Trustees of the California State University (San Marcos) (PERB 1635H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES
ASSOCIATION,

Charging Party, Case No. LA-CE-619-H

V. PERB Decision No. 1635-H

TRUSTEES OF THE CALIFORNIA STATE June 4, 2004

UNIVERSITY (SAN MARCOS),

Respondent.

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 Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, 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 (attached) of an administrative law judge (ALJ). The proposed
decision found that CSU violated the Higher Education Employer-Employee Relations Act
(HEERA)' by unilaterally changing its procedures for determining employee performance

evaluation ratings without providing the California State Employees Association (CSEA) an

opportunity to bargain.

‘HEERA is codified at Government Code section 3560, et seq. Unless otherwise noted,
all statutory references are to the Government Code.

The Board has reviewed the entire record, including the
ALJ's
proposed decision,
CSU's exceptions and
CSEA's
response. The Board finds the
ALJ's
findings
of
fact to
be
free
of
prejudicial error and adopts them as its own. The Board's conclusions
oflaw
are provided
below.
DISCUSSION
Unilateral Change
In determining whether a party has violated its bargaining obligations
by
unilaterally
changing employees' terms and conditions
of
employment, 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; (2) the change concerns a
matter within the scope ofrepresentation; (3) the change was implemented before the employer
notified the exclusive representative and gave it an opportunity to request negotiations; and
(4) the change has a "generalized effect or continuing impact" on the terms and conditions
of
employment
of
bargaining unit members. (Walnut Valley Unified School District (1981)
PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision
No. 196.)
It is undisputed in this matter that employee evaluations and merit systems are matters
within the scope
of
representation. (Modesto City Schools (1983) PERB Decision No. 347;
Healdsburg Union High School District and Healdsburg Union School District/San Mateo City
School District (1984) PERB Decision No. 375; see also, NLRB v. Katz (1962) 369 U.S. 736
[50 LRRM 2177] (merit increases).) It is also undisputed that in early 2001, CSU changed the
performance evaluation (PE) and overall rating (OR) procedures, thereby changing the way
2

merit salary increases are determined, without giving CSEA prior notice or opportunity to
request bargaining. Specifically, CSU's new procedures changed the PE form to include two
above-satisfactory rating categories. CSU also changed the OR procedures to allow different
weights to be given to the various PE performance criteria instead
of
averaging the various
scores as was done previously.
CSU argues that it did not change any policy, as the OR procedures implemented in late
2000 were intended to be temporary. However, CSU's argument misses the mark since the
facts established that the new PE and OR procedures implemented in early 2001 differ from
any system previously in existence at CSU San Marcos. Thus, it is irrelevant whether the
procedures implemented in late 2000 were intended to be permanent or only temporary. The
relevant point is that the new procedures constituted a change from any system that existed
previously.
Accordingly, the Board finds that CSEA has established a prima facie case
of
a per se
unlawful unilateral change.
Waiver
Since CSEA has established a prima facie case, the burden now falls upon CSU to
establish an affirmative defense. In this regard, CSU contends that CSEA waived its right to
bargain. It is well settled that an employer may take unilateral action
if
the exclusive
representative waived its right to bargain. But any waiver
of
this right will not be lightly
inferred. (Oakland Unified School District (1982) PERB Decision No. 236.) To show that an
exclusive representative has waived its right to negotiate, there must be evidence
of
either
"clear and unmistakable" language (Amador Valley Joint Union High School District (1978)
PERB Decision No. 74), or of "demonstrable behavior waiving a reasonable opportunity to
bargain over a decision not already firmly made by the employer." (San Mateo County
3

Community College District (1979) PERB Decision No. 94.) A waiver can be shown
by
inaction on the part
of
the exclusive representative (Los Angeles Community College District
(1982) PERB Decision No. 252), but the evidence must indicate an intentional relinquishment
of
the union's right to bargain. (San Francisco Community College District (1979) PERB
Decision No. 105.)
Here, CSU argues that both Article
10
of
the collective bargaining agreement (CBA)
and Section 20.21
of
the addendum support its contention that CSEA waived its right to
bargain. The Board disagrees. Article 10
of
the CBA provides that employees shall be subject
to periodic performance evaluations. However, this is not in dispute. Indeed, the evidence
establishes that employees at CSU San Marcos have been subject to performance evaluations
for some time. What is in dispute is whether CSEA waived its right to bargain over changes to
the PE and OR procedures. Nothing in Article 10 demonstrates such a waiver.
Section 20.21
of
the addendum is more on point. That section provides for the system-
wide implementation
of
OR procedures. On this issue, Section 20.21 provides, in part:
This procedure does not require campuses to modify existing
performance evaluation forms unless existing forms do not have
an overall rating. In such cases an overall rating must be
determined and added or attached to the performance evaluation
form.
As noted in the findings
of
fact, the PE procedures at CSU San Marcos did not include
assigning an OR score at the time Section 20.21
of
the addendum was signed. Accordingly,
CSU San Marcos was one
of
the campuses required to develop procedures for the assignment
of
an OR score. Absent a waiver, CSU San Marcos would be required to bargain with CSEA
over the development
of
these OR procedures. The issue then is whether CSEA waived its
right to bargain by agreeing to Section 20.21.
4

On its face, Section 20.21 is silent on this issue. Indeed, nothing in Section 20.21
meets the standard
of
a clear and unmistakable waiver. Section 20.21 merely provides that an
OR system "must be determined" but makes no mention that CSU could unilaterally
implement such a system. In the absence
of
such a clear and unmistakable waiver, CSU has
failed to meet its burden
of
proof.
The conclusion that CSU has failed to establish a waiver holds true even considering
the extrinsic evidence offered at hearing. CSU's Labor Relations Manager and Chief
Negotiator, Freya A. Foley (Foley), testified about the negotiations surrounding Section 20.21.
Foley testified that the parties could not reach agreement at the main bargaining table over how
OR scores were to be calculated. According to Foley, CSEA wanted to use a linear model
where, as an example, the PE categories would be averaged to reach an OR score. CSU
steadfastly refused, arguing that since the job duties differ, the various PE categories should be
given different weights. Because no agreement could be reached, the parties only agreed,
"That there would be an overall score, but we wouldn't agree to how the overall score was
derived." Instead, the parties agreed that the five campuses which did not have OR scores in
place would determine such procedures themselves. Thus, based on Foley's testimony, "the
only agreement at the table, then, was that each campus would decide on its own."
Based on Foley's testimony, it is clear that during bargaining CSEA refused to agree to
an OR system whereby different PE categories could be given different weights in the OR
score. Yet, despite this fact, CSU asserts in this proceeding that CSEA knowingly waived its
right to bargain by agreeing to Section 20.21. CSU provides no explanation why CSEA, after
refusing to accede to CSU's demands at the bargaining table, would simply agree to waive its
right to further negotiations.
5

Indeed, the Board finds that Foley's testimony actually undercuts
CSU's
position.
Assuming, arguendo, that Section 20.21 was controlling, it requires that the performance
evaluation
be
performed in accordance with Article 1O's job-related criteria basis.
CSU San Marcos does not explain why its new procedure diverts from the system-wide format.
If
the parties did not agree on a system-wide OR system, then
CSEA's
contention that
Section 20.21 deferred the issue to subsequent negotiations is supported. Thus, the Board finds
that Section 20.21 does not constitute a waiver
of
CSEA's right to bargain.
Admission
of
Evidence
Finally, CSU argues that the ALJ erred by refusing to admit into evidence a document
authored by Brian Young (Young). CSU argues that the document constitutes an admission
against party interest and/or that the statements contained in the document impeach Young's
testimony. The Board agrees that the document should have been admitted into evidence. The
fact that the document was intended as a draft and constitutes hearsay affects the weight given
the evidence, not its admissibility. However, even
if
admitted, the document does not affect
the Board's decision.
CONCLUSION
Based on all
of
the foregoing, the Board finds that CSU unilaterally changed its merit
salary increase policy by changing the OR system at CSU San Marcos, and that by this conduct
CSU failed its duty to meet and confer in good faith with CSEA, in violation ofHEERA
section 3571(c), and interfered with the rights
of
unit employees to be represented by CSEA, in
violation ofHEERA section 3571(a).
REMEDY
Section 3563.3
of
HEERA provides:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
6

practice and to take such affirmative action, ... as will effectuate
the policies
of
this chapter.
Pursuant to this authority, PERB has broad authority to remedy unfair practices and
fashion remedies to effectuate the purposes and policies
of
HEERA. Here, CSU unilaterally
changed the system for calculating ORs for employees employed at CSU San Marcos, without
giving CSEA prior notice and an opportunity to bargain regarding these changes, in violation
ofHEERA section 3571(a) and (c). The ordinary remedy in unilateral change cases is an order
directing the respondent to cease and desist from continuing to promulgate or implement the
unlawful change, to rescind the change and return to the status quo, and to meet and confer in
good faith with the employee organization, upon its request, regarding matters within the scope
of
representation.
The Board is aware, however,
of
the potential disruption caused by an order to return to
the status quo. (See Rialto Unified School District (1982) PERB Decision No. 209; Ventura
County Community College District (2003) PERB Decision No. 1547.) Accordingly, the
Board will stay its order to return to the status quo ante for 60 days so that the parties can
negotiate over possible alternative remedies.2
If
the parties fail to agree to an alternative
remedy after 60 days, CSU shall be required to return to the status quo ante.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the California State University (San Marcos) (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA), Government Code secti,on 3571(a)
and (c) by unilaterally changing its policy concerning Merit Salary Increases (MSI) and by
2The Board believes that 60 days is ample time to complete negotiations.
If
for some
unforeseen reason it is not, the stay may be extended by the Office of the General Counsel for
good cause.
7

changing the system for calculating Overall Ratings (OR) for employees employed at its
CSU
San Marcos campus, without giving the California State Employees Association (CSEA) prior
notice and opportunity to meet and confer regarding these changes.
Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing to meet and confer in good faith with CSEA regarding changes in
policy affecting matters within the scope
of
representation;
2. 	Unilaterally changing its MSI policy and changing the system
of
calculating ORs for employees employed at CSU San Marcos, without giving CSEA prior
notice and opportunity to meet and confer regarding these changes;
3. 	Promulgating the OR system unilaterally implemented at
CSU San Marcos on April 1, 2001.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1.	
Rescind the OR system unilaterally implemented at CSU San Marcos on
April
1,
2001. This order shall be stayed for 60 days to provide CSU and CSEA an
opportunity to meet and negotiate over possible alternative remedies.
	If
the parties cannot
agree to an alternative remedy after 60 days, this order shall take effect.
2. 	Meet and confer in good faith with CSEA, upon its request, regarding
changes in policy affecting matters within the scope
of
representation, including any changes
to the OR system at CSU San Marcos;
3. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
8

CSU, indicating CSU 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 ensure the Notice is not reduced in size, altered, defaced or covered with anyother material.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the Sacramento Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on CSEA.
Chairman Duncan and Member Whitehead joined in this Decision.
9

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-619-H, California State Employees
Association 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) (CSU) violated the Higher Education Employer-Employee Relations
Act (HEERA), Government Code section 3560, et seq. CSU violated HEERA section 3571(a)
and (c) by unilaterally changing its policy concerning Merit Salary Increases (MSI) and
by
changing the system for calculating Overall Ratings
(OR)
for employees employed at its
CSUSan Marcos campus, without giving the California State Employees Association (CSEA) prior
notice and opportunity to meet and confer regarding these changes.
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 meet and confer in good faith with CSEA regarding changes in
policy affecting matters within the scope
of
representation;
2. 	Unilaterally changing its MSI policy and changing the system
of
calculating ORs for employees employed at CSU San Marcos, without giving CSEA prior
notice and opportunity to meet and confer regarding these changes;
3. 	Promulgating the OR system unilaterally implemented at
CSU San Marcos on April 1, 2001.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1.	
Rescind the OR system unilaterally implemented at CSU San Marcos on
April 1, 2001. This order shall be stayed for 60 days to provide CSU and CSEA an
opportunity to meet and negotiate over possible alternative remedies.
	If
the parties cannot
agree to an alternative remedy after 60 days, this order shall take effect.

2. 	Meet and confer in good faith with CSEA, upon its request, regarding
changes in policy affecting matters within the scope
of
representation, including any changes
to the OR system at CSU San Marcos.
Dated:
---------
TRUSTEES OF THE THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS)
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA ST ATE EMPLOYEES
ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-619-H
PROPOSED DECISION
(10/21/02)
Appearances: Brian Young and Virginia Watts, Labor Relations Representatives, for
California State Employees Association; Marc D. Mootchnik, Esq., University Counsel, for
California State University.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
A union has alleged that a university campus unilaterally changed policies and practices
of employee performance evaluations. In its answer, the university denies any wrongdoing.
The California State Employees Association (CSEA) filed an unfair practice charge
against the Trustees of the California State University (San Marcos) (CSU) on May 11, 2001,
and an amended charge on August 16, 2001. The Office of the General Counsel of the Public
Employment Relations Board (PERB) issued a complaint on September 12, 2001, alleging that
CSU unilaterally changed its policy concerning Merit Salary Increases (MSI) by, in essence,
changing the procedures by which employee performance evaluations are rated, in violation of
the Higher Education Employer-Employee Relations Act (HEERA) 1 section 3571(a) and (c).
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

An infonnal settlement conference, held in the PERB offices on November 13, 2001,
failed to resolve the matter.
A formal hearing was conducted in PERB' s Los Angeles office on August 13, 2002,
before the undersigned. After the filing of post-hearing briefs, the matter was submitted for
decision on September 23, 2002.
FINDINGS OF FACT
CSU is a higher education employer as defined in HEERA section 3562(g). CSEA is
an employee organization as defined in section 3562(f) and at all times relevant has been the
recognized organization, as defined in section 3562(p ), serving as the exclusive representative
of the following units of CSU's classified employees: Unit 2, Health Care Support Services;
Unit 5, Operations Support Services; Unit 7, Clerical/Administrative Support Services; and
Unit 9, Technical Support Services. All four units are covered by the same collective
bargaining agreement (Agreement).
Article 10 of the Agreement reads in part as follows:
Employee Performance
10.1 	Employees shall be subject to periodic performance
evaluations. Such evaluations should be a review of the
employee's performance and should be based upon job-related
criteria.
10.9 The term "evaluator" as used in this Article refers to
the appropriate administrator or the person designated by the
appropriate administrator to conduct the performance evaluation
of an employee. The evaluator shall be familiar with the regular
duties of the employee.
10.10 Performance evaluations shall not be subject to
Article 7, Grievance Procedure, unless the grievant alleges the
terms of this Agreement have been violated, misinterpreted, or
misapplied.
2

Historically at CSU's San Marcos campus (CSUSM), an employee received an annual
performance evaluation (PE) on his/her anniversary date. It was usually written by the
employee's direct supervisor, but often by a designated leadperson, who, although a unit
member, had the most familiarity with the employee's regular duties. It was signed by the
"evaluator," the Department Head, and the employee. The PE form listed several criteria of
performance, each containing a hierarchy of standards from, e.g., "fails to meet the minimum
requirements" to "exceeds reasonable expectations" for the evaluator to choose from, as well
as space for the evaluator's comments. The form also provided a box for the evaluator's
recommendation as to whether or not an employee was "eligible" for a Service Based Salary
Increase (SBSI). SBSis were merit increases which employees could receive in addition to
contractual across-the-board wage increases, market adjustments, and shift differentials.
Notwithstanding the evaluator's recommendation, SBSis were totally within the discretion of
management, there was no uniformity to their being granted, and there was no necessary
relationship to the PEs.
At some time after the Agreement became effective, the parties engaged in formal
bargaining and agreed upon an Addendum to the Agreement (Addendum), effective July 1,
2000 through June 30, 2001. 	At issue in this case is section 20.21 of the Addendum, which
replaced the SBSI with a MSI. Its intent was to provide uniformity by ensuring that merit
increases would be tied to PEs. Section 20.21 reads in part as follows:
Merit Salary Increase
a. A Merit Salary Increase is movement within a salary
range based upon an overall annual job performance rating of
satisfactory, its equivalent, or better. An overall rating is a
comprehensive rating based on a review of all performance
categories.
3

c. Each employee shall receive a performance evaluation
in accordance with Article 10, Employee Performance. This
procedure does not require campuses to modify existing
performance evaluation forms unless existing forms do not have
an overall rating. In such cases an overall rating must be
determined and added or attached to the performance evaluation
form.
h. The decision of the President, the president's designee,
or other appropriate administrator as to who is to receive an MSI
and the percent amount for each performance rating level of the
MSI shall not be subject to Article 7, Grievance Procedure, unless
the employee alleges that he or she did not receive the same
percent increase ... as other employees at the same performance
rating level, or if the employee alleges that an existing overall
rating was changed for the sole and express purpose of denying
an MSI. Performance evaluations shall not be subject to Article
7, Grievance Procedure, unless the grievant alleges the
procedures in the provisions of Article 10 or this Section have
been violated, misinterpreted, or misapplied. [Emphasis added.]
Section 20.21 also provides that all employees with an overall rating (OR) at the satisfactory
level receive a 1.2 percent MSI, employees above the satisfactory level receive a higher
percent MSI to be determined by management, and all employees at the same OR level receive
the same percent MSI.
When the Addendum became effective in July 2000, most CSU campuses already had
ORs in place. However, five campuses, including CSUSM, did not have ORs, therefore those
campuses had to determine OR procedures. Nothing in the Agreement or the Addendum
specified how the OR procedures were to be developed or calculated; this was left up to each
of the five campuses. At CS USM at that time, PEs for approximately 130 unit employees had
already been completed for the year 2000; PEs for the remaining 70 unit employees had not yet
been completed but were at various stages of the process. Thus, in order to comply with the
Addendum, an OR procedure had to be developed as quickly as possible.
4

In September 2000, representatives of CSUSM and CSEA met to discuss the matter.
CSUSM first proposed that an administrator review the 130 PE's already completed and
unilaterally assign ORs; CSEA rejected it. 	CSEA proposed, and in November, 2000, the
parties agreed, on a system which assigned specific numerical values to each of the standards
in the various PE performance criteria, as follows:
0 	NA, or not adequate categories[2]
1 	consistently fails to meet [minimum requirements]
2 	sometimes below [minimum requirements] (needs improvement)
3 	consistently meets [minimum requirements] (satisfactory)
4 	consistently exceeds [minimum requirements]
Each performance criteria would carry the same weight, and the average of all the scores
would constitute the OR. Whoever wrote the evaluation, even if a non-supervisory leadperson,
would also average the scores to arrive at the OR. The PE form was changed to add the
numerical values to the performance categories, and the term "evaluator" was changed to
"rater;" no other changes were made to the PE form or procedures.
CSEA contends that the parties' discussions were "meet and confer" sessions. In this
regard, CSEA Representative Brian Young (Young) testified that local campuses had in the
past engaged in formal bargaining on a number of issues of local concern, including layoffs.
In disagreement, CSUSM Human Resources Officer Melody Kessler (Kessler) testified that
she never meant to formally "meet and confer," as that can only be done by the chancellor or
his designee. Kessler claimed that the OR discussions in 2000 were held in the context of the
regular monthly "labor-management meetings" between CSUSM and CESA, and were
"brainsto1ming" sessions rather than formal bargaining. Labor Relations Manager Freya Foley
2 This rating would be chosen if the performance criteria had no relevance to the
employee's job performance, and would not be included in the OR averaging.
5

(Foley), who served as CSU's chief negotiator for the Agreement and the Addendum but did
not participate in the local OR discussions, testified that individual campuses have no authority
to "meet and confer" except on certain issues, including layoffs, specified by the Agreement to
be negotiated locally. 	Other local issues may be handled by an informal "meet and discuss"
process, which is what the parties engaged in at CSUSM. 	Foley stated that if the Addendum
negotiators wanted the five campuses to engage in formal bargaining, they would have written
this into the Addendum. Further, Foley testified that, during Addendum negotiations, there
was no discussion as to whether the local campuses were obligated to seek CSEA's input at all
in determining the OR. CSEA did not contradict Foley's account: Young testified that in prior
"meet and confer" sessions, the Chancellor had designated a representative, which did not
occur in the OR discussions. And Young conceded that there is a difference between "meet
and confer" and "meet and discuss." I find the greater weight of evidence lies with CSU's
position, and conclude, accordingly, that the parties did not engage in formal "meet and
confer" sessions in developing the OR system for CSUSM.3
In early 2001, CSUSM developed a new OR procedure without providing CSEA any
prior notice, and without seeking its input. The new procedure changed the date of annual
evaluations from employees' anniversaries to a uniform date, April 1, and provided for
employees to voluntarily submit self-evaluations. The new procedure changed the PE form by
designating two above-satisfactory ratings, i.e., "4. Commendable 	performance frequently
exceeds expected standards" and "5. Outstanding - performance consistently exceeds expected
3 In making this finding, I do not discredit CSEA's witnesses, but find that CSEA
believed in good faith, albeit in error, that it was engaging in formal bargaining.
6

standards." The PE form also added a signature line for a fourth person, i.e., an administrator,
who would not necessarily be the evaluator, but who would calculate the OR. But instead of
averaging the uniform numerical scores, the administrator would have the discretion to assign
weights to the various PE performance criteria according to the administrator's judgment of the
individual employee and his job functions. 	Kessler distributed to employees a memorandum
dated March 23, 2001,4 explaining the new PE and OR procedures, which were unilaterally
implemented on April I. The memorandum stated in part:
• 	Who should complete the "overall rating"?
This can only be completed by the appropriate
administrator regardless of who completes the evaluation.
• 	How is the "overall rating" calculated?
The overall rating is NOT an average of the rated
areas of the evaluation. The overall rating should evaluate
the employee's total performance including but not limited
to how they have performed their duties, responsibilities,
attitudes, interpersonal skills, contribution to the
organization and relationship with others.
Young, who learned of the new system from unit employees, contacted Kessler by
memo of April 19, contending that adding a non-evaluating administrator to the PE process
was in violation of Article 10.9 of the Agreement which specifies only one "evaluator."
Young also complained that, by giving an administrator the discretion to assign any weight to
any performance category for any individual employee, CSUSM would in effect be able to
arbitrarily decide which employees receive MSis and which do not. In the memo, Young
requested that CSUSM cease and desist from implementing the new system, and continue the
origmal system until a different one was agreed upon in formal bargaining with CSEA.
Kessler responded by letter of April 19, claiming that CSUSM's new procedures were "in total
4 All dates hereafter refer to the year 2001, unless otherwise specified.
7

compliance" with the Agreement, and that if Young disagreed with the Agreement he could
contact the Chancellor's office "to initiate a formal meet and confer process." Kessler did not
mention the parties' earlier OR meetings in 2000 or her contention that the meetings were
informal. She noted that CSU would be forming a committee to discuss new forms and
procedures for the following year, and would ask representatives from CSEA and other
employee organizations to serve on it. Kessler also offered to be "more than available to talk
with you regarding any issues." Young did not contact either the Chancellor's office or
Kessler for further discussions.
CSEA contends that the original OR was intended to be a permanent system. CSU
disagrees and argues, in its post-hearing brief, that it was "implicit" the OR would be in effect
only for the year 2000. 	In that regard, Foley testified that in formal bargaining for the
Addendum, the parties discussed the fact that the five campuses without ORs would have to
quickly develop OR systems for those PEs already completed, but it would not necessarily be
the same system as that developed for future PEs. Foley admitted, however, that there was no
agreement between the parties on the content or tenure of the ORs, as that was left up to the
five campuses. Kessler, in her testimony, contended that CSEA's concern, that leadpersons
acting as evaluators would effectively be recommending MSis for employees in the same
bargaining unit, was evidence of CSEA' s understanding that the OR was only temporary.
However, beyond stating that during their meetings, the parties did not "focus" on anything
beyond the year 2000, Kessler could not state that they actually discussed how long the OR
would remain in effect, and she admitted there was no agreement on its duration. According to
Young, the parties had no discussion at all on the duration of the OR. Thus, there is scant
evidence to support either party's position on this issue, and there is scant evidence that the
8

parties had any mutual understanding of the duration of the original OR. Accordingly, I do not
find that the parties had any agreement as to whether the original OR system was to be
permanent, or was to apply only to the year 2000, and if so, how the next OR system would be
developed.
Recently, CSU has been working with a labor-management committee, which includes
CSEA, on developing new PE procedures and forms.
ISSUES
1. Did CSU unilaterally change the MSI policy by changing the OR procedures without
giving CSEA prior notice or opportunity to meet and confer?
2. Did CSEA waive its right to meet and confer?
CONCLUSIONS OF LAW
Unilateral Change
In determining whether a party has violated its bargaining obligations by unilaterally
changing employees' terms or conditions of employment, 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; (2) the change concerns a
matter within the scope of representation; (3) the change was implemented before the employer
notified the exclusive representative and gave it an opportunity to request negotiations; and
( 4) the change has a "generalized effect or continuing impact" on the terms and conditions of
employment of bargaining unit members. (Walnut Valley Unified School District (1981)
9

PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision
No. 196 (Grant).)
Applying these criteria to the instant case, it is undisputed that employee evaluations
and merit systems are matters within the scope of representation. 	(Modesto City Schools
(1983) PERB Decision No. 347 (performance evaluations); Healdsburg Union High School
District et al (1984) PERB Decision No. 375 (merit increases);5 see also, NLRB v. Katz
(1962) 369 U.S. 736 [50 LRRM 2177] (merit increases).) 	It is also undisputed that CSUSM
changed the PE and OR procedures, thereby changing the way MSis are determined, without
giving CSEA prior notice or opportunity to request bargaining.
As to a change in policy, PERB has held that "established policy may be embodied in
the terms of a collective agreement, or where the contract is silent or ambiguous as to a policy
it may be ascertained by examining past practice or bargaining history." (Marysville Joint
Unified School District (1983) PERB Decision No. 314 (Marysville); see also, Grant; Pajaro
Valley Unified School District (1978) PERB Decision No. 51.)
CSU argues that it did not change any policy, as the original OR was only temporary,
and the few months in 2000 during which it was implemented was too short a time to
constitute a past practice. However, I have already found, above, that the parties had no
agreement that the original OR would be only temporary. Thus, the question arises as to how
long a process must remain in effect for it to become a past practice. In that regard, the
National Labor Relations Board (NLRB) has held that a past practice becomes a "term or
5 These cases were decided under the Educational Employment Relations Act (EERA),
which, in section 3543.2, specifically enumerates the subjects included in the scope of
representation. HEERA section 3562(r)(l) defines the scope ofrepresentation for CSU more
broadly, i.e., "wages, hours of employment, and other terms and conditions of employment."
10

condition of employment" over which an employer must bargain when the employer must
follow established guidelines which employees have a reasonable expectation will continue
(NLRB v. Katz, supra, 369 U.S. 736; The Daily News of Los Angeles (1994) 315 NLRB 1236,
[148 LRRM 1137] aff d (D.C. Cir. 1996) 73 F.3d 406 [151 LRRM 2242]), or when a past
practice can be inferred from the employer's anecdotal actions. (Dow Jones & Co., Inc. (1995)
318 NLRB 574 [150 LRRM 1089].)
In the instant case, the parties developed an OR system which, in effect, determined the
MSis of all employees in the year 2000. Notwithstanding that there was no agreement on how
long this system would remain in effect, it established guidelines which CSU was required to
follow and which neither CSEA nor the employees had any expectation would change, nor any
apparent intent to change it. Thus, it can be inferred, and unit employees were entitled to
reasonably expect, that the original OR system would remain in effect unless and until the
parties agreed to change it.
Accordingly, I find that the original OR system itself constituted a policy upon which
the MSI was to be based, and that by unilaterally changing the OR system, CSU unilaterally
changed the MSI policy as well.
Waiver
CSU also contends that CSEA waived its right to bargain. It is well settled that an
employer may take unilateral action if the exclusive representative waived its right to bargain.
But any waiver of this right will not be lightly inferred. 	(Oakland Unified School District
(1982) PERB Decision No. 236.) To show that an exclusive representative has waived its right
to negotiate, there must be evidence of either "clear and unmistakable" language (Amador
Valley Joint Union High School District (1978) PERB Decision No. 74), or of "demonstrable
11

behavior waiving a reasonable opportunity to bargain over a decision not already firmly made
by the employer." (San Mateo County Community College District (1979) PERB Decision
No. 94 (San Mateo).) A waiver can be shown by inaction on the part
of
the exclusive
representative (Los Angeles Community College District (1982) PERB Decision No. 252),
but the evidence must indicate an intentional relinquishment
of
the union's right to bargain.
(San Francisco Community College District (1979) PERB Decision No. 105.)
In Marysville, cited by CSU in support
of
its position, the parties' collective bargaining
agreement provided for lunch periods
of
"no less than 30 minutes." Notwithstanding that past
practice had allowed employees to take longer lunches, PERB found that when the employer
shortened lunch periods to 30 minutes, it acted within its discretion granted by the "clear
language"
of
the contract, and that the union had waived further bargaining on that issue.
Here, CSU argues that the new OR system was created and implemented in the manner
"contemplated" by, and is in "accord" with, both article 10
of
the Agreement and section 20.21
of
the Addendum, which give the president discretion to determine which employees receive
MS Is and the percent amount for each performance rating level, 6 and which do not provide for
local bargaining. Therefore, according to CSU, CSEA waived its right to bargain. CSU is
correct that neither the Agreement nor the Addendum provide for local formal bargaining on
the OR. However, CSEA believed, in good faith but in error, that it was engaging in formal
6 CSU also claims that only management can legally determine wages, and if
leadpersons were to calculate the ORs, they would effectively be setting wages, in violation of
HEERA. I find no authority to support this claim.
12

bargaining in 2000, thus no waiver can be found in CSEA's participation in these informal
meetings. 7 Nor can waiver be found in Young's failure to contact either the Chancellor or
Kessler after Kessler's memo of April 19. By that date, the new OR had already been
implemented; Kessler did not offer to meet and confer, but merely to "talk;" and CSEA had no
desire to change the Agreement, thus there was no need to contact the Chancellor, as Kessler
had suggested. Accordingly, I do not find that Young's inaction demonstrated behavior
showing an intent to waive any "reasonable opportunity to bargain over a decision not already
made." (San Mateo.)
Further, I see nothing in the Agreement or the Addendum to indicate CSEA's
intentional relinquishment of its right to bargain. Unlike Marysville, neither the Agreement
nor the Addendum specify how the OR is to be calculated, or by whom, notwithstanding the
president's discretion as to what percent increase the MSis would be and who would receive
them. To paraphrase CSU negotiator Foley, if the parties meant to give the local campuses full
discretion to develop their OR systems, the parties would have said so in the Addendum.
Accordingly, I do not find that CSEA waived its right to bargain regarding the OR.
Conclusion
Based on all of the foregoing, I find that CSU unilaterally changed its MSI policy by
changing the OR system at CSUSM, and that by this conduct CSU failed its duty to meet and
confer in good faith with CSEA, in violation ofHEERA section 357l(c), and interfered with
7 In Goleta Union School District (1984) PERB Decision No. 391, PERB found no
waiver in the union's failure to demand bargaining, where the union erroneously believed that
the employer's conduct was already prohibited by the parties' collective agreement. I find this
case analagous to the instant situation.
13

the rights
of
unit employees to be represented by CSEA, in violation
ofHEERA
section
3571(a).
REMEDY
HEERA section 3563.3 gives PERB:
...
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, ... as will effectuate the policies
of
this
chapter.
Here, CSU unilaterally changed its MSI policy by changing the system for calculating
ORs for employees employed at CSUSM, without giving CSEA prior notice and opportunity to
bargain regarding these changes, in violation
of
HEERA section 3571(a) and (c). The ordinary
remedy in unilateral change cases is an order directing the respondent to cease and desist from
continuing to promulgate or implement the unlawful change, to rescind the change and return
to the status quo, and to meet and confer in good faith with the employee organization, upon its
request, regarding matters within the scope
of
representation.	
It
is also the ordinary remedy
that the respondent be ordered to post a notice incorporating the terms
of
the order.
It
effectuates the purposes
of
the HEERA that employees be informed by a notice, signed by an
authorized agent, that the respondent has acted unlawfully, is being required to cease and desist
from its unlawful activity, and will comply with the order.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, it is found that on or about April 1, 2001, and continuing thereafter, the Trustees
of
the California State University (San Marcos) (CSU) violated the Higher Education
Employer-Employee Relations Act (HEERA), Government Code section 3571(a) and (c), by
unilaterally changing its policy concerning Merit Salary Increases (MSis) by changing the
14

system for calculating Overall Ratings (ORs) for employees employed at its San Marcos
campus (CSUSM), without giving the California State Employees Association (CSEA) prior
notice and opportunity to meet and confer regarding these changes. Therefore, pursuant to
HEERA section 3563.3, it is hereby ORDERED that CSU, its governing board and its
representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with CSEA regarding changes in
policy affecting matters within the scope of representation;
2. 	Unilaterally changing its MSI policy by changing the system of
calculating ORs for employees employed at CSUSM, without giving CSEA prior notice and
opportunity to meet and confer regarding these changes;
3. 	Promulgating the OR system unilaterally implemented at CSUSM on
April 1, 2001.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1. 	Within ten (10) working days after service of a final decision in this
matter, rescind the OR system unilaterally implemented at CSUSM on April 1, 2001;
2. 	Meet and confer in good faith with CSEA, upon its request, regarding
changes in policy affecting matters within the scope of representation, including any changes
to the original OR system implemented at CSUSM in November 2000;
3. 	Within ten (10) working days after service of a final decision in this
matter, post at all work locations where notices to unit employees employed at CSUSM
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
15

be signed by an authorized agent of CSU, indicating that CSU will comply with the terms of
this Order. Such posting shall be maintained for a period of thirty (30) consecutive working
days. Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced, or covered with any other material;
4. 	Upon issuance of a final decision in this matter, make written
notification of the actions taken to comply with this Order to the San Francisco Regional
Director of the Public Employment Relations Board (PERB or Board) in accord with the
director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with
PERB itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. 	(Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
16

A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135( d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
L~ f 	Lkintn~½ ,Ann L. Weinman
Administrative Law Judge
17