Trustees of the California State University (PERB 1654H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Charging Party, Case No. LA-CE-762-H
Vv. PERB Decision No. 1654-H
TRUSTEES OF THE CALIFORNIA STATE June 30, 2004
UNIVERSITY,
Respondent.

Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for Academic
Professionals of California; Elisabeth Sheh Walter, University Counsel, for Trustees of the
California State University.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by the Academic Professionals of California (APC).of a Board agent’s
dismissal (attached) of their unfair practice charge. The charge alleges that the Trustees of the
California State University violated the Higher Education Employer-Employee Relations Act
(HEERA)' by its unilateral implementation of a new fee waiver policy. APC alleged that this
conduct was an unfair practice and constituted a violation of HEERA section 3571(c).

After review of the entire record in this matter including the original and amended
unfair practice charge, the responses, and the warning and dismissal letters, the Board finds the

unfair practice charge must be dismissed for failure to state a prima facie case. The Board

adopts the warning and dismissal letters of the Board agent as its own.

'HEERA is codified at Government Code section 3560, et seq.

ORDER
The unfair practice charge in Case No. LA-CE-762-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA 	NOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027
March 23, 2004
Lee O. Norris, Labor Consultant
8726D S. Sepulveda Blvd., #C172
Los Angeles, CA 90045
Elisabeth Sheh Walter, University Counsel
California State University
401 Golden Shore, 4th Floor
Long Beach, CA 90802-4210
Re: 	Academic Professionals of California v. Trustees of the California State University
Unfair Practice Charge No. LA-CE-762-H
DISMISSAL LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 8, 2003. The Academic Professionals of California allege
that the Trustees of the California State University violated the Higher Education Employer-
Employee Relations Act (HEERA) by unilaterally changing the Fee Waiver program at the San
Bernadino campus. The charge originally included three allegations, two of which were
withdrawn prior to the issuance of the February 27, 2004 warning letter. The warning letter
indicated that the third allegation, that the CSU changed the Fee Waiver program by applying
the program to courses mandated by the employer, did not demonstrate a prima facie violation.
APC alleges the CSU unilaterally changed the parties' Fee Waiver program policy by
indicating the program applied to courses mandated by the employer. The warning letter
indicated that the original charge did not demonstrate how the inclusion of mandatory courses
in the program changes the employees' benefits and noted that the employees still receive the
benefit of waived fees for two courses per term. Additionally the warning letter noted that the
charge did not include any reference to an actual imposition of this policy in a manner
inconsistent with the parties' past practice.
As stated in the warning letter, the Fee Waiver program provides, in pertinent part:
Job-Related Courses
These are courses that directly improve skills or enhance
knowledge for performing duties in an employee's current
position. An employee may also take courses to acquire new
skills needed to perform newly assigned duties and
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LA-CE-762-H
March 23, 2004
Page 2
responsibilities. Enrollment may be voluntary or at the direction
of the employee's supervisor or manager. [emphasis added.]
The first amended charge alleges the following information to support that the CSU violated
the HEERA: (a) Article 16.5 only grants the CSU the authority to "approve" employee
requests to take classes using the fee waiver benefit, but does not grant the CSU the authority
to mandate employees to take courses using the fee waiver benefit; (b) as the CSU has paid for
other types of mandated trainings, its failure to pay for mandated courses passed those costs to	types
employees; (c) the CSU has broadened the types of training listed in 16.12; (d) any poor
performance in a mandated course effects the employee's transcript and ability to continue to
participate in the fee waiver program; and (e) if an employee is mandated to use the fee waiver
program the benefit of the fee waiver cannot be used for a course the employee or one of his or
her dependents wants to take.
The parties' collective bargaining agreement includes a Professional Development article.
Article 16.5 of the parties' CBA provides an administrator may approve an employee request
for enrollment in up to two CSU courses per semester under the fee waiver program.
Article 16.12 provides:
An employee wishing to participate in training, including
workshops, seminars, short courses, professional meetings, or
other professional activities, may submit a written request to the
appropriate administrator. Such a request may include release
time with pay, flexible working hours, tuition and travel. The
appropriate administrator shall respond to such requests in
writing.
Article 16.13 provides:
When an employee is required by an appropriate administrator to
take work-related training, the employee shall be granted release
time for such training if it occurs during working hours. When an
employee eligible for overtime is required by an appropriate
administrator to take work-related training during non-working
hours, the employee shall be granted overtime pay or
compensating time off pursuant to Article 28, Hours of Work.
Article 16.21 provides:
Continuing Education Training is only that training necessary to
meet degree, and licensure or certificate requirements mandated
as an employee's condition of employment.

