Trustees of the California State University (PERB 1656H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-721-H
PERB Decision No.
	1656-H
July
	8,
	2004
Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for Academic
Professionals
of
California; Marlene B. Jones, University Counsel, for the Trustees
of
the
California State University.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NE!MA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Academic Professionals
of
California (APC)
of
a Board agent's
dismissal (attached)
of
its unfair practice charge. The charge alleged that the Trustees
of
the
California State University (CSU) violated the Higher Education Employer-Employee
Relations Act (HEERA)1 by unilaterally implementing a non-discrimination policy for
students.
The Board has reviewed the entire record in this matter including the unfair practice
charge, the warning and dismissal letters, APC's appeal and CSU's response.2 The Board
1HEERA is codified at Government Code section 3560, et seq.
2Pursuant to PERB Regulation 32136, the Board finds that good cause exists to excuse
CSU's late-filed response. 	(PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001,
et seq.)

finds the warning and dismissal letters to be free
of
prejudicial error and adopts them as the
decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-721-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
July 16, 2003
Lee
0.
Norris, LR Representative
Academic Professionals
of
California
8726-D
S.
Sepulveda Blvd.,
#Cl
72
Los Angeles, CA 90045
Re: 	Academic Professionals
of
California
v.
Trustees
of
the California State University
Unfair Practice Charge No. LA-CE-721-H
DISMISSAL LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 6, 2002. The Academic Professionals
of
California
alleges that the Trustees
of
the California State University violated the Higher Education
Employer-Employee Relations Act (HEERA)1 by unilaterally implementing a non-
discrimination policy for students.
I indicated to you in my attached letter dated June 23, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to June 30, 2003, the charge would be dismissed. 	I later
extended this deadline to July 11, 2003.
On July 16, 2003, Charging Party left a telephone message indicating it would not be filing an
amended charge. As I have not received either an amended charge or a request for withdrawal,
I am dismissing the charge based on the facts and reasons contained in my June 23, 2003,
letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-721-H
July 16, 2003
Page2
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 3i635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)

LA-CE-721-H
July 16, 2003
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Kristin L. Rosi
Regional Attorney
kdrz__
Attachment
cc: Marlene Jones

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
June 23, 2003
Lee
0.
Norris, LR Representative
Academic Professionals
of
California
8726-D
S.
Sepulveda Blvd.,
#Cl
72
Los Angeles, CA 90045
Re: 	Academic Professionals
of
California
v.
Trustees
of
the California State University
Unfair Practice Charge No. LA-CE-721-H
WARNING LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 6, 2002. The Academic Professionals
of
California
alleges that the Trustees
of
the California State University violated the Higher Education
Employer-Employee Relations Act (HEERA)1
by unilaterally implementing a non-
discrimination policy for students.
Investigation
of
the charge revealed the following. APC and CSU are parties to a collective
bargaining agreement that expires on June 30, 2003. With regard to the effect
of
the agreement
("zipper clause"), Article 3 .2
states in relevant part:
Except as provided for in this Agreement, the Employer and the
Union, for the life
of
this Agreement, voluntarily and
unqualifiedly waive the right, and each agrees that the other shall
not be obligated, to bargain collectively with respect to any
subject or matter referred to or covered by this Agreement, or
with respect to any subject or matter not specifically referred to
or covered in this Agreement, even though such subjects or
matters may not have been within the knowledge
of
or
contemplation
of
either or both
of
the parties at the time that they
negotiated or signed this Agreement.
Article 12
of
the Agreement contains a detailed discipline procedure which applies to all
discipline contemplated by CSU.
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-721-H
June 23, 2003
Page2
(
In 2001, the Office of Civil Rights (OCR) informed Humboldt State University that its
September 2000 procedures for processing discrimination complaints needed revision.2 HSU
consulted with OCR regarding the revisions, and OCR approved a draft in September.
On September 30, 2002, CSU sent a copy of the revised Humboldt State University
Nondiscrimination Policy, together with HSU Procedures for Processing Discrimination
Complaints to all exclusive representatives, including APC. The University stated its belief
that the policy did not impact any matters within the scope of representation, but agreed to
meet and confer if any organization wished to discuss the policy. The Discrimination Policy
governs student complaints of unlawful discrimination and complaints by some unrepresented
employees. 3 The Policy states in relevant part:
I. Purpose: The purpose of these procedures is to provide an
opportunity to resolve matters alleging discrimination to students
and to employees who are not covered by collective bargaining
agreements or California State University system-wide
procedures for processing complaints of discrimination ....
II. Jurisdiction: Complaints by employees who are covered by
collective bargaining agreements or system-wide procedures shall
be processed in accordance with the applicable collective
bargaining agreement or system-wide procedures ....
V.O. Corrective Action: If the Appropriate Administrator or
Designee finds "Cause" , s/he shall also issue a separate
recommendation regarding corrective actions. This may include
individual remedies for the Complainant or a range of formal or
informal disciplinary measures or other personnel actions. If it is
determined that disciplinary charges should be initiated,
disciplinary proceedings shall be conducted in accordance with
the current applicable collective bargaining agreement, or for
charges against administrators or other non-represented
employees, appropriate University policies shall be utilized.
(emphasis added.)
On October 22, 2002, APC replied to the University letter and Discrimination Policy by stating
that it believed the topic to be within the scope of representation. Additionally, instead of
2 This directive arose in conjunction with the resolution of a complaint by a HSU
student. Many CSU campuses, pursuant to federal law and enforced by OCR, have policies that
protect students from unlawful discrimination and provide procedures for processing their
complaints.
3 APC's agreement does not contain provisions regarding discrimination against or the
filing of complaints by students or employees not covered by an agreement. There are few, if
any, non-represented employees.

