California State University (California Faculty Association) (PERB 0793H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	UNIVERSITY,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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Case No. 	LA-CO-2 7-H
PERB 	Decision No. 	793-H
February 	16, 	1990
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Appearances: 	William B. 	Haughton, 	Attorney, 	for California State
University; 	Edward R. 	Purcell, 	General Manager, 	for California
Faculty 	Association.
Before Craib, 	Shank, 	and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	California 	State
University 	(CSU or University) 	of 	the Board agent's 	dismissal 	of
its 	unfair practice 	charge 	against 	the 	California 	Faculty
Association 	(CFA or Association) 	for failure to 	state a prima
facie 	case. 	The 	University alleged that 	the Association violated
the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA)
section 3571.1 	(c) 	and 	(d)1 by making a factfinding report public
HEERA
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3571.1 	states, 	in pertinent part:
It 	shall be unlawful 	for an employee
organization to:
(c) 	Refuse or 	fail 	to 	engage 	in meeting and
conferring with 	the 	higher 	education
employer.
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prior 	to 	the 	expiration 	of 	the 	ten-day 	confidentiality period
provided by 	HEERA 	section 	3593.2 The Association released 	a 	copy
of the 	factfinding report, 	selected quotes 	from the report, 	and a
memorandum to members of CSU's 	Board of Trustees 	(Trustees) 	and
each of CSU's 	19 	campus presidents. 	The University further
alleged that the Association, 	by 	issuing the memorandum, 	bypassed
and 	undermined 	the 	authority 	of 	CSU's 	designated 	negotiators.
Having reviewed the 	entire record, 	we 	affirm the dismissal
of 	the 	charge 	for the reasons 	set 	forth below.
BACKGROUND
On June 	6, 	1988, 	CSU filed a Request for Impasse
Determination with PERB, 	stating that CSU and CFA were 	at 	impasse
over the 	impact of CSU's decision to 	increase parking 	fees. 	PERB
(d) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth in Article 	9
(commencing with Section 3590).
2Section 3593 	states, 	in pertinent part:
If the dispute 	is 	not 	settled within 30 	days
after the appointment of the panel, 	or, 	upon
agreement by both parties, 	within a longer
period, 	the panel 	shall make findings of 	fact
and recommend terms 	of 	settlement, 	which
recommendations 	shall 	be 	advisory only. 	Any
findings 	of 	fact and recommended terms 	of
settlement 	shall 	be 	submitted 	in writing 	to
the parties 	privately before 	they 	are made
public. 	The panel, 	subject to the rules and
regulations of the board, 	may make such
findings 	and recommendations public 	10 	days
thereafter. 	During this 	10-day periodt 	the
parties 	are prohibited 	from making the
panel's 	findings 	and 	recommendations
public. . . .
(Emphasis 	added.)
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determined the existence of an impasse on June 	30, 	1988, 	and
appointed a mediator. 	The matter was 	submitted to 	factfinding,
and, 	on June 20, 	1989, 	a factfinding panel issued a report. 	The
factfinding panel 	member 	appointed by CSU wrote 	a 	dissent 	to 	the
factfinding 	report.
On June 28, 	1989, 	CFA sent a copy of the factfinding report,
dissent, 	selected quotes 	from the report, 	and a memorandum
written by CFA's 	panel 	member to 	each of 	the University's
Trustees 	and 	19 	campus presidents.
CSU 	filed an unfair practice 	charge with PERB on July 	28,
1989, 	alleging that CFA prematurely made public 	a 	factfinding
report 	and 	bypassed 	and 	undermined 	CSU's 	designated 	negotiators
in violation of HEERA section 3571.l(c).
The Board agent, 	by letter dated October 	13, 	1989, 	replied
to CSU's 	initial 	charge. 	The Board agent 	stated that:
Government Code section 3593, 	however, 	only
prohibits 	making 	a 	factfinding 	report
"public" 	during the 	10-day period. 	It 	is 	not
alleged that CFA's 	action, 	in intent or
effect, 	made the report available to the
public 	at 	large. 	It 	is 	only alleged that CFA
sent the 	report 	to CSU's 	Trustees 	and 	campus
Presidents. 	Under Government Code 	section
3562(h), 	the Trustees are defined to be the
"employer" 	and therefore one of the actual
parties 	to the 	impasse proceeding. 	The
campus 	Presidents 	are 	evidently top
managerial 	employees of CSU, 	who presumably
have 	a 	confidential 	relationship with the
Trustees. 	Information given to the Trustees
and 	the 	campus 	Presidents would therefore 	not
appear to be 	"public." 	Furthermore, 	if the
Trustees 	and the 	campus 	Presidents were
regarded as 	the 	"public," 	then CSU 	itself
could 	not 	share 	the 	factfinding 	report with
them during the 	10-day period. 	It 	seems
w
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unlikely that this was 	the 	intent of
Government Code 	section 3593.
As 	to 	CSU's 	allegation that 	CFA's 	memorandum undermined 	the
authority of 	CSU's 	designated negotiators, 	the 	Board agent
stated:
It 	is 	not alleged that CFA engaged 	in 	such a
campaign to undermine 	and remove CSU's
negotiators. 	All that appears 	is 	that CFA
criticized 	the 	dissent 	from 	the 	factfinding
report 	and urged CSU 	"to 	engage 	in 	serious
reconsideration of 	its 	positions 	and 	conduct
in the parking 	fee dispute." 	This does 	not
rise 	to 	the 	level 	of 	a 	Safeway 	Trails[3]
case.
On October 25, 	198 9, 	the University filed a first amended
charge. 	CSU alleged that 	the 	trustees 	have 	fully delegated
complete 	authority 	on all 	matters 	connected with 	collective
bargaining 	to 	their 	Committee 	on Collective 	Bargaining 	and 	CFA
had 	full 	knowledge 	of 	such delegation. 	The 	University 	further
alleged that 	its 	19 	campus presidents 	have no authority or
responsibility with 	respect 	to 	collective bargaining matters.
Therefore, 	the University contends 	that the 	issuance of 	the
factfinding 	report and other documents 	to CSU's 	Trustees 	and
campus 	presidents who are 	not members 	of 	the Committee 	on
Collective 	Bargaining 	constitutes 	making 	the 	factfinding 	report
public.
3 The Board agent cited Safeway Trails, 	Inc. 	(1977) 	233 	NLRB
1078 	[96 	LRRM 	1614] 	and Westminster School District 	(1982) 	PERB
Decision No. 	277 	in his 	analysis 	regarding CSU's 	allegation that
CFA undermined 	the 	authority 	of 	its 	designated 	negotiators.
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The 	Board 	agent 	replied 	to 	the 	first 	amended 	charge 	by
letter dated November 6, 	1989, 	stating that the legal 	conclusion
in CSU's 	charge was 	not 	justified by the 	factual 	allegations
contained 	therein. 	The 	Board agent defined the word 	"public" 	as
"known by, 	or open to the knowledge of, 	all or most people."
Inasmuch 	as 	there was 	no 	allegation that CFA made the 	factfinding
report 	"public," 	in the ordinary 	sense, 	the Board agent dismissed
the 	charge based on the 	facts 	and 	the 	reasons 	set 	forth 	in the
October 	13, 	1989 letter.
THE APPEAL
The 	University 	concedes 	on appeal 	that 	the 	Trustees 	are
parties and, 	thus, 	no violation occurred as a result of CFA
sending 	copies 	of 	the 	factfinding report 	to 	individual 	trustees.
The University, 	however, 	appeals 	the dismissal on the grounds
that 	the 	Board 	agent 	misinterpreted 	and 	misapplied 	the word
"public" 	as 	it 	is used in section 3593 	of HEERA. 	The University
alleges 	that the 	19 	campus presidents 	are neither parties 	nor
agents 	of management 	for purposes 	of 	the 	factfinding proceedings.
Therefore, 	the University contends 	that, 	although the presidents
are employees 	of CSU, 	they are also members 	of the 	"public" 	as
that word 	is 	used in the context of 	section 	3593.
The Association 	filed a 	statement 	in opposition to 	the
University's appeal pursuant to PERB Regulation 32635(c), 	stating
that 	the 	Board 	agent 	correctly 	found 	that 	the 	University 	failed
to 	state 	a prima 	facie case.
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DISCUSSION
The 	only 	issue before 	the 	Board 	is whether the Association,
by 	sending 	copies 	of 	the 	factfinding 	report 	to 	the 	University's
19 	campus presidents 	during the 	10-day period 	contained 	in EERA
section 	3593, 	made the 	factfinding report 	"public."
The 	University argues 	that the word 	"public" 	has 	more 	than
one 	ordinary meaning and pointed 	out 	that 	one 	meaning 	is 	used 	to
distinguish the word 	"private." 	The 	University 	contends 	that,
since 	section 	3593 	states 	that 	the 	factfinding report 	"be
submitted to the parties privately" 	before being made public, 	the
Legislature 	intended 	absolute 	confidentiality 	or 	secrecy 	during
the 	10-day period. 	Therefore, 	the University argues that, 	in
this 	instance, 	the word 	"public" 	means 	any member of the public.
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While 	the 	Board has 	not 	specifically 	defined what 	constitutes
making a 	factfinding report 	"public," 	the Board has 	found that 	a
factfinding 	report was 	made public when a 	district 	circulated
significant 	portions 	of 	the 	report 	to 	certificated 	employees
(Las Virgenes Unified School District 	(1979) 	PERB Order No. 	IR-8)
and when portions 	of the report were read to a 	local 	newspaper
reporter 	(Capistrano 	Unified 	School 	District 	(1983) 	PERB 	Decision
No. 294).
The 	"parties," 	in the instance case, 	are the University
(employer) 	and the Association 	(exclusive representative). 	The
"Employer" 	is defined in section 3562(h) 	as the trustees 	of the
California 	State 	University, 	including any person acting as 	an
agent of 	an employer. 	There 	can be no dispute that a university
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is 	"managed" 	through a hierarchy of 	officials 	and officers whose
function it 	is 	to effectuate 	its policies 	and programs. 	The
Legislature 	contemplated 	this 	chain of 	authority by 	its 	inclusion
of 	the word 	"agent" 	in the definition of 	employer. 	The Board has
held 	that 	school 	principals 	and 	assistant 	superintendents 	are
agents 	of 	school 	districts. 	(Santa 	Clara 	Unified 	School 	District
(1979) 	PERB Decision No. 	104.) 	Since campus presidents must, 	at
a minimum, 	effectuate the policies 	and programs 	of the Trustees,
we 	find 	them to be 	agents 	of 	the 	employer.4
For the 	above-stated reasons, 	we 	agree with the 	Board agent
that 	information given to 	the 	campus 	presidents was 	not made
public within the meaning of 	section 	3593 	of HEERA. 	Therefore,
we 	affirm the 	Board 	agent's 	dismissal 	of 	the unfair practice
charge 	for 	failure to 	state a prima 	facie 	case.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-2 7-H 	is 	hereby
DISMISSED.
Members 	Craib and Camilli 	joined 	in this 	Decision.
4The 	University also 	argues 	that 	because 	its 	presidents
"have 	no 	authority or responsibility with 	respect 	to 	collective
bargaining matters," 	they are 	not 	agents 	of 	the 	University 	for
purposes 	of 	the 	factfinding report. 	Section 3593 	does 	not define
"party" 	to 	include 	only those who 	actively participate 	in the
collective bargaining process. 	We, 	therefore, 	reject this
argument.
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