Trustees of the California State University (PERB 1597H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA FACULTY ASSOCIATION,
Charging Party, Case No. LA-CE-644-H

V. PERB Decision No. 1597-H

TRUSTEES OF THE CALIFORNIA STATE February 9, 2004

UNIVERSITY,

Respondent.

Appearances: Rothner, Segall & Greenstone by Bernard Rohrbacher, Attorney, for California
Faculty Association; Elisabeth Sheh Walter, University Counsel, for Trustees of the California
State University.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the California Faculty Association (CFA) to a proposed
decision (attached) of an administrative law judge (ALJ). The proposed decision found that

the Trustees of the California State University (CSU) violated section 3571(a) and (c) of the

Higher Education Employer-Employee Relations Act (HEERA)’ by unlawfully delaying its

'HEERA is codified at Government Code section 3560 et seq. HEERA
section 3571(a) and (c) states, in part:

It shall be unlawful for the higher education employer to do any
of the following:

(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. For

response to a request from CFA for Weighted Teaching Unit information. The proposed
decision dismissed a separate allegation that CSU unlawfully refused to provide faculty merit
increase (FMI) information
to
CF A absent payment
of
actual costs by CF
A.
	Exceptions have
been filed only to the latter holding.
After reviewing the record in this case, including the proposed decision, CF
A's
exceptions, and CSU' s response, the Board affirms the ALJ' s proposed decision consistent
with the discussion below.
DISCUSSION
The ultimate issue here is whether CSU refused to provide the FMI information
requested by CF A. Under HEERA, the failure to provide necessary and relevant information is
a per se violation
of
the duty to bargain in good faith. (Stockton Unified School District
(1980) PERB Decision No. 143.) To determine whether CSU failed to provide necessary and
relevant information, the ALJ analyzed whether a contract was formed by CSU and CFA
regarding the request. The ALJ found that a contract was formed and eventually concluded
that CSU did not refuse to provide the information. Citing principles
of
contract law, CFA
argues extensively in its exceptions that no contract was formed.
The Board believes that the issue
of
whether there was a legally enforceable contract
distracts from the central issue in this case. That issue is whether CSU refused to provide
necessary and relevant information to CF A. It is not necessary to delve into the realm
of
contracts to resolve this issue. Regardless of whether there was a legally enforceable contract
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(c) Refuse or fail to engage in meeting and conferring with an
exclusive representative.
2

between the parties, the Board finds that CSU did not violate HEERA by refusing to provide
necessary and relevant information to CF A.
It is undisputed that CFA requested necessary and relevant information from CSU. It is
further undisputed that complying with CF A's request involved substantial costs for CSU.
After CSU demonstrated that substantial costs were involved, the parties were obligated to
bargain over what the costs would be and who would bear them. (Los Rios Community
College District (1988) PERB Decision No. 670.) At that time, CF A could have insisted on
better estimates or negotiated protections, such as a ceiling on the total costs. CFA could have
also requested that CSU begin compiling the requested information at only a few campuses to
determine whether the resulting information was worth the money. However, CF A did not
negotiate such protections, but instead informed CSU that it would pay the "actual costs."
Once CSU completed the project, it presented CFA with a detailed billing statement of
its actual costs. A dispute then arose over the adequacy of CSU' s billing statement. The
parties were unable to resolve their differences, leading CF A to file this unfair practice charge.
Under these circumstances, the issue before PERB would normally be whether CSU's billing
statement represented its actual and reasonable costs. However, during the hearing CF A
repeatedly emphasized that it was not challenging the reasonableness of CSU' s costs. Thus,
although CSU's bill appears excessive at first blush, there is no evidence in the record to
support such conclusion. Instead, the evidence establishes that CF A agreed to pay the actual
costs of complying with the information request but failed to do so when confronted with the
bill. Although CF A could have argued that the bill was unreasonable, it did not do so. Under
these facts, the Board finds that CSU did not violate HEERA by failing to provide necessary
and relevant information.
3

CF A also argues that CSU violated HEERA by refusing to provide CF A direct access
to the requested information. CF A urges the Board to adopt the National Labor Relations
Board (NLRB) rule expressed in Food Employer Council, Inc. (1972) 197 NLRB 651
[80 LRRM 1440] (Food Employer) which held that:
If there are substantial costs involved in compiling the
information in the precise form and at the internals requested by
the Union, the parties must bargain in good faith as to who shall
bear such costs, and, if no agreement can be reached, the Union is
entitled in any event to access the records from which it can
reasonably compile the information. [Emphasis added.]
CF A's argument must be rejected because Food Employer cannot be applied to the facts in this
matter. As noted above, it is undisputed that CF A told CSU to begin complying with the
information request. CFA knew that the information request involved substantial costs and
agreed to pay the "actual costs." Only after CSU had already incurred substantial costs
complying with the information request did CF A request direct access to the data. Nothing in
Food Employer allows such an outcome. The right of direct access granted in Food Employer
must be exercised in the first instance. An employee organization cannot place a costly order
for information and then, once the employer has complied, decide that the bill is too high and
request direct access. If the employee organization believes that the bill is unreasonable or
does not represent the actual costs, the remedy is to file an unfair practice charge with PERB
before the employer incurs substantial costs to comply with the request.2 However, where an
employee organization agrees to pay the actual costs without first determining what level of
cost is reasonable, it cannot decide to cancel its order after the fact and then accuse the
2In situations where irreparable harm may result from the employer's withholding of
necessary and relevant information, the employee organization may always seek injunctive
relief from the Board. (PERB Reg. 32450, et seq.)
4

