Decision 1876Ha – Trustees of the California State University
SA-CE-191-H
Decision Date: April 15, 2009
Decision Type: PERB Decision
Description: The Board, on remand by the Second District Court of Appeal, upheld the dismissal of an unfair practice charge in which the Charging Party alleged the employer breached its duty to bargain when it prohibited faculty from parking in the newly built parking structures.
Disposition: The Board held that parking location is not within the scope of representation. Therefore, the Board concluded the employer did not violate its duty to bargain in good faith when it prohibited faculty from parking in the newly built parking structures.
Perc Vol: 33
Perc Index: 73
Decision Headnotes
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.
601.04000 – 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.
602.01000 – 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.
602.02000 – 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.
602.05000 – 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.
602.06000 – 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.
608.07000 – 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.
1000.01000 – 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.”
1000.01000 – 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.
1000.02164 – 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.
1100.01000 – 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.