Trustees of the California State University (PERB 1658H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ACADEMIC PROFESSIONALS OF
CALIFORNIA,

Charging Party, Case No. LA-CE-723-H

V. PERB Decision No. 1658-H

TRUSTEES OF THE CALIFORNIA STATE July 13, 2004

UNIVERSITY,

Respondent.

Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for Academic
Professionals of California; Janette Redd Williams, University Counsel, for Trustees of the
California State University.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the Academic Professionals of California (APC) of a Board agent’s dismissal
(attached) of its unfair practice charge. The charge alleged that the Trustees of the California
State University (CSU) violated the Higher Education Employer-Employee Relations Act
(HEERA)' by making unilateral changes in the process for reviewing the reporting of improper
governmental activities.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters, APC’s appeal and CSU’s

response. The Board finds the warning and dismissal letters to be free of prejudicial error and

adopts them as the decision of the Board itself.

'HEERA is codified at Government Code section 3560, et seq.

ORDER
The unfair practice charge in Case No. LA-CE- 723-H is
hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and
Member
Whitehead joined in this Decision.
2

' lT '\TE OF CALIFORNIA 	r
.iOBLIC EMPLOYMEN'I" RELATIONS BOARD
(
0
NOLD SCHWARZENEGGER, Governor
================-
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3543
Fax: (213) 736-4901
January 20, 2004
Lee
0.
Norris, Labor Relations Representative
Academic Professionals
of
California
8726-D S. Sepulveda Blvd.,
#Cl
72
Los Angeles, CA 90045
Re: 	Academic Professionals
of
California
v.
Trustees
of
the California State University
Unfair Practice Charge No. LA-CE-723-H, First Amended Charge
DISMISSAL LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2002. The Academic Professionals of California
APC) alleges that the Trustees
of
the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA) 1 by making unilateral changes in the
process for reviewing the reporting of improper governmental activities.
I indicated to you in my attached letter dated September 29, 2003 that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 6, 2003, the charge would be
dismissed.
I received a First Amended Charge on October 3, 2003. The initial charge provided that on
May 24, 2002, APC received notice that CSU was implementing Executive Orders (EO) 821
and 822. In reviewing said documents, CFA learned of EO 664 which was implemented in
1997. EO 821 (Reporting Procedures for Protected Disclosure of Improper Governmental
Activities and/or Significant Threats to Health or Safety) requires CSU to give to a
"whistleblower" complainant "what if any, actions were taken" by the employer against
someone found to have violated the policy. You alleged that this would include personnel
actions and is a unilateral change by CSU.
The amended charge provides additional information concerning EO 821 asserting that the
policy unilaterally permits CSU to determine if an allegation of misconduct has been
"substantiated." Based on CSU's own findings, it can then give to the complainant
confidential personnel information including proposed disciplinary action. APC asserts that
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-723-H
January 20, 2004
Page 2
the past practice was that information regarding proposed discipline from allegations
of
misconduct were maintained as confidential until the matter was appealed to the State
Personnel Board where they became public records as a matter
of
course.
EO 821 provides,
Within ninety (90) days of receipt
of
the protected disclosure, the
vice chancellor
of
human resources shall issue a formal response
to the complainant that includes whether the actions were
substantiated and what, if any, actions were taken. Care shall be
taken to protect the privacy interests
of
those involved."
(emphasis added.)
We discussed the charge on January 16, 2004 and I asked
if
APC had any information, facts or
examples of CSU investigating a complaint, finding that the charges were "substantiated", and
then releasing confidential personnel records
of
proposed discipline to the complainant. 	You
indicated that you did not have any additional factual information or specific examples.
In determining whether a party has violated HEERA section 3571(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: 	(1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
Although this letter does not decide whether the alleged change in policy is negotiable, even
assuming that it is within the scope of bargaining, the meaning of the above EO 821 is vague in
requiring CSU to respond to the complainant with information on what, if any actions were
taken against the charged employee, but to also use "care ... to protect the privacy interest of
those involved." Without additional facts or examples of information actually released, it has
not been demonstrated that CSU will in fact divulge to the complainant specific information
about any proposed disciplinary action. Accordingly, this unilateral change allegation must be
dismissed.

LA-CE-723-H
January 20, 2004
Page 3
(
EO 822 involves investigations into "Allegations of Retaliation under the California
Whistleblowers Protection Act" and provides that employees are required to cooperate in the
investigation and be honest in giving information to investigators. EO 664 has a similar
requirement. It is alleged that this is a unilateral change. The amended charge asserts that the
EO's
create a system that allows CSU to require employees to answer questions where the
statements made or information obtained may become a basis for discipline. Also, the
employee "may not know to invoke his/her Weingarten rights;" and employees are required to
participate
if
the complainant or CSU believe, without proof, that they may be witnesses.
The amended charge discusses the past practice in such an investigation by indicating that CSU
had one method for interviewing employees charged with misconduct. The accused employee
was advised that he or she was suspected of misconduct and that they were required to answer
questions during the investigation. Where the accused employee requested representation,
CSU could either wait for the employee's representative or cancel the meeting
if
it did not
wish to proceed with the representative present.
The facts alleged do not demonstrate there has been a change in policy. Whether under the
new or the old policy, it is presumed that an employee should participate by cooperating and
giving honest answers. In addition, I note that EO 822 does not attempt to supplant collective
bargaining as it provides in part,
If
the provisions
of
this executive order are in conflict with the
provisions of a memorandum of understanding reached pursuant
to Government Code section 3560, et seq., the memorandum of
understanding shall be controlling.
Therefore, this allegation must be dismissed.
The initial charge also alleges that EO 822 provides no guarantee of union representation for
employees subject to investigation. My letter dated September 29, 2003 discussed in detail the
law on an employee's right to union representation. I still conclude that you have not provided
facts which demonstrate that employee rights to representation will be violated by the
procedures of EO 822. We cannot assume that CSU will refuse a valid request for
representation in a "whistleblower" investigation. Furthermore, I am not aware of any legal
authority that requires that an employer must set forth representational rights when creating an
investigatory procedure. Therefore, this allegation must also be dismissed.
Accordingly, I am dismissing the charge based on the facts and reasons contained above and in
my September 29, 2003 letter.

LA-CE-723-H
January 20, 2004
Page4
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-723-H
January 20, 2004
Page 5
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By 	1)1/au_S,~..
Marc S. Hurwitz
Regional Attorney
Attachment
cc: Janette Redd Williams & Marc D. Mootchnik, University Counsel

STA:fE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3543
Fax: (213) 736-4901
September 29, 2003
Lee 0. Norris, Labor Relations Representative
Academic Professionals of California
8726-D S. Sepulveda Blvd., #Cl 72
Los Angeles, CA 90045
( 	GRAY DA VIS, Governor
Re: 	Academic Professionals of California v. Trustees of the California State University
Unfair Practice Charge No. LA-CE- 723-H 	·
WARNING LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2002. The Academic Professionals of California
APC) alleges that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA)1 by making unilateral changes in the
reporting of improper governmental activities.
Your charge states the following. On May 24, 2002, APC received notice that CSU was
implementing Executive Orders (EO) 821 and 822. While investigating these documents, CPA
became aware of EO 664 which was implemented in 1997.
EO 821 permits the employer to release to a "whistleblower" complainant "what, if any,
actions were taken" by the employer against someone found to have violated the policy. 	You
allege that this would include personnel actions and is a unilateral change by the employer.
You have provided no information on the past practice regarding privacy of personnel actions
in such cases.
In determining whether a party has violated HEERA section 3571(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

(
Without information setting forth the employer's past practice or policy it cannot be
determined that a change has occurred. Accordingly, this allegation must be dismissed.
EO 822 relates to investigations into "whistleblower" complaints and states that employees are
required to cooperate and be honest in providing information to investigators. EO 664 has a
similar requirement. You state that the employer did not negotiate over this requirement.
Again, you have provided no information regarding the employer's past policy in such an
investigation. Thus, you have not demonstrated a change. These allegations must also be
dismissed.
You also allege that the investigative procedure of EO 822 does not provide a guarantee of
Union representation for employees subject to investigation.
An employee required to attend an investigatory interview with the employer is entitled to
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten2 rule in Rio Hondo Community
College District (1982) PERB Decision No. 260. In order to establish a violation of this right,
the charging party must demonstrate: (a) the employee requested representation, (b) for an
investigatory meeting, (c) which the employee reasonably believed might result in disciplinary
action; and (d) the employer denied the request. (See Redwoods Community College District
v. Public Employment Relations Board (1984) 159 Cal.App.3d 617.; Fremont Union High
School District (1983) PERB Decision No. 301.)
In Rio Hondo Community College District (1982) PERB Decision No. 260, the Board cited
with approval Baton Rouge Water Works Company (1979) 246 NLRB 995, which provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose of informing the
employee that he or she is being disciplined.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
conversations as, for example, the giving of instructions or training or needed corrections of
work techniques;" (Weingarten, quoting Quality Manufacturing Co. (1972) 195 NLRB 197,
199 [79 LRRM 1269, 1271].)
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods
Community College District v. PERB (1984) 159 Cal.App.3d 617 [205 Cal.Rptr. 523].) The
finding of "highly unusual circumstances" in the Redwoods case was based on the requiremen.t
2In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the Court granted employees the right to representation during disciplinary interviews.

LA-CE-723-H
September 29, 2003
Page 3
that the employee attend a meeting which she no longer sought over her appeal
of
a negative
performance rating; the fact that the interview was investigatory and formal; the interview was
held by a high-ranking official
of
the employer; and the hostile attitude
of
the official toward
the employee.
You have not set forth facts which demonstrate that employee rights to representation will
necessarily be violated by the procedures
of
BO 822. It cannot be assumed that the employer
will refuse a valid request for representation in a "whistleblower" investigation. Additionally,
I am aware
of
no legal authority which mandates that an employer must set forth
representational rights when establishing an investigatory procedure. Accordingly, this
allegation must also be dismissed.
Please note that I called you on Friday, September 26, 2003, to discuss this case and left a you
a message to call me. We traded several electronic-mail messages today and it was decided
that I would send you this letter.
For the above reasons the charge, as presently written, does not state a prima facie case.
If
there are any factual inaccuracies in this letter or additional facts that would correct the
deficiencies explained above, please amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by the charging party. The amended charge must have the case number written on the
top right hand corner of the charge form. The amended charge must be served on the
respondent's representative and the original proof of service must be filed with PERB.
If
I do
not receive an amended charge or withdrawal from you before October 6, 2003, I shall dismiss
your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Marc S. Hurwitz
Regional Attorney
MSH