Regents of the University of California (Statewide University Police Association) (PERB A129H)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
REGENTS
	OF 	THE
	UNIVERSITY
OF
	CALIFORNIA,
Employer,
APPELLANT,
v.
STATEWIDE
	UNIVERSITY
POLICE 	ASSOCIATION,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
____________________ )
Case
	No. 	SF-M-677-H
PERB
	Order
	No. 	Ad-129-H
Administrative
	Appeal
June
	23,
	1982
Appearances:	
James
	N.
	Odle,
	Attorney 	for 	the
	Regents
	of 	the
University 	of
	California;
	Robert
	A.
	Jones 	for 	the 	Statewide
University 	Police Association.
Before
	Gluck,
	Chairperson;
	Morgenstern
	and
	Jensen,
	Members.
DECISION
The
	University 	of 	California
	(University) 	appeals
	a
regional
	director's
	determination
	that
	impasse
	existed
	between
the 	University
	and
	the 	Statewide 	University 	Police 	Association
(SUPA). 	The
	Public
	Employment
	Relations
	Board
	(PERB
	or 	Board)
reverses 	that 	decision.

FACTS
Applying 	rule 	36030(c)l 	governing 	impasse 	declarations
under 	the 	Educational 	Employment 	Relations 	Act 2 	to 	the
instant 	case, 	the 	regional 	director 	determined 	that 	the 	parties
had 	reached 	a 	point 	in 	their 	negotiations 	where 	continued
meetings 	appeared 	futile. 	She 	noted 	that 	since 	August 	1981,
when 	the 	parties 	commenced 	bargaining, 	approximately 	15
sessions, 	totalling 	over 	40 	hours, 	had 	been 	conducted. 	The
University 	director 	of 	collective 	bargaining, 	Thomas 	Mannix,
and 	SUPA 	representative, 	Robert 	Jones, 	informedo 	the 	regional
director 	that 	four 	categories 	of 	negotiating 	subjects 	existed.
lPERB 	rules 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31000, 	et 	seq.
PERB 	rule 	36030(c) 	provides:
(c) 	In 	reaching 	a 	determination 	about 	the
existence 	of 	an 	impasse, 	the 	Regional
Director 	may 	consider 	the 	number 	and 	length
of 	negotiating 	sessions 	between 	the 	parties,
the 	time 	period 	over 	which 	the 	negotiations
have 	occurred, 	the 	extent 	to 	which 	the
parties 	have 	made 	counter-proposals 	to 	each
other, 	the 	extent 	to 	which 	the 	parties 	have
reached 	tentative 	agreement 	on 	issues 	during
the 	negotiations, 	the 	extent 	to 	which
unresolved 	issues 	remain, 	and 	other 	relevant
data.
2Government 	Code 	section 	3540 	et 	seq. 	Unless 	otherwise
indicated, 	all 	citations 	are 	to 	the 	Government 	Code.
2

The 	first 	included 	categories 	as 	to 	which 	agreement 	had 	been
reached. 3 	The 	second 	category 	was 	comprised 	of 	issues 	as 	to
which 	the 	parties 	were 	"very 	close." 	The 	third 	category
included 	issues 	on 	which 	the 	parties 	were 	"stuck." 	The 	fourth
category 	involved 	issues 	about 	which 	the 	parties 	are 	"far 	apart."
The 	regional 	director 	indicated 	that, 	pursuant 	to 	her
suggestion, 	the 	impasse 	declaration 	was 	deferred 	pending 	the
outcome 	of 	a 	bargaining 	session 	held 	on 	March 	11, 	1982.
Subsequent 	to 	that 	session, 	SUPA 	reasserted 	its 	request 	for
mediation 	based 	on 	its 	assessment 	that, 	while 	agreement 	had 	been
reached 	on 	four 	issues 	(all 	from 	the 	second 	category), 	movement
was 	based 	on 	SUPA's 	acceptance 	of 	the 	University's 	language.
The 	regional 	director 	noted 	that 	the 	University 	and 	SUPA
disagreed 	about 	whether 	the 	University's 	salary 	offer 	was
regressive. 	The 	regional 	director 	indicated 	that 	the 	parties
were 	in 	agreement 	as 	to 	major 	areas 	of 	dispute 	and, 	with 	minor
exceptions, 	no 	movement 	had 	been 	made. 	Mannix 	told 	the 	regional
director 	that 	he 	was 	at 	the 	end 	of 	his 	discretionary 	power 	and
had 	to 	seek 	authority 	to 	make 	changes 	in 	negotiation 	policy.
Based 	on 	the 	above, 	the 	regional 	director 	concluded 	that 	the
parties 	had 	considered 	each 	other's 	proposals, 	had 	engaged 	in
meaningful 	discussions, 	had 	made 	movement 	on 	substantive 	issues
3The 	regional 	director's 	determination 	of 	impasse, 	dated
March 	22, 	1982, 	lists 	the 	subjects 	comprising 	this 	and 	other
categories.
3

and 	had 	attempted 	to 	narrow 	their 	disagreement. 	In 	light 	of
the 	length 	of 	time 	over 	which 	negotiations 	had 	taken 	place 	and
the 	number 	and 	length 	of 	sessions, 	she 	concluded 	that 	the
parties 	were 	at 	impasse.
In 	the 	University's 	appeal 	of 	the 	impasse 	declaration, 	it
asserts 	that 	no 	record 	of 	evidence 	exists 	on 	which 	the 	regional
director's 	decision 	was 	based. 	The 	University's 	recitation 	of
the 	relevant 	facts 	differs 	significantly 	from 	those 	set 	forth
by 	the 	regional 	director. 	It 	refers 	to 	conduct 	on 	the 	part 	of
SUPA 	not 	mentioned 	in 	the 	regional 	director's 	determinationo
Essentially, 	the 	University 	asserts 	that 	no 	true 	impasse 	exists
because 	SUPA 	has 	failed 	to 	bargain 	in 	good 	faith 	since
January 	27, 	1982.4 	It 	alleges 	in 	its 	appeal 	that 	SUPA
submitted 	a 	"final 	offer 	to 	which 	the 	University 	has 	never 	been
given 	an 	opportunity 	to 	respond, 	sought 	impasse 	declaration
simultaneously 	with 	its 	submission 	of 	its 	final 	offer,
rescinded 	prior 	agreements, 	and 	improperly 	preconditioned
/
bargaining 	on 	written 	assurance 	from 	the 	University 	that 	it 	was
prepared 	to 	make 	?ignificant 	movement.
The 	University's 	argument 	is 	that 	the 	regional 	director
failed 	to 	investigate 	these 	allegations 	and, 	based 	on
Mt. 	San 	Antonio 	Community 	College 	District 	(12/30/81) 	PERB
4on 	March 	8, 	1982, 	prior 	to 	the 	regional 	director's
declaration 	of 	impasse, 	the 	University 	filed 	an 	unfair 	practice
charge 	alleging 	that 	SUPA 	was 	not 	bargaining 	in 	good 	faith.
The 	regional 	director 	did 	not 	discuss 	this 	charge 	in 	her
impasse 	declaration.
4

Order
	No.
	Ad-124,
	could 	not
	have
	determined
	that
	a
	genuine
impasse
	existed.
In
	SUPA's
	response,
	it
	"questions" 	the
	factual 	assertions
made 	by
	the
	University's
	attorney
	in 	the
	impasse
	appeal.
	It
does
	not
	submit
	any 	documents 	which
	support 	the
	assertion 	that
the
	University's 	allegations
	are 	not
	true.
In
	a
	letter
	to
	the
	Board 	from
	the
	University
	dated
April
	19,
	1982,
	it
	was
	pointed 	out
	that
	no
	record
	exists
	as
	to
the
	evidence
	relied
	upon 	by
	the
	regional
	director.
	In
	support
of
	its
	recitation
	of 	the
	facts,
	it
	submitted
	a
	declaration
	from
Mannix 	which
	it
	served
	on
	SUPA.
DISCUSSION
In
	Mt.
	San
	Antonio
	CCD
	and
	in
	Marin
	Community
	College
District
	(4/21/82)
	PERB
	Order
	No.
	Ad-126,
	the
	Board
	has
determined
	that
	impasse
	necessarily
	contemplates
	that
	the
parties_attempted 	in
	good
	faith
	to
	reach 	agreement
	before
arriving 	at 	that
	point
	where
	the
	differences
	in
	their 	positions
make
	further 	negotiations
	futile.
In 	the
	instant
	case,
	however,
	the 	regional
	director's
determination 	of
	impasse
	failed 	to 	address 	the
	allegations
raised
	by
	the 	University.
	This
	oversight
	is 	significant
because,
	if
	the
	University's 	allegations 	are 	uncontroverted,
there 	is
	no
	basis 	for 	concluding
	that
	the
	parties 	are
	at
impasse.
	SUPA's
	response 	to 	these 	allegations 	is
	merely
	a
general 	denial 	of 	the 	University's 	assertions.
	In
	sum, 	SUPA
5

presents
	no
	facts
	which
	dispute
	the
	University's 	assertions
contained 	in 	the 	appeal.5
For
	these 	reasons,
	we
	therefore 	grant
	the
	University's
appeal
	of
	the
	impasse
	declaration
	and
	order 	the
	parties
	to
resume
	negotiations
	without
	further
	delay.
	In
	so
	directing,
the
	Board
	is
	mindful
	that
	an
	inordinate
	amount
	of
	time
	has
elapsed 	since
	the
	commencement
	of
	negotiations,
	and
	we
	admonish
both
	parties
	to 	act
	with
	dispatch
	in
	moving
	to
	agreement
	or
	at
least
	removing
	the
	impediments
	that
	now
	prevent 	the
	Board 	from
invoking
	impasse
	procedures.
By:
ORDER
The 	p
	eal
	o~
the 	University 	of
	California
	is
	GRANTED
	and
and 	he
	rfrrminftion
_o_f_t_h_e_regional
	director 	is
	VACATED.
Marty Morgeniftern,
	Member	
Hrry
	GfJc'k",
	Chairperson
Virg'lf7de~'en,
	Memoer
5The
	University's
	submission
	itself
	raises
	some
	doubt 	as
to 	the 	authority 	currently
	held
	by
	its
	negotiator.
	The
opportunity 	to
	respond
	to
	SUPA's 	most
	recent 	proposals
	willrequire 	that
	the 	University 	invest
	its
	spokesperson 	with 	the
authority 	to
	respond
	thereto 	in
	good
	faith.
6