Huntington Beach Union High School District (McKinney) (PERB 1016E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LEON E. 	MC KINNEY,
Complainant,
v.
HUNTINGTON BEACH UNION HIGH SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-PN-135
PERB Decision No. 	1016
October 	7 	1993
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Appearances; 	Leon E. 	McKinney, 	on his own behalf; 	Rutan & Tucker
by David C. 	Larsen, 	Attorney, 	for Huntington Beach Union High
School District.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on an appeal 	filed by Leon E.
McKinney 	(McKinney) 	of a Board agent's 	dismissal 	of 	his public
notice 	complaint 	(attached) 	as 	untimely filed and 	failing 	to
state a prima 	facie violation. 	McKinney's basis 	of appeal 	is
that: 	(a) 	the Huntington Beach Union High School District
(District) 	should have 	formally adopted the 	initial 	proposal
before negotiating and 	(b) 	the 	complaint was 	timely because 	of
the 	date McKinney 	obtained actual 	knowledge 	of 	negotiations.
McKinney 	concludes 	that 	a prima 	facie violation was 	established.
Based 	on a 	review of 	the 	entire 	case 	record we 	affirm the
dismissal.

DISCUSSION
The Educational 	Employment Relations Act 	(EERA) 	does not
require 	formal 	adoption of a proposal prior to negotiations. 	The
goals 	of 	the 	statute are stated in EERA section 3547(e).1 The
1993 meetings 	of 	the District's board on February 9, 	March 9 	and
April 	27 	satisfy the District's 	obligations under the 	statute.
PERB Regulation 	329102 requires 	the 	complainant 	to 	file a
complaint 	no 	later 	than 3 0 	days 	after a violation 	could have been
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3547 states, 	in pertinent part:
(e) 	The board may adopt 	regulations 	for the
purpose 	of 	implementing this 	section, 	which
are 	consistent with 	the 	intent 	of 	the
section; 	namely that 	the public be 	informed
of 	the 	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 of 	the positions of
their 	elected 	representatives.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	Regulation section
32910 states:
A complaint 	alleging 	that 	an 	employer 	or 	an
exclusive 	representative 	has 	failed to 	comply
with Government 	Code 	sections 	3547 	or 3595
may be 	filed in the 	regional 	office. 	An EERA
complaint 	may be 	filed by an 	individual 	who
is 	a 	resident 	of 	the 	school 	district 	involved
in the 	complaint 	or who 	is 	the parent 	or
guardian of 	a 	student 	in the 	school 	district
or is an adult 	student 	in the district. 	The
complaint 	shall 	be 	filed no 	later 	than 	30
days 	subsequent 	to 	the date when conduct
alleged 	to be 	a violation was 	known or
reasonably 	could have been discovered. 	Any
period 	of 	time used by 	the 	complainant 	in
first 	exhausting 	a 	complaint 	procedure
adopted by 	an 	EERA 	or 	HEERA 	employer 	shall
not be 	included 	in 	the 	30-day limitation.
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reasonably discovered. 	McKinney's 	letter of May 21, 	1993 	to
PERB's 	Labor Relations Specialist, 	Roger Smith, 	indicates he
thought 	negotiations 	were 	occurring when he went 	into 	the March
3 0 meeting with the District 	superintendent; 	at 	that meeting he
could have 	reasonably discovered the 	situation by asking. 	He
offers 	no 	credible 	evidence 	that 	negotiations 	occurred prior 	to
March 9, 	1993. 	McKinney has 	failed to establish a prima 	facie
case 	of 	a violation 	of 	EERA's public notice 	requirement.
ORDER
The appeal of dismissal 	in Case No. 	LA-PN-135 	is DISMISSED
WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Caffrey 	joined 	in 	this Decision.
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	3

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LEON E. 	MCKINNEY,
Complainant,
v.
HUNTINGTON BEACH UNION HIGH 	SCHOOL
DISTRICT, 	,
Respondent.
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)
) 	Case 	No. 	LA-PN-135
Dismissal 	of 	Public
Notice 	Complaint
July 1, 	1993
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This 	decision 	dismisses 	the 	public 	notice 	complaint 	filed
with 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	by
Leon E. 	McKinney 	(Complainant 	or McKinney) 	on May 	13, 	1993, 	and
amended 	on May 	2 8 , 	1993, 	against 	the 	Huntington 	Beach Union High
School 	District 	(District). 	The 	complaint 	alleges 	violations 	of
Government 	Code 	section 	3547(b) 	and 	(c).1
BACKGROUND
The 	complaint, 	as 	initially 	filed, 	alleges 	that 	the 	District
engaged 	in 	negotiations 	with 	the 	exclusive 	representative 	for 	a
unit 	of 	certificated 	employees, 	the 	District 	Educators
Association 	(DEA), 	prior 	to 	the 	adoption of 	its 	own 	initial
1 Government Code 	sections 	3547(b) 	and 	(c) 	provide:
(b) 	Meeting 	and 	negotiating 	shall 	not 	take 	place 	on
any 	proposal 	until 	a 	reasonable 	time 	has 	elapsed
after 	the 	submission 	of 	the 	proposal 	to 	enable 	the
public 	to 	become 	informed 	and 	the 	public 	has 	the
opportunity 	to 	express 	itself 	regarding 	the
proposal 	at 	a 	meeting 	of 	the 	public 	school
employer.
(c) 	After 	the 	public 	has 	had 	the 	opportunity 	to
express 	itself, 	the 	public 	school 	employer 	shall
at 	a meeting which 	is 	open 	to 	the 	public, 	adopt:
its 	initial 	proposal.

proposals 	at 	a public meeting 	as 	required by Government 	Code 	sec.
3547(c).2 The Complainant 	contends 	that 	the District 	sunshined
its 	initial 	proposal 	on February 9, 	1993,3 presented the proposal
for public 	comment 	at 	a Board meeting 	on March 	9, 	and 	then,
sometime between March 9 	and April 	27, 	the date 	the District
adopted 	its 	own proposal, 	the District 	and DEA engaged 	in
negotiations.4
On May 28, 	McKinney submitted additional 	information 	to
support 	his 	case 	and amended his 	complaint 	to allege 	that 	the
District's 	initial proposal 	of 	February 9 	was not 	sufficiently
developed 	to allow 	the public 	to understand 	the 	District's
position. 	The 	Complainant 	contends 	that 	since 	the District's
proposal 	did not become official 	until April 	27, 	and he had no
confirmation 	that 	the District 	and DEA met 	prior 	to 	the March 	9,
District 	Board of 	Education meeting until 	he 	read a newspaper
article on May 20, 	the 	timeliness of his 	filing should not be at
issue.5
2See 	footnote 	1 above.
3A11 	dates 	referenced herein are 	in 	calendar year 	1993,
unless 	otherwise 	indicated.
4The 	Complainant 	relies 	on newspaper articles 	and
information gathered 	in his meeting with 	the 	superintendent. 	The
District 	admits 	through its June 	3 	letter 	to 	the undersigned 	that
following 	the March 9 	meeting negotiations 	commenced. 	The
District 	also 	acknowledges 	that 	two 	informational 	meetings
occurred with DEA prior to 	the public 	response 	date. 	The
District 	contends 	that 	it 	provided DEA with budget 	and
staffing/enrollment 	projections 	and 	scheduled 	future 	meeting
dates. 	No 	evidence 	to 	the 	contrary has 	been provided.
5See Cal. 	Code of Regulations, 	title 8, 	section 32910.
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POSITION OF 	THE 	DISTRICT
The District 	contends 	that 	no 	negotiations 	with DEA occurred
prior 	to 	the public's 	response 	to 	the 	sunshined proposals 	on
March 	9. 	The District 	further argues 	that 	to 	the 	extent 	that 	the
failure 	to 	formally adopt 	its 	proposal 	following 	the March 	9
public 	comment might 	be construed as 	a 	technical 	violation of
Government Code 3547, 	it was not timely complained of by
McKinney. 	The District asserts 	that McKinney was 	advised at 	a
March 	30 	meeting with 	the 	Superintendent 	that 	the 	District
intended 	to adopt 	its proposal 	on March 9, 	but 	due 	to 	oversight
failed 	to 	do 	so 	and had commenced bargaining with DEA.
ISSUES
1. 	Was 	the 	complaint 	timely filed?
2. 	If 	the complaint was 	timely filed, 	did the District
violate Government 	Code 	3547(c) 	by meeting and negotiating with
DEA prior 	to 	formally adopting 	its 	proposal?
3. 	If 	the complaint was 	timely filed, 	was 	the District's
proposal 	as presented on February 9 	and March 9 	sufficiently
developed 	to 	allow the public 	to 	comprehend and 	respond?
DISCUSSION
In an early PERB decision, 	Los Angeles 	Community College
District 	(1978) 	PERB Order No. 	Ad-41, 	the Board reviewed the
basis 	for 	its 	regulation 37010 	which provides 	that
"[a] 	complaint 	alleging 	that an 	employer or an
exclusive 	representative 	has 	failed 	to 	comply with 	[the
public notice provisions of 	the Government Code]...
shall 	be 	filed no 	later 	than 	thirty 	calendar days
subsequent 	to 	the date when 	conduct 	alleged 	to be 	a
3

violation was 	known 	or 	reasonably 	could 	have 	been
discovered..."6
That 	decision held:
In implementing 	the public 	notice provisions 	of
the 	EERA, 	the Board has 	adopted 	rules 	and 	regulations
that provide 	for expedited proceedings 	so 	that 	the
right of 	the public 	to receive notice, 	learn the
positions of 	its 	elected representatives, 	and to
express 	its 	own views 	can be 	fully protected. 	The
public notice provisions, 	however, 	were never intended
to be 	read 	in a vacuum but must 	be 	considered 	in 	light
of 	the entire 	EERA. 	The 	Legislature 	has 	determined
that 	it 	is within the public 	interest 	to achieve
improved 	employer-employee 	relations 	within 	public
school 	systems. 	The EERA was 	enacted to promote 	this
goal 	and reflects 	the 	Legislative 	judgment 	that 	the
desired 	improvement 	in 	employer-employee 	relations 	can
best 	be 	obtained though a process 	of 	collective
negotiations 	culminating 	in 	final 	agreement 	and
resulting 	in a mature 	and 	stable 	negotiating
relationship. 	In one section of the EERA, 	the public
notice section, 	the Legislature 	secured to 	the public
the 	right 	to be 	informed and to 	express 	its view on the
negotiating process. 	This public awareness 	and 	input
was 	intended to further, 	not 	impede, 	the broad goals of
the EERA.
Serious 	injury 	to 	educational 	employment 	relations
would result 	if 	concerned 	or merely disgruntled
citizens 	could utilize 	the public 	notice provisions 	of
the 	EERA to bring delayed 	challenges 	to 	negotiations
that 	had 	otherwise 	been 	satisfactorily 	completed.
Moreover, 	there are 	compelling reasons 	to bar untimely
public notice 	complaints 	even 	though 	the parties 	may
not yet have 	reached agreement. 	While 	the 	Board has
specifically provided 	in 	its 	rules 	and 	regulations 	that
the pendency of 	a public 	notice 	complaint 	will 	not
cause negotiations 	to 	cease, 	the 	filing of 	a 	complaint
nonetheless 	has 	an unsettling 	effect 	on 	the
negotiations 	in progress. 	This 	is 	so because 	should
such a complaint be 	found 	to have merit, 	the 	status 	of
any 	final 	agreement 	between the parties 	is 	uncertain
and 	they must 	necessarily 	divert 	their 	attention 	from
reaching agreement 	to 	defending 	against 	the 	charge.
That 	the parties may ultimately be vindicated 	in 	their
conduct 	does 	not 	save 	the 	negotiating process 	from
6This 	regulation was 	subsequently 	renumbered 	32910. 	(See
footnote 	5.)
44

harm, 	for the damage occurs when 	the unreasonably
delayed complaint 	is 	filed. 	A citizen who 	seeks 	to
file 	a 	complaint 	alleging a violation of 	the public
notice provisions 	after 	the prescribed 	time 	has 	elapsed
could 	thus 	thwart 	the very harmony between 	the 	employer
and 	its 	employees 	sought 	to be 	promoted by 	the 	EERA.
Accordingly, 	we 	conclude 	that 	such untimely 	complaints
must be barred. 	(Id.)
In analyzing the 	instant 	complaint, 	it 	is undisputed 	that
the public was made 	aware 	of both DEA's 	and the District's
initial 	proposals 	as 	of 	February 9 	and that 	the public 	had 	the
opportunity to address 	its 	comments 	at a March 9 	public meeting.
In fact, 	the minutes 	from that meeting 	indicate 	that 	the
Complainant, 	Mr. 	Jim Ball, 	and Mr. 	Joe Wagner responded to the
sunshined proposals 	using overhead 	transparencies 	to 	outline
their perspective as 	concerned members 	of 	the public.
Based on the 	facts and precedent, 	Complainant's 	allegation
contained 	in his May 27 amendment, 	that 	the District's proposal
as 	presented on February 9 	and formally adopted on April 	27, 	was
not 	specific enough, 	is not timely filed. 	The Complainant was
aware 	of 	the 	language 	of 	the District's proposal 	for more 	than
three months 	and 	could have 	sought 	clarification at 	any 	time.
The 	contention that 	the proposal 	is 	a 	"talking paper" 	and did not
become official 	until 	adopted by the 	school board on April 	2 7 	is
not 	supported by 	law or 	fact.
As 	to 	the manner 	in which 	the 	District 	sunshined 	its
proposals, 	PERB has 	held 	that 	the 	only prescribed order 	for
employers 	to 	comply with 	the public 	notice provisions 	of
Government 	Code 	section 3547 	is 	that 	the public must 	be 	apprised
of 	a proposal 	with enough notice 	to 	allow analysis 	and
-
- . .
5

consideration prior to the receipt of public 	comment, 	and, 	no
meeting 	and negotiating 	regarding 	the 	subject matter 	of 	the
proposal 	shall 	occur between the 	employer and exclusive
representative 	before public 	comment 	has 	been 	received and
considered by the 	duly elected school 	board members. 	There 	is 	no
requirement 	that 	the 	employer 	formally adopt 	its 	proposal 	prior
to entering 	into negotiations. 	(See Los Angeles 	Community
College District 	(1984) 	PERB Decision No. 	455.)
There 	is 	no evidence 	to demonstrate 	that 	the District 	and
DEA entered 	into negotiations 	relating 	to 	each 	other's 	initial
reopener proposals 	before public 	comment was 	accepted on March 	9.
Even assuming 	arguendo 	that 	the 	District 	and DEA negotiated prior
to March 9, 	the 	Complainant had knowledge 	of 	the 	relevant
information as 	of March 30 	when he met 	with the 	Superintendent
relating 	to his 	concerns 	about bargaining, 	and therefore would
have had to 	submit his 	complaint 	to PERB7 not 	later than April
29. 	McKinney's 	assertion that he did not 	have verification of
the 	District 	and DEA meeting prior 	to March 	9 	until 	he 	read a
newspaper article 	on May 20 	does 	not 	comport 	with 	the 	Board's
standard 	for determining 	the 	timeliness 	of 	a 	filing. 	McKinney's
complaint, 	even if valid, 	was 	filed too late 	for recourse with
PERB.
-
7In Healdsburg Unified School 	District 	(1984) 	PERB Decision
No. 	467, 	PERB held that timelines 	commence when the conduct
constituting 	the violation 	is 	discovered, 	not 	from the 	date 	the
legal 	significance 	of 	the matter 	is 	discovered, 	or from the 	date
the matter 	is 	verified. 	See 	also California State 	Employees--------- - 	--
Association 	(19 85) 	PERB Decision No. 	546-S, 	and Fairfield-Suisun
Unified School District 	(1985) 	PERB Decision No. 	547.
66

CONCLUSION
For the 	foregoing reasons, 	the 	complaint and amendment are
DISMISSED 	for being 	untimely 	filed and 	for 	failing 	to 	state a
prima 	facie violation.
Right 	to Appeal
Pursuant 	to 	Public 	Employment Relations 	Board regulations,
any party 	adversely affected by 	this 	ruling may appeal 	to 	the
Board 	itself 	by 	filing a written appeal 	within 	twenty 	(20)
calendar days 	after 	service 	of 	this 	ruling 	(California 	Code 	of
Regulations, 	title 8, 	section 32925) . 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such appeal must be actually 	received
by the Board itself 	before 	the 	close of business 	(5:00 p.m.) 	or
sent by telegraph, 	certified or Express United States mail
postmarked no 	later 	than the 	last 	date 	set 	for 	filing 	(California
Code of Regulations, 	title 8, 	section 32135). 	Code of Civil
Procedure section 1013 	shall apply. 	The Board's address 	is:
Members, 	Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
The appeal must 	state 	the 	specific 	issues 	of procedure,
fact, 	law or rationale that are appealed, 	must 	clearly and
concisely 	state 	the grounds 	for each issue 	stated, 	and must 	be
signed by 	the 	appealing party or its 	agent.
If a timely appeal 	of 	this 	ruling is 	filed, 	any other party may
file with the' Board itself 	an original and five 	copies 	of 	a
statement 	in opposition within 	twenty 	calendar days 	following 	the
date 	of 	service 	of 	the appeal 	(California Code 	of Regulations,
77

00
title 8, 	section 32625). 	If no timely appeal 	is 	filed, 	the
aforementioned 	ruling 	shall 	become 	final 	upon 	the 	expiration 	of
the 	specified time 	limits.
Service
All 	documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all 	parties 	to 	the proceeding and 	the 	Sacramento
Regional 	Office. 	A 	"proof 	of 	service" 	must 	accompany each copy
of 	a 	document 	served upon a party 	or 	filed with 	the 	Board 	itself.
(See California Code of Regulations, 	title 	8, 	section 32140 	for
the 	required contents 	and a 	sample 	form.) 	The 	appeal 	and any
opposition to an appeal 	will 	be 	considered properly 	"served" 	when
personally delivered 	or deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension 	of 	time 	in which 	to 	file 	an
appeal 	or opposition 	to an appeal 	with 	the 	Board 	itself must 	be
in writing and 	filed with 	the 	Board 	at 	the 	previously noted
address. 	A request 	for an extension must 	be 	filed at 	least 	three
calendar days before 	the 	expiration of 	the 	time 	required 	for
filing 	the document. 	The 	request must 	indicate good cause 	for
and, 	if known, 	the position of each other party regarding the
extension, 	and shall 	be accompanied by proof 	of 	service 	of 	the
request upon each party 	(California Code 	of 	Regulations, 	title 	8,
section 	32132).
DATE: 	July 1, 	1993 Roger 	Smith
Labor 	Relations 	Specialist
8