Regents of University of California (University Professional and Technical Employees) (PERB 1182H)

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STATE OF CALIFORNIA
DECISION OF THE ;
PUBLIC EMPLOYMENT RELATIONS BOARD

UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA
LOCAL 9119,

Charging Party, Case No. SF-CE-428-H

Vv. PERB Decision No. 1182-H

THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,

January 31, 1997

ee ee ee ee ee

Respondent.

Appearances; Eggleston, Siegel & LeWitter by M. Jane Lawhon,
Attorney, for University Professional and Technical Employees,
CWA Local 9119; Edward M. Opton, Jr., Attorney, for the Regents
of the University of California.
Before Caffrey, Chairman; Johnson and Dyer, Members.
DECISION

CAFFREY, Chairman: This case is before the Public
Employment Relations Board (PERB or Board) on exceptions filed by
the University Professional and Technical Employees, CWA
Local 9119 (UPTE) to an administrative law judge's (ALJ) proposed .
decision (attached). The ALJ dismissed UPTE's complaint alleging
that the Regents of the University of California (University)

violated section 3571(a), (b) and (c) of the Higher Education

Employer-Employee Relations Act (HEERA)* by unilaterally changing

'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:

It shall be unlawful for the higher education
employer to do any of the following:

employees' 	work schedules, 	reassigning employees 	from the
graveyard or owl 	shift 	to 	the 	day 	shift, 	and abolishing 	the
accelerator operator supervisor classification and transferring
incumbent 	employees 	into 	the principal 	accelerator 	operator
classification.
•
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including the 	original 	and amended unfair practice 	charges, 	the
ALJ's proposed decision and the 	filings 	of 	the parties.2 The
Board affirms 	the ALJ's 	decision in part, 	and reverses 	it 	in
part, 	in accordance with the 	following discussion.
DISCUSSION
The 	Board 	finds 	the ALJ's 	findings 	of 	fact 	to be 	free 	of
prejudicial 	error and hereby adopts 	them as 	the 	findings 	of 	the
Board 	itself.
The 	Board 	finds 	the ALJ's 	conclusions 	of 	law concerning 	the
change 	in the work schedules 	of 	employees 	working 	on the
Cyclotron at 	the 	Lawrence 	Berkeley National 	Laboratory
(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.
2UPTE's 	request 	to present 	oral 	argument 	to 	the Board was
denied on January 17, 	1997.
22

(Laboratory) 	to be 	free 	of prejudicial 	error and hereby adopts
them as 	the 	decision of 	the Board 	itself. 	UPTE 	offers 	no
exceptions 	to 	the ALJ's 	dismissal 	of 	its 	charge 	relating 	to 	this
conduct.
The 	Board 	finds 	the ALJ's 	conclusions 	of 	law concerning 	the
abolition 	of 	the 	accelerator 	operator 	supervisor 	classification
and 	transfer 	of 	incumbent 	employees 	into 	the principal
accelerator 	operator 	classification 	to be 	free 	of 	prejudicial
error and hereby adopts 	them as 	the 	decision of 	the 	Board 	itself.
UPTE 	offers 	no exceptions 	to 	the ALJ's 	dismissal 	of 	its 	charge
relating 	to 	this 	conduct.
UPTE 	excepts 	only to 	the ALJ's 	dismissal 	of 	its 	allegation
that 	the 	University violated 	the 	HEERA by unilaterally 	changing
the work 	schedules 	and 	shifts 	of 	employees 	working 	on 	the
Laboratory Advanced Light 	Source 	(ALS) 	machine. 	The ALJ found
this 	allegation 	to be untimely.
HEERA section 	3563.2 	precludes 	PERB 	from 	issuing 	a 	complaint
based 	on 	conduct 	that 	occurred more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.3 Since 	the 	six-month 	statute 	of
limitations 	is 	jurisdictional, 	the parties 	cannot waive 	it and
3HEERA section 3563.2 	provides, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	issue a 	complaint 	in respect 	of 	any
charge 	based upon an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the charge.
33

need not 	affirmatively plead 	the 	defense. 	(California 	State
University. 	San Diego 	(1989) 	PERB Decision No. 	718-H.) 	The
charging party must 	establish 	timeliness 	as 	part 	of 	its 	prima
facie 	case. 	(Regents of 	the University of 	California 	(1990) 	PERB
Decision No. 	826-H.) 	The 	limitations period begins 	to run when
the 	charging party has 	actual 	or 	constructive 	notice 	of 	the
employer's 	clear 	intent 	to 	implement 	a unilateral 	change 	in
policy. 	(Ibid.)
The ALJ concluded that a February 10, 	1995, 	letter from the
University provided UPTE with notice 	of 	the University's 	clear
intent 	to 	change 	the work 	schedules 	and shifts 	of ALS 	employees.
Therefore, 	the ALJ 	found the ALS 	work schedule 	and shift 	change
allegation within UPTE's August 	18, 	1995, 	unfair practice 	charge
untimely.
On appeal, 	UPTE argues that the February 10, 	1995, 	letter
from the University, 	concerning 	the ALS 	employee work schedule
and 	shift 	changes, 	did not 	indicate 	the University's 	clear 	intent
to 	implement 	the 	changes. 	UPTE argues 	that 	the 	letter
specifically makes 	the University's 	implementation 	contingent 	on
UPTE's agreement with the 	changes. 	Rather than agreeing, 	UPTE
responded with a February 14, 	1995, 	request 	to bargain over the
changes. 	UPTE asserts 	that 	the earliest 	date 	it 	could have known
of 	the 	clear 	intent 	to 	implement 	the work schedule 	and shift
changes was February 21, 	1995, 	the date the University
unilaterally 	implemented 	them.
4

