Regents of the University of California (PERB 2852H)

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,
Respondent.
Case No. SF-CE-1317-H
PERB Decision No. 2852-H
February 9, 2023
Appearances: Leonard Carder by Jennifer Keating, Attorney, for University
Council-American Federation of Teachers; Paul Plevin Quarles by Sandra L.
McDonough, Attorney, for Regents of the University of California.
Before Banks, Chair; Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) for a decision based on the evidentiary record from a hearing
before an administrative law judge (ALJ). The complaint issued by PERB’s Office of
the General Counsel (OGC) alleged that the Regents of the University of California
violated the Higher Education Employer-Employee Relations Act (HEERA)1 by no
longer permitting employees at its Santa Cruz campus “to hold concurrent non-exempt
1 HEERA is codified at Government Code section 3560 et seq. All further
undesignated statutory references are to the Government Code.

2
staff and exempt, academic instructional positions.”2 The complaint further alleged that
the University violated HEERA and PERB’s unit modification regulations by unilaterally
modifying the Non-Senate Faculty (NSF) Unit represented by University
Council-American Federation of Teachers (UC-AFT).
We have reviewed the entire administrative record and considered the parties’
arguments in light of applicable law. As explained below, we conclude that the
University made an unlawful unilateral change by implementing a new concurrent
appointment policy at its Santa Cruz campus (UCSC) without providing UC-AFT notice
and an opportunity to meet and confer over the decision. We also conclude that the
University unlawfully modified the NSF Unit by removing one position from the unit.
FACTUAL FINDINGS
The University is an employer under HEERA section 3562, subdivision (g).
UC-AFT is an exclusive representative under section 3562, subdivision (j). UC-AFT
represents the University’s statewide NSF Unit. The majority of classifications in the
NSF Unit are lecturers.3
NSF Unit positions typically fall under the professional exemption to the
minimum wage and overtime pay requirements of the FLSA.4 Non-instructional staff,
2 As explained post, “non-exempt” and “exempt” refer to whether an employee
is subject to the minimum wage and overtime pay requirements of the federal Fair
Labor Standards Act of 1938 (FLSA). The FLSA is codified at 29 U.S.C. § 201 et seq.
3 Accordingly, although the bargaining unit contains non-lecturer classifications,
for convenience we refer to bargaining unit positions as “lecturer” positions.
4 The FLSA’s minimum wage and overtime pay requirements do not apply to “any
employee employed in a bona fide executive, administrative, or professional capacity.”

3
depending on their duties, are usually subject to the FLSA’s minimum wage and
overtime requirements, commonly referred to as “non-exempt” status.5 Prior to the
events giving rise to this case, non-instructional staff would occasionally receive
concurrent appointments as NSF Unit lecturers to teach particular courses.
UCSC Prepares to Transition to the University-Wide Payroll System
Before January 1, 2020, UCSC had its own campus-based payroll system that
allowed staff to enter an exempt lecturer appointment and a non-exempt,
non-instructional appointment for the same individual. The payroll system did not alert
staff when an individual held appointments with different FLSA statuses. Thus, the
supervisors for each appointment would not necessarily be aware that the individual
held another appointment at UCSC. At that time, there was no written policy governing
such concurrent appointments.
In 2019, UCSC was preparing to transition from its campus-based payroll
system to the University-wide UCPath payroll system on January 1, 2020. Unlike the
campus-based system, UCPath required each employee to have a single FLSA
status, and would default to exempt or non-exempt status based on which
appointment constituted the majority of the employee’s work time. Accordingly, UCSC
decided to analyze each concurrent appointment to determine whether the default
(29 U.S.C. § 213, subd. (a)(1).) Lecturers at institutions of higher education are subject
to the professional exemption. (29 C.F.R. § 541.303, subd. (a).)
5 An employee who does not fall under one of the exemptions in section 213 of
title 29 of the United States Code is subject to the FLSA’s minimum wage and
overtime pay requirements. (Klem v. County of Santa Clara, California (9th Cir. 2000)
208 F.3d 1085, 1089.)

4
status assigned by UCPath was appropriate.
On September 27, 2019, UCSC Director of Employee and Labor Relations
Jennifer Schiffner sent a letter to “Union Leaders and Campus Liaisons,” including
UC-AFT Field Representative Jeb Purucker, about the impending transition to
UCPath. The letter stated that as part of the transition, UCSC would “come into
compliance with the [FLSA] by ensuring employees only maintain one FLSA status as
of December 1, 2019.” After acknowledging “there are many employees on campus
with multiple staff or academic appointments which cross bargaining units and FLSA
statuses,” Schiffner wrote that this did not pose a problem when two or more
appointments have the same FLSA status, but it did in cases where an employee
concurrently held an exempt status appointment and a non-exempt status
appointment. In such cases, Schiffner wrote, UCSC would assign the employee a
single FLSA status to comply with federal law. According to Schiffner, this assignment
“may impact the individual’s pay period by moving from bi-weekly to monthly, the need
for an employee to track their time, and the ability to earn overtime if the individual
moves from an exempt to nonexempt title code.” Schiffner said UCSC was drafting
guidelines for determining which FLSA status to assign and would “notify impacted
individuals and their union representatives about any changes to FLSA statuses that will
occur on December 1, 2019.” The notice, Schiffner wrote, “will include the title codes
and positions, if the employee will be considered exempt or non-exempt, information
as to whether the employee is required to report time, whether the employee is eligible
for overtime, [and] the anticipated pay check dates (biweekly or monthly).”
Attached to the letter were reference guides, also called matrices, developed by

