Trustees of the California State University (San Marcos) (PERB 2549H)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1206-H
PERB Decision No. 2549-H
February 16, 2018
Appearance: John A. Swarbrick and J. Kevin Downes, Labor Relations Representatives, for
Trustees of the California State University (San Marcos).
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Trustees of the California State University
(San Marcos) (University) to the proposed decision of a PERB administrative law judge (ALJ).
The complaint alleged that the University violated the Higher Education Employer-Employee
Relations Act (HEERA)1 section 3571, subdivision (a), when it took adverse action against
bargaining unit member Rafael Lopez (Lopez) by investigating an allegation that he had
demanded money from bargaining unit members in retaliation for his engagement in protected
activity.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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The Office of the General Counsel issued the complaint on May 27, 2014. The
University answered the complaint on June 20, 2014, denying the substantive allegation and
asserting affirmative defenses. The parties participated in a settlement conference on
August 22, 2014, but were unable to resolve their dispute. A formal hearing was held on
December 8, 2014, and following the filing of simultaneous post-hearing briefs, the case was
submitted for decision on February 9, 2015.
On February 19, 2015, the ALJ issued a proposed decision, dismissing the retaliation
allegation, but finding an unalleged violation that the University had interfered with the
protected rights of bargaining unit employees in violation of HEERA section 3571,
subdivision (a), when it issued a directive prohibiting employees from remaining at the
worksite after hours. On March 11, 2015, the University filed its exceptions and supporting
brief, arguing that the ALJ had erred in considering the unalleged interference violation. The
California State University Employees Union (Union) did not file a response. As neither the
University nor the Union have excepted to the ALJ’s findings and conclusions of law regarding
the retaliation allegation, that allegation is not before us. (PERB Reg. 32300, subd. (c).)2 The
only issue before the Board is whether the ALJ erred in considering the unalleged interference
violation.
The Board has reviewed the entire record in this case including the unfair practice
charge and the University’s position statement, the complaint and answer, the hearing record,
the parties’post hearing briefs, the proposed decision, and the University’s exceptions. Based
on this review, we reverse the ALJ’s conclusion regarding the unalleged interference
allegation, for the reasons that follow.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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DISCUSSION
The University’s sole exception on appeal is that the ALJ erred in his application of
PERB’s criteria for finding an unalleged violation and that the interference violation should not
have been considered. We agree.
The Board may only consider an unalleged violation when: “(1) adequate notice and
opportunity to defend has been provided the respondent; (2) the acts are intimately related to
the subject matter of the complaint and are part of the same course of conduct; (3) the
unalleged violation has been fully litigated; and (4) the parties have had the opportunity to
examine and be cross-examined on this issue.” (Fresno County Superior Court (2008) PERB
Decision No. 1942-C; City of Roseville (2016) PERB Decision No. 2505-M, p. 25.) Each part
of this test must be satisfied. In addition, the alleged violation must have occurred within the
applicable statute of limitations period. (Ibid.) These criteria were not met in this case.
1. 	The University had insufficient notice that the unalleged violation was being litigated and
had no opportunity to defend against it.
The Union’s original unfair practice charge included the allegation that the University
interfered with Lopez’s right to union representation when it provided him the directive that he
was prohibited from remaining at the worksite after hours, during which time he typically met
with Union Representative Jim Carr.3 The University responded to this allegation in its
position statement. The Office of the General Counsel, however, did not include this
allegation, or any related facts, in the complaint.
3 The original unfair practice charge contained multiple other allegations, all of which
were subsequently withdrawn by the Union and are not presently at issue.
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After the complaint issued, there was no motion to amend the complaint to include the
additional interference allegation or the facts related to the allegation. During opening
arguments, the Union’s representative exclusively discussed the allegations that the University
had retaliated against Lopez and made no reference to a separate interference violation. Nor
did he discuss the University’s directive that employees refrain from remaining on the
premises after work. As a result, we find that the University had insufficient notice that a
separate interference violation was at issue.
2. 	The conduct was not intimately related to the subject matter of the complaint.
The complaint concerned the University’s retaliatory actions against Lopez related to its
investigation into his alleged demands for money. The ALJ found that the University’s directive
closely related to the subject matter of the complaint because the complaint generally concerned
the University’s alleged retaliation and interference against Lopez for his protected activity.
We disagree. We have found allegations of retaliation and interference to be intimately related
when they are alternate legal theories “to be applied to the exact same conduct.” (Los Angeles
County Superior Court (2008) PERB Decision No. 1979-C, p. 12; County of Santa Clara (2017)
PERB Decision No. 2539-M.) Here, however, the retaliation and interference allegations arose
from entirely different conduct. The decision to conduct the investigation was made by
Lisa McClean (McClean), the University’s Senior Manager of Labor and Employee Relations,
while the directive to Lopez was issued by University Director of Facilities Services Floyd
Dudley (Dudley). McClean’s investigation concluded several weeks before Dudley’s directive,
with no finding of misconduct by Lopez. There is no evidence that the two actions were related
to each other. As a result, we find that the conduct comprising the University’s directive is not
intimately related to the subject matter of the complaint.
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3. 	The interference allegation was not fully litigated.
After the complaint issued, the interference allegation was only clearly raised for the
first time in the Union’s post-hearing brief. The University did not address the allegation at all
in its post-hearing brief. These briefs, however, were simultaneously filed and there was no
provision for filing reply briefs. Because the University did not have the opportunity to brief
the issue, we conclude that the interference allegation was not fully litigated.
4. 	The University had an opportunity to examine and cross examine on the issue of
interference.
The Union introduced evidence of the University’s directive through testimony from
both Lopez and Dudley. Although the University’s representative asked no questions related
to the directive, either on direct or cross examination, the University had the opportunity to
examine witnesses in response to the evidence presented by the Union. Thus, only one prong
of the unalleged violation test has been met. All must be met.
Accordingly, we do not consider whether the University’s directive prohibiting
employees from remaining at the worksite after hours constituted unlawful interference in
violation of HEERA. We therefore reverse that portion of the proposed decision finding that
the University interfered with the protected rights of bargaining unit employees in violation of
HEERA section 3571, subdivision (a), when it issued a directive prohibiting employees from
remaining at the worksite after hours.
ORDER
The complaint and the underlying unfair practice charge in Case No. LA-CE-1206-H
are hereby DISMISSED.
Members Banks and Winslow joined in this Decision.
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