Trustees of the California State University (San Marcos) (PERB 1584H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-692-H
PERB Decision No. 	1584-H
January 	13, 	2004
Appearances: Brian Young, Labor Relations Representative, for California State Employees
Association; Marc D. Mootchnik, University Counsel, for Trustees of the California State
University (San Marcos).
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Trustees of the California State University (San Marcos)
(CSU) to a proposed decision of the administrative law judge (ALJ). The California State
Employees Association (CSEA), which represents non-faculty employees of the CSU, brought
this unfair practice charge alleging that CSU unilaterally changed a policy affecting the terms
and conditions of employment without providing notice and an opportunity to bargain.
Specifically, CSEA alleged that CSU unilaterally implemented a student fee increase which
affected CSU employees enrolled in university courses. The ALJ agreed with CSEA and held
that CSU violated the Higher Education Employer-Employee Relations Act (HEERA)1 by its
actions.
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

After reviewing the record in this case, including the proposed decision and CSU' s
exceptions, the Board reverses the proposed decision of the ALJ. 	CSU filed a request to
consolidate and CSEA filed a response to the request after submission of this case to the
Board. The Board declines consolidation.
FINDINGS OF FACT
Contract Fee Waiver Provision
Prior to the hearing, the parties submitted a joint stipulation of facts and documents. As
a result, no evidentiary hearing was held. Instead, the parties submitted the matter to the ALJ
after each filed a closing brief. The stipulated facts and documents are summarized below.
CSU is a higher education employer within the meaning ofHEERA section 3562(g).
CSEA is an exclusive representative, within the meaning ofHEERA section 3562(i), of a
statewide unit of CSU's non-faculty employees. CSU and CSEA are parties to a collective
bargaining agreement (CBA) effective from Juiy 1, 2002 through June 30, 2005. Article 22,
section 22.25 et seq., entitled "Fee Waiver," provides a program whereby certain fees are
waived or reduced for unit employees enrolled in CSU courses. Section 22.33, carried over
from section 22.32 of the predecessor agreement, reads:
The term 'fee waiver' as used in this Article means a program
that waives or reduces fees as listed below:
The following fees shall be fully waived:
Application Fee
Health Services Fee
Identification Card Fee
Instructionally Related Activity Fee
The following fees shall be reduced to one dollar ($1):
Student Body Association Fee
Student Union Fee
Health Facilities Fee
The State University Fee shall be waived for the units of courses
taken in the CSU fee waiver program.
2

Employees taking courses in addition to the CSU fee waiver
courses shall pay any difference between the amount waived and
the full State University Fee.
Looking only at the CBA, it is unclear whether the seven fees listed in section 22.33
constitute all applicable fees for students. However, other evidence admitted into the record
establishes that other fees, in additional to those in section 22.33, did exist. Specifically,
in
1986 the CSU chancellor issued Executive Order 491, which provides procedures for
implementing the fee waiver program. Executive Order 491 provides that all fees not
expressly waived in a CBA "shall be at the regular rate." 2
Contract Zipper Clause
In addition to the above-referenced provisions on the fee waiver program, Article 4
of
the CBA, entitled "Effect
of
Agreement," contains two relevant sections, including a "zipper
clause." Those relevant sections provide:
4.1 	This Agreement constitutes the entire Agreement
of
the
Trustees and the Union, arrived at as the result
of
meeting and
conferring. The terms and conditions may be altered, changed,
added to, deleted from, or modified only through the voluntary
and mutual consent
of
the parties in an expressed written
amendment to the Agreement. This Agreement supersedes all
previous Agreements, understandings, and prior practices related
to matters included within this Agreement. In the absence
of
any
specific provisions in this Agreement, all CSU practices and
procedures are at the discretion
of
the Employer.
The CSU shall provide notification to the Union
of
proposed
changes in written systemwide policies affecting wages, hours
and conditions
of
employment during the term
of
this Agreement.
Whenever possible, such notice shall be prior to the
implementation
of
changes in such policies. Upon written request
of
the Union, the CSU shall meet and confer regarding the impact
of
such changes.
4.2 The parties acknowledge that during the negotiations which
resulted in this Agreement, each had the unlimited right and
2Executive Order 491 was superseded by Executive Order 712 in 1999. Executive
Order 712 continues the policy that all fees not expressly waived in a CBA "shall be at the
regular rate."
3

