California State University, (United Professors of California) (PERB 0719H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED PROFESSORS 	OF CALIFORNIA,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY,
Respondent.
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) 	Case No. 	LA-CE-213-H
PERB 	Decision No. 	719-H
January 	19, 	1989
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Appearance: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg 	for 	United Professors 	of 	California.
Before Porter, 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or Board) 	on an appeal 	by the 	United
Professors 	of California 	(UPC) 	from the 	Board agent's 	dismissal
of 	its 	unfair practice 	charge 	against 	the 	California 	State
University 	(CSU or Employer). 	UPC charged that CSU violated the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA)1 by
failing 	to make 	public 	a 	factfinding report which arose 	out 	of
impasse 	proceedings 	between CSU 	and 	the 	California 	Faculty
Association 	(CFA), 	the exclusive representative of the 	faculty at
CSU. 	FACTUAL 	SUMMARY
UPC's 	interest 	in 	the 	bargaining relationship between 	CSU
and 	CFA arises 	out 	of 	a 	representation 	election between CFA 	and
1HEERA is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to the
Government Code.
__ )

UPC 	in 	1982. 	CFA prevailed in a runoff election by a 	small
margin. 	In March of 	1983, 	CFA was 	certified by PERB as 	exclusive
representative 	of 	the 	faculty at CSU.
During 	1986, 	CSU and CFA began negotiating a new memorandum
of understanding to take effect July 	1, 	1986. 	The parties
reached impasse 	December 	22, 	1986. 	A factfinding hearing was
held in March 	1987. 	During the impasse proceedings, 	the parties
continued private 	negotiations. 	A draft 	factfinding report 	and
recommendation was 	informally 	circulated 	to the parties. 	Shortly
thereafter, 	prior to the 	formal 	conclusion of the 	factfinding
process, 	the parties reached a tentative agreement. 	The
factfinding chair wrote CSU and CFA on May 8, 	1987, 	to 	confirm
that 	an 	agreement 	had been reached without 	the 	necessity 	of 	the
factfinding panel 	issuing a 	formal 	report. 	PERB was 	notified of
the 	outcome 	of the 	impasse proceedings.
In the agreement executed by the parties, 	an April 	25, 	1987
factfinding report is referenced twice, 	once 	in a 	section on a
faculty workload 	study 	(to be 	conducted 	in 	accordance with 	the
recommendations of the 	factfinding panel 	in that report), 	and
also in a 	supplemental 	agreement, 	referred to as 	a 	"side" 	letter
(in which CSU 	agreed to 	implement 	the 	factfinding panel's
recommendation regarding claims of discrimination), 	but not made
part 	of 	the 	collective 	bargaining agreement.
On May 	18, 	1987, 	UPC requested that CSU make 	the 	factfinding
report public. 	CSU did not do so. 	UPC, 	on August 21, 	1987,
filed 	an unfair practice 	charge with 	PERB, 	alleging violations 	of
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HEERA sections 3564; 	3571, 	subdivisions 	(a) 	and 	(e); 	3595; 	and a
violation of PERB Regulation 32800, 	subdivisions 	(b) 	and 	(c).2
The charge reads, 	in pertinent part, 	as follows:
The 	charging party 	is 	informed 	and believes
that Mr. 	Tamoush[3
] 	issued a report
containing 	findings 	of 	fact 	and recommended
terms of 	settlement. 	More than 	10 days have
now elapsed 	since 	the 	issuance 	of 	the 	fact-
finding report, 	yet the employer has never
made 	the 	report public 	nor notified the
public 	of 	the 	availability of 	the report. 	On
or about May 	18, 	1987, 	the charging party
asked that the report be made public 	in order
that 	it may 	inform 	its 	members 	of 	the
findings 	and recommendations. 	The 	employer
has 	ignored that request. 	Government Code
section 	3595 	allows 	PERB to 	adopt regulations
to 	implement 	the public's right 	to know about
issues 	which 	are being met 	and 	conferred
upon. 	Pursuant to that authority PERB
adopted 	regulations 	including 	section 	32800
(b) 	and 	(c) 	requiring public disclosure of
the 	fact-finding report.
DISCUSSION
The 	Board agent dismissed this 	charge 	on a number 	of
grounds. 	Primarily, 	she 	found that the 	UPC had no 	standing to
bring a 	section 3571, 	subdivision 	(e)4 charge under the Board's
analysis 	in Hanford Unified High 	School 	District 	(1978) 	PERB
Decision No. 	58. 	In Hanford, 	the Board held that a nonexclusive
representative 	had no 	standing 	to 	file 	an 	unfair practice 	charge
ZPERB Regulations 	are 	codified 	in the 	California
Administrative Code, 	title 8, 	section 31001 et seq.
Philip Tamoush was 	the 	neutral member of 	the 	factfinding
panel.
4Section 3571, 	subdivision 	(e) 	provides, 	in pertinent part,
that 	it 	is 	unlawful 	for an employer to 	"[r]efuse 	to participate
in 	good 	faith 	in the 	impasse procedure."
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concerning the 	implementation of 	a 	change 	in the 	school 	calendar
without meeting and 	conferring. 	The 	Board relied on 	a 	section of
the 	Educational 	Employment Relations Act 	(EERA) 	which provides
that 	nonexclusive 	representatives 	have 	certain rights 	but 	that
those 	rights 	are 	terminated when 	the 	exclusive 	representative 	is
certified. 	(Ibid. 	at p. 	6; 	see sec. 	3543.1, 	subd, 	(a).)
The 	Board agent concluded 	that, 	since 	CFA was 	the 	exclusive
representative, 	CFA had the exclusive right to challenge, 	under
section 3571, 	subdivision 	(e), 	the Employer's refusal to publish
the 	factfinding report.
UPC 	contends 	that 	since 	Hanford was 	decided under EERA, 	and
HEERA does 	not have 	an analog to 	section 	3543.1, 	the 	Board
agent's 	analysis 	should fail. 	Thus, 	UPC would have us read into
HEERA broader 	rights 	for 	nonexclusive 	representatives 	than 	the
statute provides. 	Quite the 	contrary is 	true. 	The Court of
Appeal 	has 	held 	that nonexclusive 	representatives 	under 	HEERA
have no rights 	as 	an organization. 	(Regents 	of the University of
California v. 	PERB 	(1985) 	168 Cal.App.3d 937, 	945 	(prior to the
certification of an exclusive representative, 	"[t]he 	employee has
a right to be represented 	[by a nonexclusive representative], 	but
the 	organization does not have 	an 	independent right 	to
represent." 	(Emphasis 	in original.)).) 	UPC's 	argument that 	it
has a right to assert a section 3571, 	subdivision 	(e) 	violation
must, therefore, fail.
4

At 	the 	heart 	of this 	case 	is 	the 	application 	of 	sections
35935 and 3595,6 as well as 	Regulation 32800.7 UPC argues 	that it
5Section 3593 provides, 	in pertinent part:
If 	the dispute 	is not 	settled within 	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 panel, 	subject to the rules and
regulations 	of the board, 	may make 	such
findings 	and recommendations 	public 	10 	days
thereafter. 	During this 	10-day period, 	the
parties 	are 	prohibited 	from making 	the
panel's 	findings 	and recommendations 	public.
(Emphasis 	added.)
6Section 3595 provides, 	in pertinent part:
(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.
(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.
7Regulation 32800 	states, 	in pertinent part:
(b) 	Under HEERA, 	the employer shall make
public 	the 	entire verbatim 	final 	report
signed by 	the 	chairperson 	of 	the 	factfinding
panel 	10 days 	after its receipt by the
parties.
(c) 	Publication 	shall be made by posting a
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has 	a right, 	as a member of the public, 	to the contents of the
factfinding report. 	Section 	3593 	provides 	in pertinent part 	that
the 	factfinding panel, 	10 days after disclosure to the parties,
"may make 	such 	findings 	and recommendations public."8 (Emphasis
added.) 	PERB Regulation 32800, 	subdivision 	(b) 	provides that:
"under HEERA, 	the employer 	shall make public 	the entire verbatim
final report. 	. 	." 	(emphasis added). 	UPC argues that section
3593 	and Regulation 	32800 mandate disclosure 	to the public. 	UPC
focuses 	on 	the mandatory 	language 	used 	in 	the 	regulation 	to 	argue
that CSU was 	required to disclose 	to 	the 	public 	the 	last 	in 	a
series of reports.
notice 	that the 	factfinder report has 	been
issued and is 	available to 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 made 	available 	to
the public.
Pursuant to Regulation 32800, 	subdivision 	(c) 	the public 	is
afforded access to the 	final 	factfinding report. 	UPC, 	as 	a
member of the public, 	is 	entitled to 	seek enforcement of this
regulation.
UPC 	errs 	in its analysis. 	Section 	3593 	only provides 	for
discretionary disclosure 	of 	"findings 	and recommendations." 	Even
though Regulation 32800, 	subdivision 	(b) 	appears to mandate
8See, 	supra, 	footnote 	5 for more complete text of 	section
3593.
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disclosure,9 it only requires 	that the 	"final" 	report be
disclosed to the public. 	UPC argues 	that the 	last in a 	series 	of
drafts 	is 	a 	final report, 	rather than that which the panel
considers 	"final." 	This 	argument 	ignores 	the 	language of 	the
regulation and the 	intent of 	impasse 	proceedings 	to provide 	an
alternative 	bargaining 	forum to 	encourage 	resolution. 	Section
3593 	expressly provides 	that 	the 	parties 	may view privately 	the
panel's 	findings 	of 	fact 	and recommended terms 	of 	settlement
before 	they are made public. 	Since 	UPC has 	failed to 	show that a
"final" 	report was ever issued, 	its argument that CSU improperly
failed to disclose 	the 	report must 	fail.10
The UPC's reliance 	on 	section 	3595 	is 	similarly misplaced.
The 	Board 	agent rejected 	reliance 	on this 	section due 	to 	UPC's
failure 	to 	provide 	facts 	to 	support 	the 	CSU's 	failure 	to make
bargaining proposals public. 	In its brief on appeal, 	UPC argues
that 	"new 	subjects 	of meeting 	and 	conferring 	arising 	after 	the
presentation of 	initial 	proposals 	must be made 	public." 	This
attempt to 	argue 	a potential 	violation of 	section 	3595,
The 	Board recently 	amended 	PERB 	Regulation 	32800,
subdivision (b), 	effective January 28, 	1989, as follows:
[u]nder 	HEERA, 	should 	the 	factfinding panel
decide 	to publish 	the 	report pursuant 	to
Government Code 	section 3593, 	such
publication 	shall 	be made 	by the 	employer 	in
the manner described in subsection 	(c) 	below.
10Since 	UPC has 	failed 	to meet 	its 	initial 	obligation 	to
show that a 	final report 	issued, 	we need not address 	the 	apparent
mandatory nature of Regulation 32800, 	subdivision 	(b).
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subdivision 	(d)11 relies 	on 	the mere 	possibility 	that 	new
subjects were 	raised during the 	impasse 	proceedings which were
not made public.
This argument must fail 	for two reasons. 	First, 	UPC did not
set 	forth 	facts 	regarding this violation in its 	charge 	and did
not 	amend the 	charge when afforded 	the 	opportunity to do 	so.
Second, 	after 	initial 	public 	disclosure 	and appropriate 	comment
period, 	parties 	engage 	in closed sessions. 	There 	is 	always 	the
potential 	that undisclosed topics will be raised. 	The 	"check" 	on
this 	potential 	problem is 	the disclosure 	of the 	final 	agreement.
If 	the agreement contains 	subjects 	previously undisclosed, 	a
violation has 	occurred. 	To 	find otherwise would require
disclosure 	of 	all 	bargaining notes 	or 	the 	opening of 	closed
sessions. 	Additionally, 	the disclosure of the 	content of the
closed sessions, 	prior to their conclusion, 	would 	seriously
undermine 	their 	obvious 	usefulness.
UPC alleges one other potential violation. 	It contends, 	on
appeal, 	that section 3571, 	subdivision 	(a) 	has been violated
because
[e]mployees have 	now been 	given a 	contract
which refers 	to a 	secret document. 	This
contract effects their wages, 	hours, 	and
working conditions. 	Without access 	to the
secret document, 	they are unable to know what
their rights are.
The 	Board agent dismissed 	UPC's 	allegation 	of 	a violation 	of
section 3571, 	subdivision 	(a) 	because 	"there is no employee who
11See footnote 	6 	for text of this 	section.
Co
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is 	alleged by UPC to have exercised rights 	under HEERA, 	or who 	is
alleged 	to 	have 	been discriminated 	against 	because 	of 	the
exercise 	of 	HEERA rights." 	The 	Board 	agent 	further 	found 	the
allegation to be 	deficient 	in that 	there were no 	facts 	presented
that 	an 	employee 	asked 	for 	and was 	denied 	access 	to 	the 	requested
document. 	We agree with this analysis.12
ORDER
Therefore, 	since under none of the 	theories 	or 	facts
presented 	is 	there 	a prima 	facie 	violation 	stated, 	we AFFIRM the
Board 	agent's 	DISMISSAL WITHOUT LEAVE 	TO AMEND.
Members 	Porter 	and 	Shank 	joined 	in 	this 	Decision.
12To the Board agent's 	analysis, 	we would add that it 	is 	not
clear whether 	the 	contract provided 	to 	employees 	included 	the
portions 	of 	the 	draft 	factfinding report 	referenced.
Furthermore, 	HEERA does not 	impose upon the employer the 	duty to
provide 	individual 	copies 	of 	the 	contract to employees. 	The
employer must, 	however, 	provide 	"a true copy of the agreement and
any amendments" 	with the PERB regional 	office. 	(See 	PERB
Regulation 	32120.) 	A failure 	to do 	so may constitute 	a violation
of 	that regulation. 	No 	such violation has been alleged.
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