Santa Monica Community College District (PERB 2303E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SANTA MONICA COLLEGE FACULTY
ASSOCIATION,
Charging Party, Case No. LA-CE-5489-E
v. PERB Decision No. 2303
SANTA MONICA COMMUNITY COLLEGE December 21, 2012
DISTRICT,
Respondent.

Appearances: Lawrence Rosenzweig, Attorney, for Santa Monica College Faculty
Association; Fagen, Friedman & Fulfrost by Anna J. Miller, Attorney, for Santa Monica
Community College District.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Santa Monica Community College District
(District) to the proposed decision (attached) of a PERB administrative law judge (ALJ)
finding that the District violated the Educational Employment Relations Act (EERA)' by
failing to provide relevant and necessary information to the Santa Monica College Faculty
Association (Association) pertaining to a mandatory subject of bargaining. The ALJ
determined that the District breached its duty to bargain in good faith when it refused to

provide the Association with a list of part-time faculty who did not have a retirement election

form in their file.

‘ EERA is codified at Government Code section 3540 et seq.

The Board has reviewed the proposed decision and the record in light of the District's
exceptions and the relevant law. Based on this review, we find the ALJ's proposed decision to
be well-reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the ALJ' s proposed decision as the decision of the Board itself.2
DISCUSSION
In its exceptions, the District raises the same arguments it presented to the ALJ in
support of its position that the information requested by the Association was not necessary or
relevant to the Association's right to represent bargaining unit employees and, on that basis,
objects to the remedy ordered.3 We agree with the ALJ's analysis of the merits of this case
and, therefore, find the remedy appropriate.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Santa Monica Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et seq. The
District violated EERA by refusing to provide information that is relevant and necessary to the
Santa Monica College Faculty Association's (Association) right to represent bargaining unit
employees.
However, we do not adopt the sentence on page 8 of the ALJ's proposed decision,
which reads: "There is no evidence the Association is seeking to influence the operation of the
[California State Teachers' Retirement System] ~-•u--, .. - .. system or to represent members
before CalSTRS." Because the information is relevant and necessary to the discharge of the
Association's representational duties under EERA, the fact that a union may or may not also
use that information to represent employees 	other forums does not negate its right to obtain
the information to which it is entitled under EERA.
3 The District does not except to the ALJ' s determination that it waived its prior claims
that the requested information was protected by the attorney-client and work product privileges
and that it failed to establish that the release of the information would violate employee privacy
rights. 	An exception not specifically urged shall be waived. (PERB Reg. 32300(c); PERB
Regs. are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
2

Pursuant to section 3541.S(c)
of
the Government Code, it hereby is ORDERED that the
District and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Refusing to provide information to the Association that is relevant and
necessary to its representational duties.
2.	
Denying bargaining unit employees their right to be represented by the
Association. 
3.	
Denying the Association the right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Provide the Association with an updated list
of
part-time faculty who do
not have a retirement election form in their personnel file.
2.	
Within ten ( 10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
the District, indicating that it will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
3

Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the Association.
Chair Martinez and Member Huguenin joined in this Decision.
4

