Regents of the University of California (Federated University Police Officer’s Association) (PERB 1271H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FEDERATED 	UNIVERSITY 	POLICE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SA-CE-101-H
PERB Decision No. 	1271-H
June 30, 	1998
Appearances: 	Mastagni, 	Holstedt 	& Chiurazzi by Curtis S.
Leavitt, 	Attorney, 	for Federated University Police Officers
Association; 	Edward M. Opton, 	Jr., 	University Counsel, 	for
Regents 	of 	the University of 	California.
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Federated
University Police 	Officers Association 	(FUPOA) 	of 	a Board agent's
partial 	dismissal 	(attached) 	of 	its unfair practice charge.
FUPOA alleges 	that 	the Regents 	of 	the University of 	California
(University) 	violated 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA) 	section 3571(a), 	(b) 	and 	(c)1 by altering
1HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3571 provides, 	in pertinent 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
)
)
)
)
)
)
)
)
)
)
)
_______________ )

general 	work orders 	of University police 	officers 	without 	having
negotiated with 	FUPOA prior 	to 	the 	change.
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.
FUPOA claims 	that on July 18, 	1997, 	the University of
California, 	Los Angeles and University of California, 	Irvine
altered 	their General 	Orders 	when they 	issued a 	listing 	of
"prohibited activities" 	allegedly limiting 	outside 	employment 	of
the police 	officers 	represented by 	FUPOA. 	FUPOA claims 	that 	this
is 	a unilateral 	change 	in University policy.
We 	agree with 	the Board agent 	that 	FUPOA has 	failed 	to
allege a prima 	facie 	case 	of a violation, 	and 	find 	further 	that
FUPOA's 	appeal 	of 	the Board agent's 	dismissal 	fails 	to 	comport
with the 	requirements 	of 	PERB Regulation 32635.2 In 	its appeal,
FUPOA makes 	new allegations 	and presents 	new evidence 	not
previously offered, 	without 	any showing of 	good cause.
Accordingly, 	the new allegations 	and evidence 	have not been
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	The Board notes 	that
PERB Regulation section 32635(b) 	states:
Unless good cause 	is 	shown, 	a charging party
may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
22

considered by 	the 	Board. 	(Santa Clarita 	Community 	College
District 	(1996) 	PERB Decision No. 	1178.) 	As 	the University
points 	out 	in its 	opposition to FUPOA's 	appeal, 	FUPOA should have
amended 	its 	charge 	and presented any new 	charges 	it 	now makes 	or
any new evidence 	to 	the 	Board agent.
The Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the 	Board 	agent's 	partial 	warning 	and dismissal
letters, 	the unfair practice charge, 	FUPOA's appeal, 	and the
University's 	response. 	The 	Board 	finds 	the partial 	warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and, 	therefore,
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SA-CE-101-H is hereby AFFIRMED.
Chairman 	Caffrey and Member 	Johnson 	joined 	in 	this 	Decision.
33

STATE OF CALIFORNIA 	- 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
March 31, 	1998
Curtis S. 	Leavitt, 	Esquire
Mastagni, 	Holstedt 	& Chiurazzi
1912 	I Street
Sacramento, 	California 	95814
Re: 	Federated University Police 	Officers 	Association v.
Regents 	of 	the 	University 	of 	California
Unfair Practice 	Charge No. 	SA-CE-101-H
PARTIAL 	DISMISSAL 	LETTER
Dear Mr. 	Leavitt:
On January 20, 	1998, 	you filed the above-captioned unfair
practice 	charge 	on behalf 	of 	Federated University 	Police 	Officers
Association 	(FUPOA). 	The charge 	alleges 	that 	the Regents of 	the
University of 	California 	(UC), 	specifically at 	the Los Angeles
(UCLA) 	and Irvine campuses, 	violated sections 3571(a), 	(b) 	and
(c) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA) 	when they altered general work orders 	of police 	officers
at 	those 	campuses 	without 	having negotiated with the 	exclusive
representative, 	FUPOA, 	prior to its 	implementation of 	the new
policies. 	More 	specifically, 	UCLA allegedly altered 	its General
Order 15 on July 18, 	1997, 	when it 	limited the types of outside
employment 	its police officers 	could perform. 	Likewise 	at
Irvine, 	UC altered its General 	Order 46, 	similarly limiting
outside 	employment 	for police 	officers 	employed at 	that 	campus.
I 	indicated to you, 	in my attached letter dated March 16, 	1998,
that 	certain allegations 	contained 	in 	the 	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 these
allegations 	to 	state 	a prima 	facie 	case 	or withdrew them prior 	to
March 24, 	1998, 	the allegations would be dismissed.
You were granted an extension of 	time until March 30, 	1998, 	to
amend this 	charge. 	I 	have 	not 	received either 	an amended charge
or a request 	for withdrawal. 	Therefore, 	I 	am dismissing those
allegations which 	fail 	to 	state 	a prima 	facie 	case based on 	the
facts and reasons 	contained in my March 16, 	1998, 	letter.

Partial 	Dismissal 	Letter
SA-CE-101-H
Page 2
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	certain 	allegations
contained 	in 	the 	charge 	by 	filing 	an 	appeal 	to 	the 	Board 	itself
within twenty 	(20) 	calendar days 	after 	service 	of 	this 	dismissal.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32635(a).) 	To be timely filed,
the 	original 	and 	five 	copies 	of 	such 	appeal 	must 	be 	actually
received by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5 p.m.) 	or sent by telegraph, 	certified or Express United States
mail 	postmarked no 	later 	than 	the 	last 	date 	set 	for 	filing.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135.) 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file 	a timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 	8, 	sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for 	an extension of 	time, 	in which to 	file 	a 	document
with the 	Board 	itself, 	must 	be 	in writing and 	filed with the
Board at 	the 	previously noted 	address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration 	of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

Partial 	Dismissal 	Letter
SA-CE-101-H
Page 3
Final 	Date
If no 	appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Roger Smith
Board 	Agent
Attachment
cc: 	Edward M. 	Opton Jr.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
Curtis S. 	Leavitt, 	Esquire
Federated 	University 	Police 	Officers 	Association
1912 	I Street
Sacramento, 	California 	95814
Re: 	Federated University Police Officers Association v. 	Regents
of 	the 	University of 	California
Unfair Practice 	Charge No. 	SA-CE-101-H
PARTIAL 	WARNING 	LETTER
Dear Mr. 	Leavitt:
On January 20, 	1998, 	you 	filed the 	above-captioned unfair
practice 	charge 	on 	behalf 	of 	Federated University 	Police 	Officers
Association 	(FUPOA). 	The 	charge alleges 	that 	the Regents 	of 	the
University of 	California 	(UC), 	specifically at 	the Los Angeles
(UCLA) 	and Irvine campuses, 	violated sections 3571(a), 	(b) 	and
(c) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA) 	when they altered general 	work orders 	of police 	officers
at 	those 	campuses 	without 	having negotiated with 	the 	exclusive
representative, 	FUPOA, 	prior to its 	implementation of 	the new
policies. 	More 	specifically, 	UCLA allegedly altered 	its 	General
Order 15 	on July 18, 	1997, 	when it limited the types of outside
employment 	its 	police officers 	could perform. 	Likewise 	at
Irvine, 	UC altered its General 	Order 46, 	similarly limiting
outside 	employment 	for police 	officers 	employed at 	that 	campus.
FUPOA asserts 	that 	it 	did not 	receive 	notice 	of 	either of 	these
changes 	in General 	Orders 	until 	late August 	1997. 	FUPOA and UC
while 	in the 	course 	of negotiating its 	first 	agreement,
negotiated 	an 	interim Rights 	Agreement 	which was 	initialed 	on
April 	3, 	1997 and provides:
The University 	shall 	have 	the 	right 	to plan,
direct, 	manage and control 	the use of
resources 	and personnel 	to 	achieve 	the
University's missions, programs, 	objectives,
activities 	and priorities; 	. . . 	to
implement, 	continue, modify, 	change, 	or
discontinue any policies, 	practices, 	rules or
regulations 	including 	but 	not 	limited 	to 	. . .
the 	campus general orders, 	the departmental
policies 	and procedures, 	department 	orders,
work 	rules 	. . . . 	(emphasis 	added)
This 	agreement 	also 	provides 	that 	UC 	should provide 	notice 	to
FUPOA, 	where possible, 	of 	an intent 	to change policies with at
least 	thirty 	(30) 	calendar days notice, 	so that 	FUPOA could
request 	a meet 	and 	discuss 	opportunity.
- 	~---===-- 	-

SA-CE-101-H
Partial 	Warning 	Letter
Page 2
In 	determining whether 	a party has 	violated HEERA 	section
3571(c), 	PERB utilizes either the 	"per se" 	or 	"totality of
the 	conduct" 	test, 	depending on the 	specific 	conduct 	involved
and the 	effect 	of 	such 	conduct 	on the 	negotiating process.
(Stockton Unified 	School 	District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes 	are 	considered 	"per 	se" 	violations 	if 	certain
criteria are met. 	Those 	criteria are: 	(1) 	the 	employer
implemented 	a 	change 	in policy concerning 	a matter within 	the
scope of 	representation, 	and 	(2) 	the change was 	implemented
before 	the 	employer 	notified 	the 	exclusive 	representative 	and
gave 	it 	an opportunity to 	request 	negotiations. 	(Walnut 	Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant 	Joint
Unified High School 	District 	(1982) 	PERB Decision No. 	196.)
In Mammoth Unified School 	District 	(1983) 	PERB Decision No. 	371,
PERB 	held 	that 	a 	general 	management-rights 	clause 	allowed 	the
employer's 	unilateral 	imposition of 	a 	short 	disciplinary
suspension despite 	the 	fact 	the 	subject 	matter was 	never
specifically contemplated or negotiated. 	In the 	instant 	case,
FUPOA authorized UC 	to 	change 	campus 	general 	orders 	so 	long 	as 	it
was 	notified 	and given 	the 	opportunity 	to 	discuss 	the 	changes.
FUPOA has 	argued 	that 	as 	a 	result 	of 	these 	and other 	changes 	UC
implemented on 	unit 	members, 	you 	effectively rescinded the 	Rights
Agreement of April 	3, 	1997, 	through an October 14, 	1997 	letter to
Jim Phillips, 	the 	labor 	relations 	director 	for UC.
You 	have 	provided 	no 	authority 	for me 	to 	find 	that 	the April 	3,
1997 	agreement 	is 	no 	longer in effect. 	The 	agreement 	contains
language 	that 	it 	shall 	remain 	in effect 	for the 	"duration of 	the
negotiations 	process 	and until 	the 	completion 	of 	the 	HEERA
process 	to establish wages, 	hours 	and working conditions 	for this
bargaining unit."
Based on my investigation, 	you have not 	established a 	case 	of
unilateral 	change 	regarding 	the 	employer's 	decision 	to 	change 	the
Campus 	General 	Orders. 	The 	employer 	is 	permitted under 	the
Rights Agreement 	to change 	the General 	Orders. 	Failure 	to
provide 	notice 	and 	an 	opportunity 	to 	consult 	is 	a separate
allegation.
For 	these 	reasons 	the 	allegation 	that 	UC unilaterally 	implemented
a 	new policy relevant 	to 	outside 	employment 	for police 	officers,
at 	UC 	Irvine 	and UCLA 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 March 24, 	1998, 	I 	shall dismiss the above-
described allegation 	from your 	charge. 	If 	you 	have 	any
questions, 	please call me at 	(916) 	322-3198 ext. 	358.
SA-CE-101-H
Partial 	Warning 	Letter
Page 3
Sincerely,
Roger 	Smith
Board 	Agent