Regents of the University of California (American Federation of State, County and Municipal Employees) (PERB 0891H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE,
COUNTY AND 	MUNICIPAL 	EMPLOYEES,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
) 	Case No . 	SF-CE-294-H
PERB Decision No. 	891-H
July 	3, 1991
)
)
)
Appearances: 	Ron Reeves, 	Representative, 	for the American
Federation of State, 	County and Municipal 	Employees; 	Joyce
Harlan, 	Representative, 	for the Regents of the University of
California.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
Regents 	of 	the University of California 	(University) 	to the
attached proposed decision of 	an administrative 	law 	judge 	(ALJ).
The ALJ 	found that the 	University violated 	subdivision 	(c) 	of
section 	3571, 	and derivatively 	subdivision 	(b) 	of the Higher
Education Employer-Employee Relations Act 	(HEERA or Act).1
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 do 	any of 	the 	following:
(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
)
)
)
)
_______________ )

Specifically, 	the ALJ 	found that 	the 	University 	failed 	to provide
requested 	information that was 	necessary 	and 	relevant 	for 	the
American Federation of 	State, 	County and Municipal 	Employees
(AFSCME) 	to 	fulfill 	its duties under the Act. 	The University
filed 	four 	exceptions 	to 	the proposed decision 	contending 	that
the ALJ 	failed to 	consider that: 	(1) 	the University did provide
information; 	(2) 	the 	information came 	forward 	slowly because of
the 	University's 	decentralized decision-making process; 	(3)
AFSCME did not 	request 	that 	implementation of 	the budget 	cuts 	be
delayed; 	and 	(4) 	AFSCME declined to meet with the University
concerning the 	impact of 	the 	cuts. 	AFSCME 	filed a brief 	response
to these exceptions.
We have 	carefully 	reviewed 	the 	entire 	record, 	including the
proposed decision, 	the transcript, 	the University's 	exceptions,
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(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.
(d) 	Dominate or 	interfere with the 	formation
or 	administration of 	any 	employee
organization, 	or contribute financial or
other 	support to 	it, 	or 	in any way encourage
employees 	to 	join any 	organization 	in
preference to another. 	However, 	subject to
rules 	and 	regulations 	adopted by 	the 	board
pursuant to Section 3563, 	an employer shall
not 	be 	prohibited 	from permitting 	employees
to 	engage 	in meeting 	and 	conferring 	or
consulting 	during working 	hours 	without 	loss
of pay or benefits.
N	2

and AFSCME's response thereto, 	and, 	finding the ALJ's 	findings 	of
findings of fact and conclusions of law to be substantially free of error,
adopt the ALJ's proposed decision as 	the decision of 	the 	Board
itself. 	We write separately, 	however, 	to address one minor
factual 	error made 	by 	the ALJ 	and 	to 	briefly address 	the
University's 	exceptions. 	We also write 	separately 	to 	address 	the
alleged 	(a) 	violation which the ALJ did not discuss.
DISCUSSION
Factual 	Error
The ALJ 	states 	at page 	12 	in his 	Findings 	of 	Fact and at
page 	19 	in his Conclusions 	of 	Law that 	the University's
representative,.
Debra Harrington 	(Harrington), 	informed AFSCME's,
representative, 	Michael Votichenko 	(Votichenko), 	of impending
layoffs 	in the 	Recreational 	Sports 	Department by 	telephone 	on
April 4, 	1989.2
The 	University 	excepted 	to 	this 	finding 	contending 	there 	is
no 	evidence 	that 	Harrington and Votichenko 	actually 	spoke 	to 	each
other on April 	4. 	We agree 	that 	the 	administrative 	record does
not 	support 	a 	finding that 	the parties 	spoke to 	each 	other 	on
this date. 	Rather, 	it appears 	from the exhibits 	entered into the
record that 	Harrington merely 	left 	a 	message 	at Votichenko's
office on April 	4. 	The record does 	establish, 	however, 	that
Harrington 	followed 	that 	message with 	a 	letter dated April 	5,
then 	spoke with Votichenko by telephone 	on April 	7. 	Further,
both the April 	5 	letter and April 	7 	conversation appear to 	cover
- 22Unless otherwise identified, 	all dates 	refer to 	1989.
W3

the 	same 	subject matter 	that 	the ALJ 	incorrectly 	identified 	as
discussed on April 	4 	(i.e., 	layoff of the 	storekeeper in the
Recreational Sports Department). 	Thus, 	although the ALJ
identifies April 	4 as the date of their discussion, 	the
conversation did not, 	in fact, 	occur until April 	7.
Notwithstanding this mistake, 	the ALJ's 	reference to April 	4
constitutes 	harmless 	error 	since his 	findings 	concerning 	the
subject 	matter of 	their 	conversation were 	not 	dependent 	upon 	the
precise date of 	the 	conversation.
Exceptions
In addition to the above, 	the University also 	states 	four
general 	exceptions 	to the ALJ's 	proposed decision.3
Specifically, 	the University contends:
A. 	[The ALJ 	failed] 	to Find that the
University 	Provided 	Charging 	Party with 	the
Information Necessary to Meet 	Its 	Legal
Obligations 	and to 	Find 	that 	the 	Collective
Bargaining Agreement 	Governed 	the 	Parameters
and Procedures 	by Which Personnel Actions 	Are
to Occur.
B. 	[The ALJ 	failed] 	to Consider the Fact
that 	Due 	to the 	Decentralization of 	the
Decisions 	Regarding 	the 	Budget 	Cut-Backs
[sic] 	and the Freeze 	Information Came Forward
Slowly and Was 	Not Available as 	Late as 	June,
1989.
C. 	[The ALJ 	failed] 	to Consider the Fact
that Charging 	Party 	Declined 	to 	Meet with 	the
University Regarding the 	Impact 	of 	the 	Cuts.
3Since, 	as 	discussed below, 	we do 	not 	find the 	University's
exceptions meritorious, 	it is unnecessary to restate 	in detail
the 	alleged 	errors 	or each of 	the 	University's 	arguments 	made 	in
support of 	its 	exceptions.
44

D. 	[The ALJ did not] 	Consider the Fact that
AFSCME 	Never Requested 	that 	the 	University-
Delay 	Implementation of 	the Cuts 	Until AFSCME
Had All 	Information 	It 	Deemed Necessary.
In reviewing these exceptions, 	it is 	important to note the
University does 	not 	contend that AFSCME had no 	right 	to 	the
information, 	i.e., 	that 	it was 	not relevant to AFSCME's duties 	as
an exclusive 	representative. 	The 	University also does 	not
dispute that Harrington possessed two memos, 	one dated
February 	2, 	and the other dated February 	23, 	and that 	each
contained 	information that would 	have 	addressed 	some 	of 	AFSCME's
inquiries. 	Further, 	there appears to be no dispute that AFSCME's
requests were 	clear and unambiguous with 	respect 	to 	its 	interest
in obtaining 	information or the 	subjects 	of 	the 	information
sought. 	Also not disputed 	in the 	exceptions 	is 	the ALJ's 	finding
that 	the 	University was placed on notice 	as 	to AFSCME's 	interest
in obtaining 	information as 	a result of 	a February 	9 	telephone
conversation between Votichenko 	and 	Harrington, 	and Votichenko's
letter to Harrington dated February 	14. 	Finally, 	the University
does 	not dispute that Libby Sayre 	(Sayre), 	a local representative
for AFSCME, 	acted at Votichenko's 	request by sending Harrington a
letter on February 	27 	requesting 	further 	information, 	or that
Sayre's 	letter merely particularized Votichenko's 	request.
Instead, 	the 	University primarily contends 	that 	information was
provided 	as 	it became 	available 	and 	that 	the ALJ 	failed 	to
consider those 	facts 	in arriving at his 	decision.4
4PERB Regulation 	32300(a) 	provides 	that a 	statement of
exceptions 	shall 	specify the 	issues, 	pages 	and grounds with which
55

