Regents of the University of California (University of California-American Federation of Teachers) * * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359 (PERB 0826H)

OVERRULED 	by 	Long 	Beach 	Community 	College 	District 	(2003)
PERB 	Decision 	No. 	1564 	and 	Los 	Angeles 	Unified 	School
District 	(2014) 	PERB 	Decision 	No. 	2359
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
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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) 	Case No. 	SF-CE-272-H
LA-CE-235-H
PERB Decision No. 	826-H
July 	3, 	1990
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Appearances: 	Leonard, 	Carder & 	Zuckerman by William H. 	Carder,
Attorney, 	for University Council-American Federation of 	Teachers;
Marcia J. 	Canning, 	University Council, 	for The Regents 	of the
University 	of 	California.
Before Hesse, 	Chairperson; 	Craib and Camilli, Members.
DECISION
CAMILLI, 	Member: 	These consolidated cases 	are before the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	on 	exceptions
taken by both parties 	to 	an administrative 	law 	judge's 	(ALJ)
proposed decision 	(attached hereto). 	The ALJ 	found 	that 	the
Regents 	of 	the 	University 	of 	California 	(University 	or 	UC)
violated 	the 	Higher 	Education Employer-Employee 	Relations 	Act
(HEERA or Act) 	section 3571(a), 	(b) 	and 	(c)1 at the Santa Cruz
HEERA 	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, 	restrain, 	or coerce
________________ )

campus 	by 	failing 	to 	appoint post-six-year 	lecturers 	in the
writing program to 	three-year 	terms 	in accord with 	the 	memorandum
of 	understanding 	(MOU) 	currently 	in effect between the parties,
thereby 	unilaterally 	changing 	its 	policy 	regarding 	such
appointments. 	The ALJ dismissed Case No. 	LA-CE-235-H, 	in which a
similar violation was 	alleged 	to 	have 	occurred on the 	Los 	Angeles
(UCLA) 	campus, 	for lack of timeliness.
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.
We have reviewed the 	entire record 	in this 	case, 	including
the proposed decision, 	the 	exceptions 	filed by both parties 	and
responses 	thereto, 	and 	finding the ALJ's 	recitation of the 	facts
to be 	free 	from prejudicial 	error, 	we adopt them as 	our own.
Consistent with the 	following discussion, 	we affirm the ALJ's
conclusions 	of 	law, 	with the 	exceptions 	of 	the remedy awarded 	in
Case No. 	SF-CE-272-H, 	and the dismissal of Case No. 	LA-CE-235-H
for 	lack of 	timeliness.
DISCUSSION
I. 	Case No. 	LA-CE-235-H
Survival 	of 	the 	Doctrine 	of 	Equitable Tolling
The 	doctrine of 	equitable 	tolling provides 	that where 	a
grievance has 	been 	filed 	in an effort 	to 	resolve 	the 	same dispute
which is 	the 	subject of the charge, 	the 	statute of 	limitations 	is
N	2

tolled during the period of 	time 	the 	grievance 	is 	being pursued
if: 	(1) 	the 	charging party reasonably and in good 	faith pursues
an alternate method of relief; 	and 	(2) 	tolling does 	not 	frustrate
the purpose 	of 	the 	statutory 	limitation period 	by 	causing
surprise 	or prejudice to the respondent. 	(Victor Valley
Community College District 	(1986) 	PERB Decision No. 	570.) 	In
Victor Valley, 	the Board also held that, 	in a unilateral 	change
case, 	equitable tolling of the 	statute of 	limitations 	is 	achieved
while 	an 	employee 	grieves 	based upon the 	same 	unilateral 	change
which the union now seeks 	to vindicate through a 	charge, 	as 	the
union is 	an aggrieved party in a unilateral 	change 	case. 	(Id.,
at p. 	15.)
The 	University Council-American 	Federation of 	Teachers 	(AFT
or Federation) 	excepts 	to a comment 	in the proposed decision that
the doctrine 	of 	equitable 	tolling may not 	survive 	the 	case 	of
California State University. 	San Diego 	(1989) 	PERB Decision
No. 	718-H. 	The Federation argues 	that California 	State
University. 	San Diego was 	incorrect and that 	equitable 	tolling 	is
still 	a 	viable theory.2 We 	find that 	the 	theory of 	equitable
tolling does 	not 	survive California 	State 	University. 	San Diego
for the 	reasons 	that 	follow.
Cases 	construing the 	National 	Labor Relations 	Act 	(NLRA)
consider 	the 	6-month 	statute 	of 	limitations 	to 	be 	an affirmative
defense, 	and the proponent of 	such defense has 	the burden of
2The 	Federation's 	exception based upon 	its 	disagreement with
California 	State University 	(San Diego) 	is 	found to be without
merit as 	that 	case has not been overruled, 	and 	is 	good PERB 	law.
33

establishing 	notice 	on the part 	of 	the 	charging party.3 (Harvard
Folding Box Company 	(1984) 	273 NLRB 841 	[118 LRRM 	1323]; 	Strick
Corp. 	(1979) 	241 NLRB 210 	[100 LRRM 1491].) 	In the past, 	PERB
has 	also 	held 	the 	6-month 	statute 	of 	limitations 	to 	be 	an
affirmative defense which was 	waived by 	the proponent 	of 	such
defense 	if 	not raised in the 	answer.4 (Walnut Valley Unified
School District 	(1983) 	PERB Decision No. 	289.) 	Walnut Valley,
however, 	was 	overruled by the 	Board 	in California 	State
University, 	San Diego, 	supra. 	There the Board held that the
6-month 	time period 	is 	not 	a 	statute 	of 	limitations 	and need 	not
be raised as an affirmative defense. 	Rather, 	the time period 	is
jurisdictional 	and 	cannot be waived by 	either 	of 	the parties 	or
by 	the Board 	itself. 	Based upon the Board's 	interpretation of
the 	"statute of 	limitations" 	found 	in all three of 	the 	statutes
which it administers, 	if the charge 	is not 	filed within the
3Cases 	construing the 	NLRA are persuasive 	in 	interpreting
parallel provisions 	of 	HEERA. 	(Moreno Valley 	Unified 	School
District v. 	PERB 	(1983) 	142 Cal.App.3d 	191, 	196.) 	The 	6-month
statute of limitations 	is 	found in the NLRA at 	section 	10(b), 	29
U.S.C, section 160(b).
4The 	statute of 	limitations 	is 	found 	in section 	3563.2 	of
HEERA, 	which reads 	in pertinent part as 	follows:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have the right 	to 	file 	an
unfair practice charge, 	except that the board
shall 	not 	issue a complaint 	in respect of 	any
charge 	based 	upon 	an alleged 	unfair practice
occurring more 	than 	six months 	prior to 	the
filing of the charge.
Similar 	sections 	are also found in 	section 	3 541.5 	of 	the
Educational 	Employment Relations Act and 	section 	3514.5 	of 	the
Ralph C. 	Dills Act.
3
4

relevant 	6-month period, 	the Board has 	no 	subject matter
jurisdiction over 	the 	case 	and may 	not 	issue 	a 	complaint 	under
any 	circumstances. 5
A 	logical 	progression of 	the 	analysis 	used 	in California
State University. 	San Diego 	results 	in the 	conclusion that the
doctrine of 	equitable tolling does 	not 	survive. 	That decision
stated 	emphatically 	that 	the 	6-month 	time 	period was
jurisdictional 	in nature and 	could not be waived, 	for any reason,
by 	either of 	the parties 	or by the 	Board 	itself. 	The doctrine 	of
equitable tolling allowed the Board, 	in its discretion, 	and 	in
furtherance of the principles of equity, 	to waive, 	in essence,
the 	6-month 	statute 	of 	limitations 	for the 	time period during
which a 	grievance was pursued. 	Under California 	State
University. 	San Diego. 	the Board no longer has discretion to
waive the 	6-month period, 	as 	it has 	no power to 	entertain the
case 	for 	lack of 	jurisdiction.6
5The 	Board 	cited a 	similar 	analysis 	in Lake Elsinore 	School
District 	(1987) 	PERB Decision No. 	646 	(affd. 	by the California
Court of Appeal, 	4th District, 	Division 2 	in an unpublished
decision issued July 28, 	1988, 	case no. 	EOO5078), where the Board
held 	that 	it 	lacks 	subject matter 	jurisdiction over matters 	where
the alleged conduct was prohibited by the parties' 	contract 	and
covered by 	its 	grievance procedures 	providing 	for binding
arbitration.
6Based upon the 	above 	analysis, 	we 	agree with 	the ALJ 	that
as 	a result of California State University. 	San Diego, 	the burden
is 	on the 	charging party to 	show timeliness 	as part 	of 	its 	prima
facie case.
5
6
5

Application of 	the 	Relation Back Doctrine
The 	Federation argues 	that 	the 	doctrine 	of 	relation back
should be applied 	to 	this 	case, 	such 	that the 	UCLA charge would
relate back to the Santa Cruz 	charge, 	which was 	timely 	filed.
The 	Board has 	held that 	if 	an amended charge 	raises 	the 	same
issue 	alleged 	in the original 	charge 	and 	is 	intertwined with 	the
conduct 	in the original 	charge, 	where the amended charge 	is
outside of the 	statute of 	limitations, 	the doctrine of relation
back can be 	applied to 	render the 	amended 	charge 	timely.
(Regents 	of 	the University of California 	(1987) 	PERB Decision
No. 	640-H, 	p. 	15.) 	Where the conduct alleged in the original
charge 	is 	the 	same 	conduct 	or 	factual 	allegation contained 	in the
amended 	charge, 	and where 	the 	second 	charge 	or 	amended 	charge
either clearly 	indicates 	a 	legal 	theory 	for the 	first 	time 	or
merely 	alleges 	another 	theory 	on the 	same 	facts 	already before
the 	Board, 	the doctrine of 	relation back has 	been applied to
allow timely 	filing of 	the 	amended 	charge. 	(Gonzales 	Union High
School District 	(1984) 	PERB Decision No. 	410; 	Temple City Unified
School District 	(1989) 	PERB Order No. 	Ad-190.) 	The Board has
refused to apply the doctrine, 	however, 	where the original 	charge
failed to 	raise the 	issue which 	is 	the 	subject 	of 	the amended
charge. 	(Burbank Unified School 	District 	(1986) 	PERB Decision
No. 	589, 	Monrovia Unified School District 	(1984) 	PERB Decision
No. 4 60.)
The 	circumstances 	presented here 	do 	not warrant 	the
application of 	the 	relation back doctrine. 	The 	UCLA charge 	and
66

the 	Santa Cruz 	charge are not based upon the 	same 	course 	of
conduct. 	The 	cases were 	consolidated because 	they 	involve
interpretation of the 	same 	contract provisions. 	The 	conduct
relating to the contract negotiations 	and, 	therefore, 	the
contract 	interpretation, 	may be the 	same, 	but the conduct giving
rise to 	the allegations 	of 	a unilateral 	change violation 	is
peculiar to each campus. 	There 	is 	no 	evidence that the actions
taken at the two 	campuses were 	the 	result of 	a 	systemwide plan or
directive. 	Further, 	the record reflects 	that each campus 	enjoyed
relative autonomy 	in administering 	the 	contract. 	Because 	these
two 	cases 	are not based upon the 	same 	alleged 	facts 	or 	conduct,
the doctrine 	of 	relation back does 	not 	apply.
Commencement of 	the 	Statute 	of 	Limitations
The 	factual 	scenario presented by the 	UCLA case 	is 	one
wherein 	it 	appears 	that the 	Federation received notice 	of 	an
alleged 	change 	in the 	criteria 	used 	in the 	allocation of 	3-year
appointments prior to the time 	the 	lecturers 	in the writing
program were 	actually affected by 	the 	change. 	The 	question
therefore 	arises 	as 	to when the 	6-month 	time period begins 	to
run.
PERB 	law has 	heretofore been unclear as 	to the rule 	on this
issue. 	We wish to 	clarify the rule herein. 	The 	statute of
limitations 	begins 	to run on the date the 	charging party has
actual 	or constructive notice 	of 	the respondent's 	clear 	intent 	to
implement a unilateral change 	in policy, 	providing that nothing
subsequent to that date 	evinces 	a wavering of 	that 	intent. 	(See
7

