Los Angeles Community College District (Watts) (PERB 0411E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

HOWARD O. WATTS,

Complainant, Case No. LA-PN-43

Ve PERB Decision No. 4l1l

LOS ANGELES COMMUNITY COLLEGE October 4, 1984

DISTRICT,

Respondent.

et ee ee ee ee ee ee a ee 8

Appearances: Howard O. Watts, representing himself;
Mary L. Dowell, Attorney for the Los Angeles Community College
District.

Before Tovar, Jaeger, and Burt, Members.
DECISION

JAEGER, Member: Howard O. Watts appeals the attached
decision of a Public Employment Relations Board hearing officer
granting the Respondent's motion to dismiss his charge alleging
a violation of section 3547 of the Educational Employment
Relations Act.

We have reviewed the hearing officer's decision in light of
the appeal and, finding it free from error, adopt it as the
decision of the Board itself.

ORDER
The public notice complaint in Case No. LA-PN 43 is

DISMISSED WITHOUT LEAVE TO AMEND.

Members Tovar and Burt joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
HOWARD O. WATTS,
Complainant,
v .
Los Angeles Community College
District,
Respondent.
Case No. 	LA-PN-43
ORDER GRANTING MOTION
TO DISMISS WITHOUT
LEAVE TO AMEND
Appearances: Howard 0. Watts, representing himself; Mary Dowell,
representing Los Angeles Community College.
Before: Patricia Hernandez, Hearing Officer.
DECISION
Complainant, Howard O. Watts, filed a public notice
complaint on September 3, 1982 and amended it on October 12,
1982. Complainant alleges that the Los Angeles Community
College District (District or respondent) failed to comply with
section 3547 (a) of the Educational Employment Relations Act
(BERA)
1
when on August 4 and 18, 1982, the District did not
1
The EERA is codified at Government Code section 3540 et
seq. 	All section references are to the government code unless
otherwise stated. 	Section 3547 (a) provides that:
All initial proposals of exclusive
representative and of public schools
employers, which relate to matters within
the scope of representation, shall be
presented at a public meeting of the public
school employer and thereafter shall be
ublic records.	p

make a verbal presentation of its initial proposals and
(2) when the District withheld pertinent documents from its
initial life insurance proposals precluding the public from
being fully informed of the issues.
The instant decision arises from the filing of a Motion to
Dismiss on November 24, 1982 by respondent alleging that the
complaint fails to state a prima facie allegation. 	The
complainant asserts that the motion is "illegal" because it was
filed concurrent with respondent's answer to public notice
complaint required by PERB Regulation 32930 (a) . 2
Complainant
further asserts that the motion should be denied and a hearing
scheduled because a board agent deemed a prima facie violation
existed.
DISCUSSION
PERB regulations neither expressly allow nor expressly
preclude the filing of a motion concurrent with the filing of
an answer . 	However, PERB regulation 32190 does allow for the
2PERB rules are codified at California Administrative
Code, Title 8, section 3100 et seq. 	PERB regulation 32930 (a)
provides that:
If the complaint states a prima facie
violation, the respondent or respondents
shall file with the regional office an
answer to the complaint not later than 15
days following service of the complaint by a
Board agent. Service and proof of service
of the answer pursuant to Section 32140 are
required .
2

filing of a pre-hearing motion 3
.
On December 2, 1982, after receipt of respondent's answer
and motion to dismiss, a board agent advised the parties that
pursuant to their desires there would not be an informal
conference, and that the motion would be placed in abeyance
pending reassignment of the case to a hearing officer. 	On
January 11, 1983 the undersigned hearing officer advised the
parties that the motion would be taken out of abeyance and
considered a pre-hearing motion pursuant to PERB regulation
32190. On January 11, 1983, the complainant was granted twenty
days to respond to the motion. The substance of the
complainant's response, filed January 25, 1983, is limited to
his argument that the motion is "illegal" and that he is
entitled to a formal hearing.
First, the motion can hardly be deemed "illegal. " PERB
regulations clearly permit the filing of pre-hearing motions,
and complainant was afforded full opportunity to respond to the
District's motion. Secondly, a party to a public notice
complaint is not necessarily entitled to a hearing once a board
agent determines the complaint states a prima facie case. 	In
Los Angeles Community College District (6/16/80) PERB Decision
3PERB Regulation 32190 states as follows:
(a) Written motions made before, during or
after a hearing shall be filed with the
Board agent assigned to the proceeding.
Service and proof of service pursuant to
Section 32140 are required.
3

No. Ad-91 and Los Angeles Community College District
(12/31/80), PERB Decision No. 153, the Board itself affirmed on
appeal the regional director's dismissal of complaints after a
determination of prima facie violation, conduct of an informal
conference and the setting of a formal hearing. Although in
those cases complainant did not assert on appeal that his due
process rights and PERB regulations required that he be granted
a hearing, nevertheless, the Board could have, but did not,
remand the cases for hearing. 	Consistent with this, the Board
has recently amended its Public Notice Regulations to expressly
allow for the dismissal of any complaint which, after
investigation, is determined to fail to state a prima facie
allegation or which is not supported by sufficient facts to
comprise a violation of Government Code section 3547."
PERB's public notice complaints are processed similar to
the manner in which the National Labor Relations Board (NLRB)
processes unfair labor practices. The NLRB has long upheld the
4The amended Public Notice Regulations became effective
October 27, 1982. 	The pertinent sections read as follows:
32920 (b) (6) 	The powers and duties of such
Board agent shall be to:
Dismiss any complaint which, after
investigation, is determined to fail to
state a prima facie allegation or which is
not supported by sufficient facts to
comprise a violation of Government Code
sections 3547 or 3595. Any such dismissal
is appealable to the Board itself pursuant
to Section 32950 of these regulations.

right of a hearing officer to dismiss complaints deemed to be
prima facie by the General Counsel prior to hearing. See
Cherry Rivet Company (1951) 97 NLRB No. 212, [29 LRRM 1237]
where the NLRB held that, "Such dismissals are well established
judicial and administrative practice, and are in the interest
of speedy administration of law." Cherry Rivet Company, supra,
at p. 1304 (footnote 1) .
For the foregoing reasons, it is determined that the motion
is procedurally proper and that the hearing officer does have
authority to grant the District's Motion to Dismiss
irrespective of a prior prima facie finding.
PUBLIC NOTICE COMPLAINT DOES NOT STATE A PRIMA FACIE VIOLATION
An agent of the PERB Los Angeles regional office ruled that
the instant complaint alleges a prima facie violation of
3547 (a) because the respondent's initial life insurance
proposal failed to provide sufficient information for the
public to know what the proposal was.
The Respondent's initial proposals proposed amendments to
the life insurance plan provisions of agreements with five
exclusive representatives. In each agreement, it proposed to
insert language providing that life insurance plans, and
benefits and coverage under the plan, "shall be determined by
the District". In each case the District included explanatory
language which stated that the proposed amendment would allow
the District to enter into negotiations concerning the life
5

insurance provisions of the collective bargaining agreements.
The explanatory language also stated that, "It is anticipated
that the District and [AFT, CSEA, SEIU, Local 99 and the
Building and Trades Council] may be able to settle on a life
insurance plan which would be less expensive and provide
comparable or better benefits than the current plan" (Emphasis
added) .
Complainant alleges that he was prevented from being fully
informed of the proposals because he was denied access to bids
by insurance companies relating to the proposals.
Respondent maintains that no prima facie violation is
stated because the proposals were presented in their entirety,
i.e., life insurance plans and coverage under the plans "shall
be determined by the District." Respondent asserts that the
public was fully informed of the issue and of the District's
position on it. Respondent also contends that life insurance
bids are confidential information according to Government Code
section 6254 and 6255 and PERB has no jurisdiction to enforce a
possible claim of violation of those sections.
For the reasons that follow, it is determined that the
instant complaint fails to state a prima facie violation of the
EERA .
Section 3547(e) sets forth the intent of the public notice
provisions of the EERA. 	It states in pertinent part,
. namely that public be informed of the
6

issues that are being negotiated upon and
have full opportunity to express their views
on the issues to the public school employer
and to know the positions of their elected
representatives.
In Dr. Louis Fein v. Palo Alto Unified School District and
Palo Alto Educators Association, PERB Decision No. 184
(12/02/81) , the Board interpreted section 3547 (e) to mean that,
"[I] nitial proposals presented to the public must be
sufficiently developed to permit the public to comprehend
them. An initial proposal which is simply a statement of the
subject matter such as "wages" does not adequately inform the
public of the issues that will be negotiated."
In Fein, supra, the Palo Alto Education Association
(Association) proposed that the compensation of teachers be
modified according to a formula based on changes in the
Consumer Price Index. The Board found that although the actual
dollar and cents amount of the proposal was not subject to
calculation in advance, it was sufficiently developed to inform
the public what issue would be on the table at negotiations.
In this case the District's initial proposals in each of
the five units were presented by showing the exact changes the
District proposed in the current contract language. For
example :
A. 	Proposal to AFT For Certificated Contract:
Article XXVI, Life Insurance
9=-- - Employees-Age-70-65-and-Over
An-amount-equal-to-508-358-less-of-the-amount-in-force
immediately-prior-to-his-or-her-70th-65th-birthday.
7

Administration of the Program
The program shall be administered by the Health Insurance
Section of the Staff Relations Branch of the Personnel
Services Division.
10. 	Limits of Coverage
The limits of coverage under this Article shall be the
same-as-provided-during-the-1979-80-academic-year
determined by the District.
11. 	Advisory Committee
An advisory committee shall be established to review the
District's fringe benefit program (hospital-medical,
dental, vision and life insurance coverage) . The
committee may recommend changes, additions and/or
deletions to the fringe benefit program. If-the
recommended-changes7-additions-andfor-deletions-reduce-the
cost-of-the-existing-fringe-benefit-programy-the-parties
te-this-Agreement-shall-reopen- -upon-request-of-either
party;-the-fringe-benefit-articles-for-negotiations-for
additional-benefits-not-to-exceed-the-amount-of-the-cost
reduction-for-the-certificated-unit-employees. AFT shall
be entitled to one member on the advisory committee.
B. 	Proposal to CSEA For the Technical/Clerical Unit:
Article 21, Health and Welfare
21.1.5. 	A term life insurance plan comparable-to-the
District's-current-Confederation-bife-Plan for
eligible employees shall be determined by the
District . through-age-69-with-508-payable-to-these-70
years-of-age-OF-older. The death benefits under the
District-paid plan shall be $307060 determined by the
District.
In the instant case, as in Fein, the District's initial
proposal did not specify the actual dollar and cents amount of
the proposal. It did, however, clearly indicate that the
subject of the negotiations was a life insurance plan and that
the initial position of the District regarding the life
insurance plan was that the District alone should determine the

benefits and extent of coverage to be provided. It is not
necessary to determine whether this statement, alone, meets the
requirements of Government Code section 3547, because the
District also included explanatory information with its initial
proposal .
5
In summary, the complete initial proposal submissions of
the District informed the public of 1) the exact language of
the proposals, 2) the expectations of the District regarding
the directions the negotiations would take, and 3) the result
that the District was hoping to achieve through negotiations on
the subject of life insurance benefits. Thus, the District's
initial proposals along with the explanatory language were
sufficiently developed to permit the public to comprehend them,
and allowed the public to know the position of their elected
representatives. Complainant's assertion that disclosure of
life insurance bids was necessary to comply with the strictures
of section 3547, requires specificity beyond the Board's
guidelines in Fein.
The initial proposals as presented were sufficiently
developed to comply with the pertinent sections of the EERA.
Therefore that portion of the complaint is dismissed without
leave to amend.
5
Following is the full text of the information which
accompanied the initial proposals:
Background: The above proposed amendment
will allow the District to enter into
negotiations with CSEA concerning revision
of the life insurance provisions of the
9

Complainant also alleges that respondent violated the EERA
by not making a verbal presentation of its life insurance
proposals. As cited previously (ante fn.1) section 3547(a)
requires that all initial proposals which relate to matters
within the scope of representation be presented at a public
meeting of a public school employer.
The Dictionary definition of "present" is "to introduce, to
bring before the public; to offer to view; to offer for
consideration." Nothing in the dictionary indicates that this
must, of necessity, be verbal. The intent of the Act, i.e.,
that the public be informed of the issues, can be accomplished
by providing a written proposal to the public as was done in
the instant case. Nothing in PERB regulations or EERA
prohibits a presentation of this nature. In the instant case
it is found that the District complied with the spirit and
intent of the law. Accordingly, that portion of the public
notice complaint is dismissed without leave to amend.
current Collective Bargaining Agreement. It
is anticipated that the District and CSEA
may be able to settle on a life insurance
plan which would be less expensive and
provide comparable or better benefits than
the current plan. In accordance with the
District's Collective Bargaining initial
proposal procedure approved by the Board of
Trustees on September 3, 1980, the above
amendment is presented as an informative
item at today's meeting so that the public
may have an opportunity to respond at the
next regularly scheduled Board meeting.
10

DISTRICT REQUEST FOR ATTORNEY'S FEES
In Los Angeles Unified School District (02/22/82) , PERB
Decision No. 18la, the Board admonished Mr. Watts to ". .
cease and desist from filing complaints which merely raise
facts and questions of law which the Board has already fully
considered" and warned Mr. Watts that if he persisted in so
doing the Board would consider compelling him to pay the
respondent's legal expenses.
In Unit Determination for the State of California
(12/21/80) PERB Decision No. 110c-S p. 41, the Board held that
fees would be awarded only where there was a showing of
"frivolous or dilatory litigation" and would be denied,
if the issues are debatable and brought in good faith."
In the instant case complainant raised an issue not
previously raised. It was an issue presumably debatable, since
even a board agent found respondent's life insurance proposal
to be the basis of a prima facie violation. It is found that
complainant acted in good faith in filing the complaint,
confusing as he did the nature of the District's initial
proposal. Attorney's fees should only be awarded where the
complaint is without arguable merit and was filed in bad
faith. That is not the case here and the request is therefore
denied.
11

CONCLUSION
The complaint does not state a prima facie violation of the
Act. It cannot be amended to do so. Hence, the Motion to
Dismiss is granted and the complaint is DISMISSED WITHOUT LEAVE
TO AMEND.
An appeal of this decision pursuant to PERB regulation
32925, may be made to the Board itself within 20 (twenty)
calendar days following the date of service of this decision by
filing a statement of the facts upon which the appeal is based
with the Board itself at 1031 18th Street, Sacramento,
California 95814. Service and proof of service of the appeal
are required pursuant to PERB regulation 32140.
DATED re 29 1983 	Patricia Hernandez
Hearing Officer
12