PERB Decision No. 1470H•Trustees of the California State University (PERB 1470H)
Trustees of the California State University (PERB 1470H)
PERB Decision No. 1470HCalperb5 de dez. de 2001
Texto completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA FACULTY ASSOCIATION, Charging Party, V. TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY Respondent. Case No. LA-CE-609-H PERB Decision No. 1470-H December 5, 2001 Appearances: Rothner, Segall & Greenstone by Glenn Rothner, Attorney, for California Faculty Association; Janette Redd Williams, University Counsel, for Trustees of the California State University. Before Amador, Baker and Whitehead, Members. DECISION WHITEHEAD, Member: This case is before the Public Employment Relations Board (PERB or Board) on appeal by the California Faculty Association (CF A) of a Board agent's dismissal (attached) of its unfair practice charge. The charge alleged that the Trustees of the California State University (CSU) made a unilateral change when it implemented a pay increase for employees under the provisions of a collective bargaining agreement (CBA) then being bargained for in reopener negotiations. CFA claimed that this action constituted a violation of the Higher Education Employer-Employee Relations Act (HEERA) section 3571 (b), (c) and (e). 1 1HEERA is codified at Government Code section 3560 et seq. Section 357l(b), (c) and (e) provide: It shall be unlawful for the higher education employer to do any of the following:
The Board has reviewed the entire record in this case, including the original and amended unfair practice charges and their attachments, the warning and dismissal letters, CFA's appeal2 and CSU's response. The Board finds the Board agent's dismissal letter to be free from prejudicial error and adopts it as the decision of the Board itself. ORDER The unfair practice charge in Case No. LA-CE-609-H is hereby DISMISSED WITHOUT LEA VE TO AMEND. Members Amador and Baker joined in this Decision. (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to engage in meeting and conferring with an exclusive representative. ( e) Refuse to participate in good faith in the impasse procedure set forth in Article 9 (commencing with Section 3590). 2CFA raises for the first time on appeal the claim that CSU interfered with its protected rights and derogated its authority by misrepresenting that the salary increase conformed with the CBA. A charging party may not, without good cause, present new evidence or new allegations on appeal. (PERB Regulation 32635(b ); Peralta Community College District (2001) PERB Decision No. 1418; Regents of the University of California (1998) PERB Decision No. 1271.) No good cause having been shown for CF A's failure to raise this claim before the Board agent, the Board will not address the merits of this new charge. 2
STA TE OF CALIFORNIA GRAY DAVIS, Governor PUBLIC EMPLOYMENT RELATIONS BOARD .~ 'f ~ \ ' ~ San Francisco Regional Office 1515 Clay Street, Suite 2201 Oakland, CA 9461 2 (510) 622-1016 ~ o,,. c.u.1f June 29, 2001 Edward Purcell California Faculty Association 5933 W. Century Los Angeles, CA 90045 Re: DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT California Faculty Association v. The Trustees of the University of California Unfair Practice Charge No. LA-CE-609-H; First Amended Charge Dear Mr. Purcell: The above-referenced unfair practice charge, filed February 14, 2001, alleges the Trustees of the California State University (University) unilaterally implemented a pay increase for employees. The California Faculty Association (Association or CFA) alleges this conduct violates Government Code section 3571 (b), (c) and (e) of the Higher Education Employer-Employee Relations Act (HEERA or Act). I indicated to you, in my attached letter dated May 21, 2001, that the above-referenced charge did not state a prima facie case. You were advised that, if there were any factualinaccuracies or additional facts which would correct the deficiencies explained in that letter, you should amend thecharge. You were further advised that, unless you amended the charge to state a prima facie case or withdrew it prior to May 28, 2001, the charge would be dismissed. I later extended this deadline to June 4, 2001. On June 4, 2001, Charging Party filed a first amended charge. The amended charge reiterates facts in the original charge andadds the following legal argument. Charging Party asserts my reliance on Trustees of the California State University (1996) PERB Decision No. 1174-H is misplaced, arguing that the partiesherein did not have a specific agreement as to the amount of money to be spent or how such moneys were to be dispersed. Insupport of this contention, Charging Party adds the following. Charging Party states the amount of money to be spent on compensation packages for the 2000-2001 year was clearly part of the parties' reopener negotiations. To that end, Charging Party points to the Factfinders Report which states that the total
Dismissal Letter LA-CE-609-H Page 2 amount of compensation is open for negotiation. Additionally, Charging Party asserts the June 4, 1999, agreement does not specify how the moneys are to be distributed. Specifically, Charging Party states: The June 4 Memorandum of Understanding did not establish the actual dollar or percentage value of the 2000 settlement, leaving both topics to be negotiated subsequently. Assuming Charging Party's facts as true, however, does not lead to the conclusion that the University unilaterally implemented the salary increase. Instead, such facts merely support the holding in Trustees and the rationale of my May 21, 2001, letter. The University and the Association are parties to a collective bargaining agreement (Agreement) which expires on June 31, 2001. Additionally, the parties have signed a memorandum of understanding, dated June 4, 1999, (June 4, 1999, agreement) dealing with salary increases for the 2000-2001 fiscal year. Article 3.1 of the Agreement states the following as a contractual zipper clause: This Agreement constitutes the entire Agreement of the Trustees and the CFA~ arrived at as a result of meeting and conferring. The terms and conditions may be altered, changed, added to, deleted from, ormodified only through the voluntary and mutual consent of the parties in an expressed written amendment to the Agreement. This Agreement supersedes all previous agreements, understandings, policies, and prior practices directly related to matters included within this Agreement. The June 4, 1999, memorandum of understanding states in relevantpart: Fiscal Year 2000/2001 Increases If the final gross general fund budget of the CSU has increased by at least $180 million(including both general fund and student fee revenue) from fiscal year 1999/2000 to fiscalyear 2000/01, then the total compensation increases to faculty unit employees shall be distributed as follows: (a) forty percent (40%) of the increases shall be for faculty merit increases, including those for SSI-
Dismissal
Letter
LA-CE-609-H
Page
3
eligible
employees, and
(b)
the
remaining
sixty
percent
(60%)
shall
be
for
the
general
salary
increase.
If
the increase
in
the
final
gross general
fund budget
is
less
than
$180
million,
then
the
parties shall
give
priority
to
funding
a
service
salaryincrease,
and
shall
reopen
negotiations
solely
on
the
amount
and
distribution
of the
general
salary
and
merit
salary increases.
The
CSU
Board
of Trustees
shall
adopt
a
budget
request
that will
fund
at least
a
6%
salary
increase for the faculty.
The
amount
of
this
request
will
be
62.
4
million
as_$_uming
a
6%
salary
increase
in fiscal
year
-
1999/2000. This
amount
may
change
due
toretirement
adjustments
in
the
compensation
base.
If
the
salary
increase
is
less
than
6%
in
fiscal
year
1999/2000
this
number
will
be
adjusted proportionately.
Compensation
will
be
the highest
priority
for requests
in the
Trustees'
budget
after
recurring costs
and
enrollment.
It
is
undisputed
that
the
University's
budget
for
2000-2001
increased
by
at least
$180
million.
The
Agreement
also
provides the University
with
guidelines
on
how
the
SSI
funds
are to
be
calculated
and
distributed.
With
regardto
SSI
calculation,
the
Agreement
states:
31.43:
As
part
of the
CSU
merit
program
in
fiscal
years
1999/2000 and 2000/01,
there
shall
be
a
separate
pool for bargaining
unit
members
eligible
for Service Salary Step
Increases.
It
shall
be
calculated
by
multiplying the
total salary
and
benefits ofsuch employees by two and
sixty-five
one-
hundredths percent (2.65). This
provision
shall
not
be
subject to renegotiation during
reopener bargaining,
if
any,
in these years.
In January 2001,
the University informed bargaining unit
members
that they
would be receiving
a
pay
raise in
conformance w{th theJune 4, 1999, agreement and
Article
31.43 of the Agreement.
Charging Party asserts the University implemented
a
unilateral
change when
it
implemented the terms of the June 4, 1999,memorandum. However, as stated in
my May 21, 2001,
letter, the
University's actions do not violate the
HEERA.Dismissal Letter LA-CE-609-H Page 4 Charging Party alleges the University committed a unilateral change when it implemented provisions of the June 4, 1999, agreement, which had been an issue in reopener negotiations. As noted above, PERB's holding in Trustees, serves as clear precedent in such cases. In Trustees, supra, the Board held that reopened provisions were not effectively terminated by reopening, but rather status quo prevailed where the parties had previously agreed that the contract terms could not be deleted except by mutual consent. In that case, the University and the Academic Professionals of California had been engaged in reopener negotiations over severalissues, including the employer's contribution to health benefits and contracting out. After completing mediation and factfinding, the parties remained at impasse. The union then contended the reopened articles were no longer operative, and as such, the union was not bound by the contracting out language. The University argued, however, that status quo prevailed, and as such, the parties were bound both by the contracting out provisions and the health contribution requirements in the agreement, as no new agreement had been reached. In dismissing the union's claim of unilateral change, theAdministrative Law Judge noted that the parties made a clear statement, through their zipper clause, that the provisions of their contract could not be changed without voluntary, mutual consent. As such, the ALJ stated: Since I conclude that the parties previously had agreed that contract terms could not be deleted except by mutual consent, I reject the argument that the clauses were terminated by the reopening. The clauses remained in effect and the University. made no change in a negotiable subject. Facts herein are nearly identical to those in Trustees. Charging Party and the University are parties to a collective bargaining agreement which includes a zipper clause identical in terms to the one found in Trustees, supra. Additionally, the parties had completed impasse procedures and had reached a stalemate in post- factfinding negotiations. As in Trustees, the University then implemented the terms and conditions of the June 4, 1999,memorandum of understanding by issuing pay increases and merit salary increases pursuant to the agreed-upon contractual provisions. The University's reinstatement of reopened clausesdid not constitute a unilateral change, but merely as assertionthat the status quo between the parties remained in effect.(Trustees of the California State University (1996) PERB DecisionNo. 1174-H, p.l.)
Dismissal Letter LA-CE-609-H Page 5 Charging Party contends the parties did not agree on an actual dollar amount or percentage value for the 2000-2001 year. However, such facts do not render the University's actions unlawful. As in Trustees, the parties were negotiating reopeners and as such were in the process of attempting to increase the value of some benefits. The mere fact that the parties did notreach an agreement did not render the reopened contractprovisions null and void. Trustees does not stand for the position that the University is no longer obligated to continue negotiating the total dollar value of the salary increases. Indeed, as stated in my May 21, 2001, letter, the parties are free to agree to higher salary increases during reopeners. However, the failure to reach an agreement does not repudiate the terms and conditions already agreed upon by the parties. The June 4, 1999, memorandum, clearly sets forth the actions theUniversity must take if the budget is over 180 million. Moreover, the memorandum clearly requires the University to seek at least a 6% salary increase. It appears the University'sactions are consistent with the memorandum, and as such, theUniversity did not violate the HEERA. Right to Appeal Pursuant to Public Employment Relations Board regulations, you may obtain a review of this dismissal of the charge by filing an appeal to the Board itself within twenty (20) calendar days after service of this dismissal. (Cal. Code Regs., tit. 8, sec. 32635(a) .) Any document filed with the Board must contain the case name and number, and the original and five (5) copies of all documents must be provided to the Board. A document is considered "filed" when actually received beforethe close of business (5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail, as shownon the postal receipt or postmark, or delivered to a common carrier promising overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing. (Cal. Code Regs., tit. 8, sec. 32135(a); see also Cal. Code Regs., tit. 8, sec. 32130.) A document is also considered "filed" when received by facsimiletransmission before the close of business on the last day forfiling together with a Facsimile Transmission Cover Sheet whichmeets the requirements of Cal. Code Regs., tit. 8, sec. 32135(d), provided the filing party also places the original, together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code. Regs., tit. 8, secs. 32135 (b), (c) and (d) ; see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.) The Board's address is:
Dismissal Letter LA-CE-609-H Page 6 Public Employment Relations Board Attention: Appeals Assistant 1031 18th Street Sacramento, CA 95814-4174 FAX: (916) 327-7960 If you file a timely appeal of the refusal to issue a complaint, any other party may file with the Board an original and five copies of a statement in opposition within twenty (20) calendar days following the date of service of the appeal. (Cal. Code Regs., tit. 8, sec. 32635(b).) Service All documents authorized to be filed herein must also be "served" upon all parties to the proceeding, and a "proof of service" must accompany each copy of a document served upon a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required contents and a sample form.) Thedocument will be considered properly "served" when personallydelivered or deposited in the first-class mail, postage paid and properly addressed. A document filed by facsimile transmission may be concurrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, sec. 32135 (c).) Extension of Time A request for an extension of time, in which to file a document with the Board itself, must be in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days beforethe expiration of the time required for filing the document. The request must indicate good cause for and, if known, the position of each other party regarding the extension, and shall be accompanied by proof of service of the request upon each party. (Cal. Code Regs., tit. 8, sec. 32132.)
