Trustees of the California State University (PERB 1642H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-667-H
PERB Decision No. 1642-H
June 15, 2004
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
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Academic Professionals of California (APC) from 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)1 by unilaterally implementing Employee Assistance Programs (EAP)
at Sonoma State University (SSU) and CSU Long Beach (CSULB).
The Board has reviewed the entire record in this case, including the original and
amended charge, APC's appeal and CSU's response to the 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, subject to the discussion below.
1 HEERA is codified at Government Code section 3560, et seq. Unless otherwise noted,
all statutory references herein are to the Government Code.

DISCUSSION
The original and amended charges filed by APC do not state a prima facie case as the
EAP at both campuses are voluntary, confidential and offered at no cost to the participants.
There also is no penalty for participation or not participating. As there is no direct impact on
wages and hours, is voluntary and not held during school hours, it is outside the scope of
representation.
Under HEERA sections 3562(q) and (r) and 3562.2 the scope of representation is
generally limited to wages, hours and other terms and conditions of employment. PERB has
not created a specific test to determine whether matters not specifically described in these
statutory provisions are within the scope of representation under HEERA. However, PERB
indicated a matter is outside the scope of bargaining if "imposing a bargaining obligation
would significantly abridge the employer's managerial prerogatives." (University of California
(1987) PERB Decision No. 640-H.)
In Anaheim Union High School District (1981) PERB Decision No. 177 (Anaheim),
PERB reviewed similar language in section 3543.2 of the Educational Employment Relations
Act (EERA)2 and set forth the following test for determining whether a subject is within the
scope ofrepresentation. 	A non-enumerated subject is negotiable if: 	(1) it is logically and
reasonably related to wages, hours, or an enumerated term and condition of employment; (2)
the subject is of such concern to management and employees that conflict is likely to occur,
and the mediatory influence of collective negotiations is the appropriate means of resolving the
conflict; and (3) the employer's obligation to negotiate would not significantly abridge its
freedom to exercise those managerial prerogatives essential to the achievement of the district's
m1ss10n.
2EERA is codified at Government Code section 3540, et seq.
2

The regional attorney dismissed the charges based on San Diego Unified School
District (1982) PERB Decision No. 234 (San Diego). He found that to be directly on point and
we agree. In San Diego, the Board followed the Anaheim test, set forth supra, and found the
EAP to be outside the scope of representation.
In the amended charge, APC raised a concern about confidentiality. In San Diego, the
Board found the impacts of the EAP program on the confidentiality of program participants in
existing health and welfare benefits to be items within the scope of representation. 	This fact
does not, however, affect our conclusion in this case that there was no unilateral change.
Article 24 of the CSU-APC collective bargaining agreement includes provision of an
EAP program and SSU was free to implement it because of the contractual agreement.
The allegations as to CSULB are untimely.
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The statute oflimitations is an affirmative defense
which has been raised by the respondent in this case. (Long Beach Community College
District (2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge is timely filed. 	(Cf, Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.)
Although APC alleges that what it believes is unilateral action was discovered in
February 2002, the regional attorney documented APC's knowledge of the EAP program
(changed to the Faculty and Staff Assistance Program in 1998) predated the information
3

received in 2002. The regional attorney investigation discovered that APC had knowledge
of
the program in
1996,
the program had existed for over twenty years and was known to APC at
the time the
20_00-2003
collective bargaining agreement was negotiated which included
Article 24 providing for the university to offer the EAP program. 	The filing
of
the amended
charge to include CSULB occurred in May 2002, more than six months after APC knew or
should have known about the program.
After thoroughly reviewing the original and amended charge and the entire record, the
Board agrees with the regional attorney that APC has failed to state a prima facie case and the
charges must be dismissed.
ORDER
The unfair practice charge in Case No. LA-CE-667-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
4

f:\	f:\ ;';;'; rE	rE OF	OF CALIFORNIA	CALIFORNIA GRAY DAVIS, Governor
PUBLIC EMPJbOYMEN'l RELATIONS BOARD
Regional Office
Blvd, Suite 1435
Los Angeles, •ZA 90010-2334
Telephone: (2 l'3) 736-3543
Fax (213) 736-4901
October 30, 2003
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�667-H
DISMISSAL LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 7, 2002. The Academic Professionals of California (APC
Unit 4)) alleges that the Trustees of the California State University violated section 357l(a) ,
(b) and (c) of the Higher Education Employer-Employee Relations Act (HEERA)1 by making a
unilateral change by implementing an Employee Assistance Program (EAP) at Sonoma State
University (SSU). On May 2, 2002, an Amendment was filed alleging the unilateral
implementation of a "Faculty and Staff Assistance Program" (FSAP) at Cal State University,
Long Beach (CSULB).
I indicated to you in my attached letter dated October 1, 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 8, 2003, the charge would be dismissed.
On October 7, 2003, I received APC's Amended Charge which discusses SSU and CSULB.
Sonoma State University - The Amended Charge reiterates the allegations in the initial charge
filed March 7, 2002. It points out that prior to July 1997, the University contracted the EAP
program to Mr. Al Weirs, an off-campus provider. Due to budgetary constraints beginning in
July 1997, the EAP was provided until June 30, 2001 in-house by the campus based
"Counseling and Psychological Services." On July 1, 2001, SSU once again contracted the
EAP program to Mr. Weirs, the off-campus provider. The original unfair practice charge
asserts that in October 2001, APC received notice that on July 1, 2001, SSU unilaterally
implemented an EAP program.
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-667-H
October 30, 2003
Page 2
The main points raised in the October 2003 Amended Charge are that the EAP is not
voluntary, that if a Supervisor recommends treatment for an employee, the employee has no
right to keep confidential information regarding the use or non-use of the EAP services, that
the SSU may release confidential documents without obtaining the employee's consent, that
after the free visits have been exhausted, the employee bears the costs for more visits, and that
employees working less that half time may not participate in the EAP.
The above-stated information fails to state a prima facie violation for the reasons that follow.
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.)
Under the HEERA sections 3562(q) and (r) and 3562.2 the scope of representation is generally
limited to wages, hours and other terms and conditions of employment. PERB has not created
a specific test to determine whether matters not specifically described in these statutory
provisions are within the scope of representation under HEERA. However, PERB indicated a
matter is outside the scope of bargaining if "imposing a bargaining obligation would
significantly abridge the employer's managerial prerogatives." (University of California
(1987) PERB Decision No. 640-H.)
In Anaheim Union High School District (1981) PERB Decision No. 177, PERB reviewed
similar language in section 3543.2 of the Educational Employment Relations Act and set forth
the following test for determining whether a subject is within the scope
of
representation. A
non-enumerated subject is negotiable if: 	(1) it is logically and reasonably related to wages,
hours, or an enumerated term and condition of employment; (2) the subject is of such concern
to management and employees that conflict is likely to occur, and the mediatory influence of
collective negotiations is the appropriate means of resolving the conflict; and (3) the
employer's obligation to negotiate would not significantly abridge its freedom to exercise those
managerial prerogatives essential to the achievement of the district's mission.
After a review of the entire EAP program, I still conclude that the program is fully voluntary,
confidential and that participating in the program is at no cost to the participants.
	If
a
participant chooses to have visits beyond those covered by the program, this is voluntary and
may be covered by the employee's own health insurance or the employee may wish to pay.
There is no penalty for not participating.

LA-CE-667-H
October 30, 2003
Page 3
As noted in my October
1,
2003 letter, in San Diego Unified School District (1982) PERB
Decision No 234, the Board considered the Anaheim test and held that instituting this type
of
EAP and making the program available to employees is not within the scope
of
bargaining.
Also see Poway unified School District (1988) PERB Decision No. 680 [in service training not
negotiable per Anaheim as no direct impact on wages and hours since it was voluntary and not
held during duty hours.].
As I pointed out in my letter dated October
1,
2003, even
if
the EAP is within the scope
of
representation,
SSU's
conduct does not constitute a change in policy. The CSU-APC
collective bargaining agreement at Article 24, Benefits, section 24.12, Employee Assistance
Program - Referral Service provides,
The CSU shall attempt to assist employees' voluntary efforts to
correct
job
performance problems by endeavoring to provide a
referral service to employees concerning drug, alcohol, or
personal problems. 	An employee undergoing alcohol, drug, or
mental health treatment, upon approval, may use accrued sick
leave, CTO and/or vacation for such a purpose. Leaves of
absence without pay may be granted pursuant to Article 22.
This demonstrates that the policy through the collective bargaining agreement was to have an
EAP program. As the EAP is contractually favored, I conclude that it has not been established
that there has been a change in policy. Also, since the parties agreed contractually that there
would be an EAP program, SSU had the power to implement such a program. 	(See Marysville
Joint Unified School District (1983) PERB Decision No. 314.) In addition, the alleged change
in July 2001 in contracting out the EAP to Mr. Weirs was a return to the EAP model in effect
prior to July 1997.
Therefore, I am dismissing the charge and October Amended Charge based on the facts and
reasons contained above and in my October 1, 2003 letter.
California State University, Long Beach - Regarding CSULB, the October 2003 Amended
Charge raises allegations quite similar to those made in the original charge. 	You contend the
FSAP commenced operation in June 1999. Citing a February 19, 2002 CSULB letter,
responding to your request for information, CSU indicated, "Before the FSAP program was
initiated, we had a very small program staffed half-time by an SSP II/A who mainly provided
services to students." From this you conclude that the FSAP is a new program and not a
continuation of the preexisting EAP. 	You contend that the recommendation by a supervisor
that an employee seek treatment alters the program since the employee "may feel coerced into
seeking treatment from the FSAP." You also assert that when an employee's supervisor
recommends that the employee seek counseling through the FSAP, after the program's free
visits have been exhausted, if the supervisor instructs the employee to attend, the employee is
responsible for the cost of the additional sessions.

LA-CE-667-H
October 30, 2003
Page 4
CSULB' s EAP program has existed for at least twenty years without any substantive changes.
In the mid-1990' s APC was aware
of
the EAP program and participated in discussions
concerning the expansion
of
the EAP program. In October 1996, Denise Davis, the Unit 4,
APC Representative and all Staff Union Representatives were informed that CSULB was
considering expanding the EAP. The union representatives participated in the discussions.
During September 1998 CSULB released the new name
of
the EAP, the FSAP. The program
received a permanent allocation
of
$75,000 for short term counseling referral, mediation and
consultation services for employees. The expanded FSAP commenced in or about June 1999.
In a letter to you dated April 10, 2002, CSULB responded to your March 3, 2002 request for
information. You were provided the FSAP Statement
of
Understanding, the client information
form, the FSAP brochure, the FSAP Mission Statement, the FSAP Policies and Procedures
Manual, the 1998-99 Resource Planning Process Proposal for the FSAP, the 1998-99 General
Fund Support Budget, and the costs associated with the program. You were advised that the
present FSAP coordinator/counselor (SSP III), Toni Aquino was hired in June 1999 and that
the prior coordinator, SSP II Judith Phillips was half-time and was hired in 1987. You were
also advised that "Union representatives were notified of the recruitment for the [FSAP]
coordinator/counselor, of the hiring of Toni Aquino, and the availability
of
the FSAP program.
No requests to meet and discuss the program were received from any of the unions."
My investigation has revealed that the original EAP and subsequent FSAP have always been
available to all CSULB employees. APC was advised in the 1990' s
of CSU' s intent to expand
the program and to hire a full-time person to staff it. APC received documents from CSU in
2002 regarding the FSAP program at CSULB. Based on the above information, APC had
knowledge of the EAP as early as 1996 and was also aware of Article 24, section 24.12
The above information fails to state a prima facie case for the following reasons.
As noted in my October 1, 2003 letter, HEERA section 3563.2(a) prohibits PERB from issuing
a complaint regarding "any charge based upon an alleged unfair practice occurring more that
six months prior to the filing of the charge." The EAP has been in existence at CSULB for
more than twenty years with no real substantive changes other than being expanded in the late
1990's. APC's union representative had knowledge of the EAP as early as 19962 and APC
knew of the policy of having an EAP pursuant to Article 24 of the parties' 2000-2003
collective bargaining agreement. Since the First Amended Charge concerning this alleged
unilateral change at CSULB was not filed until May 2002, this allegation is untimely and will
be dismissed.
Assuming the alleged unilateral is timely, based on San Diego Unified School District and
Poway Unified School District, supra, instituting the EAP is not a matter within scope. 	I find
2It was not until January 2001 when APC notified CSULB in writing that notice to APC
regarding proposed changes in Unit 4 terms and conditions of employment need to be made by
CSU in writing to the APC statewide office.

LA-CE-667-H
October 30, 2003
Page 5
that the EAP/FSAP program benefits are voluntary and that participating in programs is at no
cost to the employee. Even if recommended by the supervisor, the FSAP is still voluntary; and
if
the number
of
free visits is exceeded, the employee's health benefits may cover the cost, or
the employee has the choice of paying or not going. Also the privacy
of
the participants is
guaranteed and there is no penalty for not participating.
	In
addition, a prima facie unilateral
change has not been alleged since Article 24
of
the parties agreement authorized CSULB to
implement the EAP program. (See Marysville Joint Unified School District (1983) PERB
Decision No. 314.)
Therefore, I am dismissing the charge and October 2003 Amended Charge based on the facts
and reasons contained above and in my October
1,
2003 letter.
Right to Appeal
Pursuant to PERB Regulations,3 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 or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than 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
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-667-H
October 30, 2003
Page 6
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
ofeach 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
1//)fc	
71~:f	
By
Marc S. Hurwitz
Regional Attorney
___________
_.(..
	__
_
)
·--
Attachment
cc: Gale Baker and Kevin Jeter, Attorneys for CSU

ST A
TE
OF CALIFORNIA	
GRAY
	Governor
PUBi,IC 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
October
1,
2003
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-667-H
WARNING LETTER
Dear Mr Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 7, 2002. The Academic Professionals of California (APC
Unit 4)) alleges that the Trustees of the California State University violated section
3571(a),
(b) and (c)
of
the Higher Education Employer-Employee Relations Act (HEERA) 1 by making a
unilateral change by implementing an Employee Assistance Program (EAP) at Sonoma State
University (SSU). On May 2, 2002, an Amendment was filed alleging the unilateral
implementation of a "Faculty and Staff Assistance Program" (FSAP) at Cal State University,
Long Beach (CSULB).
APC and CSU are parties to a collective bargaining agreement effective July
1,
2000 through
June 30, 2003.
Sonoma State University
-In
October 2001, APC received notice that on July
1,
2001, SSU
unilaterally implemented an EAP program which may subject employees to disciplinary action
and where the University controls the release of information regarding EAP usage. It is
alleged that after the free visits are used, the costs are the responsibility of the employee, that
employees working less than half time may not participate in the EAP, and that CSU may
unilaterally terminate the program.
On January 22, 2002, APC demanded that SSU rescind the EAP as to Unit 4-APC unit
members at that University and return to the "status quo ante." On February 13, 2002, SSU
responded that prior to July 1997, the SSU EAP was contracted to Mr. Al Weirs, an off-
campus provider, but this contract ended due to budgetary constraints. SSU claimed that its
action effective July 1, 2001 of contracting the EAP program to Mr. Weirs, was a return to the
EAP practice prior to July 1997.
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-667-H
October
1,
2003
Page 2
The above-stated information fails to state a prima facie violation for the reasons that follow.
In
determining whether a party has violated HEERA section 357l(c), PERE 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)
PERE 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) PERE Decision No. 160; Grant
Joint Union High School District (1982) PERE Decision No. 196.)
Under the HEERA sections 3562(r) and 3562.2, the scope
of
representation is generally limited
to wages, hours and other terms and conditions
of
employment. PERE has not created a
specific test to determine whether matters not specifically described in these statutory
provisions are within the scope of representation under HEERA. However, PERB indicated a
matter is outside the scope
of
bargaining if "imposing a bargaining obligation would
significantly abridge the employer's managerial prerogatives." (University of California
(1987) PERE Decision No. 640-H.)
In Anaheim Union High School District (1981) PERE Decision No. 177, PERB reviewed
similar language in section 3543.2 of the Educational Employment Relations Act and set forth
the following test for determining whether a subject is within the scope
of
representation. A
non-enumerated subject is negotiable if: 	(1) it is logically and reasonably related to wages,
hours, or an enumerated term and condition
of
employment; (2) the subject is of such concern
to management and employees that conflict is likely to occur, and the mediatory influence
ofcollective negotiations is the appropriate means of resolving the conflict; and (3) the
employer's obligation to negotiate would not significantly abridge its freedom to exercise those
managerial prerogatives essential to the achievement of the district's mission.
My review
of
the EAP reveals that it is voluntary, confidential, and participating is at no cost
to the participants. There is no penalty for not participating. In a similar case right on point,
San Diego Unified School District (1982) PERE Decision No. 234, the Board used the
Anaheim test and held that instituting this type of EAP and making the program available to
employees is not within the scope of bargaining. Also see Poway Unified School District
(1988) PERE Decision No. 680 where the Board held that in-service training was not
negotiable within the meaning of Anaheim as there was no direct impact on wages and hours
since it was purely voluntary and was not held during duty hours.
You have cited City of Stockton (1988) 13 PERC 20021 to establish that employee assistance
plans are within scope. I disagree. 	In that MMBA case, the City agreed that the program was
within scope and thus, this was not an issue decided by the court. The City gave the union
advance notice of the proposed action and the union failed to make a request to bargain. Thus,
no violation was found. This case is not on point as to the negotiability of EAP programs.

LA-CE-667-H
October
1,
2003
Page 3
Even
if
the EAP is within the scope
of
representation,
CSU's
conduct does not constitute a
change in policy. CSU-APC' s collective bargaining agreement at Article 24, Benefits, section
24.12, Employee Assistance Program - Referral Service provides,
The CSU shall attempt to assist employees' voluntary efforts to
correct
job
performance problems by endeavoring to provide a
referral service to employees concerning drug, alcohol, or
personal problems. An employee undergoing alcohol, drug, or
mental health treatment, upon approval, may use accrued sick
leave, CTO and/or vacation for such a purpose. Leaves
of
absence without pay may be granted pursuant to Article 22.
The parties' policy through the collective bargaining agreement was to have an EAP program.
Since the EAP is contractually favored, I find that it has not been established that there has
been a change in policy. 	In addition, as the parties agreed contractually that there would be an
EAP program, SSU had the power to implement such a program. (See Marysville Joint
Unified School District (1983) PERB Decision No. 314.) Also, as no information has been
provided as to the workings and elements of the prior EAP at SSU, it cannot be determined that
a change in policy has occurred.
Cal State University, Long Beach - In the Amendment concerning Cal State University, Long
Beach (CSULB), it is alleged that in February 2002, APC became aware that the University
unilaterally instituted the FSAP for APC bargaining unit members. The program was to help
in "expanding the employee assistance effort" giving psychological counseling for alcohol and
drug abuse, and work and stress related matters. You assert that employees may be subject to
discipline, however, you do not provide any details to support this allegation. 	You also assert
that the University has denied APC the right to bargain over standards
of
confidentiality.
Finally, the Amendment indicates that employees must pay the cost
if
they go beyond five free
visits and CSU may terminate the program at any time without bargaining. On April 26, 2002,
APC demanded that CSULB rescind the program as to members of APC' s Unit 4. On May 10,
2002, CSULB responded, in part, that the EAP program has been in existence for more than
ten years, that the University has increased publicity about the availability of the program, but
that neither the program nor the method of providing the program had changed.
My investigation has revealed that CSULB' s EAP program has been in existence for at least
twenty years without any substantive changes. In the mid-1990's there were discussions
concerning the expansion of the EAP program. APC was aware of the EAP program and
participated in these discussions. In October 1996, all Staff Union Representatives including
Denise Davis, the Unit 4, APC Representative, were advised that CSULB was contemplating
expanding the existing EAP and the union representatives participated in the discussions. In
September 1998, CSULB announced the program's new name, the FSAP with a permanent
allocation of $75,000 for short-term counseling, referral, mediation and consultation services
for employees. The expanded FSAP program began in or about June 1999.

LA-CE-667-H
October
1,
2003
Page 4
Although APC received documents from CSU in early 2002 concerning the FSAP program at
CSULB, it appears from the above information that APC was aware
of
this EAP as early as
1996 and was also aware
of
Article 24, section 24.12.
The above information fails to state a prima facie case for the following reasons.
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows,
or
should
have known,
of
the conduct underlying the charge. 	(Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
The EAP program has been active at CSULB for over twenty years with no real substantive
changes. 	APC has been the exclusive bargaining representative for Unit 4 since 1982. The
union representative for APC had knowledge of the EAP in 19962 and APC was aware
of
the
policy of having an EAP pursuant to Article 24 of the parties' 2000-2003 collective bargaining
agreement. 	As the Amendment concerning the alleged unilateral change at CSULB was not
filed until May 2002, it is untimely and will be dismissed.
Even assuming the alleged unilateral is timely, as noted in San Diego Unified School District
and Poway Unified School District, supra, instituting the EAP is not a matter within scope. A
review of the EAP/FSAP programs reveals that the benefits are voluntary, participating in the
programs does not entail any cost, and the privacy of the participants is guaranteed. There is
no penalty for not participating. 	Another reason a prima facie unilateral change has not been
alleged is because Article 24 of the parties' contract authorized CSULB to implement the EAP
program. 	(See Marysville Joint Unified School District (1983) PERB Decision No. 314.)
For these 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 Second 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
representatives3 and the original proof of service must be filed with PERB.	
If
I do not receive
2It was not until January 2001 when APC advised CSULB in writing that notice to APC
concerning proposed changes in Unit 4 terms and conditions of employment need to be made
by CSU in writing to the APC statewide office.
3CSU' s legal representatives in this case are William G. Knight, University Counsel
and Gale S. Baker, University Counsel.

LA-CE-667-H
October
l,
2003
Page 5
an amended charge or withdrawal from you before October
8,
2003, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
\	
l«··
..
-.~i·.·
l	C.
~--/'	
1
//
~,
----.,..__
___
Marc S. Hurwitz
Regional Attorney
MSH