employer
of
an unfair practice. Thus, under the facts presented here, the holding in Food
Employer is
of
no aid to CF
A.
	Accordingly, for all the above reasons, the dismissal
of
CF
A's
charge regarding the FMI information request must be affirmed.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that Trustees
of
the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA), Government Code section 3571(a)
and (c), by its delays in responding to a request for Weighted Teaching Unit (WTU)
information made by the California Faculty Association (CF A). However, it is found that CSU
did not fail to provide CF A with the WTU information and did not refuse to provide CF A with
records regarding the faculty merit increase. Accordingly, those charges are dismissed.
Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing to meet and confer in good faith with CFA regarding its requests
for necessary and relevant information, by delaying responses to CF
A's
requests for
information.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1.	
Meet and confer in good faith with CF A regarding its requests for
necessary and relevant information, by responding promptly to CF A's requests for
information.
5

2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento Regional Director of the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on CFA.
Members Whitehead and Neima joined in this Decision.
6

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-644-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 (HEERA), Government Code section
357l(a) and (c), by its delays in responding to a request for Weighted Training Unit
information made by the California Faculty Association (CF A).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with the CFA regarding its
requests for necessary and relevant information, by delaying responses to CF A's requests for
information.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF HEERA:
1. 	Meet and confer in good faith with CFA regarding its requests for
necessary and relevant information, by responding promptly to CF A's requests for
information.
Dated: --------- TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FA CUL TY ASSOCIATION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-644-H
PROPOSED DECISION
(3/26/03)
Appearances: Rothner, Segall & Greenstone by Glenn Rothner, Attorney, for California
Faculty Association; Elisabeth Sheh Walter, University Counsel, for Trustees of the California
State University.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
A union representing faculty members claims that the employer, a university,
unlawfully failed its duty to provide certain information requested by the union, and
unlawfully refused to allow access to certain other information. The employer contends that
some information was not provided because the union failed to respond to its requests for
clarification and confirmation, and that access to certain other information was denied because
the employer had already compiled the information and the union refused to pay the agreed-
upon cost.
On August 21, 2001, the California Faculty Association (CFA) filed an unfair practice
charge against Trustees of the California State University (CSU) for violations of the Higher
Education Employer-Employee Relations Act (HEERA). 1 A first amended charge was filed on
September 12, 2001, and a second amended charge on January 7, 2002, alleging in part that
1 HEERA is codified at Government Code section 3560 et seq.

CSU ignored CF A's request for information regarding voluntary work overload. The charge
also alleges that CFA requested information regarding the Faculty Merit Increase Program
(FMI), that the parties negotiated regarding the costs CF A would pay for the production of this
information but failed to reach agreement, and that CSU thereafter refused CFA's request for
access to the information.2 On May 6, 2002, the Office of the General Counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that CSU failed to
provide CFA with the requested work overload information and refused to grant CFA access to
the requested FMI information, in violation of Government Code section 3571(a) and (c).3
CSU denies any wrongdoing. It contends that it could not provide the work overload
information until CF A responded to its request for clarification on the specific type of
information sought, and that it still cannot provide the information until CF A confirms that it
will pay the costs and wants CSU to proceed. As to the FMI data, CSU contends that an
agreement was reached that CFA would pay the actual costs of production, that CSU gathered
the data in reliance on the agreement, that CF A has refused to pay the costs, and that CF A is
therefore not entitled to the data or access to it.
An informal conference was held on August 8, 2002, but the matter was not resolved.
Formal hearing was held at the PERB offices in Los Angeles on November 12, 13, and
December 4, 2002, before the undersigned. After the filing of post-hearing briefs, the matter
was submitted for decision on March 11, 2003.
2 The charge contained other allegations which were withdrawn by CF A.
3 HEERA section 357l(a) makes it unlawful for a higher education employer to
"interfere with, restrain, or coerce employees because of their exercise ofrights guaranteed by
this chapter." Section 357l(c) makes it unlawful to "[R]efuse or fail to engage in meeting and
conferring with an exclusive representative."
2

FINDINGS OF FACT
CSU is a higher education employer within the meaning of HEERA section 3562(g).
CFA is an employee organization within the meaning of section 3562(f)(l ). At all relevant
times, CF A has been the exclusive representative, within the meaning of section 3562(i), of an
appropriate statewide unit consisting of approximately 20,000 of CSU's full-time and part-time
teachers, counselors, and library personnel employed at CSU's 23 campuses.
The most recent Memorandum of Agreement between the parties prior to the events
herein (the Agreement) contained certain provisions regarding the furnishing of information;4
there is no contention that CSU failed these contractual obligations. However, between the
4 Section 6.11 of the Agreement reads in part as follows:
Upon the request of CF A, employee lists including those
generated by PIMS and other public information shall be
provided to CF A as soon as reasonably practicable ....
The cost of such employee lists or public information shall
be borne by CF A except as provided elsewhere in the
Agreement.
Section 31.29 reads in part as follows:
For each year that there are [FMI's], the CSU shall
provide to the CF A ... a report containing a list by campus
of individual faculty unit employees receiving [FMI's],
the amount of each increase, and the total funds expended
on the increases .... In addition, a list of individual faculty
unit employees receiving [FMI's], their rank, the amount
of the increase received, and their department shall be
made public on each campus .... Awards shall also be
,,."""''"'"''"'" by amount of increase, gender, and ethnicity
without individual names.
3

