Regents of the University of California (University Professional and Technical Employees) (PERB 1252H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL AND
TECHNICAL EMPLOYEES, 	CWA LOCAL
9119, AFL-CIO,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	SA-CE-69-H
PERB Decision No. 	1252-H
February 27, 	1998
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Appearance; 	Susan H. 	von Seeburg, 	Attorney, 	for the 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 	(PERB 	or Board) 	on appeal by the Regents 	of 	the
University of 	California 	(University) 	to a Board administrative
law judge's 	(ALJ) 	proposed decision. 	In his proposed decision,
the ALJ held 	that 	the University violated section 3571(a) 	and 	(c)
of 	the Higher Education Employer-Employee Relations Act 	(HEERA)1
HEERA	1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
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 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.

when 	it 	unilaterally changed 	the 	hazardous material 	(HAZMAT)
duties 	of 	firefighters 	at 	the University of 	California at Davis
(UCD) 	and the Lawrence Berkeley Laboratory 	(LBL) 	from first
responder operations 	(FRO) 	to Technician, 	without providing the
University Professional 	and Technical 	Employees, 	CWA Local 	9119,
AFL-CIO 	(UPTE) 	with notice 	or an opportunity to bargain over the
change.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	and the
University's exceptions. 	For the reasons that 	follow, 	the Board
reverses 	the ALJ's 	decision and dismisses 	the 	charge and
complaint.
PROCEDURAL 	HISTORY
UPTE 	filed unfair practice 	charge 	Case No. 	SA-CE-69-H on
January 11, 	1995 and amended that 	charge on May 4, 	1995. 	On
June 5, 	1995, 	a Board agent 	issued a complaint on that 	charge.
The 	complaint 	alleged 	that 	the 	University violated HEERA section
3571(a) 	and 	(c) 	when it unilaterally modified the HAZMAT duties
of 	firefighters 	represented by UPTE. 	The University 	filed 	its
answer on June 26, 	1995 	and amended that 	answer on December 	1,
1995.
The ALJ held six days 	of 	formal 	hearing between October 3 0
and December 6, 	1995. 	On September 17, 	1996, 	the ALJ rendered a
proposed decision holding 	that 	the 	University's 	actions 	violated
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
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HEERA section 3571(a) 	and 	(c). 	The University filed exceptions
to that proposed decision on November 6, 	1996.
FACTUAL 	SUMMARY
The University 	is 	a higher education 	employer within the
meaning 	of 	HEERA. 	PERB 	certified UPTE as 	the 	exclusive
representative 	of 	a bargaining unit 	including 	University
firefighters on December 1, 	1994.
In the 	late 	1980's, 	the 	federal 	Occupational 	Safety and
Health Administration promulgated 	regulations 	covering 	hazardous
waste 	operations, 	including emergency responses 	to HAZMAT
releases. 	These regulations became effective on March 6, 	1990.
The 	regulations 	require 	each 	covered 	facility 	to prepare 	an
emergency 	response plan prior 	to 	the 	commencement 	of 	emergency
operations. 	As part 	of an emergency response plan, 	a 	facility
may designate 	a group 	of 	employees 	to act 	as a HAZMAT response
team. 	This 	team may act 	only 	in accordance with its 	level 	of
training.
Two 	levels 	of 	HAZMAT response 	training are 	important 	to 	this
case: 	(1) 	FRO; 	and 	(2) 	hazardous materials Technician. 	An FRO
is 	trained 	to act 	in a completely defensive 	fashion, 	attempting
to 	contain a HAZMAT 	release 	and protecting nearby persons 	and
property. 	(29 	CFR 	section 1910.120(q)(6)(ii).) 	A Technician is
trained to 	respond 	in an aggressive 	fashion, 	attempting 	to plug,
patch or otherwise 	stop the 	release of 	the hazardous 	substance.
33

(29 CFR section 1910.120(q) (6) (iii).)2 Because of the aggressive
229 	Code of 	Federal 	Regulations 	(CFR) 	section 1910.120
provides, 	in relevant part:
(q)(6) 	Training. 	Training shall be based on
the 	duties 	and 	function 	to be performed by
each 	responder 	of 	an 	emergency 	response
organization. 	The 	skill 	and knowledge 	levels
required for all 	new responders, 	those hired
after the 	effective date 	of 	this 	standard,
shall 	be 	conveyed 	to 	them through 	training
before 	they are permitted to take part 	in
actual 	emergency operations 	on an 	incident.