LA-CE-762-H
March 23, 2004
Page 3
Article 16.22 provides:
An employee eligible for Continuing Education training may
request to participate in such activities in accordance with
campus procedures and provision 16.12 above.
The above-stated information fails to state a prima facie unilateral change violation for the
reasons that follow.
In determining whether a party has violated HEERA section 3571(c), PERB utilizes either the
'per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
Although Article 16.5 indicates that the CSU may approve employees' requests to take courses
using the fee waiver program, that provision does not set forth the parties' entire policy on
professional development. Article 16.13 indicates the CSU may require employees to take	
A_rticle
work-related training. Although the CSU may pay for other types of mandated training, the
charge does not demonstrate that applying the Fee Waiver program to mandated courses
changes any policy on CSU courses. The charge does not present facts demonstrating the CSU
mandated an employee to take a course using the Fee Waiver program in a manner inconsistent
with the parties' practice. The charge does not demonstrate that CSU broadened Article
16.12's definition of trainings that the employees could request by including mandated courses
in the Fee Waiver program. It does not appear that Article 16.12's limits apply to mandated
courses as that provision addresses only employee-requested training. Even if it is applicable,
the provision lists short courses as one of the types of training. Regardless of whether the
CSU applies the Fee Waiver program to mandated courses, the CSU has the right to require
employees to take work-related courses and the employee's performance will be reflected on
his or her transcript. Finally, the benefit of two courses per semester is allocated to each
employee. The employee does not lose that benefit for himself or herself or his or her family	family
members by the application of the Fee Waiver program to mandated courses. Thus, the charge
fails to demonstrate a prima facie violation and must be dismissed.
Right to Appeal
Pursuant to PERB 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	within
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-762-H
March 23, 2004
Page 4
dismissal. (Regulation 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 before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
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. (Regulation 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 Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
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. (Regulation 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 before the 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. (Regulation 32132.)

LA-CE-762-H
March 23, 2004
Page 5
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
General Counsel
By
ByTamrn~
Tammy Sandsel
Regional Attorney
Attachment
cc: Elizabeth Sheh Walter

STATE OF CALIFORNIA 	NOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
P.E.R.B
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027
February 27, 2004
Lee O. Norris, Labor Consultant
8726D S. Sepulveda Blvd., #C172
Los Angeles, CA 90045
Re: 	Academic Professionals of California v. Trustees of the California State University
Unfair Practice Charge No. LA-CE-762-H
WARNING LETTER
Dear Mr. Norris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 8, 2003. The Academic Professionals of California alleges
that the Trustees of the California State University violated the Higher Education Employer-
Employee Relations Act (HEERA)' by unilaterally changing the Fee Waiver program at the
San Bernardino campus."
On January 27, 2003, APC Campus Steward Bob Sperry received an email from the University
indicating the University posted a Fee Waiver policy on its website. The program allows the
waiver of certain fees for unit employees enrolled in courses at the CSU. The program allows
the waiver of fees for two courses per term. The policy indicates, in pertinent part:
Job-Related Courses
These are courses that directly improve skills or enhance
knowledge for performing duties in an employee's current
position. An employee may also take courses to acquire new
skills needed to perform newly assigned duties and
responsibilities. Enrollment may be voluntary or at the direction
of the employee's supervisor or manager. [emphasis added.]
APC alleges that prior to January 27, 2003, the Fee Waiver program did not apply to courses
mandated by the employer. Since the Fee Waiver program is limited to two courses per term,
APC alleges this change limits the benefits available to employees.
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
The charge originally included three allegations. As the Charging Party withdrew two
of the charge's three allegations, this letter addresses only the remaining allegation.
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LA-CE-762-H
February 27, 2004
Page 2
The CSU issued two brochures, one in 1997 and one in 2001, which include the same	one
statement regarding mandatory courses.
On February 24, 2004, I spoke with APC Representative Lee Norris regarding the 1997 and
2001 brochures. Norris indicated that CSU did not provide APC with notice of those
k_nowledge	documents before issuing them and that APC did not have any knowledge of those documents
prior to the filing of this charge. Norris alleges the brochures were not distributed to the
employees or to APC and that the only way APC could have discovered these brochures would
have been to inspect the racks of brochures within the Human Resources Department. Norris
also contends that no APC-represented employee has been required to use the fee waiver
program for a mandatory course and that therefore APC had no reason to know of the change
prior to the January 2004 email.
The above-stated information fails to state a prima facie violation for the reasons that follow.
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The statute of limitations is an affirmative defense which
has been raised by the respondent in this case. (Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
On January 27, 2003, APC first learned that the Fee Waiver program included courses deemed
mandatory by the CSU. Although the Respondent provided brochures from 1997 and 2001 .	which also included the mandatory course provision, the APC provided facts explaining why it
did not have knowledge of the policy outlined in those brochures. At this level of the
investigation the Charging Party's facts are taken as true. (Mark West Union School District
(1993) PERB Decision No. 1011.) Therefore the charge is timely filed.
In determining whether a party has violated HEERA section 3571(c), PERB utilizes either the
se"	"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)

LA-CE-762-H
February 27, 2004
Page 3
The Fee Waiver policy describes those courses which qualify for the fee waiver program. The
description, quoted above, indicates that courses that employees take at the direction of their
supervisors qualify for the Fee Waiver program. The charge does not provide facts
demonstrating how the inclusion of mandatory courses in the program changes the employees'
benefits. The employees continue to receive the benefit of waived fees for two courses per
term. The charge does not include any reference to an actual imposition of this policy in a
manner inconsistent with the parties' past practice. Thus, the charge must be dismissed.
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 that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended 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 proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before March 8. 2004, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney
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