University of California (University of California-American Federation of Teachers) (PERB 1077H)

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. 	SF-CE-340-H
PERB Decision No. 	1077-H
December 16, 	1994
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
Regents 	of 	the University of 	California.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the
Regents 	of 	the University of 	California 	(University) 	to a 	PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto). 	The ALJ found that 	the memorandum of understanding
(MOU) 	between the University Council 	- 	American Federation of
Teachers 	(UC-AFT) 	and the University was 	silent 	regarding merit
reviews 	for post 	six-year 	lecturers 	receiving 	their 	third 	or
subsequent 	three-year appointment. 	The ALJ 	then 	found 	that 	the
University violated section 3571(a), 	(b) 	and 	(c) 	of the Higher
Education Employer-Employee Relations Act 	(HEERA)1 when it
HEERA 	is 	codified at Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571 states, 	in pertinent part:
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unilaterally 	adopted 	a policy 	changing 	the 	eligibility
requirements 	of merit 	reviews 	for such employees.
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.
For purposes of this 	subdivision, 	"employee"
includes 	an applicant 	for employment 	or
reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring 	with an 	exclusive 	representative.
To 	remedy the violation, 	the ALJ ordered the University to
provide 	the 	lecturers 	affected by 	the 	policy 	change 	an
opportunity 	for merit 	review unless 	UC-AFT and 	the 	University
agreed 	to modify 	the 	policy.
Upon review of 	the 	entire 	record in this 	case, 	including the
proposed decision, 	the exceptions 	filed by the University and UC-
AFT's 	responses 	thereto, 	the Board finds 	the ALJ's 	findings 	of
fact 	to be 	free 	from prejudicial 	error, 	and adopts 	them as 	the
decision 	of 	the 	Board 	itself. 	Consistent 	with 	the 	following
discussion, 	we affirm the ALJ's 	conclusions 	of 	law with the
exception of 	the 	remedy as 	discussed below.
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UNIVERSITY'S 	EXCEPTIONS
In 	its 	exceptions 	to the Board, 	the University argues 	that
the ALJ erred 	in 	finding 	that 	the MOU did not 	address merit
reviews 	for post 	six-year 	lecturers 	receiving 	their 	third or
subsequent 	three-year appointment. 	The 	University also 	argues
that 	the ALJ erred 	in requiring 	the 	University 	to 	conduct merit
reviews 	for 	lecturers 	at 	the 	Santa Barbara 	campus 	who were
adversely affected by 	the 	February 	7, 	1992 	policy which dictated
that 	post 	six-year 	lecturers 	under 	consideration 	for 	receiving
their 	third 	or 	subsequent 	three-year appointment 	would be
eligible 	for merit 	review only 	in 	exceptional 	circumstances.
The 	University argues 	that 	the 	ALJ 	correctly 	determined 	that
the parties 	had never 	reached agreement 	on merit 	review 	for 	these
lecturers. 	As 	such, 	the University finds 	that 	the ALJ's 	remedy
requiring 	that merit 	reviews be 	conducted, 	not 	only exceeds 	the
requirements 	of 	the MOU as 	the ALJ constructs 	it, 	but 	the 	remedy
is 	also 	inconsistent 	with the 	logic and 	findings 	of 	the proposed
decision.
UC-AFT'S 	OPPOSITION TO 	EXCEPTIONS
In response, 	UC-AFT argues 	that 	the ALJ was within her power
to order the University to conduct merit 	reviews 	of 	the 	13
lecturers. 	UC-AFT argues 	that a narrow approach, 	as argued by
the University, 	would not 	only result 	in an 	injustice 	to 	the
affected lecturers, 	but would also undermine 	the policies 	of
HEERA. 	Further, 	UC-AFT asserts 	that 	the ALJ's 	remedy only calls
for 	lecturers 	to be 	granted an 	opportunity 	to be 	considered 	for a
33

merit 	salary 	review 	increase 	as 	opposed 	to 	having 	such an
increase 	automatically 	granted.
DISCUSSION
After a 	review of 	the 	record, 	the Board concurs 	in 	the ALJ's
assessment 	that 	the MOU between the parties 	is 	silent 	as 	to merit
reviews 	for post 	six-year lecturers 	who are 	receiving 	their 	third
or subsequent 	three-year appointment. 	It appears 	that 	this 	topic
was 	never discussed 	or addressed by 	either party 	in 	any
negotiating 	setting.
However, 	the Board disagrees with the ALJ's proposed remedy.
The ALJ 	states 	that 	ordering all 	post 	six-year 	lecturers 	who 	have
received 	their 	third 	three-year 	appointments 	an 	opportunity 	for
merit 	review pursuant 	to 	the 	policy 	established by 	the 	1991-93
MOU is 	only providing an 	opportunity 	for 	those 	lecturers 	to be
considered 	for a merit 	increase.
HEERA section 3563.3 	empowers 	PERB 	to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from the
unfair practice and 	to 	take 	such affirmative
action, 	including, 	but not limited to, 	the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
The 	Board agrees 	with 	the ALJ 	that 	it 	is appropriate 	to
order 	the 	University 	to 	cease 	and desist 	from unilaterally
instituting 	new polices 	regarding 	items 	which are 	within 	the
scope of 	representation. 	Further, 	the Board finds 	that 	the
University must 	make 	itself 	available 	for 	immediate 	negotiations
with UC-AFT concerning merit 	reviews 	for the 	lecturers 	at 	issue
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here. 	However, 	as 	stated earlier, 	the Board finds 	that 	since the
contract 	is 	silent 	on this matter, 	the University is not 	legally-
obligated 	to do more at 	this 	point 	other 	than 	to meet 	and 	confer.
Accordingly, 	the ALJ's 	remedy of providing merit 	review for
lecturers 	is 	hereby 	reversed.
ORDER
Based on the 	findings 	of 	fact, 	conclusions 	of 	law and the
entire 	record in this 	case, 	the Board finds 	that 	the Regents 	of
the University of 	California 	(University) 	violated the Higher
Education Employer-Employee Relations Act 	(HEERA), 	Government
Code section 3571(a), 	(b) 	and 	(c).
Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED that
the University, 	its agents and its 	representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet 	and confer in good 	faith with the
University Council 	- 	American Federation of 	Teachers 	(UC-AFT)
over a merit 	review policy 	for unit 	18 members who are post 	six-
year 	lecturers 	on 	their 	third 	or 	subsequent 	three-year
appointment 	at 	the 	Santa Barbara 	campus.
2. 	Denying UC-AFT its 	right 	to 	represent unit 	18
members 	at 	the 	Santa Barbara 	campus 	by 	failing 	to meet 	and 	confer
about matters 	within 	the 	scope 	of 	representation.
3. 	Interfering with the right 	of unit 	18 members 	at
the 	Santa Barbara 	campus 	to 	select 	an exclusive 	representative by
failing 	to meet 	and negotiate 	about 	matters 	within 	the 	scope 	of
representation with UC-AFT.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE HEERA:
1. 	Immediately rescind the merit 	review policy adopted
for unit 	18 	employees at 	the 	Santa Barbara 	campus 	on February 	7,
1992, 	and make 	itself available 	for immediate negotiations with
UC-AFT concerning merit 	reviews 	for unit 	18 members 	who are post
six-year 	lecturers 	on their 	third 	or 	subsequent 	three-year
appointment 	at 	the Santa Barbara 	campus.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no 	longer subject 	to reconsideration, 	post 	at
all 	work 	locations where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached hereto an as Appendix. 	The
Notice must 	be 	signed by an authorized agent 	of 	the University
indicating 	that 	the 	University will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps 	shall be taken to
insure that 	this Notice is not 	reduced in size, 	defaced, 	altered
or 	covered by any material.
3. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	San 	Francisco Regional 	Director of
the 	Public 	Employment 	Relations 	Board 	in accordance with her
instructions. 	All 	reports 	to the Regional 	Director shall be
served 	concurrently 	on UC-AFT.
Chair Blair and Member Caffrey 	joined 	in this 	Decision.
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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. 	SF-CE-340-H,
University Council 	- 	American Federation of 	Teachers v. 	Regents
of 	the University of 	California, 	in which all 	parties had the
right 	to participate, 	it 	has been found that 	the Regents 	of 	the
University of 	California 	(University) 	violated 	the 	Higher
Education Employer-Employee Relations Act 	(HEERA), 	Government
Code section 3571(a), 	(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	to meet 	and 	confer 	in good 	faith with 	the
University Council 	- 	American Federation of 	Teachers 	(UC-AFT)
over a merit 	review policy 	for unit 	18 	members 	who are post 	six-
year 	lecturers 	on 	their 	third 	or 	subsequent 	three-year
appointment 	at 	the 	Santa Barbara 	campus.
2. 	Denying UC-AFT 	its 	right 	to 	represent unit 	18
members 	at 	the 	Santa Barbara 	campus 	by 	failing 	to meet 	and 	confer
about matters 	within 	the 	scope 	of 	representation.
3. 	Interfering with the 	right 	of unit 	18 members at
the 	Santa Barbara 	campus 	to 	select 	an 	exclusive 	representative by
failing 	to meet 	and negotiate 	about matters 	within 	the 	scope 	of
representation with 	UC-AFT.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF HEERA:
1. 	Immediately 	rescind 	the merit 	review policy adopted
for unit 	18 	employees 	at 	the 	Santa Barbara 	campus 	on February 	7,
1992, 	and make 	itself 	available 	for 	immediate negotiations 	with
UC-AFT 	concerning merit 	reviews 	for unit 	18 	members 	who 	are post
six-year 	lecturers 	on 	their 	third 	or 	subsequent 	three-year
appointment 	at 	the 	Santa 	Barbara 	campus.
Dated: 	REGENTS 	OF THE 	UNIVERSITY 	OF
CALIFORNIA
By:. Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	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
UNIVERSITY COUNCIL 	- 	AMERICAN
FEDERATION OF TEACHERS,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-340-H
PROPOSED 	DECISION
(10/13/93)
Appearances; 	Leonard, 	Carder, 	Nathan, 	Zuckerman, 	Ross, 	Chin &
Remar, 	by Ann Casper, 	Attorney for University Council 	- 	American
Federation of Teachers; 	Marcia J. 	Canning,.University Counsel,
for 	the Regents 	of 	the University of 	California.
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
This 	case 	involves merit 	reviews 	for lecturers 	in bargaining
unit 	18 at 	the University of California, 	Santa Barbara campus.
Specifically, 	the 	controversy stems 	from the University's
promulgation of a policy on February 7, 	1992, 	precluding merit
reviews 	for post 	six-year 	lecturers 	during 	their 	third and
subsequent 	three-year appointments 	except 	in 	"exceptional
circumstances."
At 	issue 	is 	the meaning and 	intent 	of 	language 	in Article
XXIII 	of 	the 	1991-93 	Memorandum of Understanding 	(MOU) 	pertaining
to merit 	review eligibility 	for post 	six-year lecturers. 	Section
C.I 	of Article XXIII 	requires 	that post 	six-year lecturers 	have
at 	least 	one merit 	review coincident with both 	their 	first 	and
second three-year appointments. 	Also at 	issue 	is 	the
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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applicability of 	section F of Article XXIII 	to merit 	reviews 	for
post 	six-year 	lecturers 	beyond 	the 	two mandated 	in 	section C.1.
Charging 	Party takes 	the position 	that Article XXIII 	is
silent 	regarding merit 	reviews 	for post 	six-year 	lecturers
receiving 	their 	third 	and 	subsequent 	three-year appointments.
Hence, 	the February 7, 	1992, 	policy constitutes an unlawful
unilateral 	change 	and an alteration of 	past practice.
The 	Respondent maintains 	that 	adoption of 	the policy was
within 	its 	authority as 	contractually agreed 	to by 	the 	parties.
This position 	is based on 	its 	interpretation of 	section C.1,
which 	it 	argues 	provides 	a 	comprehensive 	treatment 	of 	the 	subject
in 	clear and unambiguous 	terms.
PROCEDURAL 	HISTORY
On March 23, 	1992, 	University Council 	- American Federation
of 	Teachers 	(Charging 	Party or UC-AFT) 	filed this unfair practice
charge against 	the Regents 	of 	the University of 	California
(Respondent 	or University). 	The 	charge alleged that 	the
Respondent violated section 	3571(a) 	of 	the Higher Employer-
Employee 	Relations Act 	(HEERA or Act)1 by unilaterally modifying
the 	terms 	and 	conditions 	of 	employment 	contained 	in 	the parties
MOU for unit members 	at 	Respondent's 	Santa Barbara 	campus.
On April 29, 	1992, 	the Office of the General Counsel 	of 	the
Public Employment Relations Board 	(PERB 	or Board) 	issued a
complaint. 	It alleged that on February 27, 	1992, 	Respondent
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
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changed 	the 	policy 	concerning 	reviews 	for merit 	salary 	increases
for 	certain post-six year 	lecturers. 	The 	new policy 	denied
reviews 	on 	a 	classwide basis 	and 	granted 	individual 	employees
reviews 	only 	in 	"exceptional 	circumstances." 	This 	change
allegedly was 	in violation of 	section 3571(a) 	and 	(c).2
Respondent 	filed an answer 	to 	the 	complaint 	on May 20, 	1992,
denying 	all 	material 	allegations 	and 	raising various 	affirmative
defenses.
An 	informal 	settlement 	conference was 	held 	on June 	30, 	1992,
but 	the 	dispute 	was 	not 	resolved. 	A 	formal 	hearing was 	conducted
by the undersigned October 20, 	21, 	and 22, 	1992.3 Both parties
2 Section 3571 	states, 	in pertinent 	part:
3571. 	UNLAWFUL 	EMPLOYER 	PRACTICES
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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive 	representative.
3 At 	the 	close 	of 	the 	hearing, 	Charging 	Party was 	allowed 	to
amend 	the 	complaint 	to 	conform to proof, 	changing 	the 	date 	of
Respondent's 	unilateral 	action 	from 	February 	27 	to 	February 	7,
1992.
Charging 	Party 	also 	renewed 	its 	motion 	to 	amend 	the
complaint 	to 	add 	an 	allegation 	of 	discrimination 	as 	an
w3