5
the University’s Berkeley campus to determine the proper FLSA status for employees
with different combinations of instructional and non-instructional appointments. On the
matrix for “Staff and Non-Senate Titles,” the entry for a non-exempt status employee
who is concurrently appointed as a lecturer states: “FLSA Status determined based
upon evaluation of combined responsibilities and appointment percentage, duration,
and salary. Whichever position has the greatest appointment percentage and longest
duration will generally drive the FLSA status.”
Based on the information provided in the September 27, 2019 letter and the
attached matrices, UC-AFT determined that the proposed changes would not prevent
non-instructional staff from continuing to be concurrently appointed as lecturers.
UC-AFT therefore did not request to meet and confer over the proposed policy
change.
UCSC Cancels Maya Gupta’s Lecturer Appointment
Since February 2016, Maya Gupta has held a part-time, 20-hour per week
appointment as a public service desk assistant at the UCSC library. This position is
not exempt from the FLSA’s overtime requirements. In addition to her library position,
UCSC appointed Gupta as a lecturer to teach one or two courses in the winter and
spring quarters of 2017; the winter, spring, and fall quarters of 2018; and the winter
and fall quarters of 2019.
On December 9, 2019, Gupta received an e-mail from the library’s human
resources manager advising that, because her library appointment was 50 percent time
while her lecturer appointment was 37.5 percent time, the library appointment would be
considered her primary position and she would continue to be subject to the FLSA’s

6
overtime requirements. The e-mail stated Gupta’s FLSA status could vary from quarter
to quarter depending on her academic appointment but any such changes would only
impact her eligibility for overtime.
In September 2020, UCSC appointed Gupta to a lecturer position to teach a
Philosophy course in the 2021 winter quarter. On October 19, 2020, human resources
advised the Philosophy Department that Gupta could not be concurrently appointed as
a lecturer and as non-instructional staff. After further discussion with human resources,
Gupta was informed that “moving forward, we will be unable to offer you a lecturer
position (which is an exempt position) while you are hired in a non-exempt staff
position.”
UCSC Announces a Change to Its Concurrent Appointment Policy
On November 25, 2020, Schiffner sent a letter to union leaders and
representatives, including Purucker, announcing UCSC was “refining its procedures
around holding concurrent exempt and non-exempt positions to ensure continued
compliance with the FLSA.” Schiffner wrote that after conducting the analysis outlined
in her September 27, 2019 letter, UCSC had identified a “small subset of concurrent
non-exempt staff appointments and instructional titles” that posed “significant difficulties
tracking and maintaining overtime records in UCPath and our time and attendance
system, CruzPay. To be concrete, it is not feasible to track time for instructional titles.”
Schiffner then announced: “beginning with Winter Quarter 2021, UC Santa Cruz will not
allow employees to hold concurrent non-exempt staff and exempt, academic
instructional positions.”
On December 3, 2020, Purucker sent Heather Dawson at UCSC Labor

7
Relations a letter insisting that UCSC cease implementing the new concurrent
appointment policy, demanding to meet and confer over the policy change, and
requesting certain items of information related to NSF Unit members holding
concurrent non-exempt staff positions. Schiffner responded for Dawson on
December 18, 2020, asserting that the decision was outside the scope of representation
and asking UC-AFT to identify effects of the decision over which it wished to bargain.
On January 21, 2021, Purucker wrote to Schiffner disputing UCSC’s legal
arguments and contending that UCSC had unlawfully modified the NSF Unit by
excluding lecturers with concurrent non-instructional appointments. Schiffner responded
by letter on February 23, 2021, reiterating UCSC’s legal arguments and asking for
clarification of any effects of the decision UC-AFT wished to bargain.
PROCEDURAL HISTORY
UC-AFT filed this charge on May 12, 2021, alleging that on November 25, 2020,
the University made an unlawful unilateral change in violation of HEERA section 3571,
subdivision (c) by deciding to no longer allow NSF Unit members at UCSC to hold
concurrent appointments as FLSA-exempt instructors and FLSA-subject
non-instructional staff. The charge also alleged violations of HEERA section 3571,
subdivisions (a) and (b), as well as an unlawful unit modification in violation of PERB
Regulation 32781.6
The University filed a position statement on July 9, 2021. The University argued
6 PERB Regulation 32781 allows an employee organization, an employer, or
both to file a petition to modify the composition of an existing bargaining unit. (PERB
Regulations are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)

