California State University (California Faculty Association) (PERB 0799H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA STATE UNIVERSITY,
Respondent.
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) 	Case No. 	LA-CE-239-H
PERB 	Decision No. 	799-H
March 28, 	1990
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Appearances: 	Reich, 	Adell & Crost by Glenn Rothner, 	Attorney,
for the California Faculty Association; 	William B. 	Haughton,
Attorney, 	for the California 	State University.
Before Craib, 	Shank and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California 	Faculty Association 	(CFA) 	to 	the 	attached proposed
decision of a PERB administrative 	law judge 	(ALJ). 	The ALJ 	found
that the California 	State University 	(CSU) 	violated 	section 	3571,
subdivisions 	(b), 	(c) 	and 	(e) 	of the Higher Education Employer-
Employee 	Relations Act 	(HEERA)1 by 	failing to provide relevant
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571, 	subdivisions 	(b), 	(c) 	and (e),
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.
(e) 	Refuse to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3590).
and necessary 	information, 	but 	found no merit 	in CFA's
allegations 	that 	CSU 	engaged 	in 	surface 	bargaining 	or made
unlawful 	unilateral 	changes 	in 	long-term 	and daily use parking
rates. 	CFA excepts 	only to the 	finding that CSU did not 	engage
in 	surface bargaining and to the ALJ's 	failure 	to 	include 	in the
proposed 	remedy 	a 	bargaining 	order 	and 	restoration of 	the 	status
quo.2 CFA also 	requests 	that 	the 	record be 	reopened 	so 	that 	it
may 	submit 	newly 	discovered 	evidence 	of 	bad 	faith 	bargaining 	on
the part of CSU. 	CSU filed no 	exceptions.
We have 	reviewed the entire record 	in this 	case, 	including
the proposed decision, 	CFA's 	exceptions 	and CSU's 	response
thereto, 	and, 	finding the ALJ's 	findings 	of 	fact and conclusions
of 	law to be 	free of prejudicial 	error, 	we affirm the 	conclusion
that 	CSU did not 	engage 	in 	surface bargaining. 	In the discussion
that 	follows, 	we address 	the motion to reopen the 	record and the
exceptions 	to 	the proposed 	remedy.3
2 Since 	the ALJ's 	findings 	and 	conclusions 	concerning 	all
other 	allegations were not 	excepted 	to, 	they have become 	final
and 	are 	not before 	the Board.
'CFA raised no 	arguments 	in 	its 	exceptions 	concerning
surface 	bargaining 	that were 	not 	fully 	and 	correctly 	addressed 	by
the ALJ 	in his proposed decision; 	therefore, 	as we are adopting
that portion of 	the proposed decision, 	it 	is unnecessary to
address 	the 	exceptions here.
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	2

DISCUSSION
Motion To 	Reopen 	The 	Record
CFA asserts 	that 	it 	has 	newly discovered 	evidence 	that
further 	establishes 	CSU's 	bad 	faith 	in bargaining over parking
fees. 	The proffered evidence consists 	of 	two documents which
reflect public 	transit 	subsidy programs 	at 	CSU 	Long Beach 	and 	CSU
Fullerton, 	adopted 	in conjunction with the 	South Coast Air
Quality Management District. 	CFA asserts 	that this 	evidence
reflects 	bad 	faith bargaining because 	it 	is 	inconsistent with
CSU's 	statements 	at 	the bargaining 	table that CSU was 	not
interested in 	such programs. 	In response, 	CSU claims 	that this
evidence 	is 	not newly discovered because mention of 	the 	subsidy
programs was made in its May 	10, 	1988 response to one of CFA's
information requests. 	CSU further asserts 	that, 	in any event,
the 	evidence 	is 	not helpful 	to CFA because 	the 	relatively 	low use
of 	the 	few 	subsidy programs 	in 	existence demonstrates 	that 	such
programs 	could not be 	of 	significant help 	in curing a 	systemwide
shortage 	of parking.
PERB Regulation 32320, 	subdivision 	(a)(2), 	provides that the
Board may 	reopen 	the 	record 	for 	the 	taking 	of 	further 	evidence,
but 	it does 	not provide a 	standard to be 	applied 	to determine
when it 	is 	appropriate to do 	so.4 However, 	in San Mateo
Community College District 	(1985) 	PERB Decision No. 	543, 	the
Board 	adopted 	the 	standard 	set 	out 	in Regulation 	32410, 	which
4PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq.
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governs 	requests 	for reconsideration. 	Regulation 	32410,
subdivision 	(a), 	provides 	that reconsideration may be granted on
the basis of 	"newly discovered evidence 	. 	. 	. 	which was not
previously 	available 	and 	could 	not 	have 	been discovered with 	the
exercise 	of 	reasonable diligence."
CFA's 	stated purpose 	in offering the 	"new" 	evidence 	is 	to
show that 	CSU 	concealed 	the 	fact 	that 	it 	had any 	interest 	or
involvement 	in such 	subsidy programs. 	However, 	while the
particular documents 	sought 	to 	be 	introduced by CFA may have 	been
"newly discovered," 	information CSU provided 	to 	CFA 	in May 	of
1988 	did mention the bus 	subsidy programs. 	With the 	exercise of
reasonable diligence, 	i.e., 	a careful reading of the materials
provided 	in May of 	1988, 	CFA would have discovered the 	existence
of 	the 	subsidy programs 	at 	that 	time 	and 	could have used the
evidence 	as 	it 	saw fit at 	the unfair practice hearing 	in 	early
1989. 	Therefore, 	we conclude that the proffered evidence was
previously 	available 	and 	could 	have 	been discovered with 	the
exercise of reasonable diligence; 	accordingly, 	the record 	should
not 	be 	reopened.
The 	Proposed 	Remedy
The ALJ 	found 	that 	CSU violated 	its 	duty to 	bargain by
failing to provide to CFA, 	or unreasonably delaying 	the provision
of, 	the 	following relevant and necessary 	information: 	(1)
requests 	for proposals 	for 	construction of 	new parking
facilities; 	(2) 	the number of 	faculty parking permits 	sold by
category 	or duration and 	the 	revenue 	generated 	therefrom; 	and 	(3)
A	4

total parking revenue 	for 	1988-89. 	The ALJ dismissed three 	other
allegations 	claiming that 	CSU 	failed 	to provide 	information.
The 	proposed 	remedy 	for the 	information violations 	found by
the ALJ 	is 	a 	cease-and-desist order arid a posting of 	a 	notice to
employees. 	CFA argues 	that this 	remedy does 	not adequately
address 	the 	adverse 	effects 	upon the 	bargaining process 	that
resulted 	from the 	failure 	to provide 	information. 	CFA 	suggests
that a return to the 	status quo 	is warranted, 	including a
bargaining 	order and 	reimbursement 	of 	the 	amount 	of 	the 	increase
in parking fees.
In 	some circumstances, 	a 	failure to provide necessary and
relevant 	information 	could 	interfere with 	negotiations 	to 	the
extent that 	a 	return to 	the 	status 	quo 	and a bargaining order
would be a proper remedy. 	However, 	in this 	case, 	we agree with
the ALJ 	that, 	while 	the refusals 	to provide 	information may have
hampered bargaining 	somewhat, 	the 	record 	supports 	the 	conclusion
that 	the parties would have 	reached 	impasse 	even 	if 	the
information violations had not occurred. ' In addition, 	CFA did
not 	except 	to 	the ALJ's 	findings 	that 	the unilateral 	changes 	in
parking 	rates 	that 	actually 	took place were 	not 	unlawful.
Therefore, 	a remedy which includes a return to the 	status quo, 	a
5 CFA disputed CSU's 	declaration of 	impasse, 	but a PERB
regiona
' l 	director 	found that 	a 	genuine 	impasse 	existed. 	On
appeal, 	the Board affirmed that 	finding. 	(California 	State
University 	(California Faculty Association) 	(1988) 	PERB Order No.
Ad-177-H.)
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bargaining 	order and 	reimbursement 	of 	the 	amount 	of 	the 	increase
in parking 	fees 	is 	not appropriate.6
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in this 	case, 	it 	is 	hereby ORDERED that the
California 	State 	University 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing or 	failing 	to bargain and to participate
in 	good 	faith 	in 	statutory 	impasse procedures 	by 	failing 	to
provide to the California Faculty Association 	(CFA), 	or
unreasonably delaying the provision of, 	the 	following relevant
and necessary 	information: 	(a) 	requests 	for proposals 	for
construction of new parking facilities; 	(b) 	the number of 	faculty
parking permits 	sold by 	category 	or duration and 	the 	revenue
generated therefrom; 	and 	(c) 	total parking revenue 	for 	1988-89.
6The 	cases 	cited by CFA are 	inapposite. 	In Modesto 	City
Schools 	and High School District 	(1985) 	PERB Decision No. 	518,
the 	Board ordered that 	the 	union be 	allowed 	to 	reopen a 	grievance
because 	it 	had been denied vital 	information necessary 	to pursue
the grievance. 	In Hamburg Shirt Corporation 	(1969) 	175 NLRB 	284
and Barney Manufacturing. 	Inc. 	(1975) 	219 NLRB 41, 	the National
Labor Relations Board 	(NLRB), 	despite having found that the
employers 	had 	not 	engaged 	in 	surface bargaining, 	ordered
bargaining 	to 	resume because 	the 	unions 	had been unlawfully
denied 	the 	opportunity to 	make 	their own time 	studies 	in
preparation 	for bargaining over piece rates. 	However, 	those
decisions 	turned 	on 	the NLRB's 	finding 	that 	the 	unlawful 	conduct
prevented 	the 	unions 	from being 	able 	to 	bargain 	intelligently
over a fundamental issue 	(piece rates). 	Here, 	it has been found
that 	the 	violations 	are 	of 	a 	minor nature 	that did not 	seriously
affect negotiations.
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2. 	By the 	conduct described in paragraph 	1. 	above,
interfering with the 	right 	of CFA to 	represent 	its 	members 	during
negotiations 	and 	statutory 	impasse procedures.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject 	to 	reconsideration pursuant 	to
PERB Regulation 	32410, 	post at all work 	locations where notices
to 	employees 	customarily are placed, 	copies 	of the Notice
attached as 	an Appendix hereto, 	signed by an authorized agent of
the 	employer. 	Such posting 	shall 	be maintained 	for a period of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken to 	ensure that this 	Notice 	is 	not reduced 	in 	size, 	defaced,
altered 	or 	covered by any material.
2. 	Written notification of the actions 	taken to 	comply
with this 	Order 	shall be made 	to 	the 	Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with her 	instructions.
The motion to 	reopen the 	record 	is 	DENIED and 	it 	is 	further
ORDERED 	that 	all 	other allegations 	in the 	charge 	and 	complaint
are 	hereby DISMISSED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-2 3 9-H,
California Faculty Association v. 	California State University, 	in
which all parties 	had the right to participate, 	it has 	been 	found
that 	the 	California 	State 	University violated 	section 	3571,
subdivisions 	(b), 	(c) 	and 	(e) 	of the Higher Education Employer-
Employee Relations Act.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing or 	failing to bargain and to participate
in 	good 	faith 	in 	statutory 	impasse procedures 	by 	failing 	to
provide to the California Faculty Association 	(CFA), 	or
unreasonably delaying the provision of, 	the 	following relevant
and necessary information: 	(a) 	requests 	for proposals 	for
construction of new parking facilities; 	(b) 	the number of 	faculty
parking permits 	sold by 	category or duration and 	the 	revenue
generated therefrom; 	and 	(c) 	total parking revenue 	for 	1988-89.
2. 	By the conduct described in paragraph 	1. 	above,
interfering with the 	right 	of 	CFA to 	represent 	its 	members 	during
negotiations 	and 	statutory 	impasse procedures.
Dated: 	CALIFORNIA 	STATE 	UNIVERSITY
By Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY,
Respondent.
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) 	Unfair 	Practice
Case No. 	LA-CE-239-H
PROPOSED 	DECISION
(8/21/89)
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Appearances: 	Edward R. 	Purcell, 	General Manager, 	for the
California Faculty Association; 	William Haughton, 	Attorney, 	for
the California 	State 	University.
Before Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair practice 	charge was 	filed by 	the 	California
Faculty Association 	(hereafter CFA 	or Charging 	Party) 	against 	the
California 	State University 	(hereafter CSU or Respondent) 	on
June 22, 	1988. 	The General Counsel of the Public Employment
Relations 	Board 	(hereafter PERB or Board) 	issued a 	complaint 	on
September 29, 	1988. 	The complaint, 	as amended on February 	14,
1989, 	alleged that the Respondent, 	while negotiating with the
Charging Party about parking rates: 	(1) 	engaged 	in an overall
pattern of 	conduct which evidenced bad faith; 	(2) 	unilaterally,
during negotiations, 	changed the rate 	for long-term parking; 	and
(3) 	unilaterally, 	during impasse, 	changed the rate for so-called
"daily use" 	parking. 	It is alleged that Respondent, 	by this
. . .. .
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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conduct, violated Government Code, section 3 571(b), (c) and (e).1
Respondent answered the complaint on October 	19, 	1988, 	and
February 21, 	1989, 	denying that it violated the Act. 	The
settlement 	conference on November 	10, 	1988 	did not resolve the
dispute.
A 	formal 	hearing was 	conducted 	by 	the 	undersigned 	in 	Los
Angeles, 	California on February 28 and March 	1, 	1989. 	Charging
party's 	motion to 	reopen the 	record was 	denied by written order
on April 	27, 	1989. 	The last post-hearing brief was 	received on
June 8, 	1989.
FINDINGS 	OF 	FACT
I. 	THE NEGOTIATIONS:
CFA 	is 	an employee 	organization within the meaning of
section 3562(g), 	and the exclusive representative of a unit of
faculty employees 	(Unit 	3) 	within the meaning of 	section 3562(j).
CSU 	is 	an employer within the meaning of 	section 3562(h).
1
1The 	Higher 	Education Employer-Employee 	Relations 	Act 	(HEERA
or Act) 	is 	codified at Government Code 	section 3560 	et 	seq., 	and
is 	administered by the Board. 	Unless 	otherwise 	indicated, 	all
statutory references 	are to the Government Code. 	Sections
3571(b), 	(c) 	and 	(e) 	state that it shall be unlawful for the
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.
(e) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth in Article 	9
(commencing with Section 3590).
22