Employees who participate, 	or are 	expected to
participate, 	in emergency response, 	shall be
given 	training 	in accordance 	with 	the
following 	paragraphs:
(ii) 	First responder operations 	level. 	First
responders at 	the operations 	level are
individuals 	who 	respond 	to 	releases 	or
potential 	releases 	of hazardous 	substances 	as
part 	of 	the 	initial 	response 	to 	the 	site 	for
the purpose 	of protecting nearby persons,
property, 	or the 	environment 	from the 	effects
of 	the 	release. 	They are 	trained to respond
in a defensive 	fashion without 	actually
trying to stop the release. 	Their function
is 	to 	contain the 	release 	from a 	safe
distance, 	keep it 	from spreading, 	and prevent
exposures. 	First 	responders at 	the
operational 	level 	shall 	have 	received at
least 	eight 	hours 	of 	training or have had
sufficient 	experience 	to 	objectively
demonstrate 	competency 	in 	the 	following 	areas
in addition to 	those 	listed 	for the awareness
level 	and 	the 	employer shall 	so 	certify:
(A) 	Knowledge of 	the basic hazard and risk
assessment techniques. 	(B) 	Know how to
select 	and use 	proper personal 	protective
equipment 	provided 	to 	the 	first 	responder
operational level. 	(C) 	An understanding of
basic hazardous materials 	terms. 	(D) 	Know
how to perform basic 	control, 	containment
and/or 	confinement 	operations 	within 	the
capabilities 	of 	the 	resources 	and personal
protective 	equipment 	available 	with their
unit. 	(E) 	Know how to implement basic
decontamination procedures. 	(F) 	An
understanding 	of 	the 	relevant 	standard
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nature of 	the work, 	a Technician-level 	response 	entails 	greater
risk of bodily harm than does 	a 	response at 	the 	FRO 	level.
operating 	procedures 	and 	termination
procedures.
(iii) 	Hazardous materials technician.
Hazardous 	materials 	technicians 	are
individuals who 	respond 	to 	releases 	or
potential 	releases 	for the purpose of
stopping 	the 	release. 	They assume a more
aggressive 	role 	than a 	first 	responder at 	the
operations 	level 	in 	that 	they will 	approach
the point 	of 	release 	in order to plug, 	patch
or otherwise 	stop 	the 	release 	of 	a hazardous
substance. 	Hazardous materials 	technicians
shall 	have 	received at 	least 	24 	hours 	of
training 	equal 	to 	the 	first 	responder
operations 	level 	and 	in addition have
competency 	in 	the 	following areas 	and 	the
employer shall 	so certify: 	(A) 	Know how to
implement 	the 	employer's 	emergency 	response
plan. 	(B) 	Know the classification,
identification and verification 	of 	known and
unknown materials 	by using 	field 	survey
instruments and equipment. 	(C) 	Be able to
function within an assigned 	role 	in 	the
Incident 	Command System. 	(D) 	Know how to
select 	and use 	proper 	specialized 	chemical
personal 	protective 	equipment 	provided 	to 	the
hazardous materials 	technician. 	(E)
Understand 	hazard 	and 	risk 	assessment
techniques. 	(F) 	Be able to perform advance
control, 	containment, 	and/or confinement
operations 	within the 	capabilities 	of 	the
resources 	and personal 	protective 	equipment
available with the unit. 	(G) 	Understand and
implement decontamination procedures. 	(H)
Understand termination procedures. 	(I)
Understand basic 	chemical 	and 	toxicological
terminology 	and behavior.
In the 	early 1990's, 	University firefighters 	at UCD and LBL
were 	trained 	to 	respond 	to HAZMAT emergencies 	at 	the 	FRO 	level.
During 	this period, 	both the UCD and LBL 	fire departments
determined 	that 	it was necessary to train their 	firefighters 	at
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the Technician level. 	Because 	the 	chronologies at 	the 	two
campuses 	differ, 	we 	review them separately.
