PERB Decision No. 0231H

Full text

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COLLEGE AND 	UNIVERSITY 	SERVICE
EMPLOYEES 	- 	SERVICE 	EMPLOYEES
INTERNATIONAL UNION, 	AFL/CIO,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY, 	HAYWARD,
Respondent.
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Case 	No. 	SF-CE-3-H
PERB 	Decision 	No. 	231-H
August 10, 	1982
Ap~earances: 	Robert 	J. 	Bezemek, 	Attorney 	(Van 	Bourg, 	Allen,
Weinberg 	& Roger) 	for 	College 	and 	University Employees-Service
Employees 	International 	Union, 	AFL/CIO.
Before 	John 	w. 	Jaeger, 	Marty Morgenstern, 	and 	Virgil 	w. 	Jensen,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on·~xceptions 	filed 	by 	the 	College
and 	University 	Employees-Service 	Employees 	International 	Union,
AFL-CIO 	(CAUSE-SEIU 	or 	Charging 	Party), 	to 	the 	proposed
decision of 	the 	hearing 	officer 	finding 	that 	the 	California
State 	University, 	Hayward, 	(hereafter 	University) 	violated
subsection 	357l(a)l when 	it 	required 	employees 	to 	use 	time
lAll 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	noted. 	The 	Higher 	Education Employer-Employee
Relations 	Act 	(HEERA) 	is 	codified 	at 	Government 	Code
section 	3560 	et 	seq. 	Subsection 	3571(a) 	reads:
[It 	shall 	be 	unlawful 	.•• 	to] 	Impose 	or
threaten 	to 	impose 	reprisals 	on 	employees,
to 	discriminate 	or 	threaten 	to 	discriminate

clocks 	in 	reprisal 	for 	engaging 	in 	protected 	activity. 	The
single 	exception 	taken 	to 	the 	proposed 	decision 	concerns 	the
adequacy 	of 	one 	portion 	of 	the 	proposed 	remedy. 	CAUSE-SEIU
argues 	that 	the 	proposed 	order 	is 	inadequate 	in 	that 	it 	only
requires 	the 	University 	to 	return 	to 	the 	status 	quo 	ante 	until
either 	the 	results 	of 	the 	pending 	election 	to 	determine
representation 	are 	certified, 	or 	90 	calendar 	days 	from 	the 	date
the 	decision 	becomes 	final 	expire, 	whichever 	occurs 	first. 	The
University 	did 	not 	take 	exception 	to 	the 	proposed 	decision 	nor
did 	it 	respond 	to 	the 	exception 	taken 	by CAUSE-SEIU. 	The 	sole
issue 	before 	the 	Board 	is 	whether 	the 	proposed 	order 	is
arbitrary or 	insufficient 	in 	light 	of 	the 	circumstances 	of 	this
case. 	We 	affirm 	the 	hearing 	officer's 	findings 	but 	modify 	the
proposed 	order 	to 	comport 	with 	the 	current 	circumstances.
FACTS
The 	Board 	has 	reviewed 	the 	hearing 	officer's 	finding 	of
facts 	and 	conclusions 	of 	law 	and 	finds 	them 	free 	of 	prejudicial
error. 	We 	thus 	incorporate 	the 	attached 	hearing 	officer's
decision.
DISCUSSION
The 	hearing 	officer 	found 	that 	the 	University 	violated
subsection 	357l(a) 	when 	it 	required 	employees 	to 	use 	time
against 	employees, 	or 	otherwise 	to 	interfere
with, 	restrain or 	coerce 	employees 	because
of 	their 	exercise 	of 	rights 	guaranteed 	by
this 	chapter.
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clocks 	in 	reprisal 	for 	protected 	activity. 	He 	concluded 	the
Nanery 	"letter 	writing 	campaign," 	the 	grievances, 	and 	the
organizing 	drive 	focusing 	on 	the 	time 	reporting 	issue 	was
protected 	activity. 	He 	found 	that 	the 	employees 	in 	Plant
Operations 	were 	required 	to 	use 	the 	time 	clocks 	in 	reprisal 	for
that 	protected 	activity.
The 	proposed 	order 	in 	this 	matter 	requires 	the 	u~iversity
to 	cease 	and 	desist 	from 	retaliating 	against 	employees 	by
requiring 	them 	to 	use 	time 	clocks, 	or 	enforcing 	timekeeping
policies 	in 	retaliation 	for 	exercising 	rights 	guaranteed 	by
HEERA. 	It 	further 	requires 	the 	University 	to 	return 	to 	the
previous 	timekeeping 	system 	for 	a 	period 	of 	90 	days 	or 	until 	a
representation 	election 	is 	held, 	whichever 	occurs 	sooner.
CAUSE-SEIU 	excepts 	to 	only 	that 	portion 	of 	the 	proposed
order 	that 	requires 	the 	University 	to 	return 	to 	the 	former
timekeeping 	procedure 	for 	a 	maximum 	of 	90 	days. 	It 	argues 	that
the 	University 	will 	benefit 	from 	its 	violation 	of 	HEERA 	because
the 	time 	limit 	imposed 	for 	return 	to 	the 	status 	quo 	ante 	is
less 	than 	the 	period 	in 	which 	the 	University's 	retaliatory
policy 	was 	in 	effect.
In 	Santa 	Clara 	Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104, 	the 	Board 	determined 	that 	a 	remedy 	for 	a
violation 	of 	subsection 	3543.S(a) 	of 	the 	Educational 	Employment
Relations 	Act 	should 	be 	"designed 	to 	restore, 	so 	far 	as
possible, 	the 	status 	quo 	which 	would 	have 	been 	obtained 	but 	for
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the 	wrongful 	act." 	The 	identical 	language 	is 	contained 	in
subsection 	357l(a). 	We 	have 	carefully 	reviewed 	the 	findings 	of
fact 	and 	conclusions 	reached 	by 	the 	hearing 	officer 	that 	formed
the 	basis 	for 	the 	proposed 	remedy, 	and 	we 	find 	them 	to 	be 	free
from 	error. 	However, 	because 	of 	the 	change 	of 	circumstances
since 	the 	issuance 	of 	the 	proposed 	decision, 	we 	modify 	the
order 	to 	reflect 	the 	change 	in 	conditions.
The 	Board 	takes 	official 	notice 	of 	information 	contained 	in
its 	records 	that 	indicates 	that 	a 	representation 	election 	has
occurred 	for 	nonprofessionals, 	including 	employees 	in 	the 	Plant
Operations 	Department.2 	The 	ballots 	were 	mailed 	on
December 	14, 	1981 	and 	were 	required 	to 	be 	returned 	by
January 	26, 	1982. 	The 	ballot 	presented 	a 	choice 	between 	the
California 	State 	Employees 	Association 	and 	no 	representative.
CAUSE-SEIU did 	not 	appear 	on 	the 	ballot. 	No 	objections 	were
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filed 	and 	the 	results 	of 	this .
election 	were 	certified 	on
February 	16, 	1982, 	with 	CSEA 	being 	designated 	as 	the 	exclusive
representative 	of 	all 	nonprofessional 	employees 	in 	Unit 	5,
Operations/Support.
21n 	PERB 	Case 	No. 	LA-HR-5, 	California 	State 	University,
Unit 	5, 	Operations 	Support, 	a 	representation 	election 	occurred
and 	an 	exclusive 	representative 	was 	certified 	to 	represent
employees, 	including 	those 	in 	the 	Hayward 	Plant 	Operations
Department 	on February 	16, 	1982. 	The 	Charging 	Party 	in 	the
matter 	pending 	before 	us 	today 	was 	not 	a 	party 	to 	the
representation 	proceeding.
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Because 	CAUSE-SEIU 	is 	no 	longer 	involved 	in 	any 	organizing
activity 	at 	the 	CSU-Hayward 	campus, 	the 	Board 	concludes 	that 	a
change 	in 	circumstances 	has 	occurred 	that 	requires 	us 	to 	modify
the 	proposed 	order. 	We 	will 	require 	only 	that 	the 	University
post 	a 	notice 	indicating 	it 	will 	cease 	and 	desist 	from
retaliating 	against 	employees 	in 	Plant 	Operations 	for 	engaging
in 	protected 	activity. 	To 	further 	require 	that 	the 	University
return 	to 	the 	former 	timekeeping 	procedure, 	in 	light 	of 	the
subsequent 	change 	in 	circumstances 	regarding 	the
representational 	status 	of 	the 	Charging 	Party, 	would 	not
effectuate 	the 	purposes 	of 	the 	Act, 	nor 	would 	it 	be 	consistent
with 	the 	factual 	basis 	for 	the 	conclusion 	that 	the 	University
violated 	subsection 	357l(a).
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	entire
record 	in 	this 	case, 	and 	pursuant 	to 	Government 	Code
section 	3563.3, 	it 	is 	hereby ORDERED 	that 	the 	California 	State
University, 	Hayward, 	and 	its 	representatives 	shall:
A. 	Cease 	and 	desist 	from:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering
with, 	restraining 	or 	coercing 	employees 	because 	of 	the 	exercise
of 	rights 	guaranteed 	by 	the 	HEERA. 	In 	particular, 	the
University 	shall 	not, 	in 	the 	future, 	institute 	changes 	in
timekeeping 	policies 	and 	requirements 	to 	retaliate 	against
employees.
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B. 	Take 	the 	following 	affirmative 	action 	designed 	to
effectuate 	the 	purposes 	of 	the 	HEERA:
1. 	Post 	at 	all 	work 	locations 	on·campus, 	where 	notices 	to
employees 	are 	customarily 	placed, 	copies 	of 	the 	Notice 	attached
as 	an 	appendix 	hereto. 	Such 	posting 	shall 	be 	maintained 	for 	a
period 	of 	at 	least 	30 	consecutive 	workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	ensure 	that 	said 	Notices 	are 	not 	reduced 	in
size, 	altered, 	defaced 	or 	covered 	by 	any 	other 	material.
2. 	At 	the 	end 	of 	the 	posting 	period, 	notify 	the
San 	Francisco 	Regional 	Director 	in 	writing 	of 	the 	actions 	taken
to 	comply 	with 	this 	ORDER.
This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	California 	State 	University,
Hayward.
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ember
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APPENDIX A
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	SF-CE-3-H,
College 	and 	University Employees/Service 	Employees
International 	Union, 	AFL/CIO 	v. 	California 	State 	University,
Hayward, 	in 	which 	both 	parties 	had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	California 	State 	University, 	Hayward,
violated 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act,
Government 	Code 	section 	357l(a). 	As 	a 	result 	of 	this 	conduct,
we 	have 	been 	ordered 	to 	post 	this 	Notice 	and 	to 	abide 	by 	the
following:
A. 	We 	will 	CEASE 	AND 	DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering
with, 	restraining 	or 	coercing 	employees 	because 	of 	the 	exercise
of 	rights 	guaranteed 	by 	the 	HEERA. 	In 	particular, 	the
University 	shall 	not, 	in 	the 	future, 	institute 	changes 	in
timekeeping 	policies 	and 	requirements 	to 	retaliate 	against
employees.
CALIFORNIA 	STATE UNIVERSITY,
HAYWARD
By
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
30 	WORKING 	DAYS 	FROM THE 	DATE 	OF 	THIS 	POSTING AND MUST NOT BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.
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STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COLLEGE AND UNIVERSITY
EMPLOYEES 	- 	SERVICE 	EMPLOYEES
INTERNATIONAL 	UNION 	(CAUSE 	- 	SEIU) ,
AFL/CIO,
Charging 	Party,
v.
CALIFORNIA 	STATE UNIVERSITY,
HAYWARD,
Respondent.
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Unfair 	Practice 	Charge
Case No. 	SF-CE-3-H
PROPOSED, DECISION
(8/22/80)
Appearances: 	Robert 	J. 	Bezemek, 	Attorney 	(Van 	Bourg, 	Allen,
Weinberg 	& Roger) 	for 	College 	and University Employees--Service
Employees 	International 	Union 	(CAUSE-SEIU)r 	AFL/CIO; 	Jaffe 	D.
Dickerson, 	Attorney, 	for 	California State University.
Before Michael 	J. 	Tonsing, 	Hearing Officer.
PROCEDURAL 	HISTORY
On October 	10, 	1979, 	the 	charging 	party, 	College 	and
University 	Service 	Employees-Service 	Employees 	International
Union, 	AFL/CIO 	(hereafter 	CAUSE-SEIU 	or 	the 	Union) 	filed 	its
original 	unfair 	practices 	charge 	against 	the 	respondent,
California 	State 	University, 	Hayward 	(hereafter 	the
University). 	The 	original 	complaint 	alleged 	that 	the
University 	had 	violated 	section 	357l(a) 	of 	the 	Higher 	Education

Employer-Employee 	Relations 	Actl 	by 	installing 	time 	clocks
and 	requiring 	employees 	of 	its 	plant 	operations 	department 	to
punch 	in 	and 	out 	in 	retaliation 	for'protected 	activity1 	that 	it
had 	violated 	section 	3571(a) 	and 	(b) 	of 	the 	Act 	by 	refusing 	to
meet 	and 	confer 	with CAUSE-SEIU 	and 	ignoring 	its 	grievances12
that 	it 	had 	violated 	section 	3571(f) 	of 	the 	Act 	by meeting 	with
a 	staff 	advisory 	group 	after 	a 	petition 	for 	certification 	had
been 	filed 	by CAUSE-SEiu.3
On October 	11, 	1979, 	the 	Union 	filed 	an 	amendment 	to 	its
charge, 	specifying 	the 	reasons 	for 	the 	reprisal 	as: 	membership
by 	employees 	in CAUSE-SEIU, 	organizing 	activity, 	a 	desire 	to
single 	out 	plant 	operations 	employees, 	and 	retaliation 	for
representation 	by 	the 	Union. 	The 	University 	filed 	its 	answer
lGovernment 	Code 	section 	3560 	et 	seq. 	(hereafter 	HEERA,
or 	the Act). 	All 	referenees 	are 	to 	the 	Government 	Code 	unless
otherwise 	noted. 	Section 	3571(a) 	reads:
[It 	shall 	be 	unlawful 	to] 	Impose 	or 	threaten
to 	impose 	reprisals 	on 	employees, 	to
discriminate	iscriminate or threaten to discriminate	or 	threaten 	to 	discriminate
against 	employees, 	or 	otherwise 	to 	interfere
with, 	restrain 	or 	coerce 	employees 	because
of 	their 	exercise 	of 	rights 	guaranteed 	by
this 	chapter.
2section 	357l(b) 	reads:
[It 	shall 	be 	unlawful 	to] 	Deny 	to 	employee
organizations 	rights 	guaranteed 	to 	them 	by
this 	chapter.
3This 	portion 	of 	the 	charge 	was 	later 	withdrawn. 	See
text 	infra.
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On 	November 	2, 	1979, 	denying 	all 	the 	charges. 	An 	informal
conference 	was 	held 	at 	the 	San Francisco Regional 	Office 	of 	the
Public Employment 	Relations 	Board 	(nereafter 	the 	PERB 	or 	the
Board) 	on November 	5, 	1979, 	at ,which 	it 	was 	agreed 	that 	the
Union 	would 	supply 	a 	Statement 	of 	Particularization 	by
November 	21, 	and 	a 	formal 	hearing 	would 	be 	held 	on December 	11.
On December 	4, 	1979, 	the 	parties 	agreed 	to 	request 	a
continuance 	of 	the 	charge 	so 	that 	it 	could 	be 	consolidated 	with
a 	subsequent 	charge 	anticipated 	by 	the 	Union. 	On 	December 	10,
1979, 	the 	parties 	were 	notified 	by 	the 	hearing 	officer 	that 	the
formal 	hearing 	was 	reset 	for 	January 	23-24, 	1980. 	It 	was
subsequently 	agreed 	that 	the 	charging 	party would 	provide 	the
aforementioned 	Statement 	of 	Particularization, 	along 	with
notice 	of 	the 	anticipated 	charge, 	by January 	15, 	1980.
The 	respondent 	received 	the 	Statement 	of 	Particularization
on 	January 	16, 	1980. 	The -~barging 	party 	indicated 	that 	the
subsequent 	charge 	either 	had 	not 	been 	filed, 	or 	it 	would 	not
seek 	consolidation 	with 	the 	present 	charge. 	Subpoenas 	and
subpoena 	duces 	tecum 	were 	issued 	on January 	21, 	1980. 	The
hearing 	was 	held 	on 	January 	23-24, 	1980, 	at 	Hayward,
California. 	At 	the 	hearing, 	the 	Union 	withdrew 	that 	portion 	of
the 	charge 	which 	alleged 	a 	violation 	of 	section 	3571(f).
FINDINGS 	OF 	FACT
The 	charging 	party, 	CAUSE-SEIU, 	is 	an 	employee 	organization
within 	the 	meaning 	of 	the 	Act. 	The 	respondent, 	California
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State 	University, 	Hayward, 	is 	a 	higher 	education 	employer
within 	the 	meaning 	of 	the 	Act.4
Plant 	operations 	is 	the 	largest'non-academic 	department 	on
the 	Hayward 	campus 	of 	respondent, 	employing 	over 	200 	people,
including 	approximately 	75 	student 	assistants. 	Don Farley 	is
the 	chief 	of 	plant 	operations. 	Under 	him 	are 	two 	assistant
directors, 	Don 	Brooks 	and 	Al 	Dusel, 	an 	administrative
assistant, 	George 	Anderson, 	and 	heads 	of 	various 	sections--
engineers, 	building 	trades, 	custodial 	services, 	and 	grounds.
It 	was 	stipulated 	that 	all 	of 	these 	individuals, 	with 	the
exception 	of 	George 	Anderson, 	are 	managerial 	or 	supervisory
employees 	within 	the 	meaning 	of 	the 	Act.
Prior 	to 	July 	1979, 	the 	procedure 	for 	timekeeping 	in 	plant
operations 	was 	for 	employees 	to 	sign 	in 	on 	a 	master 	time 	sheet
upon 	arrival 	and 	sign 	out 	before 	leaving. 	Employees 	working 	in
diverse 	locations 	on 	campus, 	such 	as 	custodians, 	reported
directly 	to 	their 	worksites. 	Several 	employees 	and 	the
director 	of 	personnel, 	Slade 	Lindeman, 	testified 	that 	this 	was
an 	informal, 	flexible 	system. 	This 	system 	was 	changed 	in July
and 	August 	of 	1979 	when 	employees 	were 	required 	to 	"punch 	jn"
and 	"punch 	out" 	on 	time 	clocks 	at 	a 	central 	location 	and 	follow
stricter 	timekeeping 	procedures. 	It 	is 	the 	implementation 	of
4"Employee 	organization" 	is 	defined 	in 	section 	3562(g).
"Higher 	education 	employer" 	is 	defined 	in 	section 	3562(h).
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this 	new 	time 	clock 	system which 	is 	the 	subject 	of 	this 	unfair
practice 	charge.
Emmett Nannery's 	"Letter 	Writing Campaign"
Emmett 	Nannery 	was 	employed 	in 	plant 	operations 	as 	a
carpenter 	in 	the 	building 	trades 	section. 	He 	had 	been 	an
active member 	of 	the 	California 	State Employees 	Association
(hereafter 	CSEA). 	In mid-1978, 	he 	became 	a member 	of
CAUSE-SEIU 	and 	became 	active 	in 	that 	organization. 	For 	several
years 	prior 	to 	the 	filing 	of 	this 	charge, 	Nannery 	had
complained 	about 	an 	alleged 	"double 	standard" 	of 	time 	reporting
for 	employees 	and 	supervisors, 	alleged 	changes 	by 	supervisors
in 	time 	sheets, 	and 	claimed 	harassment 	by 	his 	own 	supervisor,
Lou Morsilli, 	for 	tardiness. 	These 	complaints 	took 	the 	form 	of
both 	grievances 	and 	letters 	to 	the 	administration.
On October 	10, 	1977, 	Nannery 	filed 	a 	grievance 	with 	a CSEA
representative, 	alleging, •inter 	alia, 	that 	he 	had 	been 	harassed
by 	his 	supervisor 	for 	tardiness 	when 	he 	had 	not 	been 	tardy. 	On
March 	17, 	1978, 	he 	sent 	a 	letter 	to 	Executive 	Dean William
Vandenburg, 	charging 	that 	Administrative 	Assistant 	George
Anderson 	was 	abusing 	his 	lunch 	hour 	by 	taking 	"extended
lunches." 	Vandenburg 	replied 	on April 	17, 	saying 	that 	any
complaints 	about 	Anderson's 	time 	were 	the 	responsibility 	of 	Don
Farley. 	Nannery 	wrote 	back 	to Vandenburg 	on 	April 	26, 	1978,
sending 	a 	copy 	to Farley, 	claiming 	that 	Farley 	had 	not 	done
5

anything 	about 	the 	problem 	and 	that 	he 	had 	been 	subjected 	to
verbal 	abuse 	from 	his 	supervisor 	because 	of 	his 	complaints.
On May 	11, 	1978, 	Nannery made 	f~rther 	allegations
concerning Anderson's 	extended 	lunches, 	also 	sending 	copies 	to
several 	legislators 	and 	University officials. 	Vandenburg
replied 	on May 	25, 	again 	directing Nannery 	to 	go 	through
Farley. 	On June 	9, 	Lou Morsilli, 	Nannery~s 	supervisor.
recommended 	that 	Nannery 	be 	reprimanded 	for 	tardiness 	and
"inappropriate 	language." 	On June 	26, 	1978, 	Nannery 	sent
another 	letter 	to Vandenburg, 	repeating 	his 	allegations 	against
Anderson, 	and 	also mentioning 	"fraudulent 	recording 	of 	time."
Farley 	received 	a 	copy 	of 	this 	letter, 	as 	well 	as 	previous
correspondence. 	On 	January 	24r 	1979, 	Nannery 	sent 	a memo 	to
Vice 	President 	Robert 	A. 	Kennelly 	(again with 	a 	copy 	to Farley}
repeating 	his 	charges, 	and 	also 	alleging 	that 	a 	supervisor 	was
recruiting 	employees 	for 	outside 	work 	during 	normal 	working
hours, 	encouraging 	them 	to 	call 	in 	sick 	so 	that 	they 	could 	be
paid 	twice. 	This 	last 	allegation 	was 	related 	to 	a 	grievance 	on
behalf 	of 	an 	employee 	who 	had 	called 	in 	sick 	when 	working 	on 	an
outside 	job 	in 	which 	Nannery was 	involved 	as 	a 	representative
of 	the 	charging 	party.
During 	this 	time, 	Nannery 	had 	also 	been 	involved 	in 	several
other 	grievances. 	In 	mid-1978, 	he 	was 	the 	first 	person 	to 	join
CAUSE-SEIU 	in 	plant 	operations, 	becoming 	one 	of 	the 	most 	active
members 	there. 	Overall, 	it 	is 	apparent 	that 	Nannery 	had 	been
6

involved 	in 	a 	prolific 	campaign 	of 	letters 	and 	grievances 	for
several 	years, 	both 	individually, 	and 	as 	a 	representative 	of
CSEA, 	and 	later 	CAUSE-SEIU. 	The 	two main 	thrusts 	of 	this
campaign 	were 	an 	alleged 	"double 	standard" 	and 	claimed 	abuses
of 	timekeeping 	by 	supervisors.
Organizing Activity 	by 	the 	Charging 	Party
In September 	1977, 	Alexis 	Rankin 	began 	organizing 	on 	the
Hayward 	campus 	for 	CAUSE-SEIU. 	In 	mid-1978, 	during 	the
exchange 	of 	correspondence 	between Nannery 	and Vandenburg, 	she
began 	to 	organize 	in 	plant 	operations. 	Nannery was 	the 	first
to 	sign 	up, 	switching 	from 	CSEA. 	Union meetings 	were 	held 	on
campus, 	with 	the 	knowledge 	of Farley. 	Although 	there 	was
conflicting 	testimony 	as 	to 	the 	Union's 	actual 	membership 	in
plant 	operations, 	it 	appears 	that 	this 	was 	one 	of 	the 	Union's
strongest 	areas 	on 	campus.
When 	the 	decision 	was-announced 	to 	institute 	time 	clocks,
CAUSE-SEIU, 	along 	with 	Nannery, 	became 	associated 	with
opposition 	to 	the 	new 	system, 	and 	much 	of 	the 	Union 	activity 	in
plant 	operations 	centered 	around 	this 	issue.
On July 	2, 	1979, 	the 	charging 	party 	filed 	a 	petition 	for
certification 	with 	the 	Public Employment 	Relations 	Board,
seeking 	to 	represent 	a 	systemwide 	unit 	of 	non-craft maintenance
personnel 	in 	the 	California State University 	system, 	which
would 	include 	most 	of 	the 	Hayward 	plant 	operations 	employees.
7

CSEA 	also 	filed 	a 	petition 	for 	a 	similar 	systemwide 	unit 	of
both 	skilled 	and 	unskilled 	employees.
The 	Decision 	to 	Switch 	to Time 	Cloc~s
Don 	Farley 	was 	responsible 	for 	the 	decision 	to 	use 	time
clocks 	in 	plant 	operations. 	Although 	the 	record 	is 	vague 	as 	to
the 	exact 	time 	the 	decision 	was 	made, 	it 	was 	undoubtedly 	before
January 	15, 	1979, 	when 	the 	clocks 	were 	ordered.
On May 	9, 	1978, 	Ed Nordstrom, 	the 	business 	manager, 	wrote 	a
memo 	to 	the 	effect 	that 	"as 	a 	result 	of 	Emmett 	Nannery's
concerns," 	there 	should 	be 	a 	review 	of 	timekeeping 	procedures
in 	plant 	operations. 	Time 	clocks 	were 	not mentioned 	in 	this
memo. 	Vandenburg 	testified 	that 	Farley 	first 	mentioned 	the
subject 	of 	time 	clocks 	to 	him 	in 	the 	spring 	of 	1978~ 	and 	that
he 	subsequently made 	inquiries 	within 	the 	administration 	for
Farley.
The 	first 	documented 	reference 	to 	time 	clocks 	occurred 	on
August 	15, 	1978, 	when Vandenburg 	reported 	to Farley 	that
conversion 	to 	time 	clocks 	had 	received 	"tacit 	approval" 	in 	the
administration. 	Farley 	testified 	that 	in 	the 	fall 	of 	1978, 	he
asked 	Slade 	Lindeman, 	the 	personnel 	director, 	whether
implementing 	time 	clocks 	would 	be 	0 legal." 	Lindeman 	confirmed
that 	it 	was. 	On December 	1, 	1978, 	Vandenburg 	asked Farley 	to
prepare 	a 	written 	procedure 	regarding 	the 	recording 	and
movement 	of 	personnel 	records, 	referring 	to Nordstrom's 	memo of
May 	9, 	and 	specifically mentioning 	time 	clocks. 	On January 	15,
8

