Trustees of the California State University (Stanislaus) (PERB 1659H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE EMPLOYEES TRADES COUNCIL
UNITED,
Charging Party, 	Case No. LA-CE-666-H
V . 	PERB Decision No. 1659-H
TRUSTEES OF THE CALIFORNIA STATE July 13, 2004
UNIVERSITY (STANISLAUS),
Respondent.
Appearances: Law Offices of James Eggleston by M. Jane Lawhon, Attorney, for State
Employees Trades Council United; Elisabeth Sheh Walter, University Counsel, for Trustees of
the California State University (Stanislaus).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by State Employees Trades Council United (SETC)' of a Board
agent's partial dismissal (attached). The charge alleged that the Trustees of the California
State University (Stanislaus) (CSU) violated the Higher Education Employer-Employee
Relations Act (HEERA) when it unilaterally laid off Unit 6 employees at the CSU Stockton
Center without meeting and conferring with SETC, by transferring bargaining unit work from
Unit 6 to the newly created Stockton Center Site Authority, by failing to provide information
relevant to representation by its members, and by discriminating against Unit 6 members.
The charge was originally filed by the State Employees Trades Council. In the
amended charge, SETC changed its name to State Employees Trades Council United.
HEERA is codified at Government Code section 3560, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE EMPLOYEES TRADES COUNCIL
UNITED,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (STANISLAUS),
Respondent.
Case No. LA-CE-666-H
PERB Decision No.
	1659-H
July
	13,
	2004
Appearances: 	Law Offices
of
James Eggleston by M. Jane Lawhon, Attorney, for State
Employees Trades Council United; Elisabeth Sheh Walter, University Counsel, for Trustees
of
the California State University (Stanislaus).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by State Employees Trades Council United (SETC)1
of
a Board
agent's partial dismissal (attached). The charge alleged that the Trustees
of
the California
State University (Stanislaus) (CSU) violated the Higher Education Employer-Employee
Relations Act (HEERA)2 when it unilaterally laid off Unit 6 employees at the CSU Stockton
Center without meeting and conferring with SETC, by transferring bargaining unit work from
Unit 6 to the newly created Stockton Center Site Authority, by failing to provide information
relevant to representation by its members, and by discriminating against Unit 6 members.
1The charge was originally filed by the State Employees Trades Council. In the
amended charge, SETC changed its name to State Employees Trades Council United.
2HEERA is codified at Government Code section 3560, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

SETC alleged that this conduct constituted a violation of HEERA sections 3570 and 3571(a),
(b), (c) and (d).
After review of the record, including the unfair practice charge, amended charge,
CSU's response, the Board agent's warning and dismissal letters, SETC's appeal and CSU's
response to the appeal , the Board affirms the Board agent's partial dismissal and partial
placement in abeyance and deferral of the charge to arbitration, consistent with the discussion
below.
BACKGROUND
The charge alleges that CSU Stanislaus (CSUS) has a satellite facility in Stockton
known as the CSU Stockton Center. In July 2000, the parties executed a settlement agreement
resolving a grievance filed by SETC on behalf of Unit 6 employees.
The settlement agreement provides, in pertinent part:
2. The University agrees to hire temporary Unit 6 personnel to
operate and maintain CSU-Stanislaus, Stockton site only, for the
remaining period that it has operating authority for the entire site
or until the central plant is eliminated, whichever is sooner.
Temporary employees shall be hired under this agreement.
6. The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope of
operating authority over that portion of the Stockton site devoted
to CSU's occupancy. The SETC Agreement shall apply to the
performance of work within the scope of Unit 6 work under the
Agreement with respect to all such facilities that are within the
scope of CSU's reduced occupancy for the Stockton site.
7. The parties agree that the obligations of this agreement apply
to CSU and not to any other person or entity that may assume
some or all of the operating authority for some portion or all of
the Stockton site independent of any CSU operating authority.
'Pursuant to PERB Regulation 32136, the Board hereby accepts CSU's late-filed
response as timely filed. (PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et
seq.)
2
SETC alleged that this conduct constituted a violation
ofHEERA
sections 3570 and 3571(a),
(b), (c) and (d).
After review
of
the record, including the unfair practice charge, amended charge,
CSU's response, the Board agent's warning and dismissal letters, SETC's appeal and
CSU's
response to the appeai3, the Board affirms the Board agent's partial dismissal and partial
placement in abeyance and deferral
of
the charge to arbitration, consistent with the discussion
below.
BACKGROUND
The charge alleges that CSU Stanislaus (CSUS) has a satellite facility in Stockton
known as the CSU Stockton Center. In July 2000, the parties executed a settlement agreement
resolving a grievance filed by SETC on behalf
of
Unit 6 employees.
The settlement agreement provides, in pertinent part:
2.	
The University agrees to hire temporary Unit 6 personnel to
operate and maintain CSU-Stanislaus, Stockton site only, for the
remaining period that it has operating authority for the entire site
or until the central plant is eliminated, whichever is sooner.
Temporary employees shall be hired under this agreement.
6.	
The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope
of
operating authority over that portion
of
the Stockton site devoted
to CSU's occupancy. The SETC Agreement shall apply to the
performance
of
work within the scope
of
Unit 6 work under the
Agreement with respect to all such facilities that are within the
scope
of
CSU's reduced occupancy for the Stockton site.
7. The parties agree that the obligations
of
this agreement apply
to CSU and not to any other person or entity that may assume
some or all
of
the operating authority for some portion or all
of
the Stockton site independent of any CSU operating authority.
3Pursuant to PERB Regulation 32136, the Board hereby accepts CSU's late-filed
response as timely filed. 	(PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et
seq.)
2

Under the settlement agreement, CSU hired approximately ten temporary Unit 6
employees to work at the CSU Stockton Center to perform Unit 6 work. Each employee was
provided a letter from the CSU Human Resources Director in September or October 2001 that
notified each individual of his/her employment as an operating engineer. Each letter showed
an expiration date for the appointment between February 28, 2002 and June 30, 2002.
In May 2001, the CSU Board of Trustees and the City of Stockton (City) established a
joint powers authority (Authority) to oversee redevelopment of the Stockton site. The joint
powers agreement provided, in pertinent part:
2. Site Authority Created. There is hereby created a public entity
to be known as the 'Stockton Center Site Authority.' The Site
Authority is formed by this Agreement pursuant to the provisions
of articles 1-4, chapter 5, division 7, title 1 of the Government
Code of the State of California. The Site Authority shall be a
public entity separate from the Parties hereto and shall administer
this Agreement.
10. Governing Body of the Site Authority.
a. The business of the Site Authority shall be conducted by a
Board of Directors consisting of seven (7) persons. All voting
power of the Site Authority shall reside in the Board of Directors.
The Board shall be comprised as follows: three (3) Stockton City
Councilmembers appointed by the City, three (3) members
appointed by the Chancellor of the California State University,
and one (1) member jointly appointed by the Mayor of the City of
Stockton and Chancellor of the California State University.
The Board of Directors was selected pursuant to the joint powers agreement. CSU
Assistant Vice Chancellor, Patrick Drohan (Drohan), was appointed as the Executive Director
of the Authority, CSU General Counsel, Elisabeth Sheh Walter, as the attorney, and the City
clerk, as the Authority's secretary.
SETC alleges that it was unaware of the establishment of the Authority until October
2001 when rumors began to circulate of the possibility of layoffs of Unit 6 employees. In
3
Under the settlement agreement, CSU hired approximately ten temporary Unit 6
employees to work at the CSU Stockton Center to perform Unit 6 work. Each employee was
provided a letter from the CSU Human Resources Director in September or October 2001 that
notified each individual of his/her employment as an operating engineer. Each letter showed
an expiration date for the appointment between February 28, 2002 and June 30, 2002.
In May 2001, the CSU Board of Trustees and the City of Stockton (City) established a
joint powers authority (Authority) to oversee redevelopment of the Stockton site. The joint
powers agreement provided, in pertinent part:
2. Site Authority Created. There is hereby created a public entity
to be known as the 'Stockton Center Site Authority.' The Site
Authority is formed by this Agreement pursuant to the provisions
of articles 1-4, chapter 5, division 7, title 1 of the Government
Code of the State of California. The Site Authority shall be a
public entity separate from the Parties hereto and shall administer
this Agreement.
10. Governing Body of the Site Authority.
a. The business of the Site Authority shall be conducted by a
Board of Directors consisting of seven (7) persons. All voting
power of the Site Authority shall reside in the Board of Directors.
The Board shall be comprised as follows: three (3) Stockton City
Councilmembers appointed by the City, three (3) members
appointed by the Chancellor of the California State University,
and one (1) member jointly appointed by the Mayor of the City of
Stockton and Chancellor of the California State University.
The Board of Directors was selected pursuant to the joint powers agreement. 	CSU
Assistant Vice Chancellor, Patrick Drohan (Drohan), was appointed as the Executive Director
of the Authority, CSU General Counsel, Elisabeth Sheh Walter, as the attorney, and the City
clerk, as the Authority's secretary.
SETC alleges that it was unaware of the establishment of the Authority until October
2001 when rumors began to circulate of the possibility of layoffs of Unit 6 employees. 	In
3

October and November 2001, SETC Representative Greg Starr (Starr) discussed the layoffs
with CSU representatives. On December 3, 2001, Starr sent to CSU Human Resources
Director, Mary Kobayashi-Lee (Kobayashi-Lee) a memorandum requesting that CSU meet
with SETC representatives to discuss the Stockton site Unit 6 employees. On December 14,
2001, the parties met. During this meeting, CSU presented SETC with copies of notices that
the appointment of eight Unit 6 employees would end January 15, 2002. SETC characterizes
these notices as layoff notices. The notices stated, in part:
This letter is official notification that your temporary
appointment as a Facilities Maintenance Mechanic will be ending
on January 15, 2002.
SETC requested that CSU delay the layoffs and requested bargaining over the effect of the
layoffs.
On December 20, SETC filed a grievance on behalf of the eight Unit 6 employees. The
grievance alleges that CSU violated, among others, sections 3, 5, 6, 7, 8, 9 of the July 2000
settlement agreement. In addition, the grievance specifically alleges that CSU violated Article
4 of the collective bargaining agreement (CBA) regarding contracting out unit work. The
grievance also alleges that CSU violated several other articles of the CBA but does not explain
how these articles were violated.
On December 21, 2001, Kobayashi-Lee sent SETC a letter that stated that the
appointments of an undetermined number of Unit 6 employees would be extended through
April 2002. Two Unit 6 employees continued to work for CSU until April 2002.
On February 4, 2002, the parties met to discuss the grievance which had proceeded to
Level III but did not achieve resolution. SETC has requested information from CSU regarding
these grievances on numerous occasions.
4
October and November 2001, SETC Representative Greg Starr (Starr) discussed the layoffs
with CSU representatives. 	On December 3, 2001, Starr sent to CSU Human Resources
Director, Mary Kobayashi-Lee (Kobayashi-Lee) a memorandum requesting that CSU meet
with SETC representatives to discuss the Stockton site Unit 6 employees. On December 14,
2001, the parties met. During this meeting, CSU presented SETC with copies
of
notices that
the appointment
of
eight Unit 6 employees would end January 15, 2002. SETC characterizes
these notices as layoff notices. The notices stated, in part:
This letter is official notification that your temporary
appointment as a Facilities Maintenance Mechanic will be ending
on January 15, 2002.
SETC requested that CSU delay the layoffs and requested bargaining over the effect
of
the
layoffs.
On December 20, SETC filed a grievance on behalf
of
the eight Unit 6 employees. The
grievance alleges that CSU violated, among others, sections 3,
5,
6, 7, 8, 9
of
the July 2000
settlement agreement. In addition, the grievance specifically alleges that CSU violated Article
4
of
the collective bargaining agreement (CBA) regarding contracting out unit work. The
grievance also alleges that CSU violated several other articles
of
the CBA but does not explain
how these articles were violated.
On December 21, 2001, Kobayashi-Lee sent SETC a letter that stated that the
appointments
of
an undetermined number
of
Unit 6 employees would be extended through
April 2002. 	Two Unit 6 employees continued to work for CSU until April 2002.
On February 4, 2002, the parties met to discuss the grievance which had proceeded to
Level III but did not achieve resolution. SETC has requested information from CSU regarding
these grievances on numerous occasions.
4

