Trustees of the California State University * * * SUPERSEDED by Trustees of the California State University (2009) PERB Decision No. 1876a-H (PERB 1876H)

SUPERCEDED by Trustees of the California State University
(2009) PERB Decision No. 1876a-H
STA TE OF CALIFORNIA
· DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION, CSU DIVISION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. SA-CE-191-H
PERB Decision No. 1876-H
Dec ember 29, 2006
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Res 	ondent.
Case No. SA-CE-194-H
Appearances: 	California State Employees Association by Philip Cooney, Labor Relations
Representative, for California State Employees Association, CSU Division; Rothner, Segall &
Greenstone by Bemhard Rohrbacher and Emma Leheny, Attorneys, for California Faculty
Association; Donald A Newman, Attorney, for Trustees of the California State University.
Before Shek, McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Trustees of the California State University (CSU) of a
proposed decision by a PERE administrative law judge (ALJ). The charge alleged that CSU

violated the Higher Education Employer-Employee Relations Act (HEERA)1 when it
prohibited faculty and staff (collectively faculty) from parking in newly built parking
structures. 	The charge also alleged that CSU unlawfully consulted with an advisory group on a
matter within scope (i.e., parking location) and wrongfully denied a request for information
regarding parking. The California State Employees Association, CSU Division (CSEA) and
the California Faculty Association (CFA) alleged this conduct constituted a violation of
HEERA section 3571(a), (b), (c) and (f).
The ALJ ruled that CSU violated HEERA section 3571(c) when it unilaterally
prohibited the faculty from parking in the newly built parking structures. Next, the ALJ ruled
that CSU violated HEERA section 3571(b) and (c) when it refused to comply with an
information request by CF A regarding parking information. Last, the ALJ ruled that CSU
violated Section 3571(a) and (b) when it consulted with an advisory group comprised of
students, faculty and staff regarding parking fees.2
The central legal issue in this case is whether parking location, as opposed to parking
fees, is a matter within the scope of representation (i.e., a mandatory subject of bargaining).
The proposed decision concludes that parking location is within scope. We disagree.
Accordingly, the Board finds CSU did not have a duty to bargain a change of parking location
and, therefore, did not violate Section 3571 (c) (unilateral change) when it prohibited the
faculty from parking in the newly built parking structures. The Board further finds CF A's
information request should not be deferred to arbitration. Moreover, since CSU did not except
to the merits of the ALJ's ruling regarding the information request, we affirm the ALJ's
1HEERA is codified at Government Code section 3560, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2CSU did not except to this ruling by the ALJ.
2

conclusion, but not the analysis. Last, since CSU did not except to the ALJ's findings with
regard to the Section 3571(f) violation (unlawful consultation with an advisory group), the
Board affirms the ALJ's conclusion. However, since this would be an issue of first impression
for the Board, we do not affirm the ALJ' s analysis.
OVERVIEW
CSU Northridge (CSUN) and CSU Sacramento (CSUS) are constituent campuses of the
CSU. 	In recent years, both campuses have experienced significant growth, which has
correspondingly impacted their respective parking resources. To accommodate increased
enrollment, multi-level parking structures have been built at both campuses. 	Specifically,
CSUS opened Parking Structure II (PS II (CSUS)) in August 2002, and CSUN opened Parking
Structure B-5 (B-5 (CSUN)) in August 2003.
To finance these structures, both universities were required to increase user parking
fees. 	At that time, the existing collective bargaining agreements (CBA) for the bargaining unit
members represented by CF A and CSEA included a specified parking fee. 	CSU asked both
CF A and CSEA to reopen their respective CBAs and negotiate parking fee increases, but both
unions declined. Accordingly, although the parking fees paid by students increased, the fees
paid by CF A and CSEA bargaining unit members did not.
Prior to the construction of the parking structures, the faculty were generally permitted
to park in both faculty and student lots. However, when the structures became operational,
CF A and CSEA bargaining unit members were not granted access. They alleged that this
conduct constituted a unilateral change in a matter within the scope of representation.
Before PS II (CSUS) was opened, CSUS President, Donald Gerth (Gerth), created the
ad hoc task force on parking (task force). 	The charge of the task force was to address the
3

equitable treatment of students in light of the fact that they were paying higher parking fees
than the faculty. 	The task force made several recommendations to the CSUS administration.
CF A and CSEA alleged this constituted an unlawful consultation with an advisory group in
violation of HEERA section 3571(f).
Also during this time, CFA tendered an information request to CSUS. The request
sought information regarding parking fees, parking availability and parking allocation. 	CF A
alleged that CSUS 's failure to provide the information constituted a violation of
Section 3571(c).
PROCEDURAL HISTORY
This case has a relatively lengthy procedural history which includes the consolidation
of similar charges filed by CF A and CSEA. For clarity, a brief synopsis of the procedural
history is set forth below.
Case No. SA-CE-191-H
On June 4, 2002, CSEA, filed an unfair practice charge against CSU. The charge
alleged that CSUS violated Section 3571(f) when it issued a memorandum dated May 9, 2002,
asking "the Vice President for Administration to bring together a small group of
representative[ s] of the campus, including ... staff to address broader issues of equity in the
distribution of parking availability." On September 26, 2002, CSEA filed a first amended
charge. 	The amended charge alleged violations of Section 357l(b) and (c) when PS II (CSUS)
was designated as a student only parking structure.
On December 6, 2002, PERB's General Counsel, after an investigation of the charge,
issued a complaint alleging violations of Section 3571(a) and (c). On December 24, 2002,
4

CSU answered the complaint. The answer denied all material allegations and asserted various
affirmative defenses.
Case No. SA-CE-194-H
On October 7, 2002, CF A filed an unfair practice charge against CSU. The charge
alleged violations of Section 3571(b), (c) and (f). 	Generally, the allegations were based on
CSUS' consultation with the task force and its designation of PS II (CSUS) as a student only
parking structure.
On December 6, 2002, PERB's General Counsel, after an investigation of the charge,
issued a complaint alleging violations of Section 3571(a) and (c), the same subdivisions of
Section 3571 that were alleged in Case No. SA-CE-191-H. On December 24, 2002, CSU
answered the complaint. The answer denied all material allegations and asserted various
affirmative defenses.
On April 9, 2003, CFA filed its first amended unfair practice charge against CSU. 	This
amended charge alleged violations of Section 3571 (a), (b ), (c) and (f). The amended charge
also added allegations that CSUS failed to produce relevant documents and CSUN unilaterally
changed its past practice when it failed to meet and confer over the restriction of Bargaining
Unit 3 members from parking in B-5 (CSUN).
Miscellaneous Motions and Position Statements
On May 15, 2003, CSU filed a position statement regarding CF A's first amended
unfair practice charge. 	The position statement opposed amending the complaint issued on
December 6, 2002, to include CSUS's failure to provide information and CSUN's alleged
unilateral change. 	Specifically, CSU argued that CSUS' alleged failure to provide information
should be deferred to arbitration, and that the unilateral change allegations regarding CSUN
5

did not establish a prima facie case. In the alternative, CSU argued that the CSUN allegations,
even if they are sufficient to support a prima facie showing, should not be incorporated into the
complaint because of the factual differences between the CSUN situation and the CSUS
situation.
On May 16, 2003, CSEA requested the consolidation of Case No. SA-CE-191-H with
Case No. SA-CE-194-H.
On June 9, 2003, CFA responded to CSU's position statement, arguing that the
complaint issued by PERB should be amended. With regard to the information request, CF A
argued that the amendment was appropriate because it was entitled to the requested
information.3 Additionally, CFA argued that the complaint should be amended to include the
CSUN unilateral change due to the similarities of the facts between the CSUN situation and the
CSUS situation.
Issuance of the Amended Complaint
On September 23, 2003, the ALJ issued an amended complaint. Counsel for CSU
received a copy of the amended complaint on September 24, 2003, minutes before the
commencement of the first day of hearing. CSU objected to the timing of the amended
complaint, and was concerned that because it did not have an answer to the amended complaint
on file, it may be ruled that CSU waived its affirmative defenses. The ALJ overruled the
objection, but authorized CSU to file an answer to the amended complaint "later on." CFA and
CSEA did not object to this ruling. 	CSU filed its amended answer on November 26, 2003, two
months after the formal hearing was held.
3CSU argued that the dispute should be deferred to arbitration, not that CF A was not
entitled to the information. CF A, however, did not address the deferral argument.
6

Motions and Rulings on the First Day
of
Hearing
The first day
of
the formal hearing was held on September 24, 2003. At the outset,
CSEA moved to amend the complaint to include an allegation CSU unlawfully failed to
provide CSEA with certain information. The ALJ determined that although CSEA's request
was "substantially" the same as CF
A's
request, it was not an exact duplicate. After concluding
the amendment would impose too great a burden on CSU to expect it to mount a defense upon
such short notice, the ALJ denied the motion. Additionally, CSEA moved to amend the
complaint to include an allegation that CSU unilaterally modified its parking policy at CSUN.
After determining that CSU had sufficient notice
of
these proposed amendments to prepare a
defense, the ALJ granted the motion.
In addition to CSEA' s pre-hearing motions, CF A moved to amend the complaint to
include allegations that CSU had: 	(1) unilaterally modified its parking policy at CSUN, and
(2) refused to comply with a lawful request for information about such policies. After
determining that CSU had sufficient notice
of
these proposed amendments to prepare a
defense, the ALJ granted CF
A's
motion.
The ALJ also ruled to consolidate cases SA-CE-191-H and SA-CE-194-H. The hearing
concluded on September 26, 2003.
The case was submitted for a proposed decision on January 12, 2004.
FACTS
A. 	Relevant Contractual Language
CSEA represents employees in CSU Bargaining Units 2, 5, 7, and 9. CFA represents
employees in Bargaining Unit 3.
7

1.
	CSEA-CSU CBA
Section 21.15
of
the July
1,
2002 to June 30, 2005 CSEA-CSU CBA states, in part:
Employees wishing to park at any CSU facility shall pay the
parking fee in accordance with CSU campus policy. There shall
be no parking fee increases for CSEA-represented employees on
any campus during fiscal year 2002-2003. 	Thereafter, any
increases in parking fees are subject to a reopener.
2. 	CF A-CSU CBA
Section 32.17
of
the May 14, 2002 to June 30, 2004, CF A-CSU CBA states:
An employee is required to pay the parking fee as determined by
the CSU for parking at any facility
of
the CSU
....
The CSU
shall not change the parking fees payable in effect upon the
effective date
of
this Agreement.
This provision had an accompanying footnote, which states, in pertinent part:
'The parties agree that faculty will not be required to pay parking
fees in excess
of
those applicable as
of
June 30, 2001 during the
2001-2002, 2002-2003 contract years.'
The parties have historically negotiated faculty parking fees, but not specific locations.
Prior to the events described herein, parking fees for both students and the faculty at the two
campuses had not changed since 1992.
B. 	Parking is a Self-Sustaining Function
Both CSUS and CSUN have experienced a marked increase in the number
of
students,
and, therefore, a corresponding increase in the need for parking. In 1995, every CSU campus
became responsible for their own parking policies, subject to approval by the Board
of
Trustees. As a result, all parking related costs, including any new parking structures, must be
paid for by campus parking fees. 	Additionally, all new parking structures and/or
improvements are funded through CSU revenue bonds. However, in order to obtain approval
8

for such a bond, the respective campus must demonstrate both fiscal viability and the ability to
pay for its expenditures.
C. 	Parking Fee Increase - Background
During the 2000-01 school year, administrators at both CSUN and CSUS determined
that additional campus parking structures were needed. Both administrations determined that,
in order to pay for these new structures, it was necessary to raise parking rates for all campus
parkers.
As set forth above, both the CSEA CBA and the CF A CBA contained provisions
regarding parking fees paid by their members, and neither contract authorized an increase
of
those fees. 	Although CSU proposed reopening the respective CBAs to negotiate a fee increase,
it was unable to negotiate an increase with either union. Indeed, CF
A's
leadership stated that
its members would not approve a fee increase in a year that they did not receive a pay increase.
D. 	CSUN: Restrictions on Parking Location
On June 14, 2001, CSUN informed both its students and the faculty that parking fees
would be raised in two stages. On September
1,
2001, these fees would be increased from
$14.00 to $21.00 per month and from $63.00 to $94.50 per semester. On July 1, 2002, the fees
would be increased from $21.00 to $28.00 per month and from $94.50 to $126.00 per semester.
CSU negotiated with and obtained a fee increase for employees in various bargaining
units not represented by CF A and CSEA (i.e., Bargaining Units 4, 6 and 8). Thus, on
September 1, 2001, when CSUN raised parking fees for its students, it also raised the fees for
its non-represented employees. It did not, however, raise the parking fees for the faculty
represented by CF A and CSEA.
9

Later, on March 17, 2003, CFA and CSEA were informed that their bargaining unit
members would not be permitted to park in B-5 (CSUN) when it was completed. In September
2003, when B-5 (CSUN) was opened, the members were permitted to park in all of the areas
outside of the B-5 (CSUN) in which they had previously parked, but not inside the structure.
In addition to their former parking locations, the faculty had access to 308 resurfaced spaces in
the ground area surrounding the new structure. These 308 spaces constituted an increase of
127 spaces over those available prior to the construction of B-5 (CSUN). Students and faculty
not represented by CF A and CSEA, but paying the higher fee, were permitted to park in the
structure. Neither CSEA nor CF A offered any evidence that the parking limitations placed on
B-5 (CSUN) created a negative impact on the faculty represented by them.
E. 	CSUN: Parking Location Never Bargained
In 1994, the Northridge earthquake wrought serious damage to the campus. Numerous
buildings, including an existing parking structure, were rendered uninhabitable and required
demolition. In response, CSUN erected temporary buildings on lawns and parking lots. As a
result, parking locations changed frequently. 	The location of parking remained in flux as
reconstruction efforts continued. Neither CSEA nor CFA presented evidence to suggest that
these changes in parking locations were bargained. To the contrary, CSUN Vice President for
Administration and Finance and Chief Financial Officer, Mohammad Qayoumi, testified that,
to his knowledge, parking location was never negotiated with the unions.
F. 	CSUS: Restrictions on Parking Location
On May 9, 2002, CSUS President Gerth, issued a memorandum to the campus
community discussing parking fees. 	In this memo he stated, inter alia, the following:
10

I have significant concerns about the equity
of
this situation.
Students and a limited number
of
university employees will be
paying higher parking fees than the majority
of
university
employees. The Faculty Senate at its April 25 meeting adopted a
resolution recommending to me the creation
of 'a
funding
mechanism whereby faculty and staff who wish to pay an
additional sum to equal the student increase can do so.' 	I think
this is a reasonable thing to do.
I have asked the Vice President for Administration to bring
together a small group representative
of
the campus, including
students, faculty, and staff to address broader issues
of
equity in
the distribution
of
parking availability. The group is meeting
now.
That group is addressing matters such as how parking spaces are
to be allocated to various groups particularly with respect to the
level
of
fees.
In May 2002, CSUS announced a new parking fee schedule for students and non-
represented employees proposing fee increases in two stages. In September 2002, semester
fees would be increased from $63.00 to $85.50, and in July 2003 they would be increased to
$108.00, with corresponding fee increases for summer, weekly and daily parking.
On August 26, 2002, a few days prior to its opening, Gerth announced that PS II
(CSUS) would be designated for students only. There was not an increase in parking fees for
CSUS employees, whether they were represented or not. After PS II (CSUS) was opened, the
faculty had more parking spaces on campus. Moreover, the faculty had the same proportion
(
18
percent) to the overall number of spaces that it had prior to the opening.
G. 	CSUS: Parking Location Never Bargained
Historically, each CSUS parking lot was designated for the exclusive use
of
either
students or the faculty. 	In 1991, this policy was changed to permit the faculty to park in
11

student lots, as well as faculty lots. 	Students, on the other hand, were not permitted to park in
faculty lots. 	According to CSUS's Transportation and Parking Services Manager, Nancy Fox
(Fox), since 1991-92, this was done to "allow more flexibility."
Fox testified that parking lots at CSUS are typically allocated by way
of
an 80/20 split.
In other words, approximately 20 percent is allocated to the faculty and approximately
80 percent is allocated to students. In or about 2000, some temporary buildings were replaced
by a new parking lot. Rather than allocate the 20 percent
of
the spaces in this lot to the faculty,
and 80 percent to students, all
of
the spaces were allocated to the faculty and students. Neither
CSEA nor CF A presented any evidence that this change in parking allocation was bargained.
H. 	CSUS: Request for Information
On September 16, 2002, CFA Research Specialist, Andrew Lyons (Lyons), wrote
Gerth requesting specified information regarding parking at CSUS. On October 22, 2002,
Assistant Vice Chancellor, Human Resources, Sam Strafaci (Strafaci), responded to Lyons
letter, as follows:
As we have advised you, parking fees at Sacramento will not be
increased during the 2002-2003 fiscal year, nor will we request
you to reopen the Collective Bargaining Agreement to discuss
raising parking fees.
At this time, we have not decided whether or not to propose
parking increases for 2003-2004. 	Since there is no current
proposal to increase parking fees, we have not compiled the
information and believe there is no basis for a HEERA request
for this information. In light
of
the foregoing, please inform me
why you believe that this information is required under HEERA.
Should we propose parking fee increases for 2003-2004, we will
at that time respond to your request.
12

