Trustees of the California State University (California Faculty Association) (PERB 1333H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TRUSTEES OF THE CALIFORNIA STATE )

UNIVERSITY, )
Charging Party, ) Case No. LA-CO-63-H
Vv. ) PERB Decision No. 1333-H
CALIFORNIA FACULTY ASSOCIATION, ) June 25, 1999
Respondent.

Appearances; Janette Redd Williams, Attorney, for Trustees of
the California State University; Rothner, Segall & Greenstone by
Glenn Rothner, Attorney, for California Faculty Association.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

CAFFREY, Chairman: This case is before the Public
Employment Relations Board (Board) on appeal by the Trustees of
the California State University (CSU) of a Board agent's partial
dismissal (attached) of an unfair practice charge. In the
charge, CSU alleged that the California Faculty Association (CFA)
insisted to impasse over non-mandatory subjects of bargaining in

violation of section 3571.1(c) and (d) of the Higher Education

Employer-Employee Relations Act (HEERA) .*

“HEERA is codified at Government Code section 3560 et seq.
Section 3571.1 states, in pertinent part:

It shall be unlawful for an employee
organization to:

(c) Refuse or fail to engage in meeting and
conferring with the higher education
employer.

The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	Board 	agent's 	partial 	warning 	and dismissal
letters, 	CSU's appeal and CFA's 	response 	thereto. 	The Board
finds 	the partial 	warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	LA-CO-63-H is AFFIRMED.
Members 	Dyer and Amador 	joined 	in this 	Decision.
(d) 	Refuse 	to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3590).
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 77 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
February 19, 	1999
Janette Redd Williams, 	University Counsel
Trustees of 	the California State University
400 Golden Shore, 	Suite 350
Long Beach, 	CA 	90802
Re: 	PARTIA
==---==----==----
L DISMISSAL LETTER
Trustees of the California State University
Faculty Association
Unfair Practice Charge No. 	LA-CO-63-H; 	Firs-v. 	California
t Amended Charge
Dear Ms. 	Redd Williams:
The above-referenced unfair practice charge, 	filed August 14,
1998, 	alleges the California Faculty Association 	(CFA) 	bargained
to 	impasse on nonmandatory subjects of 	representation. 	The
Trustees 	of 	the 	California State University 	(University or CSU)
allege this 	conduct violates Government 	Code section 3571.1(c)
and 	(d) 	of the Higher Education Employer-Employee Relations Act
(HEERA or Act).
I 	indicated to you, 	in my attached letter dated November 9, 	1998,
that 	certain allegations 	contained in the 	charge did not 	state a
prima facie case. 	You were advised that, 	if there were any
factual 	inaccuracies or additional 	facts which would correct 	the
deficiencies explained in that 	letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended these
allegations 	to 	state 	a prima 	facie case or withdrew them prior to
November 16, 	1998, 	the allegations would be dismissed. 	I later
extended this deadline until November 25, 	1998.
On November 30, 	1998, 	I received a first amended charge. 	The
first 	amended charge does not provide any new factual 	arguments,
but 	instead argues 	the legal conclusions made by this Board
Agent. 	These 	legal 	arguments are presented by Charging Party in
the 	form of a confidential ten 	(10) 	page letter. 	These legal
arguments are discussed below.
On February 12, 	1998, 	the parties commenced negotiations for a
successor agreement. 	On June 19, 	1998, 	after more than twenty
bargaining sessions, 	the University informed CFA of 	its 	intent 	to
file for impasse with this agency. 	The parties agreed to hold
two additional bargaining sessions on June 30, 	1998 and July 1,
1998.

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Page 2
On July 2, 	1998, 	the University filed a Request 	for Impasse
Determination with PERB. 	On July 12, 	1998, 	CFA withdrew its
proposal 	regarding agency fee.
On July 12, 	1998, 	PERB provided parties with oral notice of 	its
decision to declare impasse. 	On July 13, 	1998, 	PERB determined
that 	impasse between the parties existed with regard to 	17
separate articles, 	including Article 1-Recognition, 	Article 12-
Appointments, 	and Article 38-Layoffs.
The University contends 	that 	CFA insisted to the point 	of 	impasse
on the 	following allegedly nonmandatory subjects 	of bargaining:
(1) 	Agency Fee; 	(2) 	Department Chairs in Bargaining Unit; 	(3)
Hiring of Temporary Employees; 	(4) 	Preferential Rehire of
Temporary Employees; 	(5) 	Establishment of 	"Continuing Temporary
Faculty Unit Employees;" 	(6) 	Replacement of Retired Faculty; 	and
(7) 	Restrictions of Layoff of Employees.
The University and CFA have a bilateral 	obligation to engage 	in
meeting and 	conferring about 	mandatory 	subjects 	of 	negotiations
that 	relate to wages, 	hours of employment and other terms and
conditions of employment. 	(Gov. 	Code sec. 	3562(r).) 	However,
the obligation to negotiate 	is not unlimited and a party may
lawfully refuse 	to negotiate 	about 	nonmandatory or permissive
subjects. 	(Trustees of the California State University 	(1997) 	22
PERC par. 	29001.) 	As to these subjects, 	"each party is free to
bargain or not to bargain, 	and to agree or not to agree." 	(NLRB
v. 	Wooster Division of Borq-Warner Corp. 	(1958) 	346 U.S. 	342,
349.)
Allegation 	1:
Allegation 1 	of 	the original 	and first 	amended charges alleges
CFA bargained to 	impasse over an agency fee proposal. 	My letter
dated November 9, 	1998, 	provided that as the proposal was
withdrawn prior to impasse determination, 	no violation took
place.
In its confidential letter, 	the University argues 	(1) 	impasse is
determined when the parties declare 	impasse, 	or alternatively 	(2)
impasse 	is determined when PERB gives oral 	notification of 	its
decision to declare impasse. 	However, 	both of these arguments
lack merit 	for the 	reasons discussed herein.
The University contends 	impasse 	is determined when the parties
declare 	impasse at 	the bargaining table. 	Although the University
cites numerous cases 	for such an argument, 	the University
overlooks 	the wording and meaning of HEERA.
PERB Regulation 32792 	states 	in relevant part:
(

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Page 	3
(a) 	After 	declaring 	impasse 	orally or 	in
writing 	to 	the 	other 	party 	or 	after 	jointly
declaring 	impasse, 	either 	or both parties 	may
request 	the 	Board 	determine 	that 	an 	impasse
exists 	and 	appoint 	a mediator. 	(emphasis
added.)
PERB 	Regulation 	32793 	further 	states:
(a) 	The 	Board shall, 	within 	five working days
following 	the 	receipt 	of 	the 	written 	request
for 	appointment 	of 	a 	mediator, 	orally notify
the 	parties 	that 	the 	Board 	determined 	that:
(1) 	An 	impasse 	exists 	and 	a
mediator has 	been appointed, 	or
(2) 	Impasse has 	not 	been 	reached.
As 	both provisions 	vest 	the 	determination 	of 	impasse 	with 	the
Board 	itself, 	it 	is 	clear 	that 	impasse 	exists 	only when 	the 	Board
makes 	such 	a 	determination, 	not 	when 	one 	or both of 	the 	parties
believe 	impasse 	has 	been 	reached. 	Indeed, 	although both parties
may declare 	impasse, 	the 	Board may determine 	that 	impasse 	does
not 	exist 	and 	send 	the 	parties 	back 	to 	the 	bargaining 	table.
Such 	a power 	rests 	entirely with 	the 	Board, 	and not 	with 	the
parties.
The 	University argues 	in 	the 	alternative 	that 	impasse 	exists 	when
the 	Board 	orally notifies 	the 	parties 	under 	PERB 	Regulation
32793. 	However, 	an understanding of 	PERB processes 	and past
practice 	demonstrates 	that 	a 	PERB 	decision 	is 	not 	final 	and
binding 	until 	served 	on 	the 	parties 	pursuant 	to 	PERB 	Regulation
32140. 	Moreover, 	such a 	interpretation would, 	in the 	instant
charge 	and others 	to 	follow, 	require parties 	to 	demonstrate 	that
proposals 	were 	withdrawn prior 	to 	receipt 	of 	the 	Board Agent's
telephone 	call 	or 	message.1 Such 	an 	interpretation 	is
incongruous 	and beyond 	the 	scope 	of 	PERB 	Regulations. 	As 	such,
this 	allegation must 	be 	dismissed, 	as 	CFA withdrew 	the 	proposal
prior 	to 	PERB's 	determination 	of 	impasse.
Allegation 	2:
With 	regard 	to Allegation 2, 	CFA's 	proposal 	states:
1 Indeed, 	the 	University 	fails 	to 	demonstrate 	that 	CFA
withdrew 	the 	proposal 	after 	PERB 	orally 	notified 	the 	parties 	of
its 	decision.
(

