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UAW 2865 ULP Charge against Management Intimidation at UC Berkeley

UAW 2865 ULP Charge against Management Intimidation at UC Berkeley

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Published by: intimatedistances on Nov 19, 2013
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Section 6 (d): Statement of Charge Background:
1.
UAW Local 2865 (“Union”) and the University of California (“Employer”) are parties to a Collective Bargaining Agreement (“CBA”) or Memorandum of Understanding (“MOU”) for the
 period December 3, 2010, through September 30, 2013 (Attachment A) covering Academic
Student Employees (“ASEs”) at the Employer's nine campuses.
2. On or about May 7, 2013, negotiations began for a successor MOU, which continue. 3. The MOU contained a No-Strike Clause, Article 19. 4. The parties adopted a series of weekly extensions of the MOU through November 5, 2013, when the Union declined further extensions and the MOU expired. 5. On or about November 6, 2013, the Union concluded a membership vote which authorized its
leadership to call a strike, “in the event that circumstances justify”
 6. On or about November 8, 2013, upon being informed that AFSCME Local 3299, representing service and health care workers at the University's nine teaching campuses, had determined to engage in a one-day strike on November 20, 2013, Union leaders began openly discussing whether to engage in a one-day sympathy strike. 7. From November 8 - 10, 2013, the Union's Joint Council leadership group covering the nine teaching campuses, discussed and voted to endorse a one-day sympathy strike in support of AFSCME Local 3299, and so informed the Union's Bargaining Team. The next day,November 11, 2013, the Bargaining Team voted to call the Sympathy Strike. 8. University administrators then sent a series of communications to University graduate students regarding the upcoming sympathy strike. a) On November 14, 2013, UC Berkeley Executive Vice-Chancellor and Provost, George Breslauer sent a memorandum to campus Deans telling them that a sympathy strike by
members of the Academic Student Employee Union was illegal and that “they [must] meet their scheduled teaching responsibilities....” “Furthermore,” he added, “classes
 are expected to be taught at the assigned time and, in the assigned location unless a change is requested by the course instructor and approved in advance by the Department
Chair.” (
attachment B).  b) This memorandum was subsequently forwarded to Academic Student Workers by various department chairpersons (attachment C). c) At UC Irvine, the Graduate Division polled ASE's as to whether they intended to teach or strike that day (attachment D). It further informed workers that if they did not respond it would be presumed they were going to strike and if they did respond that they would teach, they could not then decide to strike. d) Department Chairs at the Irvine campus then emailed ASEs indicating that they were
responsible to avoid “disruption” from canceled classes and that once she knew wh
o hadn't taught she could not only make sure they didn't get paid but would consult with
Labor Relations “on all other matters.”
 e) At UC Davis, some departments forwarded a confusing Question & Answer document to ASEs regarding the management's contention that AFSCME had no legal right to strike,
 
 and stating that proper medical verification was needed to be paid, and without it ASE
strikers absence from work would be “unapproved.” (
attachment E) 9. By these actions, the University of California has deprived Academic Student Employees of their rights under HEERA Section 3565, and violated Section 3571 (a) by interfering with, restraining, and coercing employees because of their exercise their right to engage in a lawful sympathy strike.
Argument
 11. In 1985, the California Supreme Court recognized that a strike by public employees is lawful
under the common law unless the strike “creates a substantial and imminent threat to the health or safety of the public.” [
Los Angeles County Sanitation District #2 v. Los Angeles County Employees' Assn, 38 Cal.3d 564, 586 (1985)]. 12.
PERB has held that “HEERA does not prohibit strikes by employees of higher education employees.” It added that “whether a strike constitutes an unfair practice
is to be determined on the
facts of the particular case.” [
California Nurses Association v. Regents of the University of California, PERB Decision 2094-H (2010), 30-31]. 13. As the University is well aware, PERB also held in a prior case involving the University and the
 Nurses Association that “engaging in a sympathy strike constitutes an unfair practice only if prohibited  by the applicable CBA” (Collective Bargaining Agreement) [
Regents of the University of California v. California Nurses Association, PERB Decision 1638-H (2004), 4. See also, Oxnard Harbor District v. SEIU Local 998, PERB Decision 1580-M (2004), 6-7]. 14. The applicable CBA in this case between the Union and the University terminated November 5, 2013, fifteen days before the one-day sympathy strike on November 20, 2013. Thus, there was no  prohibition on sympathy strikes from the Memorandum of Understanding. 15.
PERB's decisions regarding “pre
-
Impasse” strikes are inapplicable here. PERB's decisions
declaring strikes of public employees illegal prior to the exhaustion of statutory Impasse deal solely with those strikes in which the issue involves a union's effort to pressure or leverage an employer to
resolve negotiations. Indeed, each case explicitly refers to the necessity of “concluding Impasse” and/or participating in “good faith” in negotiations and/or the impasse proceedings. Since “Impasse”
is a procedure that is required and applicable to HEERA and other California public employee statutes
 solely
 when resolving and concluding negotiations, the requirement to conclude Impasse procedings  before a Union may strike is irrelevant to whether a union can legally engage in a lawful sympathy strike, which, of course, has no procedure for Impasse, mediation, fact-finding or post-fact-finding negotiations.(see for example: Sacramento City Unifed School District (1987) PERB Order No. IR-49; Westminster School District (1982) PERB Decision No. 277; Fresno Unifed School District (1982) PERB Decision No. 208; Fremont Unifed School District (1980) PERB Decision No. 136, California  Nurses Association v. Regents of the University of California, PERB Decision 2094-H, (2010). 16. PERB has held that unlawful intent need not be proven in interference cases to find that a public employer violated an employees' right to be free from interference, restraint, and coercion when exercising their rights.
(Omnitrans PERB Decision No. 2030-M (2009);
Santee Teachers Association v. Santee Elementary School District, PERB Decision 1822 (2006) @10-11; Novato Federation of
 
Teachers Local 1986 v. Novato Unified School District, PERB Decision 210, (1982); University Professional and Technical Employees (UPTE) Local 9119 v. Regents of the University of California, PERB Decision 1188-H (1997)] 17. The NLRB has repeatedly held that if communications to employees and/or work rules would reasonably tend to chill employees in their exercise of section 7 rights, whether they explicitly do so or not, they are unlawful [see TT& W Farm Products Inc and Toney Williams, 358 NLRB #125 (2012); Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)].
Remedy:
UAW Local 2865 respectfully requests that PERB order the University of California to retract all emails, memoranda, and other written or oral communications that explicitly state or imply that Academic Student Employees may not engage in a protected sympathy strike, refrain from any discipline, harassment, and/or retaliation against employees who stuck, post a notice or its wrongdoing at every building where Academic Student Employees teach or work, cease and desist from further similar restraint, coercion, and intimidation, and any other appropriate remedy.

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