Dismissal Letter LA-CE-609-H Page 7 Final Date If no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired. Sincerely, ROBERT THOMPSON Deputy General Counsel By Kristin L. Rosi Regional Attorney Attachment cc: Janette Redd-Williams
ST A TE OF CALIFORNIA GRAY DAVIS, Governor PUBLIC EMPLOYMENT RELATIONS BOARD San Francisco Regional Office 1 51 5 Clay Street, Suite 2201 Oakland, CA 9461 2 (510) 622-1016 May 21, 2001 Edward Purcell California Faculty Association 5933 W. Century Los Angeles, CA 90045 Re: WARNING LETTER California Faculty Association v. The Trustees of the University of California Unfair Practice Charge No. LA-CE-609-H Dear Mr. Purcell: The above-referenced unfair practice charge, filed February 14, 2001, alleges the Trustees of the California State University (University) unilaterally implemented a pay increase for employees. The California Faculty Association (Association or CFA) alleges this conduct violates Government Code section 3571 (b), (c) and (e) of the Higher Education Employer-Employee Relations Act (HEERA or Act) . 1 Investigation of the charge revealed the following. The Association is the exclusive bargaining representative for the University's Faculty unit. The University and the Associationare parties to a collective bargaining agreement (Agreement) which expires on June 31, 2001. Additionally, the parties have signed a memorandum of understanding, dated June 4, 1999, dealingwith salary increases for the 2000-2001 fiscal year. Article 3.1 of the Agreement states the following as a contractual zipper clause: This Agreement constitutes the entire Agreement of the Trustees and the CFA, arrived at as a result of meeting and conferring. The terms and conditions may be altered, changed, added to, deleted from, ormodified only through the voluntary and 1 As the conduct complained of occurred while the parties were at impasse, Government Code section 3571(c) is inapplicable. If Charging Party wishes to amend this charge, such a change should be reflected.
Warning Letter LA-CE-609-H Page 2 mutual consent of the parties in an expressed written amendment to the Agreement. This Agreement supersedes all previous agreements, understandings, policies, and prior practices directly related to matters included within this Agreement. The June 4, 1999, memorandum of understanding states in relevant part: Fiscal Year 2000/2001 Increases If the final gross general fund budget of the CSU has increased by at least $180 million (including both general fund and student fee revenue) from fiscal year 1999/2000 to fiscal year 2000/01, then the total compensation increases to faculty unit employees shall be distributed as follows: (a) forty percent (40%) of the increases shall be for faculty merit increases, including those for SSI- eligible employees, and (b) the remaining sixty percent (60%) shall be for the general salary increase. If the increase in the final gross general fund budget is less than $180 million, then the parties shall give priority to funding a service salary increase, and shall reopen negotiations solely on the amount and distribution of the general salary and merit salary increases. The CSU Board of Trustees shall adopt a budget request that will fund at least a 6% salary increase for the faculty. The amount of this request will be 62.4 million assuming a 6% salary increase in fiscal year 1999/2000. This amount may change due to retirement adjustments in the compensation base. If the salary increase is less than 6% in fiscal year 1999/2000 this number will be adjusted proportionately. Compensation will be the highest priority for requests in the Trustees' budget after recurring costs and enrollment. It is undisputed that the University's budget for 2000-2001 increased by at least $180 million. The Agreement also provides the University with guidelines on how the SSI funds are to be calculated and distributed. With regard to SSI calculation, the Agreement states:
Warning Letter LA-CE-609-H Page 3 31.43: As part of the CSU merit program in fiscal years 1999/2000 and 2000/01, there shall be a separate pool for bargaining unit members eligible for Service Salary Step Increases. It shall be calculated by multiplying the total salary and benefits of such employees by two and sixty-five one- hundredths percent (2.65). This provision shall not be subject to renegotiation during reopener bargaining, if any, in these years. Article 31.53 of the Agreement states the following regarding reopeners: The parties will reopen negotiations pursuant to HEERA on Article 31, Salaries and on Article 32, Benefits for fiscal years 2000/2001 in accordance with the timelinesprovided in provision 40.2 of this Agreement. In March 2000, the parties commenced reopener negotiations in accordance with Article 31.53. During the first bargaining session, the Association introduced an initial proposal which included a variety of new wage and benefit programs described ingeneral terms. In July 2000, PERB declared the parties at impasse. The parties were unable to reach agreement with theassistance of a mediator and ultimately proceeded to factfinding. The factfinders report was issued in November 2000. The parties have engaged in post-factfinding negotiations without resolution of the outstanding issues. On January 26, 2001, University Chancellor, Charles Reed, informed Association President, Susan Meisenhelder, that he was pleased the faculty would be receiving the pay raises theydeserved. Additionally, Mr. Reed requested the parties form a task force to make recommendations on the unresolved compensation issues. On January 26, 2001, bargaining unit employees at CaliforniaState University-Chico, received an electronic message stating they would be receiving pay increases in accordance with thecontractual provisions.cited above. Based on the above stated facts, the charge as presently written fails to state a prima facie violation of the HEERA, for thereasons provided below. Charging Party contends the University implemented a unilateralchange when it implemented the terms of the June 4, 1999,memorandum of understanding, and increased bargaining unit
Warning Letter LA-CE-609-H Page 4 members salary accordingly. The University contends they merely implemented contractual provisions as called for in the Agreement. It is well established that an employer's pre-impasse unilateral change of a past practice violates the duty to meet and confer in good faith. (Grant Joint .Union High School District (1982) PERB Decision No. 196.) As such changes are inherently destructive of employee rights, they are considered a per se violation of the duty to negotiate in good faith. (Regents of the University of California (1983) PERB Decision No. 356-H.) Herein, however, the facts are different. Unlike the normal repudiation theory, Charging Party alleges herein that the University made a unilateral change when it implemented provisions of the collective bargaining agreement currently being bargained for in reopener negotiations. PERB has, however, addressed this matter, and its holding in Trustees of the University of California (1996) PERB Decision No. 1174-H, serves as clear precedent in such cases. In Trustees, supra, the Board held that reopened provisions were not effectively terminated by reopening, but rather status quo prevailed where the parties had previously agreed that the contract terms could not be deleted except by mutual consent. In that case, the University and the Academic Professionals of California had been engaged in reopener negotiations over several issues, including the employer's contribution to health benefits and contracting out. After completing mediation and factfinding, the parties remained at impasse. The union then contended the reopened articles were no longer operative, and as such, the union was not bound by the contracting out language. The University argued, however, that status quo prevailed, and as such, the parties were bound both by the contracting out provisions and the health contribution requirements in the agreement, as no new agreement had been reached. In dismissing the union's claim of unilateral change, the Administrative Law Judge noted that the parties made a clear statement, through their zipper clause, that the provisions of their contract could not be changed without voluntary, mutual consent. As such, the ALJ stated: Since I conclude that the parties previously had agreed that contract terms could not be deleted except by mutual consent, I reject the argument that the clauses were terminated by the reopening. The clauses remained in effect and the University. made no change in a negotiable subject.
Warning Letter LA-CE-609-H Page 5 Facts herein are nearly identical to those in Trustees. Charging Party and the University are parties to a collective bargaining agreement which includes a zipper clause identical in terms to the one found in Trustees, supra. Additionally, the parties had completed impasse procedures and had reached a stalemate in post- factfinding negotiations. As in Trustees, the University then implemented the terms and conditions of the June 4, 1999, memorandum of understanding by issuing pay increases and merit salary increases pursuant to the agreed-upon contractual provisions. The University's reinstatement of reopened clauses did not constitute a unilateral change, but merely as assertionthat the status quo between the parties remained in effect. (Trustees of the California State University (1996) PERB Decision No. i174-H, p.l.) Charging Party contends Trustees, supra, is not applicable in this situation. However, Charging Party fails to explain why it should not be bound by the zipper clause and the terms and conditions of the June 4, 1999, agreement. While the parties are free to agree to a higher salary increase in reopeners, the parties failure to reach an agreement does not repudiate the terms and conditions already agreed upon. As such, this charge fails to state a prima facie violation of the HEERA. For these reasons the charge, as presently written, does not state a prima facie case. If there are any factual inaccuracies in this letter or additional facts which would correct the deficiencies explained above, please amend the charge. The amended charge should be prepared on a standard PERB unfairpractice charge form, clearly labeled First Amended Charge, contain all the facts and allegations you wish to make, andbe signed under penalty of perjury by the charging party. Theamended charge must have the case number written on the top right hand corner of the charge form. The amended charge must be served on the respondent's representative and the original proofof service must be filed with PERB. If I do not receive an amended charge or withdrawal from you before May 28, 2001, I shall dismiss your charge. If you have any questions, please call me at (510) 622-1016. Sincerely, kkZ- Kristin L. Rosi Regional Attorney
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party, Case No. LA-CE-609-H
PERB Decision No. 1470-H
December 5, 2001
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
Respondent.
Appearances: Rothner, Segall & Greenstone by Glenn Rothner, Attorney, for California
Faculty Association; Janette Redd Williams, University Counsel, for Trustees of the California
State University.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Faculty Association (CFA) of a Board agent's
dismissal (attached) of its unfair practice charge. The charge alleged that the Trustees of the
California State University (CSU) made a unilateral change when it implemented a pay
increase for employees under the provisions of a collective bargaining agreement (CBA) then
being bargained for in reopener negotiations. CFA claimed that this action constituted a
violation of the Higher Education Employer-Employee Relations Act (HEERA) section 3571
(b), (c) and (e).!
'HEERA is codified at Government Code section 3560 et seq. Section 3571(b), (c) and
(e) provide:
It shall be unlawful for the higher education employer to do any of the
following:
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges and their attachments, the warning and dismissal letters,
CFA's appeal2 and CSU's response. The Board finds the Board agent's dismissal letter to be
free from prejudicial error and adopts it as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-609-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Baker joined in this Decision.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
( e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).
2CFA raises for the first time on appeal the claim that CSU interfered with its protected
rights and derogated its authority by misrepresenting that the salary increase conformed with
the CBA. A charging party may not, without good cause, present new evidence or new
allegations on appeal. (PERB Regulation 32635(b ); Peralta Community College District
(2001) PERB Decision No. 1418; Regents of the University of California (1998) PERB
Decision No. 1271.) No good cause having been shown for CF A's failure to raise this claim
before the Board agent, the Board will not address the merits of this new charge.
2
STA
TE
OF
CALIFORNIA
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
.~
'f
~
\
'
~
San Francisco Regional Office
1515
Clay
Street,
Suite 2201
Oakland, CA
9461
2
(510)
622-1016
~
o,,.
c.u.1f
June
29,
2001
Edward
Purcell
California
Faculty Association
5933
W.
Century
Los
Angeles,
CA
90045
Re:
DISMISSAL
OF
CHARGE/REFUSAL
TO
ISSUE
COMPLAINT
California
Faculty Association
v.
