Trustees of the California State University (PERB 1470H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA FACULTY ASSOCIATION,

Charging Party, Case No. LA-CE-609-H
PERB Decision No. 1470-H
December 5, 2001

TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY

Respondent.

Appearances: Rothner, Segall & Greenstone by Glenn Rothner, Attorney, for California
Faculty Association; Janette Redd Williams, University Counsel, for Trustees of the California
State University.
Before Amador, Baker and Whitehead, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Faculty Association (CFA) of a Board agent's
dismissal (attached) of its unfair practice charge. The charge alleged that the Trustees of the
California State University (CSU) made a unilateral change when it implemented a pay
increase for employees under the provisions of a collective bargaining agreement (CBA) then
being bargained for in reopener negotiations. CFA claimed that this action constituted a
violation of the Higher Education Employer-Employee Relations Act (HEERA) section 3571

(b), (c) and (e).!

'HEERA is codified at Government Code section 3560 et seq. Section 3571(b), (c) and
(e) provide:

It shall be unlawful for the higher education employer to do any of the
following:

The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges and their attachments, the warning and dismissal letters,
CFA's appeal2 and CSU's response. The Board finds the Board agent's dismissal letter to be
free from prejudicial error and adopts it as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-609-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Baker joined in this Decision.
(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.
( e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).
2CFA raises for the first time on appeal the claim that CSU interfered with its protected
rights and derogated its authority by misrepresenting that the salary increase conformed with
the CBA. A charging party may not, without good cause, present new evidence or new
allegations on appeal. (PERB Regulation 32635(b ); Peralta Community College District
(2001) PERB Decision No. 1418; Regents of the University of California (1998) PERB
Decision No. 1271.) No good cause having been shown for CF A's failure to raise this claim
before the Board agent, the Board will not address the merits of this new charge.
2

STA
TE
OF
CALIFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
.~
'f
~
\
'
~
San Francisco Regional Office
1515
Clay
Street,
Suite 2201
Oakland, CA
9461
2
(510)
622-1016
~
o,,.
c.u.1f
June
	29,
	2001
Edward
	Purcell
California
	Faculty Association
5933
	W.
	Century
Los
	Angeles,
	CA
	90045
Re:	
DISMISSAL
	OF
	CHARGE/REFUSAL
	TO
	ISSUE
	COMPLAINT
California
	Faculty Association
	v.
	The
	Trustees 	of 	the
University
	of
	California
Unfair
	Practice
	Charge
	No. 	LA-CE-609-H;
	First
	Amended
	Charge
Dear
	Mr.
	Purcell:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	February 	14,
2001,
	alleges 	the 	Trustees 	of 	the 	California 	State 	University
(University)
	unilaterally
	implemented
	a
	pay
	increase 	for
employees.
	The
	California 	Faculty Association 	(Association
	or
CFA)
	alleges
	this
	conduct
	violates
	Government
	Code
	section
	3571
(b),
	(c)
	and
	(e)
	of 	the
	Higher 	Education
	Employer-Employee
Relations
	Act
	(HEERA
	or Act).
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	May
	21, 	2001,
that
	the 	above-referenced 	charge 	did 	not
	state
	a
	prima
	facie
case.
	You
	were
	advised
	that,
	if
	there
	were 	any
	factualinaccuracies 	or 	additional 	facts
	which 	would
	correct
	the
deficiencies
	explained 	in 	that
	letter,
	you
	should
	amend
	thecharge.
	You
	were
	further
	advised
	that,
	unless
	you
	amended
	the
charge
	to
	state
	a
	prima
	facie
	case 	or
	withdrew
	it
	prior 	to
	May
28, 	2001,
	the 	charge
	would 	be
	dismissed.
	I
	later
	extended
	this
deadline 	to
	June 	4, 	2001.
On
	June 	4, 	2001, 	Charging
	Party 	filed
	a
	first
	amended
	charge.
The 	amended
	charge
	reiterates 	facts 	in 	the
	original
	charge 	andadds
	the 	following 	legal
	argument. 	Charging
	Party 	asserts
	my
reliance
	on
	Trustees 	of 	the 	California 	State 	University
	(1996)
PERB
	Decision
	No. 	1174-H
	is
	misplaced, 	arguing 	that 	the
	partiesherein 	did 	not 	have
	a
	specific
	agreement 	as 	to 	the
	amount
	of
money
	to
	be 	spent 	or
	how
	such
	moneys 	were
	to
	be
	dispersed. 	Insupport 	of 	this 	contention, 	Charging 	Party 	adds 	the 	following.
Charging 	Party 	states 	the 	amount 	of
	money
	to 	be 	spent 	on
compensation 	packages 	for 	the 	2000-2001 	year 	was
	clearly 	part 	of
the 	parties' 	reopener 	negotiations.
	To
	that 	end, 	Charging 	Party
points 	to 	the 	Factfinders 	Report 	which 	states 	that 	the 	total

