State of California (Department of Personnel Administration) (PERB 2081S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
Case No. SA-CE-1649-S
PERB Decision No. 	2081-S
November 24, 2009
Appearances: 	Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; Anthony V. Pane, Legal Counsel, for State of California (Department of
Personnel Administration).
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: 	This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA) of a Board agent's dismissal (attached) of an unfair practice charge. The charge
alleged that the State of California (Department of Personnel Administration) (State or DP A)
violated the Ralph C. Dills Act (Dills Act)1 by engaging in conditional bargaining. CCPOA
alleged that this conduct constituted a violation of the Dills Act section 3519(c) and (e).
Specifically, CCPOA alleged that, in its August 22, 2007 Last, Best, Final Offer (LBFO), the
State insisted to impasse on the following non-mandatory subjects of bargaining that would
The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

require a waiver
of
employees' statutory rights: (1) LBFO section 10.02D (use
of
sick leave)2;
(2) LBFO section l l. l 1F2 (Fair Labor Standards Act (FLSA) exemption)3; and (3) LBFO
section 27.01 (entire agreement)4 5
.
The Board has reviewed the entire record including, but not limited to, the unfair
practice charge, the State's position, the amended unfair practice charge, the warning
and
dismissal letters, CCPOA's appeal, and the State's response. Based on this review, the
Board
adopts the warning and dismissal letters as its own subject to the following discussion.
BACKGROUND
The Board adopts the Board agent's summary
of
the alleged facts as set forth in
the
warning and dismissal letters.
CCPOA'S APPEAL
CCPOA argues that, while the Board agent was essentially correct in the formulation
of
the test to be applied, he incorrectly applied the test to the facts. 	CCPOA argues that the Board
agent incorrectly relied on language contained in San Mateo Community College District
(1993) PERB Decision No. 1030 (San Mateo) in concluding that CCPOA failed to make
known its objections to DPA's proposals that CCPOA contended contained non,.mandatory
2 CCPOA argues that LBFO section 10.02D waived employees' statutory rights under
California Labor Code sections 233 and 234.
3 CCPOA argues that LBFO section 11. l 1F2 violated FLSA.
4 CCPOA argues that LBFO section 27.01 waived the statutory right to meet and confer
to Dills Act section 3 519(c
).	
pursuant
5 The amended unfair practice charge listed four sections of the LBFO that the State
improperly insisted to impasse. CCPOA did not appeal the dismissal of the charge with
respect to LBFO section 12.02 and, as such, we do not address LBFO section 12.02 in this
decision.
2

subjects
of
bargaining requiring a waiver
of
a statutory right. 	Instead, CCPOA asserts,
the
Board agent should have relied on Travis Unified School District ( 1992) PERB Decision
No. 917 (Travis) and Chula Vista School District (1990) PERB Decision No. 834
(Chula Vista). 	CCPOA asserts that, pursuant to that authority, it effectively put the State
on
notice that it was unwilling to waive its statutory rights and thereby objected to the
consideration
of
non-mandatory subjects
of
bargaining.
DPA'S RESPONSE
DPA argues that the Board agent correctly dismissed the unfair practice charge.
DPA
first argues that two
of
the three proposals(§§ 10.02 and 27.01) at issue did not require a
waiver
of
state law. 	Second, the State argues the Board agent correctly determined that
CCPOA failed to communicate that it objected to the inclusion
of
non-mandatory subjects
of
bargaining.
DISCUSSION
It is well established that parties are free to negotiate over the inclusion
of
non-
mandatory subjects
of
bargaining. (Lake Elsinore School District (1986) PERB Decision
No. 603 (Lake Elsinore); San Mateo; Chula Vista.) A party may not, however, legally insist
upon the acceptance
of
such proposals "in the face
of
a clear and express refusal by the union
to bargain" over them. (Lake Elsinore.) Thus, the insistence to impasse on non-mandatory
subjects
of
bargaining is a per se unfair practice. (Travis; Chula Vista; Lake Elsinore; Modesto
City Schools (1983) PERB Decision No. 291; Ross School District Board
of
Trustees (1978)
PERB Decision No. 48.) Applying this rule, PERB has held that an employer may not insist to
impasse that a union waive statutory rights, such as the right to file grievances in its own name.
(Travis; Chula Vista.)
3

In San Mateo, the Board articulated the Lake Elsinore rule as follows:
Under Lake Elsinore, the Board held that parties may engage in
negotiations dealing with permissive, nonmandatory subjects
of
bargaining, but once a party subsequently decides to take a
position that the nonmandatory subject not be included in the
collective bargaining agreement, that party must express its
opposition to further negotiation on the proposal as a prerequisite
to charging the other party with bargaining to impasse on a
nonmandatory subject
of
bargaining.
CCPOA asserts that the administrative law judge's reliance on this language in
San Mateo is misplaced because it is actually dicta in that, under the facts
of
that case,
the
Board determined that the proposal (concerning released time) was a mandatory subject
of
bargaining; thus, there was no per se violation under a conditional bargaining theory.
According to CCPOA, the language in San Mateo imposes a more difficuit burden on
an
employee organization by requiring it to refuse to bargain over the statutory right. 	Instead,
CCPOA argues, Travis and Chula Vista set forth a less stringent burden on CCPOA to
establish that it "merely needs to put the employer on notice that it was unwilling to agree to
language that it believes deprives it or its members
of
statutory rights," even though it
has
not
refused to bargain over the proposal. Thus, CCPOA asserts that in Travis, the Board found it
sufficient that the union "did make it clear its contention that it was improper for the District to
insist on language which it believed deprived it
of
statutory rights." CCPOA further points out
that in Chula Vista the Board found that "
...
the Association's statements [were] sufficient
to
put the District on notice that the Association was unwilling to waive its right to represent its
members."
We do not find CCPOA's arguments persuasive. Lake Elsinore, Travis and Chula Vista
all make it clear that the party opposing the non-mandatory subject must communicate its
4

opposition to further negotiation about the non-mandatory proposal. Thus, in Chula Vista, the
Board stated:
... while the parties may engage in negotiations over proposals
dealing with permissive, nonmandatory subjects
of
bargaining,
when one party subsequently decides to take the position that the
nonmandatory proposal not be included in the contract, that party
must express its opposition to further negotiation on the proposal
as a prerequisite to charging the other party with bargaining to
impasse on a nonmandatory subject
of
bargaining.
(Citations omitted.)
In Travis, the school district insisted to impasse on maintaining a contract
provision
that limited the union's right to file grievances on its own behalf, a subject that had
been
determined to be non-mandatory in Chula Vista and South Bay Union School District (
1990)
PERB Decision No. 791. The union rejected the empioyer's proposai to maintain the
status
quo and continued to insist on its own proposal to modify the contract provision so as
not
to
waive its statutory rights. 	Finding the facts
of
this case to be very similar to those
of
Chula Vista, the Board found that the union's continued refusal to waive its statutory rights,
while at the same time continuing to press for inclusion
of
its proposal, "ma[ d]e clear its
contention that it was improper for the district to insist on language which it believeddeprived
it
of
its statutory rights."
The Board's statements in San Mateo are consistent with the standards set forth
in
Lake Elsinore, Chula Vista and Travis. 	In all
of
these cases, the Board required a showing that
the party objecting to the inclusion
of
the non-mandatory subject clearly communicate its
opposition to further consideration
of
the proposal. As discussed below, CCPOA has failed to
meet this burden.
5

The issue here is whether CCPOA communicated its opposition to further negotiation
about what it believed to be non-mandatory proposals that would require a waiver
of
statutory
rights. 	CCPOA contends that it effectively put the State on notice by the following conduct:
1.	
The letter dated August 31, 2007, which contained the following statement:
"YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS THAT REQUIRE US
TO AGREE TO WAIVE STATE LAW FOR OUR MEMBERS. THAT
IS
NOT A
LEGITIMATE EFFORT TOWARDS AN AGREEMENT";
2.	
In its August 31, 2007 letter, CCPOA also sought further clarification from the
State on the intent
of
LBFO sections 10.02 and 11.11, to which the State never
responded; and
3. 	CCPOA excluded the disputed sections from its September 5, 2007, letter listing
the 133 proposals CCPOA found acceptable from the State's August 22, 2007 package.
The State argues that CCPOA did not place it on notice because: (1) the purpose
of
the
questions was to clarify their meaning as opposed to an expression
of
opposition to further
negotiation, and (2) the August 31, 2007 letter made clear that CCPOA accepted some parts
of
DP A's proposal and requested further information on the rest, without objecting to the
packaged offer.
We find the Board agent correctly determined that CCPOA's actions failed to put the
State on notice that it opposed negotiations on the non-mandatory subject. The August 31,
2007 letter does not communicate a clear opposition to negotiate about what CCPOA believed
to be non-mandatory subjects of bargaining. Instead, it merely sets forth CCPOA' s belief that
the State's proposals sought a waiver of state law, but does not communicate whether or not
CCPOA would be willing to consider such proposals. CCPOA's request for clarification as to
6