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Santa Monica College Faculty Association
v.
Santa Monica
Community College District, Unfair Practice Case No. LA-CE-5489-E, in which all parties
had the right to participate, it has been found that the Santa Monica Community College
District violated the Educational Employment Relations Act (EERA), Government Code
section 3540 et seq.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Refusing to provide information to the Santa Monica College Faculty
Association (Association) that is relevant and necessary to its representational duties.
2. 	Denying bargaining unit employees their right to be represented by the
Association. 
3.	
Denying the Association the right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Provide the Association with an updated list
of
part-time faculty who do not
have a retirement election form in their personnel file.
Dated: 	SANTA MONICA COMMUNITY COLLEGE
DISTRICT
By: Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MONICA COLLEGE FA CUL TY
ASSOCIATION,
Charging Party,
V.
SANTA MONICA COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5489-E
PROPOSED DECISION
(June 27, 2012)
Appearances: Lawrence Rosenzweig, Attorney, for Santa Monica College Faculty
Association; Fagen, Friedman & Fulfrost by Howard A. Friedman, Attorney, for Santa Monica
Community College District.
Before Robin W. Wesley, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that an employer refused to provide information that is
relevant and necessary to its right to represent its members. The employer denies committing
any unfair practices.
On September 14, 2010, the Santa Monica College Faculty Association (Association),
filed an unfair practice charge against the Santa Monica Community College District (District).
On April 18, 2011, the Office
of
the General Counsel
of
the Public Employment
Relations Board 	or Board) issued a complaint that alleged the District breached its duty
to bargain in good faith when it refused to provide the requested information. By this conduct,
the District is alleged to have violated the Educational Employment Relations Act (EERA),
section 3543.S(a), (b) and (c). 1
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

The District answered the complaint on May 12, 2011, denying the substantive
allegations and asserting affirmative defenses.
The parties met with a Board agent in June 2011 to discuss settlement, but the matter
was not resolved.
A formal hearing was held in PERB's Glendale Office on January 26, 2012. On
February 17, 2012, the case was transferred to the undersigned for proposed decision pursuant
to PERB Regulation 32168(b).2 Following the filing
of
briefs, the case was submitted for
decision on March 16, 2012.
FINDINGS OF FACT
The District is a public school employer within the meaning
of
EERA
section 3540.1 (k). The Association is the exclusive representative
of
full-time and part-time
faculty instructors at Santa Monica College pursuant to the EERA.
Mitra Moassessi (Moassessi) is a faculty member and serves as President
of
the
Association. Marcia Wade (Wade) is the District's Vice President for Human Resources.
The Association and the District are parties to a collective bargaining agreement (CBA)
effective August 21, 2007 through August 23, 2010. Article 25
of
the CBA addresses
retirement benefits for part-time faculty, stating, in part:
25.1 	For part-time faculty who do not belong to a public
retirement system, enrollment in one
of
the following retirement
programs is mandatory.
25.1.1 	STRS (State Teacher's Retirement System) Defined
Benefits plan:
...
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

25.1.2 STRS (State Teacher's Retirement System) Cash Balance
Plan:
...
25.1.3 LARISA: The District sponsored alternative retirement
plan
....
25.2 Since a part-time faculty is subject to OBRA 90 (Omnibus
Budget Reconciliation Act
of
1990) upon employment, a new
part-time faculty shall select among the retirement plan options
prior to or upon the beginning date
of
employment.
25.2.1 	After the initial selection, the part-time faculty may make
a change to another available plan subject to existing statue [sic]
and government regulations. The_office
of
Human Resources
will provide the part-time faculty member with information as to
each
of
the retirement options.
(Emphasis added.)
The provisions
of
the State Teachers Retirement Law are contained in the California
Education Code.3 Education Code section 22455.5(b) provides:
Employers shall make available criteria for membership,
including optional membership, in a timely manner to all persons
employed to perform creditable service subject to coverage by the
Defined Benefit Program, and shall inform part-time and
substitute employees, within 30 days
of
the date
of
hire, or by
March
1,
1995, whichever is later, that they may elect
membership in the plan's Defined Benefit Program at any time
while employed. Written acknowledgment by the employee shall
be maintained in employer files on a form provided by this
system.
(Emphasis added.)
During a 2009-2010 internal audit, the District discovered that some part-time faculty
did not have the California State Teachers' Retirement System (CalSTRS) retirement eiection
_j
Education Code section 22000 et seq.
3

