California State University (State Employees Trade Council) (PERB 0986H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES 	COUNCIL,
Charging 	Party,
v.
CALIFORNIA STATE UNIVERSITY,
Respondent.
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) 	Case No. 	LA-CE-316-H
PERB Decision No. 	986-H
March 30, 	1993
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Appearance: 	Eggleston, 	Siegel and LeWitter by James E.
Eggleston, 	Attorney, 	for State Employees Trades Council.
Before Hesse, 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the State 	Employees
Trades 	Council 	(SETC) 	to a Board agent's 	dismissal 	and deferral
to arbitration 	(attached hereto) 	of SETC's 	charge 	that 	the
California State University 	(CSU) 	violated Government 	Code
section 3571(a), 	(b) 	and 	(c) 	of the Higher Education Employer-
Employee Relations Act 	(HEERA).1
1HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.

(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	Board agent's 	dismissal 	and
finding 	it 	free 	of prejudicial 	error adopts 	it as 	the decision of
the 	Board 	itself.
DISCUSSION
On appeal, 	SETC argues 	that deferral 	to arbitration is
futile as 	CSU refuses 	to 	submit 	the 	issues 	to 	the 	arbitrator.
However, 	PERB 	is not 	empowered to enforce 	contracts between
parties.2 PERB's 	authority is 	limited to a jurisdictional 	review
of 	the language of 	the contract. 	To remedy a situation as 	the
one alleged by SETC, 	HEERA section 3589(b)3 permits a party to
2Section 3563.2(b) 	states:
(b) 	The Board shall 	not have authority to
enforce agreements between the parties, 	and
shall 	not 	issue 	a 	complaint 	on any charge
based 	on alleged violation 	of 	such an
agreement 	that 	would not 	also 	constitute 	an
unfair practice under this 	chapter.
3Section 3589(b) 	states:
(b) 	Where a party to a memorandum of
understanding 	is 	aggrieved by 	the 	failure,
neglect, 	or refusal 	of 	the other party to
proceed 	to arbitration pursuant 	to 	the
procedures 	provided 	therefor 	in 	the
memorandum, 	the 	aggrieved party may bring
proceedings pursuant 	to Title 	9 	(commencing
with Section 1280) 	of Part 3 	of the Code of
Civil 	Procedure 	for a 	court 	order directing
that 	the 	arbitration proceed pursuant 	to 	the
procedures 	provided 	therefor 	in 	such
memorandum of 	understanding.
22

proceed directly to 	court 	to 	seek 	enforcement 	of 	the parties'
arbitration 	agreement.4
SETC also asserts 	it 	is 	inappropriate 	to defer to
arbitration, 	the allegation 	concerning 	the 	refusal 	to provide
information. 	SETC 	relies 	on National 	Labor Relations 	Board v.
Davol. 	Inc. 	(1979) 	101 LRRM 2242 	(Davol) 	where the National Labor
Relations 	Board declined to defer to arbitration, 	a 	charge 	that
an 	employer 	refused 	to provide 	information 	requested 	to pursue 	a
grievance to arbitration. 	However, 	Davol 	is distinguishable 	from
this 	case. 	In Davol. 	the 	contract between the parties did not
require parties 	to 	furnish 	information or provide 	for binding
arbitration on such matters. 	Here, 	however, 	section 7.11 of 	the
collective bargaining agreement 	(CBA) 	provides 	in part:
Upon written request 	to 	the Office of 	the
Chancellor, 	the Union shall 	be provided with
specifically 	identified 	information 	on wages,
hours, 	and working conditions 	related to
negotiations. . . .
Further 	the 	CBA between 	SETC and 	CSU provides 	for binding
arbitration of grievances. 	As 	the 	refusal 	to provide 	requested
information directly 	involves 	an 	interpretation 	of 	section 	7.11
of 	the 	CBA, 	the 	charge was 	properly dismissed and deferred to
arbitration.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-316-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Caffrey 	joined 	in 	this 	Decision.
Member Hesse's 	dissent begins 	on page 	4.
4The Board notes 	CSU's May 6, 	1992 	letter to the Board agent
which states 	that 	if 	this matter is deferred to arbitration, 	CSU
will 	waive all 	procedural 	defenses 	to arbitrating 	this 	dispute.
W3

Hesse, 	Member, 	dissenting: 	The dismissal 	reflects an
improper and 	incomplete 	reading 	of 	the 	Public 	Employment
Relations 	Board's 	(PERB or Board) 	prearbitration deferral
jurisdiction under 	the 	Higher 	Education 	Employer-Employee
Relations Act 	(HEERA). 	Consequently, 	I would reverse the
dismissal 	and 	remand 	the 	case 	to 	the General 	Counsel 	for 	further
investigation.
State Employees Trades Council 	(SETC or Union) 	has 	the
burden of 	establishing the Board's 	jurisdiction. 	On appeal, 	SETC
argues 	that 	the 	Board has 	jurisdiction as 	deferral 	to arbitration
is not 	appropriate where 	the 	request 	for arbitration is 	futile.
SETC 	disputes 	the 	suggestion made 	in 	the 	California 	State
University's 	(CSU) 	letter 	(dated May 6, 	1992) 	to the PERB Board
agent 	that 	"if 	the 	dispute 	is 	dismissed by 	PERB and deferred 	to
arbitration, 	the CSU will waive all 	of 	its procedural 	defenses 	to
arbitrating this dispute, 	including timeliness, 	which may exist
in this 	case." 	(See Board agent's 	letter of September 22, 	1992,
attached.) 	First, 	SETC argues 	that CSU did not notify the Union
that CSU would go to arbitration. 	Secondly, 	on May 28, 	1992, 	22
days after the May 6 	CSU letter, 	in a telephone 	conference with
Arbitrator Kathy Kelly, 	SETC and CSU representatives, 	CSU flatly
refused 	to 	submit 	the 	dispute 	to arbitration and 	refused 	to
process 	to arbitration a 	separate grievance 	related to 	the
dispute on the grounds 	that 	the grievance was untimely.
The 	Board agent 	relies 	upon 	the 	standards 	articulated 	in
Collyer Insulated Wire 	(1971) 	192 NLRB 837 	[77 LRRM 1931] 	to 	find
that 	the 	charge must be deferred to arbitration. 	I 	disagree with
44

the 	standard 	the 	Board has 	applied 	to 	the 	pleading. 	In 	Lake
Elsinore 	School 	District 	(1987) 	PERB Decision No. 	646 	(Lake
Elsinore) 	pp. 	31-32, 	the Board found the 	Collyer standards
- -
neither 	controlling 	nor 	instructive 	and 	expressly 	overruled 	the
application 	of 	Collyer prearbitration 	deferral 	standards 	to 	the
Educational 	Employment 	Relations 	Act 	(EERA) 	and 	the 	Ralph 	C.
Dills 	Act 	cases. 	Although 	the 	jurisdictional 	magic 	words 	(see
EERA section 	3541.5(a)1) 	do 	not 	appear 	in HEERA 	section 	3563.2,2
1 Section 3541.5 	states, 	in pertinent part:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what 	remedy is 	necessary to
effectuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction 	of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and deciding 	these
cases 	shall 	be 	devised 	and promulgated 	by 	the
board 	and 	shall 	include 	all 	of 	the 	following:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the 	board
shall 	not 	do 	either 	of 	the 	following:
(1) 	Issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge;
(2) 	Issue 	a 	complaint 	against 	conduct
also 	prohibited 	by 	the 	provisions 	of 	the
agreement 	between 	the 	parties 	until 	the
grievance machinery 	of 	the 	agreement, 	if 	it
exists 	and 	covers 	the matter at 	issue, 	has
been 	exhausted, 	either by 	settlement 	or
binding arbitration. 	However, 	when the
charging 	party 	demonstrates 	that 	resort 	to
contract 	grievance 	procedure 	would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary. 	The 	board
shall 	have 	discretionary 	jurisdiction 	to
review 	the 	settlement 	or 	arbitration 	award
reached 	pursuant 	to 	the 	grievance 	machinery
solely 	for 	the 	purpose 	of 	determining 	whether
it 	is 	repugnant 	to 	the 	purposes 	of 	this
55

PERB Regulation 32620(b)(5)3 reinforces part 	of 	the policy of
chapter. 	If 	the board finds 	that 	the
settlement 	or arbitration award 	is 	repugnant
to the purposes of this chapter, 	it shall
issue a 	complaint 	on the basis 	of a timely-
filed charge, 	and hear and decide 	the 	case 	on
the merits. 	Otherwise, 	it shall dismiss the
charge. 	The board shall, 	in determining
whether the 	charge was 	timely filed, 	consider
the 	six-month 	limitation 	set 	forth 	in 	this
subdivision 	to 	have been 	tolled during 	the
time 	it 	took the 	charging party to 	exhaust
the 	grievance machinery.
2Section 3563.2 states:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair practices 	are 	justified,
and, 	if 	so, 	what 	remedy is 	necessary to
effectuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction of 	the board. 	Procedures 	for
investigating, 	hearing, 	and deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by 	the
board.
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge.
(b) 	The 	Board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair practice 	under 	this 	chapter.
3PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	et 	seq. 	PERB Regulation
32620 	states, 	in pertinent part:
(b) 	The powers 	and duties 	of 	such Board
agent 	shall 	be 	to:
(5) 	Dismiss 	the 	charge 	or any part
thereof 	as 	provided 	in 	section 	32630 	if 	it 	is
66

Lake Elisnore. 	It 	requires 	the Board to dismiss 	the 	charge 	if 	it
is 	subject 	to 	final 	and binding arbitration. 	While 	the 	HEERA
statute 	neither grants 	the 	Board 	the 	authority 	to 	review nor does
the 	statute prohibit 	Board 	review of 	cases 	where 	the 	request 	for
arbitration is 	futile, 	the 	regulation implies 	that arbitration is
a viable means of resolving the parties' 	dispute. 	On appeal, 	the
Union has 	alleged that arbitration 	is 	not viable and that 	it was
prejudiced by 	the Board agent's 	reliance 	on 	the 	CSU 	letter.
In the underlying charge before 	the Board, 	it 	is difficult
to 	determine whether 	the 	SETC advanced 	the 	argument 	that 	a
request 	for arbitration would be 	futile 	and whether 	the 	Board
agent 	properly 	considered 	the 	futility 	theory.4 (See 	Ramona
Unified School District 	(1984) 	PERB Decision No. 	472.) 	The
concept 	of 	futility under EERA section 	3541.5 	requires 	a
demonstration that 	the arbitration step of 	the grievance
procedure 	cannot be 	invoked or completed. 	(See 	State 	of
California 	(Department of Corrections) 	(1986) 	PERB Decision
No. 	561-S.) 	The employer's willingness 	to proceed to arbitration
is 	in dispute. 	Where 	the 	integrity of 	the arbitration process 	is
determined 	that 	the 	charge 	or the 	evidence 	is
insufficient 	to 	establish a prima 	facie 	case;
or 	if 	it 	is 	determined that 	a 	complaint may
not 	be 	issued 	in 	light 	of 	Government 	Code
sections 	3514.5, 	3541.5 	or 3563.2 	or because
a dispute 	arising under HEERA is 	subject 	to
final 	and binding 	arbitration.
4SETC 	alleges 	that 	it 	did not 	have 	an opportunity 	to 	respond
to 	the 	Board Agent's 	warning 	letter 	or amend 	the 	charge 	because
the warning letter was 	received by SETC on September 28, 	1992,
the 	day before 	the Board Agent's 	deadline 	for a 	response.
77

at 	issue 	in HEERA, 	I 	find that 	the Board has 	the discretion to
examine 	the 	futility concept. 	(See 	California State University
(SETC) 	(1984) 	PERB Decision No. 	392-H.)
Therefore, 	I would reverse 	the dismissal 	and remand the 	case
to 	the 	PERB General 	Counsel 	for 	further 	investigation.
88

