Trustees of the California State University (Stanislaus) (PERB 1705H)

STATF. OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMF.NT RF.LATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
v.
TRUSTEES OF TIIE CALIFORNIA STATE
UNIVERSITY (STANISLAUS),
Respondent._	--------'----------~- ___
Case Nu. LA-CE-797-I-I
PERB Decision No. 	1705-H
November 	9, 	2004
A:Jmcaranccs: Rothncr, Segall & Grccnstonc by Bernhard Rohrbacher, Attorney, for Academic
Professionals of California; California State University, Office of the General Counsel by
Karen Carr, Attorney, for Trustees of the California State University (Stanislaus).
Befr)re Duncan, Chairman; Whitehead an<l Neima, Members.
DECISION
DUNCAN, Chainnan: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Academic Professionals of California (APC) of a Board agent's
partial dismissal (attached) of APC's unfair practice charge. The charge alleged that the
Trustees of the California State University (Stanislaus) (CSU) violated the Higher Education
Employer-Employee Relations Act (HEERA) 1 by unilaterally implementing a computer
network use policy and a disciplinary policy at the Stanislaus campus. APC alleged that this
conduct constituted a violation ofHEERA section 3571(a), (b) and (c). The Board agent
issued a complaint covering the computer network use policy and telephone policy. The rest of
the case, relating to an alleged new disciplinary policy, was dismissed by the Board agent.
lIEERA is codified at Government Code section 3560, et seq. Unless otherwise
indicated, all statutory references herein arc to the Government Code.

After review of the entire record in this case, including the unfair practice charge, the
amended unfair practice charge, CSU's response, the warning and dismissal letters, APC's
appeal and CSlJ's response, the Board adopts the warning and dismissal letters as the decision
of the Board itself, upholding the partial dismissal, subject to the discussion below.
BACKGROUND
On October 16, 2003, CSU Stanislaus President Marvalene Hughes (Hughes) sent an
e-mail which stated, in pertinent part:
As a CSU Stanislaus employee, please remember that state law
(Government Code section 8314) prohibits the use of state
resources for political campaign activity or any other personal
purposes not authorized by [state] law.
Violations of any of the above prohibitions carry strict penalties,
especially Title II of the Government Code (i.e., the use of public
resources by state employees for political campaign activities).
On October 17, 2003, a second e-mail was sent by Hughes to supersede the one sent
October 16. That e-mail stated, in pertinent part;
STATE LAW RESTRICTS THE USE OF STATE RESOURCES
FOR PERSONAL PURPOSES, CAMPAIGN ACTIVITY AND
OTHER PURPOSES WI-I!Cl-1 ARE NOT AUTHORIZED BY
LAW,,,,
PERSONAL USAGE OF STATE RESOURCES AND
CAMPAIGN ACTIVITY THAT ARE NOT MINIMAL OR
INCIDENTAL ARE PROHIBITED, 	[FOR EXAMPLE, AN
OCCASIONAL LOCAL TELEPIJONE CALL IS NOT
PRO! IIBITED,]
VIOLATIONS OF TI IIS LAW OR APPLICABLE POLICY
WILL BE REPORTED AND DEALT WITH BY TI-IE
APPROPRIATE DISCIPLINARY BODY, WI-IICI-1 IN TI-IE
CASE OF EMPLOYEES, SIIALL BE HANDLED IN
ACCORDANCE WITH THE COLLECTIVE BARGAINING
AGREEMENT, CSU STANISLAUS POLICY AND
APPLICABLE LAW, 	[Emphasis in original.]
2

The Board agent found that APC failed to state a pri,m:1 facic case of unilateral change.
It was the position of the Board agent that the e-mail merely notifies employees that violations
of the Government Code may be reported and that any resulting discipline would be addressed
in accordance with the existing collective bargaining agreement (CBA) and the CSU policy
already in place.
DISCUSSION
Under existing PERB precedent, it is clear that the implementation of a new rule of
conduct is negotiable. (San Bernardino City Unified School District (l 982) PERB Decision
No. 255 (San Bernardino).) However, we do not believe that has occurred in this case.
The language relied upon by APC in San Bernardino states the following:
Disciplinary action, particularly termination, may have a direct
impact on wages, health and welfare benefits, and other
enumerated terms and conditions of employment since such
action may reduce or eliminate entitlement to those enumerated
items. Thus, rules of conduct which subject employees to
disciplinary action are subject to negotiation both as to criteria for
discipline and as to procedure to be followed. 	The unilateral
adoption of such rules therefore violates the employer's duty to
notify the exclusive representative and provide it with an
opportunity to negotiate ....
In footnote 5, the Board noted that San Bernardino arose prior to the addition of
Educational Employment Relations Act (EERA)2 section 3543.2(b), which states:
(b) Notwithstanding Section 44944 of the Education Code, the
public school employer and the exclusive representative shall,
upon request of either party, meet and negotiate regarding causes
and procedures for disciplinary action, other than dismissal,
including suspension of pay for up to l 5 days, affecting
certificated employees. If the public school employer and the
exclusive representative do not reach mutual agreement, then the
provisions of Section 44944 of the Education Code shall apply.
2:EliRA is codified at section 3540, ct seq.
3

Thus, the amendment of EERA after San Bernardino Hrose makes it clear that the
causes of discipline arc negotiable. In contrast, HEERA 's statutory scope of representation
docs not expressly include the causes of discipline. (HEERA sec. 3562 (r).) further, with
respect to CSU, the causes of discipline arc set forth by statute. 	Specifically, Education Code
section 89535 governing CSU, states:
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 of any misdemeanor
involving moral turpitude.
(h) 	Fraud in securing appointment.
(i) 	Drunkenness on duty.
As the Legislature has already decided the causes of discipline for CSU employees, we
believe the holding in San Bernardino is inapposite. Where the Legislature has already set
forth causes of discipline the topic is not within the mandatory scope of representation.
CSU has merely informed employees of the existence of this section and its
applicability to employees' use of state resources. CSU has not implemented a new rule of
conduct. CSU has notified employees that section 8314 may subject them to discipline under
the CBA. The CBA in turn specifically references the Education Code statutes governing
discipline. Whether discipline can be sustained against an employee for violating section 8314
depends on whether CSU can prove one of the enumerated reasons listed, supra.
4

ORDER
The partial dismissal of the unfair practice charge in Case No. LA-CI-<>797-B is hereby
AFFIRMED.
Member Neima's concurrence begins on page 6.
Member Whitehead's dissent begins on page 7.
5

NEIMA, Member, concurring: 	I agree with the lead opinion that a new rule of conduct
has not been implemented in this case. 	Instead, as J read the unfair practice charge, the
California State University (CSU) has merely informed employees of the existence of
Government Code section 8314 and its applicability to employees' use of state resources.
Thus, I would adopt the Public Employment Relations Board agent's dismissal letter finding
that there has been no change in policy by CSU. As I find that there was no change in policy,
it is not necessary to address whether the alleged change was within the scope of
representation, and therefore I do not join in that portion of the lead opinion.
6

WHITEHEAD, Member, dissenting: I respectfully dissent for the reasons that follow.
BACKGROUND
On October 18, 2003, Academic Professionals of CalifiJrnia {APC) Business Manager,
Edward Purcell received a copy ofan e-mail sent by Trustees of the California State University
(Stanislaus) (CSU) President Marvalcnc Hughes (Hughes) on October 16, 2003. The e-mail
stated, in pertinent part, that:
Re: Appropriate Use of University Computers and State Property
As a CSU Stanislaus employee, ~lease remember that state law
11(Government Code section 8314 	) prohibits the use of state
Government Code section 8314 provides:
(a) It is unlawful for any elected state or local officer, including
any state or local appointee, employee, or consultant, to use or
permit others to use public resources for a campaign activity, or
personal or other purposes which arc not authorized by law.
(b) For purposes of this section:
(1) 'Persona{ 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 the incidental and minimal use of public
resources, such as equipment or office space, for personal
purposes, including an occasional telephone call.
(2) 'Campaign activity' means an activity constituting a
contribution as defined in Section 82015 or an expenditure as
defined in Section 82025. 	'Campaign activity' docs not include
the incidental and minimal use of public resources, such as
equipment or office space, for campaign purposes, including the
referral of unsolicited political mail, telephone calls, and visitors
to private political entities.
(3) 'Public resources' means any property or asset owned by the
state or any local agency, including, but not limited to, land,
buildings, facilities, funds, equipm.ent, supplies, telephones,
computers, vehicles, travel, and state-compensated time,
7

