State of California (Department of Corrections and Rehabilitation) (PERB 1961S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STEVEN
R.
SWAN,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
Case No. SA-CE-1663-S
PERB Decision No. 	1961-S
June 17, 2008
Appearances: 	Law Office
of
Steven B. Bassoff by Steven B. Bassoff, Attorney, for Steven
R.
Swan; State
of
California (Department
of
Personnel Administration) by Amir H. Ameri, Legal
Counsel, for State
of
California (Department
of
Corrections & Rehabilitation).
Before Neuwald, Chair; Wesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case comes before the Public Employment
Relations Board (PERB or Board) on appeal by Steven R. Swan (Swan)
of
a Board agent's
dismissal (attached)
of
an unfair practice charge. 	The amended charge alleged that the State
of
California (Department
of
Corrections & Rehabilitation) (State) violated the Ralph
C.
Dills Act
(Dills Act) 1 by denying Swan's bids for assignments at a private hospital pursuant to the post
and bid procedures contained in an agreement between the State and the California
Correctional Peace Officers' Association, the exclusive representative
of
Swan's bargaining
unit. 	Swan alleged that the State's conduct violated section 3519(a)
of
the Dills Act.
The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charge, the State's position statement, the Board agent's
warning and dismissal letters, Swan's appeal and the State's opposition thereto. 	Based on this
1The Dills Act is codified at Government Code section 3512 et seq. 	Unless otherwise
indicated, all statutory references herein are to the Government Code.

review, the Board adopts the Board agent's warning and dismissal letters as the decision of the
Board itself, as supplemented by the discussion below.
On appeal, the State asserts for the first time that the charge was not timely filed
because Swan knew in 2004 that Queen of the Valley Medical Center (QVMC) did not want
him assigned to positions at its facility and therefore his subsequent bids for assignments at
QVMC would be denied. Dills Act section 3514.5(a)(l) prohibits PERB from issuing a
complaint with respect to "any charge based upon an alleged unfair practice occurring more
than six months prior to the filing of the charge." The limitations period begins to run once the
charging party knows, or should have known, of the conduct underlying the charge. 	(Gavilan
Joint Community College District ( 1996) PERB Decision No. 1177.) A charging party bears
the burden of demonstrating that the charge is timely filed. 	(State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.)
Swan has met that burden. The original charge alleged that the State violated the Dills
Act by denying Swan's bid requests on January 15, 2008. The charge was filed on
February 28, 2008, well within six months after the State denied Swan's bid. Further, the
charge alleges no facts indicating Swan knew, or should have known, before January 15, 2008,
that the State would reject his bid for assignment at QVMC. 	Accordingly, the charge was
timely filed.
ORDER
The unfair practice charge in Case No. SA-CE-1663-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Neuwald and Member Wesley joined in this Decision.
2

STATE OF CALIFORNIA 	r	
c·,
==============='<	
~==============='-
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-83
83
Fax: (916) 327-6377
April 2, 2008
Steven B. Bassoff, Attorney
Law Office
of
Steven
Bassoff
1220 S Street, Ste. 100
Sacramento, CA 95814-7138
Re: 	Steven R. Swan v. State
of
California (Department
of
Corrections & Rehabilitation)
Unfair Practice Charge No. SA-CE-1663-S
DISMISSAL LETTER
Dear Mr. Bassoff:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2008. 	Steven R. Swan (Charging Party) alleges that
the State
of
California (Department
of
Corrections & Rehabilitation) (State or CDCR) violated
the Ralph C. Dills Act (Dills Act or Act)1 by denying him an assignment for which he
submitted a bid.
In the attached Warning Letter dated March 17, 2008, Charging Party was informed that the
above-referenced charge did not state a prima facie case. Charging Party was advised that,
if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge could be amended. 	Charging Party was further advised that,
unless the charge was amended to state a prima facie case or withdrawn prior to March 27,
2008, the charge would be dismissed.
On March 26, 2008, Charging Party filed a First Amended Charge with PERB.
The Original Charge and Warning Letter
The statement
of
the original charge consisted in its entirety
of
the following:
Steven R. Swan is employed as a correctional officer by the
California Department
of
Corrections and Rehabilitation (CDCR)
at the California Medical Facility (CMF) in Vacaville, California.
Swan meets all the eligibility requirements for the personnel
preferred post assignments (PPP A) procedure. 	Under the PPP A
procedure, correctional officers bid for assignments within CMF
on the basis
of
seniority. The assignments were to begin on
February 11, 2008. 	Bid sheets were due on January 11, 2008 and
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.

SA-CE-1663-S
April 2, 2008
Page2 
Swan submitted bids on that day. 	The first 10 PPPAs for which
Swan bid consisted
of
either being assigned to Queen
of
the
Valley Medical Center (QVMC) at Napa, California or serving as
a community hospital officer that required working at QVMC.
Because
of
his seniority, Swan was entitled to at least one
of
the10
PPP As for which he submitted bids. However, on January 15,
2008, Swan was notified by a CMF personnel assistant lieutenant
under the direction
of
the employment relations officer that he
"may not bid for any position" at QVMC or any community
hospital officer position, as these positions require staff to work
at QVMC. 8
of
the
10
PPP As Swan bid on were community
hospital officer positions, and no other bids were made by any
other correctional officer for five
of
these positions that were
currently vacant on January 15, 2008. Swan was advised that the
reason he was not assigned to any
of
the PPP As in question was
because QVMC did not want him assigned to these positions.
CDCR is interfering with and denying Swan employment rights
guaranteed under the Dills Act by following QVMC's direction
and refusing to [award] Swan one
of
the PPP As for which he
submitted bids and was eligible to receive. Swan seeks to be
assigned to one
of
the positions for which he submitted his bid
and also be awarded any lost overtime that he would have
received from that position for the period February 11, 2008.
As discussed more fully therein, the Warning Letter concluded that the charge as written failed
to state a prima facie interference violation as the charge failed to demonstrate that CDCR had
interfered with any rights granted to Charging Party by the Dills Act. In addition, the Warning
Letter concluded that the charge failed to demonstrate that Charging Party engaged in
protected activity prior to the denial
of
his PPPA bids, or that CDCR had knowledge
of
such
activity, or that CDCR took the complained-of actions because
of
any prior protected activity
by Charging Party.
First Amended Charge
The statement
of
the charge, as amended, reads in its entirety as follows:
PURSUANT TO GOVERNMENT CODE SECTION 3517, THE
CALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION (CDCR) AT THE CALIFORNIA
MEDICAL FACILITY (CMF) INV ACAVILLE, CALIFORNIA
REACHED AN AGREEMENT IN MID-DECEMBER 2007
WITH THE LOCAL CHAPTER OF THE CALIFORIA
CORRECTIONAL PEACE OFFICERS ASSOCIATION
(CCPOA) ON THE PROCEDURE FOR THE 2008
PERSONNEL PREFERRED POST ASSIGNMENT PROCESS

