Regents of the University of California (PERB 0531H)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STUDENT EMPLOYEES' 	ASSOCIATION,
Charging 	Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case 	No. 	SF-CE-183-H
PERB Decision No. 	531-H
October 	29, 	1985
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Appearances; 	Evelyn Freitas 	for Student 	Employees' 	Association;
Edward M. 	Opton, 	Jr., 	Attorney, 	for the Regents of the University
of California.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the Public
Employment Relations 	Board 	(PERB or 	Board) 	on appeal 	of 	a
dismissal 	of 	an 	unfair practice 	charge 	filed by the 	Student
Employees' 	Association 	(SEA) 	against the Regents of the
University of 	California 	(University or U C ) .
By letter dated March 30, 	1984, 	the Board's 	regional attorney
advised SEA that 	its 	unfair practice 	charge 	failed 	to allege
sufficient 	facts 	to state a prima 	facie 	violation of 	the Higher
Education Employer-Employee 	Relations 	Act 	(HEERA or 	Act).1
For 	the reasons 	set 	forth below, 	we affirm the dismissal of
SEA's charges.
1HEERA 	is 	codified at 	Government 	Code section 	3560 	et 	seq.
e
\

FACTUAL 	SUMMARY
In his 	letter 	to 	SEA dismissing 	the 	unfair practice 	charge
and in his warning letter, 	dated March 9, 	1984, 	the Board's
regional 	attorney presents 	a 	factual 	summary which 	accurately
characterizes 	SEA's 	allegations. 	Those documents 	are attached
hereto and, 	for purposes 	of reviewing 	the dismissal, 	are adopted
by the Board as 	a summary of the 	facts 	as 	alleged.2
In sum, 	SEA charges 	that 	the University failed 	to meet and
discuss 	a plan 	to reorganize 	the 	supervisory staff 	of 	the
circulation section of 	the Moffitt 	Undergraduate Library. 	The
plan made 	student 	employees 	ineligible 	for 	two 	library assistant
classifications 	and, 	according to SEA's 	charge, 	thereby
eliminated 	the past practice of promoting 	student 	employees 	to
certain supervisory positions. 	SEA also claims 	that 	the
University 	improperly 	revised 	an 	employee 	pamphlet 	and
discriminated against 	employees 	active 	in 	SEA.
DISCUSSION
In the 	instant 	appeal, 	SEA takes 	issue with the 	regional
attorney's 	conclusion 	that 	the charge 	is 	deficient because 	SEA
failed 	to 	allege 	that 	it 	existed as 	an employee organization at
the 	time 	UC enacted 	the 	reorganization plan. 	Although 	SEA admits
in 	its 	appeal 	that 	the actions 	taken by the 	University were
2For 	purposes 	of our 	review of 	the dismissal, 	the 	factual
allegations 	are presumed 	to be 	true. 	San Juan 	Unified 	School
District 	(1977) 	EERB Decision No. 	12. 	(Prior to January 1, 	1980,
PERB was 	known as 	the 	Educational 	Employment 	Relations 	Board.)
22

adverse 	to another 	employee organization, 	the 	California 	State
Employees' 	Association 	(CSEA), 	it further contends that, 	at the
same 	time CSEA was 	dissolving 	its 	UC chapters, 	those 	employees
affected 	by 	the 	University's 	actions 	organized 	SEA in order 	to
represent 	the 	"aggrieved" 	employees.
According 	to the 	factual 	allegations 	in 	the 	charge 	and 	the
documents 	attached 	thereto, 	all Moffitt 	Library circulation 	staff
were 	advised 	that 	management 	was 	considering 	the 	reorganization
by letter dated July 27, 	1983 	from Janice Koyama, 	Head, 	Moffitt
Undergraduate 	Library. 	The 	file also contains 	a 	letter 	from
Debra Harrington, 	employed 	in 	the 	University's 	labor 	relations
department, 	to Evelyn Freitas, 	addressed to CSEA's Oakland
office, 	referring to a request 	to discuss 	changes 	affecting
student library employees. 	According to that document, 	the
reorganization 	"was 	the 	subject 	of 	a 	three hour meet 	and discuss
held on August 	22, 	1983, 	which CSEA requested and 	[Freitas]
attended."
With 	regard 	to 	SEA's 	charge 	concerning 	the 	alleged 	changes 	to
the 	orientation pamphlet, 	the proffered documents 	again disclose
that 	UC notified 	CSEA of 	its 	intention 	to 	revise 	the pamphlet 	by
letter dated September 9, 	1983 	and, 	according to a letter dated
October 	31, 	1983 	from Harrington to Nadia Tesluk, 	a CSEA
representative, 	two sessions 	were held to discuss 	CSEA's concerns
regarding 	the pamphlet.
Based 	on 	the 	allegations 	in 	the 	charge and 	the documents
submitted 	in support 	thereof, 	it does 	not 	appear 	that 	SEA
w
	3

