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,	STATEMENT OF EXCEPTIONS
v. REGENTS OF UNIVERSITY OF CALIFORNIA, Respondent. _____________________________________/

Charging Party, Society of Professional Scientists and Engineers (SPSE), excepts to the Proposed Decision of the Administrative Law Judge (ALJ) on the following grounds:

I. ISSUES OF PROCEDURE, FACT, LAW OR RATIONALE TO WHICH EXCEPTION IS TAKEN:

1. The ALJ erroneously granted Respondent's motion to dismiss (see Proposed Decision, pp. 26-27) on the basis of an incomplete record and without affording Charging Party SPSE any right to discovery (see accompanying Brief in Support of Statement of Exceptions, pp. 6-7, hereafter "Brief.") As explained below and in the accompanying Brief in Support of Statement of Exceptions (which is incorporated by reference), the ALJ erroneously based his decision on an "assumption" (see Proposed Decision, pp. 13-14, 20) that did not encompass the scope of the Amended Complaint and thereby left issues unresolved which were necessary to a full determination.


2. To explain the ALJ's erroneous ruling, SPSE will first acknowledge parts of the Proposed Decision which faithfully describe the proceedings.


3. The Proposed Decision accurately sets forth the procedural history. (Proposed Decision, pp. 1-5)


4. The Proposed Decision accurately describes the policies involved in the case: the Staff Personnel Policies (SPP), the Lawrence Livermore National Laboratory (LLNL) Local Policies, and the Personnel Policies for Staff Members (PPSM), which replaced the SPP policies for most University staff employees on July 1, 1996 and which contain certain benefits that go beyond those found in the SPP or the LLNL Local Policy. (Proposed Decision, pp. 5-8)


5. The Proposed Decision accurately points out that there was disputed evidence as to whether the University-wide SPP policies applied at the Laboratory after 1979. (Proposed Decision, pp. 11-16)


6. For purposes of ruling on the motion to dismiss, the ALJ "assumed ... that the SPP applied to Laboratory employees between 1979 and July 1, 1996, and that the Local Policy was conformed to reflect changes in the SPP during that period." (Proposed Decision, pp. 13-14, 20) This "assumption" did not take into account the full scope of the Amended Complaint. (Brief, pp. 3-6, 13-16) The ALJ notes that the amended complaint alleges that "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." (Proposed Decision, p. 3; emp. added.) The Amended Complaint was not limited to the SPP policies or to time before July 1, 1996. On the contrary, the Amended Complaint alleged that, "[u]ntil July 1, 1996, there existed an established practice of conforming personnel policies at [LLNL] to University-wide personnel policies," and that, "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." This practice was violated when Respondent unilaterally abolished application of the SPP policies to LLNL employees and "failed to extend the coverage of the new University-wide [PPSM policies] to employees at the Laboratory..." (See Motion and Request to Amend Complaint, dated 2-25-98, and TR1:6, where ALJ granted motion.) By limiting the assumption to the LLNL Local Policy being conformed to the SPP only until July 1, 1996, and then granting the motion to dismiss on the theory that the charge was limited to times before July 1, 1996, the ALJ committed reversible error.


7. The Proposed Decision says SPSE "has failed to identify a single term or condition of employment" in the SPP that is not covered by the LLNL Local Policy. (Proposed Decision, p. 21) SPSE's theory, however, was precisely that the LLNL Local Policy was consistently conformed to University-wide policy. (See Amended Complaint; see also Offer of Proof, filed 6-8-98, Exh. A, relevant excerpts of which are summarized in Table A of the accompanying Brief; and see Brief, pp. 13-16.)


8. The ALJ also failed to recognize that an "effect" or "impact" of the elimination of University-wide personnel policies at LLNL was that the LLNL policy would only follow University-wide policies in the future on a selective basis, compared to the consistent application of University-wide policies to LLNL between 1979 and 1996. A concrete and tangible example is the fact that the University-wide PPSM policies, which replaced the SPP policies on July 1, 1996, were not applied to the Laboratory (Proposed Decision, p. 6), and LLNL employees consequently lost the benefit of the expanded rights contained therein.


9. The ALJ erroneously failed to recognize that, by eliminating the application of University-wide policies to LLNL, Respondent eliminated the requirement that the Laboratory justify Local Policies which diverged from a specific University policy and replaced this requirement with a simple obligation to persuade the University that its Local Policy was permissible under a free-floating and undefined University policy. (Brief, pp. 18-21) In this way, Respondent abrogated its traditional role of maintaining an environment of academic freedom at the Laboratory by measuring LLNL Local Policies against University-wide personnel policies meant to ensure such an atmosphere for the University. (Ibid.)


10. After dismissing the Complaint on the grounds that the SPP and PPSM are "parallel policies which in many respects are similar in substance" (Proposed Decision, p. 21), the ALJ then asserted that there are several "instances where policies in the SPP have not been followed at the Laboratory" (id. pp. 9-10), and said this undercut SPSE's theory that LLNL policies were conformed to SSP. (Id. p. 25, fn. 10) Contrary to the ALJ's reasoning, the evidence shows that LLNL policies were conformed to University-wide personnel policies as a matter of practice (see Tables A & B), and that the differences cited by the ALJ between the LLNL Local Policies and the University-wide SPP policies were trivial and did not undercut SPSE's past practice theory. (Brief, pp. 9-10, fn. 10.) The SPP policies contemplate that campuses and laboratories will develop "local policies" which address issues peculiar to that facility. (Brief, pp. 14-15, fn. 14.) Further, a proper determination on this issue could not be made without affording SPSE the discovery requested in the subpoena duces tecum. Since the ALJ never ruled on the subpoena, SPSE was denied all discovery.


11. The ALJ failed to recognize that the new PPSM policies state on their face that they apply to the Laboratory, even though LLNL Local Policies are subject to an exception. (Brief, pp. 21-25) Since LLNL employees were, at one and the same time, made subject to, and granted an exception to, the expanded PPSM policies, these employees had the right to be notified of this action and afforded an opportunity to meet and discuss the matter with Respondent.


12. The ALJ erroneously concluded that there is no meet and discuss obligation when the University replaces one set of University-wide personnel policies with a different set under circumstances where there is "no bargaining obligation," there is "no actual change in employment conditions," the LLNL Local Policy is "parallel to the eliminated policy," and where "the University stands ready to meet and discuss actual changes in the future." (Proposed Decision, p. 24) This conclusion is erroneous because, in replacing the SPP policies with the PPSM policies without extending the PPSM policies to LLNL employees, Respondent breached a past practice of extending new rights and benefits of University-wide policies to employees at the Laboratory. The conclusion is also wrong because, by eliminating the application of all specific University-wide personnel policies to LLNL employees, Respondent foreclosed LLNL employees from automatically enjoying the benefit of expanded rights and privileges under University-wide policies as they develop in the future, consistent with the way in which such expanded rights and privileges had been extended to LLNL employees in the past. (Brief, Table B)


13. The ALJ erroneously found that: "[T]he fact that the University, in implementing the PPSM, granted expanded rights to employees outside the Laboratory does little to alter this view [i.e., that there is 'no requirement that would attach a meet and discuss obligation to such a decision because previously there was an "expectation" that the Local Policy would be conformed to reflect changes in the SPP']." (Proposed Decision, p. 25) Similarly, the ALJ erroneously found that "The University's decision to implement a policy that grants rights to employees beyond the Laboratory has little bearing on this question." (Ibid.) These findings and conclusions are erroneous because, as alleged in the Amended Complaint, there was an "established practice of conforming personnel policies at [LLNL] to University-wide personnel policies," and "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." (See Amended Complaint; see also Offer of Proof, Exh. A, and Brief, Table B.) The fact that Respondent announced in the same breath that University-wide policies would no longer apply to LLNL employees and granted expanded rights in new University-wide policies does not make the conduct any less of a unilateral change.


14. The ALJ says "[t]he 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." SPSE's position was that, if University-wide policies had remained in effect (either the SPP or the PPSM policies), "the flexible term employee classification change would not have occurred." (Proposed Decision, p. 26) But, said the ALJ, "there were no guarantees with respect to the outcome of proposed changes in policy prior to July 1, 1996, and the same situation continues," and "[p]olicy 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," so whether a particular 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." (Ibid.) The ALJ erred in this finding. Eliminating specific policies deprives LLNL employees of the right to future rights and benefits articulated in University-wide policies. The evidence was clear that, whenever expanded rights were granted in University-wide policies in the past, these same rights were applied to LLNL employees. (Brief, Table B.) Although it is not possible to predict the outcome of a particular proposal to revise personnel policies, it stands to reason that requiring the Laboratory to justify the proposal as an exception to a specific University-wide policy is a more stringent standard than justifying the proposed change under an amorphous and undefined standard, such as that described by Lubbe Levin. It was error to conclude that nothing more than speculation was involved in forecasting the outcome of a policy revision. The issue should have been considered in light of the specific changes in LLNL policy resulting from changes in University-wide policy between 1979 and 1996, and the specific revisions which LLNL had successfully and unsuccessfully argued for during that time. It was not possible to fully develop the evidence in this regard without compliance with SPSE's subpoena, which the ALJ never enforced.


15.

II. PAGE OR PART OF DECISION TO WHICH EXCEPTION IS TAKEN:



Portions of the Proposed Decision to which exception is taken are identified in Section I and the accompanying Brief in Support of Statement of Exceptions.



III. PORTIONS OF THE RECORD RELIED UPON:


Citations to the record below are set forth in Section I and the accompanying Brief in Support of Statement of Exceptions.



IV. GROUNDS FOR EACH EXCEPTION:


The specific grounds for each exception are set forth in Section I and explained in greater detail in the accompanying Brief in Support of Statement of Exceptions.



DATED: 13 Oct 1998

_______________________ ANDREW THOMAS SINCLAIR

Documents for further information:

Chronology of the Unfair Process

Statement of Exceptions

Brief in Support of Statement of Exceptions

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