---	UCD
On February 2, 	1992, 	the UCD fire department 	(UCDFD) 	made a
final 	determination that 	its 	firefighters 	needed to 	respond 	to
HAZMAT releases 	at 	the Technician level. 	UCDFD provided
Technician-level 	training 	to all 	of 	its 	firefighters 	between
October of 	1992 	and January of 	1993.
In November of 	1993, 	UCDFD Chief Michael 	Chandler 	(Chandler)
prepared a 	draft 	HAZMAT emergency 	response plan which 	required
UCDFD 	firefighters 	to respond at 	the Technician level. 	The UCDFD
anticipated 	that 	the 	plan would be 	implemented between October 	1,
1994 	and December 1, 	1994. 	Chandler shared this draft 	emergency
response plan with 	the 	three 	line 	fire 	chiefs 	who were 	directed
to 	communicate 	its 	contents 	to the 	firefighters 	on their
respective shifts. 	On August 	1, 	1994, 	the UCDFD distributed a
new draft 	HAZMAT response plan to all 	involved staff. 	The new
draft 	also 	required UCDFD 	firefighters 	to 	respond at 	the
Technician 	level.
In October of 	1994, 	all 	career firefighters at UCDFD
attended a 	refresher Technician 	training 	course 	taught 	by UCD
personnel. 	After the 	course's 	completion, 	UCDFD management
determined 	that 	additional 	training was 	necessary before 	the
firefighters 	could respond at 	the Technician level. 	Accordingly,
UCDFD personnel 	then participated 	in a 	series 	of 	field 	training
exercises.
6

On December 30, 	twenty-nine days 	after the Board 	certified
UPTE as 	exclusive 	representative, 	UCDFD promulgated a HAZMAT
response plan based on the August 	1, 	1994 	draft 	HAZMAT response
plan. 	UCDFD management 	indicated 	that 	UCDFD 	firefighters 	would
thereafter respond 	to HAZMAT 	incidents 	at 	the Technician level.
At 	that 	time, 	UCDFD also made Technician-level 	HAZMAT equipment
available 	to 	its 	firefighters.
LBL
In February 1993, 	the LBL 	fire department 	(LBLFD)
established a 	committee 	to 	develop a HAZMAT emergency 	response
plan. 	The 	committee 	consisted of members 	from each shift 	of
LBLFD. 	Committee members were 	expected to 	share 	information with
all 	firefighters 	on their respective 	shifts. 	At 	the 	committee's
second meeting, 	in March of 	1993, 	LBL's 	fire chief 	informed the
committee 	that 	he planned to have all 	LBL 	firefighters 	respond at
the Technician level.
In June of 	1993, 	all 	LBL 	firefighters 	received refresher
training at 	the FRO level. 	Shortly after September 1, 	1993,
LBL's 	HAZMAT emergency response plan became 	operational. 	This
plan required FRO certification 	for 	firefighters, 	but did
anticipate 	some 	offensive 	response 	to HAZMAT releases.
Between November of 	1993 	and June of 	1994, 	all 	LBL
firefighters 	received 	Technician-level 	training 	at 	University
expense. 	During that period, 	those 	firefighters who had
completed 	their 	training 	participated 	in 	Technician-level
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training 	exercises 	with 	the 	Berkeley and 	Oakland 	fire
departments.
In June, 	September, 	and October of 1994, 	LBLFD produced
draft 	HAZMAT 	emergency response plans. 	LBLFD distributed 	these
plans 	to 	its 	fire 	captains, 	who were expected to get 	feedback
from the 	firefighters 	in their commands. 	In October of 	1994,
LBLFD 	distributed 	an 	interim HAZMAT 	emergency 	response 	plan 	to
all 	personnel. 	That 	interim HAZMAT emergency response plan
required 	LBL 	firefighters 	to 	respond at 	the 	Technician 	level.
In December, 	1994, 	the LBLFD began its annual 	revision of
job descriptions. 	These revised job descriptions, 	dated
December 24, 	1994, 	required, 	for the first time, 	that all LBL
firefighters 	be 	certified at 	the 	Technician 	level.
ALJ'S 	DECISION
The ALJ noted 	that 	a unilateral 	change 	in a 	term or
condition 	of 	employment 	for 	exclusively 	represented 	employees 	is
a per 	se 	refusal 	to meet 	and confer in good 	faith. 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51 at
p. 	5 	(Pajaro Valley); 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94 at p. 	12 	(San Mateo); 	Regents of the
University of 	California 	(1996) 	PERB Decision No. 	1169-H at
p. 	3 	(Regents).) 	The ALJ held that 	the University violated HEERA
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section 3571(a) 	and 	(c) 	when 	it unilaterally implemented new
HAZMAT duties 	for 	firefighters 	at 	UCD and LBL without 	providing
UPTE notice 	or an 	opportunity 	to bargain over 	the 	change.
88

UNIVERSITY'S 	APPEAL
On appeal, 	the University reiterates 	the defenses 	it 	raised
at 	the hearing. 	First, 	the University contends 	that UPTE's
charge was untimely. 	Second, 	the University argues 	that 	the
assignment 	of 	Technician-level 	duties was part 	of 	the dynamic
status quo. 	Finally, 	the University claims 	that 	LBL and UCD
firefighters, 	acting at 	the FRO level, 	either performed
Technician-level 	duties 	or duties 	so 	intimately 	related 	to
Technician-level 	duties 	that 	the 	imposition 	of 	Technician-level
duties was 	not 	actually a 	change 	in working 	conditions.
DISCUSSION
As 	the ALJ noted, 	once 	PERB has 	certified an exclusive
representative 	for a bargaining unit, 	an employer's unilateral
change 	in a 	term or 	condition 	of 	employment 	within 	the 	scope 	of
representation 	is 	a per se 	refusal 	to meet 	and 	confer 	in good
faith. 	(Pajaro at p. 	5; 	San Mateo at p. 	12; 	Regents at p. 	3.)
To establish an unlawful 	unilateral 	change, 	the 	charging party
must demonstrate 	that: 	(1) 	the employer breached or altered the
parties' 	written agreement or established past practice; 	(2) 	such
action was 	taken without 	giving 	the 	exclusive 	representative
notice or an opportunity to bargain over the change; 	(3) 	the
change 	is 	not 	an 	isolated breach of 	contract but 	amounts 	to a
change 	in policy; 	and 	(4) 	the 	change 	in policy concerns a matter
within the 	scope 	of 	representation. 	(Regents at pp. 	3-4.)
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99

Had 	the 	University precipitously 	required UCD 	and 	LBL
firefighters 	to perform Technician-level 	duties 	in January of
1995, 	we would 	concur with the ALJ's 	determination that 	the
University's 	conduct 	constituted a unilateral 	change 	in violation
of HEERA section 3571(a) 	and 	(c). 	The circumstances of this
case, 	however, 	lead us to a different conclusion.
Although 	HEERA precludes 	the 	University 	from unilaterally
changing 	a 	term or 	condition of 	employment within 	the 	scope 	of
representation when 	employees 	are 	exclusively 	represented, 	the
University has 	no 	such obligation 	in 	the 	absence 	of 	an exclusive
representative. 	(Regents 	of 	the University of 	California v.
Public Employment Relations Bd. 	(1985) 	168 Cal.App.3d 937, 	945
[214 	Cal.Rptr. 	698] 	(noting that 	employee has 	right 	to be
represented but 	that 	nonexclusive 	representative 	has 	no 	right 	to
represent).) 	This 	case, 	of course, 	takes place during the
transition 	from no 	representation 	to 	exclusive 	representation.
During 	the 	transition period, 	the Board requires 	the
University to maintain the dynamic 	status 	quo. 	(Regents 	of 	the
-
University of California 	(1997) 	PERB Decision No. 	1188-H at
p. 	22, 	citing Clovis Unified School District 	(1984) 	PERB Decision
No. 	389; 	Regents at p. 	4.) 	Accordingly, 	during the transition
period, 	the University may, 	indeed must, 	implement decisions made
outside 	of 	the 	election period.
10

As 	noted above, 	the UCDFD and LBLFD 	instituted plans 	to
upgrade 	their HAZMAT 	response 	capabilities 	from the 	FRO 	to 	the
Technician level, 	in August of 	1992 and March of 	1993,
respectively. 	Over the next 	two years, 	the UCDFD and LBLFD
implemented training programs, 	purchased equipment, 	and
circulated a number 	of 	draft 	HAZMAT 	response plans 	to 	line
firefighters.
On March 10, 	1994, 	after the University had invested more
than a year preparing UCD and LBL 	firefighters 	to provide 	a
Technician-level 	HAZMAT 	response, 	UPTE 	filed a petition to become
the 	exclusive 	representative 	of 	a bargaining unit 	including 	those
firefighters. 	The Board certified UPTE as 	the 	exclusive
representative 	of 	that bargaining unit on December 1, 	1994, 	less
than a month before 	the 	University 	completed 	implementation 	of
Technician-level 	HAZMAT 	response plans 	for UCDFD and LBLFD.
The 	Board 	finds 	that 	the 	University devised and 	implemented
the 	changes 	at 	issue 	in this 	case over a number of years.
Although the 	final, 	formal 	adoption of 	the new HAZMAT response
plans 	did not 	occur until 	after UPTE's 	certification, 	the
University 	communicated 	its 	intention 	to make 	these 	changes 	to
the 	affected 	employees 	and 	completed partial 	implementation 	of
these 	changes 	long befor
. e UPTE's 	certification. 	These actions
fulfilled 	the 	University's 	duty 	to 	communicate 	proposed 	changes
to UCD and LBL 	firefighters, 	who were not 	exclusively represented
11

at 	that 	time. 	(Regents 	of 	the University of California v. 	Public
Employment Relations Bd. 	(1985) 	168 Cal.App.3d 937, 	945 	[214
Cal.Rptr. 	698].) 	UPTE's 	certification did not alter the
University's 	right 	to complete 	implementation of 	these 	changes.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-69-H are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Johnson 	joined in 	this 	Decision.
Chairman Caffrey's 	concurrence begins 	on page 	13.
12

CAFFREY, 	Chairman, 	concurring: 	The Regents of the
University of 	California 	(University) 	did not violate 	the Higher
Education Employer-Employee 	Relations Act 	(HEERA) 	by unilaterally
changing 	the hazardous material 	(HAZMAT) 	duties 	of 	firefighters
at 	the University of 	California at Davis 	(UCD) 	and the 	Lawrence
Berkeley Laboratory 	(LBL) 	without providing 	the University
Professional and Technical 	Employees, 	CWA Local 	9119, 	AFL-CIO
(UPTE) 	with notice or the opportunity to bargain over the 	change.
DISCUSSION
Under HEERA, 	the higher education employer must meet 	and
confer with 	the 	employee 	organization 	selected as 	the 	exclusive
representative 	of 	a bargaining unit.1 The nonexclusive 	employee
organization, 	however, 	has no independent 	right 	to represent 	its
members, 	and the higher education employer has 	no duty to meet
and confer with a nonexclusive 	representative. 	(Regents 	of 	the
University of 	California v. 	Public 	Employment 	Relations 	Bd.
(1985) 	168 Cal.App.3d 937 	[214 Cal.Rptr. 	698].) 	It is important
to 	take note 	of 	these 	fundamental 	principles 	in considering 	the
rights 	and obligations 	of 	parties 	during 	the period 	in which 	the
transition 	from no 	representation 	to 	exclusive 	representation 	is
occurring.
THEERA section 3570 	states:
Higher education employers, 	or such
representatives as 	they may designate, 	shall
engage 	in meeting and 	conferring with 	the
employee 	organization 	selected as 	exclusive
representative 	of 	an appropriate unit 	on all
matters 	within the 	scope 	of 	representation.
13

It 	is 	in this period that 	the 	conduct 	giving rise 	to 	the
instant 	case occurred. 	Interestingly, 	the Board has 	recently
considered 	two 	other 	cases 	involving 	the 	University and UPTE
which also 	involved 	conduct 	occurring 	during 	this 	transition
period.
