PERB Decision No. 0359H•Regents of the University of California * * * VACATED by Cole Letter of October 29, 1986 * * * (PERB 0359H)
Regents of the University of California * * * VACATED by Cole Letter of October 29, 1986 * * * (PERB 0359H)
PERB Decision No. 0359HCalperbNov 23, 1983
Full text
STATE OF CALIFORNIA GEORGE DEUKMEJIAN, Governor PUBLIC EMPLOYMENT RELATIONS BOARD Headquarters Office 1031 18th Street Sacramento, CA 95814-4174 (916) 322-3088 October 29, 1986 Thomas Dub1in, President University Council, AFT 13434 Calais Drive P.O. Box 2181 Del Mar, CA 92014 • Susan M. Thomas, Attorney Office of the General Counsel 590 University Hall Berkeley, CA 94720 RE : Regents of the University of California Case No. SF-CE-57-H; PERB Decision No. 359-H Dear. Parties : - The Public Employment Relations Board received on October 27, 1986 Mr. Dublin's letter stating that University Council - American Federation of Teachers withdraws with prejudice the unfair practice charge in Case N o . SF-CE-57-H. Accordingly, the decision in this case, PERB Decision N o . 359-H, is hereby vacated. Sincerely, Charles L. Cole Executive Director
V A C A T E D by C ole Letter o f O cto b er 29, 1986
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL, AMERICAN
FEDERATION OF TEACHERS and
AFT LOCAL 2199,
Charging Parties,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Respondent.
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)
)
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) Case No. SF-CE-57-H
PERB Decision No. 359-H
November 23, 1983
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____________________________________________ )
Appearances: Robert J. Bezemek, Attorney (Bennett & Bezemek)
for University Council, American Federation of Teachers and AFT
Local 2199; Milton H. Gordon, Attorney for The Regents of the
University of California.
Before Tovar, Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: This case is before the Public
Empl G yment Relations Board (PER® or Board) on exceptions filed
by both! Che University Council, American Fcrieratton of Teachers
ard AFT Lora1 2199 {AFT} a n d T hc Regents tf the Uciversity of
Californe a (UC or University) to the adtbnrstrrtihe iaw judge's
(ALJ ) attached propored detis ion. In e^c^r^c}ral, tee Cniversity
takes exctttion to the ALJ 1s fendings that it violated
subcections 3571 (a) and (b) of thelirhxr Etucation
Emplttcr-Emxtocce ReRations A ci {HEhIAi}1 ty uniRatrrtlly
iHEERA is codified at Government Code section 3560reducing the maximum duration of full-time lecturer positions without providing AFT with advance notice and a reasonable opportunity to meet and present its views. AFT's exception seeks modification of the ALJ's remedial order. The Board has reviewed the record in light of the parties' exceptions and finds that the ALJ 1 s findings of fact are free from prejudicial error and adopts them as the findings of the Board itself. DISCUSSION In the main, exceptions raised by the University reiterate contentions raised and fully discussed by the ALJ. For the reasons expressed in the attached proposed decision, we summarily affirm the conclusion that the University was obligated by HEERA to meet and discuss the lecturer policy changes with AFT, the nonexclusive employee representative. et seq. Unless otherwise indicated, all statutory referencesare to the Government Code. Section 3571 provides, in relevant part, as follows: 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 coerceemployees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rightsguaranteed to them by this chapter. 2
State of California (Professional Engineers in California Government (PECG)) (3/19/80) PERB Decision No. 118-S; California State University, Sacramento (4/30/82) PERB Decision No. 211-H; Regents of the University of California (Lawrence Livermore National Laboratory) ( 4/30/8 2) PERB Dec is ion No. 212-H; California State University, Hayward (8/10/82) PERB Decision No. 231-H~ State of California, Department of Corrections (5/5/80) PERB Decision No. 127-S; State of California, Franchise Tax Board (7/29/82) PERB Decision No. 229-S. We also affirm the factual conclusion that the established cumulative practice was to grant lecturers yearly contract renewals for up to eight years, ab~ent class or program changes, poor performance or financial exigency. Those cases cited by the University in its exceptions are, as the ALJ noted, misplaced. AFT's charge is not constitutionally founded nor based on any acquired property right. The charge does not seek job security per se for any individual employees. Rather, AFT charges that UC unilaterally altered the established practice of reappointing lecturers. While such a past practice might not establish a cognizable property interest in future employment, the evidence is sufficient to establish that, in the past, a condition of lecturers' employment at UC included a reasonable expectation that contracts would be renewed for up to eight years. 3
We likewise reject UC's argument that, since the policy change only affected possible future employment, it did not adversely affect the present employment conditions. This argument is unpersuasive. The critical question is not whether lecturers held iron-clad expectations that they would be reappointed but whether, before the policy change, they could be reappointed. Thus, since the policy reduced the maximum employment period from eight to four years, it clearly effected a fundamental change in working conditions. It imposed a maximum term of employment which reduced the lecturers' reemployment expectancy by one-half. Citing subsection 3563.2(a) ,2 UC argues that the instant charge is barred by the six-month statute of limitations period. It asserts that the new adjunct and visiting lecturer policy was issued on February 22, 1980, more than six months prior to June 3, 1981, the date the instant charge was filed. In this exception, UC argues that AFT was on notice that the lecturer policy was being altered beginning in 1980, and it failed to file a timely charge. The ALJ's decision, at pp. 50-54, fully addresses this contention, and we adopt his conclusion that none of the cited events afforded AFT adequate notice of the policy change. The 21n pertinent part, subsection 3563.2(a) precludes theBoard from issuing a complaint with regard to any charge basedupon an alleged unfair practice occurring more than six months prior to the filing of the charge. 4
Sullivan report and subsequent discussions were tentative in nature. These events provided no notice of a specific plan or course of action. Various rumors of which AFT was said to be aware likewise failed to provide sufficient notice. As aptly noted by the ALJ: [C]onjecture or rumor is not an adequate substitute for an employer's formal notice to a union of a vital change in working conditions . • . . (NLRB v. Rapid Bindery, Inc. (2d Cir. 1961) 293 F.2d 170 TI8LRRM 2658].) We similarly reject UC's contention that various articles appearing in AFT newspapers establish AFT's awareness of the forthcoming change. These articles refer to the possibility of future changes in guidelines for receipt of security of employment; they do not refer to the eight-year rule. Moreover, AFT witnesses unequivocally denied receiving notice and, as the ALJ specifically concluded, their testimony was not discredited. UC witnesses likely to inform AFT testified that they gave no direct, formal notice to the union. Indeed, Thomas Mannix, Director of Collective Bargaining Services for UC, and Philip Encinio, Manager of Employee Relations for UC, testified that they did not know about the policy change until AFT initiated the instant charge. We find from these facts that the University did not afford the employee organization adequate notice in advance of the policy change.3 3While in no way affecting the conclusion reached, we specifically disavow the ALJ's reference to the fact that the 5
UC also argues that it satisfied any obligation it had to meet and discuss the lecturer policy change. The ALJ concluded to the contrary, finding that the meetings held in 1981 occurred after the new rule had been issued. We agree. UC <lid not place the policy in abeyance or rescind the newly enacted rule. Whatever input AFT representatives were afforded during these meetings was too late in the process to be more than a request for resumption of the status quo.4 UC also disputes the conclusion that it failed to rescind or hold the policy in abeyance. It maintains that, since only the four-year rule fundamentally affected the lecturers' terms Sullivan report differed from the eventual policy as issued by the University. Our assessment of the sufficiency of the actual advance notice provided does not depend on the form the notification may take. Thus, while conjecture or rumoraoesnot supply sufficient notice (Rapid Bindery, supra), neither is it essential that the union be provided with formal notice ofthe intended change. See Morris, The Developing Labor Law, Second Edition, Vol. I, p. 648. The pertinent inquiry is whether the employer's conduct was reasonably calculated toadvise the union of an impending or contemplated change and of its opportunity to participate in that decision-making process. In the circumstances of the instant case, insufficient notice was provided. 4The University objects to the ALJ's finding that the University representatives who eventually met with AFT lacked authority to alter systemwide policies. Mannix te~tified that he was authorized to carry AFT's suggestions to persons with the authority to alter systemwide policies. We find that no lack of good faith is demonstrated by such an arrangement, particularly where UC 1 s responsibility was to discuss the policy with AFT. However, our agreement with the University's position that its representative did not lack sufficientauthority in no way disturbs our conclusion that the discussions which followed the policy enactment failed to satisfy UC 1 s obligations under HEERA. 6
and conditions of employment, the authority of each campus to "grandfather" the then-employed lecturers evidenced a policy modification akin to rescission or abeyance. This argument is without merit. The University violated HEERA by its failure to meet and discuss the lecturers' policy before unilaterally changing it. The fact that it attempted to afford some relief to those employees harmed by the policy change does nothing to restore the eight-year rule. The ALJ's finding refers to the University's unwillingness to entertain AFT's views in conjunction with bilateral decision making. Authorization to grandfather existing lecturers, decreed by employer fiat, does not disturb or mitigate the unfair practice finding. UC takes exception to the ALJ's remedy because it applies to all lecturers rather than only AFT members. We disagree. All lecturers employed at UC suffered the SO-percent reduction in maximum duration of employment. UC violated HEER~ by effecting that change without first meeting and discussing it with AFT. The basis for imposing this obligation is to afford some input to employee organizations whose members include employees affected by the rule change. While it is true that AFT, as a nonexclusive representative, served as a spokesperson for its members only, we do not believe that the remedy ordered herein, restoration of the status quo ante, should be so limited. Had the University met with AFT as required by HEERA and agreed to retain the eight-year rule, it could not have 7
implemented the policy only as to AFT members without violating subsection 357l(d)5 which precludes, inter alia, the employer's preference or support for one employee organization over another. Consistent with Board precedent, imposition of the status quo ante remedy shall apply to all employees of the University. The Regents of the University of California (UCLA) (12/21/82) PERB Decision No. 267-H. UC also contends that the order inappropriately covers lecturers employed as of February 22, 1980, the date the policy issued. It argues that the policy implementation date, July 1, 1980, should be used. We find that the facts support the date used by the ALJ. The official revision of the rule was distributed to campus chancellors on February 22, 1980, and it was accompanied by a letter from President David S. Saxon which announced the new Academic Personnel Manual section to be 5section 3571 provides in pertinent part as follows: It shall be unlawful for the higher education employer to: (d) Dominate or interfere with the formation or administration of any employee organizat on, or contr;bute financial or other support to it, or in any way encourage employees to join any organization in preference to another; provided, however, that 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. 8
immediately effective. The remedy should thus run from that date.6 UC contends that the ALJ's order is overly broad because it applies to lecturers employed at all UC campuses. This contention, too, should be rejected. The essence of the charge complains of systemwide policy change. The order should not be disturbed. Related to this assertion is UC 1 s contention that AFT failed to demonstrate that the change in policy adversely affected the lecturers employed at the time the change occurred. This argument, while written as an exception to the proposed decision, is more aptly relevant to a compliance hearing. The Board concludes, as a matter of law, that the University altered the lecturer employment policy and it is ordered, inter alia, to compensate all individuals harmed by the unilateral change, whether by nonreappointment or by virtue of leaving the University to seek an appointment of longer duration. The question of precisely who those individuals are and to what extent they were harmed may require a factual 6rn addition, UC claims that, because it was unaware of its obligation to nonexclusive representatives, the Board should issue a prospective remedy only. This request is denied. Among other arguments made by the ALJ, we observe that the Board's decision in Professional En ineers, suara,impliedly modified pre-ex1st1ng Boar prece ent an issued only weeks after Saxon's decree in February 1980. After the case issued, UC did not mend its ways but rather continued to issue unilateral clarifications and revisions to the policy without notice to AFT. 9
determination distinct from that addressed in the instant case.7 UC also asserts that, as to the Santa Cruz campus, the policy is yet to be implemented, and the only policy change has been to alter the lecturers' titles. The ALJ 1 s discussion of this issue correctly concludes to the contrary. The evidence supports the finding that the basic terms of the revised lecturer policy had been implemented at Santa Cruz by mid-1981. The heart of the policy was systemwide in nature and provided a four-year employment term. Santa Cruz officials had no control over this provision. The initial reclassification letters sent in 1981 were not subsequently disclaimed nor rescinded. When the parties met on August 5, 1981, the decision to revise the lecturer policy had been made, and AFT's input was limited to local matters traditionally left to campus discretion. The authority of campus officials to discuss the ?with regard to AFT 1 s request to clarify the ALJ 1 s proposed remedy, our Order directs reinstatement of lecturers teaching more than SO-percent time beginning February 22, 1980. Individuals may have to participate in a compliance proceeding in order to substantiate their claim that the failure to be reappointed was the result of the reduction in the lecturers' duration of employment. As to the evidence concerning Merle Woo from the Berkeley campus, however, we reject UC 1 s argument that the basis for her termination was not the altered policy but her criticisms of the program. The ALJ's credibility determination and specific findings of fact are expressly outlined and will not be disturbed by the Board. 10
grandfathering policy was derived from and did not exceed that permitted by provision of the systemwide policy. AFT was not permitted the opportunity to meet and discuss a uniform grandfathering policy. ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to section 3563.3 of the HEERA, it is hereby ORDERED that the Regents of the University of California and its representatives shall: 1. CEASE AND DESIST FROM: (a) Interfering with the right of employees to representation by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more tharrS0-percent time without first giving notice to interested employee organizations and, upon request, discussing that subject pending the selection of an exclusive representative for the employees affected; (b) Denying employee organizations a reasonable opportunity to represent employees by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more than SO-percent time without first giving notice to interested employee organizations and, upon request, discussing that subject pending the selection of an exclusive representative for the employees affected. 11
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE HIGHER EDUCATION EMPLOYER-EMPLOYEE RELATIONS ACT: (a) Upon request, reinstate the policy of allowing a maximum duration of eight years' employment for lecturers teaching more than SO-percent time, to be applied retroactively to those so employed on and after February 22, 1980. (b) Upon request, reinstate those lecturers teaching more than SO-percent time as of February 22, 1980, who are no longer so employed and whose lecturer employment thereafter would not have been terminated but for application of a new policy limiting employment of lecturers teaching more than SO-percent time to a maximum duration of four years. Reinstatement shall be made at the beginning of the next academic quarter, semester or special session, as appropriate, unless the employer is prepared to offer reinstatement prior to the succeeding academic period. Requests for reinstatement must be made to an employee's previous appointing authority within 45 workdays of service of this Order in this proceeding, provided adequate notice of the Order has been transmitted to said employees at their last known address. (c) Make reinstated lecturers whole by paying them for any loss of pay and other benefit(s) resulting from termination pursuant to a new policy limiting lecturer employment at more than SO-percent time to a maximum duration of four years. The total amount of this award shall be offset 12
by the amount of earnings received as a result of other employment during this period. The employer's make-whole obligation shall cease upon occurrence of the earliest of the following conditions: (1) the date on which termination would have been permissible in the normal course of University business; or (2) the effective date of an actual reinstatement offer that is not thereafter accepted; or (3) 45 workdays after service of this Order if no request for reinstatement has been received, provided adequate notice of the Order has been given; or (4) satisfaction of the employer's duty to meet and discuss, upon request, a proposed policy affecting the maximum duration of lecturer employment. (d) Pay 7 percent interest per annum on the net amount of back pay owed pursuant to the make-whole provision of this Order. (e) Upon request of the University Council of the American Federation of Teachers or AFT Local 2199, meet and discuss any proposed change in the maximum duration of employment for lecturers teaching more than 50-percent providing said organization a reasonable opportunity to present its views prior to the employer's arrival at a determination of policy or course of action. (f) Within thirty-five (35) days after service of this Decision, prepare and post copies of the Notice to Employees, attached as an appendix hereto, for at least thirty 13
(30) consecutive workdays at its headquarters offices and in conspicuous places at locations throughout the University system where notices to employees serving as lecturers are customarily posted. It must not be reduced in size, and reasonable steps should be taken to see that it is not defaced, altered or covered by any material. (g) Within fifteen (15) days after service of this Decision, prepare and mail a copy of the Notice to Employees to lecturers no longer employed in that capacity by the University, but who were so employed on February 22, 1980. Notice to said employees should be sent to their last known address. (h) Within twenty (20) days after service of this Decision, give written notification to the San Francisco Regional Director of the Public Employment Relations Board of the actions taken to comply with this Order. Continue to report in writing to the regional director thereafter as directed. All reports to the regional director shall be concurrently served on the charging parties herein. Member Burt joined in this Decision. Member Tovar's concurrence begins on page 15. 14
15 15 Tovar, Member, concurring: As exp::essed in my concurrence in Regents of the University of Calif,Jrn:..a (UCLA) (12-21-82) PERB Decision No. 267-H, my views on t!:1e representational rights of nonexclusive representatives under HEERA differ so:ne'tJhat from those of the r,.::st of the Board. I here reaffirm my position as expressed in the above-noted case. In all other respects, I add my endorsement to the majority opinion.
APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Case No. SF-CE-57-H, University Council, American Federation of Teachers and AFT Local 2199 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 violated GovernmentCode subsections 357l(a) and (b). As a result of this conduct, we have been ordered to post this Notice and will abide by the following. We will: 1. CEASE AND DESIST FROM: (a) Interfering with the right of employees torepresentation by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more than SO-percent time without first giving notice to interested employee organizations and, upon request, discussing that subject pending the selection of an exclusive representative for the employees affected; (b) Denying employee organizations a reasonable opportunity to represent employees by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more than 50-percent time without first giving notice to interested employee organizations and, upon request, discussing thatsubject pending the selection of an exclusive representative for the employees affected. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE HIGHER EDUCATION EMPLOYER-EMPLOYEE RELATIONS ACT: (a) Upon request, reinstate the policy of allowing a maximum duration of eight years' employment for lecturersteaching more than SO-percent time, to be applied retroactivelyto those so employed on and after February 22, 1980. (b) Upon request, reinstate those lecturers teaching more than 50-percent time as of February 22, 1980, who are no longer so employed and whose lecturer employment thereafter would not have been terminated but for application of a new policy limiting employment of lecturers teaching more than SO-percent time to a maximum duration of four years.
Reinstatement shall be made at the beginning of the next academic quarter, semester or special session, as appropriate, unless the employer is prepared to offer reinstatement prior to the succeeding academic period. Requests for reinstatement must be made to an employee's previous appointing authority within 45 workdays of service of this final Order in this proceeding, provided adequate notice of the Order has been transmitted to said employees at their last known address. (c) Make reinstated lecturers whole by paying them for any loss of pay and other benefit(s) resulting from termination pursuant to a new policy limiting lecturer employment at more than SO-percent time to a maximum duration of four years. The total amount of this award shall be offset by the amount of earnings received as a result of other employment during this period. The employer's make-whole obligation shall cease upon occurrence of the earliest of the following conditions: (1) the date on which termination would have been permissible in the normal course of University business; or (2) the effective date of an actual reinstatement offer that is not thereafter acceptedt or (3) 45 workdays after service of this Order if no request for reinstatement has been received, provided adequate notice of the final Order has been given; or (4) satisfaction of the employer's duty to meet and discuss, upon request, a proposed policy affecting the maximum duration of lecturer employment. (d) Pay 7 percent interest per annum on the net amount of back pay owed pursuant to the make-whole provision of this Order. (e) Upon request of the University Council of the American Federation of Teachers or AFT Local 2199, meet and discuss any proposed change in the maximum duration of employment for lecturers teaching more than 50-percent time, providing said organization a reasonable opportunity to present its views prior to the employer's arrival at a determination of policy or course of action. Dated: THE 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. 2
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD UNIVERSITY COUNCIL, AMERICAN FEDERATION OF TEACHERS (AFT), and AFT LOCAL 2199, Charging Party, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) _________________________________ Unfair Practice Case No. SF-CE-57-H PROPOSED DECISION (12/2/82) Appearances; Robert J . Bezemek, Bennett & Bezemek, attorney for charging party University Council, AFT, and AFT Local 2199; Milton H. Gordon, attorney for respondent Regents of the University of California. Before; Barry Winograd, Administrative Law Judge. PROCEDURAL HISTORY On June 3, 1981 the University Council of the American Federation of Teachers and its affiliated Local 2199 (hereafter AFT) filed an unfair practice charge against the Regents of the University of California (hereafter Regents or University). The charge alleged, in essence, that the employer had unilaterally altered terms and conditions of employment for University lecturers, including reduction of the maximum amount of time allowed for service in full-time lecturer positions. AFT asserted that this action violated sections 3571(a) and (b)
of the Higher Education Employer-Employee Relations Act (hereafter HEERA or Act) .1 On December 31, 1981 the charging party submitted an amendment alleging that, after the original charge was filed, AFT met with University agents to discuss the lecturer policy changes, but that the University did not participate in the sessions in good faith.2 On June 25, 1981 and January 18, 1982 the Regents filed answers to the charge and the amendment. While admitting certain facts, the answers generally denied the allegations of unlawful conduct and set forth several affirmative defenses. lThe HEERA is codified at Government Code section 3560, et seq., and is administered by the Public Employment Relations Board (hereafter PERB or Board). Unless otherwise indicated, all statutory references in this decision are to the Government Code. Section 3571 of the Act provides that it shall be unlawful for a higher education-employer to: (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten todiscriminate 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. 2A further allegation that the Regents' conduct violated section 357l(f), by bypassing a petitioning employee organization and conducting talks with employee advisory groups on a matter within the scope of representation, was subsequently withdrawn during the formal hearing. 2
Admissions, denials and defenses will be considered below as relevant to this decision. An informal settlement conference was conducted on June 25, 1981 but the dispute was not resolved. Following the issuance of a complaint, on February 18, 1982, and a notice of hearing, on March 26, 1982, a formal hearing was held at Berkeley, California, on May 25, 26 and 27, and June 30, 1982.3 After each party requested extensions of time, post-hearing briefs were filed and the matter was submitted on November 3, 1982. FINDINGS OF FACT A. Background. In addition to individuals holding tenure in professor ranks, who are thereby entitled to membership in the Academic Senate, the University of California utilizes a substantial number of non-Academic Senate teaching personnel, including lecturers. During the period leading up to the policy changes 3At the end of its case-in-chief, the charging party amended its claim to conform to proof by including an allegation that the employer also met in bad faith with representatives of AFT Local 1474, a Berkeley affiliate, regarding campus-level features of the same lecturer changes described above. The amendment was received, over respondent's objection, on the grounds that the subject matter was closely related to and shed light upon the earlier charge and the first amendment. See San Ramon Valley Unified School District(8/9/82) PERB Decision No. 230 at pp. 9-10. 3
at
issue
in
this
case, there
were
approximately
1500
to
2500
lecturers,
full
and
part-time,
throughout the
University
system.
By
and
large, their
teaching
duties
involved
basic
undergraduate
courses.
Lecturers
teaching
more
than
part-time
have
typically
been
hired
on
one-year
contracts
without express
promise
of
reappointment.
However,
the
evidence
indicated
that contract
renewal has
been
common
except for
instances of
class
or
program
cancellations,
inadequate
performance
or department
financial
cutbacks.
Aside
from
these
limits,
the only
other
restraint
on
reappointment
has been
regulation
of the
maximum
duration of
full-time
employment,
discussed
immediately below.
A
change
in
that
policy
prompted
the
filing
of
this
charge.
Lecturers
(and
other
professional
employees)
are subject to
the provisions of
the
Academic
Personnel
Manual (APM).
Until
1980,
provisions of
APM
section
133
controlled
the
maximum
length
of lecturer
employment.
In the
past,
APM
section
133
permitted
retention of
lecturers
teaching
more than 50
percent
time
(that
is,
"full-time")
for
a
period
no
longer
than
eight years, unless,
by
that
point,
the
individual
was
given
"security of
employment" {or SOE).
Security of
employment
is
akin
to tenure
for
non-Academic
Senate teaching ranks,
and
establishes,
among
other things,
a permanent
career status
that
may be
disturbed
only for good
cause.
