Saddleback Community College District (PERB 1004E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SADDLEBACK 	COMMUNITY 	COLLEGE
DISTRICT 	FACULTY ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
SADDLEBACK 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3195
PERB Decision No. 	1004
June 25, 	1993
Appearances; 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Saddleback Community College District
Faculty Association, 	CTA/NEA; 	Littler, Mendelson, 	Fastiff, 	Tichy,
& Mathiason by Richard J. 	Currier, 	Attorney, 	for Saddleback
Community 	College 	District.
Before Blair, 	Chair; 	Hesse and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	Saddleback
Community College District 	Faculty Association, 	CTA/NEA
(Association) 	of a Board agent's dismissal 	(attached hereto) 	of
its 	charge. 	The Association alleged that 	the Saddleback
Community College District 	(District) 	violated 	section 	3543.5(b)
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and 	(e) 	of the Educational Employment Relations Act 	(EERA)1 by-
demonstrating bad 	faith 	during 	factfinding.
Having reviewed de novo the 	charge, 	PERB impasse 	file LA-M-
2210, 	the appeal and the District's response, 	thereto, 	the Board
finds 	that 	the 	charge 	fails 	to state a prima 	facie 	case. 	The
Board also 	finds 	the 	Board agent's 	dismissal 	and warning 	letter
to be 	free 	of 	prejudicial 	error and adopts 	them as 	the decision
of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3195 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Carlyle 	joined 	in 	this 	Decision.
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
(b) 	Denying to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(e) 	Refuse 	to participate 	in good faith 	in the
impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
PERD
January 8, 	1993
Thomas L. 	Brown, 	Consultant
California 	Teachers 	Association
960 N. 	Amelia Avenue
San Dimas, 	CA 	91773
Re: 	DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE 	COMPLAINT, 	Unfair 	Practice
Charge No. 	LA-CE-3195, 	Saddleback Community College District
Faculty Association. 	CTA/NEA v. 	Saddleback Community College
District
Dear Mr. 	Brown:
In 	the 	above-referenced 	charge, 	the 	Saddleback 	Community 	College
District 	Faculty Association, 	CTA/NEA 	(Association) 	alleges 	that
the 	Saddleback 	Community 	College 	District 	(District) 	refused 	to
participate in good faith in the statutory impasse procedure. 	This
conduct 	is 	alleged 	to 	violate 	Government 	Code 	sections 	3543.5(b)
and 	(e) 	of the Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated December 22, 	1992,
that the above-referenced charge did not state a prima facie case.
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 to state a prima facie case or
withdrew 	it 	prior 	to 	January 	8, 	1993, 	the 	charge 	would 	be
dismissed.
On 	January 	7, 	1993, 	I 	received 	from you 	an 	amended 	charge. 	The
amended 	charge 	argues 	in 	part 	(for 	the 	first 	time) 	that 	the
appointment of the factfinding panel was not effective until April
1, 	1992, 	when 	the 	appointment 	letter 	(dated March 	31, 	1992) 	was
actually 	mailed, 	or 	until 	five 	days 	later. 	The 	amended 	charge
cites 	PERB 	Regulations 	32130 	and 	32798, 	but 	these 	regulations 	do
not 	support 	this argument. 	The amended 	charge also 	includes 	some
additional 	allegations 	of 	fact, 	but 	these allegations 	do not 	show
that 	the 	District 	refused 	to participate 	in 	the 	impasse procedure
in 	good 	faith 	or 	engaged 	in 	a 	course 	of 	conduct 	which 	frustrated
that procedure. 	Therefore, 	I 	am dismissing 	the 	charge, 	based on
the 	reasons 	contained 	in my December 	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

LA-CE-3195
January 8, 	1993
Page 2
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:
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.)

LA-CE-3195
January 8, 	1993
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,
ROBERT THOMPSON
Deputy General 	Counsel
By	B Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Richard J. 	Currier, 	Esq.
Y~-

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERU
December 22, 	1992
Thomas L. 	Brown, 	Consultant
California 	Teachers 	Association
960 N. 	Amelia Avenue
San Dimas, 	CA 	91773
Re: 	WARNING 	LETTER, 	Unfair 	Practice 	Charge 	No. 	LA-CE-3195,
Saddleback 	Community 	College 	District 	Faculty 	Association,
CTA/NEA v. 	Saddleback 	Community 	College 	District
Dear Mr. 	Brown:
In 	the 	above-referenced 	charge, 	the 	Saddleback 	Community 	College
District 	Faculty Association, 	CTA/NEA 	(Association) 	alleges 	that
the 	Saddleback 	Community 	College 	District 	(District) 	refused 	to
participate in good faith in the statutory impasse procedure. 	This
conduct 	is 	alleged 	to 	violate 	Government 	Code 	sections 	3543.5(b)
and 	(e) 	of the Educational Employment Relations Act 	(EERA).
My 	investigation reveals 	the 	following 	facts.
The 	Association 	and 	the 	District 	were 	parties 	to 	a 	collective
bargaining agreement that expired on June 30, 	1991. 	In May 1991,
the parties began negotiations 	for a new agreement. 	In September
1991, 	the Public Employment Relations Board 	(PERB) 	determined that
the parties were at impasse and appointed a mediator. 	In February
1992, 	the 	mediator 	certified 	the 	matter 	for 	factfinding, 	and 	on
March 31, 	1992, 	PERB appointed a factfinder.
Beginning 	as 	early 	as 	February 	25, 	1992, 	the 	District 	indicated
that 	it 	would 	not 	agree 	to 	waive 	the 	30-day 	timeline 	for
factfinding specified in Government Code section 3548.3(a) 	and that
therefore "the factfinding process must conclude within thirty 	(3 0)
days after the appointment of the factfinding panel." 	On March 16,
1992, 	the Association formally requested a waiver of the timeline,
but 	the District maintained 	its 	position. 	On April 	6, 	1992, 	the
District 	stated, 	"If 	the 	factfinding 	process 	is 	not 	concluded
within the 30-day period, 	the District will 	take the position that
the 	factfinding 	process 	is 	automatically 	concluded 	by 	law." 	On
April 	14, 	1992, 	PERB 	denied 	the 	Association's 	request 	that 	PERB
itself 	waive 	the 	30-day timeline.
A factfinding hearing was 	scheduled for April 	24, 	1992. 	On April
16, 	1992, 	the District 	proposed 	"expedited" 	factfinding based 	on
one 	day 	of 	hearing, 	but 	on 	April 	20, 	1992, 	the 	Association
declined. 	On 	April 	24, 	1992, 	when 	the 	parties 	met 	for 	the

LA-CE-3195
December 22, 	1992
Page 2
scheduled 	hearing, 	the 	District 	indicated 	an 	unwillingness 	to
continue 	the 	hearing 	after April 	30, 	1992. 	The 	Association 	then
refused to proceed, 	and the 	factfinder rescheduled the hearing for
April 30, 	1992, 	and, 	if necessary, May 1, 	1992.
The hearing got underway on April 	30, 	1992. 	At approximately
3:30 p.m., 	the District 	indicated an unwillingness 	to 	continue.
Based on the facts stated above, 	the charge does not state a prima
facie violation of 	the EERA for the 	reasons 	that 	follow.
Government 	Code 	section 	3548.3(a) 	provides 	in 	relevant 	part 	as
follows:
If the dispute 	[in factfinding] 	is not settled within 30
days 	after 	the 	appointment 	of 	the 	[factfinding] 	panel,
or, 	upon the 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. 	[Emphasis added.]
As 	this 	language 	makes 	clear, 	the 	30-day 	timeline 	is 	waived 	only
"upo	"upon agreement by both parties." Neither party has a statutory	n 	agreement 	by both parties." 	Neither party 	has 	a 	statutory
dut	dutyy t	to	o agre	agreee 	t	too suc	suchh a	a waiver	waiver.	.
The 	present 	charge 	alleges 	a 	course 	of 	conduct 	in 	which 	the
District 	clearly 	and 	consistently 	maintained 	that 	it 	would 	not
waive 	the 	30-day 	timeline. 	There 	was 	no 	element 	of 	surprise,
since 	the 	District 	indicated 	its position 	for over a month before
the 	factfinder 	was 	even 	appointed. 	The 	present 	charge 	does 	not
allege 	facts 	showing 	a 	course 	of 	conduct 	in 	which 	the 	District
otherwise 	frustrated 	the 	factfinding 	process.1 The 	charge
therefore does not show that the District refused to participate in
good 	faith 	in 	the 	statutory 	impasse procedure.
1In a letter dated April 	3, 	1992, 	the District stated in part
as follows:
Representatives 	of 	the District 	are 	ready and
available 	to 	immediately 	commence 	the
factfinding 	process 	in 	order 	to 	conclude 	it
within 	the 	30 	day 	period 	required 	by 	law.
With few exceptions, 	District 	representatives
are 	available 	every 	day, 	including 	weekends,
during 	the 	next 	thirty 	(30) 	days 	so 	that 	the
factfinding 	process 	can 	be 	concluded 	in 	a
timely 	fashion.

LA-CE-3195
December 22, 	1992
Page 3
For these reasons the charge, 	as presently written, 	does not state
a prima facie case. 	If there are any factual 	inaccuracies 	in this
letter 	or 	additional 	facts 	which 	would 	correct 	the 	deficiencies
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 must be 	filed
with 	PERB. 	If 	I 	do 	not 	receive 	an 	amended 	charge 	or 	withdrawal
from you before January 8, 	1992, 	I shall dismiss your charge. 	If
you have any questions, 	please call me at 	(213) 	736-3127.
Sincerely,
THOMAS J. 	ALLEN
Regional 	Attorney
' 	V