Trustees of the California State University (Academic Professionals of California) (PERB 1243H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ACADEMIC 	PROFESSIONALS 	OF
CALIFORNIA,
Charging 	Party,
v.
TRUSTEES 	OF 	THE 	CALIFORNIA
STATE 	UNIVERSITY,
Respondent.
Case No. 	LA-CE-464-H
PERB Decision No. 	1243-H
December 22, 	1997
Appearances: 	Edward R. 	Purcell, 	Consultant, 	for Academic
Professionals of California; 	William G. 	Knight, 	University
Counsel, 	for Trustees 	of 	the California State University.
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Trustees 	of 	the California State University 	(CSU) 	to a
proposed decision by a PERB administrative 	law judge 	(ALJ). 	The
ALJ found that CSU violated section 3571(a), 	(b) 	and 	(c) 	of the
Higher Education Employer-Employee Relations Act 	(HEERA)1 by
H1HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	erwise 	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
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
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EERA
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unilaterally adopting 	and 	implementing 	an 	eligibility date 	for 	a
one-time 	cash payment 	to 	employees 	represented by 	the Academic
Professionals of California 	(APC).
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the proposed decision and 	the 	filings 	of 	the parties.
The 	Board hereby 	reverses 	the ALJ's 	proposed decision and
dismisses 	the unfair practice 	charge and 	complaint 	in 	this 	case
consistent 	with 	the 	following 	discussion.
BACKGROUND
APC 	is 	the exclusive 	representative of Unit 	4, 	Academic
Support within 	the 	CSU system. 	CSU and APC are parties 	to a
collective bargaining agreement 	(CBA) 	which expired on July 	1,
1995. 	The parties 	reached a 	tentative agreement 	on a successor
CBA on or about March 18, 	1996. 	The 	tentative agreement provided
that 	"on or before June 30, 	1996, 	full 	time unit employees active
as 	of April 	1, 	1996 	shall be provided with a cash payment as 	soon
as possible 	in the amount of 	$615." 	Also, 	the tentative
agreement 	provided 	that 	"this 	proposed settlement 	is 	contingent
upon ratification by the APC, 	no later than March 31, 	1996."
CSU believed 	that 	the 	parties 	had agreed during
negotiations 	that 	the April 	1 	eligibility date 	for the one-time
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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cash payment 	was 	tied 	to 	the anticipated 	ratification of 	the
agreement by APC no 	later than March 31. 	APC did not 	ratify the
agreement until April 	9. 	Consequently, 	CSU planned to utilize
April 	9 	as 	the 	eligibility date 	for the 	one-time 	cash payment.
On April 	24, 	1996, 	CSU sent to its personnel and payroll 	staff
statewide 	a 	"Technical 	Letter" 	concerning 	implementation 	of 	the
agreement, 	which included April 	9 	as 	the 	eligibility date. 	On
May 3, 	1996, 	CSU sent a memorandum to all Unit 4 	employees
referencing April 	9 	as 	the 	cash payment 	eligibility date. 	The
memorandum noted 	that 	ratification 	of 	the 	agreement 	by CSU was
required before 	any 	increase 	could be 	effective. 	CSU ratified
the agreement 	on May 14, 	1996. 	The 	ratified agreement 	included
the provision which was 	in 	the 	tentative 	agreement 	establishing
April 	1 as 	the one-time 	cash payment 	eligibility date. 	There 	is
no 	evidence 	that 	CSU ratified an agreement 	which 	included an
eligibility date 	other than April 	1.
On May 29, 	1996, 	APC filed a grievance 	challenging the
April 	9 	eligibility date. 	During the grievance process, 	APC
indicated 	that 	the matter would be 	resolved 	if 	CSU paid 	the
one-time 	cash payment 	to any employee 	hired between April 	1 	and
April 	9. 	CSU agreed and began 	implementation. 	APC 	subsequently
realized 	that 	its 	proposed 	resolution 	should have 	indicated 	that
employees who 	left 	the bargaining unit between April 	1 	and
April 	9 	would receive 	the 	lump 	sum payment. 	CSU declined to 	take
any other action. 	The grievance did not proceed to arbitration.
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CSU used 	the April 	9 	eligibility date 	in 	implementing 	the
one-time payment. 	As a result, 	one employee who was 	in the
bargaining unit 	on April 	1, 	but who had left 	the unit by April 	9,
did not 	receive the payment. 	On the other hand, 	three employees
who were not 	in the bargaining unit 	on April 	1, 	but who had
entered the unit by April 	9, 	received the payment. 	All 	other
unit members were unaffected by the 	change 	in 	the 	eligibility
date 	and 	received 	the payment.
On August 27, 	1996, 	APC filed an unfair practice charge
alleging 	that 	CSU unilaterally 	changed 	the 	one-time 	cash payment
eligibility date 	in violation of 	the HEERA. 	The 	office 	of 	the
General 	Counsel 	of 	PERB 	issued a complaint on October 11, 	1996,
which CSU answered on October 25, 	1996. 	A PERB-conducted
settlement 	conference 	failed to 	resolve 	the dispute, 	and a 	formal
hearing was 	conducted on March 18, 	1997.
ISSUE
Did CSU breach 	its 	obligation to negotiate 	in good 	faith, 	in
violation of 	the HEERA, 	when it adopted April 	9 	as 	the
eligibility date 	for 	the 	one-time 	cash payment made pursuant 	to
the parties' 	CBA?
DISCUSSION
To prevail 	in a unilateral 	change 	case, 	the 	charging party
must 	establish that: 	(1) 	the employer breached or altered the
parties' 	written agreement or established past practice; 	(2) 	the
employer 	took 	the 	action without 	giving 	the 	exclusive
representative notice or an opportunity to bargain; 	(3) 	the
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change 	has 	a generalized effect 	or 	continuing 	impact 	on
bargaining unit members' 	terms and conditions 	of employment; 	and
(4) 	the 	change 	concerns a matter within the scope of
representation. 	(Grant Joint Union High School District 	(1982)
PERB Decision No. 	196 	(Grant); 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51; 	Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116.)
There appears 	to be no dispute between the parties 	that 	the
one-time 	cash payment was 	required by and made pursuant 	to 	their
agreement.2 APC 	asserts 	that 	CSU breached or 	repudiated 	that
agreement 	and unilaterally 	changed 	the 	eligibility date 	of 	the
payment 	in violation of 	the HEERA. 	CSU responds 	that 	it acted in
accordance with the 	intent 	of 	the parties' 	agreement.
Accordingly, 	the 	complaint 	issued in this 	case 	indicates 	that 	the
alleged change was to 	". 	. 	. 	Respondent's policy concerning the
payment 	of 	$615 	to 	full-time employees, 	as provided by Section
23.18 	of 	Respondent's 	agreement 	with Charging 	Party."
CSU responds 	to 	the 	complaint by arguing 	that 	this 	case
involves 	an alleged, 	isolated breach of 	the CBA, 	and PERB has no
authority to 	resolve disputes between 	the parties 	involving 	the
interpretation of 	their contracts. 	CSU asserts 	that 	its 	conduct
does 	not 	involve a policy change 	having a generalized effect 	or
continuing 	impact 	on bargaining unit members 	under Grant 	since
2The dispute 	only arises 	if 	the parties 	have an agreement 	to
make 	the payment. 	As 	CSU pointed out 	to all Unit 	4 	employees 	in
its May 3, 	1996, 	memorandum 	"no pay increase will 	take effect
until 	and unless 	the 	tentative agreement 	is 	ratified by 	the 	[CSU]
Trustees."
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"use 	of 	the April 	9 	date adversely affected only one 	terminated
employee."
APC argues 	that 	CSU's 	change 	in the 	eligibility date was
directed at an entire class 	of 	employees 	- 	bargaining unit
members. 	Therefore, 	under Grant 	it 	should be 	considered to have
had a 	generalized 	effect 	despite 	the 	fact 	that 	apparently 	only
one 	employee was denied the 	one-time 	cash payment 	as 	a 	result 	of
the 	change. 	APC notes 	that 	the Board has 	found a generalized
effect 	or 	continuing 	impact 	in a 	case 	involving a unilateral
change affecting as 	few as 	two employees. 	(Hacienda La 	Puente
Unified School District 	(1997) 	PERB Decision No. 	1186 	(Hacienda
La 	Puente).)
Initially, 	the Board must address 	itself 	to 	the question of
whether 	CSU's 	alleged breach of 	the 	CBA also 	constitutes 	an
unfair practice under HEERA. 	HEERA section 3563.2(b) 	states:
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.
In Grant, 	the 	Board discussed this 	statutory limit 	on 	its
authority 	to 	enforce 	agreements 	between parties.3 The 	Board
observed:
This 	is not 	to 	say that 	every breach of
contract also violates 	the Act. 	Such a
breach must amount 	to a change of policy, 	not
3Grant 	was 	a 	case decided under 	the 	Educational 	Employment
Relations' Act 	(EERA or Act). 	(EERA is codified at Government
Code 	section 3540 	et 	seq.) 	EERA section 3541.5(b) 	contains
language nearly identical 	to that 	of HEERA section 3563.2(b).
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merely a default 	in a 	contractual 	obligation,
before 	it 	constitutes 	a violation of 	the 	duty
to bargain. 	This distinction is 	crucial. 	A
change of 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.
Thus, 	an alleged contract breach must 	also 	constitute a 	change 	in
policy having 	a 	generalized 	effect 	or 	continuing 	impact 	on 	the
terms 	and 	conditions 	of 	employment 	of 	bargaining unit members
before 	PERB 	can 	find 	it 	to be a violation of 	the HEERA duty 	to
bargain.
One 	allegation 	considered by 	the 	Board 	in Grant 	involved a
contingency pay provision of 	the parties' 	contract. 	The
provision 	called 	for 	the parties 	to 	review 	income 	and
expenditures 	of 	the 	employer on or about 	a 	specified date 	to
determine 	if 	additional 	funds were available 	for one-time
payments 	to employees. 	The provision set various parameters
governing 	the 	income and expenditure 	review process. 	The
employer 	conducted 	the 	review and 	concluded 	that 	a 	specific
amount 	of 	funds was available 	for distribution to employees. 	The
charging party alleged 	that 	the 	employer unilaterally 	changed 	the
contractual 	parameters 	governing 	the 	review process 	with 	the
result 	that 	fewer 	funds 	were 	available 	for distribution 	to
employees. 	The Board dismissed the allegation, 	finding that 	it
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involved 	a 	contract 	dispute 	and did not 	constitute 	a unilateral
change 	in policy. 	The Board stated:
. 	. 	. 	the facts asserted by the Association
actually 	challenge 	the 	District's 	application
of 	the 	contract's provision. 	The District
does 	not 	deny 	its 	contractual 	obligation but
claims 	it 	properly 	implemented 	the provision
both as 	to 	the use and the amount 	of 	the
surplus 	funds. 	We 	find,in these 	competing
claims 	nothing which demonstrates 	a 	'policy
change.'
The 	circumstances presented by 	the 	instant 	case 	are
analogous 	to 	those 	presented by 	the 	contingency pay allegation 	in
Grant. 	CSU does 	not 	deny 	its 	contractual 	obligation to make a
$615 	one-time 	cash payment 	to bargaining unit members. 	CSU
claims 	that 	it 	properly 	implemented the provision 	in accordance
with the agreement. 	That 	claim is what APC disputes. 	This 	case
does 	not 	involve a policy change, 	but 	a disagreement 	over
implementation 	of 	a 	contractual 	provision 	involving 	the
eligibility date 	agreed 	to by 	the parties.
Further, 	the 	facts 	of 	this 	case demonstrate 	that 	the alleged
change has 	no generalized effect 	or 	continuing 	impact 	on 	the
terms 	and conditions 	of 	employment 	of bargaining unit members.
The payment 	was 	one-time 	only and had no 	impact 	on 	the 	retirement
or ongoing 	compensation of 	employees. 	CSU made 	the payment 	to
all bargaining unit members, 	and the only apparent 	effect 	of 	the
eligibility date 	change was 	that 	one 	employee who 	left 	the
bargaining unit between April 	l 	and April 	9 	did not 	receive 	the
payment. 	This 	can hardly be 	characterized as a generalized
effect.
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APC's 	citation of Hacienda La 	Puente 	is misplaced. 	In 	that
case, 	the Board rejected the 	employer's 	argument 	that 	its
unilateral 	change 	in the 	shift 	of 	a bargaining unit member
represented nothing more 	than a possible 	isolated breach 	of 	the
parties' 	contract. 	The Board concluded that 	the employer's
action constituted a 	change 	in policy, 	based on the 	employer's
belief 	that 	it 	had the 	contractual 	right 	to make 	shift 	changes.
Therefore, 	the 	conduct had the generalized effect 	of 	exposing
other bargaining unit members 	to 	such shift 	changes. 	In the
instant 	case, 	there has been no showing of a change 	in policy by
CSU, 	or of 	any generalized effect 	or 	continuing 	impact 	resulting
from the 	eligibility date 	change.
The Board concludes 	that 	the 	dispute 	in this 	case 	involves
an alleged 	contract 	breach which does 	not 	constitute 	a 	change 	in
policy having 	a 	generalized 	effect 	or 	continuing 	impact 	on
bargaining unit members' 	terms and conditions 	of 	employment„ 	The
Board's 	standard 	for 	demonstrating 	an unlawful 	unilateral 	change
has not been met and, 	therefore, 	the 	charge and complaint must be
dismissed.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-464-H are DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Jackson joined 	in 	this 	Decision.
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