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

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-2 3 9-H
Request 	for Reconsideration
PERB Decision No. 	799-H
PERB Decision No. 	799a-H
May 11, 	1990
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Appearances: 	Reich, 	Adell & Crost by Peter Hink, 	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 matter is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on a request 	from the California
Faculty Association 	(CFA) 	for reconsideration of 	that portion of
California 	State 	University 	(California 	Faculty Association)
(1990) 	PERB Decision No. 	799-H 	in which the Board denied CFA's
motion to reopen the record. 	In Decision No. 	799-H, 	the Board
affirmed 	a 	PERB 	administrative 	law 	judge's 	proposed decision
which held that the California State 	University 	(CSU) 	did not
engage 	in 	surface bargaining over 	its 	proposal 	to 	increase
parking 	fees.
As part of 	its 	appeal 	of the proposed decision, 	CFA asked
that the 	record be 	reopened to admit 	evidence 	that, 	contrary 	to
CSU's 	stated disinterest at the bargaining table, 	CSU was
involved 	in offering public 	transit 	subsidy programs 	for
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employees. 	In CFA's view, 	this 	evidence would further
demonstrate 	CSU's 	bad 	faith bargaining. 	The Board denied 	the
motion to reopen the record, 	on the basis 	that the proffered
evidence was 	previously 	available 	and 	could 	have 	been discovered
with 	the 	exercise of 	reasonable diligence.
As 	explained below, 	we 	deny the request to reconsider our
denial 	of CFA's 	motion to reopen the 	record.
DISCUSSION
PERB Regulation 324102 states, 	in pertinent part:
. 	. 	. 	The grounds for requesting
reconsideration are 	limited 	to 	claims 	that
the 	decision of 	the 	Board 	itself 	contains
prejudicial errors of fact, 	or newly
discovered 	evidence 	or 	law which was 	not
previously 	available 	and 	could 	not 	have 	been
discovered with 	the 	exercise 	of 	reasonable
diligence.
CFA's 	request 	for 	reconsideration centers 	on its 	assertion 	that
the 	Board made 	a prejudicial 	error of 	fact by 	equating 	evidence
of 	existing 	subsidy programs, 	which was discoverable with the
exercise of 	reasonable diligence, 	with the 	"newly-discovered"
evidence 	that 	CSU was 	involved 	in discussions 	with the 	South
Coast Air Quality Management 	District 	(SCAQMD) 	that 	resulted 	in
the 	expansion of 	the 	subsidy programs 	at CSU's 	Long Beach and
Fullerton campuses. 	CFA asserts 	that CSU's 	discussions with
SCAQMD and the resulting 	subsidy 	expansion, 	more 	so 	than the mere
1The 	subsidy programs 	were 	mentioned 	in 	information provided
to CFA during bargaining, 	in response to an information request.
2PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
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existence of 	subsidy programs, 	demonstrate that CSU was 	acting in
bad 	faith when 	it 	claimed 	it had 	no 	interest 	in pursuing public
transit 	subsidy programs 	as 	an alternative 	to 	a parking 	fee
increase.
In 	its 	earlier motion to reopen the record, 	the 	gravamen of
CFA's 	claim was 	not 	that 	CSU had 	expanded 	existing 	subsidy
programs, 	but that CSU had concealed their very existence. 	Since
information 	regarding 	their 	existence was 	previously provided 	to
CFA, 	the Board's denial of the motion was well-founded. 	In its
request 	for reconsideration, 	CFA now attaches 	a different
significance to 	its proffered evidence, 	i.e., 	that the documents
belie 	CSU's 	stated 	disinterest 	in 	exploring 	expansion 	of 	subsidy
programs 	as 	a 	solution to the parking shortage. 	Therefore, 	given
the content of CFA's 	earlier motion to reopen the record, 	the
Board's 	decision contained no 	error of 	fact.
Assuming that 	a 	factual 	error was 	made 	in 	focussing on 	the
existence of 	subsidy programs 	rather than their expansion, 	CFA
nonetheless 	fails 	to 	establish that 	the 	error was prejudicial.
The 	expansion of 	the 	subsidy programs 	at 	the two 	campuses was 	the
result 	of 	simply 	extending the programs 	to 	cover 	the 	entire
calendar year, 	rather than just the academic year. 	The total
projected 	increase 	in users 	at 	the two 	campuses 	due 	to 	this
change was 27.
In our view, 	this 	evidence 	is 	not 	inconsistent with CSU's
stated disinterest 	in exploring public 	transit 	subsidies 	as 	an
alternative 	to 	a parking 	fee 	increase. 	The record revealed 	a
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substantial 	systemwide parking shortage. 	In light of that, 	the
minor 	expansion of 	the 	existing 	subsidy programs 	at 	two 	campuses
was 	insignificant. 	Since CFA was 	given 	information reflecting
the existence of 	subsidy programs, 	it was 	not 	in any way
constrained 	from making proposals 	involving 	such 	subsidies.
Therefore, 	we 	find that 	the proffered 	evidence does 	not 	indicate
bad faith on the part of CSU and, 	thus, 	the evidence would not
change 	our 	earlier 	finding that 	CSU did 	not 	engage 	in 	surface
bargaining. 	Consequently, 	even if a 	factual error was made 	in
the underlying decision, 	the error was 	not prejudicial.
ORDER
In accordance with the discussion above, 	the request 	for
reconsideration of 	PERB 	Decision 	799-H 	is 	DENIED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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