Trustees of the California State University (San Marcos) (PERB 2738H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1260-H
PERB Decision No. 2738-H
July 28, 2020
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Katharine R.
McDonagh, Attorneys, for California State University Employees Union; Neha R. Shah
and J. Kevin Downes, Managers of Systemwide Labor Relations, for Trustees of the
California State University (San Marcos).
Before Banks, Shiners, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by California State University Employees Union
(CSUEU or Union) to the proposed decision of an administrative law judge (ALJ). The
amended complaint alleged, in pertinent part, that the Trustees of the California State
University (San Marcos) (CSU San Marcos) violated the Higher Education Employer-
Employee Relations Act (HEERA)1 by unilaterally changing procedures for reviewing
and responding to employee-requested salary increases under a negotiated In-Range
________________________
1 HEERA is codified at Government Code section 3560 et seq. Unless
otherwise indicated, all statutory references are to the Government Code.

2
Progression (IRP) policy.2 Specifically, the amended complaint alleged that CSU San
Marcos unilaterally changed the IRP policy by: (1) violating a contractual requirement
to provide a “written reason” for denying an IRP request, and (2) departing from
existing practices in the way it reviewed Rauch’s request. Following an evidentiary
hearing, the ALJ dismissed both allegations, finding the former allegation untimely and
the latter unproven.
Based on our review of the proposed decision, the entire record, and relevant
legal authority in light of the parties’ submissions, we conclude that the ALJ’s factual
findings are supported by the record and affirm his dismissal of the unilateral change
allegations for the reasons discussed below.
FACTUAL BACKGROUND3
The California State University (University) is a higher education employer
covered by HEERA. CSUEU is the exclusive representative of four statewide
University bargaining units, including Bargaining Unit 9 - Technical Support Services.
________________________
2 The amended complaint also alleged that CSU San Marcos violated HEERA
by denying employee Pete Rauch’s IRP request in retaliation for his exercise of
protected rights and refusing to provide requested information related to that denial.
The ALJ dismissed the retaliation allegation but found CSU San Marcos did not
properly respond to the Union’s request for information. Neither party excepted to
these findings. Accordingly, they are not before the Board on appeal but remain
binding on the parties. (PERB Regs. 32215, 32300, subd. (c); County of Orange
(2018) PERB Decision No. 2611-M, p. 2, fn. 2; City of Torrance (2009) PERB Decision
No. 2004-M, p. 12.) (PERB Regulations are codified at California Code of Regulations,
title 8, section 31001 et seq.) Also, as neither party excepted to the ALJ’s proposed
remedy for the information request violation, we incorporate that remedy into our
order.
3 Neither party excepted to the ALJ’s factual findings.

3
Rauch, a University employee in Bargaining Unit 9, is an Information Technology
Consultant in the Instructional and Information Technology Services Department (IITS)
at CSU San Marcos. During the relevant time period, he was CSUEU’s San Marcos
Chapter President.
I. 	The Collective Bargaining Agreement and Existing Practices Regarding the IRP
Policy
CSUEU and the University are parties to a single collective bargaining
agreement (CBA) covering the Union’s four statewide bargaining units. The relevant
CBA was in effect from November 14, 2014, through June 30, 2017.
CBA section 20.24 describes the IRP policy. Section 20.24(a) defines an IRP
as “[a salary] increase within a salary range for a single classification or within a
subrange of a classification with skill levels.” Whether an IRP is warranted is
determined by “the President, the President’s designee, or an appropriate
administrator.”4 (Ibid.) A decision regarding an IRP is “final and shall not be subject to
[the CBA’s grievance or complaint procedures].”
Section 20.24(b) provides a non-exhaustive list of criteria that may warrant an
IRP, including: “[1] Assigned application of new or enhanced skill(s), [2] Retention,
[3] Equity, [4] Performance, [5] Out-of-classification work that does not warrant a
reclassification, [6] Increased workload, [7] New lead work or new project coordination
functions given to an employee on an on-going basis by an appropriate administrator
________________________
4 CBA Article 2, section 2.2 defines an “appropriate administrator” as “the
immediate non-bargaining unit supervisor or manager to whom the employee is
normally accountable, or who has been designated by the President.”