In Regents 	of 	the University of 	California 	(1996) 	PERB
Decision No. 	1169-H 	(UC-UPTE 	I ) . 	the Board recognized the dynamic
status 	quo 	concept 	found 	in 	federal 	labor law. 	(Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51, 	citing NLRB
v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].) 	The Board concluded
that 	the 	University did not violate 	HEERA during 	this 	transition
period when 	it 	acted 	in accordance with 	its 	past 	practice 	and
adjusted 	health benefit 	contribution 	rates 	while 	the 	parties
negotiated 	over 	their 	first 	collective bargaining 	agreement.
In The Regents 	of the University of California 	(1997) 	PERB
Decision No. 	1188-H 	(UC-UPTE II). 	the Board noted that:
The 	transition 	from no 	representation 	to
exclusive 	representation must 	occur 	in a
manner that promotes 	stability, 	avoids
disruption and acknowledges 	the 	changing
relationships between the 	employer, 	employees
and exclusive 	representative, 	while
recognizing 	their 	rights 	and 	obligations
under HEERA. 	In this way, 	the public
interest 	in the development 	of 	harmonious 	and
cooperative 	labor relations 	is 	served.
In this 	case 	the University 	failed to grant 	to 	employees
transitioning 	to 	exclusive 	representation a pay 	increase 	which
had an effective date prior to, 	but 	an 	implementation date after,
certification of UPTE as 	exclusive 	representative. 	The Board
concluded 	that 	the University violated HEERA by 	failing 	to 	grant
14

the 	increase 	to the 	employees 	in question, 	because 	its 	timing was
clearly 	justified by 	factors 	other 	than 	the 	certification 	of 	UPTE
as 	the 	exclusive 	representative.
From these 	cases 	it 	is 	clear that, 	during the period of
transition to 	exclusive 	representation, 	the 	employer may 	continue
to make 	certain changes 	if 	the action 	is 	consistent with an
established practice, 	policy or rule. 	Further, 	the employer may,
and under some 	circumstances must, 	implement 	or complete
implementation of 	certain 	changes 	based on decisions made prior
to exclusive 	representation 	if 	the 	timing 	of a 	change 	is 	clearly
justified by 	factors 	other 	than 	the 	impending 	certification 	of
the 	exclusive 	representative.
Briefly recounting the 	facts 	of 	this 	case, 	it 	is undisputed
that 	the 	University made 	the 	decision 	to make 	the HAZMAT-related
changes2 at 	issue 	long before UPTE's 	certification as 	exclusive
representative on December 1, 	1994. 	It 	is also clear that
affected 	employees 	were 	aware 	of 	the University's 	decision and
the 	specific 	changes being made, 	and that most 	of 	the
implementation 	of 	the 	changes 	was 	accomplished prior 	to UPTE's
certification.
At UCD, 	on August 25, 	1992, 	the Assistant Vice Chancellor
announced 	that 	he 	would 	fully 	fund HAZMAT 	technician 	training 	for
2The 	changes 	involve upgrading HAZMAT 	response 	capability
from the 	first 	responder level, 	which is a defensive, 	containment
response, 	to technician level, 	which is an aggressive,
remediation 	response.
15

all 	UCD 	firefighters. 	UCD 	firefighters were 	trained at 	a HAZMAT
technician level 	between October 	1992 	and January 	1993. 	On
November 11, 	1993, 	Assistant Chief Michael 	Chandler 	(Chandler)
prepared a planning 	document 	regarding 	the 	implementation 	of
HAZMAT technician response status. 	The goal was 	to have 	the
requisite 	training 	completed 	and 	equipment 	obtained between 	July
and October 	1994. 	This plan was given to the UCD 	fire 	captains,
who were 	to 	disseminate 	this 	information 	to 	their 	respective
shifts. 	Quarterly planning 	sessions 	on HAZMAT training and
implementation status were held. 	Again, 	this 	information was 	to
be shared with the line personnel. 	On June 21, 	1994, 	a meeting
was 	held 	to 	finalize 	the 	training 	schedule 	to bring 	the 	HAZMAT
operation team into 	service. 	Chandler states 	that 	this
information was 	shared with UCD 	firefighters 	and 	that 	every
firefighter had some 	input 	into the plan. 	Meanwhile, 	on June 4
and June 10, 	1993, 	and August 29, 	1994, 	UCD firefighters
responded to HAZMAT 	incidents 	prepared 	to 	function at 	the
technician level. 	Commencing on October 11, 	1994, 	and continuing
for the next 	two months, 	HAZMAT 	technician and 	refresher training
was 	held at UCD.