existed 	as 	an 	employee organization 	at 	the 	time when 	UC 	took
action to reorganize 	the 	library staff 	or 	revise 	its 	orientation
pamphlet. 	Indeed, 	the only document 	attached 	to the charge which
refers 	to SEA as 	an 	employee 	organization 	is 	dated January 9,
1984, 	and notifies 	the University of 	SEA's 	intention to
"henceforth" 	act as 	the nonexclusive representative. 	Therefore,
inasmuch as 	the 	alleged unilateral 	changes 	occurred well 	before
SEA emerged 	as 	a 	representative 	of 	the 	student 	library employees,
we 	find no prima 	facie case 	is 	alleged 	in SEA's 	charge.
In addition to the reasoning set 	forth above, 	we 	also base
our 	affirmance of 	the dismissal 	on 	the 	recent 	Court 	of Appeal
decision which concluded 	that 	HEERA does 	not 	require 	the
University to notify and 	discuss 	matters 	within 	the 	scope 	of
representation with nonexclusive 	representatives. 	The 	Regents
of 	the 	University of 	California v. 	Public 	Employment 	Relations
Board 	(1985) 	168 Cal.App.3d 937. 	Thus, 	while at the time of the
instant 	dismissal 	PERB case 	law entitled 	a 	nonexclusive
representative 	to notice 	and 	an opportunity 	to discuss
fundamental 	employee concerns 	with the employer, 	the decision of
the 	Court 	of Appeal 	found 	to the contrary.
The 	nonexclusive 	employee 	organization may
continue 	to represent 	its 	members 	in many
ways, 	but 	the 	initiative for representation
must come 	from the employee. 	The employee
has 	a right 	to be represented, 	but the
organization does 	not have 	an 	independent
right 	to represent. 	(Emphasis 	in original,
at 	p. 	945.)3
3HEERA section 	3562(f) 	permits 	the Board 	to 	find 	student
44

employees 	whose employment 	is 	contingent 	on their status 	as
students 	to be 	considered 	employees 	covered by the 	Act:
. . . 	if 	the 	services 	they provide 	are
unrelated 	to 	their 	educational 	objectives,
or, 	that 	those educational objectives 	are
subordinate 	to 	the 	services 	they perform and
that coverage under 	. 	. 	. 	[HEERA] would
further the purposes 	of 	. . . 	[the Act].
Thus, 	if employment 	of the student 	library employees 	is
contingent 	upon their 	status 	as 	students, 	these employees 	enjoy
HEERA coverage only 	if 	the conditions 	of 	3562(f) 	are satisfied.
However, 	there has 	been no claim by UC that 	the 	students 	are
not 	employees, 	nor has 	an evidentiary hearing been convened 	to
establish the students' 	exclusion. 	Thus, 	in the instant case,
we 	must 	consider 	the 	student 	library staff 	to be 	employees 	under
the Act 	and 	affirm the dismissal 	for 	those 	reasons 	articulated
above.
In accordance with this 	decision, 	we 	find that 	SEA's 	charge
fails 	to allege 	that 	the 	University neglected 	its 	statutory
obligation.
We have 	also reviewed 	SEA's 	contention 	that 	the 	regional
attorney 	improperly dismissed 	its 	allegations 	of 	improper
retaliation. 	The reorganization plan, 	by its terms, 	caused
student 	library 	employees 	to 	lose promotional 	opportunities.
The charge, 	therefore, 	is not deficient 	in failing to allege
that 	employees 	were 	affected by the 	restructured duties.
Nevertheless, 	we are 	in agreement 	with the regional 	attorney's
conclusion 	that 	the 	factual 	allegations 	are 	insufficient 	to
demonstrate 	that 	the 	individual 	employees 	were 	treated
disparately or 	that 	the 	reorganization plan 	was 	motivated by an
effort 	to 	squelch 	the 	claimed 	union 	activism.
s

ORDER
Based on our 	review of 	the 	record, 	we AFFIRM the 	regional
attorney's 	dismissal 	of 	the 	charge 	filed by 	the 	Student
Employees' Association.
Chairperson Hesse 	joined 	in 	this 	Decision. 	Member 	Porter's
concurrence begins 	on p. 	7.
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Porter, 	Member, 	concurring: 	I concur 	in affirming the
dismissal 	of 	SEA's 	charges 	for 	the 	reasons 	set 	forth 	in the
majority opinion. 	Additionally, 	I would elaborate on the
student 	employee 	issue 	recognized but 	not 	resolved 	in 	footnote
3 at pp. 	3-4, 	supra.
First, 	with respect 	to this 	Board's 	jurisdiction under
HEERA and 	the 	standing and 	rights 	of 	"employees" 	under HEERA
section 3562(f) 	of HEERA prescribes:
(f) 	"Employee" or 	"higher education
employee" 	means 	any employee of 	the Regents
of 	the University of California, 	the
Directors 	of Hastings 	College of 	the Law, 	or
the 	Board of 	Trustees 	of 	the 	California
State University, 	whose employment 	is
principally within 	the 	State 	of 	California.
However, 	managerial, 	and confidential
employees 	shall 	be 	excluded 	from coverage
under 	this 	chapter. 	The board may find
student 	employees 	whose 	employment 	is
contingent 	on their 	status 	as 	students 	are
employees 	only 	if 	the 	services 	they provide
are 	unrelated 	to 	their 	educational
objectives, 	or, 	that those educational
objectives 	are 	subordinate 	to 	the 	services
they perform and 	that 	coverage 	under 	this
chapter 	would 	further 	the purposes 	of 	this
chapter.(Emphasis 	added.)
Accordingly, 	student 	employees 	of 	the 	University whose
employment 	is 	contingent 	on their status 	as 	students 	are not
"employees" 	within HEERA. 	For 	such student 	employees 	to
achieve 	"employee" 	status 	under HEERA, 	this 	Board would 	first
have 	to 	find with respect 	to such student 	employees 	that:
1. 	the 	services 	they provide 	are 	unrelated 	to their
educational objectives, 	or, 	that those educational
objectives 	are 	subordinate 	to 	the 	services 	they
perform, 	and
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2. 	that 	coverage 	under 	HEERA would 	further 	the purposes
of 	HEERA. 	(Government 	Code 	section 	3562(f).)
The 	documents 	submitted by SEA in 	support 	of 	its 	charges
indicate 	that 	the 	student 	library employee positions 	in
controversy were 	casual/restricted 	part-time positions,
reserved 	for 	regularly-enrolled 	students 	at 	the 	University. 	In
fact, 	the thrust 	of 	SEA's 	challenge concerned the University's
proposed 	reorganization of 	some 	of 	these positions 	to 	full-time
career positions 	no 	longer 	requiring 	student 	status 	and 	thus,
in effect, 	making the positions 	no longer 	restricted or
available 	to 	the 	registered 	students 	who 	normally 	occupied 	them.
Secondly, 	there 	is the history of 	the prior decisions 	and
orders 	of 	this 	Board 	concerning 	student 	library employees 	at
the 	University.
On September 4, 	1981, 	in Unit Determination for Employees
of 	the 	Regents 	of 	the University of California 	(1981) 	PERB
Order No. 	Ad-114-H, 	this Board directed the chief
administrative 	law 	judge 	to defer hearings 	on the 	exclusions 	of
employees 	from representation units 	until 	after 	the 	issuance of
recommendations 	as 	to the appropriate units 	for 	employees 	of
the 	University.
On April 20, 	1982, 	after the recommendations on appropriate
units had been 	issued, 	this 	Board 	issued 	its 	decision and order
in Unit 	Determination for Employees 	of 	the Regents 	of 	the
University of California 	(1982) 	PERB Order No. 	Ad-114a-H,
whereby 	it 	remanded 	the 	matter 	to 	the 	chief 	administrative 	law
8

judge 	for hearings 	on:
a. 	The 	appropriate 	unit placement 	of
residents and interns; 	and
b. 	exclusionary issues, 	including questions
of managerial, 	supervisory, 	confidential or
casual 	status or 	status 	as 	a student 	as
defined in section 3562(f), 	except that no
evidence 	is 	to be 	taken on the
employee-student 	status 	of 	residents 	and
interns. 	(Ad-114a-H, 	p. 	2, 	emphasis added.)
On August 4, 	1982, 	this 	Board 	issued its decision and order
in Unit 	Determination 	for 	Employees 	of 	the 	Regents 	of 	the
University of California 	(1982) 	PERB Order No. 	Ad-114b-H,
wherein it ordered at p. 	2: 	". 	. 	. 	that the student exclusion
stipulation dated July 7, 	1982, 	be accepted [by the Board]"
This 	student 	exclusion stipulation provided 	in pertinent part:
The 	undersigned parties1 hereby 	stipulate
that 	student 	employees 	whose 	employment with
the 	University of 	California 	is 	contingent
upon their 	status 	as 	students 	of 	the
University 	are 	to be 	excluded 	from the
bargaining 	units 	recommended 	by 	the
Administrative 	Law Judges 	or 	any units 	found
appropriate by PERB 	in this 	proceeding.
The 	student 	employees 	in staff 	titles 	who
are 	to be 	excluded pursuant 	to 	this
stipulation 	are 	employed 	in many different
title 	codes 	which are 	included 	in the
recommended 	units 	and 	their 	employment
status 	is 	designated 	as 	"casual-restricted"
or 	"casual" 	as defined 	in the Staff
Personnel Manual of 	the University. 	It 	is
the 	intent 	of 	the parties 	that 	this
stipulation shall 	not be applied so as 	to
1The parties 	to 	the 	stipulation 	were 	the 	University of
California and 	various 	employee 	organizations 	including 	CSEA,
the predecessor 	organization 	to 	SEA representing 	student
library 	employees.
99

exclude 	any student 	employees 	whose
employment 	with 	the 	University 	is 	not
contingent 	upon their 	status 	as 	students 	of
the 	University, 	and shall 	also not be applied
to exclude any students 	who are 	'career'
employees 	as 	defined 	in the 	Staff 	Personnel
Manual 	of 	the 	University.
The parties 	enter 	into 	this 	stipulation 	to
exclude 	student 	employees 	from the
recommended 	bargaining 	units 	on 	the 	basis
that 	such 	employees 	do not 	share a community
of 	interest 	with other 	employees 	who are
subject 	to the petitions 	now on 	file.
Specifically, 	the employment of 	such
individuals 	is 	contingent 	upon 	their 	status
as 	students of the University; 	their
appointment 	for 	employment 	is 	short-term,
usually no more 	than 	20 hours 	per 	week,
arranged 	around 	their 	class 	schedule 	and 	not
longer 	than a calender year; 	their placement
as 	employees 	of 	the University 	is 	for the
purpose 	of 	providing 	financial 	assistance
during 	their 	enrollment 	at 	the 	University;
and, 	said students 	do not 	receive 	regular
University benefits.
Attached 	hereto 	and 	incorporated 	by 	reference
in this 	stipulation 	is 	a list 	of 	title codes
in which student 	employees 	are 	employed.
This 	list 	was prepared by 	the 	University and
was 	current as of March 1982. 	The list 	is
solely 	intended 	to be 	for 	the purpose of
illustrating 	the 	approximate 	number 	of
individuals 	and 	the 	classifications 	affected
by this 	stipulation. 	(Emphasis 	added.)
The referred 	to list, 	titled 	"SYSTEMWIDE CLERICAL
UNIT Student 	Exclusions" 	included:
10
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Title 	Number 	on 	Each 	Campus
Code 	Job 	Title 	B 	SF 	D 	SC 	SB 	R 	LA 	SD 	I 	Total
6732 	Bibliographer 	II 	61 	22 	140 	1 	204
6733 	Bibliographer 	I 	47 	9 	6 	51 	2 	115
6759 	Library Assistant 	IV 	1 	1 	5 	7
6760 	Library Assistant 	III 	1 	3 	5 	9
6761 	Library Assistant 	II 	12 	4 	1 	11 	1 	25 	1 	2 	57
6762 	Library Assistant 	I 	124 	5 	14 	3 	40 	14 	1 	201
And 	in Unit 	Determination 	for 	Service 	Employees 	of 	the
University of California 	(1983) 	PERB Decision No. 	245c-H, 	a
case 	dealing 	with 	several 	job 	classifications 	in 	the 	systemwide
service employees unit, 	this Board set 	forth:
UC alleges 	that 	many of 	these 	classifications
are designed 	for 	use 	in part 	or 	exclusively
by registered 	students 	of 	the 	university.
Where 	the 	employment of 	students 	in the
classifications 	listed 	above 	is 	contingent
upon their 	status 	as 	students 	of 	the
university, 	they have been excluded by
stipulation. 	See Unit 	Determination 	for
Employees 	of 	the 	Regents 	of 	the 	University of
California 	(8/4/82) 	PERB Order No, Ad-114b-H.
Accordingly, 	student 	library employees whose employment 	is
contingent 	on 	their 	status 	as 	registered 	students 	at 	the
University would 	not be 	"employees" 	under 	HEERA and 	thus 	not
within the 	jurisdiction of 	this 	Board. 	Whether 	any such
student 	library employees 	could 	achieve 	"employee" 	status 	under
1
• 	•
1

HEERA through 	the 	required 	Board 	finding 	and determination
under section 3562(f), 	awaits a possible 	future proceeding
before 	this 	Board.
12

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
March 30, 	1984
Evelyn Freitas
Student Employees' Assn.
2124 Kittredge Street, #215
Berkeley, CA 94704
Edward M. Opton, Jr.
Office of the General Counsel
590 University Hall
2199 Addison Street
Berkeley, CA 94720
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Student Employees' Association v. Regents of the University of California
Charge No. SF-CE-183-H
Dear Parties:
Pursuant to Public Employment Relations Board 	(PERB) 	Regulation
section 32620(5), a complaint will not be issued in the above-referenced case
and the pending charge is hereby dismissed because it fails to allege facts
sufficient to state a prima facie violation of the Higher Education Employer-
Employee Relations Act 	(HEERA).1 The reasoning which underlies this
decision follows.
On March 9, 1984, 	the regional attorney wrote to charging party pointing out
the deficiencies of the charge as written and soliciting an amendment or
withdrawal by March 16, 1984 	(letter attached and incorporated by reference).
The letter warned that if no such response was received by the deadline, the
allegations would be dismissed and no complaint would be issued. 	On March 19,
1984 charging party filed a first amended charge in the above-referenced case.
Charging party has failed to allege a prima facie violation of HEERA
section 3571(a) 	and/or 	(b). 	The allegations of the first amended charge are
not significantly different from those contained in the original 	unfair
practice charge.
First, Student Employees' Association (SEA) alleges again that the University
acted unilaterally on two separate occasions. 	The charging party alleges that
the University failed to meet and discuss in good faith either the effects of
1References 	to the HEERA are to Government Code sections 3560 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

Evelyn Freitas
Edward M. Opton, Jr.
March 30, 1984
Page 2
its decision to reorganize the circulation section of the Moffitt Library or
its alleged decision to change the terms and conditions of student employment
in the library. 	The defects of the original charge have not been cured by the
amendment. 	The SEA does not allege whether it even existed as an organization
at the time of the alleged changes and, if it did exist, that the University
knew or should have known of its existence. 	The SEA does not allege whether
it even existed as an organization at the time of the alleged charges and, if
it did exist, that the University knew or should have known of its existence.
In essence, SEA objects to conduct which allegedly occurred during meet and
discuss sessions held between the University and the California State
Employees Association (CSEA). 	Yet, SEA fails to justify its attempt to "stand
in the shoes" of CSEA. 	That the CSEA representatives have since become
representatives of SEA does not establish a right on behalf of SEA to inherit
CSEA's cause of action. 	Because charging party has no standing to raise these
claims, the allegations are dismissed and no complaint will issue.
Second, charging party alleges again that the University's reorganization
plan, announced in its final form on September 6, 1983, was undertaken for the
purpose of retaliating against CSEA activists. 	However, the charge fails to
set forth the names of such employees, the activities in which they engaged,
whether the employer knew or should have known of their activist status, what
proportion of the student supervisors were known to be activists, whether
non-activist student supervisors (if any) have been treated differently, and
finally, whether such students have been denied permanent career and staff
positions. 	Without these additional allegations, this aspect of the charge is
insufficient to state a prima facie violation of section 3571 (a) and/or (b).
The allegations contained in the charge are dismissed and no complaint will
issue.
Charging party alleges that Ms. June DeJong, a CSEA activist, was denied the
right established by past practice to be employed during the academic quarter
following her graduation. 	Yet, charging party also alleges that Ms. DeJong
graduated in the spring of 1983 and requested that she be allowed to work a
different quarter: 	the quarter which followed the quarter subsequent to her
graduation. 	Charging party has also alleged that a non-union member was
permitted to work the academic quarter following graduation, as well as the
subsequent quarter. 	The allegations of the charge did not support a finding
that the past practice, as described by charging party, was not followed in
this instance.
Charging party alleges that Veronica Stanford, president of SEA, was denied
the opportunity to work more than half-time. 	Additionally, the employer is
alleged to have forbidden Ms. Stanford to clock-in on February 20, 1984.
Charging party alleges:

Evelyn Freitas
Edward M. Opton, Jr.
March 30, 1984
Page 3
In taking this action, the University hoped to reduce
Stanford's presence in the shop and subsequently her
contact with other employees, further hindering
efforts to organize the new association.
The charge does not contain allegations suggesting that a discriminatory
motivation underlay the University's refusal to allow Ms. Stanford to work
more than one-half time. 	Novato Unified School District 	(9/30/82) PERB
Decision No. 	210; Regents of the University of California 	(5/16/83) PERB
Decision No. 308-H. 	The allegation that treatment of Ms. Stanford was
contrary to past practice is an indication that the University may have failed
to follow its own rule. 	Novato, supra. 	However, there is no allegation that
the University knew of her union activism, that it offered an illogical or
unreasonable explanation for its conduct, that she suffered disparate
treatment, or that there were other indications of anti-union animus. 	(See
Moreland Elementary School District 	(7/27/82) PERB Decision No. 227.)
Accordingly, the allegations are insufficient to set forth a violation of
HEERA. 	They are hereby dismissed and no complaint shall issue thereon.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal) 	to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty 	(20) 	calendar days after service of this Notice
(section 32635(a)). 	To be timely filed, the original and five 	(5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on April 19, 1984, or sent by telegraph or certified
United States mail postmarked not later than April 19, 1984 	(section 32135).
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 	95814
If you file a timely appeal, of the refusal to issue a complaint, any other
party may file with the Board an original and five 	(5) 	copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal 	(section 32635(b)).

Evelyn Freitas
Edward M. Opton, Jr.
March 30, 1984
Page 4
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 the
document filed with the Board itself 	(see section 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.
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 (section 32132).
Final Date
If no appeal is filed within the specified time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By PETER HABERFIELD
Regional Attorney
cc: 	General Counsel

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT 	RELATIONS 	OARD	OARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
March 	9, 	1984
Evelyn Freitas
Student Employees' Assn.
2124 Kittredge Street, #215
Berkeley, CA 94704
Re: 	Student Employees' Association v. Regents of the University of California
Charge No. SF-CE-183-H
Dear Ms. Freitas:
On January 30, 1984 the Student Employees' Association (Association) filed an
unfair practice charge against the Regents of the University of California
(University) alleging violation of HEERA section 3571, subdivisions (a), 	(b)
and (c). 	The charge appears to allege that the University, in two respects,
instituted unilateral policy changes without prior meet-and-discuss sessions
between it and the Association and, additionally, that the University conduct
interfered with, and retaliated against, the exercise of HEERA rights by the
Association and its members. 	These allegations are discussed in more detail
below.
First, charging party takes issue with the University's plan, announced in its
final form on September 6, 1983, to reorganize the circulation section of the
Moffitt undergraduate library. 	Charging party alleges that the University
refused to meet with it and discuss the changes and implementation of the
reorganization plan and that this refusal was manifested initially by the
University's failure to respond for over a one-month period to Association
requests for information and clarification, and then by its refusal to send the
eventual response to an address at which it was known the representative was
able to receive it.
Second, the Association has alleged that the University announced in
September 1983 its planned change of policies governing the employment
conditions of students employed in the library and that the University
unlawfully refused to convene a meet-and-discuss session concerning these
changes. The Association describes 	the circumstances as 	follows:
Evelyn Freitas, at that time a representative of the now-defunct California
State Employees' Association (CSEA), requested to meet and discuss concerning
these proposed changes on July 28, 1983. 	The University delayed meeting for
over one month, but ultimately had a meeting, held on October 13, 1983, for
the purpose of discussing the changes with CSEA. 	Two of the three University
representatives left the meeting prior to its conclusion and before arranging
for the continuation of the discussion. 	The University refused to respond on
October 18, 1S83 to charging party's request that further meetings be held on
the issue. 	The University accompanied notification to the Association of its
refusal with a request that charging party submit further questions in

writing. 	Communication 	between the parties was frustrated further when the
University sent letters which were addressed to the employee representatives
at an inconvenient address.
Charging party appears to allege that the University's plan to reorganize the
circulation section of the Moffitt library constitutes an independent violation
of subdivisions 	(a) and 	(b) of HEERA section 3571 because it amounts to
interference with the exercise of HEERA rights by both the Association and its
members, as well as discrimination and retaliation against the Association and
its members for exercising HEERA rights. 	The stated purpose of the new
policy, according to the Association, was to eliminate student employees from
supervisory positions and to replace them with career staff. 	That rationale,
according to the Association, is a pretext for a change designed to restrict
employees with pro-union sympathies from engaging in further organizing
efforts. 	Charging party has alleged that the discriminatory motivation of the
University is evident from the fact that it deliberately created the high
turnover and attrition which it used to justify the reorganization.
Governing Legal Principles and Application to Allegations of the Charge.
1. 	Elements of a unilateral change violation; 	Charging party has alleged
that the University unlawfully altered established practice regarding terms and
conditions of employment. 	EERB has held that an unlawful unilateral action is
a per se violation of section 3571(b) where it is alleged and later proven
that: 	(1) charging party is a non-exclusive representative of unit employees;
(2) 	the employer has adopted a policy affecting a fundamental aspect of the
employer-employee relationship; 	(3) the policy adopted by the employer is not
in accordance with established policy; 	(4) the employer policy was adopted
without giving the non-exclusive representative notice and reasonable
opportunity to request a meet and discuss session with the employer; or, 	(5)
if a meet and discuss session did occur, the subject was not discussed in good
faith by the employer prior to implementation of the change. 	University of
California (11/23/83) PERB Decision No. 359-H; State of California
(Professional Engineers in California Government (PEGG) (3/19/80) 	PERB
Decision No. 118-S; California State University, Sacramento (4/30/82) PERB
Decision No. 211-H; Regents of the University of California 	(Lawrence
Livermore National Laboratory) 	(4/30/82) PERB Decision No. 212-H; California
State University, Hayward (8/10/82) PERB Decision No. 231--H; State of
California, Department of Corrections (5/5/80) PERB Decision No. 127-S; State
of California, Franchise Tax Board (7/29/82) PERB Decision No. 229-S.
The charge fails to set forth a prima facie violation of section 3571(b), and
derivatively subdivision (a), for several reasons. 	First, the charge fails to
allege that the Association was a non-exclusive representative at the time the
University undertook to make the alleged changes in policy, and that its
representational status had been made known to the University. 	My
investigation revealed that on the dates of the alleged unilateral changes,
the Association was not a nonexclusive representative of unit employees. 	At
the time, the CSEA represented employees in the workplace and, in fact,
22