Anaheim Union High School 	District 	(1982) 	PERB Decision No. 	201.)
This 	rule reflects 	the Board's 	view of when a 	change 	in policy
actually occurs.
In 	stating this 	rule, 	we 	find that 	a 	charging party 	is 	not
required to wait until 	actual 	implementation to 	file 	a 	charge
alleging a unilateral change. 	In addition, 	a charging party must
file 	such charge when it has 	actual 	or constructive notice 	of 	a
clear intent to 	implement the 	change, 	and may not rest on its
rights until actual 	implementation occurs. 	In the present 	case,
the date of 	notice would be the date when the Federation 	first
learned 	of 	the University's 	rationale 	for 	its 	allocation of 	Full
Time Equivalents 	(FTE's)7 for three-year appointments 	on the UCLA
campus.
In accordance with California 	State University. 	San Diego,
supra , 	PERB Decision No. 	718-H, 	the charging party has the burden
to prove timeliness as part of 	its prima facie case. 	However, 	we
note 	that California 	State University. 	San Diego did 	not 	issue
until 	after the 	close of hearing in the present 	case, 	and before
post-hearing briefs were 	due. 	As 	neither the ALJ 	nor the
parties 	addressed this 	issue until 	after the hearing, 	the 	Board,
8
7"Full 	Time Equivalent" 	refers 	to the university's
commitment to provide one 	full-time teaching position, 	and 	is 	the
method by which budgets 	for the 	various 	departments 	are
allocated.
8 In the present case, 	the 	last day of hearing was
October 	19 	. 	California State University. 	San Diego was
issued on January 	17, 	1989, 	and post-hearing briefs were 	filed
simultaneously by both parties 	on February 	15, 	1989.
.. .'
, 	1988
8

in the 	interest 	of 	fairness 	and to 	afford both parties 	full 	due
process 	rights, 	finds 	that the record 	should be reopened 	so 	that
evidence may be 	taken on the 	narrow 	issue 	of timeliness.
II. 	Case No. 	SF-CE-272-H
g
Contract 	Interpretation
The 	proposed 	decision 	could 	be 	construed 	to 	find 	that
Article VII 	of 	the MOU 	currently 	in effect 	is 	interpreted 	to
disallow the 	University 	from 	taking 	fiscal 	or 	financial
considerations 	into 	account 	at 	every 	stage of 	the 	decision-making
process 	regarding reappointment 	of 	post-six-year 	lecturers. 	In
affirming the proposed decision, 	we would 	like to 	clarify 	that we
do 	not 	intend 	such a 	reading of 	the decision.
9 The 	University 	claims 	that 	PERB 	lacks 	jurisdiction 	over
this 	matter because 	it 	is 	solely an issue of 	contract
interpretation, 	citing Eureka City School District 	(1985) 	PERB
Decision No. 	528 	(wherein the 	contract 	language was 	found to be
ambiguous 	and the 	Board held 	that 	no 	extrinsic 	evidence was
introduced 	at 	the 	hearing which would demonstrate 	a 	mutual
understanding or 	intent 	of 	the parties. 	The Board 	found 	that 	the
evidence 	did 	not 	reflect 	any policy 	change 	under Grant 	Joint
Union High School District 	(1982) 	PERB Decision No. 	196, 	and thus
there was 	no 	independent violation of 	the 	Educational 	Employment
Relations Act).
The 	Board has 	jurisdiction to 	interpret 	contract 	language 	in
order to 	resolve 	an unfair practice 	charge. 	(Grant 	Joint 	Union
High School District f 	supra, 	PERB Decision No. 	196, 	at p. 	8;
Victor Valley Union High School 	District 	(1985) 	PERB Decision No.
487, 	at p. 	25.) 	Because this case alleges an independent
violation of the Act 	(i.e., 	a policy change) 	which requires 	the
Board to 	interpret the contract 	language, 	this 	exception has 	no
merit.
9
'
9

In order to make a decision with regard to 	instructional
need 	in Article VII 	C.(l)(a)(l) 	of 	the MOU,10 specifically,
whether 	a 	certain class will 	be 	taught 	for three years 	by a 	Unit
18 	lecturer, 	the University must take 	financial and fiscal
considerations 	into account. 	Otherwise, 	the University could not
accurately project whether resources will 	be 	available 	to 	support
three-year appointments. 	Once 	it has 	been decided that a 	course
will be taught for three years by a Unit 	18 	lecturer, 	the
University 	must 	then 	apply 	the 	criteria 	delineated 	in
Article VII 	C.(l)(a)(2). 	Financial or fiscal 	considerations 	are
not 	among the 	criteria 	specified, 	and therefore 	cannot be 	taken
into 	consideration at that 	stage of 	the decision-making process.
It is, 	therefore, 	not a unilateral change to take financial
considerations 	into account at any time; 	it is 	a unilateral
change 	to 	take 	such 	factors 	into 	account 	only when 	considering
Article VII 	C.(l)(a)(2), 	when instructional need has 	already been
determined.
In this 	case, 	the decision to create a percentage ratio of
three-year 	to 	one-year 	appointments 	(70 	percent 	3-year 	to
30 	percent 	1-year) 	was 	not based upon the 	criteria 	established
under the MOU. 	The 	University has 	therefore 	interjected 	criteria
into 	the determination not 	agreed upon by 	the parties. 	Based
upon that 	finding, 	UC has 	violated the Act by unilaterally
implementing a 	change 	in the parties' 	agreed upon policy with
regard 	to 	post-six-year 	reappointments.
10See proposed decision, 	pages 	4-7.
10

The 	Remedy
Based upon a 	finding 	that 	UC violated the Act 	on 	its 	Santa
Cruz 	campus, 	the ALJ 	issued a 	cease-and-desist 	order 	and a 	return
to the 	status quo ante, 	ordering the University, 	beginning with
the 	next 	academic 	year 	following the 	date 	the 	decision becomes
final, 	to 	increase the percentage 	level 	of any three-year
appointments 	made 	in violation of 	the MOU 	to at 	least 	the
percentage 	level 	the 	lecturers 	held during the year prior 	to
these three-year appointments. 	He 	also 	ordered back pay be
reimbursed to 	all 	lecturers who 	suffered 	losses 	as 	a 	result 	of
this 	violation and 	ordered 	the 	University 	to post 	a 	notice 	at 	the
Santa Cruz 	campus.
We do 	not 	adopt 	that portion of 	the order which requires 	the
UC 	to 	increase 	the percentage 	level 	of 	the 	reduced three-year
appointments 	which 	resulted 	from a 	violation to 	at 	least 	the
percentage 	level 	the 	lecturers 	held during 	the 	year prior 	to 	the
three-year appointments, 	because 	it would not comport with the
terms of the Agreement. 	Although 	it 	is 	true that a unilateral
change violation is 	generally remedied with a return to 	the
status 	quo 	ante 	(Rio 	Hondo 	Community College District 	(1983)
PERB Decision No. 	292), 	in this 	case, 	the remedy should not order
the parties 	to do 	something which 	is 	in 	contravention of 	the
contract.
Neither the MOU itself, 	nor any extrinsic 	evidence, 	show
that 	the 	MOU required UC 	to grant 	reappointments 	at 	a 	certain
percentage. 	On the contrary, 	Article VII 	(c)(1)(b) 	states with
regard 	to post-six-year 	appointments:
11

The 	three-year appointment 	does 	not 	guarantee
that 	either the percentage 	of 	appointment 	or
the 	specific 	teaching assignment will 	be
constant 	for 	each 	quarter 	or 	semester during
the term of the three-year appointment. 	The
appointment 	letter 	shall 	specify the 	minimum
percentage 	time 	for 	each quarter or 	semester
of 	the 	three-year period 	and 	the 	quarters 	or
semesters 	during which 	the 	faculty/instructor
in the unit 	shall 	be 	employed.
Faculty/instructors 	in the unit 	appointed 	at
less 	than 	100% 	time and/or for 	less 	than the
full 	academic 	year may be 	subsequently
offered additional 	courses 	or 	additional
academic duties.
Based upon the contract 	language, 	there 	is 	no 	indication
that 	a 	lecturer must be 	appointed 	for a percentage of 	time 	equal
to 	his 	most 	recent 	appointment 	or any 	other 	specific 	percentage
of appointment. 	In fact, 	it is apparent that the percentage of
appointment 	is 	not 	guaranteed 	and that the percentage of
appointment 	may vary 	even within 	the 	three-year 	time period.
There was 	no 	evidence presented that 	the parties 	agreed that 	a
three-year 	appointment would be 	based upon 	the 	current 	percentage
of 	appointment of the 	individual 	lecturer.
In addition, 	by requiring the 	lecturers 	to be appointed at
the percentage they held in the year prior to the violation, 	the
Board would 	not 	truly be 	returning 	the 	lecturers 	to 	the position
they would 	have held had the violation not 	been 	committed. 	The
only way to 	achieve 	that 	is 	to 	order 	compliance proceedings
wherein 	it will 	be determined what 	the 	instructional 	need
actually was 	in the 	3-year period, 	and any harmed 	lecturers 	will
receive 	restitution. 	The violations 	occurred with 	regard 	to
three-year appointments 	beginning 	in the 	1987-88 	school 	year,
12

therefore, we 	find 	that 	back pay 	is 	sufficient 	to 	restore 	the
statue 	quo 	ante.11
With regard to the posting requirement, 	the proposed
decision required posting at 	the 	Santa Cruz 	campus 	only. 	We 	find
it more 	appropriate that the 	notice be posted 	systemwide,
although 	the 	notice 	itself will 	specify 	that 	the 	violation
occurred on the Santa Cruz 	campus. 	This 	is 	so because the named
respondent is 	the Regents of the University of California, 	and
not 	solely the Santa Cruz 	campus. 	Furthermore, 	the violation to
be 	remedied by the posting order 	concerns 	contract 	language
applicable to the 	entire unit, 	whose members 	are 	employed at 	all
University campuses. 	(Trustees 	of 	the California 	State
University 	(1988) 	PERB Order No. 	Ad-174-H.12) 	The Order and
Notice 	have 	been modified 	accordingly.
ORDER
Los Angeles 	- Case No. 	LA-CE-235-H
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	the Board REMANDS this
II All 	of 	the 	lecturers who met 	the 	criteria provided 	in the
MOU were given 	3-year appointments, 	albeit at reduced 	levels, 	in
order to allow the 	then chair of 	the 	Santa Cruz writing program
to 	avoid terminating the 	employment 	of 	some 	of 	the 	lecturers.
12AFT also argues that a 	systemwide remedy 	is 	appropriate,
based upon the 	Santa Cruz 	violation. 	We reject this 	argument.
Although 	our decision 	concerning 	interpretation 	of 	the 	MOU 	can be
given preclusive 	effect 	over the 	same 	issue under the doctrine 	of
collateral 	estoppel 	in a future case, 	a 	finding of a violation on
each campus 	must be proven by the 	facts 	of 	each case. 	This 	is
especially true as 	there 	is 	no 	evidence of 	a 	systemwide 	change 	in
policy, 	and 	in light of the ALJ's 	finding that the MOU was
administered by 	each 	campus 	autonomously.
13

case 	to 	the 	Chief ALJ 	and ORDERS 	that 	evidence 	be 	received 	on the
issue of timeliness 	as discussed,in this decision, 	and to make
supplemental 	findings 	of 	fact 	and 	conclusions 	of 	law on the 	issue
of 	timeliness, 	whereupon 	such findings 	and conclusions 	shall be
forwarded 	to 	the 	Board.
Santa Cruz 	- Case No. 	SF-CE-272-H
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	the Board finds 	that the
Regents 	of 	the University of California violated 	section 	3571(a),
(b) 	and 	(c) 	of HEERA. 	The Board REMANDS this 	case to the San
Francisco 	Regional 	Director and 	ORDERS 	that 	compliance
proceedings 	be 	instituted, 	in order to determine actual
instructional 	need at the 	Santa 	Cruz 	campus 	during the 	three-year
period in question 	(academic years 	1987-88, 	1988-89 and 	1989-90),
upon which back pay will 	be 	awarded 	to 	any unit members 	who
suffered harm as 	a 	result of 	reduced percentage 	appointments 	in
violation of the Act.
IT 	IS 	HEREBY ORDERED that 	the 	Regents 	of 	the 	University of
California 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	exercise of rights 	guaranteed
under 	the 	Higher 	Education Employer-Employee 	Relations 	Act 	by 	the
University's 	employees 	in the 	nonsenate 	instructional 	unit by
unilaterally 	changing the 	criteria 	for post-six-year 	appointments
contained 	in the Memorandum of 	Understanding 	(MOU) 	between the
14

