Regents of the University of California (University of California Los Angeles) (PERB 0267H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED HEALTH 	CARE 	EMPLOYEES,
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, LOCAL 660, AFL-CIO, CLC,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA 	(UCLA),
Respondent.
Case No. 	LA-CE-10-H
PERB Decision No. 	267-H
December 21, 	1982
Appearances: 	Helena S. Wise, Attorney 	(Geffner 	& Satzman) 	for
United Health Care Employees, 	Service Employees 	International
Union, Local 660, AFL-CIO, CLC; 	Susan M. Thomas, Attorney for
the 	Regents 	of 	the 	University of California.
Before Tovar, Jaeger, Morgenstern and Jensen, Members.
DECISION
MORGENSTERN, Member: 	This 	case 	is before 	the Public
Employment Relations Board 	(PERB or Board) 	on 	exceptions 	filed 	by
both United Health Care Employees, 	Service Employees
International Union, Local 660, AFL-CIO, CLC 	(SEIU), 	and the
Regents 	of 	the University of California 	(University or UCLA) 	to
the 	hearing 	officer's 	attached 	proposed 	decision. 	The 	University
excepts 	to 	the 	finding 	that 	it 	violated 	subsection 	3571(b) 	and
subsection 3571(a), 	derivatively, 	of 	the Higher Education
Employer-Employee 	Relations Act1 (HEERA or Act) 	by 	unilaterally
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
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increasing 	the 	workday 	of 	laboratory 	technologists 	employed 	in
the 	UCLA 	blood 	bank 	from 	10 	hours 	to 	10.5 	hours 	per 	day 	without
providing 	SEIU, 	the 	nonexclusive 	representative, 	with 	an
opportunity 	to 	meet 	and 	discuss 	the 	change 	prior 	to
implementation. 	SEIU 	excepts 	to 	the 	hearing 	officer's
dismissal 	of 	its 	allegation, 	first 	raised 	in 	its 	post-hearing
brief, 	that 	the University 	violated 	subsection 	3571 (a) 	by
threatening 	employees 	to 	discourage 	opposition 	to 	the 	change 	in
work 	hours. 	Both 	parties 	except 	to 	the 	hearing 	officer's
proposed 	order.2
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified.
Section 	3571 	provides, 	in 	pertinent 	part:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
2 S E I U 	does 	not 	except 	to 	the 	hearing 	officer's 	dismissal
of 	its 	allegation 	that 	the 	University's 	conduct 	constituted
reprisal 	against 	employees 	because 	they 	were 	engaged 	in
organizing, 	in 	violation of 	subsection 	3571(a). 	In 	dismissing
this 	charge, 	the 	hearing 	officer 	found 	that 	the 	record 	is
totally 	devoid 	of 	any 	anti-union 	animus, 	and 	that 	the
University 	had 	established 	operational 	necessity 	for 	the 	change
2
• 	• 	• 	• 	• 	• 	•
2

in 	that 	the 	unique 	work 	schedule 	at 	the 	blood 	bank was 	contrary
to University 	policy 	and 	was 	creating 	personnel 	problems
because 	other 	employees 	sought 	like 	treatment. 	No exception
having 	been 	taken 	to these 	findings, 	they 	are 	not 	now before 	us.
The 	Board 	has 	reviewed 	the 	record 	in 	light 	of 	these
exceptions 	and 	finds 	that 	the 	hearing 	officer's 	findings 	of
fact 	are 	free 	from 	prejudicial 	error 	and 	adopts 	them 	as 	the
findings 	of 	the Board 	itself.
For 	the 	reasons 	set 	forth 	below, 	the Board 	affirms 	the
hearing 	officer's 	proposed 	decision 	and 	order.
DISCUSSION
In California State University, 	Sacramento 	(4/30/82) 	PERB
Decision No. 	211-H, 	decided 	after 	the 	hearing officer's
proposed 	decision 	in 	this 	case, 	the Board 	held 	that HEERA
requires 	higher 	education 	employers 	to 	provide 	nonexclusive
representatives 	with 	notice 	and 	an 	opportunity 	to 	discuss
projected 	changes 	in 	access 	policy. 	After 	a careful
examination of 	the 	statutory language, 	the Board 	concluded
that, 	in enacting HEERA, 	the Legislature 	intended 	to preserve
representation 	rights 	previously 	enjoyed 	by 	nonexclusive
representatives 	under 	the 	George Brown Act3 	until 	such 	time
as 	an exclusive 	representative 	is 	selected. 	Quoting 	from 	the
Board's 	decision 	in Professional Engineers 	in California
Government 	(PECG) 	(3/19/80) 	PERB Decision No. 	118-S, which
3The 	George 	Brown Act 	is 	codified 	at 	Government 	Code
section 	3525 	et 	seq. 	HEERA became 	effective July 	1, 	1979.
Concurrent 	with HEERA's 	effective 	date, 	section 	3526 	of 	the
W	
3

George Brown Act 	was 	amended 	to 	remove 	those 	employees 	covered
by HEERA 	from 	coverage 	under 	the George Brown Act.
Section 	3529 	defines 	the 	scope 	of 	representation 	as
including:
. 	. 	. 	all matters 	relating to employment
conditions 	and 	employer-employee 	relations,
including, but not limited to, wages, hours,
and 	other 	terms 	and 	conditions 	of 	employment.
Section 3530 provides, 	in pertinent part, 	that:
The state 	. 	. 	. 	shall meet and confer with
representatives 	of 	employee 	organizations
upon request, 	and shall 	consider 	as fully 	as
such 	representatives 	deem 	reasonable 	such
presentations 	as 	are made 	by 	the 	employee
organization on 	behalf 	of 	its 	members 	prior
to 	arriving 	at a 	determination of 	policy or
course of 	action.
concerns 	the 	representation 	rights 	of 	nonexclusive
representatives 	under 	the 	State Employer-Employee 	Relations
Act, 	the Board stated, 	at page 8:
. . . 	It would 	be 	anomalous 	for 	the
Legislature 	in 	enacting 	a 	new law which
generally expands 	the 	rights 	of 	employees,
to 	strip employees 	in 	units 	with 	no
exclusive 	representative 	of 	any voice 	in a
matter 	as 	basic 	as wages.
The 	obligation 	to meet 	with 	nonexclusive 	representatives 	is
not 	the 	same 	as 	that 	imposed 	under 	HEERA 	with 	regard 	to 	an
exclusive 	representative. 	While 	the 	full 	extent 	of 	this
obligation must 	be 	defined on a 	case-by-case 	basis, 	it 	is 	clear
that 	the 	obligation 	exists 	as 	to matters 	which 	are 	"fundamental
to 	the fulfillment 	of 	the 	representational 	function of 	the
44

nonexclusive 	representative 	as 	embodied 	in HEERA's 	statutory
scheme." 	California State University, 	Sacramento, 	supra, 	at
page 32.
In the 	instant 	case, 	hours 	of 	work were 	directly affected
by 	the 	change. 	Blood 	bank 	employees 	were 	required 	to work 	an
additional 	one-half 	hour 	per 	day 	with 	no 	change 	in pay.
Clearly, 	hours of 	work 	are 	as 	fundamental 	as wages 	in
Professional Engineers 	in California Government 	(PECG), 	or 	as
the 	access 	policy 	at 	issue 	in California State University,
Sacramento. 	Therefore, 	we 	affirm 	the 	hearing officer's
conclusion, 	reached 	without 	benefit of 	the Board's 	decision 	in
California State University, 	Sacramento, 	that 	the University
had 	a 	duty 	under HEERA 	to provide SEIU 	with 	a 	reasonable
opportunity 	to meet 	and 	discuss 	the 	change 	of 	hours 	before 	it
was 	implemented.
In California State University, Sacramento, 	supra, 	the
Board 	reviewed 	the 	representational 	rights 	enjoyed 	by
nonexclusive 	representatives 	under 	the 	George 	Brown Act 	prior
to 	the 	effective 	date of HEERA. 	The Board 	expressly 	declined
to 	hold 	that 	nonexclusive 	representatives 	lost 	these
representational 	rights 	once HEERA 	became 	effective.
Therefore, 	cases 	defining 	the 	obligation 	to meet with
nonexclusive 	representatives 	under 	the George 	Brown Act 	are
persuasive 	in 	determining 	the 	extent 	of 	that 	similar 	obligation
under 	HEERA.
55

Under 	the George Brown Act, 	the 	obligation 	to meet 	and
confer 	includes 	the 	implied 	element 	of 	good 	faith 	(State
Association 	of 	Real Property Agents 	v. 	State Personnel Board
(1978) 	83 Cal.App.3d 206 	[147 Cal.Rptr. 	786]; 	and see Liplow v.
Regents 	of University of 	California 	(1975) 	54 	Cal.App.3d 	215
[126 	Cal.Rptr. 	515]).
The 	George Brown Act 	does 	not 	provide 	for 	exclusivity. 	By
virtue of 	this fact, 	an employer may not 	agree 	to a 	negotiated
settlement 	with 	a 	nonexclusive 	representative 	which 	would
discriminate 	against 	any 	other 	nonexclusive 	representative 	not
a party 	to 	the 	agreement. 	Therefore, 	unlike 	an 	employer's duty
to meet 	and 	negotiate 	in 	good 	faith 	with 	an exclusive
representative, 	in dealing with 	a 	nonexclusive 	representative,
good 	faith 	requires 	neither 	an obligation 	to 	reach 	agreement
nor 	to 	continue 	to meet 	until 	impasse.
Nonetheless, 	good faith 	in this 	context 	does 	require
meeting, 	listening 	and 	considering 	proposals 	with 	an 	open mind
prior 	to 	arriving 	at 	a 	determination of 	policy or 	course of
action. 	Absent 	such 	requirement, 	the 	obligation 	to meet would
be meaningless.
Having 	previously determined 	that, 	in enacting HEERA, 	the
Legislature 	intended 	to 	preserve 	representation 	rights 	enjoyed
by 	nonexclusive 	representatives 	under 	the 	George 	Brown Act
until 	such 	time 	as 	an exclusive 	representative 	is 	selected
(California State University, Sacramento, 	supra), we here
decide 	that 	under HEERA, 	as 	under 	the George Brown Act, 	the
6

