Decision 2884H – Regents of the University of California
SF-CE-1339-H
Decision Date: December 6, 2023
Decision Type: PERB Decision
Description: After PERB accreted the Administrative Officer II (AO2) classification into a clerical bargaining unit at the University of California, three University medical centers changed AO2s’ eligibility for incentive award programs (IAPs). The University and the union representing the clerical unit both acknowledged that AO2s were immediately eligible for an across-the-board wage increase under the parties’ then-current contract, and the medical centers asserted that the contract became the status quo for IAPs, too. The ALJ found the University acted in a lawful manner, and the union filed exceptions.
Disposition: The Board affirmed, holding as follows. After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s IAP provision.
Perc Vol: 48
Perc Index: 91
Decision Headnotes
101.03000 – NLRA/LMRDA Precedent
California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB accordingly considers federal precedent only for its potential persuasive value. (The Accelerated Schools (2023) PERB Decision No. 2855, pp. 20-31; Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19; City of Bellflower (2020) PERB Order No. Ad-480-M, p. 11.) (p. 10, fn. 9.)
501.01000 – In General; Elements of Prima Facie Case
To prove discrimination, a charging party must prove by a preponderance of the evidence that the respondent acted with an improper motive, intent, or purpose. (Contra Costa Fire Protection District (2019) PERB Decision No. 2632-M. p. 40 (Contra Costa).) A charging party may do so using either of two frameworks. First, under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 and its progeny, the charging party’s prima facie case requires each of four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) Alternatively, if conduct facially discriminates based on protected activity, that is “discrimination in its simplest form,” and PERB may infer unlawful discrimination without further evidence of motive. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 27; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) Common examples of facial discrimination include: (1) providing different pay, benefits, or other working conditions based explicitly on union membership or other protected activity; and (2) changing policies in response to protected activity. (City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11 (Yuba City).) The conduct at issue may, but need not, involve disparate conduct toward different employee groups. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 81; LA Superior Court, supra, PERB Decision No. 2566-C, p. 15.) If an employer extends a benefit or increase to an unrepresented employee group while withholding it from a represented employee group (or vice versa), that can establish discrimination under either or both above standards, unless the difference is legitimately based on a non-discriminatory business reason. (Contra Costa, supra, PERB Decision No. 2632-M, pp. 41-42.) The employer has the burden to prove that the difference is based on a non-discriminatory reason, which may include differing skills, qualifications, or duties, market pressures, promotional incentives, or lawful collective bargaining in which a union has exerted pressure to achieve better terms than other employee groups, traded one benefit for another, or rejected a nondiscriminatory offer and thereby fallen behind other groups. (Id. at pp. 38-42 & 51-52; Yuba City, supra, PERB Decision No. 2603-M, pp. 11-13; LA Superior Court, supra, PERB Decision No. 2566-C, pp. 15-17.) (pp. 15-17.)
502.01000 – In General
During the timeframe that the University litigated the accretion petition’s merits, the petitioned-for class remained unrepresented and the University had no bargaining obligation with respect to the petitioned-for class, but the University would have discriminated against protected activity had it used the pending unit modification petition as a reason to deny the petitioned-for class the wage adjustments due to them as unrepresented employees. (See, e.g., Regents of the University of California (1997) PERB Decision No. 1188-H, pp. 31 & 36 [University discriminated against protected activity by failing to implement wage adjustments for nonexclusively represented employees because representation petition was pending; as a remedy, University ordered to implement such adjustments retroactively].) (p. 13.)
602.01000 – In General
After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.)
602.01000 – In General
Pending first contract negotiations (after employees in a previously unrepresented unit become represented), the status quo regarding wage adjustments is measured by employees’ previous expectation. (Daily News of Los Angeles v. National Labor Relations Bd. (D.C. Cir. 1996) 73 F.3d 406, 411-414 (Daily News), cited with approval in County of Kern (2018) PERB Decision No. 2615-M, p. 7, fn. 6; Liberty Telephone & Communication, Inc. (1973) 204 NLRB 317, 318.) (pp. 14-15 & fn. 13.)
608.01000 – In General
After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.)
1107.13000 – Administrative and Judicial Notice
The Board took permissive administrative notice of the parties’ CBA. (See, e.g., Bell v. City of Torrance (1990) 226 Cal.App.3d 189, 192 fn. 2 [taking judicial notice of public sector collective bargaining agreement].) (p. 8, fn. 8.)
1310.07000 – Accretion, Adding classification(s) to existing unit (PERB jurisdictions)
After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.)
1310.07000 – Accretion, Adding classification(s) to existing unit (PERB jurisdictions)
Accretions are more common in the public sector given that PERB’s accretion precedent deviates significantly from federal law. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 28; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 5-9, affd. Regents of the University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159.) (p. 11.)