Regents of the University of California (Student Body Presidents' Council) (PERB A107HA)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF CALIFORNIA,
Employer,
Appellant,
and
UNIVERSITY 	OF CALIFORNIA STUDENT
BODY 	PRESIDENTS' 	COUNCIL,
Student 	Representative,
Appellee.
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__________________ )
Case 	No. 	SF-HS-1
PERB 	Order 	No. 	Ad-107a-H
ADMINISTRATIVE APPEAL
July 	21, 	1981
Appearances: 	Claudia 	Cate, 	Attorney 	for 	the 	Regents 	of 	the
University 	of 	California; 	J. 	Allan 	Dailey 	for 	the 	University 	of
California 	Student 	Body 	Presidents' 	Council.
Before Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION AND 	SUPPLEMENTAL 	ORDER
The 	Regents 	of 	the 	University 	of 	California 	(hereafter
University 	or 	Regents) 	have 	filed 	an 	appeal 	with 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board) 	seeking
reversal 	of 	the 	regional 	director's 	determination 	that 	a 	charge
alleging 	a 	violation 	of 	section 	3597(a) 	of 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(hereafter 	HEERA)l 	be
entertained. 	In 	a 	letter 	to 	the 	regional 	director 	dated
February 	4, 	1981, 	the 	University 	of 	California 	Student 	Body
lGovernment 	Code 	section 	3560 	et 	seq. 	All 	statutory
references 	are 	to 	the 	California 	Government Code 	unless
otherwise 	specified.

Presidents'
	Council
	(hereafter
	Council)
	indicated
	that
	the
University
	had
	denied
	the 	Council
	its
	asserted
	right
	to
participate
	in 	the
	meeting
	and
	conferring 	sessions
	between
	the
Statewide
	University 	Police 	Association
	(hereafter
	SUPA)
	and
the
	University.
	The
	Council
	relies
	on
	section
	3597(a)
	of
	HEERA
which
	provides:
Subject 	to
	prov1s1ons
	of
	subdivision 	(d),
	in
all
	meeting
	and
	conferring
	between
	higher
education
	employers
	and
	employee
organizations 	representing 	student 	service
or
	academic
	personnel,
	a
	student
representative 	shall
	have
	the
	right
	to
	be
notified
	in 	writing
	by
	the
	employer
	and
	the
employee
	organizations 	of 	the
	issues
	under
discussion.
	A
student 	representative
	shall
have
	the
	right
	to
	be
	present
	and
	comment
	at
reasonable
	times 	during
	meeting
	and
conferring
	between
	the
	employer
	and
	suchemployee
	organizations.
The
	Council 	formally 	requested
	that
	PERB
	"take
	jurisdiction
	in
this
	matter 	to 	provide
	whatever 	remedial
	action
	it
	deems
appropriate." 	Thereafter,
	the
	regional 	director 	notified
	the
Council, 	the 	University
	and
	SUPA
	to
	submit
	briefs
	on
	the 	issue
of
	PERB's
	jurisdiction
	and
	the 	process
	which
	should
	b~
	utilized
should
	jurisdiction
	be
	asserted. 	Briefs
	were
	submitted	
by 	the
Council
	and
	the
	University.
	SUPA
	did 	not 	submit
	a
	brief.
The
	regional 	director
	considered 	the
	arguments 	urged
	by
	the
parties
	in
	their 	briefs
	and,
	on March
	12, 	1981,
	issued 	his
decision 	concluding
	that
	"PERB
	has
	clear
	and
	explicit 	authority
to 	deal 	with 	alleged 	violations 	of 	section
	3597" 	and
	ordered
that
	a
	hearing 	be 	conducted.
2

Thereafter
	on March
	23, 	1981,
	the
	University
	submitted 	the
instant
	appeal
	of
	the
	regional
	director's
	determination.
	On
April
	23, 	1981,
	the
	Board
	ordered
	that
	the
	hearing 	scheduled
	in
the
	instant
	case
	be
	stayed
	pending
	issuance
	of
	this
	decisiqn.2
In
	accordance 	with 	the
	discussion
	below,
	we
	find
	that
	the
Board
	has
	authority
	to
	entertain
	the
	Council's 	alleged
violation
	of 	section
	3597(a).
	The 	Board
	affirms
	the
	regional
director's
	deciston
	and
	orders
	that
	the
	parties
	proceed
	to
hearing.
In 	seeking
	reversal
	of
	the
	regional
	director's
	decision,
the
	Regents
	argue 	in
	their 	brief 	that
	the 	Board's
	authority
under
	section
	3563(h)
	does 	not
	contain
	a
	grant 	of
	authority
	to
hold
	hearings
	and
	therefore,
	the
	Board
	cannot 	hold
	a
	hearing 	in
the
	instant
	case. 	Section
	3563(h)
	provides
	PERB
	with 	the
authority
	to"
..•
	investigate 	unfair 	practice
	charges
·.2£
alleged 	violations
	of
	this
	chapter,
	and
	to 	take
	such
	action
	and
make 	such
	determinations 	in
	respect
	of
	such
	charges 	or 	alleged
violations
	as 	the 	board
	deems
	necessary 	to
	effectuate
	the
policies
	of
	this 	chapter."
	[Emphasis
	supplied.]
	In 	our 	view,
this
	provision 	plainly
	empowers
	the
	Board
	to 	investigate
	the
violation
	of
	HEERA
	asserted	
by 	the 	Council
	and
	to
	make 	a
determination 	with
	respect 	to
	that 	allegation. 	Utilization
	of
2The 	Regents 	of 	the 	University 	of 	California 	(4/23/81)
PERB
	Order 	No. 	Ad-107.
3

the 	Board's 	administrative 	hearing 	procedure 	is 	likewise
authorized 	in 	the 	instant 	case 	by 	reference 	to 	section 	3563(g)
of 	HEERA 	which 	invests 	the 	Board 	with 	the 	authority 	to 	hold
hearings, 	subpoena 	witnesses, 	administer 	oaths, 	and 	take 	the
testimony 	or 	deposition 	of 	any 	person. 	Thus, 	in 	light 	of 	this
statutory 	power 	and 	in 	conformity 	with 	PERB 	rules 	32165 	through
322303 	which 	set 	forth 	the 	agency's 	hearing 	processes 	and
procedures, 	the 	Board 	finds 	that 	where 	a 	violation 	of 	section
3597 	has 	been 	alleged, 	assertion 	of 	the 	Board's 	jurisdiction 	is
warranted.
The 	Regents 	dispute 	this 	bas.is 	for 	PERB's 	jurisdiction 	and
argue 	that 	the 	Board's 	"general" 	authorization 	to 	hold 	hearings
under 	section 	3563(g) 	cannot 	be 	used 	as 	it 	would 	violate 	a
general 	rule 	of 	administrative 	law 	that 	an 	administrative
agency 	cannot 	alter 	or 	enlarge 	its 	statutory 	mandate, 	citing
Addison 	v. 	Department 	of Motor 	Vehicles. 4 	We 	find 	that 	the
Regents' 	reliance 	on 	Addison 	is 	misplaced. 	Unlike 	the 	case 	at
hand, 	Addison 	dealt 	with 	an 	administrative 	agency's 	enactment
of 	regulations 	which 	the 	court 	held 	exceeded 	the 	agency's
statutory 	authority. 	In 	this 	case, 	however, 	the 	Board 	has
enacted 	no 	rules 	or 	regulations 	specifically 	designed 	to
accommodate 	the 	type 	of 	alleged 	violations 	of 	HEERA 	as 	raised
3pERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative 	Codef 	title 	8, 	section 	31000 	et 	seq.
4 {19 7 7 ) 	6 9 	Ca 1. App . 3 d 	48 6 .
4

by
	the
	Council.
	Indeed,
	the
	Board
	is
	confident
	that,
consistent
	with
	the
	statutory
	mandate
	as 	expressed
	in
subsections
	3563(g) 	and
	(h),
	its
	authority
	to
	take
	appropriate
action,
	including 	the
	conducting
	of 	hearings, 	is
	not
	dependent
on
	the 	Board's 	adoption
	of
	rules
	or
	regulations
	specific
	to
alleged
	violations
	of 	section
	3597.
	The
	hearing 	ordered 	in
	the
instant
	case
	may
	proceed
	in 	conformity 	with
	PERB's
	general
hearing 	processes
	and
	procedures.
The
	Regents
	also
	argue
	that
	it
	would 	be
	inconsistent
	with
the 	purposes
	of
	the
	HEERA
	to
	assert 	jurisdiction
	in
	this
	case.
While
	the
	Regents
	correctly
	point
	out
	that 	section
	3560(e)
	is
concerned 	with
	"relations
	between 	each
	higher 	education
employer
	and
	its
	employees"
	and
	students 	are
	neither
	employers-
nor 	employees,
	we
	note
	that
	one
	of
	the 	purposes
	found
	in
section
	356l(a) 	provides 	in
	part 	that
	11
[i]t
	is
	the
	further
purpose
	of
	this
	chapter 	to 	provide
	orderly
	and
	clearly
	defined
procedures 	for
	meeting
	and
	conferring
	•..
11
	[emphasis
supplied].
	The
	Legislature 	in 	section
	3597
	has
	clearly
	defined
the 	procedures 	to
	be
	followed 	for 	student
	participation
	in 	the
meeting
	and
	conferring 	process,
	and
	it
	follows
	that,
	contra
	to
the 	Regents•
	position,
	the 	purposes 	of 	the
	HEERA
	will
	be
fulfilled	
by	
PERB's
	assertion 	of
	jurisdiction
	in 	cases 	alleging
a
	violation 	of 	section
	3597.
The 	Regents 	have
	also
	argued
	that
	even
	if
	the 	Board 	has
jurisdiction 	to 	hear 	the 	case
	it
	would 	be 	a
	futile 	act 	as 	the
5

Board 	has 	no 	authority 	to 	order 	a 	remedy. 	They 	conclude 	that
the 	lack 	of 	a 	specific 	statutory 	penalty 	in 	section 	3597(a) 	is
fatal 	to 	the 	Board's 	ability 	to 	fashion 	a 	remedy. 	We 	point 	out
first 	that 	the 	Regents 	reliance 	on 	People 	v. 	Harter 	Packing
Co.5 	is 	misplaced. 	The 	Harter 	Packing 	Co. 	case 	dealt 	with 	an
attempt 	by 	the 	director 	of 	agriculture 	to 	impose 	greater
sanctions 	than 	those 	specifically 	stated 	in 	the 	statute. 	That
situation 	is 	not 	relevant 	to 	the 	instant 	case. 	The 	Board's
authority 	to 	fashion 	a 	remedy 	appropriate 	to 	the 	situation
comes 	from 	subsections 	(h) 	and 	(m) 	of 	section 	3563 	which 	allow
the 	Board 	to 	take 	actions 	necessary 	to 	effectuate 	the 	purposes
of 	the 	Act 	and 	is 	not 	dependent 	on 	specifically 	authorized
statutory 	penalties.
ORDER
Based 	on 	the 	foregoing, 	the 	appeal 	by 	the 	Regents 	of 	the
University 	of 	California 	of 	the 	regional 	director's 	decision 	is
DENIED. 	The 	Board's 	Order 	in 	The 	ReQents 	of 	the 	University 	of
California 	(4/23/81) 	PERB 	Order 	No. 	Ad-107, 	which 	stayed 	the
hearing 	in 	this 	case, 	is 	hereby 	vacated 	and 	the 	regional
5(1958) 	160 	Cal.App.2d. 	464.
6

director
	is
	ordered
	to
	set
	a
	hearing 	in 	the
	above-captioned
case
;..
-----------"--'--""------'_;;;...-By:
	Barbar
a
	D.
	Moore,
	Member	
Harry
	Gl 	c 	,
	Chair
7