obligation 	to meet 	and discuss 	with 	a 	nonexclusive
representative 	includes 	the 	good 	faith 	requirement 	discussed
above. 	Accordingly, 	we 	reject 	the University's 	argument 	to 	the
contrary.
The 	question 	of 	good 	or 	bad 	faith 	is 	primarily 	a 	factual
one which 	involves 	consideration of 	all 	facts 	of 	a 	particular
case 	and 	involves 	a finding of 	motive 	or 	state 	of 	mind, 	which
must 	be 	inferred 	from 	the 	evidence 	as 	a whole. 	State
Association of Real Property Agents, 	supra.
Here, 	we find, 	as did the hearing officer, 	that the
equities 	are weak on 	both 	sides. 	In such 	a case, 	the 	demeanor
and 	credibility of 	the 	witnesses 	are 	significant 	in 	the
determination of 	subjective 	good 	faith. 	We, 	therefore,
consider 	this 	an 	appropriate 	case 	for 	deferral 	to 	the 	hearing
officer. 	Santa Clara Unified School District 	(9/26/79) 	PERB
Decision No. 	104. 	Moreover, 	based on our 	careful 	review of 	the
record, 	as 	follows, 	we 	find no 	reason 	to disturb the 	hearing
officer's 	conclusion 	that 	the University 	evidenced 	a 	lack 	of
good 	faith, 	meeting 	"in 	form 	only" 	with 	"a 	fixed 	course 	of
action 	in mind" 	and 	without 	"openly 	seeking 	discussion 	that
could 	bring 	about 	a deviation 	from 	that 	fixed 	course."
Laboratory 	employees 	were 	first 	informed on July 	24, 	1979,
that 	the 	University proposed 	to 	change 	their 	work 	schedule when
the 	lab moved 	to 	new facilities 	in 	"late September." 	A 	firm
date 	for 	the move 	had not 	yet 	been 	set, 	and 	the 	record
indicates, 	not 	totally without justification, 	that 	employees
7

believed 	the University 	would 	not 	go 	through 	with 	the 	change 	in
long-standing 	practice.
Nonetheless, 	when Caroline Altman, 	coordinator 	of SEIU's
organizing 	campaign 	at UCLA, 	learned of 	the 	proposed 	change 	in
late July or 	early August, 	she 	immediately called Greg 	Kramp,
UCLA's labor 	relations manager, 	to protest 	the 	change. 	Several
conversations 	between Altman 	and 	Kramp followed, 	during 	which
Altman "was 	hoping 	that 	[Kramp] 	could 	talk 	the 	clinical 	labs
out of 	implementing 	this 	change."
At a 	staff meeting on September 	25, 	1979, 	Carma Rippee,
blood 	bank 	supervisor, 	informed 	employees 	that, 	because 	the
remodeling 	project for 	the 	blood 	bank 	was 	behind schedule, 	the
change 	in work hours 	would 	not 	be 	implemented 	until
October 	15. 	Kramp 	testified 	that October 	15 	was 	the 	"original
planned 	implementation 	date."
Upon 	learning of 	this date, 	Altman called Kramp, 	pointed
out 	the 	past 	practice 	on 	hours 	and 	accused 	the University 	of
interfering 	with SEIU's 	organizing 	campaign. 	By 	letter 	dated
October 	4, 	1979, 	Altman 	requested 	to meet 	and 	confer 	regarding
the 	proposed 	change. 	According 	to Altman's 	uncontroverted
testimony:
. . . 	we 	talked 	about 	dates 	vaguely 	even
before I 	wrote the letter. 	I mean, 	he knew
a 	letter 	was 	coming, 	but 	the 	letter 	was
written 	way 	after 	we 	first 	discussed 	the
meet 	and 	confer.
Based on 	the 	foregoing, 	we 	conclude 	that SEIU acted
8

promptly 	to protest 	the 	change 	and 	to 	request 	a meeting 	as 	soon
as 	a firm 	implementation date was 	set. 	We, 	therefore, 	find
that SEIU 	did 	not 	unreasonably 	delay 	its 	request 	for 	a meeting.
Kramp and Altman 	tentatively proposed 	to meet 	on
October 	17, 	18 or 	22. 	Kramp, 	therefore, 	agreed to postpone the
October 	15 	implementation 	date 	to provide 	an opportunity to
meet 	with SEIU. 	October 	29 	was 	selected 	as 	the 	implementation
date 	because 	it 	coincided with 	the 	end 	of 	daylight 	savings 	time
and 	would 	thereby minimize 	the 	number 	of 	schedule 	changes.
Altman 	subsequently 	informed 	Kramp 	that 	she 	was 	not
available 	to meet 	on 	any of 	the 	proposed 	dates. 	The 	parties
presented 	conflicting 	testimony 	regarding 	their 	several
telephone 	conversations 	discussing 	possible 	alternative 	dates,
and 	the 	record 	does 	not 	satisfactorily resolve 	the 	question of
why 	no meeting 	was 	scheduled 	during 	the 	week 	of October 	22
through October 	29. 	In any event, 	Altman 	and Kramp agreed 	to
meet 	on October 	29, 	the 	date of 	the proposed 	change, 	with
Altman 	requesting 	that 	implementation 	be 	postponed 	until 	after
the meeting 	and Kramp refusing 	to 	do 	so.
On the morning of October 	29, 	1979, 	the 	changed 	schedule
was 	implemented, 	requiring 	employees 	to 	arrive 15 minutes
earlier 	and 	leave 	15 minutes 	later. 	Later 	that morning, 	the
parties met 	to discuss 	the 	change.
The 	hearing 	officer 	found 	that 	the 	University's 	refusal 	to
delay 	implementation 	until 	after 	the 	parties met 	on October 	29
99

was 	evidence of 	bad faith. 	The University 	claims 	that 	its
refusal 	was 	based on 	sound 	business 	judgment, 	including
consideration of 	the lengthy advance 	notice, 	two prior 	delays,
and 	inconvenience 	to 	employees 	who 	were 	in the 	process 	of
making 	adjustments 	to meet 	the 	changed 	schedule. 	The
University further 	claims 	that, 	by 	postponing 	the 	tentative
meetings scheduled for October 17, 	18 or 	22, 	SEIU, 	not the
University, 	was 	responsible for 	delaying 	the meeting 	until
after 	implementation of 	the 	change. 	We 	disagree.
The 	selection 	of 	October 	29 	as 	the 	implementation 	date was
not motivated 	by 	any 	compelling operational 	necessity. 	The
only 	reason 	advanced 	for 	selecting 	this 	date was 	the 	fact 	that
it 	coincided 	with 	the 	end 	of 	daylight 	savings 	time 	so 	that 	the
number 	of 	schedule 	changes 	experienced 	by 	employees 	would 	be
minimized. 	As 	the 	first 	date 	set 	by 	the University,
October 	15, 	did not meet 	this criteria, 	it can hardly be
considered 	critical. 	The University 	similarly 	argues 	that 	an
additional 	postponement 	would 	have 	been 	inconvenient 	to 	the
affected 	employees. 	Certainly, 	postponement would 	have 	been 	no
more 	inconvenient 	than 	working 	an 	additional 	half-hour 	per 	day,
and 	the 	testimony of 	several 	employees 	indicates 	that 	they
would not 	have 	considered 	it 	inconvenient 	to delay 	the 	change
for 	as long 	as possible. 	Thus, 	we find the University's
proffered 	justification 	based 	on 	convenience 	to 	employees 	to 	be
pretextual.
10

The University 	also 	relies 	on 	the fact 	that 	the 	immediate
supervisor, 	Carma Rippee, 	stated 	that 	she 	did not 	want 	to delay
again. 	However, 	when Kramp asked Rippee, 	"if 	she wanted to
delay again," 	he 	gave 	no 	reason 	for 	the 	request 	and
specifically 	did 	not 	inform 	her 	that SEIU 	had 	requested 	the
delay 	to provide 	an 	opportunity 	to meet 	and 	discuss 	the
change. 	This 	was 	in 	contrast 	to Kramp's conduct when 	he
earlier 	asked Rippee 	to postpone 	the 	October 	15 date 	and
advised 	her 	of 	the 	reason. 	Given Rippee's general 	resistance
to the 	proposed 	change, 	Kramp's 	failure 	to provide 	her 	with
information, 	which might well 	have 	persuaded 	her 	to 	agree 	to
another 	postponement, 	renders 	Rippee's 	input 	insubstantial
justification 	for 	the University's 	refusal 	to 	delay 	and 	raises
an 	inference 	of 	bad 	faith on Kramp's part.
The University 	further 	claims 	that 	it 	refused 	postponement
because 	of 	the 	lengthy 	advance 	notice 	and 	because 	the 	date 	had
already 	been 	postponed 	twice. 	We 	find 	these 	arguments 	lacking
in merit. 	The 	lengthy 	advance 	notice 	serves 	to 	undercut,
rather 	than support, 	the University's 	position. 	The 10-hour
schedule 	had 	been 	in effect 	for 	eight 	years. 	The University
first 	informed 	employees 	that 	it 	proposed 	to 	change 	the
schedule 	in July 1979. 	Yet, 	October 	15 was 	the 	first date set
for 	implementation of 	the 	change. 	No 	date 	in "late September"
was 	ever 	set. 	Moreover, 	any alleged 	"delay" 	from late
September 	to October 	15 	was made 	by 	the University 	solely for
11
.

its own purposes, 	not at SEIU's request. 	Thus, 	the
University's conduct 	failed 	to demonstrate 	any urgency for 	the
change. 	The University's own dilatory behavior 	does not
justify 	its 	subsequent 	refusal 	to agree 	to an 	additional 	delay
of a few days, 	as requested by SEIU, 	to provide an opportunity
to meet 	and discuss 	the 	change prior 	to implementation.
Though we agree that SEIU's cancellation of 	tentatively
scheduled meetings may have evidenced poor judgment or lack of
all due diligence, 	we do not find this conduct sufficient to
constitute a waiver 	of 	its 	right 	to meet 	and discuss 	the
change.4 Neither 	is 	there any evidence 	in the 	record to
suggest 	that 	the 	purpose of 	the 	delay was 	to frustrate
discussion or 	otherwise 	indicate 	bad faith. 	Even 	if 	a waiver
could be implied by this conduct, 	any waiver was vitiated by
SEIU's subsequent renewed demand for 	a meeting and by the
parties' 	mutual agreement to meet at a later date. 	Anaheim
Union High School District 	(3/26/82) 	PERB Decision No. 201.
Absent a waiver, 	the University was 	not relieved of 	its
obligation to provide 	an opportunity to meet prior 	to its
implementation of 	the schedule 	change.
4See McLean v. NLRB 	(6th Cir. 1964) 	333 F.2d 84 	[56 LRRM
2475], enforcing 142 NLRB 235 	[53 LRRM 1021], where the court
upheld the Board's view 	that 	the 	union's failure to negotiate
during an eight-month period, while arguably "lax and
negligent," 	was 	no defense to the 	employer's subsequent 	refusal
to meet 	and negotiate since, 	". 	. 	. 	it seems 	to us that it
constituted more of 	a violation of duty owing to its members
than to 	[the employer]."
12

Based on 	all 	of 	the 	above, 	and given 	that 	the 	10-hour 	per
day 	schedule 	had 	been 	the 	past practice 	for 	eight years, 	the
hearing 	officer 	could 	reasonably 	conclude 	that 	the 	University
evidenced 	bad 	faith 	by 	refusing 	to 	delay 	implementation 	beyond
October 	29.
The 	hearing 	officer 	also 	found 	evidence 	of 	bad 	faith 	in 	the
University's 	failure 	to 	inform SEIU of 	the 	procedure 	for
applying 	for 	an 	exception 	to University policy 	and 	the 	grounds
on which such exception 	could 	be 	granted. 	At 	the 	hearing, 	the
University 	consistently maintained 	that 	the 	only 	way 	the
10-hour 	per 	day 	schedule 	could 	be 	continued 	would 	be 	by 	an
exception 	to University policy 	granted 	by 	systemwide
administration 	in Berkeley, 	and 	that grounds 	for 	such exception
did not 	exist 	in 	this 	case. 	Carma Rippee was 	so 	informed 	by
the 	personnel 	consultant 	in July 1979 	and, 	as 	a result,
abandoned 	her 	efforts 	to 	seek 	an 	exception. 	No one 	from
systemwide 	administration, 	the 	only 	body 	with 	authority 	to
grant 	an 	exception, 	attended 	the October 	29 meeting. 	Nor 	was
SEIU 	informed of 	the exception procedures. 	SEIU 	was 	not 	given
an 	opportunity 	to make 	its 	own 	arguments 	for 	an 	exception 	to
the 	properly 	authorized officials, 	and 	even 	information on 	its
right 	to do 	so was 	consciously withheld. 	In fact, 	the
University's 	position 	is 	that 	such 	information would 	have 	been
misleading, 	since 	no 	basis 	for 	procuring 	an 	exception 	existed.
13

Therefore, 	it 	appears 	the 	hearing 	officer 	could 	reasonably
conclude 	that 	the University 	engaged 	in 	this meeting 	in 	bad
faith, 	without 	an open mind or 	willingness 	to 	reconsider 	the
schedule 	change 	which 	it 	had 	already 	put 	into 	effect.
We, 	therefore, 	affirm 	the 	hearing officer's conclusion 	that
the University 	evidenced 	a lack 	of 	good 	faith, 	meeting 	in form
only 	and 	without 	openly 	seeking 	discussion 	that 	could 	bring
about a 	deviation from 	that 	fixed 	course, 	in violation of
subsections 	3571(a) 	and 	(b) 	of 	the Act.
We 	also 	affirm 	the 	hearing 	officer's 	dismissal 	of SEIU's
attempted 	amendment 	to 	its 	charge 	in 	its 	post-hearing 	brief,
where 	it 	alleged 	that Carma Rippee 	threatened 	and 	coerced
employees 	by 	urging 	them 	not 	to pursue 	their 	right 	to 	file 	an
unfair 	practice 	charge. 	The 	hearing 	officer 	properly 	found
that 	the 	original 	charge 	lacked 	allegations 	sufficient 	to put
the University 	on 	notice 	that 	it 	would 	be 	called 	upon 	to 	defend
Rippee's comments 	to employees 	at 	staff 	meetings, 	and 	that 	the
charge 	is 	barred 	by 	the 	six-month 	limitation period 	of
subsection 	3563.2(a)5 in 	that 	the 	conduct 	occurred 	between
5Subsection 3563.2(a) 	provides:
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.
14

July 	and October 	1979 	while 	the 	allegation of 	violation was
first made 	in April 	1981.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in this 	case, 	and 	pursuant 	to Government
Code 	section 	3563.3, 	it 	is 	hereby ORDERED that 	the Regents 	of
the University of California 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Denying 	to United Health Care Employees, 	SEIU,
Local 660, AFL-CIO, CLC, rights guaranteed by HEERA.
2. 	Denying 	to employees 	the 	right 	to representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	WHICH ARE
NECESSARY TO EFFECTUATE 	THE POLICIES 	OF THE 	HIGHER
EDUCATION 	EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
1. 	On request 	by United Health Care Employees, 	SEIU,
Local 660, 	AFL-CIO, 	CLC, 	return employees of 	the UCLA blood
bank 	to 	the 	status 	quo 	ante 	of 	a 	4-day/10-hour-per-day 	work
week, 	including 	one-half 	hour 	paid lunch, 	and meet 	with 	that
organization 	regarding 	hours 	of 	employment 	of 	those 	employees.
2. 	If 	the 	above-stated 	request 	is made, 	retain the
status 	quo 	ante 	for 	employees 	of 	the UCLA blood 	bank 	until
completion 	of 	discussion 	of 	hours 	of 	employment 	with United
Health Care Employees, SEIU, Local 660, AFL-CIO, CLC, 	but for
not more 	than 	30 	workdays 	after 	service 	of 	this Decision;
except 	that, 	in 	the 	event 	that 	the 	parties mutually 	agree 	that
a 	reasonable 	basis 	exists 	for 	filing 	exceptions 	to 	the
15

University's policy prohibiting 	paid 	lunch 	periods, 	then 	file
the 	request 	for 	exception 	and 	retain 	the 	status 	quo ant
- e work
schedule 	until 	the 	request 	for 	exceptions 	has 	been 	approved 	or
denied.
3. 	Within 	five 	(5) 	workdays after 	the date of
service 	of 	this decision 	in 	this 	matter, 	prepare and post
copies 	of 	the 	Notice 	to Employees 	attached 	as 	an 	appendix
hereto, 	signed by an authorized 	agent of 	the 	employer. 	Such
posting 	shall 	be maintained 	for 	at 	least 	thirty 	(30) 	workdays
at all work 	locations 	where 	notices 	to 	employees of 	the UCLA
blood 	bank 	customarily are 	placed. 	Such Notice must not 	be
reduced 	in 	size 	and 	reasonable 	steps 	shall 	be 	taken 	to ensure
that 	it 	is not defaced, 	altered or 	covered 	by any material.
4. 	Within 	twenty 	(20) 	workdays 	from service of 	this
decision, 	notify the Los Angeles 	regional director 	of 	the
Public Employment Relations Board, 	in writing, 	of 	the steps 	the
employer 	has 	taken 	to comply with 	the 	terms of 	this 	ORDER.
Continue 	to 	report 	in writing 	to 	the 	regional director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
regional director 	shall 	be 	served 	concurrently on 	the 	charging
party 	herein.
16

C. 	The 	allegation 	that 	the 	Regents 	of 	the 	University of
California 	violated 	subsection 	3571(a) 	because 	of 	comments 	by
Carma 	Rippee 	is 	DISMISSED.
Members 	Jaeger and 	Jensen 	joined 	in 	this 	Decision.
Member Tovar's 	concurrence begins 	on page 	18
17
.

TOVAR, Member, concurring: 	In California State University,
Sacramento (4/30/82) PERB Decision No. 211-H, I expressed my
disagreement with the majority's view that 	the Higher Education
Employer-Employee Relations Act imposes upon higher education
employers 	the legal duty to provide prior 	notice to, and meet
with, 	an employee organization which is the nonexclusive
representative of employees covered by the Act before making
changes in terms and conditions of employment. 	Particularly in
light of 	the Legislature's express direction, at Statutes 1978,
Chapter 	766, 	that the George Brown Act 	(and thus obligations
derived therefrom) 	should no longer 	apply to higher 	education
employees, 	I was 	unwilling 	to join the majority in distilling a
contrary legislative 	intent 	from l i t t l e more than dues 	and
hints 	garnered from the Act. 	It seemed to me that 	if the
Legislature had 	intended that employers should continue to bear
Brown Act obligations it could have and would have made that
clear.
It seems to me s t i l l that, 	inasmuch as 	the heart of the
HEERA is its system of exclusive representation, 	the
Legislature, 	if 	intending to authorize two concurrent modes of
representation, 	could simply have amended the Brown Act to add
the 	alternative of 	exclusive 	representation and in that way
achieve the end which the majority continues to endorse. 	That
it chose 	instead 	to draft an entirely new 	act 	for 	the
regulation of 	higher 	education labor 	relations, 	which itself
18

makes no express provision for a system of nonexclusive meeting
and 	conferring,1 suggests to me that there exists no
Legislative authorization for 	the dual system of 	representation
endorsed by the majority. 	Because of these considerations, 	I
am unpersuaded by the majority's assertion that the
Legislature's purpose in enacting the HEERA was merely to tack
on additional employee rights to the Brown Act.
It seems to me that in abandoning the Brown Act and
creating the HEERA the Legislature's purpose was to scrap the
California experiment with nonexclusive 	representation and opt
instead for 	the private sector model 	embodied in the National
Labor Relations Act 	(NLRA) , 	as amended. 	It is apparent that,
while not identical, 	the HEERA fits quite comfortably on the
NLRA structural framework, while being a substantially
different 	creature than the Brown Act. 	The NLRA, 	it is clear,
makes no provision for obligatory meeting and discussing
between an employer and a nonexclusive representative; 	under
Fire Fighters Union v. City of Vallejo (1974) 	12 Cal.3d 608, 	87
LRRM 2453, therefore, we should, by virtue of this guidance, be
compelled to conclude that the HEERA is similarly without such
a provision, 	unless 	the Legislature's contrary direction is
1I note, 	for 	example, 	that 	the HEERA makes 	specific
provision for 	released 	time for "representatives of 	an
exclusive 	representative" 	(emphasis added) 	for 	negotiating
sessions. 	No such provision is made, 	however, for released
time for 	nonexclusive representatives for 	the would-be purpose
of meeting and discussing.
19

express. 	Of course, 	as the majority acknowledges, 	there is no
such express direction in the Act. 	I note in this connection
that the other 	two acts administered by this agency - the
Educational Employment Relations Act and the State
Employer-Employee Relations Act - make somewhat different
provisions 	for 	the 	rights 	of 	employee organizations 	to
represent their members. 	For 	this reason I leave to another
day and another 	case any consideration of possible
meet-and-discuss 	rights 	under 	those 	acts.
I am pursuaded, however, to modify my previously expressed
strict denial of 	any surviving Brown Act rights in the HEERA.
I 	have 	considered the HEERA's unit determination provisions and
this Board's efforts in that regard, 	and note that as of 	the
date of 	this decision 	(nearly three 	and a half years 	after 	the
effective date of 	the HEERA) 	a substantial portion of the
employees covered by the Act have as yet had no opportunity to
elect an exclusive representative. 	Thus, while I 	continue to
interpret the HEERA as a clear mandate by the Legislature that
California higher 	education labor 	relations should 	be regulated
under 	a system redrawn in the federal mode, 	I 	find not a shred
of evidence or 	reason which suggests that the Legislature
intended that 	higher 	education employees should experience an
interim period in moving from the old system to the new during
which there should be no system of representation whatever
available to them. 	I 	think 	it 	can sensibly be inferred, 	after
20

examining 	the Legislature's 	actions in this 	area, 	that 	it was
intended that 	the 	approved form of 	employee representation
should move from the Brown Act's nonexclusive system to the
HEERA's program of 	exclusive 	representation without leaving
employees 	entirely disenfranchised in the interim. 	Until 	the
opportunity to elect an exclusive representative has been made
available to employees now covered by the HEERA, therefore, I
think we give effect to the intention of the Legislature by
finding 	that their 	nonexclusive representatives 	have the right
to receive prior notice and an opportunity to meet on and
discuss proposed changes in the terms and conditions of
employment of 	their members. 	These vestigial Brown Act rights
survive 	to this 	degree in the HEERA 	itself.
The record in the instant case shows that the employees had
not, 	at the time in controversy, 	had an opportunity to elect an
exclusive representative because the Board had not 	(and has
not) 	yet approved an appropriate representational unit,
pursuant to Article 5 of 	the Act, which includes those
employees. 	I 	therefore join the majority in finding that the
University had an obligation under HEERA to meet and confer 	in
good faith with SEIU.
I 	join the majority as well 	in finding that 	the University
failed to meet its obligation. 	In so finding, 	I 	do not rely,
as does 	the majority at p. 	11 of their opinion, on the fact
that 	the University's labor 	relations manager 	failed 	to 	inform
21

