California State University (Watts) (PERB 0493H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 0. 	WATTS,
Complainant,
v.
CALIFORNIA STATE UNIVERSITY,
Respondent.
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) 	Case 	No. 	LA-PN-59-H
PERB 	Decision 	No. 	493-H
March 14, 	1985
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Appearance: 	Howard 0. 	Watts, 	on his own behalf.
Before Hesse, Chairperson; Jaeger, 	Morgenstern and Burt,
Members.
DECISION
This 	case 	is 	before 	the Public 	Employment Relations 	Board
on 	an 	appeal 	by Howard 0. 	Watts 	of 	the 	Board 	agent's 	dismissal,
attached hereto, 	of his 	public 	notice 	complaint 	alleging 	that
the California 	State 	University violated 	section 	3595(c) 	of 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(Gov. 	Code
sec. 	3560 	et seq.).
We 	have 	reviewed 	the 	Board agent's 	dismissal 	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-59-H 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD.
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e

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES. CALIFORNIA 	90010
(213) 736-3127
October 26, 1984
Mr. Howard O. Watts
Los Angeles, CA 	90029
William B. Haughton, Esq.
California State University
400 Golden Shore, Suite 350
Long Beach, 	CA 	90802
Re: Notice of Dismissal
Watts v. 	California State University, LA-PN-59-H
Dear 	Interested Parties:
The 	above-referenced 	public notice 	complaint was 	filed 	with our
office on April 19, 	1983. 	A First Amended Complaint was 	filed
May 23, 	1983. 	A Second Amended Complaint was 	filed
August 29, 	1984. 	The complaint alleges a violation of HEERA
subsection, 	3595(c), 	based upon the failure 	(of a quorum) 	of
the 	respondent's board of 	trustees 	to adopt 	the 	initial
proposals 	of the California State University for 	its Unit 	4
("academic support"). 	For 	the following reasons, 	the complaint
fails 	to 	state a prima facie violation of Government Code
subsection 3595(c) 	and cannot be amended to do so. 	The
complaint is, 	therefore DISMISSED.
The complaint alleges that the respondent, California State
University 	(CSU), 	violated subsection 3595(c) 	by having the
committee on collective 	bargaining adopt 	the 	initial proposals
for 	the 	its academic support unit. 	This 	action was taken on
March 	21, 	1983. 	The board of trustees subsequently received a
report of 	these activities at 	its March 22, 	1983 meeting.
Subsection 3595(c) 	states:
After 	the public has 	had 	the opportunity to
express 	itself, 	the higher education employer
shall, 	at a meeting which is open to the public,
adopt a proposal, 	including any changes to its
initial proposal which 	the higher 	education
employer deems appropriate 	based on 	the public's
comments.

October 26, 	1984
CSU, LA-PN-59-H
Page 2
As defined 	in Section 	3562 of HEERA 	"higher 	education employer"
includes 	" . . . 	any person acting as an agent of an employer."
Accordingly, 	the definition of 	"agent" 	specifies a broad list
of functions which encompasses those of the committee on
collective bargaining. 	In addition, Section 89035 of 	the
Education Code provides:
Whenever 	in this code 	a power 	is vested 	in the
trustees, 	the trustees by majority vote may adopt
a rule 	delegating 	such power 	to any officer
employee or committee as 	the trustees may
delegate. 	(Emphasis added).
Hence, 	there 	is clear 	statutory authority allowing 	the 	board of
trustees 	to establish 	its 	committee on collective 	bargaining.
Pursuant to that authority, 	subsection 5(h) 	of article VI of
the board's Rules of Procedure provides as follows:
h. 	Committee 	on Collective Bargaining - 	The committee on
collective 	bargaining 	shall have 	delegated 	authority
to act for 	the board of trustees 	in order 	to comply
with 	the 	requirements of 	the Higher Education
Employer-Employee Relations Act 	(HEERA) 	and 	implement
the collective 	bargaining policy of 	the board 	of
trustees. 	The delegation to the committee on
collective bargaining 	includes, 	but is not limited to,
authority 	to negotiate memoranda of understanding
pursuant to the policies of the board of 	trustees.
The 	committee on collective 	bargaining 	shall 	submit
periodic progress 	reports to the board of 	trustees on
matters 	pertaining 	to collective 	bargaining 	and
actions which it has taken. 	(Emphasis added).
In compliance with this 	rule, 	the chairman of the committee on
collective 	bargaining 	reported 	to 	the board of 	trustees 	at 	its
meeting on March 22, 	1983 	the actions taken by the committee
the previous day.
Thus, 	the committee on collective bargaining, 	as an agent of
the higher education employer, 	has 	the authority to adopt 	the
initial CSU bargaining proposals 	in open meetings 	based on
lawful delegation of authority pursuant 	to subsection 5(h) 	of
the 	board's Rules of Procedure.
•

October 26, 1984
CSU, LA-PN-59-H
Page 3
The 	complaint 	further 	alleges 	that 	the action taken by the
committee at 	its March 21, 	1983 meeting was precluded by the
Bagley-Keene 	Open Meeting Act 	(Government Code 	section 	11120
et.seq.). 	PERB, however, does not adjudicate violations of
this act. 	Assuming, 	arguendo, 	the relevance of the
Bagley-Keene Open Meeting Act, 	that 	statute 	requires 	that
meetings of 	"state 	bodies" as defined 	therein be open 	to the
public except 	as otherwise provided 	in the act. 	With certain
exceptions not material herein, 	the act essentially imposes 	its
open meeting 	requirements upon state boards, 	commissions,
committees or 	similar 	multimember 	bodies 	including 	advisory
bodies. 	You argue 	that the committee on collective bargaining
cannot 	take 	"official" 	action 	(presumably meaning 	legislative
action) 	because pursuant to section 11122 of 	the open meeting
act, 	only the 	full board of trustees has 	such authority 	(i.e.
to adopt 	initial proposals). 	A closer 	reading of the statute
however, 	indicates a different result. 	Section 11122 provides:
As used 	in this article "action taken" means a
collective decision made by 	the members of 	the
state 	body to make a positive or 	negative
decision or 	an actual vote by 	the members of a
state 	body when 	sitting 	as a 	body or 	entity upon
a motion, 	proposal, 	resolution order or similar
action. 	(Emphasis added).
Additionally, 	section 11121.2 provides that:
. 	. 	. 	state body also means any board,
commission, committee, or committee or similar
multimember 	body which exercises 	any 	authority of
a state 	body delegated 	to 	it by 	that 	state body.
As 	stated 	in one 	formal opinion of 	the Attorney General
[65 Ops. Cal. Atty. Gen. 638 	(1982)]
. 	. 	. 	for purposes of the open meeting
requirements 	of 	the Bagley-Keene Open Meeting
Act, 	each committee must be analyzed 	individually
with 	respect to 	its source of origin, 	its
composition, 	and 	its functions and duties, and
their 	source.

October 26, 1984
CSU, LA-PN-59-H
Page 	4
As previously noted, 	subsection 5(h) 	of article VI of 	the
board's Rules of Procedure established 	the committee 	on
collective 	bargaining. 	The 	functions of 	this committee as
outlined 	in the above 	section deal primarily with 	implementing
the collective bargaining policy of 	the board of 	trustees.
Section 11121.8 makes 	an 	"advisory committee" 	of 	a 	"state 	body"
also 	a state 	body 	for 	purposes 	of 	the Bagley-Keene Open Meeting
Act 	if 	the advisory committee 	is 	"created by formal action of a
state 	body or 	of any member of a state body, 	and 	if 	the
advisory body so created consists of 	three or more persons."
The Legislature 	in enacting 	this provision, 	patterned 	after
similar provisions contained 	in the Ralph M. 	Brown Act
(Government Code section 549050 et.seq.), wanted to preclude
legislative and 	state 	bodies 	from evading 	the open meeting
requirements of the 	two acts, 	consequently the definition of
"body" 	is 	to be construed broadly. 	(Joiner v. 	City of
Sebastopol 	(1981) 	125 Cal. App. 	3d 799, 805; 	[178 Cal Rptr.
299). 	Similarly, 	there is no allegation that CSU's agent, 	the
committee on collective 	bargaining, 	did not adopt 	the 	proposals
in a public meeting. 	Hence, 	application of the criteria set
forth 	in sections 	11121.2 	and 	11112.8 	leads to a conclusion
that 	the 	committee on 	collective 	bargaining 	is a 	"state 	body"
for 	purposes of the 	act. 	Thus any action 	it took at 	its March
21, 	1983 meeting complied with 	the 	requirements of 	section
11122.
Even 	if, 	however, 	a contrary conclusion were reached 	(e.g. 	the
meetings of the committee were not public, 	or another 	violation
of some kind) 	it 	is doubtful that 	the subsequent action taken
by the 	committee on 	collective 	bargaining would be
invalidated. 	There have 	been no cases or opinions of 	the
Attorney General which 	have 	determined 	the 	consequences 	of 	a
failure 	to comply with 	the 	provisions of 	the Bagley-Keene Open
Meeting Act. 	In one recent opinion, 	however, 	the Attorney
General in 67 Ops. Ca. Atty. Gen. 84(1984) examined the
legislative history of 	the Bagley-Keene Act against 	the
background 	of 	the Brown Act 	and 	concluded:
. . . 	had 	the Legislature 	intended 	a 	violation of
the Bagley-Keene Open Meeting Act or 	any of 	its
specific provisions, 	. . . 	to result in the
invalidation of action taken, 	it would have
specifically 	stated 	in 	unmistakable 	language.

October 26, 1984
CSU, LA-PN-59-H
Page 5
The 	procedures 	employed 	by 	both 	the 	board of 	trustees 	and 	the
committee 	on collective 	bargaining 	comply with the 	requirements
of 	subsection 3595(c) 	of HEERA. 	Based on the above rationale,
it 	is determined 	that the complaint fails 	to state a
prima facie violation of Government Code 	subsection 3595(c).
Accordingly, 	the complaint 	is hereby DISMISSED WITHOUT FURTHER
LEAVE TO AMEND.
You may obtain a review of 	this 	dismissal of 	the complaint 	by
filing an appeal 	to the Board 	itself within 20 calendar 	days of
the date of 	service of 	the dismissal. 	The appeal shall be
filed 	in writing 	and with 	the Board 	itself 	in the headquarters
office, 	and shall be signed by yourself or your agent. 	The
Board's address is 1031 - 18th Street, Sacramento, CA 	95814.
You must 	serve 	the 	appeal 	and 	all 	supporting documents 	upon the
respondent. 	Within 20 days of service, 	the respondent may file
with 	the Board 	itself 	an opposition 	to the appeal of dismissal.
Very 	truly yours,
Frances A. 	Kreiling
Regional 	Director
Robert R. 	Bergeson
Labor Relations Specialist
RRB:gml