In May 	1987, 	Jacob Samit, 	assistant vice chancellor for
employee relations, 	informed Ed Purcell, 	CFA's general manager,
that 	current parking 	fees 	might be 	increased as 	a 	result of 	a CSU
study. 	Samit had been 	informed by CSU's 	auxiliary and business
services 	division that 	the 	study 	indicated a 	need 	to 	raise
parking 	fees 	to 	finance 	new construction 	in the parking program
over the 	next 	several years. 	Purcell 	immediately asked to
negotiate any proposed 	increase, 	and 	cautioned Samit 	to 	not
"initiate 	any process 	involving the 	issuance of 	revenue bonds 	to
fund 	construction costs 	if 	said bonds 	are 	in any way predicated
on parking 	fee 	revenues 	derived 	from 	faculty."
In June 	1987, 	a task force formally 	submitted to the CSU
Trustees 	the 	"Report on Parking Fees 	in the California 	State
University." 	The report proposed a 	five year capital 	outlay 	to
improve parking at 	CSU's 	nineteen campuses.
The parties 	communicated 	on an 	informal 	basis 	during 	the
summer. 	In August 	1987, 	Samit and Paul Worthman, 	CFA associate
general manager, 	held several meetings 	to discuss 	a number of
issues 	then under negotiations. 	Although the parking 	fee 	issue
was 	discussed 	along with 	other 	subjects 	during the 	early August
meetings, 	on August 21, 	1987, 	it became the sole topic of
discussion. 	As 	of that date, 	no formal written proposals had
been exchanged. 	However, 	as 	he would do throughout the
negotiations, 	Samit took the position that members 	of Unit 	3
should pay the 	same parking 	fees 	as 	all 	other users, 	including
students, 	members of other bargaining units, 	staff, 	etc.
3
3

On August 22, 	1987, 	Worthman presented Samit with a
comprehensive 	request 	for 	information to 	enable 	CFA to 	evaluate
the CSU position and formulate a proposal. 	The request 	sought:
(1) 	sources of parking revenue; 	(2) 	general expenditures;
(3) budget information; 	(4) 	auditor's reports; 	(5) 	costs and
expenditures for current operations; 	(6) 	number of vehicles upon
which future estimates 	are based; 	(7) 	total parking permits 	and
faculty parking permits 	sold by campus; 	and 	(8) 	all other
information used by the 	task force 	to 	arrive at 	the proposed
increase.
Frank Gerry, 	CSU employee relations 	administrator, 	responded
to Worthman's 	request on September 4, 	1987, 	providing much of the
information requested. 	Gerry 	also 	informed Worthman that 	CSU
does 	not 	collect 	specific 	information on campus permit 	sales.
The parking revenue, 	Gerry wrote, 	is 	estimated based on overall
permit 	sales, 	daily fees, 	metered rates and fees 	for special
events.
In September 	1987, 	the CSU Trustees 	adopted a resolution
increasing monthly fees, 	effective September 	1988. 	CSU was 	to
develop 	and 	implement a 	complete 	fee 	schedule 	based 	on 	the
proposed 	monthly 	rate. 	The 	resolution 	stated 	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." 	As 	more 	fully discussed
below, 	that part of 	the resolution recognizing the obligation to
4

negotiate with 	exclusive 	representatives 	about parking 	fee
increases 	was 	communicated 	to 	campus 	presidents 	repeatedly
throughout the 	latter part of 	1987 	and 	1988.
The 	September 	1988 	increase 	for nonrepresented 	employees 	was
the 	same as 	the 	increase proposed 	for Unit 	3 	employees 	by Samit
throughout 	the 	negotiations.2 CSU never moved 	from this
position.
At a meeting 	in November 	1987, 	Worthman requested more
information to 	evaluate 	the proposed 	increase. 	The 	request
sought detailed 	information regarding 	income per 	space, 	budgeted
versus 	actual 	costs, 	and the 	financial models used to develop the
proposed fee increases. 	By letter dated December 	16, 	1987,
Worthman 	informed 	Samit 	that 	he had 	received the 	information and
was 	in the process 	of developing a proposal 	to be 	"sunshined" 	on
or after February 9, 	1988.3
Samit testified that the parties met 	in January 	1988, 	but
the 	record contains 	no details 	about that meeting.
By February 	11, 	1988, 	the parties had begun a debate,
unrelated to the 	substantive 	issue on the table, 	about whether
CSU had 	a 	legal 	obligation to 	"sunshine" 	CFA proposals 	under 	the
12The proposed increase in monthly rates was from $7.00 to
$12.00 	on most campuses, 	and 	from $7.00 	to a range of 	$15.00 	to
$18.00 	on a minority of 	campuses.
3The 	information received by Worthman was 	referred 	to 	at 	the
hearing as 	"Assumption 40." 	It 	is 	a computer print out 	showing
detailed 	estimates 	concerning 	revenue 	and 	expenditures 	associated
with 	the proposed 	fee 	increase 	and 	actual 	funding of 	the 	new
parking 	structures. 	Apparently, 	there had been thirty-nine prior
"assumptions."
.' .
55

Act's public 	notice requirements. 	It was 	CFA's 	position that all
parking 	fee proposals were 	subject to public 	notice requirements,
and 	that 	true 	bargaining 	should not 	begin until 	after 	that
process 	had been completed. 	Samit believed that 	since the
current 	collective 	bargaining 	agreement 	covered parking 	fees,
public 	notice compliance was unnecessary. 	In Samit's view, 	the
parking 	fees 	clause 	had been 	sunshined when the 	contract was
first negotiated, 	making further public 	notice 	"redundant."
On February 22, 	1988, 	CSU posted its 	initial proposal 	at the
chancellor's 	office for 48 hours. 	The CFA proposal, 	presented to
CSU a few days 	later on February 26, 	1988, 	was also posted at the
chancellor's 	office. 	Samit 	testified these postings were 	only to
satisfy CFA. 	He did not believe CSU had an obligation to do 	so.
CFA was 	never 	informed of the postings 	and no meetings were held
for public 	comment.
Also on February 22, 	1988, 	Worthman asked for more
information.4 He 	sought any 	"request 	for proposal 	and 	all 	bids
and proposals 	for parking 	construction of 	surface 	and 	structure
parking 	at 	all 	campuses 	submitted to CSU." 	This 	two-part
request sought: 	(1) 	CSU's requests for proposals; 	and 	(2) 	bids
and proposals 	for 	construction actually 	submitted 	to 	CSU.
Worthman also 	asked 	to 	"examine 	the drawings 	and designs 	and 	cost
4For example, 	the 	information Worthman had received
indicated CSU proposed to 	spend 	$44,328,000 	in 	1988-89 	to
construct 	8,898 	new parking 	spaces. 	Worthman sought 	to discover
the basis 	for these 	overall projections 	and the 	estimate per
space.
66

estimates 	in possession of 	the CSU 	for the proposed 	construction
of parking facilities."
The purpose of 	this 	request was 	to ascertain the basis 	for
CSU projections 	concerning 	the proposed parking program.
Worthman testified 	that 	CSU 	negotiators 	told CFA negotiators 	that
higher parking 	fees 	for 	faculty members 	were needed 	to pay the
actual construction costs, 	as well 	as the interest on the bonds
to be 	sold to 	finance the 	construction. 	Worthman explained 	it 	as
follows.
Q. 	And why was 	it 	important 	for the Union to
seek 	information of 	that 	sort?
A. 	. . . 	what 	they were 	coming to us 	and
saying was, 	we had to pay substantially
higher fees, 	in some cases, 	over 	100 percent
higher fees. 	We had to pay it, 	they said,
because 	they needed 	the money 	to build 	this
parking program, 	this 	specific parking
program.
As we 	entered 	into bargaining, 	it 	seemed to
me 	that 	if 	it wasn't really going to 	cost
that much, 	and if the 	same program could be
built 	for fewer dollars, 	and if that 	could be
demonstrated, 	and if we could demonstrate 	it
to them, 	then in bargaining, 	we could show
them they didn't need all 	that money, 	or as
much of our money, 	to build the parking
construction that 	they wished 	to build.5
5Worthman questioned the 	accuracy of 	"Assumption 	40." 	He
testified that 	the 	two major 	sources 	CSU used to 	fund 	its 	parking
system were bond 	sales 	and 	income 	from fees; 	minor 	sources 	of
funding were 	interest and reserves. 	Worthman calculated, 	based
on 	"Assumption 40," 	that CSU was proposing to pay approximately
10.75 	percent 	interest return on the bonds 	it 	intended to 	sell 	to
finance 	the project. 	Worthman's 	independent research 	indicated
that 	comparable 	bonds 	at 	that 	time were yielding approximately
7.8 percent. 	CSU had 	sold bonds 	in 	1984 	to 	finance a parking
project. 	The prevailing rate at that time was 	10.75 percent. 	It
was 	Worthman's 	view that 	CSU had 	simply 	adopted 	the 	old 	rate 	for
bonds 	to be 	issued to 	finance 	the 	current project without
. .. "
77

recognizing 	that 	rates 	had dropped.
CFA renewed 	its 	request 	several 	times 	during the 	course 	of
negotiations, 	but 	never received 	the 	information Worthman
requested on February 22, 	1988.
Samit 	and Gerry testified 	the 	information did 	not 	exist.
However, 	the testimony of John Hillyard, 	assistant vice
chancellor 	for auxiliary and business 	services, 	is 	in certain
respects 	at odds with that 	given by 	Samit 	and Gerry. 	The
February 	15, 	1989 	issue of the Daily Collegian, 	a newspaper on
the Fresno 	campus, 	attributed the 	following 	statement to
Hillyard: 	"parking construction plans, 	while beyond the
designing 	stage, 	are being halted pending an outcome to 	the
impasse." 	Asked at the hearing if this 	statement was 	accurate,
Hillyard first said 	"yes, 	in fact 	. 	. 	. 	right now we have delayed
on the 	construction of 	certain major projects 	until we 	are
assured of the revenue that we have." 	However, 	when asked
specifically 	about 	the 	accuracy of 	the 	statement 	that 	CSU was
"well 	beyond 	the 	designing 	stage," 	Hillyard 	clarified this
testimony and went on to describe 	the 	status 	of 	the parking
projects. 	Specifically, 	he testified that he did not know what
the 	Daily Collegian meant when 	it 	stated that 	construction plans
were beyond the designing stage. 	He made 	it clear that he did
not want 	that 	statement 	attributed to him. 	Purcell 	then asked
him to 	explain 	"exactly what 	stage you're 	at 	in terms 	of 	the
approved parking construction program." 	In response, 	Hillyard
8

said projects 	approved by the Trustees 	have an 	"action year." 	In
September 	such projects 	may be approved to begin the 	"design"
phase, 	but the decision to proceed 	is 	made 	later at the 	campus
level, 	according to Hillyard. 	In the construction of parking
structures, 	Hillyard 	said, 	CSU uses 	a 	"request for proposal kind
of process," 	during which a 	"request for proposal" 	is 	"developed
and then put 	on the 	street, 	and the bidders 	bid both on the
design and construction." 	The procedure 	for surface 	lots 	is 	a
little different. 	An architect 	is 	employed and there 	is 	a
separate design phase.
Hillyard was 	shown a 	copy of the 	Report on Parking Fees 	in
the 	California 	State 	University 	(Hillyard was 	the 	chairperson of
the task force which prepared the report), 	and asked if any of
the parking projects 	approved by the 	Trustees 	in the 	report were
in a 	"design" 	stage or a 	"request for proposal" 	stage. 	Hillyard
said 	"definitely requests 	for proposals 	have 	gone 	forward 	on
some, 	and I would assume that design has, 	but again, 	my staff 	is
more 	familiar with that." 	He also testified that 	"I 	do know
requests 	for proposals have been prepared" 	on projects 	targeted
by 	the 	task 	force 	for 	1988-89. 	Hillyard 	later 	testified CSU
"might have" 	projects 	in the design phase at another division in
the 	chancellor's 	office.
At the February 26, 	1988 meeting, 	written proposals were
exchanged 	for the 	first 	time. 	CFA presented a 	comprehensive
proposal covering the following areas: 	(1) 	parking fees;
(2) 	availability of parking; 	(3) 	alternate transportation;
99

