State of California (Department of Personnel Administration) (PERB 1516S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PROFESSIONAL ENGINEERS IN CALIFORNIA
GOVERNMENT,

Charging Party, Case No. SA-CE-1349-S

Vv. PERB Decision No. 1516-S

STATE OF CALIFORNIA (DEPARTMENT OF April 7, 2003

PERSONNEL ADMINISTRATION),

Respondent.

Appearances: Kelley Stimpel Rasmussen, Attorney, for Professional Engineers in California
Government; Howard L. Schwartz, Chief Counsel, for State of Califomia (Department of
Personnel Administration).
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 Professional Engineers in California Government (PECG)
of a Board agent’s dismissal (attached) of its unfair practice charge. The charge alleged that
the State of California (Department of Personnel Administration) (State) violated the Ralph C.
Dills Act (Dills Act)? by violating the parties’ ground rules for negotiations of a new

memorandum of understanding (MOU). PECG alleged that this conduct constituted a

violation of Dills Act sections 3517.5 and 3519(b) and (c). The Board agent dismissed the

NWfember Baker recused himself from this Decision on June 5, 2002.

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

*PECG and the State reached agreement an a tentative MOU for State Bargaining
Unit 9 on April 5, 2002.

charge on the basis that, looking at the totality
of
circumstances, the
State's
alleged violation
of
ground rules
by
its failure to support the tentative agreement did not violate the Dills Act.
The allegation~ contained within this charge were the subject
of
an injunctive
reliefrequest,
which the Board denied on June 14, 2002. Based upon our review
of
the materials in
the
record, including the charge and amended charge, the warning'1 and dismissal lette r,
PECG's
appeal, and the State~s opposition to PECG~s appeal, the Board adopts the Board agent~s
dismissal as the decision
of
the Board itselfbut will address the pertinent is sues below that
were raised
by
PECG in its appi~al.
DISCUSSION
There are three key allegations in the charge, two involving quotes by the Department
of
Personnel Administration"s Director Marty Morgenstern t(Morgens:tern) in major California
newspapers and one involving the State Department ofFinance"s (DOF) proposed
May
budget
revision for Cal1trans" capital outlay support budget. PECG alleges that this conduct violates
its bargaining ground rules 20~ and
23,!l
and thus Dills Act section 3519(c·
).
	In the first
comment, contained
in an April 22, 2.002, Los .Angeles Times article, Morgenstern sbtted that:
"Caltrans is taking another look at the deal
as
a result
of
the
questions, . _. [t]he language on the contracting out is something
that Caltrans worked on rather than us
......
They felt this change
~The warning letter, at page 3, cites Compton Community College Districl ( ll9S9) as
PERB Decision No.
11
2 8.
	The correct citation should be PERB Dec i:sio n No. 118.
iRule 20
of
the parties" ground mles provides:
PECO and the Sltate :agree to recommend :acceptance o!ftbe
U:otal
agreement to the Legislature.
~Rule 23 olf tbe
par1ii.e1.
" ground rules prnvides:
All bargaining team members and sttarl!ff'b both parties mall
C:()11rn
J
is :1t
c:11tly
and without exception support the
.ng(1ec:mc:nt , both
publicly and private [$ic], until
ii.tis
f(lJ)t['(Ila[ :aJiPfJIDWal
«rctiection.
2

in the law met our needs and was appropriate and allowed the
department flexibility on a permanent basis.. "
The context ofthis comment responded to concerns of the business community and Assembly
Republican Leader, Dave Cox (Cox) over the validity of the MOU contracting-out provision in
light of the passage of Proposition 35.1
In the second quote, contained in a Sacramento Bee editorial dated May 2, 2002,
Morgenstern stated that, "We would like to do the right thing and work out a contract tha1t"s
fair to them, but we can"t obviously agree to anything that would violate the will o-f the people
... [w]e can't agree to stufftha1t"s not legal." That article also quotes PECG"s executive
director as stating that this is the first time that the State has not honored a deal. The editorial
shared these comments in the context of the Legislative Cou:n$eJ"S formal opinion that found
the MOU contracting-out/staffing provision to violate the constitutional directive enx:1ted by
the voters in Proposition 35.
The third item involves DOF"s proposed May budget revision for Calt:ral!l!s" capital
outlay support budget. In the Govemor"s May 2002 revision of his January budget, the
Governor recommended reducing Caltramt staffing levels by 379.5 personnel years (pys),
According to PECG, at a May 22, 2002, Assembly Budget subcommittee hearing, the DOF
proposed a larger cut in staffing of528.5 pys. However, DOF did not recommend reductions
of contracting out levels. According to PECG, these recommendations must be evaPll!ai~d in
light ofCaltram• 2002-03 projected workload of 112,921 pys, compared to a staffing lev~l in
the 2001-02 fiscal year of Ilil,804 pys. The agreement was for half of that increase in woddoid
to be allotted to staff, after subtracting 500 excluded positions, which amounts to a negotfat~d
increase in staffing of 308.75 pys for fiscal year 2002-03,
7Proposition 35 provides State agencies with flexibility in contracting for an-hitectunt-1;
engineering, and like services,
3

