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

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	CSU DIVISION,
SEIU LOCAL 1000, 	AFL-CIO,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY,
Respondent.
Case No. 	LA-CE-328-H
Request 	for 	Reconsideration
PERB Decision No. 	1093b-H
PERB Decision No. 	1093c-H
June 6, 	1997
Appearances: 	California State Employees' 	Association by
Howard L. 	Schwartz, 	Attorney, 	for California State Employees'
Association, 	CSU Division, 	SEIU Local 	1000, 	AFL-CIO; 	William G.
Knight, 	University Counsel, 	for California State University.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on a 	request by the
California State Employees' 	Association, 	CSU Division, 	SEIU Local
1000, 	AFL-CIO 	(CSEA), 	for reconsideration of California State
University 	(1997) 	PERB Decision No. 	1093b-H. 	In that decision,
on remand 	from the 	California 	Court 	of Appeal, 	Second Appellate
District 	(Court), 	the Board ordered the California State
University 	(CSU) 	to pay eligible bargaining unit members 	the
merit 	salary adjustments 	(MSAs) 	unlawfully suspended on June 	1,
1992, 	plus 	interest at the rate of 	7 percent per annum.
PROCEDURAL 	HISTORY
In California State University 	(1995) 	PERB Decision
No. 	1093-H, 	the Board dismissed the 	complaint alleging that
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CSU violated section 3571(a) 	and 	(c) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA)1 by unilaterally
suspending CSEA-represented employees' 	MSAs on June 1, 	1992. 	In
California State Employees' 	Assn. 	v. 	Public Employment Relations
Bd. 	(1996) 	51 Cal.App.4th 923 	[59 Cal.Rptr.2d 488], 	the Court
reversed 	the 	Board's 	decision and 	remanded 	the 	case 	to 	PERB 	for
an order of back pay, 	plus 	interest. 	The Court 	stated that 	CSEA
was 	to recover its 	costs. 	In California State University, 	supra.
PERB Decision No. 	1093b-H, 	the Board ordered CSU to cease and
desist 	from 	failing 	to meet 	and 	confer 	in good 	faith with CSEA
over 	the 	MSA 	suspension and 	from denying 	bargaining unit 	members
the 	right 	to be 	represented by CSEA. 	CSU was 	ordered 	to pay
eligible 	bargaining unit 	members 	the 	unlawfully 	suspended MSAs,
including 	7 	percent 	interest 	per annum.
CSEA'S 	REQUEST 	FOR 	RECONSIDERATION
CSEA requests 	reconsideration on two grounds. 	First, 	CSEA
contends 	that 	PERB 	erred by 	failing 	to 	order recovery of 	costs
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Section 3571 states, 	in pertinent part:
It 	shall be unlawful 	for the higher education
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
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by CSEA. 	In its 	remand to PERB, 	the 	Court 	ordered back pay, 	plus
interest, 	and 	indicated 	"Petitioner to recover its 	costs." 	PERB
ordered back pay, 	plus 	7 percent 	interest, 	but made no mention of
costs.
Second, 	CSEA argues 	that 	the appropriate 	interest 	rate 	to
be 	applied to 	PERB's back pay order 	is 	10 percent pursuant 	to
Code 	of 	Civil 	Procedure 	section 	685.010.2 CSEA asserts 	that 	the
exemption 	from section 	685.010 	provided 	in 	the Government 	Code
for 	"local public entities" 	does not apply to CSU because 	it 	is 	a
division 	of 	the 	state 	"claims 	against 	which are paid by warrants
drawn by 	the 	Controller."
CSU does not 	challenge CSEA's 	request 	for costs. 	However,
CSU asserts 	that 	the Government 	Code 	limits 	the 	rate 	of 	interest
applicable to CSU to 7 percent. 	(Ellis v. 	State of California
(1996) 	51 	Cal.Rptr.2d 458 	review granted 51 	Cal.Rptr.2d 42
[917 	P.2d 	1165].)
DISCUSSION
PERB Regulation 324103 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
2Code of Civil 	Procedure section 685.010 	states, 	in
pertinent part:
Interest accrues at 	the 	rate of 	10 percent
per annum on the principal 	amount 	of 	a money
judgment 	remaining 	unsatisfied.
3PERB 	regulations 	are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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not 	have been discovered with 	the 	exercise 	of
reasonable 	diligence.
The Board denies 	requests 	for 	reconsideration 	that 	fail 	to
establish 	that 	the 	Board 	decision 	contained prejudicial 	errors
of 	fact 	or newly discovered evidence 	or 	law. 	(Redwoods 	Community
College District 	(1994) 	PERB Decision No. 	1047a.) 	CSEA's 	claim
that 	the 	Board erred by not 	awarding 	10 	percent 	interest 	under
Code 	of 	Civil 	Procedure 	section 	685.010 	fails 	to meet 	regulation
32410's 	requirements 	and 	the 	request 	for 	reconsideration 	of 	the
Board's 	interest 	rate award 	is 	denied.4
As 	noted, 	the 	Court's 	decision 	in California State
Employees' 	Assn. 	v. 	Public Employment Relations Bd.. 	supra.
- - -
51 Cal.App.4th 923 	stated, 	"Petitioner to recover its 	costs."
The Board concludes 	that 	the 	omission of 	CSEA's 	cost 	recovery
from the 	Order 	constitutes 	prejudicial 	error of 	fact 	within 	the
meaning of PERB Regulation 32410. 	Accordingly, 	it 	is appropriate
to amend the Order in California State University, 	supra, 	PERB
Decision No. 	1093b-H to provide 	for recovery of 	CSEA's 	costs
pursuant 	to 	the 	Court's 	decision.
4The 	Board notes 	that 	there 	are 	no 	circumstances 	under which
CSU would be 	subject 	to Code 	of 	Civil 	Procedure 	section 	685.010.
As 	a division of 	the 	state with 	claims paid by warrants 	drawn
by the Controller, 	CSU is 	exempt 	from section 685.010 	under
Government 	Code sections 	965.5(b) 	and 940.6. 	(Union Pacific
Railroad Co. 	v. 	State Bd. 	of Equalization 	(1991) 	231 Cal.App.3d
983 	[282 Cal.Rptr. 	745]; 	California Federal Savings & Loan
Assn. 	v. 	City of Los Angeles 	(1995) 	11 Cal.4th 342
[45 	Cal.Rptr.2d 279].)
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ORDER .
The 	request 	for reconsideration of 	the 	interest 	rate 	in
California State University 	(1997) 	PERB Decision No. 	1093b-H is
hereby DENIED.
The 	request 	for reconsideration of 	the award of 	costs 	is
GRANTED and 	the Order 	in California State University 	(1997) 	PERB
Decision No. 	1093b-H is amended as 	follows:
Pursuant 	to 	the 	Higher Education 	Employer-Employee 	Relations
Act 	(HEERA), 	Government Code section 3563.3 	it 	is hereby ordered
that 	the 	California State University 	(CSU) 	and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Taking unilateral 	action and 	failing 	to meet
and 	confer 	in good 	faith with 	the 	California State 	Employees'
Association, 	CSU Division, 	SEIU Local 1000, 	AFL-CIO 	(CSEA),
about 	the 	suspension of merit 	salary adjustments; 	and
2. 	By this 	same 	conduct, 	denying bargaining unit
employees 	the 	right 	to be 	represented by CSEA.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE THE 	PURPOSES 	OF HEERA:
1. 	Pay eligible bargaining unit members 	the merit
salary 	adjustments 	unlawfully 	suspended by 	CSU beginning 	on
June 	1, 	1992. 	Payments 	to eligible employees shall be subject
to interest at 	the rate of seven 	(7) 	percent per annum.
2. 	Pursuant 	to the 	Court's 	direction 	in California
State Employees' 	Assn. 	v. 	Public Employment Relations Bd. 	(1996)-
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51 Cal.App.4th 923 	[59 	Cal.Rptr.2d 488], 	CSEA is 	to recover its
costs.
3. 	Within thirty 	(30) 	days 	following service of 	this
Decision and Order, 	post at all work locations where notices 	to
employees are 	customarily 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.
4. 	Within thirty 	(30) 	days 	of 	service of 	this
Decision and Order, 	notify the Sacramento Regional 	Director of
the Public Employment Relations Board, 	in writing, 	of 	the steps
the 	employer has 	taken to 	comply with 	the 	terms 	of 	this 	Order.
Continue 	to 	report 	in writing 	to 	the Regional Director thereafter
as 	directed. 	All 	reports 	to 	the Regional 	Director shall 	be
served 	concurrently 	on 	CSEA.
Members 	Johnson and Dyer 	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
In Unfair Practice Case No. 	LA-CE-328-H, 	California State
Employees Association. 	CSU Division SEIU Local 	1000. 	AFL-CIO v.
California State University, 	in which all 	parties 	had the 	right
to participate, 	it has been found that 	the California State
University 	(CSU) 	violated 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA), 	Government Code section 3571(a) 	and 	(c)
when 	it 	unilaterally 	suspended merit 	salary adjustments 	for
employees 	represented by 	the 	California 	State 	Employees
Association, 	CSU Division, 	SEIU Local 1000, 	AFL-CIO 	(CSEA) 	on
June 	1, 	1992, 	prior to the completion of bargaining with CSEA.
-----
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Taking unilateral 	action and failing 	to meet 	and
confer 	in good 	faith with the 	CSEA about 	the 	suspension of merit
salary adjustments; 	and
2. 	By the same conduct, 	denying bargaining unit
employees 	the 	right 	to be 	represented by CSEA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED 	TO 	EFFECTUATE 	THE 	PURPOSES 	OF HEERA:
1. 	Pay eligible bargaining unit members 	the merit
salary 	adjustments 	unlawfully 	suspended by 	CSU beginning 	on
June 1, 	1992. 	Payments 	to eligible employees shall be subject
to 	interest at 	the 	rate of 	seven 	(7) 	percent per annum.
2. 	Pursuant 	to 	the 	Court's 	direction 	in California
State Employees' 	Assn. 	v. 	Public Employment Relations Bd. 	(1996)
51 	Cal.App.4th 923 	[59 	Cal.Rptr.2d 488], 	CSEA is 	to recover its
costs.
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.
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