Decision 1635H – Trustees of the California State University (San Marcos)

LA-CE-619-H

Decision Date: June 4, 2004

Decision Type: PERB Decision

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Perc Vol: 28
Perc Index: 158

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1000.00000 – SCOPE OF REPRESENTATION
1000.02045 – Evaluations

Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.

1000.00000 – SCOPE OF REPRESENTATION
1000.02086 – Merit Pay

Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.

1000.00000 – SCOPE OF REPRESENTATION
1000.02087 – Merit System

Merit systems and procedures for conducting employee evaluations are matters within the scope of representation.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.