Another
related provision,
APM
4section 135, limited security of employment to appointments made only after periodic performance reviews. Security of employment would be granted if such review showed either exceptional teaching ability or special instructional need. In practice, according to several witnesses, the most significant review took place after six years. Approval at that stage was closely tied to receiving SOE two years later. The APM also required that SOE be based on the existence of a full-time budgeted position, otherwise known as full-time employment (or FTE). At the times relevant to this case, about 135 University lecturers had security of employment. Regardless, as conceded by University analyst Myron Okada, a principal employer representative familiar with these policies and procedures, all lecturers teaching more than 50 percent time were technically eligible for SOE following satisfactory reviews and assignment of a budgeted position. Many other lecturers, teaching less than 50 percent time (that is, "part-time"), were neither subject to the eight-year cut-off nor eligible for SOE based upon their limited service. Thus, the significance of achieving security of employment by the end of the eighth year was accentuated because reappointment to any full-time lecturer post after eight years was prohibited unless the person also had been given SOE. Without SOE, therefore, ongoing lecturers after eight years were confined to part-time status. 5
According to APM section 133, the eight-year period was comprised of 24 academic quarters (3 per year), and breaks-in-service did not jeopardize the accrual of the necessary number of quarters. Persons taking job-related leaves of absence could have that period counted toward the total time required. Also, section 133 allowed the computation of time in a lecturer position to be applied toward the distinct eight-year limit for completion of the assistant professor step that preceded granting of formal tenure. Hence, although not frequent nor in the typical line of progression, the lecturer position could be a stepping-stone toward tenured professor status. Other APM provisions also regulated terms and conditions relevant to lecturers. These sections governed the mechanics of the yearly reappointment process, the salary scale, travel allowances, and other employment matters. Since all lecturers were grouped under the same employee classification, these provisions were uniformly applied to those destined for SOE and those who were not. B. The Sullivan Report. In July 1977 University President David S. Saxon created an 11-member academic committee under the chairmanship of law professor Lawrence A. Sullivan. The purpose of the Sullivan Committee was to: •.. review the current policy on 6
limitations of period of service and its applicability, •.. assess its usefulness in terms of the University's present circumstances, and •.. recommend ... changes or clarifications .•.. The Committee's study, popularly known as the Sullivan Report, was sent to President Saxon in January 1978. The Report cast its analysis in terms of two University personnel goals related to the eight-year principle: (1) of protecting the individual faculty member from unduly long service at low salary and in insecure status, and (2) of making firm and timely decisions, for the good of the institution, to retain only the best aspirants as permanent members of the faculty .... (Report, p. 2.) The Committee identified four areas where limited-term teaching help was appropriate, up to full-time, on a so-called "temporary" basis: (a) specialized, often practice-oriented instruction; (b) elementary instruction of a repetitive character; (c} substitution assignments for faculty on the professorial ladder; and, (d) experimental programs without permanent funding. However, in the Committee's view, long-term non-tenured instructional faculty, including full-time teachers, were also required for some specialized instruction; for example, in technical or creative fields, or in developing a cadre of elementary language instructors. These long-term employees would be considered "permanent." Upon reviewing the existing distribution of teaching assignments, the Report stated: 7
The Committee is unanimous that the current system of titles produces significant procedural problems .•.• more troublesome, is the lack of discrimination within the Lecturer title between non-ladder positions purely temporary in nature and positions that, if the employee proves highly satisfactory, can lead to security of employment. The possibility of permanence for the few creates a false presumption of the possiblity of permanence in the minds of the many. (Report, p. 6.) In a similar vein, another part of the Report noted underlying problems viewed by the Committee: [F]irst is the need for clarity of mutual expectations. Experience shows that temporary personnel whose employment is renewed for five years or more tend to develop an expectation of continuity even though the terms of employment are to the contrary. Moreover, it becomes harder for all involved in the relationship to terminate it even in the face of clear programmatic need to do so. The University's fiscal and programmatic flexibility is eroded by continuing such appointments beyond the legitimate need for them. Second, persons doing basic teaching of a repetitive nature on a long term basis tend to grow stale in the subject matter unless stimulated by creative activity or graduate level teaching. (Report, p. 5.) Given the problems it found, the Sullivan Committee made several recommendations to President Saxon. One proposal was that there be a four-year limit for full-time non-tenured teaching work without SOE prospects, and that this 11 temporary 11 work be given a separate title from that of lecturer. The suggested new title was "Instructor." A second proposal was that the lecturer title, in the Committee's view, should be 8
reserved for "permanent 11 budgeted positions based on an FTE, filled after a formal recruitment search and still subject to the historic eight-year rule. Even though employees on each track could be full-time teachers, only those in the second permanent category could be security of employment candidates within the eight-year limit. Further, it was proposed that those given appointments in the new limited four-year classification would be on a salary scale that started below the then-current scale for lecturers (but was otherwise parallel). The Report recognized that breaking the existing lecturer ranks into two tracks--one short-term and without possiblity of SOE, the other with career SOE potential--could cause transition problems, but there was no consensus on a single device to guard the interests of incumbents: The majority of the Committee concludes that present Lecturers whose positions are identified as strictly temporary should be reappointed as Instructors subject, however, to an appropriate "grandfather" provision. Such a provision might, for example, protect any present Lecturer who, before implementation of the new system, had been given assurances by responsible campus officials that his or her particular position was one in which security of employment could be attained. One member of the Committee takes the view that any person presently holding the Lecturer title who has held it for more than six years should be granted an immediate formal review for security of employment based on the criteria now stated in the Academic Personnel Manual. Another member of the Committee notes that the actual functions of most 9
present Lecturers on his campus correspond to those appropriate to temporary AssistantProfessors rather than to those of Instructors, and suggests that authority forthe assignment of new titles reside at the Chancellor's level in case departments wish to change current Lecturers to temporary teaching/research titles. (Report, p. 10.) In another area of concern, "time on the clock" for acquiring credit toward tenured faculty positions, a Committee majority took the position that the established practice allowing accrual should be terminated. The majority believed that only time accrued for positions requiring both teaching and research should count, thereby excluding those in either the existing or the proposed lecturer series. The Sullivan Report reasoned that since lecturers were only required to teach, it would be unfair to consume part of their eight years on the professorial clock, which did require research productivity, with the limited function of lecturer service. On this issue, at least two minority views were recorded in the Report, one suggesting a flexible case-by-case approach and the other favoring the already established procedure of counting "service at more than half-time in any academic title." Still, the Committee unanimously proposed that preliminary service as a short-term lecturer would count toward the eight-year probationary period for lecturers later moved to a permanent SOE track. Under this computation, academically-related leaves of absence would also count toward the eight-year maximum, but other types of absences would not. 10
As evident from this detailed analysis, the Sullivan Report presented proposals that would dramatically alter the employment prospects for a substantial number of employees. Perhaps most striking was the Report's suggestion to cut from eight years to four the maximum length of teaching time for a vast number of lecturers, with an accompanying starting salary reduction as well. As the Report noted, this proposal, if adopted, would also dim implied expectations of many that lengthy service up to an eighth year could lead to security of employment. The Committee was obviously aware of the significance of its study and proposals, and couched its report accordingly: . our final report is, in part, a set of recommendations for chanqe and rationales for these and, in part, a policy planning document which presents some information and analysis and suggests alternative possible responses to relevant policy questions. (Report Cover Letter, p. 1.) Consistent with this view, the Committee noted: Our report, therefore, can be no more than the basis for further consultation both with campus and departmental administrators, with appropriate Senate mechanisms, and with representatives of non-Senate teaching personnel. Moreover, we worked rapidly and under considerable time pressure. We stayed at the level of basic policy. We do not profess to have studied all of the issues or implications even at this level or to have explored some other closely related questions. Nor did we consider, in any detail, any of the myriad problems which would arise in the process of implementing our proposals. For example, a variety of the problems would arise during a transition from the present set of titles and policies 11
to those which we propose. We have no doubt that "grandfather" clauses of some kind would be necessary to assure equitable treatment to some personnel. Our failure to address these questions arose not from insensitivity to them, but from a recognition that particulars like these could be dealt with effectively only after final decisions were made about the long range policy issues. (Report Cover Letter, p. 2; emphasis added.) A few months after the Sullivan Report was submitted, the University Council AFT requested a meeting to discuss the proposals and their status. A meeting took place on June 14, 1978 with representatives of the systemwide University administration. According to notes of the meeting, offered by respondent and confirmed by testimony from its notetaker, the AFT was assured that implementation of the Sullivan Report would be a gradual process, that there would probably be changes, and that the whole matter would be subject to discussion by campus administrators, Academic Senate members, and employee organizations.4 These notes were also confirmed by the testimony of an experienced University staff analyst who served on the Committee and participated in the June 1978 meeting. That witness, Lubbe Levin, stated that the Sullivan Report was not itself in a format comparable to other APM 4rnadvertently, these notes (Respondent's Exhibit No. 2} were not officially received in evidence during the hearing, even though the notetaker testified, identified the copy in evidence, and was available for cross-examination. The record should reflect, nunc ~Q tune, the receipt of the document. 12
revisions for the purpose of adoption as a new personnel policy. Most important, University officials indicated that the existing APM provisions would be "operating policy until formally revised." There was also limited testimony by Levin that she had a second meeting with AFT representatives about six months later. However, she did not recall the identity of participants, specific subjects discussed, or the outcome of the discussion. No notes were introduced from this session. The administrative law judge has therefore concluded that even if the meeting did occur, there is no persuasive evidence that it included a formal expression of AFT views about a pending proposal for a new policy or course of action. c. The New Policy for Lecturers. In March 1979, more than a year after the Sullivan Report was submitted, the University's systemwide staff prepared and distributed to campus administrators a draft proposal regarding reclassification for lecturers not on an SOE track. The goal was to receive comments a month later and implement the new policy by July 1979. At this point, and until the final product was completed, the lecturer policy change was under the direction of Edward J. Blakely, the assistant vice-president for academic personnel affairs. Blakely had been the senior staff person serving the Sullivan Committee and was familiar with the details of the study and its recommendations. Members 13
of his staff wrote the March 1979 draft and coordinated the review of comments from campuses. The initial draft was not approved as quickly as expected. Questions were raised, particularly about the "Instructor" title change urged by the Committee. Subsequent revisions carried the project into late 1979. By early 1980, however, agreement apparently had been reached among administrative staff throughout the state and an official revision of the APM was prepared. This revision was distributed to campus chancellors on February 22, 1980, over the signature of President Saxon, and was designated as new APM section 63.5 According to Saxon 1 s cover letter, the authenticity of which is not in dispute, the new APM section was "effective immediately." He informed recipients that the new policy had been extensively reviewed by University committees and offices, and that actual inserts for the APM would be forthcoming soon. As discussed more fully below, neither the preliminary drafts of the new APM section, nor the policy issued in February 1980, were submitted to the AFT for review and comment prior to adoption. Ssections of the APM were recently renumbered and APM section 63 is now section 287. For convenience, the original number, often referred to in testimony and exhibits, will be used in this decision. 14
APM section 63 did not adopt the "Instructor" title recommended by the Sullivan Committee, but did provide for new classifications of "visiting" and "adjunct" lecturers.6 The new classes would be limited to appointment terms not to exceed two years, with a maximum of four years full-time service (that is, 12 quarters), whether continuous or interrupted. It was prescribed that service in the new visiting or adjunct classifications would not count toward professorial tenure,7 but that it could be accrued, as part of a maximum of eight years, for a lecturer position on the SOE track. Other terms and conditions of employment, including retirement system eligibility, and a salary scale equivalent to that for lecturers, remained as before.8 Interpretative testimony by University officials, borne out by AFT witnesses, indicated 6Technically, "senior visiting" and "senior adjunct" titles were also created, thereby retaining a parallel to the graduated "lecturer" and "senior lecturer" structure that existed before and after new APM section 63 went into effect. 7A later revision, dated November 11, 1981 and distributed in January 1982, apparently retracted this alteration of past practice, thereby providing that visiting and adjunct lecturer service would count toward time-on-the-clock for tenured professor positions. (See Charging Party Ex. 28.) 8Travel expenses for conferences and professional advancement were geared to other APM provisions governing either "visiting" or "adjunct" positions. There was insufficient evidence, however, that this actually limited potential allowances that were traditionally discretionary. 15
that no change in the substantive content of teaching duties was contemplated as part of the new policy. Responsibility for establishing specific appointment and review procedures consistent with APM Section 63 was expressly delegated to campus chancellors. Significantly, the new APM section 63 was silent about grandfathering individuals who were to be reclassified to the new titles. However, on this issue, documentary evidence indicates at least two written clarifications of the APM were distributed after the February 1980 policy was released. First, in May 1980, Blakely wrote to academic vice-chancellors regarding questions that had been raised about the new titles. Blakely began by summarizing the previous action establishing new visiting and adjunct classes, and its import: These titles have been developed in order to distinguish two types of appointments which have been made under the title of Lecturer-- temporary appointments and appointments which may lead to security of employment. The title of Lecturer is henceforth to be used only when approval has been given for allocation of an FTE to be filled by a permanent appointment as Lecturer with Security of Employment, and the appointee is to be considered as a candidate for advancement to security of employment. My staff is currently working on a revision of the Lecturer title which will formally embody these changes. The new titles in Section 63 will be used for all temporary appointments. Recognizing the requirement for individual reviews and 16
fair treatment, the campuses should transfercurrent temporary lecturers to the new titles as soon as possible. Blakely then responded to concerns about the grandfathering issue. He informed campuses that full-time lecturers in the new and old titles could be retained for up to eight years: Service at more than 50% time in any combination of these new titles and the titles Lecturer or Senior Lecturer is limited to a maximum of eight years. Individuals who are currently Lecturers or Senior Lecturers may serve up to four years at more than 50% time in the new titles, but, in all cases the eight year rule applies. However, grandfathering was not established across-the-board. Blakely gave campuses leeway to, ... be more restrictive in your limitation of service in a combination of the lecturer titles. Thus, a campus for many legitimate reasons may choose to limit service in the combined new and old lecturer titles to less than eight years. A second clarification apparently modifying Blakely 1 s May 1980 interpretation was adopted after this charge was filed, although there is no evidence, other than that circumstance, showing a causal relationship. A revision of APM section 133, dated November 11, 1981 (and distributed in January 1982), contained language distinguishing between persons appointed before and after July 1, 1980, providing that the eight-year rule would still apply to the former. (See Charging Party Ex. 3, App. B.) The import of this change was 17
that employees previously hired as lecturers were fully grandfathered, even if later reclassified to the new titles.9 It should also be noted, regarding formulation of new APM section 63, that University administrators intended to revise the separate APM provision governing lecturers that had previously been in effect for all employees in that title; that is, APM section 283. Blakely referred to this anticipated revision in his May 1980 letter quoted above. According to testimony offered by respondent, this separate policy revision would clarify the existence of dual tracks. As of the formal hearing in this case, the promised revision had not yet been promulgated. D. Implementation of New APM Section 63. The documentary material and testimony offered at the 9A third clarification regarding new APM section 63 was issued by Blakely on June 22, 1981, shortly after but again without apparent connection to the filing of the present charge. In this letter to academic vice-chancellors, Blakely indicated that, •.• [s]ince the vast majority of individuals in the Visiting Lecturer and Visiting Senior Lecturer titles are paid according to standarized salary scales, it appears inappropriate to include these titles with those of other visiting appointees whose salaries are negotiated on an individual basis and who are, therefore, ineligible for range adjustments. The campuses were then informed that salaries for the new classifications could be automatically range-adjusted to allow for cost-of-living raises. 18
hearing provides persuasive evidence in support of several overall findings about systemwide implementation of the new policy. First, when the new APM section 63 was issued in February 1980 it was "effective immediately, 11 with the systemwide administration expecting reclassifications to follow promptly, as Blakely declared in his May letter. Blakely also testified that any variation or exemption from the new policy would require prior systemwide approval. Second, most campuses republished and redistributed the systemwide pronouncement, perhaps with special provisions for those concerns left by express delegation to local campuses, such as the methods to be utilized for review and appointments. Third, campuses began the reclassification process in Spring 1980, for the 1980-81 academic year, and completed the changeover by Spring 1981 for the succeeding academic year, 1981-82. Fourth, once carried out, reclassification did not change an employee's teaching duties. The new visiting and adjunct lecturers continued to teach the same courses and programs as before. In regard to the above findings, there was no evidence introduced by respondent that any campus either attempted or had the authority to alter the basic terms of the February 1980 policy issued by President Saxon; in particular, the creation of new academic titles, the four-year service limitation for those titles, and the distinction on eligibility for security of employment. 19
In addition to testimony and documents relevant to systemwide actions, there was substantial evidence offered about the implementation process at the Berkeley and Santa Cruz campuses. This body of evidence sheds light on the steps taken by the University. 1. Berkeley. At Berkeley, for example, in April 1980, then Vice-Chancellor Ira Michael Heyman reissued the new APM section 63 for action by deans and departmental officials. Heyman stated that existing review procedures that had been utilized previously at Berkeley would continue in effect. He also stated that "range adjustments will not apply" to the new visiting classifications. (But see fn. 9, supra.) Almost a year later, in March 1981, another campus-wide memo was issued by Heyman 1 s successor, Roderic B. Park, regarding the reclassification process. Park had viewed the February 1980 release as the actual, final policy. However, he noted that because the new section had been distributed late in the 1979-80 year, prior commitments had prevented full implementation for 1980-81 but that completion of the process was expected by July 1981.10 lOThe Acting Provost and Dean of the College of Letters and Science, Hugh Mclean, also sent a memo to department chairs on January 27, 1981, informing them about the four-year rule, the need for an FTE commitment before proposing a candidate for security of employment, and the possibility of individual salary requests in lieu of automatic range adjustments. 20
Evidence about one Berkeley employee also illuminated the implementation phase. Merle Woo, a full-time lecturer in Asian-American Studies, a subsection of the Ethnic Studies Department, received notice in April 1980 that she was being reappointed for 1980-81 as a "Lecturer," and that, by the end of the year, she would have accrued nine of twelve quarters of service credit toward security of employment. Previous appointments for Woo made no mention of a twelve-quarter limitation. In May 1981, when Woo was reappointed as a "Visiting Lecturer" for 1981-82, she was told that she would have accrued at the end of that term twelve quarters credit toward SOE. No mention was made at that time regarding termination. Finally, in Spring 1982, Woo was informed that her service would end that June. Her administrative appeal for continued employment beyond the four-year limit was rejected by Provost Robert Middlekauff, after a departmental official disclaimed any authority to alter established University policy. Some conflicts exist regarding the circumstances surrounding woo's expectations. Woo testified that she was promised a security of employment position when she was hired in 1978, after nine years of teaching at San Francisco State. The promise was attributed to a personnel committee, and to two department agents, Ling-Chi Wang, then the coordinator for Asian-American Studies, and Ronald Takaki, a professor who later succeeded Wang as coordinator. One of the agents, 21
Takaki, claimed he was on leave at the time, thereby raising some doubt about Woo 1 s assertion. However, Wang was not called to testify, and no other evidence was offered on this point. Woo also testified that in Spring 1980 she was reassured about her promised SOE position despite the 12-quarter limit that was first stated in her 1980 reappointment letter as a "Lecturer." Takaki denied giving such reassurance. Woo 1 s next letter in 1981, in which she was given the new title of "Visiting Lecturer," again sparked her concern. But Woo only learned about her pending termination several months later, in February 1982, after inquiring about the status of her next reappointment. Finally, Woo testified, without contradiction, that in May 1982 Provost Middlekauff personally told her that the four-year rule was being applied everywhere, and had nothing to do with woo 1 s professional qualifications. When asked, according to Woo, Middlekauff asserted that the denial of security of employment was unrelated to any budgetary issue or loss of an FTE position. Middlekauff was not called as a witness by respondent. On the basis of the testimony offered, as well as respondent's failure to call key witnesses, the administrative law judge finds that Woo was offered a security of employment position when she was hired, contrary to the limited and incomplete denial put forward by the University. The evidence also supports a finding that the new lecturer policy was used 22
as a basis for her premature termination, in apparent contradiction to the 1981 full grandfathering modification of APM section 133. Woo was specific and forthright when questioned about the circumstances of her hiring and eventual separation. The hiring commitment to Woo was also consistent with her extensive prior teaching experience, and with the fact that, until her last year, she was the sole full-time lecturer within Ethnic Studies. Although departmental officials may have been overeager to hire and retain a skilled teacher, and perhaps erred in making an SOE promise without an underlying budgetary allocation, it is found that woo 1 s expectations had been impliedly confirmed by department representatives and, as the Sullivan Report suggested, by the momentum of her reappointment process. These findings are not negated by the fact that Woo, in another proceeding, has charged the University with a discriminatory discharge. Contrary to the argument of University counsel, the claims are not mutually exclusive. Use of the four-year rule as a basis to terminate Woo sheds light on respondent's practice regarding APM section 63, even if it is otherwise shown, in a separate case, that invocation of the rule was pretextual and unwarranted. 23
Last, regarding implementation at Berkeley, there was evidence about meetings in December 1981 and in March and April 1982, between local campus and AFT representatives. At the first of these meetings, local officials stated they had only limited knowledge about campus prerogatives and had no delegated authority to depart from systemwide policy. The campus representatives promised to get back to AFT about several issues that had been raised. In particular, concerns had been expressed about grandfathering those who had been in the old lecturer titles. Months later, in Spring 1982, after local officials were finally able to arrange a subsequent meeting to provide more detailed knowledge about the new policy, campus management and AFT representatives were informed by systemwide analyst Okada, to the apparent surprise of one Berkeley personnel agent, that grandfathering was a local matter for decision by the appointment authority; that is, by the department, subject to approval by the campus administration. The inconsistency between (1) the systemwide assertion about preserving local authority, in accord with Blakely's May 1980 memo, (2) the November 1981 APM revision that fully grandfathered pre-July 1980 lecturers, and (3) the claim by Middlekauff to Woo in Spring 1982, referring to a rigid four-year rule applied 24
everywhere, was never explained by testimony offered by respondent.11 2. Santa Cruz. Although Santa Cruz officials received the new policy in Spring 1980, local concerns delayed initial implementation steps until Spring 1981. Then, on June 2, 1981, Santa Cruz llrt might be inferred from Park's testimony that the Berkeley campus College of Letters and Science had established a four-year rule by an informal policy revision in 1976 and 1977, and that Middlekauff was alluding to that practice. However, the evidence suggests otherwise. First, the Ethnic Studies department is organizationally separate from the College of Letters and Science. Second, Middlekauff's letter to Woo in 1982 made no mention of a local campus rule and, indeed, referred to Woo 1 s appeal of a 11 Systemwide University policy." Third, the memo issued by Letters and Science Acting Provost and Dean McLean in January 1981 similarly made no reference to any established local policy within his domain, but mentioned only the reclassification process and four-year rule flowing from new APM section 63, and designed to be effective by July 1, 1981. Fourth, neither Heyman 1 s April 1980 nor Park's March 1981 memos made any mention of a pre-existing four-year rule, albeit of limited applicability. Fifth, although Park testified that business records in the form of routine meeting minutes would support his claim that a fixed four-year policy applied at Berkeley (in Letters and Science) before President Saxon's February 1980 announcement, those minutes were not offered in evidence despite the express opportunity available to the respondent to do so following the close of the formal hearing. It is therefore concluded that even if some departments within Letters and Science had applied a four-year rule before February 1980, as Park testified, it was not shown that this policy was uniformly known to employees, to employee organizations, or, for that matter, to other management officials. For this reason, it is found that such a rule would not constitute an established past employment practice; nor would it serve as a reconciling explanation for otherwise inconsistent University testimony about rigid University policy that restricted grandfathering. 25
Academic Vice-Chancellor John A. Marcum distributed a proposed Santa Cruz lecturer reclassification policy to other campus management officials. Marcum stated that the new policy would be effective July 1, 1981. The text of the draft was virtually identical in material respects to the draft distributed by President Saxon in February 1980, although some of the provisions were stated in greater detail. One major difference, however, was that the Santa Cruz campus determined to use only the "adjunct" title for reclassified lecturers, instead of also using the "visiting" designation. No reference was made to the grandfathering question. In June 1981 Marcum also began practical implementation of the changeover by issuing reappointment letters for the upcoming 1981-82 academic year that utilized the new 11 adjunct lecturer" classification. In one letter introduced from that period, Marcum made no mention about a limitation on years of service.12 Shortly thereafter, on July 21, 1981, Santa Cruz personnel and labor relations manager Robert R. Bickal issued a notice 12A second letter in evidence, dated November 1981, also used the "adjunct lecturer" title but did refer to a quarter limitation, noting that the appointee could accrue a "maximum sixteen quarters allowed under the University's so-calledfour-year rule." Marcum's sixteen quarters statement was probably an inadvertent error, since it clearly conflicted with the systemwide computation formula, as well as with the formula in the policy statement he distributed the previous June. 26
that purported to defer the locally effective date of the new policy to September 1, 1981, still prior to the academic year for which reappointment letters had been issued. This notice, sent to interested employee organizations including the AFT affiliate, invited comment through meeting and discussion. Bickal 1 s notice followed the filing of the instant charge and an attempt at the informal settlement conference to have the parties resolve the dispute. The July notice, however, made no comment rescinding or placing in abeyance the prior appointment letters that reclassified lecturers for the coming academic year. Nor did the notice draw any distinction between matters within local campus responsibility, subject to discussion, and University-wide policy distributed 17 months before by President Saxon and, presumably, not on the table. Regardless, on August 5, 1981, AFT representatives conferred with campus personnel officials Bickal and Barbara Nielsen. The testimony about that meeting, and the detailed notes taken by an AFT representative and carefully reviewed by Nielsen, substantially support findings that the reclassification and four-year rule were systemwide in nature and that modifications of the basic policy were beyond the authority of the local campus. One substantive issue that was discussed as a local proposition was grandfathering. As to that subject, the AFT was informed that previously employed lecturers working more than 50 percent time could remain, 27
contingent on performance reviews, for up to six years, with a possibility of remaining through the previous eight-year limit.13 Although Nielsen inserted the word "proposed" when she reviewed references to the new policy in the August meeting minutes, she gave the impression that this was a technicality and that the fundamental aspects of the policy revision were, in reality, not tentative at all. Nielsen was not called as a witness to dispute this impression. Also inadequate was Bickals' testimonial effort to support Nielsen's insertion that the new policy was merely proposed in August 1981. Bickal's testimony was weakened by his own noticeable embarrassment attempting to explain the scope of local campus authority. This was also apparent when he was examined about the contradiction between the never-modified Spring 1981 reappointment letters and the subsequent statement(s) that implementation was delayed. Additionally, as corroborative evidence demonstrating the ongoing implementation and effect of the new APM section 63 at Santa Cruz during this period, AFT offered hearsay testimony 13Later, at the formal hearing in May 1982, Bickal statedthat the grandfathering policy was actually a full, eight-year maximum, and not simply the six-years referred to in August 1981. The charging party at the hearing and its brief, has literally jumped to accept this additional concession, while claiming that the inconstancy of the Santa Cruz position has caused confusion and distrust on the part of the AFT. 28
about a lecturer named Donald Rothman, based, in part, on admissions by a Santa Cruz administrator. According to the AFT, Rothman had been promised security of employment and, when the new rule went into effect, was approaching the end of his eight years of service. Instead of simply being transitioned into his permanent status, Rothman was required to compete for an appointment as part of a recruitment search procedure. Although the University offered no evidence to contradict this example, it is given little weight as proof of a systemwide policy altering technical eligibility for SOE. Relevant documents show that the new policy still required a budgeted FTE for such status and continued to allow accrual of temporary lecturer service when an employee switched to the SOE track. Unlike Woe's case, where the new policy was expressly (mis-)applied, Rothman's situation appears to have been a personal grievance unrelated to a new systemwide practice. Last, regarding implementation at Santa Cruz, Marcum issued another cover letter and draft policy in March 1982, stating that implementation was anticipated no later than July 1, 1982. Organizational comments were invited. No mention was made about the presumed effectiveness of the policy and reappointment letters between September 1, 1981 and Marcum's notice seven months later. A principal difference between the June 1981 and the March 1982 drafts was that the latter document adopted the "visiting" lecturer title in 29
addition to the "adjunct" description, thereby placing Santa Cruz back in step with the systemwide policy set forth by President Saxon in February 1980. AFT responded to Marcum's March 1982 announcement by meeting with him on April 8, and by drafting a lengthy analysis of local campus policy on quarterly appointments and on measuring quarterly course loads, subjects normally delegated to local authorities by the systemwide administration. Additionally, the AFT's 1982 comments reminded the Santa Cruz administration about the then-longstanding union criticism of the four-year limitation and the pending unfair practice charge which was scheduled for hearing in May 1982. E. Notice to AFT of the Lecturer Policy Change. Substantial evidence supports the finding, as AFT claimed, that notice was lacking until shortly before this case was initiated. First, and most important, Blakely', as well as University officials responsible for labor-management relations, conceded that prior to this charge being filed they gave no official notice to AFT of the APM policy change either while drafts were being circulated in 1979, or, when President Saxon issued the new APM section 63 in February 1980. These officials included Tom Mannix of the systemwide administration, and Philip Encinio at Berkeley, neither of whom, according to their testimony, even knew about the policy change until after the charge was filed. And, although Blakely testified that under normal 30
procedure a copy of an early draft would have been sent to Mannix' systemwide predecessor for redistribution to interested employee groups, Blakely 1 s recollection was uncertain and there was no additional evidence offered by respondent that the draft actually was passed along. Moreover, as Mannix testified, the University's systemwide administrators did not implement a practice of routine formal notice to non-exclusive employee organizations about proposed policy changes affecting matters within the scope of representation until late 1981. For a period prior to that time certain officials had taken the position that non-exclusive representatives were not entitled to such notice.14 Second, AFT officials convincingly denied having received notice of the lecturer policy drafts and offical revision prior to their own discovery of the fact in mid-1981. According to the charging party, the AFT was not notified about the policy change until Santa Cruz AFT members who were reclassified in Spring 1981 communicated their concerns to the statewide leadership in the University Council, the umbrella organization of AFT affiliates. In turn, the statewide leadership 14The systemwide policy implemented in 1979, after the HEERA went into effect, halting the prior practice of advance notice to organizations about proposed policy changes regarding matters within the scope of representation, is described in fuller detail in Reents of the Universit of California Lawrence Livermore Laborator ) (4/30/82) PERB Decision No. 212 (hereafter Lawrence Livermore Laboratory). 31
investigated the situation, discovered the new policy, and, ultimately, filed the instant charge in June 1981. Contrary to the urging of University counsel, the administrative law judge rejects finding that the Sullivan Report constituted actual notice to AFT of the later changes. This rejection is based not only on the lack of consensus and the tentative nature of the Report, but also on the fact that it was not drafted and circulated as an APM revision or even a formal proposal. Instead, the Report was merely the first step in a gradual process and was expressly intended for further meeting and discussion. Indeed, the new policy contained significant differences from the Committee's proposals, including: different titles, retention of the same salary scale, and, ultimately, a full grandfathering policy as well as accrual of lecturer service as time-on-the-clock for professorial appointments. Third, other evidence offered by respondent to impeach the AFT claim of lack of notice was insufficient. At most, two articles from the statewide AFT newspaper showed inadequate, indirect and unofficial notice after President Saxon's announcement. The first article, in March 1980, was apparently written after vague rumors of a possible policy change were heard at an AFT conference at Santa Barbara in early February 1980. The article focused on the long-term problems some lecturers had 32
had in receiving security of employment, and other criticisms of inferior treatment of lecturers by the employer. The article quoted Blakely and a staff associate about possible future changes. Significantly, their comments focused on a forthcoming policy revision that would enhance security of employment potential: According to Edward Blakely, the administration is developing the policy using the 1978 "Sullivan Report" as a guideline. Blakely said the policy will offer an SOE track for full-time lecturers parallel to the professorial tenure track -- with an SOE review at eight years and an "appraisal" of the candidate's development at four years. No mention was made in the article, or in Blakely 1 s testimony, that AFT was informed in the pre-publication period of the new APM revision that presumably was in its final drafting stage and was due to be issued imminently. The second AFT newspaper article, published in November 1980, also fails to indicate actual notice of the policy change set forth in new APM section 63. In general, the November 1980 article was an organizational appeal designed to inspire membership action on a host of employment practices concerning lecturers. Although the article does contain an ambiguous reference to the University contemplating changes to make it more difficult for lecturers to attain SOE, implying thereby that teaching opportunities would be decreased, no specific policy is cited. Indeed, a fair reading of the 33
article indicates that AFT was concerned with the possible allocation of visiting and adjunct titles to new lecturers, in successive two-year blocks for a total of four years, and was not describing any University plans to reclassify or terminate previously employed lecturers. In any event, the article has limited probative value as evidence of advance notice to the AFT of a policy change since it appeared nine months after Saxon's distribution of the new lecturer policy, and after initial implementation steps throughout the system. The University also offered a smattering of other evidence to suggest advance notice to AFT. None of it, however, is convincing. For example, the employer points out that one member of the Sullivan Committee was a lecturer. However, this individual was also an assistant academic vice-chancellor at the Irvine campus and there was no evidence that she represented AFT on the Committee or was a member of the organization--assuming participation at that level of policy conceptualization constituted notice of the employer's later action. The respondent also argues that Blakely's yearly appearances before the Legislature after 1979 to discuss academic planning were overheard by AFT persons in attendance, and that he assumed the organization knew of the new plans to put a cap on teaching staff services. Yet Blakely could not identify the AFT persons present, and his recollection about the details of his appearances and the subjects raised was incomplete and vague. 34
Similarly unpersuasive is the University's suggestion that AFT learned about the policy change when Blakely was examined, with AFT counsel present, during the PERB unit determination hearings in October 1980. Administrative notice has been taken that, at the time, AFT was a petitioner in proceedings concerning the appropriate bargaining unit for non-Academic Senate employees, including lecturers. Blakely;s testimony reveals that he did refer to new visiting and adjunct title codes as part of a policy change, but his explanation was insufficient and perhaps unintentionally misleading regarding the immediate ramificiations of the change as well as the definition of "visiting" lecturers.15 15see In Re HEERA Professional Units, No. PC-1010 et al., Phase II, Vol. 28 at pp. 18-29, 65-72, 93-94. Although APM section 63 was introduced in evidence and Blakely testified that a reappointment transition process was under-way (id. at p. 27), his direct testimony was clouded on cross-examination. For example, Blakely was vague about the impact of the change: Q. Okay. Now, you talked a little bit about the lecturer series. Is it fair to say that the classifications 1500--I'm sorry, 1600, 1602, 1605, 1 06, 1610, 1615 and 1619~ are classifications which are being phased out? A. I wouldn't say that. I would say that new classifications are being added. Q. Is it the intention of the University to retain these classifications? A. Yes. Q. So that there will be then, instead of 35
Finally, little weight can be given to evidence that AFT representatives at Santa Cruz asked personnel agent Nielsen about a possible policy change as early as Fall 1980. This is so, according to AFT 1 s uncontradicted testimony, because Nielsen responded that she wasn't sure what the policy would look like, and that informal talks were still taking place, presumably between local and systemwide officials. the current seven lecturer classes, there will be 14 lecturer classes? A. Whatever the number that were recited earlier, they would be added to the list. Now, the distribution of individuals would change, but the classes would remain pretty much the same. Q. Is it the intention of the University to continue to place individuals in the seven classes that appear on Exhibit 12? A. Yes. Those--some of those individuals. (Id. at p. 65.) Later, when asked if a person previously classified as a "lecturer" would be reclassified to visiting status, Blakely replied: A. It is possible. It is possible, if they are in fact a visitor. Q. Okay. And when you say if they are in fact a visitor, what do you mean by visitor? A. If they are here for a temporary purpose, they are replacing an existing faculty member, they're offering courses where we're currently recruiting for someone. Q. Who makes that determination? 36
In sum, given the conceded absence of direct and official notice of the substantial change expressed in new APM section 63, the AFT 1 s denial of notice, the insufficiency of the Sullivan Report as a substitute for actual notice of the later change, the failure of the newspaper articles to indicate specific foreknowledge about the revision, and the failure of Blakely or any other witness to convincingly attribute clear knowledge to AFT, it is found that AFT had neither actual nor formal notice of the policy change. E. AFT Meetings with Employer Representatives. AFT representatives had meetings about the new lecturer policy on July 28 and September 11, 1981 with systemwide University agents (including Mannix and Okada); on August 5, 1981 with Santa Cruz personnel officials (including Bickal and Nielsen); and on December 21, 1981 and in March and April 1982 with employer representatives at Berkeley (including Okada}. The charge, as amended, alleges that discussions were not conducted in good faith by the University because, ••• the Regents' representatives were not invested with sufficient authority to come to any agreements or understandings, or make decisions based upon the discussion. In addition, the actions which were the subject of the meet and discuss sessions had already been effected, and were not rescinded prior A. The department, in the manner that I described earlier, they make a proposal. (Id. at p.72.) 37
to the meetings. The Regents essentially presented Charging Party with a unilateral decision not subject to change as a result of said discussions. (First Amended Charge, p. 2.) The University, in the testimony offered and in its brief, has conceded that its representatives lacked authority during the meetings to make agreements regarding modification of the systemwide policy decisions. Further, the lecturer policy was not held in abeyance or rescinded prior to the meetings, although the degree of its effectiveness at Santa Cruz was a matter in dispute. The University claims, for its part, that it was willing to entertain AFT questions at the meetings, and give immediate answers where possible and supplemental responses where required. For example, after the July 28, 1981 meeting at which the range adjustment issue was raised, Mannix supplemented Okada's oral assurance by soon thereafter sending Blakely 1 s June 22, 1981 written clarification to the AFT. University witnesses also testified that they were prepared to receive any AFT proposals for modifications of the lecturer policy. Mannix, for example, stated that although he lacked authority during the meetings to reach agreements with a non-exclusive representative, he was prepared to convey AFT proposals for consideration by officials responsible for promulgating the lecturer rule change. The record is clear that AFT posed inquiries, and engaged in lengthy dialogues and 38
critiques about the new rule. However, since the AFT objected that it could not offer proposals in the face of a fait accompli, its representatives refrained from making concrete suggestions. The principal variation upon this largely uncontested record involved the status of the new policy at Santa Cruz. Throughout the hearing and in its brief, the University took the position that there was (and still is) no revised lecturer policy in effect at Santa Cruz, and thus no fait accompli confronting AFT's representatives. As of the time of the formal hearing, the University contended that, at most, only title changes had occurred and that pre-existing terms and conditions of employment remained in effect. Persuasive evidence, however, supports a finding that, when the parties met to discuss the issue, the basic terms of the revised lecturer policy had been implemented at Santa Cruz by mid-1981. (See pp.25-30, ~ra.) First, the heart of the policy at issue in this case was a systemwide policy for a four-year rule over which Santa Cruz officials essentially admitted, on August 5, 1981, they had no control. Second, initial reclassification letters were sent out in 1981. There was no subsequent disclaimer either rescinding the letters or tolling the accrual of quarterly service under the four-year rule. Third, AFT witnesses present at the August 5, 1981 meeting credibly testified, in accord with the notes of the meeting, that revision of the lecturer policy was 39
predetermined, and that AFT representatives could have influence, if at all, only over subsidiary local matters traditionally left to campus discretion; for example, reappointment review procedures, quarterly course load counting formulas, and so on. Last, even the authority of Santa Cruz officials to determine a grandfathering limit, first omitted from any reference in the June 1981 draft, then stated as six years in August 1981, and later amended to a full eight years during the formal hearing, was presented as a campus prerogative that flowed from a fundamental systemwide policy determination expressed in Blakely's May 15, 1980 letter. Hence, although AFT could discuss at the local level at Santa Cruz (and Berkeley) the campus grandfathering rules, it was unable to meet and discuss a uniform, consistent statewide policy either prior to the 1980 course of action, or, for that matter, at the meetings with Mannix and Okada in July and September 1981. At those latter meetings, the grandfathering policy was stated as a local discretionary subject and Mannix was unwilling to entertain questions that departed from the systemwide limits of his authority.16 16one result of this strict limitation on the meeting agenda was that Mannix eventually terminated the July 28 discussion when he felt that AFT exceeded the scope of the session, as he had fixed it, by raising questions based on local campus examples. 40
CONCLUSIONS OF LAW A. Introduction. The AFT contends that the University unlawfully altered established practice regarding the terms and conditions of lecturer employment, including the maximum duration of full-time service. It is argued that these changes violated the HEERA because the new lecturer policy was adopted without first giving notice to the AFT and an opportunity to meet and discuss the changes. To support this claim, AFT relies on the PERB 1 s decision in State of California (3/19/80) PERB Decision No. 118-S (hereafter Professional Engineers), interpreting the State Employer-Employee Relations Act (Govt. Code sec. 3512, et seq., hereafter SEERA), as well as on subsequent cases applying that precedent under the HEERA. See, e.g., California State University, Sacramento (4/30/82) PERB Decision No. 211-H; Lawrence Livermore Laboratory, supra, PERB Decision No. 212-H; California State University, Hayward (8/10/82) PERB Decision No. 231-H. (Also see Department of Corrections (5/5/80) PERB Decision No. 127-S and Franchise Tax Board (7/29/82) PERB Decision No. 229-S, applying Professional Engineers in other SEERA cases.) Under this line of authority, an employee organization, though a non-exclusive representative, is entitled to advance notice and a reasonable opportunity to meet and discuss in good faith proposals for fundamental changes in terms and conditions 41
of employment. The Board's decisions in this area are intended to preserve, pending the selection of an exclusive representative, rights comparable to those that existed under the George Brown Act (Govt. Code sec. 3525 et seq.), the statutory predecessor to the HEERA and the SEERA.17 The Board has left to case-by-case adjudication a determination of the employment changes covered by this obligation and the precise nature of the duty to provide notice and to meet. In its opposition brief, the University does not dispute the underlying premise that a non-exclusive representative is entitled to advance notice and an opportunity to meet and discuss proposed changes under the Professional Engineers doctrine. The University contends, however, for a variety of reasons discussed below, that its obligations were satisfied under the facts of this case. 17section 3530 states: The state by means of such boards, commissions, administrative officers or other representatives as may be properly designated by law, shall meet and confer with representatives of employee organizations upon request, and shall consider as fully as such representatives deem reasonable such presentations as are made by the employee organization on behalf of its members prior to arrivin at a determination of lie or course o action. (Emp as1s a e .) Also see State Assn. of Real Property Agents v. State Personnel Bd. (1978) 83 Cal.App.3d 206, and East Bay Mun. Employees Union v. County of Alameda (1970) 3 Cal.App.3d 578. 42
B. Changes in Employment Terms and Conditions. There is substantial evidence that the University altered an established policy affecting a fundamental aspect of the employer-employee relationship. Specifically, new APM section 63 replaced the eight-year rule limiting the duration of full-time lecturer appointments with a four-year rule for newly classified employees on the visiting or adjunct lecturer tracks. A supplementary grandfathering policy was also adopted to assist implementation of the changeover. One argument made by the employer, that the continued existence of yearly appointment contracts shows the absence of a change in this case, must be rejected on the basis of the evidence. Although such contracts were used, as provided by the APM, yearly agreements did not represent the sole practice relevant to maximum employment duration for full-time lecturers. If so, this case would not have arisen, nor would the Sullivan Committee have had a reason to exist. Thus, the evidence showed that established cumulative practice was to grant yearly contract renewals, for up to eight years, absent class or program changes, poor performance or financial exigency. The Sullivan Report, as well as numerous witnesses, referred to this practice and the reappointment expectations created thereby. The Board has applied a similar analysis to conclude that the cumulative effect of setting annual wage increases at certain times established a practice that could 43
not be unilaterally altered without meeting and negotiating. Davis Unified School District (2/22/80) PERB Decision No. 116 at pp. 9-11. Also see San Jose Community College District (9/30/82) PERB Decision No. 240 (yearly school calendar established by cumulative practice) .18 It is also relevant to the issue of whether a change occurred that the duties of lecturers on the dual tracks stayed essentially the same after the new policy was promulgated, and that the crucial distinction involved clarification of those lecturers projected to receive SOE. Therefore, it cannot be concluded, as in a layoff or school closing situation, that the University was redefining the tasks to be performed, perhaps for reasons of economic need, and, in that sense, exercising a 18on this issue, the University's reliance on Board of Regents v. Roth (1972) 408 U.S. 564 and related authority is misplaced. In that case, a tenure track employee acquired no reemployment property right by virtue of his one-year appointment. His claim for a pre-termination internal hearing was denied. More on point, in terms of long-term employment expectations, is Perry v. Sindermann (1972) 408 U.S. 593, decided the same day as Roth. In Sindermann, the Supreme Court concluded that a non-tenured employee for 10 years was entitled to produce evidence showing that his legally cognizable expectation of reemployment was breached because of his exercise of free speech. In finding a prima facie case, the allegations of longstanding renewal practice conferring an implied benefit were sufficient to overcome the conceded absence of formal reappointment rights under the employee 1 s one-year contracts. In any event, the AFT is not presenting a civil rights claim on behalf of individual employees, but has invoked the PERB's jurisdiction to vindicate an organizational right to represent employees on an employment-related practice controlling the express terms of a personal agreement. 44
management prerogative over the organization and distribution of work, or over a matter of entrepreneurial necessity. Compare Newman-Crows Landing Unified School District (6/30/82) PERB Decision No. 223; also see First National Maintenance Corp. v. NLRB (1981) 452 U.S. 667.19 Rather, the change to the four-year rule more closely approximates a new rule on termination or mandatory retirement reflecting an employer's discretionary policy preference about how many years certain work should be performed by a single person. See Holtville Unified School District (9/30/82) PERB Decision No. 250 at p. 8, citing Inland Steel Co. (1948) 77 NLRB 1 [21 LRRM 1316], en£. (7th Cir. 1948) 170 F.2d 247 [22 LRRM 2505]; also see The Shaw College (1977) 232 NLRB 191, 203-205 [96 LRRM 1473] rev. in part (6th Cir. 1980) 623 F.2d 488 [105 LRRM 2509]. Further, since the change involved a reduction by four years, or 50 percent, in the maximum duration of employment, there can be no serious dispute that the change affected fundamental aspects of the employment relationship; the job as 19similar or idential prov1s1ons of the National Labor Relations Act (NLRA), as amended, 19 u.s.c. sec. 151, et seq., as construed by the National Labor Relations Board (NLRB) and the courts, may be used to guide interpretation of the HEERA. See, e.g., San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12-13; Fire Fighters Union v. Cit of Vallejo (1974) 12 Cal.3d 608, 616. 45
a whole, as well as wages and hours, in particular. Other PERB cases involving the notice and meeting rights of non-exclusive representatives have concerned changes of comparable or less significance: a yearly wage increase (Professional Engineers); parking spaces (Franchise Tax Board); time clocks (CSU Hayward); access policy (CSU Sacramento). For these reasons, the decision to make the change, and not merely the effects of the decision, would be within the scope of representation under traditional collective bargaining principles. See, e.g., Anaheim Union High School District (10/28/81) PERB Decision No. 177. In keeping with these principles, the HEERA also provides for representation regarding "wages, hours of employment, and other terms and conditions of employment." (Sec. 3562(g) .) In other respects, however, the AFT has not sustained its burden of showing, by a preponderance of the evidence, that additional changes were made in fundamental terms and conditions within the scope of representation. For example, AFT argued that opportunities for SOE were restricted by virtue of the new rule. But no alteration was made in APM's longstanding requirement of a budgeted FTE position as a prerequisite for granting SOE. Also, the APM continues to allow lecturers in the new classifications to apply their accrued years of service toward the eight-year limit if eventually assigned to an SOE slot. In that sense, 46
lecturers in the new classifications remain technically eligible for SOE, as they had been before. And, regarding the claim that a full-scale recruitment search now replaces the prior SOE transition process, there is evidence of only one such instance, involving Donald Rothman at Santa Cruz, and that evidence, aside from being hearsay, has little probative value in showing an alteration of an established systemwide policy. Sufficient evidence is also lacking that the new APM policy altered such traditional aspects of the employment relationship as salary, retirement benefits, travel allowances, and so on. Although one campus administrator concluded that range adjustments did not apply to newly classified "visiting" lecturers, this decision was reversed, apparently because the new policy expressly maintained a salary scale parallel to the scale for permanent track lecturers. Travel expenses for professional advancement also remained discretionary within the department or laboratory, as they had been in the past. In fact, in most respects, the texts of the new and old policies are identical in specifying terms and conditions. In one particular, however, APM 133, as revised following the adoption of APM 63, did entail a change; namely, in barring use of accrued time for lecturer service toward computing the eight-year limit for tenured professor appointments. As the Sullivan Report explained, the University rationale for this policy decision was that research was not a required 47
qualification for lecturer service, but should be a requirement for professors on the tenure track. Thus, it was reasoned that it would be unfair to prejudice those seeking tenure by decreasing the amount of time allowed to meet the productive research qualifications. Nevertheless, by late 1981 this policy change was retracted and professorial time-on-the-clock presently includes, as in the past, service in the new lecturer positions. Assuming, however, that this modification had not occurred, AFT failed to show that time-accrual for tenure positions was a fundamental lecturer concern. First, promotion to the tenure track apparently has been infrequent and outside the normal line of progression. Second, the scope of representation under the HEERA specifically excludes, [P]rocedures and policies to be used for the appointment, promotion and tenure of members of the academic senate •••• ( Sec • 3 5 6 2 ( g) ( 4 ) • ) In any event, even if the subject is within scope, the AFT offered no testimony on this issue demonstrating its fundamental importance. Also, the little evidence presented in respondent's case, derived from the Sullivan Report, suggests a valid management distinction between positions that require research and those that do not. Similarly, there is insufficient evidence that the mere change in title, by itself, warranted advance notice and 48
meeting and discussion as a fundamental aspect of employment relations. Although employees may have subjectively preferred an unadorned lecturer title, believing that the new title symbolizes a demotion, an employer is presumably free to designate the titles it uses to keep track of its employees absent evidence that a new title actually affects employee interests. Here, AFT offered no evidence of objective employee interests regarding the importance of the title alone in the professional field. Rather, the evidence shows that the title change was of demonstrable significance only because it was related to adoption of a four-year duration rule distinguishing two employee categories in terms of predetermined SOE eligibility. Last, the University contends that no change of policy has yet occurred at Santa Cruz. As the evidence demonstrates, however, the systemwide administration's new policy was "effective immediately" throughout the University system and was implemented during the remainder of 1980 and into 1981. The evidence also supports the conclusion that the apparent authority of Santa Cruz officials to delay implementation, and to meet over local issues, did not also extend to altering the four-year systemwide policy distributed by President Saxon. Local delay in implementation may affect the need to apply a remedy, if a violation is found, but a delay does not alter the basic fact that a statewide change occurred. For example, 49
in Newark Unified School District (6/30/82) PERB Decision No. 225, the Board affirmed a finding that a school board 1 s unilateral approval of a layoff resolution was unlawful. But, since actual reductions in force were never fully implemented at specific school sites, there was no need for a reinstatement remedy. C. Notice of the Proposed Policy Change. In its defense to this aspect of the charge, the University first contends that the Sullivan Report and the follow-up meeting(s) in 1978 provided sufficient notice of the eventual policy change to satisfy the University's duty under the Act. The Report and subsequent discussion(s), however, were tentative suggestions as part of a gradual process leading to a formal policy change. The University also indicated that further discussion would occur with employee organizations as the drafting steps proceeded and that the APM would remain operating policy. In the end, the ultimate policy also differed from the Sullivan Report in several ways: title, salary scale, time-on-the-clock, and grandfathering, among others. For these reasons, this case is markedly different from Lipow v. Regents of the University of California (1975) 54 Cal.App. 3d 215, cited by the Regents. In Lipow, substantial meeting and discussion had taken place regarding an actual proposal to modify a section of the APM, and some union 50
suggestions had been accepted by the employer. The court affirmed dismissal of the union's claim that the University did not satisfy its duty to provide notice and to meet with the union in good faith prior to adoption of the proposal. Additionally, the facts in this case are different from those before the PERB in Franchise Tax Board, supra. There, an actual policy change regarding employee parking privileges had been proposed for future implementation and, after the union had notice of the change, the employer met with the union to consider its views prior to the effective date of the new policy. Here, the initial meetings did not provide advance notice of a specific plan or course of action. As a second contention, the University claims that the AFT had sufficient notice of the forthcoming change, at least in early 1980. Indeed, the AFT newspaper articles, in March 1980 and November 1980, reveal that the AFT was aware of possible future changes in guidelines for receipt of security of employment. Yet, there was no evidence in those articles that specifically referred to the cut-back of the eight-year rule that had already occurred. Significantly, Blakely, who was interviewed for the articles in question, offered no testimony that AFT was informed of the rule change even though a year-long drafting process had culminated in President Saxon's policy announcement on February 22, 1980. Other evidence of AFT awareness of rumors of possible 51
changes amounted to no more than that; for example, the inquiry to Nielsen in Fall 1980 by a Santa Cruz AFT representative, or Blakely's legislative testimony being overheard by AFT members. As stated in similar circumstances: .[C]onjecture or rumor is not an adequate substitute for an employer's formal notice to a union of a vital change in working conditions •••• (NLRB v. Rapid Bindery, Inc. (2d Cir. 1961) 293 F.2d 170 [38 L 2 at 1663] .) And, even if Blakely referred to the new policy in the PERB unit hearings in October 1980, his testimony was less than clear as to its scope and impact. Regardless, the employer offered no evidence to support a conclusion that a testimonial disclosure to counsel in a complex, lengthy proceeding provided a satisfactory basis to make an agency finding attributing knowledge to the organization itself. Cf. Los Angeles Community College District (10/18/82) PERB Decision No. 252, at pp. 17-18. In the final analysis, substantial evidence supports the AFT's claim that advance notice was not given in this case. AFT representatives unequivocally denied receiving such notice. Their testimony was not discredited. And University officials in a position to inform AFT, in accord with the promises made in 1978 after the Sullivan Report issued, testified that they gave no direct formal notice to the union about the later drafts and President Saxon's pronouncement. These officials included Blakely, with chief responsibility for 52
preparing the rule change, Mannix; the University's systemwide labor relations manager, and Encinio, Berkeley's labor relations coordinator. In fact, Mannix and Encinio testified that they didn't even know about the change until the present charge was filed. The conclusion that advance notice was not given is also consistent with University policy at the relevant time. In 1979 and 1980, after HEERA went into effect, the University had halted its past practice of providing advance notice to employee organizations regarding changes that affected terms and conditions of employment within the scope of representation. The PERB has held, in Lawrence Livermore Laboratory, supra, that this policy change was itself a violation of the HEERA. On the notice issue, viewed charitably, the academic policy-making branch of the systemwide administration operated with an unspoken assumption that others within the University apparatus, either systemwide labor officials or local campus managers, were undertaking responsibility for securing employee organization feedback in 1979 and 1980. Unfortunately, and perhaps not surprisingly in such a large institution, this unspoken assumption was not carried out since normal communication procedures were not utilized either by Blakely's office or by local chancelleries. AFT should not be required now, simply because it may have had inklings that changes were 53
in the wind, to pay the price for the University's failure to provide continuing notice as the University had promised in 1978. D. Meeting and Discussion About the Policy Change. The University's first line of defense to this aspect of the charge is that the 1978 meeting(s) after issuance of the Sullivan Report satisfied its duty to meet with the union. As noted above, however, both the Report and the follow-up consultation were cast in a tentative framework and did not involve an actual proposal to modify employment conditions. The University promised that additional opportunities would be available to AFT to comment once the drafting process was further along. Again, the Lip w decision is distinguishable since the union in that case was on notice that formal changes to modify the APM were being discussed and that final adoption was forthcoming. The University's secondary defense, that the 1981 meetings at systemwide and local levels were sufficient as a good faith means of entertaining AFT views, is also without supportive evidence. As the PERB has stated, in connection with the timing of an employer's action as an indication of its state of mind, ••• the obligation imposed by the statute ••• with respect to non-exclusive representatives is to provide a reasonable opportunity to meet and discuss wages withthem prior to the time the employer reaches 54
or takes action on a policy decision. (Professional Engineers, supra, at p. 10; emphasis added.) Here, not only did the meetings occur 17 months or more after-the-fact, but the University never gave any indication that the new rule had been placed in abeyance or was rescinded. At best, AFT was in a position in 1981 of consulting about why the status quo should be restored, without any University indication that such a possibility would be seriously considered. For this reason, the facts are distinguishable from those in Department of Corrections, supra, cited by the University. In that case, the employer expressly delayed implementation of new policies regarding on-site organization rights pending discussion of union views. Additionally, the absence of authority by University representatives to reach agreements modifying the previously adopted systemwide policy is an indication that the employer did not approach the 1981 meetings with the requisite good faith. In comparison, in Franchise Tax Board, supra, the Board found that one factor supporting a good faith finding was that the employer's meeting representatives had the necessary authority to reach modifying agreements with the union. Even if the absence of authority is not conclusive evidence of an employer's bad faith when meeting with non-exclusive employee organizations pursuant to Professional Engineers, several factors add to the importance of the lack of authority 55
within the totality of circumstances. These factors include the serious nature of the policy change, the fact that it was 17 months old by the time of the first meeting in June 1981, the admitted lack of official notice of the February 1980 decree, and, possible settlement of the pending unfair practice charge. Taken together these factors warranted a responsive overture by the University beyond the simple motions of attending a meeting prior to reporting to higher officials. See, e.g., NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229, 231-232 [45 LRRM 2829] .20 The University nevertheless contends that the AFT did have an opportunity to present proposals to modify the already adopted policy revision and yet declined to offer suggestions, thereby waiving its right to complain about the employer's conduct. But the AFT's failure to make concrete proposals does not bar a finding of employer bad faith since the AFT also stated its objection to meeting over a fait accompli. This conclusion might differ had the employer given some hope or 20The University posture during the 1981 talks was in contrast not only with legal principles requiring good faith, but with everyday understandings about interactions. For example, according to the dictionary, one definition of "listen" is "to hear with thoughtful attention, consider seriously, heed," and a definition of "discuss" implies "a reasoned conversational examining, esp. by considering pros and cons, and an attempt to clarify or settle •.• " (Webster's International Dictionary, unabridged (1976).) 56
assurance that the policy would be rescinded or held in abeyance while the union's views were being seriously considered. The University did not choose such a course. Under such circumstances, absent indication of a true open mind on the University's part about a decision not firmly made, the AFT could reasonably believe that formulation of modifying proposals would be futile. See San Mateo County Community College District (6/8/79) PERB Decision No. 94 at p. 22, citing Caravelle Boat (1977) 227 NLRB 1355 [95 LRRM 1003]. In other respects, however, the AFT has not demonstrated bad faith at the campus level regarding matters delegated by the systemwide administration to local management. To the extent Santa Cruz officials met with the AFT about implementation of local aspects of the new policy, there is insufficient evidence of bad faith by the employer. Testimony and documentary evidence about the August 1981 meeting and the follow-up discussions in 1982 indicate that there was substantial give-and-take over local issues such as course-load and quarterly service formulas. These issues were reserved to local authorities under established policy both before and after the new APM section 63 was adopted. Less evidence was introduced regarding the Berkeley campus meetings in late 1981 and early 1982. At most, however, the AFT showed only that local officials were unfamiliar with the new systemwide policy, particularly the grandfathering rules, 57
and were thus unprepared to discuss local aspects of that unilateral decision. Local efforts to get more detailed information from systemwide administrators were unavailing for several weeks. As such, AFT's complaint of bad faith focuses not upon the local agents but upon confusion surrounding initial formulation and implementation of the policy. If not incriminating as to Berkeley, perhaps this evidence adds another indication of systemwide bad faith since local authorities were apparently given little guidance in dealing with union representatives on the issue. E. Statute of Limitations. Respondent's final defense is based on section 3563.2(a), of the Act, which provides in relevant part: ••• that the board shall not issue a complaint in respect of any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. AFT's charge was filed on June 3, 1981, clearly more than six months after the February 22, 1980 systemwide policy change announced by President Saxon. However, AFT convincingly denied knowledge of the rule change until Spring 1981, when members expressed their concerns about title changes at Santa Cruz; and, the University's key representatives--Blakely, Mannix--admitted they provided no direct official notice. Nor did respondent introduce any evidence that AFT bore the burden to know about the new policy decree more than six months prior 58
to the charge. To the contrary, the University 1 s representatives at the June 1978 meeting promised to keep AFT informed and involved in the policy formulation process and, by such conduct, could have lulled AFT into a sense of security about forthcoming opportunities to express union views. Similarly, neither rumors at Santa Cruz about potential changes in Fall 1980, nor Blakely 1 s interview with the AFT newspaper, nor his legislative testimony, nor the PERB unit hearing record, offer substantial evidence that AFT should have known about the parameters and effect of the new four-year rule. It is striking, on this point, that there was ample opportunity during the relevant time period for Blakely to provide such information to AFT agents. However, as he conceded, he never gave direct, official and unambiguous notice of the policy change and merely assumed that other University officials were informing union organizations. In sum, since the University has not demonstrated that AFT clearly and unequivocally knew or should have known about the new policy and its effect more than six months prior to filing the charge, the time-bar affirmative defense has not been sustained. ACF Industries, Inc. (1978) 234 NLRB 1063 [98 LRRM 1287]. Alternatively, based on the University 1 s representations in June 1978 promising further opportunity for union comment before an actual policy change was proposed and made, and the AFT 1 s apparent reliance thereon, the employer 59
should be estopped from asserting the statute of limitations defense. San Dieguito Union High School District (2/25/82) PERB Decision No. 194 at p. 15. F. Violations. Based on the above analysis, it is concluded that the University, without justification, failed to give the AFT advance notice and a reasonable opportunity to meet and present its views prior to the employer arriving at a decision to alter a fundamental aspect of the employment relationship. Under the Professional Engineers doctrine, respondent's conduct was unlawful in two ways. First, the employer's action deprived AFT of its organizational right to represent employees under the Act, in violation of section 357l(b). The AFT was required to rely on the employee grapevine, was hampered by vague and incomplete information, and could meet only over a fait accompli. Second, respondent's action concurrently violated section 357l(a): employees were inherently harmed by interference with their right to be represented by the AFT prior to the employer's decision. This conclusion is reinforced because the AFT was already on record, on behalf of the same employees, as having an interest in the eventual decision. In its response, the University has not come forward with any defense reasonably based on operational necessity sufficient to outweigh the interests of the AFT and lecturer employees, and the balance must therefore be struck in their favor. 60
REMEDY Section 3563.3 of the Act states: The board shall have the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including, but not limited to, the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. The traditional remedy for an employer's unilateral decision to change a term or condition of employment includes an order that the employer cease and desist, meet with the union upon request, and make employees whole by restoring the status quo and other benefits previously received. See, e.g., Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App. 3d 1007, 1014, citing Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203 and Office and Professional Emp. Int. U., Local 425 v. NLRB (D.C. Cir. 1969) 419 F.2d 314 [70 LRRM 3047]. Normally, back pay owed as a result of unlawful action would be computed, with interest, from the date on which an employee's job was terminated until the date such termination would have been permissible (for example, for financial reasons, unsatisfactory work, program cancellation, and similar causes); or, until the wrongdoing is cured by an actual reinstatement offer or sufficient employer bargaining with the union. Gorman, Basic Text on Labor Law (1976), p. 533. The University advances several arguments against utilizing this traditional approach: 61
•.• given the unusual factual circumstances of the case at bar, the remedy should be quite narrowly drawn. It should affect only those lecturers initially appointed under the"old" rule and adversely affected thereby, i.e. individuals who were not reappointed because of the existence of the new rule. It ~not require reappointment of lecturers who would not otherwise be reappointed because of programmatic changes, financial exigencies or unsatisfactory work performance. Further, it should not extend beyond the Berkeley and Santa Cruz campuses since charging party introduced no evidencewhatsoever as to the situation existing at any other campus or laboratory of the University of California. In addition, at the time respondent issuedthe new policy no obligation to meet and discuss proposed changes affecting an employee's wage or hours had been imposed on public sector employees by the PERB. Instead, the only relevant PERB decision was to the contrary. (Respondent's Brief at pp. 39-40; citation omitted; emphasis in original.) The University contends, therefore, that any remedy should be restricted along the lines stated, and should include only a limited restoration of the status quo and a partial make whole award. In the University's view, such a remedy would be comparable to the NLRB's in Transmarine Navigation Corp. (1968) 170 NLRB 389 [67 LRRM 1419], cited with approval in Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 862. The University's suggested narrowing of the traditional remedial approach is rejected. First, although the employer correctly observes that the 62
Professional Engineers decision under SEERA in March 1980, one month after President Saxon's announcement, implicitly modified pre-existing Board precedent under the Educational Employment Relations Act (see San Dieguito Union High School District (9/2/77) PERB Decision No. 22), the lack of clear precedent under the new HEERA does not alone provide a defense to the charge nor grounds for limiting the remedy. Anaheim Union High School District (3/26/82) PERB Decision No. 201 at pp. 6-7. And, despite early precedent under different legislation, the University was presumably aware of the potential shift in the Board's analysis as well as the remedial hazards for unilateral action denying organizational rights. For example, five months before President Saxon's distribution, in Santa Monica Community College District (9/21/79) PERB Decision No. 103, aff. (1980) 112 Cal.App.3d 684, the PERB had strengthened the representation rights of non-exclusive representatives, distinguishing and limiting San Dieguito in the process. Administrative notice also has been taken of a case relied upon by the University in favor of a narrow remedy. It is revealing that in that case, just three weeks before the new lecturer policy was announced, the PERB secured an injunction against the University to restrain unilateral action that extended the printing plant work week. (See Printing Trades Alliance v. Regents, Case No. SF-CE-5-H, proposed decision 9/28/82; and PERB v. Regents of the 63
University of California, Alameda County Superior Court, No. 529-614-1.) Moreover, the University's new policy under the HEERA of declining to give advance notice of employment changes to non-exclusive representatives was already under attack. (See Lawrence Livermore Laboratory, supra.) It must be assumed the University was on guard about legal dangers it faced if the same policy remained in effect. Also, the February 1980 policy decision was followed within a few weeks by Professional Engineers, but in succeeding months the University distributed clarifications and revisions at systemwide and local levels, again without advance notice to the AFT. Under such circumstances, when weighing the equitable considerations raised by the employer, it is apparent that the University was not as ignorant of its responsibilities as it presently suggests. Even assuming some uncertainty as to the state of the law, its conduct was not later reformed once there was ample evidence of a change in PERB policy. The University's academic and labor relations staff consciously accepted the remedial risks entailed in the course of action it chose to pursue. At this late date, lecturers affected by the policy switch, whose representative had been promised further opportunity for comment in 1978, should not be denied, on equitable grounds, the full relief to which they otherwise would be entitled. 64
Second, since it has been concluded that the eight-year rule change involved a decision, and not merely the effects of a decision, that typically would be within the scope of representation, the reference to the Transmarine remedy is misplaced. That remedy is usually reserved for cases involving a decision basic to management's entrepreneurial control, such as a plant closing, business sale or redistribution of productive work (Highland Ranch v. Agricultural Labor Relations Bd._, supra, 29 Cal.3d at 862-864), with the related problem, if a full remedy were used, of substantial hardship for third parties working at another location or with new jobs (Solano Community College District (6/30/82) PERB Decision No. 219). This case involves a different situation. Simply stated, the employer offered no evidence of business necessity for its decision to establish a new policy mandating termination after four years of full-time service. The same work continued to be performed by others with less seniority, or, potentially, by the same employees but working less than 50 percent time. Although the total adjusted payroll for employees doing full-time lecturer work would be lower once four years of additional longevity raises were eliminated, there was no showing that overall cost-savings was a significant factor, much less that economic concerns compelled the decision that was made. Any notion that the University ha~ to act in the fashion and when it did, disregarding a known union interest, 65
is undermined by the obvious lack of haste in arriving at an institutional change that had its first stirrings in 1977 when the Sullivan Committee was created. It took more than two years, from January 1978 until February 1980, for production of the final APM policy revision; and, after that, nearly two more years, from February 1980 to January 1982, for ongoing revisions and clarifications to be generated. Regarding a third employer contention, no distinction need be drawn between lecturers hired before and after July 1, 1980, the University's proposed implementation date. All of the employees covered by the changeover were within the group previously represented by the AFT, as well as within a potential bargaining unit, the integrity of which could be adversely affected if only the pre-existing staff were protected against the rule change. If otherwise, what would prevent an employer from continuously whittling away at a potential unit by repeatedly taking actions that would deny future employees the benefits of ongoing representation? Further, the University failed to produce persuasive evidence that the AFT had notice, before Spring 1981, that the employer was no longer applying the eight-year rule across-the-board to new hires after mid-1980. The best evidence demonstrating a clear-cut distinction between the two employee types was not actually in force until the APM was again revised in late 1981. (See Charging Party Ex. 3, App. B.) 66
In any event, if the University promptly applies the remedy ordered in this case, and, upon AFT's request, satisfies the employer's duty to meet and discuss in good faith a proposed change in the eight-year rule, those employees hired after mid-1980 might still be subject to a shorter duration of employment. If this result comes to pass, and in light of the 1981 APM revision fully reinstating the eight-year rule for lecturers hired prior to July 1980, it is conceivable that the University will not retain anyone longer than it previously intended. It is this irony, in the long run, that shows the limited nature of the AFT's right to meet and present its views. This irony also underscores the University's shortsightedness, once AFT knew of the change and filed its charge in June 1981, in failing to enter good faith talks with a fresh slate by rescinding or holding in abeyance the new duration policy. The University's fourth suggestion, to restrict any remedy to Berkeley and Santa Cruz, must also be rejected. Since the charging party's allegations referred to unilateral changes "at the University of California and at the Santa Cruz campus," using the conjunctive, the University had adequate notice that an order could apply to a systemwide policy even if the policy required local application to be fully carried out. And, contrary to the claim of the employer's counsel, quoted above, there was substantial evidence regarding implementation of the 67
policy changes at other University campuses. Testimony by Blakely and Okada showed, without contradiction and in accord with President Saxon's directive, that all campuses (with the possible partial exception of Santa Cruz), had undertaken steps to reissue the new policy and to fully implement the changeover by July 1981. PERB precedent is also consistent with applying the remedy to the systemwide governing level. In Lawrence Livermore Laboratory, supra, a systemwide policy was illuminated by evidence related to implementation at a particular worksite. The ultimate remedy, however, applied throughout the system. Finally, the University has made a premature proposal to limit reinstatement to those "who would not otherwise be reappointed because of programmatic changes, financial exigencies or unsatisfactory work performance." Questions related to the appropriateness of a remedy for a specific employee within a larger class entitled to relief are best resolved in compliance proceedings after the order has become final. Alum Rock Union School District (9/22/81) PERB Decision No. Ad-115 at p. 9, citing NLRB v. Rutter-Rex Mfg. Co. (5th Cr. 1957) 134 F.2d 594 [40 LRRM 2213]. Nevertheless, to assist the smooth functioning of the reinstatement process, and provide an opportunity for the University to frame its objections in specific cases, former employees will be required to notify respondent of a request for reinstatement within 45 68
workdays of the final order. Further, to minimize disruption, if the University prefers, reinstatement can take place at the start of the next academic session. The order should also include a requirement that the University post a notice incorporating the terms of the order. The notice should be subscribed by an authorized agent of the Regents of the University of California indicating that it will comply with the terms thereof. The notice shall not be reduced in size. Posting such a notice will provide employees with notice that the employer has acted in an unlawful manner and is being required take the prescribed remedial measures. It effectuates the purposes of the HEERA that employees be informed of the resolution of the controversy and will announce the University's 's readiness to comply with the ordered remedy. See Placerville Union School District (9/18/78) PERB Decision No. 69. Also see Pandol and Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 587; NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415]. For similar reasons, and to assist the reinstatement process, a copy of the notice should be mailed to lecturers no longer employed in that capacity by the University, but who were so employed on February 22, 1980. These former employees may have been affected by the University's unlawful action and would therefore be entitled to relief. Oakland Unified School Dist. v. Public Employment Relations Bd., supra, 69
120 Cal.App. 3d at p. 1015, aff. Oakland Unified School District (4/23/80) PERB Decision No. 126. Notice to said employees should be sent to their last known address in the absence of present knowledge about a former employee 1 s whereabouts. PROPOSED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to section 3563.3 of the HEERA, it is hereby ordered that the Regents of the University of California and its representatives shall: 1. CEASE AND DESIST FROM: (a) Interfering with the right of employees to representation by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more than 50 percent time without first giving notice to interested employee organizations and, upon request, discussing that subject pending the selection of an exclusive representative for the employees affected; (b) Denying employee organizations a reasonable opportunity to represent employees by arriving at a determination of policy or course of action reducing the maximum duration of employment for lecturers teaching more than 50 percent time without first giving notice to interested employee organizations and, upon request; discussing that 70
subject pending the selection of an exclusive representative for the employees affected. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE HIGHER EDUCATION EMPLOYER-EMPLOYEE RELATIONS ACT: (a) Reinstate the policy of allowing a maximum duration of eight years employment for lecturers teaching more than 50 percent time, to be applied retroactively to those so employed on and after February 22, 1980; (b) Upon request, reinstate those lecturers teaching more than 50 percent time as of February 22, 1980, who are no longer so employed and whose lecturer employment thereafter would not have been terminated but for application of a new policy limiting employment of lecturers teaching more than 50 percent time to a maximum duration of four years. Reinstatement shall be made at the beginning of the next academic quarter, semester or special session, as appropriate, unless the employer is prepared to offer reinstatement prior to the succeeding academic period. Requests for reinstatement must be made to an employee's previous appointing authority within 45 workdays of the final order of this proceeding, provided adequate notice of the order has been transmitted to said employees at their last known address if their present whereabouts are unknown. (c) Make reinstated lecturers whole by paying them for any loss of pay and other benefit(s) resulting from 71
termination pursuant to a new policy limiting lecturer employment at more than 50 percent time to a maximum duration of four years. The total amount of this award shall be offset by the amount of earnings received as a result of other employment during this period. The employer's make whole obligation shall cease upon occurrence of the earliest of the following conditions: (1) the date on which termination would have been permissible in the normal course of University business; or, (2) the effective date of an actual reinstatement offer that is not thereafter accepted; or, (3) 45 workdays after the order has become final and no request for reinstatement has been received, provided adequate notice of the final order has been given; or, (4) satisfaction of the employer's duty to meet and discuss, upon request, a proposed policy affecting the maximum duration of lecturer employment. (d) Pay 7 percent interest per annum on the net amount of back-pay owed pursuant to the make whole provision of this order. (e) Upon request of the University Council of the American Federation of Teachers, meet and discuss any proposed change in the maximum duration of employment for lecturers teaching more than 50 percent time, providing said organization a reasonable opportunity to present its views prior to the employer arriving at a determination of policy or course of action. 72
(f) Within five (5) workdays after this decision becomes final, prepare and post copies of the NOTICE TO EMPLOYEES attached as an appendix hereto, for at least thirty (30) workdays at its headquarters offices and in conspicuous places at locations throughout the University system where notices to employees serving as lecturers are customarily posted. It must not be reduced in size and reasonable steps should be taken to see that it is not defaced, altered or covered by any material. (g) Within fifteen (15) workdays after this decision becomes final, prepare and mail a copy of the NOTICE TO EMPLOYEES to lecturers no longer employed in that capacity by the University, but who were so employed on February 22, 1980. Notice to said employees should be sent to their last known address in the absence of present knowledge about a former employee's whereabouts. (h) Within twenty (20) workdays from service of the final decision herein, give written notification to the San Francisco Regional Director of the Public Employment Relations Board of the actions taken to comply with this order. Continue to report in writing to the regional director thereafter as directed. All reports to the regional director shall be concurrently served on the charging party herein. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision and Order shall 73
become final on December 22, 1982, unless a party files a timely statement of exceptions. In accordance with the rules, the statement of exceptions should identify by page citation or exhibit number the portions of the record relied upon for such exceptions. See California Administrative Code title 8, part III, section 32300. Such statement of exceptions and supporting brief must be actually received by the Public Employment Relations Board at its headquarters office in Sacramento before the close of business (5:00 p.m.) on December 22, 1982, or sent by telegraph or certified United States mail, postmarked not later than the last day for filing in order to be timely filed. See California Administrative Code, title 8, part III, section 32135. Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall be filed with the Board itself. See California Administrative Code, title 8, part III, sections 32300 and 32305 as amended. Dated: December 2, 1982 --~ ~rdBARRY WINOGRAD Administrative Law Judge 74
2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
October 29, 1986
Thomas Dublin, President
University Council, AFT
13434 Calais Drive
P.O. Box 2181
Del Mar, CA 92014
Susan M. Thomas, Attorney
Office of the General Counsel
590 University Hall
Berkeley, CA 94720
RE: Regents of the University of California
Case No. SF-CE-57-H; PERB Decision No. 359-H
Dear Parties:
The Public Employment Relations Board received on
October 27, 1986 Mr. Dublin's letter stating that University
Council - American Federation of Teachers withdraws with
prejudice the unfair practice charge in Case No. SF-CE-57-H.
rdingly, the decision in this case, PERB Decision No.
H, is hereby vacated.
Sincerely,
Charles L. Cole
Executive Director
V A C A T E D by C ole Letter o f O cto b er 29, 1986
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL, AMERICAN
FEDERATION OF TEACHERS and
AFT LOCAL 2199,
Charging Parties,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Respondent.
)
)
)
)
) Case No. SF-CE-57-H
PERB Decision No. 359-H
November 23, 1983
)
)
)
)
)
)
)
____________________________________________ )
Appearances: Robert J. Bezemek, Attorney (Bennett & Bezemek)
for University Council, American Federation of Teachers and AFT
Local 2199; Milton H. Gordon, Attorney for The Regents of the
University of California.
Before Tovar, Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: This case is before the Public
Empl G yment Relations Board (PER® or Board) on exceptions filed
by both! Che University Council, American Fcrieratton of Teachers
ard AFT Lora1 2199 {AFT} a n d T hc Regents tf the Uciversity of
Californe a (UC or University) to the adtbnrstrrtihe iaw judge's
(ALJ ) attached propored detis ion. In e^c^r^c}ral, tee Cniversity
takes exctttion to the ALJ 1s fendings that it violated
subcections 3571 (a) and (b) of thelirhxr Etucation
Emplttcr-Emxtocce ReRations A ci {HEhIAi}1 ty uniRatrrtlly
iHEERA is codified at Government Code section 3560
reducing
the
maximum
duration
of
full-time lecturer positions
without providing
AFT
with
advance
notice
and a
reasonable
opportunity to
meet
and
present
its
views.
AFT's
exception
seeks
modification of the
ALJ's remedial
order.
The
Board
has reviewed
the record
in
light
of the
parties'
exceptions
and
finds
that
the
ALJ 1 s
findings of
fact
are
free
from
prejudicial
error
and
adopts
them
as the
findings of
the
Board
itself.
DISCUSSION
In
the
main,
exceptions
raised
by
the University
reiterate
contentions raised
and
fully
discussed
by
the
ALJ.
For
the
reasons expressed in the attached
proposed
decision,
we
summarily
affirm
the conclusion
that
the
University
was
obligated by
HEERA
to
meet
and
discuss the
lecturer
policy
changes with
AFT,
the nonexclusive
employee
representative.
et
seq.
Unless otherwise
indicated,
all
statutory
referencesare to the
Government Code.
Section
3571
provides, in relevant
part,
as follows:
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 coerceemployees because of
their exercise of
rights
guaranteed
by
this chapter.
(b) Deny
to
employee
organizations rightsguaranteed to
them by
this chapter.
2
State of California (Professional Engineers in California
Government (PECG)) (3/19/80) PERB Decision No. 118-S;
California State University, Sacramento (4/30/82) PERB Decision
No. 211-H; Regents of the University of California (Lawrence
Livermore National Laboratory) ( 4/30/8 2) PERB Dec is ion
No. 212-H; California State University, Hayward (8/10/82) PERB
Decision No. 231-H~ State of California, Department of
Corrections (5/5/80) PERB Decision No. 127-S; State of
California, Franchise Tax Board (7/29/82) PERB Decision
No. 229-S.
We also affirm the factual conclusion that the established
cumulative practice was to grant lecturers yearly contract
renewals for up to eight years, ab~ent class or program
changes, poor performance or financial exigency. Those cases
cited by the University in its exceptions are, as the ALJ
noted, misplaced. AFT's charge is not constitutionally founded
nor based on any acquired property right. The charge does not
seek job security per se for any individual employees. Rather,
AFT charges that UC unilaterally altered the established
practice of reappointing lecturers. While such a past practice
might not establish a cognizable property interest in future
employment, the evidence is sufficient to establish that, in
the past, a condition of lecturers' employment at UC included a
reasonable expectation that contracts would be renewed for up
to eight years.
3
We
likewise
reject
UC's
argument
that,
since
the
policy
change
only affected possible future
employment,
it
did not
adversely
affect
the
present
employment
conditions.
This
argument
is
unpersuasive.
The
critical
question
is
not whether
lecturers
held
iron-clad expectations
that
they
would be
reappointed but whether,
before the
policy
change,
they could
be
reappointed.
Thus,
since
the
policy
reduced
the
maximum
employment
period
from
eight to
four
years,
it
clearly effected
a
fundamental
change
in
working
conditions.
It
imposed
a
maximum
term
of
employment which
reduced
the
lecturers'
reemployment
expectancy by
one-half.
Citing subsection
3563.2(a) ,2
UC
argues
that
the
instant
charge
is
barred
by
the
six-month
statute
of
limitations
period.
It
asserts that
the
new
adjunct
and
visiting lecturer
policy
was
issued
on
February
22, 1980,
more
than
six
months
prior
to
June
3,
1981, the date the
instant
charge
was
filed.
In
this
exception,
UC
argues
that
AFT
was on
notice
that
the
lecturer
policy
was
being
altered
beginning
in
1980, and
it
failed
to
file
a
timely charge.
The
ALJ's
decision,
at
pp. 50-54,
fully
addresses
this
contention,
and
we
adopt
his conclusion
that
none
of the
cited
events afforded
AFT
adequate notice of the policy
change.
The
21n
pertinent part, subsection 3563.2(a) precludes theBoard from
issuing
a
complaint with regard to
any charge basedupon an
alleged unfair practice occurring
more than six
months
prior to the filing of the charge.
4
Sullivan report and subsequent discussions were tentative in
nature. These events provided no notice of a specific plan or
course of action. Various rumors of which AFT was said to be
aware likewise failed to provide sufficient notice. As aptly
noted by the ALJ:
[C]onjecture or rumor is not an adequate
substitute for an employer's formal notice
to a union of a vital change in working
conditions . • . . (NLRB v. Rapid Bindery,
Inc. (2d Cir. 1961) 293 F.2d 170
TI8LRRM 2658].)
We similarly reject UC's contention that various articles
appearing in AFT newspapers establish AFT's awareness of the
forthcoming change. These articles refer to the possibility of
future changes in guidelines for receipt of security of
employment; they do not refer to the eight-year rule.
Moreover, AFT witnesses unequivocally denied receiving notice
and, as the ALJ specifically concluded, their testimony was not
discredited. UC witnesses likely to inform AFT testified that
they gave no direct, formal notice to the union. Indeed,
Thomas Mannix, Director of Collective Bargaining Services for
UC, and Philip Encinio, Manager of Employee Relations for UC,
testified that they did not know about the policy change until
AFT initiated the instant charge. We find from these facts
that the University did not afford the employee organization
adequate notice in advance of the policy change.3
3While in no way affecting the conclusion reached, we
specifically disavow the ALJ's reference to the fact that the
5
UC
also
argues
that
it
satisfied
any
obligation
it
had
to
meet
and
discuss
the
lecturer
policy
change.
The ALJ
concluded
to
the
contrary,
finding
that
the
meetings
held
in
1981
occurred
after
the
new
rule
had
been
issued.
We
agree.
UC
<lid
not
place
the
policy
in
abeyance
or
rescind
the
newly
enacted
rule.
Whatever
input
AFT
representatives
were
afforded during
these
meetings
was
too
late
in the process
to
be
more
than
a
request
for
resumption
of
the
status
quo.4
UC
also disputes
the conclusion
that
it
failed
to rescind
or
hold
the
policy in
abeyance.
It
maintains
that,
since
only
the four-year
rule
fundamentally
affected
the
lecturers'
terms
Sullivan report differed
from
the eventual policy
as issued by
the University.
Our
assessment
of the
sufficiency
of the
actual
advance
notice
provided
does
not
depend
on
the
form
the
notification
may
take.
Thus, while
conjecture or rumoraoesnot supply
sufficient
notice
(Rapid
Bindery,
supra), neither
is
it
essential that
the
union
be
provided with formal
notice ofthe intended change. See
Morris,
The
Developing Labor
Law,
Second
Edition,
Vol.
I,
p.
648.
The
pertinent
inquiry
is
whether the employer's conduct
was
reasonably
calculated toadvise the
union
of
an impending
or contemplated
change
and
of
its
opportunity to participate
in
that
decision-making
process.
In the circumstances of the
instant case,
insufficient
notice
was
provided.
4The
University objects to the ALJ's finding
that
the
University representatives
who
eventually
met
with
AFT
lacked
authority to
alter
systemwide
policies.
Mannix
te~tified that
he was
authorized to carry
AFT's
suggestions to persons with
the authority to
alter
systemwide
policies.
We
find that
no
lack of
good
faith is
demonstrated
by such an
arrangement,
particularly
where
UC
1 s
responsibility
was
to discuss the
policy with
AFT. However, our agreement with the University's
position that its
representative did not lack
sufficientauthority in
no way
disturbs
our conclusion that the
discussions
which followed the policy enactment
failed to
satisfy
UC
1 s
obligations
under HEERA.
6
and
conditions of
employment,
the
authority
of
each
campus
to
"grandfather"
the
then-employed
lecturers
evidenced
a
policy
modification
akin
to
rescission
or
abeyance. This
argument
is
without
merit.
The
University
violated
HEERA
by
its
failure
to
meet
and
discuss
the
lecturers'
policy
before
unilaterally
changing
it.
The
fact that
it
attempted
to afford
some
relief
to
those
employees
harmed by
the
policy
change does
nothing
to
restore
the
eight-year
rule.
The
ALJ's
finding
refers
to
the
University's
unwillingness
to
entertain
AFT's
views
in
conjunction
with
bilateral
decision
making.
Authorization
to
grandfather
existing
lecturers,
decreed
by
employer
fiat,
does
not
disturb
or
mitigate
the
unfair practice
finding.
UC
takes exception
to the
ALJ's
remedy
because
it
applies
to
all
lecturers
rather
than only
AFT
members.
We
disagree.
All
lecturers
employed
at
UC
suffered the
SO-percent
reduction
in
maximum
duration of
employment.
