Regents of the University of California * * * CLARIFIED by Regents of the University of California (2025) PERB Order No. Ad-525-H * * * (PERB 2398H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,
Charging Party, 	Case No. LA-CE-1103-H
PERB Decision No. 2398-H
REGENTS OF THE UNIVERSITY OF 	November 17, 2014
CALIFORNIA,
Respondent.
Appearances: Leonard Carder by Matthew D. Ross, Attorney, for University Council-
American Federation of Teachers; Paul, Plevin, Sullivan & Connaughton by Sandra L.
McDonough, Attorney, for Regents of the University of California.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by University Council-American Federation of Teachers
(UC-AFT or Union) to a proposed decision by a PERB administrative law judge (ALJ). The
complaint alleged that the Regents of the University of California (UC or University) violated
section 3571(a) and (c) of the Higher Education Employer-Employee Relations Act (HEERA)
by misclassifying part-time instructors as adjunct professors instead of lecturers, thereby
repudiating a negotiated agreement regarding classification of bargaining unit members and
unilaterally removing bargaining unit work.
The complaint also alleged that UC violated its duty to bargain in good faith by
refusing to provide information necessary and relevant to the union in the course of its
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,
Charging Party,
v.
REGENTS OF
THE
UNIVERSITY OF
CALIFORNIA,
Res ondent.
Case No. LA-CE-1103-H
PERB Decision No. 2398-H
November 17, 2014
Appearances: Leonard Carder by Matthew D. Ross, Attorney, for University Council-
American Federation
of
Teachers; Paul, Plevin, Sullivan & Connaughton by Sandra L.
McDonough, Attorney, for Regents
of
the University
of
California.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB
or
Board) on exceptions
by
University Council-American Federation
of
Teachers
(UC-AFT or Union) to a proposed decision by a PERB administrative law judge (ALJ). The
complaint alleged that the Regents
of
the University
of
California (UC or University) violated
section 3571(a) and (c)
of
the Higher Education Employer-Employee Relations Act (HEERA)1
by misclassifying part-time instructors as adjunct professors instead
of
lecturers, thereby
repudiating a negotiated agreement regarding classification
of
bargaining unit members and
unilaterally removing bargaining unit work.
The complaint also alleged that UC violated its duty to bargain in good faith by
refusing to provide information necessary and relevant to the union in the course
of
its
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. ·
* * * CLARIFIED by Regents of the University of California (2025) PERB Order No. Ad-525-H * * *

collective bargaining and representational functions, viz., a list of the non-teaching duties of
adjunct professors at University of California, Los Angeles (UCLA) Law School (Law School)
and other documents pertaining to hiring decisions made by the UCLA Law School.
The ALJ dismissed the allegations concerning UC's unilateral change and removal of
bargaining-unit work, holding that they were untimely filed, and that UC-AFT had not satisfied
its burden to prove any exception to the statute of limitations (in this case, equitable tolling or
continuing violation). Having so concluded, the ALJ did not reach the merits of the complaint
concerning alleged unilateral change in the classification of unit members or alleged transfer of
unit work. He did, however, find that the allegations regarding UC's refusal to provide
information were timely and concluded that UC violated HEERA by refusing to provide
requested information.
UC-AFT excepted to the ALJ's dismissal of the allegations regarding misclassifications
of the instructors and removal of bargaining unit work. UC did not except to the ALJ's finding
that it violated HEERA by refusing to provide information to UC-AFT.
The Board has reviewed the entire record in this case, including the complaint, the
hearing record, the parties' post-hearing briefs and responses thereto, the ALJ's findings of fact
and conclusions of law, UC-AFT's exceptions and UC's response thereto. Based on this
review, we conclude that the ALJ's partial dismissal based on timeliness grounds should be
reversed in light of the Board's decision in Los Angeles Unified School District (2014) PERB
Decision No. 2359 (Brown), which held, in relevant part, that the statute of limitations is an
affirmative defense and that a respondent to an unfair practice complaint carries the burden of
proving that the complaint is not timely.
22
collective bargaining and representational functions, viz., a list of the non-teaching duties of
adjunct professors at University of California, Los Angeles (UCLA) Law School (Law School)
and other documents pertaining to hiring decisions made by the UCLA Law School.
The ALJ dismissed the allegations concerning UC's unilateral change and removal of
bargaining-unit work, holding that they were untimely filed, and that UC-AFT had not satisfied
its burden to prove any exception to the statute of limitations (in this case, equitable tolling or
continuing violation). Having so concluded, the ALJ did not reach the merits of the complaint
concerning alleged unilateral change in the classification of unit members or alleged transfer of
unit work. He did, however, find that the allegations regarding UC's refusal to provide
information were timely and concluded that UC violated HEERA by refusing to provide
requested information.
UC-AFT excepted to the ALJ's dismissal of the allegations regarding misclassifications
of the instructors and removal of bargaining unit work. UC did not except to the ALJ's finding
that it violated HEERA by refusing to provide information to UC-AFT.
The Board has reviewed the entire record in this case, including the complaint, the
hearing record, the parties' post-hearing briefs and responses thereto, the ALJ's findings of fact
and conclusions oflaw, UC-AFT's exceptions and UC's response thereto. Based on this
review, we conclude that the ALJ's partial dismissal based on timeliness grounds should be
reversed in light of the Board's decision in Los Angeles Unified School District (2014) PERB
Decision No. 2359 (Brown), which held, in relevant part, that the statute oflimitations is an
affinnative defense and that a respondent to an unfair practice complaint carries the burden of
proving that the complaint is not timely.

Because the parties litigated the merits of the complaint and made an adequate record
on which to determine the merits, we do so here." For reasons described more fully below, we
conclude UC violated HEERA by repudiating the agreement between it and UC-AFT regarding
the classification of lecturers and adjunct professors. However, we dismiss allegations that UC
unlawfully transferred bargaining unit work. We also affirm the ALJ's determination that UC
failed to adequately respond to UC-AFT's information request, and order it to do so.
PROCEDURAL HISTORY
UC-AFT represents lecturers, but not adjunct professors (adjuncts). This dispute over
the classification of instructors at the Law School originated in March 2009 when the Union
filed a grievance alleging: "UCLA School of Law has incorrectly placed faculty into . . .
[adjunct faculty codes.] These adjunct faculty should be in assigned UC-AFT bargaining unit
title codes." The history of this grievance is described in greater detail, infra.
By January 2010, UC-AFT withdrew its grievance. On May 13, 2010, it filed this
unfair practice charge alleging that UC abandoned an agreed-upon policy intended to protect
bargaining unit work by instructing University officials to refrain from using adjunct
appointments to perform lecturer duties. This agreement, referred to as the Switkes Letter,
requires adjuncts to be engaged in some level of research and University and public service, in
addition to their teaching duties, according to the UC-AFT. The charge alleged that by
classifying individuals as adjuncts when they did the same work as lecturers, UC had
unilaterally changed the policy articulated in the Switkes Letter in violation of HEERA
section 3571(c).
PERB's Office of the General Counsel issued a complaint alleging that on or about
January 1, 2010, the University changed the policy embodied in the Switkes Letter when it
2 PERB Regulation 32320(a)(1) authorizes the Board to issue a decision based upon the
record of the hearing.
3
Because the parties litigated the merits
of
the complaint and made an adequate record
on which to determine the merits, we do so here.2 For reasons described more fully below, we
conclude UC violated HEE RA
by
repudiating the agreement between it and UC-AFT regarding
the classification
of
lecturers and adjunct professors. However, we dismiss allegations that UC
unlawfully transferred bargaining unit work. We also affirm the ALJ's determination that UC
failed to adequately respond to UC-AFT's information request, and order it to do so.
PROCEDURAL HISTORY
UC-AFT represents lecturers, but not adjunct professors (adjuncts). This dispute over
the classification
of
instructors at the Law School originated in March 2009 when the Union
filed a grievance alleging: "UCLA School
of
Law has incorrectly placed faculty into
...
[adjunct faculty codes.] These adjunct faculty should be in assigned UC-AFT bargaining unit
title codes." The history
of
this grievance is described
in
greater detail, infra.
By January 2010, UC-AFT withdrew its grievance. On May 13,2010, it filed this
unfair practice charge alleging that UC abandoned an agreed-upon policy intended to protect
bargaining unit work
by
instructing University officials to refrain from using adjunct
appointments to perform lecturer duties. This agreement, referred to as the Switkcs Letter,
requires adjuncts to be engaged in some level
of
research and University and public service, in
addition to their teaching duties, according to the UC-AFT. The charge alleged that by
classifying individuals as adjuncts when they did the same work as lecturers, UC had
unilaterally changed the policy articulated in the Switkes Letter in violation ofHEERA
section 3571(c).
PERB's Office
of
the General Counsel issued a complaint alleging that on or about
January 1, 2010, the University changed the policy embodied in the Switkes Letter when it .
2 PERB Regulation 32320(a)(l) authorizes the Board to issue a decision based upon the
record of the hearing. 	·
3

appointed individuals as adjuncts who did not meet the duties/criteria specified in
section 280-4 of the Academic Personnel Manual (APM), a University policy manual not
negotiated with UC-AFT, and in the Switkes Letter. The complaint also alleged that the same
conduct unilaterally removed bargaining unit work (teaching-only) from lecturers and gave it
to adjuncts.
An informal conference was held on April 1, 2011, but the case was not settled. A
formal hearing was held on February 27-29, and March 1-2, 2012, during which the ALJ
granted UC-AFT's motion to amend the complaint to allege that the alleged violations
occurred six months before the grievance was filed, or September 9, 2008. The proposed
decision issued on September 20, 2012, and UC-AFT filed timely exceptions on November 8,
2012. UC filed its response to those exceptions on December 24, 2012.
FACTUAL SUMMARY
UC-AFT represents Unit 18 at the University of California, which is composed of all
non-academic senate instructional employees, including approximately 3,000 lecturers.
Lecturers are considered a teaching-only classification, in that they are not expected to engage
in academic research as part of their job with UC. UC's academic policies covering adjuncts,
who are not in the bargaining unit, include an expectation that adjuncts will engage in some
research and University and public service, in addition to teaching. The distinction between
these two classifications had been a matter of dispute between UC-AFT and UC for some time
prior to the events in this case. Negotiations over the issue occupied most of three years and
resulted in an agreement in 2003. Relevant portions of the parties' agreements are set forth
below.
e Unit Determination for Professional Non-Academic Senate Instructional and
Research Employees of the University of California (1982) PERB Decision No. 270-H,
pp. 9-10, noting that lecturers generally have no research responsibility.
appointed individuals
as
adjuncts who did not meet the duties/criteria specified in
section 280-4
of
the Academic Personnel Manual (APM), a University policy manual not
negotiated with UC-AFT, and in the Switkes Letter. The complaint also alleged that the same
conduct unilaterally removed bargaining unit work (teaching-only) from lecturers and gave it
to adjuncts.
An informal conference was held on April
1,
2011, but the case was not settled. A
formal hearing was held on February 27-29, and March 1-2, 2012, during which the ALJ
granted UC-AFT's motion to amend the complaint to allege that the alleged violations
occurred six months before the grievance was filed, or September 9, 2008. The proposed
decision issued on September 20, 2012, and UC-AFT filed timely exceptions on November 8,
2012. UC filed its response to those exceptions on December 24, 2012.
FACTUAL SUMMARY
UC-AFT represents Unit 18 at the University
of
California, which is composed
of
all
non-academic senate instructional employees, including approximately 3,000 lecturers.
Lecturers are considered a teaching-only classification, in that they are not expected to engage
in academic research as part
of
their job with UC.3
UC's academic policies covering adjuncts,
who are not in the bargaining unit, include an expectation that adjuncts will engage in some
research and University and public service, in addition to teaching. The distinction between
these two classifications had been a matter
of
dispute between UC-AFT and UC for some time
prior to the events in this case. Negotiations over the issue occupied most
of
three years and
resulted in an agreement in 2003. Relevant portions
of
the parties' agreements are set forth
below.
SeSee Unit Determination/or Professional Non-Academic Senate Instructional and
Research Employees
of
the University
of
California (1982) PERB Decision No. 270-H,
pp. 9-10, noting that lecturers generally have no research responsibility.
4

The Memorandum of Understanding (MOU)
The parties' MOU provides, in pertinent part:
ARTICLE 5
A. GENERAL
This article provides a general description of the duties that
correspond to the titles identified in Article 1, Recognition. The
definitions are for purposes of illustration and not limitation, and
are not full descriptions of all duties and responsibilities assigned
to members of the bargaining unit during the course of their
employment. No appointees to these titles are members of the
Academic Senate. . . .
B. DEFINITIONS
1. The title Lecturer, whether used as an only title or as an
additional title, shall be assigned to a professionally
qualified appointee not under consideration for
appointment in the Professional series (in contrast to the
usual expectation of Acting Appointees) whose services
are contracted for certain teaching duties.
C. The term "NSF or instructional faculty" shall be used throughout
this MOU to refer to all instructional faculty and non-faculty
employees within the unit. The use of the term "NSF or
instructional faculty" shall not be understood to alter in any way
the definition of the term "faculty" as used outside of the MOU,
including in APM [Academic Personnel Manual] 110 and in
reference to the Academic Senate.
D. In reviewing claims that an individual has been misclassified
within the unit, or that a member of the unit has been assigned
duties inappropriate for the position, an arbitrator shall interpret
the above descriptions in the light of generally accepted normal
duties associated with the position.
Claims that an NSF has been incorrectly appointed to a non-unit
title shall be pursued solely through the Public Employment
Relations Board. [emphasis added.]
5
The Memorandum
of
Understanding (MOU)
The parties' MOU provides, in pertinent part:
ARTICLE 5
A. GENERAL
This article provides a general description
of
the duties that
correspond to the titles identified in Article
1,
Recognition. The
definitions are for purposes
of
illustration and not limitation, and
are not full descriptions
of
all duties and responsibilities assigned
to members
of
the bargaining unit during the course
of
their
employment. No appointees to these titles are members
of
the
Academic Senate
....
B. 	DEFINITIONS
1.	
The title Lecturer, whether used as an only title or as an
additional title, shall be assigned to a professionally
qualified appointee not under consideration for
appointment in the Professional series (in contrast to the
usual expectation
of
Acting Appointees) whose services
are contracted for certain teaching duties.
C. The term "NSF or instructional faculty" shall be used throughout
this MOU to refer to all instructional faculty and non-faculty
employees within the unit. The use
of
the term "NSF or
instructional faculty" shall not be understood to alter
in
any way
the definition
of
the term "faculty'' as used outside
of
the MOU,
including in APM [Academic Personnel Manual] 110 and in
reference to the Academic Senate.
D. In reviewing claims that an individual has been misclassified
within the unit, or that a member
of
the unit has been assigned
duties inappropriate for the position, an arbitrator shall interpret
the above descriptions in the light
of
generally accepted normal
duties associated with the position.
E. 	Claims that an NSF has been incorrectly appointed to a non-unit
title shall be pursued solely through the Public Employment
Relations Board. [emphasis added.]
5

