Regents of the University of California (Statewide University Police Association) (PERB 0381H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
LEROY PEREIRA, 	et al.,
Petitioners/Appellants,
and
STATEWIDE UNIVERSITY 	POLICE
ASSOCIATION,
Employee 	Organization.
Case No. 	SF-D-109-H
PERB Decision No. 	381-H
April 17, 	1984
Appearances; 	Christopher D. 	Burdick, 	Attorney 	(Carroll,
Burdick 	& McDonough) 	for LeRoy Pereira, 	et al.
Before Tovar, 	Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	the 	appeal 	filed by
LeRoy Pereira, 	et al., 	(Appellants), 	a group of individual
employees 	of 	the 	Regents 	of 	the 	University of California 	(UC or
University) 	in the peace officer unit, 	of a regional director's
stay of a decertification election 	in Case No. 	SF-D-109-H. 	UC
takes no position on 	the merits of 	the 	appeal. 	For 	the 	reasons
discussed below, 	the appeal 	is denied.
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FACTS
Appellants 	filed 	a 	timely decertification petition on
May 20, 	1983, 	seeking to decertify the 	Statewide University
Police Association 	(SUPA), 	the exclusive representative 	in the
peace officer unit at UC. 	On June 8, 	1983, 	SUPA requested that
action on 	the 	petition be 	stayed pending 	resolution of
outstanding 	unfair practice charges against UC. 	On June 	17,
1983, 	Appellants 	expressed 	their opposition to a stay. 	They
contended 	that 	their 	dissatisfaction 	with 	SUPA did 	not 	result
from any potential 	or 	actual 	effects 	of 	the 	conduct alleged 	in
SUPA's 	unfair 	practice charges 	against 	UC 	in Case 	No.
SF-CE-144-H. 	Those 	charges 	alleged 	that UC discriminated
against 	peace 	officer 	employees 	by 	failing 	to afford 	them
benefit 	increases 	granted other, 	nonrepresented 	employees,
unilaterally changed working 	conditions within 	scope, 	and
generally 	engaged 	in 	bad-faith 	surface 	bargaining.1
Appellants allege that 	such conduct, 	if 	it occurred, 	did
not 	affect 	their 	dissatisfaction with 	SUPA. 	They 	contend 	that
they are 	generally opposed 	to collective 	negotiations 	as 	a
1The 	charges 	allegedly blocking 	the 	instant 	petition 	are
described 	in 	greater detail 	in 	the 	regional director's 	letter
staying 	proceedings 	on 	the 	decertification petition 	dated
September 	23, 	1983, 	attached hereto and 	incorporated by
reference herein. 	The Administrative Law Judge 	(ALJ)
subsequently 	issued 	a decision 	in 	SF-CE-144-H 	(Regents 	of 	the
University of California 	(SUPA), HO-U-214-H), 	dismissing many
of 	the charges but 	finding 	some violations. 	Neither party
excepted 	to the ALJ's 	findings and 	the decision became 	final on
March 13, 	1984.
22

vehicle 	for dealing with UC. 	Further, 	they contend 	that, 	apart
from general opposition 	to collective bargaining, 	they were
motivated 	to decertify 	SUPA by 	SUPA's 	alleged 	failure 	to
represent 	officers 	on their 	particular 	campuses. 	They allege
that 	SUPA has 	failed 	to hold meetings, 	elect or provide 	a 	shop
steward, 	circulate a 	newsletter 	or 	otherwise 	contact 	or 	inform
police 	officers on 	the UC Berkeley campus, 	who allegedly 	formed
the 	core of those 	signing 	the petition. 	It 	is 	this 	lack 	of
contact 	or 	representation, 	and not 	a 	lack of 	satisfaction with
SUPA's 	general 	effectiveness 	as 	collective bargaining
representative, 	which Appellants allege 	to have 	motivated 	the
filing 	of 	the 	decertification petition.
DISCUSSION
In Jefferson 	School 	District 	(6/29/79) 	PERB Order
No. 	Ad-66, 	at pp. 	5-6, 	PERB adopted 	its 	standard regarding
blocking charges, 	finding 	it 	appropriate to stay a
decertification 	election:
. 	. 	. 	in circumstances in which the
employees' 	dissatisfaction with the
representative 	is 	in all 	likelihood
attributable 	to 	the 	employer's 	unfair
practice 	rather 	than 	the 	exclusive
representative's 	failure 	to 	respond 	to 	and
serve 	the needs of 	the employees 	it
represents.
Accordingly, 	the 	Board 	there 	instructed 	the 	regional
director 	to:
. 	. 	. 	conduct an investigation to determine
whether 	a danger 	remains 	that 	the District's
alleged unlawful conduct will 	so affect 	the
33

