California State University (California State Employees Association) (PERB 1093HA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	CSU DIVISION,
SEIU LOCAL 1000, 	AFL-CIO,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
Respondent.
) 	Case No. 	LA-CE-328-H
Request 	for Reconsideration
PERB Decision No. 	1093-H
PERB Decision No. 	1093a-H
July 21, 	1995
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Appearances: 	California 	State 	Employees Association by 	Claire
Iandoli, 	Attorney, 	for California State Employees' 	Association,
CSU Division, 	SEIU Local 1000, 	AFL-CIO; 	William G. 	Knight,
Attorney, 	for California State University.
Before Carlyle, 	Garcia and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	on a 	request 	for reconsideration1
filed by the California State Employees' 	Association, 	CSU
Division, 	SEIU Local 	1000, 	AFL-CIO 	(CSEA) 	of the Board's decision
in California State University 	(1995) 	PERB Decision No. 	1093-H.
In that 	decision, 	the Board dismissed CSEA's unfair practice
charge which alleged 	that 	the 	California 	State University 	(CSU)
P	1 ERB	PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	PERB Regulation
32410(a) 	states, 	in pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited to 	claims 	that 	the decision of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or newly discovered evidence 	or law
which was 	not 	previously available 	and 	could
not 	have been discovered with 	the 	exercise 	of
reasonable 	diligence.
)
)
_________________ )

violated section 3571(a) 	and 	(c) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA)2 when it unilaterally
suspended merit 	salary adjustments 	(MSA).
CSEA'S 	EXCEPTIONS
CSEA listed eight 	exceptions 	to 	the 	Board's 	decision 	in 	its
request 	for 	reconsideration; 	those 	exceptions 	are 	summarized
below.
Exception 	1: 	Since 	an arbitrator ruled that 	CSU's 	1988
action was 	in accordance with 	the 	1985-88 	collective bargaining
agreement 	(CBA), 	the record includes no evidence of a practice of
suspending MSAs by CSU. 	Furthermore, 	a provision of a prior CBA
is 	"insufficient" 	to 	constitute a past practice 	constraining
parties 	who 	have 	altered 	the provision 	in a 	later agreement.
Exception 2: 	The majority opinion was 	erroneous 	because 	it
applied 	a 	narrow holding 	from Marine 	& 	Shipbuilding Workers 	v.
NLRB 	(1963) 	320 F.2d. 	615 	[53 LRRM 2878]; 	cert. 	den. 	(1964)
375 U.S. 	984 	[55 LRRM 2134], 	but the court's broader holding was
that 	the 	employer 	cannot 	unilaterally 	change 	fundamental
conditions 	of 	employment. 	Wages are 	such a 	condition.
Exception 3: 	The durational 	language does not 	address 	CSU's
statutory 	obligation under HEERA after 	expiration 	of 	the
contract. 	The durational 	language 	should not be given effect
because 	it 	is 	not 	a 	clear and unmistakable waiver of 	CSEA's 	right
under HEERA to bargain over terms 	and 	conditions 	of 	employment.
2HEERA is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
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Exception 4: 	Contrary to 	the majority finding, 	HEERA
section 	3572 	precludes 	unilateral 	suspension of 	mandatory
subjects 	of bargaining until 	impasse 	or agreement 	occurs.3
Exception 5: 	Principles 	of 	labor law govern here, 	not
contract 	law. 	Under labor law, 	it 	is a 	fundamental 	rule 	that 	the
employer must 	maintain 	certain 	terms 	and 	conditions 	of 	employment
following 	expiration of 	a CBA during 	the parties' 	negotiations
over a 	successor agreement.
Exception 	6: 	Under Berkeley Unified School 	District 	(1994)
PERB Decision No. 	HO-U-564, 	the Board misinterpreted what
constitutes past 	practice.
Exception 	7: 	HEERA and 	labor 	law obligate 	CSU 	to negotiate
matters 	within the 	scope 	of 	representation 	following 	the
expiration of 	a CBA during 	the parties' 	negotiations 	over a
successor agreement; 	thus 	the majority opinion's 	reference 	to a
contractual 	and management 	right 	not 	to pay 	the MSAs 	is
erroneous.
Exception 	8; 	The 	continued payment 	of MSAs 	over a seven-
year period establishes 	the past practice. 	Furthermore,
Government 	Code 	section 	19832 	shows 	the 	Legislature's 	recognition
of 	the 	importance of MSAs, 	which are 	to be paid if 	the employee
meets 	certain standards 	of 	efficiency.
3The precedent 	CSEA cites 	in 	support 	of 	this 	interpretation
is 	California State University 	(1993) 	PERB Decision No.
H0-U-527-H. 	We 	note 	that unappealed proposed decisions 	do not
have a precedential 	effect 	in other cases, 	and accordingly we do
not 	consider 	them.
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CSEA concludes 	that 	the majority decision 	ignores 	the
concept 	of 	"past practice" 	and based 	its 	decision 	solely on
interpretation of 	existing 	contract 	language. 	This 	approach
misapplies 	PERB and National 	Labor Relations 	Board precedent 	and
threatens 	a 	fundamental 	rule 	of 	collective bargaining
(maintenance of 	the status quo during successor negotiations).
Finally, 	there was 	no evidence 	in the 	record that 	funds were
unavailable 	to pay MSAs 	in this 	case. 	CSEA requests 	that 	the
Board 	reconsider 	its 	decision and adopt 	the 	dissenting 	opinion 	of
Member Caffrey as 	its 	decision, 	awarding back pay plus 	interest
from June 	1, 	1992, 	until 	a new successor agreement was 	reached.
CSU'S 	RESPONSE 	TO 	EXCEPTIONS
CSU did not 	respond directly 	to 	each 	of 	CSEA's 	exceptions,
but 	it noted that 	no new law is 	cited. 	Also, 	CSU responds 	that
employers 	do not waive 	their 	right 	to 	exercise a power 	simply
because 	it has not previously exercised it. 	CSU's 	response 	to
exception 8 	was 	that Government 	Code 	section 19832 	does 	not apply
to CSU; 	it applies to Ralph C. 	Dills Act 	(Dills Act) 	employees.4
In conclusion, 	CSU supports 	the decision reached by the Board and
4The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Since 	this 	issue does 	not 	affect 	our decision on the
request 	for reconsideration, 	the Board makes 	no 	ruling on 	that
question.
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encourages 	the 	Board 	to 	deny 	the 	request 	for 	reconsideration,
which 	fails 	to meet 	the 	requirements 	of 	PERB Regulation 32410(a).
DISCUSSION
The 	sole 	issue before 	the Board 	in this 	request 	for
reconsideration 	is whether CSEA's 	exceptions 	cite newly-
discovered evidence 	or law or 	identify prejudicial 	errors 	of 	fact
in 	the Board's 	decision. 	Member Caffrey writes 	separately to
restate his 	dissent 	in the decided case, 	which is 	irrelevant 	to
the 	issue before 	the Board. 	Los Angeles Unified School 	District
(1993) 	PERB Decision No. 	964a is 	instructive on the best way to
deny a 	request 	for 	reconsideration and 	still 	be 	consistent 	with
one's 	prior 	separate 	opinion on 	the 	case 	in 	chief.
Reconsideration 	is 	not 	appropriate when a party merely
restates 	arguments 	and 	issues 	previously 	considered 	and 	rejected
by 	the 	Board 	in 	the 	underlying decision. 	(California 	State
Employees Association, 	Local 	1000 	(Janowicz) 	(1994) 	PERB Decision
No. 	1043a-S; 	California Faculty Association 	(Wang) 	(1988) 	PERB
Decision No. 	692a-H; 	Tustin Unified School District 	(1987) 	PERB
Decision No. 	626a; 	Riverside Unified School District 	(1987) 	PERB
Decision No. 	622a.) 	Since CSEA's 	exceptions 	simply disagree with
the 	legal 	conclusions 	reached by the Board, 	the 	request 	does 	not
meet 	the 	criteria in PERB Regulation 32410(a).
- 	- 	------------------
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ORDER
The 	request 	for reconsideration of 	the Board's 	decision 	in
California State University 	(1995) 	PERB Decision No. 	1093-H 	is
hereby DENIED.
Member Carlyle 	joined 	in 	this 	Decision.
Member Caffrey's 	concurrence begins 	on page 	7.
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CAFFREY, 	Member, 	concurring: 	I continue to support the
position 	stated 	in my 	dissent 	in 	California 	State 	University
(1995) 	PERB Decision No. 	1093-H 	(CSU). 	The majority opinion in
that 	case misapplies 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	and National 	Labor Relations Board precedent, 	and
misinterprets 	section 3572 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA) 	so severely, 	that 	it 	threatens 	the
fundamental 	rule 	of 	collective bargaining 	that 	an 	employer must
maintain 	certain 	terms 	and 	conditions 	of 	employment, 	including
wages 	and benefits, 	following expiration of a 	collective
bargaining agreement 	during 	the parties' 	negotiations 	over a
successor 	agreement.
The 	California 	State University 	(CSU) 	violated HEERA
section 3571(a) 	and 	(c) 	when it unilaterally suspended merit
salary adjustments 	(MSAs) 	for employees 	represented by 	the
California State Employees' 	Association, 	CSU Division, 	SEIU Local
1000, 	AFL-CIO 	(CSEA) 	on June 1, 	1992, 	prior to the completion of
bargaining with CSEA. 	Accordingly, 	as 	I 	indicated 	in my dissent
in CSU. 	I would have affirmed the proposed decision of 	the 	PERB
administrative law judge 	(ALJ). 	However, 	I would have modified
the 	remedy proposed by 	the ALJ 	to 	include 	a make whole provision,
ordering backpay plus 	interest 	to be paid 	to 	the 	employees
affected by 	CSU's 	unlawful 	MSA suspension.
The matter currently before the Board, 	however, 	is 	the
request 	by 	CSEA that 	the 	Board 	reconsider 	its 	decision 	in 	CSU.
PERB Regulation 32410 	enables 	any party to a decision of 	the
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Board 	itself 	to 	request 	the 	Board 	to 	reconsider 	that 	decision.
However, 	Section 32410(a) 	states, 	in pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the decision of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or newly discovered evidence 	or law
which was 	not 	previously 	available 	and 	could
not 	have 	been discovered with 	the 	exercise 	of
reasonable 	diligence.
The 	Board has 	adopted 	this 	strict, 	narrow standard 	for
reconsideration 	requests 	specifically 	to 	avoid 	the use 	of 	the
reconsideration process 	to 	reargue 	and/or 	relitigate 	issues 	which
have already been decided. 	In numerous 	reconsideration 	cases 	the
Board has 	reiterated this 	policy, 	declining 	to 	reconsider
arguments 	previously 	offered by parties 	and 	rejected 	in 	the
underlying decision. 	In short, 	PERB's 	reconsideration process
cannot be used to allow parties 	a 	second bite 	of 	the 	apple.
In 	the 	instant 	request, 	CSEA expressly adopts my dissenting
opinion 	in CSU as 	the basis 	of 	its 	request 	for 	reconsideration.
While 	I 	obviously agree with this viewpoint 	on 	the merits 	of 	the
underlying 	case, 	CSEA must point 	to prejudicial 	errors 	of 	fact
within the majority opinion 	in CSU, 	or cite 	newly discovered,
previously unavailable 	evidence 	or 	law, 	in order 	to 	support 	its
request 	for 	reconsideration of 	that 	decision. 	As 	noted by the
majority above, 	CSEA's 	request 	for reconsideration 	simply does
not 	comply with 	this 	requirement.
Therefore, 	since 	CSEA's 	request 	for reconsideration of 	the
Board's 	decision 	in 	CSU does 	not meet 	the 	standard described 	in
PERB Regulation 32410, 	I 	concur in the denial 	of 	that 	request.
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