Trustees of the California State University (Academic Professionals of California) (PERB 1231H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ACADEMIC 	PROFESSIONALS 	OF
CALIFORNIA,
Charging 	Party,
v.
TRUSTEES 	OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
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) 	Case No. 	LA-CE-465-H
PERB Decision No. 	1231-H
November 	17, 	1997
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Appearance: 	Rothner, 	Segall, 	Bahan & Greenstone by Glenn
Rothner, 	for Academic Professionals 	of California.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Academic 	Professionals 	of 	California 	(APC) 	to a proposed
decision 	(attached) 	by a PERB administrative law judge 	(ALJ).
The ALJ dismissed APC's 	unfair practice 	charge 	which alleged 	that
the Trustees 	of 	the California State University 	(CSU) 	violated
section 3571(a), 	(b) 	and 	(c) 	of the Higher Education Employer-
Employee 	Relations 	Act 	(HEERA)1 by unilaterally 	implementing
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	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

changes 	in the parties' 	grievance and arbitration procedure
without 	providing APC with notice 	or 	the 	opportunity 	to
negotiate.
The Board has 	reviewed the 	entire 	record 	in 	this 	case
including 	the ALJ's 	proposed decision and 	the 	filings 	of 	the
parties. 	The Board 	finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the 	decision of 	the Board 	itself 	consistent 	with
the 	following discussion.
DISCUSSION
As 	noted by the ALJ, 	APC has 	failed to establish that 	CSU's
conduct 	in this 	case 	constitutes 	a 	change 	in the parties'
established 	grievance 	and 	arbitration procedure 	which breached
their written agreement 	or established past practice. 	Therefore,
the 	Board's 	standard 	for 	analyzing 	alleged unilateral 	changes 	has
not been met. 	(Grant Joint Union High School District 	(1982)
PERB Decision No. 	196; 	Pajaro Valley Unified School District
(1978) 	PERB Decision No. 	51.)
APC's 	argument 	that 	this 	case 	involves 	a distinctive variety
of unilateral 	change, 	repudiation of a contractual provision, 	is
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
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without merit. 	This 	case 	involves 	a dispute 	over the processing
and arbitrability of 	specific grievances under the parties'
collective bargaining agreement 	(CBA). 	CSU took the 	consistent
legal 	position, 	based on its 	interpretation of 	the 	relevant 	CBA
provisions 	and applicable 	legal 	precedent under HEERA, 	that 	it
had no 	obligation 	to arbitrate 	the 	grievances 	in question.
Maintenance 	of 	that 	legal 	position does 	not 	constitute a
unilateral 	change. 	(Hacienda La 	Puente Unified School 	District
(1997) 	PERB Decision No. 	1187.)
The Board notes 	that 	HEERA section 3563.2(b)2 provides 	that
PERB has no authority to enforce the parties' 	CBA. 	Further,
HEERA section 3589(b)3 specifically provides 	that 	a dispute based
on an alleged refusal 	to proceed to arbitration pursuant 	to a 	CBA
provision may be pursued 	in 	court.
2Section 3563.2(b) 	states:
(b) 	The Board shall 	not 	have authority to
enforce agreements between the parties, 	and
shall 	not 	issue 	a 	complaint 	on any charge
based 	on alleged violation 	of 	such an
agreement 	that would not 	also 	constitute 	an
unfair practice 	under 	this 	chapter.
3Section 3589(b) 	states:
(b) 	Where a party to a memorandum of
understanding 	is 	aggrieved by 	the 	failure,
neglect, 	or refusal 	of 	the other party to
proceed 	to arbitration pursuant 	to 	the
procedures 	provided 	therefor 	in 	the
memorandum, 	the 	aggrieved party may bring
proceedings pursuant 	to Title 	9 	(commencing
with Section 1280) 	of 	Part 	3 	of 	the Code of
Civil 	Procedure 	for a 	court 	order directing
that 	the 	arbitration proceed pursuant 	to 	the
procedures 	provided 	therefor 	in 	such
memorandum of 	understanding.
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ORDER
The unfair practice 	charge and 	complaint 	in Case
NO. 	LA-CE-465-H are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Amador 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ACADEMIC 	PROFESSIONALS 	OF
CALIFORNIA,
Charging 	Party,
v.