election process 	as 	to prevent 	the 	employees
from 	freely 	selecting 	their 	exclusive
representative. 	(P. 	7.)
The 	Board went 	on to note 	that 	it will 	not 	invoke the
blocking 	charge 	rule 	mechanically.
Subsequently, 	PERB codified 	its practice 	in PERB rule
327522 	following 	the 	practice 	of 	the 	National Labor 	Relations
Board 	in 	the private 	sector:
The 	Board 	may 	stay 	an election pending 	the
resolution 	of 	an unfair practice 	charge
relating 	to 	the 	voting 	unit 	upon an
investigation 	and 	a 	finding 	that 	alleged
unlawful 	conduct would 	so 	affect 	the
election process 	as 	to prevent 	the 	employees
from exercising free choice. 	. 	. 	.
The 	regional 	director here 	conducted 	an 	investigation 	as
contemplated by 	the 	regulation, 	including 	an opportunity 	for
all parties 	to present 	their position 	regarding 	the blocking
charge 	issue.3 she analyzed 	various 	recent 	charges 	filed
against 	the University and 	their disposition, 	as well as 	the
then-outstanding 	complaint 	in 	SF-CE-144.
That 	case 	involved 	charges 	that 	the 	University denied 	to
employees 	represented by 	SUPA certain benefits 	given 	to 	other
unrepresented employees, 	such as a 	life 	insurance 	"premium
holiday", 	increased University contributions 	to employee health
2PERB 	rules 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et 	seq.
3The 	University 	took 	no position 	in 	these 	proceedings,
believing 	the 	matter 	properly 	resolved between 	PERB 	and 	the
other parties.
4

insurance and 	retirement, 	increased per diem rates, 	and an
increased 	lunch and 	entertainment 	allowance, 	and 	that 	the
University refused 	to bargain 	about 	the 	retroactive 	extension
of 	these benefits 	to members 	of 	the 	SUPA unit. 	SUPA also
charged 	that 	the University made unlawful 	changes 	in working
conditions, 	including discontinuing 	the 	"Medmobile",
implementing 	light duty assignments, 	and 	making additional
payroll 	deductions 	from the paychecks 	of 	SUPA unit 	members.
The 	charges 	further 	alleged 	that 	the 	University engaged 	in
bad-faith bargaining by 	failing 	to meet 	and 	confer 	about
matters within scope, 	making regressive proposals, 	engaging 	in
unlawful post-impasse procedures, 	and 	refusing 	to give 	its
negotiator 	sufficient 	authority 	to 	conduct 	meaningful
negotiations.
The 	regional director 	noted 	that 	this 	Board has 	found 	that
conduct 	such as 	that 	alleged has 	a destabilizing 	effect 	on
collective bargaining 	generally and 	derogates 	the
representative 	in the eyes of 	the employees, 	citing San Mateo
County Community College 	District 	(6/8/79) 	PERB Decision
No. 	94. 	She 	therefore 	found that employees could well have
been 	induced 	to withdraw 	their 	support 	for 	SUPA by 	the
University's alleged actions. 	For 	that 	reason, 	she 	found 	that
the 	University's 	conduct 	could prevent 	employees 	from
exercising 	free choice, 	thus 	affecting 	the decertification
election.
55

The 	regional director 	did 	not purport 	to prejudge 	the
merits of the charge 	in Case No. 	SF-CE-144. 	Rather, 	she
correctly analyzed 	whether 	such 	conduct 	is 	of 	such character
and seriousness 	that, 	if 	it were proven to have occurred, 	it
would be 	reasonable 	to 	infer 	that 	it would 	contribute 	to
employee 	dissatisfaction 	and hence 	prevent 	a 	fair 	election.
The Appellants here contend 	that, 	in 	filing 	the
decertification petition, 	they were 	not 	motivated by SUPA's
failure 	to 	reach 	agreement 	with UC, 	but 	rather 	were 	opposed 	to
collective bargaining generally. 	They 	further 	allege
dissatisfaction 	with 	communications 	received or 	not 	received
from 	SUPA.
Initially we note 	that Appellants' 	position 	is 	undercut by
its 	own circular 	distributed 	to unit 	employees 	complaining
about 	SUPA's 	inability to reach agreement 	with UC.
Moreover, 	we 	find 	that 	the 	motivation of 	the 	individual
petitioners 	in 	seeking 	a decertification 	election 	is 	not
determinative. 	As noted 	in PERB rule 	32752 above, 	the regional
director 	is 	directed 	to 	investigate 	whether 	the 	alleged
unlawful 	conduct 	"would 	so affect 	the election process 	as 	to
prevent 	the 	employees 	from exercising 	free 	choice." 	Her
inquiry here 	was 	therefore 	properly 	limited 	to 	the potential
impact 	of the 	alleged 	conduct 	on all 	of the 	employees 	in 	the
unit, 	rather 	than 	the 	actual 	motivation of 	those 	filing 	the
petition 	for 	decertification.
66

