In November 2020, the University of California, Santa Cruz (University) sent a letter to its union leaders and representatives announcing that beginning with the winter quarter of 2021, it would prohibit employees from concurrently holding academic instructor appointments that are exempt from the federal Fair Labor Standards Act (FLSA) and non-instructional staff appointments that are not exempt from the FLSA. The University Council-American Federation of Teachers (UC-AFT) filed an unfair practice charge alleging that the University violated the Higher Education Employer-Employee Relations Act by unilaterally changing its concurrent appointment policy and modifying the Non-Senate Faculty bargaining unit without complying with the parties’ collective bargaining agreement or PERB’s unit modification regulations.
The Public Employee Relations Board (PERB) found that the University made an unlawful unilateral change by implementing a new concurrent appointment policy without providing UC-AFT notice to negotiate over the decision. To prove that unlawful unilateral change occurred, UC-AFT must show: (1) the employer changed the status quo; (2) the change concerned a matter within the scope of representation; (3) the change had a generalized effect on represented employees’ terms of employment; and (4) the employer reached its decision without first providing adequate notice.
The University sent a letter acknowledging there were “many employees on campus with multiple staff or academic appointments which cross bargaining units and FLSA statuses.” The letter did not, however, indicate the University was considering a prohibition against concurrently holding a non-exempt staff position and an exempt academic position. Moreover, PERB found that the University’s decision to adopt a prohibition against concurrent appointments in FLSA exempt and non-exempt positions was within the scope of representation because it involved the employment relationship, it was of concern to both management and employees, and the employer’s obligation to negotiate would not abridge its freedom to exercise prerogatives essential to the employer’s mission.
Therefore, PERB found in UC-AFT’s favor and ordered the University to rescind its policy that prohibited employees at the University from concurrently holding a non-exempt staff position and an exempt academic position.
Regents of the University of California, PERB Decision No. 2852H (February 9, 2023).