Summary of the Berman Act as it Applies to UC Faculty
The Higher Education Employer-Employee Relations Act–commonly referred to as the Berman Act–(AB 1091) was signed into law on July 1, 1979. Although the Act covers all employees in California higher education, academic and non-academic, it includes many provisions carefully designed for conditions in the University of California, particularly those affecting faculty. Below are some of the highlights of the Berman Act as they affect faculty at UC.
“recognition requires majority (51%) support” 3573. An employee organization may become the exclusive representative for the employees of an appropriate unit for purposes of meeting and conferring by filing a request with a higher education employer alleging that a majority of the employees in an appropriate unit wish to be represented by such organization and asking the employer to recognize it as the exclusive representative. “employer will doubt 51% support and ask for a representation election” “other employee organizations may assert their right to represent the unit and claim that they have 30% support of the proposed membership unit” “if no other group steps forward, then a representation election would be between the group asserting 50% support and ‘no representation'” “if another group steps forward, then a representation election will be held including both employee organizations and ‘no representation’.”
UNIT OF REPRESENTATION
University faculty may choose to be represented in only two kinds of units. One is a unit that is limited to and must include all eligible Senate members on one campus. The other is limited to and must include all eligible Senate members in the entire University of California system (3579)(5)(e). Senate members in certain supervisory positions are ineligible. The Systemwide unit may come into being when as many as 35% of the Systemwide Senate members are represented in campus units . Then, upon petition, PERB will conduct an election among the entire Senate membership to determine whether a majority wishes to be represented in a Systemwide unity. (As an example, the establishment of campus units at Berkeley and Los Angeles, or at Los Angeles and Davis, would meet the 35% requirement).
University Authority to Bargain: State Control of Budget-Related Matters The Act designates the Regents as the University employer. It authorizes University officials to act for them in negotiating with representative organizations in both Systemwide and campus units. However, the University is required to “maintain close liaison with the Department of Finance and the Legislature” relative to bargaining which has fiscal ramifications and to make prompt request for appropriate governmental support after executing memoranda of understanding. No such memoranda shall be effective unit the required budgetary action has been taken. If the Legislature or the Governor fail to fund such memoranda fully, they shall be referred back to the parties for further bargaining.
Authorization cards secured from Senate members on a campus by prospective representative organizations indicate the degree of interest in collective bargaining on that campus. An organization supported by a majority of the faculty can be recognized as exclusive bargaining agent by the employer. It is more likely however, that an election will be held following a petition to PERB from an organization which can demonstrate support from at least 30 percent of Senate members. The ballot will list all organizations giving evidence of support of at least 10 percent of Senate membership. In addition, the ballot will offer the choice of “no representation.” An organization must receive a majority of votes cast to be certified as the exclusive representative of all Senate members on the campus. If two organizations are on the ballot and a majority of votes is not cast for either o them or for “no representation,” a run-off election will be held involving the two choices that received the largest votes.
An election will be conducted by PERB to decide whether a previously certified bargaining representative will be decertified if 30 percent of Senate members on campus sign a petition for that purpose. But such an election (or any election) cannot be held within 12 months of a preceding election or during the term of a memorandum of understanding between the employer and a bargaining representative unit that memorandum has been in effect three years.
SCOPE OF REPRESENTATION
The Act rigorously limits the scope of representation and, therefore, of bargaining both by unit and by subject matter.
Within a campus unit. Bargaining is limited “to those matters which have customarily been determined on a division basis, but the employer shall consult with the exclusive representative of a division on matters which would be within the scope of representation or consultation of a statewide representative.”
Bargaining is limited to “wages, hours of employment, and other terms and conditions of employment.” Excluded from bargaining are (See Article 1, General Provisions):
(1) Consideration of the merits, necessity, or organization of any service, activity, or program established by law or resolution of the Regents or the directors, except for the terms and conditions of employment of employees who may be affected thereby.
(2) The amount of any fees which are not a term or condition of employment.
(3) Admission requirements for students , conditions for the award of certificates and degrees to students, and the content and supervision of courses, curricula and research programs…
(4) Procedures and policies to be used for the appointment, promotion and tenure of members of the Academic Senate, the procedures to be used for the evaluation of members of the Academic Senate, and the procedures for processing grievances of members of the Academic Senate…
A representative organization has the right “to consult and be consulted” on the matters excluded from bargaining by paragraph (4), and the Academic Senate may decide that the matters in that paragraph shall be subject to bargaining.
The only form of compulsion relating to organizational membership permitted by the Act is maintenance of dues. If this is agreed upon between the parties, it will obligate the employer to deduct dues (and initiation fees and general assessments, if any) from the salaries of all faculty members who voluntarily join the representative organization, for the duration of the memorandum of understanding.
ARBITRATION OF GRIEVANCES
The employer and a representative faculty organization may agree to provide for final and binding decision by a third party of grievance disputes that arise between them under the terms of their memorandum.
If the employer and a representative faculty organization are unable to reach agreement on a subject within the permissible scope of bargaining, the Act provides that either party may declare that an impasse has been reached and may, first, request the PERB to appoint a mediator, and may, second, request PERB to appoint a panel to make findings of fact and recommend terms of settlement, the latter being advisory only. No compulsory method of final settlement is provided. There is no mention of the subject of strikes.
THE PERB BOARD
The Public Employment Relations Board is empowered to effectuate the Act by such means as deciding representation unit questions, conducting elections and certifying representative organizations, deciding what subjects are within the scope of representation, investigating and deciding unfair practice charges, and enforcing its decisions in court.
A representative of “the official student body association” has the right to be present and to comment at all bargaining meetings and impasse mediation meetings and the right of access to all documents exchanged between the parties.
Definitions of Labor Terms With Some References to the Berman Bill
Bargain means the performance of the mutual obligation of the University and the exclusive representative of its employees to meet and confer–to meet promptly at reasonable times and to confer in good faith upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions and proposals, and to endeavor to reach agreement on matters within the scope of representation. The agreement reached through bargaining is a memorandum of understanding (3562)(d).
Consult means that the employer meets in good faith with an employee organization to discuss employee/employer issues. There are no requirements to reach an agreement or procedures outlined to go beyond impasse. Furthermore, employee organizations may ask to consult with the employer on subjects outside the scope of representation.
Employee Organization means any organization which includes employees of the University and which has as one of its primary purposes representing such employees in their employment relations with the University. Employee organizations shall also include any person such an organization authorizes to act on its behalf. The Academic Senate of the University of California or other similar academic bodies, in whole or in part, shall not be considered employee organizations. Since the Academic Senate is not an employee organization, independently funded, it therefore cannot be charged with an unfair labor practice (3562g).
Exclusive Representation means any recognized or certified employee organization or person authorized to act on behalf of an employee organization.
Impasse means that the parties have reached a point in meeting and conferring at which their differences in positions are such that further meetings would be futile.
Labor Organization any organization, agency, or employee representation committee or plan in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rate of pay, hours of employment, or conditions of work.
Meet and Confer means Bargain.
Memorandum of Understanding means the agreement worked out between employer and employee to be in effect for a defined period of time.
Scope of Representation means the subject matter about which an employee organization can bargain. At the University of California scope of representation means and is limited to wages, hours of employment, and other terms and conditions of employment (3562)(q). This language is borrowed from the National Labor Relations Act (NLRA) and rather strictly limits the employer-employee contact. The Berman Act goes on to exclude academic issues from the scope of representation–fees, admission requirements, content and supervision of courses, curricula, and research programs– (3562)(q)(1-3). If, however, the academic senate determines that any matter concerning appointment promotion, and tenure of members of the academic senate, the procedures to be used for the evaluation of members of the academic senate, and the procedures for processing grievances of members of the academic senate should be within the scope of representation, the matter shall be within the scope of representation (3562 (q)(4). This is important because currently the whole structure of academic governance and the tenure system can be changed, at will, if the Regents so choose–unlimited scope of bargaining allows such issues into the contract if they should be jeopardized by action of the Regents.
Unfair Labor Practices means those activities forbidden to both employers and employees. For example, employers are forbidden from from engaging in practices that would interfere with, restrain, or coerce employees in the exercise of their rights, and similarly employees are forbidden from engaging in practices that would interfere with, restrain, or coerce either other employees or the employer in the exercise of their rights.
Unit of Representation means a specific class or group of employees. For example, at UC, faculty who are members of the Academic Senate are a unit . All other academic employees (those not in the Academic Senate) are a unit. Professional employees (other than academic) are a unit.
University means the Regents of the University of California, its duly appointed designee or designees or the physical property of The Regents, as the context requires. The Regents are the employers at the University of California (3562)(h).
University Employee or Employee means any person employed by the Regents of the University of California within the State of California except management employees and confidential employees (those employees with access to confidential information who develop and present management positions). Chairs of departments, chairs of senate committees, and heads of institutes are not automatically considered management or supervisory solely because they help administer the University (3562(l).