Lyons responded to Stafaci's letter on November 5, 2002, as follows:
I am in receipt
of
your letter dated October 22, 2002 in which
[sic] claim there is no basis for our HEERA information request
concerning parking at CSU Sacramento.
I write to inform you that CF A is considering requesting the
parties reopen the collective bargaining agreement in 2002/03 to
discuss parking fees. 	Without the parking information, we will
be unable to make the final determination as to whether or not to
request the parties reopen the agreement.
We are also considering raising parking as an issue during the
2003/04 re-opener negotiations. Again, in order to make the final
determination on whether or not to re-open on this issue, we will
require the data contained in my original request (September 16,
2002).
On December 4, 2002, Strafaci responded to Lyons' November 5 letter, stating
in
pertinent part:
The University has further evaluated this request under HEERA
and still does not understand how this parking information is
relevant to the CF
A's
duty as the exclusive representative for
Unit 3 Faculty when, at this point, no proposal has been made.
To hold otherwise, contrary to HEERA, would place the
unlimited responsibility to fulfill information requests on matters
not open to bargaining. As both parties know, there is no
obligation on either side to reopen parking for 2002/2003 and as
stated above the CSU does not intend to propose any increase.
If
in fact, the CF A formally requests to bargain over parking fees,
the CSU will fulfill its obligations under HEERA to provide
information that is necessary and relevant for the CF A to carry
out its bargaining obligation. However, the CSU must note in the
event CF A chooses to re-open parking, the parties will still have
to bargain over the cost and the extent
of
the information that the
CSU will provide.
CSU did not produce the documents.
13

EXCEPTIONS
CSU set forth 11 exceptions in its appeal of the proposed decision. 	Of these
exceptions, eight address the unilateral change allegations, two address the document
production allegations and one addresses both issues. No exceptions were filed regarding the
violation of Section 3571(£) (consultation with advisory groups).
DISCUSSION
Unilateral Change Allegation
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.)
To prove an unlawful unilateral change, the charging party must establish, 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; and (3) The change was not
merely an isolated breach of contract, but amounts to a change of policy (e.g., has a
generalized effect or continuing impact upon the terms and conditions of employment of
14

bargaining unit members); and (4) The change in policy concerns a matter within scope of
representation.
Matters Within the Scope of Representation
Under HEERA section 3562(q) and (r) matters within the scope of representation are
generally limited to wages, hours and other terms and conditions of employment.4 The Board
has not created a specific test to determine whether matters not specifically described in these
statutory provisions are within the scope of representation under HEERA. However, PERB
has determined that a matter is outside the scope of bargaining if "imposing a bargaining
obligation would significantly abridge the employer's managerial prerogatives." (Regents of
the University of California (1987) PERB Decision No. 640-H.)
There is no PERB decision on whether the location of employee parking is a negotiable
subject under HEERA. The closest case is State of California (Franchise Tax Board) (1982)
PERB Decision No. 229-S, a Ralph C. Dills Act (Dills Act)5 decision that does not reach the
scope of representation question. There, the ALJ determined that the location of employee
parking spaces was not a negotiable matter. The Board, however, held that, regardless of
whether the issue was negotiable, the employer had discharged any obligations it may have had
toward the employee organization by meeting with it.
Matters Within Scope Must be Related to Hours, Wages or Terms and Conditions of
Employment
PERB will find a subject negotiable if: 	(1) it is logically and reasonably related to
hours, wages or terms and conditions of employment; (2) the subject is of such concern to both
In addition to Section 3562, HEERA section 3562.2 expressly provides that any
retirement benefits available to a state member under Part 3 (commencing with Sec. 20000) of
Title 2 fall within scope for the purposes of CSU.
5The Dills Act is codified at Government Code section 3512, et seq.
15

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 (3) the
employer's obligation to negotiate would not specifically abridge the employer's freedom to
exercise those managerial prerogatives (including matters of fundamental policy) essential to
the achievement of the employer's mission. (Anaheim Union High School District (1981)
PERB Decision No. 177; test approved in San Mateo City School Dist. v. Public Employment
Relations Bd. (1983) 33 Cal.3d 850 [191 Cal.Rptr. 800].)
Thus, we begin and end our analysis of the scope issue with the question of whether the
policy regarding parking location is logically and reasonably related to wages, hours, or terms
and conditions of employment. As discussed below, we conclude it does not.6
Parking Location Does Not Impact Wages
The parties have historically negotiated faculty parking fees, but not specific locations.
When the instant charge was filed, the faculty parking fees were $63 per semester at both
CSUS and CSUN. 	The Board has held that parking fees are within the scope of representation
because they are logically and reasonably related to wages. 	(California State University (1990)
PERB Decision No. 799-H.) Moreover, because parking fees were an express term of both the
CSEA agreement and the CF A agreement, any changes to these fees would require negotiation
between the parties.
In this case, faculty parking fees, unlike student parking fees, did not change when
parking at PS II (CSUS) and B-5 (CSUN) became available. Thus, the decision to restrict the
faculty from parking at these locations had no impact on the wages of the employees.
16
Because we conclude that parking location is not within scope, we need not address
the remaining elements to prove an unlawful unilateral change.

Parking Location Does Not Impact Hours of Employment
A change in policy is within the scope of negotiations if it impacts hours of
employment. CF A and CSEA argue, in essence, that the change in policy affected hours
because the employees had to spend more time looking for parking spaces and had to walk
further distances to their classrooms once they secured a parking space.7 In Inglewood Unified
School District (1987) PERB Decision No. 624, however, the Board rejected the argument that
hours were increased by a requirement that teachers report to the office to pick up keys prior to
going to their classrooms. 	The Board noted that the key pickup system "did not require the
teachers to be on campus any earlier than provided for in the contract."
Similarly, the mere fact that they were prohibited from parking in the new parking
structures (and, in this case, retained access to the same parking spaces) did not require the
faculty to report to duty any earlier than before the change in policy. Simply put, employees
do not begin work when they park their cars. 	They begin work when they commence their
duties at their work site. Accordingly, we find that the location of employee parking spaces is
not logically and reasonably related to hours of employment.
Parking Location Does Not Impact Other Terms and Conditions of Employment
In determining whether a matter falls within scope under "other terms and conditions
of employment", the Board has adopted a three part test. A subject is within scope if it:
7 Although CF A and CSEA presented evidence that the availability of parking at both
campuses has decreased over time, they failed to present any evidence to show that the parking
restrictions at PS II (CSUS) and B-5 (CSUN) had a direct impact on the overall availability of
parking spaces for the faculty. 	To the contrary, neither CSUS nor CSUN reduced the amount
of parking available to the faculty. 	Indeed, according to the evidence, faculty parking actually
increased when PS II (CSUS) and B-5 (CSUN) became available. Moreover, since the faculty
continued to use the same locations they used prior to the construction of the lots, there was no
change to their parking situation. Thus, the record does not support the proposition that the
parking restriction required employees to spend more time looking for parking spaces.
17

(1) involves the employment relationship; (2) 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 (3) the employer's
obligation to negotiate would not significantly abridge its freedom to exercise those managerial
prerogatives essential to the achievement of its mission. (Trustees of the California State
University (2003) PERB Decision No. 1507-H.)
Parking at both locations is not a condition of employment. Employees are not required
to drive to work. However, in the event they choose to drive, the employees are not limited to
the permitted spaces. 	They may, like students and members of the public, park in "daily use"
spaces rather than permitted spaces or, alternatively, park off campus. Ultimately, the
evidence is insufficient to establish a relationship between CSU's parking policy and any
condition of employment. Accordingly, we believe parking location does not involve the
"employment relationship." As such, parking location does not fall within scope under "other
terms and conditions of employment."8
The ALJ argued that if parking was not within scope, faculty could be required to park
in "remote lots, well beyond the most distant student lots." Such a result, however, is not
reflected in the record. Indeed, as stated above, faculty were permitted to park in the same
areas as they did prior to the opening of the new parking structures. Moreover, the number of
spaces available to the faculty actually increased at both campuses when the respective
structures opened. Thus, under the circumstances in this case, the change did not impact the
employment relationship.
18
Parking location, under certain circumstances, may be deemed to impact the
employment relationship. For example, a change in parking location might be found to impact
the conditions of employment if parking was moved to a location that created significant health
and safety risks. Such risks, however, were not raised in this case.

For these reasons, we conclude that CSU did not unlawfully change the terms and
conditions of employment when it prohibited faculty from parking in PS II (CSUS) and B-5
(CSUN). Therefore, we dismiss this charge.
Allegation Regarding Failure to Provide Information
The ALJ ruled that CSU violated Section 3571(b) and (c) when it failed to produce
information in response to CF A's request. In so doing, the ALJ denied CSU' s request for
deferral. Although the ALJ noted that CSU raised deferral for the first time in its closing brief, the
ALJ based his denial on the merits of the request. On appeal, CSU argues that the ALJ erred in
denying its request. For the reasons set forth below, we affirm the denial of the deferral
request.
CSU's Deferral Request Was Timely Filed
CSU raised the question of deferral in its May 15, 2003, position statement. Over six
months later, on September 23, 2003, the ALJ issued an amended complaint, which, for the
first time, included the document production charge. The first day of hearing in this case was
on September 24, 2003, one day after the amended complaint was issued. As a result, CSU
received its copy of the amended complaint shortly before the hearing was scheduled to begin.
At the hearing, CSU expressed concerns that since it did not have an answer to the
amended complaint, it ran the risk of waiving its affirmative defenses. The ALJ, without
objection by CFA and CSEA, authorized CSU to file an amended answer. 	CSU's amended
answer did, in fact, contain a request for deferral.
Since CSU raised deferral six months before the hearing, filed an amended answer in a
time frame approved by the ALJ and properly asserted its affirmative defense in its amended
answer, we conclude CSU timely stated its deferral defense.
19

Deferral is Not Appropriate in This Instance
CSU argues that the information request charge in the complaint should be deferred to
arbitration. The Board, however, has declined to bifurcate disputes that arise from the same conduct
when doing so would defer one theory to arbitration while entertaining a companion theory in the
unfair practice arena. (State of California (Department of Corrections) (1995) PERB Decision
No. 1100-S (Corrections).) According to the Board, this approach:
... ensures that only one neutral, administrative forum will be
responsible for resolution of any specific dispute. By this rule,
PERB defers to the alternative dispute resolution forum the parties
have chosen. Finally, this rule will eliminate overlapping and
duplicative proceedings, [fu. omitted] lead to more timely resolution
of disputes and contribute to employer-employee relations stability.
(Corrections, at pp. 14-15.)
However, the dispute(s) regarding the parking restrictions and the dispute(s) regarding the
information request arguably arise from different conduct. In such cases, bifurcation may be
appropriate under certain circumstances. (See State of California (Department of Parks &
Recreation) (2003) PERB Decision No. 1566-S.)
In the instant case, the merits of the information request were fully litigated at the hearing.
Thus, if this case was deferred to arbitration, CF A and CSEA, CSU, and PERB would have wasted
a significant amount of time and resources litigating the underlying charge. In so doing, the parties
would be compelled to participate in duplicative proceedings and the resolution of this case would
be needlessly delayed. Because this result runs counter to the objectives set forth in the Corrections
case, the Board concludes that bifurcation is not appropriate in this instance.
Collyer Analysis Was Not Reguired in This Case
In reaching his conclusion regarding deferral, the ALJ applied that analysis set forth in
Collyer Insulated Wire ( 1971) 192 NRLB 83 7 [77 LRRM 1931] (Collyer). However, in light of our
20

conclusion that bifurcation is not appropriate in this case, the Collyer analysis was not necessary.
Thus, although we agree with the ALJ' s dismissal of the deferral defense, we do so for a different
reason.
Production of Documents
An exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation. 	(Stockton Unified School District
( 1980) PERB Decision No. 143.) PERB uses a liberal standard, similar to a discovery-type
standard, to determine relevance of the requested information. (Trustees of the California State
University (1987) PERB Decision No. 613-H (Trustees).)
In defining the parameters of "necessary and relevant information" the Board has ruled
that if the requested information pertains immediately to a mandatory subject of bargaining, it
is presumptively relevant. 	(State of California (Departments of Personnel Administration and
Transportation) (1997) PERB Decision No. 1227-S (Transportation).) Failure to provide such
information is a per se violation of the duty to bargain in good faith. 	(Trustees.) On the other
hand, the Board has ruled that information not within scope is not presumptively relevant.
(Transportation.) In such cases, absent the presumption, the burden falls on the charging party
to demonstrate the infonnation sought is relevant and necessary to its representational
responsibilities. (Ibid.)
In the present case, CF A argues that the information sought was necessary to evaluate
the desirability of a re-opener on the issue of parking fees and to help formulate strategies for
future contract re-openers on parking fees. 	We agree. Therefore, because it pertains
immediately to a mandatory subject of bargaining (i.e., parking fees), we find the requested
information is presumptively relevant.
21

Accordingly, the Board concludes CSU violated HEERA section 3571(b) and (c) when
it failed to produce the requested documents.
Allegation Regarding Unlawful Consultation With an Advisory Group
In April 2002, Gerth created the task force, which, under the Chair, Professor of
Communication Studies, Val R. Smith, was assigned the following tasks: (1) Make
recommendations for the distribution of spaces in the new parking structure (Parking Structure II),
and (2) Make recommendations on how to treat students equitably given that they are paying a
higher fee for parking compared to others.
Initially, the members of the task force consisted of the chair, four members of the faculty,
two staff employees, four students, the director of support services or his designee, and, at the
chair's option, one or two members of the transportation advisory committee. Gerth did not ask
either CF A or CSEA to designate members on this task force. After numerous meetings, the task
force made several recommendations to Gerth.
CFA and CSEA alleged this conduct violated Section 3571(£). The ALJ agreed, concluding
that CSU violated Section 357l(a) and (b) when it consulted with the task force on parking matters
in violation of Section 3571(£).
Section 3571 provides, in relevant part:
It shall be unlawful for the higher education employer to do any of
the following:
(f) Consult with any academic, professional, or staff advisory group
on any matter within the scope of representation for employees who
are represented by an exclusive representative, ...
This section, which is unique to HEERA and has no counter-part in either federal or state
law, has never been interpreted by the Board. As indicated above, CSU did not except to the
22

ALJ's conclusion. Thus, the issue is not squarely before the Board and need not be addressed
herein. 	Accordingly, the Board affirms the ALJ's conclusion that CSU violated HEERA
section 3571(:f) when it consulted with the task force. 	However, because this issue would be a
matter of first impression by the Board, we decline to adopt the ALJ's analysis.
CONCLUSION
Based on the foregoing, the Board finds that CSU did not have a duty to bargain a
change of parking location and, therefore, did not violate Section 3571(c) (unilateral change)
when it prohibited the faculty from parking in the newly built parking structures.
The Board further finds that deferral of the information request charge, although timely
raised, is not appropriate under the facts of this case. With regard to the merits of this charge,
the Board finds CSU violated HEERA section 357l(b) and (c) when it failed to produce the
requested documents.
Last, since CSU did not except to the ALJ's finding that CSU violated HEERA
section 3571(:f) when it consulted with the task force, the Board affirms the ALJ's conclusion.
However, because this issue would be a matter of first impression by the Board, we decline to
adopt the ALJ's analysis.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, it is found that the Trustees of the California State University (CSU) violated
the Higher Education Employer-Employee Relations Act (HEERA), Government Code
section 357l(a), (b) and (c), by failing to provide requested necessary and relevant information
regarding parking to the California Faculty Association (CF A).
23

Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its
administrators, and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to provide properly requested necessary and relevant information
to CFA; and
2. 	Consulting with an ad hoc task force on parking on subjects within the
scope of negotiations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1. 	Provide all described parking information requested by CF A;
2. 	Within ten (10) workdays following the date this decision is no longer
subject to reconsideration, post at all sites where notices are customarily placed, a copy of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
CSU indicating that it will comply with the terms of this order. 	Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to insure that the notice is not reduced in size, altered, defaced or covered by any other
material.
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 by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on CF A and the California State Employees Association, CSU Division.
Members Shek and Neuwald joined in this Decision.
24

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. SA-CE-191-H, California State Employees
Association, CSU Division v. Trustees
of
the California State University, and Unfair Practice
Case No. SA-CE-194-H, California Faculty Association v. Trustees
of
the California State
University, in which all parties had the right to participate, it has been found that the Trustees
of
the California State University violated the Higher Education Employer-Employee Relations
Act (HEERA), Government Code section 3571(a), (b) and (c), when it failed to provide
necessary and relevant information to the California Faculty Association (CF A) regarding
parking and by consulting with an ad hoc task force (task force) on subjects within the scope
of
negotiations.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.
	CEASE AND DESIST FROM:
1.
	Failing to provide properly requested necessary and relevant information
to CFA; and
2. 	Consulting with an ad hoc task force on parking on subjects within the
scope
of
negotiations.
Dated:
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
Provide all described parking information requested by CF A.
---------
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.