(4) 	payment of fees; 	and 	(5) 	maintenance of parking facilities.
Purcell presented a point-by-point 	explanation of 	the proposal.
In response, 	CSU presented the 	following proposal.
Any 	employee 	desiring 	to park at 	any CSU
facility 	shall 	be 	required to pay 	a parking
fee. 	The amount of 	the parking fee 	shall be
determined by 	the 	Board 	of 	Trustees 	of 	The
California 	State 	University.
There was 	little discussion of 	this 	proposal on February 	26,
1988. 	However, 	during the course of negotiations 	Samit explained
CSU's 	rationale 	that 	new parking 	spaces were 	needed 	on the
various 	campuses 	and the 	increase 	in rates was 	necessary 	to
finance 	the 	new construction.
Purcell testified that, 	prior to 	impasse, 	CSU did not
provide 	a 	complete response to the CFA proposal 	of 	February 	26,
1988. 	In rebuttal, 	Samit testified that he responded to 	each
point 	in the CFA proposal during the meetings 	of February 	26, 	and
April 	6, 	1988, 	as well as during a 	series of informal discussions
he 	had with 	Purcell 	during 	this 	general 	time period.
Based on Purcell's 	and Samit's 	testimony, 	it 	is 	concluded
that CSU did 	not 	formally present 	a 	response to 	every 	aspect 	of
the CFA proposal during either the February 26, 	or April 	8, 	1988
negotiating 	sessions. 	CSU responded to only certain parts 	of 	the
CFA proposal 	during 	either or both of 	these meetings. 	However,
Samit 	responded to 	the remainder of 	the proposal 	in 	informal
discussions with Purcell during this 	approximate time 	frame.
Samit 	convincingly 	testified he made 	it 	clear that 	the 	CFA
10

proposal was 	considered, 	but 	in the 	end 	found by CSU to be
unacceptable 	and 	an 	agreement 	unlikely.6
The 	following point-by-point 	response 	described 	by 	Samit 	in
his 	testimony 	is 	consistent with this 	view. 	CFA had proposed a
four-year 	cap on fees 	for 	long-term parking permits. 	This was
rejected by 	Samit because 	it would provide 	no 	financing 	for 	new
construction. 	CFA's 	proposed 	cap on 	fees 	for 	short-term or
daily-use parking 	(more 	fully discussed below) 	was 	declared
nonnegotiable 	because 	such 	facilities were 	open to 	the 	general
public, 	as well as to faculty members.7
In 	the 	category 	"availability of parking," 	CFA proposed 	that
CSU provide, 	upon request, 	reserved parking for all bargaining
unit members 	at the rate of $18.00 per month. 	Samit responded
that there were not 	enough facilities 	to provide this. 	When
informed by CFA that 	it already existed on some 	campuses, 	Samit
said he would 	investigate 	it and respond. 	Samit 	gave 	the 	same
response 	to 	a 	CFA proposal 	requiring a 	reasonable 	relationship
between 	the 	number 	of parking permits 	issued and the 	number 	of
available 	spaces. 	CFA's 	goal here was 	to 	ensure that a 	faculty
. 4:
6Samit 	also 	testified 	that 	alternate 	approaches 	to 	raising
parking 	revenue were 	explored during 	the 	series 	of 	meetings 	prior
to the key February 2 6 and April 	8, 	1988 negotiating 	sessions.
Regarding fees 	for the period July 	1, 	1987 to June 	30,
1991, 	CFA proposed 	faculty permits 	"shall 	not 	exceed 	$33.75 	per
semester, 	$22.50 per quarter, 	or $7.50 per month." 	For the 	same
period, 	CFA proposed the 	"fee 	charged at parking meters 	shall 	not
exceed 	$.35 	per hour," 	and 	"parking 	fees 	for 	coin-operated
parking 	gates 	or daily permits 	shall 	not 	exceed $1.25 	per
session."
11

member who purchased a permit would, 	in fact, 	have a place to
park.
In the 	area of 	"alternate 	transportation," 	CFA proposed that
CSU 	subsidize 	(at no less 	than 50 percent) 	the cost of mass
transit 	or 	commuter 	transit 	for those 	faculty members 	who 	used
such means 	of 	transportation instead of a personal 	automobile.
CFA proposed using 	funds 	from 	fines 	and 	forfeitures 	(parking
tickets) 	to 	finance this proposal. 	To this 	Samit responded that
he would have 	to 	check with his principals. 	He also 	said that he
was 	in the process 	of 	collecting 	information for a 	legislative
hearing 	related 	to 	alternative 	transportation 	and would provide
any information collected to CFA. 	He did 	so on May 	10, 	1988.
In the 	"payment of 	fees" 	proposal, 	CFA asked CSU to deduct,
upon request, 	the monthly cost of parking permits 	from the pre-
tax 	income 	of 	faculty members. 	After discussing the matter with
a 	consultant, 	Samit responded that it was 	illegal to 	shelter
employee parking 	fees.
Another area of discussion at the February 26, 	1988 	meeting
concerned the 	"alternative 	fee 	structure" 	suggested by CFA. 	If
adopted, 	this would have 	changed 	the mix between bond 	sales 	and
parking 	fee receipts. 	In other words, 	more bonds would be 	sold
and 	less 	money collected 	in the form of 	fees. 	Assumption 40,
among other things, 	indicated that CSU 	intended to 	sell
$53,575,000 in bonds 	over the next 	five years. 	Hillyard
responded that 	offering more bonds would have 	a 	negative 	impact
on both 	the ability to 	sell 	the bonds 	and the 	interest rate.
12

Hillyard told 	Purcell 	he 	had been advised on this 	matter by
Paine-Webber and 	a 	San Francisco 	law firm.
Hillyard's response prompted Purcell, 	on March 	1, 	1988, 	to
request 	"access 	to 	any 	correspondence between Paine-Webber and
CSU concerning proposed bond 	sales, 	interest rate projections 	and
dollar amount 	to be 	sold 	in light 	of 	the 	'market.'" 	The purpose
of the request, 	Purcell 	informed Samit, 	was to help CFA
"understand 	the 	relationship 	of 	the 	capital which CSU 	seeks 	to
raise 	to 	the parking 	fee 	increase 	it 	seeks 	to 	levy."8 Purcell
also 	requested 	access 	to 	documents 	which 	indicated 	the 	status 	of
the bonds.
On March 7, 	1988, 	Samit 	informed Worthman in writing that
CFA's February 22, 	1988 request for proposals, 	bids and designs
was 	"rather 	far removed" 	from the 	scope of 	negotiations.
Nevertheless, 	Samit wrote, 	such documents are a matter of public
record 	and 	"whatever plans 	we might have" 	may be 	examined by
contacting 	Hillyard's 	office.
The 	discussion during the 	negotiating 	session on April 	8,
1988 was 	mainly about the CFA proposal. 	At the beginning of 	the
meeting 	Samit 	seemed perplexed when 	Purcell 	asked him 	for 	a
response to CFA's February 26, 	1988 proposal. 	However, 	after
receiving a 	copy of 	the proposal 	from Gerry, 	Samit began his
response. 	When the discussion turned to 	requests 	for 	information
8The March 	1, 	1988 request also sought access to
correspondence 	between CSU 	and 	the 	San Francisco 	law 	firm.
Unfair practice 	allegations 	concerning this 	request 	have 	been
dropped 	by 	CFA.
13

related 	to 	alternate modes 	of 	transportation and 	average 	student
enrollment by campus 	(discussed above), 	Samit asked for a caucus.
After a 	thirty-minute 	caucus, 	Samit 	said he was 	in the process 	of
collecting 	information related 	to 	the CFA proposal 	for 	a
legislative hearing. 	Samit 	suggested that the meeting be
adjourned 	so 	that 	the 	information 	could be 	gathered 	and 	shared
with CFA later. 	Samit's 	suggestion was 	accepted by CFA.
On May 	10, 	1988, 	Samit responded in writing to certain CFA
requests 	for information made earlier 	in the negotiations. 	He
enclosed 	the 	report 	to Assemblyman Campbell 	concerning 	alternate
modes 	of 	transportation, 	and charts 	depicting average 	student
enrollment by 	campus. 	Responding to the 	earlier request 	for
proposals, 	bids 	and designs, 	Samit provided Purcell with a 	list
of 	current 	construction projects 	and 	again directed Purcell 	to
Hillyard's 	office 	for more 	specific 	information about 	the 	status
of 	each project. 	Purcell 	assigned this 	task to Robin Jacques.
Upon contacting Hillyard's 	office, 	Jacques was 	told by Glenn
Mitchell, 	an employee in the office, 	that the records did not
exist.
Investigating the 	same request, 	Gerry too was 	told by
Mitchell 	the 	information did not 	exist. 	Consistent with
Hillyard's 	testimony, 	Mitchell 	also 	told Gerry that CSU proceeded
on a 	"sequential basis;" 	that is, 	although CSU may decide to
build a 	facility 	in 	1993, 	it may not be until 	1990 	that the
project 	is 	actually 	initiated. 	Mitchell 	also told Gerry that he
was 	"not 	sure," 	but 	"did 	not think anything had gone 	forward."
.. . . . 2 0
14

Purcell 	and 	Samit 	engaged 	in 	informal 	discussions 	after 	the
April 	8, 	1988 meeting, 	but at 	some unknown point Samit reached
the decision that 	the parties were 	at 	impasse 	and agreement was
not possible. 	On June 	3, 	1988, 	CSU declared impasse. 	On
June 	30, 	1988, 	the PERB Regional Director determined that an
impasse 	existed.9
II. 	IMPASSE:
CFA's 	complaints 	about 	CSU's 	conduct during 	impasse 	fall
into two categories: 	(1) 	unilateral changes in parking rates;
and 	(2) 	failure to provide 	information.
A. 	Unilateral 	changes
There 	are 	two types 	of parking 	facilities 	on CSU campuses.
The 	first 	grants 	access 	through 	the purchase of 	long-term permits
which vary in duration; 	e.g., 	month, 	semester or year. 	Only
faculty members who 	visit 	campus 	several 	days 	per week typically
use this 	type of 	facility.
The 	second type of 	facility is 	controlled by coin-operated .
parking meters, 	coin-operated parking gates, 	or daily parking
permits 	(hereafter referred to as 	"daily-use" parking). 	Although
anyone 	(e.g., 	students, 	visitors, 	etc.) 	can use the daily-use
facilities, 	they are 	typically used by 	students 	and part-time
faculty members who visit 	campus 	only a 	few days per week. 	Of
the 	approximately 	20,000 employees 	in Unit 	3, 	approximately 	7,000
9CFA disputed the declaration of 	impasse, 	but 	the 	Board's
Regional 	Director 	concluded that an 	impasse 	existed. 	On appeal,
the 	Board upheld the 	Regional 	Director, 	but 	took no position on
the 	issues presented by the 	instant unfair practice 	charge.
California State University 	(1988) 	PERB Order No. 	Ad-177-H.
15

are part-timers. 	Worthman's 	investigation 	showed that
approximately 	30 per cent of Unit 	3, 	primarily the part-timers,
use 	"daily-use" parking. 	In fact, 	as of January 	1989, 	13,787
long-term permits 	had been 	sold 	for 	school 	year 	1988-89. 	The
close 	relationship 	between the 	number of 	long-term permits 	sold
and the 	number of 	full-time 	faculty members 	in Unit 	3 	supports
Worthman's 	testimony; 	that is, 	the 	full-time faculty members 	tend
to 	use 	the 	long-term 	facilities 	while 	the part-time 	faculty
members 	typically use the daily-use 	facilities. 	In addition, 	the
testimony of Timothy Sampson, 	professor at 	San Francisco State,
indicates 	that 	even 	full-time 	faculty 	occasionally use 	the 	daily-
use 	facilities.
On or about September 1, 	1988, 	during impasse, 	CSU
unilaterally 	increased the daily-use parking rates. 	There 	is 	no
dispute 	that 	this 	change 	occurred.10
There 	is 	a dispute as 	to whether the cost of 	long-term
permits was 	increased. 	The 	September 	1987 	resolution expressly
directed 	campus presidents 	to 	not 	change parking rates 	for
employees 	under 	exclusive 	representation pending 	the 	outcome 	of
negotiations. 	Also, 	on May 6, 	1988 and again on July 20, 	1988,
D. 	Dale Hanner, 	CSU vice chancellor for business affairs, 	sent
memoranda 	to 	the 	nineteen campus 	presidents 	directing 	them to 	not
increase parking permit 	fees 	for employees 	represented by CFA
10In 	1984, 	daily-use rates were 	set at $0.75 	to $1.00 per
entry and $0.15 to $0.2 5 per hour. 	Effective September 	1, 	1988,
these 	rates 	were 	increased to 	a range 	of 	$1.50 	to 	$2.00 per 	entry
and a range of $0.2 5 to $1.00 per hour.
16

until 	bargaining obligations 	under 	the Act had been 	satisfied.
Hanner also 	informed the 	campus 	presidents 	that 	fees 	for
"students, 	management employees and all other bargaining units"
should be 	increased 	in accordance with the Trustees' 	September
1987 	resolution. 	During this 	time 	Samit 	attended monthly
meetings 	of 	the 	CSU Executive 	Council 	(comprised of 	the 	nineteen
campus 	presidents 	and vice 	chancellors 	and the 	chancellor) 	and 	at
each 	meeting 	advised 	the 	Council 	that parking 	fees 	for CFA-
represented 	employees 	could 	not be 	changed until 	the 	completion
of 	negotiations. 	Accordingly, 	CSU contends no changes 	occurred.
CFA 	called 	three witnesses 	to 	testify about 	the 	change.
Paul Schmidt, 	a professor at the Long Beach campus, 	testified
that 	in 	early April 	1988 	he 	saw a CSU flyer announcing 	increased
rates 	for 	1988-89 parking permits. 	Schmidt promptly bought 	a
yearly permit at the 	increased rate. 	The 	flyer 	in question 	is
drafted as 	a general announcement, 	and is primarily concerned
with 	securing parking permits 	by mail. 	Its 	caption reads:
"1988-89 	Parking Permit by Mail 	Information." 	It makes 	no
reference 	to parking rates 	for 	employees 	subject to 	collective
bargaining.
...
Robert Carlson, 	a professor at the San Diego campus,
testified that on February 	2, 	1988 	he attended a meeting with the
dean, 	assistant deans 	and associate deans 	in his department. 	He
said 	the dean announced 	a 	retroactive 	increase 	in parking 	rates,
and 	gave 	the 	"impression" 	that 	the 	increase was 	"fairly
imminent." 	On cross-examination, 	however, 	Carlson admitted that
17