opportunity to make demands with respect to any subject or
matter not removed by law from the area
of
collective bargaining,
and that the understandings and agreements arrived at by the
parties after the exercise
of
that right and opportunity are set forth
in this Agreement. Except as provided for in this Agreement, the
CSU and the Union, for the life
of
this Agreement, voluntarily
and unqualifiedly waive the right, and each agrees that the other
shall not be obligated, to bargain collectively with respect to any
subject or matter referred to or covered by this Agreement, or
with respect to any subject or matter not specifically referred to
or covered in this Agreement, even though such subjects or
matters may not have been within the knowledge
of
or
contemplation
of
either or both
of
the parties at the time that they
negotiated or signed this Agreement.
First Imposition
of
"Academic Records Fee"
As noted above, the CBA provides for the waiver/reduction
of
seven specific fees.
Other fees are to be paid by CSEA members at the regular rate. Prior to 2000, one
of
those
other fees was a mandatory "diploma and graduation fee." Also prior to 2000, there was a
"transcript fee" charged to students when they requested a copy
of
their transcript. In 2000,
the CSU chancellor issued Executive Order No. 722 authorizing CSU (San Marcos) to charge a
mandatory "Transcript and Graduation Fee" in the amount
of
$6 per semester, in lieu
of
the
"diploma and graduation fee" and "transcript fee."
Based on Executive Order 722, CSU (San Marcos) unilaterally established a mandatory
"Academic Records Fee" for all students, including members
of
CSEA, effective the fall
semester
of
2000. CSEA immediately filed unfair practice charge Case No. LA-CE-599-H,
alleging that CSU's unilateral imposition
of
the Academic Records Fee was an unfair practice.
On April 27, 2001, PERB issued a complaint alleging that these changes were in violation
of
HEERA section 357l(a) and (c). Prior to formal hearing, the parties reached a settlement
agreement on June 26, 2001. The settlement agreement consisted of three provisions, which
are that:
1. CSU hereby withdraws the Academic Records Fee of $6.00,
as to CSEA employees only. CSU will reimburse all amounts
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paid by CSEA employees for Academic Records Fees. CSU
retains the right to re-establish fees for graduation, diplomas and
transcripts when such services are requested.
2.
	CSU withdraws its policy permitting appeals
of
classified
review decisions by immediate supervisors or appropriate
administrators.
3. CSEA does hereby withdraw, with prejudice, its charge in
LA-C-599-H.
Thus, pursuant to the settlement, CSU did not require CSEA members to pay the Academic
Records Fee. However, CSU continued to charge the Academic Records Fee to its students not
employed in CSEA's unit. CSU also continued to assert its position that imposition
of
the
Academic Records Fee was not a matter within the scope
of
representation.
Current Attempt at Imposition
of
"Academic Records Fee"
By letter
of
April 16, 2002, Joel Block (Block), CSU labor relations manager, notified
Brian Young (Young), CSEA labor relations representative, that CSU (San Marcos) was
planning to re-implement the Academic Records Fee for CSEA unit members enrolled in
university courses. The letter also stated that:
Although the CSU believes this matter is not a mandatory subject
of
bargaining, and without waiving the CSU's position, I am
providing you with this notice. Please promptly advise the
undersigned
if
CSEA wishes to meet and confer over any aspect
of
the fee, its implementation or its impact.
Young responded on April 23, 2002, stating that re-implementation
of
the Academic Records
Fee would violate the prior settlement agreement, that it would require re-negotiation
of
Article 22
of
the CBA, and that CSU should therefore send notice
of
intent to re-negotiate to
CSEA headquarters.3
3At that time, the parties were negotiating what resulted in the current CBA, executed
on June 21. There is no evidence that either party attempted to alter section 22.33 or to discuss
the new or addition fees at the bargaining table.
5

