State of California (Department of Mental Health) (PERB 1567S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY
EMPLOYEES,

Charging Party, Case No. LA-CE-563-S

Vv. PERB Decision No. 1567-S

STATE OF CALIFORNIA (DEPARTMENT OF December 16, 2003

MENTAL HEALTH),

Respondent.

Appearance: Linda M. Kelly, Legal Counsel, for California Union of Safety Employees.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Union of Safety Employees (CAUSE) of a Board
agent’s dismissal of its unfair practice charge and deferral of the charge to arbitration
(attached). The charge alleged that the State of California (Department of Mental Health)
(State) violated the Ralph C. Dills Act (Dills Act)! by eliminating the Hospital Police
Department’s job to transport and escort forensic Penal Code patients on the grounds of
Metropolitan State Hospital. CAUSE alleged that this conduct constituted a violation of Dills
Act section 3519(b) and (c).

The Board agent initially dismissed and deferred this charge to arbitration pursuant to

the Board’s decision in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake

‘The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Elsinore). Since the Board agent's original dismissal, the Board issued State
of
California
(Department
of
Food and Agriculture) (2002) PERB Decision No. 1473-S (Food and
Agriculture), and upon appeal, remanded this charge for further processing pursuant to that
decision. (State
of
California (Department
of
Mental Health) (2002) PERB Decision
No. 1477-S.) By letter dated July 26, 2002, the State agreed to proceed to arbitration and
waived its contract-based procedural defenses. As a result, the Board agent again dismissed
and deferred the charge to arbitration.
Upon review
of
the entire record, including the charge, the State's response to the
charge, the dismissal letter, and CAUSE's appeal, the Board adopts the Board agent's
dismissal as the decision
of
the Board itself. The Board will address the issues raised
in
CAUSE's appeal below.
BACKGROUND
The charge alleges that by memo on October 6, 2000, Chief Walt Thurner (Thurner)
notified the Metropolitan State Hospital (Hospital) Police Department personnel (police) that
the police would no longer transport or escort forensic (Penal Code) patients on the grounds
of
the Hospital effective October 10, 2000. It has been the police's responsibility to transport and
escort forensic patients on the Hospital ground since the Hospital admitted such patients. The
State's purpose for this action was to cut down on overtime worked by the police. On
October 10, CAUSE representatives met with Thurner protesting the Hospital's action.
Thurner said there was nothing he could do since it was the Hospital administration's decision.
As a result, CAUSE threatened to file a formal grievance. Thurner refused to meet and confer
and notified CAUSE that a new administrative directive was being written. 2 CAUSE alleges
2CAUSE states that as of March 15, 2001, the State had not revised the administrative
directive. However, CAUSE did not describe what the directive now says or what CAUSE
anticipates that it would say after it is modified.
2

that there are safety and security concerns with allowing other Hospital staff to transport and
escort patients and CAUSE had advised Thurner of this fact.
CAUSE'S APPEAL
Except for factual differences, CAUSE's appeal is identical in every respect to its
appeal in California Union of Safety Employees v. State of California (Department of Parks
and Recreation), Case No. LA-CE-581-S. In this case, CAUSE also explains how the State's
conduct impacts public safety. According to CAUSE, the forensic patients were placed at the
Hospital due to risk to themselves and the public. The charge provides examples of the risk,
e.g., a forensic patient left alone outside smoking a cigarette coupled with apparent lack of
concern by non-peace officer Hospital staff. As a result, CAUSE argues, the Hospital police,
as peace officers, should remain responsible for transporting these patients on and off the
grounds.
DISCUSSION
Section 3514.S(a) of the Dills Act states, in pertinent part, that PERB shall not:
[I]ssue 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-8la (Dry
Creek), 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. [Fn. omitted.] EERA
section 3541.5(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. [3l
3Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.
3