The 	Board will defer 	to 	an 	agent's 	determination 	that 	an
election 	should be blocked pursuant 	to 	PERB rule 	32752 when
that 	order 	is 	the 	result 	of a 	sufficient 	investigation and
analysis 	of the 	allegations of 	the 	complaint and 	its potential
impact on 	the 	employees 	in 	the unit, 	and 	the regional
director's 	conclusions 	are 	amply 	supported by 	the 	record.
Pleasant Valley Elementary 	School 	District 	(2/28/84) 	PERB
Decision No. 	380. 	Here we 	find both adequate 	investigation and
a 	result 	with 	ample 	support 	in 	the 	record, 	and we 	therefore
affirm the order of the 	regional director. 	We note, 	however,
that 	since 	the ALJ's 	decision 	in 	SF-CE-144 has 	now become
final, 	re-investigation by the 	regional director 	will be
appropriate 	when 	compliance 	with 	that 	decision has been
achieved.
ORDER
Based on 	the 	foregoing, 	and on 	the 	record as 	a whole, 	the
Public 	Employment 	Relations 	Board hereby DENIES 	the 	appeal 	of
the 	regional director's 	order 	staying 	the decertification
election in Case No. 	SF-D-109-H, 	and AFFIRMS that order.
Members 	Tovar 	and Morgenstern 	joined 	in 	this 	Decision.
77

STATE OF .CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS BOARD
Francisco Regional Office
177 Post Street. 9th Floor
San Francisco, California 94108
(415)557-1350
September 23, 1983
K. 	William Curtis
Attorney at Law
1912 I Street, Suite 102
Sacramento", 	CA 	95814
Christopher D. Burdick
Carroll, Burdick & McDonough
One Ecker Building, 	Suite 	400
Ecker 	& Stevenson 	Streets
San Francisco, CA 	94105
Gerald Becker
Office of 	the General Counsel
590 University Hall
2200 	University Avenue
Berkeley, 	CA 	94720
Re: 	Case No. SF-D-109-H
Regents of the University of California
Dear 	Interested Parties:
On June 9, 	1983, 	the Statewide University Police Association
(SUPA) 	requested 	that the Public Employment Relations Board
(PERB or Board) 	stay 	further processing of the decertification
petition filed on May 20, 	1983, pending 	the resolution of
multiple unfair practice charges 	involving the Regents of the
University of California 	(University or employer) . 	Because of
the following 	reasons, 	the request to block the decertification
election 	is granted.
Background
On August 19, 	1980, 	SUPA was certified as 	the exclusive
representative of University employees 	classified 	as 	peace
officers.1 No collective 	bargaining 	agreement 	has 	been
1Until 	this 	summer, 	when other 	exclusive representatives
for 	various University 	units were certified, 	only 	two exclusive
representatives 	— 	SUPA 	and 	the 	Faculty 	Association 	at 	Santa
Cruz 	— 	existed 	within 	the 	University 	system.
-----

September 	23, 	1983
page 2
reached 	between the parties.
In the past 	two years, 	SUPA has 	filed 	six separate 	unfair
practice charges against 	the University. 	Three of 	those
charges are currently outstanding 	(Case No. LA-CE—47-H, Case
No. S-CE-6-H, and Case No. SF-CE-144-H, discussed 	infra). 	Of
the remainder, 	one charge has become final resulting 	in a
finding of unlawful conduct 	(Case Wo. 	LA-CE-53-H, 	(HO-U-177H)
discussed 	infra); 	another has become final with the charges
dismissed 	(Case No. SF-CE-130-H 	(HO-U-187-H); 	and 	a refusal to
issue complaint 	resulted 	in the dismissal of 	the 	last charge
(Case No. SF-C0-3-H) . 	The latter two charges have no bearing
on the 	instant determination.
Discussion
The Board 	may stay a decertification 	election 	"upon 	an
investigation, and 	a finding that alleged unlawful 	conduct would
so affect 	the election process as 	to prevent the 	employees from
exercising free choice." 	(Board Rule 32752.)2 A. stay is
appropriate
. . . 	in circumstances 	in which the
employees' dissatisfaction with their
representative is 	in all likelihood
attributable 	to the employer's unfair
practices rather 	than to the 	exclusive
representative's 	failure 	to respond 	to and
serve the needs of the employees 	it
represents. 	Jefferson School District
(6/29/79) PERB Decision No. Ad-6& at pp. 	5-6.
Resolving blocking charges 	requires 	an 	investigation of •"each
case on its own. facts" 	to determine whether the stay would
further the purposes of the Act. 	Jefferso
-----------n School District
(3/7/80) 	PERB Decision No. Ad-82, 	reconsideration denied
(7/17/80) 	PERB Order No. 	82-A. 	As the Fifth Circui	-------	t Court
stated in Bishop v. NLRB:
2PERB 	Regulations 	are 	codified 	at California
Administrative Code, Title 8.