Since the Unit 6 employees' temporary assignments ended, two of the employees have
gone to work for the Authority performing the same duties they had performed when employed
by CSU.
Information Requests
CBA sections 7.11, 9.20, 13.1 and 13.2 allow SETC and/or the employee to obtain
information from CSU for purposes of bargaining, grievances and personnel matters,
respectively.
From October 2001 through May 2002, SETC requested information from CSU
regarding, in pertinent part, the layoffs of the Unit 6 employees, the relationship between CSU
and the Authority, as well as the decision by CSU to retain two Unit 6 employees until April
2002. While CSU provided SETC with some of the requested information, CSU
Representative Kobayashi-Lee informed SETC that because CSU and the Authority had a
landlord-tenant relationship, much of the information should be requested directly from the
Authority, as the landlord.
On December 20, 2001, Starr presented CSU with signed employee authorizations to
inspect personnel files for seven Unit 6 employees. On February 8, 2002, Kobayashi-Lee
refused to allow Starr access to the personnel files, despite the written authorizations.
SETC asserts that CSU violated HEERA by creating a "cover" for itself through the
Authority and then abrogating the CBA and the July 2000 settlement agreement, particularly
section 6. SETC contends that CSU delayed meetings and providing information to SETC so
as to enable the Authority to approve and implement leases. Several leases are provided as
attachments to the amended charge and show that CSU is the property owner who has leased
the property to the Authority and the Authority has subleased a portion of the property back to
CSU. Grupe Company (Grupe) manages the property. CSU has provided a list of CSU top
Since the Unit 6 employees' temporary assignments ended, two
of
the employees have
gone to work for the Authority performing the same duties they had performed when employed
by CSU.
Information Requests
CBA sections 7.11, 9.20, 13.1 and 13.2 allow SETC and/or the employee to obtain
information from CSU for purposes
of
bargaining, grievances and personnel matters,
respectively.
From October 2001 through May 2002, SETC requested information from CSU
regarding, in pertinent part, the layoffs
of
the Unit 6 employees, the relationship between CSU
and the Authority, as well as the decision by CSU to retain two Unit 6 employees until April
2002. While CSU provided SETC with some
of
the requested information, CSU
Representative Kobayashi-Lee informed SETC that because CSU and the Authority had a
landlord-tenant relationship, much
of
the information should be requested directly from the
Authority, as the landlord.
On December 20, 2001, Starr presented CSU with signed employee authorizations to
inspect personnel files for seven Unit 6 employees. On February 8, 2002, Kobayashi-Lee
refused to allow Starr access to the personnel files, despite the written authorizations.
SETC asserts that CSU violated HEERA by creating a "cover" for itself through the
Authority and then abrogating the CBA and the July 2000 settlement agreement, particularly
section 6. SETC contends that CSU delayed meetings and providing information to SETC so
as to enable the Authority to approve and implement leases. Several leases are provided as
attachments to the amended charge and show that CSU is the property owner who has leased
the property to the Authority and the Authority has subleased a portion of the property back to
CSU. Grupe Company (Grupe) manages the property. CSU has provided a list of CSU top
5

level staff and CSU trustees who also hold positions with the Authority. SETC further
indicates that CSU exercises primary business, funding and legal control over the Authority.
For example, CSU controls the State funds for the Authority and Authority business is
conducted out of the CSU chancellor's office in Long Beach.
SETC generally asserts that through the Authority, CSU has violated the CBA in the
areas of union rights, employee rights, bulletin boards, change in work areas, refusal to hire
employees at the CSU Stanislaus - Turlock campus, however SETC does not identify any
specifics of these violations.
SETC also alleges that it has requested to bargain Unit 6 work pursuant to the July
2000 settlement agreement and the CBA and provides a list of 24 items that it attempted to
bargain. The request includes, among other items, the unit work to be performed at the
Stockton site, break room, rest rooms, clean-up, movement of Unit 6 employees from the
Central Plan shops to the Acacia Building, distribution of SETC literature, hours of work and
assignments, use of maintenance equipment, appointment letters, personnel files, pay
increases, and work performed by Grupe after January 2002.
BOARD AGENT DISMISSAL
SETC argues that the Authority is not independent and its actions are attributable to
CSU. But as a threshold matter, the Board agent noted that SETC must state facts
demonstrating that the two entities are either a "joint" or "single" employer and that SETC did
not provide such evidence. Instead the Authority was established under the applicable
Government Code provisions for a joint powers authority. Although some of the officers and
Board of Directors of the Authority are CSU employees, there is no evidence that the actions
of the Authority are in reality the actions of CSU.
6
level staff and CSU trustees who also hold positions with the Authority. 	SETC further
indicates that CSU exercises primary business, funding and legal control over the Authority.
For example, CSU controls the State funds for the Authority and Authority business is
conducted out
of
the CSU chancellor's office in Long Beach.
SETC generally asserts that through the Authority, CSU has violated the CBA in the
areas
of
union rights, employee rights, bulletin boards, change in work areas, refusal to hire
employees at the CSU Stanislaus - Turlock campus, however SETC does not identify any
specifics
of
these violations.
SETC also alleges that it has requested to bargain Unit 6 work pursuant to the July
2000 settlement agreement and the CBA and provides a list
of
24 items that it attempted to
bargain. The request includes, among other items, the unit work to be performed at the
Stockton site, break room, rest rooms, clean-up, movement
of
Unit 6 employees from the
Central Plan shops to the Acacia Building, distribution
of
SETC literature, hours
of
work and
assignments, use
of
maintenance equipment, appointment letters, personnel files, pay
increases, and work performed by Grupe after January 2002.
BOARD AGENT DISMISSAL
SETC argues that the Authority is not independent and its actions are attributable to
CSU. But as a threshold matter, the Board agent noted that SETC must state facts
demonstrating that the two entities are either a 'joint" or "single" employer and that SETC did
not provide such evidence. Instead the Authority was established under the applicable
Government Code provisions for a joint powers authority. Although some
of
the officers and
Board of Directors of the Authority are CSU employees, there is no evidence that the actions
of the Authority are in reality the actions of CSU.
6

The Board agent further found no unilateral change with regard to the layoffs of Unit 6
employees. Although the CBA directs CSU to negotiate the impacts of layoffs, as the Unit 6
employees are temporary employees, CBA Article 29.5 provides that "[njon-reappointment of
a temporary employee does not constitute layoff." Because these employees were temporary,
their termination did not constitute layoffs. Therefore, the Board agent concluded that there
was no change in policy about which to meet and confer and thus no unlawful unilateral
change.
The Board agent found that there was no transfer of bargaining unit work because two
employees were dismissed by CSU and subsequently hired by the Authority. Even if the facts
established a transfer of bargaining unit work, CBA Article 4 leaves the decision to contract
out work as "the prerogative of the Employer," without needing to meet and confer with
SETC.
Further, the Board agent noted that even if SETC is able to establish that CSU made
unlawful unilateral changes, such allegations are deferrable to binding arbitration. (PERB Reg.
32620(b)(6).) In this case, the allegations meet the standards articulated in Collyer Insulated
Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer), including the fact that the parties
have operated within a stable collective bargaining relationship, CSU has indicated its
willingness to proceed to arbitration and waive procedural defenses, and the issues fall within
CBA Articles 4 and 29.
The Board agent also found that the information requests are deferrable to arbitration
under the above analysis. These requests fall within Articles 9 and 13 of the CBA.
The Board agent further found that SETC has not presented facts supporting its
allegation of retaliation/discrimination against Unit 6 employees and so has failed to state a
prima facie case. Even if such facts were provided, CBA Article 7.17 provides that:
7
The Board agent further found no unilateral change with regard to the layoffs
of
Unit 6
employees. Although the CBA directs CSU to negotiate the impacts
of
layoffs, as the Unit 6
employees are temporary employees, CBA Article 29.5 provides that "[n]on-reappointment
of
a temporary employee does not constitute layoff." Because these employees were temporary,
their termination did not constitute layoffs. Therefore, the Board agent concluded that there
was no change in policy about which to meet and confer and thus no unlawful unilateral
change.
The Board agent found that there was no transfer
of
bargaining unit work because two
employees were dismissed by CSU and subsequently hired by the Authority. Even
if
the facts
established a transfer
of
bargaining unit work, CBA Article 4 leaves the decision to contract
out work as "the prerogative
of
the Employer," without needing to meet and confer with
SETC.
Further, the Board agent noted that even
if
SETC is able to establish that CSU made
unlawful unilateral changes, such allegations are deferrable to binding arbitration. 	(PERB Reg.
32620(b )(6).) In this case, the allegations meet the standards articulated in Collyer Insulated
Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer), including the fact that the parties
have operated within a stable collective bargaining relationship, CSU has indicated its
willingness to proceed to arbitration and waive procedural defenses, and the issues fall within
CBA Articles 4 and 29.
The Board agent also found that the information requests are deferrable to arbitration
under the above analysis. These requests fall within Articles 9 and 13
of
the CBA.
The Board agent further found that SETC has not presented facts supporting its
allegation of retaliation/discrimination against Unit 6 employees and so has failed to state a
prima facie case. Even if such facts were provided, CBA Article 7.17 provides that:
7

An employee shall not suffer reprisals for participating in union
activities.
Therefore, a retaliation discrimination charge is also subject to binding arbitration under the
CBA.
Finally, the Board agent found that SETC failed to state a prima facie case of bad faith
bargaining. SETC failed to provide facts showing that CSU engaged in any of the indicia of
surface bargaining.
DISCUSSION
In its appeal, SETC does not dispute the Board agent's dismissal of the bad faith
bargaining or discrimination allegations, and does not address the issue of deferral to
arbitration for the remaining charges. For the reasons stated below, we find that the charge
should be deferred to arbitration.
CBA Article 9 provides for final and binding arbitration of grievances. Grievances are
defined in section 9.2 as a "written allegation by an employee that there has been a violation,
misapplication, or misinterpretation of a specific term(s) of this Agreement." Article 9 does
not limit the issues that can be grieved under the CBA. SETC has alleged that CSU has
violated the CBA by laying off temporary Unit 6 employees from the Stockton site, contracting
out bargaining unit work, and refusing to provide information, all in violation of the CBA. The
layoff of the temporary Unit 6 employees and the contracting out of bargaining unit work is
also alleged to violate the July 2000 settlement agreement.
PERB Regulation 32620(b)(6) requires the Board agent processing the charge to:
Place the charge in abeyance if the dispute arises under MMBA,
HEERA or TEERA and is subject to final and binding arbitration
8
An employee shall not suffer reprisals for participating in union
activities.
Therefore, a retaliation discrimination charge is also subject to binding arbitration under the
CBA.
Finally, the Board agent found that SETC failed to state a prima facie case
of
bad faith
bargaining. 	SETC failed to provide facts showing that CSU engaged in any
of
the indicia
of
surface bargaining.
DISCUSSION
In its appeal, SETC does not dispute the Board agent's dismissal
of
the bad faith
bargaining or discrimination allegations, and does not address the issue
of
deferral to
arbitration for the remaining charges. For the reasons stated below, we find that the charge
should be deferred to arbitration.
CBA Article 9 provides for final and binding arbitration
of
grievances. 	Grievances are
defined in section 9.2 as a "written allegation by an employee that there has been a violation,
misapplication, or misinterpretation
of
a specific term(s)
of
this Agreement." Article 9 does
not limit the issues that can be grieved under the CBA. 	SETC has alleged that CSU has
violated the CBA by laying off temporary Unit 6 employees from the Stockton site, contracting
out bargaining unit work, and refusing to provide information, all in violation
of
the CBA. The
layoff
of
the temporary Unit 6 employees and the contracting out
of
bargaining unit work is
also alleged to violate the July 2000 settlement agreement.
PERB Regulation 32620(b )(6) requires the Board agent processing the charge to:
Place the charge in abeyance if the dispute arises under MMBA,
HEERA or TEERA and is subject to final and binding arbitration
8

pursuant to a collective bargaining agreement, and dismiss the
charge at the conclusion of the arbitration process unless the
charging party demonstrates that the settlement or arbitration
award is repugnant to the purposes of MMBA, HEERA or
TEERA as provided in section 32661.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a (Dry Creek),
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 award situations. [Fn. omitted.] 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 private
sector. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d
608.)
Although Dry Creek was decided under the Educational Employment Relations Act (EERA) it
has been applied to the HEERA. (Regents of the University of California (1983) PERB Order
No. Ad-139-H; California State University (1984) PERB Decision No. 392-H.)
In Collyer 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.
See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
"EERA is codified at Government Code section 3540, et seq.
9
pursuant to a collective bargaining agreement, and dismiss the
charge at the conclusion
of
the arbitration process unless the
charging party demonstrates that the settlement or arbitration
award is repugnant to the purposes
ofMMBA,
HEERA or
TEERA as provided in section 32661.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a (Dry Creek), 5
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 award situations. [Fn. omitted.] 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 private
sector. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d
608.)
Although Dry Creek was decided under the Educational Employment Relations Act (EERA)6 it
has been applied to the HEERA. (Regents
of
the University
of
California (1983) PERB Order
No. Ad-139-H; California State University (1984) PERB Decision No. 392-H.)
In Collyer 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.
5See also State
of
California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
6EERA is codified at Government Code section 3540, et seq.
9

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, Elisabeth Sheh Walter, dated
September 5, 2002, CSU has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge regarding layoffs of Unit 6
employees, contracting out bargaining unit work, and refusal to provide information directly
involves, at the very minimum, an interpretation of Articles 4, 7, 9, 13 and 29 of the CBA'.
CBA Article 4, Contracting Out, provides:
4.1 When determining whether or not to contract out work, the
Employer shall make every reasonable effort to perform normal
bargaining unit work in-house, within the limitations and
requirements imposed by law. The decision to contract out work
is the prerogative of the Employer.
4.2 The Union shall be notified of contracts pertaining to normal
Unit 6 work. Circumstances permitting, such notifications shall
be prior to the start of such contracted work.
CBA Article 7, Union Rights, provides, in pertinent part:
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 develop or compile any
information or data in a form not already compiled.
CBA section 9.20 provides:
In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount of time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
10
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, Elisabeth Sheh Walter, dated
September 5, 2002, CSU has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge regarding layoffs
of
Unit 6
employees, contracting out bargaining unit work, and refusal to provide information directly
involves, at the very minimum, an interpretation
of
Articles 4, 7, 9,
13
and 29
of
the
CBA
7•
7CBA Article 4,.Contracting Out, provides:
4.1 	When determining whether or not to contract out work, the
Employer shall make every reasonable effort to perform normal
bargaining unit work in-house, within the limitations and
requirements imposed by law. The decision to contract out work
is the prerogative
of
the Employer.
4.2 The Union shall be notified
of
contracts pertaining to normal
Unit 6 work. Circumstances permitting, such notifications shall
be prior to the start
of
such contracted work.
CBA Article 7, Union Rights, provides, in pertinent part:
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 develop or compile any
information or data in a form not already compiled.
CBA section 9.20 provides:
In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose
of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount of time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
10

Accordingly, this charge must be deferred to arbitration and will be placed in abeyance
until such time as the arbitration process has concluded. Following the arbitration of this
reasonable amount of time after the request for the information is
made.
CBA section 13.1(b) provides:
An employee may request a copy of any written materials in the
personnel file and a copy will be provided in a timely manner.
CBA section 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies of
materials in the file.
CBA Article 29, Layoff, provides, in pertinent part:
29.2 When the President determines that a layoff is necessary on
a campus because of a lack of work or a lack of funds, the
following procedures shall apply.
29.3 When the CSU determines that there may be a need for
implementation of any procedures outlined in this Article, 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.
29.5 Non-reappointment of a temporary employee does not
constitute layoff.
Interestingly, CBA section 10.4 provides, in pertinent part, that:
Temporary appointments may provide for separation of the
employee prior to the expiration date of the appointment and shall
specify that any employment in temporary status shall not be
credited as a period of probationary service as defined in this
Agreement. Such a separation shall not be subject to Article 29,
Layoff, or Article 9, Grievance Procedure.
However, section 5 of the July 2000 settlement agreement expressly waives
section 10.4. It is thus up to an arbitrator to interpret the interplay of these
two provisions.
11
Accordingly, this charge must be deferred to arbitration and will be placed in abeyance
until such time as the arbitration process has concluded. Following the arbitration
of
this
reasonable amount
of
time after the request for the information is
made.
CBA section
13
.1
(b) provides:
An employee
may
request a copy
of
any written materials in the
personnel file and a copy will be provided in a timely manner.
CBA section 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies
of
materials in the file.
CBA Article 29, Layoff, provides, in pertinent part:
29 .2 When the President determines that a layoff is necessary on
a campus because
of
a lack
of
work or a lack
of
funds, the
following procedures shall apply.
29.3 When the CSU detennines that there may be a need for
implementation
of
any procedures outlined in this Article, 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.
29.5 Non-reappointment
of
a temporary employee does not
constitute layoff.
Interestingly, CBA section 10.4 provides, in pertinent part, that:
Temporary appointments may provide for separation
of
the
employee prior to the expiration date
of
the appointment and shall
specify that any employment in temporary status shall not be
credited as a period
of
probationary service as defined in this
Agreement. Such a separation shall not be subject to Article 29,
Layoff, or Article 9, Grievance Procedure.
However, section 5
of
the July 2000 settlement agreement expressly waives
section 10.4. It is thus up to an arbitrator to interpret the interplay
of
these
two provisions.
11

matter, the charge will be dismissed unless SETC seeks a repugnanty review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Reg. 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek.)
ORDER
The unfair practice charge in Case No. LA-CE-666-H is hereby IN PART DISMISSED,
AND IN PART, PLACED IN ABEYANCE AND DEFERRED TO ARBITRATION.
Chairman Duncan and Member Neima joined in this Decision.
12
matter, the charge will be dismissed unless SETC seeks a repugnancy review by PERB
of
the
arbitrator's decision under the Dry Creek criteria. (See Reg. 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek.)
ORDER
The unfair practice charge in Case No. LA-CE-666-H is hereby IN PART DISMISSED,
AND IN PART, PLACED IN ABEYANCE AND DEFERRED TO ARBITRATION.
Chairman Duncan and Member Neimajoined in this Decision.
12

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
October 17, 2002
Patrick Hallahan, Labor Consultant
9647 Folsom Blvd., Suite 307
Sacramento, CA 95827-1202
Re: 	State Employees Trades Council v. Trustees of the California State University
(Stanislaus)
Unfair Practice Charge No. LA-CE-666-H
PARTIAL DISMISSAL
PARTIAL ABEYANCE AND DEFERRAL TO ARBITRATION
Dear Mr. Hallahan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2002. The State Employees Trades Council (SETC)
alleges that the Trustees of the California State University (Stanislaus) violated the Higher
Education Employer-Employee Relations Act' by making unlawful unilateral changes, by
failing to provide information relevant to the representation of its members and by
discriminating against Unit 6 members.
I indicated in the attached letter dated September 9, 2002, that the allegation that the
University violated HEERA by failing to provide SETC with information necessary and
relevant to the discharge of its duty was subject to deferral to arbitration. You were advised
that if there were any factual inaccuracies in the letter or additional facts which would
demonstrate that this allegation should not be deferred, the charge should be amended. You
were further advised that unless the allegation was amended or withdrawn prior to September
16, 2002, it would be placed in abeyance and deferred to arbitration.
Also in the attached September 9, 2002 letter, I explained the remaining allegations contained
in the charge did not state a prima facie violation of HEERA. 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. Further you were advised that unless
you amended these allegations to state a prima facie case or withdrew them prior to September
16, 2002, the allegations would be dismissed.
You were unable to amend the charge by September 16, 2002. After you and Carol Edgerton.
of Attorney James Eggleston's office requested three extensions of time by which to amend
this charge, the amended charge was filed on October 15, 2002.
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
October 17, 2002
Patrick Hallahan, Labor Consultant
9647 Folsom Blvd., Suite 307
Sacramento, CA 95827-1202
(
============
Re: 	State Employees Trades Council
v.
Trustees
of
the California State University
(Stanislaus)
Unfair Practice Charge No. LA-CE-666-H
PARTIAL DISMISSAL
PARTIAL ABEYANCE AND DEFERRAL TO ARBITRATION
Dear Mr. Hallahan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2002. The State Employees Trades Council (SETC)
alleges that the Trustees
of
the California State University (Stanislaus) violated the Higher
Education Employer-Employee Relations Act1 by making unlawful unilateral changes, by
failing to provide information relevant to the representation
of
its members and by
discriminating against Unit 6 members.
I indicated in the attached letter dated September 9, 2002, that the allegation that the
University violated HEERA by failing to provide SETC with information necessary and
relevant to the discharge
of
its duty was subject to deferral to arbitration. You were advised
that
if
there were any factual inaccuracies in the letter or additional facts which would
demonstrate that this allegation should not be deferred, the charge should be amended. 	You
were further advised that unless the allegation was amended or withdrawn prior to September
16, 2002, it would be placed in abeyance and deferred to arbitration.
·
Also in the attached September 9, 2002 letter, I explained the remaining allegations contained
in the charge did not state a prima facie violation
of
HEERA. 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. Further you were advised that unless
you amended these allegations to state a prima facie case or withdrew them prior to September
16, 2002, the allegations would be dismissed.
You were unable to amend the charge by September 16, 2002. After you and Carol Edgerton
of Attorney James Eggleston's office requested three extensions of time by which to amend
this charge, the amended charge was filed on October 15, 2002.
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-666-H
October 17, 2002
Page 2
CSU Stanislaus has a satellite facility in Stockton, known as the CSU Stockton Center. In July
2000 SETC and CSU signed a settlement agreement in resolution of a grievance filed by SETC
on behalf of Unit 6 employees at the CSU Stockton Center. In accordance with this settlement
agreement, CSU hired approximately ten temporary Unit 6 employees at the CSU Stockton
Center. CSU terminated the appointment of most of those temporary employees as of January
2002. Two Unit 6 employees continued to work for CSU until April 2002. In addition, two of
the employees have gone to work for the Stockton Site Authority doing the same maintenance
work done when they were employed by CSU.
In September 2001 the CSU Board of Trustees and the City of Stockton established a Joint
Powers/Stockton Site Authority
In December 2001, SETC filed a grievance on behalf of the eight Unit 6 employees. The
grievance alleges in part that the University violated paragraphs 3, 5, 6, 7, 8, 9 and others of
the July 2000 settlement agreement. In addition, the grievance specifically alleges that the
University violated Article 4 of the contract regarding contracting out unit work.
From October 2001 through May 2002, SETC requested information from CSU regarding, in
pertinent part, the layoffs (termination of appointments) of the Unit 6 employees, the
relationship between CSU and Site Authority, as well as the decision by CSU to retain two
Unit 6 employees until April 2002.
I spoke with you by phone on September 23, 2002. During that conversation you directed my
attention to paragraph 6 of the parties' July 2000 settlement agreement which provides:
6. The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope of
operating authority over that portion of the Stockton site devoted
to CSU's occupancy. The SETC Agreement shall apply to the
performance of work within the scope of Unit 6 work under
the Agreement with respect to all such facilities that are
within the scope of CSU's reduced occupancy for the
Stockton site. (emphasis added)
Specifically you directed my attention to the bolded sentence above and argued that according
to that sentence, the parties' collective bargaining agreement should apply to the remaining
CSU facilities at the Stockton Site.
In the amended charge you assert that CSU has violated HEERA by "creating a 'cover' for
itself called the 'Stockton Site Authority' and then abrogating the SETC-CSU collective
bargaining agreement and the July 2000 Settlement Agreement." You assert that CSU delayed
meetings and providing information to SETC, so as to enable the Site Authority to approve and
implement leases.
LA-CE-666-H
October 17, 2002
Page 2
(
CSU Stanislaus has a satellite facility in Stockton, known as the CSU Stockton Center.	
In
July
2000 SETC and CSU signed a settlement agreement in resolution
of
a grievance filed
by
SETC
on behalf
of
Unit 6 employees at the CSU Stockton Center.
In
accordance with this settlement
agreement, CSU hired approximately ten temporary Unit 6 employees at the CSU Stockton
Center. CSU terminated the appointment
of
most
of
those temporary employees as
of
January
2002. 	Two Unit 6 employees continued to work for CSU until April 2002.
In
addition, two
of
the employees have gone to work for the Stockton Site Authority doing the same maintenance
work done when they were employed by CSU.
In September 2001 the CSU Board
of
Trustees and the City
of
Stockton established a Joint
Powers/Stockton Site Authority.
In December 2001, SETC filed a grievance on behalf
of
the eight Unit 6 employees. The
grievance alleges in part that the University violated paragraphs 3, 5,
6,
7,
8, 9 and others
of
the July 2000 settlement agreement.	
In
addition, the grievance specifically alleges that the
University violated Article 4
of
the contract regarding contracting out unit work.
From October 2001 through May 2002, SETC requested information from CSU regarding, in
pertinent part, the layoffs (termination
of
appointments)
of
the Unit 6 employees, the
relationship between CSU and Site Authority, as well as the decision by CSU to retain two
Unit 6 employees until April 2002.
I spoke with you by phone on September 23, 2002. During that conversation you directed my
attention to paragraph 6
of
the parties' July 2000 settlement agreement which provides:
6.	
The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope
of
operating authority over that portion
of
the Stockton site devoted
to CSU's occupancy. The SETC Agreement shall apply to the·
performance
of
work within the scope of Unit 6 work under
the Agreement with respect to all such facilities that are
within the scope of CSU's reduced occupancy for the
Stockton site. ( emphasis added)
Specifically you directed my attention to the bolded sentence above and argued that according
to that sentence, the parties' collective bargaining agreement should apply to the remaining
CSU facilities at the Stockton Site.
In the amended charge you assert that CSU has violated HEERA by "creating a 'cover' for
itself called the 'Stockton Site Authority' and then abrogating the SETC-CSU collective
bargaining agreement and the July 2000 Settlement Agreement." You assert that CSU delayed
meetings and providing information to SETC, so as to enable the Site Authority to approve and
implement leases.

LA-CE-666-H
October 17, 2002
Page 3
In support of this contention you provide a copy of the Proposed Ground Lease between CSU
and the Stockton Site Authority, the Interim Management Agreement between the Stockton
Site Authority and Grupe Commercial Co., the Ground Lease between the Trustees of the CSU
and Stockton Center Site Authority and the Sublease between the Site Authority and CSU.
Together these documents demonstrate that CSU owns the property which is leased to the Site
Authority and that the Site Authority has subleased a portion of the property to CSU
Stanislaus. Grupe Co. manages the property.
In addition you provide a list of CSU Trustees and top-level CSU staff that also hold positions
with the Site Authority. You also note that CSU controls the State's money in the Site
Authority and that all Site Authority Business is conducted out of the CSU Chancellor's office
in Long Beach.
In further support of your position that through the Site Authority, CSU is abrogating the
Agreement, you list in part the following examples of how CSU refused to follow the
Agreement regarding: union rights, employee rights, notice to the union, change in work
areas, appointment letters, and to hire Unit 6 employees at the Stanislaus-Turlock campus.
You provide no facts in support of this list.
You also state that SETC requested to bargain regarding Unit 6 work as identified in the July
2000 settlement agreement and the parties' collective bargaining agreement. In addition to
requesting to bargain with CSU over what Unit 6 work would be done at the Stockton Site, you
list twenty-four topics regarding Unit 6 working conditions at the Stockton Site that SETC
requested to bargain. That list includes in part the following topics: movement of Unit 6
employees from Central Plant shops to Acacia Building; Unit 6 break room, rest rooms, clean-
up; transfer rights of temporary employees to Turlock Campus; distribution of SETC literature;
Unit 6 hours of work and assignments; use of maintenance equipment; appointment letters;
personnel files; pay increases and the work done by Grupe Co. and other contractors after
January 2002.
DISCUSSION
As a threshold issue, in the September 9, 2002, warning letter I explained that although you
argue that the Site Authority is a "cover" for CSU, you have not demonstrated that the two
constitute either a "joint employer" or a "single employer." A "single employer" relationship
exists where two nominally separate entities are in reality part of a single integrated enterprise,
and in fact only a single employer. A "joint employer" relationship exists where two or more
employers exert significant control over the same employees, and the facts show that they
share those matters governing essential terms and conditions of employment. (The Regents of
the University of California (1999) PERB Order No. Ad-293-H.)
Here, the Stockton Site Authority was established under the applicable provisions of the
Government Code and is a public entity separate from the City of Stockton and CSU.
Although a significant number of the Site Authority's Board of Directors and officers are CSU
employees, you have provided no evidence that the actions of the Site Authority are in reality
LA-CE-666-H
October 17, 2002
Page 3
( 	(
In support
of
this contention you provide a copy
of
the Proposed Ground Lease between CSU
and the Stockton Site Authority, the Interim Management Agreement between the Stockton
Site Authority and Grupe Commercial Co., the Ground Lease between the Trustees
of
the CSU
and Stockton Center Site Authority and the Sublease between the Site Authority and CSU.
Together these documents demonstrate that CSU owns the property which is leased to the Site
Authority and that the Site Authority has subleased a portion
of
the property to CSU
Stanislaus. Grupe Co. manages the property.
In addition you provide a list
of
CSU Trustees and top-level CSU staff that also hold positions
with the Site Authority. You also note that CSU controls the State's money in the Site
Authority and that all Site Authority Business is conducted out
of
the CSU Chancellor's office
in Long Beach.
In further support
of
your position that through the Site Authority, CSU is abrogating the
Agreement, you list in part the following examples
of
how CSU refused to follow the
Agreement regarding: union rights, employee rights, notice to the union, change in work
areas, appointment letters, and to hire Unit 6 employees at the Stanislaus-Turlock campus.
You provide no facts in support
of
this list.
You also state that SETC requested to bargain regarding Unit 6 work as identified in the July
2000 settlement agreement and the parties' collective bargaining agreement. In addition to
requesting to bargain with CSU over what Unit 6 work would be done at the Stockton Site, you
list twenty-four topics regarding Unit 6 working conditions at the Stockton Site that SETC
requested to bargain. That list includes in part the following topics: movement
of
Unit 6
employees from Central Plant shops to Acacia Building; Unit 6 break room, rest rooms, clean-
up; transfer rights
of
temporary employees to Turlock Campus; distribution
of
SETC literature;
Unit 6 hours
of
work and assignments; use
of
maintenance equipment; appointment letters;
personnel files; pay increases and the work done by Grupe Co. and other contractors after
January 2002.
DISCUSSION
As a threshold issue, in the September 9, 2002, warning letter I explained that although you
argue that the Site Authority is a "cover" for CSU, you have not demonstrated that the two
constitute either a "joint employer" or a "single employer." A "single employer" relationship
exists where two nominally separate entities are in reality part of a single integrated enterprise,
and in fact only a single employer. A 'joint employer" relationship exists where two or more
employers exert significant control over the same employees, and the facts show that they
share those matters governing essential terms and conditions
of
employment. (The Regents
ofthe University
of
California (1999) PERB Order No. Ad-293-H.)
Here, the Stockton Site Authority was established under the applicable provisions of the
Government Code and is a public entity separate from the City of Stockton and CSU.
Although a significant number of the Site Authority's Board of Directors and officers are CSU
employees, you have provided no evidence that the actions of the Site Authority are in reality

LA-CE-666-H
October 17, 2002
Page 4
those of CSU under either theory. Because the Site Authority was created in conjunction with
the City of Stockton, there are also City of Stockton officials involved in the running of the
Site Authority.
It should be noted that even if the Site Authority was a cover for CSU, the allegations in the
charge would still be deferred to arbitration and dismissed pursuant to the parties' collective
bargaining agreement and PERB precedent as explained below.
Information Requests
You allege that CSU violated HEERA by failing to provide SETC with information necessary
and relevant to the discharge of its duty of representation when it failed to provide SETC with
the information requested from October 2001 through May 2002 and denied the union access
to personnel files in February 2002.
Article 9.20 of the parties' collective bargaining agreement provides:
In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount of time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
reasonable amount of time after the request for information is
made.
Article 13.1 provides in part:
a. An employee shall have the right to inspect his/her personnel
file at reasonable times during the regular business hours of the
Personnel Office.
b. An employee may request a copy of any written materials in
the personnel file and a copy will be provided in a timely manner.
c. One (1) copy of each document which is related to a grievance
and maintained in the personnel file shall be provided free of
charge to the employee, upon the employee's request.
d. The employee may be required to bear the cost of duplicating
other materials.
LA-CE-666-H
October 17, 2002
Page 4
(
those
of
CSU under either theory. Because the Site Authority was created in conjunction with
the City
of
Stockton, there are also City
of
Stockton officials involved in the running
of
the
Site Authority.
·
It should be noted that even
if
the Site Authority was a cover for CSU, the allegations in the
charge would still be deferred to arbitration and dismissed pursuant to the parties' collective
bargaining agreement and PERB precedent as explained below.
Information Requests
You allege that CSU violated HEERA by failing to provide SETC with information necessary
and relevant to the discharge·of its duty
of
representation when it failed to provide SETC with
the information requested from October 2001 through May 2002 and denied the union access
to personnel files in February 2002.
Article 9.20
of
the parties' collective bargaining agreement provides:
In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose
of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount
of
time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
reasonable amount
of
time after the request for information is
made.
Article
13
.1
provides in part:
a.	
An employee shall have the right to inspect his/her personnel
file at reasonable times during the regular business hours
of
the
Personnel Office.
b. An employee may request a copy
of
any written materials in
the personnel file and a copy will be provided in a timely manner.
c. One (1) copy of each document which is related to a grievance
and maintained in the personnel file shall be provided free
of
charge to the employee, upon the employee's request.
d. The employee may be required to bear the cost of duplicating
other materials.

CLA-CE-666-H
October 17, 2002
Page 5
Article 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies of
materials in the file.
As I explained in the attached letter, PERB Regulation 32620(b)(6) requires a Board agent to
'[p]lace the charge in abeyance if the dispute arises under MMBA or HEERA and is subject to
final and binding arbitration pursuant to a collective bargaining agreement. . .." You did not
address the potential deferral of this allegation in the amended charge.
The charge alleges that CSU failed to provide SETC with the information requested and denied
the union access to personnel files. This conduct is covered by the parties' collective
bargaining agreement, the Respondent has agreed to waive any procedural defenses, and there
is no evidence that the dispute arises in other than a stable collective bargaining environment.
Accordingly, these allegations must be deferred to arbitration and shall be placed in abeyance
until such time as the arbitration process has concluded. Following the arbitration of this
matter, the allegations will be dismissed unless the Charging Party seeks a repugnanty review
by PERB of the arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los
Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-81a.)
This Notice of Abeyance is an interlocutory order and, therefore, is not appealable to the Board
itself except as specified in Regulation 32200. In accordance with Regulation 32200, a party
may object to this decision to place these allegations in abeyance and request a ruling by the
Board itself within ten (10) days following the date of service of this decision by filing a
written request with the undersigned at the letterhead address and by filing a copy with the
Board itself, addressed as follows:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18 Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
The Board itself will accept the request only if the Board agent joins in the request and has
made a determination that all of the following apply:
1. The issue involved is one of law;
2. The issue involved is controlling in the case; and
3. An immediate appeal will materially advance the resolution of the case.
LA-CE-666-H
October 17, 2002
Page 5
Article 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies
of
materials in the file.
As I explained in the attached letter, PERB Regulation 32620(b )( 6) requires a Board agent to
"[p]lace the charge in abeyance
if
the dispute arises under MMBA or HEERA and is subject to
final and binding arbitration pursuant to a collective bargaining agreement.
...
" You did not
address the potential deferral
of
this allegation in the amended charge.
The charge alleges that CSU failed to provide SETC with the information requested and denied
the union access to personnel files. 	This conduct is covered by the parties' collective
bargaining agreement, the Respondent has agreed to waive any procedural defenses, and there
is no evidence that the dispute arises in other than a stable collective bargaining environment.
Accordingly, these allegations must be deferred to arbitration and shall be placed in abeyance
until such time as the arbitration process has concluded. Following the arbitration
of
this
matter, the allegations will be dismissed unless the Charging Party seeks a repugnancy review
by PERB
of
the arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los
Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-8la.)
This Notice
of
Abeyance is an interlocutory order and, therefore, is not appealable to the Board
itself except as specified in Regulation 32200. In accordance with Regulation 32200, a party
may object to this decision to place these allegations in abeyance and request a ruling
by
the
Board itself within ten (10) days following the date
of
service
of
this decision by filing a
written request with the undersigned at the letterhead address and by filing a copy with the
Board itself, addressed as follows:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18 th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
The Board itself will accept the request only
if
the Board agent joins in the request and has
made a determination that all
of
the following apply:
1.	
The issue involved is one of law;
2. 	The issue involved is controlling in the case; and
3. 	An immediate appeal will materially advance the resolution of the case.

LA-CE-666-H
October 17, 2002
Page 6
Unilateral Change, Discrimination/Retaliation and Bad Faith Bargaining
In the original charge, you allege that CSU was obligated to meet and confer with SETC
regarding the layoff of the temporary Unit 6 employees, that CSU transferred bargaining unit
work when two of the temporary Unit 6 employees were later hired by the Site Authority and
that CSU discriminated/retaliated against Unit 6 members. You did not address these
allegations in the amended charge. Thus for the reasons stated in the September 9, 2002
warning letter these allegations are dismissed.
In the amended charge, you allege that CSU has failed to bargain in good faith since December
2001. Bad faith or surface bargaining is a violation of HEERA section 3571(c). It is the
essence of surface bargaining that a party goes through the motions of negotiations, but in fact
is weaving otherwise unobjectionable conduct into an entangling fabric to delay or prevent'
agreement. (Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an
accusation of surface bargaining, PERB will resolve the question of good faith by analyzing
the totality of the accused party's conduct. The Board weighs the facts to determine whether
the conduct at issue "indicates an intent to subvert the negotiating process or is merely a
legitimate position adamantly maintained." (Oakland Unified School District (1982) PERB
Decision No. 275.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure of the duty to bargain because it amounts to merely going through
the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194 [57 LRRM
1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling of meetings is
evidence of manipulation to delay and obstruct a timely agreement. (Oakland Unified School
District (1983) PERB Decision No. 326.) Dilatory and evasive tactics including canceling
meetings or failing to prepare for meetings is evidence of bad faith. (Oakland Unified School
District, supra, PERB Decision No. 326.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-
and-take. (State of California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra, PERB Decision No. 143;
Placerville Union School District (1978) PERB Decision No. 69).
You allege that CSU failed to bargain in good faith and provide a list of twenty-four topics
regarding Unit 6 working conditions that SETC requested to bargain. However, you have not
shown how requesting to bargain the items on this list constitutes in the totality a failure on the
part of CSU to bargain in good faith. You have not demonstrated any of the indicia of surface
LA-CE-666-H
October 17, 2002
Page 6
( 	(
Unilateral Change, Discrimination/Retaliation and Bad Faith Bargaining
In the original charge, you allege that CSU was obligated to meet and confer with SETC
regarding the layoff
of
the temporary Unit 6 employees, that CSU transferred bargaining unit
work when two
of
the temporary Unit 6 employees were later hired by the Site Authority and
that CSU discriminated/retaliated against Unit 6 members. You did not address these
allegations in the amended charge. Thus for the reasons stated in the September
9,
2002
warning letter these allegations are dismissed.
In the amended charge, you allege that CSU has failed to bargain in good faith since December
2001. Bad faith or surface bargaining is a violation ofHEERA section 3571(c). It is the
essence
of
surface bargaining that a party goes through the motions
of
negotiations, but in fact
is weaving otherwise unobjectionable conduct into an entangling fabric to delay or prevent'
agreement. 	(Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an
accusation
of
surface bargaining, PERB will resolve the question
of
good faith by analyzing
the totality
of
the accused party's conduct. The Board weighs the facts to determine whether
the conduct at issue "indicates an intent to subvert the negotiating process or is merely a
legitimate position adamantly maintained." (Oakland Unified School District (1982) PERB
Decision No. 275.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure
of
the duty to bargain because it amounts to merely going through
the motions
of
negotiations. (General Electric Co. (1964) 150 NLRB 192, 194 [57 LRRM
1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling
of
meetings is
evidence
of
manipulation to delay and obstruct a timely agreement. 	(Oakland Unified School
District (1983) PERB Decision No. 326.) Dilatory and evasive tactics including canceling
meetings or failing to prepare for meetings is evidence
of
bad faith. 	(Oakland Unified School
District, supra, PERB Decision No. 326.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence
of
an unwillingness to engage in a give-
and-take. (State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia
of
surface bargaining include: negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra, PERB Decision No. 143;
Placerville Union School District (1978) PERB Decision No. 69).
You allege that CSU failed to bargain in good faith and provide a list
of
twenty-four topics
regarding Unit 6 working conditions that SETC requested to bargain. However, you have not
shown how requesting to bargain the items on this list constitutes in the totality a failure on the
part of CSU to bargain in good faith. You have not demonstrated any of the indicia of surface

