Regents of the University of California (PERB 0654H)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF TEACHERS,
LOCAL 	1474,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case 	No. 	S-CE-29-H
PERB 	Decision 	No. 	654-H
December 	31, 	1987
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Appearances: 	Van Bourg, 	Weinberg, 	Roger 	& 	Rosenfeld by Stewart
Weinberg 	for American Federation of 	Teachers, 	Local 	1474;
Marcia J. 	Canning 	for 	Regents 	of 	the 	University of 	California.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Cordoba,
Members.
DECISION
SHANK, 	MEMBER: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on appeal by the American
Federation of Teachers, 	Local 	1474 	(Charging Party), 	of the
general 	counsel's 	dismissal 	of 	its 	charge 	that 	the 	Regents 	of
the 	University of 	California 	(Respondent 	or 	University)
violated sections 3571(a), 	(b) 	and 	(c), 	3565 and 3570 of the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA 	) 	by
1 HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	are
to the Government Code. 	Section 3571 	states, 	in relevant part:
It 	shall be 	unlawful 	for 	the higher
education 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
______ )
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unilaterally 	discontinuing 	its 	policy 	of 	employing 	lecturers
already 	employed by 	the 	University 	for 	additional 	service 	as
lecturers 	in 	the 	Rhetoric 	Department.
on employees, 	to discriminate or 	threaten 	to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring 	with 	an 	exclusive 	representative.
After 	reviewing 	the 	record, 	we 	find 	that 	Charging 	Party has
presented 	factual 	allegations 	sufficient 	to 	state 	a prima 	facie
case 	and we 	reverse 	the 	dismissal 	consistent 	with 	the
discussion 	below.
FACTUAL 	AND 	PROCEDURAL 	SUMMARY
PERB 	Regulation 	326152 sets 	forth 	the 	required 	contents
of 	an 	unfair 	labor 	practice 	charge 	and 	obligates 	the 	charging
party to, 	inter alia, 	set 	forth 	in 	its 	charge 	"[a] 	clear 	and
concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute 	an unfair 	practice." 	PERB 	Regulation 	32630
authorizes 	dismissal 	and 	refusal 	to 	issue 	a 	complaint 	"[i]f 	the
Board 	agent 	concludes 	that 	the 	charge 	or 	the 	evidence 	is
insufficient to establish a prima facie case 	. 	. 	. 	."
2PERB 	Regulations 	are 	codified 	in 	the 	California
Administrative Code, 	title 	8, 	part 	III, 	section 31001 et seq.
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In 	its 	first 	amended 	charge,3 Charging 	Party alleges 	that
it 	is 	the 	exclusive 	representative of 	certain employees
classified 	as 	part-time 	lecturers 	and 	employed by 	Respondent 	at
its 	Davis 	campus. 	Charging Party 	further 	alleges 	that, 	"The
policy of 	the 	employer had, 	for years, 	been to employ part-time
lecturers 	already 	employed by 	the 	university 	for 	additional
service 	on campus." 	The 	first 	amended 	charge 	states 	that 	in
June, 	1986, 	and at 	the 	time 	Charging Party and 	Respondent were
meeting 	and 	conferring 	relative 	to 	a memorandum 	of
understanding, 	Respondent 	announced 	that 	it would hire 	six
full-time 	visiting 	lecturers, 	including 	three 	individuals 	not
previously 	employed by 	the 	university 	and 	would 	not be 	able 	to
employ 	any part-time 	visiting 	lecturers 	during 	the 	coming
year. 	Charging 	Party 	included 	in 	its 	first 	amended 	charge, 	as
Exhibit 	A, 	a memo 	from 	Respondent's 	Department 	of 	Rhetoric
dated June 	24, 	1986, 	which 	identified the 	six 	full-time
visiting 	lecturers 	scheduled 	to begin Fall, 	1986. 	The memo
stated, 	inter alia, 	". 	. 	.a number of 	changes have been
necessitated by events 	. 	. 	."
The 	decision 	to hire 	full-time 	lecturers 	exclusively and 	to
fill 	three 	of 	the 	positions 	from outside 	the 	University was
3The 	initial 	charge 	was 	filed by 	the 	Charging 	Party 	on
December 22, 	1986. 	On February 10, 	1987, 	the regional attorney
informed 	Charging 	Party 	in writing 	that 	the 	above-referenced
charge 	failed 	to 	state a prima 	facie 	case 	and advised 	that,
unless 	the 	charge 	was 	amended 	accordingly or withdrawn prior 	to
February 19, 	1987, 	it would be dismissed. 	On
February 18, 	1987, 	an amended charge was 	filed.