September 23, 1983
page 3
If the employer has 	. 	. 	. committed
unfair 	labor practices 	and 	has 	thereby
succeeded 	in undermining 	union
sentiment, 	it would surely controvert
the 	spirit of the Act 	to allow 	the
employer 	to profit by his own
wrongdoing. 	Bishop v. 	NLRB 	(5th Cir.
1974) 	502 F.2d 	1024 	[87 LRRM 2524 at
2527].3
In 	the 	instant case, 	a number 	of 	factors 	arising 	from pending
charges suggest 	that 	the employees' apparent dissatisfaction
may be attributable to employer 	unfair practices 	and 	make a
fair election 	impossible 	at this 	time.
A. 	Case No. 	LA-CE-53-H 	(HO-U-177-H)
Statewide University. Police Association v. 	Regents of 	the
University of California, 	PERB Decision No. HO-U-177-H, became
final on April 25, 	1983. 	In that decision, 	the ALJ found that
a statement made 	by a University police chief 	in 	1981
constituted 	an 	unlawful 	threat of 	reprisals 	against
rank-and-file members of 	the UCLA Police Department, 	thereby
violating Government Code section 3571(a).4 The University
was ordered 	to cease and desist from 	this 	unlawful 	activity and
to post a notice 	to 	the employees acknowledging 	the 	violation
and 	the University's compliance with 	the order. 	In 	light of
the passage of time and PERB's resolution of 	the 	controversy,
this charge would 	not appear 	to be a critical factor 	in this
determination.
B. 	Case No. 	LA-CE-47-H and Case No. 	S-CE-6-H
These unfair 	practice 	charges 	filed 	by SUPA alleged 	that 	the
University had 	unilaterally 	increased 	parking 	fee 	rates 	in
violation of 	the Higher Education Employer-Employee 	Relations
3NLRB 	and 	federal court precedent are 	relevant 	guides for
interpreting 	California 	labor 	legislation 	when 	the 	statutory
provisions 	are 	similar 	or 	identical. 	Firefighters 	Union v.
City of Vallejo, 12 Cal. 	3d 608 	(1974).
4A11 	references 	are 	to 	the Government Code unless
otherwise 	indicated.

September 	23, 	1983
Page 	4
Act 	(HEERA).5 Complaints 	issued 	on 	these 	allegations 	on
January 15, 	1982, 	reflecting 	a determination 	that 	the 	facts
alleged 	a prima 	facie 	case. 	These 	cases 	were 	consolidated for
hearing 	and 	the ALJ 	formally determined 	that 	the 	University
made unlawful 	unilateral 	increases 	in parking 	fees, 	thereby
violating Government Code sections 3571(a), 	(b), and 	(c). 	The
University has 	filed 	exceptions 	and 	the case 	is 	currently on
review before 	the Board. 	The ALJ's 	proposed 	order 	required,
inter 	alia, 	the 	University 	to 	rescind 	the 	parking 	fee 	increase
and 	return 	the 	increased 	portion 	of 	the 	fee, 	including 	interest
from July 1, 	1981, 	to 	the 	bargaining 	unit 	employees. 	Due to
the 	appeal, 	the 	University has 	not 	complied 	with 	the 	proposed
Order.
C. . Case No. SF-CE-144-H
SF-CE-144-H, 	the most 	critical of 	the 	unfair 	practice 	charges
filed 	against 	the University, 	involves 	allegations 	that 	the
University has violated Government Code sections 3571 (a) , 	(b),
and 	(c). 	(The specific allegations 	in 	the charge 	are described
infra.) 	On February 	22, 	1983, 	the General Counsel determined
that 	the 	allegations 	constituted 	a 	prima 	facie 	case 	and 	a
complaint 	was 	issued. 	An 	evidentiary 	hearing 	has 	been 	held on
all 	issues 	and 	the ALJ's 	proposed 	decision 	is 	pending.
In 	the 	charge, 	SUPA 	maintains 	that 	the University 	illegally
discriminated 	against 	SUPA-represented 	employees 	by 	refusing 	to
extend 	to 	them 	the 	same 	benefits 	given 	unrepresented
employees. 	These monetary benefits 	include 	a 	life 	insurance
premium 	"holiday", 	increased 	University contributions 	to
employee 	health 	insurance 	and 	retirement, 	increased 	per diem
rates 	and 	an 	increased 	lunch 	and 	entertainment 	allowance.
Furthermore, 	the 	University 	allegedly 	refused 	to 	bargain
regarding 	the 	retroactive 	extension 	of 	the 	above 	benefits 	to
employees 	in 	SUPA's 	bargaining 	unit. 	The 	University 	also
allegedly made 	several 	other 	changes 	in 	working 	conditions,
including 	discontinuing 	the 	"Medmobile", 	implementing 	light
duty assignments, 	and 	taking 	additional payroll deductions from
the 	paychecks 	of 	SUPA 	bargaining 	unit 	employees. 	SUPA 	also
asserts 	that 	the 	University engaged 	in 	bad 	faith 	bargaining by
failing 	to meet 	and 	confer 	about 	matters 	within 	the 	scope 	of
representation, 	by making 	regressive proposals, 	by 	engaging 	in
unlawful post-impasse procedures, 	and 	by 	refusing 	to 	give 	its
negotiator 	sufficient 	authority 	to 	conduct 	meaningful
negotiations.
5The 	Higher 	Education 	Employer-Employee 	Relations 	Act 	is
codified 	at 	Government 	Code 	section 	3560 	et 	seq.

•September 23, 1983
Page 5
While 	the critical unfair 	practice 	charges 	have not 	yet been
resolved, 	SUPA has made a colorable claim 	that 	the University's
conduct 	is 	both violative 	of HEERA and 	likely 	to have
contributed 	to employee dissatisfaction. 	Jefferson 	School
District, 	supra. 	Bargaining unit employees were 	forced 	to pay
increased 	parking 	fees while being 	denied 	benefits 	bestowed on
non-unit employees covering 	a wide 	range 	of negotiable
matters. 	The Board 	has held 	that 	such conduct, 	when proven,
not 	only has 	a destabilizing 	and 	disorienting 	impact 	on
collective bargaining 	affairs generally, 	but also 	"derogates
the 	representative's negotiating 	power 	and 	ability 	to 	perform
as an effective representative 	in 	the eyes of 	the employees,"
and 	"unfairly 	shifts community and 	political pressure 	to
employees and 	their organizations 	... 	." 	San Mateo Community
College District 	(6/8/79) 	PERB Decision No. 	94. 	Such conduct
may well also create 	in the minds of employees 	the 	belief 	that
the collective 	bargaining 	system does 	not work.
For 	these reasons, 	employees could well have been 	induced 	to
withdraw their 	support 	for 	SUPA as 	a 	result of 	the 	University's
actions. 	Indeed, 	the alleged bargaining conduct of 	the
University apart 	from 	the 	unilateral changes described 	above
may well have exacerbated 	unit members' 	losses, 	and 	thus may
have 	been a 	further 	cause of diminution 	in SUPA's 	support
within the unit. 	From the foregoing, 	it may be inferred 	that
the University's 	conduct may prevent 	employees 	from 	exercising
free choice without 	restraint or 	coercion 	in a decertification
election. 	(Board Rule 32752, Jefferson School District, 	supra,
and Bishop v. NLRB, 	supra.) 	Accordingly, 	while not purporting
to resolve the ultimate merits of the charges, 	the 	undersigned
directs 	that 	the decertification election 	be stayed 	pending the
resolution of 	the 	outstanding 	charges discussed 	above.
An appeal 	to 	this decision pursuant 	to PERB Regulations 	32350
through 	32380 may be made 	within 	10 	calendar days 	following the
date of 	service of 	this decision by filing 	a statement of the
facts upon which 	the 	appeal 	is 	based 	with 	the Board 	itself at
1031 18th Street, Suite 200, Sacramento, California 95814.
Copies of 	any appeal must 	be concurrently 	served 	upon 	all other
parties 	and 	the San Francisco Regional Office. 	Proof 	of

September 	23, 	1983
page 6
service pursuant 	to Regulation 	32140 	is 	required
Very 	truly yours,
Anita I. 	Martinez
Regional Director
AIM:ir
cc: 	Leroy Pereira
.