Although Dry Creek was decided under the Educational Employment Relations Act
(EERA)4 the National Labor Relations Board (NLRB) deferral standard has also been applied
to the Dills Act. (Food and Agriculture.)
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer) and
subsequent cases, the NLRB articulated standards under which deferral to the contractual
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.
Article 20.1
of
the parties' memorandum
of
understanding (MOU) provides that the
parties shall negotiate the impact
of
changes within the scope
of
representation, but not
covered by the MOU,
if
the changes affect the working conditions
of
the majority
of
Unit 7
members and CAUSE requests negotiations. Further, any disagreement as to whether a change
is subject to Article 20.1 may be submitted to binding arbitration. 5
Board precedent has long held that the elimination
of
bargaining unit work as alleged
by CAUSE is clearly within the scope ofrepresentation. (Eureka City School District (1985)
PERB Decision No. 481; State
of
California (Department
of
Personnel Administration) (1987)
PERB Decision No. 648-S.) A unilateral change involving that issue violates the duty to
4EERA is codified at Government Code section 3540 et seq.
5Article 6 of the parties' MOU provides for a grievance procedure ending in binding
arbitration.
4

bargain under Dills Act section 3519(c). (See e.g., State
of
California (Department
of
Corrections) (2000) PERB Decision No. 1391-S.) As the elimination
of
bargaining unit work
is within the scope ofrepresentation, it is also covered by the above provisions
of
Article 20.1
of
the MOU and so, under the MOU' s plain terms, its impact must be negotiated. Any dispute
regarding MOU coverage
of
this issue may be submitted to binding arbitration. Accordingly,
as the State has waived its procedural defenses, under Collyer, the Board defers to arbitration
and dismisses this issue.
CAUSE, however, argues that the parties did not intend by that provision that CAUSE
waive its right to negotiate removal
of
bargaining unit work from the unit and that such waiver
must be "clear and unmistakable." We agree that a waiver
of
the right to bargain a negotiable
issue must be "clear and unmistakable." (Amador Valley Joint Unified School District (1978)
PERB Decision 74.) In Los Angeles Community College District (1982) PERB Decision
No. 252, p. 13, citing NLRB precedent, the Board has previously held that:
[U]nion conduct in negotiations will make out a waiver only
if
a
subject was 'fully discussed' or 'consciously explored' and the
union 'consciously yielded' its interest in the matter. 	[Citation.]
Moreover, where a provision would normally be implied in an
agreement by operation
of
the Act itself, a waiver should be
express, and a mere inference, no matter how strong, should be
insufficient.
In Los Angeles Community College District (1982) PERB Decision No. 252, at p. 10,
the Board also held that:
Contract terms will not justify a unilateral management act on a
mandatory subject
of
bargaining unless the contract expressly or
by necessary implication confers such right. New York Mirror
(1965) 151 NLRB 834, [58 LR..~M 1465, 1467].
(Emphasis added.)
Article 20.1 of the MOU clearly requires negotiation of the impact of changes in
negotiable matters that are not covered by the agreement. By necessary implication, it appears
5

that Article 20.1 covers the decision to make the change itself, which would include
adjudication of CAUSE's waiver of the right to bargain this issue. Under Article 20.1, any
dispute as to coverage may be submitted to binding arbitration. Accordingly, the Board also
defers and dismisses this issue.
However, CAUSE has also alleged that the State's conduct results in multiple Dills Act
violations, some of them not covered by the MOU. CAUSE argues that these violations should
not be deferred because the MOU offers no remedy for some of these violations.
For instance, CAUSE alleges that the State's conduct denied CAUSE its right to
represent unit employees in violation of Dill Act section 3519(b).6 Although CAUSE claims
the Section 3519(b) violation is an independent violation of the Dills Act, it is in fact a
derivative claim of the alleged violation of Section 3519(c), arising out of the same conduct,
transfer of bargaining unit work. (State of California (Department of Youth Authority) (2000)
PERB Decision No. 1374-S; San Francisco Community College District (1980) PERB
Decision No. 146; San Francisco Community College District (1979) PERB Decision No. 105,
pp. 18-20.)
In contrast, an independent violation arises out of other specific conduct. The NLRB
has long recognized the distinction between derivative and independent violations. (See
Morris, Developing Labor Law, Third Ed., ABA Sec. of Labor and Employment Law, BNA
Books, Ch. 6, Sec. I., C.) Section 8(a)(l ) of the National Labor Relations Act (NLRA)7 may
6In its charge, CAUSE also alleged that the State's conduct interfered with unit
employees' rights to be represented by CAUSE, an alleged violation of Section 3512, though
CAUSE failed to reiterate this allegation on appeal.
7NLRA Section 8 provides, in pertinent part that:
(a) It shall be an unfair labor practice for an employer -
6

either be an independent violation or a derivative violation of one of the other four
subdivisions of section 8. Historically, the NLRB has not deferred charges based upon
independent violations that are closely related. 	(Hoffman Air and Filtration Systems, Division
of Clarkson Industries, Inc. (1993) 312 NLRB 349 [144 LRRM 1215] (Hoffman).) In
Hoffman, the NLRB refused to defer a section 8(a)(l) violation involving the employer's
expressed policy of holding the union job steward to a higher standard of conduct than other
employees because the collective bargaining agreement (CBA) limited the contractual
remedies for such a violation, specifically precluding the arbitrator from issuing a cease and
desist order. At the same time, the NLRB chose not to defer a section 8(a)(3) violation, which
involved issuing the job steward a warning letter for violating the policy, which was covered
by the CBA, and which could have been adequately remedied through the grievance/arbitration
procedure, reasoning that the section 8(a)(3) violation was closely related to the section 8(a)(l)
violation. Likewise, in American Commercial Lines (1988) 291 NLRB 1066, 1069 [133
LRRM 1561], the NLRB stated that "when, as here, an allegation for which deferral is sought
is inextricably related to other complaint allegations that are either inappropriate for deferral or
for which deferral is not sought, a party's request for deferral must be denied. "8
However, NLRB precedent has required deferral of section 8(a)(l) violations that are
derivative violations of the other section 8 subsections. (See National Radio Company, Inc.
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7;
(3) to discriminate in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization ....
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a).
8Accord, Carpenters (MFG. Woodworkers Assn.) (1998) 326 NLRB 321,322 [159
LRRM 1314].
7

(1972) 198 NLRB 527 [80 LRRM 1718] (National Radio)).9 In National Radio, the employer
unilaterally instituted a policy requiring union representatives to report to their supervisors
when leaving their work areas to conduct union business. The employer also disciplined and
later discharged an employee/union activist and official, who had repeatedly failed to comply
with this directive. The union filed charges alleging violations
of
sections 8(a)(5) (unilateral
change) regarding the new policy, and 8(a)(3) (discrimination) and
8(a)(l)
(interference) for
the discipline and dismissal
of
the union official. Regarding the sections 8(a)(3) and
8(a)(l)
allegations, the NLRB deferred the charge. As in the present case, those two violations were
based upon the same conduct.
The Board's decision in State
of
California (Department
of
Corrections) (1995) PERB
Decision No. 1100-S (Corrections) is consistent with NLRB precedent and comports
with
the
requirement
of
Dills Act section 3514.5(a)(2) that the Board may not issue a complaint against
conduct also prohibited
by
the parties' agreement. In Corrections, paraphrasing Section
3514.5(a)(2), the Board held that
if
the employer's conduct was arguably prohibited
by
the
MOU and subject to a grievance procedure ending in binding arbitration, the entire
matter
must
be deferred. Also in Corrections, the Board determined that, where the conduct is arguably
prohibited by the MOU, the Board must defer to arbitration all multiple legal theories arising
from that conduct. (Corrections, pp. 13-15, citing Dills Act sec. 3514.5(a)(2);
Lake Elsinore.)10
The Board in Corrections reasoned that such a rule ensures one forum for
resolution
of
a dispute, eliminates overlapping and duplicative proceedings, promotes more
timely resolution
of
disputes and contributes to employer-employee stability. The Board
9See also Collyer.
10The Board circumscribed its ruling with the proviso that the jurisdiction to resolve the
dispute must bring with it the authority to order an appropriate remedy for the unlawful
conduct. (Corrections, p. 15.)
8

confirmed this policy for handling multiple legal violations in deferral cases in a matter
involving CAUSE and the State over issues similar to those presented in this matter. (State of
California (Department of Personnel Administration) (1996) PERB Decision No. 1145-S; see
also, Chula Vista Elementary School District (1998) PERB Decision No. 1232a.) The alleged
violation of Section 3519(b) derives from the alleged violation of Section 3519(c), both arising
out of the same alleged conduct, the elimination of bargaining unit work. CAUSE has failed to
provide support for its contention that an arbitrator's remedy could not resolve a violation of
Section 3519(b) if a violation of the MOU is found. 	The Board, therefore, defers and
dismisses that allegation.
For the first time on appeal, CAUSE raises the allegation of bad faith bargaining and
fails to identify any facts that support such a violation. Under PERB Regulation 32635(b ), 11
unless good cause is shown, a charging party may not present new charge allegations or
supporting evidence in the appeal. (State of California (State Teachers Retirement System)
(1997) PERB Decision No. 1202-S.) Here, CAUSE has not provided any information showing
good cause for presenting this new allegation and therefore this allegation is dismissed.
ORDER
The unfair practice charge in Case No. LA-CE-563-S is hereby DISMISSED AND
DEFERRED TO ARBITRATION.
Members Baker and Neima joined in this Decision.
11 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
9

ST ATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I I 8th Street
Sacramento, CA 95814-4\74
Telephone: (916) 327-8381
Fax: (916) 327-6377
August 20, 2002
Linda Kelly, Esquire
California Union
of
Safety Employees
2029 H Street
Sacramento, CA 95814
James R. Brantley, Supervising LR Representative
California Union
of
Safety Employees
2900 Bristol Street #H-201
Costa Mesa, CA 92626
Re: 	California Union of Safety Employees
v.
State of California (Department of Mental
Health)
Unfair Practice Charge No. LA-CE-563-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Ms. Kelly and Mr. Brantley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 23, 2001. The California Union of Safety Employees
alleges that the State of California (Department of Mental Health) violated the Ralph C. Dills
Act (Dills Act)1 by unilaterally transferring work out of the bargaining unit represented by
CAUSE.
I indicated in the attached letter dated August
1,
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 August
19,
2002, it would be deferred to arbitration and dismissed.
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 August 1, 2002 letter.
As I explained in the attached letter, Government Code section 3514.S(a) and PERB
Regulation 32620(b)(5) require a Board agent to dismiss 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 of
Food and Agriculture) (2002) PERB Decision No. 1473-S.) The charge alleges that State
violated the Dills Act by unilaterally transferring work out of the bargaining unit represented
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.

LA-CE-563-S
August 20, 2002
Page 2
(
by CAUSE. This conduct is covered by the parties' collective bargaining agreement, the
Respondent 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, 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
2 Pursuant to Government Code section 3514.5(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.

LA-CE-563-S
August 20, 2002
Page 3
(
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
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/{~~~
Robert Thompson
General Counsel
Attachment
cc: Barrett Mcierney

_s_T_A_T_E_O_F_C_A_L_IF_O_R_N_IA	
GRAY
DA
VIS, Governor	
__
--i(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-838 l
Fax: (916) 327-6377
August
1,
2002
Linda Kelly, Esquire
California Union
of
Safety Employees
2029 H Street
Sacramento, CA 95814
James R. Brantley, Supervising LR Representative
California Union
of
Safety Employees
2900 Bristol Street #H-201
Costa Mesa,
CA
92626
Re: 	California Union
of
Safety Employees v. State
of
California (Department
of
MentalHealth)
Unfair Practice Charge No. LA-CE-563-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Ms. Kelly and Mr. Brantley:
The above-referenced unfair practice charge was filed with the Public Employment Reiations
Board (PERB or Board) on March 23, 2001. The California Union
of
Safety Employees
alleges that the State
of
California (Department
of
Mental Health) violated the Ralph C. Dills
Act (Dills Act) 1 by unilaterally transferring work out
of
the bargaining unit represented byCAUSE.
CAUSE is the exclusive bargaining representative for State Bargaining Unit 7, Protective
Services and Public Safety. The State and CAUSE are parties to a collective bargaining
agreement which expired on June 30, 2001. Article six
of
the agreement contains the parties'
grievance procedure, which culminates in binding arbitration. Additionally, article 20.1
of
the
agreement states in relevant part:
B. The parties agree that the provisions
of
this subsection shall
apply only to matters which are not covered in this contract.
The parties recognize that during the term
of
this Contract 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 will notify CAUSE
of
the proposed
change in thirty (30) days prior to its proposed implementation.
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.

LA-CE-563-S
August
1,
2002
Page 2
( 	(
The parties shall undertake negotiations regarding the impact 'of
such changes on the employees in unit
7,
when all three (3)
of
the
following exists:
1.
	Where such changes would affect the working conditions
of
the majority
of
the unit 7 employees by classification in a
department.
2. Where the subject matter
of
the changes is within the scope
of
representation pursuant to the Ralph
C.
Dills Act.
3. Where CAUSE requests to negotiate with state.
On Oct. 6, 2000, Metropolitan State Hospital Police Department personnel were informed by
Chief Walt Turner that they would no longer transport or escort Penal Code patients
on
the
grounds
of
the Hospital effective October 10, 2000. Prior to this time, the Police Department
personnel exclusively performed this duty. This duty has now been assigned to general
hospital staff in other bargaining units.
On Oct. 6, 2000, Officer Finch informally discussed the issue with Chief Turner.
	Chief
Turner
stated that the decision was made in order to cut down on overtime. On October 10, 2000,
Officer Finch and Job Steward Dan Gurule met with Chief Turner regarding the transfer
of
bargaining unit work. Mr. Gurule requested to meet and confer over this change, but
ChiefTurner stated it was an administrative decision and there was nothing he could do.
Based on these facts and Dills Act section 3514.5, this charge must be deferred to arbitration
under the MOU and dismissed in accordance with PERB Regulation 32620(b)(5).
Section 3514.5(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 3541.5(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.

LA-CE-563-S
August
1,
2002
Page 3
( 	(
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 Act2
the
NLRB
deferral standard has also been applied to the Dills Act. (State
of
California (Department
of
Food 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
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 W. Mcinemey, dated
July
26,
2002, the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the State unilaterally
transferred work outside bargaining unit 7 directly involves an interpretation
of
Article 20.1
of
the MOU.
Accordingly, this charge must be deferred to arbitration and will be dismissed. 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,
supra.)3
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 ofperjury by the charging party. The amended charge must have the case number written on the
top right hand comer
of
the charge form. 	The amended charge must be served on the
2 The Educational Employment Relations Act is codified at Government Code section
3540 et seq.
3 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.

LA-CE-563-S
August
1,
2002
Page 4
(
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 August 19, 2002, I shall dismiss
your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
I?~~
Robert Thompson
General Counsel
Attachment

f I
VIU-Tliil\'1
1.V~	
tlljf364WOI	
~	
T-961
	P.OOZ/002
	F-844
Law 	O~f1cm	
£	
~sl	
~51	
6176
A
-
SITAlri OF
·---=--
CAL1FOANI
~··	
"--r--·
DEPARTMENT OF PERSONNEL ADMINISTRATION
LEGAL DIVISION
,~Is·s"
STREET, NORTH BUII.OtNG,
SUIT!
'100
	SACRAMENrO,
CA
95814-72~
(916) 324•0512
	FAX
(91e) 323-4723
July 26, 2002
Public Employment Relations Board
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite
1435
Los Angeles, CA 90010-2334
Attn: Robert Thompson, Regional Attorney
Re: 	C.A.U.S.E.
v.
State
of
California (Department
of
Mental Health)
PERB
File
No. UPC LA-CE-563-S
Dear Mr. Thompson:
GR-'Y DAVIS,
GovltlTI
---·	
....
This letter will confirm out telephone conversation concerning
file.
	the above-referenced
This office represents the California Department of Mental Health (''DMH")
respect to the with
above-referenced matter.
On
behalf of the DMH, we	the
	agree
	matter
	to
	through resol
contractual arbitration and we hereby waive a![ contract
	procedural 	based
	defenses with respect to the substantive unfair practice ct1arge.
ve
Should you have any further questions or comments concerning the
not
	above,
	hesitate to
	please
call
	do
	or write. Thank you for your courtesy and cooperation
916-327-6377 	JUL.29'2002 	10:35 	RECEIVED FROM: 	+2137364901 	#5764-002
Sincerely
Barrett W. Mcinerney
Labor Relations Counsel