ANDREW THOMAS SINCLAIR
Arlington Building
492 Ninth Street, Suite 300
Oakland, CA 94607
TEL: (510) 465-5300
FAX: (510) 839-9800
State Bar # 72681

Attorney for Petitioner





STATE OF CALIFORNIA

PUBLIC EMPLOYMENT RELATIONS BOARD




 SOCIETY OF PROFESSIONAL SCIENTISTS AND ENGINEERS,

 No. SF-CE-461-H

 Charging Party,

BRIEF IN SUPPORT
OF STATEMENT
EXCEPTIONS

 v.

REGENTS OF UNIVERSITY OF CALIFORNIA,

Respondent.
_____________________________________/		  


INTRODUCTION AND SUMMARY OF ARGUMENT


The original Complaint issued by PERB alleged that Respondent unilaterally eliminated the University-wide Staff Personnel Policies (SPP) at the Lawrence Livermore National Laboratory (LLNL) on July 1, 1996, at which time the SPP policies were replaced by the new Personnel Policies for Staff Members (PPSM), which were not applied to the Laboratory. At the beginning of the hearing, SPSE amended the Complaint to allege that, in addition to unilaterally eliminating the SPP policies, Respondent breached a long-standing practice of "conforming personnel policies at the Lawrence Livermore National Laboratory to University-wide personnel policies" when the new PPSM policies were not extended to scientists and engineers at LLNL.

Respondent's principal defense was that the SPP policies had not applied to the Laboratory since 1979, when the LLNL Local Policy was adopted.1

After two days of hearing, in the midst of a dispute over a subpoena duces tecum, Respondent "renewed" a motion to dismiss, and the ALJ granted the motion without ruling on the subpoena. The ALJ reasoned that, although the evidence was disputed, the matter could be resolved by assuming that the SPP policies did apply "to Laboratory employees between 1979 and July 1, 1996, and the [LLNL] Local Policy was conformed to reflect changes in the SPP during that period." (Proposed Decision, pp. 13-14) Finding that there was no essential difference between the SPP policies and the LLNL Local Policy, the ALJ concluded there was not "effect" or "impact" to the change.

The ALJ's "assumption" was meant to dispose of the Complaint and the Amended Complaint, but it did not. The Amended Complaint alleged that the violation of the established practice occurred on July 1, 1996, when Respondent failed to extend the new PPSM policies to scientists and engineers at the Laboratory. The ALJ, however, had restricted his "assumption" to the LLNL Local Policy being conformed to University-wide policy "during that period," i.e., only until July 1, 1996. The theory of the Amended Complaint was that the violation occurred on July 1, 1996, when Respondent failed to extend the significant new rights and benefits of the PPSM policy to LLNL employees. The ALJ left the record unresolved with respect to that issue.

The ALJ also failed to recognize that an effect or impact of eliminating University-wide policies to LLNL employees was to deprive them of prospective rights and benefits in University-wide personnel policies, which LLNL employees had received as a matter of course before July 1, 1996.

Finally, the ALJ failed to recognize that the new PPSM policy states on its face that it applies to the Laboratory, even though the Laboratory is granted an exception or approved variation for its own Local Policy. Since LLNL employees did become subject to the PPSM policies on July 1, 1996, they were entitled to notice and an opportunity to meet and discuss the policies, and the exemption for the LLNL Local Policy.

PROCEDURAL BACKGROUND -- PLEADINGS

On October 11, 1996, SPSE filed an unfair practice charge with PERB, complaining that Respondent had unilaterally eliminated the application of the University-wide SPP policies to the Laboratory.2 (See Unfair Practice Charge, filed 10-11-96.) The PERB General Counsel issued a Complaint on February 3, 1997, alleging that, effective July 1, 1996, Respondent "unilaterally implemented a wholesale change in personnel policies which covered certain employees at [LLNL]." (Proposed Decision, pp. 1-2; see PERB Complaint, issued 2-3-97.)3

Respondent answered the Complaint on February 3, 1997, generally denying the charges and contending that the SPP policies had not applied at LLNL since 1979. (See Answer, filed 2-19-97.)

Shortly before the hearing, SPSE moved to amend the Complaint to allege that Respondent breached a long-standing practice of conforming LLNL policies to University-wide policies, and extending new rights and benefits under University-wide policies, to LLNL employees when it failed to apply to the PPSM policies to the Laboratory. (See Motion and Request to Amend Complaint, dated 2-25-98.)4 The ALJ granted the motion at the beginning of the hearing. (Proposed Decision, p. 3; see Transcript, Vol. 1, p. 6, hereafter "TR1", "TR2", etc.)5

The PPSM policies replaced the SPP policies on July 1, 1996. (See Respondent's Exhs. 102 [SPP] and 120 [PPSM], hereafter "R"; Proposed Decision, p. 6.) The PPSM policies extended significant new rights to staff employees, including an expanded provision for final and binding arbitration. (Proposed Decision, p. 8; see R-120, § 70, "Complaint Resolution," pp. 67-68.)6 Respondent did not apply the PPSM policies to employees at LLNL (Proposed Decision, pp. 7-8), despite clear indications in the record that the University initially intended to do so.7

THE SUBPOENAS

Prior to the hearing, the ALJ issued a subpoena duces tecum at SPSE's request. (See subpoena duces tecum, signed 2-18-98.) Respondent objected and refused to produce documents. The hearing went forward with the understanding that SPSE would request documents as their relevance to the case was demonstrated through the testimony. (TR1: 7) When the testimony made clear that documents were relevant, SPSE renewed its request. (See, e.g., TR2: 45-47.)

SPSE had completed its case-in-chief, subject to its request for documents in the subpoena. (Proposed Decision, p. 4; TR2: 160-161) Informal efforts were made to secure compliance by Respondent, which proved fruitless. (TR3: 4-5) SPSE requested a second subpoena duces tecum to narrow the request, which was issued by the ALJ. (See subpoena duces tecum signed 4-2-98.) The ALJ decided to rule on a motion to dismiss before ruling on the subpoena. (Proposed Decision, p. 4; TR3: 5-6) Respondent did not produce a single document requested by SPSE before the motion to dismiss was granted.

MOTION TO DISMISS

Respondent moved to dismiss before the hearing. (See Respondent's Motion to Dismiss and accompanying Memorandum and Declarations, dated 2-24-98) The ALJ reserved ruling on the motion, and the hearing went forward. (TR1: 6-7) When SPSE renewed its request for documents, Respondent countered by "renewing" its motion to dismiss. (TR3: 4-5; see Respondent's letter to ALJ re Motion to Dismiss, dated 4-24-98.) The "renewed" motion was different in scope from the original motion and relied on evidence produced during the two days of hearing (see Opposition to Motion to Dismiss, filed 6-8-98, pp. 3-5), but the ALJ asked SPSE to "respond" by filing the initial brief. (TR3: 5-6) SPSE filed a brief on June 8, 1998. (Proposed Decision, p. 4) Accompanying the brief was an Offer of Proof containing a number of documents which SPSE had found through its own search of publicly available LLNL documents. (See Offer of Proof, filed 6-8-98.) Respondent filed its brief on July 2, 1998. (Proposed Decision, p. 4) The motion to dismiss was granted on September 8, 1998. (See ALJ Proposed Decision, dated 9-8-98.)

UNDISPUTED FACTS

Despite voluminous evidence, many essential facts are not in dispute. Effective July 1, 1996, Respondent adopted the new University-wide PPSM policies, which replaced the SPP policies. (See Proposed Decision, pp. 6-8.) The PPSM policies contained broader employee rights than the SPP policies, including expanded rights to final and binding arbitration. (Id. p. 8; see R-120, pp. 67-68.) Respondent did not give notice to LLNL employees that the SPP policies were being eliminated and replaced by the PPSM policies. Nor did Respondent notify employees that the PPSM policies granted an "exception" or "approved variation" to the Laboratory. (Proposed Decision, pp. 12, 13; see R-120, §§ 1-A & 1-C.)8

DISPUTED EVIDENCE AND ALJ'S "ASSUMPTION"

Much of the disputed evidence concerned whether the SPP policies had been supplanted by the LLNL Local Policy in 1979, and whether Respondent had a practice of conforming the LLNL Local Policy to University-wide personnel policies. (See Proposed Decision, pp. 8-16.)

The Proposed Decision blows hot and cold with respect to whether the LLNL Local Policies were conformed to University-wide policies. On the one hand, the ALJ points to several "instances where policies in the SPP have not been followed at the Laboratory" (Proposed Decision, pp. 9-10) and says SPSE's past practice theory is undercut by a comparison of the SPP and LLNL Local Policies. "While these parallel policies are in many respects similar they are not identical." (Id. p. 25)9 But the ALJ then relies on the fact that the SPP and the LLNL Local Policies are "parallel policies which in many respects are similar in substance" (id. 21) to dismiss the complaint!

The ALJ found that it was not necessary to resolve the issue of whether the SPP policies applied at LLNL between 1979 and July 1, 1996. He said he would could assume the SPP did apply:

CASE LAW

Laboratory employees have a right to be notified of changes in the terms and conditions of employment and to request their non-exclusive representative (SPSE) to meet and discuss the matters with LLNL. (Regents of UC v. PERB (1985) 168 Cal.App.3d 937, 945; Proposed Decision, pp. 18-19)10 To prevail, SPSE must show that Respondent breached an established past practice by changing a matter within the scope of representation without notice to employees or an opportunity to meet and discuss the change,11 and that there was an actual "effect" or "impact" of the change. (20-21)12

ALJ REASONING

The ALJ reasoned that SPSE's theory was that the University had traditionally acted as a "watchdog" over LLNL, and that the SPP policies acted as a "yardstick" against which the University measured changes in the Local Policy proposed by the Laboratory. (Proposed Decision, pp. 14-15) Eliminating the SPP policies eliminated the expectation that the University would act as a "watchdog," and left LLNL free to implement changes without having to worry about the SPP policies acting as a "yardstick." A recent example is the LLNL implementation of the "flexible term" policy with the acquiescence of the University. (See Proposed Decision, pp. 18-19.)

As noted above, the ALJ said the SPP policies and LLNL Local Policies are "parallel policies which in many respects are similar in substance." (Proposed Decision, p. 21) Since SPSE "failed to identify a single term or condition of employment" in the SPP policies which is not also covered in the Local Policy, it follows that there could not be an "effect" or "impact" to the elimination of the SPP policies. (Proposed Decision, p. 21)

Although SPSE contended that Respondent unilaterally eliminated the expectation that LLNL policies would conform to University-wide policies, this argument was not convincing, according to the ALJ, where there was no bargaining obligation, no actual change in employment conditions, the Local Policy is parallel to the University-wide policy, and Respondent remains willing to meet and discuss actual changes in policies in the future. (Proposed Decision, pp. 23-24) Thus, a meet and discuss obligation could not arise from an "'expectation' that the Local Policy would be conformed to reflect changes in the SPP." (Proposed Decision, pp. 24-25)

The fact that Respondent "granted expanded rights to employees outside the Laboratory does little to alter this view," according to the ALJ, because the "University's decision to implement a policy that grants expanded rights to employees beyond the Laboratory has little bearing on this question." (Proposed Decision, p. 25)

ARGUMENT


SPSE alleged in the Amended Complaint that there had been "an established practice of conforming personnel policies at the Lawrence Livermore National Laboratory to University-wide personnel policies," and that "each time University policy was amended to add rights and benefits for University employees ... the Laboratory followed suit by conforming its 'local' personnel policies to the new University-wide policy." Respondent violated this practice when, with no notice to employees, it "failed to extend the coverage of the new University-wide [PPSM policies] to employees at the Laboratory..." (See Amended Complaint, dated 2-25-98.)

The ALJ's "assumption" was that the LLNL "Local Policy was conformed to reflected changes in the SPP during that period." "That period" was the time "between 1979 and July 1, 1996" (Proposed Decision, pp. 13-14, 20), but not after July 1, 1996. The Amended Complaint, however, is not limited to July 1, 1996. Indeed, the allegation is that Respondent breached the past practice on July 1, 1996, by failing to extend the significant new rights in the PPSM policies to Laboratory employees.

It is no defense to say that the SPP policies were eliminated on July 1, 1996 (just as the new benefits were extended to other University staff employees). Eliminating the University-wide policies could not eliminate the past practice.

The attached Table summarizes evidence located by SPSE at LLNL showing a long-standing practice of conforming Laboratory personnel policies to University-wide policies and extending new and expanded rights and benefits to LLNL employees between 1979 and 1996. (See Table B; see also CP-3 & CP-4.)13

The ALJ's statement to the effect that it is inconsequential that Respondent "granted expanded rights to employees outside the Laboratory" (Proposed Decision, p. 25) is indefensible. The whole point of the Amended Complaint is that Respondent did grant expanded rights under the new PPSM policies even though the Laboratory was assertedly exempted at the same time.

The ALJ in effect limited the Complaint to times prior to July 1, 1996. He thereby foreclosed SPSE from showing that the established practice was violated as of that date. This was improper. There was convincing evidence that LLNL had conformed its personnel policies to all relevant University-wide personnel policies prior to that time. (See Table B and fn. 14, above.)

It makes no sense that Respondent could unilaterally eliminate University-wide policies at LLNL and rely on that very elimination as its defense to the unilateral change.

If the ALJ had recognized the scope of the amended charge, he could not have found "no actual change in employment conditions" when explaining why no meet and discuss obligation applied. (Proposed Decision, p. 24) There were tangible and explicit benefits that were not extended to LLNL employees.

The ALJ also subverted his own assumption. While relying on the assertion that the SPP and LLNL Local Policies are "parallel policies which in many respects are similar in substance" to dismiss the Complaint, he then says there are several "instances where policies in the SPP have not been followed at the Laboratory" (id. pp. 9-10) to question SPSE's theory. (Id. p. 25, fn. 10)

The ALJ cannot have it both ways, finding that the policies are the same for purposes of dismissing the case while finding they are different for purposes of defeating SPSE's contention that the LLNL Local Policy was conformed to the University-wide SPP policies. More importantly, the evidence does not show any significant difference between the SPP policies and the LLNL Local Policy (see above), and documents located by SPSE in spite of Respondent's refusal to provide discovery show that the Laboratory did conform to University-wide policies between 1979 and 1996 (see Table B).14

The crux of the ALJ's reasoning in dismissing the charge was that, since the LLNL Local Policy was no different than the University-wide SPP policy, there could be no "effect" or "impact" when Respondent stopped applying the SPP policies to the Laboratory. However, if SPSE's theory is correct that LLNL policies were conformed to University-wide policies as a matter of practice between 1979 and 1996, it follows that the Local Policies would be the same as the SPP policies. It does not follow, however, that there was no "effect" or "impact."

First of all, eliminating University-wide policies deprived LLNL employees of the automatic extension of rights and benefits which occurred before 1996. There were consistent modifications and upgrades of the University-wide SPP policies between 1979 and July 1, 1996. These changes were consistently applied to LLNL. Examples involve time off for jury service and legal proceedings (1980) (Offer of Proof, Exh. A-4), employee grievances (1981) (id. Exh. A-9), use of sick leave for work-incurred injuries (1982) (id. Exh. A-13), resolution of sexual harassment complaints (1983) (CP-4; TR1: 45-46, 96), family leave (1990) (id. Exh. A-33), integrity in research (1990) (id. Exh. A-37), leave without pay (1990) (id. Exh. A-38), and reporting improper governmental activities (i.e., whistle-blowing) (1991) (id. Exh. A-41).

The practice of automatically applying expanded rights and privileges under University-wide policies to LLNL employees stopped on July 1, 1996. This has had and will have a significant "effect" or "impact on LLNL employees."15

Secondly, the ALJ was simply mistaken in concluding that there was no discernible "effect" or "impact" when the SPP policies were eliminated because the LLNL Local Policy contained the same provisions.

Richard White testified that the "effect" or "impact" of eliminating University-wide policies at LLNL was that the University no longer acted as a "watchdog" over LLNL personnel policies. (TR1: 65-66) When University-wide policies applied at the Laboratory, the result was that the University "played a constructive positive role in maintaining the quality of the personnel policies" at LLNL (TR1: 66), and the University-wide policies acted as "a yardstick to measure the policies by." (TR1: 65) This was important because the Laboratory tended "to be subject to pressures from the Department of Energy ... which blows with the political winds..." (TR1: 66) Further, as White testified, applying University-wide policies to the Laboratory maintained the tradition of academic freedom.

White summarized the effect of eliminating University-wide personnel policies at the Laboratory as follows:

Contrary to the testimony of Lubbe Levin that "academic freedom" does not apply to scientists and engineers at LLNL (TR2: 103, 149-152), there is a long history of the University preserving an atmosphere of academic freedom at Laboratory. As President Atkinson said to the Regents' Committee on Joint Oversight of DOE Laboratories in September 1997:

The Flexible Term policy would have been a major exception to the PPSM policies, because the PPSM policies, like the SPP policies, are based on University employment containing a "for cause" standard for termination and access to a fair grievance procedure to challenge unjust disciplinary actions.

While it is not possible to say that the University would or would not have granted an exception to the PPSM policy with regard to the Laboratory's Flexible Term employment policy if these policies were in effect, it is possible to say that the Laboratory would have had to justify its policy as an "exception" to the PPSM policies and would not have been free to simply propose the new policy to the University without reference to any specific University-wide policy.18

Although employees at the Laboratory were provided with an opportunity to meet and discuss the Flexible Term policy (Proposed Decision, p. 15), this was after the University stopped applying University-wide policies to the Laboratory. Lubbe Levin testified that proposed changed in the LLNL Local Policy was measured against a sort of free-floating criteria including all University policies.19 The absence of a concrete policy under which the Laboratory had to justify an "exception" was an entirely different animal from the nondescript and amorphous set of policies and considerations Ms. Levin describe.

The new PPSM policies appear to apply to Laboratory employees as a matter of law. Section 1-A of the PPSM policies states: "Employees at the Department of Energy (DOE) Laboratories are covered by approved variations of these and prior policies..."20 (PPSM, § 1-A, R-120, p. 2; emp. added.) The only reasonable interpretation of this language is that LLNL employees are covered by the PPSM policies, even though the LLNL Local Policy is subject to an "approved variation."

Despite confusing and inconsistent testimony by Lubbe Levin and Susan Angstadt as to the meaning of section 1-A,21 existing law requires that the provision be interpreted according to its actual words rather than the construction an administrator urges in a contested hearing.

Since the Regents "have the general rule-making or policy-making power in regard to the University ... and are ... fully empowered with respect to the organization and government" of the University, "policies established by the Regents as a matters of internal regulation may enjoy a status equivalent to state statutes." (Apte v. Regents of UC (1988) 198 Cal.App.3d 1084, 1090) Accordingly, the PPSM policies are subject to the normal rules of statutory construction.

In determining the scope and coverage of the PPSM policies, a reviewing tribunal "'turns first to the words themselves for the answer,'" and interprets the provision in question "'according to the usual, ordinary import of the language employed...'" (Moyer v. WCAB (1973) 10 Cal.3d 222, 230-231, 110 Cal.Rptr. 114)

The PPSM policies say Laboratory employees "are covered by approved variations of these and prior policies..." (PPSM, § 1-A, R-120, p. 2) The plain meaning of this language is that the PPSM policies do apply to the Laboratory employees and that certain "approved variations" have been granted. The opinions of certain witnesses as to the meaning of the language are not particularly relevant:

If it is correct that the PPSM policies do apply to the Laboratory, even though the Laboratory is subject to an "approved variation," it follows that this was a significant change in the terms and conditions of employee for LLNL employees and that they had a right to be notified thereof and to meet and discuss the matter with Respondent.

Further, the evidence shows that Respondent did instruct the Laboratory to inform employees of the proposed changes in University-wide personnel policies and afford them an opportunity to comment. In a memo to "Associate Laboratory Directors," among others, in August 1994, Ms. Levin said,

A similar letter from October 1995, also addressed to "Associate Laboratory Directors," outlined major changes to be incorporated into the PPSM policies and concluded by saying, "As this is a formal review, employees and employee organizations should be given the opportunity to comment." (CP-8)

Although Ms. Levin claimed in her testimony that these documents were only "courtesy copies" to the Associate Laboratory Directors to keep them informed of changes which did not apply directly to the Laboratories, this testimony is impeached by the language of the August 1994 memo, which concludes with Ms. Levin saying: "I am requesting that consolidated comments be returned to me by each campus and Laboratory by October 24, 1994." (CP-7; emp. added.)22

Ms. Lubin's testimony that the two memoranda were "courtesy copies" is not credible. Rather, it appears that Respondent did initially expect the Laboratory to inform employees of the proposed changes in University-wide policies and give them a chance to be heard, but that after the fact, the Laboratories resisted, and Respondent did not insist. The changes were significant enough that LLNL employees should have been given a chance to comment.

CONCLUSION

The Proposed Decision should be reversed. The Board should find that Respondent did make a unilateral change in the terms and conditions of employees for LLNL employees, without affording employees or SPSE an opportunity to meet and discuss the matter. The status quo ante should be restored, i.e., the PPSM policies should be applied to LLNL, subject to Respondent's right to modify the policies after notifying employees and meeting and discussing the matter with them.

DATED: 13 Oct 1998

 _______________________
ANDREW THOMAS SINCLAIR



END NOTES:

1 The ALJ refers to the local Laboratory personnel policies as the "Local Policy." This same set of policies is referred to as the Personnel Policies and Practices Manual or PPPM in SPSE's Opposition to Motion to Dismiss.

2 The Unfair Practice Charge alleged: "The University has changed its entire personnel policy regarding employees of the Lawrence Livermore National Laboratory. On July 1, 1996, the University installed new policies systemwide. These written policies indicate that they apply to LLNL. However, both UC and LLNL deny that the new policies apply at LLNL. Furthermore, they claim LLNL is now under policies that were a local implementation of the previous UC policy governing LLNL. This was done without ever seeking employee input, and this violates HEERA."

3 "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 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." (See PERB Complaint dated 2-3-97.)

4 The Amended Complaint alleged: "Until July 1, 1996, there existed an established practice of conforming personnel policies at the Lawrence Livermore National Laboratory to University-wide personnel policies. More specifically, each time University policy was amended to add rights and benefits for University employees covered by the University-wide personnel policies applicable to the Laboratory, the Laboratory followed suit by conforming its "local" personnel policies to the new University-wide policy. [¶] On or about July 1, 1996, this practice was unilaterally abrogated when the University assertedly abolished the application of the University-wide Staff Personnel Policies to the Laboratory and failed to extend the coverage of the new University-wide Personnel Policies for UC Staff Members to employees at the Laboratory covered by this charge (generally 200- and 300-series scientists and engineers). [¶] Respondent did not notify employees at the Laboratory or SPSE that it was abrogating the above-referenced practice or afford employees or SPSE any opportunity to meet and discuss the change."

5 The ALJ denied an earlier motion to amend the Complaint based on the adoption of the Flexible Status Employee policy on the grounds that this was "merely an effect of the allegedly unlawful conduct that is reflected in the original complaint." (Proposed Decision, pp. 2-3; TR1: 6)

6 The "Complaint Resolution" procedure in PPSM § 70 provides that grievances involving discrimination, hours of work, overtime, differential pay, holidays, vacation, sick leave, leave of absence, corrective action, medical separation, termination, layoff and reprisal are subject to "a final and binding decision before a hearing officer..." The SPP policies, on the other hand, provided for a "final and binding" decision only with respect to corrective action, dismissal and layoff. (See R-102, SPP 280.24.)

7 SPSE presented a memo from Assistant Vice President Lubbe Levin to "Vice Chancellors-Administration [and] Associate Laboratory Directors, which said: "[I]t is imperative that those who could be affected by such changes be given the opportunity to review and comment on the proposed initiatives as extensively as possible before decisions about them are formulated or specific programmatic proposals are developed. [¶] To that end, we are requesting that you engage in extensive consultation on this proposal through all appropriate means -- employee meetings and open forums, focus groups, consultation with advisory groups, management, briefings, newsletters, and other communications -- in order to elicit employee comments, suggestions, and ideas." (See Charging Party, Exh. 7, hereafter "CP.) Although she testified that the memos to the Laboratory Directors were only "courtesy copies" (TR2: 104-105; see 129-131) meant to keep them informed, her testimony was impeached by the August 25, 1994 memo itself, which said, "I am requesting that consolidated comments be returned to me by each campus and Laboratory by October 24, 1994." (CP-7; emp. added.)

8 As explained by Lubbe Levin in her 10-6-95 memo to University administrators, the new PPSM policy "consolidates the current four-tier staff personnel system (Staff, AP&S, MAP, and Executive Program) into a single personnel policy system covering all levels of non-represented staff." (CP-8)

9 The ALJ's finding that there were "differences" between the LLNL Local Policies and the SPP policies was based on the testimony of Susan Angstadt and Lubbe Levin. He pointed to three areas in which Ms. Angstadt said the SPP policies differed from LLNL Local Policy. (Proposed Decision, pp. 9-10) One was a "supplemental family medical leave provision" that was assertedly not followed at LLNL (TR2: 70), the fact that exempt employees at LLNL were allowed to use half-day increments of paid time off (sick leave or vacation), whereas full-day increments are required by the SPP policies (TR2: 70), and a staff award program under the SPP policies that was not incorporated into the LLNL Local Policy. (TR2: 71) Ms. Angstadt never identified the particular provisions she was referencing, and she often seemed uncertain about what she was testifying to. (TR2: 70-71) This was not surprising because she had only been at the Laboratory since July 1996 and had only second-hand, hearsay knowledge about these subjects. (TR2: 7) She attributed most of her knowledge to Robert Perko, who did not testify. (TR2: 50) Not only was her testimony hearsay, the "differences" she identified were truly trivial. The ALJ also says Lubbe Levin testified that between 1979 and 1996, "there were changes in the SPP that were not automatically incorporated into the Local Policy manual." (Proposed Decision, p. 10) What Ms. Levin actually said was the SPP policies did not apply to the Laboratory after 1979, so changes in the SPP policies were not automatically applied there. (TR2: 94-95, 134) Ms. Levin's testimony that the SPP policies did not apply after 1979 was impeached by the Laboratory's own documents (see Table A & B). Her testimony that the Laboratory did not follow all SPP changes, but only those they chose to follow, was based on her erroneous assertions that the SPP policies did not apply, and so has no probative value.

10 The distinction between the union and employees in Regents of UC v. PERB, supra, has no application here where the union is comprised solely of LLNL employees. (Proposed Decision, p. 19)

11 "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 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; Pajaro Valley Unified School District, Decision No. 51; Davis Unified School District (1980) PERB Decision No. 116)" (19-20)

12 See Grant, supra, and Regents of the University of California (1984) PERB Decision No. 470, adopting ALJ decision at 7 PERC ¶ 14217, p. 885 (Moffitt Library) [unilateral changes which do not affect a term or condition of employment are not unlawful, id. p. 886]; 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; Proposed Decision, pp. 20-21)

13 The LLNL documents consistently refer to the Laboratory's implementation of University policies: "The attached LLNL Court Leave Policy has been revised to conform to UC policy." (Exh. 4, 4-11-80) "UC ... has issued the following Policy on Relations with Employee Organizations... This policy will be published in Section J, Personnel Policy and Procedures Manual in the near future." (Exh. 5, 5-14-80) "The University has asked for employee comments on proposed changes in policies governing employee grievances and administrative review... LLNL policies that would be affected by the changes UC is proposing are published in Section H, Part I and Part II of the Laboratory's Personnel Policies and Procedures Manual." (Exh. 9, 3-18-81) "The University of California has revised its Employee Development policy, and the Laboratory's implementation of that revised policy is attached." (Exh. 12, 8-26-82) "The University of California has revised its policy on Use of Sick Leave and Vacation for Work-Incurred Injury or Illness... The Laboratory's implementation of the revised policy is attached..." (Exh. 13, 9-29-82) "The changes regarding 'Family Sick Leave' and 'Call-Back Time' are being proposed to conform with University policy..." (Exh. 33, 03-21-90) "The Laboratory has developed a draft policy and procedure for implementation of the [University] policy on Integrity in Research..." (Exh. 37, 09-17-90) "The University California has asked each of its campuses and Laboratories to develop local policy and procedures for reporting improper governmental activities and protection against retaliation for reporting improper activities. The Laboratory has done so..." (Exh. 41, 3-05-91)

14 The SPP policies themselves contemplate that each campus and laboratory will be able to adopt "local policies" which address circumstances. There are several examples in the documents attached to the Offer of Proof, including DOE "Q clearances," additional compensation for Site 300 employees due to lack of amenities at the remote high explosives test site, and creation of a special "Laboratory Associate" category for retirees hired to work part-time). (Offer of Proof, Exh. A) In certain areas, campuses and laboratories are directed to develop policies, e.g., procedures for selecting grievance hearing panels, and the requirement to post job vacancies pursuant to the UC non-discrimination and affirmative action policies). (Ibid.) Further, the Laboratory had obtained "approved modifications" for certain LLNL policies from the University, including modification of the Laboratory's Term Appointment Policy in July 1994, and (2) a 1996 change in the layoff policy for 200-series employees.

15 Lubbe Levin accurately portrayed the situation after 1996, even though she claimed this had been the situation since 1979. She said changes in the SPP policies were not automatically applied at the Laboratory. (TR2: 94) On the contrary, if the Laboratory "chose" to follow a particular revision in University-wide policy, then LLNL representatives would "let us know ... the new section is going into their manual" and request "confirmation." (TR2: 94-95; see also 134) Although Ms. Levin was impeached insofar as she claimed that this situation began in 1979 (see Tables A & B), her testimony was an accurate description of the University's relationship to the Laboratory after July 1, 1996.

16 It was stipulated that Muelder and O'Connell would testify if they appeared as witnesses in line with their declarations and that their cross-examination would be similar to that of SPSE's live witnesses, White and Kelly. (TR2: 162-163)

17 A concrete example involving the right to speak out was the case of Associate Laboratory Director Roy Woodruff. Woodruff believed that statements made by LLNL representatives regarding the Strategic Defense Initiative ("SDI" or "Star Wars") were scientifically insupportable and "got into a dispute with the director of the Laboratory." He ended up resigning as Associate Director but felt the Laboratory had retaliated against him and filed a grievance, which he won. White explained: "That was a situation where the fact that the grievance procedure was there and in place was of great benefit to the employee." (TR1: 76-77)

18 Section 1-C of the PPSM policies provides: "Exceptions to these policies may be made only by the President, who may delegate such authority, except when such delegation is specifically limited." (See R-120, § 1-C, p. 3)

19 Ms. Levin testified that there is a "genetic linkage" between all University personnel policies, and on the basis of the "linkage," her office determines what changes are appropriate at the Laboratory. (TR2: 82-84, 85-86, 87) She was uncomfortable with the term "yardstick" and said the approach of her office was "quite a bit more complex and cannot be measured in a quantitative way but probably is closer to the kinds of decisions that are made for example in the public policy area..." (TR2: 100-101)

20 Ms. Levin testified that the term "prior policies" refers to the SPP policies. (TR2: 119)

21 Ms. Levin testified that the LLNL Local Policy was a "stand alone" policy not subject to any other overall University policy. Asked why section 1-A mentions the Laboratories, she said the language was actually an attempt to make clear that the PPSM policies do not apply to the Laboratories. (TR2: 128-129, 131-132) She said Laboratory personnel policies were an "approved variation of the combination of all of the [University] policies." (TR2: 127-128) Susan Angstadt testified that the LLNL Local Policy was not an "exception" to the PPSM policies. (TR2: 63) Asked about the above-quoted language in PPSM § 1-A, she said, "I can't explain what the wording of that policy is... I can't elucidate." (TR2: 63-64) She said the LLNL Local Policies were "approved modifications ... of other University policies," but she could not identify what these "other University policies" were (TR2: 64) and tried to say they were an exception to University policy "in general." (TR2: 64-67)

22 Although the point is "assumed" by the ALJ, it is worth noting that Ms. Levin testified unequivocally that the SPP policies did not apply to the Laboratory after 1979. (TR2: 134) This testimony was so obviously false (see Tables A and B) that it raises questions as to her credibility on other points. (3 Witkin, Cal. Evidence, 3d ed., §§ 170-1771; 7 Witkin, Cal. Procedure, 3d ed., "Trial," § 288.)




TABLE "A"

DOCUMENTS REQUESTING LLNL

EMPLOYEE COMMENT ON SPP CHANGES



Exh. Date Description
 1  9-5-79 Newsline: Seeks employee comment on proposed revisions to "University of California's policy on employee development programs"
8 10-16-80 Newsline: "The University of California wants the views of employees on a proposed policy change that would create a 'phased retirement' program."
6 7-15-80 LLNL Memo to Managers: "The University proposed to revise the JURY DUTY AND ADMINISTRATIVE AND LEGAL PROCEEDINGS -- LEAVE WITH PAY policy, and has asked for Laboratory comment on the proposal... Please solicit comment on the proposed change from your employees..."
11 Newsline: "Human Resources is looking for employee comments on a proposed revision to the University's extended sick leave policy."
18 05-11-83 Weekly Bulletin: "A change has been proposed for the University's staff personnel policies, adding the words 'sexual orientation...' [¶] Helga Christopherson, manager of Human Resources, would like comments on the proposed change..."
19 06-14-83 LLNL letter to SPSE: "The University of California is proposing new procedures for the resolution of sexual harassment complaints... [¶] If you have any questions or comments, please let me know..."
20 06-20-83 Weekly Bulletin: "Employees are being asked to comment on proposed new procedures for a University of California policy on sexual harassment... [¶] Employees are asked to study the proposal and send their comments to Helga Christopherson..."
22 06-20-84 Memo to LLNL Managers: "The University is proposing revisions to the Staff Personnel Policy on Retirement, and has asked the Laboratory to review the proposal with employees..."
23 06-27-84 Weekly Bulletin: "Employee comments on the University of California's proposed revision to the Staff Personnel Policy on Retirement are being sought by Human Resources Manager Helga Christopherson..."
24 06-19-85 Weekly Bulletin: "The University of California is seeking employee comments on its 'Proposed University of California Policy on Sexual Harassment and Complaint Resolution Procedures.' [¶] Comments should be sent to Human Resources manager Helga Christopherson..."
25 02-24-88 Newsline: "Laboratory employees have been asked to comment on a proposed statement which supports a smoke-free environment for the University of California (UC) system... [¶] Comments by LLNL employees on the proposed statement should be sent to Christopherson..." (See also Exh. 26)
28 10-26-88 Newsline: "The Laboratory is seeking employee comment on a proposed University of California policy on drugs in the workplace..." (See also Exh. 30.)
29 12-14-88 Newsline: "Employee comments are being requested on proposed revisions to University of California policy which would eliminate restrictions on post-retirement income..."
33 03-21-90 Newsline: "Laboratory employees are being asked to comment on a proposed University of California policy for its campuses and laboratories on 'integrity in research'..."
44 08-30-91 Newsline: "Laboratory employees are being asked to comment on proposed modifications to the University of California's Military Leave Policy..."


TABLE "B"

DOCUMENTS ABOUT CONFORMING LLNL PERSONNEL

POLICIES TO UNIVERSITY-WIDE PERSONNEL POLICIES


Exh. Date Description
4 4-11-80 LLNL Administrative Memo: "The University of California has issued a revised policy on Jury Service and attendance at certain Administrative and Legal Proceedings. The attached LLL Court Leave Policy has been revised to conform to UC policy."
5 5-14-80 LLNL Administrative Memo: "UC President David S. Saxon has issued the following Policy on Relations with Employee Organizations... This policy will be published in Section J, Personnel Policy and Procedures Manual in the near future."
7 10-13-80 Administrative Memo: "The following changes to the Personnel Policies and Procedures Manual, Section H, Part 1.6 and 11.7 [implementing SPP 280], are effective immediately and will be published in the Manual in the near future."
9 03-18-81 Newsline: "The University has asked for employee comments on proposed changes in policies governing employee grievances and administrative review... LLNL policies that would be affected by the changes UC is proposing are published in Section H, Part I and Part II of the Laboratory's Personnel Policies and Procedures Manual."
12 08-26-82 LLNL Administrative Memo: "The University of California has revised its Employee Development policy, and the Laboratory's implementation of that revised policy is attached."
13 09-29-82 LLNL Administrative Memo: "The University of California has revised its policy on Use of Sick Leave and Vacation for Work-Incurred Injury or Illness... The Laboratory's implementation of the revised policy is attached..."
33 03-21-90 Newsline: "Human Resources Manager Bob Lyon has issued a call for employee comment on two proposed revisions to Laboratory Personnel policies. [¶] The changes regarding 'Family Sick Leave' and 'Call-Back Time' are being proposed to conform with University policy..." (See also Exh. 36.)
37 09-17-90 Memo to LLNL Managers: "In January of this year, the University of California gave Laboratory employees an opportunity to comment on the proposed policy on Integrity in Research... [¶] The Laboratory has developed a draft policy and procedure for implementation of the [University] policy on Integrity in Research..." (See also Exh. 40.)
38 10-30-90 Memo to LLNL Managers: "The University is requesting comments on proposed revisions to personnel policies relating to leave without pay..." The memo explains in detail current Laboratory policy and how it would change under the University proposals. (See also Exh. 39.)
41 03-05-91 Memo to LLNL Managers: "The University of California has asked each of its campuses and Laboratories to develop local policy and procedures for reporting improper governmental activities and for protection against retaliation for reporting improper activities. The Laboratory has done so..."



Documents for further information:

Chronology of the Unfair Process   Statement of Exceptions  Brief in Support of Statement of Exceptions

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