The
Trustees of the
University
of
California
Unfair
Practice
Charge
No. LA-CE-609-H;
First
Amended
Charge
Dear
Mr.
Purcell:
The
above-referenced
unfair practice
charge,
filed
February 14,
2001,
alleges the Trustees of the California State University
(University)
unilaterally
implemented
a
pay
increase for
employees.
The
California Faculty Association (Association
or
CFA)
alleges
this
conduct
violates
Government
Code
section
3571
(b),
(c)
and
(e)
of the
Higher Education
Employer-Employee
Relations
Act
(HEERA
or Act).
I
indicated to
you,
in
my
attached
letter
dated
May
21, 2001,
that
the above-referenced charge did not
state
a
prima
facie
case.
You
were
advised
that,
if
there
were any
factualinaccuracies or additional facts
which would
correct
the
deficiencies
explained in that
letter,
you
should
amend
thecharge.
You
were
further
advised
that,
unless
you
amended
the
charge
to
state
a
prima
facie
case or
withdrew
it
prior to
May
28, 2001,
the charge
would be
dismissed.
I
later
extended
this
deadline to
June 4, 2001.
On
June 4, 2001, Charging
Party filed
a
first
amended
charge.
The amended
charge
reiterates facts in the
original
charge andadds
the following legal
argument. Charging
Party asserts
my
reliance
on
Trustees of the California State University
(1996)
PERB
Decision
No. 1174-H
is
misplaced, arguing that the
partiesherein did not have
a
specific
agreement as to the
amount
of
money
to
be spent or
how
such
moneys were
to
be
dispersed. Insupport of this contention, Charging Party adds the following.
Charging Party states the amount of
money
to be spent on
compensation packages for the 2000-2001 year was
clearly part of
the parties' reopener negotiations.
To
that end, Charging Party
points to the Factfinders Report which states that the total
Dismissal
Letter
LA-CE-609-H
Page
2
amount
of
compensation
is
open
for negotiation. Additionally,
Charging
Party
asserts
the
June
4, 1999,
agreement does
not
specify
how
the
moneys
are
to
be
distributed. Specifically,
Charging
Party
states:
The
June
4
Memorandum
of
Understanding
did
not
establish
the
actual
dollar
or
percentage
value of the
2000
settlement, leaving both
topics to
be
negotiated
subsequently.
Assuming
Charging
Party's facts
as
true,
however,
does
not
lead
to the conclusion
that
the University
unilaterally
implemented
the
salary increase. Instead,
such
facts
merely
support
the
holding
in
Trustees
and
the
rationale
of
my
May
21, 2001,
letter.
The
University
and
the Association are
parties
to
a
collective
bargaining
agreement
(Agreement) which
expires
on
June
31,
2001.
Additionally, the
parties
have
signed
a
memorandum
of
understanding, dated
June 4, 1999, (June 4, 1999,
agreement)
dealing with
salary
increases for
the
2000-2001
fiscal
year.
Article
3.1 of the
Agreement
states
the following as
a
contractual zipper clause:
This
Agreement
constitutes
the
entire
Agreement
of the Trustees
and
the
CFA~
arrived at
as
a
result
of
meeting and
conferring.
The
terms
and
conditions
may
be
altered,
changed, added
to, deleted
from,
ormodified only through the voluntary
and
mutual consent of the
parties in
an
expressed
written
amendment
to the
Agreement.
This
Agreement
supersedes
all
previous agreements,
understandings,
policies,
and
prior practices
directly related to matters included within
this
Agreement.
The
June 4, 1999,
memorandum
of understanding
states in relevantpart:
Fiscal
Year 2000/2001
Increases
If
the final gross general
fund budget of the
CSU
has increased
by
at least
$180
million(including both general
fund and
student fee
revenue) from
fiscal year 1999/2000
to fiscalyear 2000/01, then the total
compensation
increases to faculty unit
employees
shall
be
distributed as follows:
(a)
forty percent
(40%)
of the increases shall be for faculty
merit increases, including those for SSI-
Dismissal
Letter
LA-CE-609-H
Page
3
eligible
employees, and
(b)
the
remaining
sixty
percent
(60%)
shall
be
for
the
general
salary
increase.
If
the increase
in
the
final
gross general
fund budget
is
less
than
$180
million,
then
the
parties shall
give
priority
to
funding
a
service
salaryincrease,
and
shall
reopen
negotiations
solely
on
the
amount
and
distribution
of the
general
salary
and
merit
salary increases.
The
CSU
Board
of Trustees
shall
adopt
a
budget
request
that will
fund
at least
a
6%
salary
increase for the faculty.
The
amount
of
this
request
will
be
62.
4
million
as_$_uming
a
6%
salary
increase
in fiscal
year
-
1999/2000. This
amount
may
change
due
toretirement
adjustments
in
the
compensation
base.
If
the
salary
increase
is
less
than
6%
in
fiscal
year
1999/2000
this
number
will
be
adjusted proportionately.
Compensation
will
be
the highest
priority
for requests
in the
Trustees'
budget
after
recurring costs
and
enrollment.
It
is
undisputed
that
the
University's
budget
for
2000-2001
increased
by
at least
$180
million.
The
Agreement
also
provides the University
with
guidelines
on
how
the
SSI
funds
are to
be
calculated
and
distributed.
With
regardto
SSI
calculation,
the
Agreement
states:
31.43:
As
part
of the
CSU
merit
program
in
fiscal
years
1999/2000 and 2000/01,
there
shall
be
a
separate
pool for bargaining
unit
members
eligible
for Service Salary Step
Increases.
It
shall
be
calculated
by
multiplying the
total salary
and
benefits ofsuch employees by two and
sixty-five
one-
hundredths percent (2.65). This
provision
shall
not
be
subject to renegotiation during
reopener bargaining,
if
any,
in these years.
In January 2001,
the University informed bargaining unit
members
that they
would be receiving
a
pay
raise in
conformance w{th theJune 4, 1999, agreement and
Article
31.43 of the Agreement.
Charging Party asserts the University implemented
a
unilateral
change when
it
implemented the terms of the June 4, 1999,memorandum. However, as stated in
my May 21, 2001,
letter, the
University's actions do not violate the
HEERA.
