PERB Decision No. 1507H

Texto completo

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Res ondent.
Case No. LA-CE-584-H
PERB Decision No. 1507-H
January 8, 2003
Appearances: Rothner, Segall & Greenstone by Glenn Rothner and Ricardo Ochoa, Attorneys,
for Academic Professionals of California; Janette Redd Williams, University Counsel, for
Trustees of the California State University.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions from the Academic Professionals of California (APC) and
Trustees of California State University (CSU) of an administrative law judge's (ALJ) p roposed
decision (attached). The charge alleged that CSU violated the Higher Education Employer
Employee Relations Act (HEERA)1 by unilaterally implementing computer usage policies at
both its Fresno and Bakersfield campuses and a telephone/facsimile usage policy at its Fresno
campus. The ALJ found that the computer usage policies constituted a violation of section
357l(a) and (c) but dismissed the charges regarding the telephone and facsimile machine usage
policy.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Upon review of the entire record in this matter, including the proposed decision, and
the exceptions and responses to exceptions filed by both parties, the Board adopts the ALJ' s
factual and legal findings with respect to CSU's implementation of the computer usage
policies, in line with the discussion below, but reverses the ALJ's finding that the
telephone/facsimile policy did not violate HEERA.
DISCUSSION
The complaint in this matter involves allegations of unilateral change in violation of
HEERA section 3571(c). To prevail on a complaint of unilateral change, the charging party
must establish by a preponderance of the evidence that: 	(1) the employer implemented a
change in policy; (2) the action was taken without giving the exclusive representative notice or
an opportunity to bargain over the change; (3) the action is not mereiy an isoiated incident, but
amounts to a change of policy (i.e., having a generalized effect or continuing impact upon
bargaining unit members' terms and conditions of employment); and ( 4) the change in policy
concerns a matter within the scope of representation. (Walnut Valley Unified School District
(1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
1. CSU Computer Usage Policies
The threshold question here is whether the subject matter contained in the CSU Fresno
and Bakersfield policies falls within the scope ofrepresentation under HEERA.2 Whether
2HEERA section 3562 defines the scope ofrepresentation in the CSU system as
follows:
(r)(l) For purposes of the California State University only,
'scope ofrepresentation' means, and is limited to, wages, hours
of employment, and other terms and conditions of employment.
The scope· of representation shall not include:
2

enumerated items such as wages and hours are within the scope of representation is self-
evident. In determining if non-enumerated matters fall within the scope ofrepresentation as a
"term or condition of employment," PERB applies a three-part test. A subject is within the
scope of representation if: (1) it involves the employment relationship; (2) is of such concern
to both management and employees that conflict is likely to occur and the mediatory influence
of collective bargaining is an appropriate means of resolving the conflict; and (3) the
employer's obligation to negotiate would not unduly abridge its freedom to exercise those
managerial prerogatives (including matters of fundamental policy) essential to the achievement
of the employer's mission. (Trustees of the California State University (2001) PERB Decision
No. 1451-H, adopting proposed decision of ALJ at pp. 8-9.) This test is similar to that first
adopted in Anaheim Union High School District (1981) PERB Decision No. 177 and is
commonly referred to as the Anaheim test.
The Board agrees with the portions of the ALJ's analysis pertaining to the CSU
computer usage policies. These policies clearly establish new grounds for discipline against
employees who violate their provisions. PERB has previously determined that "rules of
conduct which subject employees to disciplinary action are subject to negotiation both as to
(A) Consideration of the merits, necessity, or organization of any
service, activity, or program established by statute or regulations
adopted by the trustees, except for the terms and conditions of
employment of employees who may be affected thereby.
(2) All matters not within the scope ofrepresentation are
reserved to the employer and may not be subject to meeting and
conferring, provided that nothing herein may be construed to
limit the right of the employer to consult with any employees or
employee organization on any matter outside the scope of
representation.
3

criteria for discipline and as to procedure to be followed." (San Bernardino City Unified
School District (1982) PERB Decision No. 255.) In State
of
California (Water Resources
Control Board) (1999) PERB Decision No. 1337-S (Water Resources Control Board), PERB
held that an internet/intranet usage policy was within the scope
of
representation.
These policies also affect matters within the scope
of
representation as they pertain to
APC's use
of
CSU e-mail to communicate with employees. CSU excepts to the ALJ's ruling
that this matter is within the scope
of
representation on the basis that regulation
of
employer-
owned equipment is a management right, citing both various National Labor Relations Board
(NLRB) cases and Government Code sections 8314 and 3568. The NLRB cases are
not
applicable because there is no statutory right
of
access in the National Labor Relations Act
comparable to HEERA section 3568.3 It is equally clear that computer resources, telephones
and fax machines comprise "reasonable" means
of
access in a large academic institution.
PERB has long held that reasonable access rights are negotiable. (State
of
California
(Departments
of
Personnel Administration, Banking, Transportation, Water Resources and
Board
of
Equalization) (1998) PERB Decision No. 1279-S; California State University,
Sacramento (1982) PERB Decision No. 211-H; Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375.) Such means include the use
of
computers, telephones and fax machines. (Water
3HEERA section 3568 states:
Subject to reasonable regulations, employee organizations shall
have the right of access at reasonable times to areas in which
employees work, the right to use institutional bulletin boards,
mailboxes and other means of communication, and the right to
use institutional facilities at reasonable times for the purpose of
meetings concerned with the exercise of the rights guaranteed by
this act.
4

Resources Control Board.) Furthermore, Government Code section 8314 does not prohibit
personal use
of
such equipment; rather, it states that use
of
state resources for personal
purposes is unlawful, but excludes occasional, incidental
or
minimal use
of
state resources for
personal purposes from its prohibition.4
4Government Code
section
8314 states, in pertinent part:
(a) It shall
be
unlawful for any elected state officer, appointee,
employee, or consultant, to use or permit others to use state
resources for a campaign activity, or personal or other purposes
which are not authorized
by
law.
(b) For purposes
of
this section:
(1) 'Personal purpose' means those activities the purpose
of
which is for personal enjoyment, private gain or advantage, or an
outside endeavor not related to state business. 	"Personal
purpose" does not include an occasional telenhone call.
or
an
incidental and minimal use
of
state resources, such as equipment
or office space, for personal purposes.
(3) 'State resources' means any state property
or
asset, including,
but not limited to, state land, buildings, facilities, funds,
equipment, supplies, telephones, computers, vehicles, travel, and
state compensated time.
(4) 'Use'means a use
of
state resources which is substantial
enough to result in a gain or advantage to the user or a loss to the
state for which a monetary value may be estimated.
(c )(1) Any person who intentionally or negligently violates this
section shall be liable for a civil penalty not to exceed one
thousand dollars ($1,000) for each day on which a violation
occurs, plus three times the value
of
the unlawful use
of
state
resources. The penalty shall be assessed and recovered in a civil
action brought in the name
of
the people
of
the State
of
California
by the Attorney General or by any district attorney or any city
attorney
of
a city having a population in excess
of
750,000.
	If
two or more persons are responsible for any violation, they shall
be jointly and severally liable for the penalty.
5

CSU next asserts that there was no change in the status quo. According to CSU, the
parties negotiated access policies and the resulting provisions in the memorandum
of
understanding (MOU) did not include union e-mail access rights. CSU concludes that these
policies fall within the MOU access provisions and thus the policies do not change the status
quo. CSU incorrectly relies upon State
of
California (Departments
of
Personnel
Administration, Banking, Transportation, Water Resources and Board
of
Equalization) (1998)
PERB Decision No. 1279-S (DPA). In DPA, the employer was ignorant
of
employee use
of
e-mail for union business and no MOU provision existed that addressed the issue. In this case,
CSU acknowledges APC's use
of
e-mail to communicate with employees. A policy restricting
that practice clearly changes the status quo. There is also no evidence in the record that either
party proposed computer usage restrictions during the negotiations over access rights; and so
for this reason as well, the argument fails. Furthermore, this issue was not raised during the
hearing and therefore, CSU has waived its right to argue the consistency
of
these provisions in
its exceptions. (PERB Reg. 32300(b
). 5)
(2)
If
the action is brought by the Attorney General, the moneys
recovered shall be paid into the General Fund.
If
the action is
brought by a district attorney, the moneys recovered shall be paid
to the treasurer
of
the county in which the judgment was entered.
If
the action is brought by a city attorney, the moneys recovered
shall be paid to the treasurer
of
that city.
(3) No civil action alleging a violation
of
this section shall be
commenced more than four years after the date the alleged
violation occurred. [Emphasis added.]
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
6

Second, CSU argues that APC failed to demonstrate otherwise that the computer usage
policies comprise a change in the status quo by claiming that they were mere compilations
of
existing rules. On the contrary, these policies embody comprehensive rules on the use
of
computer resources, violation
of
which is grounds for discipline. These policies thus affect
"unilateral implementation
of
a sweeping set
of
rules
.....
of
the 'quantity and kind"' that alter
the status quo as set forth in the 1960 policy and Government Code section 8314. (Oakland
Unified School District (1983) PERB Decision No. 367.)
Third, CSU asserts that the possibility
of
employee discipline is not within the scope
of
representation, otherwise all work rules would be subject to bargaining. CSU's reliance upon
Placer Hills Union School District (1984) PERB Decision No. 377, in which the district
required employees to sign for receipt
of
documents under threat
of
discipline, is not
applicable. The ALJ properly dismissed this argument, reasoning that HEERA section 3572.5
allows the MOU to supercede various Education Code provisions including those pertaining
generally to discipline. Although portions
of
the policies may concern matters within
management prerogative, other issues, involving the ill-defined criteria for discipline, internal
monitoring
of
employee e-mail, and training employees to comply with copyright and other
licensing restrictions, clearly are negotiable items. (Trustees
of
the California State University
(2001) PERB Decision No. 1451-H; Anaheim Union High School District (1981) PERB
Decision No. 177; State
of
California (Water Resources Control Board) (1999) PERB Decision
No. 1337-S.) In addition, as correctly stated by the ALJ, the absence
of
Education Code
section 895356 from HEERA section 3572.5 does not preclude the parties from negotiating
6Education Code section 89535 provides:
Any permanent or probationary employee may be dismissed,
demoted, or suspended for the following causes:
7

forms and bases for discipline not included within section 89535, provided that the subject is
related to wages, hours or other negotiable terms and conditions
of
employment. For example,
the parties' MOU contains provisions pertaining to oral and/or written reprimand and
temporary suspension without pay for specified reasons, both items not included within section
89535. Obviously, the parties have negotiated MOU provisions concerning discipline, which
are not subsumed within section 89535.
Finally, contrary to
CSU's
assertion, a policy that unlawfully restricts union access
creates a corresponding interference with employee's representation rights under section
3571(a). (The Regents
of
the University
of
California, University
of
California at Los Angeles
Medical Center (1983) PERB Decision No. 329-H.) The Board thereby agrees with the
ALJ's
finding on this issue.
(a) Immoral conduct.
(b) Unprofessional conduct.
(c) Dishonesty.
(d) Incompetency.
(e) Addiction to the use
of
controlled substances.
(f) Failure or refusal to perform the normal and reasonable duties
of
the position.
(g) Conviction
of
a felony or conviction
of
any misdemeanor
involving moral turpitude.
(h) Fraud in securing appointment.
(i) Drunkenness on duty.
8

