California State University (California Faculty Association) (PERB A177H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	UNIVERSITY,
Employer,
and
CALIFORNIA FACULTY ASSOCIATION,
Exclusive Representative.
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) 	Case 	No. 	LA-M-1890-H
Administrative Appeal
PERB Order No. 	Ad-177-H
December 16, 	1988
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Appearances: 	Reich, 	Adell & Crost by Glenn Rothner, 	Attorney,
for the California Faculty Association; 	William B. 	Haughton,
Attorney, 	for the California 	State 	University.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB) 	on appeal 	by the California 	Faculty
Association 	(Association or CFA) 	from a 	PERB regional 	director's
administrative 	determination of 	impasse. 	CFA also requested a
stay 	in the 	impasse 	proceedings 	pending this 	appeal 	and until
such time as related unfair practice 	charges 	in Case No. 	LA-CE-
23 9-H 	can be 	litigated. 	The 	request of 	a 	stay 	is 	denied and we
decline 	to 	set 	aside 	the 	regional 	director's 	determination.
Having 	considered all 	circumstances 	before 	the regional
director, 	the Board itself 	finds 	that there has 	been no 	apparent
abuse 	of 	discretion by the 	regional 	director. 	Following a 	review
of 	the 	record, 	we 	find 	that 	the regional 	director 	fairly and
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reasonably weighed 	the 	enumerated 	factors 	set 	forth 	in 	Public
Employment Relations Board 	(PERB) 	Regulation section 32793(c).1
Therefore, 	the Board hereby ORDERS 	that the Association's
administrative 	appeal 	is 	DENIED.2
Chairperson Hesse 	joined 	in this 	Decision.
Member 	Craib's 	concurrence begins 	on page 	3.
1PERB rules 	are 	codified 	at 	California Administrative 	Code,
title 	8, 	section 31001 	et 	seq. 	Regulation 32793(c) 	states:
(c) 	In determining whether an impasse
exists, 	the Board 	shall 	investigate 	and may
consider 	the 	number 	and 	length 	of negotiating
sessions between the parties, 	the time period
over which the 	negotiations 	have 	occurred,
the 	extent to which the parties 	have made 	and
discussed 	counter-proposals 	to 	each other,
the 	extent 	to which the 	parties 	have reached
tentative 	agreement 	on 	issues 	during 	the
negotiations, 	the extent to which unresolved
issues remain, 	and other relevant data.
2In 	affirming 	the 	administrative 	determination we 	take 	no
position on Case No. 	LA-CE-239-H, 	which is the Association's
unfair 	practice 	charge 	that 	California 	State 	University 	failed 	to
meet 	and 	confer 	in 	good 	faith 	in violation 	of 	California
Government Code 	section 	3 571 	of 	the 	Higher Education Employer-
Employee Relations Act. 	The 	issues 	raised here will 	be 	accorded
a 	full 	evidentiary hearing 	in that 	case.
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Member Craib, 	concurring: 	I 	concur in the result reached by
my colleagues, 	as 	I believe 	the regional director properly
applied the 	criteria 	set 	forth in PERB Regulation 	32793(c).
However, 	I 	question the propriety of applying an abuse of
discretion 	standard of review. 	In my view, 	the 	application of
such 	a 	narrow 	standard 	of 	review exceeds 	the 	Board's 	authority 	to
delegate 	its 	statutory powers.
An 	abuse 	of 	discretion 	standard 	of 	review is 	exceedingly
narrow in 	scope. 	Under 	such a 	standard, 	the decision maker below
is 	given discretionary power to decide 	the 	issue 	and 	the 	exercise
of 	that discretion will 	not be 	disturbed unless 	it 	is 	abused.
The 	key 	feature 	of 	this 	process 	is 	that 	the reviewing body may
not 	substitute 	its 	own 	judgment 	for that of the body below. 	(9
Witkin, Cal. Procedure (3d ed. 	1985) Appeal, sec. 	275, p. 	286).
By 	investing 	such discretion 	in the 	regional 	director, 	the 	Board
has 	effectively delegated 	full 	authority to make 	impasse
determinations.
As 	a general 	rule, 	powers 	conferred upon public 	agencies 	and
officers which 	involve 	the 	exercise 	of 	judgment 	or discretion 	are
in the 	nature 	of public 	trusts 	and cannot be 	delegated to 	their
employees 	in the 	absence 	of 	statutory authorization. 	(Bagley v.
City of Manhattan Beach 	(1976) 	18 Cal.3d 22, 	24, 	[132 Cal.Rptr.
668]; 	California School Employees Association v. 	Personnel
Commission of the 	Pajaro Valley Unified School 	District, 	et al.
(1970) 	3 Cal.3d 139, 	144 	[89 Cal.Rptr. 	620]; 	Schecter v. 	County
of Los Angeles 	(1968) 	258 Cal.App.2d 391, 	396 	[65 Cal.Rptr. 	739];
67 Ops.Cal.Atty.Gen. 	286, 	290 	(1968). 	The Higher Education
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Employer-Employee 	Relations Act 	(HEERA) 	provides 	the 	Board with
authority to delegate its powers, 	however, 	that authority is
expressly limited. 	HEERA 	section 	3563 	enumerates 	the powers 	and
duties 	of the Board. 	Subdivision 	(j) 	states 	that 	the 	Board 	shall
have 	the 	following 	authority1:
To delegate 	its powers 	to any member of 	the
board or 	to any person appointed by the 	board
for the performance of 	its 	functions, 	except
that no 	fewer 	than 	two board members 	may
participate 	in the 	determination of 	any
ruling or decision on the merits 	of 	any
dispute 	coming before 	it, 	and except that 	a
decision to refuse 	to 	issue 	a 	complaint 	shall
require 	the approval 	of 	two board members.