The University's exceptions, 	however, 	are without merit for
the 	following reasons.
First, 	the 	exceptions 	merely restate arguments 	made before
the ALJ 	at the 	formal hearing. 	Thus, 	while the Board applies 	a
de 	novo 	standard of 	review and 	is 	free 	to draw its 	own
conclusions 	from the 	record 	(Santa 	Clara 	Unified 	School 	District
(1979) 	PERB Decision No. 	104), 	we find no justification in this
case 	to deviate 	from the ALJ's 	analysis 	since his 	findings 	of
fact 	and 	conclusions 	of 	law are 	amply 	supported by 	the 	record.
We 	also do 	not 	find persuasive 	the 	University's 	contentions
that 	it 	provided 	the 	requested 	information or 	that 	the ALJ 	failed
to 	consider 	certain 	evidence 	favorable 	to 	the 	University 	in
arriving at his 	decision.
The 	record 	establishes 	that 	Harrington 	failed 	to 	disclose
the 	February 	2 	and February 	23 	memos which the ALJ determined
contained the 	requested 	information, 	or otherwise provide 	the
information contained 	in the memos. 	The 	University 	attempts 	to
justify 	its 	conduct 	by 	arguing 	that 	Harrington discussed 	the
information 	covered 	in those 	memos 	with Votichenko 	during 	their
telephone 	conversation on February 	9 	and 	followed 	their
conversation with 	a 	letter dated March 	6.
each 	exception is 	taken to 	the ALJ's 	proposed decision.
Subdivision 	(c) 	of 	Regulation 	32300 	further provides 	that any
exception not 	specifically argued 	is waived. 	PERB 	Regulations
are codified at California Code of Regulations, 	title 	8, 	section
31001 	et 	seq.
66

This argument fails, 	however, 	because providing information
Son Februar	. : 	y 	9 	in a telephone conversation does 	not 	satisfy the
'University's 	obligation to provide 	relevant 	information 	requested
both during 	and 	subsequent 	to 	that 	conversation.5 This 	is
particularly true where 	the accuracy of 	that 	information 	is 	later
placed 	into question by the 	February 	17 	publication of 	an article
in The 	Daily 	Californian which 	quoted 	extensively 	from 	the
University's February 2 memo and, 	arguably, 	contradicted
information provided by Harrington to Votichenko. 	Furthermore,
irrespective of 	the 	article's 	accuracy,6 the 	fact 	it 	quotes 	from
a 	University memo 	clearly portrayed 	the 	University 	as 	having
significant 	information of 	concern to AFSCME.
Thus, 	while AFSCME might not have been entitled to 	specific
copies 	of 	internal University memorandum, 	it was 	certainly
5sHarrington, 	in characterizing her discussions with
Votichenko, 	testified she discussed the 	"basic 	elements" 	of 	the
February 	2 	and 	23 	memos 	but admitted under 	examination by 	the ALJ
that 	she did not provide Votichenko with all 	of 	the 	information
contained therein. 	In reference to providing a 	list of
departments 	funded by the 	registration and 	education 	fees,
Harrington 	testified 	that 	the 	University 	knew which 	departments
were 	funded 	by the 	registration and 	education 	fees 	and 	that 	such
information could have been provided 	at 	the 	time 	she 	received
Sayre's 	February 27 	letter.
6 The University 	states 	in one 	of 	its 	exceptions 	that 	the ALJ
failed
' to 	consider 	that 	Harrington believed 	the 	information
contained 	in The 	Daily Californian article was 	inaccurate.
Harrington's 	state of mind, 	however, 	is 	irrelevant. 	Furthermore,
a 	close 	examination of her testimony reveals 	that 	Harrington
never testified 	she 	informed Votichenko 	that 	the 	article
contained 	inaccurate 	information. 	The 	University's 	reliance 	on
the 	alleged 	inaccuracies 	contained 	in the memo 	is 	therefore
rejected. 	Moreover, 	even if 	the article misstated the 	contents
of the memo, 	AFSCME, 	under the circumstances in this case, 	would
be 	entitled 	to verify the 	accuracy 	of 	the 	information Harrington
allegedly provided 	in the 	telephone 	conversation.
77

entitled to 	some definitive 	source 	of 	information other than a
mere telephone discussion of 	the 	"basic 	elements" 	of 	the memos.
We 	find that 	Sayre's 	February 	27 	letter, 	which the ALJ determined
merely 	stated 	more 	specifically Votichenko's 	general 	inquiry,
constitutes 	a 	request 	for more definitive 	information. 	We
further 	find that 	the 	University did 	not 	respond 	to 	this 	inquiry
but 	merely 	advised Votichenko 	to 	relay 	the 	contents 	of 	their
February 	9 	telephone conversation to 	Sayre.
Also without merit 	is 	the 	University's 	argument 	that 	the ALJ
failed 	to 	consider 	the 	decentralized 	decision-making 	process
utilized by 	the 	University. 	Although 	no 	specific 	finding was
made on this 	issue, 	after reviewing the evidence and the
arguments presented 	in the post-hearing briefs 	and exceptions, 	it
is 	apparent 	the ALJ discounted the 	significance 	of 	that process.
We agree with his 	approach. 	Further, 	the Board has 	held that any
unreasonable 	delay 	in providing 	information may 	constitute 	a
violation of 	the Act. 	(Azusa 	Unified 	School 	District 	(1983)
PERB Decision No. 	374, 	pp. 	8-9.) 	Accordingly, 	the fact that
various 	departments were 	in the process 	of 	developing 	individual
plans 	for meeting their budgeting 	goals 	does 	not 	justify 	the
University's 	failure 	to provide 	relevant 	and 	readily available
information contained 	in the 	February memos.
The 	University 	further 	contends 	AFSCME's 	right 	to 	the
information only arises 	once 	the decisions 	have been made. 	We
note, 	however, 	the University provides no 	legal authority for its
hypothesis. 	Moreover, 	its theory contravenes a 	fairly clear 	line
8

of decisions, 	which the Board has generally followed, 	by the
National 	Labor Relations 	Board 	(NLRB	. . 	) 	and 	federal 	courts
concerning 	the 	duty 	to provide 	information.7 (See 	generally,
Morris, 	The Developing Labor Law 	(2d ed. 	1983) 	pp. 	617-621; 	Id.
(1982-1988 	supp.) 	pp. 	323-234.) 	The University's argument is
therefore 	rejected.
In its 	third exception, 	the University contends 	the ALJ
erred by 	failing 	to 	consider 	that AFSCME 	failed to 	meet with 	the
University concerning the 	impact of 	the cuts. 	The 	exception is
without merit. 	Requests 	for 	information are not 	contingent 	upon
scheduling a 	meeting with 	the 	employer.
The' University's final exception, 	contending that AFSCME
failed to request 	that 	the 	cuts 	be delayed until 	it had all
necessary information, 	also is 	rejected. 	The obligation to
provide 	information 	in response to 	a 	request 	is 	simply not
conditioned upon 	another 	request 	that 	the 	employer 	delay 	taking
some action.
For the reasons 	expressed above, 	each of 	the 	University's
exceptions 	and arguments 	are 	rejected.
7A1though the Board is not bound to follow NLRB decisions, '
it will 	take 	cognizance 	of 	them where 	appropriate 	as 	an aid 	in
interpreting 	analogous 	requirements 	under 	state 	labor
legislation. 	(Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89; 	Los Angeles Untied School District 	(1976) 	EERB
Decision No. 	5 	(prior to January 	1, 	1978, 	PERB was known as the
Educational Employment Relations Board); 	Regents of the
University 	of 	California 	(Statewide 	University 	Police
Association) 	(1983) 	PERB Decision No. 	356-H; 	Fire Fighters Union
Local 	1186 v. 	City 	of Vallejo (1974) 	12 Cal.3d 608 	[116 Cal.Rptr.
507].)
99