UC
violated
HEER~
by
effecting that
change
without
first
meeting
and
discussing
it
with
AFT. The
basis for
imposing
this
obligation
is
to afford
some
input to
employee
organizations
whose members
include
employees
affected
by
the
rule
change. While
it
is
true that
AFT,
as
a
nonexclusive
representative,
served as
a
spokesperson
for
its
members
only,
we
do
not believe that
the
remedy
ordered
herein, restoration of the
status
quo
ante,
should
be so
limited.
Had
the University
met
with
AFT
as required
by
HEERA
and agreed to retain the eight-year rule,
it
could not have
7
implemented the policy only as to AFT members without violating
subsection 357l(d)5 which precludes, inter alia, the
employer's preference or support for one employee organization
over another. Consistent with Board precedent, imposition of
the status quo ante remedy shall apply to all employees of the
University. The Regents of the University of California (UCLA)
(12/21/82) PERB Decision No. 267-H.
UC also contends that the order inappropriately covers
lecturers employed as of February 22, 1980, the date the policy
issued. It argues that the policy implementation date,
July 1, 1980, should be used. We find that the facts support
the date used by the ALJ. The official revision of the rule
was distributed to campus chancellors on February 22, 1980, and
it was accompanied by a letter from President David S. Saxon
which announced the new Academic Personnel Manual section to be
5section 3571 provides in pertinent part as follows:
It shall be unlawful for the higher
education employer to:
(d) Dominate or interfere with the
formation or administration of any employee
organizat on, or contr;bute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another; provided, however,
that 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.
8
immediately
effective.
The remedy
should
thus
run
from
that
date.6
UC
contends
that
the
ALJ's
order
is
overly
broad because
it
applies to
lecturers
employed
at
all
UC
campuses.
This
contention, too,
should
be
rejected.
The
essence
of the charge
complains
of
systemwide
policy
change.
The
order
should
not
be
disturbed.
Related
to
this
assertion
is
UC
1 s
contention
that
AFT
failed
to
demonstrate
that
the
change
in policy adversely
affected
the
lecturers
employed
at
the
time
the
change
occurred.
This argument, while
written
as
an
exception
to the
proposed
decision,
is
more
aptly relevant to
a
compliance
hearing.
The
Board
concludes, as
a
matter of
law,
that
the
University
altered
the
lecturer
employment
policy
and
it
is
ordered,
inter
alia,
to
compensate
all
individuals
harmed
by
the
unilateral
change, whether by nonreappointment or by
virtue
of leaving the University to
seek
an
appointment
of longer
duration.
The
question of precisely
who
those
individuals are
and
to
what
extent
they
were harmed may
require
a
factual
6rn
addition,
UC
claims
that,
because
it
was unaware
of
its
obligation to nonexclusive
representatives, the
Board
should issue
a
prospective
remedy
only. This request
is
denied.
Among
other
arguments
made by
the
ALJ,
we
observe
that
the Board's decision in Professional
En
ineers, suara,impliedly modified pre-ex1st1ng
Boar
prece ent
an
issued only
weeks
after
Saxon's decree in February 1980. After the case
issued,
UC
did not
mend
its
ways
but rather continued to issue
unilateral clarifications
and
revisions to the policy without
notice to
AFT.
9
determination distinct from that addressed in the instant
case.7
UC also asserts that, as to the Santa Cruz campus, the
policy is yet to be implemented, and the only policy change has
been to alter the lecturers' titles. The ALJ 1 s discussion of
this issue correctly concludes to the contrary. The evidence
supports the finding that the basic terms of the revised
lecturer policy had been implemented at Santa Cruz by
mid-1981. The heart of the policy was systemwide in nature and
provided a four-year employment term. Santa Cruz officials had
no control over this provision. The initial reclassification
letters sent in 1981 were not subsequently disclaimed nor
rescinded. When the parties met on August 5, 1981, the
decision to revise the lecturer policy had been made, and AFT's
input was limited to local matters traditionally left to campus
discretion. The authority of campus officials to discuss the
?with regard to AFT 1 s request to clarify the ALJ 1 s
proposed remedy, our Order directs reinstatement of lecturers
teaching more than SO-percent time beginning February 22,
1980. Individuals may have to participate in a compliance
proceeding in order to substantiate their claim that the
failure to be reappointed was the result of the reduction in
the lecturers' duration of employment.
As to the evidence concerning Merle Woo from the Berkeley
campus, however, we reject UC 1 s argument that the basis for her
termination was not the altered policy but her criticisms of
the program. The ALJ's credibility determination and specific
findings of fact are expressly outlined and will not be
disturbed by the Board.
10
grandfathering policy was derived from and did not exceed that
permitted by provision of the systemwide policy. AFT was not
permitted the opportunity to meet and discuss a uniform
grandfathering policy.
ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, and pursuant to section
3563.3 of the HEERA, it is hereby ORDERED that the Regents of
the University of California and its representatives shall:
1. CEASE AND DESIST FROM:
(a) Interfering with the right of employees to
representation by arriving at a determination of policy or
course of action reducing the maximum duration of employment
for lecturers teaching more tharrS0-percent time without first
giving notice to interested employee organizations and, upon
request, discussing that subject pending the selection of an
exclusive representative for the employees affected;
(b) Denying employee organizations a reasonable
opportunity to represent employees by arriving at a
determination of policy or course of action reducing the
maximum duration of employment for lecturers teaching more than
SO-percent time without first giving notice to interested
employee organizations and, upon request, discussing that
subject pending the selection of an exclusive representative
for the employees affected.
11
2.
TAKE THE
FOLLOWING
AFFIRMATIVE
ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF
THE
HIGHER
EDUCATION
EMPLOYER-EMPLOYEE
RELATIONS ACT:
(a)
Upon
request,
reinstate
the
policy of
allowing
a
maximum
duration of
eight years'
employment
for
lecturers
teaching
more
than SO-percent time,
to
be
applied
retroactively
to
those
so
employed
on and
after
February 22,
1980.
(b) Upon
request,
reinstate
those
lecturers
teaching
more
than
SO-percent
time
as
of
February 22, 1980,
who
are
no
longer
so
employed and whose
lecturer
employment
thereafter
would
not
have been
terminated but for
application
of
a new
policy limiting
employment
of
lecturers
teaching
more
than
SO-percent time
to
a maximum
duration of
four
years.
Reinstatement
shall
be made
at
the beginning
of
the next
academic
quarter,
semester or
special session,
as
appropriate,
unless
the
employer
is
prepared
to offer
reinstatement
prior to
the succeeding
academic
period.
Requests for reinstatement
must
be made
to
an
employee's previous appointing
authority
within
45 workdays
of service of
this
Order
in
this
proceeding,
provided adequate
notice of the
Order has been
transmitted to
said
employees
at their
last
known
address.
(c) Make
reinstated lecturers
whole by
paying
them
for
any
loss of
pay and
other benefit(s) resulting
from
termination pursuant to
a new
policy limiting lecturer
employment
at
more
than SO-percent time
to
a maximum
duration
of four years.
The
total
amount
of this
award
shall
be
offset
12
by the amount of earnings received as a result of other
employment during this period. The employer's make-whole
obligation shall cease upon occurrence of the earliest of the
following conditions: (1) the date on which termination would
have been permissible in the normal course of University
business; or (2) the effective date of an actual reinstatement
offer that is not thereafter accepted; or (3) 45 workdays after
service of this Order if no request for reinstatement has been
received, provided adequate notice of the Order has been given;
or (4) satisfaction of the employer's duty to meet and discuss,
upon request, a proposed policy affecting the maximum duration
of lecturer employment.
(d) Pay 7 percent interest per annum on the net
amount of back pay owed pursuant to the make-whole provision of
this Order.
(e) Upon request of the University Council of the
American Federation of Teachers or AFT Local 2199, meet and
discuss any proposed change in the maximum duration of
employment for lecturers teaching more than 50-percent
providing said organization a reasonable opportunity to present
its views prior to the employer's arrival at a determination of
policy or course of action.
(f) Within thirty-five (35) days after service of
this Decision, prepare and post copies of the Notice to
Employees, attached as an appendix hereto, for at least thirty
13
(30) consecutive workdays at its headquarters offices and in
conspicuous places at locations throughout the University
system where notices to employees serving as lecturers are
customarily posted. It must not be reduced in size, and
reasonable steps should be taken to see that it is not defaced,
altered or covered by any material.
(g) Within fifteen (15) days after service of this
Decision, prepare and mail a copy of the Notice to Employees to
lecturers no longer employed in that capacity by the
University, but who were so employed on February 22, 1980.
Notice to said employees should be sent to their last known
address.
(h) Within twenty (20) days after service of this
Decision, give written notification to the San Francisco
Regional Director of the Public Employment Relations Board of
the actions taken to comply with this Order. Continue to
report in writing to the regional director thereafter as
directed. All reports to the regional director shall be
concurrently served on the charging parties herein.
Member Burt joined in this Decision. Member Tovar's
concurrence begins on page 15.
14
15 15
Tovar, Member, concurring: As exp::essed in my concurrence
in Regents of the University of Calif,Jrn:..a (UCLA) (12-21-82)
PERB Decision No. 267-H, my views on t!:1e representational
rights of nonexclusive representatives under HEERA differ
so:ne'tJhat from those of the r,.::st of the Board. I here reaffirm
my position as expressed in the above-noted case. In all
other respects, I add my endorsement to the majority opinion.
APPENDIX
NOTICE
TO
EMPLOYEES
POSTED
BY
ORDER OF
THE
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
An
Agency
of
the
State
of
California
After
a
hearing in
Case
No.
SF-CE-57-H,
University Council,
American
Federation of
Teachers
and
AFT
Local
2199
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 violated
GovernmentCode
subsections
357l(a)
and
(b).
As a
result
of
this
conduct,
we
have been
ordered
to post
this
Notice
and
will
abide
by
the
following.
We
will:
1.
CEASE
AND
DESIST
FROM:
(a)
Interfering
with
the
right
of
employees
torepresentation
by
arriving at
a
determination
of
policy
or
course
of
action
reducing the
maximum
duration of
employment
for
lecturers
teaching
more
than SO-percent time
without
first
giving notice to interested
employee
organizations
and,
upon
request, discussing
that subject
pending the
selection
of
an
exclusive representative
for the
employees
affected;
(b) Denying employee
organizations
a
reasonable
opportunity to represent
employees
by
arriving
at
a
determination of policy
or course of action
reducing the
maximum
duration of
employment
for
lecturers
teaching
more
than
50-percent
time
without
first
giving notice to interested
employee
organizations
and,
upon
request, discussing
thatsubject
pending the
selection
of
an
exclusive representative
for
the
employees
affected.
2.
TAKE THE FOLLOWING
AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
HIGHER EDUCATION
EMPLOYER-EMPLOYEE RELATIONS ACT:
(a) Upon
request,
reinstate
the
policy of allowing
a
maximum
duration
of eight years'
employment
for
lecturersteaching
more than SO-percent time, to
be
applied
retroactivelyto those so employed on and
after February 22, 1980.
(b) Upon
request, reinstate
those
lecturers teaching
more
than 50-percent time as of February 22, 1980, who
are
no
longer so employed and whose
lecturer
employment
thereafter
would not have been terminated but for application of
a new
policy limiting
employment
of lecturers teaching more than
SO-percent time to
a maximum
duration of four years.
Reinstatement shall be made at the beginning of the next
academic quarter, semester or special session, as appropriate,
unless the employer is prepared to offer reinstatement prior to
the succeeding academic period. Requests for reinstatement
must be made to an employee's previous appointing authority
within 45 workdays of service of this final Order in this
proceeding, provided adequate notice of the Order has been
transmitted to said employees at their last known address.
(c) Make reinstated lecturers whole by paying them
for any loss of pay and other benefit(s) resulting from
termination pursuant to a new policy limiting lecturer
employment at more than SO-percent time to a maximum duration
of four years. The total amount of this award shall be offset
by the amount of earnings received as a result of other
employment during this period. The employer's make-whole
obligation shall cease upon occurrence of the earliest of the
following conditions: (1) the date on which termination would
have been permissible in the normal course of University
business; or (2) the effective date of an actual reinstatement
offer that is not thereafter acceptedt or (3) 45 workdays after
service of this Order if no request for reinstatement has been
received, provided adequate notice of the final Order has been
given; or (4) satisfaction of the employer's duty to meet and
discuss, upon request, a proposed policy affecting the maximum
duration of lecturer employment.
(d) Pay 7 percent interest per annum on the net
amount of back pay owed pursuant to the make-whole provision of
this Order.
(e) Upon request of the University Council of the
American Federation of Teachers or AFT Local 2199, meet and
discuss any proposed change in the maximum duration of
employment for lecturers teaching more than 50-percent time,
providing said organization a reasonable opportunity to present
its views prior to the employer's arrival at a determination of
policy or course of action.
Dated: THE 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.
2
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL, AMERICAN
FEDERATION OF TEACHERS (AFT), and
AFT LOCAL 2199,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
_________________________________
Unfair Practice
Case No. SF-CE-57-H
PROPOSED DECISION
(12/2/82)
Appearances; Robert J . Bezemek, Bennett & Bezemek, attorney
for charging party University Council, AFT, and AFT Local 2199;
Milton H. Gordon, attorney for respondent Regents of the
University of California.
Before; Barry Winograd, Administrative Law Judge.
PROCEDURAL HISTORY
On June 3, 1981 the University Council of the American
Federation of Teachers and its affiliated Local 2199
(hereafter AFT) filed an unfair practice charge against the
Regents of the University of California (hereafter Regents or
University). The charge alleged, in essence, that the employer
had unilaterally altered terms and conditions of employment for
University lecturers, including reduction of the maximum amount
of time allowed for service in full-time lecturer positions.
AFT asserted that this action violated sections 3571(a) and (b)
of
the
Higher
Education
Employer-Employee
Relations
Act
(hereafter
HEERA
or
Act)
.1
On
December
31,
1981
the charging
party
submitted
an
amendment
alleging
that, after
the
original
charge
was
filed,
AFT
met
with
University agents
to discuss
the
lecturer policy
changes, but
that
the
University
did
not
participate
in the
sessions in
good
faith.2
On
June
25,
1981
and
January
18,
1982
the
Regents
filed
answers
to
the charge
and
the
amendment.
While
admitting
certain facts,
the
answers
generally
denied the
allegations
of
unlawful conduct
and
set
forth several affirmative defenses.
lThe
HEERA
is
codified
at
Government Code
section 3560,
et
seq.,
and
is
administered
by
the Public
Employment
Relations
Board
(hereafter
PERB
or Board). Unless
otherwise
indicated,
all
statutory
references in
this
decision are to the
Government
Code.
Section
3571
of the
Act
provides
that
it
shall
be
unlawful for
a
higher education-employer
to:
(a) Impose
or
threaten to
impose
reprisals
on
employees,
to discriminate
or
threaten todiscriminate 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.
2A
further allegation that the Regents' conduct
violated
section 357l(f),
by bypassing
a
petitioning
employee
organization
and
conducting
talks with employee advisory groups
on a
matter within
the scope
of representation,
was
subsequently withdrawn during the formal hearing.
2
Admissions,
denials
and
defenses
will
be
considered
below
as
relevant to
this
decision.
An
informal
settlement
conference
was
conducted
on
June 25,
1981
but the
dispute
was
not
resolved.
Following
the issuance of
a
complaint,
on
February 18,
1982,
and a
notice of hearing,
on
March
26, 1982,
a
formal
hearing
was
held
at
Berkeley,
California,
on
May
25,
26
and 27,
and
June 30, 1982.3
After
each
party
requested extensions of time,
post-hearing
briefs
were
filed
and
the matter
was
submitted
on
November
3,
1982.
FINDINGS
OF
FACT
A.
Background.
In
addition to individuals
holding tenure in professor
ranks,
who
are thereby
entitled
to
membership
in
the
Academic
Senate, the University of California
utilizes
a
substantial
number
of
non-Academic
Senate teaching personnel, including
lecturers.
During
the period leading
up
to the policy
changes
3At
the
end
of
its
case-in-chief,
the charging party
amended
its
claim to
conform
to proof
by
including
an
allegation that
the
employer
also
met
in
bad
faith
with
representatives of
AFT
Local 1474,
a
Berkeley
affiliate,
regarding campus-level features of the
same
lecturer
changes
described above.
The amendment was
received,
over
respondent's
objection,
on the grounds
that
the subject matter
was
closely
related to
and shed
light
upon
the
earlier
charge
and
the
first
amendment. See San Ramon
Valley Unified School
District(8/9/82)
PERB
Decision
No. 230
at
pp. 9-10.
3
at
issue
in
this
case, there
were
approximately
1500
to
2500
lecturers,
full
and
part-time,
throughout the
University
system.
By
and
large, their
teaching
duties
involved
basic
undergraduate
courses.
Lecturers
teaching
more
than
part-time
have
typically
been
hired
on
one-year
contracts
without express
promise
of
reappointment.
However,
the
evidence
indicated
that contract
renewal has
been
common
except for
instances of
class
or
program
cancellations,
inadequate
performance
or department
financial
cutbacks.
Aside
from
these
limits,
the only
other
restraint
on
reappointment
has been
regulation
of the
maximum
duration of
full-time
employment,
discussed
immediately below.
A
change
in
that
policy
prompted
the
filing
of
this
charge.
Lecturers
(and
other
professional
employees)
are subject to
the provisions of
the
Academic
Personnel
Manual (APM).
Until
1980,
provisions of
APM
section
133
controlled
the
maximum
length
of lecturer
employment.
In the
past,
APM
section
133
permitted
retention of
lecturers
teaching
more than 50
percent
time
(that
is,
"full-time")
for
a
period
no
longer
than
eight years, unless,
by
that
point,
the
individual
was
given
"security of
employment" {or SOE).
Security of
employment
is
akin
to tenure
for
non-Academic
Senate teaching ranks,
and
establishes,
among
other things,
a permanent
career status
that
may be
disturbed
only for good
cause.
Another
related provision,
APM
4
section 135, limited security of employment to appointments
made only after periodic performance reviews. Security of
employment would be granted if such review showed either
exceptional teaching ability or special instructional need. In
practice, according to several witnesses, the most significant
review took place after six years. Approval at that stage was
closely tied to receiving SOE two years later. The APM also
required that SOE be based on the existence of a full-time
budgeted position, otherwise known as full-time employment (or
FTE).
At the times relevant to this case, about 135 University
lecturers had security of employment. Regardless, as conceded
by University analyst Myron Okada, a principal employer
representative familiar with these policies and procedures, all
lecturers teaching more than 50 percent time were technically
eligible for SOE following satisfactory reviews and assignment
of a budgeted position. Many other lecturers, teaching less
than 50 percent time (that is, "part-time"), were neither
subject to the eight-year cut-off nor eligible for SOE based
upon their limited service. Thus, the significance of
achieving security of employment by the end of the eighth year
was accentuated because reappointment to any full-time lecturer
post after eight years was prohibited unless the person also
had been given SOE. Without SOE, therefore, ongoing lecturers
after eight years were confined to part-time status.
5
According
to
APM
section
133,
the
eight-year
period
was
comprised
of
24
academic
quarters
(3
per
year),
and
breaks-in-service
did not
jeopardize
the
accrual
of the
necessary
number
of
quarters.
Persons
taking
job-related
leaves
of
absence could
have
that
period
counted
toward
the
total
time
required.
Also,
section
133
allowed
the
computation
of
time
in
a
lecturer
position to
be
applied
toward
the
distinct
eight-year
limit
for
completion
of the
assistant
professor
step that
preceded
granting of
formal
tenure.
Hence,
although not frequent
nor
in the
typical
line
of progression,
the
lecturer
position
could
be a
stepping-stone
toward
tenured
professor
status.
Other
APM
provisions also
regulated
terms
and
conditions
relevant to lecturers.
These
sections
governed
the
mechanics
of
the
yearly
reappointment
process, the
salary scale, travel
allowances, and
other
employment
matters.
Since
all
lecturers
were grouped under
the
same
employee
classification,
these
provisions
were
uniformly
applied to
those
destined for
SOE
and
those
who were
not.
B. The
Sullivan
Report.
In
July
1977
University President
David
S.
Saxon
created
an
11-member academic committee
under
the chairmanship
of
law
professor
Lawrence A.
Sullivan.
The purpose
of
the
Sullivan
Committee was
to:
•..
review the current policy
on
6
limitations of period of service and its
applicability, •.. assess its usefulness
in terms of the University's present
circumstances, and •.. recommend ...
changes or clarifications .•..
The Committee's study, popularly known as the Sullivan Report,
was sent to President Saxon in January 1978.
The Report cast its analysis in terms of two University
personnel goals related to the eight-year principle:
(1) of protecting the individual faculty
member from unduly long service at low salary
and in insecure status, and (2) of making
firm and timely decisions, for the good of
the institution, to retain only the best
aspirants as permanent members of the
faculty .... (Report, p. 2.)
The Committee identified four areas where limited-term
teaching help was appropriate, up to full-time, on a so-called
"temporary" basis: (a) specialized, often practice-oriented
instruction; (b) elementary instruction of a repetitive
character; (c} substitution assignments for faculty on the
professorial ladder; and, (d) experimental programs without
permanent funding. However, in the Committee's view, long-term
non-tenured instructional faculty, including full-time
teachers, were also required for some specialized instruction;
for example, in technical or creative fields, or in developing
a cadre of elementary language instructors. These long-term
employees would be considered "permanent."
Upon reviewing the existing distribution of teaching
assignments, the Report stated:
7
The Committee is unanimous that the current
system of titles produces significant
procedural problems .•.• more troublesome,
is the lack of discrimination within the
Lecturer title between non-ladder positions
purely temporary in nature and positions
that, if the employee proves highly
satisfactory, can lead to security of
employment. The possibility of permanence
for the few creates a false presumption of
the possiblity of permanence in the minds of
the many. (Report, p. 6.)
In a similar vein, another part of the Report noted
underlying problems viewed by the Committee:
[F]irst is the need for clarity of mutual
expectations. Experience shows that
temporary personnel whose employment is
renewed for five years or more tend to
develop an expectation of continuity even
though the terms of employment are to the
contrary. Moreover, it becomes harder for
all involved in the relationship to terminate
it even in the face of clear programmatic
need to do so. The University's fiscal and
programmatic flexibility is eroded by
continuing such appointments beyond the
legitimate need for them. Second, persons
doing basic teaching of a repetitive nature
on a long term basis tend to grow stale in
the subject matter unless stimulated by
creative activity or graduate level
teaching. (Report, p. 5.)
Given the problems it found, the Sullivan Committee made
several recommendations to President Saxon. One proposal was
that there be a four-year limit for full-time non-tenured
teaching work without SOE prospects, and that this 11 temporary 11
work be given a separate title from that of lecturer. The
suggested new title was "Instructor." A second proposal was
that the lecturer title, in the Committee's view, should be
8
reserved for "permanent 11 budgeted positions based on an FTE,
filled after a formal recruitment search and still subject to
the historic eight-year rule. Even though employees on each
track could be full-time teachers, only those in the second
permanent category could be security of employment candidates
within the eight-year limit. Further, it was proposed that
those given appointments in the new limited four-year
classification would be on a salary scale that started below
the then-current scale for lecturers (but was otherwise
parallel).
The Report recognized that breaking the existing lecturer
ranks into two tracks--one short-term and without possiblity of
SOE, the other with career SOE potential--could cause
transition problems, but there was no consensus on a single
device to guard the interests of incumbents:
The majority of the Committee concludes that
present Lecturers whose positions are
identified as strictly temporary should be
reappointed as Instructors subject, however,
to an appropriate "grandfather" provision.
Such a provision might, for example, protect
any present Lecturer who, before
implementation of the new system, had been
given assurances by responsible campus
officials that his or her particular
position was one in which security of
employment could be attained. One member of
the Committee takes the view that any person
presently holding the Lecturer title who has
held it for more than six years should be
granted an immediate formal review for
security of employment based on the criteria
now stated in the Academic Personnel
Manual. Another member of the Committee
notes that the actual functions of most
9
present Lecturers
on
his
campus
correspond
to
those
appropriate
to
temporary
AssistantProfessors
rather
than
to
those
of
Instructors,
and
suggests
that
authority
forthe assignment
of
new
titles
reside
at
the
Chancellor's
level
in
case
departments wish
to
change
current
Lecturers
to
temporary
teaching/research
titles.
(Report,
p.
10.)
In
another
area of concern,
"time on
the clock" for
acquiring
credit
toward
tenured
faculty
positions,
a
Committee
majority
took the
position
that
the
established
practice
allowing accrual
should
be
terminated.
The
majority
believed
that only
time
accrued
for
positions
requiring
both
teaching
and
research
should
count, thereby excluding those
in
either
the
existing
or the
proposed
lecturer series.
The
Sullivan
Report reasoned
that
since
lecturers
were
only required
to
teach,
it
would be
unfair to
consume
part
of
their
eight years
on
the
professorial
clock,
which
did
require research
productivity,
with
the
limited function
of
lecturer service.
On
this issue, at least
two
minority
views were
recorded
in
the
Report,
one
suggesting
a
flexible
case-by-case
approach
and
the
other favoring the already established
procedure of counting
"service
at
more
than
half-time in
any academic
title." Still,
the
Committee unanimously proposed
that preliminary service
as
a
short-term lecturer
would
count toward the eight-year
probationary period for lecturers later
moved
to
a
permanent
SOE
track.
Under
this
computation, academically-related leaves
of absence would
also count toward the eight-year
maximum,
but
other types of absences would
not.
10
As evident from this detailed analysis, the Sullivan Report
presented proposals that would dramatically alter the
employment prospects for a substantial number of employees.
Perhaps most striking was the Report's suggestion to cut from
eight years to four the maximum length of teaching time for a
vast number of lecturers, with an accompanying starting salary
reduction as well. As the Report noted, this proposal, if
adopted, would also dim implied expectations of many that
lengthy service up to an eighth year could lead to security of
employment. The Committee was obviously aware of the
significance of its study and proposals, and couched its report
accordingly:
. our final report is, in part, a set
of recommendations for chanqe and rationales
for these and, in part, a policy planning
document which presents some information and
analysis and suggests alternative possible
responses to relevant policy questions.
(Report Cover Letter, p. 1.)
Consistent with this view, the Committee noted:
Our report, therefore, can be no more than
the basis for further consultation both with
campus and departmental administrators, with
appropriate Senate mechanisms, and with
representatives of non-Senate teaching
personnel. Moreover, we worked rapidly and
under considerable time pressure. We stayed
at the level of basic policy. We do not
profess to have studied all of the issues or
implications even at this level or to have
explored some other closely related
questions. Nor did we consider, in any
detail, any of the myriad problems which
would arise in the process of implementing
our proposals. For example, a variety of
the problems would arise during a transition
from the present set of titles and policies
11
to those which we propose. We have no doubt
that "grandfather" clauses of some kind would
be necessary to assure equitable treatment to
some personnel. Our failure to address these
questions arose not from insensitivity to
them, but from a recognition that particulars
like these could be dealt with effectively
only after final decisions were made about
the long range policy issues. (Report Cover
Letter, p. 2; emphasis added.)
A few months after the Sullivan Report was submitted, the
University Council AFT requested a meeting to discuss the
proposals and their status. A meeting took place on June 14,
1978 with representatives of the systemwide University
administration. According to notes of the meeting, offered by
respondent and confirmed by testimony from its notetaker, the
AFT was assured that implementation of the Sullivan Report
would be a gradual process, that there would probably be
changes, and that the whole matter would be subject to
discussion by campus administrators, Academic Senate members,
and employee organizations.4 These notes were also confirmed
by the testimony of an experienced University staff analyst who
served on the Committee and participated in the June 1978
meeting. That witness, Lubbe Levin, stated that the Sullivan
Report was not itself in a format comparable to other APM
4rnadvertently, these notes (Respondent's Exhibit No. 2}
were not officially received in evidence during the hearing,
even though the notetaker testified, identified the copy in
evidence, and was available for cross-examination. The record
should reflect, nunc ~Q tune, the receipt of the document.