4
where the classification standard/series do not specifically list lead work as a typical
duty or responsibility, and [8] Other salary related criteria.”
Individual employees or management may file an IRP request.5 All requests
must be submitted on an IRP Review Form signed by the appropriate administrator
and accompanied by a written memorandum identifying the specific increase sought
and supporting criteria or rationale. Human Resources (HR) must complete its review
within 90 days from the date it receives the request.
The CBA does not list the possible reasons for denying an IRP request.
However, should it deny an employee’s IRP request, the University “shall provide the
employee with a written reason for the denial.” Generally, an employee must then wait
at least 12 months from the date they receive the response before they may file
another IRP request. However, when the University denies the employee’s IRP
request “solely due to a lack of funds, upon the employee’s request, the employee’s
in-range progression application shall be re-evaluated in the following fiscal year”.6
At CSU San Marcos, the evaluation of an employee-initiated IRP request
begins with a department-level review. The request and the department’s assessment
are forwarded to HR, which then reviews the request. If the request is approved, HR
works with department administration to determine the appropriate salary increase to
be awarded. If the request is denied, HR will draft a notification letter for the
department’s use to inform the employee their request has been denied.
________________________
5 Management-initiated IRP requests may cover more than one employee.
6 The University’s fiscal year runs from July 1 to June 30 of the following year.

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II. 	Rauch’s IRP Request
On April 17, 2015, Rauch submitted an IRP request to his supervisor, Teresa
Macklin, Associate Dean in the IITS Department and CSU San Marcos’ Chief
Information Security Officer. Rauch’s request was based on the “equity” criterion in
CBA section 20.24(b).
Macklin and the Interim Dean of IITS, Bill Ward, reviewed Rauch’s request. On
April 21, 2015, Ward forwarded Rauch’s request to HR with the statement, “I do not
support this IRP request at this time since it was not part of IITS managers[’] plan for
2014/15 salary adjustments.”
On June 24, 2015, Macklin sent Rauch a memorandum denying his IRP
request. The memorandum, authored by then-HR Director Ellen Cardoso, said
Rauch’s request was denied “based on the strategic business planning purposes of
the department.” It further explained: “In accordance with [CBA] Article 20.24(d), Mr.
Rauch must wait at least twelve (12) months from the date of this letter before
becoming eligible to submit an employee-initiated [IRP request].” Shortly thereafter,
Rauch shared a copy of the memorandum with CSUEU Senior Labor Relations
Representative Brian Young.
III. 	Subsequent Correspondence between CSUEU and CSU San Marcos
On July 6, 2015, Young sent Cardoso a letter asserting that, under the CBA,
IRP requests may be denied only for lack of merit or lack of funds. He continued, “If
denied for funds, Mr. Rauch would be automatically eligible for reevaluation in the next
fiscal year (which would be this month). If denied for merit, he would have to wait for
[12] months.” Young stated that Rauch’s request seemed to be denied for a different

6
reason—the department’s strategic business planning purposes—which appeared to
him to be a unilateral change to the CBA. As a result, Young requested “clarification of
the term ‘strategic planning purposes’” and “any documentation associated with the
strategic planning process and the IRP process.” (Original italics.) Young testified that
he requested such documentation “[b]ecause [‘strategic planning purposes’] had
nothing to do with any of the criteria listed in IRP,” and “[b]ecause it appeared by the
term, strategic planning purposes, that that was something more significant than we
don’t want to give it and implied some more comprehensive planning process on the
part of management.” To Young, “it appeared that Human Resources actually did no[t]
review [Rauch’s request] at all,” but instead accepted IITS’s assessment on its face.
This was contrary to Young’s belief that HR was required to independently review the
merits of an employee-initiated IRP request.
Cardoso responded on July 14, 2015, in part to inform Young that she was
referring his information request to Senior Manager of Labor and Employee Relations
Lisa McLean for response. McLean and Young communicated about the issue several
times over the next three months.
For instance, on September 24, 2015, McLean wrote to Young about the
“strategic planning purposes” of IITS as they relate to the Department’s evaluation of
employee-initiated IRP requests. Describing that process, McLean explained that the
Department reviewed the requests in comparison with its current strategic priorities.
To “determine the current department strategic priorities for discretionary IRPs,” IITS
considered both employee salaries and other “salary[-]related criteria including, but
not limited to: employee growth in skills, changes in scope of responsibility, notable

7
organizational contributions, local job market demand, campus training investment,
difficulty of replacing specific skill sets, retention of ‘key’ personnel, and review of
salaries of lowest-paid employees.”
On October 9, 2015, McLean again wrote to Young, stating IITS had denied
Rauch’s IRP request because it “had other priorities for discretionary IRPs at the time
of his request.” She further explained that IITS, like other campus departments, has
only limited funds to grant discretionary compensation increases in a given fiscal year.
Accordingly, IITS management evaluates “[employee] salaries . . . in conjunction with
salary-related criteria for providing an IRP. IITS refers to this as their strategic
planning process.”
On January 28, 2016, CSUEU filed the instant unfair practice charge. The first
amended complaint alleged that CSU San Marcos made an unlawful unilateral change
by denying Rauch’s IRP request based on “strategic business planning purposes”
rather than lack of merit or lack of funds. On the third day of hearing, the ALJ granted
CSUEU’s motion to amend the complaint to allege that CSU San Marcos made an
unlawful unilateral change by deviating from established procedure in evaluating
Rauch’s IRP request.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
Under this standard, we review the entire record and are free to make different factual
findings and reach different legal conclusions than those in the proposed decision.
(City of Milpitas (2015) PERB Decision No. 2443-M, p. 12.)

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HEERA section 3563.2, subdivision (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.” (CSU Employees Union, SEIU
Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H, pp. 4-5.) The statute of
limitations begins to run when the charging party knows or should have known of the
conduct underlying the charge. (Ibid., citing Gavilan Joint Community College District
(1996) PERB Decision No. 1177, p. 4.) CSUEU filed the unfair practice charge in this
case on January 28, 2016. Thus, any allegation concerning conduct by CSU San
Marcos that the Union knew or should have known about before July 28, 2015 is
untimely.
In unilateral change cases, the statute of limitations period begins to run on the
date the charging party obtains actual or constructive notice of the respondent’s clear
intent to implement a unilateral change in policy, provided that nothing subsequently
evinces a wavering of that intent. (Regents of the University of California (Davis)
(2010) PERB Decision No. 2101-H, p. 16.) The irreducible core of this case is CSU
San Marcos’ June 24, 2015 memorandum, which cited “strategic business planning
purposes” as the reason it denied Rauch’s IRP request. On July 6, 2015, Young
asserted in a letter to then-HR Director Cardoso that the CBA allows IRP requests to
be denied only for lack of merit based on the criteria in the CBA or for lack of funds,
and CSU San Marcos’ response therefore did not comply with the CBA. Young further
explained CSUEU’s concern that CSU San Marcos’ cited basis muddied the
resubmission timelines and asserted its “unique response appear[ed] to be a unilateral
change to the [CBA].” CSUEU’s own statements show the Union knew of the conduct

9
underlying its contractual breach theory of a unilateral change on July 6, 2015, and at
that time considered the conduct an unlawful unilateral change.
The record also establishes CSUEU knew on July 6, 2015, of the conduct
underlying its second unilateral change theory, viz., that CSU San Marcos deviated
from existing procedures when, instead of considering the merits of Rauch’s IRP
request, HR acquiesced in the Department’s categorical denial of the request because
a salary increase for him was not part of the Department’s strategic business plan at
the time.7 Young testified that he requested documentation about the strategic
planning process and IRP process on July 6, 2015 “[b]ecause [‘strategic planning
purposes’] had nothing to do with any of the criteria listed in IRP,” and “[b]ecause it
appeared by the term, strategic planning purposes, that that was something more
significant than we don’t want to give it and implied some more comprehensive
planning process on the part of management.” Thus, “it appeared [to Young] that
Human Resources actually did no[t] review [Rauch’s request] at all,” instead accepting
IITS’s assessment on its face. This contradicted Young’s belief that HR was to
independently review the merits of an employee-initiated IRP request. Young’s
testimony shows that as of July 6, 2015, CSUEU knew of the conduct underlying its
belief that CSU San Marcos had not followed existing procedures in reviewing Rauch’s
IRP request.
________________________
7 CSU San Marcos did not except to the ALJ’s determination that the unilateral
change allegation based on this theory was timely. “Although PERB Regulation 32300,
subdivision (c), provides that ‘[a]n exception not specifically urged shall be waived,’
the parties’ failure to raise an issue does not preclude the Board from addressing it on
appeal” to correct an error. (Regents of the University of California (2018) PERB
Decision No. 2601-H, p. 12.)

10
The record does not evince any subsequent wavering of intent by CSU San
Marcos. Rather, it demonstrates that from July 13, 2015 through October 9, 2015,
McLean consistently explained to Young that the Department’s “strategic planning
process” included consideration of both employee salaries and other salary-related
criteria, including funding availability. Specifically, McLean wrote to Young on
September 24, 2015, that the other salary-related criteria used to “determine the
current department strategic priorities for discretionary IRPs,” included but was not
limited to “employee growth in skills, changes in scope of responsibility, notable
organizational contributions, local job market demand, campus training investment,
difficulty of replacing specific skill sets, retention of ‘key’ personnel, and review of
salaries of lowest-paid employees.”
On October 9, 2015, McLean again wrote to Young, stating IITS had denied
Rauch’s IRP request because it “had other priorities for discretionary IRPs at the time
of his request.” She further explained that IITS, like other campus departments, has
only limited funds to grant discretionary compensation increases in a given fiscal year.
Accordingly, IITS management evaluates “[employee] salaries . . . in conjunction with
salary-related criteria for providing an IRP. IITS refers to this as their strategic
planning process.”
CSUEU argues the statute of limitations did not begin to run until October 9,
2015, when it learned from McLean’s e-mail that CSU San Marcos had actually denied
Rauch’s IRP request for lack of funds but instead gave “strategic business planning
purposes” as the reason for denial to circumvent the potentially shorter resubmission

11
period for IRP requests denied solely for lack of funds.8 We reject this argument for
two reasons.
First, McLean’s October 9, 2015 e-mail merely reiterated the position stated in
CSU San Marcos’ previous communications to Young and cannot fairly be
characterized as explaining that Rauch’s IRP request was denied solely for lack of
funds. The October 9 e-mail therefore could not initiate a new statute of limitations
period. (See County of Riverside (2011) PERB Decision No. 2176-M, p. 6 [statute of
limitations does not restart “when the respondent’s action during the limitations period
merely confirms or reiterates the position it took and communicated to the charging
party outside of the limitations period”]; compare Omnitrans (2009) PERB Decision
No. 2001-M, p. 7 [employer wavered in intent to implement new drivers’ rulebook
when it indicated it was amenable to making changes to the rulebook based on
feedback it received from the union].)9
________________________
8 In its exceptions, CSUEU argues that CSU San Marcos unilaterally eliminated
the reevaluation period in CBA section 20.24(c) when it failed to deny Rauch’s IRP
request on the express basis of lack of funds. But the Union did not raise this
unilateral change theory before the ALJ. Accordingly, we decline to consider it. (Los
Angeles County Superior Court (2018) PERB Decision No. 2566-C, pp. 12-13.)
9 We further note that there is no basis to toll the statute of limitations under
PERB’s equitable tolling doctrine because the parties expressly exempted the
University’s decisions regarding IRP requests from their contractual grievance
procedure. (See Long Beach Community College District (2009) PERB Decision
No. 2002, p. 15, overruled on other grounds by Los Angeles Unified School District
(2014) PERB Decision No. 2359 [PERB will equitably toll the six-month limitations
period during a contractual grievance adjustment process].) Therefore, CSUEU’s
efforts to dispute CSU San Marcos’ denial of Rauch’s IRP request could not have
tolled the statute of limitations.

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Second, McLean’s October 9, 2015 e-mail at most alerted the Union to another
potential legal ramification of CSU San Marcos’ alleged unilateral change. But “a
charging party’s belated discovery of the legal significance of the underlying conduct
does not excuse an otherwise untimely filing.” (Orange County Fire Authority (2008)
PERB Decision No. 1968-M, p. 4; Empire Union School District (2004) PERB Decision
No. 1650, pp. 2-3.) In order to toll the statute of limitations based on lack of notice or
discovery, CSUEU had to show that it did not have “clear and unequivocal notice” of
the alleged misconduct. (See, e.g., Riverside Unified School District (1985) PERB
Decision No. 522, adopting warning letter p. 5 [limitations period not tolled because
parties had “clear and unequivocal notice” of the facts underlying the alleged unfair
practice]; A & L Underground (1991) 302 NLRB 467, 469 [NLRA’s analogous
limitations period begins to run when charging party has “clear and unequivocal
notice” of the conduct alleged to be an unfair labor practice].) But here it is
uncontested that CSUEU knew of CSU San Marcos’ reasons for denying Rauch’s IRP
request on July 6, 2015. Moreover, while CSU San Marcos was not forthcoming with
relevant information, there is no evidence that it fraudulently concealed any material or
operative fact surrounding its decision to deny the IRP.
We conclude based on the entire record that the statute of limitations for
CSUEU’s unilateral change allegations began to run no later than July 6, 2015. The
Union filed this charge more than six months later, on January 28, 2016.
Consequently, the unilateral change allegations are untimely and must be dismissed.10
________________________
10 Having found the unilateral change allegations untimely, we express no
opinion regarding the ALJ’s conclusion that CSU San Marcos did not change how it
reviews or evaluates employee-initiated IRPs.

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ORDER
Upon the findings of fact and conclusions of law, and the entire record in the
case, it is found that the Trustees of the California State University (San Marcos) (CSU
San Marcos) violated the Higher Education Employer-Employee Relations Act
(HEERA), Government Code section 3560 et seq., by unreasonably delaying its
response to California State University Employees Union’s (CSUEU) request for
information that was necessary and relevant to its duty to represent its bargaining units.
CSU San Marcos further violated HEERA by failing to produce a spreadsheet
maintained by the Instructional and Information Technology Services (IITS) Department
to assess different In-Range Progression (IRP) salary scenarios. All other allegations in
the amended complaint are dismissed.
Pursuant to Government Code section 3563.3, it hereby is ORDERED that CSU
San Marcos, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. Unreasonably delaying the production of necessary and relevant information
requested by CSUEU.
2. Refusing to fully respond to CSUEU’s request for necessary and relevant
information, namely by failing to produce IITS’s spreadsheet of different IRP scenarios.
3. Interfering with employees’ right to be represented by CSUEU.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Upon request, provide CSUEU with a current version of the IITS spreadsheet
of different IRP scenarios.

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2. Within 10 workdays of the date this decision is no longer subject to appeal,
post at all work locations where notices to employees in CSUEU’s bargaining units
customarily are posted, copies of the Notice attached hereto as an Appendix. The
Notice must be signed by an authorized agent of the University, indicating that it will
comply with the terms of this Order. Such posting shall be maintained for a period of 30
consecutive workdays. The Notice shall also be sent to all bargaining unit employees by
electronic message, intranet, internet site, or other electronic means customarily used
by the University to communicate with employees in CSUEU’s bargaining units.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size,
altered, defaced or covered with any other material.11
3. Written notification of the actions taken to comply with this Order shall be
made to the General Counsel of the Public Employment Relations Board, or the
General Counsel’s designee. Respondent shall provide reports, in writing, as directed
________________________
11 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within ten workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.

15
by the General Counsel or his/her designee. All reports regarding compliance with this
Order shall be concurrently served on CSUEU.
Members Banks and Paulson joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-1260-H, California State
University Employees Union v. Trustees of the California State University (San
Marcos), in which all parties had the right to participate, it has been found that the
Trustees of the California State University (San Marcos) violated the Higher Education
Employer-Employee Relations Act (HEERA), Government Code section 3560 et seq.,
by unreasonably delaying its response to California State University Employees
Union’s (CSUEU) request for information that was necessary and relevant to its duty
to represent its bargaining units, and by failing to produce a spreadsheet maintained
by the Instructional and Information Technology Services (IITS) Department to assess
different In-Range Progression (IRP) salary scenarios. As a result of this conduct, we
have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unreasonably delaying the production of necessary and relevant
information requested by CSUEU.
2. 	Refusing to fully respond to CSUEU’s request for necessary and
relevant information, namely by failing to produce IITS’s spreadsheet of different IRP
scenarios.
3. 	Interfering with employees’ right to be represented by CSUEU.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1. 	Upon request, provide CSUEU with a current version of the IITS
spreadsheet of different IRP scenarios.
Dated: _____________________ 	TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS)
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.