 6, 	1994, 	Cieszkiewicz notified Libby Sayre
(Sayre), 	UPTE president, 	that she would negotiate the initial
round of bargaining over wages, 	hours, 	and working conditions
for technical 	unit 	employees. 	Cieszkiewicz 	expressed the
University's 	position that 	salary 	increases 	for SPP and
APSP 	technical 	unit 	employees 	were 	subject 	to bargaining between
the University and UPTE. 	Sayre argued that 	technical 	unit
employees 	should 	receive 	the 	increase 	automatically because 	UPTE
was not the exclusive representative on October 1, 	1994.
Cieszkiewicz 	agreed to discuss 	UPTE's 	position with 	the
Human Resources Advisory Committee 	(HRAC) 	on December 14, 	1994.
HRAC 	is 	the 	systemwide 	labor 	relations policy 	committee 	chaired
by Levin. 	On December 16, 	1994, 	Cieszkiewicz 	told Sayre that
HRAC had decided that 	the 	salary increases 	were bargainable.
Following a 	telephone 	conversation on January 13, 	1995,
Cieszkiewicz 	wrote 	Sayre 	a 	letter 	confirming 	that 	the 	SPP and
APSP 	incentive 	awards 	programs 	for UPTE-represented 	technical
unit 	employees 	were 	also 	on hold pending negotiations 	with UPTE.
In January and February 	1995, 	nonexclusively represented SPP
and APSP 	employees 	began 	receiving 	their 	"no 	trigger" 	plan 	salary
adjustments. 	Nonexclusively represented SPP 	employees 	received a
10

separate 	check 	for 	the payment 	of 	range 	adjustments 	retroactive
to October 1, 	1994. 	Nonexclusively represented APSP employees
awarded merit 	increases 	also 	received a 	separate 	check 	for
payment 	of merit 	increases 	retroactive to October 1, 	1994.
Technical 	unit 	SPP 	and APSP 	employees 	received no 	salary
adjustments.
POSITIONS 	OF THE 	PARTIES
UPTE's 	Position
UPTE 	contends 	that 	the University's August 	and November 	1994
communications 	threatened 	technical 	unit 	employees 	with 	the
withholding 	of 	salary 	increases 	in 	the 	event 	employees 	selected
UPTE as 	their exclusive 	representative. 	These 	communications
interfered with employee 	free 	choice 	in 	the 	representation
election in violation of HEERA section 3571(a) 	and 	(b).
Although 	PERB 	counted 	election ballots 	on November 	15,
1994, 	UPTE argues 	it became empowered to act as 	the exclusive
representative 	for 	technical 	unit 	employees 	only after 	PERB
certification on December 1, 	1994. 	As a nonexclusive
representative prior to December 1, 	1994, 	UPTE had no right, 	and
the University had no duty, 	to negotiate 	over technical 	unit
employees' 	terms and conditions of employment. 	(Regents of the
University of California 	(1984) 	PERB Decision No. 	470-H; 	Regents
of 	the University of 	California v. 	Public 	Employment 	Relations
Bd. 	(1985) 	168 Cal.App.3d 937 	[214 Cal.Rptr. 	698].)
UPTE asserts 	that 	the 	"no trigger" 	plan was 	effective and
fully funded by November 15, 	1994. 	Regardless of when the
11

specific 	components 	of 	the 	separate plans 	were actually paid, 	by
November 15, 	1994, 	the elements of the plan were funded and
became a permanent 	element 	of 	the University's 	salary plans 	for
fiscal year 1994-1995. 	While 	the 	timing of 	the 	implementation of
the 	"no 	trigger" 	plan fell within the discretion of 	the
University, 	the parameters 	of 	the plan never changed after July
1994.
UPTE 	argues 	that 	the 	University violated HEERA
section 3571(a), 	(b) 	and 	(c) 	when it unilaterally changed the
status 	quo by withholding 	the 	salary 	increase 	from technical 	unit
employees because: 	(1) 	the University altered its own wage
benefit 	policy by withholding 	the 	increase 	from certain
nonexclusively 	represented employees 	and granting 	it 	to all 	other
similarly situated nonexclusively represented employees; 	(2) 	the
change 	in the 	status 	quo deprived technical 	unit 	employees 	of 	the
right 	to bargain over the 	change 	through their exclusive
representative after certification of UPTE; 	(3) 	the change had a
generalized 	effect 	and 	continuing 	impact 	on 	technical 	unit
employees; 	and 	(4) 	the change 	involved a matter within the 	scope
of 	representation. 	(Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51; 	Grant Joint Union High School District
(1982) 	PERB Decision No. 	196.)
UPTE 	asserts 	that 	the 	fact 	that 	the University would grant
the 	salary 	increase 	to 	technical 	unit 	employees 	during 	the
representation election period 	is 	irrelevant. 	The 	employer may
lawfully 	grant 	employees 	involved 	in 	a 	representation 	election
12

wage 	increases 	already promised, 	or provided uniformly 	to a 	group
of 	employees 	that 	includes 	bargaining unit 	employees. 	(McCulloch
Corporation 	(1961) 	132 NLRB 201 	[48 LRRM 1344]; 	Cutter Boats.
Inc. 	(1960) 	127 NLRB 1576 	[46 LRRM 1246]; 	Insulating Fabricators.
Inc. 	(1963) 	144 NLRB 1325 	[54 LRRM 1246] 	enf. 	(4th Cir. 	1964)
338 F.2d 1002 	[57 LRRM 2606]; 	"M" 	System. 	Inc. 	(1960)
129 	NLRB 	527 	[47 LRRM 1017].)
Finally, 	UPTE argues 	that, 	having failed in its 	efforts 	to
improperly influence 	the 	outcome 	of 	the 	representation election,
the 	University violated HEERA section 	3571(a) 	by 	carrying
through 	on 	its 	threat 	to withhold 	salary 	increases 	from technical
unit 	employees 	in 	retaliation 	for 	their 	selection of 	UPTE 	as
their 	exclusive 	representative.
UPTE 	seeks a make whole 	remedy in this 	case, 	consisting of
full payment, 	with interest, 	of all 	"no trigger" 	plan salary
increases 	and 	compensation benefits 	that 	the University
unlawfully denied technical 	unit 	employees; 	and a PERB 	order
directing 	the University 	to 	cease 	and desist 	from its 	unlawful
conduct.
The 	University's 	Position
The 	University 	contends 	that 	it 	had a duty 	to notify
nonexclusively 	represented 	employees 	of 	potential 	changes 	in
terms 	and conditions 	of 	employment. 	The University asserts 	that
it 	consistently advised employees 	that, 	for 	those who become
exclusively 	represented by January 	1995, 	salary 	increases 	would
be 	subject 	to HEERA negotiations. 	This 	caveat was 	included 	in
13

its 	communications with employees 	about 	the 	salary plans, 	and was
itself a component 	of the 	"no trigger" 	salary plan. 	Thus, 	the
allegation that 	the 	"no 	trigger" 	plan became a benefit 	to
nonexclusively 	represented 	technical 	unit 	employees 	when 	it 	was
announced in August, 	or on the effective date of 	retroactive
payment, 	October 1, 	1994, 	or when it became known that the
trigger would not be pulled on November 15, 	1994, 	is 	simply
wrong. 	Staff 	employees who were exclusively represented, 	or
became 	exclusively 	represented by January 	1995, 	were 	specifically
and 	consistently apprised 	in 	"no 	trigger" 	plan descriptions 	that
their 	salary 	increases 	would be 	subject 	to 	HEERA meeting and
conferring because 	no 	increases 	would be 	paid 	to any 	employees
before January 	1995.
The University pointed 	out 	its 	obligation to bargain over
any salary increase 	in its August 	10, 	1994, 	notice to employees
to avoid making a promise 	of 	future benefits 	during 	the 	election
period. 	These 	statements were not 	threats but 	accurate and
truthful 	statements 	reflecting 	the University's 	obligation 	to
bargain. 	Since 	its 	communications 	consistently and 	correctly
acknowledged 	the University's 	duty 	to bargain over 	the 	salary
plan with 	employees 	who were 	exclusively 	represented prior 	to 	its
implementation 	in January, 	the University argues 	that 	its
communications 	with 	its 	employees 	concerning 	the 	salary plans
constitute 	protected 	speech under HEERA section 3571.3.4
4HEERA section 	3571.3 	states:
14

The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, 	printed, 	graphic, 	or
visual 	form, 	shall not constitute, 	or be
evidence of, 	an unfair labor practice under
any provision of 	this 	chapter, 	unless 	such
expression contains 	a 	threat 	of 	reprisal,
force, 	or promise of benefit; 	provided,
however, 	that 	the 	employer shall 	not 	express
a preference 	for 	one 	employee 	organization
over another employee 	organization.
The 	University also points 	to 	the 	employer's 	unique
obligations 	during 	the pre-election period. 	The 	employer must
grant 	benefits 	that 	would have been granted 	in 	the 	normal 	course
of business. 	(San Ramon Valley Unified School 	District 	(1979)
PERB Decision No. 	111.) 	However, 	the employer may not promise or
grant benefits 	if 	that promise or grant 	is 	intended to 	interfere
with the 	employee's 	organizational 	rights. 	(NLRB v. 	Exchange
Parts Company 	(1964) 	375 U.S. 	405 	[55 LRRM 2098].) 	The
University 	contends 	that 	an 	employer may grant 	a 	salary 	increase
during an 	election period 	only when 	the 	employer has 	a past
practice 	of granting salary increases. 	Those 	increases are part
of 	the 	status 	quo and must 	be 	implemented during 	the 	election
period. 	(Davis Unified School District 	(1980) 	PERB Decision
No. 	116.) 	Since 	the University had no consistent past practice
of 	granting wage 	increases, 	it 	could not 	lawfully promise a
salary increase 	to 	technical 	unit 	employees 	during the 	election
campaign. 	Similarly, 	since 	the University had no established
past 	practice 	of 	granting 	salary 	increases 	for 	technical 	unit
employees, 	the University's 	failure 	to do so did not 	constitute a
15

unilateral 	change 	and refusal 	to bargain 	in violation 	of 	HEERA
section 3571(c).
The 	University argues 	that 	it 	was 	prohibited 	from changing
the wage 	rates during the November 15 	to December 1 post-
election, 	precertification period. 	(Mike 	O'Connor Chevrolet
(1974) 	209 NLRB 701 	[85 LRRM 1419] 	enf. 	denied on other grounds
(8th Cir. 	1975) 	512 	F.2d 684 	[88 LRRM 3121].) 	In addition, 	once
PERB 	certified UPTE 	as 	the 	exclusive 	representative 	on December
1, 	1994, 	the University was obligated to bargain over wages
because 	they are a mandatory subject 	of bargaining. 	Since wages
are a mandatory subject 	of bargaining, 	the University did not
discriminate 	against 	technical 	unit 	employees 	in violation of
HEERA section 3571(a) 	and 	(b) 	by failing to implement 	the 	"no
trigger" 	plan for technical unit 	employees.
DISCUSSION
HEERA's 	fundamental 	purpose 	is 	to provide 	employees 	of
California's 	public 	higher 	education 	systems 	with 	the 	right 	to
participate 	in 	employee 	organizations 	and 	select 	an 	exclusive
representative 	for 	the purpose 	of 	representation 	in 	their
employment 	relationships 	with 	their employers.5 HEERA
5HEERA section 3560(e) 	states:
(e) 	It 	is 	the purpose of 	this 	chapter
to provide 	the means 	by which relations
between 	each higher 	education 	employer
and 	its 	employees may assure 	that 	the
responsibilities 	and 	authorities 	granted
to 	the 	separate 	institutions under the
Constitution and by 	statute 	are 	carried
out 	in an atmosphere 	which permits 	the
fullest 	participation by 	employees 	in 	the
16

determination of 	conditions 	of 	employment
which affect 	them. 	It 	is 	the 	intent 	of
this 	chapter to accomplish 	this 	purpose by
providing 	a uniform basis 	for 	recognizing
the 	right 	of 	the 	employees 	of 	these 	systems
to full 	freedom of association, 	self-
organization, 	and designation of
representatives 	of 	their own 	choosing 	for 	the
purpose 	of 	representation 	in 	their employment
relationships 	with 	their 	employers 	and 	to
select 	one 	of 	these 	organizations 	as 	their
exclusive 	representative 	for 	the purpose 	of
meeting 	and 	conferring.
section 3562 (j) 	defines exclusive representative as 	"any-
recognized 	or 	certified 	employee 	organization." 	The 	higher
education employer may 	"recognize" 	an employee 	organization as
the 	exclusive 	representative 	or 	PERB may 	"certify" 	an 	employee
organization as 	the 	exclusive 	representative based 	on 	the 	results
of 	a 	representation election.6 PERB Regulation 	32750 	provides
6HEERA section 3562(p) 	states:
"Recognized 	organization" 	means
an 	employee 	organization which has 	been
recognized by an 	employer 	as 	the 	exclusive
representative 	of 	the 	employees 	in an
appropriate unit pursuant 	to Article 	5
(commencing with Section 3573).
HEERA section 3577(a) 	states, 	in pertinent part:
Upon 	receipt 	of 	a petition 	filed pursuant
to Section 	3575 	the board shall 	conduct 	such
inquiries 	and 	investigations 	or hold 	such
hearings 	as 	it 	shall 	deem necessary 	in order
to decide 	the 	questions 	raised by the
petition. 	The determination of 	the board may
be based upon 	the 	evidence 	adduced in the
inquiries, 	investigations, 	or hearings. 	If
the board 	finds 	on the basis 	of 	the 	evidence
that a question of 	representation exists, 	or
a question of 	representation 	is 	deemed 	to
exist pursuant to subdivision 	(a) 	or 	(b) 	of
Section 3574, 	it 	shall 	order that an election
shall 	be 	conducted by 	secret 	ballot 	placing
17

on 	the ballot 	all 	employee 	organizations
evidencing support 	of 	at 	least 	10 percent 	of
the members 	of an appropriate unit, 	and it
shall 	certify the 	results 	of 	the 	election on
the basis 	of which ballot 	choice 	received a
majority of 	the valid votes 	cast.
that 	"the Board shall 	certify the 	results 	of 	the 	election or
issue 	a 	certification of 	an exclusive 	representative 	if 	the
results 	of 	the 	election are 	conclusive 	and no 	timely objections
are filed. "7
The 	HEERA statutory 	scheme 	specifically defines 	the
employer's 	bargaining obligation. 	The higher education employer
must 	meet 	and 	confer with 	the 	employee 	organization 	selected 	as
the 	exclusive 	representative 	of 	a bargaining unit.8 However,
under HEERA, 	the nonexclusive 	employee 	organization has 	no
independent 	right 	to represent 	its members, 	and the higher
education employer has 	no duty 	to meet 	and 	confer with a
nonexclusive 	employee 	organization, 	on matters 	within the 	scope
of 	representation. 	(Regents 	of 	the University of 	California v.
Public Employment Relations Board, 	supra. 	168 	Cal.App.3d 937.)
7PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
8HEERA section 3570 	states:
Higher education employers, 	or such
representatives as 	they may designate, 	shall
engage 	in meeting 	and 	conferring with 	the
employee 	organization 	selected as 	exclusive
representative 	of 	an appropriate unit 	on all
matters within the 	scope 	of 	representation.
18

It 	is 	important 	to 	take note 	of 	these 	fundamental 	features
of 	HEERA in 	considering 	the 	rights 	and obligations 	of 	the
employer, 	employees 	and the 	exclusive 	representative 	during 	the
time 	employees 	first become 	exclusively represented. 	It 	is 	in
this period of 	a 	PERB-conducted representation election, 	and the
subsequent 	transition 	from no 	representation 	to 	exclusive
representation, 	that 	the alleged unlawful 	conduct 	in this 	case
occurred.
Technical 	unit 	employees 	were 	nonexclusively 	represented
prior to December 1, 	1994. 	PERB conducted the tally of mail
ballots 	on November 15, 	1994. 	Neither the University nor UPTE
filed objections 	to 	the 	election. 	PERB 	certified UPTE as 	the
exclusive 	representative 	of 	the 	technical 	employee unit 	on
December 1, 	1994. 	Prior to December 1, 	1994, 	therefore, 	the
University had no HEERA obligation 	to meet 	and 	confer 	over 	terms
and 	conditions 	of 	employment 	affecting 	technical 	unit 	employees.
Similarly, 	UPTE 	had no 	independent 	right 	to 	exclusively 	represent
technical unit employees prior to December 1, 	1994.10
The 	specific 	timing 	of 	UPTE's 	exclusive 	representation 	is
particularly 	important 	in 	this 	case 	due 	to 	the 	close proximity of
the 	election events 	to the University's 	decision to 	implement 	the
"no 	trigger" 	salary plan 	for non-exclusively represented
10The University's 	assertion 	that 	technical 	unit 	employees
"were no longer non-represented" 	after the November 15, 	1994,
tally of ballots 	contradicts 	its 	own communications. 	The
November 18, 	1994 	correspondence 	from the University's Acting
Coordinator 	of 	Labor Relations 	to 	the UPTE 	President 	correctly
notes 	that UPTE 	had not 	yet 	been 	certified by 	PERB as 	the
exclusive 	representative.
19

employees. 	In a November 18, 	1994, 	letter to the UPTE President,
a 	University 	representative 	stated:
. 	. 	. 	the University will proceed with the
'No Trigger' 	Plan . 	. 	. 	for non-exclusively
represented SPP- 	and A&PS-covered 	[APSP]
staff 	employees.
The 	letter 	further 	stated:
. 	. 	. 	the increases for non-exclusively
represented SPP- 	and A&PS-covere	- 	d 	[APSP]
employees 	. 	. 	. 	continue to be retroactive
to October 	1, 	1994 	. . . .
These 	statements 	clearly indicate that by November 18, 	1994, 	the
University had made 	the 	decision to 	implement 	the 	"no 	trigger"
salary plan 	for nonexclusively represented employees. 	The 	same
letter 	reiterated 	the 	retroactivity 	of 	the 	salary 	increases 	but
noted some delay 	in 	their actual payment. 	As 	noted above,
technical 	unit 	employees 	were 	nonexclusively 	represented 	on
November 18, 	1994.
The 	University asserts 	that 	the 	salary plan was 	not 	in
effect until 	January or a 	later date when 	salary 	increases 	were
actually paid. 	This assertion is without merit. 	It 	is 	common
practice 	for an employee 	salary package 	to 	consist 	of multiple
components 	that 	the 	employer implements at different 	times. 	The
effectiveness 	of 	such a plan and 	its 	components 	does 	not 	occur on
the actual date of payment 	of 	each component, 	whenever that might
occur. 	For nonexclusively represented employees, 	a multiple
component 	salary program is 	"in effect" 	when it 	is 	clear that 	the
employer has 	decided 	to 	implement 	the program for 	those
employees.
20

The University's November 18, 	1994, 	letter unequivocally
states 	that 	it 	is proceeding with the 	"no trigger" 	salary plan
for nonexclusively represented employees, 	regardless 	of 	the
subsequent 	timing 	of 	the actual payment 	of 	its various
components. 	By that date, 	therefore, 	it 	is clear that the salary
plan was 	in effect 	for nonexclusively represented 	employees.
Technical 	unit 	employees 	were 	nonexclusively 	represented 	on
November 18, 	1994. 	Therefore, 	the 	"no trigger" 	salary plan was
in effect 	for technical unit 	employees 	on November 18, 	1994.
We now turn to 	the 	specific allegations 	in this 	case.
First, 	UPTE 	alleges 	that 	the University 	interfered with
employees' 	right 	to 	freely choose an exclusive representative,
and violated HEERA section 3571(a) 	and 	(b), 	by stating in its
August 	and November 	1994 	correspondence 	that 	it 	would not 	grant
proposed wage 	increases 	to 	employees 	who became 	exclusively
represented by January 1, 	1995.
In Carlsbad Unified School 	District 	(1979) 	PERB Decision
No. 	89, 	the Board established its 	test 	for evaluating allegations
of unlawful 	employer interference. 	Under this 	test, 	the 	charging
party must 	show that 	the 	employer's 	conduct 	tends 	to or does
result 	in harm to protected employee 	rights. 	The 	employer 	then
has 	the burden of 	demonstrating 	operational 	necessity or
circumstances 	beyond 	the 	employer's 	control 	as 	justification 	for
the 	conduct. 	Proof 	of unlawful motivation or actual 	harm to
employee 	rights 	is not 	required in interference 	cases. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210.)
21

Technical 	unit 	employees 	possessed 	the protected 	right 	to
participate 	in 	the 	selection of UPTE as 	their exclusive
representative. 	HEERA section 3565 	gives 	higher education
employees 	the 	right 	to 	"form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of 	their own 	choosing 	for
the purpose 	of 	representation on all 	matters 	of 	employer-employee
relations." 	An employer's 	conduct 	that 	impedes 	the 	employees'
right 	to 	freely 	choose a 	representative may 	form the basis 	for an
unfair practice 	charge. 	(Clovis Unified School District 	(1984)
PERB Decision No. 	389.)
The 	Board 	considered 	the 	effect 	of 	employer 	speech on 	the
employees' 	right 	to 	choose an exclusive 	representative 	in Office
of 	Kern County Superintendent 	of 	Schools 	(1985) 	PERB Decision
No. 	533. 	In that case, 	the Superintendent of Schools
(superintendent) 	made 	speeches 	to all 	employees 	of 	the district
prior to a decertification election. 	The 	superintendent 	stated
that 	support 	for 	the 	incumbent 	union would 	result 	in an automatic
decline 	in benefits 	to employees 	irrespective 	of 	the 	employer's
ability to provide 	the 	same 	level 	of benefits. 	The Board found
that 	the 	superintendent's 	conditioning a 	continuation of benefits
on the waiver of 	the 	employee's 	right 	to 	select 	an exclusive
representative 	interfered with 	the 	employee's 	right 	to 	join and
participate 	in employee 	organizations. 	Once 	the 	superintendent
began describing 	the 	consequences 	of 	an association victory which
did not 	flow naturally 	from the 	collective 	bargaining
22

relationship, 	and prevention was within the employer's power, 	his
speech lost 	its protection.
The University 	contends 	that 	its 	statements 	during 	the
election 	campaign were protected 	truthful 	statements 	reflecting
the University's 	obligation to bargain. 	HEERA section 3571.3
states that an employer's expression of views, 	arguments, 	or
opinions 	may not 	constitute 	evidence 	of 	an unfair 	labor practice
unless 	the expression contains a threat of 	reprisal, 	force, 	or
promise 	of benefit.11 PERB applies 	an objective 	standard 	to
determine 	if 	the 	employer's 	speech contains 	a 	threat 	or promise
of benefit. 	(California State University 	(1989) 	PERB Decision
No. 	777-H.) 	The Board views 	the employer's 	statements 	in light
of 	the 	surrounding 	circumstances 	and places 	considerable weight
on the accuracy of 	the 	content 	of 	the 	speech. 	(Los Angeles
Unified School District 	(1988) 	PERB Decision No. 	659; 	Alhambra
City and High School Districts 	(1986) 	PERB Decision No. 	560;
Chula Vista City School District 	(1990) 	PERB Decision No. 	834.)
11The HEERA language parallels 	language 	in National 	Labor
Relations Act section 8(c). 	PERB looks 	to National 	Labor
Relations 	Board precedent 	in 	cases 	involving employer 	free
speech rights. 	(Rio Hondo Community College District 	(1980) 	PERB
Decision No. 	128.) 	In NLRB v. 	Gissel Packing Co. 	(1969) 	395 U.S.
575 	[71 LRRM 2481], 	the U.S. 	Supreme Court made a distinction
between permissible 	preelection predictions 	and unlawful 	threats
of 	reprisal. 	The 	court balanced the employer's 	right 	of 	free
speech against 	the 	rights 	of 	employees 	to be 	free 	from coercion,
restraint 	and 	interference. 	The 	First Amendment protects
employer predictions 	based on 	objective 	fact 	that 	convey 	the
reasonable 	likely 	economic 	consequences 	of 	unionization 	outside
the employer's 	control. 	However, 	threats of economic reprisal
taken 	solely on 	the 	employer's 	own volition 	fall 	outside 	free
speech protection.
23