The 	University 	responds 	by 	supporting 	the ALJ's 	dismissal 	of
the allegations as untimely. 	Furthermore, 	in the event 	the Board
finds 	the allegations 	timely, 	the University asserts 	that 	its
decision to eliminate 	the ALS 	owl 	shift 	is not negotiable. 	The
University argues 	that 	its 	decision 	to eliminate night 	operations
is 	a matter of managerial 	prerogative 	that 	lies 	outside 	the 	scope
of 	representation. 	(Anaheim Union High School 	District 	(1981)
PERB Decision No. 	177.) 	Therefore, 	any decision issued by PERB
on 	the merits 	of UPTE's 	allegations 	should omit 	an order to
return to 	the 	operating hours 	status quo.
HEERA's 	statute 	of 	limitations 	period 	is 	a mandatory
jurisdictional 	bar 	to 	charges 	filed more 	than 	six months 	after
the date 	of 	the 	alleged unfair practice. 	(California 	State
University, 	supra. 	PERB Decision No. 	718-H.) 	Neither the parties
or 	the Board may waive 	timeliness 	and 	the parties 	need not
affirmatively plead the 	defense. 	(Regents 	of 	the University of
California, 	supra. 	PERB Decision No. 	826-H; 	Davis Teachers
Association. 	CTA/NEA 	(Heffner) 	(1995) 	PERB Order No. 	Ad-270.)
For an alleged unilateral 	change violation, 	the 	statute 	of
limitations 	commences 	on 	the 	date 	the 	charging party has 	actual
or 	constructive notice of 	the 	employer's 	clear 	intent 	to
implement 	the 	change. 	(Regents 	of 	the University of 	California.
supra. 	PERB Decision No. 	826-H.) 	Therefore, 	the key
consideration 	in determining 	timeliness 	of 	the 	unilateral 	change
allegations here 	is 	the 	date UPTE 	received notice 	of 	the
55

University's 	clear 	intent 	to take 	the action, 	not 	the date 	the
University decided 	to 	take 	the 	action.
The University's February 10, 	1995, 	letter to UPTE
concerning the ALS work schedule and shift 	changes 	concludes, 	"If
I 	have not 	heard from you by the 	close 	of business 	on
February 24, 	1995, 	I will assume you agree and we will proceed
accordingly." 	This 	statement 	does 	not 	convey 	the University's
clear 	intent 	to make 	the 	changes 	described 	irrespective 	of 	UPTE's
response. 	UPTE 	could 	reasonably 	infer 	from this 	statement 	that
if 	the University were to hear from UPTE by February 24, 	1995,
some other course of action would ensue. 	On February 14, 	1995,
UPTE 	responded 	to 	the University's 	letter with a 	request 	to meet
and confer. 	Interestingly, 	the University 	implemented the ALS
work schedule and shift 	changes 	on February 21, 	1995, 	a date not
referenced in its 	February 10 	letter to UPTE. 	Clearly, 	UPTE
received no notice 	of 	the University's 	intent 	to make 	the 	changes
effective February 21, 	1995.
Based on the wording of 	the University's 	February 10, 	1995,
letter, 	and the University's 	subsequent unannounced decision 	to
implement 	the action on February 21, 	1995, 	the Board concludes
that 	UPTE did not 	have notice 	of 	the University's 	clear 	intent 	to
proceed with 	the ALS 	work 	schedule 	and 	shift 	changes 	until 	the
University implemented them on February 21, 	1995. 	Therefore, 	the
HEERA statute 	of 	limitations 	did not 	begin 	to 	run until
6
6

February 21, 	1995, 	and the ALS 	schedule and shift 	change
allegation in UPTE's August 	18, 	1995, 	unfair practice charge 	is
timely.
ORDER
The 	Board hereby REMANDS 	Case No. 	SF-CE-428-H to 	the 	Chief
ALJ 	for 	further proceedings 	in accordance with the 	foregoing
discussion.4
The 	allegations 	concerning work 	schedule 	changes 	for
Cyclotron employees, 	and the abolition of 	the accelerator
operator 	supervisor 	classification and 	transfer 	of 	incumbent
employees 	into 	the principal 	accelerator 	operator 	classification,
are 	hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
4Since 	this 	case 	is being remanded to the Chief ALJ, 	the
Board does 	not 	address 	the University's 	argument 	that 	its
decision to eliminate ALS night 	operations 	is a matter of
management 	prerogative 	outside 	the 	scope 	of 	representation.
77

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL AND
TECHNICAL EMPLOYEES, 	CWA LOCAL
9119,
Charging Parties,
v.
THE 	REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
)
)
) 	Unfair Practice
Case No. 	SF-CE-428-H
PROPOSED DECISION
(9/23/96)
)
)
)
)
)
)
)
Appearances: 	Eggleston, 	Siegel 	& LeWitter by M. 	Jane Lawhon,
Esq., 	for University Professional 	and Technical Employees, 	CWA
Local 	9119; 	Office of 	the General 	Counsel 	of 	the University of
California by Edward M. 	Opton, 	Jr., 	Esq., 	for Regents of the
University of 	California.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union 	representing 	employees 	at 	a 	research 	laboratory
contends 	here 	that 	the 	university 	employer 	changed 	certain
employee work shifts, 	hours and job classifications. 	The union,
which was newly certified at 	the time, 	argues 	that 	the 	changes
were made without prior negotiations. 	Procedurally, 	the
university asserts 	that 	the 	charge 	should be 	dismissed as
untimely filed. 	On the merits, 	the university acknowledges 	that
some work 	shifts were 	changed but 	contends 	that 	at 	least 	in part
the 	schedule 	changes were 	consistent with past practice.
This action was commenced on August 	18, 	1995, 	when the
University Professional 	and Technical 	Employees, 	CWA Local 	9119
(UPTE or Union), 	filed an unfair practice charge against 	the
Regents of the University of California 	(University). 	There
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.

followed a 	first 	amended charge on November 1, 	1995. 	The 	charges
alleged 	that 	the University made 	certain 	changes 	in 	employee 	work
hours 	at 	the 	Lawrence 	Berkeley National 	Laboratory. 	The 	Office
of 	the General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board"
(PERB or Board) 	followed on January 10, 	1996, 	with a complaint
against 	the 	University.
The Union on February 27, 	1996, 	filed a second amended
charge which 	for the 	first 	time 	set 	out 	these 	additional
allegations:
1. 	that during or about 	the month of April 	1995, 	the
University unilaterally 	changed 	the 	work 	schedule 	for unit
members 	at 	the 	88-inch Cyclotron from seven to 	21 	days; 	and
2. 	that 	"sometime after UPTE's 	certification" 	the University
removed all 	incumbents 	from the position of 	accelerator 	operator
supervisor 	into 	the position of 	principal 	accelerator operator
and 	then 	abolished 	the position 	of 	accelerator 	operator
supervisor.
The 	second amended charge was 	followed on April 	12, 	1996,
by a University motion to dismiss 	for Untimeliness. 	The Union
responded to 	the motion to dismiss 	on April 	23 	and made 	a motion
to 	amend 	the 	complaint. 	The motion to dismiss was 	denied by
the 	undersigned on 	the ground that 	through 	their pleadings 	the
parties 	had 	set 	out 	a 	factual 	dispute 	about 	when 	the Union knew
of 	the 	changes. 	Accordingly, 	a 	first 	amended complaint 	issued by
the undersigned on April 	25, 	1996.
N	
2

