State of California (Department of Corrections and Rehabilitation, Avenal State Prison) (PERB 2111S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION,
AVENAL STATE PRISON),
Respondent.
Case No. SA-CE-1703-S
PERB Decision No. 	2111-S
June 3, 2010
Appearances: Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; State
of
California (Department
of
Personnel Administration) by Dana R. Brown,
Labor Relations Counsel, for State
of
California (Department
of
Corrections & Rehabilitation,
Avenal State Prison).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: 	This case is 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
its unfair practice charge. 	The
charge
alleged that the State
of
California (Department
of
Corrections & Rehabilitation, A venal State
Prison) (CDCR or State) violated the Ralph C. Dills Act (Dills Act), section 3519,1
by
unilaterally changing the release time policy and by engaging in surface bargaining.
The
Board agent dismissed the charge for failure to state a prima facie case.
The Dills Act is codified at Government Code section 3512 et seq. 	Section
3519
states, in relevant part, that it is unlawful for the State to:
(c) Refuse or fail to meet and confer in good faith with a
recognized employee organization.

The Board reviewed the dismissal and the record in light
of
CCPOA's appeal,2 the
State's response to the appeal,3 and the relevant law. Based on this review, the Board finds the
dismissal
of
the unfair practice charge
to
be well-reasoned, adequately supported by the record
and in accordance with applicable law. Accordingly, the Board adopts the warning and
dismissal letters
as
the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SA-CE-1703-S
is
hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
2 CCPOA did not appeal the dismissal
of
the unilateral change allegation.
3 The Department of Personnel Administration (DP A) contends the charge was filed
against the wrong respondent and should be dismissed on that basis. CCPOA listed DP A as
the party against which the charge was filed, rather than CDCR. The Board agent identified
CDCR as the respondent in the case caption, consistent with information contained in
the
statement of the charge. DP A was served with a copy of the charge and has shown no
prejudice as a result of the failure to identify the specific department alleged to have committed
an unfair practice on the face of the charge form. 	Therefore, CCPOA's failure to name CDCRas the respondent in this case is not sufficient, standing alone, to warrant dismissal of the
charge. (State
of
California (Department
of
Corrections & Rehabilitation) (2010) PERB
Decision No. 2108.)
2

STATE OF CALIFORNIA 	(
=============·	
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
December 4, 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
Corrections & Rehabilitation, Avenal State Prison)
Unfair Practice Charge No. SA-CE-1703-S
DISMISSAL LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 30, 2008. The California Correctional Peace Officers
Association (CCPOA or Charging Party) alleges that the State
of
California (Department
of
Corrections & Rehabilitation, Avenal State Prison( (State, CDCR, or Respondent) violated
section 3519
of
the Ralph
C.
Dills Act (Dills Act) by: (1) implementing a unilateral change
without notifying CCPOA and giving it an opportunity to bargain; and (2) engaging in surface
bargaining.
You were informed in the attached letter dated November 4, 2008 (Warning Letter), that theabove-referenced charge did not state a prima facie case. You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained
in
that
letter, you should amend the charge. You were further advised that, unless you amended thecharge to state a prima facie case or withdrew it prior to November 14, 2008, the charge wouldbe dismissed. On November 10, 2008, you verified to me during our telephone conversation
that you had in fact received the Warning Letter. At your request, I extended at that time thedeadline to file an amended charge to December 3, 2008.
No amended charge was filed with PERB by or on the December 3, 2008 deadline. Therefore,
this charge is being dismissed based on the facts and reasons set forth in the Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party may obtain a review of this dismissal
of
thecharge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
1 The Dills Act is codified at Government Code section 3512 et seq. The text of theDills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1703-S
December 4, 2008
Page 2
this dismissal. 	(Cal. Code Regs, tit. 8, sec. 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 during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. l 1020(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 PERB 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. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 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. (Cal. Code Regs, tit. 8, sec. 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 Cal. Code Regs., tit. 8, sec. 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. i\. document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1703-S
December 4, 2008
Page 3
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
sec. 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 	# 	,
Y aron Par{ovi
Regional Attorney
Attachment
cc: Dana R. Brown

STATE OF CALIFORNIA ( ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
November 4, 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 Corrections & Rehabilitation, A venal State Prison)
Unfair Practice Charge No. SA-CE-1703-S
WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 30, 2008. The California Correctional Peace Officers
Association (CCPOA or Charging Party) alleges that the State of Caiifornia (Department of
Corrections & Rehabilitation, Avenal State Prison; (State, CDCR, or Respondent) violated
section 3519 of the Ralph C. Dills Act (Dills Act) by: (I) implementing a unilateral change
without notifying CCPOA and giving it an opportunity to bargain; and (2) engaging in surface
bargaining.
Investigation of the charge revealed the following relevant information. CCPOA is the
exclusive representative of State Bargaining Unit 6 (BU 6) employees of the State. CCPOA
and CDCR were parties to a Memorandum of Understanding (MOU) that expired by its terms
on June 30, 2006. On September 12, 2007, the State presented its last, best, and final offer
(LBFO) to CCPOA. CCPOA did not accept the State's LBFO. On September 18, 2007, the
State notified CCPOA that, "[p]ursuant to the Ralph C. Dills Act, Government Code Section
3517.8, the State is exercising its right to implement. .. its last, best, and final offer. ... "
On an unspecified time, CDCR informed CCPOA that it intended to implement changes to
CDCR policy regarding "access to medical care for inmates" (ATC). The parties agreed to set
May 23, 2008 as the date to negotiate the matter.
On an unspecified date, Corey Davis, CCPOA Field Representative and lead negotiator for
ATC issues, contacted CDCR Labor Relations Specialist Cynthia Rojas about scheduling dates
for negotiations regarding A TC issues at Avenal State Prison (ASP). It is alleged that
"CCPOA requested that the negotiation occur at one of several possible locations in the area
near ASP." However, Ms. Rojas allegedly insisted that negotiations could only occur at ASP,
and that she would be at ASP on May 23, 2008 to negotiate. Mr. Davis stated that he would
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.

SA-CE-1703-S
November 4, 2008
Page 2
not be at ASP on May 23, 2008, and that "as CCPOA lead negotiator on ATC issues, he was
stating CCPOA's official position that there would be no ATC negotiations on May
23
at
ASP."
On an unspecified date, Ms. Rojas contacted CCPOA member and Chapter President at
ASP
Vito Giannandrea on this matter. Without discussing the substance
of
her discussion with Mr.
Davis, Ms. Rojas asked Mr. Giannandrea
if
it was agreeable to meet at ASP on May 23 for
negotiations regarding the ATC. Mr. Giannandrea agreed to meet at May
23
negotiation
session at ASP.
On an unspecified date, Ms. Rojas authorized Mr. Giannandrea and three other CCPOA
members (Kelly Gomez, Tim Grove, and Pete Rivas) to be released on official business
time
(or "release time") from their regular jobs to attend the May 23, 2008 meeting.
On l'fay 23, 2008, the four CCPOA members, acting as negotiating team members, arrived in
civilian clothing at ASP to negotiate the ATC issue. After the meeting had begun, Ms. Rojas
allegedly announced she was canceling the meeting because Mr. Davis was not present.
	It
is
alleged that Ms. Rojas retracted the release time authorization for these employees.
Specifically, according to CCPOA, she informed the officers they either had to drive
home,
put
on their uniforms, come back and work the remainder
of
their shifts, or burn their own holiday
time for the rest
of
their regular shift.
It
is
alleged that the employees were "forced to
burn
six
hours
of
their own time for the remainder
of
their shifts that day."
Respondent alleges that "Ms. Rojas
...
authorized two hours
of
official union business
(OB)
for the CCPOA team members present and informed them that they had the option to
return
to
work for the rest
of
their shift
if
they wished."
DISCUSSION
The charge does not specifically allege a theory by which CDCR's conduct violates the Dills
Act. The Board has held that, where a charging party fails to allege that any specific section
of
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determine under what section the charge should be analyzed. (See Los Banos Unified School
District (2007) PERB Decision No. 1935; Los Angeles County Office
of
Education (1999)
PERB Decision No. 1360.)
It
appears the charge alleges that CDCR engaged in surface
bargaining and implemented a unilateral change without notice to CCPOA and an opportunity
to bargain. For the reasons set forth below, the charge fails to establish, under both theories, a
prima facie violation
of
the Dills Act.
I. Burden
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

SA-CE-1703-S
November 4, 2008
Page 3
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.)
As a threshold matter the charge fails to meet its burden under United Teachers-Los Angeles
(Ragsdale), supra, PERB Decision No. 944, because it fails to describe, for example: (1) the
date Mr. Davis contacted Ms. Rojas regarding scheduling any date(s) for negotiations; (2) who
from CCPOA requested that negotiations "occur at one of several possible locations," and
when such a request was made; (3) the means of communication used (e.g., e-mail, telephone,
letter) by Mr. Davis to contact Ms. Rojas to a schedule a meeting; (4) the means of
communication used (e.g., e-mail, telephone, letter) by Ms. Rojas to communicate with
CCPOA regarding her alleged insistence that the meeting occur on May 23 at ASP; (5) The
date Ms. Rojas contacted Mr. Giannandrea to schedule a meeting; (6) the date Ms. Rojas
authorized release time for Mr. Giannandrea, Ms. Gomez, Mr. Grove, and Mr. Rivas; and (7)
whether Mr. Davis was aware that the aforementioned employees would be attending the
meeting on May 23, 2008.
II. Unilateral Change
It appears that charge is alleging that the State unilaterally changed (or implemented) a release
time policy without providing CCPOA notice and the opportunity to bargain the matter.
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 Union High School District (1982) PERB Decision No. 196.)
It is clear, initially, that the subject of this dispute, paid release time, is a negotiable matter
under the Dills Act. Release time is related to the enumerated subjects of wages and hours. 	It
is a subject well-suited to "the mediatory influence of negotiations" for resolution of disputes.
(Anaheim Union High School District (1981) PERB Decision No. 177; see also, Compton
Community College District (1990) PERB Decision No. 790; State of California (Department
of Personnel Administration) (1991) PERB Decision No. 900-S.)
The remaining question here is whether the State has changed a supposed policy regarding
release time requests. The Implemented Terms of the State's LBFO do not contain a policy for
release time requests, and the charge fails to describe any such release time policy. In that
regard, the charge fails to meet its burden under United Teachers-Los Angeles (Ragsdale_},
supra, PERB Decision No. 944, since it fails to describe: 	(1) whether there existed an
established past practice for release time, and if so, what that practice was, how long it has

SA-CE-1703-S
November 4, 2008
Page 4
been in effect, and on what dates has such practice has been executed; (2) whether in this
context, release time was negotiated as a ground rule for bargaining over the ATC, and
if
so,
what terms were negotiated and when these terms were negotiated; (3) whether there exists a
policy ( either via negotiated agreement or past practice) that addresses whether CCPOA
members must burn their holiday pay
if
a meeting is canceled; and ( 4) whether there exists a
policy requiring members on release time to return to work when a negotiation session has
been cancelled.
The charge also fails to state the alleged change was implemented before the State notified
CCPOA and gave it an opportunity to request negotiations. (See Walnut Valley Unified
School District, supra, PERB Decision No. 160.)
Therefore, the charge fails to demonstrate under a unilateral change theory, a prima facie
violation under the Dills Act.
III. Surface Bargaining
The charge alleges that the employer violated Dills Act section 3519( c) by engaging in
bad
faith or "surface" bargaining. It is the essence
of
surface bargaining that a party goes through
the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an
entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB
Decision No. 80.) Where there is an accusation
of
surface bargaining, PERB will resolve the
question
of
good faith by analyzing the totality
of
the accused party's conduct. The
Board
weighs the facts to determine whether the conduct at issue "indicates an intent to subvert the
negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified Schooi District (i 982) PERB Decision No. 275.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure of the duty to bargain because it amounts to merely going through
the motions
of
negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418
F.2d
736.) Recalcitrance in the scheduling
of
meetings is evidence
of
manipulation to delay
and
obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence
of
bad faith. 	(Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence
of
an unwillingness to engage in a give-
and-take. 	(State
of
California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra, PERB Decision No. 143;
Placerville Union School District (1978) PERB Decision No. 69).

(
SA-CE-1703-S
November 4, 2008
Page 5
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. 	Adamant insistence on a bargaining position is
not
necessarily refusal to bargain in good faith. 	(Oakland Unified School District, supra, PERB
Decision No. 275.) "The obligation
of
the employer to bargain in good faith does not require
the yielding
of
positions fairly maintained." illLRB v. Herman Sausage Co. (5th Cir. 1960)
275 F.2d 229.)
A. 	Release Time
The Dills Act contains an express statutory provision guaranteeing employees meeting
on
behalf
of
the exclusive representative reasonable paid release time for the purpose
of
attending
negotiating sessions. (Gov. Code, § 3518.5.) Refusal to provide release time for the purpose
of
attending negotiating sessions violates the duty to bargain in good faith. 	(Magnolia School
District (1977) EERB Decision No. 19.) The "negotiations" to which the statutory right to
release time applies include time spent at the negotiating table, in caucus with one's own
bargaining team, and in mediation and fact-finding sessions. 	(Burbank Unified School District
(1978) PERB Decision No. 67.) In Modesto City Schools (1983) PERB Decision No.
291,
PERB addressed a refusal to grant release time as an indicia
of
bad faith bargaining.
Here, the charge fails to meet its burden under United Teachers-Los Angeles (Ragsdale), supra,
PERB Decision No. 944, because it fails to describe, for example: (1) the actual time,
on May
23, 2008, that CCPOA members spent at the bargaining table or in caucus; and (2) the
number
of
hours
of
release time initially granted by Ms. Rojas for bargaining over the ATC.
The charge admits that Ms. Rojas granted four CCPOA members release time "for the
day"
to
attend the May 23, 2008 meeting. As discussed above, it is not clear whether the release
time
granted "for the day" constitutes an eight-hour day. However, the facts in the record
show
that
Ms. Rojas granted two hours
of
"official union business time" for the CCPOA members
to
be
present at the May 23, 2008 meeting. Notwithstanding that Ms. Rojas was aware that
Mr.
Davis would not attend the May 23 meeting, the charge fails to demonstrate that the
CCPOA
members were not granted release time (i.e., two hours) for the period
of
time at the
rn;;1:,otiat~v11
c,e;:,;:,~vu.
	Therefore, indicia
of
bad faith bargaining in this context has not
been
satisfied.
B. Ms. Rojas Arrangement
of
Negotiations Without Mr. Davis
As previously noted, in surface bargaining cases the "totality
of
the conduct" test involves a
contextual analysis centered around the ultimate issue
of
ascertaining the respondent's sincere
intent to compromise differences and reach agreement. 	One useful approach in addressing this
issue is to consider the indicia of bad faith with a view to the extent to which the offending
conduct obstructs and subverts, or tends to obstruct and subvert, the negotiations in the context
of the entire course of bargaining. 	(See San Ysidro School District, supra, PERB Decision No.
134 [employer's conduct at bargaining table and away from table analyzed as interference with
employee rights]; Oakland Unified School District, supra, PERB Decision No. 326 [lack
of
negotiating authority must obstruct bargaining process].)

SA-CE-1703-S
November 4, 2008
Page 6
The most egregious conduct, CCPOA claims, was that Ms. Rojas was aware that Mr. Davis
would not be available for negotiations on May 23, yet she scheduled a meeting with CCPOA
members for that purpose, and then retracted six hours
of
members' release time. However,
assuming these facts are true, the charge fails to demonstrate how the State's conduct has
stalled the completion
of
negotiations or in this respect hampered an ability to arrive at an
agreement. 	(United Teachers-Los Angeles (Ragsdale), supra, PERB Decision No. 944.)
Further, Mr. Davis acknowledged that he wanted to meet with the State to negotiate over the
ATC issues. There
is
no evidence in the charge that bargaining progress would be impeded,
because the parties are always free to arrange other dates and times to meet over this matter
and pass proposals. 	-
Therefore, this conduct, as alleged also fails to demonstrate any indicia
of
bad faith bargaining
under the "totality
of
the conduct" test.
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer
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
an amended
charge or withdrawal is not received from you before November 14, 2008, your charge shall be
dismissed.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Yaron Partovi
Regional Attorney
yp