PERB Decision No. 0356H•Regents of the University of California (Statewide University Police Association) (PERB 0356H)
Regents of the University of California (Statewide University Police Association) (PERB 0356H)
PERB Decision No. 0356HCalperb14 nov 1983
Testo completo
) ) ) ) ) ) ) ) ) ) ) ____________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ____________________ ) Case Case No. S-CE-6-H No. S-CE-6-H PERB Decision No. 356-H PERB Decision No. 356-H November 14, 1983 November 14, 1983 Case Case No. LA-CE-47-H No. LA-CE-47-H Appearances: STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD STATEWIDE UNIVERSITY POLICE ASSOCIATION, Charging Party, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent. STATEWIDE UNIVERSITY POLICE ASSOCIATION, Charging Party, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent. Appearances: Edward M. Opton, Jr., Attorney for the Regents of Edward M. Opton, Jr., Attorney for the Regents of the University of California. the University of California. Before Jaeger, Morgenstern and Burt, Members. DECISION BURT, Member: These consolidated cases are before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Regents of the university of California (UC) to a proposed decision of an administrative law judge (ALJ). The
ALJ, assessing charges filed by the Statewide University Police Association (SUPA), found that UC violated subsections 357l(a), (b) and (c) of the Higher Education Employer-Employee Relations Act (HE~RA) by refusing to negotiate and by unilaterally raising the fees paid by its police officer employees for parking in lots operated by UC.l SUPA filed no exceptions. 2 We have considered the exceptions filed by UC in light of the record as a whole, and hereby affirm the result reached by the ALJ, attached hereto and incorporated by reference herein, only insofar as it is consistent with the following discussion. FACTS We have reviewed the ALJ's findings of fact in light of UC's exceptions and the record as a whole. We find them free lHEERA is codified at section 3560 et seq. of the Government Code. Subsections 357l(a), (b) and (c) provide as follows: It shall be unlawful for the higher education employer to: (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. (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. 2
of prejudicial error.2 3 of prejudicial error. 2 To briefly summarize, since August 19, 1980, and at all times relevant herein, SUPA has been the exclusive representative of a unit consisting of all police officers employed by UC. During the period relevant to this case, SUPA was the only exclusive representative of UC employees. The UC parking system is supported entirely by user fees. It is owned and operated by UC and utilized by staff, students, and the public. Police officers employed by UC are not required to drive to work. There is insufficient non-UC parking at or near the work location to accommodate those employees who choose to drive to work. employees who choose to drive to work. On January 30, 1981, all UCLA employees received a memo indicating that an increase in parking fees would be necessary I for the 1981-82 fiscal year. On March 13, 1981, SUPA gave written notification to UC's director of collective bargaining services of its belief that parking fees were within scope artd that any unilateral change would violate HEERA. On April 13, 1981, UC responded that the proposed increase would not apply to the unit employees represented by SUPA. On 2we note that the ALJ's findings of fact, gleaned from stipulations of the parties, were served upon SUPA and UC for comment prior to issuance of the decision. At that time, UC's comment was limited to seven nonsubstantive suggestions, none of which were repeated by UC in its statement of exceptions to the proposed decision. 3
4 May 29, 1981, however, it indicated that any such increase would apply to the police officers in the unit. It also advised SUPA that, in UC's view, the parking fee issue was not within scope. On June 12, 1981, SUPA informed UC that it would file unfair practice charges regarding UC's refusal to negotiate parking fees unless UC promptly indicated its willingness to do so. On June 16, 1981, the UC Davis police chief sent Davis police a memo indicating that campus police would be charged the increased parking rate, as would other campus employees, and that the director of collective bargaining for UC did not consider the issue to be within scope. On June 18, 1981, SUPA presented its initial written proposal on parking fees to UC, asking that UC provide adequate free parking for all unit employees. UC subsequently proposed that it would continue to provide parking to unit employees on the same basis as it provided parking to other (non-unit) employees. The parties stipulated that they have been engaged in the collective negotiating process since June of 1981. However, no agreement has been reached on parking. On July 1, 1981, UC implemented a series of parking fee increases systemwide, and required the represented police officers to pay them.
On October 1, 1981, UC, by letter from Thomas Mannix, Director of Collective Bargaining Services, informed SUPA that: Subsequently, in the spring of 1982, UC notified SUPA of its intent to impose a variety of different parking rate increases at its various parking facilities on July 1, 1982. DISCUSS ION 5 Director of Collective Bargaining Services, informed SUPA that: As I now understand your proposal, it is that peace officers should be exempted from all parking charges. If my understanding is correct, I would like to make it clear that the University does not consider the proposal to be outside the scope of representation, and is prepared to include it in the bargaining process. Thus, UC acknowledged the negotiability of parking fees explicitly for the first time on October 1, 1981 •. The ALJ found that the amount of parking fees charged employees in UC-operated lots is a subject within scope under HEERA. She found that UC violated its negotiating obligation. by, inter alia, unilaterally raising the parking fees paid by SUPA's constituents. on July 1, 1981, and additionally by placing unreasonable limitations on the breadth of the ongoing negotiations regarding fees. To remedy such violations, she ordered UC to cease and desist from refusing to negotiate in good faith, to roll back the parking rates to their pre-July 1981 level for SUPA-represented employees, to refund the fees collected in excess of that amount, and to. post an appropriate notice.
For purposes of the University of California only, "scope of representation" means, and is limited to, wages, hours of employment, and other terms and conditions of employment. The scope of representation shall not include: shall not include: 6 SUPA filed no exceptions. UC excepts to the finding that parking fees are generally within the scope of representation as set forth at subsection 3562 (q)3 due to3 the proviso as set forth at subsection 3562(q) ~ue to the proviso contained at subsection 3562(q) (2) removing certain fees from 3subsection 3562(q) provides as follows: (1) Consideration of the merits, necessity, or organization of any service, activity, or program established by law or resolution of the regents or the directors, except for the terms and conditions of employment of employees whornay be affected thereby. (2) The amount of any fees which are not a term or condition of employment. (3) Admission requirements for students, conditions for the award of certificates and degrees to students, and the content and supervision of courses, curricula, and research programs, as those terms are intended by the standing orders of the regents or the directors. (4) Procedures and policies to be used for the appointment, promotion, and tenure of members of the academic senate, the procedures to be used for the evaluation of the members of the academic senate, and the procedures for processing grievances of members of the 6
7 scope. UC further argues that even if parking fees are within scope as a threshold matter, it did not change the dynamic status quo regarding parking fees, but rather simply continued its preexisting practice of imposing annual across-the-board fee increases, and thus that no unilateral change occurred. Additionally, UC excepts to the finding that it has failed to negotiate in good faith regarding parking fees since July of 1981 by impermissibly limiting the breadth of negotiations. Finally,"UC excepts to the ALJ's make-whole remedy requiring it to roll back parking fees to the pre-July 1981 level and refund the excess amount paid by the members of the peace officer unit. academic senate. The exclusive representative of members of the academic senate shall have the right to consult and be consulted on matters excluded from the scope of representation pursuant to this paragraph. If the academic senate determines that any matter in this paragraph should be within the scope of representation, or if any matter in this paragraph is withdrawn from the responsibility of the academic senate, the matter shall be within the scope of representation. All matters not within the scope of representation are reserved to the employer and may not be subject to meeting and conferring, provided that nothing herein may be construed to limit the right of the employer to consult with any employees or employee organization on any matter outside the scope of representation. 7
Although it initially contended that parking fees are not in scope under HEERA's inclusory scope language, 11 ••• wages, hours of employment, and other terms and conditions of employment," UC does not, by its exceptions, reassert that contention. The ALJ found that parking fees are generally within the ambit of "terms and conditions of employment," based upon an analogy to private sector cases holding that employer-provided food service prices are mandatorily negotiable. See Ford Motor Co. v. NLRB (1979) 441 U.S. 488 [101 LRRM 2222] and other cases cited by the ALJ at pp. 15-17, slip opinion. In Ford Motor Co., id., the Supreme Court noted that food pricing could lead to substantial disputes, and that the mediatory influence of collective bargaining would foster peaceful resolution of such disputes. It noted the "trend of industrial practice" to provide in-plant culinary services in response to "increasing employee concern over the issue," without reference to the existence of reasonable alternatives to such in-plant food services. as for the argument that in-plant food prices and service are too trivial to qualify as mandatory subjects, the Board (NLRB) has a contrary view, and we have no basis for rejecting it ••• we accept the Board's view that in-plant food prices and service are conditions of employment and are subject to the duty to bargain. 8 The court found that food prices were within scope because such prices "vitally affect" terms and conditions of employment, stating, at 101 LRRM 2227, that 8
9 See also Social Services Union v. Board of Supervisors (1978) 82 Cal.App.3d 498 [147 Cal.Rptr. 126], wherein the Court of Appeals found employer-provided food services to be equivalent to employer-provided parking for purposes of determining whether parking services were within scope under the similar language of the Meyers-Milias-Brown Act governing labor relations in California local government. For the reasons set forth in the ALJ's decision, we affirm the finding that the amount of fees charged to employees for employer-provided parking is a matter within the scope of representation under HEERA. UC contends that the proviso language of subsection 3562(q) (2) of HEERA, excluding from scope" •• the amount of any fees which are not a term or condition of employment" excludes the parking fees at issue herein from scope. UC argues that parking fees for police officers are not a term or condition of employment because there is no requirement that employees utilize their personal vehicles for commuting, and thus they are not required to use UC's parking facilities. UC acknowledges that the phrase "term or condition of employment" is a labor relations term of art, which encompasses many matters of central concern to employees regarding their working ~ life, whether or not such matters are required aspects of the employment relationship. However, it argues that the phrase "term or condition of employment" as used in subsection
10 3562(q) (2) must have a different meaning than the general labor relations meaning employed in the inclusory language of subsection 3562(q). According to UC, the Legislature must have intended that, when used in the exclusionary proviso language of subsection 3562(q) (2), the phrase referred to fees which are paid by all employees as a requirement of their job. If not, subsection 3562(q) (2) would be a nullity, because it would duplicate the meaning of the inclusory language which precedes it. We reject the construction of the proviso language of 3562(q) (2) urged by UC, as it ascribes an unduly narrow definition to the phrase "terms or conditions of employment." Such a construction requires the incongruous inference that the Legislature intended that the same phrase have two entirely different meanings, even though it is used in the same context, within the same section of the same statute. Contrary to UC's contention, we find that the proviso language of subsection 3562(q) (2) was intended to accomplish precisely what it states, to wit, to remove from scope fees which are not terms and conditions of employment within the labor relations meaning of that term. The proviso serves to dispel the contention that any fee paid by employees to the higher education employer, even those for matters not even remotely related to the employment relationship, are~~ within scope. 10
In a related argument, UC contends that the parking fees at issue herein are not a term or condition of employment since alternative modes of transportation exist for employees. According to UC, this differentiates parking fees from the food service costs at issue before the U.S. Supreme Court. in Ford Motor Co., supra, and cases relied upon therein and cited by the ALJ. 11 The Board rejects UC's contention that the cited National Labor Relations Board (NLRB) food service cases turn on whether alternatives existed to the vending services available in-house. In Ford Motor Co. v. NLRB, supra, the Supreme Court did point out that, in the plant in question, there appeared to be no reasonable alternative to the company cafeteria. However, it did not indicate that the NLRB' s consistent holding that" .•• in-plant food prices are among those terms and conditions of employment ••• about which the employer and union must bargain ••• " would only be affirmed in those cases in which it was shown that there existed no reasonable alternative to in-house culinary services, and in which employees were thus "captive consumers" of such services. Rather, it cited with approval a series of NLRB cases in which the "captive consumer no reasonable alternative" situation did not exist. Thus, at fn. 6, the Court cited with approval, inter alia, McCall Corporation (1968) 172 NLRB 540, 546 [69 LRRM 1187], enforcement denied (4th Cir. 1970) 432 F.2d 187 [75 . .. 11
LRRM 7273], wherein the NLRB affirmed its trial examiner's finding that the fact that alternative.eating facilities are available is not determinative or in itself sufficient to remove the issue of cafeteria pricing from.scope. Similarly, in another cited case, Package Machinery Co •. ( 1971) 191 NLRB 268 [77 LRRM 1456], enforcement denied (1st Cir. 1972) 457 F.2d .936 [79 LRRM 2948], food prices were held within scope although severa1~off-plant restaurants were available and were used by employees as alternatives to in-plant facilities. In Ladish Co. (1975) 219 NLRB 355, the NLRB found that "brown-bagging it" was a viable alternative, but nonetheless held that vending machine prices were a mandatorily-negotiable item. UC argues for the first time by its exceptions that, as a matter of fact, it is in the business of providing parking, and thus that it should be free to exercise unfettered discretion as to the price of its product. If UC had demonstrated that it was primarily in the -business of providing parking, we might be persuaded that it enjoys the managerial prerogative to price its "product." Contrary to UC's assertion, .common sense dictates that UC exists primarily for the purpose of education and research for 12 machine prices were a mandatorily-negotiable item. We find, in keeping with the above, that the amount of fees charged to employees for employer-provided parking is a subject within thP. scope of representation under HEERA, whether or not alternative methods of commuting are available to employees. .. 12
the benefit of the people of the State Df California and not as a purveyor of parking. No evidence was presented which would indicate that it depends upon revenues from parking for its continued existence, nor was there any showing that it derives any profit from the parking enterprise.4any profit from the parking enterprise. 4 Because we cannot conclude, based upon any evidence properly befo.re us, that the operation of parking facilities is more than an ancillary function of UC, we reject the contention that pricing of such services is a managerial prerogative of uc.s UC next contends that even if the amount of fees is within scope, it was merely conforming to established past practice 4Although UC does set forth certain facts regarding the scope and extent of its parking operations, these facts were not presented by stipulation or testimony during the trial of this matter, nor were they pled in UC's trial brief. They were They were presented for the first time by exceptions. Hence, we have not considered them in ruling on this argument. Knapp v. Newport Beach (1960) 186 Cal.App.2d 669, Witkin, California Procedure, 2d Edition (1971), Vol. 6, section 219, p. 4209. 13 UC. 5 5rf UC demonstrated that its practice was to operate one uniform parking system which employees were privileged to utilize on the same basis as the public at large, we might find the argument that UC is, at least partially, in the parking business and should be free to unilaterally price its product more persuasive. However, UC failed to demonstrate that employees are merely fungible consumers. of its parking "product." Rather, it may be fairly inferred from the record that UC's practice has been to offer employees parking which is separate and distinct from that provided to students and the general public, by virtue of both the fee structure and type of permit involved. The fact that employees consume UC's parking product on a different basis than do other consumers constitutes an additional basis for rejecting UC's "parking is, in part, our business" contention.in part, our business" contention. 13
14 when it increased the fees. The increase, UC contends, was simple maintenance of the dynamic status quo, and thus was not a change at all. UC points out that its long-standing practice regarding parking fees is to annually review the cost of its parking operation, and to uniformly increase employee parking fees on July 1 of each year, as necessary. In support of its theory, UC relies upon Pajaro Valley Unified School District (5/22/78) PERB Decision No. 51, wherein PERB held that an employer was privileged to pass along increases in the cost of health insurance to its employees unilaterally, pending completion of negotiations. In Pajaro Valley, the employer's past practice, established pursuant to contractual agreement with the representative of its employees, was to pay only a set dollar amount toward the total health insurance premium. When the carrier increased its premium, the employer's practice was to pass along the entire amount of such increase to employees. PERB held, in accordance with private sector precedent, that because the employer had historically passed along increases in premiums to employees pending negotiations, it was privileged to act in accordance with that practice, and that such conduct did not amount to a "change" in terms of employment. See also Stratford Industries, Inc. (1974) 215 NLRB 682. UC contends that its formula is established just like that in Pajaro Valley, supra. It contributes a set amount from its 14
15 operating budget ($0.0) and charges consumers of parking services for the amount of any increased costs. We agree with the general rule set forth by UC, which is that an employer may unilaterally act in accordance with its established practice regarding matters within scope, pending the outcome of good faith negotiations. However, the instant case varies in several crucial particulars from cases establishing that principle and relied upon by uc. In the instant case, the amount of increase in parking system costs was not set by a clear formula. It was not keyed to some standard method of computation such as a cost-of-living increase or a regular percentage step increase. Nor was the amount of the increased cost established by a third party (such as the health care insurer in Pajaro Valley, supra). Further, the increase was not passed along on a uniform percentage basis or by a set amount. Different sorts of parking fees exist in the system (metered, quarterly, hourly, daily, etc.), and different sorts of consumers utilize them (staff, students, the public). Moreover, the record does not demonstrate how UC computes the total cost of parking services. From the meager stipulated facts, we can deduce that UC does the computation itself, and that it involves such complex factors as the amount of bonded indebtedness and the extent and method of depreciation of facilities. It is clear that UC exercises a vast amount of discretion in computing an annual operating 15