TRUSTEES 	OF THE 	CALIFORNIA
STATE UNIVERSITY,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-465-H
PROPOSED 	DECISION
(6/30/97)
Appearances: 	Edward Purcell, 	Consultant, 	for Academic
Professionals of California; 	William Knight, 	University Counsel,
for Trustees 	of 	the 	California 	State University.
Proposed Decision by Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
A union 	contends 	here 	that 	the 	university unilaterally
implemented 	changes 	in 	the 	grievance 	and 	arbitration procedure
without 	providing notice 	or 	an opportunity to negotiate.
Specifically, 	the 	union contends 	that 	the university unlawfully
refused 	to process 	three 	grievances 	filed when no 	collective
bargaining agreement was 	in effect, 	and imposed a number of 	other
changes 	related to 	the 	selection of 	arbitrators 	and the 	union's
standing 	to pursue 	certain grievances.
The 	university responds 	that 	it 	had no 	legal 	duty to process
the 	grievances 	because 	they were 	filed when no 	agreement 	was 	in
effect, 	and the 	case 	concerns 	a mere 	arbitrability dispute 	that
is 	more 	appropriately 	resolved 	through 	the 	negotiated procedure
or in court.
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The Academic 	Professionals of 	California 	(APC) 	commenced
this action on September 20, 	1996, 	by filing an unfair practice
charge 	against 	the 	Trustees 	of 	the 	California 	State 	University
(CSU). 	On October 25, 	1996, 	the Office of the General Counsel of
the 	Public 	Employment 	Relations 	Board 	(PERB or Board) 	issued a
complaint 	alleging 	that 	CSU unilaterally 	changed 	its 	grievance
processing policy by 	refusing 	to 	arbitrate 	several 	grievances.
This conduct, 	the complaint alleges, 	violated the Higher
Education Employer-Employee 	Relations Act 	(HEERA) 	section 	3571
(c) , 	(a), and (b).1
CSU answered the complaint 	on November 18, 	1996, 	generally
denying 	the 	allegations 	and 	asserting 	an 	affirmative 	defense 	that
the 	complaint 	concerns a contract 	dispute, 	not 	a change 	in
1HEERA is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Unless otherwise 	indicated, 	all 	statutory references 	are 	to the
Government 	Code. 	Section 3571 	states:
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.
(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.
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policy. 	Denials and defenses will be addressed below, 	as
necessary.
An 	informal 	conference 	was 	conducted by a 	PERB
administrative 	law judge on November 12, 	1996, 	but 	the dispute
was 	not 	resolved. 	A 	formal 	hearing was 	conducted by
Administrative Law Judge W. 	Jean Thomas 	in Los Angeles,
California, 	on February 13, 	1997. 	Final briefs were 	submitted on
April 28, 	1997.
Because 	of 	the 	sudden death of Administrative 	Law Judge
Thomas, 	the 	case was 	reassigned to 	the undersigned administrative
law judge, 	pursuant to PERB Regulation section 32168(b), 	on
June 4, 	1997.2
FINDINGS 	OF 	FACT
Jurisdiction
APC 	is 	the 	exclusive 	representative 	of 	an appropriate unit
of employees 	(Unit 	4, 	Academic Support) 	within the meaning of
section 3562(c). 	CSU is a higher education employer within the
meaning of section 3562(h).
Negotiations
APC 	and CSU were 	parties 	to 	a memorandum of 	understanding
(MOU), 	effective May 1, 	1994, 	to June 30, 	1995. 	In the spring of
1995, 	the parties began negotiations 	for a successor MOU. 	Before
the parties 	could agree 	to a new contract, 	the existing MOU
expired with no agreement 	to continue 	its 	terms. 	Eventually, 	the
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	Part III.
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parties 	reached agreement 	on a new MOU, 	effective May 14, 	1996,
to June 30, 	1998. 	Thus, 	no MOU existed between June 30, 	1995,
and May 14, 	1996.
This 	dispute 	is 	about 	grievances 	filed during this 	interim
period. 	There was 	no discussion during the negotiations 	about
the 	processing of 	grievances 	filed during 	this 	period.
Article 	10 	of 	the new MOU contains 	a grievance 	and
arbitration procedure. 	Several 	relevant 	sections 	in that 	article
were 	carried 	forward 	from 	the 	prior MOU without 	discussion.
These are as 	follows.
Section 	10.1 	defines 	a grievance 	as
[A] 	written allegation by a grievant 	that
there has been a violation, 	misapplication,
or misinterpretation of 	a 	specific 	term of
this Agreement.
Section 	10.6.c 	contains 	a procedure 	for resolving
arbitrability claims. 	In relevant part, 	it provides:
If an arbitrability question exists, 	a two-
stage 	hearing will be 	required. 	The parties,
pursuant 	to 	the 	procedures 	described herein,
shall 	select 	an arbitrator to 	convene 	a
formal 	hearing 	and 	render 	a written decision
relative 	to the 	question of 	arbitrability.
The 	section goes 	on to state 	that 	grievances 	found to be not
arbitrable 	"shall 	be 	deemed null 	and void." 	And grievances 	found
to be 	arbitrable 	shall 	undergo 	further processing before 	the
arbitrator on the merits.
Section 	10.6 	contains 	the procedure 	for 	selecting
arbitrators.
The parties 	shall 	attempt 	to agree 	on a
mutually acceptable 	arbitrator. 	If 	agreement
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on an 	arbitrator has 	not 	been 	reached within
sixty 	(60) 	days of 	the 	filing of 	the 	request
for arbitration, 	the Union may request 	the
American Arbitration Association 	supply 	a
list of 	seven 	(7) 	names pursuant 	to 	its
rules. 	If 	the Union fails to make such a
request 	of 	the AAA within ninety 	(90) 	days 	of
the 	filing of 	the 	request 	for arbitration,
the 	request 	for arbitration 	shall 	be
considered withdrawn 	and 	the 	grievances
resolved.
Section 	10.15 	addresses 	grievances 	filed prior 	to 	the
effective date of the MOU. 	It 	states:
The processing 	of 	grievances 	filed and
unresolved prior 	to 	the 	effective 	date 	of
this Agreement 	shall 	proceed under the
provisions 	of 	the grievance procedure 	as
amended by 	this 	agreement.
The 	only relevant provision 	in Article 	10 	added by the 	new
MOU concerns APC's 	right 	to 	file grievances 	in its 	own name.
Section 	10.I.e provides:
The 	term 	"grievant" 	as 	used 	in this Article
may refer 	to the Union when alleging 	a
grievance on behalf 	of 	itself, 	or on behalf
of 	a unit member or group of unit members.
The Union 	shall 	not 	grieve on behalf 	of 	unit
members 	who 	do not 	wish to pursue 	individual
grievances.
The 	Grievances
During the hiatus or 	"gap" 	between MOUs, 	three grievances
were 	filed on behalf 	of unit 	employees. 	These 	are 	referred to 	in
the 	record as 	the 	"gap grievances."
Grievance No. 	4-95-006: 	Although the exact 	date 	this
grievance was 	filed is not 	clear 	in the 	record, 	it 	is undisputed
that 	it 	was 	filed at 	CSU Fullerton 	sometime 	during the 	time 	no
MOU was 	in effect. 	The 	"grounds 	for grievance" 	statement
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attached to the original 	grievance 	states 	that 	"John Beisner, 	the
beneficiary of 	a 	long sequence 	of 	temporary appointments, 	since
sometime 	this 	summer 	has 	been performing Unit 	4 	bargaining unit
work while 	classified as 	an AOA and, 	most 	recently, 	as 	an
Administrator."
The 	grievance 	also 	stated that 	this 	assignment 	violated the
recognition 	clause 	and posting 	requirements 	for vacant 	positions
found 	in the MOU. 	As 	a 	remedy, 	the grievance appears 	to request
that 	CSU 	comply with posting 	requirements.
During the 	lower steps of 	the grievance procedure, 	CSU
rejected 	the 	grievance as 	not 	arbitrable because 	it was 	filed
when no MOU was 	in effect, 	as well 	as on other grounds. 	One of
the 	other grounds 	was 	that APC 	lacked 	standing 	to grieve
violations of Article 13 	(Appointments). 	Later, 	CSU added the
claim 	that 	APC 	had 	failed 	to 	invoke 	the American Arbitration
Association 	(AAA) 	procedure 	in a timely manner as 	required by the
MOU.
On July 19, 	1996, 	after APC pressed the matter to
arbitration, 	CSU reiterated 	its position 	that 	the matter was 	not
arbitrable 	because 	the 	grievance was 	filed when 	there was 	no MOU
in effect. 	CSU stated, 	moreover, 	that 	it had investigated the
matter 	and concluded that 	the 	grievance 	was 	based on 	events 	that
took place 	during the 	period between MOUs.
Grievance No. 	4-95-007: 	This grievance was 	filed at 	CSU
Fullerton on December 12, 	1995. 	I 	am unable to determine the
substance 	of 	this 	grievance 	from the grievance 	form itself, 	and
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no attached 	"grounds 	for grievance" 	exists. 	However, 	a Level 	III
response 	from CSU states 	that 	the 	grievance 	alleged CSU
has 	mis-classified the 	four graduate 	students
who provide 	academic 	advisement 	to 	students
in the Academic Advisement 	Office. 	The
positions 	should be 	re-classified 	from
Graduate Assistant 	to 	Student 	Services
Professional, 	represented by APC 	(Article I ) .
These 	students 	are doing Unit 	4 	bargaining
unit 	work. 	Increasing the number of 	student
assistants 	to do bargaining unit 	work
subsequent 	to a determination of 	a need 	for
implementing a 	layoff 	is 	a violation of
Article 	17. 	These 	student 	assistants 	should
have 	been 	terminated 	instead of 	laying 	off
Unit 4 employees 	(Article 33). 	Substantial
layoffs occurred in Unit 	4 	in 1991.
According to the Level 	III 	response, 	the 	remedy sought was 	a
posting of 	"SSP position(s)," 	reclassification of 	"GAs 	to SSP 	in
Academic Advisement," 	and recall 	of 	laid off Unit 	4 	employees.
The 	Level 	III 	response 	rejected the 	grievance 	on the merits
and denied APC's 	standing 	to grieve 	violations 	of Article 	17
(Assignment/Reassignment). 	Later, 	CSU took the position that APC
had 	failed 	to 	invoke 	the AAA procedures 	in 	a 	timely manner.
APC 	again pressed the matter to 	arbitration. 	On July 	19,
1996, 	CSU reiterated its position that 	the grievance was not
arbitrable because 	it 	was 	filed during a 	time no MOU was 	in
effect, 	and it 	was based on events 	that 	took place when no MOU
was 	in effect.
Grievance No. 	4-96-003: 	This grievance was 	filed at 	CSU
Pomona on January 4, 	1996. 	It alleged that 	the Pomona campus, 	at
the 	chancellor's 	direction, 	had not 	allowed certain Unit 	4
employees 	"to use 	extra days worked 	in advance 	to 	replace
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scheduled days 	of 	campus 	closure 	during the 	1995 	Christmas
closure when there were 	an 	insufficient 	number of 	holidays
scheduled to be observed during the 	closure." 	This 	action, 	the
grievance 	alleged, 	was 	contrary to 	an established practice 	at
Pomona.
The grievance, 	too, 	was 	rejected during the 	lower stages of
the 	grievance 	procedure 	on grounds 	similar 	to 	those 	raised 	in 	the
earlier grievances 	and APC 	sought 	arbitration. 	On August 	14,
1996, 	CSU again claimed the 	grievance was 	not 	arbitrable because
it 	was 	filed when no MOU was 	in effect 	and 	it 	was 	based on events
that 	took place when no MOU was 	in effect.
After the 	successor MOU took effect on May 14, 	1996, 	APC
filed a fourth grievance, 	on September 9, 	1996. 	This grievance,
known as 	the 	"statewide grievance," 	alleged that 	CSU's 	refusal 	to
arbitrate 	the gap grievances violated the MOU. 	The grievance was
ambiguous 	(it 	addressed only the 	Pomona 	grievance 	specifically
and 	referred to 	"other APC 	cases") 	and CSU responded accordingly,
but 	its position did not 	change.
APC 	filed the 	instant 	charge on September 20, 	1996. 	After
the parties participated 	in an 	informal 	conference with a 	PERB
administrative 	law judge, 	CSU modified its position. 	In a
December 20, 	1996, 	letter to APC, 	Employee Relations Specialist
Bruce 	Gibson 	stated 	that 	CSU was 	willing 	to 	arbitrate 	Grievance
Nos. 	4-95-006, 	4-95-007, 	and 4-96-003. 	In the letter, 	Mr. 	Gibson
agreed to 	select 	arbitrators 	for these 	cases 	"to decide 	the
arbitrability questions 	that 	have 	been 	raised 	(including but 	not
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limited to) 	the 	issue 	of whether events 	that 	occurred when no MOU
was 	in effect 	are 	arbitrable." 	As of 	the 	date of hearing, 	the
parties were 	in 	the process 	of 	selecting arbitrators 	through the
AAA.
Mr. 	Gibson conceded 	in his 	testimony that 	the 	statewide
grievance was not processed. 	In his view, 	the 	remedy requested
by APC 	had 	already been granted with 	CSU's 	decision 	to 	arbitrate
the gap grievances.
Mr. 	Gibson testified about 	the 	rationale 	for CSU's 	initial
stance 	in refusing to process 	the 	gap grievances. 	He 	said CSU
refused 	to 	submit 	the 	gap grievances 	to 	arbitration because 	the
case 	law under HEERA does 	not 	require 	an employer 	to 	arbitrate
grievances when there 	is 	no 	collective bargaining agreement 	in
effect 	at 	the 	time 	the grievances 	are 	filed. 	CSU believed that
nothing 	in 	section 	10.15 	of 	the 	new MOU altered 	that 	general
rule, 	Mr. 	Gibson testified. 	Moreover, 	Mr. 	Gibson said, 	a valid
"grievance," 	as 	that 	term is 	defined in section 10.1 of 	the MOU,
could not 	exist 	when 	there was 	no agreement 	in effect.
ISSUE
Whether 	CSU unilaterally changed 	the 	practice 	under which 	it
processed grievances 	to 	arbitration without 	giving APC 	notice 	and
an opportunity 	to 	negotiate?
CONCLUSIONS 	OF LAW
The 	theory of APC's 	case 	is one of unilateral 	change 	in
processing grievances 	to arbitration. 	APC argues 	that 	CSU's
refusal 	to process 	the 	gap grievances 	to 	arbitration 	constituted
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a unilateral 	change 	in the 	grievance 	and arbitration procedure
and had the 	effect 	of 	repudiating certain provisions 	in 	the MOU.
APC 	also 	contends 	that 	CSU changed 	its 	grievance 	processing
procedures by creating a host 	of 	other procedural 	issues. 	Among
these 	are 	CSU's 	denial 	of 	the 	grievances 	on grounds 	that APC had
no 	standing to grieve 	designated articles 	in the MOU, 	CSU's
failure 	to respond to APC's 	list 	of proposed arbitrators, 	and
CSU's 	contention that APC 	had not 	invoked AAA procedures 	in 	a
timely manner.
In addition, 	APC argues 	that 	CSU has 	flatly refused to
process 	the 	so-called statewide grievance. 	This 	refusal, 	APC
argues, 	deviated 	from established grievance 	processing procedures
and thus 	repudiated the MOU.
In response, 	CSU first 	argues 	that 	it 	had no duty to
arbitrate 	the 	gap grievances 	because 	they were 	filed when no
agreement 	was 	in effect 	and 	they were 	based on 	events 	that 	took
place when no agreement 	was 	in effect. 	CSU next 	argues 	that 	this
charge presents 	a mere 	arbitrability dispute 	under 	the 	collective
bargaining 	agreement 	and 	"the 	unfair practice procedure 	does 	not
exist 	to 	simply cure 	contractual breaches." 	Lastly, 	CSU argues
that 	this 	matter belongs 	before 	an arbitrator or a 	court 	pursuant
to section 3589.3
3HEERA, 	section 3589 	states 	in relevant part:
(b) 	Where a party to a memorandum of
understanding 	is 	aggrieved by the 	failure,
neglect, 	or refusal 	of 	the other party to
proceed 	to 	arbitration pursuant 	to 	the
procedures 	provided 	therefor 	in 	the
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An 	employer's 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment within the 	scope of 	representation is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate 	and violative of 	section
3571(c). 	(Regents of the University of California 	(1985) 	PERB
Decision No. 	520-H; 	Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51 	(Pajaro Valley).)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that 	(1)
the 	employer breached or 	altered 	the 	party's written 	agreement 	or
own established past practice; 	(2) 	such action was 	taken without
giving 	the 	exclusive 	representative 	notice 	or 	an 	opportunity 	to
bargain over the change; 	(3) 	the 	change 	is not merely an isolated
breach of 	the 	contract, 	but 	amounts 	to a change of policy 	(i.e.,
having a 	generalized 	effect 	or 	continuing 	impact 	upon bargaining
unit members' 	terms and conditions of employment); 	and 	(4) 	the
change 	in policy concerns 	a matter within 	the 	scope 	of
representation. 	(Grant 	Joint 	Union High School 	District 	(1982)
PERB Decision No. 	196 	(Grant); 	see also Pajaro Valley; 	Davis
Unified School District, 	et al. 	(1980) 	PERB Decision No. 	116.)
The 	actions 	taken by CSU 	in processing the 	grievances 	at
issue here do not meet 	the 	requirements 	of 	the Grant 	test. 	As
memorandum, 	the 	aggrieved party may bring
proceedings pursuant 	to Title 	9 	(commencing
with Section 1280) 	of 	Part 	3 	of 	the Code of
Civil 	Procedure 	for 	a 	court 	order directing
that 	the 	arbitration proceed pursuant 	to 	the
procedures 	provided 	therefor 	in 	such
memorandum of 	understanding.
11

explained below, 	the 	evidence 	cannot 	reasonably be 	construed as
amounting to 	a 	change 	in 	an 	established grievance 	and arbitration
procedure.
A past practice 	is 	one 	that 	is 	widely recognized as 	(1)
unequivocal; 	(2) 	clearly enunciated and acted upon; 	and 	(3)
readily ascertainable 	over a 	reasonable 	period of 	time 	as 	a 	fixed
and established practice 	accepted by both parties. 	(Hacienda
La Puente Unified School District 	(1997) 	PERB Decision No. 	1186,
adopting proposed decision of 	administrative 	law 	judge 	at 	20 	PERC
Para. 	27116, 	p. 	359.) 	On another occasion, 	the Board observed
that 	a past practice 	is one 	that 	is 	"regular and consistent" 	or
"historic 	and accepted." 	(Pajaro Valley, 	at pp. 	6-10.)
The 	record evidence 	simply does 	not 	support 	the 	conclusion
that 	such a practice 	existed or 	that 	CSU's 	conduct 	changed any
practice. 	CSU's various 	responses 	to the gap grievances cannot
realistically be 	described as 	a 	change 	in grievance processing
procedures. 	Consistent with Mr. 	Gibson's 	testimony, 	they are
more 	accurately 	characterized 	as 	responses 	based on 	a 	considered
legal 	position 	that 	CSU had no 	duty 	to 	arbitrate 	the 	gap
grievances because 	they were 	filed when no MOU was 	in effect 	and
they were based on 	events 	that 	took place 	when no 	agreement 	was
in effect.4
4Given the 	evidence 	about 	these 	grievances 	in the 	record,
this position was 	certainly arguable. 	Even APC concedes 	in its
brief 	that 	a 	"colorable 	claim" 	existed that, 	prior to the
effective 	date 	of 	the 	successor MOU, 	CSU had no duty to 	arbitrate
the gap grievances.
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The 	right 	to 	file 	and arbitrate 	post-contract 	grievances 	is
not 	automatic. 	PERB 	has 	held that 	arbitration clauses 	do not
continue 	in effect 	after expiration of 	a 	collective 	bargaining
agreement except 	for disputes that: 	(1) 	involve facts and
occurrences that arose before expiration; 	(2) 	involve post-
expiration conduct 	that 	infringes 	on 	rights 	accrued or vested
under the agreement; 	or 	(3) 	under normal principles of contract
interpretation, 	survive expiration of 	the agreement. 	(State of
California 	(Department of Youth Authority) 	(1992) 	PERB Decision
No. 	962-S 	(Youth Authority).)
Therefore, 	it 	is by no means 	clear on this 	record that APC
had a 	right 	under Youth Authority to 	arbitrate 	the 	gap
grievances. 	However, 	this proposed decision does not 	address 	the
underlying arbitrability claims, 	for that 	issue 	is not before me.
Questions 	of 	arbitrability 	are 	expressly 	reserved 	for 	the
arbitrator under Article 	10. 	The 	complaint 	here 	accuses 	CSU of 	a
unilateral 	change 	in 	the way 	it 	processed the grievances. 	An
employer does 	not 	commit 	a unilateral 	change when 	it merely takes
a 	legal 	position contrary to 	that 	advanced by the union. 	(See
Hacienda La Puente Unified School District 	(1997) 	PERB Decision
No. 	1187, 	adopting proposed decision of 	administrative 	law judge
at 20 	PERC Para. 	27090, 	p. 	277 	(Hacienda La Puente).)
Further, 	evidence of 	an established practice 	that
specifically 	covered processing 	grievances 	when no 	MOU was 	in
effect 	is 	lacking. 	The main reference 	in the 	record to 	such a
practice 	is 	found 	in 	a declaration 	submitted by Edward 	Purcell,
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APC representative 	and chief negotiator, 	wherein he 	stated.5
No contract, 	or agreed upon contract
extension existed between 	the 	Parties 	for 	the
period June 30, 	1992 through May 1, 	1994.