PECG argues that the Board agent incorrectly applied a totality of circumstances test to
determine that the State"s: conduct was insufficient to establish bad faith. 	Instead, PECG
asserts, the Board agent should have deemed the StaJte"s conduct to constitute a per se violation
of Dills Act section 3519(c).i To determine whether a party has violated Dills Act section
3519(c), PERB utilizes either a ""per se" or a ""totality of circumstances" 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. n43 (Stockftmi).) Some acts, such as an
outright refusal to bargain or a unilateral change in wages, hours or terms and conditions of
employment, have such potential to frustrate bargaining and to undermine the exclusivity o-f
the employee organization that they are unlawful without any determination of subjoctive bad
faith and are thus, a "per se" violation ofSe.ction 3519(c). (Pajaro Valley Unified School
District (1978) PERB Decision No. 51.)
It is difficult to find anything in these facts that manifest either an outright refusal to
bargain or a unilateral change. Morgenstemm"s: comments were merely responses to concerns
expressed by Assemblymember Cox and the Legislative Counsel over the consti1fr.nttii(l)]])l,Uify of
the contracting-out/staffing provision in the MOU. In his comments, Morgenstern did not
repudiate the agreement, but rather, reacted to legislative questions regarding the ill~ity of
that provision, stating that the State would "take another look at" that issue. He did not
specifically denounce the provision or state that he would not support passage of Senate Bill
(SB) Il213 in the Legislature. His concern was "to do the right thing." Morgenstern also did
-------------------------------------8Dills Act section 3519(c) provides:
It shall be unlawful for the state to do any of the following:
(c) Refuse or fail to meet and confer in good faith with a
recognized employee organization.
4

not say or in any way imply that PECG would be excluded from any reconsideration of the
contracting-out/staffing provision. Along the same lines, there was no evidence provided by
PECG that demonstrated that DOF was aware of the parties" contracting-out/staffing
arrangement when the DOF prepared the proposed May budget revision. In any event, both
Assembly and Senate committees ultimately rejected the proposed May budget revision and
SB ]-213 has been suspended by the Legislature.~
PECG argues that this case falls within the ambit of Placerville Union School District
(1978) PERB Decision No. 69 (Placerville) and its progeny involving egregious conduct that
per se violates Section 3519(c). In Placerville, the districit"s negotiator blatantly repudiated a
deal involving an organizational security clause, a clause he had previously negotiated with the
union. When the tentative agreement was submitted to the dis:f!rid"s board for ratification, the
distric1t"s negotiator recommended that the board approve the tentative agreement st:riwed of
that provision. The union was not afforded the opportunity to comment at the board meeting.
After the district board meeting, the district informed the union by letter ofits decisi«m without
an offer to negotiate the change. The facts in this case therefore are distinguishable from the
facts in Placerville.
This case may also be distinguished from Kem High School District (1998) PERB
Decision No. Il265, in which two union negotiators actively campaigned against the negotiated
tentative agreement One of the negotiators even wore a button saying "VOTE NO."
Morgms.rern"s statements to the press clearly did not rise to the level of repudiation of the
MOU.
~See www.leginfo.ca.gov. The Board takes judicial notice of the entry entitled Status
for SB ll213 dated December 9, 2002 indicating that SB 11213 was suspended by the
Legislature on November 30, 2002.
5

In Alhambra City and High School Districts (1986) PERB Decision No. 560
(Alhambra)~ the Board described the standard for a "per se" violation as follows:
Absent good cause, once a tentative agreement is reached, there is
an implication that both parties" negotiators will take the
agreement to their respective principals in a good faith effort to
secure ratification. (NLRB v. Electra Food Machinery (91~ Cir.
Il980) 621 F.2d 956 [104 LRRM 2806]; H.J. Heinz Co. v. NLRB
(1941) 311 U.S. 514 [7 LRRM 291].) While a tentative
agreement does not bind either side, it does imply that the
negotiators will not "torpedo" the proposed collective bargaining
agreement or undermine the process that has occurred. Absent
some extenuating circumstance, such as a discovered illegality of
a contract term, either side can lawfully refuse to reopen
negotiations pending ratification. (See, e.g., Wichita Eagle and
Beacon Publishing Company, Inc. (1976) 222 NLRB 742 [91
LRRM ]227].)
(Alhambra, at p. D4.)
It is clear that Morgenstem"s statements neither "torpedoed" the MOU nor undermined
the collective bargaining process, but rather suggested the reevaluation of a. provision with an
alleged constitutional impediment. From the two newspaper articles, the apparent basis for the
failure of SB D213 to proceed through the Legislature is the expressed concerns of
Assemblymember Cox, the Legislative Counsel, and the business interests who su~ed
Proposition 35. PECG has further neglected to provide evidence showing DOF~s knowledge
of the MOU contracting-out/staffmg provision and thus, any unlawful motive in suhrnmiitting the
proposed May budget revision to the Legislature. We therefore conclude that the Sta1te did not
commit a "per se" violation of Section 3519(c).
We now tum to the issue ofwhether the State violated Section 3519(c) when it violated
the parties' ground rules 20 and 23 and thus, engaged in "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 1n
6

accusation of surface bargaining, PERB will resolve the question of good faith by anal}OOng
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 School District (1982) PERB
Decision No. 275.)
The indicia of surface bargaining are many. Entering negotiations with a ""talk:e-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 ]92, ]94
[57 LRRM Il491], enf. 418 F.2d 736 [72 LRRM 2530].) 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 (Oakfan~.) Dilatory and evasive
tactics, including canceling meetings or failing to prepare for meetings, is evidence of bad
faith. 	(Oakland.) 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. ]249-S,)
Other factors that have been held to be indicia ofsmface bargaining include: 	(1)
negotiator's lack of authority which delays and thwarts the bargaining process (S~l:1wi1m); (2)
insistence on ground rules before negotiating substantive issues (San Ysidro School District
(1980) PERB Decision No. B4); and (3) reneging on tentative agreements the parties already
have made (Charter Oak Unified School District (1991) PERB Decision No. 873; S11©xr.kton;
Placerville).
Looking at the totality of the Sitat.e"s conduct throughout the bargaining process, we
find that PECG has provided insufficient evidence to show surface bargaining. As stat~d,
Morgemtem's statements comprised responses to legislative concerns over the alleged
7

constitutional infirmity of the contracting-out provision. His response was merely that the
State would reassess that provision. There is also no showing ofDOF staff knowledge of the
MOU contracting-out/staffing provision or of the conflict between that provision and the
proposed May budget revision. PECG did not provide any other evidence showing surface
bargaining as outlined above.
Even ifwe assumed that PECG did show that the State violated the ground rules, the
Board has held that repudiation of an agreement on a single issue is insufficient by itseffto
show bad faith. 	(Stooktoo, at p. 24, citing NLRB v. Advanced Business Forms Corp. (2mi Cir.
Il9'73) 474 F. 2d 457 [82 LRRM 216].) In Compton Community College District (1989) PERB
Decision No. 728, the Board held that while ground rules are comparable to a mandatory
subject of bargaining, reneging on ground rules is only one indicator of bad faith. 	Under the
totality of circumstances test, a single indicator ofbad faith alone does not establish a prima
facie case. (Oakland Unified School District (1996) PERB Decision No. Il]56, warning letter,
p. 3.) The factual allegations in this case therefore are insufficient to state a prima facie ~ase
ofbad faith bargaining in violation ofDills Act section 3519(c).
ORDER
The unfair practice charge in Case No. SA-CE-1349-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Member N eima joined in this Decision.
8

STATE OF CALIFORNIA (
PUBLIC EMPLOYMENT RELATIOONS BOARD
n lRegitmall office
lSm031 e l18th6Saf
na,,Cn95814l.74
.Iephon: ((916 3278386
fax ((916 3276377
JJuly 9, 2002
keriley $ttimpel asamsen, Esquire
Professional Engineers iin Califomia Gowemment
660 J Street: Suite 445
Sacramento, CA 95814
( GRAY DAVIS, Governor
Re: Professional Engineers in Calnfomia Gro,vemment v. State o1fCaliifumiia D,pt1tn1ent of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1349-S
DISMISSAL LETTER
Dear Ms. Rasmussen:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 3, 2002. The Professional Engineers in Calnfomia
Government alleges that the State of California (Department of Personnel Admiilm:i.swation)
violated the Ra11,h C. Dills Act (Dills Act)12by violating bargaining ground rules.
I indicated to you in my attached letter dated June 21, 2002, that the above-referenced charge
did not state a prim a 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 June 28, 2002, the charge would be dismissed,
In my letter ofJune 21,I cited the long established rule that a ground rule violation is merely
one indicia of bad faith that is to be considered under the totality of circumstances , Stockton
Unifi ed School District (1980) PERB Decision No. 143. I also explained that there were
insufficient facts presented to demonstrate that Respondent made an effort to "torpedo" the
agreement or actively campaign against it.
I received your amended charge on June 28, 2002. In that amended charge. you continue to
assert that Respondent's actions constitute a "per se" violation of the obligation to bargain in
good faith. However, without additional facts to support such a finding, I must dismiss this,
charge for the reasons given in my letter of June 21 i-
1 The DiUs Aet 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,
2 Onpage 4 of your amended charge you state "the Governor is not.iust f,iling to
support the agreement he reached with PECG on April 5, 2002 (in violation of the partie1,
ground rules»,. but he is actively campaigning against its ratification by the Legislature.',,
How,:Vli,r,, no additiomll facts are supplied to support this allegattiimi..

SA·CE-1349-S
July 9, 2002
Page 2
Right to Appeal
Pursuant to PERB Regulations, 	you may obtain a review of this dismissal o;f the charge by
filing an appeal to the Board itse1fwithin 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.
i
A document is considered ""filed" when actually received before the close ofbusiness (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 ofRegulation 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
ll031 ll8th 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 ofa statement in opposition within twenty (20) cafondar days
following the date of service 6.lfthe appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be ""served" upon all parties to the
proceedin~ and a ""~f 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 deliwered
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).)
PERB's Regulations are codified at California Code ofRegulation~, title 8, ~ection
31001 et seq.

SA-CE-1349-S
July9e2002
Pagel
.
Extremion of Tiime
(
A request b an extenon offtime, in whiich to ffiille atallswmmuent witth 1tlhLe Board itseif, must 1be
in writing and filed with the Board at tthe previously noted address. A request for am exretension
must be filed at least three (3) calendar days before tthe e,q,iiiratioo ofttlme time quire forr
fiiling the document. The request must indicate bood cause for and ifknowoac the posiuon of
each other party regarding the extension, and shall be ouped by proof0fam olfthe
request upon each party. (Regulaion 32132.)
Final Date
Ilf no appeal is filed within the specified time limits, the dismissal will become ffiinal when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
Bernard McMonigle
Regional Attorney
Attachment
cc: Howard Schwartz

_S_T_A_T_E_O_F_C_A_L_I_F_O_R_N_IA
___
/ (
~·
:
---------------
	-
------------
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacrammm 	Office
l
l0l'3
I I
H!illt
Street
s.;ramenlD, CA 958 14-41 74
Telephone: (916) 32
7-8386
IFax:
(916) 327-6377
June 21, 2002
Kelley Stimpel Rasmussen, Esquire
Professional Engineers
in
California Government
660 J Street, Suite 445
Sacramento,
CA
95814
Re: 	Professional Engineers
in
California Government v. State
of
California
~t
of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1349-S
WARNING LETTER
Dear Ms. Rasmussen:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB
or
Board) on June 3, 2002. The Professional Engineers
in
California
Go vernment alleges that the State
of
California (Departtment
of
Personnel
Am:n:niimni'S:tl.aittiion)
violated the Ralph
C.
Dills Act Q)ills Act:)4 by violating bargaining ground rules.
Your charge states the following. 	On April
5,
2002, PECO and the State reached
aglI1i~~ment
on
a tentative MOU for State Bargaining Unit 9. 	At the commencement
of
the
negottiianttiions
the
parties agreed to a set
of
ground rules. The ground rules state, in relevant part, that
both
parties agree "to recommend acceptance
of
the total agreement to the Legislature!"' and that
"[a]ll bargaining team members and staff for both parties shall consistently and without
exception support the agreement, both publicly and private, until its formal aJ>proval
or
rejection."
The terms
of
the MOU were recorded in Senate Bill
Il'.213
and submitted to the Leg;rusfature for
approval pursuant to Government Code 3517.5. The tentatively agreed MOU has not yet been
ratified by the Legislature.
Section 6
of
SB I 213 reflects an agreement by the parties concerning staffing at Caltran s,
Under the agreement, Caltrans will accomplish increases in capital outlay support workload
by
contracting out one-half or less
of
the difference between the workload over the previou s
year's staffing levels, after excluding specialized services.
Newspaper articles, attached to the request for injunctive relief, reflect criticism
of
the staffing
agreement by members
of
the business community. It has been alleged that the outside hil'ing
restrictions are a violation
of
Pr.oposition 35, which amended the state constitution in 2000
to
make it easier for state and local agencies to contract with private construction finns.
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.j(!Clrlb>.IDll~V-.

SA-CE-1349-S
June 21, 2002
Page2
The April 22it¥il L.A. Times reported that DP A Director Mary Morgenstern $1ta1led tthat Caltrans
is taking anotther look at the staffing agreement.
On April 231Kt the Legislative Counsel issued a letter to Anembly Republican Leadeir Dave Cox
in which it concluded that the staffing provision of SB 11213 ""would wiiolate Article XXII oftthe
California Constitution, as added by Proposition 35, to the extent that section woudd restrict the
authority of the Department of Transportation Ito contract for mchitectural ad ~ng
services."" Assemblyman Cox has been quoted as :sttatting, ""Our folks will not wte for iit,
because it undermines Proposition 35.""
On May 2Ilq• a Sacramento Bee political columnist reported that the Legislative C@llllllllSel had
issued an opinion that the staffing agreement was illegal. Morgenstern told him that he is
prepared to reopen negotiations. Morgenstern was quoted as saying ""We would like to do the
right thing and work out a contract thatt"s fair to them, but we cm''t obviously agree to anything
that would violate the will of the peopll«:).... We ca:mt"t agree to stulff thatt"s not legal.,,,,
According to information supplied by PECO, the capitol outlay support workload for 2002-
2003 is scheduled to increase to Ill,,921.5 personnel years (PY"s) from Ilil,804 PY"s in 2001-
2002. 	Approximately 500 ofthe 2002-2003 total is excluded specialized services. Thus the
capitol support outlay is scheduled to increase by 617.5 PY"s (1,117.5-500).
The recently released May revision of the State budget proposes to cut the Caltrans capitol
outlay support workload by 528.5 PY"s. According to PECO, this budget proposal contr~iicts
the negotiated formula. 	Under the negotiated formula the union would expect 308.75 PY"s to
be added to Caltrans. Instead, the Caltrans capitol outlay support staffing will be reduced.
On May 16th , a Senate subcommittee considered the Caltrans budget and rejected the 528.5 PY
reduction. Instead, it proposed to divide the cuts equally between staff and contracltiing out.
On May 22llq, an Assembly subcommittee also rejected the proposed reduction in Caltrans staff
and reduced contracting out by 500 PY"s. The two versions now go to conference commitwe,
In determining whether a party has violated the Dills Act section 3519(c), PERB utiili:zes eithtr
the "per se" or "totality of the conduct" test, depending on the specific conduct invollved 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 reque1t
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 1160; Qmn1
Joint Union High School District (1982) PERB Decision No. 196.)
The theory of this underlying unfair practice is that the employer has committed a per se
violation of the obligation to bargain by a unilateral change in the established ground run~§.. In
its unfair practice charge, PECG relies on a statement from State of California (DPA) to tl§§~ft
that a violatioo of ground rules is a per se violation,

SA-CE-B49-S
June 21, 2002
Page 3
Ground rule agreements represent a contractual obligation for
purposes of determining whether a unilateral change from them
constitutes a violation. (Stockton Unified Sc:hool District (1980)
PERB Decision No. !43)
However. a complete reading of State of California @PA) provides little support for PECG"s
theory of a violation. That case did not overrule PERB"s long established rule that a ground
rule violation is merely one indicia of bad faith that is to be considered under the "totality of
circumstances." Stockton USD~ supra.
A review of PERB case law reveals an early case in which the Board did find that a
negotiato1r"s failure to endorse and support a total tentative agreement when it was presented to
a school board for ratification, contrary to his agreement to do so, constituted a failure to meet
and negotiate in good faith. 	Placerville Union School District (1978) PERB Decision No. 69.
However, in Stockton the Board, citing NLRB v. Advanced Business Forms Corp. (]973) 474
F. 2d 457, stated (at page 24),
The Board affirms the hearing officeir"s finding that the parties
had reached an agreement on March 2 on ground rules and that
Crossett, the new District negotiator, reneged on that agreement.
The repudiation of an agreement on a single issue has been held,
by itself, not to manifest a lack of good faith. Therefore, the
Board will look at the "totality of circums:tt:ances;" to determine
whether the Districtt"s conduct indicated good faith negotizttillllg,...
Later, the Board reiterated that a violation of ground rules is but one indicia in a "tt<0lt!:mlliitty"'
analysis. In Compton Community College District (1989) PERB Decision No. TI28, the Board
adopted the AU"s determination,
PERB has held that negotiating "ground rules" is equivalent to a
mandatory subject of bargaining. Stockton Unified School
District, supra; Gonzalez Union High School District (1985)
PERB Decision No. 480. 	In other words, the ground rules are as
important as other matters to be negotiated. Accordingly,
violation of the ground rules must be viewed as reneging on an
agreement and is yet another indicia of bad faith bargaining.
Thus, ground rules are as important as other matters negotiated for the purpose of determining
whether there has been a bargaining violation. Therefore, reneging on ground rules may be
indicia when considering t!:he "totality of circumstances" ..
PECG appears to argue that a ground rule is more important than other bargaining topics; thflt
a violation of a ground rule is a per se violation. The case relied upon by PECG, is not a C!l$e

SA-CE-1349-S
June 21, 2002
Page 4
in which a ground rule established in the current round of negotiations was violated. Rather, in
State of California (DPA), the Board reviewed the record to determine whe·ther over a number
of years which included past negotiations, a past practice had been established on a matter
within scope, union release time. The Board found no violation.
In this case, a currently negotiated ground rule is arguably violated. Despite the early
Placerville USD decision~, the rules from Stockton and Compton appear to be applicable. 	A
ground rule violation is not a per se violation, rather it is one indicia to be considered.
PECG argues that there is either a per se violation or the actions of DP A and the G@v<emor are
sufficient to meet the totality test. Finding no per se violation, I considered tthe "totality of
circumstances" test.
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 o:r is merely
a legitimate position adamantly maintained." 	(Oakland Unified School District (1982) PERB
Decision No. 275.)
The indicia of surface bargaining are many. Entering negotiations with a '"112flhHitt-<mr--!eave-it"
attitude evidences a failure of the duty to bargain because it amounts to merely going through
the motions of negotiations. 	(General Electric Co. (11964) :nso NLRB Il92, :ll94 [57 LRRM
r4191], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling ofmeettings 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 CaJll'<OOling
meetings or failing to prepare for meetings is evidence of bad faith. 	(Oakland Unified School
District supra, PERB Decision No. 326.) Conditioning agreement on economic mat!trers 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. 11249-S.)
Other factors that have been held to be indicia of surface bargaining include: 	ne~tfOr's la~k
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. M3); insistence on ground rules before negotiating submntive
issues (San Ysidro School District (1980) PERB Decision No. ]34); and reneging on tentm:io/e
The Board has affirmed the rule of Placerville. In Kern High School District (1998)
PERB Decision No. 1265, the Board found that actions by two union negotiating team
members who were actively campaigning against a tentative agreement, constituted an ~ff~rt
to "torpedo" the ratification process and stated a prima facie case of bad faith. There hav~
been no facts demonstrated in the instant matter which demonstrates an effort 1!:o "to~do;; \ft~
agmement or actively campaign against it.

SA-CE-1349-S
June 21, 2002
Page 5
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra PERB Decision No. ]43;
Placerville Union School District (1978) PERB Decision No. 69).
Thus, even assuming that PECG has established that the employer reneged on ground rules by
not supporting the total agreement, without other indicia of bad faith there is no violation.
Under the totality of circumstances test, a single indicia of bad faith does not establish a prim a
facie case. Oakland USD (1996) PERB Decision No. Il]56. (In Oakland, the single indicia was
reneging on a tentative agreement)
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 correct the defidencies
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
the ,, contain all
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 the right
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be f led PERB. Ifl do not receive an
amended charge or withdrawal from you before June 28, 2oom,:n shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely
amwl
Q Mduisb
, kP	Bernard McMonigle
Regional Attorney
BMC