Regents of the University of California * * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 2109H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AFSCME LOCAL 3299,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. SF-CE-862-H
PERB Decision No. 2109-H
May 19, 2010
Appearances: 	Weinberg, Roger & Rosenfeld by Kerrianne R. Steele, Attorney, for AFSCME
Local 3299; Littler Mendelson by Joshua D. Kienitz, Attorney, for Regents of the University of
California.
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 AFSCME Local 3299 (AFSCME) of a Board agent's partial
dismissal of its unfair practice charge. The charge alleged, in relevant part, that the Regents of
the University of California (University) violated the Higher Education Employer-Employee
1Relations Act (HEERA), 	section 3571, by unilaterally changing the sick and vacation leave
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1 HEERA is codified at Government Code section 3560 et seq. Section 3571 provides,
in part, that it is unlawful for the University to:
(c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
2 The allegation that the University unilaterally changed the access regulations was not
discussed in AFSCME's amended charge. In its appeal, AFSCME stated that this subject was
addressed in a separate charge. Therefore, this allegation is deemed withdrawn from this
charge.
* * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB
Decision No. 2731-M * * *

The Board reviewed the partial dismissal and the record in light
of
AFSCME's appeal,
the University's response and the relevant law. Based on this review, the Board affirms the
partial dismissal
of
the unfair practice charge.
BACKGROUND
AFSCME is the exclusive representative
of
two bargaining units: the Patient Care
Technical Unit (PCT) and the Service Unit (SX). AFSCME and the University were engaged
in negotiations for successor agreements in both bargaining units. The PCT/UC collective
bargaining agreement (CBA) expired on September 30, 2007. The SX/UC CBA expired on
January 31, 2008. PERB declared the parties were at impasse in the PCT unit on
December 14, 2007, and in the SX unit on February 5, 2008.3
The parties for both units met with a mediator, but did not reach agreement. Thereafter,
factfinding was conducted in both units in March and April. The factfinding panel for the PCT
unit issued its findings on April 19. The factfinding report for the SX unit was issued on
May 2.
On May 9, the parties met for further negotiations. The parties' positions at the
bargaining session were unchanged from the positions they held prior to factfinding.
Thereafter, AFSCME informed the University that it would send the University's last offers to
the membership
of
the PCT and SX units for a vote.
Presumably the University's offers were rejected. AFSCME conducted a strike
authorization vote in both units from May 17 through May 22. On May 23, AFSCME issued
strike notices to the University for both the PCT and SX units.
Hereafter all dates refer to 2008, unless otherwise noted.
2

Around the time that AFSCME conducted the strike vote, the University published on
its website a document titled, "Questions and Answers."4 The document stated, in relevant
part:
AFSCME, the union representing
UC's
patient care technical
employees, has announced a series
of
strike votes, scheduled
from May 17-22, 2008. It is critical that all employees, including
patient care technical employees, understand the implications
of
such an action so they can make an informed choice about
whether to consider voting for or participating in this strike.
Below are answers to some important questions.
Q. What will UC do
if
patient care technical employees
strike?
A.
	If
any employee does not report to work as assigned, the
University will presume - absent medical certification - that
her/his absence from work during a declared strike period is
strike related.
Authorization for an absence from work (e.g., vacation leave)
may or may not be granted, depending on operational necessity
and without regard to the employee's reason for the requested
leave.
Employees who are absent from work without authorization
during a strike will not be paid for the absence and may face the
possibility
of
disciplinary action for cause depending on the facts
and circumstances (e.g., applicable contract language,
misconduct, prior notice(s), prior disciplinary history).
(Emphasis in original.)
The PCT/UC and SX/UC CBAs each contain substantially similar provisions for the
use
of
accrued sick leave by employees. Article 35
of
the PCT CBA states, in relevant part:
2. Documentation and Verification
a. When it appears to be justified, an employee may be required
to submit satisfactory documentation
of
personal illness or
4 While the initial document addressed the PCT negotiations and strike vote, two
substantially similar documents were subsequently distributed discussing both the PCT and SX
units.
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disability to the University in order to receive an excused absence
from work and/or sick leave pay. The employee shall be given
notice prior to returning to work that he/she will be required to
provide such documentation. [5
l
e.
	An employee's repeated use
of
sick time may result in loss
of
sick leave pay, when the University has determined that such use
is abusive, and provided the University has provided prior written
notice to the employee that sick leave will be denied on future
instances
of
illness irrespective
of
the nature or duration
of
illness. Additionally, an employee may not be eligible for sick
leave pay in accordance with other provisions
of
this Article. [6 l
Both CBAs provide that, "Vacation leave is scheduled at the convenience
of
the
University," and the operational needs
of
the University may be considered. The PCT CBA
also states that, "Once established, the University will endeavor to adhere to the vacation
schedule."
On May 13, PCT unit member Susanne Sharpe (Sharpe), submitted a written request for
vacation leave on June
2.
	Sharpe's supervisor approved the request on May 15. On May 20,
Sharpe's supervisor informed her that the vacation authorization would be rescinded
if
a strike
was held on that day.
In its original charge, AFSCME alleged a unilateral change in the CBA sick and
vacation leave policies. As amended, AFSCME alleged there was a "well established" practice
that the University would enforce the sick leave verification requirement only when empioyees
had previously abused the sick leave policy. AFSCME further alleged there was a "well
5 The relevant section
of
the SX CBA essentially mirrors the PCT contract provision,
except for minor differences as noted:
When it appears to be justified, an employee may be required to
submit satisfactory documentation
of
personal or family illness,
disability, or death to the University in order to receive an
excused absence from work and sick leave pay.
(Emphasis added.)
6 The SX CBA contains substantially similar language.
4

established" policy that the University would not rescind scheduled vacation leave once a
request was granted.
DISCUSSION
AFSCME alleges that in posting the "Questions and Answers" document, the
University unilaterally changed the sick and vacation leave poiicies without providing notice
and an opportunity to bargain. The criteria to establish a
"per
se" unilateral change in violation
of
HEERA section 3571 are: 	(1) the employer breached or altered the parties' written
agreement or its own established 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 Joint Union High School District
(1982) PERB Decision No. 196.)
Sick Leave Policy
The sick leave policy set forth in both the PCT and the SX CBAs allows the University
to require employees to provide verification
of
illness "[ w ]hen it appears to be justified." In
the event an employee is required to produce verification
of
illness, the contract requires the
University to inform the employee
of
this requirement prior to returning to work. While sick
leave is within the scope
of
representation, the charge does not demonstrate that the University
changed this policy when it provided employees with advance notice that sick leave will be
5

granted on the dates corresponding with a strike,
if
employees produce medical verification
of
illness.
AFSCME contends there is an established practice
of
enforcing the medical verification
requirement only for employees who have exhibited an abusive pattern
of
absence. AFSCME
asserts the contract contemplates continued application
of
existing practices. AFSCME cites
Article 25
of
the PCT CBA, which states, in relevant part:
Practices and policies relating to wages, hours, and terms and
conditions
of
employment in effect but not contemplated during
negotiations over the UC-AFSCME Agreement may remain in
effect insofar as they are not in conflict with the intent
of
the
Agreement.
To constitute a valid, established past practice, a practice must be: (1) unequivocal;
(2) clearly enunciated and acted upon; and (3) readily ascertainable over a period
of
time as a
fixed and established practice. (Hacienda La Puente Unified School District (1997) PERB
Decision No. 1186 (Hacienda La Puente).) Pleading or raising a bare allegation without
sufficient supporting facts is insufficient for purposes
of
stating a prima facie case. ( United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)
There are no facts alleged in the charge to demonstrate an unequivocal, fixed and long-
standing practice
of
limiting the medical verification requirement only to employees who have
previously abused their sick leave. In fact, there is a separate contract provision that details the
denial
of
paid sick leave in the event
of
employee abuse. This provision does not address
verification of illness. Furthermore, AFSCME' s reliance on Article 25 is unavailing as the
CBA addresses the use and verification
of
sick leave and does not leave the subject to prior
practices.
Moreover, it is not an unlawful unilateral change for the employer to enforce the
written terms of the contract. (Marysville Joint Unified School District (1983) PERB Decision
6

No. 314.) Even assuming there was a past practice ofrequiring medical verification only in
cases of abuse, the University is not precluded from enforcing the terms of the contract.
Accordingly, the charge does not demonstrate a prima facie case of an unlawful unilateral
change in the sick leave policy.
Vacation Leave Policy
With respect to the vacation policy, the "Questions and Answers" document states that
the University may or may not authorize vacation leave absences, depending on operational
necessity. Both CBAs permit the University to consider its operational needs in approving
vacation leave, and affirm that, "Vacation leave is scheduled at the convenience of the
University." Further, the PCT CBA states that once vacation leave is approved, "the
University will endeavor to adhere to the vacation schedule." The contract language clearly
permits the University to consider its operational needs, such as when facing employee strike
activity, when approving vacation requests. Thus, while vacations are also within the scope of
representation, the charge does not demonstrate a change in the vacation leave policy.
AFSCME also asserts that there is a well established policy that the University will not
rescind scheduled vacation leave once a request is granted. AFSCME alleges that the
University informed Sharpe that her vacation request may be rescinded in the event of a strike.
These facts do not support AFSCME' s past practice claim and there are no other facts alleged
that satisfy the standard to demonstrate a valid, established past practice. (Hacienda
La Puente.)
Accordingly, the charge does not establish a prima facie case that the University
unilaterally changed its sick and vacation leave policies in violation of HEERA, and dismissal
of these allegations is proper.
7

ORDER
The partial dismissal
of
unfair practice charge in Case No. SF-CE-862-H is hereby
AFFIRMED.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
8