University 	and 	University 	Council-American 	Federation 	of 	Teachers
(Federation) 	during its term, 	without the Federation's 	consent.
2. 	Denying the Federation rights 	guaranteed 	to 	it by
the 	Higher Education Employer-Employee 	Relations Act 	by
unilaterally 	changing 	the 	criteria 	for 	post-six-year 	appointments
contained 	in the MOU, 	without the Federation's 	consent.
3. 	Failing and refusing to meet 	and 	negotiate 	in good
faith with 	the 	Federation by 	unilaterally 	changing 	the 	criteria
for post-six-year appointments 	contained 	in the MOU, 	without 	the
Federation's 	consent.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Make whole any unit member at the University of
California, 	Santa Cruz 	campus, 	who is 	found to have suffered
economic 	harm as 	a 	result 	of 	reduced percentage appointments 	made
in contravention of 	the MOU and HEERA, 	in accord with 	the
compliance proceedings 	ordered herein.
2. 	Within thirty-five 	(35) 	days 	following the date
this decision is 	no 	longer subject to reconsideration, 	post at
all 	University of California 	campuses, 	in all work locations
where notices 	to 	employees 	are customarily placed, 	copies 	of 	the
Notice 	attached as 	an Appendix hereto, 	signed by an authorized
agent of the Regents 	of the University of California. 	Such
posting 	shall 	be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be taken to 	insure
15

that this Notice is 	not reduced in size, 	defaced, 	altered or
covered 	by 	any material.
3. 	Written notification of the 	actions 	taken to
comply with this 	Order 	shall be made 	to 	the 	San Francisco
Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with her 	instructions.
Chairperson Hesse 	and Member Craib 	joined 	in this 	Decision.
16

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-272-H,
University Council-American Federation of 	Teachers 	v. 	The 	Regents
of 	the University of California, 	in which all parties 	had the
right to participate, 	it has 	been found that the Regents 	of 	the
University 	of 	California 	violated 	the 	Higher Education 	Employer-
Employee Relations Act, 	section 3571(a), 	(b) and (c), by
unilaterally changing the requirements 	for post-six-year, 	three-
year 	appointments 	for nonsenate 	instructional 	unit 	employees
during the 	term of 	a 	negotiated 	agreement with 	University
Council-American Federation of Teachers 	(Federation) 	at 	its 	Santa
Cruz campus.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	exercise of 	rights 	guaranteed
under the 	Higher 	Education Employer-Employee Relations 	Act 	by 	the
University's 	employees 	in the 	non-senate 	instructional 	unit 	by
unilaterally 	changing 	the 	criteria 	for post-six-year 	appointments
contained 	in the Memorandum of 	Understanding 	(MOU) 	between the
University and the 	Federation during 	its 	term, 	without 	the
Federation's 	consent.
2. 	Denying the 	Federation rights 	guaranteed to 	it by
the 	Higher 	Education Employer-Employee 	Relations 	Act by
unilaterally 	changing 	the 	criteria 	for post-six-year 	appointments
contained 	in the MOU, 	without 	the Federation's 	consent.
3. 	Failing 	and refusing to meet 	and negotiate 	in good
faith with 	the 	Federation by 	unilaterally 	changing 	the 	criteria
for post-six-year appointments 	contained 	in the MOU, 	without 	the
Federation's 	consent.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
Make whole 	any unit member at 	the 	University of
California, 	Santa Cruz, 	campus who is 	found to have 	suffered
-----===----

economic 	harm as 	a 	result 	of 	reduced percentage 	appointments 	made
in 	contravention of 	the MOU and HEERA, 	in accord with the
compliance 	proceedings 	ordered 	herein.
Dated: 	THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA
By
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,
Charging 	P a r t y ,
V .
THE 	REGENTS OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Unfair 	Practice
Case Nos. 	SF-CE-272-H
LA-CE-235-H
PROPOSED 	DECISION
(2/24/89)
Appearances: 	Leonard, 	Carder & 	Zuckerman by William H. 	Carder
for 	University Council-American Federation of 	Teachers; 	Marcia 	J.
Canning and Susan H. 	von Seeburg 	for the Regents 	of the
University 	of 	California.
Before 	Douglas Gallop, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On November 	17, 	1987, 	University Council-American Federation
of 	Teachers 	(hereinafter Association) 	filed an unfair practice
charge 	in Case 	SF-CE-272-H 	alleging that 	the 	Regents 	of 	the
University 	of 	California 	(hereinafter 	Respondent 	or 	University)
violated section 3571(a), 	(b), 	(c) and (e) of the Higher
Education 	Employer-Employee 	Relations 	Act 	(hereinafter 	HEERA or
A c t ) ,1 by unilaterally modifying terms 	and conditions 	of
employment 	contained 	in 	a memorandum 	of 	understanding 	between 	the
parties, 	at Respondent's Santa Cruz, 	California campus. 	On May
4, 	1988, 	the Association filed an unfair practice charge 	in Case
The 	HEERA 	is 	c o d i f i e d 	at 	Government 	Code 	s e c t i o n 	3560 	et
seq. 	Unless otherwise indicated, 	all 	statutory references herein
are to the Government Code.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
)
______________ )

LA-CE-235-H 	alleging that 	Respondent violated 	section 	3571(a),
(b) 	and 	(c) 	of the HEERA by modifying the 	same provisions 	of the
memorandum of understanding, 	at its Los Angeles 	campus. 	On
February 26, 	1988, 	the then Acting General Counsel 	of the Public
Employment 	Relations 	Board 	(hereinafter 	PERB) 	issued a 	complaint
in Case 	SF-CE-272-H 	alleging 	said modification 	as 	violative 	of
section 3571(a), 	(b), and (c), and on June 21, 	1988, issued a
complaint 	in Case 	LA-CE-235-H 	alleging 	this 	conduct 	as 	violative
of 	section 3571(b) 	and 	(c). 	Respondent filed answers to the
complaints 	denying 	the 	commission 	of 	unfair practices 	and
alleging various 	affirmative 	defenses. 	An 	informal 	settlement
conference was 	conducted in Case 	SF-CE-272-H, 	but the matter was
not 	resolved, 	and the 	parties declined to participate 	in 	an
informal 	settlement 	conference 	in Case 	LA-CE-235-H. 	The 	cases
were 	consolidated 	for hearing, 	and 	after 	a pre-hearing
conference, 	the hearing was conducted on October 12, 	13, 	14, 	17
and 	19, 	1988. 	The parties 	filed post-hearing briefs, 	and the
matter was 	submitted for decision on February 	15, 	1989.
FINDINGS 	OF 	FACT
Background:
Respondent, 	which operates 	a 	statewide 	system of public
universities, 	is 	an employer within the meaning of 	section
3562(h). 	The Association, 	an employee organization within the
meaning of 	section 3562(j), 	is the exclusive representative of a
statewide 	unit 	of 	Respondent's 	non-senate 	instructional
employees. 	The unit, 	totalling between 	1,800 	and about 	2,000
22

. .. .
1. . .
employees, 	primarily consists 	of 	lecturers who are not on tenure
track to become permanent 	faculty members. 	They 	serve 	two major
functions 	for Respondent, 	the 	first being to act as 	fill-ins 	for
tenured 	staff 	on 	leave, 	and the 	second being to provide
instruction 	for 	specialized 	courses 	which 	the 	tenure-track 	staff
(which numbers 	about 	8,000) 	does 	not have 	the 	specialized
training and/or desire 	to 	teach. 	Respondent also employs
teaching assistants, 	who are usually graduate 	students, 	to
perform 	some of these 	functions. 	Historically, 	Respondent had
offered 	lecturers 	appointments 	ranging 	in 	length 	from 	one 	quarter
to one 	year, 	although two-year appointments were possible under
Respondent's policies. 	Part-time appointments were 	common, 	and
Respondent's 	policy also provided 	for 	split appointments, 	whereby
lecturers would teach 	courses 	for more 	than one 	department.
Respondent 	also had 	a 	policy 	limiting 	the 	employment 	of
lecturers, 	known as 	the 	"eight-year rule." 	Under that policy,
lecturers who had taught 	courses 	at a 	campus 	for 	eight years 	at
over 	50% 	time were only eligible 	for 	continued employment 	at no
more than a 	50% 	appointment. 	It was 	this 	lack of 	security in
employment 	that the Association 	sought 	to 	change when 	it
commenced negotiations 	with 	Respondent 	for 	an 	initial 	agreement.
Bargaining 	History 	and 	Findings 	Based 	Thereon:
The initial agreement, 	which took some 27 months to
negotiate, 	became effective on July 1, 	1986, 	and was
renegotiated, 	in part, 	effective for the period July 	1, 	1987 to
June 	30, 	1990. 	Both agreements 	contain the 	same provisions with
w3

respect to appointments 	of unit members. 	Those provisions, 	in
pertinent part, 	read as 	follows:
Article VII. 	APPOINTMENT
A. 	General 	Provisions
1. 	Upon the 	execution of 	this 	Memorandum of
Understanding 	the 	provisions 	of APM 	287-17 	(Terms
of 	Service) 	shall 	no longer be 	applicable.
2. 	When a 	faculty/instructor 	in the 	unit 	is 	offered
an appointment 	or reappointment, 	she 	or he 	shall
be 	informed 	in writing 	of:
a) 	the 	title 	of 	the position;
b) 	the 	salary rate;
c) 	the name 	of 	the 	employing department;
d) 	the period(s) 	for which the 	appointment
is effective;
e) 	the percentage 	of 	time;
f) 	the 	nature 	of 	the 	appointment 	and the
general responsibilities; 	and,
g) 	the 	name 	of 	the department 	chair,
program 	head 	or 	other person 	to 	whom
the 	faculty/instructor 	in 	the 	unit
reports.
3. 	Letters 	of 	appointment 	or reappointment
shall 	be 	consistent with 	this 	Memorandum
of 	Understanding. 	If conflicts 	exist,
this 	Memorandum 	of 	Understanding 	shall
be 	controlling.
4. 	The 	appointment or reappointment 	shall 	have
a 	definite 	ending 	date 	and 	shall 	terminate
on the 	last day of 	the 	appointment 	set 	forth
in the 	letter of appointment. 	The
appointment 	or 	reappointment 	may 	be
terminated prior to 	the 	ending date 	of 	the
appointment 	in 	accordance 	with 	the 	provisions
of 	this 	Memorandum 	of 	Understanding.
5. 	The 	University has 	the 	sole right 	to 	assign
employees 	to 	teach 	courses 	offered by 	the
4

University, 	and to assign other duties.
Whenever 	possible 	the 	faculty/instructor
in the 	unit 	should be 	consulted 	in
advance of these assignments.
6. 	One 	(1) 	year of 	service 	is defined as
three 	(3) 	quarters or two 	(2) 	semesters
for 	9-month 	appointees 	and 	four 	(4)
quarters 	or 	equivalent 	for 	11-month
appointees 	at 	any percentage of 	time 	of
service 	in any unit title 	at the 	same
campus.
7. 	Lecturers 	on track to SOE 	and the
Lecturers with COE, 	title codes 	1600,
1602, 1605, 1606, 1610, 1615, 1616, and
1619, 	will 	be appointed and evaluated in
accordance with 	the 	applicable
procedures 	currently 	in effect at 	the
time 	of 	implementation of 	the 	Memorandum
of Understanding, 	unless otherwise
agreed 	to 	in writing by 	the parties 	to 	this
Memorandum 	of 	Understanding.
8. 	Provisions 	of this 	article will 	not
apply to 	faculty/instructors 	in 	the 	unit
whose 	appointments 	have 	indefinite
ending dates.
9. 	All 	appointment and reappointment
decisions 	shall 	be made 	at the 	sole
discretion of 	the 	University except 	as
provide 	herein and 	shall 	not be 	subject
to Article XXXIII. 	Grievance Procedure
except for procedural 	violations.
10. 	The provisions of this Article are not
subject to Article XXXIV. 	Arbitration.
1. 	Appointment 	and Reappointment
a) 	Normally, 	the initial 	appointment 	shall
be 	for a period of 	service 	of 	one 	(1)
academic year or less. 	However, 	the
initial 	appointment may be 	for 	a period
of up to two 	(2) 	academic years.
B. 	Initial Appointment 	and Reappointment
b) 	Reappointment(s) 	during the 	first
six 	(6) 	years of 	service at the 	same
S5

campus 	may be 	for 	a period of 	up to
three 	(3) 	academic years.
c) 	The duration of 	an 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.
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:
66

1) 	there 	is 	a 	continuing or
anticipated 	instructional 	need
as 	determined 	by 	the
University; 	or, 	there is 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,
2) 	the 	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. 	The 	three-year
appointment 	does 	not 	guarantee 	that
either 	the 	percentage 	of 	appointment 	or
the 	specific 	teaching 	assignment will
be 	constant 	for 	each quarter 	or 	semester
during 	the 	term 	of 	the 	three-year
appointment. 	The 	appointment 	letter
shall 	specify 	the 	minimum 	percentage
time 	for 	each 	quarter 	or 	semester 	of
the 	three-year 	period 	and 	the 	quarters
or 	semesters 	during which 	the
faculty/instructor 	in 	the 	unit 	shall 	be
employed. 	Faculty/instructors 	in 	the
unit 	appointed 	at 	less 	than 	100% 	time
and/or 	for 	less 	than the 	full 	academic
year 	may 	be 	subsequently 	offered
additional 	courses 	or 	additional
academic 	duties.
c) 	Review for 	subsequent 	three-year
appointments 	will 	normally 	occur 	during
the 	second year 	of 	each 	three-year
appointment.
The 	foregoing 	provisions 	represent 	a 	substantial 	departure
from the 	initial 	proposals 	by 	the 	parties. 	The Association
7

initially 	proposed 	a 	system 	of 	increasingly 	longer 	appointments,
culminating 	in 	an 	indefinite 	contract 	and a 	"Certificate 	of
Continuous 	Employment." 	The 	University 	initially rejected 	any
provisions 	for tenure 	in employment 	for lecturers, 	and desired to
retain 	total 	discretion 	in appointment decisions. 	The 	parties
soon were 	at 	loggerheads 	on this 	and other 	issues, 	and 	formal
bargaining virtually ceased. 	Progress was made during a 	series
of 	informal meetings 	in May and June 	1985, 	and Respondent began
to rethink its 	position on the 	length of 	appointments 	for 	long-
term lecturers. 	Commencing on October 24, 	1985, 	the parties
exchanged a number of 	appointments 	proposals, 	culminating in
tentative 	agreement 	for 	an 	appointments 	article 	on 	February 	7,
1986. 	Upon agreement to the entire 	contract, 	that language
became 	part of 	the 	1986 	agreement, 	and was 	reiterated in the
current 	agreement.
Much 	of 	the 	testimony 	and documentary 	evidence 	presented 	at
the hearing consisted of various witnesses' 	interpretations 	of
the 	appointments 	article, 	the positions 	taken by the parties
during and after the 	completion of negotiations, 	and various
interpretations 	given 	to 	the 	article 	in Respondent's 	policy
manuals 	and other publications. 	Upon review of 	the 	record,
certain elements 	of this 	article 	are apparent, 	and need no
interpretation.2 First, 	it is 	clear that Article VII 	(B) 	is an
therefore, 	any testimony to the 	contrary is not 	credited 	if
it 	alleges 	that 	a different meaning was 	agreed to 	at 	the
bargaining table; 	or is 	considered irrelevant if 	it 	consists 	of
alleged 	statements 	made 	during the 	course 	of 	the 	ever-changing
positions of the parties during the negotiations, 	or a witness'
. . .
8

10
express 	limitation 	on 	Respondent's 	discretion 	in making post-six-
year appointments.3 Secondly, 	Article VII 	(C)(l)(b), 	on its
face, 	mandates 	three-year appointments 	for lecturers who have
completed 	six years 	of 	employment at the 	same 	campus, 	provided
that certain conditions are met.4 Thus, 	Article VII 	(C)(l)(b)
states 	that 	such appointments 	"shall" 	be made 	for three-year
periods, 	and upon reaching agreement on this article, 	it is
found, 	as witnesses 	for the Association testified, 	and as their
bargaining notes reflect, 	that Robert Bickal, 	Respondent's 	then
chief 	negotiator, 	commented that 	three-year appointments were 	now
"mandatory."5
personal 	interpretation of the 	provisions.
3Any doubt on this 	issue 	is 	resolved by the 	fact 	that
Respondent's proposed Article VII 	(A)(9), 	as of February 7, 	1986,
read, 	"All 	appointment and reappointment decisions 	shall 	be made
at the sole discretion of the University 	. 	. 	. 	." 	The
Association objected to this 	language, 	and the parties, 	on that
date, 	initialed the current language, which reads, 	"All
appointment 	and reappointment decisions 	shall 	be made 	at 	the 	sole
discretion of the University except as provided herein 	. 	. 	. 	. "
(Emphasis 	added.)
4Again, 	any testimony that the parties 	agreed to a 	contrary
interpretation is not credited, 	and pre-agreement positions 	and
personal 	interpretations 	are 	considered 	irrelevant.
5Bickal, when confronted with this 	statement, 	did not deny
having made 	it. 	His explanation, 	that he only meant that the
University was 	required 	to 	"consider 	individuals 	for 	the
possibility 	of 	three-year 	appointments" 	is 	irrelevant 	in the
absence 	of 	evidence 	that 	such 	an 	interpretation was 	communicated
to the Association. 	Furthermore, 	in light of his use of the
terms, 	"mandatory" 	and 	"major concession," 	on February 7, 	1986,
it 	is 	also 	concluded that 	Bickal meant exactly what he 	said when
the 	parties 	reached agreement on this 	article.
9

Therefore, 	Respondent, 	under the agreement, 	was and is
obligated 	to 	grant 	three-year 	appointments 	in 	accordance 	with 	the
requirements 	set forth in Article VII 	(C)(l)(a). 	Those
requirements are: 	1) 	Six years of 	service at the 	same campus;
2) 	Continuing or 	anticipated 	instructional 	need as 	determined by
Respondent, 	or a 	specialized need for instruction; 	and, 	3)
Excellence 	in 	instructional 	performance.
Astonishingly, 	through the 	entire 	course of 	these 	lengthy
negotiations, 	the parties never defined the term, 	"instructional
need." 	One 	not privileged to 	any 	specialized meaning 	for 	the
term would ordinarily assume 	that 	it means what 	it appears 	to, 	on
its 	face: 	the need for instruction, 	which is the meaning
attached to 	it by 	the Association's witnesses. 	Recognizing 	that
the 	term may have 	a 	special 	meaning in 	the 	context of
Respondent's 	operations, 	the parties were permitted to present
testimony 	and 	documentary 	evidence 	as 	to 	any 	commonly 	understood
different meaning 	for the 	term 	in the 	academic 	community, 	and
circumstantial 	evidence 	that would 	show a 	specialized
understanding of the term by the parties. 	Not 	surprisingly, 	the
interpretations 	ranged 	in 	length 	from one-liners 	to detailed
analyses 	covering 	several pages 	of 	transcript. 	Also not
surprisingly, 	the interpretations, 	in substance, 	ranged from the
rather 	straightforward meaning 	attached 	to 	the 	phrase 	by 	the
Association's witnesses, 	to an all-encompassing concept that
would, 	in effect, 	permit Respondent to deny three-year
appointments 	on 	the 	basis 	of 	virtually 	any 	consideration 	it
10

deemed relevant. 	While most, 	if not all, 	of Respondent's
witnesses 	appeared 	to be 	motivated by 	a 	deep-seated bias 	against
relinquishing any control 	over appointments, 	even if their
interpretations 	of the 	term, 	"instructional need," 	were 	credited
(and 	there were 	certainly many 	conflicts 	in testimony and
documentary 	evidence 	as 	to 	Respondent's 	interpretation 	of Article
VII), 	Respondent has 	clearly failed to establish any mutually
understood meaning 	for 	the 	term, 	"instructional 	need" 	other 	than
would 	be 	suggested 	by 	the 	dictionary definition.6
Respondent 	contends 	that 	the 	parties 	agreed 	or understood
that 	financial 	considerations 	could be 	considered 	in determining
instructional need. 	Inasmuch as Article VII 	(C) 	nowhere mentions
financial 	considerations, 	it is Respondent's burden to prove that
'rt 	is noted that 	initially, 	the appointments 	proposals
referred to 	Respondent's 	"instructional 	and programmatic" 	needs
in determining the 	availability of 	three-year appointments. 	The
term, 	"programmatic," 	(which was 	also the 	subject of 	extensive
definitional 	testimony) 	was deleted at the Association's
insistence, 	on the 	stated ground that 	it would permit 	arbitrary
action by departments 	opposed 	to 	three-year 	appointments.
Respondent presented evidence 	that Marde Gregory, 	the
Association's 	chief negotiator, 	at 	one point acknowledged that
instructional 	need 	"in one 	sense" 	includes programmatic 	need, 	and
that Robert Bickal, 	on agreeing to delete the term, 	"program-
matic," 	stated that 	instructional 	need 	flows 	from 	(or 	is 	the
residue of) 	programmatic need. 	Neither of these 	isolated and
rather vague 	statements 	establish 	that 	the 	parties 	agreed that
Respondent would 	have 	the 	broad-based 	discretion 	in post-six-year
appointments 	claimed by Respondent's witnesses. 	To 	the 	contrary,
the 	credible 	evidence establishes 	that 	the Association requested
that the word, 	"programmatic," 	be deleted from Article VII 	for
the 	stated purpose 	of 	preventing 	arbitrary 	action 	by departments
opposed to 	three-year appointments, 	and 	that 	in deleting the
term, 	Respondent 	acknowledged that unless 	a program or 	curriculum
was 	changed or eliminated by the 	academic 	senate, 	three-year
appointments 	would be mandatory, 	and based only 	on 	instructional
need 	and 	excellence.
11

the 	parties 	clearly agreed to 	this. 	The 	strong preponderance 	of
the evidence, 	however, 	is to the contrary. 	It is undisputed that
during negotiations, 	the Association's representatives repeatedly
expressed a 	serious 	concern that 	certain departments, 	fearful 	of
the 	"soft money" 	basis 	for 	funding lecturer positions, 	would be
recalcitrant 	in making three-year 	commitments, 	and 	that 	Bickal
assured those representatives 	that under the agreement, 	this
would not be permitted. 	There 	is 	also no dispute 	that 	the
Association's 	representatives 	specifically 	asked 	if 	there 	would
be 	any quotas 	placed on three-year 	appointments, 	and 	that 	Bickal
assured 	them 	that 	this 	would not 	happen.
Also highly 	significant 	in this 	determination 	is 	the 	fact
that before 	agreeing to the appointments 	article, 	Respondent had
carefully 	calculated the 	number 	of 	lecturers 	who would be
eligible 	for post-six-year reviews, 	and had concluded that 	the
number would be small, 	perhaps 	15%-16%. 	In addition, 	Respondent
was 	fully aware 	that even 	that number would be 	reduced 	through
terminations 	and 	failures 	to obtain 	"excellent" 	ratings 	in the
reviews. 	Thus, 	while the 	somewhat dire 	implications 	that 	some
Respondent's 	witnesses 	predicted would 	arise 	from 	interpreting
the 	agreement 	to 	exclude 	financial 	considerations 	from 	these
appointments 	might be true 	if 	applied to 	a 	substantial 	portion 	of
Respondent's 	faculty, 	the evidence 	establishes 	that the parties
understood 	that Article VII 	would 	only 	apply 	to 	a very 	small
percentage 	of 	the 	entire 	faculty budget.
12