Supervisor 	Rippee 	that SEIU 	had 	requested 	a 	delay 	beyond
October 	29 when 	he 	called 	to 	ask how 	she 	felt about 	such 	a
delay. 	It 	appears 	to me 	that Kramp only wanted Rippee's
neutral, 	business-based opinion. 	I 	cannot make 	a finding here
that Kramp 	deliberately manipulated 	the 	conversation 	in 	an
effort 	to serve 	his own 	bad 	faith purposes. 	Had Kramp 	in fact
informed Rippee 	of SEIU's 	request 	for 	delay, 	and Rippee
nevertheless 	expressed 	the 	same opposition 	to further 	delay, 	it
could 	as 	easily 	be 	suggested 	that 	Supervisor 	Rippee 	only 	gave
that 	response 	because of 	anti-union 	bias. 	I 	am loathe,
therefore, 	to 	count 	against 	the University the fact that 	it
solicited a neutral opinion of Rippee. 	So, 	too, 	I dissociate
myself from the 	criticism, 	at p. 	13, 	of 	the University's
failure 	to 	have 	a 	representative 	from 	systemwide 	administration
at the October 	29 meeting. 	There 	is 	no proof, 	in my view, 	that
the 	University could not 	adequately discuss 	the 	disputed
subject matter 	with 	SEIU 	via 	the 	representatives 	who 	in 	fact
attended 	the meeting. 	The 	case 	law 	I 	have 	reviewed 	indicates
that 	both 	parties 	are 	free 	to 	choose their own 	representatives
unless 	their 	selection will 	make 	good 	faith participation 	in
the meeting 	impossible. 	See, 	e.g., 	General Electric Co. 	v.
NLRB 	(1969), 	412 	F.2d 	512 	[71 LRRM 2418].
I 	reach 	ultimate 	agreement 	with 	the majority 	in 	reliance on
the 	finding 	that 	the 	refusal 	to delay 	the 	meeting 	beyond
October 	29 	raises 	a 	strong 	inference of 	an 	unwillingness 	to
22

genuinely 	consider 	SEIU's 	input 	on 	the matter 	in 	good 	faith. 	I
join 	the 	majority 	in finding 	that 	while 	"SEIU's 	cancellation 	of
tentatively 	scheduled meetings may 	have 	evidenced 	poor 	judgment
or 	lack of 	all 	due 	diligence" 	as 	the majority notes, 	this
behavior 	is 	not 	so 	egregious, 	nor 	the 	need for 	schedule 	change
.
so urgent, 	as 	to 	dispel 	that 	inference. 	This, 	in conjunction
with 	the University's 	unwillingness 	to 	be more 	cooperative 	with
SEIU 	in 	providing 	information 	on 	the 	substantive 	and 	procedural
grounds 	involved 	in obtaining 	a 	variance 	in 	policy 	from
systemwide 	administration, 	leads me 	to conclude, 	as 	did the
majority, 	that 	the University 	did 	not 	fulfill 	its 	minimum
obligation 	under 	the Act.
23

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in unfair practice case No. 	LA-CE-10-H, 	in
which all parties had 	the 	right 	to participate, 	it has 	been
found 	that 	the 	Regents 	of 	the 	University of 	California 	violated
the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	by denying
United Health Care Employees, 	SEIU, 	Local 660, AFL-CIO, CLC,
rights 	guaranteed 	by HEERA by denying 	to 	it 	the 	right 	to
represent 	its 	members 	in discussion 	regarding 	hours 	of
employment 	at 	the 	UCLA blood 	bank 	and 	denying 	to 	employees 	the
right 	to representation. 	As a result of 	this conduct, 	we 	have
been ordered 	to 	post 	this 	Notice 	and 	we 	will 	abide 	by 	the
following:
A. 	CEASE AND DESIST FROM:
1. 	Denying 	to United Health Care Employees, 	SEIU,
Local 660, 	AFL-CIO, CLC, 	rights guaranteed by HEERA.
2. 	Denying 	to 	employees 	the 	right 	to representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS WHICH ARE
NECESSARY 	TO EFFECTUATE 	THE POLICIES 	OF 	THE HIGHER
EDUCATION EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
1. 	On 	request 	by United Health Care Employees, 	SEIU,
Local 660, 	AFL-CIO, 	CLC, 	return employees of the UCLA blood
bank 	to 	the 	status 	quo 	ante 	of 	a 	4-day/10-hour-per-day work
week, 	including one-half 	hour 	paid 	lunch, 	and meet with 	that
organization 	regarding 	hours 	of 	employment 	for 	those 	employees.
2. 	If 	the 	above 	stated 	request 	is made, 	retain the
status 	quo ante 	for 	employees 	of 	the 	UCLA blood 	bank 	until
completion of 	discussion 	of 	hours 	of 	employment 	with 	United
Health Care Employees, SEIU, Local 660, AFL-CIO, CLC, but for
not more 	than 	30 workdays 	after 	this Order 	becomes 	final;
except 	that 	in 	the 	event 	that 	the 	parties mutually 	agree 	that 	a
reasonable 	basis 	exists 	for 	filing 	exceptions 	to 	the
University's 	policy 	prohibiting 	paid 	lunch 	periods, 	then 	file
--
1

the 	request 	for 	exception 	and 	retain 	the 	status 	quo ante work
schedule 	until 	the 	request 	for 	exceptions 	has 	been 	approved 	or
denied.
Dated: 	Regents 	of 	the 	University of 	California
By: Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(3 0) 	WORKDAYS FROM THE DATE OF THE POSTING AND MUST NOT
BE DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL OR REDUCED 	IN
SIZE.
2
I
2

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
UNITED HEALTH 	CARE 	EMPLOYEES 	SERVICE
EMPLOYEES 	INTERNATIONAL 	UNION
LOCAL 660. AFL-CIO, CLC,
Charging 	Party,
v.
THE REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-10-H
Proposed 	Decision
(7/30/81)
Appearances: 	Helena S. 	Wise, 	Geffner & Satzman, 	for United
Health 	Care Employees, 	Service Employees 	International Union,
Local 660, AFL-CIO, 	CLC; 	Susan Thomas, 	staff of the General
Counsel, 	for 	the Regents 	of 	the University of California.
Decision by Sharrel J. 	Wyatt, 	Hearing Officer.
PROCEDURAL 	HISTORY
Allegations 	that 	hours 	of 	employment 	were 	unilaterally
changed 	without 	meeting 	and 	conferring 	form 	the 	basis 	for 	the
unfair 	practice charge 	filed on November 	23, 	1979, 	by 	the
United 	Health 	Care 	Employees, 	Service 	Employees 	International
Union, 	Local 660, 	AFL-CIO, 	CLC 	(herein SEIU or Charging Party)
against 	the 	Regents 	of 	the 	University of California 	(herein
University).1 The 	sections 	allegedly 	violated 	were
1Charge 	filed 	in 	the 	name 	of 	Service 	Employees
International Union, 	Local 660 (University Division) AFL-CIO v.
University of 	California 	at 	Los 	Angeles 	and 	was 	subsequently
changed 	as 	now 	reflected.
)
)
)
)
)
)
)
)
)
)
)
)
________________ )

sections 3565 	and 	3571(a), 	(b) 	and 	(c).2 	The matter was 	set
for 	informal conference on December 	20, 	1979. 	At 	the 	request
of 	the 	parties 	it 	was 	consolidated 	with 	several 	other 	cases 	for
informal conference and 	reset 	for January 	21, 	1980. 	It did 	not
settle, 	but was placed 	in abeyance 	at 	the 	request of 	the
parties. 	At 	the 	request of 	the parties 	it was 	scheduled 	for
formal hearing 	and 	heard 	on January 29 	and 	30, 	1981. 	During
the hearing, 	the charge was 	amended 	to allege 	that 	the
University's 	conduct 	constitutes 	reprisals 	because 	of 	its
knowledge 	that 	clinical 	lab 	employees 	were 	actively 	engaged 	in
organizing. 	The 	University moved 	to dismiss 	the 	amendment 	and
that 	motion was 	taken 	under 	consideration 	for 	determination 	in
this decision. 	The 	alleged 	violation of 	section 	3571(c) 	was
dismissed 	because 	Charging 	Party was 	not 	the 	exclusive
representative. 	By letter 	of March 	24, 	1981 	joint 	exhibits
were 	admitted 	in 	evidence. 	Briefs 	were 	filed 	in April 	and
reply briefs were 	filed June 	5, 	1981. 	Because 	the hearing
officer 	who 	initially 	heard 	the 	case 	for 	the 	Public 	Employment
Relations Board 	(herein PERB), 	left 	the 	agency 	to enter 	private
practice, 	this 	matter 	was 	reassigned 	for 	decision on
July 2, 1981 	pursuant 	to California Administrative 	Code, 	title
8, section 32168(b).
2All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
22

FINDINGS 	OF FACT
The 	Regents 	of 	the 	University of California 	is 	an 	employer
as defined 	in 	section 3562(h). 	The United Health Care
Employees, 	Service Employees International Union, 	Local 660,
AFL-CIO, 	CLC 	is 	found 	to be an employee organization as defined
in 	section 	3562(g) 	based 	on 	the 	record 	herein which 	establishes
that 	it has 	gathered 	authorization 	for 	representation, 	and 	has
sought 	to meet 	and 	consult 	on 	behalf 	of 	employees 	of 	the
employer 	herein.
In 	1972, 	the 	University 	initiated 	a pilot 	program regarding
the 	structure 	of 	the workweek 	for 	employees 	of 	its 	blood 	bank
at 	the 	UCLA medical 	facility. 	Prior 	to 	the pilot program,
employees 	worked 	five 	days per 	week 	eight 	hours 	per 	day3 and
were 	present 	at 	the 	facility 	for 	an 	unpaid 	one-half hour 	lunch
period 	and 	were 	entitled 	to paid 	rest 	periods. 	Carma 	Rippee,
the 	current clinical laboratory manager 	at 	the 	blood 	bank, 	was
a 	supervisor 	in 	1972. 	She 	applied 	for 	approval of 	the pilot
program 	which 	provided 	for 	a 	4-day/10-hours 	per 	day 	work 	week,
also referred 	to 	as 	4-40. 	This 	change 	in 	work week schedule
required 	approval 	at 	the 	campus 	level 	only. 	After 	a 	short
period, 	the 	program providing 	for 	a 	4-40 	work week became 	the
standard 	workweek 	at 	the 	blood 	bank.
3The Blood Bank 	is open 	24 	hours per 	day, 	seven days per
week.
W	
3

Because 	the 	blood 	bank 	was 	understaffed, 	employees
frequently were 	unable 	to 	take lunch or 	breaks. 	On 	the new
schedule, 	employees were 	actually 	at 	the 	facility 	for 	10
hours, 	but 	they were 	told by 	supervisors, 	personnel 	and payroll
to sign their 	time 	sheets 	to reflect 	10 	1/2 hours. 	Thus, 	the
practice 	evolved 	that 	employees 	worked 	from 	8:00 	a.m. 	to
6:00 p.m. 	and 	filled 	in 	time 	sheets 	from 	8:00 	a.m. 	to
6:30 	p.m. 	Carina 	Rippee 	did 	not 	seek 	an 	exception 	to University
policy 	from 	the 	administration 	in Berkeley which 	was 	required
in 	order 	for 	employees 	to 	have 	a 	paid 	lunch 	break.4
Nonetheless, 	informal policy 	at 	the 	blood 	bank 	was 	to permit
the 	4-40 	including 	a one 	half 	hour 	paid 	lunch 	because 	employees
frequently 	missed 	lunch 	and 	breaks 	due 	to 	the 	heavy 	work 	load.
By 	1975-76 	staffing 	had 	increased 	substantially 	and 	it 	was
no 	longer 	necessary 	for 	employees 	to work 	through 	lunch 	and
breaks 	to get 	their 	work done. 	All 	employees 	regularly 	took
two 15 	minute 	breaks and 	a one-half hour 	lunch. 	But 	the
practice 	of 	being 	present 	at 	the 	facility 	for 	10 	hours 	per 	day
4 	days per 	week 	and 	filling 	in 	time cards 	for 	10 	1/2 	hours 	per
day 	continued 	for 	several 	years.
Then, 	in 1979, 	two employees 	in another 	area of 	the UCLA
laboratories 	requested 	the 	4-40 	schedule. 	Because 	blood 	bank
employees 	were 	receiving 	a 	paid 	one-half 	hour 	lunch 	within 	a
4Exceptions 	were 	granted 	for 	good 	cause 	such 	as 	security
personnel 	who were 	required 	to 	be 	on call 	when 	eating 	lunch.
4

ten 	hour 	workday 	rather 	than a 	ten 	and 	one-half 	hour 	workday
with 	an 	unpaid 	lunch, 	the 	two employees 	requested 	the 	same
schedule. 	Their 	supervisor 	raised 	the 	issue 	at 	a management
meeting. 	In April or May 1979, 	Dr. 	George Smith, director 	of
the 	UCLA clinical 	laboratory 	approached 	Rippee 	about 	the
personnel 	problems 	created 	by 	the 	work 	schedule 	of 	employees
under 	her 	supervision 	and 	told 	her 	that 	to continue 	on 	that
schedule 	she 	would 	have 	to 	apply 	to 	the 	administration 	in
Berkeley 	for 	an 	exception 	to 	the 	policy 	that 	prohibited 	a 	paid
lunch 	period. 	Rippee 	put 	together 	her 	justification 	for
retaining 	the 	10-hour 	workday 	with 	paid 	lunch 	and 	spoke 	with
the 	personnel 	consultant. 	In mid-July 	1979 	the 	personnel
consultant 	informed 	Rippee 	that 	there 	were 	no 	unusual
circumstances 	at 	the 	blood 	bank 	that 	would 	justify 	an 	exception
to 	the 	policy prohibiting 	paid 	lunch 	periods. 	Personnel
informed 	Rippee 	that 	ordinarily, 	two weeks 	are 	permitted 	to
come 	into compliance with University policy. 	Since 	the 	blood
bank was 	scheduled 	to move, 	Rippee 	suggested 	that 	the 	change 	in
hours 	coincide 	with 	the move. 	It was 	agreed 	that 	the 	change 	in
hours 	should 	occur 	no 	later 	than 	the 	end 	of September.
In July, 	Rippee 	announced 	to her 	staff 	at 	a weekly 	staff
meeting 	that 	they 	would 	have 	to go 	to 	the 	schedule 	with 	an
unpaid 	half 	hour 	lunch 	break 	on October 	15.
5

At weekly lab meetings, 	the change 	in hours was discussed
with 	Dr. 	Smith 	and Carma Rippee. 	The 	unrebutted 	testimony of
several 	witnesses 	is 	that 	employees were 	told 	that 	if 	they did
not 	fight 	the 	change 	in hours, 	everything would 	remain nice 	and
flexible 	at 	the 	blood 	bank; 	otherwise privileges 	and
flexibility could 	be lost. 	For 	example, 	employees could 	be
required 	to 	return 	to 	a 	5-day/8-hours 	per 	day work 	week; 	that
personnel 	could 	come 	in with 	a 	fine 	tooth 	comb and 	regiment
them. 	Carma 	told 	employees 	that Dr. 	Smith wanted 	them on 	an
8-hour 	day. 	The 	schedule 	employees 	had 	worked 	since 	1972 	was
described 	by Carma as 	a privilege, 	a gift 	that was 	now being
taken away. 	It was 	better 	to give 	up one 	thing, 	like 	the half
hour, 	so 	there would 	not 	be 	anything else 	taken away.
Meanwhile, 	SEIU had 	been 	involved 	in organizing 	employees
at 	the lab. 	As early as February 1979 Ann Marie Capuzzi, 	a
clerical 	laboratory 	technician, 	brought in SEIU leaflets. 	Shortly
thereafter 	she 	requested 	bulletin 	board 	space 	from Rippee 	and
was 	assigned 	space 	in 	the 	hall 	right outside 	Rippee's office.
Caroline Altman, 	the coordinator 	of 	the University hospital
campaign 	at 	the 	University 	for 	SEIU, 	had 	had 	ongoing
conversations with Greg Kramp, 	the 	University's 	UCLA labor
relations 	manager. 	Altman 	and 	Capuzzi 	discussed 	where 	to hold
a demonstration with Kramp 	in June, 	1979 	which was 	then held
near 	the 	blood 	bank. 	Altman also 	told 	Kramp SEIU would 	file
6
6

V
its petition with PERB on September 	28, 	her 	birthday. 	It was
filed on October 	4, 	1979. 	Thus 	it 	is 	concluded 	that 	the
employer's 	representatives 	were 	aware 	that 	an organizing
campaign was 	in progress 	at 	the UCLA laboratories.
Although 	rumors 	of 	the 	change 	in 	hours 	had 	spread 	to
employees 	in June and 	the announcement was made 	in July, 	it was
not 	until 	Capuzzi 	returned 	from vacation 	in August 	that 	she
learned 	that 	a decision 	to move 	work 	hours 	into 	compliance 	with
University policy had 	been made. 	Until 	the change 	in hours was
officially 	announced, 	no one 	believed 	it 	would 	really happen.
They hoped 	that 	they could 	make 	it 	go 	away by 	ignoring 	it.
When 	they 	announced 	that 	the 	blood 	bank 	would 	move 	in 	October
and 	new hours would 	be 	effective October 	15, 	Capuzzi 	contacted
Altman 	at 	SEIU. 	Altman called 	Kramp 	and 	pointed 	out 	the 	past
practice on hours, 	accusing 	the University of 	trying 	to do
something 	quickly 	and 	interfering with 	SEIU's 	organizing
campaign. 	Altman 	then wrote 	to Kramp on October 	4, 	1979 	and
demanded 	to 	meet 	and 	confer.5
Kramp 	received Altman's 	letter 	on October 	5 	and 	called 	her
within a couple of days 	to 	set up a 	time 	to meet. 	Initially
the parties had October 	17, 	18 or 	22 	available to meet. 	At
Altman's 	request, 	Kramp 	asked 	Rippee 	to delay 	implementation.
5Kramp's 	first 	recollection 	of 	a 	problem 	regarding 	hours
at 	the 	blood 	bank 	was 	receipt 	of 	the 	demand 	to meet 	and 	confer
on October 	4. 	Nevertheless, 	Altman's 	testimony 	that 	she had
telephoned 	him on 	an 	earlier 	date 	is 	found 	credible.
7

She 	moved 	implementation 	from October 	15 	to October 	29,
advising 	employees 	that 	this 	would 	coordinate 	with 	daylight
savings 	time. 	No mention was made 	that 	the 	delay was 	to permit
the Opportunity 	to meet 	and 	confer 	or 	consult.
According to Altman, 	she 	told 	Kramp she 	could 	not 	meet 	on
October 	17, 	18 	or 	22 	because 	she had 	a 	leadership conference
with 	the 	International 	she 	had 	to 	attend. 	She 	said 	Kramp
proposed 	October 	29. 	She 	called 	him 	to protest 	meeting 	on 	the
date 	set 	to 	implement 	new hours, 	saying 	they had 	worked 	the
10 	hour 	day 	for 	7 	to 8 	years 	and 	a 	few more days would 	not
hurt. 	She 	said 	Kramp 	said 	he 	had 	asked 	the 	lab 	to delay 	and
they 	absolutely would 	not 	do 	it. 	She 	said 	Kramp was 	not
available 	October 	22 	and 	that 	he 	had 	been 	available 	to meet
October 17, 18, 	22 or 	29 only.
Kramp's 	version 	differs 	substantially. 	He 	testified 	that
the meeting 	was delayed 	from October 	17 	to 22, 	then 	to
October 	29 	because 	the 	SEIU 	representatives 	said 	they had 	to
meet 	with 	their 	attorney 	before 	the 	session. 	This 	is
corroborated 	by Terry Toles, 	a witness 	for SEIU, 	who 	testified
the delays 	were 	to 	permit 	them 	to meet 	with 	the 	attorney 	before
meeting 	with 	the 	University. 	SEIU's 	attorney was 	not 	available
because he or 	she 	had 	other 	court 	appearances.
Kramp 	stated 	he 	was 	available 	to meet 	everyday 	from
October 	23 	through 	28 	or 	could 	have 	rescheduled 	his 	calendar 	to
be 	available. 	He 	said 	he 	told Altman he 	would 	try 	to be
88

available 	to meet 	whenever 	possible. 	She proposed 	October 	29
and 	he 	agreed 	to 	that 	date 	but 	explained 	that 	implementation
was 	scheduled 	for 	that date. 	She 	suggested 	that 	implementation
be delayed 	and he 	refused 	because 	(1) 	it 	is 	highly unusual 	to
postpone 	a 	change 	in working 	conditions, 	especially when 	there
has been long advance 	notice, 	and 	(2) 	implementation had
already 	been delayed 	for 	two weeks. 	He 	said 	he 	told Altman
there 	was 	sufficient 	time 	to meet 	and 	he 	was willing 	to meet
anytime 	from October 	23 	to October 	29. 	He denied 	that 	he 	ever
asked 	the 	blood 	bank 	to delay 	the 	October 	29 	implementation
day. 	In 	fact, 	he 	asked Rippee 	if 	she would 	be willing 	to delay
implementation 	again, 	but did 	not 	tell 	her 	why according 	to
Rippee.
Altman 	indicated 	that 	when 	she 	told 	Kramp 	she 	could 	not
meet on October 	22, 	she did 	not propose 	any other 	date 	except
October 	29 	and 	that 	she 	did 	discuss 	delaying 	implementation
stating 	that 	they had 	been 	out 	of 	compliance 	for 	eight 	years
and 	two more 	days 	would 	not 	hurt.
On October 	19, 	Kramp wrote 	the 	following letter 	to Altman:
I 	have 	met 	with 	the management 	of 	the
Clinical Laboratories, 	and 	they are most
willing 	to meet 	with 	you 	and 	certain Blood
Bank 	employees 	whom you 	have 	designated 	on
Monday, October 29, 1979.
It 	is 	unfortunate 	that you 	were 	unable 	to
meet with management on October 	17, 	18 or
22 r 	1979, 	as we had previously discussed.
As you 	know, 	the department 	had 	announced
9
9

its 	intention 	to change 	the hours of work 	of
Blood Bank 	employees on July 24, 	1979. 	The
effective 	date 	of 	change 	was 	postponed 	from
October 15, 	1979 	to October 	29, 	1979, which
should 	have made 	a meeting 	possible 	prior 	to
the 	implementation date.
Therefore, 	while we will 	be glad 	to discuss
the 	concerns 	of employees 	on
October 	29, 	1979, 	you should know that
management 	intends 	to 	implement 	the 	new work
schedule 	effective 	that 	same date.
From the 	foregoing, 	it 	is 	found 	that 	the 	University did 	not
bring 	about 	the delay 	in meeting with SEIU. 	Rather, 	SEIU
representatives 	delayed 	until 	October 	29 	to meet 	with 	their
attorney 	and 	the 	University 	would 	not 	delay 	implementation 	of
the change 	in hours.
On October 	29, 	blood 	bank 	employees 	on 	the 	day 	shift
reported 	to work 	at 	7:45 	a.m. 	and 	worked 	until 	6:45 	p.m. 	Swing
shift 	also 	increased 	its 	workday 	by 	one-half 	hour. 	Graveyard
was 	retained 	on 	the 	ten-hour 	workday 	which 	included 	a 	paid
one-half 	hour 	lunch 	because 	only one 	employee 	works 	that
shift. 	No 	exception 	to University policy was 	sought 	or
received 	as 	to 	that 	employee's 	work 	schedule.
Representatives 	from each 	side 	met 	to discuss 	the 	change 	in
schedules 	on 	October 	29 	after 	implementation.
SEIU 	felt 	no one 	in 	management 	indicated 	willingness 	to
reconsider 	the 	change 	in hours, 	that 	they had 	changed 	the 	hours
and 	were 	going 	forward 	with 	the 	change. 	At 	the 	meet 	and 	confer
session, 	SEIU protested 	implementation of 	the 	change, 	made
10

proposals 	and 	submitted 	a 	petition 	signed 	by 	nearly 	all
affected 	employees. 	The 	University 	later 	declined 	those
proposals.
The University did 	not 	tell 	SEIU what 	had 	to be done 	to
obtain 	an 	exception 	to 	University policy 	which 	prohibited 	paid
lunch 	periods. 	Carma 	Rippee 	indicated 	that 	employees 	did
suggest 	some 	new 	ideas 	that 	could 	be 	used 	to 	justify 	an
exception 	to 	the 	University's 	no paid 	lunch 	policy.
The 	organizing 	campaign 	was 	described 	as 	going 	well 	both
before 	and 	after 	the change 	in hours.
ISSUES
1. 	Whether 	the Charging 	Party may 	amend:
A. 	During 	the 	hearing 	to 	allege 	that 	the 	unilateral
changes 	contained 	in 	the 	charge were made 	as 	reprisal 	for 	an
active 	organizing 	campaign?
B. 	Based 	on 	fact 	not 	alleged 	in 	the 	charge 	but
presented 	at 	the 	hearing 	and 	argued 	in 	brief?
2. 	Whether 	the change 	in hours was a reprisal 	for 	an
active 	organizing 	campaign?
3. 	A. 	Did 	the 	University have 	an obligation 	to meet 	and
discuss 	with 	SEIU prior 	to 	implementing 	the 	change 	in 	hours?
B. 	If 	so, 	did 	the University breach 	that duty?
11

CONCLUSIONS 	OF LAW
I. 	The Amendments
A. 	During 	Hearing
During 	the 	hearing, 	SEIU amended 	to allege 	that 	the
University's 	conduct 	constitutes 	reprisals 	because 	of 	its
knowledge 	that 	clinical 	lab 	employees 	were 	actively 	engaged 	in
organizing.
The 	unfair 	practice 	charge 	alleges 	violation 	of 	sections
3565 	and 	3571(a) 	and 	(b).6 The 	specific 	allegations 	state:
Since 1972, 	the clinical laboratory
technologists 	had 	worked 	a 	10-hour 	day,
4-day work 	week, 	in 	the 	blood 	bank 	of 	the
clinical 	laboratory 	at UCLA. 	The 	past
practice of 	the 	technologists has been, 	for
example, 	to 	sign 	in 	at 	8:00 	a.m. 	and 	leave
at 	6:00 p.m.; 	however, 	to write 	6:30 p.m. 	on
their 	time 	sheets.
On or 	about July 1979, 	in 	anticipation of
collective 	bargaining, 	the 	technologists
were 	instructed 	that 	their 	work 	day would
become 	10-1/2 	hours. 	The 	technologists
requested 	to 	meet 	and 	confer 	about 	the
proposed 	change 	in 	hours 	and 	working
conditions. 	Prior 	to any meeting 	and
conferring 	taking place, 	management
unilaterally 	implemented 	the 	change 	in 	hours
and working 	conditions. 	(Emphasis 	added.)
6These 	sections 	read 	as 	follows:
3565. 	RIGHT TO FORM AND PARTICIPATE 	IN
EMPLOYEE 	ORGANIZATION: 	RIGHT 	OR REFUSAL 	TO
JOIN 	OR 	PARTICIPATE
Higher 	education 	employees 	shall 	have 	the
right 	to 	form, 	join and participate 	in 	the
activities 	of 	employee 	organizations 	of
12

their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of 	meeting 	and 	conferring. 	Higher
education 	employees 	shall 	also have 	the
right 	to 	refuse 	to 	join 	employee
organizations 	or 	to participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible 	under 	this 	chapter.
3571. 	UNLAWFUL PRACTICES: 	EMPLOYER
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(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.
(b) 	Deny 	to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
This 	amendment 	will 	be 	permitted 	because 	the 	sections
alleged 	to 	be 	violated 	combined 	with 	the 	specific 	allegations
of 	the 	charge 	provide 	enough 	notice 	and 	are 	related 	to 	the
amendment 	closely 	enough 	that 	the 	amendment 	is 	not 	found 	to
prejudice7 the 	rights 	of 	the 	University.
After 	the 	issuance of a complaint, 	the Board
may 	allow 	an 	amendment 	to 	the 	answer 	upon
written or 	oral 	motion on 	the 	record, 	unless
a 	party objects 	to 	the 	amendment 	and 	the
Board 	determines 	that 	such 	party 	shall 	be
prejudiced 	by 	the 	amendment. 	Any 	such
amendment 	allowed 	by 	the Board 	shall 	be
automatically 	incorporated 	as 	part 	of 	the
complaint.
7See Cal. Admin. Code, 	title 8, 	section 32655(b).
13

The 	amendment 	relates 	to 	the 	intent 	of 	the 	University 	in
making 	the 	changes 	contained 	in 	the 	charge 	and 	not 	to
additional 	factual 	allegations 	against 	which 	the 	University
would 	be 	required 	to call 	witnesses 	to defend.
Any 	claim 	of 	prejudice 	to 	the 	University 	was 	further
ameliorated 	by 	the 	ruling 	of 	the 	hearing 	officer 	that 	on
request, 	the University would 	be 	granted 	a continuance.
Therefore, 	this amendment 	is permitted.
B. 	Amendment 	by Brief
In 	its 	brief, 	SEIU argues 	for 	a 	finding 	that 	the University
violated 	HEERA 	because 	of 	the 	threats 	and 	coercion 	of
Carma 	Rippee 	in 	urging 	employees 	not 	to pursue 	their 	right 	to
file an unfair practice charge 	(see facts, 	p. 	5-6). 	In the
charge 	itself, 	there 	is 	not 	even 	the 	slightest 	hint 	that 	the
University would 	be 	called 	upon 	to defend 	such 	a charge.
Because 	the 	charge 	does 	not 	contain 	allegations 	to put 	the
University on 	notice 	that 	it will 	be 	called 	upon 	to defend
Rippee's comments 	to employees 	at 	staff meetings, 	the 	arguments
made 	by 	the 	Charging 	Party 	regarding 	this 	are 	dismissed.
This 	argument 	based 	on 	evidence 	presented 	at 	the 	hearing 	is
essentially 	a 	brand 	new charge. 	Since 	it was 	first presented
in January 1981, 	and 	first 	urged 	as a violation 	in 	briefs 	filed
in April and June of 1981, 	it must be dismissed. 	The 	facts
14

arose 	between 	July 	and 	October 	1979 	and 	are 	barred 	by 	the
six-month 	limitation 	period 	contained 	in 	section 	3563.2 (a)8
II. 	No Reprisals
The 	PERB 	fashioned 	a 	test 	for 	analysis 	of 	alleged
violations of 	section 	3543.5(a). 	Since 	the wording of 	that
section 	is 	nearly 	identical 	to 	the wording of 	section 	3571(a),
it 	is 	appropriate 	to apply 	that 	test 	to alleged violation of
section 	3571(a). 	The 	test 	set 	forth 	is Oceanside Carlsbad
Unified School District 	(1/30/79) 	PERB Decision No. 	89 	reads
in relevant part 	as 	follows:
The 	Test
To 	assist 	the 	parties 	and 	hearing 	officers
in 	this and future cases, 	PERB finds 	it
advisable 	to 	establish 	comprehensive
guidelines 	for 	the 	disposition of 	charges
alleging violations of section 3543.5(a):
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which 	violations of
section 3543.5(a) 	are alleged;
2. 	Where 	the 	charging 	party establishes
that 	the 	employer's 	conduct 	tends 	to or
does 	result 	in 	some 	harm 	to 	employee
rights 	granted 	under 	the EERA, 	a prima
facie 	case 	shall 	be deemed 	to exist;
8Section 	3563.2 (a) 	reads:
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

3. 	Where 	the harm to the employees' 	rights 	is
slight, 	and 	the 	employer 	offers 	justification
based on operational 	necessity, 	the 	competing
interest of 	the 	employer 	and 	the 	rights 	of 	the
employees 	will 	be 	balanced 	and 	the 	charge
resolved 	accordingly;
The 	University has 	established 	that 	permitting 	employees 	at
the 	blood 	bank 	to work 	shorter 	hours 	was 	creating 	personnel
problems 	because 	employees 	in other 	areas 	of 	the 	laboratory
were 	seeking 	like 	treatment. 	Thus, 	the 	record 	reflects some
justification 	based 	on 	operational 	necessity.
Nothing 	in 	the 	record 	supports 	a 	finding 	that 	any 	part 	of
the University's motive 	in making 	the 	change 	in hours 	was
because of 	the organizing campaign. 	Indeed, 	the 	record 	is
totally devoid 	of 	any 	evidence 	of 	union 	animus9 in 	arriving
at 	the decision 	to 	implement 	the change 	in hours. 	It 	is
therefore 	found 	that 	the 	University 	did 	not 	make 	the 	decision
to change 	hours 	as 	a 	reprisal 	for 	employees organizing 	and 	did
not violate section 3571(a).
III
A. 	The 	University had 	a 	Duty 	to Meet 	and Discuss
The 	University 	urges 	a 	finding 	that 	it 	had 	no obligation 	to
meet 	and 	consult with 	a 	non-exclusive 	representative 	because
9Rippee's 	comments 	to 	employees 	to discourage 	them 	from
protesting 	the 	change 	in 	hours 	reflects 	intent 	to discourage
exercise of 	the 	right 	to 	file an 	unfair 	practice, 	but does 	not
relate 	to 	animus 	because 	employees 	were 	actively organizing.
Further, 	her 	comments were 	after 	the decision 	to change hours
and 	do not 	relate 	to any 	union 	animus 	in 	reaching 	that decision,
16

Higher 	Education 	Employer 	Employee 	Relations Act 	(herein 	HEERA
or 	Act) 	lacks 	the 	specific 	statutory 	language 	contained 	in 	the
State Employer-Employee 	Relations Act 	(herein SEERA) 	at 	section
3515.5 	which 	expressly provides 	that 	non-exclusive
representatives 	have 	"the 	right 	to 	represent 	their 	members 	in
their 	employment 	relations 	with 	the 	state" 	until 	selection of
an 	exclusive 	representative.
In Professional Engineers 	in California Government
(3/19/80) 	PERB Decision No. 	118-S 	the Board, 	among other
things, 	decided 	that 	the 	non-exclusive 	representative 	had 	the
right 	to meet 	and discuss 	the 	issue of wages with 	the 	employer,
stating:
If we 	were 	to adopt 	respondent's 	argument
that 	non-exclusive 	representatives 	have 	no
right 	to meet 	and 	discuss 	wages 	with 	the
state 	employer, 	employees would 	be 	left with
fewer 	rights 	than 	they had 	before SEERA. 	It
would 	be 	anomalous 	for 	the 	Legislature 	in
enacting 	a 	new 	law 	which 	generally 	expands
the 	rights of employees, 	to strip employees
in 	units 	with 	no exclusive 	representative 	of
any voice 	in a matter 	as 	basic 	as wages.
The 	Board 	concluded 	that,
. 	. 	. 	the obligation 	imposed by the statute
on 	the 	state 	employer 	with 	respect 	to
nonexclusive 	representatives 	is 	to provide 	a
reasonable 	opportunity 	to 	meet 	and 	discuss
wages with 	them prior 	to 	the 	time 	the
employer 	reaches 	or 	takes 	action on a policy
decision. 	(Emphasis 	added.)
17

In Professional Engineers 	in Cal. 	Government v. 	Department
of Transportation 	(1980) 	114 	Cal.App.3d 	93 	the 	court 	held 	that
a meet-and-confer 	controversy 	arising 	under 	the 	George 	Brown
Act had 	become moot 	with 	the 	passage 	of 	the 	SEERA. 	However,
the 	court 	recognized 	that 	non-exclusive 	employee 	organizations
had 	the 	right 	to 	represent 	their 	members 	pending 	the 	selection
of 	the negotiating 	agent, 	and 	that 	the 	state employer 	had 	been
continuing 	to do 	so. 	"Such 	communication," 	said 	the 	court,
"seems 	consistent 	with 	SEERA."
In 	interpreting 	SEERA, 	both 	PERB and 	the Court of Appeals
in 	the 	above 	cited 	cases 	have 	recognized 	that SEERA provided
expanded 	rights of 	representation 	to 	state 	employees. 	It 	would
thus 	be 	anomalous 	to permit 	lesser 	rights during 	the 	hiatus
prior 	to 	selection of 	an 	exclusive 	representative 	than
employees 	enjoyed 	prior 	to passage 	of 	SEERA.
Likewise, 	HEERA provides 	expanded 	rights 	of 	representation
to employees 	of 	higher 	education employers. 	While 	lacking 	the
specific provision of 	section 	3515.5, 	HEERA does 	provide
specific 	stated purposes. 	Section 	3565 	states:
Higher 	education 	employees 	shall 	have 	the
right to 	form, 	join and participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own choosing 	for 	the purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of meeting 	and 	conferring. 	Higher
18

education 	employees 	shall 	also 	have 	the
right 	to refuse 	to 	join 	employee
organizations 	or 	to participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible under 	this 	chapter. 	(Emphasis
added.)
It 	is 	noted 	that 	representation 	and 	meeting 	and 	conferring
are 	treated 	as 	separate 	functions 	by 	this 	section. 	Only an
exclusive 	representative 	can 	"meet 	and 	confer" 	with 	the
employer. 	(Section 	3562(d).) 	No 	such 	restriction 	is placed 	on
the 	right of representation per 	se. 	Indeed, 	one portion of 	the
Act 	apparently permits 	an 	individual 	or 	a 	non-exclusive
employee 	group 	to 	represent 	employees 	in 	the 	adjustment 	of
grievances 	after 	the 	selection 	of 	the 	exclusive 	negotiating
agent. 	(Section 	3567.)
Additionally, 	section 3560 (e) 	of the Act, 	which 	sets 	forth
the 	legislative purpose 	to provide:
. . . 	an 	atmosphere 	which 	permits 	the
fullest 	participation 	by 	employees 	in 	the
determination 	of 	conditions 	of 	employment
which 	affect 	them. 	It 	is 	the 	intent of 	this
chapter 	to 	accomplish 	this 	purpose 	by
providing 	a 	uniform 	basis 	for 	recognizing
the 	right 	of 	the 	employees 	of 	these 	systems
to 	full 	freedom of 	association,
self-organization, 	and 	designation of
representatives 	of 	their 	own 	choosing 	for
the 	purpose 	of 	representation 	in 	their
employment 	relationships 	with their
employers 	and 	to 	select 	one 	of 	such
organizations 	as 	their 	exclusive
representative 	for 	the 	purpose 	of meeting
and 	conferring. 	(Emphasis 	added.)
19

Further 	indication 	of 	legislative 	intent 	to 	extend
representation 	rights 	to 	employee 	organizations 	prior 	to
achieving 	exclusivity 	is 	found 	in 	section 	3562(g):
Employee 	organization 	means 	any 	organization
of 	any 	kind 	in 	which 	higher 	education
employees 	participate 	and 	which 	exists 	for
the purpose, 	in whole or 	in part, 	of dealing
with 	higher 	education 	employers 	concerning
-grievances, labor disputes, wages, hours,
and 	other 	terms 	and 	conditions 	of 	employment
of 	employees. 	(Emphasis 	added.)
The 	legislative design of 	both HEERA and 	SEERA 	is 	so
similar 	and 	the 	intent 	to 	expand 	employee 	rights 	so 	basic 	that
even without 	a provision 	similar 	to 	section 	3515.5, 	the 	intent
to provide 	the 	reasonable 	opportunity 	for 	a 	non-exclusive
representative 	to discuss 	a matter 	as 	fundamental 	to 	employment
relations 	as 	hours 	of 	employment 	is 	the 	only 	interpretation
which would 	further 	the 	"fundamental 	interest 	in 	the
development 	of 	harmonious 	and 	cooperative 	labor 	relations
between 	the 	public 	institutions 	of 	higher 	education 	and 	their
employees." 	(Section 	3560(a).)
It 	is 	therefore 	found 	that 	SEIU had 	the 	right 	to a
reasonable 	opportunity 	to meet 	and 	discuss 	the 	proposed 	change
and 	hours 	of 	employment.
B. 	The Breach 	of 	Duty
Very little can 	be 	said 	in defense 	of 	either 	parties'
position 	regarding 	the 	implementation of 	the 	change 	in 	hours 	on
October 29, 1979.
20

The 	University 	had 	had 	the 	practice 	of 	a 	4-40 	work 	week 	for
seven 	to eight years. 	They 	set 	the date 	of 	implementation 	for
October 	15, 	1979 	without 	the 	benefit of 	input 	from employees or
employee organizations. 	The reasons 	(supra, 	p. 	8) 	for 	their
adamant 	refusal 	to move 	it 	beyond 	October 	29 	when 	that 	became
the 	agreed 	upon 	date 	on 	which 	they 	would 	meet 	with 	SEIU are weak
and 	certainly do not 	rise 	to 	the 	level 	of 	business 	necessity.
Thus, 	the 	approach 	of 	the University 	is 	indefensible 	from 	the
viewpoint 	of 	good 	faith 	discussion. 	One 	two-week 	delay does
not 	exhibit 	an open mind.
Conversely, 	employees 	knew 	the 	date 	set 	for 	implementation
on July 	24. 	Their 	union 	representative 	knew 	the 	date 	in 	early
August. 	But 	it was not 	until October 	4 	that 	they wrote 	to 	the
University 	requesting 	to meet 	and 	confer 	When 	a 	date 	was
agreed 	upon 	and 	implementation 	delayed 	until 	October 	29, 	the
employee 	organization 	requested 	a 	delay 	in 	the 	meeting 	to
October 	29 	for 	reasons 	that 	are 	in conflict, 	one SEIU witness
stating 	it 	was 	to 	attend 	a 	leadership conference 	of 	the
International, 	another 	SEIU witness 	stating 	it was 	to confer
with 	their 	attorney. 	With 	the 	extensive 	testimony 	by SEIU
witnesses 	that 	they 	felt 	that 	the 	University was 	going 	through
the motions 	with a 	set determination 	to 	implement 	the change 	in
hours 	and 	the 	poor 	record made 	by SEIU as 	to 	its 	need 	to delay
the meeting 	to October 	29 	it 	raises 	the 	suspicion 	that 	the 	real
21

purpose 	of 	SEIU was 	to 	delay 	the 	inevitable 	for 	as 	long 	as
possible.
In 	this 	setting of weak 	equities on both 	sides, 	a 	further
examination of 	the 	surrounding 	facts 	tips 	the 	scale 	in 	favor
of SEIU.
Rippee 	had 	met 	with 	personnel 	regarding 	seeking 	an
exception 	to University 	policy 	that 	prohibited 	paid 	lunches.
In her 	testimony, 	she 	indicated 	that 	SEIU gave 	her 	an
additional 	reason 	she 	had 	not previously 	considered 	at 	the
October 	29 	meeting. 	However, 	at 	the October 	29 	meeting the
representatives 	of 	the 	University did 	not 	inform SEIU 	that 	an
exception 	was 	necessary 	to 	obtain 	a 	deviation 	from University
policy or 	the 	reasons 	for 	which 	the 	University would 	be 	willing
to grant 	an exception 	to 	the policy. 	This 	failure on 	the part
of 	the 	University 	leads 	to 	the 	conclusion 	that 	they met 	with
SEIU 	in 	form only, 	that 	they had 	a 	fixed 	course 	of 	action 	in
mind 	and 	were 	not 	openly 	seeking 	discussion 	that 	could 	bring
about 	a deviation 	from 	that 	fixed 	course 	of action. 	This,
combined 	with 	the 	rigid 	refusal 	to move 	the date of
implementation, 	leads 	to 	the 	conclusion 	that 	the 	University did
not 	meet with 	an open 	mind, 	but 	in 	form only.
While 	the 	Board 	itself 	has 	not 	yet 	defined 	the 	extent 	of
rights 	of 	non-exclusive 	representatives 	in 	discussion with 	the
employer, 	the purposes 	of HEERA cannot 	be 	fulfilled 	by mere
form.
22

It 	is 	therefore 	found 	that 	the University violated 	section
3571(b) 	by denying 	to SEIU rights 	guaranteed 	by 	the HEERA.
Denial 	of 	the 	right 	to represent also constitutes 	a denial 	of
the 	right 	to be 	represented 	and 	is 	therefore 	a derivative
violation of 	section 3571(a).
REMEDY
Section 	3563.3 	of 	the Act provides 	that:
The Board 	shall 	have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including, 	but not limited to, 	the
reinstatement 	of 	employees 	with 	or 	without
backpay, 	as will effectuate 	the policies of
this chapter.
Based 	on the 	facts 	in this case, 	it 	is appropriate 	to order
the 	University 	to 	cease 	and 	desist 	from denying 	to 	SEIU 	rights
guaranteed 	by HEERA, 	denying 	to members 	the 	right 	to
representation guaranteed 	by HEERA, 	to 	return 	to 	the 	status quo
ante 	by 	reinstating 	the 	4-day/10-hours 	per 	day 	work 	week
including 	therein 	a 	paid 	one-half 	hour 	lunch 	period 	and 	retain
that 	schedule 	until 	they 	have 	met 	with 	SEIU 	and 	provided 	the •
necessary 	information 	for 	meaningful 	discussion on 	how 	to
obtain 	an 	exception 	to 	the 	University's 	policy 	and 	retain 	that
work 	schedule 	until after discussions 	are complete or, 	if a
reasonable 	basis 	for 	exception 	to 	the policy 	is 	found, 	until
the 	request 	for 	exception 	to 	the 	policy has 	been 	granted 	or
denied.
23

Because 	the 	facts 	in 	this case 	reflect 	that 	SEIU has 	not
pursued 	its 	rights 	diligently, 	the 	order 	will 	require 	that 	if
SEIU does 	not 	arrange 	to meet 	with 	the 	University 	and 	complete
discussion 	on 	requesting 	an 	exception 	to 	the 	University's
policy 	within 	30 	workdays 	after 	this 	decision 	becomes 	final,
the 	University will 	have 	no 	further 	obligation 	to maintain 	the
status 	quo ante work 	schedule. 	While 	this proviso 	is 	unusual
in nature, 	it 	is 	necessary to assure good 	faith on 	the part of
both parties 	to 	this case.
It 	is 	also appropriate 	that 	the 	University be 	required 	to
post 	a 	notice 	incorporating 	the 	terms of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	University
indicating 	that 	it will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting will provide
employees 	with 	notice 	that 	the University has 	acted 	in 	an
unlawful manner 	and 	is 	being 	required 	to cease 	and 	desist 	from
this 	activity. 	It 	effectuates 	the purposes of 	the HEERA 	that
employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy and
announces 	the University's 	readiness 	to comply 	with 	the 	ordered
remedy. 	See 	Placerville Union 	School District 	(9/18/78) 	PERB
Decision No. 	69. 	In Pandol 	and Sons v. 	ALRB and UFW 	(1979) 	98
Cal.App.3d 	580, 	587, 	the California District Court of Appeal
approved a posting 	requirement. 	The U.S. 	Supreme Court
approved 	a 	similar 	posting 	requirement 	in NLRB v. 	Express
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
24

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law.
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to Government
Code 	section 	3563.3, 	it 	is hereby ordered 	that 	the 	Regents of
the University of California and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying 	to United Health Care Employees, 	SEIU
Local 660, 	AFL-CIO, 	CLC rights guaranteed by HEERA.
2. 	Denying 	to employees 	the 	right 	to representation.
B. 	Take 	the 	following 	affirmative 	action 	which 	is
necessary 	to effectuate 	the 	policies 	of 	the 	Higher 	Education
Employer-Employee 	Relations 	Act:
1. 	Return employees 	of 	the UCLA blood 	bank 	to 	the
status 	quo 	ante 	of 	a 	4~day/10-hours 	per 	day work 	week 	including
one-half 	hour 	paid 	lunch; 	and
2. 	On 	request, 	meet 	with 	the United 	Health 	Care
Employees, 	SEIU Local 660, AFL-CIO, CLC, 	regarding hours of
employment 	for 	employees 	of 	the 	UCLA blood 	bank, 	subject 	to 	the
proviso of part B. 	3. 	herein.
3. 	Retain 	the 	status 	quo ante 	for 	employees 	of 	the
UCLA blood 	bank 	until 	either:
(a) 	Completion of discussion of hours of
employment with 	United 	Health 	Care 	Employees, 	SEIU Local 	660
AFL-CIO, 	CLC, 	but 	not more 	than 30 workdays after 	this order
becomes final; or
25

(b) 	In the event 	that 	the parties 	arrive at 	a
reasonable 	basis 	for 	filing 	exceptions 	to 	the 	University's
policy prohibiting 	paid 	lunch 	periods, 	then 	file 	the 	request
for 	exception 	and 	retain 	the 	status 	quo 	ante work 	schedule
until 	the 	request 	for 	exceptions 	has 	been approved or 	denied.
4. 	Within 	five 	(5) 	workdays after 	the date of
service 	of 	a 	final 	decision 	in this matter, 	prepare and post
copies 	of 	the 	NOTICE TO EMPLOYEES 	attached 	as 	an 	appendix
hereto, 	signed 	by an 	authorized 	agent of 	the 	employer. 	Such
posting 	shall 	be maintained 	for 	at 	least 	thirty 	(30) 	workdays
at 	all work 	locations where 	notices 	to employees of 	the UCLA
blood 	bank 	customarily are 	placed. 	Such 	notice must 	be 	reduced
in 	size 	and 	reasonable 	steps 	shall 	be 	taken 	to ensure 	that 	they
are not defaced, altered or covered by any material;
3. 	Within 	twenty 	(20) 	workdays 	from service 	of 	the
final decision herein, 	notify the 	Los Angeles 	Regional 	Director
of 	the Public Employment Relations Board, 	in writing, 	of 	the
steps 	the 	employer 	has 	taken 	to comply with 	the 	terms 	of 	this
ORDER. 	Continue 	to 	report 	in writing 	to 	the 	regional 	director
periodically thereafter 	as directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently on 	the 	charging
party 	herein.
C. 	The 	allegation 	that 	the 	Regents 	of 	the University of
California violated 	section 	3571(a) 	because 	of 	comments 	by
Carma 	Rippee 	is DISMISSED.
26

Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed 	Decision 	and Order 	shall
become 	final on August 19, 	1981, 	unless a party files a timely
statement of exceptions within 	twenty 	(20) 	calendar 	days
following 	the date 	of 	service of 	the decision. 	The 	statement
of 	exceptions 	and 	supporting 	brief must 	be 	actually 	received 	by
the Executive Assistant 	to 	the Board 	at 	the 	headquarters 	office
in Sacramento before 	the close of business 	(5:00 	p.m.) 	on
August 19, 	1981, 	in order 	to be timely filed. 	(See California
Administrative Code, 	title 8, 	part 	III, 	section 32135.) 	Any
statement 	of 	exceptions 	and 	supporting 	brief must 	be 	served
concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the Board
itself. 	(See California Administrative Code, 	title 8
part 	III, 	sections 	32300 	and 	32305 	as 	amended.)
Dated: 	July 30, 	1981
Sharrel J. 	Wyatt
Hearing 	Officer
27
,