Violation of 	HEERA 	section 	3571 fa)
The complaint, 	as amended, 	alleged that the University
violated subdivisions 	(a),* (b) 	and 	(c) 	of section 3571 of the
Act. 	At the conclusion of 	the 	formal hearing, 	the ALJ determined
that the University violated subdivisions 	(c) 	and 	(b);8 he did
not, 	however, 	address the 	(a) 	violation in the proposed decision.
Inasmuch as we have 	found that 	the 	University's 	conduct
violated subdivisions 	(b) 	and 	(c) 	of HEERA section 3571, 	we
further 	find that this 	conduct also violated 	section 	3571(a).
Under HEERA 	section 	3565, 	higher 	education employees 	have 	the
right to participate 	in the 	activities 	of 	the 	employee
'organization of their 	choosing 	for the purpose 	of 	representation
on all 	matters 	of 	employer-employee 	relations 	and 	for 	the purpose
of 	meeting and 	conferring with 	the 	employer about matters 	within
the 	scope of bargaining. 	The 	University, 	by failing to provide
requested 	information in a 	timely 	fashion to AFSCME, 	effectively
interfered with the 	rights 	of 	employees 	under HEERA 	section 	3565-
to have,their 	exclusive 	representative 	bargain on 	their behalf.
This 	interference 	constitutes 	a 	violation of 	HEERA 	section
3571(a).
8Although 	the ALJ did not 	articulate his 	analysis 	in 	finding
that the 	(b) 	violation was derived from the 	(c) 	violation, 	we
nevertheless 	agree 	the 	University's 	actions 	justify 	that 	finding.
Under HEERA 	section 	3570 	the 	exclusive 	representative 	has 	the
right 	to bargain on behalf 	of 	its 	exclusively 	represented
members. 	By refusing to provide 	information, 	the University
effectively denied AFSCME 	its 	right 	to bargain on behalf 	of 	its
members 	for whom 	it 	is designated the 	exclusive 	representative.
This 	conduct violates HEERA section 3571(b).
10

ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the 	entire record 	in this 	case, 	it 	is 	found that the
Regents 	of 	the 	University of 	California 	violated 	the 	Higher
Education Employer-Employee Relations Act 	section 3571(a), 	(b)
and 	(c). 	Pursuant to section 3563(h), 	it is hereby ORDERED that
the Regents 	of the University of California, 	its president,
chancellor(s) 	and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to provide, 	upon demand, 	to AFSCME, 	as an
exclusive representative of 	University 	employees, 	all 	information
that as 	necessary 	and relevant 	for AFSCME 	to discharge 	its 	duty
of 	representation.
2. 	Denying to AFSCME 	rights 	guaranteed 	to 	it by 	the
Higher 	Education Employer-Employee 	Relations 	Act.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
the Decision is 	no 	longer 	subject to reconsideration, 	post at all
work 	locations where 	notices 	to 	employees 	are 	customarily placed
at the University of California, 	Berkeley campus, 	copies 	of 	the
Notice attached as 	an Appendix hereto, 	signed by an authorized
agent of 	the 	employer. 	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 other material.
11

2. 	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 Carlyle 	joined 	in this 	Decision.
12

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-294-H,
American Federation of 	State, 	County and Municipal 	Employees 	v.
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, 	Government Code section 3571(a),
(b) and (c).
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to provide, 	upon demand, 	to AFSCME, 	as an
exclusive representative of 	University employees, 	all 	information
that 	is 	necessary and relevant 	for AFSCME to discharge 	its 	duty
of 	representation.
2. 	Denying to AFSCME rights 	guaranteed to 	it by the
Higher 	Education Employer-Employee 	Relations Act.
Dated: 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA
By.
Authorized 	Agent
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.
~- ·' .. ' ' 	,

STATE 	OP 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE,
COUNTY AND MUNICIPAL 	EMPLOYEES,
Charging 	Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
___________
)
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-294-H
PROPOSED DECISION
(11/15/90)
)
)
)
)
)
)
)
Appearances: 	Ron Reeves 	for the American Federation of 	State,
County and Municipal 	Employees; 	Joyce Harlan for the Regents 	of
the 	University 	of 	California.
. . . 	Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On June 	15, 	1989, 	the American Federation of State, 	County
and 	Municipal 	Employees 	(hereafter AFSCME 	or Charging 	Party)
filed 	an unfair practice 	charge with 	the 	Public 	Employment
Relations 	Board 	(hereafter PERB 	or 	Board) 	against 	the Regents 	of
the 	University 	of 	California 	(hereafter 	Respondent 	or 	University)
alleging a violation of 	subdivisions 	(b) 	and 	(d) 	of 	section 3571
of 	the 	Higher 	Education Employer-Employee 	Relations 	Act
(hereafter 	HEERA).1
1 The 	Higher 	Education 	Employer-Employee 	R e l a t i o n s 	Act 	is
c o d i f i e d 	at 	Government 	Code 	§3560 	et 	seq. 	A l l 	s e c t i o n
r e f e r e n c e s , 	u n l e s s 	o t h e r w i s e 	n o t e d , 	a r e 	t o 	t h e 	Government 	Code.
Section 3571 states:
3 571. 	UNLAWFUL EMPLOYER PRACTICES
I t 	s h a l l 	b e 	unlawful 	f o r 	t h e 	h i g h e r 	e d u c a t i o n 	employer 	t o 	d o
any 	of 	t h e 	f o l l o w i n g :
(a) 	Impose 	or 	t h r e a t e n 	to 	impose 	r e p r i s a l s 	on
employees, to discriminate or threaten to discriminate
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.
_ )

On January 	16, 	1990, 	the General Counsel of PERB, 	after an
investigation of 	the charge, 	issued both a Partial 	Dismissal 	and
a 	Complaint. 	The Complaint 	alleged a 	violation of 	subdivisions
(a) 	and 	(b) 	of 	section 3571. 	The Partial Dismissal disposed of
the alleged violation of 	section 3571(d). 	On February 8, 	1990,
the 	Respondent 	filed 	its Answer to 	the Complaint.
On February 27, 	1990, 	an informal 	conference was held to
explore voluntary 	settlement possibilities. 	No 	settlement was
reached.
The 	formal hearing was held on May 29, 	1990. 	The parties
briefed 	their respective positions. 	The 	case was 	submitted 	for
decision on September 4, 	1990.
against employees, 	or otherwise to 	interfere with,
restrain, 	or coerce 	employees 	because of their exercise
of 	rights 	guaranteed by this 	chapter.
For purposes of this 	subdivision, 	"employee" 	includes
an applicant 	for 	employment 	or reemployment.
(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.
(d) 	Dominate 	or interfere with the 	formation or
administration of any employee organization, 	or
contribute 	financial 	or other 	support to 	it, 	or 	in any
way 	encourage 	employees 	to 	join any 	organization 	in
preference to another. 	However, 	subject to rules 	and
regulations 	adopted by 	the 	board pursuant 	to
Section 	3563, 	an employer 	shall 	not be prohibited 	from
permitting 	employees 	to 	engage 	in meeting 	and
conferring 	or 	consulting 	during working hours 	without
loss 	of pay or benefits.
N2

