Regents of the University of California (PERB 1428H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA LOCAL 9119,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA, LOS ANGELES,
Respondent.
Case No. LA-CE-569-H
PERB Decision No. 	1428-H
April 	19, 	2001
Appearances: 	Schwartz, Steinsapir, Dohrmann & Sommers by Michael R. Feinberg, Attorney,
for University Professional_and Technical Employees, CW A Local 9119; Leslie L. Van
Houten, University Counsel, for Regents of the University of California, Los Angeles.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: 	This case is before the Public Employment Relations Board
(Board) on appeal by the University Professional and Technical Employees, CWA Local 9119
(UPTE) from the Board agent's dismissal (attached) of its unfair practice charge. In the
charge, UPTE claimed that the University of California (UC), and specifically, the University
of California, Los Angeles (UCLA) campus, breached the neutrality required by the Higher
1HEERA is codified at Government Code section 3560 et seq. 	Section 3583.S(b) reads:
(b) The organizational security arrangement described in
subdivision (a) shall remain in effect unless it is rescinded
pursuant to subdivision (c ). The higher education employer shall
remain neutral, and shall not participate in any election conducted
under this section unless required to do so by the board.

implementation of the "fair share" requirements of Senate Bill 645.2 This breach of neutrality
aiiegediy arose from UC's refusai to censure a webpage of the UCLA Bruin Online website
created by NoFee4Me, a group of Staff Research Associates at UCLA who believe the fair
share fee is unjust, and which UTPE claimed was a competing organization.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, the warning and dismissal letters, UPTE's appeal and UC's
response. The Board finds the dismissal letter to be free from prejudicial error and adopts it as
the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-569-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
2The original unfair practice charge additionally alleged that UC supported the anti-fair
share movement at UC Irvine, UC Davis and UC San Diego, but failed to provide any specific
facts as to those campuses. These allegations were therefore dismissed ..
2

STATE OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
July 11, 2000
Michael R. Feinberg, Attorney
Schwartz, Steinsapir, Dohrmann & Sommers
63_00
Wilshire Blvd., Suite 2000
Los Angeles, CA 90048-5202
Re: 	University Professional And Technical Employees, CWA Local 9119 v. Regents
of
the
University
of
California, Los Angeles
Unfair Practice Charge No. LA-CE-569-H
DISMISSAL LETTER
Dear Mr. Feinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 18, 2000. Your charge asserts that the University
of
California (UC), specifically, the University
of
California, Los Angeles (UCLA) campus, has
breached the neutrality required by the Higher Education Employer-Employee Relations Act
(HEERA) 1 section 3583.5(b) in the implementation
of
the "fair share" requirements
of
Senate
Bill 645 (SB 645).2 The University's breach
of
neutrality has occurred by its refusal to censure
a webpage
of
the UCLA Bruin Online website. You assert this webpage was created
by
a
competing organization, NoFee4Me.
I indicated in my attached letter dated March 30, 2000, that the above-referenced charge did
not state a prima facie case. UPTE was advised that,
if
there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, it should amend
the charge. UPTE was further advised that, unless it amended the charge to state a prim.a facie
case or withdrew it prior to April 13, 2000 the charge would be dismissed.
Several extensions
of
time were granted and on May 4, 2000 an amended charge was filed.
Following receipt
of
the amended charge, we had discussions regarding the theory
of
the
charge as you saw it, in contrast to the analysis I had spelled out in my :March 30 warning
letter. I asked that you provide additional facts to support your new allegations that the
University assisted the NoFee4Me group by permitting them to use the internal University
1HEERA is codified at Government Code section 3560 et seq. The text
of
the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 You assert that UC has supported the anti-fair share movement at UC Irvine, UC
Davis and UC San Diego, but failed to provide any specific facts as to those campuses. These
allegations will therefore be dismissed.

