Regents of the University of California (Irvine) * * * Overruled by Contra Costa County Fire Protection District (2019) PERB Decision 2632-M (PERB 2177H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COALITION OF u'NIVERSITY EMPLOYEES,
Charging Party,
V.
REGENTS OF
THE
UNIVERSITY OF
CALIFORNIA (IRVINE),
Respondent.
Case No. SF-CE-931-H
PERB Decision No. 2177-H
March 29, 2011
Appearance: Beeson, Tayer & Bodine by Dusty L. Collier, Attorney, for Coalition
of
University Employees.
Before Dowdin Calvillo, Chair; McKeag
a.11d
Miner, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board)
on
appeal by the Coalition
of
University Employees (CUE)
of
a Board
agent's dismissal
of
its unfair practice charge. The charge, as amended, alleged that
the
Regents
of
the University
of
California (Irvine) (University) violated the Higher Education
Employer-Employee Relations Act (HEER,t\)1 when it: (1) granted a bonus to non-represented
employees at its Irvine campus without offering the same bonus to CUE-represented
employees, and (2) announced the bonus to employees via email and the campus website. The
Board agent dismissed the charge on the basis that it did not state a prima facie case
of
discrimination or interference.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
* * * Overruled by Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M * * *

The Board has reviewed the dismissal and the record in light of CUE' s appeal and the
relevant law.2 Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
BACKGROUND
CUE represents approximately 14,000 employees in the University's clerical and allied
services (CX) bargaining unit. The collective bargaining agreement (CBA) between CUE and
the University expired on October 30, 2008. The parties bargained over a successor agreement
from August 2008 until December 7, 2009, when PERB certified that the parties were at
impasse. The parties then proceeded to mediation pursuant to HEERA section 3590.
In the spring of 2009, the University began formulating plans for bridging an
anticipated budget gap for the 2009-2010 fiscal year. On July 16, 2009, the University
approved a salary reduction/furlough program to be implemented on September 1, 2009. 	Soon
after, the University began negotiating with employee organizations over the program. 	\Vhen
CUE and the University failed to reach agreement on the furloughs by September 1, the
University unilaterally implemented "temporary layoffs" of CUE-represented employees. 3 In
December, CUE and the University reached agreement regarding the effects of the furlough
program. The negotiations over the furloughs occurred concurrently with the bargaining
between CUE and the University for a successor CBA.
Attached to CUE's appeal is a declaration from Mary Higgins (Higgins), chief
steward for CUE at the University's San Francisco campus. "Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence."
(PERB Reg. 32635(b).*) CUE claims that the Board should accept the declaration because
CUE did not have an opportunity to respond to the Board agent's conclusion in the dismissal
letter that the Staff Recognition and Development Program (SRDP) had been in existence since
2007. 	However, the Board agent also stated this conclusion in the warning letter; therefore
CUE could have addressed the conclusion in its amended charge. We thus find no good cause
to accept Higgins' declaration or the allegations based on it in the appeal itself. (*PERB regs.
are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
3 This action is the subject of PERB Case No. SF-CE-905-H.
2

On November 20, 2009, Paige Macias (Macias), Interim Assistant Vice Chancellor of
Human Resources at the University's Irvine campus, sent the following email to campus
"Officers and Administrators":
UC Irvine will soon be distributing funds allocated for the 2008-
09 Staff Recognition and Development Program [SRDP]. To
show appreciation for the significant challenges that non-
represented staff have met, the campus is pleased to provide $600
(subject to normal income tax withholding) to eligible staff on
Monday, December 7, 2009. Eligible employees include all
regular status (non-probationary as of December 1, 2009), non-
represented, campus career staff employees whose annual base
salary is less than $100,000. Contract and represented employees
are not eligible.
The Staff Recognition and Development Program is administered
locally by the campus and is based on UC Office of the President
guidelines. Program funds are derived from departmental benefit
assessments, not individual employee contributions. In previous
years, program funds were allocated for incentive awards or
professional development. This year, campus leadership decided
to distribute program funds - in uniform amounts - to all eligible
staff employees to show the University's appreciation for their
service during these challenging times. [4l
(Emphasis in original.)
On December 3, 2009, the University posted "2009 Staff Recognition and Development
Program - Guidelines" on the "Simple Navigational Administrative Portal" (SNAP) webpage
for the Irvine campus. The posting contained the same information as Macias' November 20
email, with the language "Contract and represented staff and SMG members are not eligible"
in bold type.
DISCUSSION
The amended charge alleged that the University discriminated against CUE-represented
employees and interfered with their protected rights when it paid the $600 SRDP bonus to non-
The only portion of the email omitted is contact information and a website address
where more information can be found.
3