resources for political campaign activity or any other personal
purposes not authorized by law. State resources include vehicles
-------------
(4) 'Use' means a use of public resources which is substantial
enough to result in a gain or advantage to the user or a loss to the
state or any local agency for which a monetary value may be
estimated.
(e) (1) Any per:,;on who intentionally or negligently violates this
section is liable for a civil penalty not to exceed one thousand
dollars ($1,000) for each day on which a violation occurs, plus
three limes the value of the unlawful use of public 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
ofa city having a population in excess of750,000. If two or
more persons are responsible for any violation, they shall be
jointly and severally liable for the penalty.
(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.
lf the action is brought by a city attorney, the moneys rernvered
shall be paid to the treasurer of that city.
(3) No civil action alleging a violation of this section may be
commenced more than four years after the date the alleged
violation occurred.
( d) Nothing in this section shall prohibit the use of public
resources for providing information to the public about the
possible effects of any bond issue or other ballot measure on state
activities, operations, or policies, provided that (I) the
informational activities are otherwise authorized by the
constitution or laws of this state, and (2) the information provided
constitutes a fair and impartial presentation of relevant facts to
ai<l the electorate in reaching an informed judgment regarding the
bond issue or ballot measure.
(e) The incidental and minimal use of public resources by an
elected state or local officer, including any state or local
appointee, employee, or consultant, pursuant to this section shall
not be subject to prosecution under Section 424 of the Penal
Code.
8

office supplies, co1nputcrs, telephones, r:ax (sic) 1nachines, and
siinilar equipn1ent owned by the State.
Violatio11s of any of the above prohibitions carry strict penalties,
especially critic II of the Govcrntncnt Code (i.e., the use of public
resources by state cn1ployees for political campaign activities.)
(Emphasis added.)
On October 17, 2003, l-!ughcs issued another c mail, \vhich stated, in pertinent part:
THE FOLLOWING BOTH CLARIFIES AND
SUPERSEDES THE PREVIOUS E-MAIL SENT
REGARDING THE 'APPROPRIATE USE o•·
UNIV•:RSITY COMPUTERS AND STATE PROPERTY.'
STATE LAW RESTRICTS THE lJSE OF STATE RESOURCES
FOR PERSONAL PURPOSES, CAMPAIGN ACTIVITY AND
ANY OTllER PURPOSES WHICH ARE NOT AUTHORIZED
BYLAW.
STATE RESOURCES INCLUDE VEHICLES SUPP_\,IES,
OFFICE SPACE COMPUTERS TELEPHONES AND OTIJER
EQUIPMENT OWNED BY TllE STATE.
PERSONAL USAGE OF STATE RESOURCES AND
CAMPAIGN ACTIVITY TllAT ARE NOT k!IN!MAL OR
INCIDENTAL ARE PROHIBITED. 	[FOR EXAMPLE, AN
OCCASIONAL LOCAL TELEPHONE CALL IS NOT
PROl llBITE!J.]
VIOLATIONS OF Tl llS LAW OR APPLICABLE POLICY
WILL BE REPORTED AND DEALT WITH HY THE
APPROPRIATE DISCIPLJNAR Y BODY, WHICH JN THE
CASE OF EMPLOYEES, SHALL BE HANDLED IN
ACCORDANCE WIT! I THE COLLECTIVE BARGAINING
AGREEMENT, CSU STANISLAUS POLICY AND
APPLICABLE LAW.
AS INDIVIDUALS WORKING AND/OR STUDYING AT AN
INS71TU710N OF IIIGIIER LEARNING, SOUND AND
REASONABLE JUDGMENT SHUUUJ Bli EXERCISED WI/EN
DETIORMIN!NG WI/ETHER USE OF STATE RKWJURCES IS
AJJf>R(J/lR/AJ'l:.,'. 	(J:< n1phasis in original, except for tLnderli11e.)
9

10
The underlined portions of the e-mails provide a definition of"state resources" that
expands upon or confuses the limited definition in Government Code section 8314. APC
alleges that the above institutes a new disciplinary policy because bargaining unit employees
may now be disciplined for violating the Government Code. APC claims that this policy was
previously unknown to APC. APC explains that Hughes' October 17 e-mail docs not merely
recite the Government Code because under section 8314, only the State Attorney General, or
the District Attorney of a county may bring civil action against persons found in violation of
the law. Nothing in section 8314 permits the University to handle alleged violations of the
statute by its employees with "the appropriate disciplinary body ... in accordance with the
collective bargaining agreement (CilA), CSU Stanislaus policy, and applicable law."
Therefore, APC concludes, CSU has unilaterally assumed the right to discipline employees for
violation of section 8314,
The Public Employment Relations Board (PERB or Board) agent dismissed this
allegation reasoning that the policy merely notifies employees that violations of the
Government Code may be reported and that any resulting discipline would be handled in
accordance with the existing CBA and CSU policy.
DISCUSSION
In adopting the partial dismissal, the majority has held only that CSU has not
unilaterally changed the illQ_Ccss. for discipline; but the majority does not address whether CSU
has unilaterally changed the criteria for discipline.
As a preliminary matter, APC argues that"the criteria for discipline found in the e-mail
policy falls within the scope of representation. On the other hand, CSU contends that the

policy stated within the e-mails is not within scope. Based upon Board precedent, I agree with
APC and find the October 17 e-mail containing criteria for discipline to be negotiable.
In San Bernardino City Unified School District (1982) PERB Decision No. 255
(San Bernardino I), the Board held that causes of discipline as well as procedures for discipline
are negotiable items. 	Significantly, the Board made this finding despite the fact that soon after
the issuance of San Bernardino I, Educational Employment Relations Act (EERA)2 section
3543.2 was amended to expressly include causes of discipline within the scope of
representation. (EERA sec. 3543.2(b).) In fact, in Monrovia Unified School District (1984)
PERB Decision No. 460 (Monrov.ill), the Board held that this amendment to Section 3543.2(b)
did not suggest that the subject was previously outside of scope. Quoting Arvin Union School
District (1983) PERB Decision No. 300, the Monrovia Board affirmed that:
'The addition of a new enumerated subject to the scope section
docsn 't mean such a subject was not previously related to an
enumerated item. The change in the law means that the
negotiability of specific procedures for disciplinary action arising
after January I, I 982 no longer need be analyzed in terms of the
Anaheim balancing test.'
(Emphasis in text.)3
To my knowledge, the Board has never held that because a statute defines causes of
discipline, that other causes of discipline or variations of the specified causes are not
1EERA is codified at Government Code section 3540, ct seq. Unless otherwise
indicated, all statutory references herein arc to the Government Code.
3In United Steelworkers of America. Local 8599. AFL~CIO v. Board of Education of
the Fontana Unified School District (1984) 162 Cal.App.3d 823, 831 [209 Cal.Rptr. 16], the
court noted that the San Bernardino I cause of action arose before the 1981 amendment to
EERA section 3543.2, which included causes and procedures for disciplinary action of
certificated employees as a negotiable issue. It found that nevertheless, the Board's reasoning,
based on the Anaheim test (Anaheim Union Iligh School District (1981) PERR Decision
No, 177), was good law to the extent it was not inconsistent with EERA or the Education
Code.
11

negotiable.'' On the contrary, over the years, the Board has attempted to expand those causes
that are subject to negotiation using the Education Code provisions to be a baseline for
negotiations under EERA and Higher Education Employer-Employee Relations Act
(I IEERA). 5 As stated by the Board in Trustees of the California State Universi!Y (2003) PERB
Decision No. 1507-H (Trustees):
[A]s correctly stated by the ALJ, the absence of Education Code
section 89535 from J JEER.A section 3572.5 docs not preclude the
parties from negotiating 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
cmploymcnt.6
Unlike EERA section 3543.2, HEER.A section 3562(r) does not list items within scope;
rather, it serves to exclude specific items. Discipline is not one of the excluded items. 	In fact,
under that provision, "scope of representation" is specifically defined as items limited to
"wages, hours of employment, and other terms and conditions of employment." Thus, the
definition of scope in HEERA is more expansive than that of EERA, which specifically defines
terms and conditions of employment.
Appellate courts have held that items covered by the Education Code continue to be
negotiable unless the proposed contractual provisions would supplant or nullify the pertinent
provisions of the Education Code. 	In San Mateo, the school districts argued that the language
The California Supreme Court in San Mateo City School Dist. v. Public Employment
.Relations Board ( 1983) 33 CaL3d 850 [ 191 Cal.Rptr. 800] (San Mateo) rejected the notion that
the scope of negotiations is strictly limited to items enumerated in EERA and expressly
disavowed the district's contention to that effect. 	(See San Mateo, at pp. 862-863, 866.)
5IIEERA is codified at Government Code section 3560, et seq.
61n Trustees, the parties had negotiated provisions for discipline based on specified
causes. Some of these causes were not among the enumerated bases for discipline in
Education Code section 89535.
12

