Decision 1188H – Regents of the University of California (University Professional and Technical Employees)

SF-CE-414-H

Decision Date: March 19, 1997

Decision Type: PERB Decision

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Perc Vol: 21
Perc Index: 28067

Decision Headnotes

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

The Board orders make whole remedies to compensate employees for the difference between what they actually earned and what they would have earned but for the employer's discriminatory conduct; p. 32. The Board abandons the Civil Procedure sec. 685.010 10 percent rate of interest on backpay awards because it results in a disparate approach; p. 34. The Board is not bound by the 7 percent Constitutional rate of interest, but finds that 7 percent effectuates the purposes of HEERA in this case; p. 35.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

The duty to meet and confer attaches when PERB certifies the exclusive representative, not the date of the election; p. 19.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Unlawful motivation or actual harm to employee rights is not required in interference cases; p. 21.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.02000 – Exclusive Representatives

The duty to meet and confer attaches when PERB certifies the exclusive representative, not the date of the election; p. 19.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.06000 – Nonexclusive Representatives

Under HEERA, the nonexclusive representative has no independent right to represent is members, and the higher education employer has no duty to meet and confer with a nonexclusive employee organization on matters within the scope of representation; p. 18. For nonexclusively represented employees, the employer's decision becomes effective when it is clear the employer decided to implement the program, not the date the employer subsequently implements the program; p. 21.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.03000 – Activities for Nonexclusive Representative – Protected Right

Nonrepresented employees have the protected right to participate in a PERB conducted representation election to select an exclusive representative; p. 22 and 28. An employer's conduct that impedes the employees' right to freely choose an exclusive representative may form the basis for an unfair practice charge; p. 22.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Nonrepresented employees have the protected right to participate in a PERB conducted representation election to select an exclusive representative; p. 22 and 28. An employer's conduct that impedes the employees' right to freely choose an exclusive representative may form the basis for an unfair practice charge; p. 22.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.03000 – Promise of or Withholding of Benefits

During the election process, the employer may not grant or withhold benefits unless: (1) operational necessity or factors other than the pendency of the election justify the decision and timing; or (2) the action is consistent with past practice; p. 30. Neither granting or withholding benefits during the election process is per se unlawful. The test is whether the employer manipulates benefits to influence the employees' decision during the union's organizing campaign; p. 30. PERB applies an objective standard to determine if an employer's speech contains a threat or promise of benefit, view the employer's statement in light of the surrounding circumstances and places considerable weight on the accuracy of the speech; p. 23. When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's consequences of a union victory that did not flow naturally from the collective bargaining relationship and were totally within the employer's control. Therefore, the speech contained a threat of reprisal and lost its free speech protection; p. 26. Employer's good faith understanding of its bargaining obligation is irrelevant.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech

PERB applies an objective standard to determine if an employer's speech contains a threat or promise of benefit, view the employer's statement in light of the surrounding circumstances and places considerable weight on the accuracy of the speech; p. 23. When it was clear PERB would not certify an exclusive representative before the employer granted a pay increase, the employer's statement that if employee's elected an exclusive representative their pay increase would be subject to bargaining described consequences of a union victory that did not flow naturally from the collective bargaining relationship and were totally within the employer's control. Therefore, the speech contained a threat of reprisal and lost its free speech protection; p. 26. Employer's good faith understanding of its bargaining obligation is irrelevant. Employer's good faith understanding of its bargaining obligation is irrelevant.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32.

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Nonrepresented employees have the protected right to participate in a PERB conducted representation election to select an exclusive representative; p. 22 and 28.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.10000 – Wages, Bonuses, Incentives; Severance Pay

Denying a salary increase if employees choose an exclusive representative constitutes adverse action; p. 28.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.12000 – Employer Statements or Conduct; Threats

Employer's statement that they were withholding a salary increase due to the employees' participation in a representation election establishes nexus; p. 29.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.11000 – Legitimate Business Purpose/Business Necessity

During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Since the employer has no obligation to meet and confer with the nonexclusive representative under HEERA, an employer's change prior to certification is not an unlawful unilateral change; p. 27.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

For nonexclusively represented employees, the employer's decision becomes effective when it is clear the employer decided to implement the program, not the date the employer subsequently implements the program; p. 21.

607.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DUTY TO CONSULT
607.02000 – With Nonexclusive Representatives

For nonexclusively represented employees, the employer's decision becomes effective when it is clear the employer decided to implement the program, not the date the employer subsequently implements the program; p. 21.

1000.00000 – SCOPE OF REPRESENTATION
1000.02125 – Salaries or Wages

During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32.

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.11000 – Employer Conduct

During election process, the employer may not grant or withhold benefits unless: (1) operational necessity or factors other than the pendency of the election justify the decision or timing; or (2) the action is consistent with past practice; p. 30.

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
1304.03000 – Employer Conduct

During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32.