Dismissal
	Letter
LA-CE-609-H
Page
	2
amount
	of
	compensation
	is
	open
	for 	negotiation. 	Additionally,
Charging
	Party
	asserts
	the
	June
	4, 	1999,
	agreement 	does
	not
specify
	how
	the
	moneys
	are
	to
	be
	distributed. 	Specifically,
Charging
	Party
	states:
The
	June
	4
	Memorandum
	of
	Understanding
	did
not
	establish
	the
	actual
	dollar
	or
	percentage
value 	of 	the
	2000
	settlement, 	leaving 	both
topics 	to
	be
	negotiated
	subsequently.
Assuming
	Charging
	Party's 	facts
	as
	true,
	however,
	does
	not
	lead
to 	the 	conclusion
	that
	the 	University
	unilaterally
	implemented
the
	salary 	increase. 	Instead,
	such
	facts
	merely
	support
	the
holding
	in
	Trustees
	and
	the
	rationale
	of
	my
	May
	21, 	2001,
	letter.
The
	University
	and
	the 	Association 	are
	parties
	to
	a
	collective
bargaining
	agreement
	(Agreement) 	which
	expires
	on
	June
	31,
	2001.
Additionally, 	the
	parties
	have
	signed
	a
	memorandum
	of
understanding, 	dated
	June 	4, 	1999, 	(June 	4, 	1999,
	agreement)
dealing 	with
	salary
	increases 	for
	the
	2000-2001
	fiscal
	year.
Article
	3.1 	of 	the
	Agreement
	states
	the 	following 	as
	a
contractual 	zipper 	clause:
This
	Agreement
	constitutes
	the
	entire
Agreement
	of 	the 	Trustees
	and
	the
	CFA~
arrived 	at
	as
	a
	result
	of
	meeting 	and
conferring.
	The
	terms
	and
	conditions
	may
	be
altered,
	changed, 	added
	to, 	deleted
	from,
	ormodified 	only 	through 	the 	voluntary
	and
mutual 	consent 	of 	the
	parties 	in
	an
	expressed
written
	amendment
	to 	the
	Agreement.
	This
Agreement
	supersedes
	all
	previous 	agreements,
understandings,
	policies,
	and
	prior 	practices
directly 	related 	to 	matters 	included 	within
this
	Agreement.
The
	June 	4, 	1999,
	memorandum
	of 	understanding
	states 	in 	relevantpart:
Fiscal
	Year 	2000/2001
	Increases
If
	the 	final 	gross 	general
	fund 	budget 	of 	the
CSU
	has 	increased
	by
	at 	least
	$180
	million(including 	both 	general
	fund 	and
	student 	fee
revenue) 	from
	fiscal 	year 	1999/2000
	to 	fiscalyear 	2000/01, 	then 	the 	total
	compensation
increases 	to 	faculty 	unit
	employees
	shall
	be
distributed 	as 	follows:
	(a)
	forty 	percent
(40%)
	of 	the 	increases 	shall 	be 	for 	faculty
merit 	increases, 	including 	those 	for 	SSI-

Dismissal
	Letter
LA-CE-609-H
Page
	3
eligible
	employees, 	and
	(b)
	the
	remaining
sixty
	percent
	(60%)
	shall
	be
	for
	the
	general
salary
	increase.
	If
	the 	increase
	in
	the
final
	gross 	general
	fund 	budget
	is
	less
	than
$180
	million,
	then
	the
	parties 	shall
	give
priority
	to
	funding
	a
	service
	salaryincrease,
	and
	shall
	reopen
	negotiations
solely
	on
	the
	amount
	and
	distribution
	of 	the
general
	salary
	and
	merit
	salary 	increases.
The
	CSU
	Board
	of 	Trustees
	shall
	adopt
	a
budget
	request
	that 	will
	fund
	at 	least
	a
	6%
salary
	increase 	for 	the 	faculty.
	The
	amount
of
	this
	request
	will
	be
	62.
4
	million
	as_$_uming
a
	6%
	salary
	increase
	in 	fiscal
	year
	-
1999/2000. 	This
	amount
	may
	change
	due
	toretirement
	adjustments
	in
	the
	compensation
base.
	If
	the
	salary
	increase
	is
	less
	than
	6%
in
	fiscal
	year
	1999/2000
	this
	number
	will
	be
adjusted proportionately.
	Compensation
	will
be
	the 	highest
	priority
	for 	requests
	in 	the
Trustees'
	budget
	after
	recurring 	costs
	and
enrollment.
It
	is
	undisputed
	that
	the
	University's
	budget
	for
	2000-2001
increased
	by
	at 	least
	$180
	million.
The
	Agreement
	also
	provides 	the 	University
	with
	guidelines
	on
	how
the
	SSI
	funds
	are 	to
	be
	calculated
	and
	distributed.
	With
	regardto
	SSI
	calculation,
	the
	Agreement
	states:
31.43:
	As
	part
	of 	the
	CSU
	merit
	program
	in
fiscal
	years
	1999/2000 	and 	2000/01,
	there
shall
	be
	a
	separate
	pool 	for 	bargaining
	unit
members
	eligible
	for 	Service 	Salary 	Step
Increases.
	It
	shall
	be
	calculated
	by
multiplying 	the
	total 	salary
	and
	benefits 	ofsuch 	employees 	by 	two 	and
	sixty-five
	one-
hundredths 	percent 	(2.65). 	This
	provision
shall
	not
	be
	subject 	to 	renegotiation 	during
reopener 	bargaining,
	if
	any,
	in 	these 	years.
In 	January 	2001,
	the 	University 	informed 	bargaining 	unit
	members
that 	they
	would 	be 	receiving
	a
	pay
	raise 	in
	conformance 	w{th 	theJune 	4, 	1999, 	agreement 	and
	Article
	31.43 	of 	the 	Agreement.
Charging 	Party 	asserts 	the 	University 	implemented
	a
	unilateral
change 	when
	it
	implemented 	the 	terms 	of 	the 	June 	4, 	1999,memorandum. 	However, 	as 	stated 	in
	my May 	21, 	2001,
	letter, 	the
University's 	actions 	do 	not 	violate 	the
	HEERA.

Dismissal
	Letter
LA-CE-609-H
Page
	4
Charging
	Party
	alleges
	the
	University
	committed
	a
	unilateral
change
	when
	it
	implemented
	provisions 	of 	the
	June
	4, 	1999,
agreement,
	which 	had 	been 	an
	issue 	in
	reopener
	negotiations.
	As
noted
	above,
	PERB's
	holding
	in 	Trustees, 	serves 	as
	clear
precedent
	in
	such
	cases.
In
	Trustees, 	supra, 	the
	Board
	held
	that
	reopened
	provisions
	were
not
	effectively
	terminated
	by
	reopening, 	but
	rather 	status
	quo
prevailed
	where
	the
	parties
	had
	previously
	agreed
	that
	the
contract
	terms
	could 	not
	be
	deleted
	except
	by mutual
	consent.
	In
that
	case,
	the 	University
	and
	the
	Academic
	Professionals 	of
California
	had 	been
	engaged
	in
	reopener
	negotiations
	over
	severalissues, 	including 	the 	employer's
	contribution
	to
	health
	benefits
and
	contracting 	out. 	After
	completing 	mediation
	and
	factfinding,
the
	parties
	remained
	at
	impasse.
	The
	union 	then 	contended
	the
reopened
	articles
	were
	no
	longer
	operative,
	and
	as 	such,
	the
union
	was
	not
	bound 	by
	the
	contracting
	out 	language.
	The
University
	argued,
	however,
	that 	status
	quo
	prevailed,
	and
	as
such,
	the
	parties
	were 	bound
	both
	by
	the 	contracting
	out
provisions
	and
	the 	health 	contribution
	requirements
	in
	the
agreement,
	as
	no
	new
	agreement 	had
	been
	reached.
In 	dismissing 	the 	union's
	claim 	of
	unilateral
	change,
	theAdministrative
	Law
	Judge
	noted
	that
	the
	parties
	made 	a
	clear
statement, 	through
	their
	zipper 	clause,
	that
	the 	provisions 	of
their
	contract
	could 	not
	be 	changed
	without 	voluntary,
	mutual
consent.
	As
	such,
	the
	ALJ
	stated:
Since
	I
	conclude
	that
	the
	parties
	previously
had
	agreed
	that 	contract
	terms 	could 	not
	be
deleted
	except
	by mutual
	consent,
	I
	reject
the
	argument
	that
	the 	clauses
	were
	terminated
by
	the 	reopening.
	The
	clauses
	remained
	in
effect
	and
	the
	University.
	made 	no
change
	in
	a
	negotiable 	subject.
Facts 	herein 	are 	nearly 	identical 	to 	those 	in 	Trustees. 	Charging
Party
	and
	the 	University 	are
	parties 	to
	a
	collective 	bargaining
agreement 	which
	includes
	a
	zipper 	clause 	identical 	in
	terms
	to
the
	one 	found
	in 	Trustees, 	supra. 	Additionally, 	the
	parties
	had
completed 	impasse 	procedures
	and 	had 	reached
	a
	stalemate 	in 	post-
factfinding 	negotiations.
	As
	in 	Trustees, 	the 	University 	then
implemented
	the 	terms 	and
	conditions 	of 	the 	June 	4, 	1999,memorandum
	of 	understanding
	by
	issuing
	pay 	increases 	and
	merit
salary 	increases 	pursuant 	to 	the 	agreed-upon 	contractual
provisions.
	The
	University's 	reinstatement 	of 	reopened 	clausesdid 	not 	constitute
	a
	unilateral
	change, 	but 	merely 	as 	assertionthat 	the 	status
	quo 	between 	the 	parties 	remained 	in 	effect.(Trustees 	of 	the 	California 	State 	University
	(1996) 	PERB
	DecisionNo. 	1174-H,
	p.l.)