LA-CE-721-H
June 23, 2003
Page 3
(
requesting to bargain the decision and/or effects
of
the Policy, APC stated that it could
not
be
required to discuss the
new
Policy because the MOU contained the zipper clause quoted above.
None
of
the other exclusive representatives objected to the policy or requested negotiations.
On November 15, 2002, CSU again informed APC that the Discrimination Policy needed to be
put in place and that the University was willing to meet and confer over the impact
of
the
policy. The letter also addressed APC's argument that negotiations were barred by the zipper
clause in Article 3. Finally, CSU stated that it wished to implement the policy in December
and gave APC until January 6, 2003, to request a meet and confer session.
APC did not request to meet and confer over the decision and/or impact
of
the Discrimination
Policy.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation
of
the HEERA, for the reasons provided below.
In determining whether a party has violated HEERA section 357l(c), PERB utilizes either the
"per se" or "totality
of
the conduct" test, depending on the specific conduct involved and the
effect
of
such conduct
on
the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope
of
representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
I. Scope
of
Representation
APC contends the CSU violated the HEERA when it unilaterally adopted the Discrimination
Policy. However, the charge fails to demonstrate the first prong
of
the test for unilateral
change; that the decision to adopt the policy is within the scope
of
representation. It is
undisputed that policies that protect employees from unlawful discrimination are within the
scope ofrepresentation. (See, Jefferson School District (1980) PERB Decision No. 133; San
Mateo City School District (1984) PERB Decision No. 375.) However, this policy does not
serve to protect employees from discrimination, but seeks to protect student and unrepresented
employees. As such, the above cited cases are inapplicable.
This case is more appropriately analyzed under Compton Community College District (1990)
PERB Decision No. 798, which addresses public and student complaints against bargaining
unit members. In Compton, the district unilaterally adopted a student grievance policy that
allowed students to file complaints against certificated employees. The outcome
of
these
complaints were placed in the employees' personnel file. In finding that the complaint
procedure was within the scope of representation "because it sets up a procedure whereby an
employee's performance is a particular situation is evaluated" the Board further held:

LA-CE~ 721-H
June 23, 2003
Page4
That we based this finding on the policy's requirement that
student complaints and/or administrative determinations resulting
from student complaints are placed in the personnel file of the
employee charged. (Id. at 3.)
As such, in order for the Discrimination Policy to be a negotiable subject under Compton, the
initial complaint and/or administrative determination must be placed in the employee's
personnel file. Without such action, it cannot be said that an employee's performance will be
evaluated. A review of the Discrimination Policy indicates that the complaint and corrective
action plan remain confidential. There is no mention of such complaints being placed in the
personnel file. Moreover, Article 11 of the MOU contains a detailed provision regarding the
placement of materials in an employee's personnel file. 	Therefore, under the Compton
analysis, the student policy fails to state a prima facie violation of the HEERA.
Although not raised by APC, the union could also argue that because the student
discrimination policy could result in discipline to a bargaining unit member, the policy is a
negotiable subject. It is again undisputed that disciplinary procedures and policies are within
the scope of negotiation. (Arvin Union School District (1983) PERB Decision No. 300.)
Indeed, the parties have already negotiated a comprehensive progressive discipline policy that
governs actions from written and oral reprimands, to suspension and dismissal. (Article 12 of
the MOU.)
Herein, the CSU adopted a policy for investigating student complaints of unlawful
discrimination. CSU's adoption of this policy was federally mandated and is not directly or
indirectly related to any economic activity by either party. The policy is merely a recitation of
both California and Federal anti-discrimination law. Moreover, the state and federal statutes
are not pre-empted by the HEERA, as such statutes provide "protections to individual union
and nonunion workers alike, and neither encourage or discourage the collective bargaining
process." (Fort Halifax Packing Company v. Coyne (1987) 482 U.S. 1, 21 (state statute
requiring severance pay is not pre-empted by NLRA as it does not interfere with bargaining
process).)
While the adoption of a federally mandated policy may not be negotiable, the impact of the
procedure may be negotiable. However, the charge fails to present any negotiable disciplinary
impact.4 The Discrimination Policy states any and all discipline arising from the policy will
follow contractual guidelines. Moreover, the policy does not subject employees to a new work
rule, as discriminatory conduct has arguably been considered unlawful and unprofessional
under Education Code 89535 which pertains to CSU employees.5 As such, the adoption of the
Discrimination Policy does not violate the HEERA.
4 APC contends the contractual zipper clause prohibits CSU from implementing the
new policy. However, as noted above, there is no duty to bargain the decision to implement
the policy, and as such the zipper clause is inapplicable.
5 Any permanent or probationary employee may be dismissed, demoted, or suspended
for the following causes: ( a) Immoral conduct. (b) Unprofessional conduct. (c) Dishonesty. ( d)

LA-CE-721-H
June 23, 2003
Page 5
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter
or
additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. The amended charge must be served
on
the respondent's
representative and the original
proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before June 30, 2003, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
/h/2
Kristin L. Rosi
Regional Attorney
KLR
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.