Regents of the University of California (University of California-American Federation of Teachers) (PERB 0806H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	COUNCIL-AMERICAN
FEDERATION OF 	TEACHERS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case No. 	LA-CE-252-H
PERB Decision No. 	806-H
May 7, 	1990
Appearances: 	Lawrence Rosenzweig, 	Attorney, 	for University
Council-American Federation of Teachers; 	Marcia J. 	Canning,
Attorney, 	for Regents of the University of California.
Before Craib, 	Shank and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by the
University Council-American Federation of 	Teachers 	(UC-AFT) 	of
a 	Board agent's dismissal 	(attached hereto) 	of 	its 	charge against
the Regents 	of the University of California 	(University). 	In its
charge, 	UC-AFT alleged 	that 	the 	University unilaterally changed
the 	criteria 	for 	the 	reappointment 	of 	bargaining unit 	members
holding 	faculty 	lecturer positions 	at 	the 	University's 	Riverside
and 	Santa 	Barbara 	campuses. 	This 	conduct was 	alleged 	to be 	in
violation of section 3571(a), 	(b) 	and 	(c) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA or Act).1 The Board agent
EERA
It 	shall 	be unlawful 	for the higher 	education
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1
HHEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571 	states, 	in relevant part:

dismissed the 	charge 	for 	failure 	to 	state 	a prima 	facie 	case.
We have reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt 	it as 	the decision of the Board itself.
We 	further 	address 	an argument 	reiterated by UC-AFT on appeal,
which we 	find was 	correctly rejected by 	the 	Board 	agent.
DISCUSSION
UC-AFT 	claims 	that 	an earlier decision by a 	PERB
administrative 	law 	judge 	(ALJ) 	in University Council-American
Federation of Teachers v. 	Regents 	of the University 	(1988) 	PERB
Hearing Officer Decision No. 	HO-U-378-H 	is 	controlling 	in this
case and requires 	issuance of 	a 	complaint. 	As 	the Board agent
pointed 	out 	in response to 	this 	contention, 	PERB hearing officer
decisions 	are 	nonprecedential 	decisions which 	are 	binding 	on 	the
parties 	only with respect 	to 	the 	specific 	controversy 	involved.2
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by 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.
2PERB Regulation 32215 	states:
A 	Board 	agent 	shall 	issue 	a written proposed
decision or 	submit 	the record of 	the 	case 	to
the 	Board 	itself 	for decision pursuant 	to
instructions 	from the 	Board 	itself. 	The
Board 	shall 	serve 	the proposed 	decision on
each party. 	Unless 	expressly adopted by the
N	2

Moreover, 	the 	Board agent 	correctly 	found that 	the 	case
presented 	to 	the 	hearing 	officer 	is 	distinguishable 	from 	the
present dispute, 	inasmuch as 	the earlier case 	involved only-
contractual 	provisions 	governing 	reappointment 	of 	lecturers
after six years of 	service. 	The ALJ, 	in that case, 	found that
conducting 	searches3 prior to 	faculty reappointments 	at 	six 	years
or beyond was 	a violation of 	the 	terms 	of 	the memorandum of
-
understanding 	(MOU). 	The critical 	contract 	language governing
the dispute 	in Hearing Officer Decision No. 	HO-U-378-H 	is 	found
at Article VII(C) 	which provides, 	in pertinent part:
C. 	Post 	Six Years 	of 	Service
1. 	Reappointments
a) 	Reappointments which commence at or
beyond six 	(6) 	years 	of 	service at
the 	same 	campus 	can be made only
when the 	following 	criteria 	have
been met:
1) 	there 	is 	a continuing or
anticipated 	instructional
need 	as 	determined by 	the
University: 	or, 	there is
a need 	for 	teaching 	so
specialized 	in 	character
that 	it 	cannot be done
with 	equal 	effectiveness
by 	regular 	faculty
members 	or by 	strictly
temporary 	appointees;
and, 	if so found,
Board itself, 	a proposed or 	final 	Board agent
decision, 	including supporting rationale,
shall be without precedent 	for future cases.
3A 	"search" 	in this 	context comprises 	a 	competitive process
whereby 	an 	incumbent's 	qualifications 	are 	measured 	against 	the
qualifications 	of 	a university-generated pool 	of 	outside
candidates.
w3

