Regents of the University of California (California State Employees Association) (PERB 0470H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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___________________ )
Case 	No. 	SF-CE-56-H
PERB 	Decision No. 	470-H
December 	28, 	1984
Appearances: 	Michael 	R. 	Bogan 	for 	California 	State 	Employees'
Association; 	Edward 	M. 	Opton, 	Jr., 	Attorney, 	for 	the 	Regents 	of
the 	University 	of 	California.
Before 	Hesse, 	Chairperson; 	Tovar 	and 	Morgenstern, 	Members.
DECISION AND ORDER
TOVAR, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on 	exceptions 	filed 	by 	both 	the
California 	State 	Employees' 	Association 	(CSEA) 	and 	the 	Regents
of 	the 	University 	of 	California 	(University) 	to 	the 	attached
proposed 	decision 	of 	the 	administrative 	law 	judge. 	CSEA
excepts 	to 	the 	dismissal 	of 	its 	charge 	alleging 	that 	the
University 	violated 	sections 	357l(a), 	(b) 	and 	(d) 	of 	the 	Higher
Education Employer-Employee 	Relations Act1 by
1The 	Higher 	Education 	Employer-Employee 	Relations Act 	is
codified 	at 	Government 	Code 	section 	3560 	et 	seq.

unilaterally 	changing 	working 	conditions 	in 	the 	General 	Library
and 	by 	interfering 	with 	and 	discriminating 	against 	library
employees 	because 	of 	their 	exercise 	of 	protected 	rights.
The 	Board 	has 	carefully 	reviewed 	the 	entire 	record 	in 	this
case 	in 	light 	of 	the 	exceptions 	and 	the 	response 	thereto. 	we
adopt 	the ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law, 	and
hereby ORDER 	the 	unfair 	practice 	charge 	in Case 	No. 	SF-CE-56-H
DISMISSED.
Chairperson 	Hesse 	and 	Member 	Morgenstern 	joined 	in 	this
Decision.
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STATE 	OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Respondent.
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__________________ )
Unfair 	Practice
Case 	No. 	SF-CE-56-H
PROPOSED 	DECISION
(8/10/83)
Appearances: 	Kevin 	Mccurdy, 	Elaine 	Ercolini 	and 	Michael 	Bogan,
Representatives, 	California 	State Employees' 	Association;
Edward 	Opton, 	Jr., 	Attorney, 	for 	Regents 	of 	the 	University of
California.
Before: 	Fred 	D'Orazio, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
On 	June 	1, 	1981, 	the 	California 	State Employees 	Association
(hereafter 	CSEA or 	Charging 	Party) 	filed 	this 	unfair 	practice
charge 	against 	the 	Regents 	of 	the 	University of 	California
(hereafter 	University 	or 	Respondent). 	The 	charge 	alleged 	that
the 	University 	violated 	sections 	357l(a) 	and 	(d) 	of 	the 	Higher
Education Employer-Employee 	Relations 	Act 	(hereafter 	HEERA or
Act)l 	by 	unilaterally 	changing 	several 	working 	conditions 	in
lThe 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	references 	hereafter 	will 	be 	to 	the 	Government
Code 	unless 	otherwise 	indicated.

the 	Moffitt 	Undergraduate 	Library. 	The 	charge 	also 	alleged
that 	the 	changes 	interfered 	with 	the 	exercise 	of 	protected
rights 	and 	constituted 	reprisals 	against 	employees 	for 	filing
an 	earlier 	unfair 	practice 	charge 	as 	well 	as 	for 	engaging 	in
other 	forms 	of 	protected 	activity. 	2 Respondent 	filed 	its
answer 	on 	June 	23, 	1981, 	admitting 	certain 	facts, 	generally
denying 	the 	charge, 	and 	offering 	affirmative 	defenses, 	all 	of
which 	will 	be 	dealt 	with 	below.
On 	July 	13, 	1981, 	CSEA 	filed 	an 	amendment, 	essentially
restating 	the 	general 	allegations 	contained 	in 	the 	original
charge 	and 	offering 	specific 	incidents 	to 	support 	its
allegations. 	The 	first 	amendment 	also 	added 	section 	357l(b) 	as
an 	alleged 	violation. 	The 	University 	answered 	the 	first
amendment 	on 	July 	30, 	1981. 	It 	generally 	denied 	the
allegations 	and 	asserted 	several 	affirmative 	defenses, 	all 	of
which 	will 	be 	addressed 	below.
A second 	amendment 	was 	filed 	on 	November 	19, 	1981. 	It
included 	a 	more 	detailed 	restatement 	of 	the 	charge 	as 	already
amended 	and 	expanded 	the 	allegations 	to 	include 	departments 	in
the 	General 	Library 	in 	addition 	to 	Moffitt. 	The 	University
answered 	the 	second 	amendment 	on 	December 	7, 	1981. 	Once 	again,
it 	admitted 	certain 	facts, 	generally 	denied 	the 	allegations 	and
2The 	earlier 	unfair 	practice 	charge, 	SF-CE-39-H, 	was
settled 	prior 	to 	formal 	hearing.
2

offered 	affirmative 	defenses, 	all 	of 	which 	will 	be 	dealt 	with
below.
A complaint 	issued 	on 	December 	8, 	1981. 	A prehearing
conference 	was 	held 	in 	Berkeley 	on 	January 	20, 	1982. 	At 	the
outset 	of 	the 	hearing 	CSEA amended 	the 	charge 	for 	the 	third
time. 	By 	this 	amendment, 	CSEA asserted 	that 	the 	University 	had
converted 	a 	temporary 	position 	in 	Moffitt 	to 	a 	permanent 	one 	in
violation 	of 	past 	practice 	and 	in 	retaliation 	for 	the 	protected
activities 	of 	Moffitt 	employees. 	The 	University denied 	all
aspects 	of 	this 	third 	and 	final 	amendment.
Seven 	days 	of 	hearing 	were 	held 	between 	January 	26, 	1982,
and 	March 	10, 	1982. 	At 	the 	close 	of 	Charging 	Party's
case-in-chief, 	on 	March 	10, 	1982, 	Respondent 	moved 	to 	dismiss
the 	case. 	The 	matter 	was 	taken 	under 	submission 	and 	a 	ruling
denying 	the 	motion 	issued 	by 	the 	undersigned 	on 	July 	29, 	1982.
By 	written 	motion 	of 	October 	7, 	1982, 	and 	orally 	on 	the
record 	at 	the 	resumption 	of 	the 	hearing 	on 	November 	17, 	1982,
the 	Charging 	Party 	withdrew 	all 	allegations 	contained 	in 	the
charge, 	as 	amended, 	except 	the 	following: 	(1) 	that 	by 	reducing
the 	hours 	and 	compensation 	of 	employees 	in 	Moffitt 	the
University 	interfered 	with 	the 	exercise 	of 	protected 	rights 	and
discriminated 	against 	employees 	for 	engaging 	in 	protected
activity; 	(2) 	that 	the 	University 	unilaterally 	changed 	the
hiring/appointment 	practices 	in 	the 	General 	Library 	in
violation 	of 	its 	obligation 	to 	meet 	and 	discuss 	such
3

changes1 	and 	(3) 	that 	the 	change 	in 	appointments 	interfered
with 	protected 	activity 	and 	discriminated 	against 	employees 	who
had 	engaged 	in 	protected 	activity. 	Also 	on 	November 	17 	the
University's 	earlier 	October 	13 	motion 	to 	dismiss 	with
prejudice 	all 	other 	allegations 	in 	the 	charge, 	as 	amended, 	was
granted. 	The 	University's 	motion 	to 	dismiss 	the 	allegation
dealing 	with 	the 	hiring/appointment 	change 	in 	the 	General
Library 	as 	it 	relates 	to 	the 	refusal 	to 	meet 	and 	discuss 	was
taken 	under 	submission 	and 	will 	be 	dealt 	with 	below.
Respondent 	completed 	its 	case 	on 	November 	17, 	1982. 	The
briefing 	schedule 	was 	completed 	on 	March 	8, 	1983, 	and 	the 	case
was 	submitted.
FINDINGS 	OF 	FACT
Protected 	Activity.
Prior 	to 	the 	fall 	of 	1981, 	there 	was 	a 	great 	deal 	of
well-publicized 	protected 	activity 	on 	the 	part 	of 	Moffitt
employees.3 	This 	included 	representation 	of 	employees 	by
CSEA 	in 	a 	variety 	of 	employment 	related 	matters, 	and 	the 	filing
of 	Unfair 	Practice 	Charge 	SF-CE-39-H. 	The 	following 	is 	a
summary 	of 	that 	activity.
3There 	are 	20-25 	branches 	of 	the 	General 	Library. 	Some,
such 	as 	Moffitt, 	are 	branch 	libraries. 	Others 	are
administrative 	offices 	and 	others 	are 	support 	services
branches. 	They 	are 	located 	in 	many 	different 	areas 	throughout
the 	entire 	campus. 	The 	Main 	Library 	is 	adjacent 	to 	Moffitt.
4

Sharon 	Samek 	became 	a 	CSEA 	job 	steward 	in 	February 	1980.
Since 	that 	time 	she 	has 	represented 	several 	employees 	on 	a
variety 	of 	employment 	related 	matters, 	including 	Kathy Gurvis
on 	a 	shift 	differential 	grievance. 	She 	also 	represented
Ben 	Cohen, 	described 	at 	the 	hearing 	as 	a 	union 	activist. 	In
Cohen's 	case 	it 	was 	alleged 	that 	management 	gave 	his 	home 	phone
number 	to 	an 	irate 	patron 	of 	the 	library 	in 	retaliation 	for 	his
having 	engaged 	in 	protected 	activity. 	As 	a 	result, 	it was
alleged, 	Cohen 	received 	harassing 	phone 	calls 	at 	home. 	Samek
also 	helped 	to 	circulate 	a 	petition 	among 	Moffitt 	employees 	on
behalf 	of 	CSEA about 	the 	failure 	of 	library management 	to 	write
timely 	performance 	evaluations. 	Samek 	testified 	that 	employees
passed 	out 	leaflets, 	wore 	union 	buttons, 	and 	posted 	material 	on
bulletin 	boards.
Elaine Ercolini, 	also 	a 	CSEA 	steward, 	signed 	up 	about
25 	Moffitt 	employees 	as 	union 	members. 	She 	participated 	in 	six
meet-and-discuss 	sessions 	with 	management 	concerning 	changes 	in
working 	conditions 	in 	the 	library, 	and 	she 	represented 	several
employees 	in 	grievances 	prior 	to 	the 	fall 	of 	1981.
Kevin 	Mccurdy 	first 	became 	a 	member 	of 	the 	American
Federation 	of 	State 	County 	and 	Municipal Employees 	(AFSCME).
While 	a 	member 	of 	AFSCME 	he 	signed 	up many 	employees. 	When 	he
became 	a 	member 	of 	CSEA 	in 	October 	1979, 	many 	of 	these
employees 	joined 	him 	in 	CSEA. 	After 	Mccurdy 	became 	a 	CSEA
steward, 	he 	represented 	several 	employees 	in 	employment 	related
5

grievances 	in 	August 	1980, 	and 	again 	from May 	1981 	to
August 	1981. 	Mccurdy, 	although 	a 	student 	supervisor, 	also
represented 	employees 	in 	the 	General 	Library.4 	He 	circulated
petitions 	and 	participated 	with 	two 	stewards 	from 	the
circulation 	department 	in 	meet-and-discuss 	sessions 	covering
working 	conditions 	and 	job 	descriptions. 	It 	was 	Mccurdy, 	on
behalf 	of 	CSEA, 	who 	filed 	unfair 	practice 	charge
No. 	SF-CE-39-H, 	charging 	that 	the 	University 	failed 	to meet 	and
discuss 	a 	variety of 	changes 	in 	working 	conditions 	in 	the
Moffitt 	Library. 	The 	charge 	drew 	considerable 	attention 	from
the 	employees 	who 	worked 	in 	Moffitt.
Paul 	Clanon 	appears 	to 	have 	been 	the 	most 	active 	CSEA
member 	in 	the 	General 	Library. 	During 	organizing 	efforts, 	he
passed 	out 	leaflets, 	signed 	up 	new members, 	distributed
newspapers, 	and 	participated 	in 	meetings 	with 	Joseph 	Rosenthal,
the 	head 	of 	the 	General 	Library, 	about 	budget 	cuts 	and 	reduced
hours. 	In 	all 	of 	this 	he 	was 	assisted 	by 	the 	above-named
activists 	from 	Moffitt.
4Although 	so-called 	"student 	supervisors" 	arguably
perform 	some 	supervisory 	duties, 	they 	are 	nevertheless 	treated
here 	as 	employees 	within 	the 	meaning 	of 	the 	Act. 	The
University 	has 	not 	challenged 	their 	status 	as 	employees 	and 	the
record 	does 	not 	support 	any 	other 	conclusion. 	See, 	e.g., 	Unit
Determination 	for 	Professional 	Scientists 	and Engineers, 	--
Lawrence 	Livermore 	National 	Laboratory 	of 	the 	University 	of
California 	(3/8/83) 	PERB 	Decision 	No. 	2466-H.
6

The Events 	Following 	Unfair 	Practice 	Charge 	No. 	SF-CE-39-H.
CSEA 	filed 	unfair 	practice 	charge 	No. 	SF-CE-39-H 	in
December 	1980. 	The 	charge 	alleged 	that 	the 	University, 	on
August 	27, 	1980, 	unilaterally 	implemented 	a 	variety 	of 	changes
in 	working 	conditions 	in Moffitt 	Library 	without 	meeting 	and
discussing 	them 	and 	in 	retaliation 	for 	protected 	activities.
These 	changes 	were 	initiated 	by 	Janice 	Koyama, 	who 	became
the 	head 	librarian 	in 	Moffitt 	earlier 	in 	1980. 	They were
prompted 	by 	Koyama's 	perception 	that 	student 	employees, 	not
library management, 	had 	control 	over 	the 	work 	place. 	For
example, 	upon 	taking 	over 	as 	head 	librarian, 	Koyama 	discovered
that 	almost 	all 	management 	staff 	meetings 	were 	open 	to
employees; 	discipline 	was 	taken 	largely 	by 	employee-management
consensus, 	and 	was 	not 	a 	function 	of 	management; 	employees
freely 	substituted 	for 	co-workers 	and 	thus 	the 	number 	of 	hours
worked 	per 	employee 	was 	not 	determined 	by management;
promotions 	were 	made 	only 	after 	extensive 	input 	by 	student
employees 	and 	management's 	freedom 	to 	select 	from 	outside 	the
library 	was 	severely 	curtailed.
After 	settlement 	talks 	between 	the 	parties 	and 	the
representatives 	of 	PERB, 	SF-CE-39-H was 	settled 	on
May 	14, 	1981. 	There 	was 	no 	admission 	of 	wrongdoing 	by 	the
University. 	All 	charges 	were 	withdrawn 	and 	the 	settlement
agreement 	provided 	in 	relevant 	part:
Designees 	of 	the 	Second 	Party 	will 	meet 	and
discuss 	with 	First 	Parties 	concerning
7

Moffitt 	Library 	procedures 	as 	they 	affect
First 	Party members 	in 	their 	terms 	and
conditions 	of 	employment. 	Meet-and-Discuss
sessions 	will 	commence 	five-working 	days
from 	the 	date 	of 	the 	receipt 	of 	any
proposals 	for 	modification 	of 	Moffitt
Library 	procedures.
Thus, 	by 	the 	terms 	of 	the 	agreement, 	the 	parties 	recognized 	and
accepted 	the 	possibility 	that 	the 	employer 	might 	propose
additional 	changes 	in 	Moffitt. 	Shortly 	thereafter, 	on
May 	22, 	1981, 	the 	University 	proposed 	making 	changes 	in many
areas, 	some 	of 	which 	were 	at 	issue 	in 	SF-CE-39-H, 	and 	it
invited 	CSEA 	to 	meet 	and 	discuss 	these 	proposals.5
Many meet 	and 	discuss 	sessions 	were 	held 	over 	the 	summer 	of
1981. 	The 	parties 	conferred 	about 	distribution 	of 	summer 	hours
on May 	29 	for 	two 	hours 	and 	again 	on 	June 	4, 	for 	two 	hours.
Also 	discussed 	was 	a 	CSEA proposal 	about 	distribution 	of 	hours
5CSEA 	takes 	the 	position 	that 	the 	University's
post-settlement 	proposals 	were 	much 	tougher 	than 	those 	made 	in
August 	1980 	which 	prompted 	the 	filing 	of 	SF-CE-39-H. 	The
nature 	and 	timing 	of 	these 	proposals, 	according 	to 	CSEA,
constitutes 	retaliation. 	There 	were 	proposals 	on 	the
University's 	May 	22 	package 	which 	were 	not 	in 	the 	August 	1980
package. 	However, 	given 	the 	fact 	that 	the 	settlement 	agreement
in 	SF-CE-39-H 	contemplated 	new 	proposals, 	this 	fact 	is 	hardly
one 	of 	significance. 	The 	May 	proposals 	and 	the 	meetings 	at
which 	they 	were 	discussed 	by 	the 	parties 	during 	the 	summer 	and
fall 	of 	1981 	are 	exhaustively 	covered 	in 	the 	record. 	However,
in 	light 	of 	CSEA's 	November 	17, 	1982, 	withdrawal 	of 	major
portions 	of 	the 	charge, 	as 	amended, 	only 	allegations 	dealing
with 	those 	actions 	covering 	reduction 	in 	hours, 	compensation
and 	substitutions, 	and 	indefinite 	appointments 	will 	be
considered 	here 	in 	detail. 	Other 	items 	subject 	to 	the 	meet 	and
discuss 	obligation 	will 	be 	treated 	only 	briefly 	for 	purposes 	of
background.
8

during 	intersession, 	which 	was 	to 	begin 	about 	mid-June. 	During
these 	meetings 	proposals 	and 	counter 	proposals 	were 	exchanged
and 	concessions 	were 	made 	by 	both 	parties. 	Hours 	were
distributed 	on 	June 	8, 	1981.6
At 	another 	meeting 	on 	June 	19, 	the 	parties 	discussed 	the
remaining 	items 	in 	the 	University's 	May 	22 	proposal.7 	The
record 	shows 	that 	the 	parties 	engaged 	in 	a 	full 	discussion of
these 	items 	for 	about 	two 	hours. 	In 	a 	letter 	dated
July 	27, 	1981, 	Mccurdy 	asked 	to 	meet 	about 	procedures 	covering
the 	intersession 	which 	was 	to 	begin 	about 	August 	14. 	The
parties 	met 	on 	August 	11. 	Although 	CSEA vigorously protested
the 	initial 	position 	taken 	by 	the 	University 	at 	that 	meeting,
the 	parties 	eventually 	reached 	a 	meeting 	of 	the 	minds. 	In 	the
end, 	CSEA won 	several 	concessions. 	The 	procedures 	finally
adopted 	were 	in 	many 	respects 	substantially 	in 	line 	with 	CSEA's
initial 	proposals.
6csEA argues 	that 	Mccurdy 	and 	Al 	Trujillo 	had 	already
reached 	agreement 	during 	earlier 	discussions 	in 	February and
March 	1981 	about 	distribution 	of 	summer 	hours, 	and 	it 	was
therefore 	a 	sign 	of 	bad 	faith 	on 	the 	part 	of 	the 	University 	to
seek 	to 	further 	discuss 	this 	issue 	on May 	29. 	The 	University
disputed 	that 	it 	had 	reached 	any 	agreement 	with 	Mccurdy prior
to 	May 	29, 	taking 	the 	position 	that 	summer 	hours 	had 	been
discussed 	but 	not 	finalized. 	There 	is 	no 	need 	to 	address 	this
question, 	since 	CSEA has 	withdrawn 	all 	charges 	dealing 	with 	the
refusal 	to 	meet 	and 	discuss 	summer 	hours.
7These 	were 	as 	follows: 	elimination 	of 	open 	staff
meetings; 	elimination 	of 	the 	ombudsperson 	position; 	selection
procedures 	for 	promotions; 	and 	expansion 	of 	the 	recruitment
pool 	for 	new 	hires 	and/or 	promotions.
9

The 	parties 	met 	again 	on 	September 	3 	to 	discuss 	procedures,
such 	as 	distribution 	of 	hours, 	etc., 	for 	the 	second
intersession, 	which 	was 	to 	begin 	about 	September 	8. 	These
procedures 	were 	agreed 	to 	with 	little 	difficulty during 	the
meeting, 	which 	lasted 	about 	one 	and 	one-half 	hours.a
Also 	during 	the 	September 	3 meeting, 	the 	parties 	discussed
the 	broader 	May 	22 	proposals, 	including 	those 	which 	are 	the
subject 	of 	this 	case. 	The 	University 	raised 	for 	the 	first 	time
the 	possibility 	of 	changing 	from 	indefinite 	to 	definite
appointments 	in 	Moffitt.9 	This 	subject 	had 	not 	been 	in 	the
May 	22 	proposal, 	and 	had 	therefore 	not 	been 	discussed 	during
the 	summer 	meetings.10 	The 	prior 	meetings 	had 	focused
primarily on 	procedures 	and 	working 	conditions 	which 	were 	to
8McCurdy 	testified 	that 	on 	September 	15 	Trujillo
announced 	that 	he 	was 	cutting 	back 	hours 	in 	breach 	of 	the
agreement. 	However, 	nothing 	in 	the 	agreement 	guarantees 	a
given 	number 	of 	hours.
9In 	the 	past, 	while 	continued 	employment 	was 	not
guaranteed, 	no 	formal 	personnel 	action 	was 	required 	for 	a
casual/restricted 	(student) 	employee 	to 	continue 	working 	under
an 	indefinite 	appointment. 	However, 	a 	decision 	would 	have 	had
to 	be 	made 	by 	library management 	that 	there 	was 	enough 	work 	and
money 	to 	employ 	a 	given 	number 	of 	students. 	Under 	a 	definite
appointment, 	a 	separate 	personnel 	action 	would 	presumably 	be
necessary 	to 	renew 	the 	appointment. 	The 	actual 	decision 	to
renew 	an 	appointment 	is 	still 	based 	on 	such 	factors 	as
availability 	of 	work 	and 	funds. 	This 	subject, 	as 	well 	as 	the
other 	changes 	at 	issue 	here, 	is 	more 	fully 	discussed 	below.
lOHowever, 	Mccurdy 	stated 	at 	one 	point 	in 	the 	record 	that
CSEA may 	have 	been 	informed 	of 	this 	proposal 	as 	it 	relates 	to
Moffitt 	as 	early 	as 	August 	11.
10

govern 	employees 	during 	the 	summer 	months 	and 	intersession
periods. 	The 	broader 	proposals, 	which 	were 	to 	be 	implemented
in 	the 	fall, 	were 	to 	some 	extent 	discussed 	simultaneously with
the 	summer 	and 	intersession 	proposals.
The 	subject 	of 	definite 	appointments 	in Moffitt was
discussed 	in 	some 	detail 	on 	September 	3. 	CSEA 	representatives
objected 	to 	the 	change 	in 	the 	hiring 	procedure, 	stating 	that 	it
was 	not 	fair 	to 	new 	employees 	who 	would 	be 	hired 	under 	definite
appointments 	while 	current 	employees 	would 	continue 	to 	have
indefinite 	appointments. 	According 	to 	Mccurdy, 	CSEA stated 	its
concern 	that 	renewal 	of 	definite 	appointments 	would 	require 	a
separate 	personnel 	action 	on 	the 	part 	of 	library management 	and
that 	different 	criteria 	would 	be 	used 	in making 	decisions 	to
renew 	appointments. 	CSEA also 	stressed 	the 	negative 	impact 	the
change 	would 	have 	on 	union 	organizing, 	arguing 	that 	new
employees 	would 	always 	be 	subject 	to 	review on 	a 	regular
basis. 	The 	University 	emphasized 	the 	need 	for 	the 	flexibility
to 	reduce 	staff 	in 	a 	time 	of 	budgetary 	constraints. 	As 	will 	be
more 	fully 	discussed 	below, 	the 	desire 	to 	more 	accurately
inform 	employees 	of 	their 	employment 	status 	under 	such
circumstances 	also 	was 	a 	key 	part 	of 	the 	University's 	position.
Also 	discussed 	on 	September 	3 was 	the 	limitation on 	hours
and 	the 	lower 	compensation 	to 	be 	paid 	to 	employees 	in Moffitt
when 	substituting 	for 	co-workers 	in 	a 	lower 	class. 	These
latter 	subjects 	had 	been 	included 	in 	the 	May 	22 	proposal 	and
11

were 	discussed 	during 	the 	summer. 	The 	University 	announced
that 	these 	procedures 	would 	be 	implemented 	in 	the 	near 	future.
On 	about 	September 	9 	Joseph 	Rosenthal, 	University
librarian, 	and 	Rita 	Kane, 	associate 	University 	librarian 	for
public 	services, 	decided 	that 	the 	change 	from 	indefinite 	to
definite 	appointments 	needed 	to 	be 	made 	in 	the 	General 	Library
as 	well 	as 	in 	Moffitt. 	A memo 	was 	circulated on 	about
September 	17 	announcing 	the 	change 	as 	it 	applied 	to 	the 	General
Library. 	A copy 	of 	the 	memo 	was 	sent 	to 	Mccurdy 	and 	other
student 	supervisors. 	Also 	in mid-September 	the 	University
began 	to 	hire 	student 	employees 	under 	definite 	appointments.
The 	hiring 	process 	continued 	at 	least 	into 	October.
On 	September 	28 	Mccurdy 	received 	a 	new 	draft 	of 	procedures
to 	cover 	the 	fall 	quarter. 	This 	draft 	had 	emerged 	from 	the
September 	3 meeting. 	It 	included 	a 	reference 	to 	the 	change 	in
appointments 	in 	Moffitt, 	but 	did 	not 	mention 	the 	General
Library.
At 	the 	October 	1 meet 	and 	discuss 	session CSEA again
complained 	about 	the 	change 	to 	definite 	appointments. 	The
University was 	not 	persuaded. 	Shortly 	thereafter, 	the 	union
amended 	the 	instant 	charge 	to 	include 	the 	allegation 	that 	the
University 	unilaterally 	implemented 	a 	change 	in 	working
conditions. 	No 	further 	talks 	were 	held 	on 	this 	subject.
12

The 	Changes.
A. 	The 	Definite 	Appointment.
In 	the 	past, 	student 	employees 	were 	hired 	with 	an
indefinite 	ending 	date 	and 	were 	usually 	employed 	from 	year 	to
year 	and 	sometimes 	during 	the 	summer 	until 	they 	lost 	student
status. 	Although 	employment 	from 	year 	to 	year 	was 	not
guaranteed, 	an 	employee 	hired 	before 	the 	fall 	of 	1981
essentially 	had 	the 	expectation 	of 	continued 	employment 	until
he 	or 	she 	lost 	student 	status. 	This 	was 	primiarly 	due 	to 	the
existence 	of 	enough 	work 	and 	funds. 	According 	to 	the 	testimony
of 	Mccurdy, 	even 	he 	conceded 	that 	decisions 	for 	continued
employment 	were 	made 	on 	the 	basis 	of, 	among 	other 	things,
availability 	of 	work 	or 	funds, 	job 	performance, 	and 	seniority,
not 	because 	an 	employee 	had 	an 	indefinite 	appointment. 	In
essence, 	despite 	the 	label 	"indefinite" 	on 	the 	Personnel 	Action
Form 	(PAF), 	continued 	employment 	was 	based 	on 	an 	independent
management 	review 	of 	the 	individual 	employee 	in 	the 	overall
work 	context. 	This 	was 	as 	true 	in 	the 	past 	as 	it 	is 	in 	the
present. 	Under 	the 	present 	system, 	the 	PAF's 	of 	student
employees 	state 	that 	the 	appointment 	is 	for 	a 	"definite"
period, 	usually 	until 	June 	30, 	and 	their 	status 	as 	student
employees 	continues 	to 	be 	evaluated 	at 	that 	time 	by management
for 	purposes 	of 	future 	employment. 	As 	William Wenz, 	the
personnel 	officer 	in 	the 	General 	Library 	testified, 	"when money
begins 	to 	dry 	up, 	so 	do 	the 	working 	hours." 	This 	is 	true
13

whether 	the 	PAF 	says 	the 	appointment 	is 	"indefinite" 	or
"definite."
The 	University's 	reason 	for 	making 	this 	change 	stems 	from
budgetary 	concerns, 	and 	is 	as 	follows. 	In 	early 	1981 	a 	new
budget 	officer 	reported 	to 	Rita 	Kane 	that 	there 	existed 	a
$180,000 	overrun 	in 	the 	General 	Assistance 	(GA} 	budget.11
Wages 	and 	benefits 	for 	student 	employees 	are 	paid 	out 	of 	GA
funds. 	According 	to 	Kane, 	the 	reasons 	for 	the 	overrun were 	as
follows. 	Work 	study 	rates 	for 	students 	went 	from 	20 	percent 	in
the 	previous 	year 	to 	40 	percent 	of 	full 	salary. 	Student
employees 	were 	paid 	at 	higher 	rates 	than 	in 	the 	past, 	and 	those
employees 	who 	worked 	more 	than 	one-half 	time 	were 	receiving
benefits, 	such 	as 	vacation, 	sick-leave, 	etc. 	Money 	to pay
those 	benefits 	came 	out 	of 	the 	GA 	budget. 	Shift 	differential
had 	also 	been 	increased.
In 	February 	of 	1981 	the 	University 	took 	steps 	to 	compensate
for 	the 	deficit. 	A hiring 	freeze 	was 	imposed 	on 	vacant 	career
positions. 	Unit 	heads 	were 	instructed 	to 	develop 	an 	adjusted
General 	Assistance 	budget 	reflecting 	a 	new 	estimate 	of
necessary 	expenditures. 	Unit 	heads 	were 	to 	consider 	deferring
certain 	work, 	if 	possible, 	in 	favor 	of 	doing 	only 	that 	which
was 	necessary 	to 	keep 	the 	libraries 	open. 	Equipment
llJanice 	Koyama 	reports 	to 	Rita 	Kane. 	Kane, 	in 	turn,
reports 	to 	Joseph 	Rosenthal, 	the 	University 	librarian.
14

purchases 	were 	curtailed 	and 	planned 	renovations 	cancelled. 	In
sum, 	the 	University wanted 	to 	improve 	control 	of 	its
expenditures. 	Then 	in 	June 	1981 	to 	compound 	matters, 	the
University 	informed 	the 	General 	Library 	that 	it 	was 	to 	refund
$150,000 	already 	allotted.
Upon 	investigating 	the 	budget 	problem 	further 	Kane
discovered 	among 	other 	things, 	that 	two-thirds 	of 	the 	student
employees 	had 	indefinite 	appointments 	and 	one-third 	had
appointments 	with 	definite 	ending 	dates. 	By 	changing 	the 	PAF's
for 	new 	hires 	to 	reflect 	that 	the 	appointment 	was 	for 	a
definite 	period, 	the 	University more 	accurately 	described 	the
nature 	of 	the 	appointment 	and 	clearly 	communicated 	to_employees
that 	employment 	was 	not 	guaranteed.12 	In 	other 	words, 	by
this 	action, 	the 	University 	demonstrated 	that 	it 	retained 	the
authority 	and 	flexibility 	to 	reduce 	hours 	or 	layoff 	employees
if 	the 	situation 	necessitated 	it, 	and, 	during 	a 	period 	of
continuing 	budgetary 	difficulties, 	there 	was 	an 	increasing
likelihood 	of 	this 	occurring.13 	This 	action, 	according 	to
Kane, 	brought 	the 	library 	into 	conformity 	with 	University-wide
12staff 	Personnel 	Policy 	(SPP) 	section 	720.1, 	provides
that 	casual 	and 	casual-restricted 	employees 	(student 	employees)
are 	the 	first 	to 	be 	reviewed 	when 	lack 	of 	work 	or 	lack 	of 	funds
necessitates 	a 	decrease 	in 	staffing 	levels.
13The 	change 	in 	the 	PAF's 	applied 	only 	prospectively 	to
new hires 	and 	transfers. 	The 	PAF's 	of 	student 	employees
already 	on 	the 	rolls 	were 	not 	changed.
15