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
September 29, 	1992
James E. 	Eggleston
Eggleston & 	Siegel
1330 	Broadway, 	Suite 	1700
Oakland, 	CA 	94612
RE: 	DISMISSAL AND 	REFUSAL 	TO 	ISSUE 	COMPLAINT 	(DEFERRAL 	TO
ARBITRATION), 	Unfair Practice Charge No. 	LA-CE-316-H,
State Employees 	Trades 	Council 	v. 	California 	State
University
Dear Mr. 	Eggleston:
In the 	above-referenced 	charge, 	the 	State 	Employees 	Trades
Council 	(SETC) 	alleges 	that 	the 	California 	State 	University 	(CSU)
refused 	to bargain effects 	of 	layoff, 	refused to provide
requested 	information, 	and 	retaliated 	against 	employees 	for
pursuing grievances. 	This 	conduct 	is 	alleged to violate
Government Code sections 	3571(a), 	(b) 	and 	(c) 	of the Higher
Education Employer-Employee 	Relations 	Act 	(HEERA).
I 	indicated 	to 	you, 	in my 	attached 	letter dated 	September 	22,
1992, 	that the 	above-referenced 	charge was 	subject 	to deferral 	to
arbitration. 	You were advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge. 	You were 	further advised that, 	unless 	you 	amended 	the
charge or withdrew it prior to September 	29, 	1992, 	it would be
dismissed.
I 	have 	not 	received 	either an 	amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and 	reasons 	contained 	in my 	September 	22 	letter.
Right 	to 	Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to the 	Board 	itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	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 p.m.) 	or 	sent by telegraph,
certified 	or Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 	1013 	shall 	apply.
The Board's 	address 	is:

Dismissal
LA-CE-316-H
September 29, 	1992
Page 2
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal 	of the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each copy 	of 	a document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in the 	first-class 	mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of time, 	in which to 	file a document
with the Board 	itself, 	must be 	in writing and filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party 	regarding the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

. . .
Dismissal
LA-CE-316-H
September 29, 	1992
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
fromand all	By THOMAS J. ALLEN
Regional 	Attorney
Attachment
cc: 	Carlos Cordova

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127	FERB
September 22, 	1992
James E. 	Eggleston
Eggleston & 	Siegel
1330 Broadway, 	Suite 	1700
Oakland, 	CA 	94612
RE: 	WARNING LETTER 	(DEFERRAL TO ARBITRATION), 	Unfair
Practice Charge No. 	LA-CE-316-H, 	State Employees Trades
Council 	v. 	California 	State University
Dear Mr. 	Eggleston:
In the above-referenced charge, 	the State Employees 	Trades
Council 	(SETC) 	alleges 	that the California State University 	(CSU)
refused to bargain effects 	of 	layoff, 	refused to provide
requested 	information, 	and retaliated 	against 	employees 	for
pursuing grievances. 	This 	conduct 	is 	alleged to violate
Government Code sections 3571(a), 	(b) 	and 	(c) 	of the Higher
Education Employer-Employee Relations Act 	(HEERA).
The 	collective 	bargaining 	agreement 	between SETC 	and 	CSU provides
for binding arbitration of 	grievances. 	The 	agreement also
provides 	in relevant parts 	as 	follows:
7.11 	Upon written request 	to the Office of 	the
Chancellor, 	the Union shall be provided with
specifically 	identified 	information on wages,
hours, 	and working conditions 	related to
negotiations. 	Such 	information shall be
provided within a 	reasonable period of 	time.
The 	Union may be 	required 	to bear the 	cost of
such information, 	if there is a cost
associated. 	It 	is 	understood that this
Article 	shall not be 	construed to require 	the
CSU 	to 	develop 	or 	compile 	any 	information or
data 	in a 	form not 	already 	compiled.
7.16 	An employee 	shall 	not 	suffer reprisals 	for
- participating 	in union activities.
9.18 	No 	reprisals 	of 	any 	kind 	shall 	be 	taken
against 	any unit 	member 	for 	the 	filing 	and
processing of 	any 	grievance.
, 	, 	,
, 	, 	,

" . . . .. ard.. .
Warning 	Letter
LA-CE-316-H
September 22, 	1992
Page 2
*
29. 3	lJ1....]_ When the 	CSU determines 	that 	there may be 	a
need 	for 	implementation of 	any procedures
outlined in this Article 	[Layoff], 	the CSU
agrees 	to 	immediately 	meet 	and 	confer with
the 	Union on the bargaining unit 	impact
including, 	but not limited to, 	voluntary
programs, 	reduced worktime, 	leaves of
absence, 	and other personnel actions.
* 	*
29.8 	An 	employee who possesses 	documentable
specialized 	skills 	that 	are 	needed 	for 	the
program not 	possessed 	by other 	employees 	in
classification(s) 	undergoing layoff, 	may be
excluded by 	the 	President 	from the 	layoff
list.
Based 	on 	the 	facts 	stated 	above 	and 	PERB 	Regulation 	32620(b)(5)
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5)), 	this charge must
be 	dismissed 	and 	deferred 	to 	arbitration under 	the 	agreement.
PERB 	Regulation 	32620(b)(5) 	requires 	the 	Board 	agent processing
the 	charge to:
Dismiss 	the 	charge 	or any part 	thereof 	as
provided 	in section 	32630 	if 	it 	is 	determined
that 	. . . 	a 	complaint may 	not be 	issued 	in
light of Government Code 	sections 	3514.5,
3541.5 	or 	3563.2 	or because 	a dispute arising
under HEERA 	is 	subject 	to 	final 	and binding
arbitration.
In 	Dry Creek Joint 	Elementary 	School 	District 	(1980) 	PERB Order
No. 	Ad-81a, 	the Board explained that:
While 	there 	is 	no 	statutory deferral
requirement 	imposed 	on the 	National 	Labor
Relations Board 	(hereafter NLRB), 	that agency
has 	voluntarily 	adopted 	such 	a policy 	both
with 	regard 	to 	post-arbitral 	and 	pre-arbitral
2
award 	situations. 	EERA 	section 	3541.5(a)
essentially 	codifies 	the 	policy 	developed 	by
the 	NLRB 	regarding deferral 	to 	arbitration
proceedings and awards. 	It 	is appropriate,
therefore, 	to 	look for guidance to the

. . . . 	IN . .
private sector.3 [Fn. 	2 omitted; 	fn. 	3 to
Fire Fighters 	Union v. 	City of Vallejo 	(1974)
12 Cal.3d 608.]
Warning 	Letter
LA-CE-316-H
September 22, 	1992
Page 3
Although 	this 	case 	arose 	under 	the 	Educational 	Employment
Relations Act, 	and was 	overruled on 	statutory grounds 	in
Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
the rationale 	is 	still applicable to 	cases 	arising under the
Higher Education Employer-Employee 	Relations Act. 	(Regents 	of
the University of California 	(1983) 	PERB Order No. 	Ad-139-H;
California State University 	(1984) 	PERB Decision No. 	392-H.)
In Collyer Insulated Wire 	(1971) 	192 	NLRB 	837 	[77 	LRRM 	1931] 	and
subsequent cases, 	the National 	Labor Relations 	Board articulated
standards 	under which deferral 	is 	appropriate 	in prearbitral
situations. 	These requirements are: 	(1) 	the dispute must arise
within a 	stable 	collective 	bargaining relationship where 	there 	is
no enmity by the respondent toward the 	charging party; 	(2) 	the
respondent must 	be 	ready 	and willing 	to proceed to 	arbitration
and must waive contract-based procedural defenses; 	and 	(3) 	the
contract and 	its 	meaning must 	lie at 	the 	center of the dispute.
These 	standards are met with respect to this 	case. 	First, 	no
evidence has 	been produced to 	indicate that 	the parties 	are not
operating within a 	stable 	collective bargaining relationship.
Second, 	by the attached letter from its 	representative, 	Carlos
Cordova, 	dated May 6, 	1992, 	the Respondent has 	indicated its
willingness 	to proceed 	to 	arbitration and to waive 	all procedural
defenses. 	Finally, 	the issues raised by this charge, 	that CSU
refused to bargain effects 	of 	layoff, 	refused to provide
requested 	information, 	and retaliated against employees 	for
pursuing grievances, 	directly 	involve 	an 	interpretation of
sections 	7.11, 	7.16, 	9.18, 	29.3 	and 2 9.8 of the agreement.
Accordingly, 	this 	charge must 	be deferred to 	arbitration and
will be dismissed. 	Such dismissal 	is without prejudice to 	the
Charging Party's right, 	after arbitration, 	to 	seek a repugnancy
review by 	PERB 	of 	the 	arbitrator's 	decision 	under 	the 	Dry Creek
criteria. 	(See PERB Reg. 	32661 	[Cal. 	Code of Regs., 	tit. 	8,
sec. 	32661]; 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint Elementary School 	District.
supra.)
If 	there are 	any 	factual 	inaccuracies 	in this 	letter or any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the one 	explained above, 	please 	amend the 	charge. 	The amended
charge 	should be prepared 	on a 	standard 	PERB 	unfair practice
charge 	form clearly 	labeled 	First Amended 	Charge, 	contain 	all-

the 	facts 	and allegations 	you wish to make, 	and be 	signed under
penalty of perjury by the Charging Party. 	The 	amended 	charge
must be 	served on the Respondent 	and 	the 	original 	proof 	of
service 	filed with PERB. 	If 	I 	do not receive an amended 	charge
or withdrawal 	from you before September 29, 	1992, 	I 	shall dismiss
your charge. 	If you have any questions, 	please call me at 	(213)
736-3127.
Warning 	Letter
LA-CE-316-H
September 22, 	1992
Page 4
Sincerely,
Thomand allenThomas J. 	Allen
Regional 	Attorney
Attachment

THE CALIFORNIA STATE UNIVERSITY
BAKERSFIELD
SACRAMENTO
CHICO • DOMINGUEZ HILLS • FRESNO
SAN BERNARDINO • SAN DIEGO
•
•
FULLERTON • HAYWARD • HUMBOLDT • LONG BEACH
SAN 	FRANCISCO 	SAN JOSE • SAN LUIS OBISPO 	' 	SAN
LOS ANGELES • NORTHRIDGE • POMONA
MARCOS . 	SONOMA 	• 	STANISLAUS
OFFICE OF GENERAL COUNSEL
TELEPHONE: ( 3 1 0 ) 	9 8 5 - 2 9 0 6
TAS
MITA TELEFAX: (310) 985-2925
May 6, 1992
CERTIFIED 	MAIL
Return 	Receipt 	Requested
Thomas J. 	Allen
Regional Attorney Public Employment Relations Board
3530 Wilshire Blvd., 	Suite 	650
Los Angeles, 	California 	90010-2334 CHAI3038
Re: 	Unfair Practice Charge No. 	LA-CE-316-H - 	State Employees
Trades Council v. 	California State University - CSU, 	Long
Beach: Our File No. 	L92-237
Dear Mr. Allen:
Our 	office 	is 	in 	receipt of 	the 	statement 	of 	charges 	in the
above-mentioned matter. 	It 	is 	our 	position that 	the matter
should 	be 	deferred 	to 	arbitration 	under 	the 	Collyer1
doctrine 	and/or 	the 	statement 	of 	charges 	fails 	to 	state 	a 	prima
facie 	case 	for 	violation of 	HEERA 	and 	should 	therefore 	be
dismissed.
In 	a 	nutshell, 	the Charging Party alleges 	that 	the 	employer 	has
breached 	its 	statutory duty to 	bargain 	in 	good 	faith 	by
refusing 	to 	bargain over 	implementation of 	a 	layoff 	decision
and 	by 	refusing 	to 	provide 	information 	regarding 	implementation
of 	a 	layoff decision. 	In addition, 	the Charging Party alleges
that 	the 	employer 	has 	retaliated 	against 	bargaining 	unit
employees 	and 	the 	union 	for 	pursuing 	grievances 	challenging
layoff decisions.
1 Collyer 	Insulated 	Wire 	(1971) 	192 	NLRB 	837, 	77 	LRRM 	1931.
OFFICE OF THE CHANCELLOR • 400 GOLDEN SHORE, LONG BEACH, CA 90802-4275 	INFORMATION: (310) 985-2500
\
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Thomas J. Allen, 	Esq.
May 	6, 	1992
Page 2
I. 	Failure 	to bargain 	in good 	faith on 	the 	layoff 	decision.
The Charging 	Party alleges 	that 	the campus 	has 	failed 	to
bargain matters 	related 	to 	implementation 	of 	the 	layoff
decision. 	The statement of charges, 	however, 	fails 	to 	allege
that 	a 	layoff 	decision has 	in 	fact 	been made. 	As 	of 	the date
of 	this 	letter, 	the employer 	has 	not 	finalized 	any 	layoff
decision. 	Specifically, 	no 	notice of 	layoff 	has 	been forwarded
to 	the 	employee 	as 	is 	required by Articles 	29.15 	and 	29.16 	of
the Memorandum of Understanding 	(MOU) 	between 	the 	parties
(copies 	attached). 	Any requirement 	of 	the employer under HEERA
to 	negotiate 	implementation of 	layoff 	is 	premature 	at 	this 	time
(see, Mt. 	Diablo Unified School District 	(1983), 	PERB Dec.
No. 373, p. 26).
If 	PERB determines 	that 	the employer 	has 	a 	duty to 	bargaining
the 	implementation of 	layoff 	prior 	to 	rendering 	a 	final
decision to 	institute 	layoff, 	the Board 	should 	find 	that 	the
union has waived 	its 	right 	to 	negotiate 	this 	issue.
Specifically, 	the Charging 	Party alleges 	that 	the CSU failed 	to
bargain 	over 	the 	so-called 	proposed 	"specialized 	skills 	test."
The MOU between the 	parties 	grants 	the 	president 	of 	a 	campus
the 	sole discretion 	to 	determine which employees 	possess
documentable 	specialized 	skills 	sufficient 	to 	be 	excluded 	from
the 	layoff 	list. 	(See Article 29.8, 	attached.)
Furthermore, 	if 	the employee or 	the union believes 	that 	the
campus 	has 	violated, 	misapplied or misinterpreted 	this Article
of 	the MOU pursuant 	to Articles 	9.1 	and 	9.2 	(see 	attached),
both 	the employee 	and the union have 	a 	right 	to 	submit 	the
matter 	to 	the 	contract 	grievance 	procedure.2 The 	parties
have 	a 	stable 	collective 	bargaining 	relationship 	and 	if 	the
dispute 	is 	dismissed by PERB 	and deferred 	to 	arbitration, 	the
CSU will waive 	all 	of 	its 	procedural 	defenses 	to 	arbitrating
this dispute, 	including 	timeliness, 	which may exist 	in this
case. 	For the 	above-stated 	reasons, 	it 	is clear 	that 	all 	of
2 In 	fact, 	the 	CSU's 	request 	to 	the 	affected 	employees
regarding 	specialized 	skills 	was 	made 	pursuant 	to 	an 	order
by 	an 	arbitrator 	interpreting 	the 	language 	of
Article 29.8. 	In her decision, 	Arbitrator Kelly 	reserved
jurisdiction 	over 	any 	and 	all 	disputes 	that 	may 	arise
concerning 	implementation 	or 	interpretation 	of 	her
decision. 	This 	fact 	supplies 	additional 	justification 	for
deferring 	this matter 	to 	arbitration. 	(A copy of
Arbitrator 	Kelly's 	decision 	is 	attached 	to 	Charging 	Party's
Statement 	of 	Charges.)

Thomas J. Allen, 	Esq.
May 6, 	1992
Page 3
the 	Collyer 	requirements 	for 	deferral 	to 	arbitration 	exist 	in
this case.
II. 	Retaliation charge.
Charging 	Party has 	failed 	to 	allege 	any 	facts 	concerning 	this
allegation. 	Therefore, 	Charging Party has 	failed 	to 	state 	a
prima 	facie 	case 	on this 	issue 	and 	this 	charge 	should 	be
dismissed 	by PERB.
Sincerely,
BRUCE M. 	RICHARDSON
Deputy 	General 	Counsel
CARLOS 	CORDOVA
Attorney
CC:mks:0956D
Enclosures
cc: 	Ms. 	Irene Cordoba 	(all w/o enclosures)
Mr. 	Earnest Burnside
Ms. 	Ramona Canas
Richard Ludmerer, 	Esq.
Mr. 	Armando Contreras