Gavilan Joint Community College District (PERB 1177E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
e
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	GAVILAN
COLLEGE 	CHAPTER #2 70,
Charging 	Party,
v.
GAVILAN JOINT COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1883
PERB Decision No. 	1177
November 	18, 	1996
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Appearances: 	California 	School 	Employees Association by Stephen
Pearl, 	Field Director, 	for California School Employees
Association and its Gavilan Chapter #270; 	Ruiz 	& Schapiro by
David E. 	Falik, 	Attorney, 	for Gavilan Joint Community College
District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by the
California 	School 	Employees Association and 	its 	Gavilan College
Chapter #270 	(CSEA) 	of a Board agent's dismissal 	(attached
hereto) 	of 	its unfair practice charge. 	In the charge, 	CSEA
alleged 	that 	the 	Gavilan Joint 	Community 	College 	District
(District) 	violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by making 	false
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government Code. 	EERA section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:

statements 	and misrepresentations 	during 	negotiations.
(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.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including CSEA's 	original 	and amended unfair practice 	charge, 	the
Board agent's 	warning and dismissal 	letters, 	CSEA's 	appeal 	and
the District's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself 	in accordance with the
following 	discussion.
DISCUSSION
CSEA agreed 	to 	the 	elimination 	of 	a 	tax-sheltered annuity
and 	cash back benefit plan 	(TSA/cash back plan) 	as part 	of 	the
resolution 	of 	its 	contract 	negotiations 	with the District» 	CSEA
alleges 	that 	it 	agreed to 	the 	elimination of 	this plan only
because 	the District 	represented 	that 	the plan would also be
eliminated 	for the 	other employees 	of 	the District. 	CSEA claims
it 	first 	learned 	in January 	1996 	that 	the District 	had not
eliminated the plan for other employees. 	CSEA charges 	that 	the
District violated 	its 	duty 	to bargain 	in good 	faith by making
22

false 	statements 	and misrepresentations 	during negotiations. 	The
Board agent 	dismissed CSEA's 	charge 	for 	failure 	to 	demonstrate 	a
violation under PERB's 	"totality of 	the 	conduct" 	test.2 CSEA
asserts 	that 	the District's misrepresentations 	concerning 	the
TSA/cash back plan must 	be 	reviewed 	in 	the 	total 	context 	of
negotiations, 	including PERB's 	findings 	of 	other violations by
the District. 	When viewed in this 	light, 	CSEA alleges, 	"the
misrepresentation 	is 	simply one more 	example 	of 	an employer with
a 	history 	of 	bad 	faith bargaining."
Initially, 	review of 	the warning and dismissal 	letters
leaves 	it unclear as 	to whether CSEA's 	charge 	is 	timely. 	The
limitation period described in EERA section 3541.5(a)(I)3 is
mandatory and serves 	as 	a 	jurisdictional 	bar to 	charges 	filed
outside 	the prescribed period. 	(Palm Springs 	Unified School
2In 	considering an allegation 	that 	there has 	been a 	failure
to bargain 	in good 	faith, 	PERB may review the 	totality of 	the
bargaining 	conduct 	to 	determine whether 	there 	are 	sufficient
indicators 	of 	an 	intent 	to 	frustrate 	or avoid 	the bargaining
process. 	(Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51.) 	The presence of a single 	indicator of bad
faith 	is 	generally 	insufficient 	to meet 	the 	"totality 	of 	the
conduct" 	test. 	(Regents of the University of California 	(19 85)
PERB Decision No. 	520-H.)
3EERA section 3541.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	do either of 	the 	following:
(1) 	Issue a complaint 	in respect 	of any
charge 	based upon an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
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District 	(1991) 	PERB Decision No. 	888.) 	The Board agent warned
CSEA that its April 8, 	1996, 	charge, 	which referenced
misrepresentations 	by 	the District 	occurring 	on 	September 	5,
1995, 	was 	untimely because no evidence 	of belated discovery had
been provided. 	In its 	amended charge, 	CSEA asserts 	that 	it 	only
discovered 	the 	District's 	misrepresentations 	in January 	1996 	when
the 	TSA/cash back plan was 	first 	eliminated 	for bargaining unit
members, 	but 	not 	eliminated for other employees.
CSEA's 	assertion that 	it 	did not 	discover 	the District's
alleged misrepresentations 	until 	January 	1996 	is 	logical. 	CSEA
alleges 	that 	the misrepresentations 	by 	the District 	in September
1995 	led CSEA to accept 	the 	factfinding panel 	report 	in November
1995, 	and subsequently agree 	to a 	contract which 	included
elimination of 	the TSA/cash back plan. 	The District 	cites
California State Employees' 	Association 	(Darzins) 	(1985) 	PERB
Decision No. 	546-S 	to point 	out 	that discovery of 	the 	legal
significance 	of 	conduct 	of which a party has knowledge does 	not
constitute 	belated discovery 	for purposes 	of 	EERA's 	statute 	of
limitations. 	However, 	this 	fails 	to address CSEA's logical
assertion that, 	since 	it was misled by the District 	in September,
it 	did not 	know that 	the District 	had made misrepresentations 	at
that 	time. 	The EERA statute 	of 	limitations begins 	to run when
the 	charging party knew or 	should have 	known of 	the 	alleged
unlawful 	conduct. 	(Fairfield-Suisun Unified School 	District
(1985) 	PERB Decision No. 	547.) 	Since CSEA did not know of 	the
alleged unlawful 	conduct 	until 	January 	1996, 	when 	it 	discovered
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that 	the 	TSA/cash back plan had not 	been 	eliminated 	for 	other
employees, 	its April 8, 	1996, 	unfair practice charge is timely.
On the merits, 	CSEA's brief appeal argues 	that 	the
District's misrepresentations, 	when considered in light 	of 	the
previous 	finding by a PERB administrative 	law judge 	(ALJ) 	that
the 	District 	engaged 	in bad 	faith bargaining and anti-union
animus, 	is 	sufficient 	to demonstrate 	that 	the District has acted
unlawfully 	in this 	case.
In Gavilan Joint 	Community College District 	(1996) 	PERB
Decision No. 	HO-U-613, 	a PERB ALJ found that 	the District 	engaged
in 	surface bargaining 	in violation 	of 	EERA section 	3543.5 	in 	its
negotiations with CSEA. 	In reaching 	this 	conclusion the ALJ
specifically noted 	that 	the 	case 	addressed whether 	the 	District
negotiated 	in good 	faith 	from 	the 	submission 	of 	CSEA's 	initial
bargaining proposal 	in September 	1993 	to 	the declaration of
impasse on July 28, 	1994. 	CSEA asserts 	that the alleged
misrepresentation is 	"one more 	example 	of 	an employer with a
history of bad faith bargaining" 	and, 	therefore, 	meets 	the
Board's 	"totality of 	the 	conduct" 	test when reviewed 	in light 	of
the 	earlier violations.
CSEA's 	simple 	reference 	to 	the 	earlier case 	fails 	to
demonstrate 	any 	relationship between 	the 	conduct 	addressed by 	the
ALJ in PERB Decision No. 	HO-U-613 	and the alleged violations 	in
the 	instant 	case. 	The mere 	statement 	of 	the 	fact 	that 	the
District 	was 	found 	to have 	engaged 	in 	surface bargaining more
than a year prior to 	the 	conduct 	at 	issue here does 	not 	lend
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support 	to the 	instant unfair practice 	charge. 	Therefore, 	CSEA's
appeal 	is without merit.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-1883 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Johnson's 	concurrence begins 	on page 	7.
Member Dyer's 	concurrence begins 	on page 	9.
66

JOHNSON, 	Member, 	concurring: 	The California School
Employees Association and 	its 	Gavilan College 	Chapter #270 	(CSEA)
alleged 	in 	its 	unfair practice 	charge 	that 	it 	agreed to 	the
elimination 	of 	the 	TSA/cash back plan during negotiations 	for a
successor agreement 	because 	the Gavilan Joint 	Community College
District 	(District) 	represented 	that 	the plan would also be
eliminated for the District's 	other employees. 	However, 	CSEA
later 	discovered 	that 	the 	District 	had not 	eliminated 	the 	plan
for other employees 	as 	it 	had represented.
The 	duty to bargain 	in good 	faith 	requires 	that 	the parties
negotiate with a genuine 	intent 	to 	reach agreement. 	Under the
"totality of 	the 	conduct" 	test, 	the Public Employment Relations
Board 	(Board) 	examines 	the 	entire 	course 	of negotiations 	to
determine 	whether 	the parties 	have 	negotiated with 	the 	required
subjective 	intent 	to 	reach agreement. 	(Regents 	of 	the University
of California 	(1985) 	PERB Decision No. 	520-H 	(Regents).) 	The
Board 	considers 	several 	factors 	under 	the 	totality 	of 	the 	conduct
test as 	indicative of bad faith bargaining, 	including: 	(1)
frequent 	turnover in negotiators, 	(2) 	negotiator's lack of
authority, 	(3) 	lack of preparation for bargaining sessions,
(4) 	missing, 	delaying or cancelling bargaining sessions, 	(5)
insistence 	on ground 	rules before 	negotiating 	substantive 	issues,
(6) 	taking an inflexible position, 	(7) 	regressive bargaining
proposals, 	(8) 	predictably unacceptable counterproposals, 	and
(9) 	repudiation of a tentative agreement. 	(Oakland Unified
School District 	(1996) 	PERB Decision No. 	1156.) 	The presence of
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a 	single 	indicia 	of 	bad 	faith has 	been 	found by 	the 	Board 	to be
insufficient 	to 	establish a violation of 	the duty 	to bargain 	in
good 	faith. 	(Regents.)
In matters 	involving public agencies, 	the public 	trust
creates 	an obligation 	for parties 	to 	deal 	openly and 	fairly with
each other. 	An 	intentional misrepresentation of 	a material
issue, 	relied upon by another party to 	its detriment, 	may result
in damage 	to both the public 	trust 	and the bargaining process.
Although a 	single 	indicia 	of 	bad 	faith bargaining 	does 	not
establish a prima 	facie 	case 	under 	the 	totality of 	the bargaining
conduct, 	I 	am concerned that 	such 	conduct 	could 	impair the public
trust. 	Parties 	engaged 	in labor negotiations 	should endeavor 	to
protect 	the 	public 	trust 	by 	striving 	honestly and 	fairly 	toward
an agreement.
88

DYER, 	Member, 	concurring: 	I write separately to clarify an
issue 	not 	addressed 	in 	the warning 	and dismissal 	letters.
As 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
agent 	noted, 	California School 	Employees Association and 	its
Gavilan College Chapter #270 	(CSEA) 	alleges 	that 	the Gavilan
Joint 	Community 	College 	District 	made 	certain misrepresentations
during 	factfinding. 	It 	is well 	established that 	during the
pendency 	of 	the 	Educational 	Employment 	Relations 	Act's 	(EERA)
statutory 	impasse procedure, 	the parties 	have no 	formal
obligation to meet and confer pursuant 	to EERA section 3543.5(c).
(Moreno Valley Unified School Dist, 	v. 	Public Employment
Relations Bd. 	(1983) 	142 Cal.App.3d 191, 	199-202 	[191 Cal.Rptr.
60] 	(Moreno Valley) 	(holding that although bargaining is part of
EERA's 	statutory 	impasse 	resolution procedures, 	obligation to
bargain 	exists 	under EERA section 	3543.5(e) 	rather than section
3543.5(c)).)1 The parties' 	duty to meet 	and confer in good faith
under EERA section 	3543.5(c) 	remains 	dormant until 	the 	conclusion
of 	EERA's 	statutory impasse resolution procedures. 	(Regents 	of
the University of 	California 	(1996) 	PERB Decision No. 	1157-H at
p. 	3 	(noting 	that post-factfinding 	changed circumstances may
1EERA section 3543.5 provides, 	in relevant part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(c) 	Refuse or fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
9
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revive duty).) 	CSEA's charge, 	therefore, 	raises a potential
violation of EERA section 3543.5 (e), 	rather than EERA section
3543.5(c).
Because 	the 	Board's 	analysis 	of 	bad 	faith under EERA
section 3543.5(e) 	is 	identical 	to 	its 	analysis 	of bad faith under
EERA section 3543.5(c), 	however, 	this distinction does not alter
the Board agent's 	conclusion. 	(See Moreno Valley, 	pp. 	199-202.)
10

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERS
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 10, 	1996
Stephen Pearl, 	Field Director
CSEA & Chapter 2 70
P.O. Box 64 0
San Jose, 	CA 	95106
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
California 	School 	Employees 	Association and 	its 	Chapter 	270
v. 	Gavilan Joint 	Community 	College District
Unfair Practice 	Charge No. 	SF-CE-1883
Dear Mr. 	Pearl:
The above-referenced unfair practice charge, 	filed April 	8, 	1996,
alleges 	the 	Gavilan 	Joint 	Community 	College 	District 	(District)
failed 	and 	refused 	to 	negotiate 	in 	good 	faith by making 	an
inaccurate 	statement 	during 	the 	course 	of 	negotiations 	and
impasse procedures. 	The 	California School 	Employees Association
(CSEA or Association) 	alleges 	this 	conduct violates 	Government
Code section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 	26, 	1996,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any 	factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless 	you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to July
8, 	1996, 	the 	charge would be dismissed.
I 	received an amended 	charge 	on July 	5, 	1996. 	The 	amended 	charge
reiterates 	the 	original 	charge 	and adds 	the 	following.
The Association notes 	that 	Administrative 	Law Judge Al 	Link 	found
evidence 	of 	bad 	faith bargaining 	and 	anti-union 	animus 	in prior
unfair practice 	charges 	between 	the parties.
CSEA also provides 	a declaration 	from Denise Jensen, 	former
Payroll 	Officer and CSEA Chapter 	President. 	Ms. 	Jensen's
declaration 	states 	in pertinent 	part:

Dismissal 	Letter
SF-CE-1883
July 10, 	1996
Page 2
6. 	On September 5, 	1995, 	I was present during
Factfinding when 	the 	district's 	appointee 	to
the Panel, 	Celia Ruiz, 	state that College
President, 	Glenn Mayle, 	had given instructions
to 	discontinue 	the 	TSA/cash back benefit 	for
non-represented 	college 	employees.
7. 	I 	further understood 	the benefit 	would be
discontinued 	for 	non-represented 	when 	the
benefit 	was 	discontinued 	for 	CSEA 	represented
employees.
By action of 	the Board of 	Trustees 	for 	the District, 	the TSA/cash
back benefit 	was 	discontinued 	for 	CSEA employees 	on 	January 	1,
1996.
Between January 2, 	199 6, 	and January 8, 	199 6, 	Larry Carrier, 	Dean
of 	Business 	Services 	instructed Ms. 	Jensen not 	to discontinue 	the
TSA/cash back benefit 	for non-represented 	employees. 	CSEA
asserts 	this 	was 	there 	first 	indication 	the benefit 	would not 	be
discontinued 	for 	non-represented 	employees.
The 	additional 	facts 	fail 	to 	assist 	CSEA in demonstrating 	a prima
facie violation 	of 	the duty 	to bargain. 	Under 	the 	"totality of
the 	conduct" 	test, 	the Association must 	show the District 	lacked
the 	subjective 	intent 	to reach an agreement. 	Ms. 	Jensen's
"understanding" 	and 	the District's 	failure 	to 	discontinue 	the TSA
benefit 	for 	non-represented 	employees 	does 	not 	demonstrate 	the
District 	lacked 	the 	intent 	to 	reach agreement. 	While 	an alleged
misrepresentation may 	indicate 	bad 	faith, 	a 	single 	indicia 	of bad
faith 	is 	insufficient 	to meet 	the 	"totality of 	the 	conduct" 	test.
(Regents 	of 	the University of 	California 	(1985) 	PERB Decision No.
520-H.)
Therefore, 	I 	am dismissing 	the 	charge based on 	the 	facts 	and
reasons 	contained herein and 	in my June 	26, 	1996 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board 	itself 	within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely 	filed, 	the original 	and five copies
of 	such appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before 	the 	close of business 	(5 	p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code 	of 	Civil 	Procedure 	section 1013 	shall 	apply.
The Board's 	address 	is:

Dismissal 	Letter
SF-CE-1883
July 10, 	1996
Page 3
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If 	you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each 	copy 	of 	a 	document 	served upon 	a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required 	contents 	and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when 	personally
delivered or deposited in 	the 	first-class mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an 	extension of 	time, 	in which to 	file 	a document
with 	the 	Board 	itself, 	must 	be 	in writing and 	filed with 	the
Board at 	the 	previously noted address. 	A request 	for an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request must 	indicate good cause 	for and, 	if known, 	the
position of 	each 	other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal 	Letter
SF-CE-1883
July 10, 	1996
Page 	4
Final 	Date
If 	no appeal 	is 	filed within 	the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By Kristin L. 	Rosi
Regional 	Attorney
Attachment
cc: 	Celia Ruiz

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 26, 	1996
Stephen Pearl, 	Field Director
CSEA & Chapter 2 70
P.O. 	Box 640
San Jose, 	CA 	95106
Re: 	WARNING 	LETTER
California 	School 	Employees 	Association and 	its 	Chapter 	270
v. 	Gavilan 	Joint 	Community 	College District
Unfair 	Practice 	Charge No. 	SF-CE-1883
Dear Mr. 	Pearl:
The above-referenced unfair practice charge, 	filed April 	8, 	1996,
alleges 	the 	Gavilan 	Joint 	Community 	College 	District 	(District)
failed and 	refused 	to 	negotiate 	in 	good 	faith by making 	an
inaccurate 	statement 	during 	the 	course 	of 	negotiations 	and
impasse procedures. 	The 	California 	School 	Employees Association
(CSEA or Association) 	alleges 	this 	conduct violates 	Government
Code section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(EERA).
Investigation 	of 	the 	charge 	revealed 	the 	following. 	CSEA is 	the
exclusive 	representative 	of 	a 	wall-to-wall 	unit 	of 	classified
employees 	of 	the District. 	CSEA and 	the District 	were parties 	to
a 	collective 	bargaining 	agreement 	which 	expired 	on 	September 	30,
1993. 	From September 1993 	through October 1995, 	the parties were
engaged 	in negotiations 	for a 	successor agreement.
In or about 	September 	1993, 	CSEA provided the District 	with its
initial 	contract proposal. 	In or about 	February 1994, 	the
District 	countered with 	its 	own 	contract 	proposal. 	The
District's 	proposal 	included a provision 	for the 	reduction 	of 	the
longevity 	steps 	and 	the 	elimination 	of 	a 	tax-sheltered 	annuity
(TSA) 	and 	cash back benefit plan.
On or about October 7, 	1994, 	the parties 	submitted a joint
request 	for 	impasse. 	Included 	in 	the 	impasse 	request 	as 	an
article 	remaining 	in dispute, 	was 	the 	elimination of 	the 	TSA/cash
back benefit 	option.
In 	or about 	July 	1995, 	the mediator 	recommended 	factfinding as 	an
appropriate means 	of 	resolving 	all 	outstanding 	issues.
Factfinding hearings were 	conducted on August 29, 	30, 	and

September 5, 	1995. 	On or about October 2, 	1995, 	the report and
recommendations 	of 	the 	factfinding 	panel 	were 	presented 	to 	the
parties.
Warning 	Letter
SF-CE-1883
June 26, 199 6
Page 2
CSEA alleges 	a 	primary 	roadblock 	in 	reaching agreement 	was 	the
TSA/cash back 	issue. 	CSEA asserts 	the District 	singled 	out
Association 	employees 	in 	order 	to 	diminish 	the Association 	in 	the
eyes 	of 	its members. 	In order 	to alleviate such fears, 	CSEA
contends 	it 	insisted 	the District 	exhibit 	"leadership" 	by 	first
eliminating 	the 	TSA/cash back 	option 	for all 	faculty and
supervisory 	employees. 	Negotiations 	for 	faculty and 	supervisory
employees 	were 	not 	yet 	underway.
The Association asserts District 	representative, 	Celia Ruiz,
stated during 	several 	executive 	sessions 	that 	the 	District
included 	elimination 	of 	the 	TSA/cash back 	in 	its 	initial 	proposal
to 	the 	faculty bargaining unit. 	The District 	did not make 	its
initial 	proposal 	to 	the 	faculty bargaining unit 	until 	December
1995. 	It 	is 	unclear whether the proposal 	eliminated 	the TSA/cash
back 	option.
CSEA also alleges Ms. 	Ruiz stated on September 5, 	1995, 	that
College President, 	Glenn Mayle, 	issued a directive 	to eliminate
TSA/cash 	back 	from administration, 	supervisory and 	confidential
employees. 	To date, 	the TSA/cash back option is 	in place 	for
supervisory 	employees.
In October 1995, 	the parties 	reached a tentative agreement, 	which
has 	since 	been 	ratified by both 	the 	District 	and 	the Association.
Based on the 	facts 	stated, 	the 	charge, 	as presently written,
fails 	to 	state a prima facie violation of 	the EERA, 	for the
reasons 	stated 	below.
CSEA asserts 	it 	relied upon 	the 	District's 	representations 	in
agreeing 	to 	eliminate 	the 	TSA/cash back 	option 	for 	its 	members.
The 	Association 	contends 	the 	District's 	misrepresentations
amount 	to 	a 	failure 	to bargain 	in good 	faith and 	requests 	PERB
reinstate 	the 	TSA/cash back 	option 	for 	CSEA members.
Pursuant 	to Government Code section 3541.5(a)(1), 	in order to be
timely 	filed, 	a 	charge must be 	filed within six months 	of 	the
conduct 	alleged 	to 	constitute 	the unfair practice. 	The 	statute
of 	limitations 	period 	commences 	to 	run when 	the 	charging party
knew 	or 	should 	have 	known 	of 	the 	conduct 	giving 	rise 	to 	the
alleged unfair practice 	charge. 	(Regents 	of 	the University of
California 	(1983) 	PERB Decision No. 	359-H.) 	The Association
states 	the District's 	misrepresentations 	took place 	in 	September
1995, 	beyond 	the 	six month statute 	of 	limitation. 	As 	CSEA does

not provide 	evidence 	of 	belated discovery, 	the 	charge 	is
untimely.
Warning 	Letter
SF-CE-1883
June 26, 	1996
Page 3
Even 	if 	considered 	timely 	filed, 	the 	charge 	fails 	to 	state a
prima 	facie violation of 	refusal 	to bargain 	in good 	faith. 	In
determining whether a party has 	violated EERA section 	3543.5(c),
PERB utilizes 	either 	the 	"per se" 	or 	"totality of 	the 	conduct"
test, 	depending 	on 	the 	specific 	conduct 	involved and 	the 	effect
of 	such 	conduct 	on 	the negotiating process. 	(Stockton Unified
School District 	(1980) 	PERB Decision No. 	143.) 	An allegation
that 	a 	party misrepresented 	facts 	during 	the 	negotiation process
has 	not 	been determined 	to be a 	"per 	se" 	violation of 	the 	duty to
bargain 	in good 	faith, 	and thus 	is 	properly analyzed under 	the
"totality of 	the 	conduct" 	test.
While 	the 	District 	represented 	it 	had made 	its 	initial 	proposal
to 	the 	faculty and 	supervisory units, 	CSEA was 	aware 	that 	it 	was
merely a proposal 	and not 	a 	commitment 	to 	eliminate 	the 	TSA/cash
back option, 	as 	negotiations 	with those 	two units 	had not 	yet
begun. 	Moreover, 	a 	single 	indicia of bad 	faith is 	insufficient
to meet 	the 	"totality of 	the 	conduct" 	test. 	(Regents 	of 	the
University of 	California 	(1985) 	PERB Decision No. 	520-H.) 	The
District's 	conduct 	viewed 	cumulatively 	fails 	to 	demonstrate 	a
lack of 	subjective 	intent 	to 	reach an agreement 	and hence 	fails
to satisfy the 	"totality of 	the 	conduct" 	test. 	(See San Ysidro
School District 	(1980) 	PERB Decision No. 	134.)
For these reasons 	the 	charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there 	are 	any 	factual 	inaccuracies
in 	this 	letter 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First 	Amended 	Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty 	of 	perjury by 	the 	charging party. 	The
amended 	charge 	must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge 	or withdrawal 	from you before July 8, 	1996. 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Kristin L. 	Rosi
Regional 	Attorney