Trustees of the California State University (PERB 2151H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, AFL-CIO, & ITS LOCAL
UNION 4123,

Charging Party, Case No. LA-CE-1007-H

Vv. PERB Decision No. 2151-H

TRUSTEES OF THE CALIFORNIA STATE December 14, 2010
UNIVERSITY,

Respondent.

Appearances: Schwartz, Steinsapir, Dohrmann & Sommers by Amanda R. Canning, Attorney,
for International Union, United Automobile, Aerospace & Agricultural Implement Workers of
America, AFL-CIO, & its Local Union 4123; Marc D. Mootchnik, University Counsel, for
Trustees of the California State University.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, AFL-CIO, & its Local Union 4123 (Union) of a Board agent’s
dismissal (attached) of its unfair practice charge. The charge alleged that the Trustees of the
California State University (University) violated the Higher Education Employer-Employee
Relations Act (HEERA),' section 3571, by making a misrepresentation of fact to a factfinding

panel formed pursuant to HEERA section 3591. An amended charge filed by the Union also

alleged that the University violated HEERA by failing to provide requested information. The

‘ HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

Board agent dismissed the charge finding that the information request allegation was not timely
filed, and that the misrepresentation allegation did not state a prima facie case.
2
The Board has reviewed the dismissal and the record in light
of
the Union's appeal, the
University's response to the appeal and the relevant law. Based on this review, the Board finds
the Board agent's warning and dismissal letters to be a correct statement
of
the law and well-
reasoned, and therefore adopts them as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-1007-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
November 26, 2008
Henry M. Willis, Attorney
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Boulevard, Suite 2000
Los Angeles,
CA
	90048-5268
Re: 	International Union, United Automobile, Aerospace & Agricultural Implement Workers
of
America, AFL-CIO, & Its Local Union 4123 v. Trustees
of
the California State
University
Unfair Practice Charge No. LA-CE-1007-H
DISMISSAL LETTER
Dear Mr. Willis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 14, 2007. The International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of
America, AFL-CIO, and its Local
Union
4123 (Union or Charging Party) alleges that the Trustees
of
the California State University
(CSU or Respondent) violated section 3571, subsections (b), (c), and (e)
of
the Higher
Education Employer-Employee Relations Act (HEERA) 1 by making misrepresentations
of
fact
to a factfinding panel formed pursuant to HEERA section 3591.
Charging Party was informed in the attached Warning Letter dated October 20, 2008,
that
the
above-referenced charge did not state a prima facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained
in
that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to October 31, 2008, the charge
would
be
dismissed. This deadline was subsequently extended at Charging Party's request, and a
First
Amended Charge was timely filed on November 14, 2008.
The Warning Letter
As noted, the charge as filed in May 2007 focused solely on the contention that CSU had made
misrepresentations of fact during the factfinding phase
of
the statutory impasse procedures. 	In
the Warning Letter, the conclusion that this allegation failed to state a prima facie violation
of
HEERA section 3571(e) was summarized in relevant part as follows:
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov

LA-CE-1007-H
November 26, 2008
Page 2
The allegation that a party to a factfinding hearing, in advocating
for its position, violates HEERA by failing to present all
information that the other party wishes it would, or violates
HEERA by putting its own "spin" on the data,
is
unsupported by
any citation to case law. This assertion also ignores the fact that
both parties had an opportunity to present facts and argument to
the factfinding panel, the opportunity being evidenced by the
attachment
of
both a dissenting opinion and a concurring opinion
to the final report.
The
facts alleged by the Union in this case are
easily distinguished from the type
of
misrepresentation that was
held to be an indicia
of
bad faith in Gavilan Joint Community
College District (1996) PERB Decision No. 1177 (Gavilan).
The Warning Letter further explained that misrepresentation during factfinding, even
if
established, would not constitute a per se violation
of
the Act, but would instead be analyzed as
an indicia
of
bad faith under a totality standard. (Gavilan, supra, PERB Decision No. 1177.)
First Amended Charge
The First Amended Charge, while re-framing certain allegations
of
fact2 and adding citations to
legal authority, largely focuses on the introduction
of
new facts regarding a request for
information made in July 2006. Specifically, the Union alleges that it sent an e-mail message
on July 28, 2006, requesting:
[A]ll notes, letters, email, memos, correspondence and any other
documentation reflecting the "considerable discussion and
deliberation" undertaken by CSU with respect to the provision
of
fee waivers.
All notes, letters, email, memos, correspondence and any other
documentation from Labor Relations relating to efforts to acquire
and/or allocate funding sufficient to provide the fee waiver
benefit specified in Article 9
of
the Collective Bargaining
Agreement.
For example, the First Amended Charge replaces the assertion that "CSU claimed that
providing the fee waiver would be too large an increase in the
...
compensation base," with
the allegation that "CSU claimed that it had insufficient funding to pay for a fee waiver
in
any
amount." However, as discussed in the Warning Letter; the chairperson of the factfinding
panel observed in the written report that CSU had "not raised an inability to pay defense and
that its position here manifests what may be characterized as an unwillingness to pay what is a
substantial increase in the Unit's total compensation."

LA-CE-1007-H
November 26, 2008
Page 3
All documents, email, and/or other correspondence from the CSU
to the California Legislature or Governor's Office relating to or
regarding funding sufficient'to provide the fee waiver benefit
specified in Article 9
of
the Collective Bargaining Agreement.
Any analysis
of
the cost to CSU
of
providing the fee waiver
benefit specified in Article 9
of
the Collective Bargaining
Agreement.
The Union further alleges that, on a date or dates not specified, CSU denied that the requested
documents existed. It was, however, on April 20, 2007, that the Union alleges it first learned
that the information presented by CSU during the factfinding hearings was "false."
Citing to Trustees
of
the California State University (1987) PERB Decision No. 613-H and
Stockton Unified School District (1980) PERB Decision No. 143, the Union contends that the
Respondent's refusal to provide relevant and necessary information is both a "hallmark
violation" and a "patent violation"
of
the Act. Making the violation even more egregious,
reasons the Union,
is
CSU's subsequent misleading
of
the factfinding panel on the information
requested earlier by the Union. In fact, "CSU's refusal to supply material information
on
the
one issue in dispute prevented meaningful good faith bargaining from taking place," according
to the Union. In sum, the Union's First Amended Charge makes clear its theory that the failure
by CSU to provide information independently violated the Act, and strengthens the case for
also finding a violation based on the misrepresentation
of
facts during the factfinding process.
Discussion
PERB Regulation 32615(a)(5)3 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. 	(State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alieged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to 	filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-1007-H
November 26, 2008
Page 4
The limitations period begins to run once the charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
Request for Information
As noted, the allegations regarding the July 2006 request for information, and CSU's failure to
provide the information, were not included in the charge as originally filed. Thus, this
allegation was first raised on November 14, 2008, with the filing
of
the First Amended Charge.
However, while the charge does not specify when CSU responded to the July 28, 2006
request,4 it is evident that the Union held the belief not later than the date this charge was
filed-May
14,
2007-that
CSU had earlier held back information. Thus, it appears clear that
the allegation that CSU refused to provide information was not filed until
18
months had
passed.
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan, supra, PERB Decision No.
1177.) A charging party bears the burden
of
demonstrating that the charge is timely filed.
(Tehachapi Unified School District (1993) PERB Decision No. 1024; State
of
California
(Department oflnsurance) (1997) PERB Decision No. 1197-S.)
Generally, the statute
of
limitations for a new allegation contained in an amended charge
begins to run based on the filing date
of
the amended charge, rather than the date the original
charge was filed. 	(Sacramento City Teachers Association (Marsh) (2001) PERB Decision
No. 1458.) The relation back doctrine is inapplicable here to excuse the late filing, because
while the First Amended Charge does introduce a new legal theory, it does so based on facts
not included in the original charge. (Sacramento City Teachers Association (Franz) (2008)
PERB Decision No. 1959; The Regents
of
the University
of
California (Lawrence Livermore
National Laboratory) (1997) PERH pecision No. P21-H.) 	•
..
For these reasons, the factual "!.llegations regarding CSU's alleged refusal to provide
information, and the legal theories dependent on that violation, must be dismissed.
Alleged Misrepresentat!on
While the Union has provided citations to legal authority for its allegation that the Respondent
violated the Act by misrepresenting material information 	factfinding, 	First Amended
The failure to provide a specific date can itself result in the dismissal of an unfair
practice charge, as a charging party fails to meet its burden when it omits such information.
(City of Santa Barbara, supra, PERB Decision No. 1628-M.)

LA-CE-1007-H
November 26, 2008
Page 5
Charge does not provide additional facts in this regard. For the following reasons, this
allegation still fails to state a prima facie violation
of
HEERA section 3571(e).
As was briefly discussed in the Warning Letter, even
if
the claim that CSU engaged in
misrepresentation or presentation of false information during factfinding is accepted as true,
this is not sufficient to establish badJaith under the applicable standard. The standard
generally applied to determine whether good faith negotiations have occurred
is
called the
totality
of
conduct test. (University
of
California, Lawrence Livermore National Laboratory
(1995) PERB Decision No. 1119-H.) Under the totality
of
conduct test, the allegation
of
a
single indicia
of
bad faith bargaining does not establish a prima facie case
of
bad faith
bargaining. (Oakland Unified School District (1996) PERB Decision No. 1156.) An
allegation
of
bad faith in violation
of
HEERA section 3571(e) is analyzed using the same
totality
of
conduct standard as
is
applied to allegations
of
bad faith bargaining in violation
of
HEERA section 3571(c). (Moreno Valley Unified School District
v.
Public Employment
Relations Board (1983) 142 Cal.App.3d
191
(Moreno Valley); Ventura County Community
College District (1998) PERB Decision No. 1264.)
The federal precedent relied upon by Charging Party does not alter the conclusion that the
single indicia provided by the alleged misrepresentation is insufficient to establish a prima
facie violation. Two
of
the cases cited by the
Union-Coal
Age Service Corp. (1993) 312
NLRB 572 and National Labor Relations Board
v.
Truitt Manufacturing Co. (1956) 351 U.S.
149-were
likewise decided by the application of a totality
of
conduct test. The third
case-
Waymouth Farms, Inc. (1997) 324 NLRB
960-does
not appear to apply the totality standard
but addresses the arguably distinguishable issue
of
concealment
of
plans to relocate a plant.
More important, in a case that
is
on point with respect to the issue
of
misrepresentation during
factfinding, the Board held that a totality
of
conduct standard was appropriate. (Gavilan,
supra, PERB Decision No. 1177; see also, Rio School District (2008) PERB Decision
No. 1986 [misrepresentation
of
proposals in negotiations update
is
evidence of bad faith].)
Conclusion
Therefore, the charge is hereby dismissed based on the facts and reasons set forth in this letter
and in the October 20, 2008 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. l 1020(a).) A
document is also considered "filed" when received by facsimile transmission before the close

LA-CE-1007-H
November 26, 2008
Page 6
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs, tit.
8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Cal. Code Regs, tit.
8,
sec. 32635(b).)
Service
All documents authorized
to
be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
sec. 32135(c).)
Extension of Time
A request for an extension
of
time, in which to file a document with the Board itseif,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required
for
filing the document. The request must indicate good cause for and, if known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
sec. 32132.)

LA-CE-1007-H
November 26, 2008
Page7
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
_
Les Chisholm
Division Chief
____
..._.
____
___...,..__.....,._
__
_
Attachment
cc: Marc D. Mootchnik

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916)327-6377
October 20, 2008
Henry M. Willis, Attorney
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Boulevard, Suite 2000
Los Angeles, CA 90048-5268
Re: 	International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, and its Local Union 4123 v. Trustees of the California
State University
Unfair Practice Charge No. LA-CE-1007-H
WARNING LETTER
Dear Mr. Willis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 14, 2007. The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its Local Union
4123 (Union or Charging Party) alleges that the Trustees of the California State University
(CSU or Respondent) violated section 3571, subsections (b), (c), and (e) of the Higher
Education Employer-Employee Relations Act (HEERA)1 by making misrepresentations of fact
to a factfinding panel formed pursuant to HEERA section 3591.
Background
The Union is the exclusive representative of a bargaining unit including academic student
employees of CSU (Unit 11). The Union and CSU are parties to a collective bargaining
agreement (CBA) for the period of 2005-2008. The CBA defines a "fee waiver" benefit as
"the waiver of full State University and campus fees for bargaining unit employees with a 25%
time base appointment in a given term, or who work 160 hours per semester (110 hours per
quarter)." CBA Section 9.3 provides, in pertinent part, as follows:
No sooner than July 1, 2006, the Union may ask for a response on
the CSU's determination whether it has received sufficient
funding to implement the cost of this [fee waiver] benefit. The
CSU must respond within 30 days. If the CSU administration
responds that it has not received funding sufficient to implement
the cost of fee waivers defined above for fiscal year 2006/2007,
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov

LA-CE-1007-H
October 20, 2008
Page 2
then the parties shall re-open bargaining on whether to provide
fee waivers in fiscal year 2006/07.
Pursuant to CBA Section 9.3, the Union did seek a determination from CSU as to whether
"sufficient funding to implement the cost"
of
the fee waiver benefit had been received for the
2006-2007 academic year. When the CSU responded that it had not received sufficient
funding, negotiations were reopened and the parties ultimately proceeded to factfinding to
resolve the issue.2
According to the charge,
In those factfinding proceedings CSU claimed that providing the
fee waiver would be too large an increase in the [the Union's]
compensation base. Based on that representation the panel, with
one dissent, ruled against the Union's claim that employees
should be allowed a fee waiver.
The Union alleges further that it learned on April 20, 2007, "after [the factfinding] proceedings
were concluded," that CSU had received, for the 2005-2006 academic year, over four million
dollars more than it actually expended for salaries paid to academic student employees
represented by the Union. 	The Union asserts that CSU not only did not share this information
during the factfinding hearing but actually argued that "it had no additional resources
in
its
compensation base for the fee waiver benefit."
The Union argues that this misrepresentation was material to the factfinding panel's
recommendations, because knowledge
of
the additional resources budgeted in 2005-2006
would have supported the Union's argument. More specifically, the Union contends
that
the
additional resources would have supported the argument that the Union's proposal was within
the range
of
the CSU's agreement with the California Faculty Association (CFA),3 and
that
CSU had enough reserve funds to pay nearly half the benefit sought by the Union for 2006-
2007.
Because the Union learned
of
the alleged misrepresentation after the panel had "issued its
decision," it could only ask that the panel modify its decision, which the panel declined to do.
2 Notice is taken of PERB records concerning PERB Case No. LA-IM-3386-H,
including the Factfinding Report and Recommendations issued with respect to the parties'
dispute over the fee waiver benefit.
3 CF A is the exclusive representative of CSU Bargaining Unit 3-Faculty.

LA-CE-1007-H
October 20, 2008
Page 3
The Factfinding Report and Recommendations
The chairperson's opinion, dated April 17, 2007, includes as a statement of fact that the
compensation base for Unit 11 for 2006-2007 was $34.8 million. Based on a projected cost for
the fee waiver benefit as totaling $14.6 million, the opinion noted that granting the full fee
waiver would represent approximately a 42 percent increase in the bargaining unit's
compensation base. The opinion continues, however, as follows:
The Chairperson notes that the [CSU] has not raised an inability
to pay defense and that its position here manifests what may be
characterized as an unwillingness to pay what is a substantial
increase in the Unit's total compensation. In such regard, it is
emphasized that bargaining with respect to Unit 11 does not
occur in a vacuum, for [CSU] bargains with a number of other
bargaining unit units and Unions. The reality of public sector
bargaining is that to avoid union "whip saw" bargaining
strategies employers in large multi-unit jurisdictions rarely give
compensation increases to one union that are significantly larger
than the pattern settlement. While as pointed out by the Union,
the salary increases recently negotiated with the Faculty Unit
exceed the funds provided in the "Governor's Compact," it does
not appear that any CSU bargaining unit was given a total
compensation increase of the percentage here sought by the
Union. Indeed, the percentage increase in Unit 11 's total
compensation that flows from the Union's fee waiver proposal far
exceeds any such increase in the California public sector of which
the Chairperson is aware. It is further noted that no other CSU
bargaining unit receives a fee waiver comparable to that proposed
by the Union and that bargaining with some units has been
ongoing for some 25 years.
After a discussion of other factors and arguments, and the consideration of recommending a
compromise, the chairperson recommended, that the fee waiver program not be implemented
for the 2006-2007 fiscal year in Unit 11.
In its dissenting opinion, dated May 2, 2007, the Union offered argument in support of its
proposal of the full fee waiver benefit and addressed CSU's failure to disclose "critical
financial information." Referencing the Union's recent discovery of the unspent $4 million,
the dissent opines that earlier disclosure of this information "would likely have made a
difference in the fact finder's recommendations for at least tl:1ree reasons." The Union cites the
following three reasons: (1) CSU had already received nearly one-half of the money needed to
fund the cost of the fee waiver; (2) having to fund.only the additional half of the cost would
have changed the calculation as to the percentage increase in compensation sought by the
Union, reducing the percentage to 14 percent over the prior year; and (3) the chairperson's

LA-CE-1007-H
October 20, 2008
Page 4
ability and willingness to encourage at least a compromise on the issue would have been
enhanced.
In a concurring opinion, dated May 3, 2007, CSU largely focused on responding to the
assertions and argument contained in the Union's dissent. First, CSU contested the
characterization that it "budgets" a specific amount for salaries for a specific bargaining unit.
Instead, according to CSU, its budget estimates the aggregate amounts required for payment of
salaries and other compensation, and many "intervening variable" can result in the actual
expenditures increasing or decreasing from the amounts estimated. CSU also argues that the
amounts estimated and expended in 2005-2006 are irrelevant to the dispute over compensation
for 2006-2007. CSU, while acknowledging that the compensation base for 2006-2007 was
"mistakenly presented" as $34.8 million, asserts that the inaccurate presentation either had no
impact on the factfinding proceedings, or could have had the effect if corrected of making the
"projected percentage cost increase of the fee waiver benefit sought [by the Union] even larger
and less acceptable to the CSU, as well as the neutral Fact-finder."
Discussion
The charge alleges that CSU's conduct violates HEERA section 3571, subsections (b), (c), and
(e). However, the alleged violations of the Act set forth in the charge only concern events that
occurred after the parties submitted their dispute to the statutory impasse procedures under
HEERA. For conduct occurring during and prior to the exhaustion of the statutory impasse
procedure, HEERA section 3571(e) is at issue and conduct within that time-frame cannot also
be the basis for a violation ofHEERA section 3571(c). (Moreno Valley Unified School
District v. Public Employment Relations Board (1983) 142 Cal.App.3d 191 (Moreno Valley);
Ventura County Community College District (1998) PERB Decision No. 1264; Regents of the
University of California (1996) PERB Decision No. 1157-H.) An allegation of bad faith in
violation of HEERA section 3571 (e) is analyzed using the same totality of circumstances
standard as is applied to allegations of bad faith bargaining in violation of HEERA section
3571(c). 	(Ventura County Community College District, supra, PERB Decision No. 1264;
Moreno Valley, supra, 142 Cal.App.3d 191.)
In this case, the Union's allegations that CSU violated HEERA by attempting to mislead the
Union and the neutral factfinding chairperson, and presented incomplete or inaccurate
information during the hearing, is not persuasive. PERB Regulation 32615(a)(5) requires, inter
alia, that an unfair practice charge include a "clear and concise statement of the facts and
conduct alleged to constitute an unfair practice." The charging party's burden includes
alleging the "who, what, when, where and how" of an unfair practice. (State of California
(Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)
The allegation that a party to a factfinding hearing, in advocating for its position, violates
HEERA by failing to present all information that the other party wishes it would, or violates

LA-CE-1007-H
October 20, 2008
Page 5
HEERA by putting its own "spin" on the data, is unsupported by any citation to case law. This
assertion also ignores the fact that both parties had an opportunity to present facts and
argument to the factfinding panel, the opportunity being evidenced by the attachment of both a
dissenting opinion and a concurring opinion to the final report. The facts alleged by the Union
in this case are easily distinguished from the type of misrepresentation that was held to be an
indicia of bad faith in Gavilan Joint Community College District (1996) PERB Decision
No. 1177 (Gavilan).4
In Gavilan, an exclusive representative alleged that it had agreed to eliminate a tax-sheltered
annuity plan in earlier bargaining only because the employer had represented that the plan
would also be eliminated for other employees. The focus of the charge and the analysis was on
the misrepresentation of the employer's position to the exclusive representative, not on how
the employer presented its case before the factfinding panel. (Ibid.) Even accepting that
misrepresentation is an indicia of bad faith, Gavilan does not support finding the CSU' s
conduct in the instant case to evidence bad faith. 5
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Chargt:?_, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand comer of the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
The Board's discussion in Gavilan actually focused on whether the alleged
misrepresentation was timely filed, and on whether there were sufficient indicia of bad faith to
find a violation under a totality standard. Though finding the charge timely filed, the Board
dismissed the charge, finding insufficient evidence to support finding bad faith on the
employer's part. (Gavilan, supra, PERB Decision No. 1177.) Thus, Gavilan would not
support finding a per se violation of the duty to participate in good faith in statutory impasse
procedures based on an allegation of misrepresentation during factfinding.
5 While not relied upon for this analysis, it is also difficult to ignore the logic of CSU's
concurring opinion with respect to the impact a correction of the compensation base might
have had on the chairperson's analysis in his opinion, since a reduction in the base figure could
only have increased the percentage effect of the fee benefit waiver proposed by the Union.

LA-CE-1007-H
October 20, 2008
Page 6
PERB.	
If
an amended charge or withdrawal
is
not filed on or before October 31, 2008, PERB
will dismiss the Union's charge.	
If
you have any questions, please call me at the above
telephone number.
Sincerely,
Les Chisholm
Division Chief