California State University * * * VACATED by California State University (1987) PERB Decision No. 621a-H (PERB 0621H)

VACATED by California State University (1987)
PERB Decision No. 621a-H
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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Case No . LA-CO-7-H
PERB Decision No. 	621-H
May 29, 1987
Appearances: William B. Haughton, Attorney for California State
University; Edward 	R. Purcell for California Faculty Association.
Before 	Hesse, 	Chairperson; 	Craib 	and 	Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	California 	State 	University 	(CSU)
filed 	an 	unfair 	practice 	charge 	against 	California 	Faculty
Association 	(CFA) on 	July 	16, 	1986, 	alleging 	that 	CFA
attempted to bypass 	CSU negotiators 	and 	deal 	di rectly 	with 	the
employer during 	the 	negotiations for 	a 	new 	contract. The 	charge
was dismissed 	on 	September 	12, 	1986, and 	this 	appeal 	ensued.
DISCUSSION
CSU 	is governed 	by a 	Board 	of 	Trustees, 	which 	itself 	is
divided 	into 	numerous 	committees. 	One 	such 	committee 	is 	the
Collective 	Bargaining 	Committee, 	which 	oversees 	all 	negotiations
lrn 	analyzing 	a 	charge 	to 	see 	if 	it 	states a prima 	facie
case, 	all 	facts 	alleged 	will 	be 	deemed 	true. 	(San 	Juan
Unified School 	District 	(1977) EERB 	Decision 	No . 12. 	Prior to
January 1, 	1978, the Public Employment Relations Board(PERB)
was known 	as the Educational 	Employment Relations Board( ERB).)

between
	CSU
	and
	the 	various 	exclusive
	representatives
	that
represent
	bargaining
	units
	composed
	of
	CSU
	employees.
	The
charge
	does
	not
	specify
	the
	precise
	composition
	of
	the
Collective
	Bargaining
	Committee~ 	However,
	it
	is 	clear
	from
	the
charge
	that
	the
	Committee
	itself
	does
	not
	sit
	at
	the 	bargaining
table
	but
	has
	a
	representative 	that
	does
	so.
The
	parties
	had 	been
	negotiating
	in
	1986
	for
	a 	new
collective
	bargaining
	agreement.
	On
	June
	27,
	1986,
	a
	PERB
agent 	declared
	that
	the
	parties
	were
	at
	impasse.
2 On
	June 	30,
1986,
	CFA
	sent
	a
	mailgram
	to
	Thomas 	C.
	Stickel,
	Chaiperson
	of
the 	Collective
	Bargaining
	Committee,
	offering
	to 	the
	trustees
two
	proposals
	that
	CFA
	felt
	would
	facilitate
	agreement 	between
the
	parties.
	CSU
	alleges 	that 	this
	behavior
	constituted
	direct
dealing
	with
	the
	employer
	and
	contravened
	the
	Higher 	Education
Emloyer-Emloyee
	Relations
	Act
	section
	357l~l(d)~
3
The
	regional
	attorney
	dismissed 	the 	charge
	stating 	that,
under
	San
	Ramon
	Valley 	Unified
	School
	District
	(1982)
	PERB
Decision
	No.
	230, 	an
	exclusive 	representative
	may
	communicate
2rn
	Case
	No. 	LA-M-1605,
	CFA
	disputed
	this
	finding
	and
appealed 	the
	agent's 	determination.
	The
	appeal
	was
	withdrawnDecember
	11, 	1986.
3section 	3571.l(d) 	reads:
It
	shall
	be 	unlawful 	for
	an 	employee
organization 	to:
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	.
(d) 	Refuse
	to 	participate 	in
	good
	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article
	9
(commencing
	with 	Section 	3590).
2

with
	a
	school
	board
	so 	long 	as
	the
	communication
	seeks
	to
facilitate
	the
	negotiations
	process
	and
	does
	not
	attempt
	to
actually
	engage
	in
	negotiations.
	(Westminster
	School
	District
(1982)
	PERB
	Decision
	No.
	277.)
CSU
	appeals
	this
	dismissal
	arguing
	that
	CFA's
	mailgram
	was
an
	attempt 	to
	directly
	negotiate
	with
	CSU.
	It
	observes
	that
the
	mailgram
	was
	not
	an
	oral
	communication
	made
	at
	a
	public
board 	meeting,
	but
	rather,
	was
	an
	entirely
	new
	negotiating
proposal 	unlike
	any
	presented 	to
	CSU's
	negotiators
	in 	scheduled
negotiating 	sessions.
	CSU
	argues
	that 	this
	clearly
	is
negotiating,
	not 	merely
	attempting
	to
	inform
	the
	board
	of
progress.
We
	believe
	that
	CSU
	has
	stated
	a
	prima
	facie 	case.
	The
charge
	indicates 	that
	the
	CFA
	mailgram
	was
	sent
	directly
	to 	the
Chairperson 	of 	the 	Collective
	Bargaining
	Committee~
	Copies
were
	sent 	to
	Committee
	members
	and
	CFA
	bargaining
	team
	members
only.
	Furthermore, 	the
	language 	used
	in
	CFA's
	mailgram
	is
unambiguous
	as
	to
	its
	intent:
	"Although
	it
	would
	normally 	be
the
	case
	that
	an
	offer
	such
	as
	this
	would
	be
	made
	directly
	to
your
	representative 	at
	the 	bargaining 	table
	•••
	we
	believe
that 	this 	direct
	approach
	to
	you
	and
	members
	of
	your 	committee
is
	both 	necessary
	and
	proper~"
	(Emphasis
	added.)
	On
	its
	face,
this
	document
	strongly 	suggests
	that 	negotiations 	outside
normal 	channels
	were
	being 	attempted.
4
4By
	issuance 	of
	a
	complaint,
	we 	make 	no
	finding 	here 	as
to 	whether 	the 	declaration 	of 	impasse 	suspended 	the 	duty 	to
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bargain 	until 	after
	issuance 	of 	the
	factfinder's 	report.
	Nor
do
	we
	imply
	that
	bypassing 	negotiators 	after
	impasse
	is
	not
	a
failure 	to 	participate
	in
	good
	faith
	in 	impasse 	proceedings.Those
	issues 	are
	left
	for 	the 	evidentiary hearing.
Based
	on
	the
	foregoing,
	we
	find
	sufficient
	factual
allegations
	in
	the
	charge
	to
	establish
	a
	prima
	facie
	case
	that
CFA's
	mailgram
	was
	an
	attempt
	to
	directly
	negotiate
	with
	the
employer
	thereby 	bypassing
	CSU's
	designated
	spokesperson.
	We
see
	no
	reason
	by
	CFA
	should
	be
	allowed
	to
	bypass
	the 	employer's
chosen
	negotiators
	when
	an
	employer
	is
	prohibited
	from
bypassing 	the
	employees'
	representative.
	(See 	Nassau
	Insurance
Company
	(1986)
	280
	NLRB
	No.
	103
	[124
	LRRM
	1075];
	sim.
	Spectator
Freight
	Systems,
	Inc.
	(1982)
	260
	NLRB
	86
	[109
	LRRM
	1133].)
ORDER
This 	case
	is
	REMANDED
	to
	the
	General
	Counsel
	and
	he
	is
ordered
	to
	issue
	a
	complaint 	not
	inconsistent
	with
	this
Decision.
Members
	Craib
	and
	Shank
	joined
	in
	this
	Decision~
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