LA-CE-569-H
July 11, 2000
Page 2
courier system to circulate documents and petitions and that the University aiiowed numbers
of
e-mail messages to be sent regarding the rescission campaign and failed to monitor employees
overuse
of
the email system during working hours. No additional facts were provided to
overcome the shortcomings spelled out in my March 30 letter.. 	The additional material you
did provide related to email usage by supporters
of
rescission at UCLA through some "intra-
mail" system at the UCLA Hospital. 	You contend that the university has a business onlyapproach to the use
of
"intra-mail", but provided no other information about the Employer's
knowledge
of
the alleged abuse
of
the "intra-mail" policy
by
pro-rescission employees. No
additional facts were provided to support the charge
..
As I advised in our phone conversation, the new allegations were not supported
by
facts to
support your theory. 	HEERA section 3568 provides employee organizations "the right to use
institutional bulletin boards, mailboxes and other means
of
communications " You have not
asserted that the University failed to provide employees supporting UPTE with the same access
that the NoFee4Me group is allegedly provided.
As discussed in my warning letter and your response, the Board's decision in Clovis Unified
School District (1984) PERB Decision No. 389, requires strict neutrality by an employer in an
election setting. In Clovis, supra, the Board reviewed aliegations
of
disparate treatment
towards one
of
the employee organizations by the employer. The unlawful activity in that case
occurred immediately prior to a representation election when the employer provided stationery,
release time, and typing and distribution
of
minutes
of
the in-house Faculty Senate without
making similar assistance available to all employee organizations. The Board went
on
to state
that the charging party/petitioner had no obligation to request similar assistance but rather that
the employer had a duty to either provide the same assistance to all employee organizations or
discontinue the practice it had established with the Faculty Senate.
The University has a policy that allows for interest groups to apply for webpage space. 	The
University does not solicit interest groups to apply for space on the Bruin Online.
It
does not
provide space to employee organizations representing University employees. The University
also has an e-mail policy that provides at Section VI.A.8:
University electronic mail services may be used for incidental
personal purposes provided that, in addition to the foregoing
constraints and conditions, such does not: (i) directly or indirectly
interfere with the University operation
of
computing facilities or
electronic mail services; (ii) burden the University with
noticeable incremental cost; or (iii) interfere with the email user's
employment or other obligations to the University.
Your theory based on Clovis is that the Employer is required to advise UPTE and all other
employee organizations that represent employees that access is being granted to webpage space
prior to the access being granted. This goes well beyond the strict neutrality requirements ofClovis. It requires the University to treat each employee or student as a potential rival
organization. This can not be viewed as the natural evolution of the Board's finding in Clovis.

LA-CE-569-H
July 11, 2000
Page 3
First, this is not an election setting. Second, the NoFee4Me group is not alleged to be an
employee organization, therefore, no additional assistance is being provided to a rival
organization. Third, there is no allegation that the Employer has applied its granting
of
webpage space in a discriminatory fashion. 	The Employer is not alleged to have denied the
use ofwebpage space to any UPTE supporter or advocate
of
agency fee.
Likewise, your assertion that the Employer by allowing employees to use the courier or email
has supported the NoFee4Me group provides no facts to support the argument
of
favoritism or
breaching a neutrality requirement. Therefore, I am dismissing the charge based on the facts
and reasons contained in this letter and my March 30, 2000 letter.
Right to Appeal
Pursuant to PERB Regulations3, you may obtain a review
of
this dismissal
of
the charge
byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

LA-CE-569-H
July 11, 2000
Page 4
If
you fiie a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a ·document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) 	The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. 	The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By 	f,(:LtRogel' Smith
Labor Relations Specialist
Attachment
cc: 	Leslie Van Houten
RCS

ST ATE OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
March 30, 2000
Cliff Fried, Executive V. P.
UPTE - CWA Local 9119
1015 Gayley Avenue, Suite 115
Los Angeles, California 90024
Re: 	University Professional And Technical Employees, CWA Local 9119
v.
Regents
of
the
University
of
California, Los Angeles
Unfair Practice Charge No. LA-CE-569-H
WARNING LETTER
Dear Mr. Fried:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 18, 2000. Your charge asserts that the University
of
California (UC), specifically, the University
of
California, Los Angeles (UCLA) campus, has
breached the neutrality required by the Higher Education Employer-Employee Relations Act
(HEERA) 1 section 3583.5(b) in the implementation
of
the "fair share" requirements
of
Senate
Bill 645 (SB 645). 2 The University's breach
of
neutrality has occurred by its refusal to censure
a webpage
of
the UCLA Bruin Online website. You assert this webpage was created
by
a
competing organization, NoFee4Me.
HEERA section 3583.5(b) states:
(b) The organizational security arrangement described in
subdivision (a) shall remain in effect unless it is rescinded
pursuant to subdivision (c
).
The higher education employer shall
remain neutral, and shall not participate in any election conducted
under this section unless required to do so by the board.
The rules as set forth in the Bruin Online Acceptable Use Policy are:
Computers and networks can provide access to resources on and
off campus, as well as the ability to communicate with other users
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 You assert that UC has supported the anti-fair share movement at UC Irvine, UC
Davis and UC San Diego, but failed to provide any specific facts as to those campuses. These
allegations will therefore be dismissed.

LA-CE-569-H
Warning Letter
Page 2
worldwide. 	Such open access is a privilege, and requires that
individuals act responsibly. Users must respect the rights
of
other
users, respect the integrity
of
the systems and related physical
resources, and observe all relevant laws, regulations, and
contractual obligations.
The Bruin Online is available for use by faculty, staff and students. 	The NoFee4Me group
consists
of
webpage account holder Toshka Abrams. Ms. Abrams is a Staff Research
Associate (SRA) for UCLA. 	She and seventeen other SRAs are listed as a group
of
employees who believe the fair share fee is unjust.
You allege that UCLA has violated its own internet policy in order to support the NoFee4 Me
group and that this is a violation
ofHEERA
section 3583.5(b). This case is analyzed as an
interference charge in that you allege that UCLA has interfered with University Professional
and Technical Employees, (UPTE) CWA Local
91
l 9's rights along with those
of
its members,
to have UCLA remain neutral regarding agency fee matters.
PERB has held that to demonstrate a prima facie case
of
interference, the charging party must
show that the respondent's conduct tends to or does resuit in some harm to employee rights
guaranteed by the HEERA. (Carlsbad Unified School District (1979) PERB Decision No.
89
at p. ·IO.; California State University (Sacramento) (1982) PERB Decision No. 211.)
Interference in this case would mean charging party demonstrating that the employer has
breached the neutrality requirement by providing assistance to one group
of
employees over
another. PERB has defined neutrality in a series
of
cases which hold that an employer may not
bestow benefits on one organization and not another. (See Clovis Unified School District
(1984) PERB Decision No. 389 (Clovis); State
of
California (1982) PERB Decision No. 198;
and Santa Monica Community College District (1979) PERB Decision No. 103.) In these
cases, the Board analyzed allegations
of
favoritism towards one employee organization over
another. In Clovis, the Board found that the employer's financial assistance to one
organization and expressed support towards the favored group was unlawful in the context
ofan election setting. However, it is not unlawful to provide support so long as it is available to
all groups. 	See Clovis.
In this case, you have asserted that UCLA has provided employees with access to the Bruin
Online website. You do not contend that the employer has denied equal access to employees
who support fair share. You have not provided any information demonstrating that UCLA
breached its required neutrality. The assertion that UC violated its own internet/e-mail policies
without more specificity does not demonstrate that UC has violated the required neutrality ofHEERA section 3583.5(b). A charging party should allege the "who, what, when, where, and
how" of an unfair practice. (United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.)
Through this charge you also assert that UCLA is supporting a rival employee organization.
To state a prima facie violation of HEERA section 3571(d), the charging party must allege
facts which demonstrate that the employer's conduct tends to interfere with the internal

LA-CE-569-H
Waming Letter
Page 3
activities
of
an empioyee organization or tends to influence the choice between empioyee
organizations. (Santa Monica Community College District (1979) PERB Decision No. 103,
(Santa Monica CCD): Redwoods Community College District (1987) PERB Decision No. 650,
(Redwoods CCD); State
of
California (Corrections) (1993) PERB Decision No. 972-S.) Proof
that an employer intended to unlawfully dominate, assist or influence employees' free choice is
not required. Nor is it necessary to prove that employees actually changed membership as a
result
of
the employer's act. (Santa Monica CCD; Redwoods CCD.) The threshold test is
"whether the employer's conduct tends to influence [free] choice or provide stimulus in one
direction or the other." (Santa Monica CCD,
p.
22.)
In Sierra Sands Unified School District (1993) PERB Decision No. 977, PERB held that a
group
of
employees contesting an agency fee provision in its contract was not an employee
organization for purposes
of
the Educational Employment Relations Act. In that case, PERB
found that the employer's denial
of
the use
of
teacher mailboxes to a group opposed to agency
fee did not violate BERA section 3543.5(b). You have provided no facts to support your
contention that NoFee4Me is a competing employee organization within the definition
of
employee organization found at HEERA section 3562 (f)(l) nor that the employer is treating
them with any preference . Therefore, you have also failed to demonstrate that UCLA
interfered with the internal activities ofUPTE in violation
of
357l(d)
..
Finally, the charge requests a remedy that UC provide UPTE "with copies
of
all information,
data or materiais it has given to the anti fair share group i.e. mailing lists, labels, discs, and so
forth (including, for example, employee home ore-mail address lists." The charge as presently
stated does not provide any information as to what violation
of
HEERA occurred or what the
theory
of
this requested remedy might be associated with. For this reason, lack
of
specificity,
this allegation must also be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts which would correct the
deficiencies explained above, please amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by the charging party. The amended charge must have the case number written on the
top right hand comer
of
the charge form. 	The amended charge must be served on the
respondent's representative and the original proof
of
service must be filed with PERB.
If
I do
not receive an amended charge or withdrawal from you before April 13, 2000, I shall dismiss
your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
~l»
Roger Smith
Labor Relations Specialist
RCS:cke