Regents of the University of California (Society of Professional Scientists and Engineers) (PERB 1316H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOCIETY 	OF 	PROFESSIONAL
SCIENTISTS 	AND 	ENGINEERS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-461-H
PERB Decision No. 	1316-H
February 24, 	1999
Appearances: 	Andrew Thomas Sinclair, 	Attorney, 	for Society of
Professional Scientists and Engineers; 	Edward M. 	Opton, 	Jr.,
University Counsel, 	for Regents 	of 	the University of 	California.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	is before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Society of 	Professional
Scientists 	and Engineers 	(SPSE) 	to an administrative 	law judge's
(ALJ) 	proposed decision 	(attached). 	The ALJ found that 	the
Regents 	of 	the University of 	California 	(University) 	did not
violate 	section 3571(a) 	of 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA)1 by unilaterally 	implementing a wholesale
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Section 3571 provides, 	in pertinent part:
It 	shall 	be unlawful 	for the 	higher education
employer to do any of 	the 	following:
(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
)
)
)
)
)
)
)
)
)
)
)
________________ )

change 	in personnel 	policies 	which 	covered 	certain 	employees 	at
the 	Lawrence 	Livermore National 	Laboratory.
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
The 	Board has 	reviewed the 	entire 	record, 	including
the ALJ's proposed decision, 	SPSE's 	exceptions and the
University's 	response. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the decision of 	the 	Board 	itself.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in 	Case
No. 	SF-CE-461-H 	is 	hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey 	and Member Dyer 	joined 	in 	this 	Decision.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOCIETY OF 	PROFESSIONAL
SCIENTISTS AND 	ENGINEERS,
Charging 	Party,
v.
REGENTS 	OF 	THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-461-H
PROPOSED DECISION
(9/8/98)
Appearances: 	Andrew Thomas Sinclair, 	Attorney, 	for Society
of 	Professional 	Scientists and Engineers; 	Edward M. 	Opton,
University Counsel, 	for Regents of 	the University of 	California.
Before 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
The 	Society of 	Professional 	Scientists 	and Engineers 	(Union
or SPSE) 	commenced this 	action on October 11, 	1996, 	by filing an
unfair practice 	charge against 	the 	Regents 	of 	the University of
California 	(University). 	On February 3, 	1997, 	the Office of
General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	issued a 	complaint 	alleging that 	the University
unilaterally 	implemented 	a 	wholesale 	change 	in 	personnel 	policies
which 	covered 	certain 	employees 	at 	the 	Lawrence 	Livermore
National 	Laboratory 	(Laboratory). 	These employees are
represented here by SPSE, 	an organization which does 	not 	have
exclusive 	representative 	status. 	Specifically, 	the 	complaint
alleges:
Before July 1, 	1996, 	Respondent's policy
concerning written 	employment 	practices 	for
employees 	non-exclusively 	represented 	by
Charging 	Party was 	that 	such employees 	were
covered by policies 	contained 	in 	the 	Staff
)
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•

Personnel 	Policies 	as well 	as 	the 	Lawrence
Livermore National 	Laboratory 	"local 	manual,"
which 	contained 	local 	policy modifications
approved by Respondent.
On or about July 1, 	1996, 	Respondent 	changed
this 	policy by eliminating 	the 	policies
contained 	in the 	Staff 	Personnel 	Policies.
This conduct, 	the complaint 	alleged, 	violated the Higher
Education Employer-Employee 	Relations Act 	(HEERA) 	section
3571 (a).1
The University answered the 	complaint 	on February 19, 	1997,
generally 	denying 	it 	committed 	a 	violation of 	HEERA and 	asserting
a number of 	affirmative 	defenses. 	Denials 	and defenses well 	be
addressed below, 	as necessary.
An 	informal 	conference was 	conducted by a 	PERB 	agent 	on
June 20, 	1997, 	but the dispute was not resolved.
On February 19, 	1998, 	the Union moved to amend the 	complaint
to 	include 	an 	allegation 	that 	the 	Laboratory eliminated a 	class
of 	employees 	known as 	"Term Appointees" 	and created 	in 	its place
a new class 	of 	employees 	known as 	"Flexible 	Status 	Employees;"
'HEERA is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Unless otherwise 	indicated, 	all 	statutory references 	are 	to the
Government 	Code. 	Section 3571 	states 	in relevant part:
It 	shall 	be unlawful 	for the 	higher education
employer to do any of 	the 	following:
(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.
N	2

among other things, 	employees 	in the 	latter class have no access
to 	the grievance procedure 	and may be 	terminated at 	will. 	This
action, 	the motion alleged, 	was one 	result 	of the earlier
decision which made 	the 	University-wide 	Staff 	Personnel 	Policy
inapplicable 	to the Laboratory. 	Specifically, 	the Union alleged,
due 	to the elimination of 	the 	Staff 	Personnel 	Policy, 	proposed
changes 	such as 	this 	at 	the Laboratory no 	longer had to be
considered 	in 	light 	of University-wide 	personnel 	policies.
On February 25, 	1998, 	the eve of the formal hearing, 	the
Union 	filed a 	second motion to amend the 	complaint. 	The motion
alleged the University, 	on July 1, 	1996, 	unilaterally abolished
its 	practice 	of 	conforming 	local 	Laboratory personnel 	policies 	to
University-wide 	policies 	such as 	the 	Staff 	Personnel 	Policy.
During 	the 	first 	day of 	hearing, 	the undersigned denied the
Union's 	first 	motion 	to 	amend the 	complaint 	as 	merely an effect
of 	the 	allegedly unlawful 	conduct 	that 	is 	reflected 	in 	the
original 	complaint. 	Over the University's objection, 	the 	second
motion 	to 	amend 	the 	complaint 	was 	granted as 	encompassing a
practice 	and 	theory closely related 	to 	the 	original 	complaint.
In addition, 	the University moved to dismiss 	the 	complaint
at 	the outset of the 	first day of hearing. 	In essence, 	the
University argued 	that 	its 	internal 	procedure 	or 	standards 	(for
example, 	the University-wide Staff 	Personnel Policy) 	against
which proposed 	changes 	in Laboratory policies 	are 	evaluated 	is 	a
managerial prerogative. 	As 	such, 	it 	is not 	a term or condition
3
3

