Decision 1635H – Trustees of the California State University (San Marcos)
LA-CE-619-H
Decision Date: June 4, 2004
Decision Type: PERB Decision
Description: Union alleged that university violated HEERA by unilaterally changing employee performance rating procedures. Board found that matter was within scope and that union did not waive right to negotiate. Violation sustained.
Disposition: Board found that university violated HEERA.
Perc Vol: 28
Perc Index: 158
Decision Headnotes
602.01000 – In General
A change in the performance evaluation and overall rating procedure to include 2 new categories and a different weighting scale, which differed from any previous system used at the campus constitutes a change.
602.06000 – Change in Past Practice
A change in the performance evaluation and overall rating procedure to include 2 new categories and a different weighting scale, which differed from any previous system used at the campus constitutes a change.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
It is well settled that an employer may take unilateral action if the exclusive representative waived its right to bargain. But any waiver of this right will not be lightly inferred. To show that an exclusive representative has waived its right to negotiate, there must be evidence of either “clear and unmistakable” language, or of “demonstrable behavior waiving a reasonable opportunity to bargain over a decision not already firmly made by the employer.” Here, Board found insufficient evidence to establish waiver by union. Contract clauses only provided that evaluations be done and that a rating system be determined.
1000.02045 – Evaluations
Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.
1000.02086 – Merit Pay
Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.
1000.02087 – Merit System
Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.
1105.06000 – Hearsay
ALJ refused to admit a draft document at hearing. Board held that document should have been admitted into evidence. The fact that document was intended as a draft and constitutes hearsay affects the weight given the evidence, not its admissibility. However, even if admitted, the document does not affect the Board’s decision.