8
that no written agreement or past practice permitted concurrent appointments in
FLSA-exempt and non-exempt positions, the decision was outside the scope of
representation, and UC-AFT waived its right to bargain the decision’s negotiable
effects.
On January 7, 2022, OGC issued the complaint, alleging that the University
violated HEERA sections 3571, subdivisions (a) and (c), and PERB Regulation 32781,
by no longer allowing employees to concurrently hold FLSA-exempt lecturer and
non-exempt staff appointments at its Santa Cruz campus. The University filed an
answer to the complaint in which it admitted jurisdictional facts and some of the
substantive allegations, while denying other allegations and asserting affirmative
defenses. The University did not assert the statute of limitations as an affirmative
defense.
OGC conducted an informal settlement conference on February 7, 2022, but no
settlement resulted. Shortly thereafter, the case was assigned to the Division of
Administrative Law for formal hearing.
An ALJ held a formal hearing by videoconference on June 21, 2022. The
parties filed simultaneous post-hearing briefs on September 12, 2022.
On September 15, 2022, the Board’s Appeals Office notified the parties that the
case had been placed on the Board’s docket for decision.7
7 PERB Regulation 32215 allows the Board itself to direct a Board agent to
“submit the record of the case to the Board itself for decision.” PERB Regulation
32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the
record of hearing.”

9
DISCUSSION
I. 	Unilateral Change to Concurrent Appointment Policy
HEERA section 3570 requires a higher education employer or its designee to
meet and confer in good faith “with the employee organization selected as exclusive
representative of an appropriate unit on all matters within the scope of representation.”
Refusal or failure to meet and confer as required by section 3570 is an unfair practice.
(HEERA, § 3571, subd. (c).)
“An employer’s unilateral change in terms and conditions of employment within
the scope of representation is, absent a valid defense, a per se refusal to negotiate
and a violation of HEERA.” (California State Employees’ Assn. v. Public Employment
Relations Bd. (1996) 51 Cal.App.4th 923, 934.) To prove a prima facie case of an
unlawful unilateral change, a charging party must show that: (1) the employer changed
or deviated from the status quo; (2) the change or deviation concerned a matter within
the scope of representation; (3) the change or deviation had a generalized effect or
continuing impact on represented employees’ terms or conditions of employment; and
(4) the employer reached its decision without first providing adequate advance notice
of the proposed change to the union and bargaining in good faith over the decision, at
the union’s request, until the parties reached an agreement or a lawful impasse.
(Regents of the University of California (2021) PERB Decision No. 2783-H, p. 18.)
The complaint issued by OGC alleged that the University made an unlawful
unilateral change when it adopted a policy that non-exempt, non-instructional staff at
UCSC could no longer hold a concurrent appointment as an exempt lecturer, without
providing UC-AFT advance notice of, or an opportunity to meet and confer over, the

10
decision and/or its effects. For the following reasons, we find the alleged violation.
A. 	Change or Deviation from Status Quo
A union can prove that an employer changed or deviated from the status quo by
showing: (1) deviation from a written agreement or written policy, (2) a change in
established past practice, or (3) a newly created policy or application or enforcement
of existing policy in a new way. (Regents of the University of California, supra, PERB
Decision No. 2783-H, p. 19.) It is undisputed that prior to September 27, 2019, there
was no written policy governing concurrent appointments in FLSA-exempt and
non-exempt positions at UCSC. Instead, the parties dispute whether there was a past
practice of allowing such concurrent appointments. UC-AFT contends there was a
well-established past practice, while the University argues that if such a practice
existed it did not meet the standard for enforceability under PERB precedent.
We need not resolve whether the University maintained a sufficiently consistent
past practice prior to September 27, 2019, because UCSC’s September 27, 2019
letter sets the status quo against which we measure the policy change announced in
UCSC’s November 25, 2020 letter, viz., the action alleged in the complaint to
constitute the unlawful unilateral change. The September 27, 2019 letter
acknowledged “there are many employees on campus with multiple staff or academic
appointments which cross bargaining units and FLSA statuses.” Specifically, there
were at least six NSF Unit Members who had held concurrent appointments as
non-exempt staff between 2018 and September 27, 2019. To resolve the problem that
concurrent appointments in FLSA-exempt and non-exempt positions posed for FLSA
compliance and UCPath recordkeeping, the letter said that in such cases UCSC would

