Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 ) (PERB 2105H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Charging Party,
V.
AFSCME, LOCAL 3299,
Respondent.
Case No. SF-CO-164-H
PERB Decision No. 2105-H
April 21, 2010
Appearances: Littler Mendelson by Robert G. Hulteng, Attorney, for Regents of the
University of California; Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr.,
Attorney, for AFSCME, Local 3299.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Regents of the University of California (University or UC)
of a Board agent's dismissal of its unfair practice charge. The charge alleged that AFSCME,
Local 3299 (AFSCME) violated the Higher Education Employer-Employee Relations Act
(HEERA)1 section 3571.l(c) and (d) when it unilaterally changed the access policy by
leafleting in prohibited areas at the University medical centers on the Los Angeles (UCLA) and
San Francisco (UCSF) campuses.
1 HEERA is codified at Government Code section 3560 et seq. 	HEERA section 3571.1
states, in relevant part, that it is unlawful for an employee organization to:
(c) Refuse or fail to engage in meeting and conferring with the
higher education employer.
(d) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).

The Board has reviewed the dismissal and the record in light
of
the University's appeal,
A:FSCME's response, and the relevant law. Based on this review, the Board affirms the
dismissal
of
the unfair practice charge for the reasons discussed below.
BACKGROUND
A:FSCME is the exclusive representative
of
two University bargaining units: the
Patient Care Technical Unit (PCT) and the Service Unit (SX). A:FSCME and the University
are parties to collective bargaining agreements
(CBA:)
covering the respective units. The
PCT/UC contract expired on September 30, 2007. The parties initiated negotiations for a
successor contract in August 2007. PERB declared the parties were at impasse on
December 14, 2007. The SX/UC contract expired on January 31, 2008. Following
unsuccessful negotiations, PERB certified the parties were at impasse on February 5, 2008.
Upon determination
of
impasse, the parties commenced impasse procedures in both units.
Beginning on or about January 15, 2008, A:FSCME members and staff began leafleting
outside the entrances to each
of
the five medical centers located on University campuses.2 The
University alleges that the leafleting campaigns at the
UCLA:
and UCSF Medical Centers were
conducted in areas prohibited by the access policy. The PCT/UC and SX/UC
CBA:s
each
~ The leaflets included the following statements:
UC workers believe that below-market wages, a high stress
environment and increasing benefit costs cause UC to lose
experienced workers and create the need to rely on temporary
staff
....
Brought to you by the 11,000 UC Patient Care Technical
Employees at UC's Medical Centers represented by A:FSCME
Local 3299. A:FSCME is currently in contract negotiations with
UC. We are fighting for wages, benefits and working conditions
which would close the gap with other medical centers. Please
support us!
2

contain substantially similar access provisions. The relevant provisions in Article I
of
the
PCT/UC CBA provide:
A.2. 	AFSCME will abide by the reasonable access rules and
regulations promulgated at each campus/Laboratory.
F. AFSCME officers and representatives and bargaining unit
employees, including local Union officers and representatives,
shall not conduct any Union activity or Union business on
University premises
...
unless such activity is specifically
authorized by the provisions
of
this Agreement and is conducted
in accordance and conformance with campus procedures.
G.	
The University retains the right to enforce access rules and
regulations in accordance with local campus procedures
....
Local access regulations were in place at both UCLA and UCSF prior to the negotiation
of
the expired CBAs, and are applicable to union and non-union employee organizations.
The UCSF Access Guidelines include provisions that govern the use
of
University
facilities and union access to employees. 3 The Access Guidelines prohibit union access to the
following work areas:
a.	
Patient care, clinical laboratories, and clinical areas;
b. Academic areas while instruction, learning, counseling or
research is in progress;
c. Research areas when the health, safety, or security
of
individuals or the research could be adversely affected;
d. Private residential areas
of
students.
The UCLA access regulations provide specific guidelines regarding the distribution
of
literature at the Center for Health Sciences (CHS) and the Medical Plaza. Appendix I
of
the
The Access Guidelines define employee organization business as "all legal activities
of an employee organization, including, but not limited to meetings, dues collection, soliciting,
distributing and campaigning."
3

UCLA Regulations on Activities, Registered Organizations
and
Use
of
Properties contains the
following provisions:
B. LITERATURE DISTRIBUTION
1.
External Accesses to CHS and Medical Plaza
Literature may be distributed only at the following areas and
within the time limits specified:
a.	
Entrance to School
of
Public Health, north side
of
CHS.
b.	
Northeast entrance to CHS
off
Circle Drive South across
from Life Sciences Building.
c.	
East entrance to CHS near Biomedical library
off
Tiverton
Drive.
d.	
Arcade entrance on east side
of
CHS adjacent to School
of
Dentistry.
e.	
Northwest "B" floor entrance to CHS adjacent to parking
lot "F."
f.	
Main entrance to NPI
off
Westwood Boulevard before
8:30 a.m. and after 4:30 p.m.
On February 5, 2008, the human resources director for the UCSF Medical Center
ordered the AFSCME representatives handing out leaflets at the entrance
of
the medical center
to cease doing so and directed them to move to the public street, approximately 90 feet from
the entrance
of
the facility.
On February 6, 2008, at the direction
of
the UCLA Medical Center chief executive
officer, campus security guards ordered AFSCME leafleters away from the entrance
of
the
medical center and away from the plaza area located outside the entrance.4
The charge alleges that, "AFSCME began to refuse to comply with directions
ofMedical Center officials issued pursuant to the [access] Regulations." The charge does not
describe AFSCME's conduct in refusing to comply with the regulations. There are no facts
alleged that leafleters returned to the prohibited areas after being directed to leave.
4

On February 14, 2008, AFSCME applied to the Alameda County Superior Court for a
temporary restraining order (TRO). AFSCME sought a court order that prohibited the
University from enforcing the campus access policies at UCLA and UCSF. AFSCME argued
to the superior court that the campus regulations violated the constitutional right to free speech.
The court granted the TRO and ordered the University to permit leafleting at the entrances
of
the UCLA and UCSF medical centers, in accordance with instructions set by the court.5
On February 15, 2008, the University filed the instant unfair practice charge alleging
that by seeking the TRO, AFSCME repudiated the contract and effected a unilateral change in
the access policy.
On March 12, 2008, the court conducted a hearing on AFSCME's request for a
preliminary injunction to determine whether to continue the order allowing AFSCME to leaflet
at the entrances
of
the UCLA and UCSF medical centers. The court denied the preliminary
injunction on jurisdictional grounds and dissolved the TRO, stating that proper jurisdiction
over the dispute rests with PERB.
On March 18, 2008, the University filed an amended charge alleging that AFSCME's
initiation
of
the leafleting campaign in January 2008, amounted to a repudiation
of
the access
provisions
of
the CBA. The University alleged that by initiating the leafleting campaign
without first seeking a determination pursuant to the grievance procedure that the regulations
5 The court's order allowed: 	(1) one handbiller to distribute literature in front
of
the
main entrance
of
the UCLA Medical Center, and two handbillers to distribute literature inside
the CHS Plaza adjacent to the UCLA Medical Center; (2) two handbillers to distribute
literature 10 feet from the parking entrance to the UCLA Medical Center; (3) one handbiller
each to distribute literature at both the entrances on the east and west sides of Building 200 ofthe Morton Medical Center at UCLA; (4) two handbillers to distribute literature at the Jules
Stein entrance to the CHS Parking Complex at the UCLA Medical Center; and (5) one
handbiller to distribute literature at the alcove entrance at 505 Parnassus at the UCSF Medical
Center.
5

were unreasonable, or without first negotiating to impasse with the University over the access
policy, AFSCME unilaterally changed the access policy.
The Board agent dismissed the charge finding that AFSCME's lawsuit against the
University did not constitute an unfair labor practice.
On appeal, the University asserts that AFSCME's attempt to obtain an injunction is not
relevant to its prior refusal to comply with the access policy. The University contends that by
refusing to follow the access policies beginning on January 15, 2008, AFSCME repudiated the
contract and effected a unilateral change in policy.
DISCUSSION
In essence, the University alleges that AFSCME unilaterally changed the access policy
without providing notice and an opportunity to bargain when AFSCME members and staff
began leafleting on January 15, 2008, in areas prohibited by the policy. The PCT unit was at
impasse prior to January 15. Thus, the University alleges a violation ofHEERA
section 3571.l(d). Impasse was certified in the SX unit on February 5, 2008, after leafleting
began. Leafleting continued until at least February
6.
	The University, therefore, alleges a
violation ofHEERA section 3571.l(c) and (d).
A unilateral change in a negotiable subject prior to the completion
of
bargaining or
the completion
of
impasse procedures is a "per se" violation. (Grant Joint Union High
School District (1982) PERB Decision No. 196 (Grant); Redwoods Community College
District (1996) PERB Decision No. 1141.) The same standard for unilateral change violations
by employers applies to allegations of unlawful unilateral changes by unions. (The Regents
of
the University
of
California (1992) PERB Decision No. 922-H (Regents).)
Accordingly, the criteria to establish a "per se" unilateral change violation are: 	(1) the
exclusive representative breached or altered the parties' written agreement or an established
6

past practice; (2) such action was taken without giving the other party notice or an opportunity
to bargain over the change; (3) the change was not merely an isolated breach
of
the contract,
but amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
bargaining unit members' terms and conditions
of
employment); and ( 4) the change in policy
concerns a matter within the scope
of
representation. (Vernon Fire Fighters
v.
City
of
Vernon
(1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB Decision
No. 160; San Joaquin County Employees Assn.
v.
City
of
Stockton (1984)
161
Cal.App.3d 813;
Grant.)
PERB is prohibited from enforcement
of
agreements between the parties and may only
issue a complaint where the breach
of
the agreement also constitutes an unfair practice in
violation
of
HEERA.6 Therefore, where, as in this case, the University alleges that a violation
of
the CBA between the parties effectuated a repudiation
of
the agreement and an illegal
unilateral change, the Board must determine
if
the conduct amounted to an unfair practice in
violation
of
HEERA, or was an isolated breach
of
the agreement.
The Board has held that in order for the breach
of
a collective bargaining agreement to
constitute an independent violation, the breach must also amount to a change
of
policy. 	Where
there is a unilateral breach
of
an agreement without institution
of
a new policy
of
general
application, the conduct does not violate the act. (Grant.) Therefore, demonstration
of
a
change in policy is crucial to finding a repudiation
of
the agreement as opposed to a mere
default in the agreement. As such, to establish a prima facie case for an iliegal unilateral
6 HEERA section 3563.2(b) states:
The board shall not have the 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.
7

change based on a breach
of
a collective bargaining agreement, the charging party must allege
facts that show that the breach "amounts to a change in policy having a generalized effect or
continuing impact upon the terms and conditions
of
employment
of
bargaining unit members."
(Regents; Clovis Unified School District (1986) PERB Decision No. 597; Grant.)7
As amended, the University's charge alleges that AFSCME repudiated the CBA in
violation
of
HEERA and thereby unilaterally changed the access policy when it leafleted in
areas prohibited by the policy.
Applying these facts to the test for a unilateral change violation, we find the
University's charge does not state a prima facie case.
There is no dispute that the access policy is a matter within the scope
of
representation
(Regents
of
the University
of
California (2004) PERB Decision No. 1700-H), or that AFSCME
began their leafleting campaign without providing the University with notice and an
opportunity to bargain. Thus, the second and fourth factors have been met. We next consider
whether the University provided facts to establish a breach
of
the access policies as referenced
in the parties' CBAs.
The parties' CBAs specifically provide that AFSCME will abide by local access
regulations at each University campuses. Thus, a breach
of
the campus access regulations
could amount to a breach
of
the CBA.
With respect to UCSF, the local regulations prohibit union access to work areas
involving patient care, clinical laboratories and clinical areas. While the record contains much
discussion by both parties regarding whether or not AFSCME's leafleting was disruptive, or
7 The University erroneously cites the standard as whether AFSCME's conduct had an
effect on existing terms and conditions of employment. This ignores the critical part of the test
that serves to establish the difference between a change in policy and an isolated breach of the
agreement.
8

appropriate for the locations where it was conducted, the record does not contain facts that
clearly show that leafleting at the entrance
of
the UCSF Medical Center violated the campus
regulations.
With respect to UCLA, the campus regulations detail six specific locations around the
medical center as being the only locations where leafleting (and other related activity) is
allowed. The charge alleges, and AFSCME does not dispute, that leafleters were located in
areas other than those allowed by the local regulations. Therefore, AFSCME arguably was in
breach
of
the CBA when it began the leafleting campaign on the UCLA campus.
However, even
if
the leafleting at both campuses was in violation
of
campus access
regulations, the charge indicates the leafleters complied with University directives to move
away from prohibited areas. These facts do not demonstrate that AFSCME's conduct
amounted to anything more than an isolated breach
of
the CBA. There are no facts to show
that AFSCME continued to leaflet after the University informed the leafleters they were in
prohibited areas. 	Consequently, the charge does not establish that AFSCME's conduct
demonstrated a generalized effect or continuing impact on terms and conditions
of
employment. Accordingly, the charge does not establish a prima facie case
of
an unlawful
unilateral change in policy.
ORDER
The unfair practice charge in Case No. SF-CO-164-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
9