engaged in a number of meet and discuss sessions with the University concerning
both alleged unilateral changes. 	Consequently, 	the Association has no standing
to complain either that the University refused to meet and discuss the issues
with it or that it engaged in conduct which fell short of the meet and discuss
standard in its interaction with CSEA. 	It is insufficient that the individuals
who now bring this charge had participated as CSEA representatives during those
meet and discuss sessions.
Second, the charge does not contain a clear and concise statement of the facts
and conduct alleged to constitute either the established policy or the
"changed" policy. 	(See EERB Rule 32615(a)(5).)
Third, 	the charge does not contain an allegation that the change of former
policy affected a fundamental aspect of the employer-employee relationship.
Reorganization of the supervisorial system incidentally is likely to be a
subject within management's exclusive prerogative. 	Alum Rock Union Elementary
School District 	(6/27/83) 	EERB Decision No. 	322.
Fourth, with respect to the alleged change in working conditions for student
library personnel, this aspect of the charge does not appear- "ripe" for
challenge as an unfair practice. 	No change is alleged to have been
implemented. 	At this stage it has been merely proposed. 	There are no
allegations that the University refused to respond to a timely request by the
Association to meet and discuss this issue.
2. 	Elements of discrimination and retaliation charge; 	FERB has held that
a prima facie statement of unlawful discrimination and 	retaliation requires
allegations that: 	(1) 	the employer took adverse action against a certain
employee; 	(2) 	the employee engaged in activity protected by HEERA; and, 	(3) 	the
employer would not have taken the adverse action against the particular
employee "but for" her/his having engaged in the protected activity. 	Novato
Unified School District 	(4/30/82) 	PERB Decision No. 210; Regents of the
University of California 	(5/16/83) 	FERB Decision No. 	308-H; Regents of the
University of California 	(6/10/83) 	FERB Decision No. 319-H..
The nexus between the employer conduct and the protected activity is
established by alleging unlawful motivation on the part of the employer. 	In
Placerville Union School District 	(2/14/84) FSR3 Decision No. 377, PERB stated
that where direct evidence of unlawful motivation is lacking, 	it has generally
looked to such factors as timing 	(North Sacramento School District 	(12/20/82)
PERB Decision No. 264); Coast 	Community 	College 	District 	(10/15/82} 	PERB
Decision No. 	251), disparate treatment 	(San Joaquin Delta Community College
District 	(11/30/82) PERB Decision No. 251; San Leandro Unified School District
(2/24/83") PERB Decision No. 288), departure from past procedures (Novato,
supra) 	and inconsistent justifications 	(State of California 	(Department of
Parks and Recreation) 	(7/29/83) PERB Decision No. 328-S) which, under certain
circumstances, may support an inference of unlawful motivation. 	Also see
University of California 	(5/16/83) 	PERB Decision No. 308-H.
33

The charge, as presently set forth, fails to allege any of the above-cited
indices of unlawful motivation. 	As to the allegation that the University
restructured supervisorial responsibilities, there is no indication that an
employee or an employee organization was affected by this change. 	No employee
is alleged to have lost employment when the University changed casual
restricted positions to permanent career staff positions. 	There is no
allegation that students were unable to apply for the new positions.
If you feel that there are facts which would correct the deficiencies
explained above, please amend the charge accordingly. 	The amended charge
should be prepared on a standard FERB 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 be served on the respondent and the original proof of
service must be filed with EERB. 	If I do not receive an amended charge or
withdrawal from you before March 16, 1984, I shall dismiss your charge. 	If
you have any questions on how to proceed, please call me at 	(415) 	557-1350.
Sincerely yours.
Peter Haberfeld
Regional Attorney
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