PERB Decision No. 1823H

Full text

VACATED by Trustees of the California State University (2008)
PERB Decision No. 1823a-H
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-784-H
PERB Decision No. 1823-H
February 23, 2006
Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for California
Faculty Association; Donald A. Newman, University Counsel, for Trustees of the California
State University.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
DlJJ\-JCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Trustees of the California State University (CSU)
to an administrative law judge's (ALJ) proposed decision (attached). The unfair practice
charge alleged that CSU violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by conditioning agreement on the parties' memorandum of understanding (MOU)
on the waiver of a statutory right. The California Faculty Association (CFA) alleged that this
conduct constituted a violation of section 3571 of HEERA.
We have reviewed the entire record in this case, including, but not limited to, the unfair
practice charge, answer to the complaint, CFA's opening brief, post-hearing briefs from both
parties, and CFA's reply brief to the CSU post-hearing rebuttal brief, exceptions filed by CSU,
1HEERA is codified at Government Code section 3560, et seq.

CFA's response, and CSU's request for oral argument. We find the proposed decision of the
ALJ to be free of prejudicial error and adopt it as the decision of the Board itself.
DISCUSSION
CSU requested oral argument in this case stating that the issues are "fundamental
principles of shared governance and peer review and affect the manner in which the academic
community functions and participates in its own Governance." (CSU's Request for Oral
Argument.)
PERB Regulation 32315 provides:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
CSU has met the requirements of this section but the request is denied by the Board
because it is determined to be unnecessary in this case because the briefs submitted adequately
presented the issues and positions of the parties, and the factual record is sufficient to support
the Board's decision. (Anaheim Union High School District (1982) PERB Decision No. 201.)
The issues here surround restrictions on the authority of arbitrators. Education Code
section 89542.5 was enacted by the Legislature before the enactment of HEERA and was then
later amended by the Legislature. It provides that the decision of the arbitrator is final. Over
the years CSU has issued executive orders related to the grievance/disciplinary processes that
limited the authority of the arbitrator.
HEERA section 3572.5(a) provided that the Education Code section could be
superseded by an MOU. Legislation went into effect January 1, 2002, that deleted Education
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2
CF A's response, and CSU's request for oral argument. We find the proposed decision of the
ALJ to be free of prejudicial error and adopt it as the decision of the Board itself.
DISCUSSION
CSU requested oral argument in this case stating that the issues are "fundamental
principles of shared governance and peer review and affect the manner in which the academic
community functions and participates in its own Governance." (CSU's Request for Oral
Argument.)
PERB Regulation 323152 provides:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
CSU has met the requirements of this section but the request is denied by the Board
because it is determined to be unnecessary in this case because the briefs submitted adequately
presented the issues and positions of the parties, and the factual record is sufficient to support
the Board's decision. (Anaheim Union High School District (1982) PERB Decision No. 201.)
The issues here surround restrictions on the authority of arbitrators. Education Code
section 89542.5 was enacted by the Legislature before the enactment of HEERA and was then
later amended by the Legislature. It provides that the decision of the arbitrator is final. Over
the years CSU has issued executive orders related to the grievance/disciplinary processes that
limited the authority of the arbitrator.
HEERA section 3572.5(a) provided that the Education Code section could be
superseded by an MOU. Legislation went into effect January 1, 2002, that deleted Education
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

Code section 89542.5 from that supersession section. That change stated that the Education
Code section could be superseded by an MOU only if the agreement provided more than the
minimum level of benefits or rights set forth in that section.
It is clear from the legislative history and plain language of the statutory changes
brought about by that legislation that it caused a change and established that a heightened
standard of review cannot be imposed on the arbitrator by the parties in their collective
bargaining agreement or memorandum of understanding. We, therefore, find that the ALJ
correctly determined the new legislation set minimum statutory rights that were not subject to
negotiations and correctly decided the case.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA), Government Code section 3571.
Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its
administrators and representatives shall:
CEASE AND DESIST FROM:
1 . Insisting to impasse on a proposal that would limit the remedial authority
of an arbitrator in faculty status disputes, and thereby unlawfully condition agreement on
waiver of a statutory right.
2. Interfering with the right of employees to be represented by the
California Faculty Association (CFA), the exclusive representative of Bargaining Unit 3.
3
Code section 89542.5 from that supersession section. That change stated that the Education
Code section could be superseded by an MOU only if the agreement provided more than the
minimum level of benefits or rights set forth in that section.
It is clear from the legislative history and plain language of the statutory changes
brought about by that legislation that it caused a change and established that a heightened
standard of review cannot be imposed on the arbitrator by the parties in their collective
bargaining agreement or memorandum of understanding. We, therefore, find that the ALJ
correctly determined the new legislation set minimum statutory rights that were not subject to
negotiations and correctly decided the case.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA), Government Code section 3571.
Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its
administrators and representatives shall:
A. A. CEASE AND DESIST FROM:
1. Insisting to impasse on a proposal that would limit the remedial authority
of an arbitrator in faculty status disputes, and thereby unlawfully condition agreement on
waiver of a statutory right.
2. Interfering with the right of employees to be represented by the
California Faculty Association (CF A), the exclusive representative of Bargaining Unit 3.
3

B. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1 . Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations in the CSU system where notices to Bargaining
Unit 3 employees are customarily posted, copies of the Notice attached hereto as an Appendix.
The Notice must be signed by an authorized agent of CSU, indicating that CSU will comply
with the terms of the 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.
2. 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. CSU shall provide reports, in writing, as directed by the General Counsel
or his/her designee. All reports regarding compliance with this Order shall be concurrently
served on CFA.
Members Whitehead and Shek joined in this Decision.
A
B. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1. Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations in the CSU system where notices to Bargaining
Unit 3 employees are customarily posted, copies of the Notice attached hereto as an Appendix.
The Notice must be signed by an authorized agent of CSU, indicating that CSU will comply
with the terms of the 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.
2. 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. CSU shall provide reports, in writing, as directed by the General Counsel
or his/her designee. All reports regarding compliance with this Order shall be concurrently
served on CF A.
Members Whitehead and Shek 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 Unfair Practice Case No. LA-CE-784-H, California Faculty
Association v. Trustees of the California State University, in which all parties had the right
to participate, it has been found that the Trustees of the California State University violated the
Higher Education Employer-Employee Relations Act, Government Code section 3571.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1 . Insisting to impasse on a proposal that would limit the remedial authority of an
arbitrator in faculty status disputes, and thereby unlawfully condition agreement on waiver of a
statutory right.
Interfering with the right of employees to be represented by the California
Faculty Association, the exclusive representative of Bargaining Unit 3.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-784-H, California Faculty
Association v. Trustees of the California State University, in which all parties had the right
to participate, it has been found that the Trustees of the California State University violated the
Higher Education Employer-Employee Relations Act, Government Code section 3571.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
I. Insisting to impasse on a proposal that would limit the remedial authority of an
arbitrator in faculty status disputes, and thereby unlawfully condition agreement on waiver of a
statutory right.
2. 2. Interfering with the right of employees to be represented by the California
Faculty Association, the exclusive representative of Bargaining Unit 3.
Dated: --------- Dated: TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
By: -------------- 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
CALIFORNIA FACULTY ASSOCIATION,
UNFAIR PRACTICE
Charging Party, CASE NO. LA-CE-784-H
V . PROPOSED DECISION
December 20, 2004
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Appearances: Rothner, Segall and Greenstone by Glenn Rothner, Attorney, for California
Faculty Association; Donald Newman and Janette Redd Williams, University Counsel, for
Trustees of the California State University.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
The California Faculty Association (CFA) initiated this action on October 15, 2003, by
filing an unfair practice charge against the Trustees of the California State University (CSU).
The Office of the General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint on December 4, 2003. The complaint alleges that CSU failed to
participate in the impasse procedure in good faith by insisting to impasse on a grievance
procedure that did not maintain contractual restrictions on arbitral authority in certain disputes
involving faculty. The complaint alleged:
3. On or about December 10, 2001, Charging Party and
Respondent initiated negotiations concerning Article 10
(grievance procedure) and Article 19 (disciplinary procedure) of
the parties' MOU, seeking to harmonize those provisions with the
requirements of Education Code section 89542.5. Beginning on
or about August 25, 2002, Charging Party and Respondent
participated in impasse procedures concerning these subjects
pursuant to Government Code sections 3590 through 3593.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-784-H
PROPOSED DECISION
December 20, 2004
Appearances: Rothner, Segall and Greenstone by Glenn Rothner, Attorney, for California
Faculty Association; Donald Newman and Janette Redd Williams, University Counsel, for
Trustees of the California State University.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
The California Faculty Association (CFA) initiated this action on October 15, 2003, by
filing an unfair practice charge against the Trustees of the California State University (CSU).
The Office of the General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint on December 4, 2003. The complaint alleges that CSU failed to
participate in the impasse procedure in good faith by insisting to impasse on a grievance
procedure that did not maintain contractual restrictions on arbitral authority in certain disputes
involving faculty. The complaint alleged:
3. On or about December 10, 2001, Charging Party and
Respondent initiated negotiations concerning Article 10
(grievance procedure) and Article 19 (disciplinary procedure) of
the parties' MOU, seeking to harmonize those provisions with the
requirements of Education Code section 89542.5. Beginning on
or about August 25, 2002, Charging Party and Respondent
participated in impasse procedures concerning these subjects
pursuant to Government Code sections 3590 through 3593.

4. On or about June 17, 2003, Respondent informed Charging
Party that it would not enter into an agreement on Article 10
unless the agreement preserved the existing contractual
limitations on an arbitrator's remedial authority to grant
appointment, reappointment, promotion or tenure.
CFA contends that the position adopted by CSU was unlawful under recently enacted
legislation sponsored by the union.
The complaint alleges that CSU, by conditioning agreement on the waiver of a statutory
right, failed and refused to participate in the statutory impasse procedure, in violation of the
Higher Education Employer-Employee Relations Act (HEERA or Act) section 3571(e). By
the same conduct, the complaint also alleges, CSU interfered with the right of employees to be
represented by CFA, in violation of section 3571(a).
CSU answered the complaint on December 23, 2003, generally denying all allegations
and setting forth a number of affirmative defenses. Denials and defenses will be addressed
below, as necessary.
A settlement conference was conducted by a Board agent on January 26, 2004, but the
matter was not resolved. Administrative Law Judge Thomas Allen conducted a formal hearing
in Los Angeles on June 8, 2004, and a briefing schedule was completed on September 8, 2004.
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code. In relevant part, section 3571
provides that it shall be unlawful for a higher education employer to:
Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
. . . . . . . . .
Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).
2
4. On or about June 17, 2003, Respondent informed Charging
Party that it would not enter into an agreement on Article 10
unless the agreement preserved the existing contractual
limitations on an arbitrator's remedial authority to grant
appointment, reappointment, promotion or tenure.
CFA contends that the position adopted by CSU was unlawful under recently enacted
legislation sponsored by the union.
The complaint alleges that CSU, by conditioning agreement on the waiver of a statutory
right, failed and refused to participate in the statutory impasse procedure, in violation of the
Higher Education Employer-Employee Relations Act (HEERA or Act) section 3571(e).1 By
the same conduct, the complaint also alleges, CSU interfered with the right of employees to be
represented by CFA, in violation of section 3571(a).
CSU answered the complaint on December 23, 2003, generally denying all allegations
and setting forth a number of affirmative defenses. Denials and defenses will be addressed
below, as necessary.
A settlement conference was conducted by a Board agent on January 26, 2004, but the
matter was not resolved. Administrative Law Judge Thomas Allen conducted a formal hearing
in Los Angeles on June 8, 2004, and a briefing schedule was completed on September 8, 2004.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code. In relevant part, section 3571
provides that it shall be unlawful for a higher education employer to:
(a) (a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
.................. • •••••••••••••••• t- ••••••••••••••••••
( e) (e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590).
2

The matter was reassigned to the undersigned on October 4, 2004. (PERB Regulation
32168(b).) It was submitted for proposed decision at that time.
FINDINGS OF FACT
Jurisdiction
CFA is an employee organization with the meaning of section 3562(1)(1) and the
exclusive representative of an appropriate unit of academic employees (Unit 3) within the
meaning of section 3562(i). CSU is a higher education employer within the meaning of section
3562(g).
Background
In the early 1970s, two bills were introduced in the Legislature to require CSU to
establish statutory grievance and disciplinary action procedures for academic employees.
Under the then-current grievance procedure, the final decision in such disputes was made by
the CSU chancellor. Both bills failed.
In 1974, CSU adopted Executive Order 201, which for the first time provided a role for
an arbitrator as part of a detailed grievance procedure. In brief, a grievance committee was
charged with initially determining if a grievance hearing should be held. If the committee's
decision was affirmative, an evidentiary hearing was held before a hearing officer or a faculty
grievance committee. The scope of authority given to the hearing officer or the committee was
limited to determining if procedural violations that substantially prejudiced the grievant had
occurred, evidence favorable to the grievant was ignored or the complained of action was
arbitrary. If such conduct was found, the committee or hearing officer would recommended a
resolution to the campus president. The president was bound to concur with the
recommendation except where it was not supported by the findings of the hearing officer or
committee, or the president concluded that compelling reasons existed for a different result.
3
The matter was reassigned to the undersigned on October 4, 2004. (PERB Regulation
32168(b). ) It was submitted for proposed decision at that time.
FINDINGS OF FACT
Jurisdiction
CFA is an employee organization with the meaning of section 3562(£)(1) and the
exclusive representative of an appropriate unit of academic employees (Unit 3) within the
meaning of section 3562(i). CSU is a higher education employer within the meaning of section
3562(g).
Background
In the early 1970s, two bills were introduced in the Legislature to requireCSU to
establish statutory grievance and disciplinary action procedures for academic employees.
Under the then-current grievance procedure, the final decision in such disputes was made by
the CSU chancellor. Both bills failed.
In 1974, CSU adopted Executive Order 201, which for the first time provided a role for
an arbitrator as part of a detailed grievance procedure. In brief, a grievance committee was
charged with initially determining if a grievance hearing should be held. If the committee's
decision was affirmative, an evidentiary hearing was held before a hearing officer or a faculty
grievance committee. The scope of authority given to the hearing officer or the committee was
limited to determining if procedural violations that substantially prejudiced the grievant had
occurred, evidence favorable to the grievant was ignored or the complained of action was
arbitrary. If such conduct was found, the committee or hearing officer would recommended a
resolution to the campus president. The president was bound to concur with the
recommendation except where it was not supported by the findings of the hearing officer or
committee, or the president concluded that compelling reasons existed for a different result.
3

