State of California (Department of Youth Authority) (PERB 1527S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES
ASSOCIATION, LOCAL 1000, SEIU, AFL-CIO,
CLC,

Charging Party, Case No. SA-CE-1315-S

Vv. PERB Decision No. 1527-S

STATE OF CALIFORNIA (DEPARTMENT OF May 22, 2003

YOUTH AUTHORITY),

Respondent.

Appearance: California State Employees Association by Patrick Clark, Senior Labor Relations
Representative, for California State Employees Association, Local 1000, SEIU, AFL-CIO,
CLC.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB |
or Board) on appeal by the California State Employees Association, Local 1000, SEIU, AFL-
CIO, CLC (CSEA) of a Board agent’s dismissal and deferral to arbitration (attached) of its
unfair practice charge. The charge alleged that the State of California (Department of Youth
Authority) (CYA) violated Section 3519 of the Ralph C. Dills Act (Dills Act)! by failing to

bargain over a decision to send teaching staff into living units and by surface bargaining over

the impact of that decision.

' The Dills Act is codified at Government Code section 3512 et seq.

After reviewing the entire record in this matter, including the original charge, amended
charge and CSEA's appeal, the Board finds the warning and dismissal letters to be free
of
prejudicial error and adopts them as the decision
of
the Board itself consistent with the
discussion below.
DISCUSSION
The Board agent dismissed CSEA's unfair practice charge on July 26, 2002, and
deferred the charge to arbitration. CSEA argues on appeal that the dismissal was improper
because, "CSEA has already arbitrated the issue
of
teachers performing teaching duties in the
living units/cell blocks at the youth correctional facilities, and CSEA prevailed in that
arbitration." CSEA argues that the issue here is "not a prearbitral situation but a post-arbitral
issue
of
compliance." To the extent CSEA seeks to have the Board enforce its arbitration
award, this charge is duplicative
of
the one filed by CSEA in PERB Case No. SA-CE-1294-S
and must be similarly dismissed. 2
To the extent this charge alleges new issues, the Board agent correctly dismissed the
charge and deferred it to arbitration. CSEA argues that deferring this charge to arbitration
would be futile because the CYA has not complied with the previous arbitration order issued
on January 9, 2001, which involved the same issue. CSEA implies that the CY
A's
failure to
comply with the arbitration order is evidence
of
the CY A's enmity towards CSEA.
Accordingly, CSEA asserts that the standards for deferral are not met. (See State
of
California
(Department
of
Food and Agriculture) (2002) PERB Decision No. 1473-S (citing to Collyer
Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]).)
2 See State of California (Department of Youth Authority) (2003) PERB Decision
No. 1526-S.
2

The facts do no support CSEA's contentions. The January 9, 2001, arbitration order
found that the CYA violated the applicable memorandum
of
understanding (MOU) by
assigning new work duties to unit members without providing them the appropriate training
and equipment. On its face, the arbitration order does not totally prohibit CYA from making
the proposed changes. This is evidenced by the arbitrator's order that CYA meet and confer
with CSEA before making further changes. CYA apparently attempted to comply with the
arbitrator's order
by
proposing additional training and equipment for unit members.
	It
is this
proposal that appears to be the focus
of
this charge. Contrary to CSEA's assertions, there is no
evidence that the CYA is flagrantly ignoring the January 9, 2001, arbitration order.
As for whether the CY
A's
actions constitute a unilateral change in the terms and
conditions
of
empioyment, that is a matter covered by the parties' MOU. CYA has agreed to
waive any procedural defenses and there is no evidence that the dispute arises in other than a
stable collective bargaining environment. Accordingly, to the extent this charge raises new
issues, it must be dismissed and deferred to arbitration.
ORDER
The unfair practice charge in Case No. SA-CE-1315-S is hereby DISMISSED AND
DEFERRED TO ARBITRATION.
Members Whitehead and Neima joined in this Decision.
3