Block then wrote to CSEA/CSU Administrator Roderick Gaulman (Gaulman) at CSEA
headquarters on May 15, 2002, reciting the history of the Academic Records Fee issue, and
stating again that, although CSU was not obligated to bargain regarding its implementation at
CSU (San Marcos), it was willing to meet and confer with CSEA. However, Block wrote that
if CSEA did not make a written request to meet by May 28, 2002, CSU would assume CSEA
waived interest in negotiating the issue and CSU would "immediately begin to charge" the
affected unit employees. On May 28, 2002, Young sent an e-mail to Block stating that he had
not received a reply to his April 23, 2002, letter. Block responded by e-mail of the same date,
stating that he had replied instead to Gaulman at CSEA headquarters, as Young had suggested.
However, Gaulman apparently left his position with CSEA at some time during this period and
was replaced by Helen Ray (Ray). CSEA neither informed CSU of Gaulman's replacement
nor responded to Block's May 28, 2002, letter. Instead, on June 21, 2002, Young filed the
original instant charge on behalf of CSEA.
At some time thereafter, Block became aware that Ray had replaced Gaulman. 	On
July 8, 2002, Block wrote to Ray informing her that CSU would begin implementing the
Academic Records Fee for CSEA-represented students at CSU (San Marcos) as of the fall
semester. The affected unit employees were notified of the Academic Records Fee
implementation by memo of August 7, 2002.
ALJ'S DECISION
The ALJ first rejected CSU's argument that this matter must be deferred to arbitration.
The ALJ noted that deferral is appropriate only if the conduct complained of is arguably
prohibited by the CBA. Here, the CBA lists specific fees that are to be waived but does not
prohibit the imposition of other fees. 	In other words, nothing in the CBA prohibits CSU from
imposing additional fees on its students including those who happen to be its employees.
6

Accordingly, the ALJ refused to defer the charge to arbitration because the CBA did not
prohibit the imposition of the Academic Records Fee.
The ALJ next considered whether the student fee was a subject within the scope of
representation. Citing to HEERA section 3562(r)(l)(B)4, CSU argued that HEERA expressly
places student fees outside the scope of representation. However, the ALJ noted that HEERA
section 3652(r)(l)(B) does not apply to any student fee that is a "term or condition of
employment." Citing to PERB and National Labor Relations Board (NLRB) decisions, the
ALJ held that the scope ofrepresentation under HEERA includes "emoluments of value" such
as employer provided housing, in-plant food prices, and employee discounts on employer
products. (Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375; Lehigh Portland
Cement Company (1952) 101 NLRB 529 [31 LRRM 1097] (employee housing); Ford Motor
Co. v. NLRB (1979) 441 U.S. 488 [101 LRRM 2222] (charges to employees for in-plant food);
Optica Lee Borinquen, Inc. (1992) 307 NLRB 705 [141 LRRM 1265] (employee discounts on
purchases of employer products).) Relying on these cases, the ALJ concluded that "student
fees are certainly 'emoluments of value,' and the [CBA] defines which fees are reduced or
waived, and by implication, those which require payment. Thus, student fees under the
program have become a term and condition of employment."
4HEERA section 3562(r)(l)(B) provides:
(r) (1) For purposes of the California State University only,
"scope of representation" means, and is limited to, wages, hours
of employment, and other terms and conditions of employment.
The scope of representation shall not include:
(B) The amount of any student fees that are not a term or
condition of employment.
7

Having concluded that
CSU's
implementation
of
the fee was within the scope
of
representation, the ALJ next examined whether CSU provided CSEA notice and an opportunity
to bargain. CSU argued that notice was provided to CSEA and that CSEA waived its rights
by
failing to respond to the notice. The ALJ spent considerable time examining the
correspondence between CSU and CSEA. In the end, the ALJ concluded that CSU did provide
CSEA the required notice and opportunity to bargain.
However, although the ALJ found that CSEA had failed to respond to
CSU's
notice, the
ALJ concluded that CSEA did not waive its rights. The
ALJ's
holding was based on the
"zipper clause"
of
the CBA. Under the zipper clause, each party has a right to refuse to
bargain over any subject matter within the scope ofrepresentation. Given the existence
of
the
zipper clause, the ALJ concluded that CSEA's silence cannot be interpreted as a "waiver,"
since it had the absolute right to refuse to bargain pursuant to the zipper clause. Accordingly,
the ALJ held that CSEA did not waive its rights but that its silence must be interpreted as a
refusal to bargain. Accordingly, the ALJ found that CSU violated HEERA section 3571(a) and
(c) by unilaterally implementing the Academic Records Fee without the consent
of
CSEA.
CSU'S EXCEPTIONS
CSU raises numerous exceptions which can be categorized into three distinct
arguments. First, CSU renews its argument that this matter must be deferred to arbitration.
Second, CSU also renews its argument that student fees are expressly removed from the scope
ofrepresentation by HEERA section 3562(r)(l)(B). Finally, CSU asserts that neither it nor
CSEA raised the issue
of
the "zipper clause" and that it was caught by surprise. CSU claims
that in any event the ALJ misinterpreted the zipper clause because she failed to consider it in
conjunction with section 4.1. According to CSU, section 4.1 allows CSU to implement
system-wide policies and requires CSEA to meet and confer once provided notice,
notwithstanding section 4.2.
8

DISCUSSION
Deferral to Arbitration
PERB Regulation 32620(b)(6)5 requires the Board agent processing the charge to:
Place the charge in abeyance
if
the dispute arises under MMBA
or HEERA and is subject to final and binding arbitration pursuant
to a collective bargaining agreement, and dismiss the charge at
the conclusion
of
the arbitration process unless the charging party
demonstrates that the settlement or arbitration award is repugnant
to the purposes ofMMBA or HEERA, as provided in
section 32661.
CSU argues that deferral is required here because the CBA covers the subject matter at
issue, namely, the waiver
of
student fees. 	While the CBA does cover student fee waivers, this
alone does not mandate deferral to arbitration. The Board has long held that deferral is
required only where the CBA prohibits the conduct at issue. It is not enough that the
CBA
cover or discuss the disputed conduct. (Santa Ana Unified School District (1994) PERB Order
No. Ad-263; Fremont Union High School District (1993) PERB Order No. Ad-248.) Here,
although the CBA contains provisions on student fee waivers, nothing in the CBA prohibits the
imposition
of
new student fees. 	The CBA merely requires the waiver/reduction
of
seven
specific fees. 	There is no allegation that CSU has refused to honor the waiver/reduction
of
those seven fees. 	Accordingly, the ALJ correctly declined to defer this matter to arbitration.
Scope
of
Representation
The central issue is this case is whether CSU's imposition
of
the Academic Records Fee
was within the scope
of
representation. On this issue, the ALJ held that:
[S]tudent fees are certainly 'emoluments
of
value,' and the
[CBA] defines which fees are reduced or waived, and by
implication, those which require payment. Thus, student fees
under the Program have become a term and condition of
employment.
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
9

As discussed below, the Board disagrees with this holding.
Under HEERA, the scope
of
representation is limited to "wages, hours or employment,
and other terms and conditions
of
employment." (HEERA sec. 3562(r)(l).) The Board has
long interpreted the term "wages" to include more than an employee's hourly, weekly or piece
work compensation. (Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375 (Healdsburg).)
Instead, the Board has followed the definition
of
"wages" employed under the National Labor
Relations Act (NLRA). (Healdsburg, at p. 29.) Under the NLRA, "wages" is defined to
include "emoluments
of
value" which accrue to employees out
of
their employment
relationship. (Inland Steel Co. (1948) 77 NLRM
1,
4, enfd. 170 F.2d 247
(ih
Cir. 1948), cert.
denied 336 U.S. 960 (1949).) Examples
of
such "emoluments
of
value" include gas discounts
given to employees
of
a gas company (NLRB
v.
Central Illinois Public Service Co. (1963) 324
F.2d 916 [54 LRRM 2586] (Central Illinois)); employee "layaway plans" (Master Slack (1977)
230 NLRB 1054 [96 LRRM 1309]); education and relocation assistance (Tocco, Inc. (1997)
323 NLRB 480 [155 LRRM 1138]); and employee discounts on eyewear (Optica Lee
Borinquen, Inc. (1992) 307 NLRB 705 [141 LRRM 1265]
enfd
991 F.2d 786
(1
st Cir. 1993)).
In Healdsburg, the Board held that employee achievement awards are an "emolument
of
value" and thus within the scope
of
representation. Based on this reasoning, the ALJ held that
student fees are similarly an "emolument
of
value" within the scope
of
representation. 	The
ALJ's holding, however, fails to distinguish between CSU's imposition
of
fees applicable to all
students versus CSU's waiver, subsidy, or reduction
of
those fees for its employees. As the
Board holds below, the former action is a management right while the latter action is within the
scope of representation.
To better understand the distinction it is helpful to use an analogy. For example,
imagine a widget-maker which gives its employees a $1 discount on widgets, which are priced
10

at $2. Under Healdsburg, the
$1
discount is an "emolument
of
value" within the scope
of
representation. However, nothing in Healdsburg or the NLRA line
of
cases suggest that the
employer must also negotiate the setting
of
the retail price
of
widgets. Thus, the employer's
decision to raise the price
of
widgets to $3 is not within the scope ofrepresentation. However,
since the discount is within the scope ofrepresentation,
if
the employer raised the price
of
widgets to $3 it would still be required to provide employees a
$1
discount. As long as the
employer continued to provide the
$1
discount, there is no change in the terms and conditions
of
employment 	even though the raising
of
the retail price means that employees must
now
pay $2 out
of
pocket for a widget instead
of
$1. If, on the other hand, the employer's
policy
is
to provide each employee a 50 percent discount on widgets, then the employer's decision to
raise the price
of
widgets to $3 would also require the employer to increase its "discount" to
$1.50 (50 percent
of
the retail price).
Applying the above example to the present case, a distinction must be drawn between
the imposition
of
fees applicable to all students and the waiver
of
fees for CSEA members.
Here, CSU's imposition
of
the Academic Records Fee on all students is akin to the widget-
maker raising the retail price
of
widgets. Such action is not within the scope
of
representation.
This conclusion is further supported by the language
of
HEERA which provides that the scope
of
representation under HEERA does not include, "The amount
of
any student fees that are not
a term or condition
of
employment." (HEERA sec. 3562(r)(l)(B).)
While CSU's imposition
of
the Academic Records Fee on all students is not within the
scope
of
representation, any waiver or reduction
of
the fee by CSU for its employees is within
the scope
of
representation. However, as discussed above, the waiver or reduction
of
student
fees is an issue covered by the CBA. Under the CBA, CSU is obligated to waive or reduce
seven specific fees for CSEA unit members. Significantly, the CBA does not require CSU to
waive or reduce all fees or a percentage of all fees, or otherwise prohibit the imposition
of
new
11

fees. 	If the CBA had contained such provisions, CSU' s imposition of a new Academic
Records Fee would have triggered an obligation to bargain, if it was not altogether prohibited
by the zipper clause. However, since the CBA contained no such restrictions, and there is no
allegation that CSU has not continued to waive or reduce the seven specified fees, the Board
finds that CSU's imposition of the Academic Records Fee for all its students was not a change
within the scope of representation for CSEA unit members.
Effect of Settlement Agreement
The Board's finding above would normally necessitate the dismissal of CSEA's charge.
However, there is one outstanding issue not addressed in the ALJ's decision. That issue
involves the effect, if any, of the parties' settlement of unfair practice charge number
LA-CE-599-H. That charge involved the same set of facts at issue here. In the settlement
agreement, CSU agreed not to impose the Academic Records Fee on CSEA unit members.
CSU, however, reserved the right to re-establish fees for "graduation, diplomas and
transcripts." From the settlement agreement itself, it is not entirely clear whether the fees
charged for "graduation, diplomas, and transcripts" are the same as the Academic Records Fee.
In any event, CSEA asserted in its charge that the settlement agreement created a policy and
practice that CSU would waive the Academic Records Fee for its unit members.
Unfortunately, the settlement agreement is ambiguous as to whether it was intended to
create a new policy or practice. Since CSEA carries the burden of proof in a unilateral change
case, it was incumbent on CSEA to provide extrinsic evidence to support its interpretation of
the settlement agreement. No such evidence was submitted. Thus, CSEA has not established
that there was any violation of the settlement agreement.
Accordingly, CSEA's charge must be dismissed.
12

13
ORDER
The unfair practice charge in Case No. LA-CE-692-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neima joined in this Decision.
13