in EERA section 3540 pertaining to the relationship between EERA and the Education Code
evidenced a Legislative intent to narrowly restrict the scope of representation. The Board, on
the other hand, had interpreted this language to prohibit negotiations only where the provisions
of the Education Code would be "replaced, set aside or annulled by the language of the
proposed contract clause." (Id., at p. 864.) In San Mateo, at pp. 864~865, the California
Supreme Court enunciated the standard for negotiability in these circumstances:
In the words of board member Moore, 'Unless the statutory
language [of the Education Codcj clearly evidences an intent to
set an inflexible standard or insure immutable provisions, the
negotiability of a proposal should not be precluded.'
PERB's interpretation reasonably construes the particular
language of section 3540 in harmony with the evident legislative
intent of the EERA and with existing sections of the Education
Code. This, rather than the preemption theory offered by the
Healdsburg Districts, is the correct approach when several
provisions of state law address a similar subject. (Industrial
Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 723 [166
Cal.Rptr. 331,613 P.2<l 579]; Certificated Employees Council v.
Monterey Peninsula Unified Sch. Dist. (1974) 42 Cal.App.3d 328
ll 16 Cal.Rptr. 819].) It is consistent with the fact that the EERA
explicitly includes matters such as leave, transfer and
reassignment policies within the scope of representation, even
though such matters are abo regulated by Education Code. 	(Sec,
Ed. Code§ 44963 ct seq. [pertaining to certificated employees.I
and§ 45105 et seq. [pertaining to classified employees].)
(Emphasis added.)
The court thus approved of the Board's interpretation of the supersession language in
FERA section 3540:
PERB's approach is consistent with judicial interpretations of
substantially similar language which appeared in the Winton
Act.6 In Certificated Employees Council v. Monterey Peninsula
Unified Sch. Dist., supra, 42 Cal.App.3d 328, the Court of
Appeal held it permissible for a school district to meet and confer
on matter such as tenure notwithstanding the fact the matters
were regulated by the Education Code. The court explained that
its holding harmonized sections of the Education Code bearing on
13

the same general subject and effectuated the purpose of
strengthening existing tenure rules by promoting orderly and
uniform communication between teachers and administrators.
(!sL at pp. 333-335.)
PERB's approach is also consistent with the approach taken by
the Court of Appeal in Sonoma County Bd. of Education v.
Public Emplovment Relations lld. (1980) I 02 Cal.J\pp.3d 689
!"I 63 Cal.Rptr. 464j. There school employees sought to negotiate
wages for individual job classifications. Although Education
Code section 45268 forbids salary changes which effectively
'disturb the relationship which compensation schedules bear to
one another,' the court held negotiation of salary adjustments for
individual job classifications permissible provided that the
relationship between positions established by the personnel
commission remained intact. (Ibid.)
Former Education Code section 13080 provided: 	'Nothing
contained herein shall be deemed to supersede other provisions of
this code and the rules and regulations of public school employers
which establish and regulate tenure or a merit or civil service
system or which provide for other methods of administering
employer-employee relations.'
Other PERB decisions have applied the San Mateo test and held discipline to be a
negotiable subject. 	Sec, e.g., San Bernardino City Unified School District ( 1998) PERB
Decision No. 1270 (San Bernardino II), in which sick leave review policies were held to be
within scope. The Board in San Bernardino II, citing San Bernardino I, affirmed that "rules of
conduct which subject employees to disciplinary action are subject to negotiation ... both as to
criteria for discipline and as to procedure to be followed." In Healdsburg Union High School
District and Healdsburg Union School District/San Mateo City School District ( 1984) PERB
Decision No. 375 (IIcaldsburg), the Board on remand from San Mateo noted that the Board has
applied the San Mateo test in numerous cases since the San Mateo City School District (1980)
PERB Decision No. 129 and Healdsburg Union I ligh School District and Healdsburg Union
14

School District ( 1980) PERB Decision No. I 32, the original Board decisions at issue in
San Matco. 7
That Government Code section 8314 existed as a statutory mandate before the issuance
of these e-mails docs not exclude its provisions from the scope of representation. Interestingly,
in San Mateo, while the court did not approve the negotiability of provisions that would "set
aside or replace" sections of the Education Code, it noted that the Board has approved
negotiations of the terms established by the Education Code within a collective bargaining
agreement. (San Mateo, at p. 366.) The court stated:
Such an agreement would not supersede the relevant part of the
Education Code, but would strengthen it. (Id.)
Similarly, the negotiability of discipline for violation of Government Code section 8314
would augment and clarify the meaning of this provision for the parties.
In other words, this is a new policy announced by e-mail that subjects unit employees
to discipline. Employees and their representatives should have the right to negotiate the
details of this provision, to define and clarify specifically what conduct would subject them to
discipline. 'J'he subject of the October 16 e-mail is "Appropriate Use of University Computers
and State Property." Both e-mails include a definition of"state resources" that expands upon
or confuses the limited definition in section 8314. The first sentence in the October 17, 2003
e-mail reads:
The following both clarifies and supersedes the previous e-mail
sent regarding the 'appropriate use of University computers and
state property.' (Emphasis added.)
Footnote 3, page 7 ofl-Icaldsburg refers to Jefferson School District (1980) PERB
Decision No. 133; North Sacramento School District ( 1981) PERB Decision No. 193; Holtville
Unified School District (1982) PERB Decision No. 250; Calexico Unified School District
(1982) PERB Decision No. 265; and Mt. San Antonio Community College District (1983)
PERB Decision No. 297.
15