Furthermore, 	Bickal, 	when testifying, 	initially supported
the 	interpretation of 	the Association's witnesses when he 	stated:
All right. 	Instructional 	[need] 	meant pretty
much, 	I think, 	what the term would suggest,
that there was 	ongoing need in an area 	of 	-
in 	an academic 	discipline 	for which a
lecturer had been or was 	to be 	employed.
Bickal 	then defined the 	term, 	"programmatic 	need," 	and 	included
resource 	considerations 	in his definition of 	that term. 	Later 	in
his 	testimony, 	Bickal was 	again asked to 	state what he understood
the term, 	"instructional need," 	to mean, 	and this time, 	he added
that 	it 	included the anticipated resources 	to 	support 	a 	three-
year appointment. 	Bickal 	further added that 	funding and
appointment decisions 	are 	"inextricable." 	When called as 	a
rebuttal witness near the close of the hearing, 	however, 	Bickal
testified that 	in determining the 	percentage 	level 	of 	the 	three-
year appointments, 	Article VII 	(C)(l)(b) 	permits a reduced
percentage 	appointment 	based 	on 	the 	difficulty 	in 	projecting 	the
"level 	of work" 	over the three-year period. 	At that point,
Bickal 	made 	no reference 	to 	financial 	considerations. 	Based on
the 	foregoing, 	it 	is 	concluded that at no time did Bickal 	state
to 	the Association's 	representatives 	that 	financial
considerations would be 	a determinative 	factor 	in Article VII 	(C)
reappointment decisions 	and that, 	in fact, 	he understood that
financial 	considerations would not be a 	factor, 	at 	least beyond
13

the decision as 	to whether 	specific 	courses would be taught, 	as
opposed 	to 	broader 	financial 	considerations.7
Finally, 	with respect to 	finances, 	the record establishes
that the 	parties 	agreed 	to 	deal 	with unanticipated 	financial
problems by virtue 	of 	layoffs, 	and not by limiting initial 	three-
year appointments. 	The Association had initially proposed 	a
"faculty displacement" 	article which afforded 	substantial 	job
security for unit members. 	It 	is 	undisputed that when Respondent
initially 	agreed 	to 	the 	concept 	of 	three-year 	appointments,
Bickal 	insisted 	that 	a 	traditional 	layoff 	provision replace 	the
faculty displacement proposal 	to 	cover 	financial 	emergencies. 	In
his 	comments on February 7, 	1986, 	when the parties reached
tentative agreement on Article VII, 	Bickal 	stated, 	"Now that we
have mandatory, 	multiple year appointments, 	the layoff procedure
becomes 	important." 	The Association 	subsequently agreed to 	a 	far
7Bickal's 	testimony, 	that he 	told the Association's
representatives 	that resources 	would be 	considered both before
and after three-year appointments, 	is not credited. 	Said
testimony 	conflicts 	with 	the 	documented 	bargaining 	history 	of
Article VII, 	and it is highly unlikely that the Association, 	in
agreeing to a layoff proposal, 	would have also agreed, 	in effect,
to give Respondent 	"two bites 	at the apple" 	in limiting
appointments. 	At any rate, 	even if Bickal did, 	at some point
during negotiations, 	make 	such a statement, 	the language agreed
to by the 	parties 	and Bickal's 	statements 	on February 	7 	override
any mid-point positions he may have taken. 	In addition, 	any
statements 	made 	by Respondent's 	other negotiating 	team members 	at
various 	mid-points 	in the 	negotiations 	which would 	conflict with
this 	interpretation are 	irrelevant. 	In this regard, 	the
Association was 	entitled to rely on Bickal's 	statements 	as 	chief
negotiator, 	and not 	on any mixed 	signals 	that may have 	been given
by lesser authorities. 	Again, 	it is the 	final 	agreement of the
parties 	that 	is 	determinative, 	and not their ever-changing
postures 	during negotiations.
14

more 	restrictive 	layoff 	article 	than 	the 	provisions 	contained 	in
its 	faculty displacement proposal. 	Thus, 	the parties
specifically agreed that 	in exchange 	for more 	traditional 	layoff
provisions, 	financial 	considerations would be deferred to layoff
decisions.8
Based on the 	foregoing, 	it is 	concluded that the parties
agreed, 	in effect, 	by virtue of Article VII, 	that if courses were
going to be taught 	for the next three years by a 	lecturer, 	as
opposed to 	tenured 	faculty or 	teaching 	assistants, 	eligible
lecturers 	would 	be 	reviewed 	and would receive 	three-year
appointments 	if rated excellent. 	It 	is 	also 	concluded that 	the
three-year 	appointments 	were 	to be 	effective 	immediately upon
completion of the 	six-year review, 	and Bickal's testimony, 	that
multiple-year 	appointments 	would 	only 	commence 	in 	the 	appointment
subsequent to the 	six-year review appointment, 	is 	not 	credited.9
'This 	conclusion is 	reinforced by Bickal's 	comments 	at 	the
February 20, 	1986 bargaining session, 	as reflected by
Respondent's bargaining notes, 	that Respondent was 	proposing
layoff 	language 	". 	. 	. a s 	the quid pro quo for appointments 	and
multiple year appointments when circumstances 	justify. 	Otherwise
it would be difficult 	to make 	these 	appointments."
9Gregory 	credibly 	denied 	that 	any 	such 	understanding was
reached, 	none 	of 	Respondent's 	other witnesses 	contended that 	this
was 	agreed to or is 	a valid interpretation and Respondent, 	in
practice, 	has never adopted such an interpretation. 	Bickal, 	and
several 	Respondent's other witnesses, 	had a disturbing tendency
to 	justify 	their 	conduct 	on 	the basis 	of ex post 	facto
contractual manipulations. 	Article VII 	(C)(l)(c) 	reads, 	"Review
for 	subsequent 	three-year 	appointments 	will 	normally 	occur 	during
the 	second year 	of 	each three-year appointment." 	This 	clearly
does 	not limit three-year 	appointments 	to 	those 	subsequent 	to 	the
appointment at the 	six-year review. 	On the other hand,
Respondent's November 7, 	1985 proposal 	for Article VII., (C)(l)(c)
read, 	"Provided that the 	criteria 	set 	forth in paragraph C-l-a
above 	[instructional 	and programmatic 	need, 	and excellent
15
This

performance] 	continue to be met, 	subsequent appointments 	shall 	be
for three 	(3) 	year periods." 	Arguably, 	that language would
support Bickal's 	testimony, 	which is 	probably why it was
changed. 	Bickal 	surely must realize 	that 	the 	current 	language
and the parties' 	interpretation thereof does 	not 	support his
testimony, 	and 	such a 	contrivance 	only weakens 	the 	persuasiveness
of Respondent's 	arguments.
Implementation of Article VII:
Implementation 	of 	the 	collective 	bargaining 	agreement 	has
largely been 	left to Respondent's 	campus 	administrators.
Respondent 	produced 	several 	witnesses 	and 	documentary 	evidence,
including 	interpretative 	campus 	publications, 	showing 	the 	various
meanings 	given to 	the 	appointments 	article by the 	office 	of 	the
President, 	and by the 	Santa Cruz 	and Los Angeles 	administrations.
Those 	interpretations 	are by no means 	consistent, 	even within the
campuses, 	and are marked by the re-infusion of 	the 	term,
"programmatic 	need," 	and ever-widening definitions 	of 	the 	term,
"instructional 	need."10 It 	is 	undisputed 	that 	the Association
did not protest 	any of 	these 	generalized 	interpretations, 	and did
not 	file any unfair practice 	charges 	thereon. 	The evidence,
10By way of example, 	Respondent's Contract Administration
Manual 	dated October 	1986 	contains 	a much broader definition 	of
the 	term, 	"instructional 	need," 	than does 	the 	July 	1986 	version
of the 	same manual. 	Neither, 	however, 	includes 	financial
resources 	as 	a 	factor to be 	considered, 	as 	contrasted with
Respondent's 	UCLA Summary of 	Policy and Procedure, 	dated October
20, 	1986, 	which includes as a factor the determination that
sufficient 	funding will 	be 	available 	to 	support 	three-year
appointments. 	With respect to the more 	important issue of
whether 	the parties 	agreed to 	include 	financial 	resources 	as 	a
consideration, 	the October 20, 	1986 Contract Administration
Manual, 	even in its broadly phrased terms, 	contends: 	"As was
stated at the bargaining table, 	a whole 	series 	of academic
decisions will need to be made at the campus, 	with the 	final
residue 	being 	the 	determination 	regarding 	instructional 	need."
(Emphasis 	added.)
16

however, 	reflects 	that no 	specific 	adverse 	action was 	taken
during 	the 	first 	academic 	year 	under 	the 	agreement 	based 	on 	those
interpretations. 	Rather, 	and apparently due to the relatively
few lecturers 	eligible 	for 	post-six-year reviews 	at 	Santa 	Cruz
and Los Angeles, 	the Association was 	satisfied that Respondent
was 	complying with Article VII.11
The 	situation radically 	changed 	in 	the 	second year 	that 	the
parties 	operated under 	the 	agreement. 	The Association's 	evidence
focused on the writing programs 	at the 	two campuses, 	although
some 	evidence was 	presented as 	to violations 	in other departments
at those 	campuses. 	At Santa Cruz, 	the then Academic Vice
Chancellor 	sent letters dated February 	5, 	1987 	to the deans 	of
the 	College 	of 	Letters 	and 	Science 	specifically 	limiting 	long-
term 	funds 	for 	temporary appointments 	to 	70% 	of 	the 	faculty pool
for long range 	curricular need, 	and 	specifying the number 	of
positions 	that 	could be 	filled 	in 	the divisions 	based on 	long-
term need. 	Those 	limitations 	were 	based 	on admittedly very
conservative 	college-wide resource projections. 	Roswell
Spafford, 	a 	lecturer in the writing program at 	Santa Cruz 	and the
Association's 	contract administrator 	for that campus, 	credibly
testified that 	she 	first 	saw one of these 	letters 	in June 	1987.
11The evidence 	shows 	that Respondent, 	while 	sometimes
adopting a broad interpretation of Article VII, 	ultimately
justified 	its 	refusal 	to 	grant 	some 	lecturers 	long-term
appointments 	based 	on anticipated 	changes 	in 	course 	offerings 	or
plans 	to 	increase 	the 	level 	of 	tenure-track 	faculty 	teaching
those 	courses, 	which are both 	factors which the Association
Considers within the 	ambit of 	instructional 	need.
17

