Capistrano Unified School District (PERB 0294E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CAPISTRANO 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
CAPISTRANO 	UNIFIED 	EDUCATION
ASSOCIATION,
Respondent.
Case No. 	LA-CO-132
PERB Decision No. 	294
March 16, 	1983
Appearances; 	M. 	Mari Merchat, Attorney 	(Walters, Bukey 	&
Shelburne) 	for 	Capistrano 	Unified 	School District;
A. 	Eugene Huguenin, 	Jr., 	Attorney 	(California Teachers
Association) 	for 	Capistrano 	Unified 	Education Association.
Before Gluck, Chairperson; Morgenstern and Burt, Members.
DECISION
GLUCK, 	Chairperson: 	The Capistrano Unified School
District 	(District) 	excepts 	to 	the 	hearing officer's
proposed 	decision 	dismissing 	its 	amended 	charge1 that 	the
Capistrano Unified Education Association 	(Association), 	per 	se,
violated 	section 	3548.32 and 	subsections 	3543.6(c) 	and
1The 	charge 	initially 	stated:
The 	premature 	and 	unauthorized 	release 	by
the Association 	of 	the 	final 	report's
contents 	constitutes 	a 	failure 	to 	bargain 	in
good 	faith 	and 	a 	failure 	to 	utilize 	the
impasse procedures 	in good 	faith.
2Section 	3548.3 	provides 	in 	relevant part:
(a) 	If 	the dispute 	is 	not 	settled within
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(d)3 	of 	the 	Educational Employment 	Relations Act 	(EERA)4
and 	section 	36095 of 	the 	Public Employment 	Relations 	Board's
(PERB) 	rules 	and 	regulations5 	by publicly 	releasing 	a
30 	days 	after 	the 	appointment of 	the panel,
or, 	upon agreement by both parties, 	within a
longer 	period, 	the 	panel 	shall make 	findings
of 	fact 	and 	recommend 	terms 	of 	settlement,
which 	recommendations 	shall 	be 	advisory
only. 	Any 	findings of 	fact 	and 	recommended
terms 	of 	settlement 	shall 	be 	submitted 	in
writing 	to 	the 	parties privately 	before 	they
are 	made 	public. 	The 	public 	school employer
shall make 	such 	findings 	and 	recommendations
public within 	10 	days 	after 	their 	receipt.
3subsections 3543.6(c) 	and 	(d) 	state 	in part:
It 	shall be 	unlawful 	for 	an employee
organization 	to:
(c) 	Refuse 	or 	fail 	to meet and 	negotiate 	in
good 	faith 	with 	a 	public 	school 	employer 	of
any 	of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing 	with Section 3548).
4The 	EERA is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	noted.
5PERB's 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	Prior 	to
September 	20, 	1982, 	the 	rules governing 	impasse 	procedures
under 	the EERA were located 	at 	sections 	36000 	- 	36095. 	Former
rule 	36095 of PERB's 	regulations 	states:
The 	public 	school 	employer 	shall make 	public
the 	entire, 	verbatim 	final report 	signed 	by
the 	chairperson of 	the 	factfinding 	panel
within 	10 	days of 	its 	receipt by 	the
parties. 	Such 	publication 	shall be effected
by 	posting 	a notice 	that 	the 	factfinder
report 	has 	been 	issued 	and 	is 	available 	to
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factfinders1 report 	in less 	than 	its 	entirety, 	prior 	to 	receipt
and 	publication 	by 	the 	District.
The 	hearing 	officer 	only 	considered 	that 	part 	of 	the 	charge
alleging violations of 	subsections 	3543.6(c) 	and 	(d) 	and 	found
that 	the Association's 	conduct was 	not 	so 	outrageous as 	to
impede 	impasse procedures 	and 	negotiations. 	Accordingly, 	he
found 	that 	no 	violation 	had 	been 	committed.
FACTS
On November 	6, 	1979, 	impasse 	was 	declared 	in negotiations
between 	the District 	and 	the Association. 	Mediation 	failed 	to
resolve 	the 	impasse, 	and on or 	about January 17, 	1980, 	the
matter 	was 	certified 	for 	factfinding.
The 	factfinding 	panel 	convened 	and 	began 	its 	inquiry on 	or
about April 	16. 	Kenneth Hall 	and Tom Brown, 	respectively,
represented 	the 	District 	and 	the Association 	on 	the 	panel with
Joe Henderson, 	serving 	as 	the 	neutral 	chair.
On or 	about May 13, 	1980, 	Henderson's office mailed both
the Association's 	and 	the District's 	copies of 	the 	factfinding
panel's 	final 	report 	to 	the 	District's offices 	because 	he 	did
not 	have 	the 	address for 	the Association. 	However, 	after
the public. 	The 	notice 	shall 	be posted 	in
the 	locations 	normally 	used 	for 	posting
public 	notices 	regarding 	regular 	meetings of
the 	employer 	and 	shall 	indicate 	the 	times
and 	places 	where 	the 	public may 	inspect 	a
copy of 	the 	report. 	The employer 	shall
insure 	that 	a 	reasonable 	number 	of 	copies
shall be 	available 	to 	the 	public.
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discovering 	clerical 	and 	arithmetic 	errors, 	the panel made 	a
request, 	which 	the District honored, 	that 	the copies be
returned 	unopened 	to 	the 	panel.
For 	negotiations, 	the Association 	engaged 	the 	services 	of
the 	South 	Orange 	County 	Uniserv 	Unit 	and, 	during 	factfinding,
Dan Saling, 	Executive Director 	of 	the 	Uniserv Unit, 	received
numerous 	inquiries 	from 	the 	press 	and 	from Association members
regarding 	the 	issuance 	of 	the 	report. 	Saling 	telephoned 	the
office of Tom Brown on or 	about May 15, 	1980, 	to ascertain
whether 	Brown 	had 	received 	a copy 	of 	the 	final 	report 	and 	was
informed 	that 	the 	report 	had 	been 	received 	by Brown 	on 	or 	about
that date.
On 	the morning 	of May 	16, 	1980, 	having 	still 	not 	received a
copy of 	the 	report, 	Saling 	asked Brown's 	secretary 	to 	read 	the
factfinding 	report 	to 	him over 	the 	telephone. 	Saling's
secretary 	took 	down 	the 	report 	verbatim 	as 	Brown's 	secretary
dictated. 	The dictation, 	however, 	did not 	include 	the
concurrence 	and dissent of 	the District's 	panel member 	which
was 	inadvertantly 	omitted 	by Henderson's 	secretary. 	Later 	that
same morning, 	Fred Swegles, 	a local 	reporter, 	called Saling
about 	the 	report. 	Saling 	read 	his 	secretary's 	transcription of
the 	report 	to Swegles 	and 	informed him 	that 	he did 	not 	have 	a
copy of 	the 	final 	report 	at 	that 	time.
Swegles 	shortly 	thereafter 	phoned 	District 	Superintendent
Jerome 	Thornsley 	and 	related 	his 	conversation 	with 	Saling 	about
the 	report. 	Thornsley 	expressed 	his 	opinion 	that 	Saling's
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release of information from the report was 	improper and
informed Swegles 	that 	the District had not yet 	received a copy
of 	the 	final report.
Later, at approximately 11:45 a.m. on May 16, the District
did receive a copy of 	the report. 	However, 	this copy also did
not include 	the concurrence and dissent. 	The omitted portions
were mailed 	separately after 	the District 	notified 	the
factfinding 	chairman's 	office of 	the 	error.
Saling 	received a copy of 	the 	report about 1:00 or
2:00 p.m. on May 16, but the record does not establish whether
he and Mr. Brown received complete copies or that Saling knew
the report dictated to him by Brown's secretary should have
included 	the District's 	separate opinion.
Two local newspapers published articles on the afternoon of
May 16, 1980, which summarized portions of 	the factfinding
report. 	The article written by Swegles included a summary of
his conversations with Saling and Thornsley.
On the morning of May 19, 1980, the District formally
released 	the factfinding 	report 	to 	the public, 	providing copies
at 	its office and 	at 	schools 	throughout the District. 	Copies
were also distributed to the press at 	the District's Board of
Trustees' 	meeting 	later 	that same day.
Negotiations between the District and the Association
continued after 	the final report was issued. 	On or about
June 2, 	1980 the parties signed a final agreement and
negotiations were concluded.
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DISCUSSION
The 	D i s t r i c t 	contends 	that 	the Association 	violated EERA by
releasing 	an 	incomplete 	version of 	the 	factfinders1 report
prior 	to 	the 	D i s t r i c t ' s 	receipt 	of 	it 	and 	that 	this 	action
d i r e c t l y 	contravened 	the 	expressed 	directives 	of 	section 	3548.3
and 	constituted 	a per 	se 	violation of 	the Act 	because 	it 	"had 	a
clear 	potential 	to 	frustrate 	negotiations."
It 	is 	undisputed 	that 	the 	Association's 	agent 	publicly
released 	an 	incomplete 	version 	(without 	the 	D i s t r i c t 	p a n e l i s t ' s
concurrence 	and 	dissent) 	of 	a 	factfinders1 report 	prior 	to 	the
p a r t i e s ' 	receipt of 	the 	full 	report. 	This 	contravened 	the
s t a t u t o r y 	requirements 	of 	section 	3548.3 	which 	s t a t e s :
Any 	findings of 	fact 	and 	recommended 	terms
of 	settlement 	[of 	the 	fact 	finding 	panel]
shall 	be 	submitted 	in 	writing 	to 	the 	p a r t i e s
privately 	before 	they 	are 	made 	public.
(Emphasis 	added.)
This 	section mandates 	the 	parties 	to 	maintain 	the 	report 	in
confidence 	until 	they 	have 	both 	received 	their 	respective
copies. 	By 	breaching 	this 	provision, 	the Association 	violated
subsections 	3543.6(c) 	and 	(d).6
Further, 	we 	have 	construed 	section 	3548.3 	to 	require 	that
"[a]ny 	release must 	be 	of 	the 	final 	report, 	unaltered 	and 	in 	i t s
6 We dismiss 	the 	D i s t r i c t ' s 	exception 	that 	section 	3548.3
was 	also 	violated. 	This 	section 	establishes 	only 	the 	duties 	of
the 	p a r t i e s ; 	violations 	are 	covered 	by 	sections 	3543.5 	and
3543.6.
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entirety." 	Las Virgenes 	Unified School District 	(6/12/79) 	PERB
Order 	No. 	IR-8. 	The Association's 	failure 	to comply with 	this
holding 	independently violated 	subsections 	3543.6(c) 	and 	(d).
The 	District's 	contention 	that 	the Association's 	conduct
violated 	EERA because 	the 	District 	has 	sole 	authority 	to
publish 	the 	factfinders' 	report 	is 	without merit. 	The 	District
relies 	on language 	from Las Virgenes, 	supra, 	which 	requires
"confidentiality 	pending 	official publication 	of 	the
factfinders1 report. 	. . . " 	It 	argues 	that 	"official
publication" 	refers 	to 	that part 	of 	section 	3548.3 	which
requires 	that 	the 	public 	school employer 	publicly 	release 	the
document 	and maintains 	that, 	consequently, 	the Association 	is
barred 	from 	releasing 	it. 	This 	section, 	while obligating 	the
District 	to 	release 	the 	report 	in a prescribed manner, 	does 	not
grant 	it exclusive 	authority 	to 	publish 	the 	document 	or
prohibit 	the 	exclusive 	representative 	from doing 	so. 	By
"official publication" 	in Las Virgenes, 	supra, 	we were
referring 	to 	the 	panel's 	issuance 	of 	the 	report 	to 	the
negotiating 	parties.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of law, 	and 	the
entire 	record 	in 	this 	case 	and, 	pursuant 	to Government Code
subsection 	3541.5(c), 	the Public Employment Relations Board
hereby 	ORDERS 	that 	the 	Capistrano 	Unified 	Education Association
shall:
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CEASE 	AND DESIST 	from violating 	subsections 	3543.6(c) 	and
(d) 	by 	refusing 	to 	negotiate 	and 	participate 	in 	impasse
procedures 	in 	good 	faith 	by 	prematurely 	releasing 	incomplete
versions 	of 	a 	factfinders1 report 	prior 	to 	its 	receipt 	by 	the
negotiating 	parties.
The 	Board 	further 	ORDERS 	that 	the 	Capistrano 	Unified
Education 	Association 	shall 	take 	the 	following 	AFFIRMATIVE
ACTIONS 	designed 	to 	effectuate 	the 	policies 	of 	the 	Act:
(1) 	Within 	thirty 	(30) 	workdays of 	service of 	this
decision, 	post 	at 	all 	school 	sites 	and 	all 	other 	work
locations, 	upon 	those 	bulletin 	boards 	where 	the 	Capistrano
Unified 	Education 	Association's 	notices 	are 	customarily 	placed,
copies 	of 	the 	attached Notice 	of 	Employees 	(Appendix A ) . 	Such
posting 	shall 	be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive 	workdays.
(2) 	At 	the 	end 	of 	the 	posting 	period, 	notify 	the
Los 	Angeles 	regional director 	of 	the 	Public Employment
Relations 	Board, 	in writing, 	of 	the 	steps 	taken 	by 	the
Capistrano 	Unified 	Education 	Association 	to 	comply 	with 	this
Order.
Members 	Morgenstern 	and Burt 	joined 	in 	this 	Decision.
8

APPENDIX 	A
NOTICE 	TO EMPLOYEES
POSTED 	BY 	NOTICE OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	LA-CO-132,
Capistrano 	Unified 	School District 	v. 	Capistrano 	Unified
Education Association 	in 	which 	all 	parties 	had 	an 	opportunity
to participate, 	it 	has been found 	that 	the Capistrano Unified
Education Association 	violated 	the 	Educational 	Employment
Relations Act, 	subsections 	3543.6(c) 	and 	(d) 	by prematurely
releasing 	an 	incomplete 	version of 	a 	factfinders 1 report 	in
contravention of 	section 	3548.3. 	As 	a 	result 	we 	have 	been
ordered 	to 	post 	this 	Notice 	and 	abide 	by 	the 	following:
We 	will:
A. 	CEASE AND 	DESIST FROM:
Refusing 	to 	negotiate 	and 	participate 	in 	statutory
impasse 	procedures 	in good 	faith 	by 	prematurely 	releasing 	an
incomplete 	version of 	a 	factfinders' 	report prior 	to 	its
receipt 	by 	the 	negotiating 	parties.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTION 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
Copies 	of 	this Notice are 	to 	be posted at 	all work
locations 	where 	notices 	to 	employees 	are 	customarily 	placed 	and
will 	remain 	there 	for 	thirty 	(30) 	consecutive 	workdays.
CAPISTRANO 	UNIFIED 	EDUCATION
ASSOCIATION
Dated: 	By:
Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST REMAINED POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND MUST 	NOT
BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL,