The Fight Over Parking Spots: Round 2

Trustees of the California State University (2009) PERB Decision No. 1876-Ha (Issued on 4/15/09)

Is where an employee can park his or her car—as opposed to how much the employee must pay to park—a subject within the scope of representation (ie negotiable) under HEERA? In Trustees of the California State University (2006) PERB Decision No. 1876-H (Trustees I), the Board answered in the negative. There, the Board analyzed whether the location of employee parking qualified as a “term and condition” of employment under a three-part test. Under that test, a subject is within the scope of representation if it: (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. In Trustees I, the Board found that the location of employee parking did not meet the first prong of the test—involve the employment relationship—and dismissed the charge.

The union appealed and in California Faculty Ass’n v. Public Employment Relations Board (2006) 160 Cal.App.4th 609, the court of appeal overturned Trustees I. The court found the Board’s holding that the location of parking did not involve the employment relationship to be “clearly erroneous” because it conflicted with both federal precedent and the Board’s own precedent. The court then remanded the case back to the Board to consider other factors which the Board had not reached in its decision.

In Trustees of the California State University (2009) PERB Decision No. 1876-Ha (Trustees II), the Board considered the two other prongs of the three-part test for determining whether a subject matter is a term and condition of employment. First, the Board considered the second-prong of the test which asks whether the subject is of such concern to employees and management that conflict is likely to occur. The Board noted that the location of parking had often changed over the years and there was little evidence that the subject spawned grievances in the past. In addition, the Board held that even if the subject was likely to cause conflict, negotiations were not the proper method of resolving the conflict because the needs of students would not be properly represented.

Next, the Board considered the third-prong of the test which is whether requiring negotiations would abridge a fundamental management prerogative. The Board found that it would. Specifically, the Board found that the primary reason that CSU built the new parking facilities was to provide parking to students. Requiring CSU to negotiate over whether employees could park in these facilities would, according to the Board, significantly abridge CSU’s freedom to manage its campus operations. Because the Board found that the union had failed to establish the second and third prongs of the test, it dismissed the charge.

Comments:

1. I thought the Board’s holding on the second-prong of the test—whether the subject is of such concern to management and employees that conflict is likely to occur—was interesting. I don’t recall another case with a similar holding. (There may be one out there I just don’t ever recall one). Usually, the parties just concede the second prong on the assumption that since you’re currently fighting over it, it must be something likely to cause conflict. I’m not sure how viable this argument is going to be in the future on other subjects. My personal feeling is that this was a very limited holding on this specific issue and I don’t expect PERB to find many other subjects failing the second-prong.

2. The more important holding in this case involves PERB’s finding that students are third parties who can be taken into consideration in determining whether a subject infringes on fundamental management rights. How far this will be taken in the future remains to be seen. However, I can certainly see this having an impact under HEERA and EERA where student learning is involved. I can also see this argument being made under the Dills Act and MMBA in the context of providing services to the public. I expect in all these situations management will argue that requiring negotiations on certain subjects will infringe on the its fundamental mission to teach students, provide services, etc.

3. Because the court of appeal overturned the Board once already in this matter, I expect that CFA will again appeal. It’s interesting to note that the MOU between CSU and CFA that was in effect when this dispute began in 2002 has long expired. A new MOU has been negotiated and is in effect to 6/30/10. The new MOU does not mention parking locations, which means that how this decision ends will still have real meaning.

4. One final note, the California Supreme Court issued its Claremont decision in 2006; about a year and a half before the court of appeal issued its decision overturning Trustees I. Claremont dealt with the scope of representation under the MMBA, not HEERA, but the two statutes are very similar and both are (somewhat) modeled after the NLRA. The test imposed by the Court in Claremont is a little different than the Anaheim test historically used by PERB. In the future, it will be interesting to see if the courts or PERB attempt to reconcile these two tests.

(Correction: My initial post incorrectly said that the court of appeal decision was issued in 2006, a few months before Claremont was issued. That's incorrect. The court of appeal decision was issued in 2008. The version of the court of appeal decision on Westlaw actually has an incorrect date of 2006 in the body of the decision which is what threw me off.)