Regents of the University of California (University Professional and Technical Employees, Communication Workers of America, Local 9119) (PERB 2646H)

UNIVERSITY PROFESSIONAL & TECHNICAL
EMPLOYEES COMMUNICATION WORKERS
OF AMERICA LOCAL 9119,
Charging Party, 	Case No. SF-CE-1211-H
v. 	PERB Decision No. 2646-H
June 3, 2019	REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Appearances: Sloan Sakai Yeung & Wong by Timothy G. Yeung, Attorney, for Regents of the
University of California; Leonard Carder by Andrew Ziaja, Attorney, for University
Professional and Technical Employees, CWA Local 9119.
Before Banks and Paulson, Members.
DECISION1
BANKS, Member: This technical refusal-to-bargain case2 is before the Public
Employment Relations Board (PERB or Board) for decision on a stipulated record, pursuant to
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1 Pursuant to the Higher Education Employer-Employee Relations Act (HEERA),
section 3563, subdivision (j), the Board has delegated this case for decision to a two-member
panel of the Board. (HEERA is codified at Government Code section 3560 et seq.) Unless
otherwise specified, all further statutory references are to the Government Code.
2 A “technical” refusal to bargain results from an employer’s decision to engage in an
unfair practice in order to obtain judicial review of an underlying unit determination. (Gov.
Code, § 3564 subd. (a) [“No employer or employee organization shall have the right to judicial
review of a unit determination except . . . (2) when the issue is raised as a defense to an unfair
practice complaint”]; Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th
1161, 1169, cert. denied (2018) 138 S.Ct. 1451 [discussing technical refusals to bargain in the
context of the California Agricultural Labor Relations Act, Labor Code, § 1140 et seq.].)
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

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PERB Regulation section 32215.3 In a prior related case involving these parties, the Board
denied the Regents of the University of California’s (University) appeal of an administrative
determination (AD) from the Board’s Office of the General Counsel (OGC), and granted the
unit modification petition filed by the University Professional & Technical Employees,
Communication Workers of America Local 9119 (UPTE). (Regents of the University of
California (2017) PERB Order No. Ad-453-H (Regents).) In so doing, the Board modified
UPTE’s existing bargaining unit of technical employees (TX unit) to include the University’s
Systems Administrator classifications.
The present complaint alleges that the University refused to recognize or bargain with
UPTE as the exclusive representative of the Systems Administrators, and that the University
has thus failed to comply with the Board’s order in Regents. Indeed, the University readily
admits that it has refused to bargain with UPTE, asserting that it intends to test the propriety of
Regents by engaging in a technical refusal to bargain. In view of this admission, it is evident
that the University violated the Higher Education Employer-Employee Relations Act
(HEERA) as alleged in the complaint.
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3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. While most unfair practice complaints are submitted to an Administrative Law
Judge for a formal hearing and proposed decision, Regulation 32215 provides, in relevant part,
that the Board may transfer a case to itself for a final decision in the first instance. (Victor
Valley Community College District (2002) PERB Order No. Ad-317, pp. 1-2.) We exercised
our discretion to do so in this case because there is no material factual dispute and the
respondent has admitted its refusal to bargain.

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FACTUAL AND PROCEDURAL HISTORY
The following facts are drawn from the Board’s case files in this matter and Regents
supra, PERB Order No. Ad-453-H,4 together with the relevant stipulated facts submitted by
the parties. The TX unit is a system-wide bargaining unit of non-supervisory employees who
provide technical support services for academic and scientific research throughout the
University system and the Lawrence Berkeley National Laboratory. PERB certified UPTE as
the exclusive representative of the TX Unit on December 1, 1994.
On December 22, 2016, UPTE filed with PERB a unit modification petition requesting
that the TX unit be modified to include the newly-created Systems Administrator 1, 2 and 3
classifications. As of December 22, 2016, when UPTE filed its unit modification petition, the
TX unit included 4,059 employees, and the petitioned-for Systems Administrator 1, 2 and 3
classifications included 325 employees located at 12 of the University’s campuses, laboratories
and medical centers. At the five locations where the process has not yet been completed, the
University estimated that between 172 and 190 employees would eventually be reclassified as
Systems Administrators.
On May 23, 2017, the OGC issued the AD granting UPTE’s unit modification petition,
to which the University filed a timely appeal. On September 29, 2017, the Board issued
Regents, denying the University’s appeal and affirming the AD. Specifically, the Board
rejected the University’s arguments challenging the application of the “ten percent rule” found
in PERB Regulation 32781. The Board held that UPTE was permitted to add the Systems
Administrators to the TX unit without proof of support because the employees in those
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4 PERB may take administrative notice of matters in its own files, including Board
decisions from other cases. (County of Santa Clara (2015) PERB Decision No. 2431-M, p. 5,
fn. 5.)

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classifications constituted less than 10 percent of the overall TX unit as of the date UPTE filed
the petition. (Regents, supra, PERB Order No. Ad-453-H, pp. 6-13.) Additionally, the Board
rejected the University’s contention that the Systems Administrators did not share a
community of interest with the other employees in the TX unit. (Id., pp. 13-15.) Thus, the
Board agreed with the AD and concluded that UPTE’s petition should be granted.
On October 19, 2017, pursuant to HEERA section 3564 and PERB Regulation 32500,
the University asked the Board to join in a request for judicial review of Regents, supra, PERB
Order No. Ad-453-H, which the Board declined to do on February 27, 2018. (Regents of the
University of California (2018) PERB Order No. JR-28-H.) Despite these developments, the
University did not comply with its duty to recognize and bargain with UTPE.
Rather, on August 17, 2018, the University announced that it would not recognize
UPTE as the representative of the Systems Administrators or bargain over their terms and
conditions of employment. As stated in a letter by Peter Chester, the University’s Executive
Director for Labor Relations, “the University has decided to engage in a technical refusal to
bargain in order to obtain judicial review of PERB’s order [in Regents].”
On January 22, 2019, UPTE filed the charge in this case, and OGC issued a complaint
on January 25. On April 10, the parties submitted their joint stipulated facts directly to the
Board pursuant to PERB Regulation 32215. Additionally, the University filed evidence in the
form of declarations, to which UPTE objected. The parties filed their briefs on April 30, at
which time the matter was submitted for decision.
DISCUSSION
“PERB decisional law has not sanctioned an employer’s refusal to recognize an
exclusive bargaining representative based on the employer’s unilateral determination that the

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unit is, for some reason, inappropriate.” (Los Angeles Unified School District (2007) PERB
Decision No. 1884, p. 2 (citing Regents of the University of California (1989) PERB Decision
No. 722-H).) Here, the University admits that it has failed and refused to recognize and
bargain with UPTE because it disagrees with the Board’s order in Regents. Such conduct
contravenes the mandates of HEERA section 3571, subdivision (c), which requires higher
education employers meet and confer in good faith with exclusive representatives. The
University attempts to justify this conduct by arguing that the Board wrongly decided Regents
and should never have granted UPTE’s unit modification petition. However, as the University
acknowledges, all of its contentions in this regard were raised and rejected in the underlying
representation proceeding.
Specifically, the University contends that the Board erred in Regents by failing to count
all the employees performing the work of Systems Administrators at the time it determined that
these employees constituted less than 10% of UPTE’s existing bargaining unit. But we
considered and rejected this claim in Regents: “Although the University estimated that
additional employees would be added to the [Systems Administrators] classification at a later
time, or that additional employees were already performing the Systems Administrator duties
as of December 22, 2016, it was unable to provide PERB and UPTE a complete and accurate
list at the time the Office of the General Counsel made its administrative determination,” and
thus could not delay or defeat the petition on this basis. (Regents, supra, PERB Order No.
Ad-453-H at p. 21.)
Secondly, the University argues that UPTE purposely structured its unit modification
petitions to evade the requirement to furnish proof of support for accretions involving more
than 10% of the existing unit. Again, in Regents, we considered and rejected this argument,

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concluding that UPTE’s “motive or its decision to avail itself of PERB’s unit modification
procedures by accreting multiple groups of employees at different times” was irrelevant under
PERB Regulation 32781. (Regents, supra, PERB Order No. Ad-453-H at p. 11.)
Finally, the University restates its contention that the Systems Administrators do not
share a community of interest with the other employees in the TX unit. In Regents, we
concluded that the underlying AD more than adequately addressed this question. (Regents,
supra, PERB Order No. Ad-453-H at pp. 13-15.) Thus, all of the University’s defenses to the
instant charge were previously considered and rejected during the underlying representation
proceeding.
Moreover, the University has not proffered any newly discovered and previously
unavailable evidence,5 nor does it allege any special circumstances that would require the
Board to reexamine the decision made in the underlying unit modification proceeding. (See
Regents of the University of California, supra, PERB Decision No. 722-H [to effectuate a
change in a unit, an employer must show newly discovered or previously unavailable evidence
or special circumstances].) We therefore find that the University has not raised any
representation issue that is a proper subject for litigation in this unfair practice proceeding.
For the foregoing reasons, we find that the University’s refusal to recognize and
bargain in good faith with UPTE is a violation of HEERA section 3571, subdivisions (b) and
(c). By this same conduct, the University has unlawfully interfered with employees because
their exercise of representational rights in violation of HEERA section 3571, subdivision (a).
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5 None of the University’s proffered declarations contains any new, previously
unavailable evidence regarding the propriety of the unit determination or resulting certification
in Regents, supra, PERB Order No. 453-H. On the contrary, all of them simply repeat
contentions that the University made, and the Board rejected, during the underlying unit
modification proceeding.

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REMEDY
UPTE requests that we order a make whole remedy, including attorneys’ fees and
litigation costs. While such fees may be awarded where the unfair conduct is “without
arguable merit and pursued in bad faith” (City of Alhambra (2009) PERB Decision
No. 2036-M), we do not believe this is such a case, at least at present, because the University
has invoked HEERA section 3564, subdivision (a)(2), which provides that an employer cannot
seek judicial review of a unit determination except “when the issue is raised as a defense to an
unfair practice complaint.” Thus, the University’s position, viz. that it must refuse to bargain
in order to obtain judicial review of the underlying unit modification decision in Regents,
supra, PERB Order No. Ad-453-H has at least minimal merit under the statute.6
In any event, a finding of overall subjective bad faith is unnecessary, if not irrelevant,
to the issue before us because the University’s refusal to bargain frustrates the fundamental
purposes of HEERA and is anathema to collective bargaining. (California State Employees’
Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 934-935, citing NLRB v.
Katz (1962) 369 U.S. 736.) In this, the University’s unfair practice is anything but technical,
rather it is serious and persistent. Until remedied, such misconduct could predictably
contaminate all aspects of the parties’ relationship and prevent the possibility of good faith
negotiations. (See, e.g., Fresno County In-Home Supportive Services Public Authority (2015)
PERB Decision No. 2418-M, p. 54 [a bona fide overall impasse is predicated on good faith
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6 We do not mean to suggest that attorneys’ fees or other forms of make-whole relief
are categorically unavailable in these cases. On the contrary, we will not hesitate to fashion a
suitable remedy where it is evident that an employer has engaged in a technical refusal to
bargain for frivolous reasons or for the purpose of delaying or stifling union organization.
However, the stipulated record in this case does not support such a finding. (See J. R. Norton
Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1.)

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negotiation and precluded by existence of unremedied unfair practices that impact
bargaining].)
In light of the record in this case and the University’s admission of its refusal to
bargain, we will order it to cease and desist its unlawful conduct, negotiate with UPTE upon
demand, and post a notice to all unit employees advising them of this decision.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that The Regents of the University of California (University) violated the
Higher Education Employer-Employee Relations Act (HEERA), Government Code section
3571, subdivisions (a), (b), and (c), by refusing to recognize and bargain in good faith with the
University Professional & Technical Employees, Communication Workers of America
Local 9119 (UPTE).
Pursuant to HEERA section 3563.3, it is hereby ORDERED that the University shall
A. 	CEASE AND DESIST FROM:
1. 	Refusing to recognize or negotiate in good faith with UPTE as the
exclusive representative of all classifications and positions within the Technical unit (TX unit);
2. 	By the same conduct, interfering with the rights of employees to be
represented by their exclusive representative; and
3. 	Denying UPTE the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:

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1. 	Recognize and upon request meet and negotiate with UPTE as the
exclusive representative of all employees in the TX unit, including Systems Administrators 1,
2, and 3.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily placed,
copies of the Notice attached hereto as an Appendix, signed by an authorized agent of the
University indicating that it will comply with the terms of this Order. In addition to 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
employees represented by UPTE. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that this Notice is not reduced
in size, altered, defaced or covered with any other material.
3. 	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 UPTE.
Member Paulson joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
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.
After a hearing in Unfair Practice Case No. SF-CE-1211-H, University Professional &
Technical Employees, Communication Workers of America Local 9119 (UPTE) v. The Regents
of the University of California (University), in which all parties had the right to participate, it
has been found that the University violated the Higher Education Employer-Employee
Relations Act (HEERA), Government Code section 3560 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to recognize or negotiate in good faith with UPTE as the
exclusive representative of all classifications and positions within the Technical unit
(TX unit);
2. 	By the same conduct, interfering with the rights of employees to be
represented by their exclusive representative; and
3. 	Denying UPTE the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1. 	Recognize and upon request meet and negotiate with UPTE as the
exclusive representative of all employees in the TX unit, including Systems
Administrators 1, 2, and 3.
Dated: _____________________ 	Regents of the University of California
By: _________________________________
Authorized Agent