Regents of the University of California (American Federation of State, County and Municipal Employees) * * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 0763H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE,
COUNTY AND MUNICIPAL 	EMPLOYEES,
COUNCIL 	10, 	LOCALS 3235 AND 3238,
Charging Parties,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	LA-CE-243-H
PERB Decision No. 	763-H
September 14, 	1989
Appearance: 	Cliff Fried, 	President Local 3238, 	for American
Federation of State, 	County and Municipal Employees, 	Council 	10,
Locals 	3235 	and 3238.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(Board) 	on appeal by the 	charging parties 	of a Board agent's
dismissal 	(attached hereto) 	of 	their charge that the 	respondent
violated 	section 	35711 of 	the 	Higher 	Education Employer-Employee
Relations Act 	(Gov. 	Code sec. 	3560 et seq.). 	We have reviewed
the dismissal and, 	finding it 	free of prejudicial error, 	adopt 	it
as 	the Decision of the Board itself.
1Although the 	Board 	agent's warning 	letter 	states 	that 	the
unfair practice 	charge 	alleges 	violations 	of Government 	Code
section 3571, 	subdivisions 	(a) 	and 	(b), 	the Board notes that the
charge 	also 	included alleged violations 	of 	section 	3571,
subdivisions 	(c) 	and 	(d) 	which were 	fully addressed by the 	Board
agent 	in the warning 	letter and 	subsequent dismissal.
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* * * OVERRULED by Culver City Employees Association v. City of Culver City
(2020) PERB Decision No. 2731-M * * *

The unfair practice charge 	in Case No. 	LA-CE-243-H 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By the 	BOARD
22

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
May 31, 	1989
Cliff Fried, President
AFSCME Local 	3238
13833 Oxnard St., #16
Van Nuys, California 91401
Re: 	DISMISSAL OF CHARGE AND REFUSAL TO ISSUE COMPLAINT; 	Federico
Martin, President. Local 3235 and Cliff Fried. President.
Local 3238 	(AFSCME Council 	10) 	v. 	Regents of the University
of California; 	Unfair Practice Charge No. 	LA-CE-243-H 	(First
Amended Charge)
Dear Mr. Fried:
I 	indicated to you in my attached letter dated April 28, 	1989,
that the above-referenced charge did not state a prima facie
case. 	You were advised that if there were any factual
inaccuracies or additional facts that would correct the
deficiencies explained in that letter, 	you should amend the
charge accordingly. 	You were further advised that unless you
amended the charge to state a prima facie case, 	or withdrew it
prior to May 12, 	1989, the charge would be dismissed.
On May 10, 	1989, you verbally requested, 	and were granted, an
extension of time to file an amended charge not later than May
26, 	1989. 	Your First Amended Charge was placed in the mail on
May 26, 	1989, and received in this office on May 30, 	1989.
The amended charge includes one additional factual allegation not
contained in the original charge, 	and offers an additional theory
of the case. 	The balance of the statement appended to the
amended charge constitutes reargument of points previously
addressed. 	The one additional fact alleged is that the
University indicated to an AFSCME representative 	(Ken Brown),
after issuance of the March 15, 	1988 letter1 that a final
decision would be made in June 	1988 upon review of any additional
deduction authorizations 	submitted by AFSCME. 	Such a statement
is, however, 	consistent with the 90 days notice provided by the
University by its March 15, 	1988 letter, 	and in no way changes
the applicability of the analysis set forth in my April 28, 	1989
letter.
1 The March 15 letter gave AFSCME Council 	10 only 90 days to
reach the minimum level of enrollments required to maintain a
payroll deduction slot for benefit programs, 	or face termination
of the deduction slot.
•. .