there had been no 	increase 	in 	long-term parking 	fees 	on the 	San
Diego campus.
Also called to testify was Marilyn Friedman, 	a professor at
the Los Angeles campus. 	On July 8, 	1988, 	she bought a yearly
permit at the increased rate. 	In September, 	1988, 	she learned
through 	a CFA publication that 	she had been overcharged. 	She
immediately went to 	the 	cashier's 	office 	and was 	granted a
refund.
B. 	Denial of 	information during 	impasse.
On June 27, 	1988, 	Samit responded in writing to Purcell's
March 	1, 	1988 	request for information. 	Samit attributed the
delay to 	an 	"oversight," 	and claimed that he was 	under the
impression that 	Hillyard 	had 	already 	answered 	some 	of 	the
questions posed by CFA in the 	earlier request. 	Responding to 	the
substance of the request, 	Samit 	informed Purcell 	that there was
no 	correspondence 	between CSU 	and 	Paine-Webber 	concerning bond
sales. 	Gerry, 	who played an active role 	in the negotiations 	as
the person charged with responding to CFA's 	requests, 	had 	learned
from 	Hillyard's 	office 	(and 	apparently 	relayed 	the 	information 	to
Samit) 	that 	the only contact between CSU 	and Paine-Webber was
verbal. 	CSU did not attempt to provide the Paine-Webber
information in an alternate written form. 	However, 	Hillyard had
already told CFA of 	the 	advice 	received 	from Paine-Webber.
Gerry testified that 	he was 	also 	informed by Mitchell 	that
CSU had not 	undertaken 	efforts 	to move 	forward with 	the 	sale 	of
bonds 	concerning this 	particular parking program. 	This 	is
18

consistent with 	Hillyard's 	testimony 	that 	he 	and his 	staff 	talked
with Paine-Webber representatives 	about 	the bond 	issue, 	but 	did
not 	exchange written correspondence. 	Hillyard also testified
that 	it 	is 	the normal practice of CSU to transact 	its bond
business 	by telephone.
On September 20, 	1988, 	during mediation, 	Purcell sent a
letter to 	Samit 	seeking more 	information. 	The 	letter asked 	Samit
if 	CSU had 	initiated or 	completed the 	sale of bonds 	to 	fund 	the
capital 	outlay 	for the proposed parking program, 	and 	sought 	an
accurate description of 	current 	construction plans. 	The 	request
for 	"bid proposals" 	was 	renewed. 	Purcell 	also asked 	for the
number of 	faculty permits per campus 	(semester, 	quarter or
annual) 	sold to date in academic year 	1988-89, 	or, 	alternatively,
the 	number of permits 	sold by campus 	at the 	rate 	of 	$7.50 per
month, 	$33.75 per 	semester or $22.50 per quarter. 	Since these
rates were 	still 	in effect 	for Unit 	3, 	this 	information would
have 	told 	CFA how much money was 	currently being 	collected 	in
parking 	fees 	paid by 	faculty members.
CFA had 	first 	sought 	this 	information as part of 	the
comprehensive request presented to CSU on August 	22, 	1987. 	CSU
earlier estimated 	in Assumption 	40 that 	it 	needed 	a 	certain
amount 	of 	fee-generated money to drive 	the 	construction program.
Purcell 	testified that 	it was 	"quite 	likely," 	at 	least 	in CFA's
view, 	that CSU was 	already collecting more than it needed.
Purcell 	thought the September 	1, 	1988 	increase 	for 	300,000
students was 	enough to 	fund the new parking projects. 	He
19

testified: 	". 	. 	. i f CSU was collecting more money than it
anticipated, 	I 	thought that would have been a powerful 	argument
as 	to why the 	faculty that we 	represent 	in Unit 	3 	should not have
to pay a 	fee 	increase."
On September 23, 	1988, 	Samit responded to Purcell in writing
that there had been no 	sale of bonds, 	nor had CSU accepted bid
proposals 	on the parking program. 	Samit 	again 	informed 	Purcell
that 	CSU does 	not 	collect parking 	revenue 	data differentiated by
bargaining unit or fee 	sources. 	Rather, 	all 	fee revenue whether
generated by students, 	staff, 	faculty or administrators 	is merely
reported as 	revenue. 	According to Samit, 	CSU 	simply could not
provide the 	information either by unit, 	amount of 	fee, 	or
duration of permit.
On October 3, 	1988, 	Samit 	sent Purcell the total number of
faculty permits 	sold at 	sixteen of 	the nineteen campuses. 	This
information 	could 	not be 	readily 	gathered 	at 	the 	remaining 	three
campuses 	(Fresno, 	Pomona and San Jose). 	Those campuses were
directed to 	supply the 	information as 	soon as possible. 	After
consulting Mitchell 	again, 	Gerry 	learned the 	construction was 	on
hold. 	Accordingly, 	he informed Purcell 	that there were no
construction plans or 	"bids" 	to examine.
On November 	14, 	1988, 	CFA representative Steve McDonald
requested more 	information from Samit. 	The requests 	for the
number 	of 	permits 	sold and 	the 	1988-89 	parking revenue were
renewed, 	as was 	the request 	for copies of 	correspondence between
CSU 	and 	Paine-Webber.
20

Gerry responded to McDonald 	in writing on December 	19, 	1988.
He 	first 	said the data 	showing the number of parking permits 	sold
was 	not yet available 	for the Fresno, 	Pomona and San Jose
campuses. 	The request for the 	1988-89 revenue data, 	according to
Gerry, 	was 	"premature," 	since 	such reports 	are not 	compiled until
the 	end 	of 	the 	fiscal year. 	Purcell 	disagreed with this
response. 	He 	testified that 	"common sense told us 	that 	the
University had 	to maintain 	some 	type 	of 	accounting process 	to
maintain records 	for 	its 	cash receipts." 	Also, 	CFA research had
uncovered a 	1985 prospectus 	for the 	sale of parking revenue bonds
which detailed how CSU 	collects 	and 	accounts 	(on a 	monthly basis)
for revenue 	from the 	sale of parking permits.
In the December 	19, 	1988 	response, 	Gerry also informed CFA
that 	there 	"has 	been no 	further correspondence" 	between CSU and
Paine-Webber. 	After receiving Gerry's 	response, 	CFA amended the
complaint 	to 	allege denial 	of 	information during the 	impasse
procedures.
On January 	9, 	1989, 	Purcell vigorously complained in writing
to 	Samit 	that CSU was 	dragging 	its 	feet with respect 	to
information requests. 	Purcell 	took the position that CFA could
not 	intelligently participate 	in 	the 	upcoming 	factfinding 	hearing
without 	the requested 	information. 	To 	clarify the 	outstanding
requests, 	Purcell 	again listed the 	information 	sought and CFA's
supporting 	rationale.
Specifically, 	Purcell 	again asked 	for the 	number of 	faculty
permits 	sold 	in 	1988-89 	at the Fresno, 	San Jose and Pomona
21

campuses. 	He 	again 	sought the 	number of parking permits 	sold by
campus and by category 	(semester, 	quarter, 	or annual), 	as well as
the 	1988-89 parking revenue.11 CSU, 	during earlier bargaining,
had 	provided 	CFA with detailed 	information 	covering 	the 	financial
operation of 	the CSU parking 	system for the 	1986-87 	fiscal 	year.
More current information, 	covering the 	1987-88 	fiscal year, 	had
become available, 	and Purcell requested 	it. 	CSU had also
provided 	CFA with 	information 	related 	to 	the 	"Parking 	Revenue
Fund Balance" 	at the beginning of recent 	fiscal years. 	Purcell
now sought the most 	recent 	figures.
In a January 	12, 	1989 	letter, 	Gerry responded to CFA's
comprehensive request. 	First, 	he provided the number of 	faculty
parking permits 	sold at the San Jose, 	Fresno and Pomona 	campuses.
Gerry 	explained 	further that 	since 	CSU does 	not differentiate 	the
sale of parking permits 	by bargaining unit, 	it was 	necessary 	for
each campus 	to manually count the 	number of permits 	sold to
members of Unit 	3. 	Second, 	he 	informed Purcell that 	since CSU
does 	not differentiate between categories 	or types 	of permits
sold, 	that information was not available. 	On a related point,
11In suggesting an alternative 	approach 	to 	gathering
information about 	the 	categories 	of permits 	sold 	and the 	revenue
therefrom, 	Purcell pointed out to Samit in the January 	9, 	1989
letter that Unit 	3 	employees 	represented the only group 	still
paying parking rates 	on the pre-September 	1988 	schedule. 	Purcell
found 	it 	"inconceivable" 	that CSU did 	not have an accounting
procedure 	to 	enable 	it to 	identify those parking payments 	at 	the
old 	rates 	and capture 	the 	dollars 	collected 	in 	each payment
category or the number of permits 	sold 	in each 	category. 	These
comments 	(as well 	as 	similar comments 	in Purcell's 	September 	20,
1988 	letter to Samit) 	seriously undercut the CFA argument that
CSU unilaterally 	increased 	long-term parking rates 	for Unit 	3
employees 	in September 	1988.
22

both 	Hillyard and Gerry 	testified 	that 	all parking revenue 	is
placed in a general account; 	therefore, 	the amount of revenue
generated by Unit 	3 was not available. 	According to Gerry, 	a
$7.50 permit purchase is 	recorded as 	a 	"general 	entry" 	under
"Permits, 	Revenue." 	Third, 	as indicated in his December 	19, 	1988
response to McDonald, 	Gerry 	stated that 	1988-89 	data 	are 	compiled
at year's 	end and will be provided at that time. 	Gerry addressed
other requests 	for information in the January 	12, 	1989 	letter.
For example, 	the 	1987-88 parking audit and the 	fund balance 	for
the previous 	two years, 	requested for the 	first time on January
9, 	1989, were provided.
According to CFA, 	the 	complete 	number of 	faculty parking
permits 	sold per campus was provided on January 27, 	1989. 	CSU
also provided the 	1988-89 	revenue data on the 	same date, 	shortly
before the 	factfinding hearing. 	Purcell 	said CFA 	"had to
scramble 	like the dickens 	to try and 	incorporate 	it 	into 	[its]
factfinding presentation." 	This placed a 	"severe handicap" 	on - W :
CFA, 	according to Purcell, 	because a major part of the CFA case
was 	aimed at proving CSU did not 	need as 	much money as
anticipated.
ISSUES
1. 	Whether CSU, 	during the parking negotiations 	from
February 22, 	1988 through June 	15, 	1988, 	denied CFA information
or otherwise breached 	its 	obligation to 	negotiate 	in good 	faith,
in violation of 	section 3571(c) 	and 	(b)?
23

2. 	Whether CSU, 	in April 	1988, 	unilaterally implemented a
rate . 	increase 	for long-term parking permits, 	in violation of
section 3571(c) 	and 	(b)?
3. 	Whether CSU, 	on or about September 1, 	1988, 	unilaterally
implemented a rate 	increase 	for 	"daily-use" 	parking, 	in violation
of 	section 3571(e) 	and 	(b)?
4. 	Whether CSU, 	during the impasse procedures, 	denied CFA
information or 	otherwise 	breached 	its 	obligation to 	participate
in the impasse procedures 	in good faith, 	in violation of 	section
3571(e) 	and 	(b)?
DISCUSSION
I. 	The Unilateral Changes
CFA contends 	that parking 	is 	a 	negotiable 	subject under the
Act. 	When CSU, 	during negotiations, 	unilaterally increased the
cost 	of 	long-term permits 	it violated 	the 	obligation to 	negotiate
in good faith. 	In addition, 	CFA argues, 	when CSU unilaterally
increased the daily-use 	rates 	during 	impasse 	it breached 	its
obligation to participate 	in good 	faith 	in the Act's 	impasse
procedures. 	CSU, 	on the other hand, 	concedes that the cost of
parking 	is 	generally a negotiable 	subject under the Act.
However, 	CSU contends 	that the evidence does not 	support a
finding that 	it has 	increased the 	cost of 	long-term parking. 	As
for the change in daily-use rates, 	CSU argues that it has no
obligation to 	negotiate with 	an 	exclusive 	representative 	about
the decision to 	increase parking rates 	at 	facilities 	used by
staff, 	students, 	or the public at large.
24