INTRODUCTION
In February 	1989, 	the 	University announced 	its 	decision to
institute budgetary reductions, 	including a 	freeze 	in hiring and
promotions 	in units 	funded by 	student registration 	fees. 	In
February AFSCME, 	in its 	role as 	representative 	for various
University 	employees, 	requested 	information 	from the 	University
concerning the effect(s) 	of 	this 	freeze on University employees.
In mid-June, 	when it believed 	it had not received the requested
information, 	it filed this charge.
AMENDMENT 	OF 	COMPLAINT
Pursuant to a motion of 	the Charging Party, 	and without
objection by the Respondent, 	paragraph 	3 	of the Complaint was
amended 	to delete 	the 	reference 	to 	the 	Charging 	Party 	seeking
such 	information 	solely 	for 	non-exclusively 	represented
University 	employees. 	This 	amendment added to the disputed
issues 	the 	matter of whether 	the 	University 	improperly 	failed 	to
provide 	requested 	information to AFSCME 	in 	its 	role 	as 	an
exclusive representative of University employees. 	Paragraph 	5 	of
the Complaint, 	which 	sets 	forth the 	specific 	subdivisions 	of
section 	3571 	that were alleged to have been violated, 	was 	not
amended 	to 	include 	a 	specific 	reference 	to 	a 	section 	3571
subdivision 	(c) 	violation.2N However, 	once the motion to 	include
2 Section 3571 	subdivision 	(c) 	states
It 	shall be unlawful 	for the higher 	education
employer to do 	any of 	the 	following:
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
w	3

the represented employees was 	granted 	(without objection), 	the
Respondent was 	on notice 	that 	its 	actions 	vis-a-vis 	its
represented 	employees was 	at 	issue 	in the hearing.
JURISDICTION
The parties 	stipulated, 	and it is 	therefore 	found, 	that the
Charging 	Party 	is 	an employee 	organization and 	the 	Respondent 	is
a 	higher 	education 	employer within the 	meaning of 	section 	3562.
FINDINGS 	OF 	FACT
In early February 	1989, 	the Berkeley campus 	of 	the
University 	of 	California 	learned 	that 	it would be 	receiving 	only
a 	portion of 	the 	recently 	increased 	student 	educational 	and
registration fees 	(hereafter ed/reg 	fees) 	revenue. 	Ed/reg 	fees
are 	fees 	paid directly by 	the 	students 	and 	are 	used 	to 	support
student 	services 	on the 	campus. 	The 	campus management 	shortly
thereafter 	learned 	that 	it would be 	necessary 	to 	implement 	1990-
91 	budget cuts 	in those units 	that were dependent on ed/reg 	fees.
It was 	told that there would be 	a hiring 	freeze, 	but that
specifics 	with 	regard to 	the 	budget 	shortfall would be 	determined
by the 	individual units. 	Each unit was 	to be given a targeted
budget 	level 	and 	it would be 	responsible 	for meeting this 	figure.
Berkeley Vice 	Chancellor 	Roderic 	B. 	Park notified 	the 	campus
management of the 	freeze by means 	of a February 2, 	1989, 	memo
which described, 	in general terms, 	the effect the budgetary
cutbacks 	and 	the 	freeze would have 	on units 	that 	depended 	on
ed/reg 	fees. 	The memo 	set 	forth 	specific 	rules 	regarding the
cutbacks 	and 	freeze, 	and the manner in which exceptions 	to these
44

could be 	effected. 	These 	rules were 	set 	forth with 	regard to 	(1)
:Personnel Actions, 	(2) 	Supplies and Expenses and 	(3) 	Equipment
and Facilities. 	The 	first time AFSCME 	saw this 	memo was
approximately two 	to 	three weeks 	before 	the 	formal 	hearing 	in
this 	case.
On February 	7, 	1989, 	Berkeley's Acting Provost 	for
Undergraduate Affairs, 	William M. 	Banks, 	sent a letter to the
units 	under his 	control 	explaining 	the 	freeze 	and 	anticipated
budgetary cutbacks. 	One of 	the addressees 	of 	this 	letter,
Michele Woods 	Jones, 	testified that 	she was 	given an actual
percentage 	reduction 	figure by her 	supervisor. 	She worked with
her 	staff 	to 	reach 	this 	figure. 	She believed that 	the 	Personnel
Department's 	role was 	to 	assist her 	in 	implementing 	the
applicable 	university rules 	and 	regulations 	with 	regard 	to 	any
impact 	the budgetary 	cuts 	had on personnel.
Debra Harrington, 	Berkeley's 	Manager of Labor and Employee
Relations, 	informed management 	that 	she would have 	to 	notify both
the 	exclusive 	representatives 	and 	the 	non-represented 	employees
of 	any 	impact the budget 	cuts would have on employees' 	terms 	and
conditions 	of 	employment. 	She 	asked that 	she be 	notified as 	soon
as 	any 	such plans 	were developed 	so 	she 	could discuss 	with the
appropriate management personnel 	the action(s) 	that must be 	taken
to 	comply with 	the 	labor relations 	requirements.
Ms. 	Harrington contacted the designated employee
representatives 	on or about February 	9, 	1989, 	to notify them of
the 	anticipated 	budget 	cuts 	and hiring 	and promotional 	freeze.
5
5

She 	contacted 	them by phone 	as 	the 	budget 	situation was 	to be
made public 	shortly thereafter. 	As 	a part of 	this 	notification
process 	she 	called Michael Votichenko, 	a representative and
employee of AFSCME, 	Council 	10, 	and the person designated by
AFSCME 	International, 	an exclusive representative, 	and the
Charging Party 	in this 	case, 	as 	the person to whom all 	notices
should be 	sent.3
She told him that 	(1) 	there was 	a hiring and promotional
freeze, 	(2) 	the 	specific budgetary cuts had not been finalized,
(3) 	supplies 	and 	equipment would be 	the 	first area 	affected by
the cutbacks, 	and 	(4) 	she did not know whether the cuts would
impact 	the people 	represented by AFSCME. 	She also 	told him 	that
exceptions 	could be 	made. 	Votichenko 	asked her 	for additional
details. 	She 	said 	she would get back to 	him when more
information was 	available. 	In the notes 	she made 	from that
telephone 	conversation 	she 	added the 	following: 	"units
responsible 	for 	coming up with plans 	- would then contact 	our
office 	and we Would work through 	as 	appropriate with AFSCME."
On February 	14, 	1989, 	Votichenko wrote a letter to
Harrington. 	The entire text of the 	letter is 	as 	follows:
The 	Union would 	like 	to meet with the
University to 	discuss plans 	for 	freezing
vacant positions 	and the possibility 	of
layoffs 	in the 	Registration and 	Education
funded units. 	When you have provided the
Union with 	specific 	information about 	the
3 AFSCME has 	three 	locals 	on the Berkeley campus, 	all within
Council 	10. 	These locals represent 	(1) 	service employees, 	(2)
clerical 	employees 	and 	(3) 	the non-exclusively represented
employees.
66

impac------------t of 	the 	cuts 	on the employee- 	- s
represented by 	the 	three 	locals 	on the
Berkeley campus, 	we will 	contact you to
finalize Plans 	for a meeting.
(Emphasis 	added.)
Three days later, 	on February 	17, 	1989, 	the campus
newspaper, 	The Daily Californian, 	ran an article on the
anticipated 	cuts. 	That 	article quoted 	extensively 	from the
February 	2 	memo 	from Vice Chancellor Park. 	The newspaper 	article
also 	stated 	that 	"the 	university would be 	able 	to 	complete
hirings 	that had already been 	initiated. 	The 	campus would also
be 	able 	to 	fill 	vacancies 	due to dismissal 	and to releases 	during
probationary periods" 	and 	"the 	hiring 	freeze would 	not 	be 	allowed
to 	interfere with 	any hiring 	essential 	to 	the 	health 	and 	safety
of 	campus populations, 	the operation of 	campus programs 	and the
fulfillment 	of 	legally mandated 	contracts." 	The 	newspaper also
quoted 	Park 	as 	stating 	"the 	campus 	would 	also 	refuse 	to 	reimburse
employees 	for all 	entertainment 	and most 	travel." 	Votichenko was
particularly 	interested 	in one 	statement 	in the 	article:
Effective 	immediately, 	the hiring of all 	new
employees, 	promotion or transfer of existing
employees regardless of fund source 	. 	. 	.
will not be acted upon . 	. 	.
On February 23, 	198 9, 	Vice Chancellor Park sent a 	five page
memo to 	all 	Managers 	of 	Student Fee Funded Units. 	He began his
memo with 	the 	following paragraph
The purpose of 	this 	memorandum is 	to relate
proposed reductions 	in the budgets 	of 	units
and programs 	supported 	from 	registration 	fees
and 	educational 	fees 	to the 	financial
problems 	confronting the 	State, 	the
University 	and 	the 	campus 	during 	the 	coming
year 	and 	to provide 	additional 	information on
77

the general procedures 	that will 	be 	followed
in implementing the cut. 	(Emphasis added)
He went 	on to 	explain the reasons 	a budget 	cut was
necessary. 	He described the 	traditional 	uses 	of 	reg/ed 	fees 	and
set 	forth 	the 	1988-89 Actual 	and 	the 	1989-90 	Projected 	Budgets
with the 	accompanying changes. 	The memo 	also 	set 	forth 	guidance
on priorities 	to 	follow when making budgetary 	cuts 	and 	described
the proper procedures 	to 	be 	followed when requesting 	a waiver of
the 	freeze. 	The 	first time AFSCME 	saw this 	memo was 	at the
formal 	hearing 	in this 	case. 	Near the 	end of February,
Votichenko discussed the 	situation with Libby 	Sayre, 	the
president of AFSCME!s Berkeley campus 	Local 	3212. 	He asked her
to 	send 	a 	letter to 	Harrington 	setting 	forth 	the 	specific
information AFSCME was 	seeking 	regarding 	the 	freeze 	and 	budgetary
cuts.
On February 27, 	1989, 	Sayre, 	using the information contained
in The 	Daily Californian as 	a guide, 	sent the 	following 	letter to
Harrington:
We 	have 	received word that 	the 	Berkeley
campus 	intends 	to 	freeze hiring 	in 	some
cases, 	and that there may be layoffs 	in
departments 	and units which 	are 	funded by
registration and 	educational 	fees. 	Michael
Votichenko 	tells 	me 	that 	you 	telephoned him
with 	some 	sketchy 	information; 	the February
17 	Daily Cal provides 	other 	(incomplete and
unclear) 	information. 	I 	am writing to ask
for clarification of this 	situation. 	Please
provide 	a written response 	to 	the 	following
questions, 	as 	they pertain to non-supervisory
service, 	clerical, 	and non-exclusively
represented employees, 	within the next
fifteen days:
88

1. 	Have any employees been affected by
this 	hiring 	freeze?
2. 	Is 	there any possibility that any
employees 	will 	be 	or have 	already
been 	laid off 	as 	a 	result 	of 	the
freeze?
3. 	Have reclassification requests, 	or
reclassification procedures, 	been
"frozen" 	or affected 	in any way?
4. 	What is, 	or was, 	the effective date
of 	any 	freeze 	on hiring and/or
posting of 	vacancies? 	Will 	the
freeze 	extend 	into 	the 	next 	fiscal
year? 	Will 	it 	affect 	currently-
listed 	positions?
5. 	What Departments 	and/or units 	are
funded by 	reg 	and 	educational 	fees
at 	Berkeley? 	Has 	the 	freeze
affected only 	these 	units 	or have
all transfers, 	promotions been
frozen 	(as 	suggested 	in the 	Daily
Cal)?
6. 	Will 	any positions 	now held by
employees 	be 	eliminated 	or 	left
temporarily 	unfilled? 	How will
this 	affect preferential 	rehire
rights 	of 	employees 	on 	layoff?
Have 	any 	employees 	on 	layoff 	status
been affected as 	of 	this date?
7. 	By what method have you notified
non-exclusively 	represented
employees 	of 	the 	freeze? 	How may
they 	obtain 	additional 	information?
How may 	they meet with UC
management 	to discuss 	the
situation?
We 	need 	this 	information 	to 	represent 	our
constituents, 	particularly with regard to
layoff 	and reclassification. 	Mike Votichenko
has 	asked me to 	contact 	you directly 	for
information 	in my 	capacity 	as 	Campus
Representative.
I 	am disappointed that you have 	not 	felt 	it
necessary 	to provide 	any written notification
9
9

or 	information 	to 	the 	union 	concerning
something 	so basic 	as 	a hiring 	freeze,
especially 	in 	light 	of 	the 	fact 	that you have
supplied 	information to 	the 	Daily Cal. 	And
you 	have 	apparently 	supplied 	no 	information
at 	all 	to 	all 	non-exclusively 	represented
employees. 	Is 	it necessary to remind you
that 	it 	is 	not 	sufficient to notify AFSCME of
changes 	in terms 	and 	conditions 	of 	employment
when these 	changes 	affect 	non-exclusively
represented employees? 	You have 	a 	legal
obligation under 	HEERA 	to 	notify 	affected
employees. 	If you need 	information about
- - .	this distinction, 	please contact the Office
of the General Counsel; 	they have handled
Unfair 	Labor Practice 	Charges 	in 	connection
with this 	basic 	principle 	of 	notification of
non-exclusively 	represented 	employees.
If 	you 	contend that we 	are 	not 	entitled to
the 	information we 	have 	requested 	in this
letter, 	or if you do not 	intend to provide
the 	information for any reason, 	please notify
me 	in writing within the next ten days. 	If
you do 	intend 	to 	supply 	the 	information
requested, 	but not within fifteen days,
please 	let me know this within ten days.
On March 	3, 	1989, 	Harrington contacted all of the
appropriate 	management personnel 	telling 	them that AFSCME 	"has
expressed a 	strong 	interest 	in the 	effects 	of 	any plans 	to
resolve 	the 	Education and 	Registration Fee 	reductions 	upon 	staff
employees 	. . . " 	She 	asked 	these 	managers 	to 	remind 	their 	units
of 	the 	need to 	contact 	the 	Personnel 	Office 	as 	soon as 	proposed
plans 	were developed.
On March 	6, 	1989, 	Harrington sent the following letter to
Votichenko:
Please be 	advised that 	I 	received the
attached letter from Libby Sayre. 	First, 	I
think 	it would be helpful 	if you would relay
to Ms. 	Sayre the 	information which I provided
to you over the 	telephone before 	the 	article
in the Daily Californian. 	Second, 	you have
been 	identified as 	the 	contact person 	for
10

these matters. 	If AFSCME would like to
redelegate this 	issue to Ms. 	Sayre for
handling, 	I would appreciate written
confirmation of this redelegation. 	I
understand Nadra 	Floyd 	is 	the 	individual who
is 	empowered to make 	such redelegation.
Finally, 	an update on the 	status of the
situation. 	As 	I 	advised you on the
telephone, 	departments 	are being charged with
the 	responsibility 	to 	come 	up with proposed
plans 	for handling the budget cuts. 	Also, 	as
I 	advised you on the telephone, 	when the
proposed plans 	are developed, 	the Personnel
Office will 	review them and 	contact 	your
office 	as 	appropriate 	regarding 	issues
affecting 	employees. 	Please be 	advised that
the plans have yet to come forward. 	Also, 	it
is 	my understanding that 	no 	layoff,
classification 	freeze 	actions 	have occurred
as 	a result of the freeze.
I 	do 	expect to be 	receiving 	information
shortly. 	Therefore, 	I would appreciate an
early response 	from Ms. 	Floyd with respect to
redelegation of the matter to Ms. 	Sayre 	so
that 	the 	information 	can be 	appropriately
directed.
Harrington never received 	a 	response 	from Votichenko, 	Sayre
or 	Floyd 	regarding 	a 	change 	in the 	designated AFSCME
representative. 	She 	continued to 	contact Votichenko 	exclusively.
The Berkeleyan, 	a 	campus 	newspaper 	for 	faculty and 	staff 	of
the 	University of California 	at Berkeley, 	in its 	March 	8 - 2 1 ,
1989 	issue, 	discussed the budgetary cutback in an article
entitled 	"Programs 	Funded by 	Student 	Fees 	are 	Facing 	Budget
Cuts." 	That 	article 	quoted 	extensively 	from Vice-Chancellor
Park's 	February 23 	memo. 	The newspaper 	stated the 	"only
exceptions 	to 	the 	hiring 	freeze 	are positions 	needed 	for health
and 	safety, 	performance of 	essential 	services, 	or fulfillment of
contractual 	and legal 	obligations. 	Also 	exempt 	from the 	spending
11

freeze 	are 	office 	supplies 	and 	informational 	materials 	that 	are
essential to a program's 	continued operation." 	It 	ended the
article with 	the 	following paragraph
The 	Student 	Fee 	Committee 	and 	topranking
officials 	overseeing 	the 	affected units 	will
recommend 	targets 	for budget 	cuts. 	Park will
make the 	final decision.
The 	deadline 	for determining how to 	cut
budgets 	is July 1.
On April 	4, 	1989, 	Harrington and Votichenko talked on the
telephone. 	She 	told him of 	impending 	layoffs 	in the Recreational
Sports 	Department. 	He asked 	for more 	general 	information about
the manner 	in which 	the 	budgetary 	cuts 	and 	freeze would be
implemented. 	She 	said 	she had no 	new information but would 	get
to him as 	soon as 	it was 	available.
Recreational 	Sports 	Department 	Personnel Actions
On April 	5 	Harrington wrote a 	letter to Votichenko 	notifying
AFSCME 	that 	a 	Storekeeper 	in the 	locker 	room 	facility 	in the
Recreational 	Sports 	Department would be 	laid off 	effective 	May
31, 	1989. . 	She invited AFSCME to submit written comments
concerning the 	impact of 	the 	layoff 	or to 	call 	regarding the
scheduling of 	a meeting on the matter. 	This was 	one of 	a 	series
of 	layoffs 	in this 	Department. 	On April 	13 AFSCME 	agreed to 	the
layoff process. 	On April 	19, 	1989, 	some of the affected
employees were 	notified of 	their 	impending 	layoffs.
On April 	25, 	1989 	Harrington 	sent a 	letter to Votichenko
which referred to their discussion of April 	13. 	She 	notified him
12

that pursuant 	to 	that discussion 	"the 	university will 	be 	issuing
layoff notices."
Student Activities 	and 	Services 	Department 	Personnel Actions
On May 	10, 	1989, 	Harrington wrote to Votichenko. 	The
letter, 	in its entirety, 	is as follows:
This 	follows 	my previous 	correspondence 	to
you 	regarding 	education 	and 	registration 	fee
budget 	cuts on the Berkeley Campus, 	and your
expressed 	interest 	in being 	notified
regarding the 	effects 	of 	such actions 	on
personnel.
Please be 	advised 	that 	the 	Student Activities
and Services 	(SAS) 	Department 	is planning a
reorganization 	in order 	to meet 	education and
registration fee budget 	cuts. 	The 	following
actions 	are proposed:
1. 	The 	Program Analysis 	and Development
Component 	and 	the 	Project 	Liaison and
Coordination Component will 	be phased
out July 	1, 	1989. 	The 	staff in these
two 	components will 	be 	reassigned to 	the
Student 	Group Advising 	Component 	and 	the
Orientations 	and 	Information 	Service
Component 	and downward 	reclass 	of 	one
Student Affairs 	Officer 	IV position to 	a
Student Affairs 	Officer 	III 	position.
Plans 	call 	for the retention of 	the
incumbent, 	a probationary employee, 	in
the position at 	the 	lower 	level 	in order
to avoid a 	layoff.
2. 	Legal 	Services will 	report directly to
the Director.
3. 	A Secretary II position, 	currently
assigned 	to 	Program Analysis 	and
Development will 	be 	reassigned 	to
Orientation 	and 	Information 	Services.
4. 	The plan calls 	for the re-establishment
of 	four Student Affairs 	Officer
positions as 	11 month positions.
Currently two of 	the positions 	are
twelve month positions 	and two 	of 	the
positions 	are 	10 month positions.
13

5. 	Project 	Liaison and Coordination will 	be
reassigned 	to 	Orientation 	and
Information Services.
6. 	The 	Spirit 	Group 	function will 	transfer
from SAS 	to 	the 	Department of
Recreational 	Sports. 	Please be advised
that no 	employees 	are 	involved 	in this
transfer.
7. 	The Multicultural/Ethic 	Specific
Programming, 	Program Development,
Cultural Enrichment, 	and Residential
Life 	functions will 	transfer 	from SAS 	to
the Office of 	the Dean of 	Students.
Please be 	advised that 	no 	employees 	are
involved 	in this 	transfer.
As 	you will 	note a 	number of 	the 	changes
represent 	reassignments 	within 	the 	Department
or reassignments 	of 	functions 	to 	other
departments that do not 	include 	staff. 	This
information 	is 	being provided to you to
assist 	you 	in understanding 	the 	organization
changes 	that 	are being planned.
If you wish to 	submit 	comments 	regarding the
effects 	of 	the planned changes 	on personnel,
please 	submit 	them to my office by May 	30,
1989. 	If your organization wishes 	to meet to
discuss 	the effects 	of the planned changes
upon personnel, 	please contact Cynthia
Burnham at 	642-0429 	to arrange 	a meeting.
Please make this 	contact as 	soon as possible
so that a mutually agreeable meeting time
prior to May 30, 	1989 	can be arranged.
AFSCME 	submitted 	neither 	comments 	nor a 	request 	for 	a
meeting 	to discuss 	the personnel 	changes 	or the 	reorganization.
Relations 	With 	Schools 	Department 	Personnel Actions
On May 	24, 	198 9 Harrington notified Votichenko of a planned
layoff 	in the 	Relations with 	Schools 	Department. 	She 	told him
that 	the 	University 	"would 	like 	to 	issue 	the 	layoff 	notice 	to 	the
employee on June 	1, 	1989, 	with an effective date of June 	30,
1989." 	As 	this 	time-line 	could 	impact AFSCME's 	right 	to meet 	to
14

