Trustees of the California State University (San Marcos) (PERB 2195H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STA TE
lJNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1039-H
PERB Decision No. 2195-H
August 12, 2011
Appearance: Marc
D.
Mootchnik, University Counsel, for Trustees
of
the California State
University (San Marcos).
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDfN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Trustees
of
the Caiifornia State University
(San Marcos) (CSU), to a proposed decision by an administrative law judge (ALJ). The ALJ
determined that CSU violated section 3571(a)
of
the Higher Education Employer-Employee
Relations Act (HEERA)1 by retaliating against an employee for having engaged in protected
activities.
The Board has reviewed the proposed decision and the entire record in light
of
the
relevant law. Based upon this review, the Board finds that the complaint should have been
dismissed based upon the parties' settlement agreement entered into prior to the hearing in this
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

matter. Accordingly, the Board reverses the ALJ's proposed decision and dismisses the case
for the reasons set forth below.
FACTUALBACKGROUND2
On May 20, 2008, the California State University Employees Union (CSUEU) filed an
unfair practice charge with the Board alleging that CSU: (1) unilaterally transferred bargaining
unit work to non-bargaining unit employees; and (2) interfered with protected rights exercised
by employee and CSUEU bargaining representative Cesar Aguilar (Aguilar). CSUEU
subsequently amended the charge to add the allegation that CSU also retaliated against
employee Rafael Lopez (Lopez) for having engaged in protected activities by filing a police
report against him after he filed several grievances. On October 27, 2008, the PERB Office
of
the General Counsel issued a complaint on the allegations
of
interference concerning Aguilar
but issued a partial dismissal letter dismissing the allegations
of
unilateral transfer
of
work and
retaliation against Lopez.
On November 17, 2008, CSUEU appealed the partial dismissal to the Board.	
V
✓
hile
that appeal was pending before the Board, on September 25, 2009, the parties attended a
settlement conference before a PERB Board agent. During that conference, the parties entered
into a written settlement agreement. The caption
of
the settlement agreement lists both the
instant case and another unfair practice charge filed by CSUEU, Case No. LA-CE-1062-H.
The settlement agreement stated, in relevant part:
7. 	Unfair Practice Charges Before PERB
consideration of the foregoing, CSUEU hereby withdraws
Unfair Practice Charge Nos. LA-CE-1039-H and 	1062-H
with prejudice.
Only those facts relevant to the issues addressed in this decision are set forth herein.
2

This Settlement Agreement does not constitute an admission
of
wrongdoing, contract or statutory violation, or liability on the part
of
any party to this agreement.
This Settlement Agreement represents a full and complete
resolution
of
the claims and disputes between the parties based
upon the above-referenced matter.
This Settlement Agreement shall not be precedential and shall
only apply to CSUSM.
Neither party requested that the appeal from partial dismissal then pending before the
Board be withdrawn.
On October 15, 2009, the Board issued its decision on the appeal from partial dismissal,
Trustees
of
the California State University (San Marcos) (2009) PERB Decision No. 2070-H
(San Marcos 1).3 In that decision, the Board affirmed the dismissal
of
the unilateral transfer
of
work allegation but remanded the matter to the Office
of
the General Counsel for issuance
of
a
complaint on the retaliation allegation involving Lopez. The General Counsel issued a
complaint on November 10, 2009 alleging that CSU violated HEERA section 357l(a) by
retaliating against Lopez. 4
On December 9, 2009, CSU filed a motion to dismiss the complaint on the basis that
the charge was settled in its entirety on September 25, 2009. The ALJ denied the motion on
June 21, 2010, finding that PERB lacked jurisdiction to enforce or interpret the parties'
agreement and that the parties did not clearly intend to include the Lopez matter in their
agreement. 5
At the time it issued its decision, the Board panel was not aware of the parties'
settlement discussions or the existence of the September 25, 2009 settlement agreement.
4 The complaint issued on November 10, 2009 did not include the allegations set forth
in the prior complaint in the same case issued on October 27, 2008.
5 On September 7, 2010, the ALJ denied a subsequent motion to dismiss on the basis
that CSU's conduct was privileged.
3

A hearing was held before the ALJ on October 6, 2010. On December 3, 2010, the ALJ
issued a proposed decision finding that CSU violated HEERA section 3571(a) by retaliating
against Lopez for having engaged in protected activity.
CSU'S EXCEPTIONS
CSU asserts the following exceptions to the ALJ's proposed decision:
1.	
The matter was fully settled by the parties and must therefore be dismissed;
2.	
The alleged adverse action
of
filing a police report was absolutely privileged
under Civil Code section 47(b);
3.	
CSU was prejudiced by a change in the theory advanced by CSUEU to support
its claim that Lopez engaged in protected activities; and
4.	
The finding
of
retaliation was not supported by the evidence.6
DISCUSSION
Pursuant to PERB Regulation 32320(a),7 PERB has the discretion to allow the
withdrawal
of
a charge and complaint and to vacate the underlying proposed decision.
(ABC Un(fied School District (1991) PERB Decision No. 831 b (ABC School District);
Orange Unified School District (2001) PERB Decision No. 1437 (Orange School District).)
PERB Regulation 32320(a), provides, in pertinent part:
(a) The Board itself may:
(
1)
Issue a decision based upon the record
of
hearing, or
(2) Affirm, modify or reverse the proposed decision, order the
record re-opened for the taking of further evidence, or take such
other action as it considers proper.
6 In addition, CSU takes exception to several of the ALJ's factual findings. 	CSUEU did
not file a response to CSU' s exceptions.
7 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4