Prior to this, 	Spafford had been generally informed, 	at a writing
program meeting, 	that there would be 	some 	sort of 	limit placed on
the 	number of 	lecturers who would be permitted to undergo post-
six-year reviews. 	Spafford 	testified 	that 	the meeting 	took place
in the 	last week of May 	1987. 	In a grievance dated June 	16,
1987, 	alleging the 	limit on long-term appointments 	as violative
of the agreement, 	however, 	Spafford set forth May 	18, 	1987 as the
"date 	of occurrence or knowledge" 	of 	the alleged contract
violation.12
In a letter dated October 	12, 	1987, 	Bickal, 	acting in his
role as 	Director of Labor Relations 	for the Santa Cruz 	campus,
denied 	that 	any contractual 	violation had taken place, 	but
decided that 	it would be 	more 	appropriate 	to place 	dollar
ceilings 	on 	long-term appointments 	rather 	than to 	express 	the
limits 	in terms of positions. 	On November 4, 	1987, 	those limits
were 	communicated to the 	various 	college divisions. 	Michael
Cowan, 	Dean of Humanities, 	set forth additional reasons 	for
limiting the 	number 	of 	long-term 	appointments 	in 	the writing
program, 	including the use of 	"temporary lecturers," 	"ladder
rank" 	faculty 	(e.g. 	tenure-track faculty) 	and teaching
assistants. 	The credible evidence, 	however, 	establishes that
Cowan was 	aware 	that 	it was 	highly unlikely that 	any of 	these
courses, 	at least in the writing program, 	were likely to be
12The 	parties 	agree 	that Article VII 	only permits 	grievances
pertaining to violations 	of 	that Article 	to be processed to 	the
last pre-arbitration level.
. . .
18

taught by 	"ladder rank" 	faculty, 	or that additional 	teaching
assistants would be 	used to 	teach 	the 	courses 	then taught by
lecturers. 	In addition, 	Spafford and Paul 	Skenazy, 	then the
Chairman of 	the 	Santa Cruz writing program, 	credibly testified
that 	Cowan 	admitted 	to 	them 	that 	the 	financial 	limitations 	placed
on 	him 	by 	the Academic 	Vice 	Chancellor 	had 	influenced 	his
decisions 	regarding 	allocating 	long-term 	appointments 	to 	the
writing program, 	and that while he advocated a 	"mix" 	of
instructors 	in the program, 	it would have been a different mix
without 	the 	financial 	limit 	on long-term appointments. 	Cowan did
not 	testify.
In letters dated January 22, 	1988, 	Cowan set specific 	limits
on the 	number of 	long-term positions 	in 	the various 	departments
in the College of Letters 	and Science. 	In the writing program,
Skenazy, 	who had vigorously opposed the 	limit on 	long-term
appointments 	as 	both educationally unsound 	and 	as 	a 	violation 	of
the 	agreement, 	commenced the 	six-year reviews. 	More 	lecturers
were 	reviewed 	as 	excellent 	than 	full-time 	positions 	were
available. 	Some 	of 	these 	lecturers 	had worked 	full-time 	the 	year
before, 	while 	others had been employed on part-time 	appointments.
Rather 	than 	completely 	terminating 	the 	employment 	of 	some 	of 	the
lecturers13 Skenazy, 	under protest, 	assigned all of the lecturers
13The 	parties 	agree 	that 	the 	prefatory language 	of Article
VII 	(C)(l)(a) 	means 	that unless 	a 	lecturer receives 	a three-year
appointment 	at 	some percentage 	of 	employment 	level 	after 	six
years, 	the lecturer cannot receive a shorter appointment, 	and
therefore, 	is 	ineligible 	for any 	further employment at that
campus.
19

who were rated as 	excellent 	to part-time, 	three-year
appointments. 	Spafford 	credibly 	testified 	that 	lecturers 	in
other 	departments 	similarly 	received 	reduced-level 	three-year
appointments. 	It is undisputed that no lecturer at Santa Cruz
was 	terminated as 	the 	result of 	the 	financial 	limits 	placed on
the departments, 	and that the 	lecturers were 	free to, 	and in 	some
cases did, 	receive 	supplemental 	appointments up to 	full-time
positions 	on a year-by-year basis.14
The 	conduct 	complained of 	at the 	Los Angeles 	campus 	stems
from a decision by Raymond L. 	Orbach, 	Provost of 	the College 	of
Letters and Science, 	on October 5, 	1987, 	to set a limit on the
allocation 	of 	long-term 	appointments 	for 	the writing program
there. 	The Association 	contends 	that this 	limit 	constituted an
impermissible quota, 	and was 	based on considerations 	not 	agreed
to in Article VII; 	in particular, 	a preference that the
University 	should hire new lecturers, 	even if 	it meant denying
appointments 	to 	lecturers 	eligible 	for 	three-year 	appointments
under Article VII. 	The Association argues 	that as 	the result of
Orbach's 	decision, 	lecturers who qualified 	for three-year
appointments 	commencing 	in 	the 	1988-1989 	academic 	year were
denied 	employment.
At the Los Angeles 	campus, 	Charles Linwood Batten, 	then the
Director 	of 	that campus' writing program, 	and Herbert Morris,
14It 	appears 	that 	all 	of 	the writing program 	lecturers
received 	supplemental 	appointments 	for 	the 	1988-1989 	academic
year; 	however, 	it also appears that lecturers 	in at least one
other department 	did not 	obtain 	supplemental 	appointments.
20

Dean of Humanities, 	both recommended that there was 	a 	sufficient
anticipated 	instructional 	need 	in 	the 	writing 	program 	to 	offer,
in effect, 	all 	of the 	lecturers 	at the 	six-year review level
three-year appointments, 	commencing in the 	1988-1989 	academic
year, 	subject to their being reviewed as 	excellent 	instructors.
Batten 	and Morris 	both testified 	that 	it was 	highly unlikely 	that
members 	of 	the 	faculty 	senate would be 	teaching 	courses 	in the
writing program and that, 	if 	anything, 	more 	courses would be
offered 	in the 	future.
Their recommendations were rejected by Orbach who, 	in
effect, 	cut the number of potential 	three-year appointments 	in
half. 	Carol P. 	Hartzog, 	Vice Provost for Academic
Administration, 	prepared a memorandum dated October 5, 	1987,
which was 	sent 	to Morris 	along with Orbach's 	decision on 	three-
year 	commitments 	for 	the 	Los Angeles writing program. 	The
memorandum 	states 	that 	Orbach 	had projected 	an 	overall 	increase
in the 	number of 	tenured 	faculty 	in the 	college 	"during perhaps 	a
five-year period," 	and 	a 	corresponding reduction 	in 	the
anticipated need 	for 	temporary 	lecturers. 	Rather 	than 	allocate
that reduction to 	the departments most 	likely to experience 	a
change 	in 	instructor 	composition, 	Orbach had determined that 	the
reductions 	should 	be 	equally 	distributed 	throughout 	the 	college
divisions.
Even with that reduction, 	however, 	there were enough
positions 	available to grant 	full-time, 	post-six-year
appointments 	to 	all 	of 	the writing department 	lecturers 	eligible
21

for review during the 	life of the agreement. 	Nevertheless, 	the
October 	5, 	1987 memorandum states 	that 	since 	60% 	of the total
lecturers 	eligible 	for 	six-year reviews 	over the 	life 	of 	the
agreement were eligible 	for review in that year, 	only 	60% 	of
their positions 	should be 	committed 	for 	three-year 	appointments,
and that an additional 	long-term position was 	cut 	on the 	basis 	of
possible 	future 	cuts 	in enrollment 	and 	staff 	positions 	allocated
to the college.
Orbach, 	in his testimony, 	admitted that this allocation was,
in 	fact, 	based on a decision to reach a ratio of three 	lecturers
on 	one-year 	appointments 	to 	every 	one 	lecturer 	on 	a 	three-year
appointment. 	Orbach testified 	that 	if 	he 	approved all 	of 	the
long-term positions requested, 	this would result 	in roughly a
one-to-one 	ratio 	between 	short-term 	and 	long-term 	appointees.
According to Orbach, 	this would be undesirable because 	"the
historic 	character 	of 	the writing program would be 	changed,"
because 	he 	prefers 	that 	"there 	should be 	turnover 	in the writing
program," 	and because 	he 	feels 	that 	Respondent 	"should bring 	in
as 	many new people 	into 	the writing program" 	as 	it 	can 	find who
are 	qualified 	for the position. 	Having targeted 	this 	ratio,
Orbach testified 	that he 	felt 	it was 	only 	fair to 	apportion the
number of 	appointments 	on a 	yearly basis 	so that 	all 	lecturers
eligible 	for 	six-year reviews during the 	life of 	the 	contract
would have 	an 	equal 	chance 	to obtain three-year 	appointments.
Due 	to attrition and non-excellent reviews, 	several writing
program 	lecturers 	did not participate 	in, 	or 	failed to
22

successfully complete, 	the review process. 	Enough lecturers 	did
complete 	the review process, 	and were rated as 	excellent
instructors 	(through two levels of review), 	that there were 	four
more 	lecturers 	eligible 	for 	long-term 	appointments 	than 	full-time
positions 	available. 	Rather than assigning some 	or all 	of 	the
instructors 	to part-time appointments, 	an additional 	screening
process 	for 	"excellence" 	occurred, 	resulting in eight lecturers
receiving three-year appointments 	and 	four, 	who had otherwise
successfully completed 	the 	review process, 	being denied any
future 	employment.
The 	record does not disclose 	the date when the Association
first 	learned 	that 	the 	allocation 	for 	three-year 	appointments 	at
UCLA had been reduced by Orbach. 	None 	of 	the Association's
representatives 	testified as 	to when they, 	or any other
representative, 	became aware of the October 5, 	1987 reduction in
long-term appointments 	for the writing program, 	or the 	reasons
therefore. 	The record establishes 	that a grievance was 	filed
concerning 	the 	reduction 	of 	long-term 	commitments 	in that
program, 	and that a 	step II 	grievance meeting took place 	on
November 	3, 	during which Morris 	explained the 	reasons 	for 	the
reduction. 	The record, 	however, 	does not establish that the
Association 	filed or participated 	in that 	grievance, 	or 	that 	this
constituted 	the 	first date 	that 	the Association 	learned 	of 	the
reduction or 	the reasons 	therefore.
The 	collective 	bargaining 	agreement permits 	employees 	to
file 	and process grievances up to, 	but not including,
. . .. .
23

arbitration. 	The agenda minute 	for the November 	3, 	1987 writing
program step II grievance lists, 	as attendees, 	Morris, 	Hartzog,
Robert Cullen, 	Lisa Gerrard, 	Jeanne Gunner and Cynthia Tuell.
Tuell 	appears 	to have been the 	grievants' 	spokesperson. 	Tuell,
Gerrard 	and Cullen 	are 	elsewhere 	identified as 	lecturers 	in 	the
writing program eligible 	for post-six-year reviews. 	Morris 	and
Hartzog, 	of course, 	are representatives of Respondent, 	and it
appears 	that Gunner was 	also present as 	a management
representative. 	Susan Griffin, 	an Association representative,
summarily testified that 	she was 	a 	"representative" 	in the
writing program grievance, 	but was 	not 	asked the 	nature 	or dates
of her 	involvement 	therein.
The record also establishes 	that 	this 	grievance was 	denied
by Respondent at 	step III, 	but does 	not disclose 	the date 	of that
denial, 	or how long the entire 	grievance process 	lasted. 	Griffin
also 	testified 	concerning her 	participation 	in 	grievances 	arising
from denials 	of, 	or reductions 	in the percentage of 	long-term
commitments 	in other departments at the Los Angeles 	campus, 	and
Respondent's 	explanations 	for those actions. 	The Association did
not, 	however, 	establish when those other cuts were made, 	when it
first learned of them 	(or the reasons therefore), 	whether the
reductions were made 	for the 	same reasons 	as 	in the writing
24

program or how long 	it 	took to process 	those 	disputes 	through the
grievance procedure.15
THE 	ISSUES
1. 	Were 	either or both of 	the 	charges 	untimely 	filed?
2. 	Did Respondent repudiate Article VII 	of the 	agreement 	in
violation of 	the 	HEERA at 	either 	its 	Santa Cruz 	or 	its 	Los
Angeles 	campus?
ANALYSIS AND CONCLUSIONS 	OF 	LAW
Timeliness:
Pursuant to 	section 3563.2(a) 	of the HEERA, 	the PERB cannot
consider unfair practice 	allegations 	occurring more 	than 	six
months 	prior to the 	filing of a 	charge. 	With respect to
unilateral change allegations, 	the PERB has, 	in some cases, 	ruled
that the 	time 	period commences 	as 	of 	the date when the 	affected
party knew or 	reasonably 	should have 	known 	that 	the 	change was
implemented, 	while in a more recent case, 	the time period was
held to 	commence 	as 	of the date 	of 	actual 	or 	constructive
knowledge of 	a 	clear intent to 	implement the 	change. 	El 	Dorado
15By way of example, 	lecturer Donna Brinton, 	in the
Linguistics 	Department, 	received a reduced-percentage 	three-year
appointment, 	which 	she 	grieved. 	The record reflects 	that her
grievance was 	processed at 	least 	for the period November 	2, 	1987
(step II meeting) 	through January 	12, 	1988 	(Respondent's 	letter
denying the grievance at 	step III). 	The record does not reflect,
however, 	when the Association 	first learned of this 	action or 	the
reasons 	therefore. 	More 	significantly, 	while the January 	12
letter 	reiterates 	Respondent's 	broad 	interpretation 	of 	the 	term,
"instructional 	need," 	it 	also 	specifically 	cites 	Respondent's
intention to hire more 	"ladder rank" 	faculty to 	teach the 	courses
as 	the 	reason 	for 	the percentage 	level 	of 	her three-year
appointment, 	a reason the Association does 	not dispute 	as 	being
within the 	ambit of 	instructional 	need.
25

