Regents of the University of California (Lawrence Livermore) * * * OVERRULED IN PART BY The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 1221H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LAWRENCE 	LIVERMORE 	NATIONAL
LABORATORY 	PROTECTIVE 	SERVICE
OFFICERS ASSOCIATION,
Charging 	Party,
v.
THE REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA 	(LAWRENCE 	LIVERMORE
NATIONAL 	LABORATORY),
Respondent.
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) 	Case No. 	SF-CE-421-H
PERB Decision No. 	1221-H
September 	26, 	1997
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Appearances: 	Carroll, 	Burdick & McDonough by Gary M. 	Messing,
Attorney, 	for Lawrence Livermore National 	Laboratory Protective
Service Officers Association; 	Gabriela B. 	Odell, 	Attorney, 	for
The Regents 	of 	the University of 	California 	(Lawrence 	Livermore
National Laboratory).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by The
Regents 	of 	The University of 	California 	(Lawrence 	Livermore
National 	Laboratory) 	(University) 	to a Board administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached). 	In his proposed
decision, 	the ALJ found 	that 	the University violated 	the Higher
Education Employer-Employee Relations Act 	(HEERA) 	section 3571(a)
and 	(c)1 when it 	refused to meet and confer with the Lawrence
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571 	reads, 	in relevant part:
It 	shall 	be unlawful 	for the 	higher education
employer 	to do any of 	the 	following:
* * * OVERRULED IN PART BY The Accelerated Schools (2023) PERB Decision
No. 2855 * * *

Livermore 	National 	Laboratory 	Protective 	Service 	Officers
Association 	(Association) 	over the 	effects 	of 	the University's
decision 	to 	reduce 	the number 	of protective 	service 	officers
(PSOs) 	in the high-security Superblock area of 	the 	Lawrence
Livermore National 	Laboratory 	(Laboratory).
(a) 	Impose 	or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an exclusive 	representative.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	the
University's 	exceptions 	and 	the Association's 	response 	thereto.
The 	Board adopts 	the proposed decision 	insofar as 	it 	holds 	that
the 	University violated HEERA when 	it 	failed and 	refused 	to
negotiate 	over the 	reasonably 	foreseeable 	effects 	of 	the
reduction in staff, 	including the 	change 	in work hours 	of 	PSOs
transferred to positions 	outside 	of 	the 	Superblock. 	The Board
finds, 	however, 	that the University's simultaneous modification
of 	the 	regular workday for 	PSOs 	remaining 	in the 	Superblock was 	a
separate 	and distinct 	decision and not 	a 	reasonably 	foreseeable
effect 	of 	the 	reduction 	in staff. 	Neither the Association's
charge nor 	the 	resulting 	complaint 	refer 	to 	this 	workday
22

modification. 	For the reasons 	set 	forth below, 	the Board
dismisses 	this 	new allegation as 	untimely.
INTRODUCTION
The 	Association 	filed an unfair practice 	charge 	against 	the
University on May 23, 	1995. 	On July 27, 	1995, 	the Board's
general 	counsel 	issued a 	complaint based on that 	charge. 	As
amended, 	the charge and complaint alleged that, 	on
January 5, 	1995, 	the University reduced the number of 	staff
within the 	Superblock by 	transferring a number of 	PSOs 	from the
Superblock to other areas 	of 	the Laboratory. 	The 	charge and
complaint 	further alleged 	that 	the 	University undertook 	this
reduction 	in 	staff without providing 	the Association notice 	or an
opportunity 	to bargain over 	either 	the 	decision or 	the 	effects
thereof. 	During the hearing, 	the Association presented evidence
that 	on January 5, 	1995, 	the University also reduced the 	regular
hours 	of 	work for PSOs 	remaining 	in the 	Superblock.
In his 	proposed decision, 	the ALJ held that 	the University's
decision 	to 	reduce 	the number of 	PSOs 	in 	the Superblock was
nonnegotiable but 	that 	the University violated 	the 	HEERA when 	it
failed and 	refused 	to meet 	and 	confer 	in good 	faith 	over 	the
negotiable effects 	of 	that decision. 	The ALJ ordered the
University 	to meet 	and 	confer with 	the Association 	regarding 	the
effects 	of 	the 	change 	in the number of 	PSOs 	in the Superblock, 	to
reinstate 	the 	eight-and-one-half 	hour workday 	for 	PSOs 	remaining
in the Superblock, 	and to pay PSOs 	remaining in the 	Superblock
full backpay plus 	interest. 	In addition, 	the ALJ ordered a
33

partial 	backpay award 	for 	those 	PSOs 	whose 	hours 	of 	work were
reduced when 	the 	University 	transferred 	them out 	of 	the
Superblock. 	(Transmarine Navigation Corporation 	(1968) 	170 NLRB
389 	[67 LRRM 1419] 	(Transmarine). )2
UNIVERSITY'S 	EXCEPTIONS
The University essentially 	targets 	three portions 	of 	the
ALJ's decision. 	First, 	the University contends 	that 	the ALJ
erred in 	finding that 	it 	refused to bargain over the 	effects 	of
the 	reduction in staff. 	Second, 	the University challenges 	the
ALJ's 	finding 	that 	it 	unilaterally reduced the 	hours 	of 	work 	for
any PSOs. 	Finally, 	the University objects 	to the ALJ's
imposition of 	full 	backpay 	for Superblock 	PSOs.
ASSOCIATION'S 	RESPONSE
The Association 	responds 	that 	the proposed decision 	is
supported by 	the 	evidentiary 	record, 	consistent 	with established
legal authority, 	and serves 	to effectuate the purposes of HEERA.
Specifically, 	the Association contends 	that 	the 	record supports
the 	finding 	that 	the University 	refused to bargain over 	the
effects 	of 	the 	change 	in the number of 	staff. 	The Association
also argues 	that 	the 	change 	in hours 	of work for PSOs 	remaining
in the Superblock, 	although an 	independent violation of 	HEERA,
2A Transmarine 	remedy 	is 	a 	limited backpay award 	that
attempts 	to approximate the parties' 	bargaining positions had
there been no violation. 	(Placentia Unified School 	District
(1986) 	PERB Decision No. 	595 at p. 	11.) 	In short, 	the
Transmarine backpay award begins 	after 	the 	issuance 	of 	a decision
and continues 	during the pendency of 	effects negotiations. 	(Id.
at p. 	13.)
4

was motivated by 	the University's 	decision 	to 	cut 	costs 	and,
therefore, 	part and parcel 	of 	the 	reduction in staff.
DISCUSSION
The 	University 	operates 	the 	Laboratory under a 	contract 	with
the United States Department 	of Energy 	(DOE). 	The Superblock is
a high 	security 	facility 	located within 	the 	Laboratory. 	Prior 	to
January 5, 	1995, 	the University's 	established practice was 	that
PSOs 	assigned 	to 	the 	Superblock had a 	regular workday of 	eight
and one-half hours. 	On January 5, 	1995, 	the University
transferred a number of 	Superblock 	PSOs 	to 	eight-hour positions
outside of 	the Superblock. 	That same day, 	the University reduced
the workday of 	the 	remaining Superblock PSOs 	to 	eight hours.
The ALJ properly held 	that 	the University's 	decision 	to
reduce 	the number of 	PSOs 	in the Superblock was 	outside 	of 	the
scope of 	representation.3 (HEERA section 3562(q);4 Regents of
the University of California 	(1987) 	PERB Decision No. 	640-H at
3Because 	there 	appears 	to be no 	conflict between DOE's
regulations and the HEERA, 	the ALJ's 	supremacy clause analysis,
although accurate, 	is unnecessary.
4HEERA section 3562 provides, 	in relevant part:
(q) 	For purposes of 	the University of
California only, 	"scope of 	representation"
means, 	and is limited to, 	wages, 	hours of
employment, 	and other terms and conditions 	of
employment. 	The scope of 	representation
shall 	not 	include:
(1) 	Consideration of the merits, 	necessity,
or organization of any service, 	activity, 	or
program established by 	law 	or 	resolution 	of
the regents or the directors, 	except 	for the
terms 	and conditions 	of 	employment 	of
employees 	who may be 	affected 	thereby.
55

p. 	20 	(Regents) 	(noting that 	reorganization decisions are within
employer's prerogative).) 	Nonetheless, 	HEERA obligates 	the
University 	to meet 	and 	confer 	over 	the 	reasonably 	foreseeable
effects 	of 	that 	decision to 	the 	extent 	that 	they impact 	the 	terms
and conditions of employment. 	(Id. 	at p. 	17.)
Refusal 	to Meet 	and Confer 	in Good 	Faith
Both University and Association witnesses 	testified 	that 	the
Association 	requested bargaining 	over 	the 	effects 	of 	the
reduction in staff. 	Nonetheless, 	the University contends 	that
the ALJ erred 	in 	finding 	that 	it 	refused to meet 	and 	confer 	in
good faith over those effects. 	In fact, 	the University contends,
the Association 	rebuffed a University offer 	to discuss 	the
effects 	of 	the 	staffing decision. 	The 	record does 	not 	support
the University's 	reading of 	the 	facts.
Although University witnesses 	testified 	that 	they were
willing to discuss 	the effects of 	the reduction in staff, 	an
Association witness 	testified 	that 	the 	University 	refused 	to meet
and 	confer over those 	effects, 	offering 	instead to make a
presentation regarding the history of 	the 	Superblock. 	In
response 	to 	this 	inconsistent 	testimony, 	the ALJ credited the
Association's 	witness. 	The ALJ's 	credibility determination 	is
supported by the 	record and we 	see no 	reason to disturb 	it. 	(See
Los Angeles 	Community College District 	(1995) 	PERB Decision
No. 	1091 at pp. 	9-10 	citing Regents of the University of
California v. 	Public Employment Relations Board 	(1986) 	41 	Cal.3d
601, 	617 	[224 Cal.Rptr. 	631].) 	Once the Association requested
66

bargaining over the effects 	of 	the 	reduction in staff, 	the
University was 	obligated to negotiate 	over all 	of 	the 	reasonably
foreseeable 	effects 	thereof. 	Its presentation on the history of
the Superblock did not meet 	this 	obligation.
Hours 	of Work
In its 	second group of 	exceptions, 	the University contends
that 	the ALJ erred 	in finding 	that 	the University violated 	the
HEERA when 	it 	failed 	to provide 	the Association with notice 	and
an opportunity to meet and confer over 	the 	change 	in hours 	of
work for PSOs. 	In short, 	the University alleges 	that 	the
Association never 	specifically asked 	to bargain 	over 	the 	change
in hours. 	Accordingly, 	the University contends, 	the evidence
regarding 	the 	change 	in hours 	of work was 	a 	complete 	surprise and
the ALJ 	should not 	have made 	any 	findings 	based on 	that 	evidence.
The 	Board does 	not 	require 	that 	a 	request 	to bargain over
the 	effects 	of a 	change 	include a 	laundry list 	of 	all possible
effects 	implicated by the 	change. 	(See Newman-Crows 	Landing
Unified School District 	(1982) 	PERB Decision No. 	223 at p. 	9
(noting 	that 	request 	to bargain need not 	be made 	in any
particular 	form).) 	Once 	the Association requested bargaining
over the effects 	of 	the 	reduction in staff, 	the University was
obligated to negotiate over all 	of 	the 	reasonably 	foreseeable
effects 	of 	that 	change, 	including those effects not 	specifically
mentioned in the request. 	The issue, 	therefore, 	is whether the
change 	in the hours 	of 	either group of 	PSOs was 	a 	reasonably
77

foreseeable 	effect 	of 	the University's 	decision to 	reduce
staffing 	in 	the 	Superblock.
As 	noted above, 	the University reduced the hours 	of work for
two groups 	of 	PSOs. 	The University reduced the 	regular workday
of 	some 	PSOs 	by 	transferring 	them 	from eight 	and 	one-half 	hour
Superblock positions 	to 	eight 	hour positions 	outside 	the
Superblock. 	At 	the 	same 	time, 	the University reduced the regular
workday 	of 	the 	remaining 	Superblock 	PSOs 	by one-half 	hour.
The 	PSOs 	who were 	transferred 	from an eight 	and one-half
hour 	Superblock assignment 	to 	an 	eight 	hour non-Superblock
assignment 	experienced a 	change 	in 	their hours 	of 	work as 	a
direct 	result 	of 	the Superblock staffing 	reduction. 	(See Regents
at p. 	20.) 	For these PSOs, 	the change 	in hours of work was a
reasonably foreseeable, 	and therefore negotiable, 	effect of the
reduction in staff. 	(See e.g., 	Lake Elsinore School District
(1987) 	PERB Decision No. 	646 at p. 	16, 	citing Mt. 	Diablo Unified
School District 	(1983) 	PERB Decision No. 	373.)
The 	situation 	is 	different 	for those 	PSOs who 	remained in
the Superblock. 	It 	is 	true 	that 	these 	PSOs 	experienced a 	change
in their hours 	of work on the 	same date 	on which the University
reduced the 	staff 	in the Superblock. 	Further, 	cost 	concerns
motivated both 	this 	decision and 	the 	University's 	decision 	to
reduce 	the number of Superblock PSOs. 	This 	coincidence of 	time
and motive is 	insufficient, 	however, 	to create a causal 	link
between these 	separate and distinct decisions. 	Accordingly, 	the
University's 	decision to 	reduce 	the hours 	of 	the 	remaining
8

Superblock PSOs 	does 	not 	constitute 	a 	reasonably 	foreseeable
effect 	of 	the decision to 	reduce 	the number of 	PSOs 	assigned to
the Superblock.
As 	the Association contends, 	the University's 	failure to
provide 	notice 	and an opportunity 	to meet 	and 	confer before
reducing 	the workday for the 	remaining Superblock PSOs would, 	if
proven, 	constitute an independent violation of 	the HEERA. 	(HEERA
section 3562(q); 	see San Jacinto Unified School District 	(1994)
PERB Decision No. 	1078, 	proposed decision at pp. 	17-18 	(noting
that 	change in hours of employment is within scope); 	Compton
Unified School District 	(1989) 	PERB Decision No. 	784, 	proposed
decision at p. 	18.) 	However, 	it is undisputed that the change
occurred on January 5, 	1995. 	Because 	the Association did not
raise 	this allegation until 	the February 20, 	1996 hearing, 	the
Board must 	consider the 	timeliness 	of 	this 	new allegation.
HEERA section 	3563.2 	provides 	that 	the 	Board may not 	issue a
complaint 	on 	conduct 	occurring more 	than 	six months prior 	to 	the
filing of a 	charge.5 (California State University 	(1989) 	PERB
Decision No. 	718-H at pp. 	8-9 	(noting that 	six-month time 	limit
is mandatory and jurisdictional).) 	This 	six-month time 	limit
begins 	to 	run as 	soon as 	the 	charging party knew or should have
5HEERA section 3563.2 provides, 	in relevant part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that the board
shall 	not 	issue a 	complaint 	in respect 	of 	any
charge 	based upon an alleged unfair practice
occurring more 	than six months 	prior to 	the
filing of 	the 	charge.
99

known of 	the alleged conduct. 	(Regents 	of 	the University of
California 	(1993) 	PERB Decision No. 	1002-H at p. 	3; 	Tehachapi
Unified School District 	(1993) 	PERB Decision No. 	1024 at p. 	4
(noting 	that 	charging party has 	burden of 	proving 	that 	allegation
is 	timely).)
Absent 	evidence of 	delayed discovery, 	PERB 	could not 	have
issued a 	complaint 	had 	the Association 	filed a 	charge 	regarding
the January 5, 	1995 	reduction in hours on February 20, 	1996.
(HEERA section 3563.2.) 	Likewise, 	the Board could not have
allowed 	the Association 	to 	amend an 	existing 	charge 	or 	complaint
to 	include 	the new allegation on that 	date. 	(California State
University 	(1990) 	PERB Decision No. 	853-H at p. 	7; 	Los Angeles
Unified School District 	(199.4) 	PERB Decision No. 	1041
(Los Angeles), 	dismissal 	letter at pp. 	7-9.) 	The Board must
treat 	a new allegation raised 	for 	the 	first 	time at 	hearing 	the
same way. 	Accordingly, 	the new allegation concerning the 	change
in work hours 	of 	the 	remaining 	Superblock 	PSOs 	is untimely and
must be dismissed. 	(See Regents at p. 	15. )6 Having dismissed
this allegation, 	we need not address 	the University's 	challenge
to 	the proposed 	remedy.
6The 	Board has 	long held that 	new legal 	theories 	relate back
to the 	filing date of the original 	charge. 	(Los Angeles,
dismissal letter at pp. 	7-9; 	Regents at p. 	15.) 	New factual
allegations, 	such as 	the new unilateral 	change allegation in this
case, 	however, 	do not 	relate back to the 	filing of 	the original
charge. 	(Ibid.)
10

CONCLUSION
The Board affirms 	the ALJ's 	conclusion that 	the University-
violated 	the 	HEERA when 	it 	failed and 	refused 	to meet 	and 	confer
with 	the Association over 	the 	reasonably 	foreseeable 	effects 	of
its 	decision to 	reduce 	the number of 	PSOs within the Superblock.
The Board concludes, 	however, 	that 	the University's decision to
reduce 	the 	regular workday of 	PSOs 	remaining within 	the
Superblock was 	a 	separate 	and distinct 	decision and not 	a
reasonably 	foreseeable 	effect 	of 	the 	reduction 	in Superblock
staff. 	Because 	the Association did not 	raise 	this 	allegation
within 	the 	six month 	time 	limit 	set 	forth 	in HEERA section
3563.2, 	the Board finds 	that 	the allegation is untimely and must
be 	dismissed.
ORDER
Upon the 	findings of 	fact, 	conclusions 	of law, 	and the
entire 	record in this 	case, 	it 	is 	found that 	the Regents 	of 	the
University 	of 	California 	(Lawrence 	Livermore National 	Laboratory)
(University) 	violated 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA), 	Government Code section 3571(a) 	and 	(c),
by 	refusing 	to meet 	and 	confer over 	the 	effects 	of 	its 	decision
to 	reduce 	the number of 	staff 	in the 	Superblock.
Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED that
the University and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and refusing 	to meet 	and 	confer with 	the
Lawrence 	Livermore 	National 	Laboratory 	Protective 	Service
11

Officers Association 	(Association) 	about 	the effects 	of 	its
decision to 	change 	the number of 	staff 	in the 	Superblock.
2. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	the Association 	in 	their 	employment 	relations 	with
the 	University.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE HEERA:
1. 	Beginning ten 	(10) 	days 	following the date this
Decision is no longer subject 	to reconsideration, 	pay to officers
who, 	but 	for the University's decision to reduce staffing, 	would
have worked 	in 	the 	Superblock and would have 	earned an additional
one-half 	hour of pay per workday, 	the additional 	pay they would
have earned, 	until: 	(a) 	the date the University bargains to
agreement 	with 	the Association regarding 	the 	effects 	of 	its
decision to 	reduce 	the staffing level within the Superblock; 	or
(b) 	the date 	the University and Association meet 	and confer to
bona fide impasse; 	or 	(c) 	the failure of the Association to
request bargaining within ten 	(10) 	days 	following 	the date 	that
this Decision 	is 	no 	longer 	subject 	to 	reconsideration or the
failure 	of 	the Association 	to 	commence negotiations 	within 	five
(5) 	working days of 	the University's notice of 	its desire to meet
and confer; 	or 	(d) 	the subsequent 	failure of the Association to
meet 	and 	confer 	in good 	faith.
2. 	Within thirty-five 	(35) 	days 	following the date
that 	this Decision is no longer subject to reconsideration, 	post
at 	all work locations where notices 	to employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
12

signed by an authorized agent 	of 	the University. 	Such posting
shall 	be maintained for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be 	taken to 	insure that 	this
Notice is not 	reduced in size, 	defaced, 	altered, 	or covered by
any material.
3. 	Notify the San Francisco Regional 	Director of 	the
Public 	Employment 	Relations 	Board, 	in writing and in accordance
with the director's 	instructions, 	of 	the steps 	that 	the
University has 	taken to 	comply with 	this 	Order,
All 	other aspects 	of 	the 	charge and 	complaint 	are hereby
DISMISSED.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
13

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-421-H,
Lawrence 	Livermore 	National 	Laboratory 	Protective 	Service
Officers Association v. 	The Regents 	of 	the University of
California 	(Lawrence Livermore National 	Laboratory). 	in which all
parties 	had the right 	to participate, 	it has been found that The
Regents 	of 	the University of 	California 	(Lawrence 	Livermore
National 	Laboratory) 	(University) 	violated the Higher Education
Employer-Employee Relations Act 	(HEERA), 	Government Code 	section
3571(a) 	and 	(c). 	The University violated HEERA by refusing to
meet 	and 	confer over the 	effects 	of 	its 	decision to 	reduce 	the
number of 	staff 	in 	the Superblock.
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and 	confer with 	the
Lawrence 	Livermore 	National 	Laboratory 	Protective 	Service
Officers Association 	(Association) 	about 	the effects 	of 	its
decision 	to 	change 	the number of 	staff 	in the 	Superblock.
2. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	the Association 	in 	their 	employment 	relations 	with
the University.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HEERA:
1. 	Beginning ten 	(10) 	days 	following the date this
Decision 	is 	no 	longer subject 	to reconsideration, 	pay to officers
who, 	but 	for the University's decision to reduce staffing, 	would
have 	worked 	in 	the 	Superblock and would have 	earned an additional
one-half 	hour of pay per workday, 	the additional 	pay they would
have earned, 	until: 	(a) 	the date the University bargains to
agreement 	with 	the Association regarding 	the 	effects 	of 	its
decision 	to 	reduce 	the 	staffing level 	within the Superblock; 	or
(b) 	the date 	the University and the Association meet 	and 	confer
to bona 	fide 	impasse; 	or 	(c) 	the failure of 	the Association to
request bargaining within ten 	(10) 	days 	following 	the date 	that
this Decision 	is 	no 	longer subject 	to 	reconsideration or 	the
failure 	of 	the Association 	to 	commence 	negotiations within 	five

(5) 	working days of 	the University's notice of 	its desire to meet
and confer; 	or 	(d) 	the subsequent 	failure of the Association to
meet 	and 	confer 	in good 	faith.
Dated: 	THE 	REGENTS 	OF 	THE UNIVERSITY
OF 	CALIFORNIA
By Authorized 	Representative
_
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LAWRENCE 	LIVERMORE 	NATIONAL
LABORATORY 	PROTECTIVE 	SERVICE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
THE 	REGENTS 	OF 	THE UNIVERSITY OF
CALIFORNIA 	(LAWRENCE 	LIVERMORE
NATIONAL 	LABORATORY),
Respondent.
)
)
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-421-H
PROPOSED DECISION
(10/23/96)
)
)
)
)
)
)
.)
).
Appearances: 	Carroll, 	Burdick & McDonough, 	by Gary M. 	Messing,
Esq., 	for Lawrence Livermore National 	Laboratory Protective
Service Officers Association; 	Gabriela B. 	Odell, 	Esq., 	for the
Regents 	of 	the 	University of 	California 	(Lawrence 	Livermore
National Laboratory).
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	proceeding 	commenced with 	the 	filing of 	an unfair
practice 	charge 	by the 	Lawrence 	Livermore 	National 	Laboratory
Protective 	Service Officers Association 	(PSOA) 	against 	the
Regents 	of 	the 	University of 	California 	(Lawrence 	Livermore
National 	Laboratory) 	(LLNL or University) 	on May 23, 	1995. 	After
investigation, 	and on July 27, 	1995, 	the general 	counsel of the
Public 	Employment 	Relations 	Board 	(Board or 	PERB) 	issued a
complaint 	against 	the 	LLNL.
The 	complaint 	alleged unilateral 	changes 	in 	staffing 	levels,
overtime 	opportunities 	and procedures 	for evaluation 	of 	persons
returning 	to work 	after 	incurring an 	injury on 	the 	job.
Specifically, 	the 	complaint 	alleged that 	prior 	to 	January 5,
e

1995, 	the 	staffing levels within the Superblock 	(a highly-
secured 	area 	within 	the 	LLNL more 	particularly described below)
included a total 	of 	15 	Protective 	Service 	Officers 	(PSO) 	on the
day shift 	and 14 	on the 	swing and owl 	shifts. 	The 	complaint
alleged that 	on or about 	January 5, 	1995, 	LLNL changed the policy
by transferring 	four officers 	on 	the 	day 	shift 	and 	six officers
on the 	swing 	and owl 	shifts 	to 	assignments 	outside 	the
Superblock.
Four additional 	causes 	of 	action were 	set 	forth 	in the
complaint 	relating 	to 	changes 	in 	the 	distribution of 	staff 	among
the 	three 	shifts 	at 	the 	Superblock, 	overtime opportunities 	for
Armed 	Property Control 	Officers, 	procedures 	for evaluation of
fitness 	for return to work 	following on-the-job 	injury, 	and
failure 	to meet 	and 	confer 	in good 	faith.
All 	of 	the 	changes 	in policy were 	alleged to have 	been
undertaken without 	giving 	PSOA 	an 	opportunity to 	meet 	and 	confer
over the 	decision to 	implement 	the 	changes 	and/or 	the 	effects 	of
the 	changes. 	This 	conduct was 	alleged to constitute 	failure 	and
refusal 	to meet 	and confer 	in good 	faith 	in violation of 	the
Higher Education Employer-Employee 	Relations 	Act 	(Act 	or HEERA)
section 3571(c), 	and interference with employees 	rights 	to be
represented in violation of 	section 3571(a)-1
The 	Act 	commences 	at 	section 3560 	of 	the Government 	Code.
All 	references 	are 	to 	the Government 	Code 	unless 	otherwise 	noted.
In pertinent part, 	section 3571 provides 	that 	it 	is 	an unfair
labor practice 	for 	the University to:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
N2

discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter.
For purposes of this 	subdivision, 	"employee"
includes 	an 	applicant 	for 	employment 	or
reemployment.
(c) 	Refuse 	or fail 	to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
The LLNL filed its 	answer on August 	16, 	1995, 	admitting and
denying allegations 	and 	raising 	affirmative 	defenses 	that 	will 	be
discussed 	in other parts 	of 	this 	decision.
Settlement 	efforts 	by PERB 	agents were 	not 	successful.
Formal hearing was held on February 20 	and 21, 	1996, 	in
Pleasanton, 	California. 	At 	the 	commencement of the 	formal
hearing, 	PSOA announced that 	a 	tentative 	agreement 	on 	a
collective 	bargaining 	agreement 	had been 	reached between 	PSOA and
LLNL. 	Subsequent 	ratification of 	the 	agreement 	resulted 	in
PSOA's withdrawal 	of 	all 	issues 	raised by the 	complaint 	save 	the
change 	in 	staffing 	levels within the 	Superblock. 	With 	the 	filing
of post-hearing briefs on April 	18, 	1996, 	the matter was deemed
submitted 	for 	decision.
FINDINGS 	OF 	FACT
The University 	is 	an employer within the meaning of 	the Act.
PSOA was 	certified by PERB 	in March of 	1994, 	as 	the 	exclusive
representative 	of 	security personnel 	at 	the 	LLNL 	facility near
Livermore, 	California. 	There are approximately 123 	PSOs,
3 0 	sergeants 	and 6 	lieutenants 	employed within the 	Protective
w
	3

Forces Division, 	one of 	four divisions 	in the 	Safeguards 	and
Security Department 	at 	LLNL.
Phil 	Kasper 	(Kasper) 	is 	the 	Protective 	Forces 	Division
leader. 	Steve 	Crowder 	(Crowder) 	has been a PSO at 	the LLNL 	for
over eight years 	and serves 	as president 	of 	PSOA and 	is 	a member
of 	its negotiations 	team. 	PSOA represents 	only the 	PSOs.
PSOs 	are 	armed officers 	classified by 	the 	Department 	of
Energy 	(DOE) 	as Security Police Officer Level 	II. 	PSOs have
authority, 	under the Atomic Energy Act 	and Title 	10, 	Code of
Federal Regulations, 	Part 	1047, 	to carry an armed weapon and to
use 	whatever 	force 	is necessary to prevent 	theft 	or 	sabotage 	of
special 	nuclear material 	(SNM).2 This 	includes 	authority to
arrest persons within the 	confines 	of 	the 	laboratory. 	The LLNL
is 	a 	Class A 	facility operated by the 	University under 	contract
with DOE.
Under the Atomic 	Energy Act,3 DOE 	is 	empowered to 	enact
regulations 	governing the 	security of 	SNM. 	DOE 	operates 	nearly
one 	hundred 	facilities 	around the 	country. 	DOE 	rules 	and
regulations, 	not 	the 	least 	of which involves 	security, 	govern the
operation of 	the 	LLNL. 	DOE has 	final 	and ultimate 	authority on
all 	levels of 	security.
2Either 	plutonium or 	enriched 	uranium.
342 U.S.C, 	section 2011, 	et 	seq. 	The statute refers to the
Atomic Energy Commission. 	In 1977, 	section 7151(a) 	was enacted
which transferred all 	functions 	to 	the 	DOE.
A	4

Section 706.40 of Title 10 	- 	Energy4 provides:
On all matters 	of 	security at 	all 	Government-
owned,, 	privately operated DOE 	installations,
DOE retains 	absolute and final 	authority, 	and
neither 	the 	security rules 	nor 	their
administration 	are matters 	for 	collective
bargaining between management 	and 	labor,
insofar 	as 	DOE 	security regulations 	affect
the collective bargaining process, 	the
security policies 	and regulations 	will 	be
made known to both parties. 	To 	the 	fullest
extent 	feasible 	DOE will 	consult 	with
representatives 	of 	management 	and 	labor 	in
formulating 	security 	rules 	and 	regulations
that 	affect 	the 	collective 	bargaining
process.[5]
These 	regulations 	also 	address 	collective 	bargaining 	rights
of 	employees. 	Section 706.2(e) 	provides 	that 	there will be
"[m]inimum 	interference with 	the 	traditional 	rights 	and
privileges 	of American labor." 	These provisions 	also provide 	for
security 	clearance 	for union 	representatives 	to 	classified
information 	where 	reasonably 	expected.
DOE Order 5632.7A, 	Chapter 1, 	section 3, 	which covers
allocation of personnel 	resources provides, 	in relevant part:
a. 	. . . 	The 	location and manning of 	fixed
and mobile posts 	shall 	be 	determined using
the 	"Design Basis 	Threat 	Policy 	for
Department of Energy 	(DOE) 	Programs and
Facilities 	(U);" 	local vulnerability
analyses; 	characteristics of 	the 	facility or
site, 	terrain, 	and environment; 	and
appropriate Departmental 	directives. 	When
planning for response times, 	the delay
provided by physical 	barriers 	after 	the
460 FR 67518, 	section 706.40.
5While 	this 	section 	refers 	to 	"privately operated DOE
installation" 	I 	am convinced by the 	testimony of University
witness Richard Vergas 	that 	it 	applies 	to LLNL.
5

initial 	detection of 	the 	intrusion shall 	be
considered. 	Work 	schedules 	for protective
force 	personnel 	shall 	be 	developed and
monitored on a 	site-specific 	basis 	to provide
adequate relief, 	training time, 	balanced
overtime, 	and sufficient 	time off 	to ensure
on-duty personnel 	work 	at 	peak physical 	and
mental 	effectiveness.
The 	Superblock
The 	LLNL 	consists 	of 	a 	one-square 	mile 	area 	surrounded by a
fence 	and 	includes 	a work place 	for about 	8,500 	employees. 	The
LLNL 	is 	owned by the 	federal 	government 	through DOE. 	DOE has 	a
operations 	contract 	with 	the 	University 	for 	the 	latter 	to 	operate
the LLNL.
Within the 	confines of 	the 	LLNL 	is 	the 	Superblock, 	nearly
the 	size 	of 	a 	city block with the 	highest 	level 	of 	security
within the LLNL. 	It 	is 	a change 	in the 	staffing of 	PSOs within
the 	Superblock 	that 	gave 	rise 	to 	this 	dispute.
Completely encircling 	the 	Superblock 	is 	the 	isolation 	zone,
an area 35 	feet 	wide, 	with parallel 	ten foot 	fences 	on each side
of 	the 	zone. 	Within the 	isolation 	zone 	are 	several 	electronic
means 	of 	detection 	for persons 	attempting to gain 	access 	to 	the
Superblock. 	These 	include 	the 	Personnel 	Intrusion Detection
Delay Assessment 	System 	(PIDDAS). 	Closed circuit 	television
cameras provide 	a 	360-degree visual 	access 	to the 	LLNL's 	central
alarm system 	(CAS). 	Manned 24 	hours a day, 	the CAS 	staff can
alert 	PSOs to possible 	intrusion. 	In addition, 	the ground
surface 	of 	the 	isolation 	zone 	is 	covered with material 	to 	slow
down 	an attempted 	trespasser who 	succeeds 	in overcoming 	one 	of
the 	two 	fences.
6

At 	the 	northeast 	corner of 	the 	Superblock 	is 	located the
Northeast Tower 	(NE Tower), 	and just 	to the 	south of 	the 	tower is
an emergency portal. 	From the NE 	Tower can be 	seen 	the 	isolation
zone westward to 	the 	northwest 	corner, 	and 	southward 	to 	the
Southeast Bunker 	(SE Bunker). 	The SE Bunker lies 	at 	the
southeast 	corner 	of 	the 	Superblock.6 From this 	bunker 	can be
seen the 	isolation 	zone 	to 	the Northeast 	Bunker and
westward to 	the 	Southwest 	Tower 	(SW Tower). 	The 	SW Tower is
located on the 	roof 	of Building 331 	in 	the 	extreme 	southwest
corner of 	the 	Superblock. 	About 	two-thirds 	the 	distance 	from the
SE Bunker to 	the 	SW Tower 	is 	located the 	south portal. 	From the
SW Tower 	can be 	seen 	the 	isolation 	zones 	eastward to 	the 	SE
Bunker and northward 	to 	the 	northwest 	corner of 	the 	Superblock.
At 	the northwest 	corner is the Northwest 	Portal 	(NW Portal),
where 	the main entrance 	to 	the 	Superblock 	is 	located. 	Here
persons 	and vehicles 	are 	searched 	for 	entrance 	into 	the
Superblock.7 To 	the 	east, 	and slightly south, 	almost 	due north
of 	the 	south portal 	is the Northwest 	Bunker.8
6Manning and duties 	for 	this 	location are 	the 	same 	as 	for
the Northeast 	Bunker.
7At 	the 	corner 	is 	the 	tower, 	another 	steel 	and glass
enclosure, 	where 	the 	PSO was 	to observe 	the 	fence 	lines 	and
isolation 	zones 	on the north and east 	side. 	This position 	is 	one
that 	was 	removed by the 	action 	complained of 	by charging party.
8This 	is a steel 	room, 	about eight-by-eight 	feet, 	consisting
of 	bullet 	resisting 	steel 	and glass. 	An armed PSO 	is 	stationed
there. 	The 	officer has 	a handgun and an auxiliary weapon, 	a
semi-automatic 	rifle.
77

Four buildings, 	of varying, size and height 	(the highest 	is
three stories high), 	house program components, 	and are numbered
331 	(one story), 	332 	(one and two stories), 	334 	(three stories)
and 335 	(one 	story). 	The buildings provide barrier to 	full
visual 	access 	to all 	the grounds within the 	Superblock, 	both 	from
the 	towers 	and the bunkers. 	The walls 	of 	the buildings 	housing
the 	nuclear material 	are 	nine 	inches 	of 	reinforced concrete.
Persons 	attempting 	to 	enter 	the 	Superblock 	are 	first
required 	to 	enter 	a 	telephone 	booth-like 	room 	called a 	"cane
booth," 	at 	the NW Portal. 	The person enters 	a coded card 	into a
reader head with their personal 	access number. 	If 	the number 	is
acceptable, 	a 	second door opens 	and allows 	entrance 	to the 	search
area, 	which is much like 	an airport 	security area. 	The person
steps 	through a metal 	detector 	and 	items 	are 	examined under 	an
x-ray 	machine.
Vehicles 	enter the 	Superblock via a 	"sallyport" 	area, 	again
at 	the NW Portal, 	where they are 	searched.
The NW Portal 	is manned by two officers, 	one of whom is
within 	the 	portal 	and operates 	the 	x-ray 	and 	sallyport
inspections. 	The 	officers 	are 	separated 	so 	that 	both cannot 	be
compromised at 	once.
PSOs' 	duties 	at 	the 	Superblock are 	to protect 	classified and
SNMs 	from unauthorized theft, 	sabotage or other use. 	The
protection 	is 	accomplished by 	assessment 	and 	interdiction.
Assessment 	is 	response 	to 	threats 	of 	endangerment 	to 	the 	facility
and 	interdiction 	is 	exclusionary or denial 	tactics. 	Of 	equal
8

importance 	is 	to prevent 	the 	nuclear materials 	from being moved
to the outside. 	In effect, 	as Crowder testified, 	their purpose
is 	to protect 	the people 	outside 	the 	Superblock.9
Other means, 	electronic 	and otherwise, 	are 	employed by the
LLNL to provide detection. 	As noted, 	several 	electronic 	systems
around 	the 	area 	are 	designed 	to 	notify PSOs 	of 	intrusion.10 Upon
notice, 	the 	PSOs will 	assess 	the 	intrusion and undertake
interdiction 	(i.e., 	fighting tactics), 	if appropriate.
Two different 	shifts 	operate during the daytime, 	one 	from
6:00 	a.m. 	to 	3:30 	p.m., 	and a 	second 	from 	7:00 	a.m. 	to 	3:00 	p.m.
The 	swing shift 	covers 	3:00 p.m. 	until 	li:30 p.m. 	and the 	owl
shift 	is 	11:00 	p.m. 	to 	7:30 	a.m.. 	PSOs 	are 	regularly scheduled
for periods 	of 	time 	to 	shifts within the 	Superblock 	and then 	to
shifts outside 	the 	Superblock, 	but within the LLNL.
In May of 	1994, 	the LLNL conducted a series 	of 	self
assessment 	tests 	for reduced costs 	in the 	Superblock. 	It 	is 	not
disputed that DOE was 	the 	initiator in this 	effort. 	The DOE and
the 	Vulnerability Analysis 	Research Group 	(VARG)11 were
9Indeed, 	Chowder 	said the 	duty of 	the 	PSO was 	" . . . 	more
to protect 	the people 	outside 	of 	the 	superblock 	from the
ramifications of it getting out 	. 	. 	. 	." 	Crowder also agreed
that 	the 	"people outside," 	includes 	"the whole world".
10In a hearing before 	PERB 	in 1992, 	Kasper testified that 	the
PSOs 	inside 	the 	Superblock do not 	have 	detection responsibility
since 	the 	installation of 	the 	PIDDAS, 	an advanced detection
system. 	Their responsibility, 	said Kasper, 	is 	assessment 	and
interdiction, 	the 	latter by way of 	exclusionary or denial
tactics.
11VARG is 	a 	subgroup within 	the 	Safeguards 	and Security
Department 	which addresses 	security design 	of 	the 	Superblock 	and
SNM.
9

responsible 	for the 	analysis 	of 	measures 	to 	find an 	tolerable
level 	of 	security to 	reach 	lower costs 	at 	the 	Superblock. 	This
analysis 	involved assumption of 	"the worst 	case 	scenario,"
information 	about 	which 	the 	University claimed was 	classified.12
The 	test 	results 	led 	the 	University to 	conclude 	that 	fewer 	PSOs
could be 	used within 	the 	Superblock.
After PSOA's 	certification by PERB, 	the parties 	first met 	in
November of 	1994, 	and discussed ground rules. 	Proposals
sunshined by either 	side 	did not 	include 	any staffing 	changes.
The 	January 	1995 	Staffing 	Changes Announcements
On the morning of January 5, 	1995, 	the LLNL announced to
laboratory employees, 	but not 	PSOA, 	changes 	to staffing at 	the
Superblock. 	These changes were 	components of the A-l option, 	one
of many designed to 	reduce 	costs 	of 	the 	LLNL.13 A general
12PSOA had, 	by subpoena duces 	tecum, 	called for several 	named
documents 	that 	went 	to the 	established risk determination. 	Among
these 	were 	the 	Vulnerability Assessment 	Probability 	of 	Occurrence
Policy and the 	Design Basic 	Threat 	Policy. 	The University
claimed 	the 	documents 	were 	classified 	and would not 	reveal 	their
contents. 	PSOA requested and the 	administrative 	law judge 	(ALJ)
granted 	exclusion 	of 	any 	testimony by University witnesses 	on
information 	that 	was 	contained within 	the 	documents 	withheld by
the University. 	(See 	Code of 	Civil 	Procedure 	section
2023(b)(3).) 	While 	the 	University claims 	denial 	of 	opportunity
to put 	on a defense 	to the 	charge by the 	exclusionary ruling,
this 	proposed decision does 	not 	question 	either 	the 	means 	by
which the determination of 	an acceptable 	staffing 	level was made,
or the 	conclusion 	itself. 	The 	PSOA concurred 	in this 	limitation.
Hence, 	application of 	the 	rule of exclusion did not 	affect 	the
University's 	defense 	in this 	case.
13The A-l option came about, 	said Kasper, 	as a result of a
DOE 	"cost 	effectiveness 	review." 	Kasper 	testified 	that 	the 	cost
of 	maintaining 	the 	plutonium 	facility 	in 	Superblock was 	exceeding
the 	cost 	of 	research that 	was 	being conducted. 	In an effort 	to
reduce the 	cost, 	DOE directed a cost 	effectiveness 	review.
10

announcement 	that 	same day indicated the 	change was 	being made 	to
reduce 	the 	cost 	of 	Superblock 	security. 	Implementation of 	the
plan was 	stated to 	"result 	in substantial 	cost 	savings 	to 	the
defense 	and nuclear 	technologies 	program."
On that 	same day, 	the parties meet 	for the 	second
negotiating session. 	At 	the bargaining 	session, 	PSOA raised the
A-l 	option 	as 	affecting workload and 	safety.
Crowder's 	testimony 	is 	somewhat 	vague 	as 	to 	the precise
demand made 	at 	the 	table. 	It 	appears 	that 	he 	requested
negotiations 	on workload and 	safety and 	the 	effects 	of 	the
change. 	Kasper confirmed that 	there were 	discussions 	about
"safety 	issues 	and workload."
Crowder's testimony does not, 	however, 	provide a basis 	for
finding 	that 	PSOA requested 	to negotiate 	overtime pay at 	the
January 5 meeting.
Robert Perko 	(Perko), 	representing the University, 	credibly
testified that 	PSOA never mentioned economic 	issues. 	Perko
inquired 	as 	to which 	labor 	codes 	covered 	the 	issue 	and 	that 	the
changes 	were 	classified and not 	subject 	to bargaining.
PSOA requested 	all 	documents 	relating 	to 	the 	change 	and
Perko 	responded that 	they were 	classified. 	PSOA was 	told that
setting the 	level 	of 	security was 	the University's 	right 	and not
bargainable. 	The 	LLNL announced that 	Kasper would make 	a
presentation at 	the 	next 	bargaining 	session.
11

At 	the 	next 	session Kasper 	spoke 	of 	the 	history of 	the
Superblock. 	The University refused to bargain over the 	impact 	of
the 	reduction or 	talk 	about 	the 	impact 	on workload.
The 	Staffing 	Changes
Before 	the change announced on January 5, 	1995, 	there were
13 	PSO positions 	on day shift, 	and 	11 	on each the 	swing and owl
shifts.14 Shift 	differential 	salary bonus 	of 	7-1/2 	percent 	and
15 percent were given to 	swing and owl 	shift 	PSOs, 	respectively.
There were 	two officers 	in the NW Portal,15 one 	in the
Northwest Bunker, 	one 	in the NE Tower, 	one 	in the 	SE Bunker and
one 	in the SW Tower. 	In addition, 	there was one officer in
increment 	three post, 	one 	officer 	in increment 	three 	search and
one 	temporary position at 	increment 	one.16 Day 	shift 	had 	three
roving 	foot 	patrols, 	and 	swing and owl 	shifts had two 	roving 	foot
patrols 	each.
14The 	change 	actually occurred the 	following April. 	Those
swing 	and owl 	shift 	employees 	whose 	positions 	were 	cut 	from 	the
Superblock were 	reassigned to 	the 	day 	shift 	outside 	of 	the
Superblock, 	losing shift 	differentials, 	and assuming other
duties.
There 	are 	a number of positions 	outside 	of 	the 	Superblock
that 	are paid 	from funds 	other than defense. 	All 	those 	inside
the 	Superblock 	as well 	as 	three motor patrols 	outside 	the
Superblock 	fence 	are 	paid 	for by defense 	and are 	part 	of 	the
minimum 	requirement.
15The portal 	officer and the portal 	entry officer.
^Increment 	designations 	mean positions 	of 	officers 	located
inside buildings. 	Increment 	three 	is 	the main entrance 	to 	the
Radioactive Materials Area 	(RMA), 	manned by two officers, 	at 	the
east 	end of 	Building 332. 	Increment 	one 	is 	in the 	central part
of Building 332.
12

Under the A-l plan, 	two positions, 	the NW Portal post
officer position, 	and the NW Portal 	entry search officer, 	would
be 	restricted. 	Both previously covered 24 	hours 	a day, 	seven
days 	a week, 	and as 	a result 	of 	the plan were 	thereafter staffed
only on Monday through Friday, 	0600 	to 	1900 	hours. 	The NW Portal
is 	otherwise 	closed at 	night 	and on week-ends.
Twenty-four hour coverage 	at 	the 	NW and SW Towers 	was
eliminated.
According 	to 	Crowder, 	the 	change 	included the 	elimination of
the 	NE 	Tower 	officer who 	formerly 	operated 	the 	emergency 	entrance
portal. 	The 	emergency entrance portal 	is 	now manned by the 	SE
Bunker officer who must 	exit 	his 	bunker 	and go by 	foot 	to 	the
emergency entrance 	portal 	to manually operate 	the 	gate.
The 	second and 	third of 	three 	day shift 	foot 	patrol
positions were 	eliminated. 	The 	second of 	two 	swing and owl 	shift
foot 	patrol 	positions 	were 	eliminated.
In addition, 	there were 	four motor patrols 	surrounding the
Superblock. 	According to Crowder, 	the 	change was 	to three motor
patrols. 	This testimony is however, 	very vague, 	and accordingly,
I 	decline 	to make 	a 	finding with respect 	to 	the motor patrols
surrounding 	the 	Superblock.
The 	change 	also 	caused a 	loss 	of 	overtime 	by one-half 	hour
every day, 	for certain Superblock officers. 	The 	regular shift
was 	eight 	and one-half hours per day, 	one-half 	hour of which was
a 	lunch period for which there is no pay. 	However, 	certain
Superblock officers 	were 	not 	relieved 	for 	the 	lunch period 	so
13

they 	received one 	half-hour pay 	for 	their 	lunch period. 	Prior 	to
the 	change, 	14 	positions 	inside 	the 	Superblock were designated as
"no 	code" 	meaning 	they received pay 	for 	the 	lunch period.17
In addition to the changes described above, 	Crowder-
described the 	other 	impacts 	as 	follows:
The 	NE 	Tower 	and SE 	Tower officers 	were 	removed 	from
"hardened" 	quarters, 	safe for personal reasons, 	thus PSOs could
not 	assess 	nor 	interdict 	from those 	locations. 	As 	a 	consequence,
foot 	patrol 	officers, 	who 	formerly did not perform those 	duties
were 	required 	to 	assume 	them.
This, 	combined with the 	elimination of 	foot patrol 	officer
two on the 	swing and owl 	shifts, 	encumbered the 	foot patrol
officer number one 	and the 	sergeant 	(not 	a member of 	the 	unit)
with additional 	duties. 	This was described in the notice 	issued
by the University on January 5, 	1995, 	where 	it was 	stated that
the 	sergeant 	would assume 	the 	responsibility to 	insure 	the NW
Portal 	was properly 	secured and all 	alarms 	are 	set 	when 	the
17At 	the 	first 	day of 	hearing, 	in response 	to charging
party's 	opening statement 	on 	the matter, 	the University raised
objection 	to 	and moved to 	strike 	any reference 	to 	a 	change 	in
overtime payments. 	The 	objection was 	that prior to the 	hearing
PSOA had only raised 	issues 	of 	safety and workload, 	and had never
raised the 	overtime 	issue. 	The University requested a 	recess 	to
gain 	an opportunity to prepare 	evidence 	on 	the 	issue.
The ALJ noted that 	the 	hearing was 	scheduled 	for 	four 	days,
and that 	he was prepared to go four days, 	and for the moment,
denied the motion. 	The University did not 	raise 	concern again
during 	the 	hearing about 	overtime pay 	for 	the worked 	lunch
period, 	and in fact, 	cross 	examined Crowder about 	the 	issue.
14

portal 	is not manned. 	Also, 	the 	sergeant would assume escort
responsibilities.
Crowder 	testified that 	prior 	to 	the 	elimination of 	the
second 	foot 	patrol 	officer positions 	on the 	swing and owl 	shifts,
foot 	patrol 	officer one 	would handle 	escorts 	and 	alarm
assessments with the 	sergeant. 	Foot patrol 	officer 	two provided
breaks 	to all 	the other posts within the 	Superblock, 	performed
vehicle 	searches 	at 	the 	NW Portal 	and additional 	duties 	assigned
by the 	sergeant. 	After the change, 	all duties of 	the 	foot patrol
officer 	two position were 	assumed by the 	foot 	patrol 	officer 	one.
Before 	the 	change, 	foot patrol 	officer one 	escorted persons
within 	the 	RMA and 	handled 	alarm 	assessments 	with 	the 	sergeant.
Foot 	patrol 	officer two was 	to 	do 	searches 	at 	the NW Portal 	for
vehicles who 	came during the 	swing or owl 	shifts, 	gave breaks 	to
all 	the 	other posts 	within 	Superblock 	and performed miscellaneous
duties 	assigned by the 	sergeant. 	After the 	change, 	the 	foot
patrol 	officer 	one 	had to 	assume 	those 	duties 	formerly done 	by
foot 	patrol 	officer two.
As noted, 	before 	the change, 	the NW Portal was manned 24
hours a day, 	seven days 	a week. 	It now closes 	at 	7:00 p.m. 	as 	a
result of 	the 	change. 	As before, 	maintenance and hazards 	control
personnel 	need access 	twice 	a night 	through the NW Portal, 	thus,
foot 	patrol 	officer one 	and the 	increment 	officer have 	to 	open up
the NW Portal 	to 	allow access.
When those 	personnel 	have 	to do a walk-through of 	the
storage 	area, 	increment 	search and 	foot 	patrol 	officer one 	have
15

to open up the NW Portal, 	search them, 	allow them in and secure
the NW Portal, 	then they must 	open up 	increment 	three, 	their
normal 	duty before 	January 	5.
Both maintenance 	and hazard 	control 	personnel 	regularly 	come
at 	once. 	Where before each of 	the 	two 	foot patrol 	officers would
escort 	each of 	the 	two personnel 	into 	the 	Superblock, 	now foot
patrol 	officer one 	must 	escort 	one 	and then return 	to 	escort 	the
other.
Crowder 	said the 	"fighting" 	duties 	have 	increased because 	of
the 	reduction 	in manpower. 	There 	has been no changes 	in the
policies 	on use 	of 	deadly 	force 	or expectations 	of 	officers 	in
the instance of engagement. 	This means, 	said Crowder, 	the PSOs
have 	to 	"fight 	twice 	as 	hard," 	against 	any intruder.
No 	PSOs 	were 	laid off 	as 	a 	result 	of 	the 	reduction 	in
personnel 	covering 	the 	Superblock. 	Those 	officers 	whose
positions 	were 	eliminated 	inside 	the 	Superblock under 	the A-l
option were 	transferred to 	duties 	outside 	the 	Superblock 	and paid
from a different 	category of 	funding. 	Hence, 	reduction 	in
expenses 	within 	the 	Superblock was 	realized.
No 	one 	has 	ever tried to 	scale 	the 	fence 	surrounding the
Superblock. 	No 	one 	has 	tried to 	shoot 	a weapon 	into 	the
Superblock.
16

ISSUES
The 	issue 	in this 	case 	is whether the University violated
the 	HEERA when 	it 	unilaterally reduced the 	staffing of 	PSOs
within 	the 	Superblock 	and or when 	it 	eliminated overtime 	payment
for 	certain 	PSOs 	for work 	during 	lunchtime?
CONCLUSIONS 	OF 	LAW
Section 	3570 	of 	HEERA 	imposes 	upon 	the 	University the 	duty
to meet 	and 	confer with exclusive 	representatives 	on 	all 	matters
within the 	scope 	of 	representation.
The 	scope of 	representation 	for the University, 	means 	"and
is limited to, 	wages, 	hours of employment, 	and other terms and
conditions 	of 	employment."18 The 	scope 	of 	representation 	shall
not 	include:
(1) 	Consideration of the merits, 	necessity,
or organization of 	any service, 	activity, 	or
program 	established by 	law 	or 	resolution 	of
the regents or the directors, 	except 	for the
terms 	and conditions 	of 	employment 	of
employees 	who may be 	affected 	thereby.
Section 3562(q)(4) 	further provides 	that:
. 	. 	. 	All matters not within the scope of
representation 	are 	reserved 	to 	the 	employer 	and
may not 	be 	subject 	to meeting 	and 	conferring,
provided 	that 	nothing 	herein may be 	construed 	to
limit 	the 	right 	of 	the 	employer 	to consult with
any employees 	or 	employee 	organization on 	any
matter outside 	the 	scope 	of 	representation.
PERB precedent 	is 	clear that 	the 	employer's 	failure 	to meet
and negotiate 	in good 	faith with 	the 	exclusive 	representative
about 	a matter within the 	scope 	of 	representation 	is 	unlawful.
18Section 3562 (q) .
17