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Page 4
1.6: 	The parties agree 	that 	all 	department
chairs 	and department heads 	shall 	be 	included
in the bargaining unit.
This proposal 	is 	identical 	to the 	language 	included in Article
1.6 of 	the recently expired agreement. 	However, 	the University
now objects 	to this 	language as nonmandatory.
The University contends 	that 	acceptance of 	such a proposal 	would
now restrict 	their right 	to exclude 	supervisory employees 	from
the bargaining unit, 	and would instead vest bargaining unit
appropriateness with CFA, 	and not 	PERB. 	As noted in my November
9, 	1998, 	letter, 	Article 1.2 of the proposed Agreement prohibits
the bargaining unit 	from including any management 	or supervisory
employees. 	As such, 	it is still unclear how such a proposal
would require 	the University to waive any management 	rights 	it
already possess.
The University is 	correct 	in stating that 	bargaining unit
appropriateness is vested exclusively in PERB. 	Indeed, 	with
regard to department chairs at the University, 	PERB has already
made a determination and found that 	department 	chairs are not
supervisory and should be 	included in the unit. 	In In the Matter
of Unit Determination for Employees of 	the California State
University and Colleges Pursuant 	to Chapter 744 	of 	the Statutes
of 	1978 	(Higher Education Employer-Employee Relations Act 	(1981)
PERB Order No. 	JR-ll-H, 	PERB determined that all but nine 	(9) 	of
the department 	chairs employed by the University belonged in the
bargaining unit represented by CFA. 	Thus, 	it is unclear why a
restatement 	of 	this 	determination now violates 	the HEERA. 	As
this proposal does not violate the HEERA, 	this allegation must be
dismissed.
•
Allegation 3:
Allegation 3 	deals with the hiring of temporary employees. 	CFA's
proposal provides 	in relevant part:
12.10: 	There shall be no first 	time
appointments of 	temporary faculty in the CSU
until 	such time that 	the ratio of temporary
faculty to total 	faculty is reduced to 	.38.
This 	shall 	be accomplished by the beginning
of the fall term 1999. 	. 	. 	The employer
shall 	attain this goal by consolidating part-
time and temporary positions, 	converting the
positions 	into tenure-track positions, 	and
filing 	the positions with qualified temporary
faculty.
i

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The University argues, 	by citing Webster's 	dictionary definitions
for 	"criteria" 	and 	"standards", 	that this proposal violates
Government Code section 3562(r)(4), 	which provides:
The scope of representation shall not
include:
(4) 	Criteria and standards to be used for
appointment, promotion, evaluation, and
tenure of academic employees.
As stated in my November 9, 	1998, 	letter, 	the University fails to
demonstrate what 	criteria or standards CFA is attempting to
bargain. 	Whether employing the Webster's definition of
"criteria" 	or 	"standards" 	or whether employing a basic
understanding of such terms, 	the allegation still 	fails to state
a prima facie case. 	The University does not demonstrate that
CFA's proposal 	attempts to establish a means of judging employees
or applicants, 	nor does the proposal establish a rule or basis of
comparison for measuring applicants or employees. 	Instead, 	the
proposal 	attempts 	to limit 	the number of new temporary employees,
thereby increasing job opportunities 	and work for those 	employees
previously hired as 	temporary 	faculty.
As the Board stated in Jefferson School District 	(1980) 	PERB
Decision No. 	133, 	the question of reemployment necessarily
involves 	future entitlement 	to wages and benefits and affects
hours worked by bargaining unit members who are reemployed, 	and
therefore is within the scope of representation. 	Moreover, 	CFA's
proposal 	is much like a work preservation proposal, 	which the
Board has 	consistently found to be within the 	scope of
representation. 	(See, 	State of California 	(Department of
Personnel Administration) 	(1987) 	PERB Decision No. 	648-S.) 	The
proposal attempts to limit 	the number of temporary employees
hired by the University, 	and thus preserve the number of valuable
tenure-track positions.2 The privileges 	and rights afforded to
tenure-track employees are much greater than those 	afforded to
temporary faculty, 	and CFA has 	a vested interest 	in preserving
tenure-track work and its benefits. 	(See, 	Fremont Unified School
District 	(1997) 	PERB Decision 1240, 	where Board found District
violated Act 	when it unilaterally changed the past practice
regarding the reemployment of temporary teachers.) 	As such, 	this
allegation is dismissed.
2 Tenure-track employees 	serve on departmental 	committees,
engage in student 	advising and admissions, 	serve on peer review
committees 	for promotion and evaluation, 	and handle class
scheduling. 	Temporary employees are not afforded such benefits.

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Allegation 	4:
With regard to Allegation 4, 	Probationary Appointments, 	CFA's
proposal 	states 	in pertinent part:
12.17c: 	Each peer review committee shall
give preference to candidates with teaching
experience in the CSU. 	. 	.
As in Allegation 3, 	above, 	the University contends that insisting
to 	impasse upon 	"preferences" 	constitutes bad faith bargaining as
it 	interferes with the criteria and standards of appointment. 	As
noted in my November 9, 	1998, 	letter, 	the University fails to
provide any facts demonstrating a 	"preference" 	interferes with
the means by which applicants 	are 	judged or the rules used to
compare candidates.
The University also asserts the 	"preference" 	will undoubtedly
lead to grievances and unfair practice charges. 	However, 	the
University does not 	explain why their denial 	of a tenure-track to
former or current 	employees would cause more grievances or
complaints with the preferences. 	Indeed, 	it seems likely current
or former employees would grieve 	their denial 	of 	tenure-track
positions whether they received preference or not. 	As 	such, 	this
allegation must 	be 	dismissed.
Allegation 5:
CFA's proposal 	in Allegation 5 	regarding 	"Continuing Temporary
Faculty Unit Employees," provides:
12.13: 	Temporary faculty unit 	employees who
have completed twelve 	(12) 	semesters or
eighteen 	(18) 	quarters of service on a single
campus in the same academic department 	. 	. 	.
shall be eligible for employment 	as
Continuing Temporary Faculty Unit 	Employees.
12.14: 	Continuing Temporary Faculty Unit
Appointments 	shall be defined as 	temporary
bargaining unit 	appointments 	that
automatically continue 	each 	successive
academic year unless 	the 	Continuing Temporary
Faculty Unit Employee 	is notified no later
than June 1 that he or she will not be
retained . 	. 	. 	Such notice shall not
constitute a layoff.
. 	. 	. 	[A]fter notification, 	the Continuing
Temporary Faculty Unit 	Employee 	shall 	have
!

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Page 7
preference 	for courses 	in the department
which continue 	to be offered and which will
not be assigned to 	tenure 	track faculty.
The University again contends 	this proposal 	interferes with the
criteria and standards for appointments. 	However, 	for the
reasons stated regarding Allegation 3, 	above, 	the allegation
fails to state a prima facie case.
CFA's proposal provides 	that 	temporary employees 	serving twelve
(12) 	consecutive semesters in the same department, 	on the same
campus, 	would automatically continue 	to be employed by the
University unless 	the University informed the 	employees by June
1. 	It is unclear how this proposal violates the University's
right 	to determine 	the criteria and standards 	for appointment.
Indeed, 	the proposal 	itself states the employees must have
received satisfactory or better evaluations. 	Moreover, 	the
proposal 	does not 	require the University to continue 	to employ
these teachers, 	but 	instead states that the University must
inform the employees by June 1, 	if they are not going to be
rehired for the 	following semester. 	The University fails 	to
demonstrate 	this proposal 	infringes on the criteria and standards
for appointment. 	Instead, 	this proposal provides reemployment
rights for temporary faculty, 	which is a negotiable subject.
(See, 	Jefferson School District 	(1980) 	PERB Decision No. 	133; 	San
Mateo City School District 	(1984) 	PERB Decision No. 	383.)
Right 	to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must contain
the case name and number, 	and the original and five 	(5) 	copies of
all documents must be provided to the Board.
A document 	is 	considered 	"filed" 	when actually received before
the close of business 	(5 p.m.) 	on the last day set for filing or
when mailed by certified or Express United States mail, 	as shown
on the postal 	receipt or postmark, 	or delivered to a common
carrier promising overnight delivery, 	as 	shown on the carrier's
receipt, 	not later than the last day set 	for filing. 	(Cal. 	Code
Regs., tit. 8, sec. 32135 (a); see also Cal. Code Regs., tit. 8,
sec. 32130.)
A document 	is 	also 	considered 	"filed" 	when received by facsimile
transmission before the close of business on the last day for
filing together with a Facsimile Transmission Cover Sheet 	which

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Page 8
meets the requirements of Cal. 	Code Regs., 	tit.8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
If you file 	a 	timely appeal 	of 	the refusal 	to 	issue 	a complaint,
any other party may 	file 	with 	the 	Board an original 	and 	five
copies of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany each copy of 	a 	document 	served upon 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a document
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 	(3) 	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. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132.)

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Page 9
Final Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Glenn Rothner

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
November 9, 	1998
Janette Redd Williams, 	University Counsel
Trustees of 	the California State University
400 Golden Shore, 	Suite 350
Long Beach, 	CA 	90802
Re: 	PARTIA
==---==---==---
L WARNING LETTER
Trustees of the California State University v
-. 	California
Faculty Association
Unfair Practice Charge No. LA-CO-63-H
Dear Ms. Redd Williams:
The above-referenced unfair practice charge, 	filed August 14,
1998, 	alleges the California Faculty Association 	(CFA) 	bargained
to 	impasse on nonmandatory subjects of representation. 	The
Trustees 	of 	the California State University 	(University or CSU)
allege this conduct violates Government Code section 3571.1(c)
and 	(d) 	of the Higher Education Employer-Employee Relations Act
(HEERA or Act).
Investigation of the charge revealed the following. 	CFA is the
exclusive bargaining representative 	for the University's 	faculty,
both tenure-tracked and temporary. 	CFA and the University are
parties to a collective bargaining agreement 	(Agreement) 	which
expired on June 30, 	1998.
On February 12, 	1998, 	the parties commenced negotiations for a
successor agreement. 	On June 19, 	1998, 	after more than twenty
bargaining sessions, 	the University informed CFA of 	its 	intent to
file for impasse with this agency. 	The parties agreed to hold
two additional bargaining sessions on June 30, 	1998 and July 1,
1998.
On July 2, 	1998, 	the University filed a Request 	for Impasse
Determination with PERB. 	On July 12, 	1998, 	CFA withdrew its
proposal 	regarding agency fee.
On July 13, 	1998, 	PERB determined that impasse between the
parties existed with regard to 17 separate articles, 	including
Article 1-Recognition, 	Article 12-Appointments, 	and Article 38-
Layoffs.
I

Part Lai Warning Letter
LA-CO-63-H
Pacre 	2
The- 	University contends 	that CFA insisted to the point of 	impasse
on 	the 	following allegedly nonmandatory subjects 	of bargaining:
(1) 	Agency Fee; 	(2) 	Department Chairs in Bargaining Unit; 	(3)
Hiring of Temporary Employees; 	(4) 	Preferential Rehire of
Temporary Employees; 	(5) 	Establishment of 	"Continuing Temporary
Faculty Unit Employees;" 	(6) 	Replacement of Retired Faculty; 	and
(7) 	Restrictions of Layoff of Employees.
With regard to Allegation 21, 	CFA's proposal states:
1.6: 	The parties agree that all department
chairs and department heads 	shall be included
in the bargaining unit.
This proposal 	is 	identical 	to the language included in Article
1.6 	of the recently expired agreement. 	However, 	the University
now objects 	to this language as nonmandatory.
With regard to Allegation 3, 	the hiring of temporary employees,
CFA's proposal provides in relevant part:
12.10: 	There shall be no first time
appointments of 	temporary faculty in the CSU
until 	such time that 	the ratio of temporary
faculty to total 	faculty is reduced to 	.38.
This 	shall be accomplished by the beginning
of the fall term 1999. 	. 	. 	The employer
shall attain this goal by consolidating part-
time and temporary positions, 	converting the
positions into tenure-track positions, 	and
filing 	the positions with qualified temporary
faculty.
With regard to Allegation 4, 	Probationary Appointments, 	the
proposal states 	in pertinent part:
12.17c: 	Each peer review committee shall
give preference to candidates with teaching
experience in the CSU. 	. 	.
CFA's proposal 	in Allegation 5 	regarding 	"Continuing Temporary
Faculty Unit Employees," provides:
1 Allegation 1 is not described in detail as it was
withdrawn by CFA prior to the 	impasse determination. 	As 	such,
the 	content of the proposal 	is not relevant to the determination
of a prima facie case.

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12.13: 	Temporary 	faculty 	unit 	employees 	who
have 	completed 	twelve 	(12) 	semesters 	or
eighteen 	(18) 	quarters 	of 	service 	on a 	single
campus 	in the same academic department 	. 	. 	.
shall 	be 	eligible 	for 	employment 	as
Continuing 	Temporary 	Faculty 	Unit 	Employees.
12.14: 	Continuing 	Temporary 	Faculty Unit
Appointments 	shall 	be 	defined 	as 	temporary
bargaining 	unit 	appointments 	that
automatically 	continue 	each 	successive
academic 	year 	unless 	the 	Continuing 	Temporary
Faculty 	Unit 	Employee 	is 	notified no 	later
than June 	1 	that 	he 	or 	she 	will 	not 	be
retained 	. 	. 	. 	Such notice shall not
constitute 	a 	layoff.
. 	. 	. 	[A}fter notification, 	the Continuing
Temporary 	Faculty 	Unit 	Employee 	shall 	have
preference 	for 	courses 	in 	the 	department
which 	continue 	to 	be 	offered 	and 	which 	will
not 	be 	assigned 	to 	tenure 	track 	faculty.
With 	regard 	to Allegation 	6, 	Employee 	Retirement, 	CFA's 	proposal
provides:
20. 	During 	the 	life 	of 	the Agreement 	any
faculty unit 	employee 	retiring 	from 	the 	CSU
shall 	be 	replaced 	by 	the 	appointment 	of 	a
tenure 	track 	faculty member 	on 	the 	campus 	at
which 	the 	retirement 	has 	taken place.
Based On 	the above 	stated facts, 	allegation 1 	through 	6 	above, 	as
presently written, 	fail 	to 	demonstrate 	a prima 	facie violation 	of
the 	HEERA, 	for 	the 	reasons 	provided below.
The 	University 	and 	CFA have 	a 	bilateral 	obligation 	to 	engage 	in
meeting 	and 	conferring 	about 	mandatory 	subjects 	of 	negotiations
that 	relate 	to wages, 	hours 	of 	employment 	and other 	terms 	and
conditions 	of 	employment. 	(Gov. 	Code 	sec. 	3562(r).) 	However,
the 	obligation 	to 	negotiate 	is 	not 	unlimited and 	a 	party may
lawfully 	refuse 	to 	negotiate 	about 	nonmandatory 	or 	permissive
subjects. 	(Trustees 	of 	the 	California 	State University 	(1997) 	22
PERC par. 	29001.) 	As 	to these 	subjects, 	"each party is 	free 	to
bargain or not 	to bargain, 	and 	to agree 	or not 	to 	agree." 	(NLRB
v. 	Wooster Division of Borg-Warner Corp. 	(1958) 	346 U.S. 	342,
3 4?. )
I

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Allegation 1:
The 	University 	contends 	CFA bargained 	to 	impasse 	on an agency fee
provision. 	However, 	facts provided by CSU demonstrate CFA
withdrew this proposal prior to the impasse determination. 	As
such, 	CFA did not bargain to the point of 	impasse on this
provision.
Allegation 2:
The University alleges CFA's Article 	1.6 proposal 	is a
nonmandatory subject of bargaining, 	as 	it purportedly requires
CSU to agree that all department chairs are bargaining unit
members regardless of supervisory status. 	The University's
contention is, however, misplaced.
Proposed Article 	1.6 	states 	that all 	department 	chairs 	shall be
considered bargaining unit members. 	In reading this provision,
CSV 	ignores Article 	1.2 	of 	the proposed Agreement which states:
The parties recognize that employees in the
classifications 	listed in Appendix B of 	this
Agreement and all 	other management,
supervisory, 	and confidential employees as
defined 	in HEERA are 	excluded 	from the
bargaining unit.
Reading the agreement as a whole, 	as 	required by contract law,
the 	Article 1.6 does not require CSU to violate the HEERA, 	nor
does 	it 	require CSU to included supervisory employees 	in the
unit. 	Indeed, 	it requires nothing more of the University than
what 	they have been doing all along, 	as this provision is merely
a 	restatement of the current status quo.
The 	University also contends 	that 	the proposal violates 	PERB case
law. 	In support of this contention, 	CSU cites California State
University 	(1982) 	7 PERB 14024, 	a nonprecedential hearing officer
decision. 	However, 	this contention is also misplaced.
In The Matter of Unit Determination for Employees of California
State University and Colleges 	Pursuant 	to Chapter 744 	of 	the
Statutes of 	1978 	(Higher Education Employer-Employee Relations
Act 	(1981) 	PERB Order No. 	JR-ll-H, 	the Board held that as a
class, 	department 	chairs were not supervisory and should be
included in the unit. 	In CSU, 	supra, 	the ALJ held that nine 	(9)
- -	of 	trie 	12-month department 	chairs out approximately 800
department 	chairs were supervisory employees. 	Despite CSU
assertion, 	the ALJ did not 	find that all 	12-month department
chairs are supervisory employees, 	nor is the decision
precedential beyond the nine affected employees. 	As such, 	CSU

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fails 	to provide any statutory or case 	law demonstrating CFA's
proposal 	is a nonmandatory subject of bargaining.
Allegation 3:
The 	University also contends 	CFA's proposal 	regarding job
security of 	temporary and tenure-track employees violates 	the
HEERA. 	CFA's proposal provides 	that CSU will not hire any first
time temporary 	faculty2 until 	the 	ratio 	of 	temporary 	faculty to
total, faculty is 38%. 	CSU contends this proposal violates
Government Code section 3562(r)(4) 	which states in relevant part:
The scope of representation shall not
include:
(4) 	Criteria and standards 	to be used for
appointment, promotion, evaluation, and
tenure of academic employees . 	. 	.
However, 	CSU fails 	to demonstrate what 	criteria or standards 	for
appointment CFA is attempting to bargain. 	CFA's proposal does
not 	set 	forth the qualifications 	for temporary faculty, 	nor does
the 	provision provide 	the standards 	to be employed by CSU in
appointing faculty members. 	Instead, 	the provision seems to
address CFA's job security concerns. 	CFA's proposal attempts to
limit: the number of new temporary employees, 	thereby increasing
job 	opportunities 	and work load for those employees who have
previously been employed as 	temporary faculty. 	As 	the Board
stated in Jefferson School District 	(1980) 	PERB Decision No. 	133,
the 	question of 	reemployment necessarily involves 	future
entitlement 	to wages and benefits and affects hours worked by
bargaining unit 	teachers who are re-employed, 	and therefore is
within the scope of representation. 	(See also, 	San Mateo City
School District 	(1984) 	PERB Decision No. 	383.) 	Moreover, 	the
privileges and rights afforded to tenure-track employees 	are much
greater than those afforded to temporary faculty, 	and CFA has a
vested interest 	in preserving 	tenure-track work and 	its benefits.
As such, 	this proposal does not violate the HEERA.
Allegation 4:
CFA's proposal 	in Article 12.17c requires that CSU's peer review
committee 	for probationary appointments give 	"preference" 	to
1 Temporary 	appointments 	are 	defined 	as 	appointments 	for 	a
fixed length of 	time. 	For the most part, 	unlike tenure-track
employees, 	temporary employees do not serve on departmental
committees, 	do not engage in student advising or admissions, 	do
nor 	serve on peer review panels 	for promotion or appointment, 	and
do not handle 	class 	scheduling.

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Appl 	Applicants who have had prior teaching experience at CSU. 	CSU
contends 	this proposal 	infringes 	on their right 	to make hiring
decisions 	and additionally sets 	"criteria and standards 	for
appointment." 	However, 	the University fails to provide any
support 	for this allegation.
CFA's 	proposal 	requires 	only that 	"preference" 	be given to 	those
employees who have already worked as 	faculty members 	for the
University. 	The proposal does not 	require CSU to select 	these
applicants, 	nor does the proposal require CSU to alter any of its
criteria or qualifications 	for appointment. 	The proposal merely
requires 	CSU to give preference 	in tenure-track positions 	to
those 	temporary employees who have served the University as
faculty members 	in the past. 	As 	the University fails 	to provide
any facts demonstrating this preference impinges 	on its 	statutory
rights, 	the allegation fails to state a prima facie case.
Allegation 5:
The 	University contends that CFA's proposal 	to create rehire
rights 	for temporary faculty members 	serving 12 	consecutive
semesters violates the HEERA. 	CFA's proposal provides that
temporary employees 	serving 12 	consecutive semesters 	in the same
department at 	the same campus, 	receiving 	"satisfactory or better"
evaluations, 	would automatically continue to be employed by the
University unless 	the University informed the 	faculty members by
June l. 	As noted in Allegation 3, 	above, 	CSU fails to
demonstrate 	this proposal 	infringes 	on the criteria or standards
the 	University uses 	in appointing faculty. 	Instead, 	the proposal
provides 	reemployment 	rights 	for temporary faculty members. 	As
such reemployment rights are within the scope of bargaining, 	the
allegation fails to state a prima facie case.
Allegation 6:
CFA proposes 	in Article 20 	that 	if faculty members who retire
during the life of 	the Agreement are replaced by the University,
they 	shall be replaced with tenure-track faculty positions. 	CSU
contends 	this proposal 	impinges on staffing levels and its 	right
to hire employees. 	However, 	analogous PERB case law has held
that 	this issue is within the scope of negotiation.
CFA's proposal 	regarding the 	replacement 	of 	tenure-track 	faculty
with other tenure-tracked employees 	relates directly to the
benefits conferred upon its bargaining unit employees. 	Facts
provided above 	demonstrate 	tenure-track employees participate on
departmental committees, 	serve as student advisors, 	and are
allowed input 	into the hiring of other employees as well 	as 	the
department's budget. 	And perhaps most 	importantly, 	tenure-track
faculty are ensured of 	future employment. 	Such benefits are not

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conferred upon temporary faculty members. 	By proposing such a
provision, 	CFA is merely attempting to retain and ensure tenure-
track positions and the benefits 	those positions are conferred.
As 	those benefits are within the scope of representation, 	CFA's
proposal does not demonstrate bad faith bargaining. 	(Gov. 	Code
3581.3.)
For these reasons allegations 1 through 6, 	as presently written,
do not state a prima facie case. 	If there are any factual
inaccuracies 	in this 	letter or additional 	facts which would
correct the deficiencies explained above, 	please amend the
charge. 	The amended charge should be prepared on a standard PERB
unfair practice charge 	form, 	clearly labeled First Amended
Charge. 	contain all the facts and allegations you wish to make,
and be 	signed under penalty of perjury by the 	charging party.
The amended charge must have the case number written on the top
right hand corner of 	the charge form. 	The amended charge must be
served on the respondent's 	representative and the original proof
of 	service must be filed with PERB. 	If 	I do not receive an
amended charge or withdrawal from you before November 16, 	1998. 	I
shall dismiss the above-described allegation from your charge.
If you have any questions, 	please call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney