California State University (California State Employees Association) (PERB 0777H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION, 	SEIU LOCAL 	1000,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
Respondent.
Case No. 	LA-CE-209-H
PERB 	Decision 	No. 777-H
November 21, 1989
Appearances: 	Ronald E. 	Almquist, 	Senior Labor Relations
Representative, 	for California State Employees' 	Association, 	SEIU
Local 	1000; 	William B. 	Haughton, 	Attorney, 	for California State
University.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal by the California 	State
University 	(University) 	of 	the administrative 	law 	judge's 	(ALJ)
attached proposed decision. 	The California 	State 	Employees'
Association, 	SEIU Local 	1000 	(CSEA) 	filed an unfair practice
charge 	alleging 	that 	the 	University 	unlawfully 	communicated with
bargaining unit 	employees 	about 	a 	negotiable 	subject 	(salary
increase 	and effective date) 	during the 	course of 	negotiations.
The 	gravamen of 	CSEA's 	charge 	is 	that 	the 	University was
obligated to meet and negotiate, 	under section 3571(a) 	and 	(b) 	of
the 	Higher 	Education Employer-Employee 	Relations Act 	(HEERA 	or
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Act),1 and consider CSEA's position prior to direct
communications with unit 	employees.
The University, 	in its post-hearing brief, 	contends that the
statements 	simply describe 	the 	contents 	of 	the Governor's 	final
budget, 	and are not of the type which are 	likely to 	coerce
employees 	or 	otherwise 	interfere with 	the 	exercise 	of 	employee
rights.2
The 	ALJ 	found 	that 	the 	University violated 	section 	3571(a)
and 	(b) 	of 	the Act by publishing 	statements 	in its 	newsletter,
Wrap-Up, 	which tend to undermine 	the 	exclusive representative 	in
the 	eyes 	of bargaining unit 	employees 	and 	interfere with 	the
rights 	of 	unit 	employees 	to 	be 	represented by 	their 	exclusive
representative.
The ALJ 	correctly 	recognized 	that 	HEERA protects 	the
expression of the employer's 	"views, 	arguments, 	or opinions,"
unless 	such expression contains a 	"threat of reprisal, 	force, 	or
1HEERA 	is 	codified at 	Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3565 	states 	in relevant part:
Higher 	education employees 	shall 	have 	the
right to 	form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of 	their
own choosing for the purpose 	of
representation on all 	matters 	of 	employer-
employee 	relations 	and 	for the purpose of
meeting and conferring. 	. 	. 	.
2The 	University 	excepted 	generally 	to 	the ALJ's
interpretation of 	its 	statements 	in Wrap-Up, 	and his 	resultant
conclusions. 	We 	find the ALJ's 	interpretation and 	conclusions
proper. 	Furthermore, 	since we 	find the 	exceptions 	raise no new
issues 	from 	those presented by the 	University 	in 	its 	post-hearing
brief, 	we do not address 	them in this decision.
N	2

promise 	of 	benefit."3 The ALJ 	evaluated the 	statements 	for
accuracy; 	(Alhambra City and High School 	District 	(1986) 	PERB
Decision No. 	560; 	Muroc Unified School District 	(1978) 	PERB
Decision No. 	80) 	in the context 	in which the 	statements 	occurred;
(Los Angeles 	Unified School District 	(1988) 	PERB Decision No.
659) 	"in light of the impact that 	such communication had or 	[is]
likely to have on the 	. 	. 	. 	employee who may be more susceptible
to 	intimidation or receptive 	to 	the 	coercive 	import 	of 	the
employer's 	message"; 	(Rio Hondo Community College District 	(1980)
PERB Decision No. 	128) 	and, 	in terms of the effect on the
authority of 	the 	exclusive representative. 	(Muroc 	Unified School
District, 	supra, 	PERB Decision No. 	80.)
-.
The ALJ 	found 	that Wrap-Up 	definitively 	stated 	that 	the
University 	accepted 	the 	four-percent 	increase 	(at 	the 	time 	the
salary adjustment was 	still on the table) 	and that the 	increase
"will take effect January 	1, 	1988." 	The ALJ determined that,
while the 	language did not assure a 	four-percent raise, 	it
implied 	that 	the 	University 	had 	unilaterally 	fixed 	the 	salary
3Section 3571.3 	states:
The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual form, 	shall not constitute, 	or be
evidence of, 	an unfair labor practice under
any provision of this 	chapter, 	unless 	such
expression contains 	a threat of reprisal,
force, 	or promise of benefit; 	provided,
however, 	that the employer shall not express
a 	preference 	for one 	employee 	organization
over another employee 	organization.
3
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3

increase 	and unequivocally 	set 	the 	effective date 	of 	any raise.
There 	is 	no 	language 	in Wrap-Up which 	can be 	interpreted as
qualifying 	the 	statement 	that 	unit 	employees would 	receive 	a
four-percent increase effective January 	1, 	1988, 	based on the
outcome 	of 	the 	negotiating process.
We have reviewed the 	entire record 	in this 	case, 	including
the ALJ's 	proposed decision, 	the University's 	exceptions 	and the
responses 	thereto. 	We 	find the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	from prejudicial 	error, 	and adopt
the proposed decision as 	the 	Decision of 	the Board 	itself.
ORDER
Upon the foregoing findings 	of 	fact, 	conclusions 	of 	law, 	and
the 	entire record 	in this 	case, 	the Board 	finds 	that the
California 	State 	University 	violated 	the 	Higher 	Education
Employer-Employee Relations Act. 	It 	is 	hereby ORDERED that 	the
California 	State 	University 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Issuing 	statements 	in Wrap-Up or other publications
during 	the 	course 	of 	negotiations 	which 	tend to 	interfere with
the 	right 	of bargaining unit 	employees 	to 	be represented by 	the
exclusive representative California 	State Employees' 	Association,
SEIU Local 	1000.
2. 	Issuing 	statements 	in Wrap-Up 	or other publications
during 	the 	course 	of 	negotiations 	which 	tend to 	interfere with
the right of the California State Employees' 	Association, 	SEIU
Local 	1000 	to represent bargaining unit 	employees.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration pursuant 	to
PERB Regulation 32410, 	post, 	at all 	sites and all other work
locations where notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice 	attached hereto 	as 	an Appendix. 	The Notice
must 	be 	signed by 	an authorized agent 	of 	the California 	State
University Board of 	Trustees. 	Such posting 	shall be maintained
for a period of thirty 	(30) 	consecutive workdays. 	Reasonable
steps 	shall be taken to 	insure that the Notice 	is 	not reduced 	in
size, 	altered, 	defaced or covered by any other material.
2. 	Written notification of the actions 	taken to 	comply
with this 	Order 	shall be made 	to 	the Los Angeles 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	her 	instructions.
Chairperson Hesse 	and Member Porter 	joined 	in this 	Decision.
5
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	LA-CE-209-H,
California State Employees' 	Association, 	SEIU Local 	1000 v.
California 	State University, 	in which all parties 	had the 	right
to participate, 	it has been found that the California 	State
University violated Government Code 	section 3571(a) 	and 	(b).
As 	a 	result 	of 	this 	conduct we 	have 	been ordered 	to post
this Notice, 	and will abide by the 	following. 	We will:
CEASE AND 	DESIST 	FROM:
(1) 	Issuing 	statements 	in Wrap-Up or other publications
during 	the 	course 	of 	negotiations 	which tend to 	interfere with
the 	right 	of 	bargaining unit 	employees 	to 	be 	represented by 	the
exclusive representative California State Employees' 	Association,
SEIU Local 	1000.
(2) 	Issuing 	statements 	in Wrap-Up 	or other publications
during 	the 	course 	of 	negotiations which tend to 	interfere with
the right of the California State Employees' 	Association, 	SEIU
Local 	1000 	to represent bargaining unit employees.
Dated: 	California 	State 	University
By_
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
By·___ _

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 	1000,
Charging 	Party,
v.
CALIFORNIA 	STATE UNIVERSITY,
Respondent.
)
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) 	Unfair 	Practice
Case No. 	LA-CE-209-H	)
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) 	PROPOSED DECISION
) 	(4/25/88)
)
Appearances; 	Ronald E. 	Almquist 	and 	Susan Kleinman 	for
California State Employees' 	Association; 	William B. 	Haughton,
Attorney, 	for The California 	State University.
Before: 	Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair 	practice 	charge was 	filed 	by 	the 	California
State Employees Association, 	SEIU Local 	1000, 	California 	State
University Division, 	(hereafter CSEA or 	charging 	party) 	against
the 	California 	State University 	(hereafter 	CSU or 	respondent)
on August 	7, 	1987. 	The charge alleges, 	among other things,
that 	the 	CSU 	Chancellor 	unlawfully 	communicated 	with 	bargaining
unit 	employees 	about 	a 	negotiable 	subject 	during 	the 	course 	of
negotiations.
The 	General 	Counsel 	of 	the 	Public Employment 	Relations
Board 	(hereafter 	Board 	or 	PERB) 	issued 	a 	complaint 	on
September 	15, 	1987. 	The complaint 	charged 	that CSU Chancellor
W. 	Ann Reynolds 	"promised benefits 	to 	unit 	employees
represented 	by 	Charging 	Party 	by 	announcing 	wage 	adjustments
for unit 	employees 	in a 	[written communication] 	without
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
_________ !

conditioning 	the 	granting 	of 	such 	benefits 	on Respondent 	either
reaching 	agreement 	through 	collective 	bargaining 	with 	the
Charging 	Party or 	exhausting 	impasse 	procedures 	as 	provided 	in
the 	Higher 	Education Employer-Employee Relations 	Act,
Government Code section 3560 et seq. 	(HEERA or Act)." 	This
conduct, 	the complaint 	asserts, 	interfered with employees'
rights 	to 	form, 	join and participate 	in 	activities 	of 	employee
organizations 	as 	provided 	in section 3565 	and, 	therefore,
violated section 3571(a). 	The same conduct, 	the complaint
further 	alleges, 	interfered with 	the 	charging 	party's 	right 	to
function 	as 	an employee 	organization 	in violation of 	section
3571(b).1
1 The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et
seq., 	and 	is 	administered by the Board. 	Unless 	otherwise
indicated, 	all 	statutory references 	are 	to 	the Government
Code. 	Section 3565 	states 	in 	relevant 	part 	that 	employees
shall 	have 	the 	right 	to
form, 	join 	and participate 	in the 	activities
of 	employee organizations 	of 	their 	own
choosing 	for 	the 	purpose 	of 	representation 	on
all 	matters 	of 	employer-employee 	relations
and 	for 	the purpose 	of 	meeting 	and 	conferring.
Section 3571(a) 	and 	(b) 	state that 	it 	shall be unlawful 	for 	the
employer 	to
(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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
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Respondent 	filed 	an 	answer 	to 	the complaint 	on
September 	24, 	1987. 	Respondent denied 	that 	it violated the
Act. 	The 	settlement conference on November 	12, 	1987 did not
resolve 	the dispute.
A 	formal 	hearing was 	conducted 	in Los 	Angeles 	on
February 9, 	1988 	by the undersigned 	administrative 	law judge.
The 	post-hearing 	briefing 	schedule was 	completed 	on April 	20,
1988.
FINDINGS OF 	FACT
The 	parties 	have 	stipulated 	to 	the 	relevant 	facts. 	The
following 	is 	a 	summary of 	that 	stipulation.
CSEA 	is 	the 	exclusive 	representative 	for 	four 	bargaining
units. 	These are Health Care 	(Unit 2 ) , 	Operations Support
(Unit 5 ) , Clerical/Administrative Support (Unit 7 ) , 	and
Technical 	Support 	Services 	(Unit 	9 ) . 	The existing Memorandum
of Understanding, 	covering 	all 	units 	and effective July 	1, 	1985
to June 30, 	1988, 	provides for the parties to 	reopen
negotiations 	on economic 	issues 	for 	the 	1987/88 	fiscal 	year.
On February 24, 	1987, 	CSEA sunshined 	its 	initial 	bargaining
proposals. 	CSU presented 	its 	initial 	proposals 	to 	the public
on March 10, 	1987. 	On April 27, 	1987, 	the parties began formal
negotiations 	on wages 	and 	benefits.
On July 23, 	1987 CSEA filed 	a 	request 	for 	a determination
of 	impasse 	and 	appointment 	of 	a mediator with 	the 	Board's
regional 	office 	in Los Angeles. 	Each of 	the 	issues 	at 	impasse
W
	3

had 	a monetary 	impact 	on 	the CSU budget. 	The 	salary 	adjustment
was 	one 	of 	the 	subjects 	on which 	the 	parties 	had 	reached
impasse.
2
2
Meanwhile, 	on July 7, 	1987, 	the Governor 	signed 	a budget
appropriating 	$10,896,000 	for 	nonfaculty compensation. 	This
figure 	represented 	a 	reduction 	from $17,476,000. 	The 	relevant
language 	in the Governor's 	budget 	is 	as 	follows:
I 	am 	reducing 	the 	increase 	for 	nonfaculty compensation
by $5,448,000. 	Even with this 	reduction, 	the
augmentation 	for 	nonfaculty compensation 	increases 	is
sufficient to provide, 	subject 	to collective
bargaining, 	up 	to 	a 	four percent 	general 	compensation
increase package commencing January 1, 	1988, 	plus
costs 	of 	estimated 	health 	and 	dental 	benefit 	rate
increases.
Further, 	I 	am revising Provision 	I 	relating 	to 	the
percentage 	and 	effective 	date 	of 	nonfaculty
compensation 	increases. 	This 	language would
contravene 	the 	Higher 	Education 	Employer-Employee
Relations Act 	(HEERA) 	regarding 	the 	rights 	of 	the
higher 	education employer 	and 	employees 	to 	determine
wages, 	hours 	and other 	terms 	and conditions 	of
employment 	through 	collective 	bargaining.
"I. 	The funds 	herein appropriated 	are 	for
compensation 	increases, 	increases 	in benefits
related thereto, 	and other benefits, 	to be
allocated by the Department 	of 	Finance, 	in
augmentation 	of 	Item 	6610-001-001 	or 	allocations
for 	support or 	for other purposes, 	in 	such
amounts 	as will 	make 	sufficient money 	available
2The 	petition 	states 	the parties were 	at 	impasse 	on 	the
following 	issues: 	salary adjustment, 	nurse practitioner
differential, 	shift differential, 	merit 	salary adjustment,
longevity pay, 	employee 	assistance program, 	parking 	fees, 	and
nonindustrial 	disability 	insurance.
4

for 	each 	state 	officer 	or 	employee 	in
the 	state 	service, 	whose compensation,
or portion thereof, 	is chargeable to
the General 	Fund, 	to 	receive 	any 	such
increases 	provided 	by the Trustees 	of
the 	California 	State University.
Nonfacultv 	compensation 	increase 	funds
shall 	be 	for 	an 	average 	6.0 	percent
salary 	increase 	commencing 	January 	1.
1988. 	and 	faculty compensation increase
funds 	shall 	be 	for 	an 	average 	6.9
percent 	salary 	increase 	commencing
July 1. 	1987."
The 	underlined 	portion 	represents 	the Governor's 	deletion.
In 	addition, 	the budget 	provided CSU some 	flexibility 	in
the 	area 	of 	employee compensation. 	The 	Governor's 	message
stated:
I 	am 	requesting 	the Trustees 	to 	disregard 	the 	broader
authority which 	the 	Legislature 	has 	provided 	by
excluding 	CSU 	from provisions 	that 	prohibit 	a 	salary
setting 	authority 	from using, 	for 	employee
compensation increases, 	monies 	other 	than what 	is
specifically 	appropriated 	for 	compensation 	increases.
I 	do 	not 	believe 	the 	action of 	the Legislature
reflects 	sound 	fiscal 	policy. 	The Legislature did 	not
extend 	this 	same 	authority 	to 	the University of
California, 	Hastings College of Law or to Civil
Service 	and Related 	employees. 	If 	CSU Trustees 	decide
to use this broader 	authority, 	I 	am requesting 	they
report 	back to 	me 	and 	the Legislature 	for 	concurrence
prior 	to 	the 	expenditure 	of 	any 	funds 	other 	than 	those
specifically 	appropriated 	for 	compensation 	purposes.
On July 15, 	1987, 	prior 	to the request 	for 	impasse, 	the CSU
Chancellor's 	Office published 	its 	newsletter, 	"Wrap-Up." 	This
document 	is 	issued 	at 	regular 	intervals 	and 	represents 	a
summary of meetings 	of 	the CSU Board of 	Trustees. 	Several
portions 	of 	this 	newsletter 	form the 	heart 	of 	this 	unfair
practice 	charge.
5

First, 	the Wrap-Up 	announced 	that 	the 	1987-88 	budget was
"accepted by the Trustees." 	It 	also 	stated:
An 	average 	6.9 	percent 	salary 	increase 	for 	faculty 	and
an 	average 	four 	percent 	hike 	for 	non-faculty 	staff 	are
among 	the 	budget 	provisions. 	Both pay 	increases will
take effect January 1, 	1988. 	"Although the
compensation 	funds 	for 	faculty 	and 	staff 	do 	not 	take
effect 	until 	next year," 	said CSU Chancellor W. 	Ann
Reynolds, 	"I 	am pleased with the increases. 	They
bring 	us 	closer 	to 	attaining 	adequate 	and 	appropriate
compensation 	for 	our 	faculty 	and 	staff."
Finally, 	the Wrap-Up 	stated 	that 	"an 	appropriate 	1987-88 	salary
and 	benefits 	increase 	for 	non-represented 	employees 	based 	on
the 	1987-88 	budget 	has 	been 	approved 	by the Board 	of
Trustees." 	CSEA had 	initially proposed 	an 	increase 	higher 	than
four 	percent. 	The Governor's 	budget, 	including the 	reductions,
was 	widely 	reported 	in 	newspapers 	throughout 	California.
The 	parties 	eventually 	reached 	agreement 	on 	a 	new
memorandum of 	understanding. 	The 	new MOU provided 	for 	a 	four
percent 	increase, 	effective January 1, 	1988.3
ISSUES
1. 	Whether 	respondent 	interfered with 	the 	rights 	of
bargaining 	unit 	employees 	under 	the Act 	by 	its 	publication 	of
certain portions of 	the Wrap-Up on July 15, 	1987, 	in violation
3 The 	parties 	stipulated 	that 	the wage 	increase was
retroactive 	to 	the 	expiration date 	of 	the prior 	agreement.
(TR. 	P. 	6) 	This 	stipulation 	is 	rejected 	in view of 	the written
agreement between the parties, 	effective July 1, 	1987 	to
June 30, 	1988, 	which provides 	in Article 	19 	that 	the increase
was 	to be effective January 1, 	1988.
66

of 	section 	3571(a)?
2. 	Whether 	respondent 	interfered with the 	rights 	of 	the
exclusive 	representative under 	the Act 	by 	its 	publication of
certain portions of 	the Wrap-Up on July 15, 	1987, 	in violation
of 	section 	3571(b)?
DISCUSSION
The Act 	imposes 	on 	the 	higher 	education employer 	an
obligation 	to meet 	and confer with 	the 	exclusive
representative. 	It embodies 	the principle that 	the employer 	is
subject 	to 	the 	concomitant 	obligation 	to meet 	and 	confer with
no others, 	including the employees themselves. 	Section 3570;
see also Medo Photo SUPPLY Corp. 	v. 	NLRB 	(1944) 	321 U.S. 	678,
[14 LRRM 581]. 	Consequently, 	actions of a higher education
employer which 	are 	in derogation of 	the 	authority of 	the
exclusive 	representative 	are unlawful.
This does 	not mean that higher education employers, 	under
the Act, 	are precluded 	from freely expressing 	their views.
HEERA protects the expression of employer 	"views, 	arguments, 	or
opinions", 	unless 	such expression contains 	a 	"threat of
reprisal, 	force, 	or promise of benefit." 	Section 3571.3. 4
4Section 3571.3 	states:
The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, 	printed, 	graphic, 	or
visual form, 	shall not constitute, 	or be
evidence of, 	an unfair 	labor practice under
77

The 	decision 	regarding 	whether 	employer 	statements
interfere with employees' 	rights 	is made on an objective 	rather
than 	subjective basis. 	The charging 	party must 	show 	that 	the
employer's 	communications 	would 	tend 	to 	coerce 	or 	interfere
with 	a 	reasonable employee 	in the exercise 	of 	protected
rights. 	Therefore, 	communications 	are evaluated 	"in 	light 	of
the 	impact 	that 	such communication had or 	[is] 	likely to 	have
on the 	. 	. 	. 	employee who may be more susceptible to
intimidation 	or 	receptive 	to 	the coercive 	import 	of 	the
employer's 	message." 	Rio 	Hondo 	Community College 	District
(1980) 	PERB Decision No. 	128. 	p. 	20. 	That employees may
interpret 	statements, 	which are otherwise protected, 	as
coercive 	does 	not 	necessarily 	render 	those 	statements
unlawful. 	Regents 	of the University of 	California 	(1983) 	PERB
Decision No. 	366-H, 	fn. 	9, 	pp. 	15-16; 	BMC Manufacturing Corp.
(1955) 	113 NLRB 823, 	[36 LRRM 1397].
Of 	crucial 	importance 	in evaluating 	employer 	speech 	is 	the
context 	in which the 	speech occurred. 	Los 	Angeles 	Unified
any provisions 	of 	this 	chapter, 	unless 	such
expression contains 	a 	threat 	of 	reprisal,
force, 	or promise of benefit; 	provided,
however, 	that 	the employer 	shall 	not 	express
a 	preference 	for 	one 	employee 	organization
over 	another 	employee 	organization.
This 	section 	is 	parallel 	to 	section 8(c) 	of 	the National Labor
Relations Act 	(NLRA). 	The construction of similar or identical
provisions 	of 	the 	NLRA may be 	used 	to 	guide 	interpretation 	of
the HEERA. 	See. 	e.g., 	San Diego Teachers Assn. 	v. 	Superior
Court 	(1979) 	12 Cal.3d 1, 	12-13; 	Fire Fighters Union v. 	City of
Vallejo 	(1974) 	12 Cal.3d 608, 	616.
8

School District 	(1988) 	PERB Decision No. 	659, 	p. 	9, 	and cases
cited therein. 	In the collective bargaining 	context, 	the Board
has 	long 	viewed 	as 	unlawful 	employer 	communications 	with
employees 	which bypass 	the 	exclusive 	representative 	or
undermine 	that 	representative's 	authority 	to 	represent 	unit
members 	in collective bargaining. 	The 	"touchstone" 	for
determining 	the 	propriety 	of 	an 	employer's 	direct 	communication
with employees 	is 	the effect 	on 	the 	authority of 	the 	exclusive
representative. 	Muroc Unified 	School 	District 	(1978) 	PERB
Decision No. 80, pp. 19-20.
In 	evaluating 	employer 	speech 	to 	determine whether 	it 	is
protected under 	the 	above principles, 	the Board has 	also 	placed
considerable weight 	on 	the 	accuracy of 	the 	speech. 	Alhambra
City and High 	School 	Districts 	(1986) 	PERB Decision No. 	560,
p. 	16; Muroc Unified School District, 	supra, 	p. 	22. 	Where
employer 	speech, 	which accurately describes 	an event, 	does 	not
on 	its 	face carry the threat 	of 	reprisal 	or 	force, 	or 	promise
of 	benefit, 	the Board will not 	label 	the 	speech unlawful.
As 	CSU points 	out 	in 	its 	post-hearing 	brief, 	statements
simply describing 	the 	contents 	of 	the Governor's 	final 	budget,
standing 	alone, 	are not 	of 	the 	type which 	are 	likely to 	coerce
employees 	or 	otherwise 	interfere with 	the 	exercise 	of 	employee
rights. 	Nor 	are 	they of 	the 	type which 	are 	likely to 	undermine
the 	exclusive 	representative. 	They are more 	akin to 	the 	kinds
of 	statements 	routinely made 	as 	part 	of 	the budget 	setting
process 	in the public sector. 	Therefore, 	to 	the extent 	that
9

the Wrap-Up 	simply described 	the 	contents 	of 	the 	budget 	and
reported the Trustees' 	response to the budget, 	it 	is not viewed
as unlawful. 	There 	is 	no prohibition against 	an employer
communicating 	in 	an 	noncoercive way with bargaining 	unit
employees 	on negotiable 	subjects 	during 	negotiations. 	See
Muroc Unified School District, 	supra, 	p. 	21.
However, 	the 	bargaining 	context 	in which 	the 	publication
was 	issued, 	and 	the 	inaccurate message conveyed, 	compel 	closer
scrutiny. 	The Wrap-Up 	definitively 	stated 	that 	the 	Trustees
accepted 	the 	four-percent 	increase 	and 	that 	it 	"will 	take
effect January 1, 	1988". 	This 	language, 	while not 	assuring 	a
four-percent 	raise, 	certainly 	implies 	that 	CSU had unilaterally
fixed 	the 	salary 	increase. 	Equally important, 	the 	language
unequivocally 	sets 	the 	effective date 	of 	any 	raise. 	According
to 	the 	stipulation, 	CSEA 	initially proposed 	an 	increase 	higher
than 	four 	percent. 	The 	request 	for 	impasse, 	filed on July 23,
1987, 	establishes 	that 	the parties had not 	reached 	agreement
and were 	at 	impasse 	regarding 	salary as 	of 	that date. 	It
follows 	that 	there was 	no 	agreement on 	salary as 	of 	July 	15,
1987, 	the date 	the Wrap-Up was 	issued. 	Yet 	the Wrap-Up 	implied
that 	bargaining 	unit 	employees 	would 	receive 	a 	four-percent
increase 	and 	clearly established 	that 	the 	increase 	"will 	take
effect 	on January 1, 	1988." 	There 	is no 	language 	in the
Wrap-Up which 	can 	be 	interpreted 	as 	qualifying 	these 	events 	on
the 	outcome of 	the negotiating process. 	Since 	the 	salary
adjustment was 	still on the table as of July 15, 	1987, 	the
10

message 	delivered 	by the Wrap-Up was 	plainly premature, 	as well
as 	inaccurate. 	It 	suggested that 	the 	salary increase, 	as well
as 	the 	implementation date, 	would be determined by CSU, 	not
through 	the 	bilateral 	give 	and 	take 	contemplated 	by 	the Act.
That 	the 	parties 	eventually 	agreed 	to 	a 	four-percent 	increase
effective January 1, 	1988, 	standing 	alone, 	does not 	lessen the
impact 	of 	this 	suggestion.
Another 	interpretation, 	offered by CSU in 	its 	brief, 	is
that 	the Wrap Up delivered 	no 	promise 	and was 	not 	inaccurate.
In other words, 	the Wrap Up may be viewed 	as 	a mere 	recognition
that 	the 	budget 	included 	enough money 	for 	a 	four-percent
increase, 	and mere 	silence 	about 	future 	salary negotiations
does 	not 	necessarily point 	to 	an unwillingness 	to 	bargain.
This 	interpretation is not 	implausible. 	However, 	it 	is 	not
accepted here. 	The 	statements 	in 	the Wrap Up cannot 	be 	read 	in
isolation. 	The 	language 	implying 	that 	there would be 	a
four-percent 	increase 	and 	the 	language 	clearly 	setting 	the
effective date, 	when read 	together, 	indicate 	that 	CSU had 	set
the salary rate 	as well 	as 	its 	effective date. 	In any event,
even 	if 	the Wrap Up 	is 	interpreted 	as 	not 	setting 	the 	salary
rate 	it would not 	change 	the outcome of 	this 	decision, 	since
the 	language unequivocally 	setting 	the 	effective date, 	unlike
the 	language covering 	the 	four-percent 	raise, 	does 	not 	lend
itself 	to 	an alternative 	interpretation. 	Indeed, 	the 	statement
in 	the Wrap Up 	attributed 	to 	Chancellor 	Reynolds 	to 	the 	extent
that 	the 	raises 	"do 	not 	take effect until 	next year" 	tends 	to
11

support 	this 	interpretation.
Even 	the 	Governor's 	budget 	recognized 	the 	negotiations
obligation 	imposed by the Act. 	In essence, 	it 	provided,
"subject 	to 	collective bargaining," 	for 	"up to 	a 	four 	percent
general 	compensation 	increase 	package." 	The 	budget 	also
revised certain 	language which, 	in the Governor's words, 	would
"contravene the 	. 	. 	. 	[Act]. 	. 	. 	. 	[r]egarding the rights of
[employers 	and employees] 	to determine wages, 	hours 	and other
terms 	and 	conditions 	of 	employment 	through 	collective
bargaining."
It 	is 	recognized that 	the 	statements 	in the Wrap-Up 	are 	not
of 	the most 	egregious 	nature. 	There was 	only a 	single
statement, 	there 	is 	no 	evidence 	that CSU engaged 	in 	an ongoing
campaign 	to 	sway employee 	opinion, 	and 	the 	parties 	eventually
reached 	an agreement. 	And there 	is 	admittedly a 	"fine 	line"
between protected 	speech 	and 	prohibited 	speech. 	See 	e.g., 	Rio
Hondo Community College District, 	supra, 	p. 	24-25.
Nevertheless, 	statements 	from the highest 	level 	in the CSU
hierarchy during 	the course 	of 	negotiations which, 	viewed
objectively, 	suggest that 	the employer 	has 	the 	sole 	authority
to 	impose 	salary 	schedules 	or 	other 	negotiable 	terms 	and
conditions 	of 	employment 	are 	of 	the 	type which 	tend 	to
interfere with 	and 	coerce 	employees 	in 	the exercise 	of
protected 	rights. 	Employees 	who 	presumably are 	aware 	of 	the
negotiating process 	(and, 	in particular, 	the 	statutory right 	to
negotiate 	about 	salaries) 	are 	left 	to question the
12

effectiveness 	of 	their 	elected 	representatives 	at 	the 	table.
Such 	statements 	similarly 	tend 	to 	diminish 	the 	authority of 	the
exclusive 	representative 	at 	the table, 	as well 	as 	in the eyes
of 	bargaining unit 	employees. 	In this 	case CSEA was 	put 	in the
awkward 	position of 	reading 	communications 	in 	the Wrap Up 	about
the 	four-percent 	increase 	and 	its 	effective date 	at 	precisely
the 	time 	that 	the 	salary issue was 	on the 	table. 	Even 	in the
absence of 	anti-union motive, 	the 	statements 	in the July 15,
1987 	Wrap-Up 	undermined 	CSEA 	and 	undercut 	the 	prospects 	for 	the
type 	of 	bargaining 	relationship 	contemplated 	by the Act.
It 	is 	also 	recognized 	that 	negotiators 	in 	the 	public 	sector
may confront 	an uncertain 	financial 	picture which 	can 	pose 	a
serious 	impediment 	to 	fruitful 	negotiations 	and 	thus 	present 	a
myriad 	of 	issues 	during 	negotiations. 	Awaiting 	final 	budget
action 	from the Legislature or 	the Governor, 	under 	the
circumstances, 	cannot be 	said 	to 	breach the obligation to
negotiate 	in good 	faith, 	cf. 	Association of 	California 	State
Attorneys 	and Administrative 	Law Judges 	v. 	State 	of 	California
(Department 	of 	Personnel Administrative 	(1986) 	PERB Decision
No. 	569-S. 	Thus, 	if CSU had merely announced 	acceptance of 	the
budget 	and 	its 	terms, 	while 	recognizing 	in 	some way the
negotiating 	obligation 	imposed 	by the Act, 	the 	comments 	about
the 	salary 	increase 	and 	its 	effective date would 	have 	been
within 	the 	protections 	afforded 	by 	the 	cases 	cited 	above.
However, 	the Wrap-Up did not do 	so. 	Saying nothing 	about 	the
obligation 	to 	negotiate, 	the Wrap Up 	announced with 	finality
13

the 	terms 	of 	a 	negotiable 	subject while 	that 	particular 	subject
was 	still 	on 	the 	table.
Negotiations 	do 	not 	necessarily 	end 	with 	the 	Governor's
budget. 	Acceptance of 	the budget may not mandate use of 	the
funds 	in precisely 	the manner 	suggested 	by 	the 	language 	of 	the
budget. 	Assuming 	some 	flexibility 	in 	the way the money 	is
spent, 	funds 	may be expended 	in ways which 	are not 	precisely in
conformity with the budget 	itself. 	In this case, 	for example,
the Governor 	provided 	"up 	to 	a 	four 	percent 	general
compensation 	increase 	package" 	and 	clearly 	stated 	his
preference 	that 	CSU not 	exercise 	the 	"broader 	authority" 	to
use, 	for employee compensation 	increases, 	monies 	other 	than
what 	was 	specifically 	appropriated 	for 	compensation 	increases.
The Governor 	noted 	that 	"if 	CSU Trustees 	decide 	to 	use 	this
broader 	authority, 	I 	am requesting 	they 	report 	back to me 	and
the Legislature 	for 	concurrence 	prior 	to 	the 	expenditure 	of 	any
other 	funds 	other 	than 	those 	specifically 	appropriated 	for
compensation 	purposes." 	CSEA may have 	been unsuccessful 	in
persuading 	CSU 	to 	exercise 	its 	"broader 	authority," 	or 	CSEA may
have chosen to not pursue the matter. 	However, 	it 	is 	the
essence 	of 	collective 	bargaining 	that 	the 	exclusive
representative 	at 	least 	be 	given the 	opportunity to 	decide
which course 	to 	pursue. 	The Wrap-Up 	suggests 	that 	the 	employer
alone 	is 	entitled 	to make 	that 	choice.
During 	the negotiations CSEA, 	as 	exclusive 	representative,
was 	obligated 	to weigh many demands, 	priorities 	and 	interests
14

of 	employees 	in four bargaining units, 	and 	subgroups 	of
employees within each unit. 	By the 	statements 	in the Wrap-Up,
CSU 	interfered with 	this 	opportunity. 	As 	CSEA points 	out 	in
its brief, 	"on July 7, 	1987, 	the Trustees had increased
authority 	and 	independence 	to 	meet 	and 	confer 	in 	good 	faith 	on
wages 	and 	benefits 	and 	to 	attempt 	to 	reach 	agreement. 	There
was 	no 	specific mandated wage or 	benefit 	increase, 	only
advisory 	language 	and 	an 	appropriation which was 	not 	limiting."
For 	the 	reasons 	noted 	above, 	the comments 	in the Wrap-Up
were unlawful.
CONCLUSION
Based on the 	foregoing, 	it 	is 	concluded that 	the 	statements
in 	the Wrap-Up 	are 	of 	the 	type which 	tend 	to 	undermine 	the
exclusive 	representative 	in 	the eyes 	of 	bargaining 	unit
employees. 	The 	same 	statements 	tend 	to 	interfere with 	the
rights 	of 	unit 	employees 	to 	be 	represented 	by their 	duly
elected 	employee organization. 	In 	the 	absence 	of 	any
justification by CSU for 	the 	statements, 	it 	is 	concluded 	that
the Wrap-Up 	issued on July 	15, 	1987 violated 	sections 	3571(a)
and 	(b). 	Carlsbad Unified School District 	(1979) 	PERB Decision
No. 89.
REMEDY
Section 3563.3 	sets 	forth the Board's 	remedial 	power, 	that
section 	states:
The board 	shall 	have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from the unfair
15	15

practice 	and 	to 	take 	such 	affirmative
action, 	including, 	but not 	limited to, 	the
reinstatement 	of 	employees 	with 	or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
In this 	case 	it 	has 	been determined 	that 	CSU, 	through
public 	statements 	in 	the Wrap-Up 	published 	during 	the 	course 	of
negotiations, 	undermined CSEA, 	the exclusive representative, 	in
violation of 	section 3571(b). 	It has 	also been found that 	the
same 	conduct 	interfered with 	the 	right 	of 	bargaining 	unit
employees 	to 	be 	represented 	by 	the 	employee 	organization 	of
their choice, 	in violation of section 3571(a). 	It 	is 	therefore
appropriate 	to 	order 	the 	respondent 	to 	cease 	and desist 	from
such conduct 	in the 	future.
It 	also 	is 	appropriate 	that 	the District 	be 	required 	to
post 	a notice 	incorporating 	the terms of 	the order. 	The notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	California
State University Board 	of 	Trustees 	indicating 	that 	it will
comply with the 	terms 	thereof. 	The notice 	shall 	not 	be 	reduced
in size. 	Posting 	such 	a notice will 	provide employees with
notice 	that 	the CSU has 	acted 	in 	an unlawful 	manner 	and 	is
being 	required 	to cease 	and desist 	from this 	activity. 	It
effectuates 	the 	purposes 	of 	the HEERA that 	employees 	be
informed 	of 	the 	resolution of 	the 	controversy 	and will 	announce
the CSU's's 	readiness 	to 	comply with the ordered 	remedy. 	See
Placerville Union School District 	(1978) 	PERB Decision No. 	69;
Pandol 	and 	Sons 	v. 	Agricultural Labor Relations 	Bd. 	(1979)
16

98 Cal.App.3d 580, 	587; 	NLRB v. 	Express Publishing Co. 	(1941)
312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record 	in the case, 	and pursuant 	to 	section
3563.3, 	it 	is 	hereby ordered that 	the California 	State
University Board 	of 	Trustees 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Issuing 	statements 	in the 	"Wrap-Up" 	or other
publications 	during 	the 	course 	of 	negotiations 	which 	tend 	to
interfere with 	the 	right 	of 	bargaining 	unit 	employees 	to 	be
represented 	by 	the 	exclusive 	representative 	California 	State
Employees Association, 	SEIU Local 	1000.
(b) 	Issuing 	statements 	in the 	"Wrap-Up" 	or other
publications 	during 	the 	course 	of 	negotiations 	which tend 	to
interfere with 	the 	right 	of 	the 	California 	State 	Employees
Association, 	SEIU Local 	1000 	to 	represent bargaining unit
employees.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
(1) 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post 	at 	all 	sites 	and 	all 	other work
locations where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice 	attached hereto 	as 	an Appendix. 	The
Notice 	must 	be 	signed 	by 	an 	authorized 	agent 	of 	the 	California
State University Board 	of 	Trustees 	indicating 	that 	the 	CSU will
17

comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained 	for 	a 	period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the Notice 	is
not 	reduced 	in 	size, 	altered, 	defaced or covered by any other
material.
(2) 	Upon issuance of 	a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the Order 	to
the Los 	Angeles 	Regional 	Director 	of 	the 	Public Employment
Relations 	Board 	in 	accordance with his 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a party files 	a 	timely statement 	of
exceptions with 	the Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 20 days 	of 	service of 	this Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied upon for 	such exceptions. 	See
California Administrative Code title 	8, 	part 	III,
section 	32300. 	A document 	is 	considered 	"filed" 	when 	actually
received before 	the close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for 	filing, 	". 	. 	. o r when sent by telegraph or
certified or Express United 	States mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of
18

exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on 	a 	party or 	filed
with 	the Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	April 25, 	1988 Fred 	D'Orazio
Administrative Law Judge
19