Trustees of the California State University (PERB 1760H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
CaseNo.LA-CE-717-H
PERB Decision No. 	1760-H
March 	3 0 , 	2005
Appearances: 	Lee Norris, Labor Relations Representative, for Academic Professionals of
California; Janette Redd Williams and Victor King, University Counsels, for Trustees of the
California State University.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Academic Professionals of California (APC) to a proposed
decision of a PERB administrative law judge (ALJ). In the proposed decision, the ALJ found
that APC had failed to establish that the Trustees of the California State University (CSU or
University) made a unilateral change in policy or practice regarding the quantity of employee
representatives permitted at a Skelly hearing1 and their right to speak on behalf of the
The reference is to the pre-disciplinary meeting between the public employee and the
Review Officer as set forth in Skellv v. State Personnel Bd. (1975) 15 Cal.3d 194 [124
Cal.Rptr. 14] (Skelly). In Skellv, the Court holds that due process mandates that the employee
be accorded certain procedural rights before the discipline becomes effective. 	These
safeguards include "notice of the proposed action, the reasons therefore, a copy of the charges
and materials upon which the action is based, the right to respond, either orally or in writing, to
the authority initially imposing discipline." (Skelly, at p. 215.)

employee during the hearing. 	The ALJ thereupon dismissed the complaint and the underlying
unfair practice charge.
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, APC's exceptions and the University's response. As discussed in the decision below,
the Board agrees that APC has failed to establish a unilateral change in policy or practice, and
on that basis, dismisses the complaint.
PROCEDURAL HISTORY
This action was commenced on November 11, 2002, when APC filed an unfair practice
charge against the University. 	The Office of the General Counsel of the Board followed on
April 30, 2003, by issuing a complaint against the University. The complaint alleged that
before July, 1997, it was the University's policy or practice to permit more than one employee
representative at a Skelly hearing, and to allow them to speak on behalf of the employee. 	The
complaint further alleged that effective July 1997, the University adopted the "Instructions for
Skelly Review Officers," which limited the quantity of employee representatives to one. 	On
August 22, 2002, a Skelly review officer (Skelly officer) announced before the commencement
of a scheduled Skelly hearing at CSU Los Angeles, that he would disallow more than one
employee representative, and prohibit the representative to speak on behalf of the employee.
By making these changes, the complaint alleged, the University had violated the Higher
Education Employer-Employee Relations Act (HEERA)2 section 3571 (a) and (c).
The matter was not settled at the conclusion of an informal conference on June 26,
2003.
2HEERA is codified at Government Code section 3560, et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
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On motion by APC, the complaint was amended on August 14, 2003, to add the
allegation that the University had unlawfully promulgated a change in the Skelly policy on a
statewide basis.
A hearing into these allegations was conducted before the ALJ on September 16, 2003,
at the PERB office in Los Angeles. 	With the filing of post-hearing briefs, the matter was
submitted for decision on November 14, 2003. The ALJ issued the proposed decision on
December 4, 2003, dismissing the complaint and the underlying unfair practice charge.
FINDINGS OF FACT
The University is an employer as defined in HEERA section 3562(g). APC is an
employee organization as defined in Section 3562(h). At all times relevant, APC has been the
exclusive representative, as defined in Section 3562(i), of an appropriate unit of the
University's employees. 	A collective bargaining agreement was in effect between the parties
during the relevant period. However, it contains no provision that arguably prohibits the
conduct at issue.
The University's Policy Regarding Skellv Review Officers Before 1997
The function of a Skelly officer is to provide an objective review of the employee's
response to the employer's charge, and to evaluate whether there is evidence to justify
disciplinary action. 	The University appoints Skelly officers on a voluntary ad-hoc basis. 	They
are usually managers or supervisors, who receive no training and many of whom have no prior
experience as Skelly officers.
Linda MacAllister (MacAllister), former staff attorney in the general counsel's office of
the University, testified at the hearing before the ALJ that prior to July 1997, guidelines for
Skelly officers were contained in a one-page document. Although the University was unable
W
	3

to locate this document, MacAllister testified that she was familiar with both the guidelines and
general policy concerning Skelly officers during that time period.
MacAllister testified that the guidelines, consisting of an outline of the responsibilities
of Skelly officers, were inadequate to address all the issues regarding the Skelly review
process. 	Skelly officers would receive additional verbal communications regarding general
policies, one of which concerned the quantity of representatives the employees were allowed to
have during Skelly hearings.
APC witnesses were not familiar with the University's guidelines regarding Skelly
officers before 1997. 	They testified as to their experiences in approximately seven Skelly
hearings, none of which occurred before 1997. As APC offered no evidence to rebut
MacAllister's testimony, the Board agrees with the ALJ's factual finding that MacAllister
properly described the University's policy as it existed before 1997.
The relevant portions of the pre-1997 policy are stated as follows. There was a
preference for only one representative at the hearing, however, Skelly officers had the
discretion to allow more. 	Although employees were encouraged to speak on their own behalf,
the employee representatives were permitted and not restricted to speak in the course of their
representation.
In or around May 1997, MacAllister recommended to the University's general counsel
that all of the University's existing policies regarding its review officers' conduct of Skelly
hearings be codified. The intent, according to MacAllister, was to:
[C]ome out with a document that put into simple English the
advice, the legal advice, we had been given [sic] our clients for as
long as I've been doing disciplines in the office and hopefully
save the University counsel time in not getting repeat questions.
It was to put into writing legal advice we had been giving our
campuses over the phone.
(R.T. p. 63.)
A
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MacAllister emphasized in her testimony that the intent was to put the current policies in
writing rather than to develop "new" policies.
The University's Adoption of the Instructions for Skellv Review Officers in 1997
The University's general counsel office completed a draft of the "Revision of the
Instructions Provided to Skelly Review Officers," in May 1997, sent it to the University
campus personnel officers and requested feedback on the revisions. In July 1997, the draft was
adopted as "Instructions for Skelly Review Officers" (instructions), and distributed to the
presidents and personnel directors of the various CSU campuses. It is undisputed that during
this process, the University did not provide APC a copy of the instructions.w3
The relevant portions of the instructions are stated in the following:
The employee is entitled to have one representative when s/he
meets the Review Officer, if s/he chooses. 	Other persons to
support the employee may only attend if the Review Officer
consents. 	Since additional persons can be distracting and/or
create confusion, their involvement is generally discouraged. 	The
employee's representative may be a union representative or an
attorney. 	In either case, formal representative of management is
not required given the limited role of the Review Officer. If the
employee is accompanied by any representative, the Review
Officer should make clear that s/he is there to hear from the
employee, and not other persons whose purpose in attendance is
to provide support. 	[Italics in original.]
APC argues that based on the above language, employees are entitled to have only one
representative during Skelly hearings. The instructions allegedly give the Skelly officers no
discretion to allow more than one employee representative.
The University disputes APC's interpretation of the instructions. MacAllister, who
drafted the instructions, testified that since 1989, Skelly officers had always had the discretion
3The University also claimed during the hearing that the instructions were intended to
constitute legal advice, and thus, were protected by the attorney-client privilege. However, it
is undisputed that the instructions are now provided to Skelly officers upon their appointments,
and are available to the public on the CSU's website.
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to allow more than one employee representative at the hearings. The instructions were
intended to merely codify existing policy or practice, and not to restrict the Skelly officers'
discretion in determining the quantity of employee representatives permitted to participate at
the hearing. 	She testified that:
[W]e don't restrict them to one. We strongly encourage that there
be only one representative. If they show up with more than one
representative, the hearing is not canceled. It is left up to the
Skelly review officer to determine whether or not to go forward.
In my practice of being involved with these since 1989, there's
never been one that has been canceled because there was more
than one person there.
(R.T. p. 78.)
MacAllister added that the instructions do not prohibit or restrict the representative's ability to
speak on behalf of the employee.
Two APC witnesses testified to their experiences in approximately seven Skelly
hearings. 	At a prior hearing that occurred in January 2002,4 APC was notified that only one
employee representative would be allowed. 	APC objected, and after an exchange of e-mails
between the campus director of human resources and the campus steward, two representatives
were allowed. 	In all other instances to which the witnesses testified, except for the present
matter, at least two representatives were permitted to remain and participate in the Skelly
hearings.
University witnesses also testified about their experiences with Skelly hearings. 	They
testified that before and after 1997, they understood that the University had a preference for
one employee representative, but that Skelly officers had the discretion to allow more.
Although the University had a preference to hear directly from the employee, the
representatives were allowed to speak provided that they did not disrupt the hearings.
All dates hereafter refer to the year 2002, unless otherwise specified.
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The Skellv Hearing at CSU Los Angeles on August 22. 2002
The Skelly hearing that resulted in this unfair practice charge was the only instance in
which the Skelly officer would not allow two representatives. 	This incident arose at CSU
Los Angeles, on August 22. Ben Figueroa (Figueroa) was the Skelly officer. Appearing at the
hearing were the employee and two APC representatives, Lee Norris (Norris) and the campus
steward. 	The APC representatives informed Figueroa that the employee would not speak
during the hearing, and that they would speak on her behalf.
Figueroa announced before the scheduled hearing that the employee could have only
one representative. Norris insisted that there be two, and that he would do all the speaking for
the employee. 	Figueroa, unsure of whether to go forward under these conditions, attempted to
consult with the Department of Human Resources. However, he was unable to reach anyone in
that department or in the office of general counsel. 	He made the decision finally, based on his
understanding of the instructions, to stand by his first announcement.
Figueroa also stated that while one APC representative could speak during the hearing,
the employee's failure to speak on her own behalf could influence his recommendation as to
her discipline. The APC representatives did not agree to these conditions, and the meeting
ended without the hearing being held.5
At the hearing before the ALJ, Figueroa testified that based on his reading of the
instructions, he believed he had no authority to allow more than one representative. On
redirect examination, Figueroa was asked to read that portion of the policy discussing
additional "support" persons. After reading that section, Figueroa appeared to change his mind
and testified that he did have the discretion to allow more than one representative.
There is a dispute between Norris and Figueroa as to whether Norris was unduly angry
and who caused the meeting to end. The ALJ found no need to resolve this dispute, and
neither party filed exceptions over this point.
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APC's Request for Instructions
After the Skelly hearing was cancelled on August 22, APC made a written information
request seeking all documents which a Skelly officer would rely on or which limited the
number of representatives an employee might have at a Skelly hearing. In response, the
University provided a copy of the instructions on September 18. In a letter dated October 11,
Norris claimed that the University had "unilaterally promulgated" a new policy by
implementing the instructions, and requested all documents governing Skelly hearings
preceding adoption of the instructions. 	The University's assistant vice-chancellor responded in
writing on October 25, that no policies had been issued and practices regarding Skelly hearings
had remained unchanged.
APC claims that before September 18, it had no knowledge of the instructions adopted
by the University in 1997, or of the one-page guideline which predated it. APC contends that,
assuming the one-page document existed, the adoption of the 1997 instructions was a change
in policy, of which it learned for the first time on September 18. 	APC further contends that
employees have a statutory right to representation at Skelly hearings which the University may
not limit without first bargaining with APC.
DISCUSSION
The issues in the present case are whether or not the University made a unilateral
change in its policy regarding employee representation at Skelly hearings, and thereby failed to
meet and negotiate in good faith by: first, adoption of the instructions for Skelly review
officers in 1997; and second, Skelly Officer Figueroa's refusal to permit more than one
employee representative at a Skelly hearing on August 22, 2002, at CSU Los Angeles, and
disallowing the representatives to speak on behalf of the employee.
8

HEERA section 357l(c) states that a unilateral change in policy or practice violates the
duty to meet and confer in good faith. 	In determining whether a party has violated HEERA
section 357 l(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.)
To prevail on a complaint of unilateral change, the exclusive representative must
establish by a preponderance of the evidence that the employer breached or altered the parties'
written agreement or own established past practice; such action was taken without giving the
exclusive representative notice or an opportunity to bargain over the change; the change was
not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a
generalized effect or continuing impact upon the terms and conditions of employment of
bargaining unit members); and the change in policy concerns a matter within the scope of
representation. (Grant Joint Union High School District (1982) PERB Decision No. 196: State
of California (Department of Forestry and Fire Protection) (1993) PERB Decision No. 999-S.)
In its exceptions, APC argues that the ALJ erred in finding that the University had a
pre-1997 policy of preferring only one union representative in Skelly hearings. 	The
University's evidence consisted solely of MacAllister's testimony, and absent any
documentary proof to the contrary, the only conclusion is that the University did not limit the
number of union representatives in Skelly hearings before 1997. 	This policy was changed
when Figueroa denied an employee her right to have more than one representative at a Skelly
hearing on August 22, at CSU Los Angeles. Figueroa's conduct of the hearing was not an
isolated breach of the contract, but amounted to a change of policy or practice.
The University contends in its response that the evidence shows the University policy
or practice regarding Skelly hearings has been consistent in its preference for one union
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representative at Skelly hearings, and hearing directly from the employee rather than the
representative. The testimony of two APC witnesses, stating that more than one union
representative were allowed in several Skelly hearings, is insufficient to establish that the
University had a "past practice."
The first issue before the Board is whether the University's adoption of the instructions
in 1997 constituted a unilateral change in policy or practice. The preponderance of the
evidence in the present case shows that before July 1997, the University's policy or practice
was to inform Skelly officers that it was preferable to have only one representative present at
the Skelly hearings, but that they had the discretion to allow more. 	Skelly officers were further
instructed that it was preferable to hear directly from the employee during the Skelly hearings,
but that representatives were not prohibited from speaking, and in fact, were permitted to
speak.
To determine whether or not the University departed from this past policy or practice
by adopting the instructions in July 1997, we must first interpret the language of the
instructions. 	The plain language of the policy must be accepted if it is clear and unambiguous.
(County of San Joaquin (2003) PERB Decision No. 1570-M; Westlands Water District (2004)
PERB Decision No. 1622-M.) Where an ambiguity exists, it is proper to rely on extrinsic
evidence to ascertain the meaning of the policy. (Modesto City Schools (1983) PERB
Decision No. 347 (Modesto).) In Modesto, a case involving a teacher evaluation policy, the
Board held that when the policy did not "unambiguously preclude" consecutive evaluations,
but was only "silent" as to the frequency of such evaluations, the Board should "interpret the
policy's silence in accord with the purpose intended to be served by the policy."
In the present matter, the instructions state that the "employee is entitled to have one
representative when s/he meets with the Review Officer, if s/he chooses. 	Other persons to
10

support the employee may only attend if the Review Officer consents." The instructions are
silent as to whether the employee is entitled to only one representative and whether the Skelly
officer has discretion to allow more. 	The purpose intended to be served by the instructions is
to guarantee the employee certain procedural rights before the discipline becomes effective.
(Skelly.) Inherent with the due process protection for the employee as warranted by the Skellv
decision are notices of the nature, reasons, and facts supporting the charges of the proposed
disciplinary action, and the opportunity to respond. Under these circumstances, it seems
incongruous to find that the University, by its silence, intended to restrict the employee's right
to representation.
The instructions specifically permit "other persons to support the employee" to attend
the hearing, if the Skelly officer "consents." The instructions are again silent as to whether or
not the additional representative(s) can be permitted to attend the hearing as the employee's
other support person(s). In reaching its decision in Modesto, the Board considered extrinsic
evidence, including the testimony of a witness who was responsible for drafting the policy, in
clarifying any ambiguity therein. 	Accordingly, we refer to the testimony of MacAllister who
drafted the instructions. 	MacAllister testified that the instructions did not remove from Skelly
officers their discretion to allow more than one representative. 	She further testified that in her
personal experience, no Skelly officer had interpreted the instructions as prohibiting the
exercise of his or her discretion to allow additional representatives, except the Skelly officer in
the present matter. 	When Figueroa was placed under redirect examination during the hearing
before the ALJ, Figueroa was asked to read that portion of the policy discussing additional
"support" persons. 	After reading that section, Figueroa testified that he did have the discretion
to allow more than one representative. Based on this testimonial evidence and the discussion
11

above, the Board finds that the instructions did not constitute a change in policy or practice
with respect to the quantity of representatives allowed in Skelly hearings.
APC contends that the University unilaterally changed its past practice of permitting
the employee representative to speak on behalf of the employee at a Skelly hearing. 	The
instructions are silent on the ability of the employee's representative to speak. On their face,
the instructions state that where an employee has a representative, the involvement of other
support persons is generally discouraged since they can be distracting and/or create confusion.
This does not mean that the employee representative, whose role is distinguishable from that of
a support person, is prohibited from speaking. 	This interpretation is supported by
MacAllister's testimony stating that the University's policy or practice, which has remained
consistent before and after the adoption of the instructions, permits both the employee and the
representative to speak.
In conclusion, the Board finds the language of the instructions ambiguous and/or silent
on the issues of whether a Skelly officer has the discretion to allow more than one
representative and whether the representative has a right to speak. 	The Board has considered
the testimony of MacAlister, who drafted the instructions, that the instructions give Skelly
officers the discretion to allow more than one representative, permit the representative(s) to
speak on behalf of the employee, and make clear that the Skelly officer is there to hear from
the employee. 	The Board finds MacAllister's testimony convincing in that the instructions do
not depart from established University policy or practice. 	MacAllister's testimony is supported
by the APC witnesses' statements that except for the present matter, multiple representatives
are allowed to attend Skelly hearings and speak on behalf of the employee. The Board notes
12

that as the charging party, APC has the burden of proof. (PERB Reg. 32178.6) In this matter,
APC has failed to present any rebuttal evidence to show that MacAllister's testimony
concerning the pre-1997 policy was incorrect, and that APC's recollection or knowledge of the
policy contradicted that of MacAllister. 	In the absence of any contradictory evidence, the
Board finds that the instructions represent the past and current University policy or practice
regarding the Skelly review process. 	APC has therefore failed to establish that the adoption of
the instructions constituted a unilateral change.
The Board now addresses the issues raised by the Skelly hearing scheduled for
August 22 at CSU Los Angeles. Before the commencement of the hearing, Figueroa
announced that he would allow only one union representative to attend the Skelly hearing with
the employee. According to Figueroa's testimony, his refusal to allow two representatives was
based on his interpretation of the instructions, and belief that he had no discretion to allow
more than one representative.
Before the commencement of the August 22, Skelly hearing, Figueroa also stated that
he wanted to hear directly from the employee, and that the employee's refusal to speak could
influence his decision. 	The Board finds nothing improper about Figueroa's request to hear
directly from the employee. As discussed earlier, an employee is entitled to certain due
process safeguards at a Skelly hearing. These safeguards include, among other things, "the
right to respond, either orally or in writing, to the authority initially imposing discipline."
(Skelly, at p. 215.) The University's policy of preferring to hear directly from the employee
who is accompanied by a representative, rather than from the other person whose purpose in
attendance is to provide support, is therefore congruent with the employee's right to respond
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
13

under the Skelly decision. Furthermore, by insisting that the employee speak on her own
behalf, Figueroa never stated that the employee's representative would be prohibited from
speaking or representing the employee. As such, the Board finds that Figueroa did not breach
the University's policy allowing representatives to speak or represent the employees at Skelly
hearings.
The only remaining issue is whether Figueroa's failure to follow the University's policy
to allow more than one representative constituted a change in policy or practice. As is evident
from Figueroa's testimony, he was confused about how to interpret the instructions, and after
futilely seeking clarifications from the director of human resources and the general counsel's
office, he concluded on his own that only one representative would be permitted. In the
absence of any evidence showing that the University had authorized Figueroa to exclude the
second representative, Figueroa's misinterpretation of the instructions cannot be imputed on
the University.
There is no evidence that Figueroa's interpretation was adopted by the University. To
the contrary, Figueroa's interpretation was reputed by MacAllister and the APC witnesses who
testified that with the exception of this single incident, more than one employee representative
were permitted at Skelly hearings. As a result, the Board finds that Figueroa's actions only
constituted a one-time breach of the University's policy, and did not have a generalized effect
or continuing impact upon the terms and conditions of employment of a bargaining unit
member.7
7As this appears to be a one-time violation with no continuing impact, the State of
California (Department of Forestry and Fire Protection) (1993) PERB Decision No. 999-S and
Hacienda La Puente Unified School District (1997) PERB Decision No. 1186 decisions cited
by APC are distinguishable.
14

Accordingly, the Board concludes that the University made no unilateral change when
it adopted the instructions in July 1997, and when Figueroa misinterpreted the instructions and
announced that only one representative would be permitted at a Skelly hearing on August 22,
and that the representative could not speak on behalf of the employee. 	The complaint must be
dismissed.
Having dismissed the complaint on the grounds that there has been no change in policy
or practice, the Board does not find it necessary to address the timeliness and scope of
representation issues.
ORDER
The unfair practice charge and complaint in Case No. LA-CE-717-H is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
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