Decision 1876Ha – Trustees of the California State University

SA-CE-191-H

Decision Date: April 15, 2009

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 73

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

Even when a decision is not within scope, an employer is obligated to provide the exclusive representative with notice and an opportunity to bargain the effects of the decision on matters within scope. However, the union must demand to bargain the effects of the decision and the demand must clearly identify the negotiable effects. Absent such an identification, the employer has no duty to bargain.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Notice of a proposed change in policy must be given sufficiently in advance of a firm decision to make such a change to allow the exclusive representative a reasonable amount of time to make a demand to negotiate. When an employer has made a firm decision to make a change in policy, the failure to request bargaining will not be considered a waiver of a right to bargain if the request would be futile.

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

In order to establish an unlawful unilateral change, the charging party must prove, by a preponderance of the evidence, that: (1) the employer breached or altered the parties’ written agreement or past practice; (2) such action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the change was not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a generalized effect or continuing impact upon the terms and conditions of employment of bargaining unit members); and (4) the change in policy concerns a matter within scope of representation.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

Notice of a proposed change in policy must be given sufficiently in advance of a firm decision to make such a change to allow the exclusive representative a reasonable amount of time to make a demand to negotiate.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

Even when a decision is not within scope, an employer is obligated to provide the exclusive representative with notice and an opportunity to bargain the effects of the decision on matters within scope. However, the union must demand to bargain the effects of the decision and the demand must clearly identify the negotiable effects. Absent such an identification, the employer has no duty to bargain. With regard to the nature of the identified effect, the Board has ruled that the union must show an actual effect or impact to a negotiable matter. Said another way, a unilateral change that does not actually change a condition of employment is not unlawful.

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

In order to establish a past practice, it must be demonstrated that the practice was unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Notice of a proposed change in policy must be given sufficiently in advance of a firm decision to make such a change to allow the exclusive representative a reasonable amount of time to make a demand to negotiate. When an employer has made a firm decision to make a change in policy, the failure to request bargaining will not be considered a waiver of a right to bargain if the request would be futile.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

In determining if non-enumerated matters fall within the scope of representation as a “term or condition of employment,” PERB applies a three-part test. A subject is within the scope of representation if: (a) it involves the employment relationship; (b) the subject is of such concern to management and employees that conflict is likely to occur, and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict; and (c) the employer’s obligation to negotiate would not significantly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employers mission. PERB has indicated a matter is outside the scope of bargaining if “imposing a bargaining obligation would significantly abridge the employer’s managerial prerogatives.”

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

The University’s decision to prohibit faculty and staff from parking in newly built parking structures was not within the scope of representation under HEERA.

1000.00000 – SCOPE OF REPRESENTATION
1000.02164 – Other

The University’s decision to prohibit faculty and staff from parking in newly built parking structures was not within the scope of representation under HEERA.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

In order to establish an unlawful unilateral change, the charging party must prove, by a preponderance of the evidence, that: (1) the employer breached or altered the parties’ written agreement or past practice; (2) such action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the change was not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a generalized effect or continuing impact upon the terms and conditions of employment of bargaining unit members); and (4) the change in policy concerns a matter within scope of representation.