The 	first 	amended 	complaint 	sets 	out 	three 	causes 	of 	action.
The 	complaint 	alleges 	that 	on or about 	February 	21, 	1995, 	the
University 	transferred 	certain 	employees 	from 	the 	standard,
five-day 	40-hour 	week 	to 	a 	21-day 	rotating 	work 	schedule. 	Under
the 	21-day 	schedule, 	the 	affected 	employees 	are 	required 	to 	work
seven 	days 	on, 	followed by 	three 	days 	off, 	followed by 	seven 	days
on, 	followed by 	four 	days 	off. 	The 	complaint 	next 	alleges 	that
on 	or 	about 	February 	21, 	1995, 	the 	University 	eliminated 	the
graveyard 	or 	"owl" 	shift 	and 	transferred 	affected 	employees 	to
the 	day 	shift 	causing 	a 	reduction 	in pay. 	Finally, 	the 	complaint
alleges 	that 	the 	University 	abolished 	the 	position 	of 	accelerator
operator 	supervisor 	and 	transferred 	employees 	into 	the 	new
position 	of 	principal 	accelerator 	operator 	at 	a 	reduction 	in 	pay.
By these 	acts, 	the 	complaint 	alleges, 	the 	University violated
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA) 	section
3571 (a) , 	(b) and (c).1
HEERA 	is 	found 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	Section 	3571 	provides 	as 	follows:
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.
33

The 	University 	filed 	an 	answer 	to 	the 	second 	amended unfair
practice 	charge 	but 	never 	filed an answer 	to 	the 	complaint 	or
the 	first 	amended complaint. 	A hearing 	into these matters was
conducted in San Francisco on June 20 	and 21, 	1996. 	The
University elected not 	to 	file 	a brief. 	With the 	filing of
the Union's brief, 	the case was 	submitted for decision on
September 12, 	1996.
FINDINGS 	OF 	FACT
The 	University 	is 	a higher education employer under
HEERA. 	Since December 1, 	1994, 	UPTE has been the exclusive
representative of University unit no. 	9, 	an appropriate,
system-wide 	unit 	of 	3,800 	University technical 	employees.
The 	events 	at 	issue 	took place 	at 	the 	Lawrence 	Berkeley
National 	Laboratory 	(Laboratory), 	a research laboratory on the
Berkeley campus 	of 	the University of 	California. 	The 	employees
affected by 	the 	alleged changes 	work 	on 	two giant 	machines 	at 	the
Laboratory, 	the Advanced Light 	Source 	(ALS) 	and the 	88-inch
Cyclotron 	(Cyclotron).
The ALS was 	described as 	a machine 	approximately the 	size 	of
two 	football 	fields 	that 	is 	a 	combination of 	several 	thousand
smaller machines, 	all of which have to work simultaneously. 	The
ALS 	accelerates 	electrons 	to 	a very high energy and then 	injects
them 	into 	a 	storage 	ring where 	they circulate 	for periods 	of
time. 	As 	they circulate, 	the electrons give off 	energy as 	light
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
44

in 	the 	x-ray and vacuum ultraviolet 	region of 	the 	spectrum,
invisible 	to 	the human eye. 	The 	light 	is used by experimenters.
The machine 	can be 	dangerous 	and employees working with 	it 	are
required to 	follow significant 	safety rules. 	The ALS 	is 	the 	only
machine 	of 	its 	type 	in the United States 	and is used by
experimenters 	from 	throughout 	the 	country and world.
The 	Cyclotron makes particle 	accelerator beams 	for use 	in
research by scientists and physicists. 	Like the ALS, 	the
Cyclotron 	is 	composed of many 	smaller machines which must 	work
simultaneously. 	The 	Cyclotron 	is 	smaller 	than the ALS but 	still
occupies 	a building that 	was 	likened to 	the 	size 	of 	a 	football
field. 	The 	Cyclotron 	is 	used by experimenters 	from locations
away 	from Berkeley.
During or about 	the month of 	February 1995, 	the University
changed 	the 	pay status 	of 	certain Laboratory employees 	from
salaried 	to 	hourly. 	Among 	those 	affected were 	accelerator
operators 	and electronic 	engineering technologists, 	job classes
within the 	bargaining unit 	represented by UPTE. 	The 	apparent
reason 	for 	the 	change was 	a 	determination by the 	University 	that
the 	affected employees were 	not 	qualified as 	exempt 	under 	the
federal 	Fair Labor Standards Act. 	The 	change 	in pay status 	meant
that 	the 	affected 	employees 	would become 	entitled 	to 	premium pay
when working overtime, 	something 	for which they were 	not 	eligible
as 	salaried employees.2
2The Union got 	notice of 	the 	change. 	The 	record does not
disclose 	whether 	the 	Union demanded 	to bargain 	about 	the 	change
or otherwise protested. 	In any event, 	the 	change of 	salary
55

Chancre 	in Hours 	at 	the ALS
Prior to February 21, 	1995, 	the work schedule for
accelerator 	operators 	working 	the 	day or 	swing 	shifts 	at 	the ALS
was 	a 	five-day work week with two days 	off. 	Employees 	on those
two 	shifts 	rotated back 	and 	forth between day and 	swing 	on 	a
fixed schedule. 	Employees on the 	"owl" 	shift worked four
ten-hour days which did not 	rotate. 	The work 	schedule was Monday
through 	Friday 	and 	employees 	did not 	regularly work 	on weekends.
Before February 21, 	1995, 	the 	standard work week for electronic
engineering technologists at 	the ALS was 	five days, 	Monday
through Friday, 	weekends off.
On February 21, 	1995, 	the Laboratory implemented a 21-day
rotating 	shift 	for ALS 	accelerator 	operators 	and 	electronic
engineering technologists. 	Under the 	21-day schedule, 	employees
work 	seven consecutive days, 	followed by three days off, 	followed
by seven 	consecutive 	days 	of work, 	followed by four days 	off.
The 	21-day cycle 	then repeats.
Also on February 21, 	1995, 	the Laboratory eliminated the
owl 	shift at 	the ALS. 	Suzanne Daly, 	an accelerator operator
who was working the 	owl 	shift, 	testified that 	her 	supervisor
told her 	that 	the 	shift 	was 	being eliminated because 	some 	of 	the
experimenters using the ALS 	did not 	like 	to work at 	night. 	The
owl 	shift 	ultimately was 	restored at 	the ALS 	on September 	17,
1995.
status 	is not 	an issue 	in the present 	case.
6