1979, 	two 	time 	clocks 	were 	ordered.
Request 	to Meet 	and Confer
Plant 	operations 	employees 	first 	became 	aware 	of 	the
decision 	to 	switch 	to 	time 	clocks 	after 	Farley 	sent 	a memo
announcing 	the 	decision 	to 	his 	supervisors, 	dated 	February 	6,
1979. 	On March 	21, 	CAUSE-SEIU made 	a 	request 	to meet 	and
confer, 	simultaneously 	distributing 	a 	leaflet 	among employees
(with 	a 	copy 	delivered 	to Farley) 	protesting 	the 	time 	clock
decision 	and 	listing 	Emmett 	Nannery 	as 	the 	Union 	representative
in 	plant 	operations. 	Before 	a 	formal 	response 	to 	the 	Union's
request 	was 	issued, 	Farley 	sent 	the 	following 	memo 	to Nannery,
Vandenburg, 	and 	all 	plant 	operations 	supervisors:
Your 	letter 	writing 	campaign 	has 	resulted 	in
a 	through 	(sic) 	review 	of 	the 	timekeeping 	in
plant 	operations. 	Installing 	time 	clocks 	is
the 	last 	step 	in 	that 	review process. 	With
your 	concurrence, 	I 	would 	like 	to 	place 	this
plaque 	on 	each 	of 	the 	clocks.
This 	time 	clock 	installed 	to 	commemorate
EMMETT 	NANNERY's
contributions 	to 	accurate 	timekeeping
c.s.u.H.5
5Nannery 	testified 	that 	he 	talked 	to Farley 	about 	this
"plaque memo" 	after 	he 	took 	a 	couple 	days 	to 	"cool 	off."
According 	to Nannery, 	when 	he 	asked 	Farley 	what 	was 	the 	reason
for 	the 	memo, 	Farley 	pulled 	out 	a 	file 	and 	pointed 	to 	a 	letter
which, 	by 	Nannery's 	description, 	appeared 	to 	be 	one 	of 	the
letters 	sent 	to Vandenburg 	by Nannery. 	Farley 	did 	not 	recall
9

On April 	2, 	Ellis McCune, 	president 	of 	the 	Hayward 	campus,
formally 	replied 	to 	the 	Union's 	request, 	naming Vandenburg 	as
his 	representative 	to meet 	wi.th 	the'Union. 	On April 	20, 	before
the 	meeting 	took 	place, 	the 	time 	clocks 	were 	installed.
On April 	26, 	a meeting 	was 	held 	at 	which 	representatives 	of
both 	the 	Union 	and 	the 	University were 	present. 	At 	that
meeting, 	the 	Union 	protested 	the University's 	failure 	to meet
before 	the 	clocks 	were 	installed, 	and 	made 	two 	requests 	-- 	that
Vandenburg 	meet 	with 	all 	plant 	operations 	employees 	to 	discuss
time 	clocks, 	and 	that 	a 	vote 	be 	taken 	among 	employees 	on 	the
subject. 	At 	the 	end 	of 	the 	meeting, 	the 	Union 	presented 	a
grievance, 	signed 	by 	39 	employees, 	alleging 	that 	the 	University
violated 	section 	3530 	of 	the Government Code 	(which 	was 	then
still 	in 	effect) 	by 	failing 	to meet 	and 	confer 	prior 	to 	the
installation of 	the 	time 	clocks.
On May 	8, 	1979, 	the 	University 	responded 	to 	both 	the
grievance 	and 	the 	Union~s 	requests. 	Vice 	President 	of
Administration Robert 	Kennelly 	found 	the 	grievance 	not 	within
the 	scope 	of 	the 	grievance 	procedure 	and 	dismissed 	it.
Vandenburg 	partially 	granted 	the 	Union's 	request 	for 	a meeting
with 	all 	plant 	operations 	employees 	by 	arranging 	a 	series 	of
any 	such 	meeting. 	However, 	because 	of 	Farley's 	general
evasiveness 	on 	this 	matter 	during 	his 	testimony, 	it 	is 	found
that 	Nannery's 	testimony on 	this 	matter 	is 	essentially 	correct.
10

three 	meetings 	on May 	11. 	The 	request 	for 	an 	election 	on 	the
matter 	was 	denied.
At 	the May 	11 	meetings, 	Vandenburg 	and 	Farley 	discussed 	the
reasons 	for 	installing 	the 	time 	clocks 	and 	the 	procedures 	for
implementing 	them, 	while many employees 	expressed 	their
dissatisfaction 	with 	the 	decision. 	The Union 	conducted 	its 	own
election 	on May 	20, 	reporting 	an 	overwhelming 	majority of 	those
voting 	were 	against 	time 	clocks.
On July 	6, 	another 	meeting 	was 	held 	at 	the 	request 	of 	the
Union 	(the 	only meeting 	after 	the 	effective 	date 	of 	the 	Act).
The 	result 	of 	the 	vote 	was 	presented. 	(There 	is 	a 	dispute 	as
to 	whether 	the 	accusation 	that 	the 	time 	clocks 	were 	being
installed 	in 	retaliation 	for 	Union 	activity was 	made 	at 	this
meeting. 	That 	dispute 	need 	not 	be 	resolved 	here.) 	President
McCune 	wrote 	to 	the 	Union 	on July 	19, 	indicating 	that 	after
reviewing 	the 	matter, 	he 	fiad 	decided 	it 	was 	best 	to 	continue
plans 	to 	implement 	the 	time 	clocks.
On July 	16, 	1979, 	employees 	were 	required 	to 	use 	the 	time
clocks, 	in 	stages. 	Office 	staff, 	including 	Farley, 	were 	the
first 	to 	use 	the 	new 	system. 	Then 	each 	section 	of 	plant
operations, 	one-by-one, 	was 	required 	to 	punch 	in 	at 	a 	central
location. 	Along 	with 	the 	actual 	use 	of 	the 	time 	clocks, 	the
accompanying 	procedures 	developed 	by Farley were 	implemented.
The Union made 	a 	request 	to meet 	and 	confer 	on September 	24,
which 	was 	denied. 	This 	charge 	was 	filed 	on October 	10.
11

Subsequent 	to 	the 	filing 	of 	this 	charge, 	the 	University 	denied
another 	request 	by 	the 	Union 	to meet 	and 	confer. 	The
systemwide 	policy of 	the 	University'was 	that 	it 	no 	longer 	had
any 	obligation 	to meet 	and 	confer 	with 	an 	employee 	organization
which 	was 	not 	an 	exclusive 	representative 	according 	to 	the
Act. 	The 	University 	also 	dismissed 	a 	grievance 	which 	was
essentially 	a 	copy of 	the 	April 	26 	grievance.
STATEMENT OF THE 	ISSUES
1. 	Can 	evidence 	of 	conduct 	prior 	to 	the 	six-month
limitation 	period 	of 	section 	3563.2(a) 	or 	prior 	to 	the
effective 	date 	of 	the Act 	be 	used 	to 	shed 	light 	on 	the 	true
motive 	for 	the 	implementation 	of 	time 	clocks, 	or 	does 	reliance
on 	such 	evidence 	bar 	the 	charge 	as 	untimely?
2. 	was 	the 	implementation 	of 	time 	clocks 	in 	plant
operations 	a 	reprisal 	for 	protected 	activity?
3. 	What 	statutory duty, 	if 	any, 	does 	the 	employer 	have 	to
meet 	and 	consult 	with 	a 	nonexclusive 	representative 	before 	an
exclusive 	representative 	is 	chosen?
4. 	Did 	the 	refusal 	of 	the 	University 	to 	consider 	the
merits 	of 	grievances 	filed 	by 	the 	charging 	party 	violate
section 	357l(a) 	and 	(b)?
DISCUSSION
The 	Charge 	is 	not 	Barred 	by 	Section 	3563.2(a)
In 	its 	brief, 	the 	University 	asked 	that 	this 	charge 	be
dismissed 	as 	untimely 	filed, 	or, 	in 	the 	alternative, 	that 	all
12

evidence 	prior 	to 	the 	six-month 	limitation 	period 	be 	excJuded.
For 	the 	reasons 	discussed 	below, 	it 	is 	found 	that 	the 	charge
was 	timely 	filed, 	and 	that 	evidence'prior 	to 	the 	six-month
limitation 	period 	may 	be 	considered 	in 	providing 	background 	to
the 	employer's 	action 	within 	the 	statute 	of 	limitations.
Section 	3563.2(a) 	provides, 	in 	relevant 	part, 	that:
..• 	the 	board 	shall 	not 	issue 	a 	complaint
in 	respect 	of 	any 	charge 	based 	upon 	an 	.
alleged 	unfair 	practice 	occurring 	more 	than
six months 	prior 	to 	the 	filing 	of 	the 	charge.
This 	charge 	was 	filed 	on October 	10, 	1979. 	Therefore, 	any
conduct 	prior 	to April 	10 may 	not 	be 	the 	basis 	for 	an 	unfair
practice 	charge. 	The Act 	became 	effective 	on July 	1, 	1979.
Therefore, 	conduct 	before 	this 	date 	similarly may 	not 	be 	the
basis 	for 	an 	unfair 	practice 	charge. 	The 	University 	points 	out
that, 	although 	the 	time 	clocks 	were 	implemented 	both 	within 	the
statute 	of 	limitations 	and 	after 	the 	effective 	date 	of 	the Act,
the 	decision 	to 	implement 	the 	time 	clocks, 	and 	the 	announcement
to 	employees 	of 	the 	decision, 	occurred 	before 	the 	six-month
limitation 	period.
The 	basis 	for 	this 	charge, 	however, 	is 	not 	the 	decision 	to
implement 	time 	clocks, 	but 	the 	actual 	implementation. 	It 	was
this 	act 	which 	arguably 	constituted 	a 	retaliation 	for 	union
activity. 	Before 	this, 	the 	employer's 	actions 	constituted 	only
an 	arguable 	threat 	of 	reprisal, 	not 	a 	reprisal 	itself. 	(A
• 	threat 	of 	reprisal 	could 	constitute 	a 	separate 	and 	distinct
violation 	under 	circumstances 	other 	than 	those 	alleged 	here.)
13

Similarly, 	in Oceanside-Carlsbad 	Federation of 	Teachers 	(1979)
PERB 	Decision No. 	89, 	the 	Board 	ruled 	that 	the 	six-month
limitation 	period 	did 	not 	begin 	to 	tun 	when 	the 	decjsJo~ 	to
transfer 	a 	teacher 	was 	made, 	but 	when 	the 	actual 	transfer
occurred.
Respondent 	also 	argues 	that 	all 	evidence 	dated 	prior 	to
April 	10, 	1979, 	and 	all 	testimony 	as 	to 	events 	prior 	to 	that
date, 	should 	be 	excluded. 	This 	raises 	the 	question of 	whether
section 	3563.2(a) 	can operate 	as 	a 	rule 	of 	evidence, 	as 	well 	as
a 	statute 	of 	limitations.
Section 	3563.2(a) 	of 	the 	Government 	Code 	is 	similar 	to
section 	l0(b) 	of 	the 	National 	Labor 	Relations 	Act6. 	The
leading 	case 	interpreting 	section 	l0(b) 	of 	the 	NLRA 	is 	IAM
Local 	Lodge 	1424 	v. 	NLRB 	(1960) 	362 	U.S. 	411 	[45 	LRRM 	3212].
There, 	a 	party 	sought 	to 	block 	the 	enforcement 	of 	an 	otherwise
legal 	contract, 	which 	was.illegally 	entered 	into 	without
majority 	support 	before 	the 	six-month 	limitation 	period, 	by
means 	of 	an 	unfair 	practice 	charge. 	The Court 	found 	the 	charge
was 	based 	on 	the 	formation 	of 	the 	contract, 	not 	its
enforcement, 	and 	the 	charge 	therefore 	was 	barred. 	In
629 	u.s.c. 	151 	et 	seq. 	Feder.al 	precedent 	interpreting
similar 	provisions 	of 	federal 	labor 	law may 	be 	used 	as 	guidance
in 	interpreting California 	labor 	legislation. 	Fire Fighters 	v.
City 	of Vallejo 	(1974) 	12 	Cal.3d 	608 	[116 	Cal. 	Rptr. 	5 	7)1
Sweetwater 	Union High 	School 	District 	(1976) 	PERB 	Decision
No. 	4.
14

distinguishing 	those 	situations 	where 	section 	l0(b)
also 	operates 	as 	a 	rule 	of 	evidence, 	the Court 	said:
•.• 	due 	regard 	for 	the 	purposes 	of
section 	l0(b) 	requires 	that 	two 	different
kinds 	of 	situations 	be 	distinguished. 	The
first 	is 	one 	where 	occurrences 	within 	the
six-month 	limitations period 	in 	and 	of
themselves 	may 	constitute, 	as 	a 	substantive
matter, 	unfair 	labor 	practices. 	There,
earlier 	events 	may 	be 	utilized 	to 	shed 	light
on 	the 	true 	character 	of 	matters 	occurring
within 	the 	limitations 	period: 	and 	for 	that
purpose, 	section 	l0(b) 	ordinarily 	does 	not
bar 	such 	evidentiary 	use 	of 	anterior
events. 	The 	second 	situation 	is 	that 	where
conduct 	occurring 	within 	the 	limitations
period 	can 	be 	charged 	to 	be 	an 	unfair 	labor
practice 	only 	through 	reliance 	on 	an 	earlier
unfair 	labor 	practice. 	There, 	the 	use 	of
the 	earlier 	unfair 	labor 	practice 	is 	not
merely 	"evidentiary," 	since 	it 	does 	not
simply 	lay 	bare 	a 	putative 	current 	unfair
labor 	practice. 	Rather, 	it 	serves 	to 	cloak
with 	illegality 	that 	which 	was 	otherwise
lawful 	(362 	U.S. 	at 	416-17, 	45 LRRM 	at
3214-15).
Later 	cases 	applying 	Local 	Lodge 	have 	emphasized 	the 	time 	at
which 	the 	aggrieved 	party 	could 	have 	filed 	a 	charge 	as
determinative. 	See 	e.g., 	NLRB 	v. 	Longshoremen 	(9th Cir. 	1977)
549 	F.2d 	698 	[94 	LRRM 	3072]: 	Communication Workers 	v. 	NLRB 	(2d
Cir. 	1975) 	520 	F.2d 	411 	[84 	LRRM 	3028]. 	In 	Beckett Aviatlon
Corp. 	(1975) 	218 	NLRB 	238 	[89 LRRM 	1341], 	the NLRB 	ruled 	that
pre-limitation 	interrogations 	and 	threats 	by 	an 	employer 	are
barred 	as 	independent 	charges 	by 	section 	l0(b), 	but 	they 	still
may 	be 	used 	to 	prove 	unlawful 	motivation 	for 	conduct 	within 	the
limitation 	period.
15

Applying 	Local 	Lodge 	and 	subsequent 	cases 	to 	the 	instant
case, 	it 	is 	apparent 	that 	this 	unfair 	practice 	falls 	within 	the
first 	category 	described 	in Local 	Lodg!. 	That 	is,
pre-limitation 	conduct 	may 	be 	used 	to 	"shed 	light" 	on 	the
motivation 	for 	the 	implementation of 	the 	time 	clocks. 	Such
evidence 	would 	tend 	to 	show 	the 	intent 	of 	the 	respondent 	in
implementing 	time 	clocks 	and 	the 	protected 	activity 	of
employees 	for 	which 	this 	action 	was 	allegedly 	a 	reprisal.
Motive 	is 	an 	element 	in 	a 	reprisal 	case.
More 	important, 	it 	is 	not 	necessary 	to 	establish 	the
illegal 	nature 	of 	the 	announcement 	of 	the 	decision 	to 	implement
time 	clocks 	in 	order 	to 	find 	that 	the 	implementation 	itself 	was
illegal, 	unlike ~ocal 	Lodge, 	where 	it 	was 	necessary 	to 	prove
the 	illegality of 	the 	agreement 	in 	order 	to 	find 	the
enforcement 	of 	the 	agreement 	illegal. 	What 	must 	be 	proven 	here
is 	unlawful 	motive 	for 	the 	conduct. 	And, 	relevant 	evidence 	of
unlawful 	motivation may 	go 	back 	long 	before 	the 	action 	on 	which
an 	unfair 	practice 	allegation 	is 	based. 	It 	would 	defeat 	the
purposes 	of 	the 	Act 	to 	"ignore 	reliable, 	probative, 	and
substantial 	evidence 	as 	to 	the 	meaning 	and 	the 	nature 	of 	the
conduct." 	Local 	Lodge, 	supra, 	at 	417 	[45 	LRRM 	at 	3215],
quoting 	from Axelson Mfg. 	Co. 	(1950) 	88 	NLRB 	761, 	766 	[25 	LRRM
1388].
For 	similar 	reasons, 	pre-Act 	conduct 	by 	the 	employer 	and
pre-Act 	protected 	activities 	by 	the 	employees may 	be 	used 	to
16

prove 	unlawful 	motivation 	for 	post-Act 	conduct. 	To 	hold
otherwise 	would 	effectively 	postpone 	the 	date 	when 	parties
would 	be 	protected 	by 	the 	provisions 	of 	the 	Act. 	See 	Radiant
Mills 	Co~ 	(1936) 	1 	NLRB 	274 	(1 	LRRM 46]; 	Kawano, 	Inc. 	(1977) 	3
ALRB 	No. 	54. 	This 	is 	not 	a 	case 	where 	the 	unlawful 	conduct
itself 	occurred 	before 	the 	effective 	date 	of 	the 	Act, 	as 	in
Petrone 	v. 	Pasadena Unified 	School 	District 	(5/12/77) 	PERB
Decision No. 	16 	(dismissing 	a 	charge 	based 	entirely on 	pre-Act
conduct).
The 	Implementation 	of 	Time Clocks 	was 	a 	Reprisal 	for 	Protected
Activity
In Oceanside-Carlsbad Federation 	of 	Teachers 	v. 	Carlsbad
Unified 	School 	Distr~ct 	(1/30/79) 	PERB 	Decision No. 	89, 	the
Board 	established 	a 	test 	to 	be 	used 	to 	determine 	whether 	there
has 	been 	a 	violation 	of 	section 	3543.5(a) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA), 	which 	is 	identical 	to
section 	3571(a} 	of 	HEERA.7 	First, 	" •.• 	a 	charge 	will 	be
sustained 	where 	it 	is 	shown 	that 	the 	employer 	would 	not 	have
engaged 	in 	the 	complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose 	or 	intent." 	Oceanside-Carlsbad, 	supra.
Second, 	a 	charge 	will 	be 	sustained 	if 	either, 	(a) 	the 	harm 	is
inherently 	destructive 	of 	employees' 	rights 	and 	the 	employer's
7see 	fn. 	1, 	supra, 	for 	full 	text 	of 	section 	357l(a).
17

conduct 	was 	not made 	necessary 	by 	circumstances 	beyond 	its
control 	where 	there 	was 	no 	alternative; 	or 	(b), 	there 	is 	slight
harm 	to 	the 	employees' 	rights 	and 	the 	harm 	outweighs 	any
operational 	necessity which 	may 	justify 	the 	action.
In 	the 	present 	case, 	it 	is 	found 	that 	"but 	for" 	the
employer's 	unlawful 	motive, 	the 	time 	clocks 	would 	not 	have 	been
implemented. 	Therefore, 	it 	is 	not 	necessary 	to 	determine
whether 	the 	harm 	is 	slight 	or 	inherently 	destructive.
A. 	The 	Protected Activity
"[S]ome 	nexus 	must 	exist 	between 	the 	exercise 	of 	employee
rights 	under 	the 	[HEERA] 	and 	the 	actions 	of 	the 	employer 	which
have 	provoked 	the 	filing 	of 	an 	unfair 	practice 	charge."
Oceanside-Carlsba,d .- 	_supra. 	In 	the 	present 	case, 	this 	protected
activity 	includes 	the 	grievances 	and 	"letter 	writing 	campaign"
of 	Emmett 	Nannery, 	the 	continujng 	organizing 	activities 	by 	the
charging 	party, 	and 	the 	continuting 	opposition 	to 	time 	clocks
itself.
There 	is 	no 	question 	that 	the 	filing 	of 	grievances 	is 	a
right 	of 	employees 	and 	therefore 	"protected 	activity."
Neilman 	v. 	Baldwin Park 	Unified 	School 	District 	(1979) 	PERB
Decision No. 	92. 	Nannery's 	"letter 	writing 	campaign," 	though
not 	a 	formal 	grievance, 	was 	conducted 	for 	the 	purpose 	of
adjusting 	employer-employee 	relations 	on 	behalf 	of 	himself
(harassment 	by 	his 	supervisor 	for 	tardiness) 	and 	other
employees 	(£raudulent 	recording 	of 	time, 	the 	"double
standard"). 	Such 	complaints 	also 	constitute 	protected 	activity.
18

See 	Springfield 	Library 	and Museum Association 	(1978) 	238 	NLRB
No. 	221 	[99 	LRRM 	1289].
In mid-1978, 	CAUSE-SEIU began 	to 	organize 	in 	plant
operations. 	This 	was 	the 	same 	time 	that Nannery was
corresponding 	with Dean Vandenburg. 	It 	was 	then 	that 	Nannery
joined SEIU 	and 	became 	one 	of 	its 	most 	active members, 	listed
as 	the 	"representative" 	of 	the 	Union 	in 	plant 	operations.
Union 	organizer 	Alexis 	Rankin 	testified 	that 	there 	was 	a 	great
deal 	of 	Union 	activity 	in 	plant 	operations 	subsequent 	to 	this,
which 	was 	known 	to Farley 	and 	the 	administration. 	Once 	the
decision 	to 	implement 	time 	clocks 	became 	known 	to 	employees,
this 	became 	a 	major 	issue 	of 	the 	Union. 	As 	pointed 	out 	in
respondent's 	brief, 	no 	other 	employee 	organization 	protested
the 	time 	clocks.
These 	protected 	activities, 	the 	grievances, 	the 	"letter
writing 	campaign," 	and Union 	organizing, 	are 	all 	connected
through 	Emmett 	Nannery 	and 	to 	the 	response 	to 	this 	activity,
the 	time 	clocks. 	Although much 	of 	this 	activity 	occurred
before 	the 	effective 	date 	of 	the 	Act, 	it may 	be 	used 	to 	show
the 	unlawful 	motivation of 	the 	employer. 	And, 	it 	is 	manifest
that 	the 	activity 	and 	the 	employer's 	"response" 	to 	it 	continued
both 	in 	fact 	and 	in 	effect, 	well 	beyond 	the 	operative 	date 	of
the 	Act. 	Most 	importantly, 	the 	retaliation 	itself 	occurred
after 	the 	effective 	date. 	Freedom from 	retaliation 	for
organizational 	activity 	is 	the 	statutory 	right 	at 	stake 	here.
See 	Radiant Mills 	Co. 	(1936) 	1 	NLRB 	274 	[1 	LRRM 	46]. 	The
19

employer's 	action, 	if 	not 	remedied, 	could 	have 	a 	chilling
effect 	on 	future 	protected 	conduct 	by 	employees, 	and 	could 	tend
to 	influence 	the 	representation 	election 	now 	pending.
B. 	"But 	for" 	the 	Protected Activity of 	Nannery 	and 	the 	Union,
the 	Time 	Clocks Would 	Not 	Have 	Been 	Implemented
In 	proving 	unlawful 	intent, 	the 	Board 	said, 	in Oceanside-
Carlsbad, 	supra:
Unlawful 	motivation, 	purpose 	or 	intent 	is
essentially 	a 	state 	of 	mind, 	a 	subjective
condition 	generally 	known 	only 	to 	the
charged 	party. 	Direct 	and 	affirmative 	proof
is 	not 	always 	available 	or 	possible.
However, 	following 	generally 	accepted 	legal
principles, 	the 	presence 	of 	such 	unlawful
motivation, 	purpose 	or 	intent may 	be
established 	by 	inference 	from 	the 	entire
record. 	[Footnote 	omitted.]
The 	National 	Labor 	Relations 	Board 	and 	the 	federal 	courts 	have
developed 	a 	set 	of 	legal 	principles 	for 	establishing 	unlawful
intent 	in order 	to 	prove 	discrimination 	in 	violation of
section 8(a) (3) 	of 	the 	Labor-Management Relations 	Act.8
8section 	8(a} (3) 	of 	the 	Labor-Management 	Relations 	Act
reads, 	in 	relevant 	part:
[It 	shall 	be 	an 	unfair 	labor 	practice 	for 	an
employer-] 	by 	discrimination 	in 	regard 	to
hire 	or 	tenure 	of 	employment 	or 	any 	term 	or
condition 	of 	employment 	to 	encourage 	or
discourage 	membership 	in 	any 	labor
organization~ 	..•
See 	fn. 	6, 	supra, 	regarding 	the 	applicability of 	federal
precedent 	where 	a 	provision 	of 	a 	federal 	labor 	statute 	is
analogous 	to 	that 	of 	a 	state 	labor 	statute.
20

Under 	federal 	precedent" •.• 	specific 	evidence 	of 	intent
to 	encourage 	or 	discourage 	is 	not 	an 	indispensable 	element 	of
proof •.•• " 	Radio Officers 	Union 	v. 	NLRB 	(1954) 	347 	U.S. 	17,
[33 	LRRM 	2417, 	2428]. 	"[W]hen 	specific evidence 	of 	a
subjective 	intent 	to 	discriminate 	or 	to 	encourage 	or 	discourage
Union membership 	is 	shown, 	and 	found, 	many otherwise 	innocent
or 	ambiguous 	actions 	which 	are 	normally 	incident 	to 	the 	conduct
of 	a 	business 	may, 	without more, 	be 	converted 	into 	unfair 	labor
practices." 	NLRB 	v. 	Erie 	Resistor 	Corp. 	(1963) 	373 	U.S. 	221,
227 	[53 	LRRM 	2121, 	2124]. 	Such 	an 	evidentiary 	standard 	is
appropriate 	here, 	as 	well.
Here, 	however, 	there 	is 	direct 	evidence 	that 	the 	time
clocks 	were 	in 	response 	to, 	at 	least, 	the 	"letter 	writing
campaign" 	by 	Nannery. 	Farley's 	"plaque" 	memo, 	claiming 	that
the 	time 	clocks 	were 	being 	installed 	as 	a 	result 	of 	the 	"letter
writing 	campaign," 	and 	commemorating 	"Emmett Nanne.ry' s
contributions 	to 	accurate 	timekeeping," 	is 	possibly 	the 	closest
thing 	to 	a 	direct 	admission of 	unlawful 	intent. 	Although
Farley 	testified 	that 	this memo 	was 	just 	a 	joke, 	the
circumstantial 	evidence 	surrounding 	the 	memo 	only 	confirms
Farley's 	true 	intent. 	It 	was 	sent 	not 	only 	to Nannery, 	but 	to
all 	plant 	operations 	supervisors 	and Dean Vandenburg. 	Plant
operations 	employees 	also 	saw 	the memo. 	The memo 	was 	issued
within 	days 	of 	the 	Union's 	first 	request 	to meet 	and 	confer,
and 	the 	accompanying 	distribution 	of 	a 	leaflet 	protesting 	time
21

clocks 	which 	listed 	Emmett 	Nannery 	as 	one 	of 	the 	plant
operations 	representatives 	for 	the 	Union, 	both of 	which 	were
sent 	to Farley 	just 	prior 	to 	his memo. 	A statement 	coercive
enough 	to 	interfere 	with 	employee 	rights 	need 	not 	be 	an
explicit 	denial 	of 	those 	rights. 	See 	Rio Hondo Community
College 	District 	(1980) 	PERB 	Decision No. 	128, 	concurring
opinion, 	pp. 	26-27.
The 	timing 	of 	several 	actions 	by 	the 	respondent
suspiciously 	follows 	on 	the 	heels 	of 	protected 	activity.
Farley 	testified 	that 	he 	made 	the 	decision 	to 	implement 	time
clocks 	approximately 	in August. 	This 	would 	immediately 	follow
both Nannery's 	"letter 	writing 	campaign" 	and 	the 	beginning 	of
organizing 	activity 	by 	SEIU 	in 	plant 	operations. 	As 	mentioned
above, 	the 	"plaque 	memo" 	immediately 	followed 	the 	Union's 	meet
and 	confer 	request 	and 	accompanying 	leaflet. 	Finally,
employees 	were 	required 	to 	actually 	use 	the 	time 	clocks 	shortly
after 	the 	petition 	for 	certification 	had 	been 	filed 	by 	CAUSE-
SEIU. 	Although 	the 	timing 	of 	each 	of 	these 	actions 	alone 	may
be 	explained 	by 	coincidence, 	together 	they 	suggest 	a 	pattern 	of
unlawful 	intent 	to 	discourage 	and 	disparage 	protected 	activity,
and 	cast 	the 	responsibility 	for 	implementing 	the 	time 	clocks 	on
Nannery 	and 	the 	Union.
Farley 	also 	admitted 	that 	he 	knew 	the 	time 	clocks 	would 	be
met 	by 	resistance. 	He 	found 	it 	necessary 	to 	consult 	with 	the
Personnel 	Director 	as 	to 	whether 	it 	was 	legal. 	The 	hearing
22

officer 	also 	takes 	note 	of 	the 	fact 	that 	time 	clocks 	can 	be
viewed 	as 	demeaning 	to 	employees, 	and 	may 	be 	used 	effectively
as 	a 	symbol 	of 	stricter 	working 	conditions 	which 	would 	be
imposed 	if 	the 	employees 	"brought 	in 	the Union." 	See 	e.g.,
Jocquel 	Supply Co. 	(1971) 	192 	NLRB 	485 	[77 	LRRM 	1909], 	finding
time 	clocks 	part 	of 	a 	course 	of 	action 	to 	penalize 	workers 	for
support 	of 	a 	Union. 	See 	also, 	Knapp Foods, 	Inc. 	(1980)
247 	NLRB 	No. 	146 	[103 	LRRM 	1276]: 	Sevakis 	Industries, 	Inc.
(1978) 	238 	NLRB 	No. 	50 	[99 	LRRM 	1682].
Respondents 	raise 	the 	defense 	of 	legitimate 	business
justification 	for 	the 	time 	clocks. 	In 	fact, 	they 	claim, 	the
time 	clocks 	were 	but 	a 	legitimate 	response 	to 	the 	"concerns
raised 	by 	Emmett 	Nannery." 	Nannery's 	testimony made 	it 	clear.
that, 	both 	at 	the 	time 	of 	his 	grievances 	and 	after 	the 	plaque
memo, 	time 	clocks 	were 	far 	from 	what 	he 	envisioned 	as 	an
innocuous 	~olution. 	He 	was 	so 	insulted 	by 	the 	"plaque" 	memo
that 	he 	had 	to 	"cool 	off" 	for 	a 	couple 	days 	before 	seeing
Farley 	in 	order 	to 	avoid 	losing 	his 	temper. 	Several 	other
employees 	in 	addition 	to Nannery 	testified 	that 	the 	time 	clocks
did 	not 	alleviate 	any 	of 	the 	timekeeping 	or 	attendance
problems, 	and may, 	in 	fact, 	have 	aggravated 	them. 	Ed
Nordstrom, 	the 	personnel 	director, 	admitted 	that 	most 	of 	the
problems 	in 	plant operations 	were 	"supervisory," 	and 	would 	not
be 	solved 	by 	time 	clocks.
Time 	clocks 	are 	rare 	in 	the 	California State University 	and
23

College 	system, 	a 	fact 	which makes 	their 	implementation 	appear
to 	be 	more 	in 	the 	nature 	of 	a 	reprisal. 	See 	e.g., 	Nathan
Littauer 	Hospital 	Association 	(1977j 	229 	NLRB 	1122 	(95 	LRRM
1296], 	involving 	a 	failure 	to 	negotiate 	over 	the 	imposition 	of
time 	clocks 	for 	nurses. 	Time 	clocks 	have 	been 	used 	in 	the
library 	and 	the 	admissions 	and 	records 	office 	of 	the 	Hayward
campus, 	but 	respondent 	offered 	no 	evidence 	as 	to 	any
improvement 	in 	these 	departments 	after 	time 	clocks 	were
implemented. 	Although 	respondent 	points 	to 	the 	size 	and
diverse 	wor~ 	locations 	of 	plant 	operations, 	it 	offers 	no
explanation 	as 	to why 	other 	campuses 	did 	not 	find 	a 	need 	to 	use
time 	clocks 	in 	plant 	operations, 	nor 	has 	it 	offered 	any
evidence 	to 	show 	that 	this 	was 	a 	factor 	in 	the 	decision.
Where 	a 	"duaJ. 	motive" 	for 	an 	employer's 	action may 	exist,
several 	tests 	have 	been 	proposed 	regarding 	how 	dominant 	a 	role
the 	unlawful 	motive 	must 	play. 	See Morris, 	The 	Developing
Labor 	Law 	(1978 	supplement) 	pp. 	25-26. 	The 	"but 	for" 	test
described 	in Oceanside-Carlsbad 	is 	similar 	to 	that 	enunciated
by 	the U.S. 	Supreme Court 	in Mt. 	Healthy City Board 	of
Education 	v. 	~oyle 	(1977) 	429 	U.S. 	274 	(50 	L.Ed.2d 	471],
involving 	the 	firing 	of 	a 	teacher 	for 	constitutionally
protected 	conduct. 	The 	court 	ruled 	that 	the 	plaintiff 	must
first 	prove 	that 	the 	constitutionally 	protected 	conduct 	was 	a
"substantial 	factor" 	or 	"motivating 	conduct" 	in 	the 	decision.
The 	defendant 	must 	then 	rebut 	and 	prove 	by 	the 	preponderance 	of
24

the 	evidence 	that 	it 	would 	have 	reached 	the 	same 	decision
without 	the 	protected 	conduct.9 	See 	also Bekiaris 	v. 	Board
of Education 	(1972) 	6 Cal.3d 	575 	[100 	Cal. 	Rptr. 	16]; 	NLRB 	v.
South Shore 	Hospital 	(1st Cir. 	1978) 	571 	F.2d 	677 	[97 	LRRM
3004], 	enunciating 	similar 	rules, 	and 	the 	discussion 	of 	the
Oceanside-Carlsbad 	"but 	for" 	test, 	supra.
Applying 	the 	"but 	for" 	test 	to 	the 	instant 	case, 	it 	is
found 	that 	respondent 	has 	done 	no more 	than 	suggest
. that
legitimate 	business 	concerns may 	have 	contributed 	to 	the
decision. 	It 	has 	not 	rebutted 	the 	overwhelming 	evidence 	that
the 	decision 	to 	implement 	time 	clocks 	would 	not 	have 	been made
if 	not 	for 	the 	protected 	activity of 	employees. 	In 	fact, 	it 	is
doubtful 	that 	the 	legitimate 	interest 	raised 	by 	respondent
would 	be 	served 	by 	the 	implementation 	of 	time 	clocks.
Finally, 	respondent 	points 	out 	that 	all 	plant 	operations
employees 	are 	required 	to-punch 	time 	clocks, 	including
supervisors 	and 	Farley 	himself. 	This 	was 	done 	at 	the 	request
of 	Dean Vandenburg, 	who was 	concerned 	that 	"otherwise
grievances 	would 	surely 	result." 	This 	did 	not 	diminish 	the
employees' 	dislike 	of 	the 	system, 	however, 	nor 	did 	it 	solve 	the
"supervisory" 	problems. 	It 	is 	also 	in 	line 	with 	the 	message 	of
9The Montana Supreme Court 	recently 	adopted 	this 	test 	in
determining 	unlawful 	motivation 	in 	unfair 	labor 	practice
charges. 	Board 	of 	Trustees 	of 	Billings 	School 	District 	v.
State 	of Montana 	(1980) 	Mont. 	[ 	P. 	2d 	, 	4 PBC
35,856]. 	--
25

the 	"plaque" 	memo--that 	because 	of 	Nannery 	and 	the 	union,
everyone 	now 	had 	to 	use 	time 	clocks.
Duty 	to Meet 	and 	Consult Under 	HEERA
The 	charging 	party has 	alleged 	that 	the 	respondent 	has
denied 	its 	rights 	as 	an 	employee 	organization 	in 	violation 	of
section 	357l(b). 	The 	"rights" 	respondent 	is 	alleged 	to 	have
denied 	include 	the 	right 	to meet 	and 	conferlO 	which, 	it
argues, 	derives 	from 	section 	3565, 	which 	reads:
Higher 	education 	employees 	shall 	have 	the
right 	to 	form, 	join 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of 	meeting 	and 	conferring. 	Higher
education 	employees 	shall 	also 	have 	the
right 	to 	refuse 	to 	join employee
organizations 	or 	to 	participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible 	under 	this 	chapter.
Charging 	party 	contends 	that 	this 	language 	evinces 	a
legislative 	intent 	to 	guarantee 	employees 	the 	right 	to
representation 	before 	an 	exclusive 	representative 	is 	chosen.
This 	argument 	finds 	support 	in 	section 	3560(e), 	legislative
findings:
lOsince 	the 	charging 	party 	is 	not 	an 	exclusive
representative, 	there 	can 	be 	no 	violation 	of 	section 	357l(c),
which 	reads:
Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive
representative. 	[Emphasis 	added.]
26

It 	is 	the 	purpose 	of 	this 	chapter 	to 	provide
the 	means 	by 	which 	relations 	between 	each
higher 	education 	employer 	and 	its 	employees
may 	assure 	that 	the 	.responsibilities 	and
authorities 	granted 	to 	the'separate
institutions 	under 	the 	Constitution 	and
statute 	are 	carried 	out 	in 	an 	atmosphere
which 	permits 	the 	fullest 	participation 	by
employees 	in 	the 	determination of 	conditions
of 	employment 	which 	affect 	them. 	It 	is 	the
intent 	of 	this 	chapter 	to 	accomplish 	thjs
purpose 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	employees 	of 	these
systems 	to 	full 	freedom 	of 	association,
self-organization, 	and 	designation 	of
representatives 	of 	their 	own 	choosin~ 	for
the 	purpose 	of 	representation 	in 	their
employment 	relationships 	with 	their
emploiers 	and 	to 	select 	one 	of 	such
organizations 	as 	their 	exclusive
representative 	for 	the 	purpose 	of meeting
and 	conferring. 	[Emphasis 	added.]
Since 	the Act 	was 	viewed 	as 	an 	extension 	of 	employees' 	rights,
to 	find 	that 	there 	was 	no 	duty 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	would 	leave 	employees 	without 	an
exclusive 	representative 	with 	less 	rights 	than 	previously, 	when
they 	were 	covered 	by 	the 	George 	Brown Act.ll
Respondent 	points 	out, 	however, 	that 	section 	3562(d)
llGov. 	Code 	section 	3525 	et 	seq. 	Section 	3530 	provides:
The 	state 	by means 	of 	such 	boards, 	commissions,
administrative 	officers 	or 	other 	representatives 	as
may 	be 	properly 	designated 	by 	law, 	shall 	meet 	and
confer 	with 	representatives 	of 	employee 	organizations
upon 	request, 	and 	shall 	consider 	as 	fully 	as 	such
representatives 	deem 	reasonable 	such 	presentations 	as
are made 	by 	the 	employee 	organization on 	behalf 	of 	its
members 	prior 	to 	arriving 	at 	a 	determination 	of 	policy
or 	course 	of 	action.
27

defines 	"meet 	and 	confer" 	as 	the, 	"mutual 	obligation 	of 	the
higher 	education 	employer 	and 	the 	exclusive
representat!_ve 	• 	" 	[Emphasis 	added.]12 	Thus, 	the 	duty 	to
meet 	and 	confer 	would 	not 	extend 	to 	nonexclusive
representatives.
In San 	Dieguito Union High 	School 	District 	(9/2/77) 	EERB
Decision No. 	22, 	the 	Boardl3 	held 	that, 	under 	the 	Educational
Employment 	Relations Act, 	there 	was 	no 	duty 	to meet 	and 	confer
with 	a 	nonexclusive 	representative. 	Subsequent 	to 	this
hed,· i ng: 	the 	'Board 	issued 	a 	decision 	in Professional
Engineers
12section 	3562(d) 	reads 	in 	ful.l:
"Meet 	and 	confer" 	means 	the 	performance 	of
the 	mutual 	obligation 	of 	the 	higher
education 	employer 	and 	the 	exclusive
representative 	of 	its 	employees 	to meet 	at
reasonable 	times 	and 	to 	confer 	in 	good 	faith
with 	respect 	to matters 	within 	the 	scope 	of
representation 	and 	to 	endeavor 	to 	reach
agreement 	on 	matters 	within 	the 	scope 	of
representation. 	The 	process 	should 	include
adequate 	time 	for 	resolution of 	impasses.
If 	agreement 	is 	reached 	between
representatives 	of 	the 	higher 	education
employer 	and 	the 	exclusive 	representative,
they 	shall 	jointly 	prepare 	a 	written
memorandum of 	such 	understanding 	which 	shall
be 	presented 	to 	the 	higher 	education
employer 	for 	concurrence. 	However, 	these
obligations 	do 	not 	compel 	either 	party 	to
agree 	to 	any 	proposal 	or 	to 	require 	the
making 	of 	a 	concessJon.
l3The 	PERB 	was 	previously 	known 	as 	the 	Educational
Employment 	Relations 	Board, 	or 	EERB.
28

in 	California Government 	(3/19/80) 	PERB 	Decision No. 	118-S.
Interpreting 	section 	3515.5 	of 	the 	State Employer-Employee
Relations 	Act 	(hereafter 	SEERA), 	whiph 	is 	nearly 	identical 	to
section 	3543.l(a) 	of 	the 	EERA 	interpreted 	in San 	Dieguito, 	the
Board 	held 	that 	there 	was 	a 	duty 	to meet 	and 	discuss 	wages 	with
a 	non-exclusive 	representative. 	Although 	not 	expressly
overruling 	San 	Dieguito, 	since, 	"that 	case 	was 	decided 	under
the 	EERA," 	Professional 	Engineers, 	supra, 	at 	footnote 	8, 	the
Board 	implicitly 	rejected 	the 	reasoning 	of 	that 	case, 	following
instead much 	the 	same 	argument 	as 	put 	forward 	by 	the 	charging
party 	in 	the 	instant 	case. 	The 	Board 	reasoned 	that:
The 	SEERA 	granted 	significant 	new 	collective
negotiations 	rights 	to 	state 	employees. 	If
we 	were 	to 	adopt 	respondent's 	argument 	that
nonexclusive 	representatives 	have 	no 	right
to meet 	and 	discuss 	wages 	with 	the 	state
employer, 	employees 	would 	be 	left 	with 	fewer
rights 	than 	they 	had 	before 	SEERA. 	It 	would
be 	anomalous 	for 	the 	Legislature 	in 	enacting
a 	new 	law 	which 	generously 	expands 	the
rights 	of 	employees, 	to 	strip employees 	in
units 	with 	no 	exclusive 	representative 	of
any 	voice 	in 	a 	matter 	as 	basic 	as 	wages.
Two 	statutory provisions 	strongly militate
against 	such 	an 	interpretation. 	First,
there 	is 	no 	requirement 	under 	the 	SEERA 	that
employees 	select 	an 	exclusive
representative. 	(Sec. 	3515.) 	Second,
nonexclusive 	representatives 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	the 	state 	until 	an
exclusive 	representative 	is 	recognized.
(Sec. 	3515.5, 	supra.) 	The 	Board 	finds 	that
the 	thrust 	of 	these 	two 	sections 	is 	to
protect 	the 	right 	of 	employees 	to 	be
represented 	by a 	nonexclusive 	representative
when 	an 	exclusive 	representative 	has 	not
been 	chosen.
29

Professional 	Engineers, 	supra. 	Santa Clara Federation of
Teachers 	v. 	Santa Clara Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104, 	did 	not 	affirm 	th~t 	the 	failure 	to meet 	and
confer 	does 	not 	constitute 	an 	unfair 	practice 	under 	EERA, 	as
argued 	by 	respondent, 	but 	instead 	found 	that 	the 	lack 	of
evidence 	that 	the 	Union 	requested 	to meet 	and 	consult,
"obviates 	consideration 	of 	the 	question 	••.• " 	Id. 	Thus,
even 	before 	Professional 	Engineers, 	the 	Board 	considered 	the
duty 	to 	meet 	and 	consult 	with 	a 	nonexclusive 	representative 	an
open 	question.
This 	is 	a 	case 	of 	first 	impression 	under 	HEERA, 	since 	there
is 	no 	precedent 	on 	the 	duty 	to meet 	and 	confer 	under 	this Act.
It 	may 	be 	argued 	that 	Professional 	Engineers 	does 	not 	apply
here 	since 	section 	3515.5 	of 	SEERA which 	the 	Board 	found 	to
grant 	this 	right 	has 	no 	parallel 	in HEERA. 	Section 	3543.l(a)
of 	EERA 	(interpreted 	in San Dieguito) 	and 	3515.5 	of SEERA
(interpreted 	in 	Professional 	Engineers) 	both 	described 	the
right 	of 	employee 	organizations 	to 	represent members, 	and 	HEERA
has 	no 	such 	section. 	Charging 	party counters 	that 	the 	duty 	to
meet 	and 	confer 	is 	derived 	from 	section 	3565 of 	HEERA, 	which 	is
parallel 	to 	section 	3515 	of 	SEERA and 	section 	3543 	of 	EERA, 	and
all 	of 	these 	sections 	concern 	the 	right 	of 	employees 	to 	be
represented 	in 	their 	employment 	relations. 	This, 	the
University 	argues, 	further 	indicates 	a 	legislative 	intent 	not
to 	grant 	such 	a 	right 	to 	higher 	education 	employee
organizations.
30

But, 	the 	argument 	that 	the 	Legislature 	intentionally
omitted 	such 	a 	right 	does 	not 	stand 	up when HEERA 	is 	examined
as 	a 	whole 	and 	in 	the 	context 	of 	preMious 	legislation. 	This
Act 	was 	the 	most 	recent 	in 	a 	series 	of 	legislative 	enactments
granting 	greater 	collective 	bargaining 	rights 	to 	an 	expanding
number 	of 	public 	employees 	in California, 	all 	administered 	by a
single 	agency. 	As 	stated 	in 	the 	statute 	itself:
All 	other 	employees 	of 	the 	public 	school'
systems 	in 	the 	state 	have 	been 	granted 	the
opportunity 	for 	collective 	bargaining
through 	the 	adoption 	of 	Chapter 	10.3
(commencing 	with 	section 	3512) 	and
Chapter 	10.7 	(commencing 	with 	section 	3540)
of 	this 	division, 	and 	it 	would 	be
advantageous 	and 	desirable 	to 	expand 	the
jurisdiction of 	the 	board 	created 	thereunder
to 	cover 	the 	employees 	of 	the 	University 	of
California, 	Hastings 	College 	of 	Law, 	and 	the
California 	State 	Universities 	and 	Colleges.
These 	institutions 	of 	higher 	education 	have
their 	own 	organizational 	characteristics.
(Government Code 	section 	3560(b)).
There 	is 	nothing 	uniqu~ 	about 	these 	institutions, 	as
opposed 	to 	state 	employers 	(under 	SEERA) 	and 	public 	school
employers 	(under 	EERA) 	which 	would 	compel 	a 	difference 	in 	the
right 	of 	employees 	to 	be 	represented 	by 	an 	employee
organization 	prior 	to 	the 	selection 	of 	an 	exclusive
representative.
The 	decision 	in Professional 	Engineers 	was 	based 	on 	the
right 	of 	employees, 	"to 	be 	represented 	by a 	nonexclusive
representative 	when 	an 	exclusive 	representative 	has 	not 	been
selected." 	Id. 	Section 	3565 	of 	HEERA 	assures 	employees 	the
31

right 	to 	participate 	in 	an 	employee 	organization 	for 	the
purpose 	of 	representation 	and 	meeting 	and 	conferring. 	Put
simply, 	if 	the 	employer 	refuses 	to 	qeal 	with 	the 	employee
organization, 	these 	rights 	of 	the 	employees 	are 	meaningless.
Employees 	now 	covered 	by SEERA 	and HEERA were 	both
previously 	covered 	by 	the 	George Brown Act.14 	Exactly 	the
same 	rights 	guaranteed 	by 	this 	previous 	legislation 	are 	at
stake 	as 	in 	Professional 	Engineers. 	There 	is 	no 	indication
that 	the 	Legislature 	intended 	that 	employees 	under 	HEERA
without 	an 	exclusive 	representative 	were 	to 	lose 	any 	rights 	of
representation 	while 	those 	under 	SEERA were 	to 	retain 	them.
Indeed, 	as 	previously 	noted, 	section 3560(b) 	makes 	it 	clear
that 	the 	intent 	of 	the 	Legislature 	was 	to 	extend 	to 	higher
education 	employees 	the 	same 	rights 	previously 	granted 	to
public 	school 	employees 	and 	state 	employees, 	with 	differences
only 	where 	compelled 	by 	the 	unique 	nature 	of 	the 	institutions
involved. 	It 	is 	therefore 	found 	that 	the 	respondent 	had 	a 	duty
to 	meet 	and 	consult, 	as 	defined 	in 	Professional 	Engineers, 	with
the 	charging 	party.
The 	Extent 	of 	the 	Duty
Although 	a 	higher 	education 	employer 	has 	a 	duty 	under 	the
Act 	to meet 	and 	consult 	with 	a 	nonexclusive 	representative
14see 	footnote 	11, 	supra.
32

prior 	to 	the 	selection of 	an 	exclusive 	representative, 	this 	is
not 	the 	same 	as 	the 	duty 	to meet 	and 	confer, 	or 	to 	bargain,
with 	an 	exclusive 	representative. 	~s 	stated 	in 	Professional
Engineers, 	supra:
We 	stress, 	however, 	that 	the 	obligation
imposed 	on 	the 	state 	employer 	to meet 	with 	a
nonexclusive 	representative 	is 	not 	the 	same
as 	that 	imposed 	with 	regard 	to 	an 	exclusive
representative. 	Thus, 	whereas 	the 	Governor
and 	representatives 	of 	recognized 	or
certified 	employee 	organizations 	"have 	the
mutual 	obligation 	personally 	to meet 	and
confer 	[in 	good 	faith] 	promptly 	upon 	request
by 	either 	party 	and 	continue 	for 	a
reasonable 	period 	of 	time 	in 	order 	to
exchange 	freely 	information, 	opinions 	and
proposals, 	and 	to 	endeavor 	to 	reach
agreement 	on matters 	within 	the 	scope 	of
representation 	••• " 	(section 	3517), 	the
Board 	finds 	that 	the 	obligation 	imposed 	by
the 	statute 	on 	the 	state 	employer 	with
respect 	to 	nonexclusive 	representatives 	is
to 	provide 	a 	reasonable 	opportunity 	to meet
and 	discuss 	wages 	with 	them 	prior 	to 	the
time 	the 	employer 	reaches 	or 	takes 	action 	on
a 	policy 	decision.
Thus, 	while 	the 	duty 	to 	meet 	and 	confer 	with 	an 	exclusive
representative 	encompasses 	a 	good 	faith 	effort 	to 	reach 	an
agreement, 	the 	duty 	to 	meet 	and 	consult 	with 	a 	nonexclusive
representative 	only 	requires 	the 	opportunity 	for 	discussion
prior 	to 	the 	decision 	or 	action.
Even 	though 	this 	duty 	is 	less 	than 	that 	owed 	an 	exclusive
representative, 	it 	still 	includes 	some 	requirement 	of 	good
faith. 	Since 	the 	duty 	to meet 	and 	consult 	with 	a 	nonexclusive
representative 	derives 	in 	part 	from 	the 	legislative 	intent
33

to 	preserve 	existing 	rights 	and 	extend 	them 	by 	enactment 	of
HEERA, 	this 	duty must 	at 	least 	be 	as 	extensive 	as 	it was 	under
section 	3530 	of 	the 	George 	Brown Ac~ 	(see 	footnote 	11). 	Court
decisions 	interpreting 	this 	section 	have 	found 	that 	it 	includes
the 	element 	of 	good 	faith. 	State Association 	of 	Real 	Property
Agents 	v. 	State 	Personnel 	Board 	(1978) 	83 	Cal.App.3d 	206, 	211
[147 	Cal.Rptr. 	786]; 	Lipow 	v. 	Regents 	of 	the 	University of
California 	(1975) 	54 	Cal.App.3d 	215, 	224 	[126 	Cal.Rptr. 	515].
Another 	consideration 	in 	determining 	the 	extent 	of 	this
duty 	is 	the 	effect 	on 	other 	nonexclusive 	representatives,
especially, 	as 	here, 	where 	both 	organizations 	have 	petitioned
to 	represent 	the 	employees. 	By 	meeting 	with 	one 	organization
and 	not 	another, 	or 	by 	being 	more 	receptive 	to 	one 	organization
an 	employer 	may 	run 	the 	risk 	of 	being 	accused 	of 	favoritism
towards 	one 	organization 	in 	violation of 	section 	3571(d) .15
15Section 	3571(d) 	reads, 	in 	relevant 	part:
[It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:] 	Dominate 	or
interfere 	with 	the 	formation 	or
administration 	of 	any 	employee 	organization,
or 	contribute 	financial 	or 	other 	support 	to
it, 	or 	in 	any 	way 	encourage 	employees 	to
join 	any 	organization 	in 	preference 	to
another; 	• 	• 	• 	(Emphasis 	added.)
If 	an 	employer 	was 	required 	to 	do 	anything 	more 	than 	"to 	consider
as 	fully 	as 	[it] 	deem[s] 	reasonable," 	Gov. 	Code 	sec. 	3530, 	the
employee 	organizations' 	requests, 	it 	would 	be 	in 	a 	"Catch 	22"
situation 	if 	it 	had 	to 	bargain 	with 	two 	organizations 	which 	made
conflicting 	requests.
34

For 	this 	reason 	the 	duty 	to meet 	and 	consult 	should 	not 	be 	any
greater 	than 	that 	imposed 	by 	the 	George 	Brown Act.
The 	University Met 	its 	Duty 	to Meet .and Consult
The 	University met 	with 	the 	Union 	and 	discussed 	the 	issue
of 	time 	clocks 	prior 	to 	their 	implementation. 	On April 	26,
1979, 	a meeting 	took 	place 	which 	both 	sides 	categorized 	as 	a
"meet 	and 	confer 	session." 	This meeting 	was 	delayed 	until
after 	the 	clocks 	were 	installed, 	which 	might 	be 	considered 	a
"unilateral 	action" 	in 	violation 	of 	the 	Act. 	However, 	the Act
was 	not 	in 	effect 	at 	that 	time 	so 	this 	could 	not 	constitute 	an
independent 	violation, 	nor 	could 	it 	be 	the 	basis 	for 	a
violation 	occurring 	after 	the 	effective 	date 	of 	the Act. 	(See
footnote 	6 and 	accompanying 	text, 	supra.) 	As 	a 	partial
response 	to 	a 	request 	made 	by 	the 	Union 	at 	the 	April 	26
meeting, 	a 	series 	of 	meetings 	with 	all 	plant 	operations
employees 	was 	held 	on May _11, 	1979. 	Finally on July 	6 	another
meeting 	was 	held 	between 	the 	Union 	and 	the 	University 	at 	which
the 	time 	clock 	issue 	was 	discussed. 	This 	was 	the 	only meeting
held 	after 	the 	Act 	went 	into effect.
The Union 	bases 	its 	charge 	on 	the 	refusal 	of 	the 	University
to 	grant 	its 	request 	to meet 	and 	confer made 	on September 	24,
and 	other 	requests 	made 	subsequent 	to 	the 	filing 	of 	this
charge. 	But 	since 	the 	University 	did, 	in 	fact, 	meet 	and
discuss 	the 	issue 	with 	the Union, 	and 	with 	employees, 	prior 	to
taking 	final 	action, 	and 	there 	is 	no 	evidence 	of 	bad 	faith, 	it
35

is 	found 	that 	it met 	its 	duty 	to meet 	and 	consult.
Unlike 	the 	situation 	where 	there 	is 	an 	exclusive
representative 	and 	thus 	a 	"mutual 	o~ligation 	••• 	to 	endeavor
to 	reach 	agreement 	.," 	Government Code 	section 	3562(d), 	the
University 	here 	is 	not 	obligated 	to 	continue 	to meet 	with 	the
Union 	once 	it" ••• 	provide[s] 	a 	reasonable 	opportunity 	to
meet 	and 	discuss 	••• 	prior 	to 	the 	time 	the 	employer 	reaches
or 	takes 	action 	on 	a 	policy 	decision." 	Professional 	Engineers,
supra.
The 	subsequent 	refusal 	of 	the 	University 	to meet 	with 	the
Union 	on 	this 	issue 	was 	part 	of 	the 	systemwide 	policy 	that
there 	was 	no 	duty 	to meet 	and 	confer 	with 	a 	nonexclusive
representative 	under 	the 	Act. 	Even 	though 	this 	interpretation
was 	partially 	incorrect, 	and 	ignorance 	of 	the 	law 	is 	no 	excuse,
it may 	be 	a 	factor 	in 	finding 	that 	the 	University was 	acting 	in
good 	faith.16 	There 	was 	no 	other 	evidence 	of 	bad 	faith 	on
the 	part 	of 	the 	University 	in 	refusing 	to 	continue 	discussion
of 	the 	issue. 	No 	new 	issue 	was 	raised 	by 	the 	Union 	in 	its
September 	24 	request 	which 	might 	activate 	a 	new duty 	by 	the
16In 	this 	regard, 	the 	Board 	stated:
In 	addition, 	at 	the 	time 	the 	series 	of
events 	occurred 	in 	this case, 	San 	Dieguito,
supra, 	was 	the 	only Board 	precedent
available 	to 	serve 	as 	a 	guide 	to 	the 	parties
that 	interpreted 	the 	breadth 	of 	a
nonexclusive 	employee 	representative's 	right
to 	represent 	its members 	in 	their 	employment
36

University 	to meet 	and 	consult.
Dismissal 	of 	Grievances
The 	charging 	party 	has 	alleged 	~hat 	the 	University 	refused
to 	discuss 	the merits 	of 	grievances 	in 	violation 	of
section 	357l(a) 	and 	(b) 	of 	the 	Act. 	The 	grievances 	referred 	to
are 	the 	April 	26, 	1979 	grievance 	dismissed 	by Vice
President 	Kennelly 	on May 	8, 	and 	the 	January 	4, 	1980 	grievance
dismissed 	by Vice 	President Kennelly 	on January 	16. 	Both
grievances 	concern 	the 	University's 	failure 	to meet 	and 	confer.
In 	order 	to 	find 	a 	violation 	of 	section 	3571(a) 	or 	3571(b),
the 	employer's 	action must 	either 	have 	interfered 	with 	some
right 	granted 	to 	the 	employees 	(for 	a 	3571(a) 	charge) 	or 	the
employee 	organization 	(for 	a 	3571(b) 	charge), 	or 	have 	been
motivated 	by 	unlawful 	intent. 	Oceanside-Carlsbad, 	supr~. 	The
charging 	party 	argues 	that 	section 	3567 grants 	employees 	and
employee 	organizations 	the 	right 	to 	have 	grievances 	processed.
relations. 	Even 	though 	that 	case 	was 	decided 	under
the 	EERA 	it 	was 	based, 	in 	part, 	on 	an 	interpretation
of 	statutory 	language 	basically paralleling 	that
contained 	in 	the 	SEERA with 	which 	we 	are 	here
concerned. 	While 	we 	have 	chosen 	in 	this 	case, 	decided
under 	SEERA, 	not 	to 	follow 	the 	San Dieguito 	holding,
the 	state 	employer 	was 	not 	unreasonable 	in 	relying on
the 	assumption 	that 	this 	board 	would 	follow 	·
San 	Dieguito.
While 	reliance 	on EERA precedent 	alone 	may 	not 	be 	a
sufficient 	defense, 	we 	find 	that 	this 	factor 	coupled
with 	the 	specific 	circumstances 	in 	this 	case 	warrant 	a
finding 	that 	the 	actions 	of 	the 	state 	employer 	were
not 	unreasonable 	and 	did 	not 	violate 	its 	obligations
under 	the 	SEERA.
37

That 	section 	reads:
Any 	employee 	or 	group of 	employees 	may 	at
any 	time, 	either 	individually or 	through 	a
representative 	of 	their 	own 	choosing,
present 	grievances 	to 	the 	employer 	and 	have
such 	grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative1 	provided, 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
section 	3589, 	and 	the 	adjustment 	is 	not
inconsistent 	with 	the 	terms 	of 	a 	written
memorandum 	then 	in 	effect. 	The 	employer
shall 	not 	agree 	to 	resolution of 	the
grievance 	until 	the 	exclusive 	representative
has 	received 	a 	copy of 	the 	grievance 	and 	the
proposed 	resolution, 	and 	has 	been 	given 	the
opportunity 	to 	file 	a 	response.
This 	section 	is 	nearly 	identical 	to 	the 	second 	paragraph 	of
section 	3543 	of 	the 	Educational 	Employment 	Relations Act,17
and 	also 	section 	9(a) 	of 	the 	Labor 	Management Relations
17california Government Code 	section 	3543, 	second
paragraph, 	reads:
Any 	employee 	may 	at 	any 	time 	present
grievances 	to 	his employer, 	and 	have 	such
grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a 	written 	agreement 	then 	in
effect1 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
38

18	Act. 	In 	Baldwin Park Unified 	School 	District 	(4/4/79) 	PERB
Decision No. 	92, 	the 	Board 	affirmed 	(in 	relevant 	part) 	a
hearing 	officer's 	dismissal, 	with 	le~ve 	to 	amend, 	of 	a 	charge,
finding 	that 	section 	3543 	grants 	employees 	only 	the 	right 	to
present 	grievances, 	not 	the 	right 	to 	have 	their 	grievances
processed 	or 	considered. 	The 	hearing 	officer 	had 	followed 	the
interpretation 	of 	the 	parallel 	section 	in 	the 	Labor-Management
Relations Act 	by 	federal 	courts, 	where 	it 	is 	settled 	that 	its
purpose 	is:
To 	permit 	employees 	to 	present 	grievances 	and
to 	authorize 	the 	employer 	to 	entertain 	them
without 	opening 	itself 	to 	liability 	for
dealing 	directly 	with 	employees 	in 	derogation
of 	the 	duty 	to 	bargain only with 	the
exclusive 	bargaining 	representative 	•.••
1829 	u.s.c. 	151 	et 	seq. 	Section 9(a) 	reads, 	in 	relevant
part:
Any 	individual 	employee 	or 	a 	group of
employees 	shall 	have 	the 	right 	at 	any 	time
to 	present 	grievances 	to 	their 	employer 	and
to 	have 	such 	grievances 	adjusted, 	without
the 	intervention 	of 	the 	bargaining
representative, 	as 	long 	as 	the 	adjustment 	is
not 	inconsistent 	with 	the 	terms 	of 	a
collective-bargaining 	contract 	or 	agreement
then 	in 	effect: 	Provided 	further, 	that 	the
bargaining 	representative 	has 	been 	given
opportunity 	to 	be 	present 	at 	such 	adjustment.
39

Emporium Capwell 	Co. 	v. 	WACO 	(1975) 	420 	U.S. 	50, 	at 	p. 	61, 	fn.
12 	[88 	LRRM 	2660, 	2665]. 	See 	also Black-Clawson Co. 	v.
Machinists 	(2d Cir. 	1962) 	313 	F.2d 	1J9 	[52 	LRRM 	2038]; 	Republic
Steel 	v. 	Maddox 	(1965) 	379 	U.S. 	650, 	[58 	LRRM 	2193].
The 	respondent 	here 	did 	not 	attempt 	to 	deny 	employees 	or
the 	Union 	their 	right 	to 	present grievances. 	The 	first
grievance 	was 	dismissed 	because 	it 	was 	allegedly 	not 	within 	the
scope 	of 	the 	grievance 	procedure. 	The 	second 	grievance 	was
dismissed 	for 	the 	same 	reason, 	and 	additionally 	because 	this
unfair 	labor 	practice 	charge 	was 	pending, 	covering 	the
identical 	issue 	raised 	in 	the 	grievance. 	Whether 	the 	decision
that 	these 	grievances 	are 	within 	the 	scope 	of 	the 	grievance
procedure 	is 	correct 	is 	not 	a matter 	the 	Board may consider.19
The 	charging 	party 	has 	not 	presented 	sufficient 	evidence 	to
prove 	that 	the 	denial 	of 	these 	grievances 	was 	in 	reprisal 	for
protected 	activity. 	There_ is 	nothing 	in 	the 	record 	to 	suggest
that 	the 	dismissals 	were 	other 	than 	a 	good 	faith 	application of
University 	policy.
Since 	there 	is 	no 	right 	to 	have 	grievances 	processed 	in 	the
Act, 	there 	is 	not 	even 	"slight 	harm" 	to 	employee 	rights 	under
the 	Oceanside-Carlsbad 	test. 	Nor 	is 	there 	proof 	of 	unlawful
intent 	which 	would 	independently 	constitute 	an 	unfair
19section 	3563.2(b) 	precludes 	the 	Board 	from 	enforcing
any 	contract 	between 	the 	parties.
40

practice. 	Therefore 	it 	is 	found 	that 	the 	respondent 	has 	not
violated 	section 	3571(a) 	or 	(b) 	of 	the 	Act 	by 	its 	dismissal 	of
the 	two mentioned 	grievances.
REMEDY
The 	remedy 	for 	a 	violation 	of 	section 	357l(a) 	should 	be
"designed 	to 	restore, 	so 	far 	as 	possible, 	the 	status 	quo 	which
would 	have 	obtained 	but 	for 	the 	wrongful 	act." 	Santa Clara
Unified School 	District 	(9/26/79) 	PERB 	Decision No. 	104,
quoting 	from NLRB v. 	Rutter-Rex Mfg. 	Co., 	Inc. 	(1969) 	396 	U.S.
258 	[24 	L.Ed.2d 	405, 	72 	LRRM 	2881] 	reh. 	den. 	397 	U.S. 	929 	[25
L.Ed2d 	109]. 	Restoration 	of 	the 	status 	quo 	ante 	in 	the 	present
case 	would 	require 	a 	return 	to 	the 	previous 	timekeeping
system. 	However, 	since 	the 	implementation of 	time 	clocks 	and
stricter 	timekeeping 	procedures 	are 	legitimate 	changes 	in
operations 	absent 	the 	unlawful 	motivation 	found 	here, 	it 	would
be 	unfair 	to 	"freeze" 	the ?niversity's 	options 	indefinitely.
On 	the 	other 	hand, 	without 	a 	return 	to 	the 	status 	quo 	ante, 	a
bare 	order 	to 	cease 	and 	desist 	would 	do 	little 	to 	remedy 	the
possible 	chilling 	effect 	on 	the 	exercise 	of 	employee 	rights
resulting 	from 	the 	University's 	action.
The 	charging 	party 	has 	suggested 	that 	the 	previous 	system
be 	restored, 	and 	that 	the 	University 	not 	require 	employees 	to
use 	time 	clocks 	for 	approximately 	the 	same 	period 	that 	they
~ 	required 	to 	use 	time 	clocks. 	While 	agreeing 	with 	the
concept 	of 	returning 	to 	the 	status 	quo 	ante 	with 	a 	"hiatus"
41

period 	during 	which 	the 	University may 	not 	change 	its
timekeeping 	operations, 	it 	is 	found 	that 	a more 	appropriate
cut-off 	point 	for 	such 	a 	hiatus 	period 	is 	the 	date 	the 	results
of 	the 	representation 	election 	for 	these 	employees 	is
certified, 	or 	ninety 	calendar 	days, 	whichever 	comes 	first.
This 	would 	avoid 	any 	effect 	such 	a 	change 	of 	operations 	could
have 	on 	the 	election. 	Once 	the 	results 	of 	the 	election 	are
certified, 	the 	status 	of 	the 	contending 	organizations 	will 	be
clarified. 	If 	an 	exclusive 	representative 	is 	certified,
timekeeping 	policy 	could 	immediately 	be 	a 	subject 	of meeting
and 	conferring. 20 	If 	the 	employees 	choose 	no 	representation,
or 	if 	ninety 	days 	passes 	with 	no 	election, 	the 	University 	would
be 	free 	to 	change 	its 	timekeeping 	policy, 	but 	only 	after
meeting 	and 	discussing 	the 	matter 	with 	the 	nonexclusive
representatives 	(provided 	any 	action 	taken 	in 	this 	regard 	is
not 	in 	retaliation 	for 	protected 	activity). 	See 	Professional
Engineers, 	supra. 	The 	return 	to 	the 	status 	quo 	ante 	for 	a
20This 	decision 	assumes, 	without 	deciding, 	that 	the
subject 	of 	timekeeping 	policy 	and 	procedure 	is 	within 	the 	scope
of 	the 	obligation 	to meet 	and 	confer 	or 	consult, 	an 	assumption
never 	challenged 	by 	the 	respondent 	in 	this 	case. 	The 	subject
has 	been 	found 	negotiable 	under 	the 	NLRA, 	which 	has 	a 	broad
scope 	provision. 	Nathan 	Littauer 	Hospital Association 	(1977)
229 	NLRB 	1122 	[95 	LRRM 	1296). 	See 	also Murphy Diesel Co.
(1970) 	184 	NLRB 	757 	[76 	LRRM 	1469), 	enf'd 	(7th Cir. 	1971) 	454
F.2d 	303. · But 	see 	Rust 	Craft 	Broadcasting, 	Inc. 	(1976) 	225
NLRB 	327 	[92 	LRRM 	1576].
42

substantially 	shorter 	period 	than 	requested 	by 	the 	charging
party 	will 	adequately 	demonstrate 	to 	all 	parties 	and 	all
affected 	employees 	that 	the 	statutorily 	prescribed 	procedures
must 	be 	followed 	while 	not 	unduly 	impeding 	change.
The University 	will 	also 	be 	ordered 	to 	cease 	and 	desist
from 	retaliation 	against 	employers 	in 	plant 	operations 	for
protected 	activities 	of 	such 	employees, 	and 	to 	post 	copies 	of
the 	attached 	notice 	at 	locations 	on 	campus 	where 	notices 	to
employees 	are 	customarily 	placed. 	Posting 	will 	also 	provide
affected 	employees 	with 	notice 	that 	the University has 	acted 	in
an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	such unlawful 	activity. 	It 	effectuates 	the 	purposes 	of
EERA 	that 	affected 	employees 	be 	informed 	of 	the 	resolution 	of
the 	controversy. 	See CSEA Chapter 	658 	v. 	Placerville Union
High 	School District 	(9/18/78) 	PERB 	Decision No. 	69. 	A posting
requirement 	has 	been 	upheld 	in 	a 	California case 	involving 	the
Agricultural 	Labor 	Relations Act, 	Pandol 	and 	Sons 	v. 	ALRB
(1979) 	98 	Cal.App.3d 	580, 	587. 	Posting 	orders 	of 	the 	NLRB 	also
have 	been 	upheld 	by 	the 	United 	States 	Supreme Court, 	NLRB 	v.
Express 	Publishing Co. 	(1941) 	312 	U.S. 	426 	[8 	LRRM 	415]1
Pennsylvania Greyhound 	Lines, 	Inc. 	v. 	NLRB 	(1938) 	303 	U.S. 	261
(2 	LRRM 600].
It 	was 	also 	brought 	out 	at 	the 	hearing 	that 	at 	least 	one
employee, 	Chris Brewster, 	had 	to 	pay 	a 	parking 	ticket 	because
43

of 	the 	requirement 	that 	employees 	punch 	in 	at 	a 	central
location 	at 	a 	time 	when 	their 	parking 	permits 	were 	not 	valid.
The University 	should 	either 	void 	o~ reimburse 	the 	cost 	of 	this
and 	any 	other 	parking 	ticket 	received 	by 	an 	employee 	as 	a
direct 	result 	of 	being 	required 	to 	punch 	in 	at 	a 	central
location.
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3563.3, 	it 	is 	hereby ORDERED 	that 	the 	California
State University, 	Hayward 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering,
restraining 	or 	coercing 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the HEERA, 	by 	requiring 	employees 	to 	use
time 	clocks 	and 	observe 	n~w 	timekeeping 	policies.
2. 	Enforcing 	such 	timekeeping 	policies 	or 	disciplining
employees 	for 	failing 	to 	observe 	such 	policies 	in 	retaliation
for 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF THE 	HEERA:
1. 	Return 	to 	the 	previous 	timekeeping 	policy 	and 	procedure
which 	existed 	prior 	to July 16, 	1979 	in 	the 	plant 	operations
department. 	The 	University 	shall 	not 	again 	change 	such 	policy
until 	the 	results 	of 	the 	pending 	election 	to 	determine
44

representation 	for 	the 	plant 	operations 	employees 	is 	certified,
or 	ninety 	calendar 	days 	from 	the 	date 	this 	proposed 	decision
becomes 	final, 	whichever 	is 	sooner •. At 	that 	time 	the
University may 	implement 	such 	changes 	in 	timekeeping 	policy 	and
procedure 	that 	it 	deems 	proper, 	provided 	such 	changes 	are 	not
designed 	to 	retaliate 	against, 	or 	interfere 	with, 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA, 	and
provided 	that 	the 	University meets 	its 	duty 	to meet 	and 	confer
with 	any 	exclusive 	representative 	or 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	prior 	to 	adopting 	or 	implementing
such 	policy.
2. 	Either 	void 	or 	reimburse 	the 	costs 	of 	any 	parking
ticket 	received 	by 	an 	employee 	as 	a 	direct 	result 	of 	complying
with 	the 	requirement 	of 	punching 	in 	at 	a 	central 	location
between July 	16, 	1979, 	and 	the 	date 	this 	proposed 	decision
becomes 	final.
3. 	Within 	five 	days 	of 	the 	date 	this 	proposed 	decision
becomes 	final, 	post, 	at 	all 	work 	locations 	on 	campus 	where
notices 	to 	employees 	customarily 	are 	placed 	copies 	of 	the
notice 	attached 	as 	an 	appendix 	hereto. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	30 	workdays. 	Reasonable 	steps 	shall
be 	taken 	to 	ensure 	that 	said 	notices 	are 	not 	altered, 	defaced,
or 	covered 	by 	other 	material.
4. 	Immediately 	upon 	completion 	of 	the 	posting 	period,
notify 	the 	San Francisco Regional 	Director 	of 	the
45

Public Employment 	Relations Board, 	in 	writing, 	of 	the 	action
taken 	to 	comply with 	this 	order.
For 	the 	reason 	discussed 	in 	the 	toregoing 	opinion, 	all
other 	allegations 	included 	in 	unfair 	practice 	charge SF-CE-3-H
are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed Decision 	and 	order 	shall
become 	final 	on 	September 	11, 	1980 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32300. 	Such 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	Executive 	Assistant 	to 	the 	Board 	at 	the 	headquarters 	office
of 	the 	Public Employment 	Relations 	Board 	in Sacramento 	before
the 	close 	of 	business 	(5:00 	p.m.) 	on September 	11, 	1980 	in
order 	to 	be 	timely 	filed. 	See 	California Administrative Code,
title 	8, 	part 	III, 	section 32135. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrent 	with 	its 	filing
upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be
filed 	with 	the 	Board 	itself. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	sections 	32300 	and 	32305, 	as 	amended.
Dated: 	August 	22, 	1980
46
ember
ember

APPENDIX NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	Stat~ 	of 	California
After 	a 	hearing 	in Unfair 	Practice Case No. 	SF-CE-3-H,
College 	and University 	Employees/Service 	Employees
International Union 	(CAUSE-SEIU), 	AFL/CIO v. 	California State
University, 	Hayward, 	in which 	both 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that California State
University, 	Hayward 	violated 	the 	Higher 	Education Employer-
Employee 	Relations 	Act, 	Government Code 	section 	3571(a). 	As 	a
result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this
notice. 	We 	will 	abide 	by 	the 	following:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering,
restraining 	or 	coercing 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the HEERA, 	by 	requiring 	employees 	to 	use
time 	clocks 	and 	observe 	new 	timekeeping 	policies.
2. 	Enforcing 	such 	timekeeping 	policies 	or 	disciplining
employees 	for 	failing 	to 	observe 	such 	policies 	in 	retaliation
for 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH 	IS 	NECESSARY TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HIGHER EDUCATION EMPLOYER-
EMPLOYEE 	RELATIONS 	ACT:
1. 	Return 	to 	the 	previous 	timekeeping 	policy 	and 	procedure
which 	existed 	prior 	to July 16, 	1979 	in 	the 	plant 	operations
47

department. 	The 	University 	shall 	not 	again 	change 	such 	policy
until 	the 	results 	of 	the 	pending 	election 	to 	determine
representation 	for 	the 	plant 	operatiDns 	employees 	is 	certified,
or 	ninety calendar 	days 	from 	the 	date 	this 	proposed 	decision
becomes 	final, 	whichever 	is 	sooner. 	At 	that 	time 	the
University may 	implement 	such 	changes 	in 	timekeeping 	policy 	and
procedure 	that 	it 	deems 	proper, 	provided 	such 	changes 	are 	not
designed 	to 	retaliate 	against, 	or 	interfere 	with, 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA, 	and
provided 	that 	the 	University meets 	its 	duty 	to meet 	and 	confer
with 	any 	exclusive 	representative 	or 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	prior 	to 	adopting 	or 	implementing
such 	policy.
2. 	Either 	void 	or 	reimburse 	the 	costs 	of 	any 	parking
ticket 	received 	by 	an 	employee 	as 	a 	direct 	result 	of 	complying
with 	the 	requirement 	of 	punching 	in 	at 	a 	central 	location
between July 	16, 	1979, 	and 	the 	date 	this 	proposed 	decision
becomes 	final.
Dated: 	California State University,
Hayward
By-------------
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED FOR AT 	LEAST
30 WORKDAYS 	FROM THE 	DATE 	OF 	THIS 	POSTING AND MUST NOT BE
DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.
48

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

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COLLEGE AND UNIVERSITY SERVICE
EMPLOYEES - SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL/CIO,

Charging Party, Case No. SF-CE-3-H
PERB Decision No. 231-H

August 10, 1982

Ve
CALIFORNIA STATE UNIVERSITY, HAYWARD,

Respondent.

Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen,
Weinberg & Roger) for College and University Employees-Service
Employees International Union, AFL/CIO.

Before John W. Jaeger, Marty Morgenstern, and Virgil W. Jensen,
Members.

DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions filed by the College
and University Employees-Service Employees International Union,
AFL-CIO (CAUSE-SEIU or Charging Party), to the proposed
decision of the hearing officer finding that the California
State University, Hayward, (hereafter University) violated

subsection 3571(a)1 when it required employees to use time

1A11 references are to the Government Code unless
otherwise noted. The Higher Education Employer-Employee
Relations Act (HEERA) is codified at Government Code
section 3560 et seq. Subsection 3571(a) reads:

[It shall be unlawful . . . to] Impose or
threaten to impose reprisals on employees,
to discriminate or threaten to discriminate

clocks 	in 	reprisal 	for 	engaging 	in 	protected 	activity. 	The
single 	exception 	taken 	to 	the 	proposed 	decision 	concerns 	the
adequacy 	of 	one 	portion 	of 	the 	proposed 	remedy. 	CAUSE-SEIU
argues 	that 	the 	proposed 	order 	is 	inadequate 	in 	that 	it 	only
requires 	the 	University 	to 	return 	to 	the 	status 	quo 	ante 	until
either 	the 	results 	of 	the 	pending 	election 	to 	determine
representation 	are 	certified, 	or 	90 	calendar 	days 	from 	the 	date
the 	decision 	becomes 	final 	expire, 	whichever 	occurs 	first. 	The
University 	did 	not 	take 	exception 	to 	the 	proposed 	decision 	nor
did 	it 	respond 	to 	the 	exception 	taken 	by CAUSE-SEIU. 	The 	sole
issue 	before 	the 	Board 	is 	whether 	the 	proposed 	order 	is
arbitrary or 	insufficient 	in 	light 	of 	the 	circumstances 	of 	this
case. 	We 	affirm 	the 	hearing 	officer's 	findings 	but 	modify 	the
proposed 	order 	to 	comport 	with 	the 	current 	circumstances.
FACTS
The 	Board 	has 	reviewed 	the 	hearing 	officer's 	finding 	of
facts 	and 	conclusions 	of 	law 	and 	finds 	them 	free 	of 	prejudicial
error. 	We 	thus 	incorporate 	the 	attached 	hearing 	officer's
decision.
DISCUSSION
The 	hearing 	officer 	found 	that 	the 	University 	violated
subsection 	357l(a) 	when 	it 	required 	employees 	to 	use 	time
against 	employees, 	or 	otherwise 	to 	interfere
with, 	restrain or 	coerce 	employees 	because
of 	their 	exercise 	of 	rights 	guaranteed 	by
this 	chapter.
2

clocks 	in 	reprisal 	for 	protected 	activity. 	He 	concluded 	the
Nanery 	"letter 	writing 	campaign," 	the 	grievances, 	and 	the
organizing 	drive 	focusing 	on 	the 	time 	reporting 	issue 	was
protected 	activity. 	He 	found 	that 	the 	employees 	in 	Plant
Operations 	were 	required 	to 	use 	the 	time 	clocks 	in 	reprisal 	for
that 	protected 	activity.
The 	proposed 	order 	in 	this 	matter 	requires 	the 	u~iversity
to 	cease 	and 	desist 	from 	retaliating 	against 	employees 	by
requiring 	them 	to 	use 	time 	clocks, 	or 	enforcing 	timekeeping
policies 	in 	retaliation 	for 	exercising 	rights 	guaranteed 	by
HEERA. 	It 	further 	requires 	the 	University 	to 	return 	to 	the
previous 	timekeeping 	system 	for 	a 	period 	of 	90 	days 	or 	until 	a
representation 	election 	is 	held, 	whichever 	occurs 	sooner.
CAUSE-SEIU 	excepts 	to 	only 	that 	portion 	of 	the 	proposed
order 	that 	requires 	the 	University 	to 	return 	to 	the 	former
timekeeping 	procedure 	for 	a 	maximum 	of 	90 	days. 	It 	argues 	that
the 	University 	will 	benefit 	from 	its 	violation 	of 	HEERA 	because
the 	time 	limit 	imposed 	for 	return 	to 	the 	status 	quo 	ante 	is
less 	than 	the 	period 	in 	which 	the 	University's 	retaliatory
policy 	was 	in 	effect.
In 	Santa 	Clara 	Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104, 	the 	Board 	determined 	that 	a 	remedy 	for 	a
violation 	of 	subsection 	3543.S(a) 	of 	the 	Educational 	Employment
Relations 	Act 	should 	be 	"designed 	to 	restore, 	so 	far 	as
possible, 	the 	status 	quo 	which 	would 	have 	been 	obtained 	but 	for
3

the 	wrongful 	act." 	The 	identical 	language 	is 	contained 	in
subsection 	357l(a). 	We 	have 	carefully 	reviewed 	the 	findings 	of
fact 	and 	conclusions 	reached 	by 	the 	hearing 	officer 	that 	formed
the 	basis 	for 	the 	proposed 	remedy, 	and 	we 	find 	them 	to 	be 	free
from 	error. 	However, 	because 	of 	the 	change 	of 	circumstances
since 	the 	issuance 	of 	the 	proposed 	decision, 	we 	modify 	the
order 	to 	reflect 	the 	change 	in 	conditions.
The 	Board 	takes 	official 	notice 	of 	information 	contained 	in
its 	records 	that 	indicates 	that 	a 	representation 	election 	has
occurred 	for 	nonprofessionals, 	including 	employees 	in 	the 	Plant
Operations 	Department.2 	The 	ballots 	were 	mailed 	on
December 	14, 	1981 	and 	were 	required 	to 	be 	returned 	by
January 	26, 	1982. 	The 	ballot 	presented 	a 	choice 	between 	the
California 	State 	Employees 	Association 	and 	no 	representative.
CAUSE-SEIU did 	not 	appear 	on 	the 	ballot. 	No 	objections 	were
.
filed 	and 	the 	results 	of 	this .
election 	were 	certified 	on
February 	16, 	1982, 	with 	CSEA 	being 	designated 	as 	the 	exclusive
representative 	of 	all 	nonprofessional 	employees 	in 	Unit 	5,
Operations/Support.
21n 	PERB 	Case 	No. 	LA-HR-5, 	California 	State 	University,
Unit 	5, 	Operations 	Support, 	a 	representation 	election 	occurred
and 	an 	exclusive 	representative 	was 	certified 	to 	represent
employees, 	including 	those 	in 	the 	Hayward 	Plant 	Operations
Department 	on February 	16, 	1982. 	The 	Charging 	Party 	in 	the
matter 	pending 	before 	us 	today 	was 	not 	a 	party 	to 	the
representation 	proceeding.
4

Because 	CAUSE-SEIU 	is 	no 	longer 	involved 	in 	any 	organizing
activity 	at 	the 	CSU-Hayward 	campus, 	the 	Board 	concludes 	that 	a
change 	in 	circumstances 	has 	occurred 	that 	requires 	us 	to 	modify
the 	proposed 	order. 	We 	will 	require 	only 	that 	the 	University
post 	a 	notice 	indicating 	it 	will 	cease 	and 	desist 	from
retaliating 	against 	employees 	in 	Plant 	Operations 	for 	engaging
in 	protected 	activity. 	To 	further 	require 	that 	the 	University
return 	to 	the 	former 	timekeeping 	procedure, 	in 	light 	of 	the
subsequent 	change 	in 	circumstances 	regarding 	the
representational 	status 	of 	the 	Charging 	Party, 	would 	not
effectuate 	the 	purposes 	of 	the 	Act, 	nor 	would 	it 	be 	consistent
with 	the 	factual 	basis 	for 	the 	conclusion 	that 	the 	University
violated 	subsection 	357l(a).
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	entire
record 	in 	this 	case, 	and 	pursuant 	to 	Government 	Code
section 	3563.3, 	it 	is 	hereby ORDERED 	that 	the 	California 	State
University, 	Hayward, 	and 	its 	representatives 	shall:
A. 	Cease 	and 	desist 	from:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering
with, 	restraining 	or 	coercing 	employees 	because 	of 	the 	exercise
of 	rights 	guaranteed 	by 	the 	HEERA. 	In 	particular, 	the
University 	shall 	not, 	in 	the 	future, 	institute 	changes 	in
timekeeping 	policies 	and 	requirements 	to 	retaliate 	against
employees.
5

B. 	Take 	the 	following 	affirmative 	action 	designed 	to
effectuate 	the 	purposes 	of 	the 	HEERA:
1. 	Post 	at 	all 	work 	locations 	on·campus, 	where 	notices 	to
employees 	are 	customarily 	placed, 	copies 	of 	the 	Notice 	attached
as 	an 	appendix 	hereto. 	Such 	posting 	shall 	be 	maintained 	for 	a
period 	of 	at 	least 	30 	consecutive 	workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	ensure 	that 	said 	Notices 	are 	not 	reduced 	in
size, 	altered, 	defaced 	or 	covered 	by 	any 	other 	material.
2. 	At 	the 	end 	of 	the 	posting 	period, 	notify 	the
San 	Francisco 	Regional 	Director 	in 	writing 	of 	the 	actions 	taken
to 	comply 	with 	this 	ORDER.
This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	California 	State 	University,
Hayward.
6
ember
ember
ember
ember
ember
ember

APPENDIX A
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	SF-CE-3-H,
College 	and 	University Employees/Service 	Employees
International 	Union, 	AFL/CIO 	v. 	California 	State 	University,
Hayward, 	in 	which 	both 	parties 	had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	California 	State 	University, 	Hayward,
violated 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act,
Government 	Code 	section 	357l(a). 	As 	a 	result 	of 	this 	conduct,
we 	have 	been 	ordered 	to 	post 	this 	Notice 	and 	to 	abide 	by 	the
following:
A. 	We 	will 	CEASE 	AND 	DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering
with, 	restraining 	or 	coercing 	employees 	because 	of 	the 	exercise
of 	rights 	guaranteed 	by 	the 	HEERA. 	In 	particular, 	the
University 	shall 	not, 	in 	the 	future, 	institute 	changes 	in
timekeeping 	policies 	and 	requirements 	to 	retaliate 	against
employees.
CALIFORNIA 	STATE UNIVERSITY,
HAYWARD
By
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
30 	WORKING 	DAYS 	FROM THE 	DATE 	OF 	THIS 	POSTING AND MUST NOT BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.
7

-
STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COLLEGE AND UNIVERSITY
EMPLOYEES 	- 	SERVICE 	EMPLOYEES
INTERNATIONAL 	UNION 	(CAUSE 	- 	SEIU) ,
AFL/CIO,
Charging 	Party,
v.
CALIFORNIA 	STATE UNIVERSITY,
HAYWARD,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
__________________ )
Unfair 	Practice 	Charge
Case No. 	SF-CE-3-H
PROPOSED, DECISION
(8/22/80)
Appearances: 	Robert 	J. 	Bezemek, 	Attorney 	(Van 	Bourg, 	Allen,
Weinberg 	& Roger) 	for 	College 	and University Employees--Service
Employees 	International 	Union 	(CAUSE-SEIU)r 	AFL/CIO; 	Jaffe 	D.
Dickerson, 	Attorney, 	for 	California State University.
Before Michael 	J. 	Tonsing, 	Hearing Officer.
PROCEDURAL 	HISTORY
On October 	10, 	1979, 	the 	charging 	party, 	College 	and
University 	Service 	Employees-Service 	Employees 	International
Union, 	AFL/CIO 	(hereafter 	CAUSE-SEIU 	or 	the 	Union) 	filed 	its
original 	unfair 	practices 	charge 	against 	the 	respondent,
California 	State 	University, 	Hayward 	(hereafter 	the
University). 	The 	original 	complaint 	alleged 	that 	the
University 	had 	violated 	section 	357l(a) 	of 	the 	Higher 	Education

Employer-Employee 	Relations 	Actl 	by 	installing 	time 	clocks
and 	requiring 	employees 	of 	its 	plant 	operations 	department 	to
punch 	in 	and 	out 	in 	retaliation 	for'protected 	activity1 	that 	it
had 	violated 	section 	3571(a) 	and 	(b) 	of 	the 	Act 	by 	refusing 	to
meet 	and 	confer 	with CAUSE-SEIU 	and 	ignoring 	its 	grievances12
that 	it 	had 	violated 	section 	3571(f) 	of 	the 	Act 	by meeting 	with
a 	staff 	advisory 	group 	after 	a 	petition 	for 	certification 	had
been 	filed 	by CAUSE-SEiu.3
On October 	11, 	1979, 	the 	Union 	filed 	an 	amendment 	to 	its
charge, 	specifying 	the 	reasons 	for 	the 	reprisal 	as: 	membership
by 	employees 	in CAUSE-SEIU, 	organizing 	activity, 	a 	desire 	to
single 	out 	plant 	operations 	employees, 	and 	retaliation 	for
representation 	by 	the 	Union. 	The 	University 	filed 	its 	answer
lGovernment 	Code 	section 	3560 	et 	seq. 	(hereafter 	HEERA,
or 	the Act). 	All 	referenees 	are 	to 	the 	Government 	Code 	unless
otherwise 	noted. 	Section 	3571(a) 	reads:
[It 	shall 	be 	unlawful 	to] 	Impose 	or 	threaten
to 	impose 	reprisals 	on 	employees, 	to
discriminate	iscriminate or threaten to discriminate	or 	threaten 	to 	discriminate
against 	employees, 	or 	otherwise 	to 	interfere
with, 	restrain 	or 	coerce 	employees 	because
of 	their 	exercise 	of 	rights 	guaranteed 	by
this 	chapter.
2section 	357l(b) 	reads:
[It 	shall 	be 	unlawful 	to] 	Deny 	to 	employee
organizations 	rights 	guaranteed 	to 	them 	by
this 	chapter.
3This 	portion 	of 	the 	charge 	was 	later 	withdrawn. 	See
text 	infra.
2

On 	November 	2, 	1979, 	denying 	all 	the 	charges. 	An 	informal
conference 	was 	held 	at 	the 	San Francisco Regional 	Office 	of 	the
Public Employment 	Relations 	Board 	(nereafter 	the 	PERB 	or 	the
Board) 	on November 	5, 	1979, 	at ,which 	it 	was 	agreed 	that 	the
Union 	would 	supply 	a 	Statement 	of 	Particularization 	by
November 	21, 	and 	a 	formal 	hearing 	would 	be 	held 	on December 	11.
On December 	4, 	1979, 	the 	parties 	agreed 	to 	request 	a
continuance 	of 	the 	charge 	so 	that 	it 	could 	be 	consolidated 	with
a 	subsequent 	charge 	anticipated 	by 	the 	Union. 	On 	December 	10,
1979, 	the 	parties 	were 	notified 	by 	the 	hearing 	officer 	that 	the
formal 	hearing 	was 	reset 	for 	January 	23-24, 	1980. 	It 	was
subsequently 	agreed 	that 	the 	charging 	party would 	provide 	the
aforementioned 	Statement 	of 	Particularization, 	along 	with
notice 	of 	the 	anticipated 	charge, 	by January 	15, 	1980.
The 	respondent 	received 	the 	Statement 	of 	Particularization
on 	January 	16, 	1980. 	The -~barging 	party 	indicated 	that 	the
subsequent 	charge 	either 	had 	not 	been 	filed, 	or 	it 	would 	not
seek 	consolidation 	with 	the 	present 	charge. 	Subpoenas 	and
subpoena 	duces 	tecum 	were 	issued 	on January 	21, 	1980. 	The
hearing 	was 	held 	on 	January 	23-24, 	1980, 	at 	Hayward,
California. 	At 	the 	hearing, 	the 	Union 	withdrew 	that 	portion 	of
the 	charge 	which 	alleged 	a 	violation 	of 	section 	3571(f).
FINDINGS 	OF 	FACT
The 	charging 	party, 	CAUSE-SEIU, 	is 	an 	employee 	organization
within 	the 	meaning 	of 	the 	Act. 	The 	respondent, 	California
3

State 	University, 	Hayward, 	is 	a 	higher 	education 	employer
within 	the 	meaning 	of 	the 	Act.4
Plant 	operations 	is 	the 	largest'non-academic 	department 	on
the 	Hayward 	campus 	of 	respondent, 	employing 	over 	200 	people,
including 	approximately 	75 	student 	assistants. 	Don Farley 	is
the 	chief 	of 	plant 	operations. 	Under 	him 	are 	two 	assistant
directors, 	Don 	Brooks 	and 	Al 	Dusel, 	an 	administrative
assistant, 	George 	Anderson, 	and 	heads 	of 	various 	sections--
engineers, 	building 	trades, 	custodial 	services, 	and 	grounds.
It 	was 	stipulated 	that 	all 	of 	these 	individuals, 	with 	the
exception 	of 	George 	Anderson, 	are 	managerial 	or 	supervisory
employees 	within 	the 	meaning 	of 	the 	Act.
Prior 	to 	July 	1979, 	the 	procedure 	for 	timekeeping 	in 	plant
operations 	was 	for 	employees 	to 	sign 	in 	on 	a 	master 	time 	sheet
upon 	arrival 	and 	sign 	out 	before 	leaving. 	Employees 	working 	in
diverse 	locations 	on 	campus, 	such 	as 	custodians, 	reported
directly 	to 	their 	worksites. 	Several 	employees 	and 	the
director 	of 	personnel, 	Slade 	Lindeman, 	testified 	that 	this 	was
an 	informal, 	flexible 	system. 	This 	system 	was 	changed 	in July
and 	August 	of 	1979 	when 	employees 	were 	required 	to 	"punch 	jn"
and 	"punch 	out" 	on 	time 	clocks 	at 	a 	central 	location 	and 	follow
stricter 	timekeeping 	procedures. 	It 	is 	the 	implementation 	of
4"Employee 	organization" 	is 	defined 	in 	section 	3562(g).
"Higher 	education 	employer" 	is 	defined 	in 	section 	3562(h).
4

this 	new 	time 	clock 	system which 	is 	the 	subject 	of 	this 	unfair
practice 	charge.
Emmett Nannery's 	"Letter 	Writing Campaign"
Emmett 	Nannery 	was 	employed 	in 	plant 	operations 	as 	a
carpenter 	in 	the 	building 	trades 	section. 	He 	had 	been 	an
active member 	of 	the 	California 	State Employees 	Association
(hereafter 	CSEA). 	In mid-1978, 	he 	became 	a member 	of
CAUSE-SEIU 	and 	became 	active 	in 	that 	organization. 	For 	several
years 	prior 	to 	the 	filing 	of 	this 	charge, 	Nannery 	had
complained 	about 	an 	alleged 	"double 	standard" 	of 	time 	reporting
for 	employees 	and 	supervisors, 	alleged 	changes 	by 	supervisors
in 	time 	sheets, 	and 	claimed 	harassment 	by 	his 	own 	supervisor,
Lou Morsilli, 	for 	tardiness. 	These 	complaints 	took 	the 	form 	of
both 	grievances 	and 	letters 	to 	the 	administration.
On October 	10, 	1977, 	Nannery 	filed 	a 	grievance 	with 	a CSEA
representative, 	alleging, •inter 	alia, 	that 	he 	had 	been 	harassed
by 	his 	supervisor 	for 	tardiness 	when 	he 	had 	not 	been 	tardy. 	On
March 	17, 	1978, 	he 	sent 	a 	letter 	to 	Executive 	Dean William
Vandenburg, 	charging 	that 	Administrative 	Assistant 	George
Anderson 	was 	abusing 	his 	lunch 	hour 	by 	taking 	"extended
lunches." 	Vandenburg 	replied 	on April 	17, 	saying 	that 	any
complaints 	about 	Anderson's 	time 	were 	the 	responsibility 	of 	Don
Farley. 	Nannery 	wrote 	back 	to Vandenburg 	on 	April 	26, 	1978,
sending 	a 	copy 	to Farley, 	claiming 	that 	Farley 	had 	not 	done
5

anything 	about 	the 	problem 	and 	that 	he 	had 	been 	subjected 	to
verbal 	abuse 	from 	his 	supervisor 	because 	of 	his 	complaints.
On May 	11, 	1978, 	Nannery made 	f~rther 	allegations
concerning Anderson's 	extended 	lunches, 	also 	sending 	copies 	to
several 	legislators 	and 	University officials. 	Vandenburg
replied 	on May 	25, 	again 	directing Nannery 	to 	go 	through
Farley. 	On June 	9, 	Lou Morsilli, 	Nannery~s 	supervisor.
recommended 	that 	Nannery 	be 	reprimanded 	for 	tardiness 	and
"inappropriate 	language." 	On June 	26, 	1978, 	Nannery 	sent
another 	letter 	to Vandenburg, 	repeating 	his 	allegations 	against
Anderson, 	and 	also mentioning 	"fraudulent 	recording 	of 	time."
Farley 	received 	a 	copy 	of 	this 	letter, 	as 	well 	as 	previous
correspondence. 	On 	January 	24r 	1979, 	Nannery 	sent 	a memo 	to
Vice 	President 	Robert 	A. 	Kennelly 	(again with 	a 	copy 	to Farley}
repeating 	his 	charges, 	and 	also 	alleging 	that 	a 	supervisor 	was
recruiting 	employees 	for 	outside 	work 	during 	normal 	working
hours, 	encouraging 	them 	to 	call 	in 	sick 	so 	that 	they 	could 	be
paid 	twice. 	This 	last 	allegation 	was 	related 	to 	a 	grievance 	on
behalf 	of 	an 	employee 	who 	had 	called 	in 	sick 	when 	working 	on 	an
outside 	job 	in 	which 	Nannery was 	involved 	as 	a 	representative
of 	the 	charging 	party.
During 	this 	time, 	Nannery 	had 	also 	been 	involved 	in 	several
other 	grievances. 	In 	mid-1978, 	he 	was 	the 	first 	person 	to 	join
CAUSE-SEIU 	in 	plant 	operations, 	becoming 	one 	of 	the 	most 	active
members 	there. 	Overall, 	it 	is 	apparent 	that 	Nannery 	had 	been
6

involved 	in 	a 	prolific 	campaign 	of 	letters 	and 	grievances 	for
several 	years, 	both 	individually, 	and 	as 	a 	representative 	of
CSEA, 	and 	later 	CAUSE-SEIU. 	The 	two main 	thrusts 	of 	this
campaign 	were 	an 	alleged 	"double 	standard" 	and 	claimed 	abuses
of 	timekeeping 	by 	supervisors.
Organizing Activity 	by 	the 	Charging 	Party
In September 	1977, 	Alexis 	Rankin 	began 	organizing 	on 	the
Hayward 	campus 	for 	CAUSE-SEIU. 	In 	mid-1978, 	during 	the
exchange 	of 	correspondence 	between Nannery 	and Vandenburg, 	she
began 	to 	organize 	in 	plant 	operations. 	Nannery was 	the 	first
to 	sign 	up, 	switching 	from 	CSEA. 	Union meetings 	were 	held 	on
campus, 	with 	the 	knowledge 	of Farley. 	Although 	there 	was
conflicting 	testimony 	as 	to 	the 	Union's 	actual 	membership 	in
plant 	operations, 	it 	appears 	that 	this 	was 	one 	of 	the 	Union's
strongest 	areas 	on 	campus.
When 	the 	decision 	was-announced 	to 	institute 	time 	clocks,
CAUSE-SEIU, 	along 	with 	Nannery, 	became 	associated 	with
opposition 	to 	the 	new 	system, 	and 	much 	of 	the 	Union 	activity 	in
plant 	operations 	centered 	around 	this 	issue.
On July 	2, 	1979, 	the 	charging 	party 	filed 	a 	petition 	for
certification 	with 	the 	Public Employment 	Relations 	Board,
seeking 	to 	represent 	a 	systemwide 	unit 	of 	non-craft maintenance
personnel 	in 	the 	California State University 	system, 	which
would 	include 	most 	of 	the 	Hayward 	plant 	operations 	employees.
7

CSEA 	also 	filed 	a 	petition 	for 	a 	similar 	systemwide 	unit 	of
both 	skilled 	and 	unskilled 	employees.
The 	Decision 	to 	Switch 	to Time 	Cloc~s
Don 	Farley 	was 	responsible 	for 	the 	decision 	to 	use 	time
clocks 	in 	plant 	operations. 	Although 	the 	record 	is 	vague 	as 	to
the 	exact 	time 	the 	decision 	was 	made, 	it 	was 	undoubtedly 	before
January 	15, 	1979, 	when 	the 	clocks 	were 	ordered.
On May 	9, 	1978, 	Ed Nordstrom, 	the 	business 	manager, 	wrote 	a
memo 	to 	the 	effect 	that 	"as 	a 	result 	of 	Emmett 	Nannery's
concerns," 	there 	should 	be 	a 	review 	of 	timekeeping 	procedures
in 	plant 	operations. 	Time 	clocks 	were 	not mentioned 	in 	this
memo. 	Vandenburg 	testified 	that 	Farley 	first 	mentioned 	the
subject 	of 	time 	clocks 	to 	him 	in 	the 	spring 	of 	1978~ 	and 	that
he 	subsequently made 	inquiries 	within 	the 	administration 	for
Farley.
The 	first 	documented 	reference 	to 	time 	clocks 	occurred 	on
August 	15, 	1978, 	when Vandenburg 	reported 	to Farley 	that
conversion 	to 	time 	clocks 	had 	received 	"tacit 	approval" 	in 	the
administration. 	Farley 	testified 	that 	in 	the 	fall 	of 	1978, 	he
asked 	Slade 	Lindeman, 	the 	personnel 	director, 	whether
implementing 	time 	clocks 	would 	be 	0 legal." 	Lindeman 	confirmed
that 	it 	was. 	On December 	1, 	1978, 	Vandenburg 	asked Farley 	to
prepare 	a 	written 	procedure 	regarding 	the 	recording 	and
movement 	of 	personnel 	records, 	referring 	to Nordstrom's 	memo of
May 	9, 	and 	specifically mentioning 	time 	clocks. 	On January 	15,
8