of 	employment 	that 	falls within the 	scope of representation. 	The
motion was 	taken under 	submission 	and 	the 	hearing 	commenced.
During two days 	of 	formal 	hearing 	in Oakland on February 26-
27, 	1998, 	the Union completed its case-in-chief and the
University began to present 	its 	case. 	The 	hearing was 	scheduled
to resume on April 	27, 	1998. 	However, 	in the midst of a dispute
over a subpoena duces 	tecum 	(SDT) 	filed by the Union, 	the
University on 	that 	date 	renewed 	it's 	original 	motion 	to 	dismiss,
with the 	added argument 	that 	the Union, 	during its 	case-in-chief,
had 	established no 	change 	in working 	conditions.2 Having heard
the Union's 	case-in-chief, 	the undersigned concluded that, 	as a
threshold matter, 	it 	would be prudent 	to address 	issues 	raised by
the University's 	motion to dismiss prior 	to 	addressing
outstanding 	issues 	related to 	the 	SDT.
On June 	8, 	1998, 	the Union submitted its written opposition
to 	the University's 	motion. 	With receipt 	of 	the University's
response on July 2, 	1998, 	the matter was 	submitted for decision.
2Shortly before 	the 	hearing, 	the Union had 	filed a 	lengthy
SDT essentially seeking documents 	it 	claimed would show that, 	as
of June 	30, 	1996, 	the Staff 	Personnel 	Policy applied to the
Laboratory and/or 	a 	practice 	existed under which 	the 	Laboratory
conformed 	its 	local 	policies 	to 	the 	Staff 	Personnel 	Policy. 	The
University moved 	to 	quash 	the 	SDT 	and the undersigned 	took 	the
motion under 	submission while 	the 	Union 	agreed 	to proceed with
testimony. 	It was understood that 	the Union would be permitted
to 	revive 	its 	SDT at 	any subsequent 	time 	during the 	hearing 	if 	it
deemed the 	documents 	relevant. 	During the 	University's 	case-in-
chief, 	the Union renewed its 	request 	for documents pursuant 	to
the 	initial 	SDT.
4

JURISDICTION
The 	University 	is 	a higher 	education employer within 	the
meaning of 	section 3562(h). 	SPSE is an employee organization
within the meaning of 	section 3562(g). 	SPSE is not 	an exclusive
representative within the meaning of 	section 3562 (j).
FINDINGS 	OF 	FACT
University 	Policies
Three 	sets 	of University personnel 	policies 	are 	relevant
here. 	First, 	the Staff Personnel 	Policy 	(SPP) 	is a comprehensive
personnel manual 	covering a wide 	range 	of 	employment 	conditions.3
The 	SPP became 	effective 	sometime prior to 	the 	enactment 	of 	HEERA
and is University-wide in application. 	In relevant part, 	section
101.1 	of 	the SPP provides:
Staff 	Personnel 	Policies 	delineate 	the
employment 	relationship 	between 	staff
employees 	and 	the 	University of 	California.
These 	policies 	do not 	apply to 	employees 	in
the University Management 	Program, 	other
employees 	covered by title 	codes 	0001 	through
3 999, 	or to employees who are covered by a
Memorandum of 	Understanding with 	an 	exclusive
bargaining 	agent.
3Specifically, 	a recent version of 	the 	SPP covered
discrimination in employment, 	affirmative action, 	recruitment,
selection, 	partial-year positions, 	per diem positions, 	moving
expenses, 	probationary period, 	performance evaluations, 	employee
development, 	corrective action, 	grievances, 	administrative
review, position classification, 	pay, 	hours, 	overtime, protective
clothing and equipment, 	holidays, 	vacation, 	sick leave, 	work-
incurred injury or 	illness, 	military leave, 	administrative 	leave
with pay, 	personnel records, 	attendance records, 	resignation,
termination and reduction 	in time 	from casual positions, 	release
of 	employees who have 	not 	attained regular status, 	dismissal 	of
employees, 	rehabilitation, 	medical separation, 	death payments,
retirement, 	and phased retirement 	career positions.
1
55

a. 	The 	President 	of 	the University may
approve 	modifications 	of 	Staff 	Personnel
Policies 	for staff 	employees 	of 	the 	Lawrence
Berkeley Laboratory, 	the 	Lawrence 	Livermore
National 	Laboratory, 	and the Los Alamos
National 	Scientific 	Laboratory.
b. 	Unless 	approved modifications provide
otherwise, 	Laboratory Directors 	have 	the 	same
responsibilities 	and authorities 	as 	those
delegated 	in Staff 	Personnel 	Policies 	to
Chancellors.
Effective July 1, 	1996, 	the SPP became inapplicable to most
University employees. 	Another set 	of personnel policies,
discussed below, 	replaced the 	SPP on that 	date. 	The parties 	here
dispute 	whether 	the 	SPP 	applied 	to 	Laboratory employees 	prior 	to
July 1, 	1996. 	The Union claims 	the 	SPP 	covered Laboratory
employees prior to that date, 	while 	the University contends 	the
opposite.
The 	second set 	of personnel 	policies 	is 	in the 	form of 	a
local manual 	applicable 	to Laboratory employees. 	It 	is 	known as
the 	Personnel 	Policies and Practices Manual 	(Local 	Policy).
Prior to 	1979, 	a 	loose collection of personnel policies 	and
administrative procedures 	existed as 	a 	supervisor's 	handbook. 	In
1979, 	the personnel 	polices were 	separated 	from the
administrative procedures 	and placed 	in 	the 	Local 	Policy. 	The
supervisor's 	handbook has 	not 	been 	in effect 	since 	1979.
Tailored to 	the Laboratory, 	the 	Local 	Policy manual 	covers 	a wide
66

