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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 covering Academic Student Employees (“ASEs”) at nine of the Employer's campuses (Attachment A). This Agreement has been extended by the parties until November 5, 2013. (Attachment B). 1. The University of California Police Department is established by the Regents Of the University of California. Each campus has its own department with its own Chief. 1. The University of California Office of the President (UCOP) is responsible for labor negotiations with statewide University of California unions. The chief negotiators are employees of UCOP's Labor Relations Division. 1..On or about May 7, 2013, the parties began negotiations for a successor MOU, which are continuing. 1.The MOU contains a Non Discrimination, Article 20, and a Health & Safety provision, Article 13. 1.During the negotiations the Union has made proposals to broaden coverage of the NonDiscrimination and the Health & Safety Articles (Attachment C). 1.Included in the Union's Non-Discrimination Proposal were specific proposals that each building in which ASE Union represented employees work have Gender Neutral (unisex) and wheelchair accessible bathrooms and private nursing stations for people who are lactating and at least one refrigerator where represented employees could store expressed milk. 1.The Health & Safety proposal expanded management's responsibilities by requiring the Employer to maintain in safe working condition the facilities and equipment. 1.On October 29, 2013, approximately fifty (50) Union represented employees at the Employer's Berkeley campus went to Sproul Hall to deliver a letter signed by approximately 500 graduate Academic Student Employees represented by the Union asking Graduate Dean Andrew Szeri to meet with them and to support the Union's economic and other demands including the proposals for unisex bathrooms and lactation facilities. (Attachment D). 1.The student employees gathered in front of California Hall around 1:30 (a building maybe 500 feet away) and walked together over to Sproul Hall (the building where Dean Szeri's office is located) at about 1:45. They did no picketing, chanting or other demonstrative activity. They carried no signs into Sproul Hall. They went to the 4th floor where Dean Szeri's office is located, rang Dean Szeri's doorbell, knocked, called his office, and waited for about 15 minutes without answer. They decided to go back outside to make a decision together about what to do next. At about 2:15, they went back into the building to try again to meet with the Dean. At this point, several police officers were stationed upstairs, one of whom at the end of the corridor ostentatiously filmed/videotaped them as they sat in the corridor for the next 45 minutes or so quietly doing work, at which point they voluntarily left. (Attachment E – Beezer Statement)
1. A reporter
for the campus newspaper, the Daily Cal, covered the event. (Attachment F). She
reported that Dianne Klein, an official spokesperson for the UC Office of the President, insisted such “social justice” issues as “discrimination against graduate students of color and women seeking to have children...are not within the purview of the contract.” “Our labor negotiators can’t negotiate such demands,” she wrote that Klein said in an email. “These are matters that need to be taken up elsewhere.”
Argument A. Photographing and/or Videotaping Employee Protected Activity (HEERA 3571 (a)
1. Section 3571 (a) of HEERA states that “ It shall be unlawful for the higher education employer to do any of the following: (a) Impose 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” (emphasis added). The National Labor Relations Act, Section 8 (a) (1) contains similar language.1 2. The District of Columbia U.S. Court of Appeals in 1998 has set forth the standard framework for employer videotaping of employee activity: “The Board and the courts have long recognized that 'absent proper justification, the photographing of employees engaged in protected concerted activities violates [ § 8(a)(1)] because it has a tendency to intimidate.' F.W. Woolworth Co., 310 N.L.R.B. 1197, 1197, 1993 WL 135443 (1993); see also Road Sprinkler Fitters Local Union No. 669 v. NLRB, 681 F.2d 11, 19 (D.C.Cir.1982) (citing cases); Waco, Inc., 273 N.L.R.B. 746, 747, 1984 WL 37122 (1984) (same). In Woolworth the Board concluded that photography and videotaping go beyond mere observation because "pictorial recordkeeping tends to create fear among employees of future reprisals." F.W. Woolworth, 310 N.L.R.B. At 1197.” [NATIONAL STEEL AND SHIPBUILDING COMPANY, v. NATIONAL LABOR RELATIONS BOARD, 156 F.3d 1268 (1998); see also 324 NLRB #85 (1997)].” 3. In finding that the NLRB correctly found the videotaping violated the ACT, the Court acknowledged that “a reasonable, objective justification for video surveillance mitigates its tendency to coerce” or “a reasonable basis for anticipating picket line misconduct” (National Steel and Shipbuilding, supra). 4. In the instant University of California situation, as in National Steel and Shipbuilding, nothing in the peaceful activities of the UC Petitioners, nor in the prior activities of the Union indicated any basis to believe that violence or illegal activity would occur, and the continuation of the videotaping long after the petitioners re-entered the building and peacefully and quietly sat in the corridor (without blocking passage) justified the videotaping. B. 1. Refusal to Bargain (HEERA #3570 & 3571 (c)
HEERA # 3570 requires that “Higher education employers, or such representatives as they may designate, shall engage in meeting and conferring with the employee organization selected as exclusive representative of an appropriate unit on all matters within the scope of representation.” 2.Section 3571 (c) declares that it is an unfair labor practice for an employer to refuse to meet and confer with an exclusive representative. . “Sec. 8. [§ 158.] (a) It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7-(1) [section 157 of this title].” 1
2.Discrimination: PERB has long held that the issue of Discrimination is within the scope of representation and a mandatory subject of bargaining (Healdsburg Union High School District, Case SF CE-68, #375, 1984). 2.Health & Safety: PERB has also held that health and safety issues are within the scope of representation and a mandatory subject of bargaining (CSEA, Local 1000 v. State of California (Dept of Corrections), Decision #1381-S (2000) and CSEA Local 1000 v. State of California (Consumer Affairs), #1711 S (2004). 2.The statements of the official representative of the UCOP that issues of discrimination and other issues labeled “social justice issues” cannot be negotiated by the labor negotiators representing UCOP and the Regents constitute a refusal to meet and confer with UAW Local 2865 on mandatory subjects of bargaining in its proposals and thus violate HEERA 3570 and 3571 (c). Remedy UAW Local 2865 requests all appropriate remedies, including but not limited to: 1.A cease and desist order requiring the Regents of the University of California and their representatives to henceforth meet and confer in good faith on all the Union's proposals involving discrimination, on health and safety related matters (including but not limited to unisex bathrooms, lactation facilities); 2.A cease and desist order requiring the Regents of the University of California and their representatives from videotaping Union activities, including but not limited to petitioning; 3.Delivery of all tapes and any copies made by University officers to the Union for destruction; 4.A posting of its orders throughout all of the University's campuses and in all buildings and places that Academic Student Employees work on each campus. 5.
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