By their own terms, these e-mails effect a unilateral change in work rules. Work rules
are negotiable, whether specific or more general. 	(See Trustees of the California State
University (2001) PERB Decision No. 1451-H, in which CSU implemented a new
requirement to wear name tags and employees who violated the nc\V policy were subject to
discipline; sec also, Trustees; State of California (Water Resources Control Board) ( 1999)
Pl~RB Decision No. 1337-S; San Bernardino City Unified School District ( 1998) PERB
Decision No. 1270; and Vernon Fire Fighters v. City of Vernon ( 1980) I 07 Cal.App.3d 802
[165 Cal.Rptr. 908] for other cases in which work rules were found to be negotiable.) The
two e-mails read together comprise a work rule.
In addition, the statutory penalty for violation of Government Code section 8314
differs from the penalty for violation of the October 17 e-mail policy. Section 8314 states that
personal use of state property subjects the violator to civil liability. The only parties
authorized to seek the judicial remedy under section 8314 are the office of the Attorney
General or a local district attorney. The provision states nothing about administrative
discipline nor contemplated such discipline.
In this case, the October 17 e-mail stated that violations of section 8314 would result
in discipline under the collective bargaining agreement, CSU Stanislaus policy and applicable
law. 8 Applicable law docs not provide for discipline but for judicial remedies. The e-mail
itself created confusion among unit members as to the meaning of section 8314 and the
If, instead, the e-mail would merely have advised employees of the contents of section
8314 and the potential for civil penalties, there would have been no unilateral change in policy.
16

impact of the e-mail. The e-mail interchange among unit employees attached to the charge
ev1.d ences tI ' 	f 	. 	9
HS con usion.
CSU further claims that the e-mail recitation of section 8314 is distinguishable from
cases cited by APC, in which the policies provided specific guidelines for employee conduct.
On the contrary, that the e-mail's recitation of section 8314 and its definition of"state
resources" do not provide guidelines, yet a violation subjects employees to discipline,
generates more concern than if detailed rules had been issued. The ambiguity of conduct that
leads to discipline raises questions of due process. This argument actually strengthens APC's
claim that the content of this e-mail requires negotiation.
The Board's decision in Trustees is also on point. In that case, CSU unilaterally
implemented a telephone and facsimile usage policy and subjected employees to discipline for
its violation. CSU had argued, in part, that the disciplinary consequences of this new policy
were consistent with section 8314. However, in Trustees, the Board found that:
The new grounds for discipline are inconsistent with section
8314. APC is correct in its contention that section 83 l 4 docs 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, violations of the October 17 e~mail "will be reported and dealt with by the
appropriate disciplinary body, which in the case of employees, shall be handled in accordance
with the collective bargaining agreement, CSU Stanislaus policy and applicable law." CSU
'9
Section 8314 is so general that it implicitly incorporates, among other items, computer
use and telephone usage policies, policies also alleged as unilateral changes in APC's charge.
Section 8314 also prohibits use of state facilities for political purposes. Incidental or minimal
personal use is permitted under section 8314. "Incidental" and "minimal" personal use arc not
clearly defined terms in the statute and so beg to be clarified in negotiations in order to
·---·--------, --·----- ··- ,.,. '··- ----
17

somehow argues that the October 17 e-mail is a mere recitation of section 8314. But there can
be no argument that the October 17 c~mail made violation of section 8314 subject to a
disciplinary process that is not provided in section 8314 itself
for the first time on appeal, APC referred to the CBA zipper clause and stated that
under Fountain Valley Elementary School District (1987) PERB Decision No. 625, if APC
chooses not to negotiate this change in policy, then under the CBA, CSU may not lawfully
implement the change. This issue was also not addressed by the majority. Under PERB
Regulation 32635(b)10, the charging party may not raise new issues on appeal absent good
cause. APC has not provided evidence to show good cause to raise this issue for the first time
on appeal and therefore we need not address it here.
f n light of the above, I find that the October l 7 e-mail unilaterally changed a policy
within the scope of representation without providing APC notice and an opportunity to
negotiate. As a result, I would reverse the partial dismissal and remand to the General Counsel
for inclusion into the complaint.
augment and explain them. failure to <lo so violates the above principle articulated in
3an Mateo that negotiations strengthen a statutory mandate.
10PERB regulations arc codified at California Code of Regulations, title 8, section
31001, ct seq.
18

'NOLD SCIIWARZF:NF:GGER, Governor
S,m Francisco Regional Office
!JJO Broadway, Suite !532
Oakland, CA 94612-2514
Tdcphom.,· (510) 622-!023
fax: (5!0) 622-1027
March 23, 2004
Lee 0. Norris, Labor Consultant
8726D S. Sepulveda Blvd., #Cl 72
Los Angeles, CA 90045
Karen D. Carr, University Counsel
California State University
40 I Golden Shore, 4th Floor
Long Beach, CA 90802-4210
Re: 	Academic Professionals of California v. Trustees of the C<!_l.iforJJ.i.~1 Stak University
(Stanislaus)
Unfair Practice Charge No. LA-CE-797-1-l
PARTIAL DISMISSAL	-- 	-
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 5, 2004. The Academic Professionals ofCalifrirnia alleges
that the Trustees of the California State University (Stanislaus) violated the Higher Education
Employer-Employee Relations Act (HEERA)1 by unilaterally implementing a computer
network use policy, a campus telephone policy, and a new disciplinary policy at the Stanislaus
campus. This letter addresses only the new disciplinary policy.
The March 2, 2004 Partial Warning Letter indicated that the CSU's issuance of emails
regarding the Government Code's restriction of the use of state resources for personal purposes
failed to state a prima facie unilateral change allegation. The Partial Warning Letter stated, in
pertinent part:
The first email indicates that the Government Code prohibits
employees from using state resources for personal uses. The
second email clarifies that the Government Code docs not
prohibit minimal and incidental use. The second email
specifically indicates that employees who violate the Government
Code or campus policies prohibiting similar activities will be
dealt with by the appropriate disciplinary body and in accordance
with the collective bargaining agreement. As the CSU states it
HEER.A is codified at Government Code section 3560 ct seq. The text of the IIEERA
and the Board's Regulations may be found on the Internet at www.pcrb.ca.gov.

LA-CE-797-H
March 23, 2004
Page2
will act in accordance with the parties' CBA it is unclear how the
CSU's actions demonstrate a unilateral change.
The first amended charge alleges, in pertinent part:
The email Hughes sent on October 17, 2003 constitutes a policy
previously unknown to the Union, which makes violation of
Government Code section 8314 an act from which discipline may
flow. 	The email is not a mere recitation of the government code,
because pursuant to § 8314 only the State Attorney General, or
the District Attorney of a county may bring civil action against
person found in violation of the law. Nothing in the statute
pcnnits the University to handle alleged violations of the statute
by its employees "WITH THE APPROPRIATE DISCIPLINARY
BODY .. .IN ACCORDANCE WITH THE COLLECTIVE
BARGAINING AGREEMENT, CSU STANISLAUS POLICY
AND APPLICABLE LAW."
The University has unilaterally granted itself the authority, a right
previously unknown to the Union, to discipline members of the
bargaining unit for alleged violations of the government code.
The above-stated inf01mation fails to state a prima facie violation for the reasons that follow.
In determining whether a party has violated HEERA section 3571 (c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per sc" violations if certain
criteria are met. Those criteria arc: (l) 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 oppoiiunity to request
negotiations. 	(Walnut Valley Unified School District ( 1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
As stated in the warning letter, the CSU explained that disciplinary matters involving
employees will be handled in accordance with the collective bargaining agreement, CSU
Stanislaus policy and applicable law. Although the first amended charge characterizes the
email as authorizing the CSU to handle alleged violations of the statute, the email states,
"violations of this law or applicable policy \\1 ill be reported and dealt with by the appropriate
disciplinary body, which in the case of employees, shall be handled in accordance with the
collective bargaining agreement, CSU Stanislaus policy and applicable law."2 The charge fails
to demonstrate the CSU implemented a unilateral change, by notifying employees that
violations of the Government Code may be reported and that discipline would be in accord
------~----
In the original email this language was written in capital letters.

LA-CE-797-H
March 23, 2004
Page 3
I
with CSU policies and collective bargaining agreements. Thus, this allegation fails to state a
prima facie violation and must be dismissed.
Right to Appeal
Pllrsuant to PERB Rcgulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.rn.)
. on the last day set for filing. 	(Regulations 32135(a) an<l 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. (Regulation
32 l35(b ), ( c) and ( d); sec also Regulations 32090 and 32 I 30.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814A174
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 ofscrvicc of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (Sec 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 pai<l an<l properly addressed. A document filed by
facsimile transmission may be concmTently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(e).)
3 PER B's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-797-H
March 23, 2004
Page4
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
Ifno 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
Tammy. 	mscl
Regional Attorney
Attachment
cc: 	Karen Carr
TLS

STA1~ _OI~ C~J;_~~'ORNJA 	':NOLD SCHWARZENEGGER, Go\'Crnor	J
PUBLIC EMPLOYMENT RELATIONS BOARD
San Frn11~i~u, Rq;iun~l Offic<:
1330 Browlway, Suit<: !532
{)ak!and,CA 94612-2514
Telephone: (510) 622-!023
Fax: (510) 622-1027
March 2, 2004
Lee 0. Norris, Labor Consultant
Academic Professionals of California
8726D S. Sepulveda Blvd., #C 172
Los Angeles, CA 90045
Re: 	AQademie ernfcssionals of CaJjfornia v. Trustees of the California State University
(Stanislaus}
Unfair Practice Charge No. LA-CE-797-H
PARTIAL WARNING LETTicR
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 5, 2004, The Academic Professionals of California alleges
that the Trustees of the California State University (Stanislaus) violated the Higher Education
Employer-Employee Relations Act (HEERA)1 by unilaterally implementing a computer
network use policy, a campus telephone policy, and a new disciplinary policy at the Stanislaus
campus. This letter addresses only the new disciplinary policy, My investigation revealed the
following information.
On October 18, 2003, APC Business Manager Edward Purcell received a copy of an email sent
by President Marvalcne I Iughcs on October 16, 2003 that referred to Government Code section
8314 which prohibits the use of state resources for personal purposes. The email indicated in
pertinent part:
Violations of any of the above prohibitions carry strict penalties,
especially Title II of the Government Code (Le, the use of public
resources by state employees for political campaign activities.)
On October 17, 2003, Hughes issued another email which stated, in pertinent part:
TIIE FOLLOWING BOTH CLARIFIES AND SUPERSEDES
TlIE PREVIOUS E-MAIL SENT REGARDING THE STATE
"APPROPRIATE USE OF UNIVERSITY COMPUTERS AND
STATE PROPERTY."
--------- r-------~-~~~
HEERA is codified at Government Code section 3560 ct seq, The text of the HEER.A
and the Board's Regulations may he found on the Internet at www.pcrb.ca.gov.

LA-CE-797-H
March 2, 2004
Page 2
STATE LAW RESTRICTS THE USE OF STATE RESOURCES
FOR PERSONAL PURPOSES, CAMPAIGN ACTIVITY AND
ANY OTHER PURPOSES WHICH ARE NOT AUTHORIZED
BYLAW.
* 	* 	* 	* 	*
PERSONAL USAGE OF STATE RESOURCES AND
CAMPAIGN ACTIVITY THAT ARE NOT MINIMAL OR
INCIDENTAL ARE PROHIBITED. [FOR EXAMPLE, AN
OCCASIONAL LOCAL TELEPHONE CALL IS NOT
PROHIBITED.]
VIOLATIONS OF THIS LAW OR APPLICABLE POLICY
WILL BE REPORTED AND DEALT WITH BY THE
APPROPRIATE DISCIPLINARY BODY, WHICH IN THE
CASE OF EMPLOYEES, SHALL BE HANDLED IN
ACCORDANCE WITH THE COLLECTIVE BARGAINING
AGREEMENT, CSUS STANISLAUS POLICY AND
APPLICABLE LAW.
APC alleges this email institutes a new disciplinary policy because bargaining unit employees
may now be disciplined for violating the Government Code.
The above-stated information fails to state a prima facic violation for the reasons that follow.
In detcrn1ining whether a party has violated HEERA section 3571 ( c), PERB utilizes either the
"per sc" 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 arc considered "per sc" violations if certain
criteria are met. Those criteria are: {l) the employer implemented a change in policy
concerning a matter within the scope ofrepresentation, 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.)
The charge fails to demonstrate CSU implemented a change in policy. The first email
indicates that the Government Code prohibits employees from using state resources for
personal uses. The second email clarifies that the Government Code docs not prohibit minimal
and incidental use. The second email specifically indicates that employees who violate the
Government Code or campus policies prohibiting similar activities will be dealt with by the
appropriate disciplinary body and in accordance with the collective bargaining agreement. As
the CSU states it will act in accordance \Vith the parties' CBA it is unclear how the CSU's
actions demonstrate a unilateral change. Thus, this allegation must he dismissed.

LA-CE-797-H
March 2, 2004
Page 3
For these reasons the allegation that the President's emails instituted a new disciplinary policy,
as presently written, docs not state a prima facic case. If there arc 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 corner of the charge form. 	The
amended charge must he served on the respondenl'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 March 11, 2004, I shall dismiss the above-described allegation from your charge.
lfyou have any questions, please call me at the telephone number listed above.
Sincerely,
Tammy Samsel
Regional Attorney
TLS