Employees 	receive premium pay when working both the 	owl
and swing shifts. 	The premium for the owl 	shift 	is 	a bonus 	of
15 percent 	of 	the 	employee's base pay. 	The premium for the
swing 	shift 	is 	7.5 	percent. 	Employees 	transferred off 	the 	owl
shift 	lost 	the 	premium pay 	for 	the 	period 	that 	the 	shift 	was
eliminated.
Change 	in Hours 	at 	the 	Cyclotron
As of December 1, 	1994, 	the date UPTE was 	certified as
exclusive representative, 	the work 	schedule 	at 	the 	88-inch
Cyclotron was 	eight 	hours 	a day 	for 	five 	days 	per week with two
days off. 	On or about April 	1, 	1995, 	every full-time accelerator
operator 	at 	the 	Cyclotron was 	placed on 	the 	21-day 	schedule 	of
seven 	days 	on 	duty 	followed by 	three 	days 	off 	followed by 	seven
days 	on 	followed by four days 	off. 	Only one operator was 	not
placed on 	the 	21-day schedule 	and 	she 	was 	a part-time 	employee.
Unlike 	the ALS, 	the 	Cyclotron has 	a history of 	employees
working 	the 	21-day schedule. 	The 	operation 	schedule 	for
the 	Cyclotron 	is 	determined by a program committee 	that
reviews 	researcher 	applications 	and decides 	which 	experiments
to conduct. 	The operation schedule 	then dictates 	the work
schedule. 	Historically, 	a 21-day schedule has been worked by
some 	or all 	operators whenever the 	Cyclotron is 	operating at 	or
near 	full 	capacity.
Another 	difference 	between 	the 	work 	schedules 	at 	the
Cyclotron and the ALS 	is 	that 	the 	Cyclotron has 	a history of 	some
employees 	remaining 	on a 	traditional 	seven-day 	schedule 	while
7

others worked the 	21-day schedule. 	The 	record contains 	the work
schedules 	of 	Cyclotron employees 	from June 	of 	1991 	through
February of 	1996. 	The evidence 	shows 	that 	from June 	through
September of 	1993, 	all operators 	at 	the Cyclotron worked the
21-day schedule of seven on, 	three off, 	seven on, 	four off.
From October of 	1993 	through August 	of 	1994, 	two operators worked
the 	21-day 	schedule while 	four worked the 	traditional 	seven-day
schedule 	of 	five work days 	followed by two days 	off. 	From
September of 	1994 until 	the change 	in April of 	1995, 	all
operators worked the 	seven-day schedule. 	Since April 	of 	1995,
employees 	have 	worked 	the 	21-day 	schedule 	except 	during 	shutdown
periods 	when 	they went 	back 	to 	a 	seven-day schedule.
Effects 	of 	the 	21-Day Schedule
Employees 	working the 	21-day 	schedule 	do not 	work 	the 	same
number of 	hours 	in a 	three-week period as 	do employees 	on a
traditional 	seven-day schedule. 	During a 	21-day period, 	an
operator working 	a 	traditional 	seven-day schedule 	will 	have
worked 	15 	days 	and had six days 	off 	for a 	total 	of 	120 	hours 	of
work. 	Over the 	same period, 	an operator on the 	21-day schedule
will 	have worked 	14 	days 	and had seven days 	off 	for a 	total 	of
112 	hours of work.
For 	salaried employees, 	a 	switch 	from seven to 	21-day
schedules would have 	no 	impact. 	But 	when 	the 	Laboratory changed
the 	method of 	pay 	for 	accelerator 	operators 	and 	electronic
engineering technologists 	to hourly, 	the 	21-day schedule 	had
salary implications. 	To 	compensate 	for the 	drop 	in pay that
8

would have 	occurred with a 	conversion to 	the 	21-day schedule, 	the
Laboratory 	imposed mandatory overtime 	of 	3 0 	minutes per work
shift 	for employees 	on the 	21-day schedule. 	The 	overtime was
divided 	into two 	15-minute 	increments, 	one prior to the 	start of
the 	shift 	and one 	after the 	completion of 	a 	shift.
With the 	overtime hours, 	the 	total 	hours 	worked by employees
on a 	21-day schedule was 	119. 	Although this remains one 	hour
less 	than an 	employee 	would work on 	a 	traditional 	seven day
schedule, 	the pay compensation was 	higher because 	the 	overtime
was 	compensated at 	the rate 	of 	time 	and a 	half.
Overtime, 	however, 	is not 	considered part of 	an employee's
base pay by the University. 	One 	employee 	testified that 	as 	a
result 	of 	the 	changeover 	to 	the 	21-day schedule 	her base pay was
reduced by $3 00 per month.
Both parties presented a 	considerable 	amount 	of 	evidence
about 	whether the 	assignment 	of 	employees 	to work a 	21-day
schedule would affect 	future 	retirement 	benefits. 	Under the
University 	retirement 	plan benefits 	are 	calculated on 	the 	basis
of 	three 	components 	fixed at 	the 	time of 	retirement: 	service
credit 	(months of covered employment), 	age and highest 	average
plan 	compensation. 	An employee's 	highest 	average 	plan
compensation 	is 	based upon that 	employee's 	highest 	rate 	of pay,
not 	actual 	earnings.
The 	problem 	created by the 	21-day 	schedule 	is 	that 	employees
working 	the 	schedule 	have 	a 	reduced number of 	hours 	in 	certain
reporting periods. 	Since part 	time 	employees 	are 	not 	covered and
9
9

overtime 	hours 	do not 	count 	toward covered compensation,
employees 	on 	the 	21-day schedule 	were 	not 	receiving 	the 	correct
amount of 	service 	credit. 	Lorna Rodriguez, 	a benefits
representative 	for 	the Laboratory, 	described the 	incorrect
reporting as 	a problem of 	system design. 	She 	said employees 	were
coming up 	short 	on 	hours 	reported 	to 	the 	retirement 	system.
She 	testified that 	when the problem was discovered, 	the
Laboratory made 	retroactive 	adjustments 	in 	the 	hours 	reported to
the 	retirement 	system. 	She 	said that 	these 	adjustments were made
for employees 	at 	the ALS and the Cyclotron. 	Ms. 	Rodriguez
testified 	that 	the 	reporting mechanism still 	has 	not 	been
corrected 	so 	individual 	adjustments 	are 	made 	each month 	in 	the
retirement 	service 	credits 	for each affected worker. 	She
testified 	that 	a 	system 	correction 	is 	being 	designed by 	the
University to 	ensure 	that 	correct 	reporting 	is 	made 	automatically
in the 	future.
The 	change 	in hours 	had one 	other potential 	effect 	on
employee 	retirement 	compensation. 	Because 	shift 	differential 	is
counted as 	covered compensation, 	the 	highest 	average plan
compensation possibly could be 	lower 	for 	employees 	who 	lost 	shift
differential. 	There would be no effect, 	however, 	if such an
employee 	continued 	to 	work 	and his 	or 	her 	subsequent 	compensation
rose to 	a 	level 	higher than what 	would have 	been 	covered with 	the
shift 	differential 	included.
10

Change 	in Job Title
At 	the 	time 	UPTE was 	certified as 	exclusive 	representative
in unit 	9, 	there 	existed at 	the Laboratory a job classification
entitled accelerator operator 	supervisor, 	classification
code 	374.3. 	This position was 	in the bargaining unit 	represented
by UPTE. 	During or about 	late 	January or early February of
1995,3 the 	Laboratory eliminated the 	classification of
accelerator 	operator 	supervisor. 	Persons 	occupying 	the 	position
were 	transferred 	to 	the 	position of 	principal 	accelerator
operator, 	classification code 650.2.
The 	incumbent 	employees 	suffered no 	loss 	in pay as 	a 	result
of 	the 	change. 	Regarding a co-worker, 	one witness 	testified that
as 	a result 	of 	the 	change 	"[h]e was demoted and kept 	the 	same 	.
pay." 	Regarding another co-worker, 	the 	same witness 	testified
that 	as 	far as 	she 	knew, 	the 	co-worker's pay was not 	affected by
the 	change 	in 	job 	classification. 	The pay range 	for the 	650.2
position is 	lower than that 	for the 	3 74.3 position.
When UPTE 	Learned of 	Changes
Libby Sayre 	is 	the president 	of UPTE 	and the 	chief
negotiator. 	She 	is 	the person that 	the University notifies 	about
all 	planned 	changes 	in negotiable 	subjects 	that 	would affect
members of unit 	9. 	Ms. 	Sayre 	testified that 	she did not 	receive
notification 	from the University about 	the 	changes 	in hours 	at
either the ALS 	or the 	Cyclotron.
3The 	only evidence 	in 	the 	record about 	when this 	change
occurred 	is 	through the 	affirmance by a witness 	to 	the 	date posed
in a question. 	(See Reporter's Transcript, 	Vol. 	I, 	p. 	no. 	35.)
11

However, 	the University 	introduced a 	letter 	sent 	by the
University to Ms. 	Sayre on February 10, 	1995. 	The letter clearly
provides 	notice 	of 	an 	intent 	to 	change 	the hours 	of 	unit 	members
at 	the ALS.4 In relevant part, 	the letter reads:
Moving 	from the 	current 	5 	day schedule 	of
Monday 	(swing 	shift) 	through Friday 	(swing
shift), 	we plan to operate the Storage Ring
from Tuesday 	(day shift) 	through Sunday
(swing shift). 	The shift change will allow
approximately 	the 	same 	number of 	operating
hours 	as was previously available, 	but with
greater prime 	operating hours 	of 	access 	to
users 	for 6 days.
The 	impact 	of 	this 	change 	to 	the 	assigned
Technical 	employees 	(Accelerator Operators
and Electronic 	Engineering Technologists) 	is
that 	owl 	shift work will 	be 	temporarily
eliminated. 	The 	employees will work on three
week rotations, 	and during any one week an
employee will work no more 	than 5 	days. 	To
provide 	maximum 	coverage 	and 	allow 	for 	the
needed start-up 	each day, 	each work 	shift
will be 	9 hours. 	When the employees work a
swing shift, 	applicable 	shift 	differential
will 	be 	provided 	in 	accordance 	with policy.
When given a 	copy of 	the 	letter on 	cross-examination,
Ms. 	Sayre 	testified that 	the 	letter refreshed her recollection
and that 	she 	believed 	she 	did receive 	it 	on or about 	February 10.
She 	said 	that 	when 	received the 	letter 	she,
. 	. 	. 	didn't really under -- connect this
with the 	seven/four/seven/three 	idea, 	but 	I
must 	say that 	I 	spent 	several months 	in a
state 	of 	a 	lot 	of 	confusion about 	exactly how
the 	shifts worked and were proposed to work
when 	they 	changed.
Nevertheless, 	it 	is clear that Ms. 	Sayre knew that the
University was 	planning 	to make 	shift 	changes 	affecting employees
4See 	Respondent's 	Exhibit 	D.
12

at the ALS. 	On February 14, 	1995, 	Ms. 	Sayre sent the University
a written demand to bargain.5 Her 	letter 	reads:
It 	has 	come 	to our attention that 	management
at 	the 	Lawrence 	Berkeley Lab proposes 	to
implement 	a 	rotation 	shift 	for 	it[s]
Accelerator Operators 	on 	the ALS 	Operations
Crew. 	This 	is 	clearly an issue within the
scope 	of bargaining.
The University has 	an obligation 	to bargain
over this decision, 	and an obligation to
maintain 	the 	status 	quo pending 	the
satisfaction of 	its 	bargaining obligation.
Please 	send us 	the 	relevant 	information. 	I
would be 	glad 	to make 	some 	arrangement 	with
you to discuss 	this 	further. 	Thank you.
When UPTE 	learned about 	the planned change 	in hours 	at 	the
Cyclotron is much less clear. 	Ms. 	Sayre testified that 	for a
time 	she 	did not 	know of 	the 	existence 	of 	the 	88-inch Cyclotron.
She 	testified that 	she 	"wasn't 	sure 	there 	were 	any accelerators
other than the ALS." 	She 	acknowledged that 	she was 	concerned
that 	if 	the University had made 	a 	change 	in hours 	at 	one place 	in
the Laboratory it might 	have made 	it 	at 	another.
Ms. 	Sayre 	testified that when she 	first 	learned of 	the
existence of 	the 	88-inch Cyclotron, 	whenever that was, 	she
commenced an 	investigation. 	She 	said 	she 	asked the UPTE
organizer assigned to 	the 	Laboratory to 	find out 	if 	the 	hours 	of
employees 	at 	the 	88-inch Cyclotron had been changed. 	Ultimately,
she 	testified, 	what 	she 	learned 	from her organizer was 	that 	the
situation at 	the 	Cyclotron was not 	the 	same 	as 	at 	the ALS. 	She
said she understood 	"that 	it wasn't 	exactly the 	same, 	but
5Charging Party Exhibit No. 	4.
13