Under Executive Order 201, the president's decision could be appealed to an arbitrator
on limited grounds. These included arbitrary action by the president, departure from
established procedures, and failure to consider substantial evidence favorable to the grievant.
If the arbitrator found affirmatively on any of these grounds, he or she next decided if the
president's decision should be upheld, the matter should be remanded to the campus for
review, or the committee's recommendation should be upheld. In reaching a conclusion, the
arbitrator did not hold a hearing. The decision to take any of the above actions was based only
on a review of the record, and the arbitrator was bound by the findings and conclusions of the
hearing officer on factual matters. The arbitrator's decision was final and binding on the
campus and the grievant.
Executive Order 201 remained in existence until 1976, when Assembly Bill (AB) 804
was enacted as Education Code section 24315. That section later was renumbered Education
Code section 89542.5. Under the grievance procedure in that section, a faculty hearing
committee hears grievances and disciplinary actions, and makes recommendations to the
campus president. If there is a disagreement between the committee and the president, the
grievance is sent to an arbitrator. Two provisions of Education Code section 89542.5 are
relevant here. Section 89542.5(a)(4) provides:
If there is a disagreement between the faculty hearing
committee's decision and the state university president's
decision, the matter shall go before an arbitrator whose decision
shall be final.
Education Code section 89542.5(a)(7)(b) provides:
For purposes of this section, a "grievance" is an allegation by an
employee that the employee was directly wronged in connection
with the rights accruing to his or her job classification, benefits,
working conditions, appointment, reappointment, tenure,
promotion, reassignment, or the like. A grievance does not
Under Executive Order 201, the president's decision could be appealed to an arbitrator
on limited grounds. These included arbitrary action by the president, departure from
established procedures, and failure to consider substantial evidence favorable to the grievant.
If the arbitrator found affirmatively on any of these grounds, he or she next decided if the
president's decision should be upheld, the matter should be remanded to the campus for
review, or the committee's recommendation should be upheld. In reaching a conclusion, the
arbitrator did not hold a hearing. The decision to take any of the above actions was based only
on a review of the record, and the arbitrator was bound by the findings and conclusions of the
hearing officer on factual matters. The arbitrator's decision was final and binding on the
campus and the grievant.
Executive Order 201 remained in existence until 1976, when Assembly Bill (AB) 804
was enacted as Education Code section 24315. That section later was renumbered Education
Code section 89542.5. Under the grievance procedure in that section, a faculty hearing
committee hears grievances and disciplinary actions, and makes recommendations to the
campus president. If there is a disagreement between the committee and the president, the
grievance is sent to an arbitrator. Two provisions of Education Code section 89542.5 are
relevant here. Section 89542.5(a)(4) provides:
If there is a disagreement between the faculty hearing
committee's decision and the state university president's
decision, the matter shall go before an arbitrator whose decision
shall be final.
Education Code section 89542.5(a)(7)(b) provides:
For purposes of this section, a "grievance" is an allegation by an
employee that the employee was directly wronged in connection
with the rights accruing to his or her job classification, benefits,
working conditions, appointment, reappointment, tenure,
promotion, reassignment, or the like. A grievance does not
4

include matters, such as the salary structure, which require
legislative action.
In discussing the differences between the grievance procedure in Executive Order 201 and
what would become Education Code section 89542.5, the legislative history of AB 804 does
not mention the scope of the arbitrator's authority.
With the passage of Education Code section 89542.5, CSU replaced Executive Order
201 with Executive Order 240, which contained a more detailed grievance procedure and
provided for a three-person committee to hear grievances. The grievance procedure in
Executive Order 240 is summarized immediately below.
The committee was selected from a panel of elected full-time faculty members. After a
hearing, the committee prepared a report including findings of fact, conclusions,
recommendations and rationale. The authority of the committee was limited.
The Committee shall determine whether the grievant has
demonstrated by a preponderance of the evidence that he or she
was directly wronged by the action which gave rise to the
grievance. In order to find for the grievant, the Committee must
find that the grievant's rights were abridged by, e.g., a procedural
violation substantially harmful to the grievant; a failure to take
into account substantial evidence favorable to the grievant (as
distinguished from considering evidence and evaluating it
adversely to the grievant); action which was arbitrary,
unreasonable, prejudiced, capricious, or not supported by the
evidence; action which was not consistent with appropriate
criteria or reasonable standards; and the like. The Committee
shall not conclude that a grievant was wronged by an action
which resulted from the exercise of reasonable judgment.
With certain limitations, the committee next recommended a remedy to the campus president.
The president, in turn, was required to accept the recommendation unless certain factors were
present. If there was a disagreement between the committee and the campus president, either
the grievant or the president could refer the matter to an arbitrator, along with a complete
5
include matters, such as the salary structure, which require
legislative action.
In discussing the differences between the grievance procedure in Executive Order 201 and
what would become Education Code section 89542.5, the legislative history
of
AB 804 does
not mention the scope
of
the arbitrator's authority.
With the passage
of
Education Code section 89542.5, CSU replaced Executive Order
201 with Executive Order 240, which contained a more detailed grievance procedure and
provided for a three-person committee to hear grievances. The grievance procedure in
Executive Order 240 is summarized immediately below.
The committee was selected from a panel
of
elected full-time faculty members. After a
hearing, the committee prepared a report including findings
of
fact, conclusions,
recommendations and rationale. The authority
of
the committee was limited.
The Committee shall determine whether the grievant has
demonstrated by a preponderance
of
the evidence that he or she
was directly wronged by the action which gave rise to the
grievance. In order to find for the grievant, the Committee must
find that the grievant's rights were abridged by, e.g., a procedural
violation substantially harmful to the grievant; a failure to take
into account substantial evidence favorable to the grievant (as
distinguished from considering evidence and evaluating it
adversely to the grievant); action which was arbitrary,
unreasonable, prejudiced, capricious, or not supported by the
evidence; action which was not consistent with appropriate
criteria or reasonable standards; and the like. The Committee
shall not conclude that a grievant was wronged by an action
which resulted from the exercise
of
reasonable judgment.
With certain limitations, the committee next recommended a remedy to the campus president.
The president, in turn, was required to accept the recommendation unless certain factors were
present.
If
there was a disagreement between the committee and the campus president, either
the grievant or the president could refer the matter to an arbitrator, along with a complete
5

record of the proceeding and written argument. No hearing was held before the arbitrator,
whose decision was based on the record.
If the arbitrator determined there was no disagreement, he would issue a report stating
the reason for the conclusion. If the arbitrator determined that a disagreement existed, he
would determine if the president's disagreement with the recommendation was justified. The
arbitrator had the authority to find a disagreement if: (1) the committee's findings of fact or
conclusions of law were not supported by a preponderance of the evidence or were contrary to
law; (2) the committee's recommendations were not consistent with and supported by the
findings; (3) there had been a departure from established procedures or the procedures had
been erroneously applied in a way that substantially prejudiced the committee's findings and
recommendations; or (4) the committee had recommended a remedy beyond the authority of
the president or contrary to law.
If the arbitrator found the president's disagreement with the committee's
recommendation unjustified, the arbitrator was required to adopt the recommendation. If the
arbitrator found the president's disagreement justified, the arbitrator was required to adopt the
president's decision. If the arbitrator found that Executive Order 240 procedures had not been
followed or erroneously applied so as to have a substantially prejudicial effect on the
committee's findings and recommendation, the arbitrator could either adopt the president's
decision or cause the committee to reconsider the grievance. After the reconsideration, the
matter would follow the same procedure, using the same arbitrator. The arbitrator's decision
was final under Executive Order 240 "insofar as consonant with rules and policies of the
Trustees, Office of the Chancellor and of the campus, and insofar as consonant with the laws
of California and the United States."
6
record
of
the proceeding and written argument. No hearing was held before the arbitrator,
whose decision was based on the record.
If
the arbitrator determined there was no disagreement, he would issue a report stating
the reason for the conclusion.	
If
the arbitrator determined that a disagreement existed, he
would determine
if
the president's disagreement with the recommendation was justified. The
arbitrator had the authority to find a disagreement if: (1) the committee's findings
of
fact or
conclusions
of
law were not supported by a preponderance
of
the evidence or were contrary to
law; (2) the committee's recommendations were not consistent with and supported by the
findings; (3) there had been a departure from established procedures or the procedures had
been erroneously applied in a way that substantially prejudiced the committee's findings and
recommendations; or ( 4) the committee had recommended a remedy beyond the authority
of
the president or contrary to law.
If
the arbitrator found the president's disagreement with the committee's
recommendation unjustified, the arbitrator was required to adopt the recommendation.	
If
the
arbitrator found the president's disagreement justified, the arbitrator was required to adopt the
president's decision.
	If
the arbitrator found that Executive Order 240 procedures had not been
followed or erroneously applied so as to have a substantially prejudicial effect on the
committee's findings and recommendation, the arbitrator could either adopt the president's
decision or cause the committee to reconsider the grievance. After the reconsideration, the
matter would follow the same procedure, using the same arbitrator. The arbitrator's decision
was final under Executive Order 240 "insofar as consonant with rules and policies of the
Trustees, Office of the Chancellor and of the campus, and insofar as consonant with the laws
of California and the United States."
6

In 1978, CSU issued Executive Order 301. In all material respects, Executive Order
301 was similar to Executive Order 240. Executive Order 301 remained in effect until CSU
and CFA negotiated their first memorandum of understanding (MOU) in 1983.
HEERA became effective July 1, 1979. A so-called supersession statute, HEERA
section 3572.5(a) provided that "[ijn the case where the following provisions of law are in
conflict with a memorandum of understanding, the memorandum of understanding shall be
controlling." Among the provisions of law that fell under the supersession clause of HEERA
as originally enacted was Education Code section 89542.5.
In addition, HEERA section 3561(b), provides in relevant part, for the concept of
shared governance.
The Legislature recognizes that joint decisionmaking and
consultation between administration and faculty or academic
employees is the long-accepted manner of governing institutions
of higher learning and is essential to the performance of the
educational missions of these institutions, and declares that it is
the purpose of this chapter to both preserve and encourage that
process. Nothing contained in this chapter shall be construed to
restrict, limit, or prohibit the full exercise of the functions of the
faculty in any shared governance mechanisms or practices,
including the . . . Academic Senates of the California State
University, and other faculty councils, with respect to policies on
academic and professional matters affecting the California State
University . . . . The principle of peer review of appointment,
promotion, retention, and tenure for academic employees shall be
preserved.
The scope of representation excludes the "criteria and standards to be used for the
appointment, promotion, evaluation, and tenure of academic employees, which shall be the
joint responsibility of the academic senate and the trustees." (Sec. 3562(r)(1).)
Cordelia Ontiveros, senior director for academic human resources and a member of
CSU's negotiating team, testified that CSU does not negotiate about the criteria and standards
7
In 1978, CSU issued Executive Order 301. In all material respects, Executive Order
301 was similar to Executive Order 240. Executive Order 301 remained in effect until CSU
and CFA negotiated their first memorandum of understanding (MOU) in 1983.
HEERA
HEERA became effective July 1, 1979. A so-called supersession statute, HEERA
section 3572.5(a) provided that "[i]n the case where the following provisions oflaw are in
conflict with a memorandum of understanding, the memorandum of understanding shall be
controlling." Among the provisions of law that fell under the supersession clause ofHEERA
as originally enacted was Education Code section 89542.5.
In addition, HEERA section 3561(b), provides in relevant part, for the concept of
shared governance.
The Legislature recognizes that joint decisionmaking and
consultation between administration and faculty or academic
employees is the long-accepted manner of governing institutions
of higher learning and is essential to the performance of the
educational missions of these institutions, and declares that it is
the purpose of this chapter to both preserve and encourage that
process. Nothing contained in this chapter shall be construed to
restrict, limit, or prohibit the full exercise of the functions of the
faculty in any shared governance mechanisms or practices,
including the ... Academic Senates of the California State
University, and other faculty councils, with respect to policies on
academic and professional matters affecting the California State
University .... The principle of peer review of appointment,
promotion, retention, and tenure for academic employees shall be
preserved.
The scope of representation excludes the "criteria and standards to be used for the
appointment, promotion, evaluation, and tenure of academic employees, which shall be the
joint responsibility of the academic senate and the trustees." (Sec. 3562(r)(l).)
Cordelia Ontiveros, senior director for academic human resources and a member of
CSU's negotiating team, testified that CSU does not negotiate about the criteria and standards
7

for retention, tenure, or promotion of faculty because these matters are determined by faculty
committees and the Academic Senate, and they do not fall within the scope of representation.
Ontiveros further testified that these standards are used in an elaborate process leading to
decisions regarding tenure, retention, or promotion for individual faculty members. Disputes
concerning faculty status arise from these decisions and ultimately are resolved through the
grievance and arbitration procedures.
The MOUs
The parties reached agreement on their first MOU in the early 1980s. Through the
years, successor agreements contained limitations on an arbitrator's authority in cases
involving appointment, reappointment, promotion or tenure. Many of these were adopted from
a factfinder's recommendation in 1984 and have continued to the present. For example, the
procedure in the prior MOU provides:
The arbitrator shall not find that an error in procedure will
overturn an appointment, reappointment, promotion, or tenure
decision on the basis that proper procedure has not been followed
unless:
there is clear and convincing evidence of a procedural error;
and
that such error was prejudicial to the decision with respect to
the grievant.
The normal remedy for such a procedural error will be to remand
the case to the decision level where the error occurred for
reevaluation, with the arbitrator having authority in his/her
judgment to retain jurisdiction.
An arbitrator shall not grant appointment, reappointment,
promotion or tenure except in extreme cases where it is found
that:
1) the final campus decision was not based on reasoned
judgment;
8
for retention, tenure, or promotion
of
faculty because these matters are determined by faculty
committees and the Academic Senate, and they do not fall within the scope
of
representation.
Ontiveros further testified that these standards are used in an elaborate process leading to
decisions regarding tenure, retention, or promotion for individual faculty members. Disputes
concerning faculty status arise from these decisions and ultimately are resolved through the
grievance and arbitration procedures.
TheMOUs
The parties reached agreement on their first MOU in the early 1980s. Through the
years, successor agreements contained limitations on an arbitrator's authority in cases
involving appointment, reappointment, promotion or tenure. 	Many
of
these were adopted from
a factfinder's recommendation in 1984 and have continued to the present. For example, the
procedure in the prior MOU provides:
The arbitrator shall not find that an error in procedure will
overturn an appointment, reappointment, promotion, or tenure
decision on the basis that proper procedure has not been followed
unless:
1)	1) there is clear and convincing evidence
of
a procedural error;
and
2)	2) that such error was prejudicial to the decision with respect to
the grievant. 	'
The normal remedy for such a procedural error will be to remand
the case to the decision level where the error occurred for
reevaluation, with the arbitrator having authority in his/her
judgment to retain jurisdiction.
An arbitrator shall not grant appointment, reappointment,
promotion or tenure except in extreme cases where it is found
that:
1) the final campus decision was not based on reasoned
judgment;
8

2) but for that, it can be stated with certainty that appointment,
reappointment, promotion, or tenure would have been granted;
and
no other alternative except that remedy has been demonstrated
by the evidence as a practicable remedy available to resolve the
Other general limitations on the arbitrator's authority have been place in prior MOUs between
CFA and CSU. For example, an arbitrator's decision must be based on the evidence and
arguments appropriately presented at the hearing and upon post-hearing briefs. And the
arbitrator shall have no authority to add to, subtract from, modify, or amend the provisions of
the MOU.
The MOU covering the period July 1, 1998 to June 30, 2001, was agreed to in mid-
1999 and made retroactive to July 1, 1998. During the negotiations, the parties reached
impasse and rights in Education Code section 89542.5 became effective again because the
predecessor MOU had expired. To comply with section 89542.5, the CSU implemented
Executive Order 702, which contained an interim grievance procedure and became effective
March 16, 1999. It continued in effect until the parties reached agreement on a successor
MOU a few months later. The grievance procedure in Executive Order 702 was similar to the
procedure in the expired MOU. CFA did not challenge Executive Order 702 as undercutting
Education Code section 89542.5 rights, or on any other basis.
Senate Bill 1212
On March 19, 2001, Senator Gloria Romero introduced Senate Bill 1212 (SB 1212).
The Legislative Counsel's Digest described the bill as follows:
Existing law relating to higher education labor relations provides
that, in the case where various specified statutes conflict with a
memorandum of understanding, the memorandum of
understanding shall be controlling.
2) but for that, it can be stated with certainty that appointment,
reappointment, promotion, or tenure would have been granted;
and
3) 3) no other alternative except that remedy has been demonstrated
by the evidence as a practicable remedy available to resolve the
issue. issue.
Other general limitations on the arbitrator's authority have been place in prior MOUs between
CFA and CSU. For example, an arbitrator's decision must be based on the evidence and
arguments appropriately presented at the hearing and upon post-hearing briefs. And the
arbitrator shall have no authority to add to, subtract from, modify, or amend the provisions of
the MOU.
The MOU covering the period July 1, 1998 to June 30, 2001, was agreed to in mid-
1999 and made retroactive to July 1, 1998. During the negotiations, the parties reached
impasse and rights in Education Code section 89542.5 became effective again because the
predecessor MOU had expired. To comply with section 89542.5, the CSU implemented
Executive Order 702, which contained an interim grievance procedure and became effective
March 16, 1999. It continued in effect until the parties reached agreement on a successor
MOU a few months later. The grievance procedure in Executive Order 702 was similar to the
procedure in the expired MOU. CFA did not challenge Executive Order 702 as undercutting
Education Code section 89542.5 rights, or on any other basis.
Senate Bill 1212
On March 19, 2001, Senator Gloria Romero introduced Senate Bill 1212 (SB 1212).
The Legislative Counsel's Digest described the bill as follows:
Existing law relating to higher education labor relations provides
that, in the case where various specified statutes conflict with a
memorandum of understanding, the memorandum of
understanding shall be controlling.
9

