Trustees of the California State University (Statewide University Police Association) (PERB 0805HB)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATEWIDE UNIVERSITY POLICE
ASSOCIATION, Case Nos. S-CE-32-H

S-CE-33-H

Request for Reconsideration

PERB Decision No. 805-H

)

)

)

Charging Party, )

)

Vv. )
)

TRUSTEES OF THE CALIFORNIA STATE PERB Decision No. 805b-H

UNIVERSITY,

)

)

) November 14, 1990
Respondent.

Appearances: Mastagni, Holstedt & Chiurazzi by Mark R. Kruger,
Attorney, for Statewide University Police Association; William B.
Haughton, Attorney, for Trustees of the California State
University.

Before Hesse, Chairperson; Craib, Shank, Camilli and Cunningham,
Members.

DECISTON
CRAIB, Member: This case is before the Public Employment
Relations Board (PERB or Board) on a request for reconsideration,
filed by the Trustees of the California State University (CSU),
of PERB Decision No. 805-H. In that case, the Board held that
CSU violated section 3571, subdivisions (a) and (b), of the

Higher Education Employer-Employee Relations Act (HEERA or Act)?

'HEERA is codified at Government Code section 3560 et seq.
Unless otherwise indicated, all statutory references are to the
Government Code. Prior to January 1, 1990, section 3571,
subdivisions (a) and (b) stated:

It shall be unlawful for the higher education
employer to:

(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce

by 	imposing discipline 	on Officer John Moseley 	(Moseley) 	due 	to
his 	exercise 	of protected 	activities.
Since the 	filing of 	its 	request 	for reconsideration, 	CSU
filed 	a 	motion asking the 	Board 	to 	give 	collateral 	estoppel
effect 	to a 	conflicting decision of 	the 	State 	Personnel 	Board
(SPB), 	which became 	final while the request 	for reconsideration
was pending before PERB.2 On June 	14, 	1990, 	the Board issued
Decision No. 	805a-H, 	granting the request 	for reconsideration so
that 	the 	Board 	could 	examine 	the propriety 	of 	applying 	collateral
estoppel 	in these 	circumstances.
For the reasons 	stated below, 	we 	find 	it 	improper to 	apply
collateral 	estoppel principles 	to 	the 	situation herein and
reaffirm the holding of PERB Decision No. 	805.3
employees 	because of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2The 	SPB decision, 	in which 	it was 	held that CSU had cause
for 	disciplining 	Moseley 	and would 	have 	taken 	the 	actions 	against
him even 	in the absence of his protected activity, 	became 	final
when 	the 	30-day period 	for 	applying 	for 	rehearing 	expired. 	(See
Cal. 	Code of Regs., 	title 2, 	sec. 	70; 	State of California
(Department of Developmental Services) 	(1987) 	PERB Decision No.
619-S, 	p. 	2, 	fn. 	1 	(petition for writ of mandamus does not
prevent 	SPB 	decision 	from being 	considered 	final 	for 	the purposes
of 	collateral 	estoppel.))
3In its 	original request 	for reconsideration, 	CSU asserted,
based on findings 	in the not yet 	final decision of 	the 	SPB, 	that
the 	Board's 	decision contained prejudicial 	errors 	of 	fact. 	As
the 	findings 	underlying Decision No. 	805 	are amply 	supported by
the 	record, 	we 	find that 	it contains 	no errors 	of 	fact. 	Nor are
the 	findings 	of 	the SPB binding upon this 	Board. 	(See
discussion, 	infra.)
22

- -
DISCUSSION
The 	doctrine 	of 	collateral 	estoppel 	is 	applied to preclude
the 	relitigation of 	an 	issue 	already decided 	in another
proceeding where: 	(1) 	the 	issue decided 	in the prior proceeding
is 	identical 	to that 	sought to be relitigated; 	(2) 	the previous
proceeding resulted 	in a 	final 	judgment on the merits; 	and 	(3)
the party against whom 	collateral 	estoppel 	is 	asserted was 	a
party or 	in privity with a party 	in the prior proceeding. 	(The
People v. 	June Leora Loues Sims 	(1982) 	32 Cal.3d 468, 	484 	[186
Cal.Rptr. 	77]; 	The People v. 	Alvin Taylor 	(1974) 	12 Cal.3d 686
[117 	Cal.Rptr. 	70].) 	Collateral 	estoppel 	effect may be given to
decisions 	of administrative agencies when: 	(1) 	the agency is
acting in a 	judicial 	capacity; 	(2) 	it resolves disputed issues 	of
fact properly before 	it; 	and 	(3) 	the parties have had an adequate
opportunity 	to 	litigate 	such disputed 	issues. 	(The 	People v.
-
June Leora Lopes Sims , 	supra.)
We agree that, 	if the present circumstances presented a
simple 	case 	of 	two 	administrative 	agencies 	with 	concurrent
jurisdiction reaching conflicting decisions, 	each unbeknownst 	to
the 	other,4 it would be 	appropriate 	to 	give 	collateral 	estoppel
4While 	PERB was 	unaware 	of 	the 	SPB proceedings 	until 	the
filing of 	the 	instant request 	for reconsideration, 	the 	SPB was
fully aware 	of 	the pending PERB proceedings. 	Prior to 	the
commencement 	of the SPB hearing, 	a 	PERB administrative 	law judge
had 	issued a proposed decision. 	In fact, 	the 	transcripts 	from
the 	PERB 	hearing 	and 	the proposed 	decision were 	entered 	into
evidence before 	the SPB. 	More 	importantly, 	Moseley requested the
SPB 	to 	stay 	its 	proceedings 	until 	those before 	PERB were
completed, 	but that request was 	never 	formally acted upon and
was, 	therefore, by implication, denied.
33

effect to SPB's decision. 	(See e.g., 	Valerie Baughman. 	et al. 	v.
State 	Farm Mutual Automobile 	Insurance Company 	(1983) 	148
Cal.App.3d 621 	[196 Cal.Rptr. 	35].) 	However, 	that is not the
case presented here.
The 	SPB's 	authority 	to 	examine disciplinary matters
involving CSU 	employees 	is 	derived 	not 	from 	the 	California
Constitution, 	as 	is 	its 	authority vis-a-vis 	state civil 	service
employees, 	but 	from the Education Code.5 Education Code 	section
8953 9 states, 	in pertinent part:
Any employee dismissed, 	suspended, 	or demoted
for cause may request 	a hearing by the 	State
Personnel 	Board by 	filing 	such a 	request, 	in
writing, 	with the board within 20 days 	of
being 	served with the 	notice. 	The request
may be 	on the grounds 	that 	the 	required
procedure was 	not 	followed; 	that there 	is 	no
ground for dismissal, 	suspension, 	or
demotion; 	that the penalty is 	excessive,
unreasonable, 	or discriminatory; 	or that the
employee did not do 	the 	acts 	or omissions
alleged 	as 	the 	events 	or transactions 	upon
which the 	causes 	are based; 	or that the acts
or omissions 	alleged as 	the 	events 	or
transactions 	upon which 	the 	causes 	are based
were 	justified.
The State 	Personnel 	Board 	shall 	hold a
hearing, 	following the 	same procedure as 	in
state 	civil 	service proceedings 	and 	shall
render a decision affirming, 	modifying or
revoking the action taken. 	In a hearing, 	the
burden of proof 	shall 	be 	on the party 	taking
the dismissal 	action.
55Article VII, 	section 3, 	subdivision 	(a) 	of the California
Constitution vests 	the 	SPB with 	the 	authority 	to 	review
disciplinary actions 	against civil 	service 	employees. 	Article
VII, 	section 4, 	subdivision 	(h) 	specifically exempts officers and
employees 	of 	the CSU 	from civil 	service.
4

PERB's 	jurisdiction over unfair practices 	arising under
HEERA is 	conferred by the Government Code 	(sec. 	3560 	et 	seq.).
However, 	this does 	not mean that the 	SPB and PERB have 	concurrent
jurisdiction, 	for the language of HEERA provides 	that PERB's
jurisdiction 	is preemptive 	in nature. 	HEERA section 3563.2,
which was 	enacted after Education Code 	section 89539, 	states, 	in
pertinent part:
The 	initial determination as 	to whether the
charges 	of 	unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within the 	exclusive
jurisdiction of 	the board.
(Emphasis 	added.)
Education Code 	section 89539, 	in contrast, 	contains 	no 	language
that 	can be 	construed to provide 	the 	SPB with 	exclusive
jurisdiction.
The preemptive 	nature of 	PERB's 	jurisdiction has 	been
recognized 	consistently by the 	courts. 	In San Diego 	Teachers
Association, 	et al. 	v. 	The Superior Court of San Diego County
(1979) 	24 Cal. 	3d 1 	[154 Cal.Rptr. 	893], 	the California Supreme
Court 	annulled 	contempt 	orders 	against 	strike 	conduct 	in defiance
of 	a 	restraining order and preliminary 	injunction. 	The 	Court
found that, 	in light of PERB's 	initial, 	exclusive 	jurisdiction to
determine 	if 	the 	strike 	constituted an unfair practice and, 	if
so, 	what the appropriate remedy 	should be, 	the 	superior court's
orders were 	an 	invalid 	infringement upon PERB's 	jurisdiction.6
6 While the 	San Diego 	case arose under the Educational
Employment Relations Act 	(EERA), 	the result would be the 	same
under the HEERA, 	as 	the 	jurisdictional 	language 	in the two
6
5

(cf. 	William Leek, 	et al. 	v. 	Washington Unified School District,
et al. 	(1981) 	124 Cal.App.3d 43 	[177 Cal.Rptr. 	196] 	(trial court
properly 	dismissed 	action where 	claims 	were 	within 	the 	exclusive
jurisdiction of 	PERB).) 	In San Lorenzo 	Education Association v.
Larry A. 	Wilson, 	et al. 	(1982) 	32 Cal.3d 841 	[187 Cal.Rptr. 	432],
the 	court 	found a 	court action to be proper where 	the 	claim
presented did not 	fall within PERB's 	jurisdiction, 	stating: 	"We
do 	not 	dispute 	that 	PERB 	has 	exclusive 	jurisdiction over 	issues
concerning unfair labor practices 	(citation omitted). 	The 	case
at bar, 	however, 	does 	not involve a dispute over an unfair
practice." 	(Id. 	at p. 	853; 	cf. 	Wygant v. 	Victor Valley Joint
-
Union High School District 	(1985) 	168 	Cal.App.3d 	319
[214 Cal.Rptr. 	205]; 	California School Employees Association, 	et
al. 	v. 	Travis Unified School District, 	et al. 	(1984) 	156
Cal.App.3d 242 	[202 Cal.Rptr. 	699]; 	California School Employees
Association v. 	Azusa Unified School District, 	et al. 	(1984) 	152
Cal.App.3d 	580 	[199 	Cal.Rptr. 	635].)7
The 	impact of PERB's 	initial, 	exclusive 	jurisdiction upon
the 	SPB's 	authority 	to 	address 	disciplinary matters 	involving 	CSU
employees, 	where the adverse action is 	alleged to have been due
statutes 	is 	identical. 	(See EERA 	section 	3541.5.)
7In each of 	the above cited cases, 	contrary to the dissent's
assertions, 	the 	issue addressed was whether the claims 	asserted
fell within the 	scope of 	PERB's 	exclusive 	jurisdiction, 	and not
whether 	the 	complainant was 	bound 	to 	exhaust 	administrative
remedies.
66

to protected activity under HEERA, 	is 	apparent.8 If 	the 	courts
must defer to PERB's 	exclusive 	jurisdiction, 	so must an
administrative 	agency.9 Where 	the 	matter before 	the 	SPB 	arguably
involves 	an unfair practice, 	it 	is 	incumbent upon the SPB to 	stay
or 	continue 	its 	proceedings 	until 	remedies 	before 	PERB have 	been
exhausted.
Here, 	the SPB was 	made aware of pending proceedings 	before
PERB, 	yet proceeded to a final decision. 	Thus, 	the SPB acted in
excess 	of 	its 	authority and 	its 	decision may not be 	given
collateral 	estoppel 	effect. 	As 	noted above, 	one requirement 	for
applying 	collateral 	estoppel 	to a decision of 	an administrative
agency 	is 	that 	the 	agency 	resolved disputed 	issues 	of 	fact
properly before it. 	(People v. 	Sims, 	supra. p. 	479.) 	As a
general 	matter, 	a 	judgment rendered 	in excess 	of 	jurisdiction
will not be given collateral estoppel effect. 	(7 Witkin, 	Cal.
88The 	SPB's 	authority 	to 	address 	disciplinary matters 	not
involving an alleged unfair practice is, 	of course, 	unaffected by
PERB's 	exclusive 	jurisdiction.
9The dissent 	fails 	to 	acknowledge 	the 	logic 	of 	this
proposition, 	and cites 	no authority 	in defense of 	its position.
Presumably, 	the dissent 	is 	relying on its peculiar view that
"initial, 	exclusive 	jurisdiction" 	refers to nothing more than the
doctrine of 	exhaustion of administrative remedies. 	However, 	as
exhaustion of 	administrative 	remedies 	is 	automatically 	implicated
by 	the 	creation of 	a 	comprehensive 	administrative 	remedy 	such 	as
that contemplated by HEERA, 	(Frank Abelleira. 	et al. 	v. 	District
Court of Appeal of the State of California 	(1941) 	17 Cal.2d 280,
292 	[109 P.2d 	942]), 	the Legislature's deliberate inclusion of
specific 	language providing for 	"initial, 	exclusive 	jurisdiction"
must 	carry 	some additional meaning, 	or this 	language becomes 	mere
surplusage. 	Such an interpretation is 	to be avoided. 	(City and
County of San Francisco v. 	John C. 	Farrell 	(1982) 	32 Cal.3d 47,
54 	[184 Cal.Rptr. 	713]; 	Gay Law Students Association v. 	Pacific
Telephone & Telegraph Co.. 	et al. 	(1979) 	24 Cal.3d 458, 	478
[156 Cal.Rptr. 	14].)
7

Procedure 	(3d ed. 	1985) 	Judgment, 	sec. 	194, p. 	630.) 	In
addition, 	for this 	Board to give 	collateral 	estoppel 	effect to
the SPB's 	failure to defer to PERB's 	initial, 	exclusive
jurisdiction would 	violate 	our 	statutory 	duty 	to 	decide 	those
matters 	falling within 	our 	exclusive 	jurisdiction 	and would
require 	us 	to 	ignore the plain language of 	HEERA 	section
3563.2.10 The 	statute plainly provides 	that PERB has 	initial,
exclusive 	jurisdiction, 	and we must presume 	that 	the 	Legislature
meant what 	it 	said.
Moreover, 	remaining true to the plain language of 	the
controlling 	statutes 	best 	serves 	the principles 	of 	administrative
accommodation. 	Deferring to PERB when the 	HEERA 	is 	implicated
allows 	PERB to decide those 	issues within its 	expertise, 	i.e.,
whether HEERA has 	been violated. 	In a 	case 	such 	as 	the 	instant
10In light of 	our discussion here, 	certain elements 	of 	Kern
County Office of Education 	(1987) 	PERB Decision No. 	630 	and
San Diego Unified School District 	(1987) 	PERB Decision No. 	631
are 	called 	into 	question. 	San Diego 	involved 	instructions 	by the
Board on remand 	to 	a 	Board 	agent 	to 	consider the 	appropriateness
of 	giving collateral 	estoppel 	effect 	to the 	earlier 	findings 	of 	a
local personnel 	commission. 	In Kern County, 	the Board 	stated, 	in
dicta, 	that application of 	the collateral 	estoppel doctrine might
have been required had all 	the 	elements 	of 	the doctrine 	been
satisfied. 	In that case, 	the collateral 	estoppel doctrine was
not applied, 	however, 	as the Board affirmed the dismissal 	of the
charge by the Board 	agent. 	To the 	extent 	these decisions
contradict this 	opinion, 	both decisions 	should be overruled. 	We
note 	that both 	Kern County 	and 	San 	Diego 	cite 	State 	of 	California
(Department of Developmental Services)f 	suprat 	PERB Decision
No. 	619-S 	in 	support of 	the conclusion that 	collateral 	estoppel
might be 	applicable 	to the decisions 	of 	local personnel
commissions. 	Department 	of 	Developmental 	Services 	addressed the
effect 	of 	a prior decision rendered by the 	SPB while 	acting
within its 	constitutional 	authority, 	and thus 	that 	case 	should
not 	have 	been 	considered 	controlling 	in Kern County 	and
San Diego.
8

one, 	if 	PERB were to decide that the discipline would not have
taken place but 	for the 	exercise 	of protected activity, 	there
would be 	no 	reason to waste 	resources 	by 	then proceeding before
the SPB. 	However, 	if no violation is 	found, 	there remains the
issue of whether the discipline was 	for cause, 	which 	is within
the SPB's 	expertise. 	In contrast, 	this 	Board does 	not examine
the propriety of 	an employer's 	personnel policies 	nor 	is 	its
purpose 	to 	ensure 	that 	those policies 	are 	applied 	fairly. 	Our
inquiry 	is 	limited to determining 	if 	the 	adverse 	action 	is 	taken
in 	retaliation 	for protected 	activity.
Our dissenting 	colleagues 	rely heavily 	on the 	holdings 	in
Pacific Legal Foundation, 	et al. 	v. 	Edmund G. 	Brownf 	Jr. 	(1981)
29 Cal.3d 168 	[172 Cal.Rptr. 	487] 	(hereafter PLF). 	However, 	that
case 	is 	inapposite. 	In PLF. 	the California Supreme Court
rejected 	a 	facial 	attack on the 	constitutionality of 	the 	State
Employer-Employee 	Relations 	Act.11 The 	Court determined 	that 	the
statute 	itself was 	not 	an 	infringement upon the 	SPB's
constitutional 	authority 	and 	that 	any potential 	interference 	with
the 	SPB's 	constitutional 	authority 	could be 	avoided 	by
administrative 	accommodation or by 	the 	"sensitive 	application of
evolving judicial principles." 	(Id. 	at p. 	200.) 	In its
conclusion, 	the Court stated:
Finally, 	the 	statute's grant of 	initial
jurisdiction to 	the 	Public 	Employment
Relations 	Board 	to 	adjudicate 	"unfair
practices" 	creates no 	facial 	invalidity
nThis 	statute has 	since been renamed the 	Ralph C. 	Dills
Act.
99

because, 	in case of future disputes, 	an
overlap 	of 	the 	two boards 	can be reconciled
either by 	negotiation or 	litigation,
(Id, at p. 202. ) 1 2
The 	Court 	implicitly recognized a potential problem 	if, 	in
the 	case of 	an actual conflict, 	PERB's 	jurisdiction 	interfered
with the constitutional authority of the SPB; 	however, 	the Court
did not have to decide that 	issue because 	it was 	presented only
with a 	facial attack on the 	statute. 	Instead, 	the Court
suggested that 	the 	two boards 	might avoid an actual 	conflict with
the 	SPB's 	constitutional 	authority 	through 	accommodation 	or
negotiation. 	This 	Board 	stands 	ready to 	seek 	such 	accommodation
in order 	to 	avoid 	interfering with 	the 	SPB's 	constitutional
authority. 	(See, 	e.g., 	State of California 	(Dept, 	of
Developmental Services, 	supra. 	PERB Decision No. 	619-S.)
However, 	the present 	case does 	not 	involve any actual 	or
potential 	conflict with 	the 	SPB's 	constitutional 	authority 	over
the discipline of 	state civil 	service employees. 	Instead, 	it
involves 	an actual 	conflict 	between the 	SPB's 	statutory 	authority
under the Education Code and PERB's 	initial, 	exclusive
jurisdiction under HEERA.1 3 	Therefore, 	unlike 	the 	situation
12Contrary to the dissent's 	statement at p. 	34 	of 	its
opinion, 	the Supreme Court acknowledged the exclusive nature 	of
PERB's 	unfair practice 	jurisdiction 	in the 	statement 	quoted
above, 	and has done 	so in other cases. 	(San Diego Teachers
Association v. 	Superior Court of San Diego County, 	supra. 	24
Cal.3d 	1, 	12.)
13Without any 	supporting 	authority, 	the dissent 	states 	that
in 	"hybrid" 	unfair practice cases, 	PERB does not have exclusive
jurisdiction, 	contrary to the plain language of HEERA, 	but
concurrent 	jurisdiction, 	with whatever other agency may be
implicated. 	Thus, 	under the dissent's line of reasoning, 	PERB
10

presented 	in PLF. 	there 	is 	no 	legal 	impediment to the 	enforcement
of 	PERB's 	exclusive 	jurisdiction.
ORDER
For the reasons 	stated above, 	the Board finds 	that 	it would
be 	improper to 	apply collateral 	estoppel 	effect 	to 	the
conflicting 	decision of 	the 	SPB 	and hereby 	REAFFIRMS 	the 	findings
and order in PERB Decision No. 	805.
Member Cunningham 	joined 	in this 	Decision.
Chairperson Hesse's 	concurring opinion begins 	on p. 	12.
Members 	Shank and Camilli's 	dissenting opinion begins 	on p. 	29.
has 	exclusive 	jurisdiction over 	an unfair practice 	only 	if 	the
claim is 	not cognizable before any other agency. 	Such reasoning,
of 	course, 	makes 	the 	"exclusive 	jurisdiction" 	language 	in the
statute meaningless. 	"Exclusive" 	is defined as 	excluding or
tending to exclude all others. 	(Webster's New World Diet. 	(2d
college ed. 	1976) p. 	489.)
[C]ourts 	are bound to give 	effect 	to 	statutes
according to the usual, 	ordinary import of
the language employed in framing them. 	. 	. 	.
[Citations.] 	If the words 	of the 	statute are
clear, 	the court 	should not add to or alter
them to 	accomplish a purpose that does 	not
appear on the 	face of 	the 	statute or 	from 	its
legislative history. 	[Citations.]
(California Teachers Association v. 	San Diego
Community College District, 	et al. 	(1981)
28 Cal.3d 692, 	698 	[170 Cal.Rptr. 	817].)
The 	dissent's 	interpretation of 	the 	term 	"exclusive" 	ignores 	this
basic 	rule 	of 	statutory 	construction.
11

Hesse, 	Chairperson, 	concurring: 	While I agree with the
majority's 	conclusion that 	collateral 	estoppel 	should 	not 	be
applied 	in this 	case, 	I disagree with the majority's 	analysis,
especially 	its 	false premise 	that 	the 	Public 	Employment 	Relations
Board 	(PERB or Board) 	and the State Personnel 	Board 	(SPB) 	do not
have 	concurrent 	jurisdiction. 	Rather, 	the Board 	is 	faced with a
case presenting the 	issue not addressed, 	but alluded to, 	by the
California Supreme Court in Pacific Legal Foundation, 	et al. 	v.
Edmund G. 	Brown. 	Jr. 	(1981) 	29 Cal.3d 168: 	an actual
jurisdictional 	conflict between PERB 	and the 	SPB. 	As 	stated by
the court:
Because 	no 	actual 	jurisdictional 	conflict
between PERB 	and the 	State 	Personnel 	Board
confronts us 	in this proceeding, 	we have no
occasion to 	speculate 	on how 	some
hypothetical 	dispute 	that 	might 	be presented
for decision 	in the 	future 	should properly be
resolved. 	As 	numerous 	authorities 	in other
jurisdictions make clear, 	however, 	any
conflicts which may arise 	in this 	area 	can be
resolved 	either 	by 	administrative
accommodation between the 	two 	agencies
themselves 	[fn. 	omitted] 	or, 	failing that, by
sensitive 	application 	of 	evolving 	judicial
principles. 	. . .
(Id. 	at p. 	200.)
In State Personnel Board et al. 	v. 	Fair Employment and Housing
Commission, 	et al. 	(1985) 	39 Cal.3d 422, 	the court also discussed
the potential 	jurisdictional 	conflict 	between the 	SPB 	and 	another
state 	agency with 	concurrent 	jurisdiction. 	The 	court 	stated:
The degree of deference 	that 	should be 	given
to the 	[SPB's] 	findings 	and conclusions will
depend on the 	individual 	case. 	If the 	[Fair
Employment and Housing Commission] 	is
satisfied 	that 	a particular 	issue presented
to 	it was 	sufficiently 	explored 	and decided
12

by the 	[SPB], 	then it may, 	in comity, 	bar
relitigation of the 	issue. 	As 	a general
matter, 	however, 	preclusion of adjudication
at the outset would be 	inappropriate, 	because
the 	issues presented to the 	[SPB] 	and the
[Fair Employment 	and Housing Commission] 	will
not 	often be 	identical 	and because the
statutory 	schemes 	under which 	they 	operate
serve different public policies,
fid, 	at p. 	443.)
Clearly 	this 	case 	is 	an example 	of 	the 	lack of 	administrative
accommodation between PERB 	and the 	SPB. 	While 	the parties
officially 	informed the SPB of 	the pending PERB proceedings, 	as
evidenced by 	the 	motion to 	take 	the 	SPB matter 	off 	calendar
pending PERB proceedings, 	no 	such notice was accorded to PERB.
Although the 	SPB decision does 	not address 	the above motion, 	the
fact 	that 	the 	SPB proceeded with 	its 	decision 	indicates 	it did
not defer to PERB's proceedings. 	Further, 	as 	stated 	in the 	SPB
transcripts 	and decision, 	the SPB used the entire record,
including the transcripts, 	exhibits, 	and PERB administrative 	law
judge 	(ALJ) 	proposed decision, 	as part of 	its own record. 	The
SPB record consists 	of 	only two days 	of hearing. 	During the
hearing, 	the California State University 	(CSU) 	called 	four
witnesses. 	The attorney 	for Statewide University Police
Association 	(SUPA) 	and Officer John Moseley 	(Moseley) 	did not
call 	any witnesses, 	but relied upon the 	introduction of PERB's
record 	into 	the 	SPB's 	record.1
1 In late May 	1990, 	after receiving CSU's motion for
reconsideration, 	the Board requested the 	SPB record. 	On June 	4,
1990, 	the Board 	sent a written request to the 	SPB and was
informed that 	it would take 	six 	to 	eight weeks 	to 	transcribe 	the
hearing. 	Subsequently, 	the Board placed the 	instant 	case 	in
abeyance pending receipt of the SPB record. 	On August 	15, 	1990,
13

Neither the parties 	nor the 	SPB 	informed PERB 	of 	the 	SPB
proceedings. 	On April 	17, 	1990, 	the Board issued its decision
finding that CSU violated 	section 	3571(a) 	and 	(b) 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA) 	when it
unlawfully 	disciplined 	Moseley 	for his 	exercise 	of 	protected
activity. 	Specifically, 	the 	Board 	found that CSU violated HEERA
when it issued: 	(1) 	a letter of reprimand; 	(2) 	a 	5-day
suspension; 	and 	(3) 	a 3-month 	suspension. 	(California State
University 	(1990) 	PERB Decision No. 	805-H.) 	By CSU's motion for
reconsideration of PERB Decision No. 	805-H, 	PERB was 	first
informed of 	the 	SPB proceedings 	and 	that 	the 	SPB 	had 	adopted 	its
ALJ 	decision only 	four days 	before 	this 	Board 	issued 	its
decision. 	The 	SPB decision finds 	that CSU was 	justified 	in
imposing 	the 	5-day 	and 	3-month 	suspensions.
Under an application of 	the 	collateral 	estoppel 	doctrine,
the 	SPB's 	decision prevails 	over the Board's decision. 	However,
it 	is 	inconceivable 	that 	the difference 	of 	only 	four days
determines which decision prevails. 	The purpose of 	the
collateral 	estoppel 	doctrine 	is 	"to promote 	judicial 	economy by
PERB was 	informed 	that 	the 	hearing had 	not yet 	been 	transcribed.
On August 23, 	1990, 	the SPB projected that the hearing transcript
would be presented to PERB as 	early as 	September 	12, 	1990 	(four
months 	from the date of the 	initial record request). 	On
September 	17, 	1990, 	PERB finally received a copy of the SPB
transcripts. 	However, 	PERB has 	never received the complete
record of 	SPB's proceedings. 	This 	delay and lack of response 	is
further 	evidence of 	SPB's 	lack of 	administrative 	accommodation.
In the 	interest of 	judicial 	economy and 	efficiency, 	the Board
proceeded with 	its 	decision.
14

minimizing repetitive 	litigation, 	to prevent 	inconsistent
judgments 	which undermine 	the 	integrity 	of 	the 	judicial 	system
[and] 	to protect against vexatious 	litigation." 	(Sandra 	Sue
Lockwood, 	et al. 	v. 	The Superior Court of Santa Clara County
(1984) 	160 Cal.App.3d 667, 	671.) 	Here each agency proceeded with
its 	case 	involving CSU's 	discipline 	of Moseley.
In PERB proceedings, 	the ALJ 	conducted the hearing 	and heard
the testimony of the witnesses. 	In his proposed decision, 	PERB's
ALJ 	discredited 	the 	testimony of 	one 	CSU witness 	involving 	one 	of
the 	alleged 	incidents 	used by CSU 	in its 	discipline 	of 	Moseley.
Unlike 	the PERB ALJ, 	SPB's ALJ was 	not 	in a position to make 	any
credibility determinations 	from PERB transcripts. 	Rather, 	SPB's
decision is 	based on PERB's 	record, 	without the benefit of
hearing 	the 	testimony of 	the witnesses.
The SPB's 	use of PERB's 	record to decide 	its 	case, 	with the
knowledge that PERB was proceeding with 	its 	case, 	is 	contrary to
the 	promotion of 	judicial 	economy 	and prevention of 	inconsistent
judgments. 	Even though PERB 	expended 	its 	resources 	in preparing
the 	record 	and had the 	benefit 	of 	making 	credibility
determinations, 	the SPB proceeded with its decision. 	Clearly
this 	result does 	not 	serve the purposes 	of 	collateral 	estoppel.
For the reasons 	that follow, 	I 	find the doctrine of
collateral 	estoppel 	is 	inapplicable due 	to the different 	issues
decided 	by 	PERB 	and 	the 	SPB 	and 	the 	different burdens 	of
production placed upon the parties 	by PERB and the 	SPB. 	Further,
I 	decline 	to 	apply the doctrine 	of 	collateral 	estoppel 	due 	to the
15

inherent differences 	in the 	jurisdiction of 	PERB and the 	SPB, 	as
well 	as 	public 	policy considerations.
In The People v. 	June Leora Lopes 	Sims 	(1982) 	32 Cal.3d 468,
the 	court 	found that 	collateral 	estoppel 	applies 	if:
"(1) 	the 	issue necessarily decided at the previous 	[proceeding]
is 	identical 	to the one which 	is 	sought to be relitigated;
(2) 	the previous 	[proceeding] 	resulted in a 	final 	judgment on the
merits; 	and 	(3) 	the party against whom collateral 	estoppel 	is
asserted was 	a party or 	in privity with a party at 	the prior
proceeding." 	(Id. 	at p. 	484.) 	For cases 	involving the
collateral 	estoppel 	effect of administrative decisions, 	the
California 	Supreme Court 	in People v. 	Sims 	adopted the 	standards
-
formulated by 	the 	United 	States 	Supreme 	Court 	in United 	States 	v.
Utah Construction and Mining Company 	(1966) 	384 U.S. 	394. 	There,
the 	United 	States 	Supreme Court 	stated:
When an administrative 	agency 	is 	acting 	in a
judicial 	capacity 	and 	resolves 	disputed
issues 	of 	fact properly before 	it which the
parties 	have had 	an adequate 	opportunity 	to
litigate, 	the courts have not hesitated to
apply res 	judicata 	to 	enforce repose,
(Id, at p. 	422.)
Thus, 	collateral 	estoppel 	effect will be granted to an
administrative 	decision made 	by 	an agency 	acting 	in a 	judicial
capacity 	to 	resolve properly 	raised disputed 	issues 	of 	fact where
the parties 	had 	a 	full 	opportunity to 	litigate 	those 	issues.
The 	doctrine of 	collateral 	estoppel 	can apply to bar
relitigation only 	if 	the 	identical 	issue was 	decided at 	the
previous proceeding. 	(People v. 	Sims, 	supra, 	32 Cal.3d 468;-
16

Bronco Wine Company v. 	Frank A. 	Logolusa Farms, 	et al. 	(1989)
214 Cal.App.3d 699.) 	In the present case, 	the issue decided by-
PERB 	is 	not 	identical to the 	issue decided by the SPB. 	As
recognized by PERB and the courts, 	the 	issue of whether cause
exists 	for discipline 	is 	different 	than determining the
underlying motivation for discipline. 	(Department of
Developmental Services 	(1987) 	PERB Decision No. 	619-S; 	Department
of Transportation 	(1984) 	PERB Decision No. 	459-S; 	City of Albany
v. 	PERB 	(1977) 	395 N.Y.S.2d 502 	[96 LRRM 2500]; 	City of
Hackensack v. 	Winner 	(1978) 	162 N.J. 	Super. 	1 	[392 A.2d 187],
affd. 	(1980) 	82 N.J. 	1 	[410 A.2d 1146].)
The 	Board 	is 	the 	expert 	agency 	charged with 	interpreting 	and
administering 	HEERA 	and possesses 	initial 	jurisdiction 	to 	resolve
and 	remedy unfair practice 	charges 	in three public 	sector
jurisdictions.2 As 	exclusively 	stated 	in 	section 	3563.2 	of 	EERA:
The 	initial determination as 	to whether the
charges 	of 	unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate the purposes 	of 	this 	chapter,
shall be 	a matter within the 	exclusive
jurisdiction of the board. 	. 	. 	.
2The immediate case arises under HEERA 	(Gov. 	Code, 	sec. 	3560
et 	seq.), 	a comprehensive 	statutory scheme enacted in 	1978 to
govern 	labor relations 	in the 	University of 	California 	and
California 	State 	University 	systems. 	The Board also 	administers
the Educational Employment Relations Act 	(EERA) 	(Gov. 	Code, 	sec
3540 	et 	seq.) 	governing 	labor relations 	between public 	schools
and 	community 	college districts 	and 	their employees, 	and the
Ralph C. 	Dills Act 	(Dills Act) 	(Gov. 	Code, 	sec. 	3512 et seq.)
governing 	state 	employer-employee 	labor 	relations.
17

Sections 	3571 	and 	3571.1 	define unfair practices 	by the 	employer
and 	employee organization. 	Here 	the 	complaint 	alleges 	a
violation of section 3571(a) 	and 	(b):
It 	shall be unlawful 	for the higher 	education
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
Further, 	section 	3563.3 	provides 	the remedies 	available 	to the
Board:
The board 	shall have the power to 	issue 	a
decision 	and 	order 	directing 	an offending
party 	to 	cease 	and desist 	from 	the unfair
practice 	and 	to 	take 	such affirmative 	action,
including, 	but not limited to, 	the reinstate-
ment 	of 	employees with or without back pay,
as will 	effectuate the policies 	of this
chapter.
The California 	Supreme 	Court 	has 	recognized 	the 	initial
jurisdiction of 	PERB 	to 	investigate 	and 	adjudicate 	unfair
practices. 	(San Diego Teachers Association, 	v. 	Superior Court of
San Diego County 	(1979) 	24 Cal.3d 	1, 	12; 	Pacific Legal Foundation
v. 	Brown, 	supra. 	29 Cal.3d 	168, 	175.) 	Based on its 	initial
jurisdiction and 	expertise, 	PERB 	investigated the unfair practice
charge, 	issued a complaint, 	conducted an evidentiary hearing,
issued a proposed decision, 	and 	finally a Board decision. 	In
holding that CSU had violated 	section 	3571(a) 	and 	(b) 	of 	HEERA,
the 	Board 	found 	that discipline was 	motivated by 	the 	employee's
protected 	activity. 	Pursuant 	to 	Novato 	Unified 	School 	District
18

(1982) 	PERB Decision No. 	210, 	the Board found Moseley had 	stated
a prima 	facie violation by 	showing that: 	(1) 	he had 	engaged 	in
protected conduct known to CSU; 	(2) 	CSU took adverse actions
against Moseley; 	and 	(3) 	the adverse actions were taken because
of 	Moseley's 	exercise of protected activities. 	Under Novato 	once
a 	charging party has 	established a prima 	facie violation, 	the
burden 	shifts 	to 	the 	employer to 	show that 	it would have 	taken
the 	adverse 	action regardless 	of 	the 	employee's participation 	in
protected activity. 	In PERB Decision No. 	805-H, 	the Board 	found
Moseley 	established a prima 	facie violation, 	but 	that 	CSU had
failed 	to present 	any 	credible 	evidence 	it would have 	taken the
disciplinary 	actions 	against 	Moseley 	in the 	absence 	of 	his
protected 	activity.
In contrast to PERB, 	the SPB's 	authority under Article VII,
section 3, 	subdivision 	(a) 	of the California Constitution is 	to
"review disciplinary actions" 	against 	civil 	service 	employees.
However, Article VII, 	section 4, 	subdivision (h) 	specifically
exempts 	officers 	and 	employees 	of 	the University of 	California
and California 	state 	colleges 	from civil 	service. 	While 	the 	CSU
employees 	are 	exempted 	from civil 	service, 	the 	SPB 	authority over
CSU 	employees 	is 	derived 	from the 	Education Code. 	Section 	89538
of the Education Code provides, 	in pertinent part:
Notice of dismissal, 	demotion, 	or suspension
for cause of 	an employee 	shall be 	in writing,
signed by 	the 	chancellor 	or his 	designee 	and
be 	served on the 	employee, 	setting forth a
statement of causes, 	the events or trans-
actions 	upon which the causes 	are based, 	the
nature 	of 	the penalty and the 	effective date,
and a 	statement 	of 	the 	employee's 	right to
19

answer within 	20 	days 	and 	request 	a 	hearing
before 	the 	State 	Personnel 	Board.
Further, 	section 89539 provides 	the 	employee the right to request
a hearing before the SPB. 	Section 89539 	states, 	in pertinent
part:
Any employee dismissed, 	suspended, 	or demoted
for cause may request 	a hearing by the 	State
Personnel Board by 	filing 	such a request, 	in
writing, 	with the Board within 20 days 	of
being 	served with the notice. 	The request
may be 	on the grounds 	that the 	required
procedure was 	not 	followed; 	that there 	is 	no
ground for dismissal, 	suspension, 	or
demotion; 	that the penalty is 	excessive,
unreasonable, 	or discriminatory; 	or that the
employee did not do 	the 	acts 	or omissions
alleged as 	the 	events 	or transactions 	upon
which the 	causes 	are based; 	or that the acts
or omissions 	alleged as 	the 	events 	or trans-
actions 	upon which 	the 	causes 	are 	based were
justified.
The 	State 	Personnel 	Board 	shall hold a
hearing, 	following the 	same procedure as 	in
state 	civil 	service proceedings 	and 	shall
render a decision affirming, 	modifying or
revoking the action taken. 	In a hearing, 	the
burden of proof 	shall 	be 	on the party taking
the dismissal 	action.
As 	explicitly 	stated, 	the burden of proof 	shall be on the party
taking the disciplinary action -- CSU. 	Further, 	the grounds 	for
the 	request 	for 	a 	hearing 	are 	limited 	to 	determining whether 	the
discipline was proper. 	Thus, 	under the SPB, 	the issue is whether
or not CSU had 	cause 	for 	its 	discipline 	of Moseley. 	The 	SPB's
limited 	statutory 	jurisdiction 	over 	CSU 	employees 	does 	not
include 	a 	determination whether 	the 	discipline was 	motivated 	by
the 	employee's protected 	activity. 	The Board 	is 	not deprived of
jurisdiction merely because 	the 	SPB 	addressed 	the 	issue 	of
20

unlawful 	motivation. 	The 	question of whether the discipline was
being used 	by CSU 	to 	retaliate 	against Moseley 	for his 	protected
activities has 	no place 	in the 	SPB proceeding. 	(See Town of
Dedham v. 	Labor Relations Commission 	(1974) 	312 	N.E.2d 	548
[86 	LRRM 2918].) 	Rather, 	this determination is within PERB's
expertise and 	initial 	jurisdiction. 	Even 	if 	the 	SPB determines
that CSU had cause to 	impose the discipline, 	CSU's 	conduct may
still violate 	HEERA if 	the 	discipline was 	motivated by the
employee's 	protected 	activity 	and would 	not 	have 	been 	imposed 	if
the 	employee 	had not 	engaged 	in protected 	activity.
In addition to the different 	issues 	that 	the 	SPB 	and 	PERB
decide, 	the burden of producing evidence upon the parties 	is
different. 	In People v. 	Sims. 	supra. 	32 Cal.3d 468, 	485, 	the
court 	recognized 	the 	doctrine 	of 	collateral 	estoppel 	may 	not
apply where 	the 	two proceedings 	have different burdens 	of proof.
Following this rule, 	the court, 	in a recent decision, 	refused to
apply 	collateral 	estoppel where 	the 	issue 	had been adjudicated 	in
an 	earlier proceeding by a preponderance 	of 	the 	evidence
standard, 	and the burden of proof 	in the 	subsequent proceeding
was 	a 	clear and 	convincing 	evidence 	standard. 	(Department 	of
Social Services v. 	David P. 	(1989) 	211 Cal.App.3d 660.) 	In the
SPB hearing, 	Education Code 	section 89539 provides 	that CSU has
the 	burden of proving that 	its 	disciplinary action was proper.
If CSU fails 	to 	satisfy 	its 	burden, 	then the SPB must 	find that
the discipline was 	improper. 	Simply 	stated, 	CSU 	loses 	and the
employee wins. 	In contrast, 	PERB requires that the charging
21

party, 	the employee 	in this 	case, 	present evidence 	showing that
the discipline was 	imposed because 	of 	his 	exercise 	of protected
activities. 	If 	the 	charging party 	fails 	to 	satisfy this 	burden,
then PERB must 	find that 	the 	discipline was 	not 	motivated 	by 	the
employee's protected activity. 	In other words, 	the 	employee
loses 	and CSU wins. 	Due to the different 	issues 	and burdens 	of
producing evidence, 	I would 	find that the doctrine of 	collateral
estoppel 	should not 	apply as 	the 	conditions 	set 	forth 	in
People v. 	Sims, 	supra, 	32 Cal.3d 468 are not satisfied.
. . .'
Regardless 	of whether the 	technical 	requirements 	for the
application of 	collateral 	estoppel 	are met, 	the doctrine 	should
not be applied due to public policy considerations. 	(See, 	e.g.
Arasimo 	Settemo 	Lucido v. 	The 	Superior Court of 	Mendocino County
(1990) 	51 Cal.3d 335.) 	In Lucido v. 	Superior Court, 	supra. 	the
court held that 	the doctrine 	of 	collateral 	estoppel 	did not 	bar
prosecution of 	the 	defendant 	despite 	a probation revocation
hearing 	conducted prior to 	the 	criminal 	trial 	based on the 	same
underlying conduct. 	Although the 	technical 	requirements 	of
collateral 	estoppel were 	satisfied, 	the 	court held 	that 	the
efficiencies 	of 	applying 	collateral 	estoppel were 	outweighed 	by
the 	importance of preserving the 	criminal 	trial process 	as 	the
exclusive 	forum 	for determining guilt or 	innocence. 	This 	finding
was 	based 	on the distinctions 	and different public 	interests
involved 	in the 	revocation hearing 	and 	criminal 	trial.
Similarly, 	in the present case, 	the distinctions between PERB and
the 	SPB, 	as well 	as 	the different public 	interests 	served by the
22

two 	agencies, 	outweigh the 	efficiencies 	of 	applying collateral
estoppel. 	As 	stated by the court 	in Sylvester Tipler v. 	E. 	I.
duPont deNemours and Company. 	Inc. 	(6th Cir. 	1971) 	443 F.2d 	125,
128:
Neither 	collateral 	estoppel 	nor 	res 	judicata
is 	rigidly applied. 	Both rules 	are qualified
or 	rejected when 	their application would
contravene 	an 	overriding public 	policy 	or
result 	in manifest 	injustice. 	. . .
The 	SPB was 	established as 	the 	tribunal 	to 	administer and
enforce the civil service statutes. 	(Cal. 	Const., 	art. 	VII
[formerly art. 	XXIV].)3 The purpose of the California civil
service 	system 	is 	to promote 	efficiency 	and 	economy 	in 	state
government. 	(State Compensation Insurance Fund v. 	Ray L. 	Riley
(1937) 	9 Cal.2d 	126, 	134.) 	The use of merit in the appointment,
promotion, 	and demotion of 	civil 	service 	employees 	serves 	to
abolish the 	so-called 	spoils 	system and, 	at the 	same time,
increase 	the 	efficiency 	of 	the 	civil 	service by 	assuring 	the
employees 	that 	appointment 	and promotion will 	be 	the 	award 	of
faithful 	and honest 	service, 	and demotion or discipline will 	be
based on cause. 	(John F. 	Skelly v. 	State Personnel Board, 	et al.
(1975) 	15 Cal.3d 	194, 	210; 	Steen v. 	Board of Civil Service
Commissioners 	(1945) 	26 Cal.2d 716, 	722; 	see also, 	Town of Dedham
v. 	Labor Relations Commission, 	supra, 	312 N.E.2d 548.)
Former-Article XXIV of 	the California Constitution, 	which
established the merit 	system of 	state 	civil 	service, 	was 	adopted
3Article XXIV of 	the 	California 	Constitution was 	amended 	and
later repealed. 	In 	1976, 	Article VII was added, 	which was
substantially 	identical 	to 	former Article XXIV.
3
23

in 	1934. 	As 	the Court of Appeal 	stated 	in California 	State
Employees 7
- 	Association v. 	Spencer Williams 	(1970) 	7 Cal.App.3d
390, 398:
Article XXIV was 	presented 	to 	California
voters 	in 	1934 	as 	a means 	of 	establishing a
merit 	system of 	employment which would
eliminate the 	spoils 	system. 	[Citation.] 	It
was 	not presented as 	an organic 	blueprint 	for
the 	structure of 	agencies within the 	state's
executive branch.
At 	that 	time 	the 	state government was 	a 	relatively 	simple
structure. 	However, 	in the ensuing years, 	the Legislature
created 	new 	statutes 	and 	new public 	agencies 	to 	administer 	those
statutes. 	Specifically the Legislature enacted HEERA, 	EERA, 	and
the 	Dills 	Act 	and 	created 	PERB 	to 	administer these 	three 	statutes
to protect public 	sector 	employees 	in their 	labor relations 	with
public 	sector employers. 	Generally, 	courts do not construe
constitutional provisions 	"so 	as 	to prevent 	legislative 	action
adjusted 	to 	growing 	needs 	and 	the 	changed 	condition of 	the
people." 	(Pacific Legal Foundation v. 	Brown. 	supra, 	29 Cal.3d
168, 	196, 	citing Veterans' 	Welfare Board v. 	Jordan 	(1922) 	189
Cal. 	124, 	143.) 	Also in Pacific Legal Foundation v. 	Brownf 	the
California 	Supreme Court 	stated 	the 	provisions 	of Article VII
"shall 	not 	be 	construed 	to preclude 	the 	Legislature 	from 	adopting
the 	collective 	bargaining 	salary 	setting process 	established 	in
SEERA 	[Dills Act]." 	This 	same rule applies 	to the present case
involving disciplinary 	action. 	The 	court 	recognized 	that 	the
jurisdiction between the 	SPB 	and PERB may overlap and that, 	in
such cases, 	the 	court 	should harmonize the disparate procedures.
24

As 	a 	New Jersey 	court observed 	in 	reviewing 	a 	conflict 	between
the 	rulings 	of 	a 	civil 	service 	commission and public 	employment
relations 	board 	in that 	state:
The 	inquiry is properly not 	so much which
statutory 	scheme prevails 	in the 	context 	of
merit promotions, 	but rather how each can be
harmonized 	to 	give 	them reasonable 	and 	full
effect. 	[Citations.] 	Each agency operates
under different 	statutory 	schemes, 	but not to
defeat 	each other's 	authority.
(City of Hackensack v. 	Winner, 	supra,
162 N.J. 	Super.1, 	23-24 	[392 A.2d 187], 	affd.
(1980) 	82 N.J. 	1 	[410 A.2d 	1146].)
As 	recognized by Pacific 	Legal 	Foundation v. 	Brown, 	supra,
2 9 	Cal.3d 	168, 	PERB and the SPB are not 	in competition with each
other. 	Each agency was 	established to 	serve a different, 	but not
inconsistent, 	public purpose. 	The 	SPB was 	granted 	jurisdiction
to 	review disciplinary actions 	of 	civil 	service 	employees 	to
protect 	these 	employees 	from politically partisan mistreatment 	or
other 	arbitrary 	action 	inconsistent with 	the merit principle
embodied 	in Article VII. 	(Skelly v. 	State Personnel 	Boardf
supra, 	15 Cal.3d 	194, 	202.) 	On the other hand, 	PERB was created
as 	the 	expert 	administrative 	agency 	in 	labor relations 	to 	govern
labor 	relations 	in the 	University 	of 	California 	and California
State University systems, 	as well 	as 	the 	state employer-employee
labor 	relations 	and 	labor relations 	between public 	school 	and
community 	college districts 	and their 	employees. 	Although 	the
disciplinary 	actions 	taken 	in violation of 	HEERA transgress 	the
merit principle of the civil 	service 	system, 	the Legislature
nonetheless 	created PERB to administer the HEERA, 	EERA, 	and Dills
Act.
- -
25

Absent a 	jurisdictional bar, 	a determination arising under
one 	statute 	should 	not 	automatically be 	binding when 	a 	similar
question arises 	under another 	statute. 	(See 	State 	Personnel
Board v. 	Fair Employment and Housing Commission, 	supra. 	39
Cal.3d 422; 	Tipler v. 	E. 	I. 	duPont deNemours and Company. 	Inc..
supraf 	443 	F.2d 	125.) 	As 	stated by the New Jersey Supreme Court:
There is no reason, 	absent an occlusive
statutory bar, 	for an administrative agency
to be obtuse 	to the 	genuine 	concerns 	of 	other
administrative 	agencies 	which possess
concurrent 	jurisdiction over 	the 	same 	subject
matter. 	This 	is 	especially so where the
controversy 	is 	multidimensional 	and
legitimately 	touches 	the 	competence 	of 	more
than one agency. 	In that context, 	admini-
strative 	agencies 	should 	never be 	encouraged
to 	engage 	in 	internecine 	struggles 	for
jurisdictional hegemony. 	The unilateral 	and
possessive 	assumption of 	jurisdiction by 	one
agency to the exclusion of 	another, 	perhaps
more 	suitable, 	agency creates the risk that,
although 	a 	many-sided 	controversy 	may 	be 	laid
to 	rest 	in whole or 	in part 	from the vantage
of a 	single administrative agency, 	in the
process 	other 	important 	interests 	may be
mishandled 	or 	neglected.
(Monmouth County N.O.W. 	v. 	Matawan Regional
Board of Education 	(1978) 	77 N.J. 	514, 	531
[391 	A.2d 	899.)
Here, 	the purposes, 	requirements, perspective, 	and configuration
of 	the Education Code and 	HEERA vary. 	While discipline based on
protected activity 	is 	an unfair practice 	under HEERA, 	discipline
based on cause, 	without reference to protected activity, 	is 	not
prohibited under the 	Education Code. 	Similarly as 	the
Legislature 	did not 	render 	exclusive 	jurisdiction to 	either 	the
SPB or PERB with respect to CSU employees, 	and an individual 	is
not 	prevented 	from proceeding under both 	the 	SPB 	and PERB 	(see
26

Tipler v. 	E. 	I. 	duPont deNemours and Company. 	Inc.. 	supra.
- -
443 	F.2d 	125), 	the decision under one 	statute is 	not 	intended to
automatically 	bar a 	decision under 	another 	statutory 	scheme.4 In
State 	Personnel 	Board v. 	Fair Employment 	and Housing Commission.
supra, 3 9 Cal.3d 422, 	the court held that where two agencies have
concurrent 	jurisdiction, 	both agencies 	can exercise 	their
jurisdiction to protect 	their respective 	rights.
The 	distinctly 	separate 	nature 	of 	these
[SPB's 	and 	Fair 	Employment 	and 	Housing
Commission's] 	contractual 	and 	statutory
rights 	is 	not vitiated merely because both
were violated as 	a 	result 	of 	the 	same 	factual
occurrence. 	And 	certainly no 	inconsistency
results 	from permitting both 	rights 	to 	be
enforced 	in 	their 	respectively 	appropriate
forums. 	(Id. 	at p. 	443 	citing Alexander v.
Gardner-Denver Co. 	(1974) 	415 U.S. 	36, 	49-
50.)
Despite the 	fact that 	the 	technical 	requirements 	of
collateral 	estoppel have not been satisfied, 	I 	find that the
inherent differences 	in the 	jurisdiction of 	PERB 	and the 	SPB 	and
public 	policy 	considerations 	justify 	PERB's 	refusal 	to 	apply
collateral estoppel to the SPB's decision. 	Accordingly, 	I would
not apply the doctrine of 	collateral 	estoppel 	in this 	case. 	Such
4The difference 	in the 	operations 	of 	PERB 	and SPB 	is 	another
reason why an employee's 	application to 	either 	agency 	is 	not
considered an election against 	or 	a waiver of 	the 	employee's
right to 	file an action at 	the other agency. 	(See Town of 	Dedham
v. 	Labor Relations Commission, 	supra. 	312 N.E.2d 548 where the
- - 	-	court 	compared 	the 	Civil 	Service 	Commission and 	Labor 	Relations
Commission.)
27

an application would effectively preclude PERB from exercising

its jurisdiction.

28

Shank, 	Member, 	dissenting: 	The majority correctly sets
forth the doctrine of collateral 	estoppel 	as 	it applies 	to
administrative agencies, 	yet then strains, 	through a distortion
of 	existing 	case 	law and 	statutory 	language, 	to 	avoid 	application
of 	the doctrine to the 	instant case. 	For the reasons 	that
follow, 	I would grant collateral 	estoppel 	effect to the decision
of the State Personnel Board 	(SPB) 	issued April 	13, 	1990 	and 	set
aside our own decision issued April 	17, 	1990.
The majority's 	analysis 	is 	based on the 	false premise 	that
the 	SPB 	and 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
do 	not have 	concurrent 	jurisdiction to 	resolve the 	issue 	of 	the
impact 	of 	improper motive 	on 	the 	discipline 	imposed 	on John
Moseley 	(Moseley). 	The majority recognizes 	that the 	SPB's
authority 	to 	determine 	the validity 	of 	discipline 	imposed 	on 	a
California State University 	(CSU) 	employee 	is 	derived 	from
Education Code 	section 	89539 which 	specifically provides, 	in
pertinent part, 	that: 	(1) 	an employee suspended for cause may
request a hearing before the SPB; 	(2) 	the request 	for a hearing
may be 	on the 	ground that 	the discipline was discriminatory; 	and,
(3) 	the 	SPB will 	conduct a hearing 	following the 	same procedures
it follows 	in state civil 	service proceedings. 	Thus, 	under
section 89539, 	the SPB had 	jurisdiction to hold a hearing to
determine 	the 	impact 	of 	the 	improper motive 	on the discipline
imposed on Moseley; 	i.e., 	whether the discipline was 	imposed 	for
a 	discriminatory 	reason.
PERB also had 	jurisdiction to determine the 	impact 	of
improper 	motive 	on the 	discipline 	imposed 	on Moseley.
29

Specifically, 	PERB has 	jurisdiction to determine whether the
discipline was 	imposed 	for 	a discriminatory 	reason 	in violation
of 	the Higher Education Employment Relations Act 	(HEERA).1 HEERA
section 3563.2 	states:
The 	initial determination as 	to whether the
charges 	of 	unfair practices 	are 	justified,
and, 	if so, what remedy is necessary to
effectuate the purposes 	of this 	chapter,
shall 	be 	a matter within the 	exclusive
jurisdiction of the board. 	. 	. 	.
(Emphasis 	added.)
The 	majority 	construes 	the 	above-quoted 	(and 	emphasized)
language to create 	"preemptive" 	jurisdiction in PERB, 	holding
that: 	"Where 	the matter before the 	SPB 	arguably 	involves 	an
unfair practice, 	it 	is 	incumbent upon the 	SPB to 	stay or continue
its 	proceedings 	until 	remedies 	before 	PERB have been exhausted."
(Maj. 	opn., 	p. 	7.) 	The majority cites no authority that
specifically 	supports 	its 	assumption that when the 	Legislature
granted PERB 	"initial" 	and 	"exclusive 	jurisdiction," 	it 	intended
anything other than to 	exhort our courts 	to 	apply the doctrine 	of
exhaustion of 	administrative 	remedies 	and defer to 	PERB 	cases
solely within its 	statutory purview. 	In fact, 	the cases 	relied
HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to the
Government Code. 	Under HEERA section 3571(a), 	it is an unfair
labor practice 	for the higher education employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
30
1HEERA

upon by 	the majority to 	support 	its 	theory that PERB's
jurisdiction preempts 	that 	of 	the 	SPB 	address 	only 	the 	issue 	of
whether 	a plaintiff 	is 	bound to 	exhaust his 	or her administrative
remedies 	before 	PERB before pursuing an action 	in 	superior 	court.
In each of 	the 	cases 	cited, 	San Lorenzo Education Association v.
Larry H. 	Wilson 	(1982) 	32 Cal.3d 841 	[187 Cal.Rptr. 	432];
California School Employees Association, 	et al. 	v. 	Travis Unified
School District, 	et al. 	(1984) 	156 Cal.App.3d 242 	[202 Cal.Rptr.
699]; 	Nancy J. 	Wygant v. 	Victor Valley Joint Union High School
District 	(1985) 	168 Cal.App.3d 319 	[214 Cal.Rptr. 	205];2 and
California 	School 	Employees Association v. 	Azusa 	Unified 	School
District, 	et al. 	(1984) 	152 Cal.App.3d 580 	[199 Cal.Rptr. 	635],
the 	appellate 	court 	found 	that 	PERB 	did 	not have 	initial
exclusive 	jurisdiction of 	the 	claims 	before 	the 	superior 	court,
2In Wygant. 	a case arising under EERA, 	the court held:
[T]hat 	PERB does 	not have 	exclusive 	initial
jurisdiction where 	a plaintiff's 	allegations
are 	confined 	solely 	to 	a 	unilateral 	violation
of 	Education Code 	section 45028 	by a 	school
district. 	The Government Code 	expressly
provides 	that 	"[n]othing 	contained 	[in
Government Code 	sections 	3540-3549.3] 	shall
be deemed to 	supersede 	other provisions 	of
the 	Education Code 	and the rules 	and
regulations 	of public 	school 	employers 	which
establish 	and 	regulate 	tenure 	or a 	merit 	or
civil service system . 	. 	. 	." 	(Gov. Code,
section 3540.) 	. 	. 	.
(Id.. p. 	323.)
Although HEERA does 	not 	contain 	similar 	language, 	the policy
underlying Government Code 	section 	3540, 	that applicable
provisions 	of 	the 	Education Code 	are 	not 	to be 	superceded by
PERB's 	exclusive 	initial 	jurisdiction, 	supports 	a 	conclusion that
PERB's 	exclusive 	jurisdiction 	should not 	be 	construed 	as 	all
inclusive.
31

and, 	therefore, 	exhaustion of administrative remedies before PERB
was not required. 	In William Leek, 	et al. 	v. 	Washington Unified
School District 	(1981) 	124 Cal.App.3d 43 	[177 Cal.Rptr. 	196], 	the
appellate 	court 	found 	the 	superior 	court properly 	dismissed 	the
case before 	it based 	on the plaintiff's 	failure 	to 	exhaust
administrative remedies before PERB. 	In San Diego Teachers
Association v. 	Superior Court of San Diego County 	(1979) 	24
Cal.3d 	1, 	12 	[100 Cal.Rptr. 	757] 	the Supreme Court held the
superior 	court was 	barred 	from 	intervening 	in a 	strike 	as 	the
district 	had 	not 	exhausted 	its 	administrative 	remedies 	before
PERB, 	which had 	initial 	exclusive 	jurisdiction to decide 	if 	the
strike was an unfair labor practice and, 	if 	so, 	what remedies 	to
seek.
In all 	of 	the cases 	cited by the majority, 	the 	issue of
PERB's 	"initial" 	and 	"exclusive 	jurisdiction" 	was discussed
within the 	context 	of whether 	a 	court 	had 	jurisdiction 	to 	decide
an 	issue 	that 	one party 	claimed was 	within PERB's 	statutory
jurisdiction. 	None of the 	cases 	relied upon by the majority
address 	PERB's 	jurisdiction vis-a-vis 	another 	administrative
agency with 	overlapping 	statutory 	authority 	to 	decide 	an 	issue
that 	PERB 	itself may decide 	in 	its 	own proceedings.
Nevertheless, 	through a 	leap 	in logic, 	and without citing any
statutory authority whatsoever, 	the majority concludes: 	"If 	the
courts must defer to PERB's 	exclusive 	jurisdiction, 	so must 	an
administrative 	agency."
The 	cases 	that do address what happens 	in case of 	conflict
between two administrative agencies, 	each of which has 	statutory
32

authority to address 	a particular 	issue, 	suggest a resolution
quite different than that adopted by the majority. 	In Pacific
Legal Foundation, 	et al. 	(PLF) 	v. 	Edmond G. 	Brown. 	Jr. 	(1981)
29 Cal.3d 	168 	[172 Cal.Rptr. 	487], 	the California Supreme Court
held 	that the 	State Employer-Employee 	Relations Act3 was 	not
unconstitutional, 	because 	the 	collective bargaining process
established 	by 	the Act 	did not 	conflict with the 	general 	merit
principle 	of 	civil 	service 	employment 	enunciated 	in Article VII
of 	the California 	Constitution. 	The 	court 	found that 	although
the 	authority of 	the 	SPB 	and PERB may overlap 	to 	some 	extent,
there 	is 	a 	substantial 	area 	in which 	the 	jurisdiction of 	the 	two
boards 	does 	not overlap. 	The court held that 	familiar rules 	of
construction require 	an attempt 	to 	harmonize 	the 	disparate
procedures 	rather than to 	invalidate one or the other, 	and that
any 	conflicts 	which may 	arise between the 	two 	agencies 	can be
resolved 	either by 	administrative 	accommodation between the 	two
agencies 	themselves 	or by 	sensitive 	application of 	evolving
judicial principles. 	(PLF v. 	Brown. 	supra, 	at p. 	200.)
The majority distinguishes PLF v. 	Brown. 	supra, 	29 Cal.3d
168, 	arguing that the court 	in that 	case only addressed a
potential 	conflict 	between the 	SPB's 	constitutional 	authority 	and
PERB's 	statutory authority. 	The majority 	implies 	that, 	based on
the 	initial, 	exclusive nature of PERB's 	jurisdiction, 	the SPB
3The Ralph C. 	Dills Act 	(Dills Act), 	formerly known as the
State Employer-Employee Relations Act, 	is 	codified at Government
Code 	section 	3512 	et 	seq. 	The Dills Act was 	adopted by the
Legislature in 	1977, 	to provide formal collective bargaining
rights 	to 	state 	employees.
33

must defer to PERB 	in cases 	of 	conflict unless 	the SPB 	is 	acting
under 	its 	constitutional 	authority.
Nowhere in PLF v. 	Brown, 	supra, 	29 Cal.3d 	168, 	does the
California 	Supreme 	Court 	find 	that 	the 	constitutional 	nature 	of
the 	SPB's 	authority 	is 	justification 	for overriding PERB's
"exclusive" 	jurisdiction and 	applying the 	doctrine 	of 	collateral
estoppel. 	In fact, 	the 	"exclusive" 	nature of PERB's 	jurisdiction
is 	not 	specifically discussed by the court at all. 	The 	court
does 	quote 	from the New Jersey case of 	City of 	Hackensack v.
Winner 	(1978) 	162 N.J. 	Super. 	1 	[392 A.2d 187, 	198], 	affd. 	(1980)
82 N.J. 	1 	[410 A.2d 	1146], 	in which the New Jersey Court stated:
The 	inquiry 	is 	properly not 	so much which
statutory 	scheme prevails 	[over the other],
but 	rather how each 	can be 	harmonized 	to 	give
them reasonable and 	full 	effect. 	[See
citations.] 	Each agency operates 	under
different statutory schemes, 	but not to
defeat 	each other's 	authority.
The 	fact 	that we have here 	a 	conflict of 	overlapping 	statutory
authority, 	as 	opposed to the constitutional versus 	statutory
conflict addressed in PLF v. 	Brown. 	supra, 	29 Cal.3d 	168, 	is not
determinative as 	to whether collateral 	estoppel 	applies.
Furthermore, 	as 	recognized by the California 	Supreme Court
in PLF v. 	Brown. 	supra. 	29 Cal.3d 	168, 	many areas of PERB's
- -
unfair practice 	jurisdiction do 	not 	overlap with 	the 	SPB's
"disciplinary action" 	jurisdiction at all. 	For example, 	PERB has
exclusive 	jurisdiction to 	determine whether or 	not 	its
constituents 	have 	violated unfair practice 	laws 	by 	failing 	to
meet 	and confer 	in good 	faith. 	Even in the 	case of 	employer
reprisals 	against 	an employee 	for protected activity, 	PERB would
34

have 	"exclusive" 	jurisdiction to determine whether an unfair
practice has 	occurred, 	so 	long as 	the reprisal 	in question did
not take the 	form of a disciplinary action. 	Thus, 	in 	"pure"
unfair practice cases, 	PERB has 	exclusive 	jurisdiction. 	On the
other hand, 	sometimes 	a 	cause of action constitutes 	not only an
unfair practice 	charge, 	but also a violation of 	the principle of
"just cause" 	discipline. 	In these 	"hybrid" 	unfair practice
cases, 	under existing precedent, 	PERB does not have 	"exclusive"
jurisdiction, 	but has 	"concurrent" 	jurisdiction with whatever
agency has 	been 	charged with making 	the 	determination 	of 	whether
the principle of 	"just cause" 	discipline has been violated.
The 	California 	Supreme 	Court has 	indicated 	its 	intention 	to
"construe the 	relevant provisions 	to permit an accommodation of
the 	respective 	tasks 	of 	both 	the 	State Personnel 	Board and PERB."
(PLF v. 	Brown, 	supra. 	at p. 	198.) 	Thus, 	PERB has been charged
-
with 	resolving 	any 	conflicts 	which 	may 	arise by 	administrative
accommodation or, 	failing that, 	by 	sensitive application evolving
judicial principles. 	(Id. 	at p. 	200.)
In State Personnel Board, 	et al. 	v. 	Fair Employment and
Housing Commission, 	et al. 	(1985) 	39 Cal.3d 422 	[217 Cal.Rptr.
16], 	the California Supreme Court held that the Department of
Fair 	Employment 	and 	Housing 	and 	the 	Fair 	Employment 	and 	Housing
Commission 	(FEHC) 	have 	jurisdiction concurrently with 	the 	SPB
over disciplinary 	actions 	and 	examinations. 	In discussing the
potential 	situation where 	the 	two agencies 	arrive 	at 	conflicting
adjudications 	concerning the 	same 	set of 	facts, 	the court noted:
[T]he 	Fair 	Employment 	and 	Housing Commission
should be 	sensitive 	to 	the 	constitutional
35

functions 	of 	the 	State 	Personnel 	Board 	and
should take 	into 	account 	any prior
determinations 	of 	the board when a matter
previously 	decided 	by 	that 	body 	comes 	before
the Commission. 	The degree of deference that
should be 	given to 	the board's 	findings 	and
conclusions will 	depend 	on the 	individual
case. 	If the Commission is 	satisfied that a
particular 	issue presented 	to 	it was
sufficiently 	explored 	and 	decided 	by 	the
board, 	then it may, 	in comity, 	bar
relitigation of the issue. 	. 	. 	.
(Id. 	pp. 	424-425.)
PERB 	itself 	has 	applied 	collateral 	estoppel 	not 	only 	in
cases wherein the 	SPB was 	acting under 	its 	constitutional 	grant
of 	authority 	(State 	of 	California 	(Department 	of 	Developmental
Services) 	(hereafter Department of Developmental 	Services) 	(1987)
PERB Decision No. 	619-S; 	Department of Personnel Administration
(Moore) 	(1989) 	PERB Decision No. 	772-S), 	but also in cases where
the 	jurisdictional 	accommodation 	involved 	disciplinary 	rulings 	by
local personnel 	commissions. 	(See 	Kern County Office of
Education 	(1987) 	PERB Decision No. 	630; 	San Diego Unified School
District 	(1987) 	PERB Decision No. 	631.)
In Department of Developmental Services, 	supra, 	PERB
Decision No. 	619-S, 	a union activist was dismissed 	for allegedly
falsifying time records. 	The 	SPB 	administrative 	law 	judge 	(ALJ)
specifically 	found 	that 	the 	employee was 	an officer 	in the 	union
and an active 	job 	steward. 	These 	findings were 	in response to a
contention that the dismissal was 	for an improper motive, 	to wit:
retaliation 	for union activities. 	Relying upon Christo Tom
Bekiaris 	v. 	Board of 	Education of the City of Modesto 	(1972)
6 Cal.3d 575 	[100 Cal.Rptr. 	16], 	the SPB ALJ had determined that
he was required, 	under California 	law, 	to consider the alleged
1 1
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unlawful 	retaliation. 	(See also William Robinson v. 	State
Personnel Board 	(1979) 	97 Cal.App.3d 994 	[159 Cal.Rptr. 	222].)
Adopting the test 	set forth 	in The People v. 	June Leora 	Lopes
Sims 	(1982) 	32 Cal.3d 468 	[186 Cal.Rptr. 	77] 	for application of
collateral 	estoppel, 	PERB 	in Department of 	Developmental
Services. 	supra, 	found the doctrine applicable 	in the case before
it 	and 	found 	the 	charging party barred 	from proceeding 	before
PERB on a retaliation theory. 	In reaching its 	conclusion, 	PERB
noted:
Ordinarily, 	the Personnel Board is concerned
only with the 	issue 	of 	cause 	for termination
and not the underlying motivation, 	a quite
different question. 	Here, 	Mr. 	Pimentel
asserted before 	the 	Personnel 	Board 	that 	his
termination was 	in retaliation 	for 	engaging
in protected conduct. 	Once Mr. 	Pimentel made
that assertion, 	the 	issue of motivation was
squarely 	before 	and was 	necessarily 	decided
by the Personnel Board. 	It 	is 	the precise
same issue which Mr. Pimentel, 	. 	. 	. now
attempts 	to relitigate here,
(p. 	19.)
(See also Kern County Office of 	Education 	(1987) 	PERB Decision
No. 	630.)
Just 	as 	PERB 	applied the doctrine 	of 	collateral 	estoppel 	in
the case in Department of Developmental Services. 	supra. 	PERB
Decision No. 	619-S, 	PERB 	is 	bound by the guidelines 	set 	forth in
People v. 	Sims. 	supra, 	32 Cal.3d 468 	to apply that doctrine to
the case under consideration. 	Under People v. 	Sims. 	supra.
collateral 	estoppel 	may be 	applied 	to preclude 	relitigation 	of 	an
issue decided in another proceeding when: 	(1) 	the agency is
acting in a 	judicial 	capacity; 	(2) 	it resolves disputed 	issues 	of
37

fact properly before 	it; 	and 	(3) 	the parties have had an adequate
opportunity 	to 	litigate 	such disputed 	issues.
The 	issue 	of 	the 	impact of 	improper motive 	on the 	adverse
action 	taken against Moseley was 	decided 	in the 	SPB 	proceeding
and 	is 	identical to that 	litigated before PERB. 	The 	SPB applied
the 	"but 	for" 	test 	enunciated 	in Bekiaris 	v. 	Board of 	Education.
supra. 	6 	Cal.3d 575. 	The SPB determined that the discipline was
imposed 	both 	for the 	stated 	causes 	and 	for unstated, 	improper
causes. 	Specifically, 	the SPB 	found that Moseley's 	acts were
childish, 	needless, 	willful, 	insubordinate and discourteous. 	The
SPB 	further 	found, 	based on the 	findings 	of 	the PERB
administrative 	law judge, 	that 	"improper motive" 	was 	involved 	in
the taking of 	the adverse action. 	Applying Bekiaris 	v. 	Board of
Education, 	supra, 	the SPB concluded that the actions 	of Moseley
were 	such 	that 	the 	discipline would have 	been 	imposed 	even 	in the
absence 	of 	improper motive.
In analyzing the same 	facts, 	PERB applied its own, 	similar
test 	for determining whether the 	discipline 	against 	Moseley
constituted 	reprisal 	and/or discrimination 	in violation of 	HEERA
section 	3571(a) 	and 	(b). 	Under the test enunciated in Novato
Unified School District 	(1982) 	PERB Decision No. 	210, 	once the
charging party has 	made 	a prima 	facie 	showing that 	raises 	an
inference that 	the employer's 	actions were motivated, 	at 	least 	in
part, 	by the 	employee's 	exercise of activities protected under
the Act, 	the burden shifts to the employer to show, 	if 	it can,
that 	it would have 	taken the 	same 	action regardless 	of 	the
protected activity or its 	improper motive. 	(Id.. 	p. 	14.) 	In
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this 	case, 	PERB 	found that 	the discipline 	imposed on Moseley was
imposed 	for 	an 	improper motive 	and 	that 	the 	University 	failed 	to
prove that 	it would have taken the 	same 	action absent 	the
improper motive.
Thus, 	both the 	SPB 	and PERB 	considered and decided 	the
impact 	of 	improper motive 	on the discipline 	imposed 	on Moseley,
reaching opposite 	conclusions.4 What 	is 	determinative here 	is
that 	the 	SPB 	issued 	its 	final 	decision prior to 	PERB's 	decision
on the 	same 	issue becoming 	final.
The doctrine 	of 	collateral 	estoppel 	is properly applied here
since: 	(1) 	the 	issue decided in the prior proceeding is
identical to that 	sought to be relitigated; 	(2) 	the previous
proceeding resulted 	in a 	final 	judgment on the merits; 	and 	(3)
the party against whom 	collateral 	estoppel 	is 	asserted was 	a
party or 	in privity with 	a party 	in the prior proceeding.
(People v. 	Sims. 	supra. 	32 Cal.3d 468, 	484; 	The People v. 	Alvin
Taylor 	(1974) 	12 Cal.3d 686 	[117 Cal.Rptr. 	70].)
Finality 	of 	Adjudication
The 	SPB proceeding did result 	in a 	final 	judgment 	on the
merits, 	prior to PERB's 	own decision becoming final. 	In
4Although 	I 	find that 	PERB 	is 	required to 	apply the doctrine
of 	collateral 	estoppel 	to the narrow issue decided by the 	SPB, 	I
note 	that 	the 	same 	controlling 	legal principles 	and 	case 	law
should have been followed by the 	SPB. 	The 	SPB 	received notice
that 	a PERB proceeding on an 	identical 	issue was 	in 	its 	final
stages when the parties 	to 	the 	SPB hearing 	stipulated 	to
introducing 	the 	transcript 	of 	the 	PERB hearing 	into 	evidence 	in
lieu of 	taking testimony. 	In the 	interest of 	administrative
accommodation 	(PLF v. 	Brown, 	supra. 	29 Cal.3d 200), 	and in accord
with 	the policies 	of 	judicial 	economy 	and 	efficiency 	(People 	v.
Simsr 	supra and 	(Department of Developmental Services), 	supra.
PERB Decision No. 	619-S), 	the SPB 	should have stayed its hearing
pending 	a decision by PERB.
39

Department of Developmental Services. 	supra, 	PERB Decision No.
619-S 	the Board affirmed the ALJ's 	analysis 	that 	for purposes 	of
application of the 	collateral 	estoppel doctrine, 	an SPB decision
is 	final when issued by the SPB itself. 	In the present case, 	the
proposed decision of 	an 	SPB ALJ was 	formally adopted by 	the 	SPB
as 	its own decision on April 	13, 	1990, 	four days before PERB
issued its April 	17, 	1990 decision, 	having considered the
exceptions 	and responses 	to 	the proposed decision of 	the 	PERB
ALJ. 	Therefore, 	at the time the PERB decision was 	issued, 	the
SPB 	decision had become 	final 	for purposes 	of 	application of 	the
collateral 	estoppel doctrine.
Requirement 	of 	Privity
The party against whom the doctrine 	of 	collateral 	estoppel
is 	asserted must have been a party or 	in privity with 	a party 	to
the prior proceeding. 	In the present case, 	CSU seeks 	to assert
the 	doctrine 	against 	the 	State 	University Police Association
(SUPA or Association). 	The Supreme Court has addressed the
requirement of privity as 	follows:
"Privity 	is 	essentially a 	shorthand 	statement
that 	collateral 	estoppel 	is 	to be 	applied 	in
a given case; 	there is 	no universally
applicable definition 	of privity."
[Citations.] 	The concept refers 	"to a
relationship between the party 	to 	be 	estopped
and 	the 	unsuccessful party 	in the prior
litigation which is 	'sufficiently close' 	so
as 	to 	justify application of 	the doctrine 	of
collateral 	estoppel."
(People v. 	Sims, 	supra. 	32 Cal.3d 468, 	486-487.)
In Department of Developmental Services. 	supra. 	PERB
Decision No. 	619-S, 	the Board held that where the 	individual
employee comes before SPB, 	and the Association, 	as his
40

representative, 	comes before PERB, 	the charging party in the SPB
action, 	i.e., 	the individual employee, 	"has a clear identity of
interest with 	[the Association] 	in the 	case before the PERB."
(Department of Developmental Services, 	supra. 	at p. 	21.) 	In this
case, 	the 	section of HEERA alleged to have been violated 	is 	one
which protects 	the 	individual 	rights 	of 	an employee 	as 	opposed to
those of the Association. 	Here, 	as 	in Department of
-
Developmental 	Services. 	supra. 	the alleged violation of
associational 	rights 	is derivative, 	and therefore relies 	upon a
finding of violation of the 	individual's 	rights. 	Clearly, 	where
the 	individual's 	rights 	are 	sought to be vindicated, 	and the
Association acts 	as 	his/her representative 	in the proceeding, 	the
individual has 	a 	clear 	interest 	in the outcome of 	the proceeding.
Thus, 	the charging party 	in the SPB 	case 	is 	sufficiently aligned
with 	the Association in this 	case 	to apply the doctrine of
collateral 	estoppel.
Application of 	Collateral 	Estoppel 	to 	an Administrative 	Hearing
Collateral 	estoppel 	effect may be given to decisions 	of
administrative agencies when: 	(1) 	the agency acts 	in a 	judicial
capacity; 	(2) 	it resolves disputed 	issues of 	fact properly before
it; 	and 	(3) 	the parties have had an adequate opportunity to
litigate 	such disputed 	issues. 	In the present case, 	the SPB was
acting 	in its 	judicial 	capacity in holding a hearing, 	in taking
evidence, 	and in issuing a 	judicial determination. 	The SPB also
resolved disputed 	issues 	of 	fact properly 	before 	it;
specifically, 	pertinent to the instant matter, 	whether CSU's
response 	to 	Moseley's 	actions would not have occurred 	"but 	for"
41

CSU's 	improper motive. 	Further, 	the parties had adequate
opportunity to 	litigate these 	issues 	before the SPB, 	particularly
since 	both parties 	stipulated 	to 	introduction and use 	of 	the 	PERB
transcript 	in 	lieu of 	testimony 	on the 	issues 	litigated 	before
PERB. 	Based upon the 	foregoing, 	I would apply the doctrine of
collateral 	estoppel 	to 	the 	narrow issue decided by 	the 	SPB 	as 	to
the propriety 	of 	the discipline 	in 	light 	of 	the 	allegations 	of
CSU's 	improper motive, 	and 	I 	would 	set aside our prior ruling
that CSU violated 	section 3571(a) 	and 	(b) 	of HEERA.
A 	clean 	application of 	the 	collateral 	estoppel 	doctrine
based on the 	order of 	issuance 	of 	the 	two decisions would be 	in
accord with 	the 	not 	so 	subtle hint by the California 	Supreme
Court 	that 	agencies 	should 	find 	a way to 	avoid 	issuing
inconsistent 	adjudications. 	By affirming our 	earlier decision
and declining to 	apply 	collateral 	estoppel, 	the majority 	ignores
PERB precedent, 	rejects 	the 	clear message 	from the 	courts,
creates 	confusion among 	the parties 	who 	are 	now 	faced with
conflicting 	administrative decisions, 	and 	invites 	an unnecessary
and 	avoidable 	appeal.
Member Camilli joined in this Dissent.
42