Dismissal
	Letter
LA-CE-609-H
Page
	5
Charging
	Party
	contends
	the
	parties
	did
	not 	agree
	on
	an
	actual
dollar
	amount
	or
	percentage 	value
	for
	the
	2000-2001
	year.
However,
	such
	facts
	do
	not
	render 	the
	University's 	actions
unlawful.
	As
	in
	Trustees,
	the
	parties
	were
	negotiating
	reopeners
and
	as
	such
	were
	in
	the 	process 	of 	attempting 	to 	increase
	the
value 	of
	some
	benefits.
	The
	mere
	fact
	that
	the
	parties
	did 	notreach
	an 	agreement
	did
	not
	render 	the
	reopened
	contractprovisions
	null
	and
	void. 	Trustees
	does
	not
	stand
	for 	the
position 	that
	the 	University
	is
	no
	longer 	obligated 	to 	continue
negotiating
	the
	total
	dollar
	value 	of 	the
	salary 	increases.
Indeed, 	as
	stated
	in
	my May
	21, 	2001,
	letter,
	the
	parties 	are
free 	to
	agree
	to
	higher
	salary
	increases
	during 	reopeners.
However,
	the
	failure
	to
	reach
	an 	agreement 	does
	not
	repudiate
	the
terms
	and
	conditions 	already
	agreed
	upon
	by
	the
	parties.
	The
June 	4,
	1999,
	memorandum,
	clearly sets 	forth
	the
	actions 	theUniversity
	must
	take
	if
	the
	budget
	is
	over
	180
	million.
Moreover,
	the
	memorandum
	clearly
	requires
	the 	University
	to
	seek
at 	least
	a
	6%
	salary
	increase.
	It
	appears 	the
	University'sactions 	are
	consistent
	with 	the
	memorandum,
	and
	as 	such,
	theUniversity 	did 	not
	violate
	the
	HEERA.
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.
	(Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	Any
	document
	filed
	with 	the
	Board 	must
	contain
the 	case
	name
	and 	number, 	and
	the
	original
	and
	five
	(5)
	copies
	of
all
	documents 	must 	be
	provided
	to 	the
	Board.
A
document
	is
	considered 	"filed"
	when
	actually
	received
	beforethe 	close 	of 	business
	(5
	p.m.) 	on
	the
	last
	day
	set 	for
	filing
	or
when
	mailed
	by
	certified
	or
	Express 	United
	States
	mail, 	as
	shownon
	the 	postal 	receipt 	or
	postmark,
	or 	delivered 	to
	a 	common
carrier
	promising 	overnight 	delivery, 	as
	shown 	on
	the
	carrier's
receipt,
	not
	later
	than 	the
	last
	day
	set 	for 	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec. 	32135(a); 	see 	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is 	also 	considered 	"filed"
	when
	received
	by
	facsimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	forfiling 	together 	with
	a
	Facsimile 	Transmission 	Cover 	Sheet 	whichmeets 	the 	requirements 	of 	Cal.
	Code
	Regs.,
	tit.
	8,
	sec. 	32135(d),
provided 	the
	filing 	party 	also 	places 	the 	original, 	together 	with
the 	required
	number
	of 	copies 	and 	proof 	of 	service, 	in 	the 	U.S.
mail. 	(Cal. 	Code. 	Regs.,
	tit.
	8, 	secs.
	32135 (b),
	(c) 	and	
(d)
;
see 	also 	Cal. 	Code 	Regs.,
	tit.
	8, 	secs.
	32090 	and 	32130.)
The 	Board's 	address 	is:

Dismissal
	Letter
LA-CE-609-H
Page
	6
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174
FAX:
	(916)
	327-7960
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
	(20)
	calendar
days
	following
	the 	date
	of
	service
	of
	the
	appeal.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec.
	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
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32140
	for
	the 	required 	contents
	and
	a
	sample 	form.) 	Thedocument
	will
	be
	considered 	properly
	"served"
	when
	personallydelivered 	or 	deposited
	in
	the
	first-class
	mail, 	postage
	paid
	and
properly 	addressed.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently 	served
	via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
32135
(c).)
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
	(3)
	calendar
	days
	beforethe 	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.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32132.)

Dismissal
	Letter
LA-CE-609-H
Page
	7
Final
	Date
If
	no
	appeal
	is
	filed
	within 	the
	specified
	time
	limits,
	the
dismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Sincerely,
ROBERT
	THOMPSON
Deputy
	General
	Counsel
By
Kristin
	L.
	Rosi
Regional
	Attorney
Attachment
cc:
	Janette
	Redd-Williams

ST A
TE
OF
CALIFORNIA	
GRAY
DAVIS, Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite 2201
Oakland, CA
9461
2
(510)
622-1016
May
	21,
	2001
Edward
	Purcell
California
	Faculty Association
5933
	W.
	Century
Los
	Angeles,
	CA
	90045
Re:	
WARNING
	LETTER
California
	Faculty Association
	v.
	The
	Trustees 	of 	the
University of
	California
Unfair
	Practice
	Charge
	No. 	LA-CE-609-H
Dear
	Mr.
	Purcell:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	February 	14,
2001,
	alleges
	the 	Trustees 	of 	the 	California 	State 	University
(University)
	unilaterally
	implemented
	a
	pay
	increase 	for
employees.
	The
	California 	Faculty Association 	(Association
	or
CFA)
	alleges
	this
	conduct
	violates
	Government
	Code
	section
	3571
(b),
	(c)
	and
	(e)
	of 	the
	Higher 	Education
	Employer-Employee
Relations
	Act
	(HEERA
	or
	Act)
. 1
Investigation 	of 	the
	charge
	revealed 	the 	following.
	The
Association
	is
	the 	exclusive 	bargaining
	representative 	for 	the
University's 	Faculty
	unit.
	The
	University
	and
	the 	Associationare
	parties 	to
	a
	collective
	bargaining
	agreement
	(Agreement)
which
	expires
	on 	June 	31, 	2001.
	Additionally, 	the
	parties
	have
signed
	a 	memorandum
	of 	understanding, 	dated 	June 	4, 	1999,
	dealingwith
	salary 	increases 	for 	the
	2000-2001
	fiscal
	year.
Article
	3.1 	of 	the
	Agreement
	states
	the 	following 	as
	a
contractual 	zipper 	clause:
This
	Agreement
	constitutes
	the
	entire
Agreement
	of 	the 	Trustees
	and
	the
	CFA,
arrived 	at 	as
	a
	result
	of 	meeting 	and
conferring.
	The
	terms 	and
	conditions
	may
	be
altered,
	changed, 	added 	to, 	deleted
	from,
	ormodified 	only 	through 	the 	voluntary 	and
1 	As
	the 	conduct 	complained 	of 	occurred 	while 	the 	parties
were
	at 	impasse, 	Government 	Code
	section 	3571(c)
	is 	inapplicable.
If 	Charging 	Party 	wishes 	to 	amend
	this 	charge, 	such 	a 	change
should 	be 	reflected.

Warning 	Letter
LA-CE-609-H
Page 	2
mutual 	consent 	of 	the 	parties 	in 	an 	expressed
written 	amendment 	to 	the 	Agreement. 	This
Agreement 	supersedes 	all 	previous 	agreements,
understandings, 	policies, 	and prior 	practices
directly 	related 	to 	matters 	included 	within
this 	Agreement.
The 	June 	4, 	1999, 	memorandum of 	understanding 	states 	in 	relevant
part:
Fiscal 	Year 	2000/2001 	Increases
If 	the 	final 	gross 	general 	fund 	budget 	of 	the
CSU 	has 	increased by 	at 	least 	$180 	million
(including 	both general 	fund 	and 	student 	fee
revenue) 	from 	fiscal 	year 	1999/2000 	to 	fiscal
year 	2000/01, 	then 	the 	total 	compensation
increases 	to 	faculty 	unit 	employees 	shall 	be
distributed 	as 	follows: 	(a) 	forty 	percent
(40%) 	of 	the 	increases 	shall 	be 	for 	faculty
merit 	increases, 	including 	those 	for 	SSI-
eligible 	employees, 	and 	(b) 	the 	remaining
sixty percent 	(60%) 	shall 	be 	for 	the 	general
salary 	increase. 	If 	the 	increase 	in 	the
final 	gross 	general 	fund 	budget 	is 	less 	than
$180 	million, 	then 	the 	parties 	shall 	give
priority 	to 	funding 	a 	service 	salary
increase, 	and 	shall 	reopen 	negotiations
solely on 	the 	amount 	and 	distribution 	of 	the
general 	salary 	and 	merit 	salary 	increases.
The 	CSU 	Board 	of 	Trustees 	shall 	adopt 	a
budget 	request 	that 	will 	fund 	at 	least 	a 	6%
salary 	increase 	for 	the 	faculty. 	The 	amount
of 	this 	request 	will 	be 	62.4 	million 	assuming
a 	6% 	salary 	increase 	in 	fiscal 	year
1999/2000. 	This 	amount 	may 	change 	due 	to
retirement 	adjustments 	in 	the 	compensation
base. 	If 	the 	salary 	increase 	is 	less 	than 	6%
in 	fiscal 	year 	1999/2000 	this 	number 	will 	be
adjusted 	proportionately. 	Compensation 	will
be 	the 	highest 	priority 	for 	requests 	in 	the
Trustees' 	budget 	after 	recurring 	costs 	and
enrollment.
It 	is 	undisputed 	that 	the 	University's 	budget 	for 	2000-2001
increased by 	at 	least 	$180 	million.
The Agreement 	also 	provides 	the 	University 	with 	guidelines 	on 	how
the 	SSI 	funds 	are 	to 	be 	calculated 	and 	distributed. 	With 	regard
to 	SSI 	calculation, 	the 	Agreement 	states:

Warning
	Letter
LA-CE-609-H
Page
	3
31.43:
	As
	part
	of
	the
	CSU
	merit
	program
	in
fiscal
	years
	1999/2000 	and 	2000/01,
	there
shall
	be
	a
	separate
	pool
	for
	bargaining
	unit
members
	eligible
	for
	Service 	Salary
	Step
Increases.
	It
	shall
	be
	calculated
	by
multiplying
	the
	total
	salary
	and
	benefits
	of
such
	employees
	by
	two
	and
	sixty-five
	one-
hundredths 	percent 	(2.65).
	This
	provision
shall
	not
	be
	subject 	to 	renegotiation
	during
reopener 	bargaining,
	if
	any,
	in
	these 	years.
Article
	31.53
	of
	the
	Agreement
	states
	the 	following
	regarding
reopeners:
The
	parties
	will
	reopen
	negotiations 	pursuant
to
	HEERA
	on
	Article
	31,
	Salaries
	and 	on
Article
	32,
	Benefits 	for
	fiscal
	years
2000/2001
	in
	accordance
	with 	the
	timelinesprovided
	in
	provision
	40.2
	of
	this
	Agreement.
In
	March
	2000,
	the
	parties
	commenced
	reopener
	negotiations
	in
accordance
	with
	Article
	31.53. 	During
	the
	first
	bargaining
session, 	the 	Association 	introduced
	an
	initial
	proposal
	which
included
	a
	variety
	of
	new wage
	and
	benefit
	programs
	described 	ingeneral 	terms. 	In 	July
	2000,
	PERB
	declared 	the
	parties 	at
impasse.
	The
	parties
	were
	unable
	to
	reach
	agreement
	with
	theassistance 	of
	a
	mediator
	and
	ultimately
	proceeded
	to 	factfinding.
The
	factfinders 	report
	was
	issued 	in
	November
	2000.
	The
	parties
have 	engaged
	in 	post-factfinding 	negotiations
	without
	resolution
of
	the 	outstanding 	issues.
On
	January
	26, 	2001,
	University 	Chancellor, 	Charles
	Reed,
informed
	Association 	President,
	Susan Meisenhelder,
	that
	he
	was
pleased 	the
	faculty
	would 	be
	receiving 	the
	pay
	raises
	theydeserved.
	Additionally,
	Mr.
	Reed
	requested 	the
	parties
	form
	a
task 	force 	to
	make
	recommendations 	on
	the 	unresolved 	compensation
issues.
On
	January
	26, 	2001,
	bargaining 	unit
	employees
	at 	CaliforniaState 	University-Chico, 	received
	an
	electronic
	message
	stating
they
	would 	be
	receiving
	pay
	increases 	in
	accordance 	with 	thecontractual 	provisions.cited
	above.
Based 	on
	the 	above
	stated 	facts, 	the 	charge 	as 	presently written
fails 	to 	state
	a
	prima 	facie 	violation 	of 	the
	HEERA,
	for 	thereasons 	provided 	below.
Charging 	Party 	contends 	the 	University 	implemented
	a
	unilateralchange 	when
	it
	implemented 	the 	terms 	of 	the 	June 	4, 	1999,memorandum
	of 	understanding, 	and 	increased 	bargaining 	unit

Warning 	Letter
LA-CE-609-H
Page 	4
members 	salary 	accordingly. 	The 	University 	contends 	they 	merely
implemented 	contractual 	provisions 	as 	called 	for 	in 	the
Agreement.
It 	is 	well 	established 	that 	an 	employer's 	pre-impasse 	unilateral
change 	of 	a 	past 	practice 	violates 	the 	duty 	to 	meet 	and 	confer 	in
good 	faith. 	(Grant 	Joint .Union 	High 	School 	District 	(1982) 	PERB
Decision No. 	196.) 	As 	such 	changes 	are 	inherently 	destructive 	of
employee 	rights, 	they 	are 	considered 	a 	per 	se 	violation 	of 	the
duty 	to 	negotiate 	in 	good 	faith. 	(Regents 	of 	the 	University 	of
California 	(1983) 	PERB 	Decision No. 	356-H.)
Herein, 	however, 	the 	facts 	are 	different. 	Unlike 	the 	normal
repudiation 	theory, 	Charging 	Party 	alleges 	herein 	that 	the
University made 	a 	unilateral 	change 	when 	it 	implemented
provisions 	of 	the 	collective 	bargaining 	agreement 	currently 	being
bargained 	for 	in 	reopener 	negotiations. 	PERB 	has, 	however,
addressed 	this 	matter, 	and 	its 	holding 	in 	Trustees 	of 	the
University 	of 	California 	(1996) 	PERB 	Decision No. 	1174-H, 	serves
as 	clear 	precedent 	in 	such 	cases.
In 	Trustees, 	supra, 	the 	Board held 	that 	reopened 	provisions 	were
not 	effectively 	terminated 	by 	reopening, 	but 	rather 	status 	quo
prevailed where 	the 	parties 	had 	previously 	agreed 	that 	the
contract 	terms 	could 	not 	be 	deleted 	except 	by mutual 	consent. 	In
that 	case, 	the 	University 	and 	the 	Academic 	Professionals 	of
California 	had 	been 	engaged 	in 	reopener 	negotiations 	over 	several
issues, 	including 	the 	employer's 	contribution 	to 	health 	benefits
and 	contracting 	out. 	After 	completing 	mediation 	and 	factfinding,
the 	parties 	remained 	at 	impasse. 	The 	union 	then 	contended 	the
reopened 	articles 	were 	no 	longer 	operative, 	and 	as 	such, 	the
union 	was 	not 	bound 	by 	the 	contracting 	out 	language. 	The
University 	argued, 	however, 	that 	status 	quo 	prevailed, 	and 	as
such, 	the 	parties 	were 	bound 	both by 	the 	contracting 	out
provisions 	and 	the 	health 	contribution 	requirements 	in 	the
agreement, 	as 	no 	new 	agreement 	had 	been 	reached.
In 	dismissing 	the 	union's 	claim 	of 	unilateral 	change, 	the
Administrative 	Law 	Judge 	noted 	that 	the 	parties 	made 	a 	clear
statement, 	through 	their 	zipper 	clause, 	that 	the 	provisions 	of
their 	contract 	could 	not 	be 	changed 	without 	voluntary, 	mutual
consent. 	As 	such, 	the 	ALJ 	stated:
Since 	I 	conclude 	that 	the 	parties 	previously
had 	agreed 	that 	contract 	terms 	could 	not 	be
deleted 	except 	by mutual 	consent, 	I 	reject
the 	argument 	that 	the 	clauses 	were 	terminated
by 	the 	reopening. 	The 	clauses 	remained 	in
effect 	and 	the 	University. 	made 	no
change 	in 	a 	negotiable 	subject.

Warning
	Letter
LA-CE-609-H
Page
	5
Facts 	herein 	are
	nearly 	identical
	to
	those
	in
	Trustees.
	Charging
Party
	and
	the
	University
	are
	parties
	to
	a
	collective
	bargaining
agreement
	which
	includes
	a
	zipper 	clause
	identical 	in
	terms
	to
the
	one 	found
	in
	Trustees,
	supra.
	Additionally, 	the
	parties
	had
completed 	impasse
	procedures
	and 	had
	reached
	a
	stalemate
	in
	post-
factfinding 	negotiations.
	As
	in
	Trustees, 	the 	University 	then
implemented
	the
	terms
	and
	conditions 	of 	the
	June
	4,
	1999,
memorandum
	of 	understanding
	by
	issuing
	pay
	increases
	and
	merit
salary
	increases
	pursuant
	to
	the
	agreed-upon
	contractual
provisions.
	The
	University's
	reinstatement 	of
	reopened
	clauses
did 	not
	constitute
	a
	unilateral
	change,
	but
	merely
	as
	assertionthat
	the
	status
	quo
	between
	the
	parties
	remained
	in
	effect.
(Trustees 	of
	the
	California 	State 	University
	(1996)
	PERB
	Decision
No.
	i174-H,
	p.l.)
Charging
	Party
	contends
	Trustees, 	supra,
	is
	not
	applicable
	in
this 	situation.
	However,
	Charging
	Party
	fails
	to 	explain
	why
	it
should not
	be 	bound
	by
	the 	zipper 	clause
	and
	the
	terms
	and
conditions 	of 	the
	June
	4, 	1999,
	agreement.
	While
	the
	parties
	are
free 	to
	agree
	to
	a
	higher
	salary 	increase
	in
	reopeners,
	the
parties 	failure
	to
	reach
	an 	agreement 	does
	not
	repudiate 	the
terms
	and
	conditions 	already
	agreed
	upon.
	As
	such,
	this
	charge
fails
	to
	state
	a
	prima
	facie
	violation
	of 	the
	HEERA.
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 	additional 	facts
	which 	would
	correct
	the
deficiencies
	explained
	above,
	please
	amend
	the 	charge.
	The
amended
	charge 	should
	be
	prepared
	on
	a
	standard
	PERB
	unfairpractice
	charge
	form,
	clearly
	labeled
	First
	Amended
	Charge,
contain
	all
	the
	facts
	and
	allegations
	you
	wish
	to
	make,
	andbe
	signed under
	penalty
	of 	perjury
	by
	the 	charging
	party.
	Theamended
	charge
	must 	have
	the 	case
	number
	written
	on
	the 	top
	right
hand
	corner 	of 	the
	charge
	form.
	The
	amended
	charge
	must
	be
served
	on
	the 	respondent's 	representative
	and
	the
	original 	proofof 	service
	must 	be
	filed
	with
	PERB.
	If
	I
	do
	not 	receive
	an
amended
	charge
	or
	withdrawal
	from you
	before
	May
	28, 	2001,
	I
shall
	dismiss 	your 	charge.
	If
	you 	have 	any
	questions, 	please
call
	me
	at
	(510)
	622-1016.
Sincerely,
kkZ-
Kristin
	L.
	Rosi
Regional 	Attorney