1979, 	two 	time 	clocks 	were 	ordered.
Request 	to Meet 	and Confer
Plant 	operations 	employees 	first 	became 	aware 	of 	the
decision 	to 	switch 	to 	time 	clocks 	after 	Farley 	sent 	a memo
announcing 	the 	decision 	to 	his 	supervisors, 	dated 	February 	6,
1979. 	On March 	21, 	CAUSE-SEIU made 	a 	request 	to meet 	and
confer, 	simultaneously 	distributing 	a 	leaflet 	among employees
(with 	a 	copy 	delivered 	to Farley) 	protesting 	the 	time 	clock
decision 	and 	listing 	Emmett 	Nannery 	as 	the 	Union 	representative
in 	plant 	operations. 	Before 	a 	formal 	response 	to 	the 	Union's
request 	was 	issued, 	Farley 	sent 	the 	following 	memo 	to Nannery,
Vandenburg, 	and 	all 	plant 	operations 	supervisors:
Your 	letter 	writing 	campaign 	has 	resulted 	in
a 	through 	(sic) 	review 	of 	the 	timekeeping 	in
plant 	operations. 	Installing 	time 	clocks 	is
the 	last 	step 	in 	that 	review process. 	With
your 	concurrence, 	I 	would 	like 	to 	place 	this
plaque 	on 	each 	of 	the 	clocks.
This 	time 	clock 	installed 	to 	commemorate
EMMETT 	NANNERY's
contributions 	to 	accurate 	timekeeping
c.s.u.H.5
5Nannery 	testified 	that 	he 	talked 	to Farley 	about 	this
"plaque memo" 	after 	he 	took 	a 	couple 	days 	to 	"cool 	off."
According 	to Nannery, 	when 	he 	asked 	Farley 	what 	was 	the 	reason
for 	the 	memo, 	Farley 	pulled 	out 	a 	file 	and 	pointed 	to 	a 	letter
which, 	by 	Nannery's 	description, 	appeared 	to 	be 	one 	of 	the
letters 	sent 	to Vandenburg 	by Nannery. 	Farley 	did 	not 	recall
9

On April 	2, 	Ellis McCune, 	president 	of 	the 	Hayward 	campus,
formally 	replied 	to 	the 	Union's 	request, 	naming Vandenburg 	as
his 	representative 	to meet 	wi.th 	the'Union. 	On April 	20, 	before
the 	meeting 	took 	place, 	the 	time 	clocks 	were 	installed.
On April 	26, 	a meeting 	was 	held 	at 	which 	representatives 	of
both 	the 	Union 	and 	the 	University were 	present. 	At 	that
meeting, 	the 	Union 	protested 	the University's 	failure 	to meet
before 	the 	clocks 	were 	installed, 	and 	made 	two 	requests 	-- 	that
Vandenburg 	meet 	with 	all 	plant 	operations 	employees 	to 	discuss
time 	clocks, 	and 	that 	a 	vote 	be 	taken 	among 	employees 	on 	the
subject. 	At 	the 	end 	of 	the 	meeting, 	the 	Union 	presented 	a
grievance, 	signed 	by 	39 	employees, 	alleging 	that 	the 	University
violated 	section 	3530 	of 	the Government Code 	(which 	was 	then
still 	in 	effect) 	by 	failing 	to meet 	and 	confer 	prior 	to 	the
installation of 	the 	time 	clocks.
On May 	8, 	1979, 	the 	University 	responded 	to 	both 	the
grievance 	and 	the 	Union~s 	requests. 	Vice 	President 	of
Administration Robert 	Kennelly 	found 	the 	grievance 	not 	within
the 	scope 	of 	the 	grievance 	procedure 	and 	dismissed 	it.
Vandenburg 	partially 	granted 	the 	Union's 	request 	for 	a meeting
with 	all 	plant 	operations 	employees 	by 	arranging 	a 	series 	of
any 	such 	meeting. 	However, 	because 	of 	Farley's 	general
evasiveness 	on 	this 	matter 	during 	his 	testimony, 	it 	is 	found
that 	Nannery's 	testimony on 	this 	matter 	is 	essentially 	correct.
10

three 	meetings 	on May 	11. 	The 	request 	for 	an 	election 	on 	the
matter 	was 	denied.
At 	the May 	11 	meetings, 	Vandenburg 	and 	Farley 	discussed 	the
reasons 	for 	installing 	the 	time 	clocks 	and 	the 	procedures 	for
implementing 	them, 	while many employees 	expressed 	their
dissatisfaction 	with 	the 	decision. 	The Union 	conducted 	its 	own
election 	on May 	20, 	reporting 	an 	overwhelming 	majority of 	those
voting 	were 	against 	time 	clocks.
On July 	6, 	another 	meeting 	was 	held 	at 	the 	request 	of 	the
Union 	(the 	only meeting 	after 	the 	effective 	date 	of 	the 	Act).
The 	result 	of 	the 	vote 	was 	presented. 	(There 	is 	a 	dispute 	as
to 	whether 	the 	accusation 	that 	the 	time 	clocks 	were 	being
installed 	in 	retaliation 	for 	Union 	activity was 	made 	at 	this
meeting. 	That 	dispute 	need 	not 	be 	resolved 	here.) 	President
McCune 	wrote 	to 	the 	Union 	on July 	19, 	indicating 	that 	after
reviewing 	the 	matter, 	he 	fiad 	decided 	it 	was 	best 	to 	continue
plans 	to 	implement 	the 	time 	clocks.
On July 	16, 	1979, 	employees 	were 	required 	to 	use 	the 	time
clocks, 	in 	stages. 	Office 	staff, 	including 	Farley, 	were 	the
first 	to 	use 	the 	new 	system. 	Then 	each 	section 	of 	plant
operations, 	one-by-one, 	was 	required 	to 	punch 	in 	at 	a 	central
location. 	Along 	with 	the 	actual 	use 	of 	the 	time 	clocks, 	the
accompanying 	procedures 	developed 	by Farley were 	implemented.
The Union made 	a 	request 	to meet 	and 	confer 	on September 	24,
which 	was 	denied. 	This 	charge 	was 	filed 	on October 	10.
11

Subsequent 	to 	the 	filing 	of 	this 	charge, 	the 	University 	denied
another 	request 	by 	the 	Union 	to meet 	and 	confer. 	The
systemwide 	policy of 	the 	University'was 	that 	it 	no 	longer 	had
any 	obligation 	to meet 	and 	confer 	with 	an 	employee 	organization
which 	was 	not 	an 	exclusive 	representative 	according 	to 	the
Act. 	The 	University 	also 	dismissed 	a 	grievance 	which 	was
essentially 	a 	copy of 	the 	April 	26 	grievance.
STATEMENT OF THE 	ISSUES
1. 	Can 	evidence 	of 	conduct 	prior 	to 	the 	six-month
limitation 	period 	of 	section 	3563.2(a) 	or 	prior 	to 	the
effective 	date 	of 	the Act 	be 	used 	to 	shed 	light 	on 	the 	true
motive 	for 	the 	implementation 	of 	time 	clocks, 	or 	does 	reliance
on 	such 	evidence 	bar 	the 	charge 	as 	untimely?
2. 	was 	the 	implementation 	of 	time 	clocks 	in 	plant
operations 	a 	reprisal 	for 	protected 	activity?
3. 	What 	statutory duty, 	if 	any, 	does 	the 	employer 	have 	to
meet 	and 	consult 	with 	a 	nonexclusive 	representative 	before 	an
exclusive 	representative 	is 	chosen?
4. 	Did 	the 	refusal 	of 	the 	University 	to 	consider 	the
merits 	of 	grievances 	filed 	by 	the 	charging 	party 	violate
section 	357l(a) 	and 	(b)?
DISCUSSION
The 	Charge 	is 	not 	Barred 	by 	Section 	3563.2(a)
In 	its 	brief, 	the 	University 	asked 	that 	this 	charge 	be
dismissed 	as 	untimely 	filed, 	or, 	in 	the 	alternative, 	that 	all
12

evidence 	prior 	to 	the 	six-month 	limitation 	period 	be 	excJuded.
For 	the 	reasons 	discussed 	below, 	it 	is 	found 	that 	the 	charge
was 	timely 	filed, 	and 	that 	evidence'prior 	to 	the 	six-month
limitation 	period 	may 	be 	considered 	in 	providing 	background 	to
the 	employer's 	action 	within 	the 	statute 	of 	limitations.
Section 	3563.2(a) 	provides, 	in 	relevant 	part, 	that:
..• 	the 	board 	shall 	not 	issue 	a 	complaint
in 	respect 	of 	any 	charge 	based 	upon 	an 	.
alleged 	unfair 	practice 	occurring 	more 	than
six months 	prior 	to 	the 	filing 	of 	the 	charge.
This 	charge 	was 	filed 	on October 	10, 	1979. 	Therefore, 	any
conduct 	prior 	to April 	10 may 	not 	be 	the 	basis 	for 	an 	unfair
practice 	charge. 	The Act 	became 	effective 	on July 	1, 	1979.
Therefore, 	conduct 	before 	this 	date 	similarly may 	not 	be 	the
basis 	for 	an 	unfair 	practice 	charge. 	The 	University 	points 	out
that, 	although 	the 	time 	clocks 	were 	implemented 	both 	within 	the
statute 	of 	limitations 	and 	after 	the 	effective 	date 	of 	the Act,
the 	decision 	to 	implement 	the 	time 	clocks, 	and 	the 	announcement
to 	employees 	of 	the 	decision, 	occurred 	before 	the 	six-month
limitation 	period.
The 	basis 	for 	this 	charge, 	however, 	is 	not 	the 	decision 	to
implement 	time 	clocks, 	but 	the 	actual 	implementation. 	It 	was
this 	act 	which 	arguably 	constituted 	a 	retaliation 	for 	union
activity. 	Before 	this, 	the 	employer's 	actions 	constituted 	only
an 	arguable 	threat 	of 	reprisal, 	not 	a 	reprisal 	itself. 	(A
• 	threat 	of 	reprisal 	could 	constitute 	a 	separate 	and 	distinct
violation 	under 	circumstances 	other 	than 	those 	alleged 	here.)
13

Similarly, 	in Oceanside-Carlsbad 	Federation of 	Teachers 	(1979)
PERB 	Decision No. 	89, 	the 	Board 	ruled 	that 	the 	six-month
limitation 	period 	did 	not 	begin 	to 	tun 	when 	the 	decjsJo~ 	to
transfer 	a 	teacher 	was 	made, 	but 	when 	the 	actual 	transfer
occurred.
Respondent 	also 	argues 	that 	all 	evidence 	dated 	prior 	to
April 	10, 	1979, 	and 	all 	testimony 	as 	to 	events 	prior 	to 	that
date, 	should 	be 	excluded. 	This 	raises 	the 	question of 	whether
section 	3563.2(a) 	can operate 	as 	a 	rule 	of 	evidence, 	as 	well 	as
a 	statute 	of 	limitations.
Section 	3563.2(a) 	of 	the 	Government 	Code 	is 	similar 	to
section 	l0(b) 	of 	the 	National 	Labor 	Relations 	Act6. 	The
leading 	case 	interpreting 	section 	l0(b) 	of 	the 	NLRA 	is 	IAM
Local 	Lodge 	1424 	v. 	NLRB 	(1960) 	362 	U.S. 	411 	[45 	LRRM 	3212].
There, 	a 	party 	sought 	to 	block 	the 	enforcement 	of 	an 	otherwise
legal 	contract, 	which 	was.illegally 	entered 	into 	without
majority 	support 	before 	the 	six-month 	limitation 	period, 	by
means 	of 	an 	unfair 	practice 	charge. 	The Court 	found 	the 	charge
was 	based 	on 	the 	formation 	of 	the 	contract, 	not 	its
enforcement, 	and 	the 	charge 	therefore 	was 	barred. 	In
629 	u.s.c. 	151 	et 	seq. 	Feder.al 	precedent 	interpreting
similar 	provisions 	of 	federal 	labor 	law may 	be 	used 	as 	guidance
in 	interpreting California 	labor 	legislation. 	Fire Fighters 	v.
City 	of Vallejo 	(1974) 	12 	Cal.3d 	608 	[116 	Cal. 	Rptr. 	5 	7)1
Sweetwater 	Union High 	School 	District 	(1976) 	PERB 	Decision
No. 	4.
14

distinguishing 	those 	situations 	where 	section 	l0(b)
also 	operates 	as 	a 	rule 	of 	evidence, 	the Court 	said:
•.• 	due 	regard 	for 	the 	purposes 	of
section 	l0(b) 	requires 	that 	two 	different
kinds 	of 	situations 	be 	distinguished. 	The
first 	is 	one 	where 	occurrences 	within 	the
six-month 	limitations period 	in 	and 	of
themselves 	may 	constitute, 	as 	a 	substantive
matter, 	unfair 	labor 	practices. 	There,
earlier 	events 	may 	be 	utilized 	to 	shed 	light
on 	the 	true 	character 	of 	matters 	occurring
within 	the 	limitations 	period: 	and 	for 	that
purpose, 	section 	l0(b) 	ordinarily 	does 	not
bar 	such 	evidentiary 	use 	of 	anterior
events. 	The 	second 	situation 	is 	that 	where
conduct 	occurring 	within 	the 	limitations
period 	can 	be 	charged 	to 	be 	an 	unfair 	labor
practice 	only 	through 	reliance 	on 	an 	earlier
unfair 	labor 	practice. 	There, 	the 	use 	of
the 	earlier 	unfair 	labor 	practice 	is 	not
merely 	"evidentiary," 	since 	it 	does 	not
simply 	lay 	bare 	a 	putative 	current 	unfair
labor 	practice. 	Rather, 	it 	serves 	to 	cloak
with 	illegality 	that 	which 	was 	otherwise
lawful 	(362 	U.S. 	at 	416-17, 	45 LRRM 	at
3214-15).
Later 	cases 	applying 	Local 	Lodge 	have 	emphasized 	the 	time 	at
which 	the 	aggrieved 	party 	could 	have 	filed 	a 	charge 	as
determinative. 	See 	e.g., 	NLRB 	v. 	Longshoremen 	(9th Cir. 	1977)
549 	F.2d 	698 	[94 	LRRM 	3072]: 	Communication Workers 	v. 	NLRB 	(2d
Cir. 	1975) 	520 	F.2d 	411 	[84 	LRRM 	3028]. 	In 	Beckett Aviatlon
Corp. 	(1975) 	218 	NLRB 	238 	[89 LRRM 	1341], 	the NLRB 	ruled 	that
pre-limitation 	interrogations 	and 	threats 	by 	an 	employer 	are
barred 	as 	independent 	charges 	by 	section 	l0(b), 	but 	they 	still
may 	be 	used 	to 	prove 	unlawful 	motivation 	for 	conduct 	within 	the
limitation 	period.
15

Applying 	Local 	Lodge 	and 	subsequent 	cases 	to 	the 	instant
case, 	it 	is 	apparent 	that 	this 	unfair 	practice 	falls 	within 	the
first 	category 	described 	in Local 	Lodg!. 	That 	is,
pre-limitation 	conduct 	may 	be 	used 	to 	"shed 	light" 	on 	the
motivation 	for 	the 	implementation of 	the 	time 	clocks. 	Such
evidence 	would 	tend 	to 	show 	the 	intent 	of 	the 	respondent 	in
implementing 	time 	clocks 	and 	the 	protected 	activity 	of
employees 	for 	which 	this 	action 	was 	allegedly 	a 	reprisal.
Motive 	is 	an 	element 	in 	a 	reprisal 	case.
More 	important, 	it 	is 	not 	necessary 	to 	establish 	the
illegal 	nature 	of 	the 	announcement 	of 	the 	decision 	to 	implement
time 	clocks 	in 	order 	to 	find 	that 	the 	implementation 	itself 	was
illegal, 	unlike ~ocal 	Lodge, 	where 	it 	was 	necessary 	to 	prove
the 	illegality of 	the 	agreement 	in 	order 	to 	find 	the
enforcement 	of 	the 	agreement 	illegal. 	What 	must 	be 	proven 	here
is 	unlawful 	motive 	for 	the 	conduct. 	And, 	relevant 	evidence 	of
unlawful 	motivation may 	go 	back 	long 	before 	the 	action 	on 	which
an 	unfair 	practice 	allegation 	is 	based. 	It 	would 	defeat 	the
purposes 	of 	the 	Act 	to 	"ignore 	reliable, 	probative, 	and
substantial 	evidence 	as 	to 	the 	meaning 	and 	the 	nature 	of 	the
conduct." 	Local 	Lodge, 	supra, 	at 	417 	[45 	LRRM 	at 	3215],
quoting 	from Axelson Mfg. 	Co. 	(1950) 	88 	NLRB 	761, 	766 	[25 	LRRM
1388].
For 	similar 	reasons, 	pre-Act 	conduct 	by 	the 	employer 	and
pre-Act 	protected 	activities 	by 	the 	employees may 	be 	used 	to
16

prove 	unlawful 	motivation 	for 	post-Act 	conduct. 	To 	hold
otherwise 	would 	effectively 	postpone 	the 	date 	when 	parties
would 	be 	protected 	by 	the 	provisions 	of 	the 	Act. 	See 	Radiant
Mills 	Co~ 	(1936) 	1 	NLRB 	274 	(1 	LRRM 46]; 	Kawano, 	Inc. 	(1977) 	3
ALRB 	No. 	54. 	This 	is 	not 	a 	case 	where 	the 	unlawful 	conduct
itself 	occurred 	before 	the 	effective 	date 	of 	the 	Act, 	as 	in
Petrone 	v. 	Pasadena Unified 	School 	District 	(5/12/77) 	PERB
Decision No. 	16 	(dismissing 	a 	charge 	based 	entirely on 	pre-Act
conduct).
The 	Implementation 	of 	Time Clocks 	was 	a 	Reprisal 	for 	Protected
Activity
In Oceanside-Carlsbad Federation 	of 	Teachers 	v. 	Carlsbad
Unified 	School 	Distr~ct 	(1/30/79) 	PERB 	Decision No. 	89, 	the
Board 	established 	a 	test 	to 	be 	used 	to 	determine 	whether 	there
has 	been 	a 	violation 	of 	section 	3543.5(a) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA), 	which 	is 	identical 	to
section 	3571(a} 	of 	HEERA.7 	First, 	" •.• 	a 	charge 	will 	be
sustained 	where 	it 	is 	shown 	that 	the 	employer 	would 	not 	have
engaged 	in 	the 	complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose 	or 	intent." 	Oceanside-Carlsbad, 	supra.
Second, 	a 	charge 	will 	be 	sustained 	if 	either, 	(a) 	the 	harm 	is
inherently 	destructive 	of 	employees' 	rights 	and 	the 	employer's
7see 	fn. 	1, 	supra, 	for 	full 	text 	of 	section 	357l(a).
17

conduct 	was 	not made 	necessary 	by 	circumstances 	beyond 	its
control 	where 	there 	was 	no 	alternative; 	or 	(b), 	there 	is 	slight
harm 	to 	the 	employees' 	rights 	and 	the 	harm 	outweighs 	any
operational 	necessity which 	may 	justify 	the 	action.
In 	the 	present 	case, 	it 	is 	found 	that 	"but 	for" 	the
employer's 	unlawful 	motive, 	the 	time 	clocks 	would 	not 	have 	been
implemented. 	Therefore, 	it 	is 	not 	necessary 	to 	determine
whether 	the 	harm 	is 	slight 	or 	inherently 	destructive.
A. 	The 	Protected Activity
"[S]ome 	nexus 	must 	exist 	between 	the 	exercise 	of 	employee
rights 	under 	the 	[HEERA] 	and 	the 	actions 	of 	the 	employer 	which
have 	provoked 	the 	filing 	of 	an 	unfair 	practice 	charge."
Oceanside-Carlsba,d .- 	_supra. 	In 	the 	present 	case, 	this 	protected
activity 	includes 	the 	grievances 	and 	"letter 	writing 	campaign"
of 	Emmett 	Nannery, 	the 	continujng 	organizing 	activities 	by 	the
charging 	party, 	and 	the 	continuting 	opposition 	to 	time 	clocks
itself.
There 	is 	no 	question 	that 	the 	filing 	of 	grievances 	is 	a
right 	of 	employees 	and 	therefore 	"protected 	activity."
Neilman 	v. 	Baldwin Park 	Unified 	School 	District 	(1979) 	PERB
Decision No. 	92. 	Nannery's 	"letter 	writing 	campaign," 	though
not 	a 	formal 	grievance, 	was 	conducted 	for 	the 	purpose 	of
adjusting 	employer-employee 	relations 	on 	behalf 	of 	himself
(harassment 	by 	his 	supervisor 	for 	tardiness) 	and 	other
employees 	(£raudulent 	recording 	of 	time, 	the 	"double
standard"). 	Such 	complaints 	also 	constitute 	protected 	activity.
18

See 	Springfield 	Library 	and Museum Association 	(1978) 	238 	NLRB
No. 	221 	[99 	LRRM 	1289].
In mid-1978, 	CAUSE-SEIU began 	to 	organize 	in 	plant
operations. 	This 	was 	the 	same 	time 	that Nannery was
corresponding 	with Dean Vandenburg. 	It 	was 	then 	that 	Nannery
joined SEIU 	and 	became 	one 	of 	its 	most 	active members, 	listed
as 	the 	"representative" 	of 	the 	Union 	in 	plant 	operations.
Union 	organizer 	Alexis 	Rankin 	testified 	that 	there 	was 	a 	great
deal 	of 	Union 	activity 	in 	plant 	operations 	subsequent 	to 	this,
which 	was 	known 	to Farley 	and 	the 	administration. 	Once 	the
decision 	to 	implement 	time 	clocks 	became 	known 	to 	employees,
this 	became 	a 	major 	issue 	of 	the 	Union. 	As 	pointed 	out 	in
respondent's 	brief, 	no 	other 	employee 	organization 	protested
the 	time 	clocks.
These 	protected 	activities, 	the 	grievances, 	the 	"letter
writing 	campaign," 	and Union 	organizing, 	are 	all 	connected
through 	Emmett 	Nannery 	and 	to 	the 	response 	to 	this 	activity,
the 	time 	clocks. 	Although much 	of 	this 	activity 	occurred
before 	the 	effective 	date 	of 	the 	Act, 	it may 	be 	used 	to 	show
the 	unlawful 	motivation of 	the 	employer. 	And, 	it 	is 	manifest
that 	the 	activity 	and 	the 	employer's 	"response" 	to 	it 	continued
both 	in 	fact 	and 	in 	effect, 	well 	beyond 	the 	operative 	date 	of
the 	Act. 	Most 	importantly, 	the 	retaliation 	itself 	occurred
after 	the 	effective 	date. 	Freedom from 	retaliation 	for
organizational 	activity 	is 	the 	statutory 	right 	at 	stake 	here.
See 	Radiant Mills 	Co. 	(1936) 	1 	NLRB 	274 	[1 	LRRM 	46]. 	The
19

employer's 	action, 	if 	not 	remedied, 	could 	have 	a 	chilling
effect 	on 	future 	protected 	conduct 	by 	employees, 	and 	could 	tend
to 	influence 	the 	representation 	election 	now 	pending.
B. 	"But 	for" 	the 	Protected Activity of 	Nannery 	and 	the 	Union,
the 	Time 	Clocks Would 	Not 	Have 	Been 	Implemented
In 	proving 	unlawful 	intent, 	the 	Board 	said, 	in Oceanside-
Carlsbad, 	supra:
Unlawful 	motivation, 	purpose 	or 	intent 	is
essentially 	a 	state 	of 	mind, 	a 	subjective
condition 	generally 	known 	only 	to 	the
charged 	party. 	Direct 	and 	affirmative 	proof
is 	not 	always 	available 	or 	possible.
However, 	following 	generally 	accepted 	legal
principles, 	the 	presence 	of 	such 	unlawful
motivation, 	purpose 	or 	intent may 	be
established 	by 	inference 	from 	the 	entire
record. 	[Footnote 	omitted.]
The 	National 	Labor 	Relations 	Board 	and 	the 	federal 	courts 	have
developed 	a 	set 	of 	legal 	principles 	for 	establishing 	unlawful
intent 	in order 	to 	prove 	discrimination 	in 	violation of
section 8(a) (3) 	of 	the 	Labor-Management Relations 	Act.8
8section 	8(a} (3) 	of 	the 	Labor-Management 	Relations 	Act
reads, 	in 	relevant 	part:
[It 	shall 	be 	an 	unfair 	labor 	practice 	for 	an
employer-] 	by 	discrimination 	in 	regard 	to
hire 	or 	tenure 	of 	employment 	or 	any 	term 	or
condition 	of 	employment 	to 	encourage 	or
discourage 	membership 	in 	any 	labor
organization~ 	..•
See 	fn. 	6, 	supra, 	regarding 	the 	applicability of 	federal
precedent 	where 	a 	provision 	of 	a 	federal 	labor 	statute 	is
analogous 	to 	that 	of 	a 	state 	labor 	statute.
20

Under 	federal 	precedent" •.• 	specific 	evidence 	of 	intent
to 	encourage 	or 	discourage 	is 	not 	an 	indispensable 	element 	of
proof •.•• " 	Radio Officers 	Union 	v. 	NLRB 	(1954) 	347 	U.S. 	17,
[33 	LRRM 	2417, 	2428]. 	"[W]hen 	specific evidence 	of 	a
subjective 	intent 	to 	discriminate 	or 	to 	encourage 	or 	discourage
Union membership 	is 	shown, 	and 	found, 	many otherwise 	innocent
or 	ambiguous 	actions 	which 	are 	normally 	incident 	to 	the 	conduct
of 	a 	business 	may, 	without more, 	be 	converted 	into 	unfair 	labor
practices." 	NLRB 	v. 	Erie 	Resistor 	Corp. 	(1963) 	373 	U.S. 	221,
227 	[53 	LRRM 	2121, 	2124]. 	Such 	an 	evidentiary 	standard 	is
appropriate 	here, 	as 	well.
Here, 	however, 	there 	is 	direct 	evidence 	that 	the 	time
clocks 	were 	in 	response 	to, 	at 	least, 	the 	"letter 	writing
campaign" 	by 	Nannery. 	Farley's 	"plaque" 	memo, 	claiming 	that
the 	time 	clocks 	were 	being 	installed 	as 	a 	result 	of 	the 	"letter
writing 	campaign," 	and 	commemorating 	"Emmett Nanne.ry' s
contributions 	to 	accurate 	timekeeping," 	is 	possibly 	the 	closest
thing 	to 	a 	direct 	admission of 	unlawful 	intent. 	Although
Farley 	testified 	that 	this memo 	was 	just 	a 	joke, 	the
circumstantial 	evidence 	surrounding 	the 	memo 	only 	confirms
Farley's 	true 	intent. 	It 	was 	sent 	not 	only 	to Nannery, 	but 	to
all 	plant 	operations 	supervisors 	and Dean Vandenburg. 	Plant
operations 	employees 	also 	saw 	the memo. 	The memo 	was 	issued
within 	days 	of 	the 	Union's 	first 	request 	to meet 	and 	confer,
and 	the 	accompanying 	distribution 	of 	a 	leaflet 	protesting 	time
21

clocks 	which 	listed 	Emmett 	Nannery 	as 	one 	of 	the 	plant
operations 	representatives 	for 	the 	Union, 	both of 	which 	were
sent 	to Farley 	just 	prior 	to 	his memo. 	A statement 	coercive
enough 	to 	interfere 	with 	employee 	rights 	need 	not 	be 	an
explicit 	denial 	of 	those 	rights. 	See 	Rio Hondo Community
College 	District 	(1980) 	PERB 	Decision No. 	128, 	concurring
opinion, 	pp. 	26-27.
The 	timing 	of 	several 	actions 	by 	the 	respondent
suspiciously 	follows 	on 	the 	heels 	of 	protected 	activity.
Farley 	testified 	that 	he 	made 	the 	decision 	to 	implement 	time
clocks 	approximately 	in August. 	This 	would 	immediately 	follow
both Nannery's 	"letter 	writing 	campaign" 	and 	the 	beginning 	of
organizing 	activity 	by 	SEIU 	in 	plant 	operations. 	As 	mentioned
above, 	the 	"plaque 	memo" 	immediately 	followed 	the 	Union's 	meet
and 	confer 	request 	and 	accompanying 	leaflet. 	Finally,
employees 	were 	required 	to 	actually 	use 	the 	time 	clocks 	shortly
after 	the 	petition 	for 	certification 	had 	been 	filed 	by 	CAUSE-
SEIU. 	Although 	the 	timing 	of 	each 	of 	these 	actions 	alone 	may
be 	explained 	by 	coincidence, 	together 	they 	suggest 	a 	pattern 	of
unlawful 	intent 	to 	discourage 	and 	disparage 	protected 	activity,
and 	cast 	the 	responsibility 	for 	implementing 	the 	time 	clocks 	on
Nannery 	and 	the 	Union.
Farley 	also 	admitted 	that 	he 	knew 	the 	time 	clocks 	would 	be
met 	by 	resistance. 	He 	found 	it 	necessary 	to 	consult 	with 	the
Personnel 	Director 	as 	to 	whether 	it 	was 	legal. 	The 	hearing
22

officer 	also 	takes 	note 	of 	the 	fact 	that 	time 	clocks 	can 	be
viewed 	as 	demeaning 	to 	employees, 	and 	may 	be 	used 	effectively
as 	a 	symbol 	of 	stricter 	working 	conditions 	which 	would 	be
imposed 	if 	the 	employees 	"brought 	in 	the Union." 	See 	e.g.,
Jocquel 	Supply Co. 	(1971) 	192 	NLRB 	485 	[77 	LRRM 	1909], 	finding
time 	clocks 	part 	of 	a 	course 	of 	action 	to 	penalize 	workers 	for
support 	of 	a 	Union. 	See 	also, 	Knapp Foods, 	Inc. 	(1980)
247 	NLRB 	No. 	146 	[103 	LRRM 	1276]: 	Sevakis 	Industries, 	Inc.
(1978) 	238 	NLRB 	No. 	50 	[99 	LRRM 	1682].
Respondents 	raise 	the 	defense 	of 	legitimate 	business
justification 	for 	the 	time 	clocks. 	In 	fact, 	they 	claim, 	the
time 	clocks 	were 	but 	a 	legitimate 	response 	to 	the 	"concerns
raised 	by 	Emmett 	Nannery." 	Nannery's 	testimony made 	it 	clear.
that, 	both 	at 	the 	time 	of 	his 	grievances 	and 	after 	the 	plaque
memo, 	time 	clocks 	were 	far 	from 	what 	he 	envisioned 	as 	an
innocuous 	~olution. 	He 	was 	so 	insulted 	by 	the 	"plaque" 	memo
that 	he 	had 	to 	"cool 	off" 	for 	a 	couple 	days 	before 	seeing
Farley 	in 	order 	to 	avoid 	losing 	his 	temper. 	Several 	other
employees 	in 	addition 	to Nannery 	testified 	that 	the 	time 	clocks
did 	not 	alleviate 	any 	of 	the 	timekeeping 	or 	attendance
problems, 	and may, 	in 	fact, 	have 	aggravated 	them. 	Ed
Nordstrom, 	the 	personnel 	director, 	admitted 	that 	most 	of 	the
problems 	in 	plant operations 	were 	"supervisory," 	and 	would 	not
be 	solved 	by 	time 	clocks.
Time 	clocks 	are 	rare 	in 	the 	California State University 	and
23

College 	system, 	a 	fact 	which makes 	their 	implementation 	appear
to 	be 	more 	in 	the 	nature 	of 	a 	reprisal. 	See 	e.g., 	Nathan
Littauer 	Hospital 	Association 	(1977j 	229 	NLRB 	1122 	(95 	LRRM
1296], 	involving 	a 	failure 	to 	negotiate 	over 	the 	imposition 	of
time 	clocks 	for 	nurses. 	Time 	clocks 	have 	been 	used 	in 	the
library 	and 	the 	admissions 	and 	records 	office 	of 	the 	Hayward
campus, 	but 	respondent 	offered 	no 	evidence 	as 	to 	any
improvement 	in 	these 	departments 	after 	time 	clocks 	were
implemented. 	Although 	respondent 	points 	to 	the 	size 	and
diverse 	wor~ 	locations 	of 	plant 	operations, 	it 	offers 	no
explanation 	as 	to why 	other 	campuses 	did 	not 	find 	a 	need 	to 	use
time 	clocks 	in 	plant 	operations, 	nor 	has 	it 	offered 	any
evidence 	to 	show 	that 	this 	was 	a 	factor 	in 	the 	decision.
Where 	a 	"duaJ. 	motive" 	for 	an 	employer's 	action may 	exist,
several 	tests 	have 	been 	proposed 	regarding 	how 	dominant 	a 	role
the 	unlawful 	motive 	must 	play. 	See Morris, 	The 	Developing
Labor 	Law 	(1978 	supplement) 	pp. 	25-26. 	The 	"but 	for" 	test
described 	in Oceanside-Carlsbad 	is 	similar 	to 	that 	enunciated
by 	the U.S. 	Supreme Court 	in Mt. 	Healthy City Board 	of
Education 	v. 	~oyle 	(1977) 	429 	U.S. 	274 	(50 	L.Ed.2d 	471],
involving 	the 	firing 	of 	a 	teacher 	for 	constitutionally
protected 	conduct. 	The 	court 	ruled 	that 	the 	plaintiff 	must
first 	prove 	that 	the 	constitutionally 	protected 	conduct 	was 	a
"substantial 	factor" 	or 	"motivating 	conduct" 	in 	the 	decision.
The 	defendant 	must 	then 	rebut 	and 	prove 	by 	the 	preponderance 	of
24

the 	evidence 	that 	it 	would 	have 	reached 	the 	same 	decision
without 	the 	protected 	conduct.9 	See 	also Bekiaris 	v. 	Board
of Education 	(1972) 	6 Cal.3d 	575 	[100 	Cal. 	Rptr. 	16]; 	NLRB 	v.
South Shore 	Hospital 	(1st Cir. 	1978) 	571 	F.2d 	677 	[97 	LRRM
3004], 	enunciating 	similar 	rules, 	and 	the 	discussion 	of 	the
Oceanside-Carlsbad 	"but 	for" 	test, 	supra.
Applying 	the 	"but 	for" 	test 	to 	the 	instant 	case, 	it 	is
found 	that 	respondent 	has 	done 	no more 	than 	suggest
. that
legitimate 	business 	concerns may 	have 	contributed 	to 	the
decision. 	It 	has 	not 	rebutted 	the 	overwhelming 	evidence 	that
the 	decision 	to 	implement 	time 	clocks 	would 	not 	have 	been made
if 	not 	for 	the 	protected 	activity of 	employees. 	In 	fact, 	it 	is
doubtful 	that 	the 	legitimate 	interest 	raised 	by 	respondent
would 	be 	served 	by 	the 	implementation 	of 	time 	clocks.
Finally, 	respondent 	points 	out 	that 	all 	plant 	operations
employees 	are 	required 	to-punch 	time 	clocks, 	including
supervisors 	and 	Farley 	himself. 	This 	was 	done 	at 	the 	request
of 	Dean Vandenburg, 	who was 	concerned 	that 	"otherwise
grievances 	would 	surely 	result." 	This 	did 	not 	diminish 	the
employees' 	dislike 	of 	the 	system, 	however, 	nor 	did 	it 	solve 	the
"supervisory" 	problems. 	It 	is 	also 	in 	line 	with 	the 	message 	of
9The Montana Supreme Court 	recently 	adopted 	this 	test 	in
determining 	unlawful 	motivation 	in 	unfair 	labor 	practice
charges. 	Board 	of 	Trustees 	of 	Billings 	School 	District 	v.
State 	of Montana 	(1980) 	Mont. 	[ 	P. 	2d 	, 	4 PBC
35,856]. 	--
25

the 	"plaque" 	memo--that 	because 	of 	Nannery 	and 	the 	union,
everyone 	now 	had 	to 	use 	time 	clocks.
Duty 	to Meet 	and 	Consult Under 	HEERA
The 	charging 	party has 	alleged 	that 	the 	respondent 	has
denied 	its 	rights 	as 	an 	employee 	organization 	in 	violation 	of
section 	357l(b). 	The 	"rights" 	respondent 	is 	alleged 	to 	have
denied 	include 	the 	right 	to meet 	and 	conferlO 	which, 	it
argues, 	derives 	from 	section 	3565, 	which 	reads:
Higher 	education 	employees 	shall 	have 	the
right 	to 	form, 	join 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of 	meeting 	and 	conferring. 	Higher
education 	employees 	shall 	also 	have 	the
right 	to 	refuse 	to 	join employee
organizations 	or 	to 	participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible 	under 	this 	chapter.
Charging 	party 	contends 	that 	this 	language 	evinces 	a
legislative 	intent 	to 	guarantee 	employees 	the 	right 	to
representation 	before 	an 	exclusive 	representative 	is 	chosen.
This 	argument 	finds 	support 	in 	section 	3560(e), 	legislative
findings:
lOsince 	the 	charging 	party 	is 	not 	an 	exclusive
representative, 	there 	can 	be 	no 	violation 	of 	section 	357l(c),
which 	reads:
Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive
representative. 	[Emphasis 	added.]
26

It 	is 	the 	purpose 	of 	this 	chapter 	to 	provide
the 	means 	by 	which 	relations 	between 	each
higher 	education 	employer 	and 	its 	employees
may 	assure 	that 	the 	.responsibilities 	and
authorities 	granted 	to 	the'separate
institutions 	under 	the 	Constitution 	and
statute 	are 	carried 	out 	in 	an 	atmosphere
which 	permits 	the 	fullest 	participation 	by
employees 	in 	the 	determination of 	conditions
of 	employment 	which 	affect 	them. 	It 	is 	the
intent 	of 	this 	chapter 	to 	accomplish 	thjs
purpose 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	employees 	of 	these
systems 	to 	full 	freedom 	of 	association,
self-organization, 	and 	designation 	of
representatives 	of 	their 	own 	choosin~ 	for
the 	purpose 	of 	representation 	in 	their
employment 	relationships 	with 	their
emploiers 	and 	to 	select 	one 	of 	such
organizations 	as 	their 	exclusive
representative 	for 	the 	purpose 	of meeting
and 	conferring. 	[Emphasis 	added.]
Since 	the Act 	was 	viewed 	as 	an 	extension 	of 	employees' 	rights,
to 	find 	that 	there 	was 	no 	duty 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	would 	leave 	employees 	without 	an
exclusive 	representative 	with 	less 	rights 	than 	previously, 	when
they 	were 	covered 	by 	the 	George 	Brown Act.ll
Respondent 	points 	out, 	however, 	that 	section 	3562(d)
llGov. 	Code 	section 	3525 	et 	seq. 	Section 	3530 	provides:
The 	state 	by means 	of 	such 	boards, 	commissions,
administrative 	officers 	or 	other 	representatives 	as
may 	be 	properly 	designated 	by 	law, 	shall 	meet 	and
confer 	with 	representatives 	of 	employee 	organizations
upon 	request, 	and 	shall 	consider 	as 	fully 	as 	such
representatives 	deem 	reasonable 	such 	presentations 	as
are made 	by 	the 	employee 	organization on 	behalf 	of 	its
members 	prior 	to 	arriving 	at 	a 	determination 	of 	policy
or 	course 	of 	action.
27

defines 	"meet 	and 	confer" 	as 	the, 	"mutual 	obligation 	of 	the
higher 	education 	employer 	and 	the 	exclusive
representat!_ve 	• 	" 	[Emphasis 	added.]12 	Thus, 	the 	duty 	to
meet 	and 	confer 	would 	not 	extend 	to 	nonexclusive
representatives.
In San 	Dieguito Union High 	School 	District 	(9/2/77) 	EERB
Decision No. 	22, 	the 	Boardl3 	held 	that, 	under 	the 	Educational
Employment 	Relations Act, 	there 	was 	no 	duty 	to meet 	and 	confer
with 	a 	nonexclusive 	representative. 	Subsequent 	to 	this
hed,· i ng: 	the 	'Board 	issued 	a 	decision 	in Professional
Engineers
12section 	3562(d) 	reads 	in 	ful.l:
"Meet 	and 	confer" 	means 	the 	performance 	of
the 	mutual 	obligation 	of 	the 	higher
education 	employer 	and 	the 	exclusive
representative 	of 	its 	employees 	to meet 	at
reasonable 	times 	and 	to 	confer 	in 	good 	faith
with 	respect 	to matters 	within 	the 	scope 	of
representation 	and 	to 	endeavor 	to 	reach
agreement 	on 	matters 	within 	the 	scope 	of
representation. 	The 	process 	should 	include
adequate 	time 	for 	resolution of 	impasses.
If 	agreement 	is 	reached 	between
representatives 	of 	the 	higher 	education
employer 	and 	the 	exclusive 	representative,
they 	shall 	jointly 	prepare 	a 	written
memorandum of 	such 	understanding 	which 	shall
be 	presented 	to 	the 	higher 	education
employer 	for 	concurrence. 	However, 	these
obligations 	do 	not 	compel 	either 	party 	to
agree 	to 	any 	proposal 	or 	to 	require 	the
making 	of 	a 	concessJon.
l3The 	PERB 	was 	previously 	known 	as 	the 	Educational
Employment 	Relations 	Board, 	or 	EERB.
28

in 	California Government 	(3/19/80) 	PERB 	Decision No. 	118-S.
Interpreting 	section 	3515.5 	of 	the 	State Employer-Employee
Relations 	Act 	(hereafter 	SEERA), 	whiph 	is 	nearly 	identical 	to
section 	3543.l(a) 	of 	the 	EERA 	interpreted 	in San 	Dieguito, 	the
Board 	held 	that 	there 	was 	a 	duty 	to meet 	and 	discuss 	wages 	with
a 	non-exclusive 	representative. 	Although 	not 	expressly
overruling 	San 	Dieguito, 	since, 	"that 	case 	was 	decided 	under
the 	EERA," 	Professional 	Engineers, 	supra, 	at 	footnote 	8, 	the
Board 	implicitly 	rejected 	the 	reasoning 	of 	that 	case, 	following
instead much 	the 	same 	argument 	as 	put 	forward 	by 	the 	charging
party 	in 	the 	instant 	case. 	The 	Board 	reasoned 	that:
The 	SEERA 	granted 	significant 	new 	collective
negotiations 	rights 	to 	state 	employees. 	If
we 	were 	to 	adopt 	respondent's 	argument 	that
nonexclusive 	representatives 	have 	no 	right
to meet 	and 	discuss 	wages 	with 	the 	state
employer, 	employees 	would 	be 	left 	with 	fewer
rights 	than 	they 	had 	before 	SEERA. 	It 	would
be 	anomalous 	for 	the 	Legislature 	in 	enacting
a 	new 	law 	which 	generously 	expands 	the
rights 	of 	employees, 	to 	strip employees 	in
units 	with 	no 	exclusive 	representative 	of
any 	voice 	in 	a 	matter 	as 	basic 	as 	wages.
Two 	statutory provisions 	strongly militate
against 	such 	an 	interpretation. 	First,
there 	is 	no 	requirement 	under 	the 	SEERA 	that
employees 	select 	an 	exclusive
representative. 	(Sec. 	3515.) 	Second,
nonexclusive 	representatives 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	the 	state 	until 	an
exclusive 	representative 	is 	recognized.
(Sec. 	3515.5, 	supra.) 	The 	Board 	finds 	that
the 	thrust 	of 	these 	two 	sections 	is 	to
protect 	the 	right 	of 	employees 	to 	be
represented 	by a 	nonexclusive 	representative
when 	an 	exclusive 	representative 	has 	not
been 	chosen.
29

Professional 	Engineers, 	supra. 	Santa Clara Federation of
Teachers 	v. 	Santa Clara Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104, 	did 	not 	affirm 	th~t 	the 	failure 	to meet 	and
confer 	does 	not 	constitute 	an 	unfair 	practice 	under 	EERA, 	as
argued 	by 	respondent, 	but 	instead 	found 	that 	the 	lack 	of
evidence 	that 	the 	Union 	requested 	to meet 	and 	consult,
"obviates 	consideration 	of 	the 	question 	••.• " 	Id. 	Thus,
even 	before 	Professional 	Engineers, 	the 	Board 	considered 	the
duty 	to 	meet 	and 	consult 	with 	a 	nonexclusive 	representative 	an
open 	question.
This 	is 	a 	case 	of 	first 	impression 	under 	HEERA, 	since 	there
is 	no 	precedent 	on 	the 	duty 	to meet 	and 	confer 	under 	this Act.
It 	may 	be 	argued 	that 	Professional 	Engineers 	does 	not 	apply
here 	since 	section 	3515.5 	of 	SEERA which 	the 	Board 	found 	to
grant 	this 	right 	has 	no 	parallel 	in HEERA. 	Section 	3543.l(a)
of 	EERA 	(interpreted 	in San Dieguito) 	and 	3515.5 	of SEERA
(interpreted 	in 	Professional 	Engineers) 	both 	described 	the
right 	of 	employee 	organizations 	to 	represent members, 	and 	HEERA
has 	no 	such 	section. 	Charging 	party counters 	that 	the 	duty 	to
meet 	and 	confer 	is 	derived 	from 	section 	3565 of 	HEERA, 	which 	is
parallel 	to 	section 	3515 	of 	SEERA and 	section 	3543 	of 	EERA, 	and
all 	of 	these 	sections 	concern 	the 	right 	of 	employees 	to 	be
represented 	in 	their 	employment 	relations. 	This, 	the
University 	argues, 	further 	indicates 	a 	legislative 	intent 	not
to 	grant 	such 	a 	right 	to 	higher 	education 	employee
organizations.
30

But, 	the 	argument 	that 	the 	Legislature 	intentionally
omitted 	such 	a 	right 	does 	not 	stand 	up when HEERA 	is 	examined
as 	a 	whole 	and 	in 	the 	context 	of 	preMious 	legislation. 	This
Act 	was 	the 	most 	recent 	in 	a 	series 	of 	legislative 	enactments
granting 	greater 	collective 	bargaining 	rights 	to 	an 	expanding
number 	of 	public 	employees 	in California, 	all 	administered 	by a
single 	agency. 	As 	stated 	in 	the 	statute 	itself:
All 	other 	employees 	of 	the 	public 	school'
systems 	in 	the 	state 	have 	been 	granted 	the
opportunity 	for 	collective 	bargaining
through 	the 	adoption 	of 	Chapter 	10.3
(commencing 	with 	section 	3512) 	and
Chapter 	10.7 	(commencing 	with 	section 	3540)
of 	this 	division, 	and 	it 	would 	be
advantageous 	and 	desirable 	to 	expand 	the
jurisdiction of 	the 	board 	created 	thereunder
to 	cover 	the 	employees 	of 	the 	University 	of
California, 	Hastings 	College 	of 	Law, 	and 	the
California 	State 	Universities 	and 	Colleges.
These 	institutions 	of 	higher 	education 	have
their 	own 	organizational 	characteristics.
(Government Code 	section 	3560(b)).
There 	is 	nothing 	uniqu~ 	about 	these 	institutions, 	as
opposed 	to 	state 	employers 	(under 	SEERA) 	and 	public 	school
employers 	(under 	EERA) 	which 	would 	compel 	a 	difference 	in 	the
right 	of 	employees 	to 	be 	represented 	by 	an 	employee
organization 	prior 	to 	the 	selection 	of 	an 	exclusive
representative.
The 	decision 	in Professional 	Engineers 	was 	based 	on 	the
right 	of 	employees, 	"to 	be 	represented 	by a 	nonexclusive
representative 	when 	an 	exclusive 	representative 	has 	not 	been
selected." 	Id. 	Section 	3565 	of 	HEERA 	assures 	employees 	the
31

right 	to 	participate 	in 	an 	employee 	organization 	for 	the
purpose 	of 	representation 	and 	meeting 	and 	conferring. 	Put
simply, 	if 	the 	employer 	refuses 	to 	qeal 	with 	the 	employee
organization, 	these 	rights 	of 	the 	employees 	are 	meaningless.
Employees 	now 	covered 	by SEERA 	and HEERA were 	both
previously 	covered 	by 	the 	George Brown Act.14 	Exactly 	the
same 	rights 	guaranteed 	by 	this 	previous 	legislation 	are 	at
stake 	as 	in 	Professional 	Engineers. 	There 	is 	no 	indication
that 	the 	Legislature 	intended 	that 	employees 	under 	HEERA
without 	an 	exclusive 	representative 	were 	to 	lose 	any 	rights 	of
representation 	while 	those 	under 	SEERA were 	to 	retain 	them.
Indeed, 	as 	previously 	noted, 	section 3560(b) 	makes 	it 	clear
that 	the 	intent 	of 	the 	Legislature 	was 	to 	extend 	to 	higher
education 	employees 	the 	same 	rights 	previously 	granted 	to
public 	school 	employees 	and 	state 	employees, 	with 	differences
only 	where 	compelled 	by 	the 	unique 	nature 	of 	the 	institutions
involved. 	It 	is 	therefore 	found 	that 	the 	respondent 	had 	a 	duty
to 	meet 	and 	consult, 	as 	defined 	in 	Professional 	Engineers, 	with
the 	charging 	party.
The 	Extent 	of 	the 	Duty
Although 	a 	higher 	education 	employer 	has 	a 	duty 	under 	the
Act 	to meet 	and 	consult 	with 	a 	nonexclusive 	representative
14see 	footnote 	11, 	supra.
32

prior 	to 	the 	selection of 	an 	exclusive 	representative, 	this 	is
not 	the 	same 	as 	the 	duty 	to meet 	and 	confer, 	or 	to 	bargain,
with 	an 	exclusive 	representative. 	~s 	stated 	in 	Professional
Engineers, 	supra:
We 	stress, 	however, 	that 	the 	obligation
imposed 	on 	the 	state 	employer 	to meet 	with 	a
nonexclusive 	representative 	is 	not 	the 	same
as 	that 	imposed 	with 	regard 	to 	an 	exclusive
representative. 	Thus, 	whereas 	the 	Governor
and 	representatives 	of 	recognized 	or
certified 	employee 	organizations 	"have 	the
mutual 	obligation 	personally 	to meet 	and
confer 	[in 	good 	faith] 	promptly 	upon 	request
by 	either 	party 	and 	continue 	for 	a
reasonable 	period 	of 	time 	in 	order 	to
exchange 	freely 	information, 	opinions 	and
proposals, 	and 	to 	endeavor 	to 	reach
agreement 	on matters 	within 	the 	scope 	of
representation 	••• " 	(section 	3517), 	the
Board 	finds 	that 	the 	obligation 	imposed 	by
the 	statute 	on 	the 	state 	employer 	with
respect 	to 	nonexclusive 	representatives 	is
to 	provide 	a 	reasonable 	opportunity 	to meet
and 	discuss 	wages 	with 	them 	prior 	to 	the
time 	the 	employer 	reaches 	or 	takes 	action 	on
a 	policy 	decision.
Thus, 	while 	the 	duty 	to 	meet 	and 	confer 	with 	an 	exclusive
representative 	encompasses 	a 	good 	faith 	effort 	to 	reach 	an
agreement, 	the 	duty 	to 	meet 	and 	consult 	with 	a 	nonexclusive
representative 	only 	requires 	the 	opportunity 	for 	discussion
prior 	to 	the 	decision 	or 	action.
Even 	though 	this 	duty 	is 	less 	than 	that 	owed 	an 	exclusive
representative, 	it 	still 	includes 	some 	requirement 	of 	good
faith. 	Since 	the 	duty 	to meet 	and 	consult 	with 	a 	nonexclusive
representative 	derives 	in 	part 	from 	the 	legislative 	intent
33

to 	preserve 	existing 	rights 	and 	extend 	them 	by 	enactment 	of
HEERA, 	this 	duty must 	at 	least 	be 	as 	extensive 	as 	it was 	under
section 	3530 	of 	the 	George 	Brown Ac~ 	(see 	footnote 	11). 	Court
decisions 	interpreting 	this 	section 	have 	found 	that 	it 	includes
the 	element 	of 	good 	faith. 	State Association 	of 	Real 	Property
Agents 	v. 	State 	Personnel 	Board 	(1978) 	83 	Cal.App.3d 	206, 	211
[147 	Cal.Rptr. 	786]; 	Lipow 	v. 	Regents 	of 	the 	University of
California 	(1975) 	54 	Cal.App.3d 	215, 	224 	[126 	Cal.Rptr. 	515].
Another 	consideration 	in 	determining 	the 	extent 	of 	this
duty 	is 	the 	effect 	on 	other 	nonexclusive 	representatives,
especially, 	as 	here, 	where 	both 	organizations 	have 	petitioned
to 	represent 	the 	employees. 	By 	meeting 	with 	one 	organization
and 	not 	another, 	or 	by 	being 	more 	receptive 	to 	one 	organization
an 	employer 	may 	run 	the 	risk 	of 	being 	accused 	of 	favoritism
towards 	one 	organization 	in 	violation of 	section 	3571(d) .15
15Section 	3571(d) 	reads, 	in 	relevant 	part:
[It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:] 	Dominate 	or
interfere 	with 	the 	formation 	or
administration 	of 	any 	employee 	organization,
or 	contribute 	financial 	or 	other 	support 	to
it, 	or 	in 	any 	way 	encourage 	employees 	to
join 	any 	organization 	in 	preference 	to
another; 	• 	• 	• 	(Emphasis 	added.)
If 	an 	employer 	was 	required 	to 	do 	anything 	more 	than 	"to 	consider
as 	fully 	as 	[it] 	deem[s] 	reasonable," 	Gov. 	Code 	sec. 	3530, 	the
employee 	organizations' 	requests, 	it 	would 	be 	in 	a 	"Catch 	22"
situation 	if 	it 	had 	to 	bargain 	with 	two 	organizations 	which 	made
conflicting 	requests.
34