range 	of 	employment 	conditions 	for employees who work there.4
The 	1998 	version of 	the 	Local 	Policy manual 	states 	that
the purpose of 	this Manual 	is 	to provide
Lawrence 	Livermore 	National 	Laboratory 	(LLNL)
personnel 	policies 	and procedures 	pertaining
to 	the 	employment 	relationship between an
employee 	(other 	than 	those participating 	in
the 	University of 	California 	Executive
Program) 	and the Laboratory.
Personnel 	policies 	can be 	amended only by the
Director with 	the 	concurrence 	of 	the
President 	of 	the 	University of 	California
(UC) 	and, 	as appropriate, 	the Department of
Energy 	(DOE). 	Exceptions to the policies
require the approval of 	the Director and, 	as
appropriate, 	the President of 	the University
and/or DOE.
The 	Local 	Policy manual 	remains 	in effect 	at 	the 	Laboratory.
The 	third relevant 	set 	of personnel policies was
implemented by the University on July 1, 	1996, 	as part of a
sweeping Human Resources Management 	Initiative 	(Initiative).
These policies 	are 	known as 	the 	Personnel 	Policies 	for 	Staff
Members 	(PPSM).5 The 	Initiative was 	designed to 	redirect 	the
4The most 	recent 	version of 	the 	Local 	Policy covers
nondiscrimination, 	affirmative action, 	recruitment, 	selection,
hiring, 	promotion and transfers, 	employee conduct 	(including
personal 	conduct, 	acceptance of gifts and favors, 	outside
employment, 	conflict of interest, 	privileged information, 	etc.),
employee performance, 	corrective action, 	fitness for duty,
employee records, 	benefits 	(including holidays, 	vacation, 	sick
leave, 	use of 	leave 	for work-incurred injury or illness, 	military
leave, 	leave without pay, 	retirement, 	group insurance plans,
etc.), 	grievances and 	administrative review, 	employee
development, 	separation 	(including resignation, 	layoff,
dismissal, medical separation, retirement, etc.), work schedules,
pay, 	time reporting, 	rehabilitative 	services 	(including
vocational rehabilitation, 	and reasonable accommodation, 	etc.).
5The PPSM covers appointments, 	affirmative action, 	leaves,
classification of positions, 	complaint resolution, 	conflict of
interest, 	corrective action, 	death payments, 	holidays, 	awards,
77

management 	of human resources; 	the 	PPSM contains 	the 	actual
policies 	developed by the 	Initiative. 	In relevant part, 	the 	PPSM
provides:
These policies 	delineate 	the 	employment
relationship between 	staff 	members 	and 	the
University of 	California. 	These policies
describe certain rights, 	benefits and
expectations 	which 	encourage 	professionalism,
service, 	and contribution. 	Management
retains 	all 	other rights 	and prerogatives 	in
order to manage 	the University so that 	it may
attain its missions.
Employees 	at 	the Department 	of 	Energy 	(DOE)
Laboratories 	are 	covered by approved
variations 	of 	these 	and prior policies,
including provisions 	required by 	the
contracts between the University and DOE, 	or,
in the case of 	Senior Managers, 	the policies
in Appendix 	II 	and other 	staff policies 	as
specified 	in the 	Introduction 	thereof.
Employees 	at 	the 	Laboratories 	should 	consult
local 	policy documents 	for 	information 	about
policies 	that 	apply to 	them.
As 	noted above, 	the 	PPSM superseded the 	SPP 	for most University
employees on July 1, 	1996.
The 	PPSM 	includes 	some 	benefits 	that 	go beyond those 	found
in the SPP or the Local 	Policy manual. 	For example, 	an expanded
grievance procedure 	was 	the 	most 	frequently mentioned of 	these
rights 	during the 	hearing. 	New benefits 	in the 	PPSM were not
extended 	to 	Laboratory employees 	represented here 	by the 	Union.
leaves, 	medical separation, 	discrimination, 	overtime, 	per diem
positions, 	performance appraisal, 	probationary period, 	protective
clothing, 	reasonable accommodation, 	recruitment, 	reduced fee
enrollment, 	release of casual 	and probationary employees, 	salary,
shifts, 	personnel records, 	termination, 	and work-incurred illness
and 	injury.
8

Overall 	authority to make 	changes 	in personnel 	policies 	has
not 	been 	delegated 	from the 	Office 	of 	the 	President 	to 	the
Laboratory level. 	Laboratory officials 	have no 	authority to make
changes 	in local personnel policies. 	Final 	authority to make
changes 	in the Local 	Policy rests 	in the Office of 	the 	President.
A change 	in Local 	Policy occurs 	only after a request 	is made 	and
the Office of 	the 	President 	approves 	it, 	according to Lubbe Levin
(Levin), 	University assistant vice president 	for human resources.
During this process, 	Levin testified, 	"key factors" 	are
considered as 	tools 	in determining whether 	to 	change 	the 	Local
Policy. 	Prior to July 1, 	1996, 	one 	such factor was 	to evaluate a
change as 	it 	related to other University-wide policies, 	including
the 	SPP. 	She described the 	SPP as 	a 	"yardstick" 	against which
proposed changes 	in the 	Local 	Policy were 	considered. 	Now that
the 	PPSM has been 	implemented, 	Levin said, 	the yardstick has 	not
changed 	in 	substance.
Susan Angstadt 	(Angstadt), 	staff relations representative at
the 	Laboratory, 	testified that 	there 	is no provision 	in the 	SPP
for which there 	is 	not 	a 	corresponding provision 	in 	the 	Local
Policy manual.6 However, 	Angstadt 	testified further, 	there have
been a 	few instances where policies 	in the 	SPP 	have not been
6The University points 	out 	in 	its 	brief 	that 	there 	are
subjects 	in the 	SPP 	that 	also 	are 	covered in the 	Local 	Policy,
but 	the 	two policies are 	incongruent 	on the 	same 	subject. 	For
example, 	both provide 	for notice 	in the event of 	layoff, 	but 	the
specific 	requirements 	in the policies 	are not 	identical. 	Also,
the 	Local 	Policy covers 	some 	subjects 	that 	are 	not 	covered 	in 	the
SPP. 	For example, 	the Local 	Policy provides 	for severance pay,
while 	the SPP does not.
9

followed at 	the Laboratory. 	As 	examples, 	she cited family
medical 	leave, 	use of 	sick/vacation leave 	for exempt 	employees,
and staff 	awards. 	Levin 	similarly testified that 	between 	1979
and 1996 	there were 	changes 	in the 	SPP that were not
automatically incorporated 	into 	the 	Local 	Policy manual; 	she 	also
said there were 	changes 	in the 	SPP that were 	incorporated 	into
the 	Local 	Policy during 	that 	period.
Application of 	the 	three policies 	described above 	lies 	at
the center of 	this dispute. 	As discussed below, 	the Union
contends 	that 	the 	SPP 	has 	applied to 	Laboratory employees 	since
it was promulgated prior to the 	enactment 	of HEERA, 	and the 	Local
Policy was 	conformed to 	changes 	in the 	SPP 	from 	1979 	until 	July
1, 	1996. 	According to the Union, 	the University's unilateral
substitution of 	the 	PPSM for the 	SPP 	in 	1996, 	the refusal 	to
apply the 	PPSM to Laboratory employees, 	and the 	elimination of 	an
established practice 	under which 	the 	Local 	Policy was 	conformed
to 	changes 	in University-wide 	policy violated employee 	rights
under HEERA. 	It 	is 	not 	disputed that 	the University gave 	no
notice 	to 	employees 	when 	the 	PPSM was 	implemented on July 	1,
1996.
The 	University takes 	the position that 	it 	has 	no 	obligation
to provide 	notice 	and afford employees 	the 	opportunity to meet
and discuss 	the 	internal 	procedure 	or 	standards 	(such as 	the 	SPP
or the PPSM) 	it uses to promulgate personnel policies at 	the
Laboratory. 	Moreover, 	the University contends 	the 	SPP has not
applied to Laboratory employees 	since 	about 	1979, 	and therefore 	a
10

substitution of 	the 	PPSM 	for 	the 	SPP would not 	constitute 	the
kind of 	change 	that 	triggers 	the meet 	and discuss 	obligation.
Application 	of 	University 	Policies
Richard White 	(White) 	worked at 	the 	Laboratory as 	a
physicist 	from 1956 	until 	his 	retirement 	in 	1996. 	He 	continues
to work 	there 	as 	a 	"participating guest." 	White 	helped 	found
SPSE 	in 	1973 	and has been active 	in the Union since 	that 	time,
frequently 	serving as 	an officer and grievance 	committee 	member.
As 	a Union officer he 	has 	met 	with Laboratory and University
representatives 	regarding policy changes, 	and he 	has 	represented
employees 	in grievance matters.
Bruce Kelly 	(Kelly) 	has worked at 	the Laboratory as 	a
computer 	scientist 	since 	1975. 	He 	too has 	held Union office 	on
numerous 	occasions 	and 	frequently has 	met 	with Laboratory and
University 	representatives 	regarding 	application 	of 	University
policies 	at 	the 	local 	level.
White 	and 	Kelly 	testified 	that 	the 	SPP 	applied 	to 	Laboratory
employees 	from before 	the enactment 	of HEERA until 	July 1, 	1996.
They 	said 	the 	SPP 	continued to 	apply to 	the 	Laboratory after
1979, 	even though the Local 	Policy was 	implemented at 	that 	time.
According to White, 	no notice 	that 	the Local 	Policy would
supplant 	the 	SPP was 	given 	in 1979. 	He 	said 	"it was presented to
us 	at 	that 	time 	as 	essentially a 	clarification 	and codification
of 	the policies 	that 	were 	in effect." 	He 	said neither the
University nor 	the 	Laboratory had ever 	taken a position 	in
11

dealings with the Union that 	the 	Local 	Policy 	is 	a 	so-called
"stand alone" 	policy.
In the past, 	the University sought 	input 	from Laboratory
employees 	about 	changes 	in the 	SPP because 	any change would
become part of the Local 	Policy, 	according to White. 	Hence, 	it
came 	as 	a 	surprise when the University took the position 	in 	the
instant 	unfair practice 	case 	that 	the 	SPP 	had not 	applied at 	the
Laboratory since 	1979.
The Union points 	to a number of 	specific 	incidents 	where
employees were 	consulted about 	proposed changes 	in the 	SPP, 	or
the University sought 	an exception to 	the 	SPP. 	The Union
contends 	these 	incidents 	confirm that 	the 	SPP 	applied 	to 	the
Laboratory after 	1979.
One example, 	according to White, 	involves a recent
recommendation by the 	Laboratory to 	the 	Office 	of 	the 	President
to modify a 	layoff policy. 	The 	then current policy was 	to 	lay
off 	employees 	in reverse 	order of 	seniority except 	that 	a
department 	head 	could 	retain 	employees 	who possess 	special
skills, 	knowledge, 	or abilities 	that 	are not possessed by other
employees 	in the 	same 	classification with greater 	seniority, 	and
are necessary to perform ongoing 	functions. 	The 	Laboratory
requested a modification of 	the policy to permit 	the 	layoff 	of 	a
certain class 	of 	employees 	(scientists 	and engineers) 	based on
skills, 	knowledge, 	and abilities 	that are necessary to perform
future work of 	the 	unit. 	Employees were 	given notice 	and the
Union provided input. 	On January 25, 	1996, 	University President
12

Richard Atkinson 	approved 	the 	recommendation with 	the
understanding 	that 	Laboratory employees 	were 	given 	an 	opportunity
to comment.
Another example, 	in 1982, 	concerned a change in
sick/vacation 	leave 	for work-incurred 	injury or 	illness. 	The
change was 	announced by Jack Russ 	(Russ), 	then manager of 	human
resources at 	the Laboratory, 	in an administrative memo. 	In that
instance, 	the policy revision allowed employees 	to 	return to work
part-time 	and 	continue 	to be 	eligible 	for extended 	sick 	leave.
Although Russ' 	memo refers 	in general 	terms to a change 	in
University policy, 	as opposed to the 	SPP, 	White 	testified that 	he
is 	certain the 	change 	referred to the 	SPP.7
The University, 	however, 	contends 	the SPP did not apply to
the Laboratory during the relevant 	time period. 	Thus, 	it
disputes 	that 	these 	and other 	changes 	in University policy
concerned modifications 	of 	the 	SPP.
It 	is unnecessary to resolve 	this 	dispute 	or make 	findings
on 	the 	evidence 	relied upon by the 	Union at 	the 	hearing and 	its
subsequent 	written offer of proof 	in 	support 	of 	its 	argument
that, 	prior to July 1, 	1996, 	the SPP applied to the Laboratory
and the 	Local 	Policy was 	conformed to 	reflect 	changes 	in the 	SPP.
As more 	fully discussed 	later 	in this proposed decision, 	for
purposes 	of 	ruling on the University's motion to dismiss, 	it will
7Other examples 	include 	a 	1983 	proposal 	for a new sexual
harassment policy and a 	change 	in the 	scope 	of 	the 	grievance
procedure in the SPP to include layoff, 	termination, 	and
disciplinary procedures.
13

be 	assumed without 	deciding 	that 	the 	SPP 	applied 	to Laboratory
employees between 1979 	and July 1, 	1996, 	and the Local 	Policy was
conformed to 	reflect 	changes 	in 	the 	SPP 	during 	that 	period.8
As noted, 	the 	PPSM replaced the 	SPP on July 1, 	1996, 	for a
large 	number of University employees, 	but 	the 	PPSM was not made
applicable 	to 	Laboratory employees. 	The 	PPSM contained new
benefits 	for 	covered University employees 	that 	were 	not 	extended
to these Laboratory employees. 	For example, 	White testified, 	the
scope 	of 	binding 	arbitration 	in 	the 	PPSM was 	expanded 	to 	include
new issues. 	He 	said the Union considered this 	to be 	a 	"very
important 	right 	for the employees."
The 	effect 	of 	eliminating application of 	the 	SPP 	at 	the
Laboratory, 	according to White, 	was 	that 	the Office of the
President, 	which acted as 	a 	"watchdog" 	with respect 	to 	local
personnel policy changes, 	would not 	have 	a 	"yardstick" 	such as
the 	SPP to measure 	such changes 	against. 	Laboratory employees,
he 	said 	further, 	"tend to be 	subject 	to pressure 	from the
Department 	of 	Energy 	in particular which blows 	with the political
winds 	and so that 	has been a concern for employees, 	that 	the
University has 	played 	a 	constructive 	positive 	role 	in maintaining
the quality of 	the personnel policies."
8As 	a practical matter, 	it 	appears 	that 	the Local 	Policy was
the primary personnel 	policy used 	at 	the 	Laboratory prior 	to 	July
1, 	1996. 	Asked if he 	"refer[ed] 	to" 	the SPP in his dealings with
the Laboratory, 	White replied 	"yes, 	though we tended to use 	the
parallel parts 	in what was 	called the 	[Local 	Policy]." 	Also,
most 	grievances 	at 	the 	Laboratory were 	filed under 	the 	Local
Policy.
14

In his 	testimony, 	White 	summed up the 	impact 	of 	the
complained of 	University action 	as 	follows:
The 	change 	is 	that we were previously
measured 	against 	University 	Staff 	Personnel
Policies 	which applied 	to 	the 	staff 	of 	the
University and we were part 	of 	the 	staff 	of
the University, 	okay. 	Now the University has
adopted a new set 	of policies 	and we 	are no
longer measured against 	those 	new policies 	as
evidenced by the 	fact 	that 	the 	University
changed the 	grievance 	policies 	in 	such a way
that 	we 	view as 	benefitting other employees
and 	the 	corresponding 	changes 	are 	not 	picked
up by the Laboratory, 	although in the past
when 	changes 	in the 	exact 	same 	policy were
made of 	the 	same nature, 	the Laboratory did
adopt 	those 	same policies.
Since July 1, 	1996, 	the Laboratory has contemplated a series
of changes 	in its Local 	Policy. 	According to White, 	one 	change
would eliminate 	a 	classification of 	employees 	known 	as 	term or
restricted 	appointees 	and replace 	it 	with a 	classification known
as 	flexible term employees. 	White 	said that, 	unlike
restricted/term appointees, 	flexible 	term employees 	are
terminable at will on 3 0 	days notice with no access to appeal
rights 	through 	either 	the 	grievance 	or 	administrative 	review
procedure.
Notice 	of 	this 	proposed 	change 	was 	given to 	employees
through a Laboratory publication and 	its website. 	Some 	employees
responded with 	comments 	and 	the Union 	in 	its 	newsletter published
several 	employee 	opinions 	critical 	of 	the 	change.
It 	is 	the Union's 	contention that 	this 	change deviates 	from
the 	SPP 	and the 	PPSM. 	It would not 	have been implemented 	if
either of 	those 	two policies 	applied at 	the 	Laboratory because,
15

according to 	the 	theory advanced by the Union, 	the University
would not 	have 	granted such an exception.
ISSUE
Whether 	the 	University breached 	its 	obligation 	to 	provide
notice and, 	upon request, 	meet 	and discuss changes 	in terms and
conditions 	of 	employment 	with Laboratory employees?
CONCLUSIONS 	OF 	LAW
In its brief, 	the Union observes 	that 	the allegations at
issue here, 	properly considered, 	are as follows:
The charge, 	as amended, 	boils down to the
allegation that 	(1) 	respondent 	stopped
applying University-wide 	personnel 	policies
to Laboratory employees on July 1, 	1996, 	thus
depriving 	them of 	significantly 	expanded
rights, 	which became effective that 	same day;
and 	thereby 	removing protection 	for 	the
"academic 	environment" 	which University-wide
policies 	had provided 	and 	allowing the
Laboratory 	to pursue 	policies 	which
significantly 	diminish 	employee 	protection
(e.g., 	the Flexible Employee policy) 	without
having 	to 	justify their 	requests 	as
modifications 	to University-wide policies,
and 	(2) 	that 	respondent 	abrogated a long-
standing 	and established practice 	of
conforming 	Laboratory personnel 	policies 	to
University-wide 	personnel 	policies 	on June
30, 1996.
The 	theory underlying 	these 	allegations 	is 	one 	of 	unilateral
change. 	The Union argues 	that 	the University has 	altered terms
and 	conditions 	of 	employment 	without 	affording 	employees 	notice
and 	an opportunity to have 	their 	chosen 	representative 	meet 	and
discuss 	the changes.
Applying rules 	of 	statutory construction, 	the Union 	first
contends 	that 	the plain 	language 	of 	the 	SPP 	indicates 	that policy
16

covers Laboratory employees. 	The 	language 	in the PPSM, 	the Union
contends 	further, 	indicates 	that 	Laboratory policies 	are 	subject
to 	the 	newly 	implemented University-wide policy, 	although the
Local 	Policy may constitute 	an approved variation. 	By adopting
the 	PPSM 	in 	1996 	as 	a University-wide personnel policy, 	while
declining to 	extend 	its 	coverage 	to the 	Laboratory, 	the
University unilaterally has 	implemented 	a 	wholesale 	"approved
variation."
In addition, 	the Union argues 	that 	the 	evidence does not
support 	a 	claim that 	the 	Local 	Policy supplanted the 	SPP 	in 	1979.
In fact, 	the Union takes 	the position that 	it has presented
substantial 	evidence 	that 	the 	SPP was 	never 	supplanted by the
Local 	Policy.
With respect 	to effects 	of 	the 	alleged unilateral 	change,
the 	Union argues 	that 	the 	elimination of 	University-wide 	policy
against 	which 	local 	policies 	are 	judged constitutes 	a 	departure
from long-existing practice. 	The Union asserts 	that 	the
elimination of 	the 	University-wide policies 	and 	the 	corresponding
elimination of 	the 	expectation 	that 	Laboratory policies 	will
conform to 	the 	SPP or the 	PPSM 	is 	the 	core unilateral 	change 	at
issue here.
In response, 	the University first points out 	that 	the 	theory
of 	the complaint 	is one of unilateral 	change, 	but 	argues 	that 	the
Union has 	failed 	to 	identify a 	single 	change 	in a 	term or
condition of 	employment 	for Laboratory employees. 	According to
17

the University, 	this 	also 	is 	strong evidence that 	the 	SPP did not
apply at 	the Laboratory as of July 1, 	1996.
The 	University further argues 	that 	use 	of 	a University-wide
policy as 	a 	"yardstick" 	in 	adopting or rejecting proposed 	changes
in the 	Local 	Policy 	is not 	a 	term or 	condition of 	employment 	that
falls within the meet and discuss obligation. 	Rather, 	the
University contends, 	the 	standards 	or policies used to evaluate
proposed 	changes 	at 	the 	Laboratory 	fall 	within 	an employer's
prerogative 	and 	changes 	therein need not 	be 	noticed and made 	the
subject 	of 	discussions with the Union or employees.
The 	University next 	argues 	that 	application of 	the 	PPSM to
the 	Laboratory would 	itself 	constitute 	an unfair practice.
Because 	some 	terms 	and conditions 	of 	employment 	in the 	PPSM are
different 	than those 	in 	force 	at 	the Laboratory, 	wholesale
implementation 	of 	the 	PPSM 	at 	the 	Laboratory would have 	subjected
the 	University to 	an unfair practice 	charge.
Lastly, 	the University takes 	issue with the 	evidence
presented by the Union 	in 	its 	attempt 	to 	show the 	SPP 	applied at
the Laboratory as of June 	30, 	1996. 	After a point-by-point
analysis, 	the University concludes 	that 	evidence 	the 	SPP was 	in
effect at the Laboratory as of June 30, 	1996, 	is 	lacking.
As 	a nonexclusive representative, 	the Union's 	right 	to
represent 	employees 	under HEERA is 	limited. 	The University 	is
required to notify 	individual 	employees 	of 	proposed 	changes 	in
employment 	conditions and, 	if 	an employee 	chooses 	to have his or
her union meet with the employer to discuss 	the 	changes, 	such
18

meetings 	must 	be 	held upon request. 	(Regents 	of 	the University
of 	California v. 	Public Employment 	Relations Board 	(1985) 	168
Cal.App.3d 937, 	945 	[214 Cal.Rptr. 	698] 	(Regents v. 	PERB).) 	The
right 	of 	a nonexclusive 	representative 	to represent 	employees, 	to
the extent 	it exists, 	is derivative; 	it 	is the right of an agent
or representative of 	the 	employee. 	(Ibid.)
In this 	case, 	although the Union 	(as 	opposed to aggrieved
employees) 	is named as charging party, 	there is no real
difference between the employees 	and the Union. 	The Union 	is
made up 	exclusively of 	scientists 	and engineers 	at 	the
Laboratory. 	Kelly, 	for example, 	currently is a Laboratory
employee 	who 	is 	represented here by the Union; 	he 	testified that
he was 	not 	given notice 	of 	the unilateral 	change 	that 	lies 	at 	the
center of 	this dispute. 	Thus, 	the present case 	is properly
before 	the 	Board 	for adjudication.
In a true bargaining context, 	an employer's unilateral
change 	in terms 	and conditions 	of 	employment within the 	scope 	of
representation is, 	absent 	a valid defense, 	a per se 	refusal 	to
negotiate 	and violative 	of 	the 	duty to bargain under HEERA.
(Regents 	of 	the University of 	California 	(1985) 	PERB Decision No.
520-H; 	Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that 	(1)
the 	employer breached or altered a written agreement 	or
established past practice; 	(2) 	such action was taken without
19

giving 	the 	exclusive 	representative 	notice 	or an opportunity 	to
bargain over the change; 	(3) 	the change 	is not merely an isolated
breach of 	the contract, 	but 	amounts to a change of policy 	(i.e.,
having 	a 	generalized 	effect 	or 	continuing 	impact 	upon 	bargaining
unit members' 	terms and conditions of employment); 	and 	(4) 	the
change 	in policy concerns 	a matter within the 	scope of
representation. 	(Grant 	Joint Union High School 	District 	(1982)
PERB Decision No. 	196 	(Grant); 	Pajaro Valley Unified School
District, 	supra, 	PERB Decision No. 	51; 	Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116.) 	Although this
burden of 	proof 	is 	ordinarily required of 	an 	exclusive
representative 	in establishing a unilateral 	change, 	the 	same
reasoning applies 	to 	employees 	being 	represented by a
nonexclusive 	representative 	in 	an unfair practice 	case 	involving
the 	theory that 	an employer has 	refused to meet 	and discuss 	a
change 	in employment 	conditions.
The 	threshold question here 	is 	whether 	the 	University
implemented a 	change 	that 	triggered 	its 	obligation 	to provide
employees notice and, 	upon request, 	meet 	and discuss the action
under attack. 	As noted earlier, 	for purposes of 	ruling on the
University's motion to dismiss, 	it will be 	assumed without
deciding 	that 	the 	SPP 	applied 	to 	employees 	at 	the 	Laboratory as
of June 30, 	1996, 	and the Local 	Policy reflected changes 	in the
SPP.
To prevail under the 	theory of 	the 	complaint, 	as 	amended,
the Union must 	show an actual 	"effect" 	or 	"impact" 	in a
20

negotiable matter. 	(Grant.) 	The Board has observed that 	a
nonexclusive 	representative must 	demonstrate 	"a 	change 	was
proposed or occurred which 	affects 	employees." 	(Regents 	of 	the
University of California 	(1984) 	PERB Decision No. 	470, 	adopting
proposed decision of 	administrative 	law judge 	(ALJ) 	at 	7 	PERC
Para. 	14217, 	p. 	885 	(Moffitt Library).) 	In this context, 	a
unilateral 	action which does 	not 	change 	a 	condition of 	employment
is not unlawful. 	(Id. 	at 7 PERC Para. 	14217 p. 	886.) 	Even in
unilateral 	change 	cases where 	an employer has 	a duty to
negotiate, 	the 	charging party must 	demonstrate 	an actual 	impact
on employment 	conditions, 	for the Board will 	not presume 	a change
in a negotiable 	topic. 	(See 	Imperial Unified School 	District
(1990) 	PERB Decision No. 	825, 	pp. 	9-10; 	Modesto City Schools
(1983) 	PERB Decision No. 	291, 	p. 	13; 	Alum Rock Union Elementary
School District 	(1983) 	PERB Decision No. 	322, 	pp. 	22-23.)
A comparison of 	the 	Local 	Policy and 	the 	SPP 	indicates 	that
these 	are parallel 	policies which 	in many respects 	are 	similar 	in
substance. 	It 	is arguable, 	however, 	that 	the SPP may contain an
employment 	condition that 	also 	is 	not 	covered by the 	Local
Policy; 	thus, 	elimination of the SPP at 	the Laboratory 	(assuming
it 	applied there prior to July 1, 	1996) 	arguably would constitute
an actual unilateral 	change 	in such a condition. 	But, 	as the
University has 	pointed out 	repeatedly during 	the 	hearing 	and 	in
its motion to dismiss, 	the Union has 	failed to 	identify a 	single
term or 	condition of 	employment 	in 	this 	category.
21

The Union has 	cited several 	cases 	in 	support 	of 	its 	claim
that 	the 	action under attack here 	is unlawful. 	While one 	cannot
quarrel with the 	general 	proposition 	in these 	cases 	that 	a
unilateral 	change 	in a negotiable 	condition of 	employment 	is
unlawful, 	I 	find none of these persuasive on the question of
whether Laboratory employees 	suffered an 	actual 	change 	in
employment 	conditions.
For example, 	The Regents 	of 	the University of 	California
(1983) 	PERB Decision No. 	359-H, 	a case involving a non-exclusive
representative, 	dealt with a unilateral 	change 	in the maximum
duration 	of 	employment 	for 	certain 	non-tenured 	faculty members
from eight 	to 	four years. 	In my view, 	modification of 	a policy
that 	eliminates 	the 	expectation 	that 	contracts 	would be 	renewed
for up to eight years 	is 	a concrete 	change 	in a 	fundamental
condition of 	employment. 	The Union has pointed to no comparable
change in this case. 	More 	importantly, 	however, 	that decision
was 	vacated by letter of 	the 	PERB 	executive 	director on
October 29, 	1986. 	(10 PERC Para. 	17178, 	p. 	788.) 	Thus, 	the case
is without precedential value.
Regents 	of 	the University of 	California 	(1990) 	PERB Decision
No. 	842-H, 	also was decided in a context where no exclusive
representative 	existed. 	That 	case 	involved a unilateral 	change
in the 	timing of 	annual 	merit pay 	increases. 	An actual 	change 	in
the 	timing of 	merit 	salary increases 	involves 	a 	concrete 	term of
employment 	that 	is 	subject 	to notice 	and the meet 	and discuss
22

requirements of HEERA. 	However, 	the Union has 	cited no
comparable change 	in this 	case.
In Ironton Publications. 	Inc. 	(1996) 	321 NLRB 1048 	[153 	LRRM
1245], 	an employer unilaterally implemented changes 	in an
employee 	handbook which 	involved modifications 	in, 	among other
things, 	the 	requirement 	that 	an absence 	due 	to 	illness be
verified by a doctor's certificate, 	employee break time, 	dress
code, 	and probationary period. 	And in NLRB v. 	Merrill 	and Ring
(9th Cir. 	1984) 	731 F.2d 605 	[116 LRRM 2221], 	the Ninth Circuit
enforced 	an NLRB 	order 	finding 	that 	an 	employer's 	unilateral
change 	in 	its 	personnel 	policy relating 	to 	jury duty was 	an
unfair labor practice. 	Unlike 	the 	alleged change 	in the 	instant
case, 	both of 	these 	cases 	involved actual 	unilateral 	changes 	in
terms 	and conditions of 	employment. 	Because the Union has 	cited
no comparable 	change here, 	I 	do not 	find these cases persuasive.9
Actual 	changes aside, 	the Union argues 	in its brief 	that 	"it
is 	the 	elimination of 	the 	expectation 	that 	Laboratory policies
will 	conform to the 	SPP policies or the 	PPSM policies, 	that 	is
the 'unilateral change' 	here. 	The 	fact 	that 	there 	is no explicit
policy 	left 	against 	which proposed 	Laboratory policies 	can be
measured 	is 	an effect 	of 	this 	change." 	(Underlining 	in
original.) 	This argument 	is not convincing.
9The Union also points 	to 	a number of 	PERB ALJ decisions 	in
support of 	its unilateral change theory. 	However, 	proposed
decisions 	by 	PERB ALJs 	carry no precedential 	value 	and 	thus 	are
not 	controlling here. 	(PERB Regulation 32215. 	[PERB 	regulations
are 	codified at 	California Code of Regulations, 	title 	8, 	section
31001 et 	seq.])
23

Meet 	and discuss 	rights 	are 	designed 	to 	afford employees 	who
are 	not 	represented by an 	exclusive 	representative 	an 	opportunity
to provide 	input 	and participate 	in discussions 	when 	facing
actual 	changes 	in negotiable working conditions. 	(Moffitt
Library.) 	The parameters 	of 	this 	right 	are not 	defined with
precision 	in 	case 	law, 	and the Board has 	noted that 	they are 	to
be determined on a case-by-case basis. 	(Moffitt 	Library.) 	In
this particular case, 	there 	are key factors 	that 	argue 	against
the 	position 	advanced by the 	Union.
This 	case 	admittedly involves 	a unique 	set 	of 	circumstances.
However, 	I 	am aware of no authority that would attach a meet 	and
discuss 	obligation to 	a University decision to eliminate 	a 	set 	of
University-wide 	personnel 	policies 	that 	cover 	certain 	Laboratory
employees 	and 	implement 	a 	separate 	set 	of 	University-wide
policies 	for employees outside 	the Laboratory where, 	as here, 	no
bargaining obligation exists 	(either at 	the 	local 	or the
systemwide level), 	no actual 	change in employment conditions 	is
identified, 	the 	comprehensive Local 	Policy which is parallel 	to
the 	eliminated policy remains 	in effect 	at 	the Laboratory, 	and
the University stands 	ready to meet 	and discuss 	actual 	changes 	in
the 	future. 	Similarly, 	in the face of these factors, 	I know of
no 	requirement 	that 	would attach a meet 	and discuss 	obligation 	to
such a 	decision because 	previously there 	was 	an 	"expectation"
24

that 	the 	Local 	Policy would be 	conformed 	to 	reflect 	changes 	in
the SPP.10
And the 	fact 	that 	the University, 	in 	implementing the 	PPSM,
granted expanded 	rights 	to 	employees 	outside 	the 	Laboratory does
little to alter this view. 	The question here 	is whether
Laboratory employees 	experienced an actual 	change 	in working
conditions. 	The University's 	decision to 	implement 	a policy that
grants 	expanded rights 	to 	employees 	beyond the 	Laboratory has
little bearing on this 	question.
In addition, 	it 	is 	significant 	that 	the University's action
did not 	constitute 	a wholesale 	withdrawal 	of 	personnel 	policies
which wiped the 	slate 	clean 	and 	left 	Laboratory employees 	in 	the
dark 	about 	which policies 	would define 	their 	employment
conditions. 	What remained after July 1, 	1996, 	was a
comprehensive 	set 	of personnel policies 	in what 	I 	have 	referred
to 	as 	the 	Local 	Policy. 	The 	Local 	Policy has 	covered Laboratory
employees 	since 	1979, 	and the 	specific policies 	therein are 	in
many respects parallel to those 	in the SPP. 	Moreover, 	the
opportunity to meet 	and discuss 	actual 	changes 	in conditions 	of
employment 	in the 	future 	is not 	lost. 	Any changes 	in actual
working 	conditions 	the 	Laboratory 	seeks 	to 	implement 	in 	the
future 	remain 	subject 	to 	the meet 	and discuss 	requirements 	set 	by
Regents v. 	PERB.
10The Union's 	contention that 	the 	Local 	Policy was 	conformed
to reflect 	changes 	in the 	SPP under an established practice 	is
under cut 	by a 	comparison of 	the 	two policies. 	While 	these
parallel 	policies 	are 	in many respects 	similar, 	they are not
identical.
-
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The essence of 	the Union's position is 	that, 	in opposing a
change 	in policy, 	employees have been deprived of 	the 	argument
that 	a 	local 	policy deviates 	from the 	SPP or the 	PPSM. 	For
example, 	if 	either the SPP or the 	PPSM applied at 	the Laboratory
and this argument were available, 	the Union has argued, 	the
flexible 	term 	employee 	classification 	change 	would not 	have
occurred. 	However, 	there were no guarantees with respect 	to the
outcome of proposed changes 	in policy prior to July 1, 	1996, 	and
the 	same 	situation continues. 	Policy decisions 	at 	the Laboratory
must 	still 	be 	approved by the 	Office 	of 	the 	President 	and
employees may still 	oppose 	any actual 	change 	in 	local 	personnel
policies 	on the basis 	of 	its 	relationship 	to University-wide
policy. 	The 	conclusion that 	a particular proposed change will 	be
defeated if 	the Union 	is 	able 	to argue 	that 	it 	deviates 	from
University-wide 	policy 	is 	of 	necessity based 	largely on
speculation.
Under these circumstances, 	I must 	conclude that 	there has
been no 	change 	that 	triggers 	the meet 	and discuss 	obligation.
Future 	changes 	in actual 	employment 	conditions 	at 	the 	Laboratory
remain 	subject 	to 	that obligation.
PROPOSED 	ORDER
Based on the 	foregoing 	findings of 	fact, 	conclusions 	of 	law,
and the 	entire 	record herein, 	the 	complaint 	in Unfair 	Practice
Case No. 	SF-CE-461-H, 	Society of 	Professional Scientists 	and
Engineers v. 	Regents of 	the University of California, 	is hereby
dismissed.
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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 Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 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 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
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 Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
FRED 	D'ORAZIO
Administrative 	Law Judge
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