This bill would, instead, provide that, with respect to a
memorandum of understanding entered into on or after January 1,
2002, a prescribed statutory provision provides a minimum level
of benefits or rights and shall be superseded by a memorandum of
understanding only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits
or rights provided by that statute.
The bill was amended several times and signed by Governor Gray Davis on October 12, 2001.
SB 1212 provides that an MOU may supersede conflicting provisions in Education
Code section 89542.5 only if the relevant terms of the MOU provide more than the minimum
level of benefits or rights set forth in section 89542.5. Thus, SB 1212 amended section 3572.5
to add the following:
SB 1212 also deleted Education Code section 89542.5 from the statutes that were subject to
supersession under section 3572.5(a).
On October 12, 2001, SB 1212 became effective. The legislative history surrounding
the enactment of SB 1212 will be addressed in the discussion section below.
The parties' MOU expired on June 30, 2001, and they were negotiating for a successor
agreement as SB 1212 became effective. Despite the exchange of proposals, the parties fell
10
This bill would, instead, provide that, with respect to a
memorandum of understanding entered into on or after January 1,
2002, a prescribed statutory provision provides a minimum level
of benefits or rights and shall be superseded by a memorandum of
understanding only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits
or rights provided by that statute.
The bill was amended several times and signed by Governor Gray Davis on October 12, 2001.
SB 1212 provides that an MOU may supersede conflicting provisions in Education
Code section 89542.5 only if the relevant terms of the MOU provide more than the minimum
level of benefits or rights set forth in section 89542.5. Thus, SB 1212 amended section 3572.5
to add the following:
(b)	(b)(1) Notwithstanding the inclusion in Section 89542.5 of the	(1) Notwithstanding the inclusion in Section 89542.5 of the
Education	Education Code, except with respect to paragraph (5) of	Code, except with respect to paragraph (5) of
subdivision (a) of that section, of a provision providing that, if the	subdivision (a) of that section, of a provision providing that, if the
statute is in conflict with a memorandum of understanding	statute is in conflict with a memorandum of understanding
reached pursuant to this chapter, the memorandum of	reached pursuant to this chapter, the memorandum of
understanding	understanding shall be controlling without further legislative	shall be controlling without further legislative
action, unless the memorandum of understanding requires the	action, unless the memorandum of understanding requires the
expenditure of funds, that section, except for paragraph (5) of	expenditure of funds, that section, except for paragraph (5) of
subdivision (a) of that section, provides a minimum level of	subdivision (a) of that section, provides a minimum level of
benefits or rights, and is superseded by a memorandum of	benefits or rights, and is superseded by amemorandum of
understanding	understanding only if the relevant terms of the memorandum of	only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits	understanding provide more than the minimum level of benefits
or rights set forth in that section, except for paragraph (5) of	or rights set forth in that section, except for paragraph (5) of
subdivision (a) of that section.	subdivision (a) of that section.
(2)	(2) This subdivision only applies to a memorandum of	This subdivision only applies to a memorandum of
understanding	understanding entered into on or after January 1, 2002.	entered into on or after January 1, 2002.
SB 1212 also deleted Education Code section 89542.5 from the statutes that were subject to
supersession under section 3572.5(a).
On October 12, 2001, SB 1212 became effective. The legislative history surrounding
the enactment of SB 1212 will be addressed in the discussion section below.
The parties' MOU expired on June 30, 2001, and they were negotiating for a successor
agreement as SB 1212 became effective. Despite the exchange of proposals, the parties fell
10

into disagreement on several key issues, including but not limited to the scope of an
arbitrator's authority in grievances involving tenure, promotion or appointment. CFA took the
position that to limit an arbitrator's authority based on maintenance of existing contractual
restrictions would run counter to SB 1212 and newly enacted section 3572.5(b)(1) because the
unrestricted remedial authority of the arbitrator to provide a "final" decision under Education
Code section 89542.5(a)(4) constitutes a minimum right that cannot be superseded by an
MOU." CSU, on the other hand, took the position that neither section 3572.5(b)(1) nor
Education Code section 89542.5(a)(4) prohibited the parties from limiting the scope of an
arbitrator's authority. CSU argued that any newly negotiated grievance procedure must
preserve existing contractual limits on an arbitrator's authority.
In an exchange of letters in January and February 2002, the parties agreed to extend the
terms of the grievance procedure until agreement on the implementation of SB 1212 or the
statutory impasse procedure is completed. Despite their efforts, the parties could not reach an
agreement. On August 8, 2002, CFA filed a request for impasse determination with PERB on
the ground that the parties had reached impasse with respect to implementation of SB 1212.
The parties agreed to submit the dispute regarding the meaning of SB 1212 to PERB for
resolution, and on October 15, 2003, CFA filed the instant unfair practice charge.
ISSUE
Did CSU fail to participate in the impasse procedure in good faith by insisting on a
proposal that placed limits on the authority of the arbitrator in faculty status disputes, in
violation of section 3571(e) and, derivatively, section 3571(a)?
"CFA recognizes that an arbitrator's authority is generally limited by the California
Arbitration Act, Code Civ. Proc. section 1280 et seq.
11
into disagreement on several key issues, including but not limited to the scope of an
arbitrator's authority in grievances involving tenure, promotion or appointment. CF A took the
position that to limit an arbitrator's authority based on maintenance of existing contractual
restrictions would run counter to SB 1212 and newly enacted section 3572.S(b )(1) because the
unrestricted remedial authority of the arbitrator to provide a "final" decision under Education
Code section 89542.5(a)(4) constitutes a minimum right that cannot be superseded by an
MOU.2 CSU, on the other hand, took the position that neither section 3572.5(b)(l) nor
Education Code section 89542.5(a)(4) prohibited the parties from limiting the scope of an
arbitrator's authority. CSU argued that any newly negotiated grievance procedure must
preserve existing contractual limits on an arbitrator's authority.
In an exchange ofletters in January and February 2002, the parties agreed to extend the
terms of the grievance procedure until agreement on the implementation of SB 1212 or the
statutory impasse procedure is completed. Despite their efforts, the parties could not reach an
agreement. On August 8, 2002, CFA filed a request for impasse determination with PERB on
the ground that the parties had reached impasse with respect to implementation of SB 1212.
The parties agreed to submit the dispute regarding the meaning of SB 1212 to PERB for
resolution, and on October 15, 2003, CFA filed the instant unfair practice charge.
ISSUE
Did CSU fail to participate in the impasse procedure in good faith by insisting on a
proposal that placed limits on the authority of the arbitrator in faculty status disputes, in
violation of section 3571(e) and, derivatively, section 3571(a)?
2 CFA recognizes that an arbitrator's authority is generally limited by the California
Arbitration Act, Code Civ. Proc. section 1280 et seq.
11

CONCLUSIONS OF LAW
CFA argues that, in view of SB 1212, CSU's insistence on restricting the authority of
the arbitrator in faculty status disputes is a per se breach of the duty to participate in the
impasse procedure because proposals aimed at diluting immutable rights established by the
Legislature are nonnegotiable. Relying on PERB precedent, CFA contends that minimum
statutory rights are not subject to negotiation when they derive from preemptive provisions of
the Education Code.
Specifically, CFA contends the plain meaning of Education Code section 89542.5(a)(4)
and section 3572.5(b)(1) is that the arbitrator has the authority to render a final decision, and
an MOU may supercede Education Code section 89542.5(a)(4) only if it provides more than
the minimum level of benefits or rights. According to CFA, the arbitrator's authority to render
a final decision represents a statutory floor that cannot be lowered by restricting the arbitrator's
remedial authority, as was the case in prior MOUs.
CFA would reject the argument that an arbitrator's authority can be final and binding
while at the same time limited in scope or remedy. If this were the case, CFA asserts, the
enactment of SB 1212 would have accomplished nothing because a statutorily-mandated right
to a final decision by an arbitrator would be virtually meaningless if it impeded the arbitrator's
ability to remedy the wrong.
In response, CSU argues that SB 1212 did nothing to expand or in any way alter the
minimum level of rights and benefits in Education Code section 89542.5, which have remained
unchanged since 1976. Rather, SB 1212 merely changed section 89542.5 from a "pure"
supersession statute that previously could have been be superseded by an MOU to a
"modified" supersession statute that can now be superseded by an MOU only if the MOU
provides more than the minimum level of benefits.
12
CONCLUSIONS OF LAW
CFA argues that, in view of SB 1212, CSU's insistence on restricting the authority of
the arbitrator in faculty status disputes is a per se breach of the duty to participate in the
impasse procedure because proposals aimed at diluting immutable rights establishedby the
Legislature are nonnegotiable. 	Relying on PERB precedent, CF A contends that minimum
statutory rights are not subject to negotiation when they derive from preemptive provisions of
the Education Code.
Specifically, CFA contends the plain meaning of Education Code section 89542.5(a)(4)
and section 3572.5(b)(l) is that the arbitrator has the authority to render a final decision, and
an MOU may supercede Education Code section 89542.5(a)(4) only if it provides more than
the minimum level of benefits or rights. 	According to CF A, the arbitrator's authority to render
a final decision represents a statutory floor that cannot be lowered by restricting the arbitrator's
remedial authority, as was the case in prior MOUs.
CFA would reject the argument that an arbitrator's authority can be final and binding
while at the same time limited in scope or remedy. If this were the case, CF A asserts, the
enactment of SB 1212 would have accomplished nothing because a statutorily-mandated right
to a final decision by an arbitrator would be virtually meaningless if it impeded the arbitrator's
ability to remedy the wrong.
In response, CSU argues that SB 1212 did nothing to expand or in any way alter the
minimum level of rights and benefits in Education Code section 89542.5, which haveremained
unchanged since 1976. Rather, SB 1212 merely changed section 89542.5 from a "pure"
supersession statute that previously could have been be supersededby an MOU to a
"modified" supersession statute that can now be superseded by an MOU only if the MOU
provides more than the minimum level of benefits.
12

Contrary to the position adopted by CFA, CSU argues that the plain meaning of
Education Code section 89542.5 does not prohibit limits on an arbitrator's authority. CSU
contends that section 89542.5 requires only a "bare bones" grievance procedure, and CSU is
required to "put flesh on the bones." If the Legislature intended to require additional features
in the arbitration procedure, CSU continues, it would have done so. The Legislature required
only that the decision of the arbitrator be final. It did not address the myriad of issues
associated with the arbitration process, such as the scope of the arbitrator's remedial authority.
Instead, this and other aspects of the process were left to the University, CSU concludes.
CSU argues further that, at the time Education Code section 89542.5 was enacted in
1976, the Legislature presumably was aware of Executive Order 201 and its limitations on the
scope of the arbitrator's authority. After the passage of the statute, CSU enacted Executive
Orders 241 and 301, which similarly contained limitations on the arbitrator's authority. The
latter remained in effect until the first MOU in 1983. If the grievance and arbitration
procedures established by executive order (during the period the minimum requirements of
Education Code section 89542.5 were in effect) had been inconsistent with legislative intent,
CSU contends, surely the Legislature would have revised the statute to clarify its intent.
Because the Legislature did not do so, CSU would infer that the limitations on arbitral
authority were consistent with the Legislature's intent.
CSU next argues that, as the entity charged with administration of Education Code
section 89542.5, its interpretation of the statute should be given great weight. While
recognizing that PERB is entitled to deference in evaluating unfair practice charges, CSU
continues, this case is about the interpretation of the Education Code, an area where the
deference owed CSU trumps that which is owed PERB.
13
Contrary to the position adopted by CFA, CSU argues that the plain meaning of
Education Code section 89542.5 does not prohibit limits on an arbitrator's authority. CSU
contends that section 89542.5 requires only a "bare bones" grievance procedure, and CSU is
required to "put flesh on the bones." If the Legislature intended to require additional features
in the arbitration procedure, CSU continues, it would have done so. The Legislature required
only that the decision of the arbitrator be final. It did not address the myriad of issues
associated with the arbitration process, such as the scope of the arbitrator's remedial authority.
Instead, this and other aspects of the process were left to the University, CSU concludes.
CSU argues further that, at the time Education Code section 89542.5 was enacted in
1976, the Legislature presumably was aware of Executive Order 201 and its limitations on the
scope of the arbitrator's authority. After the passage of the statute, CSU enacted Executive
Orders 241 and 301, which similarly contained limitations on the arbitrator's authority. The
latter remained in effect until the first MOU in 1983. If the grievance and arbitration
procedures established by executive order (during the period the minimum requirements of
Education Code section 89542.5 were in effect) had been inconsistent with legislative intent,
CSU contends, surely the Legislature would have revised the statute to clarify its intent.
Because the Legislature did not do so, CSU would infer that the limitations on arbitral
authority were consistent with the Legislature's intent.
CSU next argues that, as the entity charged with administration of Education Code
section 89542.5, its interpretation of the statute should be given great weight. While
recognizing that PERB is entitled to deference in evaluating unfair practice charges, CSU
continues, this case is about the interpretation of the Education Code, an area where the
deference owed CSU trumps that which is owed PERB.
13