For 	this 	reason 	the 	duty 	to meet 	and 	consult 	should 	not 	be 	any
greater 	than 	that 	imposed 	by 	the 	George 	Brown Act.
The 	University Met 	its 	Duty 	to Meet .and Consult
The 	University met 	with 	the 	Union 	and 	discussed 	the 	issue
of 	time 	clocks 	prior 	to 	their 	implementation. 	On April 	26,
1979, 	a meeting 	took 	place 	which 	both 	sides 	categorized 	as 	a
"meet 	and 	confer 	session." 	This meeting 	was 	delayed 	until
after 	the 	clocks 	were 	installed, 	which 	might 	be 	considered 	a
"unilateral 	action" 	in 	violation 	of 	the 	Act. 	However, 	the Act
was 	not 	in 	effect 	at 	that 	time 	so 	this 	could 	not 	constitute 	an
independent 	violation, 	nor 	could 	it 	be 	the 	basis 	for 	a
violation 	occurring 	after 	the 	effective 	date 	of 	the Act. 	(See
footnote 	6 and 	accompanying 	text, 	supra.) 	As 	a 	partial
response 	to 	a 	request 	made 	by 	the 	Union 	at 	the 	April 	26
meeting, 	a 	series 	of 	meetings 	with 	all 	plant 	operations
employees 	was 	held 	on May _11, 	1979. 	Finally on July 	6 	another
meeting 	was 	held 	between 	the 	Union 	and 	the 	University 	at 	which
the 	time 	clock 	issue 	was 	discussed. 	This 	was 	the 	only meeting
held 	after 	the 	Act 	went 	into effect.
The Union 	bases 	its 	charge 	on 	the 	refusal 	of 	the 	University
to 	grant 	its 	request 	to meet 	and 	confer made 	on September 	24,
and 	other 	requests 	made 	subsequent 	to 	the 	filing 	of 	this
charge. 	But 	since 	the 	University 	did, 	in 	fact, 	meet 	and
discuss 	the 	issue 	with 	the Union, 	and 	with 	employees, 	prior 	to
taking 	final 	action, 	and 	there 	is 	no 	evidence 	of 	bad 	faith, 	it
35

is 	found 	that 	it met 	its 	duty 	to meet 	and 	consult.
Unlike 	the 	situation 	where 	there 	is 	an 	exclusive
representative 	and 	thus 	a 	"mutual 	o~ligation 	••• 	to 	endeavor
to 	reach 	agreement 	.," 	Government Code 	section 	3562(d), 	the
University 	here 	is 	not 	obligated 	to 	continue 	to meet 	with 	the
Union 	once 	it" ••• 	provide[s] 	a 	reasonable 	opportunity 	to
meet 	and 	discuss 	••• 	prior 	to 	the 	time 	the 	employer 	reaches
or 	takes 	action 	on 	a 	policy 	decision." 	Professional 	Engineers,
supra.
The 	subsequent 	refusal 	of 	the 	University 	to meet 	with 	the
Union 	on 	this 	issue 	was 	part 	of 	the 	systemwide 	policy 	that
there 	was 	no 	duty 	to meet 	and 	confer 	with 	a 	nonexclusive
representative 	under 	the 	Act. 	Even 	though 	this 	interpretation
was 	partially 	incorrect, 	and 	ignorance 	of 	the 	law 	is 	no 	excuse,
it may 	be 	a 	factor 	in 	finding 	that 	the 	University was 	acting 	in
good 	faith.16 	There 	was 	no 	other 	evidence 	of 	bad 	faith 	on
the 	part 	of 	the 	University 	in 	refusing 	to 	continue 	discussion
of 	the 	issue. 	No 	new 	issue 	was 	raised 	by 	the 	Union 	in 	its
September 	24 	request 	which 	might 	activate 	a 	new duty 	by 	the
16In 	this 	regard, 	the 	Board 	stated:
In 	addition, 	at 	the 	time 	the 	series 	of
events 	occurred 	in 	this case, 	San 	Dieguito,
supra, 	was 	the 	only Board 	precedent
available 	to 	serve 	as 	a 	guide 	to 	the 	parties
that 	interpreted 	the 	breadth 	of 	a
nonexclusive 	employee 	representative's 	right
to 	represent 	its members 	in 	their 	employment
36

University 	to meet 	and 	consult.
Dismissal 	of 	Grievances
The 	charging 	party 	has 	alleged 	~hat 	the 	University 	refused
to 	discuss 	the merits 	of 	grievances 	in 	violation 	of
section 	357l(a) 	and 	(b) 	of 	the 	Act. 	The 	grievances 	referred 	to
are 	the 	April 	26, 	1979 	grievance 	dismissed 	by Vice
President 	Kennelly 	on May 	8, 	and 	the 	January 	4, 	1980 	grievance
dismissed 	by Vice 	President Kennelly 	on January 	16. 	Both
grievances 	concern 	the 	University's 	failure 	to meet 	and 	confer.
In 	order 	to 	find 	a 	violation 	of 	section 	3571(a) 	or 	3571(b),
the 	employer's 	action must 	either 	have 	interfered 	with 	some
right 	granted 	to 	the 	employees 	(for 	a 	3571(a) 	charge) 	or 	the
employee 	organization 	(for 	a 	3571(b) 	charge), 	or 	have 	been
motivated 	by 	unlawful 	intent. 	Oceanside-Carlsbad, 	supr~. 	The
charging 	party 	argues 	that 	section 	3567 grants 	employees 	and
employee 	organizations 	the 	right 	to 	have 	grievances 	processed.
relations. 	Even 	though 	that 	case 	was 	decided 	under
the 	EERA 	it 	was 	based, 	in 	part, 	on 	an 	interpretation
of 	statutory 	language 	basically paralleling 	that
contained 	in 	the 	SEERA with 	which 	we 	are 	here
concerned. 	While 	we 	have 	chosen 	in 	this 	case, 	decided
under 	SEERA, 	not 	to 	follow 	the 	San Dieguito 	holding,
the 	state 	employer 	was 	not 	unreasonable 	in 	relying on
the 	assumption 	that 	this 	board 	would 	follow 	·
San 	Dieguito.
While 	reliance 	on EERA precedent 	alone 	may 	not 	be 	a
sufficient 	defense, 	we 	find 	that 	this 	factor 	coupled
with 	the 	specific 	circumstances 	in 	this 	case 	warrant 	a
finding 	that 	the 	actions 	of 	the 	state 	employer 	were
not 	unreasonable 	and 	did 	not 	violate 	its 	obligations
under 	the 	SEERA.
37

That 	section 	reads:
Any 	employee 	or 	group of 	employees 	may 	at
any 	time, 	either 	individually or 	through 	a
representative 	of 	their 	own 	choosing,
present 	grievances 	to 	the 	employer 	and 	have
such 	grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative1 	provided, 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
section 	3589, 	and 	the 	adjustment 	is 	not
inconsistent 	with 	the 	terms 	of 	a 	written
memorandum 	then 	in 	effect. 	The 	employer
shall 	not 	agree 	to 	resolution of 	the
grievance 	until 	the 	exclusive 	representative
has 	received 	a 	copy of 	the 	grievance 	and 	the
proposed 	resolution, 	and 	has 	been 	given 	the
opportunity 	to 	file 	a 	response.
This 	section 	is 	nearly 	identical 	to 	the 	second 	paragraph 	of
section 	3543 	of 	the 	Educational 	Employment 	Relations Act,17
and 	also 	section 	9(a) 	of 	the 	Labor 	Management Relations
17california Government Code 	section 	3543, 	second
paragraph, 	reads:
Any 	employee 	may 	at 	any 	time 	present
grievances 	to 	his employer, 	and 	have 	such
grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a 	written 	agreement 	then 	in
effect1 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
38

18	Act. 	In 	Baldwin Park Unified 	School 	District 	(4/4/79) 	PERB
Decision No. 	92, 	the 	Board 	affirmed 	(in 	relevant 	part) 	a
hearing 	officer's 	dismissal, 	with 	le~ve 	to 	amend, 	of 	a 	charge,
finding 	that 	section 	3543 	grants 	employees 	only 	the 	right 	to
present 	grievances, 	not 	the 	right 	to 	have 	their 	grievances
processed 	or 	considered. 	The 	hearing 	officer 	had 	followed 	the
interpretation 	of 	the 	parallel 	section 	in 	the 	Labor-Management
Relations Act 	by 	federal 	courts, 	where 	it 	is 	settled 	that 	its
purpose 	is:
To 	permit 	employees 	to 	present 	grievances 	and
to 	authorize 	the 	employer 	to 	entertain 	them
without 	opening 	itself 	to 	liability 	for
dealing 	directly 	with 	employees 	in 	derogation
of 	the 	duty 	to 	bargain only with 	the
exclusive 	bargaining 	representative 	•.••
1829 	u.s.c. 	151 	et 	seq. 	Section 9(a) 	reads, 	in 	relevant
part:
Any 	individual 	employee 	or 	a 	group of
employees 	shall 	have 	the 	right 	at 	any 	time
to 	present 	grievances 	to 	their 	employer 	and
to 	have 	such 	grievances 	adjusted, 	without
the 	intervention 	of 	the 	bargaining
representative, 	as 	long 	as 	the 	adjustment 	is
not 	inconsistent 	with 	the 	terms 	of 	a
collective-bargaining 	contract 	or 	agreement
then 	in 	effect: 	Provided 	further, 	that 	the
bargaining 	representative 	has 	been 	given
opportunity 	to 	be 	present 	at 	such 	adjustment.
39

Emporium Capwell 	Co. 	v. 	WACO 	(1975) 	420 	U.S. 	50, 	at 	p. 	61, 	fn.
12 	[88 	LRRM 	2660, 	2665]. 	See 	also Black-Clawson Co. 	v.
Machinists 	(2d Cir. 	1962) 	313 	F.2d 	1J9 	[52 	LRRM 	2038]; 	Republic
Steel 	v. 	Maddox 	(1965) 	379 	U.S. 	650, 	[58 	LRRM 	2193].
The 	respondent 	here 	did 	not 	attempt 	to 	deny 	employees 	or
the 	Union 	their 	right 	to 	present grievances. 	The 	first
grievance 	was 	dismissed 	because 	it 	was 	allegedly 	not 	within 	the
scope 	of 	the 	grievance 	procedure. 	The 	second 	grievance 	was
dismissed 	for 	the 	same 	reason, 	and 	additionally 	because 	this
unfair 	labor 	practice 	charge 	was 	pending, 	covering 	the
identical 	issue 	raised 	in 	the 	grievance. 	Whether 	the 	decision
that 	these 	grievances 	are 	within 	the 	scope 	of 	the 	grievance
procedure 	is 	correct 	is 	not 	a matter 	the 	Board may consider.19
The 	charging 	party 	has 	not 	presented 	sufficient 	evidence 	to
prove 	that 	the 	denial 	of 	these 	grievances 	was 	in 	reprisal 	for
protected 	activity. 	There_ is 	nothing 	in 	the 	record 	to 	suggest
that 	the 	dismissals 	were 	other 	than 	a 	good 	faith 	application of
University 	policy.
Since 	there 	is 	no 	right 	to 	have 	grievances 	processed 	in 	the
Act, 	there 	is 	not 	even 	"slight 	harm" 	to 	employee 	rights 	under
the 	Oceanside-Carlsbad 	test. 	Nor 	is 	there 	proof 	of 	unlawful
intent 	which 	would 	independently 	constitute 	an 	unfair
19section 	3563.2(b) 	precludes 	the 	Board 	from 	enforcing
any 	contract 	between 	the 	parties.
40

practice. 	Therefore 	it 	is 	found 	that 	the 	respondent 	has 	not
violated 	section 	3571(a) 	or 	(b) 	of 	the 	Act 	by 	its 	dismissal 	of
the 	two mentioned 	grievances.
REMEDY
The 	remedy 	for 	a 	violation 	of 	section 	357l(a) 	should 	be
"designed 	to 	restore, 	so 	far 	as 	possible, 	the 	status 	quo 	which
would 	have 	obtained 	but 	for 	the 	wrongful 	act." 	Santa Clara
Unified School 	District 	(9/26/79) 	PERB 	Decision No. 	104,
quoting 	from NLRB v. 	Rutter-Rex Mfg. 	Co., 	Inc. 	(1969) 	396 	U.S.
258 	[24 	L.Ed.2d 	405, 	72 	LRRM 	2881] 	reh. 	den. 	397 	U.S. 	929 	[25
L.Ed2d 	109]. 	Restoration 	of 	the 	status 	quo 	ante 	in 	the 	present
case 	would 	require 	a 	return 	to 	the 	previous 	timekeeping
system. 	However, 	since 	the 	implementation of 	time 	clocks 	and
stricter 	timekeeping 	procedures 	are 	legitimate 	changes 	in
operations 	absent 	the 	unlawful 	motivation 	found 	here, 	it 	would
be 	unfair 	to 	"freeze" 	the ?niversity's 	options 	indefinitely.
On 	the 	other 	hand, 	without 	a 	return 	to 	the 	status 	quo 	ante, 	a
bare 	order 	to 	cease 	and 	desist 	would 	do 	little 	to 	remedy 	the
possible 	chilling 	effect 	on 	the 	exercise 	of 	employee 	rights
resulting 	from 	the 	University's 	action.
The 	charging 	party 	has 	suggested 	that 	the 	previous 	system
be 	restored, 	and 	that 	the 	University 	not 	require 	employees 	to
use 	time 	clocks 	for 	approximately 	the 	same 	period 	that 	they
~ 	required 	to 	use 	time 	clocks. 	While 	agreeing 	with 	the
concept 	of 	returning 	to 	the 	status 	quo 	ante 	with 	a 	"hiatus"
41

period 	during 	which 	the 	University may 	not 	change 	its
timekeeping 	operations, 	it 	is 	found 	that 	a more 	appropriate
cut-off 	point 	for 	such 	a 	hiatus 	period 	is 	the 	date 	the 	results
of 	the 	representation 	election 	for 	these 	employees 	is
certified, 	or 	ninety 	calendar 	days, 	whichever 	comes 	first.
This 	would 	avoid 	any 	effect 	such 	a 	change 	of 	operations 	could
have 	on 	the 	election. 	Once 	the 	results 	of 	the 	election 	are
certified, 	the 	status 	of 	the 	contending 	organizations 	will 	be
clarified. 	If 	an 	exclusive 	representative 	is 	certified,
timekeeping 	policy 	could 	immediately 	be 	a 	subject 	of meeting
and 	conferring. 20 	If 	the 	employees 	choose 	no 	representation,
or 	if 	ninety 	days 	passes 	with 	no 	election, 	the 	University 	would
be 	free 	to 	change 	its 	timekeeping 	policy, 	but 	only 	after
meeting 	and 	discussing 	the 	matter 	with 	the 	nonexclusive
representatives 	(provided 	any 	action 	taken 	in 	this 	regard 	is
not 	in 	retaliation 	for 	protected 	activity). 	See 	Professional
Engineers, 	supra. 	The 	return 	to 	the 	status 	quo 	ante 	for 	a
20This 	decision 	assumes, 	without 	deciding, 	that 	the
subject 	of 	timekeeping 	policy 	and 	procedure 	is 	within 	the 	scope
of 	the 	obligation 	to meet 	and 	confer 	or 	consult, 	an 	assumption
never 	challenged 	by 	the 	respondent 	in 	this 	case. 	The 	subject
has 	been 	found 	negotiable 	under 	the 	NLRA, 	which 	has 	a 	broad
scope 	provision. 	Nathan 	Littauer 	Hospital Association 	(1977)
229 	NLRB 	1122 	[95 	LRRM 	1296). 	See 	also Murphy Diesel Co.
(1970) 	184 	NLRB 	757 	[76 	LRRM 	1469), 	enf'd 	(7th Cir. 	1971) 	454
F.2d 	303. · But 	see 	Rust 	Craft 	Broadcasting, 	Inc. 	(1976) 	225
NLRB 	327 	[92 	LRRM 	1576].
42

substantially 	shorter 	period 	than 	requested 	by 	the 	charging
party 	will 	adequately 	demonstrate 	to 	all 	parties 	and 	all
affected 	employees 	that 	the 	statutorily 	prescribed 	procedures
must 	be 	followed 	while 	not 	unduly 	impeding 	change.
The University 	will 	also 	be 	ordered 	to 	cease 	and 	desist
from 	retaliation 	against 	employers 	in 	plant 	operations 	for
protected 	activities 	of 	such 	employees, 	and 	to 	post 	copies 	of
the 	attached 	notice 	at 	locations 	on 	campus 	where 	notices 	to
employees 	are 	customarily 	placed. 	Posting 	will 	also 	provide
affected 	employees 	with 	notice 	that 	the University has 	acted 	in
an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	such unlawful 	activity. 	It 	effectuates 	the 	purposes 	of
EERA 	that 	affected 	employees 	be 	informed 	of 	the 	resolution 	of
the 	controversy. 	See CSEA Chapter 	658 	v. 	Placerville Union
High 	School District 	(9/18/78) 	PERB 	Decision No. 	69. 	A posting
requirement 	has 	been 	upheld 	in 	a 	California case 	involving 	the
Agricultural 	Labor 	Relations Act, 	Pandol 	and 	Sons 	v. 	ALRB
(1979) 	98 	Cal.App.3d 	580, 	587. 	Posting 	orders 	of 	the 	NLRB 	also
have 	been 	upheld 	by 	the 	United 	States 	Supreme Court, 	NLRB 	v.
Express 	Publishing Co. 	(1941) 	312 	U.S. 	426 	[8 	LRRM 	415]1
Pennsylvania Greyhound 	Lines, 	Inc. 	v. 	NLRB 	(1938) 	303 	U.S. 	261
(2 	LRRM 600].
It 	was 	also 	brought 	out 	at 	the 	hearing 	that 	at 	least 	one
employee, 	Chris Brewster, 	had 	to 	pay 	a 	parking 	ticket 	because
43

of 	the 	requirement 	that 	employees 	punch 	in 	at 	a 	central
location 	at 	a 	time 	when 	their 	parking 	permits 	were 	not 	valid.
The University 	should 	either 	void 	o~ reimburse 	the 	cost 	of 	this
and 	any 	other 	parking 	ticket 	received 	by 	an 	employee 	as 	a
direct 	result 	of 	being 	required 	to 	punch 	in 	at 	a 	central
location.
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3563.3, 	it 	is 	hereby ORDERED 	that 	the 	California
State University, 	Hayward 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering,
restraining 	or 	coercing 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the HEERA, 	by 	requiring 	employees 	to 	use
time 	clocks 	and 	observe 	n~w 	timekeeping 	policies.
2. 	Enforcing 	such 	timekeeping 	policies 	or 	disciplining
employees 	for 	failing 	to 	observe 	such 	policies 	in 	retaliation
for 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF THE 	HEERA:
1. 	Return 	to 	the 	previous 	timekeeping 	policy 	and 	procedure
which 	existed 	prior 	to July 16, 	1979 	in 	the 	plant 	operations
department. 	The 	University 	shall 	not 	again 	change 	such 	policy
until 	the 	results 	of 	the 	pending 	election 	to 	determine
44

representation 	for 	the 	plant 	operations 	employees 	is 	certified,
or 	ninety 	calendar 	days 	from 	the 	date 	this 	proposed 	decision
becomes 	final, 	whichever 	is 	sooner •. At 	that 	time 	the
University may 	implement 	such 	changes 	in 	timekeeping 	policy 	and
procedure 	that 	it 	deems 	proper, 	provided 	such 	changes 	are 	not
designed 	to 	retaliate 	against, 	or 	interfere 	with, 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA, 	and
provided 	that 	the 	University meets 	its 	duty 	to meet 	and 	confer
with 	any 	exclusive 	representative 	or 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	prior 	to 	adopting 	or 	implementing
such 	policy.
2. 	Either 	void 	or 	reimburse 	the 	costs 	of 	any 	parking
ticket 	received 	by 	an 	employee 	as 	a 	direct 	result 	of 	complying
with 	the 	requirement 	of 	punching 	in 	at 	a 	central 	location
between July 	16, 	1979, 	and 	the 	date 	this 	proposed 	decision
becomes 	final.
3. 	Within 	five 	days 	of 	the 	date 	this 	proposed 	decision
becomes 	final, 	post, 	at 	all 	work 	locations 	on 	campus 	where
notices 	to 	employees 	customarily 	are 	placed 	copies 	of 	the
notice 	attached 	as 	an 	appendix 	hereto. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	30 	workdays. 	Reasonable 	steps 	shall
be 	taken 	to 	ensure 	that 	said 	notices 	are 	not 	altered, 	defaced,
or 	covered 	by 	other 	material.
4. 	Immediately 	upon 	completion 	of 	the 	posting 	period,
notify 	the 	San Francisco Regional 	Director 	of 	the
45

Public Employment 	Relations Board, 	in 	writing, 	of 	the 	action
taken 	to 	comply with 	this 	order.
For 	the 	reason 	discussed 	in 	the 	toregoing 	opinion, 	all
other 	allegations 	included 	in 	unfair 	practice 	charge SF-CE-3-H
are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed Decision 	and 	order 	shall
become 	final 	on 	September 	11, 	1980 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32300. 	Such 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	Executive 	Assistant 	to 	the 	Board 	at 	the 	headquarters 	office
of 	the 	Public Employment 	Relations 	Board 	in Sacramento 	before
the 	close 	of 	business 	(5:00 	p.m.) 	on September 	11, 	1980 	in
order 	to 	be 	timely 	filed. 	See 	California Administrative Code,
title 	8, 	part 	III, 	section 32135. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrent 	with 	its 	filing
upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be
filed 	with 	the 	Board 	itself. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	sections 	32300 	and 	32305, 	as 	amended.
Dated: 	August 	22, 	1980
46
ember
ember

APPENDIX NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	Stat~ 	of 	California
After 	a 	hearing 	in Unfair 	Practice Case No. 	SF-CE-3-H,
College 	and University 	Employees/Service 	Employees
International Union 	(CAUSE-SEIU), 	AFL/CIO v. 	California State
University, 	Hayward, 	in which 	both 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that California State
University, 	Hayward 	violated 	the 	Higher 	Education Employer-
Employee 	Relations 	Act, 	Government Code 	section 	3571(a). 	As 	a
result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this
notice. 	We 	will 	abide 	by 	the 	following:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Retaliating 	against 	employees 	or 	otherwise 	interfering,
restraining 	or 	coercing 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the HEERA, 	by 	requiring 	employees 	to 	use
time 	clocks 	and 	observe 	new 	timekeeping 	policies.
2. 	Enforcing 	such 	timekeeping 	policies 	or 	disciplining
employees 	for 	failing 	to 	observe 	such 	policies 	in 	retaliation
for 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH 	IS 	NECESSARY TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HIGHER EDUCATION EMPLOYER-
EMPLOYEE 	RELATIONS 	ACT:
1. 	Return 	to 	the 	previous 	timekeeping 	policy 	and 	procedure
which 	existed 	prior 	to July 16, 	1979 	in 	the 	plant 	operations
47

department. 	The 	University 	shall 	not 	again 	change 	such 	policy
until 	the 	results 	of 	the 	pending 	election 	to 	determine
representation 	for 	the 	plant 	operatiDns 	employees 	is 	certified,
or 	ninety calendar 	days 	from 	the 	date 	this 	proposed 	decision
becomes 	final, 	whichever 	is 	sooner. 	At 	that 	time 	the
University may 	implement 	such 	changes 	in 	timekeeping 	policy 	and
procedure 	that 	it 	deems 	proper, 	provided 	such 	changes 	are 	not
designed 	to 	retaliate 	against, 	or 	interfere 	with, 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the HEERA, 	and
provided 	that 	the 	University meets 	its 	duty 	to meet 	and 	confer
with 	any 	exclusive 	representative 	or 	to meet 	and 	consult 	with 	a
nonexclusive 	representative 	prior 	to 	adopting 	or 	implementing
such 	policy.
2. 	Either 	void 	or 	reimburse 	the 	costs 	of 	any 	parking
ticket 	received 	by 	an 	employee 	as 	a 	direct 	result 	of 	complying
with 	the 	requirement 	of 	punching 	in 	at 	a 	central 	location
between July 	16, 	1979, 	and 	the 	date 	this 	proposed 	decision
becomes 	final.
Dated: 	California State University,
Hayward
By-------------
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED FOR AT 	LEAST
30 WORKDAYS 	FROM THE 	DATE 	OF 	THIS 	POSTING AND MUST NOT BE
DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.
48

California State University, Hayward (PERB 0231H)

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