2.
CSU's Telephone and Facsimile Usage Policy7
The Board agrees with the ALJ that this policy falls within the scope
of
representation
but disagrees with his conclusion that the policy is not a unilateral change in violation
of
HEERA section 3571(c). The Board further agrees with APC's assertion that the policy's
requirement for reimbursement for long distance calls is inconsistent with Government Code
section 8314. Section 8314(b )( 4) prohibits use "which is substantial enough to result in a gain
or advantage to the user or a loss to the state for which a monetary value may be estimated."
Clearly the costs
of
long-distance phone calls can be gleaned from telephone bills and so such
calls are prohibited by section 8314. On the other hand, the new policy allows employees to
make personal long distance calls but requires the employee to pay for them, an obvious
departure from section 8314.
The new grounds for discipline established under the new policy are also inconsistent
with section 8314. APC is correct in its contention that section 8314 does not cover discipline.
Rather, section 8314 calls for civil action brought by either the Attorney General's or a local
district attorney's office and for assessment
of
civil penalties
if
a violation is found.
In
contrast, CSU' s policy specifically states that "[ e]mployees found to be misusing State phones
for personal purposes in violation
of
this policy may be subject to appropriate personnel
action." APC's assertion that the new policy improves upon the 1960 policy also has merit.
Employers may not make unilateral changes to increase benefits, as well as reduce benefits.
(Palo Verde Unified School District (1983) PERB Decision No. 321.) The 1960 policy
prohibits the use
of
state "facilities, equipment, or supplies at any time for any purpose other
7The ALJ found that the use of fax machines was not specifically addressed in this
policy. The Board disagrees with this finding. In their exceptions, both parties have stipulated
to the coverage of fax machines by the policy under its plain wording. The Board hereby finds
that the policy applies to fax machines.
9

than the performance
of
official business."
If
the generally-worded 1960 policy does
indeed
cover telephones and fax machines, there is no question that, from an employees' perspective,
the new policy improves upon the 1960 policy
by
allowing for some personal use
of
telephones
and fax machines.
3. CSU Failure to Properly Notify APC
of
Change
The Board agrees with the ALJ' s finding that, based upon the existing practice
of
the
parties, CSU failed to notify APC
of
its implementation
of
these policies.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record
in
this
case, it is found that the Trustees
of
California State University (CSU) violated the
Higher
Education Employer-Employee Relations Act, Government Code section
357l(a)
and (c)
(HEERA). CSU unlawfully changed matters within the scope ofrepresentation when it
unilaterally implemented computer usage policies at both its Bakersfield and Fresno campuses
and telephone/facsimile usage policies at its Fresno campus without providing the Academic
Professional
of
California (APC) notice or an opportunity to bargain in violation
of
HEERA
section 357l(c). CSU, by the same conduct, also interfered with the right
of
employees to be
represented by APC, the exclusive representative, in violation
ofHEERA
section 3571(a).
Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU and its
representatives shall:
A. CEASE AND DESIST FROM:
1. Unilaterally implementing computer resources policies at the Fresno and
Bakersfield campuses and the telephone/facsimile usage policy at the Fresno campus to the
extent they relate to bargaining unit 4.
10

2.
Interfering with the rights
of
bargaining unit 4 employees to be represented
by
an empioyee organization
of
their choice.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA.
1.
Rescind the computer resources policies at the Fresno and Bakersfield
campuses and the telephone/facsimile usage policy at the Fresno campus to the extent they
relate to bargaining unit
4.
2.
Provide APC with reasonable notice and an opportunity to negotiate
about future attempts at the Fresno and Bakersfield campuses to implement computer resources
and telephone/facsimile usage policies.
3. Within ten (10) workdays
of
service
of
a final decision in this matter,
post at all work locations on the Fresno and Bakersfield campuses where notices to bargaining
unit 4 employees are customarily posted, copies
of
the Notice attached hereto as an Appendix.
The Notice must be signed by an authorized agent
of
CSU, indicating that CSU will comply
with the terms
of
this Order. Such posting shall be maintained for a period
of
thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
4. Upon issuance
of
a final decision in this matter, make written
notification
of
the actions taken to comply with this order to the Sacramento Regional Director
of the Public Employment Relations Board in accordance with the director's instructions.
Written notification to the regional director must be served concurrently on APC.
Members Baker and Neima joined in this Decision.
11

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-584-H, Academic Professionals of
California v. Trustees of the California State University, in which all parties had the right to
participate, it has been found that the Trustees of the California State University (CSU)
violated the Higher Education Employer-Employee Relations Act (HEERA), Government
Code section 3571(a) and (c). CSU violated the HEERA when it implemented computer
resources policies at its Fresno and Bakersfield campuses and the telephone/facsimile usage
policy at its Fresno campus without negotiating with the Academic Professionals of California
(APC).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Unilaterally implementing computer resources policies at the Fresno and
Bakersfield campuses and the telephone/facsimile usage policy at the Fresno campus to the
extent they relate to bargaining unit 4.
2. Interfering with the rights of bargaining unit 4 employees to be
represented by an employee organization of their choice.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1. Rescind the computer resources policies at the Fresno and Bakersfield
campuses and the telephone/facsimile usage policy at the Fresno campus to the extent they
relate to bargaining unit 4.
2. Provide APC with reasonable notice and an opportunity to negotiate
about future attempts at the Fresno and Bakersfield campuses to implement computer resources
and telephone/facsimile usage policies.
Dated: --------- TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
By: ---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-584-H
PROPOSED DECISION
(9/10/01)
Appearances: Edward Purcell, Consultant, for Academic Professionals of California; Janette
Redd Williams, University Counsel, for Trustees of the California State University.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
An employee organization contends here that a higher education employer unilaterally
adopted comprehensive policies covering use of computer resources, facsimile (fax) machines,
and telephones without affording the union the opportunity to negotiate. The union argues that
violation of the policies could result in discipline, and the policies contained other negotiable
topics. Therefore, the union alleges, the employer has breached its duty to bargain. The
employer does not dispute that it adopted the policies in question on two campuses. It
contends, however, that the policies constituted no change in terms or conditions of
employment, and, in any event, it had no duty to negotiate about the content of the policies.
The employer contends further that the union was aware certain policies were under
consideration for adoption, yet it did not seek to negotiate.
The Academic Professionals of California (APC) commenced this action on June 14,
2000, by filing an unfair practice charge against the Trustees of the California State University

(CSU). The general counsel of the Public Employment Relations Board (PERB or Board)
issued a complaint on December 26, 2000. The complaint, as amended on March 22, 2001,
alleges that CSU unilaterally implemented new policies concerning use of computer resources
at its Fresno and Bakersfield campuses; the complaint further alleges that CSU unilaterally
implemented a separate policy covering use of telephones and fax machines on its Fresno
campus. By this conduct, the complaint alleges, CSU refused to negotiate in good faith with
APC and interfered with the right of employees to be represented by an employee organization
of their choice, in violation of the Higher Education Employer-Employee Relations Act
(HEERA), section 3571(c) and (a), respectively. 1
CSU submitted a timely answer, generally denying all allegations and asserting a
number of affirmative defenses. Denials and defenses will be addressed beiow, as necessary.
A settlement conference was conducted on February 23, 2001, but the dispute was not
resolved. The undersigned conducted a formal hearing in Los Angeles on May 17, 2001. With
the receipt of the final brief on July 26, 2001, the case was submitted for decision.
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code. In relevant part, section 3571
states:
It shall be unlawful for the higher education employer to do
any of the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For purposes
of this subdivision, "employee" includes an applicant for employment
or reemployment.
( c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
2

FINDINGS OFF ACT
Jurisdiction
APC is an employee organization within the meaning of section 3562(£)(1) and the
exclusive representative of an appropriate unit of academic support employees (bargaining
unit 4) within the meaning of section 3562(i). CSU is a higher education employer within the
meaning of section 3562(g). At all relevant times, APC and CSU were parties to a
memorandum of understanding (MOU). Relevant provisions of the MOU are discussed below,
as necessary.
Fresno Policy
Since approximately 1960, CSU has had an incompatible activities policy in effect. In
relevant part, the policy provides that "the use of state time, facilities, equipment or supplies at
any time for any purpose other than the performance of official business" is "inconsistent,
incompatible, or in conflict with the duties of an employee." There is no evidence that CSU
adopted other incompatible activities policies from 1960 to the late 1990's, when the policies at
issue here were established. Although the latter policies were adopted in the late l 990's, APC
did not become aware of them until they surfaced in connection with a disciplinary action in
2000.
On April 4, 2000, Carolyn Botta (Botta), an employee at the Fresno campus, received a
notice of termination. Among other things, the notice alleged that she used computer resources
for personal reasons. APC representative Edward Purcell (Purcell) requested from CSU
certain information for use in representing Botta. Included in Purcell's request were all
policies in effect on the Fresno campus concerning employee use of CSU-owned computer
resources, telephones and fax machines.
3

On June 1, 2000, Jeannine Raymond (Raymond), director of human resources for the
Fresno campus, forwarded to Purcell a policy covering use of CSU computer resources. 	The
written policy, dated June 1998 and implemented on or about March 24, 1999, is
comprehensive and need not be set forth in its entirety here.2 It contains, however, several
provisions that are relevant to the instant dispute. A partial list of these provisions is briefly
summarized immediately below.
The policy provides that computer resources are to be used only for CSU-related
activities. It also states that "violations of authorial integrity (concerning electronic
information), including plagiarism, invasion of privacy, unauthorized access, and trade secrets
and copyright violations, may be grounds for sanctions against members of the academic
community." The policy provides that "all students, faculty, administration, and staff are
responsible for seeing that these computing facilities are used in an effective, efficient, ethical
and lawful manner." Regarding "computer accounts," the policy states that "misuse of
accounts or violation of the delineated conditions may result in the termination of the accounts,
or, in cases of more serious infractions, the submission of the case to an appropriate
disciplinary authority for further investigation." In such cases, the policy continues,
"appropriate actions must follow the appropriate procedures (for example, the various
collective bargaining agreements govern appropriate actions involving faculty and staff
members and specifies specific procedures.)" The policy prohibits random mailings (also
known as "spam mail" or "spamming") to large numbers of employees. The policy sets out
several inappropriate uses of e-mail and recognizes the possibility of "internal monitoring ( of
2The document initially sent to Purcell was a draft policy that was never implemented.
The draft is irrelevant to the instant dispute and will not be considered here. This proposed
decision will address the policy that was eventually implemented.
4

e-mail messages)
by
an authorized individual." The policy concludes, "violations
of
this
policy will be handled through normal university procedures."
Asked
if
employees could be disciplined for abuse
of
e-mail facilities, Raymond
responded, "they could, I suppose." With respect to how the policy relates to employee
discipline in general, Raymond said employee conduct would be evaluated in light
of
the
policy to determine
if
corrective action is appropriate.
In addition, Raymond's transmission to Purcell included a separate policy covering use
of
telephones and fax machines. Raymond informed Purcell that the telephone/fax machine
policy was initially sent to administrators, deans and department heads "for distribution to their
employees" on June 5, 1997. In brief, the policy provides that such equipment is to
be used
only for "State business." It authorizes incidental use
of
telephones, noting that personal use
during the workday is to be kept at a minimum, long distance calls for personal reasons must
be billed to a personal calling card or identified immediately as a personal call, and
reimbursement must be provided to CSU. Use
of
fax machines is not specifically addressed.
The policy concludes, "employees found to be misusing State phones for personal purposes in
violation
of
this policy may be subject to appropriate personnel action."
Raymond pointed out to Purcell that both policies are found in the Manual
of
Administrative Policies and Procedures. She noted that the manual was originally distributed
to all departments in August 1999 and is available in the School
of
Education and the
Department
of
Human Development.
APC quickly adopted the position that it had not received formal notice that these
policies would be implemented. Accordingly, it filed this unfair practice charge on June 14,
2000.
5

On November 10, 2000, while the unfair practice charge was under investigation,
Raymond sent another memo to employees covering use
of
campus electronic mail (e-mail)
and computers. The purpose
of
the memo was to review existing policy. Once again, the
memo is a comprehensive statement
of
policy and need not be set forth in its entirety. In brief,
it reiterates that e-mail accounts and computer resources are to be used only for work related
matters. Among the uses expressly prohibited are the following: 	sharing
of
e-mail accounts or
passwords; accessing or downloading pornographic material; random mailings
of
"any
message
of
a commercial or political nature;" transmission
of
humor which may be construed
as offensive or harassment; and any activity that violates state or federal laws. Raymond's
memo concludes, "failure to adhere to the standards described in the campus policy will lead
to
an appropriate personnel action which may include an oral or written reprimand or a
disciplinary action pursuant to the appropriate collective bargaining agreement." Upon receipt
of
Raymond's November 2000 memo, APC amended the unfair practice complaint to include
additional changes to the Fresno policy contained therein.
Raymond testified that APC use
of
e-mail to communicate with employees would not
fall under the definition
of
"random mail," and the Fresno campus has placed no restrictions on
e-mail use by APC stewards or on APC itself. She testified, however, that she does not equate
"State business" with "union business." In this regard, she said the policy presents a "conflict"
between the right to distribute a union message and the prohibition against using the policy for
other than state business. "Union messages" are not "state business," Raymond testified.
Raymond also said that no employee has been disciplined based on a violation
of
the
Fresno policies. According to Raymond, employees ordinarily are disciplined for actions that
violate statutory standards set forth in the Education Code, not for violations of the policy
6

itself. On cross-examination, however, Raymond conceded that an employee could be
disciplined for abuse
of
the e-mail policy and other policies related to computer use.
Bakersfield Policy
APC contends a similar computer resource use policy was adopted by the Bakersfield
campus without notice to the union. On or about September 7, 2000, a comprehensive
computer and network use policy appeared for the first time on the Bakersfield website. That
policy need not be set forth in its entirety. In brief, it provides that "minor infractions
of
this
policy, when accidental, such as consuming excessive resources or overloading computer
systems, are generally resolved informally by the unit administering the accounts or network."
Repeated "minor infractions or misconduct which is more serious," the policy continues, could
result in loss
of
computer privileges or
refe1Ted
to an appropriate CSU authority for further
action. The policy concludes with
18
enumerated examples
of
conduct which would violate
the policy. Examples are "knowingly or carelessly performing an act that will interfere with
the normal operation
of
computers;" "deliberately wasting/overloading computing resources,"
such as printing too many copies
of
a document; violating the terms
of
software licensing
agreements or copyright laws; using e-mail to harass or threaten other employees; sending
"inappropriate" mass mailings or "spamming," including mailings to newsgroups, mailing lists,
or individuals; and transmitting materials that are slanderous or defamatory, or that otherwise
violate existing laws or CSU regulations.
Kellie Garcia (Garcia), director
of
personnel at the Bakersfield campus, testified that no
employee has been disciplined under the policy. However, her testimony is not a model
of
clarity. On direct examination, she first said that discipline is initiated under appropriate
statutes, not the policy. On cross-examination, however, she conceded that employees may be
disciplined for violation of CSU policies, and employee conduct is measured against the
7

content
of
the particular policy in question. She also said an employee or APC representative
may be disciplined for "inappropriate" mailings to a "mailing list," and "misuse"
of
e-mail by
APC could result in loss
of
e-mail privileges under the policy. However, she noted that "it's
routine that the unions do use the e-mail system and we do not
--
we have not monitored it or
found it to be inappropriate." On redirect examination, Garcia modified her testimony
somewhat as it relates to APC use
of
e-mail. She said that the policy prohibits only "repeated"
mass mailings
of
the "same information" to employees who had requested they not be included
on the list.
APC stewards at Fresno and Bakersfield regularly communicate with employees
through e-mail at the campus level, and APC uses e-mail as a tool to reach larger numbers
of
employees. As Garcia testified, the Bakersfield campus is aware
of
APC use
of
e-mail to
communicate with employees. There is no evidence that the Fresno campus is aware
of
the
practice. No APC representatives have been disciplined, nor has CSU moved to prohibit APC
use
of
equipment for these purposes.
It is APC's position here that the union never received notice
of
the policies
implemented at Fresno and Bakersfield. Charles Goetzel (Goetzel), who has served as
statewide president
of
APC since May 1996, testified regarding a longstanding policy under
which the union receives official notice
of
changes in negotiable topics at its headquarters
office in Oakland. Because APC received no notice
of
the implementation
of
the policies
discussed above, Goetze! reminded CSU presidents in January 2001 that formal notice
of
proposed changes was to be sent to APC in Oakland. He said the reminder was sent precisely
because CSU had not complied with the policy. CSU's failure to comply with the notice policy
apparently was not new. Goetzel testified without rebuttal that, beginning in 1996, he and
8

Purcell have had several conversations with administrators in the Chancellor's office about the
probiem.
CSU has argued that APC received actual notice
of
at least some
of
the changes at issue
here. Raymond testified that the e-mail and telephone policies were discussed at meetings
of
the Joint Labor Council on the Fresno campus as early as January and March 1997. There is
no evidence about the extent
of
the discussions. Documentary evidence indicates only that the
telephone and e-mail policies were placed on the agenda as items for discussion in meetings
held during that time. APC steward Tony Garduque (Garduque) was a member
of
the Joint
Labor Council at the Fresno campus and presumably participated in its meetings. As a
steward, however, Garduque was not a statewide officer
of
APC. He was not on the
negotiating team, and he had no authority to accept notice
of
changes in negotiable topics from
CSU. The extent
of
his authority was to act as a representative in grievances and related
matters.
ISSUE
1.
Did CSU's Fresno or Bakersfield campuses unilaterally adopt policies regarding
use
of
computer resources, in violation
of
section 3 571 (c)?
2. Did CSU's Fresno campus unilaterally adopt a policy covering use
of
telephones
and fax machines, in violation
of
section 3571(c)?
CONCLUSIONS OF LAW
The theory of the complaint in this case is one
of
unilateral change. To prevail on a
complaint of unilateral change, the charging party must establish by a preponderance
of
the
evidence that (1) the employer implemented a change in policy; (2) the action was taken
without giving the exclusive representative notice or an opportunity to bargain over the
change; (3) the action is not merely an isolated incident, but amounts to a change of policy
9

(i.e., having a generalized effect or continuing impact upon bargaining unit members' terms
and conditions
of
employment); and ( 4) the change in policy concerns a matter within the
scope
of
representation. (Walnut Valley Unified School District (1981) PERB Decision
No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
APC contends that the policies in question here include matters within the scope
of
representation, they modify existing practice and implement new requirements, and CSU failed
to
provide notice and an opportunity to negotiate. Under PERB law, APC asserts, meetings at
the Fresno campus with Garduque present were inadequate to constitute valid notice, and there
is no evidence whatsoever that APC received notice the policy would be adopted at
Bakersfield. In addition, APC argues, the 1960 incompatible activities statement is not
applicable here because computers and e-mail did not exist at that time; and, in any event,
close comparison
of
the contested policies with the 1960 policy indicates there are key
differences. Finally, APC argues, the broadly worded prohibitions in the new policies,
if
applied literally, have the potential to deprive the union
of
its right to distribute information to
employees. For example, APC points out, the policy could be read to characterize APC's
distribution
of
information as unlawful "random" or "spam" mailing under the policies.
In response, CSU first argues that APC has failed to establish a change in the status
quo. According to CSU, there is no evidence that either campus ever permitted use
of
its
computer resources, telephones or fax machines in a manner that differs from the policies in
question; and the mere compilation
of
existing rules does not constitute a unilateral change
under PERB law. CSU next contends the policies do not include matters within the scope of
representation under HEERA. The policies do not involve wages or hours of employment,
CSU asserts, and they are not brought within the scope of representation under the applicable
test to determine negotiability; that is, the policies do not involve the employment relationship,
10

they are not
of
such concern to the parties that the mediatory influence
of
collective bargaining
would be an appropriate means
of
resolving the dispute, and negotiations about the policies
would unduly abridge the employer's freedom to exercise prerogatives essential to achievement
of
its mission.
In a lengthy, point-by-point analysis
of
every aspect
of
the Fresno and Bakersfield
policies, CSU argues that nothing in the policies falls within the scope
of
representation, and
nothing in the policies regarding potential discipline or infractions makes them a mandatory
subject
of
bargaining. Discipline, CSU points out, is covered by the parties' collective
bargaining agreement and relevant statutes; and, in any event, under PERB law a work rule
that does not otherwise relate to a negotiable topic is not made negotiable merely by virtue
of
its potential relationship to discipline.
Nor does the Fresno telephone/fax machine policy fall within the scope
of
representation, CSU contends. According to CSU, the policy is entirely consistent with
existing statutes and constitutes no change whatsoever.3
The threshold question here is whether the subject matter contained in the Fresno and
Bakersfield policies fall within the scope ofrepresentation under HEERA. Section 3562(r)
defines the scope
of
representation in the CSU system as follows:
(r)(l) For purposes
of
the California State University only,
"scope
of
representation" means, and is limited to, wages, hours
of
employment, and other terms and conditions
of
employment.
The scope
of
representation shall not include:
3CSU's reliance on Adtranz Abb Daimler-Benz Transportation v. NLRB (D.C Cir.
2001) 253 F.3d 19 [167 LRRM 2566] as authority for an employer to adopt work rules is
misplaced. In that case, the District of Columbia circuit concluded an employer's work rules,
adopted prior to a union election, did not interfere with protected concerted activity. The
theory of the complaint against CSU is one of unilateral change and refusal to negotiate with
an exclusive representative, not one of interference in an election setting. Therefore, this case
is controlled by different precedent and Adtranz has little relevance here.
11

(A) Consideration of the merits, necessity, or organization of any
service, activity, or program established by statute or regulations
adopted by the trustees, except for the terms and conditions of
employment of employees who may be affected thereby.
(2) All matters not within the scope ofrepresentation are
reserved to the employer and may not be subject to meeting and
conferring, provided that nothing herein may be construed to
limit the right of the employer to consult with any employees or
employee organization on any matter outside the scope of
representation.
Whether enumerated items such as wages and hours are within the scope of representation is
self evident. In determining if nonenumerated matters fall within the scope of representation
as a "term or condition of employment," PERB applies a three-part test. A subject is within the
scope ofrepresentation if (1) it involves the employment relationship; (2) is of such concern to
both management and employees that conflict is likely to occur and the mediatory influence of
collective bargaining is an appropriate means of resolving the conflict; and (3) the employer's
obligation to negotiate would not unduly abridge its freedom to exercise those managerial
prerogatives (including matters of fundamental policy) essential to the achievement of the
employer's mission. (Trustees of the California State University (2001) PERB Decision
No. 1451-H, adopting proposed decision of administrative law judge at pp. 8-9.) This test is
similar to that first adopted in Anaheim Union High School District (1981) PERB Decision
No. 177 and is commonly referred to as the Anaheim test.
It cannot be disputed that the policies at issue here carry the potential for discipline.
PERB has long held that implementation of policies that include the potential for disciplinary
action may have a direct impact on wages, health and welfare benefits, and other terms and
conditions of employment since such action may reduce or eliminate entitlement to those
items. Thus, PERB has held, "rules of conduct which subject employees to disciplinary action
12

are subject to negotiations both as to the criteria for discipline and
as
to procedure to be
followed.;; 	(San Bernardino City Unified School District (1982) PERB Decision No. 255 at
p.
11
(San Bernardino).) In a more recent decision covering subject matter akin to the policies
under review here, PERB held that an expansion or modification
of
an incompatible activities
statement covering use
of
internet/intranet facilities is within the scope
of
representation under
the Ralph
C.
Dills Act (Dills Act).4 (State
of
California (Water Resources Control Board)
(1999) PERB Decision No. 1337-S, pp. 7-8 (Water Resources Control Board).) Therefore, I
find that the Fresno and Bakersfield computer use policies are negotiable to the extent they
relate to discipline.
In addition, the Fresno and Bakersfield policies relate to APC's practice
of
communicating with employees through e-mail. Subject to reasonable regulation, employee
organizations under HEERA have the right
of
access to "institutional
....
means
of
communication" and "institutional facilities" to communicate with employees. (Sec. 3568.)
Although it is clear that this right does not extend to every type
of
communication in existence
at CSU (The Regents
of
the University
of
California v. Public Employment Relations Board
(1986) 177 Cal.App.3d 648, 654 [223 Cal.Rptr. 127]), it is equally clear that computer
resources, telephones and fax machines constitute reasonable means
of
access in a large
academic institution. PERB has long held that reasonable access rights are negotiable. 	(State
of California (Department
of
Personnel Administration, et al.) (1998) PERB Decision
No. 1279-S, adopting proposed decision of administrative law judge at p. 38; see also
California State University, Sacramento (1982) PERB Decision No. 211-H, pp. 27-32 [CSU
4The Dills Act is codified at section 3512 et seq. The scope ofrepresentation under the
Dills Act is parallel to that in HEERA. Section 3516 states: "The scope of representation shall
be limited to wages, hours, and other terms and conditions of employment, except, however,
13

must meet and discuss access rights even with non-exclusive representative]; Healdsburg
Union High Schooi District (1984) PERB Decision No. 375, p. 19.) Therefore, I conclude that
the policies adopted by the Fresno and Bakersfield campuses fall within the scope of
representation to the extent they relate to statutory access rights.
CSU advances three main arguments in support of its position that the policies are not
within the scope of representation: first, the Board distinguished San Bernardino in Placer
Hills Union School District (1984) PERB Decision No. 377 (Placer Hills); second Water
Resources Control Board was decided under reasoning applicable only under the unique scope
ofrepresentation in the Dills Act; and third, a combination of Education Code section 89535,
HEERA section 3572.5, and the parties' MOU essentially removes the policies from the scope
of representation as far as discipline is concerned.
Taking these arguments in reverse order, I recognize that Education Code
section 89535 enumerates various causes for discipline. That section provides:
Any permanent or probationary employee may be dismissed,
demoted, or suspended for the following causes:
(a) Immoral conduct.
(b) Unprofessional conduct.
(c) Dishonesty.
(d) Incompetency.
(e) Addiction to the use of controlled substances.
(f) Failure or refusal to perform the normal and reasonable
duties of the position.
(g) Conviction of a felony or conviction or any misdemeanor
involving moral turpitude.
that the scope of representation shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or executive order."
14

(h) 	Fraud in securing employment.
(i) 	Drunkenness on duty.
HEERA Section 3572.5 provides that where certain enumerated provisions oflaw conflict with
an MOU, the MOU shall be controlling. Education Code section 89535 is not among the
provisions listed in section 3572.5.
I also recognize that the parties' MOU includes a comprehensive article on discipline
and other "corrective action." Under Article 12, section 12.12, disciplinary action includes
only "dismissal, demotion or suspension without pay." The definition of "disciplinary action"
under the agreement does not include an oral or written reprimand, although such corrective
action is permitted in section 12.1. Also, the MOU permits "temporary suspension with pay"
for reasons related to "(a) the safety of persons or property, or (b) the prevention of the
disruption of programs or operations, or (c) investigation of allegations which may lead to a
notice of disciplinary action."
CSU asserts that any disciplinary action must fall within one of the specified statutory
causes in Education Code section 89535, the MOU comports with the criteria for discipline set
out in Education Code section 89535, and the contested policies provide that violations are to
be processed in accordance with existing CSU procedures and collective bargaining
agreements. If an employee sexually harassed another employee using e-mail, CSU continues,
the employee would be charged with unprofessional conduct under Education Code section
89535, subsection (b), not with a violation of the Fresno computer use policy. Therefore, CSU
concludes, the contested policies evidence no change in a negotiable matter.
It may be true that discipline generally is covered by the parties' MOU, and the MOU
does not conflict with the specific provisions in Education Code section 89535. What CSU
overlooks, however, is that the policies for the first time enumerated multiple uses of computer
15

resources that would subject an employee to discipline. In doing so, CSU implemented a
policy that impinged on a negotiable matter. It bears repeating that rules of conduct which
subject employees to disciplinary action are subject to negotiation both as to criteria for
discipline and as to the procedure to be followed. (San Bernardino at p. 11; see also San
Bernardino City Unified School District (1998) PERB Decision No. 1270, adopting proposed
decision of administrative law judge at p. 52; Vernon Fire Fighters v. City of Vernon (1980)
107 Cal.App.3d 802, 815-816 [165 Cal.Rptr. 908] [citing with approval private sector cases
holding that a new requirement that exposes employees to discipline which did not prevail
under pre~xisting rules "vitally affected employee tenure and conditions of employment
generally" and is therefore a matter which is not subject to unilateral employer control].)
The argument that employees are formally charged with violations of Education Code
section 89535, rather than a particular policy, when CSU proposes discipline misses the mark.
In reality, the conduct that forms the true basis of the discipline and which an employee must
rebut is measured against the underlying policy governing use of computer resources, as
Raymond and Garcia testified. Any claim that the actual reasons for discipline are based
solely on the content of Education Code section 89535, as opposed to the underlying policy,
elevates form over substance and cannot be used to erode APC's right to bargain about a
subject so fundamental to the employment relationship as discipline.
In addition, the absence of Education Code section 89535 from HEERA section 3572.5
does not require a different conclusion. While it is clear that Education Code section 89535 is
not among the provisions oflaw listed in section 3572.5 as subject to supersession, it does not
follow that an MOU may never include aspects of discipline that are not expressly enumerated
in Education Code section 89535, provided the subject is otherwise related to wages, hours or
other negotiable terms and conditions of employment. In fact, the parties' MOU illustrates the
16