filed post-hearing briefs 	and 	the matter was 	submitted 	for
decision on January 21, 	1993.
independent violation of 	section 3571(a). 	The motion was denied.
The denial was based on the 	same grounds 	set 	forth in a written
denial by the undersigned on July 22, 	1992, 	of the same motion.
FINDINGS 	OF 	FACT
Background
The parties 	stipulated, 	and it 	is 	found, 	that Respondent 	is
a higher 	education 	employer and 	the 	Charging 	Party 	is 	an 	employee
organization within the meaning of 	section 3562 (j). 	UC-AFT is
the 	exclusive 	representative 	of 	a 	statewide 	unit 	of 	non-academic
instructional 	employees designated as unit 	18. 	The majority of
the members 	of 	this 	unit 	are 	lecturers whose primary 	function 	is
teaching, 	as opposed to research. 	Members 	of this unit have a
variety of 	titles 	and positions, 	such as 	demonstration teacher
and 	supervisor of 	teacher education, 	which relate 	to various
special 	programs 	of 	the University.
Unlike 	the 	senate or tenure-track faculty, 	unit 	18 members
do 	not 	share 	governance with 	the University administration
through the academic 	senate. 	Nor are unit 	18 members 	subject 	to
progressive 	rank or wage-step 	increases, 	as are 	the 	tenure-track
faculty. 	Thus, 	the only avenue 	for salary advancement 	for these
employees 	is 	through the periodic 	cost 	of 	living provisions
applicable 	to all 	University 	faculty and merit 	increases.
UC-AFT 	and 	the 	University negotiated 	their 	initial 	MOU,
effective July 1, 	1986.
44

Prior to 	this 	agreement, 	members 	of 	the unit were 	employed
by 	the 	University pursuant 	to 	individual 	employment 	contracts
ranging 	in length from one-quarter or semester to, 	at most, 	two
years. 	One of 	the major changes negotiated in the 	1986 MOU was 	a
measure 	of 	job 	security 	for unit members 	who have 	completed 	six
years 	with 	the University. 	If 	such members pass 	a 	rigorous
review at 	the 	six-year mark, 	they are 	thereafter entitled 	to
three-year appointments, 	provided that 	there 	is 	a continuing
instructional 	need 	for their positions 	and 	that 	they 	continue 	to
be 	accessed 	"excellent" 	at 	each three-year mark.
The Merit Article 	of 	the MOU
The 	subject 	of merit was 	of 	substantial 	concern to both
parties 	when 	they negotiated 	the 	first MOU. 	That MOU 	included a
separate merit 	article. 	A separate merit article 	in a MOU was
relatively unique 	among MOUs 	within 	the 	University 	system 	in 	1986
and 1987.
During the 	1987 	reopener negotiations, 	the merit 	article
was 	renegotiated and 	substantially 	revised. 	UC-AFT was 	intent 	on
guaranteeing regular merit 	reviews 	and salary increases. 	The
University wanted 	to maintain 	the maximum degree 	of 	discretion
for 	the 	individual 	campuses 	regarding appointments 	and merit
reviews.
In the July 1, 	1987, 	to June 30, 	1990 MOU, 	the parties
agreed to merit 	language which read, 	in relevant part, 	as
follows:
55

Article XXIII. 	MERIT
A. 	For 	those 	faculty/instructors 	in 	the
unit 	who 	are 	eligible 	for merit
increases, 	such increases are based on
academic attainment, 	experience and
performance, 	and are not automatic.
B. 	Decisions 	to grant 	or not 	grant 	a merit
increase, 	and the amount and effective
date of such increase, 	if granted, 	are
at 	the 	sole discretion of 	the
University.
C. 	Faculty/instructors 	in 	the unit will 	be
subject 	to merit 	reviews 	as 	follows:
1. 	A faculty/instructor 	in the unit,
unless 	covered by Section C.3.,
will 	be 	subject 	to at 	least 	one
merit 	review 	coincident 	with 	or
during the first post, six-year
three-year 	appointment 	which
commences 	on or after July 1, 	1988.
A merit 	review will 	also be
conducted 	coincident 	with 	or 	during
the 	second post 	six-year 	three-year
appointment, 	provided that 	the
faculty-instructor 	in 	the unit 	is
still 	being 	considered 	for
reappointment 	pursuant 	to Article
VII. 	Consideration for merit
reviews 	in addition to 	those above
will 	be at 	the 	sole 	discretion of
the University.4 (Underlining
added.)
D. 	The UC-AFT shall 	be provided 	copies 	of
campus 	procedures 	for merit 	review as
they 	exist 	or as 	they are 	developed.
The nature 	of 	such procedures 	shall 	be
at 	the 	sole 	discretion of 	the
University. 	Existing procedures 	shall
be 	forwarded 	to 	the 	UC-AFT by January 	1,
1988.
4This 	dispute 	stems 	from the 	different 	interpretations 	that
the parties 	have given to 	the 	text underlined, 	supra.
66

Except 	for minor modifications, 	which are 	irrelevant 	to 	this
case,5 the 	language 	of Article XXIII has 	remained relatively
unchanged. 	In the current MOU, 	section C.1 reads:
C. 	Faculty/instructors 	in the unit will 	be
subject 	to merit 	reviews as 	follows:
1. 	A faculty/instructor 	in the unit,
unless 	covered by Section C.3.,
will 	be 	subject 	to at 	least 	one
merit 	review 	coincident 	with or
during 	the 	first 	and 	second post
six-year 	three-year appointments,
provided 	that 	the 	faculty/
instructor 	in the unit 	is 	still
being 	considered 	for 	reappointment
pursuant 	to Article VII. 	Any
faculty/instructor 	in 	the unit 	who
is not 	granted a 	review pursuant 	to
this 	Section may 	seek 	resolution
through 	the 	designated University
Official 	at 	the 	campus 	as 	listed 	in
Appendix H. 	Consideration 	for
merit 	reviews 	in addition to 	those
above will 	be at 	the 	sole
discretion of 	the University.
Other pertinent 	provisions 	of Article XXIII 	read as 	follows
D. 	The UC-AFT 	shall 	be provided 	copies
of 	applicable 	campus 	procedures 	as
they are 	developed. 	Any 	changes 	to
existing procedures 	shall 	be
provided 	to 	the 	UC-AFT within a
month of 	finalization. 	A
faculty/instructor 	in 	the unit may
request a 	copy of 	the 	applicable
campus merit review procedure(s).
The nature 	of 	such procedures 	shall
be at 	the 	sole discretion of 	the
University.
E. 	No later than November 15 	of 	each
year, 	each campus will provide the
UC-AFT with a 	list 	of 	faculty/
instructors 	in 	the unit who were
5Article XXIII 	was 	amended during 	the 	1989 	reopener
negotiations.
77

reviewed 	for merit 	during 	the
previous academic year. 	The
information will 	include 	the
campus, 	the faculty/instructor in
the unit's name, 	department,
whether the 	individual 	was 	granted
a merit 	increase 	or not, 	and the
amount 	of 	any such 	increase.6
Sections 	E 	and 	F 	in 	the 	1987-90 	MOU were 	relettered as
sections 	F and G 	in 	the 	1991-93 	MOU.
F. 	The provisions 	of 	this Article are not
intended 	to preclude 	consideration 	for
merit 	review for the members 	of 	this
bargaining unit.
G. 	The provisions 	of 	this Article are not
subject to Article XXIII. 	Grievance
Procedure 	or Article XXIV. 	Arbitration.
Relevant 	Bargaining 	History Regarding 	the Merit 	Article
Because 	the parties 	disagree 	about 	the 	interpretation and
applicability of 	certain sections 	of Article XXIII 	to merit
reviews 	for post 	six-year 	lecturers 	on 	third and 	subsequent
three-year appointments, 	it 	is appropriate to consider evidence
about 	the negotiations 	that 	led to 	the development 	of 	these
contractual 	provisions.
Between 	1987 	and 	1991 	the parties 	had three 	sets 	of
negotiations 	that 	included bargaining 	over 	the provisions 	of
Article XXIII. 	The 	following 	findings 	of 	fact about 	this history
are 	based on a voluminous 	amount 	of 	testimony and documentary
evidence.
The 	1987 	Negotiations
UC-AFT's 	initial proposal 	of April 	7, 	1987, 	was concerned
with guaranteeing 	regular 	(biannual) 	merit 	reviews 	and minimum
8