An 	employer violates 	its 	duty to 	negotiate 	in good 	faith
A.when	.:.,when 	it unilaterally 	implements 	a 	new policy or 	changes 	an
established policy 	affecting 	a 	negotiable 	subject without
affording 	the 	exclusive 	representative 	a 	reasonable 	opportunity
to bargain. 	Such unilateral 	changes 	are 	inherently destructive
of 	employee rights 	and are a 	failure per 	se of the duty to
negotiate 	in good 	faith. 	Grant Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196; 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51. 	These principles are
applicable to 	cases 	decided under HEERA. 	See Regents 	of 	the
University of California 	(1983) 	PERB Decision No. 	356-H.
A. 	Long-Term Parking
The 	general 	subject of parking costs 	is 	negotiable under the
Act. 	Regent
-----------------·s of the University of California, 	supra
--·. 	PERB
Decision No. 	356-H. 	In this 	case, 	CSU was obligated to negotiate
with CFA 	in accordance with Articles 	32.18 	and 	3.1 	of 	the
parties' 	contract. 	See fn. 	13, p. 	33, infra.
The 	complaint 	alleges 	that CSU unilaterally 	increased 	long-
term parking rates during negotiations. 	However, 	the 	charging
party has 	failed to present 	evidence that 	this 	change actually
occurred.
Carlson, 	the professor from San Diego, 	admitted that no
change had occurred at his 	campus. 	Friedman, 	the professor 	from
Los Angeles, 	testified that she bought a yearly permit at the
increased rate, 	but upon learning that 	she had been overcharged
requested and received a refund. 	Schmidt, 	the professor from
25

Long Beach, 	was 	the only witness 	to testify that he purchased a
yearly permit at the 	increased rate. 	However, 	the testimony 	from
a 	single 	employee 	out of 	a 	20,000-member bargaining unit 	is 	scant
evidence upon which to base 	a 	conclusion that 	a 	change 	occurred
in 	long-term parking 	rates 	which had 	a 	"generalized 	affect 	or
continuing 	impact 	upon the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit 	employees." 	Grant 	Joint 	Union High 	School
District, 	supra. PERB Decision No. 	196, p. 	10. 	Moreover, when
evaluated against the weight of 	evidence 	in the record, 	Schmidt's
testimony becomes 	even 	less 	convincing.
Throughout 	the 	negotiations 	CSU 	took 	steps 	to preserve 	the
status 	quo 	concerning long-term parking rates 	for Unit 	3
employees. 	The 	September 	1987 	resolution expressly provided 	that
there be no 	change 	in such rates 	until 	the completion of
negotiations. 	This directive was 	repeated at 	least twice during
1988, 	in May and July, 	in memoranda 	from Hanna to the nineteen
campus presidents. -Samit too delivered the 	same message to the
CSU 	executive 	council 	almost on a monthly basis 	during 	1988.
In addition, 	Purcell's letters of September 20, 	1988, 	and
January 9, 	1989, 	admit that Unit 3 members were still under the
"pre-1988" 	long-term parking rates 	as of those dates. 	These
letters 	are 	fatal 	to the CFA argument.
The 	fact remains 	that 	Schmidt bought 	a permit 	at the
increased rate 	in response 	to 	a 	flyer 	circulated on the 	Long
Beach campus. 	However, 	the 	flyer was 	not directed primarily at
Unit 	3 	employees. 	The flyer was drafted as a general
26

announcement aimed at a broader audience, 	and was primarily
concerned with the purchase of permits by mail. 	It appears 	that
Schmidt 	misread the 	flyer 	to 	apply to him as 	a member of 	Unit 	3
and purchased a permit. 	Although 	Schmidt never 	sought 	a refund,
it 	is 	reasonable to 	infer 	from the 	testimony of 	Friedman that he
would have received one had he asked. 	In fact, 	CSU concedes 	in
its 	brief 	that 	Schmidt was 	"over-charged" 	and would have been
entitled to a refund. 	Thus, 	it appears 	that charging Schmidt the
increased rate was 	a mistake. 	A single 	administrative 	error
which an 	employer 	stands 	ready to 	correct 	is 	not a 	refusal 	to
negotiate 	in good 	faith. 	Moreno Valley Unified 	School 	District
(1982) PERB Decision No. 	206, p. 	11.
B. 	Daily Use Parking
There is no dispute that CSU, 	during impasse, 	unilaterally
increased the rates 	at daily-use parking 	facilities. 	CSU 	takes
the position that this 	change 	is 	outside the 	scope of
representation 	since Unit 	3 	employees 	are permitted to use 	these
facilities on the 	same basis 	as 	are members of the public, 	other
employees and 	students. 	To the extent Unit 	3 	employees use this
type of parking facility, 	CSU contends, 	they are merely one group
of 	consumers 	of CSU's parking 	"product."
Regents of the University of California, 	supra. 	PERB
Decision No. 	356-H does 	not 	squarely address the negotiability of
parking 	rates 	for 	employer 	facilities 	which are 	used by the
public, 	other employees and students, 	as well as by bargaining
27

unit members. 	Thus, 	this 	case presents an issue of first
impression.1Z
Since 	the general 	subject 	of parking 	is 	negotiable under
Regents. 	it 	is 	fair to conclude that the cost of using daily-use
parking 	facilities 	is, 	under Anaheim Union High 	School 	District
(1981) 	PERB Decision No. 	177: 	(1) 	logically and reasonably
•
related to the wages 	of 	Unit 	3 	members who use 	such 	facilities;
and 	(2) 	a term and condition of 	employment of 	such concern to
both management 	and 	faculty that 	conflict 	is 	likely 	to 	occur 	and
the mediatory 	influence 	of 	collective bargaining 	is 	the
appropriate means 	of resolving the conflict. 	See also Los
Angeles 	Police Protective League v. 	City of Los Angeles 	(1985)
166 Cal.App.3d 55 	[212 Cal.Rptr. 	251] 	(upholding a local 	employee
relations 	board decision that 	monthly parking 	rates 	are
negotiable under the Meyers-Milias Brown Act).
However, 	the decision to increase parking rates 	at 	such
facilities 	is 	in large part aimed beyond 	employees 	at the
broader 	objective 	of providing 	adequate parking 	facilities 	at 	a
large public 	university where 	State policy requires 	that 	the
parking 	system be 	financially 	self-supporting. 	Such decisions
are designed to 	raise revenue 	for 	the 	overall 	CSU parking program
12The only guidance on this point 	is 	found in Regents.
Finding parking rates 	a negotiable 	subject, 	the Board also noted
that 	it might 	look differently at 	a 	situation where 	employees
were privileged to use parking 	facilities 	on the 	same basis 	as
the public 	at 	large. 	Under such circumstances, 	the Board
suggested, 	the employer's 	argument that 	it 	should be 	free 	to
unilaterally price 	its parking product might be more persuasive.
Regents of the University of California, 	supra, 	PERB Decision No.
356-H, p. 	13, fn. 5.
28

so that 	adequate parking 	facilities 	can be made available 	to 	the
public, 	students, 	and staff, 	as well as to Unit 3 employees.
Imposing an obligation to 	negotiate 	such 	a decision would 	carry
the 	bargaining process 	beyond 	the 	bargaining unit 	and 	into 	CSU's
overall 	mission and 	its 	relationships with third parties. 	As
such, 	it would 	significantly abridge the 	employer's 	freedom to
exercise 	those managerial 	prerogatives 	essential 	to 	the 	efficient
operation of 	the 	campuses 	and thus 	the achievement of 	its
mission. 	Therefore, 	it is 	concluded that the decision to
increase 	rates 	at daily-use parking 	facilities 	is 	not within the
scope 	of 	representation under the Act.
This does not, 	however, 	relieve CSU of the obligation to
meet 	and 	confer with 	the 	exclusive 	representative 	on this
subject. 	Even when an employer is 	free to unilaterally make
decisions 	involving managerial rights, 	it nevertheless must
provide 	the 	exclusive 	representative with notice 	and 	an
opportunity 	to bargain over the 	effects 	of 	those 	decisions 	on
matters within scope. 	See 	e.g., 	Newman-Crows 	Landing Unified
School District 	(1982) 	PERB Decision No. 	223; 	Eureka City School
District 	(1985) 	PERB Decision No. 	481.
The 	decision to 	increase 	the daily-use parking rates 	clearly
impacts 	on parking 	fees paid by a 	large number of 	Unit 	3
employees, 	estimated by Worthman to be as many as 	30 per cent of
the 	bargaining unit. 	Such an 	increase 	in parking rates 	cannot
realistically be viewed as 	having no 	impact 	on Unit 	3 	employees.
It 	is 	no 	less 	negotiable than a comparable decrease 	in wages.
29

Los Angeles 	Police Protective League v. 	City of Los Angeles,
·--	supra	---·. 	166 Cal.App.3d 55, 	60-61.
The 	complaint 	here 	alleges 	that 	CSU unlawfully 	increased 	the
daily-use parking rates 	during 	impasse. 	In effects-bargaining
cases 	an employer 	satisfies 	its 	obligation to 	negotiate 	in good
faith 	if 	it provides 	an opportunity 	for negotiations 	to 	take
place during the 	time between the adoption of 	the resolution
announcing 	the 	change and 	the 	actual 	implementation of 	the
change. 	Oakland Unified School 	District 	(1985) 	PERB Decision No.
540, pp. 	16-17.
In this 	case, 	CFA had notice as 	early as 	September 	1987 when
the 	Trustees 	adopted 	a 	resolution 	increasing parking rates 	in
September 	1988. 	It was made clear that rates 	for Unit 	3 would
not be 	increased pending the outcome of negotiations. 	Thus,
there was 	ample 	opportunity during 	this 	one-year period 	to
negotiate the 	effects 	of 	the decision to 	increase 	rates 	at daily-
use 	facilities. 	It remains 	to be determined whether CSU
negotiated 	in good 	faith during 	this 	period.
In February 	1988, 	after 	several meetings 	and exchanges 	of
information, 	the parties 	finally exchanged 	initial proposals.
CFA rejected the 	uniform parking 	scale 	implicit 	in the CSU
proposal. 	CSU 	correctly declared 	non-negotiable 	the 	CFA proposal
(see fn. 	7, 	p. 	11, 	supra.) 	attempting to establish fees at daily-
- -.
use facilities. 	This proposal, 	as drafted, 	had application
beyond Unit 	3. 	It would have 	effectively undermined CSU's
managerial 	authority to 	set 	fees 	at 	such facilities. 	Other
30

aspects 	of the CFA proposal 	( 	e.g., 	reserved faculty parking,
permit-space ratio, 	alternative transportation, 	etc.) 	dealing
with 	the 	effects 	of 	the decision to 	increase rates were discussed
briefly, 	but 	agreement was 	not reached and the declaration of
impasse 	(found below to 	have 	been appropriate 	under the
circumstances) 	precluded 	further negotiations 	at the table.
Afterwards, 	the parties 	engaged in mediation and factfinding.
While the parties were 	in impasse, 	CSU 	increased the daily-use
parking 	rates 	as 	announced one year 	earlier.
In Compton Community College 	District 	(1989) 	PERB 	Decision
No. 	720, 	the Board recently established a test to determine when
an employer 	is 	free to 	implement a non-negotiable decision prior
to the 	exhaustion of the 	impasse procedures. 	Under the
circumstances presented here, 	CSU was 	free to 	implement the
decision in September 	1988. 	The decision was 	not an arbitrary
one. 	It was based on an important managerial 	interest. 	Adequate
notice was 	given, 	allowing a full year for negotiations.
Negotiations 	had occurred 	and 	the parties 	were 	at 	impasse 	at 	the
time of 	implementation. 	After the decision was 	implemented, 	the
parties 	continued 	through 	factfinding. 	Any 	further delay 	in
implementation would have 	interfered with CSU's 	right 	to 	raise
parking 	fees 	for non-bargaining unit 	employees. 	This would have
effectively undermined CSU's 	right 	to make 	the 	nonnegotiable
decision and 	thus 	its 	right 	to 	improve parking at 	the 	nineteen
campuses. 	Compton Community College District, 	supra. 	pp. 	14-15.
31

