Regents of the University of California (California Nurses Association) (PERB 0722H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA NURSES ASSOCIATION,
Charging 	Party,
v.
THE 	REGENTS 	OF THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
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) 	Case 	No. 	SF-CE-247-H
PERB 	Decision No. 	722-H
March 	3, 	1989
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Appearances: 	Beeson, 	Tayer, 	Silbert & Bodine by Kenneth C.
Absalom, 	Attorney, 	for the California Nurses Association; 	Susan
M. 	Thomas, 	Attorney, 	for The Regents of the University of
California.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Regents 	of 	the 	University of 	California 	(University 	or
Respondent) 	to 	the proposed decision 	(attached hereto) 	of 	the
PERB 	administrative 	law 	judge 	(ALJ) 	in an unfair 	labor practice
case 	filed by the 	California Nurses Association 	(CNA) . 	The ALJ
found 	that 	the 	University 	violated 	the 	Higher 	Education 	Employer
Employee Relations Act 	(HEERA), 	Government Code section 3571 (c),1
1HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Section 3571(a), 	(b) 	and (c) 	states:
It 	shall 	be 	unlawful 	for 	the 	higher 	education employer 	to;
(a) 	Impose 	or threaten to 	impose 	reprisals 	on
employees, 	to discriminate or threaten to
discriminate 	against 	employees, 	or otherwise 	to
interfere with, 	restrain, 	or coerce employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by
__ )

and, 	d e r i v a t i v e l y , 	(a) 	and 	(b) , 	by u n i l a t e r a l l y c o n v e r t i n g
b a r g a i n i n g 	unit 	p o s i t i o n s 	to 	newly 	created 	supervisory 	p o s i t i o n s
o u t s i d e 	the 	u n i t , 	midway 	through 	the 	collective 	b a r g a i n i n g
a g r e e m e n t , 	w i t h o u t 	first 	going 	through 	PERB's 	u n i t 	m o d i f i c a t i o n
p r o c e d u r e s .
The 	B o a r d , 	after 	r e v i e w of 	the 	entire 	record, 	finds 	the
A L J ' s 	findings 	of 	fact 	to 	be 	free 	from p r e j u d i c i a l 	e r r o r . 	We 	are
a l s o 	in 	substantial 	agreement 	w i t h 	his 	conclusions 	of 	law, 	and
affirm 	the 	A L J ' s 	d e c i s i o n , 	consistent 	w i t h 	the 	d i s c u s s i o n 	b e l o w .
D I S C U S S I O N
The 	p r i m a r y 	issue 	before 	PERB 	is 	w h e t h e r 	the 	U n i v e r s i t y 	had
an 	o b l i g a t i o n 	to 	exhaust 	the 	Board's 	unit 	m o d i f i c a t i o n 	p r o c e d u r e s
b e f o r e 	excluding 	the 	employees 	in 	q u e s t i o n 	from 	the 	b a r g a i n i n g
u n i t , 	even 	assuming 	that 	at 	least 	some 	of 	the 	excluded 	e m p l o y e e s
w e r e 	s u p e r v i s o r s . 	The 	A L J 	concluded 	that 	in d i s p u t e d 	c a s e s , 	a
u n i t 	m o d i f i c a t i o n 	can 	be 	accomplished 	only 	through 	PERB's 	u n i t
m o d i f i c a t i o n p r o c e d u r e . 	In 	reaching 	his 	c o n c l u s i o n , 	the 	A L J
r e j e c t e d 	the 	U n i v e r s i t y ' s 	p o s i t i o n 	that 	it 	w a s 	entitled 	to
u n i l a t e r a l l y 	transfer 	alleged 	supervisors 	into 	n e w
c l a s s i f i c a t i o n s 	and 	engage 	in 	a 	"technical 	refusal 	to 	b a r g a i n " 	as
an 	alternative 	m e a n s 	of 	testing 	the 	contours 	of 	an 	e x i s t i n g 	u n i t .
this 	chapter.
(b) 	Deny 	to 	employee 	o r g a n i z a t i o n s 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	of 	fail 	to 	engage 	in m e e t i n g 	and
conferring 	w i t h 	a n 	exclusive 	r e p r e s e n t a t i v e .
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In 	finding 	that 	the 	University's 	failure 	to 	exhaust 	PERB's 	unit
modification procedure 	constituted 	an unfair 	labor practice, 	the
ALJ relied on HEERA, 	PERB regulations, 	and PERB precedent.
HEERA, 	section 3563, 	gives PERB, 	inter alia, 	the 	following powers
and duties:
(a) 	To determine 	in disputed cases, 	or
otherwise approve, 	appropriate units.
(e) 	To 	establish by regulation appropriate
procedures 	for 	review of 	proposals 	to 	change
unit determinations.
(f) 	To adopt 	. 	. 	. 	rules and regulations to
carry out 	the 	provisions 	and 	effectuate 	the
purposes 	and policies 	of 	this 	chapter.
(k) 	To decide 	contested matters 	involving
recognition, 	certification, 	or
decertification 	of 	employee 	organizations.
Pursuant to section 3563 (e) 	and 	(f) , 	PERB adopted PERB
Regulation 	32781, 	which 	specifically details 	the 	procedures 	that
parties 	must 	follow to 	obtain modification 	of 	an 	existing
bargaining unit. 	Regulation 32781 	provides,2 in pertinent part,
2PERB 	Regulations 	are 	codified at 	the 	California 	Code 	of
Regulations, 	Title 8, 	Part III, 	section 31001 	et seq. 	Regulation
32781 	was 	amended effective 	January 	1, 	1989. 	The 	following
language 	precedes 	the 	regulation as 	quoted 	in 	the 	text:
Absent 	agreement 	of 	the 	parties 	to modify 	a
unit, 	an exclusive representative, 	an
employer, 	or both must 	file 	a petition 	for
unit 	modification 	in 	accordance 	with 	this
section. . . .
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that:
Parties 	who wish 	to 	obtain Board 	approval 	of
a 	unit 	modification may 	file 	a 	petition 	in
accordance with a provision of 	this 	section.
(b) 	A recognized or 	certified 	employee
organization, 	an employer, 	or both jointly
may 	file 	with 	the 	regional 	office 	a 	petition
for 	change 	in unit determination:
(1) 	To delete 	classifications 	or positions
no 	longer 	in 	existence 	or which by virtue 	of
changes 	in circumstances 	are 	no 	longer
appropriate 	to 	the 	established unit;
(4) 	to clarify the unit where 	the 	creation
of 	a 	new classification or position has
created a 	dispute 	as 	to whether 	the 	new
classification or position 	is 	or 	is 	not
included 	in the 	existing unit.
The 	above-cited provisions 	of 	HEERA and 	the 	PERB 	regulation
indicate 	that 	the 	filing 	of 	a petition 	for unit 	modification 	is
the 	proper 	mechanism by which 	PERB 	can 	exercise 	its 	authority 	to
decide, 	in disputed cases, 	whether changed circumstances 	justify
any proposed modification 	to 	an existing unit. 	The 	applicable
regulation does not, 	as urged by the University, 	contemplate 	the
use 	of 	the 	technical 	refusal 	to bargain 	to 	secure 	PERB 	review of
a 	disputed 	unit 	modification.
PERB 	decisional 	law has 	not 	sanctioned 	an 	employer's 	refusal
to 	recognize 	an 	exclusive 	bargaining 	representative 	based 	on 	the
employer's 	unilateral 	determination that 	the unit 	is, 	for 	some
reason, 	inappropriate. 	In the 	case 	of 	Redondo Beach City School
District 	(1980) 	PERB Decision No. 	140, 	PERB held:
4

In 	the 	absence 	of 	the presentation of 	newly
discovered 	or 	previously 	unavailable 	evidence
or 	special 	circumstances 	relitigation of
PERB's 	unit 	determination 	is 	not warranted.
PERB's 	unit 	determination 	is 	therefore
binding p r e c e d e n t . . . .
In the 	instant case, 	CNA, 	following unit determination
proceedings 	entitled 	In 	the 	Matter 	of 	Unit 	Determination 	For
Professional 	Patient 	Care 	Employees 	of 	the 	University of
California 	(1982) 	PERB Decision No. 	248-H; 	In the Matter of Unit
Determination 	for 	Professional 	Patient 	Care 	Employees 	of 	the
University of California 	(1983) 	PERB Decision No. 	248b-H, 	was
certified as 	the 	exclusive 	bargaining 	representative 	for 	a 	unit
consisting of 	several 	registered nurse 	job 	titles. 	Thereafter,
the 	parties 	entered 	into 	collective 	bargaining 	agreements
covering 	the 	job 	titles 	found by PERB 	to be 	appropriate. 	To
effectuate 	a 	change 	in 	the 	unit, 	the 	University was 	obligated to
present 	"newly 	discovered 	or 	previously 	unavailable 	evidence 	or
special 	circumstances" 	through 	the 	PERB unit modification
procedure 	[PERB Regulation 32781(b)(1)].
PERB 	has 	not 	previously been 	called upon 	to 	decide 	the
specific 	question presented 	in 	the 	instant 	case. 	Yet 	in Mount
San Antonio 	Community College 	District 	(1983) 	PERB 	Decision No.
334,3 a 	case 	strongly relied upon by the ALJ, 	PERB disapproved of
employers' 	unilaterally determining which 	employees 	or 	duties 	are
3Mount San Antonio Community College District 	(1983), 	supra,
is 	currently before 	the 	California Court 	of Appeal, 	Second
Appellate District 	(Civ. 	No. 	B036249) 	on an unrelated issue.
5

to 	remain part 	of 	an established bargaining unit. 	In 	reaching
its 	conclusion, 	PERB noted:
In the 	absence 	of 	a 	determination by the
Board 	that 	a particular 	employee 	is
supervisory, 	that 	employee 	and that 	employees
duties 	belong 	to 	the 	bargaining unit. 	This
is 	true 	regardless 	of whether 	some part 	of
those 	duties 	may 	involve 	supervisory
functions.
(At fn. 	7.)
In the 	instant 	case, 	the 	University both unilaterally
reassigned unit 	employees 	to non-unit positions 	and, 	by virtue 	of
that 	reassignment, 	also 	transferred unit work outside 	the
existing unit. 	The 	University's 	withdrawal 	of 	recognition 	from
CNA, 	vis-a-vis 	the 	approximately 	140 	employees 	that were
transferred 	into 	the 	supervisory 	classifications, 	clearly
constituted 	a 	midterm modification 	of 	an 	existing 	unit.
In 	similar circumstances, 	the National 	Labor Relations 	Board
(NLRB) 	has 	held that 	a midterm withdrawal 	of 	recognition 	is 	an
unfair 	labor practice, 	even 	if 	the 	disputed classification would
otherwise 	be 	excluded either under 	a 	statutory exclusion, 	or
under 	exclusionary 	language 	contained 	in 	the 	recognition 	clause
of 	a 	collective 	bargaining 	agreement.4
The 	NLRB 	has 	dismissed unit 	clarification petitions 	filed
midway 	through 	a 	collective 	bargaining 	agreement, 	even where 	the
4While PERB 	is 	not 	bound by 	the 	NLRB 	or 	federal 	court 	cases
interpreting 	the 	NLRA, 	it may 	take 	cognizance 	of 	federal
precedent 	in 	interpreting provisions 	of 	the 	HEERA where 	the
provisions 	are 	similar to language 	in the NLRA. 	(See, 	e.g.
California 	State 	University Hayward 	(1987) 	PERB Decision No.
607-H.)
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basis 	of 	the 	petition 	is 	the 	alleged 	supervisory 	status 	of 	the
classifications 	in question. 	(See 	e.g., 	Arthur C. 	Logan Memorial
Hospital 	(1977) 	231 NLRB No. 	119 	[96 LRRM 1063] ; 	Northwest
Publications Inc. 	(1972) 	200 NLRB No. 	20 	[81 LRRM 1448]; 	Wallace
Murray Corp. 	(1971) 	192 NLRB No. 	160 	[78 	LRRM 1046].)
In Arizona Electric Power Coop. 	(1980) 	250 NLRB No. 	110 	[104
LRRM 	1464] , 	the NLRB held that 	an employer violated the NLRA by
removing employees 	from the 	bargaining unit, 	even though at 	least
one 	such employee was 	in 	fact 	a 	statutory 	supervisor. 	Citing
Arthur C. 	Logan Memorial Hospital, 	supra, 	the NLRB reasoned:
Since 	we 	have 	dismissed midterm petitions 	to
exclude 	alleged 	supervisors 	on 	the 	ground
that 	to 	entertain 	them would be 	disruptive 	of
established bargaining relationships, 	it
would be 	anomalous 	were we 	here 	to permit
Respondent 	to 	engage 	in 	the 	far more
disruptive 	practice 	of 	unilaterally modifying
the 	scope 	of 	a unit during the 	life 	of 	a
contract 	covering that unit. 	104 	LRRM at
1446.
In 	so holding, 	the NLRB reaffirmed 	its 	established rule 	that:
. 	integrity of a bargaining unit cannot
be unilaterally attacked, 	and that once 	a
unit 	is 	certified 	it 	may be 	changed only by
mutual 	agreement 	of 	the 	parties 	or by Board
action. 	Id.
In 	the 	case 	of 	Carolina 	Telephone 	and Telegraph Co. 	(1981)
258 NLRB No. 	189 	[108 LRRM 1185] , 	an employer, 	had executed a
collective 	bargaining 	agreement 	with 	a 	unit 	which 	included
stenographic 	clerks. 	The 	employer had 	full 	knowledge 	of 	the
nature 	of 	the 	clerk's 	duties. 	During midterm of 	the 	agreement,
the 	employer withdrew recognition 	from 	the 	union 	as
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representative 	of 	said employees. 	Citing Arizona 	Electric,
supra, 	the 	NLRB 	concluded 	that 	the 	unilateral 	modification of 	the
scope 	of 	the 	unit 	during midterm of 	the 	parties 	collective
bargaining unit 	constituted 	a 	violation 	of 	the
duty 	to 	bargain 	and 	an 	interference 	with 	employee 	rights.
The 	NLRB 	has 	also 	specifically held 	that 	a 	unit 	may be
clarified 	only 	by 	filing 	a 	petition 	for 	unit 	clarification
pursuant 	to 	the 	NLRB's 	rules 	and regulations. 	In rejecting an
employer's 	contention 	that 	it 	could 	unilaterally withdraw
recognition 	from 	the 	union 	for 	employees 	who were 	allegedly
guards 	under 	the NLRA, 	the NLRB noted:
We 	find 	it 	unnecessary 	to 	determine 	whether
the 	three 	individuals 	classified 	as 	operators
are 	guards 	under 	the Act because 	even 	if 	they
are, 	the 	Respondent would not be 	justified 	in
withdrawing 	recognition 	from 	the 	Union.
Guards 	are 	excluded 	in 	the 	unit 	description,
and if 	the Respondent believes, 	that certain
individuals 	should be 	excluded because 	of
their guard 	status, 	the proper procedure 	for
determining 	the 	issue 	is 	unit 	clarification,
not withdrawal 	of 	recognition. 	See 	Board's
Rules and Regulations, 	Secs. 	102.60(b) 	and
102.61(d).
(ACL Corporation d/b/a Atlanta Hilton 	(1986) 	278 NLRB No. 	76 	[122
LRRM 1012, 	1013 at fn. 	1] . )
Based upon the 	rationale 	set 	forth in the 	cases 	above, 	we
reject 	the 	University's 	contention 	that 	the ALJ 	should have 	made
specific 	factual 	findings 	as 	to whether 	each of 	the 	employees
transferred out 	of 	the 	unit was 	or was 	not 	a 	supervisor.
Contrary to 	the 	University's 	implication, 	the 	University's 	filing
of 	a 	unit 	modification petition 	after 	it 	had 	implemented 	the
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transfer 	and 	the 	resulting 	settlement 	agreement 	certainly 	have 	no
relevance 	as 	to 	the propriety of 	its 	earlier actions. 	The ALJ
properly 	considered 	the 	settlement 	agreement 	as 	the 	basis 	for 	his
determination that, 	in terms of a remedy, 	restoration of the
status 	quo 	ante would not be 	in the 	best 	interest 	of 	the 	parties.
The 	University 	cites 	NLRB 	and Agricultural 	Labor 	Relations
Board 	(ALRB) 	decisions 	in 	support 	of 	its 	contention that 	an
employer may engage 	in a 	"technical 	refusal 	to bargain" 	as 	an
alternative 	means 	of 	challenging 	the 	composition 	of 	a 	certified
unit 	covered by 	an 	existing 	collective 	bargaining 	agreement.
(J.R. 	Norton Co. 	v. 	ALRB 	(1979) 	26 Cal.3d. 	1; 	Boire v. 	Greyhound
Corp. 	(1964) 	376 	US 	473.) 	The 	cases 	cited by Respondent are
inapposite. 	The 	NLRB and ALRB have 	condoned 	the 	use 	of 	a
"technical 	refusal 	to bargain" 	only as 	a means 	of 	attacking
initial 	certification proceedings, 	immediately 	following 	the
completion of 	a 	representation election. 	In the 	instant 	case,
the 	University's 	unilateral 	withdrawal 	of 	recognition 	of 	CNA as
collective 	bargaining 	representative 	for 	approximately 	140 	nurses
occurred during 	the 	life 	of 	an 	existing 	collective 	bargaining
agreement.
In summary, 	PERB statutes and regulations, 	as well 	as
decisional 	law under 	the 	NLRA, 	clearly 	support 	the ALJ's
conclusion 	that 	in disputed 	cases 	the 	only method 	available 	to 	an
employer 	seeking 	to 	convert 	bargaining 	unit 	positions 	to 	newly
created 	supervisory positions 	is 	through 	the 	filing 	of 	a 	timely
unit 	modification petition.
9

The ALJ 	declined 	to 	reach 	the 	issue 	of 	whether 	the
University breached 	any 	obligation 	to 	negotiate 	about 	the 	actions
it took. 	The University, 	in its exceptions, 	charges 	that the ALJ
failed 	to 	find 	an 	issue 	of 	an 	asserted 	obligation 	to 	bargain,
ruled on 	the 	issue 	he 	claims 	does 	not 	exist, 	and based his 	remedy
on that 	ruling. 	Respondent misconstrues 	the 	decision. 	The ALJ
found, 	and correctly 	so, 	that whether or not 	the University did
or 	did 	not 	satisfy 	any 	asserted 	obligation 	to 	bargain 	is
irrelevant 	to 	the 	outcome 	of 	this 	case. 	The 	University's 	midterm
withdrawal 	of 	recognition of 	CNA as 	the 	collective 	bargaining
representative 	for 	the 	alleged 	supervisory 	employees 	constitutes
a 	refusal 	or 	failure 	to 	engage 	in meeting 	and 	conferring with 	an
exclusive 	representative, 	a denial 	of 	the 	rights 	of 	CNA to
represent 	its 	members 	and 	an 	interference 	with 	employee 	rights.5
The ALJ 	correctly 	found a violation of 	section 	3571(c) 	and,
derivatively, 	(b) . 	We also find that the 	facts of this 	case
support 	the 	allegations 	in 	the 	complaint 	of 	independent
violations of 	(a) 	and 	(b) . 	Consistent with our decision in
Tahoe-Truckee 	Unified School 	District 	(1988) 	PERB 	Decision No.
688, 	we 	do not 	affirm the ALJ's 	finding of 	a derivative 	violation
of 	(a) 	based 	solely on the 	finding of 	a 	(c) 	violation.
5NLRB decisional 	law has 	recognized 	the 	unilateral
modification of 	the 	scope 	of 	the 	unit 	during 	the 	midterm of 	the
parties' 	collective bargaining agreement 	as 	both a violation of
the 	duty 	to 	bargain 	collectively 	and 	an 	interference 	with
employee rights. 	(Arizona Electric 	Power Coop., 	supra; 	Carolina
Telephone 	and Telegraph Co., 	supra.)
10

The 	U n i v e r s i t y ' s 	e x c e p t i o n 	to 	the 	m a k e - w h o l e 	r e m e d y 	a w a r d e d
by 	the 	A L J 	is 	p r i m a r i l y 	based 	on 	its 	a r g u m e n t 	that 	it 	v i o l a t e d 	no
law 	by 	e n g a g i n g 	in 	a 	t e c h n i c a l 	refusal 	to 	b a r g a i n . 	H a v i n g
r e j e c t e d 	the 	"technical 	r e f u s a l 	to 	b a r g a i n " 	d e f e n s e , 	the 	A L J
p r o p e r l y 	o r d e r e d 	a 	m a k e - w h o l e 	r e m e d y 	b a s e d 	on 	his 	c o n c l u s i o n 	that
the 	U n i v e r s i t y ' s 	actions 	c o n s t i t u t e d 	an 	u n l a w f u l 	r e f u s a l 	to
b a r g a i n 	u n d e r 	H E E R A . 6
O R D E R
U p o n 	the 	foregoing 	d e c i s i o n 	and 	the 	entire 	record 	in 	this
c a s e , 	and 	p u r s u a n t 	to 	section 	3563.3 	of 	the 	H i g h e r 	E d u c a t i o n
E m p l o y e r - E m p l o y e e 	R e l a t i o n s 	A c t , 	the 	Board 	o r d e r s 	that 	the
R e g e n t s 	of 	the 	U n i v e r s i t y 	of 	C a l i f o r n i a 	and 	its 	r e p r e s e n t a t i v e s
s h a l l :
1. 	C E A S E 	A N D 	D E S I S T 	FROM:
(1) 	R e f u s i n g 	to 	n e g o t i a t e 	in 	good 	faith w i t h 	the
C a l i f o r n i a 	N u r s e s 	A s s o c i a t i o n , 	the 	e x c l u s i v e 	r e p r e s e n t a t i v e 	of 	a
u n i t 	of 	r e g i s t e r e d n u r s e s , 	by u n i l a t e r a l l y : 	(a) 	c o n v e r t i n g
b a r g a i n i n g 	u n i t 	c l a s s i f i c a t i o n s 	t o 	s u p e r v i s o r y 	c l a s s i f i c a t i o n s
and 	(b) 	t r a n s f e r r i n g 	b a r g a i n i n g 	u n i t 	w o r k 	out 	of 	the 	u n i t .
(2) 	Interfering w i t h 	the 	r i g h t s 	of 	e m p l o y e e s 	to 	be
r e p r e s e n t e d 	b y 	their 	e x c l u s i v e 	r e p r e s e n t a t i v e 	b y 	the 	c o n d u c t
d e s c r i b e d 	in p a r a g r a p h n u m b e r 	(1) 	a b o v e ; 	and
6 I n 	similar 	factual 	c i r c u m s t a n c e s , 	the 	N L R B 	has 	found 	a
m a k e - w h o l e 	r e m e d y 	a p p r o p r i a t e 	to 	r e d r e s s 	any 	losses 	suffered 	by
the 	e m p l o y e e s 	affected 	by 	the 	u n f a i r 	labor 	p r a c t i c e . 	(Carolina
T e l e p h o n e 	and 	T e l e g r a p h 	C o . , 	supra.)
11

(3) 	D e n y i n g 	the 	C a l i f o r n i a 	N u r s e s 	A s s o c i a t i o n 	the 	r i g h t
to 	r e p r e s e n t 	its 	m e m b e r s 	by 	the 	c o n d u c t 	d e s c r i b e d 	in 	p a r a g r a p h
n u m b e r 	(1) 	a b o v e .
2 . 	TAKE 	THE 	F O L L O W I N G A F F I R M A T I V E 	A C T I O N S 	D E S I G N E D 	T O
E F F E C T U A T E 	THE 	POLICIES 	O F 	THE 	A C T :
(1) 	M a k e 	e m p l o y e e s 	w h o l e 	for 	any 	losses 	suffered 	as 	a
r e s u l t 	of 	the 	conduct 	d e s c r i b e d 	in 	p a r a g r a p h 	n u m b e r 	one 	(1) 	a b o v e
for 	the 	p e r i o d 	b e g i n n i n g 	w i t h 	the 	e f f e c t i v e 	date 	of 	the 	u n l a w f u l
c o n d u c t 	t o 	S e p t e m b e r 	3 0 , 	1 9 8 7 .
(2) 	W i t h i n 	thirty 	five 	(35) 	days 	following 	the 	d a t e
this 	D e c i s i o n 	is 	no 	longer 	subject 	to 	r e c o n s i d e r a t i o n , 	sign 	and
p o s t 	c o p i e s 	of 	the 	a t t a c h e d 	N o t i c e 	m a r k e d 	"Appendix" 	in
c o n s p i c u o u s 	p l a c e s 	w h e r e 	n o t i c e s 	t o 	e m p l o y e e s 	are 	c u s t o m a r i l y
p o s t e d 	at 	the 	San 	F r a n c i s c o , 	D a v i s 	and 	U C L A c a m p u s e s . 	Such
p o s t i n g 	shall 	be 	m a i n t a i n e d 	for 	thirty 	(30) 	c o n s e c u t i v e 	w o r k d a y s .
C o p i e s 	of 	this 	N o t i c e 	m u s t 	be 	signed 	by 	an 	a u t h o r i z e d 	agent 	of
the 	U n i v e r s i t y , 	indicating 	the 	U n i v e r s i t y 	will 	c o m p l y 	w i t h 	the
t e r m s 	of 	this 	O r d e r . 	R e a s o n a b l e 	steps 	shall 	be 	t a k e n 	to 	insure
that 	the 	N o t i c e 	is 	not 	reduced 	in 	s i z e , 	a l t e r e d , 	d e f a c e d 	or
c o v e r e d 	b y 	any 	o t h e r 	m a t e r i a l s .
(3) 	W r i t t e n n o t i f i c a t i o n 	of 	the 	actions 	t a k e n 	to 	c o m p l y
w i t h 	this 	O r d e r 	shall 	be 	g i v e n 	to 	the 	San 	F r a n c i s c o 	R e g i o n a l
D i r e c t o r 	of 	the 	Public 	E m p l o y m e n t 	R e l a t i o n s 	Board 	in 	a c c o r d a n c e
w i t h 	his 	or 	her 	i n s t r u c t i o n s , 	and 	shall 	be 	served 	c o n c u r r e n t l y 	on
the 	c h a r g i n g 	p a r t y .
C h a i r p e r s o n 	H e s s e 	and 	M e m b e r 	Porter 	joined 	in 	this 	D e c i s i o n .
12

A P P E N D I X N O T I C E 	TO 	E M P L O Y E E S
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	E M P L O Y M E N T 	R E L A T I O N S 	BOARD
An 	A g e n c y 	of 	the 	State 	of 	C a l i f o r n i a
A f t e r 	a 	h e a r i n g 	in U n f a i r 	Practice 	Case 	N o . 	S F - C E - 2 4 7 - H , 	in
w h i c h 	all 	p a r t i e s 	had 	the 	right 	to 	p a r t i c i p a t e , 	it 	has 	b e e n 	found
that 	the 	Regents 	of 	the 	U n i v e r s i t y 	of 	California 	v i o l a t e d
G o v e r n m e n t Code 	section 3 5 7 1 ( a ) , ( b ) , ( c ) .
As 	a 	result 	of 	this 	conduct 	we 	have 	b e e n 	ordered 	to 	p o s t
this 	N o t i c e , 	and will 	abide 	by 	the 	following. 	We 	w i l l :
1. 	CEASE 	A N D 	D E S I S T 	FROM:
(1) 	Refusing 	to 	n e g o t i a t e 	in 	good 	faith w i t h 	the
C a l i f o r n i a 	N u r s e s 	A s s o c i a t i o n , 	the 	exclusive 	r e p r e s e n t a t i v e 	of 	a
u n i t 	of 	registered n u r s e s , 	by u n i l a t e r a l l y : 	(a) 	c o n v e r t i n g
b a r g a i n i n g 	unit 	classifications 	to 	supervisory 	c l a s s i f i c a t i o n s
and 	(b) 	transferring 	b a r g a i n i n g 	unit 	w o r k 	out 	of 	the 	u n i t .
(2) 	Interfering w i t h 	the 	rights 	of 	e m p l o y e e s 	to 	be
r e p r e s e n t e d 	by 	their 	exclusive 	r e p r e s e n t a t i v e 	by 	the 	conduct
d e s c r i b e d 	in p a r a g r a p h n u m b e r 	(1) 	a b o v e ; 	and
(3) 	Denying 	the 	C a l i f o r n i a 	Nurses 	A s s o c i a t i o n 	the
right 	to 	represent 	its 	m e m b e r s 	by 	the 	conduct 	described 	in
p a r a g r a p h n u m b e r 	(1) 	a b o v e .
2 . 	TAKE 	THE 	FOLLOWING A F F I R M A T I V E 	A C T I O N 	D E S I G N E D 	TO
E F F E C T U A T E 	THE 	POLICIES 	OF 	THE 	A C T :
(1) 	M a k e 	employees 	w h o l e 	for 	any 	losses 	suffered 	as 	a
result 	of 	the 	conduct 	d e s c r i b e d 	in 	p a r a g r a p h 	n u m b e r 	one 	(1) 	above
for 	the 	period 	b e g i n n i n g 	w i t h 	the 	effective 	date 	of 	the 	u n l a w f u l
conduct 	to 	September 	3 0 , 	1 9 8 7 .
D a t e d : 	Regents 	of 	the 	U n i v e r s i t y 	of 	C a l i f o r n i a
By
A u t h o r i z e d 	A g e n t
T H I S 	IS 	AN 	OFFICIAL 	N O T I C E . 	IT 	M U S T 	R E M A I N 	POSTED 	FOR AT 	L E A S T
T H I R T Y 	(30) 	W O R K D A Y S 	FROM 	THE 	DATE 	OF 	POSTING A N D 	M U S T 	N O T 	BE
R E D U C E D 	I N 	S I Z E , 	D E F A C E D , 	A L T E R E D 	O R 	COVERED 	B Y A N Y M A T E R I A L .

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA NURSES ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
)
) 	Unfair 	Practice
Case 	No. 	SF-CE-247-H
PROPOSED 	DECISION
(1/11/88)
)
))
)
)
)
Appearances ; 	Beeson, 	Tayer, 	Silbert 	& Bodine, 	by Kenneth C.
Absalom, 	Attorney, 	for the California Nurses Association; 	Susan
Thomas, 	Attorney, 	for The Regents 	of 	the University of
California.
Before; 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
This 	unfair 	practice 	charge 	was 	filed 	by 	the 	California
Nurses 	Association 	(hereafter 	CNA, 	Association or 	charging
party) 	against 	the 	Regents 	of 	the 	University of 	California
(hereafter University or 	respondent) 	on October 22, 	1986. 	The
charge, 	as 	amended, 	alleges 	that 	the University unilaterally
removed 	approximately 	140 	positions 	from 	a 	certified 	bargaining
unit, 	thus modifying the unit. 	This conduct, 	it 	is 	alleged,
violated 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act
(hereafter HEERA or Act) , 	section 3571(c).1
1The 	ERA is 	codified at Government Code 	section 3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references 	in
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.

The 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or
Board) 	General 	Counsel 	issued 	a 	complaint 	on November 	21,
1986. 	The University filed 	its 	answer on December 	17, 	1986,
denying 	that 	it 	violated 	the Act 	and 	offering 	several
affirmative 	defenses. 	Denials 	and defenses will 	be 	dealt with
below 	as 	necessary. 	The 	settlement 	conference 	on December 	22,
1986 	did not 	resolve 	the 	dispute.
After 	a prehearing conference on March 	6, 	1987, 	the
University 	filed 	a 	unit 	modification 	petition 	(SF-UM-399)
asserting 	that 	the 	positions 	in 	question 	are 	supervisory 	and
therefore 	not 	appropriate 	for 	inclusion 	in 	the 	unit. 	The 	cases
were consolidated for formal 	hearing, 	and, 	on April 	17, 	1987,
the 	parties 	were 	directed 	by 	the 	undersigned 	to 	submit
declarations 	in 	support 	of 	their 	respective 	arguments
concerning 	the 	supervisory 	status 	of 	the 	disputed 	positions.
It 	was 	intended 	that 	the 	evidence 	submitted 	in 	the 	form of
declarations 	be 	received 	in 	lieu 	of 	conducting 	a 	formal 	hearing
in 	the unit modification petition. 	See 	In The Matter of: 	Unit
Determination 	for 	Employees 	Of 	The 	Regents 	Of 	The 	University Of
California 	(Exclusionary Phase) 	(1982) 	PERB Order
No.-Ad. 	114c-H; 	In The Matter of: 	Unit Determination For
Professional 	Patient 	Care 	Employees 	Of 	The 	University Of
this decision are 	to 	the 	Government 	Code. 	Section 	3571(c)
provides 	that 	it 	shall 	be unlawful 	for 	a 	higher 	education
employer 	to:
Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive 	representative.
22

California 	(1983) 	PERB Decision No. 	248b-H. 	While 	this process
was underway, 	the parties met 	on September 	30, 	1987 	and 	reached
agreement 	on 	the 	unit 	modification petition. 	The 	agreement
called 	for withdrawal 	of 	the 	petition.
The 	briefing 	schedule 	in 	the 	unfair 	practice 	charge 	was
completed on December 	11, 	1987 	and 	the 	case was 	submitted.
FACTUAL 	FINDINGS
The 	parties 	have 	stipulated 	to 	the 	relevant 	facts. 	The
following 	is 	a 	summary of 	that 	stipulation.
The 	University 	is 	an 	employer 	within 	the 	meaning 	of 	section
3562(h). 	The Association 	is 	an employee organization within
the meaning of 	section 3562(g), 	and the 	exclusive
representative within the meaning of 	section 	3562(j) 	of 	a
bargaining 	unit 	consisting 	of 	nurses 	working 	at 	University
hospitals 	and 	student 	health 	centers.
There 	has 	been 	a 	collective 	bargaining 	agreement 	in 	effect
since 	1984. 	The 	current 	agreement 	covers 	the 	period 	from
January 12, 	1987 	to October 31, 	1988. 	All 	agreements 	include
the 	following 	recognition 	clause.
A. 	The 	University hereby 	recognizes 	the 	Association
as 	the 	sole 	and 	exclusive 	representative 	for 	the
purpose 	of 	collective 	bargaining 	for 	all 	nurses 	in 	the
classifications 	listed below, 	excluding 	those
classifications 	and/or 	nurses 	designated 	as
managerial, 	supervisory, 	or confidential 	as defined 	in
the 	Higher 	Education 	Employer-Employee 	Relations 	Act
and 	all 	UC 	student 	nurses 	whose 	employment 	is
contingent 	upon 	their 	status 	as 	students.
w	3

B. 	The term "nurse", 	"employee" 	or 	"employees" 	as
used 	in 	this 	Agreement 	shall 	refer 	to 	nurses 	mentioned
above 	who 	are 	within 	the 	bargaining 	unit 	covered 	by
this Agreement.
C. 	Any new 	registered 	nurse 	classification 	shall 	be
subject 	to 	meeting 	and 	conferring 	to 	determine
bargaining unit 	status. 	If 	the parties 	are unable 	to
agree 	upon 	inclusion or 	exclusion, 	either 	party may
pursue 	PERB procedures.
In 	December 	1984 	the 	University began 	discussing with
representatives 	of 	the Association 	its 	intention 	to 	designate
certain bargaining 	unit 	nurses 	as 	supervisors 	and 	to 	place 	them
in newly created 	supervisory classifications. 	In 	a 	January 	29,
1985 	letter 	John Ortega, 	Association Assistant 	Director,
Economic 	and 	General 	Welfare 	Program, 	informed 	Gayle
Cieszkiewicz, 	University Labor Relations 	Coordinator, 	that 	he
was 	prepared 	to meet 	prior 	to 	any unilateral 	designations 	by
the 	University 	to 	identify positions/individuals 	claimed 	to 	be
supervisory 	and 	to 	seek 	agreement 	on 	those 	to 	be 	excluded.
Ortega 	acknowledged 	that 	he 	had 	been 	told 	during 	discussions
with University 	representatives 	at 	meetings 	on December 	14,
1984 	and January 28, 	1985 	that 	"the University claims 	a 	right
to 	designate 	supervisors 	and managerial 	employees, 	but 	since
issuance 	of 	PERB Decision No. 	248-b-H dated March 31, 	1983 	the
University has 	not 	exercised 	that 	right." 	The 	decision
referred 	to 	by Ortega 	established 	the 	nurses 	unit 	which 	is 	the
subject 	of 	this 	case.
That 	same 	day 	(January 	28) 	Ortega was 	informed 	by Jeanne
Bargmann, 	University Labor Relations 	Representative, 	that 	the
4
4

University 	had 	created 	new 	supervisory 	classes 	for 	registered
nurses. 	Bargmann provided 	the Association with 	a 	copy of 	the
new 	supervisory classifications, 	title 	codes 	and 	salary 	ranges
at 	that 	time, 	and 	invited 	a 	response 	from the Association.
On 	February 	5, 	1985 	Ortega 	notified 	the University 	that 	the
Association wished 	to 	meet 	and 	confer 	concerning 	the
University's 	new 	supervisory 	classifications. 	On 	February 	7,
1985 	Bargmann 	responded 	that 	the 	only purpose 	of 	her 	earlier
letter was 	to 	notify 	the Association 	of 	the 	creation of 	the
supervisory 	classes.
On March 4, 	1985 Cieszkiewicz, 	on behalf 	of 	the University,
refused Ortega's 	request 	to meet 	and confer. 	In 	an 	attempt 	to
clarify what 	she 	believed 	to 	be 	a 	misunderstanding 	about 	the
University's 	position, 	Cieszkiewicz 	advised 	the Association
that 	the 	University 	acknowledged 	no 	obligation 	to 	meet 	and
confer 	on this 	subject. 	Cieszkiewicz wrote 	that 	she was 	eager
to 	reach 	a mutual 	understanding 	of 	the 	names 	of 	the 	individuals
who, 	although performing 	supervisory duties, 	were 	in titles
named 	in 	the 	recognition 	clause 	of 	the 	collective 	bargaining
agreement. 	She made 	it clear, 	however, 	that 	the University had
no 	intention 	to 	negotiate 	about 	its 	decision. 	Cieszkiewicz
wrote:
Thus, 	HEERA preserves 	the University's 	managerial
prerogative 	to 	fill 	vacant 	supervisory positions 	and
to 	create 	and 	fill 	new 	supervisory positions 	as
operations 	needs 	change. 	Indeed, 	we 	see no
requirement 	in HEERA 	to 	give 	notice 	to 	or meet 	and
confer with CNA prior 	to 	treating 	a 	supervisor 	as 	a
supervisor.
5
5

The parties, 	nevertheless, 	met on April 	8, 	1985 	in an
effort 	to 	"finalize 	as 	many of 	the 	outstanding 	University
supervisory exclusions 	as 	possible." 	At 	that 	meeting 	Ortega
agreed 	that 	the 	individuals 	excluded 	by 	the 	Board 	in 	PERB
Decision No. 	248b-H were 	still 	out 	of 	the unit 	and 	asked 	for
additional 	information 	as 	to 	the 	other 	positions. 	Cieszkiewicz
agreed 	to 	supply 	the 	Association with 	some 	additional
information prior 	to 	taking 	final 	action.
On August 	20, 	1985 	Cieszkiewicz 	notified Association
representative 	Jessie 	Bostelle 	that 	the 	University 	intended 	to
move 	those 	individuals 	named 	on 	lists 	supplied 	to 	the
Association 	into 	appropriate 	supervisory 	classifications 	"as
soon as possible, 	but not 	later 	that October 	1, 	1985."2 It
appears 	that 	the 	lists 	provided 	at 	this 	time 	included 	only
those 	positions 	which 	had 	been 	excluded 	earlier 	by 	PERB
Decision No. 	248b-H. 	Cieszkiewicz 	also 	informed Bostelle 	that
she was 	willing 	to meet 	to 	discuss 	other 	outstanding
supervisory 	issues 	covered 	earlier with Ortega. 	However, 	no
action was 	taken.
On February 	17, 	1986 	Cieszkiewicz 	notified Bostelle 	that
144 	bargaining unit 	employees who, 	in the University's view,
were 	performing 	supervisory work would 	be 	designated 	as
supervisors 	by March 	1, 	1986. 	Cieszkiewicz 	made 	the
significance 	of 	this 	action clear. 	She wrote:
2It 	appears 	that 	Bostelle 	had by 	this 	time 	replaced
Ortega 	as 	Assistant 	Director.
6