16 budget for its parking system. Further, UC clearly exercises virtually unfettered discretion in determining how it will extract increased costs. It determines the extent to which each type of parking facility and each group of consumers will bear the increased burden. Thus, it could pass along any increase in cost to students or the public, as opposed to staff, or conclude that occasional users would be charged more than long-term, regular consumers. It is apparent that UC's increases in parking fees are extremely different from the increase in medical insurance premiums in Pajaro Valley, supra, due to the discretion possessed by UC to determine by its own method the amount of the increase and the manner and extent by which it will be extracted from parking consumers. In NLRB v. Katz (1962) 369 U.S. 736, 50 LRRM 2177, at 50 LRRM 2182, the U.S. Supreme Court established a rule governing the legality of unilateral action undertaken during the pendency of, but prior to, conclusion of negotiations. The Court found that such a unilateral act is tantamount to an outright refusal to negotiate on a subject, unless it is an automatic increase, not "informed by a large measure of discretion." Where the employer has traditionally exercised a large measure of discretion in making such changes, it is impossible for the exclusive representative to know whether or not there has been a substantial departure from past practice, 16
~ 17 and therefore the exclusive representative may properly insist that the employer negotiate regarding such changes.6 In Oneita Knitting Mills, Inc. (1976) 205 NLRB 500, the employer attempted to unilaterally determine the amounts of merit increases, as it regularly had prior to certification of an exclusive representative. The NLRB held, at fn. 1, p. 500, that an employer with a past history of a merit increase program may. neither discontinue that program nor continue to unilaterally exercise discretion with respect to such increases. increases. What is required is a maintenance of the preexisting practice, i.e., the general outline of the program. However, to the extent that discretion has existed in determining the amount or timing of the increase, the union must have an opportunity to negotiate over the terms of the program prior to its implementation. In accord, see Long Mile Rubber Company (1979) 245 NLRB 1337. To summarize, in the instant case the record is devoid of evidence as to the amount, frequency or regularity of such increases in the past. It is similarly silent as to UC's method of computing whether increased parking system costs were incurred by it in any given year and, if so, what the amount cf ~ny such costs were. Further, the record does not indicate whether UC used a uniform method of computation from year to 6In accord with the general rule that an employer must maintain the status quo regarding matters within scope is Davis Unified School District, et al. (2/22/80) PERB Decision No. 116. 17
year, or whether its accounting practices varied. we must conclude that UC's past practice involved the exercise of virtually unfettered discretion in determining the cost of parking services, the manner of apportioning any increase, and the identity of the parking consumers who would bear the burden of paying the increased fees. The assertion that past practice justified a unilateral change regarding a matter within scope is an affirmative defense, upon which UC had the burden of proof. We cannot conclude, based upon the factual record in this case, that UC's increase in parking fees was such a routine computation, so free of exercise of discretion, that UC was privileged to undertake it unilaterally, particularly as to the newly-represented police officers. UC next excepts to the ALJ's finding that it particularly failed to negotiate in good faith regarding parking fees by taking the position that it would negotiate over its proposal or SUPA's proposal, and nothing in between, thus impermissibly limiting the parameters of the negotiations. Based upon the limited record in this case, we cannot agree that SUPA has established a failure on UC's part to negotiate in good faith regarding parking fees by its response to proposals since June of 1981. The parties stipulated that they have been negotiating regarding fees since an unspecified date in June of 1981. UC's letter to SUPA of October 1, 1981, indicates that it believes that SUPA's proposal provides a "basis for meeting and conferring," and that UC "does not 18 18
It is clear from the stipulated record that UC failed and refused to negotiate regarding parking fees until June of 1981. we cannot conclude, from the limited record in this case regarding the particular negotiating conduct described above, that UC's position regarding SUPA's proposals constituted a separate basis for finding a 357l(c) violation. We thus reject the ALJ's finding in that regard, and will modify our Order accordingly. 19 consider the proposal to be outside the scope of representation." In April of 1982, UC wrote to SUPA that it was prepared to continue negotiating regarding its proposal to uniformly apply parking fee increases to all employees and SUPA's proposal to provide free parking for its police officer constituents. There is no express or implied indication in these letters or in the record evidence that UC has adopted an "all or nothing" posture in the negotiations. A statement that SUPA's proposal is viewed as being within scope by UC, and that UC stands ready to negotiate regarding that proposal, is not an indication that UC is unwilling to consider any outcome other than that included in its or SUPA's proposals. To summarize, we find that UC violated subsections 357l(a), (b) and (c) of HEERA by unilaterally increasing the parking fees charged to employees in the peace officer unit represented by SUPA. As a remedy for said violation, it is appropriate that UC be required to cease and desist from such unilateral action, to restore the status quo ante, to make employees whole 19
by refunding the increased-portion of parking fees paid by them since July 1, 1981, and to post an appropriate notice. UC takes exception to the remedial portion of the ALJ's . proposed decision. First, UC argues that the parking fees at issue herein fall within a limited exception to the general principles governing remedies in unilateral change cases, carved out in the food service. price change cases cited above. UC concedes that the general rule is that employers must refrain from unilaterally changing matters within scope until completion of good faith negotiations. However, it points out that in several food service cases,7 the NLRB and courts have held that the appropriate order requires the employer only to bargain regarding changes in food prices which have been made or are about to be made. 7Ford Motor Compan any (Chicago 1 v. NLRB, supra, Westinghouse Electric Corp. (1966) 156 NLRB 080,--rord Motor gom Stamping Plant) (1977) 230 NLRB 716; Mc al1 Corp. (19 8) 172 NLRB 540; Package Machinery Co. (1971) 191 NLRB 268; and Ladish Co. (1975) 219 NLRB 354. 20 The rationale for allowing post-change bargaining in these cases was that it would be impractical to require completion of good faith negotiations before every change in the price of cafeteria or vending machine items. Such a requirement would lead to endless rounds of negotiations regarding minor matters such as the price of individual items on the menu. That 20
UC further argues that no rollback of fees should be ordered in this case because such an order would involve speculation on the part of PERB as to the proper point in time and the amount of any such rollback. UC contends that the proper remedy is to establish prices at the level at which they would be set through good faith negotiations. It argues that such negotiations would not have resulted in any different parking fee structure than that which it has implemented unilaterally. Its assertion is that the principle of uniform parking fees for all employees is so crucial to UC that it would steadfastly have adhered to it and would never have agreed to any other proposal. This assertion comes perilously close to an admission that UC has not approached negotiations over parking fees II with the view of reaching an agreement if possible 11 as contemplated within the 21 rationale is not applicable to the unilateral change at issue here. The changes in parking fees have historically occurred only once annually, on July 1. They are more aptly analogous to once-a-year changes in wages or benefits than to frequent irregular ai"terations in the price of individual cafeteria items. We decline to hold that the infrequent, regularly occurring parking rate increases fall within the narrow exception to the general remedial principles in unilateral change cases carved out in the food service area. . 21
requirement of good faith expressed in NLRB v. Highland Park Mfg. (4th Cir. 1940) 110 F.2d 632 [6 LRRM 786] and numerous subsequent cases. There is no allegation in this case that UC has generally failed to approach negotiations over fees with the requisite good faith. However, its representation is nonetheless startling. The declared resolve never to waiver in negotiations is not a compelling argument for mitigation of the normal remedy in unilateral change cases, requiring a return to the status quo. In this case, it requires no speculation to fix the time of the unilateral change as July 1, 1981, and to fix the amount of the rollback and refund by reference to the rates prevailing at that time. ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, and pursuant to Government Code section 3563.3, it is hereby ORDERED that the Regents of the University of California (UC) and its representatives shall: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and confer in good faith with the Statewide University Police Association (SUPA) by taking unilateral action on matters within the scope of representation, as defined by subsection 3562(q), and specifically with respect to the increase in fees charged for parking; 22 22
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE PURPOSES OF THE HEERA: 1. Rescind the increase in parking fees effective July 1, 1981 as applied to employees in the unit represented by SUPA and return to the fee schedule in effect prior to the unlawful unilateral change and retain the status quo ante unless and until the parties exhaust the statutory duty to meet and confer or agree otherwise by their adoption of a negotiating agreement. 23 2. Interfering with employees in their exercise of their right to select an exclusive representative to meet and negotiate with UC on their behalf by unilaterally changing matters within the scope of representation without meeting and negotiating with the exclusive representative; and 3. Interfering with the right of SUPA to represent its members regarding matters within the scope of representation. 2. Pay to employees in the unit represented by the SUPA the difference between the parking fees collected since July 1, 1981, and the amount they would have paid but for the increase effective that date, together with interest at the lawful rate. 3. Within thirty-five (35) days following the date of service of this Decision, post at all work locations where Notices to employees customarily are placed, copies of the 23
4. Provide written notification of the actions taken to comply with this Order to the regional director of the Public Employment Relations Board, in accordance with her instructions. 24 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 insure that this Notice is not reduced in size, defaced, altered or covered by any material. Members Jaeger and Morgenstern joined in this Decision. 24
subsection 3571 (a) of the HEERA.
A. CEASE AND DESIST FROM
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. S-CE-6-H and
LA-CE-47-H in which all parties had the right to participate,
it has been found that the Regents of the University of
California {UC) have violated subsection 357l{c) of the Higher
Education Employer-Employee Relations Act {HEERA) by
unilaterally increasing the parking fees charged to police
officers in the unit represented by the Statewide University
Police Association.
It has also been found that this same conduct violated
subsection 357l{b) of the HEERA since it interfered with the
right of the Statewide University Police Association to meet
and confer on behalf of its members.
It has also been found that this same conduct interfered
with negotiating unit members' right to be represented by their
exclusive representative, thus constituting a violation of
subsection 357l{a) of the HEERA.
As a result of this conduct, we have been ordered to post
this Notice, and we will:
A. CEASE AND DESIST FROM
1. Failing and refusing to meet and confer in good
faith with the Statewide University Police Association by
taking unilateral action on matters within the scope of
representation, as defined by subsection 3562{q), and
specifically with respect to the increase in fees charged for
parking.
2. Interfering with employees in their exercise of
their right to select an exclusive representative to meet and
negotiate with UC on their behalf by unilaterally changing
matters within the scope of representation without meeting and
negotiating with the exclusive representative.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE HEERA:
1. Rescind the increase in parking fees effective
July 1, 1981, as applied to employees in the unit represented
by the Statewide university Police Association, and return to
1the fee schedule in effect prior to the unlawful unilateral change and retain the status quo ante unless and until the parties exhaust the statutory duty to meet and confer or reach agreement. 2. Pay to employees in the unit represented by the Statewide University Police Association the difference between the parking fees collected since July 1, 1981 and the amount they would have paid but for the increase effective that date, together with interest at the lawful rate. REGENTS OF THE UNIVERSITY OF CALIFORNIA Dated: By Authorized Agent THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL. 22
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD STATEWIDE UNIVERSITY POLICE ASSOCIATION, Charging Party, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent. STATEWIDE UNIVERSITY POLICE ASSOCIATION, Charging Party, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent. Consolidated Unfair Practice Case No. S-CE-6-H and Case No. LA-CE-47-H PROPOSED DECISION (5/17/82) Appearances: obert A. Jones for the Statewide University Before Sharrel J. Wyatt, Administrative Law Judge. PROCEDURAL BACKGROUND Allegations that the Regents of the University of California (herein University) unilaterally changed the parking fee rates for employees in the unit represented by the Statewide University Police Association (herein SUPA) at the Davis and Los Angeles campuses in violation of Government ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Robert A. Jones for the Statewide University Police Association; Edward M. Opton, Jr., Attorney for the Regents of the University of California.
Code section 357l(a} and (c)l were the basis for unfair practice charges filed by the SUPA. These charges, filed with the Public Employment Relations Board (herein PERB} on June 26 and 29, 1981, were amended to include allegations that the University had unilaterally increased parking fees on other campuses as well. The charges were consolidated for informal and an informal conference on July 30, 1981 failed to resolve the dispute. The University filed its Answers and Amended Answers on July 23, and 27 and August 10, 1981 respectively. These cases were consolidated and a Complaints and Notice of Hearing issued on January 15, 1982. A formal hearing was conducted on March 17, 1982 at which the parties entered stipulations on the record with leave to file and serve additional information at the request of the administrative law judge. Final briefs were filed on April 19, 1982. Thereafter, additional stipulated facts were submitted by the parties. The findings of fact were served with opportunity to object on or before May 14, 1982 and this matter stood submitted. FINDINGS OF FACT The Regents of the University of California are an employer and the Statewide University Police Association an employee organization within the meaning of HEERA.2 The SUPA has been 1All references are to the Government Code unless otherwise indicated. 2The Higher Education Employer-Employee Relations Act is codified at Government Code section 3560 et seq. 2
the exclusive representative for a unit consisting of peace officers3 sin officers3 since August 19, 1980. Employees in the peace officer unit work on rotating shifts, 24 hours per day, and are on call. They are required to carry tools of the trade to and from work such as their gun and badge. The past practice of the University has been to charge the same parking fee rates to employees in the unit represented by the SUPA as it charged to other staff employees purchasing the same services. The same has been true for other services such as cafeteria, vending machines, or tickets to athletic events. These latter items have been increased, sometimes with prior notice to staff employees and/or employee organizations. For example, the price of the staff Recreation Privilege Card4 was increased from $22.00 to $35.00 at the Los Angeles campus on July 1, 1980, without prior notice to employees or employee organizations. The University provides approximately 70,000 parking spaces, and this number is probably sufficient to accommodate all staff employees at some facilities. Parking permits are 3As of January 20, 1982 the unit contained 42 at UCLA, 27 at Davis, 49 at Berkeley, 14 at San Francisco, 9 at Riverside, 15 at San Diego, 10 at Santa Cruz, 21 at Santa Barbara, 20 at Irvine and 6 at Lawrence/Berkeley Laboratory, for a total of 213. 4The Staff Recreation Privilege Card is for use of athletic and recreational facilities. 33
required at all campuses, laboratories and hospitals not only to ration scarce spaces, but also, and primarily, to support the parking system financially. The Legislature has never appropriated funds for parking at the University; the parking system is entirely self-supporting; and the permit fees are therefore essential to the existence of the parking system. At all campuses permits are available to police officers on a basis no less favorable than to other staff employees. On January 30, 1981 all Los Angeles campus academic and staff employees were sent a memorandum outlining the need for changes in parking fees for the 1981-82 fiscal year. The memo stated that an explanation of the need to increase parking fees had been given in February, 1980, that that explanation had been based on certain assumptions, that those assumptions had been inaccurate, and that meetings would be conducted before February 10, 1981 with the Faculty Welfare Committee of the Academic Senate, the Personnel Policies Committee of the UCLA Staff Association and representative student groups to review the proposed parking fee structure for 1981-82. It was anticipated that the parking fee proposal would be forwarded to the chancellor on February 10 and the Regents on February 13. On March 13, 1981, the SUPA wrote to the director of collective bargaining services indicating that it had recently become aware of the proposed parking fee increase and considered this a term and condition of employment. A 4
unilateral change would be a violation of section 357l(b) and (c) (c), according to the SUPA. It therefore made formal demand to have the fees remain at the same figure and that the University refund any increase that had been deducted. On April 13, 1981, the University's director of collective bargaining services responded that the increase for 1981-82 would apply to all employees except members of the unit of police certified by PERB. On May 29, 1981, the University's director of collective bargaining services again addressed the issue, stating that the rate increase should apply to peace officers in the same way it applied to other employees. While willing to discuss the issue and to provide information to the SUPA, the University stated that it could not agree that the subject was within the scope of representation. It was prepared to consult. It has now been determined that parking may not be a condition of employment and, therefore, the University may not have a statutory duty to meet and confer with exclusive representatives on fee increases for University-operated parking. 5 On June 9, 1981, the University's coordinator, auxiliary enterprises and services programs, advised eight vice-chancellors and an assistant vice-chancellor that the SUPA had contended that the increase in parking fees was a condition of employment, but the position of the University was stated as follows: 5
On June 16, 1981, E. M. McEwen, Chief of Police, sent the following memo: TO: All Sworn Personnel RE: Parking Permits - Rate Increase There was a rumor that the University would not require sworn personnel to pay the increased rates for campus/UMC parking permits on the basis that the rate could be considered as part of the "terms and conditions of employment"; that the parking permit fee was an item subject to collective bargaining. Vice President Kleingartner has indicated the University does not consider the foregoing to be an appropriate posistion (sic) to take. Therefore, all UC employees, including police officers, will be required to pay the required fee, including any increase, should they wish to obtain a UC parking permit for the coming year. While this memo was sent to Davis personnel, it was indicative of the University's position at that time. No convenient alternative parking is available. At the Davis and Los Angeles campuses, there are no convenient parking facilities available as alternatives to the campus facilities.5 5This repetition reflects two separate stipulations. On June 12, 1981, the SUPA wrote to the University giving formal notice that if it did not receive written assurance that the University would bargain the issue of proposed increases in parking fees prior to June 22, 1981, it was prepared to file unfair practice charges with PERB. 6
With no prior meeting and conferring, on July 1, 1981, the following increases went into effect: Davis Type of Service Monthly Fee Before 7/1/81 After 7/1/81 "A" Permit $4 . 00 $5.00 "C" Permit 3.00 4.00 "M" Permit 1.50 2.25 "N" Permit 2.00 2.33 Los Angeles Type of Service Monthly Fee Before 7/1/81 After 7/7/81 Annual Permit $9.00/mo $12.00/mo Daily Permit (per entry) 2.00 2.00 Night Permit 2. 0625 2.0625 Meters (per hour) 1.00 1.00 Misc. and Admin. Charge 5.00 5.00 Attendant Services 20.00 20.00 (for 1-1/2 hour minimum) Attachment A contains the fiscal 1980-1981 systemwide parking fee schedule. Attachment B contains the fiscal 1981-1982 schedule. 77
From at least 1973 until July 1, 1981, employees in the peace officer unit had received the same percentage increase in pay as other University employees except for 1973 when there was an across-the-board increase of $70.00. Peace officers received the $70.00 increase plus 2 1/2 percent. Due to collective bargaining, employees in the peace officer unit did not receive the annual increase on July 1, 1981. However, with the agreement of the SUPA they did receive the increase in per diem allowance for travel effective Janaury 1, 1981 and since July 1, 1981, they have received the increases in dental and health coverage. Meanwhile, on June 18, 1981, the SUPA presented initial bargaining proposals to the Regents of the University of California. It included the following proposal regarding parking fees: XIV. PARKING Employer shall at each work location, provide adequate secured parking for all employees' private vehicles. There shall be no charge to employees for such parking. The parties have been engaged in the collective bargaining process since June 1981. As of the date of hearing, no agreement has been reached concerning parking fees. Proposals have been exchanged on the issue of parking fees. One of the University's proposals was: The University shall provide parking at each campus or laboratory to the same extent and 88
under the same conditions as other University nonmanagement staff employees. The SUPA has made the following proposal: The University shall at each work location, provide adequate secured parking for all employees' private vehicles. In the alternative to provision of secured parking, the University may, on a campus by campus basis, agree in writing to reimburse any employee for the actual cost of any damages or losses sustained through theft, vandalism or other damages to his or her vehicle while parked in assigned parking areas while the employee is on duty. Parking shall be provided at no cost to the employees. On July 20, 1981, the SUPA wrote to the University requesting information regarding whether the University was meeting and conferring with another employee organization on the issue of parking fees. On July 27, 1981, the University responded that the inquiry had been referred to the General Counsel's office because it was handling the unfair practice charge. In an apparent shift in position, the University's director of collective bargaining services sent the following letter to the SUPA on October 1, 1981: SUPA and the University of California have exchanged initial bargaining proposals and each party has had an opportunity to review the proposals and to ask any questions which the proposals triggered. Your first letter to me on the subject of parking, dated March 23, 1981, conveyed your view that imminent parking rate increases at 99
UCLA would not apply to members of the unit UCLA would not apply to members of the unit represented by SUPA, because it would be represented by SUPA, because it would be necessary for the University to meet and necessary for the University to meet and confer with SUPA before implementing these confer with SUPA before implementing these increases. increases. I wrote to you on May 29, 1981, I wrote to you on May 29, 1981, taking issue with this assumption. At the taking issue with this assumption. At the time, I did not have SUPA's MOU proposal. time, I did not have SUPA's MOU proposal. Having now reviewed the proposal, I believe Having now reviewed the proposal, I believe a basis for meeting and conferring may a basis for meeting and conferring may exist. As you know, the University has for exist. As you know, the University has for many years implemented changes in parking many years implemented changes in parking fees from time to time in response to fees from time to time in response to changing costs of construction, finance and changing costs of construction, finance and operation of the parking system, and these operation of the parking system, and these changes have applied to peace officers as changes have applied to peace officers as well as to other employees. As I now well as to other employees. As I now understand your proposal, it is that peace understand your Sroposal, it is that peace officers should be exempted from all parking officers shoulde exempted from all parking charges. charges. If my understanding is correct, I If my understanding is correct, I would like to make it clear that the would like to make it clear that the University does not consider the proposal to University does not consider the proposal to be outside the scope of representation, and be outside the scope of representation, and is prepared to include it in the bargaining is prepared to include it in the bargaining process. process. (Emphasis added.) (Emphasis added. ) On February 22, 1982, the SUPA was informed that the On February 22, 1982, the SUPA was informed that the San Francisco campus was considering an increase in the monthly San Francisco campus was considering an increase in the monthly parking fee. The proposed increase for staff permits was from parking fee. The proposed increase for staff permits was from $22.00 to $25.00 per month. $22.00 to $25.00 per month. The SUPA was invited to discuss The SUPA was invited to discuss the increase, make comments, ask questions, or express concerns the increase, make comments, ask questions, or express concerns no later than Friday, March 5, 1982. no later than Friday, March 5, 1982. On February 26, 1982, the SUPA responded that this proposed On February 26, 1982, the SUPA responded that this proposed unilateral increase would be a violation of HEERA and that the unilateral increase would be a violation of HEERA and that the issue of parking fees was both a subject for bargaining and anissue of parking fees was both a subject for bargaining and an issue in this unfair practice charge. It ended by stating that issue in this unfair practice charge. It ended by stating that it anticipated that no increase would be applied to its members. it anticipated that no increase would be applied to its members. 10 10
On March 10, 1982, the University informed the SUPA that
its letter of February 22 had been sent to the SUPA by mistake.
On March 12, 1982, all Los Angeles campus staff were given
a memo ndicating proposed increases in parking fees for a memo6 indicating proposed increases in parking fees for
1982-83 as follows:
66No direct notification was made to the SUPA by the No direct notification was made to the SUPA by the
University about the proposal to increase parking fees at the University about the proposal to increase parking fees at the
Los Angeles campus until it was enclosed as part of a Los Angeles campus until it was enclosed as part of a
post-hearing exchange in correspondence on April 20, 1982 post-hearing exchange in correspondence on April 20, 1982
(discussed ante) . {discussed ante).
Current Fees
1981 - 1982 Proposed Fees
1982 - 1983
Faculty, Staff and Commuter
Student Permits $ 12.00/month $ 16.00/month
On-Campus Resident Permits $ 12.00/month $ 21. 00/month
Courtesy Permits $ 36.00/annual $ 48.00/annual
Emeriti Permits $ 12.00/annual $ 16.00/annual
Night Permits $100.00/annual $150.00/annual
Daily Sales $ 2.00/entry $ 3.00/entry
Meters $ 1.00/hour $ 1.00/hour
Administrative Charges
{lost card keys or
permits, etc.)
$ 5.00/item $ 5.00/item
They were invited to ask questions or comment in writing no
later than Friday, April 2, 1982.
Currently, proposals for parking fee increases are in
progress at the Los Angeles and San Francisco campuses. At
Los Angeles the proposal calls for an increase in staff parking
11 11As an attachment to a letter to PERB regarding this case, the University sent notification to SUPA on April 20, 19827 regarding the following: fees from $12 per month to $16 per month to be effective July 1, 1982. At San Francisco the proposal would increase staff parking fees from $21 per month to $24 per month effective July 1, 1982. 1. A proposed increase in parking fees at the San Francisco campus of $3.00/month for Type A and Type G parking permits effective July 1, 1982. 2. Possible increases at the Irvine campus as described in the Leon Schwartz letter to faculty and staff dated March 18, 1982 (copy of letter omitted). 3. Proposed parking fee increases at the Los Angeles campus as described in the letter to all UCLA academic and staff employees in the March 12, 1982 memo (supra, p. 11) • 4. Possible increases in parking fees at the Riverside and San Diego campuses. No details are yet available. This communication from the director of collective bargaining services concludes: The University's position on parking fees charged to employees in the SUPA bargaining unit is as follows: In the past, fees for members of the peace officer bargaining unit 7This document was filed after briefs were received in This document was filed after briefs were received in this matter. this matter. 12 12
have been the same as for other staff personnel, and changes in fees have applied to all staff personnel. The University proposed to continue this policy, which is embodied in the parking fee proposal that we made to you on September 9, 1981. We are prepared to continue negotiating with you on this proposal and on your alternate proposal. Until and unless we reach agreement on a change in policy, we intend to continue the present policy, i.e., occasional parking fee changes will apply to all staff personnel, including members of the peace officer bargaining unit. ISSUES 1. Whether parking fee increases are within the scope of bargaining. 2. If so, whether the Regents of the University of California failed and refused to meet and confer in good faith on the issue of increases in parking fees. 3. WWhether or not the issue is moot because the parties are meeting and negotiating on the issue of parking fees. Conclusions of Law Amount of Parking Fee Within Scope SUPA has charged the University wi1;:h violation of section 357l(a) and (c). Section 357l(a) and ;c) provide: It shall be unlawful for the higher education employer to: (a) Impose or threaten to impose reprisals on em~loyees, to discriminate or threaten to discriminate against employees, or otherwise 13
to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed to them by this chapter. (c) Refuse or fail to engage in meeting and conferring with an exclusive representative. Section 3570 imposes the duty on the higher education employer to engage in meeting and conferring with the employee organization selected as exclusive representative of an appropriate unit on all matters within the scope of representation. Scope of representation is defined by section 3562(q) as follows: (q) For purposes of the University of California only, "scope of representation" means, and is limited to, wages, hours of employment, and other terms and conditions of employment. The scope of representation shall not include: (1) Consideration of the merits, necessity, or organization of any service, activity, or program established by law or resolution of the regents or the directors, except for the terms and conditions of employment of employees who may be affected thereby. (2) The amount of any fees which are not a term or condition of employment. (3) Admission requirements for students, conditions for the award of certificates and degrees to students, and the content and supervision of courses, curricula, and research programs, as those terms are intended by the standing orders of the regents or the directors. 14 . . . . . . . . . . .
(4) Procedures and policies to be used for the appointment, promotion, and tenure of members of the academic senate, the procedures to be used for the evaluation of the members of the academic senate, and the procedures for processing grievances of members of the academic sena,te. The exclusive representative of members of the academic senate shall have the right to consult and be consulted on matters excluded from the scope of representation pursuant to this paragraph. If the academic senate determines that any matter in this paragraph should be within the scope of re~resentation, or if any matter in this paragraph is withdrawn from the responsibility of the academic senate, the matter shall be within the scope of representation. All matters not within the scope of representation are reserved to the employer and may not be subject to meeting and conferring, provided that nothing herein may be construed to limit the right of the employer to consult with any employees or employee organization on any matter outside the scope of representation. In Social Services Union v. Board of Supervisors (1978) 82 Cal.App.3d 498; 147 Cal.Rptr. 126, the California Court of Appeals was faced with the issue of whether a county board of supervisors violated the duty to meet and confer under Meyers-Milias-Brown8 when it unilaterally adopted a resolution increasing monthly parking fees. The Court of 8Meyers-Milias-Brown is codified at Government Code section 3505 et seq. 15 15
Appeals looked to federal precedent9 to determine whether an increase in parking fees was within the scope of bargaining. Cases dealing with increases in the fees charged for in-plant food services by employers were relied upon as analogous to the issue of increases by the employer in parking fees. At the precise moment in history when Social Workers was decided, the National Labor Relations Board (herein NLRB) had steadfastly adhered to the position that increased in in-plant food prices were negotiable, construing wages and conditions of employment (Ford Motor Co. (1977) 230 NLRB 101 (95 LRRM 1397]; Seattle First National Bank (1969) 176 NLRB 691 (73 LRRM 1549]; Ladish Co. (1975) 219 NLRB No. 60 (89 LRRM 1653]; Westinghouse Electric Corp. (1966) 156 NLRB 1080 (61 LRRM 1165]; McCall Corp. (1968) 172 NLRB No. 55 (69 LRRM 1187]; Package Machine Co. (1971) 191 NLRB 268 (77 LRRM 1456] .) 9The Court of Appeals followed Fire Fighters Union Local 1186 v. City of Vallejo, (1974), 12 Cal.3d 608, [526 P.2d 91i, I16 Cal. Rptr. 507] in which it was held that in interpreting in interpreting state labor legislation, it is a~propriate to look to applicable federal precedent. Cited with approval by the Board, in Sweetwater Union High School District, EERB Decision No. 4, 11/23/76, (1 PERC 10]; Anaheim Union High School District (10/28/81) PERB Decision No. 177. Four federal circuit courts of appeal had provided a narrower interpretation, frequently refusing enforcement of NLRB Board orders and applying a standard requiring that a matter must "materially" or "significantly" affect terms and 16 16
conditions of employment to be a mandatory subject for collective bargaining. Matters held to be de minimus were outside of the scope of bargaining (Seattle First National Bank v. NLRB (CA9 1971) 444 F.2d 30 [77 LRRM 2634] enf. denied.; Westinghouse Electric Corp. v. NLRB (CA4 1966) 369 F.2d 891 [64 LRRM 2001] enf. denied.; McCall Corp. v. NLRB (CAl 1972) 457 F.2d 936 [79 LRRM 2948] enf. denied.; NLRB v. Ladish Co. (CA? 1976) 538 F.2d 1267 [92 LRRM 3577] enf. denied (the 7th Circuit expressly agreeing with the 4th Circuit and the 1st Circuit). Subsequent to Social Workers, supra, the United States Supreme Court dealt with the issue in Ford Motor Co. v. NLRB (1979) 441 U.S. 488 [101 LRRM 2222]. Noting that the NLRB had consistently adhered to the view that in-plant food prices were among terms and conditions of employment, and that Congress had assigned to the NLRB the primary task of construing those terms, the U.S. Supreme Court held that the judgment of the NLRB was entitled to considerable deference, that its views were not an unreasonable and unprincipled construction and, therefore, should be accepted and enforced. The federal Courts of Appeal cases upon which Social Workers, supra, relied have been superseded by the U.S. Supreme Court's decision in Ford Motor Co. which upheld the NLRB's position that increases in in-plant food prices is a mandatory subject of bargaining within the term "terms and conditions of 17 17
employment." Likewise, with all due respect, Social Workers, supra, is not binding precedent. The analogy between increases in in-plant food prices and increases in parking fees, however, remains valid. The availability of parking and its cost are matters of concern to employees. Terms and conditions under which parking is available is plainly ,germane to working conditions. Further, the University is not in the business of selling parking spaces. Thus the cost of parking is not among the "managerial decisions" at the "care of entreprenerial control." (Ford Motor Co., supra.) Meeting and conferring on this subject matter does not usurp managerial decision making, it merely insures that the University and SUPA work together to establish mutually satisfactory terms and conditions of employment. 10 Based on Ford Motor Co., supra, it is foundemployment. 10 that the increase in parking fees is a matter within the scope of representation as defined in section 3562(q). lOThis reasoning comports with the Board's rP.asoning in Anaheim Union High School District, supra, p. 16, in which the Board sets forth the test for interpretation of scope issues under the Educational Employment Relations Act (Government Code section 3540 et seq.), a narrower scope of representation, as follows: Failure to Meet and Negotiate Factually, the past practice has been for the University to apply parking fee increases to all employees consistently on a 18 ••. a subject is negotiable even though not specifically enumerated if (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of 18
campus by campus basis. SUPA became the exclusive representative for peace officers in August 1980. SUPA learned of proposed increases for 1981-82 in January 1981 and made a formal demand to meet and negotiate on that issue on March 13, 1981. On April 13, 1981, the University informed SUPA that the proposed increases would not apply to the peace officer unit. On May 29, 1981, the University revised its position and informed SUPA that the increase would apply to the peace officer unit, that the issue was not within scope, and indicated a willingness to consult. SUPA's June 12 response requested assurances that the University would meet and confer on the issue before June 22, 1981 or it would file an unfair practice charge. The charges were filed on June 26 and 29, 1981. SUPA argues that this factual pattern constitutes a unilateral change on a matter within the scope of representation. employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolvin~ the conflict, and (3) the employers obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the District's mission. (Citation omitted.) 19 19
