Regents of the University of California (Davis) (PERB 2101H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COALITION OF UNIVERSITY EMPLOYEES,	COALITION OF UNIVERSITY EMPLOYEES,
Charging Party,	Charging Party,
V.
REGENTS OF THE UNIVERSITY OF	REGENTS OF THE UNIVERSITY OF
CALIFORNIA (DAVIS),	CALIFORNIA (DA VIS),
Respondent.	Respondent.
Case Nos. SA-CE-246-H,	Case Nos. SA-CE-246-H,
SA-CE-247-H, SA-CE-251-H,	SA-CE-247-H, SA-CE-251-H,
SF-CE-760-H, SF-CE-795-H	SF-CE-760-H, SF-CE-795-H
PERB Decision No. 2101-H	PERB Decision No. 2101-H
March 1, 2010	March 1, 2010
Appearances:	Appearances: Davis, Cowell & Bowe by Winifred V. Kao, Attorney, for Coalition
ofDavis, Cowell & Bowe by Winifred V. Kao, Attorney, for Coalition of
University Employees; Hanson Bridgett, Marcus, Vlahos & Rudy by Michael D. Moye andUniversity Employees; Hanson Bridgett, Marcus, Vlahos & Rudy by Michael D. Moye and
Molly A. Lee, Attorneys, for Regents
of
the University
of
California (Davis).	Molly A. Lee, Attorneys, for Regents of the University of California (Davis).
Before Dowdin Calvillo, Acting Chair; Mckeag and Neuwald, Members.	Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board	McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Regents
of
the University
of
California (Davis) (University)(PERB or Board) on appeal by the Regents of the University of California (Davis) (University)
of
a proposed decision by an administrative law judge (ALJ). The Coalition
of
University
of a proposed decision by an administrative law judge (ALD). The Coalition of University
Employees (CUE) alleged that the University violated the Higher Education Employer-	Employees (CUE) alleged that the University violated the Higher Education Employer-
Employee Relations Act (HEERA) 1 when it replaced unit work in violation
of
the parties'Employee Relations Act (HEERA)' when it replaced unit work in violation of the parties'
memorandum
of
understanding, and when it failed to provide information upon request. 	CUEmemorandum of understanding, and when it failed to provide information upon request. CUE
alleged that this conduct constituted a violation ofHEERA section 3571(a), (b) and (c).	alleged that this conduct constituted a violation of HEERA section 3571(a), (b) and (c).
The instant case is comprised
of
five consolidated cases. In each case, CUE alleged the	The instant case is comprised of five consolidated cases. In each case, CUE alleged the
University unilaterally changed a policy
of
providing CUE notice and an opportunity to meet
University unilaterally changed a policy of providing CUE notice and an opportunity to meet
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

and confer in cases in which the University replaced a major portion of work performed by an	and confer in cases in which the University replaced a major portion
of
work performed by an
employee in a CUE	employee in a CUE bargaining unit with a position outside the bargaining unit. Additionally,	bargaining unit with a position outside the bargaining unit. Additionally,
in one
of
the five consolidated cases (Case No.	in one of the five consolidated cases (Case No. SF-CE-760-H), CUE alleged the University	SF-CE-760-H), CUE alleged the University
refused to provide information in response to two separate information requests.	refused to provide information in response to two separate information requests.
We have	We have reviewed the entire record in this case and find that Case No. SA-CE-251-H	reviewed the entire record in this case and find that Case No. 	SA-CE-251-H
(Tina Perez) was not timely filed	(Tina Perez) was not timely filed and, therefore, time-barred by application of PERB's six	and, therefore, time-barred by application
of
PERB's six
month statute
of
limitations. In addition, we find	month statute of limitations. In addition, we find the University committed an unlawful	the University committed an unlawful
unilateral change in Case Nos. SA-CE-247-H (Refractive Surgery), SF-CE-795-H (Berkeleyunilateral change in Case Nos. SA-CE-247-H (Refractive Surgery), SF-CE-795-H (Berkeley
PMD	PMD Department) and SA-CE-246-H (Kimberly Pearson) but did not commit an unlawful	Department) and SA-CE-246-H (Kimberly Pearson) but did not commit an unlawful
unilateral change in Case No. SF-CE-760-H (International House). Last, we find the	unilateral change in Case No. SF-CE-760-H (International House). Last, we find the
University failed to provide	University failed to provide information requested by CUE without adequate justification in	information requested by CUE without adequate justification in
violation of HEERA section 3571(c).	violation
of
HEERA section 357l(c).
FINDINGS OF FACT	FINDINGS OF FACT
CUE is an employee	CUE is an employee organization within the meaning of HEERA section 3562(f)(1)	organization within the meaning
of
HEERA section 3562(f)(l)
and the exclusive representative
of
an appropriate unit
of
University employees within theand the exclusive representative of an appropriate unit of University employees within the
meaning
of
Section	meaning of Section 3562(i). The University is a higher education employer within the	3562(i). The University is a higher education employer within the
meaning
of
Section 3562(g).	meaning of Section 3562(g).
A. 	Background
CUE represents a bargaining unit composed of clerical and other administrative support	CUE represents a bargaining unit composed
of
clerical and other administrative support
employees. The instant dispute arises out of the alleged unilateral repudiation of the following
language from Article 2, section E of the parties' 2003-2004 memorandum of understanding
(2003-04 MOU):2
2
2
The 2003-04 MOU expired on September 30, 2004. The successor MOU did not take	The 2003-04 MOU expired on September 30, 2004. The successor MOU did not take
effect until February 2006. However, because of the carryover of provisions contained in the	effect until February 2006. However, because of the carryover of provisions contained in the
expired MOU, the provisions of the 2003-04 MOU applied at all times relevant herein.	expired MOU, the provisions of the 2003-04 MOU applied at all times relevant herein.
2

RECLASSIFICATION FROM UNIT TO NON-UNIT	RECLASSIFICATION FROM UNIT TO NON-UNIT
POSITIONS	POSITIONS
In the event the University determines that a position or title	In the event the University determines that a position or title
should	should be reclassified or designated for exclusion from the unit,	be reclassified or designated for exclusion from the unit,
or the University intends to replace a major portion of a	or the University intends to replace a major portion of a
bargaining unit position with a position in a classification outside	bargaining unit position with a position in a classification outside
of the unit, the University shall notify CUE in writing at least	of the unit, the University shall notify CUE in writing at least
thirty (30) calendar days prior to the proposed implementation. If	thirty (30) calendar days prior to the proposed implementation. If
CUE determines to challenge the University's proposed action, it	CUE determines to challenge the University's proposed action, it
shall notify the University in writing within thirty (30) calendar	shall notify the University in writing within thirty (30) calendar
days	days from the date on which the University's notice was mailed,	from the date on which the University's notice was mailed,
and the proposed effective date will be extended by thirty (30)	and the proposed effective date will be extended by thirty (30)
calendar days. During such an extension, the parties will meet	calendar days. During such an extension, the parties will meet
and discuss the University's proposed action. If the parties are	and discuss the University's proposed action. If the parties are
unable to reach agreement regarding the University's proposed	unable to reach agreement regarding the University's proposed
action, the University may commence PERB unit modification	action, the University may commence PERB unit modification
procedures, as outlined under PERB regulations. Until the	procedures, as outlined under PERB regulations. Until the
bargaining unit assignment is either agreed to by the parties or	bargaining unit assignment is either agreed to by the parties or
finally resolved through the PERB unit modification procedures,	finally resolved through the PERB unit modification procedures,
(1) the affected position(s) or title(s) shall remain in the unit and	(1) the affected position(s) or title(s) shall remain in the unit and
shall remain covered by all provisions of this agreement, (2) the	shall remain covered by all provisions of this agreement, (2) the
University may, in compliance with Article 45 -Wages, Section	University may, in compliance with Article 45 -Wages, Section
D, Other Increases, of this Agreement, increase compensation for	D, Other Increases, of this Agreement, increase compensation for
the affected position(s) or title(s), and (3) the duties associated	the affected position(s) or title(s), and (3) the duties associated
with the proposed reclassification may be assigned to the affected	with the proposed reclassification may be assigned to the affected
employees(s). (Emphasis added.)	employees(s). (Emphasis added.)
CUE's unit includes a variety of job classifications, some of which exist within a	CUE's unit includes a variety of job classifications, some of which exist within a
"series concept." The "L) assistant" (referred to as "blank assistant") classification is a	"series concept." The "( ) assistant" (referred to as "blank assistant") classification is a
common payroll title within the University system. The series includes ( ) assistant I, ()	common payroll title \Vithin the University system. The series includes L) assistant I, (_)
assistant II, ( ) assistant III, and, on at least one campus, ( ) assistant IV. The "blank" is	assistant II, (_) assistant III, and, on at least one campus, (_) assistant IV. 	The "blank" is
often filled with a term such as "payroll" or "administrative" so as to specifically describe theoften filled with a term such as "payroll" or "administrative" so as to specifically describe the
position. Classifications into which ( ) assistants are typically reclassified at higher rates of	position. Classifications into which (_) assistants are typically reclassified at higher rates of
pay are the administrative specialist and administrative analyst classifications. These	pay are the administrative specialist and administrative analyst classifications. These
classifications, however, are not in CUE's bargaining unit.	classifications, however, are not in CUE's bargaining unit.
33

B.	B. 	Prior Disputes Regarding Article 2.E	Prior Disputes Regarding Article 2.E
n	In 2001, a dispute arose regarding the predecessor language of Article 2.E contained i	In 2001, a dispute arose regarding the predecessor language of Article 2.E contained i
the 3
the parties' first negotiated agreement." That language, which expressed the notice obligation	parties' first negotiated agreement. 	That language, which expressed the notice obligation
in more limited fashion, provided, "[ijn the event the University determines that a position	in more limited fashion, provided, "[i]n the event the University determines that a position
should be reclassified or designated for exclusion with the result that the position would be	should be reclassified or designated for exclusion with the result that the position would be
removed from the unit ... " CUE filed an unfair practice charge in connection with this	removed from the unit . . ." CUE filed an unfair practice charge in connection with this
dispute, but eventually settled the matter with the University.	dispute, but eventually settled the matter with the University.
n
In the 2003-04 MOU new language was added to Article 2.E that extended the notice	In the 2003-04 MOU new language was added to Article 2.E that extended the notice
obligations to cases where the University "intended" to replace a "major portion" of the work	obligations to cases where the University "intended" to replace a "major portion" of the work
performed in a bargaining unit position with a non-bargaining unit position. The parties agree	performed in a bargaining unit position with a non-bargaining unit position. The parties agree
that "major portion" means at least 50 percent of the position's duties. According to	that "major portion" means at least 50 percent of the position's duties. According to
Margy Wilkinson (Wilkinson), CUE's chief negotiator when the revision was adopted, the	Margy Wilkinson (Wilkinson), CUE's chief negotiator when the revision was adopted, the
addition was written "fairly broadly" to address the wide variety of ways in which bargaining	addition was written "fairly broadly" to address the wide variety of ways in which bargaining
unit work could be reassigned out of the unit.	unit work could be reassigned out of the unit.
Additionally, CUE filed a grievance regarding the University's alleged breach of	Additionally, CUE filed a grievance regarding the University's alleged breach of
Article 2.E in which it claimed that the University wrongfully filled open administrative	Article 2.E in which it claimed that the University wrongfully filled open administrative
analyst or administrative specialist positions (non-bargaining unit positions) by reassigninganalyst or administrative specialist positions (non-bargaining unit positions) by reassigning
L_) assistant incumbents to such positions. In the ensuing arbitration, CUE argued a similar() assistant incumbents to such positions. In the ensuing arbitration, CUE argued a similar
theory to the one advanced in the instant case. In December of 2005, Barry Winograd	theory to the one advanced in the instant case. In December of 2005, Barry Winograd
(\Vinograd) issued an arbitration decision in which, among other things, he interpreted	(Winograd) issued an arbitration decision in which, among other things, he interpreted
Article 2.E. Finding in favor of CUE, Winograd stated:	Article 2.E. Finding in favor of CUE, Winograd stated:
4
CCUE	UE was recognized as the exclusive representative in May 1997.	was recognized as the exclusive representative in May 1997.

Here, abundant evidence was offered that in several instances the	Here, abundant evidence was offered that in several instances the
University at first sought to follow the established and required	University at first sought to follow the established and required
reclassification approach, but then shifted gears once the Union	reclassification approach, but then shifted gears once the Union
raised	raised questions or expressed concerns. By then posting non-unit	questions or expressed concerns. By then posting non-unit
positions and hiring unit incumbents into the positions, or by	positions and hiring unit incumbents into the positions, or by
doing so without even a posting, all without recourse to the	doing so without even a posting, all without recourse to the
PERB, the University violated the labor agreement since the	PERB, the University violated the labor agreement since the
duties for the affected positions. whether vacant or not. either did	duties for the affected positions, whether vacant or not, either did
not change or remained largely the same. 	[Emphasis added.]	not change or remained largely the same. [Emphasis added.]
C.	C. Unilateral Change Allegations	Unilateral Change Allegations
As indicated above, the instant case consists of five consolidated cases, all of which	As indicated above, the instant case consists of five consolidated cases, all of which
allege the University committed an unlawful unilateral change when it replaced major portions	allege the University committed an unlawful unilateral change when it replaced major portions
of work performed by a position within the CUE bargaining unit to a position outside the	of work performed by a position within the CUE bargaining unit to a position outside the
bargaining unit. The following is a factual summary of the unilateral change allegations	bargaining unit. The following is a factual summary of the unilateral change allegations
organized by each consolidated case.	organized by each consolidated case.
11. . 	Case No. SA-CE-251-H (Tina Perez)	Case No. SA-CE-251-H (Tina Perez)
5
The Information and Educational Technology (IET) Department employs a number of	The Information and Educational Technology (IET) Department employs a number of
staff to handle its human resource functions, such as recruitment, selection and records	staff to handle its human resource functions, such as recruitment, selection and records
management. Tina Perez (Perez) worked in the IET Department as an analyst II. 	She was one	management. Tina Perez (Perez) worked in the IET Department as an analyst II. She was one
of a complement of three analysts.	of a complement of three analysts.
Following a departmental reorganization in July 2003, one of the analysts,	Following a departmental reorganization in July 2003, one of the analysts,
Nancy Harrington (Harrington), became Perez's supervisor. Harrington reviewed Perez's	Nancy Harrington (Harrington), became Perez's supervisor. Harrington reviewed Perez's
work and concluded Perez was not performing satisfactorily. After two years of observation,	work and concluded Perez was not performing satisfactorily. After two years of observation,
Harrington proposed the following two options to Perez: (1) continue in the analyst position	Harrington proposed the following two options to Perez: (1) continue in the analyst position
with the prospect of a negative evaluation, or (2) release her problematic duties, likely	with the prospect of a negative evaluation, or (2) release her problematic duties, likely
resulting in a downward reclassification, and seek an outside position with assistance from the	resulting in a downward reclassification, and seek an outside position with assistance from the
department. Perez chose the latter option. Over time, the duties involving advising managers	department. Perez chose the latter option. Over time, the duties involving advising managers
5