represented employees; CUE further alleged that the email and website postings about the
SRDP bonus were coercive. The Board agent concluded that the charge failed to state a prima
facie case
of
discrimination or interference. For the following reasons, we agree.
1.
	Discrimination
In analyzing whether the University discriminated against CUE-represented employees,
the Board agent applied the standard set forth in Novato Unified School District (1982) PERB
Decision No. 210. The Board has recently held, however, that when a charge alleges
discrimination between groups
of
employees based on one group's protected activity, it is
appropriate to apply the standard from Campbell Municipal Employees Association
v.
City
of
Campbell (1982)
131
Cal.App.3d 416 (Campbell). (State
of
California (Department
of
Personnel Administration) (2011) PERB Decision No. 2106a-S.) Because CUE's charge
alleged that the University paid non-represented employees a $600 bonus it did not pay or offer
to CUE-represented employees, we analyze CUE's allegations under the Campbell standard.
To establish a prima facie case under the Campbell standard, the charging party must
show that the employer engaged in conduct which could have harmed employee rights to some
extent. In State
of
California (Department
of
Personnel Administration), supra, PERB
Decision No. 2106a-S, the Board addressed whether the State's provision
of
lower-cost dental
benefits to bargaining unit employees who were not union members discriminated against unit
employees who had exercised their right to join the union. Finding that the difference in dental
benefit costs could influence an employee's choice to join the union or remain a union
member, the Board held that the disparate treatment of union members and non-union
members within the same bargaining unit established a prima facie case of discrimination
under Campbell.
4

This case differs from State
of
California (Department
of
Personnel Administration),
supra, in one crucial respect: unlike the employees in that case, mere resignation
of
union
membership would
not make a CUE-represented employee eligible for the SRDP bonus. 	This
is so because the SRDP program excludes all represented employees, whether or not
they
are
members
of
the employee organization that represents their bargaining unit. Thus, to
be
eligible for the SRDP program, a represented employee would have to either: (1)
move to
a
non-represented position; or (2) convince a majority
of
other employees to decertify
the
exclusive representative. Accordingly, we find that an employer's grant
of
a benefit
exclusively to non-represented employees does not constitute discrimination per se
under
the
Campbell standard. 5
Nor
does the charge allege any other facts which suggest that payment
of
the
SRDP
bonus to non-represented employees could harm the rights
of
CUE-represented employees to
some extent. This case is thus distinguishable from The Regents
of
the University
of
California
(1997) PERB Decision No. 1188-H, and San Leandro Police Officers Association
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro), both
of
which CUE relies on
in
its
appeal. 	In The Regents
of
the University
of
California, supra, the University told non-
represented employees that they would not receive a planned salary increase
if
they chose
union representation in an upcoming election. The Board held that this statement interfered
with employee rights because it suggested employees would lose a benefit
if
they exercised
their right to select union representation. Here, represented employees currently are
not
5 In reaching the same conclusion, the National Labor Relations Board noted that if it
were to hold that an employer's grant
of
a benefit exclusively to non-represented employees
was a per se violation, "an employer would effectively be required to grant its unionized
employees any benefit that the nonunit employees possessed." (Dallas Morning News (I 987)
285 NLRB 807, 808-809.)
5

eligible for the SRDP bonus and thus there can be no suggestion by the University that
represented employees will lose that benefit if they engage in protected activity.
Further, the charge does not establish that the University indicated the SRDP bonus
cannot be gained through collective bargaining. In San Leandro, the city granted a "deferred
management compensation" benefit equal to three percent of base salary to all management
employees who were not members of a bargaining unit. (Id. at p. 556.) When the management
employees who did not receive the benefit protested, the city manager responded in writing:
"The City Council feels it was made clear to you that in your choosing to be represented by
your respective associations, you would not additionally be eligible for salary and benefit
programs developed for management personnel not represented by formally recognized
employee organizations." (Ibid.) The unions representing the affected employees then
requested that the city meet and confer with them over providing the benefit to the employees,
but the city refused to meet with them. (Id. at p. 557.) The court held that the city's refusal to
grant the benefit to represented management employees constituted discrimination and
interference in violation of the Meyers-Milias-Brown Act (MMBA). 6 (Id. at p. 558.)
CUE's charge in this case alleged, "The University refused to entertain any proposal
from CUE that included bonuses or salary increases." However, the charge did not allege that
CUE made a proposal including bonuses that was rejected by the University. Nor do the
allegations establish that CUE requested to bargain over including CX unit employees in the
SRDP plan. Thus, the charge failed to allege facts showing that the University refused to
bargain over providing the SRDP bonus, or a comparable bonus, to CX unit employees, or that
it in any way indicated that such a bonus could not be obtained through collective bargaining.
Because the charge did not show that payment of the SRDP bonus could harm CX unit
6 The MMBA is codified at Government Code section 3500 et seq.

employees' rights to some extent, it failed to establish a prima facie case of discrimination
under the Campbell standard.
2. 	Interference
To establish a prima facie case of interference with employee rights under HEERA, the
charging party must establish that the respondent's conduct tends to or does result in some
harm to employee rights granted under the statute. (The Regents of the University of
California, supra, PERB Decision No. 1188-H, citing Carlsbad Unified School District (1979)
PERB Decision No. 89.) A finding of coercion does not require evidence that the employee
actually felt threatened or intimidated or was in fact discouraged from participating in
protected activity. (Clovis Unified School District (1984) PERB Decision No. 389.)
a. 	Bonus Payment
CUE alleged that the $600 SRDP bonus payment to non-represented employees
interfered with the rights of CUE-represented employees. In State of California (Department
of Personnel Administration), supra, PERB Decision No. 2106a-S, the Board observed that
"the Carlsbad and Campbell standards are nearly identical and will in most cases lead to the
same result." This is one of those cases. Thus, for the reasons discussed above, we find that
the charge failed to establish a prima facie case of interference based on the bonus payment.
b. 	Email and Website Posting
CUE also alleged that the email from Macias to non-represented employees and the
University's posting of information about the $600 SRDP on SNAP interfered with employee
rights because they suggested that employees who do not exercise their right to union
representation will receive benefits not granted to represented employees.
Employer speech causes no cognizable harm to employee rights unless it contains
"threats ofreprisal or force or promise of a benefit." (Chula Vista City School District (1990)
7

PERB Decision No. 834.) Whether the employer's speech is protected or constitutes a
proscribed threat or promise is determined by applying an objective rather than a subjective
standard. (California State University (1989) PERB Decision No. 777-H.) Thus, "the
charging party must show that the employer's communications would tend to coerce or
interfere with a reasonable employee in the exercise of protected rights." (Regents of the
University of California (1983) PERB Decision No. 366-H.) Further, statements made by an
employer are to be viewed in their overall context (i.e., in light of surrounding circumstances)
to determine if they have a coercive meaning. (Los Angeles Unified School District (1988)
PERB Decision No. 659.)
On its face, neither Macias' email nor the SN AP posting contains a threat of reprisal or
force, or promise of benefit. CUE argues nonetheless that the email and posting have a
coercive effect when viewed in the context of the parties' inability to agree on furloughs and a
successor CBA. CUE focuses in particular on the language that the bonus is being provided to
"show appreciation for the significant challenges that non-represented staff have met." 	CUE
asks us to infer that the true meaning of this statement is that the University values its non-
represented employees more than its represented employees and is subtly communicating to
represented employees that they will not receive benefits if they continue to use union
representation. However, even when the statements are viewed in the context of the parties'
inability to reach agreement at the bargaining table, there is no basis for drawing such an
inference. Accordingly, the charge failed to establish a prima facie case of interference based
on the Macias email and SNAP posting.
8

ORDER
The unfair practice charge in Case No. SF-CE-931-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Miner joined in this Decision.
9