State of California (Department of Youth Authority) (PERB 1526S)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES
ASSOCIATION, LOCAL 1000, SEIU, AFL-CIO,
CLC,

Charging Party, Case No. SA-CE-1294-S

v. PERB Decision No. 1526-S

STATE OF CALIFORNIA (DEPARTMENT OF May 20, 2003

YOUTH AUTHORITY),

Respondent.

Appearance: California State Employees Association by Patrick Clark, Senior Labor Relations
Representative, for California State Employees Association, Local 1000, SEIU, AFL-CIO,
CLC.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California State Employees Association, Local 1000, SEIU, AFL-
CIO, CLC (CSEA) of a Board agent’s dismissal and deferral to arbitration (attached) of its
unfair practice charge. The charge alleged that the State of California (Department of Youth

Authority) violated Section 3519 of the Ralph C. Dills Act (Dills Act)' by failing to bargain

over a decision and impact of changes in teacher assignments.

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

After reviewing the entire record in this matter, including the charge and CSEA's
appeal, the Board finds the warning and dismissal letters to be free of prejudicial error and
adopts them as the decision of the Board itself consistent with the discussion below.
DISCUSSION
The Board agent dismissed CSEA's unfair practice charge on July 26, 2002, and
deferred the charge to arbitration. CSEA argues on appeal that the dismissal was improper
because the issues presented in the charge have "already been arbitrated and the union
prevailed." CSEA argues that the issue here is "not a prearbitral situation but a post-arbitral
issue of compliance."
In essence, CSEA seeks to have the Board enforce its arbitration award. However, it is
well-settled that the Board does not have jurisdiction to enforce agreements between the parties
unless the alleged violations also constitute an unfair practice. (Dills Act sec. 3514.5(b)"
.)
This necessarily includes the enforcement of settlement agreements and arbitration decisions.
(See State of California Department of Developmental Services) (1996) PERB Decision
No. 1150-S.) Of course, this does not mean that a party may ignore an arbitration decision
with impunity. Other avenues exist for CSEA to enforce its arbitration award.
Since CSEA admits that the arbitration process has concluded and repugnanty review
has not been sought before PERB, there is no further need to defer this charge to arbitration.
Instead, the charge must be dismissed.
Section 3514.5(b) states, in pertinent part, that:
(b) The board shall not have authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation of such an agreement that would not
also constitute an unfair practice under this chapter.
2

ORDER
The unfair practice charge and complaint in Case No. SA-CE-1294-S is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
W

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PE.R.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
July 26, 2002
Patrick Clark, Representative
Bill Kelly, Representative
California State Employees Association
1 108 O Street
Sacramento, CA 95814
Re: 	California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. State of	SEID,
California (Department of Youth Authority)
Unfair Practice Charge No. SA-CE-1294-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Mr. Clark and Mr. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations	Employrnent
Board (PERB or Board) on May 2, 2001. The California State Employees Association, Local
1000, SEIU, AFL-CIO, CLC alleges that the State of California (Department of Youth	SEID,
Authority) violated the Ralph C. Dills Act (Dills Act)' by failing to bargain over the decision
and impact of changes in teacher assignments.
This charge was deferred and dismissed on July 27, 2001, in accordance with the Board's
precedent in Lake Elsinore School District (1987) PERB Decision No. 646. That dismissal
was appealed by CSEA to the Board itself. In State of California (Department of Youth
Authority) PERB Decision No. 1483-S, the Board remanded this charge to the General
Counsel's office for further processing consistent with its decision in State of California
Department of Food and Agriculture) (2002) PERB Decision No. 1473-S.
I indicated in the attached letter dated July 11, 2002, that this charge was subject to deferral to
arbitration. You were advised that if there were any factual inaccuracies or additional facts
which would correct the deficiencies explained in that letter, the charge should be amended.
You were further advised that unless the charge was amended or withdrawn prior to July 18,
2002, it would be deferred to arbitration. That letter erroneously stated that the case would
then be placed in abeyance. On July 25, I called your office and left a voicemail message for
Mr. Clark after being told that Mr. Kelly had retired. The message stated that the previous
letter contained an error and that the case would actually be dismissed. The message also
invited Mr. Clark to call me if he had any questions.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my July 1 1 letter.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
.,._

SA-CE-1294-S
July 26, 2002
Page 2
As I explained in the attached letter, Government Code section 3514.5(a) and PERB
Regulation 32620(b)(5) require a Board agent to defer a charge where the dispute is subject to
final and binding arbitration pursuant to a collective bargaining agreement. (Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81; State of California (Department of
Food and Agriculture) (2002) PERB Decision No. 1473-S.) The charge alleges that the
employer made a unilateral change in job duties. This conduct is covered by the parties'
collective bargaining agreement, the Respondent has agreed to waive any procedural defenses,
and there is no evidence that the dispute arises in other than a stable collective bargaining
environment. Accordingly, the charge must be dismissed and deferred to arbitration.
Following the arbitration of this matter, the Charging Party may seek a repugnanty review by
PERB of the arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los
Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-81a.)'
Right to Appeal
Pursuant to PERB Regulations," you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
Pursuant to Government Code section 3514.5(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
....

SA-CE-1294-S
July 26, 2002
Page 3
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Bernard McMonigle
Regional Attorney
Attachment
cc: Barrett W. McInerney, Labor Relations Counsel
(
,._
Counse. l 	I
('	
\	
~	
·;--.- 	:	
1\
·.
<)	
,,,	
)~	
.
"--'=	
__
A,

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
July 11, 2002
Bill Kelly, Representative
California State Employees Association
1108 O Street
Sacramento, CA 95814
Re: 	California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. State of
California (Department of Youth Authority)
Unfair Practice Charge No. SA-CE-1294-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Mr. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 2, 2001. The California State Employees Association, Local
1000, SEIU, AFL-CIO, CLC alleges that the State of California (Department of Youth
Authority) violated the Ralph C. Dills Act (Dills Act)' by failing to bargain over the decision
and impact of changes in teacher assignments.
This charge was deferred and dismissed on July 27, 2001, in accordance with the Board's
precedent in Lake Elsinore School District (1987) PERB Decision No. 646. That dismissal
was appealed by CSEA to the Board itself. In State of California (Department of Youth
Authority) PERB Decision No. 1483-S, the Board remanded this charge to the General
Counsel's office for further processing consistent with its decision in State of California
Department of Food and Agriculture) (2002) PERB Decision No. 1473-S.
The charge reveals the following. CSEA and the Employer have had an ongoing dispute with
regard to a new policy requiring teachers and teacher assistants to perform certain job duties in
the celled living units at the Stark Youth Correctional Facility. The dispute was the subject of
an unfair practice charge that was dismissed and deferred to the arbitration process in August
2000. CSEA filed a safety grievance and the matter was eventually submitted to an arbitrator
who issued a binding award that was amended January 9, 2001. The arbitrator ordered a return
to the status quo, the establishment of a Joint Union/Management Health and Safety
Committee and that the parties "meet...before any changes are made in the teachers' working
conditions." The Superior Court for the County of San Bernardino confirmed the award.
The parties met regarding the issue of living-unit duty on February 20-21 and April 9, 2001.
According to the charge, the Employer brought a mediator to the April 9 meeting; CSEA took
the position that the parties were not at impasse. No agreement was reached.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1294-S
July 11, 2002
Page 2
CSEA contends that the Employer has made a firm decision and intends to implement its last
proposal, allowing it to take actions similar to those intended for the summer of 2000.
According to CSEA, in this manner the Employer failed to meet its obligation to bargain.
The teachers at the youth facility are in state bargaining unit 3, teacher assistants are in unit 20,
both represented by CSEA. Both collective bargaining agreements, at Article 10, commit the
Employer to providing a safe working environment. Both contracts contain an entire
agreement article that describes the employer's obligation to bargain on matters not contained
in the agreement, and mandates that a dispute over the applicability of the article be referred to
binding arbitration. Both contracts have grievance procedures that end in binding arbitration.
Based on these facts and Dills Act section 3514.5, this charge must be deferred to arbitration
under the MOU.
Section 3514.5(a) of the Dills Act states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the collective bargaining] agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, the Board
explained that:
While there is no statutory deferral requirement imposed on the
National Labor Relations Board (hereafter NLRB), that agency
has voluntarily adopted such a policy both with regard to post-
arbitral and pre-arbitral award situations." EERA
section 3541.5(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.
It is appropriate, therefore, to look for guidance to the private
sector.' [Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
Although Dry Creek was decided under the Educational Employment Relations Act the NLRB
deferral standard has also been applied to the Dills Act. (State of California (Department of
Food and Agriculture) (2002) PERB Decision No. 1473-S.)
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent cases, the
National Labor Relations Board articulated standards under which deferral to the contractual
grievance procedure is appropriate in prearbitral situations. These requirements are: (1) the
Subsequent events and allegations are contained in Unfair Practice Charge No. 1315-S.
The Educational Employment Relations Act is codified at Government Code section
3540 et seq.
,._

SA-CE-1294-S
July 11, 2002
Page 3
dispute must arise within a stable collective bargaining relationship where there is no enmity
by the respondent toward the charging party; (2) the respondent must be ready and willing to
proceed to arbitration and must waive contract-based procedural defenses; and (3) the contract
and its meaning must lie at the center of the dispute.
These standards are met with respect to this case. First, no evidence has been produced to
indicate that the parties are not operating within a stable collective bargaining relationship.
Second, by the attached letter from its representative, Barrett McInerney, dated July 1 1, 2002,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the employer failed to bargain
over additional duties and work location for teaching staff is arguably prohibited by the entire
agreement article. The allegation that the employer failed to provide a safe work environment
is arguably prohibited by the health and safety article of the respective bargaining unit
agreements.
Accordingly, this charge must be deferred to arbitration and will be placed in abeyance until
such time as the arbitration process has concluded. Following the arbitration of this matter, the
charge will be dismissed unless the Charging Party seeks a repugnanty review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles
Unified School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School
District, supra.)
If there are any factual inaccuracies in this letter or any additional facts that would require a
different conclusion than the one 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 be served on the
Respondent and the original proof of service filed with PERB.
If I do not receive an amended charge or withdrawal from you before July 18, 2002, I shall
place your charge in abeyance. If you have any questions, please call me at the above
telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
Attachment
k.
~	
fl
-~	
Q 	'
~~----
, . 	C	
~