policy 	with 	respect 	to 	appointments. 	As 	section 	720.1 	of 	the
SPP 	states,
.... casual 	and 	casual/restricted 	positions
are 	usually 	established 	as 	part 	time 	or 	for
temporary 	periods.
B. 	The 	Limitation 	on 	Hours 	and 	Compensation.
In 	the 	past, 	student 	employees, 	other 	than 	library
assistants 	II, 	were 	normally 	scheduled 	to 	work 	12-18 	hours 	per
week.14 	However, 	through 	free 	substitutions 	and 	special
arrangements 	for 	emergencies, 	some 	employees 	worked 	more 	than
one-half 	time; 	that 	is, 	more 	than 	20 	hours 	per 	week 	for 	an
indefinite 	period 	of 	time. 	The 	head 	of 	a 	library 	had 	the
authority 	to 	authorize 	employees 	to 	work 	more 	than 	20 	hours 	per
week, 	not 	including 	substitutions.
Under 	the 	new 	rule, 	student 	employees 	are 	generally
prohibited 	from 	working 	more 	than 	one-half 	time. 	However, 	the
rule 	states 	that, 	as 	under 	the 	old 	rule, 	exceptions 	can 	be 	made
by 	the 	section 	head 	on 	a 	case-by-case 	basis. 	Thus, 	the 	new
policy, 	as 	now 	written, 	does 	not 	represent 	a 	major 	change 	from
the 	past 	practice. 	In 	fact, 	at 	least 	three 	CSEA activists,
Ercolini, 	Mccurdy, 	and 	Clanon, 	on 	occasion worked 	more 	than
one-half 	time 	after 	the 	so-called 	change.
14student 	employees 	at 	the 	library 	fall 	into 	three
classifications: 	(1) 	library 	assistant 	II, 	(2) 	library
assistant 	I, 	and 	(3) 	clerk. 	Library assistants 	II 	are
considered 	student 	supervisors.
16

In 	a 	related 	matter 	involving 	hours, 	the 	University moved
to 	retain 	the 	flexibility 	to 	reduce 	hours 	during 	any 	given
academic 	quarter 	to 	accommodate 	fluctuating 	needs 	in 	a
particular 	section. 	Management 	had 	the 	authority 	to 	take 	such
action 	in 	the 	past, 	but, 	according 	to 	Mccurdy, 	never 	exercised
it. 	Mccurdy 	testified 	that 	CSEA objected 	to 	this 	action, 	not
because 	it 	constituted 	a 	change, 	but 	because 	it 	represented 	a
management 	attempt 	to 	emphasize 	its 	authority 	in 	this 	area.
The 	next 	management 	action 	dealt 	with 	substitutions. 	This
also 	related 	to 	the 	hours 	change. 	In 	the 	past, 	the
substitution 	policy 	at 	Moffitt 	was 	very 	liberal. 	Lists 	were
posted 	whereby 	employees 	could 	designate 	hours 	they 	wanted 	to
give 	up 	(i.e. 	not 	work} 	and 	hours 	they 	wanted 	to 	substitute 	for
another 	worker. 	An 	employee 	who 	wanted 	to 	substitute 	could
choose 	hours 	from 	the 	list, 	cross 	them 	off, 	fill 	out 	a
substitute 	slip, 	and 	put 	it 	in 	the 	substitute 	slip 	box. 	The
employee 	would 	then 	proceed 	to 	substitute 	the 	hours 	he 	or 	she
had 	chosen. 	This 	system had 	been 	encouraged 	in 	the 	past 	to
accommodate 	student 	employees 	whose 	schedules 	varied. 	Although
the 	procedure 	was 	administered 	by 	management 	officials 	who 	had
the 	authority 	to 	intervene 	on 	any 	given 	substitution,
monitoring 	the 	program was 	time-consuming 	and 	burdensome.
The 	basic 	substitution 	system 	has 	not 	changed. 	However,
substitutions 	are 	now 	limited 	in 	two 	ways. 	First, 	an 	employee
cannot 	substitute 	for 	another 	employee 	when 	in 	doing 	so 	he/she
17

would 	end 	up 	working 	more 	than 	one-half 	time, 	in 	violation of
the 	one-half 	time 	rule 	discussed 	above. 	Second, 	an 	employee
who 	substitutes 	for 	someone 	in 	a 	lower 	class 	is 	now paid 	at 	the
rate 	applicable 	to 	the 	lower 	class. 	In 	other 	words, 	a 	library
assistant 	II 	who 	works 	in 	place 	of 	a 	clerk 	would 	be 	paid 	at 	the
clerk's 	rate. 	Without 	this 	change 	more 	money 	would 	have 	to 	be
paid 	out 	of 	GA 	funds 	than 	had 	been 	initially 	budgeted 	to
perform 	the 	work.
The 	University, 	through 	the 	testimony of 	Janice 	Koyama,
explained 	the 	reasoning 	behind 	the 	changes 	in 	hours,
substitutions, 	and 	compensation 	limitation 	for 	substitutes.
Budgetary 	constraints, 	apparently 	necessitated 	by 	the 	overall
financial 	difficulties 	in 	the 	General 	Library, 	were 	paramount
in 	her 	thinking 	at 	the 	time 	of 	the 	changes 	in 	Moffitt. 	In 	this
regard, 	she 	explained 	her 	budget 	related 	reasons 	as 	follows:
The 	funds 	that 	allocated 	to 	a 	library 	unit
for 	a 	student 	employees 	are 	called 	general
assistance 	or 	G.A. 	funds. 	With 	the 	money
that 	is 	available 	to 	any 	library 	unit, 	one
would 	need 	to 	pay 	wages 	for 	those 	students
for 	the 	hours 	worked. 	And 	for 	any 	stuclents
who 	worked 	over 	twenty-hours, 	vacation 	and
sick 	leave 	benefits 	on 	a 	pro-rated 	basis 	can
then 	be 	accrued 	and 	or 	paid 	at 	the 	same
general 	assistance 	funds. 	In 	other 	words,
salaries 	and 	benefits 	for 	student 	employees
come 	out 	of 	the 	same 	money 	or 	monies. 	To
restrict 	the 	number 	of 	hours 	of 	the 	student
can 	work 	then, 	to 	below 	20 	hours, 	would 	mean
that 	for 	any manager 	for 	any 	library 	unit
you 	could 	use 	all 	the 	money 	available 	to 	you
for 	work 	hours 	and 	you 	could 	control 	the
amount 	of 	money 	paid 	for 	nonwork 	hours. 	It
was 	my 	choice 	to 	do 	the 	later.
18

Koyama 	had 	begun 	a 	review 	of 	the 	ratio 	of 	student 	salaries 	to
benefits 	soon 	after 	she 	took 	the 	position 	in Moffitt.15 	It
was 	this 	review 	which 	at 	least 	in 	part 	prompted 	her 	to 	make 	the
complained 	of 	decisions, 	particularly 	because 	employees 	working
more 	than 	one-half 	time 	accrued 	University 	benefits.
In 	addition, 	Koyama 	testified 	that 	her 	desire 	to 	achieve
consistency 	with 	University-wide 	policy 	regarding 	hours 	played
a 	role 	in 	her 	decision 	to 	institute 	changes 	in 	this 	area.16
In 	the 	General 	Library 	for 	example, 	student 	employees 	were
generally 	assigned 	12-18 	hours 	per 	week, 	and 	Koyama 	wanted 	to
achieve 	the 	same 	in 	Moffitt.
15She 	noticed 	that 	several 	student 	employees 	were
severing 	their 	employment 	relationship 	with 	Moffitt 	and 	cashing
out 	the 	benefits, 	e.g., 	vacation 	time, 	they 	had 	earned. 	One
employee, 	for 	example, 	cashed 	out 	$500 	worth 	of 	benefits.
Koyama, 	while 	realizing 	the 	employee 	was 	entitled 	to 	the 	money,
determined 	that 	it 	was 	a 	substantial 	amount 	that 	could 	grow
into 	a 	significant 	expenditure 	if 	student 	employees 	were
permitted 	to 	accrue 	benefits 	as 	they 	chose. 	She 	therefore
moved 	to 	gain 	control 	over 	when 	student 	employees 	could 	earn
benefits. 	Also, 	Koyama 	testified 	that 	she 	estimated 	the
savings 	in 	this 	area 	to 	be 	considerable, 	although 	she 	could 	not
state 	exactly 	how much 	was 	at 	stake 	because 	Moffitt 	had 	no
internal 	auditing 	procedures. 	In 	the 	fiscal 	year 	1981-82,
after 	an 	internal 	auditing 	procedure 	was 	implemented, 	it was
determined 	that 	$10,000 	was 	spent 	on 	benefits, 	a 	lower 	amount
than 	would 	have 	been 	paid 	out 	if 	the 	change 	had 	not 	been made.
16Respondent 	takes 	the 	position 	that 	Staff 	Personnel
Policy 	(SPP) 	section 	110, 	limits 	student 	employees 	in
casual-restricted 	positions 	to 	less 	than 	one-half 	time. 	The
language 	of 	this 	section 	is 	by 	no means 	clear 	on 	this 	point.
However, 	the 	fact 	that 	the 	SPP 	does 	not 	expressly 	require 	that
casual-restricted 	employees 	work 	less 	than 	one-half 	time 	does
not 	detract 	from 	Koyama's 	good 	faith 	interpretation 	of 	that
provision 	or 	her 	stated 	intention 	to 	make 	the 	practice 	in
Moffitt 	consistent 	with 	the 	practice 	in 	the 	General 	Library.
19

Lastly, 	Koyama 	sought 	more 	managerial 	flexibility 	in
distributing 	hours, 	especially 	to 	student 	employees. 	She
testified 	that 	one 	goal 	of 	the 	University 	is 	to 	employ 	as 	many
students 	as 	possible. 	In 	a 	period 	of 	limited 	federal 	and 	state
funds, 	campus 	jobs 	become 	more 	important. 	By 	limiting 	hours 	to
below 	one-half 	time, 	she 	reasoned, 	more 	students 	could 	be
employed. 	Also, 	Koyama 	felt 	that 	the 	goal 	of 	students 	at 	the
University 	should 	be 	to 	focus 	on 	academics 	and 	working 	more
than 	one-half 	time 	presented 	an 	obstacle 	to 	achieving 	that 	goal.
Allegations 	of 	Unlawful 	Motive.
At 	the 	hearing 	and 	again 	in 	its 	brief 	the 	Charging 	Party
argued 	that 	the 	trier 	of 	fact 	should 	infer 	an 	unlawful 	motive
from 	one 	or 	more 	of 	the 	following 	incidents. 	I 	have 	carefully
considered 	all 	of 	these 	incidents, 	and, 	as 	more 	fully 	discussed
below, 	decline 	to 	infer 	such 	a 	motive.17
A. 	Whitson-Mccurdy 	Conversation.
In 	late 	1980 	or 	early 	1981, 	William Whitson, 	then 	acting
head 	of 	circulation 	in 	Moffitt, 	saw 	and 	overheard 	Mccurdy
talking 	to 	a 	fellow 	employee 	about 	a 	grievance. 	Apparently
thinking 	Mccurdy 	was 	supposed 	to 	be 	working, 	he 	pulled 	him
17Also 	in 	its 	brief, 	the 	Charging 	Party 	appears 	to 	argue
that 	some 	of 	these 	incidents 	constitute 	unlawful 	retaliation
and 	thus 	separate 	violations 	of 	the 	Act. 	None 	of 	these
incidents 	were 	charged 	as 	separate 	violations 	and, 	having 	not
been 	fully 	litigated, 	cannot 	be 	considered 	as 	such. 	San 	Ramon
Valley 	Unified 	School 	District 	(8/9/82) 	PERB 	Decision 	No. 	230.
20

aside 	and 	said 	he 	could 	be 	repirmanded 	for 	engaging 	in 	such
activity. 	Mccurdy 	asked 	for 	a 	representative 	and 	Whitson 	said
he 	didn't 	need 	one. 	The 	conversation 	lasted 	only 	a 	few
minutes. 	Apparently Whitson, 	who 	had 	just 	attended 	a 	lecture
on 	access 	and 	other 	organizational 	rights 	under 	HEERA, 	felt
Mccurdy 	was 	in 	violation 	of 	some 	rule.
It 	turned 	out 	that 	Mccurdy 	was 	not 	on 	work 	time 	and 	was 	in
the 	bulding 	to 	see 	another 	employee 	about 	a 	grievance. 	Mccurdy
was 	never 	reprimanded, 	nor 	was 	his 	protected 	activity 	curtailed
by Whitson 	at 	any 	point 	in 	the 	future. 	Whitson's 	comments,
though 	arguably 	improper 	under 	the 	circumstances, 	appear 	to
represent 	an 	isolated 	incident 	during 	which 	he 	believed 	Mccurdy
was 	on 	work 	time 	and 	he 	(Whitson) 	was 	properly 	following 	some
access 	or 	other 	rule 	which 	was 	the 	subject 	of 	the 	recent
lecture. 	For 	these 	reasons, 	I 	attribute 	no 	unlawful 	motive 	to
him 	by 	virtue 	of 	the 	conversation 	with 	Mccurdy.
B. 	The 	Library 	Carts.
Another 	incident 	cited 	by CSEA 	to 	show 	unlawful 	motive, 	in
the 	form 	of 	a 	threat 	by 	a 	supervisor 	to 	a 	CSEA activist,
involved 	library 	carts 	upon 	which 	someone 	had 	written 	"CSEA"
and 	"Janice 	and 	Al 	are 	paying 	their 	rent 	this 	summer, 	are
you?" 	Trujillo 	had 	the 	carts 	cleaned. 	Later, 	at 	a 	staff
meeting 	during 	the 	summer 	of 	1981 	shortly 	before 	Trujillo went
on 	vacation, 	he 	said 	that 	if 	the 	carts 	were 	written 	on when 	he
came 	back, 	"You, 	Kevin 	(referring 	to 	Mccurdy), 	will 	clean 	them
21

up." 	He 	also 	said 	that, 	alternatively, 	the 	library
assistants 	II 	would 	have 	to 	clean 	them 	up 	in 	alphabetical 	order.
Mccurdy 	interpreted 	this 	as 	a 	threat, 	since 	he 	and 	the
other 	library 	assistants 	II 	were-either 	CSEA activists 	or 	CSEA
members. 	I 	decline 	to 	interpret 	this 	as 	an 	illegal 	threat. 	It
seems 	to me 	more 	likely 	that 	Trujillo, 	during 	a 	staff 	meeting,
simply 	told 	Mccurdy 	and 	the 	other 	library 	assistants 	II, 	who
were 	student 	supervisors, 	that 	he 	did 	not 	want 	to 	see 	the 	carts
marked 	up 	when 	he 	returned 	from 	vacation, 	and 	he 	would 	hold
them 	responsible 	if 	that 	happened. 	Granted, 	Trujillo may 	not
have 	phrased 	his 	directive 	in 	the 	best 	possible 	way.
Nevertheless, 	under 	the 	circumstances 	it 	was 	not 	improper 	for
Trujillo 	to 	hold 	the 	student 	supervisors 	responsible.
Protected 	activity 	or 	union 	membership 	did 	not 	shield 	them 	from
this 	responsibility.
c. 	Trujillo-Ercolini 	Conversation 	about 	SF-CE-39-H.
The 	morning 	after 	SF-CE-39-H was 	settled, 	Al 	Trujillo, 	who
had 	taken 	over 	for 	Whitson 	as 	head 	of 	the 	circulation
department 	in 	Moffitt, 	expressed 	dissatisfaction 	with 	the
settlement 	to Ercolini 	as 	several 	employees 	looked 	on.
Trujillo 	was 	distressed 	because 	the 	discussion 	occurred 	early
in 	the 	morning, 	the 	settlement 	having 	been 	reached 	late 	the
prior 	afternoon. 	Trujillo, 	who 	despite 	his 	position 	as 	head 	of
circulation 	did 	not 	take 	part 	in 	the 	settlement 	talks, 	was
upset 	that 	he 	had 	learned 	of 	the 	settlement 	from Ercolini
rather 	than 	from 	a 	University 	representative. 	Also, 	Trujillo
22

appeared 	visibly 	upset 	over 	the 	substance 	of 	the 	settlement
agreement 	to 	the 	point 	of 	threatening 	to 	resign.
It 	is 	well-established 	that 	the 	employer 	is 	entitled 	to
express 	his 	views 	on 	employment-related 	matters 	over 	which 	he
has 	a 	legitimate 	concern 	as 	long 	as 	there 	is 	no 	threat of
reprisal 	or 	force 	or 	promise. 	In my 	view, 	Trujillo 	did 	not
violate 	this 	principle 	during 	the 	conversation 	with 	Ercolini.
He 	may 	have 	been 	justifiably 	upset 	because 	he 	was 	excluded 	from
the 	settlement 	talks, 	and 	his 	behavior 	represented 	only 	a 	means
of 	ventilating 	his 	anger. 	This 	does 	not 	automatically
translate 	into 	anti-union 	sentiment. 	Also, 	Trujillo's
dissatisfaction 	with 	the 	terms 	of 	the 	agreement, 	without 	more,
does 	not 	add 	up 	to 	unlawful 	motive. 	He 	had 	no 	obligation 	to
"like" 	the 	agreement. 	His 	only 	obligation 	was 	to 	live 	up 	to
its 	terms, 	which 	he 	did. 	He 	met 	with 	CSEA on 	request,
participated 	in 	the 	meet 	and 	discuss 	sessions 	contemplated 	by
the 	very 	terms 	of 	the 	settlement, 	and 	otherwise 	lived 	up 	to 	the
substance 	of 	the 	agreement. 	And 	his 	threat 	to 	resign 	can
hardly 	be 	taken 	as 	a 	threat 	against 	employees. 	In 	fact, 	under
the 	circumstances, 	it 	appears 	that 	at 	least 	some 	employees
would 	have 	been 	delighted 	to 	see 	him go. 	While 	one 	might
question 	Trujillo's 	judgment, 	his 	statements 	for 	purposes 	of
this 	case 	were 	a 	legitimate 	expression 	of 	concern 	about 	an
employment-related 	matter 	and 	carried 	no 	threat 	of 	reprisal,
force, 	or 	promise.
23

D. 	Trujillo-Mccurdy 	Lunch 	Break 	Conversation.
Another 	incident 	in 	late 	summer 	1981 	involved 	a
conversation 	between 	Mccurdy 	and 	another 	employee 	who 	had 	been
told 	by 	her 	supervisor 	not 	to 	take 	lunch 	because 	there 	was 	a
staffing 	problem 	in 	the 	billing 	office. 	Within 	earshot 	of
Trujillo, 	she 	facetiously 	asked 	Mccurdy 	if 	employees 	are
entitled 	to 	a 	lunch 	break. 	The 	two 	began 	a 	light 	exchange
about 	the 	subject, 	with 	Mccurdy 	responding 	in 	a 	joking 	manner
that 	only 	library 	assistants 	III 	and 	library 	assistants 	IV get
lunch 	these 	days, 	and 	maybe 	she 	would 	get 	to 	take 	lunch 	if 	she
became 	a 	library 	assistant 	III. 	These 	are 	supervisory
positions, 	of 	which 	there 	are 	only 	two 	in 	the 	library, 	and
Trujillo 	was 	the 	only 	library 	assistant 	IV. 	Trujillo
immediately 	called 	Mccurdy 	into 	his 	office, 	otherwise 	known 	as
the 	"cage," 	and 	said 	his 	behavior 	was 	"unacceptable." 	Trujillo
told 	Mccurdy,
I've 	had 	it 	with 	sly 	remarks 	and 	your
statements. 	They're 	loud 	and 	people 	can
hear 	them 	all 	over.
Apparently 	having 	heard 	the 	same 	complaint 	about 	his 	voice 	on
other 	occasions, 	Mccurdy 	agreed 	that 	Trujillo's 	comment 	on 	that
point 	might 	have 	been 	justified, 	but 	objected 	to 	the 	substance
of 	what 	was 	said. 	Trujillo 	said 	that 	he 	was 	documenting 	such
incidents 	and 	action 	"can 	be 	taken." 	Mccurdy 	said 	he 	wanted 	a
union 	representative 	if 	Trujillo 	intended 	to 	discuss 	the 	matter
further. 	He 	then 	left 	the 	room 	and 	the 	matter 	was 	never 	raised
again.
24

Once 	again, 	I 	decline 	to 	interpret 	this 	exchange 	as 	illegal
or 	tainted 	by 	an 	unlawful 	motive. 	In 	effect, 	Mccurdy, 	along
with 	another 	employee, 	teased 	Trujillo 	in 	a 	loud 	voice 	about
the 	right 	to 	take 	lunch 	because 	of 	his 	supervisory 	status,
while 	implying 	that 	the 	right 	was 	limited 	or 	nonexistent 	for
non-supervisors. 	What 	ensued 	was 	a 	sharp 	exchange 	where
Trujillo 	spoke 	his 	mind, 	telling 	Mccurdy 	that, 	in 	his 	view, 	the
comments 	were 	improper. 	This 	represents 	to me 	nothing 	more
than 	a 	heated 	routine 	shop 	floor 	discussion 	between 	a 	union
representative 	and 	a 	supervisor 	about 	a 	matter 	of
disagreement. 	And 	since 	the 	matter 	was 	never 	raised 	again, 	nor
was 	Mccurdy 	ever 	documented, 	it 	can 	hardly 	be 	taken 	seriously
as 	evidence 	of 	an 	unlawful 	motive.18
E. 	Trujillo-Iskow 	Conversation.
Summer 	hours 	were 	to 	be 	distributed 	at 	about 	the 	time 	the
parties 	were 	negotiating 	for 	a 	settlement 	on 	SF-CE-39-H. 	Some
employees, 	including 	Rachel 	Iskow, 	began 	to 	get 	a 	little
anxious 	waiting 	for 	the 	hours 	to 	be 	distributed. 	Iskow went 	to
Trujillo 	and 	asked 	when 	summer 	hours 	would 	be 	announced. 	She
was 	under 	the 	impression 	that 	the 	distribution 	would 	be 	based
18Another 	confrontation 	between Mccurdy 	and 	Trujillo
occurred 	when 	these 	two 	met 	on 	a 	BART 	train 	a 	few 	days 	before
the 	hearing 	in 	this 	matter 	began. 	Since 	the 	conversation
occurred 	so 	long 	after 	the 	conduct 	which 	forms 	the 	basis 	of
this 	charge, 	it 	cannot 	be 	used 	to 	determine 	Trujillo's 	state 	of
mind 	at 	the 	time 	of 	the 	complained-of 	conduct. 	Therefore, 	the
BART 	train 	discussion 	will 	not 	be 	considered.
25

solely 	on 	seniority. 	Trujillo 	said 	he 	was 	a 	proponent of
assigning 	hours 	based 	on 	seniority, 	and 	he 	was 	prepared
immediately 	to 	make 	the 	assignments 	on 	that 	basis. 	But 	he 	said
he 	could 	not 	do 	so 	because 	the 	issue 	was 	not 	in 	his 	hands, 	nor
was 	it 	in 	Koyama's 	hands. 	According 	to 	Iskow's 	impression,
Trujillo made 	it 	sound 	like 	CSEA was 	holding 	up 	the
distribution 	of 	hours, 	and 	he 	further 	suggested 	that 	if 	she
could 	find 	employment 	elsewhere 	she 	should 	take 	it 	because 	he
did 	not 	know 	with 	certainty 	when 	the 	hours 	question 	would 	be
resolved.
In 	fact, 	Trujillo's 	comments 	were 	not 	inaccurate. 	The
hours 	question 	was 	being 	talked 	about 	in 	conjunction 	with 	the
settlement 	negotiations 	in 	SF-CE-39-H, 	apparently 	with 	the
consent 	of 	both 	parties. 	And 	Trujillo 	in 	fact 	may 	have 	been
prepared 	to 	distribute 	hours 	immediately 	based 	on 	seniority 	if
the 	matter 	were 	left 	to 	him. 	Further, 	even 	Iskow 	admitted 	that
at 	the 	time 	she 	spoke 	to 	Trujillo 	she 	was 	under 	the 	impression
that 	management 	and 	CSEA were 	discussing 	the 	hours 	issue,
presumably 	with 	an 	eye 	toward 	reaching 	agreement, 	not 	delaying
it. 	The 	record 	is 	replete 	with 	documentation 	that 	CSEA was
pressing 	to 	get 	the 	summer 	hours 	question 	resolved 	in 	a 	manner
favorable 	to 	employees, 	and 	this 	was 	well 	known 	throughout
Moffitt. 	It 	seems 	unlikely 	that 	anyone, 	even 	Trujillo, 	would
claim CSEA was 	"holding 	up" 	hours, 	and 	it 	is 	even 	more 	unlikely
that 	anyone, 	including 	Iskow, 	would 	believe 	such 	a 	claim. 	It
26

appears 	that 	Trujillo 	merely 	described 	the 	situation 	to 	Iskow
as 	he 	saw 	it~ 	that 	is, 	hours 	were 	not 	being 	distributed 	because
the 	subject 	was 	being 	discussed 	by 	the 	parties 	along 	with
SF-CE-39-H. 	For 	these 	reasons, 	Trujillo's 	statements 	were 	not
improper, 	and 	I 	decline 	to 	attribute 	an 	unlawful 	motive 	to 	him
because 	of 	the 	comments.
F. 	Whitson 	Memo 	to 	Trujillo.
Whitson, 	now 	associate 	librarian 	in 	Moffitt, 	previously
served 	as 	acting 	head 	of 	circulation 	for 	about 	a 	year. 	Upon
stepping 	down 	in 	the 	spring 	of 	1981, 	he 	wrote 	a 	memo 	to
Trujillo, 	his 	successor. 	The 	complete 	memo 	reads 	as 	follows:
Problems 	to Watch 	For
1. 	Schedules, 	time 	cards.
a. 	Some 	people 	always 	try 	to 	work 	with 	friend 	or
on 	certain 	nights 	or 	weekends, 	especially one
group, 	Kevin 	Mccurdy, 	Jim 	Donato,
Lori 	Patterson, 	Karen 	Landau. 	Lisa Mednick
and 	Elaine Ercolini.
While 	I've 	little 	evidence 	that 	this 	means
they 	work 	less, 	there 	is 	a 	strong 	possibility
that 	they 	are 	inclined 	to 	chat 	more 	although
it's 	also 	possible 	they 	work 	better 	when
together 	(enjoy 	it 	more 	when 	with 	friends).
The 	other 	problem 	is 	that 	you 	may 	never 	see
these 	people 	or 	that 	their 	work 	can 	only 	be
evaluated 	by one 	or 	two 	supervisors 	who
happen 	to 	be 	close 	friends 	(and 	their 	union
leaders).
b. 	Many 	people 	have 	taken 	to 	working 	more 	than
six 	hours 	without 	clocking 	out. 	People 	like
Kevin 	Mccurdy, 	Jim 	Donato, 	definitely 	know
better, 	but 	still 	do 	it 	with 	impunity, 	also,
Richard 	Rosario, 	other 	supervisors 	and 	LA 	I's
to 	some 	extent.
27

c. 	It 	is 	frequent 	practice 	to 	make 	a 	special
exception 	and 	clock 	someone 	out 	after
they've 	left, 	allowing 	them 	to 	take 	a 	break
at 	the 	end 	of 	a 	shift.
d. 	Write-ins 	are 	commonplace, 	Kevin 	Mccurdy
especially 	a 	problem.
e. 	We 	need 	better 	guidelines 	on 	subbing. 	It's
useful 	to 	use, 	but 	people 	can 	almost 	work 	as
many 	hours 	as 	they 	choose 	without 	our
knowing 	anything 	about 	it 	until 	a 	month
later. 	They 	also 	earn 	benefits.
f. 	There 	aren't 	any 	clear 	rules 	about 	LA 	I's
and 	LA 	II's 	subbing 	for 	clerks 	and 	LA 	I's.
There 	used 	to 	be 	an 	understanding 	that 	it
couldn't 	be 	done 	except 	in 	emergencies.
Whitson 	testified 	that 	the 	memo 	represented 	his 	effort 	to
familiarize 	Trujillo 	with 	the 	problems 	and 	practices 	in 	the
unit. 	The 	memo 	contained 	a 	list 	of 	problems 	which 	had
developed 	over 	the 	last 	year, 	but Whitson 	had 	not 	addressed
them 	directly 	because 	he 	felt 	"uncomfortable" 	raising 	such
matters, 	especially 	with 	Mccurdy. 	He 	testified 	that 	he 	wanted
to 	minimize 	the 	number 	of 	problems 	where 	he 	was 	forced 	into
confronting 	Mccurdy. 	The 	result 	was 	that 	Trujillo 	inherited 	a
laundry 	list 	of 	undiscussed 	and 	unresolved 	problems.
Whitson 	testified 	as 	follows 	about 	his 	reasons 	for 	the
statements 	in 	the 	memo. 	In 	the 	course 	of 	his 	duties 	he 	became
aware 	that 	certain 	groups 	of 	students 	developed 	a 	pattern where
they 	frequently 	worked 	together, 	usually 	under 	the 	same 	student
supervisor. 	This 	presented 	problems 	in 	evaluating 	these
students. 	The 	evaluation 	process 	involved 	meetings 	where
Whitson, 	along 	with 	six 	supervisors, 	commented 	on 	and 	rated
28

students. 	Whitson 	was 	ultimately 	responsible 	for 	preparing 	the
evaluation, 	signing 	it 	and 	meeting 	with 	the 	employee.
According 	to Whitson, 	at 	some 	evaluation meetings 	supervisors
were 	unable 	to 	comment 	on 	the 	employees 	because 	they 	had 	had 	no
contact 	with 	them. 	When 	this 	happened, 	Whitson 	had 	to 	rely on
only 	one 	or 	two 	supervisors 	who 	had 	had 	contact 	with 	the
student 	being 	evaluated. 	This 	made 	Whitson 	uncomfortable
because 	he 	was 	not 	getting 	the 	broad-based 	supervisory 	input 	he
felt 	he 	needed 	to 	complete 	a 	fair 	and 	objective 	evaluation.
He 	summed 	up 	his 	reasons 	as 	follows:
Well, 	where 	I 	had 	not 	basis 	for 	evaluating
the 	quality 	of 	the 	supervisory 	input. 	I 	had
six 	people 	there 	to 	give 	me 	input. 	But
getting 	back 	to, 	you 	know, 	this 	memo, 	the
reason 	that 	I 	was 	concerned 	about 	this 	work
pattern, 	and 	I 	think 	it 	may 	be 	less 	important
in 	the 	overall 	scheme 	of 	things 	than 	this
session 	seems 	to 	make 	it, 	but 	I 	think 	one 	of
the 	reasons 	that 	I 	thought 	of 	this 	as
somethings 	to 	be 	concerned 	about 	was 	simply
that 	where 	I 	was 	so 	dependent 	on 	getting 	a
range 	of 	comment 	from 	six 	different 	people,
if 	some 	of 	those 	people 	said 	they 	couldn't
comment 	and 	I 	had 	to 	rely 	just on 	a 	couple
of 	people's 	input, 	then 	I 	felt 	less 	secure.
And 	it 	was 	a 	natural 	thing. 	And 	then 	if
there 	was 	some 	reason 	to 	think 	that 	the 	two
people 	say 	that 	did 	have 	comment 	were 	close
friends 	or 	that 	they 	were 	involved 	in 	an
organizational 	activity, 	that that 	would
make 	me 	feel 	a 	little 	less 	secure, 	even.
And 	it 	wasn't 	that 	they 	were 	involved 	in 	the
union, 	it 	was 	just 	simply 	that 	where 	people
are 	working 	together, 	have 	things 	in 	common
or 	their 	friends 	or 	associates, 	there 	may
be, 	you 	know, 	you 	may 	prefer 	to 	have 	a
little 	bit 	more 	objective 	comment, 	as 	well,
to 	ensure 	that 	there 	isn't 	any 	bias
operating.
29

As 	he 	stated 	in 	the 	memo, 	Whitson 	testified 	that 	his 	concerns
were 	only 	for 	potential 	problems. 	He 	had 	no 	evidence 	of 	actual
wrongdoing.
Employees 	named 	in 	paragraph 	"a" 	of 	the 	memo 	regularly
worked 	on 	the 	Sunday 	night 	shift 	which 	was 	supervised 	by
Mccurdy. 	In 	fact, 	he 	recalled 	employees 	expressly 	requesting
to 	be 	assigned 	to 	the 	shift 	supervised 	by Mccurdy. 	Further,
the 	employees 	named 	in 	paragraph 	"a" 	were 	the 	only 	ones 	whose
schedules 	had 	formed 	the 	pattern 	about 	which 	Whitson was
concerned.19
Under 	these 	circumstances, 	Whitson's 	comments 	in
paragraph 	"a" 	cannot 	be 	viewed 	as 	carrying 	an 	unlawful 	motive.
While 	it 	may 	have 	been 	better 	to 	confront 	the 	named 	employees
directly 	with 	this 	problem, 	the 	fact 	that 	he 	did 	not 	is 	not
fatal. 	In 	my 	view, 	Whitson 	was 	simply passing 	on 	some
employment-related 	information 	concerning 	the 	evaluation
process 	to 	an 	incoming 	supervisor. 	He 	was 	legitimately
concerned 	about 	bias 	in 	the 	evaluation process. 	And, 	since 	the
employees 	named 	in 	the 	memo 	were 	the 	only 	ones 	who 	caused 	this
concern 	in Whitson's 	mind, 	it 	cannot 	be 	concluded 	that 	the
comments 	were 	discriminatory. 	This 	conclusion 	is 	supported 	by
19Also, 	Ercolini 	and 	Donato 	were 	also 	student
supervisors. 	This 	meant 	that 	the 	Sunday 	night 	shift,
supervised 	by Mccurdy, 	had 	three 	student 	supervisors, 	an
undesirable 	situation 	in Whitson's 	view.
30

Whitson's 	recognition 	that 	these 	employees 	may 	work 	more
efficiently 	together, 	thus 	implying 	that 	maybe 	nothing 	needs 	to
be 	done.
Whitson 	wrote 	in 	paragraph 	"b" 	that 	many 	people 	had 	been
working 	more 	than 	six 	hours 	without 	clocking 	out. 	He 	cited
Mccurdy 	and 	Donato 	as 	individuals 	who 	had 	done 	it 	with
"impunity." 	When 	asked 	about 	this 	comment, 	Whitson, 	without
contradiction, 	said 	he 	used 	the 	word 	"impunity" 	because 	they
had 	been 	doing 	it 	with 	increasing 	frequency 	and 	had 	made 	no
attempt 	to 	correct 	the 	practice. 	Mccurdy 	and 	Donato 	were 	CSEA
activists, 	but 	Richard 	Rosario, 	who 	was 	also 	named 	in 	the 	memo,
was 	not.
Paragraph 	"b" 	simply 	reflects 	Whitson's 	legitimate 	concerns
about 	employees 	properly 	clocking 	out. 	Based 	on 	the 	record 	it
appears 	that 	Mccurdy 	and 	Donato 	frequently 	did 	not 	do 	what 	was
expected 	in 	this 	regard 	and 	thus 	Whitson 	was 	justified 	in
describing 	them 	as 	individuals 	who 	had 	acted 	with 	impunity.
Also, 	the 	fact 	that 	Rosario 	was 	mentioned 	indicates 	that
Whitson's 	comment 	was 	not 	discriminatory.
In 	paragraph 	"e" 	Whitson 	again 	named 	Mccurdy, 	this 	time 	as
"a 	problem" 	when 	it 	comes 	to 	write-ins. 	Employees 	are 	supposed
to 	punch 	in 	when 	starting 	work 	and 	punch 	out 	when 	stopping. 	If
there 	is 	an 	error 	or 	if 	an 	employee 	forgets, 	he 	or 	she 	can 	go
to 	the 	time 	clock 	supervisor, 	who 	can 	authorize 	an 	exception
and 	write 	in 	the 	correct 	time. 	When 	this 	happens, 	however, 	the
31

supervisor 	cannot 	be 	sure 	of 	the 	correct 	time 	and 	has 	to 	take
the 	employee's 	word 	for 	it. 	Whitson 	testified, 	again 	without
contradiction, 	that 	Mccurdy 	had 	an 	unusually 	high 	number 	of
write-ins. 	While 	other 	employees 	occasionally 	used 	the
write-in method 	of 	clocking 	in 	and 	out, 	Mccurdy 	had 	such 	high
numbers 	in 	this 	practice 	that 	Whitson 	felt 	compelled 	to 	include
his 	name 	in 	the 	memo. 	Hence, 	Mccurdy 	was 	mentioned
specifically.
Once 	again, 	Whitson 	had 	legitimate 	concerns 	about 	McCurdy's
conduct 	regarding 	the 	use 	of 	the 	write-in 	procedure. 	Mccurdy
had 	apparently 	abused 	the 	procedure 	to 	the 	extent 	that 	he 	drew
Whitson's 	attention. 	Whitson, 	in 	turn, 	communicated 	this
problem 	to 	Trujillo 	via 	the 	memo. 	There 	is 	nothing 	improper 	in
this 	action. 	An 	employee 	is 	not 	insulated 	from 	such 	attention
and 	even 	eventually 	from 	appropriate 	corrective 	action 	because
he 	has 	engaged 	in 	protected 	activity.
With 	regard 	to 	his 	comment 	about 	substitutions 	in 	paragraph
"e," 	Whitson 	described 	the 	problem 	as 	follows:
The 	problem was 	that 	if 	most 	of 	the
substitution 	focused 	on 	a 	few 	people, 	they
could 	then 	be 	[sic] 	quickly 	accumulate 	much
more 	than 	the 	18 	hours 	a 	week 	that 	we 	have
as 	our 	understood 	maximum. 	And 	so, 	there
was 	a 	kind
of 	conflict 	developing 	between, 	on 	the 	one
hand, 	we 	have 	a 	rule 	nobody 	works 	more 	than
half-time 	or 	than 	18 	hours, 	but 	on 	the 	other
hand, 	there 	are 	people 	that, 	through
substitution, 	are 	able 	to 	work 	quite 	a 	few
more 	hours. 	There's 	one 	month 	that 	I
remember 	noticing 	that 	a 	woman 	had 	worked,
you 	know, 	35 	hours 	or 	something 	like, 	and
because 	she 	had 	really 	gone 	out 	and 	made 	a
32

big 	effort 	to, 	she 	wanted 	to 	earn 	more 	money
right 	then 	and 	it 	was 	fine. 	Within 	our
rules 	as 	they 	were 	presently 	structure,
[sic] 	that 	was 	acceptable, 	but 	that's 	why 	I
brought 	this 	up 	as 	needing 	better 	guidelines
because 	it 	meant 	that 	effectively, 	we 	didn't
have 	control 	in 	terms 	of 	the 	number 	of 	hours
people 	would 	work 	or 	when 	they 	would 	work
those 	hours, 	that 	there 	was 	a 	great 	deal 	of
sort 	of 	modification 	of 	the 	administrative
decisions 	in 	terms 	of 	the 	actual 	practice
and 	that 	people 	had 	a 	great 	deal 	of 	latitude
to 	design 	their 	own 	schedules 	and 	work 	as
many 	hours 	as 	they 	felt 	they 	wanted 	to.
Whitson 	further 	testified 	about 	potential 	problems
associated 	with 	trying 	to 	monitor 	hours 	under 	the 	then 	current
procedure.
Q. 	were 	these 	subbing 	lists 	and 	subbing
slips 	accessible 	to 	you?
A. 	Yes.
Q. 	So 	you 	could, 	at 	any 	time 	you 	wanted, 	go
in 	and 	look 	at 	them 	and 	find 	out 	how many
hours 	someone 	was 	going 	to 	work 	or 	planning
to 	work 	or 	who 	was 	subbing 	out 	a 	lot 	of
hours, 	something 	such 	as 	that, 	was 	that
possible?
A. 	That 	was 	possible 	if 	I 	were 	to 	monitor
individual 	cases, 	but 	that 	was 	75 	or 	80
employees, 	you 	know, 	to 	keep 	up 	with 	that 	on
a 	daily 	basis 	would 	have 	been 	out 	of 	the
question. 	There 	was 	no 	way 	that 	I 	could
review 	all 	those 	things 	and 	keep 	track, 	week
by 	week, 	of 	how much 	somebody 	was 	working.
And 	the 	only 	time 	it 	would 	come 	to my
attention 	was 	when 	I 	was 	reviewing 	the
budgetary 	statement 	the 	month 	after 	that.
And 	I 	would 	see 	that 	certain 	people 	had
worked, 	you 	know, 	an 	unusual 	number 	of 	hours
that 	last 	month 	and 	I 	had 	been 	totally
unaware 	of 	it.
With 	regard 	to 	substitutions, 	Whitson 	testified 	that 	there
33

had 	been 	numerous 	occasions 	when 	library 	assistants 	II
substituted 	for 	clerks. 	Because 	there 	was 	no 	clear 	rule 	on
substitutions, 	Whitson 	felt 	uneasy 	about 	prohibiting 	them, 	but
he 	perceived 	it 	as 	a 	problem 	nevertheless. 	Thus, 	when 	Trujillo
took 	over, 	Whitson 	felt 	compelled 	to 	call 	this 	situation 	to 	his
attention.
As 	more 	fully 	discussed 	in 	other 	parts 	of 	this 	proposed
decision, 	the 	University 	had 	legitimate 	business 	reasons 	for
making 	changes 	in 	substitutions 	and 	compensation. 	Whitson's
comments 	in 	the 	memo 	to 	Trujillo 	simply 	restate 	some 	of 	these
reasons. 	Therefore, 	they 	cannot 	realistically 	be 	construed 	as
carrying 	an 	unlawful 	motive.
G. 	Release 	Time 	to 	Attend 	an 	Informal 	Conference.
A question 	about 	granting 	release 	time 	to 	union
representatives 	to 	attend 	an 	informal 	conference 	arose 	shortly
after 	the 	informal 	conference 	in 	SF-CE-39-H. 	Koyama 	was 	unsure
as 	to 	whether 	Mccurdy 	and 	Donato 	claimed 	release 	time 	to
attend, 	so 	she 	wrote 	Whitson 	a 	memo 	asking 	him 	to 	"discretely"
determine 	if 	these 	two 	employees 	clocked 	in 	on 	the 	day of 	the
conference. 	No 	evidence 	was 	presented 	to 	show what, 	if
anything, 	was 	done 	about 	the 	time 	issue 	after 	Whitson 	checked
on 	it. 	Nor 	was 	any 	evidence 	presented 	to 	show 	that 	Koyama's
actions 	were 	discriminatory.
Mccurdy 	obtained 	a 	copy 	of 	the 	memo. 	He 	contended 	at 	the
hearing 	that 	checking 	the 	records 	evidenced 	an 	unlawful
motive. 	In 	the 	alternative, 	according 	to 	Mccurdy, 	if 	the
34

records 	were 	to 	be 	checked 	at 	all, 	it 	should 	not 	have 	been 	done
"discretely," 	but 	rather 	he 	and 	Donato 	should 	have 	been
confronted 	directly~ 	by 	acting 	discretely, 	library officials
evidenced 	an 	unlawful 	motive.
CSEA's 	assertions 	about 	Koyama's 	memo 	really 	stretch 	the
point. 	Under 	the 	circumstances, 	I 	find 	that 	the 	memo
represented 	nothing 	more 	than 	a 	legitimate 	attempt 	by 	a 	manager
to 	check 	on 	the 	time 	of 	two 	employees 	for 	whom 	she 	was
responsible. 	She 	even 	had 	a 	right 	to 	do 	it 	"discretely." 	And
the 	fact 	that 	the 	time 	was 	spent 	in 	an 	informal 	conference 	is
of 	no 	consequence, 	for 	it 	has 	been 	established 	that 	there 	is 	no
absolute 	right 	to 	paid 	release 	time 	to 	attend 	such 	a
conference. 	Regents 	of 	University of 	California 	(Berkeley)
(12/22/81) 	PERB 	Decision No. 	189-H.
H. 	Testimony 	of 	Sharon 	Samek.
In 	its 	brief, 	Charging 	Party points 	to 	the 	testimony 	of
Sharon 	Samek 	to 	support 	its 	assertion 	that 	library officials
harbored 	an 	unlawful 	motive 	and 	retaliated 	against 	employees
for 	engaging 	in 	protected 	activity. 	First, 	CSEA cites 	events
during 	the 	Kathy 	Gurvis 	reclassification 	complaint, 	arguing
that 	Gurvis 	was 	demoted 	and 	the 	grievance 	denied 	after 	she
sought 	union 	representation 	by Samek. 	In 	fact, 	Gurvis' 	claim
was 	denied, 	but 	the 	mere 	denial 	of 	a 	reclassification 	attempt
hardly 	constitutes 	evidence 	of 	an 	unlawful 	motive. 	Also,
Gurvis 	was 	not 	demoted. 	She 	was 	simply 	told 	to 	stop
35

keypunching 	because 	she 	was 	not 	classified 	as 	a 	keypuncher,
and, 	if 	she 	continued 	to 	do 	key 	punching 	she 	would 	not 	be 	paid
for 	it, 	but 	rather 	would 	be 	paid 	at 	the 	lower 	rate 	applicable
to 	the 	classification 	she 	actually 	held. 	Thus, 	the 	contention
that 	Gurvis 	was 	demoted 	is 	a 	bit 	strained.
CSEA also 	claims 	that 	library officials 	bypassed 	the 	union
and 	attempted 	to 	deal 	directly 	with 	Gurvis 	during 	her
grievance. 	Management 	representatives 	did 	make 	a 	few 	attempts
to 	contact 	Gurvis 	at 	the 	beginning 	of 	the 	case 	and 	again 	at
about 	the 	time 	the 	matter 	was 	coming 	to 	a 	close 	to 	ask 	if 	she
would 	assist 	in 	training 	her 	replacement. 	It 	appears 	that 	the
employer 	met 	with 	CSEA and 	Gurvis 	on 	several 	occasions 	and 	the
matter 	was 	eventually 	resolved. 	The 	evidence 	shows 	only 	that
library 	representatives 	made 	a 	few 	routine 	job-related 	contacts
with 	Gurvis 	and 	did 	not 	persist 	in 	attempting 	to 	deal 	with 	her
on 	an 	ongoing 	basis 	to 	the 	detriment 	of 	CSEA. 	The 	contacts
appeared 	harmless. 	Under 	these 	circumstances, 	I 	conclude 	that
the 	University's 	conduct 	was 	not 	improper 	and 	decline 	to 	infer
an 	unlawful 	motive 	from 	these 	events.
To 	show 	unlawful 	motive, 	CSEA next 	asserts 	that 	Samek, 	a
CSEA 	activist, 	received 	only 	a 	"satisfactory" 	evaluation which
contained 	"disparaging" 	remarks; 	the 	evaluation 	was 	prepared 	by
a 	supervisor, 	Hans 	Franke, 	with 	whom 	she 	had 	little 	contact 	and
should 	have 	been 	prepared 	by 	a 	student 	supervisor; 	and, 	after 	a
meeting, 	Franke 	wrote 	additional 	comments 	on 	the 	evaluation 	and
36

Whitson 	attached 	a 	letter 	to 	it. 	These 	facts, 	concludes 	the
CSEA brief, 	add 	up 	to 	unlawful 	retaliation. 	What 	the 	brief
does 	not 	point 	out 	is 	that 	Samek 	eventually 	grieved 	the
evaluation. 	As 	part 	of 	the 	resolution 	of 	the 	grievance, 	a 	new
evaluation 	was 	prepared 	by Whitson 	and 	his 	first 	letter 	and 	all
derogatory 	information 	removed 	from 	her 	file. 	Samek 	was
satisfied 	with 	the 	second 	evaluation, 	but 	continued 	to 	feel 	it
was 	more 	appropriate 	for 	a 	student 	supervisor, 	rather 	than
Whitson, 	who 	was 	head 	of 	circulation, 	to 	prepare 	the
evaluation. 	Moreover, 	the 	record 	does 	not 	contain 	sufficient
evidence 	to 	support 	the 	conclusion 	sought 	by 	CSEA. 	Necessary
information, 	such 	as 	the 	grieved 	evaluation, 	was 	not
presented. 	Past 	evaluations 	of 	Samek 	or 	of 	other 	employees
were 	not 	presented 	for 	comparison 	purposes. 	S~ecifics 	about
the 	contents 	of 	the 	first 	evaluation 	or 	about 	the 	comments 	in
Whitson's 	letter 	were 	not 	presented. 	Conclusory 	statements
which 	show 	no 	more 	than 	Samek 	was 	not 	happy 	with 	the 	first
evaluation 	or 	the 	fact 	that 	Franke, 	rather 	than 	a 	student
employee, 	prepared 	it 	cannot 	support 	the 	conclusion CSEA
seeks.20 	Even 	if 	Franke 	acted 	out 	of 	turn 	when 	he 	evaluated
20samek 	seemed 	to 	be 	especially 	unhappy 	about 	the 	fact
that 	the 	evaluation 	was, 	in 	her 	view, 	poorly 	written 	and
contained 	grammatical 	and 	spelling 	errors. 	She 	claimed 	that
other 	employees 	who 	had 	earlier 	circulated 	a 	petition 	about
evaluations 	had 	similar 	mistakes 	on 	their 	evaluations, 	but
37

Samek, 	this 	fact, 	standing 	alone, 	is 	of 	little 	probative 	value
in 	showing 	that 	an 	unlawful 	motive 	was 	present 	in 	the 	library.
And 	the 	fact 	that 	the 	evaluation 	was 	later 	redone 	to 	her
satisfaction 	and 	Samek's 	file 	expunged 	of 	all 	derogatory
information 	hardly 	adds 	to 	the 	CSEA position.
The 	last 	piece 	of 	Samek's 	testimony 	advanced 	by CSEA 	in
support 	of 	its 	claim of 	unlawful 	motive 	involves 	her
unsuccessful 	applications 	to 	vacant 	positions 	in 	1981. 	She
applied 	for 	several 	positions, 	but 	received 	only one
interview.21 	Regarding 	the 	other 	positions, 	she 	received
what 	she 	described 	as 	untimely 	rejection 	notices, 	usually 	about
one 	month 	after 	applying, 	stating 	that 	she 	was 	not 	qualified
for 	the 	slot.22 	Samek 	filed 	grievances 	on 	all 	these
employees 	who 	did 	not 	assist 	with 	the 	petition 	received
evaluations 	which 	did 	not 	include 	similar 	mistakes. 	No
supporting 	evidence 	was 	presented 	to 	support 	her 	conclusory
claim of 	disparate 	treatment.
21The 	record 	is 	unclear 	as 	to 	exactly 	how many 	positions
Samek 	applied 	for. 	It 	appears, 	however, 	that 	it 	was
approximately 	seven. 	Further, 	at 	the 	time 	she 	applied 	for
these 	positions 	in 	1981, 	she 	worked 	at 	the 	Institute 	of
Industrial 	Relations, 	having 	left 	Moffitt 	in 	1980.
22Although 	Charging 	Party 	raises 	the 	timeliness 	issue 	in
its 	brief, 	at 	the 	hearing 	Charging 	Party 	expressly 	stated 	that
timeliness 	was 	not 	an 	issue. 	(TR:Vol.I, 	p. 	114.) 	In 	any 	event,
no 	unlawful 	motive 	can 	be 	inferred 	from 	Samek's 	testimony
regarding 	timeliness. 	She 	conceded 	on 	cross-examination 	that
there 	is 	no 	set 	time-table 	to 	receive 	a 	rejection, 	and 	actual
receipt 	varies 	on 	a 	case-by-case 	basis.
38

rejections. 	None 	of 	the 	grievances 	were 	finally 	resolved 	at
the 	time 	of 	her 	testimony.23
The 	Charging 	Party has 	failed 	to 	produce 	sufficient
evidence 	to 	support 	its 	conclusory 	claim 	that 	Samek's
unsuccessful 	attempts 	to 	secure 	another 	position 	add 	up 	to 	an
unlawful 	motive 	or 	retaliation. 	And 	the 	CSEA 	argument 	gets
even 	weaker 	when 	one 	considers 	that 	Samek, 	after 	only 	about
seven 	attempts, 	was 	eventually 	selected 	for 	a 	position 	in 	the
Institute 	of 	Industrial 	Relations, 	thus 	undermining 	any
argument 	that 	she 	was 	being 	systematically 	rejected 	because 	of
her 	union 	activity.
ISSUES
1. 	Whether 	the 	University 	interfered 	with 	protected 	rights
and/or 	discriminated 	against 	employees 	who 	had 	engaged 	in
protected 	activity 	by making 	changes 	in 	hours, 	the 	substitution
procedure, 	compensation 	while 	substituting, 	or 	length 	of
appointments?
2. 	Whether 	the 	University 	breached 	its 	obligation 	to 	meet
and 	discuss 	changes 	in 	working 	conditions 	by 	switching 	from
indefinite 	to 	definite 	appointments 	in 	the 	General 	Library?
23Refusal 	to 	process 	her 	grievances 	and 	nonselection 	is
the 	subject 	of 	another 	unfair 	practice 	charge.
39

DISCUSSION
A. 	Introduction.
Section 	357l(a) 	of 	the 	Act 	prohibits 	interference 	with
protected 	activity 	and 	discriminatory 	action 	against 	an
employee 	for 	engaging 	in 	conduct 	protected 	by 	the 	HEERA
including,
••• 	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. 	(Sec. 	3565.)
In 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB
Decision 	No. 	89, 	the 	Board 	set 	forth 	the 	test 	for 	determining
when 	employer 	actions 	interfere 	with 	the 	rights 	of 	employees
under 	the 	Act. 	That 	test 	is 	summarized 	as 	follows. 	Where
there 	is 	a 	nexus 	between 	the 	employer's 	acts 	and 	the 	exercise
of 	employee 	rights, 	a 	prima 	facie 	case 	is 	established 	upon 	a
showing 	that 	those 	acts 	resulted 	in 	some 	harm 	to 	the 	employee's
rights. 	If 	the 	employer 	offers 	operational 	necessity 	in
explanation 	of 	its 	conduct, 	the 	competing 	interests 	of 	the
parties 	are 	balanced 	and 	the 	issue 	resolved 	accordingly. 	If
the 	employer's 	acts 	are 	inherently 	destructive 	of 	employee
rights; 	however, 	those 	acts 	can 	be 	exonerated 	only 	upon 	a
showing 	that 	they 	were 	the 	result 	of 	circumstances 	beyond 	the
employer's 	control 	and 	no 	alternative 	course 	of 	action was
available. 	In 	any 	event, 	the 	charge 	will 	be 	sustained 	if
unlawful 	intent 	is 	established 	either 	affirmatively 	or 	by
40

inference 	from 	the 	record. 	Under 	this 	test, 	unlawful 	motive 	is
not 	necessary 	to 	sustain 	an 	interference 	charge. 	See 	also
Santa Monica 	Community College 	District 	(9/21/79) 	PERB
Decision 	No. 	103.
Subsequently, 	in 	Novato 	Unified 	School 	District 	(4/30/82)
PERB 	Decision 	No. 	210, 	the 	Board 	clarified 	Carlsbad 	by 	setting
forth 	the 	standard 	by 	which 	charges 	alleging 	discriminatory
conduct 	under 	section 	357l(a) 	are 	to 	be 	decided. 	The 	Board
summarized 	its 	test 	in 	a 	decision 	under 	HEERA 	issued 	the 	same
day 	as 	Novato:
••• 	a 	party 	alleging 	a 	violation 	••• 	has
the 	burden 	of 	making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was 	a 	"motivating 	factor" 	in 	the 	employer's
decision 	to 	engage 	in 	the 	conduct 	of 	which
the 	employee 	complains. 	Once 	this 	is
established, 	the 	burden 	shifts 	to 	the
employer 	to 	demonstrate 	that 	it 	would 	have
taken 	the 	same 	action 	even 	in 	the 	absence 	of
protected 	conduct. 	As 	noted 	in 	Novato, 	this
shift 	in 	the 	burden 	of 	producing 	evidence
must 	operate 	consistently 	with 	the 	charging
party's 	obligation 	to 	establish 	an 	unfair
practice 	by 	the 	preponderance 	of 	the
evidence. 	(California 	State 	University,
Sacramento 	(4/30/82) 	PERB 	Decision 	No. 	211-H
at 	pp • 	13 -14 • )
The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with 	precedent
in 	California 	and 	under 	the 	National 	Labor 	Relations 	Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to 	weigh 	both 	direct 	and
circumstantial 	evidence 	in 	order 	to 	determine 	whether 	an 	action
would 	not 	have 	been 	taken 	against 	an 	employee 	but 	for 	the
41

exercise 	of 	protected 	rights. 	See, 	e.g., 	Martori 	Brothers
Distributors 	v. 	Agricultural 	Labor 	Relations 	Bd. 	(1981)
29 	Cal.3d 	721, 	729-730; 	Wright 	Line, 	Inc. 	(1980) 	251 	NLRB 	150
[105 	LRRM 	1169) 	enf., 	in 	part, 	(1st 	Cir. 	1981) 	662 	F.2d 	899
[108 	LRRM 	2513].24
Hence, 	assuming 	a 	prima 	facie 	case 	is 	presented, 	an
employer 	carries 	the 	burden 	of 	producing 	evidence 	that 	the
action 	"would 	have 	occurred 	in 	any 	event." 	Martori 	Brothers
Distributors 	v. 	Agricultural 	Labor 	Relations 	Bd., 	supra,
29 	Cal.3d 	at 	730. 	Once 	employer 	misconduct 	is 	demonstrated,
the 	employer's 	action,
••• should 	not 	be 	deemed 	an 	unfair 	labor
practice 	unless 	the 	Board 	determines 	that
the 	employee 	would 	have 	been 	retained 	"but
for" 	his 	union 	membership 	or 	his 	performance
of 	other 	protected 	activities. 	(Ibid.)
The 	distinction 	between 	"interference" 	and 	"discrimination"
cases 	is 	often 	blurred. 	Discrimination 	against 	employees 	for
engaging 	in 	protected 	activity 	certainly 	interferes 	with 	the
right 	of 	employees 	to 	form, 	join 	and 	participate 	in 	activities
of 	employee 	organizations. 	Thus, 	the 	facts 	of 	this 	case 	lend
24The 	construction 	of 	similar 	or 	identical 	prov1s1ons 	of
the 	NLRA, 	as 	amended, 	29 	u.s.c. 	151 	et 	seq., 	may 	be 	used 	to
guide 	interpretation 	of 	the EERA. 	See, 	e.g., 	San 	Diego
Teachers 	Assn. 	v. 	Superior 	Court 	(1979) 	12 	Cal.3d 	1, 	12-13;
Fire 	Fighters 	Union 	v. 	Cit1 of Vallejo 	(1974) 	12 	Cal.3d 	608,
616. 	Compare 	section 	3571 	a) 	of 	the 	Act 	with 	section 	8(a) 	(3)
of 	the 	NLRA, 	also 	prohibiting 	discrimination 	for 	the 	exercise
of 	protected 	rights.
42

themselves 	to 	either 	a 	Carlsbad 	or 	a 	Novato 	analysis. 	Coast
Community College 	District 	(10/15/82) 	PERB 	Decision 	No. 	251.
Interference.
Assuming 	a 	nexus 	exists 	between 	the 	protected 	activity 	and
the 	complained-of 	conduct, 	the 	record 	indicates 	that 	the
University's 	actions 	tended 	to 	cause 	at 	most 	slight 	harm 	to
employee 	rights 	under 	the 	Act.25 	Employees 	in 	Moffitt
Library 	had 	engaged 	in 	a 	considerable 	amount 	of 	protected
25csEA argues 	in 	its 	brief 	that 	the 	switch 	to 	definite
appointments 	may 	result 	in 	new 	hires 	never 	becoming 	eligible
for 	certain 	grievance 	rights 	because 	they 	will 	never 	have
"thirteen 	consecutive 	months" 	in 	a 	"pay 	status," 	a 	prerequisite
to 	acquiring 	such 	rights 	under 	the 	SPP 	section 	280.4. 	CSEA
also 	argues 	that 	acquired 	grievance 	rights 	will 	be 	lost 	under
the 	definite 	appointment 	scheme 	because 	SPP 	section 	280.4
provides 	that 	eligibility 	continues 	only 	until 	there 	is 	a
"break 	in 	service," 	which 	is 	defined 	by 	the 	SPP 	as 	"any
separation" 	from 	employment. 	Under 	this 	argument, 	the 	end 	of 	a
definite 	appointment 	signifies 	a 	break 	in 	service, 	even 	if 	the
employee 	is 	rehired 	the 	next 	day. 	The 	University 	argues 	in 	its
brief 	that, 	regardless 	of 	the 	type 	of 	appointment, 	a
casual/restricted 	employee 	whose 	work 	was 	unsatisfactory could
be 	terminated 	without 	the 	"formalities 	of 	civil 	service." 	The
University's 	argument 	is 	as 	follows. 	Under 	SPP 	section 	720
casual/restricted 	employees 	are 	the 	first 	to 	be 	reviewed 	for
purposes 	of 	"termination" 	when 	the 	"lack 	of 	funds 	or 	lack 	of
work 	necessitates 	a 	decrease 	in 	staffing 	levels." 	Under 	SPP
section 	730, 	casual/restricted 	employees 	are 	entitled, 	among
other 	things, 	to 	a 	warning 	and 	a 	written 	notice 	before 	being
"released" 	for 	"unsatisfactory 	performance 	or 	lack 	of
suitability 	for 	University 	employment." 	SPP 	section 	740
provides 	a 	procedure 	for 	"dismissal" 	of 	regular 	status
employees, 	and 	SPP 	section 	280.2(b), 	scope 	of 	the 	grievance
procedure, 	states 	that 	"dismissals" 	may 	be 	grieved. 	That
section 	says 	nothing 	about 	being 	"released" 	or 	"terminated."
Therefore, 	argues 	the 	University, 	the 	section 	280 	grievance
procedure 	is 	not 	applicable 	to 	casual/restricted 	employees
because 	they 	are 	not 	"dismissed," 	but 	rather 	are 	either
43

activity 	during 	the 	period 	leading 	up 	to 	the 	complained 	of
changes. 	Union 	membership 	increased 	and 	there 	were 	several
employees 	who 	became 	active 	in 	the 	union 	in 	addition 	to 	simply
joining. 	It 	is 	therefore 	true 	that 	the 	changes 	affected 	a
large 	number 	of 	CSEA members 	and 	activists. 	Also, 	the 	nature
of 	the 	changes 	was 	significant. 	Hours 	were 	cut 	back 	and
modifications 	in 	substitutions 	and 	compensation when
substituting 	under 	certain 	situations 	were 	made. 	Appointments
were 	switched 	from 	indefinite 	to 	definite 	status. 	Coming 	on
the 	heels 	of 	the 	settlement 	in 	SF-CE-39-H 	and 	other 	protected
activity, 	the 	University's 	actions 	were 	of 	the 	kind 	which 	tend
to 	chill 	the 	exercise 	of 	protected 	activity, 	thus 	causing
slight 	harm 	to 	employee 	rights.26 	Having 	reached 	this
conclusion, 	I 	now 	turn 	to 	the 	University's 	reasons 	for 	its
actions.
"terminated" 	under 	section 	720 	or 	"released" 	under 	SPP
section 	730. 	Both 	parties 	rely 	exclusively on 	selected
portions 	of 	the 	SPP 	to 	support 	their 	respective 	positions. 	The
SPP 	cannot 	be 	interpreted 	in 	a 	vacuum. 	The 	record 	is 	almost
totally 	devoid 	of 	evidence 	which 	would 	shed 	light 	on 	the
meaning 	of 	the 	terms 	in 	the 	SPP 	relied 	on 	by 	the 	parties.
Therefore, 	I 	am 	unable 	to 	render 	a 	decision 	that 	the 	change 	in
appointments 	constitutes 	more 	than 	slight 	harm 	to 	CSEA members
and 	activists, 	especially 	given 	the 	availability of 	other 	means
of 	review 	under 	the 	SPP. 	CSEA has 	simply 	not 	proved 	that 	the
grievance 	rights 	have 	been 	limited.
26To 	show 	actual 	harm 	to 	employee 	rights 	in 	Moffitt
Library, 	CSEA points 	to 	the 	fact 	that 	union 	membership 	rose 	in
1980 	and 	declined 	in 	1981, 	as 	did 	employee 	interest 	and 	overall
representational 	activity. 	Ercolini, 	a 	CSEA witness, 	gave 	the
following 	testimony 	about 	CSEA membership 	in Moffitt. 	There
44

are 	about 	80-90 	employees 	in 	Moffitt. 	During 	the 	period
October 	to 	December 	1980 	about 	20-25 	employees 	joined
CSEA. 	By 	December 	1980 	there 	were 	about 	40-45 	CSEA members 	in
Moffitt. 	As 	of 	June 	1, 	1981, 	CSEA membership 	had 	increased 	to
about 	60-65. 	About 	10-15 	new members 	were 	signed 	up 	between
October 	and 	December 	1981, 	but 	as 	of 	December 	1981 CSEA had
about 	40-45 	members. 	While 	it 	may 	be 	argued 	that 	this
information 	indicates 	a 	correlation 	between 	the 	University's
actions 	and 	the 	decline 	in 	CSEA membership, 	there 	are 	other
factors 	which 	might 	lead 	one 	to 	question 	that 	the 	changes 	in
working 	conditions 	had 	anything 	to 	do 	with 	this 	decline.
Even 	accepting 	that 	some 	decline 	in 	union 	activity occurred
simultaneoulsy 	with 	the 	employer's 	actions, 	under 	the 	record
developed 	here 	timing 	alone 	is 	insufficient 	for 	Charging 	Party
to 	sustain 	its 	burden 	of 	showing 	actual 	harm. 	Next, 	it 	does
not 	necessarily 	follow 	that 	the 	University's 	actions 	caused 	the
decline 	in 	union 	interest. 	There 	are 	other 	reasons, 	equally
logical 	and 	persuasive, 	and 	unrelated 	to 	the 	University's
actions, 	for 	this 	decline. 	There 	may 	have 	been 	a 	lull 	in
employee 	activity 	between 	the 	spring 	and 	fall 	quarters 	due 	to
summer 	vacation 	and 	the 	fact 	that 	fewer 	numbers 	of 	student
employees 	were 	employed 	at 	the 	library. 	During 	the 	summer
sessions 	in 	1981 	there 	were 	approximately 	32 	casual 	restricted
employees 	working 	at 	Moffitt, 	whereas 	about 	60-70 	employees
worked 	there 	during 	normal 	periods. 	In 	fact, 	CSEA complained
throughout 	the 	summer 	meetings 	and 	at 	the 	hearing 	about 	the
University's 	decision 	to 	conduct 	these 	meetings 	during 	a 	period
The 	University 	had 	valid 	business 	reasons 	for 	making 	the
changes. 	There 	is 	no 	doubt 	that 	Koyama 	wanted 	to 	get 	control
of 	the 	operation 	in 	Moffitt. 	Upon 	taking 	over 	as 	head
librarian, 	she 	immediately 	concluded 	that 	employees 	had 	as
much, 	if 	not 	more, 	of 	a 	decision-making 	role 	as 	management
representatives 	on 	matters 	which 	are 	traditionally 	left 	to 	the
employer. 	That 	she 	sought 	to 	develop 	a 	more 	efficient
operation 	and 	to 	exercise 	her 	managerial 	authority 	in making
changes 	does 	not 	automatically 	translate 	into 	unlawful 	activity.
45

when 	many 	union 	members 	and/or 	employees 	were 	not 	available 	to
participate 	in 	the 	process. 	This 	complaint 	indirectly 	concedes
that 	the 	workforce 	was 	lighter 	during 	the 	summer. 	There 	is 	a
fairly 	good 	chance 	that 	a 	substantially 	reduced 	workforce 	might
generate 	less 	activity. 	Further, 	some 	students 	may 	have
graduated 	or 	permanently 	moved 	on 	for 	other 	reasons. 	According
to Ercolini, 	there 	are 	in 	fact 	fewer 	employees 	now 	employed 	in
Moffitt 	than 	there 	were 	in 	1980 	when 	CSEA membership 	began 	to
increase. 	In 	1981 	when 	CSEA membership 	began 	to 	decline, 	there
were 	approximately 	15 	employees 	who 	were 	known 	to 	have 	left 	the
CSEA membership 	rolls 	because 	they 	ceased 	working 	at 	Moffitt.
And, 	given 	the 	temporary 	nature 	of 	the 	student 	workforce, 	this
number 	may 	have 	been 	much 	higher. 	Despite 	this, 	by Ercolini's
own 	admission, 	CSEA 	signed 	up 	10-15 	new members 	between 	October
and 	December 	1981, 	immediately 	following 	implementation 	of 	the
complained 	of 	changes, 	thus 	suggesting 	employees 	at 	that 	time
were 	responsive 	to 	CSEA. 	Lastly, 	as 	conceded 	by 	Sharon 	Samek,
a 	CSEA witness, 	union 	activity may 	ebb 	and 	flow 	for 	a 	variety
of 	reasons, 	all 	unrelated 	to 	the 	University's 	actions 	here, 	and
sometimes 	without 	apparent 	explanation. 	It 	follows 	that,
during 	certain 	periods, 	some 	activity might 	become 	the 	center
of 	attention, 	while 	other 	activity 	might 	subside. 	During 	the
summer 	of 	1981, 	this 	is 	precisely what 	happened. 	The 	parties
were 	involved 	in 	intense 	meet 	and 	discuss 	sessions 	which 	were
time-consuming 	and 	the 	focus 	of 	the 	attention 	of 	employees 	who
were 	on 	the 	payroll 	at 	that 	time. 	SF-CE-39-H 	and 	SF-CE-56-H
also 	represented 	a 	lot 	of 	activity 	in 	1981 	and 	1982. 	It 	is
not, 	therefore, 	entirely 	accurate 	to 	say 	that 	union 	activity
slacked 	off 	during 	1981. 	With 	respect 	to 	the 	General 	Library,
CSEA presented 	no 	credible 	evidence 	to 	show 	that 	employees
there 	suffered 	actual 	harm.
Koyama 	had 	concerns 	about 	the 	budget. 	In 	the 	face 	of 	a
$189,000 	overrun, 	she 	decided 	to 	reduce 	costs 	by 	limiting 	hours
to 	less 	than 	20 	per 	week, 	thus 	lowering 	the 	amount 	she 	would
have 	to 	pay 	out 	of 	the 	General 	Assistance 	fund 	for 	benefits
accrued 	by 	employees 	who 	worked 	more 	than 	20 	hours 	per 	week.
This, 	in 	turn, 	required 	that 	she 	limit 	substitutions 	so 	that
employees 	would 	not 	go 	over 	the 	20 	hour 	limit 	via 	the
46

substitution 	route.27 	Additionally, 	these 	changes 	brought
Moffitt 	into 	conformance 	with 	what 	Koyama 	understood 	to 	be 	the
practice 	in 	the 	General 	Library. 	The 	related 	change 	regarding
compensation 	for 	substitutes 	was 	also 	motivated 	by 	budgetary
reasons. 	Koyama 	sought 	to 	pay 	salaries 	only 	in 	that 	amount
which 	had 	been 	budgeted 	to 	accomplish 	the 	work. 	Thus, 	higher
paid 	employees 	would 	be 	paid 	at 	lower 	rates 	when 	substituting
for 	employees 	who 	were 	scheduled 	to 	do 	the 	same 	work 	at 	the
lower 	rate.
Furthermore, 	Koyama 	had 	legitimate 	concerns 	about 	spreading
the 	available 	number 	of 	hours 	around 	to 	the 	greatest 	number 	of
employees 	possible. 	In 	view 	of 	the 	limited 	state 	and 	federal
money 	for 	students, 	she 	reasoned, 	employing 	more 	employees
would 	satisfy 	the 	University's 	overall 	goals 	as 	they 	relate 	to
the 	academic 	and 	employment 	needs 	of 	students. 	Koyama 	wanted
the 	flexibility 	to 	distribute 	hours 	to 	meet 	these 	goals.
With 	respect 	to 	the 	switch 	to 	definite 	appointments, 	the
University 	took 	steps 	to 	demonstrate 	to 	employees 	that 	it 	had
the 	authority 	and 	flexibility 	to 	determine 	whether 	to 	renew or
not 	renew 	an 	appointment 	or 	to 	cut 	back 	on 	the 	hours 	of
~
27Also, 	Whitson 	testified 	that 	monitoring 	the 	former
substitution 	system 	on 	a 	daily 	basis 	would 	have 	been 	"out of
the 	question" 	as 	overly 	burdensome. 	CSEA never 	produced 	any
credible 	evidence 	to 	rebut 	this 	testimony. 	The 	Charging 	Party
established 	only 	that 	management 	in 	the 	past 	had 	ultimate
control 	over 	the 	process, 	a 	point 	which 	is 	not 	directly 	in
issue 	here.
47

employees 	if 	the 	circumstances 	necessitated 	such 	action. 	In
the 	face 	of 	increasing 	budgetary 	difficulties, 	it 	was 	certainly
understandable 	that 	the 	University 	clarified 	its 	position 	with
respect 	to 	its 	authority 	to 	renew 	an 	appointment. 	And 	it 	seems
that, 	in 	doing 	so, 	it 	acted 	fairly 	towards 	its 	new 	hires 	by
informing 	them 	from 	the 	outset 	that, 	given 	the 	current
financial 	situation, 	employment 	was 	not 	guaranteed. 	In 	fact,
the 	action 	becomes 	all 	the 	more 	understandable 	when 	one
considers 	that 	section 	720 	of 	the 	SPP 	states 	that
casual/restricted 	employees 	are 	the 	first 	to 	be 	considered 	in
the 	event 	of 	a 	staff 	reduction. 	Moreover, 	Koyama 	was 	acting 	to
bring 	the 	library 	into 	conformance 	with 	University 	policy,
which 	states 	that 	casual/restricted 	are 	usually 	established 	as
part-time 	or 	for 	temporary 	periods. 	(SPP 	720.1.)
In 	sum, 	there 	is 	no 	indication 	that 	Koyama's 	thinking
underlying 	the 	changes 	was 	prompted 	by 	anything 	other 	than 	good
faith 	assessments 	of 	what 	needed 	to 	be 	done 	to 	efficiently
manage 	the 	library. 	She 	wanted 	consistency 	with 	library
policy. 	She 	wanted 	more 	control 	over 	the 	operation 	in
Moffitt. 	She 	was 	faced 	with 	a 	financial 	situation 	which, 	she
concluded, 	required 	some 	action. 	To 	reach 	this 	goal 	she
limited 	hours 	and 	modified 	the 	substitution 	rule 	with 	respect
to 	hours 	and 	compensation 	to 	address 	the 	financial 	difficulty.
This 	was 	done 	after 	meeting 	and 	discussing 	the 	subjects 	with
CSEA. 	In 	the 	end, 	CSEA 	activists 	and 	members 	were 	permitted 	to
48

work 	a 	reasonable 	number 	of 	hours 	per 	week 	and 	substitute 	for
co-workers 	within 	certain 	limitations. 	It 	also 	set 	the 	stage
to 	hire 	more 	employees 	and 	spread 	the 	work 	around. 	In
addition, 	the 	switch 	to 	definite 	appointments 	did 	not 	apply 	to
current 	employees. 	It 	was 	made 	to 	more 	accurately 	inform new
hires 	of 	their 	employment 	status 	and 	to 	reemphasize 	the
library's 	authority 	to 	cut 	back 	on 	hours 	in 	the 	face 	of 	a
shortage 	of 	money 	or 	work. 	It 	is 	not 	unusual 	for 	an 	employer
to 	take 	such 	action, 	especially 	in 	times 	of 	financial
difficulties, 	in 	order 	to 	adequately 	staff 	and 	efficiently
manage 	the 	operation.
It 	has 	been 	concluded 	that 	employee 	rights 	were 	slightly
harmed 	by 	the 	University's 	actions. 	The 	University 	has 	come
forward 	with 	valid 	business 	reasons 	for 	its 	actions. 	At 	this
point, 	then, 	the 	competing 	rights 	of 	the 	parties 	must 	be
balanced 	and 	the 	charge 	resolved 	accordingly. 	Carlsbad 	Unified
School 	District, 	supra.
It 	is 	well 	established 	that 	employees 	must 	be 	permitted 	to
participate 	in 	protected 	activity 	in 	an 	environment 	free 	of
coercion 	or 	interference. 	However, 	it 	is 	inescapable 	that
"inherent managerial 	interests" 	coexist 	with 	these 	rights
vested 	by 	statute 	in 	employees. 	Carlsbad 	Unified 	School
District, 	supra, 	p. 	9. 	Even 	though 	the 	actions 	taken 	by 	the
University 	in 	this 	case 	tended 	to 	infringe 	on 	employee 	rights,
they 	were 	nevertheless 	not 	unlawful. 	The 	reasons 	advanced 	by
49

the 	University 	were 	not 	pretextual. 	While 	CSEA might 	not 	agree
with 	the 	justification offered 	by 	the 	University, 	or 	even with
the 	fact 	that 	the 	changes 	needed 	to 	be 	made 	at 	all, 	it 	is
indisputable 	that 	the 	changes 	were 	based 	on 	good 	faith 	business
judgments 	with 	an 	eye 	toward 	running 	the 	library 	operation more
efficiently. 	The 	fact 	that 	they 	were 	made 	in 	a 	setting 	where
the 	union 	was 	active 	does 	not, 	in 	the 	absence 	of 	an 	unlawful
motive, 	render 	them 	any 	less 	valid 	or 	illegal. 	The 	employer
acting 	without 	an 	unlawful 	motive 	must 	be 	permitted 	to make
such 	changes, 	lest 	its 	right 	to 	pursue 	the 	"legitimate
managerial 	interests" 	referred 	to 	in 	Carlsbad 	be 	totally 	eroded.
Therefore, 	it 	is 	concluded 	that 	the 	University's 	reasons
for 	its 	actions 	under 	the 	circumstances 	outweighs 	the 	slight
harm 	done 	to 	employee 	rights.
Discrimination.
Application 	of 	the 	criteria 	established 	in 	Novato
inevitably 	lead 	to 	the 	same 	conclusion. 	The 	argument 	that 	the
University's 	actions 	were 	taken 	because 	of 	union 	activity 	and
that 	they 	had 	a 	heavy 	impact 	on 	CSEA activists 	and 	members 	and
were 	therefore 	discriminatory 	is 	unpersuasive. 	The 	simple
answer 	to 	this 	argument 	is 	that 	there 	happened 	to 	be 	a 	number
of 	CSEA 	activists 	and 	members 	in 	the 	Moffitt 	and 	the 	General
Library 	at 	the 	time 	of 	the 	changes, 	and 	thus 	the 	changes
affected 	them.
Further, 	there 	is 	no 	independent 	evidence 	that 	the 	changes
were 	aimed 	at 	union 	activists, 	or 	were 	otherwise 	connected 	to
50