At LBL, 	on February 24, 	1993, 	a HAZMAT committee was 	formed
by 	Fire 	Chief 	George Dietrich 	to develop a HAZMAT 	response plan
and 	requirements 	for HAZMAT equipment 	and personnel 	training.
LBL 	firefighters were 	involved in this process 	from its 	onset,
even to 	the 	point 	of 	LBL paying 	off-duty 	firefighters 	overtime 	so
that 	they could attend these monthly meetings. 	Assistant 	Chief
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Stacy Cox stated that when he arrived at 	LBL 	in March of 	1994, 	he
personally discussed HAZMAT 	issues 	with 	LBL 	firefighters.
Firefighters were 	informed on April 	4, 	1994, 	by memo 	from LBL
Fire 	Chief 	Billy White 	that 	they were 	to 	receive 	HAZMAT
technician training in April, 	May and June of 	1994. 	All 	LBL
firefighters 	received HAZMAT 	technician 	training 	and were
considered trained to that 	level by August 	18, 	1994. 	On July 7,
August 27 and September 14, 	1994, 	LBL firefighters 	responded to
HAZMAT 	incidents 	prepared 	to 	function at 	the 	technician 	level.
On December 1, 	1994, 	UPTE was 	certified by PERB as 	the
exclusive 	representative 	of 	a bargaining unit 	which 	includes 	the
UCD and LBL 	firefighters. 	Implementation of 	the 	HAZMAT changes
continued, 	including 	the 	revision of 	job descriptions 	and
adoption 	of 	an 	interim HAZMAT plan 	in December 	1994 	to 	reflect
the 	technician level 	response. 	Final 	HAZMAT response plans
incorporating 	the 	changes 	were 	formally adopted at 	UCD 	in July
1995, 	and at LBL in August 	1995.
It 	is 	clear 	from these 	facts 	that 	the University devised and
was 	actively 	involved 	in 	implementing 	over an 	extended period 	of
time 	the 	changes which are at 	issue 	in this 	case. 	The 	final,
formal 	adoption of 	those 	changes 	occurred after UPTE was
certified as 	exclusive 	representative, 	but 	that 	adoption was
merely the 	conclusion of 	a process which began 	in 	1992 	at UCD and
in 1993 	at LBL. 	During this process, 	the University made 	its
intention to make 	the 	changes 	clear to 	the affected employees,
and 	thereby 	fulfilled 	its 	duty 	toward 	nonexclusively 	represented
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employees 	as 	defined 	in Regents 	of 	the University of 	California
v. 	Public 	Employment 	Relations 	Bd.. 	supra 	168 	Cal.App.3d 937
[214 Cal.Rptr. 	698]. 	Further, 	most of the implementation steps
occurred prior 	to UPTE's 	certification as 	exclusive
representative, 	and the 	timing of 	the 	change was 	justified by
factors 	other than the pendency of 	the 	certification. 	Therefore,
under 	the 	concept 	of 	the dynamic 	status 	quo described 	in
UC-UPTE 	I. 	and the principles discussed in UC-UPTE 	II. 	the
University was 	free 	to 	complete 	implementation without 	bargaining
with UPTE. 	Accordingly, 	the University did not 	commit an
unlawful, 	unilateral 	change by its action, 	and the unfair
practice 	charge 	and 	complaint 	in 	this 	case must 	be 	dismissed.
As 	noted above, 	the 	transition to exclusive 	representation
must 	occur 	in a manner which promotes 	stability and avoids
disruption while 	acknowledging 	the 	changing 	relationship 	between
the parties. 	In this case, 	it would be destabilizing and
disruptive 	to 	require 	the University to negotiate with UPTE 	over
the HAZMAT-related changes 	it decided to make, 	and began to
implement, 	long before UPTE's 	certification as 	exclusive
representative.
18