State of California (Department of Parks and Recreation) (PERB 1562S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY
EMPLOYEES,

Charging Party, Case No. SA-CE-1356-S

Vv. PERB Decision No. 1562-S

STATE OF CALIFORNIA (DEPARTMENT OF December 8, 2003

PARKS & RECREATION),

Respondent.

Appearance: Linda M. Kelly, Legal Counsel, for California Union of Safety Employees.
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 Union of Safety Employees (CAUSE) of a Board agent's
dismissal (attached) of its unfair practice charge. The charge alleged that the State of
California (Department of Parks & Recreation) (State) violated section 3519(b) and (c) of the
Ralph C. Dills Act (Dills Act)’ by unilaterally changing the terms and conditions of

employment of lifeguards through the implementation of a new aquatic safety policy.

'The Dills Act is codified at Government Code section 3512 et seq. Section 3519
states, in part:

It shall be unlawful for the state to do any of the following:

(b) Deny to employee organizations rights guaranteed to them by
this chapter.

(c) Refuse or fail to meet and confer in good faith with a
recognized employee organization.

The Board has reviewed the entire record in this case, including the unfair practice
charge with attachments, the warning and dismissal letters and CAUSE's appeal. The Board
finds the Board agent's dismissal letter to be free from prejudicial error and adopts it as the
decision
of
the Board itself subject to the discussion below.
DISCUSSION
In its appeal, CAUSE argues that the State's unilateral implementation
of
a new aquatic
safety policy constitutes a separate and distinct violation from the State's refusal to negotiate
the changes. There is nothing in the record indicating that this is the case. Accordingly, the
Board does not agree that the alleged violations are separate and distinct. The State's
unilateral implementation
of
the aquatic policy would only constitute a violation
of
Dills Act
section 3519(b) and (c),
if
the parties' memorandum
of
understanding required that the State
first negotiate the changes. However, this issue is precisely the one that both parties agree is
properly deferred to arbitration. As this issue will be submitted to arbitration, dismissal and
deferral
of
this charge is required. (State
of
California (Department
of
Food and Agriculture)
(2002) PERB Decision No. 1473-S.)
ORDER
The unfair practice charge in Case No. SA-CE-1356-S is hereby DISMISSED AND
DEFERRED TO ARBITRATION.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA r
GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
August 16, 2002
Linda Kelly, Esquire
California Union
of
Safety Employees
2029 H Street
Sacramento, CA 95814
Re: 	California Union
of
Safety Employees
v.
State
of
California (Department
of
Parks &
Recreation)
Unfair Practice Charge No. SA-CE-1356-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Ms. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 1, 2002. The California Union
of
Safety Employees (CAUSE)
alleges that the State
of
California (Department
of
Parks & Recreation) violated the Ralph
C.
Dills Act (Dills Act) 1
by unilaterally changing the terms and conditions
of
employment
of
lifeguards through the implementation
of
a new aquatic safety policy.
I indicated in the attached letter dated July 25, 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 August
5,
2002, it would be deferred to arbitration and dismissed. Your request for an extension
of
time
to August 16, 2002 was granted.
I have not received either an amended charge or a request for withdrawal. 	On August 15,
2002, you left a voice mail message for me indicating that the charge would not be amended.
Therefore, I am dismissing the charge based on the facts and reasons contained in my July 25,
2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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
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.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1356-S
August 16, 2002
Page 2
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
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Regulation 32132.)

SA-CE-1356-S
August 16, 2002
Page 3
Final Date
( (
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
ByL~
Les Chisholm
Regional Director
Attachment
cc: 	K. William Curtis

STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
( 	GRAY
DA
VIS, Governor
July 25, 2002
Linda Kelly, Esquire
California Union
of
Safety Employees
2029 H Street
Sacramento, CA 95814
Re: 	California Union
of
Safety Employees
v.
State
of
California (Department
of
Parks
&
Recreation)
Unfair Practice Charge No. SA-CE-1356-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Ms. Kelly:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 1, 2002. The California Union
of
Safety Employees (CAUSE)
alleges that the State
of
California (Department
of
Parks & Recreation) (State or DPR) violated
the Ralph C. Dills Act (Dills Act) 1
by
unilaterally changing the terms and conditions
of
employment
of
lifeguards through the implementation
of
a new aquatic safety policy.
Investigation
of
the charge revealed the following information.2 CAUSE is the exclusive
representative
of
State Bargaining Unit 7 - Protective Services and Public Safety, including
lifeguards. CAUSE and the State are parties to a memorandum
of
understanding (MOU) that
is effective July 1, 2001 through July 2, 2003. The MOU includes a grievance procedure that
ends in binding arbitration. The MOU also provides, in Section 13.3, for a Physical FitnessIncentive Program.
The "Entire Agreement" provision
of
the MOU, found at Section 20.1, reads as follows:
A. This Contract sets forth the full and entire understanding
of
the
parties regarding the matters contained herein, and any other prior
or existing understanding or agreement by the parties, whether
formal or informal, regarding any such matters are hereby
superseded. Except as provided in this Contract, it is agreed and
understood that each party to this Contract voluntarily waives its
right to negotiate with respect to any matter raised in negotiations
or covered in this Contract, for the duration
of
the Contract.
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.perb.ca.gov.
2 I discussed these charge allegations with Labor Relations Representative Jimmy
Southard and with you by telephone on July 18, 2002 and July 19, 2002, respectively.

SA-CE-1356-S
July 25, 2002
Page 2
(
With respect to other matters within the scope
of
negotiations,
negotiations may be required during the term
of
this Contract as
provided in Subsection (B) below.
B. The parties agree that the provisions
of
this Subsection shall
apply only to matters which are not covered in this Contract.
The parties recognize that during the term
of
this Contract it may
be necessary for the State to make changes in areas within the
scope
of
negotiations. Where the State finds it necessary to make
such changes, the State shall notify CAUSE
of
the proposed
change thirty (30) days prior to its proposed implementation.
The parties shall undertake negotiations regarding the impact
of
such changes on the employees in Unit
7,
when all three (3)
of
the
following exists:
1.
Where such changes would affect the working conditions
of
a
majority
of
Unit 7 employees by classification in a department.
2. Where the subject matter
of
the change is within the scope
of
representation pursuant to the Ralph
C.
Dills Act.
3. Where CAUSE requests to negotiate with the State.
Any agreement resulting from such negotiations shall be executed
in writing and shall become an addendum to this Contract.
If
the
parties are in disagreement as to whether a proposed change is
subject to this Subsection, such disagreement may be submitted to
the arbitration procedure for resolution. The arbitrator's decision
shall be binding. In the event negotiations on the proposed change
are undertaken, any impasse which arises may be submitted to
mediation pursuant to Section 3518
of
the Ralph C. Dills Act.
In February 2002, DPR gave CAUSE notice
of
its intent to implement a new aquatic safety
policy and offered, in accordance with Section 20.1.B
of
the MOU, to meet and confer over the
impact
of
the changes that new policy would institute. CAUSE declined to agree to negotiate
only as to impact, contending that the new policy made changes to the existing provisions
of
Section 13.3 and arguing that the new policy could only be implemented
if
agreed to
by
CAUSE.3
CAUSE and the State agreed that the dispute should be submitted to arbitration under the
provisions
of
Section 20.l.B for a determination "as to whether [the] proposed change is
subject to [that] Subsection." CAUSE filed a grievance accordingly, the State accepted the
grievance, and the matter is scheduled for hearing by an arbitrator later this year. CAUSE also
3 This argument also relies on the language of Section 20.1.A.

SA-CE-1356-S
July 25, 2002
Page 3
requested that the aquatic safety policy at issue not be implemented pending resolution
of
the
grievance, but DPR implemented the new policy on May
1,
2002.
The instant charge focuses on the May 1 implementation, the new policy's alleged departure
from the terms and conditions set forth in Section 13.3
of
the MOU, and the contention that the
State's conduct interferes with CAUSE's right to represent employees in Unit
7.
Discussion
Based on these facts and Dills Act section 3514.5, this charge must be deferred to arbitration
under the MOU and dismissed in accordance with PERB Regulation 32620(b)(5).
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-8la, 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.2 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 Act4
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 83 7 [77 LRRM I 931] 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
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
4 The Educational Employment Relations Act is codified at Government Code section
3540 et seq.

SA-CE-1356-S
July 25, 2002
Page 4
(
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, Labor Relations Counsel
K.
William
Curtis, dated July 24, 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
DPR changed terms and conditions
of
employment
of
lifeguards through the implementation of
an aquatic safety policy without negotiating such changes with CAUSE directly involves an
interpretation
of
Sections 13.3 and 20.1
of
the MOU.
Accordingly, this charge must be deferred to arbitration and will be dismissed. Following the
arbitration
of
this matter, the Charging Party may seek a repugnancy 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.)5
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 beprepared 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
I do
not receive an amended charge or withdrawal from you before August 5, 2002, I shall dismiss
your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Regional Director
Attachment
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.