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Temporary/Floater Settlement Agreement

December 2002

Settlement Agreement; PERB Case No. SF-CE-625-H

The Regents of the University of California ("the University") and the Coalition of University Employees ("CUE" or "Union") agree to settle the above-referenced case on the following terms:
  1. The parties agree to modify the tentative agreement reached on the Positions Article, as reflected in Exhibit 1 hereto. The provisions contained in Exhibit 1 hereto will go into effect on the effective date of this Agreement.

  2. As reflected in Exhibit 1 hereto, commencing with the effective date of this Agreement, Floater Appointments may not be extended beyond twenty-four (24) months. The period between June 25, 2002 and January 31, 2003, known as the "Extension Period" and described in the Side Letter Agreements attached as Exhibits 2 and 3 hereto, shall not be included in calculating the twenty-four month period.

  3. CUE shall have sixty (60) days from the effective date of this Agreement to file one or more grievances on behalf of Floater Appointees who allege they were in Floater Appointments in violation of the Positions Article, paragraph E.1.a. ("Grievant Class"). The Grievant Class shall be limited to individuals who (a) worked continuously in the same assignment in the same department doing the same work for at least 1500 hours between January 1, 2001 and June 25, 2002; and (b) the assignment referenced in paragraph 3 (a) above fell outside the scope of paragraph E.1.a of the Positions Article at some time between April 25, 2002 and June 25, 2002. In order to prevail in the grievances, CUE shall have the burden of proof to establish that the grievants: (a) worked continuously in the same assignment in the same department doing the same work for at least 1500 hours between January 1, 2001 and June 25, 2002; and (b) the assignment fell outside the scope of paragraph E.1.a of the Positions Article at some time between April 25, 2002 and June 25, 2002. CUE acknowledges and agrees that grievances filed after the expiration of the 60-day period are untimely. CUE further acknowledges and agrees that the grievance process outlined in this Settlement Agreement is the sole avenue of relief for claims that the University violated the terms of the Parties' Positions Article regarding Floater Appointments prior to the effective date of this Agreement.

    1. The grievance(s) shall be processed commencing with Step 2 of the grievance procedure, Article 7 of the parties' MOU. The time lines set forth in Step 2 shall be observed.

    2. If the grievance(s) are not satisfactorily resolved at Step 2 of the grievance procedure, they may be appealed to Step 3. The time lines set forth in Step 3 shall be observed.

    3. Grievances not resolved at the Step 3 level shall be submitted to final and binding arbitration. To the extent feasible, grievances shall be consolidated for submission to one arbitrator unless otherwise agreed by the parties.

  4. Agency Fees. Due to an inadvertent error, agency fees apparently were not deducted from Floater Appointees nor paid to CUE during the period January 1, 2001 through June 30, 2001, and the problem may be continuing at some locations. In full settlement of CUE's claim, the University shall reimburse CUE in the amount of Eight Thousand Five Hundred Dollars and no cents ($8,500.00), within sixty (60) calendar days after the effective date of this Settlement Agreement. The University shall not seek reimbursement of these agency fees from any of the affected Floater Appointees. Further, the University shall ensure that it is correctly deducting agency fees from Floater Appointees at all locations that have Temporary Employment Pools or Programs within thirty (30) calendar days after the effective date of this Settlement Agreement.

  5. CUE warrants and represents that it has not filed a claim with any administrative agency or initiated any legal proceeding regarding the agency fees that are the subject of paragraph 4 of this Settlement Agreement.

  6. CUE hereby releases and discharges the University, its agents, officers and employees from any and all claims, liabilities, demands and causes of action, known or unknown, fixed or contingent, including claims alleging a violation of HEERA, which CUE may have or claims to have against the University, its agents, officers and employees, arising from or related to the non-payment of agency fees as provided in paragraph 4 of this Settlement Agreement.

  7. CUE further releases and discharges the University and its agents, officers and employees from any and all claims, liabilities, demands and causes of action, known or unknown, fixed or contingent, including claims alleging a violation of HEERA, which CUE has or claims to have against the University, its officers, agents and employees, arising from or related to the parties' Positions Article, Section E., Temporary Employment Pools and Floater Appointments. CUE further promises never to file a lawsuit or to initiate any legal proceeding, including any administrative proceeding, to assert any such claims.

  8. The parties acknowledge that this Agreement shall not be construed as an admission by either party of any improper or unlawful conduct.

  9. Within five (5) working days of the effective date of this Agreement, CUE shall withdraw PERB Case No. SF-CE-625-H with prejudice.