percentage 	increases 	for unit members 	in post 	six-year
appointments 	and 	securing 	the 	establishment 	of 	review procedures7
for pre 	six-year appointees. 	UC-AFT also proposed 	that Article
XXIII 	be 	subject 	to 	the 	contractual 	grievance/arbitration
procedure.
In its initial proposal of May 1, 	1987, 	the University
responded 	to UC-AFT by agreeing 	to a merit 	review 	for post 	six-
year lecturers. 	During this 	session, 	Sarah Jo Gilpin-Bishop
(Gilpin-Bishop), 	director of 	systemwide labor relations and chief
negotiator 	for all 	negotiations with UC-AFT, 	stated 	that 	the
University's 	commitment 	to 	the 	review was 	a major 	concession 	from
its 	"sole discretion" 	language 	in the 	1986 MOU. 	The University
specifically proposed 	the 	following 	language 	for 	section 	C.1: 	"A
lecturer 	or a 	senior 	lecturer 	in 	the unit 	on a post 	six-year
three-year appointment 	normally will 	be 	subject 	to a merit 	review
prior 	to a 	subsequent 	appointment." 	Gilpin-Bishop 	explained 	that
the use 	of 	the 	term 	"normally," 	would give 	the University
flexibility to do 	"accelerations, 	decelerations, 	deferrals and
caps" 	with merits, 	and also preserve the variances 	in campuses'
review practices, 	i.e., 	every two or every three years.
7According to Eric Schroeder, 	a member of 	the UC-AFT
bargaining 	team in 	1987 	and 	1989, 	UC-AFT understood the 	term
"procedures" 	to mean the 	following:
A. 	By 	"procedures," 	we meant written 	-- 	the
written regulations 	for merit, 	in other
words, 	what would be 	required of people 	for
merit, 	the time lines for this, 	what
documents 	they would have 	to provide 	for 	such
a review. 	I think that's 	it. 	(Hearing
Transcript, Vol. I, p. 13 0.)
99

The University's May 	1 proposal 	also divided members 	of 	the
unit 	into three distinct groups 	-- 	post 	six-year, 	pre six-year
and-non-lecturers. 	Even though it was agreeing 	to merit 	reviews
for post 	six-year three-year appointees, 	the University was 	still
concerned about maintaining 	its 	"sole 	discretion" 	about 	the
timing of 	such merit 	reviews 	and the amount 	of merit 	increases,
if 	granted. 	The University also opposed application of 	the
grievance/arbitration procedure 	to Article 	XXIII.
Early in these negotiations, 	the parties 	reached agreement
over 	the 	language 	of 	sections 	A and B 	which 	eventually appeared
in the 19 87 MOU.
After further exchange of proposals, 	at the May 21, 	1987,
session, 	the 	University presented a 	substantially 	revised
proposal 	containing the 	language 	in sections C.1, C.2, 	and C.3.
The 	proposed 	language 	for 	section 	C.1 	replaced 	the 	word
"normally" 	with 	the phrase 	"at 	least 	one." 	The University 	felt
that 	this 	phrase provided a better 	"time 	frame" 	for 	conducting
merit 	reviews 	for employees 	during 	each 	three-year appointment.
This 	language would guarantee 	lecturers 	on post 	six-year
appointments 	at 	least 	one merit 	review sometime 	during 	the period
of 	both 	the 	first 	and 	the 	second 	three-year appointments.
The 	University also proposed an 	implementation 	date 	of
July 1, 	1988, 	for the 	commencement 	of 	the mandatory merit
reviews. 	During the May 21 session, 	Gilpin-Bishop explained that
this 	date was 	necessary to accommodate 	the 	fact 	that 	some post
six-year 	lecturers 	had already 	received 	their 	first 	three-year
10

appointments, 	effective July 1, 	1987, 	without having had a merit
review. 	A definite 	implementation date was 	needed 	to 	insure 	that
all 	unit members 	would be 	treated alike.
She also explained, 	to UC-AFT's 	surprise, 	that 	there was no
established 	systemwide practice 	for 	the 	timing 	of merit 	reviews.
Some 	campuses 	did reviews 	on a 	two-year cycle and others, 	on a
three-year cycle. 	Some 	campuses 	did separate 	reviews 	for merit,
while 	others 	did 	it 	with 	the post 	six-year 	review 	for
appointment.
In presenting 	the proposed 	language 	in 	section C.1 which
reads, 	"Consideration for merit 	reviews 	in addition to those
above will be at 	the 	sole discretion of 	the University," 	Gilpin-
Bishop 	explained 	that 	some 	campuses 	would be 	doing 	additional
reviews 	beyond 	the 	two mandated by 	the 	language 	in 	the 	first 	part
of 	C.1. 	This 	language would 	cover 	those 	campuses 	on 	two-year
cycles 	and those who wished to 	review, 	even 	though the
faculty/instructor did not 	receive 	a 	reappointment.
UC-AFT, 	according to Schroeder, 	also understood the words
"in addition 	to" 	represented an accommodation to 	those 	campuses
that 	wanted 	to 	continue 	on 	two-year 	review cycles 	and might 	do
more 	reviews 	than 	the 	two mandated by 	section 	C.1. 	In 	this
context 	"sole 	discretion" 	implied that 	the University's 	judgment
would be 	the 	deciding 	factor 	in 	such 	circumstances.
In its May 22, 	1987, 	counterproposal, 	UC-AFT proposed only
one 	change 	in the 	language of 	C.1 	-- 	namely that 	the date 	for
commencing the mandatory reviews would be July 1, 	19 87, 	instead
11

of July 1, 	1988. 	UC-AFT also proposed the addition of 	sections
C.4 	and 	C.5 	which 	contained 	language 	to 	insure 	that 	members
currently being 	reviewed 	for merit 	would not 	be 	denied 	access 	to
this 	review process 	solely on the basis 	of 	their unit membership.
UC-AFT also wanted to maintain its unit members' 	future access 	to
regular merit 	reviews 	and 	increases 	under 	existing practices 	not
covered by 	the 	terms 	of 	section 	C.1. 	Additionally, 	UC-AFT 	sought
in section D 	to have 	each campus 	establish, 	by January 1988,
merit 	review 	"policies" 	and 	"procedures," 	the nature 	of which
would be 	at 	the University's 	sole 	discretion.
The 	University's May 22 	counterproposal 	for 	the
implementation date 	for 	the 	first mandatory 	review was 	again
July 1, 	1988. 	It also counterproposed UC-AFT's 	language 	for
section D with 	language 	to provide UC-AFT with 	campus merit
review 	"procedures" 	as developed. 	The word 	"policy" 	was 	deleted
from the University's 	counterproposal. 	Gilpin-Bishop 	testified
that 	this 	change was 	not 	considered 	significant 	because 	the
parties used the 	terms 	"policies" 	and 	"procedures"
interchangeably 	in negotiations. 	The May 22 	counterproposal 	to
UC-AFT's 	proposed 	sections 	C.4 	and C.5 	created 	a 	section E 	to
address 	the union's 	concerns about unit members' 	continued access
to merit reviews. 	This language read:
The provisions 	of 	this Article are not
intended 	to preclude 	consideration 	for merit
review for the members 	of 	this 	bargaining
unit.
In explaining 	the 	choice 	of 	the words 	"preclude 	consideration,"
Gilpin-Bishop 	said 	that 	this 	language was 	intended 	to preserve
12

the University's 	"sole discretion" 	to do merit 	reviews beyond the
contract 	minimum being agreed 	to by 	the parties. 	UC-AFT accepted
the 	University's 	language 	and 	creation 	of 	section E.
It also 	conceded the deletion of 	the 	term 	"policies" 	from
the 	language 	of 	section D without 	any apparent 	objection. 	After
other minor language 	changes, 	the parties 	reached a 	tentative
agreement 	on May 22, 	1987. 	The terms agreed to became the
provisions 	of Article XXIII 	in the 	1987 MOU.8
During 	these negotiations, 	the parties 	also 	executed a 	side
letter agreement. 	The agreement 	addressed the 	treatment 	of 	those
individuals 	who 	had 	already 	received 	their 	first 	post 	six-year
three-year appointment, 	effective July 1, 	1987, 	but did not
receive 	a 	salary adjustment 	or merit 	review 	in 	conjunction with
this 	reappointment. 	These 	individuals were guaranteed a merit
review during 	this 	first 	three-year 	appointment 	period 	to 	insure
that 	they were 	treated the 	same as 	everyone 	else.
The 	1989 	Negotiations
The parties' 	reopener negotiations 	for 19 89 	commenced during
the winter of 	1988.
In its 	initial merit proposal 	of December 13, 	1988, 	UC-AFT
proposed biannual 	reviews 	for pre 	six-year 	lecturers 	as 	well 	as
those 	on post 	six-year appointments. 	Again 	it 	sought minimum
percentage merit 	increases 	for both pre 	and post 	six-year
faculty. 	It 	also wanted to 	insure 	that both UC-AFT and unit
8See text, 	supra. 	pages 6-7.-
13

members 	received 	current 	information 	on 	a 	timely basis 	regarding
the 	applicable 	campus procedures 	for such reviews.
At the first negotiating session, 	on January 19, 	1989, 	the
University 	rejected all 	proposals 	for merit 	increases 	as 	too
costly. 	Its 	initial 	counterproposal 	of January 19, 	proposed no
change 	in 	terms 	of Article XXIII 	except 	in section D.
The 	1989 	negotiations 	did not 	result 	in any substantive
changes 	in the language of 	sections A, 	B, 	or C. 	Besides minor
word changes, 	including the elimination of 	the July 1, 	1988,
implementation date 	which was 	no 	longer needed, 	section C.1 was
modified 	to 	include 	language providing a means 	for post 	six-year
appointees 	who were 	denied a 	review to 	seek 	resolution 	through a
designated official 	at each campus. 	This 	language, 	as 	finally
adopted, 	remained unchanged 	in 	the 	1991-93 	MOU.
At 	the January 27 	session, 	the University did propose 	the
addition 	of 	a new section E which 	read:
E. 	No later than January 1 	of 	each year,
each 	campus 	will 	provide 	the UC-AFT with
a 	list 	of 	faculty/instructors 	in 	the
unit 	who were 	reviewed 	for merit 	during
the previous academic year. 	The
information will 	include the campus, 	the
faculty/instructor 	in the unit's 	name,
department, 	whether the 	individual was
granted a merit 	increase or not, 	and the
amount 	of 	such increase.
This 	proposal 	addressed UC-AFT's 	concern 	about 	receiving
information 	regarding 	the 	University's 	systemwide 	implementation
of 	the merit 	review process. 	When the parties 	agreed to 	this
addition, 	they changed the January date 	to February. 	Sections 	E
and F 	in the 	1987 MOU were 	relettered as 	sections 	F and G.
14