commencement of negotiations for a new contract and its execution,5 disputes arose regarding
CFA's requests for certain information; several letters were exchanged and conversations held
between CFA's Research Specialist Andrew Lyons (Lyons), his superior, Consultant Ed
Purcell (Purcell), and CSU's Assistant Vice Chancellor, Human Resources, Samuel Strafaci
(Strafaci). It is these disputes which inform these proceedings.
Weighted Teaching Unit Information
The Agreement contained, as did the parties' prior agreements, an article entitled
"Workload", which set forth general guidelines for the professional responsibilities,
assignments, and scheduling of CSU' s faculty, whose worktime is measured in Weighted
Teaching Units (WTUs). The standard for tenured faculty was twelve WTUs, and fifteen
WTUs for temporary faculty. 	In addition, a Memorandum of Understanding (MOU), which
has remained in effect since its execution in 1983/1984, provides that faculty members may
engage in "voluntary work overload," i.e., work without pay.
During the early 2001 negotiations, CF A had submitted a proposal for changes in the
Workload article; the proposal did not mention voluntary work overload. However, by letter of
May 10, 2001,6 CFA notified CSU that upon reaching a new contract, "CFA will expect that
all faculty working in excess of the standard 15 WTU workload ... be paid at their appropriate
salary rate for all such work." CSU responded by letter of May 22, stating that "CPA cannot
unilaterally change any campus practice," as change could occur only by agreement of the
parties through negotiations, or unilaterally by CSU after impasse resolution proceedings,
5 The parties commenced bargaining for a successor contract in the spring of 2001;
impasse was declared in July; mediation and fact-finding were pursued; the parties then
resumed negotiations and executed a new contract in March 2002.
6 All dates hereafter refer to the year 2001 unless otherwise specified.
4

should the parties reach impasse. In a letter dated May 27, CFA clarified that its intention was
to negotiate changes in the overload practice and to terminate the 1983/84 MOU. 	In that
letter, CFA requested the following information:
... a list of all faculty who in the current semester or quarter teach
in excess of 12 WTU's ... in tenure track positions or 15 WTU's ...
in temporary positions. Please include in this list the campus and
department of each employee listed, the amount and nature of the
overload in question, and the compensation (if any paid.).
CSU made no response to this request, and CFA did not mention it again, nor did it
raise the issue of voluntary work overload until, in CF A's Request for Impasse Determination
submitted to PERB on June 19, it listed "Overload Payments" as one of the disputed issues.
However, during impasse resolution proceedings as well as during the subsequent resumption
of bargaining, CF A did not mention its information request or the issue of voluntary work
overload. CFA contends it could not make a legitimate proposal on work overload because
CSU had not provided the requested WTU information. During the resumption of bargaining,
Strafaci finally responded to CF A's May 27 request by email of September 27, in which he
asked Purcell whether CFA wanted the data only for the time period after the Agreement
expired, or also for the time period during which the Agreement was still in effect. In
testimony, Strafaci admitted that his response was belated. However, he defended the lapse in
time on the grounds that when CF A sent its May 27 letter, CSU was busy filling other
information requests from CFA as well as from labor organizations representing other units of
employees, that CSU and CFA were at the "peak" of their negotiations, and that it was CSU's
busiest time of year.
Having received no response from CFA, Strafaci gave Purcell a copy of his
September 27 email at the parties' November 9 bargaining session; Purcell claimed he had not
received it, and there is no evidence to the contrary. Accordingly, I find that CF A
5

did not receive Strafaci's September 27 email until November 9. By letter of November 11,
Purcell clarified that CFA would accept overload information for only the spring and fall
quarters of 2001. Strafaci claims that he was later informed by various campuses of the
difference between WTUs earned during direct student instruction and those earned during
non-teaching duties. Thus, by letter to Purcell dated January 14, 2002, Strafaci said he
assumed Purcell wanted only direct instruction data, and asked Purcell to confirm his
assumption before CSU began to collect the data. Receiving no response, Strafaci sent
letter to Purcell dated February 18, 2002, again asking for clarification. In this letter, Strafaci
informed Purcell that data for the spring quarter 2001 could be provided quickly, but data for
the fall quarter 2001 would not be available until late August/early September 2002, and that
the estimated total cost would be $928, based on 16 hours' work by staff with salaries of
$50 per hour.
By letter of August 20, 2002, Strafaci acknowledged Purcell's verbal clarification that
CF A wanted only direct instruction data. Strafaci testified that Purcell had not made this
clarification until shortly before his August 20 letter. In contrast, Purcell testified that he gave
Strafaci a verbal clarification after his January 14 letter but before his February 18 letter;
however, Purcell did not provide any written substantiation of this conversation. Further,
CSU's February 18 letter would make no sense if Purcell had already responded to the
January 14 letter. Accordingly, I do not credit Purcell in this regard, but find that he did not
clarify the request until shortly before August 20.
's 	20 letter also provided estimated costs for production 	the
data and asked for CF A's confirmation that it would pay the costs and that CSU should
proceed with gathering the data. CFA has not responded to the August 20 letter, and CSU has
not produced the WTU data.
6

FMI Information
The Agreement also contained provisions for FMI. 7 On April 2, during contract
negotiations, Lyons, by letter to Strafaci, requested 21 items of information including the
following:
21. An electronic data file in Microsoft Excel format containing
the following information for period 3 (2000/01) of the FMI
program: 	faculty name, faculty identifier, department,
campus, faculty rank (class code and class title), gender,
ethnicity, FMI application status (whether or not the faculty
member applied for a FMI award), FMI award status
(whether or not the faculty member received an FMI award,
Department-level FMI award, Dean-level FMI award,
President-level FMI award), Appeal status (whether or not
the faculty member appealed his/her FMI award), and
Final FMI.
Strafaci responded by letter of April 16, describing generally what efforts would be needed to
compile each item, approximately how long it would take, and the estimated total cost for
several items;8 no breakdown was given for item 21. In the letter, Strafaci requested CFA to
confirm that it would pay "the associated reasonable costs." He also noted that someof the
data, including FMI data, had already been included in the monthly tapes which CSU had
periodically provided CF A pursuant to section 31.29 of the Agreement. However, although
CSU' s compliance with this section, as well as with section 6.11, is not contested, at no time
did either CSU or CFA claim that the FMI data requested in item 21 was covered by either of
7 The parties' new agreement does not contain an FMI program.
8 CSU believed some of the items would be easy to produce, thus no costs would be
to past practice, when complex or voluminous data was requested, CSU
would notify CF A of the expected cost, CF A would agree to pay, CSU would gather the
and bill CF A, CFA would pay the bill, and CSU would then tum over the data. Pursuant to a
side-agreement between the parties, CSU had previously provided FMI data under section
31.29 of the Agreement and had not charged CF A; that side-agreement did not extend to the
2000-2001 school year.
7

these sections or that the Agreement required CFA to bear the cost. To the contrary, Strafaci
acknowledged that item
21
seeks data in addition to that required
by
the Agreement.
In a letter dated April 16, Lyons requested the following accounting for the items
sought on April
2:
... please provide the CF A with a detailed accounting as to how
you arrived at the estimated amounts ... for each information item ...
total number
of
pages ... charge per page ... estimated number
of
person hours ... hourly wage paid ... any other applicable
costs. 	[Emphasis supplied.]
By letter
of
April 25, Strafaci explained that his estimates were based on a $50 per hour wage
rate plus benefits, and a $.25 per page copy cost.
On May
7,
the parties exchanged several letters by facsimile transmission: 9
(1) 	Lyons wrote that CFA "requests that you proceed in processing the following
information request items," basically restating the April 2 request. Lyons also requested the
following:
Please maintain a detailed work log that tracks the number
of
hours
Chancellor's Office employees spend on accumulating this data.
Please forward a detailed accounting
of
the actual costs
of
completing
this request to CF A. [Emphasis supplied.]
(2) 	Strafaci sent Lyons a letter providing for CF
A's
signature to its agreement to
pay "for the actual cost
of
collection
of
the data." According to Strafaci, when he had
previously presented Lyons with certain other requested data, Lyons reviewed it, complained it
was not in the proper form, questioned its usefulness, and refused to pay for it; CSU
reconfigured the data in a different form and provided it to CFA at no cost. Thus, Strafaci
9 It appears that the facsimile transmissions were in the chronological order cited
herein; however, it is not clear in what order the letters themselves were written.
8

wanted to ensure that CF A was committed to paying for the remaining items before he ordered
them produced.
(3) 	In yet another letter
of
the same date, Lyons told Strafaci that:
[CF Al agrees to pay for the actual cost
of
the collection
of
data
requested per the May
7,
2001 letter ... provided the costs
assessed accurately reflect the work performed and the CFA is
provided with a detailed accounting as to how the actual costs
were calculated. Along with the accounting, please include a
work log tracking the number
of
hours Chancellor's Office
employees spend on the various tasks related to collecting this
data. 	[Emphasis supplied.]
(4) 	Purcell also wrote to Strafaci, stating in part:
This will serve as the CF A response to your April 25 letter to Mr.
Lyons concerning the costs
of
providing CFA with various pieces
of
information relevant to the current bargaining effort.
Although we understand that the costs cited by you are only
estimates, these estimates appear exorbitant to us and not
reflective
of
real costs. Never-the-less, CFA is prepared to
reimburse the CSU for its actual costs in producing all
information requested previously by the Union
....
Noting that your estimates are itemized according to each
individual Union request, we will expected [sic] from you an
itemized bill for each piece
of
data or document provided which
should include the name
of
the person(s) performing the work in
question, said employee's wage rate ... and the number
of
hours
required. 	We will also expect to receive the detail
of
any other
costs which you seek to assess such as the "associated benefit"
costs referenced in your letter. Please also provide detail[s]
substantiating your statement that photo copying costs are $.25
per page
....
Please continue to work with Mr. Lyons concerning any
of
the
specifics
of
the information request or your response. Based on
this confirmation
of
the Union's desire to proceed, we will expect
data requested to be transmitted to the Union on the schedule
previously referenced by you. 	[Emphasis supplied.]
By letter of May 16, Strafaci questioned the basis for Purcell's statements that the CSU
estimates appeared "exorbitant" and "not reflective ofreal costs." He assured CF A that CSU
9

would provide the total number
of
hours, as well as the salary and benefit cost,
of
each
employee gathering each item
of
data, and that the $.25 per page was "consistent" with the
Public Records Act. Strafaci also stated, in the last paragraph:
Therefore, I believe that we have an agreement on the manner in
which the CSU will bill the CFA for the actual cost
of
producing
this data.
	If
the CF A is willing to reimburse the CSU when we
present the billings to the Union as noted above, then we wiU
provide the information that has been gathered. Please be advised
that
if
the Union is not willing to provide payment upon receipt
of
the billing, then we will not provide the information. We will now
begin the production
of
the data pursuant to these conditions.
(Emphasis supplied.)
Purcell responded on May 27, stating in part:
We apparently disagree about your cost estimates, but CF A has
conceded that they are only estimates. The
proof
here will be in
the pudding as is sometimes said. We trust that your billing will
contain the detail requested so that CF A can verify the charges in
question.
If
the last paragraph
of
your letter is, in fact, its purpose, there
may be a problem. Much,
if
not all,
of
the information sought by
the Union is information to which it is entitled under HEERA and
not subject to legitimate charge. Never-the-less, the Union in
good faith has indicated a willingness to pay subject to a
verification
of
the billing. That verification will not be possible
until both the material sought and the billing is received.
(Emphasis supplied.)
On May 30, Strafaci presented Purcell with a detailed "billing breakdown"
of
several
other items requested by CF A on May 7, not including item 21, for a total cost
of
approximately $3,300. Responding by letter
of
the same date, Purcell stated that the billing
"does not meet previously established standards for verification," principally because it did not
contain employee names or a "substantiation"
of
their wage rates, which CFA required.
Purcell accused Strafaci
of
"hold[ing] this data hostage" to CF A's prior payment without CFA

first receiving the required billing details or verification that the data "is what was requested or
has produced usable results." In closing, Purcell stated:
In addition to the detail requested above, I request that Mr. Lyons
be allowed to review the material which has been generated to
verify its contents and usefulness. Upon this verification and the
billing details previously referenced, CFA will pay the
appropriate amount. 	[Emphasis supplied.]
In tum, Strafaci, by letter
of
June 5, accused Purcell
of
raising new conditions, i.e., that
CF A would not pay for the data until the billing was verified, that the billing could not
be
verified until after CF A received the data, and that CSU provide the names
of
the employees
who compiled the data. 	Strafaci stated that he would not provide the employees' names;
however, in order to resolve the matter, he would allow Lyons to review the data. After this
review, and after a modified request consolidating certain items, CF A paid the bill and
received the data.
By letter
of
August
1,
Strafaci provided a "sample"
of
the FMI data showing the form
in which it would be provided. The letter also contained the first cost breakdown for item
21
in an attachment entitled "Cost Estimate To Provide FMI Data To CFA,"
10
showing
job
classifications, hourly salaries, hours worked, and totals for each campus, for a grand total
of
over $39,000, which, the letter noted, would be increased to $45,000 with the addition
of
fringe benefit costs.
11
It is undisputed that CFA understood that filling its request would be
costly, as CFA wanted it in a form different from that which had been historically used to
10
Strafaci testified the attachment was mistitled, as it showed not estimates but actual
costs already incurred. And in its post-hearing brief, CSU noted that the body
of
the August 1
letter referred to the attachment as "actual salary costs." I agree with CSU, and I find that the
attachment, read along with the letter itself, showed actual costs, not merely estimates.
11
The letter also stated that additional costs would be incurred by those few campuses
which had not yet begun producing the data.
11

produce the FMI "tapes" under section 31.29
of
the Agreement, thus a new template had to
be
developed, and as production
of
the data would require extensive work at each individual
campus. 	However, Purcell testified, CF A had serious concerns about the cost breakdown
in
Strafaci
's
August 1 letter, to wit: it did not contain the names
of
the employees who produced
the data; work hours appeared to be rounded
off
rather than calculated in fractions, as in, e.g.,
attorney billings; and there were large discrepancies in the amounts charged
by
the various
campuses, with some larger campuses charging in the hundreds
of
dollars while some smaller
campuses charged in the thousands. 12
There is no evidence that CFA communicated these
concerns to Strafaci.
Strafaci testified, in general terms, to two conversations with CF A agents after
his
August I letter. One conversation was with CF
A's
general manager, who suggested that CSU
split the cost; Strafaci rejected the suggestion. The other conversation was with Lyons, who
also objected to the cost and claimed the parties were at impasse; Strafaci responded
that
they
had already bargained the cost and reached agreement that CF A would pay actual costs.
	By
letter
of
August 14, Lyons accused CSU
of
failing to bargain in good faith about the
cost
13 for
item 21, and stated as follows:
It is clear that the parties will not be able to agree upon a
reasonable charge for the FMI data. As such, CFA request [sic]
access to records from which we can reasonably compile the
incremental FMI data sought in request item #21. Specifically,
CF A requests access to the same records campus personnel
used ... and access to any Chancellor's Office databanks or files
....
12 Strafaci testified that different campuses have different levels
of
technology, thus it
may take a large, highly technical campus far less time to produce the data than a small
campus without sophisticated technology.
13
CF A has consistently taken the position in these proceedings that it is not contesting
the reasonableness of CSU's cited costs.
12

Please contact me with details
as
to how the CSU will
make the appropriate records available to CFA and how CF A
personnel may go about accessing such records. 	[Emphasis supplied.]
By August
15
letter to Lyons, Strafaci wrote that "we have already concluded our
bargaining regarding whether or not the CFA will pay for the cost
of
producing the FMI data -
and 	the other data that you have requested." As evidence
of
the parties' cost agreement,
Strafaci cited the May
. 7 letters
of
both Lyons and Purcell, as well as CFA's payment for, and
receipt of, the other requested items on the same basis as the item
21
data was being offered.
Strafaci noted that the law "does not require that the CSU provide unlimited access to our work
files so that the CFA may engage in its own collection efforts," that CSU had gathered the
item
21
data in reliance on the parties' agreement, and that CF A should now honor that
agreement and reimburse CSU for its work.
CFA has not paid any costs for the production
of
the FMI data, and CSU has given
CFA neither the data nor access to the underlying records.
ISSUES
1.
Did CSU unlawfully fail to provide CFA with requested WTU information?
2. Did CSU unlawfully refuse CFA access to requested FMI information?
CONCLUSIONS OF LAW
WTU Information
The exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge
of
its duty
of
representation, and failure to provide such information
is a per se violation
of
the duty to bargain in good faith. 	(Chula Vista City School District
(1990) PERB Decision No. 834; Stockton Unified School District (1980) PERB Decision
No. 143 (Stockton).) PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of the requested information. Thus, in Stockton, PERB noted that:
13

In defining the parameters
of
"necessary and relevant
information" to which the representative is entitled, the courts
have concluded that information pertaining immediately to
mandatory subjects
of
bargaining is so
intrinsic to the core
of
the employer-employee relationship that it is considered
presumptively relevant and must be disclosed unless the
employer can establish that the information is plainly
irrelevant and can provide adequate reasons why it cannot
furnish the information. [Citations; emphasis in original.]
And in Los Angeles Unified School District (1994) PERB Decision No. 1061, PERB stated:
... an exclusive representative is entitled to information
sufficient to enable it to understand and intelligently
discharge its duty to represent bargaining unit members
....
Here, CSU never questioned CF A on the necessity or relevance
of
its request for the
WTU data concerning voluntary work overload. However, in its post-hearing brief, CSU
argues that the data was not necessary, as CF A never made a proposal regarding voluntary
work overload, nor did it ever bring that issue to the table. CFA contends that its May 10,
2001, letter and its request for impasse determination show that it intended to bargain this
issue, but that it was unable
to
make a legitimate proposal because CSU had not provided the
requested WTU data.
In this regard, I do not agree with CSU's argument, as it is made only in hindsight;
rather, I am persuaded by CF A's contention that,
if
the WTU data had been timely provided,
CF A might very well have made a proposal to delete the voluntary work overload program. As
to
relevance, the request seeks information on compensation paid to bargaining unit
employees, clearly a mandatory subject
of
bargaining. Thus, there is a presumption
of
relevance (Stockton; Compton Community College District (1990) PERB Decision No" 790
(Compton)), which CSU does not contest. Accordingly, I find the request for WTU data to be
necessary and relevant to CF A's duty to bargain on behalf of its unit members, and thus
entitled to the information.
14

I now consider
CSU's
failure to provide the information. 	The National Labor Relations
Board (NLRB), whose decisions PERB appropriately applies as precedent when analyzing
bargaining obligations (San Mateo County Community College District (1979) PERB Decision
No. 94), holds that
if
a union's request for information is ambiguous, the employer must seek
clarification. 	(Keauhou Beach Hotel (1990) 298 NLRB 702 [134 LRRM 1245]; E.I.DuPont de
Nemours & Company, Inc. (1988) 291 NLRB 759 [131 LRRM 1390].) 	Following that
premise, PERB has held that once the employer asks for clarification, the union must clarify its
request prior to the employer's obligation to fulfill it. (See, e.g., Oakland Unified School
District (1982) PERB Decision No. 275.) However, the employer must respond promptly; it
cannot simply ignore a request. 	(State
of
California (Department
of
Corrections) (2000) PERB
Decision No. 1388-S.) Thus, a delay
of
six months (Azusa Unified School District (1983)
PERB Decision No. 374) and even one as short as two months (Colonial Press, Inc. (1973) 204
NLRB 852 [83 LRRM 1648]), without employer explanation, have been held to be failures to
negotiate in good faith.
CSU claims that it only caused one excusable delay, i.e., from CF
A's
letter
	May
27
to CSU's response
of
September 27, and that all other delays were caused by CF
A's
failure to
respond to its requests for clarification. In that regard, Compton is instructive. There, PERB
held that the employer's delay
of
five months was unlawful, and discredited its defense:
[T]he general statement by the District's personnel director
that his department's workload was heavy does not explain
why the clerical task
of
gathering all the information could
not be completed for almost five months
....
(Compton at p. 5.)
Here, CSU's first delay lasted four months. CSU's claim that it was very busy filling other
information requests and that it was at the "peak" of negotiations is not a sufficient excuse for
making no response at
aH
(Compton); at the very least, CSU could have explained its situation
15

to CFA and sought CFA's agreement to postpone producing the WTU data. Further, CSU
caused another delay of over two months, from CF A's first clarification on November 9 to
CSU's request for a second clarification on January 14, 2002. CSU offered no explanation for
this second delay.
Accordingly, I find that CSU failed its duty to meet and confer in good faith with CF A
by unlawfully delaying its first response to CF A's information request, 14 in violation of
HEERA section 357l(c). I further find that by this conduct, CSU interfered with right of the
unit employees to be represented by CFA, in violation ofHEERA section 357l(a).
However, I do not find that CSU unlawfully failed to provide the information, as CFA
has not responded to CSU's letter of August 20, 2002, confirming that it still wants CSU to
proceed with gathering the WTU data and that it will pay the costs.
FMI Information
It is well-settled by PERB that if the employer demonstrates substantial cost involved in
providing the information in the precise form requested, the parties must bargain in good faith
as to who will bear those costs. (Los Rios Community College District (1988) PERB Decision
No. 670.) Here, CSU contends that it bargained in good faith with CFA, the parties reached
agreement that CF A would pay the cost, CSU compiled the data, but CF A has refused to pay
for it. 	For its part, CFA does not question the high cost of producing the data. However, CFA
contends that, while there was an agreement "in principle" that CFA would pay the actual
costs, no agreement was reached "in practice" as to what cost details would be provided and
14 "Delay" was not specifically alleged in the charge or complaint. However, PERB
has held that an unalleged violation may be found by the trial judge provided it is intimately
related to the subject matter of the complaint, part of the respondent's same course of conduct,
and was fully litigated at the hearing, with respondent having the opportunity to examine and
cross-examine witnesses. (Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668.) I find that the instant hearing fulfills these requirements.
16

whether CF A would be able to review the data before paying for it. In its post-hearing brief,
CF A characterized this failure to reach agreement as an impasse. 15 Alternatively, CF A
contends that even assuming arguendo an agreement was reached, CF A's verification of the
cost was a condition precedent to its paying for the data, and CSU has not provided sufficient
details to do this, as CSU did not provide either the names of employees or a proper work log.
CF A argues that under either theory, it should be given access to the underlying FMI records.
Thus, the first issue which must be decided is whether the parties reached an agreement
on the cost of producing the FMI data. 	"[T]he essential question to be determined is whether
the parties reached a meeting of the minds on all material and substantive terms." (Transit
Service Corp. et al (1993) 312 NLRB 477, 481-482 [145 LRRM 1295] (Transit Service).) 	In
the Transit Service case, the issue was whether the employer had unlawfully refused to execute
a collective bargaining agreement. It was undisputed that the parties had agreed on all other
terms; however, they each believed a different date had been chosen as the effective date of the
agreement. 	Thus, while "technical rules of contract law do not necessarily control the
formation of a collective-bargaining agreement," and an agreement may be inferred by other
15 The NLRB has held that if the parties fail to reach agreement on the costs for
providing requested information, the requesting party is entitled to access to the underlying
records. 	(Safeway Stores, Inc. (1980) 252 NLRB 1323 [105 LRRM 1420], enf. (10 th Cir.
1982) 	1 F.2d 953 [111 LRRM 2745], citing Food Employer Council, Inc. (1972) 197 NLRB
651 [80 LRRM 1440].) PERB has not yet been presented with this issue, but I take note that in
the Proposed Decision in Regents of the University of California (2001) PERB Decision
No. HO-U-781-H [25 PERC 32051], the administrative law judge interpreted the NLRB cases
as requiring access after impasse is reached. No exceptions were filed to this Proposed
Decision, thus, it became final, but is non-precedential. Nevertheless, both parties cite the
Proposed Decision in their post-hearing briefs, with CSU presenting an alternate theory that,
assuming arguendo the parties did reach impasse, CF A did not seek the required impasse-
resolution proceedings, thus it is not entitled to access to the records. However, in light of my
final conclusion, supra, I need not reach the issue of what should happen under 	·~~HH 	if the
parties failed to reach agreement.
17

conduct of the parties, the NLRB utilized contract law principles in finding that the parties
made a "mutual mistake" as to the effective date, and held that as there was no meetingof the
minds, there was no contract. 	(See also, Intermountain Rural Electric Association (1992) 309
NLRB 1189, 1192-1194 [142 LRRM 1355].)
As to contract law, in Witkin, Summary of California Law, Ninth Edition (1987),
Vol. I, Contracts, p. 172, the author quotes several cases for the proposition that the law will
"liberally interpret. .. agreements and non-technical language" in upholding the existence of
agreements:
If the parties have concluded a transaction in which it appears
that they intend to make a contract, the court shall not frustrate
their intention, if it is possible to reach a fair and just result,
even though this requires a choice among conflicting meanings
and the filling of some gaps that the parties have left.
Rivers v. Beadle (1960) 183 Cal. App. 2d 691, 695.
The law does not favor but leans against the destruction of
contracts because of uncertainty; and it will, if feasible, so
construe agreements as to carry into effect the reasonable
intentions of the parties if that can be ascertained.
Mclllmoil v. Frawley Motor Co. (1923) 190 Cal. 546, 549.
The trial court properly refused ... an overly meticulous
insistence on completeness and clarity of written
express10n.
Masterson v. Sine (1968), 68 Cal. 2d 222, 224-225.
In support of its position that there was no cost agreement "in practice," CFA points to
the following: Lyons' letter of May 7 asking for a work log; Purcell's letter of May 7 asking
for the names of employees who compiled the data and a detailed substantiation of the $.25 per
page copying cost; and Purcell's letter of May 27 stating that "verification [of cost] will not be
possible until both the material sought and the billing is received." CSU failed toprovide a
or 	detailed substantiation of copying cost, refused to provide employee names,
and insisted CF A pay for the data before seeing it. 	Thus, CF A argues, there was no agreement
18

as to how CF A could verify the cost. Further, there could not have been agreement on the cost
itself, as CSU did not present the first cost breakdown until August 1, 2001, after it had
compiled the data.
For its part, in support of an agreement having been reached, CSU relies on Lyons' two
May 7 letters, one of which told CSU to "proceed in processing the ... information request
items," including item 21, the other of which stated that CFA "agrees to pay for the actual cost
the collection of data requested," and on Purcell's May 7 letter stating CF A's "confirmation
of the Union's desire to proceed." Thus, in accordance with past practice, CSU gave CFA a
cost breakdown and a sample of the data, gathered all the data, and billed CFA for it.
CSU further contends that it gave CFA sufficient information with which to verify the
cost. According to CSU, the names of employees who compiled the data were unnecessary so
long as their classifications and wage/benefit rates were provided. CSU argues that it is
ludicrous to believe that CF A intended to contact each employee to verify their salaries and
hours worked. As for work logs, CSU claims that most businesses, e.g., construction
companies, do not provide these nor do they break work hours down into fractions; this is done
only by attorneys. Further, CSU notes that CF A requested logs only for work done by
employees of the Chancellor's office, none of whom did any of the work on item 21; all the
work was done on the various campuses. And as for copying cost, CSU argues that its
notification to CF A that $.25 was consistent with the Public Records Act was sufficient
verification. 	CSU notes that neither employee names, nor work logs, nor further justification
costs had ever been requested or provided to verify any data which CFA paid for,
data requested in its April 2 letter, other than item 21"
I find that an agreement was reached. 	CFA had consistently given CSU the "go-ahead"
to proceed with producing the all of the data requested on April 2, including item 21, and
19

assured CSU that it would pay the "actual costs," without suggesting that any cap be put on the
total, and notwithstanding that it did not know what those costs would be and that neither its
request for a work log or the names of employees had been confirmed by CSU. Further, CFA
paid for the other items without receiving employee names or work logs. Thus, I do not find
that CFA considered employee names and work logs to be essential elements of the agreement.
Rather, I find that the agreement assumed CSU would provide a reasonable accounting.
Nor do I find the timing of CF A's obligation to pay vis-a-vis its receipt of the data to be
an essential element of the agreement. 	In this regard, I note that when presented with the
April 2 data other than item 21, CFA asked to review it before paying, was given that
opportunity, and with one exception paid the billing. However, CFA did not request an
opportunity to review the FMI data before paying for it. Nor did CFA raise any objection to
the sample FMI data provided in CSU's August 1 letter. Thus, apparently CFA was satisfied
that the data had been, or would be, produced in the requested format. 	Nor did CFA raise any
objection, upon receipt of the August l letter, to the absence of employee names or work logs.
What CFA did object to was the cost. However, long before the August 1 letter, CFA had
confirmed that it would pay "actual costs," without knowing what those costs would be. 	Thus,
apparently CF A was satisfied that CSU would charge a reasonable cost. Further, as noted
supra, CFA does not now contest the reasonableness of the cost for item 21. Thus, I do not
find that CFA had any obligation after August 1 to bargain regarding costs.
Accordingly, I find that the parties "reached a meeting of the minds on all material and
substantive terms" of a cost agreement on item 21. (Transit Service.) The terms of that
agreement were that CSU produce and present the information sought by CFA on April 2,
including item 21, and that CFA would reimburse CSU for its actual costs, provided that CFA
was 	a detailed accounting from which it could verify the costs. I also find that CSU
20

fulfilled its part of the agreement, by providing an accounting which included employee
classifications, hourly wages, hours worked, and totals for each campus. This accounting was
both reasonable and sufficient to enable CF A to verify the costs. Even assuming arguendo that
verification was a condition precedent, I find that this condition was satisfied. Thus, I cannot
find that CSU violated its duty to meet and confer in good faith with CF A, or that, under any
theory, CSU was obligated to allow CF A access to the FMI records.
REMEDY
HEERA section 3563.3 gives PERB:
... 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 ... as will effectuate the policies of this chapter.
CSU twice delayed responding to CF A's request for WTU information, in violation of
HEERA section 3571(a) and (c). Thus, it is appropriate that CSU be directed to cease and
desist from its unfair practice, and to affirm that it will meet and confer in good faith with CF A
regarding its requests for necessary and relevant information. (Trustees of the California State
University (1987) PERB Decision No. 613-H; Azusa Unified School District, supra, PERB
Decision No. 374.)
It is also appropriate that CSU be required to post a notice incorporating the terms of
the order, signed by an authorized agent of CSU. It effectuates the purposes ofHEERA that
employees be informed by a notice, signed by an authorized agent, that the respondent has
acted unlawfully, is being required to cease and desist from its unlawful activity, and will
comply with the order. (Ibid.)
CSU argues, on brief, that it should be awarded equitable relief, and that CFA should
be ordered to pay as billed for the FMI data. However, there is no charge or complaint against
CFA in these proceedings, and it not within PERB's authority under HEERA section 3563.3 to
21

order a remedy against a party who is not charged and found to have committed an unfair
practice.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, it is hereby found that the Trustees of the California State University (CSU)
violated the Higher Education Employer-Employee Relations Act (HEERA), Government
Code section 3571(a) and (c), by its delays in responding to a request for Weighted Teaching
Unit (WTU) information made by the California Faculty Association (CF A).
However, those portions of the complaint alleging that CSU failed to provide CFA with
the WTU information, and failed to provide CF A with access to underlying records regarding
the Faculty Merit Increase program (FMI), are hereby dismissed.
Therefore, pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its
governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
Failing to meet and confer in good faith with CF A regarding its requests for
necessary and relevant information, by delaying responses to CF A requests for information.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1. 	Meet and confer in good faith with CFA regarding its requests for
necessary and relevant information, by responding promptly to CF A's requests for
2. 	Within ten (10) working days after service of a final decision in this
matter, post at all work locations where notices to unit employees employed at CSU
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
22

be signed by an authorized agent of CSU, indicating that CSU will comply with the terms of
this Order. Such posting shall be maintained for a period of thirty (30) consecutive working
days. Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced, or covered with any other material;
3. 	Upon issuance of a final decision in this matter, make written
notification of the actions taken to comply with this Order to the Sacramento Regional Director
of PERB in accord with the director's instructions.
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 or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the dose of business on the last day for filing together with a Facsimile Transmission Cover
23

li weJdman
Sheet 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).)
Ann L. Weinman
Administrative Law Judge
24