Regents of the University of California (University of California-American Federation of Teachers) (PERB 1072H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY COUNCIL 	- 	AMERICAN
FEDERATION OF 	TEACHERS,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	LA-CE-394-H
PERB Decision No. 	1072-H
December 	7, 	1994
Appearance: 	Edward R. 	Purcell, 	UC-AFT Labor Relations
Consultant, 	for University Council 	- 	American Federation of
Teachers.
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 Council 	-
American 	Federation of 	Teachers 	(UC-AFT) 	of a Board agent's
dismissal 	(attached) 	of 	its unfair practice 	charge. 	UC-AFT
alleged that 	the 	Regents 	of 	the University of 	California
(University) 	refused to bargain over contracting out 	at 	the
University's 	Riverside and Davis 	campuses 	in violation of 	section
3571(b) 	and 	(c) 	of 	the Higher Education Employer-Employee
Relations Act 	(HEERA).1
1HEERA is codified at Government Code section 3560 et seq.
Section 3571 states, 	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.
HEERA
.,

The 	Board has 	reviewed the warning and dismissal 	letters,
UC-AFT's 	appeal 	and the 	entire 	record 	in this 	case. 	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-394-H 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair 	joined 	in this 	Decision.
Member Caffrey's 	dissent begins 	on page 	3.
(c) 	Refuse 	or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
22

CAFFREY, 	Member, 	dissenting: 	The original and amended
unfair practice 	charges 	filed by 	the 	University 	Council-American
Federation of Teachers' 	(UC-AFT) 	raise questions 	concerning the
status of the parties' 	March 21, 	1986, 	Letter of Understanding
(LOU) 	as of 	February 1994, 	the 	time of 	the complained of 	conduct
in this 	case. 	Consequently, 	I would reverse the regional
attorney's 	dismissal 	and 	remand the 	case 	to 	the 	Public 	Employment
Relations 	Board 	(PERB) 	general 	counsel 	for 	further 	investigation
of 	this 	question prior to 	issuance 	of 	a 	complaint 	or dismissal 	of
UC-AFT's 	charge.
A review of 	the March 	1986 	LOU reveals 	that 	it 	twice
mentions 	"provisions 	of 	the Memorandum of Understanding" 	between
UC-AFT and 	the 	Regents 	of 	the 	University of 	California
(University), 	and references a specific article and paragraph
(Article XXIX, 	Paragraph B) 	within that 	collective bargaining
agreement 	(CBA). 	Obviously, 	these references are to the CBA in
effect between the parties 	when the LOU was 	negotiated. 	The 	copy
of 	the 	LOU document 	included 	in 	the 	case 	file 	contains pagination
(A-4) 	and a typewritten date 	(August 1, 	1986). 	Apparently, 	the
LOU may have been 	included as 	part 	of 	a 	larger document, 	perhaps
in August 	1986. 	These 	circumstances 	suggest 	that 	the 	LOU was
negotiated by 	the parties 	in 	1986 	as 	an addendum or appendix 	to
the 	CBA in effect between 	them at 	that 	time.
Seven years 	later, 	in June 1993, 	UC-AFT was unaware of 	the
existence 	of 	the 	LOU when 	it 	first 	demanded that 	the University
bargain over 	the 	subject 	of 	contracting 	out 	bargaining unit 	work.
3
3

After 	the University provided a 	copy of 	the 	LOU, 	UC-AFT 	indicated
that 	it would no longer be bound by its 	terms, 	and in
February 	1994 	demanded 	that 	the University bargain 	over a
subsequent plan to 	contract 	out bargaining unit work. 	In
response, 	the University asserted that 	the 	LOU remained 	in effect
in February 1994, 	describing it as:
. 	. 	. 	simply another term and condition of
employment 	previously 	agreed 	to 	and 	executed
at 	the bargaining table. 	It, 	like other
provisions 	of 	the MOU which are not 	reopened
and renegotiated, 	simply 	continue 	in effect
as 	part 	of 	the MOU which binds both parties
for 	the new term of 	the agreement.
(Emphasis 	added.)
This 	response 	clearly indicates 	the University's view that 	the
LOU was 	negotiated as 	a provision of 	the CBA at 	some point, 	while
UC-AFT's 	unfamiliarity with 	it 	in June 	1993 	suggests 	that 	the 	LOU
had not been 	included within copies 	of 	the parties' 	written
agreement 	for some 	time.
The 	case 	file 	is 	devoid of 	information 	concerning any
discussions 	or negotiations 	between the 	parties 	with 	regard to
the 	subject matter addressed by the 	LOU, 	from the period of March
1986 	to June 	1993. 	Absent 	some 	inquiry into this area, 	under the
circumstances 	described above, 	I am unwilling 	to assign 	full
effectiveness 	to 	the 	LOU nearly eight years 	after 	it was 	agreed
to by the parties. 	Instead, 	I would remand the 	case 	to 	the 	PERB
general 	counsel 	for 	further 	investigation.
44

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3S30 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 6, 	1994
Edward R. 	Purcell
Labor Consultant, UC-AFT
419 Carroll Canal
Venice, 	CA 	90291
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-394-H, UC-AFT v. 	Regents of the University
of California
Dear Mr. Purcell:
In the above-referenced charge, 	filed on March 17, 	1994, 	and
amended on May 2, 	1994, 	UC-AFT alleges that the University of
California refused to bargain over contracting out at the
University's Riverside and Davis campuses in 1994. 	This conduct
is alleged to violate Government Code sections 3571(b) 	and 	(c) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).
I indicated to you, 	in my attached letter dated May 3, 	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 May 12, 	1994, 	the charge would
be dismissed. 	I later extended the deadline to May 26, 	1994.
On June 3, 	1994, 	I received from you a second amended charge,
accompanied by a letter. 	The allegations 	in the amended charge
and the arguments 	in the letter do not alter the analysis set
forth in my May 3 	letter. 	Certain points do bear further
discussion, however.
In the letter, 	you argue that there is something equivocal or
inconclusive about the waiver language in Article 38, 	Paragraph
E, 	of the collective bargaining agreement, 	as quoted in my May 3
letter. 	On its face, 	however, 	the language is clear and
unambiguous, 	and its plain meaning must be given effect.
Marysville Joint Unified School District 	(1983) 	PERB Decision No.
314; 	Los Rios Community College District 	(1988) 	PERB Decision No.
684. 	The charge contains no allegations of past practice or
bargaining history which suggest any ambiguities 	in the waiver
language.
(i)
•

LA-CE-394-H
June 6, 	1994
Page 2
In the amended charge, 	UC-AFT alleges that in February 1994 it
demanded to bargain over the impact of contracting out at the
Riverside campus. 	It cites the letter attached to the charge as
Attachment E, 	but this letter 	(quoted in full 	in my May 3 letter)
does not in fact say anything about impact or effects. 	Under
these circumstances, 	it cannot be said that the University
refused to bargain over impact or effects. 	Newman-Crows Landing
Unified School District 	(1982) 	PERB Decision No. 	223.
In the amended charge, 	UC-AFT also alleges that in April 1994 it
demanded to bargain over the impact of contracting out at the
Davis campus. 	In this instance, 	the allegation is consistent
with the letter it cites, 	attached to the charge as Attachment H.
The status quo established by the 1986 	letter of understanding,
however, 	was that impact 	"shall be governed by the express
provisions of the Memorandum of Understanding," unless 	"the AFT
identifies a significant impact on the terms and conditions of
employment of 	the unit members which is not covered by the
express provisions of the Memorandum of Understanding," 	in which
case negotiations regarding the impact shall occur but 	"shall not
delay the implementation." 	In neither of 	its letters of February
1994 and April 1994, nor in the present charge, 	has UC-AFT
identified any impact not 	covered by the 	collective bargaining
agreement.
In the letter, 	you also argue that the University apparently
bypassed UC-AFT, 	because the University's 	letter informing UC-AFT
of the proposed 	"cooperative agreement" with Sacramento City
College stated in part, 	"Preliminary discussions have also
included a review of the impact on existing staff." 	There is no
allegation or evidence, 	however, 	that these "preliminary
discussions" were with members of the bargaining unit represented
by UC-AFT, 	rather than simply among University managers.
I am therefore dismissing the charge, 	based on the facts and
reasons contained in this letter and my May 3 	letter.
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:
(

LA-CE-394-H
June 6, 	1994
Page 3
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.)
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 Attorney
Attachment
( 	(

STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
May 3, 	1994
Edward R. 	Purcell
Labor Consultant, UC-AFT
419 Carroll Canal
Venice, 	CA 	90291
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-394-H,
UC-AFT v. 	Regents of the University of California
Dear Mr. Purcell:
In the above-referenced charge, 	filed on March 17, 	1994, and
amended on May 2, 	1994, 	UC-AFT alleges that the University of
California refused to bargain over contracting out at the
University's Riverside and Davis campuses in 1994. 	This conduct
is alleged to violate Government Code sections 3571(b) 	and 	(c) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).
My investigation of this charge reveals the following facts.
UC-AFT is the exclusive representative of employees in the
University's Bargaining Unit 18. 	In June 1993, 	UC-AFT became
aware of a 	"cooperative agreement" between the University's Davis
campus and Sacramento City College. 	On June 25, 	1993,
UC-AFT sent the University a letter, 	stating in part that the
cooperative agreement:
represents the contracting of Unit 18 work,
and as such, 	cannot be properly accomplished
without prior bargaining with our Union.
This letter constitutes a request to engage
in such bargaining prior to the 	finalization
of plans or contracts to move English A work
out of Unit 18.
On June 29, 	1993, 	the University responded in part as follows:
You may not be aware of the fact that the
University and the UC-AFT entered into a
Letter of Understanding in 1986 which covers
this type of situation. 	For your
convenience, 	I enclose a copy of the Letter
of Understanding. 	As you can see, 	the
University is not obligated to bargain with
the union prior to implementation. 	The
University is obligated to meet and discuss
,,
•
I 	.
\

LA-CE-394-H
May 3, 	1994
Page 	2
regarding the proposal, 	and we will do so 	if
you wish. 	Furthermore, 	any impact on unit
members 	which 	results 	from the 	implementation
of an agreement, 	such as 	the 	one planned by
the UC Davis 	campus, 	is governed by the
express provisions of 	the MOU. 	The
University's 	implementation 	of 	the planned
agreement 	will 	not 	be 	delayed by 	discussions
between 	the University and the 	union.
The 	enclosed 	letter of understanding, 	signed by UC-AFT and the
University on March 21, 	1986, 	stated in full as 	follows:
It 	is 	the 	intent 	of 	the undersigned that 	any
decision by 	the University 	to 	enter 	into 	an
Agreement(s) 	with another entity 	for the
purpose 	of providing educational 	services 	to
the 	University 	is 	a non-enumerated Management
Right 	covered by Article XXIX, 	Paragraph B.
Before any decision to 	enter 	into an
agreement with another entity to provide
educational services is made final, 	the
University agrees 	to give notice 	to 	the
UC/AFT and upon 	request 	to meet 	and discuss
concerning 	the proposal.
•
It 	is 	agreed that 	any 	impact 	on a member or
members 	of 	the bargaining unit 	as a 	result 	of
the 	implementation of 	such an agreement 	to
provide 	educational 	services 	shall be
governed by the 	express provisions 	of 	the
Memorandum of 	Understanding 	entered 	into by
the University and the UC/AFT.
In 	the 	event 	that 	the AFT identifies 	a
significant 	impact 	on the 	terms 	and
conditions 	of 	employment 	of 	the unit members
which 	is 	not 	covered by the provisions 	of 	the
Memorandum of Understanding, 	the parties
agree 	that 	negotiations 	regarding 	the 	impact
shall 	not 	delay the 	implementation of 	the
Agreement 	reached 	regarding 	the provision 	of
educational 	services.
The undersigned agree 	that 	liability 	for 	the
terms 	of Agreements 	between 	the University
and other entities 	for 	the provision of
educational 	services 	extends 	to 	the parties
to 	those Agreements 	and not 	to 	the UC/AFT.
(
	(

LA-CE-394-H
May 3, 	1994
Page 3
Nothing 	in this 	Letter 	of 	Understanding
precludes 	the 	UC/AFT 	from pursuing applicable
statutory 	remedies.
In a letter dated July 12, 	1993, 	UC-AFT acknowledged that 	"this
agreement 	covers 	the Davis 	situation presently at 	hand" 	but
stated:
please be 	informed 	that 	UC-AFT will 	no 	longer
consider 	the 	document 	to be valid and binding
effective this date. 	In that 	context, 	we
will 	no 	longer abide by 	its 	content,
including 	the various waivers 	of 	union
bargaining 	rights 	contained 	therein.
During this same period of time 	(the summer of 	1993), 	UC-AFT
and 	the 	University 	negotiated 	a 	new 	collective 	bargaining
agreement. 	The parties did not, 	however, 	negotiate any change in
Article 29 	(Management Rights), 	Paragraph B, 	which stated as
follows:
The 	foregoing 	enumeration of management
rights 	is not 	inclusive and does not 	exclude
other management 	rights not 	specified, 	nor
shall 	the exercise 	or non-exercise 	of 	rights
retained by 	the University be 	construed 	to
mean 	that 	any right 	is 	waived.
Article 38 	(Waiver), 	Paragraph E, 	stated as follows:
Except 	as 	otherwise provided 	for 	in this
Memorandum of Understanding, 	or upon mutual
consent 	of 	the parties 	to 	seek written
amendment 	thereto, 	the University and the
UC-AFT, 	for the life of this Memorandum of
Understanding, 	each voluntarily and
unqualifiedly waives 	the right, 	and each
agrees 	that 	the 	other shall 	not be obligated,
to bargain 	collectively with 	respect 	to 	any
subject 	or matter 	referred 	to 	or 	covered 	in
this Memorandum of Understanding, 	or with
respect 	to any subject 	or matter not
specifically 	referred 	to 	or 	covered by 	this
Memorandum of Understanding, 	even though such
subject 	or matter may not 	have been within
the 	knowledge 	or 	contemplation of 	either or
both of 	the parties 	at 	the 	time 	they
negotiated or 	signed 	this 	Memorandum of
Understanding.
( 	(

LA-CE-394-H
May 3, 	1994
Page 4
By its terms, 	the agreement remains in full force and effect
until June 30, 	1997, with the opportunity to reopen in 1996.
In February 1994, 	UC-AFT sent the University the following
letter:
It has come to the Union's attention that the
Riverside campus is presently exploring the
possibility of 	contracting out 	its Subject A
program to a local 	community college or to
its extension program. 	Please be informed
that UC-AFT believes that this 	issue must be
bargained with the Union prior to the
movement of the Subject A program outside the
University or its reassignment 	to extension.
If the University elects such a course, 	you
may consider this letter to constitute a
demand to bargain.
The University responded in relevant part as follows:
As you are well aware, 	you were informed by
me last summer 	(July 20) 	the Letter of
Understanding on this subject is simply
another term and condition of 	employment
previously agreed to and executed at 	the
bargaining table. 	It, 	like other provisions
of the 	MOU which are not reopened and
renegotiated, 	simply continue in effect as
part of the MOU which binds both parties 	for
the new term of the agreement.
Pursuant to the current agreement, 	the
contract is now "locked up" until 1996. 	In
keeping with the Waiver Article of the
contract, 	the University is under no
obligation to bargain with the Union about
this matter.
In April 	1994, 	when UC-AFT similarly demanded to bargain over a
new "cooperative agreement" between the University's Davis campus
and Sacramento City College, 	the University relied on the same
response.
Based on the facts stated above, 	the charge does not state a
prima facie violation of HEERA, 	for the reasons that follow.
In Los Rios Community College District 	(1988) 	PERB Decision
No. 	684, 	PERB upheld a "zipper" or "waiver" clause, 	like the one
( 	(

C
LA-CE-394-H
May 3, 	1994
Page 5
in Article 38 of the agreement between UC-AFT and the University,
as:
affording both parties the right 	to refuse to
negotiate changes in the status quo as to
otherwise negotiable terms and conditions of
employment for the duration of the agreement
(subject to reopener provisions), whether
such terms and conditions are established by
contract or by past practice.
Under the waiver clause, 	the University could therefore legally
refuse to bargain with UC-AFT, 	unless the University was
unilaterally changing a policy within the status quo.
It appears from the charge that in 1986 the status quo was
established by bilateral agreement between UC-AFT and the
University: 	in the letter of understanding, 	the parties agreed
that under Article XXIX, 	Paragraph B, 	of the collective
bargaining agreement 	the University had a management 	right 	to
"enter into an agreement with another entity to provide
educational services." 	It also appears that this status quo
continued, 	at least as a matter of University policy and
practice, 	into 1993, 	when the University entered into the first
"cooperative agreement" with the Sacramento City College. 	UC-AFT
apparently contends, 	however, 	that this status quo was changed in
the summer of 1993, 	when UC-AFT repudiated the 1986 letter of
understanding.
A similar contention was before PERB in Santa Maria Joint
Union High School District 	(1985) 	PERB Decision No. 	507. 	In that
case, 	the parties had an apparent bilateral understanding that
the layoff provision in their collective bargaining agreement
covered reductions in hours. 	During negotiations, 	the union gave
notice that 	it would no longer consider reductions 	in hours 	to be
covered by the layoff provision, 	but the employer did not agree
to this change in policy. 	PERB held that, 	in the absence of
bilateral agreement to change the policy, 	the policy remained in
effect, 	and action consistent with the policy was not a
unilateral change.
In the present case, 	the parties had a letter of
understanding stating that 	the University had a management 	right
under Article XXIX, 	Paragraph B, 	of the collective bargaining
agreement 	to 	"enter into an agreement with another entity to
provide educational services." 	Under Santa Maria Joint Union
High School District, supra, UC-AFT's unilateral repudiation of
the letter of understanding did not in itself change the
University's policy. 	The University did not agree to change the
policy, 	and the relevant Paragraph B remained unchanged in the
( 	(

. .
LA-CE-394-H
May 3, 	1994
Page 6
collective bargaining agreement. 	It therefore cannot be said
that the University's actions in 1994, 	which were consistent with
the established policy, 	represented a unilateral 	change about
which the University had a duty to bargain.
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
amended charge should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled Second 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 May 12, 	1994, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
THOMAS J. ALLEN
R e g i o n a l 	A t t o r n e y
I
V 	I