•
,I'.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th
Street
Sacramento, CA 958 l 4-4 l
74
Telephone: (916) 327-8386
Fax: (9 l 6) 327-6377
July 26, 2002
Paula
J.
Negley, Attorney
California State Employees Association
10600 Trademark Parkway North, Suite 405
Rancho Cucamonga, CA 91730
GRAY
DA
VIS, Governor
Re: 	California State Employees Association
v.
State
of
California (Department
of
Youth
Authority)
Unfair Practice Charge No. SA-CE-1315-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Ms. Negley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 16, 2001. An amended charge was filed on June 28,
2002. The California State Employees Association alleges that the State
of
California
(Department
of
Youth Authority) violated the Ralph
C.
Dills Act (Dills Act) 1 by refusing to
bargain over the decision to send teaching staff into living units and by surface bargaining over
the impact
of
that decision.
I indicated in the attached letter dated July 11, 2002, that this charge was subject to deferral to
arbitration. You were advised that
if
there were any factual inaccuracies or additional facts
which would correct the deficiencies explained in that letter, the charge should be amended.
You were further advised that unless the charge was amended or withdrawn prior to July 18,
2002, it would be deferred to arbitration. That letter erroneously stated that the case would
then be placed in abeyance. On July 25, I called your office and left a message on your
voicemail. The message stated that the previous letter contained an error and that the case
would actually be dismissed. The message also invited you to call
if
you have any questions.
I have not received either an amended charge or a request for withdrawal. 	Therefore, I am
dismissing the charge based on the facts and reasons contained in my July
11
letter.
As I explained in the attached letter, Government Code section 3514.5(a) and PERB
Regulation 32620(b )(5) require a Board agent to defer a charge where the dispute is subject to
final and binding arbitration pursuant to a collective bargaining agreement. (Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81; State
of
California (Department ofFood and Agriculture) (2002) PERB Decision No. 1473-S.) The charge alleges that the
employer made a unilateral change in job duties. This conduct is covered by the parties'
collective bargaining agreement, the Respondent has agreed to waive any procedural defenses,
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1315-S
July 26, 2002
Page 2
.
"·
and there is no evidence that the dispute arises in other than a stable collective bargaining
environment. Accordingly, the charge must be dismissed and deferred to arbitration.
Following the arbitration
of
this matter, the Charging Party may seek a repugnancy review by
PERB
of
the arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los
Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-8la.)2
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 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.
(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).)
- Pursuant to Government Code section 3514.S(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

Regional Attorney
h
SA-CE-1315-S
July 26, 2002
Page 3
Service
. r,
(
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
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
.¾
Attachment
cc: Barrett W. Mclnemey, Labor Relations Counsel