Cliff 	Fried
May 31, 	1989
Page 2
The 	new theory of 	the 	case 	offered by the 	amended 	charge 	is 	that
the 	University violated Government Code 	sections 	3565 	and 	3571
(a) 	and 	(b) 	by not providing notice to non-exclusively
represented employees 	of a 	change 	in policy 	(namely, 	the March
15, 	1988 	letter) 	and providing employees an opportunity, 	through
their chosen employee organization, 	to meet and confer over the
issue, 	as 	required by Regents 	of the 	University of California v.
Public 	Employment Relations 	Board 	(1985) 	168 	Cal.App.3d 	937 	[214
Cal.Rptr. 	698]. 	This alleged violation also fails to state a
prima facie case because the charge, 	as written, 	does not
establish 	that 	the 	University 	enacted a 	change 	in policy with
respect to the access 	of 	employee organizations 	to payroll
deduction slots 	for benefit programs.
The 	statement 	submitted with 	the 	amended 	charge 	acknowledges 	that
the 	HEERA does 	not provide 	for payroll deduction 	for benefits
programs as a right of employees or employee organizations, 	that
the 	contract 	language of the agreement between AFSCME 	and 	the
University 	is 	clear and the 	accounting manual 	requirements
discussed in the April 28, 	1989 letter exist. 	The charge argues
for a 	finding of 	a prima 	facie violation essentially on the basis
that the 	University's 	decision to adhere to the 	accounting manual
requirements 	had an 	impact 	on both 	employees 	and AFSCME 	and 	on
the unsupported assertion that this 	impact 	(concerning a 	non-
protected activity) 	interfered with AFSCME's 	organizing
activities.
The 	only 	specific point 	in my April 	28 	letter which you dispute
concerns 	the actual number of 	employees 	enrolled 	for benefits
programs 	that AFSCME needed, 	under the accounting manual
requirements 	cited, 	to maintain eligibility 	for the deduction
slot. 	You argue that AFSCME 	should have had a year 	from January
1988 to reach a minimum of 	500, 	because Council 	10 was a 	"new
sponsor" 	offering 	"new" 	benefit programs. 	Even assuming, 	for
argument sake, 	this 	is true and that AFSCME Council 	10 	should
have been treated as 	a 	"new" 	organization, 	AFSCME 	still did not
meet 	the requirements 	of 	the accounting manual policy cited by
the University in its March 	15, 	1988 	letter. 	The accounting
manual policy includes the requirement that, 	in order to begin
payroll deduction, 	an employee organization have already enrolled
50 members 	or 25% of the employee organization membership
(whichever is greater). 	which would calculate in this 	case to a

Cliff 	Fried
May 31, 	1989
Page 3
minimum of 	1000,2 given your estimate of AFSCME's 	membership 	as
4000. 	The charge as written alleges 	that AFSCME 	submitted 	some
200 to 250 enrollments, 	not 500, 	and certainly not 	1000.
I 	am therefore dismissing the 	charge based on the 	facts 	and
reasons 	contained in this 	letter and my April 28, 	1989 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations 	Board regulations, 	you
may obtain a review of this dismissal 	of 	the charge by filing an
appeal 	to the Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such appeal must be actually received by 	the 	Board
itself before the close of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or Express 	United States mail postmarked no
later than the 	last date 	set 	for filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall apply. 	The Board's 	address 	is:
Public Employment Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal 	to 	issue a 	complaint,
any other party may 	file with 	the 	Board an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date of 	service of the appeal 	(California
Administrative Code, title 8, 	section 32635(b)).
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy of a document 	served upon a party or 	filed
with the 	Board 	itself. 	(See California Administrative Code,
title 	8, 	section 32140 for the required contents and a 	sample
form.) 	The document will be considered properly 	"served" 	when
2The 	anomaly of 	the 	minimum number required 	to 	begin
deductions 	being higher than the 	required 	number 	to 	maintain
deduction was already discussed in my April 	28, 	1989 	letter, 	and
I 	remain willing 	to accept your postulation that 	the number
required would be only 	500.
•

Cliff 	Fried
May 31, 	1989
Page 	4
personally delivered 	or deposited 	in the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with 	the 	Board 	itself 	must be 	in writing and 	filed with the 	Board
at 	the previously noted 	address. 	A request 	for an extension must
be 	filed 	at 	least 	three 	calendar days 	before the 	expiration of
the 	time 	required 	for 	filing the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of each other
party regarding the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service of 	the request upon each party 	(California
Administrative Code, 	title 8, 	section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will become 	final when the time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
Les 	Chisholm
Regional 	Director
Attachment
cc: 	Federico Martin
Susan Benjamin

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
April 28, 1989
Cliff Fried, 	President
AFSCME Local 3238
13833 Oxnard St., #16
Van Nuys, 	CA 91401
Re: 	WARNING LETTER; Federico Martin. 	President. Local 3235 and
Cliff Fried. President. Local 3238 	(AFSCME Council 10) v.
Regents of the University of California; 	Unfair Practice
Charge No. 	LA-CE-243-H
Dear Mr. Fried:
The above-referenced charge, 	filed with PERB's Los Angeles
regional office on November 1, 	1988, alleges that the Regents of
the University of California 	(Respondent or UC) 	violated
Government Code section 3571 	(a) 	and 	(b) 	by cancelling access for
AFSCME and its members to a payroll deduction slot for benefits
programs 	sponsored for members only by AFSCME. 	The Charging
Parties in this case are both yourself and Federico Martin, 	and
AFSCME Locals 3238 and 3235.
My investigation revealed the following information. 	AFSCME is
the exclusive representative of three systemwide bargaining units
of UC employees 	(Service, 	Patient Care Technical and Clerical &
Allied Service) 	and the unit of UC Santa Cruz skilled crafts
employees. 	In addition, AFSCME has members who are employed in
positions 	included in non-exclusively represented bargaining
units, 	including Systemwide Technical. 	AFSCME Local 3235
includes members who are employed in the Clerical & Allied
Service bargaining unit on the UC Los Angeles campus. 	Local 3238
includes members who are employed in professional and technical
positions, which are not a part of any represented unit, 	on the
UC Los Angeles campus. 	Both locals are affiliated with AFSCME
Council 10, which is the bargaining representative for all AFSCME
locals in the UC system.
Since at least 	1978, AFSCME affiliates 	(in various organizational
structures) have submitted payroll deduction forms to UC, 	at all
campuses, 	so that fees or premiums for AFSCME-sponsored insurance
benefit programs would be deducted from members' 	pay warrants.
UC provided, 	in its Accounting Manual, 	a procedure for this
arrangement, with certain minimum qualifications established.
Under these rules, 	employee organizations could provide for

Cliff 	Fried
April 28, 	1989
Page 2
membership participation 	in non-UC 	sponsored 	insurance benefit
programs, 	provided that
a) 	deductions were available to members 	only;
b) 	within one year, 	the program had 500 or more
participating 	UC 	employees 	and participation to 	that 	extent
continues;
c) 	the program is not restricted to a geographic 	area of 	the
State;
d) 	such program met 	legal 	requirements 	and all 	of the
regulations 	established by 	the 	State's 	Insurance
Commissioner;
e) 	to begin payroll deduction, 	insurance benefit programs
have already enrolled 	50 members 	or 25% 	of the employee
organization membership 	(whichever is 	greater) 	for payroll
deduction; and
f) 	participation will be reviewed annually to determine
whether the 	500-member minimum 	is 	being met.
The 	current collective bargaining agreements 	between AFSCME 	and
UC 	include a provision citing AFSCME's 	access 	to the payroll
deduction slot for insurance benefit programs, 	subject to the
requirements 	set 	forth above 	from the Accounting Manual.
In January 	1988, 	AFSCME Council 	10 	informed UC that Council 	10
itself would be 	sponsoring the benefit programs 	and that a 	new
package of 	insurance benefits was 	to be offered. 	A meeting was
later held between representatives of Council 	10 	and UC, 	where
certain concerns 	of 	UC were 	aired 	about an auto 	insurance policy
being offered at 	UC San Diego.
By letter dated March 	15, 	1988, 	UC advised AFSCME Council 	10 that
the 	total 	number of AFSCME members 	enrolled 	in AFSCME-sponsored
insurance benefit programs was only 	36 	and that, 	unless 	the
enrollment was 	increased to 	the minimum of 	500 	members within 	90
days 	(or by June 	13, 	1988), 	payroll deduction for AFSCME benefit
programs would be cancelled. 	It 	is 	undisputed that no meetings
were 	held between AFSCME 	and 	UC 	concerning the policy after 	the
March 	15 	letter issued, 	and that no demand to bargain the 	issue
was 	ever made by AFSCME. 	In early June 	1988, 	some 200-250
additional deduction forms 	submitted by AFSCME were 	not 	accepted

Cliff 	Fried
April 28, 	1989
Page 3
by UC, 	and the existing deductions 	(for 36 members) 	were
cancelled.
DISCUSSION
As written, 	the charge argues 	for a 	finding that the Respondent
was 	not 	entitled to enforce the provisions 	of the Accounting
Manual 	cited above because 	UC had 	"sat on" 	its 	rights 	for up to
ten years or, 	alternatively, 	because AFSCME Council 	10 was a
different 	sponsoring organization behind 	the benefits 	programs
and payroll deduction slot, 	entitled under the policy to a 	full
year to reach the 	500 member minimum. 	In addition, 	you have
argued 	that 	the 	Respondent's 	conduct 	constitutes 	interference
with employee and AFSCME rights, 	reasoning that AFSCME utilized
the 	insurance benefit programs 	as 	an organizing tool 	to 	encourage
membership, 	that UC knew this 	and that UC acted to enforce the
policy on minimum participation because 	of 	the 	organizing
implications.
Where, 	as 	is the case here, 	the established policy is clear and
unambiguous on its 	face, 	it is not possible to infer from past
practice 	a 	finding which 	supersedes 	the language of 	the policy
itself. 	Marysville Joint Unified School 	District 	(1983) 	PERB
Decision No. 	314. 	"The mere fact that an employer has not chosen
to enforce its 	. 	. 	. 	rights in the past does not mean that, 	ipso
facto, 	it is forever precluded from doing so." 	Ibid,, 	at p. 	10,
citing Rio Hondo Community College 	District 	(1982) 	PERB Decision
No. 279.
For the question of whether AFSCME Council 	10 	is 	a 	"new"
organization to become relevant 	to 	a determination of whether 	a
prima 	facie violation has been 	stated, 	it would 	first be
necessary for the charge to allege that, 	if so, AFSCME Council 	10
had 	submitted 	the 	required 	minimum 	number of payroll 	deduction
forms to begin the process. 	You have alleged that AFSCME had, 	in
addition to the original 	36 	enrolled members, 	some 	200-250
deduction forms 	signed by members. 	Under the policy cited above,
AFSCME Council 	10 was required to have 50 members, 	or 25% of 	its
members 	(whichever is greater), 	enrolled in order to begin having
payroll deduction for benefits programs. 	You indicated to me, 	in
our telephone conversation of April 	27, 	1989, 	that AFSCME Council
10's current membership is in excess of 4400; 	since 25% of 4400
is 	over 	1000, 	it would appear the 500-minimum is 	in fact the
minimum AFSCME would be required to reach, 	whether a 	"new" 	or

Cliff 	Fried
April 28, 	1989
Page 4
"old" 	sponsor, 	in order to become or remain eligible 	for the
payroll deduction slot.1
In order to demonstrate a prima 	facie 	case 	for a 	finding of 	an
interference violation, 	there must be a 	showing that Respondent's
conduct tends 	to or does 	result 	in 	some harm to 	employee and/or
employee 	organization rights. 	Carlsbad 	Unified 	School 	District
(1979) 	PERB Decision No. 	89, 	Novato Unified School District
(1982) 	PERB Decision No. 	210, 	Coast Community College District
(1982) 	PERB Decision No. 	251. 	Here, 	the rights shown to be
harmed must be 	those protected under the 	Higher Education
Employer-Employee Relations Act 	(HEERA). 	Government Code 	section
3565 	sets 	forth the right of higher education employees 	to 	"form,
join and participate 	in" 	employee organizations 	of their own
choosing 	"for the purpose 	of 	representation on all 	matters 	of
employer-employee relations 	and 	for the purpose of meeting and
- - 	- -conferring." 	(Emphasis added.) 	Employees, 	of course, 	also have
the right to not form, 	join and so forth.
HEERA also provides 	certain rights 	to 	employee 	organizations,
including the right of access 	(section 3568), 	the right, 	if the
exclusive representative of an appropriate unit, 	to represent
employees 	on all matters within the 	scope of 	representation
(section 3570), 	and the right, 	upon written authorization of an
employee, 	to have deducted and remitted to 	it the 	"standard
initiation fee, 	periodic dues, 	and any general assessments of
such organization" 	(section 3585).
The 	"right to participate" 	may easily be 	construed 	to 	include 	the
right of 	employees 	to participate 	in insurance programs 	offered
by an employee organization, 	and the right of the employee
organization to offer such programs 	for its members. 	Still
missing, 	however and essential to the analysis, 	is any obligation
on the part of 	the higher education employer to provide payroll
deduction for this purpose. 	Section 3585 	enumerates 	the types 	of
deductions which are required, 	and 	insurance benefits programs
are not listed. 	Charging Party's argument, 	essentially, 	is that
1A literal 	reading of 	the policy would result 	in the 	anomaly
of an employee organization, 	under these 	factual 	circumstances,
being required to have more members 	enrolled to begin a program
than to continue a program. 	A more 	liberal 	(and perhaps 	more
rational) 	reading is 	that the minimum of 	500 	required to continue
would become 	the minimum required to begin in 	such a 	case. 	As
noted, 	AFSCME did not meet either test.

Cliff 	Fried
April 28, 	1989
Page 5
since payroll 	deduction 	facilitates 	enrollment by the 	employee
organization of members 	in insurance programs 	(thus 	assisting 	the
membership recruitment effort itself), 	it is 	"interference" 	for
the employer to 	limit or cancel access 	to the deduction. 	Such a
conclusion is 	unsupported by the 	language 	of 	HEERA and 	case 	law.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge
accordingly. 	The amended 	charge 	should be prepared on a 	standard
PERB unfair practice 	charge 	form clearly 	labeled 	First Amended
Chargef 	contain all 	the 	facts 	and allegations 	you wish to make,
and must be 	signed under penalty of perjury by the 	charging
party. 	The amended charge must be 	served on the respondent and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge 	or withdrawal 	from you before 	May
12, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	322-3198.
Sincerely,
Les 	Chisholm
Regional 	Director
cc: 	Federico Martin