point. Education Code section 89535 provides that employees may be "dismissed, demoted, or
suspended" for certain causes, thus suggesting discipiine must fall within these specific
actions. Yet the MOU contains a provision for an "oral and/or written reprimand" as a form of
discipline. The MOU also provides for temporary suspension without pay in certain
enumerated situations. But Education Code section 89535 does not mention temporary
suspension or criteria for which an employee might incur a temporary suspension. Plainly, the
parties have negotiated about aspects of discipline that are not included in Education Code
section 89535.
Further, I conclude that CSU's reliance on Placer Hills is misplaced. The policy at
issue in Placer Hills required an employee to acknowledge receipt of certain work-related
documents in writing or face possible discipline. PERB found that the potential of discipline
for violation of the requirement did not render the requirement itself negotiable. In reaching
this conclusion, the Board reasoned that the rule did not relate to an otherwise negotiable topic.
"The fact that discipline may result if an employee refuses to acknowledge receipt does not
elevate the rule itself to a disciplinary matter with an impact on wages, hours or other
enumerated subjects. To adopt this analysis would bootstrap all work rules into negotiable
items within scope. We, therefore, find the institution of this rule to fall within the parameters
of the employer's discretion." (Placer Hills at p. 36.) I conclude that Placer Hills may be
distinguished from the instant case.
The policies at issue here involve far more than a mere request that an employee
acknowledge receipt of a document from the employer, plainly a minor matter not related to
wages, hours or other terms and conditions of employment. The policies at issue here
expressly relate to legitimate employee concerns about work rules that govern use of computer
resources, as well as APC's organizational concern about access to equipment to communicate
17

with employees. These are policies that involve not only discipline, they also involve work
rules that govern use
of
equipment that is indispensable for employees to function in a
university setting in a technology-driven age. Plainly, the policies at issue here do not involve
the same kind
of
"work rules" that the Board found nonnegotiable in Placer Hills. And, in a
recent HEERA case, PERB found negotiable a work rule that carries the potential for
discipline and affects the employment relationship far less than those at issue here, thus casting
doubt on the continued validity
of
Placer Hills. (See e.g., Trustees
of
the California State
University, supra, PERB Decision No. 1451-H, adopting proposed decision
of
administrative
law judge at pp. 9-10 [requirement that employees wear name tags is a "plant rule" that falls
within the scope
of
representation.].)
Nor is the reasoning underlying Water Resources Control Board inapplicable here, as
CSU argues. In that case the Board found an incompatible activities statement covering
internet/intranet use negotiable. The Board reasoned that the Dills Act expressly provides that
section 19990, which contains an incompatible activities statement, may be superseded
by
a
MOU.5 Because section 19990 does not apply to CSU or permit supersession
of
an
MOU
under HEERA, CSU argues, Water Resources Control Board has no application here. I find
this argument has limited application here.
Like the Dills Act, HEERA is a supersession statute. Section 3572.5 sets forth several
Education Code sections which may be superseded by an MOU
if
there is a conflict between
the MOU and the statute. A few of these are relevant here. Education Code section 89500
provides that CSU has the authority to establish rules for, among other things, "dismissal,"
"demotion," and "suspension." Education Code section 89542.5 provides that CSU may
18

establish a grievance procedure to resolve allegations that an employee was "directly wronged
in connection with the rights accruing to his or her job classification, benefits, working
conditions, appointment, reappointment, tenure, promotion reassignment, or the like."
Thus, according to section 3572.5, Education Code sections giving CSU authority over
discipline and a broad category of other negotiable "working conditions" may be superseded by
an MOU. As discussed in more detail immediately below, the Fresno and Bakersfield policies
relate to discipline and other negotiable working conditions. Under the Board's reasoning in
Water Resources Control Board, such matters fall within the scope of representation.
It cannot be disputed that many aspects of the contested policies involve managerial
prerogatives. Some aspects of the policies do not involve a managerial prerogative. And other
aspects of the policies may involve a managerial prerogative, yet lend themselves to proposals
which might satisfy union concerns while preserving the prerogative. Although every aspect
of the policies that arguably involves a matter within the scope of representation need not be
repeated here, a few are noteworthy. These examples are not meant to define the parameters o
any future negotiations between the parties. They are offered here soley for the purpose of
resolving the issues presented by the complaint.
f
The Fresno policy plainly relates to criteria for discipline or other action akin to
discipline. Ill-defined standards such as "authorial integrity" and "invasion of privacy" may be
grounds for unspecified "sanctions." An employee who fails to use computer resources in an
"effective, efficient, ethical and lawful manner" may find himself subject to discipline under
the Fresno policy. These are ambiguous standards, especially when applied to the use of
5Section 19990 requires each state agency to determine those activities which "are
inconsistent, incompatible or in conflict with their duties as state officers or employees." Dills
Act section 3517 .6 provides that section 19990 may be superseded by a MOU.
19

equipment that has such a wide a variety of uses and features, such as computer resources. Yet
the policy does not mention how these standards are defined. Nor is ;;misuse" of a computer
account defined, although "serious infractions" for misuse may land an employee in the middle
of an "appropriate disciplinary authority for further investigation." Even if such violations
would be processed in accordance with the MOU, they involve new criteria for discipline and
therefore are negotiable. (San Bernardino at p. 11.)
There is no guarantee of confidentiality for "programs and files" under the Fresno
policy. The policy provides, "in most instances, there is no reason for e-mail to be retrieved by
anyone other than the intended addressee, but in limited and appropriate circumstances ( e.g., in
the course of an official investigation of wrongdoing), e-mail messages may become subject to
internal monitoring by an authorized individuaL" Because the policy does not delineate the
precise conditions under which an employee's files may be monitored, it is not difficult to
envision employee concerns about the confidentiality of such files. Is an official investigation
the only circumstance under which an employee's e-mail may be retrieved, or is it but one
example of such a circumstance? What rights does an employee have to notice and/or union
representation if CSU determines to monitor his or her files? In my view, a carefully crafted
proposal which permits CSU to investigate legitimate wrongdoing while affording employees
protection against unnecessary invasion of privacy would fall within the scope of
representation.
In addition, the Fresno policy states that "unmannerly or unprofessional" conduct using
a computer account is "inappropriate," but the policy does not attempt to explain the definition
of that standard except to say that "obscene or abusive messages" are not acceptable. This
provision may relate to protected conduct and create legitimate union concerns. Does a union
20

representative who vigorously criticizes a supervisor on a work-related matter run afoul
of
this
standard as acting in an "unmannerly or unprofessional;; manner and thereby subject himself or
herself to discipline? A proposal which seeks to incorporate standards established by PERB
decisions certainly would fall within the scope
of
representation, while protecting managerial
concerns about inappropriate behavior. (See e.g., Rancho Santiago Community College
District (1986) PERB Decision No. 602,
p.
13
[employee speech will lose its protection only
where it is so "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with
malice" as to cause "substantial disruption" in operations]; see also Barstow Unified School
District (1996) PERB Decision No. 1164, adopting proposed decision
of
administrative law
judge at p. 22 [individual employee activity directed against a supervisor's performance is
protected when its purpose is to further a legitimate interest in working conditions]; compare
State
of
California (Department
of
Transportation) (1982) PERB Decision No. 257-S
[employee criticism aimed at humiliating supervisor based on personal grudge not protected].)
The Fresno policy further provides that software protected by copyright laws is not to
be copied, except as permitted by law or by license agreement with the owner
of
the copyright.
An employee may be ill-equipped to comply with such a rule, and a union may have a
legitimate concern that additional information or training is necessary in copyright law or
licensing for employees who may not be informed about such matters. PERB has found
training negotiable because it may relate to employee job performance, evaluations, and wages.
(See e.g. Healdsburg Union High School District, supra, PERB Decision No. 375, p. 83.)
The Bakersfield policy contains similar provisions that may fall within the scope
of
representation. It provides that "minor infractions," "when accidental," such as consuming
"excessive resources or overloading computer systems" may be resolved informally. But
"repeated minor infractions or misconduct which is more serious" may result in loss of
21

computer privileges or modification
of
such privileges. Several examples
of
"more serious
vioiations" are set forth in the policy, but the policy does not indicate how many infractions
must occur before an employee is considered to be a repeat offender. The same section
provides that "offenders may be referred to their sponsoring advisor, department, employer, or
other appropriate university office for further action." Further, the policy contains a long list
of
actions that would violate the policy. These range from violating software licensing
agreements to transmitting slanderous or defamatory material to initiating chain letters to mass
mailing or spamming. Thus, the policy relates to criteria for discipline, a matter within the
scope
of
representation.
The Bakersfield policy also provides that system administrators and other CSU
employees have the "right to access user files when necessary to protect the integrity
of
computer systems or the rights or property
of
the University." Like the Fresno policy, this
provision creates obvious employee and APC concerns about privacy rights that could
be
addressed at the bargaining table without infringing on basic managerial rights.
The policy provides that "misuse"
of
computer resources may result in the loss
of
access to such resources. This too might reasonably create employee and APC concerns about
the conditions under which an employee could lose the right
of
access to resources that are
essential for employee performance, or have an effect on evaluations that are based on
performance. As noted above, these are matters that have traditionally been subjects
of
negotiations.
The Bakersfield policy provides that "when accessing remote resources from CSUB
facilities, users are responsible for obeying both the policies set forth in this document and the
policies of other organizations." APC may be concerned about whether employees are aware
of policies set by "other organizations" and propose that employees, at minimum, receive
22

notice and/or training in such policies before they are held accountable for compliance
with
this requirement. It seems uniikely that negotiations about such matters would interfere with
CSU managerial prerogative.
Under the Anaheim test, I find the Fresno and Bakersfield policies contain at least the
negotiable matters noted above. The policies clearly involve the use
of
resources that are
essential for employees to perform in a large university setting. As such, they involve the
employment relationship. The issues raised by the policies are
of
such concern to management
and employees that conflict is likely to occur. CSU is legitimately concerned about
maintaining efficient use
of
its computer resources and avoiding liability as a result
of
misuse
or illegal use
of
such resources. APC and emp1oyees similarly may have concerns about
matters such as privacy rights, discipline, training, performance evaluations, and access to
computer resources as a means
of
communication. The mediatory influence
of
collective
bargaining is an appropriate means
of
resolving the conflict, and the obligation to negotiate
would not unduly abridge CSU's freedom to exercise those managerial prerogatives essential to
achievement
of
its mission.
APC does not seek to "bootstrap" a minor non-negotiable work rule into a matter within
the scope
of
representation or otherwise infringe on a managerial prerogative. APC points out
that the union seeks to negotiate only about such matters as the impact
of
the policies
on
discipline, the practice
of
spamming, and the definition
of
terms such as "excess" use
of
computer resources. APC recognizes in its brief that, "the Union could not propose
elimination
of
the CSU's right to establish a reasonable use policy under the Government Code
because to do so would, in essence, supersede the authority provided the CSU under the Code.
No conflict would exist, however, concerning a whole variety of likely Union proposals which
might seek to influence the content of a reasonable use policy involving such topics as the
23

types
of
equipment which an employee can use, the amount
of
such permissible use, penalties
for misuse, privacy concerns, union use
of
resources, etc." Indeed, it is settled that use
of
computer resources is a matter about which the state employer must bargain under the Dills
Act. (Water Resources Control Board.) There is no reasonable basis for concluding that
similar negotiations under HEERA would interfere with managerial prerogatives
of
higher
education employers.
Finally,
if
APC submits proposals that CSU contends go beyond the scope
of
negotiations, such proposals may be rejected or refined at the bargaining table. 6 The duty
imposed on CSU here is not to negotiate about managerial prerogatives. The duty to negotiate
extends only to negotiable topics and carries no obligation to agree. As the Board recently
pointed out, "the law does not mandate success, but only requires a 'good faith' effort
by
the
parties to reach agreement. A willingness to negotiate will, by itself, never guarantee success.
A refusal to negotiate, however, will almost always guarantee failure, and circumvent what
legally and rightfully should be a mutual effort to find solutions to mutual problems." (Lucia
Mar Unified School District (2001) PERB Decision No. 1440, adopting proposed decision
of
administrative law judge at p. 45.)
The next question for consideration is whether the action taken by the Fresno and
Bakersfield campuses constituted a change, for CSU has no duty to negotiate about adoption
of
6CSU argues that its policies contain managerial prerogatives embedded in federal and
state statutes such as the California Public Records Act (Govt. Code, sec. 6250 et seq.) and the
Electronic Communications Privacy Act (18 U.S.C., sec. 2510 et seq.). Because the theory of
the complaint is one
of
unilateral change, there are no concrete proposals to evaluate here.
However,
if
CSU is confronted with a proposal that conflicts with a managerial prerogative
protected by statute, it is free to reject the proposal or the parties may refine the proposal to
bring it within the scope of representation. Terms and conditions of employment are not
rendered nonnegotiable merely because they are statutory in nature. (See e.g., Fremont Unified
School District (1997) PERB Decision No. 1240, adopting proposed decision of administration
law judge at pp. 34-35.)
24

policies that
do
not change the status quo. Arguing that APC has failed to establish a change in
practice, CSU claims there is no evidence that either campus administered its computer
resources in a manner inconsistent with the challenged policies. "There is simply not a shred
of
evidence in the record to establish (or even suggest) that either campus knowingly permitted
any
of
the improper uses described in the contested policies," CSU argues, "whether using
computing facilities or other university-owned equipment." The mere compilation
of
already
existing rules does not constitute a negotiable change, CSU concludes. I do not find this
argument persuasive.
The issue here is not whether CSU previously permitted improper use
of
its computer
resources. Even
if
CSU has not condoned improper use
of
its resources in the past, the
contested policies represent a change in the status quo that far exceeds a mere compilation
of
whatever unwritten rules CSU claims existed. The new policies challenged here represent
unilateral implementation
of
a sweeping set
of
rules for the first time at Fresno and
Bakersfield. Their implementation constituted a unilateral change in the "quantity and kind"
of
written rules employees and APC were bound to follow previously. (See e.g. Oakland Unified
School District (1983) PERB Decision No. 367, p. 24; State
of
California (Department
of
Personnel Administration, et al.) (1998) PERB Decision No. 1279-S, adopting proposed
decision
of
administrative law judge at pp. 37-38.) As such, the policies changed the status
quo.
In addition, as far as use of computer resources is concerned, the policies changed the
status quo as reflected in CSU's 1960 policy and Government Code section 8314. The 1960
policy provides that an employee may not use CSU resources "at any time for any purpose
other than the performance of official business." In relevant part, section 8314 provides:
25

(a) It shall
be
unlawful for any elected state officer,
appointee, employee, or consultant, to use
or
permit others to use
state resources for a campaign activity,
or
personal
or other
purposes which are not authorized
by
law.
(b)
For
purpose
of
this section:
(1) "Personal purpose" means those activities the purpose
of
which is for personal enjoyment, private gain or advantage, or an
outside endeavor not related to state business. "Personal
purpose" does not include an occasional telephone call, or an
incidental and minimal use
of
state resources, such as equipment
or office space, for personal purposes.
(3) "State resources" means any state property or asset,
including, but not limited to, state land, buildings, facilities,
funds, equipment, supplies, telephones, computers, vehicles,
travel, and state compensated time.
(4) "Use" means a use
of
state resources which is substantial
enough to result in a gain or advantage to the user
or
a loss to the
state for which a monetary value may
be
estimated.
Water Resources Sources Control Board is useful in determining whether a
change
has
occurred in the status quo. In that case, the Department
of
Water Resources adopted
an
incompatible activities policy that expanded an existing policy covering intemet/intranet use.
Rejecting the state's argument that the policy was a mere expression
of
its existing
incompatible activities policy, the Board found that the unilateral creation or alteration
of
an
incompatible activities policy breached the duty to negotiate in good faith. "Insofar as the
intemet/intranet policy constituted a departure from the terms
of
the WRCB's incompatible
activities policy, the imposition
of
the intemet/intranet policy violated the [duty to bargain]."
(Water Resources Control Board at p. 8.) The same reasoning applies here.
There is no evidence
of
a prior CSU policy that expressly addressed use
of computer
resources. As APC points out, the 1960 policy could not possibly be viewed as covering the
new policies to the extent they addressed use of computer resources, for such equipment did
26

not exist in 1960. Therefore, the argument that the 1960 policy set the status quo for use
of
computer resources is rejected.
Section 8314 sets general standards governing use
of
all CSU resources, but that
section would permit "incidental and minimal use" and use which is not "substantial enough to
result in a gain or advantage to the user or a loss to the state for which a monetary value
may
be estimated." The policies at issue here are more restrictive. The Fresno policy would
prohibit all use
of
computer resources for reasons not related to CSU-related activities.
For
example, the policy issued on March 24, 1999, provides that "computer facilities
....
are only
to be used for university-related activities." At another point, the policy provides that
"electronic communications facilities
....
are for university-related activities only."
Raymond's November 10, 2000, memo to employees states that "these resources are to be used
exclusively for the conduct
of
state business."
The Bakersfield policy, while not as restrictive as the Fresno policy, nevertheless does
not comport fully with section 8314. The policy prohibits "unauthorized use
of
a computer
account" and provides that even "minor infractions" violate the policy. Implicit in these
provisions is the prohibition against any unauthorized "incidental and minimal use"
of
computer resources for personal reasons, a use permitted by section 8314.
Therefore, I conclude that the computer resources policies adopted by the Fresno and
Bakersfield campuses are not in line with section 8314. Adoption
of
a new policy or
modification
of
an existing policy in areas which fall within the scope
of
representation is
unlawful. (See e.g., Water Resources Control Board at pp. 7-9.)
The same cannot be said about the Fresno telephone/fax machine policy. Unlike the
computer use policies, the telephone/fax machine policy is consistent with Government Code
section 8314. Section 8314 permits incidental use of telephones and fax machines, as does the
27

Fresno policy. More importantly, the telephone/fax machine policy is different that the
computer resources poiicies
in
a key respect. Unlike the comprehensive computer resources
policies at issue here, the telephone/fax machine policy is a short, one-half page statement that
does little more than reiterate the incidental use standard in section 8314, as far as telephones
are concerned. The policy is silent as to use
of
fax machines. As such, the policy does not
amount to the quantity and kind
of
change embodied in the computer resources policies. For
these reasons, I conclude that CSU has made no unilateral change in its telephone and fax
machine policy. This aspect
of
the complaint will be dismissed.
The next question is whether there has been a change in APC's access to e-mail as a
means
of
communication. The record is clear that APC regularly communicates with
employees at the Fresno and Bakersfield campuses through e-mail. Although the contested
policies purport to set new rules that apply to APC use
of
e-mail to communicate with
employees, the meaning
of
the policies and the testimonial evidence on this point is not so
clear.
Raymond testified that APC use
of
e-mail does not fall under the definition
of
random
mail and no restrictions have been placed on APC use
of
e-mail. She conceded, however, that
a "union message" is not "state business," the sole purpose for which computer resources may
be used. The logical inference is that the Fresno policy would prohibit APC from using e-mail
as a means
of
communicating with employees.
Garcia's testimony is equally unclear. Although she is aware that APC uses e-mail as a
means
of
communication, the Bakersfield campus has not monitored APC use
of
e-mail or
found it to be inappropriate. However, she testified that an APC representative may violate the
policy and be disciplined in certain circumstances. She said repeated mailings to a "mailing
list" directed to employees who had requested they not be included on the list could result in
28

discipline. Garcia's testimony clouds the precise meaning
of
the Bakersfield policy in this
regard and leaves APC in the dark about its right to use e-mail to communicate with
employees.
It is clear from the testimony given by Raymond and Garcia that the policies for the
first time set rules covering APC use e-mail as a means
of
communication. Whether APC's
mailings are viewed as beyond the scope
of
the permitted use under the Fresno policy
or
too
frequent or unwanted to comply with the Bakersfield policy, it cannot be disputed that the
policies define use
of
e-mail in a manner previously unknown to APC.
CSU next argues that no valid practice exists here because there is no evidence that its
representatives at Fresno and Bakersfield were aware
of
the practice described by APC
witnesses. Therefore, CSU contends, it cannot be held responsible for unilaterally changing
the practice under which APC communicated with employees via e-mail.
While it is true as a general rule that the charging party carries the burden
of
establishing the existence
of
the practice and employer knowledge (see e.g., State
of
California
(Department
of
Personnel Administration et al.), supra, PERB Decision No. 1279-S, adopting
proposed decision
of
administrative law judge at pp. 38-39), that rule does not dispose
of
the
instant dispute. Garcia testified that she is aware that APC has used e-mail to communicate
with employees at Bakersfield. However, even assuming CSU was unaware
of
APC's use
of
e-
mail, it is clear that the Fresno and Bakersfield policies implemented new rules governing
access via electronic means. These newly adopted policies impact the right to communicate
with employees through e-mail, a matter within the scope
of
representation, and CSU has
refused to negotiate about the policies. Under Water Resources Control Board, unilateral
adoption of a policy that contains new rules or rules that modify existing policies is unlawful.
29

In sum, the Fresno and Bakersfield computer resources policies contained changes in
matters that fall within the scope
of
representation. As broad statements
of
CSU policy, they
had a generalized impact on bargaining unit employees represented by APC, as well as
on
APC
itself. And CSU has refused to negotiate about the policies. Therefore, I find that APC has
met its burden
of
showing that CSU unlawfully adopted policies that relate to negotiable
subjects under HEERA.
Finally, CSU asserts as an affirmative defense that APC had actual notice
of
certain
aspects
of
the Fresno policy as it was being developed. CSU's claim rests on Garduque's
participation in Joint Labor Council meetings in early 1997 where the e-mail and telephone
policies allegedly were discussed.
PERB has long held that "actual knowledge" must "clearly inform" the charging party
of
the allegedly unlawful act. (Lucia Mar, adopting proposed decision
of
administrative law
judge at p. 23; Victor Valley Union High School District (1986) PERB Decision No. 565, p. 5
(Victor Valley).) The evidence here does not indicate that Garduque was clearly informed
of
the implementation
of
e-mail or telephone policies. The evidence indicates only that these
matters were placed on the agenda
of
the Joint Labor Council. But there is no evidence about
the discussion that took place at the meetings, nor is there evidence that a discussion about
these matters even took place. "[A]n agenda may suffice [for notice purposes]
if
it is delivered
to a proper official and is presented in a manner reasonably calculated to draw attention to any
item(s) reflecting a proposed change in a matter within the scope ofrepresentation." (Victor
Valley at p. 6, fn. 6; Marin Community College District (1995) PERB Decision No. 1092,
adopting proposed decision of administrative law judge at pp. 73-74.) However, that did not
occur here. Garduque was not a proper official to receive notice. He was a steward at the
Fresno campus, he was not a statewide officer, he was not on the negotiating team, and he had
30

no authority to accept notice on proposed changes in negotiable matters. His authority
extended only to representation in grievances and related matters. Moreover, Goetzel testified
without rebuttal that a longstanding practice existed under which APC required CSU and its
campuses to give official notice in writing to APC at its Oakland office. He said further that
APC received no notice
of
the Fresno policy at its Oakland office. Under these circumstances,
CSU's argument that APC had legal notice
of
the Fresno telephone and e-mail policies is
rejected.
REMEDY
The PERB in section 3563.3 is given
...
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including, but not limited to, the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
It
has been found that CSU unilaterally implemented computer resources policies at its
Fresno and Bakersfield campuses. By this conduct CSU breached its duty to negotiate in good
faith with APC, in violation
of
section 3571(c). By the same conduct, CSU interfered with the
right
of
employees to be represented by an employee organization
of
their choice, in violation
of
section 3571(a).
It
is appropriate therefore that CSU be ordered to cease and desist from
such activity and to rescind its computer resources policies on the Fresno and Bakersfield
campuses to the extent they apply to bargaining unit 4 employees. Any future attempts
by
CSU to implement computer resource use policies in bargaining unit 4 must be accompanied
by reasonable advance notice to APC and an opportunity to negotiate about the proposed
policies.
It
is also appropriate that CSU be required to post a notice incorporating the terms of
this order at the Fresno and Bakersfield campuses where notices to bargaining unit 4
31

employees are customarily posted. Posting of such a notice, signed by an authorized agent of
CSU, will inform employees that CSU has acted in an unlawful manner, is being required to
cease and desist from such activity, and will comply with the terms of the order. It effectuates
the purposes ofHEERA that employees be informed of the resolution of this controversy and
CSU's readiness to comply with the ordered remedy. (The Regents of the University of
California (1990) PERB Decision No. 826-H, p. 13; Trustees of the California State University
(1988) PERB Decision Order No. Ad-174-H.)
The allegation that CSU unlawfully adopted telephone and fax machine policies at its
Fresno campus is hereby dismissed.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (Act). CSU breached its duty to negotiate in
good faith with the Academic Professionals of California (APC) when it unilaterally
implemented computer resources policies at its Fresno and Bakersfield campuses. By this
conduct CSU breached its duty to negotiate in good faith with APC, in violation of
Government Code section 3571(c). By the same conduct, CSU interfered with the right of
employees to be represented by an employee organization of their choice, in violation of
Government Code section 3571(a).
Pursuant to Government Code section 3563.3, it is hereby ordered that CSU and its
representatives shall:
A. CEASE AND DESIST FROM:
1. Unilaterally implementing computer resources policies at the Fresno and
Bakersfield campuses to the extent they relate to bargaining unit 4.
32

2. Interfering with the rights of bargaining unit 4 employees to be represented
by an employee organization of their choice.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind the computer resources policies at the Fresno and Bakersfield
campuses to the extent they relate to bargaining unit 4.
2. Provide APC with reasonable notice and an opportunity to negotiate
about future attempts at the Fresno and Bakersfield campuses to implement computer resources
policies.
3. Within ten (10) workdays of service of a final decision in this matter,
post at all work locations on the Fresno and Bakersfield campuses where notices to bargaining
unit 4 employees are customarily posted, copies of the Notice attached hereto as an Appendix.
The Notice must be signed by an authorized agent of CSU, indicating that CSU will comply
with the terms of the Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
4. Upon issuance of final decision, make written notification of the actions
taken to comply with this order to the Sacramento Regional Director of the Public Employment
Relations Board in accordance with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
33

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
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.
(Cal. Code Regs., tit. 8, secs. 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
California Code
of
Regulations, title
8,
section 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. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
6-id J)cft
FRED 	D'ORAZIO 	¥
Administrative
	Law
	Judge
34

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ACADEMIC PROFESSIONALS OF
CALIFORNIA,

Charging Party, Case No. LA-CE-584-H

Vv. PERB Decision No. 1507-H

TRUSTEES OF THE CALIFORNIA STATE January 8, 2003

UNIVERSITY,

Respondent.

Appearances: Rothner, Segall & Greenstone by Glenn Rothner and Ricardo Ochoa, Attorneys,
for Academic Professionals of California; Janette Redd Williams, University Counsel, for
Trustees of the California State University.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions from the Academic Professionals of California (APC) and
Trustees of California State University (CSU) of an administrative law judge’s (ALJ) proposed
decision (attached). The charge alleged that CSU violated the Higher Education Employer-
Employee Relations Act (HEERA)' by unilaterally implementing computer usage policies at
both its Fresno and Bakersfield campuses and a telephone/facsimile usage policy at its Fresno
campus. The ALJ found that the computer usage policies constituted a violation of section

3571(a) and (c) but dismissed the charges regarding the telephone and facsimile machine usage

policy.

'HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Upon review of the entire record in this matter, including the proposed decision, and
the exceptions and responses to exceptions filed by both parties, the Board adopts the ALJ' s
factual and legal findings with respect to CSU's implementation of the computer usage
policies, in line with the discussion below, but reverses the ALJ's finding that the
telephone/facsimile policy did not violate HEERA.
DISCUSSION
The complaint in this matter involves allegations of unilateral change in violation of
HEERA section 3571(c). To prevail on a complaint of unilateral change, the charging party
must establish by a preponderance of the evidence that: (1) the employer implemented a
change in policy; (2) the action was taken without giving the exclusive representative notice or
an opportunity to bargain over the change; (3) the action is not mereiy an isoiated incident, but
amounts to a change of policy (i.e., having a generalized effect or continuing impact upon
bargaining unit members' terms and conditions of employment); and ( 4) the change in policy
concerns a matter within the scope of representation. (Walnut Valley Unified School District
(1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
1. CSU Computer Usage Policies
The threshold question here is whether the subject matter contained in the CSU Fresno
and Bakersfield policies falls within the scope ofrepresentation under HEERA.2 Whether
2HEERA section 3562 defines the scope ofrepresentation in the CSU system as
follows:
(r)(l) For purposes of the California State University only,
'scope ofrepresentation' means, and is limited to, wages, hours
of employment, and other terms and conditions of employment.
The scope· of representation shall not include:
2

Resources Control Board.) Furthermore, Government Code section 8314 does not prohibit
personal use
of
such equipment; rather, it states that use
of
state resources for personal
purposes is unlawful, but excludes occasional, incidental
or
minimal use
of
state resources for
personal purposes from its prohibition.4
4Government Code
section
8314 states, in pertinent part:
(a) It shall
be
unlawful for any elected state officer, appointee,
employee, or consultant, to use or permit others to use state
resources for a campaign activity, or personal or other purposes
which are not authorized
by
law.
(b) For purposes
of
this section:
(1) 'Personal purpose' means those activities the purpose
of
which is for personal enjoyment, private gain or advantage, or an
outside endeavor not related to state business. "Personal
purpose" does not include an occasional telenhone call.
or
an
incidental and minimal use
of
state resources, such as equipment
or office space, for personal purposes.
(3) 'State resources' means any state property
or
asset, including,
but not limited to, state land, buildings, facilities, funds,
equipment, supplies, telephones, computers, vehicles, travel, and
state compensated time.
(4) 'Use'means a use
of
state resources which is substantial
enough to result in a gain or advantage to the user or a loss to the
state for which a monetary value may be estimated.
(c )(1) Any person who intentionally or negligently violates this
section shall be liable for a civil penalty not to exceed one
thousand dollars ($1,000) for each day on which a violation
occurs, plus three times the value
of
the unlawful use
of
state
resources. The penalty shall be assessed and recovered in a civil
action brought in the name
of
the people
of
the State
of
California
by the Attorney General or by any district attorney or any city
attorney
of
a city having a population in excess
of
750,000.
If
two or more persons are responsible for any violation, they shall
be jointly and severally liable for the penalty.
5

forms and bases for discipline not included within section 89535, provided that the subject is
related to wages, hours or other negotiable terms and conditions
of
employment. For example,
the parties' MOU contains provisions pertaining to oral and/or written reprimand and
temporary suspension without pay for specified reasons, both items not included within section
89535. Obviously, the parties have negotiated MOU provisions concerning discipline, which
are not subsumed within section 89535.
Finally, contrary to
CSU's
assertion, a policy that unlawfully restricts union access
creates a corresponding interference with employee's representation rights under section
3571(a). (The Regents
of
the University
of
California, University
of
California at Los Angeles
Medical Center (1983) PERB Decision No. 329-H.) The Board thereby agrees with the
ALJ's
finding on this issue.
(a) Immoral conduct.
(b) Unprofessional conduct.
(c) Dishonesty.
(d) Incompetency.
(e) Addiction to the use
of
controlled substances.
(f) Failure or refusal to perform the normal and reasonable duties
of
the position.
(g) Conviction
of
a felony or conviction
of
any misdemeanor
involving moral turpitude.
(h) Fraud in securing appointment.
(i) Drunkenness on duty.
8