.
.,._
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th
( 	GRAY
DA
VIS, Governor
Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
July 11, 2002
Paula J. Negley, Attorney
California State Employees Association
10600 Trademark Parkway North, Suite 405
Rancho Cucamonga, CA 91730
Re: 	California State Employees Association
v.
State
of
California (Depa1iment
of
Youth
Authority)
Unfair Practice Charge No. SA-CE-1315-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Ms. Negley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 16, 2001. An amended charge was filed on June 28,
2002. 	The California State Employees Association alleges that the State
of
California
(Department
of
Youth Authority) violated the Ralph
C.
Dills Act (Dills Act)1 by refusing to
bargain over the decision to send teaching staff into living units and by surface bargaining over
the impact
of
that decision.
Investigation reveals the following. 	Heman G. Stark is a maximum-security facility
of
the
DYA in Chino. In August 2000, management determined that teachers and teaching assistants
would need to perform certain educational services in the celled "living units" for inmates
prohibited from attending classes in the regular classrooms at the facility's high school. When
CSEA learned
of
this decision, it requested to negotiate and filed a health and safety grievance.
The parties met on September 11, 2000. The employer took the position that, under the
collective bargaining agreement, it was permitted to make the decision without negotiating.
On September 25, 2000, CSEA filed for injunctive relief in San Bernardino Superior Court.
The Superior Court judge assisted the parties in accelerating arbitration using a local arbitrator.
An amended arbitration award issued on January 9, 2001. That award found a violation ofseveral sections
of
the collective bargaining agreement. The arbitrator ordered that the
teachers be removed from the living units and that the DY A meet with CSEA before making
any changes in teacher working conditions. In March 2001, the court granted CSEA's petition
to confirm the award.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1315-S
July 11, 2002
Page 2
(
.
,('.
(
On February 20 and 21, 2001 the parties met, there was no agreement. According to CSEA,
the DY A negotiator, Jan Sales declared that the parties were at impasse at the end
of
the
meetings. According to DYA, CSEA negotiator Bill Kelly agreed.
On March 14, CSEA's Petition to Confirm the Award
of
the Arbitrator was granted and
DY
A's
Petition to Correct or Vacate was denied in San Bernardino Superior Court. CSEA
contends that, at this hearing, counsel for the DYA stated that the department intended to re-
implement the same changes in working conditions, that CSEA could then file another safety
grievance, and the dispute could be heard by another arbitrator.
The parties met again on April
9,
2001. Dale Wells, a subordinate
of
Sales represented DYA.
Wells had invited state mediator Jeff Schrader to attend. Wells asked CSEA negotiator Bill
Kelly to agree to mediation and to agree that the parties were at impasse. Kelly insisted that
the parties were not at impasse and stated that the proper procedure would be for DYA to file
an impasse request at-PERB.
On April 18, Wells filed a request for impasse determination at PERB. On May 2, PERB
issued a determination that an impasse existed and notified the parties that a mediator would be
contacting them shortly. 	On that same date, CSEA filed unfair practice charge SA-CE-1294-S
against the DY A. 2
On May 3, DY A negotiator Jan Sale sent a letter to CSEA negotiator Bill Kelly stating that the
employer was available to meet with the state mediator "on any day from the date
of
this letter
until June
1,
2001." On May 16, Kelly replied by letter that he would discuss his availability
with the mediator.
On June 25, mediator Jan Schrader sent a letter proposing five dates in July and asking the
parties to pick one or more
of
them. Kelly responded on July 3, that there are "two problems
with scheduling mediation" in this matter. He was unavailable because
of
negotiations over
new contracts and "Until we get a ruling from PERB on the ULP it is inappropriate for the
parties to proceed with mediation." On July 27, Schrader sent a letter to both sides stating that
"the parties ... have been unable to come up with a mutually agreeable date to mediate the
above-referenced dispute."
On November 16, CSEA filed this unfair practice charge (SA-CE-1315-S) and a request for
injunctive relief alleging that DYA had announced that teaching staff would begin performing
work duties in the cell blocks/living units at Stark. That action did not take place at that time
and CSEA withdrew its request for injunctive relief.
That charge was dismissed and deferred to arbitration under Lake Elsinore by this
PERB Regional Attorney~ The union appealed that determination to the Board. In State ofCalifornia (Department of Youth Authority) (June 6, 2002) PERB Decision No. 1483-S, the
Board remanded the case for processing consistent with its decision in State of California
(Department of Food and Agriculture (2002) PERB Decision No. 1473-S.

SA-CE-1315-S
July 11, 2002
Page 3
. "·
According to the employer, teaching staff has been working in the living units and conducting
educational meetings since January 2002, with no incidents.3 The employer also states that
such meetings had been suspended in January 2001 to allow the adoption
of
modified policies
that are consistent with the arbitrator's decision.
The unit 3 contract, effective through June 30, 2003, states:
22.1 Entire Agreement
This Contract sets forth the full and entire understanding
of
the
parties regarding the matters contained herein, and any other prior
or existing understanding or agreement by the parties, whether
formal or informal, regarding any such matters is hereby
superseded. Except as provided in this Contract, it is agreed and
understood that each party to this Contract voluntarily waives its
right to negotiate with respect to any matter raised in negotiations
or covered in this Contract.
With respect to other matters within the scope
of
negotiations,
negotiations may be required as provided in subsection B. below.
B. The parties agree that the provisions
of
this subsection
shall apply only to matters that are not covered in this
Contract.
The parties recognize that it may be necessary for the State to
make changes in areas within the scope
of
negotiations. Where
the State finds it necessary to make such changes, the State shall
notify the Union
of
the proposed change thirty (30) days prior to
its proposed implementation.
The parties shall undertake negotiations regarding the impact
of
such changes on the employees when all three
of
the following
exists:
1.
	Where such changes would affect the working conditions
of
a significant number
of
employees.
2. 	Where the subject matter
of
change is within the scope
ofrepresentation pursuant to Ralph C. Dills Act.
3. 	Where the Union requests to negotiate with the State.
3 The teaching staff includes teachers in state bargaining unit 3 and instructional aides
in state bargaining unit 20.

SA-CE-1315-S
July 11, 2002
Page 4
An agreement resulting from such negotiations shall be executed
in writing and shall become an addendum to this Contract.
If
the
parties are in disagreement as to whether a proposed change is
subject to this subsection, such disagreement may be submitted to
the arbitration procedure for resolution.
The arbitrator's decision shall be binding. In the event
negotiations on the proposed change are undertaken, any impasse
which arises
may
be submitted to mediation pursuant to Section
3518
of
the Ralph C. Dills Act.
A similar entire agreement article is found in the collective bargaining agreement for state
bargaining unit20.
Section 3514.S(a)
of
the Dills Act states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions
of
the [collective bargaining] agreement between the
parties until the grievance machinery
of
the agreement,
if
it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, the Board
explained that:
While there is no statutory deferral requirement imposed on the
National Labor Relations Board (hereafter NLRB), that agency
has voluntarily adopted such a policy both with regard to post-
arbitral and pre-arbitral award situations.2 BERA
section 3541.S(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.
It is appropriate, therefore, to look for guidance to the private
sector. 	[Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608.]
Although Dry Creek was decided under the Educational Employment Relations Act4 the NLRB
deferral standard has also been applied to the Dills Act. (State
of
California (Department
ofFood and Agriculture) (2002) PERB Decision No. 1473-S.)
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent cases, the
National Labor Relations Board articulated standards under which deferral to the contractual
4 The Educational Employment Relations Act is codified at Government Code section
3540 et seq.

Sincerely,
/
BeernanardMcMnigle
Regional Attorney
Attachment
v
SA-CE-1315-S
July 11, 2002
Page 5
grievance procedure is appropriate in prearbitral situations. These requirements are: (1) the
dispute must arise within a stable collective bargaining relationship where there is no enmity
by the respondent toward the charging party; (2) the respondent must be ready and willing to
proceed to arbitration and must waive contract-based procedural defenses; and (3) the contract
and its meaning must lie at the center of the dispute.
These standards are met with respect to this case. First, no evidence has been produced to
indicate that the parties are not operating within a stable collective bargaining relationship.
Second, by the attached letter from its representative, Barrett Mclnemey, dated July 11, 2002,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issues raised by this charge, that the employer refused to
bargain over a decision to make a change in teaching staff duties and engaged in surface
bargaining over the impact, directly involves an interpretation of the entire agreement articles
of the collective bargaining agreements for bargaining units 3 and 20. The entire agreement
articles arguably grant the employer the ability to make changes on matters within the scope of
bargaining subject to impact bargaining if certain conditions are met. This article covers the
issue of whether the employer was free to make a change in job duties and the issue of whether
the employer met its obligation to bargain over the impact of that decision. The articles also
state that any disputes regarding the applicability of the article to the proposed change may be
submitted to binding arbitration.
Accordingly, this charge must be deferred to arbitration and will be placed in abeyance until
such time as the arbitration process has concluded. Following the arbitration of this matter, the
charge will be dismissed unless the Charging Party seeks a repugnancy review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School District,
supra.)
If there are any factual inaccuracies in this letter or any additional facts that would require a
different conclusion than the one 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 be served on the
Respondent and the original proof of service filed with PERB. If I do not receive an amended
charge or withdrawal from you before July 18, 2002, I shall place your charge in abeyance. If
you have any questions, please call me at the above telephone number.