(Emphasis 	added.)
While 	perhaps 	not 	artfully drafted, 	the underlined portion
of 	the 	above 	provision 	is 	clearly 	set 	forth as 	a 	limitation on
the Board's 	authority to delegate. 	As 	such, 	it may not be read
to 	simply require 	that 	at 	least 	two members 	sign 	every decision
issued by the 	Board. 	When viewed in 	context, 	the provision
appears 	to require 	that 	at 	least 	two 	Board members 	decide 	the
merits 	of 	any dispute 	coming before 	the 	Board. 	Such a 	reading of
the provision, 	which is 	the one 	I 	find the most reasonable,
directly 	conflicts 	with the 	vesting of 	discretion 	in 	the 	regional
director that 	is 	inherent 	in the 	application of 	an abuse 	of
discretion 	standard of review. 	Accordingly, 	I 	believe 	such a
standard 	of 	review cannot 	be 	applied 	to 	proposed decisions 	of 	the
Board's 	agents or employees.
1The Educational 	Employment Relations Act 	(EERA) 	contains 	an
identical provision at 	section 3541.3(k). 	The Ralph C. 	Dills Act
incorporates 	EERA 	section 	3541.3 	by reference 	(see 	section
3513(g)).
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To be 	fair to my colleagues, 	I must mention that there 	is
Board precedent 	for 	applying 	an 	abuse 	of 	discretion 	standard 	in
reviewing 	impasse 	determinations 	and 	"blocking 	charge" 	cases
(which 	involve 	stays 	of 	elections 	pending resolution of 	unfair
practice charges). 	However, 	that precedent is, 	at best,
inconsistent. 	In three 	early 	cases 	involving review of 	impasse
determinations, 	the Board applied, 	without comment, 	the abuse of
discretion 	standard. 	(Ramona Unified School 	District) 	(1979)
PERB Order No. 	Ad-73; 	Oakdale Union Elementary School 	District
(1978) 	PERB Order No. 	Ad-46; 	Redwood City School District 	(1978)
PERB Order No. 	Ad-26). 	However, 	the abuse of discretion standard
has not been applied since to impasse 	cases. 	In fact, 	more
recent 	cases 	appear 	to have 	overruled the 	earlier 	cases 	sub
silentio, 	for the 	analysis 	therein reflects 	a de novo 	standard of
review. 	(Regents 	of the 	University of California 	(1982) 	PERB
Order Nos. 	Ad-129-H and Ad-129a-H; 	Marin Community College
District 	(1982) 	PERB Order No. 	Ad-126; 	Mt. 	San Antonio Community
College District 	(1981) 	PERB Order No. Ad-124).
The 	propriety 	of 	the 	abuse 	of 	discretion 	standard 	of 	review
has 	been expressly endorsed only once by the 	Board, 	in a
"blocking charge" 	case. 	(Jefferson School 	District 	(1980) 	PERB
Order No. 	Ad-82.) 	That case drew a vociferous dissent 	from 	the
then chairperson of, the Board. 	In three 	later 	"blocking charge"
cases, 	the 	Board 	(again without 	expressly overruling the 	earlier
case) 	applied a lesser 	standard, 	stating that 	it would defer to
the 	conclusions 	of 	the 	regional 	director 	if 	they were 	amply
supported by the 	record. 	(Grenada 	Elementary 	School 	District
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(1984) 	PERB Decision No. 	387; 	Regents of the University of
California 	(1984) 	PERB Decision No. 	381-H; 	Pleasant Valley-
Elementary School District 	(1984) 	PERB Decision No. 	380). 	The
abuse 	of discretion 	standard has 	been mentioned 	only once 	since,
in 	State 	of 	California 	(Department of 	Personnel 	Administration)
(1985) 	PERB Order No. 	Ad-151-S, 	wherein the Board also cited the
standard articulated in Regents 	No. 	381-H 	and Pleasant Valley
No. 380.
In 	sum, 	the history of 	this 	Board's 	application of 	an abuse
of discretion standard of review is, 	at best, 	uneven. 	If this
standard is to continue to be applied, 	I 	believe 	it is 	time 	for
the 	Board to not only provide 	legal 	authority 	for its 	use, 	but
also 	to 	articulate 	in what 	types 	of 	cases 	it will 	be 	applied and
why. 	The practice of applying it only to regional 	directors'
decisions 	involving 	impasse 	determinations 	and 	"blocking 	charges"
(and not even 	in all 	such cases) 	and not to other types 	of
decisions has never been explained. 	I, 	for one, 	question the
wisdom 	of 	adopting 	several 	different 	standards 	of 	review 	for 	the
various 	types 	of 	cases decided by Board agents, 	all 	of whom have
the 	same 	apparent authority to 	issue decisions 	subject 	to 	the
Board's 	review. 	I 	would 	suggest we 	simply apply 	the 	same 	de 	novo
standard we use 	in unfair practice 	cases, 	while 	recognizing 	that
certain types 	of determinations 	(for example, 	credibility
determinations) 	are 	entitled to deference. 	(See 	Santa Clara
Unified School 	District 	(1979) 	PERB Decision No. 	104.)
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