12
revisions for the purpose of adoption as a new personnel
policy. Most important, University officials indicated that
the existing APM provisions would be "operating policy until
formally revised."
There was also limited testimony by Levin that she had a
second meeting with AFT representatives about six months
later. However, she did not recall the identity of
participants, specific subjects discussed, or the outcome of
the discussion. No notes were introduced from this session.
The administrative law judge has therefore concluded that even
if the meeting did occur, there is no persuasive evidence that
it included a formal expression of AFT views about a pending
proposal for a new policy or course of action.
c. The New Policy for Lecturers.
In March 1979, more than a year after the Sullivan Report
was submitted, the University's systemwide staff prepared and
distributed to campus administrators a draft proposal regarding
reclassification for lecturers not on an SOE track. The goal
was to receive comments a month later and implement the new
policy by July 1979. At this point, and until the final
product was completed, the lecturer policy change was under the
direction of Edward J. Blakely, the assistant vice-president
for academic personnel affairs. Blakely had been the senior
staff person serving the Sullivan Committee and was familiar
with the details of the study and its recommendations. Members
13
of
his
staff
wrote
the
March 1979
draft
and
coordinated
the
review
of
comments from
campuses.
The
initial
draft
was
not
approved
as quickly as
expected.
Questions
were
raised,
particularly
about the
"Instructor"
title
change urged
by
the
Committee.
Subsequent
revisions
carried
the
project into
late
1979.
By
early
1980, however,
agreement
apparently
had
been
reached
among
administrative
staff
throughout the
state
and an
official
revision
of
the
APM
was
prepared.
This
revision
was
distributed
to
campus
chancellors
on
February
22, 1980, over
the
signature
of
President
Saxon, and
was
designated
as
new
APM
section
63.5
According
to
Saxon
1 s
cover
letter,
the
authenticity
of
which
is
not in
dispute,
the
new
APM
section
was
"effective
immediately."
He
informed
recipients that
the
new
policy
had
been
extensively
reviewed
by
University
committees
and
offices,
and
that actual
inserts
for
the
APM
would be
forthcoming soon.
As
discussed
more
fully
below,
neither
the preliminary
drafts
of the
new
APM
section,
nor
the policy issued in
February 1980, were
submitted to the
AFT
for review
and comment
prior to adoption.
Ssections of the
APM
were
recently
renumbered and
APM
section
63
is
now
section
287. For
convenience, the
original
number,
often referred to in testimony
and
exhibits, will
be
used in this decision.
14
APM
section
63
did
not adopt
the
"Instructor"
title
recommended
by
the
Sullivan
Committee,
but did provide for
new
classifications
of
"visiting"
and
"adjunct"
lecturers.6
The
new
classes
would be
limited to
appointment terms
not
to
exceed
two
years,
with
a maximum
of
four
years
full-time service (that
is,
12
quarters),
whether
continuous or
interrupted.
It
was
prescribed
that service
in the
new
visiting
or
adjunct
classifications
would
not
count
toward
professorial
tenure,7
but
that
it
could
be
accrued,
as
part
of
a maximum
of
eight
years,
for
a
lecturer position
on
the
SOE
track.
Other terms
and
conditions
of
employment,
including retirement
system
eligibility,
and
a
salary scale equivalent to
that
for
lecturers,
remained
as
before.8
Interpretative
testimony
by
University
officials,
borne
out
by
AFT
witnesses, indicated
6Technically, "senior
visiting"
and
"senior adjunct"
titles
were
also created,
thereby
retaining
a
parallel
to
the
graduated
"lecturer"
and
"senior
lecturer" structure that
existed before
and
after
new
APM
section
63
went
into
effect.
7A
later
revision,
dated
November
11,
1981 and
distributed
in January 1982,
apparently
retracted this
alteration
of past practice,
thereby providing
that visiting
and
adjunct lecturer service
would
count toward
time-on-the-clock for tenured professor positions.
(See
Charging
Party
Ex.
28.)
8Travel expenses for conferences
and
professional
advancement were
geared to other
APM
provisions governing
either "visiting"
or "adjunct" positions.
There
was
insufficient
evidence, however,
that this actually limited
potential
allowances
that
were
traditionally discretionary.
15
that no change in the substantive content of teaching duties
was contemplated as part of the new policy.
Responsibility for establishing specific appointment and
review procedures consistent with APM Section 63 was expressly
delegated to campus chancellors.
Significantly, the new APM section 63 was silent about
grandfathering individuals who were to be reclassified to the
new titles. However, on this issue, documentary evidence
indicates at least two written clarifications of the APM were
distributed after the February 1980 policy was released.
First, in May 1980, Blakely wrote to academic
vice-chancellors regarding questions that had been raised about
the new titles. Blakely began by summarizing the previous
action establishing new visiting and adjunct classes, and its
import:
These titles have been developed in order to
distinguish two types of appointments which
have been made under the title of Lecturer--
temporary appointments and appointments
which may lead to security of employment.
The title of Lecturer is henceforth to be
used only when approval has been given for
allocation of an FTE to be filled by a
permanent appointment as Lecturer with
Security of Employment, and the appointee is
to be considered as a candidate for
advancement to security of employment. My
staff is currently working on a revision of
the Lecturer title which will formally
embody these changes.
The new titles in Section 63 will be used
for all temporary appointments. Recognizing
the requirement for individual reviews and
16
fair
treatment,
the
campuses
should
transfercurrent
temporary
lecturers
to
the
new
titles
as
soon
as
possible.
Blakely then
responded
to
concerns about
the
grandfathering
issue.
He
informed
campuses
that full-time
lecturers
in the
new
and
old
titles
could
be
retained
for
up
to eight years:
Service
at
more
than
50%
time
in
any
combination
of these
new
titles
and
the
titles
Lecturer
or Senior
Lecturer
is
limited
to
a maximum
of
eight years. Individuals
who
are
currently
Lecturers
or Senior
Lecturers
may
serve
up
to
four
years
at
more
than
50%
time
in
the
new
titles,
but,
in
all
cases the
eight
year
rule applies.
However,
grandfathering
was
not
established
across-the-board.
Blakely
gave campuses leeway
to,
...
be
more
restrictive
in
your
limitation
of
service
in
a
combination of the
lecturer
titles.
Thus,
a
campus
for
many
legitimate
reasons
may
choose
to
limit service
in the
combined
new
and
old
lecturer
titles
to
less
than
eight years.
A
second
clarification
apparently
modifying
Blakely
1 s
May
1980
interpretation
was
adopted
after this
charge
was
filed,
although there
is
no
evidence, other
than
that
circumstance,
showing
a
causal
relationship.
A
revision of
APM
section
133, dated
November
11,
1981 (and
distributed
in
January 1982), contained language
distinguishing
between
persons appointed before
and
after July 1,
1980,
providing that
the eight-year rule
would
still
apply to the former.
(See
Charging Party
Ex. 3,
App. B.) The
import of this
change
was
17
that
employees
previously hired
as
lecturers
were
fully
grandfathered,
even
if
later reclassified
to
the
new
titles.9
It
should
also
be
noted, regarding formulation of
new
APM
section
63,
that
University
administrators
intended
to
revise
the
separate
APM
provision
governing
lecturers that
had
previously
been
in
effect
for
all
employees
in
that
title;
that
is,
APM
section
283.
Blakely
referred
to
this
anticipated
revision
in
his
May
1980
letter
quoted above. According
to
testimony
offered
by
respondent,
this
separate policy
revision
would
clarify
the existence
of dual
tracks.
As
of the formal
hearing in
this
case,
the
promised
revision
had
not
yet
been
promulgated.
D.
Implementation
of
New
APM
Section
63.
The
documentary
material
and
testimony
offered
at
the
9A
third clarification
regarding
new
APM
section
63
was
issued
by
Blakely
on
June 22, 1981,
shortly after
but again
without apparent connection to the
filing
of the present
charge.
In
this letter
to
academic
vice-chancellors,
Blakely
indicated
that,
•.•
[s]ince the vast majority of
individuals in the
Visiting
Lecturer
and
Visiting
Senior Lecturer
titles
are paid
according to standarized salary scales,
it
appears inappropriate to include these
titles
with those of other
visiting
appointees
whose
salaries
are negotiated
on
an
individual basis
and
who
are, therefore,
ineligible
for range adjustments.
The campuses were then informed
that salaries
for the
new
classifications
could
be
automatically range-adjusted to allow
for cost-of-living raises.
18
hearing provides persuasive evidence in support of several
overall findings about systemwide implementation of the new
policy. First, when the new APM section 63 was issued in
February 1980 it was "effective immediately, 11 with the
systemwide administration expecting reclassifications to follow
promptly, as Blakely declared in his May letter. Blakely also
testified that any variation or exemption from the new policy
would require prior systemwide approval. Second, most campuses
republished and redistributed the systemwide pronouncement,
perhaps with special provisions for those concerns left by
express delegation to local campuses, such as the methods to be
utilized for review and appointments. Third, campuses began
the reclassification process in Spring 1980, for the 1980-81
academic year, and completed the changeover by Spring 1981 for
the succeeding academic year, 1981-82. Fourth, once carried
out, reclassification did not change an employee's teaching
duties. The new visiting and adjunct lecturers continued to
teach the same courses and programs as before.
In regard to the above findings, there was no evidence
introduced by respondent that any campus either attempted or
had the authority to alter the basic terms of the February 1980
policy issued by President Saxon; in particular, the creation
of new academic titles, the four-year service limitation for
those titles, and the distinction on eligibility for security
of employment.
19
In addition to testimony and documents relevant to
systemwide actions, there was substantial evidence offered
about the implementation process at the Berkeley and Santa Cruz
campuses. This body of evidence sheds light on the steps taken
by the University.
1. Berkeley.
At Berkeley, for example, in April 1980, then
Vice-Chancellor Ira Michael Heyman reissued the new APM
section 63 for action by deans and departmental officials.
Heyman stated that existing review procedures that had been
utilized previously at Berkeley would continue in effect. He
also stated that "range adjustments will not apply" to the new
visiting classifications. (But see fn. 9, supra.)
Almost a year later, in March 1981, another campus-wide
memo was issued by Heyman 1 s successor, Roderic B. Park,
regarding the reclassification process. Park had viewed the
February 1980 release as the actual, final policy. However, he
noted that because the new section had been distributed late in
the 1979-80 year, prior commitments had prevented full
implementation for 1980-81 but that completion of the process
was expected by July 1981.10
lOThe Acting Provost and Dean of the College of Letters
and Science, Hugh Mclean, also sent a memo to department chairs
on January 27, 1981, informing them about the four-year rule,
the need for an FTE commitment before proposing a candidate for
security of employment, and the possibility of individual
salary requests in lieu of automatic range adjustments.
20
Evidence about one Berkeley employee also illuminated the
implementation phase. Merle Woo, a full-time lecturer in
Asian-American Studies, a subsection of the Ethnic Studies
Department, received notice in April 1980 that she was being
reappointed for 1980-81 as a "Lecturer," and that, by the end
of the year, she would have accrued nine of twelve quarters of
service credit toward security of employment. Previous
appointments for Woo made no mention of a twelve-quarter
limitation. In May 1981, when Woo was reappointed as a
"Visiting Lecturer" for 1981-82, she was told that she would
have accrued at the end of that term twelve quarters credit
toward SOE. No mention was made at that time regarding
termination. Finally, in Spring 1982, Woo was informed that
her service would end that June. Her administrative appeal for
continued employment beyond the four-year limit was rejected by
Provost Robert Middlekauff, after a departmental official
disclaimed any authority to alter established University policy.
Some conflicts exist regarding the circumstances
surrounding woo's expectations. Woo testified that she was
promised a security of employment position when she was hired
in 1978, after nine years of teaching at San Francisco State.
The promise was attributed to a personnel committee, and to two
department agents, Ling-Chi Wang, then the coordinator for
Asian-American Studies, and Ronald Takaki, a professor who
later succeeded Wang as coordinator. One of the agents,
21
Takaki, claimed he was on leave at the time, thereby raising
some doubt about Woo 1 s assertion. However, Wang was not called
to testify, and no other evidence was offered on this point.
Woo also testified that in Spring 1980 she was reassured
about her promised SOE position despite the 12-quarter limit
that was first stated in her 1980 reappointment letter as a
"Lecturer." Takaki denied giving such reassurance. Woo 1 s next
letter in 1981, in which she was given the new title of
"Visiting Lecturer," again sparked her concern. But Woo only
learned about her pending termination several months later, in
February 1982, after inquiring about the status of her next
reappointment. Finally, Woo testified, without contradiction,
that in May 1982 Provost Middlekauff personally told her that
the four-year rule was being applied everywhere, and had
nothing to do with woo 1 s professional qualifications. When
asked, according to Woo, Middlekauff asserted that the denial
of security of employment was unrelated to any budgetary issue
or loss of an FTE position. Middlekauff was not called as a
witness by respondent.
On the basis of the testimony offered, as well as
respondent's failure to call key witnesses, the administrative
law judge finds that Woo was offered a security of employment
position when she was hired, contrary to the limited and
incomplete denial put forward by the University. The evidence
also supports a finding that the new lecturer policy was used
22
as
a
basis
for
her premature
termination,
in apparent
contradiction
to
the
1981
full
grandfathering modification of
APM
section
133.
Woo
was
specific
and
forthright
when
questioned
about the circumstances of
her
hiring
and
eventual
separation.
The
hiring
commitment
to
Woo
was
also consistent
with her
extensive
prior
teaching experience,
and
with
the
fact
that, until
her
last
year,
she
was
the
sole full-time lecturer
within Ethnic
Studies.
Although
departmental
officials
may
have been
overeager
to hire
and
retain
a
skilled
teacher,
and
perhaps
erred
in
making an
SOE
promise
without
an
underlying
budgetary
allocation,
it
is
found
that
woo 1 s
expectations
had
been
impliedly
confirmed
by
department
representatives
and, as
the Sullivan
Report
suggested,
by
the
momentum
of her
reappointment
process.
These
findings are
not negated
by
the
fact that
Woo,
in
another proceeding,
has charged
the University
with
a
discriminatory discharge.
Contrary
to the
argument
of
University counsel, the claims are not mutually
exclusive.
Use
of the four-year rule
as
a
basis to terminate
Woo
sheds
light
on
respondent's practice
regarding
APM
section
63, even
if it
is
otherwise
shown,
in
a
separate case, that
invocation of the
rule
was
pretextual
and
unwarranted.
23
Last, regarding implementation at Berkeley, there was
evidence about meetings in December 1981 and in March and
April 1982, between local campus and AFT representatives. At
the first of these meetings, local officials stated they had
only limited knowledge about campus prerogatives and had no
delegated authority to depart from systemwide policy. The
campus representatives promised to get back to AFT about
several issues that had been raised. In particular, concerns
had been expressed about grandfathering those who had been in
the old lecturer titles.
Months later, in Spring 1982, after local officials were
finally able to arrange a subsequent meeting to provide more
detailed knowledge about the new policy, campus management and
AFT representatives were informed by systemwide analyst Okada,
to the apparent surprise of one Berkeley personnel agent, that
grandfathering was a local matter for decision by the
appointment authority; that is, by the department, subject to
approval by the campus administration. The inconsistency
between (1) the systemwide assertion about preserving local
authority, in accord with Blakely's May 1980 memo, (2) the
November 1981 APM revision that fully grandfathered
pre-July 1980 lecturers, and (3) the claim by Middlekauff to
Woo in Spring 1982, referring to a rigid four-year rule applied
24
everywhere,
was
never
explained
by
testimony
offered
by
respondent.11
2.
Santa
Cruz.
Although
Santa
Cruz
officials
received the
new
policy in
Spring
1980,
local
concerns delayed
initial
implementation
steps
until
Spring
1981. Then, on
June
2,
1981,
Santa
Cruz
llrt
might
be
inferred
from
Park's
testimony
that
the
Berkeley
campus
College of
Letters
and
Science
had
established
a
four-year
rule
by an
informal
policy revision
in
1976
and
1977,
and
that
Middlekauff
was
alluding to that practice.
However,
the
evidence
suggests otherwise.
First,
the Ethnic
Studies
department
is
organizationally separate
from
the
College of
Letters
and
Science.
Second,
Middlekauff's
letter
to
Woo
in
1982
made
no
mention
of
a
local
campus
rule
and,
indeed,
referred to
Woo 1 s
appeal of
a
11
Systemwide
University
policy."
Third, the
memo
issued
by
Letters
and
Science Acting
Provost
and
Dean
McLean
in January
1981
similarly
made
no
reference to
any
established local
policy within his
domain,
but
mentioned
only the
reclassification
process
and
four-year
rule
flowing
from
new
APM
section
63,
and
designed
to
be
effective
by
July 1,
1981.
Fourth, neither
Heyman 1 s
April
1980
nor
Park's
March 1981
memos made
any
mention
of
a
pre-existing
four-year
rule, albeit
of
limited
applicability. Fifth,
although
Park
testified
that
business records in
the
form
of
routine
meeting minutes
would
support
his
claim
that
a
fixed
four-year policy applied
at
Berkeley (in
Letters
and
Science)
before President Saxon's February
1980
announcement,
those
minutes
were
not
offered in evidence
despite
the express
opportunity available to
the respondent
to
do
so following the
close
of the formal
hearing.
It
is
therefore
concluded
that
even
if
some
departments within Letters
and
Science
had
applied
a
four-year rule before February 1980, as Park
testified,
it
was
not
shown
that this
policy
was
uniformly
known
to
employees,
to
employee
organizations, or,
for
that matter, to
other
management
officials.
For
this
reason,
it
is
found
that
such
a
rule
would
not
constitute
an
established past
employment
practice;
nor would
it
serve as
a
reconciling explanation for
otherwise inconsistent University testimony about
rigid
University policy that restricted grandfathering.
25
Academic
Vice-Chancellor
John
A. Marcum
distributed
a
proposed
Santa
Cruz
lecturer reclassification
policy to other
campus
management
officials.
Marcum
stated that
the
new
policy
would
be
effective
July 1,
1981.
The
text
of the
draft
was
virtually
identical
in
material respects to
the
draft distributed
by
President
Saxon
in
February
1980,
although
some
of
the
provisions
were
stated
in
greater
detail.
One
major
difference,
however,
was
that
the Santa
Cruz
campus
determined
to
use
only the "adjunct"
title
for
reclassified lecturers,
instead
of
also
using the
"visiting"
designation.
No
reference
was
made
to
the
grandfathering question.
In
June
1981
Marcum
also
began
practical
implementation
of
the changeover
by
issuing
reappointment
letters
for
the
upcoming
1981-82 academic
year
that utilized
the
new
11
adjunct
lecturer" classification.
In
one
letter
introduced
from
that
period,
Marcum made no
mention about
a
limitation
on
years of
service.12
Shortly
thereafter,
on
July
21, 1981, Santa
Cruz
personnel
and
labor
relations
manager
Robert
R.
Bickal issued
a
notice
12A
second
letter
in evidence, dated
November
1981,
also
used
the "adjunct lecturer"
title
but did
refer to
a
quarter
limitation,
noting that
the appointee could accrue
a "maximum
sixteen quarters
allowed under
the University's so-calledfour-year rule."
Marcum's
sixteen quarters statement
was
probably an
inadvertent error, since
it
clearly conflicted
with
the systemwide computation formula, as well as with the formula
in the policy statement
he
distributed the previous June.
26
that
purported
to defer
the
locally effective
date of the
new
policy to
September
1,
1981,
still
prior
to
the
academic
year
for
which
reappointment
letters
had
been
issued.
This
notice,
sent to
interested
employee
organizations
including the
AFT
affiliate,
invited
comment
through meeting
and
discussion.
Bickal
1 s
notice
followed
the
filing
of the
instant
charge
and
an
attempt
at
the informal
settlement
conference
to
have
the
parties
resolve
the
dispute.
The
July notice,
however,
made no
comment
rescinding or placing in
abeyance
the
prior
appointment
letters
that reclassified lecturers
for the
coming
academic
year.
Nor
did the
notice
draw any
distinction
between
matters
within
local
campus
responsibility,
subject to discussion,
and
University-wide policy
distributed
17 months
before
by
President
Saxon
and, presumably, not
on
the
table.
Regardless,
on August
5, 1981,
AFT
representatives
conferred
with
campus
personnel
officials
Bickal
and
Barbara
Nielsen.
The
testimony about
that
meeting,
and
the
detailed
notes taken
by
an
AFT
representative
and
carefully
reviewed
by
Nielsen,
substantially
support findings that
the
reclassification
and
four-year rule
were systemwide
in nature
and
that modifications of the basic policy
were beyond
the
authority of the local
campus. One
substantive issue that
was
discussed as
a
local proposition
was
grandfathering.
As
to
that subject, the
AFT was
informed
that previously
employed
lecturers
working more
than
50
percent time could remain,
27
contingent
on
performance
reviews,
for
up
to six
years,
with
a
possibility
of
remaining through
the previous
eight-year
limit.13
Although
Nielsen
inserted
the
word
"proposed"
when
she
reviewed
references to
the
new
policy
in the
August
meeting
minutes,
she
gave
the impression
that
this
was
a
technicality
and
that
the
fundamental
aspects
of the
policy revision
were,
in
reality,
not
tentative at
all.
Nielsen
was
not
called
as
a
witness
to dispute
this
impression.
Also
inadequate
was
Bickals' testimonial
effort
to
support
Nielsen's
insertion that
the
new
policy
was
merely proposed
in
August 1981.
Bickal's
testimony
was
weakened
by
his
own
noticeable
embarrassment
attempting
to explain
the
scope
of
local
campus
authority.
This
was
also
apparent
when
he
was
examined
about
the
contradiction
between
the never-modified Spring
1981
reappointment
letters
and
the subsequent
statement(s)
that
implementation
was
delayed.
Additionally,
as
corroborative
evidence demonstrating the
ongoing implementation
and
effect
of the
new
APM
section
63
at
Santa
Cruz
during
this
period,
AFT
offered
hearsay testimony
13Later,
at
the formal hearing in
May
1982, Bickal
statedthat
the grandfathering policy
was
actually
a
full,
eight-year
maximum, and
not simply the six-years referred to in
August 1981.
The
charging party at
the hearing
and
its brief,
has
literally
jumped
to accept this additional concession,
while claiming that the inconstancy of the Santa Cruz
position
has caused confusion
and
distrust
on
the part of the
AFT.
28
about a lecturer named Donald Rothman, based, in part, on
admissions by a Santa Cruz administrator. According to the
AFT, Rothman had been promised security of employment and, when
the new rule went into effect, was approaching the end of his
eight years of service. Instead of simply being transitioned
into his permanent status, Rothman was required to compete for
an appointment as part of a recruitment search procedure.
Although the University offered no evidence to contradict this
example, it is given little weight as proof of a systemwide
policy altering technical eligibility for SOE. Relevant
documents show that the new policy still required a budgeted
FTE for such status and continued to allow accrual of temporary
lecturer service when an employee switched to the SOE track.
Unlike Woe's case, where the new policy was expressly
(mis-)applied, Rothman's situation appears to have been a
personal grievance unrelated to a new systemwide practice.
Last, regarding implementation at Santa Cruz, Marcum issued
another cover letter and draft policy in March 1982, stating
that implementation was anticipated no later than
July 1, 1982. Organizational comments were invited. No
mention was made about the presumed effectiveness of the policy
and reappointment letters between September 1, 1981 and
Marcum's notice seven months later. A principal difference
between the June 1981 and the March 1982 drafts was that the
latter document adopted the "visiting" lecturer title in
29
addition to
the "adjunct"
description,
thereby
placing
Santa
Cruz
back
in
step
with
the
systemwide
policy
set forth
by
President
Saxon
in
February
1980.
AFT
responded
to
Marcum's
March 1982
announcement
by
meeting with
him
on
April
8,
and
by
drafting
a
lengthy
analysis
of
local
campus
policy
on
quarterly
appointments
and on
measuring
quarterly
course
loads,
subjects
normally
delegated
to local authorities
by
the
systemwide
administration. Additionally,
the
AFT's
1982 comments
reminded
the Santa
Cruz
administration
about the
then-longstanding
union
criticism
of the four-year
limitation
and
the
pending
unfair
practice
charge
which
was
scheduled for hearing in
May
1982.
E.
Notice
to
AFT
of the Lecturer Policy
Change.
Substantial
evidence supports the
finding,
as
AFT
claimed,
that
notice
was
lacking
until shortly
before
this
case
was
initiated.
First,
and most
important,
Blakely', as
well as
University
officials
responsible for
labor-management
relations,
conceded
that prior to
this
charge being
filed
they
gave
no
official
notice to
AFT
of the
APM
policy
change
either
while
drafts
were
being
circulated in
1979,
or,
when
President
Saxon
issued the
new
APM
section
63
in February 1980. These
officials
included
Tom
Mannix
of the
systemwide
administration,
and
Philip
Encinio
at
Berkeley, neither of
whom,
according to their testimony,
even
knew
about the policy
change
until after
the charge
was
filed.
And,
although Blakely
testified that
under normal
30
procedure a copy of an early draft would have been sent to
Mannix' systemwide predecessor for redistribution to interested
employee groups, Blakely 1 s recollection was uncertain and there
was no additional evidence offered by respondent that the draft
actually was passed along. Moreover, as Mannix testified, the
University's systemwide administrators did not implement a
practice of routine formal notice to non-exclusive employee
organizations about proposed policy changes affecting matters
within the scope of representation until late 1981. For a
period prior to that time certain officials had taken the
position that non-exclusive representatives were not entitled
to such notice.14
Second, AFT officials convincingly denied having received
notice of the lecturer policy drafts and offical revision prior
to their own discovery of the fact in mid-1981. According to
the charging party, the AFT was not notified about the policy
change until Santa Cruz AFT members who were reclassified in
Spring 1981 communicated their concerns to the statewide
leadership in the University Council, the umbrella organization
of AFT affiliates. In turn, the statewide leadership
14The systemwide policy implemented in 1979, after the
HEERA went into effect, halting the prior practice of advance
notice to organizations about proposed policy changes regarding
matters within the scope of representation, is described in
fuller detail in Reents of the Universit of California
Lawrence Livermore Laborator ) (4/30/82) PERB Decision No. 212
(hereafter Lawrence Livermore Laboratory).
31
investigated the situation, discovered the new policy, and,
ultimately, filed the instant charge in June 1981.
Contrary to the urging of University counsel, the
administrative law judge rejects finding that the Sullivan
Report constituted actual notice to AFT of the later changes.
This rejection is based not only on the lack of consensus and
the tentative nature of the Report, but also on the fact that
it was not drafted and circulated as an APM revision or even a
formal proposal. Instead, the Report was merely the first step
in a gradual process and was expressly intended for further
meeting and discussion. Indeed, the new policy contained
significant differences from the Committee's proposals,
including: different titles, retention of the same salary
scale, and, ultimately, a full grandfathering policy as well as
accrual of lecturer service as time-on-the-clock for
professorial appointments.
Third, other evidence offered by respondent to impeach the
AFT claim of lack of notice was insufficient. At most, two
articles from the statewide AFT newspaper showed inadequate,
indirect and unofficial notice after President Saxon's
announcement.
The first article, in March 1980, was apparently written
after vague rumors of a possible policy change were heard at an
AFT conference at Santa Barbara in early February 1980. The
article focused on the long-term problems some lecturers had
32
had in receiving security of employment, and other criticisms
of inferior treatment of lecturers by the employer. The
article quoted Blakely and a staff associate about possible
future changes. Significantly, their comments focused on a
forthcoming policy revision that would enhance security of
employment potential:
According to Edward Blakely, the
administration is developing the policy using
the 1978 "Sullivan Report" as a guideline.
Blakely said the policy will offer an SOE
track for full-time lecturers parallel to the
professorial tenure track -- with an SOE
review at eight years and an "appraisal" of
the candidate's development at four years.
No mention was made in the article, or in Blakely 1 s
testimony, that AFT was informed in the pre-publication period
of the new APM revision that presumably was in its final
drafting stage and was due to be issued imminently.
The second AFT newspaper article, published in
November 1980, also fails to indicate actual notice of the
policy change set forth in new APM section 63. In general, the
November 1980 article was an organizational appeal designed to
inspire membership action on a host of employment practices
concerning lecturers. Although the article does contain an
ambiguous reference to the University contemplating changes to
make it more difficult for lecturers to attain SOE, implying
thereby that teaching opportunities would be decreased, no
specific policy is cited. Indeed, a fair reading of the
33
article indicates that AFT was concerned with the possible
allocation of visiting and adjunct titles to new lecturers, in
successive two-year blocks for a total of four years, and was
not describing any University plans to reclassify or terminate
previously employed lecturers. In any event, the article has
limited probative value as evidence of advance notice to the
AFT of a policy change since it appeared nine months after
Saxon's distribution of the new lecturer policy, and after
initial implementation steps throughout the system.
The University also offered a smattering of other evidence
to suggest advance notice to AFT. None of it, however, is
convincing. For example, the employer points out that one
member of the Sullivan Committee was a lecturer. However, this
individual was also an assistant academic vice-chancellor at
the Irvine campus and there was no evidence that she
represented AFT on the Committee or was a member of the
organization--assuming participation at that level of policy
conceptualization constituted notice of the employer's later
action. The respondent also argues that Blakely's yearly
appearances before the Legislature after 1979 to discuss
academic planning were overheard by AFT persons in attendance,
and that he assumed the organization knew of the new plans to
put a cap on teaching staff services. Yet Blakely could not
identify the AFT persons present, and his recollection about
the details of his appearances and the subjects raised was
incomplete and vague.
34
Similarly
unpersuasive
is
the
University's
suggestion
that
AFT
learned
about
the
policy
change
when
Blakely
was
examined,
with
AFT
counsel
present,
during the
PERB
unit
determination
hearings in
October
1980.
Administrative
notice
has
been
taken
that, at
the
time,
AFT
was a
petitioner
in proceedings
concerning the
appropriate
bargaining
unit
for
non-Academic
Senate
employees,
including
lecturers.
Blakely;s
testimony
reveals
that
he
did
refer
to
new
visiting
and
adjunct
title
codes as
part
of
a
policy
change, but
his explanation
was
insufficient
and
perhaps
unintentionally
misleading regarding
the
immediate
ramificiations
of the
change
as
well
as
the
definition
of
"visiting" lecturers.15
15see In
Re
HEERA
Professional Units,
No.
PC-1010
et
al.,
Phase
II,
Vol.
28
at
pp.
18-29, 65-72, 93-94.
Although
APM
section
63
was
introduced in evidence
and
Blakely
testified
that
a
reappointment
transition
process
was
under-way
(id.
at
p.
27), his direct
testimony
was
clouded
on
cross-examination.
For
example,
Blakely
was
vague
about the
impact
of the change:
Q.
Okay.
Now, you
talked
a
little
bit
about the
lecturer series.
Is
it
fair to
say
that
the
classifications
1500--I'm
sorry,
1600, 1602, 1605,
1
06, 1610,
1615 and
1619~
are
classifications
which
are
being
phased out?
A. I
wouldn't say
that.
I would
say
that
new
classifications
are being added.
Q.
Is
it
the intention of the University to
retain these
classifications?
A. Yes.
Q. So
that there will
be
then, instead of
35
Finally, little weight can be given to evidence that AFT
representatives at Santa Cruz asked personnel agent Nielsen
about a possible policy change as early as Fall 1980. This is
so, according to AFT 1 s uncontradicted testimony, because
Nielsen responded that she wasn't sure what the policy would
look like, and that informal talks were still taking place,
presumably between local and systemwide officials.
the current seven lecturer classes, there
will be 14 lecturer classes?
A. Whatever the number that were recited
earlier, they would be added to the list.
Now, the distribution of individuals would
change, but the classes would remain pretty
much the same.
Q. Is it the intention of the University to
continue to place individuals in the seven
classes that appear on Exhibit 12?
A. Yes. Those--some of those individuals.
(Id. at p. 65.)
Later, when asked if a person previously classified as a
"lecturer" would be reclassified to visiting status, Blakely
replied:
A. It is possible. It is possible, if they
are in fact a visitor.
Q. Okay. And when you say if they are in
fact a visitor, what do you mean by visitor?
A. If they are here for a temporary
purpose, they are replacing an existing
faculty member, they're offering courses
where we're currently recruiting for someone.
Q. Who makes that determination?
36
In sum, given the conceded absence of direct and official
notice of the substantial change expressed in new APM
section 63, the AFT 1 s denial of notice, the insufficiency of
the Sullivan Report as a substitute for actual notice of the
later change, the failure of the newspaper articles to indicate
specific foreknowledge about the revision, and the failure of
Blakely or any other witness to convincingly attribute clear
knowledge to AFT, it is found that AFT had neither actual nor
formal notice of the policy change.
E. AFT Meetings with Employer Representatives.
AFT representatives had meetings about the new lecturer
policy on July 28 and September 11, 1981 with systemwide
University agents (including Mannix and Okada); on
August 5, 1981 with Santa Cruz personnel officials (including
Bickal and Nielsen); and on December 21, 1981 and in March and
April 1982 with employer representatives at Berkeley (including
Okada}. The charge, as amended, alleges that discussions were
not conducted in good faith by the University because,
••• the Regents' representatives were not
invested with sufficient authority to come
to any agreements or understandings, or make
decisions based upon the discussion. In
addition, the actions which were the subject
of the meet and discuss sessions had already
been effected, and were not rescinded prior
A. The department, in the manner that I
described earlier, they make a proposal.
(Id. at p.72.)
37
to
the meetings.
The
Regents
essentially
presented
Charging
Party
with
a
unilateral
decision
not
subject to
change
as
a
result
of
said discussions.
(First
Amended
Charge,
p. 2.)
The
University,
in the testimony
offered
and
in
its
brief,
has conceded
that
its
representatives
lacked
authority
during
the
meetings
to
make
agreements
regarding modification of the
systemwide
policy decisions. Further,
the
lecturer
policy
was
not held
in
abeyance
or
rescinded
prior
to
the meetings,
although the degree
of
its
effectiveness
at
Santa
Cruz
was
a
matter in
dispute.
The
University claims, for
its
part, that
it
was
willing to
entertain
AFT
questions
at
the meetings,
and
give
immediate
answers
where
possible
and
supplemental responses
where
required.
For
example,
after
the
July
28,
1981
meeting
at
which
the
range
adjustment
issue
was
raised,
Mannix
supplemented Okada's
oral
assurance
by
soon
thereafter
sending
Blakely
1 s
June 22,
1981
written
clarification
to the
AFT.
University witnesses also
testified
that
they
were
prepared
to receive
any
AFT
proposals for modifications of the
lecturer
policy.
Mannix,
for example,
stated that
although
he
lacked
authority
during the meetings
to
reach agreements with
a
non-exclusive representative,
he was
prepared to
convey
AFT
proposals for consideration
by
officials
responsible for
promulgating the lecturer rule change.
The
record
is clear
that
AFT
posed
inquiries,
and engaged in lengthy dialogues
and
38
critiques
about the
new
rule.
However,
since the
AFT
objected
that
it
could not
offer
proposals
in the
face
of
a
fait
accompli,
its
representatives refrained
from making
concrete suggestions.
The
principal variation
upon
this
largely
uncontested
record
involved the
status
of the
new
policy
at
Santa Cruz.
Throughout
the hearing
and
in
its
brief,
the
University
took
the
position that
there
was
(and
still
is)
no
revised
lecturer
policy
in
effect at
Santa
Cruz,
and
thus
no
fait
accompli
confronting
AFT's
representatives.
As
of the
time
of the
formal
hearing, the University
contended
that, at
most,
only
title
changes
had
occurred
and
that pre-existing
terms
and
conditions of
employment
remained
in
effect.
Persuasive evidence,
however,
supports
a
finding
that,
when
the
parties
met
to discuss
the
issue,
the basic
terms
of the
revised
lecturer
policy
had been implemented
at
Santa
Cruz
by
mid-1981.
(See
pp.25-30,
~ra.)
First,
the
heart
of the
policy
at
issue in
this
case
was
a
systemwide
policy
for
a
four-year rule
over
which
Santa
Cruz
officials essentially
admitted,
on August 5, 1981, they
had no
control.
Second,
initial
reclassification letters
were
sent out in
1981. There
was no
subsequent disclaimer either rescinding the
letters
or
tolling
the accrual of quarterly service
under
the four-year
rule. Third,
AFT
witnesses present at
the August 5, 1981
meeting
credibly testified,
in accord with the notes of the
meeting, that revision of the lecturer policy
was
39
predetermined, and that AFT representatives could have
influence, if at all, only over subsidiary local matters
traditionally left to campus discretion; for example,
reappointment review procedures, quarterly course load counting
formulas, and so on.
Last, even the authority of Santa Cruz officials to
determine a grandfathering limit, first omitted from any
reference in the June 1981 draft, then stated as six years in
August 1981, and later amended to a full eight years during the
formal hearing, was presented as a campus prerogative that
flowed from a fundamental systemwide policy determination
expressed in Blakely's May 15, 1980 letter. Hence, although
AFT could discuss at the local level at Santa Cruz (and
Berkeley) the campus grandfathering rules, it was unable to
meet and discuss a uniform, consistent statewide policy either
prior to the 1980 course of action, or, for that matter, at the
meetings with Mannix and Okada in July and September 1981. At
those latter meetings, the grandfathering policy was stated as
a local discretionary subject and Mannix was unwilling to
entertain questions that departed from the systemwide limits of
his authority.16
16one result of this strict limitation on the meeting
agenda was that Mannix eventually terminated the July 28
discussion when he felt that AFT exceeded the scope of the
session, as he had fixed it, by raising questions based on
local campus examples.
40
CONCLUSIONS
OF
LAW
A.
Introduction.
The AFT
contends
that
the
University
unlawfully
altered
established practice
regarding the
terms
and
conditions of
lecturer
employment,
including the
maximum
duration of
full-time service.
It
is
argued
that
these
changes
violated
the
HEERA
because
the
new
lecturer
policy
was
adopted
without
first
giving
notice to
the
AFT
and an
opportunity to
meet and
discuss
the changes.
To
support
this
claim,
AFT
relies
on
the
PERB
1 s
decision
in
State
of
California
(3/19/80)
PERB
Decision
No.
118-S
(hereafter Professional Engineers),
interpreting
the
State
Employer-Employee
Relations
Act (Govt.
Code
sec.
3512,
et
seq., hereafter
SEERA),
as
well
as
on
subsequent
cases applying
that
precedent
under
the
HEERA.
See,
e.g.,
California State
University,
Sacramento (4/30/82)
PERB
Decision
No.
211-H;
Lawrence
Livermore
Laboratory,
supra,
PERB
Decision
No.
212-H;
California State University,
Hayward
(8/10/82)
PERB
Decision
No.
231-H. (Also
see
Department
of Corrections (5/5/80)
PERB
Decision
No.
127-S
and
Franchise
Tax
Board
(7/29/82)
PERB
Decision
No.
229-S, applying
Professional
Engineers in other
SEERA
cases.)
Under
this line of authority,
an employee
organization,
though a
non-exclusive representative, is entitled to
advance
notice
and a
reasonable opportunity to
meet and
discuss in
good
faith proposals for fundamental changes in terms and
conditions
41
of
employment.
The
Board's
decisions in
this
area are intended
to preserve,
pending
the
selection
of
an
exclusive
representative, rights
comparable
to
those
that
existed
under
the
George
Brown
Act (Govt.
Code
sec.
3525
et seq.),
the
statutory
predecessor
to
the
HEERA
and
the
SEERA.17 The
Board
has
left
to case-by-case
adjudication
a
determination of
the
employment
changes
covered
by
this
obligation
and
the
precise
nature
of the duty
to
provide
notice
and
to
meet.
In
its
opposition
brief,
the University
does
not
dispute
the underlying
premise
that
a
non-exclusive
representative
is
entitled
to
advance
notice
and an
opportunity to
meet and
discuss
proposed changes
under
the Professional
Engineers
doctrine.
The
University contends,
however,
for
a
variety
of
reasons discussed
below,
that
its
obligations
were
satisfied
under
the
facts
of
this
case.
17section
3530
states:
The
state
by means
of
such boards,
commissions,
administrative officers
or other
representatives
as
may be
properly designated
by
law,
shall
meet
and
confer
with
representatives of
employee
organizations
upon
request,
and
shall
consider as
fully
as
such
representatives
deem
reasonable
such
presentations
as are
made by
the employee
organization on behalf of
its
members
prior
to arrivin at
a
determination of
lie
or
course
o
action.
(Emp
as1s
a e
.)
Also see State
Assn. of Real Property Agents v. State
Personnel
Bd. (1978) 83 Cal.App.3d 206, and
East Bay
Mun.
Employees Union v. County of
Alameda (1970) 3 Cal.App.3d 578.
42
B.
Changes
in
Employment
Terms
and
Conditions.
There
is
substantial
evidence
that
the
University
altered
an
established
policy
affecting
a
fundamental
aspect of
the
employer-employee
relationship. Specifically,
new
APM
section
63
replaced
the
eight-year rule limiting
the
duration
of
full-time lecturer
appointments with
a
four-year
rule for
newly
classified
employees
on
the
visiting
or
adjunct
lecturer
tracks.
A
supplementary
grandfathering policy
was
also
adopted
to
assist
implementation of the changeover.
One
argument
made
by
the
employer,
that
the continued
existence
of yearly
appointment
contracts
shows
the absence
of
a
change
in
this
case,
must
be
rejected
on
the
basis
of
the
evidence.
Although such
contracts
were
used, as provided
by
the
APM,
yearly
agreements did not
represent
the
sole
practice
relevant to
maximum
employment
duration for
full-time
lecturers. If
so,
this
case
would
not
have
arisen,
nor would
the Sullivan
Committee have had
a
reason
to
exist.
Thus,
the
evidence
showed
that established
cumulative
practice
was
to
grant yearly contract
renewals, for
up
to eight years, absent
class
or program
changes,
poor performance or
financial
exigency.
The
Sullivan Report, as well as
numerous
witnesses,
referred to this practice
and
the reappointment expectations
created thereby.
The Board has
applied
a
similar analysis to
conclude
that the cumulative
effect of setting
annual
wage
increases at certain
times established
a
practice that could
43
not
be
unilaterally
altered
without
meeting
and
negotiating.
Davis
Unified
School
District
(2/22/80)
PERB
Decision
No.
116
at
pp. 9-11.
Also
see
San
Jose
Community
College
District
(9/30/82)
PERB
Decision
No. 240
(yearly school calendar
established
by
cumulative
practice)
.18
It
is
also relevant to
the
issue
of
whether
a
change
occurred
that
the
duties
of
lecturers
on
the dual
tracks
stayed
essentially
the
same
after
the
new
policy
was
promulgated,
and
that
the
crucial distinction
involved
clarification
of those
lecturers
projected to receive
SOE.
Therefore,
it
cannot
be
concluded, as in
a
layoff
or school
closing
situation, that
the
University
was
redefining
the
tasks to
be
performed, perhaps
for reasons of
economic
need, and, in
that
sense, exercising
a
18on
this
issue,
the
University's reliance
on Board
of
Regents
v.
Roth (1972) 408
U.S.
564 and
related authority
is
misplaced. In
that case,
a
tenure track
employee
acquired
no
reemployment
property
right
by
virtue
of
his
one-year
appointment.
His
claim for
a
pre-termination internal
hearing
was
denied.
More on
point,
in
terms
of long-term
employment
expectations, is
Perry v.
Sindermann
(1972) 408
U.S. 593,
decided the
same
day as Roth.
In
Sindermann,
the
Supreme
Court
concluded
that
a
non-tenured
employee
for
10
years
was
entitled
to
produce evidence
showing
that his legally
cognizable
expectation of
reemployment
was
breached because
of his
exercise of free speech. In finding
a
prima
facie case, the
allegations
of longstanding renewal
practice conferring
an
implied
benefit
were
sufficient to
overcome
the conceded
absence of formal reappointment
rights
under
the
employee
1 s
one-year
contracts.
In any
event, the
AFT
is
not presenting
a
civil rights
claim
on
behalf of individual
employees, but has
invoked the
PERB's
jurisdiction to vindicate
an
organizational
right to represent
employees on an
employment-related
practice
controlling the express terms of
a
personal agreement.
44
management
prerogative
over
the
organization
and
distribution
of
work,
or
over
a
matter of
entrepreneurial necessity.
Compare
Newman-Crows
Landing
Unified
School
District
(6/30/82)
PERB
Decision
No.
223;
also
see
First
National
Maintenance
Corp.
v.
NLRB
(1981)
452
U.S.
667.19
Rather, the
change
to
the four-year
rule
more
closely
approximates
a new
rule
on
termination
or
mandatory
retirement
reflecting
an
employer's
discretionary
policy preference
about
how many
years
certain
work
should
be
performed
by
a
single
person.
See
Holtville
Unified
School
District
(9/30/82)
PERB
Decision
No.
250
at
p.
8,
citing
Inland
Steel
Co. (1948)
77
NLRB
1
[21
LRRM
1316],
en£.
(7th
Cir.
1948) 170
F.2d
247
[22
LRRM
2505];
also
see
The Shaw
College
(1977) 232
NLRB
191,
203-205
[96
LRRM
1473]
rev.
in
part
(6th
Cir.
1980)
623
F.2d
488 [105
LRRM
2509].
Further, since the
change
involved
a
reduction
by
four
years, or
50
percent, in the
maximum
duration
of
employment,
there
can be no
serious dispute that
the
change
affected
fundamental
aspects of the
employment
relationship;
the job as
19similar or
idential
prov1s1ons
of the National
Labor
Relations
Act
(NLRA),
as
amended,
19
u.s.c.
sec.
151,
et seq.,
as construed
by
the National
Labor
Relations
Board
(NLRB)
and
the
courts,
may
be used
to guide
interpretation
of the
HEERA.
See,
e.g.,
San Diego Teachers Assn. v. Superior Court (1979)
24
Cal.3d 1, 12-13; Fire Fighters
Union
v. Cit of Vallejo
(1974) 12
Cal.3d 608, 616.
45
a whole, as well as wages and hours, in particular. Other PERB
cases involving the notice and meeting rights of non-exclusive
representatives have concerned changes of comparable or less
significance: a yearly wage increase (Professional Engineers);
parking spaces (Franchise Tax Board); time clocks (CSU
Hayward); access policy (CSU Sacramento).
For these reasons, the decision to make the change, and not
merely the effects of the decision, would be within the scope
of representation under traditional collective bargaining
principles. See, e.g., Anaheim Union High School District
(10/28/81) PERB Decision No. 177. In keeping with these
principles, the HEERA also provides for representation
regarding "wages, hours of employment, and other terms and
conditions of employment." (Sec. 3562(g) .)
In other respects, however, the AFT has not sustained its
burden of showing, by a preponderance of the evidence, that
additional changes were made in fundamental terms and
conditions within the scope of representation.
For example, AFT argued that opportunities for SOE were
restricted by virtue of the new rule. But no alteration was
made in APM's longstanding requirement of a budgeted FTE
position as a prerequisite for granting SOE. Also, the APM
continues to allow lecturers in the new classifications to
apply their accrued years of service toward the eight-year
limit if eventually assigned to an SOE slot. In that sense,
46
lecturers
in
the
new
classifications
remain
technically
eligible
for
SOE,
as they
had
been
before.
And,
regarding the
claim
that
a
full-scale
recruitment
search
now
replaces the
prior
SOE
transition
process, there
is
evidence
of
only
one
such
instance,
involving
Donald
Rothman
at
Santa Cruz,
and
that
evidence,
aside
from
being
hearsay,
has
little
probative
value
in
showing an
alteration
of
an
established
systemwide
policy.
Sufficient
evidence
is
also
lacking
that
the
new
APM
policy
altered
such
traditional
aspects of the
employment
relationship
as
salary,
retirement
benefits, travel
allowances,
and
so on.
Although
one
campus
administrator
concluded
that
range
adjustments did not apply
to
newly
classified "visiting"
lecturers, this
decision
was
reversed, apparently
because
the
new
policy expressly
maintained
a
salary scale
parallel to
the
scale
for
permanent
track
lecturers.
Travel expenses for
professional
advancement
also
remained
discretionary within
the
department or
laboratory,
as they
had been
in the
past.
In
fact,
in
most
respects,
the
texts
of the
new
and
old
policies
are identical
in specifying
terms
and
conditions.
In
one
particular,
however,
APM
133, as
revised following
the adoption of
APM
63, did
entail
a
change; namely,
in barring
use
of accrued time for
lecturer service
toward computing the
eight-year limit
for tenured professor appointments.
As
the
Sullivan Report explained, the University rationale for
this
policy decision
was
that research
was
not
a
required
47
qualification for lecturer service, but should be a requirement
for professors on the tenure track. Thus, it was reasoned that
it would be unfair to prejudice those seeking tenure by
decreasing the amount of time allowed to meet the productive
research qualifications. Nevertheless, by late 1981 this
policy change was retracted and professorial time-on-the-clock
presently includes, as in the past, service in the new lecturer
positions.
Assuming, however, that this modification had not occurred,
AFT failed to show that time-accrual for tenure positions was a
fundamental lecturer concern. First, promotion to the tenure
track apparently has been infrequent and outside the normal
line of progression. Second, the scope of representation under
the HEERA specifically excludes,
[P]rocedures and policies to be used for the
appointment, promotion and tenure of members
of the academic senate ••••
( Sec • 3 5 6 2 ( g) ( 4 ) • )
In any event, even if the subject is within scope, the AFT
offered no testimony on this issue demonstrating its
fundamental importance. Also, the little evidence presented in
respondent's case, derived from the Sullivan Report, suggests a
valid management distinction between positions that require
research and those that do not.
Similarly, there is insufficient evidence that the mere
change in title, by itself, warranted advance notice and
48
meeting
and
discussion
as
a
fundamental
aspect
of
employment
relations.
Although employees
may
have
subjectively preferred
an
unadorned
lecturer
title,
believing
that
the
new
title
symbolizes
a
demotion,
an employer
is
presumably
free to
designate
the
titles
it
uses
to
keep
track
of
its
employees
absent
evidence
that
a new
title
actually affects
employee
interests.
Here,
AFT
offered
no
evidence
of
objective
employee
interests
regarding the
importance
of
the
title
alone in the
professional
field.
Rather, the evidence
shows
that
the
title
change
was
of demonstrable
significance
only because
it
was
related
to
adoption of
a
four-year duration rule distinguishing
two
employee
categories in
terms
of
predetermined
SOE
eligibility.
Last, the University
contends
that
no
change
of
policy
has
yet occurred
at
Santa Cruz.
As
the evidence demonstrates,
however,
the
systemwide
administration's
new
policy
was
"effective
immediately" throughout the University
system and
was
implemented
during the
remainder
of
1980 and
into
1981.
The
evidence
also supports the conclusion
that
the apparent
authority of Santa
Cruz
officials
to delay implementation,
and
to
meet over
local issues,
did not
also
extend
to altering
the
four-year
systemwide
policy distributed
by
President
Saxon.
Local delay in implementation
may
affect
the
need
to apply
a
remedy,
if
a
violation is
found, but
a
delay does not
alter
the basic fact that
a
statewide change occurred. For example,
49
in Newark Unified School District (6/30/82) PERB Decision
No. 225, the Board affirmed a finding that a school board 1 s
unilateral approval of a layoff resolution was unlawful. But,
since actual reductions in force were never fully implemented
at specific school sites, there was no need for a reinstatement
remedy.
C. Notice of the Proposed Policy Change.
In its defense to this aspect of the charge, the University
first contends that the Sullivan Report and the follow-up
meeting(s) in 1978 provided sufficient notice of the eventual
policy change to satisfy the University's duty under the Act.
The Report and subsequent discussion(s), however, were
tentative suggestions as part of a gradual process leading to a
formal policy change. The University also indicated that
further discussion would occur with employee organizations as
the drafting steps proceeded and that the APM would remain
operating policy. In the end, the ultimate policy also
differed from the Sullivan Report in several ways: title,
salary scale, time-on-the-clock, and grandfathering, among
others.
For these reasons, this case is markedly different from
Lipow v. Regents of the University of California (1975)
54 Cal.App. 3d 215, cited by the Regents. In Lipow,
substantial meeting and discussion had taken place regarding an
actual proposal to modify a section of the APM, and some union
50
suggestions had been accepted by the employer. The court
affirmed dismissal of the union's claim that the University did
not satisfy its duty to provide notice and to meet with the
union in good faith prior to adoption of the proposal.
Additionally, the facts in this case are different from
those before the PERB in Franchise Tax Board, supra. There, an
actual policy change regarding employee parking privileges had
been proposed for future implementation and, after the union
had notice of the change, the employer met with the union to
consider its views prior to the effective date of the new
policy. Here, the initial meetings did not provide advance
notice of a specific plan or course of action.
As a second contention, the University claims that the AFT
had sufficient notice of the forthcoming change, at least in
early 1980. Indeed, the AFT newspaper articles, in March 1980
and November 1980, reveal that the AFT was aware of possible
future changes in guidelines for receipt of security of
employment. Yet, there was no evidence in those articles that
specifically referred to the cut-back of the eight-year rule
that had already occurred. Significantly, Blakely, who was
interviewed for the articles in question, offered no testimony
that AFT was informed of the rule change even though a
year-long drafting process had culminated in President Saxon's
policy announcement on February 22, 1980.
Other evidence of AFT awareness of rumors of possible
51
changes amounted to no more than that; for example, the inquiry
to Nielsen in Fall 1980 by a Santa Cruz AFT representative, or
Blakely's legislative testimony being overheard by AFT
members. As stated in similar circumstances:
.[C]onjecture or rumor is not an
adequate substitute for an employer's formal
notice to a union of a vital change in
working conditions •••• (NLRB v. Rapid
Bindery, Inc. (2d Cir. 1961) 293 F.2d 170
[38 L 2 at 1663] .)
And, even if Blakely referred to the new policy in the PERB
unit hearings in October 1980, his testimony was less than
clear as to its scope and impact. Regardless, the employer
offered no evidence to support a conclusion that a testimonial
disclosure to counsel in a complex, lengthy proceeding provided
a satisfactory basis to make an agency finding attributing
knowledge to the organization itself. Cf. Los Angeles
Community College District (10/18/82) PERB Decision No. 252, at
pp. 17-18.
In the final analysis, substantial evidence supports the
AFT's claim that advance notice was not given in this case.
AFT representatives unequivocally denied receiving such
notice. Their testimony was not discredited. And University
officials in a position to inform AFT, in accord with the
promises made in 1978 after the Sullivan Report issued,
testified that they gave no direct formal notice to the union
about the later drafts and President Saxon's pronouncement.
These officials included Blakely, with chief responsibility for
52
preparing the rule change, Mannix; the University's systemwide
labor relations manager, and Encinio, Berkeley's labor
relations coordinator. In fact, Mannix and Encinio testified
that they didn't even know about the change until the present
charge was filed.
The conclusion that advance notice was not given is also
consistent with University policy at the relevant time. In
1979 and 1980, after HEERA went into effect, the University had
halted its past practice of providing advance notice to
employee organizations regarding changes that affected terms
and conditions of employment within the scope of
representation. The PERB has held, in Lawrence Livermore
Laboratory, supra, that this policy change was itself a
violation of the HEERA.
On the notice issue, viewed charitably, the academic
policy-making branch of the systemwide administration operated
with an unspoken assumption that others within the University
apparatus, either systemwide labor officials or local campus
managers, were undertaking responsibility for securing employee
organization feedback in 1979 and 1980. Unfortunately, and
perhaps not surprisingly in such a large institution, this
unspoken assumption was not carried out since normal
communication procedures were not utilized either by Blakely's
office or by local chancelleries. AFT should not be required
now, simply because it may have had inklings that changes were
53
in
the
wind,
to
pay
the
price
for
the
University's
failure
to
provide continuing
notice
as
the
University
had
promised
in
1978.
D.
Meeting
and
Discussion
About
the Policy
Change.
The
University's
first
line
of defense
to
this
aspect of
the
charge
is
that
the
1978
meeting(s)
after
issuance of the
Sullivan
Report
satisfied
its
duty
to
meet
with
the union.
As
noted above, however, both
the
Report
and
the follow-up
consultation
were
cast
in
a
tentative
framework and
did
not
involve
an
actual
proposal to
modify
employment
conditions.
The
University
promised
that additional opportunities
would
be
available to
AFT
to
comment
once
the
drafting
process
was
further
along.
Again,
the
Lip
w
decision
is
distinguishable
since
the
union
in
that
case
was
on
notice that
formal changes
to
modify
the
APM
were
being
discussed
and
that final
adoption
was
forthcoming.
The
University's
secondary
defense,
that
the
1981
meetings
at
systemwide and
local levels
were
sufficient
as
a good
faith
means
of
entertaining
AFT
views,
is
also
without supportive
evidence.
As
the
PERB
has
stated,
in connection with
the
timing of
an
employer's action
as an
indication of
its state
of
mind,
•••
the obligation
imposed by
the
statute
•••
with respect to non-exclusive
representatives is to provide
a
reasonable
opportunity to
meet and
discuss
wages
withthem
prior to the time the employer reaches
54
or takes action on a policy decision.
(Professional Engineers, supra, at p. 10;
emphasis added.)
Here, not only did the meetings occur 17 months or more
after-the-fact, but the University never gave any indication
that the new rule had been placed in abeyance or was
rescinded. At best, AFT was in a position in 1981 of
consulting about why the status quo should be restored, without
any University indication that such a possibility would be
seriously considered. For this reason, the facts are
distinguishable from those in Department of Corrections, supra,
cited by the University. In that case, the employer expressly
delayed implementation of new policies regarding on-site
organization rights pending discussion of union views.
Additionally, the absence of authority by University
representatives to reach agreements modifying the previously
adopted systemwide policy is an indication that the employer
did not approach the 1981 meetings with the requisite good
faith. In comparison, in Franchise Tax Board, supra, the Board
found that one factor supporting a good faith finding was that
the employer's meeting representatives had the necessary
authority to reach modifying agreements with the union.
Even if the absence of authority is not conclusive evidence
of an employer's bad faith when meeting with non-exclusive
employee organizations pursuant to Professional Engineers,
several factors add to the importance of the lack of authority
55
within the totality of circumstances. These factors include
the serious nature of the policy change, the fact that it was
17 months old by the time of the first meeting in June 1981,
the admitted lack of official notice of the February 1980
decree, and, possible settlement of the pending unfair practice
charge. Taken together these factors warranted a responsive
overture by the University beyond the simple motions of
attending a meeting prior to reporting to higher officials.
See, e.g., NLRB v. Herman Sausage Co. (5th Cir. 1960)
275 F.2d 229, 231-232 [45 LRRM 2829] .20
The University nevertheless contends that the AFT did have
an opportunity to present proposals to modify the already
adopted policy revision and yet declined to offer suggestions,
thereby waiving its right to complain about the employer's
conduct. But the AFT's failure to make concrete proposals does
not bar a finding of employer bad faith since the AFT also
stated its objection to meeting over a fait accompli. This
conclusion might differ had the employer given some hope or
20The University posture during the 1981 talks was in
contrast not only with legal principles requiring good faith,
but with everyday understandings about interactions. For
example, according to the dictionary, one definition of
"listen" is "to hear with thoughtful attention, consider
seriously, heed," and a definition of "discuss" implies "a
reasoned conversational examining, esp. by considering pros and
cons, and an attempt to clarify or settle •.• " (Webster's
International Dictionary, unabridged (1976).)
56
assurance that the policy would be rescinded or held in
abeyance while the union's views were being seriously
considered. The University did not choose such a course.
Under such circumstances, absent indication of a true open mind
on the University's part about a decision not firmly made, the
AFT could reasonably believe that formulation of modifying
proposals would be futile. See San Mateo County Community
College District (6/8/79) PERB Decision No. 94 at p. 22, citing
Caravelle Boat (1977) 227 NLRB 1355 [95 LRRM 1003].
In other respects, however, the AFT has not demonstrated
bad faith at the campus level regarding matters delegated by
the systemwide administration to local management.
To the extent Santa Cruz officials met with the AFT about
implementation of local aspects of the new policy, there is
insufficient evidence of bad faith by the employer. Testimony
and documentary evidence about the August 1981 meeting and the
follow-up discussions in 1982 indicate that there was
substantial give-and-take over local issues such as course-load
and quarterly service formulas. These issues were reserved to
local authorities under established policy both before and
after the new APM section 63 was adopted.
Less evidence was introduced regarding the Berkeley campus
meetings in late 1981 and early 1982. At most, however, the
AFT showed only that local officials were unfamiliar with the
new systemwide policy, particularly the grandfathering rules,
57
and
were
thus unprepared
to
discuss
local
aspects
of
that
unilateral
decision.
Local
efforts
to get
more
detailed
information
from
systemwide
administrators
were
unavailing for
several
weeks.
As
such,
AFT's
complaint of
bad
faith
focuses
not
upon
the
local
agents but
upon
confusion surrounding
initial
formulation
and
implementation
of the
policy.
If
not
incriminating
as
to
Berkeley, perhaps
this
evidence
adds
another
indication
of
systemwide
bad
faith
since
local
authorities
were
apparently
given
little
guidance in
dealing
with
union
representatives
on
the
issue.
E.
Statute
of
Limitations.
Respondent's
final
defense
is
based
on
section 3563.2(a),
of the
Act,
which
provides in
relevant
part:
•••
that
the
board
shall
not
issue
a
complaint
in respect
of
any
charge based
upon an
alleged unfair
practice
occurring
more
than
six
months
prior to
the
filing
of
the charge.
AFT's
charge
was
filed
on
June
3,
1981,
clearly
more
than
six
months
after
the February 22,
1980
systemwide
policy
change
announced
by
President
Saxon. However,
AFT
convincingly denied
knowledge
of the rule
change
until
Spring 1981,
when members
expressed
their
concerns about
title
changes
at
Santa Cruz;
and, the University's
key
representatives--Blakely,
Mannix--admitted they provided
no
direct official notice.
Nor
did respondent introduce
any evidence
that
AFT
bore the burden
to
know about the
new
policy decree
more than six
months
prior
58
to the charge. To the contrary, the University 1 s
representatives at the June 1978 meeting promised to keep AFT
informed and involved in the policy formulation process and, by
such conduct, could have lulled AFT into a sense of security
about forthcoming opportunities to express union views.
Similarly, neither rumors at Santa Cruz about potential
changes in Fall 1980, nor Blakely 1 s interview with the AFT
newspaper, nor his legislative testimony, nor the PERB unit
hearing record, offer substantial evidence that AFT should have
known about the parameters and effect of the new four-year
rule. It is striking, on this point, that there was ample
opportunity during the relevant time period for Blakely to
provide such information to AFT agents. However, as he
conceded, he never gave direct, official and unambiguous notice
of the policy change and merely assumed that other University
officials were informing union organizations.
In sum, since the University has not demonstrated that AFT
clearly and unequivocally knew or should have known about the
new policy and its effect more than six months prior to filing
the charge, the time-bar affirmative defense has not been
sustained. ACF Industries, Inc. (1978) 234 NLRB 1063
[98 LRRM 1287]. Alternatively, based on the University 1 s
representations in June 1978 promising further opportunity for
union comment before an actual policy change was proposed and
made, and the AFT 1 s apparent reliance thereon, the employer
59
should
be
estopped
from
asserting
the
statute
of
limitations
defense.
San
Dieguito
Union High
School
District
(2/25/82)
PERB
Decision
No.
194
at
p.
15.
F.
Violations.
Based on
the
above
analysis,
it
is
concluded
that
the
University,
without
justification,
failed to
give the
AFT
advance
notice
and a
reasonable opportunity
to
meet
and
present
its
views
prior
to
the
employer
arriving
at
a
decision
to
alter
a
fundamental
aspect of the
employment
relationship.
Under
the
Professional
Engineers
doctrine, respondent's
conduct
was
unlawful
in
two
ways.
First,
the employer's
action
deprived
AFT
of
its
organizational right to represent
employees
under
the Act, in
violation
of
section 357l(b).
The
AFT
was
required to rely
on
the
employee
grapevine,
was
hampered by
vague
and
incomplete
information,
and
could
meet
only over
a
fait
accompli. Second,
respondent's action concurrently
violated section 357l(a):
employees
were
inherently
harmed by
interference
with
their right to
be
represented
by
the
AFT
prior to the employer's
decision.
This conclusion
is
reinforced
because
the
AFT
was
already
on
record,
on
behalf of
the
same
employees, as having an
interest
in the eventual
decision.
In
its
response, the University
has not
come
forward
with
any
defense reasonably based on
operational necessity
sufficient to
outweigh the
interests
of the
AFT
and
lecturer
employees, and the balance must
therefore
be
struck in
their
favor.
60
REMEDY
Section 3563.3 of the Act states:
The board shall have the power to issue a
decision and order directing an offending
party to cease and desist from the unfair
practice and to take such affirmative
action, including, but not limited to, the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
The traditional remedy for an employer's unilateral
decision to change a term or condition of employment includes
an order that the employer cease and desist, meet with the
union upon request, and make employees whole by restoring the
status quo and other benefits previously received. See, e.g.,
Oakland Unified School Dist. v. Public Employment Relations Bd.
(1981) 120 Cal.App. 3d 1007, 1014, citing Fibreboard Corp. v.
Labor Board (1964) 379 U.S. 203 and Office and Professional
Emp. Int. U., Local 425 v. NLRB (D.C. Cir. 1969) 419 F.2d 314
[70 LRRM 3047]. Normally, back pay owed as a result of
unlawful action would be computed, with interest, from the date
on which an employee's job was terminated until the date such
termination would have been permissible (for example, for
financial reasons, unsatisfactory work, program cancellation,
and similar causes); or, until the wrongdoing is cured by an
actual reinstatement offer or sufficient employer bargaining
with the union. Gorman, Basic Text on Labor Law (1976), p. 533.
The University advances several arguments against utilizing
this traditional approach:
61
•.•
given the unusual
factual
circumstances
of the case
at
bar,
the
remedy
should
be
quite
narrowly
drawn.
It
should
affect
only
those
lecturers
initially
appointed
under
the"old"
rule
and
adversely
affected
thereby,
i.e.
individuals
who
were
not
reappointed
because
of the
existence
of the
new
rule.
It
~not
require
reappointment
of
lecturers
who
would
not
otherwise
be
reappointed
because
of
programmatic
changes,
financial
exigencies
or
unsatisfactory
work
performance.
Further,
it
should not extend
beyond
the Berkeley
and
Santa
Cruz campuses
since
charging
party
introduced
no
evidencewhatsoever as
to
the
situation
existing
at
any
other
campus
or
laboratory
of the
University of
California.
In
addition,
at
the
time
respondent
issuedthe
new
policy
no
obligation to
meet and
discuss
proposed changes
affecting
an
employee's
wage
or
hours
had
been imposed on
public sector
employees
by
the
PERB.
Instead,
the only
relevant
PERB
decision
was
to
the
contrary.
(Respondent's
Brief
at
pp. 39-40;
citation
omitted;
emphasis
in
original.)
The
University contends,
therefore, that
any remedy
should
be
restricted
along the
lines stated,
and
should
include only
a
limited restoration
of the
status
quo and a
partial
make
whole
award. In
the
University's
view, such
a remedy would be
comparable
to the
NLRB's
in Transmarine Navigation
Corp.
(1968)
170
NLRB
389 [67
LRRM
1419],
cited
with approval in Highland
Ranch
v.
Agricultural
Labor
Relations
Bd. (1981) 29
Cal.3d 848,
862.
The
University's suggested narrowing of the
traditional
remedial approach
is rejected.
First,
although the employer
correctly observes that the
62
Professional
Engineers
decision
under
SEERA
in
March
1980,
one
month
after
President
Saxon's
announcement,
implicitly
modified
pre-existing
Board
precedent
under
the Educational
Employment
Relations
Act
(see
San
Dieguito
Union High
School
District
(9/2/77)
PERB
Decision
No.
22), the lack of
clear
precedent
under
the
new
HEERA
does
not alone provide
a
defense
to the
charge
nor
grounds
for
limiting
the
remedy.
Anaheim
Union
High
School
District
(3/26/82)
PERB
Decision
No. 201
at
pp.
6-7.
And,
despite early
precedent
under
different
legislation,
the University
was
presumably
aware
of the
potential
shift
in
the Board's
analysis
as
well as the remedial hazards for
unilateral
action
denying
organizational
rights.
For
example,
five
months
before
President
Saxon's
distribution,
in
Santa
Monica Community
College
District
(9/21/79)
PERB
Decision
No.
103,
aff.
(1980) 112
Cal.App.3d
684,
the
PERB
had
strengthened the
representation rights
of non-exclusive
representatives, distinguishing
and
limiting
San
Dieguito in
the process. Administrative notice also
has been
taken
of
a
case
relied
upon by
the University in favor of
a
narrow
remedy.
It
is
revealing that
in
that case,
just
three
weeks
before the
new
lecturer policy
was
announced, the
PERB
secured
an
injunction against the University to restrain unilateral
action that
extended the printing plant
work week. (See
Printing
Trades Alliance v. Regents, Case No. SF-CE-5-H,
proposed decision 9/28/82;
and PERB
v. Regents of the
63
University of California, Alameda County Superior Court,
No. 529-614-1.)
Moreover, the University's new policy under the HEERA of
declining to give advance notice of employment changes to
non-exclusive representatives was already under attack. (See
Lawrence Livermore Laboratory, supra.) It must be assumed the
University was on guard about legal dangers it faced if the
same policy remained in effect. Also, the February 1980 policy
decision was followed within a few weeks by Professional
Engineers, but in succeeding months the University distributed
clarifications and revisions at systemwide and local levels,
again without advance notice to the AFT.
Under such circumstances, when weighing the equitable
considerations raised by the employer, it is apparent that the
University was not as ignorant of its responsibilities as it
presently suggests. Even assuming some uncertainty as to the
state of the law, its conduct was not later reformed once there
was ample evidence of a change in PERB policy. The
University's academic and labor relations staff consciously
accepted the remedial risks entailed in the course of action it
chose to pursue. At this late date, lecturers affected by the
policy switch, whose representative had been promised further
opportunity for comment in 1978, should not be denied, on
equitable grounds, the full relief to which they otherwise
would be entitled.
64
Second,
since
it
has
been
concluded
that
the
eight-year
rule
change
involved
a
decision,
and
not
merely
the
effects
of
a
decision, that typically
would be
within
the
scope
of
representation,
the
reference to
the
Transmarine
remedy
is
misplaced.
That
remedy
is
usually
reserved for cases involving
a
decision basic to
management's
entrepreneurial control,
such
as
a
plant closing,
business
sale
or
redistribution
of
productive
work
(Highland
Ranch
v.
Agricultural
Labor
Relations
Bd._,
supra,
29
Cal.3d
at
862-864), with
the
related
problem,
if
a
full
remedy were
used,
of
substantial
hardship for
third
parties
working
at
another
location
or with
new
jobs
(Solano
Community
College
District
(6/30/82)
PERB
Decision
No.
219).
This
case involves
a
different situation.
Simply
stated,
the
employer
offered
no
evidence
of business
necessity for
its
decision to
establish
a new
policy
mandating
termination
after
four years of
full-time service.
The same work
continued
to
be
performed
by
others
with
less seniority, or, potentially,
by
the
same
employees
but
working
less
than
50
percent time.
Although the
total
adjusted payroll
for
employees doing
full-time lecturer
work would be
lower once four years of
additional longevity raises
were
eliminated, there
was no
showing
that overall cost-savings
was a
significant factor,
much
less that
economic concerns compelled the decision that
was made. Any
notion that the University
ha~
to act in the
fashion
and when
it
did, disregarding
a known union
interest,
65
is
undermined
by
the obvious
lack of haste in
arriving
at
an
institutional
change
that
had
its first
stirrings
in
1977 when
the
Sullivan
Committee
was
created.
It
took
more
than
two
years,
from
January
1978
until
February
1980,
for
production of
the
final
APM
policy
revision;
and,
after that,
nearly
two more
years,
from
February
1980
to
January
1982,
for
ongoing
revisions
and
clarifications
to
be
generated.
Regarding
a
third
employer
contention,
no
distinction
need
be drawn
between
lecturers
hired
before
and
after
July 1,
1980,
the
University's
proposed implementation
date.
All of the
employees
covered
by
the
changeover
were
within the
group
previously represented
by
the
AFT,
as well as
within
a
potential
bargaining
unit,
the
integrity
of
which
could
be
adversely
affected
if
only the
pre-existing
staff
were
protected against
the
rule
change.
If
otherwise,
what would
prevent
an employer
from
continuously
whittling
away
at
a
potential unit
by
repeatedly taking actions that
would
deny
future
employees
the
benefits
of
ongoing
representation?
Further, the University failed to
produce
persuasive evidence
that
the
AFT
had
notice,
before Spring 1981,
that
the
employer
was no
longer applying the eight-year rule across-the-board to
new
hires after
mid-1980.
The
best evidence demonstrating
a
clear-cut distinction
between the
two employee
types
was
not
actually in force until
the
APM
was
again revised in
late
1981. (See Charging Party
Ex. 3, App. B.)
66
In any event, if the University promptly applies the remedy
ordered in this case, and, upon AFT's request, satisfies the
employer's duty to meet and discuss in good faith a proposed
change in the eight-year rule, those employees hired after
mid-1980 might still be subject to a shorter duration of
employment. If this result comes to pass, and in light of the
1981 APM revision fully reinstating the eight-year rule for
lecturers hired prior to July 1980, it is conceivable that the
University will not retain anyone longer than it previously
intended. It is this irony, in the long run, that shows the
limited nature of the AFT's right to meet and present its
views. This irony also underscores the University's
shortsightedness, once AFT knew of the change and filed its
charge in June 1981, in failing to enter good faith talks with
a fresh slate by rescinding or holding in abeyance the new
duration policy.
The University's fourth suggestion, to restrict any remedy
to Berkeley and Santa Cruz, must also be rejected. Since the
charging party's allegations referred to unilateral changes "at
the University of California and at the Santa Cruz campus,"
using the conjunctive, the University had adequate notice that
an order could apply to a systemwide policy even if the policy
required local application to be fully carried out. And,
contrary to the claim of the employer's counsel, quoted above,
there was substantial evidence regarding implementation of the
67
policy changes at other University campuses. Testimony by
Blakely and Okada showed, without contradiction and in accord
with President Saxon's directive, that all campuses (with the
possible partial exception of Santa Cruz), had undertaken steps
to reissue the new policy and to fully implement the changeover
by July 1981. PERB precedent is also consistent with applying
the remedy to the systemwide governing level. In Lawrence
Livermore Laboratory, supra, a systemwide policy was
illuminated by evidence related to implementation at a
particular worksite. The ultimate remedy, however, applied
throughout the system.
Finally, the University has made a premature proposal to
limit reinstatement to those "who would not otherwise be
reappointed because of programmatic changes, financial
exigencies or unsatisfactory work performance." Questions
related to the appropriateness of a remedy for a specific
employee within a larger class entitled to relief are best
resolved in compliance proceedings after the order has become
final. Alum Rock Union School District (9/22/81) PERB Decision
No. Ad-115 at p. 9, citing NLRB v. Rutter-Rex Mfg. Co.
(5th Cr. 1957) 134 F.2d 594 [40 LRRM 2213]. Nevertheless, to
assist the smooth functioning of the reinstatement process, and
provide an opportunity for the University to frame its
objections in specific cases, former employees will be required
to notify respondent of a request for reinstatement within 45
68
workdays
of
the
final
order. Further, to
minimize
disruption,
if
the
University
prefers,
reinstatement
can
take
place
at
the
start
of
the
next
academic
session.
The
order should
also
include
a
requirement
that
the
University
post
a
notice incorporating
the
terms of
the
order.
The
notice
should
be
subscribed
by
an authorized
agent
of
the
Regents
of
the
University
of California indicating
that
it
will
comply
with
the
terms
thereof.
The
notice shall
not
be
reduced
in
size.
Posting
such
a
notice
will
provide
employees
with
notice
that
the
employer has
acted in
an
unlawful
manner
and
is
being
required
take the
prescribed
remedial
measures.
It
effectuates
the purposes
of
the
HEERA
that
employees
be
informed
of
the
resolution
of
the
controversy
and
will
announce
the
University's
's
readiness to
comply
with the ordered
remedy.
See
Placerville
Union School
District
(9/18/78)
PERB
Decision
No.
69. Also
see Pandol
and Sons
v.
Agricultural
Labor
Relations
Bd. (1979) 98
Cal.App.3d
580, 587;
NLRB
v.
Express Publishing
Co.
(1941) 312
U.S.
426 [8
LRRM
415].
For
similar
reasons,
and
to
assist
the
reinstatement
process,
a
copy
of
the
notice
should
be
mailed
to lecturers
no
longer
employed
in that capacity
by
the
University,
but
who
were
so
employed on February 22, 1980. These former
employees
may have been
affected
by
the
University's
unlawful
action
and
would
therefore
be
entitled to
relief.
Oakland Unified School
Dist. v. Public
Employment
Relations Bd., supra,
69
120
Cal.App.
3d
at
p.
1015,
aff.
Oakland
Unified
School
District
(4/23/80)
PERB
Decision
No.
126.
Notice
to
said
employees
should
be
sent to
their
last
known
address
in the
absence
of present
knowledge
about
a
former employee
1 s
whereabouts.
PROPOSED
ORDER
Upon
the foregoing
findings of
fact
and
conclusions
of
law,
and
the
entire
record in the
case,
and
pursuant
to
section
3563.3
of the
HEERA,
it
is
hereby
ordered
that
the
Regents
of the University of California
and
its
representatives
shall:
1.
CEASE
AND
DESIST
FROM:
(a)
Interfering
with the
right
of
employees
to
representation
by
arriving
at
a
determination of policy or
course of
action
reducing the
maximum
duration
of
employment
for
lecturers
teaching
more
than
50
percent
time
without
first
giving notice to interested
employee
organizations
and,
upon
request, discussing that subject
pending the
selection of
an
exclusive representative
for the
employees
affected;
(b) Denying employee
organizations
a
reasonable
opportunity to represent
employees by
arriving at
a
determination of policy or course of action reducing the
maximum
duration of
employment
for
lecturers
teaching
more
than
50
percent time without
first
giving notice to interested
employee
organizations and, upon
request; discussing that
70
subject
pending
the
selection
of
an
exclusive
representative
for the
employees
affected.
2.
TAKE
THE
FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE
POLICIES
OF THE HIGHER
EDUCATION
EMPLOYER-EMPLOYEE
RELATIONS ACT:
(a)
Reinstate
the
policy
of allowing
a maximum
duration
of
eight
years
employment
for
lecturers
teaching
more
than
50
percent time,
to
be
applied
retroactively
to
those
so
employed on
and
after
February
22, 1980;
(b) Upon
request,
reinstate
those
lecturers
teaching
more
than
50
percent
time as
of February
22, 1980,
who
are
no
longer so
employed and whose
lecturer
employment
thereafter
would
not
have been
terminated but for
application
of
a new
policy limiting
employment
of
lecturers
teaching
more
than
50
percent
time
to
a maximum
duration of
four
years.
Reinstatement
shall
be made
at
the beginning of the next
academic
quarter,
semester or
special session,
as
appropriate,
unless the
employer
is
prepared
to offer reinstatement
prior to
the succeeding
academic
period.
Requests for reinstatement
must be made
to
an
employee's previous appointing
authority
within
45
workdays
of the
final
order of
this
proceeding,
provided adequate
notice of the order
has been
transmitted to
said
employees
at their last
known
address
if
their present
whereabouts are
unknown.
(c) Make
reinstated lecturers
whole by
paying them
for any
loss of pay and
other benefit(s) resulting
from
71
termination pursuant to a new policy limiting lecturer
employment at more than 50 percent time to a maximum duration
of four years. The total amount of this award shall be offset
by the amount of earnings received as a result of other
employment during this period. The employer's make whole
obligation shall cease upon occurrence of the earliest of the
following conditions: (1) the date on which termination would
have been permissible in the normal course of University
business; or, (2) the effective date of an actual reinstatement
offer that is not thereafter accepted; or, (3) 45 workdays
after the order has become final and no request for
reinstatement has been received, provided adequate notice of
the final order has been given; or, (4) satisfaction of the
employer's duty to meet and discuss, upon request, a proposed
policy affecting the maximum duration of lecturer employment.
(d) Pay 7 percent interest per annum on the net
amount of back-pay owed pursuant to the make whole provision of
this order.
(e) Upon request of the University Council of the
American Federation of Teachers, meet and discuss any proposed
change in the maximum duration of employment for lecturers
teaching more than 50 percent time, providing said organization
a reasonable opportunity to present its views prior to the
employer arriving at a determination of policy or course of
action.
72
(f) Within
five
(5)
workdays
after this
decision
becomes
final,
prepare
and
post
copies of the
NOTICE
TO
EMPLOYEES
attached
as
an
appendix
hereto,
for
at least
thirty
(30)
workdays
at
its
headquarters
offices
and
in
conspicuous
places
at
locations
throughout
the
University
system
where
notices
to
employees
serving
as
lecturers
are customarily
posted.
It
must
not
be
reduced
in
size
and
reasonable
steps
should
be
taken
to
see
that
it
is
not
defaced,
altered
or
covered
by
any
material.
(g)
Within
fifteen
(15)
workdays
after this
decision
becomes
final,
prepare
and
mail
a
copy
of the
NOTICE
TO
EMPLOYEES
to lecturers
no
longer
employed
in
that capacity
by
the
University,
but
who
were
so
employed on
February
22,
1980.
Notice
to said
employees
should
be
sent to
their
last
known
address in the absence
of present
knowledge
about
a
former
employee's whereabouts.
(h)
Within twenty
(20)
workdays from
service of the
final
decision herein,
give
written notification
to
the
San
Francisco Regional
Director of the Public
Employment
Relations
Board
of the
actions
taken
to
comply
with
this
order.
Continue
to report in writing to the regional director
thereafter
as
directed. All reports to the regional director
shall
be
concurrently served
on
the charging party herein.
Pursuant to California Administrative
Code,
title
8,
part III, section
32305,
this
Proposed Decision and Order
shall
73
become final on December 22, 1982, unless a party files a
timely statement of exceptions. In accordance with the rules,
the statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board at its headquarters office in
Sacramento before the close of business (5:00 p.m.) on
December 22, 1982, or sent by telegraph or certified United
States mail, postmarked not later than the last day for filing
in order to be timely filed. See California Administrative
Code, title 8, part III, section 32135. Any statement of
exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. Proof of
service shall be filed with the Board itself. See California
Administrative Code, title 8, part III, sections 32300 and
32305 as amended.
Dated: December 2, 1982 --~ ~rdBARRY WINOGRAD
Administrative Law Judge
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