Regents of the University of California (Irvine) (PERB 2593H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEAMSTERS LOCAL 2010,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (IRVINE),
Respondent.
Case No. SF-CE-1085-H
PERB Decision No. 2593-H
October 26, 2018
Appearances: John E. Varga, Legal Director, and Abenicio J. Cisneros, Staff Attorney, for
Teamsters Local 2010; Patrick D. Carroll, Labor Relations Advocate, for Regents of the
University of California (Irvine).
Before Banks, Winslow, and Krantz, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on Teamsters Local 2010’s (Local 2010) exceptions to a proposed decision
by an administrative law judge (ALJ) dismissing the complaint. The complaint alleged that the
Regents of the University of California (Irvine) (University) interfered with employee rights
guaranteed by the Higher Education Employer-Employee Relations Act (HEERA)1 by
directing Dianna Sahhar (Sahhar) and Sarah Labuda (Labuda) not to discuss union matters
during work time, while permitting the discussion of other non-work related subjects during
work time. The ALJ concluded that although Local 2010 established a prima facie case of
interference, the University established a legitimate business justification that outweighed the
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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harm to employee rights, specifically, by demonstrating that the University’s restrictions were
consistent with the parties’ agreement.
Having reviewed the proposed decision and the entire record in light of the parties’
submissions, we conclude that Local 2010 did not agree to prohibit discussion of union matters
during work time. We therefore reverse the proposed decision and find that the University
violated HEERA.
FINDINGS OF FACT
The University is a higher-education employer within the meaning of HEERA
section 3562, subdivision (g). Local 2010 is the exclusive representative of the University’s
clerical bargaining unit, and is a recognized employee organization within the meaning of
section 3562, subdivision (p).
Article 1 of the parties’ collective bargaining agreement (CBA), effective from
December 13, 2011 through November 30, 2016, contained the following relevant provisions
regarding Local 2010’s access rights:
A. GENERAL PROVISIONS
1. The parties acknowledge that it is in the union’s interest that it
be granted access to University facilities for the purposes of
ascertaining whether the terms of this Agreement are being
met; engaging in the investigation, preparation, and adjustment
of grievances; conducting union meetings; explaining to
bargaining unit members their rights and responsibilities under
the Agreement; and informing CUE[2] Teamsters employees of
union activities. In the interest of facilitating these purposes,
and in accordance with local campus/hospital/Laboratory
procedures, the parties agree to this Article.
2. The University has the right to enforce reasonable access rules
and regulations as promulgated at each campus/hospital/
Laboratory.
2 Local 2010 was formerly known as the Coalition of University Employees (CUE).
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B. ACCESS BY THE UNION/UNION REPRESENTATIVES -
GENERAL PROVISIONS
1. Designated union representatives who are not University
employees, or who are not employed at the facility visited,
may visit the facility at reasonable times and upon notice to
discuss with the University or bargaining unit member’s [sic]
matters pertaining to this Agreement. In the case of visits for
the purpose of conducting unscheduled meetings with
bargaining unit members, the union representative shall give
notice upon arrival in accordance with local campus/hospital/
Laboratory procedures.
2. CUE Teamsters will furnish the University with a written list
of all CUE Teamsters representatives. . . .
3. Such internal union business as membership recruitment,
campaigning for union office, handbilling or other distribution
of literature, and all other union activities shall take place
during non-work time. Employee rest and meal periods are
non-work time for the purposes of this Article.
C. EMPLOYEE REPRESENTATIVES
1. 	The University shall recognize CUE Teamsters designated
employee representatives who are members of the bargaining
unit. The function of the CUE Teamsters designated
employee representative shall be to inform employees of their
rights under this Agreement, to ascertain that the terms and
conditions of this Agreement are being observed, and to
investigate and assist in the processing of grievances.
The University’s Irvine campus (UCI) has issued “Access Regulations for Employee
Organizations.” Those regulations define “representative” as “any person acting in the interest
of or on behalf of an employee organization, including both University and non-University
personnel.” The regulations state that “[r]epresentatives of employee organizations are
authorized to make contact with employees only during non-working hours; i.e., immediately
before and after work, and during lunch and rest periods.”
Sahhar is employed by the UCI Law Library as a research services coordinator. She is
also a Local 2010 steward and an assistant chapter coordinator of Local 2010’s UCI chapter.
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Labuda began working at the UCI Law Library as a technical services assistant in August
2014. Sahhar and Labuda are both in the clerical bargaining unit. They are supervised by Jeff
Latta (Latta).
Shortly after Labuda’s hiring, on August 21, 2014, Latta assigned Sahhar to “shadow”
Labuda at the library’s front desk for an hour. This meant Sahhar was to watch Labuda
perform her duties and assist her if she was unaware of how to perform a specific task. During
this hour, Labuda learned many of the front desk duties and received explicit pointers from
Sahhar. Because the library was not busy, Sahhar and Labuda also engaged in casual
conversation about a number of non-work topics. These topics included their respective
commutes to work, the location of Sahhar’s residence, Sahhar’s former employment at the
main library, and Sahhar’s involvement in Local 2010.
Sahhar explained that she was a Local 2010 steward. Labuda asked about Local 2010
and who belonged to it. Sahhar explained what Local 2010 did, how it became the bargaining
unit representative, and which classifications Local 2010 represented. Sahhar explained that
being a member of Local 2010 did not cost any more than being an agency fee payer, and she
encouraged Labuda to complete a membership application. Sahhar also mentioned that she
was on Local 2010’s political committee and told Labuda about the union’s efforts to support a
legislative bill concerning workplace harassment. Sahhar also asked if Labuda had received a
particular Local 2010 e-mail. Labuda stated that she had not; Sahhar promised to forward the
e-mail to her. Sahhar testified that she was not sharing information with Labuda as a union
steward or Local 2010 representative, but rather as a fellow colleague introducing herself to a
new employee.
During the hour, Sahhar and Labuda discussed non-work matters for about 15 minutes,
10 minutes of which concerned union-related matters.
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Shortly afterwards, Latta sent the following e-mail to Sahhar and Labuda with the
subject “union matters”:
It has come to my attention that there was some union[-]related
conversation taking place between you both while you were up
here at the Service Counter this past hour; according to UCI
policy, union matters cannot be discussed during work time.
Please restrict these conversations to outside of your working
hours.
Latta testified that he had been told about Sahhar and Labuda’s conversation from someone
who had overheard it.
Labuda responded to Latta’s e-mail by apologizing and stating that she was unaware of
the policy. Latta told her not to worry about it because she was a new employee who was still
learning new things.
Sahhar did not respond to Latta’s e-mail. Sahhar testified that after she received Latta’s
e-mail, she refrained from speaking with any unit employees about union business while on
work time. Sahhar believed Latta’s e-mail was intimidating because it cited “UCI policy.”
It was not contested that UCI Library staff were allowed to engage in non-work casual
conversation while at work.3 Some of the non-work conversation concerned watching football
games, movies, and television shows; purchasing new shoes; and knitting.4
DISCUSSION
I. 	Adequacy of the Exceptions
The University argues that Local 2010’s statement of exceptions does not comply with
PERB Regulation 32300, subdivision (a).5 As relevant here, that regulation states:
3 The University’s answer to the amended complaint admitted the allegation that it
“tolerates incidental non-work related conversations by employees on work time.” Latta also
admitted that he has never advised employees to refrain from non-work related conversations,
except those involving union matters.
4 Sahhar testified that later the same day, she observed Latta at the library’s front desk
with another employee and overheard him discussing a football player’s tattoos.
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A party may file with the Board itself . . . a statement of
exceptions to a Board agent’s proposed decision . . . and
supporting brief . . . . The statement of exceptions or brief shall:
(1) State the specific issues of procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part of the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions of
the record, if any, relied upon for each exception;
(4) State the grounds for each exception.
(PERB Reg. 32300, subd. (a).)
The University objects that Local 2010’s statement of exceptions identifies the
information required by (1) and (2), but refers to its supporting brief for the information
required by (3) and (4). We find nothing improper in this practice. We have recognized that
PERB Regulation 32300 permits a party to file a statement of exceptions, a brief, or both.
(El Dorado County Superior Court (2017) PERB Decision No. 2523-C, p. 6; Regents of the
University of California (San Francisco) (2014) PERB Decision No. 2370-H, p. 10.) Taken
together, Local 2010’s exceptions and supporting brief provide all of the required information
and, most importantly, adequately apprise the Board and the University of the basis for its
exceptions.
The University also contends that one of Local 2010’s exceptions concerns a finding
that does not appear in the proposed decision. Specifically, the University points out that
Local 2010’s third exception concerns “the ALJ’s conclusion that the Respondent’s directive
[sic] unlawfully overbroad.” There is an obvious typographical error in this sentence, although
it is not clear whether the error is the omission of “was” or “was not.” Based on our review of
5 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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Local 2010’s supporting brief and of the proposed decision, we have no trouble discerning that
Local 2010 intended to except to the ALJ’s implicit conclusion that the University’s directive
was not unlawfully overbroad. The remainder of the University’s response to the exceptions
makes clear that the University was able to discern this, too.
We therefore reject the University’s challenge to the adequacy of the exceptions and
turn to the merits.
II. 	The Merits
The complaint in this case alleges a violation of HEERA section 3571, subdivision (a),
which makes it unlawful for an employer to “[i]mpose or threaten to impose reprisals on
employees, to discriminate or threaten to discriminate against employees, or otherwise to
interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by
this chapter.”
The Board’s framework for analyzing allegations of unlawful interference is well
settled. A prima facie case of interference will be found when the employer has engaged in
conduct that tends to or does result in at least slight harm to rights guaranteed by the statute.
(Regents of the University of California (1997) PERB Decision No. 1188-H, p. 21.) “The
employer then has the burden of demonstrating operational necessity or circumstances beyond
the employer’s control as justification for the conduct.” (Ibid.) “The scrutiny with which the
employer’s conduct will be examined depends on the severity of the harm.” (County of San
Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 36.) If the
harm to protected rights is slight, a violation will be found unless the employer’s business
justification outweighs the harm to protected rights. (Stanislaus Consolidated Fire Protection
District (2012) PERB Decision No. 2231-M, pp. 22-23.) If the employer’s conduct is, instead,
inherently destructive of protected rights, it “‘will be excused only on proof that it was
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occasioned by circumstances beyond the employer’s control and that no alternative course of
action was available.’” (Id. at p. 23, quoting Carlsbad Unified School District (1979) PERB
Decision No. 89.)
A. 	Prima Facie Case
The ALJ concluded that Local 2010 met its initial burden of establishing at least slight
harm to employee rights. We agree.6 HEERA gives employees “the right to form, join and
participate in the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations and for the purpose of meeting
and conferring.” (HEERA, § 3565.) “Necessarily included in the right to ‘form, join, and
participate’ in the activities of an employee organization is the right of employees to ‘discuss[]
wages, hours and working conditions at the workplace.’” (Napa Valley Community College
District (2018) PERB Decision No. 2563, p. 11.) Restrictions on the exercise of these rights
during non-work time—rest breaks, meal periods, and time before and after work—are
presumed invalid. (Id. at p. 19; Petaluma City Elementary School District/Joint Union High
School District (2016) PERB Decision No. 2485, p. 45 (Petaluma).)
Latta’s directive, however, imposed a restriction during work time. Because work time
is for work, an employer may restrict non-business activities during work time, but it may not
single out union activities for special restriction, or enforce general restrictions more strictly
with respect to union activities. (Petaluma, supra, PERB Decision No. 2485, p. 50 [“Whatever
the occasion or cause, if the limited intrusion into worktime and work areas is permitted, it
cannot be denied for other, equally or less intrusive solicitation or concerted employee
activities”]; see also Jensen Enterprises, Inc. (2003) 339 NLRB 877, 878 [“an employer
6 Because we reject, below, the University’s defense of contractual waiver, and the
University has not asserted any other justification for its conduct, we need not decide in this
case whether the harm is comparatively slight or inherently destructive.
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violates the [National Labor Relations] Act when employees are forbidden to discuss
unionization, but are free to discuss other subjects unrelated to work”].)
Here, the evidence shows that the University’s restriction on work-time union-related
discussion was discriminatory; the University permits incidental non-work related
conversations by employees on work time. Therefore, we agree with the ALJ that the
University’s directive caused harm to employee rights by prohibiting work-time discussion of
union-related matters, but not other non-work matters.7
B. 	The University’s Defense
Turning to the University’s affirmative defense, the ALJ concluded that the University
had a legitimate business justification for its actions, because the CBA restricted Local 2010’s
rights to engage in membership recruitment. This is where we part ways with the ALJ.
Although largely analyzed in the proposed decision as a business justification defense,
the University’s defense is one of waiver. Waiver of a statutory right is an affirmative defense
(City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 37), and may be established only
by: (1) clear and unmistakable agreement; or (2) bargaining history showing that the issue was
fully discussed and consciously explored, and that the waiving party intentionally yielded its
interest in the matter (City & County of San Francisco (2017) PERB Decision No. 2536-M,
p. 34).
The parties’ CBA contains no clear and unmistakable waiver of rights applicable to
Latta’s e-mail directive. The CBA provides, in section 1.B.3, that “[s]uch internal union
7 Latta’s directive could also be deemed overbroad in that it did not specifically define
the ambiguous terms “work time” and “working hours.” (See State of California (Employment
Development Department) (2001) PERB Decision No. 1365a-S, p. 10.) However, the e-mail
otherwise concerned Sahhar and Labuda’s conversation at the front desk, which was
indisputably during work time, and Local 2010’s exceptions focus only on the overbreadth of
the terms “union[-]related conversation” and “union matters,” not of the terms “work time” and
“working hours.” The potential overbreadth of the latter terms is therefore not before us.
(PERB Regulation 32300, subd. (c).)
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business as membership recruitment, campaigning for union office, handbilling or other
distribution of literature, and all other union activities shall take place during non-work time.”
Finding that Sahhar was “obviously recruiting Labuda to become a member of Local 2010,”
the ALJ concluded that the CBA’s prohibition on membership recruitment applied. If this was
Latta’s concern, his directive to refrain from discussing “union matters” was quite overbroad.
(Cf. Los Angeles Community College District (2014) PERB Decision No. 2404, p. 6.) But
Latta’s e-mail did not contend that Sahhar was engaged in membership recruitment for Local
2010, nor was his directive confined to membership recruitment. Section 1.B.3 did not clearly
and unmistakably waive the right of employees to discuss “union matters” during work time.8
In its response to Local 2010’s exceptions, the University suggests that the CBA’s
prohibition of “all other union activities” constitutes a waiver. It does not. An expansive
interpretation of such an imprecise phrase is inherently at odds with the requirement of a clear
and unmistakable waiver. To take one example, the Board has consistently declined to read a
general no-strike clause as a clear and unmistakable waiver of the right to engage in a
sympathy strike. (City & County of San Francisco, supra, PERB Decision No. 2536-M,
pp. 32-33; Regents of the University of California (2004) PERB Decision No. 1638-H, p. 5.)
Additionally, the context of the phrase “all other union activities” suggests a much
narrower interpretation than the one advanced by the University. The phrase appears after
“[s]uch internal union business as membership recruitment, campaigning for union office,
handbilling or other distribution of literature.” According to the maxim that “a word takes its
meaning from the company it keeps” (noscitur a sociis), it is appropriate to “adopt a restrictive
8 Local 2010 argues that the restrictions in section 1.B.3 only apply to union
representatives who are not University employees or who are not employed at the facility they
are visiting. In other words, because Sahhar was an employee of the UCI Law Library, the
CBA did not prohibit her from engaging in campaigning for union office, membership
recruitment, or literature distribution during her work time. Given the broad scope of Latta’s
e-mail directive, we need not resolve this issue.
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meaning of a listed item if acceptance of a broader meaning would make other items in the list
unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other
items in the list.” (Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011)
192 Cal.App.4th 727, 740.) Interpreting “all other union activities” broadly to include all
employee discussion of “union matters” would make the other activities specified in CBA
section 1.B.3 redundant. Therefore, we infer that the ban on “all other union activities” applies
to those activities similar to membership recruitment, campaigning for office, and handbilling,
but not broader activities such as employee discussion of union matters.9
The University also submits that any ambiguity regarding CBA section 1.B.3 is
resolved by reference to UCI’s access policy and CBA section 1.A.2. There is no evidence
that Local 2010 agreed to the content of the access policy, meaning that it sheds little light on
any purported contractual waiver by Local 2010, and in any event the access policy covers
conduct by employee organization representatives, not conduct by employees. As for CBA
section 1.A.2, this provision allows the University “to enforce reasonable access rules and
regulations as promulgated at each campus/hospital/Laboratory.” Such a provision does little
more than acknowledge the University’s ability under HEERA section 3568 to place
“reasonable” limits on the access rights of employee organizations.10 (Regents of the
University of California (2012) PERB Decision No. 2300-H, pp. 12, 27-28 [by agreeing to
“abide by the reasonable access rules and regulations promulgated at each campus/
9 It also bears noting that if we were to conclude that section 1.B.3 prohibits all
employee discussion of union matters during work time, we may well have to find that that
provision unlawfully waives individual employee rights. (See NLRB v. Magnavox Co. of
Tennessee (1974) 415 U.S. 322, 325.)
10 Section 3568 provides: “Subject to reasonable regulations, employee organizations
shall have the right of access at reasonable times to areas in which employees work, the right
to use institutional bulletin boards, mailboxes and other means of communication, and the right
to use institutional facilities at reasonable times for the purpose of meetings concerned with the
exercise of the rights guaranteed by this act.”
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Laboratory,” as well as to refrain from “any Union activity or Union business on University
premises . . . unless . . . conducted in accordance and conformance with campus procedures,”
union did not waive right to challenge reasonableness of the rules and regulations (emphasis in
original)]; see also Regents of the University of California (2004) PERB Decision No. 1700-H,
adopting proposed decision at p. 55 [to determine whether a new access rule was authorized by
MOU provision allowing reasonable rules and regulations, PERB would determine whether the
rule was reasonable under HEERA].) Thus, section 1.A.2 does not suggest that Local 2010 has
agreed to a discriminatory policy concerning employee discussions of union matters, because a
discriminatory policy is per se unreasonable. (See Regents of the University of California,
Lawrence Livermore National Laboratory (1982) PERB Decision No. 212-H, p. 16.)
Because we reject the University’s waiver argument, and the University has presented
no other justification for Latta’s e-mail directive, we conclude that the University’s conduct
violated section 3571, subdivision (a).
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Regents of the University of California (Irvine) (University) violated
the Higher Education Employer-Employee Relations Act (HEERA), Government Code
section 3571, subdivision (a). Therefore, pursuant to Government Code section 3563.3, it is
hereby ORDERED that the University, its administrators, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with employee rights by prohibiting union-related discussions
during work time while permitting other non-work related discussions.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
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1. 	Rescind Jeff Latta’s August 21, 2015 e-mail directive prohibiting the
discussion of union matters.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices to clerical bargaining unit employees are
customarily 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 thirty (30) consecutive workdays.
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 to communicate
with clerical bargaining unit employees. Reasonable steps shall be taken to ensure that the
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. Respondent 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 Teamsters Local 2010.
Members Banks and Krantz joined in this Decision.
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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-1085-H, Teamsters Local 2010 v.
Regents of the University of California (Irvine), in which all parties had the right to participate,
it has been found that the Regents of the University of California (Irvine) 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:
Interfering with employee rights by prohibiting union-related discussions during
work time while permitting other non-work related discussions.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
Rescind Jeff Latta’s August 21, 2015 e-mail directive prohibiting the discussion
of union matters.
Dated: _____________________ 	REGENTS OF THE UNIVERSITY OF
CALIFORNIA (IRVINE)
By: _________________________________
Authorized Agent
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.