I begin with CSU's last argument regarding deference on issues of statutory
interpretation. Unlike PERB, CSU is not a quasi-judicial agency charged with administering
the Education Code through issuance of quasi-judicial decisions or quasi-legislative
regulations. Rather, CSU has merely adopted a position in administering the relevant statutes.
As the expert agency established by the Legislature to administer HEERA, the Board
has exclusive jurisdiction over conduct that arguably violates the Act. (See e.g., San Diego
Teachers Association v. Superior Court (1979) 24 Cal.3d 1, 20-21 [154 Cal.Rptr. 893].) While
PERB is not charged with enforcing the Education Code, the Board as a quasi-judicial agency
may interpret the code to carry out its duty to administer HEERA. Thus, where arguably
unlawful conduct implicates both the Education Code and HEERA, the Board may interpret
the code in determining whether the action constitutes an unfair practice. (See e.g., Wilmar
Union Elementary School District (2000) PERB Decision No. 1371-H, p. 13.) Accordingly, I
find that PERB is the agency charged by the Legislature with resolving disputes such at the
one presented here, and CSU's interpretation or application of Education Code section 89542.5
is not entitled to greater weight than otherwise accorded litigants in PERB proceedings.
Section 3572.5(a) initially provided that an MOU would supersede Education Code
section 89542.5 if the two were in conflict. However, SB 1212 amended section 3572.5(a) to
provide that an MOU will supersede section 89542.5 "only if the relevant terms of the
memorandum of understanding provide more than the minimum level of benefits." (Section
3572.5(b)(1).) The question to be decided here is whether SB 1212 established minimum
statutory rights not subject to negotiation because they derive from preemptive provisions of
the Education Code.
The test in resolving conflicts between the scope of representation under collective
bargaining statutes and the Education Code is found in San Mateo City School District v.
14
I begin with CSU' s last argument regarding deference on issues of statutory
interpretation. Unlike PERB, CSU is not a quasi-judicial agency charged with administering
the Education Code through issuance of quasi-judicial decisions or quasi-legislative
regulations. Rather, CSU has merely adopted a position in administering the relevant statutes.
As the expert agency established by the Legislature to administer HEERA, the Board
has exclusive jurisdiction over conduct that arguably violates the Act. (See e.g., San Diego
Teachers Association v. Superior Court (1979) 24 Cal.3d 1, 20-21 [154 Cal.Rptr. 893].) While
PERB is not charged with enforcing the Education Code, the Board as a quasi-judicial agency
may interpret the code to carry out its duty to administer HEERA. Thus, where arguably
unlawful conduct implicates both the Education Code and HEERA, the Board may interpret
the code in determining whether the action constitutes an unfair practice. (See e.g., Wilmar
Union Elementary School District (2000) PERB Decision No. 1371-H, p. 13.) Accordingly, I
find that PERB is the agency charged by the Legislature with resolving disputes such at the
one presented here, and CSU's interpretation or application of Education Code section 89542.5
is not entitled to greater weight than otherwise accorded litigants in PERB proceedings.
Section 3572.5(a) initially provided that an MOU would supersede Education Code
section 89542.5 if the two were in conflict. However, SB 1212 amended section 3572.5(a) to
provide that an MOU will supersede section 89542.5 "only if the relevant terms of the
memorandum of understanding provide more than the minimum level of benefits." (Section
3572.5(b)(l).) The question to be decided here is whether SB 1212 established minimum
statutory rights not subject to negotiation because they derive from preemptive provisions of
the Education Code.
The test in resolving conflicts between the scope of representation under collective
bargaining statutes and the Education Code is found in San Mateo City School District v.
14

Public Employment Relations Board (1983) 33 Cal.3d 850 [191 Cal.Rptr. 800] (San Mateo).
In that case, the California Supreme Court stated the test as follows:
Unless the statutory language [of the Education Code] clearly
evidences an intent to set an inflexible standard or insure
immutable provisions, the negotiability of a proposal should not
be precluded. (San Mateo, at pp. 864-865; See also Fremont
Unified School District (1987) PERB Decision No. 1240
(Fremont).)
Stated another way, the Education Code preempts collective bargaining agreements only if
mandatory provisions of the code would be "replaced, set aside or annulled" by the agreement.
(San Mateo, at p. 864.)
PERB cases in this area tend to fall into two general categories. When the Legislature
has written statutes in mandatory terms, leaving no discretion or room for flexibility, the Board
has found the particular statute preempts collective bargaining. Conversely, when the
Legislature has crafted statutes in permissive terms, leaving discretion and room for flexibility,
the Board has declined to find the area is preempted, provided that the subject is otherwise
negotiable. A close reading of PERB preemption cases confirms that the Board, in addressing
preemption arguments, has chosen to pay great attention to the precise language used by the
Legislature when enacting Education Code sections. (See e.g., Fremont, adopting proposed
decision of administrative law judge at pp. 34-35.)
Further, in construing statutory language, the Board has placed great weight on the
plain meaning of the words in dispute. It is important to examine the language of the statute
and give effect to each word. (Long Beach Community College District (2003) PERB
Decision No. 1564, p. 10 (Long Beach).) If the language of a statute is not ambiguous, then
the plain meaning of the language shall govern its interpretation. (San Diego Community
College District (2001) PERB Decision No. 1467, p. 7.) Further, the words of a statute must
15
Public Employment Relations Board (1983) 33 Cal.3d 850 [191 Cal.Rptr. 800] (San Mateo).
In that case, the California Supreme Court stated the test as follows:
Unless the statutory language [of the Education Code] clearly
evidences an intent to set an inflexible standard or insure
immutable provisions, the negotiability of a proposal should not
be precluded. (San Mateo, at pp. 864-865; See also Fremont
Unified School District (1987) PERB Decision No. 1240
(Fremont).)
Stated another way, the Education Code preempts collective bargaining agreements only if
mandatory provisions of the code would be "replaced, set aside or annulled" by the agreement.
(San Mateo, at p. 864.)
PERB cases in this area tend to fall into two general categories. When the Legislature
has written statutes in mandatory terms, leaving no discretion or room for flexibility, the Board
has found the particular statute preempts collective bargaining. Conversely, when the
Legislature has crafted statutes in permissive terms, leaving discretion and room for flexibility,
the Board has declined to find the area is preempted, provided that the subject is otherwise
negotiable. A close reading of PERB preemption cases confirms that the Board, in addressing
preemption arguments, has chosen to pay great attention to the precise language used by the
Legislature when enacting Education Code sections. (See e.g., Fremont, adopting proposed
decision of administrative law judge at pp. 34-35.)
Further, in construing statutory language, the Board has placed great weight on the
plain meaning of the words in dispute. It is important to examine the language of the statute
and give effect to each word. (Long Beach Community College District (2003) PERB
Decision No. 1564, p. 10 (Long Beach).) If the language of a statute is not ambiguous, then
the plain meaning of the language shall govern its interpretation. (San Diego Community
College District (2001) PERB Decision No. 1467, p. 7.) Further, the words of a statute must
15

be construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each other,
to the extent possible. (Dyna-Med, Inc.. v. Fair Employment and Housing Commission (1987)
43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67]; Long Beach at p. 10.)
Applying these principles here, I conclude that section 3572.5(b)(1) and Education
Code section 89542.5(a)(4), read together, establish statutory rights that may not be waived or
insisted upon to impasse. Education Code section 89542.5(a)(7)(b) defines a "grievance" as
"an allegation by an employee that the employee was directly wronged in connection with the
rights accruing to his or her job classification, benefits, working conditions, appointment,
reappointment, tenure, promotion, reassignment, or the like." Education Code section
89542.5(a)(4) provides in mandatory terms that "[iff there is a disagreement between the
faculty hearing committee's decision and the state university president's decision, the matter
shall go before an arbitrator whose decision shall be final." (Italics supplied.) And section
3572.5(b)(1) provides that Education Code section 89542.5 establishes a "minimum level of
rights or benefits" that may be superseded by an MOU only if it provides "more than the
minimum level of benefits or rights set forth in that section." The plain language of these
sections is that an employee, at minimum, has the right to a final decision by an arbitrator on
the merits of the particular grievance.
Presumably, the Legislature was fully aware of the grievance procedures in the various
MOUs and executive orders when it passed SB 1212. If the Legislature intended to
incorporate specific aspects of these grievance procedures as part of the statutory floor, it could
have done so. Instead, the Legislature in SB 1212 established a statutory minimum right to a
final decision by an arbitrator (unless a greater benefit is negotiated) and it must be presumed
that the Legislature intended as much. A proposal to limit the arbitrator's authority would
16
be construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each other,
to the extent possible. (Dyna-Med, Inc., v. Fair Employment and Housing Commission (1987)
43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67]; Long Beach at p. 10.)
Applying these principles here, I conclude that section 3572.S(b)(1) and Education
Code section 89542.5(a)(4), read together, establish statutory rights that may not be waived or
insisted upon to impasse. Education Code section 89542.5(a)(7)(b) defines a "grievance" as
"an allegation by an employee that the employee was directly wronged in connection with the
rights accruing to his or her job classification, benefits, working conditions, appointment,
reappointment, tenure, promotion, reassignment, or the like." Education Code section
89542.5(a)(4) provides in mandatory terms that "[i]fthere is a disagreement between the
faculty hearing committee's decision and the state university president's decision, the matter
shall go before an arbitrator whose decision shall be final." 	(Italics supplied.) And section
3572.S(b )(1) provides that Education Code section 89542.5 establishes a "minimum level of
rights or benefits" that may be superseded by an MOU only if it provides "more than the
minimum level of benefits or rights set forth in that section." The plain language of these
sections is that an employee, at minimum, has the right to a final decision by an arbitrator on
the merits of the particular grievance.
Presumably, the Legislature was fully aware of the grievance procedures in the various
MOUs and executive orders when it passed SB 1212. If the Legislature intended to
incorporate specific aspects of these grievance procedures as part of the statutory floor, it could
have done so. Instead, the Legislature in SB 1212 established a statutory minimum right to a
final decision by an arbitrator (unless a greater benefit is negotiated) and it must be presumed
that the Legislature intended as much. A proposal to limit the arbitrator's authority would
16

create a lesser, not a greater, benefit or right than the right to a final decision by an arbitrator.
To conclude otherwise would reduce the adoption of the minimum rights concept in SB 1212
to an idle act, changing nothing in the area of grievance and arbitration rights."
It is true, as CSU contends, that in prior negotiations, the parties agreed to limit the
authority of the arbitrator and CSU issued executive orders with similar restrictions. However,
those events took place prior to SB 1212, when an MOU could supersede rights in Education
Code section 89542.5. Because section 3572.5(b)(1) mandates that the arbitrator's decision
shall be final, it sets a so-called "statutory floor," and the arbitrator's authority may not be
restricted, as was the case in prior MOUs.
Under SB 1212, an MOU may supersede Education Code section 89542.5(a)(4) "only if
the relevant terms of the memorandum of understanding provide more than the minimum level
of benefits or rights set forth in that section." A proposal that includes fewer rights or benefits,
(such as limitations on the authority of the arbitrator) would run counter to the express terms of
SB 1212. As CFA argues, if the requirement that an arbitrator's "decision shall be final" is not
a statutorily protected minimum right, there would be no minimum level of rights, and the
CSU would be free to eliminate or erode any statutory due process right by limiting the
arbitrator's authority to the extent that the underlying right is rendered illusory. Adoption of
the position advanced by CSU would mean the statutory right to an arbitrator's decision which
"shall be final" could be "replaced, set aside or annulled" by an agreement, clearly
Contrary to CSU's argument, CFA's failure to challenge the various executive orders
does not compel a conclusion that CFA may not now assert the claim to statutory minimum
rights under SB 1212. The decision not to challenge the various executive orders or attempt to
negotiate better rights in MOUs pre-dated SB 1212 and may have been made for a variety of
reasons about which one can only speculate at this time. Failure to act in this regard does not
relinquish the right to do so for all time. Moreover, rather than pursue the issue through the
bargaining process or other means, CFA pursued it through the legislative process.
17
create a lesser, not a greater, benefit or right than the right to a final decision by an arbitrator.
To conclude otherwise would reduce the adoption of the minimum rights concept in SB 1212
to an idle act, changing nothing in the area of grievance and arbitration rights. 3
It is true, as CSU contends, that in prior negotiations, the parties agreed to limit the
authority of the arbitrator and CSU issued executive orders with similar restrictions. 	However,
those events took place prior to SB 1212, when an MOU could supersede rights in Education
Code section 89542.5. Because section 3572.5(b)(l) mandates that the arbitrator's decision
shall be final, it sets a so-called "statutory floor," and the arbitrator's authority may not be
restricted, as was the case in prior MOUs.
Under SB 1212, an MOU may supersede Education Code section 89542.5(a)(4) "only if
the relevant terms of the memorandum of understanding provide more than the minimum level
of benefits or rights set forth in that section." A proposal that includes fewer rights or benefits,
(such as limitations on the authority of the arbitrator) would run counter to the express terms of
SB 1212. As CFA argues, if the requirement that an arbitrator's "decision shall be final" is not
a statutorily protected minimum right, there would be no minimum level of rights, and the
CSU would be free to eliminate or erode any statutory due process right by limiting the
arbitrator's authority to the extent that the underlying right is rendered illusory. Adoption of
the position advanced by CSU would mean the statutory right to an arbitrator's decision which
"shall be final" could be "replaced, set aside or annulled" by an agreement, clearly
3 Contrary to CSU's argument, CF A's failure to challenge the various executive orders
does not compel a conclusion that CFA may not now assert the claim to statutory minimum
rights under SB 1212. The decision not to challenge the various executive orders or attempt to
negotiate better rights in MOUs pre-dated SB 1212 and may have been made for a variety of
reasons about which one can only speculate at this time. Failure to act in this regard does not
relinquish the right to do so for all time. Moreover, rather than pursue the issue through the
bargaining process or other means, CF A pursued it through the legislative process.
17

impermissible under relevant case law dealing with preemptive Education Code provisions.
(See e.g., San Mateo at pp. 864-865; Fremont.)
I recognize that, as a general rule, parties may agree that an arbitrator's decision will be
final and binding while at the same time limit the arbitrator's authority. The typical limitation
is that an arbitrator may not add to, subtract from or modify the terms of the MOU. This is
essentially what happened in prior MOUs. However, limits on arbitral authority typically
occur in negotiations where parties are free to bargain without the requirement to adhere to
minimum statutory rights. SB 1212 altered the negotiations landscape in this regard. Rights in
Education Code section 89542.5 for the first time are recognized as a statutory floor and the
parties are free to negotiate about such rights only if the MOU that results provide greater
rights than those set forth in the statute.
This conclusion is not in conflict with the principle of shared governance, as CSU
contends. Granted, section 3562(r)(1) excludes from the scope of representation the "criteria
and standards to be used for the appointment, promotion, evaluation, and tenure of academic
employees which shall be the joint responsibility of the academic senate and the trustees."
However, section 3572.5(a) has always permitted the parties to negotiate an MOU that
contained greater rights than are found in Education Code section 89542.5, and thereby
supersede the statute. With the passage of SB 1212, any MOU covering section 89542.5 rights
must include greater rights and benefits beyond the statutory floor. If the supersession concept
prior to SB 1212 did not conflict with the principle of shared governance, it is difficult to
conclude that the principle of supersession after SB 1212 conflicts with the principle of shared
governance. Accordingly, I conclude that section 3562(r)(1) provides no defense to the
allegations in the complaint.
18
impermissible under relevant case law dealing with preemptive Education Code provisions.
(See e.g., San Mateo at pp. 864-865; Fremont.)
I recognize that, as a general rule, parties may agree that an arbitrator's decision will be
final and binding while at the same time limit the arbitrator's authority. The typical limitation
is that an arbitrator may not add to, subtract from or modify the terms of the MOU. This is
essentially what happened in prior MOUs. However, limits on arbitral authority typically
occur in negotiations where parties are free to bargain without the requirement to adhere to
minimum statutory rights. SB 1212 altered the negotiations landscape in this regard. Rights in
Education Code section 89542.5 for the first time are recognized as a statutory floor and the
parties are free to negotiate about such rights only if the MOU that results provide greater
rights than those set forth in the statute.
This conclusion is not in conflict with the principle of shared governance, as CSU
contends. Granted, section 3562(r)(l) excludes from the scope ofrepresentation the "criteria
and standards to be used for the appointment, promotion, evaluation, and tenure of academic
employees which shall be the joint responsibility of the academic senate and the trustees."
However, section 3572.5(a) has always permitted the parties to negotiate an MOU that
contained greater rights than are found in Education Code section 89542.5, and thereby
supersede the statute. With the passage of SB 1212, any MOU covering section 89542.5 rights
must include greater rights and benefits beyond the statutory floor. If the supersession concept
prior to SB 1212 did not conflict with the principle of shared governance, it is difficult to
conclude that the principle of supersession after SB 1212 conflicts with the principle of shared
governance. Accordingly, I conclude that section 3562(r)(l) provides no defense to the
allegations in the complaint.
18

It is concluded, therefore, that the plain language in SB 1212 and the equally plain
mandatory language in Education Code section 89542.5 compel the conclusion that a proposal
that adheres to prior contractual restrictions on the authority of an arbitrator is not negotiable
under HEERA, and insistence on such a proposal to impasse is unlawful. As CFA argues, if an
arbitrator's authority can be final and binding while at the same time limited in scope or
remedy, SB 1212 would have been an idle legislative act. The legislative history lends support
to the conclusions reached above.
Legislative History
"In the construction of a statute the intention of the Legislature . . . is to be pursued if
possible . . .." (Code Civ. Proc., sec. 1859.) The extrinsic aids which comprise the legislative
history "may show the circumstances under which the statute was passed, the mischief at
which it was aimed and the object it was supposed to achieve . . . . [Knowledge of
circumstances and events which comprise the relevant background of a statute is a natural
basis for making such findings." (2A Sutherland, Statutory Construction (6th Ed. 2000, sec.
48:3.) Moreover, if the meaning of a statute is without ambiguity, doubt, or uncertainty, then
the language controls. But if the meaning of the words is not clear, courts must take the
second step and refer to the legislative history. (Dyna-Med. Inc. at pp. 1386-1387.) The Board
has followed these principles and used legislative history in interpreting HEERA. (See e.g.,
The Regents of the University of California (1982) PERB Decision No. 253-H, p. 4 (Regents).
There are several pieces of legislative history that shed light on the intention of the Legislature.
The Senate Committee on Education Report described the issue presented by SB 1212
as follows: "the proponents of this bill have narrowly selected the statute relative to
establishing various procedures and processes for grievance and disciplinary actions to lift out
of the supersession proviso, so that any final MOU - whether agreed to or imposed - cannot be
19
It is concluded, therefore, that the plain language in SB 1212 and the equallyplain
mandatory language in Education Code section 89542.5 compel the conclusion that aproposal
that adheres to prior contractual restrictions on the authority of an arbitrator is not negotiable
under HEERA, and insistence on such a proposal to impasse is unlawful. As CFA argues, if an
arbitrator's authority can be final and binding while at the same time limited in scope or
remedy, SB 1212 would have been an idle legislative act. The legislative history lends support
to the conclusions reached above.
Legislative History
"In the construction of a statute the intention of the Legislature ... is to be pursued if
possible .... " (Code Civ. Proc., sec. 1859.) The extrinsic aids which comprise the legislative
history "may show the circumstances under which the statute was passed, the mischief at
which it was aimed and the object it was supposed to achieve .... [K]nowledge of
circumstances and events which comprise the relevant background of a statute is a natural
basis for making such findings." (2A Sutherland, Statutory Construction (6 th Ed. 2000, sec.
48:3.) Moreover, if the meaning of a statute is without ambiguity, doubt, or uncertainty, then
the language controls. But if the meaning of the words is not clear, courts must take the
second step and refer to the legislative history. (Dyna-Med. Inc. at pp. 1386-1387.) The Board
has followed these principles and used legislative history in interpreting HEERA. (See e.g.,
The Regents of the University of California (1982) PERB Decision No. 253-H, p. 4 (Regents).
There are several pieces of legislative history that shed light on the intention of the Legislature.
The Senate Committee on Education Report described the issue presented by SB 1212
as follows: "the proponents of this bill have narrowly selected the statute relative to
establishing various procedures and processes for grievance and disciplinary actions to lift out
of the supersession proviso, so that any final MOU - whether agreed to or imposed cannot be
19

less than that provided by statute." The report describes the "NEED FOR THE BILL" as
follows: "This bill would ensure that state law relative to grievance and disciplinary action
procedures in the CSU is a floor, and that these legal rights cannot be eliminated or reduced
through collective bargaining." (Italics added.) Similarly, the Appropriations Committee
Fiscal Summary indicates that "the grievance procedure in the Education Code will become the
floor from which all future negotiations must proceed." (Italics added.)
In reference to the protection of due process rights for CSU faculty, the Senate's Third
Reading Analysis of SB 1212 states: "According to the sponsor, these rights [found in
Education Code section 89542.5] should never be a subject of collective bargaining.
Furthermore, the sponsor believes that the legislation provides a base labor protection that
benefits the process of negotiations." (Italics added.) The Third Reading Analysis, prepared
by the Assembly Committee on Higher Education, contains almost identical language. And in
the "Comments" section of the Unfinished Business Analyses of SB 1212, the Senate Rules
Committee described the "Need for the Bill" as follows:
In materials provided by the sponsor, the California Faculty
Association, they state: 'Recent collective bargaining disputes
with the CSU have included the administration's desire to reduce
- and even eliminate - faculty due process rights. Due process
and arbitration are essential to the protection of academic
standards. The CSU should not be allowed to propose conditions
that diminish statutory due process rights, or place faculty in a
position where equitable compensation and working conditions
would have to be compromised at the expense of these academic
protections.' " (Italics added.)
In the "Argument in Support," the analyses continues, CFA "narrowly selected the statute
relative to establishing the various procedures and processes for grievance and disciplinary
actions to lift out of the supersession proviso, so that any final MOU - whether agreed to or
imposed - cannot be less that that provided by statute." (Italics added.)
20
less than that provided by statute." The report describes the "NEED FOR THE BILL" as
follows: "This bill would ensure that state law relative to grievance and disciplinary action
procedures in the CSU is a floor, and that these legal rights cannot be eliminated or reduced
through collective bargaining." (Italics added.) Similarly, the Appropriations Committee
Fiscal Summary indicates that "the grievance procedure in the Education Code will become the
floor from which all future negotiations must proceed." (Italics added.)
In reference to the protection of due process rights for CSU faculty, the Senate's Third
Reading Analysis of SB 1212 states: "According to the sponsor, these rights [found in
Education Code section 89542.5] should never be a subject of collective bargaining.
Furthermore, the sponsor believes that the legislation provides a base labor protection that
benefits the process of negotiations." (Italics added.) The Third Reading Analysis, prepared
by the Assembly Committee on Higher Education, contains almost identical language. 	And in
the "Comments" section of the Unfinished Business Analyses of SB 1212, the Senate Rules
Committee described the "Need for the Bill" as follows:
In materials provided by the sponsor, the California Faculty
Association, they state: 'Recent collective bargaining disputes
with the CSU have included the administration's desire to reduce
- and even eliminate - faculty due process rights. Due process
and arbitration are essential to the protection of academic
standards. 	The CSU should not be allowed to propose conditions
that diminish statutory due process rights, or place faculty in a
position where equitable compensation and working conditions
would have to be compromised at the expense of these academic
protections.' " (Italics added.)
In the "Argument in Support," the analyses continues, CF A "narrowly selected the statute
relative to establishing the various procedures and processes for grievance and disciplinary
actions to lift out of the supersession proviso, so that any final MOU - whether agreed to or
imposed - cannot be less that that provided by statute." (Italics added.)
20

The Third Reading Analysis' summary of the legislation states
. . . . that existing law relative to grievance and disciplinary action
procedures in the California State University (CSU) may not be
superseded by a Memorandum of Understanding (MOU) unless
the MOU provides more that the minimum level of benefits or
rights provided by that law. (Italics added.)
For the following reasons, I conclude that the foregoing legislative history supports the
interpretation of SB 1212 advanced by CFA. Although prior MOUs and executive orders
contained limits on the arbitrator's authority, there is little if any legislative history that the
Legislature focused on preserving anything other than the basic rights on the face of Education
Code section 89542.5 itself, including the finality of arbitration decisions.
The dominant thread that runs through the legislative history is that SB 1212 was
intended to establish that the law relative to grievance and disciplinary actions was a statutory
"floor," and that these rights (in particular, Education Code section 89542.5, which mandates
that the arbitrator's decision "shall be final") "cannot be eliminated or reduced through
collective bargaining." The Senate's Third Reading Analysis indicates that CFA made it clear
that the finality of arbitration awards "should never be a subject of collective bargaining." The
analysis prepared by the Assembly Committee on Higher Education is in accord. And the
same Assembly committee noted that CFA made it clear that CSU should not be permitted to
propose conditions that diminish these statutory due process rights.
CSU's contention that SB 1212 made no substantive changes to "existing law" in
Education Code section 89542.5, as reflected in prior MOUs and executive orders, is not
convincing. The "existing law" is found in the plain language of Education Code section
89542.5, which provides that the arbitrator's decision "shall be final." As noted, the focus of
SB 1212 was on establishing section 89542.5 rights as a statutory floor, not on preserving the
grievance procedures in prior MOUs or executive orders. Granted, prior MOUs and executive
21
The Third Reading Analysis' summary of the legislation states
.... that existing law relative to grievance and disciplinary action
procedures in the California State University (CSU) may not be
superseded by a Memorandum of Understanding (MOU) unless
the MOU provides more that the minimum level of benefits or
rights provided by that law. 	(Italics added.)
For the following reasons, I conclude that the foregoing legislative history supports the
interpretation of SB 1212 advanced by CFA. Although prior MOUs and executive orders
contained limits on the arbitrator's authority, there is little if any legislative history that the
Legislature focused on preserving anything other than the basic rights on the face of Education
Code section 89542.5 itself, including the finality of arbitration decisions.
The dominant thread that runs through the legislative history is that SB 1212 was
intended to establish that the law relative to grievance and disciplinary actions was a statutory
"floor," and that these rights (in particular, Education Code section 89542.5, which mandates
that the arbitrator's decision "shall be final") "cannot be eliminated or reduced through
collective bargaining." The Senate's Third Reading Analysis indicates that CFA made it clear
that the finality of arbitration awards "should never be a subject of collective bargaining." The
analysis prepared by the Assembly Committee on Higher Education is in accord. And the
same Assembly committee noted that CFA made it clear that CSU should not be permitted to
propose conditions that diminish these statutory due process rights.
CSU's contention that SB 1212 made no substantive changes to "existing law" in
Education Code section 89542.5, as reflected in prior MOUs and executive orders, is not
convincing. 	The "existing law" is found in the plain language of Education Code section
89542.5, which provides that the arbitrator's decision "shall be final." As noted, the focus of
SB 1212 was on establishing section 89542.5 rights as a statutory floor, not on preserving the
grievance procedures in prior MOUs or executive orders. 	Granted, prior MOUs and executive
21

orders contained limits on the authority of the arbitrator, but those negotiations pre-dated SB
1212 and were conducted under a supersession concept that permitted an MOU to override
section 89542.5. With the enactment of SB 1212, the parties no longer may negotiate an MOU
which undercuts the finality of the arbitrator's decision and imposes the kind of restrictions
found in prior MOUs.
The reference to "recent collective bargaining disputes," cited in the Senate Rules
Committee's statement about the "need for the bill," does not call for a different conclusion, as
CSU contends. CSU asserts that disputes about arbitral limits date back to 1984, and therefore
the reference in the history of SB 1212 to recent disputes could not have been aimed at the
topic of arbitral authority. However, even if the reference to recent disputes creates some
ambiguity, it does not outweigh the clear history that the Legislature intended the section
89542.5 right to a final decision by an arbitrator to be immutable unless an MOU provided
more that the statutory floor.
Statements by the sponsor of SB 1212, Senator Romero, similarly suggest that the
intent of the bill was to preclude the kind of limits found in prior MOUs. In statements on the
Senate floor, Senator Romero said that CSU's proposal "removes arbitration rights in the areas
of academic standards such as tenure and job promotion . . . [and CSU] . . . should not be
allowed to continue its practice of trying to diminish these most basic labor protections."
(Italics added.) And in a letter to the governor urging that he sign the bill, Senator Romero
wrote the following:
SB 1212 does not expand employee grievance rights, but merely
protects a minimum level of due process rights for CSU faculty.
SB 1212 is consistent with the protections provided all other
education public employee groups who are guaranteed a
minimum level of due process rights in state law, and thus are
ensured a level of grievance rights that are non-negotiable.
(Italics added.)
22
orders contained limits on the authority of the arbitrator, but those negotiations pre-dated SB
1212 and were conducted under a supersession concept that permitted an MOU to override
section 89542.5. With the enactment of SB 1212, the parties no longer may negotiate an MOU
which undercuts the finality of the arbitrator's decision and imposes the kind of restrictions
found in prior MOUs.
The reference to "recent collective bargaining disputes," cited in the Senate Rules
Committee's statement about the "need for the bill," does not call for a different conclusion, as
CSU contends. CSU asserts that disputes about arbitral limits date back to 1984, and therefore
the reference in the history of SB 1212 to recent disputes could not have been aimed at the
topic of arbitral authority. However, even if the reference to recent disputes creates some
ambiguity, it does not outweigh the clear history that the Legislature intended the section
89542.5 right to a final decision by an arbitrator to be immutable unless an MOU provided
more that the statutory floor.
Statements by the sponsor of SB 1212, Senator Romero, similarly suggest that the
intent of the bill was to preclude the kind of limits found in prior MOUs. In statements on the
Senate floor, Senator Romero said that CSU's proposal "removes arbitration rights in the areas
of academic standards such as tenure and job promotion ... [and CSU] ... should not be
allowed to continue its practice of trying to diminish these most basic labor protections."
(Italics added.) And in a letter to the governor urging that he sign the bill, Senator Romero
wrote the following:
SB 1212 does not expand employee grievance rights, but merely
protects a minimum level of due process rights for CSU faculty.
SB 1212 is consistent with the protections provided all other
education public employee groups who are guaranteed a
minimum level of due process rights in state law, and thus are
ensured a level of grievance rights that are non-negotiable.
(Italics added.)
22

In the same letter, Senator Romero stated:
Allowing the CSU administration to continue to place due
process protections "on the table" complicates the collective
bargaining process. Such actions contribute to "impasse"
outcomes, resulting in the CSU administration unilaterally
imposing working conditions and compromising the good faith
intent of negotiations.
CSU would give little weight to Senator Romero's statements. CSU argues that it is the
intent of the Legislature as a whole, not the intent of the sponsor of a bill, that governs. In any
event, according to CSU, Senator Romero conceded in her comments that SB 1212 does not
expand employee grievance rights or change minimum requirements, but merely protects a
minimum level of due process rights. And nowhere does Senator Romero expressly state that
the purpose of SB 1212 was to prohibit limitations on arbitral authority.
I find the statements in the Senate by Senator Romero are consistent with the legislative
history outlined above and, therefore, support the conclusion that the intent of SB 1212 was to
preclude the kind of limits found in prior MOUs. She noted that the intent of the bill was to
address a CSU proposal that "removes arbitration rights in the areas of academic standards
such as tenure and job promotion," and that CSU "should not be permitted to continue its
practice of trying to diminish these most basic labor protections." It bears repeating that the
most basic protection in Education Code section 89542.5 is the right to a final decision by an
arbitrator. The logical inference to be drawn from Romero's statement is that the intent of SB
1212 was to prevent proposals that erode that right by placing limitations on the authority of
the arbitrator.
Senator Romero's letter to the governor also is consistent with the weight of the
legislative history and, therefore, tends to corroborate the conclusion that the intent of SB 1212
was to prohibit limits on arbitral authority. Romero wrote that SB 1212 would ensure that due
23
In the same letter, Senator Romero stated:
Allowing the CSU administration to continue to place due
process protections "on the table" complicates the collective
bargaining process. 	Such actions contribute to "impasse"
outcomes, resulting in the CSU administration unilaterally
imposing working conditions and compromising the good faith
intent of negotiations.
CSU would give little weight to Senator Romero's statements. CSU argues that it is the
intent of the Legislature as a whole, not the intent of the sponsor of a bill, that governs. In any
event, according to CSU, Senator Romero conceded in her comments that SB 1212 does not
expand employee grievance rights or change minimum requirements, but merely protects a
minimum level of due process rights. 	And nowhere does Senator Romero expressly state that
the purpose of SB 1212 was to prohibit limitations on arbitral authority.
I find the statements in the Senate by Senator Romero are consistent with the legislative
history outlined above and, therefore, support the conclusion that the intent of SB 1212 was to
preclude the kind of limits found in prior MOUs. She noted that the intent of the bill was to
address a CSU proposal that "removes arbitration rights in the areas of academic standards
such as tenure and job promotion," and that CSU "should not be permitted to continue its
practice of trying to diminish these most basic labor protections." It bears repeating that the
most basic protection in Education Code section 89542.5 is the right to a final decision by an
arbitrator. The logical inference to be drawn from Romero's statement is that the intent of SB
1212 was to prevent proposals that erode that right by placing limitations on the authority of
the arbitrator.
Senator Romero's letter to the governor also is consistent with the weight of the
legislative history and, therefore, tends to corroborate the conclusion that the intent of SB 1212
was to prohibit limits on arbitral authority. Romero wrote that SB 1212 would ensure that due
23

process rights in Education code section 89542.5 are "non-negotiable," and CSU should not be
permitted to continue to place due process protections on the table. Romero indicated that SB
1212 "does not expand employee grievance rights" and she did not expressly mention
arbitration limits. But these factors do not trump the weight of the legislative history outlined
above. And, while SB 1212 created a new supersession concept, it did not change existing
rights in Education Code section 89542.5 and therefore the rights therein were not expanded.
Rather, SB 1212 created a statutory floor in existing section 89542.5 rights.
In addition, several unions submitted letters to the governor or legislators in support of
SB 1212. For example, the California Nurses Association noted that CSU had "attempted to
weaken the due process statute through the collective bargaining process . . . [and] ...
proposed that faculty give up their right to an arbitration hearing for grievances addressing
tenure decisions." The California School Employees Association wrote that state law "should
be a floor, and legal rights should not be eliminated through collective bargaining." The
California Professional Firefighters wrote that SB 1212 would prohibit an MOU from
superseding due process and grievance protections unless the MOU surpasses "the floor of
benefits" under existing law. The California Teamsters Public Affairs Council and the
California Federation of Teachers wrote that SB 1212 would prevent CSU from weakening
basic due process rights through the bargaining process. The Academic Professionals of
California wrote that SB 1212 would establish a "minimum level of due process rights" for
employees. And the California Federation of Labor wrote that CSU should not be permitted to
'propose conditions that diminish statutory due process rights."
CSU argues that these letters are unreliable under applicable precedent, and, in any
event, they were submitted to the governor rather than the Legislature. Even if the letters are
viewed as an appropriate source of legislative history, CSU argues, they do not support the
24
process rights in Education code section 89542.5 are "non-negotiable," and CSU should not be
permitted to continue to place due process protections on the table. Romero indicated that SB
1212 "does not expand employee grievance rights" and she did not expressly mention
arbitration limits. But these factors do not trump the weight of the legislative history outlined
above. And, while SB 1212 created a new supersession concept, it did not change existing
rights in Education Code section 89542.5 and therefore the rights therein were not expanded.
Rather, SB 1212 created a statutory floor in existing section 89542.5 rights.
In addition, several unions submitted letters to the governor or legislators in support of
SB 1212. For example, the California Nurses Association noted that CSU had "attempted to
weaken the due process statute through the collective bargaining process ... [and] ...
proposed that faculty give up their right to an arbitration hearing for grievances addressing
tenure decisions." The California School Employees Association wrote that state law "should
be a floor, and legal rights should not be eliminated through collective bargaining." The
California Professional Firefighters wrote that SB 1212 would prohibit an MOU from
superseding due process and grievance protections unless the MOU surpasses "the floor of
benefits" under existing law. The California Teamsters Public Affairs Council and the
California Federation of Teachers wrote that SB 1212 would prevent CSU from weakening
basic due process rights through the bargaining process. The Academic Professionals of
California wrote that SB 1212 would establish a "minimum level of due process rights" for
employees. And the California Federation of Labor wrote that CSU should not be permitted to
"propose conditions that diminish statutory due process rights."
CSU argues that these letters are unreliable under applicable precedent, and, in any
event, they were submitted to the governor rather than the Legislature. Even if the letters are
viewed as an appropriate source of legislative history, CSU argues, they do not support the
24

claim that Education Code section 89542.5 prohibits limitations on arbitral authority.
According to CSU, some letters refer to an attempt to remedy "recent" actions by CSU and
limits on arbitral authority simply are not recent. Other letters merely support the concept of
minimum due process requirements, CSU claims.
I find the letters of support from other employee organizations tend to further
corroborate the conclusions reached above. The content of the letters need not be reiterated in
detail here. Suffice it to say that they uniformly restate key aspects of the legislative history
set forth above, including that due process rights in grievance arbitration must be preserved,
existing statutory rights should be a floor, and such rights should not be undermined through
the bargaining process.
Lastly, CSU argues that the 1975 legislative history of AB 804, as opposed to the more
recent history behind SB 1212, is more relevant here. It is CSU's contention that when the
Legislature passed AB 804 in 1975 it was aware of Executive Order 201 and CSU's desire for
internal implementation of grievance procedures, yet it did not indicate any difference existed
between the executive order and AB 804 in the area of arbitral authority. Given the
significance of these executive order provisions, CSU argues, it would have been reasonable to
expect the Legislature to recognize such differences if the intent behind AB 804 was to provide
unfettered arbitral authority. CSU contends the same is true regarding the Legislature's
presumed knowledge of subsequent executive orders. Thus, CSU argues that it is reasonable to
infer that the legislative intent in passing AB 804 and SB 1212 was consistent with the
administrative practice limiting the scope of arbitral authority.
Education Code section 89542.5 was enacted in 1975, prior to the enactment of
HEERA. HEERA became effective in 1979 and contained a supersession provision that
permitted an MOU to override rights set forth in section 89542.5. Thereafter, the parties
25
claim that Education Code section 89542.5 prohibits limitations on arbitral authority.
According to CSU, some letters refer to an attempt to remedy "recent" actions by CSU and
limits on arbitral authority simply are not recent. Other letters merely support the concept of
minimum due process requirements, CSU claims.
I find the letters of support from other employee organizations tend to further
corroborate the conclusions reached above. The content of the letters need not be reiterated in
detail here. Suffice it to say that they uniformly restate key aspects of the legislative history
set forth above, including that due process rights in grievance arbitration must be preserved,
existing statutory rights should be a floor, and such rights should not be undermined through
the bargaining process.
Lastly, CSU argues that the 1975 legislative history of AB 804, as opposed to the more
recent history behind SB 1212, is more relevant here. It is CSU's contention that when the
-Legislature passed AB 804 in 1975 it was aware of Executive Order 201 and CSU's desire for
internal implementation of grievance procedures, yet it did not indicate any difference existed
between the executive order and AB 804 in the area of arbitral authority. Given the
significance of these executive order provisions, CSU argues, it would have been reasonable to
expect the Legislature to recognize such differences if the intent behind AB 804 was to provide
unfettered arbitral authority. CSU contends the same is true regarding the Legislature's
presumed knowledge of subsequent executive orders. Thus, CSU argues that it is reasonable to
infer that the legislative intent in passing AB 804 and SB 1212 was consistent with the
administrative practice limiting the scope of arbitral authority.
Education Code section 89542.5 was enacted in 1975, prior to the enactment of
HEERA. HEERA became effective in 1979 and contained a supersession provision that
permitted an MOU to override rights set forth in section 89542.5. Thereafter, the parties
25

agreed to a series of MOUs that contained restrictions on the arbitration process. However, SB
1212 created a significantly different concept of supersession as far as section 89542.5 is
concerned. SB 1212 covers rights and benefits embodied in Education Code section 89542.5,
and it expressly provides that these rights may be superseded by an MOU only if the agreement
provides more that the minimum of rights or benefits "set forth in that section." (Section
3572.5(b)(1).) The plain meaning of Education Code section 89542.5 does not contain the
kind of restrictions found in prior MOUs. Nothing in SB 1212 contemplates preserving the
myriad of restrictions found in prior MOUs or executive orders. It may not be presumed that
the Legislature, in enacting an entirely new statute with an entirely new concept of
supersession, intended to incorporate CSU's administrative interpretation of Education Code
section 89542.5. In fact, the weight of the evidence is to the contrary.
If the Legislature in passing SB 1212 intended to place limits on arbitral authority - as
in executive orders and prior MOUs - it could have done so. It presumably was aware of the
practices and easily could have amended Education Code section 89542.5 or included limits on
the arbitrator's authority in SB 1212, but it did not do so. To read these limits into SB 1212 or
section 89542.5 at this juncture would be tantamount to re-writing the statutes in question,
clearly an impermissible act in this proceeding. If limits on arbitral authority are to be
imposed, it is up to the Legislature to do so.
It is well settled that a party may not insist to impasse on waiver of statutory
representational rights. (See e.g., Travis Unified School District (1992) PERB Decision No.
917, pp. 3-4; South Bay Union School District v. PERB (1991) 228 Cal.App.3d 502, 508-509
[279 Cal.Rptr. 135].) And an employer may not insist to impasse on waiver of the statutory
right to represent employees in grievances in the face of union's unwillingness to bargain, even
though the subject may have been included in prior agreements. (See e.g., Chula Vista Unified
26
agreed to a series of MOUs that contained restrictions on the arbitration process. However, SB
1212 created a significantly different concept of supersession as far as section 89542.5 is
concerned. SB 1212 covers rights and benefits embodied in Education Code section 89542.5,
and it expressly provides that these rights may be superseded by an MOU only if the agreement
provides more that the minimum ofrights or benefits "set forth in that section." (Section
3572.5(b)(l).) The plain meaning of Education Code section 89542.5 does not contain the
kind of restrictions found in prior MOUs. Nothing in SB 1212 contemplates preserving the
myriad of restrictions found in prior MO Us or executive orders. It may not be presumed that
the Legislature, in enacting an entirely new statute with an entirely new concept of
supersession, intended to incorporate CSU' s administrative interpretation of Education Code
section 89542.5. In fact, the weight of the evidence is to the contrary.
If the Legislature in passing SB 1212 intended to place limits on arbitral authority - as
in executive orders and prior MO Us - it could have done so. It presumably was aware of the
practices and easily could have amended Education Code section 89542.5 or included limits on
the arbitrator's authority in SB 1212, but it did not do so. To read these limits into SB 1212 or
section 89542.5 at this juncture would be tantamount to re-writing the statutes in question,
clearly an impermissible act in this proceeding. If limits on arbitral authority are to be
imposed, it is up to the Legislature to do so.
It is well settled that a party may not insist to impasse on waiver of statutory
representational rights. (See e.g., Travis Unified School District (1992) PERB Decision No.
917, pp. 3-4; South Bay Union School District v. PERB (1991) 228 Cal.App.3d 502, 508-509
[279 Cal.Rptr. 135].) And an employer may not insist to impasse on waiver of the statutory
right to represent employees in grievances in the face of union's unwillingness to bargain, even
though the subject may have been included in prior agreements. (See e.g., Chula Vista Unified
26

School District (1990) PERB Decision No. 834, pp. 20-24.) Accordingly, by insisting to
impasse on a proposal that would preserve existing contractual limits on the authority of an
arbitrator in faculty status disputes, CSU unlawfully conditioned agreement on waiver of a
statutory right.
REMEDY
The Board in section 3563.3 is given
. . . 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.
It has been found that CSU unlawfully insisted to impasse on a proposal that would preserve
existing contractual limits on the authority of an arbitrator in faculty status disputes. In doing
so, CSU conditioned agreement on waiver of a statutory right. By this conduct, CSU failed
and refused to participate in good faith in the statutory impasse procedure, in violation of
section 3571(e). By the same conduct, CSU interfered with the right of employees to be
represented by CFA, in violation of section 3571(a). It is appropriate therefore that CSU be
ordered to cease and desist from such activity.
It is also appropriate the CSU be required to post a notice incorporating the terms of
this order throughout the CSU system where notices to Unit 3 employees are customarily
posted. Posting of such a notice, signed by an authorized agent of CSU, will inform employees
that CSU has acted in an unlawful manner, is being required to cease and desist from such
activity, and will comply with the terms of the order. It effectuates the purposes of HEERA
that employees be informed of the resolution of this controversy and CSU's readiness to
comply with the ordered remedy. (The Regents of the University of California (1990) PERB
27
School District (1990) PERB Decision No. 834, pp. 20-24.) Accordingly, by insisting to
impasse on a proposal that would preserve existing contractual limits on the authority of an
arbitrator in faculty status disputes, CSU unlawfully conditioned agreement on waiver of a
statutory right.
REMEDY
The Board in section 3563.3 is given
... 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.
It has been found that CSU unlawfully insisted to impasse on a proposal that would preserve
existing contractual limits on the authority of an arbitrator in faculty status disputes. In doing
so, CSU conditioned agreement on waiver of a statutory right. By this conduct, CSU failed
and refused to participate in good faith in the statutory impasse procedure, in violation of
section 3571(e). By the same conduct, CSU interfered with the right of employees to be
represented by CFA, in violation of section 3571(a). It is appropriate therefore that CSU be
ordered to cease and desist from such activity.
It is also appropriate the CSU be required to post a notice incorporating the terms of
this order throughout the CSU system where notices to Unit 3 employees are customarily
posted. Posting of such a notice, signed by an authorized agent of CSU, will inform employees
that CSU has acted in an unlawful manner, is being required to cease and desist from such
activity, and will comply with the terms of the order. It effectuates the purposes of HEERA
that employees be informed of the resolution of this controversy and CSU's readiness to
comply with the ordered remedy. (The Regents of the University of California (1990) PERB
27

Decision No. 826-H, p. 13; Trustees of the California State University (2003) PERB Decisoon
No. 1507-H, p. 10.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (Act). CSU insisted to impasse on a proposal
that would limit the remedial authority of an arbitrator in faculty status disputes, and thereby
unlawfully conditioned agreement on waiver of a statutory right. By this conduct, CSU failed
and refused to participate in good faith in the impasse procedure, in violation of section
3571(e). By the same conduct, CSU interfered with the right of employees to be represented
by the California Faculty Association (CFA), the exclusive representative of Unit 3, in
violation of section 3571(a).
Pursuant to Government Code section 3563.3, it is hereby ordered that CSU and its
representatives shall:
A. CEASE AND DESIST FROM:
Insisting to impasse on a proposal that would limit the remedial authority of
an arbitrator in faculty status disputes, and thereby unlawfully condition agreement on waiver
of a statutory right.
2. Interfering with the right of employees to be represented by the California
Faculty Association, the exclusive representative of Bargaining Unit 3.
B. TAKE THE FOLLOWING AFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Within ten (10) workdays of service of a final decision in this matter, post at
all work locations in the CSU system where notices to Bargaining Unit 3 employees are
28
Decision No. 826-H, p. 13; Trustees of the California State University (2003) PERB Decisoon
No. 1507-H, p. 10.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (Act). CSU insisted to impasse on a proposal
that would limit the remedial authority of an arbitrator in faculty status disputes, and thereby
unlawfully conditioned agreement on waiver of a statutory right. By this conduct, CSU failed
and refused to participate in good faith in the impasse procedure, in violation of section
3571(e). By the same conduct, CSU interfered with the right of employees to be represented
by the California Faculty Association (CFA), the exclusive representative of Unit 3, in
violation of section 3571(a).
Pursuant to Government Code section 3563.3, it is hereby ordered that CSU and its
representatives shall:
A. CEASE AND DESIST FROM:
1. 1. Insisting to impasse on a proposal that would limit the remedial authority of
an arbitrator in faculty status disputes, and thereby unlawfully condition agreement on waiver
of a statutory right.
2. Interfering with the right of employees to be represented by the California
Faculty Association, the exclusive representative of Bargaining Unit 3.
B. TAKE THE FOLLOWING AFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Within ten (10) workdays of service of a final decision in this matter, post at
all work locations in the CSU system where notices to Bargaining Unit 3 employees are
28

customarily posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of CSU, indicating that CSU will comply with the terms of the
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.
2. Upon issuance of a final decision, make written notification of the actions
taken to comply with this Order to the General Counsel of the Public Employment Relations
Board, or his designee, in accordance with his instructions. Continue to report to the General
Counsel thereafter as directed. All reports to the General Counsel shall be concurrently served
on the charging party.
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
Public Employment Relations Board (PERB or 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 95814-4174
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, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 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
29
customarily posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of CSU, indicating that CSU will comply with the terms of the
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.
2. Upon issuance of a final decision, make written notification of the actions
taken to comply with this Order to the General Counsel of the Public Employment Relations
Board, or his designee, in accordance with his instructions. Continue to report to the General
Counsel thereafter as directed. All reports to the General Counsel shall be concurrently served
on the charging party.
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
Public Employment Relations Board (PERB or 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 95814-4174
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, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 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
29

which meets the requirements of California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Fred D'Orazio
Administrative Law Judge
30
which meets the requirements of California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
30
Fred D'Orazio
Administrative Law Judge

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

VACATED by Trustees of the California State University (2008)
PERB Decision No. 1823a-H

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA FACULTY ASSOCIATION,
Charging Party, Case No. LA-CE-784-H
V. PERB Decision No. 1823-H
TRUSTEES OF THE CALIFORNIA STATE February 23, 2006
UNIVERSITY,
Respondent.

Appearances: Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for California
Faculty Association; Donald A. Newman, University Counsel, for Trustees of the California
State University.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Trustees of the California State University (CSU)
to an administrative law judge’s (ALJ) proposed decision (attached). The unfair practice
charge alleged that CSU violated the Higher Education Employer-Employee Relations Act
(HEERA)' by conditioning agreement on the parties’ memorandum of understanding (MOU)
on the waiver of a statutory right. The California Faculty Association (CFA) alleged that this
conduct constituted a violation of section 3571 of HEERA.

We have reviewed the entire record in this case, including, but not limited to, the unfair

practice charge, answer to the complaint, CFA’s opening brief, post-hearing briefs from both

parties, and CFA’s reply brief to the CSU post-hearing rebuttal brief, exceptions filed by CSU,

"HEERA is codified at Government Code section 3560, et seq.

record of the proceeding and written argument. No hearing was held before the arbitrator,
whose decision was based on the record.
If the arbitrator determined there was no disagreement, he would issue a report stating
the reason for the conclusion. If the arbitrator determined that a disagreement existed, he
would determine if the president's disagreement with the recommendation was justified. The
arbitrator had the authority to find a disagreement if: (1) the committee's findings of fact or
conclusions of law were not supported by a preponderance of the evidence or were contrary to
law; (2) the committee's recommendations were not consistent with and supported by the
findings; (3) there had been a departure from established procedures or the procedures had
been erroneously applied in a way that substantially prejudiced the committee's findings and
recommendations; or (4) the committee had recommended a remedy beyond the authority of
the president or contrary to law.
If the arbitrator found the president's disagreement with the committee's
recommendation unjustified, the arbitrator was required to adopt the recommendation. If the
arbitrator found the president's disagreement justified, the arbitrator was required to adopt the
president's decision. If the arbitrator found that Executive Order 240 procedures had not been
followed or erroneously applied so as to have a substantially prejudicial effect on the
committee's findings and recommendation, the arbitrator could either adopt the president's
decision or cause the committee to reconsider the grievance. After the reconsideration, the
matter would follow the same procedure, using the same arbitrator. The arbitrator's decision
was final under Executive Order 240 "insofar as consonant with rules and policies of the
Trustees, Office of the Chancellor and of the campus, and insofar as consonant with the laws
of California and the United States."
6
record
of
the proceeding and written argument. No hearing was held before the arbitrator,
whose decision was based on the record.
If
the arbitrator determined there was no disagreement, he would issue a report stating
the reason for the conclusion.
If
the arbitrator determined that a disagreement existed, he
would determine
if
the president's disagreement with the recommendation was justified. The
arbitrator had the authority to find a disagreement if: (1) the committee's findings
of
fact or
conclusions
of
law were not supported by a preponderance
of
the evidence or were contrary to
law; (2) the committee's recommendations were not consistent with and supported by the
findings; (3) there had been a departure from established procedures or the procedures had
been erroneously applied in a way that substantially prejudiced the committee's findings and
recommendations; or ( 4) the committee had recommended a remedy beyond the authority
of
the president or contrary to law.
If
the arbitrator found the president's disagreement with the committee's
recommendation unjustified, the arbitrator was required to adopt the recommendation.
If
the
arbitrator found the president's disagreement justified, the arbitrator was required to adopt the
president's decision.
If
the arbitrator found that Executive Order 240 procedures had not been
followed or erroneously applied so as to have a substantially prejudicial effect on the
committee's findings and recommendation, the arbitrator could either adopt the president's
decision or cause the committee to reconsider the grievance. After the reconsideration, the
matter would follow the same procedure, using the same arbitrator. The arbitrator's decision
was final under Executive Order 240 "insofar as consonant with rules and policies of the
Trustees, Office of the Chancellor and of the campus, and insofar as consonant with the laws
of California and the United States."
6

for retention, tenure, or promotion of faculty because these matters are determined by faculty
committees and the Academic Senate, and they do not fall within the scope of representation.
Ontiveros further testified that these standards are used in an elaborate process leading to
decisions regarding tenure, retention, or promotion for individual faculty members. Disputes
concerning faculty status arise from these decisions and ultimately are resolved through the
grievance and arbitration procedures.
The MOUs
The parties reached agreement on their first MOU in the early 1980s. Through the
years, successor agreements contained limitations on an arbitrator's authority in cases
involving appointment, reappointment, promotion or tenure. Many of these were adopted from
a factfinder's recommendation in 1984 and have continued to the present. For example, the
procedure in the prior MOU provides:
The arbitrator shall not find that an error in procedure will
overturn an appointment, reappointment, promotion, or tenure
decision on the basis that proper procedure has not been followed
unless:
there is clear and convincing evidence of a procedural error;
and
that such error was prejudicial to the decision with respect to
the grievant.
The normal remedy for such a procedural error will be to remand
the case to the decision level where the error occurred for
reevaluation, with the arbitrator having authority in his/her
judgment to retain jurisdiction.
An arbitrator shall not grant appointment, reappointment,
promotion or tenure except in extreme cases where it is found
that:
1) the final campus decision was not based on reasoned
judgment;
8
for retention, tenure, or promotion
of
faculty because these matters are determined by faculty
committees and the Academic Senate, and they do not fall within the scope
of
representation.
Ontiveros further testified that these standards are used in an elaborate process leading to
decisions regarding tenure, retention, or promotion for individual faculty members. Disputes
concerning faculty status arise from these decisions and ultimately are resolved through the
grievance and arbitration procedures.
TheMOUs
The parties reached agreement on their first MOU in the early 1980s. Through the
years, successor agreements contained limitations on an arbitrator's authority in cases
involving appointment, reappointment, promotion or tenure. Many
of
these were adopted from
a factfinder's recommendation in 1984 and have continued to the present. For example, the
procedure in the prior MOU provides:
The arbitrator shall not find that an error in procedure will
overturn an appointment, reappointment, promotion, or tenure
decision on the basis that proper procedure has not been followed
unless:
1) 1) there is clear and convincing evidence
of
a procedural error;
and
2) 2) that such error was prejudicial to the decision with respect to
the grievant. '
The normal remedy for such a procedural error will be to remand
the case to the decision level where the error occurred for
reevaluation, with the arbitrator having authority in his/her
judgment to retain jurisdiction.
An arbitrator shall not grant appointment, reappointment,
promotion or tenure except in extreme cases where it is found
that:
1) the final campus decision was not based on reasoned
judgment;
8

This bill would, instead, provide that, with respect to a
memorandum of understanding entered into on or after January 1,
2002, a prescribed statutory provision provides a minimum level
of benefits or rights and shall be superseded by a memorandum of
understanding only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits
or rights provided by that statute.
The bill was amended several times and signed by Governor Gray Davis on October 12, 2001.
SB 1212 provides that an MOU may supersede conflicting provisions in Education
Code section 89542.5 only if the relevant terms of the MOU provide more than the minimum
level of benefits or rights set forth in section 89542.5. Thus, SB 1212 amended section 3572.5
to add the following:
SB 1212 also deleted Education Code section 89542.5 from the statutes that were subject to
supersession under section 3572.5(a).
On October 12, 2001, SB 1212 became effective. The legislative history surrounding
the enactment of SB 1212 will be addressed in the discussion section below.
The parties' MOU expired on June 30, 2001, and they were negotiating for a successor
agreement as SB 1212 became effective. Despite the exchange of proposals, the parties fell
10
This bill would, instead, provide that, with respect to a
memorandum of understanding entered into on or after January 1,
2002, a prescribed statutory provision provides a minimum level
of benefits or rights and shall be superseded by a memorandum of
understanding only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits
or rights provided by that statute.
The bill was amended several times and signed by Governor Gray Davis on October 12, 2001.
SB 1212 provides that an MOU may supersede conflicting provisions in Education
Code section 89542.5 only if the relevant terms of the MOU provide more than the minimum
level of benefits or rights set forth in section 89542.5. Thus, SB 1212 amended section 3572.5
to add the following:
(b) (b)(1) Notwithstanding the inclusion in Section 89542.5 of the (1) Notwithstanding the inclusion in Section 89542.5 of the
Education Education Code, except with respect to paragraph (5) of Code, except with respect to paragraph (5) of
subdivision (a) of that section, of a provision providing that, if the subdivision (a) of that section, of a provision providing that, if the
statute is in conflict with a memorandum of understanding statute is in conflict with a memorandum of understanding
reached pursuant to this chapter, the memorandum of reached pursuant to this chapter, the memorandum of
understanding understanding shall be controlling without further legislative shall be controlling without further legislative
action, unless the memorandum of understanding requires the action, unless the memorandum of understanding requires the
expenditure of funds, that section, except for paragraph (5) of expenditure of funds, that section, except for paragraph (5) of
subdivision (a) of that section, provides a minimum level of subdivision (a) of that section, provides a minimum level of
benefits or rights, and is superseded by a memorandum of benefits or rights, and is superseded by amemorandum of
understanding understanding only if the relevant terms of the memorandum of only if the relevant terms of the memorandum of
understanding provide more than the minimum level of benefits understanding provide more than the minimum level of benefits
or rights set forth in that section, except for paragraph (5) of or rights set forth in that section, except for paragraph (5) of
subdivision (a) of that section. subdivision (a) of that section.
(2) (2) This subdivision only applies to a memorandum of This subdivision only applies to a memorandum of
understanding understanding entered into on or after January 1, 2002. entered into on or after January 1, 2002.
SB 1212 also deleted Education Code section 89542.5 from the statutes that were subject to
supersession under section 3572.5(a).
On October 12, 2001, SB 1212 became effective. The legislative history surrounding
the enactment of SB 1212 will be addressed in the discussion section below.
The parties' MOU expired on June 30, 2001, and they were negotiating for a successor
agreement as SB 1212 became effective. Despite the exchange of proposals, the parties fell
10

CONCLUSIONS OF LAW
CFA argues that, in view of SB 1212, CSU's insistence on restricting the authority of
the arbitrator in faculty status disputes is a per se breach of the duty to participate in the
impasse procedure because proposals aimed at diluting immutable rights established by the
Legislature are nonnegotiable. Relying on PERB precedent, CFA contends that minimum
statutory rights are not subject to negotiation when they derive from preemptive provisions of
the Education Code.
Specifically, CFA contends the plain meaning of Education Code section 89542.5(a)(4)
and section 3572.5(b)(1) is that the arbitrator has the authority to render a final decision, and
an MOU may supercede Education Code section 89542.5(a)(4) only if it provides more than
the minimum level of benefits or rights. According to CFA, the arbitrator's authority to render
a final decision represents a statutory floor that cannot be lowered by restricting the arbitrator's
remedial authority, as was the case in prior MOUs.
CFA would reject the argument that an arbitrator's authority can be final and binding
while at the same time limited in scope or remedy. If this were the case, CFA asserts, the
enactment of SB 1212 would have accomplished nothing because a statutorily-mandated right
to a final decision by an arbitrator would be virtually meaningless if it impeded the arbitrator's
ability to remedy the wrong.
In response, CSU argues that SB 1212 did nothing to expand or in any way alter the
minimum level of rights and benefits in Education Code section 89542.5, which have remained
unchanged since 1976. Rather, SB 1212 merely changed section 89542.5 from a "pure"
supersession statute that previously could have been be superseded by an MOU to a
"modified" supersession statute that can now be superseded by an MOU only if the MOU
provides more than the minimum level of benefits.
12
CONCLUSIONS OF LAW
CFA argues that, in view of SB 1212, CSU's insistence on restricting the authority of
the arbitrator in faculty status disputes is a per se breach of the duty to participate in the
impasse procedure because proposals aimed at diluting immutable rights establishedby the
Legislature are nonnegotiable. Relying on PERB precedent, CF A contends that minimum
statutory rights are not subject to negotiation when they derive from preemptive provisions of
the Education Code.
Specifically, CFA contends the plain meaning of Education Code section 89542.5(a)(4)
and section 3572.5(b)(l) is that the arbitrator has the authority to render a final decision, and
an MOU may supercede Education Code section 89542.5(a)(4) only if it provides more than
the minimum level of benefits or rights. According to CF A, the arbitrator's authority to render
a final decision represents a statutory floor that cannot be lowered by restricting the arbitrator's
remedial authority, as was the case in prior MOUs.
CFA would reject the argument that an arbitrator's authority can be final and binding
while at the same time limited in scope or remedy. If this were the case, CF A asserts, the
enactment of SB 1212 would have accomplished nothing because a statutorily-mandated right
to a final decision by an arbitrator would be virtually meaningless if it impeded the arbitrator's
ability to remedy the wrong.
In response, CSU argues that SB 1212 did nothing to expand or in any way alter the
minimum level of rights and benefits in Education Code section 89542.5, which haveremained
unchanged since 1976. Rather, SB 1212 merely changed section 89542.5 from a "pure"
supersession statute that previously could have been be supersededby an MOU to a
"modified" supersession statute that can now be superseded by an MOU only if the MOU
provides more than the minimum level of benefits.
12

be construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each other,
to the extent possible. (Dyna-Med, Inc.. v. Fair Employment and Housing Commission (1987)
43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67]; Long Beach at p. 10.)
Applying these principles here, I conclude that section 3572.5(b)(1) and Education
Code section 89542.5(a)(4), read together, establish statutory rights that may not be waived or
insisted upon to impasse. Education Code section 89542.5(a)(7)(b) defines a "grievance" as
"an allegation by an employee that the employee was directly wronged in connection with the
rights accruing to his or her job classification, benefits, working conditions, appointment,
reappointment, tenure, promotion, reassignment, or the like." Education Code section
89542.5(a)(4) provides in mandatory terms that "[iff there is a disagreement between the
faculty hearing committee's decision and the state university president's decision, the matter
shall go before an arbitrator whose decision shall be final." (Italics supplied.) And section
3572.5(b)(1) provides that Education Code section 89542.5 establishes a "minimum level of
rights or benefits" that may be superseded by an MOU only if it provides "more than the
minimum level of benefits or rights set forth in that section." The plain language of these
sections is that an employee, at minimum, has the right to a final decision by an arbitrator on
the merits of the particular grievance.
Presumably, the Legislature was fully aware of the grievance procedures in the various
MOUs and executive orders when it passed SB 1212. If the Legislature intended to
incorporate specific aspects of these grievance procedures as part of the statutory floor, it could
have done so. Instead, the Legislature in SB 1212 established a statutory minimum right to a
final decision by an arbitrator (unless a greater benefit is negotiated) and it must be presumed
that the Legislature intended as much. A proposal to limit the arbitrator's authority would
16
be construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each other,
to the extent possible. (Dyna-Med, Inc., v. Fair Employment and Housing Commission (1987)
43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67]; Long Beach at p. 10.)
Applying these principles here, I conclude that section 3572.S(b)(1) and Education
Code section 89542.5(a)(4), read together, establish statutory rights that may not be waived or
insisted upon to impasse. Education Code section 89542.5(a)(7)(b) defines a "grievance" as
"an allegation by an employee that the employee was directly wronged in connection with the
rights accruing to his or her job classification, benefits, working conditions, appointment,
reappointment, tenure, promotion, reassignment, or the like." Education Code section
89542.5(a)(4) provides in mandatory terms that "[i]fthere is a disagreement between the
faculty hearing committee's decision and the state university president's decision, the matter
shall go before an arbitrator whose decision shall be final." (Italics supplied.) And section
3572.S(b )(1) provides that Education Code section 89542.5 establishes a "minimum level of
rights or benefits" that may be superseded by an MOU only if it provides "more than the
minimum level of benefits or rights set forth in that section." The plain language of these
sections is that an employee, at minimum, has the right to a final decision by an arbitrator on
the merits of the particular grievance.
Presumably, the Legislature was fully aware of the grievance procedures in the various
MOUs and executive orders when it passed SB 1212. If the Legislature intended to
incorporate specific aspects of these grievance procedures as part of the statutory floor, it could
have done so. Instead, the Legislature in SB 1212 established a statutory minimum right to a
final decision by an arbitrator (unless a greater benefit is negotiated) and it must be presumed
that the Legislature intended as much. A proposal to limit the arbitrator's authority would
16

create a lesser, not a greater, benefit or right than the right to a final decision by an arbitrator.
To conclude otherwise would reduce the adoption of the minimum rights concept in SB 1212
to an idle act, changing nothing in the area of grievance and arbitration rights."
It is true, as CSU contends, that in prior negotiations, the parties agreed to limit the
authority of the arbitrator and CSU issued executive orders with similar restrictions. However,
those events took place prior to SB 1212, when an MOU could supersede rights in Education
Code section 89542.5. Because section 3572.5(b)(1) mandates that the arbitrator's decision
shall be final, it sets a so-called "statutory floor," and the arbitrator's authority may not be
restricted, as was the case in prior MOUs.
Under SB 1212, an MOU may supersede Education Code section 89542.5(a)(4) "only if
the relevant terms of the memorandum of understanding provide more than the minimum level
of benefits or rights set forth in that section." A proposal that includes fewer rights or benefits,
(such as limitations on the authority of the arbitrator) would run counter to the express terms of
SB 1212. As CFA argues, if the requirement that an arbitrator's "decision shall be final" is not
a statutorily protected minimum right, there would be no minimum level of rights, and the
CSU would be free to eliminate or erode any statutory due process right by limiting the
arbitrator's authority to the extent that the underlying right is rendered illusory. Adoption of
the position advanced by CSU would mean the statutory right to an arbitrator's decision which
"shall be final" could be "replaced, set aside or annulled" by an agreement, clearly
Contrary to CSU's argument, CFA's failure to challenge the various executive orders
does not compel a conclusion that CFA may not now assert the claim to statutory minimum
rights under SB 1212. The decision not to challenge the various executive orders or attempt to
negotiate better rights in MOUs pre-dated SB 1212 and may have been made for a variety of
reasons about which one can only speculate at this time. Failure to act in this regard does not
relinquish the right to do so for all time. Moreover, rather than pursue the issue through the
bargaining process or other means, CFA pursued it through the legislative process.
17
create a lesser, not a greater, benefit or right than the right to a final decision by an arbitrator.
To conclude otherwise would reduce the adoption of the minimum rights concept in SB 1212
to an idle act, changing nothing in the area of grievance and arbitration rights. 3
It is true, as CSU contends, that in prior negotiations, the parties agreed to limit the
authority of the arbitrator and CSU issued executive orders with similar restrictions. However,
those events took place prior to SB 1212, when an MOU could supersede rights in Education
Code section 89542.5. Because section 3572.5(b)(l) mandates that the arbitrator's decision
shall be final, it sets a so-called "statutory floor," and the arbitrator's authority may not be
restricted, as was the case in prior MOUs.
Under SB 1212, an MOU may supersede Education Code section 89542.5(a)(4) "only if
the relevant terms of the memorandum of understanding provide more than the minimum level
of benefits or rights set forth in that section." A proposal that includes fewer rights or benefits,
(such as limitations on the authority of the arbitrator) would run counter to the express terms of
SB 1212. As CFA argues, if the requirement that an arbitrator's "decision shall be final" is not
a statutorily protected minimum right, there would be no minimum level of rights, and the
CSU would be free to eliminate or erode any statutory due process right by limiting the
arbitrator's authority to the extent that the underlying right is rendered illusory. Adoption of
the position advanced by CSU would mean the statutory right to an arbitrator's decision which
"shall be final" could be "replaced, set aside or annulled" by an agreement, clearly
3 Contrary to CSU's argument, CF A's failure to challenge the various executive orders
does not compel a conclusion that CFA may not now assert the claim to statutory minimum
rights under SB 1212. The decision not to challenge the various executive orders or attempt to
negotiate better rights in MOUs pre-dated SB 1212 and may have been made for a variety of
reasons about which one can only speculate at this time. Failure to act in this regard does not
relinquish the right to do so for all time. Moreover, rather than pursue the issue through the
bargaining process or other means, CF A pursued it through the legislative process.
17

less than that provided by statute." The report describes the "NEED FOR THE BILL" as
follows: "This bill would ensure that state law relative to grievance and disciplinary action
procedures in the CSU is a floor, and that these legal rights cannot be eliminated or reduced
through collective bargaining." (Italics added.) Similarly, the Appropriations Committee
Fiscal Summary indicates that "the grievance procedure in the Education Code will become the
floor from which all future negotiations must proceed." (Italics added.)
In reference to the protection of due process rights for CSU faculty, the Senate's Third
Reading Analysis of SB 1212 states: "According to the sponsor, these rights [found in
Education Code section 89542.5] should never be a subject of collective bargaining.
Furthermore, the sponsor believes that the legislation provides a base labor protection that
benefits the process of negotiations." (Italics added.) The Third Reading Analysis, prepared
by the Assembly Committee on Higher Education, contains almost identical language. And in
the "Comments" section of the Unfinished Business Analyses of SB 1212, the Senate Rules
Committee described the "Need for the Bill" as follows:
In materials provided by the sponsor, the California Faculty
Association, they state: 'Recent collective bargaining disputes
with the CSU have included the administration's desire to reduce
- and even eliminate - faculty due process rights. Due process
and arbitration are essential to the protection of academic
standards. The CSU should not be allowed to propose conditions
that diminish statutory due process rights, or place faculty in a
position where equitable compensation and working conditions
would have to be compromised at the expense of these academic
protections.' " (Italics added.)
In the "Argument in Support," the analyses continues, CFA "narrowly selected the statute
relative to establishing the various procedures and processes for grievance and disciplinary
actions to lift out of the supersession proviso, so that any final MOU - whether agreed to or
imposed - cannot be less that that provided by statute." (Italics added.)
20
less than that provided by statute." The report describes the "NEED FOR THE BILL" as
follows: "This bill would ensure that state law relative to grievance and disciplinary action
procedures in the CSU is a floor, and that these legal rights cannot be eliminated or reduced
through collective bargaining." (Italics added.) Similarly, the Appropriations Committee
Fiscal Summary indicates that "the grievance procedure in the Education Code will become the
floor from which all future negotiations must proceed." (Italics added.)
In reference to the protection of due process rights for CSU faculty, the Senate's Third
Reading Analysis of SB 1212 states: "According to the sponsor, these rights [found in
Education Code section 89542.5] should never be a subject of collective bargaining.
Furthermore, the sponsor believes that the legislation provides a base labor protection that
benefits the process of negotiations." (Italics added.) The Third Reading Analysis, prepared
by the Assembly Committee on Higher Education, contains almost identical language. And in
the "Comments" section of the Unfinished Business Analyses of SB 1212, the Senate Rules
Committee described the "Need for the Bill" as follows:
In materials provided by the sponsor, the California Faculty
Association, they state: 'Recent collective bargaining disputes
with the CSU have included the administration's desire to reduce
- and even eliminate - faculty due process rights. Due process
and arbitration are essential to the protection of academic
standards. The CSU should not be allowed to propose conditions
that diminish statutory due process rights, or place faculty in a
position where equitable compensation and working conditions
would have to be compromised at the expense of these academic
protections.' " (Italics added.)
In the "Argument in Support," the analyses continues, CF A "narrowly selected the statute
relative to establishing the various procedures and processes for grievance and disciplinary
actions to lift out of the supersession proviso, so that any final MOU - whether agreed to or
imposed - cannot be less that that provided by statute." (Italics added.)
20

The Third Reading Analysis' summary of the legislation states
. . . . that existing law relative to grievance and disciplinary action
procedures in the California State University (CSU) may not be
superseded by a Memorandum of Understanding (MOU) unless
the MOU provides more that the minimum level of benefits or
rights provided by that law. (Italics added.)
For the following reasons, I conclude that the foregoing legislative history supports the
interpretation of SB 1212 advanced by CFA. Although prior MOUs and executive orders
contained limits on the arbitrator's authority, there is little if any legislative history that the
Legislature focused on preserving anything other than the basic rights on the face of Education
Code section 89542.5 itself, including the finality of arbitration decisions.
The dominant thread that runs through the legislative history is that SB 1212 was
intended to establish that the law relative to grievance and disciplinary actions was a statutory
"floor," and that these rights (in particular, Education Code section 89542.5, which mandates
that the arbitrator's decision "shall be final") "cannot be eliminated or reduced through
collective bargaining." The Senate's Third Reading Analysis indicates that CFA made it clear
that the finality of arbitration awards "should never be a subject of collective bargaining." The
analysis prepared by the Assembly Committee on Higher Education is in accord. And the
same Assembly committee noted that CFA made it clear that CSU should not be permitted to
propose conditions that diminish these statutory due process rights.
CSU's contention that SB 1212 made no substantive changes to "existing law" in
Education Code section 89542.5, as reflected in prior MOUs and executive orders, is not
convincing. The "existing law" is found in the plain language of Education Code section
89542.5, which provides that the arbitrator's decision "shall be final." As noted, the focus of
SB 1212 was on establishing section 89542.5 rights as a statutory floor, not on preserving the
grievance procedures in prior MOUs or executive orders. Granted, prior MOUs and executive
21
The Third Reading Analysis' summary of the legislation states
.... that existing law relative to grievance and disciplinary action
procedures in the California State University (CSU) may not be
superseded by a Memorandum of Understanding (MOU) unless
the MOU provides more that the minimum level of benefits or
rights provided by that law. (Italics added.)
For the following reasons, I conclude that the foregoing legislative history supports the
interpretation of SB 1212 advanced by CFA. Although prior MOUs and executive orders
contained limits on the arbitrator's authority, there is little if any legislative history that the
Legislature focused on preserving anything other than the basic rights on the face of Education
Code section 89542.5 itself, including the finality of arbitration decisions.
The dominant thread that runs through the legislative history is that SB 1212 was
intended to establish that the law relative to grievance and disciplinary actions was a statutory
"floor," and that these rights (in particular, Education Code section 89542.5, which mandates
that the arbitrator's decision "shall be final") "cannot be eliminated or reduced through
collective bargaining." The Senate's Third Reading Analysis indicates that CFA made it clear
that the finality of arbitration awards "should never be a subject of collective bargaining." The
analysis prepared by the Assembly Committee on Higher Education is in accord. And the
same Assembly committee noted that CFA made it clear that CSU should not be permitted to
propose conditions that diminish these statutory due process rights.
CSU's contention that SB 1212 made no substantive changes to "existing law" in
Education Code section 89542.5, as reflected in prior MOUs and executive orders, is not
convincing. The "existing law" is found in the plain language of Education Code section
89542.5, which provides that the arbitrator's decision "shall be final." As noted, the focus of
SB 1212 was on establishing section 89542.5 rights as a statutory floor, not on preserving the
grievance procedures in prior MOUs or executive orders. Granted, prior MOUs and executive
21

In the same letter, Senator Romero stated:
Allowing the CSU administration to continue to place due
process protections "on the table" complicates the collective
bargaining process. Such actions contribute to "impasse"
outcomes, resulting in the CSU administration unilaterally
imposing working conditions and compromising the good faith
intent of negotiations.
CSU would give little weight to Senator Romero's statements. CSU argues that it is the
intent of the Legislature as a whole, not the intent of the sponsor of a bill, that governs. In any
event, according to CSU, Senator Romero conceded in her comments that SB 1212 does not
expand employee grievance rights or change minimum requirements, but merely protects a
minimum level of due process rights. And nowhere does Senator Romero expressly state that
the purpose of SB 1212 was to prohibit limitations on arbitral authority.
I find the statements in the Senate by Senator Romero are consistent with the legislative
history outlined above and, therefore, support the conclusion that the intent of SB 1212 was to
preclude the kind of limits found in prior MOUs. She noted that the intent of the bill was to
address a CSU proposal that "removes arbitration rights in the areas of academic standards
such as tenure and job promotion," and that CSU "should not be permitted to continue its
practice of trying to diminish these most basic labor protections." It bears repeating that the
most basic protection in Education Code section 89542.5 is the right to a final decision by an
arbitrator. The logical inference to be drawn from Romero's statement is that the intent of SB
1212 was to prevent proposals that erode that right by placing limitations on the authority of
the arbitrator.
Senator Romero's letter to the governor also is consistent with the weight of the
legislative history and, therefore, tends to corroborate the conclusion that the intent of SB 1212
was to prohibit limits on arbitral authority. Romero wrote that SB 1212 would ensure that due
23
In the same letter, Senator Romero stated:
Allowing the CSU administration to continue to place due
process protections "on the table" complicates the collective
bargaining process. Such actions contribute to "impasse"
outcomes, resulting in the CSU administration unilaterally
imposing working conditions and compromising the good faith
intent of negotiations.
CSU would give little weight to Senator Romero's statements. CSU argues that it is the
intent of the Legislature as a whole, not the intent of the sponsor of a bill, that governs. In any
event, according to CSU, Senator Romero conceded in her comments that SB 1212 does not
expand employee grievance rights or change minimum requirements, but merely protects a
minimum level of due process rights. And nowhere does Senator Romero expressly state that
the purpose of SB 1212 was to prohibit limitations on arbitral authority.
I find the statements in the Senate by Senator Romero are consistent with the legislative
history outlined above and, therefore, support the conclusion that the intent of SB 1212 was to
preclude the kind of limits found in prior MOUs. She noted that the intent of the bill was to
address a CSU proposal that "removes arbitration rights in the areas of academic standards
such as tenure and job promotion," and that CSU "should not be permitted to continue its
practice of trying to diminish these most basic labor protections." It bears repeating that the
most basic protection in Education Code section 89542.5 is the right to a final decision by an
arbitrator. The logical inference to be drawn from Romero's statement is that the intent of SB
1212 was to prevent proposals that erode that right by placing limitations on the authority of
the arbitrator.
Senator Romero's letter to the governor also is consistent with the weight of the
legislative history and, therefore, tends to corroborate the conclusion that the intent of SB 1212
was to prohibit limits on arbitral authority. Romero wrote that SB 1212 would ensure that due
23

which meets the requirements of California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Fred D'Orazio
Administrative Law Judge
30
which meets the requirements of California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
30
Fred D'Orazio
Administrative Law Judge

Trustees of the California State University * * * VACATED by Trustees of the California State University (2008) PERB Decision No. 1823a-H (PERB 1823H)

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