Decision 1700H – Regents of the University of California

SF-CE-585-H

Decision Date: November 1, 2004

Decision Type: PERB Decision

Description:  Charge alleged university ban on union representative from all facilities was overbroad and union access rights were violated by several policies.

Disposition:  Board found ban on union representative overbroad and not narrowly tailored to time, place, manner restriction as it applied to all university facilities, even those open to public.  Requirement that union representative sign-in or verbally identify self prior to entering facilities and identify employee to be visited found reasonable.  Ban on all demonstrations found overbroad as policy did not address situations where demonstrations would be permissible and ban on use of phones to communicate with union unless in collective bargaining agreement found violation of HEERA.  Ban on access to laboratory reasonable due to lab operational realities.

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Perc Vol: 28
Perc Index: 270

Decision Headnotes

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

Access rights are within the scope of representation. (p. 2 & adopting proposed decision at p. 52.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02002 – Access – Subject of Bargaining

Access rights are within the scope of representation. (p. 2 & adopting proposed decision at pp. 52, 61.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

University’s 30-day campus-wide ban of union representative that included public areas and areas where there was no dispute as to representative’s access was overbroad and not narrowly drawn to time, place, and manner. (p. 3 & adopting proposed decision at pp. 63-65.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

“HEERA provides employee organization representatives, employee and nonemployee alike, with a presumptive right of access to employees at reasonable times in areas where they work. However, the access afforded must be reasonable in light of particular needs of the workplace in question.” (The Regents of the University of California, UCLA Medical Center (1983) PERB Decision No. 329-H, p. 5.) An employer may rebut the presumptive right of access by evidence that a regulation is necessary to prevent disruption of operations. (Id.) An important factor in weighing the right of access against employer regulation of access is the availability of alternative means of access. (Id. at p. 15.) In striking this balance, the Board has also considered the impact of the employer's regulation on the basic labor law principles set forth in the statutes it administers, which are designed to insure effective and nondisruptive organizational communications. (adopting proposed decision at pp. 45-46, 70, 76.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

The Board found respondent’s access policies at UCOP did not interfere with the right of employees to be represented by the union where the access restrictions were reasonable, non-discriminatory, and consistent with the parties’ memorandum of understanding. Specifically, respondent’s policy that a union representative identify an employee he or she intended to visit was a reasonable extension of the employer’s authority to require that visitors to its worksites identify themselves and state their business before entering the premises. However, a rule requiring a union representative to identify an employee or employees with whom he or she seeks to contact before permitting access to a non-work area such as a break room or cafeteria would not withstand HEERA scrutiny. (adopting proposed decision at pp. 53-56.)

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

An employer must provide to an exclusive representative, upon request, information that is necessary and relevant to the union’s representational obligations. (See Stockton Unified School District (1980) PERB Decision No. 143.) Information that pertains to a matter within the scope of representation is presumptively relevant. (State of California (Departments of Personnel Administration and Transportation) (1997) PERB Decision No. 1227-S, p. 5.) In this case the requested information related to existing access policies at UCOP, a matter within the scope of representation and relevant to UPTE's representational obligations. However, several University witnesses credibly testified that no written access policies existed, except for the relevant collective bargaining agreements. The University could not provide information that does not exist. (Id. at p. 13.) (adopting proposed decision at pp. 57-58.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

The Board found that University’s absolute ban on all demonstrations inside a University building was overbroad and not narrowly drawn to time, place, and manner. (adopting proposed decision at pp. 60-61.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

University’s new access policy effectively eliminated the possibility of unscheduled meetings between union representatives and employees. An access rule that interferes with an employee organization's ability to effectively use its representatives whose availability is “sporadic and unpredictable” is unreasonable. (adopting proposed decision at pp. 71-72.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

University’s policy prohibiting employee organizations and their representatives from using University phones “unless specifically permitted by a collective bargaining agreement” was an unreasonable regulation of the right of access to a means of communication. (adopting proposed decision at pp. 72-74.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.02000 – Access – Remedy for Unfair Practice

An appropriate remedy for University’s unlawful access restriction includes a cease and desist order, rescission of University’s absolute prohibition on demonstrations inside University buildings, and a notice posting. (adopting proposed decision at p. 96.)