The University's August 	1994 	notices 	to unions 	and employees
asserted 	that 	salary 	increases 	for 	employees 	becoming 	exclusively
represented by January 	1995 	would be 	subject 	to 	HEERA meeting and
conferring. 	UCLA's November 	1994 	letter 	to one-fifth of 	the
technical 	unit 	employees 	stated 	that 	the 	receipt 	of 	a 	forthcoming
salary 	increase 	depended on 	contract 	negotiations 	if 	UPTE won 	the
election. 	The 	letter emphasized 	that 	negotiations 	would only
occur 	if 	employees 	elected UPTE as 	their 	exclusive
representative.
As 	noted above, 	these 	statements 	do not accurately describe
the 	applicability of 	the 	salary plans 	to 	technical 	unit 	employees
or the parties' 	HEERA bargaining rights and obligations. 	It 	is
irrelevant 	whether 	the University's 	statements 	were 	consistent,
or based 	on 	its 	good 	faith understanding 	of 	its 	HEERA bargaining
obligation. 	The 	statements were nonetheless 	inaccurate.
Furthermore, 	the University knew the 	close proximity of
election 	events 	to 	the dates 	critical 	to 	salary plan
implementation at 	the 	time 	these 	statements were made. 	In August
1994, 	the University was aware that by November 15 	the State
Controller would make 	the 	announcement 	that 	would determine 	which
salary program would go 	into 	effect. 	The University was 	also
aware 	that, 	under the Consent Election Agreement, 	PERB would
tally ballots 	in 	the 	representation election on November 	15,
1994. 	Therefore, 	it was clear that, 	pursuant to its regulations,
PERB would not 	certify an 	exclusive 	representative 	before 	the
24

date 	of 	the Controller's 	announcement.12 Despite 	this knowledge,
the University definitively 	stated 	in 	its 	August 	communication
that 	the 	described salary 	increases would not be granted, 	and
HEERA negotiations 	would be 	required, 	for 	those 	employees
becoming 	exclusively 	represented by January 	1995.
The November 9, 	1994, 	correspondence 	to UCLA technical unit
employees 	is 	particularly troubling. 	The 	letter asserts 	that
"staff 	pay 	increases 	should be 	forthcoming," 	but 	specifically
states 	that 	technical 	unit 	employees will 	not 	receive 	the
increases 	if 	UPTE 	"wins 	the 	election which is 	being 	conducted at
this 	time." 	The 	letter 	clearly communicates 	that 	the University
knew prior to 	the 	completion of 	the 	election that 	the 	trigger
would not 	be pulled and 	that 	it 	would 	implement 	the 	"no 	trigger"
plan. 	However, 	the University continued to assert 	that HEERA
would 	require 	technical 	unit 	employees' 	salary 	increases 	to be
bargained 	if 	they 	elected an 	exclusive 	representative.
During 	the pre-election period, 	the University 	inaccurately
informed 	technical 	unit 	employees 	that 	if UPTE became 	their
exclusive representative before January 1, 	1995, 	any salary
increase 	depended 	on 	the 	outcome 	of 	bargaining. 	UCLA directly
informed 	employees 	that 	they would not 	receive 	a 	specific 	salary
increase, 	which would otherwise be 	forthcoming, 	if 	they elected
UPTE as 	their exclusive 	representative. 	Since 	the University
12PERB Regulation 32738 	gives 	a party 	10 	days 	following 	the
service of 	the 	tally of ballots 	to 	file election objections, 	and
PERB Regulation 32750 	directs 	PERB 	to 	certify the 	election 	"if
the results 	of 	the election are 	conclusive, 	and no timely
objections 	are 	filed."
25

possessed no HEERA obligation, 	and UPTE possessed no right, 	to
meet 	and 	confer over 	the 	subject 	of 	salary 	increases 	on 	the 	date
the 	"no trigger" 	plan was 	in effect 	for technical 	employees, 	the
University's 	speech described 	consequences 	of 	a union victory
which 	did not 	flow naturally 	from the 	collective 	bargaining
relationship and were totally within the 	employer's 	control. 	In
effect, 	the 	speech contained a 	threat 	of 	reprisal 	and had no
protection under HEERA section 	3571.3. 	The University's
unprotected 	communications 	conditioning 	receipt 	of 	the 	"no
trigger" 	salary 	increase 	on employees 	not 	electing an 	exclusive
representative violated HEERA section 3571(a) 	and 	(b) 	by
interfering with 	their right 	to participate 	in an 	election 	to
choose 	an exclusive 	representative.13
UPTE's 	second allegation 	is 	that 	the University violated
HEERA section 3571(a), 	(b) 	and 	(c) 	by unilaterally changing its
policy regarding 	"no 	trigger" 	salary 	increases 	for technical 	unit
employees 	who became 	exclusively 	represented and 	failing 	to meet
and 	confer 	in good 	faith 	over 	the 	change. 	An employer's
unilateral 	change 	in a matter within 	the 	scope 	of 	representation
is 	a per 	se violation of 	the 	duty to meet 	and confer 	in good
faith. 	To establish a unilateral 	change, 	the charging party must
show: 	(1) 	the employer changed a past practice; 	(2) 	the employer
13The Board notes 	that 	during 	the 	campaign the Office 	of
Labor Relations distributed 3 0 model 	flyers 	expressing the
University's 	nonunion preference. 	None 	of 	the 	flyers 	contained a
threat 	of 	reprisal 	or promise 	of benefit. 	As an expression of
the University's 	opinion, 	this 	speech falls under the protection
of 	HEERA section 3571.3.
26

changed 	the practice 	in a manner 	that 	has 	a generalized 	effect 	or
continuing impact 	on the members of 	the bargaining unit; 	(3) 	the
change 	in policy 	involves 	a matter within the 	scope 	of
representation; 	and 	(4) 	the employer made the change without
giving 	the 	exclusive 	representative 	notice 	or an 	opportunity 	to
bargain. 	(Grant Joint Union High School District, 	supra. 	PERB
Decision No. 	196.)
Until December 1, 	1994, 	UPTE was a nonexclusive employee
organization, 	not 	the 	certified exclusive 	representative 	for
technical unit employees. 	The November 18, 	1994, 	notice from the
University 	clearly 	indicates 	that 	technical 	unit 	employees 	would
be 	excluded 	from the 	"no 	trigger" 	salary plan. 	The University
had no duty 	to meet 	and 	confer with 	the 	nonexclusive
representative 	on the date 	it made 	that unilateral 	decision.
(See Regents 	of 	the University of 	California v. 	Public 	Employment
Relations Board, 	supra. 	168 Cal.App.3d 937.) 	Since the
University possessed no 	duty 	to meet 	and 	confer with UPTE 	over
the salary plan prior to December 1, 	1994, 	its November 18, 	1994,
denial 	of 	the 	"no 	trigger" 	salary plan to 	technical 	unit
employees 	does 	not 	constitute a unilateral 	change 	in violation of
HEERA.
However, 	the University's denial 	of 	the 	"no trigger" 	salary
plan to 	technical 	unit 	employees 	also 	relates 	to UPTE's 	third
allegation, 	that 	the University's denial 	constitutes
discrimination in violation of HEERA section 3571(a). 	HEERA
prohibits 	employer discrimination against 	employees 	due 	to 	the
27

exercise 	of 	their protected rights. 	To 	establish a
discrimination violation, 	the 	charging party must 	show that 	the
employee 	engaged 	in a protected activity, 	that 	the 	employer knew
of 	the activity, 	and that 	the 	employee's participation motivated
the 	employer's 	adverse action. 	(Novato Unified School 	District,
supra. 	PERB Decision No. 	210.)
- -
Technical 	unit 	employees 	possess 	the protected right 	to
participate 	in a 	PERB 	conducted 	representation 	election 	to
determine 	an 	exclusive 	representative 	in their bargaining unit.
It 	is undisputed that 	the University was 	aware 	of 	this protected
activity. 	It 	is also clear that denial 	of a salary increase 	to
employees 	who are 	entitled to 	that 	increase 	constitutes 	action
adverse 	to those employees. 	The Board must determine 	if 	the
technical unit 	employees' 	participation in the UPTE
representation 	election motivated 	the 	University's 	action.
PERB 	requires a 	specific nexus 	of unlawful motive between
the 	employer's 	adverse action and the 	employee activity. 	PERB
may draw an 	inference 	of 	unlawful motivation 	from the 	timing 	of
the 	employer's 	conduct 	in relation to 	the protected activity, 	the
employer's 	disparate 	treatment 	of 	employees 	engaged 	in protected
activities, 	the 	employer's 	departure 	from established procedures
and standards 	for those 	employees, 	and the 	employer's
inconsistent 	or 	contradictory 	justifications. 	PERB may make 	this
inference 	from circumstantial 	evidence and 	the 	record as 	a whole.
(Novato Unified School District, 	supra, 	PERB Decision No. 	210.)
28

Here, 	it 	is unnecessary to infer the University's
motivation. 	The November 18, 	1994, 	notice states that the
University would not 	implement 	the 	"no 	trigger" 	salary 	increase
for members 	of 	the 	technical 	unit 	because 	they elected UPTE 	as
their exclusive 	representative. 	By the University's 	own
admission, 	therefore, 	this adverse action is the direct result of
the technical unit employees' 	protected conduct. 	Therefore, 	the
University's 	action 	constitutes 	unlawful 	discrimination against
technical unit 	employees 	in violation of HEERA section 3571(a).
By the 	same 	conduct, 	the University denied UPTE 	its 	guaranteed
rights in violation of section 3571(b).
As 	justification for its action, 	the University points 	to
the 	employer's 	unique 	obligations 	during 	the period 	in which
employees 	are 	choosing 	to become 	exclusively 	represented 	in 	their
employment 	relations. 	It 	is 	important 	to note 	that 	those
obligations must be 	consistent with the 	fundamental 	purpose 	of
HEERA. 	HEERA section 3560(a) 	states:
The people 	of 	the 	State 	of 	California have a
fundamental 	interest 	in the development 	of
harmonious 	and 	cooperative 	labor 	relations
between 	the public 	institutions 	of higher
education and 	their employees.
The 	transition 	from no 	representation 	to 	exclusive 	representation
must 	occur 	in a manner that promotes 	stability, 	avoids 	disruption
and acknowledges 	the 	changing 	relationships 	between 	the 	employer,
employees 	and exclusive 	representative, 	while 	recognizing 	their
rights and obligations under HEERA. 	In this way, 	the public
29

interest 	in 	the 	development 	of 	harmonious 	and 	cooperative 	labor
relations 	is 	served.
To 	further this principle, 	the 	employer must proceed with
caution during 	the 	election process. 	The 	employer may not 	grant
or withhold benefits unless: 	(1) 	operational 	necessity or
factors 	other 	that 	the pendency of 	the 	election 	justify 	the
decision and timing; 	or 	(2) 	the action is 	consistent with past
practice. 	(San Ramon Valley Unified School District, 	supra. 	PERB
Decision No. 	Ill; 	The Great A & P Tea Co. 	(1967) 	166 NLRB 27
[65 	LRRM 1489].) 	Neither granting nor withholding benefits 	is
per se unlawful. 	The 	test 	is whether the employer manipulates
benefits 	to 	influence the employees' 	decision during the union's
organizing campaign. 	(NLRB v. 	Industrial Erectors. 	Inc.
(7th Cir. 	1983) 	712 	F.2d 113 	[113 LRRM 3665]; 	NLRB v. 	Otis
Hospital 	(1st Cir. 	1976) 	545 	F.2d 252 	[93 	LRRM 2778].)
Clovis Unified School District, 	supra. 	PERB Decision
No. 	389, 	involved an employer's 	lawful 	grant of a salary increase
during 	the 	election process. 	The district 	issued a 	salary
schedule 	containing no fiscal 	year 	1983-1984 	salary increase. 	A
month later, 	the district 	conditioned employee wage 	increases 	on
increased 	legislative 	funding 	in 	similar notices 	issued 	to
confidential 	and management 	employees. 	Then the association
filed a 	representation petition. 	During 	the preelection
campaign, 	district 	administrators 	actively urged employees 	to
vote 	"no representation." 	Later, 	since the Governor's proposed
budget 	included a 	6 percent 	increase 	for school 	districts, 	the
30

district 	voted 	to 	continue 	a 	2 	percent 	pay 	increase 	into 	the
1983-1984 	year. 	The Board 	found the 	increase 	lawful 	since 	the
district 	never altered 	its 	behavior because 	of 	the 	union's
organizing 	campaign. 	Granting 	the 	increase 	to 	employees 	outside
the 	organizing 	campaign, 	and according 	to an announced plan,
further 	indicated 	that 	factors 	other 	than 	the 	election governed
the action.
In this 	case, 	the University was 	obligated to act without
reference 	to 	the 	representation election with 	regard 	to 	the
inclusion of 	technical unit 	employees 	in the 	"no trigger" 	salary
plan. 	The University 	followed 	its 	standard procedure 	to develop
two 	fiscal 	year 	1994-1995 	SPP and APSP 	salary plans 	for all
nonexclusively represented employees 	in July 1994. 	Since 	the
University gave 	the 	salary 	increase 	to numerous 	employees 	not
involved in the 	representation election, 	and the 	increase was
consistent 	with a 	systemwide 	salary plan which 	resulted 	from the
increase 	in 	state 	funding, 	the pendency of 	the 	election did not
prohibit 	the 	University 	from granting 	technical 	unit 	employees
the 	salary increase. 	On the 	contrary, 	once 	the 	state 	funding
situation allowed implementation of 	the 	"no trigger" 	plan, 	the
University was 	obligated 	to 	treat 	technical 	unit 	employees 	like
other 	nonexclusively 	represented 	SPP 	and APSP 	employees 	and 	grant
them the 	"no trigger" 	salary increases.
The University also 	contends 	that 	its 	HEERA obligation 	to
bargain with UPTE 	over wages 	prohibited 	it 	from granting 	the
salary 	increase 	during 	the post-election, 	precertification
31

period. 	(Mike O'Connor Chevrolet, 	supra, 	209 NLRB 701.) 	Mike
O'Connor 	Chevrolet 	does 	not 	strictly prohibit 	employer wage
changes 	during 	this period. 	This 	case 	instructs 	the 	employer
that 	it must 	exercise caution in making post-election, 	pre-
certification wage 	changes.
The 	employer 	is not 	free 	to make any and all 	changes 	during
the period prior 	to 	the 	onset 	of 	the HEERA obligation to meet and
confer with 	the 	certified exclusive 	representative. 	During 	this
period, 	the 	employer may not 	change wage 	rates 	in order to avoid
its 	HEERA bargaining 	obligation after 	certification. 	However,
nothing prohibits 	the 	employer 	from granting a wage 	increase
whose 	timing 	is 	clearly justified by 	factors 	other 	than 	the
pendency of 	the union's 	certification. 	In fact, 	as noted above,
failure 	to grant 	an 	increase 	during 	this 	period due 	to 	the
employees' 	selection of an exclusive 	representative may
constitute unlawful 	discrimination. 	In this case, 	the State
Controller's 	announcement 	that 	there would be 	no 	state budget
cuts, 	and a preexisting salary plan for all 	SPP and APSP
employees, 	justified the 	timing of 	the University's decision to
implement 	the 	"no trigger" 	plan, 	not 	the pendency of UPTE's
certification. 	Therefore, 	the HEERA obligation to meet and
confer with 	the 	newly-certified 	exclusive 	representative 	did not
prohibit 	the University 	from granting 	the 	"no 	trigger" 	salary
increase 	to 	technical 	unit 	employees 	during 	the post-election,
pre-certification 	period.
32

REMEDY
HEERA section 	3563.3 	gives 	the 	Board broad remedial 	power,
including 	the authority to 	issue 	cease and desist 	orders 	and to
require 	affirmative action effectuating HEERA's policies. 	In a
long line of 	cases, 	the Board has 	ordered a make whole 	remedy
to 	compensate 	employees 	for 	the 	difference between what 	they
actually 	earned and what 	they would have 	earned but 	for 	the
employer's 	discriminatory 	conduct. 	(Santa Monica 	Community
College District 	(1979) 	PERB Decision No. 	103; 	Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104; 	Los Gatos
Joint Union High School District 	(1980) 	PERB Decision No. 	120;
San Diego Community College District 	(19 83) 	PERB Decision
No. 3 68.)
In addition to a cease and desist 	order, 	a make whole 	remedy
is 	clearly called 	for and appropriate 	in this 	case. 	The
University unlawfully 	discriminated 	against 	technical 	unit
employees 	and denied 	them the 	"no 	trigger" 	salary 	increases 	given
to 	other 	nonexclusively 	represented 	employees 	because 	of 	their
participation in protected conduct. 	Therefore, 	the University
should be 	ordered 	to make 	those 	employees 	whole by granting 	them
the 	salary increases 	they were unlawfully denied, 	plus 	interest.
The 	Board 	originally ordered 	7 	percent 	interest 	on backpay
awards, 	consistent with Article XV, 	Section 1 of 	the California
Constitution. 	Although California 	Code 	of 	Civil 	Procedure
section 	685.010 	deals with 	interest 	rates 	on court 	judgments 	and
does 	not 	apply to 	PERB, 	the Board 	in Mount 	San Antonio Community
33