the 	fact 	that 	employees 	chose 	to 	join CSEA or 	become 	active 	in
the 	union. 	And 	the 	changes 	applied 	equally 	to 	employees 	who
chose 	not 	to 	become 	active 	in 	CSEA I
or 	even 	join 	the 	union.
Also, 	the 	timing 	of 	the 	University's 	actions, 	standing 	alone,
is 	insufficient 	evidence 	from 	which 	to 	infer 	an 	unlawful
motive. 	California 	State 	University, 	Sacramento, 	(4/30/82)
PERB 	Decision 	No. 	211-H.
rn 	sum, 	there 	is 	simply 	no 	concrete 	evidence 	from 	which 	an
unlawful 	motive 	can 	be 	inferred.
But 	even 	accepting 	that 	CSEA has 	established 	unlawful
animus 	on 	the 	part 	of 	library 	representatives, 	the 	question
remains 	under 	Novato 	whether 	the 	University would 	have made 	the
decisions 	to 	change 	certain 	working 	conditions 	in 	any 	event.
This 	question 	must 	be 	answered 	in 	the 	affirmative. 	As 	more
fully 	discussed 	above, 	the 	University 	had 	many 	legitimate 	and
substantial 	business 	reasons 	for 	its 	actions. 	Under 	these
circumstances, 	it 	is 	concluded 	that 	CSEA has 	not 	met 	its 	burden
of 	proving 	that 	but 	for 	an 	unlawful 	animus 	which 	flows 	from 	the
exercise 	of 	protected 	activity 	the 	changes 	would 	not 	have 	been
made.
Refusal 	to 	Meet 	and 	Discuss 	Indefinite 	Apointments
As 	a 	non-exclusive 	representative, 	CSEA has 	the 	right 	to
meet 	and 	discuss 	with 	the 	University 	changes 	in 	matters 	of
"fundamental" 	interest 	to 	employees. 	Professional Engineers 	in
California 	Government 	(3/19/80) 	PERB 	Decision No. 	118-S;
51

California 	State 	University, 	Sacramento 	(4/30/82) 	PERB 	Decision
No. 	211-H. 	A change 	in 	the 	student 	employee 	appointments 	is 	a
matter 	of 	fundamental 	interest 	which 	would 	trigger 	the
obligation 	to 	meet 	and 	discuss. 	However, 	before 	this 	can
occur, 	it 	must 	be 	demonstrated 	by 	CSEA 	that 	a 	change 	was
proposed 	or 	occurred 	which 	affects 	employees. 	Modesto City
Schools 	(3/8/83) 	PERB 	Decision 	No. 	291, 	p. 	13. 	CSEA has 	not
done 	so 	in 	this 	case.
In 	the 	past, 	despite 	the 	fact 	that 	the 	Personal 	Action 	Form
described 	the 	appointment 	as 	"indefinite," 	employment 	from 	year
to 	year 	was 	not 	guaranteed. 	The 	overall 	employment 	situation
was 	evaluated 	each 	year 	and 	individuals 	were 	reemployed 	based
on 	factors 	such 	as 	availability of 	work 	or 	funds, 	job
performance 	and 	seniority. 	As 	it 	turned 	out, 	it 	was 	not
uncommon 	for 	student 	employees 	to 	keep 	their 	appointments 	for
the 	duration 	of 	their 	status 	as 	students. 	But 	this 	was 	due 	to
the 	presence 	of 	other 	external 	factors, 	such 	as 	availability 	of
work 	or 	funds, 	and 	not 	because 	the 	PAF 	carried 	the 	label
"indefinite."
The 	same 	conditions 	exist 	under 	the 	new 	system. 	CSEA's
argument 	that 	the 	change 	affected 	grievance 	rights 	has 	been
rejected 	earlier. 	There 	is 	still 	no 	guarantee 	of 	continuous
employment. 	At 	the 	beginning 	of 	each 	term or 	intersession
employment 	needs 	are 	evaluated, 	presumably 	on 	the 	same 	factors
52

as 	in 	the 	past--availability 	of 	work, 	availability of 	funds,
etc.--and 	staffing 	decisions 	are 	made 	accordingly. 	Contrary 	to
CSEA's 	argument, 	it 	appears 	inconsequential 	that, 	under 	the 	old
system, 	the 	library 	needed 	to 	execute 	no 	new 	forms 	in 	order 	to
continue 	to 	employ 	a 	student, 	while 	under 	the 	new 	system 	the
library 	would 	presumably 	need 	to 	fill 	out 	a 	new 	PAF 	indicating
that 	a 	student 	was 	to 	be 	reemployed 	for 	another 	term 	under 	a
definite 	appointment. 	Moreover, 	there 	is 	no 	indication 	that
these 	decisions 	have 	been 	or 	will 	be 	based 	on 	anything 	but 	the
factors 	cited 	above. 	Further, 	whether 	the 	University 	needs 	or
does 	not 	need 	to 	execute 	a 	new 	PAF 	for 	continuous 	employment
has 	no 	impact 	on 	employees.28
Based 	on 	the 	foregoing, 	I 	conclude 	that 	the 	switch 	from 	the
"indefinite" 	to 	"definite" 	appointments 	in 	the 	General 	Library
did 	not 	constitute 	a 	change 	which 	triggered 	the 	obligation on
the 	part 	of 	the 	University 	to 	give 	notice 	and, 	upon 	request,
meet 	and 	confer 	with 	CSEA. 	At 	most, 	the 	switch 	constituted 	a
paper 	change 	involving 	the 	label 	on 	a 	personnel 	form. 	A
unilateral 	act 	which 	does 	not 	change 	a 	condition 	of 	employment
is 	not 	unlawful. 	Alum 	Rock 	Union Elementary 	School 	District
(6/27/83) 	PERB 	Decision 	No. 	322, 	pp. 	22-23.
28obviously, 	if 	the 	employer 	decides 	not 	to 	reemploy 	an
individual 	or 	group 	of 	individuals 	based 	on 	protected 	activity,
rather 	than 	on 	the 	factors 	cited 	above, 	that 	would 	give 	rise 	to
a 	new 	unfair 	labor 	practice 	charge.
53

Even 	assuming 	that 	the 	switch 	to 	definite 	appointments
amounted 	to 	a 	change 	in 	a 	working 	condition 	which 	was 	subject
to 	the 	meet 	and 	discuss 	requirements 	set 	forth 	in 	PECG, 	the
evidence 	presented 	here 	does 	not 	lead 	one 	to 	the 	conclusion
that 	the 	Act 	has 	been 	violated. 	Whether 	an 	employer 	has
breached 	this 	obligation 	is 	an 	issue 	which 	is 	to 	be 	decided 	on
a 	"case-by-case 	basis." 	Regents 	of 	the 	University 	of
California, 	Lawrence 	Livermore 	National 	Laboratory 	(4/30/82)
PERB 	Decision 	No. 	212-H. 	Under 	the 	PECG principle, 	the
employer 	must 	meet 	and 	discuss 	in 	good 	faith, 	but, 	unlike 	the
employer's 	duty 	to 	meet 	and 	negotiate 	with 	an 	exclusive
representative, 	good 	faith 	requires 	neither 	an 	obligation 	to
reach 	agreement 	nor 	to 	continue 	to 	meet 	until 	impasse. 	Regents
of 	the 	University 	of 	California, 	UCLA 	(12/21/82) 	PERB 	Decision
No. 	267-H, 	p. 	6. 	In 	fact, 	under 	some 	circumstances, 	providing
the 	union 	an 	opportunity 	to 	present 	its 	alternatives 	along 	with
supporting 	rationale 	to 	the 	proposed 	change 	satisfies 	the
obligation. 	See 	State 	of 	California, 	Franchise 	Tax 	Board
(7/29/82) 	PERB 	Decision 	No. 	229-S. 	When 	these 	principles 	are
applied 	to 	the 	instant 	case, 	it 	becomes 	clear 	that 	the
University 	has 	not 	breached 	its 	obligation 	to 	meet 	and 	discuss
the 	change 	in 	appointments 	of 	student 	employees.
CSEA, 	through 	the 	meet 	and 	discuss 	sessions, 	had 	notice 	of
this 	change 	as 	it 	applied 	to 	Moffitt 	at 	least 	by 	September 	3
and 	possibly 	as 	early 	as 	August 	11, 	according 	to 	Mccurdy. 	At
54

the 	September 	3 meeting, 	CSEA presented 	its 	views 	on 	the
subject, 	and 	management 	responded 	with 	its 	rationale 	for 	the
change. 	(Seep. 	11, 	supra.) 	It 	appears 	from 	the 	record 	that
the 	matter 	was 	fully 	explored 	in 	an 	open 	and 	frank 	discussion.
CSEA 	requested 	no 	further 	talks 	on 	the 	subject. 	There 	is 	no
credible 	evidence 	that 	library 	representatives 	acted 	in 	bad
faith, 	nor 	is 	there 	credible 	evidence 	that 	library
representatives 	at 	the 	meeting 	lacked 	the 	authority 	to
meaningfully 	meet 	and 	discuss 	this 	change. 	Koyama 	was 	present
for 	Moffitt, 	and 	Deborah 	Harrington 	was 	there 	from 	the 	office
of 	employee 	relations. 	It 	is 	therefore 	concluded 	that 	the
University 	satisfied 	its 	obligation 	to 	meet 	and 	discuss 	this
change 	as 	it 	applied 	to 	Moffitt 	by 	affording 	CSEA an
opportunity 	to 	meet 	and 	present 	its 	proposals 	and 	rationale
therefor. 	See 	State 	of 	California, 	Franchise 	Tax 	Board, 	supra.
During 	the 	meet 	and 	discuss 	sessions, 	CSEA was 	under 	the
impression 	that 	the 	changes 	under 	discussion 	would 	occur 	only
in 	Moffitt. 	However, 	on 	or 	about 	September 	9, 	Rosenthal 	and
Kane 	decided 	that 	the 	same 	change 	concerning 	appointments
needed 	to 	be 	made 	in 	the 	General 	Library. 	A memo was
circulated 	in 	the 	library 	on 	or 	about 	September 	17 	describing
the 	change 	as 	it 	applied 	to 	the 	General 	Library. 	Mccurdy, 	as 	a
student 	supervisor, 	received 	a 	copy 	of 	the 	memo 	and 	thus 	had
actual 	notice 	of 	the 	change 	in 	the 	General 	Library. 	Also 	at
about 	this 	time, 	the 	University 	began 	to 	hire 	student 	employees
55

under 	definite 	appointments. 	Thus, 	CSEA was 	not 	given 	adequate
advance 	notice 	and 	an 	opportunity 	to 	meet 	and 	discuss 	this
change 	as 	it 	applied 	to 	the 	General 	Library.
Another 	meeting 	was 	held 	on 	October 	1. 	CSEA again
complained 	about 	the 	change 	at 	the 	October 	1 	meeting 	and
amended 	the 	instant 	charge 	shortly 	thereafter 	to 	allege 	a
breach 	of 	the 	obligation 	to 	meet 	and 	discuss 	the 	change, 	a
position 	it 	has 	maintained 	throughout.
It 	is 	arguable 	that 	the 	University, 	by 	not 	affording 	CSEA a
separate 	opportunity 	to 	meet 	and 	discuss 	the 	change 	in 	the
General 	Library, 	technically 	breached 	its 	obligation 	under
PECG. 	However, 	I 	am 	not 	persuaded 	by 	the 	argument. 	Such 	a
decision 	would, 	in 	my 	view, 	elevate 	form 	over 	substance 	and
reach 	a 	conclusion 	contrary 	to 	that 	intended 	by 	PECG 	and 	its
progeny.
The 	appointments 	issue 	was 	fully 	discussed 	as 	it 	applied 	to
Moffitt 	employees. 	CSEA 	raised 	its 	concerns. 	University
representatives, 	at 	least 	one 	of 	which 	was 	from 	the 	office 	of
employee 	relations 	and 	who 	presumably 	had 	the 	authority 	to
speak 	for 	the 	General 	Library 	as 	well 	as 	for 	Moffitt, 	were
present 	at 	the 	discussions. 	They 	responded 	with 	the 	employer's
position. 	There 	has 	been 	no 	evidence 	to 	show 	that 	the
proposals 	or 	alternatives 	advanced 	by 	CSEA on 	behalf 	of 	Moffitt
employees 	did 	not 	apply 	equally 	to 	employees 	in 	the 	General
Library. 	Nor 	has 	there 	been 	any 	indication 	that 	additional
56

arguments 	existed 	and 	needed 	to 	be 	made 	on 	behalf 	of 	employees
in 	the 	General 	Library. 	In 	short, 	the 	parties 	met 	and
discussed 	the 	issue 	but 	the 	University 	was 	not 	persuaded 	by 	the
CSEA arguments.28 	The 	University 	had 	no 	obligation 	to 	agree
with 	the 	CSEA position 	or 	to 	meet 	and 	discuss 	the 	matter 	to
impasse. 	Since 	the 	fall 	term 	was 	about 	to 	begin, 	new 	employees
needed 	to 	be 	hired. 	The 	University, 	having 	already met 	and
discussed 	the 	matter 	once, 	was 	entitled 	to 	take 	steps 	to
implement 	the 	change.
While 	it 	is 	understandable 	that 	the 	CSEA 	representatives
were 	upset 	over 	the 	turn 	of 	events, 	this 	does 	not 	automatically
translate 	into 	a 	breach 	of 	the 	obligation 	to 	meet 	and 	discuss
in 	good 	faith. 	Under 	the 	facts 	of 	this 	case, 	it 	would 	serve 	no
useful 	purpose 	to 	find 	such 	a 	violation 	and 	order 	the 	parties
back 	to 	the 	table 	to meet 	and 	discuss 	a 	change 	that 	has 	already
been 	discussed 	in 	considerable 	detail.
PROPOSED ORDER
Based 	on 	the 	foregoing, 	all 	aspects 	of 	the 	unfair 	practice
charge 	and 	complaint 	are 	hereby ORDERED 	DISMISSED.
28Although 	not 	directly 	addressed 	by 	the 	parties 	in 	their
written 	arguments, 	at 	least 	one 	CSEA concern 	was 	met 	by 	the
University. 	On 	September 	3, 	CSEA 	raised 	the 	concern 	that
library management 	would 	apply 	different 	criteria 	considering
whether 	or 	not 	to 	renew 	a 	definite 	appointee. 	As 	it 	turns 	out,
these 	decisions 	are 	made 	on 	the 	basis 	of 	availability 	of 	work
or 	funds, 	job 	performance 	and 	seniority. 	Whether 	a 	student 	has
-a 	definite 	or 	an 	indefinite 	appointment 	appears 	to 	be
irrelevant.
57

Pursuant 	to 	California 	Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	August 	30, 	1983, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California 	Administrative 	Code 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
August 	30, 	1983, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
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 	concurrently
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.
Dated: 	August 	10, 	1983
Administrative 	Law Judge
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