form
in
their personnel file. 	The District subsequently contacted CalSTRS and CalSTRS
initiated an audit pursuant to Education Code section 22206.4
In July 2010, the District Office
of
Human Resources sent a letter to certain part-time
faculty. 	The letter stated,
in
part:
The Office
of
Human Resources has conducted an audit
of
the
personnel records for all adjunct faculty members. Our records
indicate that you are a member
of
an alternative retirement
system and have
NOT
completed a CalSTRS Retirement System
Election Form (ES 350) declining membership in the CalSTRS
Defined Benefit Program.
At this time you are a member
of
STRS Cash Balance. It is
critical to our records that you complete the enclosed CalSTRS
Retirement System Election Form (ES 350) to acknowledge that
at the time
of
hire you declined membership to the defined
benefit program and elected membership to an alternative plan.
(Emphasis in original.)
Thereafter, Moassessi began receiving phone calls from part-time faculty, reporting that
when they were hired they were not informed
of
the option to enroll in the STRS Defined
Benefit plan. Moassessi contacted the Human Resources office and requested a list
of
the
individuals who received the letter. The District provided the listvia email two days later.
On August 23, 2010, Moassessi sent an email to Wade checking on the status
of
the
CalSTRS audit. 	Wade replied on August 24, 2010, stating the District did not yet havethe
results
of
the CalSTRS audit. 	Wade continued:
We did, however, conduct an internal audit
of
all part time
faculty personnel files in the HR Office. All active part-time
faculty members for Spring 2010
and
Fall 20 l 0, who did not have
4 Education Code section 22206(a) provides:
As often as the [State Retirement] board determines necessary, it
may audit or cause to be audited the records of any public
agency.
4

proper documentation in their files, will be contacted by HR
personnel for completion
of
the CalSTRS election form
....
Moassessi and Wade exchanged several more email messages on the subject. On
September 2, 2010, Moassessi wrote:
The Faculty Association hereby requests an updated list
of
the
part time faculty who, based on the HR audit, do not have a
CalSTRS Retirement System Election Form (ES 350) in their
file
....
Wade replied on September 2, 2010:
The list
of
faculty members was assembled for legal counsel and
is protected by Attorney-Client and Work Product Privileges.
Therefore, I am unable to provide you with a copy
of
the list at
this time. The College is conducting a thorough review
of
this
matter to ensure a just and legally compliant resolution. In
addition we are cooperating with STRS as it conducts an audit
of
District records.
The Association filed this unfair practice charge on September 14, 2010.
On January 12, 2012, just prior to the hearing in this case, the District sent a ietter to
certain part-time faculty advising them to complete the CalSTRS retirement election form.
The letter concluded:
Failure to return the Permissive Election Form (ES350) will
result in future assignments not being assigned to you,
commencing with the Spring 2012 semester.[5l
5 The District asserts this letter is inadmissible because it was issued nearly a year and a
half after the Association filed its charge. Even
if
admissible, the District contends it does not
demonstrate the requested information is relevant and necessary because Article 6. 7 of the
parties' CBA authorizes the District to determine whether a part-time faculty member will
receive an assignment for a particular semester. The ALJ presiding at the hearing admitted the
letter into evidence, and I find the letter relevant.
5

ISSUE
Did the District breach its duty to bargain in good faith when it refused to provide the
requested information?
CONCLUSIONS OF LAW
An exclusive representative is entitled to all information that is relevant and necessary
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 the relevance
of
the requested information. (Trustees
of
the California State
University (1987) PERB Decision No. 613-H.) Information pertaining to mandatory subjects
of
bargaining is so intrinsic to the employer-employee relationship that it is presumptively
relevant. (Ventura County Community College District (1999) PERB Decision No. 1340.)
Failure to provide such information is a per se violation
of
the duty to bargain in good faith.
If
the information does
1;1ot
pertain to a mandatory subject
of
bargaining, it is not
deemed presumptively relevant, and the union has the burden
of
demonstrating that the
information is otherwise relevant and necessary to its right to repres·ent its members. (State
of
California (Departments
of
Personnel Administration and Transportation) (1997) PERB
Decision No. 1227-S.)
An employer can refuse to release information that is otherwise relevant and necessary
if
it has a valid defense, such
as
legal privileges, or the release will compromise employee
privacy rights. (Los Rios Community College District (1988) PERB Decision No. 670;
Modesto City Schools and High School District (1985) PERB Decision No. 479.)
The
employer cannot, however, simply ignore a union's request for information. (State
of
6