II. 	Bad Faith Bargaining
The complaint, 	as amended, 	contains 	several incidents
alleged 	to be 	evidence 	of bad 	faith or per 	se violations 	of 	the
obligation to 	negotiate 	or participate 	in the 	impasse procedure
in good 	faith. 	For purposes 	of 	evaluating CSU conduct during
negotiations 	and 	impasse, 	these allegations 	are grouped 	into 	four
categories: 	(1) 	public notice violations; 	(2) 	refusal to provide
information; 	(3) 	insisting on an inflexible position to 	impasse;
(4) 	dilatory conduct at a negotiating session.
A. 	Public 	Notice
CFA contends 	that CSU's 	refusal 	to process 	the parking
proposals 	under the 	section 	3595 public 	notice procedure 	is
evidence 	of 	bad 	faith 	conduct which delayed the 	negotiations.
CSU 	first 	argues 	that there 	is 	no obligation to 	sunshine
proposals 	which 	are 	clearly 	reflected 	in the 	existing 	contract.
Alternatively, 	CSU contends that its February 22, 	1988 posting
satisfied 	any public 	notice 	requirements.
It 	is well 	established that public 	notice 	complaints 	shall
not be 	adjudicated 	in the 	context 	of unfair practice proceedings.
A 	separate procedure 	for resolving public 	notice 	complaints 	has
been established 	for precisely this purpose. 	CFA has 	filed 	no
public notice complaint. 	Therefore, 	the undersigned has no
authority 	in this 	proceeding to render a decision that CSU
violated the Act's public 	notice requirements. 	Los Angeles
Community College District 	(1981) 	PERB Decision No. 	167.
However, 	compliance with public 	notice requirements 	is 	a 	factor
32

which may be 	considered 	in 	evaluating 	employer 	conduct 	during
negotiations. 	Oakland Unified School District 	(1983) 	PERB
Decision No. 	326, p. 40.
Parking rates were 	covered by the 	existing agreement, 	as 	CSU
points 	out, 	and the 	general 	topic 	had been 	subjected to public
notice 	requirements 	when the 	contract was 	initially negotiated.
However, 	the 	existing contract provides 	for new negotiations,
upon request by CFA, 	in the 	event CSU 	seeks 	to 	change the
existing 	fees.13	13 	The 	contract 	language 	contemplates 	new
proposals, 	renewed negotiations, 	and new parking rates.
Accordingly, 	the 	"initial" 	proposals presented by the parties 	on
February 22 and 28, 	1988, 	were in reality 	"reopeners." 	This
placed on CSU 	the 	obligation to 	comply with the public 	notice
13Section 	32.18 	of the contract 	states:
An Employee 	is 	required 	to pay 	the parking
fee 	as 	determined by the CSU 	for parking at
any 	facility of the CSU. 	The CSU 	shall
provide 	for payroll deductions 	for this
purpose 	upon written 	authorization by 	the
employee. 	The CSU 	shall not 	change the
parking 	fees payable 	in 	effect 	fall 	term
1985, 	without 	first 	complying with provision
3.1 	of 	the Agreement. 	Meeting and conferring
over the 	impact of 	such a 	charge 	shall be
about the portion of the rate increase, 	if
any, 	the 	faculty unit employees will pay.
The 	relevant part of 	Section 	3.1 	states:
Employer 	shall 	provide 	notification to CFA at
least the thirty 	(30) 	days prior to the
implementation 	of 	systemwide 	changes
affecting 	the working conditions 	of 	faculty
unit employees. 	Upon request of CFA, 	the CSU
shall 	meet and 	confer with CFA on the
demonstrable 	impact of 	such 	changes.
33

requirements 	in the Act. 	Los Angeles 	Community College District
(1981) 	PERB Decision No. 	158.14
However, 	there 	is 	no need to determine 	if CSU complied with
the 	section 	3595 	requirements. 	Even accepting CFA's 	argument
that CSU 	failed to meet these requirements, 	this does 	not 	lead to
the 	conclusion that CSU's 	conduct 	slowed down or otherwise
interfered with 	the actual 	negotiations. 	It must be 	remembered
that 	the 	focus here 	is 	on the 	employer's 	negotiating conduct. 	It
is 	not a public 	notice 	inquiry. 	CSU did not use the public
notice requirements 	as 	an obstacle to negotiations. 	To the
contrary, 	Samit took the position that there was 	no need to
sunshine proposals. 	CSU 	stood ready to proceed with
negotiations. 	While CFA might very well 	have prevailed had 	it
filed a public 	notice complaint, 	CSU's 	conduct with respect to
14The many cases 	cited by CSU to the 	contrary are not 	on
point. 	Antioch Unified School District 	(1986) 	PERB Decision No.
581 	involved proposals which were 	"identical" 	to proposals which
had already been sunshined; 	thus, 	the 	employer was 	not required
to duplicate 	its public 	notice efforts. 	In Los Angeles 	Community
College District 	(1984) 	PERB Decision No. 	454 an employee
organization was 	given a 	salary 	increase pursuant 	to
discretionary 	authority 	the 	employer 	already possessed 	under 	the
existing contract. 	Unlike the present case, 	there were no
"initial" 	proposals 	and no 	negotiations. 	Sacramento City Unified
School District 	(1982) 	PERB Decision No. 	205 involved
"counterproposals," 	not 	"initial" 	proposals." 	Palo Alto Unified
School District 	(1981) 	PERB decision No. 	184 dealt with the
specificity of proposals presented 	for public 	notice, 	an issue
not present 	in this 	case. 	Los Angeles 	Unified School 	District
(1980) 	PERB Order No. 	Ad-104 	addressed negotiable matters which
"remained open" 	under the existing contract. 	Thus, 	it was 	clear
that negotiations would continue.. 	Unlike the present case, 	there
were 	no 	new proposals 	or 	initial proposals.
34

public 	notice 	requirements 	had 	no 	significant 	impact 	on the
negotiations.
B. 	Requests 	For Information
An 	exclusive 	representative 	is 	entitled to 	all 	information
necessary and relevant to 	the discharge 	of 	its 	duty to 	represent
bargaining unit 	employees. 	An employer's 	refusal 	to provide 	such
information 	evidences 	bad 	faith unless 	it 	demonstrates 	adequate
reasons 	why 	it 	cannot provide 	the 	information. 	Stockton Unified
School District 	(1980) 	PERB Decision No. 	143. 	Requests 	for
information which 	involve 	negotiable 	terms 	and 	conditions 	of
employment 	are presumptively relevant. 	Modesto City 	Schools 	and
High School District 	(1985) 	PERB Decision No. 	479. 	Absent a
valid defense, 	refusal to 	furnish necessary and relevant
information 	is 	in 	itself 	an unfair practice 	and 	may 	also 	support
an 	independent 	finding of 	surface bargaining. 	Trustees 	of 	the
California State University 	(1987) 	PERB Decision No. 	613-H.
1. 	Requests 	for Proposals, 	Proposals 	and Bids155	1
CFA 	contends 	that 	it 	repeatedly asked 	for the 	requests 	for
proposals 	and any proposals 	or designs 	received by CSU, 	but CSU
refused to 	comply. 	CSU 	concedes 	that 	it received the 	requests,
but 	claims 	the 	information did not 	exist. 	CSU also argues 	that
15Refusal 	to provide 	this 	information was 	not 	specifically
alleged 	in the complaint. 	However, 	it 	is 	intimately related to
the 	subject of the 	complaint, 	it arises 	from the 	same 	course of
conduct, 	and 	it was 	fully litigated at hearing. 	Since both
parties 	briefed the issue, 	it 	is 	determined that adequate notice
was provided. 	Therefore, 	it is 	considered here as 	an unalleged
violation. 	Tahoe-Truckee Unified School District 	(1988) 	PERB
Decision No. 	668.
35

such documents 	are public 	records which, 	if they exist, 	may be
examined upon request. 	CSU does 	not 	contend the 	information 	is
unnecessary 	or 	irrelevant.
As 	vice 	chancellor responsible 	for 	the 	entire CSU parking
system and the 	chairperson of 	the CSU parking task 	force, 	John
Hillyard was 	the 	only witness 	in a position to have 	any direct
knowledge of these documents. 	Regarding the proposals 	and
designs, 	Hillyard testified that he did not 	know what 	the Daily
Collegian meant when 	it 	reported 	that 	CSU was 	"beyond 	the
designing 	stage," 	and he did 	not want 	that 	statement 	attributed
to him. 	While Hillyard 	"assumed" 	design had gone 	forward on 	some
projects, 	and CSU 	"might have" 	projects 	in the design phase at
another division in the chancellor's 	office, 	he was 	careful 	to
state 	that his 	staff would be 	better prepared 	to 	answer 	such
questions. 	When considered with Gerry's 	and Jacques' 	testimony
that Mitchell 	said the documents 	did not 	exist, 	Hillyard's
testimony 	cannot 	fairly be 	read 	to 	establish their 	existence.
Therefore, 	it is concluded that there is 	insufficient
evidence 	in the record to prove 	actual proposals 	or designs
existed 	in Hillyard's 	office 	or elsewhere. 	CSU cannot be 	faulted
for 	not producing these documents. 	The 	Bendix 	Corporation 	(1979)
242 NLRB 62 	[101 LRRM 1118].
Hillyard's 	testimony 	regarding the 	existence 	of 	the
"requests 	for proposals" 	was more certain. 	He testified that
requests 	for proposals 	for parking 	construction projects 	targeted
by the task force for 1988-89 had 	"definitely 	. 	. 	. 	gone
36

forward." 	He 	said his 	staff 	is 	more 	familiar with the 	status 	of
the projects, 	"but I 	do know requests 	for proposals have been
prepared on 	some of 	them." 	Hillyard's 	testimony 	is 	at 	odds with
the CSU position that the 	information did not 	exist. 	Testimony
that Mitchell 	said the requests 	for proposals 	did not 	exist 	is
hearsay 	and 	therefore 	not 	sufficient 	to outweigh Hillyard's 	clear
testimony to 	the contrary on this point. 	PERB Regulation 	32176.
According to Hillyard, 	the 	information was 	"definitely" 	available
at 	some 	location and presumably within the 	control 	of 	CSU
representatives. 	Yet no CSU representative 	took the 	necessary
steps 	to 	satisfy 	its 	obligation to 	track 	it down and provide
copies to CFA. 	See Safeway Stores. 	Inc. 	(1980) 	252 NLRB 682
[105 LRRM 1448] .
Worthman testified that 	the 	"request 	for proposals" 	would
have 	helped CFA understand 	the basis 	for CSU projections 	about
the 	cost of projects 	Unit 	3 	members were being asked to 	subsidize
through 	increased parking rates. 	Without passing on the merits
of Worthman's 	reasoning, 	the request for this 	information was 	at
least presumptively relevant. 	CSU has 	not disputed the 	necessity
or the relevance of this 	information. 	Aside from a 	single, 	off-
hand comment by Samit in his 	letter to Worthman on March 	7, 	1988,
that 	this particular 	information was 	"rather 	far removed" 	from
the 	scope of 	negotiations, 	CSU during this 	entire proceeding has
raised no 	arguments 	to challenge 	the 	legitimacy of 	the request.
Therefore, 	it 	is 	concluded that CSU breached 	its 	obligation
to 	negotiate 	in good 	faith when 	it 	failed 	to provide 	CFA with
37

copies 	of 	the 	"request 	for proposals" 	related to parking
projects. 	This 	conduct violated section 3571(c).
2. 	Parking Revenue Data
CFA contends 	that despite 	its 	repeated 	requests 	for parking
revenue 	information, 	CSU did not respond 	in a timely fashion. 	By
the time the 	information was provided, 	according to CFA, 	the
delay was 	such that 	it hampered CFA 	in 	its 	factfinding
presentation. 	Therefore, 	CFA concludes, 	CSU has unlawfully
failed 	to provide 	necessary 	and 	relevant 	information 	to 	the
exclusive representative 	in a timely manner. 	CSU, 	on the other
hand, 	claims 	that 	it provided the 	information to CFA. 	Any delay
was 	due 	to the burdensome nature of the request. 	CSU does 	not
contend 	that 	the 	information requested 	is 	irrelevant 	or
unnecessary.
As 	CFA points 	out 	in its 	brief, 	McDonald requested parking
revenue data for fiscal year 	1988-89 on October 20, 	1988, 	and
again on November 	14, 	1988. 	Despite the fact that the parties
were at 	that 	time preparing 	for the 	factfinding hearing, 	it took
Gerry more 	than a month 	to 	respond. 	When he responded on
December 	19, 	1988, 	Gerry said the request was 	"premature," 	since
such 	information 	is 	not 	ordinarily 	compiled until 	the 	end 	of 	the
fiscal year. 	Gerry repeated this 	in a January 	12, 	1989, 	letter
to Purcell. 	This assertion proved to be untrue, 	for CSU
eventually provided the 	information on January 27, 	1989. 	From
this 	evidence, 	it may reasonably be 	inferred that the 	information
38

was 	available 	and 	could 	have 	been 	compiled 	in approximately 	two
weeks, 	instead of three months.
The 	delay 	in providing 	the 	1988-89 	parking revenue was
unreasonable. 	It placed CFA at 	a disadvantage 	in preparing 	for
the 	crucial 	factfinding hearing which was 	to begin a 	short 	time
later. 	A major part of the CFA case, 	it will be recalled, 	was
that CSU didn't 	need 	to 	generate 	as 	much money 	from parking
revenue as 	it 	claimed. 	As 	Purcell pointed out, 	CFA had to
"scramble 	like the dickens" 	to 	incorporate this 	information into
its presentation.
The 	same reasons 	that 	require 	reasonable diligence 	in
scheduling 	meetings 	require 	reasonable 	diligence 	in 	furnishing
information essential to productive bargaining. 	Otherwise, 	the
likelihood of 	significant progress 	toward 	agreement 	is 	hampered.
See Local 	12. 	International Union of Engineers 	(1978) 	237 NLRB
1556 	[99 LRRM 	1196], 	and cases cited therein. 	These principles
apply with equal 	force to 	the 	factfinding process. 	CSU has
failed 	to 	exercise 	reasonable 	diligence 	regarding 	the 	1988-89
parking revenue 	information, 	and there 	is 	no CSU contention that
the 	information was 	irrelevant or unnecessary. 	This 	conduct
violates 	the 	obligation to participate 	in the 	impasse procedures
in good faith in violation of 	section 3571(e).
CFA 	also 	contends 	in 	its 	brief 	that CSU delayed 	in providing
the 	1987-88 	revenue. 	Neither the 	amended 	charge 	nor the amended
complaint 	cover the 	request 	for 	1987-88 	parking revenue. 	The 	two
pre-factfinding 	requests 	for 	information 	relied 	upon here 	by 	CFA
39

contain no 	reference 	to the 	1987-88 parking revenue.
Specifically, 	the October 20, 	1988 request is 	"referenced" 	in
Gerry's December 	19, 	1988 	letter to McDonald, 	but there is no
specific 	mention of 	the 	1987-88 	revenue request. 	Similarly,
McDonald's November 	14, 	1988, 	letter to Samit covers only the
1988-89 parking revenue. 	There 	is 	no mention of the 	1987-88
parking 	revenue request. 	The 	1986-87 	revenue was 	requested 	on
August 22, 	1987, 	in what CFA describes as a 	"generic" 	request and
provided on September 4, 	1987. 	However, 	there is 	sparse evidence
in the record showing what, 	if anything, 	happened between
September 	1987 	and January 	1989, 	when the 	1987-88 	revenue was
provided. 	Therefore, 	it is 	not appropriate to reach this 	issue
here.16 See 	San Ramon Valley Unified School 	District 	(1982) 	PERB
Decision No. 	230, p. 	9-10.
16Even if this 	issue were reached here, 	CFA's 	main argument
that 	the delay 	in receiving the 	1987-88 	revenue placed 	it 	at 	a
disadvantage 	in presenting 	its 	case 	to 	the 	factfinder would 	be
rejected. 	Unlike the year-to-date 	1988-89 	revenue which was
received a 	"couple of days" 	before the factfinding hearing, 	the
1987-88 revenue was received on January 	12, 	1989, 	several weeks
before 	the 	factfinding hearing. 	This 	gave CFA adequate 	time 	to
incorporate 	the 	1987-88 	revenue 	information into 	its
presentation.
40

3. 	Parking Permits 	Sold in Unit 	317
In an attempt 	to determine the amount of parking revenue
generated by Unit 	3 	members, 	CFA requested 	information concerning
the number and duration of permits 	sold to Unit 	3 	employees 	on
each campus. 	CFA argues 	that 	the delay 	in providing the 	number
of 	faculty permits 	sold 	and 	the 	refusal 	to provide 	the 	duration
or type of permits 	sold, 	and thus 	the parking revenue generated
by Unit 	3 	employees, 	indicates bad faith bargaining.
CSU 	contends 	that 	any delay 	in providing the 	number 	of
permits 	sold was 	due 	to the time-consuming nature 	of 	the 	request.
Since 	such records are not normally kept, 	it was 	necessary 	for
each campus 	to manually count the 	number of 	faculty permits 	sold.
CSU further 	claims 	it does 	not record the duration or type 	of
permits 	sold, 	and all parking proceeds 	go 	into a general 	account.
According to CSU, 	this made 	it 	impossible to identify the amount
of 	revenue generated by Unit 	3 	based on existing records. 	CSU
does 	not 	argue 	that 	the 	requested 	information was 	unnecessary or
irrelevant.
In response to CFA's August 27, 	1987 request, 	Gerry wrote
Purcell 	that 	the CSU 	simply did not keep 	such records. 	CFA did
not 	challenge Gerry's 	assertion at that time. 	The record does
17This 	request 	for 	information was 	not 	expressly 	included 	in
the complaint. 	However, 	it 	is 	intimately related to the 	subject
of the complaint, 	it arises 	from the 	same course of conduct, 	and
the matter was 	fully litigated at hearing. 	Since both parties
briefed the 	issue, 	it 	is determined that adequate notice was
given: 	Therefore	. .. 	, 	it is 	considered here as an unalleged
violation. 	Tahoe-Truckee Unified School District, 	supra, 	PERB
Decision No. 	668.
41

not 	show the matter was 	raised again until 	the 	request was
renewed until over a year later, 	on September 20, 	1988, 	when the
parties were 	in mediation. 	Thus, 	in evaluating the CFA argument
that 	the 	information was 	provided 	late, 	the 	starting point must
be September 20, 	1988.
On September 23, 	1988, 	Samit again responded that CSU does
not 	collect parking revenue data 	differentiated by 	fee 	source.
However, 	CSU took a more 	conciliatory position 	(from that
initially 	stated by Gerry 	in his 	September 	4, 	1987 	letter)
regarding the 	number of 	faculty permits 	sold on each 	campus. 	In
response to CFA's 	request, 	CSU took the necessary 	steps 	to gather
the information. 	On October 3, 	1988, 	Samit 	sent Purcell the
number of 	faculty permits 	sold on 	sixteen of 	the 	nineteen
campuses. 	The 	number of 	faculty permits 	sold on the 	remaining
three campuses 	(Fresno, 	Pomona and San Jose) 	was not then
available, 	but these 	campuses 	gathered the 	information and 	it was
made available on January 27, 	1989. 	Consistent with Samit's
letter of September 23, 	1988, 	the response did not include the
amount of parking revenue 	collected 	from Unit 	3, 	nor did 	it
include 	the 	categories 	of permits 	sold to 	faculty by duration or
amount.
Manually 	counting thousands 	of 	faculty permits 	sold 	in 	a
bargaining unit 	spread over 	nineteen campuses 	can be 	time-
consuming. 	CSU accomplished this 	for 	sixteen of 	the nineteen
campuses 	in the two-week period between September 20, 	1988, 	and
October 	3, 	1988. 	The information was 	then given to CFA. 	This 	is
42

not an unreasonable 	amount 	of 	response time 	for a 	request 	of 	this
sort. 	CFA had the 	faculty permit 	sales 	figures 	for the
overwhelming majority of the campuses by October 	3, 	1988, 	well 	in
advance of 	the 	factfinding hearing. 	It 	is 	true that the number
of permits 	sold 	on the 	remaining three 	campuses was 	provided only
a 	few days 	before 	the 	factfinding hearing, 	but 	the delay was
because 	it 	took more time 	to 	collect 	the 	information at 	these
three campuses. 	In addition, 	the nature and amount of
information 	involved here 	(number 	of 	faculty permits 	sold 	on
three campuses) 	is 	such that 	it could have been made a part of
the 	CFA presentation with 	reasonable 	efforts 	during 	the 	few days
prior to the hearing. 	Therefore, 	it 	is 	concluded that CFA was
not disadvantaged as 	a result of the delay experienced here. 	CSU
did not 	act 	unlawfully 	in the manner 	it 	responded to 	the CFA
request 	for number of 	faculty permits 	sold on each 	campus.
The 	second part of 	this 	request 	involves 	the 	categories 	or
duration of 	parking permits 	sold to 	faculty and 	the 	revenue
generated therefrom. 	Purcell 	argued in his 	January 	9, 	1989
letter to Samit that 	it was 	"inconceivable" 	CSU did not 	employ
accounting procedures 	to 	identify 	categories 	of parking permits
sold. 	As 	Purcell 	also pointed out 	in his January 	9, 	1989 	letter,
Unit 	3 	members were the 	only 	employees who were 	not 	affected by
the 	September 	1988 	change 	in 	long-term parking 	increases.
Therefore, 	simply 	identifying the 	number of permits 	sold per
campus 	at 	the 	old rates 	would have produced 	the 	information
sought. 	And 	since 	the number of 	faculty permits 	sold per 	campus
43

had 	already been compiled manually, 	the 	information 	concerning
the permit 	categories 	and the 	revenue 	generated 	therefrom 	could
have 	also been tabulated 	from 	the 	same documents 	at 	that 	time,
thus 	producing the 	information sought.
CSU's 	argument 	that this 	could not be done based on
existing records 	is not convincing. 	It was 	established through
Gerry's 	testimony, 	for example, 	that a $7.50 permit purchase 	is
recorded as 	a 	"general entry" 	under 	"Permits, 	Revenue." 	There
was 	no 	further 	explanation of 	Gerry's 	testimony or CSU 	accounting
procedures. 	However, 	no matter how Gerry's 	testimony is
interpreted, 	it casts doubt on the CSU position. 	If Gerry's
testimony 	is 	read to mean that each entry 	(or purchase) 	is
separately recorded, 	every 	such 	entry at 	the pre-September 	1988
prices would have 	revealed 	a 	faculty permit purchased 	at 	a
particular rate. 	On the other hand, 	if Gerry's testimony is 	read
to mean that every 	"general entry" 	in the 	"Permits, 	Revenue"
category 	is 	so buried in that 	account 	that 	it 	could not 	later be
identified, 	it 	is 	inconceivable that CSU could have 	compiled the
figures 	showing the 	total number of 	faculty permits 	sold by
campus. 	The 	transaction for every 	faculty permit would have 	been
forever lost in the general account. 	Thus, 	even if 	formal
accounting procedures did not 	exist, 	it appears 	that the
information 	could have been 	gathered 	from 	existing 	records 	with
the 	same 	effort used to determine the total 	number of 	faculty
permits 	sold.
44

Based on the foregoing, 	it is concluded that CSU, 	with
reasonable 	efforts, 	could have provided CFA with the 	types 	or
duration of 	faculty permits 	sold and 	the 	revenue 	generated
therefrom. 	By failing to do 	so, 	it breached its 	obligation to
participate 	in good 	faith 	in the 	impasse procedure 	in violation
of section 3571(e).
4. 	Correspondence with Paine-Webber
At the February 26, 	1988 negotiating session, 	Hillyard
revealed 	Paine-Webber's 	advice 	that 	offering more 	bonds 	would
have 	a negative 	impact on the 	ability to 	sell 	the bonds 	and on
the 	interest rate. 	This prompted CFA to request CSU/Paine-Webber
correspondence. 	CFA disputes 	CSU's 	contention that 	all 	CSU
communications 	with 	Paine-Webber were 	verbal 	and 	therefore 	no
correspondence 	exists. 	CSU does 	not 	claim the Paine-Webber
correspondence 	is 	unnecessary 	or 	irrelevant 	information.
As 	the person responsible 	for bond 	sales 	to 	finance 	the
parking construction, 	Hillyard testified that 	it 	is 	common
practice 	for CSU to 	conduct 	its 	bond business by telephone. 	He
and his 	staff 	talked to 	Paine-Webber representatives 	on a 	regular
basis, 	but they exchanged no written correspondence on this
particular bond 	sale. 	This 	is 	corroborated by Gerry's
investigation which 	yielded 	no 	CSU/Paine-Webber 	correspondence.
Therefore, 	it 	is 	concluded that there was 	no 	information which
could 	have 	been provided.
CFA understandably questions 	CSU's 	assertion that 	no 	such
information exists. 	It does 	seem likely that advice 	from Paine-
45

Webber on 	such 	a 	large 	bond transaction would 	have 	been reduced
to written form. 	However, 	there is no basis on this record to
discredit Hillyard's 	testimony, 	or the corroborating results 	of
Gerry's 	investigation. 	Nor does 	the record otherwise permit 	the
inference that 	this particular correspondence 	exists. 	CSU 	cannot
be 	faulted 	for 	failing to provide 	correspondence which has 	not
been shown to exist. 	See The Bendix Corporation, 	supra. 	242 NLRB
62.
C. 	Insisting on an 	Inflexible 	Position to 	Impasse.
CFA argues 	that CSU's 	unwavering 	insistence 	that 	Unit 	3
members 	must pay the 	same parking 	fees 	as 	employees 	in other
bargaining units, 	students 	and nonrepresented employees 	is
evidence which points 	to bad 	faith bargaining. 	CSU does 	not
dispute 	that 	its 	negotiators 	took this position throughout 	the
negotiations. 	However, 	CSU argues, 	the rationale for its uniform
schedule proposal was 	explained to 	CFA at 	the 	table 	and 	refusal
to yield on a 	single 	issue 	is 	not an indication of bad 	faith.
Nothing 	in the Act requires parties 	to 	reach agreement 	or
make 	concessions 	on every proposal. 	Adamant 	insistence on a
bargaining position is 	not necessarily a refusal 	to bargain 	in
good 	faith. 	The obligation to negotiate 	in good 	faith does 	not
require 	yielding positions 	fairly maintained. 	Oakland Unified
School District 	(1981) 	PERB Decision No. 	178, p. 	7-8, 	and cases
cited therein; 	Oakland Unified School 	District 	(1982) 	PERB
Decision No. 	275. 	Similarly, 	failure to make a counterproposal,
standing alone, 	is not a failure to negotiate in good faith.
46

However, 	evidence of the 	failure to make a counterproposal may be
weighed with all 	other 	circumstances 	in considering good 	faith.
Oakland Unified School District, 	supra f 	PERB Decision No. 	275 and
cases 	cited 	therein. 	Applying these general principles 	to the
totality of circumstances 	in this 	case, 	it 	is 	concluded that
CSU's 	insistence 	on the uniform parking 	fee 	schedule was 	not 	a
position taken 	in bad 	faith.
In Regents 	of the University of California, 	supra, 	PERB
Decision No. 	356-H, 	p. 	21, 	the university opposed a status quo
remedy, 	arguing that uniform parking fees 	is 	so crucial 	it would
not have 	agreed to 	any other proposal. 	The Board viewed this
position as 	"perilously close" 	to an outright 	admission of bad
faith bargaining. 	CFA argues 	that CSU's 	insistence 	on the 	same
position here 	is 	bad 	faith bargaining.
Adherence to 	this position very well might come perilously
close to an admission of bad faith bargaining. 	However, 	CSU's
conduct 	in 	steadfastly maintaining 	its 	position on the uniform
parking 	schedule, 	when viewed in the overall 	context of 	the
parking negotiations, 	is 	more 	like hard bargaining than bad 	faith
bargaining.
It 	cannot be 	overlooked that 	there was 	only one 	subject 	on
the table. 	This did not allow for the amount of give-and-take
characteristic 	of 	initial or even reopener negotiations. 	It was
in this 	context that CFA presented a proposal. 	CSU responded at
the 	table and 	in informal discussions 	between Samit 	and Purcell.
While 	insisting on a uniform parking 	schedule, 	CSU presented a
47

rationale to 	support 	its 	position. 	Without passing on the merits
of the CSU position, 	it was 	not unsupported by rational
arguments. 	CSU wanted uniformity 	in is parking program, and 	it
needed 	revenue 	to 	finance proposed 	construction of 	needed parking
facilities. 	Such conduct does 	not establish bad faith. 	See
Oakland Unified School District, 	supra. 	PERB Decision No. 	178,
p. 	8-9.
There 	may have 	been 	secondary 	issues 	raised by 	the 	CFA
proposal which could have been ironed out by the parties, 	but 	it
is 	clear 	that 	the parties 	were hopelessly deadlocked 	on the
primary 	issue of 	the uniform parking 	schedule. 	Under these
circumstances, 	it was not a 	sign of bad faith for CSU to 	stick to
its position and declare 	impasse. 	The Board has 	observed that
"impasse 	may 	exist when the parties 	are 	deadlocked 	on one 	or
several major issues, 	even if the parties 	continue to meet and
even if 	concessions 	on minor issues 	are possible." 	Regents 	of
the University of California 	(1985) 	PERB Decision No. 	520-H,
P- 	17.
It 	is 	also alleged 	in the 	complaint 	that the declaration of
impasse 	in lieu of holding more meetings 	after the April 	8, 	1988
meeting 	suggests 	bad 	faith. 	CFA accuses 	CSU of 	"escaping 	into
impasse." 	This argument too is rejected.
As 	an 	integral part of 	the collective bargaining process,
the 	statutory 	impasse procedures 	contemplate 	a 	continuation of
negotiations, 	not an 	"escape" 	from negotiations. 	Mediation and
factfinding are designed to advance the parties' 	efforts 	to reach
48

agreement. 	When the parties 	are deadlocked, 	as they were here,
there 	can be 	no 	adverse 	inference drawn 	from the declaration of
impasse. 	See Regents of the University of California, 	supra,
PERB Decision No. 	520-H, pp. 	23-25.
As 	noted above, 	by April 	1988 	the parties were deadlocked
over the 	issue of uniform parking rates. 	There was 	little hope
of 	an agreement without third-party assistance. 	Even though
there was only one 	subject on the table, 	the parties, 	during the
course of 	several months, 	had considered each other's proposals,
met on 	several occasions, 	and communicated in writing and
verbally. 	Although CFA was denied 	some 	information, 	it 	is worth
noting that 	a great deal 	of 	information was provided by CSU.
Nonetheless, 	the parties 	reached a point 	in their negotiations
where 	continued discussion would have been 	"futile." 	See Mt. 	San
Antonio Community College District 	(1981) 	PERB Order No. 	Ad-124.
Based on the 	foregoing, 	no adverse 	inference 	can be drawn
from the CSU declaration of 	impasse.
D. 	The April 8, 1988 	Meeting
The 	complaint 	charges 	CSU with 	"attending a negotiating 	•
session on or about April 	8, 	1988, 	unprepared to discuss 	the
issues 	and prematurely adjourning 	the meeting." 	CFA 	argues 	this
indicates bad 	faith. 	CSU disagrees.
Samit's 	surprise at Purcell's 	request 	for a 	response 	to 	the
CFA proposal 	indicates 	he 	initially did 	not 	intend 	to 	address 	the
proposal. 	However, 	he began a point-by-point response when asked
to do 	so. 	While CFA may not have been satisfied with the 	content
49

of the response, 	Samit's willingness 	and ability to respond to
the 	proposal 	does 	not 	indicate 	lack of preparation or bad 	faith.
When the 	discussion turned 	to 	requests 	for 	information
related 	to 	alternate 	modes 	of 	transportation and average 	student
enrollment by campus, 	Samit called for a caucus. 	Afterwards,
Samit 	said he was 	in the process 	of 	collecting 	information,
related to the CFA proposals, 	for a 	legislative meeting. 	He
suggested the bargaining 	session be 	adjourned 	so 	that 	the
information could be 	gathered 	and 	shared with 	CFA, 	presumably 	at
a 	later bargaining 	session. 	This was 	the basis 	on which the
meeting was 	adjourned. 	It appears 	the parties were 	in
substantial 	agreement at 	this point 	in the meeting that this was
a 	sensible way to proceed. 	Thus, 	CSU's 	conduct while at the
April 8, 	1988 meeting does not indicate bad faith. 	What 	is
really at 	issue here 	is 	the declaration of 	impasse 	on the heels
of 	a meeting which 	the parties 	left with 	the understanding that
there would be 	further talks.
The information was provided on May 	10, 	1988. 	While the
information was 	being digested, 	CSU 	surprised CFA by declaring
impasse. 	There were 	a 	few informal 	conversations 	between Purcell
and Samit, 	and at 	some point CSU decided that 	further face-to-
face talks would be 	futile. 	As 	already concluded, 	this decision
was 	reasonable under the 	circumstances 	and thus 	no 	inference 	of
bad 	faith 	should attach to 	it. 	While CFA may have preferred more
negotiating 	sessions, 	in reality the parties were at 	impasse.
50

CONCLUSION
Pre-impasse 	Allegations
I 	have 	found that CSU, 	prior to the declaration of 	impasse
in June 	1988, 	did not: 	(1) 	unilaterally change long-term parking
rates; 	(2) 	unlawfully refuse or fail to provide the Paine-Webber
correspondence or the proposals or designs; 	(3) 	delay in
providing the number of 	faculty permits 	sold; 	(4) 	unlawfully
insist on an inflexible position during bargaining; 	or 	(5)
unlawfully declare impasse. 	Also, 	no 	inference of bad faith 	is
drawn from the CSU conduct at the April 	8, 	1988 meeting or its
position on public 	notice.
It has 	also been found that CSU refused to provide 	the
"requests 	for proposals." 	This 	conduct breached the 	obligation
to negotiate in good faith, 	in violation of section 3571(c). 	The
same 	conduct 	interfered with CFA's 	statutory right 	as 	exclusive
representative to negotiate on behalf of Unit 	3 	employees, 	in
violation of section 3571(b).
The refusal 	to provide 	information and the refusal 	to
sunshine proposals, 	when viewed in the entire context of pre-
impasse bargaining, 	do not 	support a 	finding of 	surface
bargaining under the 	totality of 	conduct 	test 	followed by the
Board. 	See Muroc 	Unified School District 	(1978) 	PERB Decision
No. 80.
The parties 	dealt with the parking 	issue 	from May 	1987 	to
June 	1988, 	when they reached 	impasse. 	They held at 	least 	five
meetings 	to discuss 	this matter. 	There were 	several 	telephone
51

conversations 	and many 	letters 	exchanged. 	Without passing 	on the
merits of the CSU position, 	proposals were 	exchanged and
discussed 	in 	some detail. 	Detailed amounts 	of 	information were
provided to CFA, 	verbally and 	in writing, 	and efforts 	(although
unsuccessful) 	were made to 	locate additional 	information. 	In the
end, 	the parties reached impasse, 	but the totality of CSU's
conduct 	is 	not outweighed by a 	single refusal 	to provide
information. 	The refusal 	to provide 	information is 	a per 	se
violation of the Act, 	however, 	and will be remedied accordingly.
Post-Impasse 	Allegations
I 	have 	found that CSU 	failed to take 	reasonable 	steps 	to
provide 	the 	information 	concerning 	types 	or duration of 	faculty
permits 	sold and the revenue generated therefrom. 	Also, 	it has
been 	found 	that 	CSU unreasonably delayed 	in providing 	the 	1988-89
parking revenue. 	By this 	conduct, 	CSU failed to participate 	in
good faith 	in the impasse procedure, 	in violation of 	section
3571(e). 	This 	same conduct interfered with CFA's 	right to
represent Unit 	3 	in the impasse procedures, 	in violation of
section 3571(b).
In addition, 	there 	exists 	no violation regarding the CFA
request 	for 	1987-88 parking revenue. 	Also, 	CSU did not
unreasonably 	delay providing 	the 	number 	of 	faculty parking
permits 	sold in 	1988-89. 	Finally, 	CSU did not unlawfully
Implement the 	increase 	in daily-use parking rates 	in September
1988.
52

REMEDY
Section 	3563.3 	sets 	forth the Board's 	remedial power. 	That
section states:
The board 	shall 	have the power to 	issue 	a
decision 	and 	order directing 	an 	offending
party 	to 	cease 	and desist 	from the unfair
practice 	and to take 	such affirmative 	action,
including, 	but not limited to, 	the
reinstatement 	of 	employees 	with 	or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
It has 	been 	found that CSU refused to provide 	the 	"requests
for proposals," 	unreasonably delayed providing the 	1988-89
parking revenues, 	and failed to provide 	the number of 	faculty
permits 	sold by 	category or duration and 	the 	revenue 	generated
therefrom. 	It 	is 	therefore appropriate to order CSU to cease and
desist 	from 	such 	conduct. 	Trustees 	of 	the California 	State
University, 	supra, 	PERB Decision No. 	613-H.
It 	is 	also appropriate that CSU be 	required to post a 	notice
incorporating the terms 	of 	the order. 	The Notice 	should be
subscribed by 	an authorized agent 	of 	the 	California 	State
University 	Board 	of 	Trustees 	indicating 	that CSU will 	comply with
the terms 	thereof. 	The Notice 	shall 	not be reduced 	in size.
Posting 	such a 	notice will provide 	employees with notice that 	CSU
has 	acted 	in an unlawful 	manner and 	is 	being required to 	cease
and desist 	from this 	activity. 	It effectuates 	the purposes 	of
the 	HEERA that 	employees 	be 	informed of 	the 	resolution of 	the
controversy 	and will 	announce CSU's 	readiness 	to 	comply with 	the
terms 	of 	the 	ordered remedy. 	See 	Placerville 	Union School
District 	(1978) 	PERB Decision No. 	69; 	Pandol and Sons v.
53

Agricultural Labor Relations Board 	(1979) 	98 Cal.App.3d 580, 	587
[159 Cal.Rptr. 	584]; 	NLRB v. 	Express Publishing Co. 	(1941) 	312
U.S. 	426 	[8 LRRM 415].
CFA seeks 	legal 	fees. 	Under existing Board law, 	legal 	fees
will 	not be awarded to a charging party unless 	there 	is 	a 	showing
that 	the 	unlawful 	conduct has 	been repetitive 	and that the
employer's 	defenses 	are without 	"arguable merit." 	Modesto City
Schools 	and High School District 	(1985) 	PERB Decision No. 	518.
See also Heck's. 	Inc. 	(1974) 	215 NLRB 765 	[88 LRRM 1049], 	holding
that 	legal 	fees 	are 	not 	to be awarded where defenses 	are at 	least
"debatable." 	This 	standard has 	not been met here. 	CFA's 	request
for legal 	fees 	is denied. 	See also Sam Andrews' 	and Sons v.
Agricultural Labor Relations Board 	(1988) 	47 Cal.3d 	157, 	casting
doubt 	on the 	Board's 	authority to award 	legal 	fees 	in unfair
practice cases.
CFA also 	seeks 	an order nullifying 	the 	declaration of
impasse. 	The Board has defined an impasse as 	a 	situation where
"the parties 	have 	considered 	each other's proposals 	and
counterproposals, 	attempted to narrow the gap of disagreement and
have, 	nonetheless, 	reached a point in their negotiations where
continued discussion would be 	futile." 	Mount 	San Antonio
Community College District, 	supra, 	PERB Order No. Ad.-124, p. 	5.
-
As more 	fully described above, 	the parties 	reached this point
after the April 	8, 	1988 	meeting. 	Further discussions would have
been 	futile. 	While 	the 	refusals 	to provide 	information may have
hampered the bargaining 	somewhat, 	it 	cannot be 	concluded on the
54

totality of 	this 	record that but 	for these 	events 	the parties
would not have reached a genuine impasse. 	Therefore, 	CFA's
request 	to nullify the declaration of 	impasse 	is 	denied.
All 	other aspects 	of 	Unfair Practice Charge LA-CE-239-H 	are
hereby 	dismissed.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the entire record herein, 	and pursuant to 	section 3563.3, 	it
is 	hereby 	ordered 	that 	the 	California 	State 	University 	Board 	of
Trustees 	and its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(A) 	Delaying or failing to provide the California
Faculty Association with 	the 	following 	relevant 	and 	necessary
information to 	enable 	it 	to participate 	in negotiations 	and/or
impasse procedures: 	(1) 	requests 	for proposals 	for construction
of new parking facilities; 	(2) 	number of 	faculty parking permits
sold by 	category 	or 	duration 	and 	the 	revenue 	generated 	therefrom;
and 	(3) 	total parking revenue 	for 	1988-89.
(B) 	By the conduct described in paragraph 	(A) 	above,
interfering with the 	right 	of 	the California 	Faculty Association
to represent 	its 	members 	during negotiations 	and the 	impasse
procedures.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION EMPLOYER-EMPLOYEE
RELATIONS ACT:
(A) 	Sign and post copies 	of the attached Notice marked
"Appendix" 	in conspicuous places where notices 	to employees 	are
55

customarily posted at 	each 	campus 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be taken to 	insure
that the Notice is not reduced in size, 	altered, 	defaced or
covered by any other material.
(B) 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the Los Angeles 	Regional 	Director of 	the Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
Pursuant to California Administrative Code, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall become 	final unless
a party 	files 	a 	timely 	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,
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, 	" . . . 	or 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, 	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
56

served on a party 	or 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	sections 32300, 	32305, 	and 32140.
DATED: 	August 21, 	1989
Fred 	D'Orazio
Administrative 	Law 	Judge
57