Trustees of the California State University (PERB 1871H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
e
STATEWIDE UNIVERSITY POLICE
ASSOCIATION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No.LA-CE-901-H
PERB Decision No. 	1871-H
December 	2 8 , 	2006
Appearances: Adams, Ferrone & Ferrone by Stuart D. Adams, Attorney, for Statewide
University Police Association; Marc. D. Mootchnik, University Counsel, for Trustees of the
California State University.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the Statewide University Police Association (SUPA) of a dismissal (attached) of
its unfair practice charge. 	The charge alleged that the Trustees of the California State
University (CSU) violated sections 3565, 3566, 3571, and 3572 of the Higher Education
Employer-Employee Relations Act (HEERA).1 Specifically, SUPA alleged that two emails
sent by CSU directly to unit members constituted interference with SUPA's right to represent
its members. 	Additionally, SUPA alleged that CSU's placement of a time limit on an offer
constituted failure to meet and confer; discrimination; retaliation; and punitive action. 	This
case included a request to seek injunctive relief. 	The Board agent dismissed the charge.
1HEERA is codified at Government Code section 3560, et seq.

The Board has reviewed the entire record in this case, including, but not limited to, the
unfair practice charge, the amended unfair practice charge, CSU's position statement, the
warning and dismissal letters, the appeal letter, and the CSU's opposition to the appeal. Based
on this review, the Board adopts the warning and dismissal letters as the decision of the Board
itself.
ORDER
The unfair practice charge in Case No. LA-CE-901-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neuwald joined in this Decision.
22

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax:(916)327-6377
September 26, 2005
Stuart D. Adams, Esquire
Adams, Ferrone & Ferrone
660 Hampshire Road, Suite 204
Westlake Village, CA 91361
Re: 	Statewide University Police Association v. Trustees of the California State University
Unfair Practice Charge No. LA-CE-901-H
DISMISSAL LETTER
Dear Mr. Adams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 11, 2005.1 The Statewide University Police Association
(SUPA) alleges that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA)2 by dealing directly with employees
regarding the status of ongoing negotiations.
I indicated to you in my attached letter dated August 24, 2005, 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 which 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 September 2, 2005, the charge would be
dismissed.
Following the granting of additional time to amend the charge, a first amended charge was
filed via fax on September 8, 2005. In this amended charge you provide details of the extent of
circulation of Samuel Strafaci's August 3 e-mail. 	(Eight campus representatives responded
that the e-mail was circulated to Unit 8 members.) In addition you point out that SUPA
President, Jim Procida, was telephoned by two SUPA Representatives seeking an explanation
of the e-mail.
Furthermore, SUPA raised a new allegation in the amended charge regarding what transpired
as the parties met in further negotiations on August 22. At that meeting CSU made its "last
best and final offer." SUPA indicated that it believed an impasse existed but it would present
its final offer to CSU on September 2. On August 23, you received a fax from CSU's
The Exhibits referenced in the charge were filed on August 15, 2005.
2HEERA 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-901-H
September 26, 2005
Page 2
negotiator, Sharyn Abernatha, which indicated that CSU's offer of a 5.5% increase was
conditioned on SUPA's acceptance by Monday, August 29. 	SUPA wished to object to CSU"s
"regressive and conditional bargaining" but, "due to scheduling" SUPA never disputed or
accepted the offer. 	On August 30, when you called Sam Strafaci, CSU confirmed that the
5.5% offer was rescinded. 	You contend that CSU's offer and then withdrawal of the offer
evidences bad faith. 	You indicate that PERB does not tolerate conditional bargaining and cited
State of California (1998) PERB Decision No 1249-S (State); Modesto City Schools (1983)
PERB Decision No. 291 (Modesto) and Muroc Unified School District (1978) PERB Decision
No.80 (Muroc).
In reviewing these cases I draw a different conclusion. In the State case the Board upholds the
dismissal of an unfair practice charge which alleged that the employer had proposed that in
exchange for the State meeting the union's economic demands the employer wanted the
union's commitment to support legislation meeting the employer's non-economic demands
relating to civil service reforms. 	The Board Agent apprised the charging party that under
Fremont Unified School District (1980) PERB Decision No. 136 there was no violation of the
law if a party conditions a proposal on something within the control of the negotiators. (In
Fremont the employer's proposal relied on a tax measure to be approved by voters and thus
was held to be outside the control of the negotiator and an illegal proposal.) In the instant case,
the time limits placed on the proposal were within the control of the parties and thus not
illegal.
In Modesto the issue was whether an employer's insistence on both a no-strike clause and
exclusion of a binding arbitration clause was evidence of conditional bargaining. 	The Board
held that the employer did not condition its proposals only to avoid a contract.
In Muroc the 'condition' which was reviewed was whether bargaining would occur without a
tape recorder. 	The union contended that the employer evidenced bad faith by refusing to meet
if the union insisted on tape recording negotiations. The Board found that the employer
objected but did not refuse to meet and therefore there was no condition placed by the
employer on continued bargaining.
The condition you assert as violative was a deadline placed by CSU on its offer. I have found
no case law to support the theory that such a proposal by itself is evidence of bad faith.
Therefore this allegation will be dismissed.
The other new allegation in the September 8 amended charge is that an August 25 internal
administration e-mail was again forwarded to Unit 8 members from at least one campus Chief
of Police to police officers at CSU Monterey Bay. This e-mail indicates that it is a status
report following the August 22 negotiations meeting.
SUPA disputes four comments made by Strafaci in the report. First, he describes the two
major areas of disagreement as being the Holiday and Salary articles. 	SUPA points out that
there are more than two areas and lists: on-call pay, call back hours for court, consecutive work

LA-CE-901-H
September 26, 2005
Page 3
days and days off and plus/minus time as major disagreements. 	Second, SUPA disputes CSU's
description of holiday credit for future use. 	CSU describes SUPA's proposal as:
Employees will not receive the additional compensation provided
in the current contract for working on the holiday.
SUPA states its proposal provides that members may choose whether to receive straight pay or
holiday credit at the member's choice as well as other enhancements. Third, SUPA believes
that CSU's e-mail is misleading because it states CSU's proposal regarding limiting the
amount of holiday credit that could be accrued at 100 hours and paying employees for any that
already surpassed the 100 hours, fails to indicate that the choice of pay or credit is up to the
Administration, not the member. Finally, SUPA states it is seeking a Service Based Salary
Increase of 4.6% not 2.3% in the first two years of the contract as CSU asserts.
As I pointed out in my August 24 letter, PERB has held that although accurate reporting of the
status of negotiations or the nature of the proposals exchanged is permissible, an employer
must refrain from a campaign of communications to sway the views of the employees while
maintaining an inflexible position at the negotiating table. 	Such conduct bypasses and
undermines the exclusive representative. (Muroc Unified School District, supra, PERB
Decision No. 80 at 25; see also California State University (1989) PERB Decision No. 777-H,
at 2-4 (CSU).
An employer may not communicate proposals to employees before first submitting them to the
exclusive representative, seek to bargain directly with employees, or invite them to abandon
their representative to achieve better terms directly from the employer. (See United
Technologies Corp. (1985) 274 NLRB 1069, 1074 [118 LRRM 1556].) 	Nor may the
employer engage in a campaign to disparage the exclusive representative's negotiators so as to
drive a wedge between union representation and the bargaining unit employees. 	(See Safeway
Trails, Inc. (1977) 233 NLRB 1078, 1081-1082 [96 LRRM 1614].)
The alleged misrepresentations in the August 25 e-mail do not appear to rise to the level of a
"campaign to disparage" SUPA. Nor are they so detailed as those in CSU where the
Chancellor informed the CSU workforce that despite ongoing negotiations with unions, the
employer intended to implement salary increases and referenced the effective date and the
exact percentage. 	The Board upheld the Hearing Officer who found that the comments by the
Chancellor in her "Wrap-Up" did cross the "fine line" of employer free speech by suggesting it
was the sole authority of the employer to impose salary increases and their timing.
Those facts are not alleged here. Rather, there is a dispute in the manner in which negotiations
are described. The explanation of proposals by Strafaci while not complete in SUPA's view,
do not attempt to confuse employees or disparage SUPA's proposals. 	The alleged
misstatements by CSU may be viewed as "spin" that seeks to explain the status of negotiations
from their perspective. 	The audience of the message is first of all campus administrators. The
fact that certain managers share the document with Unit 8 members does not evidence a

LA-CE-901-H
September 26, 2005
Page 4
campaign by CSU to undermine SUPA or its bargaining positions. Neither statement is
pejorative or states SUPA is responsible for there not being a new agreement.
None of the other indicia of bad faith are specifically alleged in the charge. Without that
information, a case for totality of circumstances is not established either.
Therefore, I am dismissing the charge based on the facts and reasons contained in this and my
August 24 letter.
Right to Appeal
-	-
Pursuant to PERB Regulations,3 you 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. 	(Regulation 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 before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 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 which meets the
requirements of 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
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. (Regulation 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 Regulation 32140 for the required contents and a
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-901-H
September 26, 2005
Page 5
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, 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. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By.
Roger Smith
Labor Relations Specialist
Attachment
cc: Marc D. Mootchnik

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERS
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax:(916)327-6377
August 24, 2005
Stuart D. Adams, Esquire
Adams, Ferrone & Ferrone
660 Hampshire Road, Suite 204
Westlake Village, CA 91361
Re: 	Statewide University Police Association v. Trustees of the California State University
Unfair Practice Charge No. LA-CE-901 -H
WARNING LETTER
Dear Mr. Adams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 11, 2005.1 The Statewide University Police Association
(SUPA) alleges that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA)2 by dealing directly with employees
regarding the status of ongoing negotiations.
My investigation of the charge has revealed that SUPA is the exclusive representative of a unit
of law enforcement personnel at CSU, Unit 8. 	CSU and SUPA have been in negotiations for
many months following the expiration of the most current MOU on June 30, 2004. On August
3, 2005, Assistant Vice Chancellor of Human Resources, Samuel Strafaci, sent an e-mail to
Chancellor Charles Reed, Human Resources Directors and Vice Presidents of Business at each
campus giving an update on the status of negotiations. Vice Chancellor Jackie McClain then
forwarded Stafaci's memo to the Chiefs of Police at each CSU campus. 	The e-mail indicates
that it may be shared with Unit 8 members.3
SUPA states that the e-mail contains numerous errors and misstatements that has caused SUPA
President Procida, to answer phone calls and e-mails correcting the information. 	SUPA asserts
that the misinformation was a deliberate attempt to undermine the union. The misstatements
are as follows:
1. "At SUPA's request the parties have not met since February 9, 2005." SUPA argues
1 The Exhibits referenced in the charge were filed on August 15, 2005.
2HEERA 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.
3 SUPA President, Jim Procida, indicates that some Chiefs forwarded the e-mail to all
Unit 8 members, others forwarded it to SUPA delegates at their campus and other Chiefs did
not forward the e-mail at all.

LA-CE-901-H
August 24, 2005
Page 2
that it made no such request but instead agreed to await the "May revise" of the
State budget as suggested by CSU 's representative, Sharyn Abernatha. 	SUPA
indicated it was ready to declare impasse in February but decided to await CSU's
new offer.
2. "When contacted by the CSU in May, the Union requested that the CSU provide a
proposal by mail." This creates the impression that the CSU was proactive while
SUPA did nothing. In fact, SUPA asserts that it reinitiated bargaining by asking
for an economic proposal on June 9, 2005. Bargaining was supposed to start anew
in May with a comprehensive economic proposal from CSU. It was not
forthcoming, so SUPA requested such a proposal following a negotiations session
on May 31.
3. "On July 20, 2005 the University received a comprehensive counter-proposal from
SUPA which, unfortunately, raised new issues and expanded previously discussed
issues. This created an unexpected setback in our ability to conclude bargaining as
quickly as possible." There were no new proposals only fleshed out previous
proposals.
Higher Education Employer-Employee Relations Act (HEERA) section 3571.3 states:
The expression of any views, arguments, or opinions, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute, or be evidence of, an unfair
labor practice under any provision of this chapter, unless such
expression contains a threat of reprisal, force, or promise of
benefit; provided, however, that the employer shall not express a
preference for one employee organization over another employee
organization.
Like the HEERA, the National Labor Relations Act (NLRA) imposes on private sector
employers an obligation to bargain in good faith and expressly guarantees employers the right
of free, non-coercive speech in Section 8(c) (29 U.S.C, sec. 158(c)) which is nearly identical to
HEERA section 3571.3.
Looking to the NLRA and the National Labor Relations Board's interpretation of section 8(c),
PERB has consistently held that employers may communicate with employees about labor
relations matters as long as the communication does not contain a threat of reprisal or force or
promise of benefit.
Without further facts to demonstrate that CSU was engaged in "surface bargaining," the facts
as alleged by themselves do not establish a violation. PERB has held that it is the essence of
surface bargaining that a party goes through the motions of negotiations, but in fact is weaving
otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement.
(Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an accusation

LA-CE-901-H
August 24, 2005
Page 3
of surface bargaining, PERB will resolve the question of good faith by analyzing the totality of
the accused party's conduct. The Board weighs the facts to determine whether the conduct at
issue "indicates an intent to subvert the negotiating process or is merely a legitimate position
adamantly maintained." (Oakland Unified School District (1982) PERB Decision No. 275.)
In Muroc Unified School District (1979) PERB Decision No. 80, PERB construed the
Educational Employment Relations Act to allow public school employers to communicate "in a
noncoercive fashion, with employees during negotiations." (Id. at 25, citing NLRB v. General
Electric Co. (2nd Cir. 1969) 418 F.2d 736, 762 [72 LRRM 2530, 2551], cert.den. (1970) 397
U.S. 965 [73 LRRM 2600]; and Proctor & Gamble Mfg. Co. (1966) 160 NLRB 334, 340 [32
LRRM 1617, 1620].)
PERB has held that although accurate reporting of the status of negotiations or the nature of
the proposals exchanged is permissible, an employer must refrain from a campaign of
communications to sway the views of the employees while maintaining an inflexible position
at the negotiating table. Such conduct bypasses and undermines the exclusive representative.
(Muroc Unified School District, supra, PERB Decision No. 80 at 25; see also California State
University (1989) PERB Decision No. 777-H, at 2-4 (CSU).
An employer may not communicate proposals to employees before first submitting them to the
exclusive representative, seek to bargain directly with employees, or invite them to abandon
their representative to achieve better terms directly from the employer. (See United
Technologies Corp. (1985) 274 NLRB 1069, 1074 [118 LRRM 1556].) 	Nor may the
employer engage in a campaign to disparage the exclusive representative's negotiators so as to
drive a wedge between union representation and the bargaining unit employees. 	(See Safeway
Trails. Inc. (1977) 233 NLRB 1078, 1081-1082 [96 LRRM 1614].)
The alleged misstatements by Strafaci do not appear to rise to the level of a "campaign to
disparage" SUPA. 	The comments by Strafaci when viewed by a participant in negotiations,
may seem obstructionist, but they are not so detailed as those in CSU where the Chancellor
informed the CSU workforce that despite ongoing negotiations with unions, the employer
intended to implement salary increases and referenced the effective date and the exact
percentage. 	The Board upheld the Hearing Officer who found that the comments by the
Chancellor in her "Wrap-Up" did cross the "fine line" of employer free speech by suggesting it
was the sole authority of the employer to impose salary increases and their timing.
Those facts are not alleged here. Rather, it is asserted by CSU that negotiations were delayed
three months at SUPA's request rather than it being announced as a mutual understanding.
The other alleged misstatements may be viewed as "spin" that may reflect that CSU is eager to
get an agreement or SUPA wants to negotiate further. Neither statement is pejorative or states
SUPA is responsible for there not being a new agreement.
None of the other indicia of bad faith are specifically alleged in the charge. Without that
information, a case for totality of circumstances is not established either.

LA-CE-901-H
August 24, 2005
Page 4
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, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. 	The amended charge must have the case number written on the top right hand
corner 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 PERB. 	If I do not receive an
amended charge or withdrawal from you before September 2, 2005, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS