California State University (California Faculty Association) (PERB 1010H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA STATE UNIVERSITY,
Respondent.
)
)
) 	Case No. 	LA-CE-365-H
PERB Decision No. 	1010-H
September 	2, 	1993
)
)
)
)
)
)
Appearances: 	Edward R. 	Purcell, 	Labor Consultant, 	for California
Faculty Association; 	William G. 	Knight, 	Assistant General
Counsel, 	for California State University.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	California
Faculty Association 	(CFA) 	of a Board agent's partial 	dismissal,
attached hereto, 	of 	its 	unfair practice 	charge 	alleging 	that
the 	California State University violated section 3571(e) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).1
The 	Board has 	reviewed the 	entire 	record in this 	case.
Finding 	the 	Board agent's 	warning and dismissal 	letters 	to be
1HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
HEERA section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
(e) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3590).
________________ )

free of prejudicial 	error, 	the Board adopts 	them as 	the decision
of 	the Board 	itself.
The 	Board hereby AFFIRMS 	the 	Board agent's 	partial 	dismissal
in Case No. 	LA-CE-365-H.
Members 	Caffrey and Garcia 	joined 	in 	this 	Decision.
N
2

OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PERB
May 24, 	1993
Edward R. 	Purcell, 	Labor Consultant
California 	Faculty 	Association
5933 W. 	Century Boulevard, 	Suite 216
Los Angeles, 	CA 90045
Re: 	NOTICE OF PARTIAL DISMISSAL
California 	Faculty Association v. 	Trustees 	of 	the 	California
State University; 	Unfair Practice Charge No. 	LA-CE-365-H
(First 	Amended 	Charge)
Dear Mr. 	Purcell:
I 	indicated to you, 	in my attached letter dated May 11, 	1993,
that 	certain allegations 	contained 	in 	the 	charge 	did not 	state 	a
prima facie case. 	You were advised that, 	if 	there were any
factual 	inaccuracies 	or additional 	facts which would correct 	the
deficiencies 	explained 	in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended these
allegations 	to 	state 	a prima 	facie 	case 	or withdrew them prior 	to
May 21, 	1993, 	the allegations would be dismissed.
I 	have 	not 	received 	either an amended charge 	or a 	request 	for
withdrawal. 	Therefore, 	I am dismissing those allegations which
fail 	to state 	a prima 	facie 	case based on the 	facts 	and 	reasons
contained 	in my May 11, 	1993 	letter.
Right 	to Appeal
Pursuant 	to Public Employment Relations Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in 	the 	charge by 	filing an appeal 	to 	the 	Board 	itself
within 	twenty 	(20) 	calendar days 	after service of 	this 	dismissal.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32635(a).) 	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 p.m.) 	or sent by telegraph, 	certified or Express United States
mail 	postmarked no 	later 	than 	the 	last 	date 	set 	for 	filing.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135.) 	Code of Civil
Procedure 	section 1013 	shall 	apply. 	The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814

LA-CE-365-H
May 24, 	1993
Page 2
If you 	file a timely appeal 	of 	the 	refusal 	to issue a 	complaint,
any 	other party may 	file with 	the 	Board an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy of 	a document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample 	form.) 	The
document 	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 a document
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 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for filing 	the 	document.
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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By i.
Regional 	Director
Attachment
cc: 	William G. 	Knight

STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 11, 	1993
Edward R. 	Purcell, 	Labor Consultant
California 	Faculty Association
5933 W. 	Century Boulevard, 	Suite 216
Los Angeles, 	CA 9 0045
Re: 	WARNING LETTER
California 	Faculty Association v. 	Trustees 	of 	the 	California
State University; 	Unfair Practice Charge No. 	LA-CE-365-H
(First Amended 	Charge)
Dear Mr. 	Purcell:
The 	above-referenced unfair practice 	charge was 	filed by 	the
California Faculty Association 	(CFA) 	with the Los Angeles
Regional 	Office 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	on March 10, 	1993. 	The First Amended Charge was 	filed on
April 2, 	1993. 	As amended, 	the charge alleges 	that the Trustees
of 	the 	California State University 	(CSU) 	violated Government 	Code
section 3571(e) 	by its untimely request 	for factfinding, 	and
violated section 3571(b), 	(c) 	and 	(e) 	by its unilateral
implementation of a Family Care Leave 	Policy. 	This 	letter
addresses 	only the 	allegation concerning 	the 	request 	for
factfinding.
Investigation of 	the 	charge revealed the 	following 	facts. 	CFA is
the exclusive representative of CSU's Unit 	3 	- 	Faculty. 	In 1991,
certain counselor positions were 	transferred 	from Unit 	4 	-
Academic Support 	into Unit 	3. 	In April 	1992, 	CFA and CSU began
negotiating revisions 	to 	the Unit 	3 	contract 	applicable 	to 	these
employees. 	The parties 	reached an 	initial 	impasse 	in these
negotiations, 	and PERB appointed a mediator 	for 	the 	dispute 	on or
about August 24, 	1992.1
On or about October 15, 	1992, 	the mediator certified the 	issues
in dispute as 	appropriate 	for 	factfinding. 	The parties 	held 	one
additional bargaining session, 	on December 2, 	1992, 	but no
agreement was 	reached. 	On December 7, 	1992, 	CFA sent a 	letter to
CSU 	stating 	that 	CFA did not 	believe 	factfinding 	was 	necessary
and that 	CFA would not 	request 	factfinding. 	The December 	7
letter 	further 	indicated CFA would 	assume 	CSU was 	waiving 	its
right 	to 	request 	factfinding unless 	a 	request was made 	by
December 20, 	1992. 	By letter dated December 15, 	1992, 	CSU
P1 ERB	PERB 	Case No. 	LA-M-2322-H.

Warning 	Letter
LA-CE-365-H
Page 2
informed 	CFA 	that 	it 	still 	desired 	to 	reach agreement 	on 	the
outstanding 	issues but 	was 	not waiving 	its 	right 	to 	request
factfinding. 	CFA responded by letter of December 17, 	1992,
indicating 	they would honor 	a 	factfinding 	request 	if made 	by
January 7, 	1993, 	but would assume CSU was waiving its 	right 	to
request 	factfinding 	if 	it 	did not 	do 	so by 	that 	date. 	By letter
dated December 24, 	1992, 	CSU reiterated its position that 	it
would not 	waive 	the 	right 	to 	later request 	factfinding.
On January 21, 	1993, 	CFA sent a letter to CSU expressing its
belief 	that 	the 	statutory 	impasse 	procedures 	had been 	exhausted,
and that 	the Employer's 	last, 	best offer was 	in effect. 	On
January 27, 	1993, 	CSU sent a letter to CFA and PERB requesting
factfinding 	in 	the 	dispute.2 CFA communicated 	its 	opposition 	to
the request by letter to 	PERB dated February 1, 	1993. 	CFA's
basis 	for 	opposition was 	further 	communicated by 	letter dated
February 2, 	1993. 	On February 2, 	1993, 	PERB advised CFA that 	the
factfinding 	request 	had been accepted and 	that 	a 	letter had been
issued 	concerning 	selection 	of 	a 	chairperson 	for 	the 	factfinding
panel. 	On February 6, 	1993, 	CFA submitted a letter to the Board
attempting 	to appeal 	the 	decision to approve 	the 	factfinding
request. 	By letter dated February 24, 	1993, 	PERB advised CFA
that 	the 	February 	6 	letter 	could not 	be 	accepted as 	an
administrative 	appeal.
Analysis
Impasse 	procedures 	under 	the 	Higher 	Education Employer-Employee
Relations Act 	(HEERA)3 are 	set 	forth at 	sections 	3590 	through
3594. 	Section 3591 provides 	in pertinent part:
If 	the mediator 	is unable 	to effect
settlement 	of 	the 	controversy within 	15 	days
after his 	appointment 	and 	the mediator
declares 	that 	factfinding 	is 	appropriate 	to
the 	resolution of 	the 	impasse, 	either party
may, 	by written notification 	to 	the 	other,
request 	that 	their differences 	be 	submitted
to a 	factfinding panel. 	Within five days
after receipt of 	the written request, 	each
party 	shall 	select 	a person 	to 	serve as 	its
member of 	the 	factfinding panel. 	The board
shall, 	within five days after such selection,
2PERB Case No. 	LA-F-457-H.
3HEERA is 	found at Government 	Code 	section 	3560 	et 	seq. 	All
statutory 	references 	herein are 	to 	the Government 	Code.

Warning 	Letter
LA-CE-365-H
Page 	3
select 	a 	chairman 	of 	the 	factfinding panel.
(Emphasis 	added.)
In 	order 	to 	implement 	and 	carry 	out 	its 	responsibilities
concerning 	factfinding, 	PERB 	has 	adopted 	regulations,4 including
the 	following:
32797. 	Appointment 	of 	a 	Factfinder
Under 	EERA and 	HEERA. 	Not 	sooner 	than 	15 	days
after 	the 	appointment 	of 	a 	mediator by 	the
Board, 	or 	not 	sooner 	than 	15 	days 	after 	the
parties 	have 	attempted 	to 	resolve 	their
dispute 	through 	a 	mediation 	procedure 	on
which 	they 	have 	mutually 	agreed, 	the 	Board
shall 	appoint 	a 	person 	to 	chair 	a 	factfinding
panel, 	if:
(a) 	The mediator has 	filed a
written 	declaration 	that
factfinding 	is 	appropriate 	to 	the
resolution 	of 	the 	dispute 	with 	the
regional 	office, 	and
(b) 	Either party has 	requested, 	by
written 	notification 	to 	the 	other,
that 	their 	differences 	be 	submitted
to 	a 	factfinding 	panel. 	A 	copy 	of
the 	written 	request 	shall 	be 	filed
with 	the 	regional 	office.
(Emphasis 	added.)
Thus, 	HEERA and 	PERB 	regulations 	set 	forth 	two 	conditions 	for 	the
initiation 	of 	factfinding: 	(1) 	a 	declaration by 	the mediator 	that
factfinding 	is 	appropriate 	to 	the 	resolution 	of 	a 	dispute, 	and
(2) 	the 	request 	of 	either party 	for 	the 	dispute 	to 	proceed 	to
factfinding. 	Pursuant 	to 	HEERA and 	PERB 	regulation 	32798,5 PERB
4 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	et 	seq.
5 32798. 	Appointment 	of 	Person 	to 	Chair 	Factfinding
Panel 	Under 	EERA and 	HEERA. 	The 	Board may 	appoint 	the 	person 	on
whom 	the 	parties 	mutually 	agree 	or 	provide 	a 	list 	containing 	an
odd 	number 	of 	names 	to 	the 	parties, 	from which 	the 	parties 	may
select 	the 	person 	who 	shall 	be 	appointed by 	the 	Board. 	If 	the
parties 	are 	unable 	to 	mutually 	agree 	upon 	a 	person 	to 	chair 	the
factfinding 	panel, 	the 	Board 	shall 	select 	and appoint 	the
chairperson.

Warning 	Letter
LA-CE-365-H
Page 4
must 	appoint 	a 	factfinding panel 	chairperson within 	10 	days 	of
the 	time 	it 	is 	in receipt 	of both a 	factfinding 	request 	and 	the
mediator's 	certification, 	unless 	the parties have 	otherwise
agreed. 	HEERA specifies 	a minimum amount 	of 	time 	(15 	days) 	which
must 	toll 	after 	the 	parties 	reach an 	initial 	impasse 	and before
factfinding may be 	requested, 	but 	is 	otherwise 	silent 	on the
question of 	timing 	of 	a 	factfinding 	request.
Your position 	relies 	primarily 	on application of 	the 	reasoning
found in Oak Grove Union School District 	(1984) 	PERB Decision No.
HO-U-205 	(Oak Grove), 	a non-precedential decision. 	However, 	even
were 	this 	decision precedential, 	the 	facts 	of 	the 	instant 	case
are 	significantly different 	than 	those 	considered by 	the 	hearing
officer in Oak Grove. 	In Oak Grove, 	unlike this 	case, 	the
assigned mediator had declined 	to 	certify 	the 	dispute 	as
appropriate for factfinding. 	Also, 	in Oak Grove, 	the party to
the dispute 	(the exclusive 	representative) 	who eventually
requested 	factfinding had at 	an 	earlier 	time 	expressed a belief
that 	factfinding would be useless, 	and it was on this basis 	--
not 	the time delay 	- - 	that 	the hearing officer ruled that 	the
exclusive 	representative 	had waived 	its 	right 	to 	request
factfinding.
Support 	for your position 	is 	also not 	found 	in Modesto City
Schools 	(1983) 	PERB Decision No. 	291. 	In that decision, 	the 	.
Board 	expressly held 	that 	the 	statutory 	impasse procedures 	are
exhausted 	only when 	factfinding has 	been 	conducted, 	a 	report
issued and parties' 	consideration of 	the 	report 	"provides 	no
basis 	for 	settlement 	or movement 	that 	could lead 	to 	settlement."
(Id.)
Finally, 	the 	assertion that 	CSU's 	conduct 	should be 	construed as
constituting a waiver 	of 	its 	statutory 	right 	to 	request
factfinding^ is 	contrary to both the 	facts 	of 	the 	case and Board
precedent. 	CSU expressly 	reserved 	its 	right 	to request
factfinding in its 	letters 	of December 15 	and 24, 	1992. 	CFA's
assertion 	of 	an 	implied waiver because 	deadlines 	unilaterally 	set
6The 	evidence 	of 	CSU conduct which, 	according to CFA,
demonstrates 	a waiver by 	inaction, 	consists 	entirely of 	the 	time
which 	lapsed between 	the mediator's 	letter 	of 	certification and
the 	request 	later made 	for 	factfinding, 	plus 	the 	lack of 	action
by 	the 	deadlines 	imposed by CFA. 	The 	record, 	which reflects 	that
a bargaining session was 	held on December 2, 	1992 	and 	that 	a
request 	for factfinding was made on January 27, 	1993, 	simply does
not 	support 	this 	assertion.

Warning 	Letter
LA-CE-365-H
Page 5
by CFA were 	not met 	cannot 	override 	this 	evidence. 	Even without
CSU's 	express 	reserving of 	its 	rights, 	a waiver would not 	have
been as 	readily 	inferred 	from the 	facts 	of 	this 	case 	as 	CFA would
assert. 	As 	noted 	in San Francisco 	Community College District
(1979) 	PERB Decision No. 	105, 	the Board
will 	not 	readily 	infer 	that 	a party has
waived its right under 	[the Act]; 	we will
find a waiver only when there 	is 	an
intentional 	relinquishment 	of 	these 	rights,
expressed 	in 	clear and unmistakable 	terms,
(p. 	17; 	footnotes omitted.)
Conclusion
For 	these 	reasons 	the 	allegation 	that 	CSU violated Government
Code 	section 	3571(e) 	by making an untimely request 	for
factfinding, 	as presently written, 	does not 	state a prima 	facie
case. 	If 	there are any factual 	inaccuracies 	in this 	letter or
additional 	facts 	which would 	correct 	the 	deficiencies 	explained
above, 	please amend the 	charge. 	The amended charge 	should be
prepared 	on a 	standard 	PERB unfair practice 	charge 	form, 	clearly
labeled Second Amended Charge, 	contain all 	the 	facts and
allegations 	you wish 	to make, 	and be 	signed under penalty of
perjury by 	the 	charging party. 	The 	amended 	charge must 	be 	served
on 	the 	respondent 	and 	the 	original 	proof 	of 	service must be 	filed
with PERB. 	If 	I 	do not 	receive an amended charge 	or withdrawal
from you before May 21, 	1993, 	I 	shall dismiss the above-described
allegation from your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely ,	Sincerely,
~ , 	.......... -
Les 	Chisholm
Regional 	Director
•