Regents of the University of California (California Nurses Association) * * * OVERRULED IN PART by Regents of the University of California (2026) PERB Decision No. 3010-H, pp. 7-8 * * * (PERB 1157H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA NURSES 	ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
) 	Case No. 	SF-CE-429-H
PERB Decision No. 	1157-H
June 	13, 	1996
)
)
)
)
)
)
)
Appearances: 	Eggleston, 	Siegel 	& LeWitter by William H. 	Carder,
Attorney, 	for California Nurses Association; 	Susan H. 	von
Seeburg, 	Attorney, 	for Regents of the University of 	California.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of 	the California Nurses Association's 	(CNA) 	unfair
practice 	charge. 	As amended, 	the 	charge alleged that 	the Regents
of 	the University of 	California 	(University) 	violated section
3571(a), 	(b), 	(c), and (e) 	of the Higher Education Employer-
Employee 	Relations Act 	(HEERA) 	by 	failing 	to bargain 	in good
faith both before 	and after 	the 	declaration of 	impasse.1
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	HEERA Section 3571 provides, 	in relevant
part:
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
* * * OVERRULED IN PART by Regents of the University of California
(2026) PERB Decision No. 3010-H, pp. 7-8 * * *

The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including CNA's 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	CNA's 	appeal 	and the University's
response 	thereto. 	The Board 	finds 	the Board agent's warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself 	in accordance with 	the
following 	discussion.
DISCUSSION
CNA's 	appeal presents a novel 	argument. 	While 	conceding
that 	post-impasse 	unilateral 	changes 	violate 	HEERA section
3571(e) 	CNA argues 	that 	surface bargaining, 	after the declaration
of 	impasse, 	violates HEERA section 3571(c). 	CNA contends that
this 	is 	so because 	the Board's 	surface bargaining analysis
includes 	a review of 	the entire 	course of negotiations. 	(See,
e.g. 	Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51 at p. 	5 	(setting forth 	"totality of 	the circumstances"
test).)
interfere with, 	restrain, 	or coerce employees
because 	of 	their exercise 	of 	rights 	guaranteed by
this 	chapter. 	For purposes 	of 	this 	subdivision,
"employee" 	includes 	an applicant 	for employment 	or
reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
(e) 	Refuse 	to participate 	in good faith in the
impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3590).
22

We 	disagree 	for 	the 	following 	reasons:
It 	is well 	established that 	the declaration of 	impasse 	ends
the parties' 	formal 	obligation to meet 	and confer under section
3571(c). 	(See Moreno Valley Unified School Dist, 	v. 	Public
-Employmen- 	---------t Relations Bd. 	(1983) 	142 Cal.App.3d 191, 	202 	[191
Cal.Rptr. 	60] 	(interpreting corresponding provision of EERA);
Victor Valley Union High School 	District 	(1986) 	PERB Decision
No. 	565 	at p. 	8.) 	That duty remains dormant unless 	revived by
some 	changed circumstance, 	such as 	a 	significant 	concession by
either party. 	(Modesto City Schools 	(1983) 	PERB Decision No. 	291
at pp. 	33-34.) 	Absent such changed circumstances, 	the Board
examines 	allegations 	of 	post-impasse bad 	faith under 	section
3571(e), 	rather than section 3571(c). 	(Charter Oak Unified
School District 	(1991) 	PERB Decision No. 	873 at pp. 	1-2, 	fn. 	1;
Compton Community College District 	(1989) 	PERB Decision No. 	728
at p. 	55, 	fn. 	11.)
CNA has 	not 	alleged 	any 	changed 	circumstances 	sufficient 	to
revive the parties duty to bargain. 	The Board agent, 	therefore,
properly 	analyzed 	CNA's 	allegations 	of 	post-impasse 	surface
bargaining under HEERA section 3571(e) 	rather than 3571 (c).
CNA also asserts 	that 	the 	Board agent 	erroneously 	found 	that
the parties 	had discussed overtime 	rates 	at 	the University of
California at Los Angeles prior to August 23, 	1995. 	Despite
CNA's argument, 	it 	is 	clear that 	the Board agent presumed that
the parties 	had not 	previously discussed 	the 	overtime proposals.
(Warning Letter, 	p. 	3.) 	The Board agent's presumption is 	in
33

concert 	with Board precedent. 	(See Mark West Union School
District 	(1993) 	PERB Decision No. 	1011 at pp. 	3-4 	(noting that
the 	Board presumes 	the 	truth of 	facts 	alleged 	in unfair practice
charge).)
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-429-H is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
44