As 	we 	have 	discussed on more 	than one 	occasion, 	the
University has 	identified 	a 	number 	of 	individuals 	who
perform 	supervisory work 	but 	who 	are 	incorrectly
classified 	and/or 	designated 	as 	employees. 	These
individuals 	are 	located at 	the 	San Francisco, 	Los
Angeles, 	and Davis 	locations, 	only. 	It 	is believed
that 	their 	current 	classification 	and 	designation 	as
"employees 	covered by 	the Agreement" 	is 	inappropriate,
and 	that 	the 	movement 	of 	these 	individuals 	into
supervisory 	titles 	and 	classifications 	is 	imperative.
Because 	this 	action will 	move 	the 	individuals 	named 	in
the 	enclosed 	set 	of 	documents 	out 	of 	the unit, 	and
because 	the 	number 	of 	individuals 	which 	require
redesignation to 	supervisory status 	is notable, 	I 	am
providing you with 	notice 	of 	the 	actions 	before 	they
are 	implemented.
At 	that 	time, 	the 	University provided 	information 	concerning
its 	decision, 	including 	names 	and work 	locations 	of 	individuals
designated 	for 	the 	change, 	and 	responsibilities 	that 	the
University 	regarded as 	supervisory. 	In 	addition, 	the
University provided 	(by 	campus) 	the 	number 	of 	FTE-designated
rank-and-file 	nurses, 	the 	number 	of 	FTE positions 	designated 	as
supervisory, 	and 	the 	resulting 	supervisor/employee 	ratio.
Cieszkiewicz 	in 	her 	letter 	invited 	the Association 	to 	express
any concerns 	it 	had 	about 	the 	upcoming 	change 	in 	classification
of employees.
The Association 	requested 	additional 	time 	to 	respond 	to 	the
University's 	February 	17 	letter.3 The University delayed
implementation 	and 	refrained 	from 	reclassifying 	the 	144
individuals on March 1, 	1986.
3This 	request 	was 	made 	by Rose Ann DeMoro, 	who 	apparently
had 	replaced 	Bostelle.
7

00
On March 	10, 	1986 	the Association 	advised 	the University
that 	it 	took exception 	to 	the 	exclusions. 	DeMoro wrote 	that 	in
the 	past 	the 	positions 	had 	not 	been viewed 	as 	supervisory 	and
there 	had 	been no 	changes 	in 	responsibilities 	that 	would
warrant 	the 	new classifications. 	DeMoro 	asked Cieszkiewicz 	if
the 	University 	had 	additional 	information 	which 	would 	support
its 	position. 	On March 21, 	1986 	the University advised the
Association 	that 	it 	already 	had 	provided 	sufficient
information, 	and 	asked 	for more 	specific 	reasons 	for 	the
Association's 	disagreement. 	The March 	21 	letter 	also 	indicated
a willingness 	to meet 	in 	a 	final 	effort 	to 	resolve 	the matter.
Cieszkiewicz wrote: 	"As we discussed, 	we 	are prepared to meet
in 	a 	final 	effort 	to 	obtain 	the 	information necessary 	to
resolve 	this 	matter 	to 	our mutual 	satisfaction." 	Meetings 	were
set 	up 	between 	the 	parties 	at 	each 	affected 	location 	- 	San
Francisco, 	Los Angeles, 	and Davis.
On July 21, 	1986, 	following the meetings 	referenced above,
the 	University notified 	the Association 	that 	employees 	at 	the
San 	Francisco 	and Davis 	campuses 	were 	to 	be 	converted 	from
bargaining 	unit 	titles 	to 	supervisory 	titles, 	effective
August 	1, 	1986. 	The 	letter of 	July 21 	confirmed earlier
conversations 	between Cieszkiewicz 	and DeMoro, 	and 	advised
DeMoro 	that 	unit 	employees 	at 	UCLA would 	not 	be 	converted 	to
the 	supervisory 	titles 	at 	that 	time. 	The University also
promised 	to 	let 	the 	Association 	know when UCLA 	intended 	to
undertake 	the 	conversions.
8

On August 	8, 	1986 	the 	University 	again contacted 	the
Association 	to 	provide 	follow-up 	information 	concerning 	the
names 	of 	individuals 	at 	the 	San 	Francisco 	and Davis 	campuses
whose 	titles 	had 	been 	converted on August 	1. 	At 	the 	time 	the
University moved 	individuals 	into 	the 	new 	supervisory
positions, 	the Association had not 	consented 	to 	any 	such
reclassifications.
Since 	the 	individuals 	were 	moved 	into 	the 	new 	supervisory
positions, 	the University has 	not 	recognized 	the Association 	as
their 	exclusive 	representative. 	For 	example, 	these 	individuals
were 	compensated 	in 	accordance 	with 	the 	collective 	bargaining
agreement 	until 	they were 	moved 	into 	the 	new 	supervisory . ...
positions. 	The 	compensation 	for 	those 	individuals 	now differs
from that 	of 	bargaining unit 	employees 	in certain 	respects, 	as
do 	other 	terms 	and 	conditions 	of 	their 	employment 	which 	have
been unilaterally established. 	In addition, 	the University's
action 	resulted 	in 	at 	least 	some 	work 	being 	removed 	from 	the
unit. 	See footnote 	8, 	supra.
On October 	22, 	1986 	the Association 	filed 	this 	unfair
practice 	charge 	concerning 	the 	University's 	conversion 	of
employees 	to 	the 	supervisory classifications.
On November 	19, 	1986 	the University sent 	a 	letter 	to 	the
Association 	confirming 	earlier 	conversations 	wherein 	the
University had 	advised 	the Association 	of 	its 	intent 	to
reclassify 	certain 	clinical 	nurses 	at 	UCLA 	to 	supervisory
9

titles 	effective December 	1, 	1986.
On March 	9, 	1987 	the University 	filed 	a 	unit 	modification
petition. 	The 	unfair 	practice 	charge 	was 	amended 	to 	include
the 	reclassifications 	at 	UCLA.
ISSUES
At 	the 	outset 	it 	is 	important 	to note what 	this 	case 	is 	not
about. 	First, 	CNA does 	not 	contend 	that 	the University could
not 	have 	lawfully 	created 	new 	supervisory 	job 	titles 	outside
the 	bargaining 	unit 	and 	recruited 	interested 	candidates 	for
such newly created vacancies, 	provided 	the 	integrity of 	the
bargaining 	unit 	was 	not 	threatened. 	CNA claims 	no 	right 	to
represent 	supervisors. 	Second, 	in 	its 	present procedural .. '
posture, 	this 	case does 	not 	involve 	the question of whether 	the
employees 	in question were 	in 	fact 	statutory 	supervisors. 	In
case 	number 	SF-UM-399 	the 	parties 	entered 	into 	a 	settlement
agreement 	in 	September 	1987 	which 	fully 	resolved 	the
exclusionary 	issues; 	no 	administrative 	determination was 	made
as 	to whether 	the 	employees 	in question were 	supervisors. 	For
the purpose of 	the present proceeding, 	however, 	it 	is 	assumed
that 	at 	least 	some 	of 	the 	employees 	perform supervisory duties
under 	the Act.
The principal 	question presented, 	then, 	is 	a narrow one:
whether 	the 	University 	had 	an 	obligation 	to 	exhaust 	the 	Board's
unit 	modification procedures 	before 	excluding 	the 	employees 	in
question 	from the 	bargaining unit, 	even 	assuming 	at 	least 	some
1
. . . .
0

of 	the 	employees were 	supervisors 	under 	the Act."
4
Also,
statute 	of 	limitations 	and waiver 	issues 	are 	presented 	by 	the
University's 	affirmative 	defenses.
DISCUSSION 	AND 	CONCLUSIONS
A. 	The 	Reclassification
It 	is 	undisputed 	that 	the 	University unilaterally
reclassified 	employees 	formerly 	in 	the 	bargaining 	unit 	to
supervisory positions 	outside 	the 	unit. 	The 	University
contends 	it 	should be 	free 	to 	remove 	employees 	from the 	unit
when, 	in 	its 	view, 	they have begun to perform supervisory
duties. 	Its primary line of defense 	is 	that 	the Act, 	Board
regulations 	and applicable 	case 	law, 	taken together, 	authorize
an employer 	in 	such circumstances 	to 	engage 	in 	a 	so-called
"technical 	refusal 	to bargain." 	The Association, 	on the 	other
hand, 	adopts 	the 	position 	that 	an employer may not 	remove 	an
employee 	from 	a 	bargaining 	unit 	without 	either 	an 	agreement
with 	the 	exclusive 	representative 	or 	an 	order 	pursuant 	to 	the
Board's 	unit modification procedures. 	The 	first 	question 	to 	be
4The 	University 	argues 	that 	this 	case 	presents 	a 	separate
but 	related 	issue 	concerning 	its 	obligation 	to 	negotiate 	about
the 	actions 	it 	took herein. 	I 	do not view the 	case 	as
presenting such an issue. 	The narrow issue, 	as 	I 	see 	it, 	is
framed 	above. 	Even 	if 	the 	refusal 	to 	negotiate 	the 	issue was
reached, 	however, 	it would not 	change 	the outcome of 	the
decision. 	There 	is no dispute that, 	as a general 	rule, 	the
parties 	are 	free 	to 	negotiate 	about 	exclusionary 	issues. 	As
more 	fully explained 	later, 	even 	if 	the University 	satisfied
(or did not 	satisfy) 	any 	requirement 	it 	had to negotiate,
absent 	an 	agreement with CNA, 	the University was 	not 	free 	at
the 	end 	of 	the 	process 	to unilaterally convert 	the 	positions.
11

• 	• • •
addressed, 	therefore, 	is what procedural vehicles 	are 	available
to 	an employer when 	it 	believes 	that 	employees, 	previously
placed 	in 	a 	bargaining unit 	by a 	Board decision, 	are 	no 	longer
appropriately 	in 	the 	unit 	because 	the 	employer 	has 	formed 	the
opinion 	they 	perform 	supervisory 	duties.
HEERA section 	3563, 	which defines 	the 	powers 	and duties 	of
the 	Board, 	states 	that 	the 	Board 	shall 	have 	the 	following
powers 	and duties:
(a) 	To determine 	in disputed cases, 	or
otherwise 	approve 	appropriate 	units.
* • • •
(e) 	To 	establish by 	regulation 	appropriate
procedures 	for 	review of 	proposals 	to
change unit 	determinations.
(k) 	To 	decide 	contested matters 	involving
recognition, 	certification, 	or
decertification 	of 	employee
organizations.
The Board, 	under section 3563(f) , 	has adopted regulations
to 	carry out 	these 	provisions 	and 	effectuate 	the 	purposes 	and
policies of 	the Act. 	PERB Regulation 32781 	(Cal. 	Admin. 	Code
title 8, 	Part 	III, 	sec. 	32781) 	sets out the procedures to be
followed by parties 	that 	wish 	to 	obtain 	Board 	approval 	of 	a
bargaining 	unit 	modification 	in various 	circumstances. 	At
least 	two parts 	of 	this 	section 	are 	relevant 	to 	the 	present
dispute.5 They are 	as 	follows:
5The 	University's unit modification petition 	(SF-UM-399),
filed 	after 	this 	unfair 	practice 	charge, 	relied 	in part 	on 	the
two 	provisions 	noted.
12

Parties 	who wish 	to 	obtain Board 	approval 	of 	a
unit 	modification may 	file 	a 	petition 	in 	accordance
with a 	provisions 	of 	this 	section.
A 	recognized 	or 	certified 	employee 	organization,
an employer, 	or both 	jointly may 	file with 	the
regional 	office 	a 	petition 	for 	change 	in unit
determination:
(1) 	To delete 	classifications 	or positions 	no
longer 	in 	existence 	or which by virtue 	of 	changes
in 	circumstances 	are 	no 	longer 	appropriate 	to 	the
established 	unit;
(4) 	To 	clarify the unit where 	the 	creation of 	a 	new
classification or position has 	created 	a 	dispute 	as 	to
whether 	the 	new classification or 	position 	as 	or 	is
not 	included 	in 	the 	existing 	unit.
The University 	argues 	that 	the 	Board's 	regulations, 	drafted
in permissive 	terms, 	provide only one 	alternative 	to 	a
so-called 	technical 	refusal 	to bargain, 	the 	traditional 	method
of 	testing 	exclusionary 	issues 	found 	in 	section 	3564(a) 	of 	the
Act.6 The 	University points 	out 	that 	a 	comparison of 	the
prior unit 	modification 	regulations, 	which by 	its 	terms 	had
represented the 	exclusive 	forum for modifying - a unit, 	with the
current 	permissive 	regulatory 	scheme 	supports 	this 	argument.
For 	a variety of 	policy considerations, 	the University contends
it 	should be 	free 	to pursue 	a 	technical 	refusal 	to bargain
approach 	to 	exclusionary 	issues 	without 	being 	subject 	to 	an
6 Section 3564 (a) 	provides 	in 	relevant part 	that
No 	employer 	or 	employee 	organization 	shall
13

unfair practice 	charge. 	It makes 	no 	sense, 	the University
reasons, 	to 	require 	an employer 	to 	recognize 	an exclusive
representative 	of 	supervisory 	employees 	(assuming 	the 	employees
in question are 	supervisors) 	while 	awaiting 	the, outcome of 	a
unit 	modification 	petition.
have 	the 	right 	to 	judicial 	review of 	a unit
determination except. 	. 	. 	. 	(2) 	when the issue is
raised 	as 	a 	defense 	to 	an unfair practice 	complaint.
See 	also 	Dixie 	Elementary School 	District 	(1983) 	PERB Decision
No. 	2 9 8; 	El Monte Union High School District 	(1982) 	PERB
Decision No. 	220.
As 	the Association points 	out 	in 	its 	brief, 	there 	are
reasons 	which 	argue 	against 	affording 	an 	employer 	the 	option of
a 	technical 	refusal 	to 	bargain under 	circumstances 	such 	as
those presented here. 	In 	fact, 	the 	Board 	addressed 	this 	issue
under 	similar 	circumstances 	in Mount 	San Antonio 	Community
College District 	(1983) 	PERB Decision No. 	334, 	where a school
District 	unilaterally: created 	non-bargaining 	unit 	positions 	and
transferred 	work 	previously 	performed 	by 	unit 	employees 	to . .
employees 	who 	filled 	the 	new position. 	Relying 	on Alum Rock
Union Elementary School 	District 	(1983) 	PERB Decision No. 	322,
the 	Board 	concluded 	that
"'where management 	seeks 	to 	create 	a 	new
classification 	to 	perform 	a 	function 	not 	previously
performed 	. 	. 	. 	by employees 	. . . 	it 	need not
negotiate the decision.' 	However, 	. 	. 	. 	"those
aspects of the creation 	. 	. 	. 	of a classification
which 	merely 	transfer 	existing 	functions 	and 	duties
from one 	classification 	to 	another 	involve 	no
overriding managerial 	prerogative,' 	and 	are,
14

therefore, 	negotiable. 	Thus, 	where the assignment of
duties 	to 	employees 	would 	transfer 	work 	previously
performed 	by bargaining 	unit 	members 	out 	of 	the
bargaining unit, 	the 	employer 	is 	obligated 	to
negotiate." 	Mt. 	San Antonio 	Community College
District, 	supra, 	p. 	8-9; 	see also Kendall College-
(1977) 	228 NLRB 1083, 	[95 LRRM 1094] .
The 	dissent 	in Mount 	San Antonio 	adopted 	the 	argument 	put
forth by the University in this proceeding; 	that 	is, 	an
employer 	has 	no 	obligation 	to 	negotiate 	about 	removing work,
which 	in 	its view 	is 	supervisory. 	In 	response, 	the majority
stated:
We 	find 	no 	statutory 	or 	case 	authority whatsoever
to 	support 	this 	theory. 	The performance of
"supervisory duties" 	is 	only relevant 	to 	a
determination 	of 	whether 	an 	employee 	should 	properly
be 	excluded 	from the 	bargaining 	unit 	as 	a 	"supervisory
employee" 	within the meaning of 	subsection 3540.l(m).
In 	the 	absence 	of 	a 	determination by the 	Board 	that 	a
particular 	employee 	is 	supervisory, 	that 	employee 	and
-that 	employee's 	duties 	belong 	to 	the 	bargaining 	unit.
This 	is 	true 	regardless 	of whether 	some 	part 	of 	those
duties 	may 	involve 	supervisory 	functions.
Under 	the 	theory 	set 	forth 	in the 	dissent,
management 	could 	effectively 	circumvent 	the 	statutory
unit 	modification procedure, 	while 	shifting 	the 	burden
to 	the 	union 	to 	prove 	that 	management 	had 	acted
improperly. 	Thus, 	if management were 	to unilaterally
remove 	so-called 	"supervisory duties" 	from 	the
bargaining 	unit, 	the union's 	only 	recourse would be 	to
file 	an unfair practice 	charge, 	alleging 	that
management 	unlawfully 	transferred 	bargaining 	unit 	work
out 	of 	the 	unit. 	The 	burden of 	proof would 	fall 	on
the Union 	to 	establish 	that 	the 	particular 	duties
transferred were 	"non-supervisory. " 	In contrast,
under 	the 	unit 	modification procedure, 	when management
seeks 	to 	exclude 	an 	employee 	from 	the 	bargaining 	unit
as 	supervisory, 	the burden of 	proof 	rests 	on the
employer 	to 	establish 	that 	an 	employee 	possessed
sufficient 	indicia 	of 	supervisory 	status.
15
•

Finally, 	we note that, 	in this case, 	management
and 	the 	Association mutually 	agreed 	that 	these
employees 	and 	their 	duties 	should be 	in 	the 	bargaining
unit. 	. 	. 	. 	Under the theory offered by the dissent,
management may piecemeal, 	and without bargaining, 	undo
what 	it 	has 	agreed 	to 	respect. 	We 	can hardly conceive
of 	a 	system 	less 	conducive 	to 	cooperative 	labor
relations. 	Mt. 	San Antonio 	Community 	College
District, 	supra. 	Fn. 	7, 	pp. 	9-10. 	(Emphasis in
original.)
These 	principles 	control 	the 	outcome 	of 	this 	dispute. 	The
Mt. 	San Antonio 	rationale 	is 	as 	applicable 	to Board-certified
bargaining units 	as 	it 	is 	to units 	established by consent 	of
the parties.
The 	University has 	argued 	that 	it 	makes 	no 	sense 	to 	require
an 	employer 	to 	recognize 	an 	exclusive 	representative 	for 	the
purpose 	of 	bargaining 	about 	supervisory 	employees 	(assuming 	the
employees 	in question 	are 	supervisory) 	while 	awaiting 	the
outcome 	of 	a 	unit 	modification procedure. 	The 	University's
argument 	simply 	sets 	forth one 	possible 	alternative 	to 	the
present 	procedure 	contemplated 	by Mount 	San Antonio 	Community
College District. 	It 	is, 	however, 	noted that 	the present unit
modification exhaustion 	requirement, 	like 	the 	technical 	refusal
to bargain, 	has worked 	satisfactorily 	in the past. 	See 	e.g.,
Antioch Unified School 	District 	(1984) 	PERB Decision No. 	415;
Atascadero Unified 	School 	District 	(1981) 	PERB 	Decision No.
191. 	And, 	as evidenced by the 	settlement 	in SF-UM-399, 	it 	is
clear 	that 	the 	unit 	modification procedure, 	which may be
invoked 	during 	the 	life 	of 	a 	collective 	bargaining 	agreement,
can 	still 	work 	as 	rapidly 	and 	as 	efficiently 	as 	the 	unfair
16

practice 	procedure.
It 	is 	true, 	as 	the University points out, 	that prior
regulations 	required 	all 	unit 	modifications 	be 	accomplished
through 	the 	regulatory process 	set 	up 	precisely 	for 	that
purpose. 	While 	the 	current 	regulation does 	not 	require 	that
all 	unit modifications 	be made 	thereunder, 	it does 	not 	go 	so
far 	as 	to permit 	a 	technical 	refusal 	to bargain 	about 	unit
questions 	expressly 	contemplated 	by 	the 	regulation. 	If 	the
Board 	had 	contemplated 	processing 	unit 	modification 	issues 	as
technical 	refusals 	to bargain 	(i.e., 	in the unfair practice
arena) 	it 	could have done 	so. 	The 	current 	regulation 	simply
permits 	parties 	to 	agree 	on unit modifications, 	but 	in the . A
absence 	of 	an 	agreement 	the 	regulation 	remains 	the 	appropriate
vehicle 	for 	effecting 	such 	changes.77 This 	is 	especially 	true
in a 	case 	such as 	this, 	where 	the University's 	actions were
taken 	allegedly 	as 	a 	result 	of 	changed 	circumstances 	and 	the
creation of 	new classifications, 	situations 	expressly
contemplated by 	the 	regulation. 	If 	the 	clear 	language 	of 	the
regulation 	and Mount 	San Antonio 	are 	to 	have 	any meaning, 	the
University's 	position must 	be 	rejected.
Therefore, 	it 	is concluded that, 	absent an agreement, 	an
7See 	Healdsburg Union 	School 	District 	(1984) 	PERB
Decision No. 	375, 	p. 	49-50, 	where 	the Board found nonnegotiable
a 	proposal 	which would 	have 	included 	in 	the 	contract 	a
procedure 	for unit 	modification. 	Under 	this 	decision 	it
appears 	that 	PERB 	approval 	of 	a 	unit 	modification may be
necessary even when the parties 	agree, 	if 	the 	agreement 	is 	to
withstand 	scrutiny 	in 	a 	later 	Board 	proceeding.
17

employer 	may not 	convert 	bargaining 	unit 	positions 	to
supervisory 	positions 	without 	first 	going 	through 	the
appropriate 	unit 	modification procedure; 	nor may 	an 	employer
remove 	work 	from 	a 	bargaining 	unit 	without 	negotiating 	with 	the
exclusive 	representative.
. .
In 	this 	case 	the 	University unilaterally 	reclassified
bargaining 	unit 	employees 	to 	newly 	created 	non-bargaining 	unit
positions, 	and 	in 	the 	process 	simultaneously 	removed 	employees
as well 	as work 	from the 	unit.8 In doing 	so, 	the University
acted 	contrary 	to 	the 	unit 	modification 	regulations 	and
principles 	set 	forth 	in Mount 	San Antonio. 	In 	the 	absence 	of
an 	agreement with 	the Association, 	the University was 	not 	free
to 	convert 	bargaining 	unit 	positions 	to 	supervisory positions
except 	through the unit modification process.9
B. 	The University's Affirmative Defenses;
1. 	The 	Statute 	of 	Limitations
The 	University 	first 	argues 	that 	this 	unfair 	practice
Official 	notice 	is 	taken of 	the 	record 	in SF-UM-399.
Antelope Valley Community College 	District 	(1979) 	PERB 	Decision
No. 	97. 	Although the University claims 	this 	is not 	a case
involving 	transfer 	of work out 	of 	the unit, 	declarations 	filed
by 	the 	University 	in 	SF-UM-399 	indicate 	that 	at 	least 	some
bargaining 	unit 	work was 	transferred 	out 	of 	the 	unit. 	See
e.g., 	Declarations of Priscilla Slaven, 	Sylvia 	(Kelly) 	White,
Ann Caudell, 	Malou Blanco Yarosh, 	Robin Rosemark, 	Lorraine
Sharpe, 	and Tracy Weintraub.
9Based on 	this 	conclusion, 	there 	is 	no need 	to 	address
the 	University's 	argument 	that 	because 	Board 	regulations 	permit
mid-term unit 	modification 	petitions 	a 	mid-term 	technical
refusal 	to 	bargain 	should 	likewise 	be 	permitted.
18

charge 	is 	time-barred.10	10 It 	points 	out 	that 	CNA could have
filed 	an unfair 	practice 	charge 	which would 	have 	survived
scrutiny under 	the 	statute 	of 	limitations 	on 	at 	least 	four
occasions 	between December 	1984 	and October 	1986, 	but 	failed on
each occasion 	to 	do 	so.11	11
The 	University's 	statute 	of 	limitations 	defense 	appears 	to
be 	aimed 	primarily 	at 	the 	issue 	concerning 	its 	obligation 	to
negotiate. 	However, 	that 	issue 	is 	not 	considered 	in this
decision. 	(See 	fn. 	4, 	supra.) 	The central 	issue presented
here 	is 	different. 	It 	concerns 	the University's 	failure 	to use
the 	unit 	modification procedures 	before 	removing 	positions
(and work) 	from the u n i t . 	For 	the 	following 	reasons, 	that 	- 4
issue 	is 	not 	time-barred.
Although 	the 	University made 	clear 	at 	the 	outset 	that 	it
refused 	to negotiate, 	the use 	of 	the unit modification
procedure 	had 	not 	been 	a 	serious 	topic 	of 	discussion prior 	to
the 	time 	the University 	actually 	implemented 	the 	change. 	In
10Section 	3563.2 	provides 	that 	"the 	board 	shall 	not 	issue
a 	complaint 	in 	respect 	of 	any 	charge 	based upon 	an 	alleged
unfair 	practice 	occurring more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge."
11The 	four occasions 	are: 	(1) 	on January 29, 	1985 when
Bargmann 	informed 	Ortega 	that 	the 	University 	had 	created 	new
supervisory classes 	for 	registered nurses; 	(2) 	on March 4,
1985, 	when Cieszkiewicz 	informed CNA that 	the University
recognized 	no 	obligation 	to 	meet 	and 	confer 	about 	its 	action;
(3) 	on February 	17, 	1986 	when Cieszkiewicz 	informed CNA that
the 	University 	intended 	to 	reclassify 	bargaining 	unit 	employees
by March 	1; 	and 	(4) 	on March 21, 	1986 when the University
offered CNA 	a 	final 	round of 	meetings 	but 	at 	the 	same 	time
indicated 	its 	intention 	to 	proceed with 	its 	decision.
19

fact, 	since 	there 	is 	not 	a 	single 	reference 	in 	the 	record 	to
the use 	of 	the unit modification procedure, 	it 	cannot 	be
concluded 	that 	CNA had 	"actual 	or 	constructive" 	notice 	of 	the
University's 	resistance 	to 	this 	procedure 	prior 	to 	the
implementation 	date. 	Victor Valley 	Community 	College 	District
(1986) 	PERB Decision No. 	570. 	Therefore, 	the violation
concerning 	use 	of 	the 	unit 	modification 	procedure 	occurred when
the 	talks 	failed 	and 	the 	University 	implemented 	the 	change.
The 	statute 	of 	limitations 	began to 	run 	at 	that 	time. 	El
-
Dorado Union High 	School 	District 	(1984) 	PERB Decision No.
382. 	Under 	these circumstances, 	it cannot be 	said that 	the
charge 	concerning 	the 	unit 	modification 	procedure 	is
"inescapably grounded" 	in 	events 	beyond 	the 	six-month 	period.
Local Lodge. No. 1424. IAM v. N.L.R.B.. supra. 3 62 U.S. 411,
421.
2. 	Waiver
The 	University 	advances 	a 	two-pronged waiver 	argument.
First, 	the University contends 	that 	the 	broadly worded
management 	rights 	clause 	in 	the 	collective 	bargaining 	agreement
gives 	it 	the 	sole 	authority 	"to 	determine 	and modify 	job
classifications 	and 	job descriptions." 	Second, 	the University
asserts 	that 	it 	is 	free 	to 	create positions 	outside 	the
bargaining unit; 	when 	it 	informed CNA that 	it 	intended 	to
reclassify unit 	employees 	to 	these 	positions 	CNA did 	nothing,
thus 	waiving 	any 	rights 	it 	had by 	inaction.
As 	a 	general 	rule, 	contract 	terms will 	not 	justify a
20

unilateral 	management 	act 	on 	a 	negotiable 	subject 	unless 	the
contract 	expressly 	or 	by 	necessary 	implication 	confers 	such 	a
right. 	Los Angeles 	Community College District 	(1982) 	PERB
Decision No. 	252, 	p. 	10. 	The contract clause giving the
University 	the 	prerogative 	to 	"determine 	and modify 	job
classifications" 	does 	not 	expressly 	or 	by 	necessary 	implication
address 	the 	more 	specific 	areas 	of 	removal 	of 	positions 	or work
from bargaining. 	Contract 	language which 	covers 	a 	subject
(e.g. 	layoffs) 	in general 	terms will not, 	without more, 	support
a waiver of 	a more 	specific 	aspect 	(e.g. 	effects 	of 	layoffs) 	of
the 	broader 	subject. 	Placentia 	Unified 	School 	District 	(1986)
PERB Decision No. 	595.
Moreover, 	another clause 	in the 	contract 	appears 	to be 	in
conflict 	with 	the 	management 	rights 	provision. 	Paragraph 	three
of 	the 	recognition 	article 	states 	that 	a 	new classification
"shall" 	be 	subject 	to meeting 	and conferring. 	It 	also provides
that, 	in 	the 	absence 	of 	an 	agreement 	regarding 	the 	inclusion or
exclusion of 	new classifications, 	either 	party may pursue 	PERB
procedures. 12 Faced with this 	language, 	it 	cannot be
concluded 	that 	the 	"clear 	and unmistakable" 	waiver 	standard 	has
been met 	by 	the 	University. 	Placentia 	Unified 	School 	District,
supra.
12No 	evidence 	of 	bargaining 	history was 	presented
regarding 	these contract provisions. 	Thus, 	there 	is no
evidence 	that 	the 	subject 	was 	"fully discussed" 	or 	"consciously
explored" 	and 	CNA 	"consciously yielded" 	its 	interest 	in 	the
matter. 	Los Angeles 	Community College District, 	supra.
21
/' ...

Nor 	can 	it 	be 	concluded 	that 	CNA waived 	any 	rights 	by
inaction. 	There 	is 	no dispute 	that 	a union may waive
negotiating 	rights 	by 	inaction. 	Los 	Angeles 	Community College
----·	District, 	supra	- 	-··; 	Modesto City and High School 	Districts 	(1986)
PERB Decision No. 	566. 	CNA did not 	do 	so 	in this 	case. 	From
December 	1984 	to 	the 	time 	the 	University 	implemented 	the
changes, 	the parties 	engaged 	in an on-going dialogue. 	Meetings
were 	held, 	information 	exchanged 	and 	the 	changes 	postponed 	by
the 	University. 	This 	activity was 	consistent 	with 	that 	called
for 	in the collective bargaining agreement; 	that 	is, 	the
contract 	directed 	the 	parties 	to 	attempt 	to 	agree 	on unit
status 	for 	new classifications. 	In 	the 	event 	agreement 	could
not 	be 	reached, 	either party was 	free 	to 	"pursue 	PERB
procedures." 	Agreement 	was 	not 	reached 	and 	the 	University
implemented 	the 	changes. 	Within 	six months 	CNA 	filed 	the
instant 	unfair practice 	in protest. 	Under 	these 	circumstances,
there was 	no waiver by 	inaction. 	Even 	if 	CNA slept 	on 	its
rights 	(or 	simply decided 	to not 	negotiate) 	Mount 	San Antonio
compels 	the 	conclusion 	that 	the 	unit 	modification procedure
must 	be 	used when 	a 	party claims 	a 	bargaining 	unit 	position 	is
no 	longer 	appropriately placed 	in 	the 	unit. 13	13
13In Mount 	San Antonio, 	supra, 	footnote 	7, 	the Board
voiced 	concern 	about 	which 	party 	should 	have 	the 	burden 	of
proof 	in 	exclusionary 	issues 	such 	as 	those 	presented 	here. 	As
the University points 	out 	in 	its 	brief, 	this 	concern may be
unnecessary. 	The burden of 	proof 	is 	the 	same, 	whether
exclusionary 	issues 	are 	raised by 	the 	employer 	in 	a 	unit
22

CONCLUSION
It 	has 	been 	concluded 	that 	the 	University unlawfully
modified 	the 	existing 	unit 	by 	unilaterally 	converting
bargaining 	unit 	positions 	to 	supervisory 	positions 	outside 	the
unit 	without 	first 	going 	through 	the 	Board's 	unit 	modification
procedures. 	By 	the 	same 	conduct, 	the University 	simultaneously
transferred 	some 	bargaining unit work out 	of 	the unit. 	It 	is
therefore 	concluded 	that 	the 	University violated 	section
3571 (c) 	and, 	derivatively, 	sections 3571 (a) 	and 	(b) . 	All other
aspects 	of 	unfair 	practice 	charge 	SF-CE-247-H 	are 	dismissed.
REMEDY
Under 	section 	3563(h) 	the 	Board 	is 	given 	the 	remedial
authority
[T]o 	investigate 	unfair 	practice 	charges 	or 	alleged
violations 	of 	this 	chapter, 	and 	to 	take 	such action
and make 	such determinations 	in 	respect 	of 	such
charges 	or 	alleged violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this 	chapter.
In 	this 	case 	it 	has 	been 	found 	that 	the 	University unlawfully
modified 	the 	existing 	bargaining 	unit 	by 	unilaterally
converting 	existing 	unit 	positions 	to 	supervisory 	positions
modification petition, 	or by the 	employer 	as 	part 	of 	an
affirmative 	defense 	in 	the 	context 	of 	a 	technical 	refusal 	to
bargain unfair practice charge. 	For 	this 	reason, 	the
resolution 	of 	the 	central 	issue 	presented 	here 	would 	seem 	to
have 	little, 	if 	any, 	practical value. 	The 	issue 	is not,
however, 	moot. 	See Napa County Office of 	Education 	(1983) 	PERB
Decision No. 	282, 	(and cases cited therein), 	where an exclusive
representative 	abandoned 	its 	unfair 	practice 	charge 	in 	favor 	of
pursuing 	a 	unit 	modification 	petition.
23

outside 	the 	unit 	without 	first 	going 	through 	the 	Board's 	unit
modification procedures. 	By the 	same 	conduct, 	the University
simultaneously 	transferred 	at 	least 	a 	small 	amount 	of
bargaining 	unit work out 	of 	the 	unit. 	The 	ordinary 	remedy 	in 	a
case 	such as 	this 	to order the 	respondent 	to: 	(1) 	cease 	and
desist 	from such unlawful 	conduct; 	(2) 	restore 	the 	status 	quo
ante 	which 	existed 	prior 	to 	the 	time 	of 	the 	unlawful 	conduct;
and 	(3) 	make 	employees whole 	for 	any 	losses 	suffered 	as 	a
result 	of 	the 	unlawful 	conduct. 	See Mount 	San Antonio
Community College District, 	supra.
In 	this 	case 	the University will 	be 	ordered 	to 	cease 	and
desist 	from 	the 	unlawful 	conduct 	described 	herein. 	In view of
the parties written settlement 	in Case No. 	SF-UM-399, 	there 	is
no 	need 	to 	order 	the 	parties 	to 	return 	to 	the 	status 	quo 	ante.
Such a 	remedial 	order, 	under 	these 	circumstances, 	would be
disruptive 	to 	the 	relationship 	of 	the 	parties 	and 	thus 	not
effectuate 	the 	purposes 	of 	the Act. 	Lastly the University will
be 	ordered 	to make 	employees whole 	for 	the 	losses 	suffered 	as 	a
result 	of 	the 	unlawful 	conduct 	described herein. 	Employees
shall 	be 	made whole 	for 	such 	losses 	for 	the 	period beginning
with 	the 	date 	of 	the 	unlawful 	conduct 	(when 	the 	changes 	were
actually implemented) 	to September 30, 	1987, 	the date the
parties 	agreed to 	the 	settlement 	in Case No. 	SF-UM-399. 	Delano
Union Elementary School 	District 	(1982) 	PERB Decision No. 	213a;
Rio 	Hondo 	Community College 	District 	(1983) 	PERB 	Decision
No. 	279a; 	Pittsburg Unified School District 	(1984) 	PERB
24

Decision No. 	318a. 	Disputes which arise 	in the 	effectuation of
this 	remedy 	shall 	be 	resolved under 	a 	Board-supervised
compliance 	proceeding.
It 	also 	is 	appropriate 	that 	the University be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	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. 	Posting 	such 	a 	notice
will 	provide 	employees 	with notice 	that 	the 	Employer 	has 	acted
in 	an unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from this 	activity. 	It 	effectuates 	the 	purposes 	of 	the HEERA
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and will 	announce 	the 	e m p l o y e r ' s 	readiness 	to 	comply with 	the
ordered 	remedy. 	See 	Placerville 	Union 	School 	District 	(1978)
PERB Decision No. 	69; 	Pandol 	and Sons v. 	Agricultural 	Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	5 8 7; 	NLRB v. 	Express
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 4 1 5 ] .
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and pursuant 	to 	section
3563(h) 	it 	is 	hereby ordered that 	the Regents 	of 	the University
of 	California 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST 	FROM:
(1) 	Refusing 	to 	negotiate 	in good 	faith with 	the
California 	Nurses Association, 	the 	exclusive 	representative 	of
a unit of 	registered nurses, 	by unilaterally: 	(a) 	converting
25

bargaining 	unit 	classifications 	to 	supervisory 	classifications
and 	(b) 	transferring 	bargaining 	unit 	work 	out 	of 	the 	u n i t ,
without 	first 	obtaining 	mutual 	agreement 	or 	an 	appropriate
order 	under 	unit 	modification 	procedures 	established 	by 	the
Public 	Employment 	Relations 	Board.
(2) 	Interfering with 	the 	rights 	of 	employees 	to 	be
represented 	by 	their 	exclusive 	representative 	by 	the 	conduct
described 	in paragraph number 	(1) 	above; 	and
(3) 	Denying 	the 	California 	Nurses 	A s s o c i a t i o n 	the
right 	to 	represent 	its 	members 	by 	the 	conduct 	described 	in
paragraph number 	(1) 	above.
2. 	TAKE 	T H E 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	A C T :
(1) 	Make 	employees 	whole 	for 	any 	losses 	suffered 	as 	a
result 	of 	the 	conduct 	described 	in 	paragraph 	number 	one 	(1)
above 	for 	the 	period 	beginning 	with 	the 	effective 	date 	of 	the
unlawful 	conduct 	to 	September 	3 0 , 	1987.
(2) 	Within 	seven 	(7) 	workdays 	of 	service 	of 	a 	final
decision 	in 	this 	matter 	sign 	and 	post 	copies 	of 	the 	attached
Notice 	marked 	"Appendix" 	in 	conspicuous 	places 	where 	notices 	to
employees 	are 	customarily 	posted 	at 	the 	San 	Francisco, 	Davis
and 	UCLA 	campuses. 	Such 	posting 	shall 	be 	maintained 	for 	thirty
(30) 	consecutive w o r k d a y s . 	Copies 	of 	this 	Notice must 	be
signed 	by 	an 	authorized 	agent 	of 	the 	University, 	indicating 	the
University will 	comply with 	the 	terms 	of 	this 	Order.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the 	Notice 	is
. . .
26

not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered 	by 	any 	other
m a t e r i a l s .
(3) 	Upon 	issuance 	of 	a 	final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply w i t h 	this 	Order 	to
the 	San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board.
(4) 	W i t h i n 	thirty 	(30) 	workdays 	from a 	final 	decision
in 	this 	m a t t e r , 	notify 	the 	San 	Francisco 	Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board, 	in writing, 	of 	the 	steps
the 	employer 	has 	taken 	to 	comply with 	the 	terms 	of 	this 	Order.
Continue 	to 	report 	in writing 	to 	the 	Regional 	Director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
Regional 	Director 	shall 	be 	served 	concurrently 	on 	the 	charging
party.
Pursuant 	to 	California Administrative 	C o d e , 	title 	8,
part 	I I I , 	section 	3 2 3 0 5 , 	this 	Proposed Decision 	and Order 	shall
become 	final 	unless 	a 	party 	files 	a 	timely 	statement 	of
exceptions 	w i t h 	the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 	20 	days 	of 	service 	of 	this 	D e c i s i o n . 	In
accordance 	with 	PERB 	Regulations, 	the 	statement 	of 	exceptions
should 	identify 	by 	page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied upon 	for 	such exceptions. 	See
California Administrative 	Code 	title 	8, 	part 	I I I ,
section 	3 2 3 0 0 . 	A document 	is 	considered 	"filed" 	w h e n 	actually
received 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the 	last
27

day set 	for 	filing, 	". 	. 	. o r when sent by telegraph or
certified 	or 	Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany 	each 	copy 	served 	on 	a 	party or 	filed
with 	the 	Board 	itself. 	See 	California Administrative 	Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	January 	11, 	1988
Fred 	D'Orazio
Administrative 	Law Judge
2
_
8