Regents of the University of California (University of California-American Federation of Teachers) (PERB 0907H)

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. 	907-H
October 	1, 	1991
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Appearances: 	Leonard, Carder, Nathan, 	Zuckerman, 	Ross, Chin &
Remar by William H. 	Carder, 	Attorney, 	for University Council-
American Federation of Teachers; 	Marcia J. 	Canning, 	Attorney,
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 appeal by The 	Regents 	of 	the
University of California 	(University or UC) 	to 	the 	Supplemental
Proposed 	Decision 	and Order 	Transferring 	Proceeding 	to 	the 	Board,
issued by a 	PERB administrative 	law 	judge 	(ALJ) 	(attached hereto)
which 	found 	that 	the 	charge 	filed by 	the 	University Council-
American Federation of Teachers 	(Federation) 	in Case No.
LA-CE-235-H 	was 	timely 	filed. 	:. .
In Regents 	of 	the University of California 	(University
Council-American Federation of Teachers) 	(1990) 	PERB Decision
No. 	826-H (UC (UC-AFT) I ) . 	the Board affirmed the ALJ's proposed
decision, 	finding that the University violated 	section 3571(a),
(b) 	and 	(c) 	of the Higher Education Employer-Employee Relations
_____)

Act 	(HEERA or Act) 	by its 	conduct on the 	Santa Cruz 	campus.1
With regard to the Los Angeles 	campus, 	the Board reversed the
ALJ's 	dismissal 	of 	the 	charge 	and 	ordered 	the 	record 	be 	reopened
and 	evidence be taken on the 	issue 	of 	timeliness 	of 	the 	filing 	of
the charge.2N
In his 	Supplemental 	Proposed Decision, 	the ALJ 	found 	that
the charge 	in Case No. 	LA-CE-235-H was 	filed in a 	timely manner.
The 	Board has 	reviewed the 	entire 	record 	in this 	matter,
including the University's 	statement of 	exceptions, 	the
Federation's 	response and 	the 	transcripts 	of 	the 	supplemental
hearing, 	and 	finding the 	Supplemental 	Proposed Decision to be
free from prejudicial, error, 	adopt it as a portion of the
decision of 	the Board itself.
Similar 	charges 	were 	filed with 	regard to 	conduct 	engaged
in on the Los Angeles 	campus, 	although the complaint 	alleged
solely a violation of HEERA section 3571(b) 	and 	(c), 	and did not
include 	subsection 	(a). 	HEERA is 	codified at Government Code
section 3560 	et 	seq. 	Unless 	otherwise indicated, 	all 	statutory
references are to the Government Code. 	Section 3571(b) 	and 	(c)
provides, 	in pertinent part:
It 	shall be unlawful 	for the higher 	education
employer to do 	any of 	the 	following:
(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.
2At the same time, 	the Board, 	in UC 	(UC-AFT) 	I, 	clarified
the rule of 	law to be applied 	in determining timeliness, 	i.e.,
commencement of the statute of limitations. 	(UC 	(UC-AFT) 	I, 	pp.
7-8.) 	In addition, 	the Board held that the relation back
doctrine 	did 	not 	apply to 	the 	charge 	concerning 	events 	occurring
on the Los Angeles 	campus. 	(Id. 	at pp. 	6-7.) 	Further, 	the Board
held that 	the doctrine of 	equitable 	tolling 	is 	no 	longer viable.
(Id. 	at pp. 	2-5.)
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As 	the Board finds 	the charge 	in Case No. 	LA-CE-235-H was
timely filed, 	it is necessary to address the merits 	of the
alleged violation by the UC on its 	Los Angeles 	campus. 	In
JC 	(UC-AFT) 	I. 	the Board adopted the ALJ's 	recitation of the
facts 	in the proposed decision 	and 	affirmed 	the ALJ's 	conclusions
of 	law, 	with 	some clarification. 	The 	findings 	of 	fact adopted by
the 	Board 	contained 	facts 	relevant 	to 	the 	charges 	concerning 	both
the Los Angeles 	and Santa Cruz 	campus. 	Only the 	findings 	of 	fact
relevant 	to 	the 	case 	currently before 	the 	Board 	are 	reiterated
herein.
FINDINGS 	OF 	FACT
. . Background
UC, 	which operates 	a 	statewide 	system of public
universities, 	is 	an employer within the meaning of 	HEERA 	section
3562(h). 	The Federation, 	an employee organization within the
meaning of 	section 3562(j), 	is the exclusive representative of a
statewide unit 	of 	the 	University's 	non-senate 	instructional
employees. 	The unit, 	totaling between 	1,800 	and 	2,000 	employees,
primarily consists 	of 	lecturers who are 	not 	on tenure 	track 	to
become permanent 	faculty members. 	They 	serve 	two major 	functions
for the University, 	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. 	UC 	also 	employs 	teaching
assistants 	who are usually graduate 	students	. . . 	, 	to perform 	some 	of
33

these functions. 	Historically, 	UC had offered lecturers
appointments 	ranging 	in 	length 	from one 	quarter to 	one year,
although 	two-year appointments 	were 	possible under 	the
University's policies. 	Part-time appointments were common, 	and
the 	University's policy also provided 	for 	split 	appointments,
whereby 	lecturers would 	teach 	courses 	for more 	than one
department.
UC 	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 percent
time were 	only 	eligible 	for 	continued 	employment 	at 	no 	more 	than
a 	50 percent appointment. 	It was 	this 	lack of 	security in
employment 	that 	the 	Federation 	sought to 	change when 	it 	commenced
negotiations with th.:.
e 	University 	for 	an 	initial 	collective
bargaining agreement 	(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
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.
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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
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.
1. 	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
5

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 	[sic] 	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.
B. 	Initial Appointment 	and Reappointment
1. 	Appointment and Reappointment
a) 	Normally, 	the initial 	appointment 	shall be
for a period of 	service of one 	(1) 	academic
year or less. 	However, 	the initial
appointment may be 	for a period of 	up 	to 	two
(2) academic years.
b) 	Reappointment(s) 	during the 	first 	six 	(6)
years 	of 	service 	at 	the 	same 	campus 	may be
for a period of up to three 	(3) 	academic
years.
c) 	The duration of 	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.
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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:
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
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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 Federation
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 	logger heads 	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 the University
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
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the appointments 	article, 	the positions 	taken by the parties
during and after the 	completion of 	negotiations, 	and various
interpretations 	given to 	the 	article 	in the 	University's 	policy
manuals 	and other publications. 	Upon review of 	the 	record,
certain elements 	of this 	article are apparent, 	and need no
interpretation.3 First], 	it is 	clear that Article VII 	(B) 	is 	an
express 	limitation on UC's 	discretion 	in making post-six-year
appointments.4 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.5 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 Federation testified, 	and as 	their bargaining
3In the proposed decision, 	the ALJ 	noted that any testimony
to the 	contrary was 	not 	credited 	if 	it 	alleged that 	a different
meaning was 	agreed to at the bargaining table; 	or. was 	considered
irrelevant 	if 	it 	consisted of 	alleged 	statements 	made during 	the
course of 	the 	ever-changing positions 	of 	the parties 	during 	the
negotiations, 	or a witness' 	personal interpretation of the
provisions.
4In UC 	(UC-AFT) 	I, 	the ALJ and Board resolved any doubt on
this 	issue by the 	fact that the 	University'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.)
5Again, 	any testimony that the parties 	agreed to a 	contrary
interpretation was 	not credited by 	the ALJ, 	and pre-agreement
positions 	and personal 	interpretations 	were 	considered
irrelevant.
9
6
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notes reflect, 	that Robert Bickal 	(Bickal), 	UC's then chief
negotiator, 	commented that three-year appointments were 	now
"mandatory."6
Therefore, 	UC, 	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 	the 	University,
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 Federation's witnesses. 	Recognizing that
the 	term may have a 	special meaning 	in the 	context 	of 	the
University'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
6Bickal, 	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 Federation. 	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.
10

understanding of the terms 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
Federation's witnesses, 	to an all-encompassing concept that
would, 	in effect, 	permit the University to deny three-year
appointments 	on the basis 	of virtually any 	consideration 	it
deemed relevant. 	While most, 	if not all, 	of UC'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 UC's 	interpretation of Article VII),
the 	University 	has 	clearly 	failed 	to 	establish 	any 	mutually
understood meaning 	for the 	term, 	"instructional 	need" 	other 	than
would be 	suggested by 	the 	dictionary 	definition.7
7It 	is 	noted that 	initially, 	the appointments proposals
referred to 	UC'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 Federation's
insistence, 	on the 	stated ground that 	it would permit 	arbitrary
action by departments 	opposed to 	three-year appointments. 	The
University presented evidence that Marde Gregory 	(Gregory), 	the
Federation's 	chief negotiator, 	at one point acknowledged that
instructional 	need 	"in one 	sense" 	includes programmatic 	need, 	and
that Bickal, 	on agreeing to delete the term, 	"programmatic,"
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 	UC would have
the 	broad-based discretion 	in post-six-year 	appointments 	claimed
by 	UC's 	witnesses. 	To the 	contrary, 	the credible 	evidence
establishes that 	the 	Federation requested 	that 	the word,
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"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, 	the
University 	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.
UC 	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 	the University's burden to prove
that the parties 	clearly agreed to 	this. 	The 	strong
preponderance of the evidence, 	however, 	is to the contrary. 	It
is undisputed that during negotiations, 	the Federation'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 Federation'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, 	the University
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 percent to 	16 percent. 	In
addition, 	the University was 	fully aware that even that number
12

would be 	reduced 	through 	terminations 	and 	failures 	to 	obtain
."excellent" ratings 	in the reviews. 	Thus, 	while the somewhat
dire 	implications 	that 	some of 	UC'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 the University'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.
Furthermore, 	Bickal, when testifying, 	initially supported
the 	interpretation of 	the Federation'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.
(UC (UC-AFT) I. 	proposed decision, 	p. 	13.)
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,
13

Bickal made no reference to 	financial 	considerations. 	Based on
the 	foregoing, 	it 	is 	concluded that 	at 	no 	time did Bickal 	state
to 	the 	Federation'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 the
decision as 	to whether specific 	courses would be taught, 	as
opposed 	to 	broader 	financial 	considerations.8
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 	Federation had 	initially proposed 	a
"faculty displacement" 	article which 	afforded 	substantial 	job
security for unit members. 	It 	is 	undisputed that when UC
initially agreed to 	the 	concept 	of 	three-year appointments,
Bickal 	insisted 	that 	a 	traditional 	layoff provision replace 	the
8 Bickal's 	testimony, 	that he told the Federation's
representatives 	that 	resources 	would be 	considered both 	before
and after three-year appointments, 	was 	not 	credited by the ALJ.
Said 	testimony 	conflicts 	with 	the 	documented bargaining 	history
of Article VII, 	and it is highly unlikely that the Federation, 	in
agreeing to a 	layoff proposal, 	would have also agreed, 	in effect,
to give the University 	"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 	the University's 	other negotiating 	team
members 	at various 	mid-points 	in the negotiations 	which would
conflict with this 	interpretation are 	irrelevant. 	In this
regard, 	the 	Federation 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
'

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 Federation 	subsequently agreed 	to 	a 	far
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.9
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.10
9This 	conclusion 	is 	reinforced by Bickal's 	comments 	at 	the
February 20, 	1986 bargaining session, 	as 	reflected by UC's
bargaining notes, 	that the University 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."
.t.
10The ALJ 	determined 	that while 	Gregory 	credibly 	denied 	that
any 	such understanding was 	reached, 	none 	of 	the 	University's
other witnesses 	contended that 	this was 	agreed to or 	is 	a valid
interpretation and the University, 	in practice, 	has 	never adopted	s . .
15

such an interpretation. 	The ALJ noted that Bickal, 	and 	several
of UC'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 appointments." 	This 	clearly does
not 	limit three-year appointments 	to those 	subsequent 	to 	the
appointment at the 	six-year review. 	On the other hand, 	UC's
November 7, 	1985 proposal 	for Article VII 	(C)(l)(c) 	reads,
"Provided that 	the 	criteria 	set 	forth 	in paragraph 	C-l-a 	above
[instructional 	and programmatic 	need, 	and 	excellent 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. 	The
ALJ 	commented 	that 	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 UC's arguments.
Implementation of Article VII
Implementation of 	the Agreement has 	largely been 	left 	to 	the
University's 	campus 	administrators. 	UC 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."11 It 	is 	undisputed 	that 	the Federation did
By way of 	example, 	UC'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 the 	University'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
- .
16
II

not protest any of 	these 	generalized 	interpretations, 	and did not
file any 'unfair practice charges 	thereon. 	The 	evidence, 	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 Federation was 	satisfied that the University
was 	complying with Article VII.
1. .. .
12
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.)
The 	situation radically 	changed 	in 	the 	second 	year 	that 	the
parties 	operated under the Agreement. 	The 	Federation'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.
The 	conduct 	complained of 	at 	the 	Los Angeles 	campus 	stems
from a decision by Raymond L. 	Orbach 	(Orbach), 	Provost of the
College of Letters and Sciences, 	on October 5, 	1987, 	to set a
limit 	on the 	allocation 	of 	long-term appointments 	for 	the writing
program there. 	The 	Federation contends 	that this 	limit
constituted an 	impermissible 	quota, 	and was 	based on
12The evidence 	shows 	that UC, 	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 Federation considers 	within the 	ambit 	of
instructional 	need.
17

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 	Federation 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.13
At the Los Angeles campus, 	Charles Linwood Batten 	(Batten),
then the Director of that campus' 	writing program, 	and Herbert
Morris 	(Morris), 	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
13
The 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.
18

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
for review during the life of the Agreement. 	Nevertheless, 	the
October 	5, 	1987 memorandum states 	that 	since 	60 percent of 	the
total 	lecturers 	eligible 	for 	six-year reviews 	over the 	life 	of
the Agreement were eligible 	for review in that year, 	only 	60
percent 	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
19

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 	the 	University 	"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
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.
20

DISCUSSION
The * Unilateral - 	Changes at UC. 	Los Angeles
It 	is undisputed that the matter at issue herein, 	the
appointments article of the parties' 	Agreement, 	is within the
scope of representation. 	(UC 	(UC-AFT) 	I. 	proposed decision,
p. 	30.) 	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.) 	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.) 	In UC 	(UC-AFT) 	I. 	the Board found it
appropriate 	to hold the parties 	to 	the 	apparent 	language 	of 	the
Agreement. 	(Id.. 	proposed decision, 	pp. 	30-31.)
It 	is 	a well 	established rule of 	law that the doctrine of
collateral 	estoppel 	(or issue preclusion) 	precludes 	relitigation
of 	an 	issue which has 	been 	fully and 	fairly 	litigated 	and 	finally
decided 	in a prior action involving the 	same parties. 	(State of
California. 	Department of Personnel Administration 	(CSEA) 	(1991)
PERB Decision No. 	871-S, 	p. 	6., 	citing Pacific Coast Medical
21

Enterprises v. 	Department of Benefit Payments 	(1983) 	140
Cal. App. 3d 197, 214 [189 Cal.Rptr. 558].)
In UC (UC-AFT) I. 	the Board affirmed the ALJ's
interpretation of the parties' 	Agreement, 	with some further
clarification. 	The Agreement 	at 	issue was 	negotiated on behalf
of 	the University by 	its 	negotiators 	and 	applied to 	all 	of 	the 	UC
campuses. 	In addition, 	the ALJ, 	in determining the correct
interpretation to ascribe to 	the Agreement, 	focused on the
conduct of the UC negotiators, 	as 	opposed to the 	statements 	and
opinions 	of 	individuals 	at any of 	the UC 	campuses. 	(UC 	(UC-AFT)
i, 	p. 	31.) 	Therefore, 	the issue of the meaning to be ascribed
to the parties' 	Agreement 	in this 	case 	is 	identical 	to the 	issue
of 	contract 	interpretation ruled upon in UC 	(UC-AFT) 	I. 	As 	this
issue was 	fully 	and 	fairly 	litigated 	and 	finally 	decided 	in
UC 	(UC-AFT) 	I. 	the Board 	finds 	that the Board's prior ruling on
this 	issue applies with equal 	force to the present 	case.
In UC 	(UC-AFT) 	I. 	the Board found that Article VII 	of the
Agreement was 	clear and unambiguous 	on 	its 	face, 	and that 	it 	set
forth mandatory criteria which, 	if 	satisfied, 	require three-year
appointments. 	The 	Board 	found that 	the phrase 	"instructional
need" 	was 	intended to hold its 	dictionary definition, 	e.g., 	UC
anticipated that 	courses 	taught 	by 	a 	lecturer under 	review would
continue 	to be 	taught by a 	lecturer 	for the relevant 	three-year
period. 	(UC 	(UC-AFT) 	I. 	proposed decision, 	pp. 	30-32.)
In addition, 	the Board 	found that Article VII 	does 	not
disallow the 	University 	from 	taking 	fiscal 	or 	financial
22

considerations 	into account 	at 	every 	stage of 	the decision-
making process 	regarding 	reappointment 	of 	post-six-year
lecturers. 	Rather, 	those considerations must be taken into
account 	in order to determine 	instructional 	need 	in Article VII
C(l)(a)(l) 	of the Agreement, 	and specifically whether a certain
class will be taught 	for three years by a Unit 	18 	lecturer.
However, 	once 	it has 	been decided that a 	course will be taught
for three years by a Unit 	18 	lecturer, 	the University must 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. 	The 	Board therefore held that 	it 	is 	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. 	(UC 	(UC-AFT) 	I.
pp. 9-10.)
On the Los Angeles 	campus, 	the decision was made to achieve
a 	ratio 	of 	three 	lecturers 	on 	one-year 	appointments 	to 	every 	one
lecturer on a three-year appointment. 	Thus, 	three-year writing
lecturer positions 	were 	allocated 	accordingly. 	The 	Board 	finds
that 	the decision to 	create a percentage 	ratio 	of 	three-year 	to
one-year appointments was 	not based upon the 	criteria 	established
under the Agreement.14	14 	Instead, 	the 	University 	interjected
14Similarly, 	in UC 	(UC-AFT) 	I, 	the Board found that, 	as to
the 	Santa Cruz 	campus, 	the decision to 	create a percentage ratio
of 	three-year-to-one-year 	appointments 	was 	not 	based upon 	the
23

criteria 	into 	the 	determination 	not 	agreed 	upon by 	the parties.
Based upon that 	finding, 	the Board holds 	that UC violated the Act
by unilaterally 	implementing a 	change 	in the parties' 	agreed upon
policy with 	regard 	to post-six-year 	appointments.
criteria 	established 	in the Agreement. 	As 	such, 	the Board 	found
that by 	interjecting 	criteria 	into 	the Agreement 	not 	agreed 	to 	by
the parties, 	UC violated the Act by unilaterally 	implementing a
change 	in the 	agreed-upon policy 	regarding post-six-year
reappointments. 	(UC 	(UC-AFT) 	I. 	p. 	10.)
The 	Remedy
With regard to the appropriate remedy in this 	case, 	the
Board notes 	that as 	a result of 	the violation, 	eight 	lecturers
received three-year appointments 	and 	four 	lecturers, 	who had
otherwise 	successfully 	completed the 	review process, 	were denied
any future employment.15 Therefore, 	as 	to the 	four employees who
were denied 	future employment as 	a result of this 	violation, 	they
must be 	restored to 	the 	status 	quo 	ante 	and made whole 	for any
damage they 	suffered as 	a result of the unlawful 	conduct. 	(Rio
Hondo Community College District 	(1983) 	PERB Decision No. 	292.)
In accord with UC 	(UC-AFT) 	I. 	the Board 	should not order the
parties 	to do 	something which 	is 	in contravention of 	the
contract, but, 	rather, 	should order the 	lecturers 	be returned to
the positions 	they would have 	held had 	the 	violation not 	been
committed. 	To achieve the proper remedy, 	a 	compliance proceeding
is 	required wherein the 	instructional 	need during 	the 	applicable
15
On the Santa Cruz campus, 	by comparison, 	no lecturers were
denied employment. 	Rather, 	lecturers were given reduced
schedules.
24
15

three-year period will 	be 	determined, 	and 	any harmed 	lecturers
will 	receive 	restitution. 	. ..
The 	violations 	occurred with 	regard 	to 	three-year
appointments beginning 	in the 	1987-88 	school year. 	Therefore,
any 	lecturers who would have 	been 	employed by 	UC 	during 	the
three-year 	contract 	period 	should 	be 	awarded 	the 	other 	benefits
of 	employment which 	the 	lecturers 	would have 	accrued 	had 	no
violation occurred. 	This 	includes, 	but is not 	limited to,
evaluation for 	employment under the 	current Agreement, 	including
the restoration of 	any benefits 	to which the 	otherwise 	employed
lecturers would have been entitled, 	if no violation had occurred.
With regard to the posting requirement, 	in accord with
UC 	(UC-AFT) 	I; the Board 	finds 	it appropriate that the 	notice be
posted 	system-wide. 	The notice 	itself will 	specify that 	the
violation occurred only on the 	Los Angeles 	campus.
ORDER
Based upon all 	of 	the 	above 	and 	the 	entire 	record 	in this
matter, 	the Board finds 	that The Regents 	of 	the 	University of
California violated section 3571(b) 	and 	(c) 	of the Higher
Education Employer-Employee 	Relations Act. 	The Board 	REMANDS
this 	case 	to 	the 	Los Angeles 	Regional 	Director and ORDERS 	that
compliance proceedings be 	instituted, 	in order to determine 	the
instructional 	need at the Los Angeles 	campus 	during 	the
three-year period in question 	(academic 	years 	1987-88, 	1988-89
and 1989-90), 	upon which back pay, 	reinstatement, 	and/or other
benefits 	of 	employment as 	described above will be 	awarded to 	any
25

unit members who 	suffered harm as 	a result of 	the 	conduct 	found
herein to be 	in violation of 	the Act.
IT 	IS 	HEREBY ORDERED 	that 	The 	Regents 	of 	the 	University of
California 	(University) 	and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying the 	University Council-American Federation
of Teachers 	(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 Agreement 	between the 	University 	and 	Federation during 	its
term.
2. 	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 Agreement,
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's 	Los
Angeles 	campus, 	who 	is 	found to have 	suffered 	economic 	and other
harm as 	discussed above 	as 	a 	result 	of 	the 	conduct 	found herein
to be 	in violation of 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
26

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
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 	Los 	Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with her 	instructions.
Chairperson Hesse 	joined 	in this 	Decision.
Member Carlyle's dissent begins 	on page 	28.
27

Carlyle, 	Member, 	dissenting: 	I dissent from the decision
of the administrative 	law judge 	(ALJ) 	and the conclusion of 	my
colleagues 	that the 	charge 	in this 	case was 	timely 	filed.
In the original proceeding, 	Regents 	of 	the University of
California 	(University 	Council-American 	Federation 	of 	Teachers)
(1990) 	PERB Decision No. 	826-H 	(UC 	(UC-AFT) 	I ) . 	the Public
Employment Relations 	Board 	(Board) 	clarified the 	issue of when
the 	six months 	statute of 	limitations begins 	to run by
determining 	that:
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. 	. . .
(Id. 	at p. 	7.)
The complaint was 	filed on May 4, 	1988. 	Therefore, 	the
charge would 	be 	timely 	filed 	if 	the 	University 	Council-American
Federation of Teachers 	(Federation) 	did not 	learn of 	the Regents
of the University of California's 	(University or UC) 	action prior
to November 	4, 	1987.1 To 	establish that the 	action was 	filed
in a timely manner, 	the Federation had the burden to prove
timeliness 	as part of 	its prima 	facie case. 	(California 	State
University, 	San Diego 	(1989) 	PERB Decision No. 	718-H.) 	The
Federation has 	not 	sustained this 	burden.
1All dates herein refer to 	1987, 	unless 	otherwise 	stated.
28

FACTUAL 	BACKGROUND,
Writing program lecturer. Susan Griffin 	(Griffin) 	was
designated by 	the 	Federation to 	handle 	a 	grievance 	under 	the
Memorandum of 	Understanding 	(MOU) 	with 	the 	University 	challenging
the 	limitation of 	three-year appointments 	in the 	UC 	Los Angeles
(UCLA) 	writing program. 	Griffin was 	also designated as 	the
Federation's 	representative 	in handling 	similar 	grievances 	that
might arise 	in other departments 	or programs 	on the 	UCLA campus.
During this 	time, 	Griffin did not hold an elective office.
. .. . '
On October 5, 	Herbert Morris 	(Morris), 	Dean of Humanities,
issued a 	letter to various programs 	and departments, 	including
1.. the writing program, 	in which he 	set 	forth 	limits 	on the number
of 	three-year appointments 	that would be 	approved. 	This 	letter
was based upon a decision by Raymond L. 	Orbach, 	Provost 	of 	the
College of Letters 	and Sciences, 	who had 	set a 	limit on the
allocation of 	long-term 	appointments 	for 	the writing program.
On October 	8, 	the writing program 	lecturers 	met with 	Lynn
Batten, 	director of UCLA's writing program, 	to discuss portions
of Morris' 	October 	5 	letter and the announcement that only eight
full-time equivalents 	(FTEs)2 would be 	approved 	for three-year
term appointments. 	At this 	time 	17 	individuals, 	who had taught
at the University for six years, 	were eligible 	for three-year
appointments 	in that program.
1 .
2"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.
29

Griffin 	attended 	several 	meetings 	with 	University 	officials
to discuss 	the total 	number of FTE appointments. 	On November 	2,
Griffin 	attended a 	grievance 	meeting 	concerning 	the 	effect 	of
Morris' 	announced 	limit on three-year appointments 	in denying
the three-year appointment 	to 	an 	individual 	in the 	English
Department. 	Morris 	and Vice Provost Carol 	Hartzog 	(Hartzog)
attended this 	meeting.
The next day, 	on November 	3, 	Griffin had 	scheduled another
Step 	II3 grievance meeting pertaining to 	a 	separate 	grievance
involving 	the writing program. 	Griffin did not 	attend 	this
meeting. 	Instead, 	several 	lecturers 	met with Morris 	and Hartzog
to discuss 	the 	reduction 	in the allocation for three-year
appointments.
I 	agree with the ALJ that the meetings, 	telephone 	calls 	and
other contacts prior to November 	3, 	between the Federation and
the 	University, 	failed to 	show that 	the 	Federation 	learned 	of
the 	University's 	rationale 	for 	its 	action 	in 	limiting 	three-year
appointments. 	However, 	the record clearly demonstrates 	that 	the
Federation learned, 	at the November 3 meeting, 	the rationale 	for
the University's 	action 	for the 	limitation of 	the 	three-year
appointments.
3Under the terms 	of the MOU, 	Step I 	of the grievance
procedure 	involves 	informal 	discussions 	between the 	grievant
and his 	or her immediate 	supervisor. 	Step 	II 	involves 	a 	review
of 	those discussions with a 	designated 	campus 	official 	at 	a
higher administrative 	level. 	Step 	III 	involves 	reduction of
the grievance to writing, 	a 	further meeting of the parties 	to
review the matter, 	and the 	issuance by the 	University of 	a
written decision granting or denying 	the 	grievance.
•
30

Morris testified that, 	in attending the November 	3
meeting, 	it was 	his 	intention to provide 	information as 	to what
the basis was 	for the 	limitation on 	long-term reappointments.
Additionally, 	the grievance notes 	taken by the 	University
indicated Morris believed that: 	(1) 	the determination of
"instructional 	need" 	did 	not 	depend upon whether 	the 	courses
taught by the 	lecturers 	seeking 	reappointment would 	continue 	to
be offered; 	and 	(2) 	the University, 	under the MOU, 	had the right
to 	establish an appropriate 	"balance" 	of 	long-term and 	short-
term 	lecturers 	and 	thereby 	assure 	a 	sufficient 	"infusion of 	new
blood" 	into the writing program.
This 	view is 	supported by the 	Federation when 	it 	stated 	in
its 	charge that Morris, 	on November 	3, 	provided the rationale for
the 	allotment of 	three-year appointments when he 	said:
. . . 	three-year 	appointments 	would
be 	limited 	to 	ensure 	an 	appropriate
balance 	between 	lecturers 	with 	three-year
appointments 	and 	those with 	one-year
appointments. 	He also 	said that this balance
must be achieved, 	not 	just 	in the writing
program, 	but throughout the College.
Dean Morris' 	statement was the announcement
of a 	change 	in policy 	in a major unit of 	the
University. 	It means that, 	contrary to the
policy stated in Article VII, 	the College of
Letters 	and Science will 	no 	longer review
every 	incumbent 	lecturer 	for 	a 	three-year
term after 	six years 	of 	service, 	even though
it has 	been determined that 	the 	incumbent's
position 	should 	continue 	to 	be 	filled by 	a
lecturer.
Moreover, 	the Federation, 	in their own exceptions to the
initial decision of this case 	(UC I ) , 	stated:
31

. 	. 	. 	the unfair practice charge in Case No.
LA-CE-235-H, 	which is part of the record
herein 	. 	. 	. 	stated explicitly that the basis
for 	the 	University's 	limitation on 	long-term
reappointments was 	not 	communicated 	to 	the
Union until the 	Step 	II 	hearing on the
Union's Writing Program grievance, 	which took
place on November 	30, 	1987[4] 	. . . .
(UC 	(UC-AFT) 	I. 	Charging Party's Exceptions,
p. 	13; 	emphasis added.)
Based upon the entire record, 	it is 	sufficiently
demonstrated 	that 	the November 	3 	meeting provided 	the 	attendees
with 	the 	rationale behind 	the 	University's 	action 	in 	its
allocation of 	long-term reappointments.
The question left 	to decide 	is whether any person attending
the November 	3 	meeting was 	representing the Federation. 	The
Board has held that, 	in determining whether an individual 	is 	a
representative of 	an employee organization, 	common 	law agency
principles 	are applicable. 	(Los Angeles 	Community College
District 	(1982) 	PERB Decision No. 	252.) 	Four lecturers attended
the November 3 meeting: 	Cynthia Tuell 	(Tuell), 	Jeanne Gunner
(Gunner), 	Lisa Gerrard and Bill Cullen.
Cynthia Tuell was 	a writing program lecturer. 	Although
Tuell was 	not a Federation official, 	she testified that 	she and
Griffin had volunteered to handle 	the 	grievance 	for 	the writing
program. 	Additionally,. Tuell 	testified that 	she and Griffin
"basically did everything 	for the 	grievance*" 	As 	to 	the
November 	3 	meeting, 	Tuell 	testified that Griffin asked her to
attend the meeting as 	Griffin had attended 	a 	Step 	II 	hearing 	the
4The correct date should read November 3, 	1987.
32

day before 	on the 	English program grievance. 	Although 	Tuell
stated 	that 	she would have 	gone 	anyway, 	the 	testimony
demonstrates 	that 	Tuell 	took the 	responsibility 	seriously 	as
she testified that 	she took the 	lead, 	did most of 	the 	speaking
and was 	seen by the other unit members 	as 	"in charge" 	of 	the
grievance. 	This 	is 	confirmed by Tuell's 	statement to Morris
at the 	end of the meeting that a grievance would be 	filed, 	and
Tuell 	informing Griffin the 	next day what had 	occurred 	at 	the
November 	3 	hearing. 	Just as 	Griffin represented the Federation
at the November 2 meeting, 	I would conclude that Tuell was
working 	in 	concert with 	Griffin on the writing program 	grievance
and was 	representing the Federation at the November 	3 	meeting.
As 	to the other lecturers who attended the meeting, 	there
is 	sufficient 	evidence 	to demonstrate that Gunner was 	also 	a
representative of 	the Federation.5
In the Federation's 	statement of 	exceptions 	to the UC 	(UC-
AFT) 	I case, 	the Federation stated:
Contrary to the 	findings 	of 	the
Administrative 	Law Judge 	(see 	Proposed
Decision, p.24), Griffin further testified
that Lisa Gerrard and Jeanne Gunner, 	who
attended the November 3, 	1987, 	Step II
hearing on the 	Writing Program 	grievance,
were 	also 	acting 	as 	Union representatives
(R.T.II, 	p.84).
While briefs 	are considered to be outside the record, 	it
5I 	would agree with the ALJ that 	the 	record does 	not 	support
a 	finding that 	either Lisa 	Gerrard 	or 	Bill 	Cullen were 	acting 	as
representatives 	of 	the 	Federation at 	this 	meeting.
33

has 	been 	found 	that 	information contained within the 	briefs 	are
reliable 	indications 	of 	a party's 	position on the 	facts 	as 	well
as the law. 	(9 Witkin, 	Cal. 	Procedure 	(3d ed. 	1985) Appeal sec.
251, 	p. 	258.) 	An admission in a brief may be treated as
dispositive 	"where 	it represents 	an express 	concession 	in the
instant phase of the 	case 	(Williams 	v. 	Superior Court 	(1964)
226 Cal.App.2d 666, 	674 	[38 Cal.Rptr. 	291]). 	(Coffee-Rich.
Inc. 	v. 	Fielder 	(1975) 	48 Cal.App.3d 990, 	999 	[122 Cal.Rptr.
302. ]
The ALJ, 	in his supplemental decision, 	stated:
[t]hat-counsel, 	at one point in this
proceeding, 	somehow felt 	it would be
advantageous 	to 	claim a presence by the
Charging Party at 	the November 	3 	meeting
based 	on Griffin's 	testimony does 	not
require a 	finding which 	is 	not 	supported
by the record.
(P. 	16.)
However, 	the Federation's 	admission and testimony of 	the
Federation's 	own witnesses 	provided 	sufficient 	indicia 	of 	an
agency relationship. 	Testimony 	showed 	that Gunner worked 	on
the grievance, 	when 	she was 	not among the group directly affected
by the 	limitation on three-year appointments. 	In addition to
attending the November 3 	meeting, 	Griffin testified that, 	at the
Step 	III 	meeting 	in December, 	Gunner 	split 	responsibility with
Griffin 	for 	the particular writing program 	grievance.
At 	no 	time during 	the 	hearing did 	the 	Federation witnesses
(Tuell and Griffin) 	dispute the others role in the grievance. 	I
would therefore 	conclude that, 	based upon the 	entire record, 	the
evidence 	establishes 	that 	unit 	members 	Tuell 	and Gunner were
34

representatives 	of 	the 	Federation 	and 	any 	knowledge provided 	to
them at 	that meeting 	is 	imputed to 	the Federation as 	of 	that
date.
Finally, 	there is a question as 	to whether there was a
wavering of 	the 	University's 	intent 	regarding 	limitation 	of
three-year appointments when Morris 	stated, 	at the November 	3
meeting, 	that he would be 	"thinking 	further about the allocation"
and 	"would be 	in communication with the 	Provost." 	I 	would
conclude that Morris' 	comment was 	not an 	"evincing of a wavering
intent" 	as 	the testimony 	indicates 	that the Federation
representatives 	at the meeting believed that 	it was 	not 	likely
that 	a 	change would 	occur 	and that 	a 	grievance 	should be 	filed.
As 	the 	charge was 	not 	filed by the 	Federation until 	May 	4,
1988, 	outside the 	six-month statute of limitations, 	the Board is
without 	jurisdiction to 	issue a 	ruling on the 	merits 	of 	this
case.
35

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. 	LA-CE-235-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 	(University) 	violated the 	Higher
Education Employer-Employee Relations Act 	(HEERA), 	section
3571(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 Los Angeles campus.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying the 	University Council-American Federation
of 	Teachers 	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 between the 	University and Federation during 	its 	term.
2. 	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 Agreement,
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's 	Los
Angeles 	campus, 	who 	is 	found to have 	suffered harm as 	a result of
the conduct 	found herein to be 	in violation of 	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.
- 	--=--=----=----=----

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
U N I V E R S I T Y 	COUNCIL-AMERICAN
FEDERATION 	OF 	T E A C H E R S ,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF 	C A L I F O R N I A ,
Respondent.
Unfair 	Practice
Case 	N o s . 	SF-CE-272-H
LA-CE-235-H
SUPPLEMENTAL 	P R O P O S E D
DECISION 	A N D 	O R D E R
TRANSFERRING 	P R O C E E D I N G
TO 	THE 	BOARD
(11/26/90)
A p p e a r a n c e s ; 	Leonard, 	C a r d e r , 	N a t h a n , 	Zuckerman, 	R o s s , 	C h i n &
Remar 	by 	William 	H. 	C a r d e r , 	A t t o r n e y , 	for 	University 	C o u n c i l -
A m e r i c a n 	Federation 	of 	T e a c h e r s ; 	Marcia 	J. 	Canning, 	University
C o u n s e l , 	for 	The 	Regents 	of 	the 	University 	of 	California.
Before 	Douglas 	G a l l o p , 	Administrative 	Law 	Judge.
INTRODUCTION
On 	July 	3, 	1990, 	the 	Public 	Employment 	Relations 	Board
(hereinafter 	PERB 	or 	Board) 	issued 	its 	Decision 	in 	the 	a b o v e -
captioned 	matter,1 finding 	that 	The 	Regents 	of 	the 	University 	of
C a l i f o r n i a 	(hereinafter 	Respondent) 	violated 	section 	3 5 7 1 ( a ) , 	(b)
and 	(c) 	of 	the 	Higher 	Education 	Employer-Employee 	Relations 	A c t
(HEERA) 	in 	Case 	N o . 	SF-CE-272-H. 	Respondent 	violated 	the 	HEERA
by 	repudiating 	provisions 	in A r t i c l e 	VII 	of 	its 	memorandum 	of
understanding 	(MOU) 	w i t h 	University 	Council-American 	F e d e r a t i o n
of 	Teachers 	(Charging 	Party) 	concerning 	three-year 	a p p o i n t m e n t s
for 	lecturers 	w i t h 	more 	than 	six 	years 	of 	employment 	at
R e s p o n d e n t ' s 	Santa 	C r u z , 	California 	campus. 	The 	Board 	remanded
C a s e 	N o . 	L A - C E - 2 3 5 - H , 	which 	alleged 	a 	similar 	violation 	at
1 PERB 	Decision N o . 	826-H. This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
-------~!
~

Respondent's Los Angeles, 	California campus 	(UCLA), 	for further
hearing on the 	issue 	of 	timeliness, 	and directed 	the undersigned
to prepare a 	supplemental proposed decision on that issue, 	to be
transferred 	to 	the 	Board 	for 	further action.
. '" .A
Upon notice to the parties, 	the record was 	reopened on
September 6, 	1990, 	and further evidence was presented. 	The
parties 	filed post-hearing briefs, 	and the matter was 	submitted
for decision on November 	15, 	1990.
FACTS
The Charging Party recalled 	Susan Griffin, 	a 	lecturer 	in the
UCLA writing program and 	currently 	its 	president, 	and 	called
Cynthia Tuell, 	a writing program lecturer, 	as witnesses.
Respondent recalled Sandra 	Rich, 	assistant 	labor relations
manager. 	The parties 	also 	introduced documentary evidence 	to
corroborate the witnesses' 	testimony.
As 	set 	forth 	in the Proposed Decision 	for these 	cases,
issued on February 24, 	1989, 	Respondent took adverse action on
October 5, 	1989, when its provost, 	Raymond L. 	Orbach, 	elected to
reduce 	the 	long-term 	appointments 	for 	the 	UCLA writing program 	to
eight full time equivalents 	(FTE). 	The reduction just referred
to was 	from the 	17-FTE 	recommendation of Charles 	Linwood Batten,
then the program's director. 	It has been established, that this
decision was 	based on 	several 	factors 	not 	contained 	in the MOU,
including 	college-wide 	financial 	considerations, 	college-wide
N	
2

ladder 	faculty hiring goals,2N 	the desire to 	save three-year
appointments 	for 	lecturers 	not yet 	eligible under the MOU 	and 	to
infuse 	"new blood" 	into the program through new hires.
By letter dated October 5, 	1987,3 Herbert Morris, 	the
college dean, 	informed Batten of the reduction in his 	request 	for
three-year FTEs. 	The letter, 	inter alia, 	stated:
The 	Provost and 	I 	have 	reviewed your request
carefully, 	taking 	into account the
programmatic 	need 	for 	these positions,
anticipating other needs 	for 	ladder and
temporary FTE, 	and considering College
resources, 	priorities and goals, 	as well as
the 	appropriate balance of 	ladder and
temporary 	faculty within the 	College.
Rich 	credibly testified that on October 	8, 	Marde Gregory,
then president 	of 	the Charging Party's 	UCLA local, 	called her to
discuss Morris' 	letter of October 5 	regarding the writing
program, 	and a 	similar 	letter denying any three-year FTE
allocations 	for an English department course. 	Gregory, 	while not
stating the 	extent of her knowledge of 	the 	letters, 	objected to
Morris' 	use of the term, 	"programmatic need," 	and 	stated 	she knew
the writing program needed more than eight FTEs. 	Gregory 	said
that 	unless 	Respondent was 	going to 	cut 	its 	overall 	FTE
allocation to the program, 	Respondent was 	in violation of 	the
MOU. 	Gregory 	further claimed that 	it was 	impermissible 	for
Respondent 	to 	replace 	lecturers 	eligible 	for 	three-year
zLadder 	faculty 	rarely 	teach writing program 	courses.
3A11 	dates 	hereinafter refer to 	1987 	unless 	otherwise
indicated.
w3

appointments with one-year appointees. 	She 	noted that 	the MOU's
requirements 	for three-year appointments 	were 	rigorous 	enough 	to
limit 	the 	number thereof without 	imposing what 	she 	saw as 	a
quota. 	Gregory also protested the 	failure 	to grant 	any three-
year FTEs 	for the English department course. 	There 	is 	no
evidence 	that 	Rich 	gave 	any reasons 	for Respondent's 	actions
during 	this 	conversation.4
Rich 	testified 	that 	Gregory 	expressed 	an 	intention 	to 	file
grievances, 	and concern because Morris was unavailable. 	She
believes 	Gregory 	stated that Griffin would be 	a 	representative 	in
the 	grievances. 	Gregory told Rich the Association was 	"looking
at" 	filing an unfair practice 	charge because Morris 	had 	cited
"programmatic 	need" 	in the 	allocation letters.
r - . . .
Rich 	also 	testified 	that 	she 	and 	Gregory had previously
engaged 	in 	ongoing 	discussions 	concerning 	Respondent's
interpretation of 	the term, 	"instructional 	need." 	The 	record 	in
the 	original proceeding reflects 	that Gregory, 	during 	the 	first
year of 	the MOU, 	had protested Respondent's 	contention that 	it
could 	consider 	"programmatic 	need," 	including 	college-wide
resource and 	faculty hiring goals, 	in determining 	instructional
need 	for three-year appointments. 	Grievances 	filed 	concerning
those 	first year allocations were 	resolved when the Association
realized that, 	in fact, 	permissible considerations 	such as 	the
4While 	Rich's 	testimony 	concerning Gregory's 	statements 	is
hearsay, 	the 	statements are received as 	admissions 	against
interest by 	an officer and 	agent 	of 	the Charging 	Party.
4

use 	of 	ladder-rank 	faculty 	had 	determined 	the 	appointment
decisions.
The 	original 	record 	also 	reflects 	that 	Respondent 	initially
proposed 	including programmatic 	need 	as 	a 	factor 	in determining
three-year appointments. 	The Charging Party, 	and Gregory 	in
particular, 	strongly opposed this 	as 	a consideration. 	Gregory
understood programmatic 	need 	to 	be 	a wider 	concept 	than
instructional 	need, 	and 	included 	such 	factors 	as 	college-wide
resource planning. 	At the Association's 	demand, 	the term was
dropped 	from the appointments 	article, 	a major concession 	in
Respondent's 	view.
Also on October 	8, 	Griffin, 	along with other writing program
lecturers, 	attended a meeting called by Batten which 	lasted
several hours. 	Clearly, 	the 	subject of the meeting was known to
those in attendance because, 	almost at the outset, 	the lecturers
informed Batten that 	it would 	constitute 	a 	step one meeting 	for
any grievance to be 	filed. 	According to Griffin, 	Batten read
unspecified portions of Morris' 	October 5 	letter. 	Batten told
them that Morris had given, 	as 	reasons 	for the reduction in
three-year appointments, 	"programmatic 	need," 	the balance between
ladder and temporary 	faculty, 	and possibly other 	factors.
Minutes 	of the meeting 	state that Batten, 	contradicting Orbach's
position, 	told the group that 	it was 	"totally inappropriate" 	to
consider a 	relationship between tenured 	(ladder) 	faculty 	and 	the
needs 	of 	the writing program. 	When asked, 	Batten said that
Morris 	had 	not 	defined the 	term 	"programmatic 	need." 	According

to the minutes, 	Batten could only guess 	that 	"programmatic 	need"
was 	some Platonic, 	ideal mix of permanent and semi-permanent
positions 	in the program. 	Griffin did not attend negotiations
leading to the MOU, 	nor was 	she 	involved in the prior disputes
concerning the term, 	"programmatic 	need."
Batten was 	also 	questioned 	as 	to the 	relevance of 	ladder
faculty, 	since they rarely taught 	in the writing program. 	He
replied that he 	could not 	see the relationship. 	Apparently, 	the
subject of one-year 	lecturers 	also came up, 	since Griffin
testified 	that 	Batten was 	asked what 	the 	administration thought
the 	ideal 	balance between one 	and three-year 	lecturers 	should be.
Batten was unable to answer this 	inquiry. 	The 	lecturers 	also
asked Batten 	if he 	saw a distinction 	in 	instructional 	need
between one and three-year 	lecturers, 	and he 	replied that he
could not. 	There was 	extensive discussion as to the review
process 	for three-year appointment 	candidates. 	Batten denied
that 	any ratio 	of 	one to three-year appointments 	had been
established.5
Griffin testified that as 	of October 	8, 	she believed
Respondent 	had allocated 	the 	same 	number 	of 	FTE 	positions 	for 	the
entire program as 	the year before. 	Batten was purportedly unable
to confirm this 	at the meeting; 	however, 	Respondent provided
confirmation within a week thereafter.
5Unknown to Batten, 	Orbach did, 	in fact, 	desire that 75
percent 	of 	the writing department 	courses 	be 	taught 	by 	lecturers
on one-year appointments. 	This 	ratio does 	not appear to have
been communicated as 	the goal 	for achieving 	"balance" 	in the
department.
6

Batten, 	in his 	testimony 	from the original proceeding
herein, 	demonstrated his opposition to, 	and initial 	lack of
understanding of 	the reasons 	for the 	reduction in FTE 	for three-
year appointments, 	as 	expressed in Morris' 	letter of October 5.
On October 	13, 	he met with Orbach to discuss the allocation, 	and
Orbach 	explained the reasons 	for the reduction 	in detail. 	There
is 	no 	evidence that 	Batten related this 	to Griffin or Gregory.
Batten also discussed the 	issue with Morris 	and Carol 	P. 	Hartzog,
vice provost 	for academic 	administration. 	Batten, 	in attempting
to 	increase the allocation, 	cited 	low morale and the difficulty
in replacing 	experienced 	lecturers.
Morris, 	in his prior testimony, 	stated he was 	impressed with
these 	arguments 	and 	requested 	that 	the 	three-year allocation be
increased from 8 	to 	12. 	Orbach rejected the request. 	There 	is
no 	evidence that any of 	the Charging Party's 	representatives were
aware 	that Morris 	had 	sought an 	increase 	in the 	allocation.
On November 	2, 	Griffin attended a 	step 	two grievance meeting
with Morris, 	Hartzog and the affected 	lecturer regarding the
English department 	FTE 	allocation. 	Morris 	stated that 	the
allocation of 	three-year positions was 	in its 	beginning 	stages,
and perhaps 	the 	lecturer 	should 	file 	an appeal of 	non-
reappointment 	rather than a grievance. 	Morris 	anticipated the
letters 	of 	non-reappointment would be 	sent 	in about 	two weeks.
Griffin and the 	lecturer questioned 	the 	viability 	of 	such 	an
appeal 	under the MOU.
7

The 	lecturer objected 	to 	the 	use 	of 	programmatic 	need 	in the
appointment decision, 	and 	stated that 	inasmuch as 	there was
clearly an instructional 	need 	for her course, 	Respondent was
violating the MOU. 	Morris 	replied that 	one-year appointments
offered 	Respondent 	"flexibility," 	and 	asked what provision
of 	the MOU had been violated. 	When the 	lecturer and Griffin
cited Article VII, 	Morris 	asked whether they 	interpreted Article
VII 	as 	requiring three-year appointments. 	It does 	not appear
that Morris, 	at the time, 	took a position on this 	issue.
The 	discussion then turned 	to 	the 	lecturer's 	qualifications
and experience 	in teaching the 	courses. 	Morris was 	impressed
with 	arguments 	that 	she 	should continue 	teaching them, 	and 	stated
he would 	take 	the matter under 	consideration. 	Respondent
subsequently offered the 	lecturer a 	three-year appointment, 	but
for only one of her three 	courses. 	The offer was 	rejected.
Griffin did 	not 	attend the 	step 	two writing program
grievance meeting, 	which took place on November 	3, 	because 	she
had 	attended 	the 	English department 	meeting on November 	2.
Instead, 	four lecturers, 	including Tuell, 	met with Morris and
Hartzog. 	Tuell 	had 	"volunteered" 	to work on the writing program
grievance, 	and to act as 	spokesperson at the meeting. 	Tuell did
not hold any office with the Charging Party, 	or its 	UCLA local,
and was 	not generally a designated grievance 	representative. 	In
addition to Tuell's 	testimony, 	the testimony of Hartzog and
Morris 	from the original hearing, 	along with Hartzog's 	notes, 	are
8

considered 	in determining what 	took place. 	(Tuell's 	recall 	of
the 	meeting was 	admittedly poor.)
Tuell 	contended there was 	a 	continuing 	instructional 	need
for 	the writing program courses, 	and asked what 	Respondent meant
by programmatic 	need. 	Morris 	responded that the determination of
need did 	not 	stand alone 	on whether 	a 	course 	had been taught 	for
a 	long time. 	Respondent had to account 	for 	changed
circumstances, 	for example, 	new programs. 	Due to the
unpredictability of 	future 	funding, 	it was 	difficult to commit to
continuing existing courses 	indefinitely. 	As 	an example, 	Morris
cited a 	language course 	(not 	in the writing program) 	that
consistently had a 	low enrollment. 	Thus, 	Respondent needed to
have 	the 	option to 	shift 	resources 	from program to program.
9
In response, 	Tuell asked Morris 	if the writing program
courses were going to be 	cut, 	and Morris 	said he did not think
so. 	Morris went on to defend the allocation on grounds 	of
"fairness," 	e.g., 	a desire to have three-year appointments
available 	in the 	future 	for those who had not yet 	taught 	for 	six
years. 	He also 	stated Respondent's 	"new blood" 	rationale, 	e.g.,
the desire to hire new lecturers.
Tuell 	argued that 	normal 	turnover would provide 	Respondent
the opportunity to 	satisfy its 	need 	for new lecturers. 	Morris,
however, 	maintained that by granting three-year appointments,
6The 	above 	facts 	are 	from Hartzog's 	notes 	and testimony,
which are 	credited. 	Tuell 	testified 	that Morris 	failed to
clearly 	define 	programmatic 	need 	and 	he 	appeared 	uncertain of
what 	the 	concept meant.
9
6

with the possibility of 	indefinite 	renewal, 	the remaining
positions 	in the program would become 	less 	attractive. 	Tuell
questioned Morris 	concerning the 	balance 	of 	ladder and 	temporary-
faculty as 	a 	consideration. 	After Morris 	gave an explanation,
Hartzog's 	notes 	state 	she 	clarified 	it by 	stating 	that 	Respondent
was 	referring to 	the 	balance between the 	ladder 	and temporary
faculty on a 	college-wide basis. 	Hartzog also 	said that 	she had
discussed this 	issue with Gregory. 	No date or context 	is 	set
forth 	in the notes 	regarding 	such discussion(s) 	with Gregory.
After listening to the lecturers' 	arguments, 	including
assertions 	concerning 	the 	difficulty Respondent 	might 	have 	in
filling one-year appointments 	and 	claims 	that 	excellent 	staff
members were 	seeking employment 	elsewhere, 	Morris 	said that there
were 	a number of 	important 	considerations 	involved, 	among those
the points 	raised by the 	lecturers. 	Morris promised 	to 	think
further about 	the 	allocation and 	stated that he would 	contact
Orbach. 	At the meeting, 	Morris made 	it clear that the 	final
allocation decision was Orbach's. 	Tuell 	responded that 	a written
grievance would be 	filed.
The MOU permitted only procedural 	grievances 	to 	be 	filed
concerning Article VII. 	The MOU's 	grievance article generally
allowed grievances 	to be 	filed 	either by unit members 	or the
Charging Party. 	In grievances 	filed by unit members, 	the MOU
permitted 	representation by 	Charging 	Party.
On November 4, 	Tuell discussed the November 	3 	meeting with
Griffin, 	summarizing what Morris 	and Hartzog had 	said. 	Griffin
10

was 	told 	that while Morris 	had 	agreed 	to 	consider the 	arguments
raised by the 	lecturers, 	it did not appear 	likely the three-year
allocation would 	change.
Griffin, 	on November 4, 	prepared and 	signed a written
grievance 	concerning the writing program. 	The grievant was 	set
forth 	as 	"Writing Program Lecturers." 7 It 	is 	noted that 	the
writing program grievance 	at 	the 	Santa 	Cruz 	campus 	listed 	the
Charging 	Party as 	the 	grievant. 	The 	UCLA English department
grievance 	apparently 	listed the affected 	lecturer, 	inasmuch as
Respondent's 	correspondence referred to 	it 	as 	the 	lecturer's
grievance, 	and Griffin as 	the Charging Party's representative.
The writing program 	grievance 	stated 	that Respondent 	had
violated Article VII 	of the 	MOU by 	reducing the 	FTE 	allocation
for three-year appointments, 	even though the FTE allocation for
the 	entire program remained the 	same. 	Thus, 	some lecturers would
be denied appointments 	regardless 	of 	their qualifications, 	even
though 	instructional 	need remained the 	same. 	Tuell 	testified
that 	she 	felt there was 	a 	clear violation of the MOU, 	because
Respondent was 	not 	following the 	contractual 	definition of
"instructional 	need."
The 	parties 	conducted 	a 	step 	three writing program 	grievance
meeting on December 9. 	Griffin, 	who was 	in attendance, 	contended
that 	there was 	sufficient 	instructional 	need 	to warrant 	Batten's
FTE 	request 	for 	17 	three-year FTEs. 	She accused Respondent of
7Griffin, 	at that time, 	was also a lecturer in the writing
department.
11

establishing a 	quota 	system 	in violation of 	the MOU, 	even through
she and Morris 	agreed that 	such quotas were 	"illegal." 	Griffin
argued that 	considering the 	need 	for 	"new blood" 	in the program
was 	equally violative 	of 	the 	contract 	in that 	said consideration
was 	not provided 	for under 	instructional 	need, 	and 	claimed that
by hiring too many new lecturers, 	the quality of the program
would 	suffer. 	Griffin contended that 	since 	the 	criteria 	set
forth 	in Article VII 	had been 	satisfied, 	Respondent was 	obligated
to provide 	three-year appointments 	to 	all post 	six-year 	lecturers
found to be 	excellent 	in their performance.
Rich responded that, 	based on the parties' 	collective
bargaining history, 	the definition of 	instructional need
encompassed all 	aspects 	of 	academic planning, 	including the
balance of 	one to three-year appointments, 	balance between ladder
and temporary faculty, 	turnover, 	budgetary considerations,
projected 	changes 	in 	enrollment 	and 	the 	need 	to 	be 	flexible 	in
maintaining resources 	for 	future 	needs. 	Rich 	stated that
Respondent did not, 	by the MOU, 	commit to the establishment of
any three-year appointments, 	but had only 	set forth the
conditions 	under which 	such appointments 	can be made.
Rich 	again denied the 	existence 	of 	any 	established 	ratio
between one and three-year appointments. 	Hartzog added 	some
comments 	as well. 	The grievance was denied, 	thus 	ending the
contractual grievance procedure 	for this dispute. 	Griffin
testified 	that 	Rich's 	remarks 	constituted 	the 	first 	time 	that
Respondent 	had 	disputed 	the 	Charging 	Party's 	interpretation 	of
12

the term, 	"instructional need," 	and that Respondent never
confirmed 	its 	desire 	for a 	ratio of 	one 	to three-year 	lecturer
appointments.8
ISSUE
Did the Charging Party 	file the 	charge 	in Case No.
LA-CE-235-H 	in a 	timely manner?
ANALYSIS 	AND 	CONCLUSIONS
In its July 	3, 	1990 	Decision,9 the Board stated:
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. 	. 	. 	. 	In the present case, the date
of 	notice would be the date when the
[Charging Party] 	first learned of
[Respondent's] 	rationale for its allocation
of Full Time Equivalents 	(FTEs) 	for three-
year appointments 	on the UCLA campus.
(Footnote 	omitted.)
The Charging Party contends 	that 	it did not 	learn
Respondent's rationale until, 	at the earliest, 	December 9, 	when
,Rich 	explained 	Respondent's 	interpretation of 	instructional 	need,
as 	set 	forth 	in Article VII 	of 	the MOU. 	The Charging Party
further contends 	that 	even 	if 	knowledge was 	obtained 	earlier,
Respondent waivered 	in its 	intent to 	implement the 	change 	in
policy. 	The 	charge 	in Case No. 	LA-CE-235-H was 	filed on May 	4,
1988. 	Hence, 	the statute began to run on November 4, 	1987.
8 It appears 	that the 	first notice of a three to one ratio
was when Orbach testified 	in the 	original 	hearing 	in this 	matter.
9(1990) 	PERB Decision No. 	826-H, 	at page 7.
13

Saddleback Valley Unified School 	District 	(1985) 	PERB Decision
No. 558.
It 	is undisputed that Gregory, 	as 	an officer of the Charging
Party's 	local, 	was 	an agent whose conduct would bind the Charging
Party. 	The 	PERB applies 	common law agency principals 	to 	its
public 	sector decisions. 	Los Angeles 	Community College 	District
(1982) 	PERB Decision No. 	252. 	Decisions of the National Labor
Relations 	Board have 	found 	grievance 	committee members 	acting
within the 	scope 	of 	their grievance processing responsibilities
to be agents 	of the union. 	Graphic Communications 	International
Union. 	Local 	388. 	a/w Graphic Communications 	International Union.
District Council No. 	2 	(Georgia Pacific Corp.) 	(1988) 	287 NLRB 	:
No. 	107 	[128 LRRM 1176]; 	International Union of District 50.
Allied 	and Technical 	Workers 	of 	the 	United 	States 	and Canada 	and
its 	Local 	15440 	(Dow Chemical Company - 	Rocky Flats 	Division)
(1971) 	187 NLRB 968 	[76 LRRM 1217].
Although Griffin was 	a writing program lecturer, 	she had
volunteered to act as 	the Charging Party's 	grievance
representative. 	Her role 	extended beyond 	the writing program
grievance, 	and 	she appeared as 	the Charging Party's
representative 	for grievances 	in other departments. 	She was
understood by 	Respondent 	to 	be 	a 	grievance 	representative 	of 	the
Charging Party, 	and in fact 	she acted in 	such capacity.
Accordingly, 	she 	is 	found to be an agent of the Charging Party
for grievance purposes, 	and her knowledge of 	the rationale 	for
Respondent's 	actions 	is 	imputed to 	the Charging Party.
14

Agent 	status 	is 	not 	found 	for Tuell 	or the 	other 	lecturers
who 	attended the November 	3 	meeting with Morris 	and Harzog.
Since 	the 	grievance was 	filed 	in the name of 	the writing program
lecturers, 	their appearance on November 3 was as grievants, 	not
as 	Charging Party representatives, 	absent 	facts 	establishing 	such
status. 	The 	facts 	show that Griffin, 	having attended a 	step two
grievance 	for a different department the previous 	day, 	chose 	not
to 	attend on November 3. 	Instead, 	Tuell 	and three other
lecturers 	appeared at the meeting, 	with Tuell as 	their
spokesperson. 	In the absence of 	sufficient 	evidence to 	show
either that 	Tuell was 	designated as 	a 	grievance 	representative 	of
the Charging Party, 	or that this was 	communicated to Respondent,
it 	is 	concluded she was 	spokesperson for the grievants, 	and not
the Charging Party. 	Accordingly, 	the 	information communicated to
the 	four 	lecturers 	on November 	3 will 	not be 	imputed to the
Charging Party, 	at 	least as 	of the time the 	statements were made
to them.
Respondent 	urges 	that 	a 	contrary 	result 	is 	mandated based 	on
purported 	admissions 	made by the Charging Party. 	Respondent
first quotes 	the charge in Case No. 	LA-CE-235-H, 	which it
construes 	as 	an admission of knowledge on November 3, 	1987. 	The
charge, 	however, 	alleges that Morris, 	on November 3, 	conducted "a
meeting with members 	of 	the Writing 	Program 	faculty" 	(emphasis
added), 	in which Morris made various 	statements explaining the
reduced allocation of 	three-year appointments. 	The 	charge
nowhere admits 	that 	any of 	those unit members were 	officers 	or
15

agents 	of 	the Charging Party, 	or that the Charging Party had
knowledge 	of 	the violation on November 	3.
Respondent 	further 	cites 	the 	following 	statement 	from the
Charging Party's 	brief 	in 	support of 	its 	exceptions 	to the
Proposed 	Decision 	in this 	case:
Contrary to the 	findings 	of 	the
Administrative Law Judge . 	. 	. Griffin
further 	testified 	that 	Lisa 	Gerrard 	and
Jeanne Gunner, 	who attended the November 	3,
1987, 	Step II hearing on the Writing Program
Grievance, 	were also acting as union
representatives.
In fact, 	Griffin's prior testimony, 	when asked to name the
grievants 	in the allocation disputes, 	was 	"the representatives
for the Writing Programs" 	were herself, 	Gerrard and Gunner.
That counsel, 	at one point in this proceeding, 	somehow felt
it would be 	advantageous 	to claim a presence by the Charging
Party 	at 	the November 	3 	meeting based on Griffin's 	testimony does
not 	require 	a 	finding which 	is 	not 	supported by the record.
Thus, 	Griffin did not testify that 	Gerrard or Gunner were 	acting
as 	representatives 	of the Charging Party, 	and counsel's
contention that 	she did 	so testify will not be adopted, 	even if
contrary to interest. 	Furthermore, 	if the 	statement in brief and
Griffin's 	earlier 	testimony were 	to 	be 	accorded 	some weight 	in
determining agent 	status, 	it would be 	concluded 	that based on the
entire record, 	the 	evidence 	fails 	to 	establish those unit members
as agents. 	Finally, 	Griffin's 	failure to mention Teull as a
representative 	for the writing program will 	not 	be 	interpretated
as 	an admission that 	she 	instead was 	a representative of 	the
16
·,

Charging Party, 	particularly 	in light of 	the additional 	evidence
presented on the 	issue of Tuell's 	status.10
Turning to Gregory, 	with respect to her knowledge of
Respondent's 	rationale 	for 	reducing 	the 	long-term appointments,
the 	only 	definitive 	evidence 	consists 	of 	her 	conversation with
Rich on October 8. 	Based on Rich's 	testimony, 	the only program-
specific 	information 	concerning 	the 	rationale possessed by
Gregory was 	her knowledge of 	an unspecified portion of Morris'
October 5 	letter to Batten. 	Certainly, 	Gregory made 	some
educated 	guesses 	in her conversation with Rich, 	based on her
beliefs 	as 	to the program-wide FTE allocation, 	her prior disputes
with 	Respondent 	and her knowledge 	of 	the 	collective bargaining
history, 	but in the final analysis her comments were, 	in fact,
educated 	guesses.
While the use of the term, 	"programmatic need," 	in the
letters 	would understandably raise 	a 	red 	flag 	for Gregory,
similar alarms 	had been raised during the 	first year of 	the MOU,
only 	to prove 	false 	upon 	further 	explanation by Respondent.
Furthermore, 	that term has been given many interpretations, 	and
consists 	of 	several 	components.
Similarly, 	assuming Gregory knew the 	remaining contents 	of
Morris' 	letters, 	his vague references to 	"other needs" 	for ladder
and temporary FTE, 	college resources, 	priorities and goals, 	and
the 	balance 	between 	ladder 	and 	temporary 	faculty within the
10Griffin, 	in her testimony, 	also failed to note that Bob
Cullen, 	another lecturer, 	was present at the meeting.
17

college were 	insufficient 	to 	explain Respondent's 	rationale.
This 	is particularly true 	since, 	in the absence of 	ladder faculty
in the writing program, 	the 	statements 	required clarification.11
In 	like manner, 	because Gregory 	surmised Respondent was 	going to
replace 	three-year with one-year appointees, 	and accused
Respondent of 	imposing a 	quota does 	not 	establish that 	Respondent
had 	informed 	Gregory of 	this.
Respondent 	clearly may 	not rely 	on Batten's 	statements 	of
October 	8 	to 	establish knowledge of 	its 	rationale. 	To the
contrary, 	his 	conduct of 	the meeting confused more than clarified
the issues, 	and the responses, 	at times, 	were in direct conflict
with 	those 	expressed by Batten's 	superiors.
The 	information obtained by Griffin at 	the 	November 	2
English department meeting, 	in addition to being given in a
substantially different context, 	was 	also 	insufficient to give
adequate 	notice of 	the rationale 	for reducing three-year FTEs 	in
the writing program. 	Indeed, 	Morris 	confused the 	issue by
.stating that 	the allocation of 	three-year positions was 	in 	its
"beginning 	stages" 	and 	suggesting that 	instead of pursuing a
grievance, 	appeals 	should be 	filed 	for non-reappointments. 	The
only definition by Morris 	of 	"programmatic 	need" 	at 	that meeting
was 	the vague 	concept of 	"flexibility." 	There 	is 	no 	evidence
that Morris 	discussed the 	issues 	of 	"fairness," 	"new blood,"
college-wide resources, 	college-wide 	ladder faculty hiring goals,
n The 	reference 	to discussions 	on this 	topic 	in Harzog's
notes, 	absent dates or contexts, 	is 	simply too vague to establish
notice.
18

balance between one 	and three-year 	lecturers 	or 	Respondent's
interpretation of 	"instructional 	need," 	and 	it 	is 	unreasonable 	to
expect that Griffin, 	or any other representative, 	would have been
alerted 	to 	these 	factors 	based on what Morris 	said.12
Without deciding whether Morris' 	and Hartzog's 	statements 	on
November 	3 	were 	otherwise 	sufficient 	to place 	the Charging Party
on notice of 	Respondent's 	rationale, 	it has 	been concluded that
the 	remarks were 	not made to 	an officer or agent 	of 	the Charging
Party. 	Assuming the 	statements were 	sufficient, 	and Tuell
related them 	in 	sufficient detail 	to Griffin, 	said recitation was
not made until November 4, 	within the 	limitations period.13
Based on the foregoing, 	it is concluded that, 	at the
earliest, 	the Charging Party 	learned of 	Respondent's 	rationale
for reducing the three-year FTE allocation on November 4, 	1987,
and therefore, 	the charge 	in Case No. 	LA-CE-235-H was 	timely
filed. 	In light of this 	conclusion, 	it is unnecessary to address
the Charging Party's 	alternative argument, 	that Respondent
waivered 	in 	its 	intent 	to 	implement the decision.
ORDER
IT 	IS 	HEREBY ORDERED 	that 	the herein proceeding be
transferred 	to 	the 	Board 	for 	further 	action.
12This 	is 	not 	to 	say that 	the Board's 	standard necessarily
requires 	that 	each and 	every reason be 	expressed 	in detail;
however, 	the above-listed reasons were 	substantial 	factors 	in the
allocation decision 	for the writing program.
13As with Gregory, 	Griffin's belief that the MOU had been
violated, 	based on the 	facts 	in her possession, 	does not 	satisfy
the 	Board's 	requirement that 	the 	Charging 	Party knew the
rationale 	for Respondent's 	conduct.
19

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.)
on the 	last day 	set 	for filing 	"... 	. 	or when sent by telegraph
'or certified or Express United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	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 26, 	1990
Douglas Gallop
Administrative Law Judge
20