Decision 1507H – Trustees of the California State University

LA-CE-584-H

Decision Date: January 8, 2003

Decision Type: PERB Decision

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Perc Vol: 27
Perc Index: 26

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

The absence of Ed. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.04000 – Access – Union Right

A policy that unlawfully restricts union access creates a corresponding interference with employee’s representation rights under HEERA section 3571(a).

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

A policy restricting APC’s use of CSU e-mail to communicate with employees, an existing practice that was acknowledged by CSU, clearly changes the status quo. CSU’s computer usage policies embody comprehensive rules on the use of computer resources, violation of which is grounds for discipline. These policies thus affect “unilateral implementation of a sweeping set of rules . . . .of the ‘quantity and kind’” that alter the status quo as set forth in the 1960 policy and Govt. Code section 8314. (Oakland Unified School District (1983) PERB Decision No. 367.) CSU’s new telephone and facsimile policy constitute a departure from the restrictions on telephone usage found in Government Code section 8314. The new grounds for discipline in the policy are also inconsistent with section 8314 and CSU’s 1960 policy. CSU’s new telephone and facsimile policy improve upon CSU’s 1960 policy, which prohibits use of state facilities, equipment or supplies for other than the performance of official business. Employers may not make unilateral changes to increase benefits, as well as reduce benefits.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

The ALJ properly found that, based upon the existing practice of the parties, CSU failed to notify APC of the implementation of the new policies.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

A policy restricting APC’s use of CSU e-mail to communicate with employees, an existing practice that was acknowledged by CSU, clearly changes the status quo. CSU’s computer usage policies embody comprehensive rules on the use of computer resources, violation of which is grounds for discipline. These policies thus affect “unilateral implementation of a sweeping set of rules . . . .of the ‘quantity and kind’” that alter the status quo as set forth in the 1960 policy and Govt. Code section 8314. (Oakland Unified School District (1983) PERB Decision No. 367.) CSU’s new telephone and facsimile policy constitute a departure from the restrictions on telephone usage found in Government Code section 8314. The new grounds for discipline in the policy are also inconsistent with section 8314 and CSU’s 1960 policy. CSU’s new telephone and facsimile policy improve upon CSU’s 1960 policy, which prohibits use of state facilities, equipment or supplies for other than the performance of official business. Employers may not make unilateral changes to increase benefits, as well as reduce benefits.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

Under the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. CSU’s computer usage policies affect matters within the scope of representation as they pertain to APC’s use of CSU e-mail to communicate with employees. Computer resources, telephones and fax machines comprise “reasonable” means of access in a large academic institution and reasonable access rights are negotiable. Govt. Code section 8314 does not prohibit personal use of computer, telephone and fax equipment; rather, it prohibits use for personal purposes but excludes from that prohibition occasional, incidental or minimal use for personal purposes. Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items. The absence of Educ. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment.

1000.00000 – SCOPE OF REPRESENTATION
1000.02002 – Access – Subject of Bargaining

CSU’s computer usage policies affect matters within the scope of representation as they pertain to APC’s use of CSU e-mail to communicate with employees. Computer resources, telephones and fax machines comprise “reasonable” means of access in a large academic institution and reasonable access rights are negotiable.

1000.00000 – SCOPE OF REPRESENTATION
1000.02029 – Disciplinary Action

Under the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items. The absence of Educ. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment.

1000.00000 – SCOPE OF REPRESENTATION
1000.02030 – Disciplinary Procedures

Under the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items. The absence of Educ. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment.

1000.00000 – SCOPE OF REPRESENTATION
1000.02151 – Use of District Facilities, Equipment

Under the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. CSU’s computer usage policies affect matters within the scope of representation as they pertain to APC’s use of CSU e-mail to communicate with employees. Computer resources, telephones and fax machines comprise “reasonable” means of access in a large academic institution and reasonable access rights are negotiable. Govt. Code section 8314 does not prohibit personal use of computer, telephone and fax equipment; rather, it prohibits use for personal purposes but excludes from that prohibition occasional, incidental or minimal use for personal purposes.

1000.00000 – SCOPE OF REPRESENTATION
1000.02145 – Training

Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items.