11
assign the employee a single FLSA status. According to the letter, this assignment
“may impact the individual’s pay period by moving from bi-weekly to monthly, the need
for an employee to track their time, and the ability to earn overtime if the individual
moves from an exempt to nonexempt title code.” UCSC said it was drafting guidelines
for determining which FLSA status to assign and would “notify impacted individuals and
their union representatives about any changes to FLSA statuses that will occur on
December 1, 2019.” The notice, UCSC indicated, “will include the title codes and
positions, if the employee will be considered exempt or non-exempt, information as to
whether the employee is required to report time, whether the employee is eligible for
overtime, [and] the anticipated pay check dates (biweekly or monthly).” The matrices
attached to the letter showed that for a non-exempt status employee concurrently
appointed as a lecturer, FLSA status would be “determined based upon evaluation of
combined responsibilities and appointment percentage, duration, and salary.”
Notably, nowhere in its September 27, 2019 letter did UCSC indicate it was
considering a prohibition against concurrently holding a non-exempt staff position and
an exempt academic position. But its November 25, 2020 letter announced just such a
policy: “beginning with Winter Quarter 2021, UC Santa Cruz will not allow employees to
hold concurrent non-exempt staff and exempt, academic instructional positions.” The
November 25, 2020 letter thus changed the status quo set forth in the September 17,
2019 letter.
In its brief, the University characterizes the November 25, 2020 letter as merely
implementing the policy announced on September 17, 2019, of assigning each

12
employee a single FLSA status.8 Even if we view the November 25, 2020 letter as
consistent with the policy announced on September 17, 2019, the 2020 letter sets out
the new prohibition of concurrent appointments, which constitutes “application or
enforcement of existing policy in a new way,” thereby changing the status quo.
(Regents of the University of California, supra, PERB Decision No. 2783-H, p. 19.)
Either way, the first element of the unilateral change test is satisfied.
B. 	Scope of Representation
The scope of representation applicable to the University includes “wages, hours
of employment, and other terms and conditions of employment” but excludes
“[c]onsideration of the merits, necessity, or organization of any service, activity, or
program established by law or resolution of the regents or the directors, except for the
terms and conditions of employment of employees who may be affected thereby.”
(HEERA, § 3562, subd. (q)(1).) The “merits, necessity, or organization” language of
HEERA section 3562, subdivision (q)(1) recognizes “the right of employers to make
unconstrained decisions when fundamental management or policy choices are
involved.” (See Building Material & Construction Teamsters’ Union v. Farrell (1986)
41 Cal.3d 651, 663 [interpreting similar language in the Meyers-Milias-Brown Act,
8 The University adopts this characterization of the November 25, 2020 letter to
argue that the unfair practice charge was untimely because the University announced
the policy of assigning a single FLSA status on September 27, 2019. The University,
however, waived any untimeliness argument by not asserting the statute of limitations
as an affirmative defense in its answer. (Los Angeles Unified School District (2014)
PERB Decision No. 2359, p. 30.) Furthermore, there is no indication in the
September 27, 2019 letter that UCSC would prohibit employees from holding
concurrent positions, so there is no basis for finding that the policies set forth in the
2019 and 2020 letters were the same.

13
§ 3500 et seq.].)
Under HEERA, “[a] subject is within the scope of representation” “as a ‘term or
condition of employment’” “if: (1) it involves the employment relationship, (2) it is of
such concern to both management and employees that conflict is likely to occur and
the mediatory influence of collective bargaining is an appropriate means of resolving
the conflict, and (3) the employer’s obligation to negotiate would not unduly abridge its
freedom to exercise those managerial prerogatives (including matters of fundamental
policy) essential to the achievement of the employer’s mission. [Citation.]” (California
Faculty Assn. v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609, 616;
Regents of the University of California (2012) PERB Decision No. 2300-H, p. 21.)
As to the first element, a prohibition against concurrently holding a non-exempt
staff position and an exempt academic position necessarily “involves the employment
relationship” because it sets a mandatory criterion for appointment as a lecturer at
UCSC, i.e., that the appointee not also hold a non-exempt position. The University
contends, however, that its policy does not involve the employment relationship
because it governs only pre-employment hiring decisions. While the ultimate decision
as to whom to hire for a particular position is left to management’s discretion, it is well-
established that criteria for personnel selection are within the scope of representation.
(Oakland Unified School District (1982) PERB Decision No. 275, pp. 18-19.) The same
is true of criteria for reemployment of temporary faculty. (Pittsburg Unified School
District (2022) PERB Decision No. 2833, p. 9 & fn. 5; Fremont Unified School District
(1997) PERB Decision No. 1240, adopting proposed decision at p. 19.) Because
UCSC’s concurrent appointment policy establishes a general hiring criterion for every

