Decision 2852H – Regents of the University of California

To prove a prima facie case of an unlawful unilateral change, a charging party must show that: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (p. 9.)

A union can prove that an employer changed or deviated from the status quo by showing: (1) deviation from a written agreement or written policy, (2) a change in established past practice, or (3) a newly created policy or application or enforcement of existing policy in a new way. UC Santa Cruz’s September 27, 2019 letter set the status quo against which the Board measured the policy change announced in UC Santa Cruz’s November 25, 2020 letter, viz., the action alleged in the complaint to constitute the unlawful unilateral change. The September 27, 2019 letter acknowledged there were “many employees on campus with multiple staff or academic appointments which cross bargaining units and FLSA statuses.” However, nowhere in the September 27, 2019 letter did UC Santa Cruz indicate it was considering a prohibition against concurrently holding a non-exempt staff position and an exempt academic position. But its November 25, 2020 letter announced just such a policy, thereby changing the status quo. (pp. 10-11.)

The University waived any untimeliness argument by not asserting the statute of limitations as an affirmative defense in its answer. (p. 12, fn. 8.)

Under HEERA, “[a] subject is within the scope of representation” “as a ‘term or condition of employment’” “if: (1) it involves the employment relationship, (2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer’s mission.” Applying this test, the Board found that UC Santa Cruz’s decision to adopt a prohibition against concurrent appointments in FLSA exempt and non-exempt positions was within the scope of representation. (pp. 13-17.)

While the ultimate decision as to whom to hire for a particular position is left to management’s discretion, it is well-established that criteria for personnel selection are within the scope of representation. Because UC Santa Cruz’s concurrent appointment policy establishes a general hiring criterion for every lecturer appointment, i.e., that they cannot also be employed in a FLSA non-exempt position, it “involves the employment relationship.” (pp. 13-14.)

Criteria for reemployment of temporary faculty is within the scope of representation. Because UC Santa Cruz’s concurrent appointment policy establishes a general hiring criterion for every lecturer appointment, i.e., that they cannot also be employed in a FLSA non-exempt position, it “involves the employment relationship.” (pp. 13-14.)

Although the amount of time varies depending on the circumstances of each case, “an employer must give notice sufficiently in advance of reaching a firm decision to allow the representative an opportunity to consult its members and decide whether to request information, demand bargaining, acquiesce to the change, or take other action.” Here, UC-AFT first learned of the University’s new concurrent employment policy when UC Santa Cruz announced the implementation of the policy in its November 25, 2020 letter. Indeed, UC Santa Cruz had already implemented the policy when it rescinded a lecturer appointment the prior month. The Board thus had no difficulty concluding that the University did not provide UC-AFT adequate notice or opportunity to meet and confer over UC Santa Cruz’s decision to adopt the concurrent appointment policy. (pp. 17-18.)

Announcing a new policy as a fait accompli does not trigger a duty to demand bargaining and cannot support a waiver defense. (p. 18, fn. 10.)

As a result of applying its unilaterally-adopted concurrent appointment policy, UC Santa Cruz eliminated a Non-Senate Faculty (NSF) Unit Member’s appointment as a 15 percent full-time equivalent lecturer and modified his non-exempt appointment to include the NSF Unit work. Because this conduct unilaterally modified the NSF Unit without UC-AFT’s agreement or utilization of PERB’s unit modification procedures, and also unilaterally modified Article 1 of the parties’ Agreement without providing UC-AFT notice and an opportunity to bargain, the Board concluded that the University violated HEERA section 3571, subdivisions (a) and (c). (pp. 20-21.)

As a result of applying its unilaterally-adopted concurrent appointment policy, UC Santa Cruz eliminated a Non-Senate Faculty (NSF) Unit Member’s appointment as a 15 percent full-time equivalent lecturer and modified his non-exempt appointment to include the NSF Unit work. Because this conduct unilaterally modified the NSF Unit without UC-AFT’s agreement or utilization of PERB’s unit modification procedures, and also unilaterally modified Article 1 of the parties’ Agreement without providing UC-AFT notice and an opportunity to bargain, the Board concluded that the University violated HEERA section 3571, subdivisions (a) and (c). (pp. 20-21.)

To remedy the University’s unilateral modification of the Non-Senate Faculty (NSF) Unit, the Board ordered the University to restore the 15 percent full-time equivalent lecturer position formerly held by an NSF Unit Member, make the Unit Member whole for any wages, benefits, or credit toward the six-year requirement for continuing status he lost as a result of the elimination of the lecturer position with interest at a rate of seven percent per year, and cease-and-desist from modifying the NSF Unit without UC-AFT’s agreement or utilizing PERB’s unit modification process. (p. 22.)

To make employees whole for the denial of lecturer appointments under an unlawfully adopted policy prohibiting concurrently holding a FLSA non-exempt staff position and a FLSA-exempt academic position, the Board ordered that affected employees be granted appropriate credit toward the six-year requirement for “continuing status” under the University’s collective bargaining agreement with UC-AFT. (p. 22.)