Citations
- 51 Cal. App. 4th 923
Full opinion text
Opinion
JOHNSON, J.
California State Employees’ Association, CSU Division, SEIU Local 1000, AFL-CIO, petitions for review of a decision of the Public Employment Relations Board (PERB or Board). The Board rejected the proposed decision of the administrative law judge and found the California State University (CSU) had not committed an unfair labor practice by unilaterally suspending payment of merit salary adjustments without providing the union an opportunity to discuss the decision and its effects on its members.
A majority of the Board members concluded CSU did not have an established practice of paying merit salary adjustments (MSA’s) and therefore CSU’s obligation to fund them ceased at termination of the contract which provided for MSA’s for the “duration” of the contract. In addition, the Board found CSU was statutorily prohibited from paying merit salary adjustments because the Legislature had not provided funds expressly for this purpose.
We conclude the Board’s finding the CSU did not have an established practice of paying merit salary adjustments is not supported by the evidence and is contrary to established PERB precedent. We further conclude the Board’s interpretation of the controlling contractual and statutory provisions is clearly erroneous. Accordingly, we reverse the Board’s decision.
Facts and Proceedings Below
The Donahoe Higher Education Act established a unified and centrally administered state college system. (Stats. 1960,1st Ex. Sess., ch. 49, § 1, p. 397, [adding present section 66000 et seq., formerly sections 22500-22705, to the Education Code].) The act transferred administration of the state colleges from the Director of Education and State Board of Education to the trustees of the state college system. (See 37 Ops.Atty.Gen. 69 (1961); Ed. Code, present § 66606, former § 22604.) The act gave the trustees of CSU authority to decide matters concerning the selection, pay and classification of employees. (Ed. Code, §§ 66609, 89500.)
In response to an increasing demand among state employees for a formal system of collective bargaining, in the 1970’s the Legislature enacted several measures to provide for collective bargaining in public employment. In 1975, the Legislature enacted the Educational Employment Relations Act (EERA). (Gov. Code, § 3540 et seq.) In 1977, the Legislature adopted the State Employer-Employee Relations Act (SEERA). (Gov. Code, § 3512 et seq.) And in 1978, the Legislature enacted the Higher Education Employer-Employee Relations Act (HEERA). (Gov. Code, § 3560 et seq.) HEERA granted the right of collective bargaining to employees in the CSU and the University of California systems. (See Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 177 [172 Cal.Rptr. 487, 624 P.2d 1215].)
In enacting HEERA the Legislature found the “people of the State of California have a fundamental interest in the development of harmonious and cooperative labor relations between the public institutions of higher education and their employees.” (Gov. Code, § 3560, subd. (a).) The Legislature intended HEERA “to provide the means by which relations between each higher education employer and its employees may assure that the responsibilities and authorities granted to the separate institutions under the Constitution and by statute are carried out in an atmosphere which permits the fullest participation by employees in the determination of conditions of employment which affect them. It is the intent of this chapter to accomplish this purpose by providing a uniform basis for recognizing the right of the employees of these systems to full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of representation in their employment relationships with their employers and to select one of these organizations as their exclusive representative for the purpose of meeting and conferring.” (Gov. Code, § 3560, subd. (e).)
Petitioner, The California State Employees’ Association, CSU Division, SEIU Local 1000, AFL-CIO (Union), is the exclusive representative of four employee bargaining units established under HEERA. In 1982 the Union and CSU entered into their first collective bargaining agreement or “memorandum of understanding.” The agreement covered the period of July 1, 1982, through June 30,1985. Apparently CSU paid merit salary adjustments for the duration of this agreement.
A subsequent agreement negotiated between the union and CSU for the period 1985 to 1989 provided “merit salary adjustments shall be subject to funds being appropriated by the Legislature and made available to the CSU specifically for merit salary adjustments.” The CSU paid MSA’s from 1985 to 1988. However, due to a budget shortfall and the Legislature’s failure to specifically fund MSA’s, CSU suspended payment of MSA’s during fiscal year 1988-1989.
Historically, CSU received a specific allocation from the state budget to fund MSA’s. However, the practice stopped during the administration of Governor George Dukemejian and during this period CSU apparently funded MSA’s through alternative funding sources or from internal savings.
For the successor agreement the Union sought to protect its bargaining unit employees from further suspensions of MSA’s by eliminating the contract language making MSA’s “subject to” specific funding from the Legislature. For the 1989 to 1992 agreement—the agreement at issue in this case—the parties agreed MSA’s would be paid for the term of the agreement. Section 20.19 of the agreement provided: “Merit Salary Adjustments shall be paid effective July 1, 1989, and for the duration of this agreement, subject to provisions 20.18 and 25.2.”
Section 20.18 explained the criteria for granting MSA’s. This section provided “[mjovement between steps on the salary range shall be based on merit and effective performance.” Section 25.2 pertained to “reopeners,” or renegotiation of contract provisions, during the term of the agreement. By its terms, the agreement was to expire on May 31, 1992.
The parties began negotiations on a successor agreement during the spring of 1992. The union presented its proposal on March 1, 1992. The union received CSU’s proposal in mid-April 1992. In early March the parties agreed their negotiations on a successor agreement would deal with the noneconomic issues first, before reaching economic issues.
On April 27, 1992, CSU’s negotiator announced CSU intended to delete further provision for MSA’s. CSU’s proposal for the successor agreement was not to pay MSA’s unless the Legislature specifically funded MSA’s. CSU’s announcement came at a time when the parties were still negotiating noneconomic issues.
On May 31, 1992, the parties’ prior agreement expired.
On June 1, 1992, CSU’s representative told the union’s bargaining representative all contract terms would be continued in effect during negotiations on the successor agreement “as long as progress is being made.”
On June 9, 1992, CSU’s representative informed the union’s representative CSU’s new position was to suspend payment of MSA’s but to continue all other contract terms from the prior agreement during negotiations.
CSU suspended MSA’s effective June 1, 1992. At the time the parties had not discussed any economic issues. In addition, as of June 1, 1992, the Legislature had not yet adopted a budget for the 1992-1993 fiscal year.
CSU refused to negotiate its decision to suspend MSA’s and the effect of that decision on unit employees. CSU took the position it was only contractually obligated to pay MSA’s “for the duration” of the agreement and the agreement by its terms expired the day before, on May 31, 1992. CSU contended it had contractual, as well as statutory, authority for its unilateral suspension of MSA’s.
Prior to the suspension of MSA’s, neither party had requested PERB to declare an impasse. In late June the union requested impasse, which was opposed by CSU. The union withdrew the request on August 10, 1992. CSU requested impasse on November 20, 1992, which it later withdrew. The parties continued negotiations and in April 1993 reached a successor agreement.
In the meantime the union filed an unfair labor practice charge with PERB on July 6, 1992. After investigation, PERB’s general counsel issued a complaint against CSU on January 11, 1993. The complaint alleged that before June 1, 1992, MSA’s were paid based on merit and effective performance, and that on June 1, 1992, CSU changed this policy by suspending payment of MSA’s. The complaint claimed CSU took this action without affording the exclusive bargaining representative an opportunity to meet and confer over both the decision and the effects of the change in policy in violation of HEERA. (Gov. Code, § 3571, subds. (a) & (c); see fn. 5, ante.)
CSU filed its answer on January 29, 1993, admitting jurisdiction but denying any violation of HEERA. CSU further admitted suspending MSA payments on June 1, 1992. CSU asserted as affirmative defenses, among others, that the union had contractually waived its right to payment of MSA’s after expiration of the prior agreement, and CSU was prohibited by statute from paying MSA’s or any other cost item which had not been specifically funded by the Legislature.
An administrative law judge (ALJ) held formal hearings and at their conclusion found CSU violated HEERA by unilaterally suspending MSA’s prior to completion of bargaining and the statutory impasse procedures. However, because the ALJ determined Government Code section 3572 expressly requires legislative funding before contractual provisions involving the expenditure of funds can be implemented, the ALJ concluded he did not have the authority to order payment of MSA’s as a remedy.
Both the union and CSU filed exceptions to the ALJ’s proposed decision with PERB. After oral arguments, the Board issued its decision (PERB Dec. No. 1093-H) on April 5, 1995. In a two-to-one decision the Board reversed the ALJ’s proposed decision and found CSU had both a contractual and statutory right to suspend payment of MSA’s and therefore had committed no unfair labor practice. The union filed a request for reconsideration which was denied. (PERB Dec. No. 1093a-H.)
We granted the union’s petition for writ of review.
Discussion
I. Judicial Standard of Review of PERB Decisions.
“ ‘[T]he relationship of a reviewing court to an agency such as PERB ... is generally one of deference.’ (Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012 [175 Cal.Rptr. 105], citing Ford Motor Co. v. NLRB (1979) 441 U.S. 488, 495 [60 L.Ed.2d 420, 426, 99 S.Ct. 1842]; accord, Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196 [191 Cal.Rptr. 60].) Such deference is mandated by HEERA itself. ‘The findings of the board with respect to questions of fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, are conclusive.’ (Gov. Code, § 3564, subd. (c).)
“[The Supreme Court] recently reaffirmed the limited nature of judicial review of a labor board’s determinations under the substantial evidence standard. ‘Of course, we do not reweigh the evidence. If there is a plausible basis for the Board’s factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so. [Citations.] We will uphold the Board’s decision if it is supported by substantial evidence on the whole record. [Citations.]’ (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756-757 [195 Cal.Rptr. 651, 670 P.2d 305], cert. den. (1984) 466 U.S. 972 [80 L.Ed.2d 819, 104 S.Ct. 2345]; see also San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12 [154 Cal.Rptr. 893, 593 P.2d 838]; Moreno Valley Unified School Dist. v. Public Employment Relations Bd., supra, 142 Cal.App.3d at p. 196.)
“Under the substantial evidence standard, when a labor board chooses between two conflicting views, a reviewing court may not substitute its judgment for that of the Board. As the United States Supreme Court has observed, ‘To be sure, the requirement for canvassing “the whole record” in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does' it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 488 [95 L.Ed. 456, 467-468, 71 S.Ct. 456].)” (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617-618 [224 Cal.Rptr. 631, 715 P.2d 590] [Supreme Court deferred to PERB’s finding in-house medical staff (interns) were employees entitled to collective bargaining rights because Board’s findings and interpretations were reasonable]; see also Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804-805 [244 Cal.Rptr. 671, 750 P.2d 313].)
Appellate courts also generally defer to PERB’s interpretations of controlling statutory provisions. “Under established principles PERB’s construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous.” (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856 [191 Cal.Rptr. 800, 663 P.2d 523]; see also Banning Teachers Assn. v. Public Employment Relations Bd., supra, 44 Cal.3d 799, 804.)
We review the issues raised in this petition with these standards in mind.
II. The Standard for Establishing a Prima Facie Case of an Illegal Unilateral Change in the Terms and Conditions of Employment.
An employer’s unilateral change in terms and conditions of employment within the scope of representation is, absent a valid defense, a per se refusal to negotiate and a violation of HEBRA. (Gov. Code, § 3571, subd. (c); Regents of the University of California (1985) PERB Dec. No. 520-H [9 PERC