Regents of the University of California (Berkeley) (PERB 2696H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 3299,
Charging Party, 	Case No. SF-CE-1093-H
v. 	PERB Decision No. 2696-H
February 18, 2020	REGENTS OF THE UNIVERSITY OF
CALIFORNIA (BERKELEY),
Respondent.
Appearances: Leonard Carder, by Katherine R. Hallward and Andrew Ziaja, Attorneys
for American Federation of State, County and Municipal Employees, Local 3299;
Sloan Sakai Yeung & Wong, by Timothy G. Yeung and Susan J. Yoon, Attorneys for
Regents of the University of California.
Before Banks and Paulson, Members.
DECISION1
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the American Federation of State,
County and Municipal Employees, Local 3299 (AFSCME) to the proposed decision of
a PERB administrative law judge (ALJ), which dismissed the complaint and
AFSCME’s underlying unfair practice charge against the Regents of the University of
1 Pursuant to Government Code sections 3509, subdivision (a), and 3541.3,
subdivision (k), the Board has delegated this case for decision to a two-member
panel. Unless otherwise specified, all further statutory references herein are to the
Government Code.

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California (University). The PERB complaint, as amended, alleged that the University
had violated the Higher Education Employer-Employee Relations Act (HEERA)2 by
unilaterally repudiating provisions of the parties’ collective bargaining agreement
concerning contracting out, and unilaterally changing policy by contracting with
American Building Maintenance, Jensen Landscape Services, Inc., Zero Chaos, MGA
Healthcare Staffing, Inc., A&E Building Maintenance, and Performance First Building
Services for labor services at the Berkeley and San Francisco campuses.
PERB’s Office of the General Counsel issued the complaint on February 12,
2016. On March 8, 2016, the University answered the complaint denying the material
allegations and asserting a number of affirmative defenses. On April 15, 2016, an
informal settlement conference was held, but the matter was not resolved. A formal
hearing was held before the ALJ on September 13, 19, 20, and November 14, 16, and
17, 2016, and June 12, 13, 14, 22, and 23, 2017.3 The ALJ issued a proposed
decision on December 28, 2018, dismissing the complaint and underlying unfair
practice charge. AFSCME filed timely exceptions, and the University filed a timely
response.
On February 7, 2020, while the matter was pending before the Board on
exceptions, AFSCME notified PERB that the parties had reached a successor
memorandum of understanding which included settlement of this matter, and stated it
2 HEERA is codified at Government Code section 3565 et. seq. All statutory
references are to the Government Code unless otherwise indicated.
3 The complaint was amended twice during the course of the formal hearing.

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hereby withdrew the related unfair practice charge, with prejudice.4 AFSCME further
requested that the Board vacate the related proposed decision. On February 10,
2020, the University notified PERB that it joined AFSCME in requesting that the Board
allow the withdrawal of the unfair practice charge and exceptions in this case, as well
as joining the request to vacate the proposed decision.
DISCUSSION
Under its broad powers to “investigate unfair practice charges or alleged
violations of [HEERA], and to take any action and make any determinations in respect
of these charges or alleged violations as the board deems necessary to effectuate the
policies of [HEERA],” and to “take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the purposes of
[HEERA],” the Board has discretion to grant or deny requests to withdraw and dismiss
cases pending before the Board itself. (HEERA, § 3563, subds. (h), (m); State of
California (Department of Personnel Administration) (2010) PERB Decision No. 2152-
S, p. 5.) When an appeal pending before the Board involves a matter of continuing
public interest and a precedential ruling on the matter will be instructive to similarly-
situated parties, the Board has exercised its discretion by denying a request for
withdrawal, in the interest of justice. (Grossmont-Cuyamaca Community College
District (2009) PERB Order No. Ad-380, p. 2; Oakland Unified School District (1988)
PERB Order No. Ad-171a, p. 2; ABC Unified School District (1991) PERB Decision
No. 831b, p. 2.)
4 The Board treats this as a request to withdraw the underlying unfair practice
charge and withdraw the related exceptions.

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After carefully reviewing the parties’ requests and the entire record in this
matter, the Board finds that withdrawing AFSCME’s unfair practice charge with
prejudice, withdrawing the exceptions, and vacating the proposed decision are
consistent with the purposes of HEERA to promote harmonious and cooperative labor
relations between the State’s public institutions of higher education and their
employees. Accordingly, the Board grants the withdrawals and vacates the proposed
decision.
ORDER
We GRANT the request by American Federation of State County and Municipal
Employees, Local 3299, to withdraw its unfair practice charge in Case No. SF-CE-1093-
H, with prejudice, and to withdraw its exceptions. We GRANT the joint request by
American Federation of State County and Municipal Employees, Local 3299 and the
Regents of the University of California to VACATE the ALJ’s proposed decision dated
December 28, 2018.
Member Banks joined in this Decision.