  10. This Agreement may be executed in counterparts, and if so executed, each such counterpart shall have the force and effect of an original. This Agreement shall become effective on the date of the last signature below.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIACOALITION OF UNIVERSITY EMPLOYEES
Sharon Hayden, Assistant Director
Labor Relations, UCOP		Margy Wilkinson, Chief Negotiator
Approved as to form:Approved as to form:
Therese M. Leone, Attorney
For the Regents		Margot A. Rosenberg, Attorney
For CUE
Dated: December 5, 2002Dated: December 5, 2002
Exhibit 1

Modification to Tentative Agreement: Positions Article

December 5, 2002
To Be Effective On Effective Date of Settlement Agreement
In PERB Case No. SF-CE-625-H

E. TEMPORARY EMPLOYMENT POOLS & FLOATER APPOINTMENT

  1. Definition

    Temporary employment pools or programs (TEP) are operated by Human Resource Departments to serve campus/hospital/laboratory staffing needs.

    1. The primary goal of the TEP is to provide immediate administrative and technical support services to the University departments. Departments utilize TEP employees to complete special projects, to respond to workload fluctuations that are unusual or episodic in nature, to fill in for employees who are on leave, or to fill in during a recruitment period.

    2. A second goal is to provide the campus/laboratory/hospital with a viable source of candidates for its career and limited appointments.

  2. All individuals employed in temporary employment pools shall be appointed to a floater appointment.

    1. A "Floater Appointment" is an appointment reserved for use in temporary employment pools, established at any percent of full time up to twenty-four (24) months in duration.

    2. A Floater Appointee is not a Career, Casual-Restricted, Academic, Limited Appointment, or Per Diem employee.

    3. A Floater Appointee is "at will" and may be released from a Temporary Employment Pool for any reason and without just cause. Receiving a Floater Appointment is not a guarantee of work. Floater Appointees may be scheduled or not scheduled, or released from any assignment at the University's non-grievable discretion.

    4. Upon the commencement of a Floater Appointment, the Floater Appointee will receive a letter advising him/her that, although a Floater Appointment may be terminated at any time, floater appointments may not be extended beyond twenty-four (24) months. The letter will further inform the Floater Appointee that if he/she chooses not to be available for work for a period of 120 days or more, he/she can notify the University in advance, ending his/her appointment and taking a break in service. The letter also will inform the Floater Appointee that he/she must reapply in order to be readmitted to the TEP.

    5. The parties agree that the utilization of Floater Appointees in accordance with paragraph l.a above is a permissible use of TEP employees. The parties further agree that it is a misuse of the TEP program to utilize a Floater Appointee in the same assignment in the same department doing the same work for more than 1,500 hours in twenty-four months. Further, the use of successive floaters in the same assignment in the same department doing the same work shall create an inference that the University's use of floaters is not consistent with paragraph E.1.a. The following exclusions apply:

      1. Exclusion One: Floater Appointees may serve for more than 1,500 hours in one floater assignment if the Floater Appointee is assigned to replace an employee on leave that exceeds 1,500 hours. If the employee on leave does not return from leave, the Floater Appointee shall be converted to career retroactive to the first of the month following attainment of 1,500 hours, except that nothing in this subparagraph precludes the University from releasing the Floater Appointee from the assignment prior to the anticipated return date of the employee on leave.

      2. Exclusion Two: Floater Appointees may serve for more than 1,500 hours in one floater assignment if the position into which the Floater Appointee is assigned is not an "ongoing" position, in that the position is established and funded for eighteen months or less at any percent of time. In the event the position is funded beyond eighteen months, the Floater Appointee shall be converted to career retroactive to the first of the month following attainment of 1,500 hours; except that nothing in this subparagraph precludes the University from releasing the Floater Appointee from the assignment prior to the effective date of the funding extension.

      3. A Floater Appointee does not work 1,500 hours or more in any one assignment within the meaning of this Article (even if the Floater Appointee accrues a total of 1,500 or more hours during his/her Floater Appointment), if the 1,500 hours is accrued as a result of working in several short-term assignments.

  3. Conversion to Career

    1. If a Floater Appointee is allowed to serve in his/her Floater Appointment for a period of more than twenty-four (24) months without a break in University service of one hundred twenty (120) consecutive calendar days, the Floater Appointee shall be converted to a career appointment on the first day of the month following completion of the 24-month Floater Appointment.

    2. If a Floater Appointee has a break in University service for a period of 120 consecutive calendar days, that individual may be re-hired into a new Floater Appointment.

    3. If during his/her 24-month Floater Appointment, a Floater Appointee serves in one floater assignment in the same department doing the same work for more than 1,500 hours, s/he shall be converted to a career appointment on the first day of the month following completion of 1,500 hours in one assignment, unless one or both of the exclusions enumerated in paragraphs 2.e.l or 2.e.2 of this Article are applicable.

    4. Nothing in this Article shall otherwise prevent a Floater Appointee from attaining a career, limited appointment or other position through the recruitment process or other processes.

  4. Scheduling

    [We can delete this section because the wording has been incorporated into paragraph 2.c of this Article]

  5. Benefits

    [same as current T.A. language.]

  6. Contract Coverage

    When Floater Appointees are assigned to title codes covered by this contract, they are covered by the following Articles of this Agreement: Access, Agreement, Duration of Agreement, Health and Safety, Holidays, Hours of Work, Management Rights, Military Leave, Nondiscrimination in Employment, No Strikes, Parking, Payroll Deduction, Personnel Files, Positions, Rehabilitation, Severability, Shift Differential, Sick Leave, Uniforms, Vacation, appropriate sections of Wages, Waiver, Work-Incurred Injury or Illness, and Work Rules. With regard to the above-referenced Articles (with the exception of the Positions Article), Floater Appointees may use the grievance and arbitration procedures of this Agreement only to the extent provided in the applicable portions of the Articles identified in this section. An allegation that a Floater Appointee has been utilized in a manner inconsistent with paragraph E.1.a, paragraph E.2.e and/or paragraph 3 of this Positions Article shall be grievable and arbitrable. CUE shall have the burden of proof to show floater use that is inconsistent with paragraph E.1.a, paragraph E.2.e, and/or paragraph 3.

  7. [same language as current T.A. regarding notice requirement if a new location establishes a TEP]

  8. Employment Information Lists:

    [delete current paragraphs 8a - c --- out of date]

    1. The University shall continue to post on its FTP site, information for all Floater Appointees. The information shall include, but not be limited to, the type of information posted as of the date of the execution of this Agreement.

    2. In addition to the information posted on the FTP site, within 90 days following the effective date of this Agreement, locations with Floater Appointees shall provide CUE with the following information for all individuals in Floater Appointments: name, assignments held within preceding six (6) month period and number of hours worked in each assignment. Thereafter, the locations with Floater Appointees shall provide this information to CUE on a quarterly basis.

    [continue on with rest of Article]

Letter to PERB putting charge in abeyance

October 28, 2002

From: LEONARD, CARDER, NATHAN, ZUCKERMAN, ROSS, CHIN & REMAR, LLP

Via Hand Delivery

Jerilyn Gelt, Labor Relations Specialist
Public Employment Relations Board
San Francisco Regional Office
1330 Broadway, Ste. 1532
Oakland, CA 94612-2519

Re: PERB Case No. SF-CE-625-H

Dear Ms. Gelt:

In June 2002, the parties entered into an interim agreement, pursuant to which Charging Party Coalition of University Employees ("CUE") requested that Unfair Labor Practice Charge No. SF-CE-625-H (temporary employment pool) be placed in abeyance until October 31, 2002.

On October 22, 2002, the parties amended the interim agreement, and pursuant to that interim agreement, Charging Party requests that the charge remain in abeyance until January 31, 2003. A copy of the "Amendment to Side Agreement Regarding Temporary Employment Pools and Floater Appointments," is attached hereto.

Please feel free to call me if you would like additional information. Thank you.

Very truly yours,

LEONARD, CARDER, NATHAN, ZUCKERMAN,
ROSS, CHIN & REMAR, LLP

By: Margot A. Rosenberg

Enc.

cc: Carole Rossi
Margy Wilkinson
Exhibit 2

AMENDMENT TO SIDE AGREEMENT REGARDING TEMPORARY
EMPLOYMENT POOLS AND FLOATER APPOINTMENTS

Effective June 25, 2002, the Coalition of University Employees ("CUE") and The Regents of the University of California ("University") entered into a "Side Agreement Regarding Temporary Employment Pools and Floater Appointments (hereafter "Side Agreement Re Floaters"), a copy of which is attached hereto as Exhibit A [see Exhibit 3] and incorporated herein by reference.

WHEREAS, the parties desire to continue their discussions to resolve this dispute in a mutually beneficial manner which addresses their respective concerns; and

WHEREAS, the parties need additional time to work on an amicable resolution of this matter.