something had happened to 	their 	shifts 	and hours." 	Therefore,
she 	said, 	she 	asked the University 	for 	information about 	any
hours 	changes 	at 	the 	Cyclotron.
This 	testimony varies 	from other evidence, 	in particular a
letter of September 19, 	1995, 	which Ms. 	Sayre had sent to Delores
Gaines, 	labor relations manager at 	the Laboratory.6 In that
letter, 	Ms. 	Sayre asserts that 	she 	first 	learned of possible
changes 	in hours 	of 	employees 	at 	the 	88-inch Cyclotron during a
September 18 meeting between herself and Ms. 	Gaines. 	In the
letter, 	Ms. 	Sayre requests 	information about the hours and work
schedules 	of 	employees working at 	the 	Cyclotron.
By letter of November 7, 	1995, 	the University responded to
UPTE's 	September 	19 	letter and provided Ms. 	Sayre with copies of
the work 	schedules 	of 	Cyclotron operators 	from May of 	1991.7
Ms. 	Sayre 	testified that 	it was 	only when she received the
University's 	letter of November 7, 	1995, 	and attached work
schedules 	that 	she 	learned of 	the 	changes 	in hours 	that 	had taken
place 	at 	the 	Cyclotron the preceding April.
LEGAL 	ISSUES
1. 	Was 	the 	charge 	timely filed regarding the:
A. 	Schedule change on February 21, 	1995, 	at 	the ALS?
B. 	Schedule change on April 	1, 	1995, 	at the Cyclotron?
C. 	Abolition 	in 	late 	January or early February of 	1995
of 	the position of 	accelerator operator 	supervisor 	and
6Charging Party Exhibit No. 	5.
7Charging Party Exhibit No. 	3.
14

transfer of 	employees 	into 	the 	new position of 	principal
accelerator 	operator?
2. 	If 	the 	charge was timely, 	did the University make 	a
unilateral 	change 	in 	a negotiable 	subject 	and thereby 	fail 	to
negotiate 	in good 	faith when 	it:
A. 	Assigned unit members 	at 	the ALS 	to work a 	21-day
schedule commencing on or about 	February 21, 	1995;
B. 	Assigned unit 	members 	at 	the 	88-inch Cyclotron to
work a 	21-day schedule 	commencing on or about April 	1, 	1995;
C. 	Eliminated the graveyard or 	"owl" 	shift unit
members 	working at 	the ALS 	and transferred 	affected
employees 	to the 	day shift 	on or about 	February 21, 	1995.
D. 	Abolished the position of 	accelerator operator
supervisor 	and 	transferred 	employees 	into 	the 	new position
of 	principal 	accelerator 	operator?
CONCLUSIONS 	OF LAW
Rules 	on Timeliness
Under HEERA section 3563.2, 	the 	PERB 	is precluded from
issuing a 	complaint 	based upon 	conduct 	that 	occurred more 	than
six months prior 	to 	the 	filing of 	the 	charge.8 In 	interpreting
this 	section, 	the 	PERB has 	held that 	the 	six-month time period is
3In relevant part, 	section 3563.2 	reads as 	follows:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	issue 	a 	complaint 	in respect 	of 	any
charge 	based upon 	an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
15

jurisdictional. 	(California State University 	(San Diego) 	(1989)
PERB Decision No. 	718-H.) 	Timeliness 	cannot be waived either
by the 	parties 	or 	the 	Board 	itself 	and need not 	be plead
affirmatively. 	It 	is 	the 	charging party's burden to show
timeliness 	as part 	of 	its prima 	facie 	case. 	(Regents 	of 	the
University of California 	(1990) 	PERB Decision No. 	826-H.)
The 	limitations period 	"begins 	to 	run on the 	date 	the
charging party has 	actual 	or 	constructive 	notice 	of 	the
respondent's 	clear 	intent 	to 	implement 	a unilateral 	change 	in
policy, 	providing that nothing subsequent 	to that 	date evinces
a wavering of 	that 	intent." 	(Regents 	of 	the University of
California, 	supra, 	PERB Decision No. 	826-H.) 	The critical
date 	in 	calculating 	the 	running of 	the 	limitations 	period 	is
the 	date 	that 	the 	charging party was 	informed of 	the 	intended
unilateral 	change, 	not 	the 	subsequent 	date when the 	change
occurs. 	(See e.g., 	State of 	California 	(Department 	of 	Personnel
Administration) 	(1996) 	PERB Decision No. 	1145-S, 	adopting
dismissal 	of 	regional 	attorney, 	and State of 	California
(Department of Corrections) 	(1994) 	PERB Decision No. 	1056-S.)
The 	six-month period 	is 	to be 	computed by excluding 	the 	day
the 	alleged misconduct 	took place 	and 	including 	the 	last 	day,
unless 	the 	last 	day is a holiday, 	and then it 	also 	is 	excluded.
(Saddleback Valley Unified 	School 	District 	(1985) 	PERB 	Decision
No. 	558.)
16

Charge 	Regarding 	the ALS
The 	University notified 	the Union by 	letter of 	February 	10,
1995, 	that 	it 	intended to change employee hours at 	the ALS. 	The
letter 	states 	that 	the University would 	reassign employees 	from
the 	then 	current 	five-day 	schedule 	to 	"three week 	rotations"
with workshifts 	of 	nine 	hours. 	The 	letter 	further 	informed 	the
Union 	that 	the 	"owl 	shift 	work will 	be 	temporarily eliminated."
Ms. 	Sayre 	acknowledged on cross-examination that 	she 	received the
letter on or about 	February 10, 	1995, 	but did not 	"connect 	this
with the 	seven/four/seven/three 	idea."
Even though Ms. 	Sayre 	did not 	understand the 	full
implication of the hours 	change, 	it 	is clear that 	as of
February 	10 	she 	knew the 	University was 	planning a 	shift 	change
at the ALS. 	Accordingly, 	by letter of February 14, 	Ms. 	Sayre
demanded 	that 	the 	University meet 	and negotiate 	before
implementing a 	shift 	rotation at 	the ALS. 	She 	also 	asked that
the University maintain the 	status 	quo until 	the 	completion of
bargaining. 	But 	the University rejected her demand and, 	on
February 21, 	unilaterally implemented the 	change 	in hours 	and
temporary elimination of 	the 	owl 	shift 	at 	the ALS.
From these 	facts, 	I 	conclude 	that UPTE had actual 	notice on
February 10, 	1995, 	of the University's clear intent 	to implement
a change 	in hours 	for employees at 	the ALS. 	Although Ms. 	Sayre
did not 	understand every nuance 	of 	the planned change, 	the notice
given by the 	University was 	sufficient 	to 	alert 	her 	to 	the 	need
to 	demand to bargain 	and to 	demand that 	the University maintain
17