Union High School District 	(1984) 	PERB Decision No. 	382;
Healdsburg 	Union High 	School 	District 	(1984) 	PERB 	Decision
No. 	467; 	cf. 	Victor Valley Community College District 	(1986)
PERB Decision No. 	570. 	The current interpretation of the
National 	Labor 	Relations 	Board appears 	to be 	that notice 	of
implementation, 	rather than notice 	of an intent to implement
unilateral 	changes, 	governs the commencement of the 	six-month
period 	set 	forth in 	section 	10(b) 	of 	the National 	Labor Relations
Act. 	Harvard Folding Box Company, 	Inc. 	(1984) 	273 NLRB 841 	[118
LRRM 	1209]. 	The PERB has 	also held that in computing the 	six-
month period, 	the 	first day that the misconduct takes place 	is
excluded and the 	last day 	is 	included. 	Saddleback Valley Unified
School District 	(1985) 	PERB Decision No. 	558.
Respondent has 	alleged that pursuant 	to 	HEERA 	section
3563.2, 	subdivision 	(a),16 the charges were not filed in a timely
manner. 	While 	Respondent alleges 	timeliness 	as 	an affirmative
defense, 	the PERB, 	in its recent decision in California State
University, 	San Diego 	(1989) 	PERB Decision No. 	718-H, 	held that
section 	3563.2 	is 	a 	jurisdictional matter, 	and not an affirmative
16HEERA section 3563.2, 	subdivision 	(a) 	provides:
Any employee, 	employee organization or
employer 	shall 	have 	the right 	to 	file 	an
unfair practice charge, 	except that the board
shall not issue 	a 	complaint in respect of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
26

defense.17 Even if 	section 	3563.2(a) 	were 	still 	considered an
affirmative defense, 	it would be 	concluded that 	once 	Respondent
has 	properly raised 	that defense, 	and established that 	the
alleged unilateral 	change 	took place 	outside 	the 	six-month
period, 	the burden would 	shift to the Association to 	establish
that 	it did not 	learn of 	the 	change 	or 	the 	reasons 	therefore
until 	a date within the 	six-month period, 	or that the 	statute
should be tolled. 	As 	a 	jurisdictional matter, 	it is 	clearly the
Association's 	burden to 	establish timeliness 	as 	part of 	its 	prima
facie case.
The charge in Case No. 	SF-CE-2 72-H was 	filed on November 	17,
1987, 	while the 	charge in Case No. 	LA-CE-235-H was 	filed on May
4, 	1988. 	With respect to the Santa Cruz 	charge, 	the record
establishes 	that 	the 	earliest 	date when 	the Association may 	have
first 	gained knowledge 	that 	some 	limit was 	going to be 	placed on
three-year appointments was May 	18, 	1987 	(pursuant to Spafford's
grievance letter), 	and even that knowledge was of a general 	and
unexplained nature. 	Thus, 	the charge in Case No. 	SF-CE-272-H was
filed 	in a 	timely manner.
The Association has 	failed to 	establish that 	the 	charge 	in
Case No. 	LA-CE-235-H was 	filed in a timely manner. 	The record
reflects 	that 	the 	purported unilateral 	change 	in the 	agreement,
as applied to the writing program, 	was made on October 5, 	1987,
17In 	so ruling, 	the 	PERB overruled Walnut Valley Unified
School 	District 	(1983) 	PERB Decision No. 	289, 	and construed PERB
Regulation 	32644(b)(6) 	as 	to not require 	that timeliness 	be
raised 	as 	an affirmative defense.
27

outside 	the 	six-month period. 	The Association has 	failed to
establish that it 	first 	learned of 	this 	action, 	or the reasons
therefore, 	within the 	six-month period, 	despite the availability
of witnesses 	capable of 	testifying on that 	subject.
Although it 	is 	unlikely that the 	PERB will 	continue 	to
follow this doctrine, 	particularly in light of 	San Diego
Community College District, 	supra, 	existing precedent 	still
applies 	the 	principle 	of 	equitable 	tolling 	to 	cases 	arising under
the HEERA. 	California State University, 	Hayward 	(1987) 	PERB
Decision No. 	607-H.18 Under that principle, 	the 	six-month period
will 	be 	tolled during 	the 	time 	the 	charging party utilizes
existing grievance procedures, 	even 	if they do not provide 	for
binding arbitration, 	unless 	the respondent 	can 	show a 	substantial
prejudice 	to 	its 	rights. 	Victor Valley Community College
District 	(1986) 	PERB Decision No. 	570.
Even 	assuming 	that 	the 	principle 	of 	equitable 	tolling will
continue to be 	applied, 	the Association has 	failed to establish
the 	facts necessary to toll 	section 	3563.2(a) 	in Case
No. 	LA-CE-235-H. 	Thus, 	the Association has failed to establish
that 	it 	filed or meaningfully participated 	in 	the writing 	program
grievance, 	and more 	importantly, 	has 	failed to establish that 	the
processing 	of 	that grievance was 	of 	a 	sufficient duration to
18In San Diego Community College District, 	the 	PERB
overruled Walnut Valley 	"and its 	progeny" 	to 	the 	extent that 	they
require 	the 	statute 	of 	limitations 	to be 	raised as 	an affirmative
defense, 	but did not 	specifically overrule the principle 	of
equitable tolling. 	The implication is 	clear, 	however, 	that said
principle will 	no 	longer be 	applied.
28

bring the 	charge 	to within the 	six-month period. 	With respect 	to
the grievances 	in the other fields 	of instruction, 	the
Association has 	failed 	to 	establish how long 	those 	grievances
took to process, 	when those alleged unilateral 	changes were made,
when 	it 	gained knowledge 	thereof 	and whether 	those 	changes 	were
based on the 	same rationale 	as 	the writing program reductions.
In addition, 	it is well 	established that unilateral 	changes 	are
not 	continuing violations, 	and cannot be 	considered to 	fall
within 	the 	six-month period on that basis. 	San Dieguito 	Union
High School District 	(1982) 	PERB Decision No. 	194. 	Therefore, 	to
establish a violation 	for the writing program at 	UCLA, 	the
Association is 	required to 	establish that the 	charge was 	timely
filed with respect 	to 	Respondent's 	conduct which pertained 	to
that 	program.
Accordingly, 	it is 	concluded that the 	charge and complaint
in Case No. 	LA-CE-235-H must be dismissed.19
Respondent's 	argument, 	that the 	statute of 	limitations
commenced by virtue 	of 	the 	publication of 	the 	October 	1986
edition of 	The Call, 	or alternatively by virtue 	of pronouncements
made by its representatives earlier in 	1987, 	is rejected. 	As
noted above, 	Respondent's 	publications 	and representations 	were
inconsistent, 	general 	in nature 	and were 	not 	addressed to 	actions
perceived by the Association as 	repudiations 	of 	the 	agreement.
In this 	regard, 	the Association was not obligated to 	file 	a
charge 	every time 	a representative 	of 	Respondent 	took a position
inconsistent with what the 	parties 	agreed to 	at 	the 	bargaining
table. 	It 	is 	also noted that the early 	1987 meetings 	primarily
concerned changes 	in course 	offerings 	and increases 	in 	the 	number
of tenure-track 	faculty teaching 	courses, 	which the Association
concedes 	are valid components 	of 	the term, 	"instructional 	need."
29
.. . " . .

The Unilateral Changes at U.C. 	Santa Cruz:
Respondent does 	not dispute 	that the 	appointments 	article
pertains 	to matters within the 	scope of representation, 	and
Article VII 	clearly relates 	to 	such in-scope 	subjects 	as 	job
security, 	length of employment, 	hours of employment, 	wages and
job performance evaluations. 	It is 	an unfair practice 	for an
employer 	to 	alter 	the 	clear 	terms 	of 	a 	collective 	bargaining
agreement without 	the 	consent of 	the 	exclusive 	collective
bargaining representative. 	Grant 	Joint Union High 	School
District 	(1982) 	PERB Decision No. 	196; 	South San Francisco
Unified School District 	(1983) 	PERB Decision No. 	343; 	Palo Verde
Unified School District 	(1983) 	PERB Decision No. 	354. 20 If the
contractual 	language is 	clear and unambiguous, 	there 	is 	no need
to consider extrinsic, 	conflicting evidence as 	to what the
parties meant by their 	agreement. 	Marysville 	Joint 	Unified
School District 	(1983) 	PERB Decision No. 	314; 	cf. 	Rio Hondo
Community College District 	(1982) 	PERB Decision No. 	279. 	It is
particularly appropriate 	in this 	case 	to hold the 	parties 	to the
apparent 	language 	of 	their memorandum of 	understanding, 	given the
length of the negotiations, 	the 	sophistication of the
20Respondent 	argues 	that 	it did not violate 	the 	HEERA
because 	its 	past practice 	had been to 	consider 	general 	financial
projections 	in appointment decisions, 	and that it merely
continued that practice. 	This 	argument 	clearly misses 	the 	point
given the 	intervening event 	of 	the 	collective 	bargaining
agreement. 	In agreement with the Association, 	past practice
prior to a 	contract 	is 	irrelevant where 	the parties 	contractually
agree to 	change the practice which is 	the 	subject of the dispute.
Lake Elsinore School District 	(1986) 	PERB Decision No. 	563;
Eureka City School District 	(1985) 	PERB Decision No. 	528.
30

negotiators, 	and the multitude of review levels 	and 	sources 	of
input which were 	utilized prior to 	execution of 	the 	agreement.
As noted above, 	it is also appropriate, 	to the extent that any
interpretation of the agreement is necessary, 	to 	focus on the
conduct of Gregory and Bickal, 	as 	lead negotiators, 	rather than
on 	the 	statements 	and opinions 	expressed 	by their 	supporting
casts.
It has 	been 	found herein that Article VII 	is 	clear 	and
unambiguous 	in that 	it 	sets 	forth mandatory criteria which, 	if
satisfied, 	require three-year appointments. 	The only potentially
ambiguous 	term among those 	criteria is 	the phrase, 	"instructional
need," 	and to the 	extent that 	said term may be ambiguous, 	the
credited evidence 	establishes 	that 	the 	parties 	adopted 	the
dictionary definition of that term, 	e.g., 	that Respondent
anticipated 	that 	courses 	taught by 	a 	lecturer under review would
continue 	to be 	taught by a 	lecturer 	for 	the relevant 	three-year
period. 	Respondent's 	contention 	that 	the Association 	agreed 	or
understood that 	financial 	resources 	could be 	considered, 	at 	least
beyond 	the 	decision as 	to whether 	the 	specific 	courses 	in
question 	(as 	opposed to overall departmental, 	college or campus-
wide 	financial planning) 	would continue to be taught, 	has been
rejected, 	notwithstanding the possibility that 	such
considerations 	may have 	been mentioned 	at 	various 	mid-points 	in
the negotiating process. 	While this 	conclusion is based on a
number of 	factors 	contained in the record, 	the 	omission of 	such
financial 	factors 	from Article VII, 	the history of the 	layoff
31

article 	and Bickal's 	statements 	when the 	parties 	reached
tentative agreement on February 7, 	1986, 	are the most persuasive
factors 	in this determination.
With respect to Article VII 	(C)(l)(b), 	the percentage level
of three-year appointments, 	it is 	concluded that the parties
agreed 	that 	Respondent 	could 	assign reduced 	three-year
appointments, 	but only on the basis 	of the 	same 	considerations
contained in Article VII 	(C)(l)(a). 	While Article VII 	(C)(l)(b)
does not expressly adopt those 	criteria, 	it does not add any
additional 	standards, 	and since 	it is part of the 	same article,
dealing with the 	same 	group of employees, 	the 	logical
interpretation would be 	that no 	additional 	standards 	were
contemplated. 	Any ambiguities 	raised on this 	issue were 	resolved
by Bickal's testimony, 	near the conclusion of the hearing, 	that
he 	intended, 	and told Gregory, 	that the percentage 	of 	long-term
appointments would be based on the 	anticipated workload. 	That,
in essence, 	is what the term, 	"instructional need," 	has been
found to mean.
Based on the 	foregoing, 	it 	is 	concluded that Respondent
repudiated Article VII 	at the 	Santa Cruz 	campus. 	It is
undisputed 	that 	Respondent 	had 	determined 	an 	anticipated
instructional 	need 	for 	the 	courses 	in question 	for 	the relevant
three-year periods, 	and that lecturers who were rated as
excellent 	instructors 	through 	the 	normal 	review process 	received
reduced 	appointments.
32

At the 	Santa Cruz 	campus, 	overall College of Letters 	and
Science 	financial 	considerations, 	and highly conservative 	ones 	at
that, 	clearly impacted on the 	levels 	of 	employment 	offered 	to
lecturers 	in 	several departments. 	Dean Cowan's 	claim that a
"mix" 	of temporary lecturers, 	teaching assistants and tenure-
track 	faculty would be 	appropriate, 	at least 	in the writing
program, 	is 	highly 	suspect 	in light of 	the 	evidence presented
that, 	in fact, 	most of those courses will 	continue to be taught
only by 	lecturers. 	Even 	crediting 	such a 	generalized preference,
two 	witnesses 	credibly 	testified 	that 	Cowan 	admitted 	that 	his
decision regarding the 	"mix" 	of 	instructors was 	influenced by the
financial 	constraints 	placed on him. 	Therefore, 	it is 	apparent
that, 	absent those constraints, 	more 	long-term commitments would
have been made, 	resulting in higher percentage 	level 	appointments
at Santa Cruz.
Accordingly, 	it is 	concluded that Respondent has 	engaged in,
and 	intends 	to 	continue engaging in, 	a material 	repudiation of
the agreement in violation of sections 	3571(a),21 (b) 	and 	(c) 	of
21It is clear that many, 	if not most, 	of the unit employees
at 	Santa Cruz 	are 	aware 	that Respondent has 	imposed 	impermissible
restrictions 	on long-term appointments resulting, 	at least, 	in
reduced levels 	of 	appointments. 	It is reasonable 	to assume 	that
such conduct would tend to 	cause 	employees 	to 	lose 	confidence 	in
the Association's 	ability to protect 	their 	negotiated wages,
hours, 	and other terms 	and conditions 	of employment. 	Said
conduct, 	therefore, 	constitutes interference with the exercise of
protected employee rights and violated section 	3571(a). 	San
Francisco Community College 	District 	(1988) 	PERB Decision No.
703; 	San Francisco Community College District 	(1979) 	PERB
Decision No. 	105; 	cf. 	Tahoe-Truckee Unified School District
(1988) 	PERB Decision No. 	668.
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the 	HEERA.22
THE 	REMEDY
Where 	an 	employer unilaterally 	changes 	terms 	and 	conditions
of 	employment, 	the 	PERB typically orders 	the 	employer to 	cease
and desist 	from its 	unlawful 	action, 	to restore the 	status 	quo
ante, 	to comply with its 	bargaining obligations with the
exclusive 	representative 	and 	to make 	employees 	whole 	for 	any
damage 	they 	suffered as 	a result 	of 	the unlawful 	unilateral
change. 	Rio Hondo Community College District 	(1983) 	PERB
Decision No. 	292. 	The Association requests a 	system-wide remedy
in this 	case, 	generally alleging, 	but not having produced any
evidence, 	that 	similar conduct has 	occurred at other 	campuses.
Given 	the 	wide 	discretion 	Respondent has 	given 	its 	administrators
22The 	foregoing 	findings 	and 	conclusions 	necessarily reject
Respondent's 	argument that the Association, 	by its 	conduct during
negotiations, 	waived Respondent's right to 	consider overall
financial 	resources 	as part of 	its 	instructional 	need. 	With
respect to instructional 	"mix", 	it 	is 	concluded that Article VII
clearly prohibits 	the hire 	of new lecturers 	or reappointment 	of
lecturers with less 	than 	six years 	of employment 	in 	lieu of
granting 	three-year 	appointments 	to 	lecturers 	otherwise 	eligible
for 	such appointments. 	If Article VII 	established nothing else,
it 	gave 	eligible post-six-year 	lecturers 	a preference 	in hire
over these 	other employees. 	Respondent also unconvincingly
argues 	that 	the 	general management rights 	and waiver 	articles
establish a waiver by the Association. 	Where 	the parties have
negotiated 	specific 	provisions 	covering a 	subject within 	the
scope of representation, 	as is the case here, 	such provisions are
not 	defeated by general 	reservations 	of 	authority 	in management
rights clauses. 	Thus, 	by its terms, 	Article VII 	specifically
limits 	Respondent's discretion in the appointment process, 	and
clearly 	takes 	precedence 	over 	those 	portions 	of 	the 	agreement
which generally delineate 	Respondent's 	authority. 	The waiver
article 	does 	not 	establish a defense 	for 	the 	simple 	reason 	that
the parties did, 	in fact, 	negotiate the 	subject of the instant
dispute.
2 . . .
34

at each campus 	to implement the agreement, 	and the 	lack of
evidence of unlawful 	conduct other than at the two campuses, 	the
remedy will 	be 	limited to the 	Santa Cruz 	campus.23
With respect to that campus, 	a 	cease and desist order 	is
appropriate. 	No bargaining order 	shall 	issue because 	the
Association was 	not 	obligated 	to 	bargain 	concerning 	changes 	in
Article VII. 	As part of the restoration of the 	status quo ante,
Respondent 	shall 	be 	ordered, 	effective at the 	commencement 	of 	the
academic 	year after this 	Decision becomes 	final, 	to increase 	the
percentage 	level 	of 	any 	three-year 	appointments 	made 	in violation
of 	the 	agreement 	at the 	Santa Cruz 	campus 	to at least the
percentage 	level 	the 	lecturers 	held during the year prior 	to
their three-year appointments. 	In this regard, 	it is not
appropriate 	to 	speculate 	as 	to what 	the 	percentage 	of 	those
appointments would have 	been absent 	the 	influence 	of
impermissible 	considerations.
A back-pay order 	is 	appropriate 	to remedy the 	violations.
Respondent will 	be 	ordered to reimburse 	all 	lecturers who
suffered monetary losses 	as 	the 	result of 	its 	unlawful 	conduct 	at
the 	Santa Cruz 	campus, 	to the date that Respondent complies with
its 	increased appointment level 	obligations. 	Such losses will 	be
23The Association cites 	The Regents 	of 	the University of
California 	(1983) 	PERB Decision No. 	359-H, 	a decision which was
subsequently vacated by the PERB, 	for the proposition that a
system-wide order is appropriate. 	As a vacated decision, 	that
case does 	not establish a binding precedent. 	It 	is 	further noted
that 	the 	evidence 	in that 	case 	established 	a 	centrally-directed,
system-wide 	change 	in policy, 	which is 	exactly what the
Association has 	failed 	to 	establish herein.
35

reduced by any interim earnings 	by the 	employees, 	whether by
employment elsewhere, 	or by 	supplemental 	annual 	appointments 	at
that campus. 	Interest on these amounts 	shall be paid at 	10% 	per
annum.
It 	is 	appropriate 	that Respondent be required 	to post 	a
notice 	at 	its 	Santa Cruz 	campus 	incorporating the 	terms 	of 	this
order. 	The 	notice 	should be 	subscribed by an authorized agent 	of
Respondent 	indicating that 	it will 	comply with the 	terms 	thereof.
The notice 	shall 	not be reduced in 	size. 	Posting 	such a notice
will 	provide 	employees 	with notice 	that 	Respondent 	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
the 	posting will 	announce 	Respondent'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 Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District Court of Appeal approved a 	similar
posting requirement. 	See also NLRB v. 	Express 	Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].
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 Regents of the University
of California 	and 	its representatives 	shall:
36

A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	exercise 	of rights 	guaranteed
under 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	by 	the
University's 	employees 	in the 	non-senate 	instructional 	unit 	by
unilaterally 	changing 	the 	criteria 	for 	post-six-year 	appointments
contained 	in 	the 	collective 	bargaining 	agreement 	(hereinafter
Agreement) 	between 	the 	University 	and 	University Council-American
Federation of 	Teachers 	(hereinafter Association) 	during 	its 	term,
without 	the Association's 	consent.
2. 	Denying the Association rights 	guaranteed 	to 	it 	by
the 	Higher 	Education Employer-Employee 	Relations 	Act by
unilaterally 	changing 	the 	criteria 	for 	post-six-year 	appointments
contained in the Agreement, 	without the Association's 	consent.
3. 	Failing and refusing to meet and negotiate 	in good
faith with 	the 	Association 	by unilaterally 	changing 	the 	criteria
for 	post-six-year 	appointments 	contained 	in the Agreement,
without 	the Association's 	consent.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Effective 	at the 	commencement of 	the 	academic 	year
following the date this 	Order becomes 	final, 	offer all 	unit
lecturers 	at the University's 	Santa Cruz, 	California campus who
received post-six-year 	appointments 	at 	reduced percentage 	levels,
in violation of the Agreement, 	appointments 	for the remainder of
their 	three-year 	terms 	of 	at 	least 	their pre-existing levels 	of
employment, 	displacing, 	if necessary, 	any lecturers appointed for
37

less 	than a 	three-year 	term 	subsequent to the 	end of 	the 	1986-
:1987 	academic 	year to conduct their 	courses.
2. 	Make all unit lecturers at the 	Santa Cruz,
California 	campus 	who 	received reduced post-six-year, 	three-year
appointments 	in violation of 	the Agreement whole 	for any monetary
losses 	and 	losses 	in other benefits 	they 	suffered as 	the 	result
of 	the 	University's 	unilateral 	change 	in the 	provisions 	of
Article VII 	of the Agreement, 	together with interest at the rate
of 	10% 	per annum.
3. 	Within ten 	(10) 	workdays 	from 	service of the 	final
decision in this matter, 	post at all work locations 	at the 	Santa
Cruz, 	California campus where notices to employees 	customarily
are placed, 	copies 	of the Notice 	attached as 	an Appendix hereto,
signed by an 	authorized agent 	of 	Respondent. 	Such posting 	shall
be maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken to insure that this Notice 	is 	not
reduced in 	size, 	defaced, 	altered or covered by any material.
4. 	Upon issuance 	of a 	final 	Decision in this matter,
written 	notification of 	the 	actions 	taken to 	comply with 	this
Order 	shall 	be made 	to 	the 	San Francisco 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	in accordance with her
instructions.
C. 	It 	is 	further 	ordered that the 	charge 	and complaint 	in
Unfair Practice Case No. 	LA-CE-235-H are hereby DISMISSED.
Pursuant to California Administrative Code, 	title 	8, 	part
III, 	section 32305, 	this 	Proposed Decision and Order 	shall become
38

final 	unless 	a party files 	a 	statement of exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service 	of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	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, 	". 	. 	. o r when sent
by telegraph or 	certified or Express 	United States 	mail,
postmarked not 	later 	than 	the 	last 	day 	set 	for 	filing 	. . . " 	See
California Administrative Code, 	title 8, 	part III, 	section 32135.
Code 	of 	Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement
of 	exceptions 	and 	supporting brief must 	be 	served 	concurrently
with 	its 	filing upon each party to this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on a 	party 	or 	filed with
the 	Board itself. 	See California Administrative Code, 	title 	8,
part III, 	sections 32300, 	32305 and 32140.
Dated: 	February 24, 	1989
Douglas 	Gallop
Administrative 	Law 	Judge
39