College District 	(1988) 	PERB Decision No. 	691 adopted the
section's 	10 percent 	interest 	rate 	for backpay awards. 	However,
since 	Government 	Code 	section 	970.1 	exempts 	local 	public 	entities
from Code 	of 	Civil 	Procedure 	section 	685.010 	(California 	Fed.
Savings 	& Loan Assn. 	v. 	City of Los Angeles 	(1995) 	11 Cal.4th 342
[45 Cal.Rptr.2d 279]), 	PERB has applied the 10 percent rate of
interest 	only to University of 	California backpay awards, 	and the
7 	percent 	rate 	of 	interest 	to backpay awards 	involving 	other
employers. 	The Board finds 	no 	justification for continuing 	this
disparate 	approach.
Several 	California Courts 	of Appeal 	have held that
administrative 	agencies 	are 	not 	bound by 	the 	7 	percent 	interest
rate specified in Article XV, 	Section 1 of 	the California
Constitution. 	(Bertuccio v. 	Agricultural 	Labor Relations Bd.
(1988) 	202 Cal.App.3d 1369, 	1393 	[249 Cal.Rptr. 	473]; 	J.R. 	Norton
Co. 	v. 	Agricultural Labor Relations Bd. 	(1987) 	192 	Cal.App.3d 874
[238 Cal.Rptr. 	87]; 	Sandrini Brothers v. Agricultural Labor
Relations Bd. 	(1984) 	156 Cal.App.3d 878, 	887 	[203 Cal.Rptr.
304].) 	These 	courts 	also have noted that 	substantial 	policy
considerations 	support the 	imposition of a flexible, 	market-
oriented interest 	rate on backpay awards. 	(J.R. 	Norton Co. 	v.
Agricultural Labor Relations Bd.. 	supra, 	at p. 	902 	(noting that
an 	interest 	rate 	keyed to 	the private money market more 	closely
reflects 	the actual 	cost 	of money to an employer and more
adequately compensates an employee); 	Sandrini Brothers v.
Agricultural 	Labor Relations Bd.. 	supra. 	at p. 	888 	(finding that
34

a market-oriented 	interest 	rate 	closely approximates 	the 	actual
cost 	of money).) 	Furthermore, 	the 	remedial 	order of a quasi-
judicial 	agency such as 	PERB, 	exercising 	its 	original
jurisdiction, 	will 	stand unless 	it 	represents an attempt 	to
achieve 	ends 	other 	than 	those 	reasonably 	calculated 	to 	effectuate
the policies of the acts 	it administers. 	(J.R. 	Norton Co. 	v.
Agricultural Labor Relations Bd.. 	supra. 	192 	Cal.App.3d 874.)
As 	noted above, 	the Board has 	broad authority to order
remedies 	necessary 	to effectuate 	the policies 	and purposes 	of 	the
HEERA. 	In this 	case, 	the Board determines 	that 	the payments 	to
eligible 	technical 	unit 	employees 	unlawfully denied 	the 	"no
trigger" 	salary 	increases 	shall 	be 	subject 	to 	interest 	at 	the
rate of 	7 percent per annum.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in this 	case, 	the Board finds 	that 	the
Regents 	of 	the University of 	California 	(University) 	violated the
Higher Education Employer-Employee Relations Act 	(HEERA),
Government Code 	section 3571(a), 	by interfering with the 	right 	of
technical 	unit 	employees 	to 	select 	an exclusive 	representative
and discriminating against 	technical 	unit 	employees, 	by denying
them the 	"no trigger" 	salary increase, 	in retaliation for their
exercise 	of 	protected rights. 	This 	same action also 	interfered
with 	the 	right 	of 	University 	Professional 	and Technical
Employees, 	CWA Local 9119, 	AFL-CIO 	(UPTE) 	to represent its
members 	in violation of HEERA section 3571(b).
35

Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED 	that
the University 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	right 	of 	technical 	unit
employees 	to 	select 	an 	exclusive 	representative;
2. 	Discriminating against 	technical unit employees, 	by
denying them the 	"no trigger" 	salary increase, 	in retaliation for
their exercise of protected rights; 	and
3. 	Interfering with the 	right 	of UPTE 	to 	represent
its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF HEERA:
1. 	Pay eligible 	technical 	unit 	employees 	salary
increases 	set 	forth in the 	"no 	trigger" 	plan promulgated by 	the
University on August 	10, 	1994. 	Retroactive sums paid to such
employees 	shall 	be 	subject 	to 	interest 	at 	the 	rate 	of 	seven 	(7)
percent 	per annum.
2. 	Within thirty-five days 	(35) 	following the date
this Decision 	is no longer subject 	to 	reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to 	insure 	that 	this
Notice 	is not 	reduced 	in size, 	defaced, 	altered or covered by any
material.
36

3. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order 	shall 	be made 	to 	the 	San 	Francisco 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	the Director's 	instructions.
Members 	Johnson and Dyer joined 	in 	this Decision.
37

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	SF-CE-414-H,
University Professional and Technical 	Employees 	(UPTE). 	CWA
Local 	9119, 	AFL-CIO v. 	The Regents of 	the University of California, 	in
which all parties had the 	right 	to participate, 	it has been 	found that
the Regents 	of 	the University of 	California 	(University) 	violated
Government 	Code section 3571(a) 	and 	(b) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA). 	The University violated
HEERA by 	interfering with 	the 	right 	of 	technical 	unit 	employees 	to
select 	an 	exclusive 	representative 	and 	discriminating against
technical unit 	employees, 	by denying them the 	"no trigger" 	salary
increase, 	in retaliation for their exercise 	of protected rights.
As a result 	of 	this 	conduct, 	we have been ordered to post 	this
Notice, 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the right 	of 	technical unit 	employees
to 	select 	an exclusive 	representative;
2. 	Discriminating against 	technical unit 	employees, 	by
denying 	them the 	"no trigger" 	salary increase, 	in retaliation for
their exercise of protected rights; 	and
3. 	Interfering with the 	right 	of UPTE 	to 	represent 	its
members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF HEERA:
1. 	Pay eligible 	technical 	unit 	employees 	salary 	increases
set 	forth 	in 	the 	"no 	trigger" 	plan promulgated by 	the 	University on
August 	10, 	1994. 	Retroactive sums paid to such employees 	shall be
subject 	to 	interest at 	the 	rate of 	seven 	(7) 	percent per annum.
Dated: 	REGENTS 	OF THE UNIVERSITY
OF 	CALIFORNIA
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST NOT BE
REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
e