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERB
December 28, 	1995
James E. Eggleston, Esq.
Eggleston, 	Siegel & LeWitter
1330 Broadway, 	Suite 1700
Oakland, 	California 	94612
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	SF-CE-429-H, 	California Nurses Association v.
Regents 	of the University of California
Dear Mr. Eggleston:
I indicated to you in my attached letter dated November 15, 	1995,
that 	the above-referenced charge did not 	state a prima facie
case. 	You were advised that 	if 	there were any factual
inaccuracies 	or additional 	facts 	that would correct 	the
deficiencies 	explained in that 	letter, 	you should amend the
charge accordingly. 	You were further advised that unless you
amended the charge to state a prima facie case, 	or withdrew it
prior to December 22, 	1995, 	the charge would be dismissed.
On December 22, 	1995, 	I received your first amended charge. 	The
original 	charge alleged the University of 	California 	(University)
violated HEERA § 3571 (a), 	(b), and (c). 	The amended charge
alleges 	the University is engaged in two separate violations of
HEERA: 	(1) 	refusing to meet and confer in good faith in violation
of HEERA § 3571(a), 	(b), and (c); and (2) 	refusing to participate
in good faith in the statutory impasse procedures 	in violation of
HEERA § 3571 (e).1
In my November 15, 	1995, 	letter I explained the original charge
presented facts 	regarding the University's 	conduct 	following the
declaration of impasse. 	I also indicated to you for conduct
occurring during and prior to the exhaustion of 	impasse
procedure, 	only HEERA § 3571(e) 	could be at issue. 	(See Moreno
Valley Unified School District v. 	Public Employment Relations
Board 	(1983) 	142 	Cal.App.3d 191.)
1The amended charge actually states, 	"A continuing refusal
to participate 	in good faith in the 	statutory impasse procedures
in violation of Government Code section 3571(3). 	[sic]"

SF-CE-429-H
December 28, 	1995
Page 2
Your amended 	charge 	argues 	a 	bad 	faith bargaining 	proposal,
designed 	to prolong 	the 	impasse 	and undermine 	the 	statutory-
procedures, 	could be a violation of both HEERA § 3571 	(a), 	(b),
(c) 	and of HEERA § 3571(e). 	In support, 	you cite Compton
Community College District 	(19 89) 	PERB Decision No. 	728 and San
Marino Unified School District 	(1989) 	13 	PERC f 20219. 	However,
the Board 	in Compton Community College District, 	supra
specifically noted in footnote 	11, 	since the District's act 	of
repudiation 	took place during 	impasse proceedings 	it must be
considered a violation of 	section 3543.5(e) . 	Similarly in San
Marino Unified School 	District, 	supra 	the administrative 	law
-	judge 	separated 	conduct 	occurring 	during 	negotiations 	from
conduct 	occurring during 	impasse proceedings. 	Accordingly 	for
conduct 	occurring since 	the declaration of 	impasse, 	only HEERA §
3571(e) 	will be at 	issue.
On May 26, 	1995, 	CNA filed 	its 	impasse determination request with
PERB. 	The University's August 	23, 	1995, 	proposals occurred
during 	the 	impasse procedures 	and 	could 	only be 	considered
violative of HEERA § 	3571(e). 	Thus, 	to the extent 	that 	the
charge alleges these proposals violated HEERA § 3571(a), 	(b) , 	and
(c) 	it is dismissed.
As discussed in my December 1, 	1995, 	letter, 	the 	totality of
conduct 	test 	is 	generally applied 	to 	determine whether an
employer 	engaged 	in good 	faith bargaining. 	This 	test 	examines
the 	entire 	course 	of 	negotiations 	to determine whether 	the
employer 	had 	the 	requisite 	subjective 	intention 	of 	reaching 	an
agreement. 	(Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51). 	Factors 	considered indicative 	of bad faith
bargaining include: 	(1) 	frequent turnover in negotiators, 	(2)
negotiator's 	lack of authority, 	(3) 	lack of preparation for
bargaining sessions, 	(4) 	missing, 	delaying of cancelling
bargaining sessions, 	(5) 	insistence on ground rules before
negotiating substantive issues, 	(6) 	taking an inflexible
position, 	(7) 	regressive bargaining proposals, 	(8) 	predictably
unacceptable 	counterproposals, 	and 	(9) 	repudiation of a tentative
agreement. 	However, 	the presence of one 	indicia alone 	is
insufficient 	to 	establish bad 	faith.
The 	amended 	charge 	fails 	to 	demonstrate 	that 	the 	University's
conduct 	during 	the 	impasse 	procedures 	presents 	a prima 	facie
violation 	of 	HEERA 3571(e) 	under 	the 	totality of 	conduct 	test.
The 	amended 	charge 	does 	not 	present 	new factual 	allegations
regarding 	the 	University's 	conduct 	during 	the 	impasse procedures,
but merely 	repeats 	the 	original 	charge's 	allegations 	regarding
the University's August 23, 	1995, 	proposals. 	Therefore I am
dismissing 	the 	original allegations, 	as amended based on the
facts and 	reasons 	contained 	in my December 1, 	1995, 	letter.

SF-CE-429-H
December 28, 	1995
Page 3
To the extent 	that 	the charge alleges the University's conduct
prior to impasse on May 26, 	1995, violated HEERA § 3571 (a), 	(b),
and 	(c), 	this charge does not present a prima facie violation for
the reasons explained below. 	The amended charge alleges 	the
following conduct occurred before May 26, 	1995: 	(1) 	on March 29,
1995, 	the parties reached a tentative agreement, 	(2) 	in April of
1995, 	the CNA membership rejected that tentative agreement, 	(3)
on May 19, 	1995, 	the University "repudiated the tentative
agreements it had made with CNA on March 28 and 29, 	1995, 	and
presented a regressive 'Last, 	Best, 	and Final Proposal' 	in which
it reverted to its pre-March 28th position on a number of
economic and non-economic items."
Under the totality of conduct test, 	the charge's allegations of
conduct prior to impasse do not present a prima facie violation
of HEERA § 3571(a), 	(b), and 	(c). 	The charge indicates the
parties began negotiating on September 14, 	1994, 	and by March 29,
1995, 	had reached a tentative agreement. 	Although the charge
alleges on May 19, 	the University 	"repudiated" 	the tentative
agreement, 	the CNA membership had already voted to reject that
tentative agreement in April. 	As previously noted, 	one indicia
alone does not demonstrate bad faith. 	Thus, 	accepting the
charge's characterization of the University's last, 	best, 	final
offer as regressive, 	the totality of conduct does not demonstrate
bad faith. 	The charge fails 	to demonstrate the University lacked
the subjective intent to reach an agreement in violation of HEERA
§ 3571(a), 	(b), and (c), and therefore it is dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	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 dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 	shall apply.
The Board's address is:
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
(

SF-CE-429-H
December 28, 	1995
Page 4
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
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. Code of Regs., 	tit. 	8,
sec. 	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. 	(Cal. Code of Regs., tit. 8, sec. 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
Tammy L. Samsel
Regional Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PEAS
November 15, 	1995
James E. Eggleston, Esq.
Eggleston, 	Siegel & LeWitter
1330 Broadway, 	Suite 1700
Oakland, 	California 	94612
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	SF-CE-429-H,
California Nurses Association v. 	Regents of the University
of California
Dear Mr. Eggleston:
The above-referenced charge alleges 	the University of 	California
(University) violated HEERA Section 3571(a), 	(b) , and (c) when
the University offered alternative impasse settlement proposals
which were regressive. 	My investigation revealed the following
information.
The California Nurses Association 	(CNA) 	and the University began
bargaining in November of 1994. 	In March of 19951 the parties
reached a tentative agreement. 	However, 	in April the CNA
membership voted to reject that agreement. 	On May 19, 	CNA
declared impasse after receiving the University's last, 	best and
final offer. 	PERB certified the impasse and appointed John.
Jaeger mediator. 	The parties 	failed to reach an agreement during
the mediation session on July 24.
On August 23, 	the University sent an impasse settlement proposal
to CNA. 	The University proposed two substantive agreement
alternatives: 	a two-year agreement and a one-year agreement.
The University's 	third alternative stated unless ratification of
an agreement occurred by September 25, 	1996, 	the University would
revert back to its pre-March 28 proposals, 	and that the matter
should be 	forwarded to factfinding.
The two substantive agreement alternatives proposed reductions 	in
overtime pay rates for nurses at UCLA. 	The charge alleges that
the parties had not previously discussed the subject of overtime
at UCLA. 	The charge further alleges that the University's new
proposals are regressive and made in bad faith without any
genuine attempts to reach agreement.
1Unless otherwise stated, 	all dates refer to 1995.

SF-CE-429-H
December 1, 	1995
Page 2
As an initial matter, 	the charge presents facts regarding the
University's 	conduct 	following the declaration of impasse. 	The
California Court of Appeal explained, 	"the failure to meet and
negotiate in good faith, 	and the failure to participate in good
faith in the statutory impasse procedure, 	are made separate
unlawful practices 	. 	. 	. 	." 	(Moreno Valley Unified School
District v. 	Public Employment Relations Board 	(1983) 	142
Cal.Abp.3d 191.) 	For conduct occurring during and prior to the
exhaustioI n of the statutory impasse procedure, 	only HEERA §
3571(e) 	can be at issue. 	Conduct within that time-frame cannot
also be the basis for violations of HEERA § 3571(a), 	(b), 	and
(c). 	(See Moreno Valley Unified School District, 	supra.) 	For
this reason the charge fail-----------·s 	to demonstrate a prim-a faci	-- e
violation of HEERA § 3571(a), 	(b), and (c).
Thus, 	the appropriate inquiry is whether the University's conduct
violated HEERA § 3571 (e). 	However, 	even assuming the charge
properly alleged the University violated HEERA § 3571(e), 	the
charge fails 	to present 	facts establishing a prima facie
violation of that section.
The totality of 	conduct 	test 	is 	generally applied to determine
whether an employer engaged in good faith bargaining. 	This 	test
examines the entire course of negotiations to determine whether
the employer had the requisite 	subjective 	intention of 	reaching
an agreement. 	(Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51). 	Although the totality of conduct test is
generally applied, 	some conduct 	is considered to be a 	"per se"
violation without a determination of 	the employer's 	subjective
intent.2 As 	the conduct alleged in the charge does not 	fall 	into
one of the per se categories, 	the totality of conduct test will
apply.
The facts of this case, 	fail to demonstrate under the totality of
conduct test 	that the University lacked the subjective 	intent to
reach an agreement. 	The charge's only allegation of bad faith
bargaining 	is 	that 	the University proposed an impasse 	settlement
2The per se categories include: 	(1) 	an outright refusal to
bargain; 	(2) 	refusal to provide information necessary and
relevant to the employee organization's duty to represent
bargaining unit employees; 	(3) 	insistence to impasse on a
nonmandatory subject of bargaining; 	(4) 	bypassing the employee
organization's negotiators; 	and 	(5) 	implementation of a
unilateral 	change 	in working conditions without notice and an
opportunity to bargain. 	South Bay Union School District 	(1990)
PERB Decision No. 	815, 	citations omitted.
I

SF-CE-429-H
December 1, 	1995
Page 3
alternative proposal on August 23, 	which CNA found unacceptable.
Although an employer must negotiate with a sincere intent 	to
reach an agreement, 	there is not a requirement that 	the parties
actually reach an agreement. 	(San Ysidro School District 	(1980)
PERB Decision No. 	134.)
The charge alleges 	the University's alternative proposals
included reductions in overtime pay rates for nurses at UCLA, 	and
indicates 	that 	the subject of overtime pay rates for nurses at
UCLA was 	"entirely new," 	and never been previously discussed by
the parties. 	In contrast to the charge's allegation, 	the August
23 letter indicates that the parties' 	chief negotiators, 	Gayle
Cieszkiewicz and Kent Buchholz, 	had previously discussed these
proposals on the telephone. 	However, 	even accepting the charge's
allegations as 	true, 	my research failed to reveal support for the
proposition that new proposals are 	indicia of bad faith
bargaining.
The charge also contends 	the University engaged in bad faith
bargaining because its proposals were regressive. 	Although
regressive bargaining is 	considered a factor indicative of bad
faith bargaining this 	charge does not 	factually support 	the
allegation that 	the proposals were regressive.
It is noteworthy that the University's proposals are package
proposals covering 40 articles in the agreement, 	because the
charge only alleges one aspect of the proposals is regressive,
namely, 	the overtime rates for nurses at UCLA. 	By singling out
only one aspect of the package proposals, 	the charge fails to
address that other aspects of the proposals were clearly not
regressive. 	For example, 	Alternative 1 of the August 23 proposal
indicates 	on-call 	rates will 	only be incrementally reduced to a
flat rate, 	whereas the March 28 proposal provided an immediate
flat rate. 	In addition, 	although the charge characterizes the
proposals as containing 	"significant concessionary demands" 	of
CNA, 	Alternative 1 contains a 2-year duration term, 	which is a
term the University included at the 	suggestion of CNA.
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

SF-CE-429-H
December 1, 	1995
Page 4
amended charge must be served on the 	respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before December 15. 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. Samsel
Board Agent