Lipow v. Regents of University of California

• Decision Date: 08 December 1975
• Citation: 126 Cal.Rptr. 515,54 Cal.App.3d 215
• Court: California Court of Appeals Court of Appeals
• Parties: , 91 L.R.R.M. (BNA) 2867 Arthur LIPOW et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent. Civ. 36065.

Page 515

126 Cal.Rptr. 515

54 Cal.App.3d 215, 91 L.R.R.M. (BNA) 2867

Arthur LIPOW et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

Civ. 36065.

Court of Appeal, First District, Division 1, California.

Dec. 8, 1975.

As Modified on Denial of Rehearing Jan. 6, 1976.

Van Bourg, Allen, Weinberg, Williams & Roger, Victor J. Van Bourg, Stewart Weinberg, San Francisco, for plaintiffs and appellants.

Donald L. Reidhaar, Milton H. Gordon, Berkeley, for defendant and respondent.

LAZARUS, ^* Associate Justice.

This is an appeal from a judgment below denying a petition for a writ of mandate to compel the Regents of the University of California to set aside the final revised version of section 52 of the University's Administrative Manual issued on February 1, 1973. The section in question deals, inter alia, with appointment and reappointment of instructors and professors.

The University Council of the American Federation of Teachers, AFL--CIO, was the sole petitioner when the proceedings were first commenced in 1971 for the issuance of a writ of mandate to compel respondent, by and through its representatives, to meet and confer with the council over any proposed changes in the academic personnel rules. The council is a labor organization representing a large number of the faculty members at the university. Arthur Lipow and John G. Leonard were added as petitioners by amendment to the petition filed over a year later. There was a pretrial conference at which a joint pretrial statement was filed in which the facts referred to hereinafter were admitted. At the subsequent trial, judgment was in favor of the respondent.

The crucial question here is as to whether or not the Regents did in fact meet and confer in good faith with appellant the University Council as the bargaining representative of the faculty members who belong to the University Council as required by Government Code section 3530. ¹

DID THE REGENTS MEET AND CONFER IN GOOD FAITH WITH THE UNIVERSITY COUNCIL?

Appellants' claim is based on Government Code section 3530 which directs that 'The state by means of such boards, commissions, administrative officers or other representatives as may be properly designated by law, shall meet and confer with representatives of employee organizations upon request, and shall consider as fully as such representatives deem reasonable such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.'

Respondent concedes, Arguendo, for purposes of this appeal that the Legislature has the authority to mandate the Manner in which the university conducts its personnel policies. ² And, although the state is only obligated under the express terms of Government Code section 3530 to 'meet and confer', respondent has also conceded that this must also of necessity include the implied element of 'good faith'.

Appellants, on the other hand, do not deny that they participated in various meetings with university officials at certain intervals while amendments to section 52 of the manual were under consideration. Nor do they argue that respondent was obligated to arrive at an agreement with appellants. What they do contend is that respondent failed to meet and confer in good faith and that in the final analysis the revisions to section 52 were therefore unilaterally enacted by the Regents.

A. Stipulated facts.

The question thus presented must be resolved within the framework of the following stipulated facts:

'The University Council of the American Federation of Teachers is an Employee Organization within the meaning of Government Code Sections 3500, 3526 and 3530. The University Council has been recognized by the University of California as representing academic employees of the University of California. The University of Calfornia has met and conferred with the University Council of the American Federation of Teachers and the Local Unions affiliated with it on some of the campuses of the University of California. Arthur Lipow and John G. Leonard were, at times material to the Petition, employees of the University of California and members of the University Council. Arthur Lipow was first hired in the school year 1967 as a lecturer. Since 1970 he has been employed as an assistant professor at the Davis campus of the University of California. John G. Leonard was hired as an acting assistant professor on July 1, 1968, and was appointed assistant professor on July 1, 1970 at the San Diego campus specializing in Indian History. He was on leave without pay in India from July 1, 1970 to June 30, 1971 and was returned to his appointment as an assistant professor until his employment terminated on June 30, 1973.

'The Regents of the University of California is a body created by the Constitution of the State of California, and has the responsibility of administering the University of California. The President of the University is Charles Hitch. On July 9, 1970, President Hitch issued a memorandum announcing proposed changes of Rule 52 of the Administrative Manual dealing with policies and procedures concerning appointments, appraisals, and notifications of intention not to reappoint instructors and assistant professors. This memorandum contained a set of Interim Rules of govern these positions and procedures until the final language of Rule 52 could be settled.

'While Arthur Lipow served as a lecturer, the Administrative Manual defined lecturer as an individual 'not under consideration for appointment in the Professorial Series'. However, at the same time, the Handbook for Faculty Members of the University of California, as early as February 1963 and as late as May, 1968, stated that length of service as a lecturer and assistant professor is calculated in reviewing an employee for promotion and tenure. The March 1970 Handbook omits this reference. However, at all times it has been known that assistant professors are expected to engage in such scholarly pursuits as research and writing, whereas research is not required of a person serving in the position of lecturer. Rule 52 of the Administrative Manual contains the criteria for evaluating those persons eligible for tenure and promotion, that is, those persons in the Professorial Series which does not include lecturers; one such criterion is research. The Interim Rules set forth by President Hitch on July 9, 1970 omit reference to lecturers as part of the Professorial Series.

'In May of 1973, Petitioner Lipow was notified that his years as a 51% Or more time lecturer would be counted toward his tenure and promotion review and that, consequently his lack of research during those years would be considered in his tenure and promotion review. This was based upon the 1973 revision of Rule 52 which in turn was based upon the University's interpretation of the February 1963 and May 1968 Handbook for Faculty Members which had never before been a part of the Administrative Manual. The only notice that Lipow could have had while he was a lecturer that his time would be considered for promotion and tenure in the Professorial Series was contained in the Handbook for Faculty Members, but this information was not in the Administrative Manual. There was no notice at any time in the Handbook for Faculty Members specifically imposing the requirement of research upon lecturers prior to the change in the Administrative Manual in 1973. Petitioner Lipow did not perform research while he served as a lecutrer. The 1973 version of Rule 52 encourages the possibility of an early review of assistant professors.

'Petitioner Leonard was notified of his non-reappointment on December 1, 1971. He appealed the decision to the San Diego Campus Committee on Privilege and Tenure where it was affirmed. Part of the reason for the non-reappointment was the fact that Indian History was being cut back on the San Diego campus, and Indian History happened to be Petitioner Leonard's specialty. At the time this decision was made, programatic changes were not specifically stated in Rule 52 and did not become a formal part of Rule 52 until 1973. The application of the proposed changes of Rule 52 were made to Petitioner Leonard while Petitioner Leonard's representative, the University Council, was attempting to meet and confer with the University.

'On November 9, 1970, Angus Taylor, Vice President of the University of California For Academic Affairs, issued a draft revision of Section 52 as a proposal.

'On February 5, 1971, Respondent received a letter addressed to President Hitch dated February 4, 1971 requesting a meeting to discuss the July 9, 1970 announcement of proposed changes in Rule 52. The November 9, 1970 proposed revision of Section 52 was distributed on that date only to the Chancellors of the various campuses of the University of California, and not to Employee Organizations such as Petitioner.

'On March 2, 1971, Vice President Taylor of the Respondent, as employee and agent of the Respondent, answered the request to meet and confer by stating that there was no need to meet in person and, instead, encouraging a telephone conversation. A meeting was arranged and did take place at the Davis campus on April 23, 1971 between representatives of the University Council and Vice President Taylor. The Meeting of April 23, 1971 was terminated, and the Respondent University insisted that any further meetings be conducted on the campus level rather than on the University-wide level. Accordingly, meetings were held between the Local Unions affiliated with Petitioner University Council on the various campuses during May, June and July of 1971 concerning the first draft revision of Section 52, dated November 9, 1970.

'On October 5, 1971, Vice President Taylor distributed a second draft revision of Section 52, and sent a copy to the University Council. The University Council...