on performance issues, taking corrective action, and interaction with employees were removed	on performance issues, taking corrective action, and interaction with employees were removed
from Perez and shifted to Harrington and another analyst.	from Perez and shifted to Harrington and another analyst.
Eventually, a revised job description was prepared for review by the campus	Eventually, a revised job description was prepared for review by the campus
classification and compensation unit. A downward reclassification of Perez's position to a	classification and compensation unit. A downward reclassification of Perez's position to a
() assistant III was approved, but Perez's higher salary was red-circled. Harrington delayed	(_) assistant III was approved, but Perez's higher salary was red-circled. Harrington delayed
implementation of the reclassification, allowing Perez to search for another analyst position.	implementation of the reclassification, allowing Perez to search for another analyst position.
Perez resigned from the ( ) assistant III position in December 2005.	Perez resigned from the (_) assistant III position in December 2005.
6
Following Perez's departure, Harrington debated whether to fill the position vacated by	Following Perez's departure, Harrington debated whether to fill the position vacated by
Perez or return to the original configuration of three analysts. Harrington concluded that she	Perez or return to the original configuration of three analysts. Harrington concluded that she
wanted to return to the complement of three analysts. On December 2, 2005, the University	wanted to return to the complement of three analysts. On December 2, 2005, the University
posted a job vacancy announcement for a non-bargaining unit analyst position. The position	posted a job vacancy announcement for a non-bargaining unit analyst position. The position
was filled by Elisabeth Adler-Lund.	was filled by Elisabeth Adler-Lund.
At some point in December, CUE Representative Beverly Kelley (Kelley) submitted a	At some point in December, CUE Representative Beverly Kelley (Kelley) submitted a
request for information as follows:	request for information as follows:
Please	Please provide a copy of the previous job description and a copy	provide a copy of the previous job description and a copy
of the job description that was reviewed by Compensation and	of the job description that was reviewed by Compensation and
Classification	Classification that resulted in the decision to remove the position,	that resulted in the decision to remove the position,
previously held by Tina L. Perez, from the CUE bargaining unit,	previously held by Tina L. Perez, from the CUE bargaining unit,
and make it a non-represented position.	and make it a non-represented position.
The University mailed its response to her request on December 20, 2005. The response	The University mailed its response to her request on December 20, 2005. The response
included a job description of the open analyst position, Perez's former analyst job description,	included a job description of the open analyst position, Perez's former analyst job description,
and her most recent(_) assistant III job description.	and her most recent ( ) assistant III job description.
The charge was filed on July 14, 2006, alleging a wrongful replacement of unit work	The charge was filed on July 14, 2006, alleging a wrongful replacement of unit work
within the IET department at the Davis campus.	within the IET department at the Davis campus.
6

2.	2. Case No. SA-CE-246-H (Kimberly Pearson)	Case No. SA-CE-246-H (Kimberly Pearson)
The IET Department at UC Davis has five sub-units, one of which is Mediaworks.	The IET Department at UC Davis has five sub-units, one of which is Mediaworks.
Mediaworks provides graphic, photographic, audio/video, illustration, animation/simulation	Mediaworks provides graphic, photographic, audio/video, illustration, animation/simulation
and programming services for the campus. Kimberly Pearson (Pearson) was a (_) assistant III	and programming services for the campus. Kimberly Pearson (Pearson) was a ( ) assistant III
in Mediaworks until her departure in early 2005. The position remained vacant for several	in Mediaworks until her departure in early 2005. The position remained vacant for several
months.	months.
Patricia Mitchell (Mitchell), a ( ) assistant II in the IET business services sub-unit,	Patricia Mitchell (Mitchell), a(_) assistant II in the IET business services sub-unit,
noticed that Pearson's(_) assistant III position was not posted following her departure.4
noticed that Pearson's ( ) assistant III position was not posted following her departure.*
Instead, on April 6, 2005, Mitchell saw an electronic job posting for a financial and	Instead, on April 6, 2005, Mitchell saw an electronic job posting for a financial and
administrative analyst I position in Mediaworks. Mitchell reviewed the posted job description	administrative analyst I position in Mediaworks. Mitchell reviewed the posted job description
and concluded that it comprised the same duties as Pearson's position, but with the added duty	and concluded that it comprised the same duties as Pearson's position, but with the added duty
of financial and statistical report generation. The vacant analyst I position was subsequently	of financial and statistical report generation. The vacant analyst I position was subsequently
filled by Diana Francis (Francis). According to observations made by Mitchell, Francis	filled by Diana Francis (Francis). According to observations made by Mitchell, Francis
generates financial reports under the direction of the lead business services budget analyst,	generates financial reports under the direction of the lead business services budget analyst,
arranges meetings for the directors and managers, prepares entertainment expense reports, and	arranges meetings for the directors and managers, prepares entertainment expense reports, and
processes purchase order requests.	processes purchase order requests.
7
Sometime after seeing the job posting, Mitchell, along with her co-worker,	Sometime after seeing the job posting, Mitchell, along with her co-worker,
Bridgett Moon (Moon), told CUE representative Kelley that they believed the job posting was	Bridgett Moon (Moon), told CUE representative Kelley that they believed the job posting was
for Pearson's position. There is no evidence in the record, however, when Mitchell shared this	for Pearson's position. There is no evidence in the record, however, when Mitchell shared this
information with Kelley, nor is there any evidence regarding when Kelley became aware of the	information with Kelley, nor is there any evidence regarding when Kelley became aware of the
vacancy.	vacancy.
4
*Mitchell interacted with Pearson one or two days per month and claims she had some	Mitchell interacted with Pearson one or two days per month and claims she had some
familiarity with Pearson's work based on this interaction.	familiarity with Pearson's work based on this interaction.
7

After she was informed of the University's alleged replacement of Pearson's(_)	After she was informed of the University's alleged replacement of Pearson's ()
assistant III position, Kelley submitted a request for a job description for the period "after the	assistant III position, Kelley submitted a request for a job description for the period "after the
reclassification for the position previously held by Kimberley Pearson." On October 11, 2005,	reclassification for the position previously held by Kimberley Pearson." On October 11, 2005,
the University responded to the request and stated the analyst position was submitted for a	the University responded to the request and stated the analyst position was submitted for a
classification determination on March 20, 2005. The response further stated the University	classification determination on March 20, 2005. The response further stated the University
classified the position as an analyst I on April 5, 2005, and released it for recruitment on	classified the position as an analyst I on April 5, 2005, and released it for recruitment on
April 6, 2005. The charge was filed on November 29, 2005.	April 6, 2005. The charge was filed on November 29, 2005.
3.	3. 	Case No. SA-CE-247-H (UC Davis Refractive Surgery)	Case No. SA-CE-247-H (UC Davis Refractive Surgery)
Laser Vision Correction Services (hereafter Refractive Surgery) is a division of the UC	Laser Vision Correction Services (hereafter Refractive Surgery) is a division of the UC
Davis Medical Center Department of Ophthalmology and Vision Science. David Claunch	Davis Medical Center Department of Ophthalmology and Vision Science. David Claunch
(Claunch) was an administrative assistant II in Refractive Surgery until he resigned his position	(Claunch) was an administrative assistant II in Refractive Surgery until he resigned his position
in June 2005. Claunch's duties included scheduling laser surgery for patients, answering	in June 2005. Claunch's duties included scheduling laser surgery for patients, answering
routine questions on eligibility for surgery, processing case-payments, preparing monthly	routine questions on eligibility for surgery, processing case-payments, preparing monthly
reports for the department's billing analyst, preparing spreadsheets documenting cash flow,	reports for the department's billing analyst, preparing spreadsheets documenting cash flow,
and maintaining supplies for surgery.and maintaining supplies for surgery.
Claunch began employment as a staff research associate in the unit represented by the
University Professional and Technical Employees. His position, however, was reclassified due	University Professional and Technical Employees. His position, however, was reclassified due
to job performance issues. Following a series of transfers, Claunch was moved to the	to job performance issues. Following a series of transfers, Claunch was moved to the
Refractive Surgery Center in 2003 and assigned to a reception position. Martha Barber	Refractive Surgery Center in 2003 and assigned to a reception position. Martha Barber
(Barber), the clinical practice manager, testified that these transfers were occasioned by	(Barber), the clinical practice manager, testified that these transfers were occasioned by
Claunch's poor work performance. Although most of the positions handling receptionist and	Claunch's poor work performance. Although most of the positions handling receptionist and
intake duties in the Department of Ophthalmology are medical office service coordinators	intake duties in the Department of Ophthalmology are medical office service coordinators
(MOSCs) (there was at least one other administrative assistant position in surgery scheduling),	(MOSCs) (there was at least one other administrative assistant position in surgery scheduling),
8
Claunch began employment as a staff research associate in the unit represented by the
8

9
Barber testified that she did not	Barber testified that she did not submit Claunch's position for reclassification because it would	submit Claunch' s position for reclassification because it would
have been perceived as a	have been perceived as a demotion and would have resulted in a decrease in salary.	demotion and would have resulted in a decrease in salary.
Claunch testified that, over the course
of	Claunch testified that, over the course of time leading up to his resignation, he trained	time leading up to his resignation, he trained
Marian Vaitai (Vaitai) to perform his position. Vaitai also worked the front desk of the	Marian Vaitai (Vaitai) to perform his position. Vaitai also worked the front desk
of
the
ophthalmology clinic. Vaitai was classified as a MOSC III, a non-bargaining unit position.	ophthalmology clinic. Vaitai was classified as a MOSC III, a non-bargaining unit position.
Her primary duties included verifying insurance coverage and collecting co-payments.	Her primary duties included verifying insurance coverage and collecting co-payments.
Claunch continued to train Vaitai even after the Refractive Surgery Center moved to a new	Claunch continued to train Vaitai even after the Refractive Surgery Center moved to a new
location. Barber	location. Barber testified that despite his performing at the lower level of a MOSC, the	testified that despite his performing at the lower level
of
a MOSC, the
University maintained	University maintained Claunch in the administrative assistant II position as an accommodation	Claunch in the administrative assistant II position as an accommodation
to him.	to him.
In July 2005, shortly after Claunch left employment, Kelley asked	In July 2005, shortly after Claunch left employment, Kelley asked the medical center	the medical center
labor	labor relations consultant, Stephen Chilcott (Chilcott), if Claunch's position would be filled.	relations consultant, Stephen Chilcott (Chilcott),
if
Claunch's position would be filled.
Chilcott	Chilcott responded that the position was not eliminated and remained vacant, but that	responded that the position was not eliminated and remained vacant, but that
recruiting had not	recruiting had not commenced. Chilcott pledged to notify CUE if there were changes to the	commenced. Chilcott pledged to notify CUE
if
there were changes to the
position.	position.
Sometime thereafter, Kelley learned that Vaitai assumed Claunch's duties but remained	Sometime thereafter, Kelley learned that Vaitai assumed Claunch's duties but remained
a MOSC III. Claunch	a MOSC III. Claunch confirmed this fact in a conversation with Vaitai. Indeed, Barber also	confirmed this fact in a conversation with Vaitai. Indeed, Barber also
confirmed this fact when she	confirmed this fact when she testified that there were three front-desk personnel at the	testified that there were three front-desk personnel at the
Refractive Surgery Center both during and	Refractive Surgery Center both during and after Claunch's tenure. After Claunch's departure,	after Claunch's tenure. After Claunch's departure,
another MOSC was hired and Vaitai took the lead	another MOSC was hired and Vaitai took the lead position of the three MOSC positions	position of the three MOSC positions
working at the reception desk.	working at the reception desk.
9

4.	4. 	Case No. SF-CE-795-H (Berkeley PMB Department)	Case No. SF-CE-795-H (Berkeley PMB Department)
10
Yulia Golubovskaya (Golubovskaya) and Sonja Braden (Braden) were administrative	Yulia Golubovskaya (Golubovskaya) and Sonja Braden (Braden) were administrative
assistant IIs who managed contract proposals and provided grant administration in the Plant	assistant IIs who managed contract proposals and provided grant administration in the Plant
and Microbial Biology Department. The department has 29 professors who require	and Microbial Biology Department. The department has 29 professors who require
administrative support for the submission of grant proposals.	administrative support for the submission of grant proposals.
The department distinguishes grant support work in terms of pre-grant and post-grant	The department distinguishes grant support work in terms of pre-grant and post-grant
phases. Pre-grant work involves the development and timely submission of the proposal.	phases. Pre-grant work involves the development and timely submission of the proposal.
Under the direction of the principal investigator, the support staff assembles the proposal by	Under the direction of the principal investigator, the support staff assembles the proposal by
collecting supporting documentation and preparing the grant budget. Post-grant work involves	collecting supporting documentation and preparing the grant budget. Post-grant work involves
monitoring the expenditure of the grant monies, including assuring proper posting of expenses,	monitoring the expenditure of the grant monies, including assuring proper posting of expenses,
monthly reconciliation, and compliance with the terms and conditions of the grant award.	monthly reconciliation, and compliance with the terms and conditions of the grant award.
Post-grant financial services work was assigned at the administrative assistant II level.	Post-grant financial services work was assigned at the administrative assistant II level.
For some period of time, Jenny Sun (Sun), a non-bargaining unit analyst, was	For some period of time, Jenny Sun (Sun), a non-bargaining unit analyst, was
responsible for much of the department's pre-grant work. Because of a growth in demand for	responsible for much of the department's pre-grant work. Because of a growth in demand for
grant development work, an overuse of Sun for pre-grant work, and a need to provide	grant development work, an overuse of Sun for pre-grant work, and a need to provide
comprehensive pre- and post-grant services to principal investigators, the department'scomprehensive pre- and post-grant services to principal investigators, the department's
operations manager proposed assigning some of the pre-grant work to Golubovskaya and	operations manager proposed assigning some of the pre-grant work to Golubovskaya and
Braden along with on-the-job training.	Braden along with on-the-job training.
In 2003, Golubovskaya and Braden agreed to take on pre-grant work and were
reclassified to administrative assistant Ills. In June 2005, Golubovskaya left the department to	reclassified to administrative assistant IIIs. In June 2005, Golubovskaya left the department to
accept an administrative specialist position in a different department. Beverly Thomas	accept an administrative specialist position in a different department. Beverly Thomas
(Thomas), an administrative assistant III, who did work similar to Golubovskaya, testified that	(Thomas), an administrative assistant III, who did work similar to Golubovskaya, testified that
after Golubovskaya's departure, Golubovskaya's professors were temporarily reassigned both	after Golubovskaya's departure, Golubovskaya's professors were temporarily reassigned both
In 2003, Golubovskaya and Braden agreed to take on pre-grant work and were
10

11
to her and Braden,
as
well as Sun. Thomas's job description included entry for pre-grant work	to her and Braden, as well as Sun. Thomas's job description included entry for pre-grant work
comprising 20 percent
of
her job duties.	comprising 20 percent of her job duties.
After receiving approval by the dean's office, the department posted an advertisement	After receiving approval by the dean's office, the department posted an advertisement
for a non-bargaining unit specialist position. Kris Luppino (Luppino), a former administrativefor a non-bargaining unit specialist position. Kris Luppino (Luppino), a former administrative
assistant III, was hired for the position, but left after a brief stay. The position was reposted,	assistant III, was hired for the position, but left after a brief stay. The position was reposted,
and Braden was selected for the vacancy. According to Braden, she continued to perform all	and Braden was selected for the vacancy. According to Braden, she continued to perform all
of her previous work as an administrative assistant III, but was assigned the grant work for two	
of
her previous work as an administrative assistant III, but was assigned the grant work for two
additional professors.5 Instead ofreposting Braden's vacated administrative assistant III	additional professors." Instead of reposting Braden's vacated administrative assistant III
position, the department hired another specialist, Elma Serrano (Serrano), from the original	position, the department hired another specialist, Elma Serrano (Serrano), from the original
specialist recruitment pool to fill Braden's former position. Serrano was assigned the grant	specialist recruitment pool to fill Braden's former position. Serrano was assigned the grant
work
of
the professors previously assigned to Golubovskaya.	work of the professors previously assigned to Golubovskaya.
5.	
5. 	Case No. SF-CE-760 (International House)	Case No. SF-CE-760 (International House)
Fredda Olivares (Olivares) held a 50 percent time position as an administrative assistant	Fredda Olivares (Olivares) held a 50 percent time position as an administrative assistant
II within the physical operations unit at the International House, a dormitory facility. 	OlivaresII within the physical operations unit at the International House, a dormitory facility. Olivares
II.	was hired as an administrative assistant I before promoting to an administrative assistant II.	was hired as an administrative assistant I before promoting to an administrative assistant
Olivares handled duties at the reception desk, prepared residential rooms for occupancy,	Olivares handled duties at the reception desk, prepared residential rooms for occupancy,
conducted room inventories, handled parking, and performed other related support functions.	conducted room inventories, handled parking, and performed other related support functions.
She left her position in April 2005. The University, however, was unable to recruit a	She left her position in April 2005. The University, however, was unable to recruit a
replacement for Olivares because of a hiring freeze expected to last through the end of the	replacement for Olivares because of a hiring freeze expected to last through the end
of
the
fiscal year ending June 2005.	fiscal year ending June 2005.
After Olivares vacated her position, the International House hired Sharleshia Henderson	After Olivares vacated her position, the International House hired Sharleshia Henderson
(Henderson) in May 2005 to a 50 percent, student position, first for a one-week period.	(Henderson) in May 2005 to a 50 percent, student position, first for a one-week period.
5
Braden's specialist job description lists pre-grant work as a 25 percent duty and post-	Braden's specialist job description lists pre-grant work as a 25 percent duty and post-
grant work as a 50 percent duty. It also indicates that the incumbent is expected to be able to	grant work as a 50 percent duty. It also indicates that the incumbent is expected to be able to
handle more complex issues if presented.	handle more complex issues if presented.
11

Student positions are not a part of the CUE bargaining unit. Henderson was hired with the	Student positions are not a part of the CUE bargaining unit. Henderson was hired with the
understanding that her initial task would be to take inventory of vacated dorm rooms.	understanding that her initial task would be to take inventory of vacated dorm rooms.
Henderson performed this work for approximately one week. Thereafter, Henderson's term	Henderson performed this work for approximately one week. Thereafter, Henderson's term
was extended to August 2005. According to Henderson, she performed the duties previously	was extended to August 2005. According to Henderson, she performed the duties previously
performed by Olivares during her extended term. In support of her claim, Henderson cited	performed by Olivares during her extended term. In support of her claim, Henderson cited
e-mails documenting that she performed parking permit issuance duties and performed note-e-mails documenting that she performed parking permit issuance duties and performed note-
taking for various meetings. The University, on the other hand, presented testimony (through	taking for various meetings. The University, on the other hand, presented testimony (through
Henderson's supervisor) that several other student employees were hired on a temporary basis	Henderson's supervisor) that several other student employees were hired on a temporary basis
only to perform the end-of-year room inventory work.	only to perform the end-of-year room inventory work.
In July 2005, the University posted an opening for an administrative assistant II	In July 2005, the University posted an opening for an administrative assistant II
position. Henderson was interviewed and selected for the position. She assumed the status of	position. Henderson was interviewed and selected for the position. She assumed the status of
a CUE bargaining unit member in August 2005 as an administrative assistant II.	a CUE bargaining unit member in August 2005 as an administrative assistant II.
In none of the cases described above did the University provide notice to CUE requiredIn none of the cases described above did the University provide notice to CUE required
by Ar	by Article 2.E of the MOU.	ticle 2.E of the MOU.
D.	D. CUE's Information Requests	CUE's Information Requests
11.. 	The Levine Requests	The Levine Requests
12
On December 13, 2004, Berkeley Campus Chief Steward Elinor Levine (Levine) sent	On December 13, 2004, Berkeley Campus Chief Steward Elinor Levine (Levine) sent
an e-mail to Beverly Terlep (Terlep), the Berkeley Office of Human Resources Laboran e-mail to Beverly Terlep (Terlep), the Berkeley Office of Human Resources Labor
Relations analyst, requesting lists of all campus administrative specialist and assistant	Relations analyst, requesting lists of all campus administrative specialist and assistant
administrative analyst positions posted for recruitment in the years 2003 and 2004, as well as	administrative analyst positions posted for recruitment in the years 2003 and 2004, as well as
the "classification history" for each of the positions, including before and after job descriptions	the "classification history" for each of the positions, including before and after job descriptions
if the positions were reclassified while vacant.	if the positions were reclassified while vacant.
Upon receipt of the request, Terlep consulted with labor relations staff who concluded	Upon receipt of the request, Terlep consulted with labor relations staff who concluded
the only way to gather the information was through a search of the institutional memory of the	the only way to gather the information was through a search of the institutional memory of the
12

various departments at each campus. By letter dated December 16, 2004, Terlep informed	various departments at each campus. By letter dated December 16, 2004, Terlep informed
CUE that the University would not provide the information. She asserted that a position once	CUE that the University would not provide the information. She asserted that a position once
a	vacated "ceases to exist." Further, Terlep indicated that because the University retains a	vacated "ceases to exist." Further, Terlep indicated that because the University retains
managerial prerogative regarding "how to fund positions and how to use them," CUE did not
managerial prerogative regarding "how to fund positions and how to use them," CUE did not
have a right to request information pertaining to recruitment
of
specialist and analyst positions.	have a right to request information pertaining to recruitment of specialist and analyst positions.
Terlep also stated that CUE itself could obtain the job vacancy listings and job descriptions for	Terlep also stated that CUE itself could obtain the job vacancy listings and job descriptions for
such open positions on the campus human resources website.	such open positions on the campus human resources website.
e to this denial, Levine submitted a second request for information in which	In response to this denial, Levine submitted a second request for information in which	In respons
she indicated CUE had a concern about clerical work being reclassified out
of
the bargaining	she indicated CUE had a concern about clerical work being reclassified out of the bargaining
unit, and clerical positions being lost. Consequently, Levine requested a copy
of
the
jobunit, and clerical positions being lost. Consequently, Levine requested a copy of the job
vacancy listings for all administrative specialist and assistant administrative analyst positions	vacancy listings for all administrative specialist and assistant administrative analyst positions
for 2003 and 2004. In addition, Levine requested the classification history for such positions,	for 2003 and 2004. In addition, Levine requested the classification history for such positions,
including the job descriptions before and after the reclassification
if
the position wasincluding the job descriptions before and after the reclassification if the position was
reclassified while vacant.	reclassified while vacant.
The University denied the request asserting that CUE only had a right to information	The University denied the request asserting that CUE only had a right to information
regarding the clerical unit. The University also reiterated that positions cease to exist when	regarding the clerical unit. The University also reiterated that positions cease to exist when
they are vacated and that the University possessed the managerial prerogative to determine	they are vacated and that the University possessed the managerial prerogative to determine
how to both fund positions and use them. Therefore, according to the University, the decision	how to both fund positions and use them. Therefore, according to the University, the decision
an Administrative	to list a position as an Administrative Specialist or Assistant Administrative Analyst does not	to list a position as 	Specialist or Assistant Administrative Analyst does not
fall within CUE's purview.	fall within CUE's purview.
2.	2. 	Wilkinson's Request	Wilkinson's Request
13
the	In May 2005, Wilkinson submitted the following information request to aid in	In May 2005, Wilkinson submitted 	following information request to aid in
bargaining:	bargaining:
since	[F]or each instance since March 12, 2002 in which a position was	[F]or each instance 	March 12, 2002 in which a position was
in the bargaining unit but became vacant and was reclassified out	in the bargaining unit but became vacant and was reclassified out
13

of the clerical bargaining unit when it was opened for recruitment	of the clerical bargaining unit when it was opened for recruitment
( or the position ceased to exist and was instead replaced in large	(or the position ceased to exist and was instead replaced in large
part by a new position out of the clerical unit), please provide the	part by a new position out of the clerical unit), please provide the
title of the position when it was in the clerical bargaining unit, the	title of the position when it was in the clerical bargaining unit, the
title once the position was removed from the clerical bargaining	title once the position was removed from the clerical bargaining
unit (or replaced in large part by a new position out of the clerical	unit (or replaced in large part by a new position out of the clerical
unit), and job descriptions for both positions.	unit), and job descriptions for both positions.
Peter Chester (Chester), the University's chief negotiator for the clerical bargaining	Peter Chester (Chester), the University's chief negotiator for the clerical bargaining
unit, responded to Wilkinson's request. Chester asserted that the University does not maintain	unit, responded to Wilkinson's request. Chester asserted that the University does not maintain
system	system wide position control (i.e., a system of recording and tracking filled and vacant	wide position control (i.e., a system of recording and tracking filled and vacant
positions).6 Consequently, because there was no way to track it, the University would bepositions)."onsequently, because there was no way to track it, the University would be
unable to provide the information. 7
unable to provide the information. ' To further support the denial of the request, the University	To further support the denial of the request, the University
claimed it possessed the managerial prerogative to fill a vacancy with the equivalent position,	claimed it possessed the managerial prerogative to fill a vacancy with the equivalent position,
leave the position vacant, or fill the position with a different classification. In addition, the	leave the position vacant, or fill the position with a different classification. In addition, the
University contested the relevance of the information because Article 2.E did not refer to	University contested the relevance of the information because Article 2.E did not refer to
vacant position and only applied to situations in which a formal reclassification occurred.	vacant position and only applied to situations in which a formal reclassification occurred.
Wilkinson replied to Chester by letter dated July 15, 2005. In her letter, Wilkinson	Wilkinson replied to Chester by letter dated July 15, 2005. In her letter, Wilkinson
suggested that, although there was no centralized position control system, the University could	suggested that, although there was no centralized position control system, the University could
gather the information through inquiry. In addition, she noted that the FTP site would containgather the information through inquiry. In addition, she noted that the FTP site would contain
There is currently no system wide database maintained that tracks this information.	There is currently no system wide database maintained that tracks this information.
The payroll database systems in use track the history of employees in terms of their start and	The payroll database systems in use track the history of employees in terms of their start and
end dates, but not in terms of their positions. Human resource database capabilities vary from	end dates, but not in terms of their positions. Human resource database capabilities vary from
campus to campus. Higher level, "integrated" databases, which may have position-tracking	campus to campus. Higher level, "integrated" databases, which may have position-tracking
capability, are just now coming into use at two of the medical centers.	capability, are just now coming into use at two of the medical centers.
14
7
"CUE's bargaining unit ranges from 12,000 to 15,000 employees. According to	CUE's bargaining unit ranges from 12,000 to 15,000 employees. According to
Chester, developing a history of vacant bargaining unit positions on a system wide basis would	Chester, developing a history of vacant bargaining unit positions on a system wide basis would
require coordination through the Office of the President, using the 17 campus, medical center,	require coordination through the Office of the President, using the 17 campus, medical center,
and laboratory labor relations managers as contact points for gathering position information	and laboratory labor relations managers as contact points for gathering position information
from each of the campus departments.	from each of the campus departments.
14

information with respect to vacant positions."	information with respect to vacant positions. 8 The	he University did not provide the requested	University did not provide the requested
information.	information.
REQUEST FOR ORAL ARGUMENT	REQUEST FOR ORAL ARGUMENT
Pursuant to PERB Regulation 32315", the University filed a request for oral argument.	Pursuant to PERB Regulation 323159, the University filed a request for oral argument.
Historically, the Board has denied requests for oral argument when an adequate record has	Historically, the Board has denied requests for oral argument when an adequate record has
been prepared, the parties had ample opportunity to present briefs and have availed themselves	been prepared, the parties had ample opportunity to present briefs and have availed themselves
of that opportunity, and the issues before the Board are sufficiently clear to make oral	of that opportunity, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision	argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.) Based on our	No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.) Based on our
review of the record, all of the above criteria are met in this case. Accordingly, the	review of the record, all of the above criteria are met in this case. Accordingly, the
University's request for oral argument is denied.	University's request for oral argument is denied.
DISCUSSION	DISCUSSION
A.	A. 	Timeliness	Timeliness
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to	HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the	"any charge based upon an alleged unfair practice occurring more than six months prior to the
"The University maintains a "depot" for database files known as the File Transfer	The University maintains a "depot" for database files known as the File Transfer
.l_
Drn.+n.<>n.l	Vl,,VVVJ. ffTD\	\ 	.1. / ";+,,.	O.lt..\.l, nrher"'	VVJ. 	ruJ::; YY\au aCC"'S" Cl	U ~ f'llrrPnt	Vl,.,l.l..l.\,,,'.1..1.\, 1,d	Protocol (FTP) site, where CUE may access a current list of bargaining unit members,	\,,, '--' 	.L.I .ll..L J 	V 	.1.,J\, A-fh<>rg<>1'n1'ng	V..L V'--4-.L \A. .1. .1. nn,t	'-4..L.J...l.\, .1...1..&.""'.1..	
mPmber~u,
individual payroll information and personnel transaction records, including dates of entry into	individual payroll information and personnel transaction records, including dates of entry into
the	the unit, exit from the unit, and separation from University employment. While transfers out	unit, exit from the unit, and separation from University employment. While transfers out
of the unit are noted, no continuing record of the status of the vacated bargaining unit position	of the unit are noted, no continuing record of the status of the vacated bargaining unit position
is provided.	is provided.
15
9
PERB regulations are codified at California Code of Regulations, title 8,	PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB Regulation 32315 provides in full:	section 31001 et seq. PERB Regulation 32315 provides in full:
A party desiring to argue orally before the Board itself regarding	A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the	the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of	statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.	exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct	Upon such request or its own motion the Board itself may direct
oral argument.	oral argument.
15

filing of the charge." In unilateral change cases, the limitations period begins to run on thefiling of the charge." In unilateral change cases, the limitations period begins to run on the
date the charging party obtains actual or constructive notice of the respondent's clear intent to	date the charging party obtains actual or constructive notice of the respondent's clear intent to
implement a unilateral change in policy, provided that nothing subsequently evinces a	implement a unilateral change in policy, provided that nothing subsequently evinces a
wavering of that intent. (Regents of the University of California (1990) PERB Decision	wavering of that intent. (Regents of the University of California (1990) PERB Decision
No. 826-H (Regents).) Thus, a charging party that rests on its rights until actual	No. 826-H (Regents).) Thus, a charging party that rests on its rights until actual
implementation of the change bears the risk of running afoul of the statute of limitations.	implementation of the change bears the risk of running afoul of the statute of limitations.
(South Placer Fire Protection District (2008) PERB Decision No. 1944-M.)	(South Placer Fire Protection District (2008) PERB Decision No. 1944-M.)
11.. 	Case No. SA-CE-251-H (Tina Perez)	Case No. SA-CE-251-H (Tina Perez)
Case No. SA-CE-251-H involves a case in which the IET Department allegedly posted	Case No. SA-CE-251-H involves a case in which the IET Department allegedly posted
a job announcement for an analyst position instead of filling a vacant(_) assistant III position.	a job announcement for an analyst position instead of filling a vacant ( ) assistant III position.
On December 2, 2005, the University posted a job vacancy announcement for the non-	On December 2, 2005, the University posted a job vacancy announcement for the non-
bargaining unit analyst position. The charge was filed on July 14, 2006. Therefore, CUE must	bargaining unit analyst position. The charge was filed on July 14, 2006. Therefore, CUE must
establish it knew or should have known of the alleged reclassification no earlier than	establish it knew or should have known of the alleged reclassification no earlier than
January 14, 2006.	January 14, 2006.
16
Perez worked for the department as an analyst II (non-bargaining unit position) but was	Perez worked for the department as an analyst II (non-bargaining unit position) but was
downgraded to a (_) assistant III (bargaining unit position) for performance reasons.	downgraded to a ( ) assistant III (bargaining unit position) for performance reasons.
Following Perez' departure, the University posted an announcement for an analyst II vacancy.	Following Perez' departure, the University posted an announcement for an analyst II vacancy.
At some point in December, Kelley submitted a request for information as follows:	At some point in December, Kelley submitted a request for information as follows:
Please provide a copy of the previous job description and a copy	Please provide a copy of the previous job description and a copy
of the job description that was reviewed by Compensation and	of the job description that was reviewed by Compensation and
Classification that resulted in the decision to remove the position,	Classification that resulted in the decision to remove the position,
previously held by Tina L. Perez, from the CUE bargaining unit,	previously held by Tina L. Perez, from the CUE bargaining unit,
and make it a non-represented position.	and make it a non-represented position.
The University mailed its response to her request on December 20, 2005. The response	The University mailed its response to her request on December 20, 2005. The response
included a job description of the open analyst position, Perez's former analyst job description,	included a job description of the open analyst position, Perez's former analyst job description,
and her most recent (_) assistant III job description.	and her most recent ( ) assistant III job description.
16

response	Based on the foregoing, we find that the University's response provided CUE with	Based on the foregoing, we find that the University's 	provided CUE with
sufficient information to conclude the University may have violated Article 2.E. Since the	sufficient information to conclude the University may have violated Article 2.E. Since the
University's response was sent three weeks prior to January 14, 2006, we find Case	University's response was sent three weeks prior to January 14, 2006, we find Case
No. SA-CE-251-H (Tina Perez) was not timely filed.	No. SA-CE-251-H (Tina Perez) was not timely filed.
2.	
2. 	Case No. SA-CE-246-H (Kimberly Pearson)	Case No. SA-CE-246-H (Kimberly Pearson)
Case No. SA-CE-246-H involves the financial services position in Mediaworks at the	Case No. SA-CE-246-H involves the financial services position in Mediaworks at the
announcement for a	Davis campus. On April 6, 2005, the University posted a job vacancy announcement for a	Davis campus. On April 6, 2005, the University posted a job vacancy
non-bargaining unit analyst position. The charge was filed on November 29, 2005. Therefore,non-bargaining unit analyst position. The charge was filed on November 29, 2005. Therefore,
CUE must establish it knew or should have known
of
the alleged reclassification no earlier	CUE must establish it knew or should have known of the alleged reclassification no earlier
than May 29, 2005.	than May 29, 2005.
17
read	Mitchell testified that when she read the job vacancy announcement she immediately	Mitchell testified that when she 	the job vacancy announcement she immediately
knew it was the same job performed by Pearson as a
(_)
assistant III, a bargaining unitknew it was the same job performed by Pearson as a ( ) assistant III, a bargaining unit
position. Thereafter, Mitchell, along with her co-worker, Moon, told CUE representative	
position. Thereafter, Mitchell, along with her co-worker, Moon, told CUE representative
Kelley that they believed the advertised position was Pearson's position. However, there is noKelley that they believed the advertised position was Pearson's position. However, there is no
evidence in the record regarding when Mitchell shared this information with Kelley, nor is	evidence in the record regarding when Mitchell shared this information with Kelley, nor is
there any evidence regarding when Kelley became aware
of
the vacancy.there any evidence regarding when Kelley became aware of the vacancy.
After she was informed
of
the University's alleged replacement
of
Pearson's(_)After she was informed of the University's alleged replacement of Pearson's ()
assistant III position, Kelley submitted a request for the job description for the periodassistant III position, Kelley submitted a request for the job description for the period
following the reclassification
of
the position previously held by Kimberley Pearson. Onfollowing the reclassification of the position previously held by Kimberley Pearson. On
October 11, 2005, the University responded to the request and stated the analyst position was	October 11, 2005, the University responded to the request and stated the analyst position was
submitted for a classification determination on March 20, 2005. The response further stated	submitted for a classification determination on March 20, 2005. The response further stated
the University classified the position as an analyst I on April 5, 2005, and released it for	
the University classified the position as an analyst I on April 5, 2005, and released it for
recruitment on April 6, 2005. The charge was filed on November 29, 2005.	recruitment on April 6, 2005. The charge was filed on November 29, 2005.
17

The University asserts that the notice to Mitchell and Moon was imputed to the union	The University asserts that the notice to Mitchell and Moon was imputed to the union
because she and the coworker were CUE members. However, notice of a proposed change	because she and the coworker were CUE members. However, notice of a proposed change
must be given to an official of the union who has the authority to act on behalf of the	must be given to an official of the union who has the authority to act on behalf of the
organization. (State of California (Department of Corrections) (2000) PERB Decision	organization. (State of California (Department of Corrections) (2000) PERB Decision
No. 1392-S, adopting ALJ's decision, at pp. 18-22.) The knowledge of one or even several	No. 1392-S, adopting ALJ's decision, at pp. 18-22.) The knowledge of one or even several
members of the bargaining unit, who lack authority to act in an official capacity, will not be	members of the bargaining unit, who lack authority to act in an official capacity, will not be
imputed to the organization. (Victor Valley Union High School District (1986) PERB Decision	imputed to the organization. (Victor Valley Union High School District (1986) PERB Decision
No. 565, at pp. 5-6.) Thus, we will not impute notice to CUE through Mitchell or her	No. 565, at pp. 5-6.) Thus, we will not impute notice to CUE through Mitchell or her
coworker, despite their belief in the movement of unit work.	coworker, despite their belief in the movement of unit work.
As in Case No. SA-CE-251-H (Tina Perez), we find the University's October 11, 2005,	As in Case No. SA-CE-251-H (Tina Perez), we find the University's October 11, 2005,
response provided CUE with sufficient information to conclude the University may have	response provided CUE with sufficient information to conclude the University may have
violated Article 2.E. Since CUE filed the charge on November 29, 2005, less than seven	violated Article 2.E. Since CUE filed the charge on November 29, 2005, less than seven
weeks after the University's response, we find Case No. SA-CE-246-H (Kimberly Pearson)	weeks after the University's response, we find Case No. SA-CE-246-H (Kimberly Pearson)
was timely filed.	was timely filed.
B.	B. The University's Notice Obligations	The University's Notice Obligations
The heart of this case is a dispute regarding the parties' interpretation of Article 2 .E	The heart of this case is a dispute regarding the parties' interpretation of Article 2.E
(Reclassification From Unit To Non-Unit Positions) of the 2003-04 MOU. The relevant	(Reclassification From Unit To Non-Unit Positions) of the 2003-04 MOU. The relevant
portion of Article 2.E is as follows:	portion of Article 2.E is as follows:
In the event the University determines that a position or title	In the event the University determines that a position or title
should be reclassified or designated for exclusion from the unit,	should be reclassified or designated for exclusion from the unit,
or the University intends to replace a major portion of a	or the University intends to replace a major portion of a
bargaining unit position with a position in a classification outside	bargaining unit position with a position in a classification outside
of the unit, the University shall notify CUE in writing at least	of the unit, the University shall notify CUE in writing at least
thirty (30) calendar days prior to the proposed implementation.	thirty (30) calendar days prior to the proposed implementation.
Although PERB does not have jurisdiction to resolve pure contract disputes pursuant to	Although PERB does not have jurisdiction to resolve pure contract disputes pursuant to
HEERA section 3563.2(b), it may interpret contract language if doing so is necessary in	HEERA section 3 563 .2(b ), it may interpret contract language if doing so is necessary in
deciding an unfair practice charge case. (County of Ventura (2007) PERB Decision	deciding an unfair practice charge case. (County of Ventura (2007) PERB Decision
18	18

No. 1910-M.) In such cases, traditional rules of contract law guide the Board's interpretation	No. 1910-M.) In such cases, traditional rules
of
contract law guide the Board's interpretation
of
collective bargaining agreements. (National City Police Offcers' Assn.
v.
City
of
Nationalof collective bargaining agreements. (National City Police Offcers' Assn. v. City of National
City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB	City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB
Decision No. 313.)	Decision No. 313.)
19
effect	A contract must be so interpreted as to give effect to the mutual intention of the parties	A contract must be so interpreted as to give 	to the mutual intention
of
the parties
as it existed at the time
of
contracting, so far as the same is ascertainable and lawful. (Civ.	as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ.
Code,	Code, $ 1636.) Where contractual language is clear and unambiguous, it is unnecessary to go	§ 1636.) Where contractual language is clear and unambiguous, it is unnecessary to go
beyond the plain language
of
the contract itself to ascertain its meaning. (Ibid.; City
of	beyond the plain language of the contract itself to ascertain its meaning. (Ibid.; City of
Riverside (2009) PERB Decision No. 2027-M; Marysville Joint Unified School District (1983)	Riverside (2009) PERB Decision No. 2027-M; Marysville Joint Unified School District (1983)
give effect	PERB Decision No. 314.) "The whole of a contract is to be taken together, so as to give effect	PERB Decision No. 314.) "The whole
of
a contract is to be taken together, so as to
to every part, ifreasonably practicable, each clause helping to interpret the other." (Civ. Code,to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code,
§ 1641.) Thus, "the Board must avoid an interpretation
of
contract language which leaves a$ 1641.) Thus, "the Board must avoid an interpretation of contract language which leaves a
provision without effect." (State
of
California (Department
of
Corrections) (1999) PERBprovision without effect." (State of California (Department of Corrections) (1999) PERB
Decision No. 1317-S.)	Decision No. 1317-S.)
The parties offer contrary interpretations
of
Article 2.E. According to CUE, this	The parties offer contrary interpretations of Article 2.E. According to CUE, this
provision requires the University to give CUE notice and an opportunity to meet and conferprovision requires the University to give CUE notice and an opportunity to meet and confer
when the University determines: (1) "that a position or title should be reclassified;" (2) a	when the University determines: (1) "that a position or title should be reclassified;" (2) a
position or title should be "designated for exclusion from the unit;" or (3) when the University	position or title should be "designated for exclusion from the unit;" or (3) when the University
"intends to replace a major portion
of
a bargaining unit position with a position in a	"intends to replace a major portion of a bargaining unit position with a position in a
classification outside of the unit." With regard to the third factor, CUE contends that the	classification outside of the unit." With regard to the third factor, CUE contends that the
University must provide notice if it intends to replace 50 percent or more
of
the work
of
aUniversity must provide notice if it intends to replace 50 percent or more of the work of a
bargaining unit position with a non-unit position.	bargaining unit position with a non-unit position.
The University, on the other hand, contends that notice is only required when there is a	The University, on the other hand, contends that notice is only required when there is a
formal request for reclassification that would result in an incumbent leaving the bargaining unit	formal request for reclassification that would result in an incumbent leaving the bargaining unit
19

by virtue of the reclassification. According to Chester, the University's chief negotiator for the	by virtue of the reclassification. According to Chester, the University's chief negotiator for the
clerical bargaining unit, notice is only required for cases in which the University designates a	clerical bargaining unit, notice is only required for cases in which the University designates a
group of existing and filled positions (i.e., a significant body of work) for movement outside of	group of existing and filled positions (i.e., a significant body of work) for movement outside of
the unit. Chester, however, did not provide a basis for that understanding (i.e., whether it arose	the unit. Chester, however, did not provide a basis for that understanding (i.e., whether it arose
from the language of the agreement or by virtue of HEERA). In addition, Chester asserted that	from the language of the agreement or by virtue of HEERA). In addition, Chester asserted that
because the MOU does not explicitly define bargaining unit work, a classification analyst's	because the MOU does not explicitly define bargaining unit work, a classification analyst's
conclusion of unit placement, based on a job description presented for a new position,	conclusion of unit placement, based on a job description presented for a new position,
effectively determines whether the position will be in or out of the unit.	effectively determines whether the position will be in or out of the unit.
1.	1. 	Interpretation of Article 2.E	Interpretation of Article 2.E
Based on our review, we find Article 2.E is not limited to formal requests for	Based on our review, we find Article 2.E is not limited to formal requests for
reclassification. Although such an interpretation might have found support under the prior	reclassification. Although such an interpretation might have found support under the prior
language of Article 2.E, we find the addition of the "major portion of the bargaining unit"	language of Article 2.E, we find the addition of the "major portion of the bargaining unit"
requirement to the 2003-04 MOU significantly expanded the notice obligations imposed by	requirement to the 2003-04 MOU significantly expanded the notice obligations imposed by
this provision. To rule otherwise would leave this addition to Article 2.E without effect and,	this provision. To rule otherwise would leave this addition to Article 2.E without effect and,
consequently, reduce this additional phrase to mere surplusage.	consequently, reduce this additional phrase to mere surplusage.
We, therefore, find the plain and unambiguous language of this article clearly requires	We, therefore, find the plain and unambiguous language of this article clearly requires
the University to give CUE notice and an opportunity to meet and confer when the University	the University to give CUE notice and an opportunity to meet and confer when the University
determines: (1) that a bargaining unit position or title should be reclassified to a non-	determines: (1) that a bargaining unit position or title should be reclassified to a non-
bargaining unit position; (2) a bargaining unit position or title should be designated for	bargaining unit position; (2) a bargaining unit position or title should be designated for
exclusion from the unit; or (3) the University intends to replace a major portion of a bargaining	exclusion from the unit; or (3) the University intends to replace a major portion of a bargaining
unit position with a position in	unit position with a position in a classification outside of the unit.	a classification outside of the unit.
With regard to the third factor, the duty to provide notice and an opportunity to meet	With regard to the third factor, the duty to provide notice and an opportunity to meet
and confer is triggered when the University intends to replace more than 50 percent of the	and confer is triggered when the University intends to replace more than 50 percent of the
work of a bargaining unit position with that of a non-bargaining unit position. It is noteworthy	work of a bargaining unit position with that of a non-bargaining unit position. It is noteworthy
20	20

that this requirement specifically uses the phrase "the	that this requirement specifically uses the phrase "the University intends to replace." We	University intends to replace." We
believe the inclusion of this phrase adds a requirement to the third factor that the University	believe the inclusion
of
this phrase adds a requirement to the third factor that the University
manifests an intent to impose such a replacement. We find this latter requirement is significant	manifests an intent to impose such a replacement. We find this latter requirement is significant
because it	
de	because it creates a de facto exception for temporary assignments. For example, when a non-	creates a 	facto exception for temporary assignments. For example, when a non-
bargaining unit employee fills in for a bargaining unit	bargaining unit employee fills in for a bargaining unit employee to cover for vacation or sick	employee to cover for vacation or sick
leave,	leave, Article 2.E would not be triggered because the University would not have the requisite	Article 2.E would not be triggered because the University would not have the requisite
intent to replace a	intent to replace a major portion of the bargaining unit position. Instead, the position would	major portion
of
the bargaining unit position. Instead, the position would
continue to exist during	continue to exist during the pendency of the leave and the duties would be resumed by the	the pendency
of
the leave and the duties would be resumed by the
employee upon his/her return to duty.	employee upon his/her return to duty.
2
2.. 	Bargaining History is Unavailing	Bargaining History is Unavailing
21
As indicated	As indicated above, when contractual language is clear and unambiguous, it is	above, when contractual language is clear and unambiguous, it is
unnecessary to go beyond the plain language of the contract itself to ascertain its meaning.	unnecessary to go beyond the plain language
of
the contract itself to ascertain its meaning.
(City
of
Riverside (2009) PERB Decision No.	(City of Riverside (2009) PERB Decision No. 2027-M.) In the instant case, we find the	2027-M.) In the instant case, we find the
language of Article 2.E is clear and unambiguous. Accordingly, we need not consider the	language
of
Article 2.E is clear and unambiguous. Accordingly, we need not consider the
provision's bargaining history.provision's bargaining history.
However,	However, even if the language was not clear, the bargaining history sheds little light on	even
if
the language was not clear, the bargaining history sheds little light on
the meaning of Article 2.E. It is undisputed that CUE proposed the additional language to	the meaning
of
Article 2.E. It is undisputed that CUE proposed the additional language to
Article 2.E. According to Wilkinson, she told the University's chief negotiator,	Article 2.E. According to Wilkinson, she told the University's chief negotiator,
Sharon Hayden, that the additional language was written "fairly broadly" to address the wide	Sharon Hayden, that the additional language was written "fairly broadly" to address the wide
variety of ways in which	variety of ways in which bargaining unit work could be reassigned out of the unit. She did not,	bargaining unit work could be reassigned out of the unit. She did not,
however, explain to the University what she	however, explain to the University what she meant by "fairly broadly" nor did she explain any	meant by "fairly broadly" nor did she explain any
situations that might apply to the new language that did not apply to the	situations that might apply to the new language that did not apply to the existing language.	existing language.
Given	Given the ambiguities of Wilkinson's testimony and the fact that there were seemingly no	the ambiguities of Wilkinson's testimony and the fact that there were seemingly no
21

regarding	bilateral discussions regarding this provision, we find the bargaining history to be of little	bilateral discussions 	this provision, we find the bargaining history to be
of
little
probative value in the interpretation
of
Article 2.E.	probative value in the interpretation of Article 2.E.
3.	
3. 	Prior Arbitration Decision	Prior Arbitration Decision
issued	In December of 2005, Winograd issued an arbitration decision in which he interpreted	In December
of
2005, Winograd 	an arbitration decision in which he interpreted
Article 2.E. The primary issue in the Winograd arbitration was whether the University	Article 2.E. The primary issue in the Winograd arbitration was whether the University
violated Article 2.E when it created new non-bargaining unit positions and filled the positions	violated Article 2.E when it created new non-bargaining unit positions and filled the positions
with bargaining unit members who continued to perform the same work they previously	with bargaining unit members who continued to perform the same work they previously
performed in their prior bargaining unit position.	performed in their prior bargaining unit position.
Winograd	In his decision, Winograd concluded that when the University posted non-unit positions	In his decision, 	concluded that when the University posted non-unit positions
and hired unit incumbents into positions, the University violated Article 2.E when the duties	and hired unit incumbents into positions, the University violated Article 2.E when the duties
for the new positions either did not change or remained largely the same. According tofor the new positions either did not change or remained largely the same. According to
Winograd,	Winograd,
As stated in Article 2.E of the contract, the Union's entitlement to	As stated in Article 2.E
of
the contract, the Union's entitlement to
notice and an opportunity to discuss the matter arises when 'the	notice and an opportunity to discuss the matter arises when 'the
University	University determines that a position or title should be	determines that a position or title should be
reclassified or designated for exclusion from the unit or the	reclassified or designated for exclusion from the unit or the
University intends to replace a major portion of a bargaining unit	University intends to replace a major portion
of
a bargaining unit
position with a position in a classification outside the unit.'	position with a position in a classification outside the unit.'
22
Although the manner in which the University replaced major portions
of
bargaining	Although the manner in which the University replaced major portions of bargaining
unit positions in the instant case differed from the cases under consideration in the
\X/inogradunit positions in the instant case differed from the cases under consideration in the Winograd
decision, the arbitration decision is still probative as to the interpretation of Article 2.E.	decision, the arbitration decision is still probative as to the interpretation
of
Article 2.E.
clearly rejected the	Relevant to this discussion is the fact that the Winograd interpretation clearly rejected the	Relevant to this discussion is the fact that the Winograd interpretation
notion that Article 2.E only applies to formal reclassifications and adopted a standard similar	notion that Article 2.E only applies to formal reclassifications and adopted a standard similar
to the standard expressed herein. 10
to the standard expressed herein."
the	In In 	to	its response to the University's exceptions, CUE notes that the Winograd decision	its response 	University's exceptions, CUE notes that the Winograd decision
"did not consider or even inquire whether the assignments were temporary . . . or about the	"did not consider or even inquire whether the assignments were temporary
...
or about the
individual circumstances behind each assignment." Based on our review, such factors were	individual circumstances behind each assignment." Based on our review, such factors were
22

C.	C. Unilateral Change Allegations	Unilateral Change Allegations
According to CUE, the University's interpretation
of
Article 2.E is too narrow and isAccording to CUE, the University's interpretation of Article 2.E is too narrow and is
not supported by the plain language
of
the provision, the bargaining history or the arbitralnot supported by the plain language of the provision, the bargaining history or the arbitral
authority. CUE, therefore, argues that the University committed an unlawful unilateral chan	authority. CUE, therefore, argues that the University committed an unlawful unilateral chang
in the parties' Article 2.E policy when, based on its narrow interpretation
of
Article 2.E, the	in the parties' Article 2.E policy when, based on its narrow interpretation of Article 2.E, the
University replaced major portions
of
work performed by bargaining unit positions with non-	University replaced major portions of work performed by bargaining unit positions with non-
bargai	bargaining unit positions without providing CUE adequate notice.
e
ning unit positions without providing CUE adequate notice.
23
ge
In determining whether a party has violated HEERA section 3571(c), PERB utilizes	In determining whether a party has violated HEERA section 3571(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved	either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District	and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No.
143
(Stockton).) Unilateral changes are considered "per se"	(1980) PERB Decision No. 143 (Stockton).) Unilateral changes are considered "per se"
breached or altered	violations if certain criteria are met. Those criteria are: (1) the employer breached or altered	violations
if
certain criteria are met. Those criteria are: (1) the employer
the parties' written agreement or past practice; (2) such action was taken without giving the	the parties' written agreement or past practice; (2) such action was taken without giving the
exclusive representative notice or an opportunity to bargain over the change; (3) the change	exclusive representative notice or an opportunity to bargain over the change; (3) the change
was not merely an isolated breach
of
the contract, but amounts to a change
of
policy (i.e., has a	was not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a
generalized effect or continuing impact upon the terms and conditions
of
employment
ofgeneralized effect or continuing impact upon the terms and conditions of employment of
bargaining unit members); and ( 4) the change in policy concerns a matter within the scope
ofbargaining unit members); and (4) the change in policy concerns a matter within the scope of
representation. (Trustees
of
the California State University (2005) PERB Decisionrepresentation. (Trustees of the California State University (2005) PERB Decision
No. 1760-H.)	No. 1760-H.)
not at issue in the Winograd arbitration. Accordingly, the fact that Winograd failed to consider
not at issue in the Winograd arbitration. Accordingly, the fact that Winograd failed to consider
such factors is of limited probative value in our interpretation of Article 2.E.	such factors is of limited probative value in our interpretation of Article 2.E.
23

11. . 	Case No. SA-CE-247-H (UC Davis Refractive Surgery)	Case No. SA-CE-247-H (UC Davis Refractive Surgery)
The charge in case number SA-CE-247-H alleged the University replaced a major	The charge in case number SA-CE-247-H alleged the University replaced a major
portion of an administrative assistant II position (a bargaining unit position), with an MOSC III	portion of an administrative assistant II position (a bargaining unit position), with an MOSC III
position (a non-bargaining unit position).	position (a non-bargaining unit position).
The administrative assistant II position was formerly held by Claunch. Claunch	The administrative assistant II position was formerly held by Claunch. Claunch
resigned his position in June 2005. Prior to his resignation, Claunch trained Vaitai to perform	resigned his position in June 2005. Prior to his resignation, Claunch trained Vaitai to perform
his position. Vaitai, who worked the front desk of the Ophthalmology Clinic, was classified as	his position. Vaitai, who worked the front desk of the Ophthalmology Clinic, was classified as
a MOSC III. Three people worked at the front desk of the clinic, Claunch, Vaitai and	a MOSC III. Three people worked at the front desk of the clinic, Claunch, Vaitai and
Anna Mccarr (Mccarr). McCarr was an MOSC II (a non-bargaining unit position).	Anna McCarr (McCarr). McCarr was an MOSC II (a non-bargaining unit position).
In July 2005, shortly after Claunch left employment, CUE Business Agent Kelley asked	In July 2005, shortly after Claunch left employment, CUE Business Agent Kelley asked
the medical center labor relations consultant, Chilcott, if Claunch' s position would be filled.	the medical center labor relations consultant, Chilcott, if Claunch's position would be filled.
Chilcott responded that the position was not eliminated and remained vacant, but that	Chilcott responded that the position was not eliminated and remained vacant, but that
recruiting had not commenced. Chilcott informed Kelley that CUE would be notified if there	recruiting had not commenced. Chilcott informed Kelley that CUE would be notified if there
were changes to the position. However, shortly thereafter, Kelley discovered that Claunch's	were changes to the position. However, shortly thereafter, Kelley discovered that Claunch's
work was reassigned to Vaitai and that the University recruited another MOSC II to work the	work was reassigned to Vaitai and that the University recruited another MOSC II to work the
front	front desk. Vaitai took the lead position of the three employees working the front desk.	desk. Vaitai took the lead position of the three employees working the front desk.
a.a. 	The University Breached Article 2.E	The University Breached Article 2.E
We find that virtually all of the duties performed by Chaunch were transferred to Vaitai	We find that virtually all of the duties performed by Chaunch were transferred to Vaitai
or the other two MOSCs working at the front desk. " We further find that the University was	or the other two MOSCs working at the front desk. 11 We further find that the University was
aware of the vacancy created by Claunch's resignation and intentionally choose to transfer his	aware of the vacancy created by Claunch's resignation and intentionally choose to transfer his
"The University claims the "overlapping duties doctrine" compels a finding that there	The University claims the "overlapping duties doctrine" compels a finding that there
was no unilateral transfer of work. 	Specifically, the University argues that in order to prevail	was no unilateral transfer of work. Specifically, the University argues that in order to prevail
on a transfer of work theory, CUE must prove that the employees ceased to perform work	on a transfer of work theory, CUE must prove that the employees ceased to perform work
which they previously performed or that non-unit employees began to perform duties	which they previously performed or that non-unit employees began to perform duties
previously performed exclusively by unit employees. CUE's case, however, is not based on a	previously performed exclusively by unit employees. CUE's case, however, is not based on a
traditional transfer of work theory. Rather, it is based on the University's unilateral change of	traditional transfer of work theory. Rather, it is based on the University's unilateral change of
Article 2.E. Accordingly, this argument has no merit.	Article 2.E. Accordingly, this argument has no merit.
24	24

work to a position outside the CUE bargaining unit (i.e., an MOSC position). Last, we find the	work to a position outside the CUE bargaining unit (i.e., an MOSC position). Last, we find the
Article 2.E.	University failed to notice CUE of this replacement of work as required by Article 2.E.	University failed to notice CUE
of
this replacement
of
work as required by
Therefore, the first element
of
the prima facie case for an unlawful unilateral change has been	Therefore, the first element of the prima facie case for an unlawful unilateral change has been
met. In addition, we find the University did not notify CUE of the change in policy.	met. In addition, we find the University did not notify CUE
of
the change in policy.
Therefore, the second element is also satisfied.	Therefore, the second element is also satisfied.
b.	b. 	The University's Conduct Constitutes A Change In Policy Within Scope	The University's Conduct Constitutes A Change In Policy Within Scope
25
The Board has held that a contract breach can support a unilateral change claim when	The Board has held that a contract breach can support a unilateral change claim when
La	the breaching party asserts that the contract authorizes its conduct. (Hacienda La Puente	the breaching party asserts that the contract authorizes its conduct. (Hacienda 	Puente
Unified School District (1997) PERB Decision No. 1186 (Hacienda).) Thus, in Hacienda, the	Unified School District (1997) PERB Decision No. 1186 (Hacienda).) Thus, in Hacienda, the
Board held that the district's unilateral change to a unit member's shift was a change in policy,	Board held that the district's unilateral change to a unit member's shift was a change in policy,
rather than an isolated breach, because the district relied upon its interpretation
of
therather than an isolated breach, because the district relied upon its interpretation of the
management rights clause in the contract and believed that the clause authorized it to make themanagement rights clause in the contract and believed that the clause authorized it to make the
change in shift. In addition, the Board has held that contract breaches may also support	change in shift. In addition, the Board has held that contract breaches may also support
unilateral change claims when there is a change in policy that is generally applicable to future	unilateral change claims when there is a change in policy that is generally applicable to future
situations. (State
of
California (Department
of
Youth Authority) (2000) PERB Decisionsituations. (State of California (Department of Youth Authority) (2000) PERB Decision
No. 1374-S (State
of
California).) Thus, in State
of
California, the Board held that the State'sNo. 1374-S (State of California).) Thus, in State of California, the Board held that the State's
change in the pattern
of
union representation at one institution was not a mere default in achange in the pattern of union representation at one institution was not a mere default in a
contractual obligation, but constituted an unlawful unilateral change in policy. The Board	contractual obligation, but constituted an unlawful unilateral change in policy. The Board
reasoned that the State's denial
of
permission for a steward to travel to other institutions was	reasoned that the State's denial of permission for a steward to travel to other institutions was
not a one-time breach, but rather, was generally applicable to future situations.	not a one-time breach, but rather, was generally applicable to future situations.
that	In the instant case, the University maintained, and continues to maintain, that	In the instant case, the University maintained, and continues to maintain,
Article 2.E was not intended to protect against transfers
of
work across bargaining unit linesArticle 2.E was not intended to protect against transfers of work across bargaining unit lines
except through formal reclassifications. As indicated above, we find this interpretation
ofexcept through formal reclassifications. As indicated above, we find this interpretation of
Article 2.E is contrary to the intended meaning of the language of that provision andArticle 2.E is contrary to the intended meaning of the language of that provision and
25

constitutes a repudiation of a policy contained in the parties' applicable MOU. (Grant Joint	constitutes a repudiation of a policy contained in the parties' applicable MOU. (Grant Joint
Union High School District (1982) PERB Decision No. 196.) Moreover, absent a finding to	Union High School District (1982) PERB Decision No. 196.) Moreover, absent a finding to
the	the contrary by this Board, it is clear that the University will continue to apply its narrow	contrary by this Board, it is clear that the University will continue to apply its narrow
interpretation of Article 2.E in future cases. Therefore, we find the University's breach in this	interpretation of Article 2.E in future cases. Therefore, we find the University's breach in this
instance constitutes a change in policy. In addition, we find the change in policy concerns a	instance constitutes a change in policy. In addition, we find the change in policy concerns a
matter within the scope of representation. (Alum Rock Union Elementary School District	matter within the scope of representation. (Alum Rock Union Elementary School District
(1983) PERB Decision No. 322 (Alum Rock).) Accordingly, the third and fourth elements of	(1983) PERB Decision No. 322 (Alum Rock).) Accordingly, the third and fourth elements of
the prima facie case for an unlawful unilateral change have been met.	the prima facie case for an unlawful unilateral change have been met.
Because all four elements have been satisfied, we find the University committed an	Because all four elements have been satisfied, we find the University committed an
unlawful unilateral change when it transferred Claunch's work to Vaitai and the other MOSCs	unlawful unilateral change when it transferred Claunch's work to Vaitai and the other MOSCs
working at the front desk of the clinic without providing notice of the transfer to CUE.	working at the front desk of the clinic without providing notice of the transfer to CUE.
22.. 	Case No. SF-CE-795-H (Berkeley PMB Department)	Case No. SF-CE-795-H (Berkeley PMB Department)
a
26
The charge in Case No. SF-CE-795-H alleged the University replaced major portions of	The charge in Case No. SF-CE-795-H alleged the University replaced major portions of
two administrative assistant III positions (bargaining unit positions) with two administrative	two administrative assistant III positions (bargaining unit positions) with two administrative
specialist positions (non-bargaining unit positions).	specialist positions (non-bargaining unit positions).
In this case, Golubovskaya and Braden performed work at the administrative	In this case, Golubovskaya and Braden performed work at the administrative
assistant III level for two years. According to the job description, 60 percent of the duties for	assistant III level for two years. According to the job description, 60 percent of the duties for
the administrative assistant 	position	the administrative assistant III position involve contract management, 20 percent of the duties	III 	involve contract management, 20 percent of the duties
involve grant preparation, 15 percent of the duties involve departmental accounting support	involve grant preparation, 15 percent of the duties involve departmental accounting support
and 5 percent of the duties involve supervision of a work-study position.	nd 5 percent of the duties involve supervision of a work-study position.
After Golubovskaya left the position, the department, upon approval by the Dean's	After Golubovskaya left the position, the department, upon approval by the Dean's
office, advertised for a specialist position and hired Luppino, a former administrative	office, advertised for a specialist position and hired Luppino, a former administrative
assistant III. Lupino left after a month and Braden was selected to fill that vacancy.	assistant III. Lupino left after a month and Braden was selected to fill that vacancy.
26

According to Braden, she continued to perform all
of
her previous work as an	According to Braden, she continued to perform all of her previous work as an administrative	administrative
assistant III position, but	assistant III position, but merely took on the grant work of two additional professors.	merely took on the grant work
of
two additional professors.
Instead of reposting Braden's administrative assistant III vacated position, the	ed position, the
department hired another administrative specialist, Serrano, to fill Braden's vacated position.	department hired another administrative specialist, Serrano, to fill Braden's vacated position.
Serrano was	Serrano was assigned the grant work of the professors previously assigned to Golubovskaya.	assigned the grant work
of
the professors previously assigned to Golubovskaya.
a.	a. 	The University	The University Breached Article 2.E	Breached Article 2.E
27
Instead
of
reposting Braden's administrative assistant III vacat
Based on our review
of
both the applicable job descriptions and	Based on our review of both the applicable job descriptions and Braden's testimony, we	Braden's testimony, we
find that a major portion
of
the duties performed by Golubovskaya and Braden	find that a major portion of the duties performed by Golubovskaya and Braden asas
administrative assistant IIIs was transferred to two administrative specialist positions. Further,	administrative assistant Ills was transferred to two administrative specialist positions. Further,
because the	because the department sought (and obtained) permission from the Dean's office to advertise	department sought (and obtained) permission from the Dean's office to advertise
for the administrative specialist position, we find the University clearly intended to transfer	for the administrative specialist position, we find the University clearly intended to transfer
this work to non-bargaining unit positions. Thus, pursuant to Article 2.E, the University had a	this work to non-bargaining unit positions. Thus, pursuant to Article 2.E, the University had a
duty to notice CUE
of
the	duty to notice CUE of the replacement of work. The University, however, failed to provide	replacement
of
work. The University, however, failed to provide
such notice. Accordingly, we	such notice. Accordingly, we find the University breached Article 2.E. In addition, we also	find the University breached Article 2.E. In addition, we also
find the University failed to provide notice
of
the change in policy. Therefore, the first and	find the University failed to provide notice of the change in policy. Therefore, the first and
second elements of the prima facie case for an unlawful unilateral change have been met.	second elements
of
the prima facie case for an unlawful unilateral change have been met.
b.	
b. 	The University's Conduct Constitutes A Change In Policy Within	The University's Conduct Constitutes A Change In Policy Within Scope	Scope
As indicated above, the Board has held that a contract breach can support a unilateral	As indicated above, the Board has held that a contract breach can support a unilateral
change claim when the breaching party asserts	change claim when the breaching party asserts that the contract authorizes its conduct.	that the contract authorizes its conduct.
(Hacienda. ) In addition, the Board has held that contract breaches may also support unilateral	(Hacienda.) In addition, the Board has held that contract breaches may also support unilateral
change claims when there is a change in policy that is generally	change claims when there is a change in policy that is generally applicable to future situations.	applicable to future situations.
(State of California.)	(State
of
California.)
For the reasons discussed in connection with Case No. SA-CE-247-H (UC Davis	For the reasons discussed in connection with Case No. SA-CE-247-H (UC Davis
Refractive Surgery), we find the University's breach in this instance also	Refractive Surgery), we find the University's breach in this instance also constitutes a change	constitutes a change
27

in policy. In addition, we find the change in policy concerns a matter within the scope of	in policy. In addition, we find the change in policy concerns a matter within the scope of
representation. (Alum Rock.) Accordingly, the third and fourth elements of the prima facierepresentation. (Alum Rock.) Accordingly, the third and fourth elements of the prima facie
case for an unlawful unilateral change have been met.	case for an unlawful unilateral change have been met.
Because all four elements have been satisfied, we find the University committed an	Because all four elements have been satisfied, we find the University committed an
unlawful unilateral change when it transferred a majority of the work performed by	unlawful unilateral change when it transferred a majority of the work performed by
Golubovskaya and Braden as administrative assistant IIIs to two administrative specialist	Golubovskaya and Braden as administrative assistant Ills to two administrative specialist
positions without providing notice of the transfer to CUE.positions without providing notice of the transfer to CUE.
3.	3. 	Case No. SA-CE-246-H (Kimberly Pearson)	Case No. SA-CE-246-H (Kimberly Pearson)
Pearson was a(_) assistant III in Mediaworks until her departure in early 2005. The	Pearson was a ( ) assistant III in Mediaworks until her departure in early 2005. The
position remained vacant for several months. During this time, Mitchell, a (_) assistant II in	position remained vacant for several months. During this time, Mitchell, a ( ) assistant II in
the IET business services sub-unit, noticed that the (_) assistant III position formerly held by	the IET business services sub-unit, noticed that the ( ) assistant III position formerly held by
Pearson was not posted. Instead, on April 6, 2005, Mitchell saw an electronic job posting for a	Pearson was not posted. Instead, on April 6, 2005, Mitchell saw an electronic job posting for a
financial and administrative analyst I position (a non-bargaining unit position) in Mediaworks.	financial and administrative analyst I position (a non-bargaining unit position) in Mediaworks.
Mitchell reviewed the posted job description and concluded that it comprised the same duties	Mitchell reviewed the posted job description and concluded that it comprised the same duties
as Pearson's position, but with the added duty of financial and statistical report generation.	as Pearson's position, but with the added duty of financial and statistical report generation.
The vacant analyst I position was subsequently filled by Francis. According to observations	The vacant analyst I position was subsequently filled by Francis. According to observations
made by Mitchell, Francis generates financial reports under the direction of the lead business	made by Mitchell, Francis generates financial reports under the direction of the lead business
services budget analyst, arranges meetings for the directors and managers, prepares	services budget analyst, arranges meetings for the directors and managers, prepares
entertainment expense reports, and processes purchase order requests.	entertainment expense reports, and processes purchase order requests.
a.	a. 	The University Breached Article 2.E	The University Breached Article 2.E
Based on our review, we find that a major portion of the duties performed by Pearson	Based on our review, we find that a major portion of the duties performed by Pearson
as a (_) assistant III were transferred to a financial and administrative analyst I position.	as a ( ) assistant III were transferred to a financial and administrative analyst I position.
Further, because the department submitted the position for a classification determination and	Further, because the department submitted the position for a classification determination and
because the University actually classified the position as an analyst I and released it for	because the University actually classified the position as an analyst I and released it for
28	28

recruitment, 	University 	work to a non-bargaining	recruitment, we find the University clearly intended to transfer this work to a non-bargaining	we find the 	clearly intended to transfer this
unit position. Thus, pursuant to Article 2.E, the University had a duty to notice CUE
of
the	unit position. Thus, pursuant to Article 2.E, the University had a duty to notice CUE of the
replacement
of
work. Since the University failed to provide such notice, we find the	replacement of work. Since the University failed to provide such notice, we find the
University breached Article 2.E. In addition, we also find the University failed to provide	University breached Article 2.E. In addition, we also find the University failed to provide
CUE with notice
of
the change in policy. Therefore, the first and second elements
of
the prima	CUE with notice of the change in policy. Therefore, the first and second elements of the prima
facie case for an unlawful unilateral change have been met.	facie case for an unlawful unilateral change have been met.
b.
	b. 	The University's Conduct Constitutes A Change In Policy Within Scope	The University's Conduct Constitutes A Change In Policy Within Scope
support	As indicated above, the Board has held that a contract breach can support a unilateral	As indicated above, the Board has held that a contract breach can 	a unilateral
change claim when the breaching party asserts that the contract authorizes its conduct.	change claim when the breaching party asserts that the contract authorizes its conduct.
(Hacienda.) In addition, the Board has held that contract breaches may also support unilateral	(Hacienda.) In addition, the Board has held that contract breaches may also support unilateral
change claims when there is a change in policy that is generally applicable to future situations.	change claims when there is a change in policy that is generally applicable to future situations.
of	(State of California.)	(State 	California.)
For the reasons discussed in connection with Case No. SA-CE-247-H (UC Davis	For the reasons discussed in connection with Case No. SA-CE-247-H (UC Davis
Refractive Surgery), we find the University's breach in this instance also constitutes a change	Refractive Surgery), we find the University's breach in this instance also constitutes a change
in policy. In addition, we find the change in policy concerns a matter within the scope
ofin policy. In addition, we find the change in policy concerns a matter within the scope of
representation. (Alum Rock.) Accordingly, the third and fourth elements
of
the prima facierepresentation. (Alum Rock.) Accordingly, the third and fourth elements of the prima facie
case for an unlawful unilateral change have been met.	case for an unlawful unilateral change have been met.
the	Because all four elements have been satisfied, we find the University committed an	Because all four elements have been satisfied, we find 	University committed an
unlawful unilateral change when it transferred a majority
of
the work formerly performed by	unlawful unilateral change when it transferred a majority of the work formerly performed by
Pearson as a ( ) assistant III to a financial and administrative analyst I position without	Pearson as a
(_)
assistant III to a financial and administrative analyst I position without
providing notice of the transfer to CUE.	providing notice of the transfer to CUE.
29	29

4.	4. 	Case No. SF-CE-760-H (International House)	Case No. SF-CE-760-H (International House)
The charge in Case No. SF-CE-760-H alleged the University replaced a major portion	The charge in Case No. SF-CE-760-H alleged the University replaced a major portion
of an administrative assistant II position (a bargaining unit position) with a student position (a	
of
an administrative assistant II position (a bargaining unit position) with a student position (a
non-bargaining unit position).	non-bargaining unit position).
In this case, Olivares held a 50 percent time position as an administrative assistant II	In this case, Olivares held a 50 percent time position as an administrative assistant II
within the physical operations unit at the International House, a dormitory facility. 	In thatwithin the physical operations unit at the International House, a dormitory facility. In that
capacity, Olivares manned the reception desk, prepared residential rooms for occupancy,	capacity, Olivares manned the reception desk, prepared residential rooms for occupancy,
managed parking, and performed other related support functions. 	Olivares left her position in	managed parking, and performed other related support functions. Olivares left her position in
April. The International House, however, was unable to recruit a replacement for Olivares	April. The International House, however, was unable to recruit a replacement for Olivares
because of a hiring freeze expected to last through the end of the fiscal year ending June 2005.	because
of
a hiring freeze expected to last through the end
of
the fiscal year ending June 2005.
Students are typically hired by the International House at the end
of
the school year to	Students are typically hired by the International House at the end of the school year to
conduct inventory
of
the vacated dormitory rooms. Henderson was hired in May 2005 to a	conduct inventory of the vacated dormitory rooms. Henderson was hired in May 2005 to a
50 percent student position, first for a one-week period, to perform such inventory duties. In50 percent student position, first for a one-week period, to perform such inventory duties. In
addition, she performed some
of
the duties previously performed by Olivares. The term
of
thisaddition, she performed some of the duties previously performed by Olivares. The term of this
position was subsequently extended to August 2005.position was subsequently extended to August 2005.
In July 2005, the University posted an opening for an administrative assistant II	In July 2005, the University posted an opening for an administrative assistant II
position. Henderson was interviewed and selected for the position. She assumed the status
ofposition. Henderson was interviewed and selected for the position. She assumed the status of
a CUE bargaining unit member in August 2005 as an administrative assistant II.	a CUE bargaining unit member in August 2005 as an administrative assistant II.
a.	a. 	The University Did Not Breach Article 2.E	The University Did Not Breach Article 2.E
p
e
p
e
30
Based on our review
of
the record, it appears that, while employed in the student	Based on our review of the record, it appears that, while employed in the student
position, Henderson did perform some duties beyond those normally associated with studen	osition, Henderson did perform some duties beyond those normally associated with student
employees. However, even though Henderson testified that she performed some parkingmployees. However, even though Henderson testified that she performed some parking
permit issuance duties and provided some note-taking for meetings, the record does notermit issuance duties and provided some note-taking for meetings, the record does not
establish that she performed more than 50 percent of the duties of an administrative assistant instablish that she performed more than 50 percent of the duties of an administrative assistant in
t
30

her capacity as a student employee. Accordingly, we find CUE failed to prove that theher capacity as a student employee. Accordingly, we find CUE failed to prove that the
University replaced a major portion of the administrative assistant II position with a student	University replaced a major portion of the administrative assistant II position with a student
position.	position.
However, even if Henderson performed more than 50 percent of the duties of the	However, even if Henderson performed more than 50 percent of the duties of the
administrative assistant II, the record does not support the notion that the University	administrative assistant II, the record does not support the notion that the University
manifested an intent to replace a major portion of that position. To the contrary, the position	manifested an intent to replace a major portion of that position. To the contrary, the position
clearly remained open during the pendency of the hiring freeze and was promptly filled whenclearly remained open during the pendency of the hiring freeze and was promptly filled when
the freeze was lifted. Moreover, there was nothing in the record to suggest the University	the freeze was lifted. Moreover, there was nothing in the record to suggest the University
intended to reclassify the position, designate the position for exclusion from the bargaining	intended to reclassify the position, designate the position for exclusion from the bargaining
unit or otherwise replace a major portion of a bargaining unit position with a position in aunit or otherwise replace a major portion of a bargaining unit position with a position in a
classification outside of the unit. To the contrary, the University filled the position with a	classification outside of the unit. To the contrary, the University filled the position with a
administrative assistant II as soon as the hiring freeze was lifted. Accordingly, we find CUE	administrative assistant II as soon as the hiring freeze was lifted. Accordingly, we find CUE
failed to establish that the University breached Article 2.E. Because the first element of the	failed to establish that the University breached Article 2.E. Because the first element of the
prima facie case for an unlawful unilateral change has not been met, we find the University's	prima facie case for an unlawful unilateral change has not been met, we find the University's
conduct in connection with this case did not constitute an unlawful unilateral change.	conduct in connection with this case did not constitute an unlawful unilateral change.
31
D.	D. Information Requests	Information Requests
An exclusive representative is entitled to all information that is "necessary and	An exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation. (Stockton.) PERB uses a liberal	relevant" to the discharge of its duty of representation. (Stockton.) PERB uses a liberal
standard, similar to a discovery-type standard, to determine the relevance of requestedstandard, similar to a discovery-type standard, to determine the relevance of requested
information. (Trustees of the California State University (1987) PERB Decision No. 613-Hinformation. (Trustees of the California State University (1987) PERB Decision No. 613-H
(Trustees).) If the relevance of the requested information is rebutted by the employer, the	(Trustees).) If the relevance of the requested information is rebutted by the employer, the
exclusive representative must establish how the information is relevant to its representational	exclusive representative must establish how the information is relevant to its representational
responsibilities such as negotiations or contract administration. (Trustees.)	responsibilities such as negotiations or contract administration. (Trustees.)
31

In defining the parameters of "necessary and relevant information" the Board has ruledIn defining the parameters of "necessary and relevant information" the Board has ruled
that if the requested information pertains immediately to a mandatory subject of bargaining, it	that if the requested information pertains immediately to a mandatory subject of bargaining, it
is presumptively relevant. (State of California (Departments of Personnel Administration and	is presumptively relevant. (State of California (Departments of Personnel Administration and
Transportation) (1997) PERB Decision No. 1227-S (Transportation).) Absent a valid defense,	Transportation) (1997) PERB Decision No. 1227-S (Transportation).) Absent a valid defense,
the failure to provide such information is a per se violation of the duty to bargain in good faith.	the failure to provide such information is a per se violation of the duty to bargain in good faith.
(Trustees.) On the other hand, the Board has ruled that information not within scope is not	(Trustees.) On the other hand, the Board has ruled that information not within scope is not
presumptively relevant. (Transportation.) In such cases, absent the presumption, the burdenpresumptively relevant. (Transportation. ) In such cases, absent the presumption, the burden
falls on the charging party to demonstrate the information sought is relevant and necessary to	falls on the charging party to demonstrate the information sought is relevant and necessary to
its representational responsibilities. (Ibid.)	its representational responsibilities. (Ibid.)
1.	1. 	Both Requests Sought Necessary And Relevant Information	Both Requests Sought Necessary And Relevant Information
CUE made two information requests. The Levine request sought a job vacancy listing for	CUE made two information requests. The Levine request sought a job vacancy listing for
all administrative specialist and assistant administrative analyst positions in 2003 and 2004 at the	all administrative specialist and assistant administrative analyst positions in 2003 and 2004 at the
UC Berkeley campus. In addition, the request sought the classification history and job	UC Berkeley campus. In addition, the request sought the classification history and job
descriptions for each position (both before and after the reclassifications) if the position was	descriptions for each position (both before and after the reclassifications) if the position was
reclassified while vacant. The Wilkinson request, a statewide request, sought the job titles and	reclassified while vacant. The Wilkinson request, a statewide request, sought the job titles and
job descriptions for both the unit and corresponding non-unit positions in instances when the	job descriptions for both the unit and corresponding non-unit positions in instances when the
University reclassified or replaced a vacant position with a non-bargaining unit position. The	University reclassified or replaced a vacant position with a non-bargaining unit position. The
request sought each such occurrence since March 12, 2002.	request sought each such occurrence since March 12, 2002.
32
In both instances, the University claimed that CUE did not have the right to information	In both instances, the University claimed that CUE did not have the right to information
regarding non-bargaining unit positions. The Board, however, has consistently held that both the	regarding non-bargaining unit positions. The Board, however, has consistently held that both the
removal of bargaining unit work and the preservation of unit work are mandatory subjects of	removal of bargaining unit work and the preservation of unit work are mandatory subjects of
bargaining. (Regents of the University of California (1989) PERB Decision No. 722-H; State of	bargaining. (Regents of the University of California (1989) PERB Decision No. 722-H; State of
California (Department of Personnel Administration) (1987) PERB Decision No. 648.)	California (Department of Personnel Administration) (1987) PERB Decision No. 648.)
Additionally, in cases alleging wrongful removal of bargaining unit work, the Board has heldAdditionally, in cases alleging wrongful removal of bargaining unit work, the Board has held
32

that job descriptions and job requisition forms of non-bargaining unit employees are necessary	that job descriptions and job requisition forms of non-bargaining unit employees are necessary
and relevant to a union's right to protect the bargaining unit work of its own members. (Regents	and relevant to a union's right to protect the bargaining unit work of its own members. (Regents
of the University of California (1998) PERB Decision No. 1255-H.)	of the University of California (1998) PERB Decision No. 1255-H.)
Here, both requests sought information regarding the reclassification or removal of work	Here, both requests sought information regarding the reclassification or removal of work
from the CUE bargaining unit as well as job descriptions that were relevant to the work	from the CUE bargaining unit as well as job descriptions that were relevant to the work
preservation issue. Based on the above cited authorities, the information requested was	preservation issue. Based on the above cited authorities, the information requested was
necessary	necessary and relevant to the discharge of CUE's duty of representation. Accordingly, absent a	and relevant to the discharge of CUE' s duty of representation. Accordingly, absent a
valid defense, we find the University was obligated to provide requested information.	valid defense, we find the University was obligated to provide requested information.
2. 	The University Failed To Prove The Requests Were Unduly Burdensome	2. 	The University Failed To Prove The Requests Were Unduly Burdensome
An employer's duty to provide relevant information, however, is not absolute. An	An employer's duty to provide relevant information, however, is not absolute. An
employer may be excused from providing information if the information is unavailable or the	employer may be excused from providing information if the information is unavailable or the
request is unduly burdensome. (Transportation. ) Similarly, the employer need not furnish	request is unduly burdensome. (Transportation.) Similarly, the employer need not furnish
information in a form more organized than its own records. (Ibid.) In addition, no violation will	information in a form more organized than its own records. (Ibid.) In addition, no violation will
be found where the employer responds and the union does not reassert or clarify its request for	be found where the employer responds and the union does not reassert or clarify its request for
information. (Oakland Unified School District (1983) PERB Decision No. 367.) The burden is	information. (Oakland Un(fied School District (1983) PERB Decision No. 367.) The burden is
on the employer to demonstrate its justification. (Stockton.)	on the employer to demonstrate its justification. (Stockton.)
33
The University's primary justification to withhold the information is the claim that with	The University's primary justification to withhold the information is the claim that with
no current database system in place to collect the position histories of vacant bargaining unit	no current database system in place to collect the position histories of vacant bargaining unit
positions, reconstruction of that history would impose an undue burden on its resources. It	positions, reconstruction of that history would impose an undue burden on its resources. It
characterizes the obligation as one of searching institutional memory through individuals who	characterizes the obligation as one of searching institutional memory through individuals who
do not currently have any responsibility to consider the analysis of positions which CUE seeks.	do not currently have any responsibility to consider the analysis of positions which CUE seeks.
According to the University, such a search would be an enormous task.	According to the University, such a search would be an enormous task.
As	As indicated above, the University bears the burden to prove the request was unduly	indicated above, the University bears the burden to prove the request was unduly
burdensome. (Stockton.) The fact that the information may not have been in the form that	burdensome. (Stockton. ) The fact that the information may not have been in the form that
33

would accommodate the interests of both the University and CUE does not automatically render	would accommodate the interests of both the University and CUE does not automatically render
CUE's request unduly burdensome. (Chula Vista City School District (1990) PERB Decision	CUE's request unduly burdensome. (Chula Vista City School District (1990) PERB Decision
No. 834.)	No. 834.)
In the instant case, except for its bare statements, the University failed to provide any	In the instant case, except for its bare statements, the University failed to provide any
evidence that providing the information would be unduly burdensome. The University's lack	evidence that providing the information would be unduly burdensome. The University's lack
of a database with position control to track vacant positions is insufficient, standing alone, to	of a database with position control to track vacant positions is insufficient, standing alone, to
justify its denials of the requests.	justify its denials of the requests.
Contrary to the University's assertions, we find the record suggests there were
manageable steps the University could have taken to comply with the requests. For instance,	manageable steps the University could have taken to comply with the requests. For instance,
with regard to the first request, Levine testified that job vacancies are maintained	with regard to the first request, Levine testified that job vacancies are maintained
electronically. Using that database, Levine stated the University could have generated a list of	electronically. Using that database, Levine stated the University could have generated a list of
the jobs posted for recruitment in 2002 and 2003 and sought the requested information	the jobs posted for recruitment in 2002 and 2003 and sought the requested information
regarding those jobs from the individual departments with the reported vacancies. With regard	regarding those jobs from the individual departments with the reported vacancies. With regard
to the second request, the University did not make any inquiries to the campuses or	to the second request, the University did not make any inquiries to the campuses or
departments regarding the request. Indeed, Chester admitted that he did not take any steps todepartments regarding the request. Indeed, Chester admitted that he did not take any steps to
determine whether the individual campuses had the ability to provide the requested	determine whether the individual campuses had the ability to provide the requested
information.	information.
34
Contrary to the University's assertions, we find the record suggests there were
Simply put, the University failed to put on sufficient evidence to demonstrate the	Simply put, the University failed to put on sufficient evidence to demonstrate the
requested information was unduly burdensome. In addition, the University failed to	requested information was unduly burdensome. In addition, the University failed to
demonstrate it was not able to obtain the information through the exercise of reasonable	demonstrate it was not able to obtain the information through the exercise of reasonable
diligence. Instead, from the outset of the requests, the University adopted the position that the	diligence. Instead, from the outset of the requests, the University adopted the position that the
information has no bearing on the enforcement of Article 2.E, and refused to provide any	information has no bearing on the enforcement of Article 2.E, and refused to provide any
information. Accordingly, we find the University failed to establish the request was	information. Accordingly, we find the University failed to establish the request was
sufficiently burdensome to justify its refusal to provide the requested information.	sufficiently burdensome to justify its refusal to provide the requested information.
34

3.	3. 	Equally Available Information	Equally Available Information
In its appeal, the University claims it did not have a duty to provide information that	In its appeal, the University claims it did not have a duty to provide information that
was available to CUE on the human resources website. At the outset, the University asserts	was available to CUE on the human resources website. At the outset, the University asserts
that CUE had access to current job vacancies on the human resources website. However, the	that CUE had access to current job vacancies on the human resources website. However, the
record is unclear as to whether CUE had the same level of access to the information as the	record is unclear as to whether CUE had the same level of access to the information as the
University. Moreover, even if the parties had equal access to the current vacancies listed on	University. Moreover, even if the parties had equal access to the current vacancies listed on
the	the website, the first request did not seek information about current vacancies and the second	website, the first request did not seek information about current vacancies and the second
request did not seek information about job vacancies at all. Accordingly, the information to	request did not seek information about job vacancies at all. Accordingly, the information to
which CUE allegedly had equal access constituted, at most, a small portion of the requested	which CUE allegedly had equal access constituted, at most, a small portion of the requested
information.	information.
One of the purposes of information requests is to assist the parties in the enforcement of	One of the purposes of information requests is to assist the parties in the enforcement of
negotiated provisions within the MOU. In addition, such requests provide a mechanism for a	negotiated provisions within the MOU. In addition, such requests provide a mechanism for a
requesting party to determine the accuracy of its own information. These purposes, however,	requesting party to determine the accuracy of its own information. These purposes, however,
are not furthered when both parties have equal access to the same information. Accordingly,	are not furthered when both parties have equal access to the same information. Accordingly,
we find that an employer is not obligated to provide requested information when the parties	we find that an employer is not obligated to provide requested information when the parties
have equal access to the same information from the same source. In such cases, however, the	have equal access to the same information from the same source. In such cases, however, the
employer must tell the requesting party the location of the information.	employer must tell the requesting party the location of the information.
35
According to the University, its website was the sole source of some of the requested	According to the University, its website was the sole source of some of the requested
information. Thus, we find the University was not required to provide CUE with information	information. Thus, we find the University was not required to provide CUE with information
relevant to its request if that information was available on the University's website, and CUE	relevant to its request if that information was available on the University's website, and CUE
and the University had equal access to such information. However, the University's statement	and the University had equal access to such information. However, the University's statement
that the information was on its website was insufficient, standing alone, to discharge its duty.	that the information was on its website was insufficient, standing alone, to discharge its duty.
Instead, the University was required to inform CUE where on the website the information	Instead, the University was required to inform CUE where on the website the information
resided. With regard to information that was not equally available to both parties on the	resided. With regard to information that was not equally available to both parties on the
35

University's website, we	University's website, we find the University failed to provide adequate justification to warrant	find the University failed to provide adequate justification to warrant
its refusal to provide CUE the information it requested. In so doing, the University breached	its refusal to provide CUE the information it requested. In so doing, the University breached
its duty to bargain in good faith and, therefore, violated section 3571(c) of the HEERA.	its duty to bargain in good faith and, therefore, violated section 3571(c)
of
the HEERA.
REMEDY	EMEDY	R
Pursuant to HEERA section 3563.3, PERB has the remedial authority:	Pursuant to HEERA section 3563.3, PERB has the remedial authority:
to issue a decision and order directing an
off
ending party to cease	to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative	and desist from the unfair practice and to take such affirmative
action, including, but not limited to, the reinstatement of	action, including, but not limited to, the reinstatement
of
employees with or without back pay, as will effectuate the	employees with or without back pay, as will effectuate the
policies	policies of this chapter.	
of
this chapter.
It has been found that the University:	It has been found that the University: (1) committed an unlawful unilateral change in	(1) committed an unlawful unilateral change in
Case Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H when it unilaterally changed the	Case Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H when it unilaterally changed the
policy requiring notice to CUE when it reclassifies, designates a position for exclusion from	policy requiring notice to CUE when it reclassifies, designates a position for exclusion from
the unit, or replaces a major portion
of
a unit position with a position in a classification outside	the unit, or replaces a major portion of a unit position with a position in a classification outside
the unit; and (2) violated its duty to bargain in good faith in Case No. SF-CE-760-H when it	the unit; and (2) violated its duty to bargain in good faith in Case No. SF-CE-760-H when it
refused to provide information consisting of vacancies in non-bargaining unit positions which	refused to provide information consisting
of
vacancies in non-bargaining unit positions which
may have assumed work
of
since-vacated bargaining unit positions and the history
of
those	may have assumed work of since-vacated bargaining unit positions and the history of those
positions as described through job descriptions.	positions as described through job descriptions.
36
The traditional remedy in unilateral	The traditional remedy in unilateral change cases is to order the University to rescind	change cases is to order the University to rescind
its	its policy and cease making unilateral changes in negotiable matters from that point forward.	policy and cease making unilateral changes in negotiable matters from that point forward.
Thus, with regard to Case Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H, it is	Thus, with regard to Case Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H, it is
appropriate to order the University to rescind its decision to implement the unlawful policyappropriate to order the University to rescind its decision to implement the unlawful policy
change. It is also appropriate to order	change. It is also appropriate to order the restoration of bargaining unit positions vacated as a	the restoration
of
bargaining unit positions vacated as a
result
of
the unlawful transfer
of
a major	result of the unlawful transfer of a major portion of their duties to non-bargaining unit	portion
of
their duties to non-bargaining unit
positions.	positions. While it is normally appropriate to order the employer to make all employees	While it is normally appropriate to order the employer to make all employees
affected by its unlawful actions	affected by its unlawful actions whole, we will not order a return to the status quo in cases	whole, we will not order a return to the status quo in cases
36

where an adverse effect on employees may result. 	(Marin Community	where an adverse effect on employees may result. (Marin Community College District (1995)	College District (1995)
PERB Decision No. 1092.) Therefore, to the extent that employees received the benefit of	PERB Decision No. 1092.) Therefore, to the extent that employees received the benefit
of
movement to a higher	movement to a higher paying position, a make-whole remedy is not imposed.	paying position, a make-whole remedy is not imposed.
In the case
of
the refusals to provide information,	In the case of the refusals to provide information, the appropriate remedy includes a	the appropriate remedy includes a
cease-and-desist	cease-and-desist order and an order to provide the information upon request by CUE.	order and an order to provide the information upon request by CUE.
(Regents; Trustees.)	(Regents; Trustees.)
It
is also appropriate	It is also appropriate that the University be required to post a notice incorporating the	that the University be required to post a notice incorporating the
terms of this order at the campuses, medical centers and laboratories where notices to	terms
of
this order at the campuses, medical centers and laboratories where notices to
employees are customarily posted. Posting
of
such a notice, signed by an	employees are customarily posted. Posting of such a notice, signed by an authorized agent of	authorized agent
of
the University,	the University, will inform employees that the University has acted in an unlawful manner, is	will inform employees that the University has acted in an unlawful manner, is
being required to cease and desist from	being required to cease and desist from such activity, and will comply with the terms of the	such activity, and will comply with the terms
of
the
order. It effectuates the purpose of the HEERA that employees are informed of the resolution	order.	
It
effectuates the purpose
of
the HEERA that employees are informed
of
the resolution
of
this dispute and the University's readiness to comply with	of this dispute and the University's readiness to comply with the ordered remedy.	the ordered remedy.
CONCLUSION	CONCLUSION
Based on the foregoing, we find	Based on the foregoing, we find that Case No. SA-CE-251-H was not timely filed and,	that Case No. SA-CE-251-H was not timely filed and,
therefore,	therefore, is time-barred by application of PERB's six month statute of limitations. In	is time-barred by application
of
PERB
's
six month statute oflimitations. In
addition,	addition, we find the University committed an unlawful unilateral change in Case	we find the University committed an unlawful unilateral change in Case
Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H, but did not commit an unlawful	Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H, but did not commit an unlawful
unilateral change	unilateral change in Case No. SF-CE-760-H. Last, we find the University unlawfully refused	in Case No. SF-CE-760-H. Last, we find the University unlawfully refused
to provide information requested by CUE without	to provide information requested by CUE without adequate justification in Case	adequate justification in Case
No. SF-CE-760-H.	No. SF-CE-760-H.
ORDER	ORDER
Based upon the foregoing findings of fact, conclusions of law, and the entire record in	Based upon the foregoing findings of fact, conclusions of law, and the entire record in
this matter, it has been found that the Regents of the University of California	this matter, it has been found that the Regents of the University of California (University)	(University)
37	37

violated the Higher Education Employer-Employee Relations Act (HEERA) by: (1)	violated the Higher Education Employer-Employee Relations Act (HEERA) by: (1)
unilaterally implementing changes in the policy	unilaterally implementing changes in the policy requiring notice to the Coalition of University	requiring notice to the Coalition
of
University
Employees (CUE) when it reclassifies, designates a position for exclusion from the unit, or	Employees (CUE) when it reclassifies, designates a position for exclusion from the unit,
or
replaces a major portion	replaces a major portion of a unit position with a position in a classification outside the unit;	
of
a unit position with a position in a classification outside the unit;
and (2) refusing	and (2) refusing to provide information to CUE consisting of vacancies in non-bargaining unit	to provide information to CUE consisting
of
vacancies in non-bargaining unit
positions which may have assumed work
of
since-vacated	positions which may have assumed work of since-vacated bargaining unit positions and the	bargaining unit positions and the
history of those positions as described through job descriptions.	history
of
those positions as described through job descriptions.
The unfair practice charge and	The unfair practice charge and complaint in Case No. SA-CE-251-H is hereby	complaint in Case No. SA-CE-251-H is hereby
DISMISSED. The unilateral change allegation in Case No. SF-CE-760-H is also DISMISSED.	DISMISSED. The unilateral change allegation in Case No. SF-CE-760-H is also DISMISSED.
Pursuant to HEERA section 3563.3, it is hereby ordered that the University and its	Pursuant to HEERA section 3563.3, it is hereby ordered that the University and its
representatives shall:	representatives shall:
38
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1.	
1. Unilaterally implementing changes in the policy requiring notice to CUE	Unilaterally implementing changes in the policy requiring notice to CUE
when it	when it reclassifies, designates a position for exclusion from the unit, or replaces a major	reclassifies, designates a position for exclusion from the unit, or replaces a major
portion
of	portion of a unit position with a position in a classification outside the unit.	a unit position with a position in a classification outside the unit.
2.	2. 	Refusing to	Refusing to provide information to CUE regarding vacancies in non-	provide information to CUE regarding vacancies in non-
bargaining unit positions which may have	bargaining unit positions which may have assumed work of since-vacated bargaining unit	assumed work
of
since-vacated bargaining unit
positions	positions and the history of those positions as described through job descriptions.	and the history
of
those positions as described through job descriptions.
B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:	EFFECTUATE THE POLICIES OF HEERA:
1 .	
1.	
Rescind	Rescind the policy limiting notice required by Article 2, section E to	the policy limiting notice required by Article 2, section E to
those	those cases where a formal reclassification has commenced and adhere to the obligation to	cases where a formal reclassification has commenced and adhere to the obligation to
provide notice to CUE	provide notice to CUE pursuant to the terms of the 2003-2004 memorandum of understanding.	pursuant to the terms of the 2003-2004 memorandum of understanding.
The University shall provide notice to CUE when it intends to replace more than 50 percent of	The University shall provide notice to CUE when it intends to replace more than 50 percent of
38

39
the work of a bargaining unit position with that of a non-bargaining unit position consistent	the work of a bargaining unit position with that of a non-bargaining unit position consistent
with this decision.	with this decision.
2.	2. 	Restore bargaining unit positions vacated or eliminated as a result of the	Restore bargaining unit positions vacated or eliminated as a result of the
unlawful transfer of a major portion of their duties to non-bargaining unit positions in Case	unlawful transfer of a major portion of their duties to non-bargaining unit positions in Case
Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H.	Nos. SA-CE-247-H, SF-CE-795-H and SA-CE-246-H.
3.	3. 	Upon request, provide lists of Berkeley campus administrative specialist	Upon request, provide lists of Berkeley campus administrative specialist
and assistant administrative analyst positions posted for recruitment in the years 2003 and	and assistant administrative analyst positions posted for recruitment in the years 2003 and
2004, as well as the "classification history" for each of the positions including before and after	2004, as well as the "classification history" for each of the positions including before and after
job descriptions if a bargaining unit position became vacant (or was eliminated) as a result.	job descriptions if a bargaining unit position became vacant (or was eliminated) as a result.
4.	4. 	Upon request, provide the job titles of all positions filled since	Upon request, provide the job titles of all positions filled since
March 12, 2002 where the new position replaced, in large part, a clerical bargaining unit	March 12, 2002 where the new position replaced, in large part, a clerical bargaining unit
position, as well as the job descriptions for both positions.	position, as well as the job descriptions for both positions.
5.	5. 	With regard to the provision of information described in Sections B.3	With regard to the provision of information described in Sections B.3
and B.4, above, the University is not required to provide information that is contained on the	and B.4, above, the University is not required to provide information that is contained on the
University's website and is otherwise equally accessible to both parties or information the	University's website and is otherwise equally accessible to both parties or information the
University is not able to obtain through the exercise of reasonable diligence. In circumstances	University is not able to obtain through the exercise of reasonable diligence. In circumstances
involving information that is equally available to both parties on the University's website, the	involving information that is equally available to both parties on the University's website, the
University	University shall provide CUE with the location where the information resides on the website.	shall provide CUE with the location where the information resides on the website.
6.	6. 	Within ten (10) workdays of service of a final decision in this matter,	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations at the campuses, medical centers and laboratories of the University of	post at all work locations at the campuses, medical centers and laboratories of the University of
California where notices to employees are customarily posted, copies of the Notice attached	California where notices to employees are customarily posted, copies of the Notice attached
hereto as the Appendix. The Notice must be signed by an authorized agent of the University,	hereto as the Appendix. The Notice must be signed by an authorized agent of the University,
indicating that the University will comply with the terms of the Order. Such posting shall be	indicating that the University will comply with the terms of the Order. Such posting shall be
39

maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken	maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to	to ensure that the Notice is not reduced in size, altered, defaced or covered with any other	ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.	material.
40
7.	7. 	Within thirty (30) workdays of service of a final decision in this matter,	Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of the Public Employment Relations Board, or her designee, in	notify the General Counsel of the Public Employment Relations Board, or her designee, in
writing, of the steps the employer has taken to comply with the terms of this Order. Continue	writing, of the steps the employer has taken to comply with the terms of this Order. Continue
to report in writing to the Regional Director periodically thereafter as directed. All reports to	to report in writing to the Regional Director periodically thereafter as directed. All reports to
the Regional Director shall be served concurrently on the charging parties.	the Regional Director shall be served concurrently on the charging parties.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.	Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
40

APPENDIX	APPENDIX
NOTICE TO EMPLOYEES	NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE	POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California	An Agency of the State of California
After a hearing in Unfair Practice Case Nos. SA-CE-246-H, SA-CE-247-H,	After a hearing in Unfair Practice Case Nos. SA-CE-246-H, SA-CE-247-H,
SA-CE-251-H, SF-CE-760-H, and SF-CE-795-H, consolidated for hearing and decision under	SA-CE-251-H, SF-CE-760-H, and SF-CE-795-H, consolidated for hearing and decision under
the title Coalition of University Employees v. Regents of the University of California,	the title Coalition of University Employees v. Regents of the University of California, in which	in which
the parties had the right to participate, it has been found that the Regents of the University of	the parties had the right to participate, it has been found that the Regents of the University of
California (University) violated the Higher Education Employer-Employee Relations Act	California (University) violated the Higher Education Employer-Employee Relations Act
(HEERA), Government Code section 3571(a) and (c), by: (1) unilaterally implementing	(HEERA), Government Code section 357l(a) and (c), by: (1) unilaterally implementing
changes in the policy requiring notice to the Coalition of University Employees (CUE) when it	changes in the policy requiring notice to the Coalition of University Employees (CUE) when it
reclassifies, designates a position for exclusion from the unit, or replaces a major portion of a	reclassifies, designates a position for exclusion from the unit, or replaces a major portion of a
unit position with a position in a classification outside the unit; and (2) refusing to provide	unit position with a position in a classification outside the unit; and (2) refusing to provide
information to CUE consisting of vacancies in non-bargaining unit positions which may have	information to CUE consisting of vacancies in non-bargaining unit positions which may have
assumed work of since-vacated bargaining unit positions and the history of those positions as	assumed work of since-vacated bargaining unit positions and the history of those positions as
described through job descriptions.	described through job descriptions.
As	As a result of this conduct, we have been ordered to post this Notice and we will:	a result of this conduct, we have been ordered to post this Notice and we will:
A	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1 .	1. 	Unilaterally implementing changes in the policy requiring notice to CUE	Unilaterally implementing changes in the policy requiring notice to CUE
when it reclassifies, designates a position for exclusion from the unit, or replaces a major	when it reclassifies, designates a position for exclusion from the unit, or replaces a major
portion of a unit position with a position in a classification outside the unit.	portion of a unit position with a position in a classification outside the unit.
2.2. 	Refusing to provide information to CUE consisting of vacancies in non-	Refusing to provide information to CUE consisting of vacancies in non-
bargaining	bargaining unit positions which may have assumed work of since-vacated bargaining unit	unit positions which may have assumed work of since-vacated bargaining unit
positions	positions and the history of those positions as described through job descriptions.	and the history of those positions as described through job descriptions.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:	EFFECTUATE THE POLICIES OF HEERA:
1 .	1. 	Rescind the policy limiting notice required by Article 2, section E to	Rescind the policy limiting notice required by Article 2, section E to
those cases where a formal reclassification has commenced and adhere to the obligation to	those cases where a formal reclassification has commenced and adhere to the obligation to
provide notice to CUE pursuant to the terms of the 2003-2004 memorandum of understanding.	provide notice to CUE pursuant to the terms of the 2003-2004 memorandum of understanding.
The University shall provide notice to CUE when it intends to replace more than 50 percent of	The University shall provide notice to CUE when it intends to replace more than 50 percent of
the work of a bargaining unit position with that of a non-bargaining unit position.	the work of a bargaining unit position with that of a non-bargaining unit position.
2. 	Restore bargaining unit positions vacated or eliminated as a result of the	Restore bargaining unit positions vacated or eliminated as a result of the
unlawful transfer of a major portion of their duties to non-bargaining unit positions in Case	unlawful transfer of a major portion of their duties to non-bargaining unit positions in Case
Nos. SA-CE-247-H, SF-CE-795-H, and SA-CE-246-H.	Nos. SA-CE-247-H, SF-CE-795-H, and SA-CE-246-H.
3.	3. 	Upon request, provide lists of Berkeley campus administrative specialist	Upon request, provide lists of Berkeley campus administrative specialist
and assistant administrative analyst positions posted for recruitment in the years 2003 and	and assistant administrative analyst positions posted for recruitment in the years 2003 and

2004, as well as the "classification history" for each of the positions including before and after	2004, as well as the "classification history" for each of the positions including before and after
job descriptions if a bargaining unit position became vacant (or was eliminated) as a result.	job descriptions if a bargaining unit position became vacant (or was eliminated) as a result.
2
44.. 	Upon request, provide the job titles of all positions filled since March 12,	Upon request, provide the job titles of all positions filled since March 12,
2002 where the new position replaced, in large part, a clerical bargaining unit position, as well	2002 where the new position replaced, in large part, a clerical bargaining unit position, as well
as the job descriptions for both positions.	as the job descriptions for both positions.
55.. 	With regard to the provision of information described in sections B.3 and	With regard to the provision of information described in sections B.3 and
B.4, above, the University is not required to provide information that is contained on the	B.4, above, the University is not required to provide information that is contained on the
University's website and is otherwise equally accessible to both parties or information the	University's website and is otherwise equally accessible to both parties or information the
University is not able to obtain through the exercise of reasonable diligence. In circumstances	University is not able to obtain through the exercise of reasonable diligence. In circumstances
involving information that is equally available to both parties on the University's website, the	involving information that is equally available to both parties on the University's website, the
University shall provide CUE with the location where the information resides on the website.	University shall provide CUE with the location where the information resides on the website.
Dated:	Dated: 	REGENTS OF THE UNIVERSITY OF	REGENTS OF THE UNIVERSITY OF
CALIFORNIA	CALIFORNIA
By:	By:
Authorized Agent	Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY	THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30)	(30)CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER	REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.	MATERIAL.
2