the 	status 	quo 	in the 	interim. 	There 	is no evidence 	of 	any act
by the University subsequent 	to 	February 10 	to 	indicate 	a
wavering of 	intent. 	Indeed, 	the University implemented the
change only 11 	days 	after it 	notified the Union of 	its plan.
The 	critical 	date 	in calculating 	the 	running of 	the
limitations period is February 10, 	1995, 	the date that UPTE was
informed of 	the 	intended change. 	UPTE 	thus 	had until August 	10
to 	timely file 	a 	charge 	contesting the 	change 	in hours 	and the
temporary abolition of owl 	shift 	deferential 	at 	the ALS. 	The
charge 	regarding the ALS was 	filed on August 	18, 	eight 	days past
the deadline.
UPTE, 	therefore, 	has 	failed to meet 	its burden of 	showing
that 	its 	charge was 	timely 	filed regarding the 	hours 	change 	at
the ALS. 	Since matters of timeliness are jurisdictional, 	it 	is
irrelevant 	that 	the University 	failed 	to 	file 	an 	answer 	setting
out 	a statute of 	limitations defense. 	Accordingly, 	I 	conclude
that 	all 	allegations 	in 	the 	charge 	and complaint 	regarding the
change 	in hours 	and elimination of 	shift 	deferential 	at 	the ALS
were 	untimely 	filed 	and must 	be 	dismissed,
Charge 	Regarding 	the 	Cyclotron
There 	is 	no 	evidence 	that 	the 	University ever notified UPTE
in April 	of 	1995 	that 	it 	was 	assigning accelerator operators
at 	the 	Cyclotron to work a 	21-day schedule. 	The question,
therefore, 	is when UPTE 	learned, 	or reasonably should have
learned, 	of the hours change.
18

Ms. 	Sayre 	testified that 	she 	commenced an 	investigation when
she 	first 	learned of 	the 	existence 	of 	the 	88-inch Cyclotron.
She 	said when 	she 	learned 	from an UPTE 	organizer 	that 	"something
had happened" 	to employee 	shifts and hours 	at 	the 	Cyclotron, 	she
asked 	the 	University 	for 	information 	about 	any hours 	changes.
She put 	the request 	into writing in a September 19, 	1995, 	letter
to Delores Gaines, 	labor relations manager at 	the Laboratory.
By letter of November 7, 	1995, 	the University responded
to UPTE's 	September 	19 	letter and provided Ms. 	Sayre with copies
of 	the work 	schedules 	of 	Cyclotron operators 	from May of 	1991.
Ms. 	Sayre 	testified that 	it was only when she 	received the
University's 	letter of November 7, 	1995, 	and attached work
schedules 	that 	she 	learned of 	the 	changes 	in hours 	that 	had taken
place 	at 	the 	Cyclotron the preceding April. 	The 	second amended
charge, 	which sets 	out 	the allegation regarding the 	Cyclotron,
was 	filed on February 27, 	1996, 	well within six months of UPTE's
receipt 	of 	the November 7 	letter.
There 	is no evidence 	in the 	record to rebut Ms. 	Sayre's
testimony about 	when 	she 	learned of 	the 	hours 	change 	at 	the
Cyclotron. 	The 	Cyclotron 	is 	a 	self-contained research 	facility
somewhat 	apart 	from the 	central 	campus. 	Fewer than ten employees
were 	affected and there was 	no 	evidence 	that 	any of 	them were
UPTE officers or stewards. 	I 	cannot 	find that Ms. 	Sayre acted
unreasonably when, 	upon discovering the possibility of 	a 	change,
she 	asked 	the University to provide 	the 	information 	that 	would
show what 	occurred.
19

Accordingly, 	I 	find that 	the 	allegation regarding the
alleged unilateral 	change 	at 	the 	Cyclotron was 	timely 	filed.
Charge 	Regarding 	the 	Job Titles
As UPTE notes 	in its brief, 	"[i]t 	is undisputed that 	in
late 	January or early February 1995, 	management 	at 	both the ALS
and the 	88 	[inch Cyclotron] 	unilaterally eliminated the 	374.3
accelerator operator 	supervisor position." 	At 	the 	same 	time,
UPTE notes, 	management moved employees 	in that position 	into the
class of principal 	accelerator supervisor. 	These changes, 	UPTE
contends, 	were made without prior negotiations.
UPTE, 	however, 	did not 	challenge 	the change 	in job titles
until 	the 	filing of 	its 	second amended charge on February 27,
1996. 	This 	was more 	than one year after the 	alleged occurrence
of the change in early 1995. 	Thus, 	on its 	face, 	the charge was
not 	filed within 	six months 	of 	the 	date of 	the 	alleged change.
The 	lateness 	of 	the 	filing can be 	excused only if 	the 	charging
party establishes 	that 	it 	did not 	know and reasonably could not
have 	known about 	the 	change within the 	statutory period. 	Since
the burden of 	showing timeliness 	is 	that 	of 	the 	charging party,
it was 	for UPTE 	to 	show that 	it 	did not 	have actual 	knowledge of
the 	change within the 	statutory period of 	limitations.
Here, 	unlike 	the 	record it made 	regarding the 	Cyclotron,
UPTE presented no 	evidence 	about 	the 	circumstances 	of 	its
discovery of 	the 	change 	in 	accelerator operator 	job
classifications. 	I 	find therefore, 	that UPTE has not met 	its
burden of 	showing 	that 	its 	allegation about 	this 	matter was
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timely filed. 	Accordingly, 	the 	allegation about 	the 	abolition of
the position of 	accelerator operator 	supervisor and 	transfer of
employees 	into 	another class must 	be 	dismissed.
Alleged Unilateral 	Change
It 	is well 	settled that 	an employer that 	makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its duty to meet 	and confer in good faith. 	(NLRB v. 	Katz 	(1962)
369 U.S. 	736 	[50 LRRM 2177].) 	Such unilateral 	changes are
inherently destructive 	of 	employee 	rights 	and are 	a 	failure 	per
se of 	the duty to negotiate in good faith. 	(See Davis Unified
School District, 	et al. 	(1980) 	PERB Decision No. 	116; 	State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.) 	These principles are applicable to cases decided
under HEERA. 	(See Regents 	of 	the University of 	California 	(1983)
PERB Decision No. 	356-H.)
Because 	of 	the problems 	of Untimeliness discussed above, 	the
only University action that 	can be 	tested against 	the 	rules 	of
unilateral 	change 	is 	the hours 	change 	at 	the 	88-inch Cyclotron.
Hours 	of work 	is negotiable 	subject9 under the HEERA. 	The 	term
"hours" 	includes not 	only the number of 	hours 	to be worked but
also the 	time of 	day when they are 	to be worked. 	Thus, 	a 	change
in work shifts 	is 	a change 	in hours 	and is 	a negotiable 	action.
(Los Angeles 	Community College District 	(1982) 	PERB Decision
No. 	252.)
9See section 3562 (q) .
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It 	is clear, 	also, 	that 	the shift change at the Cyclotron
had both 	"a generalized effect" 	and a 	"continuing 	impact" 	on the
members of 	the negotiating unit. 	(Grant 	Joint Union High School
District 	(1982) 	PERB Decision No. 	196.) 	The assignment of
operators 	to work on 	the 	21-day schedule 	affected 	all 	accelerator
operators 	at 	the Cyclotron. 	It 	is 	apparent 	that 	in making the
change 	the 	University was 	asserting 	a 	right 	to 	change 	employee
hours as 	it 	saw fit.
UPTE argues 	that 	since at 	least 	September of 	1994, 	which was
prior 	to UPTE's 	certification as 	exclusive 	representative,
accelerator 	operators 	at 	the 	Cyclotron 	had worked 	seven-day
schedules, 	five days on and two off. 	Thus, 	UPTE argues, 	the
status 	quo was 	a 	seven-day work 	schedule. 	UPTE 	rejects 	the
evidence 	the University offered to 	show a past 	practice 	of 	shift
changes 	at 	the 	Cyclotron. 	UPTE argues 	that 	only a practice 	that
is 	"regular and consistent" 	or 	"historic 	or accepted" 	may be
considered, 	citing 	Pajaro Valley Unified 	School 	District 	(1978)
PERB Decision No. 	51. 	UPTE argues 	that 	there was only a single
nine-month period in the 	four years preceding April 	1, 	1995, 	that
all 	accelerator operators 	at 	the 	Cyclotron worked on 	a 	21-day
schedule. 	This is insufficient, 	UPTE argues, 	to establish a past
practice 	of 	21-day work 	cycles.
It 	is 	settled under PERB 	cases 	that 	the past practice
against which an employer's 	change 	is 	tested is 	not 	the 	exact
wage or hours 	that may be 	in effect 	at 	any certain time. 	Rather,
the past 	practice 	is 	a 	"dynamic 	status 	quo" 	under which 	"change
22

can be 	a normal part 	of 	the pattern of 	conduct 	between employer
and a union." 	(Regents 	of 	the University of 	California 	(1996)
PERB Decision No. 	1169-H.) 	Thus 	it 	is not 	the exact hours
that 	employees worked at 	or 	just 	before 	the 	date 	of UPTE's
certification that will 	determine 	the past practice. 	The past
practice 	here 	is 	the pattern of 	shift 	schedules under which
accelerator 	operators 	worked at 	the 	Cyclotron over 	the 	years
prior to April 	of 	1995.
As UPTE argues, 	it 	is 	true that 	there was only one period,
lasting nine months, 	during the 	four years prior to April 	1,
1995, 	when all 	Cyclotron operators worked a 21-day schedule. 	It
also 	is 	true 	that 	there was 	only one period, 	lasting seven
months, 	when all 	Cyclotron operators worked a 	seven-day schedule.
At 	all 	other times, 	some 	operators worked a 	21-day schedule 	and
some worked a 	seven-day schedule. 	In 	its 	search for 	the 	status
quo, 	UPTE 	chooses 	the 	one 	seven-month period when all 	Cyclotron
operators 	worked a 	seven-day 	schedule.
The 	status quo, 	however, 	was not 	a seven-day schedule or a
21-day schedule. 	This 	is because 	there was no 	single work
schedule 	or 	combination of 	schedules 	during 	the 	four years 	prior
to the certification of UPTE. 	The 	status 	quo was 	one of
constantly changing work 	schedules, 	sometimes 	a 	seven-day
schedule, 	sometimes 21 days, 	sometimes a combination of both.
Hours were 	set 	according to demands 	of 	experimenters 	and
managerial preferences. 	The 	status quo was 	a work environment 	of
fluctuating hours 	and 	schedules.
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In 	such an environment, 	it 	cannot be 	said that 	the
University changed a past 	practice when 	in April 	of 	1995 	it
directed all 	employees 	to work a 	21-day schedule. 	Such an
assignment 	at 	the 	Cyclotron was 	consistent 	with what 	had occurred
before. 	I conclude, 	therefore, 	that UPTE has 	failed to establish
a 	change 	in 	the past 	practice 	at 	the 	88-inch Cyclotron.10
Accordingly, 	I 	conclude 	that 	the 	charge 	and complaint must be
dismissed.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record 	in this matter, 	unfair practice 	charge
SF-CE-428-H, 	University Professional 	and Technical 	Employees, 	CWA
Local 	9119, 	v. 	The Regents of the University of California and
companion PERB 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall 	become
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
10In 	the 	absence 	of 	a 	showing of 	consistent 	hours worked by
employees at 	the Cyclotron, 	I 	cannot 	find a unilateral 	change 	in
the 	unalleged violation regarding Vickie 	Saling which 	is 	set 	out
in UPTE's brief. 	Although there was 	no evidence 	any other
employee 	ever had been required to work split 	shifts, 	I 	cannot
conclude 	that 	this 	assignment 	so deviates 	from the past 	practice
as 	to 	change 	its 	"quantity and kind." 	(Oakland Unified School
District 	(1983) 	PERB Decision No. 	367.) 	Nor is there evidence
that 	such an assignment, 	made to a single employee, 	had both 	"a
generalized effect" 	and a 	"continuing 	impact" 	on 	the members 	of
the 	negotiating unit. 	(Grant 	Joint 	Union High School 	District,
supra, 	PERB Decision No. 	196.)
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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 Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 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 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 Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
Dated: 	September 23, 	1996
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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