Dismissal
Letter
LA-CE-609-H
Page
4
Charging
Party
alleges
the
University
committed
a
unilateral
change
when
it
implemented
provisions of the
June
4, 1999,
agreement,
which had been an
issue in
reopener
negotiations.
As
noted
above,
PERB's
holding
in Trustees, serves as
clear
precedent
in
such
cases.
In
Trustees, supra, the
Board
held
that
reopened
provisions
were
not
effectively
terminated
by
reopening, but
rather status
quo
prevailed
where
the
parties
had
previously
agreed
that
the
contract
terms
could not
be
deleted
except
by mutual
consent.
In
that
case,
the University
and
the
Academic
Professionals of
California
had been
engaged
in
reopener
negotiations
over
severalissues, including the employer's
contribution
to
health
benefits
and
contracting out. After
completing mediation
and
factfinding,
the
parties
remained
at
impasse.
The
union then contended
the
reopened
articles
were
no
longer
operative,
and
as such,
the
union
was
not
bound by
the
contracting
out language.
The
University
argued,
however,
that status
quo
prevailed,
and
as
such,
the
parties
were bound
both
by
the contracting
out
provisions
and
the health contribution
requirements
in
the
agreement,
as
no
new
agreement had
been
reached.
In dismissing the union's
claim of
unilateral
change,
theAdministrative
Law
Judge
noted
that
the
parties
made a
clear
statement, through
their
zipper clause,
that
the provisions of
their
contract
could not
be changed
without voluntary,
mutual
consent.
As
such,
the
ALJ
stated:
Since
I
conclude
that
the
parties
previously
had
agreed
that contract
terms could not
be
deleted
except
by mutual
consent,
I
reject
the
argument
that
the clauses
were
terminated
by
the reopening.
The
clauses
remained
in
effect
and
the
University.
made no
change
in
a
negotiable subject.
Facts herein are nearly identical to those in Trustees. Charging
Party
and
the University are
parties to
a
collective bargaining
agreement which
includes
a
zipper clause identical in
terms
to
the
one found
in Trustees, supra. Additionally, the
parties
had
completed impasse procedures
and had reached
a
stalemate in post-
factfinding negotiations.
As
in Trustees, the University then
implemented
the terms and
conditions of the June 4, 1999,memorandum
of understanding
by
issuing
pay increases and
merit
salary increases pursuant to the agreed-upon contractual
provisions.
The
University's reinstatement of reopened clausesdid not constitute
a
unilateral
change, but merely as assertionthat the status
quo between the parties remained in effect.(Trustees of the California State University
(1996) PERB
DecisionNo. 1174-H,
p.l.)
Dismissal
Letter
LA-CE-609-H
Page
5
Charging
Party
contends
the
parties
did
not agree
on
an
actual
dollar
amount
or
percentage value
for
the
2000-2001
year.
However,
such
facts
do
not
render the
University's actions
unlawful.
As
in
Trustees,
the
parties
were
negotiating
reopeners
and
as
such
were
in
the process of attempting to increase
the
value of
some
benefits.
The
mere
fact
that
the
parties
did notreach
an agreement
did
not
render the
reopened
contractprovisions
null
and
void. Trustees
does
not
stand
for the
position that
the University
is
no
longer obligated to continue
negotiating
the
total
dollar
value of the
salary increases.
Indeed, as
stated
in
my May
21, 2001,
letter,
the
parties are
free to
agree
to
higher
salary
increases
during reopeners.
However,
the
failure
to
reach
an agreement does
not
repudiate
the
terms
and
conditions already
agreed
upon
by
the
parties.
The
June 4,
1999,
memorandum,
clearly sets forth
the
actions theUniversity
must
take
if
the
budget
is
over
180
million.
Moreover,
the
memorandum
clearly
requires
the University
to
seek
at least
a
6%
salary
increase.
It
appears the
University'sactions are
consistent
with the
memorandum,
and
as such,
theUniversity did not
violate
the
HEERA.
Right
to
Appeal
Pursuant
to Public
Employment
Relations
Board
regulations,
you
may
obtain
a
review of
this
dismissal of the
charge
by
filing
an
appeal
to the
Board
itself
within
twenty
(20)
calendar days
after
service
of
this
dismissal.
(Cal.
Code
Regs.,
tit.
8,
sec.
32635(a) .)
Any
document
filed
with the
Board must
contain
the case
name
and number, and
the
original
and
five
(5)
copies
of
all
documents must be
provided
to the
Board.
A
document
is
considered "filed"
when
actually
received
beforethe close of business
(5
p.m.) on
the
last
day
set for
filing
or
when
mailed
by
certified
or
Express United
States
mail, as
shownon
the postal receipt or
postmark,
or delivered to
a common
carrier
promising overnight delivery, as
shown on
the
carrier's
receipt,
not
later
than the
last
day
set for filing.
(Cal.
Code
Regs.,
tit.
8,
sec. 32135(a); see also
Cal.
Code
Regs.,
tit.
8,
sec.
32130.)
A
document
is also considered "filed"
when
received
by
facsimiletransmission before the close of business
on
the
last
day
forfiling together with
a
Facsimile Transmission Cover Sheet whichmeets the requirements of Cal.
Code
Regs.,
tit.
8,
sec. 32135(d),
provided the
filing party also places the original, together with
the required
number
of copies and proof of service, in the U.S.
mail. (Cal. Code. Regs.,
tit.
8, secs.
32135 (b),
(c) and
(d)
;
see also Cal. Code Regs.,
tit.
8, secs.
32090 and 32130.)
The Board's address is:
Dismissal
Letter
LA-CE-609-H
Page
6
Public
Employment
Relations
Board
Attention:
Appeals
Assistant
1031
18th
Street
Sacramento,
CA
95814-4174
FAX:
(916)
327-7960
If
you
file
a
timely
appeal
of the
refusal to issue
a
complaint,
any
other party
may
file
with the
Board
an
original
and
five
copies
of
a
statement
in
opposition within
twenty
(20)
calendar
days
following
the date
of
service
of
the
appeal.
(Cal.
Code
Regs.,
tit.
8,
sec.
32635(b).)
Service
All
documents
authorized to
be
filed
herein
must
also
be
"served"
upon
all
parties
to
the
proceeding,
and
a
"proof of
service"
must accompany
each
copy
of
a
document
served
upon
a
party
or
filed
with the
Board
itself.
(See
Cal.
Code
Regs.,
tit.
8,
sec.
32140
for
the required contents
and
a
sample form.) Thedocument
will
be
considered properly
"served"
when
personallydelivered or deposited
in
the
first-class
mail, postage
paid
and
properly addressed.
A
document
filed
by
facsimile transmission
may
be
concurrently served
via facsimile transmission
on
all
parties
to the proceeding.
(Cal.
Code
Regs.,
tit.
8,
sec.
32135
(c).)
Extension of
Time
A
request for
an
extension of time,
in
which
to
file
a
document
with the
Board
itself,
must be
in writing
and
filed
with
the
Board
at
the previously
noted address.
A
request for
an
extension
must
be
filed at least
three
(3)
calendar
days
beforethe expiration of the
time
required for
filing
the
document.
The
request
must
indicate
good
cause
for
and,
if
known,
the
position
of each
other party
regarding the extension,
and
shall
be accompanied by
proof of service of the request
upon
each
party.
(Cal.
Code
Regs.,
tit.
8,
sec.
32132.)
Dismissal
Letter
LA-CE-609-H
Page
7
Final
Date
If
no
appeal
is
filed
within the
specified
time
limits,
the
dismissal
will
become
final
when
the
time
limits
have
expired.
Sincerely,
ROBERT
THOMPSON
Deputy
General
Counsel
By
Kristin
L.
Rosi
Regional
Attorney
Attachment
cc:
Janette
Redd-Williams
ST A
TE
OF
CALIFORNIA
GRAY
DAVIS, Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite 2201
Oakland, CA
9461
2
(510)
622-1016
May
21,
2001
Edward
Purcell
California
Faculty Association
5933
W.
Century
Los
Angeles,
CA
90045
Re:
WARNING
LETTER
California
Faculty Association
v.
The
Trustees of the
University of
California
Unfair
Practice
Charge
No. LA-CE-609-H
Dear
Mr.
Purcell:
The
above-referenced
unfair practice
charge,
filed
February 14,
2001,
alleges
the Trustees of the California State University
(University)
unilaterally
implemented
a
pay
increase for
employees.
The
California Faculty Association (Association
or
CFA)
alleges
this
conduct
violates
Government
Code
section
3571
(b),
(c)
and
(e)
of the
Higher Education
Employer-Employee
Relations
Act
(HEERA
or
Act)
. 1
Investigation of the
charge
revealed the following.
The
Association
is
the exclusive bargaining
representative for the
University's Faculty
unit.
The
University
and
the Associationare
parties to
a
collective
bargaining
agreement
(Agreement)
which
expires
on June 31, 2001.
Additionally, the
parties
have
signed
a memorandum
of understanding, dated June 4, 1999,
dealingwith
salary increases for the
2000-2001
fiscal
year.
Article
3.1 of the
Agreement
states
the following as
a
contractual zipper clause:
This
Agreement
constitutes
the
entire
Agreement
of the Trustees
and
the
CFA,
arrived at as
a
result
of meeting and
conferring.
The
terms and
conditions
may
be
altered,
changed, added to, deleted
from,
ormodified only through the voluntary and
1 As
the conduct complained of occurred while the parties
were
at impasse, Government Code
section 3571(c)
is inapplicable.
If Charging Party wishes to amend
this charge, such a change
should be reflected.
Warning Letter
LA-CE-609-H
Page 2
mutual consent of the parties in an expressed
written amendment to the Agreement. This
Agreement supersedes all previous agreements,
understandings, policies, and prior practices
directly related to matters included within
this Agreement.
The June 4, 1999, memorandum of understanding states in relevant
part:
Fiscal Year 2000/2001 Increases
If the final gross general fund budget of the
CSU has increased by at least $180 million
(including both general fund and student fee
revenue) from fiscal year 1999/2000 to fiscal
year 2000/01, then the total compensation
increases to faculty unit employees shall be
distributed as follows: (a) forty percent
(40%) of the increases shall be for faculty
merit increases, including those for SSI-
eligible employees, and (b) the remaining
sixty percent (60%) shall be for the general
salary increase. If the increase in the
final gross general fund budget is less than
$180 million, then the parties shall give
priority to funding a service salary
increase, and shall reopen negotiations
solely on the amount and distribution of the
general salary and merit salary increases.
The CSU Board of Trustees shall adopt a
budget request that will fund at least a 6%
salary increase for the faculty. The amount
of this request will be 62.4 million assuming
a 6% salary increase in fiscal year
1999/2000. This amount may change due to
retirement adjustments in the compensation
base. If the salary increase is less than 6%
in fiscal year 1999/2000 this number will be
adjusted proportionately. Compensation will
be the highest priority for requests in the
Trustees' budget after recurring costs and
enrollment.
It is undisputed that the University's budget for 2000-2001
increased by at least $180 million.
The Agreement also provides the University with guidelines on how
the SSI funds are to be calculated and distributed. With regard
to SSI calculation, the Agreement states:
Warning
Letter
LA-CE-609-H
Page
3
31.43:
As
part
of
the
CSU
merit
program
in
fiscal
years
1999/2000 and 2000/01,
there
shall
be
a
separate
pool
for
bargaining
unit
members
eligible
for
Service Salary
Step
Increases.
It
shall
be
calculated
by
multiplying
the
total
salary
and
benefits
of
such
employees
by
two
and
sixty-five
one-
hundredths percent (2.65).
This
provision
shall
not
be
subject to renegotiation
during
reopener bargaining,
if
any,
in
these years.
Article
31.53
of
the
Agreement
states
the following
regarding
reopeners:
The
parties
will
reopen
negotiations pursuant
to
HEERA
on
Article
31,
Salaries
and on
Article
32,
Benefits for
fiscal
years
2000/2001
in
accordance
with the
timelinesprovided
in
provision
40.2
of
this
Agreement.