The University argues that the fee increases were a continuation of a long established practice and, thus, not a unilateral change. In support of its position, the University cites Pajaro Valley Unified School District (5/22/78) PERB Decision No. 51, and by analogy, Davis Unified School District (2/22/80) PERB Decision No. 116; San Francisco Community College District (6/8/79) PERB Decision No. 94. The University is correct that changes which are consistent with regular and consistent past patterns of changes in conditions of employment do not constitute a unilateral change. However, those cases on which it relies are distinguishable from the instant case. Davis, supra, involved the freezing of step and column increases on the existing salary schedule; in San Francisco, supra, the District froze salaries and yearly and career increments on the existing salary schedule; in San Mateo, supra, the District reduced the existing salary schedule by 6.25 percent, in Pajaro Valley, supra, the District continued a practice that it pay an agreed upon sum while employees paid the amount of any increases in premium for health and welfare benefits until negotiations were completed, whereupon, the District compensated employees retroactively based on the agreement reached. The distinguishing feature of the instant case is that the District did not impose a fee from a schedule already in existence. Rather, it unilaterally determined the amount of an 20 20
increase, rejected a request to bargain and implemented it. Regardless of its consistent and regular past practice in applying the same increases to all employees, the University was not at liberty to unilaterally determine the amount of the increase and reject a request to bargain once an exclusive representative had been selected. It is noted that the consistent and regular past practice of the University has been to pay the same salary and fringe benefit increases to peace officers as it paid to other employees (supra, p. 8). Once an exclusive representative was selected, the University paid increases in fringes only by mutual agreement. It has not yet paid the increase in wages paid to all other employers to the employees in the peace officer unit. This is tacit recognition by the University that it cannot unilaterally determine the amount of increase in wages once an exclusive representative is selected. Likewise, it cannot unilaterally determine the amount by which it will increase parking fees once an exclusive representative has been selected. 21 This unilateral change by the University constitutes a per se violation of section 357l(c). (Davis, supra; San Francisco, supra; San Mateo, supra; NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177] .) Even without this unilateral change, the University would have breached its duty to meet and confer. Section 3570 imposes the duty to meet and confer in good faith on matters 21
within the scope of representation. Increases in parking fees have been found to be within the scope of representation: SUPA made a timely demand to meet and confer on proposed increases. The University responded that proposed increases would not be applied to employees in the unit represented by SUPA. One month later, the University reversed its position, stating increases would apply to those employees and that increases in parking fees were not matters within the scope of representation. SUPA renewed its demand to meet and confer. Without responding to that demand, the University implemented the proposed increases. In this factual pattern, it cannot be said that the University met its obligation to meet at reasonable times and confer in good faith with respect to matters within the scope of representation (section 3562(d)). The University rejected SUPA's demand to meet and confer. It neither met nor conferred. Rather, it took the position that the subject matter was outside the scope of representation and offered to discuss it. In Katz v. NLRB, supra, the United States Supreme Court stated: offered to discuss it. In Katz v. NLRB, supra, the United States Supreme Court stated: The duty "to bargain collectively" enjoined by Section 8 (a) (5) is defined by Section 8(d) as the duty to "meet*** and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Clearly, the duty this defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact--"to meet*** and confer"--about any 2222
of the mandatory subjects.11 A refusal to negotiate in fact as to any subject which is within Section 8(d), and about which the union seeks to negotiate, violates Section 8(a) (5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. Based on the foregoing, it is found that the University violated section 357l(c) by failing and refusing to meet and negotiate on the subject of increases in parking fees. In addition, this same conduct concurrently violated section 357l(b) by denying SUPA its statutory right as an exclusive representative to represent unit members in their employment relations with the University. (Section 3570.) Further, the University's failure to meet and negotiate with SUPA interfered with employees because of their exercise of representational rights in violation of section 357l(a). Collective negotiations is the cornerstone of the HEERA. To this end, employees have the right to select an exclusive representative to meet and negotiate with the employer on their behalf (section 3565). (San Francisco Community College District, supra.) Mootness The University argues that the issue is moot because it has decided to negotiate the issue of parking fees and has in fact been doing so since June 1981. 23 Factually, the University took the position that increases 23
in parking fees were not within the scope of representation on May 29, 1981. Increases were implemented effective July 1, 1981. Meanwhile, on June 18, 1981, SUPA presented its initial proposal which contained a provision for no parking fees on June 18, 1981. On October 1, 1981, the University's director of collective bargaining services wrote to SUPA and indicated that as he understood SUPA's proposal, it would exempt peace officers from all parking charges. The University did not consider this proposal to be outside the scope of representation. After briefs were filed in this matter, the University communicated with SUPA via an attachment to a document filed herein that there were proposals for increases for 1982-83 and that the University was prepared to negotiate with SUPA on its proposal (no change from current practice) or SUPA's proposal (no charge for parking). The record reflects constantly shifting positions by the University over a lengthy period which includes one implemented annual increase and one proposed annual increase. At no time does the University recognize a duty to meet and confer on proposed increases. Its latest communication on April 20, 1982 gives notice of proposed increases and offers to meet and confer on the two extremes, all or nothing. 24 Based on this factual record, it is clear that the issue is not moot. The duty is to meet and negotiate on proposed 24
increases as well as proposal for no fee or full fee and cannot be limited by the proposals made in a setting in which the University's position was that increases in parking fees were outside the scope of representation. REMEDY The PERB has broad authority to remedy unfair practices. Section 3563.3 provides: The board shall have the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including, but not limited to, the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. It is appropriate to order that the University cease and desist from failing and refusing to meet and confer in good faith with SUPA on the subject of increases in parking fees and that it cease and desist from the derivative violations of interfering with and restraining employees because of the exercise of rights guaranteed by HEERA (the right to be represented by an exclusive representative), and denying to employee organizations rights guaranteed to them by HEERA (the right to meet and confer on matters within the scope of representation). The more difficult issue in framing a remedy is whether it is appropriate to require that the University "make whole" for the increase it implemented without first meeting and conferring. SUPA argued for the "make whole" remedy based on 25 25
the premise that this was a unilateral change for which "make whole" is the ordinary remedy. The University argues that "make whole" is not appropriate because it simply implemented the increases for all employees as had been its consistent and regular past practice. It cites Ford Motor Co., supra, in which the U.S. Supreme Court, addressed the employer's argument that a bargaining order would result in unnecessary disruption because any small change in price or service would trigger the obligation to bargain, a particularly acute situation where several unions are involved, possibly requiring endless rounds of negotiations. The Court noted that the order it was affirming did not require bargaining prior to implementation of the increases in food prices. [i]t is sufficient compliance with the statutory mandate if management honors a specific union request for bargaining about changes that have been made or are to be made. (Citations omitted, emphasis added.) Indeed, this has been the approach of the NLRB where a matter held to be within the scope of representation involved numerous small increases and numerous exclusive representatives. In Westinghouse Electric Corp., supra, the NLRB reasoned: Although we agree with the Trial Examiner that in the circumstances of this case the subject of cafeteria food prices was a mandatory subject of bargaining, it does not follow that Respondent was required to bargain about every proposed change in food prices before putting such change in effect. Because of the nature of the 26 26
retaurant business--the constant and frequently sharp fluctuation in the cost of food ingredients, the large number of individual items sold, and changes in menus--it is impracticable to require consultation with a union before each change in the price of any of the products sold. It is sufficient compliance with the statutory mandate, we believe, if management honors a specific union request for bargaining about changes made or to be made. The NLRB has continued to adhere to that view (Ladich Co., supra; Ford Motor Co., supra). In the instant case, official notice is taken that the University is required to meet and confer with only one other exclusive representative at one campus only. SUPA is the only system wide exclusive representative. In addition, parking fee increases are not the subject of constant and shifting sharp fluctuations in costs, large numbers of items sold, or changes in menu. Indeed, the pattern that emerges from the facts is that one annual increase is proposed mid-year and implemented at the start of the new fiscal year, with annual increases at some but not all of the 12 sites where the University provides parking for a fee. Thus, the reason underlying the NLRB's exceptional approach to the obligation to bargain in food services cases simply does not exist in the matter of University parking fees. Additionally, the University has failed to meet its obligation to meet and negotiate and has thereby reaped the 27 27
profits from one year's increase and is verging on implementing increases for a second year. If no "make whole" remedy is available, the wrong-doer may profit while the recipient of the wrongdoing is left to its efforts to bargain back what has already been taken. Thus a bargaining order is inadequate to right the wrong. The University will therefore be ordered to return to the status quo ante as it existed prior to imposition of the parking fee increase effective July 1, 1981, to pay to employees in the unit represented by SUPA the amount of any increases collected from them together with interest at the lawful rate,1 and to cease and desist from implementing a further increase to employees in the unit represented by SUPA until it has exhausted its obligation to meet and confer. llsuPA seeks interest at the Internal Revenue Service's "adjusted prime rate" based on NLRB precedent. However, the California Constitution and California law determine the applicable rate for administrative orders under California Law. (See the Board's discussion under remedy in San Francisco, supra, at p.20.) It is also appropriate to order the University to post a notice incorporating the terms of the order. Posting of such a notice will provide employees with notice that the University has acted in an unlawful manner and is being required to cease and desist from this activity and to restore the status quo. It effectuates the purposes of the HEERA that employees be n h 28 28
informed of the resolution of the controversy and will announce the University's readiness to comply with the ordered remedy. See Placerville Union School District (9/18/78) PERB Decision No. 69. In Pandol and Sons v. ALRB AND UFW (1979) 98 Cal.App.3d 580, 587, the California District Court of Appeal approved a posting requirement. The U.S. Supreme Court approved a similar posting requirement in NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 514]. PROPOSED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, and pursuant to Government Code section 3563.3, it is hereby ordered that the Regents of the University of California and its representatives shall: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and confer in good faith with the Statewide University Police Association by taking unilateral action on matters within the scope of representation, as defined by section 3562(q), and specifically with respect to the increase in fees charged for parking, 2. Denying the Statewide University Police Association its right to meet and confer on behalf of unit members by failing and refusing to meet and negotiate about matters within the scope of representation, 29 29
3. Interfering with employees because of their exercise of their right to select an exclusive representative to meet and negotiate with the Regents of the University of California on their behalf by unilaterally changing matters within the scope of representation without meeting and negotiating with the exclusive representative. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE PURPOSES OF THE EERA: EFFECTUATE THE PURPOSES OF THE EERA: 1. Rescind the increase in parking fees effective July 1, 1981 as applied to employees in the unit represented by the Statewide University Police Association and return to the status quo ante in effect prior to the unlawful unilateral change and retain the status quo ante unless and until the parties exhaust the statutory duty to meet and confer or agree otherwise by their adoption of a negotiating agreement. 2. Pay to employees in the unit represented by the Statewide University Police Association the difference between the parking fees collected since July 1, 1981 and the amount they would have paid but for the increase effective that date, together with interest at the lawful rate. 3. Within five (5) workdays after the date of service of a final decision in this matter, post at all work locations where notices to employees in the unit represented by the Statewide University Policy Association customarily are 30 30
d t 1 lawful rate,1 and to cease and desist from implementing a further increase to employees in the unit represented by SUPA until it has exhausted its obligation to meet and confer. profits from one year's increase and is verging on implementing increases for a second year. If no "make whole" remedy is available, the wrong-doer may profit while the recipient of the wrongdoing is left to its efforts to bargain back what has already been taken. Thus a bargaining order is inadequate to right the wrong. The University will therefore be ordered to return to the status quo ante as it existed prior to imposition of the parking fee increase effective July 1, 1981, to pay to employees in the unit represented by SUPA the amount of any increases collected from them together with interest at the lawful rate, ll an llsuPA seeks interest at the Internal Revenue Service's "adjusted prime rate" based on NLRB precedent. However, the California Constitution and California law determine the applicable rate for administrative orders under California Law. (See the Board's discussion under remedy in San Francisco, supra, at p.20.) It is also appropriate to order the University to post a notice incorporating the terms of the order. Posting of such a notice will provide employees with notice that the University has acted in an unlawful manner and is being required to cease and desist from this activity and to restore the status quo. It effectuates the purposes of the HEERA that employees be n n h 28 28
title 8, part III, section 32135. Any statment of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall be filed with the Board itself. See California Administrative Code, title 8, part III, sections 32300 and 32305, as amended. Dated: May 17, 1982 Sharrel J. Wyatt Administrative Law Judge 32 32
ATTACHMENT A 10/13/80 UNIVERSITY OF CALIFORNIA - PARKING OPERATIONS Summary of Parking Fee Schedules Fiscal Year 1980-81 Fiscal Year 1980-81 Annual Permit Rate (1) Annual Permit Rate(l) Cam;EUS Faculty Staff Students Daily Fee Meter Per Hour Berkeley $180.00 $180. 00 $180.00 $140.00(2) or 180.00 $ .75 $.25 Davis 48.00 18.00(6) 6) 48.00 18. 00 ( 6) 18 . 00 (6) 36.00 36 .00 24. 00 (2 24.00( )2) 18.00 18 . 00 ((6) 6) .50 .25(6) . 50 6) . 25 ( .25 Sacramento Medical Center 72.00 72.00 54.00 2.00(3) 3) 2. 00 ( .25 Irvine 60.00 60.00 60.00 42.00(2) 2) 42. 00 ( .25 Irvine Medical Center 180.00 60 .00 ( (4) 4) 180.00 60 . 00 ((4) (5) 1. 50 60.00 1.50 .25 Los Angeles 108. 00 108.00 108. 00 2.00 1.00 Riverside 42.00 42.00 42.00 .50 San Diego 84.00 72.00 60.00 1.00 .10; .25 San Diego Medical Center 180.00 144.00 1.00 San Francisco 216.00 216.00 12.00 (6) 12 . 00 1.50 .50 Santa Barbara 48.00 48.00 48.00 .50 Santa Cruz 72.00 72.00 66.00 69.00 69 .00 (7) .75 .25 Notes: (1) Lower rates are charged for remote lots, carpools, evening hours, short-time periods, etc. (2) Residence Halls parking only (10 month). (3) $.25 per hour with $2.00 maximum for 24 hours. (4) $180/year fee for parking structure which is preferentially restricted to physicians, house staff, department chairs, and management; $60/year fee for surface lots. (5) $.25 per hour with $1.50 maximum for 24 hours. IN management; $60/year fee for surface lots. (6) Night parking only. 33 10/13/SC 33
ATTACHMENT B 7/1/8] UNIVERSITY OF CALIFORNIA - PARKING OPERATIONS Summary of Parking Fee Schedules Fiscal Year 1981-82 Cam;eus Faculty Annual Permit Rate ( 1) Staff Students Daily Fee Meter Per Hour Berkeley $180.00 $180.00 $140.002 or 180.00 $ .75 $.25 Davis 60.00 21.006 60.00 21.006 48.00 36.002 21. 005 .50 .256 .25 Sacramento Medical Center 72.00 72.00 54.00 2.003 .25 Irvine 72.00 72.00 72.00 54.002 1.00 .25 Irvine Medical Center 240.00 144.004 240.00 144.004 144.00 1.505 .25 Los Angeles 144.00 144.00 144.00 2.00 1.00 Riverside 42.00 42.00 42.00 .50 San Diego 10 8. 00 84.00 72.00 1.00 .10; .25 San Diego Medical Center 216.00 180.00 1.00 San Francisco 252.00 252.00 12.006 1.50 .50 Santa Barbara 60.00 60.00 60.00 .75 Santa Cruz 72.00 72.00 66.00 69.007 .75 .25 Notes: 1 Lower rates are charged for remote lots, carpools, evening hours, short-time periods, etc. 2 Residence Halls parking only (10 month). 3 $.25 per hour with $2.00 maximum for 24 hours. 4 $240/year fee for parking structure which is preferentially restricted to physicians, house staff, department chairs, and management; $144/year fee for surface lots. 5 $.25 per hour with $1.50 maximum for 24 hours. 6 Night parking only. 34 7/1/8] 34
3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATEWIDE UNIVERSITY POLICE
ASSOCIATION,
Charging Party,
Ve
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
STATEWIDE UNIVERSITY POLICE
ASSOCIATION,
Charging Party,
Ve
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Appearances: Edward M. Opton, Jr., Attorney for the Regents of
the University of California.
ee ee ane et ae ae Nene ee ee ee et Se Set et et ee et ee eet ee et eet ee ee ee
Case No.
S~CE-6-H
PERB Decision No.
November 14, 1983
Case No.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
LA-CE-47-H
BURT, Member: These consolidated cases are before the
Public Employment Relations Board (PERB or Board) on exceptions
filed by the Regents of the University of California (UC) to a
proposed decision of an administrative law judge (ALJ). fMThe
356-H
ALJ, assessing charges filed by the Statewide University Police
Association (SUPA), found that UC violated subsections 357l(a),
(b) and (c) of the Higher Education Employer-Employee Relations
Act (HE~RA) by refusing to negotiate and by unilaterally
raising the fees paid by its police officer employees for
parking in lots operated by UC.l SUPA filed no exceptions.
2
We have considered the exceptions filed by UC in light of
the record as a whole, and hereby affirm the result reached by
the ALJ, attached hereto and incorporated by reference herein,
only insofar as it is consistent with the following discussion.
FACTS
We have reviewed the ALJ's findings of fact in light of
UC's exceptions and the record as a whole. We find them free
lHEERA is codified at section 3560 et seq. of the
Government Code. Subsections 357l(a), (b) and (c) provide as
follows:
It shall be unlawful for the higher
education employer to:
(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.
(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.
2
of prejudicial error.2
3
of prejudicial error. 2
To briefly summarize, since August 19, 1980, and at all
times relevant herein, SUPA has been the exclusive
representative of a unit consisting of all police officers
employed by UC. During the period relevant to this case, SUPA
was the only exclusive representative of UC employees.
The UC parking system is supported entirely by user fees.
It is owned and operated by UC and utilized by staff, students,
and the public. Police officers employed by UC are not
required to drive to work. There is insufficient non-UC
parking at or near the work location to accommodate those
employees who choose to drive to work. employees who choose to drive to work.
On January 30, 1981, all UCLA employees received a memo
indicating that an increase in parking fees would be necessary
I for the 1981-82 fiscal year. On March 13, 1981, SUPA gave
written notification to UC's director of collective bargaining
services of its belief that parking fees were within scope artd
that any unilateral change would violate HEERA.
On April 13, 1981, UC responded that the proposed increase
would not apply to the unit employees represented by SUPA. On
2we note that the ALJ's findings of fact, gleaned from
stipulations of the parties, were served upon SUPA and UC for
comment prior to issuance of the decision. At that time, UC's
comment was limited to seven nonsubstantive suggestions, none
of which were repeated by UC in its statement of exceptions to
the proposed decision.
3
4
May 29, 1981, however, it indicated that any such increase
would apply to the police officers in the unit. It also
advised SUPA that, in UC's view, the parking fee issue was not
within scope.
On June 12, 1981, SUPA informed UC that it would file
unfair practice charges regarding UC's refusal to negotiate
parking fees unless UC promptly indicated its willingness to do
so. On June 16, 1981, the UC Davis police chief sent Davis
police a memo indicating that campus police would be charged
the increased parking rate, as would other campus employees,
and that the director of collective bargaining for UC did not
consider the issue to be within scope.
On June 18, 1981, SUPA presented its initial written
proposal on parking fees to UC, asking that UC provide adequate
free parking for all unit employees. UC subsequently proposed
that it would continue to provide parking to unit employees on
the same basis as it provided parking to other (non-unit)
employees.
The parties stipulated that they have been engaged in the
collective negotiating process since June of 1981. However, no
agreement has been reached on parking.
On July 1, 1981, UC implemented a series of parking fee
increases systemwide, and required the represented police
officers to pay them.
On October 1, 1981, UC, by letter from Thomas Mannix,
Director of Collective Bargaining Services, informed SUPA that:
Subsequently, in the spring of 1982, UC notified SUPA of
its intent to impose a variety of different parking rate
increases at its various parking facilities on July 1, 1982.
DISCUSS ION
5
Director of Collective Bargaining Services, informed SUPA that:
As I now understand your proposal, it is
that peace officers should be exempted from
all parking charges. If my understanding is
correct, I would like to make it clear that
the University does not consider the
proposal to be outside the scope of
representation, and is prepared to include
it in the bargaining process.
Thus, UC acknowledged the negotiability of parking fees
explicitly for the first time on October 1, 1981 •.
The ALJ found that the amount of parking fees charged
employees in UC-operated lots is a subject within scope under
HEERA. She found that UC violated its negotiating obligation.
by, inter alia, unilaterally raising the parking fees paid by
SUPA's constituents. on July 1, 1981, and additionally by
placing unreasonable limitations on the breadth of the ongoing
negotiations regarding fees. To remedy such violations, she
ordered UC to cease and desist from refusing to negotiate in
good faith, to roll back the parking rates to their
pre-July 1981 level for SUPA-represented employees, to refund
the fees collected in excess of that amount, and to. post an
appropriate notice.
For purposes of the University of California
only, "scope of representation" means, and
is limited to, wages, hours of employment,
and other terms and conditions of
employment. The scope of representation
shall not include: shall not include:
6
SUPA filed no exceptions. UC excepts to the finding that
parking fees are generally within the scope of representation
as set forth at subsection 3562 (q)3 due to3 the proviso as set forth at subsection 3562(q) ~ue to the proviso
contained at subsection 3562(q) (2) removing certain fees from
3subsection 3562(q) provides as follows:
(1) Consideration of the merits,
necessity, or organization of any
service, activity, or program
established by law or resolution of the
regents or the directors, except for
the terms and conditions of employment
of employees whornay be affected
thereby.
(2) The amount of any fees which are
not a term or condition of employment.
(3) Admission requirements for
students, conditions for the award of
certificates and degrees to students,
and the content and supervision of
courses, curricula, and research
programs, as those terms are intended
by the standing orders of the regents
or the directors.
(4) Procedures and policies to be used
for the appointment, promotion, and
tenure of members of the academic
senate, the procedures to be used for
the evaluation of the members of the
academic senate, and the procedures for
processing grievances of members of the
6
7
scope. UC further argues that even if parking fees are within
scope as a threshold matter, it did not change the dynamic
status quo regarding parking fees, but rather simply continued
its preexisting practice of imposing annual across-the-board
fee increases, and thus that no unilateral change occurred.
Additionally, UC excepts to the finding that it has failed to
negotiate in good faith regarding parking fees since July of
1981 by impermissibly limiting the breadth of negotiations.
Finally,"UC excepts to the ALJ's make-whole remedy requiring it
to roll back parking fees to the pre-July 1981 level and refund
the excess amount paid by the members of the peace officer unit.
academic senate. The exclusive
representative of members of the
academic senate shall have the right to
consult and be consulted on matters
excluded from the scope of
representation pursuant to this
paragraph. If the academic senate
determines that any matter in this
paragraph should be within the scope of
representation, or if any matter in
this paragraph is withdrawn from the
responsibility of the academic senate,
the matter shall be within the scope of
representation.
All matters not within the scope of
representation are reserved to the employer
and may not be subject to meeting and
conferring, provided that nothing herein may
be construed to limit the right of the
employer to consult with any employees or
employee organization on any matter outside
the scope of representation.
7
Although it initially contended that parking fees are not
in scope under HEERA's inclusory scope language, 11 ••• wages,
hours of employment, and other terms and conditions of
employment," UC does not, by its exceptions, reassert that
contention. The ALJ found that parking fees are generally
within the ambit of "terms and conditions of employment," based
upon an analogy to private sector cases holding that
employer-provided food service prices are mandatorily
negotiable. See Ford Motor Co. v. NLRB (1979) 441 U.S. 488
[101 LRRM 2222] and other cases cited by the ALJ at pp. 15-17,
slip opinion. In Ford Motor Co., id., the Supreme Court noted
that food pricing could lead to substantial disputes, and that
the mediatory influence of collective bargaining would foster
peaceful resolution of such disputes. It noted the "trend of
industrial practice" to provide in-plant culinary services in
response to "increasing employee concern over the issue,"
without reference to the existence of reasonable alternatives
to such in-plant food services.
as for the argument that in-plant food
prices and service are too trivial to
qualify as mandatory subjects, the Board
(NLRB) has a contrary view, and we have no
basis for rejecting it ••• we accept the
Board's view that in-plant food prices and
service are conditions of employment and are
subject to the duty to bargain.
8
The court found that food prices were within scope because
such prices "vitally affect" terms and conditions of
employment, stating, at 101 LRRM 2227, that
8
9
See also Social Services Union v. Board of Supervisors (1978)
82 Cal.App.3d 498 [147 Cal.Rptr. 126], wherein the Court of
Appeals found employer-provided food services to be equivalent
to employer-provided parking for purposes of determining
whether parking services were within scope under the similar
language of the Meyers-Milias-Brown Act governing labor
relations in California local government.
For the reasons set forth in the ALJ's decision, we affirm
the finding that the amount of fees charged to employees for
employer-provided parking is a matter within the scope of
representation under HEERA.
UC contends that the proviso language of subsection
3562(q) (2) of HEERA, excluding from scope" •• the amount of
any fees which are not a term or condition of employment"
excludes the parking fees at issue herein from scope. UC
argues that parking fees for police officers are not a term or
condition of employment because there is no requirement that
employees utilize their personal vehicles for commuting, and
thus they are not required to use UC's parking facilities. UC
acknowledges that the phrase "term or condition of employment"
is a labor relations term of art, which encompasses many
matters of central concern to employees regarding their working
~ life, whether or not such matters are required aspects of the
employment relationship. However, it argues that the phrase
"term or condition of employment" as used in subsection
10
3562(q) (2) must have a different meaning than the general labor
relations meaning employed in the inclusory language of
subsection 3562(q). According to UC, the Legislature must have
intended that, when used in the exclusionary proviso language
of subsection 3562(q) (2), the phrase referred to fees which are
paid by all employees as a requirement of their job. If not,
subsection 3562(q) (2) would be a nullity, because it would
duplicate the meaning of the inclusory language which precedes
it.
We reject the construction of the proviso language of
3562(q) (2) urged by UC, as it ascribes an unduly narrow
definition to the phrase "terms or conditions of employment."
Such a construction requires the incongruous inference that the
Legislature intended that the same phrase have two entirely
different meanings, even though it is used in the same context,
within the same section of the same statute. Contrary to UC's
contention, we find that the proviso language of subsection
3562(q) (2) was intended to accomplish precisely what it states,
to wit, to remove from scope fees which are not terms and
conditions of employment within the labor relations meaning of
that term. The proviso serves to dispel the contention that
any fee paid by employees to the higher education employer,
even those for matters not even remotely related to the
employment relationship, are~~ within scope.
10
In a related argument, UC contends that the parking fees at
issue herein are not a term or condition of employment since
alternative modes of transportation exist for employees.
According to UC, this differentiates parking fees from the food
service costs at issue before the U.S. Supreme Court. in Ford
Motor Co., supra, and cases relied upon therein and cited by
the ALJ.
11
The Board rejects UC's contention that the cited National
Labor Relations Board (NLRB) food service cases turn on whether
alternatives existed to the vending services available
in-house. In Ford Motor Co. v. NLRB, supra, the Supreme Court
did point out that, in the plant in question, there appeared to
be no reasonable alternative to the company cafeteria.
However, it did not indicate that the NLRB' s consistent holding
that" .•• in-plant food prices are among those terms and
conditions of employment ••• about which the employer and
union must bargain ••• " would only be affirmed in those cases
in which it was shown that there existed no reasonable
alternative to in-house culinary services, and in which
employees were thus "captive consumers" of such services.
Rather, it cited with approval a series of NLRB cases in which
the "captive consumer no reasonable alternative" situation
did not exist. Thus, at fn. 6, the Court cited with approval,
inter alia, McCall Corporation (1968) 172 NLRB 540, 546 [69
LRRM 1187], enforcement denied (4th Cir. 1970) 432 F.2d 187 [75
. ..
11
LRRM 7273], wherein the NLRB affirmed its trial examiner's
finding that the fact that alternative.eating facilities are
available is not determinative or in itself sufficient to
remove the issue of cafeteria pricing from.scope. Similarly,
in another cited case, Package Machinery Co •. ( 1971) 191 NLRB
268 [77 LRRM 1456], enforcement denied (1st Cir. 1972) 457 F.2d
.936 [79 LRRM 2948], food prices were held within scope although
severa1~off-plant restaurants were available and were used by
employees as alternatives to in-plant facilities. In Ladish
Co. (1975) 219 NLRB 355, the NLRB found that "brown-bagging it"
was a viable alternative, but nonetheless held that vending
machine prices were a mandatorily-negotiable item.
UC argues for the first time by its exceptions that, as a
matter of fact, it is in the business of providing parking, and
thus that it should be free to exercise unfettered discretion
as to the price of its product.
If UC had demonstrated that it was primarily in the
-business of providing parking, we might be persuaded that it
enjoys the managerial prerogative to price its "product."
Contrary to UC's assertion, .common sense dictates that UC
exists primarily for the purpose of education and research for
12
machine prices were a mandatorily-negotiable item.
We find, in keeping with the above, that the amount of fees
charged to employees for employer-provided parking is a subject
within thP. scope of representation under HEERA, whether or not
alternative methods of commuting are available to employees.
..
12
the benefit of the people of the State Df California and not as
a purveyor of parking. No evidence was presented which would
indicate that it depends upon revenues from parking for its
continued existence, nor was there any showing that it derives
any profit from the parking enterprise.4any profit from the parking enterprise. 4
Because we cannot conclude, based upon any evidence
properly befo.re us, that the operation of parking facilities is
more than an ancillary function of UC, we reject the contention
that pricing of such services is a managerial prerogative of
uc.s
UC next contends that even if the amount of fees is within
scope, it was merely conforming to established past practice
4Although UC does set forth certain facts regarding the
scope and extent of its parking operations, these facts were
not presented by stipulation or testimony during the trial of
this matter, nor were they pled in UC's trial brief. They were They were
presented for the first time by exceptions. Hence, we have not
considered them in ruling on this argument. Knapp v. Newport
Beach (1960) 186 Cal.App.2d 669, Witkin, California Procedure,
2d Edition (1971), Vol. 6, section 219, p. 4209.
13
UC. 5
5rf UC demonstrated that its practice was to operate one
uniform parking system which employees were privileged to
utilize on the same basis as the public at large, we might find
the argument that UC is, at least partially, in the parking
business and should be free to unilaterally price its product
more persuasive. However, UC failed to demonstrate that
employees are merely fungible consumers. of its parking
"product." Rather, it may be fairly inferred from the record
that UC's practice has been to offer employees parking which is
separate and distinct from that provided to students and the
general public, by virtue of both the fee structure and type of
permit involved. The fact that employees consume UC's parking
product on a different basis than do other consumers
constitutes an additional basis for rejecting UC's "parking is,
in part, our business" contention.in part, our business" contention.
13
14
when it increased the fees. The increase, UC contends, was
simple maintenance of the dynamic status quo, and thus was not
a change at all. UC points out that its long-standing practice
regarding parking fees is to annually review the cost of its
parking operation, and to uniformly increase employee parking
fees on July 1 of each year, as necessary.
In support of its theory, UC relies upon Pajaro Valley
Unified School District (5/22/78) PERB Decision No. 51, wherein
PERB held that an employer was privileged to pass along
increases in the cost of health insurance to its employees
unilaterally, pending completion of negotiations. In Pajaro
Valley, the employer's past practice, established pursuant to
contractual agreement with the representative of its employees,
was to pay only a set dollar amount toward the total health
insurance premium. When the carrier increased its premium, the
employer's practice was to pass along the entire amount of such
increase to employees. PERB held, in accordance with private
sector precedent, that because the employer had historically
passed along increases in premiums to employees pending
negotiations, it was privileged to act in accordance with that
practice, and that such conduct did not amount to a "change" in
terms of employment. See also Stratford Industries, Inc.
(1974) 215 NLRB 682.
UC contends that its formula is established just like that
in Pajaro Valley, supra. It contributes a set amount from its
14
15
operating budget ($0.0) and charges consumers of parking
services for the amount of any increased costs.
We agree with the general rule set forth by UC, which is
that an employer may unilaterally act in accordance with its
established practice regarding matters within scope, pending
the outcome of good faith negotiations. However, the instant
case varies in several crucial particulars from cases
establishing that principle and relied upon by uc. In the
instant case, the amount of increase in parking system costs
was not set by a clear formula. It was not keyed to some
standard method of computation such as a cost-of-living
increase or a regular percentage step increase. Nor was the
amount of the increased cost established by a third party (such
as the health care insurer in Pajaro Valley, supra). Further,
the increase was not passed along on a uniform percentage basis
or by a set amount. Different sorts of parking fees exist in
the system (metered, quarterly, hourly, daily, etc.), and
different sorts of consumers utilize them (staff, students, the
public). Moreover, the record does not demonstrate how UC
computes the total cost of parking services. From the meager
stipulated facts, we can deduce that UC does the computation
itself, and that it involves such complex factors as the amount
of bonded indebtedness and the extent and method of
depreciation of facilities. It is clear that UC exercises a
vast amount of discretion in computing an annual operating
15
16
budget for its parking system. Further, UC clearly exercises
virtually unfettered discretion in determining how it will
extract increased costs. It determines the extent to which
each type of parking facility and each group of consumers will
bear the increased burden. Thus, it could pass along any
increase in cost to students or the public, as opposed to
staff, or conclude that occasional users would be charged more
than long-term, regular consumers.
It is apparent that UC's increases in parking fees are
extremely different from the increase in medical insurance
premiums in Pajaro Valley, supra, due to the discretion
possessed by UC to determine by its own method the amount of
the increase and the manner and extent by which it will be
extracted from parking consumers.
In NLRB v. Katz (1962) 369 U.S. 736, 50 LRRM 2177, at 50
LRRM 2182, the U.S. Supreme Court established a rule governing
the legality of unilateral action undertaken during the
pendency of, but prior to, conclusion of negotiations. The
Court found that such a unilateral act is tantamount to an
outright refusal to negotiate on a subject, unless it is an
automatic increase, not "informed by a large measure of
discretion." Where the employer has traditionally exercised a
large measure of discretion in making such changes, it is
impossible for the exclusive representative to know whether or
not there has been a substantial departure from past practice,
16
~
17
and therefore the exclusive representative may properly insist
that the employer negotiate regarding such changes.6
In Oneita Knitting Mills, Inc. (1976) 205 NLRB 500, the
employer attempted to unilaterally determine the amounts of
merit increases, as it regularly had prior to certification of
an exclusive representative. The NLRB held, at fn. 1, p. 500,
that an employer with a past history of a merit increase
program may. neither discontinue that program nor continue to
unilaterally exercise discretion with respect to such
increases. increases. What is required is a maintenance of the
preexisting practice, i.e., the general outline of the
program. However, to the extent that discretion has existed in
determining the amount or timing of the increase, the union
must have an opportunity to negotiate over the terms of the
program prior to its implementation. In accord, see Long Mile
Rubber Company (1979) 245 NLRB 1337.
To summarize, in the instant case the record is devoid of
evidence as to the amount, frequency or regularity of such
increases in the past. It is similarly silent as to UC's
method of computing whether increased parking system costs were
incurred by it in any given year and, if so, what the amount cf
~ny such costs were. Further, the record does not indicate
whether UC used a uniform method of computation from year to
6In accord with the general rule that an employer must
maintain the status quo regarding matters within scope is Davis
Unified School District, et al. (2/22/80) PERB Decision No. 116.
17
year, or whether its accounting practices varied. we must
conclude that UC's past practice involved the exercise of
virtually unfettered discretion in determining the cost of
parking services, the manner of apportioning any increase, and
the identity of the parking consumers who would bear the burden
of paying the increased fees. The assertion that past practice
justified a unilateral change regarding a matter within scope
is an affirmative defense, upon which UC had the burden of
proof. We cannot conclude, based upon the factual record in
this case, that UC's increase in parking fees was such a
routine computation, so free of exercise of discretion, that UC
was privileged to undertake it unilaterally, particularly as to
the newly-represented police officers.
UC next excepts to the ALJ's finding that it particularly
failed to negotiate in good faith regarding parking fees by
taking the position that it would negotiate over its proposal
or SUPA's proposal, and nothing in between, thus impermissibly
limiting the parameters of the negotiations.
Based upon the limited record in this case, we cannot agree
that SUPA has established a failure on UC's part to negotiate
in good faith regarding parking fees by its response to
proposals since June of 1981. The parties stipulated that they
have been negotiating regarding fees since an unspecified date
in June of 1981. UC's letter to SUPA of October 1, 1981,
indicates that it believes that SUPA's proposal provides a
"basis for meeting and conferring," and that UC "does not
18 18
It is clear from the stipulated record that UC failed and
refused to negotiate regarding parking fees until June of
1981. we cannot conclude, from the limited record in this case
regarding the particular negotiating conduct described above,
that UC's position regarding SUPA's proposals constituted a
separate basis for finding a 357l(c) violation. We thus reject
the ALJ's finding in that regard, and will modify our Order
accordingly.
19
consider the proposal to be outside the scope of
representation." In April of 1982, UC wrote to SUPA that it
was prepared to continue negotiating regarding its proposal to
uniformly apply parking fee increases to all employees and
SUPA's proposal to provide free parking for its police officer
constituents. There is no express or implied indication in
these letters or in the record evidence that UC has adopted an
"all or nothing" posture in the negotiations. A statement that
SUPA's proposal is viewed as being within scope by UC, and that
UC stands ready to negotiate regarding that proposal, is not an
indication that UC is unwilling to consider any outcome other
than that included in its or SUPA's proposals.
To summarize, we find that UC violated subsections 357l(a),
(b) and (c) of HEERA by unilaterally increasing the parking
fees charged to employees in the peace officer unit represented
by SUPA. As a remedy for said violation, it is appropriate
that UC be required to cease and desist from such unilateral
action, to restore the status quo ante, to make employees whole
19
by refunding the increased-portion of parking fees paid by them
since July 1, 1981, and to post an appropriate notice.
UC takes exception to the remedial portion of the ALJ's
. proposed decision. First, UC argues that the parking fees at
issue herein fall within a limited exception to the general
principles governing remedies in unilateral change cases,
carved out in the food service. price change cases cited above.
UC concedes that the general rule is that employers must
refrain from unilaterally changing matters within scope until
completion of good faith negotiations. However, it points out
that in several food service cases,7 the NLRB and courts have
held that the appropriate order requires the employer only to
bargain regarding changes in food prices which have been made
or are about to be made.
7Ford Motor Compan any (Chicago 1 v. NLRB, supra, Westinghouse Electric
Corp. (1966) 156 NLRB 080,--rord Motor gom
Stamping Plant) (1977) 230 NLRB 716; Mc al1 Corp. (19 8) 172
NLRB 540; Package Machinery Co. (1971) 191 NLRB 268; and Ladish
Co. (1975) 219 NLRB 354.
20
The rationale for allowing post-change bargaining in these
cases was that it would be impractical to require completion of
good faith negotiations before every change in the price of
cafeteria or vending machine items. Such a requirement would
lead to endless rounds of negotiations regarding minor matters
such as the price of individual items on the menu. That
20
UC further argues that no rollback of fees should be
ordered in this case because such an order would involve
speculation on the part of PERB as to the proper point in time
and the amount of any such rollback. UC contends that the
proper remedy is to establish prices at the level at which they
would be set through good faith negotiations. It argues that
such negotiations would not have resulted in any different
parking fee structure than that which it has implemented
unilaterally. Its assertion is that the principle of uniform
parking fees for all employees is so crucial to UC that it
would steadfastly have adhered to it and would never have
agreed to any other proposal. This assertion comes perilously
close to an admission that UC has not approached negotiations
over parking fees II with the view of reaching an
agreement if possible 11 as contemplated within the
21
rationale is not applicable to the unilateral change at issue
here. The changes in parking fees have historically occurred
only once annually, on July 1. They are more aptly analogous
to once-a-year changes in wages or benefits than to frequent
irregular ai"terations in the price of individual cafeteria
items. We decline to hold that the infrequent, regularly
occurring parking rate increases fall within the narrow
exception to the general remedial principles in unilateral
change cases carved out in the food service area.
.
21
requirement of good faith expressed in NLRB v. Highland Park
Mfg. (4th Cir. 1940) 110 F.2d 632 [6 LRRM 786] and numerous
subsequent cases. There is no allegation in this case that UC
has generally failed to approach negotiations over fees with
the requisite good faith. However, its representation is
nonetheless startling. The declared resolve never to waiver in
negotiations is not a compelling argument for mitigation of the
normal remedy in unilateral change cases, requiring a return to
the status quo. In this case, it requires no speculation to
fix the time of the unilateral change as July 1, 1981, and to
fix the amount of the rollback and refund by reference to the
rates prevailing at that time.
ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to Government
Code section 3563.3, it is hereby ORDERED that the Regents of
the University of California (UC) and its representatives shall:
A. CEASE AND DESIST FROM:
1. Failing and refusing to meet and confer in good
faith with the Statewide University Police Association (SUPA)
by taking unilateral action on matters within the scope of
representation, as defined by subsection 3562(q), and
specifically with respect to the increase in fees charged for
parking;
22 22
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE HEERA:
1. Rescind the increase in parking fees effective
July 1, 1981 as applied to employees in the unit represented by
SUPA and return to the fee schedule in effect prior to the
unlawful unilateral change and retain the status quo ante
unless and until the parties exhaust the statutory duty to meet
and confer or agree otherwise by their adoption of a
negotiating agreement.
23
2. Interfering with employees in their exercise of
their right to select an exclusive representative to meet and
negotiate with UC on their behalf by unilaterally changing
matters within the scope of representation without meeting and
negotiating with the exclusive representative; and
3. Interfering with the right of SUPA to represent
its members regarding matters within the scope of
representation.
2. Pay to employees in the unit represented by the
SUPA the difference between the parking fees collected since
July 1, 1981, and the amount they would have paid but for the
increase effective that date, together with interest at the
lawful rate.
3. Within thirty-five (35) days following the date of
service of this Decision, post at all work locations where
Notices to employees customarily are placed, copies of the
23
4. Provide written notification of the actions taken
to comply with this Order to the regional director of the
Public Employment Relations Board, in accordance with her
instructions.
24
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 insure that this Notice is not reduced in
size, defaced, altered or covered by any material.
Members Jaeger and Morgenstern joined in this Decision.
24
subsection 3571 (a) of the HEERA.
A. CEASE AND DESIST FROM
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. S-CE-6-H and
LA-CE-47-H in which all parties had the right to participate,
it has been found that the Regents of the University of
California {UC) have violated subsection 357l{c) of the Higher
Education Employer-Employee Relations Act {HEERA) by
unilaterally increasing the parking fees charged to police
officers in the unit represented by the Statewide University
Police Association.
It has also been found that this same conduct violated
subsection 357l{b) of the HEERA since it interfered with the
right of the Statewide University Police Association to meet
and confer on behalf of its members.
It has also been found that this same conduct interfered
with negotiating unit members' right to be represented by their
exclusive representative, thus constituting a violation of
subsection 357l{a) of the HEERA.
As a result of this conduct, we have been ordered to post
this Notice, and we will:
A. CEASE AND DESIST FROM
1. Failing and refusing to meet and confer in good
faith with the Statewide University Police Association by
taking unilateral action on matters within the scope of
representation, as defined by subsection 3562{q), and
specifically with respect to the increase in fees charged for
parking.
2. Interfering with employees in their exercise of
their right to select an exclusive representative to meet and
negotiate with UC on their behalf by unilaterally changing
matters within the scope of representation without meeting and
negotiating with the exclusive representative.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE HEERA:
1. Rescind the increase in parking fees effective
July 1, 1981, as applied to employees in the unit represented
by the Statewide university Police Association, and return to
1
the fee schedule in effect prior to the unlawful unilateral
change and retain the status quo ante unless and until the
parties exhaust the statutory duty to meet and confer or reach
agreement.
2. Pay to employees in the unit represented by the
Statewide University Police Association the difference between
the parking fees collected since July 1, 1981 and the amount
they would have paid but for the increase effective that date,
together with interest at the lawful rate.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA
Dated: By Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
22
$
1
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATEWIDE UNIVERSITY POLICE
ASSOCIATION,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
STATEWIDE UNIVERSITY POLICE
ASSOCIATION,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Consolidated
Unfair Practice
Case No. S-CE-6-H
and
Case No. LA-CE-47-H
PROPOSED DECISION
(5/17/82)
Appearances: obert A. Jones for the Statewide University
Before Sharrel J. Wyatt, Administrative Law Judge.
PROCEDURAL BACKGROUND
Allegations that the Regents of the University of
California (herein University) unilaterally changed the parking
fee rates for employees in the unit represented by the
Statewide University Police Association (herein SUPA) at the
Davis and Los Angeles campuses in violation of Government
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Robert A. Jones for the Statewide University
Police Association; Edward M. Opton, Jr., Attorney for the
Regents of the University of California.
Code section 357l(a} and (c)l were the basis for unfair
practice charges filed by the SUPA. These charges, filed with
the Public Employment Relations Board (herein PERB} on June 26
and 29, 1981, were amended to include allegations that the
University had unilaterally increased parking fees on other
campuses as well. The charges were consolidated for informal
and an informal conference on July 30, 1981 failed to resolve
the dispute. The University filed its Answers and Amended
Answers on July 23, and 27 and August 10, 1981 respectively.
These cases were consolidated and a Complaints and Notice of
Hearing issued on January 15, 1982. A formal hearing was
conducted on March 17, 1982 at which the parties entered
stipulations on the record with leave to file and serve
additional information at the request of the administrative law
judge. Final briefs were filed on April 19, 1982. Thereafter,
additional stipulated facts were submitted by the parties. The
findings of fact were served with opportunity to object on or
before May 14, 1982 and this matter stood submitted.
FINDINGS OF FACT
The Regents of the University of California are an employer
and the Statewide University Police Association an employee
organization within the meaning of HEERA.2 The SUPA has been
1All references are to the Government Code unless
otherwise indicated.
2The Higher Education Employer-Employee Relations Act is
codified at Government Code section 3560 et seq.
2
the exclusive representative for a unit consisting of peace
officers3 sin officers3 since August 19, 1980. Employees in the peace
officer unit work on rotating shifts, 24 hours per day, and are
on call. They are required to carry tools of the trade to and
from work such as their gun and badge.
The past practice of the University has been to charge the
same parking fee rates to employees in the unit represented by
the SUPA as it charged to other staff employees purchasing the
same services. The same has been true for other services such
as cafeteria, vending machines, or tickets to athletic events.
These latter items have been increased, sometimes with prior
notice to staff employees and/or employee organizations. For
example, the price of the staff Recreation Privilege Card4
was increased from $22.00 to $35.00 at the Los Angeles campus
on July 1, 1980, without prior notice to employees or employee
organizations.
The University provides approximately 70,000 parking
spaces, and this number is probably sufficient to accommodate
all staff employees at some facilities. Parking permits are
3As of January 20, 1982 the unit contained 42 at UCLA, 27
at Davis, 49 at Berkeley, 14 at San Francisco, 9 at Riverside,
15 at San Diego, 10 at Santa Cruz, 21 at Santa Barbara, 20 at
Irvine and 6 at Lawrence/Berkeley Laboratory, for a total of
213.
4The Staff Recreation Privilege Card is for use of
athletic and recreational facilities.
33
required at all campuses, laboratories and hospitals not only
to ration scarce spaces, but also, and primarily, to support
the parking system financially. The Legislature has never
appropriated funds for parking at the University; the parking
system is entirely self-supporting; and the permit fees are
therefore essential to the existence of the parking system. At
all campuses permits are available to police officers on a
basis no less favorable than to other staff employees.
On January 30, 1981 all Los Angeles campus academic and
staff employees were sent a memorandum outlining the need for
changes in parking fees for the 1981-82 fiscal year. The memo
stated that an explanation of the need to increase parking fees
had been given in February, 1980, that that explanation had
been based on certain assumptions, that those assumptions had
been inaccurate, and that meetings would be conducted before
February 10, 1981 with the Faculty Welfare Committee of the
Academic Senate, the Personnel Policies Committee of the UCLA
Staff Association and representative student groups to review
the proposed parking fee structure for 1981-82. It was
anticipated that the parking fee proposal would be forwarded to
the chancellor on February 10 and the Regents on February 13.
On March 13, 1981, the SUPA wrote to the director of
collective bargaining services indicating that it had recently
become aware of the proposed parking fee increase and
considered this a term and condition of employment. A
4
unilateral change would be a violation of section 357l(b) and
(c) (c), according to the SUPA. It therefore made formal demand to
have the fees remain at the same figure and that the University
refund any increase that had been deducted.
On April 13, 1981, the University's director of collective
bargaining services responded that the increase for 1981-82
would apply to all employees except members of the unit of
police certified by PERB.
On May 29, 1981, the University's director of collective
bargaining services again addressed the issue, stating that the
rate increase should apply to peace officers in the same way it
applied to other employees. While willing to discuss the issue
and to provide information to the SUPA, the University stated
that it could not agree that the subject was within the scope
of representation. It was prepared to consult.
It has now been determined that parking may
not be a condition of employment and,
therefore, the University may not have a
statutory duty to meet and confer with
exclusive representatives on fee increases
for University-operated parking.
5
On June 9, 1981, the University's coordinator, auxiliary
enterprises and services programs, advised eight
vice-chancellors and an assistant vice-chancellor that the SUPA
had contended that the increase in parking fees was a condition
of employment, but the position of the University was stated as
follows:
5
On June 16, 1981, E. M. McEwen, Chief of Police, sent the
following memo:
TO: All Sworn Personnel
RE: Parking Permits - Rate Increase
There was a rumor that the University would
not require sworn personnel to pay the
increased rates for campus/UMC parking
permits on the basis that the rate could be
considered as part of the "terms and
conditions of employment"; that the parking
permit fee was an item subject to collective
bargaining.
Vice President Kleingartner has indicated
the University does not consider the
foregoing to be an appropriate posistion
(sic) to take. Therefore, all UC employees,
including police officers, will be required
to pay the required fee, including any
increase, should they wish to obtain a UC
parking permit for the coming year.
While this memo was sent to Davis personnel, it was
indicative of the University's position at that time.
No convenient alternative parking is available. At the
Davis and Los Angeles campuses, there are no convenient parking
facilities available as alternatives to the campus
facilities.5
5This repetition reflects two separate stipulations.
On June 12, 1981, the SUPA wrote to the University giving
formal notice that if it did not receive written assurance that
the University would bargain the issue of proposed increases in
parking fees prior to June 22, 1981, it was prepared to file
unfair practice charges with PERB.
6
With no prior meeting and conferring, on July 1, 1981, the
following increases went into effect:
Davis
Type of Service Monthly Fee
Before 7/1/81 After 7/1/81
"A" Permit $4 . 00 $5.00
"C" Permit 3.00 4.00
"M" Permit 1.50 2.25
"N" Permit 2.00 2.33
Los Angeles
Type of Service Monthly Fee
Before 7/1/81 After 7/7/81
Annual Permit $9.00/mo $12.00/mo
Daily Permit (per entry) 2.00 2.00
Night Permit 2. 0625 2.0625
Meters (per hour) 1.00 1.00
Misc. and Admin. Charge 5.00 5.00
Attendant Services 20.00 20.00
(for 1-1/2 hour minimum)
Attachment A contains the fiscal 1980-1981 systemwide
parking fee schedule. Attachment B contains the fiscal
1981-1982 schedule.
77
From at least 1973 until July 1, 1981, employees in the
peace officer unit had received the same percentage increase in
pay as other University employees except for 1973 when there
was an across-the-board increase of $70.00. Peace officers
received the $70.00 increase plus 2 1/2 percent. Due to
collective bargaining, employees in the peace officer unit did
not receive the annual increase on July 1, 1981. However, with
the agreement of the SUPA they did receive the increase in per
diem allowance for travel effective Janaury 1, 1981 and since
July 1, 1981, they have received the increases in dental and
health coverage.
Meanwhile, on June 18, 1981, the SUPA presented initial
bargaining proposals to the Regents of the University of
California. It included the following proposal regarding
parking fees:
XIV. PARKING
Employer shall at each work location,
provide adequate secured parking for all
employees' private vehicles. There shall be
no charge to employees for such parking.
The parties have been engaged in the collective bargaining
process since June 1981. As of the date of hearing, no
agreement has been reached concerning parking fees. Proposals
have been exchanged on the issue of parking fees.
One of the University's proposals was:
The University shall provide parking at each
campus or laboratory to the same extent and
88
under the same conditions as other
University nonmanagement staff employees.
The SUPA has made the following proposal:
The University shall at each work location,
provide adequate secured parking for all
employees' private vehicles. In the
alternative to provision of secured parking,
the University may, on a campus by campus
basis, agree in writing to reimburse any
employee for the actual cost of any damages
or losses sustained through theft, vandalism
or other damages to his or her vehicle while
parked in assigned parking areas while the
employee is on duty.
Parking shall be provided at no cost to the
employees.
On July 20, 1981, the SUPA wrote to the University
requesting information regarding whether the University was
meeting and conferring with another employee organization on
the issue of parking fees. On July 27, 1981, the University
responded that the inquiry had been referred to the General
Counsel's office because it was handling the unfair practice
charge.
In an apparent shift in position, the University's director
of collective bargaining services sent the following letter to
the SUPA on October 1, 1981:
SUPA and the University of California have
exchanged initial bargaining proposals and
each party has had an opportunity to review
the proposals and to ask any questions which
the proposals triggered.
Your first letter to me on the subject of
parking, dated March 23, 1981, conveyed your
view that imminent parking rate increases at
99
UCLA would not apply to members of the unit UCLA would not apply to members of the unit
represented by SUPA, because it would be represented by SUPA, because it would be
necessary for the University to meet and necessary for the University to meet and
confer with SUPA before implementing these confer with SUPA before implementing these
increases. increases. I wrote to you on May 29, 1981, I wrote to you on May 29, 1981,
taking issue with this assumption. At the taking issue with this assumption. At the
time, I did not have SUPA's MOU proposal. time, I did not have SUPA's MOU proposal.
Having now reviewed the proposal, I believe Having now reviewed the proposal, I believe
a basis for meeting and conferring may a basis for meeting and conferring may
exist. As you know, the University has for exist. As you know, the University has for
many years implemented changes in parking many years implemented changes in parking
fees from time to time in response to fees from time to time in response to
changing costs of construction, finance and changing costs of construction, finance and
operation of the parking system, and these operation of the parking system, and these
changes have applied to peace officers as changes have applied to peace officers as
well as to other employees. As I now well as to other employees. As I now
understand your proposal, it is that peace understand your Sroposal, it is that peace
officers should be exempted from all parking officers shoulde exempted from all parking
charges. charges. If my understanding is correct, I If my understanding is correct, I
would like to make it clear that the would like to make it clear that the
University does not consider the proposal to University does not consider the proposal to
be outside the scope of representation, and be outside the scope of representation, and
is prepared to include it in the bargaining is prepared to include it in the bargaining
process. process. (Emphasis added.) (Emphasis added. )
On February 22, 1982, the SUPA was informed that the On February 22, 1982, the SUPA was informed that the
San Francisco campus was considering an increase in the monthly San Francisco campus was considering an increase in the monthly
parking fee. The proposed increase for staff permits was from parking fee. The proposed increase for staff permits was from
$22.00 to $25.00 per month. $22.00 to $25.00 per month. The SUPA was invited to discuss The SUPA was invited to discuss
the increase, make comments, ask questions, or express concerns the increase, make comments, ask questions, or express concerns
no later than Friday, March 5, 1982. no later than Friday, March 5, 1982.
On February 26, 1982, the SUPA responded that this proposed On February 26, 1982, the SUPA responded that this proposed
unilateral increase would be a violation of HEERA and that the unilateral increase would be a violation of HEERA and that the
issue of parking fees was both a subject for bargaining and anissue of parking fees was both a subject for bargaining and an
issue in this unfair practice charge. It ended by stating that issue in this unfair practice charge. It ended by stating that
it anticipated that no increase would be applied to its members. it anticipated that no increase would be applied to its members.
10 10
On March 10, 1982, the University informed the SUPA that
its letter of February 22 had been sent to the SUPA by mistake.
On March 12, 1982, all Los Angeles campus staff were given
a memo ndicating proposed increases in parking fees for a memo6 indicating proposed increases in parking fees for
1982-83 as follows:
66No direct notification was made to the SUPA by the No direct notification was made to the SUPA by the
University about the proposal to increase parking fees at the University about the proposal to increase parking fees at the
Los Angeles campus until it was enclosed as part of a Los Angeles campus until it was enclosed as part of a
post-hearing exchange in correspondence on April 20, 1982 post-hearing exchange in correspondence on April 20, 1982
(discussed ante) . {discussed ante).
Current Fees
1981 - 1982 Proposed Fees
1982 - 1983
Faculty, Staff and Commuter
Student Permits $ 12.00/month $ 16.00/month
On-Campus Resident Permits $ 12.00/month $ 21. 00/month
Courtesy Permits $ 36.00/annual $ 48.00/annual
Emeriti Permits $ 12.00/annual $ 16.00/annual
Night Permits $100.00/annual $150.00/annual
Daily Sales $ 2.00/entry $ 3.00/entry
Meters $ 1.00/hour $ 1.00/hour
Administrative Charges
{lost card keys or
permits, etc.)
$ 5.00/item $ 5.00/item
They were invited to ask questions or comment in writing no
later than Friday, April 2, 1982.
Currently, proposals for parking fee increases are in
progress at the Los Angeles and San Francisco campuses. At
Los Angeles the proposal calls for an increase in staff parking
11 11
As an attachment to a letter to PERB regarding this case,
the University sent notification to SUPA on April 20, 19827
regarding the following:
fees from $12 per month to $16 per month to be effective
July 1, 1982. At San Francisco the proposal would increase
staff parking fees from $21 per month to $24 per month
effective July 1, 1982.
1. A proposed increase in parking fees at the
San Francisco campus of $3.00/month for Type A and
Type G parking permits effective July 1, 1982.
2. Possible increases at the Irvine campus as described
in the Leon Schwartz letter to faculty and staff dated
March 18, 1982 (copy of letter omitted).
3. Proposed parking fee increases at the Los Angeles
campus as described in the letter to all UCLA academic
and staff employees in the March 12, 1982 memo (supra,
p. 11) •
4. Possible increases in parking fees at the Riverside
and San Diego campuses. No details are yet available.
This communication from the director of collective
bargaining services concludes:
The University's position on parking fees
charged to employees in the SUPA bargaining
unit is as follows: In the past, fees for
members of the peace officer bargaining unit
7This document was filed after briefs were received in This document was filed after briefs were received in
this matter. this matter.
12 12
have been the same as for other staff
personnel, and changes in fees have applied
to all staff personnel. The University
proposed to continue this policy, which is
embodied in the parking fee proposal that we
made to you on September 9, 1981. We are
prepared to continue negotiating with you on
this proposal and on your alternate
proposal. Until and unless we reach
agreement on a change in policy, we intend
to continue the present policy, i.e.,
occasional parking fee changes will apply to
all staff personnel, including members of
the peace officer bargaining unit.
ISSUES
1. Whether parking fee increases are within the scope of
bargaining.
2. If so, whether the Regents of the University of California
failed and refused to meet and confer in good faith on the
issue of increases in parking fees.
3. WWhether or not the issue is moot because the parties are
meeting and negotiating on the issue of parking fees.
Conclusions of Law
Amount of Parking Fee Within Scope
SUPA has charged the University wi1;:h violation of section
357l(a) and (c). Section 357l(a) and ;c) provide:
It shall be unlawful for the higher
education employer to:
(a) Impose or threaten to impose reprisals
on em~loyees, to discriminate or threaten to
discriminate against employees, or otherwise
13
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed to them by this chapter.
(c) Refuse or fail to engage in meeting and
conferring with an exclusive representative.
Section 3570 imposes the duty on the higher education
employer to engage in meeting and conferring with the employee
organization selected as exclusive representative of an
appropriate unit on all matters within the scope of
representation. Scope of representation is defined by section
3562(q) as follows:
(q) For purposes of the University of
California only, "scope of representation"
means, and is limited to, wages, hours of
employment, and other terms and conditions
of employment. The scope of representation
shall not include:
(1) Consideration of the merits,
necessity, or organization of any
service, activity, or program
established by law or resolution of the
regents or the directors, except for
the terms and conditions of employment
of employees who may be affected
thereby.
(2) The amount of any fees which are
not a term or condition of employment.
(3) Admission requirements for
students, conditions for the award of
certificates and degrees to students,
and the content and supervision of
courses, curricula, and research
programs, as those terms are intended
by the standing orders of the regents
or the directors.
14
. . . . . . . . . . .
(4) Procedures and policies to be used
for the appointment, promotion, and
tenure of members of the academic
senate, the procedures to be used for
the evaluation of the members of the
academic senate, and the procedures for
processing grievances of members of the
academic sena,te. The exclusive
representative of members of the
academic senate shall have the right to
consult and be consulted on matters
excluded from the scope of
representation pursuant to this
paragraph. If the academic senate
determines that any matter in this
paragraph should be within the scope of
re~resentation, or if any matter in
this paragraph is withdrawn from the
responsibility of the academic senate,
the matter shall be within the scope of
representation.
All matters not within the scope of
representation are reserved to the
employer and may not be subject to
meeting and conferring, provided that
nothing herein may be construed to
limit the right of the employer to
consult with any employees or employee
organization on any matter outside the
scope of representation.
In Social Services Union v. Board of Supervisors (1978) 82
Cal.App.3d 498; 147 Cal.Rptr. 126, the California Court of
Appeals was faced with the issue of whether a county board of
supervisors violated the duty to meet and confer under
Meyers-Milias-Brown8 when it unilaterally adopted a
resolution increasing monthly parking fees. The Court of
8Meyers-Milias-Brown is codified at Government Code
section 3505 et seq.
15 15
Appeals looked to federal precedent9 to determine whether an
increase in parking fees was within the scope of bargaining.
Cases dealing with increases in the fees charged for in-plant
food services by employers were relied upon as analogous to the
issue of increases by the employer in parking fees. At the
precise moment in history when Social Workers was decided, the
National Labor Relations Board (herein NLRB) had steadfastly
adhered to the position that increased in in-plant food prices
were negotiable, construing wages and conditions of employment
(Ford Motor Co. (1977) 230 NLRB 101 (95 LRRM 1397]; Seattle
First National Bank (1969) 176 NLRB 691 (73 LRRM 1549];
Ladish Co. (1975) 219 NLRB No. 60 (89 LRRM 1653]; Westinghouse
Electric Corp. (1966) 156 NLRB 1080 (61 LRRM 1165]; McCall
Corp. (1968) 172 NLRB No. 55 (69 LRRM 1187]; Package Machine
Co. (1971) 191 NLRB 268 (77 LRRM 1456] .)
9The Court of Appeals followed Fire Fighters Union Local
1186 v. City of Vallejo, (1974), 12 Cal.3d 608, [526 P.2d 91i,
I16 Cal. Rptr. 507] in which it was held that in interpreting in interpreting
state labor legislation, it is a~propriate to look to
applicable federal precedent. Cited with approval by the
Board, in Sweetwater Union High School District, EERB Decision
No. 4, 11/23/76, (1 PERC 10]; Anaheim Union High School
District (10/28/81) PERB Decision No. 177.
Four federal circuit courts of appeal had provided a
narrower interpretation, frequently refusing enforcement of
NLRB Board orders and applying a standard requiring that a
matter must "materially" or "significantly" affect terms and
16 16
conditions of employment to be a mandatory subject for
collective bargaining. Matters held to be de minimus were
outside of the scope of bargaining (Seattle First National Bank
v. NLRB (CA9 1971) 444 F.2d 30 [77 LRRM 2634] enf. denied.;
Westinghouse Electric Corp. v. NLRB (CA4 1966) 369 F.2d 891 [64
LRRM 2001] enf. denied.; McCall Corp. v. NLRB (CAl 1972) 457
F.2d 936 [79 LRRM 2948] enf. denied.; NLRB v. Ladish Co. (CA?
1976) 538 F.2d 1267 [92 LRRM 3577] enf. denied (the 7th Circuit
expressly agreeing with the 4th Circuit and the 1st Circuit).
Subsequent to Social Workers, supra, the United States Supreme
Court dealt with the issue in Ford Motor Co. v. NLRB (1979) 441
U.S. 488 [101 LRRM 2222]. Noting that the NLRB had
consistently adhered to the view that in-plant food prices were
among terms and conditions of employment, and that Congress had
assigned to the NLRB the primary task of construing those
terms, the U.S. Supreme Court held that the judgment of the
NLRB was entitled to considerable deference, that its views
were not an unreasonable and unprincipled construction and,
therefore, should be accepted and enforced.
The federal Courts of Appeal cases upon which Social
Workers, supra, relied have been superseded by the U.S. Supreme
Court's decision in Ford Motor Co. which upheld the NLRB's
position that increases in in-plant food prices is a mandatory
subject of bargaining within the term "terms and conditions of
17 17
employment." Likewise, with all due respect, Social Workers,
supra, is not binding precedent. The analogy between increases
in in-plant food prices and increases in parking fees, however,
remains valid.
The availability of parking and its cost are matters of
concern to employees. Terms and conditions under which parking
is available is plainly ,germane to working conditions.
Further, the University is not in the business of selling
parking spaces. Thus the cost of parking is not among the
"managerial decisions" at the "care of entreprenerial
control." (Ford Motor Co., supra.) Meeting and conferring on
this subject matter does not usurp managerial decision making,
it merely insures that the University and SUPA work together to
establish mutually satisfactory terms and conditions of
employment. 10 Based on Ford Motor Co., supra, it is foundemployment. 10
that the increase in parking fees is a matter within the scope
of representation as defined in section 3562(q).
lOThis reasoning comports with the Board's rP.asoning in
Anaheim Union High School District, supra, p. 16, in which the
Board sets forth the test for interpretation of scope issues
under the Educational Employment Relations Act (Government Code
section 3540 et seq.), a narrower scope of representation, as
follows:
Failure to Meet and Negotiate
Factually, the past practice has been for the University to
apply parking fee increases to all employees consistently on a
18
••. a subject is negotiable even though
not specifically enumerated if (1) it is
logically and reasonably related to hours,
wages or an enumerated term and condition of
18
campus by campus basis. SUPA became the exclusive
representative for peace officers in August 1980. SUPA learned
of proposed increases for 1981-82 in January 1981 and made a
formal demand to meet and negotiate on that issue on
March 13, 1981. On April 13, 1981, the University informed
SUPA that the proposed increases would not apply to the peace
officer unit. On May 29, 1981, the University revised its
position and informed SUPA that the increase would apply to the
peace officer unit, that the issue was not within scope, and
indicated a willingness to consult. SUPA's June 12 response
requested assurances that the University would meet and confer
on the issue before June 22, 1981 or it would file an unfair
practice charge. The charges were filed on June 26
and 29, 1981.
SUPA argues that this factual pattern constitutes a
unilateral change on a matter within the scope of
representation.
employment, (2) the subject is of such
concern to both management and employees
that conflict is likely to occur and the
mediatory influence of collective
negotiations is the appropriate means of
resolvin~ the conflict, and (3) the
employers obligation to negotiate would not
significantly abridge his freedom to
exercise those managerial prerogatives
(including matters of fundamental policy)
essential to the achievement of the
District's mission. (Citation omitted.)
19 19
The University argues that the fee increases were a
continuation of a long established practice and, thus, not a
unilateral change. In support of its position, the University
cites Pajaro Valley Unified School District (5/22/78) PERB
Decision No. 51, and by analogy, Davis Unified School District
(2/22/80) PERB Decision No. 116; San Francisco Community
College District (6/8/79) PERB Decision No. 94. The University
is correct that changes which are consistent with regular and
consistent past patterns of changes in conditions of employment
do not constitute a unilateral change. However, those cases on
which it relies are distinguishable from the instant case.
Davis, supra, involved the freezing of step and column
increases on the existing salary schedule; in San Francisco,
supra, the District froze salaries and yearly and career
increments on the existing salary schedule; in San Mateo,
supra, the District reduced the existing salary schedule by
6.25 percent, in Pajaro Valley, supra, the District continued a
practice that it pay an agreed upon sum while employees paid
the amount of any increases in premium for health and welfare
benefits until negotiations were completed, whereupon, the
District compensated employees retroactively based on the
agreement reached.
The distinguishing feature of the instant case is that the
District did not impose a fee from a schedule already in
existence. Rather, it unilaterally determined the amount of an
20 20
increase, rejected a request to bargain and implemented it.
Regardless of its consistent and regular past practice in
applying the same increases to all employees, the University
was not at liberty to unilaterally determine the amount of the
increase and reject a request to bargain once an exclusive
representative had been selected. It is noted that the
consistent and regular past practice of the University has been
to pay the same salary and fringe benefit increases to peace
officers as it paid to other employees (supra, p. 8). Once an
exclusive representative was selected, the University paid
increases in fringes only by mutual agreement. It has not yet
paid the increase in wages paid to all other employers to the
employees in the peace officer unit. This is tacit recognition
by the University that it cannot unilaterally determine the
amount of increase in wages once an exclusive representative is
selected. Likewise, it cannot unilaterally determine the
amount by which it will increase parking fees once an exclusive
representative has been selected.
21
This unilateral change by the University constitutes a
per se violation of section 357l(c). (Davis, supra; San
Francisco, supra; San Mateo, supra; NLRB v. Katz (1962) 369
U.S. 736 [50 LRRM 2177] .)
Even without this unilateral change, the University would
have breached its duty to meet and confer. Section 3570
imposes the duty to meet and confer in good faith on matters
21
within the scope of representation. Increases in parking fees
have been found to be within the scope of representation: SUPA
made a timely demand to meet and confer on proposed increases.
The University responded that proposed increases would not be
applied to employees in the unit represented by SUPA. One
month later, the University reversed its position, stating
increases would apply to those employees and that increases in
parking fees were not matters within the scope of
representation. SUPA renewed its demand to meet and confer.
Without responding to that demand, the University implemented
the proposed increases. In this factual pattern, it cannot be
said that the University met its obligation to meet at
reasonable times and confer in good faith with respect to
matters within the scope of representation (section 3562(d)).
The University rejected SUPA's demand to meet and confer. It
neither met nor conferred. Rather, it took the position that
the subject matter was outside the scope of representation and
offered to discuss it. In Katz v. NLRB, supra, the United
States Supreme Court stated:
offered to discuss it. In Katz v. NLRB, supra, the United
States Supreme Court stated:
The duty "to bargain collectively" enjoined
by Section 8 (a) (5) is defined by Section
8(d) as the duty to "meet*** and confer
in good faith with respect to wages, hours,
and other terms and conditions of
employment." Clearly, the duty this defined
may be violated without a general failure of
subjective good faith; for there is no
occasion to consider the issue of good faith
if a party has refused even to negotiate in
fact--"to meet*** and confer"--about any
2222
of the mandatory subjects.11 A refusal to
negotiate in fact as to any subject which is
within Section 8(d), and about which the
union seeks to negotiate, violates Section
8(a) (5) though the employer has every desire
to reach agreement with the union upon an
over-all collective agreement and earnestly
and in all good faith bargains to that end.
Based on the foregoing, it is found that the University
violated section 357l(c) by failing and refusing to meet and
negotiate on the subject of increases in parking fees. In
addition, this same conduct concurrently violated
section 357l(b) by denying SUPA its statutory right as an
exclusive representative to represent unit members in their
employment relations with the University. (Section 3570.)
Further, the University's failure to meet and negotiate with
SUPA interfered with employees because of their exercise of
representational rights in violation of section 357l(a).
Collective negotiations is the cornerstone of the HEERA. To
this end, employees have the right to select an exclusive
representative to meet and negotiate with the employer on their
behalf (section 3565). (San Francisco Community College
District, supra.)
Mootness
The University argues that the issue is moot because it has
decided to negotiate the issue of parking fees and has in fact
been doing so since June 1981.
23
Factually, the University took the position that increases
23
in parking fees were not within the scope of representation on
May 29, 1981. Increases were implemented effective
July 1, 1981. Meanwhile, on June 18, 1981, SUPA presented its
initial proposal which contained a provision for no parking
fees on June 18, 1981. On October 1, 1981, the University's
director of collective bargaining services wrote to SUPA and
indicated that as he understood SUPA's proposal, it would
exempt peace officers from all parking charges. The University
did not consider this proposal to be outside the scope of
representation. After briefs were filed in this matter, the
University communicated with SUPA via an attachment to a
document filed herein that there were proposals for increases
for 1982-83 and that the University was prepared to negotiate
with SUPA on its proposal (no change from current practice) or
SUPA's proposal (no charge for parking).
The record reflects constantly shifting positions by the
University over a lengthy period which includes one implemented
annual increase and one proposed annual increase. At no time
does the University recognize a duty to meet and confer on
proposed increases. Its latest communication on April 20, 1982
gives notice of proposed increases and offers to meet and
confer on the two extremes, all or nothing.
24
Based on this factual record, it is clear that the issue is
not moot. The duty is to meet and negotiate on proposed
24
increases as well as proposal for no fee or full fee and cannot
be limited by the proposals made in a setting in which the
University's position was that increases in parking fees were
outside the scope of representation.
REMEDY
The PERB has broad authority to remedy unfair practices.
Section 3563.3 provides:
The board shall have the power to issue a
decision and order directing an offending
party to cease and desist from the unfair
practice and to take such affirmative
action, including, but not limited to, the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
It is appropriate to order that the University cease and desist
from failing and refusing to meet and confer in good faith with
SUPA on the subject of increases in parking fees and that it
cease and desist from the derivative violations of interfering
with and restraining employees because of the exercise of
rights guaranteed by HEERA (the right to be represented by an
exclusive representative), and denying to employee
organizations rights guaranteed to them by HEERA (the right to
meet and confer on matters within the scope of representation).
The more difficult issue in framing a remedy is whether it
is appropriate to require that the University "make whole" for
the increase it implemented without first meeting and
conferring. SUPA argued for the "make whole" remedy based on
25 25
the premise that this was a unilateral change for which "make
whole" is the ordinary remedy. The University argues that
"make whole" is not appropriate because it simply implemented
the increases for all employees as had been its consistent and
regular past practice. It cites Ford Motor Co., supra, in
which the U.S. Supreme Court, addressed the employer's argument
that a bargaining order would result in unnecessary disruption
because any small change in price or service would trigger the
obligation to bargain, a particularly acute situation where
several unions are involved, possibly requiring endless rounds
of negotiations. The Court noted that the order it was
affirming did not require bargaining prior to implementation of
the increases in food prices.
[i]t is sufficient compliance with the
statutory mandate if management honors a
specific union request for bargaining about
changes that have been made or are to be
made. (Citations omitted, emphasis added.)
Indeed, this has been the approach of the NLRB where a matter
held to be within the scope of representation involved numerous
small increases and numerous exclusive representatives. In
Westinghouse Electric Corp., supra, the NLRB reasoned:
Although we agree with the Trial Examiner
that in the circumstances of this case the
subject of cafeteria food prices was a
mandatory subject of bargaining, it does not
follow that Respondent was required to
bargain about every proposed change in food
prices before putting such change in
effect. Because of the nature of the
26 26
retaurant business--the constant and
frequently sharp fluctuation in the cost of
food ingredients, the large number of
individual items sold, and changes in
menus--it is impracticable to require
consultation with a union before each change
in the price of any of the products sold.
It is sufficient compliance with the
statutory mandate, we believe, if management
honors a specific union request for
bargaining about changes made or to be made.
The NLRB has continued to adhere to that view (Ladich Co.,
supra; Ford Motor Co., supra).
In the instant case, official notice is taken that the
University is required to meet and confer with only one other
exclusive representative at one campus only. SUPA is the only
system wide exclusive representative. In addition, parking fee
increases are not the subject of constant and shifting sharp
fluctuations in costs, large numbers of items sold, or changes
in menu. Indeed, the pattern that emerges from the facts is
that one annual increase is proposed mid-year and implemented
at the start of the new fiscal year, with annual increases at
some but not all of the 12 sites where the University provides
parking for a fee. Thus, the reason underlying the NLRB's
exceptional approach to the obligation to bargain in food
services cases simply does not exist in the matter of
University parking fees.
Additionally, the University has failed to meet its
obligation to meet and negotiate and has thereby reaped the
27 27
profits from one year's increase and is verging on implementing
increases for a second year. If no "make whole" remedy is
available, the wrong-doer may profit while the recipient of the
wrongdoing is left to its efforts to bargain back what has
already been taken. Thus a bargaining order is inadequate to
right the wrong. The University will therefore be ordered to
return to the status quo ante as it existed prior to imposition
of the parking fee increase effective July 1, 1981, to pay to
employees in the unit represented by SUPA the amount of any
increases collected from them together with interest at the
lawful rate,1 and to cease and desist from implementing a
further increase to employees in the unit represented by SUPA
until it has exhausted its obligation to meet and confer.
llsuPA seeks interest at the Internal Revenue Service's
"adjusted prime rate" based on NLRB precedent. However, the
California Constitution and California law determine the
applicable rate for administrative orders under California
Law. (See the Board's discussion under remedy in San
Francisco, supra, at p.20.)
It is also appropriate to order the University to post a
notice incorporating the terms of the order. Posting of such a
notice will provide employees with notice that the University
has acted in an unlawful manner and is being required to cease
and desist from this activity and to restore the status quo.
It effectuates the purposes of the HEERA that employees be
n
h
28 28
informed of the resolution of the controversy and will announce
the University's readiness to comply with the ordered remedy.
See Placerville Union School District (9/18/78) PERB Decision
No. 69. In Pandol and Sons v. ALRB AND UFW (1979) 98
Cal.App.3d 580, 587, the California District Court of Appeal
approved a posting requirement. The U.S. Supreme Court
approved a similar posting requirement in NLRB v. Express
Publishing Co. (1941) 312 U.S. 426 [8 LRRM 514].
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to Government
Code section 3563.3, it is hereby ordered that the Regents of
the University of California and its representatives shall:
A. CEASE AND DESIST FROM:
1. Failing and refusing to meet and confer in good
faith with the Statewide University Police Association by
taking unilateral action on matters within the scope of
representation, as defined by section 3562(q), and specifically
with respect to the increase in fees charged for parking,
2. Denying the Statewide University Police
Association its right to meet and confer on behalf of unit
members by failing and refusing to meet and negotiate about
matters within the scope of representation,
29 29
3. Interfering with employees because of their
exercise of their right to select an exclusive representative
to meet and negotiate with the Regents of the University of
California on their behalf by unilaterally changing matters
within the scope of representation without meeting and
negotiating with the exclusive representative.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE EERA: EFFECTUATE THE PURPOSES OF THE EERA:
1. Rescind the increase in parking fees effective
July 1, 1981 as applied to employees in the unit represented by
the Statewide University Police Association and return to the
status quo ante in effect prior to the unlawful unilateral
change and retain the status quo ante unless and until the
parties exhaust the statutory duty to meet and confer or agree
otherwise by their adoption of a negotiating agreement.
2. Pay to employees in the unit represented by the
Statewide University Police Association the difference between
the parking fees collected since July 1, 1981 and the amount
they would have paid but for the increase effective that date,
together with interest at the lawful rate.
3. Within five (5) workdays after the date of
service of a final decision in this matter, post at all work
locations where notices to employees in the unit represented by
the Statewide University Policy Association customarily are
30 30
d t 1 lawful rate,1 and to cease and desist from implementing a
further increase to employees in the unit represented by SUPA
until it has exhausted its obligation to meet and confer.
profits from one year's increase and is verging on implementing
increases for a second year. If no "make whole" remedy is
available, the wrong-doer may profit while the recipient of the
wrongdoing is left to its efforts to bargain back what has
already been taken. Thus a bargaining order is inadequate to
right the wrong. The University will therefore be ordered to
return to the status quo ante as it existed prior to imposition
of the parking fee increase effective July 1, 1981, to pay to
employees in the unit represented by SUPA the amount of any
increases collected from them together with interest at the
lawful rate, ll an
llsuPA seeks interest at the Internal Revenue Service's
"adjusted prime rate" based on NLRB precedent. However, the
California Constitution and California law determine the
applicable rate for administrative orders under California
Law. (See the Board's discussion under remedy in San
Francisco, supra, at p.20.)
It is also appropriate to order the University to post a
notice incorporating the terms of the order. Posting of such a
notice will provide employees with notice that the University
has acted in an unlawful manner and is being required to cease
and desist from this activity and to restore the status quo.
It effectuates the purposes of the HEERA that employees be
n
n
h
28 28
title 8, part III, section 32135. Any statment of exceptions
and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service
shall be filed with the Board itself. See California
Administrative Code, title 8, part III, sections 32300 and
32305, as amended.
Dated: May 17, 1982
Sharrel J. Wyatt
Administrative Law Judge
32 32
ATTACHMENT A 10/13/80
UNIVERSITY OF CALIFORNIA - PARKING OPERATIONS
Summary of Parking Fee Schedules
Fiscal Year 1980-81 Fiscal Year 1980-81
Annual Permit Rate (1) Annual Permit Rate(l)
Cam;EUS Faculty Staff Students Daily
Fee Meter
Per Hour
Berkeley $180.00 $180. 00 $180.00 $140.00(2)
or
180.00
$ .75 $.25
Davis 48.00
18.00(6) 6)
48.00
18. 00 ( 6) 18 . 00 (6)
36.00 36 .00
24. 00 (2 24.00( )2)
18.00 18 . 00 ((6) 6)
.50
.25(6)
. 50
6) . 25 (
.25
Sacramento
Medical Center 72.00 72.00 54.00 2.00(3) 3) 2. 00 ( .25
Irvine 60.00 60.00 60.00
42.00(2) 2) 42. 00 (
.25
Irvine
Medical Center 180.00
60 .00 ( (4) 4)
180.00
60 . 00 ((4)
(5) 1. 50
60.00
1.50 .25
Los Angeles 108. 00 108.00 108. 00 2.00 1.00
Riverside 42.00 42.00 42.00 .50
San Diego 84.00 72.00 60.00 1.00 .10;
.25
San Diego
Medical Center 180.00 144.00 1.00
San Francisco 216.00 216.00 12.00 (6) 12 . 00 1.50 .50
Santa Barbara 48.00 48.00 48.00 .50
Santa Cruz 72.00 72.00 66.00
69.00 69 .00 (7) .75 .25
Notes: (1) Lower rates are charged for remote lots, carpools, evening hours,
short-time periods, etc.
(2) Residence Halls parking only (10 month).
(3) $.25 per hour with $2.00 maximum for 24 hours.
(4) $180/year fee for parking structure which is preferentially
restricted to physicians, house staff, department chairs, and
management; $60/year fee for surface lots.
(5) $.25 per hour with $1.50 maximum for 24 hours.
IN
management; $60/year fee for surface lots.
(6) Night parking only.
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33
.
ATTACHMENT B 7/1/8]
UNIVERSITY OF CALIFORNIA - PARKING OPERATIONS
Summary of Parking Fee Schedules
Fiscal Year 1981-82
Cam;eus Faculty
Annual Permit Rate ( 1)
Staff Students Daily
Fee Meter
Per Hour
Berkeley $180.00 $180.00 $140.002
or
180.00
$ .75 $.25
Davis 60.00
21.006 60.00
21.006 48.00
36.002
21. 005
.50
.256 .25
Sacramento
Medical Center 72.00 72.00 54.00 2.003 .25
Irvine 72.00 72.00 72.00
54.002 1.00 .25
Irvine
Medical Center 240.00
144.004 240.00
144.004 144.00
1.505 .25
Los Angeles 144.00 144.00 144.00 2.00 1.00
Riverside 42.00 42.00 42.00 .50
San Diego 10 8. 00 84.00 72.00 1.00 .10;
.25
San Diego
Medical Center 216.00 180.00 1.00
San Francisco 252.00 252.00 12.006 1.50 .50
Santa Barbara 60.00 60.00 60.00 .75
Santa Cruz 72.00 72.00 66.00
69.007 .75 .25
Notes: 1 Lower rates are charged for remote lots, carpools, evening hours,
short-time periods, etc.
2 Residence Halls parking only (10 month).
3 $.25 per hour with $2.00 maximum for 24 hours.
4 $240/year fee for parking structure which is preferentially
restricted to physicians, house staff, department chairs, and
management; $144/year fee for surface lots.
5 $.25 per hour with $1.50 maximum for 24 hours.
6 Night parking only.
34
7/1/8]
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