Moreover, 	a unilateral 	change 	in terms 	and conditions 	of
employment within the scope of 	representation, 	is, 	in the absence
of 	a valid defense, 	a per se refusal 	to negotiate. 	(Pajaro
Valley Unified School 	District 	(1978) 	PERB Decision No. 	51;
San Mateo 	County Community College 	District 	(1979) 	PERB Decision
No. 	94.) 	These principles 	apply to the University as well.
(Regents 	of 	the University Of 	California 	(1987) 	PERB Decision
No. 	640-H 	(Regents).)
The 	duty arises 	once 	a 	firm decision has 	been made.
(Mt. 	Diablo Unified School District 	(1983) 	PERB Decision No. 	373;
Regents.) 	Under 	the 	Educational 	Employment 	Relations Act
(EERA),19 where the scope language is different, 	PERB has
developed 	the 	following 	test 	where 	a 	non-enumerated 	subject 	will
be 	found to be within the 	scope of 	representation if: 	(1) 	it 	is
logically and reasonably related to hours, 	wages 	or an enumerated
term and condition of employment; 	(2) 	the subject 	is of 	such
concern 	to both management 	and employees 	that 	conflict 	is 	likely
to 	occur 	and 	the 	mediatory 	influence 	of 	collective 	negotiations
is 	the appropriate means of 	resolving the 	conflict; 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not 	significantly
abridge 	its 	freedom to 	exercise 	those 	managerial 	prerogatives
(including matters 	of 	fundamental policy) 	essential 	to 	the
achievement 	of 	the 	District's 	mission. 	(Anaheim Union High
School District 	(1981) 	PERB Decision No. 	177, 	cited with approval
19EERA is 	codified at 	section 3540 	et 	seq.
18

by the 	California 	Supreme 	Court 	in 	San Mateo 	City School 	District
et al v. 	PERB 	(1983) 	33 Cal.3d 850, 	864 	[191 Cal.Rptr. 	800].)
Whether 	a violation of 	HEERA has 	occurred depends 	on whether
the 	decision to 	change 	the 	staffing 	levels 	of 	PSOs 	within 	the
Superblock, 	or the effects of that 	change, 	are within the 	scope
of 	representation.
The 	Decision To 	Change 	Staffing Level
The 	University 	is 	excused 	from bargaining 	about 	the 	decision
to 	change 	PSO 	staffing levels 	in the 	Superblock 	if 	either of 	the
following circumstances are met: 	(1) 	staffing levels 	fall within
the 	"merits, 	necessity, 	or organization of any service, 	activity
or program" 	and 	are 	excluded 	from negotiability under 	section
3562(q); 	or 	(2) 	manning levels do not constitute wages, 	hours, 	or
other terms 	and conditions 	of 	employment.
The 	PSOA argues 	that 	under 	First 	National 	Maintenance 	Corp.
v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 2705] 	(First National) 	an
employer's 	decision to 	reduce 	the 	size 	of 	a particular operation
is bargainable 	if 	motivated by labor costs. 	The University
contends 	the 	case 	stands 	for the 	opposite point.
First 	National 	addressed 	the 	employer's 	obligation 	to
negotiate 	its 	decision to 	terminate 	a 	janitorial 	services
contract 	with a 	rest 	home. 	The 	rest 	home was one 	of 	several 	that
the employer, 	by contract, 	provided services. 	What 	the 	Supreme
Court 	said was:
We 	conclude 	that 	the 	harm 	likely to be 	done
to 	an 	employer's 	need 	to 	operate 	freely 	in
deciding whether to 	shut 	down part 	of 	its
business 	purely 	for 	economic 	reasons
19

outweighs 	the 	incremental 	benefit 	that 	might
be 	gained 	through 	the 	union's 	participation
in making the decision, 	and we hold that 	the
decision 	itself 	is 	not 	part 	of 	section 	8(d)'s
-"terms and conditions," 	. 	. 	. over which
Congress 	has mandated bargaining. 	[Fn.
omitted, 	emphasis 	in original.20]
In Arcata Elementary School 	District 	(1996) 	PERB Decision
No. 	1163, 	the Board cited, 	among others, 	First National 	for the
proposition 	that 	the National 	Labor Relations 	Board has 	excluded
managerial 	decisions 	"which 	lie 	at 	the 	core 	of 	entrepreneurial
control 	from the 	scope of 	representation unless 	the 	decision 	is
based upon 	labor 	costs."
The 	Board went 	to expound the 	test 	as 	applied to 	a 	school
board's 	decision 	to 	reduce 	the 	hours 	of vacant 	positions 	as
follows:
. 	. 	. 	Such a decision which reflects a change
in the nature, 	direction or level 	of 	service
falls 	within management's 	prerogative 	and 	is
outside 	the 	scope 	of 	representation.
Conversely, 	a decision to change the hours of
a vacant 	position which 	is 	based on 	labor
cost 	considerations 	and does 	not 	reflect 	a
change 	in the nature, 	direction or level 	of
service, 	is directly related to 	issues of
employee wages 	and hours 	and 	is 	within 	the
scope of representation. 	[Fn. 	omitted.]
In this 	case 	the 	decision to 	change 	the 	staffing 	level 	was
clearly predicated on 	labor 	costs. 	DOE mandated the VARG
analysis 	to 	reduce 	costs 	and the 	LLNL 	clearly implemented 	the
change 	to 	reduce 	the 	cost 	of 	security within the 	Superblock.
20The 	court 	went 	on to observe 	that 	the 	decision 	to halt 	work
at 	the 	specific 	location 	"represented a 	significant 	change 	in
petitioner's 	operations, 	a change not unlike 	opening a new line
of 	business 	or going out 	of 	business 	entirely."
20

Yet, 	the decision to reduce 	the 	staffing 	level within the
Superblock 	also 	constitutes 	a determination of 	level 	of 	service
to be 	provided. 	This 	type 	of 	decision was 	recognized by PERB 	in
Arcata 	to 	remain within the prerogatives 	of 	management.
Moreover, 	in Mt. 	Diablo Unified School District 	(1983) 	PERB
Decision No..373, 	the 	Board held that 	staffing 	levels 	were within
managerial prerogative, 	and thus not negotiable.
There 	is 	additional 	support 	for a 	conclusion 	that 	the
decision 	to 	change 	the 	staffing 	level 	of 	security 	inside 	the
Superblock 	is 	within managerial 	prerogatives. 	The University
argues 	that 	the 	decision 	to 	reduce 	staffing at 	the 	Superblock 	is
preempted by 	federal 	law, 	and relieves 	the University 	from
meeting 	and 	conferring about 	the 	decision 	to 	change 	staffing
levels.
Citing the 	section of 	the 	Code 	of 	Federal 	Regulation 	set
forth above, 	the University relies 	on California 	Federal 	S&L Assn
v. 	Guerra 	(1987) 	479 U.S. 	272 	[93 	L.Ed.2d 613] 	which holds that
the 	United 	State 	Constitution's 	supremacy clause 	gives 	federal
law supersession over state 	law 	(1) 	when Congress, 	within
constitutional 	limits, 	preempts 	state 	law by so 	stating 	in
express terms; 	(2) 	by implication, 	where the scheme of 	federal
regulation 	is 	so 	sufficiently 	comprehensive 	to make 	reasonable
the 	inference 	that 	Congress 	"left 	no 	room 	for" 	supplementary
state 	regulation; 	or 	(3) 	where 	there 	is 	an actual 	conflict
between 	state 	and 	federal 	law.
21

In Boyle v. 	United Technologies Corp. 	(1988) 	487 U.S. 	500
- -
[101 	L.Ed.2d 442], 	the preemption doctrine was 	extended by the
Supreme 	Court 	to 	those 	situations where:
. 	. 	. 	[A] 	"significant conflict" exists
between 	an 	identifiable 	"federal 	policy or
interest 	and the 	[operation] 	of 	state 	law"
[citation] 	or the 	application of 	state 	law
would 	"frustrate 	specific 	objectives" 	of
federal 	legislation, 	. . .
DOE's 	authority, 	under the Atomic 	Energy Act 	to 	control
possession, 	use and production of 	atomic 	energy, 	includes
regulation 	enactment 	regarding 	atomic 	energy.
The 	cited 	regulation gives 	DOE 	absolute 	and 	final 	decision
making 	over 	security 	and 	expressly 	exempts 	from 	collective
bargaining between management 	and 	labor 	the 	"security rules" 	and
"their 	administration."
Here, 	urges the University, 	the regulations place 	"all
matters 	of 	security" 	under 	federal 	control 	and 	"all 	matters 	of
security" 	must 	include decisions of 	how, 	where 	and when 	security
forces 	are 	to be 	stationed.
It 	further 	argues 	that 	a 	requirement 	under HEERA to bargain
staffing 	decisions 	would 	inevitably 	conflict 	with 	federal
authority. 	In this 	case, 	it would mean that 	any decision
concerning number or placement 	of 	officers 	would have 	to be
bargained because 	there 	would arguably always 	be 	an 	impact 	on
"safety and workload." 	A 	failure 	to bargain 	could result 	in 	an
order to 	restore 	the 	status 	quo 	ante with respect 	to 	staffing.
This 	would 	necessarily 	interfere 	with DOE's 	authority 	to
determine 	the 	level 	of 	security it wants. 	It 	is not possible 	to
22

place 	these 	issues 	on 	the 	bargaining 	table 	or under 	PERB's
jurisdiction, 	without 	interfering with 	federal 	authority and
federal 	interests, 	argues the University.21
In San Jose 	Peace Officers Assn. 	v. 	City of 	San Jose 	(1978)
78 Cal.App.3d 935 	[144 Cal.Rptr. 	638],22 the court of appeal
reviewed 	the 	negotiability of 	a 	city's 	policy on use 	of 	force 	by
policemen. 	The 	court 	concluded California 	law on 	the 	question of
whether the 	decision 	is 	bargainable 	rests 	on whether the 	issue
"primarily 	involves 	the 	workload 	and 	safety of 	the 	men 	('wages,
hours 	and working 	conditions') 	or the policy of 	fire prevention
of 	the 	City 	('merits, 	necessity or organization 	of 	any
governmental 	service')". 	(Emphasis in original.)
The 	court 	of 	appeal 	stated:
. 	. 	. 	Unlike the normal job in the private
sector, 	or indeed, 	the job of a fire 	fighter,
police 	work presents 	danger 	from 	third
parties, 	rather than 	from dangerous working
conditions. 	Thus 	the 	employer cannot
eliminate 	safety problems 	merely by
purchasing better 	equipment 	or 	by 	increasing
the work force, 	as 	in Fire Fighters. 	The
danger posed to 	a police 	officer by a
suspected 	criminal 	must 	be 	balanced against
difficult 	considerations 	of 	when an escaping
criminal 	should pay the 	price 	of 	death 	for
21In Regents of 	the University of 	California v. 	Public
Employment Relations Board 	(1988) 	485 U.S. 	589 	[99 L.Ed.2d 664],
the 	United States 	Supreme 	Court 	held 	that 	the 	federal 	postal
regulations 	precluded 	PERB's 	efforts 	to hold 	the 	University 	in
violation of HEERA for its 	refusal 	to process 	a union's mail.
The union's 	mail 	was 	found not 	to 	fall 	within exemptions 	from
mail 	carrying under 	the 	regulations 	relied upon by 	PERB.
22The 	University 	cites 	Los 	Angeles 	Community 	College 	District
(1988) 	PERB Decision No. 	HO-U-374 	[12 PERC 19174], 	for the
proposition that 	PERB has 	adopted the premise 	of 	San Jose. 	That
was 	an ALJ decision, 	however, 	which has no precedential value.
23

ignoring a peace 	officer's 	command to 	stop.
Viewed in this 	context, 	the 	safety of 	the
policeman, 	as important as it is, 	is so
inextricably 	interwoven 	with 	important 	policy
considerations 	relating to basic 	concepts 	of
the 	entire 	system of 	criminal 	justice 	that 	we
cannot 	say that 	the use 	of 	force policy
concerns 	"primarily" 	a matter of wages, 	hours
or working 	conditions.
Here, 	the 	staffing level 	is tantamount 	to the 	level 	of
security that 	the 	DOE will 	accept 	for protection of 	SNM. 	This
level 	of protection is not only from invasion, 	for insiders, 	but
more 	importantly to prevent 	removal 	of 	SNM, 	for protection of 	the
world outside 	the 	Superblock. 	This 	is 	a management 	decision 	that
should not 	be 	subjected 	to 	the 	give 	and 	take 	of 	collective
bargaining.
The 	determination of 	how many PSOs 	are 	to be 	on 	shift 	at 	any
given time, 	or location, 	is a matter of determination of 	the
necessity and/or organization 	of 	the 	service 	of 	protecting 	the
Superblock.
I 	conclude 	that 	the 	decision to 	reduce 	the 	staffing 	level 	in
the 	Superblock 	is 	non-negotiable 	on the premise 	that 	the
determination by DOE 	of 	the 	acceptable 	security 	level 	is
preempted by 	federal 	law. 	Further 	justification 	for 	this
conclusion 	is 	that 	the HEERA prohibits 	negotiations 	on the
necessity, 	or 	organization of 	any 	service 	established by 	the
University.
The 	Effects 	of 	the 	Decision as 	Bargainable
PSOA tentatively 	recognizes 	that 	the 	decision 	to 	reduce
staffing may not 	be negotiable, 	but 	argues 	that 	the 	impact 	of
24

that 	decision 	is 	negotiable. 	This 	contention 	is 	in accord with
National 	Labor Relations 	Board 	(NLRB) 	policy and PERB 	decisions
in other areas where the decision to layoff, 	for example, 	is a
management prerogative, 	but 	the effects of 	the 	layoff 	are within
the 	scope of bargaining. 	(See First National; 	Newark Unified
School District 	(1982) 	PERB Decision No. 	225.)
The 	exclusionary 	language 	of 	HEERA also 	suggest 	legislative
intent 	that 	organization decisions 	are out 	of 	scope, 	yet 	the
effects of 	the decision are bargainable. 	Specifically, 	section
3562(q)(1) 	exempts 	from the 	scope of representation, 	"the merits,
necessity, 	or organization of any service, 	activity, 	or program
established by 	[the 	regents]" 	but 	carves 	out of 	that 	exemption
the 	"terms 	and conditions 	of 	employment 	of 	employees 	who may be
affected 	thereby." 	(Underscoring 	added.)
PSOA argues 	that 	three 	effects 	of 	the 	decision to 	reduce
staffing are within the 	scope 	of 	negotiations. 	They are 	safety,
workload 	and wages.
PSOA relies 	on Fire 	Fighters Union v. 	City of Vallejo 	(1974)
12 	Cal.3d 608 	[116 	Cal.Rptr. 	507] 	for the proposition that 	safety
and workload are within the 	scope of negotiations. 	There, 	the
Supreme 	Court 	was 	faced with language 	somewhat 	similar, 	but 	as
noted, 	in a very barren 	factual 	setting.
Under 	the 	city charter, 	the 	employer was 	obligated to
bargain 	"wages, 	hours 	and working conditions," 	but 	did not 	have
to bargain matters 	involving the 	"merits, 	necessity or
organization 	of 	any governmental 	service."
25

The 	court 	was 	being 	asked 	to 	consider 	the 	negotiability of
union proposals 	that were 	otherwise 	subject 	to arbitration, 	one
of 	which was 	a 	staffing proposal.
The 	city 	contended 	that 	the 	staffing proposal 	would 	invade
the merits, 	necessity or organization of 	the 	fire department.
The 	Supreme 	Court 	followed NLRB 	precedent 	in holding 	that
workload 	and employee 	safety are 	subjects 	of 	bargaining.
However, 	as 	the University points out, 	the court 	actually ruled
that 	it was 	up 	to 	the 	arbitrator to decide 	the 	extent 	to which
the 	union's 	man-power proposal 	primarily 	involved 	the 	"workload
and 	safety of 	the men 	('wages, 	hours 	and working 	conditions') 	or
the 	policy of 	fire 	prevention of 	the 	City 	('merits, 	necessity or
organization of 	any governmental 	service')." 	Because 	the union
had abandoned 	a proposal 	for 	a 	new 	fire 	house 	and more 	equipment,
and 	instead 	accepted 	a 	recommendation 	that 	the 	staffing 	schedule
in effect 	be unchanged during the 	term of 	the 	agreement, 	the
court 	refused to 	rule 	that 	a proposal 	of 	the 	latter type would
invade managements rights as to 	"merits, 	necessity, 	or
organization".
In this case, 	it 	is not possible to ascertain the extent 	to
which 	negotiating 	about 	either 	safety or workload 	issues 	would
compromise 	the managerial 	prerogative 	of 	staffing levels. 	PSOA
was 	never given an opportunity to 	advance 	a proposal 	by which
that 	question could be answered. 	Rather, 	the University, 	without
notice 	to 	PSOA, 	announced 	the 	change 	and refused 	to meet 	and
26

confer about 	safety or workload, 	clearly effects 	of 	the 	staffing
level 	change.
The 	University argues 	that 	PSOA 	failed 	to 	request 	to meet
and 	confer with 	sufficient 	specificity 	to 	establish 	a 	prima 	facie
case of the University's 	refusal.
In Newman-Crows 	Landing Unified School 	District 	(1982) 	PERB
Decision No. 	223, 	PERB held:
. 	. 	. While it is not essential that a
request 	to negotiate 	be 	specific 	or made 	in a
particular form, 	[citations] 	it 	is important
for 	the 	charging party to 	have 	signified 	its
desire 	to negotiate 	to 	the 	employer by some
m e a n s . . . .
The 	Board 	further 	stated:
In other words, 	a valid request will be
found, 	regardless 	of 	its 	form or the words
used, 	if 	it 	adequately signifies a desire to
negotiate 	on a 	subject within the 	scope 	of
bargaining. 	. . .
Here, 	PSOA requested discussion on workload 	and 	safety
consequences 	of 	the 	decision to 	reduce 	the 	staffing 	level 	at 	the
Superblock. 	The University refused to discuss 	those 	issues 	on
the grounds 	that 	the 	staffing level was 	not bargainable. 	The
last 	premise 	is 	correct, 	but 	the University should have
ascertained 	the 	issues 	PSOA was 	concerned about. 	Following 	its
unilateral 	decision 	to 	change 	the 	staffing 	level 	which 	impacted
workload and 	safety 	issues, 	the University refused to 	discuss
those 	issues. 	It 	should have made 	a good 	faith effort 	to 	seek
clarification of 	what 	it 	perceived 	to be 	questionable 	subjects
for meet 	and confer. 	(See Healdsburg Union High School 	District
27

(1984) 	PERB Decision No. 	375; 	Regents of the University of
California 	(1985) 	PERB Decision No. 	520-H.)
Here, 	the University took a 	firm position that 	staffing
levels 	was 	a management 	prerogative 	that 	precluded discussion of
safety and workload issues. 	As 	the 	above 	analysis 	shows, 	both
issues 	are 	in 	fact 	subject 	to 	the 	scope 	of meet 	and confer.
Hence, 	the University's 	refusal was 	a violation of 	the HEERA.
Overtime
As 	PSOA argues, 	wages 	includes 	overtime 	compensation.
(Oakland Unified School 	District 	(1983) 	PERB Decision No. 	367.)
In this 	case, 	the University unilaterally terminated the practice
of 	paying one-half 	hour overtime 	to 	certain 	PSOs within 	the
Superblock.
The 	University advances 	several 	arguments 	against 	liability
on the 	overtime 	issue. 	It 	contends 	that 	PSOA never 	raised any
economic 	issues 	before 	the 	first 	day of 	hearing, 	and 	should be
estopped 	from raising 	the 	issue 	at 	hearing.
The University contends 	that 	the 	overtime 	issue 	is 	properly
relegated 	to 	a 	separate 	unilateral 	action upon which 	the 	PSOA
should have 	filed a 	separate 	charge, 	and having 	failed 	to do 	so,
renders 	the 	charge 	untimely.
Both arguments 	are 	rejected. 	PSOA's 	reaction to 	the
University's change, 	under the facts of this case, 	is 	irrelevant
as 	the 	University's 	action precluded an 	assessment 	of 	PSOA's
conduct. 	It 	is 	the gravamen of 	harm here 	that 	the University
28

took action without 	notice 	to PSOA, 	not 	PSOA's 	failure 	to 	request
bargaining the 	overtime 	issue.
In addition, 	how the decision to terminate 	the overtime
entitlement 	was 	or 	is 	separate 	from the 	decision to 	reduce
staffing 	levels 	is 	known only to the University. 	It presented no
evidence 	of 	such 	separation at 	the 	hearing. 	The 	testimony of
Crowder 	is 	undisputed that 	at 	the 	same 	time 	the 	staffing 	levels
changes were 	implemented, 	the overtime payment 	stopped. 	It
cannot 	be 	discerned 	that 	the 	decision 	to 	terminate 	the 	overtime
payment 	was 	not part 	of 	the 	decision to 	reduce 	staffing 	levels.
Crowder's 	testimony that 	the 	LLNL was 	able 	to provide 	coverage by
the 	officers 	made 	available 	as 	a 	result 	of 	the 	transfer 	to
locations 	outside 	the 	Superblock was 	not 	disputed by any
University 	evidence.
The 	decision 	to 	reduce 	manning 	levels 	was 	predicated upon 	a
determination to reduce 	cost 	of 	security. 	The 	cost 	of payment 	of
overtime 	for 	the 	lunch period was 	saved by 	its 	elimination.
There 	is 	no 	evidence 	to 	support 	the University's 	contention 	that
the 	change was 	not 	a 	"byproduct 	or direct 	consequence 	of 	the
reduction 	in the 	Superblock staffing, 	but 	the 	result 	of 	a
conscious 	decision by management 	that 	it 	would not 	longer pay 	for
the overtime."
At 	hearing, 	and 	inferentially in 	its post-hearing briefs,
the University contends 	that 	it 	was 	not 	given an opportunity to
defend against 	the 	overtime 	issue. 	Yet 	the University never
29

raised the 	issue 	during the 	hearing, 	other than 	following PSOA's
opening 	statement.
At 	the 	time 	the ALJ denied the motion to 	strike, 	the hearing
was 	in 	the 	first 	of 	what 	was 	expected to be 	a 	four day hearing,
during which 	the 	University 	could 	have 	further 	explored 	the
inability to present 	a defense 	to the 	overtime 	issue. 	It 	did
not. 	The 	hearing concluded at 	the end of 	the 	second day. 	The
University did not 	raise 	the 	inability 	to 	defend posture 	before
the 	end of 	the hearing.23
It 	is 	concluded 	that 	the 	University violated 	section 	3571(c)
of 	the 	HEERA when 	it 	refused to meet 	and confer 	over workload and
safety impacts 	of 	the 	change 	in staffing levels, 	and when 	it
unilaterally, 	and without 	notice 	to 	PSOA, 	eliminated the practice
of 	overtime 	payment 	to officers 	who were 	required 	to work 	during
their 	lunch break. 	This 	conduct 	also 	interfered with the
officers 	rights 	to 	be 	represented by their exclusive
representative 	in violation of 	section 3571(a).
REMEDY
Section 	3543.3 	empowers 	PERB 	to
. 	. 	. 	issue a decision and order directing an
offending party to 	cease 	and desist 	from the
unfair practice 	and to 	take 	such affirmative
action, 	including but not 	limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies of
this 	chapter.
23The ALJ 	stated that 	he 	would do whatever he 	could 	to
provide 	sufficient 	opportunity to 	the 	University 	to 	defend 	its
case. 	As noted, 	the University did not 	allude 	to 	the problem
again 	in the balance 	of 	the hearing.
30

It 	has 	been 	found 	that 	the 	University breached 	its
obligation 	to 	meet 	and 	confer 	in 	good 	faith with 	PSOA by 	refusing
to meet 	and 	confer with PSOA about 	the 	effects 	of 	a 	change 	in
staffing 	levels 	on workload and safety, 	in violation of 	section
3571(c). 	The University also breached its meet 	and confer
obligation by unilaterally 	terminating 	the 	practice 	of 	overtime
payment 	for 	lunch time worked by officers 	in the 	Superblock. 	By
the 	same 	conduct, 	the University interfered with the 	right 	of
employees 	to be 	represented- by their 	chosen 	representative 	in
their employment 	relations with the University, 	in violation of
section 3571(a). 	It 	is appropriate to order the University to
cease 	and desist 	from 	such activity 	in 	the 	future.
PSOA requests 	that 	the 	University be 	ordered 	to 	restore 	the
staffing levels 	that prevailed before 	January 5, 	1995. 	It 	has
been 	found, 	however, 	that 	the University was under no obligation
to meet 	and 	confer with 	PSOA about 	the 	decision 	to 	reduce 	the
staffing level within the Superblock. 	Thus, 	no restoration of
the 	status 	quo ante 	is merited.
The University was, 	however, 	obliged to negotiate 	the
effects 	of 	the 	decision to 	reduce 	the 	staffing 	level.
PSOA requests 	back pay 	for 	the 	officers 	who 	remain within
the 	Superblock 	and are no 	longer 	receiving 	the 	one-half 	hour
overtime. 	It 	also requests back pay for those 	officers who were
removed 	from the 	Superblock as 	a 	result 	of 	the 	decision 	to 	reduce
the 	staffing level, 	and as 	a consequence of 	their removal 	from
31

the Superblock, 	no 	longer have 	the opportunity to earn the 	one-
half 	hour overtime.
As 	to the 	first group, 	those officers 	remaining in the
Superblock, 	it 	is 	appropriate 	to order the University to make
whole 	those 	officers within the 	Superblock, 	affected by the
change. 	(See Laguna Salada Union School District 	(1995) 	PERB
Decision No. 	1103, 	and cases cited therein.) 	They shall be made
whole 	for overtime 	lost 	since 	the 	change 	was put 	into place.
Such back pay shall 	be 	augmented by interest 	at 	ten 	(10) 	percent,
per annum, 	to the 	time of payment.
As 	to the 	second group of 	officers, 	those who 	lost 	the
opportunity 	for 	the 	overtime 	payment 	because 	of 	the 	transfer 	out
of 	the 	Superblock as 	a result 	of 	the 	reduction 	in 	staffing
levels, 	a 	standard back pay order 	is 	inappropriate because 	it 	has
been 	found 	that 	the 	University did have 	the 	sole 	authority 	to
make 	the 	decision to reduce 	the 	staffing 	level 	within the
Superblock. 	To 	award a 	standard back pay to this 	group of
officers 	would usurp 	the 	University's 	authority 	to 	reduce 	the
staffing level. 	As has been found, 	however, 	the University did
have 	an obligation 	to bargain the 	effects 	of 	the 	decision to
reduce the 	staffing level. 	One 	such effect 	of 	the decision to
reduce 	the 	staffing 	level 	was 	to 	cause 	officers 	whose 	Superblock
positions 	were 	eliminated to 	lose 	overtime 	opportunity. 	In 	this
instance, 	in order to restore 	the parties 	to a 	somewhat 	closer
bargaining equality, 	a 	special 	back pay order is 	appropriate.
(See 	Placentia Unified School 	District 	(1986) 	PERB Decision
32

No. 	595; 	Transmarine Navigation Corporation 	(1968) 	170 NLRB 	389
[67 LRRM 1419] . )
It 	is 	also 	appropriate 	that 	the University be 	required 	to
post 	a notice 	incorporating the 	terms 	of 	the order. 	The Notice
should be 	subscribed by an 	authorized 	agent 	of 	the 	University,
indicating that 	it will 	comply with the 	terms 	thereof. 	The
Notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such a notice will
provide 	employees 	with notice 	that 	the 	University has 	acted 	in 	an
unlawful 	manner 	and 	is being 	required 	to 	cease 	and desist 	from
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
purposes 	of 	HEERA that 	employees 	be 	informed of 	the 	resolution of
the 	controversy and will 	announce 	the 	readiness 	of 	the 	University
to 	comply with 	the 	ordered 	remedy. 	(Davis 	Unified 	School
District, 	et al. 	(1980) 	PERB Decision No. 	116; 	Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing findings of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in the 	case, 	and pursuant 	to the Higher
Education Employer-Employee Relations Act 	(Act), 	Government 	Code
section 3563.3, 	it 	is hereby ordered that 	the Regents of 	the
University of 	California 	(Lawrence 	Livermore 	National 	Laboratory)
(University) 	and its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and refusing to meet 	and confer with the
Lawrence 	Livermore 	National 	Laboratory 	Protective 	Service
Officers Association 	(PSOA) 	about 	the 	effects of 	a change 	in
33

staffing 	levels 	on workload 	and 	safety, 	and by unilaterally
eliminating overtime payment 	for 	lunch periods 	for officers
inside 	the 	Superblock.
2. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	PSOA 	in 	their 	employment 	relations 	with 	the
University.
B.. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Pay to officers within the 	unit 	working within
Superblock 	one-half 	hour 	overtime 	consistent 	with 	the 	past
practice, 	and in addition, 	pay to 	such officers back pay in the
amount 	of 	one-half 	hour overtime 	per work day 	from the 	time 	the
practice 	was 	curtailed. 	Retroactive 	sums 	paid to 	such employees
shall 	be 	subject 	to 	interest 	at 	the 	rate 	of 	10 	percent per annum.
2. 	Beginning 	10 	days 	after this 	Proposed Decision
becomes 	final, 	pay to officers who would have worked 	in the
Superblock 	and would have 	earned one-half 	hour overtime, 	but 	for
the 	elimination of 	the 	in-Superblock positions, 	the 	rate 	of pay
for the 	overtime 	they would have 	earned until: 	(1) 	the 	date 	the
University bargains 	to 	agreement 	with 	PSOA regarding 	the 	impact
of 	its 	decision 	to 	reduce 	the 	staffing 	level 	within the
Superblock; 	or 	(2) 	the date 	the University and PSOA meet 	and
confer to a bona fide 	impasse; 	or 	(3) 	the 	failure of 	PSOA to
request 	bargaining within 	10 	days 	after this 	Decision 	is 	final 	or
to 	commence negotiations within 	5 	working days 	of 	the
University's notice of 	its desire to meet and confer; 	or 	(4) 	the
subsequent 	failure 	of 	PSOA to meet 	and confer 	in good 	faith.
34

3. 	Within ten 	(10) 	working days of 	service of this
proposed decision, 	post 	at 	all work 	locations 	at 	LLNL where
notices 	to employees 	customarily are placed, 	copies 	of 	the Notice
attached as 	an appendix hereto. 	Such posting 	shall 	be maintained
for a period of 	thirty 	(30) 	consecutive workdays. 	Reasonable
steps 	shall 	be 	taken to 	ensure 	that 	said Notices 	are 	not 	reduced
in size, 	altered, 	defaced or covered by any other material.
4. 	Notify the 	San Francisco regional 	director of 	the
Public Employment Relations Board, 	in writing, 	of 	the 	steps 	the
University of 	California 	has 	taken 	to 	comply herewith 	in
accordance 	with 	her 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	323 05, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with 	the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" 	when
actually received before 	the 	close 	of business 	(5:00 	p.m.) 	on the
last 	day set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	." 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
35

concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on 	a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.
Gary Gallery
Administrative Law
36