whether Sections 10.02 and 11.11 were intended to waive statutory rights too, does not
communicate a clear opposition to their inclusion. Finally, the fact that CCPOA accepted
some, but not all,
of
DPA's
proposal and requested clarification does not communicate
opposition to further negotiations. To the contrary, CCPOA's requests for clarification
could
reasonably be construed as demonstrating a willingness to continue negotiations over
these
subjects; indeed, CCPOA did continue to negotiate over the disputed sections. Thus,
unlike
in
Travis and Chula Vista, CCPOA in this case did not clearly communicate to DP A that
it
would
not consider any proposals that required it to waive its members' statutory rights.6
ORDER
The unfair practice charge in Case No. SA-CE-1649-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
7
Because we conclude that CCPOA did not meet its burden of communicating a clear
opposition to further negotiations over the disputed sections, we need not and do not reach the
issue of whether, in fact, the proposals required a waiver of statutory rights and therefore were
non-mandatory subjects of bargaining.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
April 11, 2008
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	California Correctional Peace Officers Association v. State of California (Department of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1649-S
DISMISSAL LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 8, 2008. The California Correctional Peace Officers
Association (CCPOA) alleged that the State of California (Department of Personnel
Administration) (State or DPA) violated the Ralph C. Dills Act (Dills Act) 1 by engaging in
conditional bargaining.
In the attached Warning Letter dated February 21, 2008, CCPOA was informed that the above-
referenced charge did not state a prima facie case. CCPOA was advised that, if there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in that letter,
the charge should be amended. CCPOA was further advised that, unless the charge was amended
to state a prima facie case or withdrawn prior to February 29, 2008, the charge would be
dismissed.
CCPOA sought and was granted additional time in which to amend its charge, and a First
Amended Charge was filed with PERB on March 4, 2008. In its amended charge, CCPOA
alleges the State violated the Dills Act by insisting to impasse on non-mandatory subjects of
bargaining and by presenting package offers that conditioned agreement on mandatory subjects
upon agreement to proposals affecting non-mandatory subjects of bargaining.
More specifically, CCPOA alleges four sections in package proposals presented by DP A on
August 22 and September 12, 2007 involve non-mandatory subjects of bargaining, and thus
impermissibly condition agreement on other, mandatory subjects. The four alleged non-
mandatory subjects identified in the amended charge concern the following sections of the
proposed Memorandum of Understanding (MOU):
1. MOU section 10.02.D: The issue here concerns the State's proposal to delete language
stating that employees will not be "subject to any type of corrective or disciplinary action ...
based solely on the amount or frequency of [sick leave] use." CCPOA argues that agreement to
1 The Dills Act is codified at Government Code section 3512 et seq.

SA-CE-1649-S
April 11, 2008
Page 2
the proposed change in language in this section waives statutory rights
of
employees under
Labor
Code section 233. Labor Code section 233, subdivision (c), which
is
applicable to the State
employer, provides that, "No employer shall deny an employee the right to use sick leave
or
discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an
employee for using, or attempting to exercise the right to use, sick leave to attend to an illness
of
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2.	
MOU section 11.11.F.2: Section 11.11 begins with the statement that "CCPOA
and
the
State agree that the employees listed below are working under the provisions
of
Section
207k
of
the Fair Labor Standards Act (FLSA) and the parties acknowledge that the employer is declaring
a specific exemption for these employees." The State's proposal included continuation
of
language in paragraph F.2 whereby "CCPOA agrees that neither it nor any
of
its employees acting
on their own behalf or in conjunction with other law firms shall bring any suit in court
challenging the validity
of
this provision under the FLSA." Here, CCPOA objects to inclusion
of
this waiver language in the proposed agreement.
3. MOU section 12.02: Section 12.02 concerns "permanent involuntary transfer
by
inverse seniority." CCPOA notes that the language does not reference the right
of
an employee to
a minimum notice period as to an involuntary transfer made under this MOU provision.
CCPOA
notes further that Government Code section 19994.1 requires the State, under specified
circumstances, to provide an employee "a written notice
of
transfer 60 days in advance
of
the
effective date
of
the transfer," unless a MOU contains a conflicting provision.
4. MOU section 27.01: Section 27.01
of
the expired MOU was entitled "Entire
Agreement." The language quoted by CCPOA in its charge from this article was proposed
by
DPA as a new paragraph
Din
Section 27.01, but DPA also noted that the proposed language
incorporated existing language, with modifications, from the parties' Side Letter #8. In brief, the
objected-to proposal would allow the Department
of
Corrections & Rehabilitation (CDCR) and
the Department
of
Mental Health (DMH) to request a waiver
of
the otherwise-applicable 30-day
notice requirement and/or necessity to meet and confer with CCPOA.2 The language would
authorize the departments to make the request where the department believed its business
necessity to make changes in areas within the scope
of
representation must be expedited or where
the change would have a de minimus effect on Unit 6 employees.
Background
CCPOA is the exclusive representative of State Bargaining Unit 6 - Corrections. The most recent
MOU between CCPOA and the State expired by its 0W11 terms as
of
June 30, 2006. By letter
dated April 13, 2006, DP A notified CCPOA
of
its readiness to commence bargaining toward a
successor MOU.
The 30-day notice period and description of when the duty to meet and confer would be
applicable were described elsewhere in Section 27.01. The proposed contract language at issue
here would not apply to matters otherwise covered by the MOU.

SA-CE-1649-S
April 11, 2008
Page 3
On May 10, 2007, the State filed with PERB a Request for Impasse Determination/
Appointment
of
Mediator. 	CCPOA opposed the request, but the request was approved and a
mediator was appointed on May 17, 2007.
On August 22, 2007, DPA presented a "complete Package Offer
of
August 22, 2007 and
governing language proposals" to CCPOA. The cover letter accompanying the proposal
referenced the State's understanding that CCPOA had, earlier that day, "informed the
mediatorthat it was withdrawing from mediation and would no longer participate." The cover letter alsostated that CCPOA's reply was expected by September
5,
2007.
The charge states that "CCPOA could not accept the entire offer as presented. 	However, a
significant portion
of
the State's offer was acceptable to CCPOA and consistent with preliminary
negotiation discussions."
By letter dated August 31, 2007, CCPOA responded to the August 22 package offer.3
CCPOA's
letter, in part, referenced prior invitations to State representatives to attend a CCPOA training
conference held on August 28 and 29, 2007, at which time CCPOA hoped the State could
"explain content and answer questions about this voluminous proposal."
The August
31
letter also stated that CCPOA conference delegates had reviewed and discussed
the State's offer, "asked many more questions than [CCPOA's] negotiating team had answers,"
and passed a motion to submit questions to the State's negotiating team.
CCPOA' s letter also included the following:
YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS
THAT REQUIRE US TO AGREE TO WAIVE ST ATE LAW FOR
OUR MEMBERS. 	THAT
IS
NOT A LEGITIMATE EFFORT
TOW ARDS AGREEMENT.
It will be extremely difficult, perhaps impossible, to engage in any
manner meaningful enough to understand and subsequently sign a
358 page long-term contract without some face-to-face discussions.
Your team doesn't seem to have any sense
of
urgency.
We are still willing to work very hard for long honrs to get the job
done. However, we are at a loss as to how we can meaningfully
respond to the deadline that you set, without first receiving
responses to the questions that [are] attached. Please understand that
this is not an exhaustive list
of
all the questions your proposal
generates. However, the answers to these few may provide us the
information necessary to decide our course of action. 	We eagerly
await your timely response.
(Emphasis in original.)
The letter was addressed to DP A Director David Gilb.

SA-CE-1649-S
April 11, 2008
Page 4
Attached to the August 31 correspondence were 30 numbered items/questions. Included were the
following items/questions:
24. Section 10.02: Does the State's proposal go below State Law?
If so, explain the State's legal authority to do so. Would the State be
prepared to arbitrate any claim that adverse actions based on sick
leave violated the labor code? With all remedies available under the
labor code? [Sic]
27. Section 11.11: Can the State impose an exemption to the labor
code absent bargaining unit agreement?
30, Section 27.01: How is CCPOA expected to be able to identify
impact on to [sic] the bargaining unit's members prior to discussing
management's proposed change?
(Emphasis in original.)
Director Giib responded to CCPOA's letter by correspondence dated September 4, 2007. lJ.t' A's
letter consisted of three pages plus a one-page attachment that included items identified as
responses to approximately 15 of CCPOA's 30-item list of questions. The charge alleges that
DP A's response was "curt, evasive and argumentative," and "yielded answers deliberately
calculated to be of no assistance in understanding or evaluating" the State's offer.
On September 5, 2007, CCPOA again wrote to Director Gilb. This three-page letter commented
critically on various aspects of the September 4 response from DP A, including an assertion that it
left each question posed on August 31 "substantially unanswered." CCPOA, however, also stated
the following:
We remain willing to meet in negotiations, fairly conducted to
obtain a successor [MOU] and we await more comprehensive
answers to the questions posed in the August 31 letter. In the
interim and in an effort to demonstrate our genuine desire to
stimulate bargaining and reach an equitable agreement, CCPOA
agrees to accept DP A's August 22, 2007 offer to rollover, or
rollover with changes related to SB 737, the [133] sections listed
below.
.
Included in the list of sections regarding which CCPOA was willing to accept DP A's offer was
Section 12.02. 	CCPOA asserts in the charge that it "neither accepted nor declined the remaining
provisions" ofDPA's package offer from August 22, 2007.
Discussion
The Board has long held that it is unlawful to insist "to impasse and during impasse on
contractual language outside the scope of representation." (Travis Unified School District (1992)
PERB Decision No. 917; Mt. Diablo Unified School District (1990) PERB Decision No. 844;

SA-CE-1649-S
April 11, 2008 .
Page 5
Chula Vista City School District (1990) PERB Decision No. 834; South Bay Union School
District (1990) PERB Decision No. 791; Lake Elsinore School District (1986) PERB Decision
No. 603 (Lake Elsinore); see also South Bay Union School District v. Public Employment
Relations Board (1991) 228 Cal.App.3d 502.)
In San Mateo Countv Community College District (1993) PERB Decision No. 1030 (San I\1ateo),
the Board in relevant part stated:
Under Lake Elsinore, the Board held that parties may engage in
negotiations dealing with permissive, nonmandatory subjects
of
bargaining, but once a party subsequently decides to take a position
that the nonmandatory subject not be included in the collective
bargaining agreement, that party must express its opposition to
further negotiation on the proposal as a prerequisite to charging the
other party with bargaining to impasse on a nonmandatory subject
of
bargaining.
The party objecting to the inclusion
of
a non-mandatory subject
of
bargaining is not required to
register its objection by any particular phrase or by highly specific language; instead, what is
required is that the other party be put on notice
of
the objection. 	(Travis Unified School District,
supra, PERB Decision No. 917; Chula Vista City School District, supra, PERB Decision
No. 834.)
While parties are free to negotiate over the pennissive subject
of
a waiver
of
statutory rights, a
waiver may not be unilaterally implemented. (Rowland Unified School District (1994) PERB
Decision No. 1053
.)
Insistence to impasse and during impasse on the waiver
of
a statutory rightis per se an unfair practice, provided the party opposing negotiations on the non-mandatory
subject makes its objection known; as discussed above. 	(San Mateo, supra, PERB Decision
No. 1030.)
Thus, there are two elements to consider in determining whether a violation under this theory has
been stated: (1) whether the subject is a permissive or non-mandatory subject
of
bargaining; and
(2) whether the charging party made known its objection to inclusion
of
the subject in the
negotiations. The allegations concerning each
of
the proposed MOU sections listed above shall
be considered in turn.
MOU Section 10.02.D
As discussed above, Labor Code section 233, subdivision (c) provides that, "No employer shall
deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend,
or in any manner discriminate against an employee for using, or attempting to exercise the right to
use, sick leave to attend to an illness of a child, parent, spouse, or domestic partner of the
employee." Thus, the provisions of this statute are specific to the use of sick leave "to attend to
an illness of a child, parent, spouse, or domestic partner." The language at issue in the MOU, on
the other hand, is broader and pertains to potential "corrective or disciplinary action
...
based
solely on the amount or frequency of [sick leave] use."

SA-CE-1649-S
April 11, 2008
Page 6
The subjects of sick leave and sick leave use policies, as well as rules that concern subjecting
employees to disciplinary action, are subject to negotiation. (San Bernardino City Unified School
District (1998) PERB Decision No. 1270.) CCPOA, in effect, argues that the State's proposal in
this area falls outside the scope ofrepresentation because the State sought CCPOA's waiver of
employee rights under a provision of the Labor Code. 	Yet, the State's proposals are silent as to
the application of the Labor Code provision at issue. Thus, CCPOA' s unfair practice charge
relies on legal conclusions rather than the allegation of specific facts to support its allegation, but
legal conclusions are not sufficient to state a prima facie case. (State of California (Department of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944; Charter Oak Unified School District (1991) PERB
Decision No. 873.)
In addition, the questions posed by CCPOA regarding this MOU section4 in its August 31
correspondence fall far short of notice to DPA that CCPOA objected to further negotiations on the
subject. Thus, the allegation concerning proposed MOU Section 10.02.D fails to satisfy either
element of the applicable test under San Mateo and other cases discussed above. Therefore, the
allegation that the State unlawfully insisted to impasse with respect to proposed MOU Section
10.02.D is dismissed based on the facts and reasons set forth above.
MOU Section 11.11.F.2
The proposal in MOU Section 11.11.F.2 clearly concerns a proposed waiver of the right to sue
with regard to proposed exemptions to the FLSA, assuming the parties had otherwise
memorialized such agreement on such exemptions in MOU Section 11.11. However, the charge
fails to demonstrate that CCPOA made known its objection to bargaining over exemptions to the
FLSA, a federal statute, or to bargaining over possible waiver of the right to challenge such
exemptions in the event of an agreement. While CCPOA, in its August 31 correspondence,
generally objected to proposals that would require [CCPOA] to agree to "waive state law" for.its
members, no similar objection was lodged with regard to federal law. Nor did the August 31
correspondence otherwise raise an objection to continued negotiations with regard to this section,
as the list of questions attached merely asked whether "the State [could] impose an exemption to
the labor code absent bargaining unit agreement."
Thus, the allegation concerning proposed MOU Section 11. 11.F.2 fails to satisfy both elements of
the applicable test, and is dismissed. (San Mateo, supra, PERB Decision No. 1030.)
MOU Section 12.02
While CCPOA correctly observes that Government Code section 19994.1 requires the State,
under specified circumstances, to provide an employee "a written notice of transfer 60 days in
advance of the effective date of [an involuntary] transfer," and that DP A's proposed language in
Section 12.02 did not reference this minimum notice requirement, these facts are not sufficient to
As quoted above, the relevant portion of the correspondence read, "Does the State's
proposal go below State Law? If so, explain the State's legal authority to do so. Would the State
be prepared to arbitrate any claim that adverse actions based on sick leave violated the labor
code? With all remedies available under the labor code? 	[Sic]"

SA-CE-1649-S
April 11, 2008
Page 7
demonstrate that the State's proposal sought a waiver
of
statutory rights or otherwise addressed a
non-mandatory subject
of
bargaining. First, Section 12.02 concerns matters pertaining to
the
transfer
of
employees, and the Board has long held that the transfer
of
employees
is
within
thescope
of
representation under the Dills Act. (State
of
California (Department
of
Transportation)
(1983) PERB Decision No. 333-S.) Further, while it is true that the State's proposal did
not
reference the minimum notice requirements
of
Goverrm1ent Code section 19994.1, it is the
absence
of
any reference to minimum notice that undercuts CCPOA's case. 	While Government
Code section 19994.1, at subdivision (c), provides that its provisions may be superseded
by theterms
of
a MOU, this circumstance is triggered only where the provisions
of
the statute are
in
conflict with the terms
of
a MOU. Here, the silence
of
the proposed MOU provision with respect
to minimum notice precludes finding that its language would conflict with, and thus supersede,
the provisions
of
Government Code section 19994.1.
Moreover, even
if
the proposed language involved a non-mandatory subject
of
bargaining,
the
charge fails to demonstrate that CCPOA made known an objection to negotiations on this subject.
Instead, by letter dated September 5, 2007, CCPOA stated its willingness to agree to certain
proposals contained in the August 22, 2007 package proposal by DP A, including specifically the
proposal regarding Section 12.02.
Thus, the allegation concerning proposed MOU Section 12.02 fails to satisfy either element
of
the
applicable test under San Mateo and other cases discussed above.
Therefore, the allegation that the State unlawfully insisted to impasse with respect to its proposed
MOU Section 12.02 is dismissed based on the facts and reasons set forth above.
MOU Section 27.01.D
As discussed more fully above, the instant charge only addresses the language in Section 27.01.D
that would have allowed the CDCR and DMH to request a future waiver by CCPOA
of
its
opportunity to receive notice and an opportunity to meet and confer over proposed changes under
specified conditions. Nothing in the language required CCPOA to agree to such waivers.
Thus, the charge fails to demonstrate that the State's proposal amounted to a proposed waiver. In
addition, the charge does not establish that CCPOA ever clearly objected to this proposal being
included in the negotiations on the grounds that it involved a non-mandatory subject ofbargaining. As discussed above, the general statement of objection by CCPOA to State proposals
that concerned possible waivers
of
state law was not speciffo enough to inform the State as to
which proposals were found objectionable. Nor did the list of questions attached to the Aufust
31
correspondence convey an objection to Section 27.01.D being included in the negotiations.
Thus, the allegation concerning proposed MOU Section 27.01.D fails to satisfy either element ofthe applicable test and is dismissed. (San Mateo, supra, PERB Decision No. 1030.)
The relevant question attached to the August 31 correspondence read as follows: "How is
CCPOA expected to be able to identify impact on to [sic] the bargaining unit's members prior to
discussin~ management's proposed change?"

SA-CE-1649-S
April 11, 2008
Page 8
Right to Appeal
Pursuant to PERB Regulations,6 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
'"'"YY'l	
..J..-'..L,l..l
.
.J.L/.._...1.,	
'h,,,.
and
t1,e	
J...L	
1"'1,.1·	
V.L
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rri""'
1
U-..l.J.t..:,	
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fi1ve	
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,...r
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docu"'~".-.+"	
, 	.L.l.L._..1..1..\.IJ
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prov;r1,,r1	
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tf"'I	
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Bo<>rd	
4-'- 	•
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document is
also considered "filed" when received by facsimile transmission before the close
of
business
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 95811-4124
(916) 322-8231
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also 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
6 PERB's Regulations are codified at California Code of Regulations, title 8, section ·
31001 et seq.

SA-CE-1649-S
April 11, 2008
Page 9
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,
TAMI R. BOGERT
General Counsel
By-tr-=------------
Les Chisholm
Division Chief
Attachment
cc: Paul M. Starkey

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
February 21, 2008
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
ARNOLD SCHWARZENEGGER, Governor
Re: 	California Correctional Peace Officers Association v. State
of
California
(Department
of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1649-S
WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment
Relations
Board (PERB or Board) on January 8, 2008. 	The California Correctional Peace Officers
Association (CCPOA) alleges that the State
of
California (Department
of
Personnel
Administration) (State or DPA) violated the Ralph C. Dills Act (Dills Act)1
by engaging
in
conditional bargaining._
CCPOA is the exclusive representative
of
State Bargaining Unit 6 - Corrections. The
most
recent memorandum
of
understanding (MOU) between CCPOA and the State expired by
its
own terms as
of
June 30, 2006. By letter dated April 13, 2006, DP A notified CCPOA
..
of
its
readiness to commence bargaining toward a successor MOU.
On
:May
10, 2007, the State filed v.rith PERB a Request for Impasse DeterminatiorJ
Appointment
of
Mediator. 	CCPOA opposed the request, but the request was approved
and
a
mediator was appointed on May 17, 2007.2
On August 22, 2007, DP A presented a "complete Package Offer
of
August 22, 2007 and
governing language proposals" to CCPOA. 	The cover letter accompanying the proposal
referenced the State's understanding that CCPOA had, earlier that day, "informed the mediator
that it was withdrawing from mediation and would no longer participate." The coverletter
also stated that CCPOA's reply was expected by September 5, 2007.
1 The Dills Act is codified at Government Code section 3 512 et seq. 	The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Notice has been taken of the contents of PERB's files concerning the related impasse
case, PERB Case No. SA-IM-3041-S.

SA-CE-1649-S
February 21, 2008
Page 2
The charge states that "CCPOA could not accept the entire offer as presented. However, a
significant portion of the State's offer was acceptable to CCPOA and consistent with
preliminary negotiation discussions."
By letter dated August 31, 2007, CCPOA responded to the August 22 package offer.3
CCPOA's letter, in part, referenced prior invitations to State representatives to attend a
CCPOA training conference held on August 28 and 29, 2007, at which time CCPOA hoped the
State could "explain content and answer questions about this voluminous proposal." CCPOA
further noted that the State did not respond to the offer to attend.
The August 31 letter also stated that CCPOA conference delegates had reviewed and discussed
the State's offer, "asked many more questions than [CCPOA's] negotiating team had answers,"
and passed a motion to submit questions to the State's negotiating team.
CCPOA' s letter also included the following:
There was an overwhelming concern from our delegates that we
might accept or reject a contract proposal without fully
understanding the intent or consequences of such enormous
contract changes. The CCPOA negotiating team was reminded
that "trust" would not replace written design or intent in any
future MO Us. 	It seems none of our members have forgotten how
their "trust" was abused in the 2004 amendment to our 2001-2006
MOU.
It seems reasonable for us to ask some questions about a contract
with so many changes and/or outright deletions of language,
particularly one of such duration as this one proposes. 	CCPOA
negotiators, some members of past teams were present, spent the
last 25 years working on getting some of the language your
proposal eliminates. Your attendance at our conference may have
stimulated a different outcome.
Engaging one another in this fashion seems ridiculous in light of
the acknowledged dangers from the severe overcrowding and
understaffing in our institutions. The Governor, the Legislature
and the Secretary have all spoken publicly about the impending
threat to inmates, staff and the public which is only exaserbated
[sic] by such overcrowding. Yet you refuse to meet with us as
individuals or as a team. Despite your assurances to the contrary
to the Legislature, the media and the people of California, the
mediation process had no positive effect whatsoever. You said
The letter was addressed to DP A Director David Gilb.

SA-CE-1649-S
February 21, 2008
Page 3
you never wanted to
go
to impasse, yet your team consistently
failed to offer anything that we could agree to.
YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS
THAT REQUIRE
US
TO AGREE TO WAIVE STATE LAW
FOR OUR MEMBERS. THAT
IS
NOT A LEGITIMATE
EFFORT TOWARDS AGREEMENT.
It will be extremely difficult, perhaps impossible, to engage in
any manner meaningful enough to understand and subsequently
sign a 358 page long-term contract without some face-to-face
discussions. 	Your team doesn't seem to have any sense
of
urgency.
We are still willing to work very hard for long hours to get the
job done. However, we are at a loss as to how we can
meaningfully respond to the deadline that you set, without first
receiving responses to the questions that [are] attached. Please
understand that this is not an exhaustive iist
of
an the questions
your proposal generates. However, the answers to these few may
provide us the information necessary to decide our course
of
action. We eagerly await your timely response.
(Emphasis in original.)
Attached to the August
31
correspondence were 30 numbered items/questions, many
of
which
included more than one question.
Director Gilb responded to CCPOA's letter by correspondence dated September 4, 2007.
DP A's letter consisted
of
three pages plus a one-page attachment that included items identified
as responses to approximately
15
of
CCPOA's 30-item list
of
questions. The charge alleges
that DPA's response was "curt, evasive and argumentative," and "yielded answers deliberately
calculated to be
of
no assistance in understanding or evaluating" the State's offer.
On September 5, 2007, CCPOA again wrote to Director Gilb. This three-page letter
commented critically on various aspects of the September 4 response from DP A, including an
assertion that it left each question posed on August
31
"substantially unanswered." CCPOA,
however, also stated the following:
We remain willing to meet in negotiations, fairly conducted to
obtain a successor [MOU] and we await more comprehensive
answers to the questions posed in the August 31 letter. In the
interim and in an effort to demonstrate our genuine desire to
stimulate bargaining and reach an equitable agreement, CCPOA
agrees to accept DP A's August 22, 2007 offer to rollover, or

SA-CE-1649-S
February 21, 2008
Page 4
rollover with changes related to
SB
737, the [133] sections listed
below.
CCPOA asserts in the charge that it "neither accepted nor declined the remaining provisions"
ofDPA's
package offer from August 22, 2007.
The statement
of
the charge concludes as follows:
On September 12, 2007, DPA presented CCPOA with a Last,
Best and Final [LBF or LBFO], modestly modified from the offer
of
August 22, 2007. DPA's letter announcing the LBF assumed
CCPOA's rejection in contradiction to the specific intent stated in
the response. The DP
A's
letter reaffirmed "rejection
of
any part
of
a package proposal constitutes a rejection
of
the entire package
proposal." On September 18, 2007, DPA announc.ed
implementation
of
a modified form
of
the LBFO.
The State's refusal to accept and sign agreements on sections
of
their own proposals that CCPOA also agreed with, unless
CCPOA accepted without modification the undefined, untested
and potentially bitter aspects
of
the entire package is unfair and
constitutes conditional bargaining. This conduct by DPA
violated Government Code § 3 519.
(Citation to attachment omitted.)
Discussion
CCPOA alleges that the State violated Government Code section 3519 by engaging in
conditional bargaining. CCPOA does not expressly allege a violation
of
Dills Act section
3519(e), but it is necessary under applicable precedent to analyze conduct after the initiation
of
statutory impasse procedures as an alleged violation
of
section 3519(e) rather than 3519(c ).
(See Moreno Valley Unified School District v. Public Employment Relations Board (1983)
142 Cal.App.3d 191 and, for example, Temple City Unified School District (1990) PERB
Decision No. 841.)
Under long-standing Board precedent, a party may not negotiate to impasse a proposal that
conditions agreement to a non-mandatory subject on acceptance
of
mandatory subjects
of
bargaining, i.e., conditioning agreement, and insisting to impasse, on such non-mandatory
subjects, is a per se unfair practice. (Lake Elsinore School District (1986) PERB Decision
No. 603; Travis Unified School District (1992) PERB Decision No. 917; Berkeley Unified
School District (2005) PERB Decision No. 1744.) In this respect, PERB follows National
Labor Relations Board (NLRB) precedent. (See NLRB v. Wooster Division, of the Borg-
Warner Corp. (1958) 356 U.S. 342.)

SA-CE-1649-S
February 21, 2008
Page 5
It is also an indicia
of
bad faith
to
impose unlawful conditions during negotiations. (See, e.g.,
Fremont Unified School District (1980) PERB Decision No. 136 [conditioning agreement
of
economic matters on agreement with non-economic matters]; Gilroy Unified School District
(19 84) PERB Decision No. 4
71
[insisting on specifying who may be on the opposing
negotiating committee].)
However, the Board has also held that insistence upon negotiations on a mandatory subject
of
bargaining, such
as
released time,
is
not a per se violation
of
the duty to bargain. (San
Mateo
County Community College District (1993) PERB Decision No. 1030; State
of
California
(Department
of
Personnel Administration) (1991) PERB Decision No. 900.) In assessing
conditional bargaining allegations, PERB has found no violation where, in exchange for
acceptance
of
the union's economic demands, the employer seeks the union's commitment tosupport legislation targeting civil service reforms. 	(State
of
California (Department
of
Personnel Administration) (1998) PERB Decision No. 1249-S.) Nor did the Board find a
violation where the employer's wage offer was conditioned on the union's acceptance
of the
offer within a specified time limit. (Trustees
of
the California State University (2006) PERBDecision No. 1871-H, affirming board agent's decision.)
Therefore, there is no violation based on the theory
of
conditional bargaining
of
a mandatory
subject
of
bargaining.
Here, the charge alleges only that DP A conditioned acceptance
of
tentative agreement to
portions
of
the State's package offer on CCPOA's acceptance
of
"the undefined, untested and
potentially bitter aspects
of
the entire package." This statement falls well short
of
a
demonstration that the State conditioned agreement on mandatory subjects
of
bargaining
on
CCPOA's agreement to non-mandatory subjects
of
bargaining. PERB Regulation 32615(a)(5)
requires, inter alia, that an unfair practice charge include a "clear and concise statement
of
the
facts and conduct alleged to constitute an unfair practice." The charging party's burden
includes alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No. 873.) 	·
Conclusion
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, you may 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

SA-CE-1649-S
February 21, 2008
Page 6
amended charge or withdrawal from you before February 29, 2008, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief