8/13/2019 Ulp Charge Berkeley (1)

1/3

Section 6 (d): Statement of ChargeBackground:

1.UAW Local 2865 (Union) and the University of California (Employer) are parties to a CollectiveBargaining Agreement (CBA) or Memorandum of Understanding (MOU) for the period December3, 2010, through September 30, 2013 covering Academic Student Emp loyees (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 ofCalifornia. Each campus has its own department with its own Chief.

1. The University of California Office of the President (UCOP) is responsible for labor negotiationswith statewide University of California unions. The chief negotiators are employees of UCOP's LaborRelations 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 Non-Discrimination and the Health & Safety Articles (Attachment C).

1.Included in the Union's Non-Discrimination Proposal were specific proposals that each building inwhich ASE Union represented employees work have Gender Neutral (unisex) and wheelchairaccessible bathrooms and private nursing stations for people who are lactating and at least onerefrigerator where represented employees could store expressed milk.

1.The Health & Safety proposal expanded management's responsibilities by requiring the Employer tomaintain in safe working condition the facilities and equipment.

1.On October 29, 2013, approximately fifty (50) Union represented employees at the Employer'sBerkeley campus went to Sproul Hall to deliver a letter signed by approximately 500 graduateAcademic Student Employees represented by the Union asking Graduate Dean Andrew Szeri to meetwith 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 feetaway) and walked together over to Sproul Hall (the building where Dean Szeri's office is located) atabout 1:45. They did no picketing, chanting or other demonstrative activity. They carried no signs intoSproul Hall. They went to the 4th floor where Dean Szeri's office is located, rang Dean Szeri'sdoorbell, knocked, called his office, and waited for about 15 minutes without answer. They decided togo back outside to make a decision together about what to do next. At about 2:15, they went back intothe building to try again to meet with the Dean. At this point, several police officers were stationedupstairs, one of whom at the end of the corridor ostentatiously filmed/videotaped them as they sat in thecorridor 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

8/13/2019 Ulp Charge Berkeley (1)

2/3

reported that Dianne Klein, an official spokesperson for the UC Office of the President, insisted suchsocial justice issues as discrimination against graduate students of color and women seeking to havechildren...are not within the purview of the contract. Our labor negotiators cant negotiate suchdemands, she wrote that Klein said in an email. These are matters that need to be taken upelsewhere. .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 todo any of the following: (a) Impose or threaten to impose reprisals on employees, todiscriminate 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 similarlanguage. 1

2. The District of Columbia U.S. Court of Appeals in 1998 has set forth the standard frameworkfor employer videotaping of employee activity:

The Board and the courts have long recognized that 'absent proper justificati on, 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, 1993WL 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 mereobservation because "pictorial recordkeeping tends to create fear among employees of futurereprisals." F.W. Woolworth, 310 N.L.R.B. At 1197. [NATIONAL STEEL ANDSHIPBUILDING 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 itstendency to coerce or a reasonable basis for anticipating picket line misconduct (NationalSteel and Shipbuilding, supra).

4. In the instant University of California situation, as in National Steel and Shipbuilding, nothingin the peaceful activities of the UC Petitioners, nor in the prior activities of the Union indicatedany basis to believe that violence or illegal activity would occur, and the continuation of thevideotaping long after the petitioners re-entered the building and peacefully and quietly sat inthe corridor (without blocking passage) justified the videotaping.

B. Refusal to Bargain (HEERA #3570 & 3571 (c)

1. HEERA # 3570 requires that Higher education employers, or such representatives as they maydesignate, shall engage in meeting and conferring with the employee organization selected asexclusive representative of an appropriate unit on all matters within the scope ofrepresentation.

2.Section 3571 (c) declares that it is an unfair labor practice for an employer to refuse to meet andconfer with an exclusive representative.

1 . Sec. 8. [ 158.] (a) It shall be an unfair labor practice for an employer to interfere with, restrain, or coerceemployees in the exercise of the rights guaranteed in section 7- (1) [section 157 of this title].

8/13/2019 Ulp Charge Berkeley (1)

3/3

2.Discrimination: PERB has long held that the issue of Discrimination is within the scope ofrepresentation and a mandatory subject of bargaining (Healdsburg Union High School District, Case SFCE-68, #375, 1984).

2.Health & Safety: PERB has also held that health and safety issues are within the scope ofrepresentation and a mandatory subject of bargaining (CSEA, Local 1000 v. State of California (Deptof Corrections), Decision #1381-S (2000) and CSEA Local 1000 v. State of California (ConsumerAffairs), #1711 S (2004).

2.The statements of the official representative of the UCOP that issues of discrimination and otherissues labeled social justice issues cannot be negotiated by the labor negotiators representing UCOPand the Regents constitute a refusal to meet and confer with UAW Local 2865 on mandatory subjectsof 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 theirrepresentatives to henceforth meet and confer in good faith on all the Union's proposals involvingdiscrimination, 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 theirrepresentatives 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 thatAcademic Student Employees work on each campus.5.