During that period, 	CSU processed APC
grievances 	and 	arbitration 	requests 	as
provided 	for under 	the 	terms 	of 	the 	expired
contract. 	One 	example of 	this practice 	is
the grievance 	of 	Judith Peters 	(CSU Fresno)
which was processed 	in 	the 	Chancellor's
Office on December 3, 	1992 	and heard on 	its
merits 	in 	arbitration without 	arbitrability
challenge on June 17, 	1993.
This 	testimony does 	not 	establish a practice 	of 	grievance
processing when no MOU is 	in effect. 	The 	testimony cites 	only
one 	example, 	and there 	is no 	indication if 	any of 	the grievances
allegedly processed 	during 	the 	1992-94 	period 	fell 	within 	any of
the Youth Authority exceptions. 	Further, 	CSU produced a copy of
the 	Judith Peters grievance. 	It 	indicated the grievance was
filed on June 29, 	1992, 	prior to the expiration of the MOU.
In addition, 	arguments that CSU's 	challenge 	to APC's
standing 	to grieve 	certain articles, 	failure 	to 	respond to APC's
proposed list 	of 	arbitrators, 	and failure 	to invoke AAA
procedures 	are 	matters 	more 	appropriately 	resolved under 	the
agreement. 	While 	the Board has 	authority to 	interpret 	collective
bargaining agreements 	to determine 	if 	the Act 	has 	been violated,
not 	every contract 	breach violates 	the Act. 	As 	the 	Board has
observed:
. 	. 	. 	Such a breach must amount to a change
of policy, 	not merely a default 	in a
5Mr. 	Purcell 	also served as APC representative 	at 	the
hearing and was 	available 	for 	cross 	examination on 	the
declaration.
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contractual obligation, 	before 	it 	constitutes
a duty to bargain. 	This 	distinction 	is
crucial. 	A change 	in policy has, 	by
definition, 	a generalized effect or
continuing 	impact 	upon the 	terms 	and
conditions 	of 	employment 	of 	bargaining unit
members. 	On the other hand, 	when an employer
unilaterally breaches 	an 	agreement 	without
instituting 	a new policy of 	general
application or continuing effect, 	its
conduct, 	though remediable 	through the
courts or arbitration, 	does not violate 	the
Act. 	. 	. 	. 	[Grant, 	at p. 	9.]
The 	evidence 	does 	not 	show that 	CSU engaged 	in 	an ongoing
pattern of 	obstructing the 	grievance 	and arbitration procedure 	or
otherwise 	deviated 	from a well 	established practice 	for
processing grievances. 	The 	evidence 	shows 	only that 	CSU took
positions 	during 	the 	grievances 	contrary to 	those 	advanced by
APC. 	It 	bears 	repeating that 	an employer does not 	commit 	a
unilateral 	change 	and 	thus 	violate 	the Act 	solely by taking
positions 	that 	are 	contrary to 	those 	adopted by a union.
Therefore, 	it 	cannot be concluded that 	CSU has violated the
Act 	merely because 	it 	took 	contrary positions 	associated with
issues 	such as APC standing to grieve, 	selecting arbitrators, 	and
the like. 	If disputes in these areas exist, 	they are more
appropriately 	resolved under 	the 	procedures 	established 	in 	the
MOU. 	(See Hacienda La Puente; 	Baldwin Park Unified School
District 	(1979) 	PERB Decision No. 	92 	(Baldwin Park).)
The new MOU took effect 	on May 14, 	1996. 	Section 10.15
provided 	that 	"the 	processing 	of 	grievances 	filed 	and unresolved
prior 	to 	the 	effective date 	of 	this Agreement 	shall 	proceed under
the 	provisions 	of 	the 	grievance procedure 	as 	amended by this
15

Agreement." 	Initially, 	CSU remained 	fixed 	in 	its 	decision not 	to
arbitrate the gap grievances. 	On July 19, 	1996, 	it reiterated
its 	position with respect 	to 	the 	Fullerton grievances 	(Grievance
Nos. 	4-95-006 and 4-95-007). 	And on August 14, 	1996, 	it
reiterated 	its 	position with respect 	to 	the 	Pomona 	grievance
(Grievance No. 4-96-003) .
This unfair practice was 	filed on September 20, 	1996, 	and an
informal 	settlement 	conference 	followed. 	Shortly thereafter, 	on
December 20, 	1996, 	CSU agreed to submit 	the gap grievances 	to
arbitration. 	Presumably 	its 	decision to do 	so was 	based on
section 	10.15 	of 	the new MOU.
As 	I 	have determined earlier, 	CSU's 	conduct prior to May 14,
1996, 	was 	based on an arguable 	legal 	position adopted when no MOU
was 	in effect 	and did not 	constitute 	a unilateral 	change. 	CSU
held this 	position 	for 	several 	months 	after 	the 	new MOU became
effective 	in May 1996, 	before agreeing to arbitrate 	the
grievances. 	It was not until APC filed the 	instant 	charge 	that
CSU modified its position. 	However, 	this 	does not 	detract 	from
the 	conclusion 	reached earlier 	that 	CSU has 	committed 	no
unilateral 	change 	and there 	has 	been no HEERA violation.
Assuming 	for 	argument's 	sake 	that 	CSU had a 	duty to
arbitrate 	the grievances 	after the new MOU took effect, 	its
conduct 	after May 14, 	1996, 	may have caused some delay in
processing the grievances. 	However, 	delays 	in grievance
processing are not uncommon. 	More 	importantly, 	the 	complaint 	in
this 	case does not 	address 	the question of delay. 	It 	concerns
16

the 	allegation 	that 	CSU has 	unilaterally changed 	the 	practice
used to process 	and arbitrate 	grievances. 	As 	discussed above,
that 	has 	not 	happened. 	If 	anything, 	CSU has adopted a position
in line with the 	contractual 	requirements. 	All 	indications 	in
the 	record are 	that 	the 	grievances 	are being processed before 	an
arbitrator who will 	decide 	the 	arbitrability claims 	in accordance
with 	the 	procedure 	agreed to by the parties 	in 	section 	10.6.c 	of
the MOU. 	I 	decline 	to 	find a unilateral 	change on these 	facts.
APC 	raises 	essentially the 	same 	arguments 	with respect 	to
CSU's 	failure 	to 	respond and process 	the 	statewide 	grievance. 	At
the hearing, 	CSU dismissed this 	claim as 	involving a moot 	point
because 	it 	had already agreed to arbitrate 	the 	gap grievances.
Counsel 	for 	CSU characterized 	the 	statewide 	grievance 	as 	a
"grievance on a grievance" 	or a 	"piling on grievance."
It 	is 	true 	that 	outright 	failure 	of 	an employer to 	comply
with the 	steps 	in a negotiated grievance 	and arbitration
procedure may occur 	in ways 	that violate 	HEERA. 	(See 	e.g.,
Hacienda La Puente.) 	However, 	that has not occurred here.
The 	statewide grievance, 	filed on September 5, 	1996,
protests 	CSU's 	refusal 	to process 	the gap grievances 	to
arbitration. 	As a remedy, 	it 	asks that 	CSU 	"agree to arbitrate
all 	cases 	in question." 	The 	grievance was 	ambiguous 	and CSU
responded accordingly. 	However, 	even if 	CSU did not 	respond to
the 	grievance 	in 	the 	detail 	called 	for by the 	agreement 	and
preferred by APC, 	such conduct 	does not 	itself 	constitute 	a
unilateral 	change 	in established practice. 	It 	is 	a matter 	for
17

resolution under the 	agreement. 	(Hacienda La 	Puente; 	Baldwin
Park.)
In addition, 	it cannot be overlooked that, 	while CSU may-
have 	not 	responded appropriately, 	it 	summarily agreed to the
remedy demanded by APC in the grievance. 	In view of 	these 	facts,
it 	cannot 	seriously be argued that 	the 	failure 	to process 	the
statewide 	grievance 	further 	constituted a 	unilateral 	change 	that
runs 	afoul 	of 	CSU's duty to bargain under HEERA.
CONCLUSION
Based on the 	foregoing findings of 	fact, 	conclusions of 	law,
and the 	entire 	record herein, 	the 	complaint 	in Unfair 	Practice
Case No. 	LA-CE-465-H, 	Academic 	Professionals of 	California v.
California State University, 	is hereby dismissed.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
20 	days of 	service 	of 	this 	Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 p.m.) 	on the 	last day
set 	for filing 	". 	. 	. o r when 	sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
18

sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy served on 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs,
32300, 	32305 and 32140.)
FRED 	D'ORAZIO
Administrative 	Law 	Judge
19