State of California (Department of Developmental Services) (PERB 1614S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY
EMPLOYEES,

Charging Party, Case No. SA-CE-1337-S

v. PERB Decision No. 1614-S

STATE OF CALIFORNIA (DEPARTMENT OF April 5, 2004

DEVELOPMENTAL SERVICES),

Respondent.

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

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the California Union of Safety Employees (CAUSE) of a Board agent’s dismissal
(attached) of its unfair practice charge. The charge alleged that the State of California
(Department of Developmental Services) (DDS) transferred work previously performed by
CAUSE to another bargaining unit in violation of the Ralph C. Dills Act (Dills Act)’.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters and CAUSE’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, subject to the discussion below.

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

DISCUSSION
First, CAUSE repeats its assertion that providing security at State Personnel Board
(SPB) hearings held on DDS facilities is the exclusive domain of its unit. However, this
assertion is contradicted by the charge itself and the applicable class specifications.
Specifically, the classification of peace officers, developmental centers is charged with
"maintaining law and order on developmental center grounds." However, this duty is shared
with the classification of officer, California Highway Patrol (CHP), which includes ". . . law
enforcement and police protection plans for State officers, employees, and properties; and
develops and administers training in crime prevention, employee protection . . ." Thus, at a
minimum, the Board agent correctly found that providing security at SPB hearings is an
overlapping duty between CAUSE and the CHP.
Next, CAUSE asserts that its members are better suited to provide security for SPB
hearings because they are unarmed. CAUSE implies that having armed officers on DDS
facilities poses special concerns. However, CAUSE's appeal admits that the concern over
unarmed officers relates to their contact with residents of the developmental centers. Here,
there is no allegation that residents would be included in the SPB hearing or would otherwise
be in close proximity. Rather, the charge alleges that the SPB hearing involved a DDS
employee who had made threats of violence.
Given the overlapping duties, the Board finds that DDS did not violate the Dills Act by
choosing to use CHP officers instead of CAUSE members. Such a decision is not negotiable
"The appeal also includes an assertion that this matter is not deferrable to arbitration.
However, neither DDS nor the Board agent raised this issue below. Accordingly, the Board
makes no finding as to deferral.
2

because CAUSE, though given a second opportunity, failed to allege any negotiable impact on
its members. Accordingly, the charge must be dismissed.
ORDER
The unfair practice charge in Case No. SA-CE-1337-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
October 22, 2002
Linda M. Kelly, Legal Counsel
California Union of Safety Employees
2029 H Street
Sacramento, CA 95814
Re: 	California Union of Safety Employees v. State of California (Department of
Developmental Services)
Unfair Practice Charge No. SA-CE-1337-S
DISMISSAL LETTER
Dear Ms. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 10, 2002. The California Union of Safety Employees alleges
that the State of California (Department of Developmental Services) violated the Ralph C.
Dills Act (Dills Act)' by unilaterally transferring work out of the bargaining unit.
I indicated to you in the attached letter dated October 8, 2002, 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 October 16, 2002, the charge would be 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 October 8, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations," 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.
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.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1337-S
October 22, 2002
Page 2
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).)
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.)

SA-CE-1337-S
October 22, 2002
Page 3
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
Robin W. Wesley
Regional Attorney
Attachment
cc: Robert J. Allen

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
October 8, 2002
Linda M. Kelly, Legal Counsel
California Union of Safety Employees
2029 H Street
Sacramento, CA 95814
Re: 	California Union of Safety Employees v. State of California (Department of
Developmental Services
Unfair Practice Charge No. SA-CE-1337-S
WARNING LETTER
Dear Ms. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 10, 2002. The California Union of Safety Employees alleges
that the State of California (Department of Developmental Services) violated the Ralph C.
Dills Act (Dills Act)' by unilaterally transferring work out of the bargaining unit. We
discussed this charge on September 18 and October 4, 2002.
CAUSE is the exclusive representative of bargaining unit employees in the Peace Officer,
Developmental Center classification. Employees in this classification serve as hospital police
officers at facilities such as the Sonoma Developmental Center (SDC) which is administered
by the Department of Developmental Services. Employees in this classification are
responsible for maintaining law and order on developmental center grounds. Hospital police
officers are not permitted to carry a firearm in the course of their duties. The California
Highway Patrol is also charged with providing security at State facilities.
At some point in early 2002, the SDC took adverse action against an employee. There were
some safety concerns based on the employee's "contentious behavior" and threats of violence.
As a result, on an unspecified date, a CHP officer was dispatched to be present at the
employee's Skelly hearing.
Thereafter, SDC officials made arrangements for a CHP officer to be present at the employee's
April 4, 2002 State Personnel Board hearing scheduled to be held at SDC.
Based on the facts stated above, the charge fails to state a prima facie case.
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-1337-S
October 8, 2002
Page 2
In determining whether a party has violated the Dills Act section 3519(c), PERB utilizes either
the "per se" or "totality of the conduct" test, depending on the specific conduct involved and
the effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Unified High School District (1982) PERB Decision No. 196.)
PERB has held that the transfer of work from bargaining unit employees to those in a different
or no bargaining unit is a subject within the scope of representation. (Rialto Unified School
District (1982) PERB Decision No. 209.) However, not all transfers of bargaining unit work
are negotiable. In Eureka City Schools (1985) PERB Decision No. 481, the Board held that a
change in the distribution of duties between unit and non-unit employees, where there is an
established practice of overlapping duties, does not always give rise to a duty to bargain. In
Eureka, the Board stated that:
In our view, in order to prevail on a unilateral transfer of work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out of the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity of work which nonunit employees perform and
decreasing the quantity of work which unit employees perform.
[Emphasis in original; footnote omitted.]
A duty to bargain may still be found where there are negotiable effects such as a reduction of
hours in the bargaining unit positions (Id.) or if unit employees cease to perform the
overlapping work. (Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
The charge alleges that the State transferred work exclusively performed by hospital police
officers to CHP officers when it arranged for CHP officers to be present at a Skelly hearing
and a SPB hearing at the SDC facility. CAUSE contends that hospital police officers provide
security at developmental center facilities to the exclusion of all other law enforcement with
the exception of mutual aid situations. However, CHP officers are also charged with
maintaining law and order on State property and responding as necessary. The parties' MOU
does not contain language which provides that hospital police officers exclusively provide
security at developmental center facilities. Thus, the charge demonstrates overlapping duties
between hospital police officers and CHP officers in maintaining law and order on State
property. As discussed above, under Eureka a change in the distribution of overlapping duties

SA-CE-1337-S
October 8, 2002
Page 3
performed by different bargaining units does not demonstrate an unlawful transfer of
bargaining unit work. Thus, the charge must be dismissed.
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 o
perjury by the charging party. The amended charge must have the case number written on th
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 October 16, 2002, I shall
dismiss your charge. If you have any questions, please call me at (916) 327-8385.
f
e
Sincerely,
Robin W. Wesley
Regional Attorney
Attachment