LA-CE-666-H
October 17, 2002
Page 7
bargaining listed above. As such the allegation that CSU failed to bargain in good faith in
violation of Government Code section 3571(c) is dismissed.
Right to Appeal
Pursuant to PERB 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulation 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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. (Regulation 32132.)
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CE-666-H
October 17, 2002
Page 7
bargaining listed above. As such the allegation that CSU failed to bargain in good faith in
violation of Government Code section 357l(c) is dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulation 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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. (Regulation 32132.)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-666-H
October 17, 2002
Page 8
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
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. (Regulation 32635(b).)
Sincerely,
ROBERT THOMPSON
General Counsel
Marie A. Nakamura
Regional Attorney
Attachment
cc: Elisabeth Sheh Walter
MAN
LA-CE-666-H
October 17, 2002
Page 8
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
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. (Regulation 32635(b ).)
Sincerely,
ROBERT THOMPSON
General Counsel
By~~/z_--	By
Marie A. Nakamura
Regional Attorney
Attachment
cc: Elisabeth Sheh Walter
MAN

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377	PERB
Patrick Hallahan, Labor Consultant
9647 Folsom Blud., Suite 307
Sacramento, CA 95827-1202
Re: 	State Employees Trades Council v. Trustees of the California State University
(Stanislaus)
Unfair Practice Charge No. LA-CE-666-H
WARNING LETTER
Dear Mr. Hallahan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2002. The State Employees Trades Council (SETC)
alleges that the Trustees of the California State University (Stanislaus) violated the Higher
Education Employer-Employee Relations Act by making unlawful unilateral changes, by
failing to provide information relevant to the representation of its members and by
discriminating against Unit 6 members.
FACTS
SETC and CSU are parties to a collective bargaining agreement effective from July 1, 1999
through June 30, 2002 for Bargaining Unit 6, Skilled Crafts. Article 9 of the Agreement sets
forth the grievance procedure, which ends in binding arbitration.
Lay-Off and Transfer of Bargaining Unit Work
Article 1.9(e) of the Agreement provides the following definition of temporary employee:
Temporary Employee - The term "temporary employee" as used
in this Agreement refers to a bargaining unit employee who is
serving in a temporary appointment for a specified period of time.
Article 4, Contracting Out, provides at 4.1:
When determining whether or not to contract out work, the
Employer shall make every reasonable effort to perform normal
bargaining unit work in-house, within the limitations and
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-83 84
Fax: (916) 327-6377
September 9, 2002	September
9,
2002
Patrick Hallahan, Labor Consultant
9647 Folsom Blvd., Suite 307
Sacramento, CA 95827-1202
Re: 	State Employees Trades Council v. Trustees
of
the California State University
(Stanislaus)
Unfair Practice Charge No. LA-CE-666-H
WARNING LETTER
Dear Mr. Hallahan:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2002. 	The State Employees Trades Council (SETC)
alleges that the Trustees
of
the California State University (Stanislaus) violated the Higher
Education Employer-Employee Relations Act1 by making unlawful unilateral changes, by
failing to provide information relevant to the representation
of
its members and by
discriminating against Unit 6 members.
FACTS
SETC and CSU are parties to a collective bargaining agreement effective from July 1, 1999
through June 30, 2002 for Bargaining Unit 6, Skilled Crafts. Article 9
of
the Agreement sets
forth the grievance procedure, which ends in binding arbitration.
Lay-Off and Transfer
of
Bargaining Unit Work
Article 1.9(e)
of
the Agreement provides the following definition of temporary employee:
Temporary Employee - The term "temporary employee" as used
in this Agreement refers to a bargaining unit employee who is
serving in a temporary appointment for a specified period
of
time.
Article 4, Contracting Out, provides at 4.1:
When determining whether or not to contract out work, the
Employer shall make every reasonable effort to perform normal
bargaining unit work in-house, within the limitations and
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-666-H
September 9, 2002
Page 2
requirements imposed by law. The decision to contract out work
is the prerogative of the Employer.
Article 29 of the agreement covers layoffs. Article 29.3, Notice of Impending Layoff,
provides:
When CSU determines that there may be a need for
implementation of any procedures outlined in this Article, 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.
Article 29.5 provides, "[njon-reappointment of temporary employees does not constitute
layoff."
CSU Stanislaus has a satellite facility in Stockton, known as the CSU Stockton Center.
In July 2000 SETC and CSU signed a settlement agreement in resolution of a grievance filed
by SETC on behalf of Unit 6 employees at the CSU Stockton Center.
The July 2000 settlement agreement provides in part:
2. The University agrees to hire temporary Unit 6 personnel to
operate and maintain CSU-Stanislaus, Stockton site only, for the
remaining period that it has operating authority for the entire site
or until the central plant is eliminated, whichever is sooner.
Temporary employees shall be hired under this agreement.
. . . . . . .
6. The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope of
operating authority over that portion of the Stockton site devoted
to CSU's occupancy. The SETC Agreement shall apply to the
performance of work within the scope of Unit 6 work under the
Agreement with respect to all such facilities that are within the
scope of CSU's reduced occupancy for the Stockton site.
7. The parties agree that the obligations of this agreement apply
to CSU and not to any other person or entity that may assume
some or all of the operating authority for some portion or all of
the Stockton site independent of any CSU operating authority.
LA-CE-666-H
September 9, 2002
Page 2
requirements imposed by law. The decision to contract out work
is the prerogative
of
the Employer.
Article 29
of
the agreement covers layoffs. Article 29.3, Notice
of
Impending Layoff,
provides:
When CSU determines that there may be a need for
implementation
of
any procedures outlined in this Article, 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.
Article 29.5 provides, "[n]on-reappointment
of
temporary employees does not constitute
layoff."
CSU Stanislaus has a satellite facility in Stockton, known as the CSU Stockton Center.
In July 2000 SETC and CSU signed a settlement agreement in resolution
of
a grievance filed
by SETC on behalf
of
Unit 6 employees at the CSU Stockton Center.
The July 2000 settlement agreement provides in part:
2. The University agrees to hire temporary Unit 6 personnel to
operate and maintain CSU-Stanislaus, Stockton site only, for the
remaining period that it has operating authority for the entire site
or until the central plant is eliminated, whichever is sooner.
Temporary employees shall be hired under this agreement.
6. The parties acknowledge that within the next approximately
24-months that the CSU will not have operating authority over
the entire Stockton site, but may retain a reduced scope
of
operating authority over that portion
of
the Stockton site devoted
to CSU' s occupancy. The SETC Agreement shall apply to the
performance
of
work within the scope
of
Unit 6 work under the
Agreement with respect to all such facilities that are within the
scope
of
CSU' s reduced occupancy for the Stockton site.
7. The parties agree that the obligations of this agreement apply
to CSU and not to any other person or entity that may assume
some or all of the operating authority for some portion or all of
the Stockton site independent of any CSU operating authority.

LA-CE-666-H
September 9, 2002
Page 3
In accordance with this settlement agreement, CSU hired approximately ten temporary Unit 6
employees at the CSU Stockton Center. These temporary employees were assigned Unit 6
work. Each of the temporary employees were provided a letter from the Human Resources
Director in September or October 2001 that stated in part, "... California State University,
Stanislaus is pleased to notify you of your temporary full time reappointment as an Operating
Engineer..." The letter also states, "[this appointment is effective from October 1, 2001 and
will end on or before February 28, 2002."-
In May 2001 the CSU Board of Trustees established a Joint Powers/Stockton Site Authority
with a Board of Directors to oversee the redevelopment of the CSU Stanislaus Stockton Site.
The Joint Powers Agreement provide in part:
. . .
2. Site Authority Created. There s hereby created a public entity
to be known as the "Stockton Center Site Authority." The Site
Authority is formed by this Agreement pursuant to the provisions
of articles 1-4, chapter 5, division 7, title 1 of the Government
Code of the State of California. The Site Authority shall be a
public entity separate from the Parties hereto and shall administer
this Agreement.
10. Governing Body of the Site Authority.
a. The business of the Site. Authority shall be conducted by a
Board of Directors consisting of seven (7) persons. All voting
power of the Site Authority shall reside in the Board of Directors.
The Board shall be comprised as follows: three (3) Stockton City
Councilmembers appointed by the City, three (3) members
appointed by the Chancellor of the California State University,
and one (1) member jointly appointed by the Mayor of the City of
Stockton and Chancellor of the California State University.
The Board of Directors was selected pursuant to the Joint Settlement Agreement. The
Executive Director of the Stockton Site Authority is CSU Assistant Vice Chancellor Patrick
Copies of these letters were provided by Respondent in Exhibit 6 of the supplemental
response sent by CSU to SETC and PERB on June 14, 2002.
LA-CE-666-H
September 9, 2002
Page 3
(
\
In accordance with this settlement agreement, CSU hired approximately ten temporary Unit 6
employees at the CSU Stockton Center. These temporary employees were assigned Unit 6
work. Each of the temporary employees were provided a letter from the Human Resources
Director in September or October 2001 that stated in part," ... California State University,
Stanislaus is pleased to notify you of your temporary full time reappointment as an Operating
Engineer ... " The letter also states, "[t]his appointment is effective from October 1, 2001 and
will end on or before February 28, 2002."2
In May 2001 the CSU Board of Trustees established a Joint Powers/Stockton Site Authority
with a Board of Directors to oversee the redevelopment of the CSU Stanislaus Stockton Site.
The Joint Powers Agreement provide in part:
2. Site Authority Created. There s hereby created a public entity
to be known as the "Stockton Center Site Authority." The Site
Authority is formed by this Agreement pursuant to the provisions
of articles 1-4, chapter 5, division 7, title 1 of the Government
Code of the State of California. The Site Authority shall be a
public entity separate from the Parties hereto and shall administer
this Agreement.
10. Governing Body of the Site Authority.
a. The business of the Site Authority shall be conducted by a
Board of Directors consisting of seven (7) persons. All voting
power of the Site Authority shall reside in the Board of Directors.
The Board shall be comprised as follows: three (3) Stockton City
Councilmembers appointed by the City, three (3) members
appointed by the Chancellor of the California State University,
and one (1) member jointly appointed by the Mayor of the City of
Stockton and Chancellor of the California State University.
The Board of Directors was selected pursuant to the Joint Settlement Agreement. The
Executive Director of the Stockton Site Authority is CSU Assistant Vice Chancellor Patrick
2 Copies of these letters were provided by Respondent in Exhibit 6 of the supplemental
response sent by CSU to SETC and PERB on June 14, 2002.

LA-CE-666-H
September 9, 2002
Page 4
Drohan. CSU General Counsel Elisabeth Sheh Walter is the attorney for the Site Authority.
Secretary of the Site Authority is the City Clerk for the City of Stockton.
SETC was unaware of the establishment of the Site Authority until October 2001 when rumors
began to circulate that there might be layoffs of Unit 6 employees at the CSU Stockton Center.
In October and November 2001 SETC Steward Greg Starr discussed the rumored layoffs with
representatives of CSU. On December 3, 2001, Mr. Starr sent to CSU Stanislaus Director of
Human Resources Mary Kobayashi-Lee a memorandum requesting that CSU Stanislaus meet
with representatives of the union to discuss the Stockton Center Unit 6 employees.
On December 14, 2001, SETC representatives met with CSU representatives. During this
meeting CSU provided SETC with copies of notices which state that the appointment of the
eight Unit 6 employees would end on January 15, 2002. SETC characterizes these notices as
"layoff notices. SETC requested that CSU postpone any layoffs until the parties could meet
and work out an agreement and also requested to bargain the effect of the layoffs. The notice
provide to each temporary Unit 6 employee states in part:
This letter is official notification that your temporary
appointment as Facilities Maintenance Mechanic will be ending
on January 15, 2002...
On December 20, SETC filed a grievance on behalf of the eight Unit 6 employees. The
grievance alleges that the University violated paragraphs 3, 5, 6, 7, 8, 9 and others of the July
2000 settlement agreement. In addition, the grievance specifically alleges that the University
violated Article 4 of the contract regarding contracting out unit work. The grievance also
alleges that the University violated several other Articles of the contract but does not explain
how these articles were violated.
On December 21, 2001, Ms. Kobayashi-Lee sent SETC a letter that stated that some yet
undetermined number of Unit 6 employees would have their appointments extended through
April 2002. Two Unit 6 employees remained working for the University until April 2002.
The parties met on February 4, 2002, to discuss the grievance which had proceeded to Level
III. The grievance was not resolved at this level. SETC has requested to meet with CSU
regarding these grievances on numerous occasions.
Since the Unit 6 employees' temporary assignments ended, two of the employees have gone to
work for the Stockton Site Authority doing the same maintenance work done when they were
employed by CSU.
Information Requests
Article 9.20 of the parties' collective bargaining agreement provides:
LA-CE-666-H
September
9,
2002
Page 4
Drohan. CSU General Counsel Elisabeth Sheh Walter is the attorney for the Site Authority.
Secretary
of
the Site Authority is the City Clerk for the City
of
Stockton.
SETC was unaware
of
the establishment
of
the Site Authority until October 2001 when rumors
began to circulate that there might be layoffs
of
Unit 6 employees at the CSU Stockton Center.
In
October and November 2001 SETC Steward Greg Starr discussed the rumored layoffs with
representatives
of
CSU. On December 3, 2001, Mr. Starr sent to CSU Stanislaus Director
of
Human Resources Mary Kobayashi-Lee a memorandum requesting that CSU Stanislaus meet
with representatives
of
the union to discuss the Stockton Center Unit 6 employees.
On December 14, 2001, SETC representatives met with CSU representatives. During this
meeting CSU provided SETC with copies
of
notices which state that the appointment
of
the
eight Unit 6 employees would end on January 15, 2002. SETC characterizes these notices as
"layoff' notices. SETC requested that CSU postpone any layoffs until the parties could meet
and work out an agreement and also requested to bargain the effect
of
the layoffs. The notice
provide to each temporary Unit 6 employee states in part:
This letter is official notification that your temporary
appointment as Facilities Maintenance Mechanic will be ending
on January 15, 2002 ...
On December 20, SETC filed a grievance on behalf
of
the eight Unit 6 employees. The
grievance alleges that the University violated paragraphs 3, 5, 6, 7, 8, 9 and others
of
the July
2000 settlement agreement.	
In
addition, the grievance specifically alleges that the University
violated Article 4
of
the contract regarding contracting out unit work. The grievance also
alleges that the University violated several other Articles
of
the contract but does not explain
how these articles were violated.
On December 21, 2001, Ms. Kobayashi-Lee sent SETC a letter that stated that some yet
undetermined number
of
Unit 6 employees would have their appointments extended through
April 2002. Two Unit 6 employees remained working for the University until April 2002.
The parties met on February 4, 2002, to discuss the grievance which had proceeded to Level
III. The grievance was not resolved at this level. SETC has requested to meet with CSU
regarding these grievances on numerous occasions.
Since the Unit 6 employees' temporary assignments ended, two
of
the employees have gone to
work for the Stockton Site Authority doing the same maintenance work done when they were
employed by CSU.
Information Requests
Article 9.20 of the parties' collective bargaining agreement provides:

In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount of time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
reasonable amount of time after the request for information is
made.
LA-CE-666-H
September 9, 2002
Page 5
Article 13.1 provides in part:
a. An employee shall have the right to inspect his/her personnel
file at reasonable times during the regular business hours of the
Personnel Office.
b. An employee may request a copy of any written materials in
the personnel file and a copy will be provided in a timely manner.
c. One (1) copy of each document which is related to a grievance
and maintained in the personnel file shall be provided free of
charge to the employee, upon the employee's request.
d. The employee may be required to bear the cost of duplicating
other materials.
Article 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies of
materials in the file.
From October 2001 through May 2002, SETC requested information from CSU regarding, in
pertinent part, the layoffs of the Unit 6 employees, the relationship between CSU and Site
Authority, as well as the decision by CSU to retain two Unit 6 employees until April 2002. Per
my request on May 24, 2002 you provided PERB with a lengthy list of information requested
from CSU. While CSU provided you with some of the requested information, CSU
representative Ms. Kobayashi-Lee informed you that because CSU and the Site Authority had
a landlord tenant relationship, much of the information should be requested directly from the
landlord Site Authority.
On December 20, 2001, SETC Representative Starr presented CSU with signed employee
authorizations to inspect personnel files for seven Unit 6 employees. On February 8, 2002,
LA-CE-666-H
September 9, 2002
Page 5
(
In cases where it is necessary for the grievant or his/her
representative to have access to information for the purpose of
investigating a grievance, the grievant or his/her representative
shall make a written request for such information to the
appropriate administrator a reasonable amount of time before
such information is needed. The appropriate administrator shall
provide such information to the requesting party within a
reasonable amount of time after the request for information is
made.
Article 13 .1 provides in part:
a. An employee shall have the right to inspect his/her personnel
file at reasonable times during the regular business hours of the
Personnel Office.
b. An employee may request a copy of any written materials in
the personnel file and a copy will be provided in a timely manner.
c. One (1) copy of each document which is related to a grievance
and maintained in the personnel file shall be provided free of
charge to the employee, upon the employee's request.
d. The employee may be required to bear the cost of duplicating
other materials;
Article 13.2 provides:
An employee may authorize in writing a union representative
and/or steward to inspect his/her file and to request copies of
materials in the file.
From October 2001 through May 2002, SETC requested information from CSU regarding, in
pertinent part, the layoffs of the Unit 6 employees, the relationship between CSU and Site
Authority, as well as the decision by CSU to retain two Unit 6 employees until April 2002. Per
my request on May 24, 2002 you provided PERB with a lengthy list of information requested
from CSU. While CSU provided you with some of the requested information, CSU
representative Ms. Kobayashi-Lee informed you that because CSU and the Site Authority had
a landlord tenant relationship, much of the information should be requested directly from the
landlord Site Authority.
On December 20, 2001, SETC Representative Starr presented CSU with signed employee
authorizations to inspect personnel files for seven Unit 6 employees. On February 8, 2002,

LA-CE-666-H
September 9, 2002
Page 6
Ms. Kobayashi-Lee refused to allow Mr. Starr access to the personnel files, despite the written
authorizations.
DISCUSSION
The charge alleges that CSU made unlawful unilateral changes by laying off the Unit 6
employees at the CSU Stockton Center without meeting and conferring with SETC, and by
transferring bargaining unit work from Unit 6 to the newly created Stockton Site Authority. In
addition, the charge alleges that CSU failed to provide relevant information requested by SETC
and discriminated against Unit 6 employees.
Before turning to these allegations as threshold issue, you argue that the Stockton Site
Authority is not an independent entity and that its actions are attributable to CSU. However,
you provide no evidence to support this contention. In order to show that the actions of the
Stockton Site Authority are attributable to CSU, you must establish that the two constitute
either a "joint employer" or a "single employer." A "single employer" relationship exists
where two nominally separate entities are in reality part of a single integrated enterprise, and in
fact only a single employer. A "joint employer" relationship exists where two or more
employers exert significant control over the same employees, and the facts show that they
share those matters governing essential terms and conditions of employment. (The Regents of
the University of California (1999) PERB Order No. Ad-293-H.)
The Stockton Site Authority was established under the applicable provisions of the
Government Code and is a public entity separate from the City of Stockton and CSU.
Although a portion of the Site Authority's Board of Directors and one of its officers are CSU
employees, you have provided no evidence that the actions of the Site Authority are in reality
those of CSU under either a single or joint employer theory.
Unilateral Changes
First, in determining whether a party has violated HEERA section 3571(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if
certain criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Unified High School District (1982) PERB Decision No. 196.)
Here there has been no change in policy within the scope of representation in regards to the
alleged layoffs. It is undisputed that the Unit 6 employees working at the CSU Stockton
Center were temporary employees. Although the collective bargaining agreement directs CSU
to meet and confer with SETC regarding the impact of any layoffs, Article 29.5 specifically
provides that "[njon-reappointment of temporary employees does not constitute layoff."
LA-CE-666-H
September 9, 2002
Page 6
(
Ms. Kobayashi-Lee refused to allow Mr. Starr access to the personnel files, despite the written
authorizations.
DISCUSSION
The charge alleges that CSU made unlawful unilateral changes by laying
off
the Unit 6
employees at the CSU Stockton Center without meeting and conferring with SETC, and
by
transferring bargaining unit work from Unit 6 to the newly created Stockton Site Authority. In
addition, the charge alleges that CSU failed to provide relevant information requested
by
SETC
and discriminated against Unit 6 employees.
Before turning to these allegations as threshold issue, you argue that the Stockton Site
Authority is not an independent entity and that its actions are attributable to CSU. However,
you provide no evidence to support this contention.
In
order to show that the actions
of
the
Stockton Site Authority are attributable to CSU, you must establish that the two constitute
either a "joint employer" or a "single employer." A "single employer" relationship exists
where two nominally separate entities are in reality part
of
a single integrated enterprise, and in
fact only a single employer. A "joint employer" relationship exists where two or more
employers exert significant control over the same employees, and the facts show that they
share those matters governing essential terms and conditions
of
employment. (The Regents
of
the University
of
California (1999) PERB Order No. Ad-293-H.)
The Stockton Site Authority was established under the applicable provisions
of
the
Government Code and is a public entity separate from the City
of
Stockton and CSU.
Although a portion
of
the Site Authority's Board
of
Directors and one
of
its officers are CSU
employees, you have provided no evidence that the actions
of
the Site Authority are in reality
those
of
CSU under either a single or joint employer theory.
Unilateral Changes
First, in determining whether a party has violated HEERA section 3571(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met. 	Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope
of
representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Unified High School District (1982) PERB Decision No. 196.)
Here there has been no change in policy within the scope of representation in regards to the
alleged layoffs. It is undisputed that the Unit 6 employees working at the CSU Stockton
Center were temporary employees. Although the collective bargaining agreement directs CSU
to meet and confer with SETC regarding the impact of any layoffs, Article 29 .5 specifically
provides that "[n]on-reappointment of temporary employees does not constitute layoff."

LA-CE-666-H
September 9, 2002
Page 7
Because the Unit 6 employees were temporary, their dismissal in January 2002 did not
constitute layoffs. Thus there was no change in policy about which the University had an
obligation to meet and confer. Without a change in policy within the scope of representation
there can be no unlawful unilateral change.
Second, in determining whether a party has violated HEERA section 3571(c), by transferring
bargaining unit work PERB utilizes the same unilateral change analysis above along with the
following additional legal guidelines.
PERB has held that the transfer of work from bargaining unit employees to those in a different
or no bargaining unit is a subject within the scope of representation. (Rialto Unified School
District (1982) PERB Decision No. 209.) However, not all transfers of bargaining unit work
are negotiable. In Eureka City Schools (1985) PERB Decision No. 481, the Board held that a
change in the distribution of duties between unit and non-unit employees, where there is an
established practice of overlapping duties, does not always give rise to a duty to bargain. In
Eureka, the Board stated that:
In our view, in order to prevail on a unilateral transfer of work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out of the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity of work which nonunit employees perform and
decreasing the quantity of work which unit employees perform.
[Emphasis in original; footnote omitted.]
Here, CSU has not unlawfully transferred bargaining Unit 6 work. There was no transfer of
bargaining unit work from one unit to another. Instead the two employees were dismissed by
CSU and subsequently hired by the Site Authority, a new employer.
It should be noted that if facts are presented that establish that CSU did transfer bargaining unit
work, Article 4 of the collective bargaining agreement establishes a policy for contracting out
work and expressly states that the "decision to contract out work is the prerogative of the
Employer." Thus CSU has the authority under the collective bargaining agreement to transfer
bargaining unit work without meeting and conferring with SETC.
Further even if Charging Party is able to establish that SETC made unlawful unilateral
changes, such allegations would be deferrable to arbitration. Regulation 32620(b)(6) requires
the Board agent processing the charge to:
LA-CE-666-H
September 9, 2002
Page 7
( 	(
Because the Unit 6 employees were temporary, their dismissal in January 2002 did not
constitute layoffs. Thus there was no change in policy about which the University had an
obligation to meet and confer. Without a change in policy within the scope
of
representation
there can be no unlawful unilateral change.
Second, in determining whether a party has violated HEERA section 3571(c), by transferring
bargaining unit work PERB utilizes the same unilateral change analysis above along with the
following additional legal guidelines.
PERB has held that the transfer
of
work from bargaining unit employees to those in a different
or no bargaining unit is a subject within the scope ofrepresentation. (Rialto Unified School
District (1982) PERB Decision No. 209.) However, not all transfers
of
bargaining unit work
are negotiable. In Eureka City Schools (1985) PERB Decision No. 481, the Board held that a
change in the distribution
of
duties between unit and non-unit employees, where there is an
established practice
of
overlapping duties, does not always give rise to a duty to bargain. In
Eureka, the Board stated that:
In our view, in order to prevail on a unilateral transfer
of
work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out
of
the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively
by
unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity
of
work which nonunit employees perform and
decreasing the quantity
of
work which unit employees perform.
[Emphasis in original; footnote omitted.]
Here, CSU has not unlawfully transferred bargaining Unit 6 work. There was no transfer
of
bargaining unit work from one unit to another. Instead the two employees were dismissed by
CSU and subsequently hired by the Site Authority, a new employer.
It should be noted that
if
facts are presented that establish that CSU did transfer bargaining unit
work, Article 4
of
the collective bargaining agreement establishes a policy for contracting out
work and expressly states that the "decision to contract out work is the prerogative
of
the
Employer." Thus CSU has the authority under the collective bargaining agreement to transfer
bargaining unit work without meeting and conferring with SETC.
Further even
if
Charging Party is able to establish that SETC made unlawful unilateral
changes, such allegations would be deferrable to arbitration. Regulation 32620(b)( 6) requires
the Board agent processing the charge to:

LA-CE-666-H
September 9, 2002
Page 8
Place the charge in abeyance if the dispute arises under MMBA
or HEERA and is subject to final and binding arbitration pursuant
to a collective bargaining agreement, and dismiss the charge at
the conclusion of the arbitration process unless the charging party
demonstrates that the settlement or arbitration award is repugnant
to the purposes of MMBA or HEERA, as provided in section
32661.
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 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 private
sector." [Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
Although Dry Creek was decided under the Educational Employment Relations Act" it has
been applied to the HEERA. (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 the unilateral change allegations. 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, Elizabeth Sheh
Walter, dated September 5, 2002, as well as CSU's response of March 29, 2002, the
Respondent has indicated its willingness to proceed to arbitration and to waive all procedural
defenses. Finally, the issues raised by this charge that the University made unlawful unilateral
See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
* The Educational Employment Relations Act is codified at Government Code section
3540 et seq.
LA-CE-666-H
September 9, 2002
Page 8
(
Place the charge in abeyance
if
the dispute arises under MMBA
or HEERA and is subject to final and binding arbitration pursuant
to a collective bargaining agreement, and dismiss the charge at
the conclusion
of
the arbitration process unless the charging party
demonstrates that the settlement or arbitration award is repugnant
to the purposes
of
MMBA or HEERA, as provided in section
32661.
·
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a,3 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 award situations.2 BERA
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 private
sector.3 [Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608.]
Although Dry Creek was decided under the Educational Employment Relations Act4 it has
been applied to the HEERA. (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 the unilateral change allegations. 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, Elizabeth Sheh
Walter, dated September 5, 2002, as well as CSU's response
of
March 29, 2002, the
Respondent has indicated its willingness to proceed to arbitration and to waive all procedural
defenses. Finally, the issues raised by this charge that the University made unlawful unilateral
3 See also State
of
California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
4 The Educational Employment Relations Act is codified at Government Code section
3540 et seq.

LA-CE-666-H
September 9, 2002
Page 9
changes regarding layoffs and the transfer of bargaining unit work directly involve
interpretation of Articles 4 and 29 of the MOU.
Information Requests
You allege that the University violated HEERA by failing to provide SETC with information
necessary and relevant to the discharge of its duty of representation when Ms. Kobayashi-Lee
failed to provide SETC with the information requested and denied the union access to
personnel files.
The exclusive representative is entitled to all information that is "necessary and relevant" to the
discharge of its duty of representation. (Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of the requested information. (California State University (1986) PERB
Decision No. 613-H.) Failure to provide such information is a per se violation of the duty to
bargain in good faith
Despite this liberal standard, no complaint will issue as to these allegations as they are also
deferrable to arbitration under the standard explained above.
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,
Elizabeth Sheh Walter, dated September 5, 2002, as well as the response of March 29, 2002,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the University failed to
provide information that was relevant and necessary directly involves interpretations of
Articles 9 and 13 of the MOU.
Discrimination/Retaliation
The charge specifically alleges that CSU "threatened, discriminated against, interfered with,
restrained and coerced Unit 6 Skilled trades working at CSUS and CSUS Stockton Center."
However, Charging Party presents no facts in support of this allegation. To demonstrate a
violation of HEERA section 3571(a), the charging party must show that: (1) the employee
exercised rights under HEERA; (2) the employer had knowledge of the exercise of those
rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees
because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Charging Party provides no facts to demonstrate that any Unit 6 employee was discriminated
against for exercising protected rights. As such you have not established a prima facie
discrimination violation.
Further, Article 7.17 of the collective bargaining agreement provides:
LA-CE-666-H
September 9, 2002
Page 9
changes regarding layoffs and the transfer
of
bargaining unit work directly involve
interpretation
of
Articles 4 and 29
of
the MOU.
Information Requests
You allege that the University violated HEERA by failing to provide SETC with information
necessary and relevant to the discharge
of
its duty
of
representation when Ms. Kobayashi-Lee
failed to provide SETC with the information requested and denied the union access to
personnel files.
The exclusive representative is entitled to all information that is "necessary and relevant" to the
discharge
of
its duty
of
representation. (Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance
of
the requested information. (California State University (1986) PERB
Decision No. 613-H.) Failure to provide such information is a per se violation
of
the duty to
bargain in good faith
Despite this liberal standard, no complaint will issue as to these allegations as they are also
deferrable to arbitration under the standard explained above.
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,
Elizabeth Sheh Walter, dated September 5, 2002, as well as the response
of
March 29, 2002,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the University failed to
provide information that was relevant and necessary directly involves interpretations
of
Articles 9 and
13
of
the MOU.
Discrimination/Retaliation
The charge specifically alleges that CSU "threatened, discriminated against, interfered with,
restrained and coerced Unit 6 Skilled trades working at CSUS and CSUS Stockton Center."
However, Charging Party presents no facts in support
of
this allegation. To demonstrate a
violation ofHEERA section 3571(a), the charging party must show that: (1) the employee
exercised rights under HEERA; (2) the employer had knowledge
of
the exercise
of
those
rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees
because of the exercise
of
those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Charging Party provides no facts to demonstrate that any Unit 6 employee was discriminated
against for exercising protected rights. As such you have not established a prima facie
discrimination violation.
Further, Article 7 .17 of the collective bargaining agreement provides:

LA-CE-666-H
September 9, 2002
Page 10
An employee shall not suffer reprisals for participating in union
activities.
As such, under the same legal standard set forth above, this allegation must also be deferred to
arbitration.
If there are any factual inaccuracies in this letter or additional facts that 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 have the case number written on the
top right hand corner of the charge form. The amended charge must be served on the
respondent's representative and the original proof of service must be filed with PERB.
If I do not receive an amended charge or withdrawal from you before, Monday, September
16, 2002, I will dismiss the unilateral change and discrimination violations. In addition I
will defer the remaining allegations to arbitration and they will be placed in abeyance until
such time as the arbitration process has concluded. Following the arbitration of this matter, the
charge will be dismissed unless the Charging Party seeks a repugnanty review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School District,
supra.)
If you have any questions, please call me at the telephone number listed above.
Sincerely,
Marie A. Nakamura
Regional Attorney
MAN
LA-CE-666-H
September 9, 2002
Page
10
An employee shall not suffer reprisals for participating in union
activities.
As
sucl:i,
under the same legal standard set forth above, this allegation must also be deferred to
arbitration.
If
there are any factual inaccuracies in this letter or additional facts that 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 have the case number written on the
top right hand comer
of
the charge form. 	The amended charge must be served on the
respondent's representative and the original proof
of
service must be filed with PERB.
If
I do not receive an amended charge or withdrawal from you before, Monday, September
16, 2002, I will dismiss the unilateral change and discrimination violations. In addition I
will defer the remaining allegations to arbitration and they will be placed in abeyance until
such time as the arbitration process has concluded. Following the arbitration
of
this matter, the
charge will be dismissed unless the Charging Party seeks a repugnancy review by PERB
of
the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School District,
supra.)
If
you have any questions, please call me at the telephone number listed above.
Sincerely,
/'l~~
Marie A. Nakamura
Regional Attorney
MAN