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alleged 	to 	constitute a unilateral 	change 	without 	notice 	to 	the
Charging 	Party 	and 	without 	giving 	the 	Charging 	Party 	an
opportunity to bargain about 	the 	changes 	in policy or 	impact
upon 	the bargaining 	unit.
The 	regional 	attorney 	charged 	with 	investigating 	this
matter 	found 	that 	the 	Charging 	Party 	failed 	to 	state 	a 	prima
facie 	case 	and 	thus 	dismissed 	the 	charge. 	He 	stated 	Charging
Party 	failed 	to 	demonstrate 	a policy 	existed 	regarding 	the
employment 	of bargaining 	unit 	employees 	for 	additional
employment 	as 	lecturers. 	He 	indicated 	that 	Respondent provided
information 	that 	it 	had 	consistently hired 	according 	to 	a
priority 	system established 	in 	1982, 	wherein 	full-time
lecturers 	are hired 	first, 	teaching assistants 	and 	associates
in 	rhetoric 	second 	and part-time 	lecturers 	last^ 	He 	also
indicated 	that 	the 	charge 	does 	not 	explain 	which 	departments
are 	alleged 	to be 	affected by 	the 	change 	or 	describe 	the 	impact
upon 	the 	employees 	which 	the 	Charging 	Party 	represents.
On appeal, 	the 	Charging Party argues 	that 	the 	general
counsel 	has 	exceeded 	his 	jurisdiction by 	receiving 	and 	weighing
certain 	evidence 	received 	from 	Respondent. 	Furthermore, 	the
Charging 	Party claims 	that 	general 	counsel 	is mistaken with
regard 	to 	the 	substance 	of 	the 	first 	amended charge. 	The
Charging 	Party 	asserts 	that 	evidentiary 	determinations 	should
be 	made 	only by 	a hearing 	officer 	and 	cites 	Regulation 	32180,
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which 	provides 	that 	each party to a hearing 	shall have 	the
right 	to 	appear 	in person or by counsel 	and 	to examine 	and
cross-examine 	witnesses 	and 	introduce 	documentary 	and 	other
evidence.
DISCUSSION
The 	only 	issue here 	is 	whether 	sufficient 	facts 	were
alleged 	to 	state 	a prima 	facie 	case 	of 	unlawful 	unilateral
change.44 	To 	state 	a prima 	facie 	case, 	the Charging Party
must 	allege 	facts 	indicating 	that 	action was 	taken which
changed 	the 	status 	quo regarding 	a matter 	within 	the 	scope 	of
representation without 	giving 	the 	exclusive 	representative
notice and the opportunity to bargain, 	or, 	if negotiations have
occurred, 	that 	the matter was 	not negotiated to agreement or
impasse 	prior 	to the 	implementation of 	the 	change.
San Francisco Community 	College 	District 	(1979) 	PERB 	Decision
No. 	105. 	The change 	of policy must have 	a generalized effect
4 In 	reviewing 	the 	dismissal 	of 	a 	charge 	for 	failure 	to
state a prima 	facie case, 	the essential 	facts alleged 	in the
charge 	are presumed 	to be 	true. 	San Juan Unified 	School
District 	(1977) 	EERB Decision No. 	12. 	(Prior to January 1,
1978, 	PERB was known as 	the Educational 	Employment 	Relations
Board 	[EERB].); 	State of California 	(Dept, 	of Transportation)
(1983) 	PERB Decision No. 	333-S.
The 	dissent 	asserts 	that 	in order 	to 	state a prima 	facie
case, 	the 	Charging 	Party 	should have 	stated 	facts 	sufficient 	to
indicate 	a 	previous 	policy regarding 	the hiring 	of 	part-time
lecturers. 	Furthermore, 	the 	charge 	should allege 	that 	the
change 	in policy 	impacted 	the 	terms 	and 	conditions 	of
employment. 	While 	we 	agree 	that 	a charge must 	contain 	facts
sufficient 	to constitute a prima 	facie 	case, 	we believe 	that
the 	facts 	alleged 	in 	this 	particular 	charge have been minimized
by 	the 	dissent.
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or 	continuing 	impact 	upon 	the 	terms 	and 	conditions 	of
employment 	of bargaining unit 	members before 	it 	constitutes 	a
violation of 	the 	duty to bargain. 	Grant 	Joint 	Union High
School 	District 	(1982) 	PERB Decision No. 	196; 	Modesto City
Schools 	and High School 	District 	(1985) 	PERB Decision No. 	552.
Here, 	the Charging Party alleges 	that, 	by hiring 	three
full-time 	visiting 	lecturers 	not 	previously 	employed, 	the
University 	unlawfully 	reduced 	the 	available 	employment
opportunities 	for 	those 	lecturers 	currently 	employed by 	the
University.55 	Although Charging Party's 	charge 	is 	lacking 	in
specifics 	and 	could have been 	stated with 	greater 	clarity, 	we
find 	that 	the 	allegations 	are 	sufficient 	to 	state 	a prima 	facie
55we	we 	do not 	share 	the 	dissent's 	concern of 	whether 	or 	not
the 	charge 	alleges 	that 	part-time 	instructors 	were 	"always
employed" 	or 	"merely offered 	employment" 	by 	the 	University 	in
the past. 	Regardless 	of which 	interpretation 	is 	applied 	to 	the
allegation, 	the 	charge clearly alleges: 	a) 	past policy had
been 	to 	offer 	increased 	lecturing 	opportunities 	to 	lecturers
currently employed by the 	University; 	b) 	the 	decision 	to hire
the 	full-time 	visiting 	lecturers 	from 	outside 	the 	University
constituted 	a unilateral 	change; 	and 	c) 	this 	change had 	an
impact 	on 	the 	terms 	and 	conditions 	of 	employment 	of bargaining
unit 	employees.
This 	reading of 	the 	charge 	is 	easily 	inferred, 	if not
self-evident, 	from 	the 	facts 	alleged. 	Far 	from being easily
disposable 	as 	a matter 	of 	management prerogative, 	and 	therefore
out of 	scope, 	the 	charge 	raises bona 	fide 	issues of whether 	the
part-time 	lecturers had 	"incumbent 	rights" 	in 	the positions
filled, 	(a bargainable 	issue, 	cf. 	Healdsburg Union High School
District, 	et al. 	(1984) 	PERB Decision No. 	375). 	Moreover, 	the
unfair 	labor 	practices 	attendant 	to 	violations 	of 	these 	rights
could 	exist 	even 	under 	the policy 	claimed by 	the 	University
(i.e., 	it wouldn't matter 	in what 	order 	the 	University hired,
if 	the policy 	issue 	concerned only the 	source 	of 	the hires).
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case and, 	therefore, 	direct 	that a complaint 	issue as 	to this
charge. 	We 	find 	that whether 	or 	not 	Respondent 	in 	fact had 	a
policy 	or 	practice 	wherein 	lecturers 	already 	employed by 	the
University were 	employed 	for 	additional 	service 	as 	lecturers,
and 	whether 	such policy or 	practice 	was 	unilaterally 	changed,
are 	factual 	questions 	to be 	determined 	after 	a hearing. 	As
this 	board 	noted 	in 	Rio Hondo 	Community 	College 	District 	(1982)
PERB Decision No. 	279;
The nature 	of existing policy 	is 	a question
of 	fact 	to be 	determined 	from 	an 	examination
of 	the record as 	a whole. 	It 	may be
embodied 	in the 	terms 	of 	a 	collective
agreement 	(Grant, 	supra, 	[(1982) 	PERB
Decision No. 	196]). 	In the absence of such
a 	contract 	provision, 	existing policy may be
ascertained by 	examining 	past 	practice
(Pajaro Valley, 	supra, 	[(1978) 	PERB Decision
No. 51]) or . 	. 	. other evidence. 	. 	. 	.
Finally, 	we note 	that 	the 	Charging Party 	in 	its 	appeal 	from
the 	dismissal 	expressed 	concern 	that 	the 	general 	counsel's
office 	is 	attempting 	to exceed 	its 	authority. 	We do not
believe 	that 	the 	regional 	attorney misunderstood 	PERB
regulations 	by attempting 	to 	compel 	the 	Charging 	Party 	to prove
its 	case 	on paper 	without 	the benefit 	of 	cross-examination 	and
confrontation of witnesses. 	Nor does 	the 	fact 	that 	the 	general
counsel's 	office 	does 	not 	prosecute 	unfair 	labor 	practice
charges 	undercut 	the agency's 	right, 	through 	investigation, 	to
screen out 	charges 	that 	are 	nonmeritorious 	as 	a matter 	of 	law.