2) 	t;he 	instructional
performance 	appropriate
to 	the 	responsibilities
of 	the 	faculty/instructor
in the unit has 	been
determined 	by 	the
University to have been
excellent, 	based upon the
criteria 	specified 	in
Section E.
b) 	Provided 	that 	the 	criteria 	set
forth 	in Section C.1.a) continue
to be met, 	reappointments 	shall be
made for three-year periods. 	. 	. 	.
(Emphasis 	added.)
The ALJ determined that, 	with respect 	to reappointment
of post-six year faculty lecturers, 	the University's 	"sole
discretion" 	pursuant to 	section 	(A)(9) 	of the MOU is 	subject to
the 	limitations 	contained in section 	(C)(l)(a) 	because of 	the
"except as provided herein" 	language of 	section 	(A)(9).4 Section
(C)(l)(a) 	specifically provides 	for a 	two-step reappointment
process, 	and, 	the ALJ held, 	the University's attempt to
implement 	its 	"search" 	policy 	in connection with post-six-year
reappointments 	altered the 	agreement 	such that 	it became 	a 	three-
step process. 	The ALJ pointed out 	that 	"(w)hile 	the 	Union
ultimately 	conceded to 	the 	University 	a wide degree 	of 	discretion
regarding 	specification 	of 	criteria 	for reappointments 	during 	a
unit member's 	first 	six years 	of 	service, 	it was 	able to achieve
greater protections 	for 	longer term employees, 	including
entitlement 	to 	a 	specific 	two-step process 	for 	reappointment
under 	section 	C.1.a)." 	(Hearing Officer Decision No. 	HO-U-378-H,
4See page 	1 	of 	attached warning letter for text of 	(A)(9).
4

at 	p.34.)
There 	exists 	a material difference between the 	facts
presented to 	the ALJ 	in Hearing Officer Decision No. 	HO-U-378-H
and the 	facts 	presented by UC-AFT's 	charge 	in the 	current 	case.
The parties 	agreed 	in their MOU to 	treat 	the reappointment 	of
longer term 	(i.e., 	six years or beyond) 	faculty lecturers 	in such
a way 	that 	the 	University would 	have 	limited discretion 	in 	the
decision-making process. 	In contrast, 	the provisions 	of the MOU
pertaining to 	the reappointment of 	lecturers with 	less 	than 	six
years 	of 	service5 are 	not 	susceptible to 	an 	interpretation that
places 	the 	same 	limitations 	upon the University's 	discretion.
Therefore, 	the earlier PERB determination is 	not applicable 	to
the present 	controversy and 	cannot be binding 	on these parties 	as
argued by UC-AFT.
ORDER
Based on the entire record in this 	case, 	it 	is 	ORDERED 	that
the unfair practice charge 	in Case No. 	LA-CE-252-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Craib and Shank 	joined 	in this 	Decision.
5See page 	3 	of 	attached warning 	letter.
5

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
December 22, 	1989
Lawrence 	Rosenzweig
2001 Wilshire Blvd., 	Suite 	600
Santa Monica, 	CA 90403
Re: 	University Council 	- American Federation of Teachers 	v.
Regents 	of 	the 	University 	of 	California
Unfair Practice Charge No. 	LA-CE-252-H
DISMISSAL 	LETTER
Dear Mr. 	Rosenzweig:
You have 	filed 	a 	charge on behalf 	of 	the American Federation of
Teachers 	(AFT) 	in which you allege 	that the University of
California 	(University) 	unilaterally 	imposed 	a 	search 	requirement
concerning 	faculty 	lecturers 	seeking 	reappointment 	at 	its
Riverside 	and Santa Barbara 	campuses. 	By such conduct, 	you
allege that the 	University violated 	sections 	3571(a), 	(b) 	and 	(c)
of 	the 	Higher Education Employer-Employee Relations Act 	(HEERA).
I 	indicated to you 	in my attached 	letter dated November 	21, 	1989,
that 	allegations 	contained 	in the 	charge did 	not 	state 	a prima
facie 	case. 	You were 	advised 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised 	that 	unless 	you amended 	these
allegations 	to 	state 	a prima 	facie 	case, 	or withdrew them prior
to November 29, 	1989, 	the charge would be dismissed.
On November 28, 	1989, 	you requested and 	I 	granted an extension of
the dismissal date to December 5, 	1989. 	On November 30, 	1989,
you 	communicated 	your 	objections 	to 	me with 	respect 	to 	the
warning 	letter. 	During our 	conversation, 	you 	stated that 	you 	did
not allege 	in the 	charge a 	change 	in past practice, 	and that 	the
warning 	letter's 	reliance 	on 	Marysville 	Joint 	Unified 	School
District 	(1983) 	PERB Decision No. 	314 was 	therefore misplaced.
On December 4, 	1989, 	you filed a First Amended Charge. 	The First
Amended Charge 	is 	essentially the 	same 	as 	the original 	charge,
except 	you have 	added 	the 	fact 	that 	UC 	Riverside 	and 	UC 	Santa
Barbara 	had 	already 	engaged 	in 	affirmative 	action 	searches 	prior
to 	appointing the present 	incumbent 	employees 	to 	their positions.

The 	First Amended Charge 	still 	does 	not 	allege 	a prima 	facie
case. 	It realleges 	that Charging Party 	learned 	in November 	1988,
that 	searches 	were 	being required 	of 	lecturers 	with between 	three
and 	six years 	of 	service 	at 	UC Riverside; 	and in January 	1989,
with respect 	to 	lecturers 	at 	UC 	Santa 	Barbara who 	taught beyond
two years, 	but 	less 	than six years.
In conversations with the 	regional 	attorney, 	you 	stated 	that 	the
University had 	not 	earlier 	conducted 	searches 	attendant 	to 	the
reappointment of 	such 	lecturers. 	You argued that 	these 	searches
are 	not authorized by Article VII 	of 	the MOU. 	Article VII(9)
provides, 	however, 	that reappointment decisions are to be made at
the 	sole discretion of the University, 	except as provided 	in
other parts 	of Article VII. 	While Article VII 	contains
limitations 	on the University's 	evaluation procedures, 	it does
not 	limit 	its 	ability to 	conduct 	a 	competitive 	search prior to
the 	reappointment 	of 	individuals 	who have 	served 	less 	than 	six
years. 	Thus, 	the 	"sole discretion" 	language is controlling, 	and
the 	searches 	at 	issue were not prohibited by the contract. 	The
fact 	that 	the 	University has 	not 	before 	conducted 	searches
outside 	the 	context of an 	initial 	affirmative 	action 	search, 	does
not change this 	result. 	Pursuant to Marysville Joint Unified
School District, 	supra, 	"Where the contractual 	language is 	clear
and unambiguous, 	it 	is 	unnecessary to go beyond the plain
language 	of 	the 	contract 	itself 	to 	ascertain 	its 	meaning." 	For
these reasons, 	the charge is dismissed.
Right to Appeal
Pursuant 	to Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of 	this 	dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must 	be 	actually received by the 	Board
itself 	before the 	close of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified 	or Express 	United 	States 	mail postmarked 	no
later than the 	last date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party 	may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date of 	service of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).
N	2

Service
All documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon 	a 	party 	or 	filed
with 	the 	Board 	itself. 	(See California Administrative Code,
title 	8, 	section 	32140 	for the required contents 	and a 	sample
form.) 	The document will 	be 	considered properly 	"served" 	when
personally delivered 	or deposited 	in the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously noted 	address. 	A request 	for an 	extension must
be 	filed at 	least 	three 	calendar days 	before the 	expiration of
the 	time 	required 	for 	filing the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of each other
party 	regarding 	the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service 	of 	the 	request 	upon 	each party 	(California
Administrative Code, 	title 8, 	section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
J e n n i f e r 	A. 	Chambers
Regional 	Attorney
U
Attachment
cc: 	Marcia J. 	Canning
University 	Counsel
The 	Regents 	of 	the 	University of 	California
Office 	of 	the General 	Counsel
590 	University 	Hall
Berkeley 	CA 	94720
W
By'----:--------
V
3

- STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
November 21, 	1989
Lawrence 	Rosenzweig
2001 Wilshire Boulevard, 	Suite 	600
Santa Monica, 	CA 	90403
Re: 	University Council 	- American Federation of Teachers 	v.
Regents 	of 	the 	University 	of 	California
Unfair Practice Charge No. 	LA-CE-252-H
WARNING 	LETTER
Dear Mr. 	Rosenzweig:
In this 	charge, 	the American Federation of Teachers 	(AFT)
alleges 	that 	the 	University 	of 	California 	(University)
unilaterally 	imposed 	a 	search1 requirement 	concerning 	faculty
lecturers 	seeking 	reappointment 	at 	its 	Riverside 	and 	Santa
Barbara campuses. 	By this 	conduct, 	AFT alleges that the
University violated sections 	3571 (a), 	(b) 	and 	(c) 	of the Higher
Education Employer-Employee 	Relations Act 	(HEERA).
The 	charge 	and 	my 	investigation revealed 	the 	following 	facts.
AFT 	represents 	the 	non-tenured 	faculty 	members 	within 	the
University 	system. 	It 	negotiated 	its 	first 	memorandum 	of
understanding with 	the 	University 	in July 	1986. 	Reappointments
made after an incumbent's 	second, 	third, 	fourth, 	and fifth years
of 	service are governed by Article VII 	of the parties' 	(1987-90)
contract, 	which provides, 	in pertinent part:
Article VII. 	APPOINTMENT
A. 	General 	Provisions
9. 	All 	appointment 	and reappointment decisions 	shall
be 	made 	at 	the 	sole 	discretion of 	the 	University 	except
as 	provided 	herein and 	shall 	not be 	subject 	to Article
XXXIII. 	Grievance Procedure 	except for procedural
violations. 	(Emphasis added)
1 A 	"search" 	refers 	to 	a process 	by which 	incumbents 	seeking
reappointment 	are 	required 	to 	compete 	against 	a 	University
generated pool 	of 	applicants. 	According to 	the 	University,
searches 	are 	an 	integral part 	of 	its 	affirmative 	action program.

B. 	Initial 	Appointment 	and 	Reappointment
1. 	Appointment 	and 	Reappointment
a) 	Normally, 	the 	initial 	appointment
shall 	be 	for a period of 	service 	of
one 	(1) 	academic year or less...
b) 	Reappointment(s) 	during the 	first
six 	(6) 	years 	of 	service at the
same 	campus 	may be 	for a period 	of
up to three 	(3) 	academic years.
c) 	The duration of 	the 	appointment 	or
reappointment 	shall 	be 	at 	the 	sole
discretion 	of 	the 	University,
except as 	provided 	in this Article.
2. 	Evaluation
a) 	Any reappointment 	shall 	be preceded
by 	an 	evaluation of 	the performance
of 	the 	faculty/instructor 	in 	the
unit which 	shall 	be 	undertaken 	in
accordance with 	each 	campus'
applicable 	review procedure 	in
effect at the time.
b) 	As 	soon as 	possible prior 	to 	the
initiation 	of 	an 	evaluation
faculty/instructors 	in 	the 	unit
shall 	be notified of 	the purpose,
timing, 	criteria, 	and procedure
that will 	be 	followed.
c) 	Evaluations 	of 	individual
faculty/instructors 	in 	the 	unit 	for
reappointment 	are 	to 	be 	made 	on 	the
basis 	of demonstrated 	competence 	in
the 	field 	and 	demonstrated 	ability
in 	teaching 	and 	other 	assigned
duties 	which 	may 	include 	University
co-curricular 	and 	community
service. 	Reappointment to the
senior rank requires, 	in addition,
service 	of 	exceptional 	value 	to 	the
University.
d) 	Faculty/instructors 	in 	the unit may
provide 	letters 	of 	assessment 	from
others 	including 	departmental

faculty/instructors 	in the unit 	to
the department chair, 	the chair's
equivalent 	or 	other designated
official 	as 	part 	of 	the 	evaluation
process.
The charge alleges that, 	on or about November 	15, 	1988, 	Richard
Wattenberg, 	the AFT President at U.C. 	Riverside, 	was 	informed by
the 	administration 	that 	it 	intended 	to 	require 	lecturers 	seeking
reappointment who had taught between three and 	six years, 	to
participate 	in 	a 	competitive process 	whereby the 	incumbent's
qualifications 	would 	be 	compared with 	those 	of 	outside 	candidates
solicited by the University. 	Similarly, 	at the 	University's
Santa Barbara 	campus, 	AFT representatives were 	informed by the
University that, 	pursuant to 	its policy, 	lecturers 	seeking
reappointment beyond 	six 	quarters 	(two years) 	would be 	required
to participate 	in a competitive 	search process. 	AFT alleges 	that
requiring 	searches 	at 	such 	intervals 	is 	not 	consistent with the
past practice.
Discussion
For the reasons which 	follow, 	the 	charge as 	currently alleged,
does 	not 	state a prima facie 	case.
Article VII(A)(9) 	provides 	that all 	reappointment decisions 	of
the 	University 	shall 	be made 	at 	its 	sole discretion of 	the
"except as provided herein." 	Thus, 	the 	language grants 	the
University wide discretion, 	except as 	it 	is 	limited by 	specific
provisions 	in the 	contract 	governing reappointment. 	Although the
contract 	sets 	forth procedures 	for an incumbent's 	evaluation, 	it
in 	no 	manner 	contains 	language 	limiting the 	University's 	ability
to conduct an academic 	search. 	Thus, 	it 	is 	clear that the union,
by agreeing to Article VII, 	gave 	the University a wide degree of
discretion 	concerning a 	lecturer's 	reappointment 	during his 	or
her first 	six years 	of service. 	In light of the clear contractual
language, 	extrinsic 	evidence of past practice is 	not relevant.
Marysville Joint Unified School 	District 	(1983) 	PERB Decision No.
314'.
2 It 	should be 	noted 	that 	the 	charge 	suggests 	that
Administrative 	Law Judge 	Manuel 	Melgoza's 	decision 	in 	University
Council-American Federation of 	Teachers 	v. 	Regents 	of 	the
University of California 	(1988) 	Unfair Practice Case No. 	LA-CE-
205-H 	instructs 	the 	issuance of 	a 	complaint 	in the 	instant 	case.
Decisions of PERB hearing officers, 	however, 	are nonprecedential
decisions 	which 	are 	binding 	on 	the parties 	only with 	respect 	to
the 	specific 	controversy involved. 	Moreover, 	this 	decision 	is
inapposite 	inasmuch 	as 	it 	interpreted 	contractual 	language
governing 	the 	reappointment process 	for 	lecturers 	who had
completed 	six years 	of 	service.

For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If 	there are any 	factual 	inaccuracies 	in
this 	letter or any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge, 	contain all 	the 	facts 	and allegations you wish to make,
and- - must 	be 	signed under penalty of perjury by the 	charging
party. 	The 	amended 	charge must be 	served on the respondent 	and
the original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you before
November 29, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Si^oerely,
Jennifer A. Chambers
Regional Attorney
' 	I