Regents of the University of California (American Federation of State, County and Municipal Employees) (PERB 0850H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	LA-CE-258-H
PERB 	Decision No. 	850-H
October 	30, 	1990
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Appearance: 	Cliff Fried, 	for American Federation of State,
County 	and 	Municipal 	Employees.
Before Hesse, 	Chairperson; 	Shank, 	Camilli and Cunningham,
Members.
DECISION AND 	ORDER
This 	case 	is before the Public 	Employment Relations 	Board
(Board) 	on appeal by the American Federation of State, 	County and
Municipal 	Employees 	of 	a 	Board 	agent's 	dismissal 	(attached
hereto) 	of 	its 	charge that the Regents 	of the University of
California violated section 3571(a), 	(b) 	and 	(c) 	of the Higher
Education Employer-Employee Relations Act 	(HEERA).1 We have
reviewed the dismissal 	and, 	finding 	it to be free of prejudicial
error, 	adopt 	it as 	the Decision of the Board itself.
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government Code.
(
e

The unfair practice charge 	in Case No. 	LA-CE-258-H 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	Board2
22Member Craib did not participate 	in this 	Decision.
22

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS Angeles Regional Office
3530 Wilshire Blvd.. Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
May 30, 	1990
Cliff 	Fried
13833 Oxnard Street, 	#16
Van Nuys, 	California 	91401
RE: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-258-H, 	American Federation of State. 	County
and Municipal 	Employees 	v. 	Regents 	of 	the 	University of
California
Dear Mr. 	Fried:
I 	indicated 	to you 	in my 	attached 	letter dated May 	3, 	1990,
that 	the 	above-referenced 	charge 	did 	not 	state 	a 	prima 	facie
case. 	You were 	advised 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the 	charge 	to 	state 	a prima 	facie 	case, 	or withdrew it
prior to May 	10, 	1990, 	the charge would be dismissed. 	I 	later
extended this deadline to May 	25, 	1990.
On May 25, 	1990, 	you filed an amendment to the charge. 	The
amendment 	challenges 	the 	accuracy 	or the 	relevance 	of 	footnote 	1
on page 	3 	of my May 	3 	letter, 	which quotes 	findings 	of 	fact made
by 	an Administrative 	Law Judge 	in a 	separate proceeding. 	My May
3 	letter does 	not, 	however, 	rely upon those findings 	of 	fact 	for
any of 	its 	conclusions.
The 	amendment 	alleges 	that 	"there was 	[sic] 	negotiations 	on
parking 	in which 	UC 	[the 	University] 	did 	not 	indicate 	that 	there
was 	a bond 	issue which made 	it 	impossible 	to 	negotiate parking
fee 	reductions 	as 	AFSCME proposed during negotiations." 	It 	is
not 	alleged when these 	negotiations 	took place. 	More
significantly, 	it 	is 	not 	alleged that 	at the time 	of 	these
negotiations AFSCME 	made 	a 	request 	for relevant 	information. 	As
held 	in Oakland 	Unified 	School 	District 	(1982) 	PERB Decision No.
275, 	at p. 	18, 	"Absent such a request, 	the 	[employer] 	is under no
obligation to provide 	information," 	and 	its 	failure 	to provide
--	 	---	 -
e

information 	is 	not 	evidence of bad 	faith.1 I 	am therefore
dismissing 	the 	charge based on 	the 	facts 	and 	reasons 	contained 	in
this 	letter and 	in my May 	3 	letter.
Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CE-258-H
May 30, 	1990
Page 	2
Right 	to Appeal
Pursuant 	to 	Public 	Employment Relations 	Board 	regulations, 	you
may 	obtain 	a 	review of 	this dismissal 	of 	the 	charge by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service 	of 	this 	dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and 	five
copies 	of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board
itself before the 	close 	of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or 	Express 	United 	States 	mail postmarked 	no
later 	than 	the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in 	opposition within 	twenty 	calendar 	days
following 	the 	date 	of 	service 	of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).
Service
All 	documents 	authorized 	to be 	filed 	herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon a party 	or 	filed
with 	the 	Board 	itself. 	(See California Administrative 	Code,
title 	8, 	section 	32140 	for the 	required 	contents 	and a 	sample
form.) 	The 	document will 	be 	considered properly 	"served" 	when
personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
1There 	is 	no 	allegation that 	the 	University 	deliberately
misrepresented 	or 	concealed 	information 	about 	the 	bond 	so 	as 	to
prevent negotiations about it. 	Compare, 	e.g., 	Avila Group, 	Inc.
(1975) 	218 NLRB 	633 	[89 LRRM 	1364]; 	Royal 	Plating & Polishing
Co.. 	Inc. 	(1966) 	160 NLRB 990 	[63 LRRM 1045].
-

Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CE-258-H
May 30, 	1990
Page 3
Extension 	of 	Time
A 	request 	for 	an 	extension of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously 	noted 	address. 	A request 	for 	an extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing 	the document. 	The 	request 	must
indicate good 	cause 	for and, 	if known, 	the position of 	each other
party 	regarding 	the 	extension, 	and 	shall 	be 	accompanied 	by 	proof
of 	service 	of 	the 	request 	upon each party 	(California
Administrative Code, 	title 8, 	section 32132).
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	James Odell

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 3, 1990
Cliff 	Fried
13833 Oxnard Street, 	#16
Van Nuys, 	CA 	91401
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-258-H,
American Federation 	of 	State. 	County 	and Municipal 	Employees
v. 	Regents 	of 	the University 	of California
In the 	above-referenced 	charge, 	the American Federation of 	State,
County and Municipal 	Employees 	(AFSCME) 	alleges 	that 	the
University of California 	(University) 	made unilateral 	changes 	and
failed 	to provide 	information. 	This 	conduct 	is 	alleged 	to
violate Government Code sections 	3571(a), 	(b) 	and 	(c) 	of the
Higher Education Employer-Employee Relations Act 	(HEERA).
My 	investigation of 	the 	charge 	revealed 	the 	following 	facts.
AFSCME 	is 	the 	exclusive 	representative 	of 	the 	University's
Service 	Unit, 	Clerical 	and Allied Services 	Unit, 	and Patient Care
Technical Unit. 	Since July 	1, 	1986, 	the collective bargaining
agreements 	for all 	three 	units 	have provided 	in part 	as 	follows:
Article 	27
PARKING
A. 	The 	University 	shall 	provide parking 	and
parking-related 	services 	at 	each 	campus 	or
the 	Laboratory 	to 	the 	same 	extent 	and 	under
the 	same 	conditions 	as 	normally provided 	for
other University non-managerial, 	non-
supervisory, non-confidential, non-
represented 	staff 	employees 	at 	the 	employee's
location.
B. 	It 	is 	understood and 	agreed that parking
spaces 	designated 	for 	employees 	may 	from time
to 	time 	be 	eliminated 	or 	reassigned 	due 	to
construction, 	special events, 	and/or
operational 	needs 	of 	the 	University.
C. 	The provisions 	of 	this 	Article 	are 	not
subject to Article 	6 	- 	Grievance Procedure or
Article 	7 	- Arbitration Procedure of 	this Agreement.
--	---~------

Warning 	Letter
LA-CE-258-H
May 3, 	1990
Page 	2
Article 	42
WAIVER
A. 	The parties 	acknowledge 	that during 	the
negotiations 	which 	resulted 	in 	this
Agreement, 	each had the 	unlimited right 	and
opportunity 	to make demands 	and proposals
with 	respect 	to 	any 	subject 	or matter 	not
removed 	by 	law 	from the 	area 	of 	collective
bargaining, 	and the understandings 	and
agreements 	arrived 	at 	by 	the parties 	after
the 	exercise 	of 	the 	right 	and 	opportunity 	are
set 	forth in this Agreement. 	The rights 	and
procedures 	granted 	and 	set 	forth under 	Staff
Personnel 	Policy will 	no 	longer 	apply 	to
employees 	covered by this Agreement. 	The
University and AFSCME, 	for the 	life 	of 	this
Agreement, 	each voluntarily 	and 	unqualifiedly
waives 	the right, 	and each agrees that the
other 	shall 	not 	be 	obligated 	to 	bargain
collectively with 	respect 	to 	any 	subject 	or
matter referred to, 	or covered 	in this
Agreement, 	or with respect to 	any 	subject or
matter 	not 	specifically 	referred 	to 	or
covered by this Agreement, 	even though 	such
subject 	or matter may 	not have 	been within
the 	knowledge 	or 	contemplation of 	either 	or
both 	of 	the parties 	at 	the 	time 	they
negotiated 	or 	signed 	this Agreement.
On or about August 	6, 	1986, 	the University 	sold Parking 	System
Revenue Bonds 	for 	its 	Los Angeles 	campus 	(UCLA). 	The Official
Statement 	concerning 	these 	bonds 	provided 	in part 	as 	follows:
Establishment of Regulations. 	Rates and
Charges. 	So 	long as 	Bonds 	are Outstanding,
The 	Regents 	will 	establish 	and 	maintain 	such
rules 	and 	regulations 	and 	such rentals,
rates, 	fees 	and 	charges 	for the use of the
Los Angeles 	System as 	may be necessary 	(1) 	to
pay the 	costs 	of 	maintenance 	and 	operation
thereof; 	and 	(2) 	to maintain Net Revenues 	at
135% 	of 	the 	Maximum Aggregate Annual 	Debt
Service.

Warning 	Letter
LA-CE-258-H
May 	3, 	1990
Page 	3
The 	University did 	not 	give AFSCME 	prior notice 	of 	this
provision. l
On February 	15, 	1989, 	the University 	sent to all 	UCLA employees 	a
memo 	stating that effective July 	1, 	1989, 	campus parking 	fees
would 	increase 	from $22 	to $30 per month, 	and 	from $3 	to 	$4 	per
entry. 	The memo explained in part, 	"This 	fee 	increase 	is
required 	in order 	to 	keep pace with 	escalating 	operating 	costs
and 	to provide 	sufficient 	funds 	for the payment 	of 	bond
indebtedness 	on 	existing 	and 	planned 	future parking 	facilities."
On March 	28, 	1989, 	AFSCME responded to the University with a
letter 	stating 	in part 	as 	follows:
Your 	attached 	letter 	received 	on 	February 	21,
1989, 	unilaterally 	imposes 	and implements 	a
parking 	fee 	increase 	for 	all 	bargaining 	unit
employees with no prior notice, 	discussion or
negotiations with AFSCME Locals 	3234, 	3235,
3238, 	3239 and 3270.
The unilateral 	36.4% 	increase 	in parking 	fees
is 	in violation of 	the 	collective bargaining
agreement 	between AFSCME 	and 	the 	University
of California. 	The parking 	fee 	increase
results 	in a 	de 	facto decrease 	in bargaining
employee unit 	salaries 	that was 	not
1In a Proposed Decision issued on March 26, 	1990, 	in Unfair
Practice Case No. 	LA-CE-250-H, 	Cliff Fried v. 	Regents of the-
University of California, 	at p. 	9, 	fn. 	6, 	the Administrative Law
Judge made 	the 	following 	findings 	of 	fact:
[AFSCME 	Representative Cliff] 	Fried 	testified
that, 	prior to the 	1989 parking increase, 	he
was 	unaware 	of 	the 	specific 	limitations
imposed by the bond. 	However, 	funding
limitations 	stemming 	from 	the 	bond
indebtedness 	as well 	as 	the 	inability 	to use
state 	funds 	had 	been discussed 	during 	the
four prior parking increases 	in 1981, 	1982,
1985 	and 	1987. 	Although the 	specifics 	of
these 	limitations 	may 	not 	have 	been discussed
in detail, 	it 	is 	clear 	from the record that
AFSCME 	and 	Fried were 	generally 	aware 	of
these 	limitations 	prior 	to 	the 	1989 	increase.

Warning 	Letter
LA-CE-258-H
May 	3, 	1990
Page 	4
negotiated, 	nor was 	the 	issue even raised
during bargaining. 	Please 	consider 	this 	both
a 	grievance 	filed at 	Step 	II 	of 	the 	grievance
procedure 	and 	an 	immediate 	request 	for 	an
expedited 	arbitration procedure 	to 	resolve
this 	issue 	in as prompt a manner as possible.
Please 	set up a Step 	II 	grievance meeting
immediately.
The 	contract 	sections 	violated 	are:
1,3,4,5,15,17,33 	and 	42 	and 	any 	other
applicable 	contract 	sections. 	The remedy
sought 	is 	the 	immediate 	rescinding of 	the 	fee
increase with 	notices 	posted 	accordingly.
Prior to the 	Step 	II 	meeting, 	please provide
the 	following 	information:
6. 	Copies 	of 	any 	and all 	University
policies, 	regulations, 	or laws affecting
parking 	at 	UCLA.
7. 	All memos, 	letters and internal
documents 	utilized 	in determining the 	need
for or rationale 	for 34.6% 	[sic] 	parking 	fee
increase.
On April 	17, 	1989, 	the University responded to AFSCME with a
letter 	stating 	in part as 	follows:
The 	following 	information 	and 	attachments
responds 	to 	your public 	record 	request 	as
indicated:
6. 	Attachments 	I, 	J, 	and K respond to this
request.
7. 	Attachments 	L 	and M respond 	to 	this
request.
The 	Official 	Statement 	concerning 	the 	bonds 	was 	not 	among 	the
attachments.

Warning 	Letter
LA-CE-258-H
May 3, 	1990
Page 	5
On May 30, 	1989, 	AFSCME's 	grievance was denied at Step 	2. 	On May
31, 	1989, 	AFSCME 	specifically requested a copy of the Official
Statement concerning the bonds, 	and on June 5, 	1989, 	the
University provided a copy. 	Also on June 	5, 	1989, 	AFSCME took
its 	grievance 	to 	Step 	3. 	AFSCME 	later withdrew the 	grievance
without 	prejudice.
The parking 	fee 	increase was 	implemented on July 	1, 	1989.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie 	violation of 	the 	HEERA, 	for 	the 	reasons 	that 	follow.
AFSCME 	contends 	that both the 	1986 	bond 	and the 	1989 	fee 	increase
were 	unilateral 	changes 	in parking 	fee policy 	that 	should 	have
been negotiated with AFSCME. 	In Articles 	27 	and 	42 	of 	the
collective bargaining agreements, 	however, 	AFSCME clearly and
unmistakably waives 	its 	right 	to bargain about 	such parking 	fee
issues. 	In Article 42 	(Waiver), 	AFSCME and the University 	"each
voluntarily 	and unqualifiedly waives 	the 	right, 	and 	each 	agrees
that 	the 	other 	shall 	not 	be 	obligated 	to 	bargain 	collectively
with 	respect 	to 	any 	subject 	or matter referred to, 	or 	covered 	in
this Agreement." 	Article 	27 	(Parking) 	obligates 	the University
to 	"provide 	parking 	and 	parking-related 	services 	at 	each 	campus
or the Laboratory to the 	same 	extent 	and under the 	same
conditions 	as 	normally provided 	for 	other 	University 	non-
managerial, 	non-represented 	staff 	employees 	at 	the 	employee's
location 	[emphasis 	added]." 	The University is 	not 	obligated 	to
have 	any particular 	"conditions" 	on parking, 	so 	long as 	the
"conditions" 	are the same 	as 	for other employees. 	Although the
term 	"conditions" 	is broader than fees, 	in its plain meaning 	it
includes 	fees, 	which must be paid as 	a 	"condition" 	of parking.
AFSCME 	therefore waived 	its 	right 	to 	negotiate 	about parking 	fee
issues, 	so 	long as 	the 	University made those 	fees 	the 	same 	for
AFSCME-represented 	employees 	as 	for 	other 	employees.
AFSCME 	also 	contends 	that 	the 	University 	failed 	to provide
information about the bond. 	When AFSCME 	requested 	"policies,
regulations 	or laws" 	and 	"memos, 	letters 	and internal documents"
concerning parking 	(on March 28, 	1989), 	the University provided
five different documents 	(on April 	17, 	1989). 	The University did
not 	at 	that 	time provide 	the 	Official 	Statement 	concerning 	the
bonds, 	but 	it does 	not 	appear that the Official 	Statement 	itself
is a policy, 	regulation, 	law, 	memo, 	letter or internal document.
(The 	Official 	Statement 	appears 	to be an 	external 	document 	that
summarizes 	indenture provisions.) 	When AFSCME 	specifically
requested the Official Statement 	(on May 30, 	1989), 	the
University provided it 	five days 	later 	(on June 	5, 	1989).

Warning 	Letter
LA-CE-258-H
May 3, 	1990
Page 	6
For these reasons, 	the 	charge as presently written does 	not 	state
a prima 	facie case. 	If 	there are 	any 	factual 	inaccuracies 	in
this 	letter or 	any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	The 	amended 	charge 	should be 	prepared 	on 	a 	standard
PERB 	unfair 	practice 	charge 	form 	clearly 	labeled 	First 	Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish to make,
-and 	must 	be 	signed 	under 	penalty 	of 	perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served on the 	respondent 	and
the original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you 	before 	May
10, 	1990, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Alien
Regional 	Attorney