Regents of the University of California (Woods, et al.) (PERB 1189H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN R. WOODS, et al.,
Charging Parties, Case No. LA-CE-449-H
Vv. PERB Decision No. 1189-H

REGENTS OF THE UNIVERSITY OF March 19, 1997

CALIFORNIA,

Respondent.

Tee eet eet ee ee eee ee he et he

Appearances; University Professional and Technical Employees,
CWA Local 9119, AFL-CIO by Cliff Fried for John R. Woods, et al.;
Leslie L.:' Van Houten, Attorney, for Regents of the University of
California.

Before Caffrey, Chairman; Johnson and Dyer, Members.

DECISION
DYER, Member: This case comes before the Public Employment

Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of an unfair practice charge. As amended, the charge
alleged that the Regents of the University of California
(University) violated unspecified sections of the Higher
Education Employer-Employee Relations Act (HEERA)* when it served
layoff notices on the Charging Parties without first providing

them with notice and an opportunity to meet and discuss the

decision to layoff and the effects thereof.’

“HEERA is codified at Government Code section 3560 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code.

*Although the charge does not allege that the University's
conduct violated any specific section of the HEERA, a refusal to
meet and discuss with a non-exclusive representative is a
potential violation of HEERA section 3571(a). (See Regents of

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	Charging Parties' 	original 	and amended unfair
practice 	charge, 	the warning and dismissal 	letters, 	Charging
Parties' 	appeal 	and the University's 	response 	thereto.3 The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	from
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-449-H is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
the University of 	California 	(1991) 	PERB Decision No. 	891-H at
proposed decision pp. 	16-17 	(noting 	that 	non-exclusive
representative has 	no 	independent 	right 	to 	represent).) 	HEERA
section 3571 provides, 	in part:
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.
3Charging Parties' 	appeal 	includes a number of 	supporting
documents which were not part 	of 	the 	record before 	the Board
agent. 	Because 	Charging 	Parties 	have not provided good cause why
this 	evidence 	could not 	have been presented during 	the 	Board
agent's 	investigation, 	the Board has 	not 	considered these
documents 	in making 	its 	decision. 	(PERB 	regulations 	are 	codified
at California Code of Regulations, 	title 	8, 	section 31001 et
seq.; 	see PERB Reg. 	sec. 	32635(b).)
22

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
October 25, 	1996
Cliff 	Fried, 	Vice-President
University 	Professional 	and
Technical 	Employees, 	CWA Local 	9119
1015 Gayley Avenue, 	Suite 	115
Los Angeles, 	California 	90024
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-449-H, 	John R. 	Woods. 	Claudia L. 	Beard.
Gary C. 	Parham, 	Margaret 	Saunders 	and Penny L. 	Temple v.
Regents 	of 	the 	University 	of 	California
Dear Mr. 	Fried:
In the above-referenced charge, 	filed on March 26, 	1996, 	and
amended on April 	15, 	1996, 	Charging Parties allege 	that 	the
University 	of 	California 	(University) 	laid them off 	without 	an
opportunity 	to meet 	and discuss. 	This 	conduct 	is 	alleged to
violate Government 	Code 	section 	3571 	of 	the 	Higher Education
Employer-Employee Relations Act 	(HEERA).
I indicated 	to you, 	in my attached letter dated August 	27, 	1996,
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 September 	6, 	1996, 	the 	charge would be
dismissed. 	I 	later extended 	that 	deadline.
On September 16, 	1996, 	you filed an amended charge, 	adding the
following allegation to 	the 	original 	charge:
By 	the above acts, 	and despite 	requests 	by the
charging parties 	and 	their representative, 	the
University has 	violated 	the Act 	by 	failing 	to
meet 	its 	obligations 	to meet 	and discuss
regarding 	the 	impact 	and 	effects 	of 	the 	layoffs
on 	the 	charging parties 	and other 	employees.
Those matters 	which 	the 	charging parties 	desire
to 	address 	in meet 	and discuss 	sessions
included, 	but 	are not 	limited to 	retraining of
laid off 	employees; 	benefits 	for laid off
employees; 	severance pay; 	recall and
reemployment rights; 	options 	in lieu of
layoffs; 	assignment 	of work among 	remaining
employees, etc.

LA-CE-449-H
October 25, 	1996
Page 2
Several documents are attached to the amended charge, 	but in none
of 	those documents is there a request to meet and discuss the
effects of Charging Parties' 	layoffs, 	nor is there a refusal by the
University to meet and discuss 	those effects.
Both originally and as amended, 	the charge does not specifically
allege 	that 	Charging Parties 	actually requested to meet 	and discuss
the effects of their layoffs. 	On the contrary, 	the charge alleges
that letters dated March 14 and 20, 	1996, 	outlined Charging
Parties' 	position on the layoffs. 	Those letters 	(attached to the
original 	charge) 	protested the layoffs themselves but did not
request to meet and discuss their effects. 	As noted in my letter
of August 27, 	1996, 	Charging Parties received notice on or about
March 12, 	1996, 	that they would be laid off effective April 10,
1996.
Based on the 	facts stated above, 	the amended charge still does not
state a prima facie violation of HEERA, 	for the reasons that
follow.
In Newman-Crows Landing Unified School District (19 82) PERB
Decision No. 	223, 	PERB held that there must be an actual request to
negotiate the effects of a layoff, 	as distinct from a request to
negotiate the layoff decision itself. 	In the present case it
appears that, 	during the four weeks between the layoff notices and
the actual layoffs, 	Charging Parties protested the layoff decisions
but did not request to meet and discuss the effects. 	Furthermore,
it does not appear from the charge that even in the six months
since 	their layoffs Charging Parties have actually requested to
meet and discuss the effects of their layoffs, 	or that the
University has 	refused to meet and discuss those effects.
I am therefore dismissing the charge, 	based on the 	facts and
reasons 	contained in this letter and my August 27 	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-449-H
October 25, 	1996
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
August 27, 	1996
Cliff Fried, 	Vice-President
University Professional 	and
Technical Employees, 	CWA Local 9119
1015 Gayley Avenue, 	Suite 115
Los Angeles, 	California 	90024
Re: 	WARNIN
==---=---=-----=----
G LETTER, 	Unfair Practice Charge
John R. Woods. 	Claudia L. 	Beard. Gary
Saunders and Penny L.-_---	Temple v. 	Regent
California ---
No. 	LA-CE-449-H,
C. 	Parham. Margaret
s of the University of
Dear Mr. 	Fried:
In the above-referenced charge, 	filed on March 26, 	1996, 	and
amended on April 15, 	1996, 	Charging Parties allege that the
University of 	California 	(University) 	laid them off without an
opportunity to meet and discuss. 	This conduct is alleged to
violate Government Code section 3571 of the Higher Education
Employer-Employee Relations Act 	(HEERA).
My investigation of the charge reveals the following.
Charging Parties were employed at 	the University's UCI Medical
Center 	(UCIMC) 	in a unit 	for which there is no exclusive
representative. 	On or about March 12, 	1996, 	Charging Parties
received letters 	form the University stating in part as 	follows:
It 	is with regret that 	I must inform you that
your position will be 	subject 	to indefinite
layoff, 	effective April 10, 	1996. 	This
action has become necessary due to the
current 	fiscal situation at UCI Medical
Center.
Charging Parties allege in part as 	follows:
UCIMC did not place before employees
including myself any proposals 	to deal with
their preceived 	[sic] 	financial problems.
Under HEERA standing policy and 	case
decisions prior to any change in my
conditions of employment I have a right to
Meet and Discuss 	in good faith with UCIMC on
the issues. 	At no time was I presented
UCIMCs plans and given time to contact my
Union of choice, 	obtain relevant information
and enter into a good faith meet and discuss

LA-CE-449-H
August 27, 199 6
Page 2
process. 	In fact 	I was handed a 30 	day
notice 	and was 	given no 	time 	to address 	the
issues 	which brought 	about 	the 	action against
me.
In 	summary 	this 	charge 	contends 	that 	UCIMC
violated 	HEERA when 	it 	unilaterally 	changed
the 	working 	conditions 	of 	the 	charging
parties 	by not properly notfying 	[sic] 	me 	in
advance 	of 	the 	actual 	reorganization plans
for all 	of 	the 	effected 	[sic] 	departments
including my own: 	Therefore 	interferring
[sic] 	with my right 	to 	contact my union and
set 	up 	the Meet 	and Discuss 	process 	prior 	to
my actual 	layoff 	and 	the 	changes 	in 	the
departments at UCIMC.
Based on 	the 	facts 	stated above, 	the 	charge 	does 	not 	state a
prima 	facie violation of 	the HEERA, 	for the 	reasons 	that 	follow.
In Regents 	of 	the University of 	California v. 	Public 	Employment
Relations Board 	(1985) 	168 Cal.App.3d 937, 	945, 	the court
interpreted 	the 	right 	of 	nonexclusively-represented 	employees 	to
be 	represented 	on 	employment 	matters 	as 	follows:
Under 	these 	practices 	[approved by 	the
court], 	the University notifies individual
employees 	of proposed 	changes 	in employment
conditions 	and, 	if 	the employee chooses 	to
have 	his 	or her union meet 	with 	the 	employer
to discuss 	the changes, 	such meetings are
held 	upon 	request.
HEERA section 3562(g)(1), 	however, 	states that the 	"scope of
representation" 	for University 	employees 	"shall 	not 	include" 	the
following:
Consideration of the merits, 	necessity, 	or
organization of any service, 	activity, 	or
program 	established 	by 	law 	or 	resolution 	of
the 	regents 	or the directors, 	except 	for the
terms 	and 	conditions 	of 	employment 	of
employees 	who may be 	affected 	thereby.
Furthermore, 	in Newman-Crows 	Landing Unified School 	District
(19 82) 	PERB Decision No. 	223, 	PERB held as follows:
The 	layoff 	of 	employees 	unquestionably
impacts on their wages, 	hours, 	and other

LA-CE-449-H
August 27, 	1996
Page 3
conditions 	of 	employment. 	It may
concurrently 	impact 	upon 	those 	employees 	who
remain. 	Nevertheless, 	the determination that
there 	is 	insufficient 	work 	to 	justify 	the
existing 	number 	of 	employees 	or 	sufficient
[sic] 	funds 	to support 	the work force, 	is a
matter 	of 	fundamental 	managerial 	concern
which 	requires 	that 	such decisions 	be 	left 	to
the 	employer's 	discretionary prerogative.
Although 	this 	holding was 	made 	under 	the 	Educational 	Employment
Relations Act 	(EERA) , 	there appears 	to be no reason to 	find a
more 	limited 	employer prerogative under HEERA. 	It 	therefore
appears 	that 	the 	reorganization and 	layoffs 	at 	UCIMC were 	outside
the 	scope 	of 	representation and 	therefore 	outside 	the
University's 	duty 	to meet 	and discuss.
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 	First Amended 	Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge 	or withdrawal 	from you before September 	6, 	1996, 	I
shall 	dismiss your 	charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney