Decision 2610H – Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)

SF-CE-1047-H

Decision Date: December 19, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 100

Decision Headnotes

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

University’s decision to transfer certain operations to a non-University entity was negotiable under Board law. There was ample evidence that the decision was motivated in large part by personnel issues, including labor costs, which were eminently amenable to resolution through collective bargaining. The record also establishes that the University’s decision to close its operation coincided with, and was influenced by, its decision to continue providing the services with many of the same employees but under the auspices of a non-University entity.

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

Fact that the University serves as a funding conduit to out-sourced program and does not hire employees, set salaries or directly supervise the provision of services does not eliminate its bargaining obligation. Grant funding is not unique to this program. Much of the University’s scientific research laboratory work is funded by federal grants. Similarly, the out-sourced program’s mission is similar to others of the University.

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

Because the University’s decision to close the program and transfer its operations to a non-University entity was based, in large part, on personnel matters, including labor costs, which were subject to resolution through collective bargaining, and because its practical effect was to continue essentially the same service under different organizational auspices, we conclude that the decision was subject to negotiation.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

University failed to satisfy its duty to provide sufficient notice of a contemplated change when it informed union that it was considering discontinuing a long-time program but made no mention, in any of these communications, of the University’s plans to subcontract or “transfer” the program’s operations to a “successor” organization. By the time the union learned of the transfer, it was well underway.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Although the University argued in its post-hearing brief that union had waived any right to meet and confer by failing to request negotiations, it is well-settled that a union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue, until after the employer had already reached a firm decision.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Where University failed to give adequate notice of negotiable decision, it necessarily also failed to provide adequate notice and opportunity to bargain over the negotiable effects of that decision.