California (Departments
of
Personnel Administration and Transportation), supra, PERB
Decision No. 1227-S.)
The Association contends the requested list
of
part-time faculty is relevant and
necessary, claiming that an accurate list would enable it to advise its members about available
benefits and allow the Association to craft bargaining proposals. The Association notes the
District provided a preliminary list
of
affected employees, and disputes any legal privileges
preclude release
of
an updated list.
The District argues the list is not relevant and necessary to the Association's duty
of
representation as CalSTRS has the sole authority to determine whether an employer has
adequately administered the program. Furthermore, the District asserts the Association's duty
of
fair representation does not extend to information pertaining to outside forums such as
CalSTRS. The District also raises defenses that include attorney-client and attorney work
product privileges, and employee privacy rights.
The Association requested a list
of
part-time faculty who did not have a retirement
election form in their file. 	The District had previously informed the Association that it had
completed an internal audit and determined which employees were missing the form. The
information is related to an employee's option to select retirement plans as set forth in the
parties' CBA. The Board has concluded that retirement benefits for current employees is a
mandatory subject
of
bargaining. (County
of
San Joaquin (2003) PERB Decision No. 1570-M;
Temple City Unified School District (1989) PERB Decision No. 782.) Thus, it is clear the
information pertaining to retirement benefit options for current employees is presumptively
relevant, and is also necessary to the Association's representation ofits members.
7

The District argues the information is not relevant and necessary because CalSTRS
controls the administration
of
the retirement program and because the Association has no duty
under EERA to represent members before CalSTRS. The District's claims are without merit.
The information
is
relevant to the matter
of
retirement benefit options for current employees.
There is no evidence the Association is seeking to influence the operation
of
the CalSTRS
retirement system or to represent members before CalSTRS. Thus, the information is relevant
and necessary to the Association's right to represent bargaining unit employees.
The District raised several defenses to its refusal to provide the requested information,
including attorney-client and attorney work product privileges.6 The attorney-client privilege
provides that a client has a privilege to refuse to disclose confidential communications between
the client and his or her lawyer. 7 The attorney work product privilege affords the privacy
necessary to permit an attorney to prepare cases for trial, allowing for the investigation
of
both
favorable and unfavorable aspects
of
the case, and prevents opposing counsel from taking
unfair advantage
of
their adversary's efforts. 8
The party claiming the privilege has the burden to provide the preliminary facts
necessary to show the information sought to be disclosed falls within the privilege. (Wellpoint
Health Networks
v.
Superior Court (1997) 59 Cal.App.4th
110, 123.) Documents prepared
independently by a party do not become privileged communications or work product simply
6 At the time the Association requested an updated list, 	District denied the request
asserting attorney-client and work product privileges. In its post-hearing brief, the District
addresses only employee privacy rights.
7 Evidence Code section 954.
8 Code of Civil Procedure section 2018.030.
8

because they are turned over to counsel.
(Id.
at p. 119.) Disclosure
of
a significant part
of
a
privileged communication by the client or attorney, without coercion, waives the attorney-
client privilege. (Evidence Code, § 912;
O_XY
Resources California LLC
v.
Superior Court
(2004)
115
Cal.App.4 th 874, 888.) Further, the work product privilege may be waived by
conduct that is inconsistent with such claim. (BP Alaska Exploration, Inc.
v.
Superior Court
(1988) 199 Cal.App.3d 1240, 1261.)
When the Association first learned the District had asked certain part-time faculty to
submit the retirement election form, it requested a list
of
the affected employees. The District
provided the list within two days. After the District informed the Association it had completed
its internal audit, the Association requested an updated list. At that time, the District's Human
Resources Office claimed attorney-client and work product privileges. Other than this initial
statement, the District has made no assertion or showing that the information falls within the
stated privileges. The District does not cite the privileges in its post-hearing
brief~
and makes
no argument that privileges excuse it from providing the requested information. Further, the
District's release
of
a preliminary list
of
affected part-time faculty demonstrates that the
District has waived any privilege.
The District also argues the information sought by the Association "potentially invades
individuals' privacy rights." The District contends that because employees have options
through CalSTRS to address their retirement benefit concerns, distribution
of
the list would
violate employee privacy rights because the Association has no authority to address these
concerns.
9

Personal privacy rights may limit requests for confidential information. (Modesto City
Schools and High School District, supra, PERB Decision No. 479.) Where a union has
established that the requested information is relevant and necessary, the burden is on the
parting holding the information to show that disclosure would compromise the right
of
privacy.
(Id. at p. 10; Golden Empire Transit District (2004) PERB Decision No. 1704-M.) The Board
has stated, "The exclusive representative's ability to communicate with its members is
fundamental to its role as bargaining representative. Disclosure is mandated absent a
compelling need for privacy." (Golden Empire Transit District, supra, PERB Decision
No. 1704-M, p. 8.)
The District claims that release
of
the names
of
the part-time faculty who do not have
the retirement election form in their personnel files "potentially invades" their privacy rights.
The District's asserts that because there are avenues through CalSTRS for employees to
address retirement concerns, release
of
the names to the Association would infringe on their
privacy rights.
The Association seeks the information to determine whether the employees have been
fully informed
of
their retirement benefit options. The disclosure
of
the names
of
the affected
employees would allow the Association to fulfill its fundamental role to communicate with and
assist the part-time faculty in obtaining benefits under the contract. The District has not
demonstrated how 	names would infringe on the employees' privacy rights,
especially in light
of
the District's earlier 	the preliminary list
of
employees.
REMEDY
PERB has broad remedial powers to effectuate the purposes 	EERA. EERA
section 3541.5(c) provides:
10

The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
In this case, the District has been found to have violated EERA section 3543.S(c) by
refusing to provide information that is relevant and necessary to the Association's duty to
represent bargaining unit employees. By the same conduct, the District has interfered with
employee rights to be represented by the Association, and interfered with the Association's
right to represent bargaining unit employees, in violation
of
EERA section 3543.S(a) and (b).
It is appropriate therefore to order the District to cease and desist from this conduct. The
District is also ordered to provide the Association with an updated list
of
part-time faculty who
do not have a retirement election form in their personnel file. 	Finally, it is appropriate that the
District be required to post a notice that the District violated the EERA when it failed to
provide the requested information. (Placerville Union School District (1978) PERB Decision
No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Santa Monica Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et seq. 	The
District violated the EERA by refusing to provide information that is relevant and necessary to
the Santa Monica College Faculty Association's (Association) right to represent bargaining
unit employees.
11

Pursuant to section 3541.S(c)
of
the Government Code, it hereby is ORDERED that the
District and its representatives shall:
A.	
CEASE AND DESIST FROM:
1.	
Refusing to provide information to the Association that is relevant and
necessary to its representational duties.
2.	
Denying bargaining unit employees their right to be represented by the
Association.
3. 	Denying the Association the right to represent bargaining unit
employees.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Provide the Association an updated list
of
part-time faculty who do not
have a retirement election form in their personnel file.
2.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
the District, indicating that it will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. The District shall provide reports, in writing, as directed
12

by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the Association.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board
itself
within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in 	U.S. mail. (Cal. Code Regs., 	8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement 	exceptions and supporting brief must be served concurrently with its
upon each party to this proceeding. Proof of
	accompany 	copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
13