When faced with a request to withdraw a case that has reached the Board itself, the
Board reviews the request to determine whether granting it would effectuate the purposes
of
the governing statute. (Trustees
of
the California State University (2003) PERB Decision
No. 1514-H (Trustees); City
of
Lompoc (2007) PERB Decision No. 1879-M; Orange School
District;
ABC
School District.)
This case bears a striking similarity to Office
of
the Santa Clara County Superintendent
of
Schools (1982) PERB Decision No. 233a (Santa Clara Superintendent). 	In that case, the
parties agreed, as part
of
a complete settlement
of
two unfair practice charges, to withdraw
both cases from PERB. 	While the charging party requested withdrawal
of
one
of
the charges,
the respondent inadvertently neglected to withdraw its exceptions to a proposed decision
regarding the other charge, and a Board decision issued. On reconsideration, the Board
dismissed the remaining complaint and charge and vacated both its prior decision and that
of
the hearing officer, finding that the settlement agreement was not repugnant to the purposes
of
the governing statute and was consistent with the Board's longstanding policy favoring
settlement.
Here, although CSUEU has not joined in CSU' s request to dismiss this case, the
settlement agreement very clearly states that the parties have settled the dispute that formed the
basis
of
the instant unfair practice charge and agreed to withdraw the charge with prejudice,
and that the agreement represents a full and complete resolution
of
the claims and disputes
between the parties based upon that charge. (Trustees; Orange School District.) Nothing in
the agreement indicates any intention to exclude from its scope the issues that were then
pending on appeal before the Board. Moreover, CSUEU has not filed any opposition to CSU's
exceptions. One
of
the express purposes of HEERA is "the development
of
harmonious and
cooperative labor relations." (HEERA, § 3560(a).) It is the Board's policy to favor voluntary
5

settlement
of
disputes. (Dry Creek Joint Elementary School District (1980) PERB Order
No. Ad-81
a;
Santa Clara Superintendent.) Therefore, given the parties clear agreement that
the charge in this case would be withdrawn, the Board concludes it effectuates the purposes
of
HEERA to permit withdrawal
of
the unfair practice charge, dismiss the complaint with
preJu
1ce,
anu vacate tue proposeu uec1s10n. 8	. d' 	,-l 	i.. 	,-l ,-l 	• •
In reaching this decision, we are mindful
of
HEERA section 3563.2(b), which states:
The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation
of
any agreement that would not also
constitute an unfair practice under this chapter.
It is a fundamental rule
of
statutory construction that the intent
of
the Legislature
should be examined in order to effectuate the purpose
of
the law. (Long Beach Community
College District (2003) PERB Decision No. 1564 (overruled in part on other grounds,
Long Beach Community College District (2009) PERB Decision No. 2002), citing Moyer
v.
Workmen's Comp. Appeals Bd. (1973) 10
Cal.3d
222, 230 (Moyer).) In determining intent, it
is important to examine the language
of
the statute and to give effect to each word. (Moyer at
p. 230.) However, it is also a fundamental rule
of
statutory construction that a statute must be
construed in context, "keeping in mind the nature and obvious purpose
of
the statute where
they appear.'' (Id. at p. 230.) "[T]he various parts
of
a statutory enactment must be
harmonized by considering the particular clause or section in the context
of
the statutory
framework as a whole." (Id. at p. 230.)
Section 3563.2 sets forth PERB's jurisdiction to investigate and remedy unfair practices
under HEERA. Subdivision (a)
of
section 3563.2 authorizes any employee, employee
organization, or employer to file an unfair practice charge with PERB, subject to the limitation
Given our determination, the Board need not and does not address the remaining
issues raised in the exceptions.
6

that PERB shall not issue a complaint based upon an alleged unfair practice occurring more
than six months prior to the filing
of
the charge. 	Subdivision (b) further provides both that
PERB lacks the authority to enforce agreements between the parties and that PERB is
prohibited from issuing a complaint on a charge based on an alleged violation
of
an agreement
that would not also constitute an unfair practice.
PERB has interpreted section 3563.2(b) and identical language under the Educational
Employment Relations Act (EERA)9 to prohibit PERB from issuing a complaint based upon an
alleged breach
of
an agreement unless the breach would also constitute an unfair practice.
(Regents
of
the University
of
California (1990) PERB Decision No. 849-H; Regents
of
the
University ofCal(fornia (2010) PERB Decision No. 2105-H; Clovis Unified School District
(1986) PERB Decision No. 597 (Clovis).) Thus, in Clovis the Board upheld the dismissal
of
a
charge alleging that the respondent violated EERA section 3541.5(a), (b), and (c) by failing to
comply with a settlement agreement reached in an earlier unfair practice case, finding that the
charge failed to establish that the alleged breach amounted to a change in policy having a
generalized effect or continuing impact upon the terms and conditions
of
employment
of
bargaining unit members so as to constitute an unlawful unilateral change. (Ibid., citing Grant
Joint Union High School District (1982) PERB Decision No. 196.) Similarly, in State
of
California (Department
of
Developmental Services) (1996) PERB Decision No. 1150-S, the
Board upheld the dismissal
of
a charge alleging that the respondent breached an agreement
settling a grievance, finding no change in policy.
Given PERB's longstanding interpretation of section 3563.2(b), we believe that the
prohibition against enforcing agreements between the parties must be read in the overall
context of PERB' s authority to issue an unfair practice complaint. Thus, construing both
9 EERA is codified at section 3540 et seq.
7

clauses
of
section 3563.2(b) together, we conclude that the purpose
of
including this
prohibition was to give effect to the second clause
of
section 3 563 .2(b) prohibiting PERB from
issuing a complaint based upon an alleged breach
of
an agreement that would not also
constitute an unfair practice. 	We find nothing in that section, however, that would limit
PERB' s authority to honor the terms
of
the parties' agreement, reached before a Board agent,
to terminate all proceedings before PERB. 	We further find this construction to be consistent
with the discretion vested in PERB under PERB Regulation 32320(a) to allow the withdrawal
of
an unfair practice charge when to do so would effectuate the purposes
of
EERA.
The dissent argues that the majority's recognition
of
the parties' withdrawal violates the
prohibition against enforcing settlement agreements set forth in HEERA section 3563.2.
	We
respectfully disagree. As discussed above, we conclude that the limitation against enforcing
settlement agreements set forth in HEERA section 3563 .2(b) simply does not apply to this case,
where no party has requested that PERB issue a complaint based upon an alleged breach
of
a
settlement agreement, nor is any party asking PERB to enforce the substantive terms
of
a
settlement agreement by providing relief external to PERB's own procedures. Thus, PERB is
not enforcing the terms
of
a settlement agreement in violation
ofHEERA
section 3563.2(b).
Instead, CSU has simply asserted, as a defense to the complaint issued by PERB on remand
following the issuance
of
San lvfarcos I, that the underlying charge has been withdrawn pursuant
to the parties' agreement reached utilizing the Board's own settlement procedures. 10 Honoring
this agreement validates the Board's settlement process, is consistent with our mission to
promote harmonious labor relations and is within our authority pursuant to PERB
10 In its answer to the complaint, CSU alleged that the complaint and the allegations
therein are moot.
8

Regulation 32320(a). 	(Santa Clara Superintendent; City
of
Lompoc (2007) PERB Decision
No. 1879-M.)
ORDER
It is hereby ORDERED that the unfair practice charge and complaint issued in Case
No. LA-CE-1039-H is hereby WITHDRAWN WITH PREJUDICE; the complaint is
DISMISSED WITH PREJUDICE; and the proposed decision issued on December 3, 2010 is
hereby VACATED.
Member McKeag joined in this Decision.
Member Huguenin's dissent begins on page 10.
9

HUGUENIN, Member, dissenting: The rule adopted today by the majority is one-sided.
Under this rule, the Public Employment Relations Board (PERB) may enforce only portions
of
parties' settlement agreements, not their entire agreement. I explain.
Settlement agreements between parties to unfair practice cases are a trade: withdrawal by
a charging party
of
its charge allegations in exchange for either performance or promise,
or
both,
by the respondent. 	Under the rule the majority announces today, PERB will continue to tell
charging parties that it cannot enforce the performance or promise due from the respondent,
except where the respondent's failure or refusal to perform independently constitutes an unfair
practice under our statutes. Such cases are rare indeed, as most settlement agreements do not
contain promised performance
of
sufficient scope that failure or refusal amounts to a unilateral
change under our case law. Thus, under the rule the majority adopts today, PERB will give a
respondent the benefit
of
its bargain by dismissal
of
a charge, but refuse a charging party the
benefit
of
its bargained for exchange. This is one-sided, lacking the evenhandedness that should
be PERB' s hallmark.
In my view, PERB should adhere to its prior consistent construction
of
our statutes and
refuse to enforce settlement agreements for either side, or alternatively, in reliance on ample
legislative history, PERB should declare that the restriction on enforcing agreements
of
the
parties was intended by the Legislature to apply only to collective agreements, rendering unfair
practice settlement agreements fully enforceable by PERB.