Regents of the University of California (PERB 0640H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL, AMERICAN
FEDERATION OF TEACHERS, AFL-CIO,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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Case No. SF-CE-200-H
PERB Decision No. 640-H
December 10, 1987
Appearances: Thomas L. Dublin for University Council, American
Federation of Teachers, AFL-CIO; Edward M. Opton, Jr., Esq. for
the Regents of the University of California.
Before Craib, Shank and Cordoba, Members.
DECISION
CRAIB, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by both
parties, The Regents of the University of California
(University) and University Council, American Federation of
Teachers, AFL-CIO (UCAFT), to the attached proposed decision of
a PERB administrative law judge (ALJ). While dismissing all
other allegations, the ALJ found that the University violated
section 357l(a), (b) and (c) of the Higher Education Employer
Employee 1	
Relations Act (HEERA) by unlawfully refusing to
lHEERA is codified at Government Code section 3560 et
seq. Unless otherwise indicated, all statutory references
herein are to the Government Code.

bargain 	various 	negotiable 	aspects 	of 	a 	reorganization 	plan
involving 	the 	Communications 	Studies 	Program 	(CS 	Program) 	and
the 	Speech 	Department 	at 	University 	of 	California, 	Los 	Angeles
(UCLA). 	We 	have 	reviewed 	the 	entire 	record, 	including 	the
proposed 	decision 	and 	the 	parties' 	exceptions 	thereto, 	and,
except 	as 	noted 	below, 	we 	affirm 	the 	proposed 	decision 	and
adopt 	it 	as 	the 	decision 	of 	the 	Board 	itself.
The 	allegations 	contained 	in 	the 	complaint 	may 	be
summarized 	as 	follows: 2
1. 	Various 	administrators 	conspired 	to 	create 	a 	plan
to 	unilaterally 	disestablish 	the 	Speech 	Department 	and
reorganize 	the 	CS 	Program 	(jeopardizing 	the 	employment 	of
lecturers 	in 	both 	academic 	units) 	in 	retaliation 	for 	the
lecturers' 	protected 	activity 	in, 	inter 	alia, 	organizing 	the
UCAFT, 	winning 	the 	election, 	and 	bargaining.
2. 	Various 	University 	administrators 	(and 	their
supporters 	upon 	instruction) 	ostracized 	UCAFT 	chief 	negotiator
Marde 	Gregory 	or, 	as 	she 	phrased 	it, 	"sent 	her 	to 	Coventry."
3. 	Favorable 	references 	to 	Gregory 	in 	a 	Committee 	on
Undergraduate 	Courses 	and 	Curricula 	draft 	report 	were 	deleted
prior 	to 	final 	publication.
4. 	Gregory's 	title 	was 	changed 	from 	Visiting 	Lecturer
2Additional 	allegations 	specifically 	involving 	two
members 	of 	the 	UCAFT's 	negotiating 	team 	were 	withdrawn.
2

to 	Adjunct 	Lecturer, 	temporarily 	removing 	her 	from 	the 	unit 	she
represented 	in 	negotiations.
5. 	The 	University's 	behavior 	regarding 	release 	time
constituted 	interference 	with 	the 	negotiating 	team's 	right 	to
release 	time 	and 	burdened 	the 	UCAFT's 	ability 	to 	conduct
bargaining.
6. 	The 	reappointment 	of 	the 	speech 	lecturers 	for 	the
1985-86 	year 	was 	delayed, 	causing 	the 	August 	1985 	paychecks 	to
be 	late.
7. 	The 	University, 	at 	various 	times, 	refused 	to
bargain 	release 	time.
8. 	The 	University 	refused 	to bargain 	over 	negotiable
aspects 	of 	the 	reorganization 	plan, 	sometimes 	called 	the 	"Sears
11	Plan. 	3
As 	noted 	above, 	it 	was 	only 	the 	last 	allegation 	that 	the
ALJ 	found 	to be 	meritorious. 	Specifically, 	the 	ALJ 	concluded
that 	the 	University 	unlawfully 	failed 	to bargain 	the 	decision
to 	transfer 	the 	speech 	lecturers 	to 	the 	Writing 	Program, 	the
effects 	of 	a 	contemplated 	de 	facto 	disestablishment 	of 	the
Speech 	Department, 	and 	the 	effects 	of 	placing 	greater 	reliance
on 	Senate 	faculty 	(and, 	therefore, 	less 	reliance 	on 	lecturers).
3The 	name 	"Sears 	Plan" 	is 	a 	misnomer 	in 	that 	it 	implies
there 	was 	one 	comprehensive 	reorganization 	plan 	devised 	solely
by 	Social 	Sciences 	Dean 	David 	Sears.
3

FACTUAL 	SUMMARY
A 	thorough 	and 	detailed 	factual 	summary 	is 	contained 	in 	the
attached 	proposed 	decision 	and 	we 	will 	not 	here 	recount 	the
rather 	voluminous 	set 	of 	facts 	underlying 	this 	dispute.
However, 	we 	will 	provide 	a 	very brief 	factual 	outline 	in 	order
to 	facilitate 	comprehension 	of 	this 	decision.
Prior 	to 	1970-71, 	the 	Speech 	Department 	at 	UCLA 	included
undergraduate 	(B.A.) 	and 	graduate 	(M.A. 	and 	Ph.D.) 	programs.
In 	about 	1970-71, 	all 	the 	degree 	programs 	in 	speech 	were
eliminated 	by 	the 	Academic 	Senate. 	Eventually, 	most 	of 	the
Speech 	Department's 	course 	offerings 	were 	phased 	out, 	but 	the
Speech 	I 	and 	Speech 	II 	courses 	were 	preserved.
In 	the 	wake 	of 	the 	termination 	of 	the 	speech 	degrees, 	an
inter-college 	committee 	was 	created 	to 	find 	alternative 	forms
of 	curriculum 	for 	students 	with 	an 	interest 	in 	communication.
As 	a 	result, 	there 	was 	created 	an 	interdepartmental 	degree
program 	called 	Communication 	Studies 	staffed by 	faculty 	in 	the
Speech 	Department, 	as 	well 	as 	faculty 	in 	other 	departments.
The 	CS 	Program 	was 	housed 	in 	the 	Speech 	Department 	and 	the
department's 	budget 	was 	used 	to 	administer, 	house 	and 	employ
the 	speech 	faculty 	and 	the 	faculty 	assigned 	to 	the 	CS 	Program.
Speech 	thus 	became 	a 	department 	without 	a 	degree 	program but
with 	a 	budget, 	and 	Communication 	Studies 	was 	a 	program 	without
a 	budget 	of 	its 	own 	but 	with 	an 	undergraduate 	degree 	program.
University 	witnesses
/
testified 	that 	the 	total 	elimination 	of
4

the 	Speech 	Department 	has 	always 	been 	viewed 	as 	inevitable,
especially 	if 	the 	CS 	Program 	developed 	toward 	departmental
status.
Since 	the 	reductions 	in 	course 	offerings 	in 	the 	Speech
Department, 	the 	teaching 	of 	the 	Speech 	I 	and 	II 	courses 	has
been 	done 	primarily by 	lecturers 	(and 	in 	the 	last 	few 	years
before 	the 	hearing, 	exclusively by 	lecturers). 	The 	CS 	Program
also 	relies 	heavily 	on 	lecturers. 	Lecturers 	are 	faculty
members 	who 	are 	not 	members 	of 	the 	Academic 	Senate 	and 	are
normally 	hired 	on 	a 	year-to-year 	basis 	(though 	in 	some
circumstances 	they 	could be 	granted 	some 	job 	security 	under
University 	policies 	as 	they 	then 	existed). 	They 	usually 	are
not 	expected 	or 	required 	to 	engage 	in 	research, 	and 	for 	that
reason 	they 	are 	typically 	assigned 	greater 	teaching 	duties 	than
"regular" 	faculty. 	Also 	typical 	is 	the 	employment 	of 	lecturers
at 	less 	than 	full 	time. 	UCLA, 	like 	the 	rest 	of 	the 	University
system, 	limits 	the 	number 	of 	years 	a 	lecturer 	may be 	employed.
At 	UCLA, 	the 	limit 	was 	generally 	eight 	years, 	though 	some
departments 	or 	programs 	had 	shorter 	limits.
After 	an 	election 	in 	late 	1983, 	the 	UCAFT 	was 	certified 	on
March 	6, 	1984 	as 	the 	exclusive 	representative 	of 	Unit 	18,
consisting 	of 	various 	classifications 	that 	can be 	termed
generally 	as 	non-(Academic) 	Senate 	faculty: 	'While 	the 	evidence
indicates 	that 	the 	University 	conducted 	an 	active 	campaign 	in
favor 	of 	"no 	representation," 	it 	was 	not 	particularly 	extensive
5

or 	vociferous. 	In 	fact, 	the 	testimony 	of 	administrators
reflected 	that 	the 	results 	of 	the 	election 	were 	not
unexpected. 	Job 	security 	for 	non-Senate 	faculty 	was 	a 	major
issue 	around 	which 	the 	UCAFT 	organized.
The 	CS 	Program 	has 	frequently 	come 	under 	scrutiny 	through
both 	internal 	and 	external 	formal 	reviews. 	The 	program 	has 	not
always 	enjoyed 	the 	enthusiastic 	support 	of 	key 	administrators.
Periodic 	real 	or 	perceived 	threats 	to 	the 	future 	of 	the 	CS
Program 	have 	been 	met 	with 	firm 	resistance, 	especially 	from
Professor 	Paul 	Rosenthal, 	long-time 	chair 	of 	both 	the 	Speech
Department 	and 	the 	CS 	Program. 	Rosenthal's 	extensive 	knowledge
of 	the 	technical 	rules 	of 	the 	University 	bureaucracy,
especially 	those 	relating 	to 	the 	principle 	of 	shared 	governance
between 	the 	administration 	and 	the 	Academic 	Senate; 	has 	aided
him 	in 	fending 	off 	various 	actions 	over 	the 	years 	that 	he
viewed 	as 	a 	threat 	to 	the 	program.
The 	first 	action 	specifically 	at 	issue 	in 	this 	case 	was 	the
attempted 	removal 	of 	the 	three 	speech 	FTEs 	(full-time
equivalents) 	used 	for 	lecturers 	teaching 	Speech 	I 	and 	II 	in 	the
fall 	of 	1983. 	Due 	to 	outcry 	from 	various 	segments 	of 	the
campus, 	including 	the 	Department, 	students 	and 	alumni, 	the
removal 	did 	not 	actually 	take 	place 	and 	the 	Speech 	I 	and 	II
classes 	continued 	to be 	taught. 	The 	University 	asserts 	that
the 	removal 	of 	the 	FTEs 	was 	just 	a 	proposal 	that 	was 	never
implemented, 	while 	UCAFT 	asserts 	that 	a 	decision 	was 	in 	fact
6

made, 	but 	later 	rescinded. 	This 	conduct 	occurred 	more 	than 	six
months 	prior 	to 	the 	charge 	and 	was 	not 	included 	in 	the 	charge
or 	complaint. 	It 	was 	not 	considered by 	the 	ALJ 	as 	a 	possible
violation, 	but 	only 	as 	background 	evidence.
As 	noted 	above, 	central 	to 	the 	dispute 	herein 	is 	a
reorganization 	plan 	often 	referred 	to 	as 	the 	"Sears 	Plan." 	The
core 	of 	the 	"Sears 	Plan" 	was 	agreed 	to 	in 	about 	February 	1984,
in 	a 	meeting 	of 	several 	administrators, 	though 	it 	was 	modified
thereafter. 	The 	plan 	was 	precipitated 	in 	part 	as 	a 	response 	by
Dean 	Sears 	to 	a 	proposal 	from 	CS 	Professors 	Rosenthal, 	Neil
Malamuth 	and 	Patrice 	French 	to 	create 	a 	graduate 	program 	in
CS. 	The 	plan 	was 	formally 	announced 	in 	a 	memo 	from 	Sears 	on
September 	10, 	1984. 	As 	announced, 	the 	plan 	included 	the
following 	components:
1. 	Transfer 	of 	the 	CS 	Program 	to 	the 	Division 	of 	Social
Sciences 	from 	the 	Division 	of 	Humanities.
2. 	Transfer 	of 	Professor 	Waldo 	Phelps 	from 	the 	Speech
Department 	to 	the 	English 	Department 	(where 	he 	had 	been 	before
an 	earlier 	transfer 	to 	Speech).
3. 	Transfer 	of 	the 	Speech 	I 	and 	II 	courses 	to 	the 	Writing
Program 	(in 	the 	English 	Department).
4. 	Increased 	participation 	of 	ladder 	(Senate) 	faculty 	from
other 	departments 	with 	an 	interest 	in 	communications.
5. 	Rotation 	of 	the 	chair 	of 	the 	CS 	Program, 	beginning 	with
the 	replacement 	of 	Professor 	Rosenthal 	with 	Professor 	Neil
Malamuth.
7

Items 	number 	1, 	2 	and 	5 	had 	already 	been 	implemented 	at 	the
time 	the 	memo 	was 	issued. 	If 	all 	of 	the 	components 	had 	been
implemented, 	it 	would 	have 	constituted 	a 	de 	facto
disestablishment 	of 	the 	Speech 	Department, 	as 	its 	faculty 	and
courses, 	as 	well 	as 	the 	CS 	Program housed 	there, 	would 	have
been 	transferred. 	A related 	proposal 	not 	enumerated 	in 	the
memo 	was 	to 	transfer 	Professor 	Malamuth 	to 	the 	Psychology
Department 	and 	Professor 	Rosenthal 	to 	the 	English 	Department.
These 	transfers 	nearly 	took 	place 	but 	were 	dropped 	after
protest 	from 	Rosenthal.
The 	transfer 	of 	the 	Speech 	I 	and 	II 	courses 	to 	the 	Writing
Program, 	the 	focal 	point 	of 	the 	controversy 	with 	respect 	to 	the
lecturers, 	did 	not 	actually 	take 	place. 	However, 	the 	ALJ 	found
that 	a 	firm 	decision 	to 	effectuate 	the 	transfer 	was 	made 	and
that 	preliminary 	steps 	toward 	implementation 	were 	carried 	out.
In 	an 	allocation 	letter 	(for 	the 	1985-86 	year) 	dated 	September
25, 	1984, 	Provost 	Ray 	Orbach 	allocated 	the 	three 	speech 	FTEs
for 	temporary 	faculty 	(lecturers) 	to 	the 	Writing 	Program. 	The
allocation 	was 	later 	redirected 	back 	to 	the 	Speech 	Department,
apparently 	prior 	to 	any 	formal 	action by 	the 	Writing 	Program.
At 	the 	time 	the 	planned 	transfer 	to 	the 	Writing 	Program 	was
abandoned, 	no 	one 	made 	certain 	that 	the 	FTEs 	were 	reallocated
to 	the 	Speech 	Department. 	As 	a 	consequence, 	reappointment 	of
the 	speech 	lecturers 	was 	delayed 	about 	six 	months 	and 	the
lecturers' 	August 	paychecks 	were 	late.
8

DISCUSSION
UCAFT's 	Exceptions
UCAFT's 	primary 	exception 	is 	to 	the 	dismissal 	of 	its
allegation 	that 	the 	reorganization 	plan 	was 	devised 	in
retaliation 	for 	protected 	activity 	on 	the 	part 	of 	lecturers 	in
the 	Speech 	Department 	and 	CS 	Program. 	The 	key 	argument
underlying 	this 	exception 	is 	that 	the 	ALJ 	erred 	by 	drawing 	only
a 	limited 	adverse 	inference 	from 	the 	University's 	failure 	to
comply 	with 	an 	order 	to 	produce 	an 	audio 	tape 	of 	an 	October 	15,
1984 	meeting 	of 	the 	Executive 	Committee 	of 	the 	College 	of
Letters 	and 	Sciences. 	The 	University 	refused 	to 	comply 	with
the 	ALJ's 	order 	to 	produce 	the 	tape 	(though 	it 	did
unsuccessfully 	offer 	various 	alternative 	forms 	of 	compliance}
based 	on 	its 	assertions 	that 	such 	meetings 	are 	confidential
(because 	they 	contain 	discussion 	of 	peers 	by 	academics) 	and
that 	UCAFT 	was 	merely 	seeking 	to 	aid 	Professor 	Rosenthal 	in
obtaining 	the 	tape 	for 	use 	in 	a 	slander 	suit 	he 	had 	filed
against 	the 	University. 	UCAFT 	alleged 	in 	its 	charge 	that
Rosenthal 	and 	the 	Speech 	Department 	were 	verbally 	attacked
(presumably 	in 	a 	manner 	reflecting 	anti-union 	animus) 	at 	the
meeting.
In 	accordance 	with 	California 	Evidence 	Code 	section 	413,
the 	ALJ 	exercised 	his 	discretion 	to 	draw 	an 	adverse 	inference
from 	the 	University's 	refusal 	to 	provide 	evidence 	found 	to 	be
relevant. 	He 	drew 	the 	inference 	that 	Rosenthal 	and 	the 	Speech
Department 	were 	verbally 	attacked 	at 	the 	meeting 	by 	University
9

administrators, 	but 	stopped 	short 	of 	inferring 	that 	the 	verbal
attack 	clearly 	established 	anti-union 	animus. 	He 	instead
viewed 	the 	inference 	drawn 	as 	merely 	supporting, 	along 	with
other 	factors, 	a 	prima 	facie 	case 	of 	retaliation. 	The 	ALJ
commented 	that, 	in 	view 	of 	the 	record 	as 	a 	whole, 	he 	could 	not
in 	good 	conscience 	draw 	a 	broader 	inference. 	While 	the 	ALJ 	did
find 	that 	a 	prima 	facie 	case 	of 	retaliation 	was 	established
with 	regard 	to 	the 	Sears 	Plan, 	he 	concluded 	that 	the 	University
overwhelmingly 	demonstrated 	that 	the 	plan 	would 	have 	been
developed 	and 	implemented 	regardless 	of 	the 	exercise 	of
protected 	rights 	by 	the 	lecturers.
On 	appeal, 	UCAFT 	claims 	that 	the 	drawing 	of 	a 	narrow
inference 	does 	not 	square 	with 	the 	ALJ's 	comments 	early 	in 	the
hearing 	when 	he 	denied 	the 	University's 	motion 	to 	quash 	the
subpeona 	seeking 	the 	tape. 	In 	considering 	the 	motion, 	the 	ALJ
conducted 	an 	in 	camera 	inspection 	of 	the 	tape 	in 	order 	to
determine 	its 	relevancy. 	At 	that 	time 	he 	found 	the 	tape
relevant 	and 	commented 	that 	there 	were 	portions 	he 	did 	not
understand 	and 	that 	it 	would 	likely be 	necessary 	for 	the 	UCAFT
counsel 	to 	have 	assistance 	in 	comprehending 	the 	meaning 	and
implications 	of 	what 	was 	said 	as 	well. 	He 	also 	commented 	that,
given 	UCAFT's 	theory 	of 	the 	case, 	the 	tape 	might 	be 	critical 	in
its 	effort 	to 	establish 	a 	prima 	facie 	case. 	Given 	the 	above
comments, 	along 	with 	language 	in 	the 	proposed 	decision
reflecting 	that 	the 	ALJ 	may have 	considered his 	in 	camera
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inspection 	in 	deciding 	not 	to 	draw 	the 	broadest 	possible
adverse 	inference, 	UCAFT 	insists 	that 	the 	ALJ 	contradicted
himself 	and 	that 	the 	failure 	to 	produce 	the 	tape 	severely
prejudiced 	its 	case. 	To 	this 	we 	have 	several 	responses.
First, 	we 	note 	that 	the 	ALJ's 	comments 	accompanying 	his
ruling 	on 	the 	motion 	to 	quash 	came 	early 	in 	the 	hearing, 	prior
to 	the 	presentation 	of 	the 	bulk 	of 	the 	evidence 	and 	prior 	to 	an
opportunity 	to 	review 	the 	record 	and 	analyze 	and 	evaluate 	all
the 	evidence. 	We 	agree 	with 	the 	University's 	arguments 	that
inherent 	in 	the 	discretion 	allowed 	the 	trier 	of 	fact 	under
Evidence 	Code 	section 	413 	is 	the 	consideration 	of 	both 	the
record 	as 	a 	whole 	and 	the 	proffered 	rationale 	for
noncompliance. 	Here, 	the 	ALJ 	considered 	both, 	finding 	that 	the
record 	as 	a 	whole 	did 	not 	support 	the 	retaliation 	claim 	and,
while 	not 	agreeing 	with 	the 	University's 	rationale 	for
noncompliance, 	he 	did 	not 	find 	the 	University's 	arguments 	to 	be
frivolous.
We 	agree 	that 	the 	record 	as 	a 	whole 	fails 	to 	support 	the
retaliation 	claim 	and 	that 	the 	University's 	rationale 	for
noncompliance, 	while 	not 	convincing, 	was 	of 	arguable 	merit 	and
not 	pretextual. 	Under 	the 	circumstances, 	we 	find 	that 	the 	ALJ
drew 	the 	proper 	inference 	from 	the 	University's 	failure 	to
produce 	the 	tape. 	In 	any 	event, 	we 	are 	persuaded by 	the 	record
that 	the 	Speech 	Department 	and 	CS 	Programs 	had 	been 	a 	source 	of
controversy 	long before 	any 	of 	the 	protected 	activity
11

involved 	herein 	took 	place 	and 	that 	the 	reorganization 	plan 	(as
well 	as 	other 	alleged 	retaliatory 	actions) 	were 	merely 	the
latest 	installments 	in 	a 	long-term 	internal 	struggle 	over 	the
future 	of 	those 	programs. 	While 	no 	doubt 	in 	the 	eyes 	of 	many
the 	actions 	taken 	by 	the 	University 	were 	unfair 	or
ill-conceived, 	we 	are 	convinced 	they 	were 	taken 	for 	academic
reasons. 	Consequently, 	even 	if 	an 	inference 	of 	unlawful 	motive
was 	raised 	by 	the 	University's 	refusal 	to 	produce 	the 	tape, 	we
would 	conclude 	that 	the 	complained-of 	actions 	would 	have 	been
taken 	even 	in 	the 	absence 	of 	such 	unlawful 	motive.
UCAFT's 	remaining 	exceptions 	relate 	to 	the 	attempted
removal 	of 	the 	speech 	FTE's 	in 	the 	fall 	of 	1983. 	First, 	UCAFT
excepts 	to 	the 	ALJ's 	conclusion 	that 	the 	attempted 	removal 	of
the 	speech 	lecturer 	FTEs 	in 	1983 	was 	done 	for 	the 	reasons
stated by 	Provost 	Ray 	Orbach, 	i.e., 	due 	to 	enrollment 	pressures
on 	English 	4, 	caused 	by 	its 	inclusion 	as 	a 	requirement 	for 	the
economics 	major. 	UCAFT 	asks 	us 	to 	take 	official 	notice 	of 	UCLA
catalogs 	from 	1979-1985, 	which 	show 	that 	English 	4 	did 	not
become 	a 	requirement 	for 	the 	economics 	major 	until 	the 	1984-85
year. 	This 	demonstrates, 	UCAFT 	argues, 	that 	Orbach 	lied 	about
the 	motivation 	for 	the 	attempted 	removal 	of 	the 	FTEs.
PERB 	Regulation 	32300(b) 4 	states 	that 	exceptions 	shall
make 	reference 	only 	to 	matters 	contained 	in 	the 	record. 	Our
4PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	31001 	et 	seq.
12

regulations 	do 	not 	provide 	a 	standard 	for 	accepting 	new
evidence 	on 	appeal 	from 	a 	proposed 	decision. 	However, 	in 	San
Mateo 	Community 	College 	District 	(1985) 	PERB 	Decision 	No. 	543,
the 	Board 	adopted 	the 	same 	standard 	which 	is 	prescribed by
regulation 	for 	requests 	for 	reconsideration 	(Regulation 	32410).
Thus, 	evidence 	offered 	for 	the 	first 	time 	on 	appeal 	must 	be:
newly 	discovered 	evidence 	•.• 	which 	was
not 	previously 	available 	and 	could 	not 	have
been 	discovered 	with 	the 	exercise 	of
reasonable 	diligence.
Here, 	as 	in 	San 	Mateo, 	supra, 	the 	proffering 	of 	new 	evidence
must 	be 	denied 	because 	it 	is 	unaccompanied 	by 	any 	showing 	that
the 	evidence 	was 	previously 	unavailable. 	Even 	if 	we 	were 	to
entertain 	the 	new 	evidence, 	it 	would 	not 	affect 	the 	outcome 	of
the 	case. 	While 	it 	may 	show 	that 	Orbach 	was 	mistaken 	about 	the
source 	of 	overenrollment 	of 	English 	4, 	the 	record 	is 	replete
with 	evidence 	that 	there 	was 	serious 	overenrollment 	in 	English 	4
at 	the 	time 	Orbach 	tried 	to 	transfer 	the 	FTEs. 	Whether 	this
was 	due 	to 	new 	or 	planned 	requirements 	for 	the 	economics 	major
or 	due 	to 	other 	factors 	is 	immaterial, 	for 	it 	was 	the
overenrollment, 	not 	the 	source, 	that 	principally 	motivated
Orbach 	in 	his 	actions. 	Our 	view 	of 	the 	record 	provides 	us 	no
reason 	to 	believe 	Orbach 	intentionally 	lied 	about 	the 	source 	of
the 	overenrollment. 	Nor 	does 	the 	fact 	that 	Orbach 	was 	mistaken
as 	to 	the 	source 	of 	the 	overenrollment 	taint 	the 	remainder 	of
his 	testimony.
Next, 	UCAFT 	quarrels 	with 	the 	ALJ's 	finding 	that 	there 	was
no 	credible 	evidence 	to 	refute 	Orbach's 	testimony 	that 	he 	was
13

unaware 	of 	the 	forthcoming 	PERB 	election 	for 	non-Senate 	faculty
when 	he 	attempted 	to 	remove 	the 	speech 	FTEs 	in 	November 	1983.
UCAFT 	argues, 	with 	some 	justification, 	that 	Orbach's 	testimony
on 	this 	point 	was 	vague 	and 	uncertain 	and 	could 	best 	be
summarized 	by 	saying he 	was 	not 	sure 	when he 	found 	out 	about
the 	upcoming 	election. 	Nevertheless, 	our 	concurrence 	with 	the
ALJ's 	finding 	that 	Orbach 	was 	not 	motivated by 	anti-union
animus 	would 	not 	be 	affected 	even 	if 	we 	were 	to 	determine 	that
Orbach 	was 	aware 	of 	the 	election before 	attempting 	to 	remove
the 	FTEs. 	Other 	than 	the 	timing 	of 	the 	attempted 	removal,
there 	is 	simply 	no 	evidence 	in 	the 	record 	that 	demonstrates 	a
link 	between 	Orbach's 	conduct 	and 	the 	lecturers' 	protected
activity. 5 	As 	the 	ALJ 	pointed 	out, 	Orbach's 	action 	could
only 	fuel 	pro-union 	sentiment 	among 	lecturers 	and 	thus 	it 	would
be 	a 	foolish 	action 	for 	an 	opponent 	of 	exclusive 	representation
to 	take.
Lastly, 	UCAFT 	objects 	to 	the 	ALJ's 	refusal 	to 	entertain 	the
1983 	attempted 	removal 	of 	the 	speech 	FTEs 	as 	an 	actionable
allegation 	(rather 	than 	as 	background 	evidence). 	Specifically,
UCAFT 	excepts 	to 	the 	ALJ's 	conclusion 	that 	the 	1983 	events 	were
not 	sufficiently 	intertwined 	with 	the 	later 	conduct 	alleged 	in
5The 	Board 	has 	held 	that 	timing 	alone 	is 	insufficient 	to
prove 	the 	nexus 	between 	the 	protected 	activity 	and 	the 	adverse
action 	that 	is 	required 	to 	raise 	an 	inference 	of 	unlawful
motive. 	Charter 	Oak 	Unified 	School 	District 	(1984) 	PERB
Decision 	No. 	404.
14

the 	charge 	and 	complaint 	as 	to 	consider 	them 	part 	of 	the 	same
course 	of 	conduct. 	We 	agree 	with 	the 	ALJ 	that 	this 	allegation
is 	not 	actionable, 	but 	because 	it 	is 	untimely. 	Whether 	the
attempted 	removal 	of 	the 	speech 	FTEs 	in 	the 	fall 	of 	1983 	is
"intertwined 	with" 	or 	"relates 	back" 	to 	the 	conduct 	alleged 	in
the 	original 	charge, 	the 	fact 	remains 	that 	the 	allegation 	based
on 	1983 	conduct 	was 	untimely 	at 	the 	time 	the 	original 	charge
was 	filed. 	Consequently, 	the 	1983 	allegation 	is 	untimely 	and
it 	cannot be 	made 	timely 	under 	any 	principle 	of 	pleading 	or
procedure.
When 	an 	unalleged 	violation 	or 	an 	amendment 	is 	entertained
or 	allowed 	despite 	being 	untimely 	on 	its 	face, 	it 	is 	because 	it
is 	deemed 	to 	have 	been 	filed 	at 	the 	same 	time 	as 	the 	original
charge. 	See 	Witkin; 	California 	Procedure 	(1985) 	3d 	Ed~;
p. 	579. 	Thus, 	this 	"relation back" 	doctrine 	saves 	only
allegations 	of 	conduct 	that 	occurred 	no 	earlier 	than 	6 	months
(assuming 	a 	6-month 	statute 	of 	limitations) 	prior 	to 	the 	filing
of 	the 	original 	charge 	or 	complaint. 	This 	has 	been 	implicit 	in
prior 	Board 	holdings 	(see, 	e.g., 	Eureka 	City 	School 	District
(1985) 	PERB 	Decision 	No. 	481, 	Gonzales 	Union 	High 	School
District 	(1984) 	PERB 	Decision 	No. 	410), 	and 	has 	been 	stated
expressly by 	the 	federal 	courts 	in 	reviewing 	NLRB 	(National
Labor 	Relations 	Board) 	decisions 	(see 	NLRB 	v~ 	Hotel 	Tropicana
(9th 	Cir. 	1958) 	398 	F.2d 	430 	[68 	LRRM 	2726]; 	~ 	v~ 	Central
Power 	& 	Light 	Co. 	(5th 	Cir. 	1970) 	426 	F.2d 	813 	[74 	LRRM
2268]). 	Otherwise, 	an 	allegation 	that 	would 	have 	been
15

dismissed 	as 	untimely had 	it been 	included 	in 	the 	original
charge 	or 	complaint 	could 	become 	actionable 	if 	introduced
instead 	at 	the 	hearing. 	This 	would 	be 	a 	truly 	absurd 	and
unjust 	result. 	Thus, 	the 	earliest 	the 	allegation 	of 	the
attempted 	removal 	of 	the 	speech 	FTEs 	in 	1983 	may be 	deemed 	to
have 	been 	filed 	is 	the 	time 	of 	the 	original 	charge, 	January 	23,
1985. 	The 	allegation 	is 	therefore 	untimely 	under 	any 	theory.
The 	University's 	Exceptions
To 	reiterate, 	the 	ALJ 	found 	violations 	based 	on 	the
University's 	failure 	to 	bargain 	the 	decision 	to 	transfer 	the
speech 	lecturers 	to 	the 	Writing 	Program, 	the 	effects 	of 	the 	de
facto 	disestablishment 	of 	the 	Speech 	Department 	and 	the 	effects
of 	greater 	reliance 	on 	regular 	(Senate) 	faculty. 	The
University 	excepts 	to 	all 	these 	findings~ 	as 	well 	as 	to 	various
perceived 	implications 	of 	the 	proposed 	decision. 	However, 	the
University 	does 	not 	except 	to 	the 	finding 	of 	a 	violation
insofar 	as 	it 	is 	based 	solely 	on 	the 	failure 	of 	the
University's 	bargaining 	team 	to 	respond 	promptly 	to 	requests 	to
bargain 	effects 	of 	the 	Sears 	Plan. 6
A main 	theme 	running 	through 	much 	of 	the 	University's
argument 	on 	appeal 	is 	the 	notion 	that 	the 	duty 	to 	bargain
6This 	is 	a 	curious 	position 	to 	take, 	since 	the 	University
also 	argues 	that 	no 	duty 	to 	bargain had 	yet 	arisen. 	While 	the
ALJ 	indeed 	found 	that 	the 	University's 	dilatory 	behavior
evidenced 	the 	lack 	of 	a 	genuine 	desire 	to 	negotiate, 	we 	fail 	to
see 	how 	such 	conduct 	could 	be 	unlawful 	in 	the 	absence 	of 	an
underlying 	duty 	to 	bargain.
16

effects 	prior 	to 	implementaion 	could 	not 	have 	been 	violated
because 	no 	implementation 	of 	negotiable 	aspects 	of 	the 	plan
actually 	took 	place. 	The 	University 	argues 	that 	bargaining
need 	only 	take 	place 	a 	sufficient 	amount 	of 	time 	before
implementation 	to 	allow 	meaningful 	bargaining 	to 	take 	place. 	A
delay 	in 	implementation, 	therefore, 	delays 	the 	onset 	of 	the
bargaining 	obligation.
PERB 	precedent 	clearly 	establishes 	that 	the 	duty 	to 	bargain
effects 	arises 	when 	a 	firm 	decision 	is 	made. 	Mt. 	Diablo
Unified 	School 	District 	(1983) 	PERB 	Decision 	No. 	373. 	The
University 	argues 	that 	the 	use 	of 	the 	word 	"when" 	is 	ambiguous
in 	this 	context 	and 	could 	mean 	either 	"as 	soon 	as" 	or 	simply
"after." 	The 	University, 	of 	course, 	subscribes 	to 	the 	latter
meaning. 	Applied 	to 	the 	facts 	of 	this 	case, 	the 	University
claims 	that 	since 	implementation 	of 	negotiable 	aspects 	of 	the
Sears 	Plan 	never 	took 	place, 	the 	"window 	period" 	prior 	to
implementation 	was 	suspended 	indefinitely 	so 	that 	no 	duty 	to
bargain 	ever 	actually 	arose. 	We 	find 	this 	argument 	creative
but 	unpersuasive.
We 	believe 	the 	language 	of 	Mt. 	Diablo, 	supra, 	is
unambiguous. 	The 	duty 	to 	provide 	notice 	and 	a 	reasonable
opportunity 	to bargain 	effects 	arises 	as 	soon 	as 	a 	firm
decision 	is 	made, 	i.e., 	when 	the 	ultimate 	decision-making
authority 	has 	formally 	adopted 	a 	course 	of 	action. 	A close
reading 	of 	Mt. 	Diablo 	makes 	this 	clear. 	At 	p. 	25, 	the 	Board
17

cited 	approvingly 	precedent 	under 	the 	National 	Labor 	Relations
Act 	which 	states 	that 	the 	duty 	to bargain 	effects 	arises 	"once"
the 	decision 	is 	made 	(NLRB 	v. 	Transmarine 	Navigation 	Corp. 	(9th
Cir. 	1967) 	380 	F.2d 	933 	[65 	LRRM 	2861]). 	At 	p. 	27, 	the 	Board
concludes 	by 	stating: 	"In 	sum, 	we 	conclude 	that 	the 	District
did 	not 	fail 	to 	provide 	prompt 	notice 	and 	an 	opportunity 	to
negotiate 	at 	the 	point 	at 	which 	it 	reached 	a 	firm 	decision 	•.
" 	(Emphasis 	added.) 	This, 	of 	course, 	does 	not 	mean 	that 	the
employer 	must 	be 	prepared 	to 	sit 	down 	and 	negotiate 	the 	day
after 	the 	decision 	even 	though 	implementation 	is 	not 	planned
for 	many 	months. 	It 	simply means 	that 	once 	the 	decision 	is
made 	the 	employer 	must 	respond 	to 	requests 	to 	negotiate 	in 	a
manner 	consistent 	with 	its 	duty 	to 	bargain 	in 	good 	faith.
Generally, 	good 	faith 	would 	not 	be 	demonstrated 	by 	refusing 	to
negotiate 	until 	some 	specified 	length 	of 	time 	prior 	to
implementation. 	To 	provide 	that 	the 	duty 	does 	not 	arise
immediately 	would 	allow 	a 	"cat 	and 	mouse 	game" 	whereby 	the 	date
of 	implementation 	could 	be 	postponed 	in 	order 	to 	avoid
bargaining. 	In 	our 	view, 	the 	goals 	of 	harmonious 	labor
relations 	and 	efficient 	provision 	of 	educational 	services 	are
better 	served 	by 	requiring 	the 	parties 	to 	sit 	down 	and 	work
toward 	agreement 	as 	soon 	as 	is 	practical 	after 	the 	firm
decision 	is 	made.
As 	the 	ALJ 	noted, 	in 	this 	case 	the 	record 	reflects 	that 	a
firm 	decision 	was 	made 	at 	least 	as 	of 	the 	issuance 	of 	the
18

September 	10, 	1984 	memo 	and 	that 	shortly 	thereafter 	the 	UCAFT
made 	demands 	to 	bargain. 	While 	the 	fact 	that 	the 	negotiable
aspects 	of 	the 	plan 	were 	apparently 	later 	abandoned
extinguished 	any 	further 	duty 	to 	bargain 	their 	effects, 	it 	does
not 	excuse 	or 	obviate 	the 	illegality 	of 	the 	refusal 	to 	bargain
prior 	to 	such 	abandonment. 	Therefore, 	we 	affirm 	the 	finding 	of
a 	violation 	for 	failure 	to 	bargain 	the 	effects 	of 	the 	Sears
Plan.
The 	University's 	next 	exception 	is 	to 	the 	ALJ's 	conclusion
that 	the 	decision 	to 	transfer 	the 	speech 	classes 	and 	lecturers
to 	the 	Writing 	Program 	was 	negotiable. 	The 	ALJ 	relied 	on 	the
general 	proposition 	that 	transfers 	are 	negotiable, 	citing 	State
of 	California 	(Department 	of 	Transportation) 	(1983) 	PERB
Decision 	No. 	361-S. 	The 	University 	asserts 	that 	it 	was 	an
error 	to 	simply 	categorize 	the 	contemplated 	action 	as 	a
transfer 	and, 	thus, 	negotiable. 	Instead, 	the 	University
argues, 	the 	action 	must 	be 	evaluated 	on 	a 	case-by-case 	basis,
taking 	into 	consideration 	whether 	imposing 	a 	bargaining
obligation 	would 	significantly 	abridge 	the 	employer's
managerial 	prerogatives. 	In 	fact, 	the 	University 	asserts, 	the
decision 	in 	this 	case 	is 	more 	accurately 	defined 	as 	an 	academic
one 	to 	reorganize 	the 	CS 	Program 	and 	combine 	writing 	and 	speech
classes 	into 	the 	same 	program, 	while 	the 	transfer 	of 	the
lecturers 	would 	merely be 	an 	effect 	of 	that 	decision.
We 	agree 	with 	the 	University 	that 	the 	decision 	to 	transfer
the 	Speech 	I 	and 	II 	courses 	was 	not 	negotiable 	and 	we 	reverse
19

the 	ALJ 	on 	this 	point. 	While 	transfers 	are 	as 	a 	general 	rule
negotiable, 	we 	believe 	the 	ALJ 	failed 	to 	distinguish 	between
the 	transfer 	of 	the 	Speech 	I 	and 	II 	courses 	and 	the 	transfer 	of
the 	speech 	lecturers. 	We 	view 	the 	transfer 	of 	the 	lecturers 	as
analytically 	distinct 	from 	the 	transfer 	of 	the 	speech 	courses.
The 	transfer 	of 	the 	lecturers 	is 	most 	accurately 	viewed 	as 	an
effect 	of 	the 	transfer 	of 	the 	speech 	courses 	to 	the 	Writing
Program. 	While 	the 	transfer 	of 	the 	speech 	lecturers 	to 	the
Writing 	Program 	was 	the 	most 	likely 	consequence 	of 	the 	transfer
of 	the 	speech 	courses, 	it 	was 	not 	a 	foregone 	conclusion. 	The
lecturers 	could 	also 	have 	been 	offered 	other 	positions 	with 	the
University 	or 	not 	rehired.
Here, 	the 	transfer 	of 	the 	speech 	courses 	was 	contemplated
as 	part 	of 	an 	academic 	reorganization; 	based 	upon 	academic
considerations 	dealing 	with 	the 	future 	of 	the 	CS 	Program 	and
the 	continued 	viability 	of 	a 	speech 	department. 	As 	such,
requiring 	negotiations 	on 	the 	decision 	itself 	would 	seriously
intrude 	upon 	the 	University's 	managerial 	prerogatives 	in
establishing 	and 	maintaining 	its 	educational 	offerings 	and
organizational 	structure.
HEERA 	section 	3562(q) 	states, 	in 	pertinent 	part:
••• 	The 	scope 	of 	representation 	shall 	not
include:
(1) 	Consideration 	of 	the 	merits, 	necessity,
or 	organization 	of 	any 	service, 	act1v1ty, 	or
program 	established 	by 	law 	or 	resolution 	of
the 	regents 	or 	the 	directors, 	except 	for 	the
20

terms 	and 	conditions 	of 	employment 	of
employees 	who 	may be 	affected 	thereby.
(3) 	Admission 	requirements 	for 	students,
conditions 	for 	the 	award 	of 	certificates 	and
degrees 	to 	students, 	and 	the 	content 	and
supervision 	of 	courses, 	curricula, 	and
research 	programs, 	as 	those 	terms 	are
intended by 	the 	standing 	orders 	of 	the
regents 	or 	the 	directors. 	(Emphasis 	added.)
We 	find 	that 	the 	decisions 	involved 	here, 	concerning 	the
location 	of 	the 	CS 	Program 	and 	the 	speech 	courses 	and 	the
continuation 	of 	the 	Speech 	Department, 	clearly 	fall 	within 	the
express 	exclusions 	from 	the 	scope 	of 	representation. 	While 	the
fact 	that 	a 	transfer 	of 	lecturers 	was 	a 	likely 	or 	even 	inherent
part 	of 	the 	process 	is 	a 	compelling 	rationale 	for 	requiring
effects 	bargaining, 	it 	does 	not 	change 	the 	fact 	that 	the
possible 	transfer 	of 	the 	lecturers 	would 	spring 	from 	decisions
on 	matters 	that 	are 	clearly 	outside 	the 	scope 	of 	representation.
Two 	of 	the 	University's 	exceptions 	pertain 	to 	the 	ALJ's
discussion 	at 	pp. 	118-119 	of 	the 	proposed 	decision, 	where 	he
concludes 	that 	UCAFT 	was 	denied 	timely 	notice 	and 	a 	reasonable
opportunity 	to 	bargain 	prior 	to 	implementation 	of 	the 	Sears
Plan. 	This 	is 	based 	upon 	the 	UCAFT 	receiving 	notice 	indirectly
via 	the 	September 	10, 	1984 	memo 	from 	Sears 	to 	all 	faculty 	after
implementation 	of 	some 	aspects 	of 	the 	plan 	had 	already 	taken
place. 	The 	University 	makes 	two 	objections: 	(1) 	UCAFT
received 	actual 	notice 	on 	or 	about 	September 	10; 	1984, 	so
formal 	notice 	was 	unnecessary; 	and 	(2) 	only 	wholly 	nonnegotiable
21

aspects 	of 	the 	plan 	had 	been 	implemented; 	thus 	these 	actions
were 	unrelated 	to 	any 	possible 	bargaining 	obligation. 	The
University 	asserts 	that 	the 	ALJ's 	conclusion 	muddles 	negotiable
and 	nonnegotiable 	aspects 	of 	the 	plan 	and 	carries 	the
implication 	that 	HEERA 	employers 	must 	first 	bargain 	with
employee 	organizations 	before 	implementing 	wholly 	nonnegotiable
decisions 	as 	if 	the 	actions 	were 	announced 	in 	the 	same 	document
as 	negotiable 	actions, 	even 	though 	the 	two 	sets 	of 	actions 	are
independent 	of 	one 	another.
First, 	we 	agree 	that 	the 	record 	reflects 	that 	UCAFT
received 	actual 	notice 	of 	the 	Sears 	Plan 	on 	or 	about 	September
10, 	1984 	(the 	date 	of 	the 	memo 	from 	Sears); 	thus, 	the 	failure
to 	give 	formal 	notice 	is 	of 	no 	legal 	import. 	See 	Victor 	Valley
Union 	High 	School 	District 	(1986) 	PERB 	Decision 	No: 	565: 	We
also 	agree 	with 	the 	University 	that 	the 	aspects 	of 	the 	plan
which 	were 	implemented 	were 	not 	negotiable 	in 	any 	respect.
These 	were: 	(1) 	moving 	the 	CS 	Program 	under 	the 	auspices 	of
the 	Division 	of 	Social 	Sciences 	(from 	Humanities); 	(2) 	transfer
of 	Professor 	Waldo 	Phelps 	back 	to 	the 	English 	Department; 	and
(3) 	installation 	of 	Professor 	Malamuth 	as 	the 	new 	chair 	of
Speech 	and 	cs. 	All 	of 	these 	reflect 	nonnegotiable 	decisions 	in
that 	they 	are 	clearly 	outside 	the 	scope 	of 	representation 	with
regard 	to 	lecturers. 	Further, 	there 	is 	no 	evidence 	in 	the
record, 	nor 	any 	reason 	to 	suspect, 	that 	these 	actions 	would
have 	foreseeable 	negotiable 	effects 	(See 	Mt. 	Diablo 	Unified
22

School 	District 	(1983) 	PERB 	Decision 	No. 	373). 	Further, 	these
actions 	are 	not 	inextricably 	linked 	to 	the 	aspects 	of 	the 	plan
that 	would 	have 	negotiable 	effects. 	The 	two 	sets 	of 	actions
are 	not 	interdependent 	and 	each 	could 	be 	justified 	on 	academic
grounds 	in 	the 	absence 	of 	the 	other. 	Consequently, 	we 	find 	the
University's 	actions 	with 	regard 	to 	the 	three 	above-listed
items 	to be 	of 	no 	effect 	with 	regard 	to 	bargaining
obligations. 	As 	we 	conclude 	that 	the 	implementation 	did 	not
touch 	upon 	negotiable 	matters, 	we 	reverse 	the 	ALJ's 	finding 	of
a 	separate 	violation 	based 	upon 	implementation 	of 	portions 	of
the 	plan 	prior 	to 	notice 	and 	an 	opportunity 	to bargain. 7
The 	remainder 	of 	the 	University's 	exceptions 	are 	based 	on
an 	overly 	expansive 	reading 	of 	the 	proposed 	decision. 	For
example; 	the 	University 	appears 	to 	object 	to 	a 	perceived
7Though 	it 	is 	not 	entirely 	clear, 	the 	ALJ 	also 	may 	have
found 	that 	the 	implementation 	reflected 	that 	a 	firm 	decision
was 	made 	well 	before 	actual 	notice 	was 	given; 	and 	that 	the
delay 	in 	giving 	notice 	was 	unlawful. 	In 	any 	event, 	we 	find 	no
such 	violation. 	While 	the 	genesis 	of 	the 	Sears 	Plan 	was 	in
early 	1984, 	the 	plan 	was 	subject 	to 	re-examination 	and 	revision
thereafter. 	The 	September 	10, 	1984 	memo 	was 	the 	first 	formal
announcement 	of 	the 	plan 	to 	anyone. 	Since 	nonnegotiable
aspects 	of 	the 	plan had 	been 	implemented 	by 	the 	time 	of 	the
memo, 	a 	firm 	decision 	as 	to 	those 	matters 	may 	have 	been 	reached
some 	time 	prior 	to 	September 	10. 	However, 	the 	record 	does 	not
reflect 	how 	long 	before 	September 	10 	such 	a 	decision 	was 	made
nor 	whether 	negotiable 	aspects 	were 	also 	decided 	upon 	at 	the
same 	time. 	Therefore, 	with 	respect 	to 	negotiable 	matters, 	we
find 	that 	September 	10, 	1984 	is 	the 	most 	fair 	and 	reasonable
date 	in 	fixing 	the 	time 	of 	a 	firm 	decision.
23

finding 	of 	the 	ALJ 	that 	the 	University 	unlawfully 	failed 	to
bargain 	the 	decision 	to 	lessen 	reliance 	on 	lecturers. 	In 	fact,
the 	ALJ, 	in 	his 	discussion 	of 	failure 	to 	bargain 	allegations
(at 	pp. 	113-120), 	concludes 	that 	a 	decision 	was 	negotiable 	only
with 	regard 	to 	the 	transfer 	to 	the 	Writing 	Program. 	Therefore,
this 	exception 	is 	unfounded.
Similarly, 	the 	University 	contends 	that 	the 	ALJ 	improperly
found 	a 	violation 	based 	upon 	the 	planned 	termination 	of 	two 	CS
lecturers 	in 	1985. 	The 	University 	adamantly 	asserts, 	and 	quite
correctly, 	that 	the 	termination 	of 	the 	two 	lecturers 	was 	never
decided 	upon 	and 	was 	merely 	an 	idea 	communicated 	by 	Sears 	to
Vice-Provost 	for 	Planning 	and 	Administration 	Gerald 	Kissler,
and 	that 	mere 	ideas 	or 	proposals 	discussed 	by 	administrators
but 	not 	yet 	agreed 	upon 	are 	not 	negotiable~ 	However, 	the 	ALJ
made 	no 	such 	finding. 	He 	merely 	considered 	the 	memo 	as
evidence 	that 	termination 	was 	one 	of 	many 	foreseeable 	effects
of 	the 	decision 	to 	reduce 	reliance 	on 	lecturers.
Lastly, 	the 	University 	asserts 	that 	the 	ALJ's 	conclusion
that 	it 	violated 	its 	bargaining 	obligations 	was 	based 	in 	part
on 	an 	erroneous 	finding 	that 	the 	speech 	lecturers 	were 	actually
transferred 	temporarily 	to 	the 	Writing 	Program, 	causing 	the
delay 	in 	the 	lecturers' 	reappointment 	and 	paychecks. 	The
University 	argues 	that 	no 	transfer 	took 	place 	and 	that 	the
delay 	was 	simply 	the 	result 	of 	bureaucratic 	error. 	This, 	we
believe 	mischaracterizes 	the 	ALJ's 	decision.
24

Nowhere 	did 	the 	ALJ 	find 	that 	an 	actual 	transfer 	had 	taken
place. 	He 	did 	find, 	based 	primarily 	upon 	the 	testimony 	of
University 	witness 	Patricia 	Topper, 	an 	administrative 	analyst
in 	Provost 	Orbach's 	office, 	as 	well 	as 	upon 	documentary
evidence, 	that 	the 	speech 	lecturer 	FTEs 	had 	been 	allocated
temporarily 	to 	the 	Writing 	Program 	for 	the 	1985-86 	year. 	No
further 	implementation had 	taken 	place, 	such 	as 	appointment 	of
lecturers 	by 	the 	Writing 	Program, 	so 	it 	never 	became 	more 	than
a 	paper 	change 	in 	FTE 	allocations. 	Implicit 	in 	the 	ALJ's
analysis 	is 	the 	conclusion 	that 	preliminary 	steps 	were 	taken
toward 	implementation 	which 	violated 	the 	duty 	to 	bargain, 	a
direct 	result 	of 	which 	was 	the 	delay 	in 	reappointment 	and
paychecks. 	Our 	reading 	of 	the 	record 	supports 	this
conclusion. 	While 	the 	delay 	could have 	been 	avoided 	had 	the
decision 	to 	withdraw 	the 	allocation 	to 	the 	Writing 	Program 	been
communicated 	promptly 	to 	the 	appropriate 	University 	staff, 	the
delay 	would 	not 	have 	taken 	place 	but 	for 	the 	steps 	taken 	to
allocate 	the 	speech 	lecturer 	FTEs 	to 	the 	Writing 	Program. 8
8The 	proposed 	order 	states 	that 	the 	lecturers 	shall 	be
reimbursed 	for 	"all 	losses 	incurred" 	from 	the 	delay 	in
reappointment, 	which 	in 	turn 	caused 	a 	delay 	in 	issuance 	of
August 	1985 	paychecks. 	Because 	we 	find 	that 	the 	vagueness 	of
this 	could 	lead 	unnecessarily 	to 	a 	compliance 	dispute, 	we 	will
clarify 	the 	order 	so 	as 	to 	provide 	payment 	for 	any 	loss 	of
wages 	or 	benefits 	due 	to 	the 	delay.
25

CONCLUSION
In 	sum, 	we 	affirm 	the 	attached 	proposed 	decision, 	except
insofar 	as 	it 	holds 	that 	the 	decision 	to 	transfer 	the 	Speech
courses 	to 	the 	Writing 	Program 	was 	negotiable 	and 	that 	the
University 	unlawfully 	failed 	to 	provide 	notice 	and 	a 	reasonable
opportunity 	to 	bargain 	prior 	to 	September 	10, 	1984.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	purusant 	to HEERA
section 	3563.3, 	it 	is 	hereby 	ORDERED 	that 	the 	Regents 	of 	the
University 	of 	California 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	to 	meet 	and 	negotiate 	in 	good 	faith 	with
the 	University 	Council; 	American 	Federation 	of 	Teachers;
AFL-CIO 	over 	the 	effects 	of 	those 	aspects 	of 	the 	"Sears
Reorganization 	Plan" 	that 	have 	foreseeable 	impact 	upon 	the
terms 	and 	conditions 	of 	employment 	of 	Unit 	18 	members.
(2) 	Denying 	the 	University 	Council, 	American
Federation 	of 	Teachers, 	AFL-CIO 	its 	right 	to 	represent 	Unit 	18
members 	by 	failing 	to 	meet 	and 	negotiate 	about 	matters 	within
the 	scope 	of 	representation.
(3) 	Interfering 	with 	Unit 	18 	members' 	right 	to 	select
an 	exclusive 	representative 	by 	failing 	to 	meet 	and 	negotiate
about 	matters 	within 	the 	scope 	of 	representation 	with 	the
University 	Council, 	American 	Federation 	of 	Teachers, 	AFL-CIO.
26

B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER 	EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
(1) 	Suspend 	further 	implementation 	of 	the 	"Sears
Reorganization 	Plan" 	and, 	upon 	request, 	meet 	and 	negotiate 	with
the 	University 	Council, 	American 	Federation 	of 	Teachers,
AFL-CIO 	concerning 	the 	effects 	of 	those 	aspects 	of 	the 	Plan
which 	have 	a 	foreseeable 	impact 	upon 	the 	terms 	and 	conditions
of 	employment 	of 	Unit 	18 	members.
(2) 	Reimburse 	the 	lecturers 	in 	the 	Speech 	Department
of 	the 	UCLA 	campus 	for 	all 	loss 	of 	wages 	and 	benefits 	incurred
as 	a 	result 	of 	the 	delay 	in 	receiving 	their 	pay 	during 	the
summer 	of 	1985, 	including 	interest 	at 	10 	percent 	per 	annum.
(3) 	Within 	thirty-five 	(35) 	days 	following 	the 	date
this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration~ 	post
copies 	of 	the 	attached 	Notice 	marked 	"Appendix," 	signed 	by 	an
authorized 	representative 	of 	the 	University, 	in 	conspicuous
places 	where 	notices 	to 	employees 	are 	customarily 	placed 	at 	the
headquarters 	office 	and 	at 	each 	of 	the 	campus 	sites 	for 	thirty
(30) 	consecutive 	workdays 	during 	the 	regular 	academic 	work
year. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the
Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered 	by
any 	other 	material.
(4) 	Written 	notification 	of 	the 	actions 	taken 	to
comply 	with 	this 	Order 	shall 	be 	made 	to 	the 	San 	Francisco
27

Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance 	with 	her 	instructions.
Members 	Shank 	and 	Cordoba 	joined 	in 	this 	Decision.
28

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-2O0-H,
University Council, American Federation of Teachers, AFL-CIO
v. Regents of the University of California, wherein all
parties had the right to participate, it has been found that
the Regents of the University of California violated
Government Code section 357l(a), (b) and (c) by
(1) Failing to meet and negotiate in good faith with the
University Council, American Federation of Teachers, AFL-CIO
over the effects of those aspects of the "Sears Reorganization
Plan" that have foreseeable impact upon the terms and
conditions of employment of Unit 18 members.
(2) Denying the University Council, American Federation
of Teachers, AFL-CIO its right to represent Unit 18 members by
failing to meet and negotiate about matters within the scope
of representation.
(3) Interfering with Unit 18 members' right to select an
exclusive representative by failing to meet and negotiate
about matters within the scope of representation with the
University Council, American Federation of Teachers, AFL-CIO.
As a result of this conduct, we have been ordered to post
this Notice and will abide by the following. We will:
(1) Suspend further implementation of the "Sears
Reorganization Plan'' and, upon request, meet and negotiate
with the University Council, American Federation of Teachers,
AFL-CIO concerning the effects of those aspects of the Plan
which have a foreseeable impact upon the terms and conditions
of employment of Unit 18 members.
(2) Reimburse the lecturers in the Speech Department of
the U CLA campus for any loss of wages and benefits incurred a s

a 	result 	of 	the 	delay 	in 	receiving 	their 	pay 	during 	the 	summer
of 	1985, 	including 	interest 	at 	10 	percent 	per 	annum.
Dated: 	REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA
By
Authorized 	Representative
THIS 	NOTICE 	SHALL 	REMAIN 	POSTED 	FOR 	THIRTY 	(30) 	CONSECUTIVE
WORKDAYS 	FROM 	THE 	DATE 	OF 	POSTING 	AND MUST 	NOT 	BE 	REDUCED 	IN
SIZE, 	ALTERED, 	DEFACED, 	OR 	COVERED 	BY ANY 	OTHER MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL, AMERICAN
FEDERATION OF TEACHERS, AFL-CIO,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Unfair Practice
Case No. SF-CE-200-H
PROPOSED DECISION
(12/19/86)
__ )
Appearances: David S. Averbuck, Esq. and Taylor, Roth & Bush
by Christopher D. Cameron, Esq. for University Council,
American Federation of Teachers, AFL-CIO; Edward M. Opton, Jr.,
Esq. for the Regents of the University of California.
Before Manuel M. Melgoza, Administrative Law Judge.
I. PROCEDURAL HISTORY
The University Council, American Federation of Teachers,
AFL-CIO (AFT, UCAFT, Union or Charging Party) filed the
above-captioned Unfair Practice Charge on January 23, 1985
making various allegations that the Regents of the University
of California (UC, University, or Respondent) violated Higher
Education Employer-Employee Relations Act (HEERA or Act)
sections 357l(a), (b), and (c).1 A First Amended Unfair
lThe Higher Education Employer-Employee Relations Act is
codified at Government Code section 3560, et seq. Secti on 3571
reads, in pertinent part:
3571. UNLAWFUL PRACTICES: EMPLOYER
It shall be unlawful for the higher education employer
to:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

Practice 	Charge 	was 	filedon 	about 	March 	12, 	1985. 	On March 	25,
1985, 	the 	Public 	Employment 	Relations 	Board 	(PERE 	or 	Board)
issued 	a 	Complaint, 	incorporating 	the 	Unfair 	Practice 	Charge 	by
reference.
Respondent 	filed 	its 	Answer 	to 	the 	Complaint 	and 	to 	the
First 	Amended 	Charge 	on 	April 	15, 	1985, 	admitting 	certain
allegations, 	asserting 	certain 	affirmative 	defenses, 	but
denying 	that 	it 	had 	violated 	any 	portion 	of 	the 	HEERA.
An 	informal 	conference 	held 	on 	April 	18, 	1985 	before 	an
administrative 	law 	judge 	of 	PERE 	failed 	to 	result 	in 	a
settlement 	of 	the 	underlying 	disputes.
On May 	15, 	1985, 	the 	parties 	filed 	a 	mutual 	request 	to
place 	the 	proceedings 	in 	abeyance 	so 	that 	they 	could 	explore
settlement 	possibilities 	in 	conjunction with 	ongoing 	collective
bargaining 	negotiations. 	The 	case 	was 	placed 	in 	abeyance 	on
May 	28, 	1985.
On 	July 	5, 	1985, 	the 	Respondent 	notified 	the 	PERB 	that 	the
settlement 	negotiations 	had 	failed 	to 	result 	in 	a 	settlement,
and 	requested 	that 	the 	case 	be 	placed 	on 	the 	hearing 	calendar.
(a) 	Impose 	of 	threaten 	to 	impose 	reprisals 	on
employees, 	to 	discriminate 	or 	threaten 	to 	discriminate
against 	employees, 	or 	otherwise 	to 	interfere 	with,
restrain, 	or 	coerce 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights 	guaranteed
to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive 	representative.
2

A Notice 	of 	Hearing 	was 	issued 	on 	July 	18, 	1985. 	Thereafter, 	a
formal 	evidentiary 	hearing 	was 	conducted 	before 	the 	undersigned
on 	the 	following 	dates: 	September 	30, 	1985; 	October 	1 	and 	2,
1985; 	December 	5, 	6, 	9, 	10, 	11, 	12, 	and 	13, 	1985; 	January 	17,
18, 	19, 	29, 	30, 	and 	31, 	1986; 	March 	24, 	25, 	and 	26, 	1986.
On 	about 	October 	18, 	1985, 	the 	Charging 	Party 	withdrew
paragraphs 	8a 	through 	Bf 	from 	its 	First 	Amended 	Charge. 	Those
paragraphs 	contained 	allegations 	of 	unlawful 	conduct 	directed
by UC 	against 	Sally 	Sutherland. 	A Notice 	of 	Partial
Withdrawal, 	with 	prejudice, 	was 	issued 	by 	the 	undersigned 	on
October 	28, 	1985.
During 	the 	formal 	hearing, 	the 	parties 	reached 	a 	settlement
of 	a 	portion 	of 	the 	Charge 	related 	to 	the 	UC 	San 	Diego 	campus.
Consequently, 	the 	Charging 	Party withdrew, 	with 	prejudice,
paragraphs 	5 	and 	6 	of 	the 	First 	Amended 	Charge. 	A second
Notice 	of 	Partial 	Withdrawal 	was 	issued 	by 	the 	undersigned 	on
April 	29, 	1986.
On 	June 	16, 	1986, 	the 	Charging 	Party 	filed 	a 	written
request 	for 	an 	extension 	of 	time 	in which 	to 	file 	its
post-hearing 	brief. 	The 	request 	was 	granted, 	and 	the 	deadline
for 	filing 	an 	opening 	brief 	was 	changed 	from 	June 	23 	to
July 	23, 	1986.
Opening 	post-hearing 	briefs 	were 	received 	by 	the 	PERB 	on
July 	23 	and 	25, 	1986. 2 Responsive 	post-hearing 	briefs
2Respondent's 	brief 	was 	inadvertently 	filed 	in 	the 	PERB's
3

were 	filed 	by 	the 	parties 	on August 	8, 	1986. 	The 	case 	was 	then
submitted 	for 	proposed 	decision.
II. 	INTRODUCTION
The 	portions 	of 	the 	First 	Amended 	Complaint 	that 	remain 	at
issue 	contain 	a 	lengthy 	recitation 	of 	alleged 	conduct 	broadly
characterized 	as 	threats 	of 	reprisals 	and 	reprisals 	for
engaging 	in 	protected 	activity, 	denials 	of 	collective
bargaining 	rights, 	failures 	to 	engage 	in 	good 	faith 	in 	meeting
and 	conferring 	with 	the 	exclusive 	representative, 	and 	released
time 	interference 	and 	harassment. 	Although 	each 	of 	the
allegations 	was 	greatly 	amplified 	through 	argument 	and 	evidence
during 	the 	hearing, 	they 	are 	summarized 	below 	as 	follows:
1. 	Following 	a 	representation 	election 	at 	which 	the
University 	Council, 	AFT 	was 	selected 	as 	the 	exclusive
representative 	of 	a 	unit 	of 	non-Academic 	Senate 	instructional
employees 	(Unit 	18) 3 , 	and 	after 	the 	selection 	of 	Marde
Gregory 	as 	UCAFT's 	chief 	negotiator, 	the 	University 	of
California 	undertook 	a 	concerted 	effort 	at 	UCLA 	to 	unilaterally
disestablish 	the 	Department 	of 	Speech, 	reorganize 	the
Communications 	Studies 	Program 	(both 	places 	where 	she 	worked)
San 	Francisco 	office, 	and 	later 	forwarded 	to 	the 	Los 	Angeles
Regional 	Office.
3The 	University 	faculty 	consists 	of 	''regular" 	or 	"ladder
rank" 	faculty 	- 	assistant 	professor, 	associate 	professor, 	and
professor 	(who 	are 	members 	of 	the 	Academic 	Senate) 	- 	and
non-ladder, 	non-senate 	faculty 	who 	are 	referred 	to 	as 	visiting
lecturers, 	adjunct •lecturers, 	or 	temporary 	faculty. 	The 	latter
category, 	at 	issue 	in 	this 	case, 	will 	be 	referred 	to'
collectively 	as 	"lecturers."
4

and 	to 	separate 	Gregory 	from 	her 	colleagues.
2. 	Since 	on 	or 	about 	October 	1984 	and 	continuing
thereafter, 	the 	University, 	through, 	inter 	alia, 	Dean 	David
Sears 	and 	Provost 	Raymond 	Orbach, 	has 	made 	numerous 	attempts 	to
create 	difficulties 	for 	Marde 	Gregory 	and 	her 	colleagues 	in 	the
hope 	of 	minimizing 	the 	time 	she 	could 	devote 	to 	collective
bargaining. 	This 	included 	attempts, 	during 	December 	1984 	and
early 	1985, 	to 	condition 	granting 	released 	time 	for
negotiations 	upon 	having 	Gregory's 	department 	chairperson, 	Neil
Malamuth, 	sit 	in 	on 	every 	one 	of 	the 	sessions 	in 	one 	course.
3. 	On 	October 	15, 	1984, 	the 	Speech 	Department 	and 	its
former 	chairperson, 	a 	close 	colleague 	of 	Marde 	Gregory, 	were
verbally 	attacked 	at 	an 	academic 	committee 	meeting 	as 	part 	of
an 	effort 	by 	the 	University 	to 	harass 	Gregory 	and 	her
colleagues 	who 	are 	sympathetic 	to 	her 	activities 	as 	chief
negotiator 	for 	the 	AFT 	and 	to 	make 	it 	difficult 	for 	her 	to
carry 	out 	her 	meet-and-confer 	obligations.
During 	the 	hearing, 	the 	AFT 	argued 	and 	presented 	evidence
in 	support 	of 	an 	additional 	issue 	- 	i.e., 	that, 	during 	the 	Unit
18 	election 	campaign, 	the 	University 	undertook, 	and
subsequently 	aborted 	its 	efforts, 	to 	remove 	three 	full-time
equivalents 	(FTE's) 	from 	the 	Speech 	Department, 	as 	part 	of 	a
unilateral 	effort 	to 	eliminate 	the 	jobs 	of 	all 	the 	Unit 	18
members 	in 	that 	department. 	Both 	parties 	presented 	extensive
evidence 	on 	this 	question. 	The AFT 	now 	argues 	that, 	because
the 	University 	has 	failed 	to 	raise 	the 	statute 	of 	limitations
5

as 	a 	defense, 	it 	should 	be 	found 	that 	the 	Respondent 	committed
an 	unlawful 	unilateral 	change 	and 	it 	discriminated 	against, 	and
interfered 	with 	the 	rights 	of, 	employees 	who 	were 	supporting
AFT 	in 	its 	organizational 	efforts. 	This 	issue 	will 	be 	dealt
with 	further 	below.
III. 	FACTS
A. 	Background
The 	facts 	underlying 	the 	above 	disputes 	relate 	almost
exclusively 	to 	the 	University 	of 	California's 	Los 	Angeles
campus 	(UCLA). 	That 	campus 	is 	organizationally 	comprised 	of
two 	colleges 	and 	several 	schools 	(e.g., 	the 	School 	of 	Law,
School 	of 	Social 	Welfare, 	School 	of 	Medicine, 	etc). 	By 	far 	the
larger 	college 	is 	the 	College 	of 	Letters 	and 	Science, 	which 	is
the 	primary 	focus 	of 	this 	proceeding 4 . 	That 	college 	is 	the
primary 	academic 	unit 	for 	educating 	UCLA's 	undergraduates 	and
has 	the 	most 	faculty 	and 	students.
The 	current 	chief 	administrative 	officer 	of 	the 	College 	of
Letters 	and 	Science 	(hereafter 	L&S) 	is 	Raymond 	Orbach, 	bearing
the 	title 	of 	Provost. 	Prior 	to 	Orbach's 	appointment 	to 	the
position 	effective 	July 	1982, 	the 	chief 	administrative 	officer
of 	the 	College 	of 	L&S was 	entitled 	ttDean 	of 	the 	College 	of 	L&S"
(Dean Webber). 	Only 	Executive 	Vice-Chancellor 	Bill 	Schaefer,
Vice-Chancellor 	for 	Faculty 	Relations 	Hal 	Horowitz 	and
Chancellor 	Charles 	Young 	rank 	above 	Provost 	Orbach 	within 	the
4The 	other 	is 	the 	College 	of 	Fine 	Arts.
6

UCLA 	administrative 	staff. 	In 	addition 	to 	Orbach, 	the 	Office
of 	the 	Provost 	consists 	of 	Vice-Provost 	Gerald 	Kissler, 	and 	the
various 	divisional 	deans 	- 	including 	Dean 	Herbert 	Morris
(Humanities), 	Dean 	David 	Sears 	(Social 	Sciences), 	and 	Dean 	J.
D. 	O'Connor 	(Life 	Sciences), 	and 	Dean 	Clarence 	Hall 	(Physical
Sciences). 	Each 	divisional 	dean 	reports 	directly 	to 	Orbach.
Each 	of 	the 	deans 	has 	responsibilities 	that 	include
overseeing 	the 	work 	of 	chairpersons 	of 	the 	various 	departments
comprising 	each 	division 	- 	e.g., 	the 	Department 	of 	Speech
within 	the 	Humanities 	division. 	The 	chair 	of 	a 	department 	or
program 	(e.g., 	Communications 	Studies 	Program) 	is 	the 	immediate
administrative 	officer 	between 	rank-and-file 	faculty 	and 	the
administration.
Prior 	to 	1970-71, 	the 	Speech 	Department 	included
undergraduate 	(B.A.) 	and 	graduate 	(M.A. 	and 	Ph.D.) 	programs.
In 	about 	1970-71, 	all 	the 	degree 	programs 	in 	speech were
eliminated 	by 	the 	Academic 	Senate. 	By 	the 	1972-73 	academic
year, 	the 	Speech 	Department's 	course 	offerings 	had 	been 	phased
out, 	and 	only 	Speech 	1 	and 	Speech 	2 	courses 	were 	deliberately
preserved.
In 	the 	wake 	of 	the 	termination 	of 	the 	speech 	degrees, 	an
inter-college 	committee 	was 	created 	to 	find 	alternative 	forms
of 	curriculum 	for 	students 	with 	an 	interest 	in 	communication.
As 	a 	result, 	there 	was 	created 	an 	interdepartmental 	degree
program 	called 	Communication 	Studies 	staffed 	by 	some 	faculty 	in
the 	Speech 	Department 	and 	faculty 	in 	other 	departments.
7

By 	now 	Speech was 	a 	department 	without 	a 	degree 	program,
but 	with 	a 	budget, 	and 	Communication 	Studies 	was 	a 	program
without 	a 	budget 	of 	its 	own, 	but 	offering 	an 	undergraduate
degree. 	In 	part 	because 	of 	these 	circumstances, 	from 	1973-1984
the 	Communication 	Studies 	Program 	(CS 	Program) 	was 	housed 	in
the 	Speech 	Department 	and 	that 	department's 	budget 	was 	used 	to
administer, 	house, 	and 	employ 	the 	speech 	faculty 	and 	the
faculty 	assigned 	to 	the 	CS 	Program.
Paul 	Rosenthal 	served 	as 	the 	chairman 	of 	the 	Speech
Department 	from 	1972-1980, 	and 	again 	in 	1983-1984. 	In 	1973 	he
was 	appointed 	chairman 	of 	the 	CS 	Program 	and 	served 	in 	that
position 	continuously 	until 	1984. 	So, 	for 	a 	long 	period, 	he
simultaneously 	chaired 	both 	entities.
1. 	The 	Academic 	Senate.
Relevant 	to 	the 	issues 	of 	the 	locus 	of 	authority 	for
granting 	and 	negotiating 	released 	time 	and 	to 	the 	issues 	of
alleged 	unilateral 	and 	discriminatory 	elimination 	of
departments 	and 	reorganization 	of 	programs, 	is 	the 	existence 	of
a 	body 	known 	in 	public 	higher 	education 	systems 	as 	the 	Academic
Senate. 	The 	Regents 	of 	the 	University 	of 	California, 	the
highest 	administrative 	body 	within 	the 	system, 	have 	delegated
authority 	over 	courses 	and 	curricula 	to 	the 	Academic 	Senate.
The 	Regents 	have 	delegated 	to 	the 	administration 	(President,
Chancellors, 	etc.) 	authority 	over 	resources 	(e.g., 	personnel,
space, 	etc.).
Only 	the 	Academic 	Senate 	can 	create 	or 	eliminate 	courses,
8

curriculum, 	degree 	programs, 	or 	the 	academic 	content 	of 	degree
programs. 	A principle 	referred 	to 	as 	"shared 	governance"
between 	two 	independent 	bodies 	usually means 	that 	without
administration 	consent 	to 	faculty 	(who 	largely 	comprise 	the
Academic 	Senate), 	the 	Senate 	cannot 	have 	courses 	taught.
Without 	Senate 	approval 	of 	courses, 	the 	administration 	and 	the
faculty 	cannot 	fulfill 	the 	University's 	teaching 	mission.
Disestablishment 	is 	a 	term 	used 	to 	describe 	the 	termination
of 	either 	a 	program 	(i.e., 	a 	degree 	program) 	or 	a 	unit 	(i.e.,
department, 	a 	school, 	a 	college, 	or 	any 	of 	the 	academic 	units
that 	constitute 	the 	academic 	administrative 	structure 	of 	the
University). 	The 	final 	authority with 	respect 	to 	the
disestablishment 	of 	a 	degree 	program 	or 	the 	elimination 	of 	a
course 	is 	the 	Senate's, 	inasmuch 	as 	it 	involves 	control 	over
curricular 	matters. 	The 	final 	authority 	with 	respect 	to 	the
disestablishment 	of 	an 	administrative 	unit 	rests 	with 	the
administration.
Because 	the 	practical 	effects 	of 	disestablishing 	a
department 	are 	to 	simultaneously 	disestablish 	programs 	and/or
courses 	housed 	in 	a 	department, 	the 	"shared 	governance"
principle 	and 	presidential 	guidelines 	require 	that 	specific,
codified 	procedures 	be 	followed 	prior 	to 	effectuating 	a
disestablishment. 	These 	procedures 	include 	broad 	and 	extensive
consultations 	between 	the 	two 	entities 	prior 	to 	the 	action.
For 	example, 	if 	the 	Senate 	decided 	it 	wanted 	to 	eliminate 	a
degree 	program, 	it 	is 	obliged 	to 	first 	consult 	with 	the
9

administration 	regarding 	the 	effects 	of 	that 	action 	on 	the
faculty, 	students, 	and 	resources. 	Conversely, 	if 	the
administration 	wanted 	to 	eliminate 	a 	degree 	program, 	or 	a 	unit,
it 	must 	engage 	in 	similar 	consultations 	with 	the 	Senate. 	There
is 	a 	systemwide 	mechanism which 	sets 	forth 	disestablishment
procedures, 	with 	more 	detailed 	procedures 	adopted 	by 	each
campus.
2 • 	The 	Speech 	Department 	and 	Communication 	Studies
Program 	Faculty
Since 	the 	phasing 	out 	of 	the 	degree 	programs 	in 	speech 	and
the 	decision 	to 	retain 	Speech 	1 	and 	2 	courses, 	the 	teaching 	of
those 	courses 	has 	been 	done 	primarily 	by 	lecturers. 	Two 	of 	the
remaining 	three 	regular 	faculty 	members 	were 	assigned 	to 	the 	cs
Program. 	By 	1980-81, 	the 	only 	regular 	faculty 	member 	teaching
courses 	in 	speech was 	Waldo 	Phelps, 	who 	taught 	one 	or 	two
courses 	of 	Speech 	1. 	The 	other 	22-24 	speech 	sections 	were
taught 	by 	lecturers.
As 	of 	the 	1983-84 	academic 	year, 	the 	Speech 	Department 	had
an 	allocation 	of 	the 	equivalent 	of 	three 	full-time 	faculty
positions 	(3.0 	FTE's) 	which 	were 	filled 	by 	approximately 	five
people 	on 	a 	percentage-time 	basis 	- 	some 	had 	.5 	FTE, 	2/3 	FTE,
etc. 	Four 	of 	these 	lecturers, 	Sonia 	Packer, 	Steven 	Doyle,
Jeannie 	Dye 	and 	Marde 	Gregory, 	had 	been 	members 	of 	the
department 	for 	at 	least 	6-8 	years. 	In 	the 	fall 	of 	1983, 	a
10

fifth 	lecturer, 	Paul 	Von 	Blum was 	hired 	after 	having 	been 	a
lecturer 	at 	UC 	Berkeley 	for 	almost 	11 	years. 5
Since 	the 	1983-84 	academic 	year, 	Rosenthal, 	Patrice 	French,
and 	Neil 	Malamuth 	have 	been 	the 	only 	full-time 	Senate 	faculty
assigned 	to 	the 	CS 	Program. 6 Like 	the 	Speech 	Department, 	the
CS 	Program 	has 	relied 	heavily 	on 	lecturers 	to 	teach 	courses.
Therefore, 	the 	program was 	allocated 	FTE 	from 	which 	to 	support
teaching 	of 	CS 	courses 	by 	four 	lecturers. 	Those 	lecturers, 	as
of 	the 	1984-85 	academic 	year, 	were 	Janet 	Weathers 	(,5 	FTE),
Diana 	Meehan 	(.5 	FTE), 	Geoffrey 	Cowan 	(.5 	FTE), 	and 	Jeffrey
Co 1 e 	( 1. 0 	FTE) .
Marde 	Gregory, 	who 	normally 	had 	a 	.5 	FTE 	appointment 	in
Speech, 	was 	simultaneously 	the 	Student 	Affairs 	Officer 	(SAO) 	in
the 	CS 	Program. 	Although 	the 	SAO 	position 	was 	a 	part-time
(25%) 	staff, 	not 	a 	teaching, 	position, 	she 	had 	traditionally
taught 	a 	CS 	course 	(CS 	185) 	by 	special 	arrangement 	between 	her
and 	former 	chair, 	Paul 	Rosenthal. 	Teaching 	the 	CS 	course 	was
thereby 	considered 	part 	of 	her 	duties 	as 	an 	SAO 	within 	the 	cs
Program.
B. 	Unit 	18
On 	about 	March 	6, 	1984, 	the 	PERB 	designated, 	for 	purposes
5At 	the 	time 	of 	the 	hearing 	there 	were 	no 	speech 	courses
being 	taught 	by 	regular 	faculty.
6The 	CSP 	has 	no 	ladder 	FTE 	of 	its 	own. 	Its 	ladder-rank
faculty 	are 	housed 	in 	other 	departments 	- 	Patrice 	French 	in
Psychology, 	Neil 	Malamuth 	and 	Rosenthal 	in 	Speech. 	Its
lecturers 	are 	supported 	by 	"soft 	money 	FTEs."
11

of 	collective 	bargaining 	under 	HEERA, 	as 	Unit 	18, 	a 	category 	of
University 	employees 	occupying 	titles 	such 	as 	visiting
lecturers, 	"Associate 	in _______ ", 	senior 	lecturer,
visiting 	senior 	lecturer, 	coordinator 	of 	field 	work, 	etc.
Systemwide, 	the 	unit 	consisted 	of 	roughly 	2,000 	employees. 	Of
these, 	approximately 	450 	were 	employed 	at 	UCLA. 7 The 	record
does 	not 	reflect 	the 	relative 	numbers 	or 	concentrations 	of 	Unit
18 	members 	in 	departments 	and 	programs 	at 	UCLA 	outside 	of 	the
Speech 	Department 	and 	CS 	Program.
Activity 	related 	to 	union 	representation 	began 	to 	occur 	at
the 	University 	of 	California 	years 	prior 	to 	the 	acitivity 	in
question 	in 	this 	case. 	For 	example, 	the 	campaign 	for 	and
against 	representation 	of 	the 	Senate 	faculty 	took 	place 	in 	late
1980 	and 	in 	1981, 	culminating 	in 	a 	runoff 	election where 	the
employees 	voted 	not 	to 	be 	exclusively 	represented 	by 	an
organization. 	Elections 	for 	tens 	of 	thousands 	of 	other
University 	employees, 	distributed 	among 	some 	14 	other
bargaining 	units, 	were 	scheduled 	throughout 	late 	spring 	and
summer 	of 	1983.
By 	September 	1983, 	while 	anticipating 	that 	elections 	for
Unit 	18 	would 	be 	occurring 	in 	the 	late 	fall 	of 	that 	year, 	or
7The 	testimony 	and 	documentary 	evidence 	conflicts
somewhat 	on 	the 	actual 	numbers. 	Marde 	Gregory 	testified 	that,
at 	the 	time 	of 	the 	Unit 	18 	election, 	there 	were 	2,536 	unit
members, 	of 	whom 	550 	were 	employed 	at 	UCLA. 	The 	tally 	of
ballots 	indicates 	that 	there 	were 	1,877 	eligible 	voters 	in 	the
Unit. 	The 	difference 	in the 	numbers 	is 	not 	significant 	to 	the
determinations 	made 	herein. 	· 	· 	'
12

early winter 	1984, 	the 	University was 	preparing 	for 	collective
bargaining 	negotiations 	with 	tens 	of 	thousands 	of 	staff
employees 	who 	had 	already 	voted 	for 	representation. 	This
preparation 	included 	consultations 	with 	managerial 	personnel 	on
the 	various 	campuses 	in 	order 	to 	develop 	bargaining 	positions.
Although 	there 	is 	reason 	to 	believe 	that 	the 	UCLA
administration 	was 	aware 	as 	early 	as 	May 	1983, 	that 	Unit 	18
elections 	would 	be 	held 	sometime 	that 	fall, 	there 	is 	scant
evidence 	that 	any 	overt 	organizing 	activity 	occurred 	at 	that
campus 	until 	the 	late 	fall 	of 	1983.
Marde 	Gregory, 	who 	would 	later 	become 	UCAFT's 	chief
negotiator, 	testified 	that 	her 	first 	attendance 	at 	a 	UCAFT
organizing 	meeting 	occurred 	in 	late 	November 	or 	early 	December
1983, 	when 	union 	official 	Howard 	Kimmeldorf 	visited 	the 	campus
to 	discuss 	matters 	of 	importance 	to 	the 	speech 	lecturers.
According 	to 	Gregory, 	about 	eight 	people 	attended. 	At 	that
time, 	neither 	she 	nor 	any 	of 	the 	lecturers 	in 	Speech 	and
Communications 	Studies 	had 	yet 	become 	members 	of 	UCAFT.
This 	is 	consistent 	with 	testimony 	and 	documentary 	evidence
suggesting 	that 	the 	University's 	responses 	to 	UCAFT's 	efforts
began 	to 	manifest 	themselves 	in 	November 	and 	December.
Specifically, 	administration 	officials 	Carol 	Hartzog, 	Ray
Orbach, 	Harold 	(Hal) 	Horowitz, 	and 	Gerald 	Kissler, 	testified
that 	during 	mid-November 	1983, 	meetings 	among 	UCLA
administrators 	took 	place 	at 	which 	the 	upcoming 	election 	was
discussed. 	The 	specific 	topics 	discussed 	related 	to
13

permissible 	election-related 	conduct 	under 	HEERA, 	appropriate
management 	positions 	and 	responses 	during 	the 	campaign, 	what
subjects 	would 	be 	within 	the 	scope 	of 	bargaining, 	etc. 	These
topics 	became 	regular 	items 	of 	discussion 	during 	weekly
meetings 	called 	the 	"Chancellor's 	Coffee 	Hour." 	Additionally,
the 	status 	of 	the 	organizing 	drive 	was 	discussed 	at 	weekly
dean's 	meetings 	convened 	by Orbach.
Provost 	Orbach, 	who 	had 	overtly 	opposed 	the 	unionization
effort 	among 	Senate 	faculty 	during 	1980-81, 	wrote 	to 	Unit 	18
members 	in 	the 	College 	of 	L&S 	on 	November 	18, 	1983, 	urging 	them
to 	vote 	against 	exclusive 	representation. 	He 	issued 	a 	second
letter 	on 	December 	8 	regarding 	the 	election, 	inviting 	unit
members 	to 	attend 	a 	meeting 	on 	December 	15 	to 	discuss 	the
issues 	regarding 	what 	a 	vote 	for 	or 	against 	representation
might 	mean 	to 	the 	lecturers.
Such 	a 	meeting 	occurred, 	but 	was 	poorly 	attended. 	Only
seven 	lecturers 	from 	the 	College 	of 	L&S 	were 	present, 	among
them Marde 	Gregory 	and 	Jeannie 	Dye. 	Consequently, 	this 	was 	the
only 	such meeting 	Orbach 	held.
On 	about 	December 	14, 	1983, 	Hartzog 	issued 	a 	memorandum 	to
the 	Writing 	Program 	faculty 	urging 	a 	"no" 	vote 	in 	the 	upcoming
election. 	A meeting 	was 	scheduled 	for 	the 	same 	purpose 	as 	the
one 	held 	by Orbach. 	However, 	no 	one 	attended.
A simlar 	letter 	urging 	a 	"no" 	vote 	was 	issued 	to 	the
Writing 	Program 	lecturers 	by Vice-Chancellor 	Bill 	Schaefer
during 	December. 	Although 	similar 	statements 	may 	have 	been
14

issued 	by 	deans 	to 	their 	respective 	department 	members, 	there
is 	no 	evidence 	of 	any 	other 	specific 	attempts. 	And, 	although
general 	reference 	was 	made 	to 	other 	attempts 	by 	administrators
to 	arrange 	meetings 	in 	other 	units 	(i.e., 	School 	of 	Dentistry),
the 	aforementioned 	incidents 	appear 	to 	comprise 	the 	bulk 	of
UCLA's 	overt 	efforts 	to 	dissuade 	lecturers 	from 	voting 	for 	the
UCAFT.
There 	was 	little 	evidence 	regarding 	the 	pro-union
campaign. 	Paul 	Rosenthal 	had 	a 	general 	recollection 	of 	seeing
election 	materials 	posted 	at 	the 	campus. 	Neil 	Malamuth, 	then 	a
regular 	faculty 	member, 	vaguely 	recalled 	discussions 	among
others 	regarding 	whether 	or 	not 	exclusive 	representation 	was 	a
good 	idea 	or 	not. 	Marde 	Gregory 	testified 	about 	only 	one
organizing 	meeting 	she 	attended 	prior 	to 	the 	ballots 	being
issued 	by 	PERB. 	That 	meeting 	appeared 	to 	have 	been 	convened 	as
a 	response 	to 	an 	effort 	by Orbach 	and 	Morris 	to 	reallocate
three 	FTE's 	from 	the 	Speech 	Department 	to 	other 	units 	within
the 	Division 	of 	Humanities, 	as 	discussed 	in 	more 	detail 	below.
C. 	The 	Removal 	of 	Three 	Speech 	FTE's
In 	support 	of 	its 	theory 	of 	retaliation 	and 	discrimination
against 	advocates 	of 	unionization 	and 	lecturers, 	the 	UCAFT 	has
argued 	that 	the 	University's 	efforts 	to 	remove 	three 	FTE's 	from
the 	Speech 	Department 	during 	the 	fall 	of 	1983 	were 	part 	of 	that
anti-union 	scheme. 	During 	the 	summer 	of 	1983, 	Ray 	Orbach, 	Pat
Topper 	(Director 	of 	the 	Budget 	in 	the 	College 	of 	L&S), 	and
Gerald 	Kissler 	met 	on 	several 	occasions 	to 	discuss 	the 	College
15

budget. 	Of 	major 	concern 	was 	the 	increasing 	enrollment
pressure 	in 	areas 	such 	as 	English 	and 	economics.
The 	number 	of 	English 	majors 	and 	the 	enrollment 	in 	English
classes 	had 	been 	increasing 	over 	the 	previous 	three 	to 	four
years. 	According 	to 	Orbach, 	English 	4, 	a 	literature-based 	core
course, 	was 	so 	oversubscribed 	that 	students 	who 	would 	normally
have 	taken 	it 	in 	their 	freshman 	year 	were 	having 	to 	take 	it 	at
the 	sophomore 	or 	junior 	level. 	English 	4 	is 	the 	first 	course
beyond 	the 	minimum 	required 	courses 	to 	satisfy English 	major
requirements 	and 	is 	offered 	through 	the 	Writing 	Program.
According 	to 	reports 	considered 	by 	Kissler 	and 	Orbach, 	there
were 	24-30 	unstaffed 	sections 	of 	English 	4 	in 	1983. 	The
situation 	had 	been 	exacerbated 	by 	an 	Economics 	Department
decision 	in 	1982 	or 	1983 	to 	make 	English 	4 	one 	of 	its 	required
courses. 	Consequently, 	enrollment 	took 	a 	big 	jump. 8
Speech 	1 	and 	2, 	however, 	were 	also 	in 	heavy 	demand 	and
historically 	oversubscribed. 	Nevertheless, 	Kissler, 	Morris 	andt
Orbach 	made 	a 	decision 	that 	English 	4 	was 	more 	important
academically 	than 	Speech 	1 	and 	2 	and 	that 	the 	loss 	to 	the
academic 	University 	from 	cutting 	the 	Speech 	courses 	would 	be
minimal.
There was 	conflicting 	testimony 	between 	University
8There 	was 	a 	great 	deal 	of 	testimony 	regarding 	other
factors 	that 	caused 	enrollment 	pressures 	in 	English 	4 	and 	other
courses. 	However, 	it 	is 	clear 	that 	the 	Economics 	Department's
decision 	to 	include 	the 	course 	as 	one 	of 	its' 	requirements 	was
the 	primary 	factor 	influencing 	Otbach's 	later 	decisidh 	to
remove 	the 	FTE's.
16

witnesses 	and 	UCAFT 	witnesses 	over 	whether 	Speech 	1 	and 	2 	and
English 	4 were 	required 	for 	any 	major. 	In 	support 	of 	its
position 	that 	the 	purported 	justifications 	for 	removing 	the
speech 	FTE's 	were 	a 	pretext 	for 	the 	real 	reason 	(i.e.,
retaliation 	against 	lecturers 	and 	diminuation 	of 	the 	unit), 	the
UCAFT 	offered 	testimony 	that 	the 	targeted 	speech 	courses
satisfied 	requirements 	in 	some 	majors 	and/or 	that 	Speech 	1 	is
used 	as 	an 	important 	"option" 	in 	the 	business 	designation
series, 	which 	can 	"accompany" 	a 	major 	curriculum 	at 	UCLA.
University 	witnesses 	uniformly 	testified 	that 	Speech 	1 	and 	2
were 	not 	required 	for 	any 	major 	and 	were 	exclusively
electives. 	With 	respect 	to 	English 	4, 	there 	was 	testimony 	from
Marde 	Gregory 	that 	it 	was 	not 	a 	requirement 	for 	economics
majors 	in 	1983-84, 	but 	was 	an 	option 	for 	an 	English 	or 	writing
requirement 	in 	preparation 	for 	the 	economics 	major. 	Therefore,
a 	student 	might 	take 	English 	30 	or 	two 	English 	100-W
writing-intensive 	courses 	to 	satisfy 	the 	economics
requirement. 	The 	fact 	remains, 	however, 	that 	English 	4 	was 	one
of 	the 	courses 	that 	the 	Economics 	Department 	decided 	would
fulfill 	its 	writing 	requirement.
After 	deliberating 	with 	Kissler, 	Morris 	and 	Topper, 	Provost
Orbach 	decided, 	on 	about 	October 	7, 	1983, 	to 	recommend 	the
removal 	of 	all 	three 	FTE's 	from 	Speech 	and 	to 	allocate 	them 	to
English 	via 	the 	Writing 	Program. 	According 	to 	Pat 	Topper's
testimony, 	Orbach's 	yearly 	allocation 	letter 	to 	the 	divisions
reflected 	the 	removal 	of 	those 	FTE's 	(Exh. 	XX). 	Although
17

Orbach 	attempted 	to 	describe 	his 	actions 	in 	furtherance 	of 	the
removal 	of 	the 	speech 	FTE's 	as 	a 	tentative 	proposal, 	I 	am
satisfied 	from 	the 	testimony 	of 	Topper, 	Rosenthal, 	and 	Gerald
Kissler 	that 	the 	decision 	to 	remove 	the 	FTE's 	was 	firm 	as 	of
November 	17 	or 	18, 	1983.
When 	they met 	on 	the 	above 	date, 	Kissler 	informed 	Rosenthal
that 	the 	Speech 	1 	courses 	were 	being 	terminated 	by 	the
elimination 	of 	the 	three 	FTE's 	that 	had 	been 	supporting 	those
courses. 	When 	asked 	why 	this 	was 	being 	done, 	Kissler 	simply
responded 	that 	the 	resources 	were 	needed 	elsewhere 	in 	the
College. 	Kissler 	intentionally declined 	to 	state 	where 	the
resources 	would 	be 	used, 	in 	keeping 	with 	his 	practice 	of 	never
discussing 	with 	a 	particular 	chair 	where 	reallocated 	resources
would 	go 	in 	order 	to 	avoid 	inevitable 	bickering 	among
chairpersons 	over 	the 	importance 	of 	one 	department 	versus
another. 	Instead, 	Kissler 	simply 	told 	Rosenthal 	that 	the 	FTE's
would 	be 	used 	to 	alleviate 	enrollment 	pressures 	in 	other 	areas
Rosenthal 	tried 	unsuccessfully 	to 	persuade 	Kissler 	that 	the
speech 	courses 	were 	in 	heavy 	demand, 	that 	waiting 	lists 	for
them were 	at 	least 	as 	large 	as 	the 	classes 	themselves. 	Kissler
told 	Rosenthal 	that, 	if 	he 	wanted 	to 	do 	something 	about 	the 	FTE
removal, 	he 	had 	better 	write 	to 	Morris 	quickly.
Believing 	the 	removal 	decision 	to 	be 	violative 	of 	the
shared 	governance 	principle 	- 	it 	amounted 	to 	the 	eradication 	of
a 	complete 	area 	of 	instruction 	not 	offered 	anywhere 	else 	on 	the
campus 	and 	therefore 	involved 	an 	extreme 	change 	in 	curriculum
18

which 	required 	Senate 	consultation 	and 	approval~ 	Rosenthal
began 	to 	organize 	opposition 	to 	the 	decision.
During 	the 	next 	3-4 	weeks, 	he 	met 	with 	many 	of 	the
non-Senate 	faculty 	who 	could 	have 	lost 	their 	jobs 	as 	a 	result
of 	the 	planned 	removal 	of 	the 	FTE's, 	and 	mobilized 	opposition
to 	Orbach's 	and 	Morris' 	decision. 9 Letters 	and 	calls 	from
legislators, 	alumni, 	faculty, 	and 	students, 	in 	protest 	of 	the
move, 	flooded 	the 	University. 	The 	school 	newspaper, 	The 	Daily
Bruin, 	publicized 	the 	event 	as 	front 	page 	news.
Even 	Vice-Chancellor 	Schaefer 	opposed 	the 	elimination 	of
the 	speech 	courses, 	and 	indicated, 	to 	Kissler's 	surprise, 	that
he 	felt 	the 	courses 	were 	a 	valuable 	resource 	to 	the 	University
and 	should 	be 	retained. 	The 	opposition was 	so 	pronounced 	that
the 	decision 	to 	remove 	the 	FTE's 	was 	withdrawn 	prior 	to
mid-December 	1983.
What 	was 	ultimately 	done 	to 	solve 	the 	overenrollment
problems 	in 	English 	- 	something 	Orbach 	believed 	was
academically wrong 	- 	was 	to 	increase 	the 	size 	of 	upper 	division
courses 	in 	that 	subject, 	refrain 	from 	filling 	a 	vacancy 	in 	the
Geography Department 	due 	to 	retirement, 	and 	to 	use 	those
savings 	to 	hire 	a 	lecturer 	in 	English. 	The 	net 	result 	was 	a
9Although 	Orbach 	had 	made 	his 	decision, 	one 	in which
Morris 	concurred, 	Morris 	had 	the 	final 	say 	as 	to 	where 	in 	his
division 	the 	FTE's 	would 	be 	used. 	The 	intent 	had 	been 	to
utilize 	the 	resources 	to 	alleviate 	overenrollment 	in 	English,
though 	Morris 	could 	theoretically 	have 	decided 	to 	distribute
those 	FTE's 	elsewhere., 	The 	removaL would 	not 	have 	been
effective 	until 	the 	1984-85 	academic 	year. 	,,,,,
19

small 	increase 	in 	the 	resources 	for 	English, 	and 	an 	increase 	in
the 	class 	size 	of 	upper 	division 	English 	courses.
The 	UCAFT's 	visibility 	in 	the 	whole 	scenario 	was 	all 	but
non-existent. 	The 	only 	evidence 	of 	its 	involvement 	was
Gregory's 	testimony 	that 	the 	first 	organizing 	meeting 	held 	at
the 	UCLA 	campus 	was 	initiated 	at 	least 	as 	a 	partial 	response 	to
the 	planned 	FTE 	remova1. 10 One 	professor 	had 	written 	a
letter 	to 	Orbach 	in 	late 	November 	accusing 	him 	of 	attempting 	to
eliminate 	some 	lecturers 	"before 	their 	terms 	and 	conditions 	of
employment 	could 	possibly 	be 	an 	issue 	in 	an 	adversary
bargaining 	relationship." 	Orbach 	quickly 	responded 	in 	writing
to 	explain 	that 	his 	decision 	was 	strictly 	academically 	based.
During 	Orbach's 	December 	15 	campaign 	speech 	to 	the
lecturers, 	he 	had 	not 	mentioned 	the 	FTE 	controversy 	until 	one
lecturer 	asked 	him during 	a 	question-and-answer 	period 	about
the 	dispute. 	Orbach 	explained 	that 	the 	proposal 	to 	remove 	the
FTE's 	had 	been withdrawn, .and 	that 	such withdrawal 	should 	not ..
be 	interpreted 	as 	a 	promise 	in 	light 	of 	the 	upcoming 	election.
The 	evidence 	indicates 	that 	Orbach 	blamed 	Rosenthal 	for 	the
''flap" 	over 	the 	FTE 	issue 	and 	with 	forcing 	him 	and 	Morris 	to
reverse 	their 	earlier 	decision. 	The 	articles 	in 	the 	Daily
l0Gregory 	testified 	that 	the 	AFT 	was 	writing 	letters 	to
the 	Provost 	in 	protest 	of 	the 	action. 	No 	letters 	were
produced. 	The 	unidentified 	authors 	of 	such 	letters 	were 	not
called 	to 	testify 	about 	them. 	None 	of 	the 	administrators 	who
were 	asked 	about 	the 	issue 	recalled 	receiving 	such 	letters 	from
AFT. 	Gregory's 	uncorroborated 	hearsay 	testimony 	regarding 	such
letters 	cannot 	be 	credited.
20

Bruin 	focused 	on 	academic 	considerations, 	and 	failed 	to 	make
any 	reference 	to 	a 	possible 	connection 	between 	the 	FTE 	issue
and 	the 	upcoming 	election. 	The 	overwhelming 	correspondence 	and
telephone 	calls 	related 	to 	subjects 	other 	than 	the 	election 	or
the 	AFT. 11 There 	is 	no 	credible 	evidence 	to 	refute 	the
testimony 	that, 	when 	Orbach 	met 	with 	Kissler 	in 	the 	summer 	of
1983 	to 	discuss 	the 	overenrollment 	problems 	in 	English, 	he 	was
unaware 	of 	the 	AFT 	election.
D. 	The 	Unit 	18 	Election
The 	Unit 	18 	election 	proceeded 	after 	the 	conclusion 	of 	the
speech 	FTE 	controversy. 	Ballots 	containing 	the 	choices 	of
"UCAFT" 	and 	"No 	Representation" 	were 	mailed 	by 	the 	PERB
beginning 	December 	30, 	1983 	to 	all 	eligible 	voters. 	Each 	was
instructed 	to 	mail 	the 	completed 	ballots 	early 	enough 	to 	be
received 	by 	PERB 	no 	later 	than 	January 	31, 	1984. 	The 	tally 	of
ballots 	conducted 	on 	February 	3, 	1984 	resulted 	in 	707 	votes 	in
favor 	of 	UCAFT, 	447 	votes~for 	"No 	Representation" 	and 	70
challenged 	ballots. 	The 	UCAFT 	was 	officially 	certified 	as 	the
exclusive 	representative 	of 	the 	unit 	on March 	6, 	1984. 12
ll1ndeed, 	although 	warned 	by 	fellow 	administrators 	that
his 	proposed 	action 	to 	remove 	the 	FTE's 	might 	have 	the
inevitable 	effect 	of 	causing 	the 	lecturers 	to 	give 	their
support 	to 	AFT 	in 	the 	upcoming 	election 	for 	fear 	of 	losing
their 	jobs, 	Orbach 	nevertheless 	proceeded with 	his 	decision 	in
the 	belief 	that 	it 	was 	the 	only 	academically 	sound 	option,
union 	issues 	notwithstanding.
12official 	notice 	is 	taken 	of 	PERB's 	representation 	File
#SF-HR-18.
21

E. 	The 	"Sears" 	Reorganization 	Plan
The 	UCAFT 	has 	argued 	that 	its 	efforts 	to 	secure 	collective
bargaining 	rights 	for 	lecturers 	touched 	off 	a 	furor 	among
administration 	officials 	who 	later 	embarked 	on 	a 	coordinated
campaign 	to 	diminish 	the 	unit 	by 	unilaterally 	eliminating
positions 	in 	the 	Speech 	Department 	and 	CS 	Program. 	As 	part 	of
that 	conspiracy, 	it 	is 	asserted 	the 	University 	concocted 	and
began 	implementing 	a 	plan 	to 	reorganize 	the 	CS 	Program which
had 	the 	foreseeable 	effect 	of 	eliminating 	lecturer 	positions
and 	terminating 	employment 	of 	unit 	members. 	In 	support 	of 	its
theory, 	the UCAFT 	offered 	testimony 	that 	the 	Speech 	Department
and 	CS 	Program 	are 	characterized 	by 	a 	heavy 	concentration 	of
lecturers 	who 	have 	been 	teaching 	at 	UCLA 	for 	an 	unusually 	long
period 	of 	time, 	that 	they 	house 	the 	Union's 	chief 	negotiator
Marde 	Gregory, 	and 	that 	the 	Speech 	Department's 	lecturers 	are
100% 	AFT 	members. 	The 	University 	has 	argued 	that 	the 	efforts
to 	disestablish 	the 	Speech 	Department 	began 	in 	about 	1970 	or
1971 	when 	the 	degree 	programs 	were 	first 	eliminated, 	that 	the
plan 	to 	reorganize 	the 	CS 	Program 	and 	Speech 	Department 	were
part 	of 	a 	gradual 	plan 	preceding 	the 	collective 	bargaining
election 	and 	unrelated 	to 	it.
Unrefuted 	testimony 	reflects 	that 	administration 	officials
knew 	that 	one 	election 	campaign 	issue, 	and 	perhaps 	the 	most
important, 	was 	the 	UCAFT's 	goal 	to 	obtain 	security 	of
employment 	for 	the 	lecturers. 	Most 	Unit 	18 	members 	held 	job
titles 	that 	did 	not 	come 	with, 	nor 	lead 	to, 	security 	of
22

employment. 	Instead, 	they were 	appointed 	for 	one-year 	terms
with 	no 	promise 	that 	their 	contracts 	would 	be 	renewed 	for 	the
following 	year, 	and 	without 	a 	possibility 	of 	obtaining 	tenure.
One 	obstacle 	to 	UCAFT's 	announced 	goal 	was 	the 	University's
so-called 	"eight-year 	rule.'' 	The 	rule 	reflected 	an 	established
policy 	that 	non-Senate 	faculty 	could 	not 	occupy 	positions 	in
excess 	of 	50% 	time 	for 	more 	than 	eight 	years. 	Although 	the
rule's 	arbitrary 	limit 	was 	eight 	years, 	some 	departments 	within
the 	campus 	had 	used 	other, 	shorter, 	terms. 	At 	least 	within 	the
Speech 	Department, 	and 	to 	some 	extent 	in 	the 	CS 	Program, 	most
lecturers 	were 	near 	the 	limit 	at 	more 	than 	50% 	time, 	or 	beyond
the 	eight 	years 	but 	with 	less 	than 	50% 	appointments 	at 	the 	time
negotiations 	got 	underway 	in 	the 	Spring 	of 	1984. 	Therefore,
one 	of 	the 	Union's 	announced 	aims 	was 	to 	negotiate 	the
abolition 	of 	the 	eight-year 	limit. 	The 	UCAFT 	apparently
concludes 	that, 	by 	unilaterally 	implementing 	a 	plan 	("Sears
Plan") 	that 	would 	eliminate 	a 	block 	of 	long-time 	lecturers,
unit 	support 	for 	UCAFT's 	bargaining 	position would 	be
undermined.
As 	noted 	earlier, 	the 	CS 	Program was 	created 	almost
simultaneously with 	the 	termination 	of 	the 	degree 	programs 	in
speech. 	There 	was 	a 	conscious 	decision 	by 	the 	administration
and 	the 	Academic 	Senate 	to 	retain 	the 	courses 	of 	Speech 	1 	and
Speech 	2. 	However, 	within 	about 	three 	years 	following 	its
creation, 	the 	continued 	existence 	of 	the 	CS 	Program was 	placed
in 	jeopardy 	by 	Dean 	Burke, 	who 	succeeded 	Dean 	Trueblood 	as 	the
23

Dean 	of 	the 	College 	of 	L&S 	in 	1974. 	Burke ~laced 	the 	program
under 	review 	by 	two 	committees 	(one 	of 	which 	criticized 	the
academic 	quality 	of 	the 	program), 	attempted 	unsuccessfully 	(due
in 	part 	to 	Rosenthal's 	opposition) 	to 	eliminate 	the 	program,
and 	removed 	two 	FTE's 	that 	had 	been 	used 	to 	its 	benefit.
Rosenthal, 	then 	chair 	of 	the 	CS 	Program, 	vigorously 	opposed
each 	attempt 	to 	diminish 	the 	program, 	and 	became 	what 	was
described 	as 	a 	"thorn 	in 	the 	side" 	of 	Burke.
Eventually, 	the 	Academic 	Senate, 	through 	its 	Committee 	on
Undergraduate 	Courses 	and 	Curricula, 	also 	reviewed 	the 	program
(1977 	and 	1978) 	and 	recommended 	its 	continuation 	and
development 	toward 	department 	status. 	Burke 	resigned 	at 	about
that 	time, 	then 	Dean Webber 	took 	over 	and 	restored 	the 	two
FTE's 	that 	had 	been 	removed.
After 	the 	restoration 	of 	the 	FTE's, 	Rosenthal 	attempted 	to
fill 	them with 	full-time 	faculty. 	One 	of 	those 	FTE's 	was
filled 	as 	a 	result 	of 	Rosenthal's 	recruitment. of 	Professor 	Nei
Malamuth, 	hired 	as 	a 	ladder 	faculty 	member 	in 	1982 	as 	a 	CS
professor. 	Malamuth 	accepted 	the 	job 	in 	reliance 	upon
representations 	that 	the 	CS 	Program would 	expand 	and 	develop
graduate 	programs 	which 	would 	enable 	him 	to 	interact 	with
graduate 	students 	and 	allow 	him 	to 	continue 	his 	research
efforts. 	By 	early 	1982, 	Rosenthal 	had 	not 	yet 	filled 	the
second 	FTE.
Ray 	Orbach was 	then 	appointed 	as 	Provost 	of 	the 	College 	in
July 	1982. 	Noting 	the 	failure 	to 	fill 	or 	utilize 	the 	fourth
24

FTE 	for 	some 	three 	years, 	one 	of 	Orbach's 	immediate 	actions 	in
the 	summer 	of 	1982 	was 	to 	withdraw 	that 	FTE 	from 	Speech 	and
CS. 	According 	to 	Rosenthal 	"we 	were 	now 	reverting 	back 	to 	what
I 	considered 	to 	be 	an 	anti-Comm 	Studies 	policy 	by 	a 	new
provost."
With 	respect 	to 	the 	Speech 	Department, 	Rosenthal 	testified
that, 	when 	he 	became 	chairman 	in 	1972-73, 	there 	were 	10 	regular
FTE's 	and 	a 	variety 	of 	courses. 	Since 	then, 	as 	regular 	faculty
left 	(through 	retirement 	or 	resignation), 	they were 	not
replaced, 	and 	the 	courses 	they 	used 	to 	teach 	ceased 	to 	be
offered. 	The 	decline 	of 	the 	Speech 	Department 	was, 	in
Rosenthal's 	view, 	pursuant 	to 	a 	plan 	adopted 	by 	the
administration 	back 	just 	before 	he 	became 	chair 	and 	which 	the
administration 	has 	continued 	to 	adhere 	to 	in 	spite 	of 	his
efforts.
The 	"Sears 	Plan" 	is 	a 	misnomer 	implying 	that 	there 	was 	one,
all-inclusive 	scheme 	developed 	solely 	by 	Dean 	David 	Sears. 	In
reality, 	the 	plan 	was 	an 	amalgam 	of 	ideas 	and 	goals 	of 	various
individuals 	including 	Sears 	(the 	major 	proponent), 	Orbach,
Kissler, 	Horowitz 	and 	Morris. 	Although 	the 	core 	of 	the 	plan
was 	agreed 	upon 	in 	a 	meeting 	in 	about 	February 	1984 	between
Orbach, 	Kissler, 	Chancellor 	Young, 	Vice-Chancellors 	Schaefer
and 	Trask, 	components 	were 	added 	and 	modified 	after 	that 	date,
and 	implementation 	actually 	began 	almost 	immediately, 	prior 	to
its 	formal 	announcement 	on 	September 	10, 	1984.
25

The 	plan 	came 	about 	in 	part 	as 	a 	response 	by 	Sears 	to 	a
proposal 	for 	a 	PhD 	program 	in 	Communications 	Studies 	submitted
by 	Professors 	Rosenthal, 	Malamuth, 	and 	French 	in 	September
1983. 	David 	Sears, 	who 	had 	been 	appointed 	Dean 	of 	Social
Sciences 	during 	the 	previous 	summer, 	was 	on 	sabbatical 	in
Washington 	D.C., 	and 	was 	available 	on 	campus 	during 	short
visits 	throughout 	the 	1983-84 	academic 	year. 	The 	proposal 	for
a 	graduate 	program was 	submitted 	to 	Dean Morris. 13
Nevertheless, 	one 	of 	the 	first 	things 	that 	crossed 	Sears'
desk 	in 	his 	new 	post 	was 	that 	proposal, 	which 	was 	apparently
forwarded 	to 	Kissler 	and 	to 	him 	by Morris. 	Upon 	seeing 	it,
Sears 	studied 	the 	situation, 	found 	the 	proposal 	lacking
specificity 	in 	a 	couple 	of 	key 	areas, 	and 	requested 	further
detail. 	Sears 	and 	Morris 	did 	not 	immediately 	reject 	the 	PhD
proposal. 	Instead, 	steps 	were 	taken 	to 	explore 	and 	develop 	the
idea 	further. 	In 	Sears' 	absence, 	Vice-Provost 	Kissler 	became
Sears' 	"ears 	and 	eyes" 	on 	the 	campus. 	Kissler 	met 	with
Rosenthal 	in 	mid-November, 	in 	part 	to 	discuss 	which 	other
faculty 	might 	support 	a 	PhD 	program. 14 Discussions 	regarding
what 	faculty 	and 	resources 	were 	available 	to 	mount 	the 	program
continued 	throughout 	that 	academic 	year, 	many 	such 	discussions
being 	initiated 	with 	individual 	professors 	by 	Kissler.
13Morris 	had 	also 	just 	been 	appointed 	Dean 	of 	Humanities
in 	July 	1983.
14This 	was-the 	same 	meeting 	at 	which 	Rosenthal 	discovered
that 	the 	Speech 	FTE's 	were 	to 	be 	cut.
26

By mid-January 	1984, 	Kissler, 	Orbach, 	Sears 	and 	Morris 	were
actively 	planning 	to 	move 	forward 	with 	a 	Communications 	Studies
plan 	to 	present 	to 	the 	Chancellor, 	unbeknownst 	to 	Rosenthal,
French 	and 	Malamuth, 	who 	were 	still 	attempting 	to 	gather
support 	for 	their 	proposal. 	Sears 	was 	given 	the 	primary
responsibility 	for 	developing 	such 	a 	plan.
On 	January 	17, 	1984, 	Sears, 	Morris, 	and 	Kissler 	met 	with
Rosenthal, 	French, 	and 	Malamuth 	to 	discuss 	the 	graduate 	program
in 	CS. 	Sears 	led 	the 	discussion 	by 	going 	over 	the 	proposal 	and
indicating 	that 	it 	was 	being 	rejected. 	There 	followed 	a
discussion 	about 	other 	changes 	that 	could 	be 	made 	within 	the 	cs
Program. 	There 	is 	no 	evidence 	that 	the 	UCAFT, 	the 	lecturers,
the 	recent 	election, 	or 	Marde 	Gregory, 	were 	topics 	of
discussion 	at 	that 	meeting.
In 	about 	late 	February 	1984, 	a 	meeting 	was 	held 	which
included 	Chancellor 	Young, 	Vice-Chancellors 	Trask 	and 	Schaefer,
Provost 	Orbach, 	and 	Deans 	Sears 	and 	Morris. 	According 	to
Orbach 	it 	"set 	the 	course 	for 	subsequent 	college 	action." 	A
series 	of 	options 	were 	presented 	by 	Sears, 	some 	of 	which 	were
accepted 	by 	the 	Chancellor, 	and 	which 	Orbach 	and 	his 	staff 	then
"attempted 	to 	carry 	out."
The 	enumerated 	items 	that 	were 	agreed 	upon 	at 	that 	meeting
were: 	(1) 	to 	split 	CS 	from 	Speech; 	(2) 	move 	it 	to 	the 	division
of 	Social 	Sciences; 	(3) 	replace 	Rosenthal 	as 	chair 	of 	the
program with Malamuth; 	(4) 	increase 	the 	role 	of 	the 	advisory
27

committee 	to 	the 	program 	by 	adding 	other 	faculty 	from 	the
campus; 	(5) 	cross-list 	courses 	with 	other 	departments 	and
increase 	the 	participation 	by 	other 	departments 	in 	CS; 	and 	(6)
if 	the 	five 	steps 	above 	worked, 	move 	to 	a 	PhD 	program 	in 	CS.
Although 	these 	provided 	a 	skeleton 	for 	what 	was 	much 	later 	to
be 	formally 	announced 	to 	the 	faculty, 	there 	were 	several
subcomponents 	that 	needed 	to 	be 	set 	in motion 	immediately.
According 	to 	Kissler, 	these 	included: 	moving 	the 	ladder
faculty 	in 	Speech 	to 	other 	departments; 	separating 	the 	budget
earmarked 	for 	the 	CS 	program 	(but 	administered 	through 	Speech)
from 	the 	Speech 	Department; 	involving 	other 	faculty 	in 	the 	CS
Program; 	and 	taking 	preliminary 	steps 	to 	appoint 	Malamuth 	as
chair 	of 	the 	Speech 	Department 	and 	CS 	Program. 	As 	these 	and
other 	preliminary 	components 	of 	the 	plan 	were 	being 	carried 	out
during 	the 	spring 	of 	1984 	and 	later 	that 	year, 	the 	Sears 	Plan
developed 	further.
Orbach's 	testimony 	revealed 	that 	the 	administration's 	plan.
included 	the 	introduction 	of 	more 	ladder-rank 	faculty 	to 	teach
the 	core 	courses 	in 	Communications 	Studies; 	the 	movement 	of 	the
speech 	lecturers 	to 	the 	Writing 	Program 	(thus 	creating 	an
"empty 	shell" 	in 	the 	Department 	of 	Speech 	and/or 	a 	"de-facto"
disestablishment 	of 	Speech); 	and 	the 	gradual 	reduction 	of 	the
heavy 	reliance 	on 	temporary 	faculty 	(lecturers). 15
15Morris 	testified 	that 	the 	transfer 	of 	the 	Speech
lecturers 	to 	the 	Writing 	Program.was 	part 	of .an,over~11 	ideal
plan which 	was 	a 	joint 	product 	of 	himself 	and 	at 	least 	Kissler
and 	Orbach.
28

Regarding 	the 	last 	enumerated 	component, 	there was 	much
testimony 	as 	to 	whether 	terminations 	or 	non-reappointments 	were
going 	to 	be 	used 	to 	achiive 	the 	actual 	goal 	of 	reducing
reliance 	on 	lecturers. 	Orbach 	and 	other 	University 	witnesses
testified 	that, 	while 	reducing 	reliance 	on 	lecturers 	could 	have
included 	non-reappointment, 	it 	was 	not 	their 	intention 	to 	deny
reappointment 	in 	the 	near 	future, 	but 	was 	a 	consideration 	for
the 	future. 16
Dean 	Sears, 	however, 	testified 	that 	such 	reduction 	was 	in
fact 	contemplated 	in 	1985. 	Specifically, 	he 	initiated 	the 	idea
not 	to 	reappoint 	CS 	lecturers 	Diana 	Meehan 	and 	Janet 	Weathers.
His 	reasons 	were 	that 	a 	permanent 	program 	should 	not 	depend 	on
temporary 	faculty 	to 	any 	great 	extent, 	and 	that 	a 	university
ought 	to 	staff 	that 	curriculum with 	ladder 	faculty. 	As
detailed 	further 	below, 	there 	was 	an 	attempt 	(later 	aborted) 	to
prevent 	the 	re-appointment 	of 	CS 	lecturers, 	including 	Meehan
and 	Weathers.
In 	a 	letter 	dated 	June 	26, 	1984 	from 	Orbach 	and 	one 	dated
July 	20, 	1984 	from 	Sears, 	Professor 	Rosenthal 	was 	given 	an
ouline 	of 	the 	policy 	set 	in 	motion 	beginning 	with 	the 	February
meeting 	between 	Chancellor 	Young 	and 	administrators 	from 	the
College 	of 	L&S. 	These 	letters 	were 	responses 	to 	Rosenthal's
relentless 	efforts 	to 	prevent 	the 	administration 	from
16The 	reasoning 	was 	that, 	in 	the 	immediate 	future,
lessening 	reliance 	on 	lecturers 	could 	be 	accomplished.by 	adding
ladder 	faculty 	to 	the 	program, 	thus 	decreasing 	only 	the
percentage 	of 	lecturers.
29

disestablishing 	the 	Speech 	Department 	and 	CS 	Program 	and 	from
rotating 	the 	chairmanship 	to 	someone 	(Malamuth) 	who 	Rosenthal
felt 	had 	questionable 	loyalty 	to 	those 	entities.
On 	September 	10, 	1984, 	via 	letter 	from 	Sears, 	the
reorganization 	plan 	was 	more 	widely 	circulated 	to 	the 	college
faculty. 	Most 	of 	the 	skeletal 	components 	agreed-upon 	in 	the
February 	Chancellor's 	meeting 	were 	included.
Although 	there 	was 	some 	hesitancy 	on 	the 	part 	of 	University
witnesses 	to 	concede 	that 	implementation 	of 	the 	Sears 	plan 	was
actually 	begun 	even 	before 	its 	formal 	announcement 	on
September 	10, 	1984, 	the 	record 	abounds 	with 	evidence 	of
pre-notice 	implementation.
As 	specified 	in 	his 	September 	10 	letter, 	Sears 	announced
that 	the 	CS 	Program 	had 	already 	been moved 	to 	the 	Division 	of
Social 	Science. 	Further 	testimony 	evinces 	that 	the 	move 	was
accomplished 	the 	previous 	summer 	and 	became 	effective 	during
the 	fall 	quarter 	of 	1984.
Professor 	Phelps 	(Senate 	Faculty), 	who 	had 	been 	teaching 	a
speech 	course, 	was 	moved 	to 	the 	English 	Department. 	Similar
efforts 	were 	made 	to 	move 	Malamuth 	to 	the 	Department 	of
Psychology 	during 	the 	Spring 	and 	Summer 	of 	1984 	and 	to 	move
Rosenthal 	to 	the 	Department 	of 	English. 	The 	latter 	two
attempts 	were 	fought 	off 	successfully 	through 	Rosenthal's
protests.
In 	a 	letter 	dated 	July 	20, 	1984, 	Sears 	informed 	Rosenthal
that, 	as 	part 	of 	the 	plan's 	provision 	for 	increasing
30

ladder-rank 	faculty 	participation 	in 	teaching 	the 	CS 	courses,
one 	faculty 	member 	from 	outside 	Speech 	and 	CS 	had 	already
indicated 	interest 	in 	teaching 	in 	1985-86, 	and 	he 	(Sears) 	"was
committed 	to 	providing 	some 	temporary 	funding 	to 	permit 	that
arrangement." 	He 	also 	indicated 	he 	had 	reserved 	another 	full
temporary 	FTE 	to 	attract 	other 	faculty 	to 	the 	program 	for 	the
same 	period 	in 	anticipation 	of 	negotiating 	similar 	arrangements
with 	other 	ladder 	faculty.
In 	his 	allocation 	letter 	to 	Morris 	dated 	September 	25,
1984, 	Orbach 	allocated 	the 	three 	temporary 	FTE's 	formerly 	used
to 	support 	the 	speech 	lecturers 	to 	the 	Writing 	Program.
University 	witness 	Patricia 	Topper 	testified 	that, 	in 	1984,
Morris 	instructed 	her 	to 	send 	those 	FTE's 	to 	the 	Writing
Program. 	Carol 	Hartzog, 	previous 	director 	of 	the 	Writing
Program 	and 	currently Assistant 	to 	Vice-Chancellor 	Schaefer,
testified 	that 	prior 	to 	an 	informal 	meeting 	in 	October 	1984
with Marde 	Gregory, 	she 	had 	met 	with 	Kissler 	and 	Herb Morris.
and 	thereby 	concluded 	that 	the 	move 	of 	the 	speech 	lecturers
would 	indeed 	be 	made, 	and 	that 	later 	the 	move 	was 	delayed.
Patricia 	Topper's 	testimony, 	supported 	by
documentation, 17 that 	the 	temporary 	speech 	FTE's 	were 	indeed
allocated 	originally 	to 	the 	Writing 	Program 	in 	October/November
1984, 	is 	credited 	over 	Kissler's 	testimony 	that 	such 	allocation
was 	not 	made 	and 	over 	Morris' 	testimony 	that 	he 	did 	not 	think
7	1 	see 	Charging 	Party's 	Exhibit 	111.
31

such 	an 	allocation was 	made. 	Topper's 	job 	is 	to 	supervise
staff 	in 	the 	Provost's 	office. 	She 	has 	the 	major
administrative 	responsibility 	in 	the 	area 	of 	FTE 	and 	budget
allocations. 	She 	testified 	that, 	although 	the 	College
administration 	apparently 	reversed 	the 	October 	allocation
action 	sometime 	during 	the 	academic 	year, 	she 	was 	not 	informed
of 	this 	latter 	decision 	until 	about 	June 	1985, 	when 	she 	took
part 	in 	the 	administrative 	aspects 	of 	reallocating 	the 	FTE's 	to
Speech 	and 	in 	ensuring 	that 	the 	lecturers 	were 	compensated.
In 	comparison, 	Kissler's 	testimony 	regarding 	the 	allocation
of 	the 	FTE's 	was 	based 	not 	on 	personal 	knowledge, 	but 	on 	his
review 	of 	documents 	and 	after 	going 	over 	a 	chart 	he 	constructed
for 	the 	purposes 	of 	the 	hearing. 	During 	Morris' 	testimony
regarding 	the 	same 	subject, 	he 	appeared 	to 	be 	unsure 	of 	exactly
what 	happened 	with 	regard 	to 	the 	allocations.
The 	final 	material 	component 	of 	the 	Sears 	Plan 	that 	was
implemented 	and/or 	attempted 	was 	the 	removal 	of 	Rosenthal 	and
his 	replacement 	with 	Malamuth 	as 	chair 	of 	the 	Speech 	Department
and 	the 	CS 	Program. 	Administrators 	dissatisfied 	with
Rosenthal's 	leadership, 	including 	Orbach 	and 	Sears, 	made
attempts 	to 	replace 	Rosenthal 	through 	the 	chair 	of 	the 	Faculty
of 	the 	College 	of 	Letters 	and 	Science. 	Rosenthal 	was 	able 	to
stave 	off 	these 	efforts 	throughout 	the 	summer 	and 	fall 	of 	1984,
but 	was 	eventually 	replaced 	as 	chair 	of 	Speech 	in 	about 	July 	or
August 	1984 	and 	as 	chair 	of 	the 	CS 	Program 	in 	mid-October
32

1984 18 .
Any 	lingering 	doubt 	as 	to 	whether 	implementation 	of 	the
Sears 	plan 	was 	begun 	prior 	to 	its 	announcement 	in 	September 	is
removed 	in 	view 	of 	Orbach's 	testimony 	that 	his 	intent 	was 	to
accomplish 	these 	"administrative" 	changes 	by 	July 	1984 	and 	to
put 	the 	program 	into 	effect 	by 	the 	fall 	of 	1984. 	The 	same
conclusion 	is 	supported 	by Morris' 	statements 	to 	Orbach 	in 	a
letter 	dated 	June 	29, 	1984, 	indicating 	the 	transfers 	of
Rosenthal, 	Phelps 	and 	Malamuth 	were 	part 	of 	the 	provisions 	to
disestablish 	the 	Speech 	Department 	and 	to 	move 	the 	lecturers 	to
the 	Writing 	Program, 	were 	intended 	to 	be 	accomplished 	by
July 	1, 	1984.
1. 	Reaction 	to 	the 	Plan 	by UCAFT
At 	about 	the 	time 	the 	Sears 	Plan was 	more widely
disseminated, 	Rosenthal 	and 	the 	UCAFT 	reacted. 	Rosenthal
resisted 	its 	implementation 	by, 	inter 	alia, 	filing 	protests
with 	the 	Academic 	Senate's 	Committee 	on 	Rules 	and 	Jurisdiction,
alleging 	that 	certain 	procedural 	steps 	taken 	or 	contemplated
were 	in 	violation 	of 	established 	procedures 	and 	of 	the
principle 	of 	shared 	governance.
The 	UCAFT 	had 	been 	engaged 	in 	sytemwide 	negotiations 	with
the 	University 	since 	May 	1984, 	and 	was 	actively 	pursuing 	job
18Rosenthal 	was 	originally 	replaced 	by 	an 	interim 	chair
of 	CS 	in 	October 	after 	his 	successful 	appeal 	on 	a 	procedural
irregularity 	to 	the 	Academic 	Senate. 	Malamuth 	replaced 	the
interim 	chair 	on 	about 	January 	1984.
33

security 	for 	the 	lecturers 	through 	its 	proposals. 	Marde
Gregory 	had 	been 	elected 	as 	UCAFT's 	chief 	negotiator 	in 	about
March 	1984. 	Sometime 	after 	September 	10, 	1984, 	Gregory
initiated 	an 	informal 	meeting 	with 	Carol 	Hartzog. 	The 	focus 	of
the 	discussion 	was 	Gregory's 	concern, 	having 	read 	the 	Sears
Plan, 	over 	what, 	if 	any, 	effects 	the 	plan 	might 	have 	on 	the
lecturers 	if 	they were 	moved 	to 	the 	Writing 	Program.
The 	most 	controversy 	arose 	over 	the 	impact 	of 	the
eight-year 	rule 	on 	the 	speech 	lecturers. 	The 	Writing 	Program
had 	been 	using 	a 	more 	restrictive 	four-year 	rule 	that 	prevented
any 	lecturer 	with 	an 	appointment 	of 	over 	50% 	time 	from 	teaching
beyond 	four 	years. 	According 	to 	Hartzog's 	testimony, 	this
four-year 	rule 	was 	applied 	in 	the 	Writing 	Program
simultaneously with 	a 	policy 	of 	hiring 	lecturers 	with 	only 	100%
time 	appointments 	- 	the 	Writing 	Program was 	based 	upon
full-time 	appointments. 	Thus, 	Gregory 	told 	Hartzog 	that 	most,
if 	not 	all, 	of 	the 	lecturers 	would 	have 	been 	up 	against 	the
limit. 	Since 	the 	combined 	policies 	would 	have 	prevented 	the
current 	speech 	lecturers 	from 	transferring 	to 	the 	Writing
Program, 	Hartzog 	stated 	the 	problem 	"would 	have 	to 	be 	dealt
with." 	Hartzog 	indicated 	a 	preference 	for 	using 	a 	six-year
rule 	rather 	than 	eight, 	which 	Gregory 	opposed 	because 	it 	would
have 	had 	the 	same 	effect, 	and 	would 	have 	meant 	her 	own
. 	t.t ermina 	ion. 19
19Hartzog 	testified 	that 	if 	transferred 	to 	the 	Writing
Program under 	full 	appointments, 	and 	there 	were 	a 	six-year
34

Disturbed 	by 	the 	implications 	of 	the 	Sears 	Plan, 	Gregory
and 	other 	UCAFT 	officials 	(including 	local 	grievance 	officer
Gloria 	Busman) 	met 	with 	Horowitz, 	Kissler, 	and 	Greg 	Kramp
(University 	attorney) 	on 	about 	October 	16, 	1984. 	According 	to
Horowitz' 	testimony, 	the 	Union 	representatives 	opened 	the
meeting 	by 	expressing 	the 	lecturers' 	concerns 	of 	what 	might
happen 	to 	them 	as 	a 	consequence 	of 	what 	Sears 	had 	proposed, 	and
challenging 	whether 	there 	had 	been 	appropriate 	meeting 	and
conferring 	on 	the 	plan.
A dispute 	ensued 	about 	what 	was 	or 	was 	not 	within 	the 	scope
of 	representation. 	In 	summary, 	UCAFT 	had 	taken 	the 	position
that 	the 	implementation 	of 	the 	plan 	was 	within 	the 	scope 	and
that 	it 	should 	be 	dealt 	with 	at 	the 	systemwide 	bargaining
table. 	Gregory 	insisted 	that 	no 	unilateral 	changes 	occur 	until
she 	was 	conferred 	with. 	University 	representatives 	argued 	that
the 	plan 	itself 	was 	not 	within 	scope, 	but 	was 	a 	management
right. 	They 	asserted 	their 	only 	obligation was 	to 	meet 	and
confer 	if 	any 	implemented 	parts 	of 	the 	plan 	had 	an 	impact 	on
the 	terms 	and 	conditions 	of 	employment 	of 	the 	unit.
There 	was 	a 	conflict 	in 	testimony 	about 	whether 	the
University 	spokespersons 	promised 	to 	cease 	implementation 	of
the 	plan 	until 	all 	meet 	and 	confer 	sesions 	were 	concluded.
Gregory 	testified 	that 	Horowitz 	directed 	the 	other 	University
rule, 	those 	particular 	people 	with 	no 	remaining 	eligibility
would 	not 	have 	been 	eligible 	for 	reappointment. 	(Gregory's
unrefuted 	testimony 	indicated 	that 	this 	was 	not 	a 	me~t 	and
confer 	session.) 	,
35

officials 	present 	to 	arrange 	meet 	and 	confer 	sessions 	with
UCAFT 	before 	any 	further 	actions 	regarding 	Speech 	and
Communications 	Studies 	lecturers 	were 	taken.
Horowitz 	testified 	no 	such 	statement 	was 	made. 	Instead, 	he
related 	that 	the 	University 	agreed 	it 	would 	notify 	the 	UCAFT
representatives 	of 	any 	moves 	that 	were 	going 	to 	take 	place 	so
they 	would 	have 	an 	opportunity 	to 	meet 	and 	confer 	about 	any
possible 	impact 	of 	those 	moves.
The 	most 	plausible 	version 	of 	the 	meeting, 	supported 	by
notes 	taken 	at 	or 	near 	the 	time 	of 	the 	meeting 	and 	consistent
with 	the 	University's 	later 	actions, 	is 	that 	testified 	to 	by
Kissler, 	which 	I 	credit 	in 	the 	areas 	where 	it 	conflicts 	with
either 	Gregory's 	or 	Horowitz'. 	According 	to 	Kissler, 	Gregory
asserted 	that 	the 	reorganization 	plan 	was 	negotiable, 	she
objected 	to 	the 	component 	of 	the 	plan 	calling 	for 	the 	transfer
of 	lecturers 	to 	the 	Writing 	Program 	inasmuch 	as 	there 	had 	not
been 	any 	notice 	to 	AFT 	prior 	to 	Sears' 	September 	10 	letter.
She 	expressed 	concern 	over 	the 	intent 	to 	"decrease 	dependency
upon 	non-Senate 	members."
Kissler 	testified 	further 	that 	a 	University 	spokesperson
responded 	that 	there 	was 	no 	duty 	to 	meet 	and 	confer 	while
reorganization 	plans 	were 	being 	prepared 	and 	that 	the 	duty 	only
arose 	before 	the 	actual 	transfer 	of 	a 	unit 	member 	took 	place.
With 	regard 	to 	whether 	Horowitz 	directed 	that 	plans 	stop 	until
all 	meet 	and 	confer 	sessions 	had 	been 	completed, 	Kissler 	denied
that 	such was 	given, 	stating 	that, 	instead, 	Horowitz 	had 	said
36

that 	"if 	Herb 	[Morris] 	is 	really 	going 	to 	proceed 	with 	this,
that 	there 	would 	have 	to 	be 	some 	notice 	to 	the 	Union, 	and 	then,
that 	there 	should 	be 	meet-and-confer 	sessions 	.... "
Similarly, 	Horowitz 	testified 	that, 	with 	regard 	to 	item 	3 	in
Sears' 	September 	10 	letter 	calling 	for 	the 	transfer 	of
lecturers 	to 	the 	Writing 	Program, 	since 	the 	item 	had 	not 	yet
taken 	place, 	there 	just 	was 	no 	reason 	for 	any 	further
discussion 	about 	possibly 	meeting 	and 	conferring 	as 	to 	its
consequences.
Horowitz 	told 	Morris 	at 	that 	meeting 	that 	he 	should 	issue 	a
statement 	about 	when 	and 	where 	speech 	lecturers 	would 	be 	moved,
then 	meet 	with 	the 	Union 	to 	discuss 	possible 	impacts 	on
teaching 	loads, 	new 	department 	chairs, 	space, 	etc. 	No 	such
statement 	was 	ever 	issued 	and 	no 	such 	meetings 	were 	attempted.
Respondent 	seems 	to 	argue 	in 	its 	brief 	that, 	because 	Marde
Gregory 	never 	specifically 	detailed 	her 	complaints 	about
unilateral 	changes 	in 	Speech 	and 	CS 	at the 	bargaining 	table,
that 	there 	was 	no 	demand 	to 	bargain 	and/or 	that 	the 	University
did 	not 	breach 	its 	duty 	to 	bargain. 	The 	testimony 	of 	Marde
Gregory 	and 	even 	that 	of 	University 	witnesses 	Barbara 	Davia 	and
Robert 	Bickal 	support 	a 	contrary 	conclusion 	- 	i.e., 	that
Gregory made 	repeated 	demands 	to 	negotiate 	the 	reorganization
plan 	as 	it 	pertained 	to 	speech 	and 	CS 	lecturers, 	and 	that 	the
University was 	aware 	of 	her 	demands.
Barbara 	Davia, 	a 	member 	of 	the 	University's 	bargaining
team, 	testified 	that, 	on 	November 	8, 	1984, 	at 	a
37

regularly-scheduled 	bargaining 	session, 	Gregory 	brought 	a 	list
of 	six 	alleged 	unilateral 	changes 	- 	one 	involving 	the
reorganization 	of 	Speech 	and 	CS 	at 	UCLA 	- 	that 	the 	Union 	felt
had 	been made, 	and 	that 	the 	Union 	desired 	these 	subjects 	be
brought 	to 	the 	bargaining 	table. 	According 	to 	Davia, 	although
Gregory 	did 	not 	give 	too 	much 	detail 	about 	the 	unilateral
changes 	at 	that 	meeting, 	the 	subject 	of 	the 	reorganization 	was
raised 	by 	Gregory 	at 	perhaps 	several 	bargaining 	sessions 	after
that.
Davia 	and 	University 	chief 	negotiator 	Bickal, 	testified
that 	the 	reorganization was 	news 	to 	them when 	Gregory 	brought
it 	up 	and, 	although 	UCLA management 	representatives 	at 	the
bargaining 	table 	(Jean 	Giovannoni) 	probably 	knew 	about 	it, 	this
was 	the 	first 	time 	the 	rest 	of 	the 	management 	team 	had 	heard 	of
the 	Sears 	Plan. 	Bickal 	testified 	Gregory 	told 	him 	she 	wanted
the 	list 	of 	alleged 	unilaterals 	brought 	to 	the 	bargaining 	table
and 	she 	wanted 	a 	response 	to 	each 	of 	the 	issues.
Bickal's 	response 	to 	Gregory's 	demands 	at 	the 	November 	8
session was 	that 	he 	was 	concerned 	with whether 	the 	unilaterals
were 	in 	violation 	of 	his 	statutory 	obligations, 	would
investigate 	and 	respond 	as 	soon 	as 	he 	had 	more 	information.
Bickal 	testified 	that, 	being 	concerned 	that 	the 	reorganization
plan 	might 	have 	the 	effect 	of 	displacing 	or 	replacing
lecturers, 	he 	made 	inquiries 	of 	several 	academic 	administrators
-- 	Kissler, 	Orbach, 	Sears, 	and 	Giovannoni 	-- 	over 	an
unspecified 	time 	period, 	in 	order 	to 	make 	a 	determination 	as 	to
38

whether 	the 	plan 	involved 	the 	conditions 	of 	employment 	of 	unit
members.
There 	was 	a 	question 	over 	when, 	if 	at 	all, 	Bickal 	responded
to 	the 	UCAFT's 	demands 	to 	bargain 	and 	how many 	times 	the 	Union
repeated 	its 	demands. 	Bickal's 	and 	Davia's 	testimony was 	very
vague 	and 	equivocal 	about 	the 	subject. 	Davia 	testified 	that
she 	remembered 	Bickal 	responded 	to 	the 	listed 	items, 	but 	did
not 	recall 	his 	response 	to 	the 	Speech 	and 	CS 	issue. 	She 	did
not 	testify 	as 	to 	when, 	after 	November 	8, 	he 	made 	such 	a
response.
Similarly, 	Bickal 	failed 	to 	testify 	as 	to 	when 	he 	responded
to 	the 	Union's 	demands, 	although 	he 	did 	state 	that 	a 	response
was 	given. 	According 	to 	him, 	he 	told 	Gregory 	there 	had 	been 	a
proposal 	to 	disestablish 	the 	Speech 	Department 	and 	to 	put 	it
under 	the 	Writing 	Program. 	He 	added 	that, 	by 	this 	time 	(date
unspecified), 	that 	plan 	had 	since 	been 	abandoned 	and 	was 	no
longer 	under 	consideration. 	With 	respect 	to 	cs, 	at 	some 	pointJ.
it 	had 	been 	moved 	from 	the 	Humanities 	to 	the 	Social 	Sciences
division, 	and 	he 	(Bickal) 	was 	satisfied 	that 	the 	Sears 	Plan's
proposed 	increase 	in 	ladder 	faculty 	in 	CS 	courses 	was 	not
intended 	to 	replace 	the 	number 	of 	lecturers.
Conceding 	that 	Gregory may 	indeed 	have 	reacted 	to 	Bickal's
response 	by 	enumerating 	the 	foreseeable 	effects 	of 	the 	Sears
Plan 	and 	stating 	that 	her 	own 	job was 	at 	stake, 	Bickal
testified 	that 	he 	could 	not 	recall 	what, 	if 	any, 	response 	he
may 	have 	given.
39

While 	I 	credit 	Bickal's 	and 	Davia's 	testimony 	that 	Bickal
finally 	gave 	Gregory 	a 	response 	to 	her 	November 	8 	demands, 	I
credit 	Gregory"s 	unimpeached 	testimony: 	that 	she 	raised 	the
issue 	of 	the 	reorganization 	again 	at 	the 	November 	29, 	1984
session; 	that, 	when 	she 	repeated 	her 	requests 	at 	the 	March 	21
1985 	session, 	Bickal 	answered 	he 	was 	still 	gathering
information 	and 	would 	have 	a 	response 	later; 	that 	Gregory
insisted 	on 	a 	response 	to 	her 	demand 	again 	at 	the 	sessions 	of
April 	11 	and 	12, 	1985, 	whereupon 	Bickal 	said 	he 	and 	another
University 	representative 	(Gilpin-Bishop) 	were 	"making
progress" 	on 	the 	issue 	and 	would 	soon 	respond; 	that 	Gregory
again 	repeated 	her 	inquiries 	at 	the 	sessions 	of 	April 	25 	and
26, 	and 	that 	Bickal 	had 	yet 	failed 	to 	respond 	during 	the 	May 	2,
3, 	16, 	17, 	and 	23 	sessions.
After 	the 	May 	23 	session, 	a 	series 	of 	side 	meetings 	took
place 	where 	Gregory 	reminded 	the 	University 	representatives
that 	she 	still. had 	no,response 	to 	her .demands 	regarding 	the
alleged 	unilateral 	changes. 	Considering 	Bickal's 	testimony
that 	he 	was 	not 	sure 	whether 	his 	ultimate 	response 	was 	given 	at
or 	away 	from 	the 	bargaining 	table, 	and 	viewing 	it 	together 	with
Davia's 	and 	Gregory's 	accounts, 	I 	conclude 	that 	his 	response
was 	indeed 	given 	sometime 	in 	June 	1985. 	This 	conclusion 	is
consistent 	with, 	and 	supported 	by, 	Bickal's 	testimony 	that, 	by
now, 	the 	move 	of 	the 	lecturers 	to 	the 	Writing 	Program 	had 	been
abandoned. 	Further 	support 	is 	evidenced 	by 	the 	fact 	that 	the
FTE's 	for 	the 	speech 	lecturers 	(originally 	allocated 	by 	Orbach
40

to 	the 	Writing 	Program) 	were 	not 	formally 	reallocated 	to 	Speech
until 	June 	1985, 	according 	to 	the 	testimony 	of 	Pat 	Topper 	and
Herbert 	Morris. 	If 	Bickal 	had 	made 	a 	statement 	about 	the
abandonment 	of 	the 	move 	of 	the 	lecturers 	prior 	to 	June 	1985, 	it
would 	run 	contrary 	to 	the 	cumulative 	testimony 	of 	Morris,
Kissler, 	and 	Topper, 	and 	would 	suggest 	that 	only 	Bickal 	had 	a
clear 	understanding 	of 	the 	status 	of 	the 	lecturers' 	FTE's 	prior
to 	that 	date.
It 	is 	determined, 	therefore, 	that 	the 	UCAFT 	made 	several
specific 	demands 	to 	meet 	and 	confer 	regarding 	the 	impacts 	of
the 	Sears 	Plan 	upon 	the 	unit 	at 	several 	occasions 	during
October 	1984 	through 	June 	1985 	and 	that 	the 	University 	failed
to 	respond 	until 	June 	1985. 	Whether 	the 	response 	fulfilled 	the
University's 	obligations 	under 	HEERA 	to 	meet 	and 	confer 	with
the 	UCAFT 	will 	be 	addressed 	further 	below.
It 	cannot 	seriously 	be 	denied 	that 	the 	Sears 	Plan 	had
foreseeable 	impacts 	on 	the 	terms 	and 	conditions 	of 	employment
of 	the 	lecturers 	in 	Unit 	18. 	Carol 	Hartzog's 	testimony 	clearly
established 	that, 	in 	order 	to 	avoid 	the 	Sears 	Plan's
consequences 	of 	automatically 	terminating 	the 	speech 	lecturers,
there 	would 	have 	to 	have 	been 	a 	negotiation 	and 	change 	in 	the
University's 	eight-year 	rule, 	in 	the 	Writing 	Program's
four-year 	rule, 	and/or 	in 	the 	program's 	policy 	of 	employing
lecturers 	only 	on 	the 	basis 	of 	100% 	time. 	Indeed, 	Bickal
testified 	that 	displacement 	or 	replacement 	of 	lecturers 	was 	of
concern 	to 	him 	as 	well, 	and 	Gregory 	clearly 	articulated 	that
41

possible 	impact 	to 	both 	of 	the 	above. 	The 	effects 	of 	reducing
reliance 	on 	lecturers 	has 	already 	been 	described 	above.
Gregory 	gave 	testimony 	regarding 	other 	foreseeable 	impacts
of 	moving 	lecturers 	from 	one 	department 	to 	another. 	Included
where 	such 	things 	as 	workload 	standards, 	the 	provision 	of 	work
space, 	and 	evaluation 	criteria. 	Her 	unrefuted 	testimony 	shows
that 	the 	Writing 	Program 	lecturers 	had 	full-time 	appointments
which 	were 	designed 	for 	people 	who 	were 	to 	be 	on 	campus 	all 	the
time. 	They were 	thus 	given 	additional 	responsibilities 	to 	work
on 	various 	committees. 	However, 	because 	of 	the 	committee 	work,
Writing 	Program 	lecturers 	were 	sometimes 	released 	from 	teaching
courses. 	Lecturers 	in 	speech 	had 	a 	marked 	difference 	in
workload 	responsibilities, 	requiring 	some 	negotiated 	adjustment
before 	the 	programs 	could 	be 	merged. 	Similarly, 	with 	respect
to 	office 	space, 	the 	speech 	lecturers 	had 	private 	offices
shared 	by 	two 	individuals, 	whereas 	lecturers 	in 	the 	Writing
Program were 	all 	housed 	in 	one 	large 	room divided 	only 	by
partitions. 	Little 	specific 	testimony was 	given 	regarding
evaluation 	criteria, 	other 	than 	a 	general 	reference 	that 	the
reorganization 	plan's 	component 	of 	moving 	CS 	to 	the 	Social
Sciences 	division 	would 	subject 	those 	working 	previously 	for
the 	Humanities 	Division 	to 	a 	set 	of 	expectations 	of 	a 	different
dean, 	and 	subject 	those 	who 	had 	been working 	in 	Speech 	to 	the
expectations 	of 	a 	Writing 	Program 	director 	rather 	than 	their
previous 	department 	chair.
42

Apart 	from 	the 	potential 	impacts 	noted 	above, 	there 	was 	an
actual 	impact 	that 	resulted 	from 	the 	attempted, 	although 	later
abandoned, 	move 	of 	the 	speech 	lecturers. 	As 	noted 	earlier,
Orbach 	reallocated 	the 	Speech 	temporary 	FTE's 	to 	the 	Writing
Program 	in 	September 	1984. 	Morris, 	who 	yet 	had 	final 	say 	as 	to
where 	within 	his 	division 	he 	could 	allocate 	those 	FTE's, 	then
directed 	Pat 	Topper 	to 	send 	them 	to 	the 	Writing 	Program.
Topper 	testified 	that 	she 	could 	not 	recall 	whether 	she 	indeed
informed 	the 	Writing 	Program 	of 	the 	allocation. 	Morris
testified 	that 	he 	did 	not 	think 	they 	were 	ever 	allocated 	to 	the
Writing 	Program. 	There 	are 	no 	documents, 	other 	than 	Orbach's
September 	allocation 	letter, 	to 	indicate 	whether 	the 	Writing
Program 	acted 	to 	fill 	their 	recently 	acquired 	FTE's.
Sometime 	during 	the 	Spring 	of 	1985, 	Morris 	told 	Kissler
that, 	upon 	further 	reflection, 	moving 	the 	lecturers 	to 	the
Writing 	Program was 	not 	a 	good 	idea. 	However, 	instead 	of
getting 	an 	acknowledgement 	from 	Kissler 	that 	he 	agreed 	and 	that
the move 	would 	be 	reversed, 	he 	simply 	assumed 	the 	proper
"corrective" 	steps 	would 	be 	taken. 	He 	also 	failed 	to 	direct
Topper 	to 	allocate 	those 	FTE's 	back 	to 	Speech 	until 	June 	1985.
Only 	as 	a 	result 	of 	inquiries 	by 	Gregory 	was 	Morris
apprised 	of 	the 	failure 	to 	reallocate. 	By 	the 	time 	he
discovered 	this 	and 	Topper 	made 	the 	adjustments, 	the 	deadline
had 	passed 	for 	timely 	submission 	of 	the 	required 	personnel
forms 	to 	the 	payroll 	and 	personnel 	departments.
43

Although 	the 	lecturers 	were 	informed, 	via 	memo 	from
Malamuth 	on 	about 	June 	12, 	1985, 	that 	the 	deans 	had 	recently
approved 	their 	reappointments, 	the 	bureaucratic 	process
prevented 	the 	lecturers 	from 	being 	paid 	on 	time. 	Marde 	Gregory
was 	paid 	three 	weeks 	late 	(August 	22, 	1985) 	and 	the 	remaining
lecturers 	were 	also 	paid 	late 	(either 	one 	or 	three 	weeks).
Aside 	from 	lecturers' 	having 	to 	have 	the 	University's
contribution 	for 	health 	benefits 	deducted 	from 	one 	of 	their
summer 	checks, 	the 	delay 	caused Marde 	Gregory 	to 	borrow money
to 	meet 	her 	financial 	obligations. 	Eventually, 	the 	University
paid 	the 	lecturers 	the 	amounts 	they 	would 	have 	received 	had 	the
move 	to 	the 	Writing 	Program 	never 	been 	attempted.
An 	attempt 	was 	made 	to 	reduce 	the 	number 	of 	CS 	lecturers 	in
1985. 	In 	May 	of 	that 	year, 	Sears 	proposed, 	via 	memorandum
addressed 	to 	"Deans," 	but 	delivered 	only 	to 	Kissler 	for 	his
comments, 	that 	ladder 	faculty 	from 	other 	departments 	replace
the 	four 	CS 	lecturers. 	Specifically, 	he 	wrote 	that 	Weathers
and 	Meehan 	should 	be 	replaced 	because 	they 	were 	"weak," 	that
Cowan 	should 	be 	replaced 	with 	Professor 	Shiffrin 	of 	the 	law
school 	and, 	because 	lecturer 	Cole's 	status 	could 	not 	definitely
be 	maintained 	at 	his 	current 	100% 	time 	appointment, 	that 	his
position 	be 	placed 	in 	an 	annual 	national 	search 	(presumably 	to
be 	filled 	by 	a 	ladder 	faculty 	recruit). 20
2 0sears' 	disingenuous 	attempt 	to 	dismiss 	his 	memo 	draft
as 	a 	"joke" 	was 	unconvincing. 	Kissler's 	testimony 	regarding
the 	memo 	and 	his 	meeting 	with Sears 	about 	the 	memo, 	indicates
otherwise. 	Kissler 	took 	the 	memo 	as 	a 	very 	serious 	matter.
44

Before 	distributing 	his 	proposal 	to 	the 	various
administrators, 	Sears 	met 	with 	Kissler 	regarding 	its 	contents.
Kissler 	convinced 	him 	that 	the 	proposal 	was 	unwise, 	and 	the
plan 	was 	set 	aside. 	However, 	later 	that 	year, 	according 	to
Kissler, 	the 	idea, 	or 	a 	portion 	of 	it, 	resurfaced. 	In 	that
instance, 	Kissler 	made 	efforts 	to 	determine 	whether 	Weathers
and 	Meehan 	should 	not 	be 	reappointed. 	After 	making 	inquiries,
including 	whether 	they were 	members 	of 	UCAFT 	and 	whether 	the
issue 	required 	prior 	negotiations 	with 	the 	Union, 	the 	proposal
. 	d 	d	was 	again 	roppe 	. 21
F. 	The 	Chaffee/Clarke 	Review 	of 	CS
During 	the 	time 	the 	University 	administration 	was 	engaged
in 	implementing 	the 	Sears 	Plan, 	the 	CS 	Program was 	due 	for 	its
regularly 	scheduled 	review 	by 	the 	Academic 	Senate's 	Committee
on 	Undergraduate 	Courses 	and 	Curricula 	(CUCC). 	The 	UCAFT 	has
argued 	that, 	during 	the 	review 	process, 	Professor 	Steven
Chaffee 	(one 	of 	two 	professors 	composing 	a 	subcommittee 	which
had 	been 	called 	in 	to 	gather 	data 	and 	make 	recommendations 	to
the 	CUCC) 	unlawfully 	conveyed 	a 	message 	to 	Marde 	Gregory 	from
the 	administration 	to 	the 	effect 	that 	if 	she 	gave 	up 	her
bargaining 	table 	efforts 	to 	obtain 	job 	security 	for 	lecturers,
the 	CS 	Program 	could 	have 	everything 	it 	wanted. 	The
subcommittee's 	work 	and 	its 	report 	are 	also 	asserted 	to 	be
21Apparently, 	at 	least 	some 	of 	the 	lecturers 	became 	aware
of 	Sears' 	May 	30 	memo 	because 	Malamuth was 	asked 	about 	his
knowledge 	of 	a 	"hit 	list" 	designed 	to 	terminate 	the 	CS
lecturers.
45

relevant 	in 	other 	respects, 	including 	determining 	whether 	the
administration's 	efforts 	to 	reorganize 	the 	CS 	Program were
truly 	based 	upon 	legitimate 	academic 	considerations.
The 	CUCC 	had 	scheduled 	a 	review 	of 	the 	CS 	Program 	to 	take
place 	during 	the 	1984-85 	academic 	year. 	As 	part 	of 	that
review, 	the 	CUCC 	called 	in 	two 	outside 	experts 	in 	the 	field 	of
Communications. 	These, 	Peter 	Clarke 	and 	Steven 	Chaffee,
gathered 	data 	by, 	inter 	alia, 	interviewing 	those 	on 	a 	list 	of
professors, 	students, 	and 	administrators 	on 	the 	UCLA 	campus. 22
According 	to 	the 	testimony 	of 	Marde 	Gregory, 	when 	Chaffee
came 	to 	interview 	her, 	he 	told 	her 	that 	he 	had 	just 	come 	from 	a
long 	meeting 	with 	Dean 	Sears, 	that 	he 	had 	become 	aware 	she 	was
acting 	as 	chief 	negotiator 	for 	the 	non-Senate 	faculty, 	and
(after 	giving 	Gregory 	his 	views 	of 	the 	undesirability 	of
unionization 	in 	academic 	atmospheres 	based 	on 	his 	experiences
at 	the 	University 	of 	Wisconsin) 	that:
didn't 	I 	understand 	that 	there 	was 	nothing
that 	could 	happen 	in 	the 	development 	of 	the
com 	studies 	program, 	as 	long 	as 	there 	was
this 	heavy 	percentage 	of 	non-Senate 	faculty
involved 	in 	the 	program.
After 	Gregory 	responded 	that 	the 	percentage 	of 	lecturers 	could
be 	reduced 	by 	simply 	hiring 	more 	ladder 	faculty 	rather 	than
eliminating 	lecturers, 	she 	allegedly was 	told 	that 	the 	cs
22 chaffee 	had 	been 	a 	visting 	lecturer 	at 	UCLA 	several
years 	prior 	to 	his 	visit. 	At 	the 	time 	of 	the 	review, 	Chaffee
was 	employed 	at 	Stanford 	University 	and, 	previously, 	he 	had
been 	at 	the 	University 	of 	Wisconsin.
46

Program 	could 	have 	anything 	it 	wanted, 	including 	departmental
status, 	a 	graduate 	program, 	prestige 	in 	the 	University,
faculty, 	funding 	and 	support 	from 	the 	University, 	if 	only 	"I
would 	surrender 	my 	interest 	and 	position 	in 	the 	job 	security
area 	of 	the 	negotiations 	for 	the 	non-Senate 	faculty." 	Gregory
further 	testified 	Chaffee 	told 	her 	that 	the 	future 	of 	the 	CS
Program was 	in 	jeopardy 	as 	long 	as 	there 	was 	dependence 	on
non-Senate 	faculty. 	After 	stating 	her 	disagreement, 	Gregory
continued, 	she 	told 	Chaffee 	that 	they 	were 	going 	to 	have 	to
agree 	to 	disagree. 	Chaffee 	allegedly 	told 	Gregory 	that 	he 	felt
it 	was 	important 	that 	this 	conversation 	be 	kept 	between 	the 	two
of 	them. 23
There 	is 	a 	sharp 	factual 	conflict 	as 	to 	Gregory's 	meeting
with 	Chaffee 	which 	occurred 	on 	about 	November 	1, 	1984.
According 	to 	Chaffee, 	he 	had 	not 	just 	come 	from 	a 	long 	meeting
with 	Sears 	when 	he 	visited 	Gregory, .but 	had 	come 	directly 	from
the 	office 	of 	Professor 	Patrice 	French, 	whom 	he 	had 	known
previously, 	and 	he 	was 	disturbed 	because 	of 	her 	apparent 	change
in 	attitude 	over 	the 	years. 	French's 	office 	was 	a 	few 	doors
from 	Gregory's 	and, 	when 	Chaffee 	began 	the 	conversation, 	he
asked 	her, 	"What's 	with 	Patrice?" 	Having 	gotten 	no 	definitive
23Gregory's 	account 	appears 	in 	at 	least 	three 	separate
parts 	of 	the 	transcript. 	In 	each 	instance, 	the 	version 	of 	the
meeting 	is 	somewhat 	different. 	The 	above 	is 	a 	compilation 	of
her 	testimony 	regarding 	it.
47

answer 	from 	Gregory, 	he 	testified 	that 	he 	talked 	about 	other
subjects.
Chaffee 	testified 	that 	most 	of 	the 	meeting 	was 	devoted 	to
exploring 	what 	to 	put 	into 	his 	report 	to 	the 	CUCC 	and 	to
getting 	Gregory's 	reactions 	to 	things 	they were 	thinking 	of
recommending. 	He 	did 	talk 	to 	her 	about 	his 	views 	regarding
unions 	in 	academia, 	having 	heard 	either 	from 	Paul 	Rosenthal 	or
Jeff 	Cole 	that 	Gregory was 	spending 	a 	lot 	of 	time 	with 	union
activities. 	Gregory's 	response 	was 	some 	general 	disagreement
with 	his 	views.
According 	to 	Chaffee, 	he 	had 	not 	spoken 	to 	Sears 	or 	the
administration 	about 	labor 	unions 	prior 	to 	meeting 	with 	Gregory
and, 	at 	a 	previous 	lunch 	he 	had 	with 	a 	group 	of 	people 	that
included 	Sears, 	her 	name 	was 	not 	mentioned. 	He 	added 	that 	he
had 	no 	discussions 	prior 	to 	the 	meeting 	about 	Gregory's 	attempt
to 	obtain 	job 	security 	for 	lecturers, 	he 	did 	not 	even 	know
about 	those 	efforts, 	nor 	about.:Gregory's 	role 	as 	negotiator
until 	shortly 	before 	the 	unfair 	practice 	hearing. 	During 	their
meeting, 	Gregory 	did 	not 	mention 	her 	role 	at 	the 	bargaining
table, 	and 	Chaffee 	did 	not 	ask 	her 	about 	it.
Most 	significantly, 	Chaffee 	testified 	that 	he 	did 	not 	tell
Gregory 	that 	if 	she 	would 	drop 	her 	efforts 	at 	job 	security 	for
lecturers, 	the 	CS 	Program would 	benefit, 	nor 	that 	the
conversation 	should 	remain 	just 	between 	the 	two 	of 	them. 	His
explanation 	for 	not 	doing 	so 	was: 	he 	had 	no 	knowledge 	that 	she
48

was 	involved 	in 	efforts 	to 	get 	job 	security 	for 	lecturers; 	if
she 	was, 	it 	was 	his 	(Chaffee's) 	opinion 	that 	job 	security 	for
lecturers 	was 	indeed 	a 	good 	thing, 	something 	he 	had 	personally
undertaken 	to 	achieve 	at 	the 	University 	of 	Wisconsin 	and
something 	he 	felt 	ought 	to 	be 	done 	and 	commended; 	he 	simply
could 	not 	and 	would 	not 	engage 	in 	an 	inappropriate 	"deal" 	where
academic 	decisions 	were 	being 	traded 	off 	against 	union
activity; 	he 	had 	no 	power 	to 	make 	or 	effectuate 	such 	a 	"deal,"
inasmuch 	as 	all 	he 	and 	Clarke 	could 	do 	was 	to 	submit 	their
report 	to 	the 	CUCC, 	which 	would, 	in 	turn, 	incorporate 	it 	into
its 	own 	report. 	Chaffee 	had 	no 	power 	to 	fulfill 	the 	needs 	of
the 	CS 	Program 	outside 	of 	this.
Chaffee's 	testimony, 	considering 	its 	substance 	and 	his
demeanor, 	was 	clearly 	the 	more 	credible. 	Each 	time 	Gregory
described 	the 	account, 	the 	facts 	altered 	in 	some way.
Other 	disturbing 	details 	in 	Gregory's 	testimony 	support 	a
credibility 	finding 	in 	favor 	of.Chaffee's 	account.
Specifically, 	Gregory 	testified 	that, 	upon 	hearing 	Chaffee's
proposed 	deal, 	she 	was 	very 	"shaken" 	by 	the 	conversation 	and
found 	it 	very 	disturbing. 	Yet, 	she 	added 	that 	after 	she 	told
Chaffee 	they 	would 	have 	to 	agree 	to 	disagree, 	they 	had 	"a 	very
good 	and 	collegial 	discussion 	from 	that 	point 	on." 	Following
the 	meeting, 	she 	did 	not 	complain 	to 	anyone 	about 	it 	and 	did
not 	attempt 	to 	find 	out 	whether 	indeed 	Sears 	had 	used 	Chaffee
to 	transmit 	such 	a 	deal.
49

Chaffee's 	account 	had 	a 	ring 	of 	truth 	to 	it. 	At 	the 	time
of 	the 	interview, 	he 	was 	a 	professor 	at 	Stanford 	University.
At 	the 	time 	of 	his 	testimony, 	he 	was 	on 	leave 	from 	Stanford 	and
teaching 	at 	the 	University 	of 	Wisconsin 	(Madison). 	He 	was 	not
an 	employee 	of 	the 	UC 	system 	and 	there 	is 	no 	evidence 	that 	he
had 	any 	interest 	in 	the 	outcome 	of 	the 	case.
Consistent 	with 	his 	testimony, 	the 	report 	he 	and 	Clarke
submitted 	to 	the 	CUCC 	did 	recommend 	a 	gradual 	upgrading 	of 	the
CS 	Program 	(Exhibit 	RRR) 	by 	the 	addition 	of 	ladder 	faculty
FTE's, 	not 	elimination 	of 	temporary 	lecturers. 	Of 	the 	three
alternatives 	considered 	for 	the 	program 	- 	maintain 	the 	present
level 	of 	support, 	improve 	the 	scope 	and 	depth 	of 	CS, 	or 	allow
the 	program 	to 	wither 	- 	they 	recommended 	the 	second 	choice 	and
specified 	that 	elimination 	of 	CS 	was 	the 	least 	palatable
alternative.
During 	his 	testimony, 	Chaffee 	freely 	gave 	testimony 	that
arguably 	favored 	the 	UCAFT. 	Specifically, 	he 	ventured 	his
expert 	opinion 	that 	moving 	the 	ladder 	faculty 	in 	Speech 	to
other 	departments, 	even 	if 	the 	other 	departments 	were 	told
those 	FTE's 	had 	to 	be 	filled 	for 	CS 	courses 	(in 	the 	event
either 	of 	the 	two 	resigned 	or 	retired), 	the 	result 	would 	be 	a
weakened 	program. 	His 	explanation was 	that, 	in 	order 	for 	CS 	to
remain 	a 	strong 	program, 	it 	needed 	to 	have 	its 	central
decision-making 	apparatus 	concerned 	with 	the 	field 	of 	CS, 	and
not 	psychology.
50

Chaffee's 	views 	were 	philosophically 	opposed 	to 	the 	Sears
Plan 	and 	he 	freely 	explained 	them. 	His 	reputation 	as 	one 	of
the 	top-ranking 	authorities 	in 	the 	field 	of 	communications
studies, 	justifying 	his 	selection 	by 	the.Academic 	Senate, 	make
it 	highly 	unlikely 	that 	he 	would 	have 	allowed 	himself 	to 	be
used 	to 	deliver 	an 	improper 	and 	unlawful 	message 	to 	Gregory.
G. 	Other 	Allegations 	of 	Reprisals 	Against 	Gregory
The 	UCAFT 	has 	alleged 	that, 	after 	Gregory 	became 	its 	chief
negotiator, 	the 	University 	"sent 	her 	to 	Coventry," 	deleted 	a
favorabe 	reference 	to 	her 	in 	a 	CUCC 	draft 	report, 	changed 	her
title 	from 	visiting 	lecturer 	to 	"adjunct 	lecturer" 	without 	her
knowledge 	(thereby 	moving 	her 	out 	of 	the 	bargaining 	unit),
threatened 	to 	take 	away 	her 	duties 	as 	instructor 	of
Communications 	Studies 	185, 	and 	interfered 	with 	her 	attempts 	to
arrange 	released 	time 	for 	negotiations. 	Inasmuch 	as 	the 	last
two 	issues 	are 	factually 	related 	to 	the 	issue 	of 	released 	time,
those.will-be 	discussed 	below 	in 	conjunction 	with 	the 	analysip
of 	other 	released-time 	negotiations.
Gregory 	testified 	that, 	soon 	after 	she 	filed 	the 	instant
unfair 	practice 	charge, 	and 	after 	she 	had 	engaged 	in
negotiations 	on 	behalf 	of 	UCAFT, 	certain 	members 	of 	the
administration, 	including 	Neil 	Malamuth 	(then 	chair 	of 	the
Speech 	Department 	and 	CS 	Program) 	and 	Carol 	Hartzog, 	shunned,
avoided, 	and 	otherwise 	ostracized 	her. 	Specifically, 	she
recounted 	that 	Malamuth 	refused 	to 	speak with 	her 	and, 	whenever
she 	said 	"Hello" 	to 	him 	he 	said 	nothing 	in 	return.
51

With 	respect 	to 	Carol 	Hartzog, 	Gregory 	testified 	that 	on
one 	occasion when 	they 	were 	walking 	towards 	each 	other, 	Hartzog
crossed 	the 	street 	and, 	when 	Gregory 	had 	passed, 	Hartzog
crossed 	back 	to 	the 	other 	side. 	On 	another 	occasion, 	when
Gregory was 	walking 	with 	Tom Miller, 	a 	colleague, 	Hartzog
allegedly 	approached, 	took Miller 	by 	the 	arm 	and 	left 	Gregory
standing 	alone.
According 	to 	Gregory, 	Paul 	Rosenthal 	told 	her 	that 	Malamuth
told 	him 	that 	he 	(Malamuth) 	and 	others 	had 	been 	instructed 	by
the 	administration 	not 	to 	speak with 	her. 	Gregory 	finally
brought 	the 	incidents 	to 	the 	attention 	of 	Robert 	Bickal,
claiming 	that 	the 	refusal 	to 	talk 	to 	her 	was 	as 	much 	harassment
as 	talking 	to 	her. 	Allegedly, 	the 	ostracizm 	suddenly 	stopped
after 	that.
Hartzog 	and 	Malamuth 	both 	denied 	intentionally 	harassing
Gregory 	by 	avoidance 	or 	ostracism 	and 	denied 	they 	were 	ever
instructed 	to 	do 	so 	or 	to 	refrain 	from 	doing 	so. 	According 	to
Malamuth's 	testimony, 	although 	he 	was 	initially 	outraged 	at
seeing 	that 	the 	Unfair 	Practice 	Charge 	accused 	him 	of 	certain
inappropriate 	conduct, 	he 	did 	not 	stop 	speaking 	to 	Gregory.
While 	conceding 	he 	was 	not 	especially 	seeking 	opportunities 	to
speak 	to 	Gregory 	and 	that 	his 	non-intended, 	non-verbal 	manner
may 	not 	have 	seemed 	especially warm, 	he 	was 	cordial 	to 	her 	and
made 	salutary 	remarks. 	He 	testified 	he 	never 	told 	Rosenthal
that 	he 	had 	been 	instructed 	not 	to 	interact 	with 	Gregory, 	and
52

he 	did 	not 	even 	know 	Bickal, 	much 	less 	talk with 	him 	about 	the
subject.
Although 	called 	to 	testify 	on 	behalf 	of 	the 	UCAFT 	regarding
other 	matters, 	Rosenthal 	never 	corroborated 	Gregory's 	hearsay
testimony 	about 	the 	alleged 	instructions 	not 	to 	interact 	with
her. 	Unquestionably, 	Rosenthal 	was 	a 	friendly 	witness 	for 	the
UCAFT. 	Tom Miller, 	Gregory's 	colleague 	and 	only 	other 	witness
to 	the 	"snubbing" 	incident 	involving 	Hartzog 	and 	Gregory, 	was
similarly 	not 	called 	to 	corroborate 	the 	disputed 	facts.
These 	factors, 	considered 	together 	with 	the 	demeanor 	of
each 	witness 	testifying 	on 	the 	subject, 	lead 	to 	the 	conclusion
that 	Gregory was 	never 	intentionally 	''sent 	to 	Coventry" 	and
that 	the 	University 	administration 	did 	not 	direct 	anyone 	to
ostracize 	her. 	Whatever 	"coldness" 	Gregory 	felt 	in Malamuth's
non-verbal 	behavior 	toward 	her 	was 	the 	result 	of 	his
understandable 	unintentional 	reaction 	to 	being 	accused 	of
unlawful 	conduct 	in 	the 	Unfair 	Practice 	Charge.
The 	next 	alleged 	act 	of 	retaliatory 	harassment 	had 	to 	do
with 	the 	CUCC's 	drafts 	of 	its 	report 	on 	the 	evaluation 	of 	the
CS 	Program. 	The 	first 	version 	of 	the 	report, 	issued 	on 	about
February 	1985, 	made 	the 	following 	reference 	at 	page 	11 	of 	a
report 	consisting 	of 	16 	pages:
The 	screening 	of 	applicants 	and 	choice 	of
those 	admitted 	are 	formally 	in 	the 	hands 	of
the 	Administering 	Committee, 	but 	in 	practice
are 	mainly 	the 	responsibility 	of 	Ms.
Gregory. 	In 	view 	of 	her 	experience 	and
53

evident 	competence, 	we 	see 	nothing 	to 	object
to 	in 	this 	procedure ... 	,24
Sometime 	after 	this 	version 	of 	the 	report 	was 	drafted, 	it
was 	circulated 	to 	some 	members 	of 	the 	faculty, 	including
Rosenthal 	and 	Malamuth, 	for 	their 	review 	and 	comments.
On 	April 	15, 	1985, 	Malamuth wrote 	to 	the 	chair 	of 	the 	CUCC,
Professor 	Andrew 	Charwat, 	and 	discussed 	two 	areas 	where 	he
believed 	the 	draft 	was 	in 	error 	and 	should 	be 	changed. 	The
bulk 	of 	the 	letter 	deals 	with Malamuth's 	objection 	to 	the
report's 	analysis 	and 	conclusion 	that 	the 	number 	of 	CS 	courses
taken 	by 	students 	has 	been 	minimized 	due 	to 	dissatisfaction
with 	CS 	courses. 	In 	one 	paragraph, 	however, 	he 	made 	the
following 	objection:
First, 	on 	page 	11, 	the 	review 	indicates 	that
in 	practice Ms. 	Gregory 	has 	the 	major
responsibility 	for 	the 	choice 	of 	those
admitted 	to 	the 	program. 	While 	Ms. 	Gregory
has 	prepared 	the 	materials 	for 	the 	committee
and 	has 	made 	recommendations, 	in 	the 	three
years 	that 	I 	have 	been 	here 	Professor
Rosenthal 	and 	myself 	have 	actually 	made 	the
admissions 	decisions.25
At 	its 	meeting 	of 	April 	17, 	1985, 	Malamuth's 	letter 	was
discussed 	by 	the 	CUCC. 	While 	under 	no 	obligation 	to 	accept 	the
changes 	proposed 	by Malamuth, 	the 	Committee 	felt 	there 	might 	be
a 	problem with 	the 	draft 	report's 	suggestion 	that 	the 	faculty
leading 	the 	program was 	inappropriately 	delegating 	its
24 There 	are 	several 	other 	references 	to 	Gregory 	in 	the
draft 	report, 	not 	at 	issue 	herein.
2 5Malamuth 	did 	not 	propose 	alternative 	language.
54

authority 	in 	certain 	activities. 	Therefore, 	it 	issued 	a
revised 	report 	sometime 	thereafter, 	modifying 	the 	paragraph 	on
page 	11 	as 	follows:
The 	screening 	of 	applicants 	and 	choice 	of
those 	admitted 	are 	in 	the 	hands 	of 	the
Administering 	Committee, 	based 	on 	the
recommendations 	of 	Ms. 	Gregory. 	There 	is 	no
set 	minimum 	GPA 	for 	admission 	... "
The 	second 	portion 	of 	the 	report 	to 	which Malamuth 	objected 	was
also 	deleted 	from 	page 	9.
The 	UCAFT 	argued 	that 	Malamuth's 	objections 	caused 	the 	CUCC
to 	delete 	the 	draft's 	reference 	to 	Gregory's 	"experience 	and
evident 	competence." 	Gregory 	testified 	this 	would 	have 	hurt
her 	in 	the 	sense 	that 	the 	initial 	report 	would 	probably 	have
been 	placed 	"in 	her 	file" 	as 	a 	form 	of 	favorable 	letter 	of
recommendation.
Malamuth's 	uncontradicted 	testimony made 	it 	evident,
however, 	that 	it 	was 	not 	at 	his 	insistence 	the 	phrase
"experience 	and 	evident 	competence!' 	be 	deleted 	and 	that 	his
objection was 	to 	the 	first 	part 	of 	the 	sentence 	dealing 	with
the 	"practice 	of 	the 	Committee." 	Charwat's 	testimony 	supported
the 	conclusion 	that 	the 	changes 	were 	made 	at 	the 	Committee's
discretion 	and 	based 	on 	considerations 	other 	than 	Gregory's
protected 	activities. 	While 	Gregory's 	admissions
recommendations 	were 	almost 	always 	followed, 	Rosenthal 	and
Malamuth 	indeed 	had 	the 	final 	authority 	as 	to 	whether 	to 	accept
them. 	Gregory 	did 	not 	testify 	that 	the 	revised 	report 	was
erroneous 	in 	this 	respect.
55

Interestingly, 	the 	Committee 	also 	preserved, 	though 	in
modified 	form, 	at 	pages 	9 	and 	11, 	comments 	arguably 	critical 	of
Malamuth's 	courses 	as 	being 	unpopular 	with 	students 	and 	of 	his
research 	orientation 	as 	not 	being 	"central" 	from 	the 	standpoint
of 	the 	communication 	discipline.
As 	to 	Gregory's 	allegation 	that 	her 	title was 	changed 	from
visiting 	lecturer 	to 	adjunct 	lecturer, 	the 	evidence, 	including
testimony 	given 	by Gregory 	herself, 	indicates 	that 	the 	change
did 	occur, 	but 	for 	reasons 	other 	than 	retaliation 	or 	harassment
of 	any 	sort.
Gregory 	acknowledged 	she 	was 	originally 	(1981) 	given 	the
title 	of 	adjunct 	lecturer 	because, 	in 	addition 	to 	having 	a
lecturer 	(instructional) 	title, 	she 	was 	given 	another
(auxiliary) 	title 	as 	Student 	Affairs 	Officer 	for 	the 	CS
Program. 	For 	reasons 	that 	are 	unclear, 	she 	later 	was
designated 	as 	a 	visiting 	lecturer. 	At 	the 	time 	of 	the 	Unit 	18
election, 	adjunct 	lecturers 	were 	not 	included 	in 	the 	unit 	and
could 	not 	therefore 	vote. 	Since 	Gregory's 	title 	had 	become
visiting 	lecturer, 	she 	was 	allowed 	to 	vote. 	Her 	title 	remained
unchanged 	through 	the 	beginning 	of 	February 	1985.
In 	mid-June 	1985 	Gregory 	found 	out 	that 	her 	title 	had 	been
changed 	back 	to 	adjunct 	lecturer, 	thus 	out 	of 	the 	unit, 	as 	of
late 	February 	1985. 	She 	surmised 	that 	the 	reason 	for 	it 	was 	to
exclude 	her 	from 	the 	unit 	she 	was 	representing. 	She 	testified
that 	she 	never 	found 	out 	who 	changed 	her 	title, 	however. 	Upon
discovering 	the 	change, 	she 	complained 	to 	Bickal.
56

Sometime 	thereafter 	the 	University 	agreed 	to 	move 	all
adjunct 	lecturers 	into 	Unit 	18, 	including 	Gregory. 	The
decision 	resulted 	from 	the 	resolution 	of 	a 	dispute 	between
UCAFT 	and 	the 	University 	as 	to 	the 	proper 	unit 	designation.
Gregory 	conceded 	that, 	during 	that 	dispute 	the 	University 	found
anomalies 	in 	its 	listing 	of 	adjuncts, 	including 	Gregory's.
Therefore, 	in 	an 	attempt 	to 	classify 	properly, 	it 	changed 	the
titles 	to 	what 	they 	should 	have 	been 	all 	along. 	Following 	the
changes, 	and 	a 	resulting 	settlement 	agreement, 	all 	adjuncts
were 	included 	in 	the 	unit 	pursuant 	to 	a 	PERB 	Unit 	Modification
Order 	dated October 	3, 	1985 	(see 	PERB 	File 	No. 	SF-R-18,
SF-UM-371-H).
Gregory 	testified 	that 	it 	occurred 	to 	her 	that 	the 	cause 	of
her 	reclassification 	back 	to 	adjunct 	lecturer 	was 	a 	result 	of
the 	University's 	review 	of 	its 	records 	where 	it 	found 	that
quite 	a 	number 	of 	people, 	including 	herself, 	were
reclassified.· 	There 	is 	no 	evidence 	that 	the 	reclassification
was 	taken 	as 	a 	reprisal 	for 	Gregory's 	exercise 	of 	protected
rights. 	There 	is 	similarly 	no 	evidence 	that, 	between 	February
and 	October 	1985, 	Gregory's 	technical 	exclusion 	out 	of 	the 	unit
had 	any 	adverse 	impact 	on 	her 	role 	as 	negotiator 	or 	on 	her
duties 	as 	an 	employee.
H. 	Released 	Time
Because 	of 	the 	way 	in 	which 	released 	time 	allegations 	were
pled 	in 	the 	underlying 	charge, 	the 	theories 	surrounding 	it 	were
57

often 	muddled. 	At 	times 	it 	appeared 	that 	the 	allegations 	were
that 	the 	University was barassing 	Gregory 	in 	the 	way 	it 	dealt
with 	released 	time 	at 	and 	away 	from 	the 	table. 	At 	other 	times
the 	UCAFT 	appeared 	to 	be 	alleging 	that 	the 	University 	bargained
in 	bad 	faith 	regarding 	released 	time. 	Finally, 	it 	sometimes
appeared 	that 	the 	issue 	was 	whether 	or 	not 	the 	University 	in
fact 	granted 	reasonable 	amounts 	of 	released 	time 	for
negotiations. 	All 	three 	theories 	will 	be 	discussed 	below.
1. 	Negotiation 	of 	Released 	Time
Unit 	18 	was 	originally 	designated 	by 	the 	PERB 	pursuant 	to
Decision 	No. 	270-H, 	dated 	December 	28, 	1982. 	Consequently,
when 	the 	UCAFT 	and 	the 	University 	began 	negotiations 	after
election 	results 	were 	announced, 	there 	was 	no 	memorandum 	of
understanding 	in 	effect 	and 	no 	ground 	rules 	governing 	the
provision 	of 	released 	time 	for 	unit 	members 	to 	engage 	in
meeting 	and 	conferring 	pursuant 	to 	HEERA 	section 	3569. 	Given
this, 	one 	of 	the 	initial 	concerns 	for.both 	parties 	was 	the
negotiation 	of 	ground 	rules 	which 	would 	include 	released 	time.
With 	respect 	to 	the 	provision 	of 	released 	time 	for
negotiations 	without 	loss 	of 	pay, 	there 	was 	virtually 	no
disagreement 	from 	the 	inception. 	That 	is, 	at 	the 	first
negotiation 	session 	on 	May 	18, 	1984, 	the 	University 	stated 	that
although 	HEERA 	called 	for 	the 	granting 	of 	reassigned 	time 	as 	a
minimum, 	it 	would 	be 	willing 	to 	grant 	released 	time. 	The 	next
few 	sessions 	(May 	1, 	June 	1, 	June 	15, 	June 	28, 	and 	June 	29)
58

were 	spent 	mainly 	discussing 	ground 	rules 	and 	held 	during 	times
when 	no 	classes 	were 	scheduled. 	At 	the 	session 	of 	June 	28
and 	29, 26 the 	parties 	agreed 	to 	a 	set 	of 	ground 	rules 	which
covered, 	inter 	alia, 	released 	time. 	Some 	of 	the 	pertinent
portions 	of 	that 	agreement 	are 	as 	follows:
... 	it 	is 	agreed 	that 	up 	to 	six 	(6) 	AFT
team members 	who 	are 	employees 	of 	the
University will 	be 	released 	without 	loss 	of
pay 	from 	work 	assignments 	which 	are
scheduled 	by 	the 	University 	in 	order 	to
attend 	meet 	and 	confer 	sessions 	... 	For
the 	six 	(6) 	Union 	representatives 	on 	paid
released 	time 	their 	status 	shall 	be 	without
loss 	of 	salary 	and 	benefits 	only 	for 	the
time 	spent 	at 	scheduled 	negotiating
sessions, 	including 	reasonable 	travel 	time.
Costs 	associated 	with 	this 	no 	loss 	of 	pay
and 	benefits 	shall 	be 	borne 	by 	the
University 	... 	The 	assignments 	from which
the 	team 	members 	are 	released 	shall 	be
limited 	to 	those 	for 	which 	the 	team 	members
would 	have 	been 	scheduled 	to 	work 	had 	he 	or
she 	not 	been 	released 	from 	his 	or 	her
scheduled 	work 	assignments 	.
According 	to 	Robert 	Bickal, 	whose 	testimony 	I 	credit 	in
this 	regard, 	the 	authorization 	for 	released 	time 	was 	a 	creature
of 	the 	ground 	rules 	and, 	by 	virtue 	of 	the 	agreement, 	the 	UCAFT
bargaining 	team was 	automatically 	authorized 	to 	miss 	their
assignments 	during 	dates 	meetings 	were 	scheduled 	and 	during
their 	travel 	period 	to 	and 	from 	those 	meetings. 	Bickal 	thus
notified 	the 	UCLA 	campus, 	for 	example, 	that 	Marde 	Gregory 	was
26originally, 	the 	parties 	met 	every 	other 	Thursday 	and
Friday. 	The 	"two-day" 	meetings 	were 	considered 	to 	be 	one
session.
59

to 	be 	released 	in 	such 	a 	way 	that 	she 	could 	participate 	at 	the
bargaining 	table 	on 	every 	other 	Thursday 	and 	Friday 	and, 	when
sessions 	were 	scheduled 	more 	regularly, 	on 	every 	Thursday 	and
Friday.
The 	actual 	dispute 	between 	UCAFT 	and 	the 	University
throughout 	the 	negotiations 	was 	about 	whether 	the 	latter 	was
obligated 	to 	bargain 	over 	the 	arrangements 	to 	adequately 	cover
courses 	while 	the 	lecturers 	were 	away 	at 	the 	bargaining 	table.
At 	the 	beginning, 	the 	Union 	took 	the 	position 	that 	the 	use 	of
substitutes 	was 	not 	an 	effective 	way 	to 	cover 	the 	classes, 	that
it 	was 	inappropriate, 	and 	not 	in 	the 	tradition 	of 	the
University. 	The 	UCAFT 	insisted 	that 	the 	appropriate 	thing 	to
do 	when 	course 	schedules 	partially 	conflicted 	with 	bargaining
dates 	was 	to 	release 	the 	instructor 	from 	all 	responsibility 	for
that 	course 	for 	the 	entire 	term. 	This 	concept 	was 	referred 	to
as 	"course 	relief." 	Under 	this 	concept, 	if 	one 	of 	Gregory's
courses:·was 	scheduled 	to-meet 	on 	Tuesdays and 	Thursdays, 	she
would 	simply 	be 	released 	from 	all 	responsibility 	for 	the 	course
because 	bargaining 	sessions 	were 	held 	on 	Thursdays 	and 	Fridays.
The 	University's 	position was 	also 	persistently 	stated 	at
the 	bargaining 	table. 	It 	asserted 	that 	substitutes 	had, 	in
fact, 	been 	used 	to 	cover 	classes 	in 	the 	past 	and, 	in 	some
cases, 	their 	use 	might 	be 	appropriate. 	It 	added 	that, 	although
course 	relief 	might 	be 	appropriate 	under 	certain 	circumstances,
to 	automatically 	relieve 	a 	faculty 	member 	of 	all 	responsibility
for 	a 	course, 	regardless 	of 	its 	nature 	and 	the 	extent 	of
interference 	between 	the 	bargaining 	schedule 	and 	the 	schedule
60

of 	instruction was 	inappropriate. 	Bickal 	explained 	that, 	under
the 	Union's 	philosophy, 	it 	was 	conceivable 	that 	a 	lecturer
might 	only 	be 	scheduled 	to 	teach 	one 	course 	and, 	if 	it
partially 	conflicted 	with 	bargaining, 	the 	instructor 	would 	be
relieved 	from 	all 	employment 	responsibilities 	for 	that 	term.
Additionally, 	Bickal 	repeatedly 	stated 	that 	the 	University
was 	only 	obligated 	under 	HEERA 	to 	provide 	reasonable 	released
time. 	But, 	he 	added, 	the 	decision 	as 	to 	who 	would 	decide 	how
classes 	were 	going 	to 	be 	covered 	absolutely 	rested 	in 	the
academic 	departments, 	and 	was 	not 	within 	the 	scope 	of
. 	.
b argaining. 27
The 	positions 	outlined 	above 	were 	articulated 	during
initial 	sessions 	and 	continued 	to 	be 	a 	source 	of 	controversy
notwithstanding 	the 	agreement 	on 	ground 	rules. 	There 	existed
various 	other 	philosophical 	and 	legal 	differences 	about 	matters
related 	to 	released 	time. 	For 	example, 	the 	UCAFT's 	objection
to 	the 	use 	of 	subsitutes 	to 	cover 	classes 	was 	accompanied 	by
Gregory's 	strongly worded 	assertion 	that 	the 	UCAFT 	was 	not
willing 	to 	sacrifice 	course 	integrity, 	student 	protection 	and
27nuring 	her 	testimony, 	Marde 	Gregory 	consistently made
reference 	to 	arrangements 	for 	the 	coverage 	of 	classes 	due 	to
released 	time 	and 	to 	actual 	release 	time 	as 	one 	concept. 	Thus,
when 	she 	testified 	about 	requests 	for 	released 	time, 	she 	lumped
together 	requests 	for 	specific 	arrangements 	for 	the 	coverage 	of
classes 	with 	requests 	for 	time 	off 	for 	negotiations. 	She 	also
referred 	to 	them 	generally 	as 	''release 	time 	arrangements."
61

the 	quality 	of 	education. 	Thus, 	the 	Union 	advocated 	language
that 	stated 	that 	released 	time 	would 	be 	accomodated 	in 	such 	a
way 	as 	not 	to 	interfere 	with 	the 	effectiveness 	of 	the
educational 	programs 	and 	the 	students' 	progress.
Additionally, 	the 	parties 	differed 	over 	where 	the
arrangements 	to 	cover 	classes 	due 	to 	released 	time 	should 	be
made. 	The 	UCAFT 	orginally 	asserted 	that 	they 	be 	dealt 	with 	at
the 	systemwide 	bargaining 	table. 	Later, 	it 	took 	the 	position
that, 	because 	it 	was 	the 	Academic 	Senate's 	delegated
responsibility 	to 	provide 	for 	the 	quality 	of 	the 	courses, 	the
decision 	as 	to 	the 	coverage 	arrangements 	should 	be 	left 	to 	the
Academic 	Senate 	in 	consultation with 	the 	instructor. 	The 	UCAFT
believed 	that, 	because 	the 	instructors 	were 	ultimately
responsible 	for 	the 	quality 	of 	instruction 	in 	their 	courses,
they 	were 	the 	appropriate 	individuals 	who 	should 	decide 	which
release 	time 	coverage 	arrangements 	were 	consistent 	with 	the
educational 	mission.
Although 	the 	University 	asserted 	that 	the 	coverage 	of
courses 	due 	to 	a 	lecturer's 	release 	was 	strictly 	an 	academic
decision 	residing 	within 	each 	department, 	it 	had 	no 	problems
with 	allowing 	bargaining 	team members 	to 	have 	the 	opportunity
to 	consult 	with 	the 	administration 	over 	the 	coverage
arrangements 	made 	to 	accornodate 	released 	time. 	It 	was 	its
position 	that 	those 	arrangements 	were 	appropriately 	to 	be 	made
at 	the 	campus 	level.
62

Consequently, 	the 	following 	language 	was 	included 	in 	the
ground 	rules 	of 	June 	29:
Through 	the 	course 	of 	these 	negotiations 	the
University, 	in 	consultation 	with 	the 	AFT
team member, 	will 	take 	responsibility 	for
developing 	a 	work 	schedule 	which 	will
accomodate 	the 	need 	for 	released 	time 	for
scheduled 	meet 	and 	confer 	sessions 	and
reasonable 	travel 	time 	for 	each 	of 	the 	six
(6) 	AFT 	team members 	eligible 	for 	paid
released 	time.
The 	parties 	agree 	that 	it 	is 	their 	intent
that 	the 	purposes 	of 	this 	provision 	be
fulfilled 	in 	such 	a 	way 	so 	as 	not 	to
interfere 	with 	the 	effectiveness 	of 	the
instructional 	program 	or 	the 	progress 	of 	the
students 	which 	it 	serves.
Rather 	than 	clarifying 	each 	parties' 	rights 	and
obligations, 	the 	above 	language 	created 	more 	disputes, 	during
bargaining 	as 	well 	as 	during 	the 	unfair 	practice 	hearing, 	over
its 	interpretation 	and 	implementation. 	Gregory 	insisted 	that
the 	reference 	to 	"the 	University" 	in 	the 	first 	paragraph 	meant
that 	the 	released 	time 	coverage 	arrangements 	were 	to 	be 	dealt
with 	at 	the 	bargaining 	table. 	Accordingly, 	she 	protested
having 	to 	deal 	about 	her 	own 	arrangements 	through 	Neil 	Malamuth
when 	he 	became 	chair 	of 	the 	Speech 	Department 	and 	the 	CS
Program.
The 	Union 	also 	took 	issue 	with 	the 	University's 	repeated
refusals 	at 	the 	bargaining 	table 	to 	designate 	the 	specific
"appropriate 	academic 	officer" 	on 	each 	campus 	who 	was 	to
officially 	advise 	each 	AFT 	team member 	of 	his/her 	released 	time
63

arrangements. 	The 	University 	had 	agreed, 	at 	the 	June 	29
session, 	that 	"an 	appropriate 	academic 	officer" 	would 	provide
such 	notice.
The 	concept 	delineated 	in 	the 	second 	paragraph 	of 	the
above-quoted 	provision 	was 	also 	in 	constant 	dispute 	at 	the
bargaining 	sessions. 	The 	UCAFT 	claimed 	that 	instructors 	were
in 	the 	best 	position 	to 	determine 	the 	effectiveness 	of 	the
instructional 	program, 	and 	not 	the 	academic 	administration.
The 	University 	persisted 	in 	its 	view 	that, 	although 	instructors
would 	have 	input 	as 	to 	course 	coverage 	in 	their 	absence, 	the
University, 	through 	each 	academic 	department, 	was 	ultimately
responsible 	for 	the 	way 	instruction was 	delivered.
Beginning 	with 	the 	bargaining 	session 	of 	December 	13, 	1984,
the 	UCAFT 	stated 	that 	because 	certain 	Academic 	Senate
regulations 	(that 	were 	promulgated 	pursuant 	to 	powers 	delegated
from 	the 	Regents) 	charged 	officers 	of 	instruction with 	the
responsibility 	for 	the 	integrity 	of 	their courses~ 	and 	becaus
lecturers 	were 	officers 	of 	instruction, 	released 	time
resolutions 	therefore 	had 	to 	come 	through 	discussions 	with 	the
Academic 	Senate. 	The 	regulation 	relied 	upon 	in 	making 	this
assertion 	is 	section 	750(A) 	of 	the 	Regulations 	of 	the 	Academic
Senate, 	which 	reads 	as 	follows:
Only 	regularly 	appointed 	officers 	of
instruction 	holding 	appropriate
instructional 	titles 	may 	have 	substantial
responsibility 	for 	the 	content 	and 	conduct
of 	courses 	which 	are 	approved 	by 	the
Academic 	Senate.
64

Although 	there 	was 	no 	testimony· that 	the 	above 	language 	was
meant 	to 	give 	lecturers 	the 	primary 	and/or 	ultimate
responsibility 	for 	the 	integrity 	of 	the 	course, 	the 	UCAFT
asserted 	that 	view 	in 	its 	many 	attempts 	to 	secure 	"course
release" 	for 	its 	negotiating 	team 	and, 	particularly, 	for 	Marde
Gregory. 	One 	of 	the 	arguments 	was 	that 	the 	frequent 	use 	of
substitutes 	in 	place 	of 	the 	instructors, 	was 	disruptive 	of
courses 	and, 	as 	a 	result, 	caused 	students 	to 	look 	with 	disfavor
upon 	the 	lecturer. 	Then, 	when 	the 	time 	came, 	their 	disfavor
would 	be 	manifested 	in 	student 	course 	evaluations, 	which 	in
turn were 	often 	factors 	in 	administrative 	decisions 	of 	whether
to 	reappoint 	lecturers 	for 	additional 	terms 	and/or 	whether 	or
not 	to 	approve 	merit 	salary 	increases. 	Student 	course
evaluations 	were 	allegedly 	the 	only 	regular 	device 	for 	the
appraisal 	of 	lecturer 	performance.
The 	University's 	interpretation 	of 	the 	Academic 	Senate
regulation 	in 	question was,that,the 	responsibility for,cours
quality 	and 	content 	rested 	in 	the 	academic 	departments. 	The
individual 	ultimately 	responsible 	for 	course 	integrity was
thus, 	the 	department 	chairperson.
As 	a 	result 	of 	the 	various 	theoretical 	differences 	between
the 	parties 	as 	outlined 	above, 	a 	great 	deal 	of 	negotiation 	time
was 	expended 	dealing 	with 	released-time 	related 	issues. 	For
example, 	it 	was 	not 	uncommon 	for 	the 	Union's 	released 	time
requests 	to 	be 	accompanied 	by written 	claims 	for 	funding 	to
65

cover 	costs 	of 	audio-visual 	materials, 	guest 	speakers, 	etc.
Requests 	that 	the 	University 	reimburse 	academic 	departments
housing 	lecturers 	who 	were 	released 	for 	bargaining 	were 	brought
to 	the 	negotiations 	table. 	Often, 	when 	the 	released 	time
coverage 	arrangements 	were 	not 	handled 	in 	a 	timely 	manner 	at
the 	campus 	level, 	Gregory 	brought 	the 	problems 	to 	the
bargaining 	table 	for 	resolution.
In 	addition, 	as 	disagreements 	persisted, 	both 	parties
"threatened" 	to 	schedule 	future 	bargaining 	sessions 	on 	weekends
and/or 	during 	days 	that 	courses 	were 	not 	scheduled 	for
lecturers. 	Although 	Gregory's 	testimony 	indicates 	that 	the
UCAFT 	repeatedly 	proposed 	negotiating 	on weekends 	and 	was
turned 	down 	each 	time, 	upon 	closer 	scrutiny, 	none 	of 	these 	were
actual 	"proposals." 	Neither 	side 	proposed 	that 	a 	specific
future 	meeting 	date 	be 	on 	any 	particular 	weekend. 	Instead, 	a
typical 	"proposal" 	was 	to 	the 	effect 	that, 	"if 	we 	don't 	resolve
· the 	released-time 	arrangements• soon, 	we' 11 .have 	to 	meet 	on
weekends." 	These 	did 	not 	call 	for 	acceptance 	or 	rejection.
The 	University 	bargaining 	team, 	while 	expressing 	the 	view
that 	it 	would 	help 	resolve 	these 	problem 	areas, 	never 	waived
its 	assertion 	that 	coverage 	of 	classes 	due 	to 	released 	time 	was
the 	domain 	of 	the 	University 	academic 	administration. 	Although
it 	refused 	to 	grant 	course 	relief 	as 	a 	solution 	to 	coverage
problems 	in 	all 	circumstances, 	it 	did 	grant 	course 	relief 	in 	a
couple 	of 	instances, 	including 	course 	relief 	for 	lecturers
66

Marde 	Gregory 	and 	Roz 	Spafford. 	With 	respect 	to 	requests 	for
reimbursement 	of 	departments 	due 	to 	released 	time, 	Bickal
responded 	that 	the 	funding 	for 	released 	time 	was 	a 	management
problem, 	and 	not 	bargainable.
2. 	Released 	Time 	for 	Marde 	Gregory
Scheduling 	conflicts 	regarding 	released 	time 	for 	the 	spring
quarter 	of 	1984 	were 	virtually 	nonexistent, 	largely 	because
negotiations 	started 	toward 	the 	end 	of 	that 	quarter 	and 	when
the 	parties 	were 	just 	beginning 	to 	discuss 	proposals 	on 	ground
rules. 	The 	only UCAFT 	team member 	who 	was 	unable 	to 	attend 	the
May 	sessions 	was 	Gary Adest, 	inasmuch 	as 	his 	teaching 	load
spilled 	over 	into 	Thursdays 	and 	Fridays. 	The 	Union 	agreed 	to
hold 	these 	meetings 	in 	Adest's 	absence. 	Marde 	Gregory 	taught
during 	the 	summer 	of 	1984. 	The 	parties 	agreed 	to 	accomodate
her 	schedule 	by 	arranging 	summer 	negotiation 	sessions 	around
her 	classes.
For 	the 	fall 	quarter 	of 	1984, 	Gregory 	requested 	(on
6/28/84) 	to 	be 	released 	from 	her 	Student 	Affairs 	Officer
position 	for 	10 	hours 	every 	other 	week. 	The 	request 	was
granted. 	She 	made 	a 	request 	to 	be 	released 	from 	the 	identical
responsibilities 	for 	the 	following 	(winter) 	quarter. 	That
request 	was 	also 	granted.
For 	the 	spring 	quarter 	of 	1985, 	Gregory 	requested 	to 	be
released 	from 	teaching 	one 	full 	course 	and 	from 	some 	hours 	as
SAO. 	Although 	this 	request 	was 	ultimately 	granted, 	the 	UCAFT
67

claims 	that 	the 	way 	it 	was 	handled 	amounted 	to 	harassment 	and
bad 	faith 	on 	the 	part 	of 	the 	University. 	The 	incidents
surrounding 	this 	issue 	will 	be 	described 	in 	detail 	below.
According 	to 	Gregory's 	testimony, 	for 	the 	summer 	of 	1985,
the 	choice 	was 	either 	to 	ask 	for 	released 	time 	and 	bargain
through 	her 	summer 	schedule, 	or, 	once 	again 	to 	take 	a 	hiatus
from 	the 	negotiations 	so 	that 	she 	could 	teach. 	The 	Union 	and
the 	University 	jointly 	decided 	to 	take 	the 	hiatus, 	even 	though
Bickal 	felt 	it 	would 	inconvenience 	the 	University's 	team, 	so
that 	Gregory's 	schedule 	could 	be 	accomodated.
During 	June 	1985, 	Gregory 	submitted 	an 	oral 	request 	that
she 	be 	released 	eight 	hours 	per 	week 	from 	her 	SAO 	position
during 	the 	fall 	1985 	quarter. 28 Prior 	to 	the 	beginning 	of
the 	quarter, 	she 	received 	a 	letter 	from 	the 	dean 	advising 	that
her 	request 	was 	granted. 	In 	sum, 	Gregory was 	granted 	all 	of
the 	released 	time 	she 	requested 	in 	each 	instance.
(a) 	The 	Spring 	Quarter 	1985 	Request 	and 	CS 	185
As 	noted 	above, 	Gregory's 	request 	for 	the 	spring 	1985
quarter 	was 	to 	be 	released 	from 	teaching 	one 	speech 	course 	and
10 	hours 	every 	other 	week 	from 	her 	SAO 	position. 	It 	was
submitted 	in 	writing 	some 	time 	during 	the 	second 	week 	of
November 	1984. 	Gregory 	needed 	the 	extra 	time 	off 	because 	she
28nuring 	the 	summer, 	it 	had 	been 	agreed 	that, 	instead 	of
scheduling 	sessions 	every 	other 	week, 	they would 	be 	occurring
every 	Thursday 	and 	Friday.
68

was 	committed 	to 	teach 	an 	additional 	section 	of 	Speech 	1 	in
order 	to 	fulfill 	her 	50% 	time 	contract 	for 	an 	eight-course
annual 	courseload.
Consistent 	with 	its 	view 	that 	course 	relief 	might 	be
appropriate 	under 	certain 	circumstances 	but 	not
across-the-board, 	Neil 	Malamuth 	(now 	serving 	as 	chair 	of
Speech) 	was 	asked 	(by Dean Morris) 	to 	ascertain 	whether 	course
relief 	was 	necessary, 	or 	whether 	an 	alternative 	was 	feasible.
In 	a 	letter 	to 	Gregory 	dated 	December 	11, 	1984, 	Morris 	informed
her 	that 	Malamuth 	would 	be 	discussing 	spring 	released 	time
arrangements 	with 	her.
Accordingly, 	sometime 	in 	mid-December 	1984, 	Malamuth 	met
with 	Gregory 	to 	discuss 	her 	request 	for 	the 	spring 	1985
quarter. 	The 	testimony 	of 	Malamuth 	and 	Gregory 	as 	to 	what
occurred 	at 	that 	meeting 	was 	in 	sharp 	conflict 	in 	key 	areas.
According 	to 	Gregory, 	Malamuth 	told 	her 	that 	the 	University
was 	not-interested 	in 	allowing 	full 	c9urse 	relief 	and 	asked.
whether 	there 	was 	any 	other 	rationale 	by which 	he 	could 	release
her 	from 	that 	course. 	Gregory 	replied 	in 	the 	affirmative,
explaining 	that 	the 	previous 	chair, 	Paul 	Rosenthal, 	had 	given
her 	one 	course 	off 	every 	other 	year 	in 	exchange 	for 	her
services 	as 	administrative 	coordinator 	for 	Speech 	1 	and 	2
classes.
Gregory 	testified 	that 	Malamuth 	then 	brought 	up 	the 	issue
of 	CS 	185, 	saying 	that 	the 	arrangement 	whereby 	Gregory was 	paid
69

as 	an 	SAO 	(staff 	position), 	yet 	was 	required 	to 	teach 	a 	class
(CS 	185} 	was 	an 	embarassment 	to 	the 	deans. 	Malamuth 	allegedly
indicated 	that 	Gregory's 	previous 	arrangement 	with 	Rosenthal 	to
take 	one 	course 	off 	every 	other 	year 	might 	be 	a 	solution 	to 	the
problem.
According 	to 	Gregory, 	she 	had 	a 	second 	meeting 	with
Malamuth 	in 	January 	1985. 	At 	this 	meeting, 	Malamuth 	allegedly
told 	her 	it 	was 	possible 	for 	Gregory 	to 	be 	granted 	her 	request
on 	two 	"bases": 	(1) 	on 	the 	basis 	that 	it 	had 	been 	granted 	in
previous 	years 	and 	this 	was 	a 	year 	it 	was 	scheduled 	to 	fall 	oni
(2} 	if 	she 	agreed 	to 	allow 	him 	to 	sit 	in 	on 	every 	one 	of 	her 	CS
185 	class 	sessions 	during 	the 	winter 	quarter 	and 	allow 	him 	to
teach 	that 	course 	in 	the 	spring 	quarter.
Gregory 	supposedly 	protested 	that 	Malamuth was 	trying 	to
remove 	her 	from 	a 	course 	she 	was 	uniquely 	qualified 	to 	teach.
She 	said 	she 	was 	able 	to 	fulfill 	her 	bargaining
responsibilities 	without 	giving 	up 	the 	course." 	According 	to
her, 	Malamuth 	refused 	to 	concede 	and 	demanded 	that 	Gregory
invite 	him 	in 	writing 	to 	attend 	her 	winter 	CS 	185 	course 	and 	to
teach 	the 	course 	in 	the 	spring 	in 	exchange 	for 	her 	released
time.
Gregory 	added 	that, 	after 	this 	meeting, 	she 	submitted 	her
requests 	in 	writing 	under 	protest 	(Exhibit 	47). 	She 	was
thereafter 	released 	from 	the 	one 	course 	in 	addition 	to
receiving 	time 	off 	from 	her 	SAO 	position.
70

The 	undisputed 	testimony 	indicates 	that 	Malamuth 	did 	not
attend 	all 	of 	the 	winter 	CS 	185 	class 	sessions 	and 	did 	not 	take
the 	course 	from 	Gregory 	for 	the 	spring 	quarter. 	He 	attended 	a
few 	sessions, 	during 	which 	he 	complimented 	Gregory 	in 	the
presence 	of 	her 	students 	for 	her 	handling 	of 	the 	course. 	He
had 	made 	plans 	to 	have 	another 	professor 	teach 	the 	course 	for
the 	spring 	in 	case 	Gregory 	did 	not 	do 	so, 	but 	it 	turned 	out 	to
be 	unnecessary.
According 	to 	Gregory, 	Malamuth 	told 	her 	in 	February 	that 	he
was 	going 	to 	propose 	she 	teach 	CS 	185 	on 	the 	same 	basis 	as
before. 	By memo 	dated 	March 	21, 	1985, 	Malamuth 	confirmed 	that
Gregory was 	responsible 	for 	teaching 	the 	course 	for 	the
upcoming 	spring 	quarter.
Malamuth 	testified 	that, 	during 	the 	December 	1984 	meeting
with 	Gregory, 	she 	seemed 	defensive 	and 	upset 	over 	the 	fact 	that
Malamuth 	was 	involved 	in 	the 	negotiation 	of 	released 	time
issues. 	Previous 	communications·over 	the 	subject 	had 	come
Gregory 	through 	either 	Bob 	Bickal 	or 	Dean Morris.
A conflict 	had 	developed 	over 	Gregory's 	teaching 	of 	the
additional 	speech 	course. 	At 	the 	time 	of 	the 	meeting, 	Gregory
was 	scheduled 	to 	teach 	one 	speech 	course 	on Mondays 	and
Wednesdays 	from 	11:00 	a.m. 	to 	1:00 	p.m. 	She 	was 	scheduled 	to
teach 	the 	second 	speech 	course 	on 	Tuesdays 	and 	Thursdays 	from
3:00 	p.m. 	to 	5:00 	p.m.
Yet 	Gregory was 	the 	person 	responsibile 	for 	scheduling 	her
own 	classes. 	She 	had, 	sometime 	during 	the 	preceding 	October,
71

scheduled 	herself 	to 	be 	teaching 	that 	second 	speech 	course 	on
Mondays 	and 	Wednesdays. 	Between 	October 	and 	December, 	she 	had
arranged 	with 	administrative 	assistant 	Jennifer 	Dowling 	to
change 	the 	course 	to 	a 	Tuesday-Thursday mode, 	putting 	it 	in
direct 	conflict 	with 	the 	bargaining 	schedule. 29
During 	the 	meeting 	in 	December, 	in 	addition 	to 	exploring
alternatives 	to 	full 	course 	relief, 	Malamuth 	questioned 	the
change 	and 	asked 	and 	why 	she 	could 	not 	revert 	back 	to 	a
Monday/Wednesday 	schedule 	in 	order 	to 	avoid 	a 	direct 	conflict
with 	bargaining. 	According 	to 	Malamuth, 	Gregory 	never 	gave 	a
clear 	answer 	about 	her 	schedule 	change. 	Instead, 	she 	told 	him
that 	a 	Monday/Wednesday 	schedule 	would 	not 	allow 	her 	to 	catch
an 	airline 	flight 	to 	Oakland 	in 	time 	to 	be 	at 	negotiations 	for
Thursdays.
By Malamuth's 	account, 	Gregory 	then 	told 	him 	that 	course
relief 	was 	available 	under 	the 	rationale 	that 	Rosenthal 	had 	a
practice 	of 	releasing 	her 	from 	one 	speech 	course 	every 	other
year 	in 	exchange 	for 	her 	administrative 	tasks 	with 	the 	Speech
Department. 	Gregory 	also 	told 	Malamuth 	that, 	if 	the 	course
relief 	was 	not 	granted, 	she 	might 	not 	be 	willing 	to 	teach 	the
29Gregory 	later 	conceded 	that 	she 	may well 	have 	initiated
the 	change 	to 	a 	Tuesday/Thursday mode.
72

CS 	185 	course, 	since 	it 	was 	never 	really written 	anywhere 	that
she 	had 	to 	do 	it. 30
Puzzled 	by 	Gregory's 	responses, 	Malamuth 	inquired 	and
concluded 	that, 	indeed, 	there 	were 	available 	flights 	to 	Oakland
from 	Los 	Angeles 	after 	5:30 	p.m. 	He 	then 	requested, 	by memo
dated 	December 	27, 	1984, 	that 	Gregory 	detail 	her 	desire 	for
course 	relief 	in writing. 	(Exhibit 	II.)
Malamuth 	had 	a 	second 	meeting 	with 	Gregory, 	according 	to
him, 	whereby 	he 	told 	her 	he 	had 	checked 	the 	airline 	schedules
and 	wondered 	why 	she 	could 	not 	take 	a 	later 	flight 	to 	Oakland
to 	attend bargaining. 	Gregory 	responded 	that 	the 	Union
required 	her 	to 	take 	Air 	Cal 	because 	of 	some 	ticket 	arrangement
and 	the 	last 	Air 	Cal 	flight 	on Wednesdays 	was 	at 	5:30 	p.m. 31
Gregory's 	testimony 	on 	cross 	examination 	indicated 	that
Malamuth 	offered 	to 	look 	into 	the 	possibility 	of 	having 	the
University make 	up 	the 	difference 	between 	the 	discount 	ticket
rate 	and 	the 	rate 	of 	another 	airline with 	available 	flights~
Gregory 	turned 	down 	the 	request, 	replying 	that 	such 	an
arrangement 	was 	"improper 	and 	inappropriate."
30At 	the 	time 	of 	the 	meeting, 	the 	CS 	185 	course 	was 	not
scheduled 	to 	be 	taught 	at 	a 	time 	that 	conflicted 	with 	the
negotiations 	schedule.
31The 	Air 	Cal 	flight 	schedule 	effective 	at 	the 	relevant
time 	(Exh. 	A) 	indicates 	that 	there 	was 	a 	flight 	available 	at
8:15 	p.m. 	Gregory 	testified 	that 	she 	told 	Malamuth 	that 	it
left 	at 	6:30 	p.m.
73

Thinking 	that 	he 	had 	better 	make 	contingency 	plans 	in 	case
Gregory 	decided 	not 	to 	teach 	the 	CS 	185 	course 	in 	the 	spring,
Malamuth 	asked 	her 	if 	she 	would 	mind 	his 	sitting 	in, 	from 	time
to 	time, 	on 	some 	sessions 	during 	the 	winter 	quarter. 	Malamuth
knew 	very 	little 	about 	the 	course 	and 	thought, 	if 	Gregory
refused 	to 	teach 	it, 	either 	he 	or 	someone 	else 	in 	the 	program
might 	need 	to 	teach 	it. 	According 	to 	him, 	Gregory 	said 	she
would 	welcome 	it 	and 	was 	very 	encouraging 	about 	his 	sitting 	in
on 	the 	course.
He 	denied 	insisting 	that 	he 	be 	allowed 	to 	sit 	in 	on 	the
entire 	course, 	and 	teaching 	it 	in 	the 	spring, 	as 	the 	price 	for
approving 	her 	release 	from 	the 	other 	Speech 	course. 	He 	also
denied 	that 	the 	course 	relief 	was 	granted 	under 	the 	rationale
that 	Gregory 	had 	historically 	been 	relieved 	from 	the 	course 	by
Rosenthal, 	rather 	than 	under 	the 	rationale 	that 	the 	speech
class 	conflicted with 	bargaining.
For 	various 	reasons,·· Malamuth' s 	account 	is 	credited 	over
Gregory's. 	First, .;Gregory was 	very 	unresponsive 	and 	unclear
when 	cross-examined 	about 	what 	she 	told 	Malamuth 	regarding
flight 	schedules. 	According 	to 	her, 	she 	told 	him 	that 	the 	last
flight 	departed 	for 	Oakland 	at 	6:30 	p.m. 	Yet 	the 	airline
schedule 	indicates 	no 	flight 	leaving 	at 	that 	time, 	but 	it 	does
show 	flights 	departing 	at 	5:30 	p.m. 	and 	8:15 	p.m. 	After 	a
break 	during 	cross-examination, 	wherein 	she 	acknowledged 	that
she 	looked 	at 	a 	flight 	schedule, 	she 	appeared 	increasingly
confused.
74

In 	addition 	to 	the 	above, 	it 	is 	clear 	that, 	in 	quarters
previous 	to 	the 	spring 	of,1985, 	Gregory 	had 	taught 	a 	speech
course 	from 	3:00 	to 	5:00 	p.m.~on 	Wednesdays 	with 	no 	indication
that 	the 	schedule 	posed 	a 	problem with 	flight 	arrangements.
(Seep. 	2 	of 	Exh. 	41 	and 	Exh. 	47.) 	There 	is 	no 	evidence 	that
she 	had 	previously 	complained 	about 	this 	or 	any 	related
problems 	to 	anyone 	in 	the 	administration, 	including 	Bickal.
In 	describing 	her 	December 	conversation with Malamuth, 	she
made 	no 	reference 	to 	the 	dispute 	over 	flight 	schedules. 	It 	was
acknowledged 	for 	the 	first 	time 	when 	she 	was 	confronted 	with 	it
on 	cross-examination. 	The 	same 	is 	true 	in 	regard 	to 	her
mention 	of, 	or 	failure 	to 	mention, 	the 	fact 	that 	it 	was 	at 	her
own 	initiative 	that 	her 	additional 	speech 	course 	was 	altered 	in
such 	a 	way 	as 	to 	conflict 	with 	the 	negotiations 	schedule.
Gregory's 	testimony 	that 	Malamuth 	suggested 	that 	the
University would 	pay 	the 	difference 	between 	her 	discount
airfare 	and 	the 	fare 	she would 	have 	to 	pay 	if 	she :took 	a. late,;i;11i,y11;, ..
flight 	is 	inconsistent 	with 	her 	theory 	of 	harassment.
Similarly 	inconsistent 	is 	Gregory's 	account 	that 	Malamuth
told 	her 	that 	she 	was 	required 	to 	invite 	him 	in 	writing 	to 	sit
in 	on 	her 	CS 	185 	course 	and 	to 	allow 	him 	to 	teach 	the 	course 	in
exchange 	for 	the 	grant 	of 	released 	time. 	There 	is 	no 	evidence
that 	Malamuth 	needed 	to 	be 	invited 	by 	Gregory 	for 	the 	alleged
purpose. 	Malamuth 	sat 	in 	on 	courses 	of 	two 	other 	lecturers,
and 	there 	is 	a 	lack 	of 	evidence 	that 	he 	was 	invited 	to 	do 	so.
75

Gregory's 	memo 	of 	January 	14, 	1985 	(Exhibit 	47), 	both 	from 	the
circumstances 	and 	on 	its 	face, 	indicates 	that 	it 	was 	not
written 	pursuant 	to 	Malamuth's 	demand 	to 	teach 	the 	CS 	185
course, 	but 	rather 	in 	response 	to 	his 	written 	request 	of
December 	27, 	1984 	wherein 	he 	simply 	asked 	her 	to 	detail 	the
released 	time 	needs 	in 	writing.
Contrary 	to 	Gregory's 	assertion 	that 	her 	January 	14
invitation 	to 	Malamuth 	was 	"under 	protest," 	Malamuth's
testimony 	that 	she was 	upset 	at 	having 	to 	deal 	over 	released
time 	with 	him, 	is 	the 	more 	credible 	version 	and 	is 	supported 	by
the 	overall 	record. 	At 	the 	time 	of 	the 	December 	and 	January
meetings, 	witnesses 	were 	uniform 	in 	testifying 	that 	the 	Union's
position 	was 	that 	released 	time 	coverage 	arrangements 	should
take 	place 	at 	the 	systemwide 	bargaining 	table. 	The 	January 	14
memo 	by 	Gregory 	indeed 	states
.. 	Finally, 	I 	submit 	this 	memo 	directly 	to
you 	under 	protest, 	since 	it 	is 	the 	UC-AFT's
position 	that 	the 	University 	of 	California
Systemwide 	Offices 	are responsible 	for
release 	time 	under 	HEERA.
Likewise, 	the 	memo 	itself 	belies 	Gregory's 	testimony 	that
she 	was 	forced 	to 	invite Malamuth 	to 	sit 	in 	on 	her 	course 	in
writing. 	If 	he 	had 	coerced 	such 	a memo, 	it 	is 	highly 	unlikely
that 	she 	would 	have 	chosen 	to 	use 	such 	language 	as: 	"I 	am
delighted 	with 	your 	interest 	in my 	Field 	Studies 	in
Communication 	Studies 	course 	(CS 	185) "; 	"I 	am 	pleased 	that
your 	interest 	will 	permit 	you 	to 	attend 	the 	course 	this 	quarter
-v 	• 	• I·" 	"I'll 	be 	more 	than 	happy 	to 	assist 	in 	making 	any
76

necessary 	arrangements 	... "; 	"I'm most 	appreciative 	of 	your
understanding 	... " 	If 	Gregory 	was 	indeed 	protesting
Malamuth's 	coerced 	invitation; 	it 	would 	logically 	follow 	that
she 	would 	have 	indicated 	that 	the 	invitation 	was 	under 	protest
as 	she 	did 	indicate 	with 	respect 	to 	having 	to 	deal 	with
released 	time 	at 	the 	department 	level.
Gregory's 	testimony 	in 	other 	areas 	dealing 	with 	released
time 	leads 	the 	undersigned 	to 	discredit 	her 	version 	of 	the
events 	regarding 	CS 	185 	insofar 	as 	they 	conflict 	with
Malamuth's. 	When 	being 	cross-examined 	regarding 	released 	time
for 	the 	spring 	of 	1984, 	she 	testified 	that 	she 	requested 	it 	in
April 	1984 	in 	writing. 	Yet, 	the 	document 	she 	was 	referring 	to
(Exhibit 	40) 	clearly 	indicates 	that 	it 	was 	not 	a 	request 	for
released 	time, 	but 	a 	request 	for 	reimbursement.
She 	testified 	that, 	by mid-December 	1984, 	her 	requests 	for
released 	time 	for 	the 	winter 	quarter 	had 	not 	been 	answered.
She·later 	added 	that, 	bythe 	fall·negotiation session 	on
December 	13 	and 	14~ 1984, 	the 	Union 	team 	had 	not 	received 	word
of 	their 	released 	time 	for 	the 	next 	(winter) 	qu~rter. 	Yet, 	she
failed 	to 	qualify 	that 	testimony 	with 	the 	fact 	that 	Dean 	Morris
had 	written 	her 	a 	letter 	on 	December 	11, 	1984 	(exhibit 	HH)
stating 	the 	following:
Please 	be 	assured 	that 	during 	the 	coming
Winter 	Quarter 	(1984-1985) 	that 	you 	may 	have
release 	time 	for 	10 	hours 	every 	other 	week
77

from 	your 	Student 	Affairs 	Officer 	position
in 	order 	to 	participate 	in 	the 	scheduled
meet 	and 	confer 	sessions.
Her 	attempt 	t~ 	minimize 	the 	fact 	that 	the 	University
granted 	her 	spring 	1985 	request 	for 	course 	relief 	and 	time 	off
from 	the 	SAO 	duties 	upon 	the 	rationale 	that 	it 	was 	granted 	not
as 	"collective 	bargaining 	release" 	but 	as 	"administrative
release," 	is 	disingenuous 	and 	not 	supported 	by 	the 	record. 	The
credible 	evidence 	indicates 	Malamuth 	made 	a 	written
recommendation 	on 	February 	1, 	1985 	that 	Morris 	approve 	her
course 	relief 	on 	the 	sole 	basis 	that 	her 	current 	class 	schedule
conflicted with 	negotiations.
The 	fact 	that 	Malamuth 	could 	have, 	but 	chose 	not 	to, 	defeat
Gregory's 	request 	for 	course 	relief 	by mentioning 	to 	Morris 	the
flight 	schedule 	controversy 	and 	Gregory's 	role 	in 	scheduling
the 	speech 	class 	runs 	counter 	to 	her 	assertion 	of 	harassment.
The 	same 	is 	true 	with 	respect 	to 	favorable 	comments 	made 	by
Malamuth 	regarding 	Gr.egory 	in 	front 	of 	her 	students.
Malamuth's 	testimony, 	supported 	by 	documentation, 	indicates
that 	he 	asked 	Morris 	to 	approve 	Gregory's 	course 	relief 	request
on 	February 	1, 	1985, 	that 	he 	had 	earlier 	told 	her 	he 	expected
her 	to 	teach 	the 	CS 	185 	course 	in 	the 	spring, 	and 	that 	his
released 	time 	recommendation 	was 	approved 	by Morris 	sometime
prior 	to 	February 	22, 	1985 	(Exhibit 	KK), 	over 	one 	month 	prior
to 	the 	beginning 	of 	the 	spring 	quarter.
78

UCAFT's 	assertions 	that 	the 	University"s 	conduct 	in 	dealing
ith 	Gregory 	over 	released 	time 	coverage 	should 	be 	viewed 	as
harassment 	or 	bad 	faith, 	are 	not 	supported 	by the 	credible
testimony 	and 	the 	documentary 	evidence. 	There 	were 	problems
that 	arose 	at 	the 	table, 	such 	as 	legitimate 	complaints 	that
coverage 	arrangements 	were 	slow 	or 	untimely, 	that 	the 	Union
needed 	to 	know 	which 	University 	official 	with 	whom 	to 	deal
regarding 	coverage 	conflicts, 	and 	other 	similar
inconveniences. 	However, 	the 	evidence 	does 	not 	show 	these 	were
either 	parts 	of 	a 	deliberate 	plan 	or 	that 	they were 	created 	by
an 	unwillingness 	to 	deal 	in 	good 	faith, 	notwithstanding 	whether
released 	time 	coverage 	was 	legally within 	the 	scope 	of
representation 	under 	HEERA.
w
IV. 	DISCUSSION
Virtually 	every 	action 	taken 	by 	the 	University 	as 	described
in 	the 	Unfair 	Practice 	Charge 	is 	alleged 	as 	discriminatory
and/or 	retaliatory, 	as well 	a.s 	a 	breach .oLits 	bargaining,
obligation 	under 	the 	HEERA. 	The 	same 	conclusion 	is 	drawn 	by
UCAFT 	with 	respect 	to 	the 	unalleged 	violation 	regarding 	the
attempted 	removal 	of 	three 	FTE's 	from 	the 	Speech 	Department 	in
December 	1983.
A. 	The 	Legal 	Standard 	for 	357l(a) 	Violations
Section 	357l(a) 	of 	HEERA 	makes 	it 	unlawful 	for 	a 	higher
education 	employer 	to:
Impose 	or 	threaten 	to 	impose 	reprisals 	on
employees, 	to 	discriminate 	or 	threaten 	to
79

discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	[the 	Act].
The 	rights 	guaranteed 	by 	HEERA 	include 	the 	right 	to 	form, 	join
and 	participate 	in 	the 	activities 	of 	employee 	organizations.
In 	Novato 	Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	210, 	the 	Board 	set 	forth 	the 	standards 	to 	be 	applied 	in
cases 	where 	employers 	are 	alleged 	to 	have 	discriminated 	against
employees 	because 	of 	an 	exercise 	of 	rights 	protected 	by 	the
EERA. 	(See 	fn. 	41, 	infra.) 	The 	standard was 	found 	to 	be
equally 	applicable 	in 	deciding 	similar 	alleged 	violations 	of
HEERA, 	subsection 	357l(a) 	in 	California 	State 	University,
Sacramento 	(1982) 	PERB 	Decision 	No. 	211-H. 	Under 	the 	Novato
rule, 	the 	charging 	party 	has 	the 	burden 	of 	showing 	that 	the
protected 	conduct 	was 	a 	motivating 	factor 	in 	the 	employer's
decision 	to 	take 	adverse 	action. 	Evidence 	of 	such 	motivation
must 	often 	be 	circumstantial 	since 	direct 	proof 	is 	seldom
available. 	(See 	Republic 	Aviation• Corp. 	v. 	NLRB 	(1945) 	324.
U.S. 	793 	[16 	LRRM 	620] .) 	If 	the 	charging 	party 	can 	establish 	a
nexus 	between 	the 	protected 	activity 	and 	the 	adverse 	action,
the 	employer 	can 	still 	avoid 	a 	finding 	of 	wrongdoing 	by
demonstrating 	that 	it 	would 	have 	taken 	the 	action 	regardless 	of
the 	employee's 	participation 	in 	protected 	activity. 	Novato,
supra; 	see 	also, 	NLRB 	v. 	Transportation Management 	Corp. 	(1983)
462 	U.S. 	393, 	103 	S.Ct. 	2469 	[113 	LRRM 	2857]; 	Wright 	Line, 	A
Division 	of 	Wright 	Line, 	Inc. 	(1980) 	251 	NLRB 	No. 	150 	[105 	LRRM
1169].
80

In 	order 	to 	establish 	a 	prima 	facie 	case, 	the 	charging
party 	must 	first 	prove 	it 	was 	engaged 	in 	protected 	activity.
Next, 	it 	must 	eifablish 	that ~he 	employer 	had 	actual 	or 	imputed
knowledge 	of 	the 	protected 	activity. 	After 	these 	fundamental
requirements, 	circumstantial 	evidence 	of 	unlawful 	motivation
may 	be 	shown 	by, 	inter 	alia, 	an 	examination 	of 	the 	timing 	of
the 	alleged 	discriminatory 	conduct 	in 	relation 	to 	the 	exercise
of 	protected 	rights; 	inconsistent 	treatment 	of 	the 	alleged
discriminatee 	as 	compared 	with 	other, 	similarly 	situated
employees; 	a 	pretextual 	justification 	for 	the 	employer's 	action
which 	is 	either 	inconsistent 	or 	contradicted 	by 	the 	employer's
action 	or 	other 	objective 	evidence 	in 	the 	record 	when 	viewed 	in
its 	totality; 	a 	departure 	from 	established 	procedures 	and
standards 	when 	dealing 	with 	the 	alleged 	discriminatee; 	and 	a
perfunctory 	investigation 	of 	the 	contentions 	of 	the 	alleged
discriminatee. 	See 	Santa 	Paula 	School 	District 	(1985) 	PERB
Decision 	No. 	505.
1. 	The 	Removal 	of 	the 	Three 	Speech 	FTE's
A threshold 	question 	is 	presented 	as 	to 	whether 	the
University's 	conduct 	in 	seeking 	to 	remove 	three 	FTE's 	(used 	to
employ 	lecturers) 	in 	December 	1983 	can 	support 	a 	finding 	of 	a
separate 	violation, 	apart 	from 	its 	use 	in 	providing 	background
evidence 	of 	unlawful 	motivation 	for 	future 	events. 	Clearly,
the 	attempted 	removal 	was 	known 	by 	the 	Union 	more 	than 	six
months 	prior 	to 	the 	filing 	of 	the 	instant 	Charge 	(on
81

January 	23, 	1985) 	and 	there 	is 	no 	quarrel 	with 	the 	fact 	that
HEERA 	section 	3563.2(a) 	bars 	such 	claims 	as 	untimely 	as 	a
general 	rule.
However, 	the 	UCAFT 	asserts 	that 	it 	put 	the 	University 	on
notice, 	during 	its 	opening 	statements 	and 	throughout 	the
hearing, 	that 	it 	would 	put 	on 	evidence 	of 	the 	attempted 	FTE
removal. 	It 	did 	so 	without 	objection 	from 	the 	University. 	The
University 	failed 	to 	raise 	the 	statute 	of 	limitations 	defense,
and 	instead 	put 	on 	evidence 	of 	its 	own 	to 	oppose 	the
allegation. 	By 	these 	actions, 	the 	Union 	concludes 	that 	the
Respondent 	has 	waived 	its 	defense 	under 	section 	3563.2(a) 	and
that 	a 	separate 	violation 	on 	the 	issue 	can 	be 	found.
It 	is 	noted: 	that 	the 	complained-of 	conduct 	was 	not 	alleged
in 	the 	Charge 	or 	amended 	to 	the 	Complaint, 	it 	occurred 	more
than 	six 	months 	prior 	to 	the 	filing 	of 	the 	Charge, 	the 	parties
extensively 	litigated 	the 	issues, 	and 	that 	the 	Respondent 	did
not 	formally 	raise 	a 	statute-of-limitations 	defense 	prior 	to
the 	conclusion 	of 	the 	evidentiary 	portion 	of 	the 	proceeding. 32
The 	PERB 	has 	held 	that, 	like 	the 	analogous 	provisions 	of
the 	federal 	labor 	laws, 	its 	six-month 	statute 	of 	limitations 	is
not 	jurisdictional, 	and 	must 	therefore 	be 	pled 	as 	an
affirmative 	defense 	or 	it 	will 	be 	waived. 	Walnut 	Valley
32The 	Charging 	Party 	does 	not 	contend 	that 	it 	had 	no
knowledge 	of 	the 	conduct 	or 	that 	the 	statute 	of 	limitations
should 	be 	tolled.
82

Unified 	School 	District 	(1983) 	PERB 	Decision 	No. 	289, 	rev. 	den.
6/22/83, 	2 	Civ. 	68298. 	Because 	the 	FTE 	allegation was 	not 	pled
in 	the 	Charge, 	the 	Complaint 	nor 	in 	any 	amendments, 	however,
the 	University's 	duty 	to 	plead 	the 	affirmative 	defense 	in 	an
answer 	or 	by 	demurrer 	is 	inapplicable. 	The 	question 	remains 	as
to 	whether 	the 	Respondent 	may 	be 	estopped 	from 	raising 	the
defense 	now 	and, 	conversely, 	whether 	the 	Union 	is 	entitled 	to 	a
finding 	of 	a 	separate 	violation.
In 	Santa 	Clara 	Unified 	School 	District 	(1979) 	PERB 	Decision
No. 	104, 	the 	Board 	adopted 	the 	NLRB 	standard 	of 	examining
unalleged 	violations 	of 	the 	EERA. 	It 	will 	entertain 	such
unalleged 	violations 	where 	the 	conduct 	is 	intimately 	related 	to
the 	subject 	matter 	of 	the 	Complaint, 	where 	it 	is 	part 	of 	the
same 	course 	of 	conduct, 	where 	the 	issue 	is 	fully 	litigated, 	and
where 	the 	parties 	have 	had 	the 	opportunity 	to, 	examine 	and 	be
cross-examined 	on 	the 	issue. 	See 	also 	Eureka 	City 	School
'District 	(1985) 	PERB Decision 	No. 	481~ 	at 	p~.17.
With 	respect 	to 	the 	last 	two 	elements 	of 	the 	Santa 	Clara
test, 	it 	is 	found 	that 	the 	issue 	was 	fully 	litigated 	and 	that
the 	parties 	had 	the 	opportunity 	to, 	and 	did, 	examine 	and
cross-examine 	many witnesses 	on 	it. 	The 	record 	makes 	this
conclusion 	plain. 	However, 	contrary 	to 	the 	Charging 	Party's
assertion 	that 	the 	events 	in 	December 	1983 	were 	part 	of 	the
same 	course 	of 	anti-union 	conduct 	as 	those 	regarding 	the 	Sears
Plan 	and 	the 	harassment 	of 	Marde 	Gregory, 	the 	facts 	indicate 	no
83

relation 	or 	connection 	between 	the 	two. 	To 	borrow 	a 	phrase
from 	a 	recent 	California 	Court 	of 	Appeal 	case, 	the 	events 	in
1983 	were 	not 	"iritertwined with" 	allegations 	in 	the 	Complaint.
Agricultural 	Labor 	Relations 	Board 	v. 	United 	Farm Workers 	of
America, 	86 	Daily 	Journal 	D.A.R. 	3388, 	__ 	Cal.App.3d
(9/30/86).
Therefore, 	these 	allegations 	will 	not 	be 	entertained 	as
separate 	violations 	for 	which 	a 	remedy 	can 	be 	ordered. 	It
appears 	that, 	because 	the 	UCAFT 	never 	indicated 	that 	it 	was
seeking 	a 	remedy 	for 	the 	unalleged 	conduct, 	the 	counsel 	for 	the
University 	assumed 	that 	the 	evidence 	was 	being 	submitted 	as
background 	evidence 	only. 	Nevertheless, 	in 	keeping 	with 	PERB
precedent, 	evidence 	of 	misconduct 	outside 	the 	statutory 	period
may 	be 	received 	at 	a 	hearing 	as 	background 	in 	order 	to 	shed
light 	on 	the 	true 	character 	of 	events 	within 	the 	six-month
period. 	Sacramento 	City Unified 	School 	District 	(1982) 	PERB
Decision No. 	214, 	p. 	4, 	fn. 	4. 33
The 	UCAFT 	has 	argued 	that 	the 	University's 	conduct 	in 	1983
evinces 	union 	animus 	in 	that 	the 	attempted 	removal 	of 	the 	three
FTE's 	was 	motivated 	by 	its 	opposition 	to 	unionization 	of 	the
33 	Even 	if 	the 	removal 	of 	the 	FTE's 	were 	entertained 	as 	a
possible 	unfair 	practice, 	the 	fact 	that 	it 	was 	never
implemented 	suggests 	that 	no 	violation 	can 	be 	sustained.
Recently, 	in 	an 	interference 	case, 	the 	NLRB 	held 	that 	"action
taken 	in 	contemplation 	of 	committing 	an 	unfair 	labor 	practice
is 	not, 	without 	more, 	itself 	an 	unfair 	labor 	practice."
Resistance 	Technology, 	Inc. 	(1986) 	280 	NRLB 	No. 	117 	[122 	LRRM
1321,]. 	Here 	the 	removal 	decision was 	never 	implemented.
84

lecturers 	in 	general 	and 	by 	fears 	that, 	if 	successful 	in 	the
pending 	election, 	the 	UCAFT 	may 	try 	to 	negotiate 	security 	of
employment 	for 	its 	members.
Although 	the 	Charging 	Party 	has 	established 	the 	elements 	of
protected 	activity 	(election 	campaign, 	etc.) 	and 	that
University 	officials 	were 	generally 	aware 	of 	the 	activity 	and
of 	the 	Union's 	stance 	on 	security 	of 	employment, 	the 	element 	of
a 	causal 	link 	between 	the 	protected 	conduct 	and 	the 	attempted
removal 	of 	the 	FTE's 	has 	not 	been 	shown. 	As 	noted 	in 	the
recitation 	of 	the 	facts 	above, 	the 	overwhelming 	evidence
indicates 	that 	the 	decision, 	whether 	wise 	or 	unwise, 	was 	based
solely 	upon 	academic 	considerations. 	Indeed, 	the 	removal 	of
the 	three 	FTE's 	was 	aborted, 	and 	not 	due 	to 	any 	efforts 	on 	the
part 	of 	the 	UCAFT 	but 	through 	the 	efforts 	of 	Paul 	Rosenthal.
UCAFT's 	role 	in 	attempting 	to 	stop 	the 	removal 	was 	notably
absent, 	and 	there 	is 	no 	evidence 	that 	the 	attempted 	removal 	of
·.. the 	FTK's was 	ever made 	a 	part 	of 	the Union,' s 	campaign .• 34
A contrary 	finding 	would 	necessarily 	require 	the 	further
unsupported 	assumptions 	that 	the 	University 	believed 	that 	it
could 	defeat 	the 	election 	effort 	by 	eliminating 	the 	jobs 	of 	a
relatively 	small 	number 	of 	lecturers, 	at 	a 	time 	when 	those
34Marde 	Gregory's 	unsupported 	hearsay 	testimony 	that 	she
believed 	that 	the 	UCAFT 	had 	sent 	letters 	to 	the 	University
protesting 	the 	removal, 	cannot 	support 	a 	finding 	that 	the 	UCAFT
was 	so 	involved. 	8 	Cal. 	Admin. 	Code 	section 	32176. 	In 	fact,
an 	opposite 	inference 	might 	arguably 	be 	drawn 	because 	no 	such
documents 	were 	produced 	and 	no 	percipient 	witness 	was 	called 	to
corroborate 	it.
85

lecturers' 	affiliation 	with 	UCAFT was 	not 	yet 	known 	to 	any
University 	officials, 	and 	that 	the 	only 	department 	in 	the 	UC
system with 	a 	heavy 	concentration 	of 	lecturers 	with 	a 	great
deal 	of 	longevity was 	the 	Speech 	Department 	at 	UCLA.
2. 	The 	Sears 	Plan
While 	there 	are 	numerous 	gaps 	in 	the 	evidence, 	the 	UCAFT
has 	established 	a 	minimum 	prima 	facie 	case 	that 	the 	Sears 	Plan
was 	undertaken 	in 	retaliation 	for 	and/or 	in 	an 	attempt 	to
interfere 	with 	the 	lecturers' 	protected 	activity. 	The
protected 	activity 	included 	pre-election 	campaigning 	conduct 	by
Unit 	18 	members 	in 	general, 	the 	ensuing 	election, 	participation
in 	the 	process 	of 	meeting 	and 	conferring, 	and 	related 	matters
enumerated 	in 	more 	detail 	above.
There 	can 	be 	no 	question 	that 	the 	University 	administration
was 	generally 	aware, 	at 	least 	during 	the 	fall 	1983 	campaign,
that 	the 	UCAFT 	would 	make 	security 	of 	employment 	for 	lecturers
a 	central 	issuein·negotiations.if 	it were 	:victorious.
Although 	there 	is 	no 	evidence 	that 	specific 	University
administrators 	knew 	about 	the 	Union 	affiliation 	of 	particular
lecturers 	during 	the 	campaign, 	by 	the 	time 	the 	negotiations
began 	they 	were 	at 	least 	aware 	of 	Marde 	Gregory's 	role 	within
the 	Union.
Although 	no 	credible 	direct 	evidence 	exists 	from 	which 	it
can 	be 	concluded 	that 	the 	Plan 	was 	connected 	with 	the 	protected
activity, 	there 	is 	some 	circumstantial 	evidence. 	The 	general
timing 	of 	the 	Plan 	- 	first 	conceived 	in 	February 	1984 	and 	set
86

more 	concretely 	in 	the 	spring 	and 	fall 	of 	that 	year 	- 	shows 	it
followed 	in 	close 	proximity 	to 	the 	announcement 	that 	the 	UCAFT
had 	won 	the 	election. 	The 	administration 	had 	openly, 	though
not 	fervently, 	opposed 	the 	representational 	efforts 	of 	the
Union.
The 	testimony 	of 	Paul 	Rosenthal, 	supported 	by 	documentation
from 	Academic 	Senate 	officials, 	indicates 	that, 	in 	carrying 	out
certain 	components 	of 	the 	Plan, 	the 	University 	violated
internal 	policies 	and 	guidelines 	related 	to 	the 	"shared
governance" 	principle 	described 	in 	the 	statement 	of 	facts,
supra. 	Such 	arguable 	violations 	included 	the 	attempted 	"de
facto" 	disestablishment 	of 	the 	Speech 	Department 	by 	the
Provost•~ 	office 	without 	prior 	consultation 	procedures 	with 	the
Academic 	Senate 	and 	the 	attempt 	by 	the 	chair 	of 	the 	faculty 	of
the 	College 	of 	L&S 	to 	replace 	Rosenthal 	as 	Chair 	of 	the 	CS
Program, 	although 	the 	authority 	resided 	in 	the 	Executive
Committee 	of 	the 	College 	of 	Letters 	and 	Science.	'
A prima 	facie 	case 	is 	also 	supported 	by 	evidence 	that 	the
issue 	of 	security 	of 	employment, 	which was 	a 	central 	topic 	at
the 	bargaining 	table, 	was 	on 	a 	direct 	collision 	course 	with
components 	of 	that 	Plan 	- 	e.g., 	the 	move 	of 	lecturers 	to 	the
Writing 	Program 	and 	related 	foreseeable 	adverse 	effects. 	Also
arguably 	supporting 	the 	conclusion 	is 	the 	then-unexplained
failure 	of 	the 	administration 	to 	reappoint 	the 	Speech 	lecturers
in 	the 	spring 	of 	1984 	and 	the 	resulting 	delay 	in 	their
receiving 	their 	paychecks.
87

The 	Charging 	Party 	has 	also 	requested 	that 	the 	undersigned
draw 	an 	adverse 	inference 	from 	the 	University's 	failure 	to
produce 	a 	validly 	subpoenaed 	tape 	recording 	of 	a 	meeting 	of 	the
Executive 	Committee 	of 	the 	College 	of 	Letters 	and 	Science 	on
October 	15, 	1984, 	during 	which 	a 	discussion 	allegedly 	ensued
regarding 	the 	removal 	of 	Paul 	Rosenthal 	as 	Chair 	of 	the 	CS
Program.
During 	the 	hearing 	in 	this 	case, 	the 	UCAFT 	subpoenaed 	a
tape 	recording 	of 	such 	a 	meeting. 	The 	University's 	subsequent
petition 	to 	revoke 	the 	subpoena 	was 	denied. 	In 	so 	ruling, 	the
undersigned 	made 	an 	in 	camera 	inspection 	of 	the 	tape, 	pursuant
to 	Respondent's 	request, 	to 	make 	an 	informed 	judgment 	regarding
the 	University's 	contentions 	of 	confidentiality. 	The
University 	refused 	to 	comply with 	a 	subsequent 	order 	to 	produce
a 	tape 	or 	a 	copy 	thereof.
Prior 	to 	that 	refusal, 	Charging 	Party 	had 	put 	on 	testimony
~regarding 	some 	of 	the 	events of 	that 	meeting 	through 	Paul
Rosenthal, 	who 	was 	present 	during 	a 	portion 	of 	it, 	and 	through
Provost 	Orbach 	(called 	as 	an 	adverse 	witness). 	However,
Charging 	Party 	argued 	that 	the 	tape 	was 	a 	more 	accurate 	and
complete 	record 	of 	the 	meeting, 	at 	which, 	according 	to 	the
Unfair 	Practice 	Charge, 	Marde 	Gregory's 	position 	in 	the 	Speech
Department 	was 	affected 	when 	Paul 	Rosenthal 	(her 	close
associate 	and 	former 	Chair) 	and 	the 	Department 	"were
slanderously 	attacked" 	by 	Dean 	Sears 	and 	Professor 	Riley. 	The
88

statements 	are 	alleged 	to 	have 	been 	made 	for 	the 	purpose 	of
harassing 	Gregory 	and 	her 	pro-UCAFT 	colleagues.
Subsequent 	to 	the 	University's 	refusal 	to 	comply with 	the
Order 	to 	Produce 	the 	recording, 	the 	undersigned 	prevented 	it
from 	presenting 	evidence 	in 	its 	defense 	regarding 	what 	happened
at 	the 	meeting. 	The 	authority 	for 	this 	sanction, 	as 	stated
during 	the 	hearing, 	is 	a 	long-standing 	principle 	in 	private
sector 	labor 	law 	referred 	to 	as 	"the 	Rule 	in 	Bannon Mills."
The 	principle 	was 	developed 	by 	the 	NLRB 	from 	Bannon 	Mills, 	Inc.
(1964) 	146 	NLRB 	No. 	81 	at 	p. 	611, 	and 	its 	progeny. 	See 	also
NLRB 	v. 	C. 	H. 	Spraque 	& 	Son 	(1970) 	74 	LRRM 	2641.
The 	Charging 	Party 	has 	additionally 	argued 	that, 	because 	it
was 	prevented 	from 	using 	the 	tape 	to 	establish 	its 	case 	in
chief, 	all 	appropriate 	adverse 	inferences 	should 	be 	drawn
against 	the 	Respondent 	and 	all 	facts 	that 	the 	Union 	offered 	to
prove 	through 	the 	tape 	be 	accepted 	as 	true. 	It 	cites 	UAW 	v.
NLRB 	(D.C. 	Cir .. 	1972) 	459 	F.2d 	1329, 	79 	LRRM 	2332 	and 	NLRB 	v.
International 	Medication 	Systems, 	Ltd. 	(9th 	Cir. 	1981) 	640 	F.2d
1110.
The 	adverse 	inference 	rule 	provides 	that 	when 	a 	party 	has
relevant 	evidence 	within 	its 	control 	which 	he 	or 	she 	fails 	to
produce, 	that 	failure 	gives 	rise 	to 	an 	inference 	that 	the
evidence 	is 	unfavorable 	to 	him 	or 	her. 	As 	noted 	in 	United 	Auto
Workers, 	supra, 	whether 	to 	invoke 	the 	rule 	is 	within 	the
discretion 	of 	the 	trier 	of 	fact.
89

Having 	considered 	the 	evidence, 	the 	parties' 	arguments, 	and
having 	listened 	to 	the 	tape 	recording 	in 	question, 	it 	is
determined 	that 	the 	adverse 	inference 	rule 	applies. 	The 	scope
and 	weight 	of 	the 	inference, 	however, 	is 	not 	as 	wide-ranging 	as
the 	Charging 	Party 	has 	requested. 	The 	inference 	that 	will 	be
drawn 	is 	that 	Paul 	Rosenthal 	and, 	by 	inference, 	his 	Speech
Department, 	were 	verbally 	criticized, 	or 	"attacked," 	as 	the
Charge 	alleges, 	at 	the 	meeting. 	Whether 	the 	attack was
slanderous 	is 	a 	matter 	being 	litigated 	in 	the 	courts 	between
Rosenthal 	and 	the 	appropriate 	University 	officials 	and 	is 	not
the 	issue 	before 	this 	agency. 	Having 	inspected 	the 	evidence 	in
camera, 	I 	cannot, 	in 	good 	consience, 	draw 	a 	broader 	inference
from 	the 	tape .. 	It 	will 	help 	support 	a 	finding 	of 	a 	prima 	facie
case, 	along 	with 	other 	evidence 	listed 	above.
a. 	The 	Preponderance 	of 	the 	Evidence 	Demonstrates 	that 	the
Sears 	Plan Would 	haveJBeen 	Developed 	and 	Implementation
Begun 	Nothwithstanding 	Gregory's 	and 	Other 	Lecturers'
Exercise 	of 	Protected 	Rights.
Charging 	Party, 	having 	produced 	some 	evidence 	to 	support
each 	element 	necessary 	to 	establish 	a 	prima 	facie 	violation 	of
the 	HEERA, 	the 	burden 	shifts 	to 	the 	employer 	to 	demonstrate
that 	it 	would 	have 	taken 	the 	same 	action 	regardless 	of 	the
Charging 	Party's 	protected 	activities. 	Novato 	Unified 	School
District, 	supra. 	In 	this 	case, 	Respondent 	has 	more 	than
carried 	its 	burden 	in 	establishing 	that 	its 	actions 	regarding
the 	Sears 	Plan would 	have 	occurred 	notwithstanding 	any 	exercise
of 	rights 	under 	HEERA.
90

Although 	the 	timing 	of 	the 	University's 	action 	appears
suspect 	at 	first 	glance, 	viewed 	in 	its 	contextual 	setting 	the
appearance 	of 	impropriety 	all 	but 	vanishes. 	According 	to
unrebutted 	defense 	testimony 	and 	even 	that 	of 	Charging 	Party
witnesses, 	including 	Paul 	Rosenthal, 	the 	CS 	Program, 	having
been 	created 	at 	a 	time 	of 	change 	and 	controversy, 	was 	seemingly
under 	continual 	review 	and 	reevaluation. 	As 	noted 	in 	more
detail 	above, 	the 	efforts 	of 	some 	faculty 	to 	develop 	the
Program were 	persistently 	hampered 	for 	one 	reason 	or 	other 	even
prior 	to 	the 	time 	of 	the 	Unit 	18 	election 	campaign. 	As 	noted
by 	Paul 	Rosenthal, 	the 	Program's 	existence 	was 	placed 	in
jeopardy 	initially 	by Dean 	Burke 	in 	the 	mid-1970's, 	and 	two
FTE's 	were 	withdrawn 	from 	it. 	Although 	the 	FTE's 	were 	later
restored, 	upon 	Orbach's 	appointment 	in 	1982, 	he 	again 	withdrew
one 	of 	those. 	Rosenthal 	concluded 	that 	this 	marked 	a 	reversion
to 	what 	he 	considered 	an 	"anti-Comm 	Studies 	policy 	by 	a 	new
provost .. " 	Thusj 	whatever 	motive-there was 	to 	reorganize 	the 	CS
Program 	existed 	long 	before 	the 	election 	campaign 	in 	1983 	and
thereafter 	continued 	to 	impact 	decisions 	over 	the 	existence 	of
the 	Program.
To 	the 	extent 	that 	the 	Sears 	Plan 	would 	have 	effectuated 	a
de 	facto 	disestablishment 	of 	what 	remained 	of 	the 	Speech
Department, 	the 	timing 	of 	the 	Plan 	might 	nevertheless 	appear
suspect.
91

For 	the 	reasons 	set 	forth 	further 	below, 	however, 	and
because 	timing, 	without 	more, 	is 	insufficient 	to 	establish 	a
nexus 	between 	an·tdverse 	act 	and 	protected 	activity, 	it 	is
determined 	that 	the 	Sears 	Plan's 	anticipated 	impact 	on 	the
Speech Department's 	lecturers 	was 	not 	in 	retaliation 	for 	the
exercise 	of 	protected 	rights. 	California 	State 	University
(Sacramento) 	(1982) 	PERB 	Decision 	No. 	211-H.
The 	Sears 	Plan 	had 	roots 	in 	the 	controversy 	surrounding 	the
Speech 	Department 	and 	CS 	Program 	in 	the 	1970's. 	One 	of 	its
other 	key 	catalysts 	was 	the 	submission 	of 	a 	proposal 	for 	a
graduate 	program 	in 	CS 	by 	Professors 	Rosenthal, 	Malamuth 	and
French 	in 	1983. 	The 	submission 	coincided 	with 	the 	recent
arrival 	of 	a 	new 	Provost 	(Orbach) 	and 	a 	new 	Dean 	(Sears), 	the
latter 	of 	which 	had 	a 	great 	deal 	of 	expertise 	in 	the 	area 	of
communication 	and 	had 	an 	interest 	in 	developing 	and/or
restructuring 	the 	program.
The ·graduate' program 	proposal 	and 	its 	ensuing 	review 	by 	the:·
professors 	provided 	Sears 	with 	the 	opportunity 	to 	critique 	the
program's 	development 	and 	performance 	during 	its 	existence. 	He
saw 	need 	for 	change. 	The 	rejection 	of 	the 	proposal 	was 	based
not 	upon 	union-related 	considerations, 	but 	upon 	academic 	ones,
and 	upon 	a 	conclusion 	that, 	in 	its 	present 	form, 	the 	CS 	Program
and 	its 	few 	faculty 	were 	incapable 	of 	supporting 	a 	graduate
program.
92

Similarly, 	the 	initial 	components 	of 	the 	Sears 	Plan 	had
roots 	in 	academic 	and 	administrative 	considerations. 	One 	was
the 	need 	to 	broaden 	participation 	by 	more 	ladder-rank 	faculty
from 	other 	departments 	on 	campus. 	Another 	was 	the 	need 	to
change 	the 	leadership 	of 	the 	Program 	from 	Rosenthal, 	who 	had
been 	its 	Chair 	for 	a 	long 	time 	and 	with whom 	the 	Provost 	and
others 	were 	dissatisfied, 35 to 	Malamuth. 	Despite 	the
Charging 	Party's 	efforts 	to 	paint 	Malamuth 	as 	anti-lecturer,
anti-union, 	and 	as 	a 	puppet 	of 	an 	anti-union 	administration,
the 	record 	does 	not 	support 	those 	claims.
While 	the 	violation 	of 	an 	employer's 	own 	rules 	in 	carrying
out 	an 	adverse 	employee 	action 	may 	sometimes 	be 	viewed 	as
circumstantial 	evidence 	of 	an 	unlawful 	motivation, 	the
circumstances 	as 	viewed 	from 	the 	entire 	record, 	militate
against 	such 	a 	finding 	in 	this 	instance.
Because 	of 	Rosenthal's 	lengthy 	tenure 	as 	a 	professor 	in 	the
Speec~Department.·and GS 	Programi 	as~chair 	of 	both, 	and 	his
long 	experience 	serving 	on 	committees 	of 	the 	Academic 	Senate 	-
particularly 	as 	chair 	of 	the 	Committee 	on 	Rules 	and
Jurisdiction 	- 	he 	has 	developed 	a 	unique 	expertise 	in 	the 	rules
of 	the 	Academic 	Senate, 	the 	regential 	standing 	orders, 	and 	in
35There 	is 	no 	evidence 	that 	the 	administration's
dissatisfaction 	with 	Rosenthal 	was 	connected 	with 	the 	UCAFT.
The 	record 	shows 	that 	Rosenthal's 	fervent 	efforts 	to 	oppose
changes 	in 	the 	program 	and 	in 	the 	Speech 	Department 	were 	not
connected, 	either 	expressly 	or 	impliedly, 	with 	the 	cause 	of
unionization 	of 	the 	lecturers.
93

administration 	policy. 	Consequently, 	he 	has 	proven 	to 	be 	more
than 	a 	match 	for 	several 	administrators 	seeking 	to 	change
programs 	that 	he 	has 	been 	involved 	in.
By 	comparison, 	administrators 	such 	as 	Provost 	Orbach,
Vice-Provost 	Kissler, 	and 	several 	divisional 	deans, 	have 	only a.
general 	working 	knowledge 	of 	the 	intricate 	procedural 	and
substantive 	rules 	Rosenthal 	has 	utilized 	in 	his 	many
confrontations 	with 	the 	University. 	It 	is 	this 	lack 	of
expertise 	on 	the 	part 	of 	Orbach, 	Sears, 	Morris, 	Kissler, 	and
other 	administrators 	that 	led 	to 	their 	arguable 	violation 	of
disestablishment 	policies 	of 	the 	Academic 	Senate 	in
implementing 	the 	Sears 	Plan 	and 	in 	attempting 	to 	secure 	a 	new
chairperson 	for 	the 	CS 	Program. 	Indeed, 	the 	evidence 	reflects
that, 	with 	respect 	to 	the 	appointment 	of 	the 	chair 	of 	the 	CS
Program, 	the 	required 	procedures 	had 	also 	been 	unwittingly
violated 	in 	the 	years 	prior 	to 	1984. 	Only when 	Rosenthal
brought 	the 	matter 	to'\ the 	Academic· Senate's 	Cammi ttee 	on 	Rules
and 	Jurisdiction, 	supported 	by 	pertinent 	citations, 	did 	the
Committee 	agree 	that 	there 	was 	an 	error 	in, 	inter 	alia,the 	way
a 	replacement 	for 	Rosenthal 	had 	been 	selected. 	It 	was 	an
ignorance 	of 	the 	requirements 	under 	HEERA 	that 	also 	caused 	the
University 	administration 	to 	proceed 	almost 	clumsily 	in
developing 	and 	simultaneously 	implementing 	negotiable
components 	of 	the 	Sears 	Plan.
94

Thus, 	while 	the 	University 	and 	UCAFT 	were 	actively
attempting 	to 	negotiate 	job 	security 	for 	lecturers, 	the 	campus
level 	administrators 	were 	busy 	proceeding 	with 	a 	course 	of
action 	(transferring 	speech 	lecturers 	to 	the 	Writing 	Program)
that 	almost 	certainly would 	have 	meant 	termination 	of 	those
same 	lecturers. 	Although 	the 	Union 	apprised 	the 	administration
in 	October 	1984 	of 	the 	legal 	bargaining 	prerequisites 	under
HEERA, 	the 	administrators 	were 	given 	erroneous 	legal 	advice 	as
to 	when 	the 	meet 	and 	confer 	obigation was 	triggered. 	Based 	on
this 	faulty 	legal 	advice, 	and 	not 	on 	a 	retaliatory 	motive, 	the
administration 	proceeded 	with 	implementation 	of 	the 	plan 	rather
than 	suspending 	it 	and 	negotiating 	on 	aspects 	within 	the 	scope
of 	representation. 	The 	overriding 	motives 	for 	continuing
implementation were 	academic 	in 	nature.
The 	failure 	of 	the 	College 	of 	L&S 	to 	timely 	reappoint
lecturers 	until 	mid-June 	1984, 	and 	the 	resulting 	delay 	in
issuing them 	paychecks, 	were .similarly 	due 	to, the 	awkward
manner 	in which 	the 	administration 	proceeded 	to 	implement 	the
Sears 	Plan 	while 	making 	modifications 	in 	it 	midstream. 	Morris'
testimony 	convinced 	me 	that 	both 	adverse 	acts 	were 	not 	due 	to
any 	ill-will 	or 	anti-union 	motives 	on 	his 	part, 	but 	due 	to 	a
breakdown 	in 	communications 	that 	are 	unfortunately 	not 	uncommon
in 	the 	College 	of 	L&S, 	and 	also 	due 	to 	these 	midstream 	changes
in 	the 	Plan 	- 	e.g., 	the 	decision 	to 	abandon 	the 	transfer 	of 	the
lecturers 	to 	the 	Writing 	Program 	and 	to, 	instead, 	reappoint
them 	to 	the 	Speech 	Department.
95

The 	UCAFT's 	only 	attempts 	to 	directly 	link 	the 	Sears 	Plan
to 	an 	unlawful 	motive 	points 	instead 	to 	a 	finding 	that 	no
connection 	existed. 	Thus, 	the 	allegation 	that 	Steven 	Chaffee
attempted 	to 	negotiate 	a 	deal 	on 	behalf 	of 	the 	University
whereby Marde 	Gregory would 	relinquish 	her 	union-related
efforts 	to 	obtain 	job 	security 	is 	rejected. 	Instead, 	this
allegation 	indicates 	that 	Charging 	Party 	may 	have 	been
stretching 	to 	find 	a 	motivation 	that 	just was 	not 	there. 	Its
attempts 	to 	connect 	Neil 	Malamuth 	with 	the 	alleged 	illicit
scheme 	were 	similarly 	unsupported 	with 	credible 	evidence.
Indeed, 	given 	the 	rather 	unsophisticated 	and 	seemingly
haphazard 	manner 	in 	which 	the 	University 	proceeded 	with 	the
Sears 	Plan, 	it 	is 	highly 	unlikely 	that 	it 	could 	have 	devised
such 	an 	elaborate 	and I
all-encompassing 	scheme 	to 	undermine 	the
Union, 	as 	the 	Charging 	Party 	has 	alleged. 	The 	allegation 	of
retaliation 	and 	interference 	with 	regard 	to 	the 	Sears 	Plan 	is
therefore 	dismissed.
3. 	Sending 	Marde 	Gregory 	to 	Coventry
The 	facts 	concerning 	the 	University's 	alleged 	ostracism 	of
Marde 	Gregory, 	discussed, 	supra, 	indicate 	that 	although 	Gregory
exercised 	rights 	protected 	under 	HEERA, 	with 	employer
knowledge, 	the 	only 	circumstantial 	evidence 	of 	an 	unlawful
motive 	for 	the 	alleged 	conduct 	is 	its 	timing 	- 	that 	it 	followed
the 	filing 	of 	an 	unfair 	practice 	charge. 	As 	noted 	above,
however, 	timing, 	without 	more, 	is 	insufficient 	to 	establish
96

unlawful 	motivation 	and, 	thus, 	the 	requisite 	legal 	nexus.
Therefore, 	a 	prima 	facie 	case 	of 	discrimination 	and/or
interference 	in 	this 	instance 	has 	not 	been 	made. 	That
allegation 	is 	likewise 	dismissed.
4. 	Deletion 	of 	Favorable 	References 	to 	Gregory 	in 	CUCC 	Draft
Report.
Like 	the 	allegation 	discussed 	above, 	although 	the 	threshold
elements 	- 	protected 	activity 	and 	knowledge 	- 	have 	been 	met,
there 	is 	a 	lack 	of 	evidence 	that 	Neil 	Malamuth's 	successful
attempt 	to 	have 	a 	reference 	to 	Marde 	Gregory's 	role 	in 	the
admission 	process 	changed, 	was 	in 	retaliation 	for, 	or 	an
attempt 	to 	interfere 	with, 	her 	protected 	activities. 	Instead,
the 	evidence 	shows 	that, 	although 	Gregory 	indeed 	exercised 	a
great 	deal 	of 	influence 	over 	the 	admissions 	process, 	Malamuth's
suggested 	change 	of 	the 	draft 	was 	consistent 	with 	true
practice. 	Thus, 	although 	Gregory's 	admissions 	recommendations
were 	rarely, 	if 	ever,,rejected, 	the 	authority 	for 	making 	the·
decisions 	had 	indeed 	rested 	in 	Rosenthal 	and 	Malamuth. 	There
is 	no 	evidence 	to 	the 	contrary.
There 	is 	evidence 	that 	on 	several 	instances 	Malamuth 	made
favorable 	remarks 	about 	Gregory's 	performance 	in 	context 	where
they would 	be 	more 	likely 	to 	influence 	her 	career 	in 	a 	positive
way. 	Included 	is 	a 	memo 	dated 	April 	12, 	1985 	to 	Dean 	Morris 	in
which 	Malamuth 	praised 	the 	performance 	of 	two 	lecturers,
including 	Gregory, 	as 	"outstanding" 	and 	recommended 	that 	she
97

deserved 	a 	salary 	increase. 	In 	a 	subsequent 	memo 	to 	Gregory
dated 	June 	12, 	1985, 	wherein Malamuth 	notified 	her 	of 	her
reappointment, 	he/also 	congratulated 	her 	for 	receiving 	a 	merit.
salary 	increase. 	Other 	instances, 	such 	as 	Malamuth's 	open
praise 	of 	Gregory's 	performance 	in 	the 	presence 	of 	her
students, 	have 	already 	been 	detailed 	above. 	In 	sum, 	it 	is
concluded 	that 	Malamuth's 	attempts 	to 	modify 	the 	final 	CUCC
report 	were 	devoid 	of 	any 	unlawful 	intent 	toward 	Gregory.
5. 	Gregory's 	Title 	Change
The 	only 	evidence 	that 	Gregory's 	title 	change, 	from 	that 	of
visiting 	lecturer 	to 	adjunct 	lecturer, 	was 	in 	any 	way 	related
to 	her 	exercise 	of 	rights 	was 	the 	fact 	that 	the 	change 	occurred
after 	such 	exercise. 	As 	noted, 	supra, 	mere 	coincidence 	of 	time
is 	insufficient 	to 	raise 	the 	inference 	of 	unlawful 	motivation.
Indeed, 	the 	timing 	of 	the 	move 	may well 	indicate 	a 	lack 	of 	an
unlawful 	motive, 	inasmuch as 	the 	title 	change 	took 	place 	about
a 	year 	after 	the 	UCAFT 	election, 	an&.Gregory 	found 	out 	about 	it~f
over 	one 	year 	after 	she 	began 	negotiating 	for 	the 	Union. 	In
any 	event, 	her 	title 	of 	adjunct 	lecturer 	was 	shown 	to 	be
consistent 	with 	University 	policy, 	initiated 	after 	the
University's 	discovery 	of 	an 	inadvertent 	mistake 	in 	formerly
titling 	her 	as 	a 	visiting 	lecturer, 	and 	the 	result 	did 	not
cause 	any 	interference 	with 	her 	rights 	as 	a 	Union
representative 	or 	member. 	Having 	failed 	to 	establish 	an
unlawful 	motivation 	or 	interference, 	the 	allegation 	by 	the
UCAFT 	in 	this 	regard 	is 	dismissed.
98

6. 	Released 	Time
Charging 	Party 	has 	failed 	to 	show 	that 	the 	University's
conduct 	in 	dealin~ 	with 	it 	regarding 	released 	time 	was 	intended
to 	or 	did 	interfere 	with 	its 	rights; 	or 	was 	retaliatory 	in 	any
way. 	All 	released 	time 	requests 	were 	granted 	as 	part 	of 	the
ground 	rules 	agreement 	- 	that 	is, 	the 	Union's 	negotiating 	team
was 	released 	for 	attendance 	at 	all 	bargaining 	sessions 	and
released 	for 	reasonable 	travel 	time. 	Similarly, 	it 	has 	not
been 	demonstrated 	that 	the 	arrangements 	to 	cover 	classes 	missed
because 	of 	released 	time 	were 	deliberately 	delayed 	or 	denied
for 	the 	purpose 	of 	retaliation 	because 	of 	protected
activities. 	Although 	some 	specific 	requests 	for 	coverage 	of
classes 	were 	denied 	(e.g. 	- 	audio 	visual 	materials 	not 	ordered,
money 	for 	guest 	speakers 	not 	provided), 	there 	is 	no 	showing 	of
an 	unlawful 	intent 	in 	doing 	so, 	nor 	of 	any 	interference with
the 	exercise 	of 	protected 	rights.
With 	respect 	to 	Gregory's 	request 	to 	be 	relieved 	of
teaching 	CS 	185 	in 	the 	spring 	quarter 	of 	1985, 	there 	is 	no
credible 	evidence 	of 	improprieties 	by Malamuth. 	Gregory's
course 	relief 	request 	was 	granted, 	along 	with 	an 	additional
request 	to 	be 	released 	for 	ten 	hours 	from 	her 	staff 	position.
The 	course 	relief 	was 	granted 	solely 	on 	the 	basis 	that 	her
negotiations 	schedule 	then 	conflicted 	with 	her 	class 	schedule.
Although Malamuth 	could 	have 	sabotaged 	Gregory's 	efforts 	to
obtain 	course 	relief 	on 	the 	basis 	of 	perceived 	irregularities
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6. 	Released 	Time
Charging 	Party 	has 	failed 	to 	show 	that 	the 	University's
conduct 	in 	dealing 	with 	it 	regarding 	released 	time 	was 	intended
to 	or 	did 	interfere 	with 	its 	rights, 	or 	was 	retaliatory 	in 	any
way. 	All 	released 	time 	requests 	were 	granted 	as 	part 	of 	the
ground 	rules 	agreement 	- 	that 	is, 	the 	Union's 	negotiating 	team
was 	released 	for 	attendance 	at 	all 	bargaining 	sessions 	and
released 	for 	reasonable 	travel 	time. 	Similarly, 	it 	has 	not
been 	demonstrated 	that 	the 	arrangements 	to 	cover 	classes 	missed
because 	of 	released 	time 	were 	deliberately 	delayed 	or 	denied
for 	the 	purpose 	of 	retaliation 	because 	of 	protected
activities. 	Although 	some 	specific 	requests 	for 	coverage 	of
classes 	were 	denied 	(e.g. 	- 	audio 	visual 	materials 	not 	ordered,
money 	for 	guest 	speakers 	not 	provided), 	there 	is 	no 	showing 	of
an 	unlawful 	intent 	in 	doing 	so, 	nor 	of 	any 	interference 	with
the 	exercise 	of 	protected 	rights.
With 	respect 	to 	Gregory's 	request 	to 	be 	relieved 	of
teaching 	CS 	185 	in 	the 	spring 	quarter 	of 	1985, 	there 	is 	no
credible 	evidence 	of 	improprieties 	by Malamuth. 	Gregory's
course 	relief 	request 	was 	granted, 	along 	with 	an 	additional
request 	to 	be 	released 	for 	ten 	hours 	from 	her 	staff 	position.
The 	course 	relief 	was 	granted 	solely 	on 	the 	basis 	that 	her
negotiations 	schedule 	then 	conflicted 	with 	her 	class 	schedule.
Although 	Malamuth 	could 	have 	sabotaged 	Gregory's 	efforts 	to
obtain 	course 	relief 	on 	the 	basis 	of 	perceived 	irregularities
99

in 	her 	scheduling 	of 	her 	own 	classes 	that 	produced 	the 	conflict
and 	due 	to 	Gregory's 	inconsistent 	stories 	about 	her 	airline
schedule, 	etc., 	he 	chose 	not 	to 	do 	so. 	Instead, 	he 	recommended
approval 	of 	her 	request 	and 	made 	no 	mention 	of 	the 	problems 	to
Dean 	Morris. 	Malamuth's 	sitting 	in 	on 	Gregory's 	class 	two 	to
three 	times 	was 	not 	shown 	to 	be 	disruptive 	or 	retaliatory. 	He
did 	not 	take 	the 	class 	"away" 	from 	Gregory, 	though 	he 	could
legitimately 	have 	done 	so 	as 	a 	contingency.
The 	additional 	facts 	indicating 	that 	the 	University
accomodated 	Gregory's 	teaching 	schedule 	during 	summers, 	that
she 	and 	Spafford were 	granted 	full 	course 	relief, 	and 	that 	all
coverage 	arrangements 	preceded 	the 	beginning 	of 	each 	academic
quarter, 	militate 	against 	a 	finding 	that 	the 	University's
conduct 	regarding 	released 	time 	was 	harassment, 	retaliation, 	or
interference. 	The 	allegations 	in 	the 	Unfair 	Practice 	Charge 	to
this 	effect 	are 	therefore 	dismissed.
7. 	Late 	Reappointment 	and 	Paychecks 	of 	Lecturers
The 	timing 	of 	the 	speech 	lecturers' 	reappointment 	for·
academic 	year 	1985-86 	was 	the 	result 	of 	poor 	communications
within 	the 	College 	of 	Letters 	and 	Science 	combined 	with 	the
haphazard 	manner 	in which 	the 	Sears 	Plan 	was 	being
implemented. 	Neither 	was 	shown 	to 	be 	harassment 	or 	retaliation
because 	of 	the 	lecturers' 	protected 	activities. 	Upon 	being
apprised 	that 	the 	reappointments 	were 	late 	in 	being 	submitted
to 	the 	appropriate 	personnel 	departments, 	the 	administrators
100

acted 	to 	correct 	the 	problem 	in 	a 	straightforward 	manner, 	and
the 	lecturers 	were 	able 	to 	meet 	their 	academic 	assignments 	as
before.
When 	all 	the 	facts 	are 	considered, 	what 	might 	at 	first
glance 	appear 	to 	be 	disparate 	treatment 	as 	to 	Marde 	Gregory's
receipt 	of 	her 	paycheck 	(later 	than 	most 	other 	lecturers), 	is
in 	reality 	the 	result 	of 	legitimate 	reasons. 	Gregory's 	payroll
documents 	had 	to 	be 	processed, 	unlike 	most 	other 	lecturers',
through 	two 	(staff 	and 	academic) 	offices 	inasmuch 	as 	she 	held
an 	instructional 	position 	as 	well 	as 	a 	staff 	position 	(SAO).
Her 	documents 	therefore 	had 	to 	be 	approved 	by 	the 	appropriate
persons 	in 	each 	section, 	causing 	additional 	delay. 	The 	same
procedures 	caused 	a 	two-week 	delay 	of 	another 	adjunct
lecturer's 	(Tom Miller) 	paycheck.
Gregory 	testified 	that 	she 	did 	suspect 	that 	the 	extra 	delay
in 	receiving 	her 	paycheck was 	the 	result 	of 	her 	paperwork
having 	to 	go 	through 	more 	procedural channels 	due 	to 	her
adjunct 	lecturer 	position. 	There 	also 	was 	unrefuted 	testimony
that 	late 	paychecks 	are, 	unfortunately, 	not 	an 	uncommon
occurrence 	within 	the 	College.
The 	allegation 	that 	Gregory"s 	reappointment 	and 	late
receipt 	of 	her 	August 	1985 	paycheck were 	somehow 	connected 	with
her 	protected 	activities 	is 	therefore 	dismissed.
In 	sum, 	viewed 	individually 	or 	together, 	all 	the 	alleged
acts, 	which 	have 	been 	characterized 	as 	harassment 	or
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retaliation, 	would 	have 	occurred 	notwithstanding 	the 	exercise
of 	protected 	rights 	by 	the 	Charging 	Party 	and/or 	its 	members.
B. 	The 	Legal 	Standard 	Re: 	Released 	Time
Section 	3569 	of 	the 	HEERA 	states, 	in 	pertinent 	part:
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	or 	reassigned 	time 	without
loss 	of 	compensation when 	engaged 	in 	meeting
and 	conferring 	...
This 	is 	very 	similar 	to 	Government 	Code 	section 	3543.l(c) 	which
provides 	for 	released 	time 	for 	employee 	representatives
negotiating 	with 	public 	school 	employers. 	Although 	the 	PERB
has 	not 	ruled 	on 	the 	specific 	issue 	of 	what 	amount 	of 	released
time 	is 	"reasonable" 	under 	HEERA, 	it 	has 	provided 	some 	guidance
in 	interpreting 	the 	released 	time 	provision 	under 	section
3543.l(c).
In Magnolia 	School 	District 	(1977) 	EERB 	Decision 	No.
19 36 , 	the 	Board 	held 	that 	"reasonable 	released 	time" 	means 	at
least 	that 	the 	employer 	has 	exhibited 	an 	open 	attitude 	in 	its
consideration 	of 	the 	amount 	of 	released 	time 	to 	be 	allowed 	so
that 	the 	amount 	is 	appropriate 	to 	the 	circumstances 	of 	the
negotiations. 	In 	that 	case, 	a 	violation 	of 	section 	3543.l(c)
was 	found 	because 	the 	employer 	inflexibly 	refused 	to 	consider
36The 	PERB 	was 	previously 	known 	as 	the 	EERB 	(Educational
Employment 	Relations 	Board).
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or 	provide 	any 	released 	time 	during 	the 	instructional 	day, 	even
for 	a 	single 	negotiating 	session. 	The 	Board 	reasoned 	that 	the
Legislature 	contemplated, 	at 	least 	in 	some 	circumstances, 	that
some 	released 	time 	during 	the 	instructional 	day would 	be
appropriate.
In 	Sierra 	Joint 	Community 	College 	District 	(1981) 	PERE
Decision 	No. 	179, 	the 	employer 	refused 	to 	negotiate 	over 	a
proposal 	by 	the 	union 	for 	a 	released 	time 	formula 	which 	would
provide 	a 	one-fifth 	reduction 	from 	the 	normal 	fifteen-hour
teaching 	load 	of 	community 	college 	instructors 	who 	were 	serving
as 	negotiators. 	The 	employer's 	rationale 	was 	that 	released
time 	could 	be 	granted 	only 	from 	scheduled 	assignments, 	and 	that
the 	proposal 	was 	really 	a 	request 	for 	compensatory 	time 	off
rather 	than 	released 	time. 	It 	asserted 	that 	released 	time
could 	be 	provided 	only 	during 	periods 	of 	actual 	meeting 	and
negotiating.
The 	Board 	initially 	held 	that 	released 	time 	is 	a 	subject
within 	the 	scope 	of 	representation. 	It 	then 	reversed 	the 	ALJ's
determination 	that 	released 	time 	must 	coincide with 	time
actually 	spent 	negotiating, 	reasoning 	that 	such 	a 	narrow
construction 	of 	the 	statute 	was 	unwarranted. 	The 	Board 	further
noted 	that, 	"While 	the 	District 	was 	under 	no 	obligation 	to
accede 	to 	the 	workload 	reduction, 	the 	proposal 	was 	lawful 	and
the 	District 	was 	obligated 	to 	respond."
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1. 	Negotiation 	of 	Released 	Time
Keeping 	in 	mind 	the 	above 	considerations, 	it 	must 	be 	found
that 	the 	University 	did 	not 	violate 	HEERA 	section 	3569 	in
negotiating 	over 	released 	time. 	First, 	there 	is 	no 	showing
that 	the 	employer 	refused 	to 	negotiate 	over 	the 	issue.
Although 	it 	refused 	to 	accede 	to 	UCAFT's 	proposal 	for
"across-the-board" 	course 	relief, 	it 	never 	refused 	to 	consider
and 	discuss 	the 	proposal 	in 	good 	faith. 	Indeed, 	it
acknowledged 	that 	course 	relief 	might 	be 	appropriate 	under 	some
circumstances, 	and, 	in 	such 	cases, 	it 	would 	consider 	granting
course 	relief. 	The 	record 	reveals 	that 	it 	did 	grant 	it 	in
specific 	cases.
Thus, 	although 	UCAFT's 	course 	relief 	proposals 	are
mandatory 	subjects 	of 	bargaining 	in 	view 	of 	Sierra 	Jt. 	CCD,
supra, 	a 	finding 	that 	no 	violation 	occurred 	in 	the 	case 	at 	hand
is 	not 	inconsistent 	with 	that 	decision 	because 	negotiations
over 	them 	did 	take 	place. 37
Secondly, 	unlike 	the 	situation 	in Magnolia, 	supra, 	the
University 	offered 	to 	release 	six 	negotiators 	from 	all 	class
sessions 	that 	conflicted 	with 	negotiations 	without 	loss 	of
pay. 	A great 	number 	of 	negotiations 	sessions 	in 	fact 	occurred
during 	what 	would 	be 	considered 	a 	normal 	work 	day. 	Also 	unlike
37The 	mere 	fact 	that 	the 	UCAFT's 	arguments 	in 	support 	of
course 	relief 	dealt 	with 	subjects 	within 	management's
prerogative 	did 	not 	remove 	course 	relief 	proposals 	from 	the
scope 	of 	representation.
104

the 	situation 	in Magnolia, 	the 	parties 	agreed 	to 	a 	released
time 	provision 	relatively 	early 	in 	the 	negotiations 	process.
What 	the 	Unive'rsity 	stated 	it 	would 	not 	negotiate 	over 	were
arrangements 	for 	coverage 	of 	classes 	missed 	as 	a 	result 	of 	the
granting 	of 	released 	time. 	Whether 	the 	University's 	actions,
as 	opposed 	to 	its 	statements, 	even 	amounted 	to 	a 	refusal 	to
meet 	and 	confer 	in 	good 	faith 	over 	this 	subject 	is 	debatable,
given 	the 	fact 	that 	it 	discussed 	the 	coverage 	proposals
repeatedly 	at 	the 	table, 	and 	agreed 	to 	a 	provision whereby 	each
instructor/negotiator 	was 	given 	consultative 	rights 	over
coverage 	decisions 	made 	within 	their 	respective 	departments.
To 	the 	extent 	that 	UCAFT's 	demands 	to 	negotiate 	actual
class 	coverage 	arrangements 	constitute 	proposals 	separately
from 	course 	relief, 	they 	do 	not 	appear 	to 	be 	within 	the 	scope
of 	representation 	under 	the 	HEERA. 	The 	pertinent 	portion 	of
that 	statute, 	at 	section .3562(q) 	states:
. 	. 	. 	. 	. 	. . . . 	. 	. 	. 	. . . . 	.
The 	scope 	of 	representation 	shall 	not
include:
(3) 	. 	the 	content 	and 	supervision 	of
courses, 	curricula, 	and 	research 	programs,
as 	those 	terms 	are 	intended 	by 	the 	standing
order 	of 	the 	regents 	or 	the 	directors.
All 	matters 	not 	within 	the 	scope 	of
representation 	are 	reserved 	to 	the 	employer
and 	may 	not 	be 	subject 	to 	meeting 	and
conferring, 	...
105

The 	HEERA 	was 	not 	intended 	to 	intrude 	into 	the 	shared
governance 	principle 	nor 	the 	historical 	joint 	consultative
process 	between 	administration 	and 	faculty 	on 	decisions 	that.
effect 	the 	educational 	mission 	of 	the 	University. 	HEERA
Section 	3561. 	The 	UCAFT 	seems 	to 	argue, 	however, 	that 	the
regents 	have, 	by 	standing 	orders 	and 	later 	through 	Academic
Senate 	regulations, 	delegated 	the 	responsibility 	for 	the
integrity 	of 	a 	course 	to 	the 	individual 	instructors. 	The
University 	argues 	that 	there 	is 	no 	support 	for 	that 	conclusion,
that 	the 	responsibility 	lies 	with 	the 	academic 	departments, 	and
that 	if 	any 	individual 	is 	ultimately 	responsible, 	it 	is 	the
department 	chairperson 	or 	his/her 	equivalent.
In 	support 	of 	its 	contention1 	the 	UCAFT 	has 	offered 	the
testimony 	of 	Marde 	Gregory. 	It 	can 	be 	summarized 	as 	follows:
the 	Academic 	Senate, 	pursuant 	to 	standing 	orders 	of 	the
regents, 	and 	through 	regulation 	750(A) 	makes 	officers 	of
instruction 	responsible 	for 	the 	content 	and 	conduct 	of
courses;lecturers 	are 	officers 	of 	instruction; 	since 	the
Academic 	Senate 	has 	thus 	chosen 	to 	delegate 	its 	authority 	on
the 	conduct 	of 	courses 	to 	them, 	lecturers, 	and 	not 	the
University 	administration, 	are 	the 	persons 	who 	must 	determine
how 	a 	course 	should 	be 	covered 	while 	they 	are 	on 	released 	time
(e.g., 	by 	substitutes, 	guest 	lecturers, 	etc.).
Also 	in 	support 	of 	its 	contention 	that 	coverage 	of 	classes
during 	released 	time 	is 	mandatorily 	negotiable, 	Gregory
106

testified 	that 	student 	evaluations 	of 	courses 	are 	often 	used 	by
department 	chairpersons 	(or 	their 	equivalent) 	to 	evaluate 	a
lecturer's 	performance. 	Therefore, 	if 	a 	class 	is 	covered 	by
substitutes 	on 	a 	regular 	basis, 	some 	students 	express 	their
dissatisfaction 	with 	any 	ensuing 	adverse 	effect 	on 	the 	courses
by 	noting 	it 	on 	their 	evaluations. 	The 	evaluations, 	asserts
Gregory, 	are 	then 	used 	in 	determining 	whether 	a 	lecturer 	will
be 	recommended 	for 	such 	things 	as 	reappointment 	and/or 	for
merit 	salary 	increases. 	Because 	lecturers 	are 	thus 	burdened
with 	the 	responsibility 	of 	maintaining 	course 	integrity, 	and
because 	their 	employment 	may 	be 	adversely 	affected 	by 	negative
student 	evaluations 	as 	a 	result 	of 	poor 	class 	coverage
decisions, 	it 	was 	reasoned 	that 	lecturers 	must, 	by 	established
policy, 	be 	allowed 	to 	determine 	course 	coverage. 	For 	these
asserted 	reasons, 	the 	UCAFT 	repeatedly 	protested 	at 	the
negotiations 	table 	that 	the 	use 	of 	substitutes 	was 	an
inappropriate way 	to 	cover class 	sessions 	missed 	because 	of
released 	time.
Regential 	Standing 	Order 	105.2 	states, 	in 	pertinent 	part:
(b) 	The 	Academic 	Senate 	shall 	authorize 	and
supervise 	all 	courses 	and 	curricula 	offered
under 	the 	sole 	or 	joint 	jurisdiction 	of 	the
departments, 	colleges, 	schools, 	graduate
divisions, 	or 	other 	University 	academic
agencies 	...
The 	regulations 	of 	the 	Academic 	Senate, 	at 	section 	750(A),
provide 	as 	follows:
Only 	regularly 	appointed 	officers 	of
instruction 	holding 	appropriate
107

instructional 	titles 	may 	have 	substantial
responsibility 	for 	the 	content 	and 	conduct
of 	courses 	which 	are 	approved 	by 	the
Academic 	Senate.
Other 	than 	Gregory's 	interpretation 	of 	the 	regulation
above, 	there 	was 	no 	evidence 	offered 	to 	indicate 	its 	actual
intent 	or 	meaning. 	Her 	interpretation was 	not 	based 	upon
personal 	knowledge 	of 	the 	legislative 	history 	or 	deliberations
that 	led 	to 	its 	adoption.
It 	appears, 	not 	only 	from 	the 	face 	of 	the 	regulation, 	but
by 	its 	contextual 	setting 	and 	by 	other 	academic 	regulations,
that 	Gregory's 	conclusions 	are 	based 	on 	erroneous 	assumptions.
First, 	regulation 	750(A) 	is 	one 	of 	several 	that 	delineate
restrictions 	on who 	is 	authorized 	to 	have 	responsibility 	for
courses. 	It 	does 	not 	state 	that 	only 	those 	people 	teaching 	the
course 	may 	have 	responsibility, 	nor 	that 	the 	instructors 	have
ultimate 	responsibility. 	The 	regulation 	does 	not 	define
"officers 	of 	instruction," 	and 	there 	is 	no 	indication 	of 	what
is 	meant 	by 	"regularly 	appointed.~ 	There 	is 	no 	evidence 	in.the.•
record 	to 	support 	Gregory's 	conclusion 	that 	lecturers, 	as
opposed 	to 	department 	chairpersons 	or 	divisional 	deans, 	are
''officers 	of 	instruction," 	or 	that 	only 	lecturers 	fit 	within
the 	description.
While 	it 	may 	be 	reasonable 	to 	conclude 	that 	lecturers 	are
officers 	of 	instruction, 	it 	is 	unreasonable 	to 	assume 	that 	the
ultimate 	responsibility 	for 	course 	integrity 	lies 	solely 	with
108

each 	instructor, 	while 	excluding 	the 	academic 	administrators,
such 	as 	the 	department 	chairpersons. 	This 	determination 	is
consistent 	with 	the 	University's 	Academic 	Personnel 	Manual
(APM), 	containing 	policies 	promulgated 	pursuant 	to 	regential
standing 	orders.
Specifically, 	APM 	section 	752 	states 	the 	policy 	and
procedures 	for, 	inter 	alia, 	employee 	leaves 	of 	absence 	of 	seven
days 	or 	less. 	At 	section 	752-6, 	the 	language 	reads 	as 	follows:
Responsibility
If 	an 	appointee 	is 	granted 	this 	type 	of
leave, 	the 	appointee's 	department
chairperson 	shall 	be 	responsible 	for
adequate 	replacement 	of 	the 	faculty 	member
during 	the 	period 	of 	the 	leave, 	except 	that
the 	appointee 	receiving 	the 	leave 	shall 	be
responsible 	for 	the 	submission 	of 	any 	course
reports, 	etc.~ 	required 	during 	the 	period 	of
the 	absence.3~
As 	can 	be 	reasoned 	from 	the 	above, 	the 	department 	chairperson
has 	specifically 	been 	given 	the 	responsibility 	for 	coverage 	of
the 	duties 	of 	an 	absent 	faculty member, 	except 	for 	such 	things
as 	course 	reports. 	The 	situation 	is 	not 	appreciably 	different
from 	that 	in 	which 	a 	faculty 	member 	is 	absent 	due 	to 	approved
released 	time. 	Therefore, 	testimony 	of 	several 	University
witnesses 	that 	it 	is 	the 	academic 	department's 	responsibility,
38The 	section 	has 	apparently 	been 	in 	existence 	at 	least
since 	July 	1, 	1974 	from 	the 	face 	of 	the 	document. 	(See
Exh. 	MMM.)
109

through 	its 	chairperson 	(or 	equivalent), 	to 	arrange 	coverage 	of
m1sse	. 	d 	c 1 asses, 	1s	. 	more 	persuasive.	. 	39
The 	UCAFT's 	concerns 	regarding 	evaluations, 	while
well-taken 	and 	reasonable, 	do 	not 	necessarily 	lead 	to 	a
conclusion 	that 	class 	coverage 	decisions 	are 	negotiable. 	If
the 	concern 	is 	with 	the 	impact 	of 	released 	time 	on 	lecturers'
evaluations, 	the 	HEERA 	does 	not 	restrict 	the 	negotiability 	of
evaluations 	proposals 	for 	non-Senate 	faculty, 	unlike 	the
restriction 	(at 	section 	3562(q)(4)) 	relating 	to 	Senate
faculty. 	Thus, 	although 	the 	UCAFT 	could 	have 	submitted
proposals 	to 	eliminate 	or 	minimize 	the 	effect 	of 	released 	time
usage 	upon 	their 	evaluations, 	merit 	increases, 	etc., 	there 	is
no 	evidence 	that 	it 	sought 	to 	do 	so.
There 	are 	other 	reasons 	from 	which 	it 	must 	be 	concluded
that 	decisions 	regarding 	how 	missed 	class 	sessions 	are 	covered
are 	properly 	within 	the 	control 	of 	management 	and 	its
designees, 	and 	not 	a-matter 	within 	the 	scope 	of
representation. 	The 	academic 	integrity 	or 	conduct 	of 	courses
are 	not 	"wages, 	hours 	of 	employment, 	and 	other 	terms 	and
39APM 	section 	245, 	Appendix A, 	also 	charges 	chairpersons
with 	the 	responsibility 	"to 	make 	teaching 	assignments" 	in
accordance 	with 	Senate 	regulation 	750, 	to 	make 	other
assignments 	of 	duty 	to 	members 	of 	the 	department 	staff, 	and 	to
establish 	and 	supervise 	procedures 	on 	the 	use 	of 	guest
lecturers. 	(Exh. 	LLL.)
110

conditions 	of 	employment" 	as 	prescribed 	by 	HEERA. 	As 	the
Respondent 	points 	out 	in 	its 	brief,
The 	adequ~cy 	of 	the 	students' 	educational
experience 	is, 	instead, 	a 	concept 	at 	the
heart 	of 	education, 	and 	at 	the 	heart,
therefore, 	of 	the 	subjects 	reserved 	to 	the
entrepreneurial 	control 	of 	management.
Respondent's 	argument 	closely 	parallels 	the 	PERB's
rationale 	for 	excluding 	from 	the 	scope 	of 	mandatory
negotiations 	subjects 	that 	would 	significantly 	abridge 	an
employer's 	managerial 	prerogative, 	under 	the 	SEERA. 	State 	of
California 	(Department 	of 	Transportation) 	(1983) 	PERB 	Decision
No. 	361-s. 40 It 	is 	consistent 	with 	HEERA 	section 	3562(q)(3),
cited 	above, 	which 	excludes 	the 	"content 	and 	supervision 	of
courses" 	from 	scope. 	It 	is 	also 	consistent 	with 	statutory
language 	indicating 	that 	the 	Legislature 	meant 	to 	preserve 	the
joint 	decision-making 	process 	between 	the 	Academic 	Senate 	and
the 	administration 	over 	matters 	"essential 	to 	the 	performanc~
of 	the 	educational missions-0 	of 	the~universities. 	Government
Code 	section 	3561. 	To 	require 	collective 	bargaining 	over
decisions 	about 	how 	a 	course 	is 	to 	be 	covered 	would 	not
preserve 	that 	process, 	and 	would 	significantly 	intrude 	upon 	the
University's 	managerial 	prerogatives.
40sEERA 	(State 	Employer-Employee 	Relations 	Act) 	is
codified 	at 	Government 	Code 	sections 	3512, 	et 	seq. 	Its 	section
3516, 	while 	in 	some 	respects 	is 	different 	from 	HEERA 	section
3562(q), 	is 	virtually 	identical 	where 	subjects 	within 	scope 	are
delineated. 	In 	light 	of 	virtually 	identical 	language 	in 	the
pertinent 	portions 	of 	the 	statutes, 	the 	State 	of 	California
case, 	supra, 	is 	applicable 	and 	persuasive.
111

The 	University's 	choice 	to 	nevertheless 	negotiate, 	to 	a
limited 	extent, 	by 	agreeing 	in 	the 	ground 	rules 	to 	allow
lecturers 	consultative 	rights 	in 	determining 	class 	coverage
arrangements, 	while 	consistent 	with 	University 	policies 	that
encourage 	chairpersons 	to 	consult 	with 	colleagues 	on 	a 	number
of 	matters, 	is 	over 	and 	beyond 	what 	the 	HEERA 	requires 	under
section 	3562(q). 	It 	is 	therefore 	determined 	that 	the 	UCAFT's
proposals 	regarding 	how 	class 	sessions 	were 	to 	be 	covered 	while
the 	bargaining 	team was 	released, 	are 	not 	within 	the 	scope 	of
representation, 	and 	the 	University 	had 	no 	duty 	to 	meet 	and
confer 	over 	them. 	The 	allegation 	in 	the 	Unfair 	Practice 	Charge
on 	this 	issue 	is 	hereby 	dismissed.
2. 	Granting 	of 	"Reasonable 	Amounts" 	of 	Released 	Time
The 	record 	indicates 	that 	the 	University 	released 	the
entire 	UCAFT 	negotiating 	team 	for 	all 	time 	spent 	at
negotiations 	and 	for 	time 	they 	were 	on 	travel 	status. 	Althou9h
there 	is 	some 	evidence 	that 	one 	or 	more 	members 	of 	the 	team was
unable 	to 	attend 	in 	isolated 	instances, 	this 	was 	not 	due 	to 	the
fact 	that 	they were 	not 	released, 	but, 	as 	in 	Gary 	Adest's 	case,
because 	he 	decided 	that 	he 	needed 	to 	be 	in 	class 	because 	of
considerations 	such 	as 	the 	need 	to 	give 	examinations, 	etc.
Gregory's 	released 	time 	requests 	were 	granted, 	and, 	although
testifying 	that 	she 	personally 	did 	not 	believe 	they were
sufficient, 	she 	did 	not 	complain 	to 	any University 	officials
about 	it, 	nor 	request 	more 	time. 	Therefore, 	the 	UCAFT 	has 	not
112

demonstrated 	that 	the 	amount 	of 	released 	time 	given 	was
inadequate 	or 	unreasonable, 	or 	that 	the 	amount 	of 	released 	time
granted 	impeded 	the 	negotiation 	process. 	This 	aspect 	of 	the
released 	time 	allegations 	in 	the 	Unfair 	Practice 	Charge 	is 	.also
dismissed.
C. 	Allegations 	of 	Refusal 	to 	Meet 	and 	Confer
Section 	3570 	of 	the 	HEERA 	imposes 	a 	duty 	upon 	higher
education 	employers 	to 	meet 	and 	confer 	with 	employees'
exclusive 	representatives 	on 	all 	matters 	within 	the 	scope 	of
representation. 	This 	duty 	is 	analogous 	to 	the 	duty 	to 	bargain
imposed 	upon 	public 	school 	employers 	under 	the 	Educational
Employment 	Relations 	Act 	and 	upon 	private 	sector 	employers 	by
the 	National 	Labor 	Relations 	Act. 41
It 	is 	axiomatic 	that 	an 	employer's 	failure 	to 	meet 	and
negotiate 	in 	good 	faith 	with 	an 	exclusive 	representative 	about
a 	matter 	within 	the 	scope 	of 	representation 	is 	unlawful.
Additionally, 	a 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment 	within 	the 	scope 	of 	representation 	is, 	absent 	a
valid 	defense, 	a 	J2.sli. 	se 	refusal 	to 	negotiate. 	Pajaro 	Valley
Unified 	School 	District 	(1978) 	PERB 	Decision 	No. 	51; 	San 	Mateo
County 	Community 	College 	District 	(1979) 	PERB 	Decision 	No. 	94.
41The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
California 	Government 	Code 	section 	3540, 	et 	seq. 	The 	National
Labor 	Relations 	Act 	is 	codified 	at 	29 	U.S.C. 	Section 	151, 	et
seq.
113

An 	employer's 	duty 	is 	violated, 	for 	example, 	when 	it
unilaterally 	changes 	an 	established 	policy without 	affording
the 	exclusive 	representative 	a 	reasonable 	opportunity 	to
bargain. 	Grant 	Joint 	Union 	High 	School 	District 	(1982) 	PERB
Decision 	No. 	196; 	Pajaro 	Valley, 	supra.
Normally, 	it 	is 	within 	management's 	prerogative 	to
determine 	its 	organization, 	the 	services 	it 	renders, 	and 	the
method 	of 	delivery 	of 	such 	services. 	HEERA 	sections 	3562(q)(l)
and 	(3). 	However, 	when 	the 	subject 	does 	not 	merely 	involve 	a
restructuring 	of 	its 	organization, 	but 	is 	inherently 	related 	to
other 	terms 	and 	conditions 	of 	employment, 	such 	as 	workload,
hours, 	wages, 	transfers, 	etc., 	it 	is 	within 	the 	scope 	of
representation 	and 	cannot 	be 	altered 	without 	notice 	to 	the
exclusive 	representative 	and 	an 	opportunity 	to 	bargain. 	See
State 	of 	California 	(Dept. 	of 	Transportation), 	supra; 	Mt.
Diablo 	Unified 	School 	District 	(1983) 	PERB 	Decision 	No. 	373.
At' the 	very 	least;, 	a 	reorganization 	may 	be 	subject 	to
negotiations 	if 	it 	affects 	other 	terms 	and 	conditions 	of
employment. 	Ibid.
For 	example, 	staffing 	policies 	that 	are 	aimed, 	at 	least 	in
part, 	at 	regulating 	"employees' 	workloads" 	- 	the 	amount 	of
labor 	for 	which 	employees 	will 	be 	contractually 	obligated 	- 	are
subject 	to 	negotiation 	prior 	to 	a 	change. 	Davis 	Joint 	Unified
School 	District 	(1984) 	PERB 	Decision 	No. 	393. 	Policies
relating 	to 	the 	assignment 	of 	extra 	duties 	and 	adjunct 	duties
114

that 	include 	committee 	work 	during 	the 	workday, 	are 	subject 	to
negotiations. 	Anaheim 	City 	School 	District 	(1983) 	PERB
Decision 	No. 	364. 	Jefferson 	School 	District 	(1980) 	PERB
Decision 	No. 	133. 	The 	subjects 	of 	employee 	evaluations
procedures 	- 	with 	the 	proviso 	that 	evaluation 	of 	Academic
Senate 	faculty 	has 	been 	specifically excluded 	from 	the 	scope 	of
representation 	under 	HEERA 	section 	3562(q)(4) 	- 	and 	transfer
policies, 	are 	negotiable. 	Jefferson 	School 	District, 	supra;
State 	of 	California 	{Department 	of 	Transportation) 	(1983) 	PERB
Decision 	No. 	333-S. 	Additionally, 	the 	subject 	of 	re-employment
rights 	is 	related 	to 	virtually 	every 	subject 	within 	the 	scope
of 	bargaining 	and 	is 	negotiable. 	Healdsburg 	Union 	High 	School
District 	(1984) 	PERB 	Decision 	No. 	375.
Inherent 	in 	the 	Sears 	Plan was 	a 	component 	that 	called 	for
the 	transfer 	of 	speech 	lecturers 	to 	the 	Writing 	Program. 	To
this 	extent, 	the 	decision 	of 	whether 	to 	include 	transfer 	as~.
part 	of 	the 	Plan was 	a 	negotiable 	subject, 	and 	the 	University
was 	required 	to 	meet 	and 	confer 	with 	the 	UCAFT 	about 	that
decision. 	By 	telling 	the 	Union 	that 	it 	had 	no 	duty 	to 	meet 	and
confer 	until 	the 	actual 	transfers 	took 	place, 	and 	by 	refusing
its 	requests 	to 	negotiate 	before 	proceeding 	with 	the 	plan, 	the
University 	breached 	its 	duty 	to 	meet 	and 	confer, 	and 	thus
violated 	HEERA 	sections 	357l(c) 	and, 	derivatively, 	357l(b) 	and
357l(a).
115

The 	University's 	duty 	did 	not 	end 	there, 	however. 	There
were 	other 	components 	of 	the 	Plan 	that, 	although 	on 	their 	face
were 	management 	prerogatives, 	had 	an 	impact 	upon 	the 	lecturers'
hours, 	wages, 	and 	terms 	and 	conditions 	of 	employment. 	For
example, 	the 	Plan 	contemplated 	a 	"de 	facto'' 	disestablishment 	of
the 	Speech 	Department. 	The 	inevitable 	effects 	would 	be 	such
things 	as 	termination, 	non-reappointment, 	or 	transfer 	of
lecturers 	to 	other 	departments. 	Since 	there 	was 	no 	indication
of 	when 	the 	disestablishment 	would 	be 	completed, 	it 	was
possible 	that 	mid-year 	terminations 	would 	occur.
Also 	contemplated 	in 	the 	Plan was 	a 	gradual 	reduction 	of
the 	"heavy 	reliance" 	on 	lecturers 	in 	the 	new 	CS 	Program. 	As
noted 	in 	the 	factual 	statement 	above, 	this 	had 	the 	foreseeable
impact 	of 	termination 	or 	non-reappointment 	of 	CS 	lecturers 	as
well.
The 	transfer 	(speech 	lecturers) 	component 	of 	the 	Plan, 	in
itself 	negotiable, 	had 	the 	additional 	foreseeable 	impact 	that
lecturers 	would 	face 	automatic 	termination 	because 	of 	the
Writing 	Program's 	policy 	of 	hiring 	lecturers 	only 	on 	the 	basis
of 	100% 	appointments 	and 	its 	adherence 	to 	a 	four-year 	rule.
Even 	if 	the 	Writing 	Program 	had 	applied 	the 	eight-year 	rule 	to
transferees, 	the 	100% 	appointment 	policy would 	have 	produced
the 	same 	result.
Another 	foreseeable 	impact 	of 	the 	reorganization 	plan 	was
the 	effect 	on 	lecturers' 	workload. 	As 	noted 	above, 	because 	of
the 	nature 	of 	assignments 	in 	the 	Writing 	Program, 	the 	lecturers
116

in 	speech would 	have 	been 	required 	to 	either 	conform 	to 	a 	new
program's 	requirements, 	or 	a 	modification would 	have 	had 	to 	be
negotiated. 	Becaus~ 	of 	this 	historical 	difference 	in
assignments, 	the 	transfer 	also 	impacted 	on 	the 	areas 	of 	extra
duties 	(e.g., 	participation 	in 	committees) 	and 	evaluations 	(new
set 	of 	criteria).
The 	University 	asserts 	that 	it 	did 	not 	breach 	its 	duty 	to
negotiate 	because, 	inter 	alia, 	some 	of 	the 	negotiable 	impacts
of 	the 	Plan were 	never 	implemented 	(e.g., 	transfer 	of
lecturers), 	the 	duty 	to 	bargain 	did 	not 	arise 	until 	those
negotiable 	effects 	were 	implemented, 	and 	that 	the 	Union 	never
formally 	made 	a 	demand 	to 	bargain.
Each 	of 	Respondent's 	assertions 	must 	be 	rejected. 	An
employer 	has 	a 	duty 	to 	provide 	notice 	and 	an 	opportunity 	to
negotiate 	the 	effects 	of 	a 	managerial 	decision 	that 	impacts 	on
subjects 	within 	the 	scope 	of 	representation, 	when 	it 	reaches 	a
firm 	decision 	to 	implement 	the 	decision. 42 Mt. 	Diablo
Unified 	School 	District 	(1983) 	PERB 	Decision 	No. 	373 	(dealing
with 	effects 	of 	layoffs). 	A union 	need 	not 	prove 	that 	an
actual 	unilateral 	change 	in 	employees' 	working 	conditions
resulted 	from 	the 	decision 	as 	a 	precondition 	to 	finding 	a 	duty
on 	the 	part 	of 	the 	employer 	to 	negotiate 	its 	impact. 	On 	the
contrary, 	the 	exclusive 	representative 	need 	only 	produce
42This 	would 	not 	apply 	to 	a 	subject, 	such 	as 	transfers,
where, 	as 	noted 	above, 	there 	is 	a 	duty 	to 	negotiate 	over 	the
decision 	itself.
117

sufficient 	evidence 	to 	establish 	that 	the 	decision 	would 	have
reasonably 	foreseeable 	adverse 	impact 	on 	employees' 	working
conditions.
In 	Newark Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	225, 	the 	Board 	upheld 	an 	administrative 	law 	judge's 	finding
that, 	although 	the 	impact 	of 	a 	proposed 	layoff 	was 	speculative
at 	the 	time 	the 	union 	made 	a 	request 	for 	negotiations, 	the
employer 	was 	obligated 	to 	bargain 	over 	those 	admittedly
speculative 	effects. 	In 	response 	to 	the 	argument 	that 	the
union 	did 	not 	prove 	that 	the 	layoff 	had 	an 	actual 	effect 	on
matters 	within 	scope 	and 	hence 	did 	not 	violate 	the 	Act, 	the
Board 	quoted, 	with 	approval, 	the 	following 	language 	of 	the
administrative 	law 	judge:
[I]t 	would 	not 	be 	consistent 	with 	PERB's
decisions 	in 	this 	area 	to 	leave 	the 	judgment
of 	whether 	or 	not 	a 	subject 	is
"substantially" 	affected 	(and 	subject 	to
negotiations) 	to 	the 	exclusive 	and
unilateral 	province 	of 	an 	employer. 	Leaving
such 	a 	decision 	in 	the 	employer's 	hands
would 	thwart 	the 	collective 	negotiations
objectives 	set 	forth 	in 	EERA, 	the 	salutory
purposes 	of 	which 	were 	fully 	discussed 	in
San Mateo 	County 	Community 	College 	District,
supra, 	at 	14-17.
The 	Board 	reasoned 	that 	bargaining 	before 	the 	actual 	impact
occurs 	can 	potentially 	be 	of 	the 	greatest 	value.
The 	record 	reveals 	that 	the 	University 	breached 	its 	duty 	at
each 	step 	of 	the 	process. 	First, 	no 	notice 	was 	ever 	officially
given 	to 	the 	UCAFT 	of 	the 	Sears 	Plan. 	The 	Union 	first 	learned
of 	it 	indirectly 	on 	about 	September 	10, 	1984 	through 	the
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dissemination 	to 	the 	faculty 	of 	the 	Sears 	letter 	wherein 	the
skeletal 	outlines 	of 	the 	plan 	were 	written. 	Not 	only was 	this
letter 	distributed 	after 	a 	firm 	decision 	had 	been 	made 	to
proceed 	with 	implementation, 	but 	implementation 	had 	already
begun. 	The 	UCAFT was 	thus 	denied 	timely 	notice 	and 	a
reasonable 	opportunity 	to 	bargain 	prior 	to 	implementation.
Secondly, 	in 	Newman-Crow's 	Landing 	Unified 	School 	District
(1982) 	PERB 	Decision 	No. 	223, 	the 	PERB 	reiterated 	its
long-standing 	rule 	that 	it 	is 	not 	essential 	that 	a 	request 	to
negotiate 	be 	specific 	or 	made 	in 	a 	particular 	form. 	As 	noted
in 	the 	above 	findings 	of 	fact, 	it 	is 	determined 	that 	the
UCAFT's 	repeated 	demands 	at 	the 	negotiations 	table 	satisfied
its 	requirement. 	Indeed, 	the 	facts 	indicate 	that 	these 	demands
far 	exceeded 	the 	degree 	of 	specificity 	that 	the 	Board 	found
legally 	sufficient 	in 	Goleta 	Union 	School 	District 	(1984) 	PERB
Decision 	No. 	391. 	When 	the 	UCAFT 	finally 	received 	constructtye
notice 	of 	the 	Sears 	Plan~ 	it 	made 	repeated 	requests 	to 	bargain
beginning 	in 	October 	1984.
Third, 	after 	the 	UCAFT 	expressed 	its 	desire 	to 	bring 	the
Sears 	Plan 	to 	the 	negotiations 	table, 	the 	"responses" 	it
received 	from 	the 	University 	amounted 	to 	an 	outright 	refusal 	to
bargain. 	Initially 	it 	was 	met 	by 	statements 	that 	only 	the
effects 	of 	the 	Sears 	Plan 	on 	working 	conditions 	were 	negotiable
and 	that 	there 	was 	no 	need 	to 	negotiate 	because 	those 	effects
had 	not 	occurred 	yet. 	Then, 	it 	was 	met 	by 	a 	constant 	refrain
from 	negotiator 	Bickal 	that 	he 	was 	"looking 	into" 	the
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situation. 	The 	record 	does 	not 	indicate 	an 	expression 	of
willingness 	on 	the 	University's 	part 	to 	bargain 	at 	the 	table
about 	any 	aspect 	of/the 	Sears 	Plan, 	whether 	it 	be 	transfers 	of
faculty 	or 	indirect 	impacts 	of 	the 	plan. 	That 	the 	University
could 	proceed 	to 	implement 	every 	part 	of 	the 	plan 	and 	deny 	the
Union 	the 	opportunity 	to 	negotiate 	job 	guarantees 	for 	over 	a
year 	on 	the 	basis 	that 	foreseeable 	impacts 	had 	not 	occurred 	yet
is 	contrary 	to 	law. 	By 	its 	conduct, 	the 	University 	thus
violated 	HEERA 	section 	357l(c) 	and, 	derivatively 	(a) 	and
(b).43
IV. 	REMEDY
The 	PERB 	is 	empowered 	to 	issue 	a 	decision 	and 	order
directing 	a 	party 	offending 	the 	HEERA 	to 	take 	such 	affirmatvie
action 	as 	will 	effectuate 	the 	policies 	of 	the 	Act.
Accordingly, 	in 	addition 	to 	ordering 	Respondent 	to 	cease 	and
desist 	from 	refusing 	to 	meet 	and 	confer 	in good 	faith 	over 	the
foreseeable 	and 	negotiable 	impacts 	of 	the 	Sears 	Plan, 	as
outlined 	above, 	it 	is 	appropriate 	to 	order 	that 	it 	suspend
implementation 	of 	that 	Plan 	until 	such 	time 	as 	the 	meet 	and
43The 	UCAFT's 	apparent 	assertion, 	during 	the 	hearing 	that
such 	things 	as 	the 	rotation 	of 	the 	department 	chairperson 	were
within 	scope 	is 	rejected, 	inasmuch 	as, 	consistent 	with 	the
analysis 	above, 	it 	is 	a 	management 	prerogative. 	Similarly,
there 	was 	no 	evidence 	that 	the 	rotation 	of 	the 	chairmanship 	was
linked 	to 	any 	exercise 	of 	protected 	rights.
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confer 	process 	is 	completed, 	either 	by 	agreement 	of 	the 	parties
or 	after 	completion 	of 	its 	obligations 	under 	the 	impasse
procedures 	outlined~~t 	HEERA 	section 	3590, 	et 	seq.
Inasmuch 	as 	the 	delay 	in 	the 	speech 	lecturer's 	receipt 	of
their 	paychecks 	in 	June 	of 	1985 	was, 	at 	least 	in 	part, 	a 	result
of 	the 	University's 	failure 	to 	meet 	its 	obligations 	under 	HEERA
section 	3570, 	Respondent 	shall 	be 	ordered 	to 	make 	such
employees 	whole 	for 	any 	losses 	incurred 	as 	a 	result 	of 	that
delay, 	including 	the 	payment 	of 	interest 	at 	10 	percent 	per
annum.
It 	is 	also 	appropriate 	that 	the 	Respondent 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	this 	order. 	The
notice 	should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the
University, 	indicating 	that 	it 	will 	comply with 	the 	terms
thereof. 	The 	notice 	shall 	not 	be 	reduced 	in 	size, 	defaced,
• altered 	or 	covered 	by 	any 	material. 	Posting 	such 	notice 	will
provide 	employees 	with 	notice 	that 	the 	University has 	acted 	in•
an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	this 	activity. 	It 	effectuates 	the 	policies 	of 	the 	Act
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	will 	announce 	the 	Respondent's 	readiness 	to 	comply 	with 	the
ordered 	remedy. 	See 	Placerville 	Union 	School 	District 	(1978)
PERB 	Decision 	No. 	69, 	and 	Pandol 	and 	Sons 	v. 	Agricultural 	Labor
Relations 	Board 	(1979) 	98 	Cal.App.3d 	580, 	587.
121

The 	remaining 	allegations, 	not 	specifically determined
above 	to 	be 	violative 	of 	the 	Act, 	are 	hereby 	DISMISSED.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	HEERA
section 	3563.3, 	it 	is 	hereby 	ORDERED 	that 	the 	Respondent, 	and
its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
(1) 	Failing 	to 	meet 	and 	confer 	in 	good 	faith 	with 	the
University 	Council, 	American 	Federation 	of 	Teachers, 	AFL-CIO
over 	those 	aspects 	of 	the 	Sears 	Reorganization 	Plan 	that 	have
foreseeable 	impact 	on 	the 	terms 	and 	conditions 	of 	employment 	of
Unit 	18 	members.
(2) 	Failing 	to 	give 	notice 	and 	a 	reasonable
opportunity 	to 	bargain 	to 	the 	University 	Council, 	American
Federation 	of 	Teachers, 	before 	including 	in 	the 	Sears
Reorganization 	Plan 	any 	component 	that 	related 	to 	the 	wages,
hours, 	or 	terms 	and 	conditions 	of 	employment 	of 	Unit 	18 	members.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTURATE 	THE 	POLICIES 	OF 	THE 	HIGHER 	EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
(1) 	Suspend 	further 	implementation 	of 	the 	Sears
Reorganization 	Plan 	until 	the 	meet 	and 	confer 	process 	mentioned
above 	is 	completed, 	either 	by 	agreement 	of 	the 	parties 	or 	after
completion 	of 	Respondent's 	obligations 	under 	the 	impasse
procedures 	outlined 	at 	HEERA 	section 	3590 	et 	seq.
122

(2) 	Make 	whole 	the 	lecturers 	in 	the 	Speech 	Department
of 	the 	UCLA 	campus 	for 	all 	losses 	incurred 	as 	a 	result 	of 	the
delay 	in 	receiving 	their 	pay 	during 	the 	summer 	of 	1985,
including 	interest 	at 	10 	percent 	per 	annum.
(3) 	Sign 	and 	post 	copies 	of 	the 	attached 	Notice
marked 	"Appendix" 	in 	conspicuous 	places 	where 	notices 	to
employees 	are 	customarily 	placed 	at 	its 	headquarters 	office 	and
at 	each 	of 	its 	campus 	sites 	for 	thirty 	(30) 	consecutive
workdays 	during 	the 	regular 	academic 	workyear. 	Copies 	of 	this
Notice, 	after 	being 	duly 	signed 	by 	the 	authorized 	agent 	of 	the
University~ 	shall 	be 	posted 	within 	ten 	(10) 	workdays 	from 	the
date 	this 	Decision 	becomes 	final. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	the 	notice 	is 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered 	by 	any 	other 	material.
(4) 	Upon 	issuance 	of 	a 	final 	decision, 	make 	written
notification 	of 	the 	actions 	taken 	to 	comply with 	this 	order 	to
the 	San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with 	his/her 	instructions.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	unless 	a 	party 	files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 	20 	days 	of 	service 	of 	this 	Decision. 	In 	accordance 	with
PERB 	Regulations, 	the 	statement 	of 	exceptions 	should 	identify,
by 	page 	citation 	or 	exhibit 	number, 	the 	portions 	of 	the 	record,
123

if any, relied upon for such exceptions. See California
Administrative Code, title 8, part III, section 32300. A
document is considered "filed" when actually received before
the close of business (5:00 p.m.) on the last day set for
filing, " . . . or when sent by telegraph or certified or
Express United States mail, postmarked not later than the last
day for filing " 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, section 32300 and 32305.
Dated: December 19, 1986
124
,
j "'---	MANUEL M. MELGOZA
Administrative Law Judge