discuss 	the 	effect of the 	layoff action, 	she asked 	if the 	"above
described process 	is 	acceptable to AFSCME". 	Votichenko 	contacted
Harrington on June 	1, 	1989, 	and 	stated AFSCME had no objections
to her proposal 	regarding the 	layoff 	of 	the 	employee 	in the
Relations with 	Schools 	Department. 	She 	renewed her offer to 	meet
on the 	effects 	of 	the 	layoff. 	AFSCME did not 	communicate any
request 	to meet on this 	matter.
On June 7, 	1989, 	Frank I. 	Ketcham, 	Budget Officer, wrote
Harrington the 	following memo:
Your April 	11, 	1989 memo noted that AFSCME
had requested 	a 	listing 	of 	those 	units 	that
have 	received 	cuts 	in their Educational 	and/
or Registration Fee budgets.
Some decision makers 	have yet 	to totally
finalize the 	cuts 	they will 	assign to
specific 	units 	(though agreeing 	to 	achieve
their overall target). 	However, 	rather than
further delaying my response, 	I 	thought I
would 	sent you what 	I 	have. 	As 	you know the
reductions 	that will 	be 	assessed were
determined 	in 	consultation with 	the 	(ASUC)
Committee on Student Fees.
II .
Accompanying this 	memo was 	a 	list of 	ed/reg 	fee units.
On June 	13, 	1989 Harrington wrote to Votichenko as 	follows:
This 	follows 	your 	request 	for 	identification
of 	the 	units which may be 	affected by 	the
Education and 	Registration Fee 	cuts 	described
in previous 	correspondent. 	A list of 	the
units 	is provided below. 	Please be advised
that this 	list is tentative. 	Furthermore,
please be 	advised 	that 	the budget 	cut plans
will 	not 	necessarily 	impact personnel.
Attached was 	a 	list of thirty-three units. 	She 	concluded the
letter with 	"If you have any questions, 	please contact me."
The 	actions 	in the 	three described departments were 	the 	only
personnel actions 	taken as 	a result of 	the 	ed/reg fees 	funding
15

cutbacks. 	In general the cutbacks were achieved through a
reduction in 	supplies, 	equipment and travel 	or 	in new or
increased user 	fees.
The 	University has 	met 	in the past 	regarding 	layoffs
pursuant to AFSCME's 	request. 	On some occasions, 	changes 	in the
proposed plans have been made, 	and, 	in at least one instance, 	a
proposed 	layoff 	action was 	reversed.
ISSUES
Did 	the 	University 	fail 	to provide 	specifically 	requested
information 	that was 	relevant 	and 	necessary 	for 	the Association
to 	fulfill 	its 	responsibilities, 	in violation of 	subdivisions 	(a)
(b) 	or 	(c) 	of section 3571?
CONCLUSIONS 	OF 	LAW
As 	a general rule, 	employers 	are required to provide all
information that 	is 	necessary and 	relevant 	for their 	employees'
representative 	to discharge 	its 	duty to 	represent 	them. 	Azusa
Unified School District 	(1983) 	PERB Decision No. 	374; 	Mt. 	San
Antonio Community College District 	(1982) 	PERB Decision No. 	224;
Stockton Unified School District 	(1980) 	PERB Decision No. 	143.
This 	policy 	is 	designed 	to 	facilitate 	effective 	bargaining 	and
dispute 	resolution. 	Failure 	to provide 	relevant 	information to
an exclusive representative 	is 	a refusal 	to bargain, 	a violation
of section 3571(c).
However, 	a non-exclusive representative is 	granted no
independent 	right 	to 	such 	information. 	The 	University does 	have
a 	duty 	to provide 	such 	information to 	its 	non-represented
16

employees, 	but the rights of the non-exclusive representative, 	to
the extent that they exist, 	are derivative; 	they are the rights
of 	an agent or representative of 	the employees. 	Regents 	of 	the
University of California v. 	PERB 	(1985) 	168 Cal. 	App.3d 937, 	[214
Cal.Rptr. 	698.]
There was 	no evidence proffered at 	the 	formal hearing, 	nor
was 	there 	an allegation 	in the 	charge 	that AFSCME was 	requesting
such 	information as 	an agent of a 	specific 	employee(s). 	Both the
February 	14th 	and 	27th 	letters 	were written on AFSCME 	letterhead
and 	signed by AFSCME 	officials. 	Its 	failure to 	identify 	its
derivative right to 	such 	information is 	fatal 	to 	its 	charge.
AFSCME was 	not 	entitled 	to 	such 	information 	in 	its 	own name.
Therefore, 	its 	cause of 	action with regard to non-exclusively
represented 	employees 	is 	denied.
In any 	"failure 	to provide 	information" 	charge the 	first
issue 	that must be 	examined 	is 	whether 	the material 	requested was
necessary 	and 	relevant 	to 	the 	representative's 	duty 	to 	represent
its members.
AFSCME was 	attempting 	to 	obtain 	information regarding 	a
budgetary 	cutback and a 	hiring 	freeze 	in 	ed/reg 	fees 	departments.
It was 	given 	little or no 	information regarding 	either the
procedures 	to 	be 	followed 	or 	the 	extent 	to which 	such 	cutback and
freeze would 	impact terms 	and conditions 	of 	employment. 	It
requested 	additional 	information 	from the 	University 	so 	as 	to
inform 	its 	members 	about 	the potential 	impact 	of 	such 	actions 	on
their employment 	status. 	It 	is 	therefore determined that 	such
17

information was 	necessary 	and 	relevant 	to AFSCME's
representational 	responsibilities.
The 	second 	issue 	that must be 	examined 	is whether AFSCME
made 	a 	clear 	and unconditional 	demand on the 	University 	for 	such
material.
On February 9, 	1989, 	after Harrington's 	initial
notification, 	Votichenko 	asked her 	for additional 	information.
She 	replied that 	she would provide 	it when 	it became 	available.
On February 	14 	he wrote 	Harrington regarding a meeting that 	he
would 	schedule 	once 	she 	"provided the 	Union with 	specific
information 	about 	the 	impact 	of 	the 	cuts 	on the 	employees 	. . . "
On February 27, 	1989, 	Sayre, 	at Votichenko's request, 	asked
Harrington 	for a 	clarification of 	the 	information 	she
(Harrington) 	had 	supplied to him by phone on February 	9.
She asked for, 	among other things, 	specific 	information
regarding 	(1) 	the hiring freeze, 	(2) 	reclassifications, 	(3) 	the
potential for layoffs, 	(4) 	the chronological parameters of the
hiring freeze, 	and 	(5) 	a list of the campus' 	reg/ed fee
departments. 	The only 	information given to AFSCME 	after the
initial 	contact on February 	9 	concerned 	specific 	layoffs 	or
actions 	that directly affected employees' 	terms 	and conditions 	of
employment. 	There was 	no 	information 	supplied regarding the
procedures 	by which the 	individual 	units were to 	exercise 	their
discretion or 	the parameters 	of 	such discretion.
18

More 	specifically, 	the 	University 	failed to tell AFSCME
(1) 	that the freeze on hiring, 	promotions, 	and transfers of
employees 	was 	only 	effective until 	the unit 	had 	"effected 	its
assigned cut", 	(2) 	that reclassifications would 	"continue to be
submitted through normal 	channels", 	(3) 	anything about the
potential of 	layoffs until April 	4, 	1989, 	when Harrington called
Votichenko 	and 	told him 	that 	a 	Storekeeper 	in the 	Recreational
Sports 	Department would be 	laid off 	shortly, 	(4) 	the 	freeze was
effective 	on February 	2 	and would 	continue 	in 	effect 	for 	each
unit until 	it met 	the predetermined budget reduction targets 	and
(5) 	which campus 	departments were 	funded by ed/reg 	fees 	and
therefore 	subject to the 	freeze.4
All 	of 	the 	listed 	information was 	readily 	available 	in
Park's 	two memos dated February 2 	and February 23, 	1989.
The 	University's 	contention that 	it was 	not obligated 	to
respond to Sayre's 	inquires 	is 	not 	sufficient to absolve 	it 	of 	a
violation in this 	case. 	Votichenko's 	general 	inquiry to
Harrington on February 	9 	and his 	letter of February 	14 were
sufficient 	to put 	the 	University 	on notice 	that AFSCME was
interested 	in 	obtaining 	information 	regarding 	the 	procedural
aspects 	of 	the 	implementation of 	the hiring 	freeze 	and budgetary
cutbacks 	and not 	just asking 	for a 	notification of 	the decisions
made 	by 	the 	University 	that 	affected 	the 	terms 	and 	conditions 	of
4 The fact that the University on June 	13, 	1989, 	finally
provided AFSCME 	and Votichenko with a 	"tentative" 	list 	of 	units
"which may be affected 	" 	by the 	ed/reg 	fee cutbacks does 	not
absolve 	the 	University 	from the 	consequences 	of 	its 	failure 	to
provide 	such 	information 	for over 	four months.
19

employment. 	Sayre's 	letter merely particularized Votichenko's
general 	request.
Based on all of the 	foregoing, 	it 	is determined that the
University did 	refuse 	to provide 	requested 	information 	that 	was
necessary and relevant 	for AFSCME 	to 	fulfill 	its 	duty of
representation to 	those 	employees 	for whom 	it was 	an exclusive
representative.
With regard 	to 	those 	employees 	for which AFSCME
is 	the 	exclusive representative 	this 	failure to provide
interferes 	with AFSCME's 	duty 	to 	effectively negotiate 	on 	their
behalf 	and 	the 	duty 	to 	monitor 	compliance with 	the 	collective
bargaining contract, 	a violation of 	section 3571(c). 	This 	same
conduct 	denied AFSCME 	its 	right 	to 	represent bargaining 	unit
members 	in violation of 	subdivision 	(b) 	of 	section 3571.
With regard to AFSCME's 	request 	for 	information on behalf 	of
those University 	employees 	that 	have 	no 	exclusive 	representative,
the 	University has 	no duty 	to 	directly provide 	such 	information.
As AFSCME's;request*was 	in 	its 	own name, 	and not derivatively
through 	specific 	employee(s), 	the University did not violate 	the
Act when 	it 	failed 	to provide 	such 	information.
SUMMARY
Based on the 	foregoing Findings 	of 	Fact and 	Conclusions 	of
Law, 	and a thorough examination of the entire record, 	it 	is
determined that 	there 	is 	sufficient 	evidence upon which 	to
determine that the District has violated 	subdivision 	(c) 	of
section 3571, 	and derivatively subdivision 	(b), 	when it failed to
20

. . . ..
provide 	requested 	information 	that was 	relevant 	and 	necessary 	for
AFSCME 	to 	fulfill 	it duties 	under the Act.
REMEDY.
PERB, 	in section 3563(h), 	is given the power to
. 	. 	. 	. 	investigate unfair practice charges
or alleged violations 	of this 	chapter, 	and to
take 	such 	action and make 	such determinations
in respect 	of 	such charges 	or alleged
violations 	as 	the board deems 	necessary to
effectuate the policies 	of this 	chapter.
In order to remedy the unfair practice 	of 	the 	University and
to prevent 	it 	from 	benefiting 	from 	its 	unfair 	labor practice,
and 	to 	effectuate 	the purposes 	of 	the 	Higher Education Employer-
Employee Relations Act, 	it 	is 	appropriate to order the University
to 	cease 	and desist 	from 	failing to provide 	necessary and
relevant 	information to AFSCME 	in both 	its 	exclusive
representative 	and 	its 	non-exclusive 	representative 	status.
It 	is 	also 	appropriate 	that 	the 	Respondent be 	required 	to
post a 	notice 	incorporating the terms 	of this 	order. 	The notice
should be 	subscribed by 	an authorized 	agent 	of 	the 	University,
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
notice 	shall not be reduced 	in size, 	defaced, 	altered or covered
by 	any other material. 	Posting 	such a 	notice will provide
employees with notice that 	the 	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
will 	announce 	the 	Respondent's 	readiness 	to 	comply with 	the
ordered 	remedy. 	See 	Placerville 	Union School 	District 	(1978)
21

PERB Decision No. 	69. 	In Pandol and Sons v. 	Agricultura	- 	l 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
Based upon the 	forgoing Findings 	of Fact, 	Conclusions 	of 	Law
and the 	entire record of 	this 	case, 	it 	is 	found that the Regents
of 	the 	University of 	California violated 	subdivision 	(c) 	and,
derivatively, 	subdivision 	(b), 	of section 3571 of the Higher
Education Employer-Employee 	Relations Act. 	Pursuant 	to 	section
3563(h) 	it 	is hereby ORDERED that the Regents 	of 	the University
of California, 	its president, 	chancellor(s) 	and its
representative 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Failing to provide, 	upon demand, 	to AFSCME, 	as an
exclusive representative of 	University employees, 	all 	information
that 	is 	necessary and relevant 	for AFSCME 	to discharge 	its 	duty
of 	representation.
B. 	Denying to AFSCME 	rights 	guaranteed to 	it by the
Higher 	Education Employer-Employee 	Relations Act.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OFF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT.
A. 	Within ten 	(10) 	workdays 	of 	service of a 	final
decision in this matter, 	post at all work locations where notices
are 	customarily placed at 	the 	University of California, 	Berkeley
22

campus, 	copies 	of the Notice attached hereto as an Appendix. 	The
Notice 	must 	be 	signed by 	an authorized 	agent 	of 	the 	University 	of
California, 	indicating that 	the University 	shall 	comply with 	the
terms 	of 	this 	Order. 	Such posting 	shall be maintained 	for a
period of thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be taken to 	insure that the Notice 	is 	not reduced 	in 	size,
altered, 	defaced or covered by any other material.
B. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with 	this 	Order 	to
the 	San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions. 	Continue 	to
report 	in writing 	to 	the 	Regional 	Director thereafter 	as
directed. 	All 	reports 	to 	the Regional Director 	shall be
concurrently 	served 	on 	the 	Charging 	Party 	herein.
•
It 	is 	further ORDERED that all 	other aspects 	of the Charge
and 	Complaint 	are 	hereby dismissed.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
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, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
23

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, 	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, 	sections
32300, 	32305 and 32140.
Dated: 	November 15, 	1990 ALLEN R. 	LINK
Administrative 	Law Judge
24