14
lecturer appointment, i.e., that an individual cannot also be employed in a non-exempt
position, it “involves the employment relationship” under the above authority.
Turning to the second element, the ability of a non-exempt employee to serve
as a lecturer is the type of issue that raises a conflict amenable to resolution through
collective bargaining. As UC-AFT acknowledges, the FLSA requires the University to
designate an employee holding multiple appointments as either exempt or non-
exempt. U.S. Department of Labor regulations set forth a “primary duty” test to
determine whether an employee who performs both exempt and non-exempt work
qualifies for an overtime exemption. (29 C.F.R. § 541.700.) As the very existence of
the primary duty test demonstrates, however, the FLSA does not require an employer
to prohibit an employee from concurrently holding a non-exempt position and an
exempt position. (Cf. County of Sacramento (2020) PERB Decision No. 2745-M,
pp. 17-20 [Emergency Medical Services System and Prehospital Emergency Care
Personnel Act did not require county to impose a specific certification requirement on
dispatchers]; Sutter Union High School District (1981) PERB Decision No. 175, pp. 6-7
[Education Code did not excuse district’s unilateral extension of teachers’ instructional
days].) Consequently, UCSC did not have to bar non-exempt staff from concurrent
appointment as lecturers to comply with the FLSA.
Although its November 25, 2020 letter referenced FLSA compliance, the actual
reason UCSC gave for its decision to disallow concurrent lecturer appointments for
non-exempt staff was the “significant difficulties tracking and maintaining overtime
records in UCPath and our time and attendance system, CruzPay. To be concrete, it is
not feasible to track time for instructional titles.” At hearing and in its brief, the University

15
additionally contends that applying the primary duty test to each non-exempt employee
with a concurrent lecturer appointment would be administratively difficult because
primary duties could vary by quarter depending upon the percentage of each
appointment, UCSC does not have a mechanism for lecturers to track hours worked,
and collective bargaining agreements with unions representing non-exempt University
employees do not address how to pay FLSA-exempt employees.
These issues are amenable to collective bargaining. For example, the parties
could explore ways to record lecturers’ hours. They could discuss ways to implement
quarter-by-quarter determination of primary duties. They could consider ways to excuse
concurrent appointees deemed exempt from overtime requirements under existing
collective bargaining agreements,9 or to provide a mechanism for overtime payment in
the NSF Unit agreement for those deemed non-exempt. These compensation and
administrative matters are the sort of subjects commonly addressed in collective
bargaining. (See, e.g., State of California (Employment Development Department)
(1999) PERB Decision No. 1318-S, p. 6 [overtime]; State of California (Department of
Transportation (1983) PERB Decision No. 361-S, pp. 12-13 [staffing practices].)
The final element of the scope of representation analysis requires us to
determine whether negotiations would “unduly abridge [the University’s] freedom to
exercise those managerial prerogatives (including matters of fundamental policy)
essential to the achievement of the employer’s mission.” (Regents of the University of
9 When lecturer duties predominate, employees keep their FLSA-exempt status
no matter what combination of hourly or non-hourly compensation the parties
negotiate. (29 C.F.R. § 541.303, subd. (d) [salary basis test does not apply to
lecturers].)

16
California, supra, PERB Decision No. 2300-H, p. 21.) The University claims that its
new policy prohibiting certain concurrent appointments was an exercise of
management rights. Yet it points to no provision in its collective bargaining agreement
(Agreement) with UC-AFT granting it the right to unilaterally make this decision. Nor
does the University identify any fundamental policy essential to the achievement of its
mission that would be unduly abridged by requiring it to negotiate over the concurrent
appointment policy. (See Pittsburg Unified School District, supra, PERB Decision
No. 2833, p. 9 & fn. 5 [employer must bargain before changing work opportunities or
qualifications, as well as before categorically excluding certain employees from
performing certain work, unless required by external law].)
Instead, as discussed ante, the University cites only administrative difficulties
as the reason for prohibiting UCSC staff from holding concurrent lecturer and
non-exempt staff appointments. Administrative convenience is not a matter of
fundamental policy essential to the achievement of the University’s mission such that
the University would be exempt from HEERA’s mandate to attempt to resolve
compensation issues through the collective bargaining process. (See, e.g., Jefferson
School District (1980) PERB Decision No. 133, p. 27 [employer must bargain over
timing of employee paychecks].) Further, while the University and UC-AFT bargain
NSF Unit employment terms on a systemwide basis, and other campuses have
allowed concurrent exempt and non-exempt appointments, here UCSC stands alone
in deciding to prohibit such appointments. This fact further undercuts the University’s
argument that its policy addresses a fundamental management concern. Accordingly,
the University’s decision to adopt the policy was within the scope of representation. If

17
the University wishes to make this change, it must provide notice and bargain to
impasse or agreement.
C. 	Generalized Effect or Continuing Impact
“A change of policy has, by definition, a generalized effect or continuing impact
upon the terms and conditions of employment of bargaining unit members.” (Grant
Joint Union High School District (1982) PERB Decision No. 196, p. 9.) This element is
easily satisfied here because the policy prohibiting employees from concurrently
holding a non-exempt staff position and an exempt academic position is not an isolated
contract breach but has an ongoing effect on work opportunities, qualifications,
compensation, and re-employment. The policy also has “a generalized effect or
continuing impact” on bargaining unit members because the University asserts a right
to unilaterally adopt the policy, indicating it may repeat such conduct in the future.
(Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8.)
D. 	Notice and Opportunity to Bargain
Although the amount of time varies depending on the circumstances of each
case, “an employer must give notice sufficiently in advance of reaching a firm decision
to allow the representative an opportunity to consult its members and decide whether
to request information, demand bargaining, acquiesce to the change, or take other
action.” (Regents of the University of California (2018) PERB Decision No. 2610-H,
p. 45.) When the employee organization first learns of the proposed change by virtue
of “the employer’s implementation of that change, by definition, there has been
inadequate notice.” (City of Sacramento (2013) PERB Decision No. 2351-M, p. 33,
original italics.) “In such cases, the employer’s ‘notice’ is nothing more than its

18
announcement of a fait accompli.” (Ibid.)
Here, UC-AFT first learned of the University’s new concurrent appointment
policy when UCSC announced the implementation of the policy in its November 25,
2020 letter. Indeed, UCSC had already implemented the policy when it rescinded
Gupta’s lecturer appointment the prior month. We thus have no difficulty concluding
that the University did not provide UC-AFT adequate notice or opportunity to meet and
confer over UCSC’s decision to adopt the concurrent appointment policy.
UC-AFT has met its burden to prove all elements of an unlawful unilateral
change by a preponderance of the evidence. We accordingly conclude that the
University violated HEERA section 3571, subdivision (c), and derivatively violated
section 3571, subdivision (a), by adopting the concurrent appointment policy without
providing UC-AFT adequate notice or an opportunity to meet and confer over the
decision.10
II. 	Unilateral Modification of the Non-Senate Faculty Bargaining Unit
The complaint alleged that the University’s adoption of the concurrent
appointment policy violated HEERA section 3571, subdivisions (a) and (c) and PERB’s
unit modification regulations and/or the recognition clause of the parties’ Agreement by
10 Because we conclude the University was obligated to bargain over the
decision, we need not address its contention that UC-AFT waived its right to meet and
confer over any negotiable effects of the decision. In any event, “announcing a new
policy as a fait accompli would not trigger a duty to demand bargaining and cannot
support a waiver defense.” (Kern County Hospital Authority (2022) PERB Decision
No. 2847-M, pp. 17-18 [judicial appeal pending], citing County of Merced (2020) PERB
Decision No. 2740-M, p. 20.)

unilaterally modifying the NSF Unit. For the following reasons, we find in favor of
UC-AFT on this allegation.
Article 1 of the Agreement is entitled “Recognition.” Article 1.C provides, in
pertinent part: “The recognized unit may be modified by agreement of the parties to this
MOU, pursuant to the rules and regulations of the Public Employment Relations Board.”
Article 1.F provides, in pertinent part: “If the University proposes to move an individual
out of the unit during that individual’s term of appointment, the University shall provide
thirty (30) calendar days’ notice to the AFT and upon request will meet and discuss
regarding the individual’s unit status. If the parties cannot agree on the individual’s unit
status, either party may pursue the designated PERB procedures for determining unit
status. Until the dispute is resolved, the individual shall remain within the unit.”
PERB Regulation 32781 allows a recognized or certified employee organization
to file a petition: “(1) To add to the unit unrepresented classifications or positions; (2) To
divide an existing unit into two or more appropriate units; [or] (3) To consolidate two or
more established units into one appropriate unit.” (Id., subd. (a).) The regulation also
allows a recognized or certified employee organization, an employer, or both to f ile a
petition to delete classifications or positions from the unit for specified reasons, “make
technical changes to clarify or update the unit description,” or “resolve a dispute as to
unit placement or designation of a new classification or position.” (Id., subd. (b).)
UC-AFT argues that, by no longer allowing non-exempt UCSC staff to be
appointed concurrently as lecturers, the University unilaterally modified the NSF Unit by
removing positions from it. UC-AFT presented no evidence that any position left vacant
by application of this policy was filled by another employee outside the NSF Unit, or that
19

such a position would not be filled by a bargaining unit lecturer in the future. (Cf. City of
Sacramento, supra, PERB Decision No. 2351-M, p. 16 [noting that a transfer of
bargaining unit work occurs when non-unit employees begin performing work that
previously was performed exclusively by unit employees].)
UC-AFT instead points to a single instance to support its claim. As a result of
applying the unilaterally adopted concurrent appointment policy, UCSC eliminated Scott
Makson’s NSF Unit appointment as a 15 percent full-time equivalent (FTE) lecturer and
modified his non-exempt appointment to include the NSF Unit work. “[T]he filing of a
petition for unit modification is the proper mechanism by which PERB can exercise its
authority to decide, in disputed cases, whether changed circumstances justify any
proposed modification to an existing unit.” (Regents of the University of California
(1989) PERB Decision No. 722-H, p. 4.) Thus, when an employer believes an employee
is performing work that belongs outside the bargaining unit, it may not unilaterally
reclassify the employee to a position outside the bargaining unit. (Id. at pp. 4-6; see
Modesto City School District (1991) PERB Decision No. 884, p. 11 [noting that “PERB
requires the employer to observe” the unit modification process in order to “delete a
position from a bargaining unit by retitling”]; Hemet Unified School District (1990) PERB
Decision No. 820, p. 5 [“PERB is empowered to resolve any unit placement ‘disputes’”
and parties cannot “divest the Board of such jurisdiction”].) Here, while UCSC did not
entirely reclassify Makson’s position, it did eliminate the lecturer appointment he
previously held and whose duties he continued to perform under the auspices of his
non-exempt position. Because this conduct unilaterally modified the NSF Unit without
UC-AFT’s agreement or utilization of PERB’s unit modification procedures, and also
20

unilaterally modified Article 1 of the parties’ Agreement without providing UC-AFT notice
and an opportunity to bargain, we conclude that the University violated HEERA
section 3571, subdivisions (a) and (c).
REMEDY
HEERA grants PERB broad remedial powers, including the authority to issue
cease-and-desist orders and to require such affirmative action as PERB deems
necessary to effectuate the policies and purposes of the Act. (HEERA, § 3563.3.)
A “properly designed remedial order seeks a restoration of the situation as nearly as
possible to that which would have obtained but for the unfair labor practice.” (Modesto
City Schools (1983) PERB Decision No. 291, pp. 67-68.) PERB’s standard remedy for
an employer’s unlawful unilateral change is a cease-and-desist order, a notice posting,
restoration of the status quo ante, and appropriate make-whole relief including back pay
and benefits with interest. (Pasadena Area Community College District (2015) PERB
Decision No. 2444, pp. 23-24.)
Those remedies are appropriate here. We thus will order the University to rescind
its policy prohibiting employees at the University’s Santa Cruz campus from
concurrently holding a non-exempt staff position and an exempt academic position, to
cease and desist from failing to meet and confer in good faith with UC-AFT over matters
within the scope of representation, to cease and desist from interfering with employees’
right to be represented by UC-AFT, and to post a notice of its violations.
As for make-whole relief, UC-AFT established that Maya Gupta would have been
employed to teach one section of Philosophy 127 in Winter Quarter 2021 had UCSC not
unlawfully adopted the concurrent appointment policy. It therefore is appropriate to
21

order the University to make Gupta whole for any lost wages and benefits resulting from
the University’s unlawful unilateral change, with interest at a rate of seven percent per
year. Further, under Article 7b of the parties’ Agreement, a lecturer may achieve
“continuing status” upon receiving an appointment that brings the lecturer to six years of
service in the bargaining unit. The make-whole relief ordered here thus shall also
include appropriate credit toward the six-year requirement for continuing status under
Article 7b of the parties’ Agreement.
UC-AFT did not present evidence at the hearing that UCSC denied any other
non-exempt employee a lecturer appointment because of the unlawfully adopted
concurrent appointment policy. Any employees who were denied such an appointment
because of the policy, however, should not be denied a remedy. Thus, we will order the
University to make impacted employees whole for resulting losses proven by UC-AFT in
compliance proceedings. (County of Santa Clara (2021) PERB Decision No. 2799-M,
pp. 28-29; Regents of the University of California, supra, PERB Decision No. 2783-H,
p. 32; Desert Sands Unified School District (2010) PERB Decision No. 2092, pp. 31-32.)
To remedy the University’s unlawful unilateral modification of the NSF Unit, we
will order the University to restore the 15 percent FTE lecturer position formerly held by
Scott Makson, make Makson whole for any wages, benefits, or credit toward the
six-year requirement for continuing status he lost as a result of the elimination of the
lecturer position with interest at a rate of seven percent per year, and cease and desist
from modifying the NSF Unit without UC-AFT’s agreement or utilizing PERB’s unit
modification process.
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ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record
in the case, it is 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 failing to meet and confer in good faith with University Council-American
Federation of Teachers (UC-AFT) prior to adopting a policy prohibiting employees at the
University’s Santa Cruz campus from concurrently holding a non-exempt staff position
and an exempt academic appointment in the Non-Senate Faculty (NSF) Unit. It is
further found that the University violated HEERA by unilaterally removing one lecturer
position from the NSF Unit. This same conduct interfered with employees’ right to be
represented by UC-AFT. Pursuant to Government Code section 3563, subdivisions (h)
and (m), it hereby is ORDERED that the University, its governing board, and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the hiring or reappointment criteria for
positions in the NSF Unit.
2. 	Unilaterally modifying the NSF Unit without UC-AFT’s agreement
or utilization of PERB’s unit modification process.
3. 	Unilaterally modifying Article 1 of the parties’ collective bargaining
agreement without providing UC-AFT with notice or an opportunity to meet and confer
in good faith.
4. 	Failing or refusing to meet and confer in good faith with UC-AFT
over matters within the scope of representation.
23

5. 	Interfering with employees’ right to be represented by UC-AFT.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF HEERA:
1. 	Rescind the policy announced o n November 25, 2020, that
prohibits employees at University of California, Santa Cruz, from concurrently holding
a non-exempt staff position and an exempt academic position.
2. 	Make Maya Gupta whole for the rescission of her appointment to
teach one section of Philosophy 127 in Winter Quarter 2021, as well as any later harm
she suffered because of the University’s new policy on c oncurrent employment, with
interest at a rate of seven percent per year. Make any other employees who were
denied appointments in the NSF Unit as a result of the University’s unlawful unilateral
change whole for losses proven by UC-AFT in compliance proceedings, with interest
at a rate of seven percent per year. Such make-whole relief to Gupta and any other
affected employees shall also include appropriate credit toward the six-year
requirement for continuing status under Article 7b of the parties’ collective bargaining
agreement.
3. 	Restore to the NSF Unit the 15 percent full-time equivalent (FTE)
lecturer position formerly held by Scott Makson.
4. 	Make Scott Makson whole for any wages, benefits, or credit
toward the six-year requirement for continuing status he l ost as a result of the
University’s elimination of the 15 p ercent FTE lecturer position he f ormerly held, with
interest at a rate of seven percent per year.
5. 	Within 10 workdays of the date this decision is no longer subject
to appeal, post at all work locations where notices to employees in the NSF Unit are
24

posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the University, indicating that it will comply with the
terms of this Order. Such posting shall be maintained for a period of 30 consecutive
workdays.11 The Notice shall also be sent to all bargaining unit employees by
electronic message, intranet, internet site, or other electronic means used by the
University to communicate with NSF Unit members. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced, or covered with any
other material.
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 designee. All reports regarding compliance with
11 In light of the ongoing COVID-19 pandemic, the University shall notify
PERB’s Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If the
University so notifies OGC, or if a Charging Party requests in writing that OGC alter or
extend the posting period, require additional notice methods, or otherwise adjust the
manner in which employees receive notice, OGC shall investigate and solicit input
from all relevant parties. OGC shall provide amended instructions to the extent
appropriate to ensure adequate publication of the Notice, such as directing the
University to commence posting within 10 workdays after a majority of employees
have resumed physically reporting on a regular basis; directing the University to mail
the Notice to all employees who are not regularly reporting to any work location due to
the extraordinary circumstance, including those who are on a short term or indefinite
furlough, are on layoff subject to recall, or are working from home; or directing the
University to mail the Notice to those employees with whom it does not communicate
through electronic means.
25

this Order shall be concurrently served on UC-AFT.
Chair Banks and Members Krantz and Paulson joined in this Decision.
26

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. SF-CE-1317-H, University
Council-American Federation of Teachers 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: (1) unilaterally deciding to
prohibit employees at its Santa Cruz campus from concurrently holding a non-exempt
staff position and an exempt academic appointment in the Non-Senate Faculty (NSF)
Unit; and (2) unilaterally modifying the NSF Unit and the parties’ collective bargaining
agreement by removing one lecturer position from the unit.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the hiring or reappointment criteria for
positions in the NSF Unit.
2. 	Unilaterally modifying the NSF Unit without UC-AFT’s agreement
or utilization of PERB’s unit modification process.
3. 	Unilaterally modifying Article 1 of the parties’ collective bargaining
agreement without providing UC-AFT with notice or an opportunity to meet and confer
in good faith.
4. 	Failing or refusing to meet and confer in good faith with UC-AFT
over matters within the scope of representation.
5. 	Interfering with employees’ right to be represented by UC-AFT.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF HEERA:
1. 	Rescind the policy announced on November 25, 2020, that
prohibits employees at University of California, Santa Cruz, from concurrently holding
a non-exempt staff position and an exempt academic position.

2. 	Make Maya Gupta whole for the rescission of her appointment to
teach one section of Philosophy 127 in Winter Quarter 2021, as well as any
subsequent harm she suffered as a result of the University’s new policy on concurrent
employment, with interest at a rate of seven percent per year. Make any other
employees who were denied appointments in the NSF Unit as a result of the
University’s unlawful unilateral change whole for losses proven by UC-AFT in
compliance proceedings, with interest at a rate of seven percent per year. Such
make-whole relief to Gupta and any other affected employees shall also include
appropriate credit toward the six-year requirement for continuing status under
Article 7b of the parties’ collective bargaining agreement.
3. 	Restore to the NSF Unit the 15 percent full-time equivalent (FTE)
lecturer position formerly held by Scott Makson.
4. 	Make Scott Makson whole for any wages, benefits, or service
credit he lost as a result of the University’s elimination of the 15 percent FTE lecturer
position he formerly held, with interest at a rate of seven percent per year.
Dated: _____________________ 	REGENTS OF THE UNIVERSITY OF
CALIFORNIA
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2