Regents of the University of California (Bawal, et al.) (PERB 1354H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
BHANU BAWAL,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	LA-CE-476-H
PERB Decision No. 	1354-H
September 30, 	1999
HENRY HAO, 	SALLY JO MICHAEL,
LOURDES INCHAUSPI, 	ALLEN FUKUCHI,
et al.,
Charging Parties,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case Nos. 	LA-CE-478-H,
LA-CE-479-H, 	LA-CE-480-H
and 	LA-CE-481-H
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by James
Rutkowski, 	Attorney, 	for Bhanu Bawal, 	Henry Hao, 	Sally Jo
Michael, 	Lourdes Inchauspi, Allen Fukuchi, 	et al.; Atkinson,
Andelson, 	Loya, 	Ruud & Romo by James C. 	Romo, 	Attorney, 	for
Regents 	of 	the University of 	California.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	These consolidated cases 	come before the
Public 	Employment 	Relations 	Board 	(Board) 	on exceptions 	filed by
Bhanu Bawal, 	et al. 	(Bawal, 	et al.) 	and the Regents of the
University of 	California 	(University) 	to an administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached). 	The ALJ found that
the University violated section 3571(a) 	of 	the Higher Education
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Employer-Employee Relations Act 	(HEERA)1 when it 	failed to meet
and 	discuss 	a 	layoff 	and 	rehire 	program 	in good 	faith with
University 	Professional 	and Technical 	Employees.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the 	original 	and amended unfair practice 	charge, 	the
complaint, 	the proposed decision and the 	filings 	of 	the parties.
The 	Board affirms 	the ALJ's 	decision 	in accordance with 	the
following 	discussion.
DISCUSSION
All 	parties 	filed exceptions 	to 	the proposed decision. 	The
University 	challenges 	the ALJ's 	factual 	and 	legal 	conclusions 	and
the remedy, 	while Bawal, 	et al. 	argues that the remedy is
insufficient.
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.
'HEERA 	is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571 provides, 	in pertinent
part, that:
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.
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The University offers 	exceptions 	to 	the ALJ's 	finding of
a violation 	concerning 	the 	alleged 	refusal 	to provide
information. 	This 	Board 	finds 	this 	conclusion of 	law to be 	free
of prejudicial 	error and hereby adopts 	it 	as 	the decision of 	the
Board 	itself.
The 	Board 	finds 	the ALJ's 	conclusions 	of 	law regarding 	the
retaliation allegations 	to be 	free 	of prejudicial 	error and
hereby adopts 	them as 	the 	decision of 	the 	Board 	itself.
The Board finds 	the ALJ's 	conclusions 	of 	law regarding 	the
meet 	and discuss 	allegations 	to be 	free 	of prejudicial 	error and
hereby adopts 	them as 	the 	decision of 	the 	Board 	itself.
We wish 	to 	emphasize 	that 	the University has 	no duty 	to meet
and discuss 	its decision to reorganize 	the Department, 	including
the decision to 	effectuate 	the 	reorganization via 	layoff, 	with
the nonexclusive 	representative. 	However, 	the University does
have an obligation to meet 	and discuss 	effects 	of 	this 	decision
on 	terms 	and 	conditions 	of 	employment 	with 	the 	nonexclusive
representative. 	(See proposed d e c , 	pp. 	45-46.)
It 	has 	been determined 	that 	the University 	failed 	to meet
this 	obligation. 	Considering 	the gravity of 	this 	conduct and the
impact 	on numerous 	employees, 	we 	find that 	the 	relief 	ordered by
the ALJ is 	appropriate 	to 	effectuate 	the purposes 	of 	HEERA.
ORDER
Upon the 	findings 	of 	fact and conclusions 	of 	law, 	and the
entire record in this 	case, 	the Board finds 	that 	the Regents of
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the University of 	California 	(University) 	violated the Higher
Education Employer-Employee Relations Act 	(HEERA), 	Government
Code 	section 3571(a), 	by interfering with the 	right 	of 	employees
to be 	represented 	on matters 	within 	the 	scope 	of 	representation,
by 	failing 	to provide 	reasonable 	time 	and 	opportunity 	for meeting
and discussing 	a 	layoff 	and 	rehire 	program.
Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED 	that
the University, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	rights 	of 	employees 	to be
represented on matters 	within 	the 	scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HEERA:
1. 	Make 	"whole" 	any charging parties adversely
affected by 	the 	layoff 	and 	rehire 	process 	by paying 	them backpay
as 	if 	the 	layoff 	and rehire process 	had occurred 30 	days 	later
than it 	did. 	This backpay shall 	include 	interest at 	the 	rate of
7 	percent 	per annum.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to appeal, 	post at all work
locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice attached as an Appendix hereto, 	signed by an
authorized agent 	of 	the 	employer. 	Such posting 	shall be
maintained for a period of thirty 	(3 0) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to 	insure 	that 	this Notice 	is 	not
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reduced 	in size, 	altered, 	defaced or covered by any other
material.
3. 	Written notification of 	the actions 	taken 	to
comply with this 	Order 	shall 	be made 	to 	the 	San Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with 	the 	director's 	instructions.
Member Dyer 	joined 	in this 	Decision.
Chairman Caffrey's 	concurrence 	and dissent begins 	on page 	6.
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CAFFREY, 	Chairman, 	concurring and dissenting: 	I 	concur in
the 	finding 	by 	the 	majority and 	the 	administrative 	law 	judge
(ALJ) 	that Bhanu Bawal, 	et al. 	have not demonstrated by a
preponderance of 	the evidence 	that 	the Regents 	of 	the University
of 	California 	(University) 	unlawfully discriminated against 	them
in violation 	of 	the 	Higher Education Employer-Employee Relations
Act 	(HEERA) 	by laying 	them off 	or by 	failing 	to 	rehire 	them. 	I
also 	concur 	in 	the 	finding 	that 	the University did not 	unlawfully
retaliate against Bhanu Bawal.
I 	dissent 	from the 	finding 	that 	the 	University 	interfered
with 	the 	right 	of 	employees 	to be 	represented 	on matters 	within
the 	scope 	of 	representation 	in violation of 	HEERA section 	3571(a)
by 	failing 	to 	provide 	reasonable 	time 	and 	opportunity 	for meeting
and discussing 	the 	effects 	of 	the University's 	decision to 	lay
off 	employees. 	Therefore, 	I would dismiss 	the unfair practice
charges 	and 	complaints 	in 	their entirety.
DISCUSSION
A crucial 	element 	in the 	disposition of 	this 	case 	is 	the
fact 	that 	it 	involves a nonexclusive 	representative. 	Employees
have 	the 	right 	to be 	represented by a 	nonexclusive
representative, 	but 	the 	employer's 	duty to meet and discuss with
a nonexclusive 	representative 	is 	far different 	from its 	duty 	to
negotiate with an exclusive 	representative. 	The duty to meet 	and
discuss does not 	include 	the duty to negotiate, 	and does not
require 	discussions 	to 	continue until 	agreement 	or 	impasse 	has
been reached. 	In some circumstances, 	providing the opportunity
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to present 	alternatives 	and 	supporting 	rationale 	satisfies 	the
employer's meet 	and discuss 	obligation 	to a nonexclusive
representative. 	Whether an employer has breached 	its meet 	and
discuss 	obligation 	is 	determined on a 	case-by-case 	basis.
(Regents 	of 	the University of 	California 	(1984) 	PERB Decision
No. 	470-H; 	Regents 	of the University of California v. 	PERB 	(1985)
168 Cal.App.3d 937 	[214 Cal.Rptr. 	698]; 	Regents of the University
of California 	(1990) 	PERB Decision No. 	829-H.) 	In short, 	the
duty 	to meet 	and 	discuss 	with a 	nonexclusive 	representative
represents 	a 	substantially 	lower obligation 	than 	the 	duty 	to meet
and 	confer with an 	exclusive 	representative.
It 	is 	also 	important 	to note 	that 	this 	case 	involves 	the
obligation to meet 	and discuss 	the 	effects 	of 	a management
decision which is 	outside of 	the 	scope 	of 	representation, 	the
decision 	to 	lay off 	employees. 	(Newman-Crows 	Landing Unified
School District 	(1982) 	PERB Decision No. 	223; 	State of California
(Department of 	Forestry and Fire Protection) 	(1993) 	PERB Decision
No. 	999-S.) 	The Board has held that, 	in an exclusive
representation environment, 	the 	employer may implement 	its 	layoff
decision prior 	to 	completing 	effects 	bargaining. 	(Compton
Community College District 	(1989) 	PERB Decision No. 	720.) 	Also,
an 	exclusive 	representative's 	bargaining proposals 	relating 	to
the 	effects 	of 	layoff must 	not 	interfere with management's
prerogative 	to determine 	the 	timing of 	layoffs. 	(San Mateo 	City
School District 	(1984) 	PERB Decision No. 	383.) 	It 	is logical 	to
conclude, 	therefore, 	that 	in a nonexclusive representative
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environment 	the 	employer 	is 	under no 	obligation 	to 	complete 	the
meet 	and discuss 	process 	concerning 	the 	effects 	of 	layoff 	prior
to 	implementing the 	layoffs, 	or to entertain effects 	discussions
which interfere with the 	timing of 	the 	layoffs.
In this 	case, 	the University announced its decision to lay
off 	employees on December 19, 	1996. 	The University sent 	layoff
notices 	to some employees on January 7, 	1997, 	and to others 	on
January 17, 	1997, 	and January 31, 	1997. 	All employees were given
60 	days notice as part of 	the layoff announcement. 	During the
period between 	the 	announcement 	of 	the 	layoff 	decision and 	the
effective date 	of 	the 	first 	layoffs, 	a period of more 	than 75
days, 	the University met 	and discussed with 	the University
Professional 	and Technical 	Employees 	(UPTE), 	the nonexclusive
representative, 	on at least four occasions 	- 	January 2, 	January
16, 	January 28 and March 7, 	1997.
Based on these 	facts, 	the majority and the ALJ conclude
that, 	while 	the University engaged 	in the meet 	and discuss
process 	in good faith, 	it 	"failed to provide reasonable 	time 	for
meeting and discussing" 	before 	implementing layoffs. 	In my view,
this 	result misconstrues 	the 	employer's 	obligation to meet 	and
discuss with a nonexclusive 	representative, 	and 	ignores 	the
employer's 	right 	to 	implement 	layoffs 	while 	discussing 	their
effects. 	The University 	fulfilled 	its 	HEERA obligation by
engaging 	in multiple, 	good faith meet 	and discuss 	sessions 	with
UPTE 	over a period of more 	than two months before 	the
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implementation of 	layoffs. 	Consequently, 	I would dismiss 	the
allegation that 	it 	failed 	to do 	so.
I 	must 	also 	comment 	on 	the 	unprecedented backpay 	remedy
ordered by the majority 	in this 	case. 	I know of no 	case 	in which
an 	employer has 	been 	ordered 	to pay backpay 	to 	employees 	for
failure 	to meet 	and discuss with a nonexclusive 	representative.
There 	are 	no 	cases 	in which 	such a 	remedy has 	been 	ordered when
the 	conduct 	involved 	failure 	to meet 	and discuss 	with a
nonexclusive 	representative 	the 	effects 	of 	a management 	decision
to 	lay off 	employees, 	a 	subject 	outside 	the 	scope 	of
representation.
Regents 	of 	the University of California 	(Davis. 	Los Angeles.
Santa Barbara and San Diego) 	(1990) 	PERB Decision No. 	842-H, 	a
case 	cited by the ALJ here, 	is particularly 	instructive 	on the
subject 	of 	the 	appropriate 	remedy 	in a nonexclusive
representative environment. 	In that 	case, 	the Board found that
the 	employer unlawfully altered 	the 	timing 	of 	a merit 	salary
program without 	providing 	the 	nonexclusive 	representative 	with
adequate 	notice 	or 	the opportunity to meet 	and discuss 	over 	the
change. 	Even 	though the 	case 	involved a 	change 	in employee
wages, 	obviously a 	subject within the 	scope of 	representation,
the 	Board 	found 	that 	ordering backpay 	in a 	nonexclusive
representative 	environment 	was 	speculative 	and 	inappropriate,
stating:
The 	fact 	that 	the University's 	"meet 	and
discuss" 	obligation to the nonexclusive
representative 	includes 	neither a 	requirement
that 	the parties 	reach agreement 	nor 	continue
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to meet until 	impasse, 	renders 	the outcome of
any 	such meeting 	even more 	speculative.
While 	the 	ordinary 	remedy 	in unilateral
change 	cases 	is 	restoration of 	the status 	quo
ante, 	including back pay and interest, 	this
Board 	has 	denied back pay where 	the
entitlement 	thereto 	is 	speculative.
Certainly, 	this 	rationale has 	even greater application to 	the
instant 	nonexclusive 	representative 	case 	in which 	the 	employer's
obligation was 	to meet and discuss 	the 	effects 	of 	a decision
which was 	outside 	the scope 	of 	representation, 	and which lawfully
could be 	implemented prior 	to 	the 	completion of 	discussions.
Under these 	circumstances, 	the majority's backpay order is not
only speculative and unprecedented, 	it 	is 	a 	clearly 	inappropriate
use 	of 	the Board's 	remedial 	authority.
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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 Nos. 	LA-CE-476-H,
LA-CE-478-H, 	LA-CE-479-H, 	LA-CE-480-H and LA-CE-481-H, 	Bhanu Bawal.
et al. 	v. 	Regents of The University of California, 	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 	(HEERA), 	Government Code
section 3571(a), 	when it 	interfered with the right of employees 	to
be 	represented 	on matters 	within 	the 	scope 	of 	representation and by
failing 	to provide 	reasonable 	time 	and 	opportunity 	for meeting 	and
discussing 	a 	layoff 	and 	rehire 	program.
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post 	this
Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Interfering with the 	rights 	of 	employees 	to be
represented on matters within 	the 	scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HEERA:
1. 	Make 	"whole" 	any charging parties 	adversely affected
by 	the 	layoff 	and 	rehire process 	by paying 	them backpay as 	if 	the
layoff 	and rehire process 	had occurred 	30 	days 	later than 	it 	did.
This backpay shall 	include 	interest 	at 	the 	rate 	of 	7 percent 	per
annum.
Dated: 	Regents 	of 	the 	University 	of
California
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND MUST
NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BHANU BAWAL,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-476-H
HENRY HAO, 	SALLY JO MICHAEL,
LOURDES INCHAUSPI, 	ALAN FUKUCHI,
et al.,
Charging 	Parties,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case Nos. 	LA-CE-478-H
LA-CE-479-H
LA-CE-480-H
LA-CE-481-H
PROPOSED 	DECISION
(8/14/98)
Appearances: 	University Professional 	and Technical 	Employees 	by
Cliff Fried, 	Vice President, 	and Van Bourg, 	Weinberg, 	Roger &
Rosenfeld by James Rutkowski, 	Attorney, 	for Bhanu Bawal, 	Henry
Hao, 	Sally Jo Michael, 	Lourdes Inchauspi, 	Alan Fukuchi, 	et al.;
Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by James C. 	Romo, 	Tina L.
Kannarr and Aaron V. 	O'Donnell, 	Attorneys, 	for Regents of the
University of 	California.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In these 	consolidated cases, 	higher education employees
allege 	their 	employer 	failed to meet 	and discuss 	in good 	faith
and 	also 	retaliated 	against 	them 	for protected 	activity.
Bhanu Bawal 	(Bawal) 	filed an unfair practice 	charge 	against
the Regents 	of 	the University of 	California 	(University) 	on
January 30, 	1997. 	The Office of the General 	Counsel of the
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Public Employment 	Relations Board 	(PERB) 	issued a 	complaint 	on
April 	18, 	1997, 	alleging the University retaliated against Bawal
by 	issuing her a disciplinary reduction 	in 	salary. 	The
University filed an answer on May 27, 	1997, 	denying any
retaliation. 	On May 28 	and July 10, 	1997, 	PERB held informal
settlement 	conferences with the parties, 	but 	the matter was not
resolved.
On February 10, 	1997, 	the other charging parties 	filed
unfair practice 	charges 	against 	the University. 	PERB 	issued a
complaint based on these 	charges on March 14, 	1997. 	The
complaint 	alleged the University 	failed 	to meet 	and discuss 	in
good 	faith 	in 	connection with 	a 	departmental 	restructuring by
(among other things) 	failing to provide adequate notice, 	failing
to provide a reasonable 	amount 	of 	time 	for discussion, 	and
failing to provide 	relevant 	and necessary 	information. 	The
complaint 	also 	alleged the 	University 	retaliated 	against 	charging
parties both collectively, 	by laying all 	of 	them off, 	and
individually, 	by failing to rehire 	some of 	them. 	The University
filed an answer on April 	7, 	1997, 	and an amended answer on May 8,
1997, 	denying any retaliation and any failure 	to meet 	and discuss
in good 	faith.
PERB 	held an 	informal 	settlement 	conference 	on March 	19,
1997, 	but 	the matter was not resolved. 	PERB held a 	formal
hearing on May 21-23, 	August 	4-6, 	September 2-4 	and 9-10, 	and
October 6-7, 	14-15 	and 20, 	1997; 	the 	first three days of hearing
were 	conducted by Administrative 	Law Judge W. 	Jean Thomas,
N
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shortly before 	her untimely death 	from a 	heart 	attack. 	On
September 9, 	1997, 	Bawal's 	individual 	case was consolidated by
stipulation with the 	other cases. 	With the 	filing of post-
hearing briefs on March 2, 	1998, 	the 	consolidated cases were
submitted 	for 	decision.
FINDINGS 	OF 	FACT
Introduction
The 	University 	is 	a higher 	education 	employer under 	the
Higher Education Employer-Employee Relations Act 	(HEERA).1
Charging parties 	are 	higher 	education 	employees 	under HEERA.
Charging parties 	were 	employed 	in 	the 	Department 	of
Pathology and Laboratory Medicine 	(Department) 	of 	the
University's UCLA Medical 	Enterprise. 	They were part 	of 	the
University's 	health care professionals bargaining unit, 	known as
the HX unit. 	Until 	September 	1997, 	the HX unit 	had no certified
organization exclusively representing the 	employees, 	but 	charging
parties 	were 	members 	of 	the 	University Professional 	and Technical
Employees 	(UPTE) 	and had designated UPTE 	as 	their representative.
The 	Department 	is 	organized 	into various 	administrative
units. 	Before 	1997, 	the employees 	in each of these units were
organized in the 	following hierarchy, 	from top 	to bottom:
managers, 	senior supervisors, 	supervisors, 	senior specialists,
specialists, 	clinical laboratory technologists 	(CLTs), 	and
HEERA	1HEERA is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Unless otherwise 	indicated, 	all 	statutory references 	are 	to the
Government 	Code.
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hospital 	laboratory technicians 	(HLTs). 	Only senior specialists,
specialists 	and CLTs were 	in the HX bargaining unit.
Charging party Henry Hao 	(Hao) 	was 	a 	specialist 	who 	had
worked for the 	Department 	for twenty years. 	In July 1996 	he
received 	a 	performance 	appraisal 	indicating 	his 	performance
"Exceeds 	Expectations." 	His 	supervisor noted he was 	"an
exceptionally dedicated, 	flexible, 	and reliable employee."
On December 19, 	1996, 	the week before Christmas, 	the
University 	issued Hao 	and 	all 	other 	clinical 	laboratory 	employees
a memo 	on 	the 	subject 	"Department 	of 	Pathology and Laboratory
Medicine 	Restructuring." 	The memo 	stated 	in part:
As you are all 	aware, 	the Department of
Pathology and 	Laboratory Medicine 	has 	been
undergoing 	a major 	restructuring 	to
streamline 	operations 	in an 	effort 	to 	improve
financial 	viability while 	maintaining
clinical 	excellence 	and quality service. 	In
the preliminary phase 	of 	this 	reorganization,
we 	defined 	new administrative 	units 	and
engaged 	in 	a 	selection process 	for unit
M a n a g e r s . . . .
We 	are 	now ready 	to proceed with the 	next
phase 	of 	our transformation 	to 	the 	new model
of 	service delivery. 	I 	have been working for
the 	last 	three months with the 	unit Managers
to 	design a 	supervisory 	framework 	for 	each
unit, 	with an emphasis on our organization's
core 	competencies 	as well 	as 	the 	technical
and 	service 	requirements 	for 	each of 	the
units. 	We have developed this 	supervisory
framework; 	new job descriptions 	and unit-
specific 	requirements 	and 	selection criteria
are 	currently being 	finalized.
This 	letter 	is 	to 	further clarify the
direction we 	intend to 	take 	over 	the 	next 	few
months 	as we complete 	the next phases 	in the
implementation 	of 	our new 	organizational
structure.
4
4

As with the management 	selection process, 	and
in 	light 	of 	the 	dismantling of 	the 	former
department 	organization, 	existing Senior
Supervisor, 	Supervisor, 	Senior Specialists
and 	Specialist 	positions 	would be 	eliminated
and each of 	the 	individuals 	in the affected
titles would receive 	a 	layoff 	letter. 	This
is 	expected to occur 	in the 	first 	week of
January, 	with an estimated effective 	date 	of
60 days. 	At the same time, 	newly defined
positions 	in the 	categories 	of 	Senior
Supervisor 	and 	Senior 	Specialist 	would be
opened 	for 	recruitment.
Each of 	the 	employees 	who 	receive 	layoff
letters will 	be 	eligible 	to 	exercise
preferential 	rehire 	rights 	for the vacant
positions 	(subject 	to 	the provisions 	for
preferential rehire), 	before any outside
recruiting occurs. 	. 	. 	. 	First consideration
is 	for those 	candidates 	who 	are 	eligible 	and
express preference 	for the vacant 	positions,
subject 	to 	the 	candidates meeting the minimum
qualifications 	for 	those positions.
Following this 	selection, 	any remaining
vacancies 	would be 	posted 	for 	open
recruitment. 	I 	am hopeful 	that we can
complete 	the 	selection process 	and fill 	the
available positions 	by the 	end of 	January.
Following this phase of 	the process, 	we
intend to use 	the 	same 	approach 	for the
Clinical 	Laboratory Technologist 	(CLT)
positions, 	beginning in early February.
Thus, 	each of the 	individuals 	in the affected
title would receive 	a 	layoff 	letter.
Candidates 	with preferential 	rehire 	rights,
would, 	of course, 	be considered prior to
posting and open 	recruitment. 	Other 	clinical
support positions will 	be 	considered, 	and
additional 	information provided 	to 	you
regarding these positions, 	at a later time.
Although the 	restructuring effort 	was public 	knowledge, 	the
December 	19 	memo was 	the 	first 	time Hao 	and the 	other employees
were 	notified they would all 	be 	laid off 	and would need 	to 	apply
for 	any 	continued 	employment.
unn
	5

Nineteen days later, 	on January 7, 	1997, 	the University
issued Hao a layoff 	letter, 	stating 	in part:
I 	regret 	to 	inform you 	that 	effective 	March
9, 	1997, 	you will be 	indefinitely laid off
from your position 	as 	a 	Clinical 	Laboratory
Technologist 	Specialist 	in the 	Department 	of
Pathology and Laboratory Medicine. 	The
layoff 	is 	due 	to 	reorganization of 	the
Department 	necessitated 	by 	expense 	reduction
requirements 	and 	the 	many 	and 	rapid 	changes
occurring 	in the 	healthcare market.
On the 	same 	day, 	the University issued similar 	letters 	to 	all
other specialists, 	senior specialists, 	supervisors and senior
supervisors. 	Twenty-four days later, 	on January 31, 	1997, 	the
University issued 	similar 	letters 	to 	all 	CLTs.
On January 17, 	1997, 	the University posted the 	senior
specialist 	and 	senior 	supervisor positions 	for which 	employees
facing 	layoff 	could 	apply. 	Hao 	apparently did not 	apply 	for
these positions, 	which were 	higher than his 	specialist position.
On February 7, 	1997, 	the University posted the CLT positions.
Hao 	did apply 	for 	CLT positions 	in 	three 	different 	administrative
units, 	but he was not 	selected for any of them. 	In one case he
was 	told 	"he met 	the minimum qualifications 	for a 	few of 	the 	open
positions" 	but 	"other more qualified preference 	applicants" 	were
selected. 	In another case he was 	similarly told a candidate with
"more 	applicable 	qualifications 	and skills" 	had been 	selected.
In the 	third case 	he was 	simply told he was not 	selected.
Having 	failed to obtain a 	CLT position, 	Hao 	applied 	for and
obtained an HLT position. 	His pay dropped over 3 0 percent, 	from
$28.31 	hourly to 	$18.33 	hourly; 	the personnel 	system document
6
6

described it 	as 	"due to Demotion." 	Other employees, 	including
other longtime 	employees, 	also suffered adverse 	consequences. 	As
of April 	3, 	1997, 	some 43 	of the 220 Department employees 	in the
HX unit 	were 	reduced to HLTs, 	were 	reduced 	from career positions
to casual 	(limited-term) 	positions, 	were laid off entirely, 	or
chose 	retirement 	over layoff 	(in some 	cases, 	in order to preserve
medical benefits).
Origins 	of 	Restructuring
The 	restructuring that 	resulted 	in 	adverse 	consequences 	for
Hao 	and other employees 	apparently began with a 	report 	the
Department 	commissioned in 	1995. 	The 	report noted, 	"Both the
department 	leadership 	and 	the 	hospital 	administration 	agree 	on
the 	need 	to 	consolidate 	laboratory 	operations 	and 	reduce
personnel 	expenses." 	The 	report 	criticized the 	organization of
the 	laboratories 	as 	resulting 	in 	"duplication of 	some 	functions"
and 	as 	including 	"an 	excessive 	number of 	senior 	supervisors 	and
managers."
The 	author of 	the report 	drafted a possible 	new
organizational 	chart 	for 	the Department. 	He 	also drafted a
proposed 	timeline 	for 	implementing 	a 	restructuring of 	the
Department, 	with an effective date of July 1, 	1996. 	The timeline
apparently anticipated some 	layoffs 	of 	specialists, 	supervisors,
senior supervisors 	and 	"administrators" 	but 	not 	of 	CLTs.
On January 16, 	1996, 	Judith Stanton 	(Stanton) 	became the new
chief 	administrative 	officer 	(CAO) 	of 	the Department 	and
undertook to 	carry out the 	restructuring. 	In February 1996, 	she
77

drafted her own 	restructuring proposal 	and a 	timeline 	for 	its
implementation, 	still with an effective date of July 1, 	1996.
Neither 	the proposal 	nor 	the 	timeline mentioned 	layoffs.
When she became 	CAO, 	Stanton also became aware 	of 	cost
reduction 	targets 	that 	had been established 	for 	the 	UCLA Medical
Enterprise. 	As part of 	$25.3 	million in total 	reductions, 	the
Department was 	asked to reduce 	its 	costs by at 	least 	$4 	million.
The 	cost 	reductions 	were 	apparently dictated not 	by a 	financial
crisis 	but 	rather by a perceived need 	to 	remain 	competitive 	in
the healthcare market.
On March 12, 	1996, 	a restructuring committee was appointed,
and by May 9, 	1996, 	the 	committee 	had produced a new organization
chart 	for the Department. 	In general, 	the Department was to go
from 	a 	structure 	with 	administrative 	units 	based on 	scientific
disciplines, 	such as chemistry and hematology, 	to one with units
based on 	service 	level, 	instrumentation and methodology, 	such as
High Volume Testing and Special Testing. 	Thus, 	for example, 	high
volume 	chemistry and high volume 	hematology would become 	part 	of
a High Volume 	Testing unit, 	along with the 	anesthesiology
laboratory, 	which had been a separate unit. 	Meanwhile, 	special
chemistry and 	special 	hematology would become part 	of 	a 	Special
Testing unit, 	along with cytogenetics and amniocentesis, 	which
had been 	in a separate unit. 	Histocompatibility, 	which had been
part 	of 	the Hematology unit, 	would become part 	of 	a Transfusion
Medicine unit, 	along with the previously separate Blood Bank
unit. 	Other aspects 	of 	chemistry and hematology would become
8

part 	of 	a Brentwood unit, 	along with most 	of 	the old Microbiology
unit. 	The 	new organization chart 	was 	made public 	throughout 	the
Department 	around May 9, 	1996.
Origins 	of 	UPTE's 	Involvement
Although not 	then certified as 	their 	exclusive
representative, 	UPTE had been representing some of 	the HX
employees 	in the Department 	since 	1994. 	UPTE had represented
employees 	in meeting and discussing various 	issues 	and had
assisted employees 	in 	filing unfair practice 	charges, 	which UPTE
later helped to 	settle. 	CLT Lourdes 	Inchauspi 	(Inchauspi) 	was
widely recognized 	in 	the 	Department 	as 	an UPTE 	steward.
UCLA Medical 	Enterprise 	labor 	relations 	manager Maure
Gardner 	(Gardner) 	had a practice of 	giving UPTE as well 	as
employees notice 	of 	decisions 	affecting the 	employees. 	Notice 	to
UPTE was 	normally 	simultaneous 	with or 	just 	after notice 	to 	the
employees. 	Typically Gardner gave 	3 0 	days notice prior to
implementing a 	change.
In April 	1996, 	UPTE began planning a 	campaign to become 	the
exclusive 	representative 	for the HX unit. 	It 	kicked off 	the
campaign 	in 	late 	June 	or early July with a mailing to 	all 	HX
employees with the theme, 	"We can save 	jobs 	& save 	the quality of
health care." 	UPTE Vice 	President 	Cliff 	Fried 	(Fried) 	routinely
gave Gardner copies 	of 	this 	and other campaign 	literature. 	The
mailing was 	also 	distributed and posted 	in 	the 	Department.
Supervisors 	and managers were 	aware of 	the 	campaign; 	in October
1996 	one 	manager drafted 	and posted 	a 	"Supervisory Update"
99

explaining the 	election process. 	An UPTE 	letter dated
October 18, 	1996, 	which was both mailed and posted, 	listed the
names of 	five CLTs, 	including Inchauspi, 	as 	"your friends 	in
UPTE." 	An UPTE letter dated November 4, 	1996, 	which was 	also
both mailed and posted, 	listed the 	same 	five names, 	along with
those 	of 	three 	other CLTs 	in the Department.
In October or November of 	1996, 	Fried told Gardner UPTE was
probably going 	to 	file 	cards 	calling 	for an election 	in January
or February, 	1997. 	UPTE ultimately filed the 	cards on
February 10, 	1997, 	leading to an election in August 	1997. 	When
the ballots 	were 	counted 	in September 	1997 	(during 	the 	hearing 	in
this matter), 	UPTE won the right to be the exclusive
representative 	for the HX unit.
Back 	in May 1996, 	UPTE became 	aware 	that 	a new organization
chart 	for the 	Department 	had been posted. 	In a 	letter 	to Gardner
dated May 10, 	1996, 	Fried requested that 	the University meet 	and
discuss 	the 	reorganization plans. 	Fried 	requested various
information about 	the changes, 	including their impact 	on
seniority.
Meeting 	and Discussing 	in 	1996
Fried 	testified 	there 	had been vague 	discussions 	about 	a
possible 	reorganization as 	early as 	1995. 	He 	further testified
the 	subject 	came up at a meeting in February 1996, 	at which
Gardner 	said 	that 	if 	there 	were 	layoffs 	they would be 	by
seniority and would 	"follow the book," 	that 	is, 	the University's
Personnel 	Policies 	for Staff Members 	(PPSM).
10

Policy 	60 	of 	the 	PPSM addressed the 	subject 	of 	layoff 	and
reduction 	in 	time 	for professional 	and 	support 	staff 	career
positions. 	It 	stated in part:
E. 	INDEFINITE 	LAYOFF AND 	INDEFINITE REDUCTION 	IN
TIME
Indefinite 	layoff 	and 	indefinite 	reduction 	in
time 	are 	effected by department 	and by class,
in inverse order of 	seniority, 	except 	that 	an
employee 	can be 	retained 	irrespective 	of
seniority 	if 	that 	employee 	possesses 	special
skills, 	knowledge, 	or abilities that are not
possessed by other 	employees 	in 	the 	same
class, 	and which are necessary to maintain
the operations 	of 	the 	department.
Seniority 	shall 	be 	calculated by 	full-time-
equivalent months 	(or hours) 	of University
service 	in any job 	classification or 	title.
Employment 	prior 	to 	a break 	in 	service 	shall
not be counted. 	When employees 	have 	the 	same
number of 	full-time-equivalent 	months 	(or
hours), 	the employee with the most recent
date 	of 	appointment 	shall 	be 	laid off 	first.
An employee will 	receive 	at 	least 	30 	calendar
days' 	advance written notice prior to
indefinite 	layoff or reduction in time, 	or
shall 	receive pay in 	lieu of 	notice.
F. 	REEMPLOYMENT 	FROM 	INDEFINITE 	LAYOFF
1. 	Right to Recall. 	. 	. 	.
2. 	Preference 	for Reemployment. 	A regular
status 	employee 	who 	has 	been 	separated or
given written notice 	of 	indefinite 	layoff 	or
reduction 	in time 	shall 	have preference 	for
any active 	and vacant 	career position 	for 	two
months prior to 	the 	layoff 	date when the
position is at the same campus, 	the same
salary level 	or lower, 	and at 	the 	same or
lesser percentage of 	time, 	provided the
employee 	is 	qualified for the position. 	When
written notice 	of 	indefinite 	layoff 	or
reduction 	in time 	is 	given more 	than two
months prior to the 	layoff date, 	the
Chancellor may 	authorize 	that 	preference 	for
11

reemployment 	begin with 	the 	date 	of 	layoff
notice.
A regular 	status 	employee 	with preference 	for
reemployment 	or 	transfer may be 	rejected only
if 	the 	employee 	lacks 	qualifications 	required
of 	the position. 	Reasons 	for non-selection
shall 	be provided as 	required 	in 	local
procedures.
There 	is 	no 	evidence 	Policy 	60 	had previously been 	interpreted as
authorizing the University to 	lay off 	all 	the 	employees 	in a
department 	and make 	them all 	reapply for employment, 	without
regard 	for 	their 	seniority.
In May and July of 	1996, 	UPTE participated in meet 	and
discuss 	sessions 	focusing on 	issues 	in 	the 	Toxicology 	section of
the 	Department's 	Chemistry unit. 	Gardner did not 	attend 	these
sessions, 	but 	Fried testified there was 	some discussion 	in May
about 	reorganization of 	the management 	level 	of 	the 	Department.
The 	first 	meet 	and discuss 	session actually 	focusing 	on
reorganization was held on August 	19, 	1996, 	with Fried and
Inchauspi 	representing 	employees 	and 	Gardner 	and 	Stanton
representing 	the 	University. 	The 	University shared 	some 	budget
information, 	and Stanton reported on the 	selection of managers
for the 	restructured units. 	The existing managers, 	who were not
covered by the 	PPSM, 	had been 	invited to 	apply for the 	newly-
defined management positions. 	There would be 	two 	fewer
positions, 	which ultimately meant 	two managers would receive
notices 	of 	intent 	to 	terminate 	their appointments.
With regard to 	layoffs 	in the HX unit, 	Fried testified
Gardner 	again 	said 	any 	layoffs 	would be 	by 	seniority and 	"by 	the
12

book" 	(the PPSM). 	Inchauspi 	similarly remembered such a
statement 	by Gardner, 	although she was unsure of when in 	1996
Gardner made 	it. 	Gardner acknowledged 	she 	said 	"we'd have 	to
review seniority" 	in connection with possible 	layoffs, 	and her
notes 	confirm 	she mentioned 	"review of 	seniority" 	in 	that
context.
Stanton 	explained that 	although 	the 	Department 	was 	not
running a deficit 	it 	still 	had $2 	million to go 	in reaching 	its
cost-reduction target. 	When asked 	if 	specialist 	positions would
be 	eliminated, 	Stanton said the University had not 	made plans 	to
eliminate 	any level 	of 	the 	career 	ladder.
On September 9, 	1996, 	the chosen managers assumed their
newly-defined positions, 	and they were 	asked to make
recommendations 	for the 	staffing of 	the 	newly-defined units. 	On
October 7, 	1996, 	manager Lynne Garcia 	(Garcia) 	sent Stanton a
memo based on 	"discussions 	at 	the 	meeting on 	Friday." 	Attached
to 	the memo was 	a document 	headed 	"Personnel 	Issues 	Related to
Changes 	in Job Descriptions, 	Reduction 	in Unit 	Personnel 	and
Possible Reclassifications 	(Department 	Reorganization)." 	The
document 	stated 	in 	full:
1. 	Some unit 	changes within 	the 	laboratory will
be more 	comprehensive 	than others:
A. 	Example 	(extensive changes): 	Numbers of
employees, 	job classifications, 	job
descriptions 	will 	change
B. 	Example 	(minor changes): 	Minor
revisions 	in job descriptions, 	job
classifications; 	no change 	in personnel
numbers
13

2. 	Confirmation of personnel 	in new slots will
need to begin with Senior 	Supervisors,
Supervisors 	and 	Senior 	Specialists
A. 	It 	would seem appropriate 	that 	if people
are 	left without 	a 	slot, 	they should be
allowed to 	apply 	for 	CLT positions 	(at
approximately the 	same 	time 	or very
shortly after decisions 	are 	made
regarding 	supervisor 	and 	specialist
positions).
B. 	However, 	the 	issue 	is: 	would all 	CLTs
have 	to 	reapply 	(looking 	for 	the 	best
people 	for 	the 	jobs).
C. 	These 	jobs 	(supervisors) 	need to be
filled first, 	so the 	individuals can
help 	select 	all 	other 	job
classifications.
3. 	PROS 	to having all 	job 	classifications
reapply 	for positions:
A. 	Would allow everyone 	an equal 	chance 	at
finding a position, 	particularly if 	they
apply 	for one 	of 	the 	Senior Supervisor,
Supervisor, 	or Senior Specialist 	jobs
and are 	not 	selected.
B. 	Would confirm the 	"new way of 	operating"
and 	emphasize 	performance 	expectations
within 	this 	changing 	environment.
C. 	Might 	solidify the 	"new teams" 	and
emphasize 	teamwork 	and 	flexibility
D. 	Would 	force 	review and revision of 	all
job 	descriptions 	(including performance
expectations, 	cooperation, 	etc.)
E. 	Would require 	one 	job 	classification 	set
of 	interviews 	to 	immediately 	follow the
completed one before 	- 	no real 	chance
for a break 	in time.
F. 	Would be perceived as 	fair 	(if 	handled
well)
G. 	Will 	emphasize 	from here on 	- 	won't be
business as usual. 	Everyone will be
responsible 	for their performance 	-
hopefully would 	also 	help 	eliminate
inequities 	within performance 	evaluation
system.
H. 	Would not 	have 	to use 	layoffs 	(with
possibly of 	"bumping" 	other employees) 	-
morale would be 	much worse 	in this
situation 	and good employees 	(may not
have 	seniority) 	would lose 	their jobs.
14

4. 	CONS 	to have all 	job classifications 	reapply
for positions:
A. 	Interview 	time 	would be 	extensive
B. 	Would require 	review and revision of
some 	job descriptions 	(might 	have 	to
occur 	anyway)
C. 	Might 	delay completion of unit personnel
selection
D. 	Would be perceived as 	unfair 	(if 	handled
poorly)
E. 	Would add to 	the 	stress
F. 	Might 	or might 	not 	accomplish things
mentions 	as 	PROS 	(above)
G. 	Would require development 	of 	a
comprehensive plan, 	definition of
timeliness, 	and preparation of
reapplication 	and 	hiring 	guidelines
If we 	really want 	to 	ensure 	the 	best possible
staff, 	there seems 	to be no other option but
to have 	all 	job classifications 	reapply 	for
their positions. 	This provides 	an excellent
opportunity 	to 	redraft 	or 	revise 	job
descriptions, 	as well as provide an
opportunity 	for everyone 	to 	apply 	for 	any
open position. 	Rewriting of 	job descriptions
may have 	to be 	done 	anyway before we
undertake 	the 	next 	cycle 	of performance
evaluations, 	to address inequities, 	etc.
Garcia 	testified discussions 	of 	these 	"pros 	and cons" 	continued
among Stanton and the managers, 	"certainly in conjunction with
Human Resources," 	which was Gardner's 	office. 	Neither UPTE nor
the 	HX employees 	were 	apprised of 	these 	discussions.
The 	October 	7 	cover memo 	also 	stated Garcia would draft 	a
separate 	memo 	to 	Gardner 	that 	week 	"regarding 	the 	group's
discussions 	per 	the 	Senior 	Specialist 	and Specialist 	series."
That memo to Gardner is not 	in evidence, 	but 	it 	appears 	the
managers 	were 	recommending 	or 	assuming 	the 	specialist 	positions
would be 	eliminated. 	Neither UPTE nor the HX employees were
apprised of 	this 	recommendation or 	assumption.
15

On October 17, 	1996, 	Gardner 	(without Stanton) 	met again
with 	Fried and 	Inchauspi. 	Some 	managers 	had apparently 	told 	some
employees 	that 	all 	CLTs 	would have 	to 	reapply 	for their 	jobs.
When asked if 	that was true, 	Gardner's 	answer was 	"we haven't
really made 	those decisions yet."
On November 15, 	1996, 	the three met again, 	with CLT Sally Jo
Michael 	(Michael) 	also present. 	Michael 	asked if 	layoffs would
involve 	bumping; 	Gardner 	said they would not. 	UPTE 	requested
another meeting with Stanton 	in January, 	after the holidays.
Meanwhile, 	the managers had made 	recommendations 	regarding
the 	supervisory structure of 	the newly-defined units. 	On
December 9, 	1996, 	a proposal 	for a new supervisory structure was
posted in the Department. 	Overall, 	the proposal 	called for an
increase 	in the number of 	senior supervisors 	from 7 	to 	11, 	a
decrease 	in the number of 	supervisors 	from 8.5 	to 	1, 	an increase
in the number of 	senior specialists 	from 12 	to 	15, 	and a decrease
in the number of 	specialists 	from 13 	to 	0. 	The posted proposal
came 	to 	Fried's 	attention, 	who 	informed Gardner that UPTE wanted
to discuss 	its 	impact.
In mid-December 1996, 	there was a series of meetings
involving Department 	and University management. 	Among 	those
involved were Stanton, 	Gardner, 	some of the unit managers,
Associate 	Director 	for Ambulatory 	Care 	Frances 	Ridlehoover
(Ridlehoover) 	and Associate 	Director 	for Human Resources Mark
Speare 	(Speare). 	Ridlehoover ultimately made the decision, 	with
Stanton's 	agreement, 	to 	issue 	layoff notices 	to all 	the
16

employees. 	Ridlehoover did not 	testify, 	but 	Stanton explained
that 	the 	old administrative units, 	which were 	also 	layoff units,
"did not 	divide 	nicely or did not 	transfer 	in toto 	to 	the 	new
units," 	with the 	result 	that 	layoff by inverse 	order of 	seniority
within 	the 	old units 	"couldn't 	establish a 	reasonable 	starting
point 	. 	. 	. 	that would allow us to get to the new units." 	She
acknowledged, 	however, 	that 	some 	individual 	jobs 	changed only
minimally.
Gardner 	also 	testified about 	the 	discussions 	that 	ultimately
led to the 	layoff decision. 	Like 	Stanton, 	she 	testified that 	if
the 	Department 	eliminated the 	least 	senior people 	in 	the 	old
layoff units 	it 	"didn't 	necessarily have people who were
qualified 	in the 	new 	structure 	to perform the 	tasks." 	Having
employees 	apply only 	for newly-created 	"hybrid" 	positions 	might
not 	work either, 	because 	employees 	who might 	qualify might 	not
apply. 	Gardner also 	testified about 	discussions 	of 	using
"special 	skills 	exemption letters" 	(as 	authorized by PPSM Policy
60), 	but 	she 	"imagined having to write 	143 	of those 	letters 	and
we 	said, 	well, 	that's not going to work." 	Gardner testified
there was 	awareness 	that 	failure 	to use 	seniority might 	cause
some 	senior employees 	to 	lose 	their jobs, 	but 	there was 	also
awareness 	that 	most 	employees 	in the 	Department 	were 	longtime
employees.
The 	layoff decision was made on December 17, 	1996. 	The next
day, 	Gardner drafted what became 	the December 19 memo to 	the
employees. 	Gardner testified management 	decided to 	issue 	the
17

memo before 	the 	holidays 	because 	"people 	tend 	to 	spend money
[and] 	make plans" 	around that time, 	and because postponing the
notice would 	"prolong 	the 	agony."
The morning of December 19, 	1996, 	before the memo was
finalized, 	Fried met 	briefly with Gardner. 	Fried was 	leaving on
vacation that 	day or the next, 	and he 	so 	informed Gardner. 	Fried
asked what was 	happening; 	he 	remembers 	Gardner saying there would
be 	some 	decisions 	soon, 	but 	Gardner remembers 	telling Fried there
would be 	a 	"letter" 	sometime 	that 	day. 	Gardner did not 	reveal 	to
Fried the 	contents 	of 	the memo; 	she 	testified she 	"didn't 	think
it was 	appropriate 	or necessary" 	to do 	so until 	the memo was
issued to 	the 	employees. 	Gardner ultimately faxed the memo 	to
Fried's office 	four days later, 	on December 23, 	1996.
During their brief 	December 	19 	meeting, 	Fried and Gardner
talked about meeting again on or after January 10, 	1997, 	after
Fried returned 	from vacation. 	They also 	talked at 	least
tentatively about 	Gardner meeting with 	Inchauspi 	on December 	27,
1996, 	the 	only day during 	the 	two-week holiday period Gardner
would be available. 	Because of a 	failure of communication, 	that
meeting did not 	occur but 	was 	rescheduled for January 2, 	1997.
Meeting 	and Discussing 	in 	1997
On January 2, 	1997, 	Gardner met with Inchauspi, 	Michael and
(in Fried's absence) 	UPTE organizer Howard Ryan 	(Ryan), 	who asked
for 	a delay in the 	layoff 	and rehire process while meeting and
discussing took place, 	and for more 	information. 	(UPTE's
requests 	for 	information will 	be 	addressed 	separately 	in 	these
18

findings 	of 	fact.) 	Gardner took 	the position there would be
plenty of 	time 	for meeting and discussing before 	the 	layoffs
actually took 	effect 	in March. 	Ryan 	suggested any layoffs 	be
based on 	inverse 	order of 	seniority, 	and Gardner explained
problems 	she 	saw with 	that 	approach given 	the 	restructuring of
the Department.
On January 16, 	1997, 	Gardner and Stanton met with Fried,
Inchauspi and CLT Bhanu Bawal 	(Bawal). 	This was nine days after
the 	first 	layoff 	letters 	(to specialists, 	senior specialists,
supervisors, 	and senior supervisors) 	were 	issued and just 	one day
before 	the 	newly-defined 	senior 	specialist 	and 	senior 	supervisor
positions 	were posted. 	UPTE 	again asked 	for a 	delay and 	for more
information. 	There was 	talk about 	some 	alternative 	approaches,
but 	according 	to 	Fried UPTE 	could not 	make 	a proposal 	without
more 	information. 	Fried 	and 	Inchauspi 	remember Gardner 	saying
many of 	the 	jobs had changed 2 0 percent, 	which was 	the
University's 	standard 	for 	reclassification. 	Gardner 	remembers
saying 	she 	"didn't 	think 	the 	CLT 	job 	descriptions 	could meet 	the
2 0 	percent 	test" 	but 	the 	senior specialist 	and senior supervisor
job 	descriptions 	did. 	(Gardner thought 	she 	said this 	at 	the
January 2 meeting, 	but 	it 	is her notes 	for the January 16 meeting
that 	first 	mention the 	20 	percent 	standard.)
Meanwhile, 	the managers 	continued to work on the 	supervisory
structure of the newly-defined units. 	On January 17, 	1997, 	they
produced a new proposal 	calling for 	14 	senior supervisors, 	no
supervisors, 	14 	senior specialists, 	and no specialists.
19

On January 28, 	1997, 	Gardner and Stanton met with Fried,
Inchauspi, 	Michael, 	and three other employees. 	This was just
three 	days before 	the 	layoff 	letters 	to CLTs were 	issued and ten
days before 	the 	newly-defined CLT positions 	were posted. 	UPTE
again asked 	for a delay and 	for more 	information. 	UPTE 	raised a
number of 	questions 	about 	retirement, 	which were ultimately
addressed by a 	letter to 	Fried on February 11, 	1997, 	which was
later supplemented on March 3, 	1997. 	There was 	also talk on
January 28 	about 	the rehire 	selection process and criteria, 	about
the 	impact 	on part-time employees, 	about whether jobs were 	really
changing 	(with reference again to the 2 0 percent standard), 	about
the 	risk 	of 	retaliation 	against 	employees 	who 	filed grievances,
and about 	the 	Department's 	financial 	situation. 	With regard to
the 	risk of 	retaliation 	in the 	rehire process, 	Gardner promised
to discuss 	the matter with the managers, 	and did so.
Meanwhile, 	the 	layoff 	and rehire process moved forward. 	The
managers 	finalized a generic 	job description for all 	CLTs, 	with
addenda 	for particular CLT 	jobs 	in particular units. 	Because 	the
job descriptions 	indicated a 	somewhat 	higher 	level 	of potential
responsibility 	for 	CLTs, 	the University ultimately approved 	an
expanded CLT salary range, 	raising the 	top of that 	range 	to what
had been the 	top of 	the 	specialist 	range. 	The managers 	selected
senior 	supervisors 	and senior 	specialists 	for 	their units 	and
began 	interviewing CLT candidates.
On March 7, 	1997, 	before the process was completed, 	Gardner
and Stanton met 	once again with Fried, 	Inchauspi 	and Bawal. 	By
20

this 	time 	the 	charging parties 	had 	filed their unfair practice
charges 	and were 	seeking 	injunctive 	relief 	from 	PERB 	(ultimately
without 	success). 	UPTE asked once 	again for a delay and for more
information. 	Fried asked 	for an extension of 	time 	for employees
to 	file grievances, 	in order to avoid the 	risk of 	retaliation;
Gardner denied the 	request, 	but 	she 	said supervisors 	and managers
would not 	be 	told who 	filed grievances. 	There was 	also 	talk
about 	training; 	Fried and Bawal 	remember Gardner 	saying 	rehired
CLTs 	would be 	expected to 	do 	their 	jobs 	with a minimum of 	further
training.
Gardner 	testified 	she 	and 	Stanton 	consulted with Associate
Directors 	Ridlehoover 	and Speare 	about 	the meet 	and discuss
sessions, 	and the 	four of 	them decided not 	to delay the 	layoff
and rehire process, 	as UPTE asked. 	Fried testified Gardner and
Stanton 	"kept repeating 	. 	. 	. 	that they would listen to us and
hear what 	we 	had to 	say," 	but 	"they heard what 	we 	had to 	say and
nothing 	changed."
Requests 	for 	Information
UPTE 	made 	numerous 	and 	repeated oral 	and written 	requests
for 	information. 	These 	findings 	of 	fact 	shall 	focus 	on the 	ten
requests 	alleged 	in the 	PERB 	complaint.
1. 	Current 	(old) 	job descriptions 	for senior supervisors,
supervisors 	and 	senior 	specialists. 	Fried 	first 	requested these
in a letter to Gardner dated December 11, 	1996. 	Gardner provided
these 	to 	Fried over two months 	later, 	during the week of
February 18, 	1997.
21

2. 	Current 	(old) 	job descriptions 	for CLTs. 	Fried first
requested these 	in a 	letter to Gardner dated January 13, 	1997.
Gardner provided these over 	five weeks 	later, 	during 	the week of
February 18, 	1997.
3. 	Number of 	employees who would lose 	their 	jobs,
including the number of 	full-time 	equivalent 	(FTE) 	jobs 	lost.
Fried 	first 	requested 	the 	number of 	employees 	who 	"could
possibly" 	lose their jobs 	in his letter of December 11, 	1996, 	and
he 	requested the 	"projected" 	loss 	of 	FTE 	jobs 	in his 	letter of
January 13, 	1997. 	Gardner provided the 	information in a letter
to Fried dated March 12, 	1997, 	when the numbers were 	finalized.
Gardner 	acknowledged 	some 	of 	the 	information was 	available 	over 	a
month earlier, 	on February 7, 	1997, 	when the CLT positions were
posted. 	In a letter to Fried dated February 13, 	1997, 	she said
"approximately 110 	CLT vacancies were posted." 	Later, 	in the
March 12 	letter, 	she 	indicated 131.6 	career CLT positions would
be 	filled.
The University points out 	that 	on December 	9, 	1996, 	the
proposal 	for 	a 	new 	supervisory 	structure 	had been posted. 	That
proposal 	had included, 	among other things, 	a specific reduction
in the number of 	specialists, 	but 	it 	had not 	indicated whether
jobs would be 	lost 	or merely reclassified. 	The proposal 	had not
addressed the number of 	CLT 	jobs 	at 	all.
4. 	Names 	and job titles 	of all 	employees. 	Fried requested
this 	information in a letter to Gardner dated January 22, 	1997.
Gardner provided 	the 	information 	in 	a 	letter 	to 	Fried dated
22

February 7, 	1997. 	She had previously provided the 	information on
a diskette on January 9, 	1997.
5. 	Number of 	supervisory staff. 	Fried requested this
information in his 	letter of January 22, 	1997, 	and Gardner
effectively provided it 	in her letter of February 7, 	1997, 	which
listed the 	supervisory staff 	along with 	the 	rest 	of 	the 	staff.
The 	supervisory structure proposal 	posted on December 	9, 	1996,
had also 	included the 	number of 	supervisory 	staff.
6. 	Administrative directives 	regarding restructuring. 	In
his 	letter of January 13, 	1997, 	Fried requested 	"[a]ny and all
directive[s] 	regarding the 	restructuring 	from the Director of 	the
Medical 	Center." 	Gardner testified 	she 	knew of 	no 	such
directives; 	she did not respond to the request.
7. 	Proposed application procedures. 	In his 	letter of
December 	11, 	1996, 	Fried requested a 	"[c]opy of the application
procedure" 	for supervisory and specialist positions. 	In his
letter of January 13, 	1997, 	he requested the 	same 	information for
CLT positions 	as well. 	At 	the meet 	and discuss 	sessions 	in
January 	1997, 	Gardner verbally outlined the 	selection process,
and she 	outlined that 	process 	again 	in her 	letter of 	February 13,
1997. 	Gardner apparently never provided a 	"copy of 	the
application procedure", 	and there was 	no evidence whether such a
document 	existed.
The 	University points 	out 	the 	layoff 	letters 	themselves
announced 	informational 	meetings 	on 	the preferential 	rehire
process, 	at which employees would be asked 	"to specify the 	types
23

of 	UCLA positions 	you 	are 	interested 	in pursuing 	and to present 	a
current 	description of your 	job 	skills 	and qualifications."
8. 	Proposed 	(new) 	job descriptions 	for senior supervisors
and 	senior 	specialists. 	Fried requested these 	"proposed" 	job
descriptions 	in his 	letter of December 11, 	1996. 	The job
descriptions were posted on January 17, 	1997, 	and Gardner
provided what 	she 	thought 	were 	complete 	job 	descriptions 	to 	Fried
at the same time. 	Gardner learned on January 28, 	1997, 	the 	job
descriptions 	given Fried were 	incomplete, 	and 	she promptly made
the missing parts 	available 	to 	Fried, 	who picked them up 	on
January 30, 	1997.
The 	University points 	out 	these 	job descriptions 	were 	not
entirely 	finalized until 	just 	before 	they were 	posted. 	The
evidence 	also showed, 	however, 	that 	these 	job descriptions were
in various 	stages 	of drafting and approval 	in October, 	November
and December of 	1996.
9. 	Seniority lists 	for all 	employees. 	Fried requested
"the 	seniority of 	each employee 	in each division" 	in his 	letter
of January 22, 	1997. 	Under Policy 60 of the PPSM, 	seniority is
calculated 	"by full-time-equivalent 	months 	(or hours) 	of
University service," 	excluding employment 	prior to 	a break 	in
service. 	In her letter of February 7, 	1997, 	Gardner provided
just the hire dates 	for all employees. 	On March 7, 	1997, 	Fried
told Gardner he wanted actual 	seniority points, 	which she
provided in a letter dated March 28, 	1997.
24

The University maintained lists 	of 	hire dates 	but 	not 	of
seniority points, 	which required review by a personnel
specialist. 	Gardner 	testified 	she 	interpreted 	Fried's 	request 	as
one 	for hire 	dates; 	CLT Michael 	testified UPTE had asked 	for
"hire dates" 	at 	the meet and discuss 	session on January 16, 	1997.
An 	employee 	relations 	manager 	testified hire 	dates 	are 	quicker 	to
get 	and generally give 	the 	same 	results.
10. 	Proposed 	(new) 	job descriptions 	for CLTs. 	Fried
requested this 	information in his 	letter of January 24, 	1997.
These 	job descriptions were posted on February 7, 	1997. 	Gardner
made 	them available 	for Fried to pick up on February 	14 	or 	18,
1997. 	These 	job descriptions were 	drafted in late 	January and
early February of 	1997.
Rehiring
There was 	relatively 	little 	evidence 	about 	the 	rehiring
process 	for senior supervisors 	and senior specialists, 	but
presumably the 	University 	followed 	the 	procedures 	outlined 	in 	the
memo of December 19, 	1996, 	and the layoff 	letters of January 7,
1997. 	Employees were 	asked to attend meetings 	at 	which they were
to present 	a description of 	their qualifications 	and to 	specify
the positions 	they were 	interested 	in pursuing. 	There were 	then
to be 	two rounds of hiring. 	The 	first 	round was 	to be 	for
employees 	exercising preference 	for 	jobs 	at 	the 	same 	salary level
or 	lower and the 	same or lesser percentage of time. 	In the
second round, 	any remaining vacancies were 	to be posted 	for open
25

recruitment. 	The hope was 	to 	fill 	all 	these vacancies by the end
of 	January.
According to Gardner's 	letter of February 13, 	1997, 	"[e]ach
section 	assembled an 	interview panel" 	that 	included 	the 	section
manager, 	and each manager 	"utilized a generic 	questionnaire 	and
then 	added questions 	specific 	to 	the 	specialty area." 	Gardner
further 	stated 	that 	"written notification will 	be 	provided 	to
those 	candidates 	not 	selected 	for positions 	along with 	the
reason(s) 	for nonselection." 	When the process was 	concluded,
some 	35 	employees 	(mostly specialists) 	had not 	been rehired.
There was more 	evidence 	about 	the 	rehiring process 	for CLTs.
Again, 	employees were asked to attend meetings, 	present 	a
description of 	their qualifications, 	and 	specify their 	interests.
Binders 	of 	resumes were 	circulated among the managers, 	who
determined whether 	employees 	met 	the 	minimum qualifications 	they
had 	established.
Once again there were 	two rounds 	of 	interviews, 	a preference
round 	and an open 	round. 	Specialists 	and other higher 	level
employees 	not 	yet 	rehired could qualify 	for 	the preference 	round,
along with the current 	CLTs. 	At 	some point, 	candidates were
considered not 	only 	for 	career 	CLT positions 	but 	also 	for 	casual
CLT positions 	and 	for HLT positions.
Once 	again 	interview panels were 	assembled, 	now including
both managers 	and senior 	supervisors. 	Each panel 	used 	its 	own
set 	of 	interview questions 	to 	evaluate 	not 	only relevant
technical 	skills but 	also 	such things 	as 	interpersonal 	skills.
26

After the 	interviews, 	panel members 	looked at personnel 	records,
including recent 	evaluations 	and attendance 	records.
Apparently none 	of 	the 	interview panels 	gave 	any positive
consideration to 	length of 	service. 	The 	job descriptions 	they
used generally called for 	"recent" 	or 	"current" 	experience 	in
particular areas, 	so 	longtime employees with a range of
experience 	that might 	not be 	"recent" 	or 	"current" 	enjoyed no
advantage. 	Also, 	the 	job descriptions 	sometimes 	called for
"recent" 	or 	"current" 	experience in more than one area, 	even
though those 	areas 	had been 	in 	separate 	units. 	Longtime
employees who had remained 	in one unit 	thus might 	not 	meet 	the
qualifications.
As of April 	3, 	1997, 	some 26 	employees 	(mostly CLTs) 	had not
been rehired, 	some having chosen to retire. 	Of 	the 	43 	employees
adversely affected 	(by layoff, 	demotion, 	or otherwise),
51 percent were UPTE members, 	even though only 29 percent 	of 	the
220 HX employees 	in the Department were UPTE members.
The 	complaint 	(as 	amended during the hearing) 	alleges 	seven
UPTE 	members 	in particular 	suffered 	retaliation during 	the 	rehire
process, 	and their 	situations will 	be 	addressed 	individually 	in
these 	findings 	of 	fact. 	Not 	all UPTE activists were 	adversely
affected, 	however. 	Three 	of 	the 	five 	CLTs 	listed on the UPTE
letter of October 18, 	1996, 	and five of the eight 	listed on the
UPTE letter of November 4, 	1996, 	were rehired as CLTs, 	including
Inchauspi, 	the UPTE steward.
27

Henry 	Hao
As previously stated, 	Hao was 	a 	specialist with 20 	years of
service 	and a 	recent 	evaluation 	that 	his 	performance 	"Exceeds
Expectations." 	He 	applied unsuccessfully for CLT positions 	in
three units: 	Brentwood, 	High Volume Testing and Special 	Testing.
He 	ultimately 	accepted an HLT position.
Hao 	actually joined UPTE 	in January 	1997, 	but 	he 	had been
active 	in the UPTE 	campaign 	since 	July 1996. 	He believed High
Volume Testing manager Debra 	Cobb 	(Cobb) 	and Special 	Testing
manager Maggie McGinley 	(McGinley) 	were 	aware 	of 	his UPTE
activities 	because 	they 	saw him 	in 	the 	hallway talking 	to
Inchauspi, 	Michael and Bawal. 	On February 3, 	1997, 	the Daily
Bruin 	(the 	campus 	newspaper) 	published a picture 	of 	Hao 	standing
next 	to 	Inchauspi, 	along with an article 	about 	the 	layoffs 	and
UPTE's 	opposition to 	them. 	The 	article 	did not 	identify Hao 	as
an UPTE 	supporter but 	did quote 	him as 	asking 	"when 	something
like this happens, 	what's the point of loyalty?"
Brentwood manager Garcia 	testified Hao 	did not 	do 	as 	well 	in
the 	interview process 	as 	other candidates, 	who had more 	recent
relevant 	experience. 	She 	also 	testified that 	she 	did not 	see 	the
Daily Bruin article, 	that 	she 	learned Hao was 	involved with UPTE
only after the 	interview, 	and that 	Hao's 	involvement 	did not
affect 	the 	decision not 	to offer him a position. 	The 	Brentwood
unit 	did hire 	one 	of 	the 	CLTs 	listed on the UPTE 	letters 	of
October 18 	and November 4, 	1996.
28

High Volume 	Testing manager 	Cobb 	testified Hao's 	interview
was 	"disappointing." 	Hao's 	technical 	scores were barely
acceptable 	in hematology and not 	acceptable 	in chemistry. 	Also,
Cobb thought Hao's 	communication skills were not good, 	in that 	he
could be 	difficult 	to understand at 	times. 	(The 	transcript 	of
Hao's 	hearing 	testimony 	lends 	some 	support 	to 	Cobb's 	concern.)
Cobb testified she was 	not 	aware 	of Hao's 	involvement 	with
UPTE. 	She acknowledged she 	saw the Daily Bruin article, 	but
testified 	it 	did not 	affect 	her consideration of 	Hao. 	She 	did
ultimately hire Hao as 	an HLT, 	partly because 	she 	thought 	he had
"good 	interpersonal 	skills 	and a willingness 	to 	learn." 	The 	High
Volume 	Testing unit 	also 	hired one 	of 	the 	CLTs 	listed on 	the 	UPTE
letter of November 4, 	1996.
Special 	Testing manager McGinley 	testified Hao 	was 	not
offered a 	job because 	other 	candidates 	had more 	experience 	and
better knowledge. 	She 	also 	testified 	she was unaware 	of 	Hao's
UPTE 	activities. 	She 	acknowledged 	she 	saw the Daily Bruin
article 	at 	some point 	but 	testified 	it 	did not 	affect 	her
consideration of Hao. 	She did hire 	Inchauspi as a CLT, 	knowing
Inchauspi was 	an UPTE 	steward.
Sally Jo 	Michael
As previously stated, 	Michael 	participated 	in meet 	and
discuss 	sessions 	in 	1996 	and 	1997. 	She was also active 	in the
UPTE 	campaign and wore 	an UPTE button at 	work.
Michael was 	a CLT with 13 	years 	of 	service. 	Her most 	recent
evaluation indicated 	"Good Performance" 	overall, 	but 	it 	also
29

indicated she 	"Does not meet 	standards" 	in the 	area of
"planning/time utilization" 	and was 	"borderline" 	in
"judgement/decision making." 	On March 8, 	1996, 	she was 	issued a
counseling memo with regard to 	"Job 	Knowledge 	- 	Independent
Judgment." 	She 	filed a grievance, 	which was 	settled with a
promise that 	the memo would be withdrawn on July 1, 	1997, 	and
would not 	be 	used in her next 	evaluation 	if 	her 	job knowledge 	and
independent 	judgment 	were 	otherwise 	satisfactory.
At 	the time of 	the 	layoffs, 	Michael was working 60 percent
of 	full-time. 	She 	applied unsuccessfully 	for CLT and/or HLT
positions 	in four units: 	Brentwood, 	High Volume Testing, 	Special
Testing, 	and Outreach Testing.
Brentwood manager Garcia 	testified Michael 	was 	not
interviewed because 	she 	lacked 	the 	requisite 	recent 	experience.
Garcia acknowledged she became 	aware 	at 	some point 	of Michael's
involvement 	in UPTE, 	but 	she testified it was not 	a reason
Michael 	was 	not 	interviewed.
High Volume 	Testing manager 	Cobb 	testified Michael 	was 	not
offered 	a 	job because 	she 	lacked 	recent 	experience 	and because 	of
the 	evaluation and counseling memo. 	Cobb 	also 	testified she was
unaware 	of Michael's 	involvement 	with UPTE.
Special 	Testing manager McGinley 	testified Michael 	was 	not
interviewed 	in the 	preference 	round 	for a 	100 	percent 	CLT
position because 	she was working only 60 	percent 	of 	full-time.
Michael 	was 	interviewed 	for a 	60 	percent 	casual 	CLT position,
however. 	McGinley testified Michael 	was 	not 	offered the 	position
30

because 	there was 	a better qualified candidate. 	McGinley had
reviewed Michael's 	personnel 	file 	and had 	seen 	the 	counseling
memo; 	she 	then talked to Michael's 	supervisors 	and learned
Michael's 	performance 	had 	improved. 	McGinley acknowledged she
was 	aware 	of Michael's 	involvement 	in 	the meet 	and discuss
sessions, 	but 	she 	testified it was 	not 	a 	factor in the decision
not 	to offer Michael 	a position.
Outreach 	Testing manager 	Deborah 	Hangebrauk 	(Hangebrauk)
testified Michael 	was 	not 	interviewed 	for a 	CLT position because
she 	lacked particular 	experience. 	Hangebrauk 	determined
Michael's 	experience 	from her 	resume 	and 	from a 	telephone
conversation with her. 	At 	first 	Hangebrauk was not 	going to
interview Michael 	even 	for an HLT position, 	but Michael persuaded
her 	she 	had the 	experience 	for that position. 	Hangebrauk
testified that 	among the 	14 	or 	15 	candidates 	interviewed 	for 	2
HLT positions, 	there were others with more 	recent 	experience 	than
Michael. 	She 	also 	testified 	she 	had concerns 	about 	Michael's
evaluation and was 	unaware 	of Michael's 	involvement 	with UPTE.
Ron Allin
Ron Allin 	(Allin) 	was a 	specialist with 21 years of 	service.
Allin was an UPTE member, 	was 	active 	in the UPTE campaign, 	and
had worn an UPTE button. 	He believed his 	supervisors were 	aware
of 	his UPTE membership by being 	"on the 	other side 	of 	the 	fence
in grievance procedures, 	among other things." 	Allin applied
unsuccessfully for career 	CLT positions 	in three 	units:
Brentwood, 	High Volume Testing, 	and Outreach Testing. 	His 	resume
31

was 	reviewed in Special 	Testing, 	but 	he did not meet 	the minimum
qualifications. 	He was 	offered an HLT position but 	eventually-
decided 	to 	take 	a 	casual 	CLT position 	instead.
Brentwood manager 	Garcia 	testified Allin 	did 	reasonably well
in 	the 	interview but 	not 	as well 	as 	those who were 	offered career
CLT positions. 	On March 14, 	1997, 	Garcia sent Allin a memo
stating he 	"met 	the minimum qualifications" 	but 	"more 	qualified
preference 	applicants" 	were 	selected. 	Allin testified Garcia had
previously told him he was 	not 	minimally qualified. 	Allin 	also
testified that 	when he 	asked 	"them" 	specifically why he 	was 	not
selected 	"they wouldn't 	answer 	the 	question."
Garcia 	testified 	she 	did not 	think 	she 	knew of Allin's
involvement 	with UPTE until 	later. 	Also on the 	interview panel
was May Ota 	(Ota), 	Allin's 	supervisor. 	From Allin's testimony,
it 	appears 	Ota may have been aware 	of Allin's 	involvement with
UPTE. 	Ota did not 	testify, 	and it 	is not 	clear what her role 	in
the 	selection process may have been.
Garcia did, 	however, 	offer Allin an HLT position, 	which he
initially accepted but 	then 	rejected. 	When 	a 	casual 	CLT position
became available, 	Garcia offered it 	to Allin, 	and he accepted it.
High Volume 	Testing manager 	Cobb 	testified Allin was 	not
offered a 	CLT position because 	he 	lacked 	recent 	experience 	in the
relevant 	areas. 	She 	also 	testified Allin was not 	offered an HLT
position because 	of 	his 	limited experience 	and because Allin had
been offered an HLT position 	in 	the 	Brentwood unit. 	She 	also
testified 	she was unaware 	of Allin's 	involvement 	with UPTE.
32

Outreach Testing manager Hangebrauk 	testified 	she 	reviewed
Allin's 	resume 	and determined he 	did not 	meet 	the 	minimum
qualifications 	in terms of 	relevant 	experience. 	She 	also
testified she was 	unaware 	of Allin's 	involvement with UPTE.
Arnold 	Aquino
Arnold Aquino 	(Aquino) 	was a CLT with 23 years of 	service.
His 	most 	recent 	evaluation 	indicated 	"Good performance" 	and
credited him with being a 	"team leader" 	as well 	as 	a 	"team
player." 	One 	of 	the 	"goals 	and expectations" 	for Aquino 	in the
next 	year was 	that 	he be 	"conscientious with verification of
microscopic 	work 	and calling 	of 	panic 	values."
Aquino was 	active 	in the UPTE 	campaign. 	He 	attended an UPTE
meeting 	in January 1997; 	he believes 	his 	supervisor Ada Lopez
(Lopez) 	knew he was 	at 	the meeting because 	"she was 	looking 	for
us 	and somebody told her." 	(Aquino's 	belief 	appears 	to be based
on hearsay, 	since 	he 	apparently was 	not 	present 	to hear 	someone
tell 	Lopez where 	he was.)
At 	the time of 	the 	layoffs, 	Aquino was working 80 percent of
full-time. 	He 	applied for CLT and HLT positions 	in three units:'
High Volume 	Testing, 	Special 	Testing and Outreach Testing.
High Volume 	Testing manager 	Cobb 	testified Aquino was 	not
offered a CLT position for three reasons: 	(1) 	there were only
one or two 80 percent positions, 	(2) 	Aquino did not do
particularly well 	on the 	technical 	questions 	in the 	interview,
and 	(3) 	there was 	"a history of customer service 	issues" 	with
Aquino. 	Cobb had heard of 	two 	incidents 	in the 	last 	six months
33

when Aquino had 	failed to 	help 	her 	staff. 	Senior 	supervisor
Dennis Sunseri 	(Sunseri), 	who was also on the 	interview panel,
was 	aware 	of 	another 	similar 	incident 	within the 	last 	eight 	to
twelve months. 	According to Aquino, 	Cobb explained to him he was
not 	selected because he was 	not 	a 	"team player," 	and Aquino
understood 	this 	referred 	to yet 	another 	incident 	back 	in 	1992 	or
1993. 	Aquino 	had not 	been counseled or written up 	for any of
these incidents, 	however.
A 	"candidate 	review 	document" 	prepared by 	Cobb 	appeared 	to
indicate Aquino would be 	hired for a casual position, 	but 	he was
not; 	this 	anomaly was not 	explained. 	Cobb testified she was
unaware 	of Aquino's 	involvement with UPTE. 	Aquino's 	supervisor
Lopez, 	who was also on the 	interview panel, 	did not 	testify.
Special 	Testing manager McGinley 	testified Aquino 	was 	not
interviewed 	in 	the preference 	round because 	he worked 	less 	than
100 percent 	of 	full-time, 	and he was 	not 	interviewed 	in the open
round because 	he 	lacked the 	necessary experience, 	based on his
resume 	and on what 	he 	told her. 	She 	also 	testified 	she was
unaware 	of 	his 	involvement with UPTE.
Outreach 	Testing 	manager Hangebrauk 	testified Aquino
canceled 	two 	scheduled 	interviews 	for positions 	in 	the Med 	Plaza
section 	and 	tried 	to 	set 	up 	a 	third only after 	those 	positions
were 	filled. 	Aquino was 	interviewed 	for positions 	in the 	Santa
Monica Hospital 	section, 	however, 	as one of about 	50 	candidates
for 22 positions. 	Hangebrauk ultimately informed Aquino 	she 	had
"decided 	to 	select 	more 	qualified applicants 	for 	these positions
34

possessing not 	only Hematology and Chemistry experience, 	but
established Blood Banking 	experience 	as 	well." 	Aquino
acknowledged he 	had no 	formal 	training 	in blood banking.
Hangebrauk 	also 	testified that 	she 	was 	concerned about 	the
reference 	to 	"verification of 	microscopic 	work 	and 	calling of
panic values" 	in Aquino's 	evaluation, 	and that when she 	checked
she was 	informed 	there were 	some 	undocumented problems 	with
Aquino's 	work performance 	and accuracy. 	She 	also 	testified 	she
was 	unaware 	of Aquino's 	involvement 	with UPTE.
Barbara 	Freed
Barbara Freed 	(Freed) 	was a CLT with 20 years of 	service.
She was 	active 	in the UPTE campaign, 	and her name was 	listed on
the UPTE 	letters of October 18 	and November 4, 	1996. 	She wore an
UPTE button at 	work, 	and 	she believed her 	supervisor knew she was
active 	in UPTE. 	The Daily Bruin article of February 3, 	1997,
mentioned her; 	it 	did not 	identify her as 	an UPTE 	supporter but
did quote 	her 	as 	describing the 	layoffs 	as 	"very cold."
Freed's 	last 	evaluation 	indicated 	"Good Performance"
overall, 	but 	it 	also 	indicated she was not 	familiar with all
procedures and was not 	an effective 	teacher. 	It 	also 	indicated
she 	should improve her productivity, 	punctuality, 	interpersonal
skills, 	accountability and safety practices. 	She 	applied
unsuccessfully 	for CLT positions 	in three 	units: 	High Volume
Testing, 	Special 	Testing, 	and Outreach Testing. 	She ultimately
chose 	to retire 	in order to maintain her medical benefits.
35

- -
High Volume 	Testing manager Cobb 	testified 	Freed was 	not
selected because 	of 	Freed's 	last 	evaluation and because 	Cobb 	knew
Freed 	had been verbally 	counseled 	in 	recent 	months 	for
inappropriate 	interaction with her 	coworkers. 	Freed was 	informed
of 	these 	reasons 	when 	she 	asked why she 	had not 	been 	selected.
Cobb testified 	she was unaware 	of 	Freed's 	involvement with UPTE,
although 	she 	knew Fried had been quoted 	in 	the 	Daily Bruin.
Special 	Testing manager McGinley 	testified 	Freed was 	the
lowest 	ranking 	candidate 	"just 	based 	on 	the 	interview questions
and her 	technical 	ability." 	McGinley 	sent 	Freed 	a memo 	stating a
candidate 	"with more 	applicable 	qualifications" 	was 	selected.
McGinley 	testified 	she was 	unaware 	of 	Freed's 	involvement 	with
UPTE 	and had not 	really read 	the 	Daily Bruin article.
Outreach 	Testing manager Hangebrauk 	testified 	her 	review of
Freed's 	resume 	indicated 	Freed 	lacked 	recent 	chemistry
experience. 	Hangebrauk 	sent 	Freed 	an 	e-mail 	message 	stating 	she
would not 	interview Freed 	for 	that 	reason. 	Hangebrauk 	testified
she 	was 	unaware 	of 	Freed's 	involvement 	with UPTE.
Patricia 	Palmer
Patricia Palmer 	(Palmer) 	was 	a CLT with 21 years of
experience. 	She was 	active 	in the UPTE 	campaign and wore 	an UPTE
button at 	work. 	She believed her own and other supervisors 	were
aware 	of 	her 	involvement 	with UPTE.
Palmer's 	last 	evaluation 	indicated 	"Good 	Performance"
overall. 	It praised her interpersonal 	skills, 	and it 	stated her
attendance 	and 	punctuality were 	"within 	departmental
36

expectations", 	noting her total 	sick hours 	for the year were 	96.0
and her 	total 	tardy hours were 	1.3.
Palmer applied unsuccessfully 	for 	a 	career 	CLT position 	in
High Volume 	Testing. 	She 	also 	applied 	for a position 	in Outreach
Testing, 	but 	she had to cancel 	the 	scheduled interview. 	Her
resume was 	reviewed in Special 	Testing, 	but 	she 	did not 	meet 	the
minimum qualifications. 	She 	ultimately accepted a 	casual 	CLT
position.
One 	of 	the 	interview questions 	for High Volume 	Testing
asked, 	"Who are your customers?" 	The question was based on
"customer service 	training" 	all 	employees 	had been given. 	The
correct 	answer was 	supposed to be 	"Everyone." 	Palmer had
received 	the 	training 	and knew what 	the 	correct 	answer was
supposed to be. 	High Volume 	Testing manager Cobb had been one 	of
the 	trainers, 	although she had not 	trained Palmer.
For some reason, 	in the 	interview Palmer chose to say that
only patients 	and physicians were her customers, 	that 	she 	"could
care 	less" 	about management, 	and that 	she would not 	do things
management 	asked if 	she 	felt 	they were 	immoral 	or unethical.
Cobb 	found this 	answer bizarre. 	She 	and the 	two other panelists
each gave 	Palmer a 	score 	of 	0 	out 	of 	a possible 	5 	for the 	answer.
As 	a result, 	Palmer's 	total 	score 	for 	"customer service 	skill"
was 	only 12 	out 	of 	a possible 	30. 	No one with such a score under
15 was selected.
After the 	interview, 	Cobb 	checked Palmer's 	attendance
records 	for 	the previous 	ten months 	and 	found 	four or more
37

unscheduled 	absences 	within 	a 	three-month period. 	Cobb believed
this was 	inconsistent 	with Department 	work rules, 	which required
review of 	absenteeism 	in 	excess 	of 	one 	occurrence 	per month 	for
three consecutive months. 	Palmer's 	supervisor Lopez, 	who was on
the 	interview panel, 	told the other panelists 	she was unaware of
any mitigating 	circumstances 	with 	regard to 	Palmer's 	attendance.
Lopez 	had not 	told 	Palmer 	there 	was 	any attendance problem,
however.
When Palmer was 	informed she was not 	selected, 	she 	asked
senior supervisor Sunseri, 	the third panelist, 	for the basis. 	He
told her candidates were 	judged on 	three 	things: 	their
interview, 	their last 	evaluation, 	and their attendance. 	Palmer
recalled 	Sunseri 	told her 	she 	"failed all 	three." 	Sunseri
recalled he 	had only said her 	attendance was 	not 	acceptable 	and
her 	answer 	to 	the 	customer question was 	"upsetting." 	Palmer 	then
spoke 	to 	Cobb; 	she 	remembers 	Cobb telling her 	"none of 	them 	[her
interview, 	her evaluation or her attendance] 	were very good."
Palmer sent 	Cobb an e-mail 	message, 	asking 	in part 	"to discuss 	my
evaluation of 	last 	year 	that 	you 	said was 	not very good." 	Cobb
replied with a message 	stating 	she 	"did not 	recall 	telling you
that 	your evaluation was 	not 	good" 	but 	"did indicate 	that 	your
interview did not 	go well." 	Sunseri 	testified he 	regarded
Palmer's 	evaluation as 	"good," 	and Cobb's 	notes 	indicate 	she
regarded Palmer's 	evaluation as 	"All 	OK."
Cobb ultimately offered Palmer a 	casual 	CLT position, 	having
understood 	Palmer preferred that 	over 	a 	career HLT position.
38

Cobb 	testified 	she was unaware of 	Palmer's 	involvement 	with UPTE.
Sunseri 	did not 	testify whether he was 	aware; 	Lopez 	did not
testify at all.
Bhanu 	Bawal
As previously related, 	Bawal 	participated 	in meet 	and
discuss 	sessions 	in 	1997. 	She was 	also active 	in the UPTE
campaign and wore 	an UPTE button at 	work. 	She 	believed her own
and other 	supervisors 	were 	aware 	of 	her 	involvement 	with UPTE.
She was 	a CLT with nine years 	of 	service.
Bawal's 	situation in 	this 	case 	is 	somewhat 	different 	from
the 	other 	individual 	employees 	in that 	it 	is 	alleged 	she 	suffered
retaliation before 	as well 	as 	during the 	rehire process.
Specifically, 	it 	is 	alleged she was 	issued a disciplinary
reduction in salary on December 23, 	1996, 	because of grievances
and UPTE activities 	in 1996.
Bawal 	received 	a warning 	letter 	from 	supervisor 	Eileen
Whalen 	(Whalen) 	on January 10, 	1996. 	The 	letter criticized
Bawal's 	"Interpersonal 	Relationships," 	mentioning a 	co-worker who
had portrayed Bawal 	as 	"bossy" 	and 	"lording it 	over" 	her. 	Bawal
grieved the warning letter. 	On April 	10, 	1996, 	Bawal 	received an
evaluation signed by Whalen on March 25, 	1996, 	and by senior
supervisor Ana Reyes 	(Reyes) 	on April 	2, 	1996. 	Although the
evaluation 	indicated 	"Good Performance" 	overall, 	it 	also 	stated
Bawal 	"Does not meet 	standards" 	in 	"Interpersonal 	Relationships"
and mentioned 	"Documentation 	in Employee's 	file." 	Bawal 	also
grieved 	this 	evaluation.
39

Meanwhile, 	on April 	1, 	1996, 	UPTE requested a meet and
discuss 	session on 	issues 	in 	the 	Toxicology 	section where 	Bawal
worked. 	A session was held on May 15, 	1996, 	and Bawal, 	Whalen
and Reyes were all present. 	On July 10, 	1996, 	UPTE requested
another such session, 	and one was 	held later that month, 	with
Bawal, 	Whalen and Reyes again present.
A third meet 	and discuss 	session was 	held on December 	5,
1996. 	Bhanu and Reyes were present, 	but Whalen was not. 	One
issue 	at 	the 	session was 	the 	transition between shifts. 	Bawal
mentioned 	she 	had once worked 	late 	without 	overtime 	compensation,
when someone on the next 	shift was 	late. 	After the 	session,
Reyes went 	to Whalen and asked 	if 	she was 	aware 	of 	uncompensated
overtime 	in her section; 	Whalen said she was not.
Reyes 	and Whalen then 	called Bawal 	into a meeting 	and 	asked
her 	about 	the 	overtime 	incident. 	Bawal 	said it 	had happened two
years 	earlier. 	Bawal 	testified Whalen then 	said 	"you cannot 	go
to 	these meetings 	and say things 	like 	this which will 	look 	as 	if
we 	are 	not 	doing our 	job right." 	Whalen denied she 	had been
critical 	of Bawal 	in this 	regard, 	and Reyes 	denied she 	and Whalen
were 	concerned 	that 	the 	overtime 	incident 	reflected badly on
them. 	At 	some point, 	Reyes 	or Whalen sent 	an e-mail message 	to
employees 	acknowledging, 	"I 	have 	found out 	that 	one 	technologist
stayed over on a Saturday approx. 	2 years 	ago."
A 	few days 	later Reyes 	sent 	Bawal 	an 	e-mail 	message 	about 	a
shipment 	of 	paper 	towels 	Bawal 	had offered to put 	away on
December 10, 	1996. 	Reyes, 	who could only find two packages,
40

asked Bawal, 	"Are we 	looking in the wrong places?" 	Bawal
testified 	she 	interpreted 	this 	as 	her being 	"asked 	to 	justify
[the] 	disappearance of paper towels," 	and this 	caused her real
concern. 	Bawal 	replied with an 	e-mail 	indicating 	the 	locations
of the towels.
On December 23, 	1996, 	Bawal received a notice of 	intent 	to
issue 	a disciplinary temporary salary reduction, 	for a 	total 	of
three 	days 	salary over four weeks, 	due 	to 	"your continued
unsatisfactory 	interaction with your 	co-workers." 	The 	notice 	was
issued by Whalen with 	the 	approval 	of 	Reyes 	and manager McGinley.
The notice cited incidents on December 9 	and 11, 	1996, 	as well as
the warning letter of January 10, 	1996, 	and the evaluation of
April 	10, 	1996. 	Bawal had a right to respond to the notice, 	and
she 	did so, 	but Whalen decided to proceed with the 	temporary
salary reduction, 	which Bawal 	then grieved.
Bawal's 	grievances 	concerning 	the 	warning 	letter 	and 	the
evaluation ultimately went 	before 	an 	independent 	party 	reviewer.
On March 27, 	1997, 	the reviewer determined the warning letter
"lacked a 	sufficient 	factual 	base" 	and the performance 	evaluation
similarly 	"lacks 	substantiation." 	On April 21, 	1997, 	the vice
provost 	accepted 	the 	reviewer's 	determinations 	and 	ordered
removal 	of 	the 	warning 	letter 	and partial 	deletion 	of 	the
evaluation. 	The vice provost 	also 	concluded that 	"[a]bsent 	the
prior 	discipline" 	the 	temporary 	salary reduction 	"should more
appropriately remain as 	a verbal 	counseling" 	and that 	Bawal
should 	therefore 	be 	reimbursed.
41

Before 	the vice provost's 	decision, 	Bawal went 	through the
layoff 	and rehire process. 	She 	applied unsuccessfully 	for CLT
and/or HLT positions 	in four units: 	Brentwood, 	High Volume
Testing, 	Special 	Testing and Outreach Testing.
Brentwood manager Garcia 	testified Bawal 	was 	not 	granted 	an
interview because 	it 	appeared 	from her resume 	she 	lacked 	recent
experience 	on the 	instrumentation used 	in Brentwood. 	Bawal 	was
sent 	an 	e-mail 	message 	drawing her 	attention 	to 	the 	requirement
of 	recent 	experience. 	Garcia 	testified she was unaware 	at 	that
time 	of 	Bawal's 	involvement 	with UPTE.
High Volume 	Testing manager Cobb 	testified Bawal 	was 	not
selected 	as 	a 	CLT because 	her 	license 	was 	limited to 	chemistry.
Bawal 	was 	licensed as 	a Clinical 	Chemist 	Scientist, 	while 	the
High Volume 	Testing 	job 	description 	specified a 	Clinical
Laboratory Scientist 	license, 	which is more 	flexible. 	Cobb
acknowledged one 	CLT with a 	limited 	license 	was 	selected 	"because
he 	had special 	expertise 	in donor 	testing 	and was 	our 	key person
on performing all 	the blood donor testing 	in the Unit," 	which was
"basically a 	full 	time 	job 	for one 	individual."
Cobb testified Bawal 	was 	not 	selected as 	an HLT because 	of
the 	evaluation 	and 	other 	documentation 	regarding 	her
interpersonal 	skills. 	Cobb also testified she was unaware of
Bawal's 	involvement 	with UPTE.
Special 	Testing manager McGinley 	testified 	Bawal 	was 	not
interviewed because 	of 	the 	evaluation, 	warning 	letter and
disciplinary action 	in Bawal's 	file. 	McGinley was 	aware 	of 	these
42

items 	because 	she was 	Bawal's 	manager 	and had approved 	the
disciplinary action. 	McGinley therefore 	felt 	Bawal 	did not 	meet
the 	job 	description requirements 	for 	communication 	skills,
interpersonal 	skills, 	commitment 	to customer service 	requirements
(including 	"in-house and coworkers"), 	and ability to work as a
team member.
McGinley was 	aware 	Bawal's 	grievances were pending. 	She
checked with Human Resources 	and was 	told not 	to 	interview Bawal.
Gardner 	testified documents 	that 	are 	subject 	to grievances 	are
typically regarded as 	"live" 	and may be 	considered 	in employment
decisions. 	McGinley told Bawal 	why she was 	not 	interviewed.
McGinley acknowledged 	she was 	aware 	of 	Bawal's 	involvement
in the meet 	and discuss 	sessions but 	denied it was 	a 	factor 	in
her decision not 	to 	interview Bawal. 	McGinley later became 	aware
Bawal 	had only a 	chemistry license, 	while 	the 	job description
specified a 	Clinical 	Laboratory Scientist 	license 	or 	a 	Clinical
Toxicologist 	license.
Outreach 	Testing manager 	Hangebrauk 	testified 	she
interviewed Bawal 	for an HLT position. 	After the 	interview,
which went well, 	Hangebrauk reviewed Bawal's personnel 	file. 	The
evaluation 	and other 	documentation 	led her 	to believe 	Bawal 	had
problems with 	interpersonal 	relationships, 	and this 	led her not
to 	select 	Bawal. 	She 	informed Bawal 	only that 	"more 	qualified
applicants" 	had been 	selected. 	She 	testified she was unaware of
Bawal's 	involvement 	with UPTE.
43

On April 	21, 	1997, 	when the vice provost overturned the
adverse actions 	against Bawal, 	he 	further stated as 	follows:
During the 	imminent 	restructuring 	of 	the
Department 	of 	Pathology and 	Clinical
Laboratory Medicine, 	I 	have been informed
that Ms. 	Bawal was 	denied an interview for
any vacant 	CLT positions 	and was 	subsequently
laid off on March 31, 	1997, 	based on the
adverse 	actions 	in her file. 	Once removed,
Ms. 	Bawal 	should be given the opportunity to
interview and, 	if qualified, 	should be
selected with preference 	for a vacant 	career
position in Clinical Labs. 	This 	is to hereby
request 	that 	the 	Human Resources 	Department
assist 	the 	hiring managers 	in the preference
selection process.
Based on the above, 	I 	expect these actions 	to
be 	concluded within 	thirty days.
On April 	30, 	1997, 	the University issued a list of current
job opportunities 	that 	included two Brentwood CLT positions, 	one
career and one 	casual. 	Bawal 	expressed 	interest 	in 	the 	career
position, 	but 	she got 	a message back that 	she did not meet 	the
minimum qualifications. 	She wrote 	a 	letter to the vice provost,
and she 	then got 	a call 	telling her the 	job did not 	exist. 	Allin
ended up getting the 	casual position 	in Brentwood, 	but 	Bawal 	did
not 	get 	a position.
ISSUES
1. 	Did the University 	fail 	to meet 	and discuss 	in good
faith?
2. 	Did 	the 	University retaliate 	against 	charging parties
collectively, 	by laying all 	of 	them off?
3. 	Did the 	University retaliate 	against 	charging parties
individually during 	the 	rehire 	process?
44

4. 	Did the 	University retaliate 	against 	charging party
Bawal 	in particular?
CONCLUSIONS 	OF 	LAW
Meet 	and 	Discuss 	Obligation
HEERA section 	3 565 	gives 	higher education employees 	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."
HEERA section 	3567 	gives 	"[a]ny employee 	or group 	of 	employees"
the 	right 	"either 	individually or 	through a 	representative 	of
their own choosing" 	to 	"present 	grievances 	to the 	employer and
have 	such grievances 	adjusted." 	An 	employer's 	interference 	with
these or other employee rights violates HEERA section 3571(a).
In Regents 	of University of 	California v. 	Public Employment
Relations Bd. 	(1985) 	168 Cal.App.3d 937, 	945 	[214 Cal.Rptr. 	698],
the 	court 	held HEERA section 	3565 	meant 	employees 	had a 	right 	to
be 	represented by a nonexclusive 	representative, 	in 	the 	absence
of 	a 	certified exclusive 	representative. 	The 	court 	further held
an employer 	therefore 	"notifies 	individual 	employees 	of 	proposed
changes 	in employment 	conditions 	and, 	if 	the employee 	chooses 	to
have 	his 	or her union meet 	with the 	employer to discuss 	the
changes, 	such meetings are held upon request." 	(Ibid.) 	Such
meetings 	may be 	called meet 	and discuss 	sessions.
An employer's 	duty to meet 	and discuss 	with a 	nonexclusive
representative 	is 	different 	from 	its 	duty to meet 	and confer with
an exclusive 	representative under HEERA section 3570. 	Unlike
45

meeting 	and 	conferring, 	meeting 	and discussing need not 	continue
until 	agreement 	or impasse. 	(Regents 	of 	the University of
California 	(1990) 	PERB Decision No. 	829-H.) 	Under some
circumstances, 	it may be 	enough for the nonexclusive
representative 	to 	have 	an opportunity to present 	its 	alternatives
and 	the 	rationale 	therefore 	to 	someone with authority to 	respond.
(Ibid.)
Whether an employer has 	satisfied 	its 	meet 	and discuss
obligation is 	determined on a case-by-case basis. 	(Ibid.) 	Three
touchstones have been recognized, 	however: 	(1) 	notice before the
employer's decision is 	final 	or implemented, 	(2) 	reasonable 	time
and opportunity 	for meeting and discussing, 	between 	the 	notice
and the 	final 	decision or 	implementation, 	and 	(3) 	good faith
conduct 	in 	listening 	to and considering proposals. 	(Regents 	of
the University of California) 	(1990) 	PERB Decision No. 	842-H.)
PERB 	has 	not 	specifically discussed the 	role 	of 	information
in the meet 	and discuss process. 	PERB has 	long recognized that
in meeting and 	conferring 	an 	exclusive 	representative 	has 	a 	right
to 	request 	and receive 	relevant 	information. 	(Trustees 	of 	the
California State University 	(1987) 	PERB Decision No. 	613-H.) 	An
employer's 	failure 	or 	refusal 	to provide 	such 	information 	is
enough in 	itself 	to violate 	the 	duty to meet 	and confer. 	(Ibid.)
In the 	context 	of grievance processing, 	PERB has 	recognized
a nonexclusive 	representative 	also 	has 	a 	right 	to 	relevant
information. 	In Santa Monica Community College 	District 	(1979)
PERB Decision No. 	103 	(Santa Monica), 	PERB stated as follows:
46

A nonexclusive 	representative's 	right 	to
present 	grievances would be meaningless 	if
the 	employer were 	under no 	duty to provide
information it 	possesses 	and which is
relevant 	to 	the 	evaluation 	and/or processing
of the grievance. 	Accordingly, 	a necessary
corollary to the 	duty of 	the 	employer 	to
engage 	in 	such grievance 	resolution 	is 	the
duty 	to 	furnish 	information necessary 	for 	the
nonexclusive 	representative 	to provide
effective representation. 	. 	. 	.
Although 	this 	case 	arose 	under 	the 	Educational 	Employment
Relations Act 	(EERA)2 and in the grievance context, 	its rationale
also 	applies 	to 	the meet 	and discuss process under HEERA.
In Santa Monica, 	PERB was 	interpreting the 	specific
statutory right 	of 	a nonexclusive 	representative 	to 	represent
employees under EERA section 	3543.1. 	HEERA does 	not 	give 	that
specific 	statutory right 	to a nonexclusive representative, 	but,
as noted above, 	it does give employees the right 	to be
represented by a nonexclusive 	representative, 	both in the
grievance process 	and in the 	meet 	and discuss process. 	Whatever
the context, 	the right of 	representation must be meaningful, 	and
the 	representation must 	have 	an opportunity to be 	effective. 	In
Santa Monica, 	PERB held a meaningful 	right 	to effective
representation necessarily 	imposes 	on 	an 	employer a 	duty to
provide 	relevant 	information. 	A meaningful 	right 	of
representation 	in 	the meet 	and discuss process 	therefore
similarly 	imposes 	a 	duty to provide 	information 	relevant 	to 	that
process. 	It 	seems 	appropriate 	to regard this duty as 	related to
the 	second touchstone 	of 	good 	faith meeting and discussing:
2EERA is 	codified at 	section 3540 	and 	following.
47

reasonable 	time 	and 	opportunity 	for meeting 	and 	discussing,
between notice 	and 	final 	decision or 	implementation.
HEERA section 	3562(q)(1) 	states 	the 	scope 	of 	representation
for employees 	of 	the University shall 	not 	include:
Consideration of the merits, 	necessity, 	or
organization of any service, 	activity, 	or
program 	established by 	law 	or 	resolution 	of
the regents or the directors, 	except 	for the
terms 	and conditions 	of 	employment 	of
employees 	who may be 	affected thereby.
In the present 	case, 	therefore, 	the University did not have a
duty to meet 	and discuss 	in themselves 	the 	decisions 	about 	the
organization of 	the 	Department 	and 	the 	number of 	employees 	needed
by the 	reorganized Department. 	(Cf. 	Newman-Crows 	Landing Unified
School District 	(1982) 	PERB Decision No. 	223.) 	The University
did have 	a duty, 	however, 	to meet 	and discuss the effects of
those decisions on employees, 	including, 	most crucially, 	how
employees would be 	selected for layoff. 	(Cf. 	Healdsburg Union
High School District 	(1984) 	PERB Decision No. 	375.)
With regard to 	the 	first 	and third touchstones, 	the
University's 	conduct 	looks 	like 	good 	faith meeting 	and
discussing. 	The University did give 	employees 	notice 	at 	a 	time
when 	the 	University's 	decision was 	apparently not 	yet 	final 	or
implemented. 	The memo of December 19, 	1996, 	informed employees
as 	to the 	"the direction we 	[of 	the University] 	intend to take"
and what 	"would" 	happen. 	The memo did not 	describe 	a 	foregone
conclusion 	or 	an 	accomplished 	fact.
With regard to 	the 	third touchstone, 	the University was
apparently prepared 	to 	listen 	to 	and consider UPTE's 	proposals.
48

According to Gardner's undisputed testimony, 	she 	and Stanton
consulted with other 	top management 	about 	the 	meet 	and discuss
sessions. 	Fried acknowledged Gardner 	and 	Stanton 	said 	"that 	they
would 	listen" 	and 	in 	fact 	"heard what 	we 	had to 	say." 	Fried
further 	testified 	that 	"nothing 	changed," 	but 	an employer's
decision not 	to 	change 	a proposed 	action does 	not 	show bad 	faith
in meeting 	and discussing.
It 	is 	the 	second touchstone 	that 	is 	crucial 	in this 	case:
whether 	there 	was 	reasonable 	time 	and opportunity 	for meeting and
discussing, 	between notice 	and 	final 	decision or 	implementation.
The 	University has 	taken 	the 	position 	there was 	plenty of 	time
for meeting and discussing between December 	1996, 	when notice was
given, 	and March 1997, 	when the layoffs were effective. 	With
regard to meeting and discussing 	the 	after-effects 	of 	the 	layoffs
(for example, 	their effect 	on the workload of the 	remaining
employees), 	the University's position seems reasonable.
Not 	all 	the negotiable 	effects of 	the 	layoffs were 	after-
effects, 	however. 	As stated above, 	one of the most 	crucial
effects 	was 	how employees would be 	selected 	for 	layoff. 	The
University's 	decision was 	that 	all 	employees would be 	subject 	to
layoff 	unless 	they 	successfully 	competed 	for 	the 	newly-defined
positions. 	The University acted to 	implement 	that 	decision when
it 	issued 	layoff 	letters 	to all 	employees 	and posted the
positions 	for which they had to compete. 	For specialists 	and
senior specialists, 	those 	actions 	took place on January 7 	and 17,
49

1997. 	For CLTs, 	those actions 	took place on January 31 	and
February 7, 	1997.
Once 	the 	University had 	issued 	the 	layoff 	letters 	and posted
the positions, 	the University had committed its 	resources 	to 	the
layoff and rehire process. 	From that point 	on, 	University
managers 	needed to 	focus 	on completing the massive project, 	and
employees 	needed 	to 	focus 	either on getting 	rehired or on
developing their other alternatives 	(such as 	retirement). 	Under
these 	circumstances, 	the 	time 	and opportunity 	for meaningful
meeting 	and 	discussing 	about 	how employees 	would be 	selected 	for
layoff was past. 	In 	fact, 	no meet 	and discuss 	sessions did take
place 	for a month once 	the 	newly-defined 	CLT positions 	were
posted.
The 	time between the notice of December 19, 	1996, 	and the
layoff 	letters 	and postings was 	short. 	This was 	especially true
with regard to 	the 	specialists, 	for whom layoff 	letters were
issued on January 7, 	1997, 	just 	19 days after notice, 	and for
whom positions were posted on January 17, 	1997, 	just 	29 days
after notice. 	This 	amount 	of 	time was 	short 	even by Gardner's
own standards, 	as 	she typically gave UPTE and employees 	3 0 	days
notice prior to 	implementing a 	change.
With regard to the CLTs, 	the 	time was 	somewhat 	longer: 	42
days before the layoff letters, 	and 4 9 days before the postings.
Various 	factors, 	however, 	limited even this 	longer period of 	time
as 	an 	opportunity 	for meaningful 	meeting 	and discussing.
50

An 	obvious 	factor was 	the 	holiday period at 	the 	end of 	1996
and the 	beginning of 	1997. 	Gardner was 	available 	for meeting and
discussing only one 	day 	(December 	27) 	in the 	two-week holiday
period. 	Fried was 	apparently not 	available until 	January 	10,
1997. 	Predictably, 	a number of 	the 	affected employees would also
be unavailable 	for at 	least 	some of 	the holiday period. 	In fact,
no meeting and discussing took place until 	January 2, 	1997.
Another 	factor was 	the 	magnitude 	of what 	the University was
proposing to do. 	The University was 	not 	merely proposing to
layoff 	some 	junior employees, 	or to 	change an ordinary working
condition; 	the University was proposing to put 	at 	risk the
careers 	of 	an entire 	Department 	of 	employees. 	A proposal 	of 	this
magnitude requires more 	time 	for meaningful 	discussion. 	In 	fact,
University management 	apparently 	continued 	to discuss 	the
proposal 	internally 	for more 	than 	two months 	after 	the 	October 	7
"pros 	and cons" 	document 	said there 	seemed to be 	"no 	other
option."
A related 	factor was 	the 	element 	of 	surprise. 	The 	affected
employees 	had 	reason 	to 	suspect 	the 	reorganization might 	result
in 	some 	layoffs. 	They also had reason to know their managers 	had
competed 	for newly-defined positions 	in the 	summer of 	1996. 	They
had no reason to suspect, 	however, 	that 	a similar procedure might
apply to them. 	The 	PPSM, 	which did not 	cover managers, 	provided
for 	layoff 	based on 	seniority, 	and it 	apparently had never been
interpreted as 	authorizing the 	University 	to 	layoff 	all 	the
employees 	in 	a department 	and make 	them reapply 	for employment
51

without 	regard 	for 	seniority. 	At 	the meet 	and discuss 	session of
August 	19, 	1996, 	when the University reported on the 	selection of
managers, 	Gardner said any layoffs would be 	"by the book" 	(the
PSSM) 	and would involve 	"review of 	seniority." 	Gardner
apparently never 	corrected 	the 	impression 	that 	layoffs 	would be
based on 	seniority until 	the 	December 	19 	memo 	indicated
otherwise. 	Thus, 	as 	far as UPTE and the employees were
concerned, 	the 	layoff 	and rehire procedure 	in the December 19
memo 	came 	out 	of 	nowhere. 	They had no 	reason to be prepared to
discuss 	such a proposal, 	and they would need some 	time 	to
understand 	it 	and respond to 	it.
Another 	factor was 	lack of 	information. 	As 	noted above,
PERB 	has 	held 	a meaningful 	right 	to 	effective 	representation
includes 	a right 	to relevant 	information. 	Although in some 	cases
the University was 	reasonably responsive 	to UPTE'S 	requests 	for
information, 	in other cases 	it was not. 	For example, 	Fried first
requested the 	current 	(old) 	job descriptions 	for senior
specialists 	on December 11, 	1996 	(even before the December 19
memo). 	Gardner was 	sufficiently familiar with these 	job
descriptions 	that 	at 	the meet 	and discuss 	session on January 16,
1997, 	she could represent 	they were changing 20 percent. 	Gardner
did not 	actually provide 	these 	job 	descriptions 	until 	the 	week 	of
February 18, 	1997, 	however. 	This was over two months after the
initial 	request, 	at 	least 	six weeks 	after the University issued
layoff letters to all senior specialists 	(on January 27, 	1997),
and 	over 	a 	month 	after 	the 	newly-defined 	senior 	specialist
52

positions were posted 	(on January 17, 	1997). 	Thus, 	by the time
the 	information was provided, 	it 	had lost 	its value 	for
meaningful 	meeting 	and discussing 	about 	how 	senior 	specialists
would be 	selected 	for 	layoff.
Similarly, 	Fried requested the current 	(old) 	CLT job
descriptions on January 13, 	1997. 	Gardner provided these 	job
descriptions 	the week of February 18, 	1997, 	over five weeks 	after
the 	request, 	over two weeks 	after the University issued 	layoff
letters to all CLTs 	(on January 31, 	1998), 	and over ten days
after 	the 	newly-defined CLT positions 	were 	posted 	(on 	February 	7,
1997). 	Again, 	the 	information had lost 	its value for meaningful
meeting 	and 	discussing.
In meeting and discussing the 	effects 	of 	layoffs, 	few items
of 	information 	could be more 	relevant 	and necessary than 	the
number of possible 	layoffs. 	Fried began seeking this 	information
on December 11, 	1996, 	when he asked how many employees 	"could
possibly" 	lose their jobs. 	On January 13, 	1997, 	Fried followed
up by requesting the 	"projected" 	loss 	of 	FTE 	jobs. 	Gardner did
not provide the information until March 12, 	1997, 	over three
months 	after 	the 	first 	request 	and almost 	2 	months 	after 	the
second.3 Gardner provided 	this 	information 	only when 	the 	numbers
were 	finalized, 	even though the 	requests 	clearly asked for
possible 	or projected numbers. 	I 	do not believe 	the University
entered the 	layoff 	and rehire process without 	some 	knowledge 	of
3Gardner did provide 	some 	information on February 13, 	1997,
when 	she 	said 	"approximately 	110 	CLT vacancies were posted."
53

the possible or projected number of 	jobs 	to be 	lost; 	the
University did not 	demonstrate 	why 	it 	could not 	share 	that
knowledge with UPTE.
The University seems 	to have 	acted on the view that 	it 	was
obliged 	to 	provide 	requested 	information 	only when 	the
information was 	final, 	even if 	the 	information had lost 	its value
for meaningful 	meeting and discussing by the 	time 	it 	was 	final.
Thus, 	for example, 	Fried requested 	"proposed" 	job descriptions
for senior specialists on December 11, 	1997, 	but Gardner did not
provide 	these 	job descriptions until 	over five weeks 	later, 	on
January 17, 	1997, 	when they were 	finalized and posted.4 The
evidence 	showed these 	descriptions were 	in various 	stages 	of
drafting and approval 	in October, 	November and December of 	1996.
Fried had requested 	"proposed" 	job descriptions, 	not 	final 	ones,
and 	the 	University did not 	demonstrate 	why 	it 	could not 	have
provided UPTE with 	the 	job descriptions 	that 	were 	being proposed,
before 	they were 	final.
I 	conclude 	that 	in the present 	case 	the University failed to
satisfy its 	obligation to meet 	and discuss 	in good 	faith. 	The
University 	failed 	to provide 	reasonable 	time 	for meeting 	and
discussing before 	implementing 	its 	very 	significant 	and
surprising 	layoff 	and rehire 	program. 	The University also 	failed
to provide 	reasonable 	opportunity 	for meeting and discussing, 	by
failing 	to provide 	relevant 	requested 	information before
4Actually, 	Gardner provided UPTE with 	incomplete 	job
descriptions, 	until 	the mistake was 	caught 	and corrected at 	the
end 	of 	January.
54

implementation. 	The 	University's 	conduct 	interfered with 	the
right 	of 	employees 	to be 	represented, 	in violation of HEERA
section 3571 (a) .5
Retaliatory 	Layoff
In order 	to prevail 	on a 	retaliatory adverse 	action charge,
a 	charging party must 	establish an employee 	was 	engaged 	in
protected activity, 	the activities were known to the employer,
and 	the 	employer 	took 	adverse 	action because 	of 	the 	activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).) 	Unlawful motivation 	is 	essential 	to a charging
party's 	case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be drawn 	from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following 	it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse 	action 	in
relation 	to 	the 	exercise 	of 	the 	protected 	activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
1 1
5The 	complaint 	also 	alleges 	the 	University denied UPTE's
rights, 	in violation of HEERA section 3571(b). 	In Regents of the
University of 	California v. 	Public 	Employment 	Relations 	Bd.,
-supra, 	168 Cal.App.3d 937, 	945, 	the court held a nonexclusive
representative's 	rights 	to represent 	are derivative, 	not
independent. 	Since 	then, 	PERB has not 	found that 	a 	failure 	to
meet 	and discuss violated HEERA section 3571(b). 	I 	see no
particular 	reason to 	do 	so 	in the present 	case.
55

No. 	459-S); 	departure from established procedures or standards
(Santa Clara Unified School District 	(1979) 	PERB Decision No.
104); 	inconsistent 	or contradictory justification 	for its 	actions
(State of 	California 	(Department of 	Parks 	and Recreation) 	(1983)
PERB Decision No. 	328-S); 	or employer animosity toward union
activists 	(Cupertino Union Elementary School 	District 	(1986) 	PERB
Decision No. 	572 	(Cupertino)).
In the present 	case, 	the 	complaint 	alleges 	the University
retaliated against 	charging parties 	collectively, 	by laying 	all
of them off, 	along with the rest of the Department. 	Such an
allegation 	is 	not 	unprecedented or 	inherently implausible. 	In
Cupertino, 	PERB 	found a prima 	facie 	case of 	retaliation 	in
allegations 	that 	an 	employer 	implemented a 	layoff 	targeting 	a
particular department 	because 	of 	a 	high number 	of 	union 	activists
in the department. 	In such a case, 	the burden is 	still 	on a
charging party to establish all 	the 	elements 	of 	retaliation,
including 	an 	inference 	of 	unlawful 	motivation.
In the present 	case, 	charging parties have established some
elements 	of 	a prima 	facie 	case. 	Charging parties 	engaged in
protected activities, 	including the UPTE campaign, 	and University
management 	had at 	least general 	knowledge of 	the 	activities. 	The
layoffs 	occurred 	in 	the 	midst 	of 	the 	UPTE 	campaign 	and departed
from the 	established 	PPSM procedures 	of 	layoff 	by 	seniority.
I 	nonetheless 	conclude 	charging parties 	have 	not 	established
an inference, 	on the 	record as 	a whole, 	that 	the 	layoffs were
unlawfully motivated. 	Unlike 	the allegations 	in Cupertino, 	the
- -
56

evidence 	here 	did not 	show a particularly 	antagonistic
relationship between management 	and 	the 	employees'
representative. 	There had been issues 	and disputes between the
University and UPTE, 	but 	it 	appears 	both sides 	had addressed them
in a professional manner. 	There was no evidence 	the University
showed 	animosity 	toward union 	activism 	in 	general 	or 	toward 	the
UPTE 	campaign 	in particular.
Furthermore, 	the layoffs 	in the present case, 	unlike the
layoffs 	alleged in Cupertino, 	were not well-suited to a
retaliatory purpose. 	In Cupertino it was 	alleged the 	effect 	of
the 	layoff was 	"to completely lay off, 	out 	the door, 	virtually
every Facilities 	member of 	the 	Union/District 	Personnel 	Committee
[emphasis 	in the original]" 	as well as 	several other union
activists. 	In the present 	case, 	no union activists were
necessarily 	"out 	the door" 	because of 	the 	layoffs, 	because 	they
all 	had at 	least 	a 	theoretical 	opportunity to be 	rehired 	into 	the
newly-defined positions. 	In fact, 	the great majority of 	laid-off
employees, 	including the great majority of UPTE members, 	were
rehired without 	loss of 	status.
The 	layoff 	and 	rehire process 	involved an 	extraordinary
amount 	of 	effort 	for University management, 	as well 	as 	an
extraordinary amount 	of 	trauma 	for employees. 	The University
could have 	anticipated that 	the 	effort 	and trauma would 	result 	in
employees 	neglecting or abandoning the UPTE 	campaign. 	The
University could also have anticipated, 	however, 	that 	the effort
and 	trauma would result 	in employees 	seeing 	the 	UPTE 	campaign as
-
57

an absolutely necessary means 	of 	protecting 	themselves 	in 	the
future. 	On the record as a whole, 	I 	do not 	find sufficient basis
for 	inferring that 	the University sought 	either result, 	or that
the 	Department-wide 	layoffs 	were 	otherwise 	unlawfully motivated.
Retaliatory 	Failure 	to 	Rehire
Charging parties point 	out 	that 	of 	the 	43 	employees
adversely affected by the 	layoff 	and rehire 	process 	(as 	of
April 3, 	1997), 	51 percent were UPTE members, 	although only
29 percent of 	the 22 0 HX employees 	in the Department were UPTE
members. 	To UPTE these 	figures 	are 	cause 	for concern. 	The
question 	is 	whether 	they are 	legally relevant.
If 	statistically significant, 	these 	figures would be 	legally
relevant 	in 	a 	discrimination 	case 	based on 	an 	adverse 	impact
theory. 	This 	is not 	such a case, 	however, 	because adverse impact
is 	not 	a 	recognized theory 	in HEERA discrimination 	law. 	On 	the
contrary, 	as noted above, 	actual unlawful motivation is 	essential
in a HEERA discrimination case.
If 	statistically significant, 	the 	figures might 	also be
legally relevant 	if 	all 	the 	rehire 	decisions 	had been made 	by one
decisionmaker 	(either an individual 	or a group). 	One might 	then
have 	a basis 	to 	infer the 	one 	decisionmaker had an 	anti-union
bias 	(in the absence of other explanations 	for the 	figures). 	In
the present 	case, 	however, 	the evidence 	showed no single
decisionmaker, 	but 	rather 	separate 	decisionmakers making 	separate
decisions 	for each unit. 	There are no 	figures 	in evidence
58

sufficient 	to 	support 	an 	inference 	of bias 	on the part 	of 	any of
those 	separate 	decisionmakers.
There 	thus 	seems 	to be 	no 	real 	alternative 	to 	looking at 	the
individual 	rehiring decisions 	for 	evidence 	of 	unlawful
motivation. 	The 	findings of 	fact 	cover over 2 0 	separate 	rehiring
decisions affecting 7 	separate 	employees. 	(See pages 	28 	to 45
above.) 	Without 	restating those 	findings, 	let 	it 	suffice to say
that 	in no 	instance 	does 	the 	circumstantial 	evidence 	justify an
inference 	of unlawful motivation. 	Some 	reasons 	for the 	rehiring
decisions may seem petty or unfair, 	and some may not 	have been
well-communicated to the 	employees, 	but 	they do not 	appear
pretextual. 	The managers who ran the 	rehire process 	testified
credibly 	that 	they had only 	limited 	knowledge 	of 	individual
employees' 	UPTE 	involvement 	and that 	any such knowledge 	did not
affect 	the decisions. 	On the record as a whole, 	I 	do not 	find
sufficient 	basis 	for 	inferring otherwise.
Retaliation Against 	Bawal
As noted above, 	Bawal's 	situation in this case is unique, 	in
that 	it 	is 	alleged 	she 	suffered retaliation before 	as well 	as
during the 	rehire process. 	It 	appears her opportunity to be
rehired was 	adversely 	affected 	by 	her 	earlier 	disciplinary
reduction in salary. 	If 	the 	reduction was 	tainted by
retaliation, 	as alleged, 	so was the 	failure to rehire her.
Bawal 	did engage 	in protected activities 	in 	1996: 	she 	filed
at 	least 	two grievances 	and participated 	in at 	least 	three meet
and discuss 	sessions. 	These protected activities 	were 	known 	to
59

her supervisors and manager 	(Whalen, 	Reyes and McGinley), 	and
these 	three 	were 	involved 	in 	issuing 	the 	allegedly retaliatory
salary reduction notice of December 23, 	1996. 	Bawal 	testified
that 	at 	a meeting earlier 	in 	the month Whalen had 	told her 	"you
cannot 	go 	to 	these 	[meet 	and discuss] 	meetings 	and 	say things
like 	this 	[about uncompensated overtime] 	which will 	look as 	if we
[Whalen and Reyes] 	are not 	doing our job right." 	If 	credited,
this 	testimony would 	support 	an 	inference 	that 	Whalen 	and Reyes
were 	hostile 	to Bawal's 	activism 	in 	the 	meet 	and discuss
sessions.
Whalen denied criticizing Bawal's activism, 	however, 	and
Reyes 	denied 	she 	and Whalen were 	concerned the 	overtime 	incident
reflected badly on 	them. 	Reyes's 	testimony 	is 	supported by the
e-mail 	message 	she 	or Whalen 	sent 	to 	employees 	acknowledging the
overtime 	incident. 	A supervisor trying 	to 	hush up 	a problem
would 	seem unlikely to 	send out 	such a message.
Bawal 	seems 	to have been particularly 	sensitive 	to any
perceived hint 	of 	criticism. 	That 	same month, 	when Reyes 	sent
Bawal 	a message asking whether she 	(Reyes) 	was 	"looking in the
wrong places" 	for paper towels, 	Bawal was concerned that 	she
(Bawal) 	was being 	"asked to justify 	[the] 	disappearance of paper
towels." 	This 	seems 	an overreaction and a misinterpretation.
With regard to both 	the paper 	towels 	and the 	overtime 	incident,
Bawal 	may have 	subjectively believed 	she 	was 	being 	criticized
when objectively she was 	not 	being 	criticized. 	I 	credit 	Bawal's
testimony about 	the 	December meeting 	as 	evidence 	of 	what 	Bawal
60

believed when 	she was questioned about 	the 	overtime 	incident, 	but
I 	also 	credit 	the 	testimony of 	Whalen and Reyes 	that 	they did not
in 	fact 	express 	hostility towards 	Bawal's 	activism.
The 	University's 	vice 	provost 	concluded 	the 	salary 	reduction
was 	inappropriate, 	and should have 	remained a verbal 	counseling,
because 	the 	earlier warning 	letter 	and 	evaluation 	lacked
sufficient 	substantiation. 	In the 	absence of 	evidence 	that 	the
salary reduction was 	otherwise 	inappropriate, 	the 	question
becomes 	whether 	the 	insufficiently 	substantiated warning 	letter
and evaluation were 	due 	to retaliation. 	If 	they were 	tainted by
retaliation, 	then so was 	the 	salary reduction, 	and ultimately so
was 	the 	failure 	to rehire.
As 	to the warning letter, 	there 	is no prima 	facie 	showing of
retaliation, 	because 	there 	is no evidence of prior protected
activity by Bawal. 	The warning 	letter was 	issued on January 	10,
1996, 	before any of 	the protected activity that 	is 	in evidence.
Whatever 	reasons 	led 	to 	the 	insufficiently 	substantiated warning
letter, 	they could not 	have 	included protected activity that 	was
yet 	to occur.
The evaluation was 	issued to Bawal on April 	10, 	1996. 	By
then, 	Bawal 	had engaged in some protected activity: 	she 	had
grieved the warning letter. 	She had not yet, 	however,
participated in a meet 	and discuss 	session, 	and there 	is no
evidence Whalen or Reyes 	knew she would do 	so.6
6In fact, 	Whalen signed the evaluation on March 25, 	1996,
while 	UPTE 	did not 	even request 	a meet 	and discuss 	session on
Toxicology section issues until April 	1, 	1996.
61

There 	is 	no particular evidence 	that 	Bawal's 	grievance 	about
the warning 	letter played a role 	in her evaluation. 	On 	the
contrary, 	it 	seems more 	reasonable 	to 	suppose 	that 	the 	reasons
which 	led 	to 	the 	warning 	letter 	itself 	(insufficiently
substantiated though it was) 	also 	led to the evaluation. 	Since
those 	reasons 	predated the 	protected activity, 	they presumably
may have 	continued 	independent 	of 	the 	protected activity. 	On 	the
record as a whole, 	I 	do not 	find sufficient basis 	to 	infer
unlawful motivation in Bawal's 	evaluation, 	or 	in her salary
reduction, 	or ultimately in the 	failure 	to rehire her.
REMEDY
HEERA section 3563.3 	gives 	PERB:
. 	. 	. 	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 back pay, 	as will 	effectuate
the policies of this chapter 	[HEERA].
In the present 	case, 	the University has been found to have
violated HEERA section 3571(a) 	by 	interfering with the 	right 	of
employees 	to be 	represented on matters within the 	scope 	of
representation. 	It 	is therefore appropriate to direct 	the
University to 	cease 	and desist 	from such 	conduct.
Charging parties 	argue 	it 	is 	also 	appropriate 	to direct 	the
University 	to 	reinstate 	with backpay 	all 	charging parties
adversely affected by the 	layoff 	and rehire process. 	Such a
remedy would 	seem appropriate 	if 	the 	adverse 	effects 	had been
shown to be 	the 	result 	of 	retaliation. 	Such a 	remedy might 	also
62

be 	appropriate 	if 	the adverse 	effects were 	the 	result 	of 	a
unilateral 	change where 	there was 	a 	duty to meet 	and confer with
an exclusive 	representative. 	In California 	State Employees'
Association v. 	Public Employment Relations Bd. 	(1996) 	51
Cal.App.4th 923, 	946 	[59 Cal.Rptr.2d 488], 	the court stated in
part:
Restoration of 	the 	status 	quo 	is 	the
normal 	remedy for a unilateral 	change 	in
working 	conditions 	or 	terms 	of 	employment
without 	permitting bargaining members'
exclusive 	representative 	an 	opportunity 	to
meet 	and confer over 	the 	decision and 	its
effects. 	(See, 	e.g., 	Oakland Unified School
Dist. 	v. 	Public Employment Relations Bd.
(1981) 	120 Cal.App.3d 1007, 	1014-1015 	[175
Cal.Rptr. 	105].) 	This is usually
accomplished by 	requiring 	the 	employer 	to
rescind the 	unilateral 	change 	and to make
employees 	"whole" 	from losses 	suffered as 	a
result 	of 	the unlawful unilateral 	change.
In the present case, 	however, 	retaliation has not been shown, 	and
there was no duty to meet 	and confer, 	because there was not yet
an 	exclusive 	representative.
In Regents of the University of California, 	supra, 	PERB
Decision No. 	842-H, 	PERB declined to order backpay 	"where 	the
entitlement 	thereto 	is 	speculative." 	PERB noted the 	outcome 	of 	a
meet 	and discuss process 	is particularly speculative, 	given there
is 	no 	requirement 	the parties 	reach agreement 	or continue 	to meet
until 	impasse. 	In the present case, 	it would be speculative to
conclude 	the 	adverse 	effects 	on 	charging parties 	would not 	have
occurred at 	all 	if 	the University had 	satisfied 	its meet 	and
discuss 	obligation.
63

It does not 	seem speculative, 	however, 	to conclude the
adverse 	effects would not 	have 	occurred so 	soon 	if 	the University
had 	satisfied 	its meet 	and discuss 	obligation. 	I 	have 	already
concluded 	the 	University 	failed 	to 	provide 	reasonable 	time 	for
meeting 	and 	discussing before 	implementing 	its 	layoff 	and 	rehire
program. 	With regard to the 	specialists, 	the University provided
almost no time, 	issuing the 	layoff 	letters only 19 	days 	after
notice 	that 	all 	specialists would be 	laid off, 	with the 	two-week
holiday period occupying almost 	all 	of 	those 	19 	days.
Faced with 	a 	very 	significant 	and 	surprising 	development,
and with 	full 	information 	slow in coming, 	UPTE 	asked that 	the
whole process 	be delayed by as much as 	120 	days. 	A delay of 	that
length 	seems 	more 	than would be 	reasonably required 	to 	complete 	a
meet and discuss process. 	I conclude, 	however, 	that 	in the
circumstances of the present 	case an additional 	3 0 	days was
reasonably 	required.
I 	note Gardner typically gave 	3 0 	days notice prior to
implementing a change. 	Had she given an additional 	3 0 	days
notice 	of 	the 	layoff 	and rehire program, 	there might 	have been a
meaningful 	opportunity 	for meeting 	and discussing before 	the
layoff 	letters were 	issued to the 	specialists, 	notwithstanding
the 	two-week 	holiday period.
I 	also note 	the University gave 	employees 	60 	days 	individual
notice of their layoffs, 	rather than the minimum 3 0 	days
specified in the 	PPSM. 	This additional 	3 0 days did increase 	the
time 	and 	opportunity 	for meeting 	and discussing 	the 	after-effects
64

of 	the 	layoffs, 	but 	it did not 	increase 	the 	time 	and opportunity
for meeting 	and discussing 	how employees 	would be 	selected 	for
layoff, 	before 	the 	layoff 	and rehire process was 	already
underway. 	An additional 	3 0 days before the 	layoff 	letters and
position postings 	could 	have 	provided 	such 	an 	opportunity.
I 	also 	note 	University management 	apparently 	continued 	to
discuss 	the 	layoff 	and rehire 	program 	internally 	for more 	than 	60
days 	after the October 7 	"pros 	and cons" 	document 	said there
seemed to be 	"no other option." 	An additional 	30 	days 	notice
could have 	given UPTE 	a 	real 	opportunity to 	join 	the 	discussion
with options 	and arguments 	of 	its 	own.
I 	therefore 	find 	it 	appropriate 	to order the University to
make 	charging parties 	"whole" 	with backpay as 	if 	the 	layoff 	and
rehire process had occurred 30 	days 	later than it 	did, 	and the
layoffs 	had therefore been effective 	3 0 	days 	later than they
were. 	Charging parties who were actually laid off, 	or who
retired rather than be laid off, 	shall 	receive 	3 0 	days backpay.
Charging parties 	who were 	reduced 	to 	lower paying positions 	shall
receive 	3 0 	days backpay for the difference 	in pay. 	Charging
parties who were 	reduced to casual 	(limited-term) 	positions 	shall
receive backpay as 	if 	the 	casual positions began 30 	days 	later
and therefore ended 3 0 days 	later. 	Charging parties 	shall
receive 	this backpay with 	interest 	at 	the 	rate 	of 	7 	percent per
annum. 	(Regents of 	the University of 	California 	(1997) 	PERB
Decision No. 	1188-H.)
65

At 	the 	beginning of 	the 	hearing 	in this matter,
Administrative 	Law 	Judge 	Thomas 	ruled 	that 	charging parties
included 	65 UPTE members, 	all 	in the HX unit 	and employed by the
Department, 	who were 	identified in the unfair practice 	charges
filed on February 10, 	1997. 	I 	see no reason to disturb that
ruling. 	The evidence 	showed 22 	of 	these 	charging parties were
adversely affected by the 	layoff 	and rehire process; 	these 	22 	are
the 	charging parties 	who 	shall 	receive 	backpay as 	described
above.
It 	is 	also appropriate 	to direct 	the University to post 	a
notice 	incorporating the 	terms 	of 	the order in this 	case.
Posting of 	such a notice, 	signed by an authorized agent 	of 	the
University, 	will 	provide 	employees with notice 	the University has
acted in an unlawful manner, 	is being required to cease 	and
desist 	from this 	activity and take 	affirmative 	remedial 	actions,
and will 	comply with the 	order. 	It 	effectuates 	the purposes 	of
HEERA that 	employees 	be 	informed both of 	the 	resolution of 	this
controversy and of 	the University's 	readiness 	to 	comply with the
ordered remedy. 	(Placerville Union School District 	(1978) 	PERB
Decision No. 	69.)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and upon the entire record in this matter, 	it 	is 	found the
Regents 	of 	the University of 	California 	(University) 	violated the
Higher Education Employer-Employee Relations Act 	(HEERA or Act),
Government 	Code 	section 3571(a) 	by interfering with the 	right 	of
66

employees 	to be 	represented on matters within 	the 	scope 	of
representation, 	by 	failing 	to provide 	reasonable 	time 	and
opportunity 	for meeting 	and discussing 	a 	layoff 	and 	rehire
program.
Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED that
the University, 	its 	governing board and its 	representatives
shall:
A. 	CEASE AND DESIST 	FROM:
Interfering with the 	rights 	of 	employees 	to be
represented on matters within 	the 	scope 	of 	representation.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF THE ACT:
1. 	Make 	"whole" 	charging parties 	adversely affected
by the 	layoff 	and 	rehire 	process 	by paying them backpay as 	if 	the
layoff 	and rehire process had occurred 3 0 	days 	later than it 	did.
Charging parties 	shall 	receive 	this 	backpay with 	interest 	at 	the
rate of 	7 percent per annum.
2. 	Within ten 	(10) 	workdays of 	the 	service of a 	final
decision 	in this matter, 	post 	at 	all work 	locations where notices
to unit 	employees 	customarily are posted, 	copies 	of 	the Notice
attached hereto 	as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the University, 	indicating the University
will 	comply with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to ensure 	the Notice 	is 	not
reduced in 	size, 	altered, 	defaced or covered with any other
material.
67

3. 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with the 	Order to 	the
San 	Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board, 	in accord with the 	regional 	director's
instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	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
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 of 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 of
Regs., 	tit. 	8, 	sec. 	32135; Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any statement 	of 	exceptions 	and 	supporting brief must 	be
served 	concurrently with 	its 	filing upon 	each party 	to 	this
68

proceeding. 	Proof 	of 	service 	shall 	accompany each copy served on
a party or filed with the Board itself. 	(See 	Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Thomas J. Allen Administrative 	Law 	Judge
69