The 	parties 	reached a 	tentative 	agreement 	regarding 	the
merit article on January 27, 	1989.
The 	1991 	Negotiations
UC-AFT's 	initial proposal 	of December 19, 	1990, 	again sought
minimum percentage merit 	increases 	for both pre 	and post 	six-year
appointees. 	It 	also proposed three-year appointments 	for pre
six-year 	faculty with 	established 	times 	for mandatory merit
reviews.
The University's 	initial 	counterproposal 	of 	January 	17,
1991, 	rejected the 	idea of additional 	guaranteed reviews beyond
those 	already provided 	for 	in 	the MOU.
It 	also 	rejected mandatory merit 	increases 	for any unit
members. 	The University proposed no 	change 	in the 	terms 	of 	the
merit article, 	except 	for a later date 	(December 1 	instead of
February 1) 	in section E 	to provide UC-AFT with merit
information. 	Gilpin-Bishop 	explained during 	the 	January 	17
negotiating 	session 	that 	a 	later date would enable 	the University
to 	compile more 	complete 	information.
After an exchange of 	additional proposals, 	the parties
reached a 	tentative agreement 	on February 1, 	1991, 	with no
changes 	in Article XXIII 	except 	for the 	date 	change 	(November 	15)
in section E.9
9See the text of section E, 	supra, 	page 	8.
15

Merit 	Review of 	Unit 	18 	Members 	at 	the 	Santa Barbara Campus
The 	Practice 	Prior to 	1986
Prior to 	1986, 	there was 	no 	campuswide policy or procedure
at 	the 	Santa Barbara 	campus 	governing 	how and when merit 	reviews
of 	employees 	in unit 	18 were 	conducted. 	The authority to review
and award 	increases 	was 	delegated 	to 	the 	college 	deans 	and
provosts by the 	campus vice 	chancellor 	for academic 	affairs, 	with
the 	understanding 	that 	the vice 	chancellor 	could 	revoke 	this
delegation at 	any time. 	Some 	departments 	declined 	to do any
merit 	reviews. 	Others did reviews 	on a 	regular basis 	and granted
merit increases to some, 	but not all, 	lecturers. 	Thus, 	lecturers
were 	reviewed 	for merit 	on an 	individualized, 	department-by-
department basis.
Merit 	Review Under 	the MOU
The 	1987 	amendments 	to 	the merit 	article did not 	change 	the
Santa Barbara 	campus' 	policy or procedures 	for merit 	review of
lecturers, 	except 	for 	those 	reviews mandated by section C.1 of
Article XXIII 	for post 	six-year appointees. 	Even with the
mandated 	reviews, 	individual 	departments 	retained discretion
regarding 	the 	timing of 	such 	reviews 	during 	the 	period of 	the
first 	three-year appointment.
In 1987, 	there were post 	six-year lecturers 	in the Writing
Program who were 	eligible 	for merit 	reviews 	during 	the 	19 87-88
academic year under 	the program's 	new biannual 	review practice.
The 	campus 	administration decided not 	to authorize merit 	reviews
for 	those 	employees 	in the 	1987-88 	academic year because 	they
16

would be 	eligible 	for 	reviews 	in 	the 	1988-89 	academic year
coincident 	with 	their 	first 	three-year appointments.
In academic year 1988-89, 	the College of Letters 	and Science
(CLS) 	was 	the largest 	college at 	the Santa Barbara campus. 	It
consisted of approximately 3 0 departments. 	In the 	fall of 19 88,
one 	of 	the 	college deans 	sent 	a memo 	to his 	department 	heads
stating 	that, 	other 	than 	those merit 	reviews 	required by the MOU,
there 	would be 	no 	reviews 	for pre 	six-year lecturers 	for 	that
academic 	year.
A June 20, 	1988, 	memorandum to campus deans and provosts
from Robert Michaelson 	(Michaelson), 	then acting vice 	chancellor
for academic affairs, 	indicated that 	the administration was
delegating 	the 	authority 	to 	the 	college 	level 	for appointments
and merit 	increases 	for 	certain 	temporary 	lecturer
classifications. 	Michaelson reiterated that 	there was 	no 	campus
policy 	for merit 	eligibility 	for 	these 	classifications 	and 	that
the 	campus was 	not 	contemplating developing one 	at 	that 	time.
Additionally, 	he was 	retaining authority 	to 	establish any 	future
campus 	policies 	concerning 	appointments 	and merit 	eligibility.
Michaelson's memo went 	on to state 	that merit 	reviews 	were at 	the
discretion of 	the 	departments 	except 	for 	those 	required by the
MOU 	for post 	six-year appointees.
In response 	to an inquiry 	in early 	1989 	about 	the unit 	18
merit policy, 	Julius Zelmanowitz 	(Zelmanowitz), 	associate vice
chancellor 	for academic personnel, 	advised Richard Shavelson,
17

dean of 	the Graduate School 	of Education, 	in a February 9, 	1989,
memorandum as 	follows:
1. 	For pre-sixth year merits, 	"normal
practice" 	is a department's 	own practice with
respect 	to merits, 	subject 	to review outside
the department. 	This 	is an area where 	the
University has 	sole 	discretion.
2. 	For post-sixth year appointments,
prior practice 	is 	no 	longer 	the 	determining
factor, 	since 	the MOU merit policy supersedes
all 	prior policy. 	MOU Article 	XXIII.C.1 	and
current 	policy 	(contained 	in 	the 	12/12/88
policy Lecturer Reviews: 	Sixth-Year and
Subsequent 	Reviews 	and 	soon 	to be 	issued 	for
inclusion in the Red Binder) 	require 	that a
merit 	review be 	conducted 	coincident 	with 	the
initial 	post-sixth year 	review and 	the
reappointment 	review 	for 	the 	second post-
sixth year appointment.10
3. 	Our view is 	that, 	for post-sixth
year appointments, 	any merit 	recommendations
beyond 	those 	required by 	the MOU are 	at 	the
sole discretion of 	the University, 	and would
be 	regarded as 	exceptional 	actions 	(or
accelerations).
4. 	In general, 	for Unit 	18 	faculty,
merit 	recommendations 	in excess 	of
approximately 	5% 	(or 	two 	increments 	on the
Standard Table 	of 	Pay Rates) 	are 	regarded as
accelerations.
In June 1989, 	David Sprecher 	(Sprecher), 	provost for the
CLS, 	determined that 	the 	college again did not have 	the budget 	to
grant merit 	increases 	for pre 	six-year unit 	18 	faculty. 	Sprecher
sent a memorandum to his department heads, 	dated June 	6, 	1989,
notifying 	them that 	no merit 	requests 	would be 	funded unless 	a
10Prior 	to 	1986 	the 	campus 	had no 	specific policies
pertaining 	to 	lecturers 	aside 	from those 	in 	the 	University's
academic personnel manual. 	After 1986, 	the campus 	created a
section in its 	local 	policies and procedures manual, 	known as 	the
"red binder," 	specifically 	for 	lecturers.
18

department 	or program could do 	so 	from its 	own 	funds 	without
reducing 	an 	instructional 	program. 	UC-AFT was 	notified of 	this
decision through the 	campus' 	labor relations 	office.
It 	is undisputed that between July 1, 	1987, 	and the
beginning of 	the 	1991-92 	academic year, 	the Santa Barbara
administration 	conducted at 	least 	one merit 	review 	coincident
with both 	the 	first 	and 	second 	three-year appointments 	given 	to
eligible post 	six-year lecturers. 	The 	record does 	not 	reveal 	how
many, 	if any, 	of 	these employees actually received merit 	salary
increases. 	Also unknown 	is whether any post 	six-year lecturers
on 	three-year appointments 	received merit 	reviews 	in addition 	to
the 	two mandated by 	the MOU during 	the 	first 	and 	second 	three-
year appointments.
UC-AFT/University Meetings 	in 	1988-89 	Regarding Merit
Reviews 	at 	Santa 	Barbara
On occasion, 	UC-AFT and the University met 	away 	from the
the 	negotiating 	arena 	to discuss merit 	reviews 	for unit members
at 	the Santa Barbara 	campus.
In response 	to 	the 	fall 	1988 	decision by the 	CLS 	to deny
merit reviews, 	Margaret Bouraad-Nash 	(Bouraad-Nash), 	president of
the 	local UC-AFT chapter, 	sent 	a memo to David Gonzales
(Gonzales), 	the Santa Barbara campus labor relations manager, 	in
mid-September 	1988, 	protesting 	the action and requesting
information about 	the 	current 	campus policy on merit 	increases.
The 	parties 	subsequently agreed 	to meet 	about 	the matter.
In late October 1988, 	Zelmanowitz, 	Sprecher and Gonzales
met 	with Bouraad-Nash and Rhonda Levine, 	another UC-AFT
19

representative, 	regarding the merit 	issue. 	Bouraad-Nash
requested 	that 	the 	administration 	develop 	a 	campuswide 	policy 	to
regularize merit 	reviews 	for pre 	six-year lecturers, 	the majority
of 	lecturers 	at 	the Santa Barbara 	campus.
Zelmanowitz 	indicated 	that 	the 	administration was 	willing 	to
consider 	the advisability of 	such a policy. 	Later 	the 	idea was
"put 	on hold" 	because 	of 	the 	campus 	administration's 	concern
about 	its budget 	ramifications. 	Additionally, 	because UC-AFT
reopened 	the merit 	article 	at 	the 	1989 	systemwide 	reopener
negotiations 	shortly after the meeting, 	the 	local 	campus 	decided
to await 	the outcome of 	the negotiations.
At 	the 	request 	of UC-AFT, 	another meeting was held 	in May
1989, 	to discuss a number of 	issues, 	including creation of a
campuswide merit 	review policy 	for 	its 	pre 	six-year 	lecturers.
The University again refused to develop 	such a policy, 	stating
that 	the 	ongoing 	systemwide 	bargaining 	over merit 	preempted any
local 	level 	consideration of 	the matter. 	Despite UC-AFT's
disagreement with the University's position, 	no 	campus 	policy was
established.
The February 7, 	1992. 	Post Six-year Lecturer Merit 	Policy
Prior to academic year 1992-93, 	no member of unit 	18 was
eligible 	for a 	third or 	subsequent 	post 	six-year appointment.
However, 	during the 	1991-92 	academic year, 	approximately 13
lecturers 	at 	the 	Santa Barbara 	campus were 	eligible 	to 	commence
20

review for reappointment 	in the 	1992-9311 academic year 	for their
third post 	six-year 	contracts.
In the 	fall 	of 	1991, 	several departments 	contacted
Zelmanowitz' 	office about their obligation, 	if any, 	to conduct
merit 	reviews 	in conjunction with the 	reviews 	of 	those 	Santa
Barbara 	lecturers 	who were 	eligible 	for a 	third post 	six-year
reappointments. 	Realizing 	that 	there was 	no 	campus 	policy
covering this matter, 	in November or December 1991, 	Zelmanowitz
initiated 	steps 	to develop a policy. 	Following 	consultation with
the deans 	and provosts 	of 	the various 	campus 	schools 	and
colleges, 	Zelmanowitz 	prepared a proposed merit 	review policy 	for
post 	six-year lecturers. 	This proposal was 	sent 	to 	the 	campus
academic 	senate on January 16, 	1992, 	for its 	review and response.
It read, 	in relevant part, 	as follows:
In 	consultation with the Deans 	and Provosts,
it 	is proposed 	to exercise 	the University's
discretion at 	UCSB 	in the 	following manner.
Lecturers under consideration 	for a third 	(or
subsequent) 	post 	six-year appointment will 	be
eligible 	for merit 	review only 	in 	exceptional
circumstances. 	In such cases, 	the Dean or
Provost may grant 	a 	department 	permission 	to
conduct a merit 	review.
The 	reasons 	for this proposal 	include 	the
following:
(1) 	The temporary FTE which are used
for 	lecturer appointments 	are 	not 	funded 	for
merit 	increases. 	Post 	six-year lecturer
salaries 	exceed budgeted 	salary 	levels 	in all
11Article VII 	(Appointments), 	section C.l.c. 	states that:
Review 	for 	subsequent 	three-year 	appointments
will 	normally 	occur during 	the 	second year 	of
each 	three-year appointment.
21

Schools and Colleges at UCSB. 	At 	the moment,
3.35 	FTE. are being used to 	fund the merits 	of
post 	six-year lecturers, 	over and above 	the
36.11 	FTE 	occupied by 	these 	lecturers 	(see
attached data sheet). 	This 	is an unfunded,
and 	growing 	liability.
(2) 	Merit 	review entitlement 	for
employees 	represented by 	a bargaining 	agent
are most 	appropriately negotiated at 	the
bargaining 	table.
Zelmanowitz 	requested a 	quick 	response 	from 	the 	academic
senate 	so 	that 	he 	could advise 	the various 	departments.
A copy of 	the proposal 	was 	also 	sent 	to Gonzales 	for
transmittal 	to the 	local UC-AFT chapter. 	On January 21, 	1992,
Gonzales 	sent 	a 	copy of 	the proposed policy to Maria Marotti-
Ceder 	(Marotti-Ceder), 	the local 	chapter president.
Marotti-Ceder sent a letter to Gonzales 	on January 29, 	1992,
with a 	copy to Zelmanowitz, 	asserting 	that 	the University had a
legal 	obligation to 	raise 	the 	issue 	of merit 	policy with UC-AFT
at 	the bargaining 	table 	or 	it 	would risk a violation of 	law.
Neither Gonzales 	nor 	Zelmanowitz 	responded 	to 	the 	letter.
On February 7, 	1992, 	Zelmanowitz 	issued a memorandum to
deans 	and provosts 	announcing 	adoption 	of 	the proposed policy 	for
post 	six-year merit 	reviews. 	The policy, 	which was 	effective
immediately, 	read, 	in pertinent part, 	as follows:
Unit 	18 	lecturers under consideration 	for a
third 	or 	subsequent 	post 	sixth-year
appointment 	will 	be 	eligible 	for merit 	review
only 	in exceptional 	circumstances.
Exceptional 	circumstances 	must 	involve
factors 	that 	go beyond 	the 	"excellent
performance" 	criterion 	for reappointment 	(MOU
Article VII.C.l.a.2). 	When such
circumstances 	are present 	and 	funding 	for a
potential merit 	increase 	is 	available 	in the
22

School 	or College, 	the Dean or Provost may
grant 	a department 	permission 	to 	conduct 	a
merit 	review. 	The personnel 	file 	for 	such a
merit 	review must 	include 	full 	documentation
of 	the exceptional nature 	of 	the 	case.
Gonzales 	sent 	a 	copy 	of 	the 	adopted policy 	to Marotti-Ceder 	on
February 11, 	1992.
In response to this action, 	Edward Purcell 	(Purcell), 	UC-
AFT's 	labor consultant, 	sent a letter to 	Zelmanowitz 	on February
21, 	1992, 	formally demanding to bargain merit 	issues 	related to
post 	six-year 	lecturers 	and threatening 	to 	file 	an unfair
practice 	charge 	if 	the University refused 	to bargain and/or
withdraw the 	February 	7 policy.
Jeffrey Frumkin 	(Frumkin), 	the University's 	systemwide
assistant 	director of 	labor relations-staff 	services, 	responded
to Purcell by letter on March 12, 	1992. 	Frumkin's 	letter stated
that 	the University was 	refusing 	to bargain about 	the policy.
His 	letter also asserted that pursuant 	to the parties' 	1989
reopener negotiations, 	section D of Article XXIII 	contained a
specific 	waiver 	of 	any obligation by 	the 	University 	to bargain
over any 	changes 	to 	campus merit 	review procedures.
UC-AFT 	subsequently 	filed 	the 	instant 	unfair practice 	charge
on March 23, 	1992.
At 	the hearing, 	Zelmanowitz described the 	February 7, 	1992,
document 	as 	a 	combination of policy and procedure. 	He
acknowledged that, 	as a policy, 	it actually establishes 	two
criteria 	for merit 	review eligibility: 	the 	existence 	of 	(1)
"exceptional 	circumstances," 	and 	(2) 	funding 	for potential merit
23

increases 	in the 	school 	or college. 	This 	criteria 	is
distinguished 	from 	the 	contractual 	standard 	of 	"excellent
performance" 	used 	in 	evaluating post 	six-year 	lecturers 	for
three-year appointments. 	Zelmanowitz 	also admitted 	that 	the
policy 	creates 	more 	restrictive 	eligibility 	requirements 	for
merit 	reviews 	than the 	classwide 	standard applied by 	the MOU 	for
the 	first 	and 	second 	three-year 	reappointments.
The 	February 	7 	policy did not 	define 	the meaning 	of
"exceptional 	circumstances" 	because, 	as Zelmanowitz explained,
the administration 	could not anticipate all 	the kinds 	of
circumstances 	that might arise.12
Other 	Relevant 	MOU 	Provisions
The waiver provisions 	of 	the 	1991-93 	MOU are 	found 	in
Article XXXVIII which reads:
ARTICLE XXXVIII. 	WAIVER
A. 	The University and the UC-AFT
acknowledge 	that 	during 	the 	negotiations
which 	resulted 	in 	this 	Memorandum of
Understanding, 	each had the 	right 	and
opportunity 	to make 	demands 	and
proposals 	with 	respect 	to any subject 	or
matter not 	removed by 	law 	from the 	area
of 	collective bargaining, 	and the
understandings 	and agreements 	arrived 	at
by the parties 	after the 	exercise 	of
that 	right 	and opportunity are 	set 	forth
in 	this Memorandum of 	Understanding and
that 	this 	Memorandum of 	Understanding
constitutes 	the 	agreement 	arrived at 	by
the parties.
12One example of an 	"exceptional 	circumstance" 	was given. 	It
was 	described as 	a 	situation where 	an 	exceptionally valuable
lecturer was being 	recruited by an outside 	campus. 	The merit
review process 	could be used 	to meet 	the 	outside 	offer and
hopefully retain the 	employee at 	the Santa Barbara 	campus.
24

B. 	The 	rights 	granted and 	the procedures
set 	forth under 	the Academic 	Personnel
Manual 	and 	other University policies 	and
procedures 	will 	no 	longer apply 	to
faculty/instructors 	in 	the unit 	covered
by 	this Memorandum of 	Understanding
except 	as 	specifically 	set 	forth below
or elsewhere 	in 	this 	Memorandum of
Understanding. 	Although 	the memorandum
constitutes 	the 	agreement 	between 	the
parties, 	the parties agree that the
applicable parts 	of 	the Academic
Personnel 	Manual 	and 	other University
policies 	and procedures 	regarding 	the
areas 	listed below will 	continue 	to
apply to members of 	this unit:
Patent 	and 	Copyright
Indemnity
Additional 	Compensation
Special 	Services 	to 	Individuals 	and
Organizations
Outside 	Professional 	Activities
Disclosure 	of 	Financial 	Interests
Any 	changes 	in 	the above policies 	will
be 	subject 	to 	the meet 	and discuss
process and will 	not be 	subject 	to 	the
meet 	and 	confer process 	unless 	the
change affects 	only the members 	of 	this
unit.
C. 	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.
25

ISSUE
Whether the University's adoption of 	the February 7, 	1992,
policy 	regarding merit 	reviews 	for 	six-year 	lecturers 	violated
section 3571(c) 	and derivatively, 	section 3571(a) 	and 	(b)?
DISCUSSION
Section 	3570 	of 	HEERA imposes 	a duty upon higher 	education
employers 	to meet 	and 	confer with 	exclusive 	representatives 	of
employees 	on all matters 	within the 	scope 	of 	representation.
This 	duty 	is 	analogous 	to 	the duty to bargain imposed upon public
school 	employers 	under the 	Educational 	Employee 	Relations Act 	and
upon private 	sector 	employers 	by 	the 	National 	Labor 	Relations
Act.13
In Regents 	of 	the University of 	California v. 	Statewide
University Police Association 	(1985) 	PERB Decision No. 	520-H, 	the
Board 	reiterated 	its 	standards 	of 	analysis 	for alleged violations
of HEERA's meet and confer provision. 	Accordingly, 	in
determining 	whether 	a party's 	conduct 	constitutes 	an unfair
practice, 	the Board uses both a 	"per se" 	and a 	"totality of 	the
conduct" 	test, 	depending on the 	conduct 	involved and its 	effect
on 	the negotiating process.
13The 	Educational 	Employer Relations Act 	is 	codified at
section 3540 	et 	seq. 	The National 	Labor Relations Act 	(NLRA) 	is
codified at 	29 	U.S.C. 	section 	151 	et 	seq. 	The 	construction of
provisions 	of 	the NLRA is useful 	guidance 	in 	interpreting
parallel 	provisions 	of 	collective bargaining 	statutes
administered by 	the 	PERB. 	(See 	San Diego Teachers Association v.
Superior Court 	(1979) 	24 Cal.3d 1 	[154 Cal.Rptr. 	893];
Firefighter's Union v. 	City 	of Vallejo 	(1974) 	12 	Cal.3d 608 	[117
Cal.Rptr. 	507].)
26

An employer's 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment within the scope of 	representation, 	is, 	absent a valid
defense, 	a per se refusal 	to negotiate. 	(Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51; 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94.)
Established policy 	relating 	to 	terms 	and 	conditions 	of
employment 	may be 	embodied 	in a 	collective 	bargaining 	agreement
(Grant Joint Union High School District 	(1982) 	PERB Decision No.
196) 	or, 	where a contract 	is silent or ambiguous, 	it may be
determined 	from past 	practice 	or bargaining 	history 	(Rio 	Hondo
Community College District 	(1982) 	PERB Decision No. 	279).
In determining 	whether 	the 	University violated HEERA 	section
3571 as alleged, 	the 	foregoing principles will be kept 	in mind.
The 	Unilateral 	Change Allegation
To establish a unilateral 	change, 	the 	charging party must
show that: 	(1) 	the 	employer breached or altered the parties'
written agreement 	or established practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or
opportunity to bargain over the change; 	(3) 	the 	change 	is not
merely an 	isolated breach 	of 	the 	contract 	but 	amounts 	to 	a 	change
of policy 	(i.e., 	has a generalized affect 	or continuing 	impact
upon bargaining unit members' 	terms and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant Joint Union High
School District, 	supra; 	Glendora Unified School District 	(1991)
PERB Decision No. 	876.)
27

Positions 	of 	the 	Parties
UC-AFT maintains 	that prior to February 7, 	1992, 	the
established policy 	for access 	to merit 	reviews 	for post 	six-year
lecturers 	on 	three-year appointments 	was 	embodied 	in 	the 	language
of 	section C.1 of Article XXIII. 	This 	section mandates 	at 	least
one merit 	review 	for 	such 	lecturers 	during 	the period of 	their
first 	and second three-year appointments. 	However, 	UC-AFT
argues, 	the 	language of 	this 	section is 	silent 	regarding merit
reviews 	for 	these 	employees 	during 	third and 	subsequent 	three-
year appointments. 	Consequently, 	the adoption and 	implementation
of 	the 	February 7, 	1992, 	policy by the Santa Barbara administra-
tion, 	precluding access to merit reviews of such, lecturers,
except 	in 	"exceptional 	circumstances," 	was 	an unlawful 	unilateral
action. 	This 	action was 	taken, 	without notice 	to UC-AFT and an
opportunity to meet and confer, 	in violation of 	section 3571(c).
UC-AFT 	further asserts 	that 	neither the 	express 	language 	of
section C.1 nor the parties' 	bargaining history gives 	the
University 	"sole discretion" 	to determine when, 	if at all,
additional 	reviews 	will 	be 	conducted 	for 	the 	affected 	employees.
The University takes 	the position 	that 	the 	language 	of
Article XXIII 	clearly gives 	it 	the authority to 	take 	the action
that is the focus of this dispute. 	This article, 	it asserts, 	is
so 	comprehensive and clear on 	its 	face 	that 	the bargaining
history need not 	be 	considered 	to 	interpret 	its 	meaning. 	The
University 	construes 	the 	last 	sentence 	of 	section C.1 as
reserving 	to 	it 	the unfettered right 	to determine 	the policy
28

about 	any merit 	reviews 	for post 	six-year 	lecturers 	beyond 	the
two mandated by 	section C.1.
When read alone, 	the 	last 	sentence 	of 	section C.1 is
arguably 	susceptible 	to 	the 	interpretation 	offered by 	the
University. 	However, 	when read within the 	context 	of 	the 	entire
section, 	the 	language arguably has 	a different meaning. 	The use
of 	extrinsic 	evidence 	is 	thus proper 	to ascertain the meaning 	of
words 	"in addition to those above" 	found 	in the 	last 	sentence.
Under well-established 	rules 	of 	contract 	interpretation,
extrinsic 	evidence 	is 	properly 	considered when 	the 	contract
language 	is 	ambiguous, 	and 	it may be 	received only to 	establish a
meaning 	to which the 	language 	of 	the 	contract 	is 	reasonably
susceptible. 	(Murphy Estate 	(1978) 	82 	Cal.App.3d 304 	[147
Cal.Rptr. 	258]; Murphy Slough Assn. v. Avila 	(1972) 	27 Cal.App.3d
349 	[104 	Cal.Rptr. 	136].) 	In using extrinsic evidence:
A contract must 	be 	so 	interpreted as 	to 	give
effect 	to 	the mutual 	intention of 	the parties
as 	it 	existed at 	the 	time 	of 	contracting 	so
far as 	the 	same 	is 	ascertainable and lawful.
(Cal. 	Civ. 	Code section 1636; 	1 Witkin Summary of Cal Law 	(9th
Ed. 	1987) 	Contracts, 	sec. 	684; 	Stevenson v. 	Oceanic Bank 	(1990)
223 	Cal.App.3d 306 	[272 	Cal.Rptr. 	757].)
The 	1987 parties' 	bargaining history is most 	revealing about
the parties' 	intent 	and understanding 	regarding 	the 	language 	of
section 	C.1. 	These 	negotiations 	culminated 	in 	the 	language 	that
is now the subject of this dispute, 	most notably, 	the last
sentence 	of 	section 	C.1. 	The 	language 	of 	this 	sentence was 	not
changed during 	the 	1989 	or 	1991 	negotiations.
29

This 	evidence 	shows 	that 	when 	the University 	introduced 	the
substantially revised language of C.1 on May 1, 	1987, 	its
proposal 	replaced 	the word 	"normally" 	with 	the phrase 	"at 	least
one." 	Gilpin-Bishop proposed 	this phrase 	to give 	campuses 	a
better 	"time 	frame" 	for conducting merit 	reviews 	during 	the
period of both 	the 	first 	and second 	three-year appointments. 	The
University wanted 	this 	language 	to preserve 	the 	flexibility 	for
campuses 	to 	review on either two- 	or 	three-year cycles 	or 	to
review even 	if 	faculty members 	received non-appointments. 	This
was 	also 	recognized the 	fact 	that 	some 	campuses might 	do
"acceleration, 	decelerations or deferrals" 	of merit 	reviews
during 	these 	three-year appointment 	periods.
When the parties 	agreed to 	the 	language 	of 	the 	last 	sentence
of 	section C.1, which reads 	"Consideration of merit 	reviews 	in
addition 	to 	those above will 	be at 	the 	sole discretion of 	the
University," 	both 	sides understood 	that 	this 	sentence was
inserted 	to modify or amplify 	the phrase 	"at 	least 	one" 	in the
first 	sentence 	with 	respect 	to 	reviews 	conducted during 	the 	time
of 	the periods 	of 	the 	first 	and second three-year appointments.
There 	is 	no 	indication that 	the parties 	ever discussed,
contemplated, 	or agreed that 	these 	five words would also 	give 	the
University 	sole 	discretion 	to 	determine merit 	review 	eligibility
for post 	six-year 	lecturers 	during 	their 	third 	or 	subsequent
three-year appointments. 	If 	the University 	intended that 	the
"sole discretion" 	language of 	the 	last 	sentence of 	this 	section
would apply 	to periods beyond 	the 	first 	and 	second 	three-year
30

appointments, 	this 	intent was not 	communicated to UC-AFT during
the 	1987 	negotiations 	or any subsequent negotiations.
In light 	of 	the 	evidence presented, 	it 	is determined that
the 	contract 	is more 	reasonably 	susceptible 	to 	the 	interpretation
offered by UC-AFT 	than that 	proffered by 	the 	University.14 It
is 	therefore 	concluded that 	the parties 	intended the 	language 	of
section 	C.1 	to apply 	only 	to merit 	reviews 	given 	to post 	six-year
lecturers 	during 	their 	first 	and 	second 	three-year appointments.
The MOU language, 	as well as 	their bargaining history, 	is 	silent
with 	respect 	to 	their 	intent 	about merit 	reviews 	during 	the 	third
or 	subsequent 	three-year appointments.
Past 	Practice
UC-AFT also attacks 	the University's 	February 7, 	1992,
policy 	on 	the 	grounds 	that 	it 	represented an alteration 	of 	past
practice. 	In the absence 	of an express provision in the MOU
allowing 	the 	University 	to unilaterally 	establish a merit 	review
policy 	for post 	six-year 	lecturers 	on 	their 	third 	three-year
appointment, 	UC-AFT asserts 	that 	it 	is appropriate 	to consider
Santa 	Barbara's 	departmental 	practices 	before 	the 	1986 	MOU went
into effect.
In support 	of 	this 	theory, 	UC-AFT points 	to Article XXIII,
section F 	of 	the 	current MOU as 	representing a 	"de 	facto
14UC-AFT urges 	that, 	pursuant 	to California Civil 	Code
section 1654, 	the 	language of 	the 	contract 	should be 	interpreted
most 	strongly against 	the party who 	causes 	the uncertainty to
exist 	(i.e., 	the University). 	However, 	this principle is applied
only where 	other 	rules 	of 	construction 	fail 	to 	resolve 	the
uncertainty, 	which is not 	the 	case here.
31

guarantee" 	that 	the University would maintain at 	least
traditional 	access 	to merit 	reviews 	for all 	lecturers 	not
mandated 	to 	receive 	reviews 	under 	section 	C.1.15 It 	is 	argued
that 	this 	presumptively 	includes 	those 	not 	on 	first 	and 	second
post 	six-year three-year appointments, 	i.e., 	those unit members
on 	their 	third post 	six-year 	three-year appointment.
Section F 	contains vague 	language. 	The 	1987 bargaining 	that
resulted 	in this 	language 	is 	not 	really helpful 	in gleaning 	the
intent 	of 	the parties about 	this provision.
When UC-AFT proposed 	the 	addition 	of 	sections 	C.4 	and C.5,
it 	attempted 	to 	insure unit members 	access 	to 	future merit
reviews 	and 	increases 	under 	existing practices 	not 	covered by 	the
mandates 	of 	section 	C.1. 	The 	University 	countered with 	the
language 	found 	in section F. 	It appears 	that 	the parties'
intended 	this provision to apply 	to unit members 	other 	than 	those
on post 	six-year appointments. 	There 	is 	no 	indication that 	the
parties 	agreed 	that 	section 	F would also apply 	to post 	six-year
lecturers 	on 	third or subsequent 	three-year appointments.
Even 	though 	extrinsic 	evidence 	was 	admitted 	concerning 	the
negotiations 	over the 	language of 	section F, 	this 	evidence does
not 	support 	the 	interpretation 	of 	the 	contract 	urged by UC-AFT
that 	it provides a 	"de 	facto guarantee" 	to post 	six-year
lecturers 	beyond 	the mandates 	of 	section 	C.1. 	UC-AFT has 	not
carried its burden with this argument, 	and it 	is 	therefore
rejected.
15See text, 	supra. 	at page 8.
32

There 	is 	also another 	reason 	for 	rejecting UC-AFT's 	argument
regarding an alteration of 	a past practice. 	Those lecturers 	in
the 	group 	designated as 	"post 	six-year lecturers" 	were a 	creation
of 	the 	1986 MOU. 	It was not until 	1987 	that 	the MOU provided for
two guaranteed merit 	reviews 	for this group. 	It 	is undisputed
that, 	prior to February 1992, 	no post 	six-year lecturer,
including 	those 	employed at 	the 	Santa Barbara 	campus, 	was
eligible 	for a 	third post 	six-year, 	three-year appointment.
Consequently, 	the prevailing practices with respect 	to merit
reviews 	for this 	group of 	lecturers 	are whatever may have
developed, 	consistent with the provisions 	of 	the MOU after 	1986.
Past practice prior 	to 	1986 	is 	not 	relevant with respect 	to post
six-year lecturers. 	(Lake Elsinore School District 	(1986) 	PERB
Decision No. 	563.)
Effect 	of 	the 	Policy
It 	has 	been 	concluded 	that 	the University unilaterally
promulgated a policy on February 7, 	1992, 	which changed the merit
review eligibility 	requirements 	for post 	six-year 	lecturers
coincident 	with 	their 	third 	three-year appointment. 	The
University contends 	that 	it 	attempted to 	consult with UC-AFT,
consistent 	with 	its 	practice 	of 	consulting with 	the 	campus
community over policy development, 	prior 	to adopting 	the 	subject
policy; 	but 	concedes 	that 	it 	refused 	to meet 	and confer with
UC-AFT, 	despite a protest 	from the union that 	the policy was
negotiable. 	The 	change 	in merit 	review eligibility 	requirements
is not merely an isolated breach of 	the 	contract. 	It amounts 	to
33

a 	change 	of 	policy having 	a 	generalized 	effect 	or 	continuing
impact 	upon 	the 	affected bargaining unit members 	terms 	and
conditions 	of 	employment at 	the Santa Barbara campus. 	Since 	this
change 	in policy 	concerns 	a matter within 	the 	scope 	of
representation, 	i.e., 	the opportunity for salary increases, 	it 	is
concluded 	that 	the 	University was 	obligated 	to meet 	and 	confer
with UC-AFT prior to adopting the 	February 7, 	1992 	policy.
Absent 	some viable defense, 	the University's 	refusal 	to meet
and 	confer with UC-AFT regarding 	its 	decision 	to 	change 	the
eligibility 	requirements 	for merit 	reviews 	for post 	six-year
lecturers 	on 	their 	third 	three-year appointments 	constitutes 	a
violation of section 3571 (c).
Waiver 	Defense
The 	University asserts 	that 	UC-AFT waived 	its 	right 	to meet
and confer regarding the aforementioned subject. 	That waiver, 	it
alleges, 	is 	evidenced by the bargaining history, 	the MOU language
ultimately ratified by the parties, 	and conduct 	of 	the parties
demonstrating acquiescence during the years 	since 	19 87.
Specifically, 	the University argues 	that 	the 	language 	of
Article XXIII 	gives 	it broad discretion regarding merit 	reviews,
except 	for 	the 	two 	reviews 	guaranteed by 	section 	C.1. 	The
University also 	relies 	on 	the 	language 	of Article XXXVIII 	which
contains the waiver provisions. 	(See text, 	supra, 	at
pp. 	25-27.) 	The effect of Article XXIII, 	in conjunction with
Article XXXVIII, 	it 	is argued, 	is a clear contractual waiver of
34

UC-AFT's 	present 	right 	to bargain 	over 	the 	eligibility 	of 	post
six-year 	lecturers 	for additional 	merit 	reviews.
UC-AFT takes 	the position that 	it never waived 	its 	right 	to
meet 	and 	confer over 	this matter.
Waiver 	is 	an affirmative 	defense which 	the 	asserting party
has 	the burden of proving. 	It 	is well 	settled that 	in order to
find a waiver, 	PERB 	requires 	clear and unmistakable 	evidence 	that
a party has 	relinquished 	its 	rights 	to bargain. 	(Amador Valley
Joint Union High School District 	(19 78) 	PERB Decision No. 	74.)
With respect 	to 	contract 	terms 	serving as 	evidence 	of 	a
waiver, 	in Los Angeles Community College District 	(1982) 	PERB
Decision No. 	252, 	the Board held:
[C]ontract 	terms will 	not 	justify a
unilateral 	management 	act 	on a mandatory
subject 	of 	bargaining unless 	the 	contract
expressly 	or by 	necessary 	implication 	confers
such right. 	New York Mirror 	(19 65) 	151 NLRB
834 	[58 	LRRM 1456, 	1457]. 	Id. 	at p.10.
Here, 	the MOU between UC-AFT and the University does 	not 	justify
unilateral 	action. 	While 	inclusion of 	the 	comprehensive
provisions 	of Article XXIII permits 	an 	inference 	that 	the 	subject
of merit 	reviews was 	exhausted 	in negotiations, 	the 	"clear and
unmistakable" 	standard requires 	that 	evidence 	of 	a waiver be
conclusive.
Despite 	the University's 	contention, 	the language of 	section
C.1 of Article XXIII 	does not 	contain express 	terms 	evincing a
clear and unmistakable waiver by 	the union of 	the 	right 	to
bargain over 	the 	eligibility 	for merit 	reviews 	for post 	six-year
lecturers 	on their third three-year appointment. 	Nor can 	it 	be
35

inferred 	from the 	"sole discretion" 	phrase of 	this provision that
such a 	right 	is 	conferred 	on 	the University.
Nor does the 	zipper clause, 	i.e., 	Article XXXVIII, 	confer
that 	right. 	It makes no specific 	reference 	to merit 	reviews.
The plain language 	of 	that 	article 	gives 	both parties 	the 	right
to 	refuse 	to bargain changes 	in all 	subjects 	or matters 	referred
to or 	covered 	in the MOU for 	the duration of 	the agreement. 	This
includes 	matters 	"not 	specifically 	referred 	to 	or 	covered" 	by 	the
MOU 	"even though 	. 	. 	. 	within the knowledge or contemplation of
either of 	those parties" 	during 	the negotiations 	for the MOU.
In Los 	Rios 	Community College District 	(1988) 	PERB Decision
No. 	684, 	the Board analyzed the effect of a zipper clause
essentially the 	same as 	the 	one 	involved here. 	The Board
concluded that 	in practical 	terms, 	the 	clause 	fixed for the 	life
of 	the 	agreement 	those 	terms 	and conditions 	of 	employment
established by past practice, 	as well 	as 	those 	established by the
express 	terms 	of 	the contract. 	Thus, 	unspecified terms and
conditions 	of 	employment 	covering negotiable 	subjects 	become 	the
status 	quo 	for the 	life 	of 	that agreement.
In this 	case, 	the subject 	of merit 	reviews 	during the 	third
and subsequent 	appointments 	of 	post 	six-year 	lecturers 	is 	not
specifically 	referred 	to 	or 	covered by 	the MOU. 	Under 	the 	terms
of 	the 	zipper 	clause 	the University was 	free 	to 	refuse 	to bargain
changes 	in 	the 	eligibility 	requirement 	for merit 	review beyond
those 	established by the MOU. 	However, 	it was not 	free 	to alter
36

the 	requirements 	even 	though 	they are 	not 	detailed 	in 	the MOU.
(Compton Unified School District 	(1989) 	PERB Decision No. 	784.)
In Los Angeles 	Community College District, 	supra. 	the Board
addressed 	the use 	of 	bargaining history as 	evidence 	of 	a waiver
of 	a 	statutory right. 	Citing 	cases 	decided 	in the private
sector, 	the Board held:
Under 	the National 	Labor Relations Act 	(NLRA
or Act), 	union conduct in negotiations will
make 	out 	a waiver only 	if 	a 	subject was
"fully 	discussed" 	or 	"consciously 	explored"
and 	the 	union 	"consciously yielded" 	its
interest 	in the matter. 	Press Go. 	(1958) 	121
NLRB 976. 	. 	. 	. 	The fact that a union drops
a 	contract 	proposal 	during 	the 	course 	of
negotiations 	does 	not mean 	it 	has waived 	its
bargaining 	rights 	and 	ceded 	the matter 	to
management prerogative. 	Beacon Piece Dyeing
and Finishing Co 	(1958) 	121 NLRB 953. 	Where,
during negotiations, 	a union attempts 	to
improve upon or, 	as 	in this case, 	to codify
the 	status quo 	in the 	contract and fails 	to
do so, 	the status quo remains as 	it was
before 	the proposal 	was 	offered. 	The union
has 	lost 	its 	opportunity 	to 	codify the
matter, 	it has 	failed to make the matter
subject 	to 	the 	contract's 	enforcement
procedures 	or 	to 	gain any 	other benefit 	that
might have accrued to 	it 	if 	its 	effort had
succeeded. 	. 	. 	. 	But the union has not
relinquished 	its 	statutory 	right 	to 	reject 	a
management 	attempt 	to unilaterally 	change 	the
status 	quo without 	first 	negotiating with 	the
union. 	In a sentence, 	by dropping its
demand, 	the union loses what 	it 	sought 	to
gain, 	but 	it does not thereby grant
management 	the 	right 	to 	subsequently
institute 	any unilateral 	change 	it 	chooses.
A 	contrary 	rule 	would both 	discourage 	a union
from making proposals 	and management 	from
agreeing 	to any proposals made, 	seriously
impeding 	the 	collective bargaining process.
Beacon Piece, 	supra. 	Id. 	at pp. 	12-13.
-
In this 	case, 	through three successive sets of negotiations 	over
the merit 	article, 	UC-AFT attempted unsuccessfully 	to 	secure
37

mandatory biannual 	merit 	reviews 	for post 	six-year 	lecturers.
Although the parties made 	changes 	in the merit article, 	including
section C.1, in 19 89 	and 1991, 	there 	is no evidence that 	the
parties 	discussed a 	change 	in the 	scope 	of 	the 	last 	sentence 	of
section C.1 and 	that 	UC-AFT 	"consciously yielded" 	its 	interest 	in
continued access 	to merit 	reviews 	for post 	six-year 	lecturers.
Accordingly, 	no waiver is 	found on the basis 	of 	the parties'
bargaining 	history.
The 	remaining waiver defense 	is 	characterized by what 	the
University describes 	as 	"acquiescence by the parties." 	On this
point 	the University argues 	that UC-AFT, 	through its actions
since 	1987 	in bargaining and 	in meetings 	with management
officials at 	the Santa Barbara 	campus, 	demonstrated its belief
that 	the 	University had 	sole 	discretion 	to 	develop 	or 	change
merit 	review practices 	of 	lecturers 	beyond 	the 	two merit 	reviews
mandated by section C.1 of Article XXIII. 	Thus, 	it 	created an
implied waiver by 	accepting 	the 	University's 	position 	and
"acquiescing" 	with 	changes made 	in merit 	review eligibility 	in
1987, 	1988, and 1989.
This 	argument 	is 	not 	only confusing, 	but also unconvincing.
It 	ignores 	the 	fact 	that 	UC-AFT's meetings with the 	Santa Barbara
campus 	administration 	in 	1988 	and 	1989 	concerned 	the 	development
of 	campuswide policy for pre 	six-year, 	not post 	six-year,
lecturers. 	Since 	the University's policies 	and practices
regarding pre 	six-year lecturers 	is not an issue, 	UC-AFT's
actions with respect 	to this group of 	employees 	is 	irrelevant.
38

Prior to February 7, 	1992, 	there is no evidence that 	the
University made 	a 	change 	in 	the 	policy governing merit 	reviews
for post 	six-year lecturers 	from 1987 	forward. 	Clearly, 	UC-AFT
did not 	acquiesce 	in 	the University's 	unilateral 	action 	of
February 	1992. 	Shortly after UC-AFT received notice, 	in January
1992, 	of 	the University's proposed action, 	it demanded to
negotiate 	the 	subject 	and was 	refused. 	This 	argument 	is 	thus
totally without merit.
For 	the 	reasons 	discussed above, 	it 	is 	concluded that 	the
Respondent 	has 	failed 	to prove 	that 	UC-AFT waived 	its 	bargaining
rights under any of 	the 	theories 	asserted.
Lacking evidence 	of a viable defense, 	it 	is 	concluded that
the 	University violated 	section 	3571(c) 	by unilaterally adopting
a merit 	review policy 	for post 	six-year 	lecturers 	at 	the 	Santa
Barbara 	campus 	during 	their 	third 	three-year 	appointment 	without
providing 	UC-AFT with 	notice 	and an 	opportunity 	to meet 	and
confer about 	the 	subject. 	This 	same action changed terms 	and
conditions 	of 	employment 	for the 	affected employees 	in violation
of 	section 3571(a). 	This unilateral action was 	taken in
disregard of 	UC-AFT's 	protest 	and with indifference 	to 	its 	right
and duty 	to 	represent 	the 	rights 	of 	its 	affected unit members.
Therefore, 	it also violated section 3571(b).
Request 	to Amend 	Complaint
In its post 	hearing brief, 	UC-AFT renewed its 	request 	to
amend 	the 	complaint 	to add an allegation 	that 	the University's
adoption of 	the February 	7, 	1992, 	merit 	review policy amounted to
39

an independent violation of 	section 3571(a) 	and 	(b), 	based on
unlawful 	discrimination and 	interference.
UC-AFT argues 	that 	the University's 	policy 	should be 	deemed
"inherently destructive" 	of 	employee's 	rights because 	it 	did not
apply to non-unit 	18 academic employees. 	Instead, 	it 	singled out
unit 	18 members 	for less 	favorable 	treatment because 	of 	their
exercise of 	the right 	to representation. 	Further, 	UC-AFT
contends, 	the consequences of 	the University's action was not
only 	"foreseeable" 	but must have been intended, 	and thus bears
"its own indicia of 	intent." 	Accordingly, 	it argues, 	there is no
need to prove 	the 	traditional 	elements 	of 	a prima 	facie 	case 	of
discrimination 	in order 	to 	establish the 	existence 	of
discrimination.
As noted earlier, 	prior to and during the hearing, 	UC-AFT
sought 	to amend 	the 	complaint 	to add 	the 	theory 	of 	unlawful
discrimination 	resulting 	from 	the 	University's 	unilateral 	change
action. 	The 	University vigorously opposed 	the motion 	in each
instance.
Before 	the 	hearing 	the motion was 	denied by a written order
issued July 22, 	1992. 	At 	the hearing the motion was 	denied on
the 	record.
In 	its 	renewed motion, 	UC-AFT has 	alleged no new facts 	nor
legal 	support beyond those 	raised 	in 	its 	initial motion.
Therefore, 	the 	request 	is denied for the 	same 	reasons articulated
in the July 22, 	1992 	order and again at 	the hearing.
40

CONCLUSION
Based upon 	the 	foregoing 	discussion and 	the 	entire
evidentiary record, 	it has been determined that 	section C.1 of
Article XXIII 	of 	the MOU is 	silent with respect 	to a merit 	review
policy 	for post 	six-year 	lecturers 	on 	their 	third 	or 	subsequent
three-year appointment. 	Further, 	it has been determined that
this 	contractual 	provision does 	not 	grant 	the University 	sole
discretion 	to determine 	the 	eligibility 	for merit 	reviews 	for
this group of employees during the term of 	the MOU. 	Thus, 	the
subject matter was 	one 	over which 	the 	parties 	were 	obligated 	to
meet 	and 	confer.
The 	University violated 	its 	duty 	to meet 	and 	confer with UC-
AFT when 	it 	unilaterally adopted a 	policy 	changing 	the
eligibility requirements 	of merit 	reviews 	for such employees. 	By
doing so, 	the University violated HEERA section 3571(c), 	and
derivatively, 	3571(a) 	and 	(b).
REMEDY
PERB 	is 	empowered to 	issue 	a 	decision and order directing
an 	offending party 	to 	take 	such affirmative 	action as 	will
effectuate 	the policies 	of 	HEERA.
Where 	an 	employer unilaterally 	changes 	terms 	and 	conditions
of 	employment, 	PERB 	typically orders 	employers 	to cease and
desist 	from such unlawful 	actions, 	to 	restore the 	status quo
ante, 	to 	comply with its bargaining obligations with the
exclusive 	representative 	and 	to make 	employees 	whole 	as 	a 	result
41

of 	the unlawful 	unilateral 	change. 	(Rio Hondo Community College
District 	(1983) 	PERB Decision No. 	292.)
Accordingly, 	the University is 	ordered to 	cease 	and desist
from unilaterally 	changing 	the merit 	review policy 	for post 	six-
year lecturers 	embodied by the 	terms 	of 	the 	1991-93 	MOU.
UC-AFT 	seeks 	an 	order 	restoring 	the 	status 	quo 	ante prior 	to
February 	7, 	1992. 	Since 	the unilateral 	change 	occurred during
the 	term of 	the agreement, 	the 	status quo ante 	is determined by
the policy in effect 	during the 	1991-93 	MOU, 	in addition to those
procedures 	developed pursuant 	to this policy. 	The 	status 	quo
established by 	section C.1 of 	Article 	XXIII 	remains 	binding until
it 	is 	replaced by agreement 	of 	the parties 	or until 	the 	contract
as a whole expires. 	It is appropriate, 	therefore, 	to order the
University to 	immediately rescind the 	February 7, 	1992, 	merit
review policy and 	restore 	the 	policy 	created by 	the MOU 	for merit
reviews 	for post 	six-year 	lecturers 	until 	such time 	as 	the
parties 	agree 	to 	its modification or the MOU as 	a whole 	expires.
(See Calexico Unified School District 	(1983) 	PERB Decision No.
357.)
In order to 	create a make whole 	remedy that 	is 	appropriate
to the circumstances 	of 	this 	case, 	it 	is 	important 	to note that
access 	to 	a merit 	review represents 	an opportunity 	to be
considered for a merit 	increase, 	but 	is not a guarantee 	that 	an
increase will 	be granted. 	The University will 	therefore be
ordered 	to provide all 	post 	six-year 	lecturers 	who have 	received
their 	third 	three-year appointments 	an 	opportunity 	for merit
42

review pursuant 	to 	the policy 	established by 	the 	1991-93 	MOU 	for
post 	six-year 	lecturers 	during 	their 	first 	and 	second 	three-year
appointments, 	until 	and unless 	the parties have agreed to 	its
modification.
UC-AFT also 	seeks 	an order directing 	the University 	to
reimburse 	it 	for the 	cost 	of prosecuting this matter. 	In Regents
of 	the University of California 	(1982) 	PERB Decision No. 	253-H,
the 	Board denied 	the 	charging party's 	request 	for attorney's
fees, 	finding that 	the university's 	case was not 	frivolous. 	It
expressly adopted 	for HEERA 	cases 	the 	standard 	for 	awarding
attorneys 	fees 	used 	in cases 	brought 	under 	the 	Educational
Employment Relations Act 	and the Ralph C. 	Dills Act, 	which was
formerly known as 	the 	State 	Employer-Employee Relations Act.
There 	has 	been no 	showing here 	that 	the University's
position 	in 	this matter was 	frivolous 	or taken 	in bad faith. 	It
is 	thus 	inappropriate 	to award attorney's 	fees.
It 	is 	also appropriate 	that 	the University be 	directed 	to
post a notice 	incorporating 	the 	terms 	of 	this 	order. 	Posting 	of
such a notice, 	signed by an authorized agent 	of 	the University,
will 	provide 	employees with notice 	that 	the University has 	acted
in an unlawful manner, 	is being 	required to cease and desist 	from
this 	activity, 	and will 	comply with the 	order. 	It 	effectuates
the purposes 	of 	HEERA that 	employees be 	informed of 	the
resolution of 	the 	controversy and 	the University's 	readiness 	to
comply with the 	ordered remedy. 	(Davis 	Unified School 	District,
43

et al. 	(1980) 	PERB Decision No. 	116; 	see also Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
From the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record in this 	case, 	and pursuant 	to the Higher
Employer-Employee Relations Act 	(HEERA), 	Government Code section
3563.3, 	it 	is hereby ORDERED that 	the Regents of 	the University
of California 	(University), 	its agents and its 	representatives
shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing to meet 	and confer 	in good 	faith with 	the
University Council 	- 	American Federation of Teachers 	(UC-AFT)
over a merit 	review policy 	for unit 	18 members 	who are post 	six-
year 	lecturers 	on 	their 	third 	or 	subsequent 	three-year
appointment 	at 	the 	Santa Barbara 	campus.
2. 	Denying the UC-AFT its 	right 	to represent unit 	18
members 	at 	the 	Santa Barbara 	campus 	by 	failing 	to meet 	and 	confer
about matters within 	the 	scope 	of 	representation.
3. 	Interfering with the 	right 	of unit 	18 members 	at
the 	Santa 	Barbara 	campus 	to 	select 	an exclusive 	representative by
failing 	to meet 	and negotiate 	about matters 	within the 	scope 	of
representation with 	the UC-AFT.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF HEERA:
1. 	Immediately 	rescind 	the merit 	review policy
adopted 	for unit 18 	employees 	at 	the 	Santa Barbara 	campus 	on
February 7, 	1992, 	and restore 	the merit 	review policy 	in effect
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pursuant 	to 	the 	terms 	of 	the 	1991-93 	Memorandum of 	Understanding
(MOU) 	between UC-AFT and the University until 	the meet 	and 	confer
process 	described above 	is 	completed, 	either by agreement 	of 	the
parties 	or after 	completion of 	the University's 	obligations 	under
the 	impasse procedures 	outlined by HEERA section 	3590 	et 	seq.
2. 	Provide lecturers at 	the Santa Barbara 	campus, 	who
were adversely affected by the 	February 	7, 	1992 	policy, 	with an
opportunity 	for merit 	review pursuant 	to 	the merit 	review policy
in effect by the 	terms 	of 	the 	1991-93 MOU, 	until 	or unless UC-AFT
and 	the University agree 	to modify 	the policy or 	the MOU expires.
3. 	Within ten 	(10) 	days 	of a 	final 	decision in this
matter, 	post 	copies 	of 	the Notice 	attached hereto as 	an Appendix
at 	all 	work locations 	at 	the 	Santa Barbara 	campus where notices
to 	employees 	are 	customarily placed. 	The Notice must be 	signed
by an authorized agent 	of 	the University, 	indicating 	that 	it 	will
comply with the 	terms 	of 	this 	Order. 	Such posting will 	be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to ensure 	that 	the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or 	covered by any other
material.
4. 	Upon issuance of a 	final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	this 	Order 	to
the 	San 	Francisco Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	the Director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
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final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
2 0 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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code 	of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 	Cal. 	Code 	of 	Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
W. 	JEAN 	THOMAS
Administrative 	Law Judge
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