California State University (California State Employees Association) (PERB 0756H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	LOCAL 	1000, 	SEIU,
AFL-CIO,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY,
Respondent.
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) 	Case No. 	S-CE-36-H
PERB Decision No. 	756-H
August 	31, 	1989
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Appearances: 	Howard Schwartz, 	Attorney, 	for California State
Employees' Association, 	Local 1000, 	SEIU, AFL-CIO; William B.
Haughton, 	Attorney, 	for California State University.
Before Porter, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
California State Employees Association, 	Local 	1000, 	SEIU, 	AFL-CIO
(CSEA) 	to the proposed decision 	(attached hereto) 	of the PERB
administrative 	law 	judge 	(ALJ) 	in an unfair 	labor practice 	case
filed by 	CSEA. 	CSEA had 	charged 	that 	the 	California 	State
University 	(University) 	changed 	its 	past practice by unilaterally
increasing parking 	fees 	for 	employees 	represented by 	CSEA,
thereby violating 	the 	Higher 	Education 	Employer 	Employee
Relations Act (HEERA) 	section 3571(c), and, derivatively (b).1
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	HEERA section 3571(b) 	and 	(c) 	states:
It 	shall 	be unlawful 	for the higher education
employer to:
__ )

(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
The ALJ 	found 	that 	long-standing 	contractual 	language 	gave
the University the right 	to 	set parking 	fees unilaterally, 	and
that 	the 	fee 	increase 	in this 	instance was 	in accordance with
past practice. 	He 	concluded that CSEA failed 	to 	establish that
the 	University violated 	its 	duty 	to meet 	and 	confer 	in good 	faith
when 	it 	increased the parking 	fees.
CSEA 	filed 	exceptions 	to 	the ALJ's 	proposed decision 	and 	the
University filed a response. 	CSEA claims 	that there 	is 	no
substantial 	evidence 	in the 	record to 	support the ALJ's 	finding
that CSEA 	failed 	to protest 	an 	increase 	in parking 	fees 	in 	1985
and 	that 	the 	University 	established 	a practice 	of 	unilaterally
setting 	fees 	at that time. 	CSEA's 	second exception is 	that there
is 	no 	substantial 	evidence to 	support 	a 	finding that CSEA was
excluded 	from the 	September 	1987 	moratorium that 	the 	University
placed on increasing parking 	fees. 	As 	a 	third and 	final
exception to the proposed decision, 	CSEA alleges 	that:
Notwithstanding past practice, 	parking fees
are 	a 	negotiable 	subject 	and 	substantial
evidence 	on the 	record 	establishes 	that 	CSU
refused and 	failed to 	meet 	and 	confer 	over 	an
increase 	in parking 	fees 	in 	1988 when
requested 	to do 	so by CSEA.
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Contrary to PERB Regulation 	32300(a)(3),2 CSEA fails 	to 	cite
the portions 	of 	the record that 	it 	contends 	support 	its
contentions. 	PERB's 	own review of 	the record 	failed to 	reveal
evidence to 	sustain CSEA's 	claims. 	The Board 	therefore 	adopts
the 	attached 	findings 	of 	facts 	and 	conclusions 	of 	the ALJ 	as 	its
own, 	and affirms 	the proposed decision.
ORDER
Upon the 	foregoing decision and 	the 	entire 	record 	in this
case, 	Unfair Practice Charge No. 	S-CE-36-H, 	California State
Employees Association, 	Local 	1000. 	SEIU. 	AFL-CIO v. 	California
State 	University 	is 	hereby DISMISSED.
Members 	Porter and Camilli 	joined 	in this 	Decision.
2 PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	Regulation 32300(a)(3)
states:
(a) 	A party may 	file with the 	Board 	itself
an original 	and 	five 	copies 	of a 	statement of
exceptions 	to a Board agent's proposed
decision 	issued pursuant to 	section 	32215,
and supporting brief, 	within 20 days
following the date 	of 	service of 	the decision
or as provided 	in section 32310. 	The
statement 	of 	exceptions 	and briefs 	shall be
filed with the 	Board 	itself 	in the
headquarters office. 	Service and proof 	of
service 	of 	the 	statement 	and brief pursuant
to 	section 32140 	are required. 	The 	statement
of 	exceptions 	or brief 	shall:
(3) 	Designate by page citation or
exhibit number the portions 	of 	the
record, 	if any, 	relied upon for
each exception; 	. 	. 	.
W	
3

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE EMPLOYEES ASSN.,
LOCAL 	1000, 	SEIU, 	AFL-CIO,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY,
Respondent.
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)
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) 	Unfair Practice
Case No. 	S-CE-36-H
PROPOSED 	DECISION
(4/3/89)
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Appearances: 	Ronald E. 	Almquist, 	Senior Labor Relations
Representative, 	for the California State Employees' 	Association;
William B. 	Haughton, 	Attorney, 	for the California State
University.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
An 	exclusive 	representative here 	contends 	that 	a 	university
employer 	failed 	to 	meet 	and 	confer 	in good 	faith when 	it
unilaterally 	increased 	fees 	charged 	to 	unit 	members 	who park 	in
university-owned 	lots. 	The university rejects 	the allegation,
arguing 	that 	the 	union waived 	its 	right 	to bargain through
specific 	contractual 	language 	and past practice.
The California State Employees Association, 	Local 	1000,
SEIU, 	AFL-CIO, 	(CSEA) 	filed the charge which commenced this
action on June 27, 	1988. 	The general counsel of the Public
Employment Relations Board 	(PERB) 	followed on August 29, 	1988,
with a 	complaint against the California 	State University
(University). 	The complaint alleges that on or about
May 6, 	1988, 	the University changed its past practice by
unilaterally 	increasing parking 	fees 	for 	employees 	in 	four units
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
____
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represented by CSEA. 	The 	complaint 	alleges 	that 	the 	University
thereby 	violated 	Higher 	Education Employer 	Employee 	Relations 	Act
(HEERA) 	section 3571(c) and, derivatively, 3 5 7 K b ) . 1
The 	University answered 	the 	complaint 	on 	September 	16,
1988, 	denying that 	it had 	failed to meet and confer in good 	faith
and 	affirmatively 	asserting 	that 	CSEA had 	contractually waived
the right to bargain over parking fees. 	In addition, 	the
University 	filed a motion that 	the 	matter be deferred 	to
grievance 	arbitration. 	This 	motion for deferral was 	later
withdrawn on Decembers, 	1988.2
A hearing was 	conducted 	in Sacramento on January 	19, 	1989.
With the 	filing of post-hearing briefs, 	the matter was 	submitted
for decision on March 27, 	1989.
1 Unless 	otherwise indicated, 	all 	statutory references 	are to
the Government Code. 	The 	Higher Education Employer Employee
Relations Act 	is 	found at Government Code 	section 	3560 	et 	seq.
In relevant part, 	section 3571 provides as 	follows:
It 	shall be unlawful 	for the higher education employer to:
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail to engage in meeting and
conferring with 	an 	exclusive 	representative.
2Deferral 	is 	not 	jurisdictional 	under HEERA because 	there 	is
no provision for it within the 	statute. 	This distinguishes 	cases
under 	HEERA 	from 	those decided 	under 	the 	Educational 	Employment
Relations Act, 	Government Code 	section 3540 	et 	seq. 	See Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646.
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FINDINGS 	OF 	FACT
The California 	State 	University 	is 	a higher 	education
employer under HEERA. 	CSEA at all 	times 	relevant has 	been the
exclusive 	representative 	of 	four bargaining units 	of 	University
employees. 	Those units are Unit 2 	(Health Care Support), 	Unit 5
(Operations Support), 	Unit 7 	(Clerical/Administrative Support
Services) 	and Unit 	9 	(Technical Support Services). 	CSEA and the
University have 	had 	collective 	bargaining 	agreements 	for units 	5
and 	7 	since 	1982. 	They have had agreements 	for units 	2 	and 	9
since 	1983.
All 	agreements 	which 	the parties 	have 	entered 	since 	the
beginning 	of 	their 	relationship 	have 	contained 	the 	following
provision about parking:
An 	employee wishing 	to park at 	any CSU
facility 	shall pay the CSU parking 	fee. 	The
CSU 	shall provide 	for payroll 	deductions 	for
this 	purpose upon written authorization by
the employee.3
The 	provision 	first 	appeared 	in the 	1982 	agreement 	covering 	units
5 	and 	7 	and was picked up without change 	in 	1983 	for units 	2
and 	9. 	Despite CSEA efforts 	to change the language, 	it was
carried forward on July 1, 	1985, 	in a three-year successor
3This provision is 	set out at Article 	20.10 	of 	the 	1987-1988
agreement between the parties. 	Parking fees 	are a negotiable
subject under HEERA. 	Regents 	of 	the University of 	California
(1983) 	PERB Decision No. 	356-H.
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agreement 	covering all 	four CSEA units.4 CSEA negotiator Harold
Horner 	testified that CSEA elected 	to 	continue 	the 	status 	quo 	in
1985 	rather than go 	to 	impasse 	over parking.
The 	1985 agreement contained a July 1, 	1987, 	wage and
benefit reopener. 	During the reopener negotiations, 	CSEA 	sought
several 	changes 	in the parking 	clause 	including 	language 	that
"parking 	fees 	shall 	remain at 	current rates 	through
June 	30, 	1988." 	When CSEA discovered, 	during negotiations, 	that
the 	University planned an 	increase 	in parking 	fees, 	it pressed
for 	its 	proposed 	freeze 	in rates. 	Assistant Vice Chancellor John
S. 	Hillyard 	attended one 	negotiating 	session to 	explain the 	need
for the 	increase. 	However, 	CSEA was 	not persuaded and continued
to 	insist 	on assurances 	that parking 	fees 	would 	not be 	increased
without prior negotiations.
The 	University 	continued 	to 	reject 	CSEA's 	proposed 	changes
and 	insisted 	that 	the parking 	language 	remain unchanged. 	In July
of 	1987, 	CSEA filed a request 	for determination of 	an impasse
with the PERB. 	On or about July 27, 	1987, 	the PERB's Los Angeles
Regional 	Office 	found the 	existence 	of 	an 	impasse 	on 	several
issues, 	including parking fees, 	and appointed a mediator. 	After
further discussions during mediation, 	CSEA negotiators, 	on
September 	14, 	1987, 	signed a reopener agreement that left the
parking 	provision 	unchanged.
4University 	negotiator 	LaVerne 	Diggs 	testified without
contradiction that 	in every round of 	negotiations 	since 	the 	first
contract, 	CSEA has proposed that the parking fees 	not be
increased 	during 	the 	contract 	term.
4

Although 	the 	reopener agreement 	left 	the 	contractual 	parking
language as 	it was, 	CSEA negotiator Ronald Almquist testified
that CSEA did 	secure 	a 	separate 	oral 	agreement with the
University 	regarding parking. 	CSEA contends 	that 	the 	University
orally 	agreed 	not 	to 	increase parking 	fees 	until 	the 	completion
of 	bargaining over the 	1988 	successor agreement.
In 	support 	of 	its 	belief 	there was 	such an understanding on
fees, 	CSEA relies 	upon remarks 	made by Vice Chancellor Caesar
Naples 	before 	a 	committee 	of 	University 	Trustees 	on
September 	15, 	1987. 	During the meeting, 	Mr. 	Naples told the
Trustees 	that 	on the 	advice of 	counsel 	"the parking 	fees 	cannot
be 	raised 	for the 	CFA 	[California 	Faculty Association] 	or CSEA
representative 	[sic] 	employees until 	negotiations 	have been
completed." 	He 	suggested that 	the 	Trustees' 	resolution on 	fees
be written to 	reflect the 	negotiations 	requirement.5
The following day, 	September 	16, 	1987, 	the University Board
of 	Trustees 	adopted 	a resolution 	increasing parking 	fees 	to 	a
monthly minimum rate 	of 	$12 	effective 	in September of 	1988.
Regarding negotiations, 	the resolution reads as 	follows:
RESOLVED, 	That any increase in this 	fee 	shall
not be 	implemented 	for 	employees 	represented
by 	certain 	exclusive 	representatives 	until
collective 	bargaining 	negotiations 	have 	been
completed 	on this 	matter with 	those 	certain
exclusive 	representatives.
5	5 This remark, 	as the University points out, 	did not arise 	in
a discussion about CSEA. 	It was 	in response to a 	comment by a
member of 	the board of directors 	of 	the 	California 	Faculty
Association.
55

This 	resolution was 	shown to Mr. 	Almquist prior to 	its 	adoption
and he 	agreed 	to 	it.
Despite his 	comments 	the day before 	the resolution was
adopted, 	Mr. 	Naples 	testified that the resolution did not pertain
to parking 	fees 	for employees 	represented by CSEA. 	He 	said 	that
the reference to 	"certain exclusive representatives" 	meant the
California 	Faculty Association 	and 	the 	Statewide 	University
Police Association. 	He 	said that 	the 	contracts with those 	two
organizations 	were 	silent as 	to parking 	fees 	and 	that 	the
University was 	required 	to 	negotiate with 	them before 	increasing
parking 	fees.
By contrast, 	Mr. 	Naples testified, 	the University already
was 	empowered by 	existing 	contractual 	language 	to 	increase 	the
parking 	fees 	for 	employees 	in the units 	represented by CSEA.
Mr. 	Naples 	testified that when he 	referred to negotiations 	during
the 	Trustees 	meeting he was 	describing the 	time period after the
expiration of 	the 	existing agreement with CSEA. 	The 	contract
between 	the 	University and CSEA was 	scheduled 	to 	expire 	on
June 	30, 	1988, 	and the University did not 	intend to 	increase the
fees 	until 	the 	fall 	semester of 	1988, 	which would have been
several 	months 	after expiration of 	the contract. 	He 	said his
remarks 	anticipated 	that 	the parties would have 	negotiated 	a 	new
agreement by the 	effective date of 	the 	fee 	increases.
Following the Trustees meeting of September 	16, 	1987, 	CSEA
believed 	that 	the parking 	fee 	question was 	settled until 	the 	1988
6
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negotiations. 	However, 	in April and May of 	1988, 	circulars6
announcing parking 	fee 	increases 	were 	distributed 	on 	several
campuses. 	On June 	1, 	1988, 	Mr. 	Almquist wrote to Vice Chancellor
Naples 	questioning 	the 	announced 	fee 	increases 	and 	requesting
that 	they be rescinded. 	CSEA's protest notwithstanding, 	the
parking 	fees were 	increased as 	scheduled 	in September of 	1988.
The minimum rate was 	raised 	from $7.50 	to 	$12 	per month.
Negotiations 	for a 	successor 	agreement 	commenced 	in May 	and
were 	underway 	at 	the 	time plans 	for the 	September parking 	fee
increases 	became generally known. 	The 	contract 	expired on
June 	30, 	1988, 	and the parties remained without a negotiated
agreement at 	the 	time of 	the hearing 	in January of 	1989.
There has 	been one other 	increase 	in parking 	fees 	since 	CSEA
became 	exclusive representative of 	the 	four bargaining units.
That 	increase 	occurred 	in 	1985 	when the minimum rate was 	boosted
from $5 	to $7.50 per month. 	In 	1985, 	as 	in 	1988, 	the amount of
the 	increase was 	fixed by 	the 	University 	at 	rates 	calculated 	as
necessary 	to 	fund 	existing 	and planned parking 	facilities.7
6The 	content of 	the 	circulars 	was 	formalized 	in a memo 	of
May 6, 	1988, 	from University administrators 	to campus presidents.
The 	memo 	also 	informed the presidents 	that 	the parking 	fee
increases 	would 	not 	apply 	immediately 	to 	members 	of 	the 	faculty
unit. 	The delay was 	to permit 	compliance with 	"all 	requirements
in connection with HEERA." 	A second memo, 	on July 20, 	1988,
advised 	campus 	presidents 	that members 	of 	the campus 	police unit
also were exempt, 	for the time being, 	from the 	fee 	increase.
V7By law, 	the construction, 	maintenance and operation of
University parking 	lots 	is 	a 	self-supporting activity. 	Fees 	must
be 	set to 	generate 	sufficient 	income to 	cover all 	costs.
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Although 	the 	University 	notified CSEA 	in advance 	of 	the 	1985
.increase and discussed the matter at the table, 	the 	increase
essentially was 	unilateral. 	Vice Chancellor Naples 	described the
1985 	increase as 	a matter of 	the University 	"exercis[ing] 	our
right to 	increase the parking 	fees." 	CSEA had no voice 	in
setting 	the 	amount or timing 	of 	the 	1985 	parking 	fee 	increase and
CSEA 	filed no 	grievance 	or unfair practice 	charge as 	a result of
that action.
LEGAL 	ISSUE
Did 	the 	California 	State 	University 	fail 	to meet 	and 	confer
in good 	faith by unilaterally 	increasing parking 	fees 	in 	units
represented by CSEA 	and 	thereby violate 	HEERA 	section 	35 71(c)
and, 	derivatively, 	3571(b)?
CONCLUSIONS 	OF 	LAW
It 	is well 	settled that 	an employer 	that makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its 	duty to meet and negotiate 	in good faith. 	NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	Such unilateral changes are
inherently destructive of 	employee 	rights 	and 	are 	a 	failure 	per
se of 	the duty to negotiate 	in good faith. 	See Davis 	Unified
School District, 	et al. 	(1980) 	PERB Decision No. 	116, 	State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S. 	These principles are applicable to cases decided
under HEERA. 	See Regents 	of 	the University of California 	(1983)
PERB Decision No. 	356-H.
88

Established practice 	may be 	reflected 	in 	a 	collective
bargaining agreement, 	Grant Joint Union High School 	District
(1982) 	PERB Decision No. 	196, 	or where the agreement is vague or
ambiguous, 	it may be determined by an examination of bargaining
history, 	Colusa Unified School 	District 	(1983) 	PERB Decisions
No. 	296 and 296(a), 	or the past practice, 	Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279, 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51.
The 	question here 	is whether the 	employer made 	a unilateral
change. 	An employer makes 	no unilateral 	change where 	it 	acts 	in
accord with past practice, 	Oak Grove School 	District 	(1985) 	PERB
Decision No. 	503, 	or takes 	actions authorized by specific
contractual 	language, 	Marysville Joint 	Unified 	School 	District
(1983) 	PERB Decision No. 	314.
CSEA argues 	that prior to 	entering 	into the 	1987 	reopener
agreement, 	it reached an understanding with the 	University that
the parking 	fee 	issue would be deferred 	for resolution 	in the
1988 negotiations. 	This agreement, 	CSEA contends, 	is reflected
in the 	comments 	of Vice Chancellor Naples 	to the Trustees 	and the
proviso 	adopted by 	the Trustees 	when they 	ordered the 	fee
increase. 	However, 	CSEA concludes, 	the University did not 	live
up 	to 	the 	deal 	and 	increased 	unilaterally before 	agreement was
reached 	on a 	successor contract.
The 	University argues 	that 	the 	gravamen of 	the 	complaint 	is
that 	CSEA was 	not 	given prior notice 	and the opportunity to 	meet
and 	confer over the decision to 	implement 	the parking 	fees. 	The
99

University asserts 	that 	the 	facts 	are 	clear that CSEA was 	given
notice, 	thereafter had the opportunity to bargain, 	did bargain,
and 	ultimately 	consented 	to 	the 	increase 	by 	signing 	the
September 	14, 	1987 agreement. 	In light of the past practice and
bargaining history, 	the University concludes, 	CSEA's 	signature on
the 	September 	1987 	reopener agreement was 	an acceptance 	of 	the
fee increase.
This 	case 	can be decided on the basis 	of 	the past practice.
The past practice, 	which is 	set out in the contract, 	provides
that 	an 	"employee wishing to park at 	any CSU 	facility 	shall 	pay
the CSU parking 	fee." 	The article does 	not 	specify the 	amount 	of
the 	fee but the description of the 	fee as 	"the CSU parking 	fee"
implies 	that the University will 	set the amount. 	This 	indeed is
what 	happened 	on the 	only prior 	occasion that 	the 	fee 	has 	been
increased 	since CSEA became the 	exclusive representative. 	In
1985, 	the University purporting to act under its 	contractual
authority raised the minimum parking 	fee 	from $5 	to 	$7.50. 	CSEA
made no 	effort to 	challenge this 	increase.
Although 	the 	contract had 	expired by 	the 	date 	the parking
fees 	were 	increased 	in 	1988, 	the 	contractually 	created practice
remained 	in effect. 	The 	contract as 	interpreted and applied by
the parties 	strongly 	suggests 	that 	CSEA had 	long 	ago 	ceded 	to 	the
University 	the 	authority to 	unilaterally 	increase parking 	fees.
Bargaining history 	supports 	this 	conclusion. 	Despite 	its
position here, 	it 	is apparent that CSEA has 	not previously
believed 	that 	the 	University was 	required 	to 	negotiate 	before
10

increasing parking fees. 	In various 	negotiations, 	CSEA has
proposed 	changes 	that would 	limit 	the 	authority 	of 	the 	University
to 	increase parking 	fees. 	The most recent 	example was 	in 	1987
when CSEA proposed 	that 	"parking 	fees 	shall 	remain at 	current
rates 	through June 	30, 	1988." 	CSEA would have had no need to
make 	such a proposal 	if 	it believed that 	the 	University were
obligated by 	the 	existing 	language 	to 	negotiate prior 	to
implementing 	fee 	increases.
In arguing that 	the 	increase 	in fees was 	a unilateral
change, 	CSEA relies 	on the remarks 	of Vice Chancellor Naples 	and
the 	resolution 	subsequently 	adopted by 	University 	Trustees. 	CSEA
contends, 	in effect, 	that these 	statements 	show that the parties
agreed 	to 	change 	the past practice 	and 	subject 	future 	fee
increases 	to negotiations. 	CSEA argues 	that the University
reneged on the agreement when 	it put the 	new rates 	into 	effect 	in
September of 	1988.
I 	do 	not doubt 	the 	sincerity of CSEA's 	belief 	that 	it had 	an
agreement with 	the 	University not 	to 	increase parking 	fees 	until
after the completion of 	negotiations. 	But CSEA has 	not 	shown
that 	the 	University 	joined 	in 	such 	an understanding. 	Neither 	the
Trustees' 	resolution nor the comments of Mr. 	Naples 	support a
conclusion 	that 	the 	University had 	committed 	itself 	not 	to
increase parking 	fees 	until 	after the 	completion of 	negotiations.
The 	resolution is unclear on its 	face. 	It makes 	no 	specific
mention of 	CSEA and 	its 	use 	of 	the 	terminology 	"certain 	exclusive
representatives" 	is ambiguous 	at best. 	The Naples 	statement was
11

a brief 	comment during a 	lengthy discussion on parking 	fees.
While 	the 	remark was 	a 	recognition of 	the University's 	statutory
obligations, 	it does 	not purport to 	set out 	some newly agreed-to
duty 	to 	bargain with CSEA.
As 	the University argues, 	there 	is 	no evidence that the
University 	at 	any time 	during 	the 	reopener 	ever retracted 	or
modified 	its position on parking 	fees. 	To the contrary, 	the
record 	establishes 	that 	the 	University's 	consistent position was
maintenance of the 	status 	quo, 	i.e., 	the existing language on
parking 	fees. 	Only hours before Mr. 	Naples 	spoke to the
Trustees, 	CSEA acceded to the University's 	position by entering
into 	a 	reopener agreement 	that 	left 	the 	contractual 	parking 	fee
language unchanged. 	CSEA's 	own conduct 	in 	signing 	the reopener
agreement was 	inconsistent with 	its 	position that 	it was 	the
University that 	conceded on parking 	fees. 	If 	the 	University made
the 	concession, 	why was 	it CSEA that dropped its 	contractual
proposal? 	The written document 	suggests 	that 	it was 	CSEA, 	not
the University, 	that gave up on parking 	fees.
A 	further problem with 	CSEA's 	reliance 	upon the 	Trustees'
resolution and the Naples' 	statement 	is 	that neither changes 	the
past practice. 	Changing the past practice would have required
some 	affirmative action, 	such as 	new contract language, 	that
would 	have 	restricted 	the 	authority 	of 	the 	University 	to 	increase
fees. 	No 	such 	language was placed 	in the 	contract on
September 	14, 	1987, 	when the reopener was 	entered into. 	As 	the
University argues, 	CSEA agreed to continue the 	status 	quo when it
12
'

accepted 	continuation of 	the 	unchanged parking 	fee 	language 	in
the September 14, 	1987, 	agreement.
In a case 	involving a unilateral 	change, 	the 	charging party
must 	show action which deviated 	from the 	status 	quo. 	Santa Maria
Joint Union High School 	District 	(1985) 	PERB Decision No. 	507.
Here, 	long-standing contractual 	language 	appears 	to give the
respondent the 	right 	to 	set parking 	fees 	unilaterally. 	The past
practice 	is 	that the 	respondent 	in 	fact has 	previously 	set
parking 	fees 	unilaterally. 	The 	charging party has 	sought, 	but
failed, 	to get 	the contract changed. 	There were 	some ambiguous
discussions 	between the parties 	in 	1987 	about a change 	in the
past practice. 	However these 	discussions 	are nowhere 	reflected
in the text of 	the 	subsequent 	contractual 	agreement. 	The parking
fee 	language remains 	unchanged.
The burden of proof 	for 	showing a 	change 	in the past
practice 	is 	that of the 	charging party. 	Oak Grove School
District, 	supra. 	PERB Decision No. 	503. 	On this set of facts, 	I-
cannot conclude that CSEA has 	met 	its burden of proof. 	The
charging party has 	failed 	to 	establish by a preponderance 	of 	the
evidence 	that 	the 	University made 	any unilateral 	change 	and
thereby 	failed to meet and 	confer in good 	faith. 	Accordingly, 	I
conclude 	that 	the 	complaint must be dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and 	the 	entire record 	in this 	matter, 	unfair practice 	charge
S-CE-36-H, 	California State Employees Association. 	Local 	1000.
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SEIU. 	AFL-CIO v. 	California State University, 	and the companion
PERB 	complaint 	are 	hereby 	DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	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 California Administrative
Code, 	title 8, 	part III, 	section 32300. 	A document is 	considered
"filed" 	when actually received before 	the 	close 	of 	business
(5:00 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
California Administrative Code, 	title 8, 	part III, 	section 32135.
Code 	of 	Civil 	Procedure 	section 	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 California Administrative Code, 	title 	8,
part III, 	sections 	32300, 	32305 and 32140.
Dated: 	April 3, 	1989
RONALD E. 	BLUBAUGH
Administrative 	Law 	Judge
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