With respect to this Section E, the parties jointly prepared a Contract
Administration Manual (CAM) that was intended to be a guide for interpreting the
MOU. It provides an interpretive gloss on this section as follows:
Claims of improper classification should initially be brought to the
University's attention through informal discussions or the grievance
process. If the parties cannot resolve this issue(s), the AFT's mechanism
to challenge the University's use of a non-NSF titles [sic] to teach is
through PERB.*
The Academic Personnel Manual
Another document relevant to this dispute is the APM, a University policy manual not
negotiated with AFT. It provides, in relevant part, with respect to adjuncts:
APM 280-4:
Titles in this series may be assigned (1) to individuals who are
predominantly engaged in research or other creative work and
who participate in teaching, or (2) to individuals who contribute
primarily to teaching and have a limited responsibility for
research or other creative work; these individuals may be
professional practitioners of appropriate distinction. Appointees
with titles in this series also engage in University and public
service consistent with their assignments.
[Emphasis added.] APM 280-10, regarding criteria for selection and advancement of adjuncts,
reiterates the research and service expectations. It provides, in relevant part:
A candidate for appointment or advancement in this series
[Adjunct Professor] shall be judged by the four criteria specified
below. Evaluation of the candidate with respect to these criteria
shall take appropriately into account the nature of the University
assignment of duties and responsibilities and shall adjust
accordingly the emphasis to be placed on each of the criteria. For
example, a candidate may have a heavy workload in research and
a relatively light workload in teaching.
The four criteria are:
UC objected to the CAM being introduced into evidence based on testimony by its
witness that the parties agreed it would not be admissible in evidence. The ALJ implicitly
overruled this objection by referring to the CAM in his decision. UC did not except to this.
With respect to this Section E, the parties jointly prepared a Contract
Administration Manual (CAM) that was intended to be a guide for interpreting the
MOU. It provides an interpretive gloss on this section as follows:
Claims of improper classification should initially be brought to the
University's attention through informal discussions or the grievance
process. If the parties cannot resolve this issue(s), the AFT's mechanism
to challenge the University's use of a non-NSF titles [sic] to teach is
through PERB.4
The Academic Personnel Manual
Another document relevant to this dispute is the APM, a University policy manual not
negotiated with AFT. It provides, in relevant part, with respect to adjuncts:
APM280-4:
Titles in this series may be assigned (1) to individuals who are
predominantly engaged in research or other creative work and
who participate in teaching, or (2) to individuals who contribute
primarily to teaching and have a limited responsibility for
research or other creative work; these individuals may be
professional practitioners of appropriate distinction. Appointees
with titles in this series also engage in University and public
service consistent with their assigmnents.
[Emphasis added.] APM 280-10, regarding criteria for selection and advancement of adjuncts,
reiterates the research and service expectations. It provides, in relevant part:
A candidate for appointment or advancement in this series
[Adjunct Professor] shall be judged by the four criteria specified
below. Evaluation of the candidate with respect to these criteria
shall take appropriately into account the nature of the University
assignment of duties and responsibilities and shall adjust
accordingly the emphasis to be placed on each of the criteria. For
example, a candidate may have a heavy workload in research and
a relatively light workload in teaching.
The four criteria are:
4 UC objected to the CAM being introduced into evidence based on testimony by its
witness that the parties agreed it would not be admissible in evidence. The ALJ implicitly
overruled this objection by referring to the CAM in his decision. UC did not except to this.
6

a. 	Teaching
b. 	Research and creative work
C. 	Professional competence and activity
d. 	University and public service
APM 280-16, establishes certain restrictions regarding appointment of adjuncts. It provides, in
relevant part:
a. When participation in teaching is less than one course a year (or
equivalent), the appointee should be considered for transfer to
another academic title.
Professional Researchers who teach less than one course a year,
or equivalent, on a regular basis should hold a Lecturer title in
conjunction with the research title. Individuals who are primarily
researchers and who teach regularly at least one course a year (or
equivalent) should be appointed in the Adjunct Professor series
for their whole appointment. Clinical teaching may satisfy the
teaching requirement.
For appointments in which teaching is the main activity, it should
be demonstrated clearly before appointment to the Adjunct
Professor series that a "teaching only title" such as Lecturer is not
appropriate (e.g., a faculty member who also has clinical
responsibilities). If, during an appointment in the Adjunct
Professor series, research ceases to be part of the appointee's
duties, the individual should be considered for transfer to another
academic title.
[Emphasis added. ]
APM 283-20, "Conditions of Employment" for lecturers provides, in
relevant part:
a. A Lecturer or Senior Lecturer may teach courses of any grade.
b. This appointment will not imply the responsibility of engaging in
research; but if the appointee desires to do so and the department
considers the appointee competent for such work, it may provide
the appropriate facilities.
c. In view of the limited responsibilities in areas other than
teaching, a Lecturer or Senior Lecturer normally will be assigned
77
a. 	Teaching
b. 	Research and creative work
c. 	Professional competence and activity
d. 	University and public service
APM 280-16, establishes certain restrictions regarding appointment of adjuncts. It provides, in
relevant part:
a. 	When participation in teaching is less than one course a year (or
equivalent), the appointee should be considered for transfer to
another academic title.
Professional Researchers who teach less than one course a year,
or equivalent, on a regular basis should hold a Lecturer title in
conjunction with the research title. Individuals who are primarily
researchers and who teach regularly at least one course a year (or
equivalent) should be appointed in the Adjunct Professor series
for their whole appointment. Clinical teaching may satisfy the
teaching requirement.
For appointments in which teaching is the main activity, it should
be demonstrated clearly before appointment to the Adjunct
Professor series that a "teaching only title" such as Lecturer is not
appropriate (e.g., a faculty member who also has clinical
responsibilities). If, during an appointment in the Adjunct
Professor series, research ceases to be part of the appointee's
duties, the individual should be considered for transfer to another
academic title.
[Emphasis added.]
APM 283-20, "Conditions of Employment" for lecturers provides, in
relevant part:
a. 	A Lecturer or Senior Lecturer may teach courses of any grade.
b. 	This appointment will not imply the responsibility of engaging in
research; but if the appointee desires to do so and the department
considers the appointee competent for such work, it may provide
the appropriate facilities.
c. 	In view of the limited responsibilities in areas other than
teaching, a Lecturer or Senior Lecturer normally will be assigned

a heavier instructional load (relative to full-time-equivalent
service) than that normally given to an appointee in the
professorial series.
[Emphasis added. ]
The Switkes Letter
In 2003, the parties concluded negotiations for a successor agreement, believing they
had settled the long-standing dispute over the boundaries between lecturers and adjuncts.
UC-AFT considered obtaining limits on the appointments of adjuncts to be a critical part of
establishing some job security for the lecturers. In the Union's view, adjuncts were being used
to do lecturer work. Responding to the Union's interest in ensuring adjunct positions were
only assigned if the responsibilities of the position were substantially similar to the
responsibilities assigned to professors, UC was willing to reiterate that adjuncts must engage in
research and University and community service, and that adjuncts should not be used in lieu of
lecturers. UC proposed in May 2002 that Ellen Switkes, the assistant vice president for
academic advancement for the office of the president, send a letter to the academic vice-
chancellors and all UC campuses clarifying the distinctions between adjuncts and lecturers.
There was further negotiation about various terms of the Switkes Letter, including discussion
over the concept of what constituted individuals of "appropriate distinction."
The parties did not reach agreement until a year later, and circulation of the final
negotiated version of the Switkes Letter was a critical part of the settlement of the MOU. This
letter provides, in pertinent part:
During the recently concluded Unit 18 negotiations between the
University and the UC-AFT, the parties engaged in discussions
regarding the University's use of Adjunct and Visiting Professor
appointments. I write to affirm the University policy definitions
for such titles set forth in the Academic Personnel Manual.
APM - 280-4, Adjunct Professor Series, provides: Titles in this
series may be assigned (1) to individuals who are predominately
a heavier instructional load (relative to full-time-equivalent
service) than that normally given to an appointee
in
the
professorial series.
[Emphasis added.]
The Switkes Letter
In 2003, the parties concluded negotiations for a successor agreement, believing they
had settled the long-standing dispute over the boundaries between lecturers and adjuncts.
UC-AFT considered obtaining limits
on
the appointments
of
adjuncts to be a critical part
of
establishing some job security for the lecturers. In the Union's view, adjtmcts were being used
to do lecturer work. Responding to the Union's interest in ensuring adjunct positions were
only assigned
if
the responsibilities
of
the position were substantially similar to the
responsibilities assigned to professors, UC was willing to reiterate that adjuncts must engage
in
research and University and community service, and that adjuncts should not
be
used in lieu
of
lecturers. UC proposed in May 2002 that Ellen Switkes, the assistant vice president for
academic advancement for the office
of
the president, send a letter to the academic vice-
chancellors and all UC campuses clarifying the distinctions between adjuncts and lecturers.
There was further negotiation about various terms
of
the Switkes Letter, including discussion
over the concept
of
what constituted individuals
of
"appropriate distinction."
The parties did not reach agreement until a year later, and circulation
of
the final
negotiated version
of
the Switkes Letter was a critical part
of
the settlement
of
the MOU. This
letter provides, in pertinent part:
During the recently concluded Unit 18 negotiations between the
University and the UC-AFT, the parties engaged in discussions
regarding the University's use
of
Adjunct and Visiting Professor
appointments. I write to affirm the University policy definitions
for such titles set forth in the Academic Personnel Manual.
APM - 280-4, Adjunct Professor Series, provides: Titles in this
series may be assigned (1) to individuals who are predominately
8

engaged in research or other creative work and who participate in
teaching, or (2) to individuals who contribute primarily to
teaching and have limited responsibility for research or other
creative work, so long as these individuals are professional
practitioners of appropriate distinction. Appointees with titles in
this series also engage in University and public service consistent
with their assignments.
. . . . APM -220-4, Professor Series, provides: The professorial
series is used for appointees who are members of the faculty of an
academic or professional college or school of the University who
have instructional as well as research, University, and public
service responsibilities.
Similar to the expectations placed on Academic Senate faculty.
Adjunct and Visiting Professor appointees are expected to
perform teaching, research and service that extend beyond class-
related advising. As such, their annual teaching loads should not
be the same as Lecturers in the same department. Adjunct and
Visiting Professor appointments should not be used for those
performing Lecturer duties.
(Switkes Ltr., Jt. Ex. V, emphasis added.)
The Grievance
In early 2009, UC-AFT began to suspect that the UC was not complying with the
Switkes Letter at Law School when a Union representative learned of some faculty members
with whom she was not familiar who were teaching classes, but were not on the list of Law
School lecturers. The Union then requested the names from the University and title codes of
everyone teaching at Law School. When the University responded on February 26, 2009,
UC-AFT observed an abnormally high number of adjunct professors at Law School compared
to the other University of California schools of law.
It should be noted that the Switkes Letter differs from APM 280-4, which reads in
pertinent part: "(2) to individuals who contribute primarily to teaching and have a limited
responsibility for research or other creative work; these individuals may be professional
practitioners of appropriate distinction." Unlike in the Switkes Letter, there is no conditional
phrase, "so long as," in the APM.
99
engaged in research or other creative work and who participate in
teaching, or (2) to individuals who contribute primarily to
teaching and have limited responsibility for research or other
creative work, so long as these individuals are professional
practitioners of appropriate distinction. Appointees with titles in
this series also engage in University and public service consistent
with their assignmentsY1
. . . . APM - 220-4, Professor Series, provides: The professorial
series is used for appointees who are members of the faculty of an
academic or professional college or school of the University who
have instructional as well as research, University, and public
service responsibilities.
Similar to the expectations placed on Academic Senate faculty,
Adjunct and Visiting Professor appointees are expected to
perform teaching, research and service that extend beyond class-
related advising. As such, their annual teaching loads should not
be the same as Lecturers in the same department. Adjunct and
Visiting Professor appointments should not be used for those
performing Lecturer duties.
(Switkes Ltr., Jt. Ex. V, emphasis added.)
The Grievance
In early 2009, UC-AFT began to suspect that the UC was not complying with the
Switkes Letter at Law School when a Union representative learned of some faculty members
with whom she was not familiar who were teaching classes, but were not on the list of Law
School lecturers. The Union then requested the names from the University and title codes of
everyone teaching at Law School. When the University responded on February 26, 2009,
UC-AFT observed an abnonnally high number of adjunct professors at Law School compared
to the other University of California schools oflaw.
5 It should be noted that the Switkes Letter differs from APM 280-4, which reads in
pertinent part: "(2) to individuals who contribute primarily to teaching and have a limited
responsibility for research or other creative work; these individuals may be professional
practitioners of appropriate distinction." Unlike in the Switkes Letter, there is no conditional
phrase, "so long as," in the APM.

UC-AFT filed a grievance on March 9, 2009, over what it considered the high number
of adjuncts appointed at UCLA Law School. The grievance alleged: "UCLA School of Law
has incorrectly placed faculty into [adjunct faculty codes]; these adjunct faculty should be in
assigned UC-AFT bargaining unit title codes." Despite the fact that the Union conceded that it
did not have sufficient information to determine whether all or any of the adjuncts were
misclassified, it filed the grievance to preserve timelines.
The parties processed this grievance in accordance with the MOU, conducting a Step 1
meeting on April 23, 2009. UC denied the grievance at Step 2 on July 1, 2009 and the Union
moved the grievance to Step 3 arbitration on July 27, 2009. UC asked for a Step 2 review on
August 4, 2009, but according to the ALJ, the paper trail disappeared at that point. According
to the testimony of Maria Elena Cortez (Cortez), UC-AFT's executive director, the grievance
had been moved to arbitration by early August 2009.
At some point between August 2009 and January 2010, the parties had agreed upon an
Arbitrator, Kenneth Perea, to hear this grievance. However, on January 15, 2010, UC-AFT
wrote to UC withdrawing the request for arbitration, explaining that it "recognized that
arbitration was not the correct forum for this matter." Article 5.E of the MOU provides that
"[claims that an NSF has been incorrectly appointed to a non-unit title shall be pursued solely
through the Public Employment Relations Board." UC did not object to the Union's
withdrawal of the grievance.
UC-AFT informed UC that it intended to file a PERB charge, given the language in the
MOU, but offered to delay filing for a couple of weeks so the parties could engage in
settlement discussions. UC assented to this delay.
10	10
UC-AFT filed a grievance on March 9, 2009, over what it considered the high number
of adjuncts appointed at UCLA Law School. The grievance alleged: "UCLA School of Law
has incorrectly placed faculty into [adjunct faculty codes]; these adjunct faculty should be in
assigned UC-AFT bargaining unit title codes." Despite the fact that the Union conceded that it
did not have sufficient information to determine whether all or any of the adjuncts were
misclassified, it filed the grievance to preserve timelines.
The parties processed this grievance in accordance with the MOU, conducting a Step 1
meeting on April 23, 2009. UC denied the grievance at Step 2 on July 1, 2009 and the Union
moved the grievance to Step 3 arbitration on July 27, 2009. UC asked for a Step 2 review on
August 4, 2009, but according to the ALJ, the paper trail disappeared at that point. According
to the testimony of Maria Elena Cortez (Cortez), UC-AFT's executive director, the grievance
had been moved to arbitration by early August 2009.
At some point between August 2009 and January 2010, the parties had agreed upon an
Arbitrator, Kenneth Perea, to hear this grievance. However, on January 15, 2010, UC-AFT
wrote to UC withdrawing the request for arbitration, explaining that it "recognized that
arbitration was not the correct forum for this matter." Article 5.E of the MOU provides that
"[ c]laims that an NSF has been incorrectly appointed to a non-unit title shall be pursued solely
through the Public Employment Relations Board." UC did not object to the Union's
withdrawal of the grievance.
UC-AFT informed UC that it intended to file a PERB charge, given the language in the
MOU, but offered to delay filing for a couple of weeks so the parties could engage in
settlement discussions. UC assented to this delay.

UC's Appointment Process at UCLA Law School
Over the five-to-ten-year period preceding the hearing, the Law School had more than
doubled its advanced and specialized course offerings. According to a UC witness,
Myra Saunders (Saunders), an associate dean at the Law School, the Law School started hiring
more adjuncts in 2007, although it had always used them. The adjunct professors at issue here
are hired for part-time instruction. They are legal practitioners, such as judges, senior partners
in law firms, managing attorneys from public interest organizations, etc.
When Law School determines its curricular needs, it reviews resumes obtained from
advertising and from recommendations from faculty members, alumni and practicing attorneys.
Associate Dean Saunders reviews resumes and applications to make an initial determination
whether the applicant should be appointed as an adjunct or a lecturer. This process includes
verifying the candidate's publications, and ascertaining information about the applicant's
reputation and contributions to the profession. This information is forwarded to the Law
School External Appointments Committee (Committee), which is typically composed of
tenured faculty.
The Committee assesses candidates based on four factors: (1) teaching, (2) research
and other creative work, (3) professional activity, and (4) University and public service. If the
candidate does not meet the criteria for the adjunct series, but is otherwise a desirable
candidate for some instructional position, the candidate's paperwork is processed for a lecturer
position.
As the ALJ noted, the dispute in this case centers primarily on the second clause of
APM 280-4 and its interpretation in the Switkes Letter, viz.: "individuals who contribute
primarily to teaching and have limited responsibility for research or other creative work, so
long as these individuals are professional practitioners of appropriate distinction."
11
	11
UC's
Appointment Process at UCLA Law School
Over the five'-io-ten-year period preceding the hearing, the Law School had more than
doubled its advanced and specialized course offerings. According to a UC witness,
Myra Saunders (Saunders), an associate dean at the Law School, the Law School started hiring
more adjuncts in 2007, although it had always used them. The adjunct professors at issue here
are hired for part-time instruction. They are legal practitioners, such as judges, senior partners
in law firms, managing attorneys from public interest organizations, etc. 6
When Law School determines its curricular needs, it reviews resumes obtained from
advertising and from recommendations from faculty members, alumni and practicing attorneys.
Associate Dean Saunders reviews resumes and applications to make an initial determination
whether the applicant should be appointed as an adjunct or a lecturer. This process includes
verifying the candidate's publications, and ascertaining information about the applicant's
reputation and contributions to the profession. This information is forwarded to the Law
School External Appointments Committee (Committee), which is typically composed
of
tenured faculty.
The Committee assesses candidates based on four factors: (1) teaching, (2) research
and other creative work, (3) professional activity, and (4) University and public service.
If
the
candidate does not meet the criteria for the adjunct series, but is otherwise a desirable
candidate for some instructional position, the candidate's paperwork is processed for a lecturer
position.
6 As the ALJ noted, the dispute in this case centers primarily on the second clause of
APM 280-4 and its interpretation in the Switkes Letter, viz.: "individuals who contribute
primarily to teaching and have limited responsibility for research or other creative work, so
long as these individuals are professional practitioners of appropriate distinction."

Recommendations for appointment of adjuncts are forwarded to the Dean of the Law
School for her review and approval, and then finally reviewed by Carole Goldberg (Goldberg),
vice-chancellor for academic personnel at UCLA.' Goldberg testified that she reviews the file
developed by the Law School, including the letter that describes how a particular individual
satisfies the criteria in the APM for appointment as an adjunct. Like Saunders, Goldberg
explained that the research component in the APM is satisfied by part-time adjuncts when they
continue "the work that they do in their distinguished practice." [R.T., vol. IV, p. 103.] The
same is true for the public service and University service requirement. As Goldberg explained,
because part-time adjuncts are not on campus as much as full-time professors, part-time
adjuncts would not be appointed to serve on University committees.
Despite Goldberg's role as the final decision-maker for academic appointments at the
Law School, she was not familiar with the Switkes Letter. When asked, without reference to
"the Switkes letter," if she was generally familiar with a negotiated agreement pertaining to the
hiring of adjuncts and lecturers, she replied, "I work with the APM and the CALL as the
authoritative documents. . . .". Another UC witness, Esther Hamil, associate director of the
UCLA academic personnel office, was familiar with the Switkes Letter, but in her view, the
letter did nothing to alter or clarify the APM with regard to adjuncts and lecturers. In her view,
the Switkes Letter merely reiterates the APM.
When asked what the difference was between adjunct professors and lecturers,
Goldberg said that a lecturer was expected to be exclusively focused on teaching. But the
adjunct would be someone who is not just a skilled instructor, but one who has "achieved a
" Goldberg is also the Jonathan D. Varat distinguished professor of law at the Law
School.
The UCLA CALL, to which Goldberg referred, is the campus policies and procedures
manual, which supplements the University's APM but does not incorporate the Switkes Letter.
Recommendations for appointment
of
adjuncts are forwarded to the Dean
of
the Law
School for her review and approval, and then finally reviewed
by
Carole Goldberg (Goldberg),
vice-:chancellor for academic personnel atUCLA.7 Goldberg testified that she reviews the file
developed
by
the Law School, including the letter that describes how a particular individual
satisfies the criteria in the APM for appointment as an adjunct. Like Saunders, Goldberg
explained that the research component in the APM is satisfied
by
part-time adjuncts when they
continue "the work that they do in their distinguished practice." [RT., vol. IV, p. 103.] The
same is true for the public service and University service requirement. As Goldberg explained,
because part-time adjuncts are not on campus as much as full-time professors, part-time
adjuncts would not be appointed to serve on University committees.
Despite Goldberg's role as the final decision-maker for academic appointments at the
Law School, she was not familiar with the Switkes Letter. When asked, without reference to
"the Switkes letter,"
if
she was generally familiar with a negotiated agreement pertaining to the
hiring
of
adjuncts and lecturers, she replied, "I work with the APM and the CALL8 as the
authoritative documents
....
". Another UC witness, Esther Hamil, associate director
of
the
UCLA academic personnel office, was familiar with the Switkes Letter, but in her view, the
letter did nothing to alter or clarify the APM with regard to adjuncts and lecturers. In her view,
the Switkes Letter merely reiterates the APM.
When asked what the difference was between adjunct professors and lecturers,
Goldberg said that a lecturer was expected to be exclusively focused on teaching. But the
adjunct would be someone who is not just a skilled instructor, but one who has "achieved a
7 Goldberg is also the Jonathan D. Varat distinguished professor oflaw at the Law
School.8 The UCLA CALL, to which Goldberg referred, is the campus :policies and procedures
manual, which supplements the University's APM but does not incorporate the Switkes Letter.
12	12

certain degree of recognition and distinction in practice, and was continuing to do that on an
ongoing basis." [R.T., vol. IV, p. 121.] This testimony sums up UC's position: it appoints the
most distinguished, experienced applicants for part-time instructional positions in the Law
School as adjunct professors. Others receive appointments as lecturers.
Implementation of the Appointments Process
According to documents provided by UC to the Union, the Law School employed
between 28 and 30 part-time adjunct professors per year since the 2008-2009 academic year.
The vast majority of these appointments are "by-agreement" appointments, meaning that they
are not assigned an appointment percentage, such as 25 percent of a full time equivalent."
Nearly all of the part-time adjunct professors teach only one class per year, and they
understood their duties to merely teach the single class for which they were hired. None of the
adjuncts who testified at the administrative hearing were ever informed by UC that they were
expected to perform any duties for UC beyond teaching and holding office hours. Nor were
adjuncts who perform community service outside the University, such as sitting on various
boards, ever informed by UC that they were expected to continue such service as part of their
responsibilities as adjuncts.
The evidence showed a certain level of randomness in who was designated as an
adjunct. Numerous adjuncts had few or no publications. (See CP Exh. 12; Resp. Exh. H.)
There were a few instances in which two instructors taught the same class, either as team
teachers or teaching separate classes on the same subject matter, but one was classified as an
adjunct and the other as a lecturer. For example, Victor Jih, a partner at the eminent firm of
O'Melveny and Myers (O'Melveny and Myers), who had extensive appellate experience, was
hired as a lecturer to teach Ninth Circuit appellate advocacy. This same class was also taught
"According to the Union, it is the part-time "by-agreement" adjuncts at the Law School
that have been mis-classified and should be considered lecturers.
13
certain degree ofrecognition and distinction in practice, and was continuing to do that on an
ongoing basis." [R.T., vol. IV, p. 121.] This testimony sums up
UC's
position: it appoints the
most distinguished, experienced applicants for part-time instructional positions in the Law
School as adjunct professors. Others receive appointments as lecturers.
Implementation
of
the Appointments Process
According to documents provided
by
UC to the Union, the Law School employed
between 28 and 30 part-time adjunct professors per year since the 2008-2009 academic year.
The vast majority
of
these appointments are ''by-agreement" appointments, meaning that they
are not assigned an appointment percentage, such as 25 percent
of
a full time equivalent.9
Nearly all
of
the part-time adjunct professors teach only one class per year, and they
understood their duties to merely teach the single class for which they were hired. None
of
the
adjuncts who tes~ifi.ed at the administrative hearing were ever informed
by
UC that they were
expected to perform any duties for UC beyond teaching and holding office hours. Nor were
adjuncts who perfonn community service outside the University, such as sitting on various
boards, ever informed by UC that they were expected to continue such service as part
of
their
responsibilities as adjuncts.
The evidence showed a certain level
of
randomness in who was designated as an
adjunct. Numerous adjuncts had few or no publications. (See CP Exh. 12; Resp. Exh. H.)
There were a few instances in which two instructors taught the same class, either as team
teachers or teaching separate classes on the same subject matter, but one was classified as an
adjunct and the other as a lecturer. For example, Victor Jih, a partner at the eminent finn
of
O'Melveny and Myers (O'Melveny and Myers), who had extensive appellate experience, was
hired as a lecturer to teach Ninth Circuit appellate advocacy. This same class was also taught
9 According to the Union, it'is the part-time "by-agreement" adjuncts at the Law School
that have been mis-classified and should be considered lecturers.
13

by Charles Lifland (Lifland), another partner at O'Melveny and Myers. Both performed the
same duties, lecturing and working with students on the appellate cases they were assigned.
Yet Lifland was classified as an adjunct.
The same situation occurred with the Law School's immigration clinic, which was team
taught by Judy London (London) and Kris Jackson (Jackson), both attorneys with Public
Counsel, a public interest law firm. They both performed the same duties, and neither was
assigned any additional responsibilities for research or service as part of their academic
appointment. Yet London, who was the directing attorney at Public Counsel, was assigned as
an adjunct, and Jackson was hired as a lecturer.
Information Requests
At the Step 1 grievance meeting, UC-AFT asked the University to provide it with a list
of duties assigned to the adjuncts and to explain the process that the Law School used to decide
who would be assigned as an adjunct. UC responded simply that it followed the APM. The
Union followed up this request with a detailed written request on May 8, 2009, which sought,
among other things, the names of adjunct professors at the Law School, funding sources of
those positions, guidelines and policies relied on by the Law School for determining whether to
classify the individual as a lecturer or adjunct, the specific teaching assignments of adjuncts,
and the non-teaching duties and areas of research assigned to each adjunct.
On June 29, 2009, UC responded to this request, providing some, but not all, of the
requested information. Specifically, it failed to respond to the request for the adjuncts' non-
teaching duties and research areas, repeating the response it gave to the Union at the Step 1
grievance meeting: the non-teaching duties were assigned in accordance with the APM.
UC-AFT renewed this information request on March 30, 2010, two months before this
unfair practice charge was filed, and UC's response was similar to its previous response. It
14
by Charles Lifland (Lifland), another partner at O'Melveny and Myers. Both performed the
same duties, lecturing and working with students on the appellate cases they were assigned.
Yet Lifland was classified as an adjunct.
The same situation occurred with the Law School's immigration clinic, which was team
taught
by
Judy London (London) and Kris Jackson (Jackson), both attorneys with Public
Counsel, a public interest law firm. They both performed the same duties, and neither was
assigned any additional responsibilities for research or service as part
of
their academic
appointment. Yet London, who was the directing attorney at Public Counsel, was assigned as
an adjunct, and Jackson was hired as a lecturer.
Information Requests
At the Step 1 grievance meeting, UC-AFT asked the University to provide it with a list
of
duties assigned to the adjuncts and to explain the process that the Law School used to decide
who would be assigned as an adjunct. UC responded simply that it followed the APM. The
Union followed up this request with a detailed written request on May 8, 2009, which sought,.
among other things, the names
of
adjunct professors at the Law School, funding sources
of
those positions, guidelines and policies relied on by the Law School for determining whether to
classify the individual as a lecturer or adjunct, the specific teaching assigmnents
of
adjuncts,
and the non-teaching duties and areas
of
research assigned to each adjunct.
On June 29, 2009, UC responded to this request, providing some, but not all,
of
the
requested infonnation. Specifically, it failed to respond to the request for the adjuncts' non-
teaching duties and research areas, repeating the response it gave to the Union at the Step 1
grievance meeting: the non-teaching duties were assigned in accordance with the APM.
UC-AFT renewed this infonnation request on March 30, 2010, two months before this
unfair practice charge was filed, and UC's response was similar to its previous response. It
14

provided the names of the adjuncts appointed for that academic year, but did not provide
copies of appointment letters or a list of non-teaching duties assigned to adjuncts, relying again
on the APM. UC indicated that all adjuncts were expected to meet the research and creative
work criteria listed in the APM 280-10-b. UC also asserted that it had no duty to provide the
information sought by UC-AFT, because it did not represent adjuncts.
PROPOSED DECISION
The ALJ held that UC-AFT's allegations of unilateral change and transfer of
bargaining-unit work were barred by HEERA's six-month statute of limitations. Relying on
Long Beach Community College District (2009) PERB Decision No. 2002 (Long Beach), he
held that UC-AFT carried the burden of proving an exception to the statute of limitations
(equitable tolling of the limitations period or continuing violation), and that the Union had not
met its burden of proving either exception." The ALJ therefore dismissed these allegations as
untimely. UC-AFT filed its unfair practice charge on May 13, 2010, four months after it
withdrew its request for arbitration.
Based on his reading of the parties' MOU, Article 	and the CAM," the ALJ
concluded that the three-step grievance process contained in Article 32 of the MOU was
appropriately utilized by the Union in its attempt to informally resolve the grievance over
"Noting that PERB has applied the doctrine of tolling under HEERA when the parties'
dispute resolution procedure ends in binding arbitration, (Trustees of the California State
University (San Jose) (2009) PERB Decision No. 2032-H (Trustees)), the ALJ ruled that
tolling under HEERA should apply even if the parties are utilizing a non-binding dispute
resolution procedure, citing to Long Beach, supra, PERB Decision No. 2002.
" The CAM adds the following footnote to Arti
Claims of improper classification should initially be brought to
the University's attention through informal discussions or the
grievance process. If the parties cannot resolve the issue(s), the
AFT's mechanism to challenge the University's use of a non-NSF
titles [sic] to teach is through PERB.
15	15
provided the names
of
the adjuncts appointed for that academic. year, but did not provide
copies
of
appointment letters
or
a list
of
non-teaching duties assigned to adjuncts, relying again
on the APM. UC indicated that all adjuncts were expected to meet the research and creative
work criteria listed in the APM 280-10-b. UC also asserted that it had no duty to provide the
information sought
by
UC-AFT, because it did not represent adjuncts.
PROPOSED DECISION
The ALJ held that UC-AFT's allegations
of
unilateral change and transfer
of
bargaining-unit work were barred
by
HEERA's six-month statute oflimitations. Relying on
Long Beach Community College District (2009) PERB Decision No. 2002 (Long Beach), he
held that UC-AFT carried the burden
of
proving an exception to the statute
of
limitations
( equitable tolling
of
the limitations period or continuing violation), and that the Union had not
met its burden
of
proving either exception.
10
The ALJ therefore dismissed these allegations as
untimely. UC-AFT filed its unfair practice charge on May 13, 2010, four months after it
withdrew its request for arbitration.
Based on his reading
of
the parties' MOU, Article 	and the CAM,
11
the ALJ	5.E
concluded that the three-step grievance process contained in Artide 32
of
the MOU was
appropriately utilized by the Union in its attempt to informally resolve the grievance over
10
Noting that PERB has applied the doctrine
of
tolling under HEERA when the parties'
dispute resolution procedure ends in binding arbitration, (Trustees
of
the California State
University (San Jose) (2009) PERB Decision No. 2032-H (Trustees)), the ALJ ruled that
tolling under HEERA should apply even
if
the parties are utilizing a non-binding dispute
resolution procedure, citing to Long Beach, supra, PERB Decision No. 2002.
.
11
The CAM adds the following footnote to Article	cle 5.B:
Claims of improper classification should initially be brought to
the University's attention through informal discussions or the
grievance process. If the parties cannot resolve the issue(s), the
AFT's mechanism to challenge the University's use of a non-NSF
titles [sic] to teach is through PERB.

incorrect assignment of adjunct professors. However, once the grievance steps were exhausted
and the dispute became ripe for arbitration, this particular dispute was no longer covered by the
MOU, the ALJ concluded. Article 33 provides for binding arbitration and did not apply to
disputes over incorrect appointments, because Article 33 is no longer the "grievance process"
in the ALJ's view. Because Article 5. E diverts to PERB claims of incorrect appointments to
non-unit titles, the tolling period ends when the grievance moved to arbitration, reasoned the
ALJ. He found nothing in the record showing when the case was moved to arbitration, and
deemed that because the Union has the burden of establishing facts that would support
equitable tolling but failed to do so, the charge was untimely.
With respect to the Union's information requests, the ALJ concluded that the unfair
practice charge regarding UC's refusal to provide UC-AFT with the list of the non-teaching
duties for adjuncts at UCLA Law School was timely and that UC had violated HEERA by
refusing to provide this information."
POSITIONS OF THE PARTIES
UC-AFT excepted to the ALJ's dismissal of the unilateral change and removal of
bargaining work allegations as untimely. It asserts that the ALJ misapplied PERB's equitable
tolling doctrine by adding a new requirement to the first prong of the equitable tolling test, i.e.,
that the negotiated agreement must be written to cover the particular dispute in question.
UC-AFT argues that the limitations period was tolled for the entire time the grievance was
pending, including when it was awaiting arbitration, because the parties were utilizing the
dispute resolution procedure in the MOU and had agreed to arbitrate the dispute under the
MOU.
12 UC did not except to this finding and conclusion.
16	16
incorrect assignment of adjunct professors. However, once the grievance steps were exhausted
and the dispute became ripe for arbitration, this particular dispute was no longer covered by the
MOU, the ALJ concluded. Article 33 provides for binding arbitration and did not apply to
disputes over incorrect appointments, because Article 33 is no longer the "grievance process"
in the ALJ's view. Because Article 5. E diverts to PERB claims of incorrect appointments to
non-unit titles, the tolling period ends when the grievance moved to arbitration, reasoned the
ALJ. He found nothing in the record showing when the case was moved to arbitration, and
deemed that because the Union has the burden of establishing facts that would support
equitable tolling but failed to do so, the charge was untimely.
With respect to the Union's information requests, the ALJ concluded that the unfair
practice charge regarding UC's refusal to provide UC-AFT with the list of the non-teaching
duties for adjuncts at UCLA Law School was timely and that UC had violated HEERA by
refusing to provide this information. 12
POSITIONS OF THE PARTIES
UC-AFT excepted to the ALJ's dismissal of the unilateral change and removal of
bargaining work allegations as untimely. It asserts that the ALJ misapplied PERB's equitable
tolling doctrine by adding a new requirement to the first prong of the equitable tolling test, i.e.,
that the negotiated agreement must be written to cover the particular dispute in question.
UC-AFT argues that the limitations period was tolled for the entire time the grievance was
pending, including when it was awaiting arbitration, because the parties were utilizing the
dispute resolution procedure in the MOU and had agreed to arbitrate the dispute under the
MOU.
12 UC did not except to this finding and conclusion.

UC-AFT also urges that the doctrine of continuing violation applies in this case, so that
each time UC misclassified a non-Senate faculty as an adjunct instead of a lecturer, the statute
of limitations began anew.
UC responds that the ALJ correctly applied PERB's equitable tolling doctrine in
concluding the complaint should not be tolled. Since the terms of the parties' CBA did not
provide for arbitration of disputes over misclassification, instead sending those disputes to
PERB, UC asserts that the ALJ correctly concluded that equitable tolling did not apply to these
facts. UC also urges the Board to support the ALJ's conclusion that UC-AFT had not met its
burden to show that the hiring and classification of each new adjunct professor constituted a
continuing violation.
Because we decide this case on the merits, we summarize here the parties' arguments to
the ALJ.
UC-AFT contends that UC unilaterally changed the terms of the Switkes Letter by not
assigning adjuncts any responsibility for research or service. According to the Union, research
and service requirements are what distinguishes adjuncts from lecturers, and the lack of those
requirements for adjuncts shows that UC has repudiated the terms of the Switkes Letter.
Adjuncts should not be hired to perform lecturer duties, and when the adjuncts perform only
teaching and no research or service, they are performing the same duties as lecturers, according
to UC-AFT. UC has made adjunct appointments based on prestige, instead of duties to be
performed for the University, a consideration that UC-AFT was not notified of and not given
an opportunity to negotiate over. Thus, UC has unilaterally changed agreed-upon terms and
conditions of employment in violation of HEERA section 3571(c), according to UC-AFT.
17	17
UC-AFT also urges that the doctrine
of
continuing violation applies in this case, so that
each time UC misclassified a non-Senate faculty as an adjunct instead
of
a lecturer, the statute
of
limitations began anew.
UC responds that the ALJ correctly applied PERB's equitable tolling doctrine in
concluding the complaint should not be tolled. Since the terms
of
the parties' CBA did not
provide for arbitration
of
disputes over misclassification, instead sending those disputes to
PERB, UC asserts that the ALJ correctly concluded that equitable tolling did not apply to these
facts. UC also urges the Board to support the ALJ's conclusion that UC-AFT had not met its
burden to show that the hiring and classification
of
each new adjunct professor constituted a
continuing violation.
Because we decide this case on the merits, we summarize here the parties' arguments to
theALJ.
UC-AFT contends that UC unilaterally changed the terms
of
the Switkes Letter by not
assigning adjuncts any responsibility for research or service. According to the Union, research
and service requirements are what distinguishes adjuncts from lecturers, and the lack
of
those
requirements for adjuncts shows that UC has repudiated the terms
of
the Switkes Letter.
Adjuncts should not be hired to perform lecturer duties, and when the adjuncts perform only
teaching and no research or service, they are performing the same duties as lecturers, according
to UC-AFT. UC has made adjunct appointments based on prestige, instead
of
duties to be
performed for the University, a consideration that UC-AFT was not notified
of
and not given
an opportunity to negotiate over. Thus, UC has unilaterally changed agreed-upon tenns and
conditions
of
employment in violation
of
HEERA section 3 571 (c), according to UC-AFT.

UC asserts that there has been no change in its appointment practices at the Law
School. Nothing changed in the hiring procedure at the Law School after the Switkes Letter
was negotiated, as it simply ratified the practices UC already used, according to UC.
The APM and the Switkes Letter, according to UC, both permit the appointment of
adjuncts if they are of "appropriate distinction." If they are of such distinction, they have
limited responsibility for research and University and public service. Moreover, according to
UC, the research and service the adjuncts perform and have performed as part of their
distinguished careers, satisfy the research and service requirements prescribed in the APM and
Switkes Letter. Any interference with UC's right to appoint individuals to the adjunct series
interferes with academic freedom provided to the University and faculty by the First
Amendment, according to UC. It asserts, "the Regents' appointment of Adjuncts, and not
unduly constraining Adjuncts with regard to how they teach, research, or draft creative work,
or perform University or public service is proper and lawful, and cannot be disturbed in this
proceeding." (UC Post-Hearing Brief to ALJ, p. 2.)
UC further asserts that PERB does not have jurisdiction over this dispute because it is
essentially an allegation that the MOU has been breached. Therefore, HEERA section 3563.2,
which denies PERB authority to enforce agreements between the parties, disables PERB from
adjudicationg this dispute, especially in the absence of an unfair practice.
Finally, UC complains of the fact that the ALJ granted UC-AFT's motion to amend the
complaint to move the date of the alleged violation from January 2010 to September 2008.
This motion was granted after UC-AFT presented its case in chief, and UC claims that it was
prejudiced by the ruling because September 2008 was beyond the statute of limitations for a
charge filed in May 2010.
18	18
UC asserts that there has been no change in its appointment practices at the Law
School. Nothing changed in the hiring procedure at the Law School after the Switkes Letter
was negotiated, as it simply ratified the practices UC already used, according to UC.
The APM and the Switkes Letter, according to UC, both pennit the appointment
of
adjuncts
if
they are
of
"appropriate distinction."
If
they are
of
such distinction, they have
limited responsibility for research and University and public service. Moreover, according to
UC, the research and service the adjuncts perform and have performed as part
of
their
distinguished careers, satisfy the research and service requirements prescribed in the APM and
Switkes Letter. Any interference with UC's right to appoint individuals to the adjunct series
interferes with academic freedom provided to the University and faculty
by
the First
Amendment, according to UC. It asserts, "the Regents' appointment
of
Adjuncts, and not
unduly constraining Adjuncts with regard to how they teach, research, or draft creative work,
or perform University or public service is proper and lawful, and cannot be disturbed in this
proceeding." (UC Post-Hearing Brief to ALJ, p. 2.)
_
UC further asserts that PERB docs not have jurisdiction over this dispute because it is
essentially an allegation that the MOU has been breached. Therefore, HEERA section 3563.2,
which denies PERB authority to enforce agreements between the parties, disables PERB from
adjudicating this .dispute, especially in the absence
of
an unfair practice.
Finally, UC complains
of
the fact that the ALJ granted UC-AFT's motion to amend the
complaint to move the date
of
the alleged violation from January 2010 to September 2008.
This motion was granted after UC-AFT presented its case in chief, and UC claims that it was
prejudiced by the ruling because September 2008 was beyond the statute oflimitations for a
charge filed in May 2010.

DISCUSSION
Timeliness of the Charge
PERB has applied the doctrine of equitable tolling under both the Educational
Employment Relations Act (EERA) and HEERA under certain circumstances. In Long Beach,
supra, PERB Decision No. 2002, the Board held that EERA's statute of limitations would be
tolled to permit the parties to utilize a non-binding dispute resolution procedure, explaining:
The health and stability of a collective bargaining relationship is
better maintained by allowing the parties to resolve a dispute through
negotiated, albeit non-binding, dispute resolution procedures than
through an adversarial proceeding before PERB. Accordingly,
equitable tolling can easily be reconciled with EERA's fundamental
purpose of promoting harmonious labor relations.
(Long Beach, supra, PERB Decision No. 2002, p. 14.)
Thus, the statute of limitations will be tolled when all of the following factors are present:
(1) the procedure is contained in a written agreement negotiated by the parties;
(2) the procedure is being used to resolve the same dispute that is the subject of the
unfair practice charge;
(3) the charging party reasonably and in good faith pursues the procedure; and
(4) tolling does not frustrate the purpose of the statutory limitation period by causing
surprise or prejudice to the respondent.
(Long Beach, supra, PERB Decision No. 2002, p. 15.)
In Trustees, supra, PERB Decision No. 2032-H, PERB adopted the same test for tolling
under HEERA "when the negotiated dispute resolution procedure ends in binding
arbitration." We note that in Trustees, PERB specifically did not make a determination as to
whether there would be tolling under HEERA "where a negotiated dispute resolution
Unlike in EERA, there is no statutorily-prescribed tolling for negotiated binding
dispute resolution procedures in HEERA. (Compare EERA section 3541.5(a)(2) with HEERA
section 3563.2.)
19
DISCUSSION
Timeliness
of
the Charge
PERB has applied the doctrine
of
equitable tolling under both the Educational
Employment Relations Act (EERA) and HEERA under certain circumstances. In Long Beach,
supra, PERB Decision No. 2002, the Board held that EERA's statute oflimitations would be
tolled to pennit the parties to utilize a non-binding dispute resolution procedure, explaining:
The health and stability
of
a collective bargaining relationship is
better maintained by allowing the parties to resolve a dispute through
negotiated, albeit non-binding, dispute resolution procedures than
through an adversarial proceeding before PERB. Accordingly,
equitable tolling can easily be reconciled with EERA's fundamental
purpose
of
promoting harmonious labor relations.
(Long Beach, supra, PERB Decision No. 2002, p. 14.)
Thus, the statute oflimitations will be tolled when all
of
the following factors are prest'lnt:
(1) the procedure is contained in a written agreement negotiated
by
the parties;
(2) the procedure is being used to resolve the same dispute that is the subject
of
the
unfair practice charge;
(3) the charging party reasonably and in good faith pur'sues the procedure; and
(4) tolling does not frustrate the purpose
of
the statutory limitation period by causing
surprise or prejudice to the respondent.
(Long Beach, supra, PERB Decision No. 2002, p. 15.)
In Trustees, supra, PERB Decision No. 2032-H, PERB adopted the same test for tolling
under HEERA "when the negotiated dispute resolution procedure ends in binding
arbitration."
13
We note that in Trustees, PERB specifically did not make a determination as to
whether there would be tolling under HEERA "where a negotiated dispute resolution
13
Unlike in BERA, there is no statutorily-prescribed tolling for negotiated binding
dispute resolution procedures in HEERA. (Compare EERA section 3541.5(a)(2) with HEERA
section 3563.2.)
19

procedure does not end in binding arbitration." However, we affirm the ALJ's conclusion that
for the legal and policy reasons fully discussed in Long Beach, supra, PERB Decision
No. 2002 and Trustees, tolling under HEERA should apply even if the parties are utilizing a
non-binding dispute resolution procedure.
Long Beach, supra, PERB Decision No. 2002 also held that the charging party has the
burden of proving the elements of equitable tolling. This portion of Long Beach was overruled
by Brown, supra, PERB Decision No. 2359, wherein the Board held that after the issuance of a
complaint by the Office of the General Counsel, assertion of the statute of limitations is an
affirmative defense and that the respondent has the burden of proving the unfair practice
charge was untimely. Thus, "in satisfying its burden of proof on the timeliness issue where a
grievance has been filed, the respondent must prove that the charge was filed outside the six-
month limitations period and that the tolling exception does not apply." (Brown, p. 3.)
Therefore, we overturn the ALJ's ruling that placed the burden of proving the element
of equitable tolling on UC-AFT. Under Brown, supra, PERB Decision No. 2359, the burden
of proving that the complaint was untimely and that an exception to the statute of limitations
does not apply rests with UC. In Brown, the Board ordered the case remanded to allow the
respondent to present evidence in support of its affirmative defense, because the record was
devoid of facts that would enable the Board to determine whether equitable tolling should
apply in that case.
However, the factual differences between Brown, supra, PERB Decision No. 2359 and
the current matter compel a different course of action. In Brown, "The determination of the
point in time at which the parties exhausted the grievance machinery is the decisive issue in
this case." (Brown, p. 11.) Since that "point in time" had not been established in the record in
Brown, the Board remanded the case back to the ALJ to receive evidence on this key question.
20	20
procedure does not end in binding arbitration." However, we affirm the ALJ's conclusion that
for the legal and policy reasons fully discussed in Long Beach, supra, PERB Decision
No. 2002 and Trustees, tolling under HEERA should apply even
if
the parties are utilizing a
non-binding dispute resolution procedure.
Long Beach, supra, PBRB Decision No. 2002 also held that the charging party has the
burden
of
proving the elements
of
equitable tolling. This portion
of
Long Beach was overruled
by Brown, supra, PERB Decision No. 2359, wherein the Board held that after the issuance
of
a
complaint by the Office
of
the General Counsel, assertion
of
the statute
of
limitations is an
affirmative defense and that the respondent has the burden
of
proving the unfair practice
charge was untimely. Thus, "in satisfying its burden
of
proof on the timeliness issue where a
grievance has been filed, the respondent must prove that the charge was filed outside the six-
month limitations period and that the tolling exception does not apply." (Brown, p. 3.)
Therefore, we overturn the ALJ' s ruling that placed the burden
of
proving the element
of
equitable tolling on UC-AFT. Under Brown, supra, PERB Decision No. 2359, the burden
of
proving that the complaint was untimely and that an exception to the statute
of
limitations
does not apply rests with UC. In Brown, the Board ordered the case remanded to allow the
respondent to present evidence in support
of
its affirmative defense, because the record was
devoid
of
facts that would enable the Board to determine whether equitable tolling should
apply in that case.
However, the factual differences between Brown, supra, PERB Decision No. 2359 and
the current matter compel a different course
of
action. In Brown, "The determination
of
the
point in time at which the parties exhausted the grievance machinery is the decisive issue in
this case." (Brown, p. 11.) Since that "point in time" had not been established in the record in
Brown, the Board remanded the case back to the ALJ to receive evidence on this key question.

In contrast to Brown, supra, PERB Decision No. 2359, the record in the present case
indicates, without dispute, the point in time at which the parties exhausted the grievance/
arbitration machinery-on January 15, 2010, when UC-AFT withdrew its grievance from
arbitration. Left undetermined by the ALJ was the date the grievance was advanced to the
Article 33 arbitration level. But the UC-AFT Executive Director, Cortez, testified that by
August 4, 2009, UC-AFT had already appealed the grievance to arbitration. (R.T., vol. III,
81-82.)
However, the exact date on which the parties moved the grievance to the arbitration
procedure is irrelevant to determining the equitable tolling period. Regardless of whether the
dispute was covered under the Article 33 arbitration provision, UC never objected to
arbitration of the dispute or challenged the subject-matter arbitrability of the grievance. From
this we can conclude that from March 9, 2009, when the grievance was filed, until January 15,
2010, when the Union withdrew the grievance from arbitration, the parties agreed to utilize the
MOU dispute resolution procedure, including arbitration, to resolve UC-AFT's claim that UC
had misclassified adjunct professors at the Law School.
Under these circumstances, we conclude that equitable tolling applies and the statute of
limitations is suspended from March 9, 2009 until January 15, 2010. UC acquiesced in using
the MOU, including its arbitration provisions, to resolve this dispute.
Applying the Long Beach elements of equitable tolling, we find, contrary to the ALJ,
that they have been met in this case. First, the procedure is contained in the parties' MOU and
further elucidated by the CAM, a jointly prepared guidance which states that claims of
improper classification should be brought to the University's attention through the grievance
process. We disagree with the ALJ's overly formalistic finding that because the arbitration
procedure was in a different article in the MOU, equitable tolling ended when the grievance
21	21
In contrast to Brown, supra, PERB Decision No. 2359, the record in the present case
indicates, without dispute, the point in time at which the parties exhausted the grievance/
arbitration
machinery-on
January 15, 2010, when UC-AFT withdrew its grievance from
arbitration. Left undetermined
by
the ALJ was the date the grievance was advanced to the
Article 33 arbitration level. But the UC-AFT Executive Director, Cortez, testified that
by
August 4, 2009, UC-AFT had already appealed the grievance to arbitration. (R.T., vol. III,
81-82.)
However, the exact date on which the parties moved the grievance to the arbitration
procedure is irrelevant to determining the equitable tolling period. Regardless
of
whether the
dispute was covered under the Article 33 arbitration provision, UC never objected to
arbitration
of
the dispute or challenged the subject-matter arbitrability
of
the grievance. From
this we can conclude that from March 9, 2009, when the grievance was filed, until January 15,
2010, when the Union withdrew the grievance from arbitration, the parties agreed to utilize the
MOU dispute resolution procedure, including arbitration, to resolve UC-AFT's claim that UC
had misclassified adjunct professors at the Law School.
Under these circumstances, we conclude that equitable tolling applies and the statute
of
limitations is suspended from March 9, 2009 until January 15, 2010. UC acquiesced in using
the MOU, including its arbitration provisions, to resolve this dispute.
Applying the Long Beach elements
of
equitable tolling, we find, contrary to the ALJ,
that they have been met in this case. First, the procedure is contained in the parties' MOU and
further elucidated by the CAM, a jointly prepared guidance which states that claims
of
improper classification should be brought to the University's attention through the grievance
process. We disagree with the ALJ's overly fonnalistic finding that because the arbitration
procedure was in a different article in the MOU, equitable tolling ended when the grievance

was moved to arbitration. Arbitration is the end stage of the grievance continuum, regardless of
where it appears in the MOU. This is especially true in this case, where the University raised
no objections to the substantive arbitrability of the dispute. Regardless of the arbitrability of
misclassification disputes, the parties in this case initially agreed to arbitrate UC-AFT's claim
regarding misclassification of adjuncts. Nothing prevents parties to collective bargaining
agreements from voluntarily agreeing to arbitrate matters that may otherwise not be subject to
an arbitration clause.
Second, the parties used the grievance procedure to resolve the same dispute that is the
subject of the unfair practice charge, i.c., the claim that UC was misclassifying part-time
instructors as adjuncts when they were performing lecturer duties.
The third element, good faith pursuit of the procedure by the charging party, is evident
from the Union's filing of the grievance almost as soon as it received some documentary
indication that the Law School was appointing what the Union considered to be an abnormally
large number of adjuncts. UC-AFT also diligently pursued its requests for information it
believed was necessary to prevail in the grievance, and continued to move the grievance to the
next steps when it believed UC was not responding quickly enough.
Tolling would not frustrate the purpose of the statute of limitations because UC could
not be surprised or prejudiced by UC-AFT's pursuit of the unfair practice charge. UC was on
notice since March, 2009, when the grievance was initially filed, that UC-AFT believed
adjuncts had been misclassified. Between March 2009 and January 2010, UC-AFT did nothing
to lull UC into a belief that the matter had been resolved. The Union moved the grievance
through its steps, culminating in its demand that the matter be submitted to arbitration in early
August 2009."* When UC-AFT withdrew its arbitration request in January 2010, it informed
" UC did not object to the grievance being moved to arbitration.
22	22
was moved to arbitration. Arbitration is the end stage
of
the grievance continuum, regardless
of
where it appears in the MOU. This is especially true in this case, where the University raised
no objections to the substantive arbitrability
of
the dispute. Regardless
of
the arbitrability
of
misclassification disputes, the parties in this case initially agreed to arbitrate UC-AFT's claim
regarding misclassification
of
adjuncts. Nothing prevents parties to collective bargaining
agreements from voluntarily agreeing to arbitrate matters that may otherwise not be subject to
an arbitration clause.
Second, the parties used the grievance procedure to resolve the same dispute that is the
subject
of
the unfair practice charge, i.e., the claim that UC was misclassifying part-time
instructors as adjuncts when they were performing lecturer duties.
The third element, good faith pursuit
of
the procedure by the charging party, is evident
from the Union's filing
of
the grievance almost as soon as it received some documentary
indication that the Law School was appointing what the Union considered to be an abnormally
large number
of
adjuncts. UC-AFT also diligently pursued its requests for information it
believed was necessary to prevail in the grievance, and continued to move the grievance to the
next steps when it believed UC was not responding quickly enough.
Tolling would not frustrate the purpose
of
the statute oflimitations because UC could
not be surprised or prejudiced by UC-AFT's pursuit
of
the unfair practice charge. UC was on
notice since March, 2009, when the grievance was initially filed, that UC-AFT believed
adjuncts had been misclassified. Between March 2009 and January 2010, UC-AFT did nothing
to lull UC into a belief that the matter had been resolved. The Union moved the grievance
through its steps, culminating in its demand that the matter be submitted to arbitration in early
August 2009.
14
When UC-AFT withdrew its arbitration request in January 2010, it informed
14
UC did not object to the grievance being moved to arbitration.

UC that it intended to file an unfair practice charge. For these reasons, we conclude that
applying the doctrine of equitable tolling in this case would not cause surprise to UC. Neither
would UC be prejudiced by our ruling, because it was fully aware of the Union's claims
throughout the time between the filing of the grievance and the filing of this unfair practice
charge." Under these circumstances, evidence is not likely to be lost or destroyed, and UC
was not likely to change its practices in detrimental reliance on any conduct by UC-AFT.
We hold that the equitable tolling period extended from March 9, 2009, the date
UC-AFT filed its grievance until January 15, 2010, when UC-AFT withdrew the grievance
from the contractual arbitration procedure (for a total of slightly more than 10 months). When
we consider the period of time between UC-AFT's February 26, 2009, discovery of the unfair
practice and the May 13, 2010 filing of the charge (a total of 14 1/2 months), and subtract the
10-month tolling period, we find a 4 1/2 month net period of time, well within the six-month
statute of limitations period. 16
In addition, we conclude that the University is also equitably estopped from asserting
the statute of limitations defense in this case. See San Diegueto Union High School District
(1982) PERB Decision No. 194, p. 15:
The equitable doctrine of estoppel has been applied to deprive a
defendant of the statute of limitations defense because of his own
' UC objected to the ALJ's granting the Union's motion to amend the complaint to
encompass UC's actions from six months prior to the filing of the grievance, i.e., to September
2008. Because we conclude that the statute of limitations was tolled between the time the
grievance was filed and when the UC-AFT withdrew its request for arbitration, it is correct to
consider actions that occurred within six months of the grievance filing. UC was not
prejudiced by this ruling because it had ample notice of the Union's claims from March 2009
onwards.
"We need not consider whether the nine-day period between UC-AFT's withdrawal of
the grievance and parties' agreed-upon delay of approximately twelve days before UC-UFT
filed its PERB charge should be included in the equitable tolling period, since the charge is
timely even without including that twelve-day period.
23	23
UC that it intended to file an unfair practice charge. For these reasons, we conclude that
applying the doctrine
of
equitable tolling in this case would not cause surprise to UC. Neither
would UC
be
prejudiced
by
our ruling, because it was fully aware
of
the Union's claims
throughout the time between the filing
of
the grievance and the filing
of
this unfair practice
charge.
15
Under these circumstances, evidence is not likely to
be
lost or destroyed, and UC
was not likely to change its practices in detrimental reliance on any conduct
by
UC-AFT.
We
hold that the equitable tolling period extended from March 9, 2009, the date
UC-AFT filed its grievance until January 15, 2010, when UC-AFT withdrew the grievance
from the contractual arbitration procedure (for a total
of
slightly more than 10 months). When
we consider the period
of
time between UC-AFT's February 26, 2009, discovery
of
the unfair
practice and the May 13, 2010 filing
of
the charge (a total
of
14 ½ months), and subtract the
10-month tolling period, we find a 4 ½ month net period
of
time, well within the six-month
statute oflimitations period.
16
In addition, we conclude that the University is also equitably estopped from asserting
the statute oflimitations defense in this case. See San Dieguito Union High School District
(1982) PERB Decision No. 194, p. 15:
The equitable doctrine
of
estoppel has been applied to deprive a
defendant
of
the statute oflimitations defense because
of
his own
15
UC objected to the ALJ's granting the Union's motion to amend the complaint to
encompass UC's actions from six months prior to the filing
of
the grievance, i.e., to September
2008. Because we conclude that the statute
of
limitations was tolled between the time the
grievance was filed and when the UC-AFT withdrew its request for arbitration,
itis
correct to
consider actions that occurred within six months
of
the grievance filing. UC was not
prejudiced by this ruling because it had ample notice
of
the Union's claims from March 2009
onwards.
16 We need not consider whether the nine-day period between UC-AFT's withdrawal
of
the grievance and parties' agreed-upon delay
of
approximately twelve days before UC-UFT
filed ifs PERB charge should be included in the equitable tolling period, since the charge is
timely even without including that twelve-day period.

objectionable conduct. However, estoppel is applied in situations
where the claimant has relied, to his/her detriment, on the
representations or conduct of the other party.
UC's acquiescence to UC-AFT's pursuit of the grievance through the arbitration procedure
induced UC-AFT to rely to its own detriment on UC's implicit representation that arbitration
was the proper avenue for resolving the underlying dispute. UC may not now claim that UC-
AFT's utilization of the incorrect grievance resolution procedure deprives it of the protections
of equitable tolling. (See also, People v. Accredited Surety and Casualty Company, Inc. (2013)
220 Cal.App.4th 1137, 1150 ["There is substantial authority for the proposition that a party
who has invoked or consented to the exercise of jurisdiction beyond the court's authority may
be precluded from challenging it afterward, even on a direct attack by appeal. [Citation
omitted.] Failure to object may be sufficient to indicate consent"]; Bel Mar Estates v.
California Coastal Com. (1981) 115 Cal.App.3d 936, 940 ["A party cannot sit idly by and
permit action to be taken and later say that it had not consented"].)
Because we hold as a matter of law that UC is estopped from asserting a statute of
limitations defense in this circumstance, and because the facts necessary to assess the elements
of equitable tolling were in the record, we need not remand the matter to the Division of
Administrative Law to re-open the record. Neither do we need to address UC-AFT's claim
that its filing is excused under the continuing violation doctrine, as we conclude the charge was
timely filed for the reasons discussed.
Transfer of Bargaining Unit Work
The complaint alleged that UC impermissibly transferred unit work. To prevail on a
claim of unilateral transfer of unit work where the duties overlap between unit and non-unit
employees, the charging party must show that duties were transferred from unit employees to
others. As the Board said in Eureka City School District (1985) PERB Decision No. 481:
24	24
objectionable conduct. However, estoppel is applied in situations
where the claimant has relied, to his/her detriment, on the
representations or conduct
of
the other party.
UC's
acquiescence to UC-AFT's pursuit
of
the grievance through the arbitration procedure
induced UC-AFT to rely to its own detriment
on
UC's
implicit representation that arbitration
was the proper avenue for resolving the underlying dispute. UC may not now claim that UC-
AFT' s utilization
of
the incorrect grievance resolution procedure deprives it
of
the protections
of
equitable tolling. (See also, People
v.
Accredited Surety and Casualty Company, Inc. (2013)
220 Cal.App.4th 1137, 1150 ["There is substantial authority for the proposition that a party
who has invoked or consented to the exercise
of
jurisdiction beyond the court's authority may
be precluded from challenging it afterward, even on a direct attack
by
appeal. [Citation
omitted.] Failure to object may be sufficient to indicate consent"]; Bel Mar Estates
v.
California Coastal Com. (1981) 115 Cal.App.3d 936, 940 ["A party cannot sit idly by and
permit action to be taken and later say that it had not consented"].)
Because we hold as a matter
of
law that UC is estopped from asserting a statute
of
limitations defense in this circumstance, and because the facts necessary to assess the elements
of
equitable tolling were in the record, we need not remand the matter to the Division
of
Administrative Law to re-open the record. Neither do we need to address UC-AFT's claim
that its filing is excused under the continuing violation doctrine, as we conclude the charge was
timely filed for the reasons discussed.
Transfer
of
Bargaining Unit Work
The complaint alleged that UC impermissibly transferred unit work. To prevail on a
claim of unilateral transfer
of
unit work where the duties overlap between unit and non-unit
employees, the charging party must show that duties were transferred from unit employees to
others. As the Board said in Eureka City School District (1985) PERB Decision No. 481:

In our view, in order to prevail on a unilateral transfer of work
theory, the charging party must establish, as a threshold matter,
hat duties were, in fact, transferred out of the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity of work which nonunit employees perform and
decreasing the quantity of work which unit employees perform.
(Id. at p. 15; emphasis in original.)
(See also Calistoga Joint Unified School District (1989) PERB Decision No. 744 [unilateral
transfer found where duties that were performed exclusively by classified employee (noon duty
supervision) were eliminated and given to certificated employee]; Desert Sands Unified School
District (2010) PERB Decision No. 2092 [employer obligated to negotiate transfer of duties
that overlapped between positions when it laid off all of the employees in one of the
classifications, thereby satisfying the first part of Eureka, supra, PERB Decision No. 481-
unit employees ceased performing duties they had previously performed]; City of Escondido
(2013) PERB Decision No. 2311; City of Sacramento (2013) PERB Decision No. 2351.)
In the present matter, the bargaining unit work in question is teaching, which is
assigned to both bargaining unit lecturers and non-bargaining unit adjuncts. Lecturers and
adjuncts have "traditionally had overlapping duties." The record fails to show that the
lecturers at the Law School were laid off or had their hours reduced. Thus, the first part of the
Eureka test 	nit employees cease performing duties that they previously performed" - has
not been satisfied. At the most, UC has "merely . . . increase[ed] the quantity of work which
[adjuncts] perform and decrease[ed] the quantity of work which [lecturers] perform." (Eureka,
supra, PERB Decision No. 481, p. 15.) The Union has not proven that the adjuncts are now
performing duties that were previously exclusively performed by unit employees. On this
25	25
In our view, in order to prevail on a unilateral transfer
of
work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out
of
the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively
by
unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely
by
increasing the
quantity
of
work which nonunit employees perform and
decreasing the quantity
of
work which unit employees perfonn.
(Id. at p. 15; emphasis in original.)
(See also Calistoga Joint Unified School District (1989) PERB Decision No. 744 [unilateral
transfer found where duties that were performed exclusively by classified employee (noon duty
supervision) were eliminated and given to certificated employee]; Desert Sands Unified School
District (2010) PERB Decision No. 2092 [employer obligated to negotiate transfer
of
duties
that overlapped between positions when it laid
off
all
of
the employees in one
of
the
classifications, thereby satisfying the first part
of
Eureka, supra, PERB Decision No.
481-
unit employees ceased perfonning duties they had previously perfonned]; City
of
Escondido
(2013) PERB Decision No. 2311; City
of
Sacramento (2013) PERB Decision No. 2351.)
In the present matter, the bargaining unit work in question is teaching, which is
assigned to both bargaining unit lecturers and non-bargaining unit adjuncts. Lecturers and
adjuncts have ''traditionally had overlapping duties." The record fails to show that the
lecturers at the Law School were laid off or had their hours reduced. Thus, the first part
of
the
Eureka test 	"unit employees cease performing duties that they previously performed" - 	has	- "u
not been satisfied. At the most, UC has "merely
...
increase[ed] the quantity
of
work which
[adjuncts] perfonn and decrease[ed] the quantity
of
work which [lecturers] perform." (Eureka,
supra, PERB Decision No. 481, p. 15.) The Union has not proven that the adjuncts are now
performing duties that were previously exclusively performed by unit employees. On this

basis and under our precedents, we dismiss the claim that there has been a unilateral transfer of
unit work.
This conclusion, however, does not address whether UC unilaterally repudiated an
agreement with UC-AFT concerning the classification of bargaining unit positions. We turn
now to that question.
Unilateral Change in Negotiated Policy
The complaint alleges that by classifying part-time instructors as adjuncts instead of
lecturers when the adjuncts performed the same job as lecturers, UC repudiated the terms of
the Switkes Letter, thereby unilaterally changing negotiable terms and conditions of
employment.
HEERA and other statutes over which PERB has jurisdiction are designed to foster
bilateral good faith negotiations. Such a policy is undermined when one party to an agreement
changes or modifies its terms without the consent of the other party. Therefore, a unilateral
change in established policy which represents a conscious or apparent reversal of a previous
understanding, whether the latter is embodied in a contract or evident from the parties' past
practice, runs afoul of the duty to bargain in good faith. (Grant Joint Union High School
District (1982) PERB Decision No. 196, p. 8 (Grant); Standard School District (2005) PERB
Decision No. 1775, ALJ Dec., p. 16; Regents of the University of California (2012) PERB
Decision No. 2300-H, pp. 19-20.) 17
As the Board held in Fairfield-Suisun Unified School District (2012) PERB Decision
No. 2262, p. 9:
To prove up a unilateral change, the charging party must establish
that: (1) the employer took action to change policy; (2) the change
in policy concerns a matter within the scope of representation;
3) the action was taken without giving the exclusive representative
notice or opportunity to bargain over the change; (4) the action had a
26	26
basis and under our precedents, we dismiss the claim that there has been a unilateral transfer of
unit work.
This conclusion, however, does not address whether UC unilaterally repudiated an
agreement with UC-AFT concerning the classification of bargaining unit positions. We tum
now to that question.
Unilateral Change in Negotiated Policy
The complaint alleges that by classifying part-time instructors as adjuncts instead of
lecturers when the adjuncts performed the same job as lecturers, UC repudiated the terms of
the Switkes Letter, thereby unilaterally changing negotiable terms and conditions of
employment.
HEERA and other statutes over which PERB has jurisdiction are designed to foster
bilateral good faith negotiations. Such a policy is undermined when one party to an agreement
changes or modifies its terms without the consent of the other party. Therefore, a unilateral
change in established policy which represents a conscious or apparent reversal of a previous
understanding, whether the latter is embodied in a contract or evident from the parties' past
practice, runs afoul of the duty to bargain in good faith. 	(Grant Joint Union High School
District (1982) PERB Decision No. 196, p. 8 (Grant); Standard School District (2005) PERB
Decision No. 1775, ALJ Dec., p. 16; Regents of the University of California (2012) PERB
Decision No. 2300-H, pp. 19-20.) 17
17 As the Board held in Fairfield-Suisun Unified School District (2012) PERB Decision
No. 2262, p. 9:
To prove up a unilateral change, the charging party must establish
that: (1) the employer took action to change policy; (2) the change
in policy concerns a matter within the scope of representation;
(3) the action was taken without giving the exclusive representative
notice or opportunity to bargain over the change; (4) the action had a

Of course, not every breach of a contract or dispute over the application of the contract
violates the HEERA. For a breach of contract to rise to an unfair practice it must be a change
in policy, i.e., have a generalized effect or continuing impact on terms and conditions of
employment." "The evil of the employer's conduct, therefore, is not the breaching of the
contract per se, but the altering of an established policy mutually agreed upon by the parties
during the negotiation process. [Citations omitted.] By unilaterally altering or reversing a
negotiated policy, the employer effectively repudiates the agreement." (Grant, supra, PERB
Decision No. 196, p. 9.)
In The Regents of the University of California (1991) PERB Decision No. 907-H
(Regents), PERB considered whether UC's unilateral imposition of an additional term
regarding security of employment for lecturers violated HEERA. In that case, the terms of the
MOU provided that after six years of employment, lecturers would be entitled to additional
three-year appointments if there was an instructional need and the individual had been
evaluated as being an excellent instructor. Shortly after the MOU had been agreed to,
administrators at UCLA determined that they wanted to assure that new instructors were
brought into the writing program. To that end, UCLA created a set ratio of longer-term
instructors to those who were appointed only for one year. The ratio was not based on criteria
agreed to in the MOU, and its application had the effect of denying eligible lecturers the
additional three-year appointment. PERB held that the ratio, which was not announced to or
negotiated with the union, was an alteration of the clear terms of the collective bargaining
agreement, and therefore violated the duty to bargain in good faith.
generalized effect or continuing impact on terms and conditions of
employment.
As noted in Grant, supra, PERB Decision No. 196, p. 8, PERB has the authority to
resolve an unfair practice charge even if it must interpret the terms of a CBA to do so.
27	27
Of course, not every breach of a contract or dispute over the application of the contract
violates the HEERA. For a breach of contract to rise to an unfair practice it must be a change
in policy, i.e., have a generalized effect or continuing impact on terms and conditions of
employment. 18 "The evil of the employer's conduct, therefore, is not the breaching of the
contract per se, but the altering of an established policy mutually agreed upon by the parties
during the negotiation process. [Citations omitted.] By unilaterally altering or reversing a
negotiated policy, the employer effectively repudiates the agreement." (Grant, supra, PERB
Decision No. 196, p. 9.)
In The Regents of the University of California (1991) PERB Decision No. 907-H
(Regents), PERB considered whether UC's unilateral imposition of an additional term
regarding security of employment for lecturers violated HEERA. In that case, the terms of the
MOU provided that after six years of employment, lecturers would be entitled to additional
three-year appointments if there was an instructional need and the individual had been
evaluated as being an excellent instructor. Shortly after the MOU had been agreed to,
administrators at UCLA determined that they wanted to assure that new instructors were
brought into the writing program. To that end, UCLA created a set ratio oflonger-term
instructors to those who were appointed only for one year. The ratio was not based on criteria
agreed to in the MOU, and its application had the effect of denying eligible lecturers the
additional three-year appointment. PERB held that the ratio, which was not announced to or
negotiated with the union, was an alteration of the clear terms of the collective bargaining
agreement, and therefore violated the duty to bargain in good faith.
generalized effect or continuing impact on tem1s and conditions of
employment.
18 As noted in Grant, supra, PERB Decision No. 196, p. 8, PERB has the authority to
resolve an unfair practice charge even if it must interpret the terms of a CBA to do so.

More recently, PERB applied the same principle in Regents of the University of
California (Davis) (2010) PERB Decision No. 2101-H (Davis). In that case, the Board
reiterated the criteria for establishing a unilateral change to include an employer breach or
alteration of the parties' written agreement that amounts to a change in policy (i.e., has a
generalized effect or continuing impact) on a matter within the scope of representation. In that
case, the Board interpreted a contract provision regarding transfer of unit work, found that the
provision was clear and unambiguous, and determined that UC's interpretation was overly
narrow and contrary to the intended meaning of the language. UC's unannounced application
of its incorrect interpretation therefore constituted an unlawful repudiation of the policy
contained in the MOU.
As in Regents, supra, PERB Decision No. 907-H and Davis, supra, PERB Decision
No. 2101-H, we must first determine in this case the meaning of the parties' negotiated
agreement embodied in the Switkes Letter. We then determine whether UC repudiated the
agreement with respect to part-time instructors at the Law School. Because the terms of the
Switkes Letter, taken as a whole, are not necessarily clear and unambiguous on their face, we
also examine the bargaining history and other extrinsic evidence to aid in our interpretation.
(See, e.g., County of Sonoma (2012) PERB Decision No. 2242-M, p. 16.)
There is little doubt that the purpose of the letter was to articulate the circumstances
that justify appointment as an adjunct professor, and to declare that adjunct appointments
should not be used for those performing lecturer duties. Lecturer duties involve teaching only,
as UC imposes no requirement of lecturers to perform research (although lecturers may do so,
if they choose). Nor does UC require lecturers to perform community and University service.
The text of the Switkes Letter incorporates and reiterates relevant parts of the APM,
i.e., sections 280-4 (Adjunct Professor Series), 230-4 (Visiting Appointments), and 220-4
28	28
More recently, PERB applied the same principle in Regents of the University of
California (Davis) (2010) PERB Decision No. 2101-H (Davis). 	In that case, the Board
reiterated the criteria for establishing a unilateral change to include an employer breach or
alteration of the parties' written agreement that amounts to a change in policy (i.e., has a
generalized effect or continuing impact) on a matter within the scope ofrepresentation. In that
case, the Board interpreted a contract provision regarding transfer of unit work, found that the
provision was clear and unambiguous, and detennined that UC's interpretation was overly
_narrow and contrary to the intended meaning of the language. UC's unannounced application
of its incorrect interpretation therefore constituted an unlawful repudiation of the policy
contained in the MOU.
As in Regents, supra, PERB Decision No. 907-H and Davis, supra, PERB Decision
No. 2101-H, we must first determine in this case the meaning of the parties' negotiated
agreement embodied in the Switkes Letter. We then determine whether UC repudiated the
agreement with respect to part-time instructors at the Law School. Because the terms of the
Switkes Letter, taken as a whole, are not necessarily clear and unambiguous on their face, we
also examine the bargaining history and other extrinsic evidence to aid in our interpretation.
(See, e.g., County of Sonoma (2012) PERB Decision No. 2242-M, p. 16.)
There is little doubt that the purpose of the letter was to articulate the circumstances
that justify appointment as an adjunct professor, and to declare that adjunct appointments
should not be used for those performing lecturer duties. Lecturer duties involve teaching only,
as UC imposes no requirement of lecturers to perform research (although lecturers may do so,
if they choose). Nor does UC require lecturers to perfonn community and University service.
The text of.the Switkes Letter incorporates and reiterates relevant parts of the APM,
i.e., sections 280-4 (Adjunct Professor Series), 230-4 (Visiting Appointments), and 220-4

(Professor Series). Thus, by its plain terms, the Switkes Letter distinguishes adjuncts from
lecturers by what their respective functions are in the University, not by the qualifications they
possessed when hired. For example, it explicitly provides with respect to adjuncts:
"Appointees with titles in this series [adjunct professor] also engage in University and public
service consistent with their assignments." Later in the Letter, it provides: "Similar to the
expectations placed on Academic Senate faculty, adjunct and visiting professor appointees are
expected to perform teaching, research, and service that extend beyond class-related advising."
(Emphasis added.) No distinction is made here between full-time and part-time adjuncts that
would permit part-timers to be relieved of the research and service portion of these
expectations.
The final substantive sentence of the Switkes Letter explicitly directs: "Adjunct and
Visiting Professor appointments should not be used for those performing Lecturer duties."
Though not specifically included in the Switkes Letter, APM 280-16, restrictions, states
with regard to adjuncts, "For appointments in which teaching is the main activity, it should be
demonstrated clearly before appointment to the Adjunct Professor series that a 'teaching only'
title, such as Lecturer is not appropriate. (e.g. a faculty member who also has clinical
responsibilities.)"
The terms of the Switkes Letter, together with the above-quoted portions of the APM,
provide two concepts to guide appointment of adjuncts and lecturers. First, the University may
assign adjunct professor titles to individuals who contribute primarily to teaching and have
limited responsibility for research, so long as they are "professional practitioners of
appropriate distinction." But by the terms of the Switkes Letter, these appointees are also
expected to engage in research and University and public service.
29	29
(Professor Series). Thus, by its plain terms, the Switkes Letter distinguishes adjuncts from
lecturers by what their respective functions are in the University, not by the qualifications they
possessed when hired. For example, it explicitly provides with respect to adjuncts:
"Appointees with titles in this series [adjunct professor] also engage in University and public
service consistent with their assignments." Later in the Letter, it provides: "Similar to the
expectations placed on Academic Senate faculty, adjunct and visiting professor appointees are
expected to perform teaching, research, and service that extend beyond class-related advising."
(Emphasis added.) No distinction is made here between full-time and part-time adjuncts that
would permit part-timers to be relieved of the research and service portion of these
expectations.
The final substantive sentence of the Switkes Letter explicitly directs: "Adjunct and
Visiting Professor appointments should not be used for those performing Lecturer duties."
Tp.ough not specifically included in the Switkes Letter, APM 280-16, restrictions, states
with regard to adjuncts, "For appointments in which teaching is the main activity, it should be
demonstrated clearly before appointment to the Adjunct Professor series that a 'teaching only'
title, such as Lecturer is not appropriate. (e.g. a faculty member who also has clinical
responsibilities.)"
The terms of the Switkes Letter, together with the above-quoted portions of the APM,
provide two concepts to guide appointment of adjuncts and lecturers. First, the University may
assign adjunct professor titles to individuals who contribute primarily to teaching and have
limited responsibility for research, so long as they are "professional practitioners of
appropriate distinction." But by the tenns of the Switkes Letter, these appointees are also
expected to engage in research and University and public service.

Second, lecturer is the default classification for instructors who perform only teaching
duties. Adjunct appointments should not be used for those performing lecturer duties, i.e.,
teaching-only duties. This conclusion is supported by the APM-280-16 quoted above, which
clearly directs that adjunct appointments should not be used where teaching is the main
activity.
Evidence of the bargaining history leading to agreement on the Switkes Letter supports
this interpretation. Myron Okada (Okada), a director of academic personnel policy in the UC
Office of the President, was a member of UC's bargaining team that negotiated the Switkes
Letter. He reported to Switkes herself. Okada testified that the Switkes Letter intended to
emphasize two things: (1) that anyone holding an adjunct professor title would have
responsibilities in teaching, research and service, and (2) the teaching load of an adjunct would
be different from a lecturer's teaching load.
When asked to recount what was said at the bargaining table concerning the last
sentence of the Switkes Letter ("Adjunct and visiting professor appointments should not be
used for those performing lecturer duties"), Okada explained that if individuals were being
hired to simply perform teaching duties, "it was always our requirement that they be given a
lecturer title. . . . If you were going to use a professor title, then the expectation is they would
be assigned responsibilities in teaching, research and service." [R.T., vol. II, p. 128.]
Later, after UC-AFT filed its grievance in this case, Okada (who had moved to the
Office of Labor Relations) spoke to Saunders about the grievance and expressed his concern
that the adjunct title was not appropriate for part-time instructors appointed to the Law School
who were not required to engage in research and service. According to Okada, Saunders
defended UCLA's classification practices on the basis that the lawyers appointed as adjuncts
satisfied the research and service requirements because they made presentations at conferences,
30	30
Second, lecturer is the default classification for instructors who perform only teaching
duties. Adjunct appointments should not be used for those performing lecturer duties, i.e.,
teaching-only duties. This conclusion is supported by the APM-280-16 quoted above, which
clearly directs that adjunct appointments should not be used where teaching is the main
activity.
Evidence
of
the bargaining history leading to agreement on the Switkes Letter supports
this interpretation. Myron Okada (Okada), a director
of
academic personnel policy in the UC
Office
of
the President, was a member
ofUC's
bargaining team that negotiated the Switkes
Letter. He reported to Switkes herself. Okada testified that the Switkes Letter intended to
emphasize two things: 	(1) that anyone holding an adjunct professor title would have
responsibilities in teaching, research and service, and (2) the teaching load
of
an adjunct would
be different from a lecturer's teaching load.
When asked to recount what was said at the bargaining table concerning the last
sentence
of
the Switkes Letter ("Adjunct and visiting professor appointments should not be
used for those performing lecturer duties"), Okada explained that
if
individuals were being
hired to simply perform teaching duties, "it was always our requirement that they be given a
lecturer title. . . .
If
you were going to use a professor title, then the expectation is they would
be assigned responsibilities in teaching, research and service." [R.T., vol. II, p. 128.]
Later, after UC-AFT filed its grievance in this case, Okada (who had moved to the
Office
of
Labor Relations) spoke to Saunders about the grievance and expressed his concern
that the adjunct title was not appropriate for part-time instructors appointed to the Law School
who were not required to engage in research and service. According to Okada, Saunders
defended UCLA's classification practices on the basis that the lawyers appointed as adjuncts
satisfied the research and service requirements because they made presentations at conferences,

wrote journal articles, etc. In Okada's view, expressed to Saunders, that type of research was
not the type of scholarly, cutting-edge research required for a professor title. Okada also
expressed concern to Saunders that the part-time adjuncts who taught one or two courses could
not possibly be engaged in performing the service requirement for the adjunct title.
Another witness who was at the bargaining table for UC, Patricia Price, conceded that
Switkes herself offered assurance to the Union during negotiations regarding the over-
classification of adjunct professors by saying, "Well, that can't happen because adjuncts are
supposed to engage in research, but if you want, we'll give you a letter that will confirm that."
(R.T., vol. I, p. 98.)
There was no evidence that UC ever notified adjunct professors at the Law School upon
appointment that they were required or expected to engage in any research, to serve on
University or department committees, or otherwise to render service to the University or to the
public beyond teaching and holding office hours. According to UC, it did not need to notify
adjuncts of any of these requirements because the research and service requirements mentioned
in the Switkes Letter are satisfied by the adjuncts' distinguished accomplishments outside the
University, the same accomplishments that justify their appointment as adjuncts pursuant to
APM 280-4, as modified in the Switkes Letter. Yet this interpretation is belied by the term in
the Switkes Letter that provides for a reduction in adjuncts' teaching load in recognition of the
research and service requirement. As in Regents, supra, PERB Decision No. 907-H, the
University has imposed its own reading of the Switkes Letter on its appointment process,
which has resulted in the terms of that agreement being repudiated.
The University's reading of the Switkes Letter conflates the qualifications for an
adjunct appointment-"appropriate distinction"-with the job requirements of the
appointment, viz., teaching, research and University and public service. If the very traits that
31	31
wrote journal articles, etc. In Okada' s view, expressed to Saunders, that type
of
research was
not
the type
of
scholarly, cutting-edge research required for a professor title. Okada also
expressed concern to Saunders that the part-time adjuncts who taught one or two courses could
not possibly
be
engaged
in
performing the service requirement for the adjunct title.
Another witness who was at the bargaining table for UC, Patricia Price, conceded that
Switkes
herself
offered assurance to the Union during negotiations regarding the over-
classification
of
adjunct professors
by
saying, "Well, that
can't
happen because adjuncts are
supposed to engage
in
research,
but
if
you want,
we'll
give you a letter that will confirm that."
(R.T., vol. I, p. 98.)
There was no evidence that UC ever notified adjunct professors at the Law School upon
appointment that they were required or expected to engage in any research, to serve on
University or department committees, or otherwise to render service to the University or to the
public beyond teaching and holding office hours. According to UC, it did not need to notify
adjuncts
of
any
of
these requirements because the research and service requirements mentioned
in
the Switkes Letter are satisfied by the adjuncts' distinguished accomplishments outside the
University, the same accomplishments that justify their appointment as adjuncts pursuant to
APM 280-4, as modified in the Switkes Letter. Yet this interpretation is belied by the term in
the Switkes Letter that provides for a reduction in adjuncts' teaching load in recognition
of
the
research and service requirement. As in Regents, supra, PERB Decision No. 907-H, the
University has imposed its own reading
of
the Switkes Letter on its appointment process,
which has resulted in the terms
of
that agreement being repudiated.
The University's reading
of
the Switkes Letter conflates the qualifications for an
adjunct appointment-"appropriate distinction"-with the job requirements
of
the
appointment, viz., teaching, research and University and public service.
If
the very traits that

qualified a part-time instructor to be classified as an adjunct professor, such as research of
distinction, service to the profession, publication of scholarly articles, appointment to a
judgeship, or other marks of professional accomplishment, are the same traits that satisfy the
ongoing University requirements of research and service, the language in the Switkes Letter
and APM that requires research and service of adjuncts would be surplusage.
UC's interpretation is further contradicted by the final sentence of the Switkes Letter,
and by APM 280-16, both of which decree that adjunct appointments should not be used for
those performing lecturer duties, i.e. teaching only.
Nor is UC's interpretation supported by the bargaining history, especially as recounted
in the only testimony of a UC member of the bargaining team, Okada. The fact that one of the
UCLA administrators responsible for appointing adjuncts, Goldberg, was not even familiar
with the terms of the Switkes Letter adds additional support for the conclusion that UC altered
the terms of the MOU by imposing its own unjustified interpretation on the parties' agreed-
upon language.
We are further persuaded that this is the case by the fact that UCLA appointed far more
adjuncts in relationship to lecturers than other UC law schools did. Evidence presented at the
administrative hearing showed that UCLA's ratio of adjuncts to lecturers for the 2011-12
academic year was 38 adjuncts to 25 lecturers. At UC Berkeley School of Law, the ratio of
adjuncts to lecturers was 12:104 for the same academic year. The law schools at UC Davis and
UC Irvine had virtually no adjuncts.
We decline to pass on which instructors hired by UC since the 2008-2009 academic
year are individuals of "appropriate distinction" because we do not view that as the relevant
inquiry to determine whether the Law School repudiated the terms of the Switkes Letter. We
conclude that the Law School did repudiate the terms because it appointed adjuncts to perform
32	32
qualified a part-time instructor to be classified as an adjunct professor, such
as
research
of
distinction, service to the profession, publication
of
scholarly articles, appointment to a
judgeship, or other marks
of
professional accomplishment, are the same traits that satisfy the
ongoing University requirements
of
research and service, the language in the Switk:es Letter
and APM that requires research and service
of
adjuncts would be surplusage.
UC's interpretation is further contradicted
by
the final sentence
of
the Switkes Letter,
and
by
APM 280-16, both
of
which decree that adjunct appointments should not be used for
those performing lecturer duties, i.e. teaching only.
Nor is
UC's
interpretation supported by the bargaining history, especially as recounted
in the only testimony
of
a UC member
of
the bargaining team, Okada. The fact that one
of
the
UCLA administrators responsible for appointing adjuncts, Goldberg, was not even familiar
with the terms
of
the Switkes Letter adds additional support for the conclusion that UC altered
the terms
of
the MOU by imposing its own unjustified interpretation on the parties' agreed-
upon language.
We are further persuaded that this is the case
by
the fact that UCLA appointed far more
adjuncts in relationship to lecturers than other UC law schools did. Evidence presented at the
administrative hearing showed that UCLA's ratio
of
adjuncts to lecturers for the 2011-12
academic year was 38 adjuncts to 25 lecturers. At UC Berkeley School
of
Law, the ratio
of
adjuncts to lecturers was 12:104 for the same academic year. The law schools at UC Davis and
UC Irvine had virtually no adjuncts.
We decline to pass on which instructors hired by UC since the 2008-2009 academic
year are individuals
of
"appropriate distinction" because we do not view that as the relevant
inquiry to detennine whether the Law School repudiated the terms of the Switkes Letter. We
conclude that the Law School did repudiate the terms because it appointed adjuncts to perform

the work reserved to lecturers. By not requiring adjuncts to engage in research and service in
addition to what they did to qualify for the adjunct appointment in the first place, the Law
School ignored the clear requirement that the adjunct assignment should not be used for
teaching-only assignments. Instead, the Law School used the adjunct assignment as a status
designation, reserving it for those applicants it believed were the most distinguished.
This was not what UC agreed to in drafting the Switkes Letter. The fact that the
University does not expect adjuncts to engage in research or University and community
service, other than what they do as part of their professional practice, erodes any difference
between adjuncts and lecturers that the Switkes Letter intended to establish.
In sum, we conclude that the Switkes Letter was intended to direct that part-time
appointments to non-Senate positions that require only teaching duties shall be classified as
lecturers. By asserting that the research and service requirement are met by the adjuncts' pre-
appointment professional achievements, UC conflates the concept of "individuals of
appropriate distinction" with the research and service requirement, an interpretation that was
not communicated to, much less agreed to by the Union.
We also reject the University's argument that its academic freedom permits it to
appoint who it chooses as adjuncts and that freedom cannot be interfered with by PERB's
adjudication of this case. Our decision here does not encroach on the University's exercise of
its managerial discretion regarding whom to hire into its ranks of instructors. Instead, we
simply find that it had agreed to a standard, in the form of the Switkes Letter, that establishes
rules regarding the classification of instructors as either adjuncts or lecturers. Ordering UC to
abide by the agreement it made does not interfere with its academic freedom."
It is noteworthy that UC never explained what interest it had in designating certain
instructors as adjuncts as opposed to lecturers. No evidence was presented that it needed to
33	33
the work reserved to lecturers. By not requiring adjuncts to engage in research and service in
addition to what they did to qualify for the adjunct appointment in the first place, the Law
School ignored the clear requirement that the adjunct assignment should not be used for
teaching-only assignments. Instead, the Law School used the adjunct assignment as a status
designation, reserving it for those applicants it believed were the most distinguished.
This was not what UC agreed to in drafting the Switkes Letter. The fact that the
University does not expect adjuncts to engage in research or University and community
service, other than what they do as part of their professional practice, erodes any difference
between adjuncts and lecturers that the Switkes Letter intended to establish.
In sum, we conclude that the Switkes Letter was intended to direct that part-time
appointments to non-Senate positions that require only teaching duties shall be classified as
lecturers. By asserting that the research and service requirement are met by the adjuncts' pre-
appointment professional achievements, UC conflates the concept of "individuals of
appropriate distinction" with the research and service requirement, an interpretation that was
not communicated to, much less agreed to by the Union.
We also reject the University's argument that its academic freedom permits it to
appoint who it chooses as adjuncts and that freedom cannot be interfered with by PERB' s
adjudication of this case. Our decision here does not encroach on the University's exercise of
its managerial discretion regarding whom to hire into its ranks of instructors. Instead, we
simply find that it had agreed to a standard, in the form of the Switkes Letter, that establishes
rules regarding the classification of instructors as either adjuncts or lecturers. Ordering UC to
abide by the agreement it made does not interfere with its academic freedom. 19
19 It is noteworthy that UC never explained what interest it had in designating certain
instructors as adjuncts as opposed to lecturers. No evidence was presented that it needed to

For these reasons we conclude that UC's appointment practices at UCLA School of
Law during the 2008-2009 academic year and after repudiated the terms of the MOU as
embodied in the Switkes Letter, thereby unilaterally changing negotiable terms and conditions
of employment in violation of HEERA section 3571(c).
REMEDY
In a case in which PERB has determined that a unilateral change has occurred, the
appropriate remedy is to order the party to cease and desist from implementing the change,
restore the status quo as it existed before the change, and to make whole those parties and
individuals injured by the change. (See, e.g., Antelope Valley Community College District
(1979) PERB Decision No. 97; Desert Sands Unified School District (2004) PERB Decision
No. 1682a; Lost Hills Union Elementary School District (2004) PERB Decision No. 1652.)
UC-AFT urges the Board to reclassify all part-time and "by-agreement" adjuncts at the
Law School as lecturers, as these instructors were assigned only teaching duties. Those
adjuncts who were paid less than what they would have made as lecturers should be made
whole, and those adjuncts who made more than they would have made as lecturers should be
kept at the higher pay rate, according to UC-AFT. Because UC-AFT has not received dues
from these mis-classified adjuncts, it asserts that UC should make it whole for the lost dues,
with interest from January 17, 2009 to the present.
In the alternative, UC-AFT asserts that if PERB determines that there is a need to
determine on an individual basis who is entitled to the adjunct classification, PERB should
order UC to comply with the subpoenas requested by UC-AFT seeking various documents that
purport to show the full range of duties required by adjuncts. The ALJ declined to enforce
these subpoenas, demurring the issue for a compliance proceeding.
assign individuals as adjuncts in order to attract them to teach at the Law School, or that the
adjunct appointment paid a higher salary, etc.
34	34
For these reasons we conclude that
UC's
appointment practices at UCLA School
of
Law during the 2008-2009 academic year and after repudiated the tenns
of
the MOU as
embodied in the Switkes Letter, thereby unilaterally changing negotiable terms and conditions
of
employment in violation
of
HEERA section 3571(c).
REMEDY
In a case in which PERB has determined that a unilateral change has occurred, the
appropriate remedy is to order the party to cease and desist from implementing the change,
restore the status quo as it existed before the change, and to make whole those parties and
individuals injured
by
the change. (See, e.g., Antelope Valley Community College District
(1979) PERB Decision No. 97; Desert Sands Unified School District (2004) PERB Decision
No. 1682a; Lost Hills Union Elementary School District (2004) PERB Decision No. 1652.)
UC-AFT urges the Board to reclassify all part-time and "by-agreement" adjuncts at the
Law School as lecturers, as these instructors were assigned only teaching duties. Those
adjuncts who were paid less than what they would have made as lecturers should be made
whole, and those adjuncts who made more than they would have made as lecturers should be
kept at the higher pay rate, according to UC-AFT. Because UC-AFT has not received dues
from these mis-classified adjuncts, it asserts that UC should make it whole for the lost dues,
with interest from January 17, 2009 to the present.
In the alternative, UC-AFT asserts that
if
PERB determines that there is a need to
determine on an individual basis who is entitled to the adjunct classification, PERB should
order UC to comply with the subpoenas requested by UC-AFT seeking various documents that
purport to show the full range of duties required by adjuncts. The ALJ declined to enforce
these subpoenas, demurring the issue for a compliance proceeding.
assign individuals as adjuncts in order to attract them to teach at the Law School, or that the
adjunct appointment paid a higher salary, etc.

After UC produces these documents, UC-AFT urges PERB to order the parties to
attempt to agree on which individuals have been properly classified as adjuncts. If the parties
are unable to reach agreement, PERB should schedule further hearings to determine if a
particular disputed appointment was proper.
UC contends that no remedy is appropriate because it did not violate HEERA, but in the
event a violation is found, it urges that only a limited remedy be ordered. According to UC,
the individuals who were misclassified as adjuncts should be assessed back dues owed to
UC-AFT. Going forward, UC should be ordered to include in future adjunct's appointment
letters the University's expectation regarding their duties as to teaching, research or creative
work, and University or public service.
We agree with UC-AFT that the appropriate order in this case should require UC to
cease and desist from its appointment practices at the Law School which repudiate the terms of
the Switkes Letter.
To remedy UC's misclassification of adjuncts at the Law School, it is appropriate to
order that all part-time instructors hired at the Law School between September 9, 2008 and the
present who were classified as adjunct professors and who were not required to engage in
research, or public or University service other than what they performed as part of their
professional duties as attorneys or judges, shall be re-classified as lecturers. (Davis, supra,
PERB Decision No. 2101-H.) Such reclassified individuals shall be paid the difference, if any,
between the salaries earned as adjuncts and the salaries they would have received as lecturers,
with interest at 7 percent per annum. Any adjunct who was paid above the lecturer salary scale
will not suffer a loss in pay as a result of this reclassification. (Marin Community College
District (1995) PERB Decision No. 1092, p. 10.) These individuals shall also be paid any
35	35
After UC produces these documents, UC-AFT urges PERB to order the parties to
attempt to agree
on
which individuals have been properly classified as adjuncts.
	If
the parties
are unable to reach agreement, PERB should schedule further hearings to determine
if
a
particular disputed appointment was proper.
UC contends that no remedy is appropriate because it did not violate HEERA, but in the
event a violation is found, it urges that only a limited remedy
be
ordered. According to UC,
the individuals who were misclassified as adjuncts should
be
assessed back dues owed to
UC-AFT. Going forward, UC should be ordered to include in future adjunct's appointment
letters the University's expectation regarding their duties as to teaching, research or creative
work, and University or public service.
We agree with UC-AFT that the appropriate order
in
this case should require UC to
cease and desist from its appointment practices at the Law School which repudiate the terms
of
the Switkes Letter.
To remedy UC's misclassification
of
adjuncts at the Law School, it is appropriate to
order that all part-time instructors hired at the Law School between September 9, 2008 and the
present who were classified as adjunct professors and who were not required to engage in
research, or public or University service other than what they performed as part
of
their
professional duties as attorneys or judges, shall be re-classified as lecturers. (Davis, supra,
PERB Decision No. 2101-H.) Such reclassified individuals shall be paid the difference,
if
any,
between the salaries earned as adjuncts and the salaries they would have received as lecturers,
with interest at 7 percent per annum. Any adjunct who was paid above the lecturer salary scale
will not suffer a loss in pay as a result
of
this reclassification. (Marin Community College
District (1995) PERB Decision No. 1092, p. 10.) These individuals shall also be paid any

other benefits to which they would be entitled to under the MOU between UC-AFT and the
University, with interest at the rate of 7 percent per annum.
After re-classifying the affected individuals to the lecturer series, if UC can
demonstrate that particular individuals should be considered adjuncts because of duties that the
Law School requires in addition to teaching, UC may re-appoint those individuals as adjuncts
upon such a showing. If the parties are unable to resolve disputes concerning the placement of
individuals who were appointed between September 2008 and the date of this decision, PERB
will resolve such disputes in a compliance proceeding pursuant to PERB Regulation 32980.
However, as to disputes over appointments going forward, PERB will not assume
jurisdiction over such matters, despite the parties' agreement in Article 5 E of the MOU.
HEERA section 3563.2(b) provides:
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation of such an agreement that would not also
constitute an unfair practice under this chapter.
Having determined that by unilaterally imposing its own interpretation of the Switkes Letter,
UC has unilaterally altered agreed-upon terms and conditions of employment that had a
generalized effect or continuing impact, we order a remedy that potentially involves PERB in
resolving disputes concerning compliance with that order.
However, future disputes between the parties over individual appointments in which
UC determines that an instructor should be classified as an adjunct are not necessarily changes
that have a generalized impact. Instead such individual classifications as applied to a
particular individual are more accurately characterized as a violation of the MOU, i.e., a
grievance.
Despite the terms of Article 5 E, the parties may not confer jurisdiction on PERB where
the statute decrees that we have none. (State of California, Department of the Youth Authority
36	36
other benefits to which they would be entitled to under the MOU between UC-AFT and the
University, with interest at the rate
of
7 percent per annum.
After re-classifying the affected individuals to the lecturer series,
if
UC can
demonstrate that particular individuals should be considered adjuncts because
of
duties that the
Law School requires in addition to teaching, UC may re-appoint those individuals as adjuncts
upon such a showing. If the parties are unable to resolve disputes concerning the placement
of
individuals who were appointed between September 2008 and the date
of
this decision, PERB
will resolve such disputes in a compliance proceeding pursuant to PERB Regulation 32980.
However, as to disputes over appointments going forward, PERB will not assume
jurisdiction over such matters, despite the parties' agreement in Article 5 E
of
the MOU.
HEERA section 3563.2(b) provides:
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation
of
such
an
agreement that would not also
constitute an unfair practice under this chapter.
Having determined that by unilaterally imposing its own interpretation
of
the Switkes Letter,
UC has unilaterally altered agreed-upon terms and conditions
of
employment that had a
generalized effect or continuing impact, we order a remedy that potentially involves PERB in
resolving disputes concerning compliance with that order.
However, future disputes between the parties over individual appointments in which
UC determines that an instructor should be classified as an adjunct are not necessarily changes
that have a generalized impact. Instead such individual classifications as applied to a
particular individual are more accurately characterized as a violation of the MOU, i.e., a
grievance.
Despite the terms of Article 5 E, the parties may not confer jurisdiction on PERB where
the statute decrees that we have none. (State
of
California, Department
of
the Youth Authority

(1989) PERB Decision No. 749-S, pp. 7-8.) Thus, future disputes over particular
classifications must be left to the parties' dispute resolution mechanisms. We therefore decline
the Union's invitation to assert jurisdiction over such disputes.
UC shall remit to UC-AFT a sum equivalent to dues or agency fees, with interest at
7 percent per annum, that would have been remitted to the Union between September 9, 2008,
and the present had the adjuncts at issue in this case been classified as lecturers. (Hospitality
Care Center (1994) 314 NLRB 893, 895-896.) Contrary to UC's argument, it is not
appropriate to penalize employees for the employer's unfair practice by requiring that they
remit back dues.
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this case, the Board reverses the proposed decision as to timeliness and finds that the Regents
of the University of California (University) violated the Higher Education Employer-Employee
Relations Act (HEERA) section 3571(c) by repudiating terms of an agreement between it and
the University Council-American Federation of Teachers (UC-AFT) by failing to classify as
lectures those part-time instructors, hired by the University of California, Los Angeles (UCLA)
Law School to engage in teaching-only duties and by failing to provide relevant information to
UC-AFT. The above conduct also violated section 3571(a).
The University and its representatives shall:
A. CEASE AND DESIST FROM:
1 . 	Repudiating the terms of the Switkes Letter by classifying part-time
instructors at the UCLA Law School as adjunct professors when they should have been
classified as lecturers.
37	37
(1989) PERB Decision No. 749-S, pp. 7-8.) Thus, future disputes over particular
classifications must be left to the parties' dispute resolution mechanisms. We therefore decline
the Union's invitation to assert jurisdiction over such disputes.
UC shall remit to UC-AFT a sum equivalent to dues or agency fees, with interest at
7 percent per annum, that would have been remitted to the Union between September 9, 2008,
and the present had the adjuncts at issue in this case been classified as lecturers. (Hospitality
Care Center (1994) 314 NLRB 893, 895-896.) Contrary to UC's argument, it is not
appropriate to penalize employees for the employer's unfair practice by requiring that they
remit back dues.
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this case, the Board reverses the proposed decision as to timeliness and finds that the Regents
of the University of California (University) violated the Higher Education Employer-Employee
Relations Act (HEERA) section 3571(c) by repudiating terms of an agreement between it and
the University Council-American Federation of Teachers (UC-AFT) by failing to classify as
lechlfes those part-time instructors, hired by the University of California, Los Angeles (UCLA)
Law School to engage in teaching-only duties and by failing to provide relevant information to
UC-AFT. The above conduct also violated section 3571(a).
The University and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Repudiating the terms of the Switkes Letter by classifying part-time
instructors at the UCLA Law School as adjunct professors when they should have been
classified as lecturers.

2. 	Refusing to provide relevant information regarding the appointment of
adjunct faculty at the UCLA Law School as requested by UC-AFT on March 30, 2010.
3. 	Interfering with the rights of employees in Unit 18 to form, join, and
participate in the activities of the employee organization of their own choosing for the purpose
of representation on all matters of employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HERRA:
1 . 	Reclassify as lectures all part-time instructors, hired at the UCLA Law
School between September 9, 2008 and the present who were hired to engage in teaching only
duties.
2. 	Make whole for any loss in compensation and benefits, all persons who
were mis-classified as adjunct professors between September 9, 2008 and the present. Such
payment shall include interest at a rate of 7 percent per annum.
3. 	Remit to UC-AFT a sum equivalent to dues or agency fees, with interest
at the rate of 7 percent per annum, that would have been remitted to UC-AFT between
September 9, 2008 and the present had the adjuncts at issue in this case been classified as
lecturers.
4. 	Provide UC-AFT with the information it requested on March 30, 2010,
described in the proposed decision in this matter.
5. 	Within ten (10) workdays following service of this decision, post at all
work locations where notices to employees in Unit 18 are customarily posted, copies of the
Notice attached hereto as an Appendix, signed by an authorized agent of the University. Such
posting shall be maintained for a period of at least thirty (30) consecutive workdays. The
University and their representatives shall take reasonable steps to ensure that the posting
Notice is not reduced in size, defaced, altered or covered by any other material. In addition to
38
2. 	Refusing to provide relevant information regarding the appointment
of
adjunct faculty at the UCLA Law School as requested by UC-AFT on March 30, 2010.
3. 	Interfering with the rights
of
employees in Unit
18
to form, join, and
participate in the activities
of
the employee organization
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HERRA:
1.	
Reclassify as lectures all part-time instructors, hired at the UCLA Law
School between September 9, 2008 and the present who were hired to engage in teaching only
duties.
2. 	Make whole for any loss in compensation and benefits, all persons who
were mis-classified as adjunct professors between September 9, 2008 and the present. Such
payment shall include interest at a rate
of
7 percent per annum.
3. 	Remit to UC-AFT a sum equivalent to dues or agency fees, with interest
at the rate
of
7 percent per annum, that would have been remitted to UC-AFT between
September 9, 2008 and the present had the adjuncts at issue in this case been classified as
lecturers.
4. 	Provide UC-AFT with the.information it requested on March 30, 2010,
described in the proposed decision in this matter.
5. 	Within ten (10) workdays following service
of
this decision, post at all
work locations where notices to employees in Unit 18 are customarily posted, copies
of
the
Notice attached hereto as an Appendix, signed by an authorized agent of the University. Such
posting shall be maintained for a period of at least thirty (30) consecutive workdays. The
University and their representatives shall take reasonable steps to ensure that the posting
Notice is not reduced in size, defaced, altered or covered by any other material. In addition to
38

physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the University to communicate
with its employees in the bargaining unit represented by UC-AFT.
6. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The University shall provide reports in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on UC-AFT.
Members Huguenin and Banks joined in this Decision.
39	39
physical posting
of
paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used
by
the University to communicate
with its employees
in
the bargaining unit represented
by
UC-AFT.
6. 	Written notification
of
the actions taken to comply with this Order shall
be
made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. The University shall provide reports
in
writing, as directed
by
the General
Counsel or his/her designee. All reports regarding compliance with this Order shall
be
concurrently served on UC-AFT.
Members Huguenin and Banks joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-1103-H, University Council-AFT v.
Regents of the University of California, in which all parties had the right to participate, it has
been found that the Regents of the University of California violated the Higher Education
Employer-Employee Relations Act (HEERA), Government Code section 3560 et seq., by
repudiating terms of an agreement between it and the University Council-American Federation
of Teachers (UC-AFT) by failing to classify as lecturers part-time instructors hired by the
University of California, Los Angeles (UCLA) Law School to engage in teaching-only duties.
The above conduct violated subsections 3571(a) and (c).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 . 	Repudiating the terms of the Switkes Letter by classifying part-time
instructors at the UCLA Law School as adjunct professors when they should have been
classified as lecturers.
Refusing to provide relevant information regarding the appointment of
adjunct faculty at the UCLA Law School as requested by UC-AFT on March 30, 2010.
3. 	Interfering with the rights of employees in Unit 18 to form, join, and
participate in the activities of the employee organization of their own choosing for the purpose
of representation on all matters of employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
Reclassify as lecturers all part-time instructors, hired at the UCLA Law
School between September 9, 2008 and the present who were hired to engage in teaching only
duties.
2. 	Make whole for any loss in compensation and benefits, all persons who
were mis-classified as adjunct professors at the UCLA Law School between September 9, 2008
and the present. Such payment shall include interest at a rate of 7 percent per annum.
3. 	Remit to UC-AFT a sum equivalent to dues or agency fees, with interest
at the rate of 7 percent per annum, that would have been remitted to UC-AFT between
September 9, 2008 and the present had the adjuncts at issue in this case been classified as
lecturers.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-1103-H, University Council-AFT
v.
Regents
of
the University
of
California, in which all parties had the right to participate, it has
been found that the Regents
of
the University
of
California violated the Higher Education
Employer-Employee Relations Act (HEERA), Government Code section 3560 et seq., by
repudiating terms
of
an agreement between it and the University Council-American Federation
of
Teachers (UC-AFT) by failing to classify
as
lecturers part-time instructors hired by the
University
of
California, Los Angeles (UCLA) Law School to engage in teaching-only duties.
The above conduct violated subsections 357l(a) and (c).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
L 	Repudiating the terms
of
the Switkes Letter
by
classifying part-time
instructors at the UCLA Law School as adjunct professors when they should have been
classified as lecturers.
2.	
2. 	Refusing to provide relevant information regarding the appointment
of
adjunct faculty at the UCLA Law School as requested by UC-AFT on March 30, 2010.
3. 	Interfering with the rights
of
employees in Unit 18 to form, join, and
participate in the activities
of
the employee organization
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1.	
1. 	Reclassify as lecturers all part-time instructors, hired at the UCLA Law
School between September 9, 2008 and the present who were hired to engage in teaching only
duties.
2. 	Make whole for any loss in compensation and benefits, all persons who
were mis-classified as adjunct professors at the UCLA Law School between September 9, 2008
and the present. Such payment shall include interest at a rate
of
7 percent per annum.
3. 	Remit to UC-AFT a sum equivalent to dues or agency fees, with interest
at the rate
of
7 percent per annum, that would have been remitted to UC-AFT between
September 9, 2008 and the present had the adjuncts at issue in this case been classified as
lecturers.

4. 	Provide UC-AFT with the information it requested on March 30, 2010.
Dated: 	REGENTS OF THE UNIVERSITY OF
CALIFORNIA
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
22
4.	
Provide UC-AFT with the information it requested
on
March 30, 2010.
--------	
Dated: 	REGENTS OF THE UNIVERSITY OF
CALIFORNIA
By:
------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.