On June 1, 2000, Jeannine Raymond (Raymond), director of human resources for the
Fresno campus, forwarded to Purcell a policy covering use of CSU computer resources. The
written policy, dated June 1998 and implemented on or about March 24, 1999, is
comprehensive and need not be set forth in its entirety here.2 It contains, however, several
provisions that are relevant to the instant dispute. A partial list of these provisions is briefly
summarized immediately below.
The policy provides that computer resources are to be used only for CSU-related
activities. It also states that "violations of authorial integrity (concerning electronic
information), including plagiarism, invasion of privacy, unauthorized access, and trade secrets
and copyright violations, may be grounds for sanctions against members of the academic
community." The policy provides that "all students, faculty, administration, and staff are
responsible for seeing that these computing facilities are used in an effective, efficient, ethical
and lawful manner." Regarding "computer accounts," the policy states that "misuse of
accounts or violation of the delineated conditions may result in the termination of the accounts,
or, in cases of more serious infractions, the submission of the case to an appropriate
disciplinary authority for further investigation." In such cases, the policy continues,
"appropriate actions must follow the appropriate procedures (for example, the various
collective bargaining agreements govern appropriate actions involving faculty and staff
members and specifies specific procedures.)" The policy prohibits random mailings (also
known as "spam mail" or "spamming") to large numbers of employees. The policy sets out
several inappropriate uses of e-mail and recognizes the possibility of "internal monitoring ( of
2The document initially sent to Purcell was a draft policy that was never implemented.
The draft is irrelevant to the instant dispute and will not be considered here. This proposed
decision will address the policy that was eventually implemented.
4

e-mail messages)
by
an authorized individual." The policy concludes, "violations
of
this
policy will be handled through normal university procedures."
Asked
if
employees could be disciplined for abuse
of
e-mail facilities, Raymond
responded, "they could, I suppose." With respect to how the policy relates to employee
discipline in general, Raymond said employee conduct would be evaluated in light
of
the
policy to determine
if
corrective action is appropriate.
In addition, Raymond's transmission to Purcell included a separate policy covering use
of
telephones and fax machines. Raymond informed Purcell that the telephone/fax machine
policy was initially sent to administrators, deans and department heads "for distribution to their
employees" on June 5, 1997. In brief, the policy provides that such equipment is to
be used
only for "State business." It authorizes incidental use
of
telephones, noting that personal use
during the workday is to be kept at a minimum, long distance calls for personal reasons must
be billed to a personal calling card or identified immediately as a personal call, and
reimbursement must be provided to CSU. Use
of
fax machines is not specifically addressed.
The policy concludes, "employees found to be misusing State phones for personal purposes in
violation
of
this policy may be subject to appropriate personnel action."
Raymond pointed out to Purcell that both policies are found in the Manual
of
Administrative Policies and Procedures. She noted that the manual was originally distributed
to all departments in August 1999 and is available in the School
of
Education and the
Department
of
Human Development.
APC quickly adopted the position that it had not received formal notice that these
policies would be implemented. Accordingly, it filed this unfair practice charge on June 14,
2000.
5

On November 10, 2000, while the unfair practice charge was under investigation,
Raymond sent another memo to employees covering use
of
campus electronic mail (e-mail)
and computers. The purpose
of
the memo was to review existing policy. Once again, the
memo is a comprehensive statement
of
policy and need not be set forth in its entirety. In brief,
it reiterates that e-mail accounts and computer resources are to be used only for work related
matters. Among the uses expressly prohibited are the following: sharing
of
e-mail accounts or
passwords; accessing or downloading pornographic material; random mailings
of
"any
message
of
a commercial or political nature;" transmission
of
humor which may be construed
as offensive or harassment; and any activity that violates state or federal laws. Raymond's
memo concludes, "failure to adhere to the standards described in the campus policy will lead
to
an appropriate personnel action which may include an oral or written reprimand or a
disciplinary action pursuant to the appropriate collective bargaining agreement." Upon receipt
of
Raymond's November 2000 memo, APC amended the unfair practice complaint to include
additional changes to the Fresno policy contained therein.
Raymond testified that APC use
of
e-mail to communicate with employees would not
fall under the definition
of
"random mail," and the Fresno campus has placed no restrictions on
e-mail use by APC stewards or on APC itself. She testified, however, that she does not equate
"State business" with "union business." In this regard, she said the policy presents a "conflict"
between the right to distribute a union message and the prohibition against using the policy for
other than state business. "Union messages" are not "state business," Raymond testified.
Raymond also said that no employee has been disciplined based on a violation
of
the
Fresno policies. According to Raymond, employees ordinarily are disciplined for actions that
violate statutory standards set forth in the Education Code, not for violations of the policy
6

are subject to negotiations both as to the criteria for discipline and
as
to procedure to be
followed.;; (San Bernardino City Unified School District (1982) PERB Decision No. 255 at
p.
11
(San Bernardino).) In a more recent decision covering subject matter akin to the policies
under review here, PERB held that an expansion or modification
of
an incompatible activities
statement covering use
of
internet/intranet facilities is within the scope
of
representation under
the Ralph
C.
Dills Act (Dills Act).4 (State
of
California (Water Resources Control Board)
(1999) PERB Decision No. 1337-S, pp. 7-8 (Water Resources Control Board).) Therefore, I
find that the Fresno and Bakersfield computer use policies are negotiable to the extent they
relate to discipline.
In addition, the Fresno and Bakersfield policies relate to APC's practice
of
communicating with employees through e-mail. Subject to reasonable regulation, employee
organizations under HEERA have the right
of
access to "institutional
....
means
of
communication" and "institutional facilities" to communicate with employees. (Sec. 3568.)
Although it is clear that this right does not extend to every type
of
communication in existence
at CSU (The Regents
of
the University
of
California v. Public Employment Relations Board
(1986) 177 Cal.App.3d 648, 654 [223 Cal.Rptr. 127]), it is equally clear that computer
resources, telephones and fax machines constitute reasonable means
of
access in a large
academic institution. PERB has long held that reasonable access rights are negotiable. (State
of California (Department
of
Personnel Administration, et al.) (1998) PERB Decision
No. 1279-S, adopting proposed decision of administrative law judge at p. 38; see also
California State University, Sacramento (1982) PERB Decision No. 211-H, pp. 27-32 [CSU
4The Dills Act is codified at section 3512 et seq. The scope ofrepresentation under the
Dills Act is parallel to that in HEERA. Section 3516 states: "The scope of representation shall
be limited to wages, hours, and other terms and conditions of employment, except, however,
13

(h) Fraud in securing employment.
(i) Drunkenness on duty.
HEERA Section 3572.5 provides that where certain enumerated provisions oflaw conflict with
an MOU, the MOU shall be controlling. Education Code section 89535 is not among the
provisions listed in section 3572.5.
I also recognize that the parties' MOU includes a comprehensive article on discipline
and other "corrective action." Under Article 12, section 12.12, disciplinary action includes
only "dismissal, demotion or suspension without pay." The definition of "disciplinary action"
under the agreement does not include an oral or written reprimand, although such corrective
action is permitted in section 12.1. Also, the MOU permits "temporary suspension with pay"
for reasons related to "(a) the safety of persons or property, or (b) the prevention of the
disruption of programs or operations, or (c) investigation of allegations which may lead to a
notice of disciplinary action."
CSU asserts that any disciplinary action must fall within one of the specified statutory
causes in Education Code section 89535, the MOU comports with the criteria for discipline set
out in Education Code section 89535, and the contested policies provide that violations are to
be processed in accordance with existing CSU procedures and collective bargaining
agreements. If an employee sexually harassed another employee using e-mail, CSU continues,
the employee would be charged with unprofessional conduct under Education Code section
89535, subsection (b), not with a violation of the Fresno computer use policy. Therefore, CSU
concludes, the contested policies evidence no change in a negotiable matter.
It may be true that discipline generally is covered by the parties' MOU, and the MOU
does not conflict with the specific provisions in Education Code section 89535. What CSU
overlooks, however, is that the policies for the first time enumerated multiple uses of computer
15

computer privileges or modification
of
such privileges. Several examples
of
"more serious
vioiations" are set forth in the policy, but the policy does not indicate how many infractions
must occur before an employee is considered to be a repeat offender. The same section
provides that "offenders may be referred to their sponsoring advisor, department, employer, or
other appropriate university office for further action." Further, the policy contains a long list
of
actions that would violate the policy. These range from violating software licensing
agreements to transmitting slanderous or defamatory material to initiating chain letters to mass
mailing or spamming. Thus, the policy relates to criteria for discipline, a matter within the
scope
of
representation.
The Bakersfield policy also provides that system administrators and other CSU
employees have the "right to access user files when necessary to protect the integrity
of
computer systems or the rights or property
of
the University." Like the Fresno policy, this
provision creates obvious employee and APC concerns about privacy rights that could
be
addressed at the bargaining table without infringing on basic managerial rights.
The policy provides that "misuse"
of
computer resources may result in the loss
of
access to such resources. This too might reasonably create employee and APC concerns about
the conditions under which an employee could lose the right
of
access to resources that are
essential for employee performance, or have an effect on evaluations that are based on
performance. As noted above, these are matters that have traditionally been subjects
of
negotiations.
The Bakersfield policy provides that "when accessing remote resources from CSUB
facilities, users are responsible for obeying both the policies set forth in this document and the
policies of other organizations." APC may be concerned about whether employees are aware
of policies set by "other organizations" and propose that employees, at minimum, receive
22

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
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.
(Cal. Code Regs., tit. 8, secs. 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
California Code
of
Regulations, title
8,
section 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. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
6-id J)cft
FRED D'ORAZIO ¥
Administrative
Law
Judge
34

Trustees of the California State University (PERB 1507H)

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