Los Angeles Community College District (Watts) (PERB 0908E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD O. 	WATTS,
Complainant,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-PN-116
PERB Decision No. 	908
October 24, 1991
Appearances: 	Howard 0. 	Watts, 	on his own behalf; 	James R. 	Lynch,
Assistant General Counsel, 	for Los Angeles Community College
District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(Board or PERB) 	on an appeal 	filed by
Howard O. 	Watts 	(Watts) 	to an administrative determination
(attached) 	by a PERB Regional 	Director.1 The Regional 	Director
dismissed 	the 	complaint 	filed by Watts 	against 	the 	Los 	Angeles
Community College District 	(District) 	which 	alleged that 	the
1This appeal 	is 	brought pursuant 	to 	PERB Regulation 	32925
which states, 	in pertinent part:
Within 20 days 	of the date of 	service of a
dismissal 	made pursuant 	to 	section
32920(b)(8) 	or a determination made pursuant
to section 32920(b)(10), 	any party adversely
affected by the 	ruling may 	appeal 	to 	the
Board 	itself.
PERB 	Regulations 	are 	codified at California Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
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District 	violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
section 3547(a) and (b).2
Specifically, 	Watts 	alleges 	the 	District violated 	section
3 54 7 when it amended its 	initial proposal and failed to 	indicate
on the 	agenda 	that 	the 	initial 	proposal 	had been amended. 	The
Board has 	reviewed the dismissal 	and, 	finding 	it 	free of
prejudicial 	error, 	adopts 	it as 	the decision of 	the Board 	itself
consistent with the 	discussion below.
In addition to Watts' 	appeal of the dismissal of the public
notice 	complaint, 	the District has 	filed an appeal of 	the 	appeals
assistant's 	rejection of 	its 	opposition to Watts' 	appeal. 	On
July 	16, 	1991, 	the appeals assistant 	sent a letter to the
District which rejected 	its 	opposition as 	untimely 	filed. 	For
2EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3547 	states, 	in pertinent
part:
(a) 	All 	initial proposals 	of 	exclusive
representatives 	and 	of public 	school
employers, 	which relate to matters within the
scope of representation, 	shall be presented
at a public meeting of 	the public 	school
employer 	and 	thereafter 	shall 	be public
records.
(b) 	Meeting and negotiating 	shall not 	take
place on any proposal until 	a 	reasonable 	time
has 	elapsed after the 	submission of 	the
proposal 	to enable 	the public 	to 	become
informed 	and 	the public 	has 	the 	opportunity
to 	express 	itself 	regarding the proposal 	at 	a
meeting of 	the public 	school 	employer.
N	
2

the reasons 	stated below, 	the Board denies 	the District's 	appeal
of 	its 	untimely 	filed opposition.
I. 	TIMELINESS 	ISSUE
FACTUAL 	SUMMARY
On July 	12, 	1991, 	the Board received by regular U.S. 	mail a
letter dated June 27, 	1991, 	written by the District's Assistant
General Counsel 	in opposition to 	the 	appeal 	filed by Watts 	in
Case No. 	LA-PN-116. 	The response to the appeal 	in Case No.
LA-PN-116 was 	due 	to be 	filed with PERB 	no 	later than Friday,
June 28, 	1991. 	On July 16, 	1991, 	the appeals assistant wrote a
letter to 	the 	District's Assistant 	General 	Counsel 	stating 	that
the 	District's 	filing must be 	rejected 	as 	untimely 	filed.
Pursuant to PERB Regulation 	section 32360, 	the District 	filed an
appeal 	of 	its 	untimely 	filing to 	the 	Board 	itself.
DISTRICT'S 	APPEAL
The District 	states 	that 	its 	letter of opposition, 	dated
June 27, 	1991, 	was 	inadvertently mailed to the wrong address due
to a 	typographical 	error. 	The 	envelope was 	addressed to 	"1031
8th 	St." 	As 	the District's 	opposition was 	properly and timely
mailed to Watts, 	the District argues 	there will be 	no prejudice
to Watts 	if 	the Board accepts 	the District's 	opposition. 	The
District 	concludes 	its 	appeal by 	stating that 	it did timely mail
its 	opposition to 	the Board and that Watts would not be
prejudiced 	should 	the 	Board 	accept 	the 	District's 	opposition.
w	3

WATTS' 	RESPONSE TO APPEAL
Watts 	first 	argues 	that 	the 	District's 	opposition 	letter was
filed on July 	12, 	1991, 	which is 	"way past the deadline 	for
filing their position." 	Watts 	argues 	there 	is 	no 	good 	cause 	for
PERB to 	accept 	the 	District's 	opposition 	letter 	since 	it was
supposed 	to 	be 	sent by 	certified mail 	by 	that 	late 	date 	for 	PERB
to 	excuse the misdirected 	letter. 	Watts 	also 	states 	that 	the
fact he 	received 	the 	opposition 	letter does 	not 	mean that 	he
would not be prejudiced by 	the 	Board's 	decision to 	excuse 	the
late 	filing.
DISCUSSION
There 	are 	two problems with 	the 	District's 	opposition to
Watts' 	appeal. 	First, 	the address on the envelope was
incorrectly typed as 	"1031 	8th St." 	Second, 	the 	opposition was
sent by regular U.S. 	mail on June 27, 	1991. 	The last day for the
District's opposition to be timely filed was June 	28, 	1991.
Therefore, 	the 	opposition 	should have 	been mailed by 	certified
mail 	or 	express 	United 	States 	mail 	to 	assure that 	the 	opposition
would be timely 	filed by the 	final 	filing date of June 	28, 	1991.
PERB 	Regulation 	32135 provides:
All 	documents 	shall 	be 	considered 	"filed"
when actually 	received 	by 	the 	appropriate
PERB office before 	the 	close 	of 	business 	on
the 	last date 	set 	for 	filing or when 	sent by
telegraph or 	certified 	or 	Express 	United
States 	mail postmarked not 	later than the
last 	day 	set 	for 	filing 	and 	addressed 	to 	the
proper PERB office.
4

In this 	case, 	PERB did not actually receive the District's
opposition until July 	12, 	1991, 	by regular mail. 	Additionally,
the 	original 	envelope was 	incorrectly 	addressed.
Pursuant to PERB Regulation 	32136,3 the Board may 	excuse 	a
late 	filing for good cause only. 	In previous decisions, 	the
Board has 	excused 	certain 	clerical 	errors 	where 	there was 	no
prejudice to the opposing party. 	In Trustees 	of 	the California
State University 	(1989) 	PERB Order No. 	Ad-192-H, 	the Board found
that 	the 	secretary's 	declaration that 	she 	had 	followed 	the 	normal
procedure 	in mailing the 	exceptions, 	but had failed to notice the
mailroom 	employee's 	error 	of 	incorrectly 	setting 	the 	postage
meter constituted good 	cause 	for excusing the 	late 	filing. 	In
The Regents 	of the University of California 	(Davis. 	Los Angeles.
Santa Barbara and San Diego) 	(1989) 	PERB Order No. 	Ad-202-H, 	the
Board 	found 	good 	cause 	to 	excuse 	the 	late 	filing based 	on the
fact 	that had the 	document 	been mailed by 	certified 	or 	express
mail 	on the 	same day 	it was 	mailed by regular 	first 	class 	mail,
it would have been accepted as 	timely. 	In an unrefuted
declaration, 	the 	attorney 	stated 	that the 	document was 	completed
and that 	he 	had 	instructed his 	secretary 	to 	mail 	the 	brief 	on the
following day. 	Since 	it was 	a policy of his 	office to 	file
documents with PERB by 	certified mail 	and his 	secretary had 	filed
3PERB Regulation 	32136 	provides:
A 	late 	filing may be 	excused 	in the
discretion of 	the Board 	for good 	cause only.
A 	late 	filing which 	has 	been 	excused 	becomes
a 	timely 	filing under 	these 	regulations.
in	
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many documents 	at PERB by certified mail, 	he believed that the
mailing would be 	accomplished 	by 	certified mail. 	Since 	this
explanation for the error was 	not 	implausible, 	and there was 	no
prejudice 	resulting 	from the deficiency 	in the 	filing, 	the 	Board
concluded that 	good 	cause 	existed 	for 	excusing 	the 	late 	filing.
In North Orange County Regional 	Occupational 	Program 	(1990) 	PERB
Decision No. 	807, 	the Board found that good cause was 	shown
because 	a timely filing was 	attempted, 	but went 	awry due 	to 	an
inadvertent error, 	and there was 	no prejudice to the opposing
party. 	In this 	case, 	the 	exceptions were mistakenly 	filed well
before the deadline but 	in the 	Los Angeles 	Regional 	Office 	rather
than the 	Headquarters 	Office 	as 	required by PERB 	Regulation
32300(a). 	Finally, 	in Los Angeles 	Unified School 	District 	(1991)
PERB Decision No. 	874, 	the Board excused a 	statement of
exceptions 	filed one day 	late 	for good cause. 	However, 	there 	is
no 	further explanation 	in the decision. 	The Board 	simply 	states
that 	it had the opportunity to 	consider both parties' 	arguments.
. . .
Despite these 	cases 	excusing clerical 	errors, 	the Board has
also 	determined 	that 	mail 	delays 	generally do 	not 	constitute
extraordinary circumstances 	to 	excuse a 	late 	filing. 	(See
Fontana Unified School District 	(1986) 	PERB Order No. 	Ad-157.)4
4This 	decision was 	decided under 	former PERB 	Regulation
32136 which provided 	that:
A 	late 	filing may be 	excused 	in the
discretion of 	the 	Board 	only under
extraordinary 	circumstances. 	A late 	filing
which has 	been excused becomes 	a 	timely
filing under these 	regulations.
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In Ventura Unified School District 	(1989) 	PERB Decision No. 	757,
the 	Board did not 	consider a 	response 	to 	an appeal which was 	sent
by regular mail 	on the 	last day of 	the 	filing period. 	Since 	no
reason 	for the 	late 	filing was 	provided, 	the Board did not
consider the response 	in rendering 	its 	decision.
In this 	case, 	even if the correct address was used, 	the
District 	sent 	its 	opposition by regular mail 	one day before 	the
opposition was due at PERB. 	In its appeal, 	the District asserts
that 	its 	opposition was 	timely mailed to PERB. 	Since the
opposition was 	sent 	from Los Angeles 	to 	Sacramento by regular
mail, 	it 	is 	extremely doubtful 	that the opposition would have
arrived the next day at PERB. 	Therefore, 	this 	case 	is 	similar to
PERB Decision No. 	757, 	wherein the Board did not consider an
opposition 	sent 	by 	regular mail 	which 	failed to 	arrive 	at 	PERB 	on
the last day set for filing. 	As 	in PERB Decision No. 	757, 	the
District did not 	submit 	an explanation for 	its 	mailing of 	its
opposition by regular mail. 	Instead, 	the District 	focused on its
typographical error on the envelope's 	address. 	Therefore, 	the
Board concludes 	that 	good 	cause does 	not 	exist 	to 	excuse 	the
District's 	late 	filing.5
5The 	fact 	that the 	Board does 	not 	excuse the 	District's 	late
filing of 	its 	opposition does 	not prejudice 	the 	District 	in 	light
of 	the Board's 	affirmance 	of 	the Regional 	Director's 	dismissal 	of
the public 	notice 	complaint.
77

II. 	WATTS' 	APPEAL OF PUBLIC NOTICE COMPLAINT
FACTUAL 	SUMMARY
The 	facts 	are 	accurately 	stated 	in the 	Regional 	Director's
administrative determination. 	However, 	we briefly 	summarize 	the
relevant 	facts here.
On October 24, 	1990, 	at a Board of Trustees' 	public meeting,
the 	District presented 	its 	response 	to 	the 	exclusive
representative's 	reopener proposal 	for 	the 	maintenance/operations
unit. 	The 	District proposal 	included a provision regarding 	the
contracting 	out 	of window washing 	and 	cafeteria work. 	On
November 	7, 	1990, 	the District again presented 	its 	initial
reopener proposals at a public meeting. 	At this meeting, 	public
comment was 	received. 	Watts 	spoke 	in opposition to the
proposals. 	At this 	Board meeting, 	one of the trustees 	raised the
question of 	the 	legality of 	contracting out. 	This 	same 	trustee
proposed 	that 	the 	contracting 	out proposal 	be 	tabled 	in order 	to
allow the Assistant General 	Counsel 	to determine the 	legality of
contracting out for services. 	On November 20, 	1990, 	the
Chancellor's 	Office 	issued a 	"Response 	to Trustee 	Inquiry" 	which
discussed the problems 	of 	contracting 	out 	the window washing 	and
cafeteria 	services.
At the December 	12, 	1990 public meeting, 	the District
amended 	its 	initial proposal 	and presented 	it on the 	agenda 	as 	an
action item. 	The proposal was 	listed 	as 	"District's 	initial
reopener proposal 	for the Maintenance/Operations 	Unit." 	Watts
spoke 	in opposition to 	this proposal 	under multiple 	agenda
8

matters. 	The minutes reflect that the District's 	initial
reopener proposal 	for the maintenance/operations 	unit, 	which was
initially presented for action, 	was withdrawn.
On January 	9, 	1991, 	the amended initial proposal was placed
on the agenda 	as 	"District's 	initial 	reopener proposal 	for the
Maintenance/Operations 	Unit." 	The 	agenda 	also provided a public
response 	to 	the District's 	initial 	reopener proposal 	for the
maintenance/operations 	unit. 	The public was 	afforded a 	full
opportunity to 	speak to 	this 	item. 	Watts 	spoke 	in opposition to
the amended initial proposal. 	After public 	comment, 	the District
adopted 	its 	amended 	initial proposal.
WATTS' APPEAL
In his 	19-page, 	single-spaced, 	handwritten appeal, 	Watts
discusses 	his 	disagreement with both 	the 	District's 	arguments 	and
Regional 	Director's 	administrative determination. 	The 	following
is 	a 	summary of his 	substantive 	exceptions:
1. 	Watts disagrees with the Regional 	Director's 	discussion
of 	Government Code 	section 	54954.2(a) 	regarding the 	72-hour
posting period. 	Watts 	argues 	this 	discussion is 	irrelevant 	and
ridiculous 	as 	this 	Government Code 	section 	is 	not within PERB's
jurisdiction.
2. 	When the Regional 	Director 	sent a 	letter to Watts
stating 	that 	his 	public 	notice 	complaint 	stated a prima 	facie
violation, 	Watts 	expected an opportunity to discuss 	the 	case with
her before the case was dismissed. 	Watts 	also objects 	to 	the
99

Regional 	Director's 	failure 	to review the tapes 	of 	the meetings
and reliance upon the misleading minutes.
3. 	With regard to the 	"Response to Trustee 	Inquiry," 	Watts
states he had no knowledge of this 	letter before reading about 	>
said 	letter 	in the administrative determination. 	Watts 	asserts
the document needed to be 	circulated to 	the parties 	in the 	case
before 	the 	answer to the public 	notice 	complaint.
4. 	In the collective bargaining agreement, 	there is 	a
provision for the public 	to 	respond to 	specific 	amendments 	for a
period of up to five minutes. 	However, 	Watts 	claims 	this 	limit
does 	not mention multiple agenda matters. 	Watts 	notes 	that at
the December 	12, 	1990 public meeting, 	he had to 	speak under the
multiple agenda matters. 	As Watts 	had to 	leave the December 	12,
1990 meeting before 	it was 	adjourned, 	he was not able to 	speak
under the public 	comment 	section at 	the 	end of 	the meeting.
- . . . 5. 	Watts 	argues 	that the 	initial 	reopener proposal was
changed 	to 	an 	amendment 	and 	should have been placed 	on 	the
January 	9, 	1991 	agenda as 	an amended proposal.
6. 	Watts disagrees with the District's 	statement that oral
notice 	is 	sufficient notice of 	future action, 	based on PERB
precedent.
7. 	Watts 	asserts 	that the Regional 	Director has 	not
understood the 	issue, 	and 	followed the District's point 	of 	view.
In particular, 	Watts 	argues 	that the District 	cannot amend an
initial proposal without 	first 	allowing 	for the 	amendment 	to 	go
through the proper process 	of 	sunshining the amendment. 	This
10

process 	includes three steps: 	(1) 	an informative; 	(2) 	public
comment; 	and 	(3) 	adoption of amendment. 	At the December 	12, 	1990
public meeting, 	Watts 	complains 	the amendment was withdrawn and
reappeared on the January 	9, 	1991 	agenda without public 	noticing
of 	the amendment.
8. 	Watts 	argues 	that the District violated the public
notice 	statute by 	(1) 	failing to 	sunshine the amendment before
the District was to take action on the amendment; 	and 	(2) 	failing
to give proper notice 	for the amendment. 	Watts 	asserts 	there was
no noticing of the amendment on the December 	12, 	1990 	agenda.
Watts 	asserts 	that 	the 	District 	should 	have 	indicated 	on 	the
December 	12, 	1990 	agenda that the proposal had been amended. 	At
the following public meeting on January 	9, 	1991, 	the District
should have 	scheduled public 	response 	and 	voted 	on 	the 	amended
proposal. 	In essence, 	Watts 	argues there was 	no attempt by the
District to 	sunshine the 	amended proposal.
DISCUSSION
The 	facts 	in the public 	notice 	complaint 	and District's
response 	indicate that Watts 	believes 	the 	District violated
section 	3547 when it amended 	its 	initial proposal 	and 	failed 	to
indicate 	on the 	agenda that 	the 	initial proposal 	had been
amended. 	Watts 	argues 	that 	the District 	failed 	to properly
notice the amended proposal. 	Specifically, 	Watts 	believes 	that
the proper public 	noticing process 	involves 	three 	steps: 	(1)
placing the 	item on the agenda as 	an informative; 	(2) 	receiving
public 	comment on the item; 	and 	(3) 	adopting the 	item.
11

While the agendas 	for the October 24, 	1990, 	November 7,
1990, 	December 	12, 	1990, 	and January 9, 	1991 public meetings list
the District's proposal 	as 	"District's 	Initial 	Reopener Proposal
for the Maintenance/Operations 	Unit," 	the public was 	put 	on
notice 	that 	the proposal 	had been amended by the 	attachments 	to
the December 	and January public 	meeting 	agendas. 	The 	attachments
designated the 	changes 	in the proposal by underlining any new
language. 	Further, 	there was public 	comment by Watts 	on the
initial 	and 	amended proposals 	before 	the 	District 	adopted 	the
amended proposal 	at 	the 	January public 	meeting.
PERB precedent 	establishes 	that 	section 3547 	does 	not
prescribe 	an 	exact 	order 	for 	the presentation and 	adoption 	of
proposals. 	In Los Angeles 	Community College District 	(1984) 	PERB
Decision No. 	455, 	the Board found that the public 	notice 	statutes
do not 	specify 	five 	separate 	and distinct 	steps 	in order to
comply with the public 	notice provisions. 	The 	Board's 	decision
in Los Angeles Community College District 	(1984) 	PERB Decision
No. 	385 provides 	that the 	section 3547 mandate is 	amply 	satisfied
if a time 	for comment is provided prior to the 	commencement 	of
negotiations. 	Finally, 	in Los Angeles Unified School District
(1990) 	PERB Decision No. 	832, 	the Board found that the form in
which an 	initial proposal 	is 	brought 	to public 	attention 	is
relevant only 	insofar as 	it must allow time 	for adequate public
comment. 	(See Los Angeles 	Unified School District 	(1983) 	PERB
Decision No. 	335.)
12

Here, 	the amended 	initial proposal was 	listed as 	an initial
proposal at the December 	12, 	1990 public meeting, 	but was
withdrawn. 	This 	amended proposal 	reappeared on the January 	9,
1991 	agenda as 	an initial proposal. 	Even though the agenda did
not 	indicate that the 	initial proposal had been amended, 	the
public had notice of 	the 	changes 	in the attachments. 	Therefore,
the public 	had 	an opportunity 	to 	comment 	on the 	amended proposal.
With regard to Watts' 	substantive exceptions, 	only one has
merit. 	Watts' 	exception to the Regional Director's 	reference to
the 	72-hour posting period 	in Government 	Code 	section 	54954.2(a)
has merit. 	In determining what 	constitutes 	"reasonable time,"
the 	Board does 	not 	have 	a 	specific 	formula or time period.
Rather, 	the Board examines 	each case based on the 	facts. 	(See
San Francisco Community College 	District 	(1979) 	PERB 	Decision No.
105.) 	In Los Angeles 	Unified School District 	(1990) 	PERB
Decision No. 	852, 	the Board found there was 	reasonable time 	for
public 	comment where 	two weeks were 	allowed 	for public 	comment.
In Los Angeles Community College District, 	supra,- PERB Decision
No. 	455, 	the Board found that one month was 	a reasonable time 	for
public 	comment. 	However, 	the Board also 	stated that an employer
is 	not precluded 	from adopting a proposal 	at the 	same meeting as
long as there 	is public 	comment.
In the present case, 	the amended 	initial proposal was
included with the attachments 	to the December 	12, 	1990 meeting.
The 	same 	amended proposal 	and 	its 	attachments were 	again on the
agenda for the January 9, 	1991 public meeting. 	Therefore, 	there
13

appears 	to have 	been approximately 	one 	month 	allowed 	for public
comment 	on the amended 	initial proposal. 	Based on PERB
precedent, 	the Board 	finds 	that a reasonable time 	elapsed after
the 	notice of 	the 	amended 	initial proposal 	and public 	comment.
With regard to Watts' 	exceptions 	regarding the District's
five minute rule, 	the Board has 	held that both a 	five minute 	rule
and 	three minute 	rule provided 	adequate 	time 	for public 	comment.
(See Los Angeles Unified School 	District 	(1981) 	PERB Decision No.
181; 	Los Angeles Community College District 	(1980) 	PERB Order No.
Ad-91.) 	Accordingly, 	this exception has no merit.
Watts 	also 	complains 	that 	after 	sending a 	letter 	stating the
public 	notice 	complaint 	stated 	a prima 	facie violation and
requesting the District's 	response, 	the Regional 	Director
dismissed 	the 	case without 	first 	discussing 	the 	case with Watts
or 	scheduling an informal 	conference. 	However, 	the Board has
held that the dismissal 	of 	a public 	notice 	complaint 	after 	an
answer 	is 	filed or 	informal 	conference 	is 	held does 	not
constitute reversible 	error 	in the 	absence of 	a 	showing that 	the
complaint alleged a prima 	facie violation. 	(See Los Angeles
Community College District 	(1980) 	PERB Decision No. 	153; 	Los
Angeles 	Community College District 	(1983) 	PERB Decision No. 	331.)
Therefore, 	the 	fact that the Regional 	Director dismissed the
public 	notice 	complaint 	after 	initially 	finding 	a prima 	facie
violation does 	not 	constitute grounds 	for granting Watts' 	appeal.
Watts 	must 	also 	demonstrate 	that 	the public 	notice 	complaint
alleged 	a prima 	facie violation. 	As 	the 	Board agrees with 	the
14

Regional 	Director's 	administrative 	determination dismissing 	the
public notice complaint, 	this 	exception has no merit.
Watts 	also disagrees with the 	District's 	statement 	that 	oral
notice of 	further action is 	sufficient. 	However, 	in Los Angeles
City and County School Employees Union. 	Local 	99. 	Service
Employees 	International Union. 	AFL-CIO 	(1985) 	PERB Decision
No. 	490, 	the Board found that 	section 3547 does 	not require 	all
initial proposals 	to be 	in written form. 	The Board held that 	an
oral presentation 	satisfied the public 	notice 	requirements. 	In
particular, 	the Board found that the District's 	oral
clarification of 	an initial proposal 	satisfied the public 	notice
requirements. 	Therefore, 	even if the District orally noticed the
amended 	initial proposal, 	the requirements 	of 	section 	3547 	are
still 	satisfied.
Finally, 	Watts' 	exception regarding the 	"Response to Trustee
Inquiry" 	has 	no merit. 	Watts 	states he had no knowledge of 	this
letter before reading about 	said 	letter 	in the 	administrative
determination. 	Watts 	argues 	that 	the document must be 	circulated
to 	the parties 	before the answer to 	the public 	notice 	complaint.
As this document was available, 	upon request, 	for review by the
public, 	Watts 	could have obtained a copy of 	this 	document.
Accordingly, 	this 	exception has no merit.
With the 	exception of 	the Regional 	Director's 	reference 	to
the 	72-hour posting period 	in Government Code 	section 	54954.2(a),
the 	Board affirms 	the administrative determination. 	The
15

1 -
remaining 	exceptions 	are 	rejected 	as 	either nonprejudicial 	or
without merit.
ORDER
The District's 	appeal 	of 	the Board's 	rejection of 	its
untimely filed opposition is 	hereby DENIED. 	Further, 	the
complaint 	in Case No. 	LA-PN-116 	is 	hereby DISMISSED WITHOUT LEAVE
TO AMEND.
Members 	Shank and 	Camilli 	joined 	in this 	Decision.
16

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
HOWARD WATTS,
Complainant,
v.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
)
) 	Case No. LA-PN-116
(LA-R-1C)
ADMINISTRATIVE
DETERMINATION
(April 24, 	1991)
)
)
)
)
)
)
This 	administrative determination dismisses 	a public 	notice
complaint 	filed by Mr. 	Howard Watts 	(hereinafter Complainant)
against the Los Angeles 	Community College District 	(District)
alleging a violation of section 3547(a) 	and 	(b)1 of the
Educational Employment Relations Act 	(EERA).2
1 Government Code Section 3547 provides 	in pertinent part:
i
(a) 	All initial proposals of exclusive
representatives and of public 	school
employers, which relate to matters within the
scope of representation, 	shall be presented
at a public meeting of the public 	school
employer and thereafter shall be public
records.
(b) 	Meeting and negotiating shall not take
place on any proposal until a reasonable time
has 	elapsed after the 	submission of the
proposal to enable the public to become
informed and the public has the opportunity
to express 	itself regarding the proposal at a
meeting of the public 	school employer.
(c) 	After the public has had the opportunity
to express 	itself, 	the public 	school employer
shall, 	at a meeting which is open to the
public, 	adopt its initial proposal.
2 The EERA is 	codified at Government Code section 3540 	et
seq. 	All statutory references are to the Government Code unless
otherwise 	noted.
)
)
)
_____________ )
•

BACKGROUND
On January 4, 	1991, 	Howard Watts 	filed a public 	notice
complaint 	pursuant 	to 	the 	Public 	Employment 	Relations 	Board
(PERB) 	regulation 329103 in the Los Angeles 	Region of PERB. 	The
complaint 	alleges 	the 	District violated 	section 	3547(a) 	and 	(b)
of 	the 	EERA by 	"not presenting 	an amendment 	[to 	an 	initial
proposal] 	to 	the public 	before they 	adopted 	their 	initial
reopener proposal." 	The 	essence of 	the 	complaint 	is 	that 	the
District 	amended 	its 	initial proposals, 	and 	then adopted the
amendment 	without 	allowing 	public 	comment 	on 	the 	amendment.
On February 25, 	1991, 	the District was 	requested to 	file
with PERB 	a written answer to the 	complaint. 	The 	District
responded on March 22, 	1991.
The 	factual 	assertions 	of 	the 	complaint 	and 	the 	District's
response are as 	follows. 	On October 24, 	1990, 	at a Board of
i
3 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations Title 8, 	section 31001, 	et.seq. 	PERB regulation
32910 	states 	in part:
2910. 	Filing of EERA 	. 	. 	. 	Complaint. 	A
complaint 	alleging 	that 	an 	employer 	or 	an
exclusive 	representative 	has 	failed 	to 	comply
with Government Code sections 3547 	. 	. 	. 	may
be 	filed 	in the regional 	office. 	An EERA
complaint 	may be 	filed 	by 	an 	individual who
is 	a 	resident of the 	school 	district 	involved
in the 	complaint or who 	is 	the parent 	or
guardian of 	a 	student 	in the 	school 	district
or 	is 	an adult 	student 	in the district. 	The
complaint 	shall be 	filed no 	later 	than 	30
days 	subsequent 	to the date when conduct
alleged 	to be a violation was 	known or
reasonably could have been discovered. 	. 	. 	.
22

Trustee's public meeting, 	the District presented its response to
Local 	99-SEIU's 	reopener proposal 	for 	the 	Operations/Support
unit. 	The District's proposal 	included 	the following 	language:
Article 	4 Management Rights
4.3 	The District 	shall 	not 	contract out work
which is 	exclusively performed by
classifications which are part of 	the
Maintenance and Operations 	Unit as 	of
the execution of this Agreement, 	pood
services 	(employee 	and 	student
cafeterias) 	shall be 	excluded 	from this
prohibition.
18.5.3 	Notwithstanding 	the 	provisions 	of
Article 4. 	Management Rights.
Section-4.3. 	if a sufficient number
of custodial employees have not
been trained 	in window washing, or
when there 	is 	not a 	sufficient
number of 'Custodial 	employees 	to
accomplish both 	routine daily
operations and to wash windows. 	the
District 	shall 	be 	authorized to
c;ontract 	out 	for window washing
services.
*
contract
On November 7, 	1990, 	the District again presented its
initial proposals. 	Public comment was taken. 	Complainant spoke
in opposition to the proposals. 	At that Board meeting, 	one of
the Trustees 	raised the question of 	the 	legality of 	contracting
out. 	The initial proposals were tabled pending legal 	counsel
review. 	That review was issued on November 20, 	1990, 	in a
Chancellor Communication entitled 	"Response to 	Trustee 	Inquiry".4
4 Exhibit 4 	of the District's 	response was 	a copy of the
District's Chancellor Communication prepared by James 	R. 	Lynch,
Assistant General Counsel, 	entitled Response to Trustee Inquiry,
and dated November 20, 	1990. 	Further, 	according to Mr. 	Lynch,
non-confidential Chancellor Communications are, 	upon request,
3
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
3

a result 	of 	this 	legal opinion 	from the 	District's 	General
Counsel, 	the 	District 	amended 	its 	initial proposal 	and presented
it as 	an action item on the December 	12, 	1990, 	Board agenda.
The 	District's 	proposal 	now read:
18.5.3 	The 	District 	and 	the 	Onion 	shall
negotiate 	solutions 	to the problems
of window washing 	and 	cafeteria
services.
Public 	comment was 	scheduled5 and held. 	The 	Complainant 	and
others 	spoke 	to the amendment. 	The Action 	item on the 	initial
proposal was withdrawn6 and 	the 	item was 	placed on 	the 	agenda 	for
the 	next 	Board 	meeting.
On January 	9, 	1991, 	the entire amended initial proposal was
on 	the 	agenda.7 The public was 	afforded 	full 	opportunity to
speak to 	the 	item.* 	Mr. 	Watts 	spoke 	in opposition to the
proposed amendment. 	After public 	comment, 	the District adopted
their amended 	initial 	proposal.9
available 	for 	review by 	the public.
5 Exhibit 	5 of the District's 	response was Agenda, 	Order of
Business, 	Regular Meeting, 	December 	12, 	1990. 	See 	item number 	12
of 	that 	agenda.
6 See pg.12 	of the December 	12, 	1990, 	minutes 	of the Board
Meeting 	submitted as 	Exhibit 	6 	in the 	District's 	response.
7 See Exhibit 7, 	pg. 	2 	of the District's 	response.
8 The minutes 	of 	all 	these board meetings, 	as provided by
the District 	in their response, 	indicate that Mr. 	Watts 	spoke 	in
opposition to both the 	initial proposal 	and to 	the 	amended
initial proposal. 	Both Mr. 	Watts 	and Jules 	Kimmett 	spoke to the
amended 	initial proposal 	on January 	9, 	prior to 	action taken by
the 	Board to 	adopt 	the 	amended 	initial proposal.
9 See pg.8 	of the minutes 	of 	January 	9, 	1991, 	Board Meeting
submitted as 	Exhibit 	8 	in the District's 	response.
•
4

DISCUSSION
Complainant did 	not 	allege 	any 	facts 	to 	indicate 	that
meeting 	and 	negotiating 	occurred with 	the 	exclusive
representative prior 	to 	the 	District's 	adoption of 	the 	amended
initial proposal, 	or prior to the two meetings 	at which public
comment was 	heard. 	The 	Complainant 	also 	did 	not 	allege 	any 	other
facts which would 	support 	a 	finding 	of 	a 	violation of 	section
3547(b). 	Palo Alto Unified School District 	(Fein) 	(1981) 	PERB
Decision No. 	184.
In Los Angeles 	Unified School District 	(Kimmett) 	(1979) 	PERB
Order No. 	Ad-53, 	PERB noted that the intent of 	section 3547 	as
stated by the Legislature 	in section 3547 	is 	that:
. 	. 	. 	the public be informed of the issues
that 	are 	being 	negotiated upon and have 	full
opportunity to 	express 	their view on the
issues 	to the public 	school 	employer, 	and to
know of 	the positions 	of 	their 	elected
representatives.
The 	Complainant 	argues 	that 	the 	District 	" . . . 	failed 	to
provide 	a 	reasonable 	time 	thereafter 	[presenting 	their 	initial
proposals] 	to 	enable the public 	to become 	informed and have 	an
opportunity to 	express 	itself regarding 	such 	[initial] 	proposals
at a meeting 	of the 	District." 	He 	cites 	Los 	Angeles 	Community
College District 	(Kimmett! 	(1981) 	PERB Decision No. 	15810 as his
10 In Los 	Angeles 	Community College 	District 	(Kimmett.)
(1981) 	PERB Decision No. 	158, 	the District was ordered by the
Board 	to Cease 	and 	Desist 	from:
Failing 	to present 	at a public 	meeting 	any 	initial
proposal 	or any 	amendment to 	an 	existing 	agreement
constituting 	an 	initial 	proposal 	and 	from 	failing 	to
provide 	a reasonable time 	thereafter to 	enable 	the
55

authority, 	and 	requests 	PERB 	to 	issue 	a 	cease and desist 	order
against 	the 	District.
Based on the 	facts 	alleged 	in the 	complaint, 	and 	in the
District's 	response, 	the District presented the 	initial proposals
at 	a public 	meeting 	in October 	1990, 	took comments 	at both that
meeting 	and at 	the 	following public 	meeting. 	No 	action was 	taken
to 	adopt 	the 	initial proposal. 	The District then determined 	that
their 	initial proposal needed to be amended, 	and presented the
amended 	initial proposal at the December 	12, 	1990, 	Board meeting.
The 	Complainant has 	argued that the 	Board of 	Trustees 	took
action on the amended 	initial proposal 	at the 	December 	12, 	1990,
meeting. 	The exhibits 	in the District's 	response, 	however,
indicate 	that the 	action 	item was withdrawn at 	the 	December
meeting 	(see Exhibit 6, 	pg. 	12). 	Even if the District's original
intent 	had been to 	take 	action on the 	amended 	initial proposal 	at
the 	December meeting, 	it did not. 	Instead the District placed
the 	amended 	initial 	proposal 	on the 	agenda 	for the 	January 	9,
1991, 	Board meeting as an action item. 	Public 	comment was held
at both 	meetings 	prior to adopting 	the action 	item at 	the 	January
meeting. 	The minutes 	of 	these meetings 	reflect 	that the
Complainant 	spoke 	in opposition to 	the proposal 	at 	both meetings.
The Legislature has 	determined that 	72 	hours 	is 	a 	sufficient
notice 	period 	for 	the 	public 	to 	read and 	respond to 	the 	agenda 	of
a 	regular Board of 	Trustees 	meeting.
public 	to 	become 	informed 	and have 	an opportunity 	to
express 	itself 	regarding 	such a proposal 	at 	a 	meeting
of 	the 	District.
•
•
6

(Government Code 	section 	54954.2(a).)11 Further, 	the 	District
argued 	that 	"regular 	District 	board meeting 	agendas 	routinely
have 	complex 	action 	items 	unrelated to 	collective 	bargaining
issues. 	No reasonable argument has been presented by Mr. 	Watts
as 	to why 	a 	reasonable 	notice period 	for reopener proposals 	must
exceed 	the 	72 	hours 	required for other complex 	issues." 	PERB has
stated:
. 	. 	. 	[T]he statute provides an elastic time
frame precisely because what 	is 	"reasonable
time" 	varies 	according to the 	circumstances
surrounding negotiations. 	. 	. 	.
San 	Francisco 	Community 	College 	District
(1979) 	PERB Decision Mo. 	105.
The 	District met the 	intent of 	section 	3547 	by 	sunshining
their 	amended 	initial proposal 	at two public 	meetings 	and
allowing public 	comment. 	Therefore, 	we 	can 	find no violation of
section 	3547(a) 	and 	(b) 	of EERA. 	(Los Angeles 	Community College
District 	(1984) 	PERB Decision No. 	411; 	Los Angeles Community
College District 	(1980) PERB Order No. 	Ad-91). 	Hence, 	no
violation of 	section 	3547 	occurred.
11 Government Code 	section 	54954.2 	states 	in part:
(a) 	At least 72 hours before a regular
meeting, 	the legislative body of the 	local
agency, 	or its designee, 	shall post an agenda
containing a brief general 	description of
each 	item of business 	to be 	transacted or
discussed at the meeting. 	The 	agenda 	shall
specify the 	time and 	location of 	the 	regular
meeting 	and 	shall be posted 	in a 	location
that 	is 	freely accessible to members 	of 	the
public. 	No action shall be taken on any 	item
not 	appearing 	on the posted 	agenda.
7
•

CONCLUSION
For the reasons discussed above, 	this complaint is DISMISSED
for failure to state a violation of section 3547.12
Right to Appeal,
Pursuant to Public Employment Relations 	Board regulations,
any party adversely affected by this ruling may appeal to the
Board itself by filing a written appeal within twenty 	(20)
calendar days after service of this ruling 	(Cal. Admin. 	Code,
tit. 	8, 	sec. 	32925). 	To be timely filed, 	the original and five
copies of 	such appeal must be actually received by the Board
itself before the close of business 	(5:00 p.m.) 	or sent by
telegraph, 	certified or Express United States mail postmarked no
later than the last date set for filing 	(Cal. Admin. 	Code,
tit. 	8, 	sec. 	32135). 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Members, 	Public Employment Relations Board
1031 	18th Street
Sacramento, CA 95814
The appeal must state the specific issues of procedure, 	fact, 	law
or rationale that are appealed, 	must clearly and concisely 	state
12 PERB Regulation 32920(b)(8) 	states:
The Board Agent shall 	[d]ismiss any complaint
which, 	after investigation, 	is determined to
fail to state a prima facie allegation or
which is not supported by sufficient facts to
comprise a violation of Government Code
sections 3547 or 3595. 	Any such dismissal is
appealable to the Board itself pursuant to
section 32925 of these regulations; 	. 	. 	.
8
- .. .

the grounds 	for each 	issue 	stated, 	and must be 	signed by the
appealing party or 	its 	agent.
If 	a 	timely appeal of 	this 	ruling 	is 	filed, 	any other party
may 	file with the 	Board 	itself 	an original 	and 	five 	copies 	of 	a
statement 	in opposition within 	twenty 	calendar days 	following 	the
date of service of the appeal 	(Cal. 	Admin. 	Code, 	tit. 	8,
sec. 	32625). 	If no timely appeal 	is 	filed, 	the aforementioned
ruling 	shall 	become 	final upon the 	expiration of 	the 	specified
time 	limits.
Service
All 	documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all parties 	to 	the proceeding 	and the Los Angeles
Regional 	Office. 	A 	"proof of 	service" 	must 	accompany 	each copy
of 	a 	document 	served upon a party 	or 	filed with the 	Board 	itself.
(See Cal. 	Admin. 	Code, 	tit. 	8, 	sec. 	32140 for the required
contents 	and a 	sample 	form.) 	The 	appeal 	and any opposition to 	an
appeal will be 	considered properly 	"served" 	when personally
delivered 	or deposited 	in the 	first-class 	mail postage paid 	and
properly 	addressed.
Extension 	of 	Time
A request 	for an 	extension of 	time 	in which to 	file 	an
appeal 	or opposition to an appeal with the 	Board 	itself must be
in writing 	and 	filed with the 	Board 	at 	the previously 	noted
address. 	A request 	for an extension must be 	filed at 	least 	three
calendar days 	before 	the 	expiration of 	the 	time required 	for
filing 	the document.
9

The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of the request upon each party
(California Administrative Code, title 8, 	section 32132).
C a r o l 	L. 	KARJALA 	D a t e
Regional Director
1