Trustees of the California State University * * * OVERRULED by Sonoma County Superior Court (2015) PERB Decision No. 2409-C (PERB 1853H)

OVERRULED by Sonoma County Superior Court (2015) PERB Decision No. 2409-C
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-895-H
PERB Decision No. 1853-H
August 29, 2006
Appearances: Brian Young, Labor Relations Representative, for California State University
Employees Union.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California State University Employees Union (CSUEU) 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-
Employees Relations Act (HEERA)1 by retaliating against Dan Necochea (Necochea) for
engaging in protected activities, denying Necochea adequate union representation in two
separate meetings, making unilateral changes to the terms and conditions of Necochea's
employment, and failing to provide information to CSUEU. CSUEU alleged that this conduct
constituted a violation of HEERA section 3571(a), (b), (c) and (e).
1HEERA is codified at Government Code section 3560, et seq.

The Board has reviewed the entire record in this matter, including but not limited to, the
unfair practice charge, CSU's position statement, the warning and dismissal letters, and
CSUEU's appeal. The Board finds the warning and dismissal letters to be free from prejudicial
error and adopts them as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-895-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
A typographical error is corrected on page 6 of the warning letter by substituting
Regents of the University of California (Los Alamos National Laboratory) (2003) PERB
Decision No. 1519-H for Regents of the University of California (Los Alamos National
Laboratory) (2003) PERB Decision No. 1579.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Los Angeles Regional Office
3530 Wilshire BIvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
R
August 9, 2005
Brian Young, Labor Relations Representative
California State Employees Association
175 Halsey Street
Chula Vista, CA 91910
Re: 	California State University Employees Union v. Trustees of the California State
University
Unfair Practice Charge No. LA-CE-895-H
DISMISSAL LETTER
Dear Mr. Young:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 17, 2005. The California State University Employees Union
("Union" or "CSUEU") alleges that the Trustees of the California State University
("University" or "CSU") violated the Higher Education Employer-Employee Relations Act
(HEERA)" by retaliating against Dan Necochea for engaging in protected activities, denying
Mr. Necochea adequate union representation in two separate meetings, making unilateral
changes to the terms and conditions of Mr. Necochea's employment, and failing to provide
information to the Union.
indicated to you in my attached letter dated July 27, 2005 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 August 5, 2005 the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my warning letter.
Right to Appeal
Pursuant to PERB Regulations," 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
HEERA 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.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-895-H
August 9, 2005
Page 2
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
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

LA-CE-895-H
August 9, 2005
Page 3
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
Dennis K. Lee
Board Agent
Attachment
cc: Steven Raskovich

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B	R
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
R
July 27, 2005
Brian Young, Labor Relations Representative
California State University Employees Association
175 Halsey Street
Chula Vista, CA 91910
Re: 	California State University Employees Union v. Trustees of the California State
University
Unfair Practice Charge No. LA-CE-895-H
WARNING LETTER
Dear Mr. Young:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 17, 2005. The California State University Employees Union
("Union" or "CSUEU") alleges that the Trustees of the California State University
("University" or "CSU") violated the Higher Education Employer-Employee Relations Act
(HEERA)" by retaliating against Dan Necochea for engaging in protected activities, denying
Mr. Necochea adequate union representation in two separate meetings, making unilateral
changes to the terms and conditions of Mr. Necochea's employment, and failing to provide
information to the Union.
The CSUEU represents employees of "Bargaining Unit 9" in the CSU system. San Diego
State University (SDSU) is a campus of the CSU. Dan Necochea is a SDSU Bargaining Unit 9
employee with an Administrative Analyst/Specialist (AAS) classification. He is currently on
medical leave from his employment. Necochea and two other SDSU employees (collectively
"MSW employees") were assigned to the Materials Services Warehouse (MSW) in SDSU's
Physical Plant Department. In July 2003, the University notified the Union that it intended to
contract out the MSW to a private company, and as a result, the MSW employees would be
reassigned to other locations of the campus. Since October 2003, the University and the Union
have been meeting and conferring over the impact of the MSW contracting out and no impasse
has been declared. Necochea served as a member of the bargaining team.
Following the MSW contracting out, Necochea was assigned to SDSU's "Quonset hut" in
January 2005". He was placed on administrative leave shortly after he complained of health
HEERA 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.
According to the University, the contracting out was officially implemented in June
2005

LA-CE-895-H
July 27, 2005
Page 2
problems. Responding to Union concerns that the University had unilaterally altered work
assignments for the three MSW employees, Christine Delgado, Associate Director of Human
Resources at SDSU, provided the Union with the MSW employees' position descriptions in
March 2005. These position descriptions showed no changes from prior MSW assignments.
However, the Union argues that all three MSW employees have been reassigned to other areas
of the campus to perform different duties. The Union emphasizes that Necochea's new duties
and working conditions were especially different from his old position at MSW.
On April 19, 2005 Necochea met with John Eaddy, Assistant Director of Physical Plant at
SDSU. Necochea was told that he was being reassigned to the basement of a campus parking
structure "to count discarded supplies." Displeased with his new assignment, Necochea told
Eaddy that the new assignment was "horse shit" after the conversation became heated.
On April 20, 2005, Necochea was asked to report to Eaddy at 6:00 a.m. on the following day.
According to the Union, Union representative Brain Young contacted Delgado to express
concerns that the meeting could be disciplinary and the early meeting time could make it
difficult to get a Union steward there. Delgado assured Young that the purpose of the meeting
was to discuss work assignments, not disciplinary. On April 21, Necochea met with Eaddy as
instructed and was given a letter of reprimand for comments he made in the April 19 meeting.
After being reassigned to the basement of the parking structure, Necochea again experienced
respiratory problems. He has been on administrative medical leave since.
In an effort to determine possible disparate treatment for Nechchea and to evaluate other
disability accommodation issues, the Union requested the following information from the
University on April 27, 2005:
1) Up-to-date description of the actual assignment of Necochea, Brazwell and Vargas
(MSW employees)
2) A copy of all records and documents associated with the reprimand of Necochea,
including any department reports, notes to the file, correspondence and email, and the
names of witnesses to the events described in the reprimand
3) A list of employees in Physical Plant who have been either reasonably
accommodated or disability retired over the past 36 months
4) Provide a copy of any reports and associated correspondence regarding the health
and safety of work areas for Physical Plant personnel, including reports and
correspondence from Environmental Health and Safety on campus, State Fire Marshall
and Cal-OSHA
The Union had requested items 1 and 4 in an earlier correspondence dated March 3, 2005. The
University did provide position descriptions showing no changes in job description for the

LA-CE-895-H
July 27, 2005
Page 3
MSW employees (as referenced in the previous page) on March 30. The charge does not
expressly address the status of requested items 2 through 4.
On June 13, Necochea was asked to attend a meeting by SDSU Human Resources to discuss
his employment status. The meeting involved Delgado, Eaddy and the Worker's
Compensation Manager for SDSU. Necochea wanted Young to attend the meeting, but Young
was told that union representation was not permitted because the meeting did not involve
grievance or discipline. Instead, the purpose of the meeting was to discuss Necochea's injured
worker status and reasonable accommodation. On the other hand, Young believed his presence
was warranted because the outcome of the meeting could affect Necochea's employment
status. During the meeting, Necochea was presented with a Level III grievance response
granting a number of demands set forth in the initial grievance". Necochea believed that the
meeting was an indication that he was being set up for medical retirement and wished he had
union representation to help him understand his choices.
The Union claims that CSU has violated Government Code 3571 (a)(b)(c) and (e) by
1) Retaliating against Necochea through written reprimand and "unsafe work assignments" for
his protected activities,
2) Denying union representation to Necochea in the April 21 and June 16, 2005 meetings with
management,
3) Unilaterally changing Necochea's work assignments before the conclusion of negotiations
on the impact of MSW contracting out.
Based on the above facts, the allegations fail to state a prima facie case for these violations for
the reasons stated below:
Retaliation
To demonstrate a violation of HEERA section 3571(a), the charging party must show that:
(1) the employee exercised rights under HEERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
On October 2004, the Union filed a grievance on behalf of Necochea based on
incorrect administration of his injured work status, dock in pay and failure to meet his health
and safety needs

LA-CE-895-H
July 27, 2005
Page 4
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. [Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
It is well established that involuntary transfer to positions with less favorable working
condition and the issuance of written reprimands constitute adverse actions. (see Fresno
County Office of Education (2004) PERB Decision 1674). Here, the Union alleges that
Necochea suffered these adverse actions because he had engaged in the protected activities of
1) serving as a Union bargaining team member in the MSW negotiation and 2) filing a
grievance against the University in 2004.
With respect to the three elements needed to establish a discrimination/retaliation claim under
HERRA, the first two elements appear to be present. Necochea was a member of the Union
bargaining team and the University has been actively meeting and conferring with the Union
bargaining team for the past two years. However, the Union failed to sufficiently allege and
provide support for the third "nexus" element.

LA-CE-895-H
July 27, 2005
Page 5
Even assuming that there was close temporal proximity between the protected activities and
the adverse actions, the Union did not allege or identify any other additional factors that would
support a nexus between the protected activities and the adverse actions.
With respect to Necochea's work assignment, there is no evidence of disparate treatment
because all three MSW employees were reassigned to other areas of the campus. Although it
could be argued that Necochea's new job duties in the parking structure did not match his
Administrative Analyst/ Specialist designation and/or his original job duties at MSW, the
Union did not allege that the University departed from its established procedure when making
Necochea's job assignments. In fact, there is evidence that the University's options were
limited because Necochea had a number of medical/health restrictions that would prevent him
from occupying certain positions. Even assuming Union's assertions that Necochea's work
area in the parking structure was "isolated and without normal facilities" and the assignment
was "make-work without value to the campus" as true, that alone does not create an inference
of nexus between Necochea's protected activities and work assignment.
As for the issuance of Necochea's written reprimand on April 21, the reprimand appeared to be
a direct response to the comments made by Necochea two days prior. One cannot readily
characterize University's justification as pretextual or contradictory without other evidence.
Again, there's no allegation that other employees received different treatment under similar
circumstances. The mere fact that an employee is or was participating in union activities does
not give him immunity from routine employment decisions or insulate him from disciplinary
action for misconduct. (See Los Angeles USD (Kaady) (1992) PERB Decision No. 957 citing
Martori Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d 721).
In sum, there is insufficient evidence to support the Union's allegation that the University
retaliated against Necochea for engaging in protected activities.
Denial of Representation (Weingarten Right)
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 Weingarten" 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 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-895-H
July 27, 2005
Page 6
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 requirement
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.
The Union alleges that the University violated Necochea's Weingarten rights when it denied
him proper union representation on the April 21 and June 16 meetings. Based on facts
proffered by the Union, neither meeting warranted mandatory union representation under the
Weingarten standard.
Beyond the discussion of work assignments, the April 21 meeting with Eaddy was not
investigatory in nature. Instead, Necochea was simply given a written reprimand prepared by
Eaddy. PERB has made it clear that if the purpose of the meeting is just to present a final
disciplinary memo, the employee has no right to union representation. (Regents of University
of California (Los Alamos National Laboratory) (2003) PERB Decision No. 1579).
The June 13 meeting also did not meet the Weingarten requirements. The main purpose of the
meeting was to discuss reasonable accommodation and other job-related issues, not
disciplinary. While there was concern that the meeting could affect Necochea's employment
status because of the re-evaluation of his medical status, there was no indication that Necochea
objectively believed (or had reason to believe) that the meeting could result in disciplinary
action against him. In fact, Necochea was given a Level III grievance response in which many
of his initial grievance requests were granted by the University. Without the discipline and
investigatory components, the right to union representation only exists under "highly unusual
circumstances". (Redwood Community College District, Id). Considering the factors set forth
in Redwood and other PERB decisions, the June 21 meeting was not a meeting marked with

LA-CE-895-H
July 27, 2005
Page 7
"highly unusual circumstances." The only allegation that could remotely be construed as
University's hostility toward Necochea was that "Eaddy looked at him strangely.'
In sum, Mr. Necochea was not entitled to union representation in either the April 21 or June 13
meeting. Hence, the University did not violate Mr. Necochea's Weingarten rights by expressly
or implicitly denying him union representation.
Unilateral Change
The Union alleges that the University committed a unilateral change violation when it
reassigned Necochea to the parking structure following the MSW contracting out. First,
section 3.2 of the CBA between the parties states that "when the employer deems it necessary
in order to carry out the mission and operations of the campus, the employer may contract out
work provided that the contracting out does not displace bargaining unit employees. Here, the
Union does not challenge the propriety of the University's decision to contract out MSW.
CBA section 3.3 further states that "the union may request to meet and confer on the impact of
contracting out work when such contracting out is to be on a long term basis." The meeting
and conferring process did take place and the Union does not allege that the University failed
to negotiate in good faith. Instead, the Union is accusing the University of assigning Necochea
to a new location before the completion of impact negotiation. Since the CBA is silent on the
University's ability to implement decisions related to the impact negotiation, the issue here
turns on whether the "reassignment" of Necochea was a negotiable decision (i.e. one that is
within the scope of representation) or a managerial prerogative.
HEERA provides that the scope of representation for non-supervisory employees "is limited to
wages, hours, and other terms and conditions of employment" (See Gov. Code Section 3562
(q), (r)). PERB has generally recognized that direction of work force and determination of
what work is to be performed by employees is a managerial prerogative, at the core of
managerial control, and not subject to bargaining. (Davis Joint Unified School District (1984)
PERB Decision No. 393). Of course, managerial control is not unlimited. The employer's
discretion applies only to those tasks that are reasonably understood to be among the duties of
the classification as established in the job description. (Id.). Here, the University did not
change Necochea's job classification in contravention of the CBA. Moreover, the Union has
not shown that Necochea's new duties were not "reasonably comprehended to be within the
scope" of his job description and/or his Administrative Analyst/Specialist classification.
In sum, because the University is not obligated to negotiate over work assignments that are
reasonably comprehended within the scope of existing duties (Rio Hondo Community College
District (1982) PERB Decision No. 279), there is no prima facie case for a unilateral change
violation.
For these reasons the charges discussed above, 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

LA-CE-895-H
July 27, 2005
Page 8
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 August 5, 2005 I shall dismiss
the above-described allegation from your charge. If you have any questions, please call me at
the telephone number listed above.
Sincerely,
Dennis K. Lee
Board Agent
DKL