Regents of the University of California (University of California-American Federation of Teachers) (PERB 0771H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,

Charging Party, Case No. LA-CE-180-H

Vv. ERB Decision No. 771-H

THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,

September 28, 1989

Respondent.

ee et Ne Nel ee et ee et et et et

Appearances: Lawrence Rosenzweig, Attorney, for the University
Council-American Federation of Teachers; Marcia J. Canning,
Attorney, for The Regents of the University of California.
Before Hesse, Chairperson; Craib and Shank, Members.
DECISION

SHANK, Member: This case is before the Public Employment
Relations Board (Board) on exceptions filed by the Regents of the
University of California (University) to the proposed decision of
an administrative law judge (ALJ). The case arose out of an
unfair practice charge filed by the University Council-American
Federation of Teachers (UCAFT) against the University alleging

violations of the Higher Education Employer-Employee Relations

Act (HEERA).’ Specifically, UCAFT alleges that the University:

‘UEERA is codified at Government Code section 3560 et seq.
Unless otherwise indicated, all statutory references are to the
Government Code. Section 3571 states in pertinent part:

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,

(a)
	set
	a
	uniform
	campuswide
	workload
	standard 	of 	nine
"instructional
	workload
	courses,"
	over
	three
	academic
	quarters,
at
	the
	University 	of
	California
	San 	Diego
	(UCSD)
	campus,
	while
the
	past
	practice
	was
	to
	permit
	academic
	departments
	to
	set
	the
standard
	at
	less
	than 	nine;
	and 	(b)
	unilaterally
	determined
	that
all
	freshman
	writing
	courses
	are
	not
	the 	equivalent
	of
	an
instructional
	workload
	course.
The
	ALJ
	found
	that
	UCAFT
	failed
	to
	show
	that
	there
	was
	an
established
	policy
	giving
	departments 	primary
	or
	final 	authority
to
	set
	courseload
	maximums
	and
	dismissed
	that
	portion
	of
	the
complaint.
	The
	ALJ
	further
	found
	that
	the
	bargaining
	history
demonstrates
	that
	the 	University 	obtained 	the
	right
	to
	decide
whether 	departmental 	standards
	would
	vary
	or
	whether 	they
	would
be
	uniform,
	and
	to
	insist
	upon 	any
	courseload
	level,
	so
	long 	as
it
	did
	not
	exceed
	nine
	instructional
	workload
	courses.
The
	ALJ
	found
	that
	the 	University
	was
	not
	free 	to
	give
	a
value 	of
	less
	than 	1.0
	instructional
	workload
	course
	once
	the
three
	components
	of 	the
	definition
	were 	met.
The
	Board,
	after
	review 	of 	the
	entire
	record, 	finds 	the
ALJ's 	findings 	of
	fact 	to
	be
	free
	from
	prejudicial 	error
	and
adopts
	them
	as
	its
	own. 	The
	Board
	affirms
	that 	portion 	of 	the
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

ALJ's
	attached
	proposed
	decision,
	dismissing 	the
	allegation 	that
the
	University
	unilaterally 	set
	a
	uniform
	campuswide
	workload
standard
	of 	nine
	instructional
	workload
	courses 	over
	three
academic
	quarters
	at
	the
	UCSD
	campus.
	We
	reverse 	the
	ALJ's
finding
	that
	the 	University
	unilaterally
	determined
	that
	writing
courses 	are
	not 	the 	equivalent
	of
	an
	instructional
	workload
course 	for 	the
	reasons
	set
	forth
	below.
The
	University
	filed
	seven
	general 	exceptions
	to 	the
	ALJ's
finding
	that
	it
	unilaterally
	determined
	that
	writing
	courses 	are
not
	the 	equivalent
	of
	an
	instructional
	workload
	course.
	UCAFT
filed
	a
	response
	to 	the 	University's
	exceptions.
DISCUSSION
The
	ALJ
	found
	that
	the 	University 	misapplied 	the 	language 	of
the
	memorandum
	of 	understanding
	(MOU)
	between
	the
	parties,
	when
the 	University
	concluded
	that
	all
	freshman
	writing
	courses
	are
not 	the 	equivalent
	of
	a
	"traditional'' 	instructional
	workload
course.
	The 	ALJ
	further
	considered 	the 	bargaining
	history 	of 	the
parties
	and
	the 	record 	as
	a
	whole
	to
	determine
	what
	was
	intended
as 	an
	instructional
	workload
	course.
2
Article
	XXV,
	section
	A,
	of 	the
	MOU
	sets 	forth 	the
instructional
	workload
	standard, 	course
	definition
	and
equivalencies:
1. 	The
	full-time
	(100%)
	instructional
workload 	standard 	for 	faculty/instructors 	in
2
Extrinsic 	evidence
	is 	properly 	considered
	when
	the 	contractlanguage
	is
	ambiguous. 	(Victor Valley
	Community
	College
	District
(1986)
	PERB
	Decision
	No.
	570.) 	Since
	we
	find
	no 	ambiguity 	in 	the
MOU, 	we
	will 	not 	consider 	the 	bargaining 	history.
3

the
	unit
	for
	an 	academic
	year
	shall
	not
exceed
	nine
	(9)
	instructional
	workload
courses 	over
	three
	(3)
	quarters 	or 	six
	(6)
instructional
	workload
	courses 	over
	two
	(2)
semesters, 	or
	the
	equivalent.
	Instructional
workloads
	may
	be
	lower, 	based
	upon
	the
instructional
	workload
	standard
	of
	the
department,
	program
	or
	board.
2.	
For
	the
	purpose
	of
	this 	Article,
	a
	course
as
	referred
	to 	in
	Section
	A.1.
	above
	shall
	be
called
	an
	instructional
	workload
	course
	and
shall
	be
	defined
	as
	an
	instructional 	offering
that
	is
	regularly
	scheduled,
	requires
significant
	academic
	preparation 	outside 	the
class
	by
	the
	instructor,
	and 	meets
	a
	minimum
of
	three
	(3)
	hours
	per
	week.
3.	
It
	is
	recognized
	that
	some
	instruction
does
	not
	fit
	the
	definition
	of
	an
instructional
	workload
	course 	as
	defined
	in
Section
	A.2. 	above.
	Examples
	of
instructional 	offerings
	which
	do
	not
	conform
to 	the
	definition 	in
	Section
	A.2.
	above
	are
laboratory 	supervision, 	supervision
	of
teaching
	assistants,
	studio
	instruction,
	and
clinical
	instruction.
	The
	University
	shall
determine 	whether
	a
	course
	conforms
	to 	the
definition
	of
	an
	instructional
	workload
course
	in
	Section
	A.2. 	above, 	and
	shall
establish
	the 	equivalencies 	for 	the
instructional 	offerings
	which
	do
	not
	conform
to 	the
	definition
	of
	an
	instructional
workload
	course. 	Equivalencies
	for 	these
instructional 	offerings 	will
	be
	defined
proportionate 	to 	the
	instructional
	workload
course 	as
	defined 	in 	Section
A.2. 	above.
4.	
The
	workload
	of 	the 	unit
	member
	in
	non-
lecturer
	titles
	as
	defined 	in 	Article
	V.
Non-Lecturer 	Unit
	Members,
	shall
	continue 	to
be 	determined
	in
	accordance 	with 	current
campus
	procedures.
	Should
	the 	University
propose 	changes
	to 	these
	campus
	procedures,
the 	University will
	meet 	and
	discuss 	over 	the
changes.
5.	
In determining 	the 	relative
	workload
value 	of 	instructional 	offerings
	and
	course
equivalencies, 	the 	University 	shall 	consider
the 	instructional
	and
	evaluation
	methods
employed, 	the 	nature 	of 	the 	courses 	assigned,
4

the 	preparations 	required, 	the
	number
	of
students
	expected
	to
	enroll,
	and
	the
availability
	of 	support
	employees.
	In
addition, 	the
	University
	may
	consider
	other
factors.
6.	
In
	determining
	workload,
	the 	University
shall
	consider
	other 	duties
	that
	have
	been
assigned.
7. 	Workload
	values 	of
	instructionalofferings
	and
	course
	equivalencies
	based
	upon
the 	provisions
	of
	this
	section
	shall
	be
established 	for
	each
	department,
	program
	or
board.
	Workload
	values,
	by
	department,
	will
be
	forwarded
	to
	the
	UC/AFT
	by
	February
	1,1987.
	The
	UC/AFT
	will
	be
	notified
	of
	any
changes.
	At
	the
	time 	of
	appointment
	the
faculty/instructor 	in
	the
	unit 	will
	be
informed
	of
	the 	applicable
	workload
	values
	in
effect 	at
	the
	time.
The
	ALJ
	determined
	that
	the 	University's
	interpretation
	of
the
	MOU
	was
	not 	supported
	by
	the 	bargaining
	history.
	The
University
	interprets
	the
	MOU
	as 	allowing
	it
	to
	determine 	whether
a
	course
	fits
	the
	definition
	of
	an
	instructional
	workload
	course
and
	to
	value
	a
	course
	at
	less
	than 	1.0
	instructional
	workload
course,
	if
	the 	course
	was
	determined 	not
	to
	fit
	the
	definition.
The
	plain
	language 	of
	the
	MOU
	is
	most
	susceptible 	to 	the
interpretation
	offered
	by
	the 	University.
Article
	XXV,
	section
	A.3.
	recognizes
	that
	some
	courses
	do
not
	fit
	the 	instructional
	workload 	course
	definition,
specifically
	authorizes 	the 	University 	to
	determine 	whether
	a
course
	is
	an
	instructional
	workload 	course,
	and
	authorizes 	the
University 	to 	value 	courses
	that
	do
	not 	conform.
	Section 	A.3.
provides 	that: 
The
	University 	shall 	determine 	whether
a
	course 	conforms
	to 	the 	definition 	of 	an
5

instructional
	workload
	course
	in
	Section
	A.2.
above,
	and
	shall 	establish
	equivalencies
	for
the
	instructional
	offerings
	which
	do
	not
conform
	to
	the
	definition
	of
	an
	instructional
workload
	course. 	Equivalencies
	for 	these
instructional
	offerings
	will
	be
	defined
proportionate 	to 	the
	instructional
	workload
course
	as
	defined
	in
	section
A.2. 	above.
Section
	A.5.
	establishes
	guidelines
	that
	the 	University
	must
consider
	in
	determining
	the
	relative
	workload
	value 	of
instructional
	offerings
	and
	course
	equivalencies
	and
	allows
	the
University 	to 	consider 	"other 	factors''
	at
	its
	discretion.
	The
record
	shows
	that
	the 	University
	decided
	that
	freshman
	writing
courses 	did 	not
	meet
	the
	instructional
	workload
	course
	definition
based
	upon
	the
	recommendation
	of
	its
	staff
	and
	various 	deans.
Witnesses
	for
	UCAFT
	testified
	as
	to 	the
	work
	involved
	in 	teaching
a
	writing
	course
	and
	recommended
	that
	writing
	courses
	systemwide
be
	equivalent 	to
	1.25
	-
	1.50
	of 	the
	instructional
	workload
	course
described 	in
	the
	MOU.
The
	University's 	interpretation 	is
	consistent
	with
	the 	plain
language 	of 	the
	MOU.
	Article
	XXV
	clearly
	authorizes 	the
University 	to
	determine 	equivalency 	standards.
	There
	is
	no
language
	limiting 	the 	University's 	authority 	or 	establishing
	an
abuse 	of
	discretion
	standard. 	Therefore, 	the 	University 	did
	not
violate
	HEERA
	section
	3571 	when
	it
	determined
	that 	all
	UCSD
writing
	program 	courses 	were 	not
	instructional
	workload
	courses
and 	when
	it
	accorded 	the 	writing 	courses
	a
	value 	of 	less 	than 	1.0
instructional
	workload 	course.
6

ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire 	record, 	Case 	No. 	LA-CE-180-H 	is 	hereby 	DISMISSED.
Chairperson 	Hesse's 	concurrence 	begins 	on 	page 	8.
Member 	Craib's 	dissent 	begins 	on 	page 	14•
7

A
Hesse,
	Chairperson, 	concurring:
	Although
	I
	agree
	with
Member
	Shank
	that
	the
	Regents
	of
	the 	University 	of
	California
(University)
	did
	not
	violate
	section
	3571(c)
	of
	the
	Higher
Education
	Employer-Employee
	Relations
	Act
	(HEERA)
	when
	it
	valued
all
	freshmen
	writing
	courses
	at
	the
	University 	of
	California,
	San
Diego
	(UCSD)
	at
	75
	percent
	of
	one
	instructional
	workload
	course
(IWC),
	I
	write 	separately 	to 	present
	my
	analysis
	on
	this 	issue.
Regarding
	the 	issue
	of
	the 	nine-course
	maximum
	workload,
	the
administrative
	law
	judge
	(ALJ)
	found
	that
	the 	University 	Council-
American
	Federation 	of
	Teachers
	(UCAFT)
	had
	failed
	to
	show
	a
unilateral
	change
	because,
	under
	the
	memorandum
	of 	understanding
(MOU),
	the 	University
	had 	chosen
	one
	of
	two
	viable
interpretations
	of
	the
	workload
	provision.
	With
	regard
	to
	the
University's
	valuation
	of
	the
	freshmen
	writing 	courses,
	the
	ALJ
found
	that
	the 	University 	did 	not
	merely
	interpret
	the 	language
of
	the
	MOU,
	but,
	that
	its
	conduct
	constituted
	a
	"repudiation
	of
the
	workload
	article
	as
	a
	whole."
	Specifically,
	when
	the
University
	valued
	all
	writing
	courses
	at
	less
	than
	one
	IWC,
	the
ALJ
	concluded
	that
	the 	University
	engaged
	in
	a
	"unilateral
alteration
	of
	a
	term 	and
	condition 	of
	employment
	(workload)
established
	by
	the	
MOU."
Like 	the 	issue 	of 	the 	nine-course
	workload
	standard,
	I
	find
that
	UCAFT
	has 	only
	shown
	that
	the 	University
	made
	one
	of
	two
viable 	interpretations 	of 	the
	MOU,
	and
	that
	evidence 	of 	the
bargaining 	history 	supports 	the 	University's 	interpretation 	of
Article
	XXV
	of 	the
	MOU.
8

In
	Grant
	Joint
	Union
	High
	School
	District
	(1982)
	PERB
Decision
	No.
	196,
	the
	Board
	clarified
	the
	test
	for
	proving
	a
unilateral
	change,
	and
	made 	a
	distinction
	between
	a
	breach 	of
contract
	and
	a
	change
	of
	policy
	having
	a
	generalized
	effect
	or
continuing
	impact
	upon
	the
	terms
	and
	conditions 	of
	employment
	of
bargaining
	unit
	members.
	Specifically,
	the
	Board
	stated:
This
	is
	not
	to
	say
	that
	every 	breach 	of
contract 	also 	violates
	the
	[Educational
Employment
	Relations]
	Act.
	Such
	a
	breach
must 	amount
	to
	a
	change
	of
	policy,
	not
	merely
a
	default 	in
	a
	contractual 	obligation,
	before
it
	constitutes
	a
	violation
	of 	the
	duty
	to
bargain.
	This
	distinction
	is
	crucial.
	A
change
	of
	policy
	has,
	by
	definition,
	a
generalized
	effect
	or 	continuing
	impact
	upon
the
	terms
	and
	conditions 	of
	employment
	of
bargaining
	unit
	members.
	On
	the 	other
	hand,
when
	an 	employer
	unilaterally
	breaches
	an
agreement
	without
	instituting
	a 	new
	policy
	of
general
	application 	or 	continuing
	effect,
	its
conduct,
	though
	remediable 	through
	the 	courtsor
	arbitration,
	does
	not
	violate 	the
	Act.
The
	evil
	of 	the 	employer's 	conduct,
therefore,
	is
	not
	the
	breaching 	of
	the
contract 	per 	se, 	but 	the
	altering
	of
	an
established 	policy
	mutually 	agreed
	upon 	by
the
	parties
	during 	the 	negotiation 	process.
[Citations.]
	By
	unilaterally 	altering
	or
reversing
	a
	negotiated 	policy, 	the
	employer
effectively
	repudiates 	the
	agreement.
[Citation.]
(Id., 	at
	p.
	9.)
In 	determining whether
	the 	University's
	conduct
	constitutes
	a
breach 	of 	contract 	or
	a
	change
	of 	policy,
	one 	must 	examine
	the
bargaining 	history 	underlying
	Article
	XXV
	of 	the
	MOU.
1
1As
	the
	ALJ
	granted
	UCAFT's
	motion
	to
	amend
	the 	complaint 	to
rely 	solely
	on
	the 	theory 	that 	the 	established 	policy 	regarding
instructional
	workload 	was
	specifically
	embodied
	in 	the
	MOU
rather 	than 	past 	practice, 	past 	practice 	will 	not 	be 	considered
in 	deciding 	this 	issue. 
9

Bargaining
	between
	the 	University
	and
	UCAFT
	over
	the
	newly
created
	Unit
	18
	(the
	non-academic
	senate
	instructional
	employees)
began
	in
	October
	1984.
	Bargaining 	continued
	until
	May
	1986
	when
the
	parties
	reached
	their
	final
	item,
	workload
	standards
	and
workload 	equivalency
	evaluations
	under
	Article
	XXV.
Negotiators
	for
	both
	sides
	testified
	at
	length
	as
	to 	the
positions
	taken
	by
	the 	University
	and
	UCAFT
	at
	the 	bargaining
table.
	The
	University 	intended
	to
	maintain
	flexibility
	in
determining
	workload
	standards
	and
	course 	equivalency.
	UCAFT,
	on
the
	other
	hand,
	intended
	to
	actively 	participate 	in
	the
	decision-
making
	process
	so
	that
	the
	University's 	decisions
	would
	not
	be
arbitrary.
	The
	negotiations
	reflected
	these
	two
	positions
	as
each
	side
	attempted
	to 	trade
	language
	and
	proposals.
	On 	May
	24,
1986,
	the
	two
	bargaining
	teams
	presented
	themselves
	for
negotiations,
	but
	no
	across-the-table
	discussions 	occurred.
Instead,
	both
	teams
	caucused
	from
	approximately
	10
	a.m.
	to
	7
	p.m.
During
	these 	discussions,
	Robert
	Bickal, 	the 	University
negotiator, 	told
	Marde
	Gregory,
	the
	UCAFT
	negotiator,
	that
	the
University
	would
	not 	agree
	to
	any
	provision
	that 	identified 	the
individual 	or
	entity
	with 	the 	delegated 	authority 	to 	determine
maximum
	workload. 	Gregory, 	however,
	insisted 	that
	the 	University
remove
	the 	phrase 	"sole 	discretion"
	from
	paragraph A.3.
	because
she
	felt 	that 	ratification
	of 	the 	contract
	would 	be
	problematic
with 	the 	"sole 	discretion" 	language.
On 	May
	29,
	the 	parties
	reconvened.
	The
	University 	submitted
its 	final
	workload 	proposal 	which 	incorporated
	a
	nine-course
10

workload
	maximum.
	The
	proposal
	also 	deleted 	the 	"sole
discretion"
	language,
	but 	included
	a
	corresponding
	change
	in
	the
grievability
	section
	of
	Article
	XXV.
	This
	section
	prevented
bargaining
	unit
	members
	from
	grieving 	the 	University
1 s
establishment
	of
	workload
	standards 	or
	workload
	values.
	On
May
	30,
	after
	many
	proposals
	and
	continuous
	discussions,
	UCAFT
approved
	the
	University's
	May 	29
	workload
	proposal.
There
	is
	ample
	testimony
	in
	the 	record
	that
	UCSD
administrative
	officials
	discussed
	workload
	standards 	with
	their
department
	chairs
	during 	the
	fall
	of
	1986.
	UCSD
	administration
officials
	also
	discussed
	workload
	equivalency 	standards
	for
	their
freshmen
	writing
	courses.
	By
	February
	1987,
	UCSD
	administrative
officials
	decided
	that
	workload
	standards
	for
	most
	of
	their
departments
	would 	be
	set 	at
	the 	nine-course
	maximum
	workload 	as
provided
	in
	the
	MOU.
	Additionally,
	UCSD
	decided
	that
	all
freshmen
	writing
	courses
	would 	be
	valued
	at
	75
	percent 	of
	one
IWC,
	and
	that 	lecturers
	would 	be
	required 	to
	teach 	four 	courses
per 	quarter 	to
	be
	at
	100
	percent
	appointment.
2
As
	is
	evident
	from
	the 	bargaining
	history,
	the 	University
did 	not 	intend 	to 	give
	up
	its
	authority 	to
	decide 	workload
standards
	and
	course 	equivalencies. 	Rather, 	the
	removal
	of 	the
"sole 	discretion"
	language
	for
	ratification
	purposes
	must 	be
considered 	in 	light
	of 	the 	corresponding 	change
	in 	the
2An
	IWC
	is 	defined 	in 	the
	MOU
	as 	follows:
	"An
	instructional
offering 	that 	is 	regularly 	scheduled, 	requires 	significantacademic 	preparation 	outside 	the 	class
	by
	the 	instructor,
	and
meets
	a 	minimum
	of 	three 	hours 	per week." 	(See
	Article
	XXV
	A.2.)
1 1

Grievability
	and
	Arbitrability
	section
	of
	Article
	XXV.
3
By
limiting
	the
	grievability
	of
	Article
	XXV
	to
	the 	procedural
applications,
	the 	University
	retained
	its
	authority 	to
	determine
the
	instructional
	workload
	standards
	and
	workload
	values
	of
instructional
	offerings
	and
	course
	equivalencies.
	Further, 	there
is
	no
	language
	in 	Article
	XXV
	limiting
	the
	University's
	authority
or
	establishing
	a
	standard
	of 	review.
The
	record
	also
	demonstrates
	that,
	in
	determining 	whether
the
	freshmen
	writing
	courses
	at
	UCSD
	satisfied
	the
	definition
	of
an
	IWC,
	the 	University 	consulted 	with
	the
	departments.
	In
applying 	the
	criteria
	of 	the
	IWC
	definition,
	the 	University
	and
UCAFT
	disagreed
	over
	the
	application
	of 	the
	term
	"significant
academic
	preparation."
	The
	fact 	that
	the
	parties
	disagree 	over
the
	amount
	of
	academic
	preparation 	required 	in 	the
	freshmen
writing
	courses
	at
	UCSD
	does
	not
	constitute
	a
	repudiation 	of
	the
G.
	Grievability
	and
	Arbitrability
1.	
Grievability 	shall
	be
	limited 	to 	theprocedural 	application
	of
	this 	Article
	and
not
	to 	the 	establishment 	of
	instructional
workload
	standards 	or
	workload
	values 	of
instructional 	offerings 	or
	course
equivalencies
	as 	determined
	by
	the
University. 	In 	the 	event
	that
	a
faculty/instructor 	in 	the 	unit 	believes
	that
the
	workload
	that
	has 	been 	assigned
	is
	in
violation
	of 	the
	workload
	values 	establishedpursuant 	to
	A.7.
	for 	the 	department, 	program
or 	board, 	the 	faculty/instructor 	in 	the 	unit
shall
	perform 	the 	duties
	as 	assigned
	and
	may
pursue 	the 	issue 	through 	the 	grievance
procedure 	as 	specified 	in 	Article
	XXXIII
Grievance 	Procedure.
2. 	The
	provisions 	of 	this 	Article 	are 	not
subject 	to 	Article
	XXXIV
	Arbitration.
12

MOU, 	but, 	at 	most, 	the 	conduct 	is 	no 	more 	than 	a 	contract
dispute.
As 	the 	bargaining 	history 	demonstrates, 	the 	University 	and
UCAFT 	had 	a 	different 	understanding 	of 	Article 	XXV of 	the 	MOU.
The 	University 	did 	not 	clearly 	repudiate 	any 	prior 	understanding
or 	agreement, 	but 	merely 	interpreted 	the 	meaning 	of 	the 	contract
language 	in 	a 	reasonable 	way, 	albeit 	differently 	than 	did 	UCAFT.
While 	Article 	XXV 	of 	the 	MOU 	can 	be 	viewed 	as 	somewhat 	ambiguous,
my 	review 	of 	the 	record, 	nonetheless, 	compels 	me 	to 	conclude 	that
UCAFT 	failed 	to 	establish, 	through 	evidence 	of 	negotiation
history, 	that 	the 	University 1 s 	conduct 	violated 	section 	3571(c)
of 	HEERA. 	For 	these 	reasons, 	I 	would 	reverse 	the 	ALJ 	on 	this
issue 	and 	dismiss 	the 	complaint.
13

Member
	Craib,
	dissenting:
	I
	must
	dissent
	from
	the 	lead
decision's
	simplistic 	application
	of
	the
	plain
	meaning
	rule.
Although
	we
	need
	not
	necessarily
	go
	beyond
	the
	plain
	language
	of
the 	contract 	to 	ascertain
	its
	meaning
	when
	the
	contract
	language
is
	clear
	and 	unambiguous 	on
	its
	face 	(Marysville
	Joint
	Unified
School
	District
	(1983)
	PERB
	Decision
	No.
	314),
	we
	must
	reconcile
all
	portions
	of 	the
	contract,
	if
	possible.
	If
	the
	contract
provisions
	cannot
	easily
	be
	reconciled,
	we 	may
	look
	to 	the
parties'
	bargaining
	history
	to
	ascertain
	their
	intent. 	(Ibid.
)
Although
	I
	believe
	that
	the
	analytical
	framework 	employed
	in
	the
concurring 	opinion
	is
	more
	appropriate 	to
	reach
	the 	proper
result,
	I
	also
	must
	dissent
	from
	that
	opinion
	because
	I
	believe
that
	the
	Regents
	of 	the 	University 	of
	California
	(University) 	did
change
	a
	policy
	which
	has
	a
	continuing
	impact
	upon
	the
	terms
	and
conditions
	of
	employment
	of 	bargaining
	unit
	members.
	(Grant
Joint
	Union 	High
	School
	District
	(1982)
	PERB
	Decision
	No.
	196,
	at
p.
	9.)
At
	issue, 	in 	this
	case,
	is
	the 	appropriate 	courseload
	for
	a
full-time
	freshman
	writing 	lecturer 	at
	the 	University.
	To
ascertain 	that
	course 	load,
	we
	must 	examine
	Article
	XXV
	of 	the
parties'
	most
	recent
	memorandum
	of 	understanding
	(MOU).
	This
article
	was
	negotiated 	for 	the
	first
	time
	in 	this
	MOU.
1
Prior 	to
1
The
	topic 	of
	a
	lecturer's
	workload 	has 	been
	a
	source 	of
ongoing 	controversy 	since 	approximately 	1980, 	when
	the 	Vice
Chancellor 	promulgated
	a
	directive 	that
	a
	full-time 	lecturer
should 	teach 	nine 	courses. 	This
	conflict 	pitted
	department 	heads
against 	the 	vice 	chancellors
	and 	deans.
	The
	departments
uniformly
	felt 	that
	a
	nine-course 	teaching 	load
	was
	excessive.
An
	uneasy 	truce
	was
	reached 	because 	the 	departments 	were 	able 	to
14

the 	current 	agreement, 	the 	appropriate 	workload 	was 	determined
pursuant 	to 	the 	University's 	Policy 	and 	Procedures 	Manual.
Article 	XXV, 	section A.1. 	sets 	nine 	instructional 	workload
courses 	per 	year 	as 	the 	teaching 	maximum 	for 	a 	full-time
lecturer. 	Instructional 	workload 	courses 	are 	defined 	as:
an 	instructional 	offering 	that 	is 	regularly
scheduled, 	requires 	significant 	academic
preparation 	outside 	the 	class 	by 	the
instructor, 	and 	meets 	a 	minimum 	of 	three 	(3)
hours 	per 	week.
The 	University 	has 	determined 	that 	all 	freshman 	writing 	courses
are 	not 	the 	equivalent 	of 	one 	"instructional 	workload 	course"
but, 	rather, 	have 	the 	equivalency 	of 	.75. 	Thus, 	under 	the
University's 	approach, 	in 	order 	to 	be 	considered 	full-time, 	a
writing 	instructor 	must 	teach 	12 	courses 	per 	year.
The 	majority 	has 	read Article 	XXV, 	section A.3. 	in 	isolation
and 	determined 	that, 	on 	its 	face, 	it 	grants 	th~ 	University 	the
exclusive 	authority 	to 	determine 	that 	writing 	courses 	are 	not 	the
equivalent 	of 	an 	"instructional 	workload 	course" 	as 	defined 	in
Article 	XXV, 	section A.2.
The 	majority's 	reading 	of 	the 	MOU 	essentially 	ignores 	the
language 	in Article 	XXV, 	section 	A.1., 	which 	sets 	nine
instructional 	workload 	courses 	as 	the 	maximum, 	full-time 	teaching
requirement. 	If 	the 	University 	is 	free 	to 	determine 	that 	any
individual 	course 	does 	not 	fall 	within 	the 	definition 	of 	an
carve 	out 	exceptions 	to 	the 	nine-course 	limit 	which 	permitted
each 	department 	to 	reduce 	the 	teaching 	load 	of 	its
lecturers. 	The 	department 	heads, 	however, 	never 	had 	final
approval 	authority.
15

''instructional 	workload 	course," 	the 	nine-course 	limit 	is
illusory. 	In 	effect, 	the 	majority 	has 	given 	the 	University 	carte
blanche 	to 	determine 	the 	value 	of 	every 	course 	on 	campus.
Without 	some 	limit 	on 	the 	University's 	discretion, 	the 	definition
of 	''instructional 	workload 	course" 	and 	the 	nine-course 	limit
become 	meaningless.
While 	an 	initial 	reading 	of 	the 	language 	in 	section A.3. 	and
A.5. 	may 	lend 	itself 	to 	an 	interpretation 	that 	sole, 	unfettered
discretion was 	given 	to 	the 	University, 	a 	review 	of 	the 	context
in which 	it 	was 	made 	tempers 	that 	reading. 	University 	Council,
American 	Federation 	of 	Teachers 	(UCAFT) 	insisted 	that 	a 	workload
limit 	be 	placed 	in 	the 	collective 	bargaining 	agreement 	in 	order
to 	protect 	its 	members 	from 	an 	overload 	of 	work. 	UCAFT was 	also
concerned 	about 	who 	would 	make 	the 	final 	determination 	of 	course
valuation. 	The 	parties 	negotiated 	the 	workload 	issues 	for 	a
number 	of 	days. 	Significantly, 	they 	spent 	substantial 	time
negotiating 	over 	maximum 	courseloads, 	and 	discussing 	the
decision-making 	process. 	Finally, 	they 	agreed 	upon 	a 	nine-course
maximum. 	In 	related 	negotiations, 	the 	issue 	of 	course
equivalencies 	and 	valuations 	was 	discussed. 	Again, 	significant
discussions 	took 	place 	regarding 	the 	decision-making 	process.
Finally, 	language 	giving 	the 	University 	"sole" 	discretion 	was
eliminated 	from 	the 	MOU. 2
2The 	University 	negotiator 	even 	indicated 	that 	he
did 	not 	have 	any 	realistic 	hope 	of 	bargaining
an 	unlimited 	right 	to 	establish 	any 	kind 	of
workload we 	wanted, 	but what 	[he] 	did 	want 	to
16

The 	bargaining 	history 	suggests 	that 	the 	University
represented 	that 	primary 	and 	initial 	determinations 	regarding
equivalencies 	and 	valuations 	would 	be 	made 	by 	the 	departments.
Although 	the 	University 	administration, 	after 	the 	implementation
of 	the 	MOU, 	sought 	input 	from 	the 	various 	departments, 	the
departmental 	recommendations 	were 	not 	adopted. 	Indeed, 	it
appears 	from 	the 	record 	that 	there 	was 	a 	wholesale 	rejection 	of
departmental 	opinion. 	The 	Dean 	of 	Humanities 	and 	Arts 	did 	not
even 	present 	these 	recommendations 	to 	the 	vice 	chancellor 	during
the 	deliberations 	on 	course 	valuations. 	It 	appears 	from 	the
dean's 	testimony 	that 	the 	.75 	valuation 	came 	about 	solely 	from
the 	dean's 	own 	recommendation. 	The 	University, 	thus, 	contrary 	to
its 	representations 	to 	the 	UCAFT, 	disregarded 	the 	departmental
recommendations 	and 	substituted 	its 	independent 	judgment. 	The
format 	bargained 	for 	by 	the 	parties 	was 	not 	utilized. 	Without
the 	assurances 	that 	an 	agreed-upon 	standard would 	be 	applied 	to
preserve was 	our 	ability 	to, 	within 	the
limits 	that 	were 	agreed 	to, 	establish 	what
that 	workload would 	be 	.
(Emphasis 	added.) 	Although 	the 	record 	does 	reflect 	that 	UCAFT
and 	the 	University 	agreed 	to 	remove 	the 	"sole 	discretion"
language 	in 	exchange 	for 	the 	inclusion 	of 	a 	restriction 	on 	the
right 	to 	grieve 	course 	valuations 	(see 	concurring 	opinion 	at
pp. 	4-5), 	I 	do 	not 	believe 	that 	the 	Grievability 	and
Arbitrability 	article 	can 	reasonably 	be 	read 	to 	preclude 	grieving
a 	"workload 	that 	. 	. 	violat[es] 	the 	workload 	values 	established
pursuant 	to 	A.7." 	Furthermore, 	even 	if 	the 	parties 	precluded
themselves 	from 	pursuing 	a 	remedy 	through 	the 	grievance
machinery, 	it 	does 	not 	preclude 	UCAFT 	from 	filing 	an 	unfair 	labor
practice 	based 	on 	a 	change 	in 	the 	policy 	embodied 	in 	the
negotiated 	agreement.
17

determine
	an
	"instructional
	workload
	course,'' 	the
	MOU's
	language
is
	meaningless.
Given
	the
	MOU's
	language
	and
	the 	bargaining
	history,
	it
	is
reasonable 	to
	assume
	that,
	although 	the 	University
	had
	the
authority
	to
	determine
	valuations
	and
	equivalencies,
	such
authority
	was
	limited.
	While
	the 	University
	was
	given
	the
ability
	to
	make
	the 	valuation 	determinations,
	it
	had
	to
	apply
	the
criteria
	set 	forth 	in
	the
	collective
	bargaining
	agreement
	in
	a
fair
	and
	reasonable
	manner.
	If
	those
	criteria
	were
	not
	applied
as
	negotiated
	by
	the
	parties,
	the 	University
	has
	repudiated 	the
contractual
	provision
	and,
	thus, 	violated 	section
	3571,
subdivision
	(c)
	of 	the
	Higher
	Education
	Employer-Employee
Relations
	Act.
I
	agree 	with
	the 	administrative
	law
	judge
	and 	would
	affirm
his 	decision.
	As
	he
	succinctly 	stated 	in 	his
	proposed
	decision:
[t]he 	misapplication
	[of
	the
	A.1.
	through
A.5.
	provisions 	of 	the 	contract]
	amounted
	to
a
	repudiation
	of
	the
	workload
	article
	as
	a
whole.
	If
	the
	UCSD,
	at
	its
	sole
	discretion,
could 	decide
	that
	any
	course
	is
	nonstandard
or
	that
	it
	could 	accord
	any
	weight
	less
	than
1.0 	without 	regard
	to
	bargaining
	history
	and
clear 	contract 	definition,
	the 	nine-coursepurpose
	and 	meaning.	
maximum
	would 	have
	no
(Proposed
	decision,
	p. 	56.)
	The
	language 	contained
	in
Article
	XXV
	resulted
	from
	days
	of 	negotiating
	and
	a
	history
	of
conflict
	over 	courseload
	maximums.
	Given
	the 	negotiating
history, 	the 	language
	in 	sections 	A.1., 	setting 	forth
	a 	maximum
courseload,
	and 	A.2. 	which
	sets 	forth
	a
	standard 	to 	define 	an
instructional
	workload 	course, 	the 	discretion 	afforded 	the
18

University 	in 	section
	A.3.
	cannot
	reasonably
	be
	read
	to
	be
unlimited.
	The
	collective
	bargaining
	agreement
	must 	be
	read 	to
reconcile
	all
	of
	Article
	XXV,
	which
	requires
	that
	the
	University
give
	effect
	to 	sections
	A.1.
	and
	A.2.
	The
	University's
	ability
to
	determine
	that
	an
	instructional 	offering
	does
	not
	meet
	the
parameters
	set
	forth 	in 	section
A.2.
	is
	not
	unfettered.
	To
	hold
otherwise
	effectively
	negates
	the 	negotiated
	standards
	in
sections
	A.1.
	and
	A.2.
I
	would,
	therefore,
	hold
	that
	the 	University
	violated
	its
duty
	to
	bargain
	in
	good
	faith
	by
	unilaterally
	changing
	the
policy,
	embodied
	in 	the
	Article
	XXV,
	section
	A.2.
	of 	the
collective
	bargaining
	agreement,
	which
	established 	the
	method
	for
course 	valuation.
19

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
UNIVERSITY 	COUNCIL,
	AMERICAN
FEDERATION
	OF
	TEACHERS,
Charging
	Party,
v.
THE
	REGENTS
	OF 	THE
	UNIVERSITY
	OF
CALIFORNIA,
Respondent.
)
)
)
)
)
)
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Unfair
	Practice
Case
	No.
	LA-CE-180-H
PROPOSED
	DECISION
(4/15/88)
______________________
)
Appearances:	
Lawrence 	Rosenzweig,
	Attorney,
	for 	University
Council,
	American
	Federation
	of 	Teachers;
	Marcia
	J.
Attorney, 	Office
	of
	the
	General 	Counsel
	for 	the
	Regents
	of 	the
University
	of
	California.
Canning,
Before
	Manuel
	M.
	Melgoza,
	Administrative
	Law
	Judge.
I.
	PROCEDURAL
	HISTORY
The
	University
	Council,
	American
	Federation
	of 	Teachers
(Union, 	Charging
	Party 	or
	UCAFT)
	filed
	the 	above-entitled
Unfair 	Practice
	Charge 	on 	December
	16, 	1986,
	alleging
	that
	the
Regents 	of
	the 	University 	of
	California
	(Respondent, 	Employer
or
	University),
	through
	its
	San 	Diego 	campus
	(UCSD),
unilaterally
	changed 	workload
	(courseload)
	policies
	embodied
	in
a
	recently-negotiated
	memorandum
	of 	understanding
	(MOU).
	The
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board)
	issued
	a
Complaint
	on
	May
	27, 	1987,
	alleging 	that 	the
	Respondent 	had
violated 	the 	Higher 	Education 	Employer-Employee
	Relations
	Act
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.

(HEERA
	or
	Act)
1
by
	essentially:
	a)
	setting
	a
	uniform
campus-wide 	workload
	standard
	of 	nine
	"instructional
	workload
courses",
	over
	three
	academic
	quarters, 	at
	the
	San
	Diego
campus,
	while
	the
	past
	practice
	was
	to
	permit
	academic
departments
	to
	set
	the 	standard
	at 	less
	than
	nine,
	and; 	b)
unilaterally
	determining
	that
	writing
	courses 	are
	not
	the
equivalent
	of
	an
	instructional
	workload
	course.
The
	University
	filed
	an
	Answer
	to 	the
	Complaint
	on
June
	15, 	1987, 	denying
	certain 	allegations
	and
	asserting,
	inter
alia,
	that
	the 	actions
	taken
	by
	UCSD
	in 	requiring
	a
	nine 	course
workload
	were
	in
	compliance
	with 	the
	MOU.
1	
The
	HEERA
	is
	codified 	at
	Government
	Code
	section
	3560,
et.seq.
	Section
	3571
	states,
	in 	pertinent 	part:
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
	interefere
	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

The
	Charging
	Party
	filed
	a
	motion
	to
	amend
	the
	Complaint
accompanied
	by
	a
	First
	Amended
	Unfair
	Practice
	Charge
	on
July
	13, 	1987.
	A
	response
	to 	the
	motion
	was
	received
	from
	the
University
	on
	August 	28, 	1987.
	On
	September 	15,
	1987
	after
	a
conference
	call
	with 	the
	parties,
	the
	motion
	was
	granted.
	The
amendment
	focused
	on
	the 	theory
	that
	the
	established 	policy
regarding
	instructional
	workload
	was
	specifically
	embodied
	in
the
	MOU
	rather
	than
	in
	general 	past
	practice.
	After 	the
issuance
	of
	the
	September 	15,
	1987
	ruling 	granting 	the
	above
motion,
	the
	Respondent
	filed
	an
	answer
	to 	the
	amended
	Complaint
(October
	7,
	1987)
	denying
	any
	violation
	of
	HEERA
	and
	asserting
that
	its
	conduct
	was
	in
	compliance
	with 	the
	terms 	of
	the
	MOU.
An
	informal 	conference
	conducted
	on
	June 	23, 	1987,
	failed
to
	result
	in
	a
	settlement
	of
	the
	above
	disputes. 	Thereafter,
an
	evidentiary
	hearing
	was
	held
	in
	San
	Diego,
	California
	on
October
	13-16
	and
	27, 	1987,
	before 	the 	undersigned.
Post-hearing
	briefs
	and
	reply
	briefs
	were
	submitted
	by
	both
parties.
	Upon
	the
	receipt
	of 	the
	last 	briefs
	on
February
	18, 	1988,
	the 	case
	was
	submitted 	for
	proposed
	decision.
II.
	INTRODUCTION
The
	issues 	in
	this
	case 	involve 	the 	subject 	of 	workload 	for
lecturers
	of 	Unit
	18
	at 	the 	University 	of
	California's
	San
Diego
	Campus.
	Specifically, 	the 	controversy 	centers
	around 	the
3

question
	of
	what
	is
	the
	appropriate
	courseload
	that 	full-time
(100-percent
	appointments)
	lecturers
	can
	be
	required 	to 	teach
in
	an 	academic
	year.
	Of
	primary 	focus
	will
	be
	Article
	XXV
	of
	a
1986-1988
	MOU
	between
	the
	parties,
	and
	the 	bargaining
	history
related
	to
	it.
	Previous
	practice
	regarding
	workloads
	will
	also
be
	used
	to 	describe 	the
	background
	surrounding
	negotiations.
The
	pertinent
	portions
	of
	the
	contractual
	provision
	at 	issue
are
	as 	follows:
Article
	XXV.
	INSTRUCTIONAL
	WORKLOAD
A.	
Instructional
	Workload
	Standard,
	Course
Definition
	and
	Eguivalencies
1.	
The
	full-time
	(100%)
	instructional
	workload
standard 	for
	faculty/instructors
	in 	the
	unit
	for
an 	academic
	year
	shall
	not 	exceed
	nine
	(9)
instructional
	workload
	courses
	over
	three
	(3)
quarters 	or
	six
	(6)
	instructional
	workload
courses
	over
	two
	(2)
	semesters, 	or 	the
equivalent. 	Instructional
	workloads
	may
	be
lower, 	based
	upon
	the
'instructional
	workload
standard 	of 	the
	department,
	program
	or 	board.
2. 	For
	purposes
	of
	this 	Article,
	a
	course
	as
referred
	to 	in 	Section
	A.l.
	above
	shall
	be
	called
an
	instructional
	workload
	course
	and
	shall
	be
defined
	as 	an
	instructional 	offering
	that 	is
regularly
	scheduled, 	requires
	significant
academic
	preparation 	outside 	the
	class
	by
	the
instructor,
	and 	meets
	a 	minimum
	of
	three
	(3)
hours 	per
	week.
3.	
It
	is
	recognized
	that
	some
	instruction
	does 	not
fit
	the
	definition
	of
	an
	instructional
	workload
course
	as
	defined 	in 	Section A.2. 	above.
Examples
	of
	instructional 	offerings
	which 	do
	not
conform
	to 	the 	definition 	in 	Section A.2. 	above
are 	laboratory 	supervision, 	supervision 	of
teaching
	assistants, 	studio 	instruction,
	and
clinical 	instruction.
	The
	University 	shall
determine 	whether
	a
	course 	conforms
	to 	the
definition 	of
	an
	instructional
	workload 	course 	in
4

Section
	A.2.
	above,
	and
	shall 	establish
	the
equivalencies 	for 	the
	instructional 	offerings
which
	do
	not
	conform
	to 	the
	definition
	of
	an
instructional
	workload
	course. 	Equivalencies 	for
these
	instructional
	offerings
	will
	be
	defined
proportionate 	to 	the
	instructional
	workload
course
	as
	defined
	in
	Section
	A.2.
	above.
5.	
In 	determining
	the
	relative
	workload
	value 	of
instructional
	offerings
	and
	course
	equivalencies,the 	University
	shall
	consider 	the
	instructional
and
	evaluation
	methods 	employed,
	the 	nature
	of
the 	courses 	assigned, 	the 	preparations 	required,the
	number
	of
	students
	expected
	to
	enroll,
	and
the
	availability
	of 	support
	employees.
	In
addition, 	the 	University
	may
	consider
	other
factors.
6.	
In 	determining
	workload,
	the 	University
	shall
consider 	other 	duties 	that
	have 	been
	assigned.
7.	
Workload
	values 	of
	instructional 	offerings
	and
course 	equivalencies
	based
	upon
	the 	provisions
	of
this
	section
	shall
	be
	established
	for
	each
department,
	program
	or 	board.
	Workload
	values,
by
	department,
	will
	be
	forwarded
	to 	the
	UC/AFT 	by
February
	1,
	1987,
	The 	UC/AFT
	will
	be
	notified
	of
any
	changes.
	At
	the
	time
	of
	appointment
	the
faculty/instructor
	in 	the
	unit 	will
	be
	informed
of
	the 	applicable
	workload
	values 	in
	effect 	at
the 	time.
B.
	Consultation
Faculty/instructors 	in 	the
	unit
	may
	consult
	by
providing
	written
	or
	oral
	comments 	and
	suggestionsregarding
	workload
	values 	to
	their
	departments.
During
	April
	1987 	each
	campus 	upon
	request,
	will
	hold
a
	meeting 	with 	the
	UC-AFT
	to 	discuss
	any
	workload
issues 	they
	may
	wish
	to
	raise.
F.
	Effective
	Date
1.	
Any
	workload 	commitments 	made
	prior 	to 	July 	1,1986 	or 	the 	execution 	of
	this
	Memorandum
	ofUnderstanding, 	whichever
	is 	later, 	shall
	be
honored 	for 	the 	duration 	of 	the
	commitment.
5

2.	
The
	provisions
	of
	this
	Article 	will
	become
effective
	no
	later
	than 	January
	1,
	1987.
G.
	Grievability
	and
	Arbitrability
1.	
Grievability 	shall
	be
	limited 	to 	the 	procedural
applications
	of
	this
	Article
	and
	not
	to
	theestablishment
	of
	instructional
	workload
	standards
or
	workload
	values
	of
	instructional 	offerings
	or
course 	equivalencies
	as
	determined
	by
	the
University.
	In
	the 	event
	that
	a
faculty/instructor
	in
	the
	unit
	believes
	that
	the
workload
	that
	has 	been
	assigned
	is
	in
	violation
of
	the
	workload
	values
	established
	pursuant 	toSection
	A.7.
	for 	the
	department,
	program
	or
board,
	the
	faculty/instructor
	in 	the
	unit
	shall
perform
	the
	duties
	as
	assigned
	and
	may
	pursue 	the
issue
	through
	the 	grievance 	procedure
	as
specified
	in
	Article
	XX.XIII.
	Grievance
	Procedure.
2.	
The
	provisions
	of
	this
	Article
	are
	not
	subject
	to
Article
	XX.XIV
	Arbitration.
The
	Charging
	Party
	claims
	that
	the
	UCSD
	departed
	from
	these
provisions 	of 	the
	MOU
	by
	setting
	an
	inflexible
	courseload 	of
nine
	and 	by
	ruling
	that
	all
	writing 	courses, 	despite
differences
	from 	one
	college 	to 	another, 	are
	not 	the 	equivalent
of
	one
	instructional
	workload
	course.
	The
	University 	contends
it
	retained 	the
	right,
	through
	bargaining, 	to
	set
	the
	workload
at
	any
	number 	up
	to
	a 	maximum
	of 	nine
	instructional
	workload
courses
	and
	according 	to 	the
	MOU,
	only 	the 	University
	can
determine 	whether
	any
	course
	was
	equivalent 	to
	one 	(1)
instructional
	workload
	course.
6

III.
	FACTUAL
	BACKGROUND
A.
	The
	Unit
The
	UCAFT
	is
	the 	exclusive
	representative
	of
	a
	unit
(Unit
	18)
	of
	non-academic
	senate
	instructional
	employees.
Prior
	to 	the
	MOU
	in 	question,
	the
	members
	of
	the
	unit
	had
various
	titles,
	including,
	inter 	alia, 	visiting
	lecturer
	and
adjunct
	lecturer.
	After 	the
	MOU,
	the
	titles
	were
	unified 	into
the
	single
	term
	"lecturer."
In 	the
	pre-MOU
	era,
	most
	Unit
	18 	members
	held
	titles
	that
did 	not
	come
	with,
	nor
	lead
	to, 	security
	of
	employment.
Instead,
	they
	were
	usually
	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.
Unlike
	"regular" 	or 	"ladder-rank"
	faculty, 	lecturers
	had
	no
voice 	in 	the
	University's
	Academic
	Senate,
	a
	body
	that
	has
	been
delegated
	significant
	powers 	by
	the
	Regents 	over
	policies 	in
the 	areas
	of 	courses
	and
	curricula.
	In
	addition,
	whereas
department 	chairpersons
	have
	the
	final
	decision
	over 	the
workload 	of
	regular 	faculty 	(in 	consultation
	with
	that
department's 	faculty
	members),
	lecturers'
	workloads 	were
subject 	to
	final
	approval
	by
	a
	dean
	or 	equivalent 	counterpart
within 	the 	University 	administration. 	Similarly, 	the 	authority
over 	the
	appointment
	(hiring) 	of
	a
	lecturer 	rested 	with
	a
	dean
or
	a
	vice 	chancellor.
7

PERB
	initially
	gave
	lecturers
	bargaining
	unit
	status
	in
1984.
	They
	entered
	into
	their
	first
	collective
	bargaining
agreement 	about 	June
	1986.
B. 	The
	Prior
	Workload
	Procedures
At
	UCSD,
	the 	topic
	of
	lecturer
	courseload
	has 	been
	a
	source
of
	ongoing
	controversy 	since
	at 	least
	1980 	when
	Vice
	Chancellor
John
	Miles 	promulgated
	a
	directive 	that
	a
	full-time
	lecturer
should 	teach 	nine 	courses.
	The
	conflict 	pitted
	departments
	and
department
	heads
	(or
	program
	heads)
	against 	vice-chancellors
and
	deans
	attempting 	to
	carry
	out
	the
	directives
	of
	their
(deans)
	superiors.
Donald
	Wesling, 	chairman 	of
	the
	department 	of
	literature
	at
UCSD
	and
	a
	long-time
	member
	of 	the 	department's
	faculty,
testified
	that
	his
	department
	had
	taken
	a
	consistent 	position
that
	a
	nine-course
	workload
	for
	lecturers
	was
	excessive.
	Allan
Kaprow,
	UCSD
	art
	department
	faculty
	member
	for
	14
	years
	and
current 	chairperson,
	testified
	that 	his
	department 	opposed
	the
nine-course 	load
	from
	its
	inception
	on
	several 	bases.
According
	to
	Kaprow,
	the 	department 	"accepted 	the
	mandate
	with
severe 	reservations."
	The
	history
	department,
	now
	chaired
	by
Michael
	Parrish,
	expressed 	to 	the 	vice-chancellor 	that 	in
	its
8

view, 	that 	department's 	standard 	lecturer 	load 	was
six- 	courses, 	not 	nine. 2 Vice-chancellor 	Harold 	Ticho,
Miles' 	successor, 	rejected 	that 	view 	and 	insisted 	on 	a
nine-course, 	campus-wide 	standard. 	Each 	of 	the 	dissenting
departments 	continued 	to 	adhere 	to 	its 	position, 	but
reluctantly 	complied 	with 	the 	vice-chancellor's 	office's
directive.
The 	vice-chancellors 	and 	departments 	objecting 	to 	the
nine-course 	requirement 	lived 	in 	an 	"uneasy 	peace" 	for 	years
before 	the 	MOU. 	This 	was 	possible 	because 	certain 	"exceptions"
enabled 	department 	heads 	to 	devise 	means 	of 	justifying 	a 	lower
workload. 	These 	exceptions 	were 	contained 	in 	the 	Campus'
Policy 	and 	Procedure 	Manual 	(PPM), 	and 	allowed 	the 	number 	of
courses 	required 	to 	be 	taught 	by 	full-time 	lecturers 	to 	be 	less
than 	nine 	under 	any 	of 	the 	following 	circumstances:
a. 	For 	lecturers 	teaching 	classes 	with 	250 	or 	more
students;
b. 	For 	appointees 	teaching 	the 	courses 	for 	the 	first 	time;
c. 	For 	certain 	courses 	(e.g., 	laboratory 	courses)
requiring 	more-than-normal 	contact 	hours.
Some 	departments 	"stretched" 	these 	exceptions 	in 	order 	to
accomplish 	a 	lower 	teaching 	load. 	For 	example, 	chairperson
Michael 	Schudson 	had 	to 	"invent" 	some 	new 	courses 	in 	order 	to
2 	The 	record 	indicates 	that 	other 	departments 	shared 	the
view 	of 	the 	excessiveness 	of 	the 	nine-course 	standard.
9

have
	lecturer
	Esteban
	Diaz
	reappointed 	for
	a
	subsequent
full-time
	term
	to 	teach
	seven
	courses.
	Diaz 	would
	thus
	be
eligible
	for
	a
	lower
	courseload
	under
	exception
	"b"
	above,
	in
his
	first
	and
	subsequent
	years.
	In
	other
	departments,
	such 	as
history,
	almost
	all
	appointments
	were
	for
	one-year
	terms
	or
less,
	with
	few
	cases 	involving
	the
	reappointment 	of
	lecturers
to 	teach
	history
	courses.
	As 	a
	practical
	matter, 	the
	vast
majority
	of
	lecturers 	qualified
	for
	a
	less-than-nine
	courseload
standard
	under
	the
	first
	exception.
	Although
	some
	witnesses
could 	not
	recall
	whether
	the 	nine-courseload 	standard
	was
enforced
	in
	some
	departments, 	the 	record
	indicates 	that
	the
vice-chancellor's 	office
	enforced
	the
	requirement
	consistently,
and
	on
	a
	campus-wide
	basis,
	incorporating 	the
	above
	exceptions.
Those
	departments 	seeking 	exceptions 	to 	the 	nine-course
requirement
	accomplished
	a
	lower
	courseload
	by
	giving
	extra
value 	to 	courses
	being
	taught
	by
	lecturers
	for 	the
	first
	time
or
	for
	courses 	with
	heavy
	enrollments 	or
	for 	those 	requiring
	a
great
	deal 	of 	student 	contact
	hours.
	For 	example,
	a
	newly
hired
	lecturer's
	courses
	might 	be 	weighed
	at 	1.5, 	enabling
him/her 	to
	effectively
	teach
	a 	maximum
	of
	six 	classes 	in 	the
academic
	year
	at 	full-time.
In
	some
	departments
	and 	academic
	units,
	however,
	the
nine-course 	standard 	actually
	ended
	up
	equalling 	twelve
courses.
	This
	resulted
	from
	administrative 	decisions 	that
	gave
10

some 	lecturer 	courses 	a 	fraction 	of 	the 	value 	of 	a 	course, 	such
as 	.75 	of 	a 	course.
The 	final 	authority 	to 	grant 	exceptions 	to 	the 	standard
rested 	with 	the 	vice-chancellor 	of 	academic 	affairs 	in 	the
initial 	years 	and 	later 	with 	the 	deans. 	Departments 	and
programs, 	through 	the 	chairpersons, 	developed 	the
recommendations, 	but 	possessed 	no 	final 	approval 	authority 	in
this 	regard.
C. 	The 	Negotiations
The 	negotiations 	resulting 	in 	the 	MOU 	at 	issue 	commenced 	in
the 	spring 	of 	1984 	and 	concluded 	on 	about 	the 	first 	day 	of 	June
1986. 	Marde 	Gregory 	was 	the 	chief 	negotiator 	for 	the 	UCAFT 	and
Robert 	Bickal 	for 	the 	University. 	Although 	the 	Union
introduced 	workload 	as 	a 	separate 	article 	during 	the 	initial
months 	of 	bargaining 	(October 	1984), 	there 	was 	little, 	if 	any,
discussion 	on 	that 	topic 	until 	the 	spring 	of 	1986. 	Bickal
characterized 	the 	subject 	of 	workload 	as 	"the 	last 	big 	issue
that 	[the 	parties] 	had 	to 	get 	over". 3
Prior 	to 	these 	negotiations, 	there 	was 	considerable
variation 	in 	lecturer 	workloads 	from 	campus 	to 	campus 	and 	from
department 	to 	department. 	In 	addition, 	there 	was 	no 	formal,
3 	Earlier, 	the 	parties 	had 	reached 	a 	tentative 	agreement
on 	a 	management's 	rights 	article 	that 	touched 	on 	workload 	in 	a
general 	way. 	In 	reaching 	that 	agreement, 	however, 	both 	sides
contemplated 	later 	negotiations 	on 	a 	comprehensive 	workload
provision which, 	if 	agreed 	to, 	would 	modify 	the 	management's
rights 	article.
11

comprehensive
	set
	of
	criteria
	which
	the 	University
	could 	use
	to
give 	courses
	a
	certain
	"workload
	value".
Marde
	Gregory
	insisted
	on
	the
	inclusion
	of
	a
	comprehensive
workload
	provision 	in
	the
	MOU.
	One
	of
	the
	Union's 	goals
	was
	to
negoiate
	a 	maximum
	courseload
	provision
	as
	a
	guarantee
	that
	its
constituents
	would
	not
	be
	overloaded 	with
	work.
	The
	UCAFT
	was
also
	concerned
	about
	where
	and 	by
	whom
	the
	decision
	would 	be
made
	on
	the 	appropriateness
	of 	one"s 	workload.
	The
	Unionwanted
individual 	faculty 	unit
	members
	to
	have
	some
	rights
	to
	prior
consulation 	in
	the
	matter.
The
	University's
	team
	was
	interested 	in
	preserving
	a
	degree
of
	autonomy
	enjoyed
	by
	each 	of
	the
	campuses
	in 	the
	system. 	In
particular,
	they
	wanted
	to 	preserve 	the
	flexibility
	that
enabled
	their
	campus
	subdivisions 	(departments,
	programs 	and
boards)
	to
	have
	varying
	workload
	standards,
	tailored
	to 	the
instructional
	and
	academic 	needs
	of 	those 	subdivisions.
Bickal's 	strategy
	was
	to
	resist
	bargaining
	away
	the
University's 	then-existent 	internal 	delegations
	of
	authority.
He
	felt
	that
	it
	was
	outside 	the
	scope 	of
	representation 	to
negotiate
	over 	the
	identity
	of
	who
	exercised 	authority
	on
behalf 	of 	"the 	University". 	Bickal
	testified
	that 	his 	intent
was
	as 	follows:
...
	I
	did 	not 	have 	any
	realistic
	hope
	of
bargaining
	an
	unlimited 	right 	to 	establish
any 	kind 	of 	workload
	we
	wanted, 	but
	what
	I
did
	want
	to 	preserve
	was
	our
	ability 	to,
within 	the 	limits 	that
	were 	agreed
	to,
12

establish 	what 	that 	workload 	would 	be 	...
. 	. 	. 	whatever 	we 	agreed 	to 	as 	the 	standard
maximum workload 	that 	they 	[lecturers] 	had,
that 	the 	University 	had 	flexibility 	to
establish 	workloads 	as 	it 	saw 	appropriate 	so
long 	as 	they 	didn't 	exceed 	whatever 	we
determined 	to 	be 	the 	maximum.
The 	Union's 	initial 	workload 	proposal 	of 	October 	1984 	set
the 	maximum 	full-time 	lecturer 	workload 	at 	five 	courses 	per
year 	on 	the 	quarter 	system 	(3 	quarters 	per 	academic 	year) 	or
seven 	courses 	over 	two 	academic 	years 	on 	the 	semester 	system.
The 	proposal 	defined 	a 	course 	as 	a 	class 	that 	meets 	no 	more
than 	250 	minutes 	per 	week. 	Multiple 	sections 	of 	a 	course 	would
be 	counted 	as 	multiple 	courses. 	Laboratory 	and 	studio 	classes
would 	equal 	one 	course 	per 	lab 	or 	studio.
The 	University's 	first 	counterproposal 	specified 	that 	a
full-time 	unit 	member 	would 	"customarily" 	carry 	nine
"instructional 	workload 	courses" 	over 	three 	quarters 	or 	six
instructional 	workload 	courses 	over 	two 	semesters, 	"or 	the
equivalent." 	It 	went 	on 	to 	state 	that 	the 	University 	had 	sole
discretion 	to 	raise 	or 	lower 	the 	workloads 	based 	upon 	standards
"of 	the 	department, 	program 	or 	board," 	but 	that 	the 	workloads
shall 	not 	exceed 	12 	courses 	over 	3 	quarters 	or 	9 	courses 	over 	2
semesters.
That 	proposal 	defined 	an 	"instructional 	workload 	course"
(IWC) 	as 	an 	instructional 	offering 	that 	is 	regularly 	scheduled,
requires 	significant 	academic 	preparation 	outside 	the 	class 	by
the 	instructor, 	and 	meets 	a 	minimum 	of 	three 	hours 	per 	week.
13

A
	subsequent
	provision
	delineated
	the 	workload-setting
procedure 	for 	those 	courses
	that
	did
	not
	"fit"
	the
	IWC
definition.
	Examples
	of
	such
	courses
	-
	laboratory 	supervision,
supervision
	of
	other 	teachers
	(e.g.,
	teacher's 	assistants
(TA's,)) 	student 	teachers,
	etc.),
	studio
	instruction,
	clinical
instruction,
	field-work 	coordination
	and
	field-work 	supervision
-
	were
	listed.
	The
	University
	would
	identify
	such
	courses
	that
did 	not
	"fit"
	the
	IWC
	definition
	and
	establish
	an
"eguivalency", 	in 	proportion 	to
	the
	IWC.
	For 	example,
	such
	a
course
	may
	be
	given
	a
	value 	of
	.50
	IWC
	or
	1.50
	IWC,
	depending
on
	a
	list
	of
	factors
	-
	instructional
	methods 	employed,
	nature
of
	course, 	extent
	of 	necessary
	preparation,
	number
	of
	students,
etc.
	-
	delineated 	in
	paragraph
	A4
	of 	the 	proposal.
During
	bargaining,
	Bickal 	explained
	that
	he
	used
	the
	term
"customary workload"
	to 	recognize
	a
	degree 	of
	workload
variation.
	He
	said 	the
	IWC
	was
	a
	device
	for
	measurement,
	a
benchmark
	by
	which
	other
	instructional 	situations
	would
	be
weighed. 	Bickal 	described 	the
	IWC
	as
	the
	"traditional,
conventional,
	academic
	course" 	as 	compared
	to 	things
	such 	as
"individual
	oboe
	[instrumental
	music]
	instruction."
	The 	number
of 	customary
	and
	maximum
	courses
	would 	be
	expressed 	in
	terms 	of
an
	IWC
	(the
	IWC
	equalling 	1.0 	value).
Bickal 	also 	explained
	that 	the 	those 	types 	of
	instructional
offerings
	not
	fitting
	the
	IWC
	definition
	could 	vary 	in 	value
from
	discipline 	to 	discipline
	and 	from 	department 	to
department. 	Thus, 	the 	evaluation 	of 	courses 	not 	conforming 	to
the 	definition 	of
	IWC
	would 	be 	"a 	departmental 	matter."
14

In 	explaining 	paragraph A4, 	which 	described 	factors 	to 	be
considered 	in 	reaching 	a 	workload 	value, 	Bickal 	stated 	that 	the
provision 	would 	allow 	the 	University 	to 	deviate 	from 	the 	1.0
value 	in 	order 	to 	equitably 	assess, 	for 	example, 	courses 	with
very 	large 	enrollments, 	time-consuming 	evaluations, 	and
innovative 	instruction.
After 	Bickal's 	presentation, 	Gregory 	raised 	several
concerns. 	First, 	regarding 	paragraph A6, 	she 	asked 	who 	would
establish 	the 	workload 	values. 4 Bickal 	replied 	that 	they
would 	be 	established 	"by whatever 	the 	decision-making 	process
is 	within 	the 	department, 	program 	or 	board. 	It 	is 	within 	the
contemplation 	and 	jurisdiction 	of 	the 	department, 	program 	or
board." 	Seeking 	further 	clarification, 	Gregory 	asked 	whether
"for 	each 	department" 	really 	meant 	"by 	each 	department".
Bickal 	replied 	that 	he 	wanted 	to 	be 	sure 	before 	responding.
Gregory 	also 	asked 	who 	he 	meant 	by 	"the 	University" 	in
paragraph 	A3, 	where 	the 	language 	seemed 	to 	indicate 	that 	"the
University," 	at 	its 	sole 	discretion, 	would 	determine 	whether 	a
course 	conforms 	to 	the 	IWC 	definition. 	Bickal 	stated 	that 	he
would 	consult 	with 	his 	team 	before 	responding.
4 	The 	pertinent 	portion 	of 	A6 	read: 	"Workload 	values 	of
instructional 	offerings 	and 	course 	equivalencies 	... 	shall 	be
established 	for 	each 	department, 	program 	or 	board." 	[Emphasis
added.]
15

Gregory 	asked
	several 	other
	questions
	about
	the
	proposal's
salary
	impact,
	about
	how
	workload
	would 	be
	determined
	and
	who
was
	meant
	by
	"the 	University" 	in
	paragraphs
	Al,
	A4
	and
	AS.
	The
University's
	bargaining
	team
	caucused
	to 	consider 	Gregory's
questions.
When
	the
	parties
	returned
	Bickal
	gave
	a
	narrative
	answer
	to
those
	inquiries.
	He
	stated 	that
	the
	University's 	authority
	to
take 	action
	was
	delegated
	down
	from
	the
	Regents
	and
	that
	those
delegations
	would
	vary.
	He
	stated 	that
	it
	was
	"our"
expectation
	that
	equivalence
	workload
	policies
	"for"
departments
	would 	be
	"typically,
	but 	not
	necessarily
universally"
	developed
	by
	the
	departments
	and
	submitted
	up
	the
line
	to
	a
	dean
	and
	perhaps
	beyond
	that.
	He
	added
	that 	there
would 	be 	an
	effort
	to 	achieve
	equity
	and,
	therefore,
	some
	level
of 	review
	would 	be
	needed.
	He
	explained
	that
	departments
	would
have
	an
	important
	role
	("jurisdiction") 	in
	developing
	these
policies,
	with
	some
	general 	policy
	direction
	from
	above,
	but
would
	not
	have 	"untrammeled,
	unilateral
	power"
	in 	that
	regard.
Bickal
	cited
	an 	example
	at
	the
	Santa 	Clara
	campus, 	where 	he
envisioned
	that
	the
	dean 	of 	humanities
	would 	be
	closely
involved 	in 	monitoring 	workload
	values
	and
	equivalencies.
Bickal 	proceeded 	to 	discuss 	the 	proposal's
	intended 	impact
on
	instructors
	of 	courses
	that
	did 	not 	conform
	to 	the
	IWC
definition.
	For
	unit
	members
	teaching
	one
	highly 	specialized
course 	at 	less 	than
	full
	{100%)
	time,
	that 	course
	would 	be
evaluated
	and
	its
	workload 	value 	might 	be
	different 	than 	the
16

percentage 	of 	time 	currently 	given. 	It 	could 	result 	in 	a
higher 	or 	lower 	percentage 	of 	time 	(for 	salary 	purposes). 	The
salary 	level 	could 	be 	adjusted 	up 	or 	down 	to 	maintain 	equality
of 	salary 	with 	current 	levels.
With 	respect 	to 	the 	situation 	of 	the 	"oboe 	teacher," 	Bickal
stated 	that 	those 	courses 	were 	currently 	assessed 	at 	a
percentage 	of 	time 	which was 	related 	to 	the 	number 	of 	students
and 	the 	amount 	of 	time 	required 	to 	teach 	the 	course. 	He 	added
that 	that 	arrangement 	would 	continue 	as 	it 	then 	existed.
With 	regard 	to 	laboratory 	courses, 	Bickal 	expressed
recognition 	that 	there 	were 	different 	kinds 	of 	lab 	courses,
some 	were 	lab 	only 	and 	some 	(e.g., 	electron 	microscopy) 	were
all 	instruction 	although 	occurring 	within 	a 	lab. 	As 	to 	those
labs, 	each 	would 	be 	evaluated 	and 	the 	differences 	assessed, 	but
uniformity would 	not 	be 	anticipated.
Finally, 	addressing 	the 	other 	hypotheticals 	of 	non-IWC
courses, 	Bickal 	stated 	that 	some 	courses, 	like 	dance
instruction, 	might 	be 	equivalent 	to 	a 	traditional 	course 	and
some 	studio 	instruction 	might 	be 	valued 	at 	half 	a 	course. 	The
control, 	he 	explained, 	was 	its 	relation 	to 	the 	instructional
workload 	course. 	To 	illustrate 	the 	instructional 	workload
course, 	Bickal 	gave 	an 	example 	of 	a 	lecture 	class 	in 	Chaucer
which 	meets 	Mondays, 	Wednesdays 	and 	Fridays 	for 	50 	minutes
(each) 	"with 	32 	shining 	faces, 	a 	paper, 	mid-term 	and 	a 	final."
He 	concluded 	that 	"that's 	a 	course 	[IWC] 	and 	there's 	little
fiddling 	with 	that."
17

Gregory
	expressed
	difficulty
	with
	not
	knowing
	who
	would
dictate
	individual
	unit
	members'
	workloads 	under
	the 	proposal.
Another
	problematic 	area
	was
	the
	absence
	of
	a
	mechanism
	to
prevent 	the 	University
	from
	abandoning
	the
	"customary" 	workload
and
	using 	the
	maximum
	as
	the 	standard
	-
	i.e.,
	that
	the
	maximum
could
	become
	the
	customary
	load.
Gregory 	voiced
	dissatisfaction
	with
	the
	proposal's
	leaving
open
	the
	possibility
	that
	workload
	decisions
	could
	be
	made
	via
a
	recommendation
	to 	the
	administration,
	distant
	from
	individual
unit
	members,
	without
	a
	vehicle
	to 	challenge 	the
	decisions
	made
at 	those
	remote
	levels.
Bickal 	reassured
	Gregory
	that
	a
	bilateral
	agreement
contained 	enforceable 	standards,
	that
	within
	academic
departments
	workload
	levels
	would 	be
	rational
	and
	equitable
even 	though
	there
	could
	be
	variations
	between
	departments,
	and
that
	workload
	determinations
	could 	not
	be
	arbitrary.
	He
	said
it
	was
	a
	mistake 	to
	assume
	there
	would 	be 	an
	onerous
	increase
in
	workload. 	Bickal 	also
	stated 	that
	he
	did 	not
	envision
individual 	lecturer
	workload
	determinations
	"going
	up
	the
hierarchical
	route"
	from
	departments 	to
	deans 	or 	provosts
	and
to 	vice-chancellors. 	Nevertheless,
	Gregory
	insisted
	on 	more
concrete
	language
	on
	the
	workload
	issues.
5
5	
Although
	there
	was 	no
	evidence
	that 	the 	University
expressed
	its
	reasons 	for 	rejecting 	the 	Union's
	initial
proposal, 	Bickal
	testified 	that
	he
	believed
	its
	consultation
provisions
	were
	inappropriate
	and
	that
	he 	had 	no
	interest 	in
modifying 	the 	existent 	decision
	making 	process 	viv-a-visworkload. 18

The
	parties
	met
	again
	on
	the
	following
	day,
	May
	23,
	1986.
Gregory
	began
	the 	discussion
	by
	questioning 	the
	University's
language
	describing
	a
	customary
	and
	a 	maximum
	workload.
	She
advised 	Bickal,
	after
	reviewing
	statistical
	data,
	that
	only
	35%
of
	the 	unit
	would
	fall
	within 	the
	customary
	norm
	of 	nine
courses,
	and
	the
	"customary
	courseload"
	was
	therefore
misleading.
Bickal
	responded
	that
	he
	expected
	most
	workloads
	to
	remain
at 	current 	levels
	under
	his 	proposal, 	but
	that
	there
	would 	be
some
	adjustments
	"at 	the
	margins"
	-
	those
	entities
	where
highest
	and
	lowest 	workloads
	currently 	prevailed.
Gregory
	also
	questioned 	Bickal
	as
	to
	where
	a
	unit
	member
could
	direct
	input 	for
	setting
	workload
	eguivalencies 	for
courses
	such 	as
	oboe
	instruction,
	fine
	arts, 	etc.
	Bickal
indicated 	that
	he 	would
	respond
	to
	that
	concern
	at
	a
	later
time. 	After
	a
	caucus, 	the
	Union
	made
	a 	new
	proposal,
	which
read, 	in 	pertinent 	part,
	as
	follows:
A.
	Instructional
	Workload, 	Course
Definition
	and
	Equivalencies
1.	
The
	full
	time
	(100%)
	instructional
workload
	for
	faculty/instructors	
in	
the 	unit
for
	an 	academic
	year
	shall
	not 	exceed 	nine(9)
	courses 	over
	three
	(3)
	quarters 	or
	six
(6) 	courses 	over
	two
	(2)
	semesters 	or 	the
equivalent. 	Instructional
	workloads
	may
	be
lower 	based 	upon
	the 	instructional
	workload
standard 	adopted 	by
	the 	department, 	program,
or 	board
	in 	consultation 	with
faculty/instructor(s) 	in
	each
	unit.
19

2. 	. 	.. 	a 	course 	as 	referred 	to 	in 	A.l.
above 	shall 	be 	called 	an 	instructional
workload 	course 	and 	shall 	be 	defined 	as 	an
instructional 	offering 	that 	is 	regularly
scheduled, 	requires 	academic 	preparation
outside 	the 	course 	by 	the 	instructor 	and
meets 	a 	minimum 	of 	three 	(3) 	hours 	per 	week.
3. 	It 	is 	recognized 	that 	some 	instruction
does 	not 	fit 	the 	definition 	of 	an
instructional 	workload 	course 	as 	defined 	in
A.2. 	above. 	The 	University, 	in 	consultation
with 	the 	faculty/instructor(s) 	in 	the 	unit,
shall 	determine 	whether 	a 	course 	conforms 	to
the 	definition 	of 	an 	instructional 	workload
course. 	Equivalencies 	for 	these
instructional 	offerings 	will 	be 	defined
proportionate 	to 	the 	instructional 	workload
course 	as 	defined 	in 	A.2. 	above.
4 •
5. 	In 	determining 	the 	relative 	workload
value 	of 	an 	instructional 	offering 	and
course 	equivalencies, 	the 	University 	shall,
in 	consultation 	with 	faculty/instructor(s),
makes 	its 	determination 	based 	upon
pedagogical 	factors 	including, 	but 	not
limited 	to, 	instructional 	and 	evaluation
methods 	employed, 	the 	nature 	and 	level 	of
the 	courses 	being 	taught, 	the 	extent,
nature, 	and 	number 	of 	the 	preparations
required, 	the 	number 	of 	students 	expected 	to
enroll, 	the 	supervision 	of 	other 	teachers,
the 	availability 	of 	instructional 	and
evaluation 	support 	employees 	(teaching
assistants 	and 	readers), 	the 	instruction 	and
supervision 	of 	laboratories 	and 	studio
courses, 	independent, 	field, 	tutorial, 	or
supervised 	instruction, 	and/or 	development
of 	specialized 	instructional 	materials, 	and
instructional 	practices 	to 	meet 	curricular
requirements.
6. 	In 	determining 	workload, 	the
University, 	in 	consultation with
faculty/instructors 	in 	the 	unit, 	shall
consider 	other 	duties 	that 	have 	been
assigned.
20

7. 	Workload 	values 	of 	instructional
offerings 	and 	course 	equivalencies 	based
upon 	the 	provisions 	of 	this 	section 	shall 	be
established 	in 	consultation 	with
faculty/instructor(s) 	in 	the 	unit 	for 	each
department, 	program, 	or 	board ....
[Emphasis 	added]
In 	presenting 	the 	proposal, 	Gregory 	explained 	that 	the
Union 	had 	eliminated 	use 	of 	"customary workload" 	because 	it 	was
reflective 	of 	only 	35% 	of 	the 	unit. 	Instead, 	only 	a 	maximum
workload 	was 	included, 	along 	with 	consultation 	rights 	for 	unit
instructors. 	She 	said 	that 	the 	University's 	need 	for
flexibility 	had 	already 	been 	addressed 	in 	paragraphs 	3-6. 	The
University 	called 	a 	caucus 	to 	prepare 	a 	response.
There 	was 	little 	discussion 	of 	the 	Union's 	proposal 	after
the 	caucus, 	except 	in 	connection with 	the 	presentation 	of 	the
following 	counterproposal 	(quoted 	in 	pertinent 	part) 	by 	the
University.
1. 	The 	full-time 	(100%) 	instructional
workload 	standard 	for 	unit 	members 	for
an 	academic 	year 	shall 	not 	exceed 	ten
il..Ql 	instructional 	workload 	courses 	over
three 	(3) 	quarters 	or 	seven 	(7)
instructional 	workload 	courses 	over 	two
(2) 	semesters, 	or 	the 	equivalent.
Instructional 	workloads 	may 	be 	lower,
based 	upon 	the 	instructional 	workload
standard 	of 	the 	department, 	program 	or
board.
2 	.... 	a 	course 	... 	in 	A.l. 	above
shall 	be 	called 	an 	instructional
workload 	course 	and 	shall 	be 	defined 	an
an 	instructional 	offering 	that 	is
regularly 	scheduled, 	requires
significant 	academic 	preparation 	outside
the 	class 	by 	the 	instructor, 	and 	meets 	a
minimum 	of 	three 	(3) 	hours 	per 	week.
21

3.	
It
	is
	recognized
	that
	some
	instruction
does
	not
	fit
	the
	definition
	of
	an
instructional
	workload
	course
	as
	defined
in
	A.2.
	above.
	Examples
	of
instructional
	offerings
	which
	do
	not
conform
	to 	the
	definition
	in
	A.2.
	above
are
	laboratory 	supervision, 	supervision
of 	teaching
	assistants,
	studio
instruction,
	and
	clinical
	instruction.
The
	University
	shall 	at
	its
	sole
discretion
	determine
	whether
	a
	course
conforms
	to 	the
	definition
	of
	an
instructional
	workload
	course
	in
	A.2.above,
	and
	shall 	establish
	the
equivalencies 	for
	the
	instructionalofferings
	which
	do
	not
	conform
	to 	the
definition
	of
	an
	instructonal
	workload
course
..
4 •
5.	
In 	determining
	the
	relative
	workload
value 	of
	instructional 	offerings
	and
course
	eguivalencies, 	the 	University
	may
take 	into
	account 	such
	factors
	as
	the
instructional
	and
	evaluation
	methods
employed,
	the 	nature 	of 	the 	coursesbeing
	taught, 	the 	preparations 	required,
the
	number
	of
	students
	expected
	to
enroll,
	and
	the
	availability
	of 	supportemployees.
6 •
7. 	Workload
	values 	of
	instructionalofferings
	and
	course 	eguivalencies
	basedupon
	the 	provisions 	of
	this
	section
shall
	be
	established 	for
	each
department,
	program
	or 	board. 	Unit
members 	may
	provide
	written
	comments 	and
suggestions 	regarding
	workload 	values 	to
their
	departments
....
F.
	Grievability
Grievability 	shall
	be
	limited 	to 	the
procedural 	applications 	of
	this 	Article
	and
not 	to 	instructional
	workload 	standards 	or
22

workload 	values 	of 	instructional 	offerings
or 	course 	eguivalencies 	as 	determined. 	In
the 	event 	that 	a 	unit 	member 	believes 	that
the 	workload 	that 	has 	been 	assigned 	is 	in
violation 	of 	the 	workload 	values 	established
pursuant 	to 	A.7. 	for 	the 	department, 	program
or 	board, 	the 	unit 	member 	shall 	perform 	the
duties 	as 	assigned 	and 	may 	pursue 	the 	issue
through 	the 	grievance 	procedure 	as 	specified
in 	Article 	___ , 	Grievance 	Procedure.
In 	presenting 	the 	latest 	proposal, 	Bickal 	highlighted 	areas
of 	change 	- 	such 	as 	the 	acceptance 	of 	a 	maximum 	standard 	with 	a
modest 	change 	in 	numbers 	from 	twelve 	to 	ten 	- 	but 	did 	not
detail 	the 	rationale 	for 	each 	one. 	In 	testimony, 	he 	explained
that 	the 	term 	"adopted 	by" 	{i.e. 	the 	department, 	etc.) 	was
deleted 	based 	upon 	his 	stated 	position 	that 	workload 	standards
would 	be 	established 	through 	a 	process, 	and 	not 	limited 	to 	the
department. 	The 	ultimate 	authority 	to 	set 	these 	standards, 	he
added, 	rested 	with 	the 	University 	and 	it 	{University's
bargaining 	team) 	would 	not 	specify 	that 	it 	was 	the
responsibility 	of 	the 	department. 	Bickal 	also 	explained 	that
he 	dropped 	earlier 	proposed 	language 	in 	paragraph 	Al 	that 	said
workloads 	"may 	be 	higher" 	to 	correspond 	with 	the 	University's
abandonment 	of 	a 	12-course maximum 	and 	a 	9-course 	customary
standard. 	He 	added 	that 	it 	would 	have 	been 	nonsensical 	to 	keep
the 	entire 	phrase 	"workloads 	may 	be 	higher 	or 	lower" 	because 	in
the 	proposal's 	present 	form, 	"there was 	no 	possibility 	of 	there
being 	[a 	workload] 	higher 	than 	9". 	[Emphasis 	added]
23

The
	parties
	caucused
	after
	Bickal's 	presentation
	and
adjourned, 	without
	more
	substantive 	discussions,
	until
	the
following
	day.
On 	May
	24, 	1986,
	the
	two
	bargaining
	teams
	presented
themselves
	for
	negotiations,
	but
	no
	across-the-table
discussions
	occurred. 	Rather, 	they
	caucused
	from
	about
	ten
o'clock
	in 	the
	morning
	until
	about 	seven
	o'clock
	in 	the
evening.
	What
	occurred
	was
	a
	series
	of
	away-from-the-table
meetings
	between 	Gregory
	and
	Bickal, 	with
	periodic 	reporting 	to
the
	respective
	teams,
	for 	the
	purpose 	of
	trying
	to 	resolve 	the
differences 	in 	the
	two
	proposals
	presently
	on
	the
	table.
During
	those
	discussions,
	Bickal
	told
	Gregory
	that
	the
University
	would
	not 	agree 	to
	any
	provision
	that 	identified
	the
department 	or
	anyone
	else
	as
	the 	determiner 	of 	the
	maximum
workload.
	He
	added 	he
	could 	persuade
	his 	principals
	to 	drop
the
	maximum
	to 	nine 	courses, 	but 	only
	if
	she 	"could
	deliver"
	on
not
	designating
	who
	had
	the
	authority
	to 	determine 	workload.
Gregory
	told
	Bickal
	that
	she 	thought 	she 	could
	deliver
	on
that.
	She
	insisted,
	however,
	that
	the 	University
	remove
	the
phrase 	"sole 	discretion"
	from
	paragraph
	A3 	-
	which 	gave
	the
University 	the 	sole 	discretion 	to 	determine 	whether
	a
	course
conforms
	to 	the
	IWC
	definition
	-
	because 	she
	felt
	that
ratification
	of 	the 	contract
	would 	be
	problematical 	with
	it
present.
	There
	was
	also
	some
	debate 	over 	the 	Union's 	attempt
to 	give 	unit
	members
	the 	right 	to
	be
	consulted 	at
	each
	step
	of
the 	workload 	process.
24

Gregory
	later
	reported 	to
	her
	bargaining
	team
	that
	the
University
	would
	agree
	to
	a
	course
	load
	"cap",
	to 	"ameliorate"
the
	"sole 	discretion"
	language,
	and
	to 	include
	some
	avenue
	for
unit
	members
	to 	consult
	on
	appropriate
	workloads,
	in
	exchange
for
	agreement
	on
	the
	approximately
	12
	outstanding
	articles.
As
	a
	result
	of
	the 	discussion
	on
	May
	24,
	the
	parties
	agreed
to
	reconvene
	on
	May
	29,
	at
	which
	time
	the
	workload
	article
would
	again
	be 	on
	the
	agenda,
	along
	with
	all
	other 	outstanding
proposals.
On
	that
	latter
	date,
	the
	University
	submitted
	its
	final
workload
	proposal.
	It
	incorporated
	a
	nine 	course
	work
	load
maximum,
	but
	eliminated 	the 	Union's
	language
	that
	workload
standards
	be
	"adopted
	by
	the 	department",
	etc.
	It
	also
reflected
	the
	removal
	of 	language
	in
	previous
	University
proposals
	which 	gave
	the
	Employer
	the 	"sole 	discretion" 	to
determine
	whether
	a
	course
	conforms
	to 	the
	IWC
	definition.	
A
corresponding
	change
	was 	made
	in 	the
	grievability
	section
	which
now
	prevented
	unit
	members
	from
	grieving 	the 	University's
establishment
	of 	workload
	standards 	or
	workload
	values.
The
	Union's 	previous 	language,
	calling 	for 	individual 	unit
member
	consultation 	at
	every
	step
	of 	the
	workload
	determination
process,
	was
	not 	incorporated. 	Instead, 	the 	University
retained
	language
	it
	had 	proposed
	in
	its
	two
	earlier 	articles
(May 	23 	and
	May
	24) 	under 	paragraphs
	A7
	and 	B.
	That 	language
provided 	unit
	members 	a
	limited 	right 	to 	provide 	written 	or
oral
	comments
	to 	their
	departments 	regarding 	workload 	values.
25

The
	retained
	language
	also
	allowed
	the
	Union
	to
	convene
	a
meeting 	with
	individual
	campuses
	once
	each
	year 	to 	"discuss
workload
	issues."
This
	workload
	proposal
	was
	one
	of 	about
	11
	or
	12
	that
	were
transmitted
	to 	the
	UCAFT
	a
	the
	May 	29
	meeting. 	Bickal
	gave
	a
brief
	description
	of
	the
	status
	of
	each 	one.
	After 	pointing
out
	some
	of
	the
	latest
	changes
	in
	the
	workload
	proposal,
	he
stated
	to
	Gregory:
	"Workload
	is
	the 	linchpin.
	Our
	agreement
last
	week
	was
	if
	we
	get
	authority
	for
	this,
	the 	other
	articles,
with
	some
	discussion,
	would
	follow."
There
	was 	no
	further 	discussion 	at
	the
	table
	about
	the
meaning
	of
	the
	final
	language
	on
	workload.
	After
	a
	brief
discussion
	of
	some
	modifications 	in 	other
	articles,
	the
	parties
adjourned 	with
	an
	agreement
	to 	return
	on
	the
	following 	day.
The
	following
	morning,
	Marde
	Gregory 	approved
	the
University"s
	last
	workload
	proposal.
	It
	was
	initialled
	as
	a
tentative
	agreement
	that
	afternoon,
	along
	with 	the
	remaining
package 	of
	proposals.
	The
	arbitration 	article,
	the 	only
outstanding 	issue,
	was
	finally
	agreed
	to
	on
	either
	May
	31
	or
	on
June 	1,
	1986.
D.
	Events 	Subsequent
	To
	Negotiations
The
	terms 	of 	the
	MOU
	became
	effective
	on
	July
	1, 	1986,
except 	for 	the
	workload
	article.
	The
	provisions 	of 	the
	latter
were 	to
	be
	effective
	no
	later
	than 	January 	1, 	1987,
	in 	order 	to
allow 	each
	campus
	to 	establish 	the 	workload 	standards
	and
equivalencies. 	In 	addition, 	the
	MOU
	stipulated 	that 	unit
26

members
	who
	had
	been
	appointed
	prior
	to
	July
	1,
	1986,
	to
	work
the
	following
	term,
	would
	not
	be
	affected
	by
	the
	workload
provisions
	for 	the
	duration
	of
	the
	appointment.
	An
understanding
	was
	also
	reached
	to 	the
	effect 	that
	those
appointed
	after
	July
	1, 	but
	before 	the
	workload
	article
	went
into
	effect,
	would 	be
	appointed
	on
	the
	basis
	of
	workload
policies
	in
	effect 	prior
	to 	the 	execution 	of 	the
	MOU.
	Campuses
could,
	when
	ready,
	implement
	the
	workload
	article
	prior
	to
January
	1,
	1987,
	but 	only
	one 	campus,
	not
	UCSD,
	was
	able 	to
	do
that.
In 	the 	interim 	period, 	the 	University
	attempted
	to
	lay
	the
foundation 	for
	implementation 	of
	the
	workload
	article
	in
	two
ways.
	One
	was
	a
	program
	designed
	to
	train
	and
	inform 	academic
administrators
	on
	the
	meaning
	of 	the
	new
	MOU.
	The
	other
	was
the 	process 	of 	deciding
	what
	workloads
	would
	govern
	in
	which
departments
	and
	what 	workload
	values 	courses
	would
	have.
	Both
avenues 	were
	fraught 	with 	controversy, 	not 	only
	emanating
	from
the
	Union,
	but 	also
	from
	within 	the 	administration.
At
	UCSD,
	the
	first
	encounter 	with 	the
	new
	workload
provisions 	occurred 	over 	the 	History Department's 	attempts
(between
	May
	15,
	1986 	and
	late
	July
	1986), 	through
	Chairman
Michael
	Parrish, 	to 	reappoint
	lecturers 	Russell
	Hvolbek,
	Mary
Lou
	Locke,
	Dean
	Kingsley
	and 	Leon
	Slota.
	On May
	15, 	1986,
Parrish
	submitted
	a
	letter
	to 	Stanley
	Chodorow,
	dean 	of 	Arts
and
	Sciences,
	recommending
	that
	Locke 	be
	reappointed 	full-time
for 	the
	1986-87 	academic 	year 	to 	teach 	six 	history 	courses. 	In27

response,
	Dean 	Chodorow
	told 	Parrish
	that
	Locke
	should
	teach
more
	than
	six
	courses
	in
	order 	to
	be
	reappointed
	at
	100%
	time.
On
	June
	6, 	1986,
	after
	receiving
	a
	copy
	of 	the 	recent
	MOU,
Parrish
	wrote
	a
	strong
	letter
	of
	protest
	to
	Chodorow
	which
included 	the
	following:
I
	would
	like
	to
	set 	forth
	in
	this
	memorandum
our
	position
	on
	both
	the
	specific
	case
	of
Locke 	and
	the
	more
	general
	issue
	of
	teaching
loads
	for
	Visiting
	Lecturers 	in
	history.
The
	tentative
	agreement 	reached
	between
	the
AFT
	and
	the 	University
	states 	clearly
	in
section
	A,
	paragraph
	1
	that
	"the
	full-time
(100%)
	instructional
	workload
	standard 	for
unit
	members
	for
	an
	academic
	year
	shall
	not
exceed
	nine
	(9)
	instructional
	workload
courses
	over
	three
	(3)
	quarters
....
"Instructional
	workloads
	may
	be
	lower, 	based
upon
	the
	instructional
	workload
	standard
	of
the
	department,
	program
	or 	board."
	The
"workload
	standard" 	of
	our 	department
	for
Visiting
	Lectuers 	teaching
	a
	full
	year 	in
their
	initial
	year
	has 	been
	six
	courses,
	a
standard
	approved
	by
	the 	administration 	in
our
	three
	most
	recent 	cases:
	Dean
	Kingsley
(Japanese
	history),
	Leon
	Slota
	(Medieval)
and
	Russell
	Hvolbek
	(Early
	Modern).
	In
their
	second
	year, 	Slota
	and 	Hvolbek
	taught
seven
	courses.
	Since
	this 	will
	be
	Locke's
first
	full
	year 	of 	teaching 	in 	the
department,
	we
	believe
	she
	is 	clearly
covered
	by
	this
	provision.
	The
	six-course
load
	in 	the
	first
	year
	has 	been
traditionally 	justified
	on
	the
	grounds
	that
the 	faculty
	involved
	will
	be
	teaching
	new
courses 	for 	the
	first
	time
	on
	the
	campus 	and
that
	they 	are 	therefore 	entitled
	to 	adequate
preparation
	time
	for 	these 	courses. 	This
	is
also 	the 	case 	with 	respect 	to
	Locke
	...
In 	view
	of 	the 	tentative
	agreement 	and
	past
approval 	of 	the 	six-course 	standard 	in
history 	for 	the
	first 	full 	year,
	we
	believe
that 	to
	treat
	Locke
	otherwise
	would
	violate
the
	letter
	and
	spirit
	of 	the 	tentative
agreement
	...
28

On
	the 	general
	issue,
	we
	believe
	that
	the
question
	of 	teaching
	loads
	for
	visiting
lecturers
	should
	be
	left
	to 	the
	judgment
	of
department
	chairmen 	as
	is
	the
	case 	with
respect 	to
	all
	other
	instructional
personnel.
	Chairmen
	are
	best
	able 	to
	judge
the 	relevant 	factors
	that
	call
	for
flexibility
	in
	this
	area
	...
	We
	see
	no
reason
	why 	a
	chairman
	should
	be
	entrusted
with
	this
	task 	in 	the 	case 	of
	senior
professors
	holding
	endowed
	chairs,
	but 	not
in
	the 	case 	of
	temporary
	faculty.
	[Emphasis
in
	original.]
In
	testimony,
	Parrish 	recalled
	being
	pleased
	when
	he
	read
the
	new
	MOU
	because
	he
	believed
	it
	confirmed
	what
	the
department
	had
	been
	arguing
	for
	a
	long
	time 	about
	where
workloads 	ought
	to
	be
	determined
	-
	i.e.,
	within 	departments.
In
	a
	June 	23, 	1986,
	responsive
	letter,
	Chodorow
	wrote
	that
the
	MOU's
	language
	was
	not 	intended 	to
	make
	departments
	solely
responsible 	for
	setting 	their
	own
	workload
	policies.
	Rather,
its
	intent
	was
	to
	have 	workload
	policies 	established
	through
the 	vice-chancellor
	of
	academic
	affairs,
	and
	Vice
	Chancellor
Ticho
	had
	established
	a
	nine-course
	load
	which
	could
	be
modified 	under
	exceptions
	listed
	in
	PPM
	Section
	230-20.
6
Chodorow
	concluded
	that 	his 	decision 	regarding 	the 	teaching
load 	of
	Locke 	and 	Hvolbek would
	stand,
	and
	that
	Locke
	ought 	to
carry
	a
	nine-course 	load.
6
The
	exceptions 	are 	listed,
	supra, 	at
	page 	9.
29

Parrish
	wrote
	a
	reply
	on
	June
	25,
	indicating
	that
	as
chairman,
	he
	continued
	to
	reject
	the 	nine-course 	standard 	for
lecturers,
	and
	urged
	Chodorow
	to 	reconsider.
	He
	followed
	with
another
	letter
	on
	July
	9,
	arguing
	that
	the
	MOU
	permitted
delegation
	of 	determining 	teaching
	loads
	to
	departments.
	He
accused
	Chodorow
	of
	insisting
	on
	a
	single,
	campus-wide
	standard
of
	nine
	courses 	for
	all
	lecturers
	and
	predicted
	that,
	in 	the
coming
	full
	term,
	the
	department
	would
	reject
	it.
	In
conclusion,
	he
	wrote:
We
	have
	therefore
	reached 	something 	of
	an
impass
	[sic]
	with
	respect 	to 	the
	loads
	to
	be
required
	next 	year 	of 	Russel
	Hvolbek,
	MaryLou
	Locke 	and
	others.
	I
	am
	very
	loathe
myself
	to
	ask
	them
	to 	teach
	on
	a
	nine-course
basis
	because
	I
	feel
	this
	will
	defy 	thesentiments 	in 	the
	department
	and
	may
	also
sacrifice
	a
	certain
	degree 	of 	departmental
authority
	...
Ultimately, 	neither
	Chodrow
	nor
	Parrish 	relented.
	Locke
was
	reappointed 	but 	not
	at
	100%
	time,
	in 	large 	part
	because
Parrish
	refused 	to 	require
	her
	to 	teach 	nine 	courses
	and
because
	Chodorow
	insisted 	that
	she
	be
	compensated
	on
	the 	basis
of
	a
	nine-course 	standard.
	As 	a
	result,
	she
	received
approximately
	$4400
	less
	than
	what 	she 	would 	have
	earned
	if
	she
had
	been 	given
	a
	full-time
	appointment 	as
	requested
	by
	the
department.
The
	controversy
	was
	not
	isolated 	within 	Parrish's
department. 	Allan
	Kaprow, 	Chairman
	of 	the 	Visual 	Arts
Department, 	wrote 	to
	Chodorow
	that 	his 	department 	had 	formed
the 	position 	that 	the 	proper
	maximum
	courseload
	was
	six,
explaining: 
30

We 	note 	that 	past 	practices 	with 	regard 	to
temporary 	faculty 	have 	varied 	widely 	among
UC 	campuses, 	some 	requiring 	only 	6 	courses
and 	others 	as 	many 	as 	12. 	However, 	the
recent 	agreement 	between 	the 	AFT 	union 	and
UC 	. 	. 	. 	specifies 	9 	courses 	per 	year 	as 	an
upper 	limit 	for 	such 	faculty, 	while
providing 	that 	"instructional 	workload 	be
lower, 	based 	upon 	the 	instructional 	workload
standards 	of 	the 	department 	... 	Our
[department] 	policy 	is 	thus 	completely 	in
accord 	with 	this 	agreement.
The 	department 	has 	always 	favored 	the
6-course 	100% 	load. 	It 	is 	only 	since 	1980,
under 	pressure 	from 	the 	then 	[Vice
Chancellor 	of 	Academic 	Affairs] 	that 	we 	were
compelled 	to 	impose 	the 	higher 	load, 	and 	our
experience 	with 	it 	has 	been 	discouraging.
We 	urgently 	desire 	to 	return 	to 	our 	normal
workload 	standard, 	as 	mandated 	by
departmental 	needs.
In 	a 	later 	communication 	regarding 	workload 	standands,
Kaprow 	told 	Chodorow 	that 	he 	felt 	it 	was 	the 	responsibility 	of
departments, 	acting 	within 	campus 	guidelines, 	to 	interpret
variations 	of 	such 	guidelines 	as 	they 	related 	to 	each
discipline 	and 	departmental 	philosophy.
Donald 	Wesling, 	chairman 	of 	the 	Literature 	Department,
wrote 	to 	Chodorow, 	informing 	him of 	the 	department's 	preference
for 	an 	eight-course 	maximum workload. 	He 	also 	informed 	him
that 	the 	writing 	courses 	currently 	taught 	by 	lecturers 	should
equal 	1.0 	IWC 	or 	more.
Michael 	Schudson, 	chairman 	of 	the 	Department 	of
Communications, 	testified 	that 	he 	was 	one 	of 	about 	half 	a 	dozen
department 	chairpersons 	who 	voiced 	strong 	opposition 	to 	the
nine-course 	campus 	standard 	in 	a 	large 	meeting 	of 	department
31

chairpersons.
	Concern
	about
	the 	nine-course
	workload
	was
	also
expressed
	by
	some
	department
	chairs 	in
	a
	November
	1986
	meeting
with
	Vice
	Chancellor
	Ticho.
Schudson,
	among
	others,
	believed 	the
	proper
	courseload
	to
be
	six.
	He
	expressed
	that
	viewpoint
	to
	Dean
	Michael
	Rothschild
and
	to
	Vice
	Chancellor
	Ticho.
In
	June,
	shortly
	after
	the 	conclusion 	of
	the
	negotiations,
Jeffery
	Frumkin,
	a
	senior 	analyst 	in 	the
	University's
	office
	of
labor
	relations
	as
	well
	as
	assistant
	negotiator
	and
	chronologer
during 	bargaining,
	began
	to
	prepare
	a
	Contract 	Administration
Manual.
	The
	manual
	contained 	excerpts
	from
	the
	MOU
	with
	a
corresponding
	text
	attempting
	to 	explain
	its
	practical
	meaning
as
	a
	day-to-day
	guide
	for
	campus
	administrators.
	Before
	its
issuance 	in 	July,
	it
	went
	through
	several
	drafts
	and 	was
reviewed
	by
	other
	members
	of
	the 	University's
	bargaining
	team.
Some
	advance
	copies
	were
	sent 	to
	key
	University
	officials
and,
	shortly 	thereafter,
	a
	final
	version
	was
	distributed 	to 	the
various
	campuses. 	This
	manual
	caused
	a
	great 	deal 	of
controversy
	and
	confusion 	because
	it,
	too,
	left
	the 	impression
that 	jurisdiction
	to
	set
	workload
	policies
	was
	within
departments.
	The
	statements 	causing 	the 	confusion 	include 	the
following
	text
	attempting 	to 	explain 	the
	meaning
	of 	language 	of
the
	workload
	article:
32

[Al]	
The 	campus
	may
	establish
	[workload]
standards
	on
	a
	departmental
	basis
	for
	a
full-time 	instructional
	workload
	that
	is
lower
	than 	nine
	(9)
	or
	six
	(6)
respectively
	...
	If
	the
	department
standard
	is
	established 	at
	a
	lower
number,
	this
	standard
	must
	apply
	to
	all
unit
	members
	in 	the
	department.
	For
example,
	if
	a
	department
	establishes
	a
full-time
	standard
	of
	eight
	(8)
	...
	a
unit
	member
	whose
	workload
	is
	less
	than
the 	equivalent
	of
	eight
	(8)
	IWC's
	cannot
be
	considered
	full-time
	(100%).
[A3]	
. 	. 	.
	Each
	department
	that
	employes
members
	of
	this 	unit
	must
	develop
	a
	set
of 	course
	equivalencies
	...
	These
equivalencies 	are
	specific
	to 	the
department,
	and
	comparisons
	to 	other
departments 	or
	other
	campuses 	by
	a
	unit
member
	or
	the
	UC-AFT
	is
	not
	appropriate.
[A4]	
If
	a
	department
	intends 	to
	modify
	its
workload
	policy
	or
	practice
	for 	these
unit
	members,
	the
	University
	is
obligated
	to 	provide
	notice 	to 	the
UC-AFT
	of
	the
	proposed 	change
	....
[Emphasis
	added.]
Frumkin
	testified
	that
	the
	language
	in 	the
	manual 	was
	not
intended 	to 	suggest
	that
	the
	jurisdiction
	to
	make
	workload
determinations 	resided 	within 	departments, 	but
	he
	received
	a
sufficient
	number
	of
	communications 	which
	led
	him
	to 	conclude
that 	that
	unintended
	result
	was
	occurring
	and
	that
	the
	manual
needed
	to
	be
	redrafted.
	However,
	it
	was
	not
	redrafted
	until
after
	the 	conclusion 	of
	MOU
	training 	sessions 	at 	the 	various
campuses,
	at
	which,
	predictably,
	many
	in 	attendance 	reached 	the
same
	"unintended" 	conclusion 	regarding 	the 	departmental
	roles.
At
	the 	training 	sessions,
	he
	routinely 	stated 	that 	the 	ultimate
authority 	to 	determine 	workload 	did 	not 	rest 	within
33

departments,
	but
	within 	the
	campus
	administration
	and
	that
	the
manual
	would 	be
	modified
	to
	reflect
	that
	viewpoint.
The
	manual
	was
	redrafted 	in
	September
	1986 	and
	reissued 	in
October.
	The
	phrases 	underlined
	above
	in
	paragraph
	Al
	were
deleted
	("on
	a
	departmental
	basis"
	and
	"if
	a
	department
establishes").
	The
	latter
	was
	replaced
	by
	a
	sentence
	reading:
"For 	example,
	if
	a
	full-time
	standard
	of
	eight
	(8)
	.
courses
	is
	established
	for
	a
	department
	. 	"
	Each
	of
	the
remaining 	quoted
	passages
	was
	modified
	to
	eliminate
	mention 	of
the
	specific
	departmental 	function 	in
	setting
	workload
standards.
	Both
	contract 	administration
	manuals 	were
	internal
documents
	of
	the 	University 	administration
	and
	did
	not
	express
the
	views
	of 	the
	UCAFT.
The
	University's
	attempts
	to
	establish
	workload
	standards
and
	equivalencies
	on
	the 	various
	campuses
	ran
	concurrently
	with
the
	foregoing
	controversies.
	At
	UCSD,
	Vice
	Chancellor 	of
Academic
	Affairs
	Harold 	Ticho
	and
	his
	immediate
	staff
	came
	to
the 	preliminary 	(July) 	conclusion
	that
	the
	MOU
	permitted 	the
campus
	to
	proceed 	with 	the
	workload
	policies 	previously 	in
effect
	(nine-course 	load).
	He
	consulted with 	the
	academic
senate
	Committee 	on 	Academic
	Personnel
	(CAP)
	on 	two
	occasions
and
	it
	(CAP)
	concurred
	on
	the 	nine 	course 	load.
7
7
At
	the
	first
	meeting,
	CAP
	recommended
	that
	Ticho 	look
into 	complaints 	from 	Unit
	18 	members
	about 	the 	intended
interpretation
	of 	the 	workload 	policy.
34

After 	these
	consultations,
	Ticho
	initiated
	a
	series
	of
discussions, 	primarily
	with 	the
	deans, 	designed
	to
	develop
	a
workload
	policy 	in
	accordance
	with 	the
	MOU.
	He
	asked
	the
	deans
to
	consult
	with
	department
	chairpersons
	and
	to
	ask
	for
discussion
	and
	recommendations
	on
	the
	subject.
	In
	addition,
Ticho
	attended
	meetings
	involving
	department
	chairs
	and 	members
of
	Ticho's
	immediate
	staff,
	at
	which 	workload
	issues
	were
discussed.
At
	the
	end
	of 	October
	1986, 	Ticho
	wrote
	to 	the 	various
deans, 	requesting
	that
	they 	prepare
	a
	list
	of
	all
	courses
	that
did 	not
	meet
	the
	IWC
	definition
	("non-standard 	courses")
	and
	to
propose
	a
	workload
	value 	for
	each 	of
	them.
	In
	turn,
	Dean
Chodorow 	met
	with
	his
	department
	chairpersons
	(in
	literature,
philosophy,
	history, 	visual
	arts,
	music,
	theater
	arts,
	and
physical 	education) 	to
	talk
	about 	workload
	issues
	and
	to
discuss
	feedback
	from
	the 	faculty 	within 	those 	departments.
That
	information
	was
	relayed
	back
	to 	the
	vice-chancellor.
The
	actions
	of
	Chairmen
	Parrish,
	Kaprow,
	Wesling,
	and
Schudson
	typified
	the 	opposition 	to 	Ticho's 	attempts 	to
implement
	a
	uniform,
	nine-course,
	campus-wide 	workload
standard.
	In
	spite
	of 	the
	resistance, 	Ticho's 	position
prevailed
	and
	a
	campus-wide
	standard 	of 	nine
	was
	adopted.
	A
clash
	of 	views
	within
	this
	broader 	controversy 	occurred
	in
connection 	with 	the 	issue 	of 	the 	writing 	(composition) 	courses.
35

1.
	The
	Writing
	Programs
	And
	Courses
There
	are 	four
	colleges 	within
	the
	structure
	of
	UCSD
	-
Warren
	College,
	Third 	College,
	Muir
	College,
	and
	Ravell
College.
	Each
	has
	a
	writing
	program, 	headed
	by
	a
	director,
	and
each
	program
	is
	somewhat
	different.
	The
	programs
	in
	Muir,
Warren
	and
	Third
	resemble 	each
	other
	more
	than
	that
	of
Ravell's.
	At
	Ravell,
	there
	are
	lecture
	courses 	taught
	mainly
by
	regular 	faculty
	and
	companion
	writing
	courses
	taught,
	in
many
	cases,
	by
	lecturers.
8
At
	the 	other 	colleges, 	the
writing 	sections
	are
	esentially
	independent.
All 	students 	in
	the
	four
	colleges
	are 	required 	to
	enroll
	in
the 	writing
	programs.
	Those
	courses,
	such 	as
	Warren
	Writing
lOA
	and 	Warren
	Writing
	10B
	are 	very
	similar 	to
	traditional
freshman
	English 	composition 	courses
	where
	students 	write
	a
minimum 	number
	of 	papers 	based
	upon
	assigned 	readings 	and/or
lectures.
	The
	main
	goal 	of
	writing
	courses
	is
	to
	further
develop
	analytical
	writing
	skills
	of
	the 	students.
A
	large
	number
	of
	classes 	within 	the 	writing
	programs
	are
taught
	by
	graduate 	students
	(Teaching
	Assistants
	or 	TA's).
However,
	the
	maximum
	number
	they 	are 	allowed
	to 	teach
	is
	much
lower
	and
	the 	level
	of
	responsibility
	and
	independence
	is
significantly 	less
	than
	that
	expected 	of
	lecturers 	teaching
those 	courses.
8	
At
	Ravell 	students 	in
	a
	writing 	section 	(class) 	write
papers 	related 	to 	the 	lectures 	they 	attend.
36

According 	to 	Vice-Chancellor 	Ticho's 	testimony, 	he 	decided,
upon 	recommendation 	of 	his 	staff 	and 	the 	various 	deans, 	to
consider 	all 	freshman 	writing 	courses 	in 	all 	the 	colleges 	as
nonstandard 	courses 	- 	i.e., 	they 	did 	not 	meet 	the 	definition 	of
an 	instructional 	workload 	course. 	They were 	then 	valued
uniformly 	at 	.75 	IWC. 	This 	essentially 	allowed 	the 	campus 	to
require 	all 	writing 	program 	lecturers 	to 	teach 	12 	courses 	per
year 	in 	order 	to 	be 	considered 	full-time.
As 	noted 	earlier, 	the 	"bargaining 	history 	meaning" 	of 	an
instructional 	workload 	course 	("regularly 	scheduled, 	requires
significant 	academic 	preparation 	outside 	class, 	meets 	a 	minimum
of 	three 	hours/week was 	meant 	to 	describe 	the 	"traditional,
conventional 	academic 	course" 	as 	contrasted 	to 	such 	things 	as
"individual 	oboe 	instruction", 	"studio-classes", 	and 	the 	like.
University witnesses' 	attempts 	to 	justify 	the 	uniform 	labelling
of 	all 	freshman 	composition writing 	courses 	as 	nonstandard 	was
not 	convincing.
Kimberly 	Scott 	Davis 	is 	chairman 	of 	the 	University 	of
California 	Council 	of 	Writing 	Programs 	and 	academic 	coordinator
of 	a 	writing 	program 	and 	lecturer 	in 	such. 	He 	testified 	that,
pursuant 	to 	a 	resolution 	arrived 	at 	at 	a 	conference 	of 	writing
program 	directors 	and 	writing 	program 	lecturers 	from 	throughout
the 	University 	system, 	the 	council 	recommended 	that 	writing
courses 	systemwide 	be 	equivalent 	to 	1.25 	- 	1.50 	of 	the
"benchmark" 	[IWC] 	course 	described 	in 	the 	MOU. 	The 	resolution
was 	unanimously 	passed 	on 	November 	14, 	1986.
37

The
	testimony 	of
	Deborah
	Small
	(lecturer
	in
	the
	Warren
Writing
	Program),
	James
	Degan
	(lecturer
	in 	the
	Third
	College
Writing
	Program
	and
	its
	assistant
	coordinator),
	and
	Christine
Norris
	(assistant
	coordinator
	and
	lecturer
	in 	the
	Ravell
Writing
	Program)
	provides
	abundant
	and
	detailed
	support
	for
	the
conclusion
	that
	the 	writing
	courses
	easily
	fall
	within
	the
intended
	definition
	of
	an
	instructional
	workload
	course.
Even
	Literature
	Department
	Chairman 	Donald
	Wesling,
employed 	by
	the 	University
	of
	California
	as
	an
	English
professor
	for
	some 	19
	years,
	testified
	that
	he
	taught
	one
	of
the
	writing
	courses
	in
	the
	Warren
	College
	Program
	in 	the
	fall
of
	1986
	in
	order 	to 	familiarize
	himself 	with
	what 	went 	on
	in
the
	program.
	In
	assessing 	the
	degree 	of
	work
	necessary
	to
teach 	the 	course,
	he
	"made
	a
	point
	of
	punctiliously
	doing
everything"
	that
	other 	writing
	program
	lecturers
	did
	and
followed
	the
	same
	routine.
	Even
	without 	counting
	a
	five-day
preparation 	session 	lecturers
	are 	required 	to 	attend
	prior
	to
the
	academic
	year,
	and
	considering 	his
	background
	of
	teaching
other
	analogous 	courses 	in 	the 	writing 	or 	English 	major, 	he
concluded
	that
	the
	total
	time 	involved
	in 	teaching 	the 	writing
course
	exceeded
	that
	of
	his
	upper
	division 	courses.
	He
	wrote
that 	these 	courses 	should 	have
	a
	workload
	value 	of
	at 	least
	1.0
IWC.
The 	most
	vivid
	example 	of 	the
	work
	involved 	in 	teaching 	the
writing 	courses
	is 	illustrated
	by 	James 	Degan's 	testimony.
	It
is 	not 	necessary 	to 	describe
	it
	in
	its 	entirety.
38

In 	summary, 	the 	Third 	College 	writing 	courses 	meet 	four
hours 	per 	week 	except 	during 	those 	weeks 	when 	the 	lecturers
have 	one-on-one 	conferences 	with 	students 	regarding 	their
work. 	Students 	are 	required 	to 	write 	four 	formal 	essays 	for
each 	course, 	varying 	from 	four 	to 	five 	to 	ten 	to 	fifteen
typewritten 	pages. 	In 	addition, 	they 	must 	write 	responses 	to
assigned 	readings 	in 	a 	"writer's 	journal." 	Typically 	three
such 	responses 	per 	week 	are 	demanded 	for 	a 	total 	of 	30 	per
quarter. 	Students 	are 	asked 	to 	read 	from 	a 	basic 	text, 	St.
Martin's 	Guide 	to 	Writing. 	In 	addition, 	three 	supplemental
books 	called 	"trade 	books" 	are 	assigned 	in 	their 	entirety, 	at
the 	choosing 	of 	the 	instructor 	and 	usually 	from 	a 	compiled 	list
of 	other 	works. 	Generally, 	students 	write 	about 	15,000 	words
and 	read 	about 	1000 	pages 	to 	meet 	minimum 	standards.
All 	essays 	go 	through 	several 	drafts, 	each 	of 	which 	is
"workshopped" 	in 	class 	and 	reviewed 	by 	the 	instructor. 	Journal
entries 	are 	also 	required 	to 	be 	turned 	in 	for 	the 	lecturer's
review.
A 	lecturer 	is 	required 	to 	hold 	scheduled 	tutorials 	with
each 	student 	three 	times 	during 	each 	quarter 	to 	discuss 	work 	in
progress, 	completed 	work 	and 	any 	other 	problems 	an 	individual
student 	may 	be 	having. 	The 	courses 	are 	also 	characterized 	by 	a
hectic 	pace 	and 	require 	strict 	adherence 	to 	pre-set 	deadlines.
Class 	sizes 	range 	between 	12 	and 	18.
39

In
	preparation,
	lecturers
	spend
	a
	considerable
	amount
	of
time
	reading
	and
	responding
	to 	individual
	essays
	and
	individual
journal
	entries,
	preparing
	and
	reading
	new
	texts,
	writing
journal
	questions 	to 	assign,
	and
	preparing 	to
	conduct
	class
discussion
	of
	the 	readings. 	Lecturers 	are 	required 	to
	grade
and 	make
	critical
	comments
	on
	all
	essays.
9 When
	critiquing
formal
	essays,
	lecturers
	also
	review
	all
	work 	done
	by
	students
in 	preparation 	for 	the 	essay,
	all
	of
	which 	must 	be
	turned
	in 	at
the
	same
	time. 	This
	includes 	pre-writing 	exercises, 	invention
exercises, 	several
	drafts,
	workshop
	responses
	from
	classmates,
and
	a
	self-evaluation
	of
	the
	student's
	own
	work.
Lecturers
	attempt 	to 	introduce
	new
	material 	(texts)
	each
term
	and
	to
	rotate
	assignments
	from
	different 	texts
	from
	one
section
	to 	another 	during
	the
	same
	term
	if
	they 	are 	teaching
multiple 	sections
	during
	one
	quarter.
	In
	some
	cases,
	lecturers
supervise 	the
	work
	of
	TA's
	teaching 	other 	writing 	courses.
The
	following 	exerpt
	from
	the 	cross-examination 	of
	Degan 	by
Respondent,
	characterizes 	the 	nature
	of
	these 	writing 	courses:
9	
Graduate
	students
	(TA's)
	are 	not 	given 	the
	same
	degree
of 	leeway
	in 	grading. 	Their 	grading
	is 	closely 	supervised
	by
writing 	coordinators 	and/or
	directors.
40

Q.
	Well,
	in
	the
	writing
	program
	isn't
	it
true
	that
	your
	teaching
	as
	a
	part
	of
	the
writing
	program
	is
	quite
	different
	than
if
	you
	were
	a
	lecturer
	in 	the 	English
department
	teaching
	other
	Englishcourses?
A. 	No, 	I
	don't
	think
	so. 	I'm 	teaching
students
	to
	read
	and
	respond
	to
	a
	text
just
	as
	I
	would
	in
	any
	literature
	course.
Q.
	But
	the 	level
	of
	your
	responsibility
with
	respect 	to
	what 	you
	get 	to
	do
	inthe 	course
	in 	the 	writing
	program,
	what
choices
	you
	have
	and
	what
	the 	goals
	of
that
	program
	are 	are
	quite 	different
than 	the
	level
	of
	responsibility
	you
would
	have 	as
	the
	instructor,
	faculty
instructor
	of
	a
	more
	typical
	English
course?
A. 	No, 	I
	don't
	agree 	with
	that.
Q.	
Does
	Professor
	Cooper 	have
	the
	final
grading
	authority
	for 	the
	writing
program
	in
	Third 	College?
A.
	Only
	in 	the 	case 	of
	a
	disputed 	grade,
otherwise 	grading
	is
	the
	responsibility
of
	the
	instructor.
Q.
	What
	about
	with 	respect 	to
	TA's?
A.
	I'm 	not 	sure
	I
	understand
	your
	question,I'm
	sorry.
Q.
	With
	respect 	to
	TA's,
	do
	they
	have
	the
final
	grading
	authority 	in
	their
sections?
A.
	In
	their 	sections, 	yes, 	they
	do.
Q. 	So
	that's
	the
	same
	then 	for 	lecturers,
as 	well?
A.
	Yes,
	just
	more
	grades 	to 	enter
	as
	a
lecturer.
41

Ticho
	and
	Chodorow's
	testimony
	that
	the
	writing
	courses 	are
uniformly 	nonstandard,
	is
	far 	less 	precise
	and
	does
	not
	deserve
the
	evidentiary
	weight 	given
	that
	of
	Degan,
	Wesling, 	Small
	and
Norris,
	all
	of
	whom
	have 	been
	recent 	teachers
	of 	those
courses.
	Ticho
	demonstrated
	a
	lack 	of
	familiarity
	with
	the
writing
	programs
	during 	testimony.
	He
	essentially 	relied
	upon
the 	advice 	of
	his
	staff
	and
	deans
	in
	reaching
	the 	conclusion
that
	writing
	courses
	were
	nonstandard.
In
	attempting 	to 	support
	his 	determination,
	he
	frequently
retreated
	from
	a
	position
	taken
	when
	later
	questioned
	more
closely.
	For 	example, 	one
	of
	the 	supporting 	reasons
	he
	gave
was
	that
	a
	large 	part
	of 	the
	responsibility
	for 	teaching
	the
courses, 	taught 	in 	large 	part
	by
	TA's,
	fell
	on
	the
	writing
coordinators.
	When
	asked 	whether
	the 	level
	of
	responsibility
was
	greater 	in 	writing 	sections 	taught
	by
	lecturers
	as 	opposed
to 	TA's,
	he
	acknowledged,
	"Oh,
	sure. 	Certainly.
	A
	lecturer 	is
ordinarily
	responsible 	for 	preparation
	of 	the 	course
	and
everything
	else."
	His
	initial
	conclusion
	that
	all 	lecturers
teaching 	multiple 	writing 	sections 	in
	one
	quarter
	had
	less
preparation 	to
	do
	because 	the 	courses
	were
	identical
	was
rebutted
	by more
	specific
	testimony.
	He
	modified
	his
	earlier
statement
	on
	cross-examination. 	In 	response 	to
	a
	question
	as
to 	whether
	all
	lecturers
	who
	teach
	more
	than
	one
	section 	teach
the
	same
	subject 	matter 	in
	each
	section,
	he
	stated: 	"I
	can't
testify
	to 	that 	in
	any
	particular 	case.
	I
	suppose 	an
instructor
	could 	decide 	to 	teach 	the
	same
	thing 	in 	three
42

classes
	and
	do
	something
	different
	in 	the
	fourth".
Ticho's
	testimony
	that
	freshman
	writing
	courses 	involve
much
	less
	academic
	preparation 	outside
	the
	class
	by 	an
instructor
	was
	specifically
	refuted
	by
	the
	testimony 	of
Wesling.
	Ticho's 	blanket 	conclusion
	that
	writing
	program
lecturers
	work 	from 	an
	already
	prepared
	syllabus 	rather
	than
having
	to
	make
	one
	up,
	a
	view
	shared
	by
	Chodorow,
	is
	contrasted
by
	Degan's 	testimony
	indicating 	that
	he
	prepared
	his
	own
syllabus 	in
	order 	to
	conduct
	lecture
	courses,
	and
	only
	he 	used
that
	syllabus.
Chodorow's
	last
	experience 	teaching
	a
	writing
	course
	was
	in
1981. 	His
	testimony
	that
	the 	faculty 	in 	the 	writing
	program
"don't
	run
	their
	own
	courses" 	turned 	out
	to
	be
	an
overgeneralization
	not
	founded
	in 	fact
	and
	not
	applicable 	to
every 	writing
	program.
	The
	statement
	is
	generally 	true
	of
graduate 	students 	teaching 	the 	writing 	courses.
	His
	testimony
that 	writing 	instructors 	at
	Ravell 	College
	are
	not
	primarily
responsible 	for 	grading
	and
	have
	to
	be
	monitored
	carefully 	in
that
	regard
	by
	the 	coordinator
	is
	not
	applicable 	to 	Third
College.
	That 	testimony
	was
	also 	refuted
	by
	Christine 	Norris
who
	recently 	taught 	at 	Ravell's 	writing
	program.
	As
	Ravell's
current 	writing
	program
	assistant 	coordinator,
	she
	testified
that
	although
	TA's
	are 	closely
	monitored, 	including 	monitoring
of
	their
	grading,
	lecturers'
	grading
	is
	not
	at 	all
	supervised.
43

Under
	cross-examination
	Chodorow
	acknowledged
	that
	the
writing
	programs
	in 	the 	various 	colleges
	were
	not
	all
	the
	same
and
	that
	he
	did 	not
	know
	precisely
	what
	reading
	materials
	were
being
	used
	in 	the
	Warren
	Writing
	Program,
	although
	his
	review
of
	syllabi,
	etc.,
	indicated
	that 	lecturers
	in
	that
	program 	used
"similar" 	materials.
	When
	pressed 	to 	explain
	a
	previous
	answer
that
	indicated 	materials
	used
	for 	these
	courses
	were
	largely
pre-determined
	by
	the 	coordinators,
	he
	qualified
	it
	by
acknowledging
	that 	lecturers
	do
	make
	decisions
	as
	to
	what
materials
	to
	use
	in
	class,
	"but
	under
	the
	guidance 	of
	the
coordinator."
Examples
	diminishing 	the
	weight 	of
	Chodorow's
	testimony
regarding 	the 	courseload 	value 	of
	writing
	courses
	abound
	in
	the
record
	and
	are
	too
	voluminous
	to
	list
	herein.
The
	factual
	conclusion
	drawn 	by
	Ticho
	and
	the
administration,
	viewed
	in
	its
	proper
	context,
	was
	not
	that
	the
writing
	courses 	did 	not
	require
	significant
	preparation
	by
	a
lecturer
	outside
	of
	class,
	but
	that
	they 	required
	less
preparation
	than
	other
	"traditional"
	courses.
	This
	conclusion
was
	unsupported,
	and
	even
	Chodorow was
	willing 	to
	concede
	that
teaching 	writing 	courses 	required
	significant 	preparation 	at
least
	when
	being 	taught 	for 	the
	first
	time.
10
The
	product 	of 	the
	meeting 	process 	between
	the 	deans, 	the
department 	chairpersons
	and
	the 	vice 	chancellor's 	office
	was
	a
lO	
There
	is
	no
	dispute 	that 	all 	writing 	courses 	meet
	a
minimum
	of 	three 	hours 	per
	week 	and
	are 	regularly 	scheduled.
44

document 	which 	became 	UCSD's 	workload 	policy 	under 	the 	MOU
effective 	in 	January 	1987. 	The 	instrument 	dictated 	that, 	at
UCSD, 	unit 	18 	lecturers 	shall 	teach 	nine 	instructional 	workload
courses 	(on 	a 	quarter 	system) 	per 	academic 	year 	when 	employed
100% 	time. 	In 	addition, 	it 	stipulated 	that 	four 	sections 	of
composition 	are 	equivalent 	to 	three 	instructional 	workload
courses, 	and 	that 	the 	workload 	of 	a 	100% 	time 	appointee 	was
twelve 	sections. 	The 	policy 	applied 	to 	freshman 	writing
courses 	as 	well 	as 	to 	"comparable" 	writing 	sections 	offered 	by
departments. 	Thus, 	as 	Ticho 	testified, 	writing 	courses 	came 	to
be 	valued 	at 	.75 	IWC 	across 	the 	board. 	Separate 	provisions 	in
the 	policy 	allowed 	additional 	weight 	to 	be 	given 	courses 	when
taught 	for 	the 	first 	time 	and 	for 	courses 	with 	unusually 	large
enrollment, 	subject 	to 	a 	dean's 	approval.
The 	University 	of 	California 	English 	Council 	appealed 	to
UCSD's 	chancellor, 	seeking 	to 	lower 	the 	maximum workload 	of
composition 	lecturers 	to 	seven 	courses 	and 	to 	value 	each 	course
at 	1.285 	IWC. 	That 	plea 	was 	not 	successful. 11
11 	The 	English 	Council 	is 	comprised 	of 	the 	chairpersons
of 	English 	departments 	from 	the 	various 	campuses 	in 	the
University 	system. 	Although 	the 	evidence 	regarding 	the
workload 	policies 	of 	other 	campuses 	was 	incomplete, 	the
evidence 	available 	does 	not 	indicate 	that 	any 	other 	campus
required 	any writing 	program 	lecturer 	to 	carry 	as 	many 	as 	12
courses 	at 	full 	time 	or 	that 	any writing 	course 	was 	valued 	at
less 	than 	1 	IWC.
45

IV.
	DISCUSSION
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.
12
In
	Regents
	of
	the 	University
	of
	California
	v.
	Statewide
University 	Police 	Association
	(1985)
	PERB
	Decision
	No.
	520-H,
the
	Board
	reiterated
	its
	standards
	of
	analysis 	for 	alleged
violations
	of
	HEERA's
	meet 	and
	confer 	provisions.
	Accordingly,
in
	determining
	whether
	a
	party's
	negotiating
	conduct
constitutes
	an
	unfair 	practice,
	the
	Board
	uses 	both
	a
	"per
	se''
and
	a
	"totality
	of
	the
	conduct"
	test,
	depending
	on
	the
	conduct
involved
	and 	on
	its
	effect
	on
	the 	negotiating 	process.
An
	employer's
	unilateral
	change
	in
	terms
	and
	conditions
	of
employment
	within 	the
	scope
	of
	representation
	is,
	absent
	a
valid
	defense,
	a
	per 	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.
12 	The
	Educational
	Employment
	Relations
	Act
	is 	codified
at 	California
	Government 	Code
	section
	3540,
	et
	seq.
	The
National
	Labor
	Relations
	Act
	(NLRA)
	is 	codified 	at
	29
	u.s.c.
Section
	151,
	et
	seq.
	The
	construction 	of 	provisions 	of 	the
NLRA
	is 	useful 	guidance 	in 	interpreting 	parallel 	provisions 	of
collective 	bargaining 	statutes 	administered
	by
	the
	PERB.
	See
San 	Diego 	Teachers 	Association
	v.
	Superior 	Court 	(1979) 	24
Cal.3d 	1, 	12-13; 	Firefighters
	Union 	v. 	City 	of 	Vallejo 	(1974)
12
	Cal.3d 	608, 	616. 46

Established 	policy 	relating 	to 	terms 	and 	conditions 	of
employment 	may 	be 	embodied 	in 	a 	collective 	bargaining 	agreement
(Grant 	Joint 	Union 	High 	School 	District 	(1982) 	PERB 	Decision
No. 	196) 	or, 	where 	a 	contract 	is 	silent 	or 	ambiguous, 	it 	may 	be
determined 	from 	past 	practice 	or 	bargaining 	history 	(Rio 	Hondo
Community 	College 	District 	(1982) 	PERB 	Decision 	No. 	279).
In 	determining 	whether 	the 	University 	violated 	HEERA
section 	3571 	as 	alleged, 	the 	foregoing 	principles 	will 	be 	kept
in 	mind.
A. 	The 	Nine-Course 	Maximum Load
UCAFT 	contends 	that 	the 	University's 	San 	Diego 	campus
has 	repudiated 	the 	workload 	provision 	of 	the MOU, 	turning 	that
article 	"on 	its 	head" 	in 	imposing 	a 	uniform 	campus-wide
workload 	standard 	of 	nine 	courses 	on 	departments 	through 	the
Vice 	Chancellor's 	office. 	It 	argues 	that 	the 	provisions 	of 	the
contract 	were 	meant 	to 	give 	departments 	jurisdiction 	to 	set 	a
workload 	up 	to 	the 	maximum 	of 	nine 	courses, 	and 	because
departments 	were 	not 	given 	untrammelled 	rights, 	higher 	levels
of 	the 	University 	administration would 	have 	some 	veto 	powers 	in
some 	instances. 	Hence, 	by 	imposing 	an 	across-the-board
standard, 	they 	have 	turned 	the 	contract 	upside 	down,
disallowing 	departments 	to 	have 	the 	primary 	role 	in 	setting
workloads 	and 	directly 	impacting 	the 	terms 	and 	conditions 	of
employment 	for 	unit 	18.
47

The 	University 	contends 	that 	the 	language 	of 	the 	MOU 	and
its 	meaning 	are 	plain, 	authorizing 	it 	to 	take 	the 	actions
alleged 	to 	be 	unlawful. 	Indeed, 	it 	seeks 	to 	recover 	attorneys'
fees 	in 	partial 	reliance 	on 	this 	premise.
A 	close 	examination 	of 	the MOU's 	provisions 	makes 	it 	clear
that 	it 	does 	not 	address 	the 	central 	issue 	in 	this 	dispute 	- 	at
which 	level 	within 	the 	University 	structure 	is 	the 	maximum
standard 	to 	be 	set? 	The 	parties 	have 	advanced 	different
interpretations 	of 	the 	contract 	to 	support 	their 	views.
However, 	PERB 	is 	concerned 	only with 	unilateral 	changes 	in
established 	policy which 	represent 	conscious 	or 	apparent
reversals 	of 	previous 	understandings, 	whether 	the 	latter 	are
embodied 	in 	a 	contract 	or 	evident 	from 	the 	parties' 	past
practice. 	Grant 	Joint 	Union 	High 	School 	District, 	supra, 	at 	p.
8. 	Here, 	the 	Charging 	Party 	has 	failed 	to 	show 	that 	a 	policy
giving 	departments 	primary 	or 	final 	authority 	to 	set 	courseload
maximums 	was 	established. 	It 	has 	only 	shown 	that 	the 	Employer
made 	one 	of 	two 	or 	more 	arguable 	interpretations 	of 	the 	MOU.
These 	competing 	claims 	do 	not 	amount 	to 	a 	"policy 	change.
"Even 	assuming, 	arguendo, 	that 	the 	contract 	is 	ambiguous 	(not
merely 	silent) 	on 	this 	issue, 	other 	evidence 	demonstrates 	no
unilateral 	change 	of 	a 	previous 	understanding 	took 	place.
As 	the 	Board 	held 	in Marysville 	Joint 	Unified 	School
District 	(1983) 	PERB 	Decision 	No. 	314, 	when 	ambiguous 	contract
language 	appears, 	PERB 	will 	next 	consider 	evidence 	of 	the
48

bargaining 	history 	underlying 	a 	particular 	contract 	provision,
or 	evidence 	of 	the 	employer's 	actual 	practice. 	Since 	the
Charging 	Party 	elected 	to 	amend 	the 	Complaint 	to 	rely 	solely
upon 	the 	contractual 	negotiations, 	past 	practice 	will 	not 	be
considered 	in 	deciding 	this 	issue.
The 	evidence 	is 	not 	totally 	one-sided. 	In 	explaining 	the
language 	he 	proposed 	during 	negotiations, 	Bickal 	stated 	that
departments 	would 	have 	an 	important 	role 	in 	developing 	the
workload 	policies, 	with 	some 	"general 	policy 	direction 	from
above", 	but 	would 	not 	have 	untrammelled, 	unilateral 	power.
When 	Gregory 	sought 	clarification 	by 	giving 	a 	hypothetical
situation 	where 	an 	individual 	unit 	member's 	workload was
determined 	by 	a 	department 	via 	a 	recommendation 	to 	higher
levels 	of 	the 	administration, 	Bickal 	explained 	that 	he 	did 	not
envision 	determinations 	of 	lecturer 	workloads 	going 	up 	the
hierarchical 	route 	from 	departments 	to 	deans 	or 	provosts 	to
vice-chancellors. 	Bickal's 	statements 	in 	this 	regard 	tend 	to
support 	the 	Charging 	Party's 	interpretation 	of 	the 	language.
However, 	the 	most 	persuasive 	evidence 	leads 	to 	a 	conclusion
at 	variance 	with 	that 	proffered 	by 	the 	Charging 	Party.
Most 	convincing 	are 	the 	events 	surrounding 	UCAFT's 	proposal
that 	spelled 	out 	the 	"locus" 	of 	authority 	regarding 	workloads.
That 	proposal 	specified 	that 	workloads 	may 	be 	lower 	based 	upon
the 	standard 	adopted 	by 	the 	department, 	program, 	or 	board 	in
consultation with 	unit 	instructors. 	The 	evidence 	indicated
that 	Gregory 	agreed 	to 	the 	deletion 	of 	the 	language 	based 	upon
49

Bickal's
	objections 	to 	identifying
	an
	individual
	or 	agent 	of
the
	University
	who
	was
	required 	to
	carry
	out
	some
	commitment
	in
the
	MOU.
	He
	specifically
	conditioned
	agreement
	on
	eliminating
language
	designating
	who
	within
	the
	academic
	administration
(department
	chairpersons,
	deans,
	vice-chancellors,
	etc.)
	had
the
	authority
	to
	determine
	the
	maximum
	courseload.
	Gregory
concurred
	and
	the
	language
	earlier
	proposed
	by
	the
	UCAFT
	was
dropped.
	A
	full
	agreement
	followed.
Having
	failed
	to 	obtain
	a
	contractual
	guarantee
	that
departments
	would
	have
	the
	primary 	or 	the
	final
	authority
	to
develop
	their
	own maximum
	workloads,
	did 	the
	Union
	nevertheless
have
	a
	basis
	under
	the
	MOU
	to
	insist
	that
	the 	University
refrain
	from
	setting
	uniform
	campus-wide
	maximums
	of 	nine
courses?
	The
	bargaining
	history
	demonstrates
	that
	one
	of 	the
University's
	goals
	was
	to
	retain
	flexibility
	between
departments
	in
	determining
	maximum
	workloads
	and
	to 	preserve
the
	automony
	of 	the
	campuses
	in
	this
	regard.
	It
	also
	shows
that
	both
	parties
	obtained 	hard-fought
	limitations
	on
	maximum
and
	minimum
	loads
	-
	i.e.,
	the 	University 	retained
	flexibility
to
	set
	varying
	workload
	levels
	as
	appropriate 	to
	a
	particular
department 	or
	campus 	and
	the
	Union
	obtained
	a
	companion
	right
not
	to
	have
	that 	level
	exceed 	nine
	instructional
	workload
courses.
	While
	the
	Union
	may
	have 	formed
	the 	impression
	that
workloads 	would
	probably 	vary
	from
	department 	to 	department 	or
campus
	to
	campus,
	the 	University 	never 	agreed 	to 	guarantee 	that
workloads 	would 	vary. 	In 	essence, 	the 	University 	obtained 	the
50

right
	to 	decide
	whether
	departmental
	standards
	would
	vary 	or
whether
	they
	would
	be
	uniform,
	and
	to
	insist
	on
	any
	courseload
level,
	so 	long 	as
	it
	did
	not
	exceed
	nine.
B.
	The
	Writing
	Courses
The
	evidence 	demonstrates
	that
	both
	parties
	obtained
important
	workload
	guarantees
	under
	Article
	XXV.
	Reciprocal 	to
the
	University's 	right
	to
	decide
	the
	maximum
	courseload
	was, 	as
University 	negotiator 	Ellen
	Switkes
	testified,
	a
	guarantee
against
	abuse 	of
	that
	maximum 	- 	a
	guarantee
	that 	lecturers
would
	not
	be
	overloaded 	with 	courses.
	She
	confirmed, 	under
cross-examination,
	that
	the
	"equivalency
	portion"
	of
	Article
XXV
	-
	the
	setting
	of
	equivalencies
	and
	workload
	values
	for
courses
	(sections
	A3,
	A5, 	A6,
	and
	A7) 	-
	was
	not 	intended
	to
alter,
	or 	"get
	around"
	the 	nine-course
	maximum
	load 	under
paragraphs
	Al 	and
	A2.
	As 	a
	preventative
	measure
	against
	abuse,
the
	Union
	obtained 	the 	elimination
	of 	language
	that
	would
	have
given 	the 	University 	"sole"
	discretion
	to 	determine 	whether
	a
course 	did 	not
	constitute
	an
	"instructional
	workload
	course"
	-
i.e.,
	that
	it
	was
	nonstandard.
	Both
	parties
	walked
	away
	from
the 	bargaining 	table 	believing 	that
	each
	had 	been
	successful 	in
obtaining 	these
	workload
	guarantees.
Contrary 	to 	the 	opinion 	testimony 	of 	Ticho
	and 	Chodoiow,
and
	to
	some
	extent 	testimony 	of 	Switkes 	(which
	was
	based 	upon
conclusions 	rather 	than 	statements
	made
	during 	bargaining), 	the
University 	is
	not 	free 	to 	give 	courses
	a
	value 	of 	less 	than 	1.0
IWC
	("downgrade") 	once 	the 	three
	components 	of 	the 	definition
51

are
	met
	-
	regularly
	scheduled,
	significant
	preparation 	outside
the
	class,
	and
	meeting
	a
	minimum
	of
	three
	hours
	per
	week.
There
	was 	no
	discussion
	at
	the 	bargaining
	table
	as
	to
	what
"significant
	academic
	preparation"
	meant.
	However,
	there
	is
a
	great
	deal
	of 	evidence 	over
	what
	was
	intended
	as
	an
instructional
	workload
	course.
Although
	the
	list
	was
	not
	all-inclusive,
	the
	contract
itself
	gives
	a
	clear
	expression
	of
	what
	non-standard
	courses
were
	(aside
	from
	those
	that 	clearly
	did 	not
	meet
	three
hours/week
	and
	were
	not
	regularly
	scheduled):
	laboratory
supervision, 	supervision
	of 	teaching
	assistants,
	studio
instruction,
	and
	clinical
	instruction.
	The
	types 	of 	courses
referred
	to 	during 	bargaining
	as
	nonstandard
	were
	courses
	such
as
	one-on-one
	"oboe
	instruction".
	Studio
	dance
	courses
	and
"highly 	individualized"
	instruction
	courses
	were
	included.
What
	is
	clear
	from
	the 	bargaining
	history
	is 	that
	"the
traditional,
	conventional
	academic
	course"
	was
	intended
	to
underlie
	the
	IWC
	definition.
	The
	evidence 	demonstrates
	that
writing
	courses 	are 	the 	type 	of 	conventional 	courses
	which
clearly 	fall
	within 	the
	bilaterally
	agreed-upon
	definition
	of
an
	IWC.
Sections
	A5-7
	of 	the
	workload
	article 	plainly
	do
	not
authorize 	the
	downgrading
	of 	courses 	to
	a
	workload
	value 	of
less
	than 	1.0
	IWC
	if
	those 	courses
	meet
	the 	definition 	in
section
	A2.
	It
	was
	implicit 	throughout 	bargaining 	that
instructional 	offerings 	varied
	from 	course 	to 	course
	and
52

department 	to 	department 	due 	to 	a 	multitude 	of 	factors.
Essentially 	no 	two 	courses 	are 	exactly 	alike. 	The 	parties 	did
not 	agree 	that 	a 	course 	be 	weighed 	at 	less 	than 	1.0 	IWC 	simply
because 	it 	is 	less 	demanding 	in 	one 	area 	compared 	to 	another.
Nothing 	in 	the 	agreement 	supports 	the 	conclusion 	that, 	once 	a
course 	meets 	the 	three 	components 	of 	the 	contractual
definition, 	it 	could 	be 	reduced 	in 	value 	simply 	because 	the
number 	of 	students 	enrolled 	in 	the 	class 	is 	somewhat 	less 	than
that 	of 	another 	or 	because 	the 	outside 	preparation 	required 	of
the 	instructor, 	although 	significant, 	is 	comparatively 	less
than 	for 	another 	class.
It 	is 	axiomatic 	that 	a 	collective 	bargaining 	agreement 	must
be 	read 	as 	a 	whole 	document. 	Specifically, 	all 	sections,
Al-A7, 	were 	meant 	to 	be 	read 	together. 	The 	totality 	of 	the
record 	and 	the 	plain 	contract 	language 	demonstrate 	that
paragraphs 	A3 	and 	AS 	allow 	the 	University 	to 	set 	workload
equivalencies 	for 	courses 	that 	are 	nonstandard 	- 	at 	levels
below, 	at, 	or 	above 	1.0 	IWC 	- 	and 	to 	give 	a 	greater 	value 	to
those 	courses 	which 	have 	higher 	than 	normal 	enrollments 	(e.g.
over 	200), 	require 	an 	unusual 	degree 	of 	contact 	hours, 	etc. 	In
other 	words, 	the 	latter 	provisions 	allow 	the 	University 	to
attach 	greater 	value 	to 	courses 	which 	already meet 	the 	IWC
definition 	but 	which 	place 	unusually 	heavy 	demands 	upon 	the
instructors.
However, 	when 	read 	in 	conjunction with 	section 	Al, 	there 	is
nothing 	in 	the 	contract 	which 	diminishes 	the 	value 	of
53

"traditional"
	academic
	courses
	below
	1.0
	IWC.
	Nor 	do
	the
contractual
	provisions 	vest
	the
	University 	administration 	the
unrestricted
	power
	to
	subjectively
	determine
	whether
	a
	course
is
	"standard"
	or
	whether
	the
	preparation
	required 	to 	teach
	it
is 	"significant".
	As
	represented
	by
	Bickal 	during
negotiations,
	the
	bilateral
	agreement
	contained 	enforceable
standards,
	and
	workload
	levels
	would 	be
	rational
	and
	not
arbitrary.
Contrary 	to
	Respondent's
	argument,
	simply 	because
	the
agreed-to
	language
	restricted
	unit/UCAFT
	participation 	in
setting
	workload
	values
	and
	equivalencies
	and
	prevented
grievances/arbitrations
	in
	that
	area, 	the 	contract
	did 	not 	give
unlimited
	power
	("authorize
	only 	the 	University") 	to 	determine
whether
	a
	course
	fits
	the
	IWC
	definition.
	The
	University
	is
the
	party
	responsible 	for
	such
	determinations,
	but
	is
	required
to
	act
	within 	the 	confines 	of 	the 	express
	language 	of
	the
	MOU,
giving 	deference 	to
	its
	intended
	meaning,
	and 	must
	also 	operate
within 	the 	legal 	collective
	bargaining
	framework
	of
	the
	HEERA.
Bickal's
	conclusion, 	during 	testimony,
	that
	the 	"concept"
	of
"sole 	discretion"
	was
	retained 	in 	the
	MOU,
	is
	simply 	not
supported
	by
	evidence 	of 	statements 	during 	bargaining 	or 	other
objective 	negotiations 	conduct.
	To
	the 	extent 	that
	it
	is
inconsistent
	with 	the
	above,
	it
	is
	not
	credited.
	By
	deciding
that 	all
	writing 	courses 	(at
	UCSD)
	taught
	by
	unit
	members 	were
uniformly 	nonstandard
	and 	by
	deciding 	that 	all
	such
	writing
courses
	had
	a
	workload 	value 	of 	less 	than 	1.0
	IWC,
	the
	campus
54

administration
	deviated
	from
	the
	plain
	language 	of
	the
	MOU
	in
such
	a
	fundamental
	way
	that
	it
	abrogated
	the
	terms
	of
	the
agreement.
	First,
	although
	there
	was
	abundant
	testimony
	from
both
	sides
	regarding 	the
	writing
	courses,
	no
	one 	went 	so
	far
	as
to 	say
	that
	they 	did
	not
	entail
	"significant
	academic
preparation" 	outside
	the
	class
	by
	the
	instructor.
	Indeed,
University
	witnesses
	acknowledged
	that 	at 	least
	during
	a
lecturer's
	first
	year 	teaching 	these 	courses, 	the 	required
preparation
	was
	significant.
	Much
	of
	the
	lecturers'
	testimony
regarding 	the
	level
	of
	preparation
	needed
	for
	writing 	courses
went
	uncontradicted.
The
	most
	that
	can
	be
	concluded
	from
	Chodorow's
	and
	Ticho's
testimony
	is 	that
	some
	writing 	courses, 	in
	some
	of
	the
	UCSD
colleges,
	under
	some
	circumstances,
	when
	taught
	by
	some
instructors, 	entailed 	less 	significant
	academic
	preparation
outside
	the
	class
	than
	a
	"traditional"
	course 	might.
	The
UCSD's
	blanket 	determination
	that
	all
	writing 	courses 	did 	not
meet
	the
	IWC
	definition
	and/or 	did 	require 	less 	preparation
than
	all
	traditional
	1.0 	courses
	has
	no
	basis 	in
	this
evidentiary
	record.
	It
	also
	was
	not
	"rational" 	to 	conclude
that 	all
	lecture 	sections 	did 	not
	require 	significant
	academic
preparation
	simply 	because
	some
	did 	not.
The 	UCSD's
	misapplication 	of
	this
	aspect 	of 	the 	workload
article
	cannot
	be
	dismissed
	as
	a
	mere
	"default 	of
	a
	contractual
obligation."
	Grant
	Joint
	Union 	High 	School
	District, 	supra.
In 	contrast 	to 	the
	MOU's
	silence
	on
	the 	authority 	to 	set
55

maximum
	courseloads, 	the
	agreement
	expressly 	defines
	an
	IWC.
Abundant
	bargaining
	history
	supports 	the
	definition
	in 	the
contract.
The
	misapplication
	amounted
	to
	a
	repudiation
	of 	the
workload
	article
	as
	a
	whole.
	If
	the
	UCSD,
	at
	its
	sole
discretion,
	could 	decide
	that
	any
	course
	is
	nonstandard
	or
	that
it
	could
	accord
	any
	weight
	less
	than 	1.0 	without 	regard
	to
bargaining
	history
	and
	clear 	contract
	definition,
	the
nine-course
	maximum
	would
	have
	no
	purpose
	and
	meaning.
	Any
writing
	course 	taught
	by
	a
	unit
	member
	could
	be
	valued
	at
	any
quantity
	down
	to
	zero 	according 	to 	the
	University's
interpretation.
	Hypothetically,
	a
	lecturer
	could
	be
	required
to 	teach
	18
	(9/.5
	IWC)
	or
	36
	(9/.25
	IWC)
	courses,
	with
	no
	right
to 	grieve
	that
	courseload
	so 	long 	as
	the 	values
	were
	"duly"
established 	for 	the
	department.
	The
	so-called
	"guarantees"
against
	abuse
	-
	overloading
	a
	lecturer
	-
	would 	be
	nonexistent
under
	that 	interpretation.
	As
	evidenced
	by
	contract
	language
and
	bargaining
	history,
	the
	parties
	did
	not
	intend
	this 	result.
In
	its
	apparent 	haste 	to
	promulgate
	a
	campus-wide 	workload
policy
	under
	the
	new
	MOU
	without
	disrupting 	the 	previous
workload
	directive,
	the
	UCSD
	administration 	infringed
	on
	the
actual
	workload
	policy 	established
	through 	the
	bilateral
negotiations 	process.
	When
	it
	issued
	its
	campus-wide
	standards
in 	January 	1987, 	deeming
	all
	writing 	courses 	as 	nonstandard
	and
valuating
	them
	at 	less 	than 	1.0
	IWC,
	it
	thus 	engaged
	in
	a
unilateral 	alteration
	of
	a
	term 	and
	condition 	of 	employment
(workload) 	established 	by 	the
	MOU.
56

C. 	The 	Workloads 	of 	Lecturers 	During 	the
1987-1988 	Academic 	Year
The 	Union 	alleged 	that 	UCSD's 	imposition 	of 	workloads 	upon
lecturers 	Locke, 	Hvolbek, 	etc., 	of 	greater 	than 	six 	courses 	was
a 	unilateral 	change 	in 	the 	established 	practice 	requiring 	a
maximum 	courseload 	of 	six 	in 	their 	departments. 	The 	evidence
demonstrates 	that 	the 	workloads 	of 	each 	of 	those 	lecturers 	were
determined 	in 	the 	interim 	period 	when 	the 	old 	policy under 	the
PPM 	was 	still 	regarded 	as 	controlling. 	The 	parties 	had 	agreed
that, 	in 	such 	cases, 	the 	maximum 	load 	could 	vary. 	Even 	the
evidence 	of 	past 	practice 	leads 	to 	the 	conclusion 	that 	there
was 	no 	unilateral 	change 	resulting 	from 	the 	history
department's 	requiring 	Locke 	and 	other 	lecturers 	in 	the
department 	to 	teach 	more 	than 	six 	courses 	for 	the 	1987-88
academic 	year.
For 	the 	same 	reasons, 	with 	respect 	to 	other 	lecturers 	at
UCSD 	whose 	workloads 	for 	the 	entire 	1986-87 	academic 	year 	were
established 	during 	the 	interim 	period 	before 	the 	issuance 	of
UCSD's 	workload 	policy 	in 	January 	of 	1987, 	those 	workloads
cannot 	be 	used 	as 	a 	basis 	for 	a 	violation 	of 	HEERA.
D. 	Request 	to 	Make 	a 	Portion 	of 	the 	Record 	Confidential
The 	University 	moved 	to 	delete 	from 	a 	portion 	of 	Charging
Party's 	Exhibit 	M the 	opening 	phrase 	of 	the 	sentence, 	"With 	the
unanimous 	support 	of 	the 	department, 	I 	am writing 	to 	recommend
the 	reappointment 	of 	Dr. 	Mary 	Lou 	Locke 	as 	a 	visiting 	lecturer
57

for
	the
	academic
	year
	1986-1987".
	The
	Respondent
	asserted
	that
the 	phrase
	"with
	the
	unanimous
	support 	of
	the
	department"
discloses
	the
	identity
	of
	Locke's
	evaluators
	in
	the
	peer
	review
system,
	a
	process
	which
	is
	intended
	to
	be
	kept
	confidential.
In 	support
	of
	its
	motion,
	Respondent
	cites
	Kahn
	v.
	Superior
Court 	of
	the
	County
	of 	Santa
	Clara
	(1987}
	188
	Cal.App.3d
	752;
Board
	of
	Trustees
	v.
	Superior
	Court
	(1981)
	119
	Cal.App.3d
	516;
and 	King
	v.
	Regents
	of
	University
	of
	California
	(1982)
	138
Cal.App.3d
	812.
In
	King
	v. 	Regents,
	the
	Court
	of
	Appeal
	held
	that
	an
unsuccessful 	candidate 	for 	tenure
	was
	not
	entitled
	to
	complete
disclosure
	of
	his
	personnel
	file
	for 	the
	purposes 	of
discovering 	the
	names
	of
	his 	evaluators
	where 	he 	had
	already
been 	provided
	a
	summary
	of
	that
	file.
In
	Kahn
	v. 	Superior 	Court, 	supra, 	the
	Court
	refused
	to
allow
	an
	unsuccessful 	candidate 	for
	a
	faculty 	position 	to
depose
	a
	tenured
	faculty 	professor 	for 	the
	purpose 	of
	inquiring
into 	his 	statements,
	motives
	and
	conduct
	in
	a
	meeting
	that
resulted 	in 	the
	plaintiff's
	rejection
	for 	the 	appointment.
	The
Court 	held
	that
	the 	tenured
	professor's 	evaluative
	comments
	at
the
	meeting 	were
	constitutionally 	protected
	from
	disclosure.
In
	Board
	of 	Trustees 	v. 	Superior 	Court,
	a
	defamation
litigant
	was
	disallowed 	the 	blanket 	right 	to 	discover
	all
personnel, 	tenure, 	promotion,
	and
	investigative 	files 	related
to 	his
	former 	employment
	with 	the 	University, 	in 	part
	on
	the
basis 	that
	much
	of 	the 	information
	was
	confidential.
58

The 	Charging 	Party 	is 	not 	here 	seeking 	disclosure 	of 	any
document 	generated 	from 	the 	University's 	tenure 	review
process. 	There 	is 	no 	evidence 	that 	the 	author's 	recommendation
was 	based 	upon 	information 	that 	carried 	any 	promise 	of
confidentiality 	or 	that 	the 	information 	was 	a 	product 	of 	the
University's 	peer 	review 	system. 	The 	letter 	itself 	was 	never
meant 	to 	be 	confidential. 	Its 	author 	testified 	that 	there 	was
nothing 	confidential 	about 	the 	letter 	and 	that 	he 	had 	made 	it
available 	to 	all 	of 	his 	departmental 	colleagues. 	Mary 	Lou
Locke, 	the 	subject 	of 	the 	letter, 	testified 	extensively 	about
the 	related 	set 	of 	facts. 	The 	Charging 	Party 	had 	a 	copy 	of 	the
letter 	prior 	to 	this 	hearing. 	The 	letter 	does 	not 	disclose 	the
identities 	of 	any 	individuals, 	their 	subjective 	deliberations,
or 	thought 	processes. 	At 	most, 	it 	indicates 	a 	general
conclusion 	of 	the 	department's 	recommendation. 	Even 	in 	cases
such 	as 	King 	v. 	Regents, 	the 	Court 	recognized 	an 	unsuccessful
tenure 	candidate's 	right 	to 	receive 	a 	comprehensive 	summary 	of
the 	tenure 	file. 	The 	letter 	at 	issue 	herein 	does 	not 	even
remotely 	approach 	the 	type 	of 	information 	allowed 	to 	be
discovered 	under 	the 	cases 	cited 	by 	Respondent. 	For 	all 	of 	the
above 	reasons, 	the 	motion 	is 	denied.
E. 	Attorneys' 	Fees
The 	Respondent 	requested 	attorneys' 	fees 	on 	the 	grounds
that 	the 	Charging 	Party's 	evidence 	failed 	to 	support 	even 	a
recognizable 	legal 	theory 	and 	that 	its 	litigation was 	frivolous.
59

The
	PERB
	will
	order
	a
	Charging
	Party 	to
	pay
	attorneys
	fees
in
	unfair
	labor
	practice
	cases
	where
	the
	charge
	is
	without
arguable 	merit
	and 	was
	brought
	in
	bad
	faith.
	Chula
	Vista 	City
School
	District
	(1982)
	PERB
	Decision
	No.
	256.
	That
	standard
has
	not
	been
	met
	here.
	Even
	that
	aspect
	of
	the
	charge
	that
	has
been
	deemed
	not
	to
	constitute
	a
	violation
	-
	the 	imposition
	of
	a
uniform
	nine-course
	maximum
	by
	the 	Vice-Chancellor's
	office
	-
was
	not 	without 	arguable
	merit.
	As
	noted
	earlier,
	not
	all
	of
the 	evidence
	on
	that
	issue
	was
	one-sided.
	Pursuit
	of
	a
	"weak
issue"
	does
	not
	constitute
	the
	indefensible
	form
	of
litigiousness
	warranting
	an 	award
	of
	attorneys' 	fees.
V. 	CONCLUSION
Based
	upon
	the
	foregong
	discussion,
	and
	the
	entire
evidentiary
	record,
	it
	is
	determined
	that
	the
	Respondent
	did
not
	violate
	the
	HEERA
	by
	setting
	a
	uniform
	campus-wide
	workload
standard
	of 	nine
	instructional
	workload
	courses 	(over
	three
academic
	quarters) 	at
	the
	UC
	San 	Diego 	campus.
	That
	allegation
is
	hereby 	dismissed.
It
	is
	concluded
	that
	the
	Respondent
	repudiated
	vital
aspects 	of 	the
	MOU's
	workload
	provision
	when
	it
	made 	a
	blanket
determination 	that 	at
	UCSD
	all
	writing
	program
	courses 	taught
by
	lecturers
	were 	nonstandard
	-
	i.e.,
	they 	did 	not 	conform
	to
the
	definition
	of
	an
	instructional
	workload 	course
	-
	and 	when
it
	accorded
	all
	such 	courses
	a
	value 	of 	less 	than 	1.0
	IWC. 	By
this
	conduct, 	the 	University 	violated
	HEERA
	section 	357l(c)
and,
	derivatively, 	357l(a)
	and
	(b).
60

VI.
	REMEDY
The
	PERB	
is	
empowered
	to
	issue
	a
	decision
	and
	order
directing
	an
	offending
	party
	to 	take
	such
	affirmative 	action
	as
will 	effectuate
	the
	policies
	of
	the
	HEERA.
	Accordingly,
	the
University
	is
	ordered 	to 	cease
	and
	desist
	from
	unilaterally
changing
	the
	workload
	policy
	embodied
	in 	the
	MOU.
The
	University's
	valuation
	of
	the
	writing
	courses
	at
	less
than 	1.0
	IWC
	had
	adverse
	effects
	upon
	the
	wages
	of
	lecturers
	at
UCSD.
	It
	is
	appropriate
	that
	writing
	program
	lecturers
	who
received
	workload
	commitments 	from
	the 	University
	on
	or
	after
January
	1,
	1987,
	and
	who
	were
	adversely
	affected
	by
	the
improper
	valuation
	of
	their
	courses
	at 	less
	than 	1.0
	IWC
	be
made
	whole
	via
	a
	monetary 	compensation.
	All
	amounts
	awarded
	to
affected 	unit
	members
	pursuant 	to 	the
	above 	must
	additionally
include
	interest
	at
	ten
	(10)
	percent
	per
	annum.
	Writing
program
	lecturers 	entitled
	to
	compensation 	under
	the
	above
shall
	also
	be
	made
	whole
	for
	any
	other 	losses,
	such 	as
benefits,
	leave
	credits, 	etc.,
	they
	may
	have
	suffered
	as
	a
result
	of
	the
	improper
	valuation
	of 	the 	writing 	courses.
Disputes 	regarding
	make-whole
	provisions
	above 	can 	be
	resolved
in
	compliance 	proceedings 	before 	the
	PERB.
It
	is
	also 	appropriate 	that
	the 	University
	be
	required 	to
post
	a
	notice 	incorporating 	the
	terms 	of
	this 	order.
	The
notice
	should
	be
	subscribed
	by 	an
	authorized 	agent 	of 	the
Employer,
	indicating 	that
	it
	will
	comply
	with 	the 	terms
thereof.
	The
	notice 	shall 	not 	be 	reduced 	in 	size, 	defaced,
61

altered
	or
	covered
	by 	any
	other
	material.
	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
Act
	that
	employees 	be
	informed
	of
	the
	resolution
	of
	the
controversy
	and
	will
	announce
	the
	Employer's
	readiness
	to
comply
	with
	the
	ordered
	remedy. 	See
	Placerville
	Union
	School
District
	(1978)
	PERB
	Decision
	No.
	69.
	In
	Pandol
	and
	Sons
	v.
Agricultural
	Labor
	Relations
	Bd.
	(1979)
	98
	Cal.App.3d 	580,
	587
the
	California
	District
	Court 	of
	Appeals 	approved
	a
	similar
posting
	requirement.
	See
	also
	NLRB
	v. 	Express
	Publishing
	Co.
(1941)
	312
	U.S.
	426 	[8
	LRRM
	415].
VII.
	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,
	its
agents
	and
	its
	representative 	shall:
A.	
CEASE
	AND
	DESIST
	FROM:
Misapplying
	Article
	XXV
	of 	the
	Memorandum
	of
Understanding
	between
	the
	Regents
	of 	the 	University
	of
California
	and
	the 	University 	Council,
	American
	Federation 	of
Teachers
	in
	such
	a 	way
	as
	to 	value 	writing
	program
	classes 	at
less
	than 	1.0 	of
	an
	instructional
	workload 	course.
B.	
TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(1) 	Compensate
	all 	University 	of 	California
	San 	Diego
writing 	program 	lecturers
	who
	received 	workload 	commitments
62

from
	the 	University
	on
	or
	after
	January
	1,
	1987,
	for
	all
	losses
sustained
	as
	a
	result
	of
	the
	unlawful
	ipterpretation
	of
	the
memorandum
	of
	understanding.
	To
	this
	amount
	shall
	be
	added
interest
	at
	ten
	(10)
	percent
	per
	annum.
(2)	
Make
	whole
	all
	lecturers
	in
	the 	category
immediately
	above
	for
	any
	other 	losses
	-
	benefits,
	leave
credits,
	etc.
	-
	they
	may
	have
	suffered
	as
	a
	result
	of
	the
University's
	valuation
	of
	their
	writing
	classes 	at
	below
	1.0
IWC.
(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
	campuses
	and
	all
	other
	work
	locations 	for
	thirty
	(30)
consecutive
	workdays. 	Copies
	of
	this
	notice,
	after
	being 	duly
signed
	by 	an
	authorized
	agent 	of 	the 	University,
	shall
	be
posted 	within 	ten
	(10) 	workdays 	from
	service
	of 	the
	final
decision 	in
	this
	matter.
	Reasonable
	steps
	shall
	be
	taken 	to
insure 	that
	the 	notice
	is
	not 	reduced
	in
	size, 	altered,
	defaced
or 	covered
	by 	any
	other 	materials.
(4)	
Upon
	issuance 	of
	a
	final 	decision,
	make
	written
notification
	of 	the 	actions 	taken 	to
	comply
	with 	these 	orders
to 	the
	Los
	Angeles 	Regional
	Director 	of 	the 	Public
	Employment
Relations
	Board
	in 	accordance 	with 	his 	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
63

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,
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
	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:
	April
	15, 	1988
64
Manuel 	N. 	Melgoza
Administrative
	Law
	Judge
7	
-....'.

PROOF
	OF
	SERVICE
	BY
	MAIL
C.C.P.
	1013a
I
	declare
	that
	I 	am 	a
	resident
	of
	or
	employed
	in
	the
	County
of
	Sacramento,
	California.
	I
	am
	over
	the
	age
	of
	18
	years
	and
	not
a
	party
	to
	the 	within
	entitled
	cause.
	The
	name
	and
	address 	of
	my
residence 	or
	business
	is
	Public
	Employment
	Relations
	Board,
1031
	18th
	Street,
	Sacramento,
	California,
	95814-4174.
	I 	am
readily
	familiar
	with
	the 	ordinary
	practice
	of
	the 	business
	in
collecting,
	processing
	and
	depositing
	correspondence
	in 	the
United
	States
	Postal
	Service
	and
	that
	the
	correspondence
	will
	be
deposited 	the
	same
	day
	with 	postage 	thereon
	fully
	prepaid.
On
	September
	28, 	1989,
	I
	served
	the 	attached
	PERB
	Decision
No.
	771-H
	in
	Regents
	of
	the 	University 	of
	California,
	Case
	No.
LA-CE-180-H 	on
	the
	parties
	listed
	below
	by
	placing
	a
	true
	copy
thereof
	enclosed
	in
	a
	sealed
	envelope
	for
	collection
	and
	mailing
in 	the
	United
	States 	Postal
	Service 	following
	ordinary 	business
practices
	at
	Sacramento,
	California,
	addressed 	as 	follows:
Michael
	Melman,
	Director,
Labor
	Relations
University
	of
	San 	Diego
La
	Jolla,
	CA
	92093
Thomas
	Dublin,
	President
University
	Council-AFT
P.O.
	Box 	2181
Del 	Mar,
	CA
	92014
Marcia
	J.
	Canning,
	Attorney
Office
	of
	the
	General 	Counsel
University 	of
	California
590
	University
	Hall
Berkeley,
	CA
	94720
Lawrence 	Rosenzweig,
	Attorney
2001
	Wilshire 	Blvd., 	Suite
	600
Santa
	Monica,
	CA
	90403
I
	declare
	under
	penalty 	of 	perjury 	that 	the 	foregoing
	istrue
	and
	correct
	and
	that 	this 	declaration
	was
	executed
	on
September 	28, 	1989,
	at 	Sacramentor,;~f:oi•~,'
Annette 	Bridges
(Type
	or 	print
	name)
~ 	~
(Sign~