In
March
2000,
the
parties
commenced
reopener
negotiations
in
accordance
with
Article
31.53. During
the
first
bargaining
session, the Association introduced
an
initial
proposal
which
included
a
variety
of
new wage
and
benefit
programs
described ingeneral terms. In July
2000,
PERB
declared the
parties at
impasse.
The
parties
were
unable
to
reach
agreement
with
theassistance of
a
mediator
and
ultimately
proceeded
to factfinding.
The
factfinders report
was
issued in
November
2000.
The
parties
have engaged
in post-factfinding negotiations
without
resolution
of
the outstanding issues.
On
January
26, 2001,
University Chancellor, Charles
Reed,
informed
Association President,
Susan Meisenhelder,
that
he
was
pleased the
faculty
would be
receiving the
pay
raises
theydeserved.
Additionally,
Mr.
Reed
requested the
parties
form
a
task force to
make
recommendations on
the unresolved compensation
issues.
On
January
26, 2001,
bargaining unit
employees
at CaliforniaState University-Chico, received
an
electronic
message
stating
they
would be
receiving
pay
increases in
accordance with thecontractual provisions.cited
above.
Based on
the above
stated facts, the charge as presently written
fails to state
a
prima facie violation of the
HEERA,
for thereasons provided below.
Charging Party contends the University implemented
a
unilateralchange when
it
implemented the terms of the June 4, 1999,memorandum
of understanding, and increased bargaining unit
Warning Letter
LA-CE-609-H
Page 4
members salary accordingly. The University contends they merely
implemented contractual provisions as called for in the
Agreement.
It is well established that an employer's pre-impasse unilateral
change of a past practice violates the duty to meet and confer in
good faith. (Grant Joint .Union High School District (1982) PERB
Decision No. 196.) As such changes are inherently destructive of
employee rights, they are considered a per se violation of the
duty to negotiate in good faith. (Regents of the University of
California (1983) PERB Decision No. 356-H.)
Herein, however, the facts are different. Unlike the normal
repudiation theory, Charging Party alleges herein that the
University made a unilateral change when it implemented
provisions of the collective bargaining agreement currently being
bargained for in reopener negotiations. PERB has, however,
addressed this matter, and its holding in Trustees of the
University of California (1996) PERB Decision No. 1174-H, serves
as clear precedent in such cases.
In Trustees, supra, the Board held that reopened provisions were
not effectively terminated by reopening, but rather status quo
prevailed where the parties had previously agreed that the
contract terms could not be deleted except by mutual consent. In
that case, the University and the Academic Professionals of
California had been engaged in reopener negotiations over several
issues, including the employer's contribution to health benefits
and contracting out. After completing mediation and factfinding,
the parties remained at impasse. The union then contended the
reopened articles were no longer operative, and as such, the
union was not bound by the contracting out language. The
University argued, however, that status quo prevailed, and as
such, the parties were bound both by the contracting out
provisions and the health contribution requirements in the
agreement, as no new agreement had been reached.
In dismissing the union's claim of unilateral change, the
Administrative Law Judge noted that the parties made a clear
statement, through their zipper clause, that the provisions of
their contract could not be changed without voluntary, mutual
consent. As such, the ALJ stated:
Since I conclude that the parties previously
had agreed that contract terms could not be
deleted except by mutual consent, I reject
the argument that the clauses were terminated
by the reopening. The clauses remained in
effect and the University. made no
change in a negotiable subject.
Warning
Letter
LA-CE-609-H
Page
5
Facts herein are
nearly identical
to
those
in
Trustees.
Charging
Party
and
the
University
are
parties
to
a
collective
bargaining
agreement
which
includes
a
zipper clause
identical in
terms
to
the
one found
in
Trustees,
supra.
Additionally, the
parties
had
completed impasse
procedures
and had
reached
a
stalemate
in
post-
factfinding negotiations.
As
in
Trustees, the University then
implemented
the
terms
and
conditions of the
June
4,
1999,
memorandum
of understanding
by
issuing
pay
increases
and
merit
salary
increases
pursuant
to
the
agreed-upon
contractual
provisions.
The
University's
reinstatement of
reopened
clauses
did not
constitute
a
unilateral
change,
but
merely
as
assertionthat
the
status
quo
between
the
parties
remained
in
effect.
(Trustees of
the
California State University
(1996)
PERB
Decision
No.
i174-H,
p.l.)
Charging
Party
contends
Trustees, supra,
is
not
applicable
in
this situation.
However,
Charging
Party
fails
to explain
why
it
should not
be bound
by
the zipper clause
and
the
terms
and
conditions of the
June
4, 1999,
agreement.
While
the
parties
are
free to
agree
to
a
higher
salary increase
in
reopeners,
the
parties failure
to
reach
an agreement does
not
repudiate the
terms
and
conditions already
agreed
upon.
As
such,
this
charge
fails
to
state
a
prima
facie
violation
of the
HEERA.
For
these reasons the
charge, as
presently written,
does
not
state
a
prima
facie case.
If
there are
any
factual inaccuracies
in
this
letter
or additional facts
which would
correct
the
deficiencies
explained
above,
please
amend
the charge.
The
amended
charge should
be
prepared
on
a
standard
PERB
unfairpractice
charge
form,
clearly
labeled
First
Amended
Charge,
contain
all
the
facts
and
allegations
you
wish
to
make,
andbe
signed under
penalty
of perjury
by
the charging
party.
Theamended
charge
must have
the case
number
written
on
the top
right
hand
corner of the
charge
form.
The
amended
charge
must
be
served
on
the respondent's representative
and
the
original proofof service
must be
filed
with
PERB.
If
I
do
not receive
an
amended
charge
or
withdrawal
from you
before
May
28, 2001,
I
shall
dismiss your charge.
If
you have any
questions, please
call
me
at
(510)
622-1016.
Sincerely,
kkZ-
Kristin
L.
Rosi
Regional AttorneyContinue sua pesquisa no ChatGPT ou Claude
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