NOW, WHEREFORE, CUE and the University hereby agree to amend the Side Agreement Re Floaters" as follows:

  1. The Extension Period, currently defined in paragraph 1 of the Side Agreement Re Floaters as commencing on June 25, 2002 and continuing through October 31, 2002. shall hereafter be defined as commencing on June 25, 2002 and continuing through January 31, 2003.
  2. In all other respects, the Side Agreement Re Floaters shall remain the same.
  3. This Amendment may be executed in counterparts, and if so executed, each such counterpart shall have the force and effect of an original.
  4. The effective date of this Amendment shall be October 22, 2002.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIACOALITION OF UNIVERSITY EMPLOYEES
Sharon Hayden, Assistant Director
Labor Relations, Human Resources & Benefits.		Margy Wilkinson, Chief Negotiator
Approved as to form:Approved as to form:
Carole R. Rossi
Attorney for The Regents of the
University of California		Ari Krantz
Attorney for Coalition of
University Employees
Dated: October 22, 2002Dated: October 22, 2002
Exhibit 3

SIDE AGREEMENT REGARDING
TEMPORARY EMPLOYMENT POOLS
AND FLOATER APPOINTMENTS

This Side Agreement Regarding Temporary Employment Pools and Floater Appointments (hereafter "Agreement") is made and entered into by and between the COALITION OF UNIVERSITY EMPLOYEES (hereafter "CUE") and THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereafter "University").

WHEREAS, a dispute has arisen between the parties regarding the termination of certain Floater Appointments in the Temporary Employment Pools, and

WHEREAS, CUE has filed an unfair labor practice charge, Case No. SF-CE-625-H, with the Public Employment Relations Board regarding this matter, and

WHEREAS, CUE and the University desire to resolve this dispute in a manner that is mutually beneficial to both parties and which satisfies their respective concerns.

NOW, WHEREFORE, in consideration of the mutual promises herein contained, and to provide the parties an opportunity to work on an amicable resolution of this matter, CUE and the University agree as follows:

  1. Commencing on June 25, 2002 and continuing through October 31, 2002 (hereafter "Extension Period"), University employees in the clerical bargaining unit who serve in Floater Appointments ("Floater Appointees"), as the term Floater Appointment is defined In Article 27 of the parties' first collective bargaining agreement (hereafter "Article 27"), shall remain eligible to be employed as Floater Appointees, even though they will reach during the Extension Period, the eighteen (18) month limit established for Floater Appointments in Article 27. Floater Appointees who reach the 18-month limit during the Extension Period, and who wish to do so, shall be eligible during the Extension Period, to continue as Floater Appointees beyond the 18-month limit, without a break in service of one hundred twenty (120) consecutive calendar days, as provided in Article 27.E.3.

  2. During the Extension Period, Floater Appointees who serve beyond the 18-month limit without a 120-day break in service pursuant to this Agreement, shall not be entitled to conversion to career appointments, as provided in Article 27.E.3.

  3. As stated in Article 27.E.4, Floater Appointees may be scheduled or not scheduled, or released from any assignment as determined by the University, Appointment in a FIoater Appointment during this Extension Period, as at any other time is not a guarantee of work or a guarantee of a particular assignment. Floater Appointees are "at will," as provided in Article 27.E.2.c.

  4. Floater Appointees who, solely because they will be reaching the 18-month limit, have previously received from the University a notice of release from their Floater Appointments, with the date of release effective June 25, 2002 or beyond, shall be eligible to continue as Floater Appointees pursuant to this Agreement. However, this shall not be a guarantee either of work or a particular assignment.

  5. CUE shall immediately place Charge No. SF-CE-625-H in abeyance.

  6. The parties acknowledge that this Agreement shall not be construed as an admission by either party of any improper or unlawful conduct. Further, by entering into this Agreement, the parties acknowledge that they are preserving any arguments, positions or defenses they may have with regard to Charge No. SF-CE-625-H. and/or the meaning/intent of Article 27.

  7. This Agreement may be executed in counterparts, and if so executed, each such counterpart shall have the force and effect of an original.

  8. The effective date of this Agreement shall be June 25, 2002.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIACOALITION OF UNIVERSITY EMPLOYEES
Sharon Hayden, Assistant Director
Labor Relations, Human Resources & Benefits.		Margy Wilkinson, Chief Negotiator
Approved as to form:Approved as to form:
Carole R. Rossi
Attorney for The Regents of the
University of California		Ari Krantz
Attorney for Coalition of
University Employees
Dated: June 24, 2002Dated: June 24, 2002

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