However, 	we 	do not believe 	that 	the 	information 	requested by
the 	general 	counsel 	in this 	instance was 	essential 	to reach a
conclusion 	that 	a prima 	facie 	case 	had been 	stated.
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ORDER
Based 	on 	the 	record, 	it 	is hereby ORDERED 	that 	the 	regional
attorney's 	dismissal 	of 	the 	charge 	in 	Case 	No. 	S-CE-29-H 	is
REVERSED 	and 	the 	charges 	discussed here 	are 	REMANDED 	to 	the
general 	counsel 	for 	issuance 	of 	complaint 	and 	initiation of
further 	proceedings.
Member 	Craib 	joined 	in 	this 	Decision.
Member 	Cordoba's 	concurrence begins 	at 	page 	9.
Chairperson 	Hesse's 	and Member 	Porter's 	dissent begins 	at
page 11.
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Cordoba, 	Member, 	concurring: 	I concur 	in the majority's
decision 	and reasoning. 	However, 	I 	feel 	that 	the dissent
raises 	certain points 	that 	deserve 	to be 	addressed.
PERB 	Regulations 	32620(b)(5) 	and 	32630 	require 	the 	Board
agent 	to dismiss a charge 	"if 	. 	. 	. 	the charge or the evidence
is 	insufficient 	to establish a prima 	facie 	case. 	. . . " 	In 	the
instant 	case, 	though the 	charge 	is 	not 	a model 	of absolute
clarity, 	when viewed 	in conjunction with 	the 	evidence 	appended
its 	essence 	is unmistakable.
First, 	it 	is 	clear 	that 	the 	instant 	charge 	is being made on
behalf 	of 	the 	part-time 	visiting 	lecturers 	represented by
Charging 	Party, 	for 	these 	are 	the 	only bargaining unit 	members
mentioned 	in 	the 	amended 	charge 	whose 	terms 	and 	conditions 	of
employment 	were 	directly 	impacted by 	the 	alleged 	unilateral
change.
Second, 	the 	nature of 	the 	impact 	of 	that 	alleged 	change 	is
perfectly clear 	from Respondent's 	June 	24, 	1986, 	memo appended
to the 	charge, 	which 	states 	in pertinent part, 	" . . . 	we will
not be 	able 	to 	employ 	any part-time 	visiting 	lecturers 	during
the 	coming year." 	The only possible 	meaning of 	this 	phrase 	is
that 	the 	part-time 	visiting 	lecturers 	currently 	employed by
Respondent 	were being 	disemployed. 	What 	greater 	impact 	could 	a
change have 	on 	terms 	and 	conditions 	of 	employment 	than 	to
eliminate 	them?
Viewed 	in light 	of 	these 	facts, 	the 	Charging Party's
facially 	diverse 	statements 	that 	the 	employer 	had 	a policy 	for
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years 	of 	"employ(ing) 	part-time 	lecturers 	already employed by
the 	University 	for 	additional 	service 	on campus" 	or 	of
"offer(ing) 	employment 	opportunities 	to people 	already present
on campus" 	emerge 	as 	a simple 	alternative 	allegation that
Respondent's 	decision 	to hire 	three 	full-time 	visiting
lecturers 	from 	outside 	existing 	staff 	unilaterally 	changed 	a
prior 	policy of 	reappointing 	existing personnel. 	Under 	similar
circumstances, 	this 	Board has 	found 	that 	a change 	in past
practice 	affecting 	lecturers' 	"reasonable 	expectation of
reemployment" 	amounted 	to a prohibited 	unilateral 	change 	in
policy. 	Regents of 	the UC 	(1983), 	PERB Decision No. 	359-H
(vacated on other grounds).
Clearly, 	neither 	the 	Board 	agent 	nor 	the 	Board 	should be
required 	to 	rely upon 	inference 	to 	give 	sufficiency 	to a 	charge
when 	such 	inference 	requires 	making 	a 	choice between
alternative 	interpretations. 	This 	charge 	is 	sufficient 	solely
because 	the 	allegations 	presented 	are 	susceptible 	to 	only 	one
reasonable 	interpretation.
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Hesse, 	Chairperson, 	dissenting: 	I 	respectfully disagree
with 	the 	majority's 	characterization 	of 	Charging 	Party's
allegations 	and 	the 	conclusion 	that 	sufficient 	facts 	have been
asserted by 	Charging 	Party 	to 	support 	a 	prima 	facie 	case.
To 	establish 	a prima 	facie 	case 	of 	an 	alleged 	unlawful
unilateral 	change, 	sufficient 	facts 	must be 	stated 	to
demonstrate 	that 	the 	employer 	either 	unilaterally 	changed 	a
matter 	within 	the 	scope of 	representation, 	or 	that 	the 	employer
changed 	an 	established policy or practice, 	which had 	a
generalized 	effect 	or 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment 	of bargaining 	unit 	members. 	(San
Mateo 	County 	Community 	College 	District 	(1979) 	PERB 	Decision
No. 	94; 	Grant Joint Union High School 	District 	(1982) 	PERB
Decision No. 	196; 	Rio Hondo Community College District 	(1982)
PERB Decision No. 	279.)
In pertinent part, 	the 	following was 	alleged by Charging
Party:
The policy of 	the employer had, 	for years,
been 	to 	employ part-time 	lecturers 	already
employed by 	the 	University 	for 	additional
service on campus 	.... 	On June 	24, 	1986,
the 	university 	announced 	that 	there 	would be
six 	full-time 	visiting 	lecturers 	as 	a 	result
of 	"a number of 	changes" which had been
"necessitated by events." 	Of 	the 	six
individuals, 	three were 	individuals who had
not 	previously been 	employed 	by 	the
university. 	Prior to that 	time, 	the policy
of 	the 	university had been 	to 	offer
employment 	opportunities 	to people 	already
present 	on 	campus 	and 	represented by
charging party 	. 	. 	. 	These changes constitute
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•

unilateral 	changes 	without 	notice 	to 	the
charging 	party 	and 	without 	giving 	the
charging 	party 	an 	opportunity 	to bargain
about 	the 	change 	in policy or 	the 	impact
upon 	the bargaining 	unit 	. . . . 	(Emphasis
added.)
The majority's 	recognition 	that 	the 	charge 	is 	"lacking 	in
specifics" 	and 	"clarity" 	seriously 	understates 	Charging 	Party's
failings. ,1 Patent 	ambiguities 	and 	defects 	appear 	on 	the 	face
of 	the charge.
Was 	the 	alleged 	unilateral 	change 	a 	change 	in 	the 	time base
(full-time 	versus part-time) 	or, 	in the 	status of 	the positions
filled 	(visiting 	lecturers'2 versus 	lecturers 	already present
on 	campus) 	or, 	in 	the designation of 	the positions 	(represented
1PERB 	Regulation 	32615 	requires 	that 	a 	Charging 	Party
provide 	"a 	clear 	and 	concise 	statement 	of 	the 	facts 	and 	conduct
alleged 	to 	constitute 	an 	unfair 	practice." 	(Emphasis 	added.)
I 	do not 	share 	the 	majority's 	willingness 	to 	"minimize" 	this
mandate by 	ignoring 	the 	lack 	of 	"specifics" 	and 	"clarity" 	in
the 	charge. 	The majority's paraphrased, 	general 	reference 	to
"lecturers" 	and 	"bargaining unit members" 	rather 	than part-time
lecturers, 	as 	stated 	in the charge, 	is but one example. 	The
majority's 	collection 	of 	coadunated 	facts 	requires 	viewing 	the
instant 	charge 	through a kaleidoscope 	which, 	by assembling
loose bits 	of 	information 	reflected 	through mirrors, 	somehow
transforms 	Charging 	Party's 	fragmentary 	factual 	images 	into 	an
"easily 	inferred" 	illusory whole.
The 	concurrence 	goes 	even 	further 	in 	its 	factual 	melange by
relying 	exclusively 	upon 	"appended" 	material 	to 	intuit 	its
"disemployment" 	theory, 	rather 	than 	focusing upon 	the 	charge
itself. 	We 	simply believe 	that 	the 	contents 	of 	the 	charge, 	not
the 	"inference" 	of 	Board members, 	should determine whether 	a
complaint 	shall 	issue.
2 The 	ambiguity of 	the 	charge 	is 	further 	compounded by
Charging 	Party's 	statement 	that 	"certain 	visiting 	lecturers"
were 	represented 	by 	the 	Charging 	Party 	and 	were 	employed 	during
the 	1985-86 	school 	year.
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by 	Charging 	Party versus 	non-represented) 	or, 	finally, 	a 	change
in 	the 	number 	of positions 	(six positions 	versus 	any other
number)?
It 	is 	unclear 	whether 	the 	"people 	already present 	on
campus" 	refers 	to part-time lecturers 	only, 	or whether
"additional 	service" 	refers 	to the 	six 	full-time positions 	in
the 	Rhetoric 	Department 	exclusively. 	It 	is 	also unclear
whether 	Charging 	Party 	is 	contending 	that 	part-time 	lecturers
were, 	as 	a matter of University policy, 	always 	employed or
merely 	offered 	employment 	in 	these 	"additional 	services" 	by 	the
University 	in 	the past.
If 	the 	charge 	challenges 	the 	University's 	decision 	to hire
six 	full-time 	rather 	than part-time 	visiting lecturers, 	such a
challenge 	cannot be 	sustained 	as 	it 	is 	an 	infringement 	upon 	a
fundamental 	management prerogative 	that, 	absent 	a contractual
or 	statutory restriction, 	does 	not 	in 	itself 	create a duty to
bargain. 	(Healdsburg Union High School 	District 	(1984) 	PERB
Decision No. 	375; 	see also St. 	Louis 	Telephone Employees Credit
Union 	(1984) 	273 NLRB No. 	90 	[118 LRRM 1079].)3 If, 	on the
33 The	The 	majority's 	reliance 	upon Healdsburg 	Union High
School 	District 	(1984) 	PERB Decision No. 	375 	for 	its 	"incumbent
rights" 	theory 	is 	misplaced. 	The Healdsburg Board held 	that
"the 	reassignment 	of 	incumbent 	employees 	from 	existing
classifications 	to 	different 	or 	newly 	created 	classifications
is 	negotiable." 	(Pg. 	47-48; 	citing Alum Rock Union Elementary
School 	District 	(1983) 	PERB Decision No. 	322.) 	The charge
alleges 	a 	change 	in hiring policy not 	reassignments. 	It 	is
unknown how 	the 	majority 	easily 	inferred 	who 	the 	incumbents
were or what contract rights, 	if any, 	were affected.
The 	concurrence 	is 	equally errant 	in defining 	the 	instant
13

other hand, 	it 	is 	alleged 	that 	the 	University's 	decision not 	to
first 	offer 	full-time 	employment 	opportunities 	in 	the 	Rhetoric
Department 	to part-time 	lecturers 	on 	campus 	constitutes 	a
"change 	in policy," 	such a policy must be 	clearly 	stated 	and
the 	change 	must be 	alleged 	to have 	an 	"impact 	upon 	the 	terms
and 	conditions 	of 	employment 	of bargaining unit 	employees."
The 	instant 	charge 	fails 	on both 	counts.
matter 	as 	a 	"reemployment" 	policy 	similar 	to Regents 	of 	the
University of 	California 	(1983) 	PERB 	Decision No. 	359-H
(vacated 	on other grounds). 	In that case, 	the University
unilaterally 	changed 	from 	eight 	to 	four 	years 	the 	period 	of
yearly contract 	renewals 	(i.e. 	reemployment) 	for 	all
lecturers. 	The 	instant 	charge 	only refers 	to 	"additional
service" 	and 	"employment 	opportunities 	to people 	already
present on campus," 	not 	reemployment. 	At most, 	this may 	imply
that 	part-time 	lecturers 	should have 	"first 	choice" 	in new
positions. 	On 	the 	other hand, 	disemployment 	(ergo,
out-of-work) 	and 	reemployment 	implies 	that 	termination of
part-time 	lecturers 	would 	occur because 	of 	the 	University's
decision 	to hire 	six 	full-time 	visiting 	lecturers. 	Such an
"alternative 	interpretation" 	goes 	well beyond 	the 	charge 	and
raises 	even more 	uncertainty 	as 	to what 	the 	complaint 	will
contain.
The 	regional 	attorney 	specifically 	requested 	in his 	letter
dated March 	10, 	1986, 	that Charging Party provide 	facts
essential 	to 	establish a prima 	facie 	case 	as 	follows:
Presumably, 	the allegation 	is 	that 	the
Respondent has 	changed a practice 	of
reemploying part-time 	instructors. 	However,
the 	amended 	charge 	fails 	to provide 	facts
from which 	it 	may be 	determined 	that 	a
policy 	existed 	regarding 	the 	reemployment 	of
part-time 	instructors 	and 	what 	the
limitations 	of 	such a policy were.
Moreover, 	in light of 	the Respondent's
information 	that 	the 	university has
consistently hired 	in 	the 	Rhetoric
Department 	according 	to a 	priority 	system
14

established 	in 1982, 	it 	is not clear what
the change, 	if any, 	has been. 	As written,
the 	charge 	does 	not 	explain which
departments 	are 	alleged 	to be 	affected by
the change. 	Further, 	in light of 	the 	fact
that 	Charging 	Party 	represents 	both
part-time and full-time 	lecturers, 	it 	is not
clear 	what 	the 	impact 	is 	of 	any change upon
the 	employees 	which Charging 	Party
represents.
Charging 	Party had 	ample 	opportunity 	to 	amend 	its 	charge
but 	chose 	not 	to do 	so. 	The majority 	apparently presumes
the 	existence 	of 	such 	facts by broadly 	characterizing 	charging
party's 	allegation 	as 	"whether 	or 	not 	respondent 	unilaterally
changed 	[its] 	policy." 	It 	does 	little 	to merely recite 	that 	a
change 	in 	the 	University's 	policy 	to offer 	employment
opportunities 	occurred without 	factually 	identifying 	the 	policy
and providing 	facts 	that 	such 	a 	change 	was 	either 	itself 	a
matter 	within 	scope 	or 	that 	the 	change had 	an 	impact 	upon 	the
terms 	and conditions 	of bargaining unit members. 	I 	am
perplexed 	as 	to how 	the 	regional 	attorney will be 	able 	to
clearly 	set 	forth 	these 	essential 	factual 	requirements 	in 	the
complaint 	under 	the 	majority's 	analysis.5 At 	a minimum,
4 It 	should 	be 	noted 	that 	Charging 	Party 	is 	represented 	by
one 	of 	the 	most 	experienced 	and 	sophisticated 	labor 	law 	firms,
and 	is 	no doubt 	capable 	of meeting 	this 	requirement. 	(Van
Bourg v. 	NLRB 	(1985) 	756 F.2d 692 	[118 LRRM 3238]; 	Van Bourg v.
NLRB 	(1985) 	762 	F.2d 831 	[119 	LRRM 	2989], 	vacated on other
grounds; 	Cupertino Union Elementary School 	District 	(1986) 	PERB
Decision No. 	572.)
5 The 	concurring 	opinion 	now 	asserts 	that 	Charging 	Party's
allegations 	are 	susceptible 	to only a 	single 	reasonable
interpretation 	as 	to 	the 	existing policy 	allegedly 	unilaterally
changed by 	the 	University. 	The 	concurring 	opinion 	identifies
15
4A

Charging 	Party 	should 	have 	stated 	facts 	which 	indicate 	that
part-time 	lecturers had a contractual, 	statutory, 	or, 	by past
practice, 	an exclusive entitlement 	to 	"additional 	services" 	or
that 	employment 	opportunities 	should have been 	first 	offered 	to
these 	employees. 	Absent 	such 	a 	fundamental 	threshold 	factual
allegation, 	I 	cannot 	conclude 	that 	the 	University's 	alleged
departure 	from 	such 	a 	policy 	constituted 	a 	potential 	violation
of 	the Act 	affecting 	a matter 	within 	scope.
this 	singular 	policy 	as 	one 	of 	"reappointing 	existing
personnel." 	We 	cannot 	find 	such a policy alleged 	in 	the
charges. 	We 	note 	that 	neither 	the 	majority opinion nor 	the
Charging 	Party, 	in 	its brief on appeal 	to this 	Board, 	assert
that 	there 	was 	a policy 	of 	reappointing 	existing personnel.
Thus, 	I 	cannot 	conclude 	that sufficient 	facts 	exist 	to
demonstrate 	the 	University's 	decision 	affected 	anything 	more
than 	a mere 	"expectancy" 	of part-time 	lecturers 	within 	the
bargaining 	unit 	rather 	than 	affecting 	a matter 	within 	the 	scope
of 	representation.
For 	these reasons, 	I would dismiss 	the 	charge, 	with leave
to 	amend, 	thereby providing 	Charging 	Party 	the 	opportunity 	to
cure, 	if 	it can, 	the above-described deficiencies.
Member 	Porter 	joined 	in 	this 	Dissent.
16