Regents of the University of California (University of California-American Federation of Teachers) (PERB 0922H)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
THE 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Charging 	Party,
v.
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF 	TEACHERS,
Respondent.
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) 	Case No. 	SF-CO-19-H
PERB 	Decision No. 	922-H
February 	7, 	1992
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Appearances: 	Marcia J. 	Canning, 	Attorney, 	for The Regents of
the University of California; 	Leonard, 	Carder, 	Nathan, 	Zuckerman,
Ross, 	Chin & Remar by William H. 	Carder, 	Attorney, 	for University
Council-American Federation of 	Teachers.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by the Regents 	of 	the
University 	of 	California 	(University) 	to 	an administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached hereto) 	dismissing a
charge 	that 	the 	University Council-American Federation 	of
Teachers 	(Federation) 	violated 	section 3571.l(c) 	of the Higher
Education Employer-Employee 	Relations Act 	(HEERA).1 The
University 	alleges 	that 	the 	Federation violated 	HEERA when
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq,
Section 3571.1 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(c) 	Refuse or fail to engage in meeting
and 	conferring with 	the 	higher 	education
employer.

it 	unilaterally 	rescinded 	its 	settlement 	agreement with 	the
University, 	which would have affected three PERB 	cases: 	SF-CE-
272-H, 	LA-CE-235-H 	and SF-CE-287-H.2 The 	Board has 	reviewed 	the
entire record in this 	case, 	and 	finds 	the ALJ's 	findings 	of 	fact
and 	conclusions 	of 	law to be 	free of prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
On appeal, 	the University filed numerous 	exceptions 	to the
proposed decision. 	Most 	of 	these 	exceptions 	involve 	the ALJ's
findings 	of 	fact 	and 	reliance 	on Lake 	Elsinore 	School 	District
(1986) 	PERB Decision No. 	603 	(Lake Elsinore). 	In support of its
exceptions, 	the 	University argues 	that 	the ALJ 	erroneously 	failed
to 	find 	that 	the 	Federation violated 	HEERA by unilaterally
rescinding 	its 	settlement 	agreement with 	the 	University.
DISCUSSION
Under HEERA section 	3563.2(b),3 the Board has 	no authority
to 	enforce 	agreements 	between parties 	and 	cannot 	issue 	a
complaint 	on any 	charge based on an alleged violation of 	an 	,
agreement 	unless 	the 	violation would 	also 	constitute 	an unfair
practice 	under 	HEERA.
2The 	Board notes 	that Case 	Nos. 	SF-CE-272-H and LA-CE-235-H
were 	decided 	in PERB 	Decision No. 	826-H and PERB 	Decision
No. 	907-H 	(review den.). 	Case No. 	SF-CE-287-H was resolved by
settlement between the parties.
(b) 	The Board 	shall 	not have authority to
enforce agreements between the parties, 	and
shall 	not 	issue 	a 	complaint on any charge
based 	on alleged violation of 	such 	an
agreement 	that would 	not 	also 	constitute
an unfair practice under this 	chapter.
2
'Section 3563.2 	states, 	in pertinent part:
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To 	state a prima 	facie 	case of a unilateral 	change, 	the
University was 	required to 	show that 	the Federation's 	breach 	of
the 	settlement 	agreement was 	not merely 	an 	isolated 	breach 	of 	the
contract, 	but amounted to a change of policy 	(i.e., 	has a
generalized 	effect 	or 	continuing 	impact 	upon bargaining unit
members' 	terms and conditions of employment). 	(Grant Joint Union
High School District 	(1982) 	PERB Decision No. 	196.)
The 	University 	alleges 	that 	the 	Federation's 	actions
amounted 	to 	a 	change 	in policy when 	it repudiated 	the 	settlement
agreement. 	It 	is 	the University's position that the Federation's
termination of 	the 	agreement 	had the 	effect 	of 	changing 	the
criteria 	for the appointment of 	long-term lecturers, 	and that
the 	newly negotiated definition of 	instructional 	need had 	a
generalized effect 	in the appointment process. 	However, 	we 	agree
with 	the ALJ 	that 	the 	Federation's 	action 	in terminating 	the
settlement 	Agreement 	had 	no 	effect 	on 	existing 	terms 	and
conditions 	of 	employment. 	The only obligation imposed upon the
Federation by 	the 	settlement 	agreement was 	to withdraw pending
PERB 	charges 	and 	to 	refrain 	from 	filing 	further 	charges 	or
grievances 	regarding Article VII 	of 	the 	memorandum of
understanding. 	The ALJ properly found that the University, 	as
the employer of bargaining unit members, 	continued to 	exercise
control 	over their reappointment 	both 	before 	and 	after 	the
termination of 	the 	settlement 	agreement.
Finally, 	we agree with the ALJ's 	application of
Lake Elsinore to this 	case. 	In Lake Elsinore the Board concluded
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that under the Educational 	Employment Relations Act, 	an
employer's 	demand 	that 	an 	employee 	organization withdraw an
unfair practice 	charge 	is 	not 	a mandatory 	subject 	of bargaining.
We 	see no 	reason for a different 	result under HEERA. 	As 	the
Federation's 	refusal 	to withdraw unfair practice 	charges 	is 	not 	a
mandatory 	subject of bargaining, 	the 	University has 	failed to
state a prima 	facie violation of 	HEERA.
With 	regard to the 	University's 	numerous 	exceptions 	to
the ALJ's 	findings 	of 	fact, 	the Board concludes 	that the ALJ's
findings 	of 	fact 	are 	supported by the 	evidence 	on the 	record
as 	a whole. 	Accordingly, 	these exceptions 	are without merit.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SF-CO-19-H 	is hereby DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
THE 	REGENTS 	OF 	THE 	UNIVERSITY 	OF
C A L I F O R N I A ,
Charging 	Party,
v.
U N I V E R S I T Y 	COUNCIL-AMERICAN
F E D E R A T I O N 	OF 	T E A C H E R S ,
R e s p o n d e n t .
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Unfair 	Practice
Case N o . 	SF-CO-19-H
PROPOSED 	DECISION
(1/31/91)
A p p e a r a n c e s : 	Marcia J. 	Canning, 	University C o u n s e l , 	for 	the
R e g e n t s 	of 	the 	University 	of 	California; 	Leonard, 	Carder 	&
Zuckerman 	by 	William 	H. 	Carder 	for 	the 	University 	C o u n c i l -
A m e r i c a n 	F e d e r a t i o n 	of 	T e a c h e r s .
B e f o r e 	Ronald 	E. 	B l u b a u g h , 	A d m i n i s t r a t i v e 	Law Judge.
PROCEDURAL 	HISTORY
The 	University 	of 	California 	(University) 	contends 	h e r e 	t h a t
a 	u n i o n 	representing 	instructors 	failed 	to 	negotiate 	in 	good
faith 	w h e n 	it 	refused 	to 	carry 	out 	the 	terms 	of 	a 	settlement
a g r e e m e n t . 	Under 	the 	a g r e e m e n t , 	the 	union was 	obligated 	to
w i t h d r a w 	certain 	other unfair 	practice 	c h a r g e s , 	but 	the 	u n i o n
refused 	to 	do 	so.
The 	union 	replies 	that 	breach 	of 	a 	settlement 	a g r e e m e n t 	is
not 	cognizable 	as 	an 	unfair 	p r a c t i c e 	and 	that 	the 	Public
Employment 	Relations 	Board 	is 	w i t h o u t 	jurisdiction 	in 	the 	c a s e .
M o r e o v e r , 	the 	union 	continues, 	it w a s 	the 	University 	that 	first
breached 	the 	agreement 	and 	the 	union 	acted 	only 	in 	response 	to
the 	University's 	action.
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.
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The University commenced this action on December 5, 	1989, 	by-
timely 	filing 	an unfair practice 	charge 	against 	the 	University
Council-American Federation of Teachers 	(Union or Council). 	The
University 	filed a 	first amended charge on February 26, 	1990, 	and
then withdrew a portion of the amended 	charge on April 	30, 	1990.
The 	general 	counsel 	of 	the Public 	Employment Relations 	Board
(PERB or Board) 	followed on April 	30, 	1990, 	with a complaint
against 	the 	Union.
The 	complaint 	alleges 	that 	the Union notified1 the
University 	that 	it 	considered 	the 	University to 	be 	in breach 	of
the settlement agreement of August 	17, 	1989, 	and was terminating
the agreement. 	The 	complaint alleges 	that 	the 	Union also 	stated
that 	it would 	not withdraw any unfair practice 	charges2 as
required by the agreement. 	By this 	conduct, 	the complaint
alleges, 	the 	Union 	failed 	to meet 	and 	confer 	in good 	faith as
required 	under 	Higher 	Education Employer-Employee 	Relations 	Act
(HEERA) section 3571.l(c).3
1Notification was by letter of October 	11, 	1989.
2Under the agreement, 	the Union and the 	University were 	to
withdraw their 	appeals 	to 	an administrative 	law 	judge's 	decision
in unfair practice 	case 	nos. 	LA-CE-235-H and SF-CE-272-H 	and 	the
Union was 	to withdraw unfair practice 	charge no. 	SF-CE-287-H.
3HEERA is 	found at 	section 	3560 	et 	seq. 	Unless 	otherwise
indicated, 	all references 	are to the Government Code. 	Section
3571.1 provides as 	follows:
It 	shall 	be unlawful 	for an employee
organization to:
(c) 	Refuse or fail to engage 	in meeting and
conferring with 	the 	higher 	education
employer.
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The Union answered the complaint on June 4, 	1990, 	asserting
various 	affirmative defenses. 	Among these was 	a 	contention that
the 	PERB 	is without 	jurisdiction to 	enforce 	the terms 	of 	the
settlement 	agreement.4 The 	Union 	further alleged 	that 	the
settlement 	agreement was 	not 	a mandatory 	subject 	of 	bargaining
under HEERA5 and 	is 	therefore 	not 	enforceable 	other than
contractually. 	In addition, 	the Union asserted that the
University had 	itself 	materially breached 	the 	terms 	of 	the
settlement, 	affording the Union the right to terminate.
A hearing was 	conducted 	into 	these 	matters 	on October 	2
through 4, 	1990, 	at the University headquarters 	in Oakland. 	With
the 	filing of briefs, 	the case was 	submitted for decision on
January 15, 	1991.
FINDINGS 	OF 	FACT
The 	University 	is 	a 	higher 	education 	employer under 	HEERA.
At 	all 	times 	relevant, 	the 	Union has been the 	exclusive
representative of 	University unit 	18, 	non-senate 	instructional
employees. 	Employees 	in unit 	18 	are non-tenure track instructors
4Specifically, 	the Union argues 	that the 	settlement
agreement 	is 	a 	contract 	and that under 	section 	3563.2(b) 	the 	PERB
is without authority to 	enforce the terms 	of a 	contract. 	In
relevant part, 	section 3563.2 reads as follows:
(b) 	The 	Board 	shall 	not have authority to
enforce agreements between the parties, 	and
shall 	not 	issue a 	complaint 	on any charge
based 	on 	alleged violation of 	such 	an
agreement 	that would not 	also 	constitute 	an
unfair practice under this 	chapter.
5The 	scope 	of 	bargaining under 	HEERA 	for the 	University 	of
California is 	set out at section 3562(q).
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working on all 	nine campuses 	of 	the University. 	The unit 	is
composed 	of 	some 	2,000 	individuals 	who 	hold 	the 	title 	of
lecturer.
Lecturers 	are 	temporary 	faculty 	for 	the 	University who 	serve
in a limited, 	substitute role. 	Often, 	they fill 	in for regular
faculty members who are 	on 	sabbatical. 	They also 	teach 	in
writing programs 	and 	foreign 	language 	instruction where 	tenure
track faculty 	frequently are not used. 	Most appointments 	to 	unit
18 positions 	are 	for one year or 	less 	although there are 	300 	to
500 	unit members 	teaching past 	their 	sixth year.
Litigation 	History
Under the memorandum of 	understanding 	(MOU) 	between the
parties, 	the University has broad discretion in the appointment
of 	lecturers 	during their 	first 	six years 	of 	employment. 	The
University can 	appoint or 	reappoint 	them 	for one or 	two year
terms 	or deny them reappointment altogether. 	However, 	lecturers
with 	six 	or more years 	of 	service must be 	reappointed 	for
three-year terms when the 	University determines 	that 	there 	is 	a
demonstrated 	"instructional 	need" 	for their 	services 	and 	their
performance 	is 	found 	in a department review to be 	"excellent."
The 	events 	of 	this 	case 	can be understood only 	in the
context 	of 	a history of 	litigation between the parties 	about 	the
"instructional 	need" 	provision of the MOU. 	Section VII.C.I.a.,6
5In relevant part, 	section VII.C.1. provides 	as 	follows
a) 	Reappointments which commence at or
beyond six 	(6) 	years 	of 	service at the 	same
campus 	can be made 	only when the 	following
A	4

the 	disputed provision, 	was written 	into the 	first 	MOU between
the parties, 	which became effective on July 	1, 	1986, 	and has
remained unchanged 	since then. 	Prior to the 	first MOU, 	lecturers
were 	prohibited 	from 	employment 	for 	more 	than 	eight 	years 	if
their appointments were 	for 	50 	percent 	or more 	of 	a 	full-time
position.
criteria have been met:
1) 	there is a continuing or
anticipated 	instructional 	need 	as
determined by the University; 	or,
there 	is 	a need 	for teaching 	so
specialized 	in 	character 	that 	it
cannot be 	done with 	equal
effectiveness 	by 	regular 	faculty
members 	or by 	strictly 	temporary
appointees; 	and, 	if so found,
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.I.a) 	continue to be met,
reappointments 	shall 	be made 	for three-year
periods 	. . . .
The 	term 	"instructional 	need" 	is 	nowhere defined 	in the MOU
and 	this 	deficiency has 	spawned persistent 	litigation7 between
the parties. 	In 	1988, 	the PERB consolidated for hearing two of
these 	cases, 	SF-CE-272-H and LA-CE-235-H. 	The administrative 	law
judge 	issued a proposed decision 	in those 	cases 	on February 	24,
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7PERB 	cases 	which have 	related 	in part 	or 	entirely 	to 	the
definition of 	"instructional need" 	are: 	SF-CE-272-H,
LA-CE-235-H, 	SF-CE-278-H and SF-CE-287-H.
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1989. 	Portions 	of 	the proposed decision displeased both parties.
Because of 	this, 	the 	University and the 	Union commenced a 	series
of 	exploratory 	conversations 	about 	the possibility 	of 	a
comprehensive 	settlement 	of 	their 	long-standing dispute.8
On April 	10, 	1989, 	the parties agreed to enter negotiations
about 	the definition of 	instructional 	need, 	the 	long-term
appointees 	section of the MOU, 	remedies 	for affected 	faculty
members 	at 	the University's 	Los Angeles, 	Santa Barbara 	and Santa
Cruz 	campuses, 	and a 	contractual 	exception for the 	UCLA School 	of
Education.
Settlement 	Negotiations
Settlement discussions were held between 	the parties 	over 	a
four-month period 	in mid-1989. 	Following a 	July 	19th meeting,
the 	fifth of 	six 	settlement conferences, 	there were 	several
drafts 	of 	a 	settlement agreement 	in circulation. 	These drafts
were discussed by Council 	members 	at 	a 	July 	22 	meeting where
there were 	expressions 	of 	concern about 	proposed modifications 	to
the 	definition of 	instructional 	need.
In particular, 	some Council members 	feared that the proposed
new definition would 	allow the 	University to make 	capricious
decisions 	about 	the mix 	of 	long-term and 	short-term 	lecturers.
Those 	who 	expressed 	concerns 	about 	the 	modified definition
8During the 	long 	litigation over this matter, 	the PERB
issued 	its 	own ruling, 	affirming 	in part 	and modifying 	in part
the ALJ's proposed decision. 	See, 	Regents 	of the University of
California 	(1990) 	PERB Decision No. 	826-H.
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contended 	that 	the 	University would 	not 	have to 	justify 	the 	mix
of 	long 	and 	short-term 	instructors 	on an 	educational 	basis.
As 	a result of 	these 	expressions, 	the Union directed 	its
negotiators 	to devise a way to 	ensure that the definition of
instructional 	need be 	related 	to 	the 	educational 	mission 	of 	the
University. 	The Council 	appointed Michael 	Rotkin, 	a 	lecturer at
the Santa Cruz campus, 	to 	join its regular negotiator, 	Marde
Gregory, 	at the 	final negotiating 	session of August 	10th.
Mr. 	Rotkin's primary focus was on the Santa Cruz 	campus.
Mr. 	Rotkin entered the August 	10 	meeting with a plan to
somehow get 	the Academic 	Senate 	involved 	in the 	instructional
need determinations 	at 	Santa 	Cruz. 	He believed Senate
participation would 	minimize 	the possibility 	of 	capricious
decision-making 	in need determinations.
Ultimately, 	the outline of 	a 	compromise developed at the
meeting of August 	10. 	The parties 	agreed that with 	some 	changes,
the 	modified definition 	of 	instructional 	need which 	they had
previously discussed would 	be written 	into 	a 	letter of
understanding. 	Secondly, 	the 	University agreed 	to hold 	a meeting
at 	Santa Cruz 	upon request 	of the 	Union whereby the 	campus 	need
determination process 	would be 	reviewed.
With 	a 	tentative 	agreement 	on these 	and other points 	at 	the
August 	10 	meeting, 	the University assumed responsibility 	for
preparing a 	final draft. 	The draft was 	sent to the Union on
August 	14 	but Council 	negotiators 	concluded 	it was 	incomplete 	and
pressed 	for changes. 	The 	University agreed 	to 	certain of 	the
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proposed changes, 	including a 	reference to an unspecified
involvement of the Academic 	Senate 	at Santa Cruz. 	With the
changes, 	Union negotiator Marde Gregory 	signed 	the 	agreement 	on
August 	17. 	By the 	settlement, 	the Union agreed to withdraw with
prejudice its 	charge 	in PERB 	case no. 	SF-CE-287-H and both
parties 	agreed 	to withdraw their 	exceptions 	to 	the proposed
decision in PERB 	case nos. 	SF-CE-272-H and LA-CE-235-H.
Three 	elements 	of 	this 	settlement 	agreement 	are 	critical 	to
this 	case: 	the 	revised definition of 	instructional need, 	the
proposed meeting at the 	Santa Cruz 	campus, 	and the role of 	the
Academic 	Senate 	in 	instructional 	need determinations 	at 	Santa
Cruz.
Provisions 	regarding 	instructional 	need 	appear 	at 	two 	places
in the 	settlement agreement: 	in a 	letter of understanding
attached 	to 	the 	agreement 	and 	in the 	agreement's 	first paragraph.
The 	letter 	of 	understanding provides 	that 	in making 	instructional
need determinations, 	the University may 	consider budgetary
resources 	as well 	as 	academic 	needs, 	including the relative 	need
for 	faculty of various 	ranks.
9The 	letter of understanding, 	found on the 	last page of
University Exhibit 22, 	provides 	in its 	entirety as 	follows:
"Instructional Need" 	is 	a term used to
describe 	the circumstances 	or 	set of
circumstances 	that 	indicate that 	the
University can make a 	commitment to a
Faculty/Instructor 	in the unit 	for a post
six-year 	three-year 	appointment 	[Article VII.
Section 	C.1.a]. 	Decisions 	regarding: 	the
allocation 	of 	financial/budgetary 	resources;
curriculum; 	programmatic emphasis; 	and, 	the
utilization of 	academic 	personnel 	vary 	from
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campus 	to campus. 	Therefore a determination
of 	"Instructional Need" 	cannot be a 	constant
on a universitywide basis. 	Thus, 	each campus
develops 	its 	own rationale 	for determining
"Instructional 	Need." 	Decisions 	regarding
the 	determination of 	"Instructional 	Need"
will 	not be 	capricious 	or unreasonable.
With this understanding, 	the University and
the UC-AFT agree 	that the determination of
"Instructional Need" 	by a 	campus 	shall
include, 	but is not limited to, 	the
following:
1. 	The relative needs 	or demands
of budgetary resources, 	as
determined by 	the 	campus 	for the
department, 	program or board;
and/or
2. 	The review and assessment by
the campus, 	based on its 	academic
judgement, 	of curricular needs;
program needs; 	and, 	relative need
for 	faculty of various 	ranks.
The 	other reference to 	instructional 	need 	is 	found 	in the
first numbered paragraph of 	the agreement. 	There, 	the parties
agree that 	as 	a result of 	the 	factors 	listed in the 	letter of
understanding, 	the 	University may 	impose 	a 	limit 	on the 	number of
post 	six-year appointments.10 The parties 	also 	agree 	that 	the
10The 	first 	numbered paragraph 	of 	the 	settlement 	agreement,
University Exhibit 22, 	reads as 	follows:
1. 	University and UC-AFT agree that the
LETTER OF 	UNDERSTANDING 	[emphasis 	in
original], dated August 14, 	1989, which is
attached 	to 	this 	Settlement Agreement 	and
made a part of hereto, 	is the agreed-to
operational 	definition of 	the 	term
"instructional 	need" 	as 	it appears 	in Article
VII. 	Section C. 	of the Memorandum of
Understanding 	between 	University 	and 	UC-AFT
covering 	the Non-Senate 	Instructional 	Unit.
As 	a result, 	University and UC-AFT agree 	that
the 	factors 	listed 	in the 	LETTER OF
9

definition may 	result 	in a 	mix 	of 	long-term and 	short-term
lecturers. 	The exact nature of the mix 	is 	not 	specified.
UNDERSTANDING may necessitate, 	in any given
Academic 	Year, 	a 	limitation on the number of
post 	six-year 	three-year 	appointments 	that
may be 	requested and/or allocated; 	or result
in a 	mix 	of 	long-term and 	short-term
lecturers. 	University and UC-AFT agree 	that
the term 	"faculty" 	as 	used 	in LETTER OF
UNDERSTANDING 	includes 	ladder 	rank 	faculty,
and 	other 	teaching 	faculty 	and 	graduate
students. 	Discussions 	regarding the
determination of 	instructional 	need are 	not
precluded 	by 	the 	LETTER OF 	UNDERSTANDING.
In early drafts 	of the 	settlement agreement, 	the 	language on
the 	mix 	of 	long-term 	and 	short-term 	lecturers was 	written 	into
the 	letter of understanding. 	However, 	it was moved after the
August 	10 	meeting at 	the request of 	Union negotiator Rotkin.
University witnesses 	testified 	the 	change was 	made 	to 	accommodate
Union requests 	to 	"bury" 	the provision. 	Mr. 	Rotkin testified
that 	the 	language was 	moved 	to 	attenuate 	linkage between 	language
on 	the mix 	of 	long 	and 	short-term 	lecturers 	and 	language 	on
budget 	considerations.
The 	University 	considered 	the 	language 	on 	instructional 	need
to be the key element of 	the 	settlement. 	In addition to
permitting budgetary 	considerations 	in the hiring 	of 	post
six-year 	instructors, 	the 	University believed the 	new language
would permit hiring to bring 	"new blood" 	onto 	the 	faculty. 	Thus,
post 	six-year appointments 	might be denied 	solely because 	the
University determined that 	it 	needed new teachers 	to 	change 	the
orientation or emphasis 	of 	a 	course.
10

The 	second 	key 	element 	of 	the 	settlement was 	the provision
for 	a 	meeting between the 	Union and 	the 	University 	to 	review the
process 	for determining 	instructional 	need at 	Santa Cruz. 	The
suggestion of 	a meeting was 	first raised at the July 	19
settlement 	meeting. 	Union negotiators wanted the meeting to
determine the 	University's position regarding what, 	in campus
parlance, 	was 	known as the 60-40 	split.11 The meeting, 	from the
Union's 	point 	of 	view, 	would permit 	consultation with 	the
University before 	need determinations 	were made.
The 	language 	agreed 	to by the parties 	sets 	out 	a 	series 	of
consultative meetings, 	the 	first 	in the 	fall 	of 	1989 	followed by
additional 	meetings 	in the 	spring of 	1990 	and 	1991.12 The
11The 60-40 	split was 	a 	budgetary 	limitation 	imposed 	at
Santa Cruz 	in 	1987 	fixing post 	six-year appointments 	at 	60
percent 	of 	the temporary hirings. 	Appointments 	for persons who
had been 	employed 	fewer 	than 	six 	years 	were 	fixed 	at 	40 	percent
of 	the temporary appointments.
12In relevant part, 	the 	settlement agreement 	in paragraph 	4
provides as 	follows:
a. 	Upon request, 	University will meet during
the 	1989 	Fall Quarter with up to 	four 	(4)
representatives 	of UC-AFT. 	The purpose of
this 	meeting will 	be 	for University to
discuss 	its 	proposed 	1989-90 	instructional
need determination 	for post 	six-year 	three-
year appointments 	to be 	effective 	July 	1,
1990 	for members 	of the Non-Senate
Instructional 	Unit 	for the 	Santa Cruz 	campus
and 	to 	outline 	the process 	for 	consulting
with appropriate Academic 	Senate 	Committees
for 	the determination of 	instructional 	need
as 	required to meet 	the 	educational
objectives 	established 	by 	University 	for 	a
particular course 	or group of 	courses.
Similar provisions 	are 	set out 	for the meetings 	in 	1990 	and
1991.
11

meetings were 	to be held 	"upon request" 	of 	the 	Union 	"for 	[the]
University 	to 	discuss 	its 	proposed 	1989-90 	[and 	subsequent]
instructional 	need 	determination 	for post 	six-year 	three-year
appointments."
The 	language 	is 	somewhat vague and 	it 	is 	apparent 	that 	the
parties 	had 	entirely different 	expectations 	about 	the proposed
meeting. 	For the Union, 	the meeting would be an opportunity 	for
significant 	input prior to 	need determinations 	at 	Santa Cruz.
Union 	negotiator 	Rotkin 	testified 	that 	he 	believed 	the 	meetings
would 	lead 	to 	a whole 	new 	instructional 	need determination
process 	at 	Santa Cruz. 	He believed that with the 	settlement
agreement 	the parties would be 	"starting 	from 	scratch, 	have 	a 	new
relationship 	[and] 	listen to 	each other." 	He and other Union
officers 	believed that 	the 	University would 	not 	make 	a 	final 	need
determination prior 	to the 	meeting.
By 	contrast, 	University negotiators 	envisioned the proposed
meeting 	as 	an 	informational 	session at which the 	University would
describe 	its procedures 	for need determination. 	Since 	the
meeting would be 	"upon request" 	of the Union, 	University
negotiators 	believed 	there was 	no 	obligation to 	advise 	the 	Union
prior to making a need determination at 	Santa Cruz. 	Further,
University 	negotiators 	believed 	that 	they were 	not 	obligated 	to
reach 	any 	agreement with 	the 	Union 	about 	subjects 	raised 	at 	the
meeting.
A related 	issue, 	about which the parties 	are 	equally 	in
disagreement, 	was 	the proposed role 	in need determinations 	the
12

agreement would afford 	to 	the 	Santa 	Cruz Academic 	Senate. 	Union
negotiator 	Rotkin 	succeeded 	in pressing 	for a 	reference 	to 	the
Academic 	Senate 	in the 	settlement 	agreement. 	The 	agreement
provides 	that 	one purpose of 	the 	campus 	meetings would be 	for 	the
University 	"to 	outline 	the process 	for 	consulting with
appropriate Academic 	Senate 	Committees 	for 	the determination 	of
instructional need 	. 	. 	. 	." 	But, 	as with the language about the
meeting 	itself, 	the reference to the role of the Academic 	Senate
is 	vague 	and 	subject 	to differing 	interpretations.
The 	initial version of the agreement, 	prepared by the
University after the August 	10 	meeting, 	contained no reference 	to
the 	Senate. 	This 	omission occurred despite what 	Union
negotiators 	believed 	to 	be 	University acquiescence 	to 	their
request 	for a Senate role. 	Nevertheless, 	the University did
agree to 	add a reference to the Senate after a 	series 	of
telephone 	conversations 	following the August 	10 	meeting.
Despite 	extensive negotiations 	about 	a 	role 	for the 	Senate,
the parties 	never agreed what 	that 	role would be. 	Union
negotiator Rotkin tried various proposals, 	including
participation by a 	vice 	chancellor with 	ties 	to 	the 	Senate 	in
meetings 	between the 	Union and the 	University. 	The 	University
rejected the 	suggestion. 	Mr. 	Rotkin made other 	specific
suggestions 	about how the 	Senate 	could be brought 	into 	the 	need
determination process 	but 	every 	suggestion was 	rejected. 	The
constant 	response 	of 	University 	negotiators 	was 	that 	the
13

University 	could not 	and would not 	attempt to dictate 	to 	the
Academic 	Senate.
Nevertheless, 	when the University agreed to 	include a
reference 	to the Senate 	in the 	settlement agreement, 	Union
negotiators 	were 	convinced 	that 	some way would 	be 	found 	for
Senate participation. 	Mr. 	Rotkin testified that he anticipated
that 	after 	the 	University 	rejected 	some 	Union proposals 	on
instructional 	need, 	the 	Union would be able to 	convince the
Senate to become 	involved. 	From the Union's perspective, 	Senate
involvement would 	promote 	need 	determinations 	on 	academic 	rather
than budgetary 	rationales.
University negotiators, 	although accepting a reference 	to
the Senate 	in the 	settlement agreement, 	did not believe 	they had
agreed to negotiations 	or to 	any bar to unilateral 	need
determinations. 	University 	negotiators 	repeatedly 	told 	Union
negotiators 	that 	the 	University would 	not 	ask the 	Senate 	to
participate 	in need determinations 	or dictate 	a role 	to 	the
Senate. 	Indeed, 	University negotiators 	repeatedly 	stated that
they 	did 	not 	anticipate 	that 	the 	Senate would be 	involved 	in 	need
determinations 	at 	Santa Cruz. 	All 	the 	University would 	concede
was 	that 	if 	the Senate requested to become 	involved, 	the
University would 	consider whatever 	the 	Senate 	requested.
As 	originally drafted, 	the 	settlement agreement 	set out 	a
number of 	specific 	arrangements 	for 	individual 	unit members 	at
the Los Angeles, 	Santa Barbara and Santa Cruz 	campuses. 	However,
reference 	to 	individuals 	at 	Santa Barbara 	and 	Santa 	Cruz was
14

removed 	from the 	final 	agreement 	because 	the 	Union was 	unable 	to
sign a hold harmless 	agreement 	on their behalf.
The 	settlement 	agreement 	did 	not provide 	for 	amendment 	to
the 	MOU 	or 	for 	attachment 	of 	the 	new definition of 	"instructional
need" 	to the MOU. 	It is 	not the practice of the parties 	to
attach 	side 	letters 	to 	their MOU or otherwise 	incorporate 	them
into 	the 	existing agreement.
Need 	Determinations 	at 	Santa 	Cruz
In September of 	1989, 	Union representative Roz 	Spafford
received 	copies 	of 	three 	documents 	which 	led her 	to 	conclude 	that
the 	University had breached 	the 	newly 	signed 	agreement. 	Two 	of
the documents 	were memoranda 	from Santa Cruz 	Humanities 	Dean H.
D. 	Harootunian, 	dated September 	13 and 26. 	Collectively, 	the
Dean's 	memoranda 	stated 	that 	there would be 	no 	change 	the
following year 	in 	need 	determination 	for 	temporary 	faculty.
The third document was 	a 	September 2 7 	letter to Spafford
from 	Santa 	Cruz 	labor relations 	analyst 	Susan Angstadt which
declared 	that 	the 	Humanities 	Division 	intended to 	continue 	"the
plan" 	for the 	1989-90 	school year. 	The 	"plan," 	to which
Ms. 	Angstadt referred, 	was 	a requirement that unit members 	carry
certain other duties 	in addition to teaching. 	The 	effect of
these memoranda, 	in the view of the Union, 	was to continue the
same 	numerical 	limitations 	on three-year appointments 	which 	had
given rise to PERB case no. 	SF-CE-272-H.
The 	three 	letters 	also 	indicated to 	the Union that 	the
University 	had made 	1989-90 	need determinations 	at 	Santa 	Cruz
15

prior to 	the proposed meeting between the parties. 	Because 	of
the planned meeting 	and potential 	involvement 	of 	the Academic
Senate, 	Union officials 	had 	expected the 	University 	to 	notify 	the
Union prior to making any need determinations. 	Ms. 	Spafford and
other 	Union 	officers 	considered 	the 	University's 	action to 	be 	a
breach of 	the 	settlement 	agreement prior to 	"when the 	ink was
dry. "
Ms. 	Spafford's 	concerns were taken up by the Council at a
meeting on October 	7, 	1989. 	Delegates 	to the Council meeting
voted unanimously 	to 	declare 	the 	University 	in total 	breach 	of
the 	agreement. 	The 	effect of 	the University's 	action in the
Union's 	view was 	to 	set the agreement 	aside 	and to discharge 	the
Union's 	obligation to perform under 	it. 	The Union 	followed 	the
vote 	of Council delegates with an October 	11 	letter to the
University 	declaring 	the 	breach 	and 	advising 	the 	University 	that
it was 	terminating the 	agreement.13 The 	Union 	specifically
advised 	the 	University that 	it would not withdraw any 	of 	its
unfair practice 	charges 	filed with 	the PERB 	and 	it did 	not do 	so.
The 	University was 	surprised by the 	Union's 	action. 	The
University did 	not 	believe 	it 	had 	violated 	either 	the 	spirit 	or
letter of 	the 	agreement. 	After the 	Union declared the 	University
in breach of 	the agreement, 	three University labor relations
13Except 	for the 	University's 	obligations 	under paragraph 	4A
of 	the 	settlement agreement, 	the Union makes 	no 	contention that
the 	University has 	otherwise breached the 	agreement. 	See
stipulation of the parties. 	R.T., Vol. 	1, p. 	68.
16

officers 	contacted different 	Union 	officials 	seeking 	further
meetings. 	The Union rejected these overtures.
LEGAL 	ISSUE
Did the University Council-AFT, 	by refusing to honor the
settlement agreement, 	make an unlawful 	unilateral 	change 	in a
negotiable 	subject 	and 	thereby 	fail 	to 	meet 	and 	confer 	in good
faith?
CONCLUSIONS 	OF 	LAW
1
This 	case presents 	the unusual 	situation of 	an 	employer
accusation 	that 	an 	exclusive 	representative 	has 	made 	a 	unilateral
change 	in a negotiable 	subject. 	As 	the Respondent notes, 	unions
are 	seldom accused of 	this 	type 	of 	failure 	to 	negotiate 	in good
faith 	"because 	of 	their 	relative 	inability 	to 	effect 	unilateral
changes."14 Nevertheless, 	there are circumstances 	in which
unions 	have 	been 	found 	guilty 	of 	carrying 	out 	unlawful 	unilateral
changes.1515
Rules 	for 	evaluating 	alleged unilateral 	changes 	by 	unions
are 	the 	same 	as 	rules 	for 	evaluating alleged unilateral 	changes
14The Developing Labor Law. 	2d edition, 	1983, 	BNA, 	Vol I,
Chapter 13, pp. 	564-565.
15Associated Home Builders. 	Inc. 	v. 	N.L.R.B. 	(9th cir.,
1965) 	352 	F.2d 	745 	[60 LRRM 2345] 	(union's unilateral 	imposition
of production quotas, 	enforced by fines upon members); 	Plumbers
Local 420 	(Paragon Mechanical) 	(1981) 	254 NLRB 445 	[106 LRRM
1183] 	(union's 	coercion, 	enforced by strike, 	which compelled
employer 	to 	abandon national 	agreement 	in 	favor of 	local
agreement); 	Communications Workers 	(Chesapeake & Potomac Tel.
Co). 	(1986) 	280 NLRB 78 	[124 LRRM 1009] 	enf. 	(4th cir., 	1987) 	818
F.2d 	29 	[125 	LRRM 2352] 	(union's unilateral 	refusal 	to agree 	to
continued preparation, 	use, 	and sharing of 	costs 	of transcript 	in
nonexpedited arbitration proceedings).
17

by 	employers. 	A pre-impasse 	unilateral 	change 	in an established,
negotiable 	practice 	violates 	the duty 	to 	meet 	and 	negotiate 	in
good 	faith. 	Such a unilateral 	change 	is 	a 	failure per 	se of 	the
duty 	to 	negotiate 	in good 	faith 	and an unfair 	labor practice.16
Where, 	as here, 	a unilateral change allegation involves the
alleged breach of 	an agreement, 	the 	statutory proscription
against 	PERB 	enforcement of 	agreements 	becomes 	relevant. 	HEERA
section 3563.2(b) 	provides:
(b) 	The Board 	shall 	not have authority to
enforce agreements between the parties, 	and
shall 	not 	issue a 	complaint on any charge
based 	on alleged 	violation of 	such 	an
agreement 	that would 	not 	also 	constitute 	an
unfair practice 	under this 	chapter.
The breach 	of 	an agreement will 	constitute 	an 	independent
violation only where 	the breach amounts 	to 	a 	change 	in policy
having 	"a 	generalized 	effect 	or 	continuing 	impact 	upon the 	terms
and conditions 	of 	employment 	of bargaining unit members." 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.
The 	Board has 	interpreted 	section 	3563.2(b) 	as 	applying to 	unfair
practice 	settlement 	agreements 	as well 	as 	to memoranda of
understanding. 	Thus, 	breach of an unfair practice 	settlement
agreement, 	without more, 	does not constitute a failure to
negotiate 	in good 	faith. 	Regents 	of 	the 	University of 	California
16Davis Unified School District, 	et al. 	(1980) 	PERB Decision
No. 	116; 	State of California 	(Department of Transportation)
(1983) 	PERB Decision No. 	361-S. 	These principles are applicable
to 	cases 	decided under HEERA. 	Regents 	of 	the 	University of
California 	(1983) 	PERB Decision No. 	356-H. 	See also, 	NLRB v.
Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].
18

(1983) 	PERB Decision No. 	362-H. 	The breach of a 	settlement
agreement will 	constitute 	an 	independent 	violation only where 	the
breach amounts 	to 	a 	change 	in policy having a generalized 	effect
or 	continuing 	impact upon the 	terms 	and 	conditions 	of 	employment.
See, 	Clovis Unified School District 	(1986) 	PERB Decision No. 	597.
In this 	regard, 	breaches 	of 	settlement agreements 	are treated
exactly 	like breaches 	of 	contracts.
The 	University contends 	that 	the 	Union made 	a 	unilateral
change when 	it 	abrogated 	the 	settlement 	agreement 	for unfair
practice 	cases 	LA-CE-235-H, 	SF-CE-272-H and SF-CE-287-H. 	The
University 	argues 	that 	the 	Union's 	action 	effectively 	set 	aside
the revised definition of 	instructional need, 	a 	critical 	element
in 	every 	appointment 	decision 	involving 	long-term unit 	members.
This 	action, 	the University contends, 	had a generalized effect
and 	continuing 	impact 	on 	appointments 	of 	long-term unit members.
The 	Union argues 	that 	the 	charge must be dismissed because
the 	PERB 	has 	no 	jurisdiction to 	enforce 	the 	settlement 	agreement
at 	issue. 	The Union contends 	that 	its 	repudiation of 	the
settlement 	agreement 	did 	not 	separately 	constitute 	a 	unilateral
change, 	as required in Grant. 	This 	is true, 	the Union asserts,
for two reasons. 	First, 	repudiation of the agreement had no
generalized effect or continuing impact, 	and 	second, 	the
agreement does 	not 	involve 	a 	negotiable 	subject.
The 	Union's 	obligation under 	the 	agreement was 	limited 	to
withdrawal 	of 	the unfair practice 	charges 	and restraint 	in 	future
filings. 	Repudiation of those obligations, 	as the Union argues,
19

had no 	effect 	other than continuation of 	the 	PERB proceedings.
It is 	not the case, 	as 	the University asserts, 	that the Union's
action had the 	effect of 	changing the 	criteria 	for appointment 	of
long-term unit members. 	The Union has 	no control 	over hiring.
It 	is 	the University that makes 	the hiring decisions. 	The Union
does 	not participate 	in the process.17
Moreover, 	as the Union argues, 	the key element of the
agreement 	is 	withdrawal 	of 	the 	Union's 	previous 	unfair practice
charges. 	The 	scope of representation 	for negotiations 	involving
the University of California 	"means 	and 	is 	limited to, 	wages,
hours 	of 	employment 	and other terms 	and 	conditions 	of
employment."18 Under 	similar wording 	of 	the 	Educational
Employment 	Relations Act,19 PERB has 	excluded 	from the
mandatorily bargainable 	subjects 	an 	employer's 	demand 	that 	a
union withdraw an unfair practice 	charge. 	Lake Elsinore 	School
District 	(1986) 	PERB Decision No. 	603. 	In support of this
conclusion, 	the 	Board relied 	entirely upon holdings 	of 	the
20
National 	Labor 	Relations 	Board.
-.. "
17The 	University 	can apply whatever definition of
instructional need it wishes. 	The Union, 	at most, 	can only
challenge 	the 	University after the 	fact. 	This 	differs 	from the
cases cited in footnote no. 	15, 	supra. 	In those cases, 	it was
-the 	union that 	actually made 	or 	compelled the 	change 	in the
negotiable 	subject.
18HEERA section 3562 (q).
19The Educational Employment Relations Act 	(EERA) 	is 	found
at 	section 3540 	et 	seq.
20In particular, 	Kit Manufacturing Co.. 	Inc. 	(1963) 	142 NLRB
957 	[51 LRRM 1224], 	enfd. 	(9th Cir. 	1963) 	335 F.2d 	166 	[53 LRRM
3010] .
20

In the 	absence 	of 	any persuasive 	argument 	for why 	there
should be a different result under HEERA, 	I 	conclude that the
Lake 	Elsinore 	rationale 	is 	controlling. 	A higher 	education
employer's 	proposal 	that 	a 	union withdraw an unfair practice
charge 	is 	not a mandatory 	subject of bargaining.
Thus 	it 	is 	clear that the Union's 	refusal 	to withdraw its
prior unfair practice 	charges 	did 	not 	constitute 	a 	unilateral
change 	and 	failure 	to negotiate 	in good 	faith. 	The 	Union's
refusal 	to withdraw was 	not a 	change 	in policy having 	a
generalized 	effect 	or 	continuing 	impact 	upon a 	term 	and 	condition
of 	employment. 	This 	is 	because the refusal 	to withdraw an unfair
practice 	charge 	is 	not a mandatorily negotiable 	subject. 	The
requirement 	that 	the 	Union withdraw the 	unfair practice 	charges
is 	a 	contractual requirement, 	only. 	Since PERB 	is precluded 	from
enforcing 	contractual 	agreements which do 	not 	separately
constitute unfair practices, 	the agency 	is without 	jurisdiction
in this matter.
Accordingly, 	I 	conclude that the University's 	charge and
companion complaint 	must be dismissed 	for 	failure 	to 	state 	a
prima 	facie violation of the HEERA. 	For these reasons, 	it
therefore 	is 	unnecessary to 	consider the 	Union's 	defense 	that 	it
was 	entitled to 	repudiate 	the 	agreement 	as 	a matter of 	contract
law.21
21The 	only 	issue decided here 	is whether the breach of 	the
agreement was 	an unfair practice. 	I 	conclude that 	it was 	not.
Since 	it 	is 	unnecessary to 	reach the 	question of whether the
Union was 	entitled to breach the agreement, 	this proposed
decision makes 	no 	conclusion about 	the validity of 	the 	contract.
21

Whether 	the 	agreement 	is 	legally binding 	and 	enforceable 	in 	court
is 	an entirely different matter.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record 	in this 	matter, 	unfair practice 	charge
SF-CO-19-H, 	The Regents 	of 	the University of California v.
University Council-American Federation of 	Teachers, 	and 	companion
PERB 	complaint 	are 	hereby 	DISMISSED.
Pursuant to California Code of Regulations, 	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 Code 	of
Regulations, 	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 	". 	. 	. o r when sent by
telegraph or certified or Express 	United 	States 	mail, 	postmarked
not later than the last day set for filing 	. 	. 	. 	." 	See
California Code of Regulations, 	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
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-------------------------·

shall 	accompany 	each 	copy 	served on a party 	or 	filed with 	the
Board itself. 	See California Code of Regulations, 	title 	8,
sections 32300, 	32305 and 32140.
Dated: 	January 31, 	1991
RONALD E. 	BLUBAUGH
Administrative 	Law 	Judge
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