SA-CE-1663-S
April 2, 2008
Page 3
(PPP A). 	GENERALLY, THE PROCESS AW ARDS JOB
ASSIGNMENTS BASED ON SENIORITY. 	ALL
CORRECTIONAL OFFICERS WERE REQUIRED TO
SUBMIT COMPLETED PPP A FORMS (BID SHEETS) TO
THE CMF PERSONNEL ASSIGNMENT OFFICE
BY
JANUARY 11, 2008. 	OFFICER SWAN HAS
ARIGHT
GUARANTEED UNDER THE DILLS ACT TO PARTICIPATE
IN ALL AGREEMENTS BETWEEN CMF AND CCPOA,
INCLUDING THE 2008 PPP A PROCESS, WITHOUT
DISCRIMINATION FROM CMF AND WITHOUT
INTERFERENCE FROM CMF. 	SWAN ALSO HAS THE
RIGHT TO HA VE HIS BID SHEET CONSIDERED IN THE
SAME MANNER AS ALL [OTHER] CORRECTIONAL
OFFICERS UNDER THE AGREED UPON PPPA PROCESS.
SWAN SUBMITTED HIS BID SHEET
ON)ANUARY
11,
2008. 	CMF HAD FULL KNOWLEDGE OF SWAN'S
PAR TIC IP ATION IN THE PPP A PROCESS AS OF THAT
DAY. 	ON JANUARY 15, 2008, SWAN WAS NOTIFIED BY A
CMF PERSONNEL [ASSISTANT] LIEUTENANT UNDER
THE DIRECTION OF THE CMF EMPLOYMENT
RELATIONS OFFICER THAT HE "MAY NOT BID FOR ANY
POSITION" AT THE QUEEN OF THE VALLEY MEDICAL
CENTER (QVMC) AT NAPA, CALIFORNIA OR ANY
COMMUNITY HOSPITAL OFFICER POSITIONS. 	BY
PROHIBITING SWAN FROM BIDDING FOR ANY POSITION
AT QVMC OR ANY COMMUNITY HOSPITAL OFFICER
POSITION, CMF DICSCRIMINATED AGAINST SWAN AND
INTERFERED WITH HIS RIGHT TO PARTICIPATE IN THE
AGREED UPON PPPA PROCESS. 	CMF ENGAGED IN THIS
CONDUCT BECAUSE SWAN EXERCISED HIS RIGHTS
UNDER THE DILLS ACT BY SUBMITTING A BID [SHEET]
WITH ASSIGNMENTS THAT HE WAS ELIGIBLE FOR
UNDER THE AGREED UPON PPPA PROCESS. 	SWAN
SEEKS TO [HA VE HIS] BID [SHEET] REVIEWED AND BE
ASSIGNED TO ONE OF THE POSITIONS AT QVMC OR A
COMMUNITY HOSPITAL OFFICER POSITION FOR
[WHICH] HE IS ELIGIBLE AND ALSO BE A WARDED ANY
LOST OVERTIME THAT HE WOULD HAVE RECEIVED
FROM THOSE POSITIONS FOR THE PERIOD [BEGINNING]
FEBRUARY 11, 2008.
(Emphasis in original.)

SA-CE-1663-S
April 2, 2008
Page 4
Discussion
Though Charging Party attempts to plead his charge as an interference and/or discrimination
case, the gravamen
of
the charge is explicitly a contention that CDCR violated a provision
of
an agreement between the State and Charging Party's exclusive representative, the California
Correctional Peace Officers Association. The Board, however, does not have authority, under
Government Code section 3514.5(b), "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 the Dills Act. Artful pleading cannot overcome
this limitation on PERB's jurisdiction.
In this case, the amended charge still fails to state an independent unfair practice under either
an interference or discrimination theory. The interference theory is grounded in the
unsupported legal conclusion that the Dills Act protects an employee's right to "participate in
all agreements" between the State employer and an exclusive representative.2 Given that the
charge fails to allege sufficient facts or legal authority for the alleged interference violation,
the allegation must be dismissed. (See, e.g., State
of
California (Department
of
Forestry &
Fire Protection) (2004) PERB Decision No. 1690-S.)
The allegation
of
a discrimination violation is grounded in the circular reasoning that Charging
Party was denied assignments under the PPP A process because he bid on such assignments. In
addition to the logical problems with this theory, the charge fails to support the assertion that
submitting a bid on work assignments is itself protected activity under the Dills Act. 	Thus, this
allegation also fails to state a prima facie violation. (State
of
California (Department
of
Forestry & Fire Protection), supra, PERB Decision No. 1690-S; Charter Oak Unified School
District (1991) PERB Decision No. 873.)
Conclusion
Therefore, the charge is dismissed based on the facts and reasons set forth above and in the
March 17, 2008 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 3 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.
2 The Board has held that factually unsupported legal conclusions in a charge need not
be accepted as true. (Charter Oak Unified School District (1991) PERB Decision No. 873.)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1663-S
April 2, 2008
Page 5
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof
of
service, in the U.S. mail. 	(Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof of
service
of
the
request upon each party. 	(Regulation 32132.)

SA-CE-1663-S
April 2, 2008
Page 6
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 	L	
~
Les Chisholm
Division Chief
Attachment
cc: 	Amir H. Ameri

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 17, 2008
Steven B. Bassoff, Attorney
Law
Office
of
Steven Basso
ff
1220 S Street, Ste. 100
Sacramento, CA 95814-7138
Re: 	Steven R. Swan v. State
of
California (Department
of
Corrections & Rehabilitation)
Unfair Practice Charge No. SA-CE-1663-S
WARNING LETTER
Dear Mr. Basso ff:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2008. Steven R. Swan alleges that the State
of
California (Department
of
Corrections & Rehabilitation) violated the Ralph C. Dills
Act
(Dills
Act or Act) 1 by denying him an assignment for which he submitted a bid.
The statement
of
the charge consists in its entirety
of
the following:
Steven R. Swan is employed as a correctional officer by the
California Department
of
Corrections and Rehabilitation (CDCR)
at the California Medical Facility (CMF) in Vacaville, California.
Swan meets all the eligibility requirements for the personnel
preferred post assignments (PPP A) procedure. Under the PPP A
procedure, correctional officers bid for assignments within CMF
on the basis
of
seniority. The assignments were to begin on
February 11, 2008. Bid sheets were due on January 11, 2008 and
Swan submitted bids on that day. The first 10 PPP As for which
Swan bid consisted
of
either being assigned to Queen
of
the
Valley Medical Center (QVMC) at Napa, California or serving as
a community hospital officer that required working at QVMC.
Because
of
his seniority, Swan was entitled to at least one
of
the
10 PPPAs for which he submitted bids. However, on January 15,
2008, Swan was notified by a CMF personnel assistant lieutenant
under the direction
of
the employment relations officer that he
"may not bid for any position" at QVMC or any community
hospital officer position, as these positions require staff to work
at QVMC. 8
of
the 10 PPPAs Swan bid on were community
hospital officer positions, and no other bids were made by any
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.

SA-CE-1663-S
March 17, 2008
Page 2
other correctional officer for five
of
these positions that were
currently vacant on January 15, 2008. Swan was advised that the
reason he was not assigned to any
of
the PPPAs in question was
because QVMC did not want him assigned to these positions.
CDCR is interfering with and denying Swan employment rights
guaranteed under the Dills Act by following QVMC's direction
and refusing to [award] Swan one
of
the PPPAs for which he
submitted bids and was eligible to receive. 	Swan seeks to be
assigned to one
of
the positions for which he submitted his bid
and also be awarded any lost overtime that he would have
received from that position for the period February 11, 2008.
Discussion
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. 	(State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charge alleges that CDCR
is
interfering with and denying rights granted by the Dills Act.
The test for whether a respondent has interfered with the rights
of
employees under the Dills
Act does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The Board described the standard as follows:
[I]n order to establish a prima facie case
of
unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under [the Act].
(State
of
California (Department
of
Developmental Services) (1983) PERB Decision No. 344-
S, citing Carlsbad Unified School District (1979) PERB Decision No. 89; Service Employees
International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
Under the above-described test, a violation may only be found
if
the Dills Act provides the
claimed rights. (See, for example, Regents
of
the University
of
California (2006) PERB
Decision No. 1804-H.)
The instant charge fails to state an interference violation under the standards described above.
While the charge alleges, as a conclusion, that CDCR denied Swan rights guaranteed by the
Dills Act, the charge does not identify the rights at issue or where they are found in the Dills
Act. 	My review of the Dills Act does not disclose any reference to PPP As, nor to the making
of assignments based on seniority.

SA-CE-1663-S
March 17, 2008
Page 3
Further, even considering the factual allegations under a different theory does not support the
issuance
of
a complaint in this matter. To demonstrate a discrimination violation under Dills
Act section 3519(a), the charging party must show that: (1) the employee exercised rights
under the Dills Act; (2) the employer had knowledge
of
the exercise
of
those rights; and (3) the
employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained, or coerced the employees because
of
the
exercise
of
those rights. 	(Novato Unified School District (1982) PERB Decision No. 210
(Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Here, the charge does not allege that Swan engaged in protected activity prior to the denial
of
his PPP A bids, nor that CDCR had knowledge
of
such activity, nor that CDCR took the
complained-of actions because
of
any prior protected activity by Swan.
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
corner
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal before March 27, 2008, I shall dismiss your charge.
If
you
have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief