PERB Decision No. 0477H•California State University (Watts) (PERB 0477H)
California State University (Watts) (PERB 0477H)
PERB Decision No. 0477HCalperb31 de dez. de 1984
Texto completo
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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HOWARD 0. WATTS.
Charging Party.
v.
CALIFORNIA STATE UNIVERSITY.
Respondent.
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_____________________ )
Case No. LA-PN-51-H
PERB Decision No. 477-H
December 31, 1984
Appearance: Howard o. Watts on his own behalf.
Before Hesse. Chairperson; Jaeger and Burt. Members.
DECISION
BURT. Member: This case is before the Public Employment
Relations Board (Board) on an appeal by Howard o. Watts
(Complainant) of the Board agent's dismissal. attached hereto.
of his public notice complaint alleging that the California
State University violated section 3595(a) and (b) of the Higher
Education Employer-Employee Relations Act (Government Code
section 3560 et seq.).
We have reviewed the Board agent's dismissal in light of
the Complainant's appeal and the entire record in this matter
and adopt that dismissal as the Decision of the Board itself.
ORDER
The public notice complaint in Case No. LA-PN-51-H is
DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson Hesse and Member Jaeger joined in this Decision.STATE OF CALIFORNIA GEORGE 0EUKMEJIAN, Go-mmor PUBLIC EMPLOYMENT RELATIONS BOARD Headqucrters Office 1031 18th Strieet Sacramento, California 95814 (916) 322-3088 February 3, 1984 Howard Watts 1021 N. Mariposa Avenue# 3 1/2 Los Angeles, CA 90029 Thomas A. Lambre, Assistant Vice Chancellor Employee Relations California State University System 400 Golden Shore Long Beach, CA 90802 Re: Dismissal of Public Notice Complaint H. Watts v. California State University System, Complaint No. LA-PN-51-H Dear Parties: I indicated to Mr. Watts in my warning letter dated November 25, 1983, (attached) that the above-reference.d complaint did not state a prima facie case and that unless he amended the complaint to state a prima facie case or withdraw it prior to December 15, 1983, it would be dismissed. After two extensions of time, Mr. Watts filed his first amended complaint on January 5, 1984, including additional allegations~ Also, my investigation has uncovered more information. After carefully reviewing the amended complaint, the new information and the material previously presented, the above-referenced complaint as amended still fails to state a prima facie case. Therefore, the amended complaint is being dismissed without leave to amend based on the facts and reasons, stated below. .. I. The amended complaint provided no additional facts, but rather provides only additional,legal arguments. The amended complaint alleges that the California State University System (CSUS) committed numerous violations of Government Code sections 3595(a) and (b), among others. More specifically, the amended complaint argues that: (1) The CSUS Board of Trustees illegally delegated its control to the "subterfuge" Committee on Collective Bargaining: (2) CSUS procedures do not "allow for the representative to avoid the presentation at a public meeting of the 'subterfuge' Committee on Collective Bargaining or the Board of Trustees:" (3) CSUS procedures are in violation
Howard Watts Thomas A. Lambre February 3, 1984 Page 2 of Government Code .section 3595 (a) ; ( 4) Government Code section 3562(h) "is not tied to 3595(a-e) at all;" (5) Applicability of Government Code section 11122 does not allow Mr. Lambre to Atak[e] action by himself" in deciding not to hold the UAPD proposals in abeyance; (6) "Whether the csus held a public response" meeting on the various proposals in Fresno, California on March 2, 1983; (7) Government Code section 3595(b) was violated because "there was no opportunity for the public to express itself at the meeting on March 2, 1983;" (8) UAPD proposals should not have been presented on March 2, 1983, "because Mr. Watts did not receive his letter denying the proposals be put into abeyance until March 3, 1983;• and (9) The applicable laws create a •conflicting and complex situation". My investigation revealed the following: the initial response meeting for the exclusive representatives and higher education employer was held in Long Beach, California on February 23, 1983, for UAPD - Unit 1, Physicians; California State Employees' Association for Unit 2, Health Care Support; Unit 5, Operations Support; Unit 7, Clerical/Administrative Support; Unit 9, Technical Support Services; and State Employee Trades Council for Unit 6, Skilled Crafts. In the original public notice complaint filed by Mr. Watts in LA-PN-52-H, a complaint based on the same meetings as in LA-PN-51-H,,the complaint alleged that 50 copies of the UAPD proposal were available to the public at the public meeting held February 23, 1983. . Mr. Watts requested at the February 23 meeting that the OAPD proposal be held in abeyance. In a letter received by Mr. Watts on March 3, 1983, his abeyance request was denied by Mr. Lambre, Assistant Vice Chancellor for Employee Relations at csus. On March 2, 1983, in Fresno, California, a public meeting was held for the purpose of presenting the bargaining proposals from the Statewide University Police Association for Unit 8, Public Safety and for the public to respond to the proposals by State Employee Trades Council, the California State Employees' Association, and UAPD~ For the following reasons, none of the allegations in the amended complaint state a prima facie case.
Howard Watts Thomas A. Lambre February 3, 1984 Page 3 Allegations 1. & 4. Government Code sections 3562(h) and 3595(a-e) are all part of the Higher Education Employer-Employee Relations Act (HEERA), a comprehensive statuary plan to "provide orderly and clearly defined procedures for meeting and conferring and the resolution of impasses, and to define and prohibit certain practices which are inimical to the public interest." (Government Code section 3561). HEERA became operative on July 1, 1979. The CSUS Board of Trustees or its designated committee may conduct meetings for the CSUS Board of Trustees, the Higher Education Employer, as provided in Government Code section 3562 (h) : "Employer" or "higher education employer" means the ••• trustees in the case of the California State University and Colleges, including any person acting as an agent of an employer. Section 89035 of the Education Code provides: Wherever in this code a power is vested in the Trustees, the Trustees by majority vote may adopt a rule delegating such power to any officer, employee or committee as the Trustees may designate. In connection with the adoption of HEERA, the CSUS Board of Trustees established a special Committee on Collective Bargaining.l Since then, the Committee on Collective lPursuant to the express legislative grant of the authority to delegate, contained in Education Code section 89035, the Board of Trustees established its Committee on Collective Bargaining. Subsection S(h) of Article VI of that Board's Rules of Procedure provides as follows: (h). Committee on Collective Bargaining. The Committee on Collective Bargaining shall have delegated authority to act for the Board of Trustees in order to comply with the requirements of the Higher Education
Howard Watts Thomas A. Lambre February 3, 1984 Page 4 Bargaining has been maintained as a regular standing committee of the Board of Trustees. The statutory scheme outlined above appears plainly to permit CSUC to delegate to its Committee on collective bargaining authority to act in the realm of collective bargaining including sunshining of collective bargaining proposals. Accordingly, allegations 1 and 4 are dismissed. Allegation 2. HEERA does not require the exclusi,,e representative to make in-person presentations of the collective bargaining proposals. (See November 25, 1983 letter, sections II.l.) Furthermore, the csus Board of Trustees in Title 5, Article 16.1 - Public Notice of Initial Proposals of Exclusive Representatives and California State University, procedure section 43725(b), provide the following: (b) At the first meeting called for a particular representation unit, the exclusive representative shall present its proposal in writing and shall have ten (10) copies of such proposal for members of the Board of Trustees or its designated committee present, twenty (20) additional copies for distribution to the main library at each campus and in the Office of the Chancellor, and a sufficient quantity, but - not fewer than twenty (20), for interested members of the public in attendance at the public meeting. At the time of such presentation, a representative of the exclusive representative may address the Board of Trustees or its designated committee for the purpose of clarifying or Employer-Employee Relations Act (HEERA} and implement the collective bargaining policy of the Board of Trustees. The delegation to the Committee on Collective Bargaining includes, but is not limited to, authority to negotiate memoranda of understanding pursuant to the policies of the Board of Trustees. The Committee on Collective Bargaining shall submit periodic progress reports to the Board of Trustees on matters pertaining to collective bargaining and actions which it has taken. (Emphasis added.)
Heward Watts Thomas A. Lambre February 3, 1984 Page 5 amplifying upon any portion of its proposal. Thereafter, the Board of Trustees or its designated committee shall set a time for a second public hearing. Thus, the exclusive representative may choose not to address the Board of Trustees or its designated committee if the representative deems the written proposal sufficient. The procedure does not make it mandatory that the exclusive representative appear in person before the Board of Trustees or its designated committee when offering the proposal. Based on the foregoing, allegation number 2 is dismissed. Allegation 3. The csos Board of Trustees in Title 5, Article 16.1 - Public Notice of Initial Proposals of Exclusive Representatives and California State University, procedure section 43725(a) provides the following: (a) An initial meeting to present the proposal of an exclusive representative for a particular u~it shall be scheduled within a reasonable time by the Board of Trustees or its designated committee. This procedure, Mr. Watts asserts, is in violation of HEERA section 3595(a). Section 3595(a) states: (a) All initial proposals of exclusive representatives and of higher education employers, which relate to matters within the scope of representation, shall be presented at a public meeting of the higher education employer and thereafter shall be public records. It is clear that procedure section 43725(a) and Government Code section 3595(a) are compatible. Both sections require presentation of initial proposals of the exclusive representatives at a public meeting of the higher education employer. See number 1 for discussion on higher education employer. The Webster's New Collegiate Dictionary definition of the verb npresentn is nto bring before the public ••• to offer to
Howard Watts Thomas A. Lambre February 3, 1984 Page 6 view." Nothing in the definition or the relevant sections or statutes requires that the offering be made in person in order to constitute a "presentation". The public notice provisions of HEERA were enacted to ensure that the public has an opportunity to be informed about the substance of initial collective bargaining proposals submitted by HEERA employer and employee organizations. The documents submitted by UAPD were the best evidence of the proposal UAPD wished to make. UAPD's decision not to orally reiterate the contents of its documents cannot reasonably be considered violative of either CSUS's regulation or the applicable Government Code section. Allegations 5. & 8. PERB does not have jurisdiction to correct all possible unfairness directed towards members of the public. Instead, PERB is authorized to enforce and protect certain rights granted to the public under HEERA. Specifically, Government Code section 3595 provides: (a) All initial proposals of exclusive representatives and of higher education employers, which relate to matters within the scope of representation, shall be presented at a public meeting of the higher education employer and thereafter shall be public records. · (b) Meeting and conferring shall not commence on an initial proposal until a reasonable time has elapsed after the submission of the proposal to enable the public to become informed and the public bas the opportunity to express itself regarding the proposal at a meeting of the higher education employer. (c) After the public has had the opportunity to express itself, the higher education employer shall, at a meeting which is open to the public, adopt a proposal, including any changes to its initial proposal which the higher education employer deems appropriate based on the public's comments.
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 7
(d) New_ subjects of meeting and conferring
arising after the presentation of initial
proposals shall be made public within 24
hours. If a vote is taken on such subject
by the higher education employer, the vote
thereon by each member voting shall also be
made public within 24 hours.
{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 met and
conferred upon and have full opportunity to
express their views on the issues to the
higher education employer, and to know of
the positions o,f the higher education
employer •.
Mr .. Watts attempts to rely upon the 11 Open Meeting Act"
(Government Code sections 11120-11131) to demohstrate that Mr.
Lambre's "action" in denying Watts' request to hold the UAPD
proposal--in abeyance was a violation of Government Code section
11122. The lawfulness under the "Open Meeting Act", of CSUS's
delegation to Mr. Lambre is not a question for PERB to decide
nor is j_t necessary to make that determination; PERB ls not
authdrized to adjudicate violations of Government Code section
11122. In any ~vent, the "Open Meeting Act" does not appear to
have been intended to address the question of whether a
committee, rather than its agent, must decide to hold a matter
in abeyance.
Mr. Watts appears to argue that Mr. Lambre's denial of his
request to hold the UAPD proposal in abeyance also violated
HEERA section 3595. But Mr. Watts knew, or should have known,
of the scheduled March 2, 1983, public response meeting. By
his own admission, he attended the February 23 initial proposal
meeting and the notes of that meeting indicate that a public
response meeting was scheduled for March 2, 1983.
Additionally, the public in general (including Mr. Watts) were
informed that if they could not attend the March 2 meeting in
Fresno, they could make their comments in writing. This
afforded ample opportunity for public response to the proposal.Howard Watts Thomas A. Lambre February 3, 1904 Page 8 Allegations 6. & 7. Mr. Watts questions "whether the CSUS held a public response to the initial proposals presented at the February 23, 1983," meeting. However, the answer is readily available from a review of his original complaint. Exhibit 4 (Agenda for March 2, 1983, meeting in Fresno, California, which includes a provision for public comment on bargaining proposals submitted February 23, 1983) and Exhibit 5 (Notes of the March 2, 1983, public meeting held in Fresno, California) attached to the original complaint show that a public response meeting was held on March 2, 1983, in Fresno. His allegation that the March 2 meeting may not have been held is wholly speculative and, therefore, cannot sustain a complaint. Mr. Watts asserts that if the meeting were held in Fresno, "it wasn't a reasonable time or place to hold such a meeting." The meeting was called to order at 10:00 a.m. Mr. Watts fails to assert any facts to show that this is not a reasonable time. Additionally, CSUS has campuses throughout California, including Fresno, and it appears equitable to conduct meetings at a variety of locations. Nothing in HEERA requires the public response meeting to be conducted on the same campus where the initial employer response meeting is held. HEERA section 3595(b) states: (b) Meeting and conferring shall not commence on an initial 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 higher education employer. Mr. Watts contends that this statute was violated because "there was no opportunity for the public to express itself at the meeting on March 2, 1983." This allegation is not· supported by the facts. As shown above, Mr. Watts was aware of the March?. meeting in Fresno. One of the main reasons for the meeting was to receive public comment on the initial proposals. Mr. Lambre stated on February 23, 1983, "that the public meeting to hear community's comments on the exclusive representative's proposals will be held on March 2, 1983, California State University, Fresno, Joyal Administration Building, Room 203, at 10:00 a.m." He added that the Board of
Howard Watts Thomas A. Lambre February 3, 1984 Page 9 Trustees has stated that the public's comments are urged and could also be made in writing. (Notes of Public Meeting - February 23, 1983). Consequently, even if Mr. Watts could not attend the March 2, 1983, public response meeting, he had the opportunity to express his comments on the initial proposals in writing. Hence, these allegations, also, lack merit. Allegation 9. In interpreting the public notice provisions of HEERA, effort must be made to "harmonize" those provisions with other potentially conflicting Education Code provisions. See San Mateo City Schools v. PERB (1983) 33 Cal.3d 850, 864-865, adopting PERB s approach in Healdsburg Union High School District (6/19/80) PERB Decision No. 132. Nothing 1n the amended complaint, however, suggests that harmonization principles would be disserved by dismissal of the complaint. Pursuant to Public Employment Relations Board regulation section 32925 (California Administrative Code, title 8, part III), you may appeal the refusal to issue a complaint (dismissal) to the Board itself. Right to Appeal You may obtain a review of this dismissal of the complaint by filing an appeal to the Board itself within twenty (20) calendar days after service of this dismissal (section 32925). To be timely filed, the appeal must be actually received by the Board itself before the close of business (5:00 p.m.} on February 23, 1984, or sent by telegraph or certified United States mail postmarked not later than February 23, 1984(section 32135). The Board's address is: Public Employment Relations Board 1031 18th Street Sacramento, CA 95814 If you file a timely appeal of this dismissal any other party may file with the Board itself a statement in opposition within twenty (20) calendar days following the date of service of the appeal. 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 the document filed with the Board itself (see section 32140 for the required contents and a
Howard Watts Thomas A. Lambre February 3, 1984 Page 10 sample form). The document 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 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 (section 32132). Final Date If no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired. Very truly yours, DENNIS M. SULLIVAN General Counsel By ~~!Carl Bessent Staff Attorney CB:mlb
s r "re Ci- C !.. LIFOHNI,\ GEORGE OEUKMEJIAN, Gov~rnor PUBLIC Ef;iPLOYME:NT Rl:l..ATIONS BO.f.\~D .San frci1r:isco Regional Office 177 Po~t Street, 9th Floor San Frondsco, California 94 l 08 (415) 557-1350 November 25, 1983 Mr. Howard O. Watts 1021 North Mariposa Avenue, Apt. 3 1/2 Los Angeles, CA 90029 Re: LA-PN-51-H Dear Mr. Watts: The purpose of this letter is to: l) analyze your complaint (LA-PN-51-H); 2) explain why, as presently written, the complaint does not state a prima facie case: and 3) to provide you an opportunity to amen~ your charge. Your above referenced Public Notice Complaint alleges that the California State University System (CSUS), higher education employer, has committed four violations including the violation of Government Code section 3595(a). I. T'ne complaint alleges the following: (1) CSUS violated Government Code section 359S(a) by failing to require an in-person presentation of initial proposals by the Union of American Physicians and Dentists (UAPD), Unit 1, at the February 23, 1983 public meeting; (2) there was no public response meeting in Southern California: (3) proper notice was not made for the March 2, 1983 meeting because the meeting was held by the "Committee on Collective Bargaining" instead of the Board of Trustees: (4) meeting of the Committee on Collective Bargaining is not a meeting of the higher education employer because it is composed of staff rather than the full Board of Trustees. My investigation revealed that the initial response meeting for the exclusive representatives and employer was held in Long Beach, California on February 23, 1983 for UAPD - Unit 1, Physicians: California State Employees' Association for Unit 2, Health Care Support; Unit 5 Operations Support; Unit 7 Clerical/Administrative Support; and Unit 9, Technical Support Services: and State Employees Trades Council for Unit 6, Skilled Crafts. Your Complaint, LA-PN-52-H, shows that .SO copies of the UAPD proposal were available to the public at the public meeting held F'ebruary 23, 1983. Neither Complaint,
Howard o. Watts November 25, 1983 Page 2 L...l\-P~-51-H nor LA-PN-52-H, alleges that the Ul\.PD proposal was not sufficient for the public to know the issues oeing proposed. (See Palo Alto Unified School District (12/2/81) PERB Decision No. 184.) II. For the following reasons, the complaint, as presently framed, does not state a prima facie case. 1. Section 3595(a) states that: (a) All initial proposals of exclusive representatives and of higher education employers, which relate to matters within the scope of the representation, shall be presented at a public meeting of the higher education employer and thereafter shall be public records. The Webster's New Collegiate Dictionary definition of the verb 11 present 11 is "to bring before the public ••• to offer to view." Nothing in the definition or the statute requires that the offering be made in person to constitute a "presentation" and logic dictates otherwise. The public notice provisions of HEERA were enacted to ensure that the public has an opportunity to be informed about the substance of collective bargaining propoals submitted by HEERA employers and employee organizations. The documents submitted by UAPD were the best evidence of the pronasal UAPD wished to make. UAPD's failure to orally reiterate the contents of its documents cannot reasonably be considered violative of the statute. 2. As you admit in your complaint, CSUS did schedule and have a public response meeting on March 2, 1983 in Fresno, California. Nothing in HEERA requires the public response meeting to be conducted on the same campus where the initial employer response meeting is conducted. Further, CSUS has campuses throughout California and it appears equitable to conduct meetings in a variety of locations. The complainant cites PERB Decision No. 158 as support. That decision, however, involves the District's responsibility to provide proper public notice and to present all initial proposals; it is irrelevant to the instant charge, which concerns where the public response meeting is held. 3. & 4. The Board of Trustees or its designated committee may
Howard o. Watts
November 25, 1983
Page 3
conduct t.he meetings for the highe-r education employer as
provided in Government Code section 3562(h).
"Employer" or "higher education employer"
means the ••• trustees in the case of the
California State University and Colleges,
including any person acting as an agent of
an employer.
Section 89035 of the Education Code provides:
Wherever in this code a power is vested in
the Trustees, the Trustees by majority vote
may adopt a rule delegating such power to
any officer, employee or committee as the
Trustees may designate.
In connection with the adoption of HEERA, the CSUS Board of
Trustees established a special committee on collective
bargaining. 1 Since that time, the Committee on Collective
Bargaining has been maint'ained as a regular standing committee
1 Pursuant to the express legislative grant of the authority
to delegate, contained in Education Code section 89035, the
Board of Trustees established its Committee on Collective
Bargaining. Subsection S(h) of Article VI of that Board's
Rules of Procedure provides as follows:
(h). Committee on Collective Bargaining.
The Committee on Col-lective Bargaining shall
have delegated authority to act for the Board of
Trustees in order to comply with the requirements of
the Hi her Education Employer-Employee Relations Act
HEERA and implement the collective bargaining policy
of the Board of Trustees. The delegation to the
Committee on Collective Bargaining includes~ but is
not limited to, authority to negotiate memoranda of
understanding pursuant to the policies of the Board of
Trustees. The Committee on Collective Bargaining
shall submit periodic progress reports to the Board of
Trustees on matters pertaining to collective
bargaining and actions which it has taken. {Emphasis
added). .Howard o. Watts
November 25, 1983
Page 4
of the Board of Trustees. In light of Education Code
section 89035, the Board of Trustees' delegation of authority
does not appear to violate the public notice provision of
HEERA.2 Thus, proper public notice was provided for the
March 2, 1983 public response meeting held by the Board of
Trustees' designated committee.
For the aforementioned reasons, your complaint, as presently
written, does not state a prima facie case. If you feel that
there are any factual inaccuracies in this letter or any
additional facts which would correct the deficiencies explained
above, please amend the public notice complaint accordingly.
The amended complaint should be prepared on a standard PERB
public notice complaint form clearly labeled First Amended
Complaint, contain all the facts and allegations you wish to
make, and be signed under penalty of perjury by the
complainant.
If I do not receive an amended complaint or withdrawal from you
within 20 days of service-of this letter, your complaint will
be dismissed. If you have any questions on how to proceed,
please call me at (916) 322-1320.
Sincerely yours,
Carl J. Bessent
Graduate Legal Assistant
CJB:mlb
2 In interpreting the public notice provisions of HEERA,
efforts should be made to "harmonize" those provisions with
other potentially conflicting Education Code provisions. See
San Mateo City Schools vs. PERB (1983) 33 Cal. 3d 850, 864-865,
adopting PERB's approach inttealdsburg Union High School
District {6/19/80) PERB Decision No. 132.1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HOWARD O. WATTS,
Charging Party, Case No. LA-PN-51-H
Vv. PERB Decision No. 477-H
CALIFORNIA STATE UNIVERSITY, December 31, 1984
Respondent.
Nea Se Nae Ne Set Neel See Noe Sel? eet
Appearance: Howard O. Watts on his own behalf.
Before Hesse, Chairperson; Jaeger and Burt, Members.
DECISION
BURT, Member: This case is before the Public Employment
Relations Board (Board) on an appeal by Howard O. Watts
(Complainant) of the Board agent's dismissal, attached hereto,
of his public notice complaint alleging that the California
State University violated section 3595(a) and (b) of the Higher
Education Employer-Employee Relations Act (Government Code
section 3560 et seq.).
We have reviewed the Board agent's dismissal in light of
the Complainant's appeal and the entire record in this matter
and adopt that dismissal as the Decision of the Board itself.
ORDER
The public notice complaint in Case No. LA-PN-51-H is
DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson Hesse and Member Jaeger joined in this Decision.
1
STATE OF CALIFORNIA GEORGE 0EUKMEJIAN, Go-mmor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headqucrters Office
1031 18th Strieet
Sacramento, California 95814
(916) 322-3088
February 3, 1984
Howard Watts
1021 N. Mariposa Avenue# 3 1/2
Los Angeles, CA 90029
Thomas A. Lambre, Assistant Vice Chancellor
Employee Relations
California State University System
400 Golden Shore
Long Beach, CA 90802
Re: Dismissal of Public Notice Complaint H. Watts v. California
State University System, Complaint No. LA-PN-51-H
Dear Parties:
I indicated to Mr. Watts in my warning letter dated
November 25, 1983, (attached) that the above-reference.d
complaint did not state a prima facie case and that unless he
amended the complaint to state a prima facie case or withdraw
it prior to December 15, 1983, it would be dismissed. After
two extensions of time, Mr. Watts filed his first amended
complaint on January 5, 1984, including additional
allegations~ Also, my investigation has uncovered more
information. After carefully reviewing the amended complaint,
the new information and the material previously presented, the
above-referenced complaint as amended still fails to state a
prima facie case. Therefore, the amended complaint is being
dismissed without leave to amend based on the facts and reasons,
stated below.
..
I.
The amended complaint provided no additional facts, but rather
provides only additional,legal arguments. The amended
complaint alleges that the California State University System
(CSUS) committed numerous violations of Government Code
sections 3595(a) and (b), among others. More specifically, the
amended complaint argues that: (1) The CSUS Board of Trustees
illegally delegated its control to the "subterfuge" Committee
on Collective Bargaining: (2) CSUS procedures do not "allow for
the representative to avoid the presentation at a public
meeting of the 'subterfuge' Committee on Collective Bargaining
or the Board of Trustees:" (3) CSUS procedures are in violation
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 2
of Government Code .section 3595 (a) ; ( 4) Government Code section
3562(h) "is not tied to 3595(a-e) at all;" (5) Applicability of
Government Code section 11122 does not allow Mr. Lambre to
Atak[e] action by himself" in deciding not to hold the UAPD
proposals in abeyance; (6) "Whether the csus held a public
response" meeting on the various proposals in Fresno,
California on March 2, 1983; (7) Government Code section
3595(b) was violated because "there was no opportunity for the
public to express itself at the meeting on March 2, 1983;"
(8) UAPD proposals should not have been presented on
March 2, 1983, "because Mr. Watts did not receive his letter
denying the proposals be put into abeyance until
March 3, 1983;• and (9) The applicable laws create a
•conflicting and complex situation".
My investigation revealed the following: the initial response
meeting for the exclusive representatives and higher education
employer was held in Long Beach, California on
February 23, 1983, for UAPD - Unit 1, Physicians; California
State Employees' Association for Unit 2, Health Care Support;
Unit 5, Operations Support; Unit 7, Clerical/Administrative
Support; Unit 9, Technical Support Services; and State Employee
Trades Council for Unit 6, Skilled Crafts. In the original
public notice complaint filed by Mr. Watts in LA-PN-52-H, a
complaint based on the same meetings as in LA-PN-51-H,,the
complaint alleged that 50 copies of the UAPD proposal were
available to the public at the public meeting held
February 23, 1983.
.
Mr. Watts requested at the February 23 meeting that the OAPD
proposal be held in abeyance. In a letter received by Mr.
Watts on March 3, 1983, his abeyance request was denied by Mr.
Lambre, Assistant Vice Chancellor for Employee Relations at
csus.
On March 2, 1983, in Fresno, California, a public meeting was
held for the purpose of presenting the bargaining proposals
from the Statewide University Police Association for Unit 8,
Public Safety and for the public to respond to the proposals by
State Employee Trades Council, the California State Employees'
Association, and UAPD~
For the following reasons, none of the allegations in the
amended complaint state a prima facie case.
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 3
Allegations 1. & 4. Government Code sections 3562(h) and
3595(a-e) are all part of the Higher Education
Employer-Employee Relations Act (HEERA), a comprehensive
statuary plan to "provide orderly and clearly defined
procedures for meeting and conferring and the resolution of
impasses, and to define and prohibit certain practices which
are inimical to the public interest." (Government Code section
3561). HEERA became operative on July 1, 1979.
The CSUS Board of Trustees or its designated committee may
conduct meetings for the CSUS Board of Trustees, the Higher
Education Employer, as provided in Government Code section
3562 (h) :
"Employer" or "higher education employer"
means the ••• trustees in the case of the
California State University and Colleges,
including any person acting as an agent of
an employer.
Section 89035 of the Education Code provides:
Wherever in this code a power is vested in
the Trustees, the Trustees by majority vote
may adopt a rule delegating such power to
any officer, employee or committee as the
Trustees may designate.
In connection with the adoption of HEERA, the CSUS Board of
Trustees established a special Committee on Collective
Bargaining.l Since then, the Committee on Collective
lPursuant to the express legislative grant of the
authority to delegate, contained in Education Code section
89035, the Board of Trustees established its Committee on
Collective Bargaining. Subsection S(h) of Article VI of that
Board's Rules of Procedure provides as follows:
(h). Committee on Collective Bargaining.
The Committee on Collective Bargaining shall
have delegated authority to act for the
Board of Trustees in order to comply with
the requirements of the Higher Education
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 4
Bargaining has been maintained as a regular standing committee
of the Board of Trustees. The statutory scheme outlined above
appears plainly to permit CSUC to delegate to its Committee on
collective bargaining authority to act in the realm of
collective bargaining including sunshining of collective
bargaining proposals. Accordingly, allegations 1 and 4 are
dismissed.
Allegation 2. HEERA does not require the exclusi,,e
representative to make in-person presentations of the
collective bargaining proposals. (See November 25, 1983
letter, sections II.l.) Furthermore, the csus Board of
Trustees in Title 5, Article 16.1 - Public Notice of Initial
Proposals of Exclusive Representatives and California State
University, procedure section 43725(b), provide the following:
(b) At the first meeting called for a
particular representation unit, the
exclusive representative shall present its
proposal in writing and shall have ten (10)
copies of such proposal for members of the
Board of Trustees or its designated
committee present, twenty (20) additional
copies for distribution to the main library
at each campus and in the Office of the
Chancellor, and a sufficient quantity, but
- not fewer than twenty (20), for interested
members of the public in attendance at the
public meeting. At the time of such
presentation, a representative of the
exclusive representative may address the
Board of Trustees or its designated
committee for the purpose of clarifying or
Employer-Employee Relations Act (HEERA} and
implement the collective bargaining policy of
the Board of Trustees. The delegation to the
Committee on Collective Bargaining includes, but
is not limited to, authority to negotiate
memoranda of understanding pursuant to the
policies of the Board of Trustees. The
Committee on Collective Bargaining shall submit
periodic progress reports to the Board of
Trustees on matters pertaining to collective
bargaining and actions which it has taken.
(Emphasis added.)
Heward Watts
Thomas A. Lambre
February 3, 1984
Page 5
amplifying upon any portion of its
proposal. Thereafter, the Board of Trustees
or its designated committee shall set a time
for a second public hearing.
Thus, the exclusive representative may choose not to address
the Board of Trustees or its designated committee if the
representative deems the written proposal sufficient. The
procedure does not make it mandatory that the exclusive
representative appear in person before the Board of Trustees or
its designated committee when offering the proposal. Based on
the foregoing, allegation number 2 is dismissed.
Allegation 3. The csos Board of Trustees in Title 5, Article
16.1 - Public Notice of Initial Proposals of Exclusive
Representatives and California State University, procedure
section 43725(a) provides the following:
(a) An initial meeting to present the
proposal of an exclusive representative for
a particular u~it shall be scheduled within
a reasonable time by the Board of Trustees
or its designated committee.
This procedure, Mr. Watts asserts, is in violation of HEERA
section 3595(a).
Section 3595(a) states:
(a) All initial proposals of exclusive
representatives and of higher education
employers, which relate to matters within
the scope of representation, shall be
presented at a public meeting of the higher
education employer and thereafter shall be
public records.
It is clear that procedure section 43725(a) and Government Code
section 3595(a) are compatible. Both sections require
presentation of initial proposals of the exclusive
representatives at a public meeting of the higher education
employer. See number 1 for discussion on higher education
employer.
The Webster's New Collegiate Dictionary definition of the verb
npresentn is nto bring before the public ••• to offer to
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 6
view." Nothing in the definition or the relevant sections or
statutes requires that the offering be made in person in order
to constitute a "presentation". The public notice provisions
of HEERA were enacted to ensure that the public has an
opportunity to be informed about the substance of initial
collective bargaining proposals submitted by HEERA employer and
employee organizations. The documents submitted by UAPD were
the best evidence of the proposal UAPD wished to make. UAPD's
decision not to orally reiterate the contents of its documents
cannot reasonably be considered violative of either CSUS's
regulation or the applicable Government Code section.
Allegations 5. & 8. PERB does not have jurisdiction to correct
all possible unfairness directed towards members of the
public. Instead, PERB is authorized to enforce and protect
certain rights granted to the public under HEERA.
Specifically, Government Code section 3595 provides:
(a) All initial proposals of exclusive
representatives and of higher education
employers, which relate to matters within
the scope of representation, shall be
presented at a public meeting of the higher
education employer and thereafter shall be
public records. ·
(b) Meeting and conferring shall not
commence on an initial proposal until a
reasonable time has elapsed after the
submission of the proposal to enable the
public to become informed and the public bas
the opportunity to express itself regarding
the proposal at a meeting of the higher
education employer.
(c) After the public has had the
opportunity to express itself, the higher
education employer shall, at a meeting which
is open to the public, adopt a proposal,
including any changes to its initial
proposal which the higher education employer
deems appropriate based on the public's
comments.
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 7
(d) New_ subjects of meeting and conferring
arising after the presentation of initial
proposals shall be made public within 24
hours. If a vote is taken on such subject
by the higher education employer, the vote
thereon by each member voting shall also be
made public within 24 hours.
{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 met and
conferred upon and have full opportunity to
express their views on the issues to the
higher education employer, and to know of
the positions o,f the higher education
employer •.
Mr .. Watts attempts to rely upon the 11 Open Meeting Act"
(Government Code sections 11120-11131) to demohstrate that Mr.
Lambre's "action" in denying Watts' request to hold the UAPD
proposal--in abeyance was a violation of Government Code section
11122. The lawfulness under the "Open Meeting Act", of CSUS's
delegation to Mr. Lambre is not a question for PERB to decide
nor is j_t necessary to make that determination; PERB ls not
authdrized to adjudicate violations of Government Code section
11122. In any ~vent, the "Open Meeting Act" does not appear to
have been intended to address the question of whether a
committee, rather than its agent, must decide to hold a matter
in abeyance.
Mr. Watts appears to argue that Mr. Lambre's denial of his
request to hold the UAPD proposal in abeyance also violated
HEERA section 3595. But Mr. Watts knew, or should have known,
of the scheduled March 2, 1983, public response meeting. By
his own admission, he attended the February 23 initial proposal
meeting and the notes of that meeting indicate that a public
response meeting was scheduled for March 2, 1983.
Additionally, the public in general (including Mr. Watts) were
informed that if they could not attend the March 2 meeting in
Fresno, they could make their comments in writing. This
afforded ample opportunity for public response to the proposal.
Howard Watts
Thomas A. Lambre
February 3, 1904
Page 8
Allegations 6. & 7. Mr. Watts questions "whether the CSUS held
a public response to the initial proposals presented at the
February 23, 1983," meeting. However, the answer is readily
available from a review of his original complaint. Exhibit 4
(Agenda for March 2, 1983, meeting in Fresno, California, which
includes a provision for public comment on bargaining proposals
submitted February 23, 1983) and Exhibit 5 (Notes of the
March 2, 1983, public meeting held in Fresno, California)
attached to the original complaint show that a public response
meeting was held on March 2, 1983, in Fresno. His allegation
that the March 2 meeting may not have been held is wholly
speculative and, therefore, cannot sustain a complaint.
Mr. Watts asserts that if the meeting were held in Fresno, "it
wasn't a reasonable time or place to hold such a meeting." The
meeting was called to order at 10:00 a.m. Mr. Watts fails to
assert any facts to show that this is not a reasonable time.
Additionally, CSUS has campuses throughout California,
including Fresno, and it appears equitable to conduct meetings
at a variety of locations. Nothing in HEERA requires the
public response meeting to be conducted on the same campus
where the initial employer response meeting is held.
HEERA section 3595(b) states:
(b) Meeting and conferring shall not
commence on an initial 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 higher
education employer.
Mr. Watts contends that this statute was violated because
"there was no opportunity for the public to express itself at
the meeting on March 2, 1983." This allegation is not·
supported by the facts. As shown above, Mr. Watts was aware of
the March?. meeting in Fresno. One of the main reasons for the
meeting was to receive public comment on the initial
proposals. Mr. Lambre stated on February 23, 1983, "that the
public meeting to hear community's comments on the exclusive
representative's proposals will be held on March 2, 1983,
California State University, Fresno, Joyal Administration
Building, Room 203, at 10:00 a.m." He added that the Board of
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 9
Trustees has stated that the public's comments are urged and
could also be made in writing. (Notes of Public Meeting -
February 23, 1983). Consequently, even if Mr. Watts could not
attend the March 2, 1983, public response meeting, he had the
opportunity to express his comments on the initial proposals in
writing. Hence, these allegations, also, lack merit.
Allegation 9. In interpreting the public notice provisions of
HEERA, effort must be made to "harmonize" those provisions with
other potentially conflicting Education Code provisions. See
San Mateo City Schools v. PERB (1983) 33 Cal.3d 850, 864-865,
adopting PERB s approach in Healdsburg Union High School
District (6/19/80) PERB Decision No. 132. Nothing 1n the
amended complaint, however, suggests that harmonization
principles would be disserved by dismissal of the complaint.
Pursuant to Public Employment Relations Board regulation
section 32925 (California Administrative Code, title 8,
part III), you may appeal the refusal to issue a complaint
(dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the complaint by
filing an appeal to the Board itself within twenty (20)
calendar days after service of this dismissal (section 32925).
To be timely filed, the appeal must be actually received by the
Board itself before the close of business (5:00 p.m.} on
February 23, 1984, or sent by telegraph or certified United
States mail postmarked not later than February 23, 1984(section
32135). The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of this dismissal any other party
may file with the Board itself a statement in opposition within
twenty (20) calendar days following the date of service of the
appeal.
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 the document filed with the Board
itself (see section 32140 for the required contents and a
Howard Watts
Thomas A. Lambre
February 3, 1984
Page 10
sample form). The document 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 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 (section 32132).
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By ~~!Carl Bessent
Staff Attorney
CB:mlb
s r "re Ci- C !.. LIFOHNI,\ GEORGE OEUKMEJIAN, Gov~rnor
PUBLIC Ef;iPLOYME:NT Rl:l..ATIONS BO.f.\~D
.San frci1r:isco Regional Office
177 Po~t Street, 9th Floor
San Frondsco, California 94 l 08
(415) 557-1350
November 25, 1983
Mr. Howard O. Watts
1021 North Mariposa Avenue, Apt. 3 1/2
Los Angeles, CA 90029
Re: LA-PN-51-H
Dear Mr. Watts:
The purpose of this letter is to: l) analyze your complaint
(LA-PN-51-H); 2) explain why, as presently written, the
complaint does not state a prima facie case: and 3) to provide
you an opportunity to amen~ your charge.
Your above referenced Public Notice Complaint alleges that the
California State University System (CSUS), higher education
employer, has committed four violations including the violation
of Government Code section 3595(a).
I.
T'ne complaint alleges the following: (1) CSUS violated
Government Code section 359S(a) by failing to require an
in-person presentation of initial proposals by the Union of
American Physicians and Dentists (UAPD), Unit 1, at the
February 23, 1983 public meeting; (2) there was no public
response meeting in Southern California: (3) proper notice was
not made for the March 2, 1983 meeting because the meeting was
held by the "Committee on Collective Bargaining" instead of the
Board of Trustees: (4) meeting of the Committee on Collective
Bargaining is not a meeting of the higher education employer
because it is composed of staff rather than the full Board of
Trustees.
My investigation revealed that the initial response meeting for
the exclusive representatives and employer was held in Long
Beach, California on February 23, 1983 for UAPD - Unit 1,
Physicians: California State Employees' Association for Unit 2,
Health Care Support; Unit 5 Operations Support; Unit 7
Clerical/Administrative Support; and Unit 9, Technical Support
Services: and State Employees Trades Council for Unit 6,
Skilled Crafts. Your Complaint, LA-PN-52-H, shows that .SO
copies of the UAPD proposal were available to the public at the
public meeting held F'ebruary 23, 1983. Neither Complaint,
Howard
o.
Watts
November
25,
1983
Page
2
L...l\-P~-51-H
nor
LA-PN-52-H,
alleges
that
the
Ul\.PD
proposal
was
not
sufficient
for the
public to
know
the
issues
oeing
proposed.
(See
Palo Alto Unified
School
District
(12/2/81)
PERB
Decision
No.
184.)
II.
For
the following
reasons, the
complaint, as
presently
framed,
does
not
state
a
prima
facie
case.
1.
Section
3595(a)
states
that:
(a) All
initial
proposals
of exclusive
representatives
and
of higher education
employers,
which
relate
to
matters within
the
scope
of
the
representation,
shall
be
presented
at
a
public
meeting
of the higher
education
employer and
thereafter shall
be
public records.
The
Webster's
New
Collegiate
Dictionary
definition
of the verb
11
present
11
is
"to bring before
the
public
•••
to
offer
to
view." Nothing
in
the
definition
or the
statute
requires that
the offering
be
made
in
person
to constitute
a
"presentation"
and
logic
dictates
otherwise.
The
public notice provisions of
HEERA
were
enacted
to
ensure
that
the
public
has an
opportunity
to
be informed about
the
substance of
collective
bargaining
propoals submitted
by
HEERA
employers and employee
organizations.
The
documents
submitted by
UAPD
were
the
best
evidence
of
the pronasal
UAPD
wished
to
make.
UAPD's
failure
to orally reiterate
the contents of
its
documents
cannot
reasonably be considered
violative of the
statute.
2.
As
you
admit
in
your complaint,
CSUS
did
schedule
and have
a
public response meeting on
March
2,
1983
in
Fresno,
California.
Nothing
in
HEERA
requires the public response
meeting
to
be conducted
on
the
same campus where
the
initial
employer
response meeting
is
conducted.
Further,
CSUS
has
campuses
throughout
California
and
it
appears equitable to
conduct meetings
in
a
variety of locations.
The
complainant
cites
PERB
Decision
No. 158
as support. That
decision,
however,
involves the
District's responsibility to provide
proper public notice
and
to present
all initial
proposals;
it
is irrelevant to the instant
charge, which concerns where
the
public response meeting
is held.
3.
&
4.
The Board
of Trustees or
its
designated committee
may
Howard o. Watts
November 25, 1983
Page 3
conduct t.he meetings for the highe-r education employer as
provided in Government Code section 3562(h).
"Employer" or "higher education employer"
means the ••• trustees in the case of the
California State University and Colleges,
including any person acting as an agent of
an employer.
Section 89035 of the Education Code provides:
Wherever in this code a power is vested in
the Trustees, the Trustees by majority vote
may adopt a rule delegating such power to
any officer, employee or committee as the
Trustees may designate.
In connection with the adoption of HEERA, the CSUS Board of
Trustees established a special committee on collective
bargaining. 1 Since that time, the Committee on Collective
Bargaining has been maint'ained as a regular standing committee
1 Pursuant to the express legislative grant of the authority
to delegate, contained in Education Code section 89035, the
Board of Trustees established its Committee on Collective
Bargaining. Subsection S(h) of Article VI of that Board's
Rules of Procedure provides as follows:
(h). Committee on Collective Bargaining.
The Committee on Col-lective Bargaining shall
have delegated authority to act for the Board of
Trustees in order to comply with the requirements of
the Hi her Education Employer-Employee Relations Act
HEERA and implement the collective bargaining policy
of the Board of Trustees. The delegation to the
Committee on Collective Bargaining includes~ but is
not limited to, authority to negotiate memoranda of
understanding pursuant to the policies of the Board of
Trustees. The Committee on Collective Bargaining
shall submit periodic progress reports to the Board of
Trustees on matters pertaining to collective
bargaining and actions which it has taken. {Emphasis
added). .
Howard o. Watts
November 25, 1983
Page 4
of the Board of Trustees. In light of Education Code
section 89035, the Board of Trustees' delegation of authority
does not appear to violate the public notice provision of
HEERA.2 Thus, proper public notice was provided for the
March 2, 1983 public response meeting held by the Board of
Trustees' designated committee.
For the aforementioned reasons, your complaint, as presently
written, does not state a prima facie case. If you feel that
there are any factual inaccuracies in this letter or any
additional facts which would correct the deficiencies explained
above, please amend the public notice complaint accordingly.
The amended complaint should be prepared on a standard PERB
public notice complaint form clearly labeled First Amended
Complaint, contain all the facts and allegations you wish to
make, and be signed under penalty of perjury by the
complainant.
If I do not receive an amended complaint or withdrawal from you
within 20 days of service-of this letter, your complaint will
be dismissed. If you have any questions on how to proceed,
please call me at (916) 322-1320.
Sincerely yours,
Carl J. Bessent
Graduate Legal Assistant
CJB:mlb
2 In interpreting the public notice provisions of HEERA,
efforts should be made to "harmonize" those provisions with
other potentially conflicting Education Code provisions. See
San Mateo City Schools vs. PERB (1983) 33 Cal. 3d 850, 864-865,
adopting PERB's approach inttealdsburg Union High School
District {6/19/80) PERB Decision No. 132.Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.