Regents of the University of California (University Professional and Technical Employees and Anisman) (PERB 1055H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL AND
TECHNICAL EMPLOYEES, 	CWA, 	LOCAL
9119 AND DEBORAH J. 	ANISMAN,
et al.,
Charging Parties,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	LA-CE-389-H
PERB Decision No. 	1055-H
September 	12, 	1994
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by James
Rutkowski, 	Attorney, 	for University Professional and Technical
Employees, 	CWA, 	Local 9119; 	and Deborah J. Anisman, 	et al.;
Edward M. 	Opton, 	Jr., 	Attorney, 	for Regents of the University of
California.
Before Blair, 	Chair; 	Caffrey and Johnson, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the University Professional
and Technical Employees, 	CWA, 	Local 	9119 and Deborah J. 	Anisman,
et al. 	(Charging Parties) 	of a Board agent's dismissal 	(attached)
of 	the unfair practice 	charge 	filed against 	the Regents 	of 	the
University of 	California 	(University). 	Charging Parties allege
that 	the 	University unilaterally 	reduced 	salaries 	without 	notice
in violation of 	section 3571(a) 	and 	(b) 	of 	the Higher Education
Employer-Employee 	Relations Act 	(HEERA).1 The 	charge was
'1HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
HEERA section 3571(a) 	and 	(b) 	state, 	in pertinent part:
HEERA
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:

(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights 	guaranteed
to 	them by 	this 	chapter.
dismissed 	for 	failing 	to 	state 	a prima 	facie 	case.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the individual charges 	(Deborah J. 	Anisman et al.), 	the
warning and dismissal 	letters, 	the Charging Parties' 	appeal 	of
dismissal 	and the University's 	reply 	to 	the appeal. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-389-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member 	Caffrey 	joined 	in 	the Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3630 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 29, 	1994
Cliff 	Fried
1015 Gayley Avenue, 	Suite 	115
Los Angeles, 	CA 	90024
RE: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-389-H, 	University Professional and
Technical 	Employees. 	CWA Local 	9119. 	and Deborah J. 	Anisman
et al. 	v. 	Regents of 	the University of California
Dear Mr. 	Fried:
In 	the above-referenced charge, 	the University Professional
and Technical 	Employees, 	CWA Local 	9119 	(UPTE) 	and Deborah J.
Anisman et al. 	allege that 	the Regents 	of 	the University of
California 	(University) 	changed salaries without notice. 	This
conduct 	is 	alleged 	to violate Government 	Code 	sections 	3571(a)
and 	(b) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA).
I 	indicated to you, 	in my attached 	letter dated March 	10,
1994, 	that 	the above-referenced charge did not 	state a prima
facie case. 	You were, advised that, 	if there were any factual
inaccuracies 	or additional 	facts 	which would correct 	the
deficiencies 	explained in that 	letter., 	you should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it prior 	to March
18, 	1994, 	the charge would be dismissed. 	I later extended the
deadline to March 25, 	1994.
On March 25, 	1994, 	I 	received from you a first amended
charge. 	The amended charge 	emphasizes 	that 	Charging Parties were
not 	given notice 	that many 	other employees 	would be 	exempted 	from
the 	salary cut. 	There appears 	to be no legal 	requirement,
however, 	that 	the University notify Charging Parties 	that 	it
would or would not 	change 	the 	employment 	conditions 	of 	other
employees. 	Unde
Public Employmen	_-_--r Regents 	of 	the University of 	California v.
t 	Relations 	Board 	(1985) 	168 	Cal.App.3d 937 	[214
Cal.Rptr. 	698], 	Charging Parties were entitled to notice that the
University proposed to 	change 	Charging 	Parties' 	own employment
conditions. 	As 	indicated 	in my March 10 	letter, 	Charging Parties
did receive 	such notice. 	I am therefore dismissing 	the 	charge,
based on 	the 	facts 	and 	reasons 	contained 	in this 	letter and my
March 10 	letter.

Dismissal 	Letter
LA-CE-389-H
March 29, 	1994
Page 2
Right to Appeal
Pursuant to Public Employment Relations Board regulations,
you may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents authorized to be filed herein must also be
"served" upon all parties to the proceeding, 	and a "proof of
service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32140 for the required contents and a sample form.)
The document will be considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a
document with the Board itself, 	must be in writing and filed with
the Board at the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
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C
Dismissal Letter
LA-CE-389-H
March 29, 	1994
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By THOMAS 	J. 	ALLEN
Regional 	A t t o r n e y
Attachment
cc: 	Edward M. Opton, Jr., Esq.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angelas Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
March 10, 	1994
Cliff 	Fried
1015 Gayley Avenue, 	Suite 	115
Los Angeles, 	CA 	90024
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-389-H,
University 	Profeasional 	and Technical 	Employees.
CWA Local 9119. 	and Deborah J. 	Anisman et al. 	v. 	Regents of
the 	University 	of 	California
Dear Mr. 	Fried:
In 	the 	above-referenced 	charge, 	the University 	Professional
and Technical 	Employees, 	CWA Local 	9119 	(UPTE) 	and Deborah J.
Anisman et al. 	allege that 	the Regents 	of 	the University of
California 	(University) 	changed salaries without notice. 	This
conduct 	is 	alleged 	to violate Government 	Code 	sections 	3571(a)
and 	(b) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA).
My 	investigation of 	the 	charge 	reveals 	the 	following
relevant 	facts.
The 	individual 	charging parties 	are University employees 	in
bargaining units 	for which 	there 	is 	no exclusive 	representative.
UPTE 	is 	their nonexclusive 	representative.
An article 	in the April/May 1993 	issue 	of UC 	Focus,
published 	for University 	faculty and 	staff 	by 	the 	Office 	of 	the
President, 	stated 	that 	the 	Regents 	had adopted a budget-cutting
plan that 	included a 	5% 	"across-the-board" 	one-year salary cut
for 	faculty and staff. 	The 	President was 	quoted as 	saying, 	"If
reasonable alternatives 	can be developed, 	and 	if 	state 	funding 	is
not 	further 	reduced 	for next 	year, 	a 	revised recommendation will
be presented 	to 	the Regents." 	The Article 	also 	stated 	that 	the
Regents 	"expressed hope 	that 	other alternatives 	could be 	found."
It 	is 	not 	apparent 	from the 	charge 	whether 	charging parties
requested discussions 	of 	the proposed cut 	or the alternatives, 	or
whether any such discussions 	took place, 	prior to July 1, 	1993.
Without 	further notice to employees, 	the University
implemented a salary cut 	on July 1, 	1993. 	The 	cut was 	3.5%
rather than 5%, 	and it was not 	"across-the-board" 	as 	several
classes 	of 	employees 	(particularly in the areas 	of 	nursing,
health care, 	patient care, 	and skilled crafts) 	were exempt. 	It

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Warning 	Letter
LA-CE-389-H
March 10, 	1994
Page 2
does 	not 	appear 	that 	any 	employees 	represented by UPTE 	were
exempted.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie violation of 	the HEERA, 	for the reasons 	that 	follow.
In Regents 	of 	the University of 	California 	v. 	Public
--------Employment Relations Board 	(1985) 	168 Cal.App.3d 937, 	945 	[214
Cal. 	Rptr. 	698], 	the court defined as follows the practices
satisfying 	the 	University's 	duty 	toward 	its 	nonexclusively
represented 	employees:
Under these practices, 	the University
notifies 	individual 	employees 	of 	proposed
changes 	in employment 	conditions and, 	if 	the
employee 	chooses 	to have 	his 	or her union
meet with 	the 	employer 	to discuss 	the
changes, 	such meetings are held upon request.
After providing 	such notice 	and opportunity for discussion, 	the
University may 	implement 	the 	changes.
In 	requiring 	only notice 	and opportunity to 	"discuss," 	the
court 	recognized 	that 	nonexclusively 	represented 	employees 	have
lesser rights 	than exclusive 	representatives, 	which have a 	right
to 	"negotiate," 	to agreement 	or through 	the 	completion of 	impasse
procedures, 	before the implementation of 	changes. 	The court did
not 	define 	how specific 	the 	notice 	to nonexclusively 	represented
employees must 	be 	in order to make 	their 	right 	to 	request
discussions meaningful, 	nor did the 	court 	state whether the
changes 	as 	implemented must be 	identical 	to the 	changes 	as
proposed, 	or whether the University must 	provide 	additional
notice 	of 	any modifications 	in 	its proposal.
It 	would seem illogical 	to 	require 	that 	the 	changes as
implemented be 	identical 	to 	the 	changes 	as 	proposed. 	Such a
requirement 	would defeat 	the very purpose 	of 	notice 	and
discussion: 	to give 	employees 	the 	opportunity 	to modify by 	their
input what 	the University proposes 	to do. 	Furthermore, 	a
requirement 	of 	additional 	notice 	to employees 	of 	every
modification 	in 	the 	University's 	proposal 	would 	extend 	the
process 	and discourage 	employer 	flexibility, 	without 	necessarily
enhancing 	the 	opportunity 	for meaningful 	employee 	input.
The 	University 	should 	therefore 	have 	some 	latitude 	in
modifying 	its 	proposed 	changes 	without 	giving additional 	notice.
Employers 	do have 	latitude 	even 	in 	their dealings 	with exclusive
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Warning 	Letter
LA-CE-389-H
March 10, 	1994
Page 3
representatives. 	Under Modesto City Schools 	(1983) 	PERB Decision
No. 	291, 	at p. 	46, 	an employer may make post-impasse unilateral
changes without 	further notice, 	and the 	changes as 	implemented
need not 	be 	exactly 	those 	offered 	to 	the 	exclusive 	representative
during negotiations, 	so long as 	the 	changes are 	"reasonably
comprehended" 	within the pre-impasse proposals. 	(Without 	this
latitude, 	the 	impasse procedures would be 	limited 	in their
ability 	to 	facilitate modifications 	in 	the 	employer's 	proposals.)
Given the 	lesser 	rights 	of 	nonexclusively 	represented employees,
an 	employer 	like 	the University should have greater 	latitude 	in
implementing unilateral 	changes 	that 	affect 	its 	nonexclusively
represented 	employees.
The 	notice 	required 	to be 	given 	to 	employees 	should be
notice 	sufficient 	to allow the 	employees 	to determine whether or
not 	to request discussions. 	In the present 	case, 	the University
gave notice 	that 	it was 	proposing a 	5% 	across-the-board 	salary
cut but 	was 	hoping 	for 	"alternatives." 	The obvious 	less 	drastic
alternatives 	to a 5% across-the-board salary cut would be 	(l) 	a
cut of less 	than 5%, 	(2) 	a cut 	that 	is not across-the-board, 	or
(3) 	some combination of 	the two. 	The University's notice would
appear to be 	sufficient 	to allow employees 	to determine whether
or not 	to 	request 	discussions 	of 	the proposed cut 	or of 	these
obvious 	less drastic alternatives, 	and the 	cut as 	implemented
would appear 	to be 	reasonably within 	the 	scope 	of 	the notice.
UPTE argues 	that 	the present 	case 	is parallel 	to Regents 	of
the University of California 	(1990) 	PERB Decision No 	842, 	in
which 	the 	University 	unilaterally 	and 	unlawfully 	implemented
split payment of merit increases. 	In that case, 	however, 	the
University never 	clearly 	notified 	employees 	that 	split 	payment
was a distinct possibility; 	in fact, 	the employees were 	left with
the 	impression that 	split payment would not 	occur. 	The 	employees
thus had no reason, 	and no 	fair opportunity, 	to request
discussions 	of 	split payment before 	implementation. 	In the
present 	case, 	in contrast, 	the University gave clear notice of
the proposed 5% across-the-board cut. 	Faced with such a 	cut, 	the
employees 	had every apparent 	reason to 	request 	discussions 	of 	the
proposal 	and of 	the 	obvious 	less drastic 	alternatives. 	The 	fact
that 	the 	University ultimately did 	implement 	a 	less 	drastic
alternative 	does 	not mean 	that 	the 	employees were deprived of 	a
fair opportunity 	to 	request 	discussions.
For these reasons the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in 	this 	letter or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the charge. 	The
w
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Warning Letter
LA-CE-389-H
March 10, 	1994
Page 4
amended charge should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before March 18, 	1994, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
V -
Thomas J. Allen
Regional Attorney
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