Los Angeles Community College District (Watts) (PERB A291E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 0. 	WATTS,
Complainant,
and
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Employer.
Case No. 	LA-PN-145
Administrative 	Appeal
PERB Order No. 	Ad-291
December 9, 	1998
Appearances: 	Howard 0. 	Watts, 	on his own behalf; 	Lisa Lerner
Miller, 	Associate General 	Counsel, 	for Los Angeles Community
College District.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(Board) 	on appeal by Howard 0. 	Watts
(Watts) 	of a Board agent's dismissal 	(attached). 	The Board agent
determined 	that 	the 	Los Angeles 	Community College District
(District) 	did not violate sections 3547(a), 	(b) 	or 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by presenting an
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Section 3547 states, 	in pertinent part:
(a) 	All 	initial proposals 	of exclusive
representatives 	and of public 	school
employers, 	which relate to matters within the
scope 	of 	representation, 	shall 	be presented
at 	a public meeting 	of 	the public 	school
employer 	and thereafter 	shall 	be 	public
records.
(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
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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.
initial 	proposal 	regarding 	changes 	to 	the 	school 	calendar 	in
interest-based bargaining 	terminology on February 	11, 	1998.
After a 	review of 	the 	entire 	record, 	including 	the Board
agent's dismissal, 	Watts' 	appeal and the District's response, 	the
Board hereby affirms 	the 	Board agent's 	dismissal 	and adopts 	it 	as
the 	decision of 	the Board 	itself.
ORDER
The public notice complaint 	in Case No. 	LA-PN-145 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 0. 	WATTS,
Complainant,
v.
LOS 	ANGELES 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-PN-145
DISMISSAL 	OF 	PUBLIC
NOTICE 	COMPLAINT
September 3, 	1998
This 	decision 	finds 	that 	the 	Los 	Angeles 	Community 	College
District 	(LACCD) 	did not violate section 3547(a), 	(b), 	and 	(c) 	of
the 	Educational 	Employment 	Relations Act 	(EERA)1 by 	the
presentation 	of 	a 	calendar 	initial 	proposal 	using 	interest-based
bargaining.
Thehe 	EERA is 	codified at 	Government 	Code 	section 	3540 	et
seq. 	Section 3547 provides, 	in pertinent part:
(a) 	All 	initial proposals 	of 	exclusive 	representatives
and of public 	school 	employers, 	which relate 	to matters
within 	the 	scope 	of 	representation, 	shall 	be presented
at 	a public meeting 	of 	the public 	school 	employer and
thereafter shall 	be public 	records.
(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.
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BACKGROUND
On March 16, 	1998,2 Howard 0. 	Watts 	(Watts or Complainant)
filed a public notice complaint against 	the LACCD with the Public
Employment Relations Board 	(PERB).3 The complaint alleges that
the LACCD's February 11 school 	calendar proposal was not
sufficiently developed for the public to comprehend and was not
subsequently clarified at 	the 	February 25 	Board of 	Education
public meeting.
In its response to the complaint, 	LACCD explains that it is
engaged in interest-based bargaining with the faculty unit, 	a
method which tends 	to produce initial proposals which are more
general and less adversarial 	than traditional positional
bargaining. 	Nevertheless, 	the LACCD asserts that its proposal
contained enough specificity to adequately inform the public 	so
that it could respond to the proposal.
Investigation of the complaint, 	including a review of the
tape recordings of the relevant Board of Trustee meetings,
revealed the 	following.
FACTS
The LACCD's 	initial proposal was presented at a public Board
of Trustee meeting on February 11 as an informative item. 	The
proposal, in its entirety, states:
Article 10. Calendar
2A11 dates herein refer to calendar year 1998 unless
otherwise noted.
3The complaint was in abeyance from May 12 	to July 1.
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As 	referenced in Article 	10.C of the
Agreement, 	the District has an interest in
bargaining to authorize one or more alternate
year-round calendars, which, 	if agreed to,
would be available to colleges wishing to
move part or all of their instruction to the
alternate calendar(s). 	Included in the
alternate 	calendar bargaining would be
related issues including, 	but not limited to,
calendar, 	assignment and workload, 	alternate
basis for retirement credit, 	determination of
participation by faculty, 	hourly assignments
and seniority, 	rates of pay, 	holidays and
vacation days, class size, evaluation,
leaves, 	transfer and reassignment, 	insofar as
such issues relate to the proposed alternate
calendar(s).4
As Watts explains in his complaint, 	the proposal is the
culmination of 	approximately three years 	of study and discussion
by District staff, 	trustees and students, 	which included at least
one public meeting where Watts 	spoke in opposition to the
alternate year-round calendar. 	During this same time, 	a student
group conducted a survey and produced a video regarding this
issue. 	Finally, 	progress reports from a committee charged with
developing an information base on the issue have been presented
at Board of Trustee public meetings.
The LACCD's February 25 meeting allowed the public an
opportunity to speak regarding the proposal. 	Watts spoke at the
4Article 	10.C of 	the Agreement between the LACCD and the
American Federation of Teachers College Guild Local 	1521,
CFT/AFT, AFL/CIO, 	effective September 30, 	1996 through June 30,
1 9 9 9 , 	s t a t e s :
This Agreement does not preclude any of the
nine 	colleges or other District programs 	from
implementing any aspect of a year round
calendar by joint agreement of the AFT and
the District.
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meeting and asked a litany of very specific questions.5 No oral
clarification of the proposal was given by LACCD at the meeting.6
ISSUE
Was LACCD's initial proposal 	for a year-round calendar
sufficiently developed to meet 	the requirements 	of Government
Code section 3547?
DISCUSSION
The purpose of implementing the public notice provisions of
Government Code section 3547 is stated in subsection 	(e):
. 	. 	. 	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.
PERB has 	interpreted this section to mean that the initial
proposals presented to the public should be sufficiently
developed to allow the public to comprehend them. 	(Palo Alto
Unified School District 	(1981) 	PERB Decision No. 	184. 	(Palo
Alto).) 	An initial proposal which simply states 	the subject
matter to be negotiated, 	such as 	"wages", 	does not adequately
inform the public of the issues 	to be bargained by the employer
5Watts' testimony often contains scolding, threatening and
derogatory comments aimed at the Board of Trustees and District
personnel, along with a recitation of public notice cases where
he has prevailed in another jurisdiction. 	It is unclear how
these comments relate to the issue at hand.
6Watts states 	in his 	complaint that there would be three
year-round calendars. 	It is not clear from what source this
number was derived.
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and the exclusive representative. 	(Ibid.) 	However, 	PERB has
also found that 	the actual dollars and cents cost of a proposal
need not be presented to the public. 	(Los Angeles Community
College District 	(1989) 	PERB Decision No. 	740.)
If an initial proposal is not specific as written, 	PERB has
held that an oral 	clarification at a public meeting may be
sufficient 	to cure any defects or insufficiencies 	in the
proposal. 	(Ocean View Teachers Association 	(Busch) 	(1992) 	PERB
Decision No. 	943; Ocean View School District 	(Busch) 	(1992) 	PERB
Decision No. 	938.)
PERB has 	found that the use of a new or different bargaining
technique such as 	the interest-based, 	collaborative bargaining
approach does not 	relieve the parties 	of their statutory burden
to provide public notice. 	(Ocean View Teachers Association
(Busch), supra, PERB Decision No. 	943.)7 The Board has also
recognized that while 	the 	interest-based bargaining approach may
hold many advantages for the parties, 	it may also raise some
public notice concerns.
It is clear, 	however, 	that the interest-based
approach to bargaining tends 	to produce
initial proposals which do not include a
great deal of specific details. 	To the
extent EERA's public notice requirement 	is
interpreted to mandate that 	initial proposals
include detailed information 	concerning
7Watts 	insists during his public testimony that 	interest
based bargaining is not sanctioned by section 3547 and that
traditional bargaining is what is required. 	In fact, 	section
3547 does not dictate bargaining methods to the parties. 	In
addition, 	Board decisions clearly recognize it as a legitimate
process, 	albeit one where the participants must be sensitive to
PERB's public notice provisions.
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subjects 	to be discussed during negotiations,
the 	interest-based approach makes 	that 	task
more difficult. 	The Board takes notice of
the potential 	inconsistency between EERA's
public notice requirement and the tendency
for initial proposals under the interest-
based bargaining approach to be general 	in
nature. 	(Los Angeles Unified School District
(1992) 	PERB Decision No. 	964.)
Therefore, 	the Board urged parties using this approach to strive
to insure that they do not fail 	to fully inform the public of the
issues to be negotiated in collective bargaining.
LACCD's 	initial proposal 	in this case reflects 	its attempt
to follow a collaborative model 	of bargaining that 	stresses
interests rather than positions. 	The calendar proposal's focus
is to negotiate additional 	calendar options for the college
system and specifically recognizes 	that a myriad of 	related items
may flow from the parties' 	discussions.
At the February 25 meeting, 	Watts asked for specific
information regarding the exact number of year-round calendars
contemplated, 	the campuses affected, 	what parts of instruction
would be affected, 	whether assignments will be made by an
administrator or chosen by a faculty member, 	the number of hours
per week and how they will be determined, 	which faculty members
will be affected, 	how seniority will be calculated, 	the rates of
pay for participating faculty, 	the number of holiday and vacation
days, 	the number of students in a class, 	who will administer
evaluations, 	what types of leaves will be provided to
participants, 	what the transfer and reassignment policies will
be, etc.
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These questions 	indicate an understanding of the proposal
and its possible ramifications. 	Answers to his inquiries will be
formulated by the parties as they engage in negotiations, 	not at
this preliminary stage of the process. 	Finally, 	this issue has
been the 	subject of discussion for three years during which the
public has been kept 	informed and Watts himself has 	conveyed his
opposition. 	Thus, 	it is difficult to imagine that Watts did not
comprehend the District's 	February 11 	school calendar proposal 	in
order to express himself as allowed by section 3547.
CONCLUSION AND ORDER
Based on the facts, 	law and precedent discussed above, 	it is
determined that 	the Los Angeles Community College District has
not violated Government Code section 3547 	(a), 	(b), 	or (c) 	since
its 	calendar proposal adequately informs the public of the issue
which will be the subject of negotiations. 	Therefore, 	this
public notice complaint is DISMISSED without leave to amend.
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
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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,
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 San Francisco
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
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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) .
Dated: 	September 3, 	1998 	By:
Anita I. Martinez
Regional Director
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